PLJ 2014 Judgments

PLJ 2014 Karachi 1

Present: Muhammad Ali Mazhar, J.

M/s. DANYAL ENTERPRISES through its Co-Partner--Plaintiff

versus

M/s. A.G.E. & SONS (PVT.) LTD. and 2 others--Defendants

Suit No. 629 of 2013 & C.M.A. No. 6631 of 2013, decided on 5.8.2013.

Partnership Act, 1932 (IX of 1932)--

----S. 69--Specific Relief Act, 1877, Ss. 42, 54 & 56--Civil Procedure Code, 1908--O. VII, R. 11--Partnership agreement--Un-registered firm--Suit for declaration, specific performance and permanent injunction was filed through its co-partner--An application u/Order VII, Rule 11, CPC was filed by defendant that suit was barred u/S. 42 of Specific Relief Act and plaintiff was not a registered partnership firm--Objection regarding legal character and locus standi--Question of--Whether partner of an unregistered firm existing or dissolved, void--Validity--Plaintiff approached High Court for the specific performance of the agreement and Court felt no hesitation to hold that the suit is not barred under Section 42 or any other Section of the Specific Relief Act, if the plaintiff has sought the declaration that the defendant are under obligation to perform the terms of partnership agreement--No suit to enforce a right arising from a contract or conferred by the 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--Neither in the plaint it is stated by the plaintiff that it is registered firm nor any registration certificate and or certified copy of an entry relating to the firm registration has been attached while instituting the plaint--Non-adherence to the provision would debar a Court from entertaining a suit instituted without compliance of the provision as to prior registrations--A partner of an erstwhile unregistered partnership cannot bring a suit to enforce a right arising out of a contract falling within the ambit of Section 69, Partnership Act--Consequently, the plaint is rejected under Order VII Rule 11 C.P.C.--Interim orders were recalled. [Pp. 7, 8, 10 & 11] A, B, C, D, E, G & H

Partnership Act, 1932 (IX of 1932)--

----Ss. 58 & 59--Procedure of registration of firm--Application for registration is suffice to grant registration--Time was granted to procedure registration certificate--Validity--Despite lapse of considerable time, plaintiff has failed to put in an appearance or comply with the directions which shows that the plaintiff has nothing to file and the plaintiff is admittedly an unregistered partnership firm, which is not a juristic person and cannot maintain the suit in its own name. [P. 10] F

Mr. Muhammad Mansoor Mir, Advocate for Plaintiff.

M/s. Rasheed A. Razvi and Syed Haider Imam Rizvi, Advocates for Defendant Nos. 1 & 2.

None present for Defendant No. 3.

Dates of hearing: 21 & 24.6.2013.

Order

This order will dispose of CMA No. 6631 of 2013 filed by the Defendant Nos.1 and 2 under Order VII Rule 11, CPC.

1. The brief facts of the case are that the plaintiff is a partnership firm and has filed this suit through its co-partner. It is alleged in the plaint that the Defendant No. 2 has built up a project known as "Aashiana Building". It is further alleged that the plaintiffs are also engaged in the business of real estate and all co-partners of plaintiff firm had cordial relationship with the Defendant No. 1 as such the Defendant No. 1 proposed the plaintiff to enter into a partnership agreement for re-sale, booking and for sub-leases after making clearance of defendant's company liability, hence, the plaintiff and Defendant No. 1 entered into a partnership agreement on 30.4.2009. The plaintiff has filed this suit for declaration, specific performance and permanent injunction and in the prayer-clause the declaration has been sought that the plaintiff and Defendant Nos. 1 and 2 are under obligation to perform the terms of partnership agreement strictly in accordance with its terms and condition. They have also prayed for the permanent injunction against the defendants not to dispossess the plaintiff from Office No. M-9, Aashiana Building constructed at Plot No. G-21, Block No. 9, Clifton Karachi.

2. The learned counsel for the Defendant Nos. 1 and 2 argued that the plaintiff has failed to disclose any cause of action against the Defendant No. 1. The suit is also barred under Sections 42, 54 and 56 of the Specific Relief Act. It was further avowed that the plaintiff is a partnership firm which is unregistered therefore, suit is barred under Section 69 of the Partnership Act, 1940. He further argued that the person who entered into so-called partnership agreement dated 30.4.2009 is neither a shareholder nor director of the Defendant No. 1. In support of his arguments learned counsel for the Defendant Nos. 1 and 2 has relied upon following case law:--

(1) PLD 1968 Karachi 222 (Alavi Sons Ltd. v. Government of East Pakistan & others). Under Section 42 of the Specific Relief Act, 1877, it was only with regard to these matters that a person could come to the Court for declaratory relief. The phrase "legal character" has been used, in the sense of "status"; which is constituted by the attributes which the law attaches to a person in his individual and personal capacity and which, according to Holland, is referable to such legal conditions as (1) sex, (2) minority, (3) patria potestas' andmanus', (4) coverture, (5) celibacy, (6) mental defect, (7) bodily defect, (8) rank, caste and official position, (9) slavery, (10) profession, (11) civil death, (12) illegitimacy, (13) heresy, (14) foreign nationality, and (15) hostile" nationality. According to Salmond, the term `status' is usually confined to personal legal condition or, personal capacities and incapacities, or compulsory as opposed to conventional personal conditions.

(2) PLD 1967 Dacca 190 (Burmah Eastern Ltd. v. Burmah Eastern Employees' Union & others). The express "legal character" or "status" denotes a Character or status conferred by law on an individual or a number of individuals, viewed as a unit of society and not shared by the generality of the community but only by individuals, placed in the same category of character. The character itself must be conferred by law on persons viewed from the standpoint of membership of the community. It is a status' orcharacter' conferred by law. It is not a creature of contract but of law. Indeed, in most cases one cannot contract out of the `status' with which the law clothes one. For example, a minor cannot contract into majority nor can one, who has attained majority, under law, contract himself into minority.

(3) PLD 1968 Karachi 196 (Province of West Pakistan & another v. M/s. Asghar Ali Muhammad Ali & Co.). Prohibition contemplated by Section 69. Express and mandatory. Suit by unregistered firm. Court prevented from taking cognizance of such suit. Subsequent registration of firm during pendency of suit cannot validate the suit.

(4) 1996 CLC 1205 (Province of Sindh & others v. M/s.Royal Contractors). Section 69. Suit filed by unregistered firm. Maintainability. Plaintiff (firm) was not registered at the time of filing of suit. Plaintiff (firm) at the time when it filed the suit thus lacked requisite competence under Section 69, Partnership Act, 1932 to have recourse to legal proceedings. Partnership firm must be registered under Partnership Act, 1932, for the purpose of filing suit. Provision of Section 69 of the Act being mandatory in character, registration of firm was a condition precedent for exercising right to institute suit. Court would have no jurisdiction to proceed with trial when such condition had not fulfilled. Any suit instituted in contravention of Section 69 of the Act was not maintainable. Provision of Section 69 of the Act being mandatory in its terms, effect of its violation was that suit was at its very inception bad and Court must treat it as having not been filed. Subsequent registration of firm would not make the suit maintainable so as to enable the Court to try it from the date of registration.

1. On the contrary, the learned counsel for the plaintiff argued that the application is misconceived. The cause of action to the instant suit is very much established from the date of execution of partnership agreement dated 30.4.2009. He further argued that executant of partnership agreement namely Muhammad Amin was working in the capacity of General Manager in defendants firm and vide resolution dated 8.3.2008 passed by Board of Directors of the defendant company was assigned to execute agreement/contract or partnership to acquire/generate finances in terms of clause-66 of Articles of Association. He further argued that the plaintiff is registered with Chamber of Commerce and others Government departments and such documentary evidence in respect of registration and statement of bank account under the same title, hence the suit is not barred under Section 69 of Partnership Act and the plaintiff despite being an unregistered partnership firm can maintain this suit. In support of his arguments learned counsel for the plaintiff has relied upon following case law:--

(1) 2000 SCMR 1172 (Province of Punjab & others v. Malik Ibrahim & Sons and another). Suit for recovery. Competence. Non-registration of partnership. Effect. Plaintiff in the suit was partnership concern. Defendants in their written statement had not raised the issue as to lack of registration of plaintiffs partnership firm under Partnership Act, 1932. Plaintiffs were not obliged to submit a certificate of registration or to make any statement on such aspect notwithstanding an averment in an earlier Constitutional petition. Recovery suit filed in the name of firm was not incompetent for alleged lack of registration of firm as there was no occasion for plaintiffs to establish registration of the firm or to rebut the allegation of its non-registration.

(2) PLD 2003 Karachi 314 (Ardeshir Cowasjee & others v. K.B.C.A. & others). The plaintiff has neither stated that it is a registered partnership firm nor produced a certificate of registration of partnership. It is well established that an unregistered partnership is not a legal entity and cannot sue in its own name. (See Section 69 of Partnership Act, 1932, 1994 PTD 194 and 1996 CLD 1205). It is, therefore, questionable whether Suit No. 1793 of 1999 is maintainable in law. The plaintiff in Suit No. 1793/ 1999 shall file the amended plaint. In place of Peace Developers, the unregistered partnership, all the partners shall be substituted as plaintiffs so that the legal lacuna pertaining to the maintainability of the suit is removed.

(3) PLD 1966 S.C. 328 (Usman v. Haji Omer & others). Partnership Act (IX of 1932) Section 4 read with Section 69. Act does not provide any special mode for creation of partnership. Oral agreement. Non-registration under Section 69 does not affect validity of partnership or bar suit for dissolution, accounts, or for realization of property of dissolved firm.

(4) [(2007) 15 Supreme Court Cases 58] (Purushottam and another v. Shivraj Fine Arts Litho Works and others). The contract by the unregistered firm referred to in Section 69(2) of the Partnership Act, 1932 must not only be one entered into by the firm with a third party defendant but must also be one entered into by the plaintiff firm in the course of the business dealings of the plaintiff firm. If the right sought to be enforced does not arise from a contract to which the unregistered firm is a party, or is not entered into in connection with the business of the unregistered firm with a third party, the bar of Section 69(2) will not apply. The contract was entered into with the respondent firm by P, the erstwhile proprietor of the concern. The partnership firm came into existence later. The amount claimed in the suit was due to the proprietor P who carried on his proprietary business in the name and style of "Dinesh Paper Mart". Thus, though the partnership firm, which was unregistered, became entitled to enforce the contractual obligation of the defendant firm which it owed to P, the contract was not one entered into by the unregistered firm with a third party, nor was it one entered into by the unregistered firm with a third party, nor was it one entered into by the unregistered firm in the course of its business dealings with the defendants. The bar of Section 69(2) could not apply to the suit filed by the appellant-plaintiffs.

1. Heard the arguments. Counsel for the Defendant Nos. 1 and 2 have filed application under Order VII, Rule 11, CPC mainly on two grounds that the suit is barred under Section 42 of the Specific Relief Act and secondly, the plaintiff is not a registered partnership firm, hence, the suit is barred under Section 69 of the Partnership Act. So far as the objection regarding the legal character and or locus standi is concerned, the plaintiff has prayed that the Defendant Nos. 1 and 2 are under obligation to perform partnership agreement dated 30.4.2009 entered into between the plaintiff and the Defendant No. 1 which shows that the plaintiff has invoked the jurisdiction of this Court for the specific performance of the aforesaid agreement. It is for the plaintiff to prove the existence of contract and his willingness at all material times to fulfill his part of contract. Learned counsel for the defendants argued that no such declaration can be granted by this Court and he also referred to the case of Alavi Sons Ltd. and Burmah Easter Ltd. (supra) in which the learned Courts have dilated upon Section 42 of the Specific Relief Act and held that the phrase `legal character' used is in the sense of status for which a person can come to the Court for declaratory relief. The legal character or status denotes a character or status conferred by law. An individual or a number of individuals viewed a unit of society and not shared by generality of the community but only by individuals placed in the same category of character.

2. After examining the contents of the plaint and or the controversy involved, I am of the view that the plaintiff has approached this Court for the specific performance of the agreement dated 30.4.2009 and I feel no hesitation in my mind to hold that the suit is not barred under Section 42 or any other section of the Specific Relief Act if the plaintiff has sought the declaration that the Defendant Nos. 1 and 2 are under obligation to perform the terms of partnership agreement even otherwise, this question in this particular case where various contentions have been raised against each other are mixed question of law and fact which require evidence. I am of the firm view that on this count, the plaint is not liable to be rejected and the first objection is not sustainable.

3. Now I would like to take up most crucial point raised in the application that the suit is barred under Section 69 of the Partnership Act. It is clearly manifesting from the record that the plaintiff in this case is a partnership firm which has sued the defendants through its co-partners. I have examined Section 69 of the Partnership Act, which provides that 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. Sub-section (2) of Section 69 of the Partnership Act further provides that no suit to enforce a right arising from a contact shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have shown in the Register of Firms as partners in the firm. Section 58 of the Partnership Act postulates a provision for application for registration through which registration of a firm may be effected at any time by sending by post or delivering to the Registrar of the area in which any place of business of the firm is situated. The same section envisages further procedure and modalities to be fulfilled for the purposes of registration of a firm including the payment of prescribed fee. After complying with the above course of action, further procedure for registration is provided under Section 59 which mentions that when the Registrar is satisfied that the provisions of Section 58 have been duly complied with he shall record an entry of the statement in a register called Register of Firms and shall file statement. The Registration of a firm raises presumption that the parties shown as members of the firm registered as such are actually members of it and in the absence of evidence to the contrary no further proof is necessary. Section 68 deals with the rules of evidence and according to which any statement, intimation or notice recorded or noted in the Register of Firms shall, as against any person by whom or whose behalf such statement, intimation or notice was singed be conclusive proof of any fact therein stated. It is further provided that a certified copy of any entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm, and of the contents of any statement, intimation or notice recorded or noted therein.

4. Neither in the plaint it is stated by the plaintiff that it is registered firm nor any registration certificate and or certified copy of an entry relating to the firm registration has been attached while instituting the plaint. Office has also failed to raise any objection regarding the non-production of registration certificate and or non-registration of plaintiff firm. It was the responsibility of the office to point out such type of major defects in the pleadings at an early stage and immediately upon presentation of the plaint, either the registration certificate should have been asked or an objection should have been raised to file the registration certificate. Office is directed to be careful in future.

5. Learned counsel for the Defendant Nos. 1 and 2 referred to the cases of Province of West Pakistan v. M/s.Asghar Ali Muhammad Ali & Co. and Province of Sindh v. M/s. Royal Contractors. In both the cited cases, it was clearly held that in the case of unregistered partnership firm the Court may prevent from taking cognizance of the suit, even subsequent registration of the firm cannot validate the suit. Provision of Section 69 of the Partnership Act is mandatory in character and registration of firm is condition precedent for exercising right to institute the suit. The Court has no jurisdiction to proceed with the trial when such condition is not fulfilled. Provision of Section 69 is mandatory and effect of its violation is that the suit at its very inception bad and Court must treat it having not been filed.

6. Learned counsel for the plaintiff referred to the case of Province of Punjab & others v. Malik Ibrahim & Sons in which the hon'ble Supreme Court held that the defendants in their written statement has not raised the issue as to lack of registration hence, plaintiffs were not obliged to submit certificate of registration. The facts of this case are distinguishable as it pertains to the full-fledged trial of the case and not the case in which at very initial stage the application under Order VII, Rule 11, CPC was filed. He then referred to the case of Ardeshir Cowasjee (supra) in which this Court in a consolidated judgment rendered in C.P and H.C.A. No. 347/2000 though affirmed that unregistered partnership is not a legal entity and cannot sue in its own name and while remanding matter for decision afresh by the trial Court after recording evidence, granted permission to file amended plaint. The facts of the above case are also distinguishable as the above suit was decreed on the statement of KBCA which judgment and decree was challenged by Sheri in HCA on the ground that the same had been obtained by fraud and collusion with KBCA. In the case in hand neither application was filed by the plaintiff for impleading all the partners nor any application for amendment in the plaint. The Court cannot permit the plaintiff to cure and alleviate the legal defects on its own motion when vested right is created in favour of the defendant and or the suit is barred by any express provision of law. The next case is Usman v. Haji Omer & others in which the hon'ble Supreme Court held that non-registration under Section 69 does not affect validity of partnership or bar suit for dissolution of accounts or for realization of property of dissolved firm. This was the case in which the issue was involved between the partners of a dissolved firm, which has no germane with the facts and circumstances of this case. The last case was from Indian Supreme Court (Purushottam and another v. Shivraj Fine Arts Litho Works & others), in which the learned Court first endorsed Section 69 of the Partnership Act and then held that if the right sought to be enforced does not, arise from a contract to which the unregistered firm is a party, or is not entered into in connection with the business of the unregistered firm with a third party, the bar of Section 69(2) will not apply. The facts of this case are also distinguishable in which the initial agreement was with the proprietor of a firm and the partnership came into existence later.

7. The prohibition laid down under Section 69 of the Partnership Act is expressed, explicit and mandatory which cannot be dispensed with by the Court even with the consent of parties or failure to plead or to argue the point at the outset. Section 69 of the Partnership Act contains most vital clause. The Act does not in so many words make registration of firm compulsory nor does it imposes penalties, but this Section forbid the bringing of certain suits in respect of partnership which have not been registered under the Act. I am of the view that the Court has no discretion and the rules stated in the above section are mandatory. The section couched in language and the legislature's intent makes it clear that non-adherence to the provision would debar a Court from entertaining a suit instituted without compliance of the provision as to prior registrations as laid down in the section. The language of this section as it stands today is imperative and cannot be discountenanced and must therefore be strictly interpreted.

8. On 24.6.2013 learned counsel for the plaintiff filed a copy of written request allegedly sent to the Registrar Firms on 29.4.2008 along with from "A" (application for registration of firm) and argued that the application for registration of plaintiff was filed in the year 2008, but he failed to file any registration certificate. As a fallback, the learned counsel referred to Section 58 of the Partnership Act and argued that the registration of firm may be effected at any time by delivering a statement on the prescribed form to the Registrar. According to him, mere sending an application for registration is suffice to grant registration which is in my view a misconceived argument. Section 58 in simple terms prescribes a procedure for making application which is controlled and regulated by Section 59. This section in fact relates to the procedures of registration which I have already discussed. At the time of reserving the order, one week time was granted on the request of learned counsel for the plaintiff enabling him to produce the registration certificate if any, along with copy of paid challan. Despite lapse of considerable time, the learned counsel for the plaintiff has failed to put in an appearance or comply with the directions which shows that the plaintiff has nothing to file and the plaintiff is admittedly an unregistered partnership firm, which is not a juristic person and cannot maintain the suit in its own name.

9. The result of this case shows that the disability of an unregistered firm to sue is of crippling nature. The disability inflicted by Section 69 is so compulsive and comprehensive that there is no escape from it. This works out as an indirect compulsion for registration. The English law compels registration at the pain of penalty; Section 69 compels it at the pain of disability to sue. Thus it becomes necessary for the survival of a firm that it should be registered. Ref: Law of Partnership, Seventh Edition, 2009, Satyajeet Desai. In the case of Loonkaram Sethia v Ivan E. John, (1977)1 SC 379: AIR 1977 SC 336:(1977) 1 SCR 853, the Court held that a bare glance at the section is enough to show that it is mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void. In other words a partner of an erstwhile unregistered partnership cannot bring a suit to enforce a right arising out of a contract falling within the ambit of Section 69. Ref: Law of Partnership, Principles, Practice & Taxation, Third Edition authored by Avtar Singh.

10. As a result of above discussion, I am of the firm viewpoint that the suit is barred under Section 69 of the Partnership Act. Consequently, the plaint is rejected under Order VII, Rule 11, C.P.C. The interim orders dated 15.5.2013 are also recalled.

(R.A.) Plaint rejected

PLJ 2014 Karachi 11 [Sukkur Bench]

Present: Salahuddin Panhwar, J.

RAJIB ALI SIYAL--Petitioner

versus

Mst. ZOYA ASAD and another--Respondents

C.P. No. S-344 of 2013, heard on 18.3.2013.

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

----S. 10(4)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Application for setting aside ex-parte decreed on ground of khulla--Maintainability of petition--Haq Mehr was not received and Nikahnama was not registered--Validity--Where pre-trial proceedings failed between parties and wife intended to resort to such course only then judgment for dissolution of marriage had to be recorded by family judge with direction for restoration by family judge with direction for restoration of haq mehr to husband which the wife had received in consideration of marriage--It was the wife alone, who can ask Family Court to pass judgment of dissolution of marriage by showing her readiness to surrender haq mehr, which she had received in consideration of marriage because objective of addition of proviso by virtue of Ordinance, (LV of 2002) was nothing but to avoid delay in proceedings and to afford right and remedy available to wife seeking khula expeditiously--Where judgment and decree was not being passed on move of wife to course, enshrined by providing clause of wife to course, enshrined by providing clause of S. 10(4) of Act, no question of order of compulsory restoration of dower arises--Petition was not maintainable. [Pp. 14 & 15] A, B, C & F

Family Court Rules, 1965--

----R. 13--Suit for dissolution of marriage on ground of khula--Decreed ex-parte--Application for setting aside ex-parte decree before family Court--Jurisdiction of--Since provision of Rule 13 of Family Court Rules, 1965 provides a remedy to petitioner to seek setting aside of ex-parte decree or proceedings on cogent grounds to family Court which course had admittedly been resorted to by petitioner--It will not be just and proper to take over jurisdiction of Family Court to decide an application for setting aside ex-parte judgment which was competent by Rule 13 of Family Court Rules, 1965. [P. 14] D

Benami Transaction--

----According to nikah-nama, residential plot was transferred in name of wife--Registered sale deed--Validity--Plea regarding benami transaction cannot be resolved by family Court and in order to agitate such issue, jurisdiction lies to Civil Court, petitioner was at liberty to avail remedy before Court, having jurisdiction if so advised. [P. 15] E

Mr. Achar Khan Gabole, Advocate for Petitioner.

Mr. Abdul Sattar Soomro, Advocate for Respondent No. 1.

Mr. Shahabdudin Shaikh for State Counsel.

Date of hearing: 18.3.2013.

Order

The petitioner has assailed the Judgment dated 07.1.2013, passed by Family Court, Kandiaro in Family Suit No. 74 of 2012 (Re- Mst. Zoya Asad vs. Rajib Ali), whereby the suit of the Respondent No. 1/plaintiff was decreed as Ex-parte and Khulla was granted.

1. Relevant facts, as set-out in the plaint, are that the marriage of the Respondent No. 1/plaintiff was solemnized with the petitioner/ defendant on 25.3.2012 and such Nikah was performed at Ward No. 10 Mehrabpur which was not registered. The Haq Mehr was fixed as Two Tolla Gold but same was not paid; from the said wedlock there was no issue. The petitioner/defendant was maltreating the Respondent No. 1/plaintiff on petty matters and always used abusive language with her. So many times the Respondent No. 1/plaintiff complained to her parents regarding behavior, attitude of Petitioner/defendant; about two months back, the petitioner/defendant expelled her from his house. Thereafter the Respondent No. 1/plaintiff continued to live with her parents, therefore, the element of love, respect, mutual trust and compatibility of minds was missing between the spouses so she had no option but to come forward for dissolution of marriage as because of hatred in her mind as she was not ready to live with the petitioner/defendant in his house as his wife and, she, even, pleaded, that there was no hope of compromise between the parties, therefore, the suit for dissolution of marriage was filed on the ground of Khula with the following prayers:--

(a) To dissolve the marriage of the plaintiff with the defendant on the ground of Khulla.

(b) To direct the defendant to pay maintenance for last two months till the `iddat' period at the rate of Rs. 5000-00 per month, in case of failure the same may be recovered from the defendant through process of law.

(c) The costs of the suit borne by the defendant.

(d) Any other relief which this Court deems fit and proper be awarded to her.

1. It is further revealed that after institution of suit, summons were issued to the petitioner/defendant by all modes, including publication in daily Kawish but inspite of that the petitioner/defendant did not appear before the trial Court and in consequence whereof ex-parte Judgment was passed and marriage of the Respondent No. 1/plaintiff was dissolved on the ground of Khulla.

2. Counsel for the petitioner, inter-alia, contended that the impugned Judgment is illegal and not maintainable under the law; same is managed; the petitioner/defendant had been condemned unheard; infact Nikahanama was registered in respect of marriage of petitioner and Respondent No. 1, but Respondent No. 1 deliberately concealed such fact in order to avoid from restoration of Haq Mahar which is, otherwise, mandatory requirement of law as envisaged u/S. 10(4) of Muslim Family Courts Act, 1964; impugned judgment is completely departure of mandatory provisions of law and without recording evidence and restoration of Haq Mahr, trial Court was not competent to grant Khulla in exercise of powers u/S. 10(4) of Muslim Family Courts Act, 1964; he has relied upon PLD 2006 (Karachi) 308; 2006 CLC 1662, PLD 2010 (Lahore) 308 and PLD 2006 (Karachi) 272.

3. Conversely, counsel for Respondent No. 1 argued that the impugned Judgment is in accordance with law as alleged Haq Mahar was not received by Respondent No. 1 and Nikahanama was not registered; petitioner/defendant has filed an application for setting-aside the Ex-parte Judgment and Decree before the trial Court, therefore, the instant petition is not maintainable under the law, as he cannot avail two remedies at the same time.

4. Heard counsel's, perused the record.

5. The learned counsel for the petitioner has insisted much upon the providing clause of Section 10(4) of West Pakistan Family Courts Act, 1964, while attacking the judgment and decree of learned Family Court Judge, therefore, it is pertinent to examine said provision and it will be conducive to refer the same for convenience and understanding:

"Section 10(4). If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for (the recording of the) evidence:

Provided that notwithstanding any decision or judgment of any or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, pass decree for dissolution of marriage forthwith and also restore the husband Haq Mehr received by the wife in consideration of marriage at the time of marriage"

1. The plain reading of the above provision makes it clear that it speaks about the situation where pre-trial proceedings fails between parties and the wife intends to resort to such course only then the Judgment for dissolution of marriage has to be recorded by the Family Judge with direction for restoration of Haq Mehr to husband which the wife has received in consideration of marriage.

2. It is also significant to add here that it is the wife alone, who can ask the Family Court to pass the Judgment of dissolution of marriage by showing her readiness to surrender Haq Mehr, which she received in consideration of marriage because the objective of addition of proviso by virtue of Ordinance (LV of 2002) dated 01.10.2002 is nothing but to avoid delay in proceedings and to afford right and remedy available to wife seeking Khulla expeditiously.

3. Since, it is a matter of record that in the instant case the defendant/petitioner remained absent despite issuance of process through all modes hence question of failure of pre-trial proceeding does not arise at all. Accordingly, where the judgment and decree is not being passed on move of the wife to the course, enshrined by providing clause of Section 10(4) of the Act, no question of order of compulsory restoration of dower arises.

4. It is also a matter of record that petitioner/defendant has filed an application before the trial Court for setting-aside the impugned judgment; simultaneously he has filed the instant petition. Since the provision of Rule 13 of West Pakistan Family Court Rules, 1965 provides a remedy to the defendant/petitioner to seek setting aside of Ex-parte decree or proceedings on cogent grounds to the learned Family Court Judge which course, has admittedly been resorted to by the petitioner/defendant. In such circumstances it will not be just and proper to take over the jurisdiction of the Family Court to decide an application for setting aside Ex-parte judgment and decree which is, otherwise, competent by Rule 13 of the W.P. Family Court Rules, 1965.

5. Before parting, I would like to respond to the plea of petitioner that according to Nikah-nama a residential plot was transferred in the name of Respondent No. 1. In that respect, I have examined such registered sale-deed, which reflects that same was executed by one Weeran Khan S/o Mashghool Khan Jatoi, in favour of Mst. Zoya Asad (Respondent No. 1), with sale consideration of Rs. 3000-00, therefore, it is pertinent to mention here that such deed has no nexus with the instant matter, however, the petitioner may claim that such document relates `to the Be-nami' transaction and such plot was purchased by petitioner in the name of Respondent No. 1, thus, Suffice to say that plea regarding Be-nami transaction cannot be resolved by family Court and in order to agitate this issue, jurisdiction lies to the Civil Court, hence, the petitioner is at liberty to avail remedy before the Court, having jurisdiction, if so advised.

6. Regarding case law relied upon by counsel for petitioner, after examining the same, with profound respect: same relates to the exercise of powers u/S. 10(4) of Muslim Family Court Act, 1964, but the instant case, as discussed above, is on different footings, therefore, referred precedent's are not applicable in the instant case.

7. In consequence of what has been discussed above, I find that the petition is not maintainable under the law consequently same was dismissed with short order dated 18.3.2013.

(R.A.) Petition dismissed

PLJ 2014 Karachi 15

Present: Irfan Saadat Khan, J.

Mst. SHIREEN RASHEED--Appellant

versus

DEPUTY DISTRICT OFFICER (CDGK) DEFUNCT KDA WING OFFICER AT CIVIC CENTRE, KARACHI and 4 others--Respondents

IInd Civil Appeal No. 5 of 2013, decided on 22.4.2013.

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

----S. 100--Second appeal--Claim regarding allotment of plot was found to be incorrect sought directions from Court for execution of lease--If any fraud was played with appellant or previous buyers, official could not be held responsible--Validity--If it is proved that they or any one of them had played a fraud with appellant, she may be able to redress her grievance by getting back amount paid by her to seller--Appellant was not directed to institute any proceedings against official arrayed in the suit for seeking prayers in respect of plot which had been held to be non-existent--Appellant did not file any suit either against her predecessor or against an employee of City Distt. Govt. against whom she could had any grievance--Petitioner had failed to make out a case of proving her ownership right so far as plot and only on humanitarian ground tried to accommodate her which she flatly refused--Second appeal was found to be totally devoid of any merit and was liable to be dismissed--Appeal was dismissed. [P. 19] A & B

Mrs. Shabana Ishaque, Advocate for Appellant.

Date of hearing: 17.4.2013.

Judgment

The appellant is aggrieved by the judgment dated 13.11.2012 and decree dated 26.11.2012 passed by the learned IV Additional District Judge, Karachi Central, in Civil Appeal No. 172 of 2010, whereby the same was dismissed and the Judgment and Decree dated 26.10.2010 passed by First Senior Civil Judge, Karachi Central in Suit No. 296 of 2008, whereby the suit was dismissed, was maintained.

1. Brief facts of the case are that plot of land bearing No. L-18. Sector 11-B. ST-12, North Karachi, Karachi measuring 80 sq. yards was initially allotted to one Mst. Razia Bano in lieu of Plot No. L-28, Sector 1-B-1, North Karachi who transferred the same in the name of Zille Haider. Thereafter, the appellant purchased the said plot from the said Zille Haider for total sale consideration of Rs. 225,000/-. The appellant applied for mutation of the plot in her name which was done. The appellant raised construction on the said plot at a cost of Rs. 100,000/- and is enjoying the same peacefully and without any hindrance. However, when the appellant applied for lease of the said plot the respondents raised objections. In the year 2003 the Respondents No. 1 and 2 started creating hurdles in the peaceful and lawful possession of the appellant. Therefore, the appellant filed a constitutional petition bearing C.P. No. D-23 of 2003. This petition was dismissed vide order dated 27.1.2004. However, while dismissing the petition, the learned DB observed that the petitioner would be free "to initiate legal proceedings against her predecessor-in-interest as well as the said Asif Saeed."

2. In view of the above observations, the appellant filed Suit No. 296 of 2008 for declaration and permanent injunction against City District Government, Karachi, and the defunct KDA. This suit was dismissed vide judgment and decree dated 26.10.2010 by First Senior Civil Judge, Karachi Central and the appeal filed to assail the said judgment and decree, Bearing No. 172 of 2010, was also dismissed by IV Additional District Judge. Karachi vide his judgment dated 13.11.2012. Hence, the present second appeal has been filed impugning both the above judgments.

3. Learned counsel for the appellant submitted that the appellant had purchased the disputed property from one Zille Haider for valuable consideration, who in turn, purchased the same from the original allottee Mst. Razia Bano. She stated that in order to safeguard her interest, the petitioner also filed a constitutional petition which was dismissed, however, the learned Division Bench, according to the counsel for the appellant, directed the petitioner to initiate legal proceedings against the respondents. The learned counsel also submitted that the two Courts below have passed the judgments and decrees without appreciating the evidence of the parties. In this regard she referred to the excerpts from the evidence of the parties from page 9 of the file. The learned counsel further submitted that the Judgments of the two Courts below are a result of non-reading and mis-reading of the evidence on record. She, therefore, prayed that the impugned judgments/decrees may be set aside.

4. Before proceeding to the directions contained in the order dated 27.1.2004, it would be advantageous to refer to the evidence of the appellant. The appellant, during her cross-examination, stated that "It is incorrect to suggest that I have not visited the record room and checked the record of suit plot in question. Clerk Asif Ali had taken me to the record room of KDA and shown me the concerned file of plot in question." It is pertinent here that the method adopted by the appellant was not proper as she is not required to go the record room of KDA and see the file rather she should have filed an application for Search Certificate which she failed to do. It has also come on record that the main character behind all this scam was Clerk Asif Ali against whom proceedings have been initiated. Thus, if any fraud was played with the appellant or the previous buyers by the said Asif Saeed, the official respondents could not be held responsible for the same.

5. A perusal of the orders passed in C.P. No. 23 of 2003 reveals that while the appellant was claiming to have purchased the said plot from one Zille Haider, who had purchased the said plot from the original allottee, namely Razia Bano, and wanted the said plot to be leased in her name, the official respondents denied the existence of any such plot in the Lay-Out-Plan of the area. In this regard reference may be made to order dated 16.12.2003 (available at page 103 of the file) wherein it has been noted that Para 2 of the parawise comments filed by the respondent clearly says that Plot No. L-18, Sector 11-B, ST-12, North Karachi Township has never been allotted to anybody by KDA. It was further stated that Plot ST-12, measuring 0.61 Acres is reserved for "Community Centre" as shown in the Lay-Out-Plan for Sector 11-13. North Karachi Township. In the same para the claim of the appellant that she purchased "the same from Mst. Razia Bano" has been termed as nothing, but a concocted story. The Lay-Out-Plan of Plot ST-12 is available at page 151 which clearly shows that Plot ST-12 is reserved for Community Centre. Finally the petition was dismissed vide order dated 27.1.2004. It would be advantageous to reproduce the same as under:

"Mr. Muhammad Wasim has filed affidavit in terms of the order dated 23.12.2001 which is taken on record. It has been explained that the entire area of ST-12 measuring about 0.61 Acres was reserved for community centre and therefore no smaller plots (L-18 etc.) were carved out. The statement to the effect that such plot does not exist was premised on the above basis. Upon our inquiry the concerned officers stated that the matter relating to issuance of forged documents was investigated and one Asif Saeed, Clerk of the KDA, was identified and he is facing trial before the Special Judge, Anti-Corruption.

In any event with the object of considering whether the petitioner could be accommodated upon humanitarian consideration, she was asked whether she would be willing to pay the auction price in respect of alternate ST plot but she expressed her inability to do so. In the circumstances, we have no option but to dismiss this petition but the petitioner would be free to initiate legal proceedings, both against her predecessor in interest as well as aforesaid Asif Saeed. No further compliance is required.

The petition stands dismissed alongwith the listed applications."

1. A perusal of the above quoted Order of the learned Division Bench of this Court clearly shows that the claim of the appellant regarding allotment of the plot in favour of Mst. Razia was found to be incorrect and, therefore, the petition filed by the appellant was dismissed. During the course of arguments it transpired that Asif Saeed, a Clerk of KDA, was behind all this scam and it was brought to the notice of the Court that he is facing trial before the Anti-Corruption Court. Since the appellant was victim of the acts of fraud committed by said Asif Saeed, therefore, while her claim was rejected, but it was observed that she "would be free to initiate legal proceedings, both against her predecessor-in-interest as well as aforesaid Asif Saeed". There was no mention of the present respondents in that order. However, instead of pursing her remedy against her predecessor-in-interest and the said Asif Saeed, the appellant filed Suit No. 296 of 2008. praying for a declaration that she is the legal and lawful owner of Plot L-18, Sector 11-B, ST-12, North Karachi Township, Karachi and sought directions from the Court for execution of lease by the respondents in respect of the said plot in her favour. She was ill-advised to seek the above prayers from a subordinate Court as it was already held by this Court that Plot No. L-18, Sector 11-B. ST-12, North Karachi Township, Karachi does not exist and that Plot No. ST-12 is a plot reserved for Community Centre. The appellant also lost sight of the observation made by this Court that she "would be free to initiate legal proceedings, both against her predecessor-in-interest as well as aforesaid Asif Saeed so that if it is proved that they or any one of them has played a fraud with the appellant she may be able to redress her grievance by getting back the amount paid by her to the seller. The appellant was not directed to institute any proceedings against the official respondents arrayed in the suit for seeking prayers in respect of a plot which the learned Division Bench has already held to be non-existent. It is interesting to note that the appellant did not file any suit either against her predecessor in interest i.e. Zille Haider or against Asif Saeed, an employee of Respondent No. 3, against whom she could have any grievance. Since so far as the role of other respondents is concerned the High Court has already, while deciding C.P. No. D-23 of 2007, come to the conclusion that she has failed to make out a case of proving her ownership right so far as the plot in question is concerned and only on humanitarian ground tried to accommodate her which she flatly refused.

2. In view of the above discussions, the present second appeal is found to be totally devoid of any merit and is liable to be dismissed.

3. This II Appeal was heard on 17.4.2013 and was dismissed by a short order, the above are the reasons for the same.

(R.A.) Appeal dismissed

PLJ 2014 Karachi 19

Present: Muhammad Ali Mazhar, J.

Mst. FATIMA BAI and 12 others--Plaintiffs

versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Controller of Building, Karachi & another--Defendants

Suit No. 1003 of 1997, decided on 19.4.2013.

Karachi Building and Town Planning Regulation, 2002--

----Regul. 1.5--Dangerous building--No demolition proceedings were initiated and was still intact--Validity--Unless proper inspection is carried out by technical committee, constituted under regulations, no definite findings can be given whether structure of shop occupied by plaintiffs are in sound and stable condition. [P. 26] B

Sindh Building Control Ordinance, 1979 (V of 1979)--

----S. 14--Notice with malafide intention--Dangerous building--Mere filing written statement without coming into witness box by deponent does not attach any sanctity and no value can be accorded to any such written statement--Held: It is well recognized legal principle about discharge of burden of proof that party approaching Court of law for grant of relief has to discharge its own burden and has to stand on its own case of opposite party can be availed by him. [P. 26] C

2010 SCMR 1630, ref.

Sindh Building Control Ordinance, 1979 (V of 1979)--

----S. 22-A--Sindh Building Control Ordinance (Amendment), 1982, S. 29-A(3)--Scope of--Dangerous building--Committee of experts was constituted--Notification to frame uniform building byelaws--Validity--Authority may frame regulation not in consistent with provision of Ordinance and Rules--Govt. of Sindh constituted a committee of experts from official and professional bodies to frame uniform building byelaws and committee decided to frame uniform building and town planning regulation for the whole Karachi--Regulations were given legal effect of Section 29-A(3) of Sindh Building Control Ordinance (Amendment) 1982. [P. 29] I

Sindh Building Control Ordinance, 1979 (V of 1979)--

----Ss. 14 & 21-A--Dangerous building--Demolition notice was issued by K.B.C.A.--Notice was based on mala fide intention--Violation of principle of natural justice and equity--Shops were in sound condition and stable--No right of hearing was afforded after issuing notice--Stability certificate--Statutory responsibility and obligation--Validity--No inspection report and photographs are attached to demonstrate High Court cannot give any exact or specific finding to the effect that the building is in stable condition or not, particularly in a situation when the plaintiff himself admitted in the cross examination that the building is 50 years old which is in dilapidated condition--Notice under Section 14 of the Sindh Building Control Ordinance, is liable to be cancelled for the reasons that it was issued without inspection, without providing any opportunity to the plaintiffs of being heard and without calling sufficient material and on the basis of such plea, the plaintiffs have also claimed permanent injunction against the defendant--If any building is declared or found dangerous but at the same time it is mandatory that no action shall be taken under Section 14 unless the person who is likely to be affected is given opportunity of being heard--No opportunity was provided to the plaintiffs of being heard, which is against the principle of natural justice and unless proper procedure is adopted, no act of demolition can be taken place--Authority failed to issue notice to the plaintiff to show cause as to why building should not be demolished before directing plaintiff to remove/demolish building--Such omission was a gross violation of law and principle of natural justice--No opportunity of being heard was afforded while issuing impugned notices and despite a categorical statement made in the affidavit in evidence, no cross-examination on said particular aspect was conducted by defendant hence such statement was gone un-rebutted--Plaintiffs were given any right of hearing or opportunity of being heard but direct notice for demolition was issued which was in violation and contravention of Section 14 of the Ordinance--Authority may frame regulation not in consistent with the provision of the Ordinance and the Rules made thereunder. Government of Sindh constituted a committee of experts from official and professional bodies to frame uniform building byelaws and the committee decided to frame uniformed building and town planning regulation for the Karachi Division--In absence of express exclusion of the right of hearing, petitioners being in occupation of premises in question were entitled to have notice from inspection committee. Report of inspection committee on basis of which houses/premises in occupation of petitioners were declared to be dangerous having been prepared without notice to petitioners was declared to be without lawful authority and of no legal effect--Before taking any action of demolition, ample opportunity is required to be afforded to the occupants--Impugned notices are illegal and no action detrimental to the interests of the plaintiffs can be taken on the basis of impugned notices--Suit is decreed to an extent that impugned notices were issued in violation and contravention of Section 14 of the Sindh Building Control Ordinance, 1979, hence no action for demolition can be initiated by the K.B.C.A. on the basis of impugned notices--If any such action is envisioned or initiated in future, the principle of natural justice shall be followed in letter and spirit and ample opportunity of hearing shall be afforded to the plaintiffs in view of Section 14 off the Sindh Building Control Ordinance, 1979. [Pp. 25, 27, 28, 29, 30 & 31] A, D, E, F, G, H, I, J, K, L, M, N & O

2000 MLD 247, 1984 CLC 2476, 1993 CLC 2491, 1992 CLC 518, 2002 MLD 1673, PLD 1997 SC 3 & 2001 YLR 2542, ref.

Mr. Khalid Akhter, Advocate for Plaintiffs.

Ms. Saba Siddiqui, Advocate for Defendant No. 1.

Mr. Tahir Nisar, Deputy Director KBCA, Saddar Town, Karachi.

None Present for Defendant No. 2.

Date of hearing: 29.1.2013.

Judgment

The plaintiffs have filed this suit for declaration, cancellation and permanent injunction with the following prayers:--

(a) To pass a judgment and decree in favour of the plaintiffs and against the defendants thereby declaring the impugned Notices (Annexures A-22 to A-24) No. KBCA/ KDA/DCB-VII/DRO-1/97, dated 1-8-1997, being in violation of Section 14 of S.B.C. Ordinance, 1979 pertaining to ground floor construction of Shops Nos. 11, 12 and 13 of Plot No. 24-G.K.I, (GK-I/24) of Ghulam Hussain Kassim Quarters, Madina Masjid, Kharadar, Karachi, issued without Inspection, without providing any opportunity to plaintiffs of being heard and without gathering and calling for sufficient material/proof is patently illegal, based on mala fide, hence un-enforceable and of no legal effects and declared as cancelled.

(b) To grant permanent injunction against the defendants, their agents, colleagues, officials, sub-ordinates, officers, contractors, demolition squad, attorneys or anybody else acting through them or on their behalf from demolishing the construction of ground floor pertaining to 3 rented Shops Nos. 11, 12 and 13 measuring about 175.50 Sq.ft 213.50 Sq.ft and 179.25 Sq.ft respectively on Plot No. 24/GK-I (GK-I/24) Ghulam Hussain Kassim Qtrs. Near Madina Masjid, Kharadar, Karachi, as the construction of ground floor Shops, is neither ruinous nor dangerous.

(c) Cost of the suit.

(d) Any other equitable relief, which this Hon'ble Court may deem fit and proper under the circumstances of the case.

1. The brief facts as narrated in the plaint are that the plaintiffs' late father was tenant in Shop Nos. 11, 12 and 13 ground floor, Plot No. 24, GK-I, Ghulam Hussain Kassim Quarters, Karachi and after his death, the plaintiffs are carrying on business in the aforesaid shops. The previous landlord used to pressurize plaintiffs' father for exorbitant increase in the rent and on refusal he filed the Suit No. 1520/1988 and a rent case. Since the previous landlord refused to accept the rent therefore, the rent was deposited in the M.R.C. in Court. After disposal of the civil suit and rent case, the plaintiffs tendered rent to the previous landlord but they refused to accept the rent hence, again the plaintiffs left with no option but to deposit the rent in Court.

2. The plaintiffs received a notice from Defendant No. 2 in which the rent for the month of December, 1995 to July, 1996 was claimed with further intimation that the Defendant No. 2 has purchased the property in question. The plaintiffs have also alleged that the Defendant No. 2 attempted to dispossess the plaintiffs by show of force.

3. The grievance of the plaintiffs in this suit is that the Defendant No. 1 issued notice under Section 14 of the Sindh Building Control Ordinance, 1979 and declared the tenement dangerous which are in occupation of the plaintiffs. It is alleged in the plaint that the impugned notice is based on mala fide intention as the same has been issued without any inspection of the property in question and even without affording any right of audience to the plaintiffs, which is totally in violation of principle of natural justice and equity.

4. The Defendant No. 1 failed to file written statement hence vide order dated 12.10.1998, the Defendant No. 1 was declared ex-parte while the Defendant No. 2 filed his written statement in which he denied all the allegations against him however, he admitted that demolition notice was issued by the Defendant No. 1 and the building was declared dangerous but he totally denied that the notice was collusive. He further stated in the written statement that the building was declared dangerous and it was also advertised in the newspaper. The Defendant No. 2 also stated that there was no violation of any provision of Sindh Building Control Ordinance while issuing notices to the plaintiffs. He further stated that the building was inspected by the Standing Committee for Dangerous Buildings and thereafter it was declared dangerous.

5. On 7.12.1998 this Court settled the following issues:--

(1) Whether the construction of suit shops is in good/sound condition if so its effect?

(2) Whether the impugned notices issued by the Defendant No. 1 have been issued illegally and in collusion with Defendant No. 2 as the same are based on mala fide if so its effects?

(3) Whether the Defendant No. 2 wants to dispossess the plaintiffs from the suit shops through Defendant No. 1 with bad and mala fide intention?

(4) Whether the plaintiffs are entitled for the relief claimed?

(5) Whether the impugned notices dated 1.8.1997 issued by the K.B.C.A. are liable to be cancelled?

(6) What should the decree be?

1. The plaintiffs examined Plaintiff No. 5 Abdul Aziz and Shoaib A. Hashmi, Architect/Engineer. The Defendant No. 1 failed to file any written statement but they examined Syed Asif Ali Rizvi, Deputy Controller Buildings, KBCA. The Defendant No. 2 failed to lead any evidence. On careful examination of evidence adduced by the parties and after hearing the arguments of the learned counsel, my findings are as under:--

Issue No. 1

1. In order to support the contention that the shops in questions are in sound condition and stable. The plaintiffs produced their witness Shoaib A.Hashmi, Professional Architect who filed his affidavit in evidence and also attached the stability certificate dated 8.8.1997 as Exb.P-29 and appeared in the witness and deposed that structure on the plot in question is in perfect and sound condition. None of the defendants cross-examined this witness. The Plaintiffs No. 5 appeared in the witness-box but he was only cross-examined by the counsel for the Defendant No. 1. In the cross-examination he admitted that the building in question is 50 years old and in dilapidated condition but voluntary stated that the shops in his possession and occupation are not in dilapidated condition. No cross-examination was conducted by the counsel for the Defendant No. 1 to the statement of the plaintiff that no right of hearing was afforded by the Defendant No. 1 after issuing notice under Section 14 of the Sindh Building Control Ordinance, 1979. The witness of the Defendant No. 1 along with his affidavit in evidence produced public notices published in daily Jang as Exb.D-2 & Exb.D-3 which pertains to dangerous buildings and it is a fact that the building in question is also mentioned in public notices dated 27.6.2006 and 25.6.2007 (Exb.D-2 and Exb.D-3).

2. In the cross-examination, the witnesses of the Defendant No. 1 stated that he does not know whether any shop had fallen down. He also admitted that he has not produced any material to show that the shops in suit are dangerous and dilapidated. He further admitted that he has no record about inspection of suit shops in 1997. The evidence led by both the parties unequivocally show that though the plaintiffs admitted that the building is dangerous but he contended that the shops in their occupation are not dangerous and in support of their contention he only produced private architecture who issued stability certificate but on the other hand the witness of the Defendant No. 1 also failed to produce any inspection report which may show the correct picture of the building though he produced public notice in which the building in question was also included. Learned counsel for the plaintiff argued that in view of the stability certificate produced by the private architect it is clear beyond any shadow of doubt that the shops in occupation of the plaintiffs are in stable condition though the building is old and other portion is in dilapidated condition. He further argued that the witness of the Defendant No. 1 failed to produce any cogent evidence which may suffice to show that any inspection was carried out to determine the stability of buildings. On the contrary counsel for the Defendant No. 1 argued that in public notice the building in question was rightly included in the list of dangerous building circulated through public notices.

3. Since no cogent or plausible material is available on record except the stability certificate dated 8.8.1997, but the fact remains that nothing reflects from the certificate as to when the inspection was carried out and on what basis or criteria, the premises was declared stable. No inspection report and photographs are attached to demonstrate the structure stability, therefore, this Court cannot give any exact or specific finding to the effect that the building is in stable condition or not, particularly in a situation when the plaintiff himself admitted in the cross-examination that the building is 50 years old which is in dilapidated condition. It is also an important aspect of the matter that though this suit was filed in the year 1997 but it is pertinent to point out that under Section 21-A of the Sindh Building Control Ordinance, 1979, "The Karachi Building and Town Planning Regulations" were framed in the year 2002 and under Regulation 1-5 of Regulation, 2002, it is provided that notwithstanding the replacement of 1979 regulations, all proceedings initiated under said regulations shall be deemed to have been initiated under the Regulation, 2002. Since the building in question is still intact and no demolition proceedings were initiated or carried out, therefore, in the present circumstances, the aforesaid Regulations, 2002 with amendments made up to 2010 are very much applicable to settle down the controversy. Chapter 7 of the Karachi Building and Town Planning Regulations, 2002 pertains to the dangerous building in which it is provided that the Controller of the Building of the concerned circle shall examine every building or structure in his circle reported as dangerous and shall refer the matter to the Technical Committee constituted by the authority. Similar provision was also available in 1979 Regulations. In my view, unless proper inspection is carried out by the Technical Committee, constituted under the said Regulations no definite findings can be given whether the structure of the shops occupied by the plaintiffs are in sound and stable condition. Issue answered accordingly.

Issues Nos. 2 and 3

1. Both these issues can be decided, through common findings. The claim of the plaintiffs is that the notices under Section 14 of the Sindh Building Control Ordinance, 1979 were issued by the Defendant No. 1 in collusion with Defendant No. 2 as the Defendant No. 2 wanted to dispossess the plaintiffs from the shops in question through Defendant No. 1 with mala fide intention. Though the Defendant No. 1 failed to file the written statement and the Defendant No. 2 though filed the written statement but failed to lead evidence. Mere filing written statement without coming into the witness-box by the deponent does not attach any sanctity and no value can be accorded to any such written statement. However, at the same time this does not mean that whatever plaintiffs have stated in the plaint shall deem, to be true and correct. It is well recognized legal principle about discharge of burden of proof that party approaching the Court of law for grant of relief has to discharge its own burden and has to stand on its own legs to succeed and no benefit of any weakness in the case of opposite party can be availed by him. Ref: 2010 SCMR 1630 (Sultan Muhammad & another v. Muhammad Qasim & others).

2. There is nothing on record to show that the Defendant No. 1 on the behest of Defendant No. 2 issued the notice. There may be many flaws or defects in the notice due to not adhering to the procedure prescribed under the law but it does not mean that the notice was issued with mala fide intention rather the Defendant No. 1 under their statutory responsibility and obligation issued the notice and also included the building in question in the list of dangerous building. The learned counsel for the plaintiffs did not argue that whatever action initiated by the Defendant No. 1 against the plaintiffs was in collusion with Defendant No. 2 but his main emphasis was on the procedural compliance that no right of audience was provided by the Defendant No. 1 after issuing the notice. Counsel for the Defendant No. 1 also argued that the Defendant No. 1 performed his statutory obligation and no such notice was issued on the behest of Defendant No. 2. The plaintiffs himself produced Exb.P-20 in evidence which is copy of statement given by the Defendant No. 2 in Suit No. 789 of 1996 which was filed by the Plaintiff No. 1. The statement shows that the Defendant No. 2 in the above suit himself given statement that he had no intention to dispossess the plaintiffs without due process of law. It was further stated that the Defendant No. 2 has already filed rent Case No. 1073/1996 for ejectment. The plaintiffs have failed to prove that notices were collusively issued or Defendant No. 2 wanted to dispossess the plaintiffs by means of above notices. Both the issues are answered in negative.

Issues Nos. 4 and 5

1. Both these issues can also be decided conveniently with the common findings, hence I take up both issues together. The plaintiffs have challenged the Exb.P-25 and P-26 issued by Defendant No. 1 on 1.8.1997 for demolition of structure of the building in question, which was declared dangerous. The main grievance of the plaintiffs is that the notice under Section 14 of the Sindh Building Control Ordinance, 1979 is liable to be cancelled for the reasons that it was issued without inspection, without providing any opportunity to the plaintiffs of being heard and without calling sufficient material and on the basis of this plea, the plaintiffs have also claimed permanent injunction against the Defendant No. 1 from demolition of Shop Nos.11, 12 and 13.

2. In order to resolve this controversy, it would be appropriate to reproduce Section 14 of the Sindh Building Control Ordinance, 1979:--

"14. Dangerous Buildings.--(1) If it comes to the notice of the Authority that a building is likely to collapse, the Authority may, after such enquiry as it deems fit order for carrying out the specific repairs or demolition of the whole or part of the building.

(2) Where the specific repairs are to be carried out, the Authority may, by notice, require the owner of building or in the event of his failure the occupier thereof to carry out such repairs within such period as may be specified in the notice and if the repairs are not carried out within the specified period, the Authority may, notwithstanding any other law for the time being in force proceed to have the building demolished and the cost of demolition shall be recovered from the owner as arrears of land revenue.

(3) Where the whole or a part of the building is to be demolished, the Authority may, by notice, require the occupier or occupiers thereof to vacate the building within the period specified in the notice and if the building has not been vacated within such period, the Authority may, notwithstanding any other law for the time being in force order that occupier or occupiers of the building be ejected, if necessary, by force:

Provided that no action shall be taken under this section unless the person who is likely to be affected thereby is given an opportunity of being heard."

1. The main thrust of the arguments of learned counsel for the plaintiffs was that though the Defendant No. 1 is competent to issue notice under Section 14 of the Sindh Building Control Ordinance, 1979 if any building is declared or found dangerous but at the same time it is mandatory that no action shall be taken under Section 14 unless the person who is likely to be affected is given opportunity of being heard. It was further contended that no opportunity was provided to the plaintiffs of being heard, which is against the principle of natural justice and unless proper procedure is adopted, no act of demolition can be taken place. In support of his arguments learned counsel for the plaintiff relied upon 2000 MLD 247 (M/s. Haji Khuda Bux Amir Umar v. KBCA & another). In the cited case, the learned Single Judge of this Court held that no person should be condemned unheard and no order adverse to the interest of any person should be passed without giving him an opportunity of explaining his position. Authority issued notice to plaintiff to remove building in dispute forthwith without giving an opportunity of being heard to the plaintiff who was likely to be affected by the action. Authority failed to issue notice to the plaintiff to show-cause as to why building should not be demolished before directing plaintiff to remove/demolish building. Such omission was a gross violation of law and principle of natural justice. Legislature being aware of the general attitude and tendency of executive authority to pass orders without giving a hearing to parties whose interests were adversely affected, normally include a provision in all statutes requiring executive authority to provide a hearing to all persons before passing any order against them.

2. Now I would like to revert back to the evidence led in support of these issues. First of all I would like to make it clear that the plaintiff in his affidavit in evidence clearly stated that no opportunity of being heard was afforded while issuing impugned notices and despite a categorical statement made in the affidavit in evidence, no cross-examination on this particular aspect was conducted by the counsel for the Defendant No. 1 hence this statement was gone un-rebutted. The witness of the Defendant No. 1 appeared in the evidence to represent the KBCA who was supposed to be conversant with the facts of the case. In the cross-examination the witness of the Defendant No. 1 clearly admitted that he has not produced any material to show that the shops in suits are dangerous and dilapidated. He further admitted that he has no record of the inspection of the suit shops since 1997. He further stated that he has no record to show that any previous notice was given to the plaintiff prior to the notice to vacate the premises. He further admitted that he has no record that the plaintiffs were afforded chance of personal hearing before notice to vacate the premises in accordance with principle of natural justice. After this evidence it is clear that nothing was brought on record to show that plaintiffs were given any right of hearing or opportunity of being heard but direct notice for demolition was issued which was in violation and contravention of Section 14 of the Ordinance. Counsel for the Defendant No. 1 failed to controvert this evidence and also failed to substantiate whether any opportunity of being heard was given to the plaintiffs in view of the proviso attached to the Section 14 of the Ordinance.

3. Under Section 22-A of the Sindh Building Control Ordinance, 1979, it is provided that the authority may frame regulation not in consistent with the provision of this Ordinance and the Rules made thereunder. Government of Sindh vide Notification No. SO(VI)8(27)/72 dated 30.10.1978 constituted a committee of experts from official and professional bodies to frame uniform building byelaws and the committee decided to frame unified building and town planning regulation for the whole Karachi Division. The regulations were given legal effect vide Section 29-A(3) of the Sindh Building Control Ordinance (Amendment), 1982. Under sub-section (3) of Section 21-A of the Ordinance, 1979 it is provided that the Karachi Building and Town Planning Regulations, 1979 in the case of the Authority of Karachi and the byelaws of the council concerned in other cases, duly published shall until the regulations are framed under this Section, be deemed to be the regulations, not framed; provided that they are not inconsistent with the provisions of this Ordinance and the rules framed thereunder. Even in the 1978/1979 Regulations, Chapter 10 was relevant to the dangerous building and under Regulation No. 157 it was provided that the Controller of Buildings will refer the matter to the Technical Committee for inspection and investigation regarding the dangerous/ruinous/ unsafe buildings. Similar, provision is available under Karachi Building and Town Planning Regulations, 2002 in which Chapter 7 deals with dangerous buildings and Regulation 7.2 relates to technical committee on dangerous building (T.C.D.B) which provides that the Controller of the building of the concerned circle of the authority shall examine or cause to examine every building or structure or portion in his circle reported as dangerous and shall refer the matter to the technical committee especially constituted by the authority for a term of office not more than three years. It is further provided in Regulation 7.2.2 that if for the opinion of Controller of Buildings of the concerned circle a building or portion thereto has become dangerous for human habitation he shall give at least 24 hours' notice to the owners/occupants for inspection of such building by the technical committee. Other details are also provided in the same chapter dealing the dangerous buildings.

4. It is an admitted fact that neither the Defendant No. 1 placed on record any inspection report nor any other material, nor provided any opportunity of being heard to the occupants/plaintiffs as envisaged under Section 14 of the Ordinance. The purpose of referring to the regulations is to show that in order to declare any building dangerous the report of technical committee is required. But at the same time the expressed provision made under Section 14 of the Ordinance cannot be overlooked under which it is incumbent upon authority to provide right of hearing to the affected persons, which cannot be by passed by the authority.

5. At this juncture, I would like to refer to the case reported in 1984 CLC 2476 (Furqan Ahmed v. Deputy Controller of Buildings), in which learned division bench of this Court held that notice for demolition of the building without hearing occupier is against the spirit of law itself and the Court declared the notice without lawful authority and of no legal effect. In the case of Mian S.M. Yousuf Baghpatee vs. Karachi Building Control Authority and others reported in 1993 CLC 2491, it was held that primary object of Section 14 is safety of the public. Such powers, however, could not be exercised arbitrarily and without due consideration to provisions of Section 14, Sindh Building Control Ordinance, 1979 and the right of individuals. As a remedy for "dangerous buildings" and prescribing various precautionary measures to be taken to prevent injury resulting therefrom, first of all degree of danger must be ascertained, and then appropriate measures. For ascertaining whether particular structure is dangerous, Authority must appoint a competent person for holding enquiry. Authority in such case must be satisfied that particular building is dangerous and would endanger human life. Without such satisfaction, Authority cannot exercise powers conferred by Section 14, Sindh Buildings Control Ordinance, 1979. In the case reported in 1992 CLC 518 (Vincent and others vs. Karachi Development Authority and others), it was held, that premises in occupation of petitioners was declared to be dangerous on the report of inspection committee. Such premises were inspected by inspection committee without notice to petitioners. In absence of express exclusion of the right of hearing, petitioners being in occupation of premises in question were entitled to have notice from inspection committee. Report of inspection committee on basis of which houses/premises in occupation of petitioners were declared to be dangerous having been prepared without notice to petitioners was declared to be without lawful authority and of no legal effect.

6. The learned counsel for the Defendant No. 1 also relied upon Section 20-A of the Sindh Building Control Ordinance, 1979 and argued that the suit is not maintainable for want of 60 days' notice which was required to be tendered before institution of the suit. The plaintiffs have challenged the notices on the ground that no opportunity of hearing was afforded to them. The ouster of jurisdiction of Civil Court under absolute or conditional bar would not be available where the order or action of the authority in cases where such authority acts in violation of the provisions of the statute which conferred the jurisdiction on it or the action or order is passed in violation of principles of natural justice or such order has been impugned on the ground of mala fides, such an order could be challenged in the Civil Court and in spite of a provision in the statute containing conditional bar, to examine whether the impugned order passed by them suffers from any such defect. Ref: 2002 MLD 1673 in which PLD 1997 SC 3 (Abbasi Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus) was followed. In the Falaknaz Builders case, it was held that though notice under Section 20-A of Sindh Building Control Ordinance, 1979 is mandatory in nature and the suit can be dismissed for want of notice but this is only a general rule with strong exceptions. Despite non-service of notice the suit would be maintainable if the impugned action are alleged to be mala fide, in excess of or extraneous to or in violation of law or statute, unlawful, illegal, unconstitutional, taken in colorable exercise of powers without jurisdiction and in violation of principles of natural justice. Bar contained in Section 20 would not apply where the impugned actions were taken not under the Ordinance but under some other rules and regulations. Ref: 2001 YLR 2542.

7. The letter of law makes it clear that before taking any action of demolition, ample opportunity is required to be afforded to the occupants. It is also a matter of record that demolition notice Exb.P-25 and P-26 issued for Shop Nos. 11 and Shop No. 12, in which it is mentioned that the structure standing on the plot is ruinous or dangerous to be repaired while in the description of structure the occupier/owner was called upon to demolish the entire building, which is itself confusing and not clear whether the shops were to be repaired or completely demolished. As a result of above discussion, I have no hesitation in my mind to hold that the impugned notices are illegal and no action detrimental to the interests of the plaintiffs can be taken on the basis of impugned notices. Both issues are answered in affirmative.

Issue No. 6

1. For the foregoing reasons, the suit is decreed to an extent that impugned notices were issued in violation and contravention of Section 14 of the Sindh Building Control Ordinance, 1979, hence no action for demolition can be initiated by the Defendant No. 1 (K.B.C.A) on the basis of impugned notices. On the other hand, it is clarified that the Defendant No. 1 may initiate appropriate action for the demolition of dangerous buildings and or structure strictly in accordance with law. It is further clarified that if any such action is envisioned or initiated in future, the principle of natural justice shall be followed in letter and spirit and ample opportunity of hearing shall be afforded to the plaintiffs in view of Section 14 of the Sindh Building Control Ordinance, 1979.

(R.A.) Order accordingly

PLJ 2014 Karachi 32

Present: Muhammad Ali Mazhar, J.

Mrs. SHABEENA FARHAT--Plaintiff

versus

M/s. HIGHWAY HOUSING PROJECT OF HASHOO GROUP, KARACHI & 2 others--Defendants

Suit No. 119 of 2006 & CMA No. 3077 of 2009, decided on 28.8.2013.

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

----O. XII, R. 6--Contents of written statement are to be read as a whole and not in piecemeal--Mere picking up isolated sentence from written statement does not justify decree on admission--Claimed decree for specific performance on basis of admission made in written statement--No clear, specific, unambiguous, definite and categorical admission was made written statement warranting decree of suit--Validity--Grant of decree under Order 12 Rule 6, CPC is a very serious matter which cannot be taken lightly and for passing any decree under Order 12 Rule 6, CPC, it is incumbent upon the Court to first prudently and cautiously examine the complexion of admission if any on the basis of which the plaintiff is claiming decree--It is also well settled that for the purpose of decreeing the suit on admission it is necessary that the admission must be clear, definite and categorical that the Court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission--Portion as admission ignoring the rest of the statement and the contention raised in the written statement filed by the defendants in which they refuted the claim of the plaintiff--Neither the written statement nor the subsequent statement filed by the defendant in Court can be treated unqualified, unconditional, clear, specific and or unambiguous or unequivocal admission. Consequently, application is dismissed. [Pp. 37, 38 & 39] A, B, C & D

Mr. Badar Alam, Advocate for Plaintiff.

Mr. Abdul Qadir Khan, Advocate for Defendants.

Date of hearing: 22.4.2013.

Order

The plaintiff has brought this application under Order XII, Rule 6, C.P.C. and prayed that the suit may be decreed to the extent of the specific performance of contract in terms of prayer clause (a) of the plaint.

1. The brief facts of the case are that the Defendant No. 1 had announced a housing scheme namely Highway Housing Project in the year 1978. The plaintiff got booked a commercial Plot No. CA/15 measuring 120 sq.yards and paid the entire sale consideration but the defendant failed to handover the possession of the plot. In Paragraph 4 of the written statement, the Defendant No. 1 stated that the execution of the lease and its registration was only possible after payment of lease money and stamps duty by the plaintiff. In Paragraph 5, it is further stated that plaintiff never approached the Defendant No. 1 for registration of lease and taking over possession of the plot.

2. The learned counsel for the plaintiff argued that the plaintiff deserves decree not on the basis of admission made in the written statement but also on the basis of a statement filed by the Defendant No. 1 on 27.1.2009 in which it was clearly stated that the Defendant No. 1 is still willing to settle the matter amicably by handing over the possession of the subject plot and executing the lease through Nazir of this Court subject to the payment of the outstanding lease charges within the period of 15 days. The learned counsel argued that in view of aforesaid offer, the plaintiff paid a sum of Rs. 2160/- on account of lease charges, hence, there is no impediment if decree is passed in view of the admission made in the written statement and the subsequent statement only to the extent of specific performance (i.e. for execution of lease and possession of the plot) and so far as the claim of damages is concerned, it will remain intact and the matter will proceed on merits. In support of his arguments, the learned counsel for the plaintiff relied upon the following case law:--

(1) 2007 SCMR 433 (G.R.Syed v. Muhammad Afzal). Court is empowered under Order XII, Rule 6, CPC to pass a judgment on the basis of admissions of facts made by the parties to their pleadings at any stage of proceedings. High Court concluded that admission of defendant was specific, clear, unambiguous, categorical and definite, therefore, Trial Court had rightly granted decree under Order XII Rule 6, CPC. Supreme Court declined to interfere with the judgment passed by High Court. Leave to appeal refused.

(2) 2001 CLC 1224 (Mrs.Haseena v. Mrs.Shafqat Malik). Under Order XII, Rule 6, CPC, the admission has to be clear, unambiguous, unqualified and unequivocal and the amount recoverable must be due and recoverable in the action in which the admission is made. Reference in this connection may be made to the case of Premsuk Das Assaram v. Udaram Gunga Bux ILR 45 Cal. 138, the view of Mooker Jee and Rankin, JJ. In the case of J.C. Galstaun v. E.D. Sasoon AIR 1924 Cal. 190, the case of Devi Narain v. Hassanand AIR 1927 Sindh 25, the opinion of Broadway, C.J. and Abdul Qadar, J., in the case of Abdul Rehman & Brothers v. Parbati Devi AIR 1933 Lah. 403 and the dictum of A.S. Farooqui, J. in the case of Kassamali Bhoy v. Shaikh Abdul Sattar PLD 1966 Kar. 75.

1. The learned counsel for the Defendant No. 1 argued that there is no admission on the part of Defendant No. 1. The contents of the written statement are to be read as a whole and not in piecemeal. Mere picking up isolated sentences from the written statement does not justify the decree on admission. The Defendant No. 1 in the Paragraph 4 of its written statement has specifically pleaded gross misconduct and breach on the part of the plaintiff and undue delay in performing her part of the contract. He further argued that the factual background of filing the statement dated 27.01.2009 arose when on 15.12.2008, the learned counsel for the plaintiff submitted before the Court that Defendant No. 1 did not inform the amount of stamp duty and registration charges, therefore, plaintiff was not in a position to deposit the same and he further submitted that the matter may be settled amicably and the case was adjourned. On 28.01.2009, the plaintiff and the authorized person on behalf of the Defendant No. 1 appeared in the Court, and counsel for the Defendant No. 1 agreed to file a statement in writing for the outstanding amount of lease charges, registration fee and stamp duty. The statement was filed without prejudice to the rights, interest and pleas taken by the Defendant No. 1 in the subject suit and a conditional offer was made to the execution of the lease of the plot upon payment of outstanding lease charges subject to disposal/withdrawal of the suit by the Plaintiff. On 28.01.2009, the learned counsel for the plaintiff sought time to seek instructions and ultimately on 03.02.2009, he specifically submitted that the plaintiff is not ready to withdraw the suit to which the counsel for the Defendant No. 1 submitted that as regard to the offer to execution of lease deed the same is also withdrawn and he conveyed his no objection if the plaintiff withdraws the amount of R.2,160/- which was deposited on account of lease charges. In view of above submission the Court passed an order that the matter to proceed on merits and to be fixed for settlement of issues. He further argued that no clear, unambiguous, unqualified and or unequivocal admission was made, warranting the decree of suit under Order XII, Rule 6, CPC which is presently lacking in the matter as no such admission has been made by the Defendant No. 1. It was further contended that the suit for specific performance is time barred and the matter is already, sub judice in the hon'ble Supreme Court of Pakistan in Civil Appeal No. 301/2006 (M/s. Highway Housing Project V/s. Mrs. Shabeena Farhat), hence passing of any order would prejudice the pending appeal in the apex Court. In support of his arguments, the learned counsel for the Defendant No. 1 has relied upon the following case law:--

(1) 2013 CLC 535 (Syed Waqar Haider Zaidi v. Mst.Alam Ara Begum). To pass judgment on admission is within the discretion of the Court which should be exercised in judicial manner and is not a matter of right. It is also well-settled that for the purposes of decreeing the suit on admission it is necessary that the admission must be clear, specific, unambiguous, definite and categorical and Court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission.

(2) PLD 1966 (W.P.) Karachi 75 (Kassamali Alibhoy v. Shaikh Abdul Sattar). An admission in order to be made the basis of a decree under Order XII, Rule 6 of the Civil Procedure Code, 1908 must be unqualified and unconditional. When factual admission is accompanied by a qualification that the suit itself is not maintainable or that the claim suffers from a legal difficulty, it cannot be said that the admission is unqualified. Where such a legal defence is raised its consideration must wait until the suit itself comes to be tried. The Court cannot in such a case proceed under Order XII, Rule 6 of the Civil Procedure Code, 1908 and pass a final judgment upon such admission.

(3) 1971 DLC 703 (Wazedunnessa Khatun v. Daliladdin alias Dalu & others). An admission must be unqualified and unconditional, therefore, when factual admission is accompanied with a qualification that the suit itself is not maintainable or that the claim suffers from a legal difficulty, it cannot be said that the admission is unqualified. If the plaintiff wants to have a judgment on the admission of the defendant, the said admission must be positive, clear and unequivocal and that admission cannot be split up.

(4) PLD 2003 Karachi 253 (M/s. Gerry's International (Pvt.) Ltd. v. M/s. Qatar Airways). Order XII, Rule 6 & Order VIII, Rules 3, 4 & 5. Judgment on admission. Suit for settlement of accounts by Airline Company against its Sales Agent. Plaintiff alleged in the plaint that statement of accounts issued by defendant showing amount of sale proceeds of airline tickets was annexed therewith. High Court considering reply in written statement as evasive partly decreed the suit to the extent of amount shown in such statement. Validity. Defendant in written statement had denied plaintiff's claim. Non-commenting upon such statement of account in written statement would not constitute admission of defendant nor any inference of the nature could be drawn to believe something for which law required proof through leading evidence by parties nor same could be treated as admission of liability by defendant.

(5) AIR 1986 Supreme Court 1509 (Dudh Nath v. Suresh Chandra). Even on merits, if the High Court had to rely upon the alleged admission in the written statement, the admission must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other. The High Court, in our opinion, has erred in making a fresh appraisal of the evidence to come to a different conclusion. Even otherwise, the plaintiff has to stand on his own strength.

1. Heard the arguments. In the application filed by the plaintiff under Order XII, Rule 6 read with Section 151, CPC, the plaintiff has claimed the decree for specific performance on the basis of admission made in Paragraphs 4 & 5 of written statement filed by the Defendant No. 1. The examination of Paragraphs 4 and 5 revealed that no clear, specific, unambiguous, definite and categorical admission has been made by the Defendant No. 1 in its written statement warranting the decree of suit under Order XII, Rule 6, CPC. In fact in Paragraph 4, it is alleged that the plaintiff deliberately kept away from approaching the Defendant No. 1. It was further stated that the execution of lease and its registration was only possible after making payment of lease money and the stamp duty and the personal appearance of plaintiff before the Registrar concerned. It was further stated that after lapse of 22 years, the plaintiff is trying to shift the burden on the defendants. The plaintiff has not prayed in the application that the suit be decreed only against the Defendant No. 1 but in the prayer clause the relief of specific performance and the damages have been claimed against the Defendant Nos. 1 and 2. The Defendant No. 2 has also filed his written statement in which he has claimed the set off through his counter claim of damages. The Defendant No. 2 has also not admitted anything which may warrant decree under Order XII, Rule 6, CPC. The Defendant No. 3 in its written statement has also lodged its counter claim against the plaintiff and claimed that it has no concern with the Defendant No. 1. Chronology of the orders passed in the suit do show that the matter was fixed in the Court on 12.1.2009 on which date it was agreed that the plaintiff as well as authorized person of the defendant will appear in Court to negotiate compromise. Counsel for the Defendant No. 1 agreed to file a statement in writing with the details regarding the dues of lease, registration charges and stamp duty required to be paid by the plaintiff in case of compromise. The matter was adjourned for 28.1.2009, the order of that date show that on the basis of statement filed by the Defendant No. 1 the counsel for the plaintiff sought time to seek instructions from his client whether she is going to withdraw the suit or not and for that specific purpose, the matter was adjourned to 3.2.2009. The order dated 3.2.2009 shows that learned counsel for the plaintiff Mr.Badar Alam informed the Court that the plaintiff is not ready to withdraw the suit and he wants to make an application under Order XII, Rule 6, CPC. The counsel for the defendants also given his clear statement that the offer given for the execution of lease deed is also withdrawn and he will have no objection if the plaintiff withdraws the amount which was deposited on account of lease charges. Keeping in view the aforesaid situation the learned single judge observed that now the matter is to proceed on merits and he further ordered that the suit be fixed for settlement of issues. The statement filed in pursuance of the order passed by this Court only shows that offer was given to settle down the controversy so that the entire suit may be disposed of and nothing was said in a way that on the basis of this statement the suit may be decreed to an extent of specific performance but the other claims of the plaintiff including the damages will proceed further. The fate of this statement is clear from the order dated 3.2.2009 which amply demonstrates that the counsel for the plaintiff conveyed the intention of the plaintiff not to withdraw the suit and simultaneously, the offer given by the Defendant No. 1 for an amicable solution was also withdrawn and the Court clearly observed that the matter will proceed on merits and the matter was posted for settlement of issues. The record further shows that when the suit was filed, the office raised the objection that the suit is bared by Article 113 of the Limitation Act and vide Order dated 22.9.2004, learned single judge of this Court rejected the plaint. The order was assailed in H.C.A. No. 241/2004 and vide order dated 14.12.2005 the learned divisional bench had set aside the impugned order. Perhaps this order has been challenged by the Defendant No. 1 in the hon'ble Supreme Court by way of Civil Appeal No. 301/2006 but in this regard, nothing was placed on record.

2. The grant of decree under Order XII, Rule 6, CPC is a very serious matter which cannot be taken lightly and for passing any decree under Order XII, Rule 6, CPC, it is incumbent upon the Court to first prudently and cautiously examine the complexion of admission if any on the basis of which the plaintiff is claiming decree. So far as the written statement is concerned, I feel no hesitation in my mind to grasp that nothing is said in the written statement unconditionally or unequivocally, which may be termed or treated a clear and or unambiguous admission for which without going into any further controversy this Court may pass decree out rightly. So far as the subsequent statement is concerned it is also not unconditional but it only paved a way to settle down long pending controversy by way of an amicable solution which means to say that an offer was given and in lieu thereof, the plaintiff was supposed to withdraw the suit. It was not filed with the intention or with the clear admission that let the suit be decreed for the purpose of execution of lease and possession but after partial decree the rest of the claim of the plaintiff will continue and be decided on merits later on.

3. Learned counsel for the plaintiff referred to the case of G.R. Syed (supra). There is no cavil to the well settled proposition expounded by the hon'ble Supreme Court that under Order XII Rule 6 C.P.C, Court is empowered to pass judgment on admission at any stage of proceedings where admission is specific, clear, unambiguous and definite. In the case of Mrs. Haseena (supra), while referring to various dictums, the Court held in fact the same proposition of law that the admission must be clear, qualified and unequivocal.

4. On the other hand, the counsel for the Defendant No. 1 referred to my own judgment rendered in the case of Syed Waqar Haider Zaidi (supra) in which I held that to pass judgment on admission is within the discretion of the Court which should be exercised in the judicial manner and not as a matter of right. If the question involved cannot be conveniently disposed of, the Court may exercise discretion in rejecting the application. It is also well settled that for the purpose of decreeing the suit on admission it is necessary that the admission must be clear, definite and categorical that the Court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission. In the case of Kassamali Alibhoy, the Court held that factual admission is accompanied by a qualification that the suit itself is not maintainable or that the claim suffers from a legal difficulty, it cannot be said that the admission is unqualified and where such a legal defence is raised its consideration must wait until the suit itself comes to be tried. In the case of Wazedunnessa Khatun (supra) the similar findings were rendered by the learned Dacca High Court. In the case of M/s. Gerry's International this Court held that the defendant in written statement denied the plaintiff's claim for which law required proof through leading evidence by parties. The Supreme Court of India in the case of Dudh Nath reported in AIR 1986 Supreme Court 1509 held that admission must be taken as a whole it is not permissible to rely on a part of admission ignoring other. In the case in hand also there is a same situation in which the plaintiff asserted on the basis of statement of the Defendant No. 1 that they agreed to execute the lease but on the other hand the plaintiff ignored the remaining part of statement which shows that it is merely an offer for the resolution of entire controversy by way of amicable solution so the Court cannot accept that portion as admission ignoring the rest of the statement and the contention raised in the written statement filed by the defendants in which they refuted the claim of the plaintiff.

5. As a result of above discussion, I am of the firm view that neither the written statement nor the subsequent statement filed by the Defendant No. 1 in Court can be treated unqualified, unconditional, clear, specific and or unambiguous or unequivocal admission. Consequently, this application is dismissed. Let the suit be fixed in Court for settlement of issues on the next date.

(R.A.) Application dismissed

PLJ 2014 Karachi 39 (DB)

Present: Faisal Arab & Nisar Ahmad Shaikh, J.

ZARAI TARAQIATI BANK LTD. through President and 2 others--Petitioners

versus

NAZIM HUSSAIN and 2 others--Respondents

C.P. No. D-2919 and C.M.A. No. 11670 of 2010, decided on 13.3.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Scheme of Voluntary Golden Handshake--Once amount under G.H.S. was received then not entitled to reinstatement back in service--No judicial order of abatement--Validity--Unless there is a judicial order of abatement passed in every case by FST an employee would not know of abatement of his appeal--Once respondent as appellant before service tribunal has resorted to legal remedy available under law then it cannot be said that without judicial order of abatement passed by FST, proceedings before labour Court are to be treated as nullity--After acceptance of amount under golden as nullity--After acceptance of amount under golden handshake scheme he cannot seek his re-induction back in service by filing legal proceedings--Thus on his own free will respondent accepted the amount under G.H.S., he cannot approbate and reprobate--Petition was accepted. [Pp. 41 & 42] A, B, C & D

KLR 2009 Labour Service cases 26, KLR 2009 Labour & Service 30, 2009 SLJ 615 & 2009 TD (Labour) 163, rel.

Mr. Sanaullah Noor Ghouri, Advocate for Petitioner.

Mr. M.A. Hakeem Khan, Advocate for Respondent No. 1.

Mr. Malik Naeem Iqbal, Advocate for Respondents.

Date of hearing: 13.3.2013.

Order

Respondent was an employee of the petitioner. In September 2002 a scheme of Voluntary Golden Handshake Scheme was launched by the petitioner and the employees were free to opt for such Scheme. The offer was made by the petitioner on 5th September 2002 which was accepted by the respondent and it is the case of the respondent that it was revoked by him on 7th November 2002. As per the case of the petitioner the offer was finalized on 27.11.2002 and thereafter on 04.12.2002 the respondent was relieved from the duty. After having been relieved from, the duty on 04.12.2002 the payment under the Golden Handshake Scheme was not made but was made finally in two installments, first was made on 30th July 2003 and the other payment was made on 5th May 2004, however after receiving the First installment on 20th July 2003 the petitioner filed appeal before the Federal Services Tribunal. On 10.10.2003 on account of Mubin-us-Salam's case, which is a decision of the Honourable Supreme Court, the appeal before Federal Services Tribunal stood abated vide order dated 05.04.2006. Thereafter the Registrar of the Federal Services Tribunal communicated to the respondent that the appeal has abated, with the result that the respondent promptly filed a Grievance Application under Industrial Relations Ordinance, 2002 before the Labour Court and the Labour Court partly allowed the application vide decision dated 13.06.2007. The Labour Appellate Tribunal dismissed the appeal of the petitioner on 24th August 2010, hence this petition filed by the petitioner.

Counsel for the petitioner at the very outset took a legal objection that the proceedings before the Labour Court were coram-non-judice and without jurisdiction as for giving effect to the order of abatement in view of Mubin-us-Saldm's case the Federal Services Tribunal ought to have passed a judicial order and the order of the Registrar was not sufficient. In support of this contention he has relied upon judgment of the Honourable Supreme Court delivered in Raja Riaz vs. Chairman, Pakistan Space & Upper Atmosphere Research Commission, reported in SBLR 2008 SC 40. He next argued that once amount was received by the respondent under the Golden Handshake Scheme then he was not entitled to seek his reinstatement back in service. He also relied upon KLR 2009 Labour & Service Cases 26, KLR 2009 Labour & Service Cases 28, KLR 2009 Labour & Service Cases 30, 2009 SLJ 615 and 2009 TD (Labour) 163.

In response to the arguments of the petitioner counsel, counsel for the Respondent No. 1 argued that offer under the Golden Handshake Scheme was revoked on 07.11.2002 and thereafter the petitioner continued on duty and on 04.12.2002 relieved from service. He then filed appeal before the Federal Services Tribunal and upon its abatement, the respondent sought remedy before the Labour Court. He next contended that while respondent was out of service he met with an accident and did not have money for his treatment and therefore he was compelled to receive the amount in July 2003 and May 2004 which was determined by the petitioner under Golden Handshake Scheme. He also contended that under the Scheme also as long as the amount is not paid an employee was not to be relieved from service but this was not done in this case. He also contended that there are concurrent findings of both Courts below whereby the respondent was reinstated back in service and therefore the petition is not maintainable. In support of his case he relied upon cases reported in SBLR 2008 SC 40, 2010 SCMR 1417, 2011 SCMR 1344, 1992 SCMR 2169, 2010 SCMR 1375, PLD 2007 Supreme Court 52, 2005 PLC (C.S) 1155, 2005 SCMR 97, 2008 SCMR 402, 2002 SCMR 142, 2000 SCMR 1964. He contended that under Section 5 of the Contract Act an offer which was made to the respondent was revoked prior to its acceptance which has no legal value in law. In support of such contention he relied upon the case reported in 2005 PLC (C.S) 890. He also relied upon certain cases of the Honourable Supreme Court wherein it was held that receipt of the salary does not disentitled an employee to seek relief of his grievance.

Insofar as the first objection of the petitioner is concerned that there is no judicial order of abatement, we are of the view that the judgment of Raja Riaz's case relied upon by the counsel for the petitioner is distinguishable as in Raja Riaz's case it was held that there was no communication of abatement of the proceedings to the civil servant whose appeal was pending before the Federal Services Tribunal and who was not a party in Mubin-us-Salam's case. Treating his appeal to have abated without judicial order passed by Federal Services Tribunal in his case was considered by the Honourable Supreme Court to be of no legal effect and in that context it was held that unless there is a judicial order of abatement passed in every case by the Federal Services Tribunal an employee would not know of abatement of his appeal.

The judgment of the Honourable Supreme Court in Raja Riaz's case was delivered so as to give an opportunity to those whose appeals were to stand abated in order to facilitate them to seek relief before the appropriate forum. In the present case once the respondent as appellant before the Services Tribunal has himself resorted to legal remedy available under the law within the prescribed time then it can not be said that without a judicial order of abatement passed by the Federal Services Tribunal, the proceedings filed by the respondent before the Labour Court are to be treated as nullity. However, we have noted that respondent was relieved from service on 04.12.2002 and thereafter he initiated no legal proceedings against the petitioner. Then on 30th July 2003 he partly received payment under the Golden Handshake Scheme. After receiving the amount in July 2003 he did not file any legal proceedings until 10.11.2003 when he filed appeal before the Federal Services Tribunal. On 05.05.2004 he received the remaining amount under the Golden Handshake Scheme during pendency of his appeal before the Services Tribunal. After acceptance, of the amount under the Golden Handshake Scheme he can not seek his re-induction back in service by filing legal proceedings.

Thus on his own freewill the respondent accepted the amount under the Golden Handshake Scheme, he can not approbate and reprobate. After ten months of leaving his service the respondent filed appeal before the Federal Services Tribunal. We therefore set aside the impugned judgment and allow this petition and hold that respondent was not entitled to be reinstated back in service.

(R.A.) Petition allowed

PLJ 2014 Karachi 42 (DB)

Present: Faisal Arab and Salahuddin Panhwar, JJ.

RASHID LATIF--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Inter Provincial Coordination, Islamabad and 2 others--Respondents

C.P. Nos. D-2865, 2020 of 2013 and 4026 of 2012, decided on 27.11.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment of Chairman Pakistan Cricket Board--Challenge to--Legal objection with regard to jurisdiction of High Court--Territorial jurisdiction lies to Islamabad High Court--Aggrieved party shall be well within rights to seek help and constitutional protection towards its rights--Validity--If a particular order or action of an authority is not having its impact upon people at large but is confined to a particular individual, then jurisdiction to challenge such order or action shall remain with High Court--There is no cavil in proposition that in instant proceedings, petitioner had challenged notification issued by Federation moreover there can be no denial to status that there as many regions of PCB which run their affairs under PCB hence PCB is not a body having its function at Lahore only but does function all over state--Respondent was not an acting chairman but was a caretaker who had been appointed by Court for a specific purpose and specific period--Once legality of respondent was adjudicated by competent Court propriety demands that High Court must not examine legality and validity that a decision of High Court, if in conflict with order will cause confusion and complicity of the case and if comes in affirmation it will result in prejudicing intra Court appeal--If pending determination before appellate forum, Court of same status should refrain from deciding such issue as demand of propriety, fairness, good conscious and equity, therefore, High Court refrain to discuss notification, however petitioner was at liberty to joined proceeding of I.C.A.--Petition was disposed of. [Pp. 53 & 54] A, B & C

M/s. Umair A. Kazi and Mr. Abdul Sattar Pirzada, Advocates for Petitioner.

Mr. Asif Hussain Mangi, Standing Counsel for Respondent No. 1.

Mr. Taffazul H. Rizvi, Advocate for Respondents Nos. 2 & 3.

Date of hearing: 24.9.2013.

Judgment

Salahuddin Panhwar, J.--Through this common judgment we intend to dispose of above captioned petitions, whereby petitioner has challenged the appointment of Chairman Pakistan Cricket Board and vires of its constitution.

1. Precisely, relevant facts as set out in the all three petitions are that C.P. No. D-2865/2012: Petitioner is a former captain and player of Pakistan National Cricket team and also runs a cricket academy free of cost under the name and style of Rashid Latif Cricket Academy. The Respondent No. 1, being federal body, is responsible for regulating development and control of sports in Pakistan. The Respondent No. 2 is the concerned board and is responsible for regulating all affairs related to cricket with the approval of the Respondent No. 1 and Respondent No. 2 is a member of International Cricket Council (I.C.C.). The petitioner had filed Constitutional Petition No. D-2020/2013; whereby he challenged the procedure of appointment of the Chairman of the Respondent No. 2 under the new Constitution (Constitution, 2013). The said petition is currently subjudice before this Court. The petitioner had filed another Similar Petition No. WF-2242 of 2013 in the High Court of Islamabad whereby appointment of previous Chairman (Mr. Zaka Ashraf) was suspended by order dated 25.05.2013 and it was also observed that "In the peculiar circumstances, Respondent No. 3 is directed to appoint some acting Chairman of P.C.B. fully qualified to be appointed as Chairman till final disposal of this writ petition." It is further maintained that the appointment of acting Chairman is not provided under the Constitution 2013, thus appointment of Respondent No. 3 is completely against the terms of Article 6(2) for the appointment of an acting Chairman; Article 6(2) of Constitution 2013, which provides comprehensive procedure regarding appointment of the Chairman and further prayed that:--

(a) Declare that the Respondents No. 1 & 2 have acted in violation of law and failed to follow procedure laid down in the law.

(b) Declare and hold that appointment of Respondent No. 3 by Respondent No. 1 is unconstitutional.

C.P. No. D-2020/2013.--This petition challenges the appointment of Respondent No. 3 (Zaka Ashraf) and seeks declaration of Part 4 of the Constitution 2013, as illegal and unconstitutional.

C.P. No. D-4026/2012.--This petition questions legality of Constitution of Pakistan Cricket Board, 2007, on the ground that same is against the spirit of constitution of Pakistan 1973.

1. Learned counsel for the petitioner while reiterating the contention of instant petition, inter alia, has contended that appointment of Respondent No. 3 is against the procedure provided in Article 6(2) of the Constitution of 2013 (PCB); therefore Respondent No. 3 cannot hold such post and thereby all acts/actions of said respondent are contrary to the law and elaborate procedure is provided for the appointment of Chairman but Respondent No. 1 has completely by-passed such mode. He further asserted that composition of Board of Governors (BoG), is defined in Section 9 which reflects that it has 15 regions all over the country, thus this Court has jurisdiction to entertain this petition and nullify the Notification issued by Respondent No. 1 in favour of Respondent No. 3, in support of his contention, he has relied upon case of A.R. Khan & Sons (Pvt.) Ltd. through Authorized Officer versus Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad (2010 CLD 1648); Trading Corporation of Pakistan (Pvt.) Ltd vs. Pakistan Agro Forestry Corporation (Pvt.) Ltd (2000 SCMR 1703); Al-Iblagh Ltd., Lahore vs. Copyright Board, Karachi (1985 SCMR 758); Messrs FACTO Belarus Tractors Limited Karachi vs. Federation of Pakistan through Secretary, Ministry of Industries, Production and Special Initiatives Islamabad (PLD 2006 K 479); Ardeshir Cowasjee vs. Karachi Building Control Authority (KMC), Karachi (1999 SCMR 2883); Muhammad Naseem Hijazi Versus Province of Punjab (2000 SCMR 1720); Dr. Azim-ur-Rehman Khan Meo versus Government of Sindh and another (2004 SCMR 1299).

2. On the contrary, learned counsel for respondents stoutly refutes the claim of petitioner and has raised legal objection with regard to the jurisdiction of this Court. Per counsel Islamabad High Court in similar type of petition has passed a verdict therefore in pursuance of that judgment Respondent No. 3 is working as caretaker Chairman of Cricket Board; Impugned Notification was issued by Prime Minister, who sits at Islamabad, therefore territorial jurisdiction lies to the Islamabad High Court and this Hon'ble Court can direct functionaries within its territorial jurisdiction only, hence issue involved in this petition is out of the jurisdiction of this Court. In support of his contention he has relied upon AIR 1961 Supreme Court 532 (Lt. Col. Khajoor Singh vs. Union of India and another), 2005 SCMR 1746 (Shahida Maqsood vs. President of Pakistan and others), 2008 SCMR 240 (Izhar Alam Farooqi vs. Sheikh Abdul Sattar Lasi and others), PLJ 2012 Karachi page 1 (Danish Keneria vs. Pakistan and another), 2012 PTD page 1869 (Messrs Sethi and Sons vs. Federation of Pakistan and others), 2010 PLC (CS) 137 (Gul Muhammad Hajano vs. Province of Sindh and others), 1979 SCMR 555 (Sabir Din vs. Govt. of Pakistan and others) and PLD 1963 SC 296 (The Province of East Pakistan vs. Dr. Aziz-ul-Islam)

3. Before addressing the merits of the case, it would be significant to examine the jurisdiction of this Court, thus it would be conducive to reproduce Article 199(1)(a)(i) & (ii), of the Constitution of Pakistan, which read as follows--

(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do, or

(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing function's in connection with the affairs of the Federal, a Province or a local authority has been done or taken without lawful authority and is of no legal effect;

Bare perusal of the above clause (s), illustrates that the High Court (s) have been vested with powers, jurisdiction and authority to examine any order/action complained to be unlawful because the High Court is the ultimate guardian of the rights of the people residing within its territorial jurisdiction. Thus function (s) or act (s) / proceeding (s) of the Person on behalf of Federation are not exempted from judicial scrutiny and examination of the High Court (s). The purpose and object behind this seems to be nothing but that rights, interest and fundamental rights of the people residing in territorial jurisdiction (s) of all High Court (s), likely to be effected by such function (s) or act (s) of the Federation, are not left unattended by the Legislature (s).

1. Further, the plain reading of the clause (i) shows that what the legislature has insisted upon for invoking Constitutional Jurisdiction of the High Court is the phrase "within the territorial jurisdiction of the Court, functions in connection with the affairs of the federation ........" (Underlining is provided for emphasis).

This phrase is required to be given its due weight and meaning in its true spirit as intended by legislature. The clause (i) has been confined to the word "function" which, per Black's Law Dictionary means:--

1. Activity that is appropriate to a particular business or profession;

2. Office; duty; the occupation of an office

and if the said meaning is taken in continuity of the phrase "within the territorial jurisdiction of the Court" it can well be concluded that it is the impact of function (activity, office, duty or the occupation of an office) which should have been within territorial jurisdiction, which would be sufficient for one to invoke the Constitutional Jurisdiction if the same results in effecting the person residing within jurisdiction of such High Court. We may further add here that it is always the impact(s) and effect (s) of an act or order which makes one to invoke the constitutional jurisdiction or to approach Court of law for legal rescue and not the act or order itself alone. The citizens residing at place "A" cannot be allowed to suffer from the effect (s) of an act or order solely for the reason that it was done/passed at place "B" rather the High Court of place "B", being ultimate guardian of the rights, interests and claims of the public masses, shall have to come forward for rescue else it would frustrate the purpose of justice because the principle of judicial system is that justice at no cost and at no stage be allowed to fall prey to the procedural technicalities. Thus technicalities must be ignored if they tend to create hurdle in the way of justice.

1. At this juncture, we would like to refer the case of L.P.G. Association of Pakistan through Chairman vs. Federation of Pakistan and others re-ported in 2009 C.L.D, 1498 Lahore, wherein the question was same that of territorial jurisdiction of the High Court. Said controversy was resolved while examining, the case of Sandalbar Enterprises reported in PLD 1997 SC 334, case of Messrs Al-Iblagh Limited Lahore reported in 1985 SCMR 758, case of Dr. Zahoor Ahmed Shah reported in 2005 MLD 718, case of Dr. Qaiser Rasheed reported in PLD 2006 L 789, case of Messrs Ibrahim Fibers reported in PLD 2009 K 154, case of Abdul Ghafar Lakhani reported in PLD 1986 K 525, case of Amin Textile Mills reported in 1998 SCMR 2389, case of Flying Craft Paper Mills reported in 1997 SCMR 1874, case of Shah Abdul Sattar Lasi reported in 2006 CLD 18, and other cases reported as PLD 1988 SC 387 (Superintendent of Police Headquarter Lahore & others vs. Muhammad Latif), 1995 CLC 1027 (Ghulam Haider Badini & others vs. Govt. of Pakistan through Ministry of Information and Broadcasting and another), PLD 1997 SC 334 (Sandalbar Enterprises (Pvt.) Ltd. vs. CBR), 1998 PLC (CS) 239 (Muhammad Idrees v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 5 others), PLD 2001 Peshawar 7 (Messrs Lucky Cement Ltd. v. The Central Board of Revenue and others), PLD 1976 Pesh. 66 (Muhammad Aslam Khan and 9 others v. Federal Land Commission through its Chairman, Central Secretariat Islamabad and 3 others) and 2000 SCMR 1703 (Trading Corporation of Pakistan (Private) Ltd. v. Pakistan Agro Forestry Corporation (Private) Ltd. and another), and the answer was in Para 6, which is reproduced as follows:--

"From the judgments cited at the Bar on both the sides, the portions whereof have been extensively reproduced, the following ratio is deducible:--

(A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in any of the Provinces, shall still be deemed to function all over the country.

(B) If such Government, body or authority passes any order or initiates an action at Islamabad, but it affects the "aggrieved party" at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him.

(C) This shall be moreso in the cases where a party is aggrieved or a legislative instrument (including any rules, etc.) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property; profession, association etc. and any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected.

In this context, illustrations can be given, that if some duty/tax has been imposed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is maintaining the account at Lahore, though the Act/law has been passed at Islamabad, yet his right being affected where he maintains the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad; this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two High Courts.

(D) On account of the above, both the Islamabad and Lahore High Courts shall have the concurrent jurisdiction in certain matters and it shall not be legally sound or valid to hold that as the Federal Government etc. resides in Islamabad, and operates from there; the assailed order/action has also emanated from Islamabad, therefore, it is only the Capital High Court which shall possess the jurisdiction. The dominant purpose in such a situation shall be irrelevant, rather on account of the rule of choice, the plaintiff/petitioner shall have the right to choose the forum of his convenience.

1. In another case of Barrister Sardar Muhammad vs. Federation of Pakistan and others reported in P.L.D. 2013, Lahore, page 343, the appointment of Chairman of P.T.A. was challenged and same jurisdictional point was raised but while maintaining the petition such appointment was declared illegal, the ratio of the said dictum is that:

"Para Nos. 22 to 23.

1. Even if the Act provided that the head office of Chairman P.T.A. is in Islamabad it would still make no difference because the test is the territorial jurisdiction of the public office. The geographical jurisdiction of the "public office" is determined under the law that establishes the said public office. It is the same law that helps determine whether the public office falls with the territorial jurisdiction of a particular High Court. No person can be deprived of the constitutional remedy of quo warranto, under Article 199 of the Constitution, against a statutory or public sector institution that operates nationwide, on mere cosmetics and technicalities like the location of the place of work, head office or the residence of the incumbent to the public office.

2. In the present case Members and Chairman P.T.A. enjoy nation-wide jurisdiction hence a nation-wide presence. These public offices, therefore, fall within the territorial jurisdiction of every High Court in the country. It would be different if the public office belonged to a provincial public or statutory authority with its jurisdiction limited to a province. In such a case, the public offices of the said authority, will fall within the territorial jurisdiction of the High Court of the relevant province. The foundational concept of territorial jurisdiction for the purposes of Article 199 has already been deliberated in detail in Messrs Sethi & Sethi Sons through Humayun Khan V. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others (2012 PTD 1869) and L.P.G. Association of Pakistan through Chairman v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009 C.L.D. 1498). The reasoning and logic of the above judgments has been simply extended to the writ of quo warranto."

From the above it is evident that mere existence of an office of Federation outside the jurisdiction of the High Court shall not alone be sufficient to take the matter away from the extra-ordinary jurisdiction of High Court(s) to examine the issue(s) relating to vires of law, statutes, rules and action(s) if the same are going to cause an effect upon the rights of the people, residing within such area because the principle is that an office, law, rule and legislation is always done/established to provide security and safety to the rights, interests and claims of the people for whom such office, law rules and legislation is meant, so at all material times, the law requires such actions, law, rules and legislation to be strictly in accordance with law keeping the rights, interests and claims of the masses at their proper place.

1. Let's examine the case law relied upon by respondents advocate. In the case of Lt. Col. Khajoor Singh (supra), one army officer who was working in Jammu and Kashmir which force was amalgamated with the defence force of the union of India and his retirement date was 20th November, 1961 but in July, 13, 1954 Government of India issued letter whereby he was retired from August, 12,1954 thus he challenged the same before High Court of Jammu and Kashmir who issued certificate in favour of petitioner same was assailed in Supreme Court-whereby with majority judgment it was held that since Notification was issued from Delhi therefore High Court of Jammu and Kashmir was not having jurisdiction.

In the case of Danish Kaneria (supra) relevant facts were that petitioner was selected on merit by the Respondent No. 2 as special leg spinner and he was selected to play for Essex County in the United Kingdom and other various places but he was stopped to play series against South Africa, West Indies and New Zealand and further in national team. Hence being aggrieved, he filed petition before this Court but such petition was dismissed, relevant paras inter-alia, are as under:

1. A perusal of the memo. of petition indicates that the thrust of the attack of the petitioner was directed against the letters of Respondent No. 2 calling up the petitioner to appear before the Integrity Committee which is housed at Central Office of P.C.B, Lahore, all the correspondences were issued to the petitioner from the Central Office of the Respondent No. 2 which is housed at Lahore. In our view this fact would not be sufficient to oust the jurisdiction of Lahore High Court within whose jurisdiction the main cause of action accrued. Article 199(1)(a)(i)(ii) of the Constitution of Islamic Republic of Pakistan, 1973 (herein after referred to as the Constitution) and that perusal of above clause (a)(i) of the above articles indicates that a High Court has power to issue direction to a person performing within its territorial jurisdiction, functions in connection with the affairs of the Federation, a province or local authority to refrain from doing anything which he is not permitted by law to do or to do anything he is required by law to do. Similarly, under sub-clause (a)(ii) the High Court has powers to declare any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing function in connection with the affairs of the Federation, a Province or a local authority.

2. We have observed that the Central Office of the Respondent No. 2 is located at Lahore and the petitioner has to attend the Central Office of the Respondent at Lahore for appearing before the Integrity Committee and not before the sub-office, which is located at Karachi. We have also observed that all the correspondences have taken place at Lahore. The arguments of the learned counsel for the petitioner that the petitioner is residing at Karachi and he has received all the correspondences at Karachi, hence part of cause of action may be seemed to be taken place at Karachi is without any substance.

In case of M/s. Sethi & Sethi sons (supra) petitioner was businessman having office at Lahore. An F.I.R. was lodged against him that he has committed tax fraud by issuing fake sales tax invoices. Simultaneously show-cause notice was issued to him by Director General Intelligence and Investigation Karachi thus he challenged the same before Lahore High Court but such petition was dismissed on the ground of jurisdiction as discussed in Para No. 21, same is as under:--

"There is yet another dimension to the above principle. In managing its day-to-day affairs a PERSON, performing functions in connection with the affairs of the Federation may often delegate its powers to its officers. Such delegation ordinarily limits the power of the officer within a specified territorial domain. In such a situation, the all encompassing countrywide territorial jurisdiction of the PERSON is localized to a specific limited territorial jurisdiction. For example, Collector of Customs, and officer of F.B.R, has specific territorial jurisdiction limited to a particular area, as opposed to the countrywide territorial jurisdiction enjoyed by F.B.R. Such an officer, therefore, performs a localized function in connection with the affairs of the Federation in a particular area and will be considered to be performing functions within the territorial jurisdiction of the High Court within whose territorial jurisdiction the territorial jurisdiction of the Officer/PERSON falls. In the present case the Deputy Director is an officer of the Directorate General of the Intelligence and Investigation, F.B.R. at Karachi. As per Order dated 9.12.2010 issued by the F.B.R, the said officer enjoys specific territorial jurisdiction confined to Karachi. Similarly a person having territorial jurisdiction limited to Karachi has registered the F.I.R. at Karachi. Therefore, it cannot be said that the Deputy Director or the Directorate is performing functions all over Pakistan as compared to F.B.R., therefore, only the High Court within corresponding territorial jurisdiction will assume jurisdiction in the matter."

In case of Sabir Din (supra) the petitioner was posted as Deputy Assistant Military Estate Officer of Hazara circle Abbotabad, wherefrom he was transferred to Muzaffarabad as Deputy Military Estate Officer which is stated falls within Hazara circle. The petitioner challenged his reversal order in Peshawar High Court through a writ petition, which was dismissed. Hon'ble Supreme Court also dismissed such petition while holding that:--

"The normal consideration of "residence", etc. and the "cause of action" qua territorial jurisdiction, even if attracted in the circumstances, do not support the petitioner's case. The cause of action partly arose at Muzaffarabad and partly at Rawalpindi. The Central Government, as held in the case of Waliullah Safyani, does not reside at any one place, in the realm. However, the Respondent No. 2 whose order (Annexure `B' to the writ petition) was brought under challenge, is at Rawalpindi. On this view the Peshawar High Court would have no territorial jurisdiction. The Hazara Office of the Respondents Nos. 1 and 2 is only one chain in the administrative set up. It has not done anything against the petitioner nor any relief has been sought against it nor even a formal one. Indeed it has not even been impleaded as a party. That aspect of the matter either, would not confer territorial jurisdiction on the Peshawar High Court.

The question having arisen in the context of a writ petition the Peshawar High Court was justified in refusing to exercise jurisdiction on another ground as well. As provided in Article 199(1)(a) of the Constitution the impugned action or the authority taking the same should be within the territorial jurisdiction of the High Court, for exercise of jurisdiction thereunder. None of those conditions is satisfied herein. Therefore, the refusal by the Peshawar High Court to exercise jurisdiction is unexceptionable. The argument of the learned counsel that the petitioner has been left with no forum for seeking relief has not impressed us. There is no reason why should he not act on the observation made in the impugned order that if so advised, the Lahore High Court may be moved in this behalf. We are of the view that it is not a case of first impression. The law has already been laid down in the rulings of this Court including those cited at the Bar and qua special circumstances of this case, no separate general treatment is necessary so as to grant leave to appeal."

In case of Sandalbar Enterprises (Pvt.) Ltd. vs. Central Board of Revenue and others reported in P.L.D. 1997 (S.C.) page 334 the petitioner imported certain consignments from abroad. The same arrived at airport of Karachi. They filed a bill of entry for the release of the same. The custom authorities assessed the levy of regulatory duty imposed under Notification dated 29th October, 1995. Same was assailed before Lahore High Court thus Supreme Court while dismissing the petition held that jurisdiction lies to Sindh High Court. In Para 8, it was observed as under:

"We may observe that it has become a common practice to file a writ petition either at Peshawar, or Lahore, or Rawalpindi or Multan etc. to challenge the order of assessment passed at Karachi by adding a ground for impugning the notification under which a particular levy is imposed. This practice is to be depreciated. The Court is to see, what is the dominant object of filing of the writ petition. In the present case, the dominant object was not to pay the regulatory duty assessed by a Custom official at Karachi. We are, therefore, not inclined to grant leave. Leave is refused."

In all these cases the dispute/issue was not related to the Federation and the effect/impact of the action (function) was not found to be having a general impact upon the general public as is usually found in the matter(s) of enactment of law(s), rule(s), statute(s) or notification/order of the nature having its effect upon the people at large or a class of people residing within territorial jurisdiction of different High Court(s).

1. Before the conclusion of moot issue, relating to the territorial jurisdiction of the High Court (s), we would like to refer to the meaning of the word Federation in Black's Law Dictionary which reads as under:

Federation.--A league or union of states, groups, or people arranged with a strong central authority and limited regional sovereignties --though the individual states, groups, or peoples may retain rights of varying degrees."

The plain reading of above leaves nothing to doubt that it speaks about groups or people arranged with a strong central authority thereby meaning that all linked with such central authority be deemed to be one.

1. Now, we come to what we find from comparative study and analysis of case laws on the said point. This can well be mewed as follows:--

(a) The Federal Government or any body or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in any of the provinces shall still be deemed to function all over the country for those act(s)/action(s) which are meant for whole of the State;

(b) If such Government, body or authority passes any order or initiates an action at Islamabad which has an effect of general applicability upon all souls of the State or a particular class of people;

In such like situation the aggrieved party shall be well within rights to seek help and constitutional protection towards its/their rights.

However, if a particular order or action of an authority is not having its impact upon people at large but is confined to a particular individual, then the jurisdiction to challenge such order or action shall remain with the High Court wherefrom that order or action has been done or taken.

1. In view of above touchstone, there is no cavil in the proposition that in the instant proceedings, petitioner has challenged the notification issued by the Respondent No. 1 (Federation of Pakistan), moreover there can be no denial to the status that there are as many as 15 regions of PCB which run their affairs under the PCB hence the PCB is not a body having its function at Lahore only but does function all over the State, wherever the regional body is established. Not only this but we cannot confine the game of cricket' to a particular place only because the object of establishment of the PCB is to promoteCricket' all over the country and choose a team from all over the country, thus notification impugned and the function(s) of Respondent No. 1, are undoubtedly having a general impact all over the region(s) of PCB. This makes us to view that this Court is competent to examine the legality and validity of notification issued by the Respondent No. 1

2. Having attended the above objection, now we would like to examine the another legal position, surfaced in instant proceeding, candidly similar controversy was adjudicated by Islamabad High Court by judgment dated 04.7.2013 in Writ Petition No. 2242 of 2013, which is assailed by respondents in Intra Court Appeal No. 928/2013, before same Court. The operative part of judgment regarding the issue, involved, being material is reproduced hereunder:--

"Practically, Mr. Najam Sethi is no more Acting Chairman rather his status is of Caretaker being appointed by this Court for a period of ninety (90) days with the object to look into day to day affairs of PCB, cooperate, and ensure the holding of election by the Election Commission of Pakistan within the stipulated period commencing from 21st July, 2013 to 18th October, 2013 which period shall not be extended on any pretext whatsoever."

The above makes it clear that Mr. Najam Sethi is not an Acting Chairman but is a Caretaker who has been appointed by the Court for a specific purpose and specific period i.e 18th October 2013. Thus once the legality of Respondents No. 3, was adjudicated by a competent Court, the propriety demands that this Court must not examine the legality and validity thereof for the simple reason that a decision of this Court, if in conflict with said order, will cause confusion and complicity of the case and if comes in affirmation it will result in prejudicing the intra Court appeal, filed by respondents. In other words, issue, decided by a competent Court, if pending determination before appellate forum, the Court of same status should refrain from deciding such issue as a demand of propriety, fairness, good conscious and equity, therefore, we refrain ourselves to discuss the vires of impugned notification, however petitioner is at liberty to joined the proceeding of Intra Court appeal, if so advised.

Accordingly, this petition is disposed of in terms stated above.

1. Regarding the Petition No. 2020 of 2013; petitioner has challenged the appointment of Respondent No. 3 (Zaka Ashraf) and vires of Part 4 of the impugned notification as illegal and unconstitutional but record reveals that Respondent No. 3 is no more working as Chairman, Pakistan Cricket Board and his re-appointment has already been set-aside as is evident from operative para of judgment of Islamabad High Court which reads as under:--

"Appointment of Mr. Zaka Ashraf by the patron, vide notification dated 13.10.2011 was not on the basis of his career as cricketer, knowledge about game of cricket, administrative qualities and management skills but apparently for the reasons that he was President of ZGBL, a banker in status and due to personal affiliation with the persons on the helm of affairs. Re-appointment of Mr. Zaka Ashraf, is totally deceptive, as no election in accordance with the spirit of democratic process has been held, therefore, same is hereby set aside".

It is also matter of record, later part of prayer was also resolved in same dictum, which follows:

"In this view of the matter, Part-IV of the Constitution of Pakistan Cricket Board consisting of Sections 28, 29,30 and 31 is hereby declared to be void as initio, unconstitutional, besides the democratic values, offensive to rights of individuals qualified to be elected as Chairman PCB, against the principle of transparency, fairness, impartiality, credibility and openness, therefore, all the provisions under Part-IV of the Constitution of PCB are declared to be of no legal effect and it is directed that the same may be deleted forthwith."

Thus, it is evident that this petition has become infructuous and is dismissed as such.

1. So far as the Petition No. 4026 of 2012; petitioner has mainly challenged constitution of 2007, on the ground that same is against Spirit of Ordinance, 1962 and against fundamental rights provided in Chapter 2 of Constitution of Pakistan, 1973. During proceedings it has come on record that such Constitution is no more in field thus instant petition being infructuous is also dismissed.

(R.A.) Petition dismissed

PLJ 2014 Karachi 56

Present: Muhammad Ali Mazhar, J.

MEEZAN BANK LTD.,KARACHI--Plaintiff

versus

M/s. FOCUS APPARELS (PVT.) LTD. & others--Defendants

Suit No. B-62 and C.M.A. No. 11385 of 2012, decided on 28.8.2013.

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

----S. 9--Contract Act, (IX of 1872), S. 129--Civil Procedure Code, (V of 1908), O. I, R. 10--Suit for recovery against dead person--Application for impleading legal heirs--Personal guarantee given by an individual can never be considered as binding upon legal heirs--Legal heirs were neither aware nor deceased ever disclosed about any such guarantee--Contract of continuing guarantee--Question of--Whether a contract is a contract of continuing guarantee--Validity--Continuing guarantee can be revoked by surety as to future transaction by notice to creditor--In absence of any contract to contrary does not mean hold responsible the legal heirs of deceased guarantor as there is no contract with legal heirs--Request of bank for joining legal heirs in suit as necessary and proper party was found to be tenable with direction to make corresponding amendment--Instant case is not case of any mortgaged property by deceased but it is case of guarantee which was automatically revoked upon death of guarantor by fiction of law--Liability of surety to pay on behalf of principal debtor where decree was passed or defendant was directed to make payment of amount--Neither any demand was made in his life time for payment nor any suit was instituted for recovery of any demand or liability arising from documents of guarantee nor any judgment and or decree was passed in the life time of deceased--Neither legal heirs of deceased were proper party nor necessary party in the suit--Plaintiff had failed to figure out any cause of action against legal heirs--Application was dismissed. [Pp. 62, 63, 64 & 65] A, C, E, F & G

Contract Act, 1872 (IX of 1872)--

----S. 131--Revocation of continuing guarantee on surety's death--Documents executed for hypothecation of moveable and immoveable properties--Guarantee was executed in his lifetime--Whether any demand was raised against deceased guarantor in his life time though in guarantee by making demand for payment of defaulted amount upon deceased guarantor. [P. 62] B

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

----S. 514-A--Forfeiture of bond--Civil and criminal law both are two different genera or species of law--When any surety to bond dies, Court by whose order whom such security was demanded to furnish fresh security in accordance with direction of original order. [P. 63] D

M/s. A.I.Chundrigar, Nabeel Kolachi & Muhammad Ilyas, Advocates for Plaintiff.

Mr. Mirza Sarfraz Ahmed, Advocate for Defendants No. 1, 2 and 4 to 6.

Khawaja Shams-ul-Islam, Advocate for legal heirs of Defendant No. 3.

Date of hearing: 7.5.2013.

Order

The plaintiff has brought this application under Order I Rule 10, C.P.C. for impleading the legal heirs of Defendant No. 3.

1. The brief facts are that the plaintiff has filed this suit under Section 9 of Financial Institutions (Recovery of Finances) Ordinance 2001 for the recovery of Rs. 84,539,865.95. The Defendant No. 3 died on 30.8.2011 and the suit against him was filed after his death and on the application of the legal heirs, the name of Defendant No. 3 was deleted from the array of the defendants. Now the plaintiff has filed this application under Order I Rule 10, C.P.C. with the prayer that the legal heirs of the Defendant No. 3 may be impleaded to honour the guarantee furnished by their predecessor in interest.

2. The learned counsel for the plaintiff argued that the deceased Defendant No. 3 had executed a guarantee marked "X-1" to the plaint at pages 863 to 867 and two witnesses had also signed the same. Clause 17 of the personal guarantee clearly stated that in the event of his death his successors will be liable. He referred to Section 131 of the Contract Act which inter alia provides that the death of a surety revokes the continuing guarantee but only in the absence of a contract to the contrary. It was also contended that if a legal proceeding is filed against a dead person, even then the legal heirs can be got joined in his place. Merely because the death of Defendant No. 3 which was reported in one or more newspapers, it does not mean that the Bank had become aware of the fact of death of Defendant No. 3 which took place on 30.8.2011 while the suit was filed on 12.9.2012. In support of his argument, the learned counsel for the plaintiff relied upon the following case law.

(1) 2008 CLD 552 (First Women Bank Ltd. v. Mrs.Afifa Iftikhar & 2 others). Sections 126 and 128 of the Contract Act. Even where contract had become unenforceable against the principal borrower yet the guarantor be liable for surety executed by him.

(2) 2005 SCMR 72 (Rafique Hazquel Masih v. Bank Alfalah Ltd, & others). Liability of surety under Section 128 of Contract Act, 1872, is co-extensive with that of the principal debtor, unless it was otherwise provided by the contract.

(3) PLD 2003 Lahore 615 (Malik Bashir Ahmad Khan & another v. Qasim Ali and 12 others). Order I Rule 10 CPC. Suit against the only defendant who was dead at the time of institution of the suit. Nullity in the eyes of law and could not be revived by impleading the legal heirs of the deceased defendant. Plaintiff, in such a situation, subject to law, had the option to bring a fresh suit against the heirs on the basis of the same cause of action. Such rule, however, would not be applicable, where the suit had been instituted against more than one defendants and one of them was dead at the relevant time and suit in that situation would not be nullity in totality, but would be validly instituted against the living defendants, and defective qua the deceased party, which defect would be curable by the plaintiff, bringing on record the heirs of the deceased defendants.

(4) 2003 CLD 1788 (M/s.Habib Bank Ltd. v. M/s.Indus Lenentose (Pvt.) Ltd. and others). Order I Rule 10, C.P.C. Suit for recovery of loan amount. Factum of demise of mortgagor-defendant prior to filing of suit came into knowledge of Bank from leave to defend application filed by other defendants. After demise of mortgagor-defendant, whatever right she had in mortgaged property, same had devolved upon her legal heirs. Request of Bank for joining legal heirs in suit as necessary and proper party within scope of Order I, Rule 10, CPC.

1. On the contrary, the learned counsel for the legal heirs of the Defendant No. 3 argued that the so-called letter of personal guarantee dated 16.3.2006 is a manipulated and forged document and more particularly the last page has been pasted from somewhere else. The financial facilities in question were offered to the Defendant No. 1 on 10.08.2010 then how the personal guarantee could be executed more than four years ago, therefore, it is established beyond any doubt that the Plaintiff/Bank has used some old and expired personal guarantee. It was further averred that all the legal heirs of late Defendant No. 3 are major and are running their own business separately, and are not the customer, borrower, mortgagor of the plaintiff, hence they cannot be held liable as successors in respect of the alleged so-called liabilities of the Defendants. The personal guarantee dies with the person, moreover, the so-called personal guarantee was valid only for one year from 16.3.2006 and ended with the expiration of the particular financial year. The personal guarantee given by an individual can never be considered as binding upon his legal heirs. The legal heirs were neither aware nor their deceased father ever disclosed about any such guarantee. It is well settled principle of law that any agreement, contract or deed which is contrary to any law, is considered to be null and void, therefore, the aforesaid so-called personal guarantee is in gross violation of Sections 23 and 131 of the Contract Act, which provide that in case of death of a surety, the surety stands revoked immediately, hence in view of this legal position, the answering legal heirs are not liable for any so-called consequences of the fabricated personal guarantee. In support of his arguments, the learned counsel relied upon following case law:--

(1) 2007 CLD 1205 (Muslim Commercial Bank v. East & Exports (Pvt.) Ltd. & others). The contract of surety ship/guarantee is to be construed according to the terms mentioned therein and must be construed strictly so that no liability is imposed on the surety, which is not clearly and distinctively covered by the terms of agreement. Case of `Blest v. Brown' 1862 4 De GF&J 367, can be referred in this respect. Further the contract of guarantee, is required under law to be specific identifiable, devoid of uncertainty. Ref: Law of Guarantees (Second Edition) by Geraldine Mary Andrews and Richard Millett, where at pages 164 and 165. It has been expressed:--

"It is possible for the guarantee to be limited as to the type of principle transaction guaranteed. If the principal transaction intended to be the subject of the guarantee is not clearly identified, the guarantee may be void for uncertainty, such as where a guarantee for the performance of the lessee's obligations under a lease could reasonably refer to two leases. Where the guarantee refers to a particular transaction, the surety will not be liable for a different transaction or one outside the scope of that guarantee, such as where the guarantee relates to a transaction or a given amount but the transaction proceeds for a larger amount, or where the creditor advances monies to the principal under a different facility to the one identified in the guarantee, or where the guarantee is limited to banking transactions and facilities and the creditor owed money in respect of debt discounting goods."

(2) 2009 CLD 1476 (Mst.Fayyazi Begum and 6 others v. Ali Hassan and another). Sections 126, 131, 135 and 139. Surety bond. Death of surety before any direction or decree was passed for the recovery of the amount from the defendant. Effect. Such bond was the paramount document as rights and obligations of the surety, could be determined on the basis of surety bond alone. No amount was determined against the defendant during the life time of the surety. Surety died before any direction or a decree was passed for the recovery of the amount from the defendant. Liability of the surety to pay on behalf of the principal debtor as per the surety bond arose only where the decree was passed or the defendant was directed to make payment of the amount. Parvatibai v. Vinayak Balwant AIR 1939 Bom. 23; Narayan Ramchandra Bhagwat v. Markandya Tukaram and another AIR 1959 Bom. 516 and T.N. and Q Bank v. Official Assignee AIR 1940 Mad. 396.

1. Heard the arguments. It is an admitted position that the Defendant No. 3 Khalid Iqbal expired on 30.8.2011, while the suit against him was filed on 12.9.2012 in this Court, which shows that when the suit was filed against the Defendant No. 3 it was against a dead person. On 22.10.2012 the plaintiffs counsel filed amended title showing the name of the legal heirs of deceased Defendant No. 3. One of the legal heirs filed an application under Order I Rule 10(2), CPC (CMA No. 10229/2012) in which he requested that the name of the Defendant No. 3 be deleted from the array of the defendants. On 25.2.2013 after hearing the arguments the name of the Defendant No. 3 was deleted and on the same date the plaintiffs application (CMA No. 11385/2012) was fixed for orders in which it was prayed that the legal heirs of Defendant No. 3 be impleaded and joined as defendants. So far as the present application is concerned, it is to be seen first whether the Defendant No. 3 who expired much earlier from the date of the institution of this suit could be impleaded. The answer is in negative. The suit could not have been filed against a dead person and without passing any order by this Court whether the plaintiff has any cause of action against the legal heirs or not, they cannot be impleaded. The actual cause of concern for making this application is the indenture of guarantee available, which is a personal guarantee of the deceased Defendant No. 3 singed by him on 16.3.2006. The main objective of making this application against legal heirs is Clause 17 of the guarantee in which the deceased defendant agreed that the guarantee shall be binding on its successor-in-interest. The learned counsel for the legal heirs vigorously disputed the guarantee document and argued that after second page of guarantee which is available at page-865 another page was added by the plaintiff, which is available at page-867 which made the entire document suspicious. This is matter of record that the guarantee ended at page-865 with signatures of two guarantors including the deceased Defendant No. 3, but another page with the insertion of clause 18 and with the names and signatures of the same guarantors with witnesses is appended without showing any justification as to what was the rationale to add third page or an additional page with the indenture of guarantee. The guarantee was signed in the month of March, 2006, but the suit was filed by the plaintiff under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 on the basis of cause of action accrued in the month of August, 2010 and onward. The details of cause of action are mentioned in Paragraph 24 of the plaint. The sanction letter dated 10.8.2010 annexure "A" to the plaint communicated to the Defendant No. 1 by the plaintiff refers to the offer letter dated 31.8.2009 in which besides, showing the names of guarantors from Defendant No. 1's directors, the names of other guarantors viz. Khalid Iqbal (deceased Defendant No. 3), Daanish Javed and Javed Iqbal are also mentioned which makes it clear beyond any shadow of doubt that the deceased Defendant No. 3 was not director of the Defendant No. 1, but he only stood a guarantor. The main focus of arguments advanced by the learned counsel for the plaintiff was on Section 131 of the Contract Act that the death of the surety revokes the continuing guarantee only in absence of any contract to the contrary and he heavily relied upon Clause 17 of the guarantee document according to which, despite death of Defendant No. 3, his legal heirs are liable to make the losses good as their predecessor-in-interest made the guarantee binding on his legal heirs.

2. Before proceeding ahead, it is necessary to examine what is actually a contract of guarantee. Under Section 126 of the Contract Act a contract of guarantee is a contract to perform promise or discharge liability of a third person in case of his default. The person who gives guarantee is called the surety. The person in respect of whose favour the guarantee is given is called the principal debtor and the person to whom the guarantee is given is called the creditor. The contract of guarantee is to be construed according to the terms and conditions mentioned in the indenture of guarantee and it must be construed strictly so that no liability imposed on the surety, which is not clearly and distinctively covered by the terms of agreement. The terms of guarantee would demonstrate that the guarantor has bound himself to indemnify the creditor. Under Section 127, it is provided that anything done or any promise is made for the benefit of principal debtor may be sufficient consideration to the surety for giving the guarantee. It is well settled that the contract of guarantee cannot be enforced unless there is some consideration for the guarantee and the contract of guarantee must be based on consideration and if the consideration so specified is not brought on record then Court cannot assume such consideration.

3. Now I would like to refer to the contract of continuing guarantee. According to Section 129 of the Contract Act a guarantee which extends a series of transactions is called a continuing guarantee. The question whether a contract is a contact of continuing guarantee or not this can only be determined with a reference to whole instrument. A continuing guarantee can be revoked by the surety as to future transaction by notice to the creditor as provided under Section 130 of the Contract Act. Section 130 provides the power of revocation of surety by the surety in his lifetime after due notice to creditor while Section 131 envisages the revocation of continuing guarantee by surety's death and stipulates that the death of the surety operates, in the absence of any contract to the contrary, as a revocation of continuing guarantee so far as regards the future transactions. The condition "in absence of any contract to the contrary" has much importance and significance for the revocation of continuing guarantee on surety's death. The counsel for the plaintiff wants to implead the legal heirs of Defendant No. 3 on the notion that though the surety's death operates revocation for the future transactions, but under Clause 17 the surety himself admitted that his guarantee would be binding upon the legal heirs. Whether it is binding or not, this cannot be answered without thrashing out the indenture of guarantee. According to plaintiff own assertion, the plaintiff entered into a Master Istisna Agreement with the Defendant No. 1 on 5.8.2010 and in the sanction letter the tenure of facility was to be valid and disbursed up to 31.3.2011, even in the plaint nothing has been shown against which facility the deceased guarantor was liable for the guarantee which he executed in the year 2006. In Paragraph No. 6 of the plaint, the details of documents executed for hypothecation of moveable and immovable properties are mentioned which were executed by the Defendant No. 1 in favour of the plaintiff. Though the guarantee stated to be continued in effect unless the amount payable by the customer under the facilities have been finally paid in full to the entire satisfaction of the bank, but again nothing is mentioned in the plaint as to what financial facility was availed by the Defendant No. 1 against the guarantee executed by the Defendant No. 3 in his lifetime. It is also not mentioned whether any demand was raised against the deceased guarantor in his lifetime though in the guarantee the bank in its discretion could have enforced the guarantee by making a demand for payment of the defaulted amount upon the deceased guarantor. Though the deceased guarantor under Clause 5 of the guarantee agreed that the bank in case of death shall have a right to dispose of the moveable and immovable assets of the guarantor which are given in the schedule attached, but no schedule is attached with the guarantee to show that whether the guarantor provided any details of his moveable and immovable assets for the disposal and recovery of amount availed by the Defendant No. 1.

4. There is a vast difference between a guarantor and a mortgagor. Had the Defendant No. 3 in his lifetime mortgaged the property against some finance facility availed by him, position could have been different and recovery could have been made through the disposal of his assets by impleading his legal heirs in the suit and the liability of deceased defendant could have been discharged from selling his estate which is not the case in hand. Mere mentioning a word in the guarantee that this would be binding on the successor-in-interest will have no significance and the legal heirs could not be held responsible unless they agreed to the covenant made in the guarantee by their predecessor-in-interest in their absence. The condition mentioned under Section 131 that "in the absence of any contract to the contrary" does not mean to hold responsible the legal heirs of the deceased guarantor as there is no contract with the legal heirs. So the condition mentioned under Section 131 of the Contract Act is not applicable. It is not the case of the plaintiff that if legal heirs of the Defendant No. 3 are not impleaded the bank shall suffer irreparable loss or injury as besides one personal guarantee of Defendant No. 3 there are many other guarantors available. The plaintiff has itself shown that the charge has been created on all the moveable and immovable assets of the Defendant No. 1 and various letters of hypothecation have been signed on behalf of Defendant No. 1 and in favour of plaintiff including the personal guarantees of directors.

5. At this juncture, I would like to observe only for the purpose of a reference that nevertheless, the civil and criminal law both are two different genera or species of law but the concept of surety and its liability/obligation and or responsibility is more or less alike and one and the same in both the laws. If a comparison is drawn between guarantor and surety, they have common role and obligation and both are bound for another person. Section 514, Cr.P.C. pertains to procedure on forfeiture of bond. Sub-section (6) makes it amply discernable that where surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of bond. Further mechanism to cope with or deal such a situation, Section 514-A, Cr.P.C. makes it more visible that when any surety to a bond dies, the Court by whose order such bond was taken may order the person from whom such security was demanded to furnish fresh security in accordance with the directions of the original order.

6. The counsel for the plaintiff referred to the case of First Woman Bank Ltd. (supra) in which well settled principle has been discussed that where the contract which become unenforceable against the principal borrower even then the guarantor is liable. There is no cavil to this proposition which is not applicable in the present case. Similarly, the case of Rafique Hazquel Masih the hon'ble Supreme Court has expounded that the liability of surety is co-extensive with that of the principal debtor, which again has no germane to the facts of the present case. He next referred to the case of Malik Bashir Ahmed Khan in which the learned Lahore High Court has held that if the suit had been filed against the only defendant who was dead at the time of institution of suit shall be nullity in the eyes of law but such rule shall not be applicable in the case where the suit has been instituted against more than one defendants and the defect if any shall be curable by the plaintiff after brining on record the legal heirs of the deceased defendant. This judgment is also distinguishable as it pertains to the challenge to the sale of property which was mutated in the name of deceased defendant and since the right of property was devolved upon legal heirs hence in order to safeguard their rights and interest, they were allowed to be impleaded but in the case in hand in my view no liability has been devolved upon the legal heirs of the Defendant No. 3. He further referred to the case of Habib Bank Ltd. (supra), another case of recovery of loan amount which is also distinguishable. In this case, after the demise of mortgagor-defendant, the learned Court held that whatever right the mortgagor had in the mortgaged property devolved upon her legal heirs hence, the request of bank for joining legal heirs in the suit as necessary and proper party was found to be tenable with the direction to make corresponding amendment. The case in hand is not the case of any mortgaged property by the deceased defendant but it is the case of guarantee which was automatically revoked upon the death of guarantor by fiction of law.

7. The learned counsel for the proposed legal heirs referred to the case of Muslim Commercial Bank Ltd. in which the Court held that the contract of guarantee is required to be specific and be void for any uncertainty, and must referred to a particular transaction or transactions. In my view, the ratio of this precedent reflects true legal position. He further referred to the case of Mst.Fayyazi Begum in which the learned Judge held that no amount was determined against the defendant during the lifetime of the surety. Surety died before any direction or decree was passed for the recovery of the amount. Liability of the surety to pay on behalf of the principal debtor as per the surety bond arose only where the decree was passed or the defendant was directed to make payment of the amount. In this case also as I discussed earlier neither any demand was made to the Defendant No. 3 in his lifetime for payment nor any suit was instituted in his lifetime against the Defendant No. 1 for the recovery of any demand or liability arising from the documents of guarantee nor any judgment and or decree was passed against Defendant No. 1 in the lifetime of deceased Defendant No. 3.

8. As a result of above discussion, I am of the firm standpoint that neither the legal heirs of the deceased Defendant No. 3 are proper party nor necessary party in the suit. The plaintiff has failed to figure out any cause of action against the legal heirs of the Defendant No. 3. Consequently the application is dismissed.

(R.A.) Application dismissed

PLJ 2014 Karachi 65 (DB)

Present: Muhammad AliMazhar & Sadiq Hussain Bhatti, JJ.

ABDUL RASHEED and 2 others--Petitioners

versus

PROVINCE OF SINDH through Chief Secretary, Sindh and 5 others--Respondents

C.P. No. D-4924 of 2013, heard on 5.12.2013.

Sindh Local Government Act, 2013--

----S. 13(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Delimination process relating to ward was challenged--Objections from residents of an area were invited--Implications and repercussions of non-compliance of provisions--Validity--No such objections were invited for declaration of rural area as urban area prior delimitation, so inclusion of rural area in urban area in exercise of delimitation was illegal--If any objections raised by any person in terms of public notice and non-mentioning and or non-adverting to objections make entire exercise redundant and superfluous as there was not purpose to invite objections against delimitation if same were not to be considered--No findings were given as to why, if same area was included in urban area--Grant of relief under Art. 199 of Constitution is intended to foster, administration of justice and turned down orders which were self evidently, arbitrary, capricious and suffering from misreading of record--Where impugned order was found illegal, it can be rectified rescinded and altered--If any order was passed in violation of law or nullity in eyes of law, High Court in exercise of its constitutional jurisdiction may refuse to perpetuate something which was obviously unjust and unlawful--Impugned order was set aside. [Pp. 69 & 70] A, B, C & G

Appeal--

----It is well settled proposition of law that appeal is continuation of original proceeding--It is responsibility and obligation of each appellate authority to decide appeals on merits and not in slipshod manner--Appellate authority ought to decide appeals in accordance with justice, equity and good conscience to adjust rights of parties and to obviate coming into existence of impossible, contradictory or unworkable order. [P. 70] D & E

Sindh Local Government Act, 2013--

----S. 153-A--Delimitation and electoral units--Process relating to Ward--Challenge to--Where power is conferred on any person, authority or body, officer or Council under provisions of Act, 2013, such power shall be exercised fairly, justly, reasonably and in public interest--Pros and cons of matter lead to conclusion, that appellate tribunal had failed to exercise its jurisdiction in accordance with law and impugned order was liable to be set aside. [P. 70] F

Mr.Yawar Farooqui and Mr. Irfan Memon, Advocates for Petitioner.

Mr. KhalidJaved Khan, Learned Advocate General Sindh, Mr. Adnan Karim and Mr. Abdul Jalil Zubedi, AAG for Respondents No. 1 to 4.

Mr. Abdullah Hanjrah, Law Officer, ECP, Mr. S. Rashid Hussain, Election Officer, ECP and Mr. Abdul Aleem Ghazi, Assistant Commissioner Census are also present.

Date of hearing: 5.12.2013.

Judgment

Muhammad Ali Mazhar, J.--The Petitioners have challenged the Order dated 8.11.2013, passed by the Appellate Tribunal/ Commissioner Hyderabad, Division in Appeals No. 1 to 23/2013 and the Notification dated 26 September, 2013 whereby the Deputy Commissioners of respective Districts were appointed Delimitation Officers in respect of Local Councils established under the Sindh Local Government Act, 2013. The petitioners have also challenged the delimitation process relating to Ward No. 41 to Ward No. 44, Municipal Committee Nawabshah on the ground fact the delimitation process was completed in violation of the Guidelines as well as the Sindh Local Government Act, 2013 and the Sindh Local Councils (Election Rules), 2013.

1. In the Guidelines it was provided that the area should be as far as possible compact, contiguous and territorial unity, population, boundaries of Local Councils should as far as possible not cross the revenue units viz. Deh, Tapa, Circle, Taluka or District. It was further mentioned in the Guidelines that there will be as far as possible minimum changes in the present set up.

2. In the procedure laid down for the delimitation, it was further provided that the Deputy Commissioner concerned shall prepare preliminary proposals and objections shall be invited. For the purpose of election, a local area shall be divided into electoral units keeping in view the number of seats in the council and the population of local area. It was further provided that in rural areas as far as possible, delimitation of present Union Councils may not be disturbed and that the Tribunals will consider the representations and hearing those who wish to be heard, make such amendments, alterations or modifications in the preliminary list so published and after disposal of all representations, the Election Commission of Pakistan shall arrange the final list of electoral units published in the Official Gazette.

3. The learned counsel for the petitioner argued that on 8th October, 2013 objections for delimitation were invited in the daily newspaper "Juraat" and in consequence thereof, the petitioner filed his objections before the Delimitation Officer of District Benazirabad. Since objections raised by the petitioners were not considered in relation to Ward No. 41 to Ward No. 44 by the Delimitation Officer, they filed appeals before the Appellate Tribunal/Commissioner, Hyderabad Division, which was dismissed vide order dated 8.11.2013. The petitioner raised the following objections before the appellate tribunal:

(i) The delimitation order does not furnish the earlier/previous position of wards;

(ii) Certain rural areas that does not qualify to be-urban have been included in Municipal Committee limits;

(iii) The earlier population i.e. 189244 now has been shown to be 190995 and the increase is not explained, 14 Wards were indicated where population has exceeded;

(iv) Composition of wards (dimensions etc.) is not appropriate;

(v) Some of the wards, are bifurcated by barriers like Gajra Wah and Railway Line;

(vi) Some area of Taluka Sakrand has been included in Municipal Committee limits;

(vii) The people from Deh 87 and 87-A Nasrat also objected to inclusion in Municipal Committee Nawabshah limits.

1. Since the appellate tribunal failed to consider the objections against the delimitation, the petitioners have filed this petition with the prayer that the impugned order may be set aside and the earlier composition of the Town Committee be restored to its original position.

2. It transpires from the impugned order that the Delimitation Officer before the tribunal admitted that the discrepancy in population in some wards for the reasons that Census Blocks were also to be considered. It was further admitted that the population of Census wards since not uniform, some inconsistencies have been caused. It was further stated that areas, which in view of the petitioners are rural, have begun to develop quite close to the urban areas and it will expedite the process of development. He explained the rise in population by stating that it was because of inclusion of some new areas. This inclusion is in fact has also been challenged by the petitioners.

3. After considering the response of the delimitation officer, the appellate tribunal, without discussing the objections or passing any speaking order, simply observed that the objections raised by petitioner are quite adequately responded and, according to his wisdom, there was no substantial reason to re-do the whole exercise afresh. Hence, he upheld the delimitation order in respect of Municipal Committee, Nawabshah and the appeals were dismissed.

4. The learned Advocate General Sindh filed comments on behalf of Respondent No. 4 and he argued that some parts of the adjoining areas were already part of the Municipal limits; people of these areas are enjoying best of civic and municipal amenities; the inclusion is based on the reason of rapid urbanization of these areas. He further argued that the delimitation officer followed the guidelines of the Sindh Local Government Department; the adjoining areas are in very close proximity of the city centre and there has been significant rural to urban migration in the area. He also argued that no substantial question of law has been raised and there is no case made out hence the petition is liable to be dismissed. The representative of Respondent No. 6 took the stand that delimitation process and exercise was to be completed under the Sindh Local Government Act, 2013 and the Sindh Local Councils (Election Rules), 2013 and the Respondent No. 6 has no role to play in the exercise of delimitation.

5. Heard the arguments. Since the matter needs urgent, attention of this Court due to paucity of time as the date of Sindh Local Councils Election is fast approaching, hence by consent of the parties and their learned counsel, it was agreed that let this petition be disposed of at kateha peshi stage. It is an admitted fact that through the impugned delimitation process, some rural areas have been included in the urban area for which a proper mechanism is provided under Section 13 of the Sindh Local Government Act, 2013. As per Section 13(1) of the said Act, the Government may, after inviting objections from the residents of an area and hearing those from amongst them who wish to be heard, declare by Notification such area, to be an urban area or rural area, as the case may be. The first and foremost argument of the learned counsel for the petitioners is that no such objections were invited in terms of Section 13 (1) of the Act of 2013 for declaration of a rural area as urban area prior delimitation, so the inclusion of rural area in the urban area in the exercise of delimitation is illegal. The learned counsel for the petitioner further referred to Section 153-A of Act, 2013 which provides that where power is conferred on any person, authority or body, officer or Council under the provisions of this Act, such power shall be exercised fairly, justly, reasonably and in public interest provided that the action taken in exercise of power conferred the provisions of this Act shall be proportionate keeping in view all the facts and circumstances.

6. We have also seen the proposal made by the delimitation officer available at page 41, dated 25 October, 2013 in which also he has not discussed the objections, if any, raised by any person in terms of public notice and non-mentioning and or non-adverting to the objections makes the entire exercise redundant and superfluous as there was no purpose to invite objections against delimitation if the same were not to be considered, addressed or discussed in the final proposal for delimitation.

7. The Appellate Tribunal has only reproduced the response made by the delimitation officer and even it has failed to discuss the implications and repercussions of non-compliance of the provisions of Section 13 of the Act of 2013. No findings have been given as to why, if some rural area has been included in the urban area, whether the provisions made under Section 13 of the Sindh Local Government Act, 2013 have been followed or ignored.

8. It is also a fact that delimitation was to be made on the basis of 1998 census which fact has also been admitted by the learned AG. However, in the Appellate Order it is mentioned that census wards, since not uniformed, therefore some inconsistencies have been caused and another justification was given that since the rural area is developing it was included in the urban area. Again nothing has been observed either in the proposal of delimitation or the impugned order whether it was done after complying with the requirement envisaged under Section 13 of the Sindh Local Government Act, 2013 or not?.

9. Chapter II of the Sindh Local Councils (Election Rules) 2013 pertains to delimitation and electoral units. Under Rule 8, the delimitation officers and appellate tribunal have been notified. While under Rule 9, the responsibility has been entrusted upon the delimitation officer/appellate tribunal to arrange preliminary list of electoral units delimited under Rule 8. It is open to any person who is entitled to vote he may make representation in respect of the delimitation to such officer and authority notified under Rule 8.

10. Under Rule 10, the appellate tribunal has been conferred powers to decide the representation and hearing those who wish to be heard and make amendments, alterations or modification in the preliminary list published under Rule 9. The appellate tribunal may also revise the final lists of delimitation of a council by recording reasons. A simple glimpse to Rule 10 makes it abundantly clear that vast powers have been given to the appellate tribunal to hear the appeals and even by recording reasons, the tribunal may even revise the list and notify the same for general information.

11. It is well settled proposition of law that appeal is a continuation of original proceedings. It is the responsibility and obligation of each appellate authority to decide the appeals on merits and not in a slipshod manner. The plethora of dictums laid down by the superior Courts do show that the appellate authority ought to decide the appeals in accordance with justice, equity and good conscience to adjust the rights of the parties and to obviate the coming into existence of impossible, contradictory or unworkable orders. Even under Section 153-A of Sindh Local Government Act, 2013, much emphasis has been made that where power is conferred on any person, authority or body, officer or Council under the provisions of this Act, such power shall be exercised fairly, justly, reasonably and in public interest. The pros and cons of the matter lead us to the conclusion that the appellate tribunal has failed to exercise its jurisdiction in accordance with law and the impugned order is liable to be set aside. The grant of relief under Article 199 of the Constitution of Pakistan is intended to foster the administration of justice and turn down the orders which are self-evidently arbitrary, capricious and suffering from misreading of record. Where the order impugned is found illegal, it can be rectified, rescinded and altered. If any order is passed in violation of law or nullity in the eyes of law, this Court in exercise of its constitutional jurisdiction may refuse to perpetuate something which is obviously unjust and unlawful.

12. As a result of the above discussion, the impugned order dated 8.11.2013 passed by the Appellate Tribunal/Commissioner, Hyderabad Division in Appeals No. 1 to 23/2013 is set aside and matter is remanded back to the Appellate Tribunal/Commissioner, Hyderabad Division with the directions to decide the appeals afresh within a period of ten days positively so that the schedule of forthcoming elections of local council shall not be affected. Petition stands disposed of along with listed application.

(R.A.) Case remanded

PLJ 2014 Karachi 71

Present: Muhammad Ali Mazhar, J.

M/s. RAZIQ INTERNATIONAL (PVT.) LTD. through Vice-President--Plaintiff

versus

PANALPINA MANAGEMENT LTD.,VIADUKTSTRASSE, SWITZERLAND--Defendant

Suit No. 303 and C.M.As. Nos. 3741 & 2787 of 2012, decided on 29.11.2013.

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

----O. VII, Rr. 10 & 11, O. XXXIX, Rr. 1, 2--Specific Relief Act, (I of 1877), S. 21--Return/rejection of plaint--Lacks pecuniary or territorial jurisdiction--Misconceived and deficient plaint was bound to be returned as exclusive foreign jurisdiction clauses in international commercial contracts--Agreement of service was entered into between parties--Service agreement was terminated--No business office in Pakistan--Territorial jurisdiction to proceed case as office of plaintiff was situated at Karachi--Termination letter of service agreement was received at Karachi--Suit for declaration injunction and damages--Maintainability of suit--Clause in agreement with regard to exclusive or non-exclusive jurisdiction of Court of choice is not determinative but is most crucial factor and when question arises as to nature of jurisdiction agreed to between parties, Court has to decide same on a true interpretation of contract on facts and in circumstances of each case--Court should also consider relative case of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of view of premises, and all other practical problems that make trial easy, expeditious and inexpensive--Court at Switzerland has sufficient nexus and proximity to dispute in hand and defendant carries on business in Switzerland--Forum selection clause cannot be held against public policy or arbitrary in nature as presumption of law is that parties were oblivious to their relative convenience or inconvenience at time entering into a contract--There are no strong reasons for exercising any discretion in favour of plaintiff--Proceedings in suit were stayed, however, it is open to plaintiff to institute proper proceedings for adjudication of its claim before competent Courts in city of Switzerland--Since proceedings have been stayed, CMA moved under Order 39 Rule 1 and 2, C.P.C. has become infructuous--Applications were disposed of. [Pp. 89 & 90] D & E

Service Agreement--

----Termination of agreement--Territorial jurisdiction--Situated business activities--No business in Pakistan--Sole reason alone would not give any cause of action to get ride of or override forum selection clause--Validity--Mere existence of an alleged affiliated company does not vanish and or override either forum selection clause or choice of law mutually agreed in form of a concluded contract between parties. [P. 58] A

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

----O. VII, R. 10--Return of plaint--Indenture of power of attorney was attested by notary public--Validity--Court can return plaint at any stage of suit with direction to present to Court in which suit should have been instituted and while returning of plaint judge shall endorse thereon date of its presentation and return with a brief statement of reasons of returning it--In instant case neither plaint can be returned nor rejected keeping in view forum selection clause and naturally when parties had agreed to resolve their dispute by a particular Court then mere returning of plaint would not serve any purpose as same cannot be presented as it is by plaintiff in Court at Switzerland. [P. 89] B & C

Khawaja Shams-ul-Islam, Advocate for Plaintiff.

Mr. Ali Zahid Rahim, Advocate for Defendant.

Date of hearing: 5.8.2013.

Order

Muhammad Ali Mazhar, J.--The plaintiff has filed this suit for Declaration, Injunction and Damages and prayed as under:--

I. Declaration that the termination of the Service Agreement dated 1.11.2010 by the defendant on 15.2.2012 is patently illegal, violative of service agreement itself read with Section 202 of the Contract Act, therefore, the same has no value in the eyes of law, and is void ab-initio, having no legal consequences, hence this Hon'able Court may be pleased to set aside the termination dated 15.2.2012.

II. Declare that the defendant, under the garb of placement of plaintiff's name in the US Entity List, cannot terminate the Service Agreement executed by them with the plaintiff, as the plaintiff has not committed any breach of the agreement.

III. Grant mandatory injunction, suspend the operation of the impugned termination letter dated 15.2.2012, consequently this Hon'ble Court may be pleased to issue directions to the defendant to act upon the Service Agreement dated 1.11.2010 till final disposal of the suit.

IV. Grant permanent injunction, restrain the defendant, its agents, representatives, attorneys, assigns or any person, persons, company or organization, claiming on their behalf, not to interfere in the lawful business activities/operations with and through the plaintiff as well as not to appoint any other freight forwarding, logistics and other related domestic ancillary services agent except the plaintiff, till final disposal of the suit.

V. Grant money decree in favour of the plaintiff and against the defendant, in the sum of US $ 10 million, presently equivalent to about Pak Rs. 9.2 billion, on account of damages due to the reasons fully explained in Paras 15 to 25 of the body of the plaint.

VI. Any other better relief(s) which this Honourable Court may deem fit and proper under the circumstances of the case may be passed.

VII. Cost of the suit.

1. The brief facts of the case as narrated in the plaint are that the plaintiff is engaged in the business of freight forwarding, logistic import and export. The defendant approached the plaintiff in the year 1999 for doing business in Pakistan and Afghanistan territories and in this regard agreement of service was entered into between the plaintiff and defendant. It was further contended that the defendant unilaterally and illegally terminated the service agreement on 15.2.1012 by invoking Clause 20.2 of the agreement which could not be terminated as the plaintiffs valuable interest was created. It was further contended that the defendant on 15.2.2012 sent a shocking e-mail to the plaintiff in which it was mentioned that due to listing of the plaintiff's name on the list of Bureau of industry and Security, US Department of Commerce, the defendant without hearing the plaintiff's point of view terminated the agreement. In Paragraph-25 of the plaint, the statement of claim has been described while in Paragraph-29, the plaintiff has described the cause of action and stated that this Court has territorial jurisdiction to proceed the case as office of the plaintiff is situated at Karachi, termination letter of Service Agreement was received at Karachi and business activities with the defendant under the aforesaid service agreement were largely initiated and being carried out from Karachi.

2. The learned counsel for the defendant has filed an application under Order VII Rules 10 and 11 Civil Procedure Code for return/rejection of the plaint. In the supporting affidavit it is stated that the defendant is a Swiss company with its headquarters in Basil, Switzerland and it has no business office in Pakistan hence this Court lacks adjudicatory jurisdiction. It was further stated that service of process via DHL (courier service) is not an adequate service of process under the Swiss Laws. An affidavit of Dr.Maurice Courvoisier, a Swiss Law Expert, is also attached in which he has described the Swiss Laws as to how the process of service should have been effected. In the application, the learned counsel for the defendant heavily relied upon Clause 22 of the Service Agreement which is reproduced as under:--

"22. Dispute resolution and applicable law:

22.1 Any dispute, controversy or claim arising out of or relating to this Agreement or to a breach of it, including its existence, interpretation, performance or termination shall be discussed and settled amicably and in good faith between the panics under participation of either party's executive management.

22.2 Any dispute that the parties are unable to resolve within 30 (thirty) days after written notice of either party shall be submitted to the exclusive jurisdiction of the competent Courts of the City of Basel, Switzerland.

22.3 This Agreement shall in all respects be governed by and interpreted in accordance with the laws of Switzerland, exclusive of its choice of law and conflict of law principles.

22.4 Either party acknowledges and agrees that a breach of the provisions of Sections 17 and 18 of this Agreement would cause the non-breaching party to suffer irreparable damage that could not be adequately remedied by an action at law. Therefore, in addition to monetary damages (including reasonable attorney's fees) and other legal remedies, the parties agree that each of the parties shall be entitled to obtain equitable and injunctive relief as may be necessary to restrain any threatened, continuing or further breach by the other party, without showing or proving any actual damages sustained by the non-breaching party, in any competent jurisdiction at the sole discretion of the non-breaching party, notwithstanding Sections 22.2 and 22.3

1. The learned counsel for the defendant robustly focused on the exclusive forum selection clause and choice of law. He argued that the suit has been wrongly instituted in this Court. It was further averred that whole matter is to be examined from the perspective and outlook of private international laws as the defendant has its domicile abroad and it has no business activity of any kind in Pakistan. Both parties consciously and out of their freewill chosen and agreed upon the exclusive jurisdiction of the competent Court of Basel, Switzerland hence Service Agreement in question shall in all respect be governed by and interpreted in accordance with the laws of Switzerland. Learned counsel further argued that it is a settled law that wholly misconceived and deficient plaint is bound to be returned to the plaintiff as per the stipulations as the exclusive foreign jurisdiction clauses in international commercial contracts are to be enforced essentially in order to preserve the sanctity of such international commercial contracts. It is also a settled law that provisions of Order VII Rule 10, CPC are mandatory in nature and adjudication by a Court without jurisdiction is coram-no-judice and when any Court lacks pecuniary or territorial jurisdiction, the proper course is to return the plaint for presenting to the proper Court. So far as the cause of action is concerned, the learned counsel argued that plain reading of plaint shows that suit is wholly misconceived and nothing but an attempt to waste precious time of this Court. Learned counsel further argued that without prejudice to the submissions made on exclusive forum selection clause, the plaint is otherwise liable to be rejected as under Section 21 of Specific Relief Act, the present service agreement is not enforceable. It is a well settled law that in a service contract involving unique and distinct provision of service running minutes can never be specifically enforced. Plain reading of the plaint shows that the plaintiff has claimed money decree in the sum of US $ 10 million and if the suit is decreed, alleged non-performance of agreement shall stand compensated in terms of money hence no case of any injunctive relief is made out. Not only plaint is liable to be returned but injunction application is also liable to be dismissed with cost. In support of his arguments, he referred to following case law:

(1) 2007 CLD 1324 (Light Industries (Pvt.) Ltd. v. M/s.ZSK Strickmaschinen Gmbh). Exclusive Jurisdiction clause in an agreement. Such clause in a contract is part of consideration of the agreement between the parties on the basis of which parties enter into a contract and such consideration should not be ignored lightly merely at the whims of one of the parties to the contract.

(2) 2009 CLD 1340 (Light Industries (Pvt.) Ltd. v. M/s.ZSK Strickmaschinen Gmbh). Suit of plaintiff was stayed on the ground that there existed an exclusive foreign jurisdiction clause in the agreement. Covenants in the agreement and the contract had addressed the controversy as the same were not contrary to the public policy nor contravened the provisions laid down in Section 28 Contract Act, 1872 nor the same violated procedural law. In view of relevant clause of the agreement, contractual relations being subject to foreign law and both the parties having agreed to fulfill all obligations of the contract in foreign Court having exclusive jurisdiction, there was no ambiguity in the mind of contracting party.

(3) 1987 SCMR 393 (State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem) Two or more Courts having jurisdiction to try a suit. Agreement between parties, that any dispute arising between them shall be tried only by one of such Courts, held, could not be considered contrary to public policy as it would neither contravene provisions laid down in Section 28; Contract Act, 1872, nor violate in any manner provisions of Section 9 or Section 20 of CPC.

(4) 2002 CLD 1528 [CGM (Compagnie General Maritime) v. Hussain Akbar]. Choice was between Tribunal in Paris or Pakistan. Dispute would be governed by law of France on the basis of jurisdiction clause. French Tribunal would be less inconvenient and better place to decide the dispute under French law. Sanctity of contract had to be maintained and enforced.

(5) 2012 SCC 9 (Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd.). Unless there is "strong cause" to displace the forum that the parties have agreed should resolve their dispute, order and fairness are better achieved when parties are held to their bargains. Here, the motion judge did not err in the exercise of her discretion to dismiss the action under Rule 21.01(3)(a) of the Ontario Rules of Civil Procedure, based upon the foreign forum selection clause.

(6) [2003] 1 S.C.R, 450, 2003 SCC 27 (Z.I. Pompey Industries v. ECU-Line N.V). On an application for a stay to uphold a forum selection clause in a bill of lading, a Court must not delve into whether one party has deviated from or fundamentally breached an otherwise validly formed contract. Such inquiries would render forum selection clauses illusory since most disputes will involve allegations which, if proved, will make the agreement terminable or voidable by the aggrieved party. Issues respecting an alleged fundamental breach of contract or deviation therefrom should generally be determined under the law and by the Court chosen by the parties in the bill of lading.

(7) 407 U.S. 1 (92 S.C. 1907, 32 L.Ed.2d 513 (M/s.Bremen and Unterweser Reederei, GmBH, v. Zapata Off-Shore Company). This approach is substantially that followed in other common law countries including England. It is the view advanced by noted scholars and that adopted by the Restatement of the Conflict of Laws. It accords with ancient concepts of freedom of contract and reflects an appreciation of the expanding horizons of American contractors who seek businessmen in all parts of the world. The choice of that forum was made in an arm's length negotiation by experienced and sophisticated businessmen, and absent some compelling and countervailing reason it should be honoured by the parties and enforced by the Courts. The argument that such clauses are improper because they tend to `oust' a Court of jurisdiction is hardly more than a vestigial legal fiction. The threshold question is whether that Court should have exercised its jurisdiction to do more than give effect to the legitimate expectations of the parties, manifested in their freely negotiated agreement, by specifically enforcing the forum clause.

(8) [1990] 3 Supreme Court Cases 481 (British India Steam Navigation Co, Ltd. v. Shanmughavilas Cashew Industries & others). The parties to a contract in international trade or commerce may agree in advance on the forum which is to have jurisdiction to determine disputes which may arise between them. The express choice of law made by parties obviates need for interpretation. The chosen Court may be a Court in the country of one or both the parties, or it may be a neutral forum. The jurisdiction clause may provide for a submission to the Courts of a particular country, or to a Court identified by a formula in a printed standard form, such as a bill of lading referring disputes to the Courts of the carrier's principal place of business.

(9) High Court of New Delhi, I.A. Nos.820/2012 & 3347/2012 in CS(OS) No. 115/2012. (Pantaloon Retail (India) Ltd. v. Amer Sports Malaysia SDN BHD & ANR). Where jurisdiction of a Court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusive or non-exclusive jurisdiction of the Court of choice of the parties are not determinative but are relevant factors and when a question arises as to the nature of jurisdiction agreed to between the parties the Court, has to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case. In the present case, Malaysian Court has sufficient nexus and proximity to the dispute in hand as the defendant carries on business in Malaysia, the agreement was partly executed in Malaysia and the said Malaysian Court cannot be said to be the one which is forum against the public policy or arbitrary in nature. Furthermore, as the presumption of law goes, it cannot be said that the parties were oblivious to their relative convenience or inconvenience at the time of entering into the contract and therefore, the mere financial inconvenience or expense is no ground for the parties to dispense with from their contractual obligations. Accordingly, the parties must hold their bargain and there are no strong reasons for exercising any further residual discretion in favour of the plaintiff.

(10) AIR 2003 S.C. 1177 (Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd.). It is a well settled principle that by agreement the parties cannot confer jurisdiction where none exists on a Court to which, C.P.C. applies, but this principle does not apply when the parties agree to submit to the exclusive or non-exclusive jurisdiction of a foreign Court. Thus, it is clear that the parties to a contract may agree to have their disputes resoled by a Foreign Court termed as a neutral Court' orCourt of choice' creating exclusive or non-exclusive jurisdiction in it.

1. On the other hand, the learned counsel for the plaintiff argued that the plaintiff acquired the legal and vested right hence, the service agreement was unlawfully terminated under the garb of placing of plaintiff's name on the list maintained by the Bureau of industry and Security U.S. Department of Commerce. It was contended that the defendant unilaterally and unlawfully terminated the service agreement. On 15.2.2012 the defendant sent an e-mail to the plaintiff in which it was averred that due to listing of plaintiff on the US Entity List, they terminated the service agreement. The plaintiff replied the e-mail but no positive response was received. Due to unlawful termination of plaintiff's service agreement the plaintiff is suffering loss of reputation as they were doing the business of billions of dollars with US, NATO, ISAF and U.K. Forces and other European countries dealing in domestic logistic. Learned counsel argued that Ms.Tahira Hassan was not duly appointed attorney of the defendant who has only notarized power of attorney in her favour. He also referred to an affidavit of Mr. Maurice Courvoisier, who is a practicing attorney, having expertise on international litigation and arbitration and all areas of civil and commercial law. Learned counsel argued that the opinion extended by the said counsel has no legal sanctity regarding the service of the process on the defendant. Learned counsel further argued that once the notice was received by the defendant and they made their arrangement and also engaged local counsel, this amounts to surrendering to the jurisdiction of this Court hence no plea can be taken by the defendant that they were not properly served. Learned counsel pointed out his statement dated 7.12.2012 attached with few e-mails to show that the defendant refused to release the commission of the plaintiff on account of present litigation, while on the other hand the defendant's counsel argued that this Court has no jurisdiction to entertain the suit in view of forum selection clause mentioned in the service agreement itself. Learned counsel further invited my attention to another statement dated 5.12.2012 with which he attached certificate of SECP dated 3.2.2009 issued by company Registration Office Lahore. The certificate was issued in the matter of Panalpina World Transport Ltd. Learned counsel argued that this very acknowledgement of filing return shows that the defendant is registered in Pakistan. Another e-mail attached with this statement shows that the plaintiff's name was deleted from the U.S. entity list by the U.S. Department of Commerce.

2. Learned counsel further pointed out appendix "A" of service agreement in which the defendant has been defined as `PAM' being representative of its affiliated companies, which has been defined as each a "Panalpina Affiliate" and collectively the "Panalpina Affiliates". Learned counsel also pointed out the earlier agreement between the same parties executed on 15.1.1999 in which also it was provided that for the purposes of arbitration the disputes shall be settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce Paris (ICC Publication No. 350) by one or more arbitrators. Swiss law shall be applicable and the place of arbitration would be the city of Basle /Switzerland. He further referred to the termination letter dated 15.2.2012 and argued that since this termination letter was received at Karachi hence this Court has jurisdiction. He further referred to form 43 of the Companies Ordinance, 1984, which is a Return to show the address of the principal place of business in Pakistan of a foreign company or of any change therein. In this form also the name of company is Panalpina World Transport Ltd. having its business at Chappal Plaza, Hasrat Mohani Road, Karachi. He has also pointed out the company profile and organizational set-up of the Panalpina World Transport (Holding) Ltd. The document says that Panalpina World Transport (Holding) Ltd. (PWT) is the ultimate holding company of the Panalpina Group, which is the only listed company within the scope of consolidation. The learned counsel argued that there are various associated undertakings of the defendant's company and all are defined collectively as Panalpina Group and one of the affiliated companies Panalpina World Transport Ltd. is existing in Pakistan, which is manifestly reflecting from the SECP documents, therefore, as one and the part of same group the defendant can be sued within the territorial limits and jurisdiction of this Court notwithstanding the specific forum selection clause.

3. Learned counsel also referred to definition of associated companies provided under Section 2 (2) of the Companies Ordinance, 1984, which defines that associated undertakings means any two or more companies or undertakings, or a company and an undertaking, interconnected with each other. In the same sequence, he further referred to Section 3 of the Companies Ordinance, 1984, which envisions the meaning of subsidiary and holding company and makes emphasis that for the purposes of Ordinance a company or body corporate shall be deemed to be a subsidiary of another that other company or body corporate directly or indirectly controls, beneficially owns or holds more than fifty per cent of its voting securities or otherwise has power to elect and appoint more than fifty per cent of its directors. Though the learned counsel challenged the termination of service agreement and also relied upon the same terms and conditions of the agreement but for the purposes of challenging the termination notice he vigorously argued that despite forum selection clause this Court has jurisdiction to entertain and decide the present suit, keeping in view the well presence of the defendant through its affiliated companies and their offices in Pakistan including Karachi. In support of his arguments he relied upon the following case law:--

(1) 1999 YLR 2162 (Sunshine Corporation (Pvt.) Ltd. & others v. M/s. E.D.Du Pont De Nemours & Co. & others). Provisions of Sections 16, 17 & 20 of, C.P.C. Applicability. Some of the defendants were not residents in Pakistan, nor did they carry any business in Pakistan. Where Contracts between parties were acted upon locally, cause of action had arisen within the jurisdiction of High Court. Provision of Section 120, C.P.C. was to enhance the jurisdiction instead of curtailment.

(2) PLD 2010 Karachi 274 (Digital World Pakistan (Pvt.) Ltd. v. Samsung Gulf Electronics FZE & another). Provisions contained in Sections 16, 17 and 20, C.P.C. would not apply to High Court in exercise of its original civil jurisdiction principles. The Court in whose jurisdiction the cause of action has arisen has jurisdiction to entertain suit, irrespective of the residence of defendants. Where two Courts may have jurisdiction in respect of the same claim, then it is the prerogative of the plaintiff that weighs more in determining the place of suing.

(3) 2002 SCMR 1694 (Societe Generate De Surveillance S.A. v, Pakistan through Secretary, Ministry of Finance). Sections 20 and 34. Constitution of Pakistan (1973) Article 185(3). Leave to appeal was granted by the Supreme Court to consider, inter alia, the points as to whether the arbitration agreement between the parties was binding upon them notwithstanding the coming into force of the Bilateral Investment Treaty.

(4) 2007 YLR 21 (Aziz Bibi & others v. Aijaz Ali & others). Sections 16, 17, 20, 120 and Order VII Rule 10. For the purpose of determining the application under Order VII Rule 10, CPC, contents of the plaint were to be taken on their face value. When the contents of the plaint spelt out that part of cause of action for filing the suit accrued at place "K" and some of defendants at the time of filing of the suit were residents of place "K" for the purpose of deciding jurisdiction, the facts pleaded in the plaint were sufficient.

(5) 2009 CLC 637 (Muhammad Aslam Mnotiwala v. M/s. Quice Food Industries). Question of territorial jurisdiction would be decided on basis of case set up by plaintiff and not on basis of defence set up by defendant. Court at place "K" held, was competent to entertain and decide such suit.

(6) 2010 CLC 1810 (A.R. Khan & Sons v. Federation of Pakistan & others). Article 199., CPC and Section 20, C.P.C., Territorial jurisdiction of High Court. Person or authority by whose act petitioner aggrieved, if was within territorial limits of High Court or otherwise amenable to its jurisdiction, then such petition would be maintainable. When more than one High Court had jurisdiction in a matter, then aggrieved party could choose any Court for initiating proceedings.

(7) PLD 1961 (W.P.) Karachi 14 (M/s. Husain Bros. v. Punjab Vegetable & General Mills Co.). The suit on a breach of contract can be filed at any place where the contract should have been performed in whole or in part. Such a suit can be filed at the place where the communication of the cancellation of the contract reaches the plaintiff.

(8) 1989 CLC 1259. (M/s.Saif Nadeem Kawasaki Motors v. Faisalabad Development Authority). Appellant entered into a contract with respondent at F. Respondent revoked contract. Appellant filed suit at L for damages. Plaint returned for presentation before Court at F. Plea that rescission of contract was part of contract and that revocation of contract was communicated at L. Held that Court at L had also territorial jurisdiction to try suit.

(9) 2012 CLC 507 (Riaz Ahmed v. Habib Bank Limited). Original civil jurisdiction of High Court. Scope. Customer of bank filed suit against bank at place "K" before High Court where head office of the bank was situated. Plea raised by defendant-bank was that the concerned branch was located at place "P" in another province, therefore, the suit should be returned for filing the same before appropriate Court. Original civil jurisdiction of High Court must also be regarded as extending to the situation where the defendant ordinarily resided, or worked for gain, at place "K". If a corporation had its principal office or head office at place "K", High Court at "K" would also have jurisdiction, and the same was regardless of whether the cause of action had accrued at place "K" or not.

(10) 1990 CLC 645 (Ziauddin Siddiqui v. Mrs.Rana Sultana & another). Power of attorney in order to raise and sustain presumption, under Article 95, Qanun-e-Shahadat, 1984 of its execution before and authentication by inter alia, a Pakistan Counsel or Vice Counsel has to be so executed or authenticated. In order to qualify for presumption under Pakistan Law, the exercise is required to have been gone into at the Pakistan Embassy in the relevant country.

(11) 2010 YLR 616 (Abdul Syed & another v. Mian Muhammad Attique & another). Major discrepancies existed in execution of General Power of Attorney which executed in United Kingdom without observing the legal or codal formalities of Municipal Law practiced there. Said power of attorney had not been endorsed properly nor was signed by the Court or Vice-Counsel as required under Article 95 of Qanun-e-Shahadat, 1984. Such power of attorney was legally ineffective.

1. Heard the arguments. To start with I would like to refer to relevant excerpts from Dicey, Morris and Collins on "The Conflict of Laws" (Fifteenth Edition) as under:--

Jurisdiction and choice of law. The questions that arise in conflict of laws cases are of two main types: first, has the English Court, jurisdiction to determine this case? And secondly, if so, what law should it apply? There may sometimes be a third question, namely, will the English Court recognize or enforce a foreign judgment purporting to determine the issue between the parties? Of course this third question arises only if there is a foreign judgment, and thus not in every case. But the first two questions arise in every case with foreign elements, through the answer to one of them may be so obvious that the Court is in effect only concerned with the other. The law of every modern country has rules dealing with these questions, called conflict of laws in contrast to its domestic or internal law.

Justification. What justification is there for the existence of the conflict of law? Why should we depart from the rules of our own law and apply those of another system? This is a vital matter on which it is necessary to be clear before we proceed any further. The main justification for the conflict of laws is that it implements the reasonable and legitimate expectations of the parties to a transaction or an occurrence. This can best be seen by considering what would happen if the conflict of laws did not exist.

Forum non conveniens. The doctrine of Forum non conveniens, i.e. that some other forum is more "appropriate" in the sense of more suitable for the ends of justice, was developed by the Scottish Courts in the 19th century, and was adopted (with some modifications) in the United States. The Scots rule is that the Court may decline to exercise jurisdiction, after giving consideration to the interests of the parties and the requirements of justice, on the ground that the case cannot be suitably tried in the Scottish Court nor full justice be done there, but only in another Court. In England, forum conveniens was always a relevant factor in the exercise of the discretion to grant permission to serve out of the jurisdiction under what is now Rule 6.36 of the Civil Procedure Rules, i.e. Rule 34, but until 1984 the English Courts refused to accept that the jurisdiction to stay actions commenced against defendants who were sued in English as of right could be based on forum non-conveniens grounds.

Scope and reach of jurisdiction clause. In cases in which there is no dispute as to the validity of a jurisdiction clause, the principal question is likely to be to determine that the dispute in question falls within the material scope of the clause, or the within the jurisdiction clause ratione materiae. As the common law regards these clauses as ordinary contractual terms the question is one of construction and interpretation. In principle, where it is a matter of dispute, the construction and interpretation of a jurisdiction clause is a matter to be referred to the law which governs the jurisdiction clause, which will usually be the law governing the contract of which it forms a part, albeit a separable part.......

Legal effect of valid jurisdiction clause. As a general rule, but subject to important exceptions, English Courts (in common with the Courts of other countries) will give effect to a choice of jurisdiction. If the English Court is the chose forum, the jurisdiction clause will be effective to confer jurisdiction on the English Court; in certain circumstances, the Court will have discretion not to exercise it. If a foreign Court is the chosen forum, then the English Court will give effect to the choice by staying proceedings brought in breach of the jurisdiction clause or by refusing to give permission to serve process outside the jurisdiction; but (except in cases within the scope of Article 23 of the Regulation or the Convention) the English Court has a discretion to override the choice of jurisdiction.

1. The term "Forum non conveniens." is defined in Black's Law Dictionary (Sixth Edition) as under:--

"Forum non conveniens. Term refers to discretionary power of Court to decline jurisdiction when convenience of parties and ends of justice would be better served if action were brought and tried in another forum, Johnson v. Spider Staging Corp. 87 Wash.2d 577, 555 P.2d 997, 999, 1000 See 28 U.S.C.A. & 1404.

The rule is an equitable on embracing the discretionary power of a Court to decline to exercise jurisdiction which it has over a Transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere. Leet v. Union Pac. R. Co., 25 Cal.2d 605, 155 P.2d 42, 44. The doctrine presupposes at least two forums in which the defendant is amenable to process and furnishes criteria for choice between such forums. Wilson v. Seas Shipping Co., D.C.pa., 78 F.Supp. 464, 465. In determining whether doctrine should be applied, Court should consider relative case of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of view of premises, and all other practical problems that make trial easy, expeditious and inexpensive. Di Lella v. Lehigh Val. R.Co. D.C.N.Y., 7 F.R.D. 192, 193".

1. It is an admitted position that the plaintiff has filed this suit on the basis of service agreement which was illegally terminated by the defendant as alleged in the plaint. It is also manifesting from the documents of agreement that under clause 22 a mechanism has been provided for the dispute resolution in the applicable law. It has not been pleaded by the plaintiff that agreement in question was signed under any duress, force or coercion rather than the plaintiff itself approached and invoked the jurisdiction of this Court on the strength of this agreement and challenge cancellation letter. In the dispute resolution clause the parties have mutually bargained and entered into conclusive agreement with certain modalities that in case of dispute or claim arising out of the agreement and or in case of breach of it the same shall be discussed and settled amicably in good faith. It is also agreed between the parties that if they will be unable to resolve the dispute within thirty days after written notice shall be submitted to the exclusive jurisdiction of the competent Courts of the city of Basel, Switzerland.

2. In order to avoid intricacies of law and or conflict of law principles it was further agreed that the agreement shall be governed and interpreted in accordance with laws of Switzerland. The clause 22.4 provides a rider that breach of provisions Sections 17 and 18 of the agreement would cause the non-breaching party to suffer irreparable damage that could not be adequately remedied by an action at law, therefore, in addition to monetary damages and other legal remedies it was left open for the party to obtain equitable and injunctive relief without showing or proving any actual damages sustained by the non-breaching party, in any competent jurisdiction notwithstanding Section 22.2 and 22.3. Section 17 of the agreement relates to the intellectual property rights while Section 18 is the clause related to confidentially, which is just sort of a NDA (non-discloser agreement.) clause. The plaintiff has not filed the suit complaining the breach of Section 17 or 18 of the agreement which might have afforded the sole discretion to the plaintiff to institute the proceedings being non-breaching party of Section 17 or 18 of the agreement.

3. At this juncture, I would also like to discuss the doctrine of "Forum non conveniens". From the averments of plaint it is explicit and obvious that the plaintiff has nowhere pleaded the above doctrine which might have given any cause of action for filing the suit in this jurisdiction notwithstanding the explicit clause relating to the forum selection. The doctrine of Forum non conveniens means that some other forum is more "appropriate" in the sense of more suitable for the ends of justice. In the case in hand there is no dispute regarding the validity of the jurisdiction clause which cannot be ignored lightly at the whims of one party to the contract. In the case of Light Industries (Pvt.) Ltd., the order passed by the learned judge of his Court was affirmed in the HCA. In the similar circumstances there was an exclusive jurisdiction clause in which the learned single Judge as well as the appellate forum both held that the suit of the plaintiff was liable to be stayed on the ground of an exclusive foreign jurisdiction clause in the agreement and covenants in the agreement did not contravene Section 28 of the Contract Act. The hon'ble Supreme Court in the case of State Life Insurance Corporation of Pakistan dilated upon Section 28 of the Contract Act and held that two or more Courts having jurisdiction to try a suit. Agreement between the parties that the dispute shall be tried only by one or such Courts could not be considered contrary to public policy as it would neither contravene provisions laid down in Section 28, Contract Act, 1872, nor violate in any manner provisions of Section 9 or Section 20 of CPC. In the case of Compagnie General Maritime., the Court held that French Tribunal would be less inconvenient and better place to decide the dispute under the French law. Choice was between Tribunal in Paris or Pakistan. It was held that dispute would be governed by law of France on the basis of jurisdiction clause. Law of France on the subject would have to be proved by production of expert witnesses in Karachi, which would entail additional expense and inconvenience. French Tribunal would be less inconvenient and better place to decide the dispute under French law. While the case of Momentous.ca Corp. the Court held that order and fairness are better achieved when parties are held to their bargains. In the Z.I. Pompey Industries emphasis was made that the Court must not delve whether one party has deviated from or fundamentally breached an otherwise validly formed contract. Such inquiries would render forum selection clauses illusory. I am also in agreement with the finding rendered in M/s.Bremen and Unterweser Reederei, GmBH case in which it was held that the choice of forum selection clause was made in an arm's length negotiation by experienced and sophisticated businessmen, and absent some compelling and countervailing reason it should be honoured by the parties and enforced by the Courts. The argument that such clause are improper because they tend to `oust' a Court of jurisdiction is hardly more than a vestigial legal fiction. Again in the case of British India Steam Navigation Co. Ltd. it was held that the parties to a contract; in international trade or commerce may agree in advance on the forum which is to have jurisdiction to determine disputes which may arise between them. Even in the case of Pantaloon Retail (India) Ltd. the high Court of New Dehli held the same that the parties must hold their bargain and there are no strong reasons for exercising any further residual discretion in favour of the plaintiff.

4. Learned counsel for the plaintiff focused his arguments not on plea of forum non conveniens but his line of argument was that though the agreement was executed with Panalpina Management Ltd. but its affiliated company are in existence in Pakistan. Another argument was that the termination letter was received at Karachi hence this Court has jurisdiction. He further referred to From-43 of the Companies Ordinance, 1984 which shows that one of the alleged affiliated company of the defendant is operating its business in the city of Karachi, Pakistan. He further pointed out the defendant's company profile to show that Panalpina World Transport (Holding) Ltd. is the ultimate holding company of Panalpina group which is the only registered company within scope of consolidation. He went on to argue that there are various associated undertakings of the defendant's company which are collectively defined as Panalpina group which gives rise to initiate action against the defendant in our jurisdiction. In order to strengthen the arguments learned counsel for the plaintiff referred to the definition of associated undertakings and subsidiary and holding company. In my view it is not the case of plaintiff that existing one or more associated undertakings or the affiliated companies/undertakings of the defendant is responsible to honour the agreement of its one of the associated companies but in order to assume the jurisdiction this Court has to see the terms of commercial bargain reached between the parties. The plaintiff entered into agreement with Panalpina Management Ltd. which company terminated the agreement and this agreement has nothing to do with any associated company of the defendant including Panalpina World Transport (Holding) Ltd., which may be the ultimate holding company of the group. For determining forum selection clause the Court has to consider only the parties which entered into bargain. Even for the sake of arguments, if I hold that the defendant may have its one or more associated or affiliated companies registered in Pakistan, this sole reason alone would not give any cause of action to the plaintiff to get rid of or override the forum selection clause. Mere existence of an alleged affiliated company does not vanish and or override either the forum selection clause or the choice of law mutually agreed in the form of a concluded contract between the parties.

5. Now I would like to discuss the precedent of the superior Courts quoted by the learned counsel for the plaintiff to strengthen his arguments. He referred to the case of Sunshine Corporation (supra) in which mostly the learned Single Judge of this Court discussed Sections 16, 17, 20 & 120 of CPC. In this case some of the defendants were not residents in Pakistan nor did they carry any business in Pakistan. It was observed that the defendant failed to prove lack of jurisdiction on the ground of their residence abroad, doctrine of forum convenience could not be applied. The Court also observed that the case of Zapata Off-Shore Company cannot be applied in view of the waiver inferable from the order dated 26.6.1998. This case is distinguishable in which the forum selection clause was not said to be applicable for the reasons that some waiver was made by the defendant by their act and conduct, which is not available in the case in hand. The case of Digital World Pakistan is also distinguishable in which the same provision of, CPC were discussed as referred to in the case of Sunshine Corporation. In the case of Societe Generale (supra) the hon'ble Supreme Court granted leave to appeal to consider as to whether the arbitration agreement between the parties was binding upon them notwithstanding the coming into force of the Bilateral Investment Treaty, which is not the case here. In the cases of Aziz Bibi and Muhammad Aslam Mnotiwala (supra) the learned Court discussed Section 20 vis-a-vis Order VII Rule 10, CPC and held that the question of territorial jurisdiction would be decided on the basis of case set up by the plaintiff and not on the basis of defence set up by the defendant. Again I would like to observe here that both cases do not have any relevancy regarding the choice of forum clause or the "Forum non conveniens". The case of A.R. Khan & Sons pertains to Article 199 of the constitution of Pakistan which has no relevancy. The cases of M/s. Husain Bros. and M/s. Saif Nadeem Kawasaki Motors are also distinguishable as in that cases the issue pertain to the institution of suit on a breach of contractual obligation where no forum selection clause was involved. In the case of Riaz Ahmed again only Sections 16, 17, 20, 120 & Order VII Rule 10, CPC were discussed and held that if a corporation had it principal office at place "K", High Court, at "K" would also have jurisdiction regardless of whether cause of action at place at "K" or not. Again this case is also distinguishable. The cases of Ziauddin Siddiqui and Abdul Sattar (Supra) are related to Article 95 of the Qanun e-Shahadat Order, 1984. Learned counsel for the plaintiff objected that Tahera Hasan, Advocate is not properly constituted special attorney of the defendant. The board's resolution of the defendant's company dated 16.4.2012 is available on record by virtue of which Ms.Tahera Hasan was appointed special attorney. The document of special power of attorney is also available on record, which was attested by Christine Boldi, Basler Notarin. Article 95 of Qanun-e-Shahadat Order, 1984 is referable to the presumption as to power of attorney and envisages that the Court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by, a notary public, or any Court, judge, magistrate, Pakistan Consul or Vice-Consul, or representative of the Federal Government was so executed and authenticated.

6. In this case I am of the view that the indenture of power of attorney was attested by the notary public hence, it is properly authenticated. Under Order VII Rule 10, CPC the Court can return the plaint at any stage of the suit with the direction to present to the Court in which the suit should have been instituted and while returning of plaint the judge shall endorse thereon the date of its presentation and return with a brief statement of the reasons of returning it. In this case neither the plaint can be returned nor rejected keeping in view the forum selection clause and naturally when parties had agreed to resolve their dispute by a particular Court then mere returning of plaint would not serve any purpose as the same cannot be presented as it is by the plaintiff in the Court at Basel, Switzerland was while filing the case in that jurisdiction the plaintiff has to follow the laws of that particular country for setting the law into motion. The clause in the agreement with regard to exclusive or non-exclusive jurisdiction of the Court of choice is not determinative but is most crucial factor and when question arises as to the nature of jurisdiction agreed to between the parties, the Court has to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case. Court should also consider relative case of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of view of premises, and all other practical problems that make trial easy, expeditious and inexpensive. In the present case the Court at Switzerland has sufficient nexus and proximity to the dispute in hand and the defendant carries on business in Switzerland. Forum selection clause cannot be held against the public policy or arbitrary in nature as the presumption of law is that the parties were oblivious to their relative convenience or inconvenience at the time entering into a contract. There are no strong reasons for exercising any discretion in favour of the plaintiff. So in my view the proper course is to stay the proceedings in this suit.

7. For the foregoing reasons, C.M.A No. 3741/2012 is allowed to the extent that the proceedings in the suit are stayed, however, it is open to the plaintiff to institute proper proceedings for adjudication of its claim before the competent Courts in the city of Basel, Switzerland. Since the proceedings have been stayed, CMA No. 2787/2012 moved under Order XXXIX Rules 1 and 2, C.P.C. has become infructuous. Both applications are disposed of.

(R.A.) Applications disposed of

PLJ 2014 Karachi 90 (DB)

Present: Muhammad AliMazhar and Sadiq Hussain Bhatti, JJ.

IMRAN AHMED--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior & 2 others--Respondents

C.P. No. D-3190 of 2011, decided on 11.12.2013.

Government Servants (Marriage with Foreign Nationals) Rules, 1962--

----R. 3--Government Servants (Efficiency & Discipline) Rules, 1973, R. 2--Pakistan Citizenship Act, 1957, S. 15--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Marriage with a citizen of foreign national (India) without getting prior permission of Govt.--Direction to issue NOC--No mala fide intention and mens rea--Validity--No objection certificate was required to be obtained before marrying a foreign national but in instant case petitioner had explained difficulties and exigency under which force of circumstances be contracted marriage with a foreign national before obtaining NOC though he had already submitted an application for grant of NOC for marrying that there was no mala fide intention and mens rea on part of petitioner in marrying a foreign national--Grant of permission was at discretion of Federal Govt.--Requisite permission shall be granted to petitioner in accordance with law so that he might be able to apply for further proceedings under Pakistan Citizenship Act. [Pp. 94, 95 & 96] A, E & H

Government Servants (Marriage with Foreign Nationals) Rules, 1962--

----R. 3--Government Servants (Efficiency and Discipline Rules, 1973--Scope of--Marriage is prohibited with foreign national--Married with getting requisite permission--Guilty of miscondition--Non-applying NOC prior marriage--Not only show cause notice was issued but also recommended--Validity--Permission or NOC is need to be applied prior entering into a marriage contract and violation or contravention of Rule 3 makes the) person liable to face disciplinary proceedings and such lapse on part of any such person, tantamount to a misconduct and he may be tried and penalised under Government Servant: (Efficiency and Discipline) Rules, 1973--Non-applying NOC prior marriage of entering into marriage prior NOC may be misconduct on part of a delinquent but it does not invalidate or declare marriage void or voidable--If NOC is not applied or granted, citizenship will never be granted to spouse of any Pakistani citizen who contracted marriage with a foreign national or Indian national--Three children from same wedlock were by birth citizens of Pakistan but case of their mother for citizenship was pending since 2005 without any logical conclusion and she had to apply for extension of visa after every three months despite lapse of considerable time of her marriage with a Pakistan citizen/national which was causing mental agony and constant fear and anxiety not only to her but to entire family. [Pp. 94 & 95] B & C

Constitution ofPakistan, 1973--

----Arts. 9 & 13--Government Servants (Marriage with Foreign Nationals) Rules, 1962, S. 3--Protection against double punishment and self incrimination--Maxim--Nemo debet bis vexari pro una et eadem causa--Non grant of NOC for marriage with foreign nationals amounts to double jeopardy--Validity--A man shall not be twice vexed for one and same cause.) common law principle of auture fois acquit (formerly acquitted) and auture fois convict (formerly convicted) means that no one shall be punished or put in peril twice for same offence--Petitioner had already been punished and non-grant of NOC amounts to double jeopardy--Art. 9, of Constitution provides in clear terms that no person shall be deprived of life or liberty save in accordance with law while under Art. 35, it is responsibility of state to protect marriage, family, mother and child--Right to marry is a constitutional right in terms of Arts. 9 & 13 of Constitution. [Pp. 95 & 96] D & F

Pakistan Citizenship Act, 1951--

----S. 15--Pakistan Citizenship Rules 1952, R. 20--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Procedure for acquisition of Pakistan by Commonwealth citizenship--According to Section 15 of Pakistan Citizenship Act 1951, every person becoming a citizen of Pakistan shall have status of a commonwealth citizen which means that Indian national has status of commonwealth citizen--Rule 20 of Pakistan Citizenship Rules, 1952 correspondently provides procedure for acquisition of Pakistan, citizenship by commonwealth citizens and in that regard, application may be submitted to Pakistan Mission or Consulate in that country but if applicant is at time of application resident in Pakistan, he shall apply to Federal Government. [P. 96] G

Mr.Qadir Hussain Khan, Advocate for Petitioner.

Mr.Asif Mangi, Advocate for Respondent.

Date of hearing: 11.12.2013.

Order

Muhammad Ali Mazhar, J.--The petitioner has filed this Constitutional Petition with the prayer to direct the respondents to issue no objection certificate (NOC) to the petitioner and also direct the Respondent No. 2 to issue certificate which would enable the petitioner to manage the PRC and Domicile for his wife under the Pakistan Citizenship Act, 1953.

1. The learned counsel for the petitioner argued that the petitioner is performing duties of Sorter in B-7 in the Pakistan Post. On 9.1.2006, he submitted an application to the Deputy Postmaster General, Pakistan Post Office, Karachi in which he referred to his earlier application which was moved by him for grant of NOC on 5.9.2005 to marry his cousin, a foreign national, (Indian national) but the NOC was not accorded to him well within time. He further stated in the said application that his uncle suddenly fallen seriously ill and, therefore, his relatives arranged his marriage ceremony on 6th September, 2005 keeping in view the exigency and predicament. He again requested for NOC. It was further averred that the matter is pending since 2005 meanwhile, the petitioner again applied for the NOC to the same authority on 10.9.2008 which was also not acceded to. Copies of the applications moved for NOC, marriage certificate/nikahnama are attached with the petition.

2. It is also a matter of record that on 3.6.2009, a show-cause notice was issued by Divisional Superintendent to the petitioner in which it was stated that the petitioner applied for the permission to marry with an Indian girl directly to the Director General, Pakistan Post on 15.9.2005 and thereafter submitted another application through proper channel on 9.1.2006 for the same purpose but without getting the requisite permission/NOC, he got married with a foreign national on 15.2.2006 and by adopting such practice, he is guilty of misconduct by contravening the provisions of Government Servants (Marriage with Foreign Nationals) Rules, 1962 as he married with a citizen of India without getting prior permission of the Government.

3. The show-cause notice was issued under the Removal From Service (Special Powers) Ordinance, 2000, with the directions to the petitioner to submit his reply. The petitioner submitted his reply to the show-cause notice and after examining the case and affording an opportunity of personal hearing, the Inquiry Officer concluded that the petitioner has failed to defend himself, hence he recommended to the competent authority for reduction of petitioner's pay to the minimum in his time scale for six months without future effect. However, vide order dated 25.8.2010, issued by the Divisional Superintendent after completion of the specified period the pay of the petitioner was restored in B-7. In the same letter it was mentioned that the petitioner has submitted an application for up-gradation of his post from B-7 to B-9, hence his this request was also forwarded for necessary guidance and orders.

4. The Respondent Nos.2 and 3 filed their comments. The learned Standing Counsel argued that the petitioner married an Indian lady without obtaining prior permission. However, he admitted that the petitioner sent an application for NOC directly to the Director General Pakistan Post Islamabad without informing his unit officer D.S., MST. He referred to the comments in which it is stated that Pakistan Post is attached Department of Ministry of Communication therefore, the Director General Pakistan Post sent the case of the NOC of the petitioner to the Ministry of Communication for onwards submission to Establishment Division, later the Director General Pakistan Post addressed a letter on 7.8.2008 to the Post Master General Sindh Circle Karachi and intimated that the Ministry of Communication informed after inquiring the matter through I.B. that the said marriage for which NOC was required had already taken place on 6.11.2005. He further argued that since petitioner married prior NOC hence he was issued a show-cause notice and penalty for reduction of pay for six months was imposed on him without future effect.

5. We have analyzed the Government Servants (Marriage with Foreign Nationals) Rule, 1962. The relevant Rule (3) is reproduced as under:--

"3. Marriage with foreign nationals prohibited.--(1) Subject to the Provisions of sub-rule (2), a Government servant who marries or promises to marry a foreign national shall be guilty of misconduct and render himself liable to any of the major penalties under the Government Servants (Efficiency and Discipline) Rules, 1973.

(2) A Government servant, may, with the prior permission of the Federal Government, marry or promise to many a [foreign national of any country recognized by Federal Government)].

(3) The grant of permission under sub-rule (2) shall be at the discretion of the Federal Government and may be subject to such conditions, if any, as it may specify".

1. Though under Rule 3 (supra) it is provided that Government servants who marries a foreign national shall be guilty of misconduct and render himself liable to any of the major penalties under the Government Servants (Efficiency and Discipline) Rules, 1973. However, in sub-rule (2) it is provided that a Government servant with the prior permission of the Federal Government may marry to a foreign national. It is further noted that under sub-rule (3) of Rule 3 of the Rules, 1962 the grant of permission is at the discretion of Federal Government which may be subject to such condition, if any, as it may specify.

2. There is no doubt that the rules are clear that NOC was required to be obtained before marrying a foreign national but in this case the petitioner has explained the difficulties and the exigency under which force of circumstances, he contracted marriage with a foreign national before obtaining the NOC though he had already submitted an application for grant of NOC for marrying which shows that there was no mala fide intention and mens rea on the part of the petitioner in marrying a foreign national. It is also a fact that he has already been issued a show-cause notice which culminated in the penalty. At present, the petitioner and his wife and their three children are facing serious hardship and they are under constant threat and duress as the petitioner has to apply for visa extension of his wife to the immigration authorities after every 03 three months but till date the petitioner has not been conveyed any clear response to the application as to whether NOC will be granted to him or not and the entire family is facing uncertainty and fear on account of this inaction on the part of the respondents.

3. There is no doubt that Rule 3 of the Government Servants (Marriage with Foreign Nationals) Rules, 1962, envisages that permission or NOC is need to be applied prior entering into a marriage contract and violation or contravention of this rule makes the person liable to face the disciplinary proceedings and this lapse on the part of any such person, tantamount to a misconduct and he may be tried and penalised under the Government Servant (Efficiency and Discipline) Rules, 1973 but fact remains that non-applying the NOC prior marriage or entering into marriage prior NOC may be a misconduct on the part of a delinquent but it does not invalidate or declare the marriage void or voidable. The delinquent may be visited with penalty which has been done precisely in this case. Not only a show-cause notice was issued but the inquiry officer also recommended penal action against the petitioner and he has already served out that punishment. Under the rules it is nowhere mentioned that if NOC is not applied or granted, the citizenship will never be granted to the spouse of any Pakistani citizen who contracted marriage with a foreign national or Indian national. Three children from the same wedlock are by birth citizens of Pakistan but the case of their mother for citizenship is pending since 2005 without any logical conclusion and she has to apply for extension of visa after every three months despite lapse of considerable time of her marriage with a Pakistan citizen/national which is causing mental agony and constant fear and anxiety not only to her but to entire family. Unless, the case is properly processed and or recommended by the Respondent 2 and 3, further proceedings cannot be initiated and concluded under the Pakistan Citizenship Act.

4. Under Article 13 of the Constitution of Pakistan, protection against double punishment and self-incrimination is provided which embodies the provision of the maxim Nemo debet bis vexari pro una et eadem causa. (It is a rule of law that a man shall not be twice vexed for one and the same cause.) The common law principle of auture fois acquit (formerly acquitted) and auture fois convict (formerly convicted) means that no one shall be punished or put in peril twice for the same offence. In the case in hand, the petitioner has already been punished and non-grant of NOC amounts to double jeopardy. Had the petitioner dismissed from service even then the matrimonial ties could not be declared void or abrogated. This a purely a matter of procedure which does not put down an embargo or complete prohibition against the marriage with a foreign national under the Citizenship Act, 1951 or Muslim Family Law Ordinance, 1961. However, it is clear that for obtaining nationality in the above circumstances, one has to apply for citizenship in accordance with the law and fulfill all requisite formalities. Even under the aforesaid rules, the grant of permission is at the discretion of Federal Government subject to such conditions as it may specify.

5. Article 9 of the Constitution of Pakistan provides in clear terms that no person shall be deprived of life or liberty save in accordance with law while under Article 35, it is the responsibility of State to protect the marriage, the family, the mother and the child. Right to marry is a constitutional right in terms of aforesaid article of the Constitution. In the judgment reported in PLD 2012 SC. 1, (All Pakistan Newspaper Society vs. Federation of Pakistan), the apex Court while reiterating the landmark judgment rendered in the case of Shehla Zia and other dictums, again endorsed the view that the word life used in Article 9 of the Constitution is very significant as it covers all facets of human existence, Life includes all such amenities and facilities which a person born in free country is entitled to enjoy with dignity, legally and constitutionally. Further the right to life also includes the right to livelihood. What happened in this case which is between four Pakistan nationals and one foreign/Indian national lady that after every three months visa is being extended which is virtually a sword of Damocles as the effect of visa refusal amounts to deporting the wife of petitioner from Pakistan and if it is done, three minor children will be deprived from the love and affection of their real mother and the petitioner will lose the consortium which would lead to serious violation and contravention of the fundamental rights of the petitioner and his three by birth Pakistan citizen and the entire family will also suffer.

6. According to Section 15 of the Pakistan Citizenship Act, 1951, it is clearly explicated that every person becoming a citizen of Pakistan shall have the status of a Commonwealth citizen which means that Indian national has the status of commonwealth citizen. Rule 20 of the Pakistan Citizenship Rules, 1952 correspondently provides the procedure for acquisition of Pakistan citizenship by commonwealth citizens and in this regard, the application may be submitted to the Pakistan Mission or Consulate in that country but if the applicant is at the time of application resident in Pakistan, he shall apply to the Federal Government.

7. As a result of above discussion, the Director General, Pakistan Post, is directed to forward the case of the petitioner to the Ministry of Communication for onward transmission to the Ministry of Secretary, Establishment Division for further processing of the case of the petitioner and after completing all the codal formalities and verification of antecedents and credentials, the requisite permission shall be granted to the petitioner in accordance with law so that he may be able to apply for further proceedings under the Pakistan Citizenship Act, 1951. This exercise should be completed within a period of two months.

(R.A.) Order accordingly

PLJ 2014 Karachi 97 (DB)

Present: Muhammad AliMazhar & Farooq Ali Channa, JJ.

MUHAMMAD HUSSAIN & another--Petitioners

versus

PROVINCE OF SINDH through Home Secretary & 4 others--Respondents

C.P. No. D-1505 of 2013, decided on 10.9.2013.

Constitution ofPakistan, 1973--

----Art. 199--Calendar of Board of Secondary Education Karachi (Examination Rules & Procedures)--Volume-III--R. 2 (iv)--Educational institution--Admit cards for annual examination could not be issued due to failure to submit examination form--Challenge to--Students had paid examination fee and deposited forms but amount was misappropriated--If students were not accommodated they well suffer loss of one year--Validity--It is also an admitted fact that all students had paid their fee, therefore, in larger public interest and to save at least one year of students for which they had no fault by their own it would be appropriate to allow students to appear in supplementary examination on their own will as according to petitioners at that stage that was only appropriate remedy which can be availed by students otherwise they will have to wait for next annual examination by which they will lose at least one year of their academic career. [P. 100] A

Educational Institution--

----Discretionary power--Function of Court is to do substantial justice--Question of--Whether board should exercise discretionary powers in favour of students--Validity--Discretionary powers are given under law to exercise it fairly, justly and to advance cause of justice--Non exercise of discretionary powers in a legitimate cases which require expediency in favour of subject or withholding such discretionary powers without any rhyme or reason will tantamount to repudiation and negation of powers conferred upon an authority to meet a particular situation which was beyond control of party seeking relief through discretionary powers. [P. 100] B & C

Educational Institution--

----Student could not get admit cards inspite of deposited examination fee with forms--Amount was misappropriated by employee of school--Claimed benefit of Rule 2(iv) of (Examination and Procedure Rules) for appearance in supplementary examination--Validity--Students cannot be penalized and even if person is prosecuted or punished, their loss of one year academic career cannot be compensated or returned back to them--Any order or directions passed by High Court instant petition will be treated directions in rem to an extent of lists of student submitted by petitioners and they will also be equally benefited if they want to appear in examination--Petition was disposed of with directions to consider case of students sympathetically and Chairman and Board after examining credentials will allow students to appear in supplementary examination for year 2013. [P. 101] D, E & F

Mr.Javed Iqbal Barqi, Advocate for Petitioners.

Syed Masroor Ahmed Alvi, Advocate for Respondent No. 2.

Mr.Manzoor Ali, Advocate for Respondent No. 3.

Mr. MuhammadWaseem Sammo, A.A.G. for Respondent.

Date of hearing: 10.9.2013.

Order

Muhammad Ali Mazhar J.--The petitioners have brought this Constitutional Petition for seeking following relief(s):

"It is very humbly and respectfully prayed to this Honourable Court that this Honourable Court may kindly pass an order directing the Respondent No. 2 to immediately issue Provisional Admit Cards to the students of Respondent No. 3 and allow the children/students to appear in the examination of Class-IX & X for the year 2013 and also arrange date for the papers which had already been taken.

It is further prayed that this Honourable Court kindly be pleased to direct all the respondents to coordinate with each other in accordance with law so the such situation may be avoided in future."

1. The brief facts of the case are that the petitioners along with other so many students are studying in Bright Public School, Singo Lane, Lyari. All the students deposited their annual examination fee and submitted their forms to the Respondent No. 3 for onward submission to the Respondent No. 2. On 6th April, 2013, it revealed that Respondent No. 3 failed to submit the examination forms in the office of Respondent No. 2 and in consequence thereof admit cards for annual examination could not be issued to the students of Respondent No. 3.

2. The notice of this petition was issued to the respondents. Respondent No. 3 submitted his comments in which it is stated that he hired services of one Abdul Karim who was deputed to submit forms of the students along with their registration and examination fee in the Board of Secondary Education Karachi but he misappropriated the entire fee amount and absconded. On 23rd April, 2013, F.I.R. No. 35/2013 against him was also lodged at P.S. Chakiwara under Section 406, P.P.C. At present, the accused Abdul Karim is on bail. The principal of Bright Public School, Mr. Rizwan Ghulam Nabi is present along with his counsel and he has shown his full agreement and willingness that if his students are allowed to participate in the supplementary examination, he will deposit the entire examination fee and forms of the students from school funds.

3. We have also examined the earlier orders passed by this Court. The order dated 12th April, 2013 passed by another learned Division Bench shows that the Board was directed to consider all such students as a special case for the forthcoming supplementary examination and the matter was adjourned with direction to assist the learned counsel on the next date. The order dated 23rd August, 2013 shows that another learned Division Bench of this Court directed the petitioners to submit complete list of students for further consideration. In pursuance of said order, on 30th August, 2013, the learned counsel for the petitioners filed two lists of students along with a statements i.e one for Class-X, girls students in which 44 students are shown while another list for the Class-X shows 35 boys students which makes total 79 numbers of students. Since the matter is of an urgent nature, and last date of submission of form is 19.9,2013, hence all learned counsel agreed that petition may be heard today and disposed of at katcha peshi stage.

4. The learned counsel for the petitioners argued that all students paid the examination fee and deposited the forms but the amount was misappropriated. It was further contended that under the rules, the board may allow the students to appear in the supplementary examination if for some reasons they could not appear in the annual examination. It was further averred that if the students are not accommodated they will be seriously prejudiced and not only they will suffer loss of one year but their future will be also on stake.

5. The learned counsel for the Respondent No. 2 argued that Chapter-XI of the Calendar of the Board of Secondary Education Karachi, Volume-III (Examination Rules & Procedures) pertains to the supplementary examination. He further pointed out Rule-2 which permits the appearance in the supplementary examination only in four circumstances. He also argued that the petitioners are at fault, as the last date of submission of enrolment forms was 31st August, 2012 whereas last date for submission of examination form was 31st January, 2013 and the board of Secondary Education Karachi also issued press notification dated 3rd December, 2012 for the submission of Class-X forms which was in fact an extension of date for submission of examination forms up to 8th March, 2013. He further argued that students were denied the appearance in the annual examination due to negligent and reckless conduct of the Respondent No. 3 for which the Board cannot be blamed and if any indulgence is shown to the petitioners, it will result in opening flood gate to litigation by other students and will create a precedent.

6. We have carefully gone through the Chapter-XI of the Calendar of the Board of Secondary Education Karachi, Volume-III (Examination Rules & Procedures). In our view in order to meet any exigency and as a special circumstance, the mandate has been conferred upon the Board or to the Chairman in anticipation of Board's approval which can be exercised to cater the force of circumstances. For ready reference, Sub-Rule-IV of Rule-2 is reproduced as under:--

"All such candidates, who though not confirming to the conditions set out above are specially permitted by the Board or by the Chairman in anticipation of Board's approval."

1. Since the person appointed by the Respondent No. 3 for onward submission of fee and forms has misappropriated the fees amount and it is also an admitted fact that all the students have paid their fee therefore in the larger public interest and to save at least one year of the students for which they have no fault by their own it would be appropriate to allow the students to appear in the supplementary examination on their own will as according to the learned counsel for the petitioners at this stage this is the only appropriate remedy which can be availed by the students otherwise they will have to wait for the next annual examination by which they will lose at least one year of their academic career.

2. The function of the Court is to do substantial justice between the parties keeping aside the intricacies and or technicalities. In the case in hand, the bone of contention is whether the board should exercise their discretionary powers in favour of students on the backing of Sub-Rule (iv) or not?. The discretionary powers are given under the law to exercise it fairly, justly and to advance the cause of justice. In the judgment reported in 1993 PLC 673, the honorable Supreme Court quoted the words of Scar man L.J that "excessive use of lawful power is itself unlawful". Drawing a strength from the above quotation, we feel no hesitation to hold it conversely that non exercise of discretionary powers in a legitimate cases which require expediency in favour of subject or withholding the such discretionary powers without any rhyme or reason will tantamount to repudiation and negation of powers conferred upon an authority to meet a particular situation which was beyond the control of party seeking relief through the discretionary powers. Nothing has been said by the Respondent No. 2 substantial in their reply as to why the petitioner may not be allowed to sit in the supplementary examination except that it will open a flood gate to litigation by other students which is not a satisfactory reply in our view. In the case in hand, the parents of large numbers of students paid/deposited examination fee with forms with the firm hope and assurance that their children will appear in the examination but it is quite unfortunate that their amount was misappropriated by the employee of school. On the face of it, the students cannot be penalized and even if the person is prosecuted or punished, their loss of one year academic career cannot be compensated or returned back to them. The Sub-rule (iv) is in fact providing an ample space to accommodate an untoward situation and the circumstances relating to force majeure as in this case also, the things were beyond the control of students or their parents. At the same time we are also mindful and fully cognizant to the fact that the powers provided under Rule-iv are meant to apply only in the special circumstances and therefore if any order is passed allowing the petitioners or other students of the Respondent No. 3 to appear in the supplementary examination, this will not be treated as precedent and in future, each case will be decided on its own facts. Though we are conscious of the fact that before us there are only two petitioners but in the previous order, the learned bench of this Court has already called upon the petitioners to submit a complete list which they have submitted duly certified by the Respondent No. 3. Since the petitioners have claimed benefit of Sub-rule (iv) for appearance of their son and daughter in the supplementary examination, therefore, we are of the firm view that any order or directions passed by us in this petition will be treated directions in rem to an extent of the lists of student submitted by the petitioners and they will also be equally benefited if they want to appear in the examination.

3. In the wake of above discussion, this petition is disposed of with the directions to the Respondent No. 2 & 5 to consider case of the students of Bright Public School, Singo Lane, Lyari sympathetically and the Chairman and the Board after examining credentials will allow the students mentioned in both the lists to appear in the supplementary examination for the year 2013 keeping in view sub-rule (iv), of Rule 2 of Chapter-XI of the Calendar of the Board of Secondary Education Karachi, Volume-III (Examination Rules & Procedures). The Respondent No. 3 will collect the supplementary forms within three days from the Board office and within next four days he will deposit the forms in the Board office along with requisite documents and examination fee including the late fee if any. The compliance report shall be submitted by the Respondent No. 2 and 3 through Member Inspection Team-II of this Court within ten days without any fail.

(R.A.) Petition disposed of

PLJ 2014 Karachi 102

Present: Muhammad Ali Mazhar, J

MEDIA MAX (PVT.) LTD.,KARACHI through Chief Executive--Plaintiff

versus

ARY COMMUNICATION (PVT.) LTD.,KARACHI through Chief Executive and another--Defendants

Suits Nos.115, 124 and 165 of 2012, decided on 26.6.2013.

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

----O. XXXIX, Rr. 1, 2 & 4--Stay order--Powers of Court to amend or set aside such order--Scope--Court has ample powers to discharge, vary or set aside the injunction order and even where subsequent to passing of the injunctive order, some development took place and new circumstances emerged requiring consideration, Court might in appropriate cases vary, modify or even discharge the injunction order. [P. 121] A

2004 MLD 1820; 1988 CLC 230 and 1982 CLC 2242 ref.

Interpretation of Statutes--

----Illustrations attached with a section of statute--Scope--Illustrations would not be read as extending the meaning of a section, they should also not be read as restricting its operation, especially so when the effect would be to curtail a right which the plain words of the section would confer. [Pp. 121 & 122] B

43 IA 256; (1916) 2 AC 575 and AIR 1938 PC 67 rel.

Contract Act, 1872 (IX of 1872)--

----S. 202--Agent's authority coupled with an interest in subject matter of agency, determination of--Essential factors--Where an agreement is entered into on a sufficient consideration whereby an authority is given for the purpose of securing some benefit to donee of such authority, such an authority is irrevocable--Interest of the agent in the subject of the agency may be inferred from the language of the document creating the agency, and from the course of dealings between the parties--Interest which an agent has in effecting a sale and the prospect of remuneration to arise therefrom do not constitute such an interest as would prevent the termination of the agency--Prospect of earning a commission is not an interest for that purpose--Where the agent has only to get commission after the accrual of the net collection, he cannot prima facie be said to have any interest--Where the authority is given for the purpose of being a security or as a part of security, and not to cases where the authority is given independently and the interest of the donee of the authority arises afterwards and incidentally only--As for instance, the goods are consigned to a factor for sale--Afterwards the factor makes advances--This is not an authority coupled with an interest, but an independent authority and interest subsequently arising. [Pp. 122 & 123] C

PLD 2010 Kar. 213; 2007 YLR 590; PLD 2009 Kar. 288; PLD 2007 Kar. 278; PLD 2011 Kar. 362; 2006 MLD 367; PLD 1986 Kar. 234; 2004 SCMR 1092; PLD 2004 SC 860; 2005 CLD 1805; 2005 SCMR 1408; PLD 1989 Kar. 499 and 1999 YLR 1529 ref.

Contempt of Court--

----Charge of--Duty of Court--Issue of contempt of Court is a serious issue, which is always a matter between the Court and alleged contemnor, but before framing issue or charge, it is incumbent upon Court to first examine the matter whether any prima facie case of contempt is made or not, which warrants on merits issuance of show cause or framing of issue or charge. [P. 125] D

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

----O. XL, R. I--Receiver of property, appointment of--Object of such appointment and duty of Court--Object and purpose of the appointment of receiver may generally be stated to be the preservation of the subject matter of the litigation pending judicial determination of the rights of the parties--Appointment of receiver is an act of Court and made in the interest of justice--Order is discretionary and the discretion must be exercised in accordance with the principles on which judicial discretion is exercised--Terms "just and convenient" used in O.XL, R.I, C.P.C. does not mean arbitrary whim or pleasure of the Court--Appointment of receiver deprives a person from enjoyment of the property, therefore, it has been regarded as harsh remedy. [P. 126] E

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

----O. XL, R. I & O. XXXIX, Rr, 1, 2--"Appointment of Receiver" and "granting of temporary injunction" in a case--Distinction--Distinction between a case in which temporary injunction may be granted and a case in which a Receiver may be appointed is that while in either case it must be shown that property should be preserved from waste and alienation--If it be shown that plaintiff in the suit has a fair question to raise as to the existence of the right alleged, while in the latter case a good prima facie title to the property over which the Receiver is sought to be appointed as to be made out--Receiver cannot be appointed unless there is some substantial background for such interference that the property in suit dissipated or other irreparable mischief may be done, unless the Court appoints a Receiver. [P. 126] F

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

----O. VII, R. 11(d)--Rejection of plaint for being barred by law--Material essential to be considered by Court--Only contents of the plaint may be looked into without any extraneous consideration, and even the Court may not see the written statement/affidavits, filed by the defendants--Court has to confine itself only to averments made in the plaint and has to take the contents thereof to be true and cannot go beyond the same--Court finds the plaint to be barred by law, the Court can reject the plaint, but cannot do so by resolving the contested facts--Relief claimed by the plaintiff was barred under any provision of law or a suit on. the basis of it was incompetent. [P. 128] G

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

----O.VII, R. 11(d)--Rejection of plaint--Court cannot take into consideration the pleas raised by defendants in the suit in his defence as at that the pleas raised by defendants are only contentions in the proceedings unsupported by any evidence on record. [P. 129] I

2010 CLC 1603; 2010 CLC 1968 and 2011 CLC 88 rel.

Civil Procedure Code, 1908 (V of1908)--

----O. VII, R. 11(a)--Rejection of plaint for non-disclosing cause of action--Scope--Facts constituting a cause of action must co-exist, thus, any of such facts missing in plaint would render suit as incompetent--Right to seek relief on basis of alleged cause of action must be in existence at time of institution, of suit--Lack or weakness of proof would not justify rejection of plaint for want of cause of action--Words "cause of action" means bundle of facts " which if traversed, a suitor claiming relief is required to prove for obtaining judgment--Nevertheless, it does not mean that even one such fact, a constituent of cause of action is in existence, the claim can succeed--Totality of the facts must co-exist, and if anything is wanting the claim would become incompetent--Not only should the party seeking relief have a cause of action, when the transaction or the alleged act is done, but also at the time of the institution of the claim--A suitor is required to show that not only a right has been infringed in a manner to entitle him to a relief, but also that when he approached the Court, the right to seek the relief was in existence--Lack of proof or weakness of proof in circumstances of the case did not furnish justification for coming to conclusion that there was no cause of action shown in the plaint. [P. 129] H

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

----S. 2(2), O. XII, R.6, O. XX, Rr.12 to 16, 18 & O.XXXIV, Rr.2 to 5, 7 & 8--"Preliminary decree", "final decree" and "judgment/decree on basis of admissions in pleadings"--Distinction--A preliminary decree declares the rights and obligations of the parties leaving further matters to be determined in subsequent proceedings--Such decrees are normally determinative of controversies of a fundamental nature--C.P.C. provides and vests in the Court to pass preliminary decrees under Order XX, Rules 12 to 16 and 18 and under Order XXXIV, Rules 2 to 5 and 7 and 8--A preliminary decree and a final decree are both distinct and independent entities--According to the Explanation attached to section 2(2), C.P.C, a decree is preliminary when further proceedings have to be taken in the suit and the suit has not been completely disposed of--Party may apply for a judgment on admission without waiting for the determination of any other question between the parties and decree can be drawn up in respect of the portion of the admitted claim. [P. 130] J

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

----O.XII, R. 12--Passing of judgment on basis of admissions in pleadings--Duty of Court--Order XII, Rule 6, C.P.C. enables a Court upon application by either party to dispose of the suit with regard to which there is no dispute between the parties--Entire plaint or written statement is required to be read for the purposes of finding out the nature of admission--Admission must be clear, specific, unambiguous, definite and categorical and Court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission. [Pp. 130 & 131] K

PLD 2004 SC 860; 2005 CLD 1805; 2005 SCMR 1408; PLD 1989 Kar. 499; 1999 YLR 1529 and 2012 CLD 1380 ref.

2008 CLC 645; 2007 SCMR 433; PLD 2003 Kar. 253; 1996 SCMR 696; 2013 CLC 535 and 2007 SCMR 1933 rel.

M/s. Abid S. Zuberi and Haseeb Jamali, Advocates for Plaintiff (in Suits Nos. 115 and 165 of 2012 and for the Defendant in Suits No. 124 of 2012).

M/s. Anwar Mansoor Khan, Asim Mansoor and Muhammad Ali Talpur, Advocates for Defendants (in Suits Nos. 115 and 165 of 2012 and for Plaintiff (in Suit No. 124 of 2012).

Dates of hearing: 2, 23.1, 12.2 & 15.3.2013.

Order

This common order will dispose of various applications filed in the three suits. The gist of plaint and applications are as follows:--

1. This suit has been filed by Media Max (Pvt.) Ltd. against ARY Communication Ltd. and ARY Digital, FZ LLC for declaration and permanent injunctions. The crux of the matter is that on 1-7-2001, the Defendant No. 2 entered into a contract with the plaintiff to exclusively provide sponsorship and advertisement for the satellite T.V. Channel ARY Digital. In this case a declaration has been sought that e-mail dated 29-1-2012 and the oral termination of the airtime contract dated 30-1-2012 communicated to the market is illegal and have no legal effect.

2. The injunction application (CMA. No. 923 of 2012) was fixed in this Court on 31-1-2012 when M/s. Bashir Ahmed Khan and Mobeen Lakho, advocates appeared for defendants and undertook to file their Vakalatnama. Both the learned counsel categorically stated in the Court that Annexure "A" which is an agreement dated 1-7-2001 has not been terminated. On this statement the counsel for the plaintiff shown his satisfaction, consequently the injunction application was disposed of. Now in this case following application is pending.

CMA No. 1063/2012. In this application, the Defendant No. 2 has prayed that agreement contained an arbitration clause, hence arbitrator be appointed.

Suit No. 124 of 2012

ARY Communication (Pvt.) Ltd. v. Media Max (Pvt.) Ltd.

1. This suit has been filed by ARY Communication Ltd. "against Media Max (Pvt) Ltd. for declaration, permanent injunction, rendition of accounts and damages. In this suit the plaintiff has sought the declaration that upon termination of agency, defendant (Media Max (Pvt.) Ltd) cannot represent the plaintiff for obtaining any business. Injunction was also sought against the defendant not to represent as agent or representative of plaintiff. Besides, claiming huge damages, the plaintiff has also sought further declaration that agreements entered into by the defendant (Media Max (Pvt.) Ltd) representing themselves ARY or ARY Digital are based on misrepresentation

2. The injunction application CMA. No. 1046 of 2012 was fixed in this Court for orders on 3-2-2012. Learned counsel for the plaintiff argued that on 2-2-2012 the plaintiff terminated the agency agreement, therefore, the defendant be restrained from representing as an agent of plaintiffs and receiving amount in their name directly from the clients. It was further argued that plaintiff has no intention whatsoever to terminate the agreement entered into by the defendant with various clients on behalf of plaintiff but only wanted to ensure that sale proceeds/receipts are given directly to the plaintiffs. On this contention notice was issued to the defendant and till then the defendant was restrained to represent as an agent of the plaintiffs nor would receive any amount directly in their names nor would interfere in the business of the plaintiffs. In this suit, following applications are pending:--

(1) C.M.A. No. 4803/2012: The defendant has filed this application under Order XXXIX, Rule 4, C.P.C. for vacating order dated 3-2-2012.

(2) C.M.A. No. 1046/2012: The plaintiff has prayed that defendant be restrained to act as agent of plaintiff.

(3) C.M.A. No. 1685/2012: The plaintiff claims that the C.E.O of defendant has violated the Court's orders dated 3-2-2012.

(4) C.M.A. No. 1047/2012: The plaintiff wants appointment of receiver to attach the accounts of the defendant.

(5) C.M.A. No. 3292/2012: The plaintiff wants appointment of Chartered Accountant to audit the business undertaken by the defendant as agent of the plaintiff since 2001 till date.

(6) C.M.A. No. 6232/2012: The plaintiff has prayed that the defendant be directed to give full and complete disclosure, statement of accounts and bank statement.

(7) C.M.A. No. 2204/2012: The defendant claims that alleged contemnors have misinterpreted the order dated 3-2-2012.

(8) Nazir's report dated 24-12-2012: He submitted that the plaintiff in compliance of order dated 23-2-2012 deposited Rs. 15,22,86,741/-. The report is taken on record.

Suit No. 165 of 2012

Media Max (Pvt.) Ltd. v. ARY Communication (Pvt.) Ltd.

1. The plaintiff (Media Max (Pvt) Ltd.) has filed this suit for declaration, recovery, mandatory and permanent injunction against ARY Communication Ltd. and ARY Digital, FZ LLC. The plaintiff has sought the declaration that relationship of principal and agent is governed by the contract dated 1-7-2001. The agency is coupled with interest and third party contracts are protected under Section 204 of the Contract Act hence the defendant cannot revoke the contract and the plaintiff is entitled to 15% agency commission. Further declaration has been sought that the termination of agency is unlawful and in violation of natural justice.

2. On 13-2-2012 when the injunction application (C.M.A. 1352 of 2012) and others applications (at Sr. Nos. 3 to 5) were fixed first time for orders Mr. Asim Mansoor, advocate appeared and waived the notice. Learned single Judge jotted down the submissions and by consent it was ordered that the Defendant No. 1 on receipt of amount from third party in respect of third party agreements entered into between plaintiff and the third party shall retain 85% of such amount and 15% of such recovery will be deposited with the Nazir of this Court. On the same date it was further ordered that the Suit Nos. 115 and 124 of 2012 shall also be fixed together on the next date. Now following applications are pending in this suit.

(1) Nazir's report dated 20-3-2012: Nazir submitted that ARY Communication has deposited Rs.70,68,976/-. The report is taken on record.

(2) C.M.A. No. 9667/2012: The plaintiff claims that the directors of the defendant have violated the Court's orders dated 7-5-2012.

(3) C.M.A. No. 7012/2012: It is an unsigned application and the contention raised are similar to C.M.A. No. 9667/2012 hence it is dismissed.

(4) C.M.A. No. 4817/2012: The plaintiff has prayed for the release of amount deposited by the Defendant No. l with the Nazir.

(5) C.M.A No. 1352/12: The plaintiff has prayed that defendants be restrained from collecting any revenue in terms of third party contracts.

(6) C.M.A. No. 1353/2012: The plaintiff has prayed for appointment of Nazir to manage accounts in relation to sale and marketing of airtime in respect of third party contracts.

(7) C.M.A. No. 1354/2012: The plaintiff has prayed that the Defendant No. 1 be directed to deposit the amount of Rs.89,922,341/- as the Defendant No. 1 has made a clear unequivocal, unambiguous and unqualified admission.

(8) C.M.A. No. 1355/2012: The plaintiff has filed this application under Order XII, Rule 6, C.P.C. and prayed that preliminary decree may be passed to the extent of Rs.89,922,341/-.

(9) C.M.A. No. 1684/2012: The Defendant No. 1 claims that alleged contemnors have violated the order dated 13.2.2012.

(10) C.M.A. No. 2206/2012: The plaintiff has filed this application for restraining order against the defendants from collecting any payments from third parties.

(11) C.M.A. No. 2207/2012: The plaintiff has prayed for the appointment of Commissioner to inspect the defendant's accounts.

(12) C.M.A. No. 2208/2012: The plaintiff has filed this application against the alleged contemnors who have committed contempt of order dated 13-2-2012.

(13) C.M.A. No. 6234/2012: The Defendant No. 1 wants recalling/reviewing the order dated 6-6-2012.

(14) C.M.A. No. 5910/2012: The plaintiff prays that the bank accounts and liquid assets of the defendants be attached/freezed.

(15) C.M.A. No. 6235/2012: The Defendant No. 1 wants that the order dated 13-2-2012 may be set aside or modified/altered.

(16) C.M.A. No. 3360/2012: The Defendant No. 1 has filed this application under Order VII, Rule 11, C.P.C. for rejection of plaint.

1. Mr.Anwar Mansoor Khan, learned counsel for the ARY Communications Ltd. and ARY Digital FZ LLC argued that the Plaintiff ARY communications was established as a private limited company in 2002 which was converted into a public limited company. Media Max was incorporated on 24-8-2001, which is a marketing company and was non-exclusively engaged, on terms and conditions contained in various correspondences, without a formal agreement, on casual basis for marketing and sale of airtime of ARY/ARY Digital.

2. It was further contended that ARY Digital FZ LLC, had executed an agreement on 1-7-2001 with Media Max for selling airtime for the promotion of ARY Digital, a Satellite TV Channel. By a letter dated 6-10-2005, ARY informed Media Max that the billing was to be transferred from Media Max to ARY from January 1, 2006. Media Max vide letter dated 17-10-2005 acknowledged the said letter to transfer billing from them to ARY. On 25-5-2006, a letter was written by ARY in which it was stated that the invoices would be on ARY Communication Limited's letterhead and amount received against these invoices would be deposited in Standard Chartered Bank.

3. He further argued that the agreement dated 1-7-2001 actually came to an end and the new relationship was created between parties where after a new agreement was required to be entered into. The draft agreement was sent by ARY to Media Max in September 2006 which was not accepted. Media Max modified various clauses and specially the provisions of Clause 12 which stipulated the duration and termination of the agreement. The said modification was not acceptable to ARY hence various negotiations took place but no formal agreement could be signed. The informal relation, which was governed by various letters and instructions, however continued. The relationship between the ARY and Media Max was very cordial and though targets were given in relation to various channels, but there was no specific pricing policy agreed and discussed. Media Max without reference to ARY, and without information continued to unilaterally negotiate the price of airtime and raising/generating invoices in the name of ARY Communication Limited. Media Max with mala fide intention, refused to provide details of the accounts to the ARY and continued to syphon off money.

4. It was further averred that the Media Max filed a Suit No. 115 of 2012 on 31-1-2012, against ARY and ARY Digital FZ, LLC basing its claim on the agreement dated 1st July 2001 which were entered into between ARY Digital FZ, LLC and Media Max. At that point in time ARY Digital had not terminated the agreement hence the counsel said that they had not terminated any agreement and this Court passed an Order dated 31-1-2012, disposing off the injunction application on the basis of above statement. The Media Max was incorporated in August, 2001 and the date of submission of incorporation documents is given as 24-8-2001, which is almost 2 months after the date of the said Agreement which shows that Media Max was not in existence at the time of signing of the Agreement hence no reliance can be placed on the said agreement.

5. It was further contended that on account of serious fraud and misrepresentation and causing loss to ARY, a legal notice was served on 2-2-2012 and the oral arrangement as to the casual agency was terminated. Whilst ARY was negotiating with Media Max to give accounts of the previous years, Media Max gone into the market and started to the take advances against the moneys payable to ARY. The money thus taken by fraud is liable to be accounted for and after proper determination/audit through a qualified Chartered Accountant, be returned and or adjusted accordingly.

6. It was further contended that Media Max was never a part of ARY as both are two distinct Companies. Any such impression could not be assigned to the relationship which was of casual nature. In the Suit No. 115 of 2012, Media Max only disclosed five contracts but later on, in the Suit No. 165 of 2012, the same company came up with fabricated documents, claiming them to be the agreements entered into on behalf of the ARY. It was further averred that Media Max highlighted that ARY admitted an amount of Rs.89 million as outstanding in favour of Media Max. The learned counsel denied this assertion and pointed out Rejoinder to the CMA. 1046 of 2012 and argued that the said amount even if could be said to be an admission, the said document is dated 19.12.2011 showing a balance as on 30-6-2011, whereafter there has and continued a number of transactions, as such a previous transactional, statement could not be deemed to be an admission on the date of the suit or commencement of litigation.

7. So far as the contempt applications filed by Media Max against ARY and its directors is concerned, the learned counsel argued that ARY has made all payments as directed by this Court with the Nazir but Media Max in order to pressurize ARY and its management and to extract undue benefits resorted to file contempt applications one after another. In compliance of the orders passed by this Court, ARY has deposited all the amounts as directed. The final determination of any amounts due could only be made after the evidence has been led. He further argued that Media Max after termination of agency, resorted to raising allegations against the ARY regarding sending fraudulent emails which allegations are denied. Media Max has submitted a fabricated email relating to the confirmation of the amounts which was merely for the purposes of accounting only. It is submitted that the documents/emails submitted by the Media Max available at pages from 2049 to 2053 in Part 2 of Suit 165 of 2012 (i.e. Rejoinder in C.M.A. 1352 of 2012) are questionable as they have been received from unverified sources and are fabricated and concocted. He referred to following case in point:

8. 2004 MLD 1820 - Muhammad Qasim v. Tahir Saleem and another. The Court had ample powers under Order XXXIX Rule 4, C.P.C. to discharge, vary or set aside injunctive order. It can be exercised keeping in view the circumstances of each case.

9. 1988 CLC 230 - Muhammad Inam v. Dr.Muhammad Safdar. Trial Court has got power under Order XXXIX, Rule 4, C.P.C. to amend or to discharge, vary or set aside order of injunction.

10. 1982 CLC 2242 - Sindh Madrasatul Islam Board Society v. Shamim. When injunction is made without notice to the opposite party the remedy for an ex parte temporary injunction is provided in Rule 4 of Order XXXIX C.P.C.

11. PLD 2010 Karachi 213 - Raja Abdul Hameed v. Shehri-CBE. When some development takes place having material bearing on substantive rights and interest of parties, the Courts do not sit with eyes closed to such change, may in appropriate cases vary, modify or even discharge the injunctive order. Ref: 2001 SCMR 279.

12. 2007 YLR 590 - Abdul Habib Rajwani v. M/s. Brothers Industries Ltd. Pre-existing interest of the agent in the subject-matter of the agency. The concept has been well illustrated at page 2036 of Halsbury's Law of England, IVth Edn, Volume-I.

"868. Authority coupled with interest.--Where the agency is created by deed, or for valuable consideration, and the authority is given to effectuate security or to security or to secure the interest of the agent, the authority cannot be revoked. Thus, if an agreement is entered into on a sufficient consideration whereby an authority is given for the purpose of securing some benefit to the donee of the authority, the authority is irrevocable on the ground that it is coupled with an interest. So, an authority to sell in consideration of forbearance to sue for previous advance, an authority to apply for share to be allotted on an underwriting agreement a commission being paid for the underwriting, and an authority to receive rents until the principal and interest of a loan have been paid off or to receive money from a third party in payment of a debt, have been held to be irrevocable. On the other hand, an authority is not irrevocable merely because the agent has a special property in or a lien upon goods to which the authority relates, the authority not being given for the purpose of securing the claims of the agent.

1. PLD 2009 Karachi 288 - Cooper & Co. (Pvt) Ltd. v. Laurel Navigation (Mauritius) Ltd. The principal admittedly has authority to terminate the authority of an agent in the following circumstances:--

(i) by the principal revoking his authority;

(ii) by the agent renouncing the business of the agency;

(iii) by the business of the agency being completed;

(iv) by either the principal or agent dying or becoming of unsound mind;

(v) by either the principal or agent being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors;

(vi) by expiry of the period agency, if any;

(vii) by the destruction of a material part of the subject matter of the agency;

(viii) the happening of any event which renders the agency unlawful or upon the happening of which, it is agreed between the principal and the agent that the authority shall determine; or

(ix) by dissolution of the principal, where the principal is a firm or a company or other corporation.

Thus there could be no cavil to the proposition that the principal has always ample power to rescind, revoke or alter the authority of agent provided any one or more of afore-stated conditions are available to the principal to amend, alter, rescind, vary or cancel the authority of the agent: Prof. SC Srivastava, in his book Law of Agency, III Edition at page 757 while discussing the nature of authority of the agent coupled with the interest, has observed, as under:--

"Where the agent's authority is by deed, or for valuable consideration, or for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of any, such security or interest. This is known as agency coupled with interest. But it is not irrevocable merely because the agent has an interest in the exercise of it."

1. PLD 2007 Karachi 278 - M/s. Time N Visions International (Pvt) Ltd. v. Dubai Islamic Bank Pakistan Ltd. A contract of agency by its very nature is personal to the parties and revocable at their volition subject to agreed terms. It does not create eternal legal relations.

2. PLD 2011 Karachi 362 - M/s. Fospak (Private) Ltd. v. Fosroc International Ltd. For Section 202 to apply, the following three conditions must be fulfilled; (a) there must be an agency; (b) the subject matter of the agency must be some property; and (c) the agent must himself have an interest in such property. Thus, for Section 202 to apply. In the two illustrations to Section 202, the basis of the agent's interest in the property is the debt owed to him by the principal. This basis existed independently of the agency contract, and would exist even if there were no agency contract. Ref: Dalchand v. Seth Hazarimal and others AIR 1932 Nagpur 34, and the earlier Bombay case of Vishnucharya v. Ramchandra (1881) 5 Bom. 253.

3. 2006 MLD 367 - M/s. Al-Mumtaz Agencies v. Millat Tractors Ltd. It is settled principle of law that if a principal makes a premature revocation, the agent can only claim damages as per law laid down in Frith v. Frith (1906) AC 254. Agency is dependent upon the confidence and trust which the principal has in his agent, the principal can revoke the agency at his will, once this confidence is shaken. Lamb and Sons v. Goring Brick Coy, Ltd. (1932) 1 KB 710.

4. PLD 1986 Karachi 234 - M/s. World Wide Trading Co. v. Sanyo Electric Trading Co. Mere investment does ring no bell unless the interest which is allegedly involved fulfils the condition that it forms part of the subject-matter of the contract as provided in Section 202 of the Contract Act. To my mind, the two statutory illustrations given at the end of Section 202 contemplate that the interest of the agent, forming subject matter of the agency, is to be some sort of an adverse nature qua the principal.

5. 2004 SCMR 1092 - Puri Terminal Ltd. v. Government of Pakistan. No doubt an injunction is a form of equitable relief. It is pertinent to note that the petitioner irrespective of seeking declaration, permanent injunction, compensation also claimed damages as an alternative relief. By claiming damages as an alternative relief, the petitioner seemed to be not confident about the grant of other relief.

6. On the other hand, Mr.Abid Zuberi, the learned counsel for Media Max argued that since 2001 under Agreement dated 1-7-2001, Media Max worked as exclusive agent for sale of Air time and Sponsorship of ARY Digital Channel, firstly and later on as exclusive Agent on same terms and conditions for M/s ARY Communications Limited. Since inception of the business relationship, there is not a single complaint or allegation raised against the business conducted by Media Max and accounts were shared and reconciled on regular basis. Till 28-1-2012 there was no business issues and dispute arose only when Email dated 28-1-2012 was issued by ARY whereby they attempted to introduce a new team to deal sale of air time and sponsorship of ARY Digital Channel which led to filing of Suit No. 115 of 2012 by Media Max in which the ARY on the first date of hearing undertook that the Agreement dated 1-7-2001 has not been terminated. However, ARY without issuing a single notice approached this Court and filed Suit No. 124/2012 and obtained restraining order dated 3-2-2012 on concealment of facts.

7. It was further argued that vide letter dated 19-12-2011, Annexure CA/24 at page 417 of Counter Affidavit filed by Media Max to Stay Application in Suit 124 of 2012 makes it clear that ARY has confirmed as on 30-6-2011 that a balance amount of Rs.89,922,341.00 is payable to Media Max. The amount was confirmed in hand writing and their Senior Manger Finance Mr. Asim Patel also signed and stamped the said letter. To rebut this admitted liability ARY raised the pleas that figure of Rs.89,922,341.00 was admitted for "accounting purposes" and is not true and correct figure. They also manufactured a series of fictitious Emails including Email dated 19-12-2011 sent by Asim Patel to Sajid Hafeez of Media Max. In fact, this fictitious email was only sent by Mr. Asim Patel on 10-2-2012 which was received by Media Max on 10-2-2012 i.e. just 3 days before filing of Suit No. 165 of 2012 when the negotiations were taking place. M/s hostndomain.com conducted investigation and from I.P. Address of Media Max and ARY found out that this particular email was sent from Outlook (Computer Software for sending and storing emails on a personal computer) and Outlook picks system date. So if the system date of sender (asim.patel@arydigital.tv) is wrongly set then the mail will receive at recipient's end showing back date. The learned counsel referred to Annexure RJ/17 at page 2047 - 2053 of Suit No. 165 of 2012 filed by Media Max along with its Rejoinder to Stay Application. ARY has taken wrong plea that they have already paid 15% commissions of Media Max and nothing is outstanding. He further argued that under Order XII, Rule 6, C.P.C. any party may at any stage of a suit where admission of a fact is made either in pleadings or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties, hence this Court may be pleased to pass preliminary decree to the extent of the admitted amount i.e. Rs.89,922,341.00.

8. It was further contended that since inception of business relationship Media Max was using Logo, Trade Mark and Trade Name of `ARY' & ARY Digital' which amounts to an implied acceptance on the part of ARY and ARY Digital. Various admitted documents addressed by Media Max either to ARY, ARY Dubai, Pakistan Broadcasters Association or third party and or Advertising Agencies do show that Media Max was using the logo and trade name of ARY Digital and the same was within the knowledge of ARY and ARY Dubai. After use of logo and Trade mark/name for a period of more than 11 years it is only now that ARY is making flimsy allegations which are without substance. ARY further alleged 15 Agreements mentioned in Suit No. 165/2012 are forged and prepared in back date while in Suit No. 115/2012 only 4 agreements were mentioned. Despite claiming remaining 11 agreements are forged, ARY has not singled out any one of these Agreements as fraudulent. By a consent order dated 13-2-2012, ARY agreed to deposit 15% agency commission out of 15 third party contracts with the Nazir of this Court and they are till date depositing 15% share of Media Max with the Nazir of this Court.

9. As far as the plea that Media Max was merely a non-exclusive Agent of ARY, the learned counsel argued that since 2001 Media Max acted as sole and exclusive Agent of ARY Digital and upon subrogation in year 2006 they have acted as sole agent of ARY for ARY Digital Channel. On one hand ARY claims that Agreement dated 1.7.2001 was an eye wash made in back date but in Court Order dated 31.01.2012 passed in Suit No. 115 of 2012 the Counsel of ARY and ARY Dubai admitted the said Agreement and gave an undertaking that they do not intend to terminate the agreement Furthermore, the CEO and President of ARY Digital Network and ARY Com Mr.Salman Iqbal vide his email dated 31-1-2012 admitted the Agreement. The learned counsel referred to Annexure CA/34 page 755 filed with counter affidavit in Suit 124 of 2012. Furthermore, the Counsel of ARY in its legal Notice dated 31-1-2012 again admitted and recognized the Agreement dated 1-7-2001 which is annexed as Annexure CA/33 pg 753 with counter affidavit in Suit 124 of 2012. For 11 years ARY Dubai and ARY Com have admitted acceptance of money by or through Media Max as their sole Agent, however upon filing suit they have denied the relationship.

10. The process of registration of the Media Max with SECP was started prior to the signing of the Agreement dated 1-7-2001. The company was formed on 27-8-2001 and the transmission of ARY Digital Channel started on September 16, 2001, therefore, for all material purposes prior to the execution of the Agreement dated 1-7-2001, the company was operational.

11. He further argued that Sections 202, 204, 206 and 217 of the Contract Act along with relevant illustrations mentioned therein protect an Agent from illegal actions and or termination by a Principal. Section 202 provides that where an Agent has interest in the subject matter of the agency than said agency cannot be terminated to the prejudice of such interest. Section 204 provides that in case where an Agent has partly exercised the authority, than the principal cannot revoke the same. In the present case, Media Max entered into 15 third party contracts which pertained to sale of air time and sponsorship of ARY Digital Channel only. Due to illegal termination of Agreement dated 1.7.2001, Media Max was deprived of their 15% commission in such contract. However, ARY illegally terminated the Agreement and after obtaining restraining order dated 3-2-2012 started honoring the contracts itself. Section 206 provides that a reasonable notice must be given of such revocation or renunciation, otherwise damages resulting therefrom must be made good. It was further contended that Agreement read with Section 217 of Contract Act, makes it clear that Agent has authority to retain his share.

12. The learned counsel further argued that ARY in their pleadings alleged that Media Max was not disclosing or reconciling true and complete accounts to them. In this regard, he argued that all accounts were constantly shared between the two set of parties. Periodical details of clients, recoveries etc. were shared and reconciled. Media Max was issuing invoices in its own name and upon receiving payments transferred 85% to ARY Dubai and keep 15% as its commission. Media Max was also dealing with all the Tax issues of ARY Dubai. Even on their own Website, ARY has mentioned the only name and address of Media Max as its Agent.

13. It was further averred that to secure its own interest ARY through Letter dated 3-2-2012 misguided the Advertising agencies by misquoting this Court's Order dated 3-2-2012. ARY informed the Advertising Agencies that subject to direct payments, from now on ARY shall honour the third party agreements. By deliberately misquoting the Court Order dated 3-2-2012 ARY has committed contempt of the Court. ARY time and again failed to comply with the directions contained in Order dated 13-2-2012 whereby ARY was supposed to disclose all incomes and deposit with the Nazir 15% of such earning from the third party Agreements. After a delay of more than 5 weeks ARY filed the Statement of Account which was not certified by its chartered accountants. The contumacious actions of the officials of ARY mentioned in the CMA No. 7012 of 2012, 9667 of 2012 and 2208 of 2012 has made themselves liable to be punished in accordance with law.

14. As far as the claim of audit is concerned, the learned counsel argued that such inquiry will only delay the matter. However, he submitted that an audit of Media Max and ARY for a period from July, 2011 till December, 2012 will reveal the truth and claims of both the parties, especially in context with the third party Agreements. The learned counsel further referred to Section 196 of the Contract Act which provides the effect of ratification i.e. an unlawful Act of an Agent which is ratified by the principal is considered to have been performed with lawful authority. Section 197 of the Contract Act provides that ratification can be both express and implied from conduct of principal, Section 198 of Contract Act provides that valid ratification can only be done by principal when he has knowledge of material facts and Section 199 of the Contract Act provides that when a principal ratifies any unauthorized acts done on his behalf than he ratifies the whole transaction of which such act forms part of. A bare perusal of above sections show that ARY has expressly and impliedly ratified the alleged unauthorized and voidable actions of Media Max. In support of his arguments, he relied upon following case-law:

15. 2008 CLC 645 - CDGK v. Faqir Muhammad. Suit can be decreed on admissions at any stage of proceedings. Admission must be clear, unambiguous, unqualified and unequivocal, failing which it is incumbent upon the Court to frame issues and decide the case.

16. 2007 SCMR 433 - G.R.Syed v. Muhammad Afzal. Court was empowered under O.XII, R.6, C.P.C. to pass a judgment on the basis of admissions of facts made by the parties to their pleadings, at any stage of proceedings.

17. PLD 2004 SC 860 - Bolan Beverages (Pvt) Ltd. v. Pepsico INC and others. The close examination of Section 202 of the Contract Act would show that it can be split up into two parts. The first part contemplates that the interest of the agent himself should exist in the property that forms the subject matter of the agency. The second part of the section is that when such an interest is created, it cannot be terminated to the prejudice of agent unless it is expressly provided in the contract.

18. 2005 CLD 1805 - Roomi Enterprises (Pvt) Ltd. v. Stafford Miller Ltd. Even if an agency due to any reason creates an interest in the property and agreement itself provided for termination of such agreement of agency, Section 202 Contract Act cannot be invoked. Making of substantial investment in business of agency does not make the agency irrevocable.

19. 2005 SCMR 1408 - Sinaullah v. Muhammad Rafique. Ratification as required by Section 196, Contract Act, 1872 could be made by the person on whose behalf an act has been done by the agent without having authority to perform such act.

20. PLD 1989 Karachi 499 - Gulfam v. Ali Muhammad. Doctrine of ratification would apply to such acts only which were not void or forbidden by law--Ratification takes effect, though made subsequently, inasmuch as it validates the acts already performed and it relates back to the time of inception of the transaction as a complete retrospective efficacy.

21. 1999 YLR 1529 - Khadim Hussain v. Muhammad Fazil. Ratification of act of agent by principal need not necessarily be in writing, but same could be inferred from conduct of principal.

22. 2012 CLD 1380 - Faisalabad Development Authority v. M/s.Sarwar Latif Associates. Principal could accept even an unauthorized act done by his agent, which would amount to its validation and ratification.

23. Heard the arguments. Record shows that the litigation started between the parties when first Suit No. 115 of 2012 was filed by Media Max (Pvt) Ltd. against ARY Communication Ltd. and ARY Digital FZ, LL. This was suit for declaration and permanent injunction in which the plaintiff challenged the e-mail dated 29-1-2012 and the oral termination of agency agreement made on 30-1-2012. It is also a matter of record that when injunction application was placed for orders, the learned advocate for the defendants appeared and stated that annexure "A" which is an agency agreement has not been terminated. On this statement the plaintiff's counsel was satisfied and the injunction application was disposed of. It is also a matter of record that though the defendants' counsel gave their statement but just after two days i.e. 2.2.2012, the defendants terminated the agency agreement, which is now the subject matter of Suit No. 165 of 2012 filed by the same plaintiff against the same defendants for declaration, recovery, mandatory and permanent injunction. Since the cause of action of this suit has become over as the plaintiff has already filed its subsequent suit and the earlier suit was only confined to the declaration and permanent injunction regarding the above e-mail and oral termination therefore, in my view for all intent and purposes, at least this suit has become infructuous as the plaintiff has already availed the remedy by filing fresh suit impugning the termination of agency conveyed through legal notice dated 2-2-2012. In view of the changed circumstances and events the suit has become infructuous as no relief can be allowed otherwise to the plaintiff for the alleged oral termination. Consequently, this suit along with C.M.A. No. 1063 of 2012 is dismissed. Though the suit had been dismissed but an important aspect cannot be ignored lightly that on the one hand the counsel for the defendants stated that the agency agreement has not been terminated, while just after two days of this statement, the agency agreement was terminated. What was the force of circumstances or extraordinary events under which the agency agreement was terminated will be seen in the pending suits filed by the parties for and against.

24. ARY terminated the agency agreement on 2-2-2012 and filed their Suit No. 124 of 2012 in this Court. The injunction application was placed before the Court on 3-2-2012. It was argued that the agency agreement has been terminated, therefore, Media Max be restrained from representing as an agent of the plaintiff and receiving amount in their name from the clients. It was further argued that for the time being plaintiff have no intention to terminate the agreement executed by the defendant with various clients on behalf of plaintiff, with the assurance that the sale proceeds are directly given to the plaintiff. This Court while issuing notice to the defendant restrained it from representing as an agent of the plaintiff nor would receive any amount directly in their name.

25. Conversely, Media Max has also filed their Suit No. 165 of 2012 against ARY and on 13-2-2012 misc. applications including C.M.A. No. 1352 of 2012 were placed in Court for orders. On which date again the counsel for ARY without notice appeared and by consent it was ordered that ARY on receipt of amount from third party in respect of third party agreements shall retain 85% of such amount and 15% of such amount will be deposited with the Nazir of this Court. It is admitted fact that at present the agency agreement is terminated. It is also a fact, which is clearly reflecting from the record that Media Max though challenged the agency termination in their suit but there was no application filed for the suspension of termination notice with the prayer that the agency agreement will continue to operate till disposal of the suit. It is also a fact that on 24-12-2012, Nazir has submitted a consolidated report in both the suits and stated that in compliance of the Court's order ARY has deposited Rs. 15,22,86,741/-, which has been invested in National Saving Centre, Karachi. The deposit of this amount shows that ARY has deposited 15% agency commission of the Media Max with the Nazir of this Court. In both pending suits various allegations and counter allegations have been levelled vice versa and the bone of contention between the parties cannot be decided without recording evidence. Numerous documents have been filed by the parties to blame each other hence in order to reach to a just and proper conclusion and to sift grain from the chaff, evidence is necessary without which the actual controversy cannot be resolved. It is not out of place to mention here that the execution of agency agreement is an admitted fact, though it was initially for ARY FZ LLC to which Media Max was providing their services for selling airtime by procuring sponsorship and advertisements for ARY Digital channel. The agency agreement was executed in the year July, 2001. It has also been pleaded that relationship between the parties was so cordial and on the strength of same agency agreement Media Max was also providing the same services to ARY Communication Ltd. It is also a fact that Media Max for the purpose of their billing etc. was using logo of ARY and also representing ARY before different forums including Pakistan Broadcasters Association but it was never objected. Both the parties have filed various applications for and against including the application for recalling the stay order and the learned counsel argued that the stay granted in favour of his client deserve confirmation, while the interim order passed in favour of other party in their suit is liable to be vacated or recalled. Mr.Anwar Mansoor Khan relied upon the case-law that this Court may recall/ discharge the ex parte injunction orders. The interim orders in Media Max case was passed by consent of ARY's counsel who appeared without notice and waived the notice in Court on appearance. As I already observed that the most expeditious way to dispose of the issue of contractual obligation of a commercial nature is to record evidence, as soon as earlier. There is no cavil to the well settled proposition of law that the Court has ample powers to discharge, vary or set aside the injunction order and even where subsequent to passing of the injunctive order some development took place and new circumstances emerged requiring consideration, the Court may in appropriate cases vary, modify or even discharge the injunctive order, but in this case after considering the pros and cons. I am of the firm view that both the interim orders obtained by the parties as stated above should be confirmed. There is no case made out by both the parties for the discharge or vacating the interim orders passed for and against and to advance cause of justice, both orders shall remain in field till final disposal of the suit.

26. Though in the prayer clause Media Max has prayed that the agency was coupled with interest and they have also sought declaration that the termination of agency through legal notice dated 2-2-2012 is mala fide, unlawful and in violation of principle of natural justice but it is a fact that no injunction application was filed for seeking suspension of termination notice. Counsel for the Media Max made much emphasis that since agency was coupled with interest, the same could not have been terminated. In support of his arguments he relied upon PLD 2004 SC 860 and 2005 CLD 1805. The crux of both the case-law is that the Section 202 of Contract Act contemplates that the interest of the agent should exist in the property that forms the subject matter of the agency. Making of substantial investment in business of agency does not make the agency irrevocable. The subject matter of agency in this case was that the Media Max was selling airtime for different transmission including packages of T.V. commercial and sponsorship for different programs broadcast by ARY against 15% agency commission. Under Section 202 of the Contract Act it is clear that where the agent has himself interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. The relationship between the parties was quite common as in the case of other franchise or distribution network. The crux of the agreement and the consideration was the agency commission which ARY was allowing to Media Max against the services being rendered by Media Max.

27. It is well settled that illustrations should not be read as extending the meaning of a section, they should also not be read as restricting its operation, especially so, when the effect would be to curtail a right which the plain words of the section would confer. At this juncture, I would like to quote principles of statutory interpretation, Ninth Edition authored by Justice G.P. Singh (former Chief Justice M.P. High Court) in which he has referred to the case of Mahomed Sydeol Ariffin v. Yeah Oai Gark, 43 IA 256, (1916) 2 AC 575 and Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji, AIR 1938 PC 67 in which Court held that illustrations appended to a section form part of the statute and although forming no part of the section, are of relevance and value in the construction of the text of section and they should not be readily rejected as repugnant to the section. But illustrations cannot have the effect of modifying the language of the section and they cannot either curtail or expand the ambit of the section which alone forms the enactment. It is the duty of a Court of law to accept, if that can be done, the illustrations given as being both of relevance and value in the construction of the text. The illustrations should in no case be rejected because they do not square with ideas possibly derived from another system of jurisprudence as to the law with which they or the sections deal. And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the section themselves. It would be the very last resort of construction to make this assumption. The great usefulness of the illustrations which have, although not part of the sections, application of the statute, should not be thus impaired.

28. The two illustrations attached with Section 202 of the Contract Act have been provided to define the true spirit of the word "interest" used in the section itself. The first illustration demonstrate that an authority given by "A" to "B" to sell A's land to pay himself out of the proceeds, the debts due to him from A, which authority cannot be revoked. It is clear from the pleadings of the parties that Media Max has not claimed authority given by ARY to them to recover their debts by selling the airtime of ARY TV channel. The next illustration defines that "A" consigns 1000 bales of cotton to "B" who has made advance to him on such cotton and desire B to sell cotton, and to repay himself out of the price, the amount of his own advances. This authority cannot be revoked nor it can be terminated. Again I would like to observe that the relationship between the parties in this case based on agency commission and it is not the case of Media Max that they had purchased airtime and made any payment in advance to the ARY hence they cannot terminate the agency agreement. At present I am of the tentative view, that Media Max has not made out any case in which they can claim at this stage that their agency was coupled with interest and their alleged interest is protected under Section 202 of Contract Act.

29. Where an agreement is entered into on a sufficient consideration whereby an authority is given for the purpose of securing some benefit to the donee of the authority such an authority is irrevocable. The interest of the agent in the subject matter of the agency may be inferred from the language of the document creating the agency, and from the course of dealings between the parties. It is the existence of the interest and not the mode in which it is given, that is of importance. The interest which an agent has in effecting a sale and the prospect of remuneration to arise therefrom, do not constitute such an interest as would prevent the termination of the agency. The prospect of earning a commission is not an interest for this purpose. Where the plaintiff was only to get commission after the accrual of the net collection, he cannot prima facie be said to have any interest. The rule of present section applies only to the cases where the authority is given for the purpose of being a security or as a part of security, not to cases where the authority is given independently and the interest of the donee of the authority arises afterwards and incidentally only. As for instance, the goods are consigned to a factor for sale. This confers an implied authority to sell. Afterwards the factor makes advances. This is not an authority coupled with an interest but an independent authority and interest subsequently arising. Reference can be made to Section 202 of the Contract and Specific Relief Acts by Polluck and Mulla 13th Edition Vol. II.

30. Learned counsel for the ARY quoted different case-laws to highlight the salient features of an agency coupled with an interest. In the case of Abdul Habib Rajwani (supra), learned Judge quoted an excerpt from Halsbury's Law of England, IVth Edn, Volume-I. in which the authority coupled with an interest has been defined. The same aspect has already been discussed in detail in the cases of Cooper & Co. (Pvt) Ltd. v. Laurel Navigation (Mauritius) Ltd. M/s. Time N Visions International (Pvt) Ltd. v. Dubai Islamic Bank Pakistan Ltd., M/s. Fospak (Private) Ltd. v. Fosroc International Ltd., M/s. Al-Mumtaz Agencies v. Millat Tractors Ltd. and M/s. World Wide Trading Co. v. Sanyo Electric Trading Co. (supra) in all aforesaid case law, the hon'ble Courts have discussed the word `interest' of the agent, which is necessary to be dilated for the purpose of declaring or holding any agency coupled with an interest. The learned counsel for the plaintiff also referred to Section 196 of the Contract Act which relates to the rectification. He further referred to Section 204 of the Contract Act which provides that the principal cannot revoke the authority given to his agent after the authority has been partly exercised so far as regards such acts and obligations as arise from acts already done in the agency. The purpose of showing both sections is that when the agency agreement was terminated Media Max already entered into various agreements for selling sponsorship and airtime and since the authority given to Media Max was partly exercised hence, ARY could not have terminated the agency agreement. In this regard learned counsel referred to the case reported in 2005 SCMR 1408, PLD 1989 Kar. 499 and 1999 YLR 1529. The crux of the case-law is that the rectification could be made by a person on whose behalf an act was done by the agent. The rectification takes effect though made subsequently in as much as which validates acts already performed and the rectification of act of an agent by principal need not necessarily be in writing. It is an admitted fact that the counsel for the ARY candidly conceded to that ARY will honour all third party contracts provided that the sale proceeds are paid to them and in view of Court's order they are not only honoring the contracts but they are also depositing 15% agency commission of the Media Max with the Nazir of this Court.

31. So far as the basic principles required to be considered by this Court for granting injunction are concerned, the media max after termination of agency agreement cannot represent them as an agent unless their rights are decided by this Court. In this regard, ARY has made out prima facie case, the balance of convenience lies in their favour and if injunction order is not confirmed, it will not only create multiplicity of proceedings but will cause irreparable injury to them. So in my view the interim orders passed in Suit No. 124 of 2012 on 3-2-2012 deserve confirmation. Simultaneously, I am also of the firm view that the interim orders passed on 13-2-2012 in Suit No. 165 of 2012 should also continue till such time all third party contract are honored by ARY, and ARY will continue to deposit 15% agency commission of the Media Max with the Nazir of this Court until the entire contractual obligations of all such third party contracts are satisfied and honored. It is a matter of record that this order was passed by consent and to this extent, the Media Max has also made out prima facie case and if this order is recalled or modified, it will cause irreparable injury and loss to Media Max. Consequently, the C.M.A. No. 1046 of 2012 and C.M.A. No. 4803 of 2012 filed in Suit No. 124 of 2012 and CMA. No. 1352 of 2012, C.M.A. No. 2206 of 2012, C.M.A. No. 6235 of 2012 and C.M.A. No. 6234 of 2012 filed in Suit No. 165 of 2012 are disposed of in the above terms.

32. Now I would like to take up contempt of Court applications filed by both the parties in their respective suits vice versa. ARY in its suit filed C.M.A. No. 1685 of 2012 in which it is stated that C.E.O. of the Media Max has violated the Court's order dated 3-2-2010 hence, proceedings should be initiated against them. In the same suit the defendant Media Max has filed C.M.A. No. 2204 of 2012 in which it is stated that the alleged contemnors have misinterpreted the direction contained in the order dated 3-2-2012, while in the Media Max suit they have filed CMA No. 9667 of 2012 with the prayer that the Director of the ARY has wilfully violated the Court's order dated 7-3-2012 so contempt proceedings be initiated against him. In the same case the defendant ARY has also filed application bearing CMA No. 1684 of 2012 that the alleged contemnor Media Max has violated the Court's order dated 3-2-2012. The plaintiff in Suit No. 165 of 2012 has also filed CMA No. 2208 of 2012 in which it has been prayed that order may be passed against the alleged contemnors who have committed contempt of Court's order dated 13-2-2012 by disobeying directions to deposit 15% of revenue generated from third party contracts. All the alleged contemnors have filed their counter affidavits and denied to have committed any contempt. The issue of contempt is a serious issue which is always a matter between the Court and the alleged contemnor but before framing issue or charge, it is incumbent upon the Court to first examine the matter whether any prima facie case of contempt is made out or not which warrants or merits issuance of show cause or framing of issue or charge. In the case in hand I am of the view that the parties in both suits raised allegations and counter allegations that the other party has flouted the Court order and committed contempt but in the nutshell nothing has been placed on record to substantiate the allegations. I have carefully examined all contempt applications. The subject matter of CMA No. 1685 of 2012 is a letter dated 14-2-2012 written by Mr. Abid Zuberi on behalf of Media Max to the advertisers intimating the order dated 13-2-2012. In CMA No. 2204 of 2012, Media Max has stated that ARY violated the order dated 3-2-2012 and in CMA 9967 of 2012 and CMA No. 2208 of 2012, it is stated that ARY failed to deposit the amount. In CMA No. 1684 of 2012, ARY has again only attached the correspondence made by Mr. Abid on behalf Media Max with advertisers relating to the Court orders. In the ARY suit Media Max has been restrained to represent them as agent of ARY while in Media Max case, the ARY has been directed to deposit the agency commission with the Nazir. May be there was some delay but fact remains that Nazir report shows the deposit of huge amount. Both the parties in their applications failed to point out any specific and precise instance or occurrence of contempt but made only sweeping allegations against each other which seems to be a pressurizing tactics motivated by retaliation and vengeance. Nothing shown that parties have committed disobedience or disregards any order, direction or process of a Court or wilful breach of any undertaking which tends to bring the authority of Court or the administration of law into disrespect or disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings or to disturb the order or decorum of the Court. Hence I feel no hesitation in my mind to hold that there is no plausible reason to initiate any action against the parties for the contempt of Court proceedings. Consequently, CMAs. Nos. 1685 and 2204 of 2012, filed in Suit No. 124 of 2012 and CMAs. Nos. 9667, 2208 and 1684 of 2012 filed in Suit No. 165 of 2012 are dismissed.

33. ARY in their Suit No. 124 of 2012 filed CMA. No. 1047 of 2012 under Order XL, Rule 1, C.P.C. for the appointment of Receiver to attach the bank accounts of the defendants maintained in two banks, while Media Max in their suit filed CMA. No. 1353 of 2012 under Section 94, C.P.C. read with Section 151 and prayed that the Nazir may be appointed with the direction to take over, operate and manage the accounts in relation to sale and marketing of airtime and sponsorship business of ARY Digital from 3-1-2012 onwards in respect of third party contract. In Suit No. 165 of 2012 the plaintiff has filed another CMA No. 5910 of 2012 under Section 94 read with Section 151, C.P.C., with the prayer that the bank accounts and assets of the defendants be attached/freezed. Recently, in Suit No. 167 of 2012, (Naseem-ul-Haq v. Raees Aftab Ali Lashari and others), I have decided the receivership application in which it was held that the object and purpose of the appointment of Receiver may generally be stated to be the preservation of the subject matter of the litigation pending judicial determination of the rights of the parties. Appointment of Receiver is an act of the .Court and made in the interest of justice. The words "just and convenient" do not mean that the Court is to appoint Receiver simply because the Court thinks it convenient. The order is discretionary and the discretion must be exercised in accordance with the principles on which judicial discretion is exercised. The terms `just and convenient' used in the rule does not mean arbitrary whim or pleasure of the Court. Appointment of Receiver deprives a person from enjoyment of the property, and therefore, it has been regarded as harsh remedy. The distinction between a case in which temporary injunction may be granted and a case in which a Receiver may be appointed is that while in either case it must be shown that property should be preserved from waste and alienation. In the former case it is sufficient that if it be shown that the plaintiff in the suit has a fair question to raise as to the existence of the right alleged while in the latter case a good prima facie title to the property over which the receiver is sought to be appointed as to be made out. A receiver cannot be appointed unless there is some substantial background for such interference that the property in suit dissipated or other irreparable mischief may be done, unless the Court appoints a Receiver.

34. In the present case, I have already confirmed interim orders passed by this Court for and against the parties. It is also a fact that ARY agreed that all third party contracts entered into by Media Max on its behalf will be honoured. It is also a fact that ARY is depositing 15% agency commission with the Nazir of this Court in view of Court's order and Nazir already submitted the report. The bare bones of the matter is whether Media Max was lawfully appointed agent and in terms of agency agreement whether Media Max also acted for ARY Communication Ltd. or not. ARY has already terminated the contract and its claim of any recovery against Media Max cannot be decided without evidence. On the contrary, the application filed by the Media Max that the Nazir be directed to take over, operate and manage accounts for the third party contract for which I would like to observe that this Court has already passed the order that 15% agency commission of third party contract will be deposited by the ARY with the Nazir of this Court hence I do not find it suitable at this stage to appoint Receiver or to give any directions to the Nazir to takeover or operate the accounts in relation to the sale and marketing of the airtime relating to the third party contract or to pass any order for the attachment of ARY or Media Max accounts. Consequently, CMA. No. 1047 of 2012 filed in Suit No. 124 of 2012 and CMA. No. 1353 of 2012 and CMA. No. 5910 of 2012 filed in Suit No. 165 of 2012 are dismissed.

35. ARY in its suit filed CMA. No. 3292 of 2012 for the appointment of Chartered Accountant to audit the accounts of the business undertaken by the Media Max as an agent since 2001. ARY has also moved another CMA. No. 6232 of 2012 under Section 151, C.P.C. for the direction to the Media Max to refund/repay the amount fraudulently collected directly from the advertisers on behalf of ARY. Further direction have been sought that Media Max be directed to give full and complete statement of accounts and the amount be deposited in Court.

36. Conversely, Media Max in their suit filed CMA. No. 2207 of 2012 in which they have prayed that the Commissioner be appointed to inspect the defendant's accounts and obtain copies to ascertain the payment received by ARY from advertisers. In nutshell, both the parties vice versa in their suits wanted that proper reconciliation be made out to ascertain their rights and obligation of payment and their liabilities against each other. The record reflects that there was a long standing relationship between the parties, in which various third party contracts might have been executed by Media Max for selling airtime and advertisement/sponsorship. Both the parties have filed voluminous documents including invoices and tracking reports etc. and have claimed huge amount against each other hence, in order to cut short or curtail the volume of litigation and or the controversy between the parties it would be just and proper to appoint Chartered Accountant to audit the accounts of Media Max and ARY for the purpose of reconciliation and to fix the liability against each other. ARY claims that Media Max collected the amount directly and fraudulently misappropriated the same, while the Media Max claims that the amount was regularly being paid to ARY after making deduction of 15% agency commission. Media Max has also brought on record copies of some cheques to show that the amount was paid to ARY. As a result of this discussion, CMA. No. 3292 of 2012 and CMA. No. 6232 of 2012 filed in Suit No. 124 of 2012 and CMA. No. 2207 of 2012 filed in Suit No. 165 of 2012 are disposed of in the terms that let a Chartered Accountant be appointed to audit the accounts of Media Max and ARY since 2001 in relation to the agency agreement involved in the suit as well as service rendered if any by Media Max for ARY Communication Ltd. Both parties will submit the books of accounts relating to their business relationship/dealings to the Chartered Accountant and will also depute their responsible officials/ representatives to appear before the Chartered Accountant for audit purpose and proper Stance. The Chartered Accountant shall submit the report within six months. The fee of the Chartered Accountant will be borne by the parties equally. Both the parties may appoint any Chartered Accountant or Chartered Accountant firm by consent and if they will fail to choose the name of Chartered Accountant by consent, either party may apply to this Court for appointment of Chartered Accountant.

37. Counsel for the ARY filed this application under Order VII, Rule 11, C.P.C. on the ground that no cause of action has been arisen in favour of the plaintiff and the suit is barred by law. It is a matter of record that before filing suit by Media Max, ARY filed the suit in this Court, in which they have claimed various relief(s) against Media Max. It is also an admitted fact that there was an agency agreement between the parties and under the orders of this Court ARY is depositing 15% agency commission of Media Max with the Nazir of this Court. At this juncture, I would like to quote my own judgment authored in the case reported in 2010 CLC 1603 (Muhammad Shabbir v. Faraha Bibi and others). It is well-settled principle that only the contents of the plaint may be looked into without any extraneous consideration and even, the Court may not see the Written Statement/affidavits etc. filed by the defendants. Court has to confine itself only to the averments made in the plaint and has to take the contents thereof to be true and cannot go beyond the same. If, however, on taking the averments made in the plaint the Court finds the plaint to be barred by law, the Court can reject the plaint but cannot do so by resolving the contested facts. The plaint can only be rejected where its perusal shows that the relief claimed by the plaintiff was barred under any provision of law or a suit on the basis of it was incompetent. The word "cause of action" means bundle of facts which if traversed, a suitor claiming relief is required to prove for `obtaining judgment.

Nevertheless, it does not mean that even if one such fact, a constituent of cause of action is in existence, the claim can succeed. The totality of the facts must co-exist and if anything is wanting the claim would be incompetent. A part is included in the whole but the whole can never be equal to the part. It is also well understood that not only should the party seeking relief have a cause of action when the transaction or the alleged act is done but also at the time of the institution of the claim. A suitor is required to show that not only a right has been infringed in a manner to entitle him to a relief but also that when he approached the Court the right to seek the relief was in existence. It has no relation to the defence that may be set up nor does it depend upon the character of the relief prayed. Lack of proof or weakness of proof in circumstances of the case did not furnish any justification for coming to conclusion that there was no cause of action shown in the plaint. The Court cannot take into consideration pleas raised by the defendants in the suit in his defence as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record. Reference can also be made to my other judgments also reported in 2010 CLC 1968 (Badal v. Mansoor Ahmed Awan and others) and 2011 CLC 88 (Bano alias Gul Bano v. Begum Dilshad Alam and others). Keeping in view the complicated questions of law and facts involved, I do not find any substance in this application. The CMA. No. 3360/2012 is dismissed.

1. Three more applications have been filed by the Media Max in their Suit No. 165 of 2012. In the first application moved under Section 151, C.P.C. the plaintiff has prayed that the amount deposited with the Nazir be released to them. The next application has been moved under Order XXXIX, Rule 10, C.P.C. in which the plaintiff has sought direction that the Defendant No. 1 be directed to deposit Rs.89,922,341/- in Court while the third application has been moved under Order XII, Rule 6, C.P.C. in which the plaintiff has prayed that preliminary decree may be passed to the extent that admitted amount of Rs.89,922,341/- as the Defendant No. 1 admitted the liability of this amount vide their letter dated 19-12-2012 which is part of plaint. Learned counsel for the plaintiff heavily relied upon the letter dated 19.12.2011, which is available at page 405 annexure P-24, this letter was written by Media Max to ARY Communication Ltd. for the balance confirmation for audit purpose. The Media Max according to their record claimed the balance of agency commission in the sum of Rs.89,922,341/- as on 31-6-2011. On this letter the authorized representative of ARY Communication Ltd. confirmed the balance amount. On the basis of this annexure the plaintiff has prayed that preliminary decree may be passed for the aforesaid amount. A preliminary decree declares the rights and obligations of the parties leaving further matters to be determined in subsequent proceedings. Such decrees are normally determinative of controversies of a fundamental nature. C.P.C. provides and vested in the Court to pass preliminary decrees under Order XX Rules 12 to 16 and 18 and under Order XXXIV, Rules 2 to 5 and 7 and 8. A preliminary decree and a final decree are both distinct and independent entities. According to the Explanation attached to Section 2(2), C.P.C. a decree is preliminary when further proceedings have to be taken in the suit and the suit has not been completely disposed of. In contrast, Order XII, Rule 6, C.P.C. is embedded with the language that a party may apply for a judgment on admission without waiting for the determination of any other question between the parties and the decree can be drawn up in respect of the portion of the admitted claim. In the present circumstances, no case is made for passing any preliminary decree.

2. Now I would like to consider whether the endorsement on the letter amounts to admission or not. The Defendant No. 1 filed the counter affidavit to this application but instead of giving separate reply they have relied upon the counter affidavit filed against CMA. No. 1354 of 2012 and took the plea that the alleged admission on their part cannot in any manner be deemed to be an admission. It is further submitted that this was current and running account that changes with every passing moment and the details can be only workout after due and proper examination of accounts. The letter dated 19-12-2011 was only a formal letter sent by the plaintiff for the purpose of audit requirement for previous transactions hence, the Defendant No. 1 sent the same in good faith. It was further stated that annexure page-26 of the plaint is self-explanatory to the effect that no amount is outstanding against the Defendant No. 1 as the plaintiff has already received huge amount which is more than his due share as such the above amount was only for the audit purpose and was not the actual amount, which was clarified by the Defendant No. 1's representative vide e-mail dated 19-12-2012. To this e-mail the counsel for the plaintiff argued that it was manufactured or fictitious and was sent by Mr.Asim Patel on 10-2-2012 just three days before filing the Suit No. 165 of 2012.

3. There is no doubt that Order XII, Rule 6, C.P.C. enables a Court upon application by either party to dispose of the suit with regard to which there is no dispute between parties. The entire plaint or written statement is required to be read for the purposes of finding out the nature of admission. It is also well settled that for the purposes of decreeing the suit on admission it is necessary that the admission must be clear, specific, unambiguous, definite and categorical and Court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission. In the judgment reported in PLD 2003 Karachi 253 (M/s.Gerry's International (Pvt) Limited v. M/s.Qatar Airways), the learned Division Bench of this Court held that mere non-denial to a fact in the written statement could not be considered as an admission and that too be equated as unequivocal, clear and unambiguous. The Supreme Court in the case of Macdonald Layton & Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Co. reported in 1996 SCMR 696 held that essential provision of Order XII, Rule 6, C.P.C. provides summary and speedy remedy in cases where admission was made by defendant in the pleadings or outside the same. In order to attract this provision, it is necessary that the admission should be unequivocal and undeniable. The Court in deciding such application exercise its discretion which is regulated by the well-recognized principles. To pass judgment on admission is within the discretion of the Court which should be exercised in judicial manner and is not a matter of right. However, if it involves questions which cannot be conveniently disposed of in an application, the Court may exercise discretion in rejecting the application. Reference can be made to my own judgment reported in 2013 CLC 535 (Syed Waqar Haider Zaidi v. Mst.Alam Ara Begum).

4. The learned counsel for the plaintiff relied upon 2008 CLC 645, 2007 SCMR 1933 and 2007 SCMR 433 in support of his submissions. The gist of the case-law is that the suit may be decreed on admission at any stage of proceedings but the admission must be clear, unambiguous, unqualified and unequivocal failing which it is incumbent upon the Court to frame issues and decide the case. One more thing which I would like to point out that no such admission has been made by the defendant in their pleadings, but it is the plaintiff who has filed this letter in question with the plaint and in response to the application made under Order XII, Rule 6, C.P.C, the Defendant No. 1 clearly denied to have made any admission and raised contention that the plaintiff from their own showing, which is clear from the language of letter, that the confirmation was sought only for audit purpose. Though at present the plaintiff is not entitled for the decree on admission for the aforesaid amount, but it is also a fact that huge amount of 15% agency commission has been deposited by the defendant with the Nazir in view of the Court's order.

5. Since the defendants are not at daggers drawn with the sponsors, advertisers and or media buying houses/companies, therefore, learned counsel for the defendant has intensely given his statement in Court that the defendant will honour all third party agreements/ contracts provided that the sale proceeds of the airtime are directly paid to them and by a consent order the defendants are depositing 15% agency commission with the Nazir. As I already observed that the matter will be decided after providing an opportunity of leading evidence to both the parties and for their convenience and to cut short the volume of litigation, I also ordered for appointment of Chartered Accountant to examine and audit the books of accounts to fix the liability and the payment and receivables due against each other. When both the above suits were fixed for hearing before me on 19-12-2012 the counsel for the plaintiff who is also appearing for defendant in Suit No. 124 of 2012 made a request that due to some financial crunch, the defendant wants to withdraw some amount from Nazir subject to depositing of security or bank guarantee so on his request the Nazir was directed to submit report which he submitted on 24-12-2012 and confirmed that ARY has deposited Rupees fifteen crores twenty-two lacs eighty six thousand seven hundred forty one only, which is on account of 15% agency commission of Media Max generated through third party contracts during the tenure of agency agreement, therefore, I am of the view that the claim of agency commission cannot be rejected out rightly at this stage and no harm will be caused to the ARY if some amount is released subject to furnishing solvent surety or bank guarantee.

6. The learned counsel further argued that Media Max desperately needs funds for its survival so keeping in view the equitable consideration and to maintain equilibrium during pendant determination of the rights of parties, the Nazir is directed to release a sum of Rupees five crores to the Media Max subject to furnishing solvent surety/bank guarantee. After evidence and or submission of chartered accountant report and hearing of objections if any by this Court, the amount if any is found due and payable to the Media Max by ARY then this amount will be adjusted in the amount of agency commission and in case any amount is proved to be paid by the Media Max to ARY then to secure and guarantee this amount solvent surety or bank guarantee would be available in the Court to ensure refund and satisfy the claim of the ARY against Media Max. Consequently, CMA. No. 4817 of 12 is disposed of in the above terms whilst CMA. No. 1354 of 2012 and C.M.A. No. 1355 of 2012 are dismissed.

7. As a result of above discussions, Suit No. 115 of 2012 is dismissed along with pending application. All pending applications in Suit No. 124 of 2012 and Suit No. 165 of 2012 are also disposed of accordingly.

(R.A.) Order accordingly

PLJ 2014 Karachi 133 (DB)

Present: Muhammad Ali Mazhar & Sadiq Hussain Bhatti, JJ.

M.Q.M and others--Petitioners

versus

PROVINCE OF SINDH & others--Respondents

Const. Petition Nos. D-5098, 4559, 4463, 4521, 4803, 5023, 5080, 5091, 5104, 5172, 5294, 5329, 5369, 4724, 4763, 5325 & 5404 of 2013, decided on 30.12.2013.

Delimitation of Constituencies Act, 1974 (XXXIV of 1974)--

----S. 9--"Delimitation of electoral districts"--Meaning and principles--"Gerrymandering"--Meaning--Boundary delimitation was the drawing of boundaries, particularly of electoral precincts, states, counties or other municipalities, it could be called redistribution in order to prevent unbalance of population across districts--Unbalanced or discriminatory delimitation was called "gerrymandering"--Electoral districts were delimited in different ways; sometimes they were drawn based on traditional boundaries, sometimes based on the physical characteristics of the region and, often, the lines were drawn based on the social, political and cultural contexts of the area--Delimitation was a serious business which could not be done in a slipshod manner or in spur of the moment but it required hectic and strenuous efforts. [Pp. 180 & 183] A, B & C

Interpretation of statutes--

----Proviso to a section--Scope- and function--Proviso attached to any section could not be read in isolation--Powers given in the proviso could not be uncontrolled or independent to the original section. [P. 186] H & I

Interpretation of Statutes--

----Proviso',Exception' and Saving Clause'--Distinction--Exception' was intended to restrain the enacting clause to particular cases; Proviso', was used to remove special cases from the general enactment and provide for them specially; andSaving Clause' was used to preserve from destruction certain rights, remedies or privileges already existing. [P. 186] J

Principles of Statutory Interpretation (Fourth Edition) 2006 by Justice G.P. Singh ref.

Constitution ofPakistan, 1973--

----Pt. II, Ch. 1--Fundamental rights--Such a right could not be taken away, suspended or abridged--Fundamental right guaranteed by the Constitution could not be annihilated or taken away in garb of reasonable restrictions--Fundamental Rights were natural rights which were personal to individual as a citizen of a free and civilized community--Essential characteristic of Fundamental Rights was that they imposed limitations, express or implied, on public authorities from interfering with their exercise--Courts were duty bound to protect Fundamental Rights guaranteed in the Constitution. [P. 191] S & U

Constitution ofPakistan, 1973--

----Arts. 8 to 28 & 199--Fundamental Rights, enforcement of--Jurisdiction of High Court under Art. 199 of the Constitution--Scope--Art. 199 of the Constitution empowered High Court to issue any appropriate directions for the enforcement of Fundamental Rights conferred by the Constitution. [P. 191] T

Constitution ofPakistan, 1973--

----Arts. 25, 184(3) & 199--Discrimination--Connotation--Reasonable classification--Scope--Judicial review--Scope--Discrimination against a group or an individual implied making an adverse distinction with regard to some benefit, advantage or facility--Discrimination thus involved an element of unfavourable bias--Act was discriminatory only when it was improper' or where there was capricious exercise or abuse of discretionary authority, and the person against whom that discretion was exercised faced certain appreciable disadvantages which he would not have faced otherwise--Art. 25 of the Constitution enshrined the basic concept of religion of Islam by providing that all citizens were equal before law and were entitled to equal protection of law, however, the above clause did not prohibit treatment of citizen on the basis of reasonable classification--Under Art.25 of the Constitution, reasonable classification was not .prohibited but it was required that all persons similarly placed should be treated alike--When no standard was provided to avoid the violation of equality clause, the court could judicially review to see whether or not the powers delegated had been exercised arbitrarily--When a provision of statute was pressed into service in a discriminatory manner, it was liable to be struck down on ground of violation of Art. 25 of the Constitution. [Pp. 191 & 192] V, W & X

Vires of Statute--

----Principles--Doctrine of severability--Scope--Doctrine of severability permitted a court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder, but if the valid portion was so closely mixed up with the invalid portion that it could not be separated without leaving an incomplete or more or less mixed remainder, the court would declare the entire act void. [P. 192] Y

Sindh Local Government Act, 2013 (XLII of 2013)--

----Ss. 10, 11, 12, 13, 16, 18(12) & (14) & 33--Sindh Local Councils (Election) Rules, 2013, Rr. 8, 9 & 10--Delimitation of Constituencies Act (XXXIV of 1974), Ss. 3, 9, 10 & 10A--Constitution of Pakistan, 1973 Arts. 25 & 199--Constitutional petition--Discretion of court to ignore an illegality in the national interest--Scope--Delimitation of electoral units carried out by Government of Sindh ("Provincial Government") for Local Government elections--Delimitation process was carried out illegally and was also violative of certain Articles of the Constitution--Plea on behalf of Provincial Government that date of local body elections was very near and if any wrong or violation of law was committed even then the court might ignore such illegality--Validity--Such plea was of no relevance as subject of present petition was vires of law under which elections of the Local Government were to be conducted--During the delimitation process besides committing lapses in the constitutional mandate, independent candidates were ousted from contesting the elections unless they formed a panel--Such ouster could not be considered a reasonable classification made in the law--Entire delimitation exercise carried out by the delimitation officers was conducted in violation of Ss. 10, 11, 12 & 13 of the Sindh Local Government Act, 2013 and the guidelines issued by the Provincial Government--Consequently High Court set aside the final delimitation proposals for different divisions published in official gazette--Petition was allowed. [P. 193] Z

PLD 1989 SC 166 distinguished.

Sindh Local Government Act, 2013 (XLII of 2013)--

----Ss. 10, 11, 12, 13, 16, 18(12) & (14) & 33--Sindh Local Government (Third Amendment) Ordinance (XV of 2013), Ss. 3, 4 & 8--Sindh Local Councils (Election) Rules, 2013, Rr.8, 9 & 10--Delimitation of Constituencies Act, (XXXIV of 1974), Ss. 3, 9, 10 & 10A--Constitution of Pakistan, 1973 Art. 199--Constitutional petition--Delimitation of electoral units for local government elections--Procedural or directory requirement--Substantial compliance as opposed to strict compliance--Scope--Government of Sindh ("Provincial Government") carried out the delimitation process after making amendments in Sindh Local Government Act, 2013 through Sindh Local Government (Third Amendment) Ordinance, 2013--Plea on behalf of Provincial Government that there might be certain difficulties or deficiencies in the amendments but if such difficulties did not materially affect the election process and in case procedural and directory requirements were substantially complied with, then violation of law, if any, might be ignored as the date of Local Government elections was fast approaching--Validity--Lapses in the delimitation process and the effect of Sindh Local Government (Third Amendment) Ordinance, 2013 had far reaching adversative effects which could not be considered mere directory, thus the question of substantial compliance, either partial or impartial did not arise when the amendments were ab initio void and/or in derogation of the law and the constitutional mandate--Amendments made in Sindh Local Government Act, 2013 through Sindh Local Government (Third Amendment) Ordinance, 2013 were struck down consequently--Petition was allowed. [P. 193] AA

(2011) 1 Supreme Court Cases 236 distinguished.

Constitution of Pakistan, 1973--

----Arts. 25, 140-A, 218, 219 & 199--Delimitation of Constituencies Act (XXXIV of 1974), Ss. 3, 9, 10 & 10-A--Sindh Local Government Act, (XLII of 2013), Ss. 10, 11, 12, 13, 16, 18(12), (14), 33, 34, 35, 36, 153-A & Sched. I, Pt. C--Sindh Local Government (Third Amendment) Ordinance (XV of 2013), Ss. 3, 4 & 8--Sindh Local Councils (Election) Rules, 2013, Rr. 8, 9 & 10--Constitutional petition--Vires of amendments made through Sindh Local Government (Third Amendment) Ordinance, 2013--Delimitation of electoral units for Local Government elections--Delimitation process carried out by the Government of Sindh Deputy Commissioners of respective districts were appointed as delimitation officers in respect of local councils--Delimitation officers could seek assistance in the delimitation work from the Assistant Commissioners, Mukhtiarkars and other relevant officers in the district but nothing was provided to maintain transparency in the delimitation process or to make it foolproof or watertight--Similarly said guidelines did not provide that delimitation officers may hold inquiries and summon witnesses for the purposes of making the delimitation exercise fair and transparent--Almost all the petitioners had challenged the delimitation process as being sham, mock or non-transparent and pleaded that their objections were not considered by delimitation officers nor any ample opportunity was afforded to them--Delimitation officers were appointed on 26-9-2013 and the guidelines for delimitation were issued much earlier on 19.8.2013 but the Provincial Government promulgated Sindh Local Councils (Election) Rules, 2013 on 27-11-2013--Although Rules, 2013 were primarily germane to the election and contained provisions dedicated to the delimitation of electoral units, but in the Rules, 2013 neither the earlier notification appointing delimitation officers nor the guidelines issued were protected--For the purposes of election a local area shall be divided into electoral units keeping in view the number of seats of the council and the population of the local area; that electoral units within the area shall be delimited having regard to the territorial unity and as far as practicable to distribution of population--Delimitation officer shall arrange preliminary list of the units delimited together with a notice inviting objections or suggestions--Crucial exercise of carrying out inquiry, summoning of witnesses or recording of evidence was not carried out by delimitation officers prior to submitting the final delimitation proposal and such lapses became the root cause of the allegations of gerrymandering against the Provincial Government--During delimitation process lapses and irregularities were committed when certain rural areas were included in urban areas, which was a glaring contravention of S. 13 of Sindh Local Government Act, 2013--Proviso was added to said S. 13 by virtue of S. 3 of Sindh Local Government (Third Amendment) Ordinance, 2013, to cover up irregularities, deficiency and violations during the delimitation process and an attempt had been made to cover up and protect non-compliance with S. 13 of Sindh Local Government Act, 2013--Proviso in question was also discriminatory and illegal and was made to circumvent the original text of S. 13--Proviso in question provided protection with retrospective effect to illegalities committed by delimitation officers, therefore, it was unconstitutional, since it made it impossible to hold fair and free elections in terms of S. 34 of the Sindh Local Government Act, 2013 and under Arts.218 & 219 of the Constitution--Proper population criteria was also not followed during the delimitation process--Prior to amendment made by S. 8 of Sindh Local Government (Third Amendment) Ordinance, 2013, population limit/figure of union committee in metropolitan corporation was between 40,000 to 50,000 but after the amendment said figure was substituted with a figure of "10,000 to 50,000"--Said amendment was made whereby a crucial fluctuation and change in the population was made but the final delimitation proposals for certain divisions submitted by the Commissioners were published in the official gazette on 13-11-2013, which showed that said amendment too was made to protect the defects of delimitation officers by giving it retrospective effect--Such fluctuation in population figures ranging from 10,000 to 50,000 was totally discriminatory, unrealistic and made without any justification, which gave rise to allegations of gerrymandering--During delimitation process names of certain union councils/committees were unlawfully changed, in contravention of S. 16 of the Sindh Local Government Act, 2013--By virtue of S. 4 of Sindh Local Government (Third Amendment) Ordinance, 2013, subsections (12) & (14) were added into S. 18 of Sindh Local Government Act, 2013 and a mandatory condition for formation of panel was imposed--Said amendments provided that there shall be a panel consisting of nine contesting candidates, including general members, woman, peasant or labourer and non-Muslim for contesting election in a union council or a union committee as the case might be; that in case a political party or independent candidates failed to form a panel for contesting election the nomination papers of all other independent candidates or nominees of a political party shall be deemed to have been rejected--Through said amendments an independent candidate who might be pious, competent, person of integrity and was entitled to contest local bodies election was ousted, which was a sheer violation of Ss. 35 & 36 of Sindh Local Government Act, 2013, wherein no condition of panel was attached--Said amendments were also opposed to Arts. 17 & 25 of the Constitution--Election through panel was also in conflict with the proviso to S. 33 of Sindh Local Government Act, 2013, by which an independent candidate could contest the election and thereafter, at his own will, he might or might not join any party--High Court declared that entire delimitation exercise carried out by the delimitation officers was in violation of Ss. 10, 11, 12 and 13 of the Sindh Local Government Act, 2013 and the guidelines issued by the Provincial Government, and consequently, the final delimitation proposal published in official gazette for certain divisions was set aside; that Local Government elections in the Province may be conducted on 18-1-2014 on the position which existed prior to the delimitation process started in the year 2013; that if the Provincial Government was of the view that the exercise of delimitation was necessary prior to Local Government elections then it may make a request to the Supreme Court and the Election Commission for extension in the date of election; that if the date of election was extended by the Supreme Court and Election Commission for delimitation purposes, then it was suggested that an independent commission or body be formed by the Provincial Government with proper rules and the procedure to deal with the objections and also to provide an independent forum of an appellate authority to hear and decide the appeals in the delimitation cases; that amendments made in Sindh Local Government Act, 2013 through Ss. 3, 4 & 8 of the Sindh Local Government (Third Amendment) Ordinance, 2013 were violative of Ss. 12, 13, 34, 35, 36 & 153-A of the Sindh Local Government Act, 2013 and also opposed Arts. 17, 25, 140A, 218 & 219 of the Constitution, and were consequently struck down--Constitutional petition was allowed. [Pp. 183, 184, 185, 186, 187, 188, 189, 190 & 194] D, E, F, G, L, M, N, O, P, Q, R & BB

412 U.S. 783 (1973) ref. 410 U.S. 315 (1973) ref.

Dr. Muhammad Farogh Naseem, Advocate for Petitioner (in C.P. No. D-5098 of 2013).

Petitioner in person (in C.P. No. D-4559 of 2013).

Mr. Muhammad Mansoor Mir, Advocate for Petitioner (in C.P. No. D-4463 of 2013).

Mr. S. Mureed Ali Shah, Advocate for Petitioner (in C.P. No. D-4521 of 2013).

Mr. Narain Das Motiani, Advocate for Petitioner (in C.P. No. D-4803 of 2013).

Mr. Abdur Rehman, Advocate for Petitioner (in C.P. No. D-5023 of 2013).

Mr. Iqbal Qadri, Advocate for Petitioner (in C.P. No. D-5080 of 2013).

Mr. Khizar A. Zaidi, Advocate for Petitioner (in C.P. No. D-5091 of 2013).

Mr. Muhammad Aslam Bhutta, Advocate for Petitioner (in C.P. No. D-5104 of 2013).

Mr. Inayatullah G. Morio, Advocate for Petitioner (in C.P. No. D-5172 of 2013).

Mr. Abdur Rehman, Advocate for Petitioner (in C.P. No. D-5294 of 2013).

Mr. Abrar Hassan, Advocate for Petitioner (in C.P. No. D-5329 of 2013).

Mr. M. Waseem Sammo, Advocate for Petitioner (in C.P. No. D-5369 of 2013).

Mr. M. Mehboob Awan, Advocate for Petitioner (in C.P. No. D-4724 of 2013).

Mr. Muhammad Mehboob Awan, Advocate for Petitioner (in C.P. No. D-4763 of 2013).

Mr. Moharram G. Balouch, Advocate for Petitioner (in C.P. No. D-5325 of 2013).

Syed Yasir Ahmed Shah, Advocate for Petitioner (in C.P. No. D-5404 of 2013).

M/s. Khalid Javed Khan, A.-G., Sindh, Sibtain Mehmood, A.A.-G., Abdul Jalil Zubedi, A.A.-G., along with Mustafa Sohag, Deputy Secretary and Akhlaq Ahmed, Section Officer, Local Government Department, Asadullah Abro, Dy. Commissioner, Kamber/Shahdad Kot, Agha Shahnawaz, Dy. Commissioner, Thatta, Gul Muhammad Kurijo, Asstt. Commissioner Garabari, Abdul Aleem Lashari, Dy. Commissioner, Shaheed Benazirabad, Ghulam Farooq Leghari, Asstt. Commissioner, District Central and Ghaffar Ali Abbasi, Asstt.Mukhtiarkar, Karachi Central for Respondents.

Mr. Muhammad Zahid Khan, Deputy Attorney-General, along with Mr. Muhammad Najeeb, Joint Provincial Election Commissioner, Sindh, Mr. S. Rashid Hussain, Election Officer and Mr. Asadullah Hanjrah, Law officer, Election Commission.

Mr. Ahmed Ali Ghumro, Advocate for Interveners (in C.P. No. D-4803 of 2013).

Mr. Shahnawaz Dahri, Advocate for Interveners (in C.P. No. D-4763 of 2013).

Mirza Sarfraz Ahmed, for Interveners (in C.P. No. D-5369 of 2013).

Dates of hearing: 19, 20, 23 and 24.12.2013.

Judgment

Muhammad Ali Mazhar, J.--This common judgment will dispose of all the aforesaid constitutional petitions filed by the petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The petitions have been brought to challenge the delimitation process carried out and completed by the Government of Sindh for various Union Committees, Union Councils, Town Committees, Municipal Committees, Municipal Corporation and Metropolitan Corporation(s) in the Province of Sindh. The petitioners have also questioned and assailed the Notifications whereby the Deputy Commissioners of the respective districts were appointed Delimitation Officers in respect of local councils established under the Sindh Local Government Act, 2013. Some of the petitioners have also challenged the vires of amendments made in the Sindh Local Government Act, 2013 through Sindh Local Government (Third Amendment) Ordinance, 2013 which was promulgated on 13.12.2013. Keeping in view the exigency and urgency in the matter, all learened counsel appearing for the parties, the petitioners present in person and the learned Advocate General Sindh agreed that let all the aforesaid petitions be heard and disposed of at katcha peshi stage and they argued their cases extensively and comprehensively.

1. Dr. Farogh Naseem, learned counsel for the petitioner in C.P. No. D-5098/13 argued that the petitioner is one of the leading political parties and in the last general elections it had secured third highest votes and presently it has 25 numbers of seats in National Assembly and 7 members in Senate and 51 seats in the Provincial Assembly of Sindh. He referred to the definition of word "population" provided under Section 3 of the Sindh Local Government Act, 2013 (hereinafter referred to as Act, 2013) according to which the population means the population in accordance with the last census officially published, which was held in the year, 1998. He referred to Paragraph 5 of the petition in which he has shown us a table highlighting five districts of Karachi which includes the urban and rural population both. After promulgation of the Act, 2013 the same was amended on 2.11.2013 through Sindh Local Government (Amendment) Act, 2013 whereby the Schedule-I part "C", the population in Union Council was amended within the range of 10,000 to 15,000 and" population of Wards in Town Committee population was figured between 2000 to 3000 while the population in the Union Committee in Metropolitan Corporation fixed between 40,000 to 50,000. Through the same amendment the proviso attached to Section 15 in the original Act of 2013 was omitted. Meanwhile, the 2nd Amendment Ordinance, 2013 came into effect and sub¬section (1) of Section 15 whereby after the word `'district" the words "except Karachi Division" was added.

2. He further argued that on 12.11.2013, a notification was issued by the Secretary to Government of Sindh, Local Government Department whereby it was notified that consequent upon the amendment in Sindh Local Government Act, 2013, the District Council Karachi has ceased to exist. It was further stated in the notification that Union Councils finalized during delimitation process in the erstwhile District Council Karachi shall be treated as Union Committee in the respective District Municipal Corporation. Learned counsel argued that this notification was issued illegally as there was no lawful justification to treat the delimitation of Union Councils as delimitation of Union Committees. He further argued that in the original Act, 2013 there was no limit of population attached in part "C" of Schedule-I but it was provided that population of Union Council and the Union Committee would be as may be determined by the Government. He further argued that due to wrong process, a notification was issued on 21.11.2013 in exercise of powers conferred by the Section 8 of the Act, 2013 whereby the Government delimited the rural areas of the Union Councils in Karachi Division as per Schedule appended to the notification, through which 20 Union Committees and 21 Union Councils in District Malir have been created. He further argued that two more Union Councils Shah Mureed and Mai Garhi, which were otherwise falling in District East Karachi were also inducted in District Malir in order to manipulate the electoral college. He further argued that one more Union Council Gabopat was in district Karachi West has now been inducted into District South unlawfully.

3. The learned counsel also referred to the delimitation proposal 2013 submitted by the Deputy Commissioner Karachi, South to the Commissioner Karachi on 25.10.2013. Learned counsel argued that in the proposal population of 17 Union Committees has been submitted on the basis of estimation, as according to him the delimitation was required to be made according to census carried out in the year 1998. He further argued that 05 more Union Committees have been shifted from District East to District Malir vide notification dated 21.11.2013 in order to manipulate the electoral college. It was further averred that during the pendency of this petition through which several unlawful Acts were under challenge, the Government of Sindh promulgated the Sindh Local Government (Third Amendment) Ordinance, 2013 on 13.12.2013, but it was made effective from 16.9.2013. During the course of hearing, an application under Order 6 Rule 17 CPC was filed by learned counsel for the petitioner along with copy of amended petition challenging the Third Amendment Ordinance. Copy of the application was supplied to learned Advocate General and he put to notice under Order 27-A C.P.C. The application was allowed and amended petition was taken on record.

4. Through the amended petition, the petitioner has also challenged Section 3 and 8 of the Third Amendment Ordinance, 2013. According to the last amendment made through Section 8 in Schedule-I part "C" in clause (b) under the heading "Union Committee in Metropolitan Corporation" for the figures 40,000 to 50,000, the figures 10.000 to 50,000 have been substituted. He argued that this huge fluctuation and inflation in the figures have been made in order to commit gerrymandering and ruling party wants to win over through gerrymandering and unlawful means. Vast discretion has been conferred upon through this amendment and it is left at the leisure and pleasure of the Government to delimit any Union Committee to satisfy their own whims within the fluctuated figure of population limit ranging from 10,000 to 50,000, while through the earlier amendment it was only 40,000 to 50,000 which could be treated the marginal and reasonable fluctuation to some extent, but at present huge fluctuation and inflation has been created without any lawful justification and to discriminate amongst the population of various Union Committees so the mala fide and nefarious aims and objectives of the gerrymandering may be achieved. Learned counsel also assailed another amendment made in Section 13 of the original Act of 2013, a proviso has been added through which unbridled powers have been given in the hands of delimitation officer that if he reaches to the conclusion that an area which is rural, has acquired the status of urban area at the time of delimitation, he may declare such rural area to be urban area and such area shall be deemed to be an urban area.

5. He further argued that the proviso added in Section 13 with retrospective effect cannot be read in isolation but through this amendment an attempt has been made again for the purposes of gerrymandering to isolate the sub-section (1) of Section 13 so the basic requirement for inviting objections from the residents of an area may be dispensed with and in the haphazard way or manner any rural area may be inducted within the urban area without fulfilling the basic requirements of law. He further argued that all the amendments made in the. Third Amendment and the process adopted for the delimitation is in utter violation of Article 25 of the Constitution. The Government radically disturbed the concept of uniformity of population by creating such irrational disparity in which it is difficult for the election commission to conduct the Local Government Elections in Sindh honestly, justly, fairly and in accordance with law and if any election is conducted in a non-transparent manner it will be a serious violation of Articles 218 & 219 and 9, 17 and 25 of the Constitution of Pakistan. He argued another aspect as well that each Union Committee will get equal funding, which will be a grave disparity and discrimination that Union Committee of 50,000 and the Union Committee of 10,000 population will get the same finance and funding. This disparity has been created so that a Union Committee with 10,000 population and Union Committee with 50,000 population shall have same voting rights in indirect elections which is also sequel of gerrymandering and also against the Article 25 of the Constitution.

6. He further referred to Section 34 of the Sindh Local Government Act, 2013 in which it is clearly provided that the Election Commission of Pakistan shall organize and conduct the elections and to make necessary arrangement as are necessary to ensure that the election is conducted honestly, justly, fairly and the corrupt practice are guarded against. In the end learned counsel prayed that the Notifications dated 12.11.2013, 21.11.2013 and 25.10.2013 (annexures F, G, H and J) relating to delimitation and final proposal for the District Malir and South be declared as ab initio void and illegal. He also prayed that direction be issued to the respondents to conduct delimitation strictly as per census of 1998 and the population standard given in the Act 2013 for Union Committees. He further prayed that Section 3 and 8 of the Sindh Local Government (Third Amendment), 2013 so also Section 10(2)(b) of Sindh Local Government Act, 2013 be declared unconstitutional and void ab initio. In support of his arguments he relied upon the following case law and material.

(1) PLD 1958 S. C. 41 (M/s. East and West Steamship Co., v. Pakistan and others). Equality is not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom it is conferred. If this is the correct position, the only question that would then arise would be the delegation of legislative power. If a statute declares a definite policy, there is a sufficiently definite standard for the rule against the delegation of legislative power, and also for equality if the standard is reasonable. If no standard is set up to avoid the violation of equality, those exercising the power must act as though they were administering a valid standard. For this reason there is a need for a judicial review to see whether or not power delegated has been exercised arbitrarily. Willi's Constitutional Law, 586.

(2) PLD 1999 S. C. 1026 (Federation of Pakistan and others v. Shaukat Ali Mian and others) Article 25. Equality of citizens. Discriminatory provision. Concept. Marked distinction exists between a provision of a statute which may be ex facie, discriminatory and a provision thereof which may be capable of being pressed into service in discriminatory manner. Former provision would be liable to be struck down on the ground of violation of Article 25 of the Constitution but the latter provision cannot be struck down on the ground that same was capable of being used in discriminatory manner. Any discriminatory action which may be taken pursuant to such provision can be struck down.

(3) 2004 SCMR 1903 (Ghulam Mustafa Insari and others vs. Government of the Punjab and others). Courts, generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is, ex facie discriminatory or capable of discriminatory application and otherwise clearly violative of any provision of the Constitution.

(4) PLD 2010 S. C. 265 (Dr. Mobashir Hassan and others v. Federation of Pakistan and others). Articles 184, 185 & 186. Duty is cast upon the Supreme Court that it should normally lean in favour of constitutionality of a statute and efforts should be made to save the same instead of destroying it. Principle is that law should be saved rather than be destroyed and the Court must lean in favour of upholding the constitutionality of legislation, keeping in view that the rule of constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments, unless ex facie, it is violative of a constitutional provision. Where a statute is ex facie discriminatory but is also capable of being administered in a discriminatory manner and it appears `that it is actually being administered to the detriments of a particular class in particular, unjust and oppressive manner then it has been void ab initio since its inception.

(5) PLD 2010 Federal Shariat Court 1 (Dr.Muhammad Aslam Khakhi vs. State and others). Fundamental rights guaranteed by the Constitution are firmly based upon various Injunctions of Islam. Presumption of constitutionality is attached to every legislative instrument and Courts generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is, ex facie discriminatory or capable of discriminatory application and otherwise clearly violative of any provision of the Constitution.

(6) 1991 SCMR 1041 (LA. Sharwani & others v. Govt. of Pakistan). Article 25(1). All citizens are equal before law and entitled to equal protection of law. State, however, is not prohibited to treat its citizens on the basis of a reasonable classification. Reasonable classification. Basis or criterion for classification as to avert violation of Article 25(1). Clause (1) of Article 25 of the Constitution of Pakistan (1973) enshrines the basic concept of religion of Islam. However, this is now known as the golden principle of modern jurisprudence, which enjoins that all citizens are equal before law and are entitled to equal protection of law. However, the above clause does not prohibit treatment of citizen by a State on the basis of a reasonable classification.

(7) 1992 SCMR 563 (Inamur Rehman v. Federation of Pakistan). Article 25. Equal protection to all is the principle on which rests justice tinder the law. Law should be saved rather than destroyed and Court must lean in favour of upholding the Constitutionality of a legislation. Rule of Constitutional interpretation was that there was a presumption in favour of the Constitutionality of legislative enactment. Where, however, there was on the face of a statute no classification at all and no visible differentia, with reference to the object of the enactment as regards the person or persons subject to its provision, then the presumption was displaced. Court could not be asked to presume that there must be some undisclosed or unknown reasons for subjecting certain individuals to discriminatory treatment, for in that case Court would be making a travesty of the Fundamental Right of equality before law enshrined in Article 25.

(8) 1996 SCMR 700 (Central Board of Revenue v. Seven-up Bottling Company Pvt. Ltd.). Article 25, Constitution of Pakistan (1973), guarantees for equality of all citizens before law and their entitlement to get equal protection of law. Article 25 also casts a duty on the Government to ensure enactment of laws which should provide equal protection to all citizens. Such rights of citizens cannot be defeated on the ground of waiver.

(9) 2002 SCMR 312 (Zaman Cement Company Pvt. Ltd. v. Central Board of Revenue & others). Article 25. Legislature and other Taxing Authorities have power to classify persons or properties into categories and subject them to different rates of taxes, but there exists no power to target incidence of tax in such a way that similarly placed persons be dealt with not only dissimilarly, but discriminatingly. Function of judiciary is not to legislate or question the wisdom of Legislature in making a particular law nor it can refuse to enforce law even if the result of it be to nullify its own decision, provided the law is competently made. Vires of law can only be challenged being violative of any provision of the constitution, but not on the ground that it nullifies the judgment of superior Court.

(10) Zaibtun Textile Mills Ltd. v. Central Board of Revenue). Delegation of legislative powers. Legislature can delegate authority to subordinate or outside authorities for carrying laws into effect and operation. Such power of delegation, inherent and ancillary to legislation. Legislature retains legislative powers intact to do away with agency. Constitutional theory underlying doctrine of impossible delegation of legislative power, held, not applicable. Constitution does not lay down and prescribe limits within which such delegation permissible. . Competency of Legislature to delegate its power to be determined by Courts in exercise of their inherent judicial power under Constitution. No uniform test to determine competency of legislature to delegate such power. Constitution of Pakistan.

(11) PLD 2012 SC 923 (Baz Muhammad Kakar and others v. Federation of Pakistan and others). Unconstitutional part of a statute. Severance from the remaining (valid) part of statute. Scope. Doctrine of severability permitted a Court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation o[ any uncontested or valid remainder, but if the valid portion was so. closely mixed up with the invalid portion that it could not be separated without leaving an incomplete or more or less mixed remainder, the Court would declare the entire Act void.

(12) 2013 SCMR 1752 (Contempt proceedings against Chief Secretary, Sindh and others). Neither a non-civil servant nor a civil servant from non-cadre post could be transferred to a cadre post in Government by way of deputation as same would affect rights of civil servants serving in Government and create sense of insecurity in them. Impugned legislations meant for specific class of persons was violative of Article 25 of the Constitution and were violative of Articles 143 & 240 of the Constitution and would encourage nepotism and discourage transparent process of appointment of civil servants in prescribed manner. Provincial Assembly could not change structure of service laws in conflict with provisions of Article 240(b) or Article 242(1B) of the Constitution. Benefits extended to different employees or civil servants through impugned legislations would not attract principle of locus poenitentiae. Supreme Court struck down impugned legislations. Principles. Mala fide cannot be attributed to the legislature, but if a legislature deliberately and repeatedly embarks upon a venture to nullify considered judicial verdict in an unlawful manner, trample the constitutional mandate and violate the law, then it is difficult to attribute bona fide to it either.

(13) PLD 2012 SC 681 (Workers' Party Pakistan and others v. Federation of Pakistan and others) Article 218(3) Election Commission. Duties and powers. Words "justly", "fairly" and "honestly" used in Article 218(3) of the Constitution. Implications. Said words implied that the Election Commission was under a direct constitutional obligation to exercise all powers vested in it in a bona fide manner, meeting the highest of standards and norms, therefore, as a natural corollary all discretionary powers were also to be exercised and tested against such standards. Election Commission was charged with the duty to organize' andconduct the election'. Article 218(3) implied that the Election Commission was responsible not only for conducting the election itself, but also for making all necessary arrangements for the said purpose, prior to the Election Day. Constitution conferred such responsibility on the Election Commission and ensured that all activities both prior, on and subsequent to Election Day, that were carried out in anticipation thereof, adhered to standards of justness and fairness, were honest, in accordance with law and were free from corrupt and/or illegal practices.

(14) PLD 1993 S. C. 473 (Mian Muhammad Nawaz Sharif v. President of Pakistan). Right conferred by Article 17 includes not merely the right to form a political party but comprises also other consequential rights. Guarantee "to form a political party" must be deemed to comprise also the right by that political party to form the Government wherever the said political party possesses the requisite majority in the Assembly. Any unlawful order which results in frustrating such activity, by removing such party from office before the completion of its normal tenure would, therefore, constitute an infringement of Fundamental Right guaranteed in Article 17(2) of the Constitution.

(15) PLD 2009 Lahore 268 (Muhammad Umer Rathore v. Federation of Pakistan). Theory of "Reading Down". Applicability. Scope. "Reading Down" theory is a rule of interpretation, resorted to by the Courts, when provision of law is found to be such that it offends fundamental rights or it falls outside the ambit of competence of a particular legislature.

(16) PLD 1997 S. C. 582 (M/s.Elahi Cotton Mills Ltd. v. Federation of Pakistan). Theory of reading down is a rule of interpretation which is resorted to by Courts when they find a provision read literally seems to offend a fundamental right or falls outside the competence of the particular legislature.

1. The learned counsel for the petitioner referred to the book "Treatise on Constitutional Law, Substance and Procedure" (Third Edition) by Ronald D. Rotunda, Volume 3, in which various dictums of U.S. Supreme Court have been referred which are as under:--

(a) In Baker v. Carr, two years after Gomillion, the Court found reapportionment cases to be justiciable based on the more general equal protection clause of the Fourteenth Amendment Colegrove was distinguished and the Court held that debasement of a person's vote by malapportionment is a violation of the equal protection guaranty of the Fourteenth Amendment. This claim was significantly different from those based on the nonjusticiable republican form of government clause. Ref. 369 U.S. 186, 82 S. Ct. 691, 7 L.Ed.2d 663 (1962) on remand 206 F.Supp. 341 (M.D. Tenn. 1962).

(b) The value of the right recognized in Baker was explained in Reynolds v. Sim which created the one person, one vote principle grounded in the equal protection clause. Ref. 377 U.S. 533, 84 S. Ct. 1362, 12 L.Ed.2d 506 (1964), rehearing denied 379 U.S. 870, 85 S. Ct. 12, 13 L.Ed.2d76 (1964).

(c) In Sailors v. Board of Education, the Supreme Court approved the choosing of county school board members by a method whereby each local school board appointed only one delegate and was allowed only one vote at the caucus convened to elect the county school board, even though the districts represented by the local school boards were of disproportionate population. Ref. 387 U.S. 105, 87 S. Ct. 1549, 18 L.Ed.2d 650 (1967).

(d) In Board of Estimate v. Morris, the Justices unanimously ruled that New York City's Board of Estimate was subject to the one person, one vote principle. The Board of Estimate was composed of the elected presidents of each of the city's five boroughs, each of whom cast one vote on the Board, and three officials who were elected by city-wide ballot (the city's mayor, comptroller, and city council president). There was a vide disparity in the populations of each of the boroughs, so that the citizens living in the least populous boroughs had a greater impact on the election of the Board than did persons living in the most populous boroughs. The Board did not have general legislative authority over the city but it did perform a variety of functions similar to those performed by municipal governments, including the calculations of certain utility and property taxes, zoning authority, fixing the salaries of city officers, and a sharing of legislative function with the city council regarding capital and expense budgets. The Court found that the array of powers possessed by the Board were sufficient to bring it within the requirements of the equal protection clause one person, one vote principle.

(e) In Federal Elections. In Wesberry v. Sanders the Supreme Court required states to draw their congressional districts so that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's. Ref. 276 U.S. 1,84 S. Ct.526, 11 L.Ed.2d 481 (1964).

(f) In White v. Weiser the Court invalidated a reapportionment plan where the differences were even smaller than Kirkpatrick. In White the average deviation of all districts from the ideal was .745%, the largest district exceeded the ideal by 2.43% and the smallest district under the ideal by only 1.7%. The plan was rejected in favour of one where the largest district exceeded the ideal by .086% and the smallest was under the ideal by .063%. Again it should be remembered that the one person, one vote requirement in federal elections is based on Article 1 rather than the equal protection clause of the Fourteenth Amendment. Although the Supreme Court formally bases congressional redistricting principles on Articles 1 & 2 of the Constitution, the underlying principle that justifies judicial scrutiny of such state activity is one of guaranteeing equality in the power of voters within a state. The Court has not ruled out all deviations from mathematical equality between congressional districts within a state, even though it has found that no deviation in this area is so small that it may be considered de minimis and permissible under Article 1, & 2 without any justification. The Court, in reviewing congressional district, maps, first requires those attacking the .districting plan to demonstrate that the population differences between congressional districts could have been reduced or eliminated by a good faith effort to draw districts of equal population. If a plaintiff can demonstrate that the population differences are not a product of a good faith effort to achieve equality, the state will be required to prove that each significant variance between districts was necessary to achieve some legitimate goal. Ref. 412 U.S. 783, 93 S. Ct. 2348, 37 L.Ed.2d 335 (1973), 421 U.S. at 786, 796-97, 93 S. Ct.at 2350, 2355-56, See also, Karcher v. Daggett, 462 U.S. 725, 103 S. Ct. 2653 77 L.Ed.2d 133 (1983) disparity between largest district and smallest district of 0.6984% plan invalidated), on remand 580 F.Supp.1259 (D.N.J.1984) and Karcher v. Daggett, 462 U.S. 725, 731, 103 S,Ct. 2653, 2660, 77 L.Ed.2d 133, 143 (1983) on remand 580 F.Supp. 1259 (D.N.J.1984).

(g) In Mahan v. Howell the Court formally recognized that while population alone is the primary criterion to judge a congressional districting scheme, "broader latitude has been afforded the States under the Equal Protection Clause in state legislative redistricting ……" In Mahan the most overrepresented district exceeded the ideal by 6.8%, the most underrepresented exceeded the ideal by 9.6%. These variations were found justified by the state policy of respecting political subdivision boundaries. Subsequently, de minimis variations were found to require no justifications at all; in a case where the most over represented district exceeded the ideal by 5.8% and the most underrepresented was under by 4.1% for a total variation of 9.9%, the Court held that 9.9% total variation does not make out a prima facie case and does not require any special justification. However, deviations of up to 16.5% for state senate districts and 19.3% for state house of representative districts have been held to violate the one person, one vote principle. While the Court has not created a special test for local governmental units, it seems clear that deviations in the one person, one vote principle will be held to, at most, no higher a standard than that imposed on state governments. The Court has upheld a deviation of 11.9% for a local government unit at a time before it recognized the reasonableness test for state governments. Ref. 410 U.S. 315, 93 S. Ct. 979, 35 L.Ed.2d 320 (1973) rehearing denied and opinion modified, 411 U.S. 922, 93 S. Ct. 1475 36, L.Ed.2d 316 (1973) and Connor v. Finch, 431 U.S. 407, 97 S. Ct. 1828 52 L.Ed.2d 465 (1977).

(h) The one person, one vote principle is not the only criteria, for challenging or evaluating the district lines drawn for municipal, state, or federal elections. Even though a legislative districting map complies with the one person, one vote principle, it will be invalid if drawn upon the basis of constitutionally improper criteria. If the district lines were drawn for the purpose of diluting the voting strength of minority racial or ethnic groups, the law would violate the equal protection clause. Ref. Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L.Ed.2d 110 (1960).

1. He further referred to ACE Electoral Knowledge Network, Guiding Principles of Boundary Delimitation.

(i) Representativeness

Electoral district boundaries should be drawn such that constituents have an opportunity to elect candidates they feel truly represent them. This usually means that district boundaries should coincide with communities of interest as much as possible. Communities of interest can be defined in a variety of ways. For example, they can be geographically-defined communities delineated by administrative boundaries or physical' features such as mountains or islands, or they can be "communities" that share a common race, ethnic or tribal background, or the same religion or language. If districts are not composed of communities of interest, however defined, it may be difficult for representatives to serve the constituency well.

(ii) Equality of Voting Strength

Electoral district boundaries should be drawn so that districts are relatively equal in population. Equally populous districts allow voters to have an equal weighted vote in the election of representatives. If, for example, a representative is elected from a district that has twice as many voters as another district, voters in the larger district will have half the influence of voters in the smaller district. Electoral districts that vary greatly in population a condition referred to as "malapportionment" violate a central tenet of democracy, namely, that all voters should be able to cast a vote of equal weight. The following are two standards developed to reflect this principle, one offered by the Organization for Security and Cooperation in Europe (OSCE) and one by the UN Committee on Human Rights (UNCHR):

\ The delineation of constituencies in which elections are conducted must preserve the equality of voting rights by providing approximately the same ratio of voters to elected representatives for each district. Existing administrative divisions or other relevant factors (including of a historical, demographic, or geographical nature) may be reflected in election districts, provided the design of the districts is consistent with the equality of voting and fair representation for different groups in society. (OSCE, "Inventory of OSCE Commitments and other Principles for Democratic Elections).

\ The principle of one person, one vote must apply, and within the framework of each State's electoral system, the vote of one elector should be equal to the voter of another. The drawing of electoral boundaries and the method of allocating votes should not distort the distribution of voters or discriminate against any group and should not exclude or restrict unreasonably the right of citizens to choose their representative freely. (UN Committee on Human Rights, General Comment 25, "The Right to Participate in Public Affairs, Voting Rights and the Right to Equal Access to Public Service"). Ref. [aceproject.org/ace-en/topics/bd/bd20].

1. He further referred to "Constitutional Law" (Sixth Edition) by William B. Lockhart, Yale Kamisar, Jesse H. Choper and Steven H. Shiffrin:--

(1) Wesberry v. Sanders 376 U.S. 1, 84 S. Ct. 526, 11 L.Ed.2d 481 (1964), per Black J., struck down the Georgia congressional districting statute which accorded some districts more than twice the population of others: "The command of Art. I, & 2, that Representatives be chosen `by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.

(2) Avery v. Midland County, 39 U.S. 474, 88 S. Ct. 1114, 20 L.Ed.2d 45 (1968)" The Midland County (Tex.) Commissioners Court was elected from single-member districts of unequal population--414; 828; 852; and 67, 906 (the city of Midland, the country's only urban center). The Court, per WHITE, J., finding that the Commissioners Court had "general responsibility and power for local affairs," held that when a state "delegates lawmaking power to local government and provides for the election of local officials from districts [those] qualified to vote [must) have the right to an equally effective voice in the election process. Under the majority's pronouncements, however, this rational comprise would be forbidden: the metropolitan government must be apportioned solely on the basis of population if it is a `general' government."

1. Mr.Iqbal Qadri, Advocate for the petitioner in C.P.No. D-5080/ 13 and Mr.Khizar A. Zaidi, Advocate for the petitioner in C.P.No. D-5091/13 have adopted the arguments of Dr.Farogh Naseem, Advocate for the petitioner in C.P.No. D-5098/13.

2. Mr.Abdur Rehman, Advocate for the petitioners in C.P.Nos.D-5023/13 and 5294/13 referred to sub-section 2(b) of Section 8 of the Sindh Local Government Act, 2013 and argued that no district council or union council can be inducted in the urban area. He further referred to Section 12 of the same Act which defines the characteristics of local area and further provides that an area declared as Union, Town, Municipality or Corporation shall, as far as possible be compact and contiguous with territorial unity. He then referred to the guidelines for delimitation issued by the Government in which though one of the criteria for delimitation is that the area should be as far as possible compact and contiguous with territorial unity and the boundaries of local council should be as far as possible not cross the revenue unit viz. Deh Tapa, Circle, Taluka or District. According to learned counsel through the earlier amendment in the population of town committee some fluctuation was made but in the Third amendment radical changes were made to upset and frustrate the delimitation guidelines. He further referred to another Notification dated 4.10.2013 whereby guidelines were issued for delimitation process to ensure that existing census blocks may not be disturbed and Provincial Election Commission be consulted during delimitation process in order to avoid any complication/duplication, the delimitation process should be based on 1998 population census and it will be completed as per schedule given in the advertisement of Local Government Department. He further referred to the Notification dated 10.10.2013 whereby revised population criteria was conveyed for delimitation process whereby the population of the union committee in Metropolitan Corporation was raised from 40,000 to 50,000. He further referred to the Notification dated 21.10.2013 conveyed to the Commissioners and Deputy Commissioners in Sindh in which again the category and population with exact figures were communicated with the expectation that the local councils particularly union councils and union committees (wards) will increase up to 30% of the exiting number. Learned counsel argued that this inflation and the rider of 30% both on mere expectation has been retained with the sole aim and objectives of gerrymandering, which is violation of Section 12 of the Sindh Local Government Act, 2013, which provides that the area as far as possible be compact and contiguous with territorial unity and it amounts to not only disturbing the territorial unity but also redefining it.

3. The learned counsel further referred to Notification dated 12.11.2013 whereby it was notified that union councils finalized during delimitation process for District Councils Karachi shall be treated as union committees in respect of District Municipal Corporation, learned counsel made much emphasis that this too is in violation of Section 8 of the Act. Learned counsel further referred to proposed wards/union committees for D.M.C. Malir, which is available at page-265 of the Court file, which shows that voles as per electoral roll 2012 in Khuldabad, Qaidabad and Cattle Colony are 25789, 18728 and 26922 while in the final delimitation proposal the population of these three wards shown as 42918, 40653 and 41640 respectively. No justification has been given in the final proposal for this fluctuation and inflation, which is evident to show the intention of gerrymandering at vast level.

4. He concluded that the notification appointing delimitation officer as Election Tribunal (annexure E) is mala fide and illegal ab initio and unconstitutional. He further argued that the Notifications dated 10.10.2013 and dated 21.10.2013 (annexure G/2, G/3, G/4 & H-1) all are illegal in which criteria for delimitation was provided in violation of the various sections of Local Government Act, 2013. On the same ground he also challenged the delimitation carried out in the H.M.C. whereby Qasimabad was excluded from the limits of Hyderabad Municipal Corporation. The learned counsel argued that that Qasimabad is part of H.M.C. but it was unlawfully separated vide notification dated 10.7.2013. It was notified that Municipal Committee Qasimabad shall be separate entity for administrative and function purposes. He further pointed out that in the month of June, 2010 a similar notification was issued to delimit the local area of union council of Taluka Qasimabad District Hyderabad against which the petition was filed by some other petitioners bearing C.P.No. D-3537/2010. Learned counsel argued that the learned division bench of this Court vide order dated 8.2.2011 suspended the impugned notification. Learned counsel stated at bar that the C.P. is still pending and interim orders are still in force and despite interim orders a fresh attempt has been made to separate the Qasimabad from H.M.C. which is unlawful.

5. Mr. Inayatullah Morio, Advocate for the petitioner in C.P. No. D-5172/13 argued that the guidelines issued for delimitation were not adhered to by the delimitation officer and objections were also not invited. He argued that new delimitation exercise and process should be ordered in the entire Larkana Division in view of Section 11 to 14 of the Sindh Local Government Act, 2013. He referred to page-21 of the Court file which is population criteria which provides that the ward in a municipal committee and town committee excluding corporation shall consist of population of 2000 while through the first amendment the population of ward in town committee was amended from the figure 2000 to 3000 and ward in municipal committee between 4,000 to 5000 while he shown us page-25 of the Court file which is related to delimitation of urban areas/municipal committee/town committee/ward of District Kambher / Shahdadkot, which depicts that the ward appearing at Sr.No. 4,9 and 12 are below the population of 2000. He further argued on oral motion that the Third Amendment Ordinance is also unconstitutional in which excessive powers and discretion has been given to the delimitation officers to complete the exercise of delimitation with sole view to favour the ruling party which is unconstitutional.

6. Mr. Narain Das Motiani, Advocate for the petitioner in C.P.No. D-4803/13 argued that the delimitation proposal dated 25.10.2013 was not published under Sub-section (3) of Section 8 and Section 13, which is against Section 153-A of the Sindh Local Government Act, 2013, which provides that the powers conferred on any person shall be exercised fairly, justly and in public interest. He referred to part "C" of Schedule-I of Local Government Act, 2013 and argued that the population of union council is between 10,000 to 15,000 while he shown us page-49 of the Court file in which many entries of the union council for rural population and even in the town committees of the proposed delimitation plan of Taluka Daur is more than 15,000." Learned counsel argued that even the delimitation officers have violated the guidelines provided for the delimitation. Learned counsel also pointed out the appeal filed before the Commissioner Hyderabad Division which was disposed of by the appellate tribunal through vide order dated 8.11.2013 in a slipshod manner. The appellate tribunal simply referred to the objection in first Paragraph and after reproducing the comments of delimitation officer he concluded that there was no flagrant violation or deliberate attempt on the part of delimitation officer and he dismissed the appeal.

7. What we have observed from the comments submitted by the delimitation officer that he himself admitted that the population of wards is slightly inconsistent. He further admitted that the areas adjoining Daur have begun to develop which shows that the rural area has been inducted into urban area in violation of Section 13 of the Local Government Act, 2013. He further admitted that the survey Nos.111 and 112 falling within ward No. 8 have shown new ward No. 10 erroneously due to typographic error. Despite admission of the delimitation officer, the appeal was dismissed even no order was passed for the correction of the alleged typographic error. Learned counsel concluded that the entire delimitation process was conducted in a nontransparent manner hence the notification issued on 26.9.2013 whereby the Chief Minister appointed D.Cs as delimitation officers should be declared void and unconstitutional and further directions be issued that the delimitation exercise should be made afresh.

8. Four interveners Muhammad Yasin Brohi and others have filed Misc. Application No. 3317/13 in this C.P. under Order 1 Rule 10 CPC through their counsel Mr.Ahmed Ali Ghumro. With the consent of the petitioner's counsel and learned A.G. they are impleaded as Respondent Nos. 6 to 9. Counsel for the petitioner is directed to file amended title. Mr.Ahmed Ali Ghumro argued that the contents of Para 9 and 10 of the petition are based on concealment of facts. He further argued that Deh Nassrat has been commercialized. The petitioner has filed this petition with mala fide intention to deprive the proposed interveners from their representation in the local Govt. election. He fully supported the order passed by appellate tribunal Hyderabad Division. He further argued that Sindh Government is competent to appoint delimitation officer and the delimitation was carried out in view of the guidelines provided by the Government of Sindh. He concluded that this petition is liable to be dismissed.

9. Mr. Muhammad Aslam Bhutta, Advocate for the petitioner in C.P.No. D-5104/13 at the very outset invited our attention to the page-61 of the Court file which is an appellate order passed by appellate tribunal Hyderabad Division. This petition also relates to the town committee Daur district Shaheed Benazir Abad in which also the appeal was dismissed summarily. The objection of the appellant was noted in first Paragraph then the comments of the Delimitation Officer quoted and finally the appeal was dismissed by observing that there was no flagrant violation. In this case also the delimitation officer admitted slight inconsistency in population of wards. The learned counsel argued that the ward No. 1 to 10 are rural areas and these wards have been inducted in the town committee as done by the delimitation officer in other cases and he pleads discrimination in the process of delimitation. He further argued that ward No. 3 was one ward but it was converted into two wards. Despite induction of two wards in ward No. 3 even then the population is less than 2000. He prayed that Respondent No. 1 to 3 be directed to delimit town committee Daur district Shaheed Benazirabad. He prayed that the Respondent No. 1 to 3 be directed to increase the wards in the urban areas of town committee Daur with uniform population.

10. Mr. Mureed Ali Shah petitioner in person in C.P.NO.D-4521/2013 adopted the arguments of Dr.Farogh Naseem, on questions of law, however he referred to page-21 which is final delimitation proposal for town committees and union councils of District Naushahro Feroze, Taluka Kandiaro. He pointed out that in many wards the population is less than 2000 while it was to be remained between 2000-3000. He further argued that despite the population which is less than 2000, at least twelve wards were made unnecessarily. He then referred to page-23 and argued that union council Dabhro has been converted into town committee which delimitation officer could not do. He further argued that no survey of urban and rural area has been carried out in terms of Section 8, 13, 14 and 17 of the Local Government Act, 2013. He further referred to page-25 and argued that the Union Council Khanwahan has been changed to Union Council Shaheed Muhammad Nawaz Khushik, which is utter violation of Section 16 of the Local Government Act, 2013 in which names of U.Cs cannot be changed without due process. He further referred to page-27 to show that names of Union Council Mohabat Dero Jatoi has been changed to Union Council Shaikhani, which is again violation of law. He further pointed out page-29 to show that the population in Union Council Ghulam Shah is 8906 while allowable population in union council is 10,000 to 15,000. He also referred to page-31 and argued that Union Council Ghanghra has been converted into Union Council Kandiaro Rural which population is also 9814. He then referred to Union Council Jan Noor Allah where the total population is 18468 while cut off line is 10,000 to 15,000. He then referred to page-37 relating to Taluka Mehrabpur District Naushahro Feroze, in which the population of various wards is less than 2000. He further referred to page-39 to show that Ward No. 2 and Ward No. 17 both are two different wards with different population but their boundaries are shown to be same. Similar treatment was meted out with `Ward No. 3 and 18 and some rural areas have been merged into urban area. At page-43 Union Council Halani converted into Town Committee by adding rural area into urban and many wards mentioned in the delimitation proposal is less than 2000. He also pointed out page-47-B, the name of Union Council Bhority has been changed to Union Council Shaheed Sardar Muhammad Alam without complying the due process. He also referred to page-47-C which relates to the Town Committee Darya Khan Mari and argued that the population is required to be 10,000 to' 15,000 while it is only 7556. The Taluka Naushahro Feroze, Town Committee Padidan has 12 wards but the population of each ward is less than 2000. He further referred Page No. 47-F which is related to Union Council Mithani, which has been converted into town committee by means of adding rural area into urban area. He further pointed out similar anomalies in relation to different Union Councils and Town Committees. He referred to Section 10 of the Local Government Act, 2013 and argued that the population of Union Councils in a district is required to be uniform and the boundaries of Union Councils shall not cross the limit of revenue of taluka in a district.

11. The petitioner also referred to the election rules framed on 27.11.2013 and argued that under the same rules subject of delimitation has also been touched. He referred to Schedule-VII of the Local Government Act, 2013 and argued that the entry No. 1 under which the election rules for delimitation has unlawfully been made only relates to the organization and conduct of the elections and nothing to do with the subject of delimitation. He further argued that all illegalities have been committed by the Government in the delimitation exercise to commit gerrymandering and to achieve favorable results in the local government elections in Sindh. He further argued that the way in which the delimitation exercise has been completed, there is no possibility that Election Commission would enable to conduct the elections in terms of Section 34 of the Local Government Act, 2013 and the constitutional mandate according to which it is their duty to ensure that the election is conducted honestly, justly and fairly and the corrupt practices are guarded against. He further argued that by virtue of Section 4 of Third Amendment Ordinance promulgated on 13.12.2013 sub-section 14 has been added in Section 18 whereby formation of panel made mandatory which virtually ousted an independent candidate from arena and without panel nobody can contest the election which is the violation of fundamental right of every citizen of Pakistan and also in violation of Section 35 and 36 of the Local Government Act, 2013, which are only relevant sections through which a candidate can be disqualified. He further argued that clause (d) of Section 32 has been omitted to gain undue advantage to rig the elections under which it was provided that every voter within the union council or ward shall have only one vote irrespective of the number of members to be elected from the union council or ward. He further argued that the delimitation officer maneuvered and delimited the union councils and town committees with mala fide intention to safeguard the interest of ruling party in utter violation of Section 10 of the 2013 Act, while including the rural area in the urban area the requirement mentioned in Section 13 have been overlooked. The delimitation process is a lengthy procedure, which was required to be conducted by a neutral person as it requires expert evidence but the delimitation process was initiated and concluded under the control of M.N.As and M.P.As.

12. Learned counsel further argued that by virtue of Third Amendment Ordinance, 2013 a proviso has been added in Section 13 whereby unbridled power has been given to the delimitation officer that he may declare any rural area to be urban area, which is totally in conflict with the spirit of Section 13 of the Section 2013 Act. He concluded the arguments with the prayer that the notification appointing Deputy Commissioners as delimitation officers be declared illegal and direction be issued to Election Commission of Pakistan to conduct the Local Government Election on the basis of old delimitation and the unconstitutional amendments made in the Third Amendment Ordinance 2013 are liable to be struck down. In support of his arguments he relied upon the following case law:--

2006 SLJ 486 (Jam Mehtab Hussain and another v. Province of Sindh and others). Article 199. Land Revenue Act, 1967, Section 6. Sindh Local Government Ordinance, 2001, Section 6, 7. Delimiting. Demarcation of Talukas and delimiting/creating union councils. Notification of. Challenge to. Exercise of powers. Question of. Constitution petition in High Court impugning said notification issued by Government of Sindh vis-a-vis demarcation of various Talukas under section 6 of LRA and subsequent notification issued under section 6, 7 of SLGO delimiting/creating union councils and High Court was called upon to decide following Proposition/Controversies:--

(a) Whether under the SLGO, 2001, it is the Chief Election Commissioner or the Provincial Government which has the powers to delimit the boundaries of the Union Councils in various local areas.

(b) Whether the impugned notification issued under Section 6 of the Land Revenue Act are justiceable.

(c) Whether subsequent notification issued by the Provincial Government under section 6 and 7 of the SLGO 2001, creating new Union Councils in District Ghotki can be upheld.

Composition/delimitation/creation/setting up of Union, Taluka Town, District and City District were the sole prerogatives of the Provincial Government and no exception could be taken to the same. The Government did enjoy plenary powers under section of LRA. to sub-divide the Province into, various smaller units viz Divisions, Districts and Talukas. In instant case no visible reasons had been displayed for the purpose of delimitation of the Talukas in the manner proposed wherein said exercise had been resorted to for the specific purpose of creation of new Union Councils. Impugned notifications were set aside and declared to be without lawful authority and of no legal effect, Writ petition allowed accordingly."

1. Mr. Zafar Ali Shah, petitioner in person in C.P. No. D-4559/13 also filed an application under Order 6 Rule 17 CPC for challenging the Third Amendment Ordinance, 2013 promulgated during the pendency of his petition. Copy of the application was supplied to the learned A.G. with amended copy of petition who was already put to notice under Order 27-A C.P.C. By consent this application was also allowed and amended petition was taken on record. The petitioner referred to the population criteria attached with the guidelines issued for delimitation and argued that the population criteria of the union council was reduced to 10,000 to 15,000 from 15,000 to 20,000 with mala fide intention in order to manipulate the territorial limits of union councils. Originally 15,000 to 20,000 criteria was fixed through Notification dated 16.9.2013 which was subsequently reduced. The delimitation officer clandestinely issued a proposed delimitation report just after four days of modification without inviting public objections. The said modification was effected through a letter instead of notification in order to keep the public at large in complete darkness. As per guidelines the existing boundaries of the union councils/committees were to be kept intact as for as practicable and minimum changes were to be made but under the garb of modification entire boundary of existing councils/committees were changed. Most of the wards in town committees have less than minimum population of 2000. He shown us different town committees such as Taluka Bheria, Kandiaro, Mehrabpur and Naushahro Feroze. He further argued that various Debs/villages have been included in the town committee without fulfilling the requirements envisage under Section 13 of the 2013 Act. He further argued that mala fide is apparent on the face of record as a town committee could comprise of any population between 10,000 to 50,000 which is discriminatory and against the Article 25 of the constitution.

2. He also pointed out the violation of Section 10 of the 2013 Act which mandates a uniform population for union councils and for example he quoted Taluka Bhiria, Kandiaro, U.C. Shahcladko, Ghulam Shah, Kandiaro (Rural) Jam Noor Ullah and Ghanghro. The petitioner further argued that boundary of most of the U.Cs. and Town Committees are neither compact nor contiguous which is in contravention of Section 10 and 12 of the Act, 2013. In the nutshell the petitioner objected the entire delimitation process and he also raised allegations of gerrymandering against the government and prayed that entire delimitation exercise should be revisited without which fair elections are not possible. He further argued that the single voting right earlier provided in clause (d) of Section 32 of the Act, 2013 has been omitted deliberately with mala fide intentions to introduce illegal and unjustified amendments in future such as panel system and proxy voting which is also in contravention of the Section 33 of the Act. He argued that the panel system has been introduced under the Third Amendment for election including proxy voting which is against Article 17 and 25 of the Constitution. So far as the proviso attached with the Section 13 of the original Act 2013 in view of Third Amendment is concerned, the petitioner argued that it is a device to bestow unbridled powers to the delimitation officer who in his own discretion is allowed to declare any rural area to be urban as it deems fit. He finally prayed that the election be conducted as per councils/committees which were existed prior to the enactment of Sindh Local Government Ordinance, 2011.

3. Mr.Mehboob Awan, learned counsel for the petitioner in C.P.No,D-4763/13 which is pertaining to delimitation of District Thatta argued that Deh Karlo and Ghato have included wrongly in Union Council Khan which has been upgraded as Town Committee Var without inviting objections which is in violation of Section 10 and 13 of the Local Government Act, 2013. He further argued that now the population of newly created Town Committee Var would be about 10,000 to 12,000 and population on Deh Khan would be about 15,000 to 17,000 by adding above Deh in Town Committee, it would be much away from Var and the people of village will be in extreme trouble. He argued that the delimitation exercise should be revisited.

4. In the same petition, Hassan Ali and others have filed an application under Order 1 Rule 10 CPC for impleading them in this petition as respondents. By consent, application was allowed. Their counsel Mr.Shahnawaz Dahri, Advocate argued that Deh Karlo Ghato and Khan are already connected with the boundaries of Tapa and revenue district located in the same union council Var. He argued that all the above villages were part of union council Khan presently as Union Council Var, therefore, in the present setup of delimitation the same was rightly transformed into a town committee keeping in view the population criteria and procedure for delimitation.

5. Mr.Abrar Hassan, learned counsel for the petitioner in C.P.No. D-5329/13 argued that the matter pertains to the Town Committee Ghouspur, District Kashmore. He argued that the village Dahri has been included into town committee Ghouspur, which is 03 k.m. away. He pointed out page-37 which is a Notification dated 10.9.1991 whereby the Additional Chief Secretary excluded Deh Nasser and village Dehri from the limits as Town Committee Ghouspur. Learned counsel submits that after rejection of objections, an appeal was filed before the appellate tribunal Larkana Division in which it has been observed by the appellate authority, that proposal of delimitation officer is not synchronized with the guidelines of the Local Government Department even then the delimitation officer was directed to include village Dahri into town committee Ghouspur due to its population size and characteristics. Learned counsel argued that this inclusion is for the reasons that the ruling party may achieve favorable results through gerrymandering. So far as the question of law is concerned learned counsel adopted the arguments of Dr.Farogh Naseem, advocate.

6. Barrister M.Mansoor, learned counsel appearing in C.P.No. D-4463/13 argued that Entry No. 1 of Schedule-7 does not cover the delimitation so no rule could be framed for the delimitation by the Government of Sindh, hence the Sindh Local Council (Election) Rules, 2013 cannot be considered as rules for the purposes of delimitation. He further argued that in the Third Amendment through a proviso incorporated under Section 13, blanket powers have been given to the delimitation officer. He also opposed to the introduction of panel system and argued that due to condition of panel, an independent candidate cannot contest the election unless he forms his own panel or allowed to be joined any political party. For the rest, he adopted the arguments of petitioners M/s. Mureed Ali Shah and Zafar Ali Shah.

7. Mr.Yasir Ahmed Shah, learned counsel for the petitioner in C.P.No. D-5404/13 adopted the arguments of petitioners Mureed Ali Shah and Zafar Ali Shah. He further argued that Section 18(10), (12), (13) and (14) are ultra vires to the constitution to the extent of inconsistency with Article 4, 8, 17, 25, 32 and Article 140-A of the Constitution. He argued that the area of Saddar Town has been unlawfully transferred into District East through entry No. 3, page-37 of the notification dated 4.11.2013. He further argued that in seven UCs District East old charge numbers are mentioned and no voter list has been issued with new charge numbers and the voters will face numerous difficulties and practically it will be not possible for them to cast their votes. In the initial proposal new charge and circle numbers were mentioned but in the final proposal again old numbers are mentioned. Learned counsel further argued that the Notifications dated 4.11.2013 and 21.11.2013 have been issued without lawful authority and liable to be declared null and void.

8. Mr. Moharram G.Balouch, learned counsel for the petitioner in C.P.No. D-5325/13 pointed out page-35 of Court file and argued that union council Sobho Mangsi of Taluka Mehar has population of 15870 which is newly created union council. Initially the area of Sobho Mangsi was under union council Nau Goth now the Sobho Goth has been merged in union council Aghmani. He claims that the distance between Sobho Mangsi and Aghmani is about 10 k.m, earlier the voters of Sobho Mangsi were casting their votes in Nau Goth within the distance of 01 Km. He submits that objections were filed which were not considered, however the appellate tribunal vide order dated 7.11.2013 directed the delimitation officer to resubmit his proposal. Learned counsel further referred to page-45 which is a letter written by Commissioner Hyderabad Division to Research Officer, Government of Sindh with the request that the Secretary Local Government may consider the request to restore the original delimitation order by Deputy Commissioner Dadu whereby the union council Sobho Khan Mangsi with headquarter at village Sobho Khan Mangsi was proposed and to consider the formation of union council Aghmani with the headquarter at village Aghmani. He prayed that the order dated 7.11.2013 be set aside and proposal for formation of union council Sobho Khan Mangsi with its headquarter at village at Sobho Khan Mangsi be restored.

9. Mr.Muhammad Waseem Sammo, learned counsel for the petitioner in C.P.No. D-5369/13 argued that originally Deh Morchadai and Mirwari were in union council Kharochan District Thatta but now the-said villages have been merged in union council Keti Bander District Thatta which has at least 40 Km. distance for the voters to travel and cast their votes. He argued that the objections were filed against the delimitation proposal but no opportunity was afforded to the petitioner. He further argued that the appeal was filed before appellate authority against the proposal which was also dismissed without appreciating the facts. He prayed that not only the impugned order is liable to be set aside but the Deh Morchadai and Mirwari are liable to be merged into union council Kharochan from union council Keti Bunder to restore the original position.

10. One intervener Pir Sikandar Shah through Mirza Sarfraz Ahmed, advocate has filed an application under Order 1 Rule 10 CPC. By consent this application was allowed and taken on record. Counsel for the intervener argued that both the aforesaid villages have been rightly merged into union council Keti Bunder. He also opposed the contention of the petitioner's counsel regarding the distance of 40 k.m. Assistant Commissioner, Ghorabari Dr.Ghulam M.Korai argued that 10 villages from union council Khorachan were withdrawn and adjusted due to change and formation of new districts.

11. Mr. Mehboob Awan, learned counsel for the petitioner in C.P.No. D-4724/13 argued that directions be issued against all the respondents to conduct the elections in accordance with law. It has been prayed that the present Government be directed to deploy Army during local bodies election at District Thatta for maintaining law and order situation. He further prayed that judicial officers be appointed to conduct local bodies elections to be held at District Thatta. This petition is in a generalized form. No doubt as and when the elections of local bodies will be conducted by the Election Commission, naturally in order to conduct fair, free and transparent elections the Election Commission will take all necessary preventative measures for which there is no need of directions at this premature stage.

12. Mr.Khalid Javed Khan, learned Advocate General Sindh gave us a short backgnbund of the date of promulgation of 2013 Act and the subsequent amendment made therein through Amendment Ordinances. Sindh Local Government Act was promulgated on 16.9.2013 and first amendment came into effect from 2.11.2013, second Amendment Ordinance from 25.11.2013 and Third Amendment Ordinance promulgated on 13.12.2013. During pendency of above petitions Second and Third Amendment Ordinances have been passed by the Sindh Assembly on 20.12.2013 on which assent of Governor of Sindh is awaited. Learned A.G. argued that under the original Act there was no population limit for the union committee but it was as may be determined by the Government, however, by virtue of first amendment the population figure was fixed between 40,000 to 50,000 but in the Third Amendment it was reframed with the range 10,000 to 50,000. The learned A.G. further argued that the union councils of District Council Karachi were converted into union committees. He shown us the order dated 13.11.2013 passed by the hon'ble Supreme Court in C.P. No. 77/2010 and argued that the Government of Sindh had given the date 18.1.2014 for local bodies elections in Sindh but Chief Secretary Sindh applied to the Election Commission of Pakistan for extension. The A.G. has produced a copy of letter dated 10.12.2013. In Paragraph 3 of the letter, the Chief Secretary clearly stated that the Government repeatedly submitted before the hon'ble Court (Supreme Court) that it was not possible for the Government and the Election Commission to hold free, fair and transparent elections on such a short notice for which more time is needed. He requested in the concluding Paragraph of the letter that the local bodies elections in Sindh on 18.1.2014 may be deferred to a date as may be mutually agreed for the election in the month of March, 2014. Learned A.G. argued that this application was made but it: was orally rejected. He further argued that as a result of demand made by various political parties including M.Q.M., the District Council was abolished and first time the Union Committee has been added in the definition of council provided in clause xvii of the Section 3 of the Act, 2013. He admitted that the increase made in the union committees through delimitation process to convert union council into town committees was an affirmative action of the Government to treat the all equals and not for any gerrymandering.

13. He further argued that the delimitation process was completed within a short span of time though the delimitation process was not carried out under the directions of hon'ble Supreme Court or the Election Commission of Pakistan but the Government by its own felt it appropriate to initiate delimitation exercise and it was completed fairly keeping in view the instructions of Election Commission of Pakistan that the census block should not be broken. He admitted that .the elections are to be held on the basis of census carried out in the year 1998. Learned A.G. responded that Dr.Farogh Naseem quoted few American judgments in which there was no such example that the elections were to be carried out in the year 2013 on the basis of census carried out in the year 1998 so the examples are distinguishable. He further averred that electoral roll available with the Election Commission of Pakistan on the basis of which the National Assembly and Provincial Assembly elections were carried out so on the basis of same electoral roll the election of local bodies can be conducted and since census blocks were not broken there should be no difficulty to the voters to cast their votes. He admits that there is some variation in some rural population throughout the Province of Sindh but he reiterated that this variation could not be avoided otherwise the census block would have been broken so the threshold of population ranging between 2000 to 3000 could not be strictly maintained. Learned A.G. also referred to Section 34 of the Sindh Local Government Act, 2013 and argued that though Election Commission shall conduct the election but so far as the date of election is concerned it was to be announced by the Government with the consultation of Election Commission. He submitted that the hon'ble Supreme Court has given strict directions to the Government of Sindh for Local Bodies Elections on the given date. Accordingly Sindh Local Council (Election) Rules were prepared and copy was sent to Election Commission of Pakistan. It was further stated that a meeting was convened by the Election Commission of Pakistan on 3.10.2013 and after some more meetings, the Act was further amended with the rules and finally the third amendment Ordinance was brought into field. He argued that the entire process of law making was completed in a transparent manner and in accordance with the guidelines of Election Commission of Pakistan for conducting free and fair local bodies elections in the Province of Sindh.

14. So far as the delimitation process is concerned he argued that it was started keeping in view the date given by the hon'ble Supreme Court for local bodies election. The Deputy Commissioners were appointed delimitation officers and the public notices were also published in the leading newspapers. After hearing of appeals, the final delimitation proposals were received through Commissioners and the same were published in the final gazette on 13.11.2013 for Hyderabad, Mirpurkhas, Sukkur and Larkana Divisions and on 21.11.2013 for Karachi Division. The entire process was completed in view of population, public convenience and territorial contiguity without any gerrymandering. The guidelines were also issued by the Local Government Department to the delimitation officers on the basis of ground realities and as per direction of the Election Commission of Pakistan received from1 time to time. He further argued that in the meeting held on 3.10.2013 in the Election Commission of Pakistan, it was directed that census blocks should not be broken and the delimitation be made on the basis of population census 1998 and electoral roll of 2001 be adjusted accordingly. If the criteria of the population for union committees to 40,000 to 50,000 was to be kept in mind then the census blocks must have been broken so in order to cope up with this problem the fluctuation was made in the population which is now between 10,000 to 50,000.

15. He also shown us the Notification dated 21.11.2013 and argued that variation is done in all districts. He further argued that various areas of Pakistan are urbanizing day by day hence, the rural area has been included in the urban area which is in fact favorable to the residents of locality, which is an affirmative and constructive action. Since the last representation made to the Election Commission of Pakistan on 10.12.2013 by the Chief Secretary Sindh for extension of time in local bodies election was declined so in order to ensure election on the given date the Third Amendment Ordinance, 2013 was promulgated on 13.12.2013 so that the election can be held. In response to the arguments made by the learned counsel for the petitioners, the learned A.G. responded that it is difficult to maintain exact figures of population hence, the one man one vote concept or theory is not possible in the strict sense. The composition/population of the each area is based on reasonable classification without committing any discrimination or violation of Article 25 of the Constitution. He further argued that the delimitation guidelines were issued earlier which could not be followed properly due to certain difficulties hence by virtue of post facto legislation the population figure of union committees was revised/fixed between 10,000 to 50,000 and a proviso was also added in Section 13 of the 2013 Act. He referred to an unreported judgment passed by learned division bench of this Court in C.P.No. D-3206/13 and unreported judgment of the learned divisional bench of Lahore High Court passed in W.P.No. 23040 of 2013, the ratio of both the judgments made it clear that the Provincial Government may undertake and carry out exercise of delimitation and may also frame the rules for the delimitation. Learned A.G. submitted that under Section 11 of the Act, 2013, it is the prerogative of the Government to delimit the wards in Municipal Committees and Town Committees and Corporation in the prescribed manner, so there is no necessity to even frame the rules, however, in the Sindh Local Council (Election) Rules, 2013, the necessary rules relating to the delimitation process were also incorporated.

16. He further referred to Section 138 of the 2013 Act, which clearly provides that the Government may make rules to carry out the purpose of the Act in particular and without prejudice to the generality and such rules may provide for all or any other matters enumerated in Schedule-VII and all matters incidental,-consequential and supplemented' thereto. To respond the objection raised regarding the formation of panel and or proxy system introduced through last amendment, the learned A.G. referred to Section 33 of the Act which provides that election will be held on party basis however, to address this argument he submitted that after introduction of panel system the number of ballot papers will be reduced from 11 crores to 03 crores approximately. The ballot paper will contain only party name and symbol and through one vote 09 candidates will be elected so independent person can contest the election through panel only, however, all candidates will submit their independent forms and after submitting proxy/authority letter from the political party concerned, their candidatures will be finalized after the date of withdrawal of candidature. Learned A.G. further argued that there may be certain difficulties or deficiencies in the statute but if such difficulties do not materially affect the elections process and in case of substantial compliance, violation of law if any may be ignored as the date of election is fast approaching. He further argued that mala fide cannot be attributed to the legislature and in case the petition is allowed as prayed the entire process of election will be kept in abeyance, in support of his arguments he relied upon the following case law:--

(1) 2004 SCMR 1903 (Ghulam Mustafa Insari & others v. Government of the Punjab and others). In this judgment, principles in the context of equality clauses of the Constitution have been discussed in detail but there is no need to reproduce it again as counsel for one of the petitioners Dr.Farogh Naseem has already made reliance on it.

(2) 2011 SCMR 363 (Jahangir Sanvar and others v. Lahore High Court and another) Principle of reasonable classification or differentia was not misinterpreted or misconstrued, as Article 25 of the Constitution did not prohibit reasonable classification with regard to operation of law. Provisions of Sindh Judicial Service Rules, 1994, could not be made applicable in the Province of Punjab. Supreme Court declined to interfere in the judgment passed by High Court.

(3) PLD 2011 SC 44 (Pakcom Limited and others v. Federation of Pakistan and others). Article 25. Discriminatory legislation or a policy formulated. Well entrenched principles on the subject of discriminatory legislation enumerated. It would not be enough to say that a piece of legislation or a policy formulated thereunder is discriminatory but it is to be substantiated by applying certain well entrenched principles on the subject of discriminatory legislation which are as follows:--

(i) The expression equality before law' or theequal protection of law' does not mean that it secures to all persons the benefit of the same laws and the same remedies. It only requires that all persons similarly situated or circumstanced shall be treated alike.

(ii) The guarantee of equal protection of law does not mean that all laws must be general in character and universal in application and the State has no power to distinguish and classify persons or things for the purpose of legislation.

(iii) The guarantee of equal protection of laws forbids class legislation but does not forbid reasonable classification for the purpose of legislation. The guarantee does not prohibit discrimination with respect to things that are different. The State has the power to classify persons or things and to make laws applicable only to the persons or things within the class.

(iv) The classification, if it is not to offend against the constitutional guarantee must be based upon some intelligible differentia bearing a reasonable and just relation to the object sought to be achieved by the legislation.

(v) Reasonableness of classification is a matter for the Courts to determine and when determining this question, the Courts may take into consideration matters of common knowledge, matters of common report, the history of the times and to sustain the classification, they must assume the existence of any state of facts which can reasonably be conceived to exist at the time of the legislation.

(vi) The classification will not be held to be invalid merely because the law might have been extended to other persons who in some respect might resemble the class for which the law is made because the legislature is the best judge of the needs of particular classes and the degree of harm so as to adjust its legislation according to the exigencies found to exist.

(vii) One who assails the classification must show that it does not rest on any reasonable basis.

(viii) Where the legislature lays down the law and indicates the persons or things to whom its provisions are intended to apply and leaves the application of law to an administrative authority while indicating the policy and purpose of law and laying down the standards or norms for the guidance of the designated authority in exercise of its powers, no question of violation of Article 25 arises. In case, however, the designated authority abuses its powers or transgresses the limits when exercising the power, the actual order of the authority and not the State would be condemned as unconstitutional.

(ix) Where the State itself does not make any classification of persons or things and leaves it in the discretion of the Government to select and classify persons or things, without laying down any principle or policy to guide the Government in the exercise of discretion, the statute will be struck down on the ground of making excessive delegation of power to the Government so as to enable it to discriminate between the persons or the things similarly situated.

(4) NLR 1999 Service 67 (Ahmad Yar Chowhan v. Federal Public Service Commission). The provisions of Articles 18, 25 and 27 of the Constitution which were taken into consideration in the judgment in the case of Mushtaq Ahmad Mohal (supra) are no longer enforceable. Moreover, a compensatory or protective discrimination may not offend Articles 18, 25 and 27 of the Constitution in appropriate cases.

(5) PLD 1983 SC 457 (Fauji Foundation and another v. Shamimur Rehman). Power of Court to examine. Court itself being a Creature of Constitution, its powers are limited to examine legislative competence or to such other limitations as are provided in Constitution. When a Court which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examining the legislative competence or to such other limitations as are in the Constitution; and while declaring a legislative instrument as void, it is not because the judicial power is superior in degree or dignity to the legislative power but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the constitutional provision so as to give effect to it or where the Legislature fails to keep within its Constitutional limits.

(6) PLD 1989 SC 166 (Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others). "The High Court found that there was nothing to show that the Governor ordered the dissolution of the Provincial Assembly after obtaining the previous approval of the President. Nor was there anything at all on the record to show that a situation had arisen in the Province of the Punjab wherein the Government of that province could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary. Hence, the order of dissolution passed by the Governor too was not sustainable in law. We are inclined to agree."

"But we are not unmindful of the fact that the whole nation is geared up for elections and we do not propose to do anything which makes confusion worst confounded and creates a greater state of chaos which would be the result if the vital process of elections is interrupted at this juncture. The Courts always keep in view the higher interest of Pakistan while resolving matters of national importance in accordance with the Constitution and law. National interests must take precedence over private interests and individual rights. The forthcoming elections are at hand and the people of Pakistan must be allowed to choose their representatives for the National Assembly on party basis, a right which is guaranteed to them under the Constitution. The writ jurisdiction is discretionary in nature and even if the Court finds that a party has a good case, it may refrain from giving him the relief if greater harm is likely to be caused thereby than the one sought to be remedied. It is well settled that individual interest must be subordinated to the collective good. Therefore, we refrain from granting consequential reliefs, inter alia, the restoration of the National Assembly and the dissolved Federal Cabinet."

(7) (2011) 1 Supreme Court Cases 236 (Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal and others). The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance with those factors which are considered as essential.

1. After concluding the arguments learned A.G., Sindh, Dr.Farogh Naseem, learned counsel exercised the right of rebuttal for self and on behalf of other petitioners. He argued that to cover up the illegalities, the Third Amendment was made for the purpose of delimitation in which only 1998 census was to be considered. So far as the housing census 2012 is concerned it is still incomplete. He referred to the definition of population provided in clause (liv) of Section 3 of 2013 Act, which means the population in accordance with last preceding census officially published. So far as the argument advanced by the learned A.G. that delimitation was made with due care so that the census blocks should not be broken, in this regard, Dr.Farogh Naseem shows us a document (Census 2011) available at the Website of Population Census Organization of Pakistan, http//www.census.govt.pk/census2001 php. and argued that according to this document, it is clear that a census block is not more than 200 to 250 houses. The range of census charge & census circle is 5 to 7. He responded that in view of this official document the argument of learned A.G. is unsubstantiated that the proper delimitation could not be made without breaking census blocks which is not. a big deal in the present scenario when the census block is not more that 200 to 250 houses, so this cannot be made a valid reason to dislodge the population of town committee "40,000 to 50,000" to "10,000 to 50,000", which is a huge fluctuation and the same has been done with the sole motive to commit gerrymandering. He further referred to page-6 of the documents filed by learned A.G. during the course of his arguments which is a statement showing total number of district wise union councils in the Province of Sindh. In the first column the total population of Union Councils after delimitation 2001 are mentioned while in the second column union councils/union committees after delimitation 2013 are mentioned. Learned counsel argued that only in Karachi Division, earlier 178 union councils were in existence which have been now converted into 280 union committees. He again referred to the PLD 1993 SC 473 (Mian Muhammad Nawaz Sharif case).

2. Mr.Zahid Khan, learned Deputy Attorney General contended that he has no instructions from the Federation of Pakistan in this matter. However, Muhammad Najeeb, Joint Provincial Election Commissioner Sindh was present in person who submitted that the Election Commission of Pakistan never directed the Government of Sindh to impose any law or rules. No panel election was suggested, however, he admitted that direction were given by the Election Commission not to break the census blocks. He further contended that delimitation exercise was initiated by the Government of Sindh on its own will and nothing was directed by the Election Commission of Pakistan in this regard.

3. In the nut shell and to summarize the cumulative effect of pleas raised in all petitions, it is clear that everybody is questioning the exercise of delimitation carried out by the government through deputy commissioners. Various legal defects and flaws have been pointed out in the process of delimitation. Some of the petitioners have also challenged the third amendment ordinance which has been passed by the Provincial Assembly of Sindh and assent of Governor Sindh is awaited. Fact remains that not only the Third Amendment Ordinance 2013 was brought in the field during the pendency of the various petitions but the same was also passed by the Sindh Assembly during the pendency of these petitions. Few petitioners filed applications under order 6 Rule 17 C.P.C which were allowed and amended petitions assailing the third amendment ordinance were taken on record and learned AG was put to notice under Order 27-A of the C.P.C. The learned A.G also consented to the amended petitions only to the extent of bringing the same on record and argued that since pure questions of law are involved, he will address the challenge to the third amendment Ordinance orally without filing reply/comments to the amended petitions. Most of the petitioners in the context of delimitation raised the allegations of gerrymandering against the govt. The backdrop and ambiance of the case is the shortcomings occurred in the exercise of delimitation which not only became crucial and critical but also augmented the allegations of gerrymandering.

4. Now we would like to discuss the term or phrase "gerrymandering" repeatedly argued and defended before us. In this regard, we would like to share our own research which we made to understand what is the term gerrymandering? And what we find out through a document hosted on website that in the process of setting electoral districts, gerrymandering is a practice that attempts to establish a political advantage for a particular party or group by manipulating district boundaries to create partisan advantaged districts. The resulting district is known as a gerrymander, however, that word can also refer to the process. When used to allege that a given party is gaining disproportionate power, the term gerrymandering has negative connotations. In addition to its use achieving desired electoral results for a particular party, gerrymandering may be used to help or hinder a particular demographic, such as a political, ethnic, racial, linguistic, religious, or class group. The word gerrymander (originally written Gerry-mander) was used for the first time in the Boston Gazette on 26 March 1812. The word was created in reaction to a redrawing of Massachusetts state senate election districts under the then governor Elbridge Gerry. In 1812, Governor Gerry signed a bill that redistricted Massachusetts to benefit his Democratic-Republican Party. When mapped, one of the contorted districts in the Boston area was said to resemble the shape of a salamander. Gerrymander was a portmanteau of the governor's last name and the word salamander. The redistricting was a notable success. In the 1812 election, both the Massachusetts House and governorship were won by Federalists by a comfortable margin (costing Gerry his seat), but the senate remained firmly in Democratic-Republican hands. The author of the term gerrymander may never be definitively established. Historians widely believe that the Federalist newspaper editors Nathan Hale, and Benjamin and John Russell were the instigators, but the historical record does not have definitive evidence as to who created or uttered the word for the first time. Some political science research suggests that, contrary to common belief, gerrymandering does not decrease electoral competition, and can even increase it. Some claim that, rather than packing the voters of their party into uncompetitive districts, party leaders tend to prefer to spread their party's voters into multiple districts, so that their party can win a larger number of races. Gerrymandering can have an impact on campaign costs for district elections. If districts become increasingly stretched out, candidates must pay increased costs for transportation and trying to develop and present campaign advertising across a district. Gerrymandering may be advocated to improve representation within the legislature among otherwise underrepresented minority groups by packing them into a single district. This can be controversial, as it may lead to those groups remaining marginalised in the government as they become confined to a single district. Candidates outside that district no longer need to represent them to win elections. Another way to avoid gerrymandering is simply to stop redistricting altogether and use existing political boundaries such as state, county, or provincial lines. While this prevents future gerrymandering, any existing advantage may become deeply ingrained. The United States Senate, for instance, has more competitive elections than the House of Representatives due to the use of existing state borders rather than gerrymandered districts Senators are elected by their entire state, while Representatives are elected in legislatively drawn districts. Ref: http://en.wikipedia.org/wiki/Gerrymandering:

5. At this juncture, we would also like to limelight the comparative study of laws of delimitation in Pakistan and India. In Pakistan we have "Delimitation of Constituencies Act, 1974". In the definition clause of Section 2, the Commission means the Election Commission. The relevant sections/provisions relating to the exercise of delimitation are as under:--

"3. Commission to delimit constituencies. The Commission shall delimit territorial constituencies for elections to the National Assembly and to each Provincial Assembly in accordance with the provisions of the Constitution and this Act.

1. Principles of delimitation (1). All constituencies for general seats shall, as far as practicable, be delimited having regard to the distribution of population in geographically compact areas, existing boundaries of demonstrative units, facilities of communication and public convenience and other cognate factors of ensure homogeneity in the creation of constituencies:

Provided that for the purpose of delimiting constituencies for the general seats for the Federally Administered Tribal Areas two or more separate areas may be grouped into one constituency.

1. Reports of Commission and list of constituencies. (1) For the purpose of delimiting constituencies, the Commission may receive and consider representation, hold inquiries, summon witnesses and record evidence, and shall prepare and publish in the official Gazette a preliminary report and list of constituencies specifying the areas proposed to be included in each constituency.

(2) Any person entitled to vote at an election to the National Assembly or a Provincial Assembly may, within (fifteen) days of the publication of the report under sub-section (1), make a representation to the Commission in respect of the delimitation of constituencies.

(3) The Commission shall, after hearing and considering the representations, if any, received by it, make such amendments, alterations or modifications, in the preliminary list published under sub-section (1) as it thinks fit or necessary, and shall publish in the official Gazette the final report and list of constituencies showing the areas included in each constituency.

10A. Power of Commission to make amendment, alteration or modification in the final list of constituencies, notwithstanding anything contained in this Act, the Commission may, at any time, of its own motion, make such amendments, alterations or modifications in the final list of constituencies published under sub-section (3) or in the areas included in a constituency, as it thinks necessary".

In the Indian "Delimitation Act 2002", the Commission means the Delimitation Commission constituted under Section 3 of the Act. The relevant sections are reproduced as under:--

"3. As soon as may be after the commencement of this Act, the Central Government shall constitute a Commission to be called the Delimitation Commission which shall consist of three members as follows:--

(a) one member, who shall be a person who is or has been a Judge of the Supreme Court, to be appointed by Central Government who shall be the Chairperson of the Commission;

(b) the Chief Election Commissioner or an Election Commissioner nominated by the Chief Election Commissioner, ex officio.

Provided that after the nomination of an Election Commissioner as a member under this clause, no further nomination under this clause shall be made except to fill the casuai vacancy of such member under Section 6; and

(c) the State Election Commissioner of concerned State, ex officio.

Explanation--For the purpose of clause (c), the State Election Commissioner of the concerned State, in respect of the duties of the Commissioner relating to that State, means the State Election Commissioner appointed by the Governor of that State under clause (1) of Article 243K.

9(1) The Commission shall, in the manner herein provided, then, distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State as readjusted on the basis of 1971 census to .single member territorial constituencies and the delimit them on the basis of the census figures as ascertained, at the census held in the year 1991, having regard to the provisions of the Constitution, the provisions of the Act specified in Section 8 and following provisions, namely:--

(a) all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing boundaries of administrative units, facilities of communication and public convenience;

(b) every assembly constituency shall be so delimited as to fall wholly within one parliamentary constituency;

(c) constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large; and

(d) constituencies in which seats are reserved for the Scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total is the largest.

(2) The Commission shall--

(a) publish its proposals for the delimitation of constituencies, together with the dissenting proposals, if any, of any associate member who desires publication thereof, in the Gazette of India and in the Official Gazette of all the States concerned and also in such other manner as it thinks fit;

(b) specify a date on or after which the proposals shall be further considered by it;

(c) consider all objections and suggestions which may have been received by it before the date so specified, and for the purpose of such consideration, hold one or more public sittings at such place or places in each State as it thinks fit;

(d) thereafter by one or more orders determine--

(i) the delimitation of parliamentary constituencies; and

(ii) the delimitation of assembly constituencies, of each State."

We have also seen the Delimitation Rules framed by Government of Punjab and Sindh.

The relevant rules of "Punjab Local Governments (Delimitation) Rules, 2013"

1. Delimitation of Wards: (1) For purposes of election, a Municipal Committee may be divided into such number of wards, as the Government may determine keeping in view the population prescribed for the Municipal Committee under the Act.

(2) A ward shall be a single member ward and the number of wards in a Municipal Committee shall not be less than eleven or more than fifty.

(3) A ward shall, as far as possible consist of a part of a census block, a" census block or adjoining census blocks and the population of wards within a Municipal Committee shall, as far as possible, be uniform.

1. Delimitation of Union Council: (1) The Government may determine the number of union councils for the Metropolitan Corporation, a Municipal Corporation and a District Council.

(2) A Union Council shall be an area consisting of one or more revenue estates or, in the case of an area where revision of settlement under the law has not taken place, one or more census villages or, in case of an urban area, a census block or blocks as delimited for purposes of the last preceding census or a census block and a revenue estate, notified as such by the Government.

(3) As far as possible:

(a) the area of a Union Council shall be a territorial unity;

(b) the boundaries of a Union Council shall not cross the limits of the Metropolitan Corporation; A Municipal Corporation or a District Council; and

(c) the population of the Union Councils within a local government shall be uniform.

While the relevant rules of "Sindh Local Councils (Election) Rules, 2013" are as under:

Chapter-III, Delimitation of Electoral Units

1. (1) Government shall notify the delimitation officers and appellate tribunals for the purpose of delimitation of electoral units.

(2) For the purpose of election, a local area shall be divided into electoral units keeping in view the number of seats of the Council and the population of the local area.

(3) The electoral units within the area shall be delimited having regard to the territorial unity and as far as practicable, to distribution of population and public convenience.

(4) As many Delimitation Officers as deemed necessary shall be appointed to assist in the delimitation work.

1. (1) The delimitation officer shall arrange to have a preliminary list of electoral units delimited under Rule 8, published in such manner as he deems fit, together with a notice inviting objections or suggestions within such time as may be specified by Government.

(2) Any person entitled to vote at an election may, within specified time, make a representation in respect of the delimitation of the electoral units to such officer or authority, as Government may appoint in this behalf.

1. (1) The Appellate Tribunal or authority may after considering the representation and hearing those who wish to be heard make such amendments, alterations or modifications in the preliminary list published under Rule 9 as it may deem fit:

Provided that an officer or authority dealing with a representation may, if thinks appropriate, refer it to Government for decision.

(2) The Appellate Tribunal may on a representation made to it, after hearing those who wish to be heard, revise the final lists of delimitation of a council, by recording reasons thereof.

(3) After disposal of all representation made under sub-rule (1), Government shall arrange to have the final list of electoral units published in the Official Gazette and in case of urgency, in the manner as it deems fit.

1. We have also come across with another document relating to the Subject of delimitation according to which the boundary delimitation is the drawing of boundaries, particularly of electoral precincts, states, counties or other municipalities. In the context of elections, it can be called redistribution in order to prevent unbalance of population across districts. Unbalanced or discriminatory delimitation is called "gerrymandering". Though there are no internationally agreed processes that guarantee fair delimitation, several organizations, such as the Commonwealth Secretariat, the European Union and the International Foundation for Electoral Systems have proposed guidelines for effective delimitation. In international law, the related national delimitation is the process of legally establishing the outer limits (borders) of a state within which full territorial or functional sovereignty is exercised. Countries delimit electoral districts in different ways. Sometimes these are drawn based on traditional boundaries, sometimes based on the physical characteristics of the region and, often, the lines are drawn based on the social, political and cultural contexts of the area. These processes of boundary delimitation can have a variety of legal justifications. Often, because of the powerful effects this process can have on constituencies, the legal framework for delimitation is specified in the constitution of a country. The Institute for Democracy and Electoral Assistance (IDEA) recommends the following pieces of information be included in this legal framework:

\ The frequency of such determination;

\ The criteria for such determination;

\ The degree of public participation in the process;

\ The respective roles of the legislature, judiciary and executive in the process; and

\ The ultimate authority for the final determination of the electoral units.

A number of international organizations including the Organization for Security and Co-operation in Europe, the European Commission for Democracy Through Law (the Venice Commission), the Commonwealth Secretariat, and the Electoral Institute of Southern Africa (EISA) have established standards which their members are encouraged to prescribe to. Among these standards the International Foundation for Electoral Systems (IFES) lists the most common as being Impartiality, Equality, Representativeness, Non-Discrimination and Transparency. As part of its report, European Commission for Democracy Through Law: Code of Good Practice in Electoral Matters, Guidelines and Explanatory Reports adopted October 2002, the Venice Commission in which following guidelines were proposed:

2.2 Equal voting power: seats must be evenly distributed between the constituencies.

(i) This must at least apply to elections to lower houses of parliament and regional and local elections:

(ii) It entails a clear and balanced distribution of seats among constituencies on the basis of one of the following allocation criteria: population, number of resident nationals (including minors), number of registered voters, and possibly the number of people actually voting. An appropriate combination of these criteria may be envisaged.

(iii) The geographical criterion and administrative, or possibly even historical, boundaries may be taken into consideration.

(iv) The permissible departure from the norm should not be more than 10%, and should certainly not exceed 15% except in special circumstances (protection of a concentrated minority, sparsely populated administrative entity).

(v) In order to guarantee equal voting power, the distribution of seats must be reviewed at least every ten years, preferably outside election periods.

(vi) With multimember constituencies, seats should preferably be redistributed without redefining constituency boundaries, which should, where possible, coincide with administrative boundaries.

(vii) When constituency boundaries are redefined which they must be in a single-member system, it must be done impartially; without detriment to national minorities; taking account of the opinion of a committee, the majority of whose members are independent; this committee should preferably include a geographer, a sociologist, and a balanced representation of the parties and, if necessary, representatives of national minorities.

Dr. Lisa Handley, a consultant on issues of democratic governance including voting rights, electoral system design, electoral boundary delimitation and electoral dispute resolution for the United Nations, the United Nations Development Fund (UNDP), the International Foundation for Election Systems (IFES), and International IDEA, remained involved in electoral assistance in many countries. In the last couple of years she participated in election missions in Afghanistan, Azerbaijan, the Democratic Republic of the Congo, Georgia, Kosovo, Liberia, Lebanon, Nigeria, Sierra Leone, Sudan and Yemen. In her study sponsored by the International Foundation for Electoral Systems, Dr. Lisa Handley recommended the following considerations for delimitation:

(i) population density

(ii) case of transportation and communication

(iii) geographic features

(iv) existing patterns of Human settlement

(v) financial viability and administrative capacity of electoral area

(vi) financial and administrative consequences of boundary determination

(vii) existing boundaries

(viii) community of interest

According to her the delimitation process should:

. be managed by an independent and impartial body that is representative of society, comprising • persons with the appropriate skills;

. be conducted on the basis of clearly identified criteria such as population, distribution, community of interest, convenience, geographical features and other natural or administrative boundaries;

. be made accessible to the public through a consultation process;

. be devoid of manipulation of electoral boundaries to favour political groups or political interests;

. be conducted by one body;

. include all spheres of government, both national and local. Ref: http:/halmaigabor.hu/dok/ 107-[Lisa Handley Boundary Delimitation].

1. According to the report submitted on the General Elections to Legislative Assemblies of Manipur, Orisa, Pondicherry and Uttar Pradesh in 1974 and Gujrat in 1975, it was observed in ch. II, that the Delimitation Commission had to ensure that, as far as practicable, all constituencies should be more or less equal in population and should be geographically compact areas in which administrative units were kept intact and not unnecessarily broken. These administrative units mainly consisted of districts, sub-divisions, talukas or police stations. However, for proper delimitation, the Delimitation Commission had to select even a lower administrative unit so that it could be kept unbroken, like, village panchayat; panchayat union, revenue inspector circle, lekhpal circle, pargana, mouza, depending upon the administrative set up of the states concerned. Apart from the above, physical features of the areas, like, hills, deserts, rivers, streams, etc., means of communication and considerations of public convenience had also to be kept in view while drawing the boundaries of the constituencies.

2. A plain preview of the above documents overwhelmingly demonstrate that the delimitation is a serious business which cannot be done in a slipshod manner or in spur of moment but it requires hectic and strenuous efforts. Even in our own Delimitation Act, 1974 detailed procedure is provided for the delimitation of constituencies in which the commission has to receive and consider representation, hold inquires, summon witnesses and record evidence and shall prepare and publish in the official gazette a preliminary report. Any person entitled to vote in the NA and PA may make a representation and the commission after hearing and considering the representation make amendments or modifications in the preliminary list. No doubt under the Local Government Act 2013 the Sindh Government under Section 10 and 11 has the prerogative to delimit the union councils and wards but under the letter of law it is clearly provided that they have to maintain territorial unity, population of union council in a district shall be uniform and the boundaries shall not cross the limits of revenue taluka and for the purposes of delimitation of an urban area a ward shall as far as possible consist of a census block or adjoining census block. It is further provided under Section 12 that any area declared as union, town, municipality or corporation shall as far as possible be compact and contiguous with territorial unity.

3. What happened in this case is vide Notification dated 26.9.2013, the Deputy Commissioners of respective districts were appointed Delimitation Officers in respect of local councils established under the Sindh Local Government Act 2013. On 19.8.2013 guidelines for delimitation of constituencies were issued. Though in the guidelines it was stated in the criteria that area as far as possible shall remain compact, contiguous and as far as possible minimum changes will be in the present set up. It was further provided as one of the conditions in the procedure that in the rural areas as far as possible the delimitation of present union councils may not be disturbed. Though it was provided that the delimitation officers can seek assistance in the delimitation work from the Assistant Commissioners, Mukhtiarkars and other relevant officers in the district but nothing was provided to maintain transparency in the delimitation process or to make it foolproof or watertight that the delimitation officers may hold the inquiries and summon the witnesses for the purposes of making the delimitation exercise fair and transparent. Almost all the petitioners have challenged the delimitation process being sham, mock or nontransparent and pleaded that their objections were not considered by the delimitation officers nor any ample opportunity afforded to them. We have also seen the orders passed by appellate authorities and noticed that though their powers were quasi-judicial in nature but they have disposed of almost all appeals in a slipshod manner and they maintained the delimitation proposal as it is without passing any speaking orders which totally nullified and made redundant the creation of an appellate forum.

4. There is no cavil to the proposition advanced by the learned AG. that when the powers are already conferred upon the govt. under the Sindh Local Government Act 2013 to undertake and carry out the exercise of delimitation then it was not obligatory to make the rules but the fact remains that the delimitation officers were appointed on 26.9.2013 and the guidelines were issued much earlier on 19.8.2013 but the Sindh Government promulgated Sindh Local Councils (Election) Rules, 2013 on 27.11.2013, though the rule primarily germane to the election but in the same rules Chapter-III was dedicated to the delimitation of electoral units in which neither the earlier notification appointing the delimitation officers nor the guidelines issued were protected however in Rule 8 it is provided that the Government shall notify the delimitation officers and appellate tribunals and for the purposes of election a local area shall be divided into electoral units keeping in view the number of seat of the council and the population of the local area. It is further provided that electoral units within the area shall be delimited having regard to the territorial unity and as far as practicable, to distribution of population. Again in Rule 9 it is provided that the delimitation officer shall arrange preliminary list of the units delimited together with a notice inviting objections or suggestions. Nothing has been said regarding the inquiry, summoning the witnesses or recording the evidence which was most crucial exercise which must have been carried out prior submitting the final delimitation proposal which has not been done in this case and such lapses became the root cause of the allegations of gerrymandering against the Government.

5. Another fact which cannot be ignored that most of the petitioners have also pleaded that while completing the task of delimitation, rural areas have been included in the urban area unlawfully which is a glaring contravention of Section 13 of the Act. The council for the petitioner in C.P. No. D-4803/13 shown us an issue of newspaper daily "Jurrat" dated 8.10.2013 in which a public notice was issued by the Deputy Commissioner for the delimitation of District Shaheed Benazirabad which was to be started from 10.10.2013 till 18.10.2013. The public notice shows that within nine days only, the delimitation exercise which is always a hectic exercise was to be completed. In our view the implication of Sections provided for delimitation and declaration of urban and rural areas are two distinct subjects with different compliances. The learned A.G. rightly argued that urbanizing a rural area is beneficial, constructive and advantageous for the residents and it may be a matter of pleasure and contentment for them but at the same time one has to keep in mind that for declaring any rural area urban, a proper Section and procedure is already provided under the law which must be adhered to and cannot be ignored callously. The public notice referred to above only relates to the delimitation without providing any details of union councils/ committees/wards but nothing has been said to inform the general public for the inclusion of any rural area into urban. We have referred to the above public notice as instance and find out similar Lapses and irregularities in other petitions as well.

6. In the Sindh Local Government (Third Amendment) Ordinance, 2013 promulgated on 13.12.2013 by virtue of Section 3 a proviso has been added in sub-section (1) of Section 13 which reads as under:--

"Provided that where the delimitation officer has come to the conclusion that an area which is rural, has acquired the status of urban areas at the time of delimitation under this Act he may declare such rural area to be urban area and such area shall deem to be urban areas accordingly."

The above post facto legislation has been made to cover up the irregularities, deficiency and the violation of Section 13, which otherwise make it evident without any shadow of doubt that during the delimitation process the compliance of Section 13 was utterly violated and an attempt has been made to cover up and protect the non-compliance. This proviso is also discriminatory and illegal and made to circumvent the original text of Section 13 though in our view the proviso attached to any section is cannot be read in isolation and the powers given in the proviso cannot be uncontrolled or independent to the original section. The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. The words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. If the enacting portion of a section is not clear a proviso appended to it may give an indication as to its true meaning. As stated by Lord Herschell: "Of Course a proviso may be used to guide you in the selection of one or other of two possible constructions of the words to be found in the enactment, and show when there is doubt about its scope, when it may reasonably admit of doubt as to having this scope or that, which is the proper view to take of it. And Lord Watson in the same case said; "I perfectly admit that there may be and are many cases in which the terms of an intelligible proviso may throw considerable light on the ambiguous import of the statutory words." A distinction is said to exist between provisions warded as proviso',Exception' or Saving Clause',Exception' is intended to restrain the enacting clause to particular cases; Proviso', is used to remove special cases from the general enactment and provide for them specially; andSaving Clause' is used to preserve from destruction certain rights, remedies or privileges already existing. Ref: Principles of Statutory Interpretation (Fourth Edition) 2006 by Justice G.P. Singh. Since in this case proviso has been added to nullify the original text and provided protection with retrospective effect to the acts of delimitation officers to cover up illegalities committed by them in the exercise of delimitation with the amendments made on 13.12.2013 with retrospective effect from 16.9.2013 therefore, this amendment is unconstitutional which virtually made impossible to hold fair and free elections in terms of Section 34 of the Sindh Local Government Act, 2013 and under Articles 218 and 219 of the Constitution of Pakistan, 1973. We are also of the firm view that this proviso has been added to circumvent our judgment passed in C.P.No. D-4924/13 on 5.12.2013 in which while remanding a matter to the Appellate Tribunal we had observed the noncompliance of Section 13 of the original Act, 2013 before adding the proviso and directed to the Appellate Authority to decide the appeal afresh. It was also found in some appellate orders that the delimitation officers in their comments tried to justify the inclusion of rural areas into urban with the plea that said rural areas begun to develop which suffice to show their own admissions that the requirements envisaged under Section 13 were not fulfilled and proviso has been added later on with the sole purpose to undo their fault and illegalities.

1. We have also observed that proper population criteria during the delimitation process was not followed and many petitioners complained that the figure of population has not been fixed keeping in mind the population criteria and they have actually demonstrated through the final proposals submitted by the delimitation officers. The only plea taken by the learned A.G. that proper delimitation could not have been made without breaking the census blocks. This is not the logical reply to upset and or disturb the delimitation guidelines and criteria especially for the reasons that the census block is not more than 200-250 houses.

2. The population limit/figure of union committee in metropolitan corporation was earlier between 40,000 to 50,000 but through the Third Amendment Ordinance, 2013 dated 13.12.2013 by virtue of Section 8, Schedule-I in part "C" was amended and under the heading "union committee in metropolitan corporation" for the figure "40,000 to 50,000" the figures "10,000 to 50,000" were substituted. The interesting thing which we have noted that the amendments were made on 13.12.2013 whereby a crucial fluctuation and change in the population was made but the final delimitation proposals were submitted by the Commissioners which were published in the official gazette on 13.11.2013 for Hyderabad, Mirpurkhas, Sukkur and Larkana Divisions while on 21.11.2013 for Karachi Division, which shows that this amendment too was made to protect the defects of delimitation through a post facto legislation and this is for the reasons that the Amendment Ordinance has been made applicable with retrospective effect. This aspect is also directly related to the exercise of delimitation and fluctuation ranging from 10,000 to 50,000 is totally discriminatory, unrealistic and found without any justification. Such type of irrational amendments give rise to the allegations of gerrymandering. One thing is more important to point out that the learned A.G. produced a photocopy of letter dated 10.12.2013 which was written by the Chief Secretary, Government of Sindh to the Election Commission of Pakistan in which besides highlighting his grievances regarding the dates of Local Government Elections in Sindh he clearly took the stand that the Government repeatedly submitted that it is not possible for the Government and the Election Commission to hold free, fair and transparent local government elections at such a short date and in the prayer he requested for the date of local government elections in the month of March, 2014. He further requested that pending decision of his application, schedule for local government elections in Sindh may not be announced as it would seriously prejudice and unnecessarily inconvenience to the people in Sindh. Though learned A.G. argued that this application was orally rejected but immediately after two days the Third Amendment Ordinance was brought into field. The Sindh Government may have been facing some problems and they may be rightly of the view that free and fair elections are not possible on the given date in view of Section 34 of the Local ^Government Act read with Articles 218 and 219 of the Constitution but it does not mean that by introducing unconstitutional amendments in the law they can overcome their problems, in fact they have created more problems for them due to violation of law in the exercise of delimitation. The learned A.G. also shown us the final proposal of the delimitation and pointed out that in fact in each town committee, union committee, ward and union council there is visible disparity and fluctuation in the population which shows that the settled population criteria was not followed but this incident cannot be covered through the post facto legislation which prima facie show the delimitation exercise was completed without following the population criteria and to give the legal cover amendments were made in the law after the oral rejection of their application for extension of time in the date of election.

3. The learned A.G. also shown us a statement showing total numbers of District Wise union councils after delimitation of 2001 and 2013. The statement particularly shows that in Karachi Division after 2001 delimitation there were 178 union councils and after 2013 delimitation 280 union committees have been created which makes a difference of 102 of union committees. If we see from the same statement for the entire Province of Sindh including Karachi the grand total of the union council as per delimitation exercise 2001 was 1110 which is now 1061 while the total number of union committees is 446, which suffices to show that during delimitation exercise, the appropriate population criteria was not respected in order to draw delimitation proposals within the premise of law. The protection given under the Third Amendment Ordinance, 2013, is quite discriminatory amongst the population and masses of different union councils/union committees, wards etc. in many ways. Though clause (d) of Section 32 of the Sindh Local Government Act, 2013 was omitted by the Sindh Local (Amendment) Act, 2013 promulgated on 2.11.2013, which provided that every voter within the union council shall have only one vote irrespective of the number of members to be elected from the union council or ward but it does not mean that blanket or unbridled powers can be exercised through post facto legislation to introduce huge fluctuation in the population from 10,000 to 50,000 which was earlier 40,000 to 50,000 which was otherwise not so marginal in our view but keeping in view the present fluctuation and variation in figure, the earlier figure seems to had some rational nexus in which gigantic discretion could not have been exercised by the delimitation officer.

4. The cases cited from American jurisdiction reveals that in the case of White v. Weiser the Court invalidated reapportionment plan. The average deviation of all districts from ideal was .745%, the largest district exceeded the ideal by 2.43% and the smallest district under the ideal by only 1.7%. The plan was rejected in favour of one where the largest district exceeded the ideal by .086% and the smallest was under the ideal by .063%. It was also held in this case if a plaintiff can demonstrate that the population difference are not a product of good faith, the State will be required to prove that such significant variance between district was necessary to achieve some legitimate goal. In the case of Mahan v. Howell the Court held that the most overrepresented district exceeded the ideal by 5.8% and the most unrepresented was under by 4.1% for a total variation of 9.9%, the Court held that 9.9% total variation does not make out a prima facie case and does not require any special justification. We have also highlighted what is actually the term `gerrymandering' and how to prevent it. The crux of the matter in relation to the proper delimitation and keeping in view the other valid considerations and the criteria laid down for delimitation at large, we are of the firm view that instead of involving Deputy Commissioners being a single person to carry out this serious exercise, an independent commission or impartial body be formed/constituted with an independent and viable appellate forum to hear the appeals with equal opportunity to the stakeholders and then notify the final delimitation proposal, so that nobody should be given a chance to raise allegations of gerrymandering against the Government. As in the present form of delimitation various petitioners has Leveled allegations that the Deputy Commissioners and the appellate authorities were under the extreme pressure of Government and sitting M.N.As. and M.P.As.

5. Some of the petitioners argued that the name of union councils/ committees have been changed during the delimitation process unlawfully, which is in contravention of Section 16 of the 2013 Act. The letter of law is clear that a council shall unless Government notifies otherwise be known as the council of the place where its office is situated. During the proceedings we have been shown through documents that in the delimitation exercise the names of few union councils were changed for which a separate procedure is already provided under Section 16 and the powers' bestowed upon the delimitation officer under Section 10 and 11 have nothing to do with the change of name of any council. So any such act which is in violation of law cannot sustain.

6. The next vital question raised by the various petitioners is against Section 4 of the Third Amendment Ordinance, 2013 through which a subsection (12) has been added into Section 18 of the Local Government Act, 2013. The spirit in the wake of this addition in the form of a subsection is to impose a mandatory condition for formation of panel. The new subsection provides that there shall be a panel consisting of nine contesting candidates, including general members, woman, peasant or labourer and non-Muslim for contesting election in a union council or a union committee as the case may be. The proviso attached to the subsection envisages that the panel so constituted may act through one of its members duly authorized by it. A new subsection (14) has also been inserted which provides that" in case a political party or independent candidates fail to form a panel for contesting election the nomination papers of all other independent candidates or nominees of a political party shall be deemed to have been rejected. Through this amendment an independent candidate who may be so pious, competent having integrity and entitled to contest the local bodies election is ousted which is a sheer violation of Sections 35 and 36 of the 2013 Act in which no condition of panel is attached. It is also opposed to the Articles 17 and 25 of the Constitution. Unless such independent person or persons form a panel, they cannot contest the election which is in fact a unique type of system introduced first time to debar and infringe upon the fundamental right of a citizen of Pakistan. No lawful justification has been advanced by the learned A.G. Sindh through which this amendment may be defended except that through this exercise huge number of ballot papers can be saved. He further argued that in terms of Section 33 of the Sindh Local Government Act, 2013 the election of the local government shall be held on party basis hence the panel system was introduced. This arguments cannot be used as a tool or weapon to stifle and strangulate the fundamental rights of citizen of Pakistan. Perhaps the learned A.G. overlooked the proviso of Section 33 in which it is clearly provided that any candidate may contest election as independent candidate and may subsequently join any party. The introduction of election through panel is in conflict with the proviso of Section 33 in which the independent candidate can contest the election and thereafter, at his own will, he may or may not join any party. Under Article 140A of the Constitution of Pakistan it is the responsibility of each Province to establish by law a Local Government System and devolve, political, administrative and financial responsibility and authority to the elected representatives of the local Government. We feel no hesitation to hold that sub-section (12) and (14) added in Section 18 of the Sindh Local Government Act 2013 are violative of Articles 17 and 25 of the Constitution of Pakistan.

7. When a right is safeguarded by a Constitutional guarantee is called fundamental right' because by doing so it has been placed beyond the power of any organ of State, whether, Executive or Legislative to act in violation of it. Such a right cannot be taken away, suspended or abridged. The fundamental rights are natural rights which are personal to the individual as a citizen of a free and civilized community. The essential characteristic of fundamental rights is that they impose limitations, express or implied, on public authorities, interfering with their exercise. It is the duty of the Court to protect Fundamental Rights granted in the Constitution. Article 199 of the Constitution empowers this Court to issue any appropriate directions for the enforcement of Fundamental Rights conferred by the Constitution. The superior Courts time and again pronounced that any law which is inconsistent and in contravention of fundamental rights or which took away or abridged such rights, is void, to the extent of such contravention. Paramountcy of fundamental right is recognized by the Constitution limiting the powers of State organs to the extent that what had been conferred by the Constitution as fundamental rights, could not be taken away or abridged by the State. What had been guaranteed by the Constitution as a fundamental right could not be annihilated or taken away in the garb of reasonable restrictions. The infringement of fundamental rights can be in many ways. The discrimination which means "making a distinction or difference between things." a distinction, a difference, distinguishing mark or characteristics; the power of observing differences accurately or of making exact distinctions; discernment. But discrimination against a group or an individual implies making an adverse distinction with regard to some benefit, advantage or facility. Discrimination thus involves an element of unfavorable bias and it is in that sense that the expression has to be understood to this extent. However, it becomes an act of discrimination only when it is improper or capricious exercise or abuse of discretionary authority, and the person against whom that discretion is exercised faces certain appreciable disadvantages which he would not have faced otherwise' Under Article 25 of the Constitution, reasonable classification is not prohibited but it is required that all persons similarly placed should be treated alike.

8. The cumulative effect of the law laid down in the precedents cited by the learned counsel for the petitioners is already well known and well settled that if no standard is setup to avoid the violation of equality clause, the Court can judicially review to see whether or not the powers delegated has been exercised arbitrarily. When a provision of statute which is ex facie discriminatory and a provision thereof may be capable of being pressed into service in discriminatory manner the former provision would be liable to be struck down on the ground of violation of Article 25. The Court generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is ex facie discriminatory or capable of discriminatory application or violates any provision of the Constitution it may be declared void ab initio since its inception. Article 25 of the Constitution enshrined the basic concept of religion of Islam which is now known as the golden principle of modern jurisprudence which enjoins that all citizens are equal before law and are entitled to equal protection of law, however, the above clause does not prohibit treatment of citizen on the basis of reasonable classification. Where on the face of a statute no classification at all and no visible differentia with reference to the object of the enactment as regards the person or persons subject to its provisions then the presumption was displaced. Function of judiciary is not to legislate or question the wisdom of legislature in making a particular law nor it can refuse to enforce law even if the result of it be to nullify its own decision. Vires of law can be challenged being violative of any provision of the Constitution. Doctrine of severability permitted a Court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder but if the valid portion was so closely mixed up with the invalid portion that it could not be separated without leaving an incomplete or more or less mixed remainder, the Court would declare the entire act void. In the latest judgment of hon’ble Supreme Court reported in 2013 SCMR 1752 (contempt proceedings against the Chief Secretary and others) which is a case commonly known as "civil servants/police out of turn promotion, transfer and deputation cases", the hon'ble Supreme Court strike down the various legislations, which were meant to protect the right of specific class of persons. The hon'ble Supreme Court held that mala fide cannot be attributed to the legislature but if a legislature deliberately embarks upon a venture to nullify considered judicial verdict in an unlawful manner, trample the constitutional mandate and violates the law then it is difficult to attribute bonafide to it either. In the case of Workers Party Pakistan the hon'ble Supreme Court held that the Election Commission is charged with responsibility to organize and conduct the election. Article 218 implied that Election Commission is responsible not only for conducting the election itself but also for making all necessary arrangements for the said purpose.

9. So far as the precedent quoted by the, learned A.G. Sindh the expounded principles are that Article 25 did not prohibit the reasonable classification. In the Pakcom case the hon'ble Supreme Court laid down the detailed guidelines which require that all ` persons similarly situated shall be treated alike. The guarantee of equal forbids class legislation but does not forbid reasonable, classification. The classification should be based on intelligible differentia. The legislature is the best judge of the needs of particular classes and degree of harm so as to adjust its legislation according to the exigencies. In the Fauji Foundation case it was held that the powers of Court are limited to examine legislative competence and while declaring a legislative instrument void, it is not because a judicial power is superior in degree "or dignity to the legislative power but because it enforces the Constitution where a legislative instrument is in conflict with constitutional provision. The learned A.G. argued that the election is approaching fast and if any wrong or violation of law is committed even then this Court may ignore the illegalities and in support of his arguments he referred to the case of Haji Saifullah in which though hon'ble Supreme Court was fully in agreement that the order of dissolution of assembly was not sustainable but no consequential relief was allowed for the reason that the whole nation was geared up for election so the Court held that national interest must take precedence over private interest and individual right. In this case we are of the firm view that the case of Haji Saifullah has hardly any relevance in which the question of toppling down of the elected Government was in issue. Here, the vires of law under which elections of the local government are to be conducted is the subject matter in which besides committing the lapses in the constitutional mandate, the venue or the arena for the independent candidates have also been closed down unless they form a panel which cannot be considered a reasonable classification made in the law. Lastly, tie cited the case of Indian Supreme Court on the notion of substantial compliance, in which it was held that if the requirements are procedural or directory in that they are not of the essence of the thing to be done but are given with a view to orderly conduct of business they may be fulfilled by substantial if not strict compliance. It was further held that a mere attempted compliance may not be sufficient, but actual compliance with those factors which are considered as essential. In this regard we would like to observe here again that the lapses in the delimitation process and the effect of Third Amendment Ordinance, 2013 have far reaching adversative effects which cannot be considered mere directory so the question of substantial compliance, either partial or impartial does not arise when the amendments are ab initio void and or in derogation of the law and the constitutional mandate.

10. For the foregoing reasons, the aforesaid petitions are admitted to regular hearing and disposed of in the following terms:--

(a) The entire delimitation exercise carried out by the delimitation officers is declared to have been conducted in violation of Sections 10, 11, 12 and 13 of the Sindh Local Government Act, 2013 and the guidelines issued by the Government. Consequently, the final delimitation proposal published in official gazette on 13.11.2013 for Hyderabad, Mirpurkhas, Sukkur and Larkana Divisions and the Notification dated 21.11.2013 published for Karachi Division both are set-aside.

(b) The Elections of Local Government may be conducted on 18.01.2014 in the Province of Sindh on the position as existing prior to the delimitation process started in the year 2013.

(c) If the Sindh Government is of the view that the exercise of delimitation is necessary prior to Local Government Elections in Sindh then the Government may make a request to the hon'ble Supreme Court and the Election Commission of Pakistan for the extension in the date of election.

(d) If the date is extended by the hon'ble Supreme Court of Pakistan and the Election Commission for the delimitation purpose, then it is suggested that an independent commission or body be formed by the Government of Sindh with proper rules and the procedure to deal with the objections and also provide an independent forum of an appellate authority to hear and decide the appeals in the delimitation cases.

(e) The amendments made through Sections 3, 4 and 8 of the Sindh Local Government (Third Amendment) Ordinance, 2013 (which is now passed by the Sindh Assembly) whereby a proviso has been added in Sub-section (1) of Section 13, sub-section (12) & (14) have been added in Section 18 and substitution made in Schedule-I, in Part-C under the head "Union Committee in Metropolitan Corporation" for the figures "40,000-50,000" to the figures "10,000 to 50,000" in Sindh Local Government Act 2013 are violative of Sections 12, 13, 34, 35, 36 and 153-A of the Sindh Local Government Act, 2013 and also opposed to the Articles 17, 25, 140-A, 218 and 219 of the Constitution which are struck down accordingly.

(R.A.) Petition disposed of

PLJ 2014 Karachi 195 (DB)

Present: Muhammad AliMazhar & Abdul Rasool Memon, JJ.

ASGHAR KHAN & others--Petitioners

versus

PROVINCE OF SINDH through Home Secretary and 4 others--Respondents

C.P. No. D-723 of 2011, decided on 12.5.2014.

Constitution ofPakistan, 1973--

----Art. 199--Police Rules, 1934, R. 12.16--Constitutional Petition--Non issuance of appointment order as police constables--Consent order was passed that petitioners who were before Court shall be entertained by police department for employment--Benefit of order passed in petition cannot be given after long delay--Question of--Whether candidates had vested legal right for enforcement under Art. 199 of Constitution--Validity--If it was a case of any discrimination as alleged petitioners should have approached to was Court immediately rather than to waste substantial time--Court refused to exercise its discretion where petition was delayed was not limitation but matters relating to conduct of parties and change in situation--Laches in simplest form mean failure of a person to do something which would have been done by him within a reasonable time if remedy of constitutional petition was not availed within reasonable time interference can be refused on ground of laches--Grant of relief in writ jurisdiction is discretionary, which was required to be exercised judiciously--No hard and fast rule can be laid down for exercise of discretion by Court for grant or refusal of relief in exercise of extraordinary jurisdiction--Petition was dismissed.

[P. 201] A & B

Mr. Abdul SalamMemon, Advocate for Petitioners.

Mr.Sibtain Mehmood, AAG for Respondents.

Date of hearing: 14.2.2014.

Order

Muhammad Ali Mazhar, J.--The petitioners have brought this constitutional petition for declaration that non-issuance of appointment orders and posting orders of the petitioners as Police Constables in BS-5 by the respondents after complying with all codal formalities is unwarranted in law and they have also prayed that the respondents may be directed to issue their appointment orders.

1. Brief facts of the case are that in the year 2008 advertisement was published in the daily newspaper for the vacant posts of Police Constables. All the petitioners applied for within stipulated period of time and submitted all requisite documents with their educational testimonials. They were issued call letters with the directions to appear for physical test and they were declared successful candidates, thereafter, the petitioners were called and appeared in the written examination in which also they were declared successful. After qualifying the written test the petitioners were called upon to appear before Medical Superintendent for medical examination, which was conducted on 14.5.2009 for few petitioners and for other petitioners the medical examination was conducted on 10.9.2009 for which they submitted requisite medical fee.

2. Learned counsel for the petitioners argued that despite fulfilling all codal formalities the formal appointment letters were not issued. Learned counsel further argued that vested right has accrued in favour of the petitioners who were declared qualified through proper channel, so they have legitimate expectation to be appointed. It was further argued that some of the candidates who were part of the same batch of the petitioners were given appointment letters and they also completed their training course, but the discrimination has been committed with the present petitioners. Learned counsel has referred to the order passed in C.P.No. D-2016/2009 in which 42 petitioners were ordered to be appointed hence, learned counsel argued that present petitioners deserve the same treatment and refusal to appoint them is against the tenet of law and good governance.

3. Learned counsel for the petitioner also referred to Rule 12.16, Chapter XII of (Appointments and Enrolments) Police Rules, 1934, which reads as under:--

"Every recruit shall, before enrolment, be medically examined and certified physically fit for service by the Civil Surgeon. A certificate, in the prescribed form (10-64), signed by the Civil Surgeon, personally, is an essential qualification for enrolment (vide Fundamental Rule 10). The examination by the Civil Surgeon will be conducted in accordance with the instructions issued by the medical department and will test the eyesight, speech and hearing of the candidate, his freedom from physical defects, organic or contagious disease, or any other defect or tendency likely to render him unfit, and his age. The candidate must strip for examination, a loin covering being allowed except when the examination is being completed, and candidate who refuses to do so must be rejected. The conditions of police service make it necessary that the medical examination of candidates should be strict. Candidates shall be rejected for any disease or defect which is likely to render them unfit for the full duties of a police officer.

(a) Superintendents are themselves responsible for rejecting candidates whose general standard of physique and intelligence is unsatisfactory only those candidates should be sent for medical examination whom the Superintendent has accepted as being up to the required standards in these respect.

The purpose of referring to the above rule as argued by the learned counsel is to show that codal formalities were fulfilled by the petitioners and their credentials were found satisfactory so that they were sent for medical examination otherwise there was no question to refer to them for medical examination. Learned counsel further argued that earlier this aspect was not considered by the other learned benches of this Court who disposed of other petitions based on similar controversy and the numbers of which petitions are mentioned in the counter affidavit filed by the Respondent No. 4, hence the judgments of earlier benches of this Court are per incuriam in which the implication of aforesaid rule was not considered while disposing of the petitions.

1. To a question raised by the this Court that the petitioners applied for the said post in the month of June, 2008 and the medical examination was conducted on 14.5.2009 but they have filed this petition in the month of March, 2011, why the case is not hit by laches. Learned counsel responded that the petitioners are continuously approaching the competent authority, however, he mainly focused on the premise that on 31.12.2009 against the similar cause of action 42 others petitioners in C.P.No. D-2016/2009 were ordered to be appointed therefore, the present petitioners are claiming the same treatment. In support of his argument, he relied upon the following case law:

(1) 1988 P.L.C. (C.S) 344 (Manthar Ali M. Jatoi v. Government of Sindh). Although appointment to civil service has to be made by competent authority but such appointment was required to be made on the recommendation of Public Service Commission, in order to refuse to accept recommendation of Public Service Commission, competent authority, has to act under some rule or at least for some cogent reason which factors were absent in the case of petitioner. Every person is entitled to be treated in accordance with law. Petitioner could not have been dealt with arbitrarily in the matter of his appointment.

(2) 1995 C.L.C. 1453 (Abdul Razzak v. The Collector of Customs & another). As per incuriam decision, even if of the highest Court, does not bind any other Court and it matters little that such Court itself be at the lowest rung in the hierarchy of Courts.

(3) 2012 P.L.C. (C.S) 218 (State Bank of Pakistan v. Imtiaz Ali Khan & others). Laches is a doctrine where under a party which may have a right, which was otherwise enforceable, losses such right to the extent of its enforcement, if it is found by the Court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party, but he cannot enforce it. The limitation is examined by the Limitation Act, 1908 or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved does not approach the appropriate forum within the stipulated period/time, the grievance though remains, but it cannot be redressed because if on the one hand there was a right with a party which he could have enforced against the other, but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.

1. The Respondent No. 4 has filed his comments in which clear plea was taken that all the petitioners failed to achieve the threshold of 125 marks in the process of recruiting hence they were not considered for appointment as police constables. In the comments the Respondent No. 4 has mentioned various petition numbers which were earlier decided by this Court relating to the same controversy though the petitioners were different. It was further stated that C.P.No. D-255 of 2010 was disposed of by this Court in which the review application was filed but the same was dismissed by this Court. Against the said order, the petitioners filed leave to appeal CPLA No. 386-K of 2010 in the hon'ble Supreme Court of Pakistan, which was also dismissed. It is further stated in the comments that the same learned counsel appearing for the petitioners appeared in many similar cases which were filed in the year 2010 and the same were disposed of by this Court. In support of his argument learned AAG has relied upon the following case law:--

(1) PLD 2007 S.C. 472 (Jawad Mir Muhammadi & others v. Haroon Mirza & others). Article 199. Constitutional petition. Laches. Principles. Laches per se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case. Question of delay/laches in filing constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for delay in filing constitutional petition, the same cannot be overlooked or ignored subject to facts and circumstances of each case.

(2) 1995 SCMR 698 (Chairman, PCSIR v. Dr. Mrs. Khalida Razi). Article 185. Constitution of Pakistan 1973, Employee's Constitutional petition before High Court suffered from gross laches. Such fact by itself was sufficient to deny her relief sought in the constitutional petition. Anyone seeking restoration to the office from which he/she had been removed in an illegal manner was required to show some measure of diligence which had been entirely wanting in the case.

(3) 2005 SCMR 534 (Secretary Finance v. Ghulam Safdar). Articles 185, 199 and Part II, Chapter I. Constitutional petition. Fundamental Rights. Civil service. Mere selection in written examination and interview test would not, by itself, vest the candidate with a Fundamental Right for enforcement as such in the exercise of Constitutional jurisdiction of the High Court. Authorities admittedly had not issued any offer of appointment to the candidates and their appointment was subject to clearance by the establishment division under the Centralized System of Recruitment. High Court, in circumstances was not right in overlooking such aspects of the case while issuing writ of mandamus. It is hard to accept whether the candidates had a vested legal right for enforcement under Article 199 of the Constitution on the date when they file the writ or that the authorities were under a legal duty to issue order of appointment without completing and observing all legal requirements.

1. The learned AAG opposed the maintainability of the petition on the ground of laches as the petitioners applied against the posts of police constables in response to the advertisement published in daily Jang on 12.6.2008 and according to them their medical examination of the few petitioners was conducted on 10.9.2009 and few petitioners were examined on 18.11.2009, while petition was filed in this Court after about 15 months. He further argued that no plausible reason has been given in the memo. of petition to say that what prevented the petitioners not to approach this Court immediately and why they were waiting for such a long time.

2. What we have observed from Paragraph 16 of memo. of petition that the petitioners have claimed the same relief granted in favour of 42 petitioners in C.P.No. D-2016 of 2009 on 31.12.2009. We have seen the order passed by the learned division bench of this Court whereby consent order was passed that the petitioners who were before the Court shall be entertained by the police department for employment as police constable after they clear their medical test subject to other necessary formalities viz checking of antecedents etc. and finally after considering the cases of some other interveners, the petition was disposed of vide order dated 19.1.2010. It is also a fact that the present petitioners are seeking the benefit of the order dated 31.12.2009 but they have approached this Court on 10.3.2011.

3. Learned AAG along with the comments attached a copy of various orders passed by this Court in other petitions in which it was clarified that in response to the advertisement published in the year 2009, 125 marks were required to be obtained by every applicant. So in the present case the learned AAG has filed the comments and come up with the plea that none of the present petitioners secured 125 marks, hence, they are not entitled for the relief claimed. While learned counsel for the petitioners argued that once the letter for medical examination is issued it means that the petitioners had cleared the written test otherwise there was no need to issue letter for medical examination. The same learned counsel filed a review application in C.P.No. 255/2010 against the order dated 12.3.2010 on the ground that after issuing medical letters there was no question of reviewing their threshold marks in the written test. The review application which was disposed of with the direction that all those candidates who were not entertained by the police department and who appeared in the 2008 and 2009 batches shall again apply for another prospective vacancies in the police department for the police constables. They shall be subject to written test and interview but their threshold marks shall be 90 for those who applied in the 2008 batch and 125 for those who applied in 2009. If they clear the written test and interview and also medical test and their antecedents are verified as per the rules then they shall be given appointment letter and they shall be given priority over the fresh candidates. Being dissatisfied the petitioners filed C.P.L.A No. 386-K of 2010 in the hon'ble Supreme Court but leave to appeal was refused and the petition was dismissed.

4. We would like to point out that counsel for the petitioner in C.P. No. 255/2010 was also Mr.Abdul Salam Memon, who is counsel for the petitioners in the instant petition. No plausible or logical justification has been offered in the memo. of petition to show as to why the petitioners were waiting such a long time to approach this Court. Question of laches in the case of employment has much significance and due to inordinate delay the things and circumstances are enormously changed. The petitioners applied in 2008 batch but instead of approaching vigilantly they maintained complete silence and were in deep slumber. Due to recklessness and lethargic attitude in approaching the Court of law in the service matters the entire complexion and scenario become changed and the concerned department cannot force to provide job to an indolent petitioner to treat him at par with other candidates of 2008 batch which matter has become a past and closed transaction. Likewise the benefit of order passed in earlier C.P. cannot be given to the present petitioner after such a long delay in which the matter of recruitment pertaining to 2008 batch is over. The Rule 12.16 of Police Rules has no germane to the present controversy even we do not find out any judgment per incuriam decided. The earlier C.P. was disposed of by consent to settle some modalities to examine and treat the candidates of 2008 and 2009 batches separately with a different threshold. If it was a case of any discrimination as alleged the petitioners should have approached to this Court immediately rather than to waste substantial time. The honorable Supreme Court in the case of Ghulam Safdar (supra) held that mere selection in written examination and interview test would not, by itself, vest the candidate with a Fundamental Right for enforcement as such in the exercise of Constitutional jurisdiction of the High Court. Authorities admittedly had not issued any offer of appointment to the candidates. In the present case also it is hard to accept whether the candidates had a vested legal right for enforcement under Article 199 of the Constitution on the date when they file this petition. We feel no hesitation in our mind to hold that the petition is hit by laches. The consideration upon which the Court refuses to exercise its discretion where the petition is delayed is not limitation but matters relating to the conduct of parties and change in the situation. Laches in simplest form mean failure of a person to do something which should have been done by him within a reasonable time if remedy of constitutional petition is not availed within reasonable time the interference can be refused on the ground of laches. Even otherwise, grant of relief in writ jurisdiction is discretionary, which is required to be exercised judiciously. No hard and fast rule can be laid down for the exercise of discretion by the Court for grant or refusal of the relief in the exercise of extraordinary jurisdiction.

5. As a result of above discussion, this petition is dismissed.

(R.A.) Petition dismissed

PLJ 2014 Karachi 202

Present: Muhammad AliMazhar, J.

HYDER LADHU JAFFER & another--Plaintiffs

versus

HABIB BANK LTD. & others--Defendants

Suit No. 385 of 1996 and C.M.A. No. 3650, 3125 of 2012, decided 29.11.2013.

Limitation Act, 1908 (IX of 1908)--

----Art. 23--Suit for damages on account of malicious prosecution was dismissed being time barred--Cause of action--Limitation was date when plaintiff was acquitted--Limitation for filing suit for compensation on account of malicious prosecution was one year--Suit was time barred due to summer vacation--Once suit was instituted on first opening day impediment of limitation does not come in way of plaintiff--Validity--Limitation for filing suit, for compensation on account of malicious prosecution is one year and starting point of limitation is date when plaintiff is acquitted and prosecution is otherwise terminated--Cause of action was accrued on date when High Court acquitted plaintiffs in original proceedings--Keeping in view averments made in plaint suit is apparently time barred and date of its institution is much after period of one year limitation prescribed under Art. 23 of Limitation Act and accordingly suit was dismissed under Section 3 of Limitation Act, but matter does not end here--Plaintiffs were out of country hence they could not promptly approach High Court--Information of dismissal of suit came into their knowledge through its reporting in Law Journal--Before instant application they moved similar application for recalling order, which was also dismissed for non-prosecution--No notice was issued and application was dismissed without issuing any notice to them. [P. 211] A, B & C

Legal Plea--

----It well settled proposition of law that legal plea can be raised at any stage even up to level of appellate forum. [P. 211] D

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

----O. VII, R. 6--Limitation Act, (IX of 1908), Ss. 12 to 20--Matter of procedure--Computation of period of limitation--Where suit was instituted after expiration of period by law of limitation, plaint shall show ground by which exemption from such law was claimed--Computation of period of limitation was provided under Sections 12 to 20 of Limitation Act, while limitation of suits, appeals and applications are provided under Sections 3 to 11 of Limitation Act. [P. 212] E

Limitation Act, 1908 (IX of 1908)--

----S. 4--Period of limitation--Suit, appeal or application to be filed on reopening of Court--Closure on day when limitation expires--Validity--Section 4 of Limitation Act, does not extend period of limitation prescribed under law but it simply permits a suit, appeal or application to be filed on re-opening of Court if period of limitation expires on a day when Court is closed. [P. 212] F

Jurisdiction of Principal Seat--

----Original jurisdiction of High Court--High Courts were closed for civil business on account of summer vacations--It is also well known fact that Court at its principal seat exercises its original side jurisdiction for civil suits which jurisdiction is not available to other High Courts except Islamabad High Court and while exercising its original jurisdiction High Court exercises powers of Civil Court. [P. 212] G

Limitation Act, 1908 (IX of 1908)--

----S. 4--Recalled and reviewed of judgment--Limitation--Plaint was instituted very first day of reopening of Court after summer vacation--Validity--It is not time barred and institution on first re-opening day is duly protected under Section 4 of Limitation Act and since such important aspect escaped attention of Court or it was never pointed out, therefore, judgment was liable to be recalled and reviewed. [P. 213] H

Limitation Act, 1908 (IX of 1908)--

----S. 3--Civil Procedure Code, (V of 1908), O. VII, R. 11--Suit was not barred by limitation--Application for recalling order or reviewing order--Suit was not rejected under Order 7, Rule, 11 CPC--Validity--Order was passed without considering a particular aspect that suit was instituted on first opening day according to which suit was not barred by limitation, so instead of preferring appeal they had filed an application in first instance for recalling order or reviewing order. [P. 215] I

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

----O. XLVII, R. 1 & S. 151--Grounds on which review can be sought--Application was moved u/S. 151, CPC but purpose and crux of application means to filing of review application--Validity--A review can be filed for rectification of any mistake or error apparent on face of record--Such mistake or error may be one of law which can be established without elaborate arguments--Error must have also substantial effect on fate of case and error apparent from face of record may be corrected without driving a party to appeal. [P. 215] J

Limitation Act, 1908 (IX of 1908)--

----S. 4--Delay if any for filing application for review of judgment was condoned and by treating application as review petition--Non compulsion or obligation to institute plaint during period of limitation--Validity--Judgment and decree both were liable to be recalled, and plaintiff was entitled to benefit of Section 4 of Limitation Act--No compulsion or obligation upon plaintiff to institute plaint during period of vacation and very language of the notification amply demonstrates that petition could be received from persons who choose to present them except on public holidays--No hesitation to hold that if plaintiff felt no urgency or did not opt to institute plaint during vacations, this does not mean that benefit of Section 4 of Limitation Act is wiped out which is always a beneficial provision in nature and plaintiff cannot be non-suited. [P. 216] K & L

Ms. SabaLatif, Advocate for Plaintiffs along with Mr. Taffazul Haider Rizvi, Advocate/Attorney of Plaintiff No. 1.

Mr.Ghulam Murtaza, Advocate (M/s. Liaquat Merchant Associates) for Defendant Nos. 1, 3, 6, 7, 8 & 9.

Date of hearing: 12.9.2013.

Order

Through the instant applications, the plaintiffs have prayed that the judgment dated 31.8.2010 and decree, whereby the suit was dismissed being time barred under Article 23 of the Limitation Act be recalled/reviewed. Along with this application moved under Section 151 C.P.C, the plaintiffs have also filed application under Section 5 of the Limitation Act for condonation of delay.

1. The brief facts of the case are that the plaintiffs had filed this suit for damages on account of malicious prosecution. In the plaint it was alleged that the cause of action was accrued to the plaintiffs on 20.7.1994 and it was an admitted fact that the suit was filed on 6.8.1995 and vide order dated 24.11.2008, this Court took judicial notice that from the averments made in the plaint, the suit appears to be time barred under Article 23 of the Limitation Act. Therefore, in presence of the counsel for the plaintiffs and Defendant Nos. 1 to 9, a preliminary legal issue as under:--

"Whether the suit filed by the plaintiff is time barred."

1. After settlement of an issue of law, the office was directed to fix the suit for hearing of preliminary issue. Record reflects that since 19.4.2010, nobody appeared for the plaintiffs to argue the issue framed by the Court. On 23.8.2010, I partly heard the learned counsel for the defendants and since nobody was present for the plaintiffs, in the interest of justice, I directed the office to issue notice to the plaintiffs for 31.8.2010 but despite notice, nobody appeared to address the preliminary issue. After examining the averments made in the plaint and also keeping in view the Article 23 of Limitation Act, I dismissed the suit, which was on the face of it a time barred suit.

2. After dismissal of the suit, the plaintiffs filed CMA No. 379/2011 on 12.1.2011 under Section 151, CPC for recalling the order which order according to them came into their knowledge through law journal "2010 CLD 1541". It was further stated in the same application that the counsel for the plaintiffs was an outside counsel and he was not served with any notice of hearing therefore, he could not appear. It was further claimed in the application that notice of hearing for 31.8.2010 was issued on 25.8.2010, which was dispatched by the office on 26.8.2010 through ordinary post, which was never received by the counsel for the plaintiffs. This application was fixed in Court for orders on 11.5.2011 when again the counsel for the plaintiffs was called absent, hence, this application was also dismissed for non-prosecution, thereafter, the plaintiffs moved the present application for recalling the order.

3. The learned counsel for the plaintiffs argued that the plaintiffs received the information regarding the dismissal of the suit when the judgment was reported in the above Law Journal on 03.01.2011. It was further contended that the application for recalling the order was filed when the claim of set off filed by the defendants was fixed for evidence in Court. Since no notice was issued hence, the plaintiffs' counsel could not appear in this Court from Lahore. Restoration application was fixed for orders and due to default the application was dismissed for non-prosecution. It was further argued that counsel for the plaintiffs Mr.Talib Rizvi, who was practicing in Lahore expired in the month of January, 2012. Neither the applicant's attorney who is also based in Lahore nor his counsel's office received any notice of the date of hearing nor due to non-service of notice could the advocate appear. The learned counsel argued that the delay if any may be condoned. So far as the reasons for recalling the order is concerned learned counsel mostly reiterated the same arguments that counsel for the plaintiffs was expired and no notice was ever issued regarding the date of hearing. Besides above, it was further argued that the suit was dismissed without providing opportunity of fair trial as envisaged under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, which is a fundamental right of the plaintiffs. On 19.12.2012, while arguing the applications, learned counsel for the plaintiffs raised a question of law and also placed a copy of notification dated 21.3.1995, which was issued by the then Registrar of this Court. This notification pertains to the announcement of summer vacations commenced from 04.06.1995 to 05.08.1995 and according to which the Courts were to be reopened on Sunday, the 6th August, 1995. Though no such ground was incorporated in the application for claiming any exemption for the period of limitation but while placing the notification on record it is clear that in the aforesaid period this Court observed summer vacations. For ready reference the notification is reproduced as under:

"THE HIGH COURT OF SINDH, KARACHI

No. GAZ/XVII. 13, dated Karachi the 21st March, 1995.

NOTIFICATION

It is hereby notified for general information that the High Court of Sindh, Karachi and its Benches at Sukkur, Hyderabad and Larkana will be closed for civil business on account of Summer Vacation from Sunday the 4th June, 1995 to Saturday the 5th August. 1995 and will re-open on Sunday the 6th August. 1995.

The Court and Office of the High Court of Sindh at Karachi and its Benches at Sukkur, Hyderabad and Larkana will observe the following timings during the ensuing Summer Vacation:--

COURT TIMINGS (From Sunday to Thursday)

09.30 a.m. to 11.00 a.m Court Sittings

11.00 a.m. to 11.30 a.m Interval

11.30 a.m. to 01.30 p.m Court Sittings

OFFICE TIMINGS (From Sunday to Thursday)

09.00 a.m. to 02.00 p.m (Without break)

During the said period of Vacation. Petitions will be received daily from the persons who choose to present them except on Public Holidays. All such petitions and other miscellaneous petitions which cannot be disposed of at once, will be heard on the re-opening day of the Court after Summer Vacation on the dates that may be fixed.

BY ORDER OF THE HIGH COURT

REGISTRAR"

1. Since the notification was produced randomly in Court during the course of arguments thus in order to provide a fair opportunity of rebuttal, I deemed it proper to provide an opportunity to the counsel for the defendants to examine the notification and copy of notification was supplied to him.

2. Learned counsel argued that if notification is considered, the suit is not time barred as it was presented on first opening day and since nobody was present for the plaintiffs to highlight this important aspect hence, this notification escaped the attention of this Court. She further argued that no doubt on plain reading of the plaint the suit appears to be time barred under Article 23 of the Limitation Act, but due to summer vacations, the limitation in filing the suit was extended up to 6.8.1995 on which date the plaint was properly instituted in this Court, therefore, on this ground alone the order is liable to be recalled as the very root of the order is based on limitation and once the suit was instituted on first opening day the impediment of limitation does not come in the way of plaintiffs. In support of her arguments learned counsel for the plaintiffs relied upon the following case law:--

(1) 2007 SCMR 1256 (Mst.Razia Jafar & others v. Govt. of Balochistan & others). It is a settled maxim that nobody shall be prejudiced by the act of the Court or act of the public functionaries. Ahmad Latif Qureshi v. Controller of Examination PLD 1994 Lah. 3, Arshad Hussain's case 1991 CLC Note 20 at page 13, Mian Irshad Ali's case PLD 1975 Lah. 7 and Fateh Khan's case PLD 1991 SC 782.

(2) 2005 SCMR 720 (Mian Muhammad Talha Adil v. Mian Muhammad Lutfi). No person should suffer for act or omission of Court and act of Court should not prejudice anyone.

(3) 2010 SCMR 1408 (Government of NWFP & others v. Akbar Shah & others). Duty of Courts to apply correct law. Failure of counsel to properly advise would not be a complete excuse. Judge must wear all laws of country on sleeve of his rob. Primary duty of Courts and other adjudicating forums would be to decide lis before them in accordance with law. Courts/forums would not be relieved of such duty on account of fact or mean of litigation or of a lawyer.

(4) 2001 SCMR 1822 (Ali Muhammad v. Chief Settlement Commissioner & others). No period of limitation would run against a void order.

(5) 2003 SCMR 1772 (Muhammad Yar v. Muhammad). Section 4 revolves around two maxims i.e. "Lex nori cogit ad impossiblia" (law does not compel a man to do that which he cannot possibly perform) and "Actus Curiae neminem gravabit" (an act of Court shall prejudice no man). Period of limitation is not amended/modified/ altered or changed by such provisions. Section 4 has no concern whatsoever with computing prescribed period, but where such period expires on a day, when Court was closed, then plaints/petitions/applications may be preferred on the day, when Court re-opens.

(6) 1980 SCMR 375 (Ikramullah v. Said Jamal). Section 4 simply permits a suit, appeal or applications to be filed on re-opening of Court, if period of limitation expired on a day when Court closed. Principle in underlying section is plaintiff or applicant not to be prejudiced by act of Court, namely its closure on day when limitation expires.

(7) 2000 SCMR 354 (Nooruddin & others v. Pakistan). Provision of Section 4 Limitation Act, 1908 enables a suitor, appellant or applicant, in cases where the period of limitation for his suit, appeal or application expires on a day when the Court is closed, to institute prefer or make such suit, appeal or application as the case may be, on the day Court re-opens. Section 4 of the Limitation Act enables a suitor, appellant or applicant, in cases where the period of limitation for his suit, appeal or application expires on a day when the Court is closed, to institute, prefer or make such suit, appeal or application, as the case may be on the day the Court re-opens. Where the Limitation Act provides an extension in the period of limitation, such as under the bulk of Sections 6 to 24, the person concerned may add such period to that in contemplation of the First Schedule to the Limitation Act, and if the combined period so arrived at expires when the Court is closed, including when it is closed for vacation, the relevant suit, appeal or application, taking benefit from Section 4 of the Limitation Act, may be instituted, preferred or made on the date the relevant Court reopens.

1. Conversely, the learned counsel for the defendants argued that the application is time barred and liable to be dismissed. The application filed for recalling the order dated 31.8.2010 is not competent and the plaintiffs have failed to file application under relevant provision of law. Learned counsel further argued that mere engagement of a counsel is not enough but the party is responsible to pursue their case diligently. It was further stated that no personal affidavit has been filed by the plaintiffs in support of their application under Section 151, CPC in order to justify their absence in pursuing their claim. The suit was dismissed as time barred and its restoration will tantamount to permit the institution of a new suit for the trial. Learned counsel also rebutted the claim of non-service of the notice. It was contended that various notices were issued to the plaintiffs, but they failed to respond and finally on 31.8.2010 when counsel for the plaintiffs failed to appear, this Court heard the case and decided the same. Learned counsel further argued that according to Sindh Chief Court Rules, the Registrar (O.S) on every Saturday fixes the date in suits hence it was the duty of plaintiffs' advocate to remain in the office at the time of fixation of date so that the date may be noted. It was further averred that the rejected plaint, cannot be restored under the inherent jurisdiction of the Court and proper remedy was to file appeal or revision. Learned counsel made much emphasis that rejection of the plaint is tantamount to passing of decree which is challengeable in the appeal. So far as the notification of summer vacation is concerned, the learned counsel argued that Section 4 of the Limitation Act only applies where no arrangement exists for receiving petition. Despite summer vacations, the offices of the Court were opened and there was no impediment not to institute the plaint and according to the said notification this Court was opened for institution of some lis hence, period of limitation could not be enlarged under Section 4 of the Limitation Act. In support of his arguments, the learned counsel relied upon the following case law:--

(1) 2003 SCMR 157 (Memon Educational Board & Society Karachi v. Munawar Hussain). Section 2(2), 96 & Order VII Rule 11. Rejection of plaint tantamount to passing of a decree under Section 2(2), CPC and the same is challengeable in appeal under Section 96 CPC.

(2) PLD 1963 Karachi 883 (Sirajuddin v. Muhammad Sharif). Civil Procedure Code (V of 1908) Order VII Rule 11 and 13 and Section 151. Time barred suit. Rejected plaint cannot be restored by invoking inherent powers under Section 151.

(3) 2006 CLC 618 (Muhammad Shareef v. Muhammad Ramzan & others). According to notification of High Court dated 14.5.1998, summer vacations started from 13th July up to 12th September, but its Registry remained open during vacations for receipt of all kinds of petitions on working days. In spite of closure of High Court for regular work during such vacations, alternate arrangements had been made for receipt of petitions involving question of limitation. High Court during vacations would be deemed to be open for institution of some lis. Period of limitation, thus, could not be enlarged under cover of Section 4 of Limitation Act, 1908. Preparation of memorandum of revision and its filing on 14.9.1998 showed that petitioner had not made any effort to file same within prescribed time.

(4) 1971 SCMR 779 (Jumma v. Maulvi Mubarak). Constitution of Pakistan (1962), Article 58(3) read with Supreme Court Rules, 1956, Order XIII Rule 1. Delay of 68 days in filing petition for Special Leave to Appeal. Delay explained as due to fact that Supreme Court was closed for long vacation. Held. Offices of Supreme Court remain open during vacation and delay, in circumstances, could not be condoned.

(5) 1999 SCMR 108 (Lehar Khan & others v. Amir Hamza & others). When Supreme Court was in vacation, Registries were always open for receiving petitions and other work. Judges of Supreme Court invariably work throughout vacation. Provisions of Order II Rule 2 Supreme Court Rules, 1980 specifically provide for offices of Court to remain open during summer vacation and winter holidays. Registries of Supreme Court were non-vacation offices. Offices of Supreme Court being open for receiving petitions and for doing other work, Provision of Section 4. Limitation Act, 1908 would not be applicable.

(6) 1970 SCMR 234 (M/s. M.A. Nawaz & Co. & others v. National Bank of Pakistan). Supreme Court Rules 1956 Order XIII Rule 1 read with Limitation Act (IX of 1908) Section 4. Petition for Special Leave to Appeal barred by time. Contention that Court closed for long vacation and therefore, extension of time could be claimed under Section 4 Limitation Act, 1908. Held. Provision of Section 4 applicable only where no arrangement exist for receiving petitions etc. Registries of Supreme Court open during vacation for receiving petitions etc.

(7) 1995 MLD 1042 (Khushi Muhammad v. Muhammad Sharif). Section 4., CPC (V of 1908) Section 100. Appeal, Limitation. Judgment of lower Appellate Court was dated 10.4.1985, while appellants applied for copies on 15.4.1985 and certified copies were delivered to them on 20.5.1985. Memorandum of appeal was presented in High Court on 19.8.1985 during summer vacation. Limitation of 90 days expired on 15.8.1985 while appeal was presented on 19.8.1985 which was barred by five days. Provision of Section 4 Limitation Act, 1908, whereby appeals etc. could be filed on reopening of Court was not applicable for prevailing practice was that the Benches of High Court as also registry remained open throughout the vacation and appeal, application etc. were received during vacations.

1. Heard the arguments. It is an admitted position that the suit was instituted in this Court on 6.8.1995 and in Paragraph 31 of the plaint it is clearly mentioned that the cause of action accrued to the plaintiff on 20.7.1994 according to Article 23 of the Limitation Act, the Limitation for filing suit, for compensation on account of malicious prosecution is one year and the starting point of limitation is the date when plaintiff is acquitted and the prosecution is otherwise terminated. The cause of action was accrued on 20.7.1994 which is the date when this Court acquitted the plaintiffs in the original proceedings. Keeping in view the averments made in the plaint the suit is apparently time barred and the date of its institution is much after the period of one year limitation prescribed under Article 23 of the Limitation Act and accordingly the suit was dismissed under Section 3 of the Limitation Act, but the matter does not end here. In both the applications one moved under Section 151, CPC with enabling provisions of, CPC and the application under Section 5 of the Limitation Act, mostly the learned counsel for the plaintiff taken the ground of non-service of notice when the matter was fixed for hearing and decision of the preliminary issue. This ground was also taken that the senior counsel died and the plaintiffs were out of country hence they could not promptly approach this Court. They also pleaded that information of the dismissal of the suit came into their knowledge through its reporting in the Law Journal. It is also a matter of fact that before instant application they moved the similar application for recalling the order, which was also dismissed for non-prosecution for winch also the plaintiffs' counsel argued that no notice was issued and the application was dismissed without issuing any notice to them. In my view all these grounds are immaterial as it was the responsibility of the plaintiffs and their counsel to pursue their lis diligently. I myself issued notices to them before passing the judgment, but they never appeared. However, during the course of arguments on 19.12.2012, the learned counsel for the plaintiffs produced a notification of summer vacations observed by this Court from Sunday 04.06.1995 to Saturday 05.08.1995 and according to notification the first opening day was 06.08.1995. Since this notification was produced during course of arguments and a law point was raised, therefore, I deemed it appropriate to supply copy of notification to the counsel for the defendants so that he may not be taken into surprise and I also afforded opportunity to the learned counsel for the defendants to come prepared on the next date so that he may be able to confront this legal plea which came to rescue the plaintiffs' case as blessing in disguise as no such ground was initially taken in the application for recalling the order. It well settled proposition of law that the legal plea can be raised at any stage even up to the level of appellate forum.

2. Under Order VII Rule 6 CPC, it is clearly provided that as a matter of procedure where the suit is instituted after the expiration of the period by the law of limitation, the plaint shall show the ground by which exemption from such law is claimed. The computation of period of limitation is provided under Sections 12 to 20 of the Limitation Act while limitation of suits, appeals and applications are provided under Sections 3 to 11 of the part 2 of the Limitation Act. Section 4 in the case in hand is relevant which is reproduced as under:

"4. Where Court is closed when period expires.--Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens."

1. Section 4 of the Limitation Act does not extend the period of limitation prescribed under the law but it simply permits a suit, appeal or application to be filed on re-opening of the Court if the period of limitation expires on a day when the Court is closed. The language of Section 4 itself speaks of the expiry of the period of limitation and the principle underlying the section is that the plaintiff or the applicant should not to be prejudiced by the act of Court, namely, its closure on day when limitation expires. It does not extend the period of limitation, but merely provides a device to overcome the closure of the Court on the day the limitation expires. Reference can be made to the case of Ikramullah & others v. Said Jamal reported in PLD 1980 SCMR 375.

2. It is clear from the notification dated 21.3.1995 issued by the then learned Registrar of this Court that this Court, and its benches at Sukkur, Hyderabad and Larkana were closed for civil business on account of summer vacations from Sunday 04.06.1995 to Saturday 05.08.1995 and were reopened on Sunday 06.08.1995. According to this notification the Courts were closed for civil business during summer vacations, however, it was further mentioned in the notification that during the period of vacation the petitions were to be received daily from the persons who choose (emphasis added) to present them except on public holidays and all such petitions and other misc. petitions which cannot be disposed of at once were required to be heard on the reopening day of the Court after summer vacations on the dates that may be fixed. However, it was left open to the discretion of the petitioners to institute the petition if they choose to present during summer vacations. It is also well known fact that the Court (Sindh High Court) at its principal seat exercises its original side jurisdiction for the civil suits which jurisdiction is not available to the other High Courts except Islamabad High Court and while exercising its original jurisdiction this Court exercises the powers of Civil Court. Reference can be made to judgment of Divisional Bench of this Court authored by me in the case of (Muhammad Naved Aslam & others v. Mst. Aisha Siddiqui & others) reported in 2011 CLC 1176 in which it was held that while exercising powers on original side, this Court is in fact exercises jurisdiction in the civil district of Karachi as was exercisable immediately before the commencement of establishment of West Pakistan High Court Orders by the Chief Court of Sindh under Section 8 of the Sindh Courts Act 1926. The Karachi Bench of the Sindh High Court is functioning or exercising powers and performing duties as the principal Civil Court of original jurisdiction in the civil district of Karachi.

3. According to the Paragraph 31 of the plaint, the cause of action was accrued on 20.7.1994 and according to the limitation prescribed in the Limitation Act, the suit was required to be instituted on 19.7.1995 during which period this Court was observing summer vacations up to 5.8.1995 and the first reopening day was Sunday 06.08.1995 on which date the plaint was instituted, hence the learned counsel for the plaintiffs argued that since the plaint was instituted on very first day of reopening of the Court, after summer vacation, therefore, it is not time barred and the institution on first re-opening day is duly protected under Section 4 of the Limitation Act and since this important aspect escaped the attention of the Court or it was never pointed out, therefore, judgment dated 31.8.2010 is liable to be recalled and reviewed.

4. Learned counsel for the plaintiffs referred to the cases of Mst. Razia Jafar, Mian Muhammad Talha Adil and Government of NWFP in which the apex Court held that nobody should be prejudiced by the act of Court or act of the public functionaries. For the act and omission of the Court it was further held that it is the duty of the Court to apply correct law. The judge must wear all laws of country on sleeve on his rob and the primary duty of Courts would be to decide lis before them in accordance with law. In the case of Ali Muhammad it was held that no period of limitation would run against a void order while in the case of Muhammad Yar the hon'ble Supreme Court held that Section 4 revolves around two maxims i.e. "Lex nun cogit ad impossible" (law does not compel a man to do that which he cannot possibly perform) and "Actus Curiae neminem gravabit" (an act of Court shall prejudice no man). Period of limitation is not amended/modified/altered or changed by such provisions. Section 4 has no concern whatsoever with computing prescribed period, but where such period expires on a day, when Court was closed, then plaints/petitions/applications may be preferred on the day, when Court re-opens. In the case of Nooruddin the hon'ble Supreme Court held that the Limitation Act provides on extension in the period of limitation such as under the bulk of Sections 6 to 24, the person concerned may add such period to that in contemplation of first schedule of the Limitation Act and if the combined period so arrived at expires when the Court is closed, including when it is closed for vacation, the relevant suit, appeal or application taking benefit from Section 4 of the Limitation Act, may be instituted preferred or made on the date the relevant Court reopens.

5. Learned counsel for the defendants relied upon the cases of Memon Educational Board & Society and Sirajuddin (supra). In both the cases the plaints were rejected under Order VII Rule 11 CPC, hence the Hon'ble Supreme Court held that rejection of plaint tantamount to passing of a decree and the same is challengeable in appeal and in another case it was held that the plaint was rejected under Order VII Rule 11, CPC cannot be restored by invoking inherent powers under Section 151 CPC. Both the precedents are distinguishable as in this case the plaint was not rejected under Order VII Rule 11, CPC but the suit was dismissed under Section 3 of the Limitation Act. Whether the appropriate remedy was appeal or review it will be discussed later. Learned counsel further relied upon the case of Muhammad Shareef in which also the benefit of Section 4 was claimed and the learned Judge observed that the notification depicts that summer vacations of the Lahore High Court for the year 1998 started from 13th July up to 12 September and the first opening day was 13.09.1998 while the civil revision was filed on 14.09.1998. The learned Court held that since the arrangements were made for receiving the petition hence this could not be said that the Courts were closed. In this notification also the first part relates to the civil business for which the Courts were closed while in the later part it is stated that the petition will be received daily from such person as may choose to present them. In my view word "choose" mentioned in the later part of the notification is an option which may or may not be exercised and this word has not been used as compulsion or obligation which may override the specific provision of Section 4 of Limitation Act. He further referred to the case of Jumma in which the Hon'ble Supreme Court held that in terms of Rule 3 of Order II of the Supreme Court Rules, a notification was issued by the Hon'ble Chief Justice in view of the said notification the offices were open for their ordinary and routine business during vacation which includes the reception of petition of special leave to appeal. Since in this case law counsel for the petitioner argued before the Court that in view of Section 4 of the Limitation Act the notification issued by the Hon'ble Chief Justice of Supreme Court was ultra vires, which was not accepted by the Hon'ble Supreme Court and the leave was refused. The mark distinction in this case is that the hon'ble Supreme Court held that the offices of Supreme Court were open for ordinary and routine business in their own rules, hence, this case is distinguishable. In the cases of Lehar Khan and M/s. M.A. Nawaz also the Hon'ble Supreme Court relied upon the Order II Rule 2 of Supreme Court Rules 1980 which provides that except holidays the offices of the Supreme Court shall be open during vacations and the winter holidays. It was further held that registries of Supreme Court are non-vacation offices hence Section 4 of the Limitation Act could not be applied. Again I would like to observe that the judgment of apex Court is based on the premise of its own rules which virtually excluded the operation of Section 4 of the Limitation Act. He further relied upon the case of Khushi Muhammad (supra) in which the second appeal was found barred by time and it was held that the appeal could be filed on the reopening day was not applicable for prevailing practice of the benches of the High Court as also registry remained open throughout vacations.

6. Now I would like to take into consideration the arguments of the learned counsel for the defendant that the plaint rejected under Order VII Rule 11, CPC is a degree and an appeal should have been filed rather than an application under Section 151 CPC. Let me first clarify that in the case in hand the plaint was not rejected under Order VII Rule 11 CPC, but it was dismissed under Section 3 of the Limitation Act. Since the plaintiff is of the view that the order was passed without considering a particular aspect that the suit was instituted on the first opening day according to which the suit was not barred by limitation, so instead of preferring appeal they have filed an application in the first instance for recalling the order or reviewing the order.

7. The nomenclature of application hardly matters but what matters is the pith and substance. Though the application was moved under Section 151, CPC but the purpose and crux of application means to filing of a review application under Order XLVII Rule 1 CPC, in which it is clearly provided that any person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred may apply for review of judgment. The mere fact that an appeal is competent is no ground for refusing review. The grounds on which review can be sought are enumerated in Rule 1 of Order XLVII. A review can be filed for the rectification of any mistake or error apparent on the face of the record. Such mistake or error may be one of law which can be established without elaborate arguments. The error must have also substantial effect on the fate of the case and the error apparent from the face of the record may be corrected without driving a party to appeal. Section 4 of the Limitation Act revolves around two maxims i.e. "Lex non cogit ad impossiblia" (law does not compel a man to do that which he cannot possibly perform) and "Actus Curiae neminem gravabit" (an act of Court shall prejudice no man). Period of limitation is not amended/ modified/altered or changed by Section 4 which has no concern whatsoever with computing prescribed period, but where such period expires on a day, when Court was closed, then plaints/petitions/applications may be preferred on the day, when Court re-opens.

8. Keeping in view the above circumstances, the delay if any for filing application for review of the judgment is condoned and by treating the application as review petition, I am of the firm view that the judgment and decree both are liable to be recalled and the plaintiff is entitled to the benefit of Section 4 of the Limitation Act. Even from the language used in the notification produced by the plaintiff, it is unequivocally vibrant that there was no compulsion or obligation upon the plaintiff to institute the plaint during the period of vacation and the very language of this notification amply demonstrates that the petition could be received from persons who choose to present them except on public holidays. So I have no hesitation in my mind to hold that if the plaintiff felt no urgency or did not opt to institute the plaint during vacations, this does not mean that the benefit of Section 4 of the Limitation Act is wiped out which is always a beneficial provision in nature and plaintiff cannot be nonsuited.

9. As a result of above discussion, the judgment dated 31.8.2010 and the decree passed in pursuance thereof both are recalled. The suit is restored to its original position. Both Applications are disposed of.

(R.A.) Applications disposed of

PLJ 2014 Karachi 216 (DB)

Present: Muhammad AliMazhar & Shahnawaz Tariq, JJ.

Mrs. ZEENAT AHMED--Petitioner

versus

FEDERATION OFPAKISTAN & 2 others--Respondents

C.P. No. D-877 of 2014 and CMA No. 4063/2014, decided on 12.6.2014.

Constitution ofPakistan, 1973--

----Arts. 199 & 212--Constitutional jurisdiction--Non-functional of tribunal--Direction cannot be given to approach non-functional F.S.T.--Validity--It is well settled that High Court before exercising extra-ordinary jurisdiction must be satisfied about non-availability or inefficiency of alternate remedy provided under law and once it is shown to satisfaction of High Court that alternate remedy was expedient, effective, then obviously Courts would be reluctant to exercise writ jurisdiction--To disentitle a person from extraordinary relief, alternate remedy available must be a remedy in law i.e. remedium juris, one which was not less convenient, beneficial and effective--To effectively bar jurisdiction of High Court under Art. 199 of Constitution remedy available under law must be able to accomplish same purpose which is sought to achieve through a petition under Art. 199 of Constitution. [P. 222] A

Constitution ofPakistan, 1973--

----Art. 212(2)--Non-functional of F.S.T.--Assumed role and jurisdiction of F.S.T.--Redress of aggrieved person--Validity--Constitutional jurisdiction is guided by principle that if no adequate or alternate remedy is provided under law constitutional jurisdiction can be set into motion for redress of an aggrieved person. [P. 223] B

Wedlock Policy--

----Scope--Problems and hardships faced by husbands and wives in government service due to posting at different stations of duty, office order on wedlock policy was issued to facilitate posting of husbands and wives at same station and posting of unmarried female civil servants at place of residence of their parents/families. [P. 224] C

Constitution ofPakistan, 1973--

----Arts. 35 & 199--Constitutional Petition--Transfer order--Violation of wedlock policy--Facilitate posting of husbands and wives at same station and posting of unmarried female civil servants at place of residence of their families--Transfer was neither in public interest nor for any valid reason--F.S.T. was not functional petitioner could not approach for seeking relief--Three months notice should be given to Govt. Servant before transferring from one station to another--Validity--Mere holding of an additional charge of other station in a particular period of time does not mean that petitioner cannot be given advantage and benefit of wedlock policy in future nor that can be presumed that she has waived her right to claim that benefit--Once competent authority issued wedlock policy, it their responsibility to implement and adhere to such policy guidelines so that benefit may be given to all such persons who are covered under wedlock policy--Its implementation cannot be left at whims and volition of competent authority to bestow said benefit or advantage on pick and choose basis, while such type of guidelines or policy should be implemented across board without any discrimination--Civil servant cannot claim any particular post as vested right but in instant case petitioner was not claiming any vested right against any particular post but she only wants implementation of wedlock policy in her case which was introduced keeping in view socio economic problems and hardships faced by husbands and wives in Government Service due to posting at different station--State shall protect marriage, family, mother and child and according to wedlock policy explicated or itinerant around such principle of policy which was intended to ensure benefit of a family and it also advances social good--Unless there were insurmountable hurdles, requests of husband and wife to be posted at one station are required to be considered with an element of compassion and kindness.

[Pp. 227, 228] D, E, F & G

Mr. Khalid Jawed, Advocate for Petitioner.

Mr. M. M.Aqil Awan, Advocate for Respondent No. 2.

Mr.Muhammad Arshad Khan Tanoli, Advocate for Respondent No. 3.

Mr. Asif Hussain Mangi, Standing Counsel.

Date of hearing: 6.5.2014.

Judgment

Muhammad Ali Mazhar, J.--The petitioner has challenged her transfer order dated 20.2.2014 from Karachi to Rawalpindi on the ground that it is in violation of wedlock policy of the Government (O.M.No. 10/30/97-R-2 dated 13.5.1998 and 17.12.1999) issued to facilitate posting of husbands and wives at the same station and the posting of unmarried female civil servants at the place of residence of their parents/families.

1. Learned counsel for the petitioner argued that the petitioner is performing her duty as Director Military Land and Cantonments (DML&C) Karachi Region, Karachi in (BS-20). She joined the Government Service in the year 1988 after passing competitive examination through Federal Public Service Commission. It was further contended that husband of the petitioner is also Government servant and Senior Medical Officer, Health Department, Government of Sindh and her entire family is living in Karachi. The petitioner has four minor school going children. On 20.2.2014 all of a sudden the petitioner came to know that she has been transferred and posted as Director (F&P) at Rawalpindi and the Respondent No. 3 was directed to take over the charge of the post of the petitioner.

2. Learned counsel further argued that posting order was issued totally in disregard of relevant provisions of law and the wedlock policy of the Government. The transfer order issued with mala fide intention only to victimize the petitioner and to disturb her peace of mind and the entire family. The transfer of the petitioner from Karachi to Rawalpindi is neither in public interest nor for any valid reason. Under Section 24-A of the General Clauses Act, the respondents were bound to communicate to the petitioner the reasons for deviation from the wedlock policy of Government of Pakistan. He further argued that at present the Federal Service Tribunal is not functional, hence the petitioner could not approach the FST for seeking appropriate relief hence she has rightly approached to this Court under the writ jurisdiction.

3. He further argued that under the normal course, three months' notice should be given to the Government servant before transferring from one station to another so that he could be able to plan his affairs. Learned counsel referred to the statement which he filed on 6.5.2014 in which he has mentioned the names of five officers who were given benefit of wedlock policy but in the case of petitioner this has been violated with ulterior motives. He further argued that even in the case of deputation vide Notification No. S.R.O.375(I)/2012 dated 16.4.2012 in Rule 20-A, after sub-rule (3) in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 a proviso has been added through which the benefit of wedlock policy was extended even to the deputationist. In support of his arguments he relied upon the following case law:--

(1) PLD 2014 S.C. 232 (Sarfraz Saleem v. Federation of Pakistan & others). Articles 212(2) & 199. Services Tribunals Act (LXX of 1973) Section 3. Constitutional Petition before High Court under Article 199 of the Constitution. For establishment of Service Tribunal appointment of its Chairman by the President, with prescribed qualification was a sine qua non and unless such appointment is made, there is no Tribunal in existence, so as to attract the bar of jurisdiction contained in Article 212(2) of the Constitution. Bar on jurisdiction of High Court under Article 212(2) of the Constitution would not come into play till the Federal Service Tribunal was established in terms of Section 3(3)(a) of Service Tribunals Act, 1973.

(2) 2011 PLC (C.S) 592 (Sajida Abdullah (ESE Teacher) v. District Coordination Officer and 2 others). Article 199. Impugned order having malafidely and illegally been passed in contravention of basic law and the Policy declared by the Government, constitutional petition filed against said order was maintainable before the High Court. If one spouse in one Government Department was posted at one city and the other spouse was posted at a different city, was definitely going to cause mental distress to both of them, with the consequences which were not only injurious to them, but to the public and Government exchequer as well.

(3) 2003 PLC (C.S) 1322 (Muhammad Zia-ul-Haq v. Secretary to Government of the Punjab and 4 others). Wedlock Policy had been introduced and acted upon with a philosophy. If husband in Government Department was posted at one city and his wife posted in another Government Department was working in a different city, it was definitely going to cause mental distress to both of them with the consequences which were not only injurious to them, but to the public and Government exchequer.

(4) PLD 2013 S.C. 195 (Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others). Tenure, appointment, promotion and posting/transfer are of utmost importance in the civil service. If these are made on merit in accordance with definite rules, instructions etc., the same will rightly be considered and treated as part of the terms and conditions of service of a civil servant. If, however, rules and instructions are deviated from and as a result merit is discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident the civil service will not remain independent or efficient.

(5) PLD 2011 S.C. 277 (Suo Motu Case No. 24 of 2010 and Human Rights cases Nos.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P & 58118-K of 2010). Section 14. Estacode, Vol. I (2007 Edn.) Instructions. Employment after retirement. Record in the present case, showed that prima facie, while re-employing the retired civil servants/persons in the police department the provisions of law i.e. Section 14 of the Civil Servants Act, 1973 as well as Instructions contained in Estacode, Vol. I, Edn, 2007 under the heading "Re-Employment" and the judgments of the Superior Courts on the subject were not considered/adhered to. Effect. Held, for establishing rule of law and Constitutionalism, it was necessary that the relevant provisions should be followed strictly in letter and spirit.

1. Mr. M.M. Aqil Awan, learned counsel for the Respondent No. 2 argued that the question of transfer and posting is one of the terms and conditions of the service which is in fact amenable to the jurisdiction of the Service Tribunal and the constitutional jurisdiction of this Court is barred under Article 212 of the-Constitution. He further argued that a civil servant cannot claim for appointment or posting to any particular post as a matter of right. He further argued that under Section 22 of the Civil Servant Act, 1973 the right of appeal and representation is provided against any such order but without exhausting the same the petitioner could not have approached Federal Service Tribunal or this Court. Learned Counsel referred to the rejoinder of the petitioner and argued that the petitioner filed the departmental appeal on 21.2.2014 and without its decision or waiting for 90 days period she has filed constitution petition, which is not maintainable. He further argued that though the F.S.T. is not functional at present, but in order to invoke the constitutional jurisdiction of this Court she was supposed to wait 90 days which is provided under the law for deciding the appeal or representation by the competent authority. Learned counsel contended that the Office Memorandum is a non-statutory instruction which cannot be enforced through constitutional jurisdiction. To maintain constitutional petition it is a mandatory requirement that petitioner should show the existence of a legal right which has been violated. The petitioner has no vested or legal right to claim a particular posting at a particular station. Out of total length of service she served at Karachi for 22 years. She also served as Additional CEO, Peshawar, CEO Kamra and DML&C Quetta holding the additional charge. He also referred to career planning of officers ML&C Department along with brief history of posting which is attached to the counter affidavit. He also referred to the judgment passed by one of us (Muhammad Ali Mazhar, J), in C.P.No. D-3943/2013 and C.P.No. D-5463/2013 in which the petitions of Sindh Civil Servants were dismissed keeping in view the bar contained under Article 212 of the Constitution. In support of his argument, the learned counsel relied upon the following case law:--

(1) 2009 PLC (C.S) 735 (Dr.Younis Asad Shaikh v. Province of Sindh, Secretary Health Department). Under Section 10 of the Sindh Civil Servants Act, 1973 posting and transfer being the terms and conditions of service, same could not be challenged before High Court in its constitutional jurisdiction.

(2) 1997 SCMR 167 (Miss Rukhsana Ijaz v. Secretary, Education Punjab). Dispute between both civil servants relating to their transfer/posting, which was a matter relatable to terms and conditions of their service. Jurisdiction of High Court was excluded in such matters in terms of Article 212(2) of the Constitution.

(3) 1998 SCMR 2129 (Asadullah Rashid v. Haji Muhammad Muneer & others). Constitution petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction.

(4) 2007 SCMR 54 (Peer Muhammad v. Govt. of Balochistan). Question of posting/transfer relates to terms and condition of a Government servant. Service Tribunal, therefore, has the exclusive jurisdiction.

(5) 2012 PLC (C.S) 665 (Mrs.Abida Jabeen v. Secretary Education (Schools) Govt. of Punjab). It was held that the appellant had no vested right to be posted against a particular place. Transfer policy was just a guideline which had no binding force. Competent Authority, was to see the feasibility that husband and wife could be posted at one station or not Impugned order passed by Single Judge of High Court, which was in accordance with law, was maintained.

1. Mr. Arshad Khan Tanoli, learned counsel appearing for Respondent No. 3 adopted the arguments advanced by Mr. M.M. Aqil Awan, however, he added that the Respondent No. 3 received the posting order from Director General (ML&C) and he was posted at Karachi on the place of the petitioner. He further argued that the petitioner has suppressed the material facts and failed to disclose that the Respondent No. 3 came to join at Karachi, but due to status quo order granted by this Court he could not join his duties. Learned Standing counsel also adopted the arguments of Mr. M.M. Aqil Awan, Advocate for the Respondent No. 2.

2. After the hearing the pros and cons, there is no doubt that the petitioner preferred departmental appeal on 21.2.2014, which is pending before the competent authority. It is also a fact that the Federal Service Tribunal is not functional due to non-appointment of its Chairman despite repeated directions of the hon'ble Supreme Court. There is no F.S.T. virtually where a civil servants may approach for the redressal of their grievances. Most of the judgments cited by the learned counsel for the respondents are based on Article 212 of the Constitution which bars the constitutional jurisdiction of this Court. In order to set into motion the aforesaid bar, the existence of Tribunal is necessary. Since the Tribunal is not functional, the petitioner cannot be non-suited on this ground as she cannot be given directions to approach the non-functional F.S.T. It is well settled that this Court before exercising extra-ordinary jurisdiction must be satisfied about the non-availability or inefficiency of alternate remedy provided under law and once it is shown to the satisfaction of this Court that alternate remedy is expedient, effective, then obviously Courts would be reluctant to exercise writ jurisdiction. To disentitle a person from extraordinary relief, the alternate remedy available must be a remedy in law i.e. remedium juris, one which is not less convenient, beneficial and effective. To effectively bar the jurisdiction of the High Court under Article 199 of the Constitution the remedy available under the law must be able to accomplish the same purpose which is sought to achieve through a petition under Article 199.

3. Recently, the Hon'ble Supreme Court in the case of Sarfraz Saleem, reported in PLD 2014 S.C. 232 clearly held that insofar as the jurisdiction of the High Court under Article 199 of the Constitution is concerned it is open ended, but subject to certain limitations prescribed therein, one of which is with reference to availability of other adequate remedy to the aggrieved party. As against it the bar of jurisdiction is dependent upon the establishment of Administrative Court/Tribunal having exclusive jurisdiction in the matter. The interpretation of the word "establishment" of an Administrative Court or Tribunal cannot be narrowed down to mere completion of paper by way of some appropriate legislation, unless it is established in a manner that it is functional and exercising its jurisdiction in accordance with law which in the instant case, is admittedly lacking. Lack of exercise of jurisdiction by the High Court in the present case seems to be contrary to the well accepted principle "ubi jus ibi remedium" (where there is a right there is a remedy) and the spirit of Articles 2 and 10-A of the Constitution, meant to safeguard the rights of every individual/person to be dealt with in accordance with law. Finally, the Hon'ble Supreme Court held that the establishment of the Tribunal in its terms, appointment of the Chairman by the President as prescribed qualification is sine qua non and unless such an appointment is made there is no Tribunal in existence, so as to meet the situation described by Article 212(2) of the Constitution and operate as bar of jurisdiction before any other forum. Learned counsel for the respondents also argued that the Tribunal is not functional but even for maintaining the C.P. the petitioner should have waited for 90 days for the decision of her departmental appeal/representation and without deciding the appeal or representation she could not have approached this Court. Let us clarify that due to non-activation of F.S.T. this cannot be said that while deciding the petition under Article 199 of the Constitution we have assumed the role and jurisdiction of the F.S.T. The constitutional jurisdiction is guided by the principle that if no adequate or alternate remedy is provided under the law constitutional jurisdiction can be set into motion for the redress of an aggrieved person. It is misconceived to say that despite dysfunctional Tribunal, the petitioner should have waited for 90 days and thereafter seek appropriate remedy through this C.P. Most of the judgment cited by learned counsel for the respondents are based on the premise that the civil servant cannot invoke the constitutional petition of this Court in view of the bar contained under Article 212 of the Constitution. There is no cavil to the proposition laid down or the guidelines expounded in the dictums but in the present situation when the Tribunal is dysfunctional, all such precedents are distinguishable unless the Tribunal is made functional. It is noted that for last considerable period the Government has not appointed Chairman of the F.S.T. while the directions were given to this effect much earlier by the Hon'ble Supreme Court. If the Tribunal is dysfunctional no responsibility or burden can be shifted upon the civil servants and for this disability they cannot be ousted or non-suited.

4. Now we would take up the next question which relates to the posting of the petitioner in view of the wedlock policy. The Office Memorandum or instructions contained in Estacode unequivocally make it clear that in view of the socio economic problems and hardships faced by husbands and wives in Government service due to posting at different stations of the duty, the office order on the wedlock policy was issued to facilitate posting of husbands and wives at the same station and the posting of unmarried female civil servants at the place of residence of their parents/families. Let us reproduce some relevant excerpts from Estacode as under:

SL. No. 2: Policy Guidelines for postings/transfers of officers:

It has now been decided by the President that postings/transfers of officers of Grade-17 and above in all Occupational Groups/Services/Ex-cadre posts, etc., will, henceforth, be made according to the Rules of Business, 1973 by the respective Ministries/Departments who are responsible for their administrative control.

1. The following guidelines may, however, be observed by the Ministries/Departments regarding policy concerning transfers:--

(1) Transfer between Pakistan and foreign countries should normally be made only after 3 years. If an officer is required to be transferred earlier than 3 years, the orders of Establishment Division are required to be obtained.

(2) Officers should not be transferred as a result of their taking leave for short periods for rest and recreation for which only acting arrangements should be made.

(3) Ordinarily 3 months' notice should be given to Government servants who are transferred from one station to another to enable them to plan their affairs.

(Authority. Establishment Secretary's D. O. Letter No. 1/24/78, C.P. dated 30.9.1978)

SL.No. 3: Normal Tenure of posting:

It has been observed that Government instructions with regard to normal tenure for an officer on the same job/post issued from time to time are not being followed with the result that in some Ministries/Divisions/Departments, officers have continued to work on the same desk for unduly long periods. The position has been reviewed and the competent authority has laid down the following criteria for posting/transfer of the officers working in Ministries/Divisions and the attached Departments/ Subordinate Offices, Autonomous and Semi-Autonomous Organizations, under their administrative control:

Posting/Transfers within Pakistan

(i) The normal tenure of an officer on the same post should be three years. Posting of an officer on the same post beyond the normal tenure will require concurrence of the competent authority, in each case.

(ii) Shifting of the officer may be phased in a manner that no dislocation in the official work takes place due to large scale transfers.

(iii) Ordinarily, three months' notice should be given to the officer who is to be transferred. Exception may, however, be made in case the officer is required to be shifted immediately in the public interest with the approval of the competent authority.

(iv) Orders for premature transfers in the Ministries/ Divisions/Departments of the Federal Government should be referred to the Establishment Division; and in the Autonomous/Semi-Autonomous Organization to the administrative Ministry concerned.

(v) These instructions will not strictly apply to technical and professional officers/experts recruited for particular posts. However, posting/transfer of such officers may also be rotated in their parent departments/ cadres as far as possible in accordance with the rules of the post.

(Authority: Establishment Division O.M.NO.10/10/94-R.2. dated 22nd March, 1994)

SL.No. 4: Posting of serving husband/wife at the same station:

The Government has taken note of the socio-economic problems and hardship faced by husbands and wives in Government service due to posting at different stations of duty, and it has been decided to prescribe the following guidelines to facilitate posting of husband and wife at the same station:--

(i) Where a request is made for posting at a different station in the same department/service/cadre in which an employee is already serving, the request may be accepted subject to availability of a post in the same BPS.

(ii) If a request involves temporary deputation to another department, it may be proceeded in consultation with the department concerned, and may be accepted on the prescribed terms of deputation subject to availability of a post in the same BPS.

(iii) When a request is made for permanent transfer to absorption in another department/agency, the request may be proceeded in consultation with the department concerned, subject to the condition that in the event of permanent transfer, seniority shall be determined in accordance with the Civil Servants (Seniority) Rules, 1993 (Chapter 2, Sl.No. 147).

(iv) If there is a tie between two or more Government servants for posting at the station in the same department/unit of an organization, the Government servant with greater length of service may be preferred.

(v) Request for posting by a spouse facing serious medical problems may be accorded highest priority.

(vi) Spouses already posted at one station, including those posted on deputation beyond the prescribed maximum period, may not normally be disturbed without compelling reasons of public interest. Requests for extension of deputation period beyond the permissible limit may be considered with compassion if interests of public service would permit.

1. The above guidelines are subject to the following conditions:--

(i) Posting of husband and wife at the same station should not be made by dislocation of any Government servant already serving at a particular station unless his transfer' is necessitated by compelling reasons of public interest or within the framework of general policy of postings and transfers.

(ii) The prescribed selection authority should be consulted in each case.

(Authority:--Establishment Division O.M. No. 10/30/97-R.II, dated 13th May, 1998).

1. According to the policy guidelines for posting and transfer of the officers it is clear that transfer between Pakistan and foreign countries should normally be made only after three years. It is further provided that ordinarily three months' notice should be given to the Government servants who are transferred from one station to another to enable them to plan their affairs. It is not the case of the respondents that they have denied Office Memorandum or the instructions made under the Estacode, however a precedent of the learned Division Bench of the Lahore High Court was cited in which it was held that the wedlock policy is merely a policy matter, which is a guideline and has no biding force. With profound respect, we do not agree to the ratio expounded by the learned bench of Lahore High Court. The Hon'ble Supreme Court in the case of human rights reported in PLD 2011 S.C. 277 took the notice that while re-employing the retired civil servants in police department, Section 14 of the Civil Servants Act, 1973 as well as Instructions contained in Estacode, Vol. I, Edn, 2007 under the heading "Re-Employment" were not considered, which shows that the apex Court has given due weightage to the instructions contained in the Estacode.

2. If we look to the transfer order dated 20.2.2014 it is clear that no reason including any exigency or public interest is mentioned in the transfer order due to which the authority was not bound to consider the wedlock policy nor it is mentioned that the work assigned to the petitioner as her new assignment at Rawalpindi cannot be performed by any other officer in Rawalpindi for which the transfer of petitioner was required in violation or disregard of wedlock policy. Even in the counter affidavit filed by the Respondent No. 2 the main focus was on the maintainability of the petition but it has not been stated that wedlock policy is not applicable to the case of the petitioner. It is further stated that the total length of service of the petitioner is 25 years approximately within which she served 22 years in Karachi and she has also served as Additional C.E.O. Peshawar, CEO Kamra and DML&C Quetta holding additional charge. Mere holding of an additional charge of other station in a particular period of time does not mean that the petitioner cannot be given the advantage and benefit of wedlock policy in future nor this can be presumed that she has waived her right to claim this benefit.

3. In the judgment cited by learned counsel for the petitioner reported in 2011 PLC (C.S) 592 and 2003 PLC (C.S) 1322 the similar question was dilated upon. It was held that if one spouse is in one Government Department was posted at one city and the other spouse was posted at a different city, was definitely going to cause mental distress to both of them, with the consequences which were not only injurious to them, but to the public and Government exchequer as well.

4. We feel no hesitation in our mind to hold that once the competent authority issued wedlock policy, it their responsibility to implement and adhere to such policy guidelines so that the benefit may be given to all such persons who are covered under the wedlock policy. Its implementation cannot be left at the whims and volition of the competent authority to bestow this benefit or advantage on pick and choose basis, while such type of guidelines or policy should be implemented across the board without any discrimination. The petitioner quoted that many persons in the same department were given the benefit of wedlock policy, which has not been denied. The petitioner has attached the office identity card of her husband Dr.Ahmed Hussain who is performing duties in Karachi as Senior Medical Officer, Health Department, Government of Sindh, which fact has also not been denied by the respondents.

5. At this juncture we would also like to hold that no doubt in the normal circumstances, a civil servant cannot claim any particular post as vested right but in this case the petitioner is not claiming any vested right against any particular post but she only wants the implementation of wedlock policy in her case which was introduced keeping in view the socio-economic problems and hardships faced by husbands and wives in Government Service due to posting at different station. Even this facility was extended through Office Memorandum to such class of Government servants also, to be able to serve at the place of residence of their spouses, irrespective of whether such spouses, are employed with the Government, private sector, or even unemployed.

6. Here it may not be irrelevant to quote Article 35 of the Constitution of Pakistan in which as principle of policy it is provided that the State shall protect the marriage, the family, the mother and the child and according to us the wedlock policy explicated or itinerant around this principle of policy which is intended to ensure the benefit of a family and it also advances social good. Unless there are insurmountable hurdles, requests of the husband and the wife to be posted at one station are required to be considered with an element of compassion and kindness. All learned counsel extensively argued the matter and agreed that this petition may be disposed of at Katcha Peshi stage.

7. As a result of above discussion, this petition is admitted to regular hearing and disposed of in the following terms:--

(a) The impugned transfer order dated 20.2.2014 is set aside in view of the wedlock policy, (b) The setting aside of impugned transfer order will not restrict or prevent the competent authority to transfer the petitioner to any other post commensurate to her grade in Karachi.

(c) Pending applications are also disposed of accordingly.

(R.A.) Applications disposed of

PLJ 2014 Karachi 229 (DB)

Present: Muhammad AliMazhar and Abdul Rasool Memon, JJ.

M/s M.R. INDUSTRIES throughit's Managing Partner--Petitioner

versus

SINDH EMPLOYEES SOCIAL SECURITY INSTITUTION throughit's Commissioner & 3 others--Respondents

C.P. No. D-1346 of 2012 and CMA No. 8020 of 2012, decided on 12.5.2014.

Provincial Employees Social Security Ordinance, 1965 (X of 1965)--

----Ss. 1(3), 57 & 59--Payment of Wages Act, (IV of 1936), S. 17--Workman Compensation Act, (VIII of 1923), S. 30--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Demand of contribution for Sindh Employees Social Security Institution was challenged--Surety was required to be furnished in Social Security Court against demand--No direct provision to demand of amount--Social Security Court cannot pass order directing to deposit amount in cash or to furnish any security--Validity--Due to non-availability of similar provisions, it does not mean that Social Security Court being an appellate Court cannot issue directions either for furnishing security or bank guarantee equivalent to amount of impugned demand--Applicability of C.P.C has limited application, and S.S.C. cannot exercise all powers of Civil Court but right of appeal where it exists is a matter of substance and not as a mere procedure--Social Security Court does not possess automatic power to ask for furnishing security or bank guarantee on institution of appeal but it can grant interim relief on an application filed by appellant for staying impugned demand subject to furnishing security or bank guarantee--Mere filing of appeal does not amount to stay--If appellant was not asking for any interim relief there was no need to pass interim order for suspending demand subject to furnishing security or, bank guarantee and institution was free to effect the recovery under the provisions of Land Revenue Act, which is clearly provided under Section 23 of the Provincial Employees' Social Security Ordinance, 1965--Held: Social Security Court erred in not directing to furnish security for payment of amount determined by machinery/ forums hence, order was modified to effect that respondent shall furnish security--Petition was admitted to regular hearing. [Pp. 235, 238 & 239] A, H, I & J

Maxim--

----"Expressio unius exclusion altertus"--When a statute mentions one or more things of a particular class, it may be regarded as silent excluding other things of same class or similar classes not expressly mentioned. [P. 236] B

Interpretation of Statute--

----It is equally well established principle that in construing a statute construction which is most agreeable to justice and reason is to be preferred--Supreme Court held that power to grant interim relief is ancillary or incidental to main appellate jurisdiction expressly conferred by Statute. [P. 236] C

Provincial Employees Social Security Ordinance, 1965 (X of 1965)--

----S. 59--Demand of contribution for Sindh Employees Social Security Institution--No direct provision in which amount of demand is required to be deposited prior to filing of appeal--Question of--Whether on institution of appeal in Social Security Court and even without applying for stay order against impugned demand, Social Security Court can pass order without any application of interim relief to furnish security or bank guarantee--Filing of appeal against impugned order and filing interlocutory application for staying impugned order both are two distinct steps/proceedings though powers to grant interim relief are incidental and ancillary to appellate jurisdiction but Provincial Employees' Social Security Ordinance, 1965 does not compel appellant to ask for restraining order at time of filing of appeal, however, it is left open for appellant before Social Security Court to protect him from rigors of execution of impugned demand who might apply for interim relief which will be of course decided by appellate Court and stay of impugned demand may be subject to furnishing solvent security or bank guarantee--If an appellant before S.S.C. does not apply or is not interested in interim relief or to protect it from execution of order, it does not mean that institution without any restraining order passed by appellate Court should wait for execution till such time appeal is decided by S.S.C., which is not true interpretation and construction of law--Appellant may file appeal or may not ask for suspension of order at their own will and they cannot expect as mere filing of appeal will protect them from execution of demand of contribution--Complaint was filed before institution under Section 57 of Provincial Employees' Social Security Ordinance, 1965 in which ample opportunity was provided to petitioner but they had failed to produce record before institution and thereafter demand was raised--Social Security Court does not possess automatic power to ask for furnishing security or bank guarantee on institution of appeal but it can grant interim relief on an application filed by appellant for staying impugned demand subject to furnishing security or bank guarantee--Petition was admitted. [Pp. 236, 237 & 238] D, E, F, G & H

Mr. S.M.Iqbal Advocate, Advocate for petitioner.

Mr.Jawad A. Sarwana, Advocate for Respondent Nos. 1 & 3.

Mr.Abdul Jalil Zubedi, AAG.

Date of hearing: 30.1.2014.

Order

Muhammad Ali Mazhar, J.--This petition is brought to challenge the order dated 31.3.2012 passed by First Sindh Social Security Court at Karachi in Appeal No. 02 of 2011 preferred under Section 59 of the Provincial Employees' Social Security Ordinance, 1965.

1. The brief facts of the case are that the petitioner was notified under Section 1(3) of the Provincial Employees Social Security Ordinance, 1965 and it was regularly paying contribution to the Sindh Employees Social Security Institution. The Respondent No. 3 made a demand of contribution in the sum of Rs. 11,25,600/- for 268 employees since July, 2004 to April, 2005. The petitioner filed a complaint under Section 57 of the Provincial Employees Social Security Ordinance, 1965, to challenge the demand which was dismissed. An appeal was filed and the matter was remanded to the Respondent No. 2 back in the year 2007 however, the demand of contribution was maintained again so the petitioner filed another Appeal No. 3 of 2011 on various grounds. The petitioner did not apply for the restraining order against the impugned demand but the Respondent No. 2 on the objection raised by the counsel for the Respondent No. 1 that surety is required to be furnished in the Social Security Court against the impugned demand, on which the counsel for the appellant requested for time to furnish security and at his request 15 days' time was allowed. Later on instead of furnishing security, the appellant's counsel filed objections before the Social Security Court in which it was alleged that Social Security Court cannot issue directions to furnish security as all powers of the Civil Court cannot be exercised by the Social Security Court. After hearing the counsel for the appellant and the respondent, the learned Social Security Court dismissed the objections and directions were reaffirmed to be complied with within 15 days' time.

2. Learned counsel for the petitioner argued that there is no provision under the Provincial Employees Social Security Ordinance, 1965 in which the amount impugned in the appeal is required to be deposited as prerequisite of institution of appeal. In order to strength this argument learned counsel referred to Section 17 of the Payment of Wages Act and Section 30 of the Workman Compensation Act, in which at the time of institution of appeal under both the special enactments a certificate is required to be appended with the memo. of appeal to show that the demand of compensation amount/withheld wages liable to be paid in the impugned order has been deposited with the authority below without which the appeal is not maintainable in the above laws. He argued that no such provision is available in the Provincial Employees Social. Security Ordinance, 1965, hence, the Social Security Court cannot pass the order directing the appellant either to deposit this amount in cash or to furnish any security. The proceedings arising from the Section 57 are departmental proceedings against which appeal lies under Section 59. He further referred to Section 62 of the Provincial Employees Social Security Ordinance, 1965 which provides that the Social Security Court shall have all the powers of Civil Court for the purposes of granting and enforcing the attendance of the witnesses, compelling the discovery and production of documents and material objects administrating oath and recording evidence and such a Court shall be deemed to be Civil Court within the meaning of Section 195 of the Cr.P.C. It was averred that keeping in view the limited powers of, CPC conferred upon the Social Security Court the Social Security Court cannot exercise full-fledged powers of Civil Court and while exercising its appellate jurisdiction no direction could have been issued to the appellant to furnish security against the impugned demand. Under Section 62 of the aforesaid Ordinance the order of Social Security Court may be enforceable as if it were a decree of Civil Court so the learned counsel argued that the order passed by the institution under Section 57 has no status of decree of Civil Court. Learned counsel further argued that during pendency of the appeal, Social Security Intuition in order to effect the recovery of contribution demand cannot resort to the provision of Land Revenue Act and such powers cannot be exercised by the employees of the institution. In support of his arguments he relied upon the following case law:--

(1) 2009 PLC (C.S.) 799 (M/s.Axact Private Limited v. Province of Sindh through Secretary Labour, Government of Sindh) Sections 20, 22 and 23. Constitution of Pakistan (1973), Article 199, Constitutional Petition. Attachment of vehicle. Petitioner establishment contended that it was not entitled to pay contribution as its employees were getting more salary. Petitioner assailed notice of recovery and raised the plea that authorities had no power to attach its vehicle for recovery of contribution. Notice of recovery was silent to show that on what evidence or strength, authorities calculated arrears mentioned therein. Notice also did not speak about holding of any inquiry as envisaged under Section 22 of Provincial Social Security Ordinance, 1965. Authorities did not adopt procedure provided in Provincial Social Security Ordinance, 1965, for assessing contribution and penalizing petitioner. Act of authorities was declared as illegal.

(2) 1993 PLC 335 (Mumtaz Ahmed Silk Mills Ltd., v. Director, Sindh Employees Social Security Institution and another). Section 57 Sindh Employees' Social Security (Procedure for Deciding Complaints and Review of Decisions) Regulations, 1983, Regulation 5. Regulation 5 is ultra vires of the powers of Authority which framed the regulations. In the absence of any provisions in Section 57 of the West Pakistan Employees' Social Security Ordinance, 1965, the framers of the Regulations had no power to provide depositing of 25% of the amount in dispute as a condition precedent to the entertainment of a complaint. The Regulation is ultra vires the power of the Authority.

1. On the contrary, learned counsel for the Respondent Nos. 1 and 3 argued that each establishment notified under the Provincial Employees' Social Security Ordinance, 1965 is required to pay contribution and the amount of contribution due along with increase if any may be recovered as the arrears of land revenue. The amount of contribution was determined by the institution under Section 57 of the Provincial Employees' Social Security Ordinance, 1965. Learned counsel further argued that the learned Social Security Court has ample power to grant interim relief subject to furnishing security or the bank guarantee which is necessary to protect the interest of the institution as no prejudice will cause to the petitioner and it would advance the cause of justice to furnish security to the extent of the amount of contribution determined by the institution and if appeal is allowed by the Social Security Court, the security will be discharged. He robustly opposed the plea of petitioner's counsel that Social Security Court is not vested with any power to grant interim relief. In support of his argument he relied upon the following case law:--

(1) PLD 1975 S.C. 32 (SESSI v. Adamjee Cotton Mills Ltd.). Appeal under Section 59 of Ordinance X of 1965. Appellate Court, pending appeal, has power to stay execution of order appealed against. It was argued that by that section, it was not the intention to bring the Social Security Court on a par with an ordinary Civil Court, so as to make it possible to invoke Order XXXIX, Rules 1 and 2, CPC. It is however, important to point out that power to grant interim relief, in this case is "ancillary or incidental" to the main appellate jurisdiction expressly conferred by the statute. The power to grant interim relief is exercisable by the Social Security Court, not because of the inherent character or the attribute of the Court itself, but only to enable it to exercise its appellate jurisdiction expressly conferred upon it more effectively and in accordance with what indisputably are requirements of justice and reason.

(2) 1998 PLC 115 (SESSI v. M/s.Corn Pak Ltd.). Sections 20 and 59, CPC (V of 1908) Social Security Court staying demand of contribution against establishment without calling upon it to furnish securities for payment thereof in case its liability to pay the same was established. Social Security Court erred in not directing establishment to furnish security for payment of amounts determined by forums against such establishment. Impugned order was modified to the effect that establishment would furnish security to the satisfaction of Social Security Court.

1. Learned counsel for the parties extensively argued the matter and agreed that this petition may be disposed of at Katcha Peshi stage. At the very outset it is clarified that the impugned order was not passed on any application moved by the petitioner in the Social Security Court for staying the operation of the impugned demand/order. What is visible from the contents of the impugned order is that after notice to the institution, their advocate raised the objection that appeal was not maintainable without furnishing security. It is also transpired from the impugned order that the petitioner's counsel in appeal requested for time to furnish security, but instead of furnishing security within time granted to him he filed legal objections challenging the jurisdiction of the Social Security Court to issue directions for furnishing security. The institution took the plea in the Social Security Court that since the appeal has been admitted therefore, they cannot initiate recovery under Land Revenue Act. It was further contended that the appellant is bound to deposit bank guarantee for the subject amount. On the contrary, petitioner's counsel took the plea before the appellate Court that the appellant is not seeking stay order against the impugned order, therefore, the question of furnishing security does not arise. The Social Security Court observed in the impugned order that when the appellant has knocked the door of Social Security Court, they are bound to furnish security against the impugned demand. What further deciphers from the impugned order that the learned Social Security Court out rightly passed the order for furnishing security under the impression that on filing appeal the appellant is automatically bound to furnish security, no matter they asked for the suspension of the impugned order or not and this order was passed on the request of the counsel for the institution that on filing appeal they cannot resort to provision of Land Revenue Act for recovery of contribution.

2. So far as the arguments of learned counsel for the petitioner that there is no direct provision available under the Provincial Employees' Social Security Ordinance, 1965 in which the amount of impugned demand is required to be deposited prior to filing of appeal as made mandatory under the provisions of Payment of Wages Act or Workman Compensation Act as prerequisite for filing appeal and production of certificate of payment hence, in the absence of any such provision under Provincial Employees' Social Security Ordinance, 1965, the Social Security Court does not possess any such power to give directions to the petitioner to furnish bank guarantee to the extent of non-availability of similar provision as provided under the Payment of Wages Act and Workman Compensation Act. In this regard, we would like to hold that due to non-availability of similar provisions, it does not mean that the Social Security Court being an appellate Court cannot issue directions either for furnishing security or bank guarantee equivalent to the amount of impugned demand. It is also correct that the applicability of C.P.C has limited application, and the Social Security Court cannot exercise all powers of Civil Court but the right of appeal where it exists is a matter of substance and not as a mere procedure. In the case of SESSI v. Adamjee Cotton Mills Ltd. (supra) the Hon'ble Supreme Court has already dilated upon the powers of Social Security Court exercisable under Section 59 of the Provincial Employees' Social Security Ordinance, 1965. In that case also demand of contribution was raised and certificate regarding the amount due was forwarded to Assistant Collector with the request to recover the amount of arrears of land revenue. Aggrieved by the above proceedings the employer filed an appeal before the Social Security Court under Section 59 of the Provincial Employees' Social Security Ordinance, 1965. Along with memo. of appeal an application under Order XXXIX Rules 1 and 2, CPC was also moved for the stay of recovery proceedings. Social Security Court stayed the recovery of amount subject to furnishing bank guarantee. On behalf of institution it was argued that Section 62 of the Provincial Employees' Social Security Ordinance, 1965 confers jurisdiction of an ordinary Civil Court upon the Social Security Court for the limited purposes. This argument was based on the maxim "expressio unius exclusion altertus" which enshrines the well-established principle of interpretation that when a statute mentions one or more things of a particular class, it may be regarded as silent excluding other things of the same class or similar classes not expressly mentioned. But the rule is not absolute in its application. It is equally well established principle that in construing a statute the construction which is most agreeable to justice and reason is to be preferred. The Hon'ble Supreme Court held that the power to grant interim relief is ancillary or incidental to the main appellate jurisdiction expressly conferred by the statute. This should not be confused with what is sometimes, claimed as the inherent jurisdiction of a Court. What is inherent is an inseparable incident of a thing or an institution in which it inheres. The power to grant interim relief is exercisable by the Social Security Court not because of the inherent character or the attribute of the Court itself, but only to enable it to exercise its appellate jurisdiction expressly conferred upon it more effectively and in accordance with what indisputably are requirement of justice and reason.

3. The question is whether on institution of appeal in the Social Security Court and even without applying for stay order against the impugned demand, the Social Security Court can pass the order without any application of interim relief to furnish security or bank guarantee? In this regard, we are clear in our mind that filing of appeal against the impugned order and filing interlocutory application for staying the impugned order both are two distinct steps/proceedings though the powers to grant interim relief are incidental and ancillary to the appellate jurisdiction but Provincial Employees' Social Security Ordinance, 1965 does not compel the appellant to ask for the restraining order at the time of filing of appeal, however, it is left open for the appellant before the Social Security Court to protect him from the rigors of execution of impugned demand who may apply for the interim relief which will be of course decided by the appellate Court and stay of the impugned demand may be subject to furnishing solvent security or the bank guarantee. Simultaneously, we are also like to hold that if an appellant before the Social Security Court does not apply or is not interested in the interim relief or to protect it from the execution of order, it does not mean that the institution without any restraining order passed by the appellate Court should wait for the execution till such time the appeal is decided by the Social Security Court, which is not the true interpretation and construction of law. Under Section 20 of the Provincial `Employees' Social Security Ordinance, 1965, the provisions are made for the payment of contribution while under Section 23 mechanism of recovery is provided which is reproduced as under:--

"23. Increase of unpaid contribution and recovery of contributions, etc., as arrears of land revenue.--(1) If any employer fails to pay, on the due date, the contributions payable by him under sub-section (1) of Section 20, the amount so payable by him shall be increased by such percentage as may be prescribed:

Provided that in no case shall such increase exceed fifty per centum of the amount due.

Provided further that no part of such increase shall be payable by, or the liability to pay the same be passed on by the employer to his employees.

(2) without prejudice to any other remedy, the amount of the contribution due, together with the increase provided for under sub-section (1), may be recovered as arrears of land revenue."

1. The sub-section (2) of Section 23 makes it clear that recovery of contribution can be effected through the procedure and the machinery provided under the Land Revenue Act so despite filing of appeal in the Social Security Court, the letter of law is clear that the recovery can be effected through Land Revenue Act unless the demand is stayed by the appellate Court subject to furnishing security or bank guarantee for which law has already been made clear by the dictum of Hon'ble Supreme Court as discussed (supra). The appellant may file appeal or may not ask for suspension of the order at their own will and they cannot expect as mere filing of appeal will protect them from the execution of demand of contribution. In this case the complaint was filed before the institution under Section 57 of the Provincial Employees' Social Security Ordinance, 1965 in which ample opportunity was provided to the petitioner but they failed to produce the record before the institution and thereafter the demand was raised.

2. Learned counsel for the petitioner placed reliance on the case of M/s.Axact Private Limited in which learned Divisional Bench of this Court set aside the notice of recovery and the attachment of vehicle on the ground that notice of recovery was silent to show that on what evidence or strength, authorities calculated arrears. Notice also did not specify holding of any inquiry as envisaged under Section 22 of Provincial Social Security Ordinance, 1965. Facts and circumstances of this case are distinguishable and not attracted to the facts and circumstances of the present case in which the petitioner itself filed complaint under Section 57 of the Provincial Employees' Social Security Ordinance, 1965. In the case of M/s.Axact Private Limited the management took the plea before this Court that it was not liable to pay contribution as it employees were getting more salary but in the present case learned counsel for the petitioner himself filed a statement along with certain documents including the complaint filed under Section 57 of the Provincial Employees' Social Security Ordinance, 1965 to show that the petitioner was making payment of social security contribution regularly but in the complaint there were some factual disputes regarding the payment. He next cited the case of Mumtaz Ahmed Silk Mills Ltd., which is also distinguishable. The learned Divisional Bench of this Court held that Regulation 5 of the Social Security (Procedure for Deciding Complaints and Review of Decisions) Regulations, 1983 is ultra vires of the powers of Authority which framed the regulations, in which the regulation was made that complaint in term of Section 57 cannot be entertained without asking to deposit of 25% of the alleged claim. No such controversy is involved in the present case.

3. So far as the impugned order is concerned, the Social Security Court does not possess automatic power to ask for furnishing security or bank guarantee on institution of appeal but it can grant interim relief on an application filed by appellant for staying the impugned demand subject to furnishing security or bank guarantee. Mere filing of appeal does not amount to stay. Simultaneously, if the appellant is not asking for any interim relief there was no need to pass interim order for suspending the demand subject to furnishing security or, bank guarantee and the institution was free to effect the recovery under the provisions of Land Revenue Act, which is clearly provided under Section 23 of the Provincial Employees' Social Security Ordinance, 1965. In the case of M/s.Corn Pak Ltd, reported in 1988 PLC 115 the SESSI filed the appeal under Section 64 of the Ordinance, in which plea was taken that the Social Security Court stayed the demand of contribution without asking the security. The learned Single Judge of this Court held that the Social Security Court erred in not directing the respondent to furnish security for the payment of amount determined by the machinery/forums hence, the order was modified to the effect that the respondent shall furnish security.

4. As a result of above discussion this petition is admitted to regular hearing and disposed of with listed application in the following terms:--

(a) The Social Security Court does not possess the powers to pass orders for furnishing security/ bank guarantee on its own motion as a pre-requisite or precondition of filing of appeal under Section 59 of the Provincial Employees' Social Security Ordinance, 1965. Consequently, the impugned order is set-aside.

(b) If the petitioner wants suspension of the impugned demand/order, they may apply to the Social Security Court and if any such application is filed the Social Security Court may stay the impugned demand subject to furnishing solvent security and or bank guarantee till such time the appeal is decided.

(c) The institution during pendency of appeal may initiate and continue the proceedings for the recovery of due contribution in accordance with the provisions of Land Revenue Act unless the impugned demand is stayed by the Social Security Court.

(R.A.) Petition allowed

PLJ 2014 Karachi 239

Present: Aftab Ahmed Gorar, J.

GHULAM ARIF KHAN--Petitioner

versus

GOVERNMENT OF SINDH through Home Secretary and 2 others--Respondents

C.P. No. S-371 of 2013, decided on 2.5.2013.

Constitution ofPakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 550--Constitutional petition--Superdari of vehicle--Bonafide purchaser of vehicle--Car was purchased to tune specific amount remaining balance amount will be payable at time of transfer of car in name of petitioner--Neither car was transferred nor remaining balance amount was paid to owner of vehicle--Without completing requisite formalities car was handed over on superdari--Validity--Mashirnama of seizure of car would reflect that car was recovered from petitioner but Judicial Magistrate did not bothered to issue notice to petitioner to clarify cook-box--S.H.O. furnished report before Court and Magistrate had handed over car on superdari basis on a rapid and hurry manner; while administration of justice would realize either party must be heard; and no one should be knocked out on technicalities rather to decide controversy on merits while providing equivalent opportunity of being heard--Car in dispute was neither forcibly snatched nor found involved in commission of any offence and the police was not justified in seizing it under Section 550, Cr.P.C from house of Petitioner--S.H.O. was hereby directed to recover car and hand over peaceful custody of car--No justification for taking over car in possession under Section 550, Cr.P.C.; therefore, order of Magistrate was hereby set-aside. [Pp. 242, 243 & 244] A, B & D

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

----S. 561-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Administrative order--Validity--Administrative order can be challenged before High Court u/S. 561-A, Cr.P.C., if order amounts to an abuse of process of Court. [P. 243] C

1983 SCMR 187, ref.

Mr.Fareed Ahmed A. Dayo, Advocate for Petitioner.

Mr.Shahzado Saleem Nahiyon, APG for Respondents.

Date of hearing: 2.5.2013.

Order

Petitioner Ghulam Arif Khan, approached constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, sought for the following reliefs:--

A. Declare that the action of the Respondent No. 3, whereby impounding the vehicle No. ANX-739 is illegal, unlawful and without lawful authority.

B. Declare the action of Respondent No. 3 is showing the arrest of Petitioner in terms of Section 54, Cr.P.C is illegal, unlawful, with malafide and void, ab-initio.

C. Direct the Respondent No. 2 to register the FIR against the Respondent No. 3 under the relevant provision of law.

D. Any other relief which this Hon'ble Court may deem fit and proper.

E. Cost of the Petition.

1. Briefly, sum and substance of the instant petition would reflect as follows:--

"Petitioner purchased vehicle bearing Registration No. ANX-739 GLI, Make Toyota Corolla, Model 2007, Black colour from one Najam Alam Siddiqui, who was his subordinate as Chief Engineer while Petitioner was posted as Managing Director (KW&SB); registered in the name of his brother Anwar Alam Siddiqui against the sale consideration of Rs.10,00,000/-. Out of which, petitioner paid Rs.8,00,000/- to the Najam Alam therefore, peaceful possession was handed over to Petitioner with running paper of the documents and remaining amount of Rs.2,00,000/- will be payable at the time of transfer of the vehicle in the name of Petitioner. On 11.10.2012, Anwar Alam lodged FIR Bearing No. 232 of 2012 at Police Station Clifton against the Petitioner for an offence punishable under Sections 420/406, PPC. In the instant FIR, Petitioner was granted ad interim pre-arrest bail by the incharge District & Session Judge, Karachi, South on 2.11.2012; thereafter bail was confirmed by the Session Judge, Karachi, south on 10.11.2012. During the course of investigation, the investigation officer recorded statement of the Petitioner, Petitioner also joined the investigation; the investigation officer conducted spot enquiry as well. After completing the recourse of investigation, Investigating Officer submitted report under "A" class observing that since the matter pertains to civil nature and there is a lack of evidence. However the learned VI-Judicial Magistrate Karachi, South, issued notice to the complainant, he chooses to remain absent and learned VI-Judicial Magistrate, Karachi-South accepted the report of police under "C" class instead of "A" class by observing that the element of monsroa seems missing and the matter on the face of record pertains to civil nature vide his order dated 27.02.2013. On 28.03.2013 at about 7:00 hours when Petitioner was available in his house, two police constables came at the house of the Petitioner who took away the vehicle forcefully from house of the Petitioner with directions to the Petitioner that he should appear at Police Station. Petitioner tried to convince the Police Constable by saying that this matter was earlier investigated and finally it was disposed of under "C" class by the concerned VI-Judicial Magistrate, Karachi-South. Petitioner in pursuance to the directives given by the Police Constables, appeared before SHO PS Clifton, he produced all the necessary documents including the order passed by the learned VI-Judicial Magistrate Karachi-South and explained that he is a bonafide purchaser of vehicle bearing Registration No. ANX-739 since last four years. Despite all best efforts taken by the Petitioner, Respondent No. 3 SHO PS Clifton misbehaved the Petitioner and he also used some filthy words to the Petitioner; consequently, the Respondent No. 3 told the Petitioner that he will impound the vehicle under Section 550, Cr.P.C. and he was also arrested in terms of Section 54, Cr.P.C. by keeping such roznamcha entry at Police Station"

1. I have heard learned counsel for the petitioner and learned APG for the State.

2. Learned counsel for the Petitioner has contended that FIR lodged by one Anwar Alam against the petitioner, in which petitioner has obtained ad interim pre arrest bail; same was confirmed by the Session Judge, Karachi-South; said FIR was disposed of by the learned VI-Judicial Magistrate, Karachi-South under "C" Class. Learned counsel further contended that ex-S.H.O, P.S, Clifton (Respondent No. 3) with malafide intention impounded the vehicle in question from the house of Petitioner and such report was too furnished before the VI-Judicial Magistrate, Karachi-South under Section 550, Cr.P.C and incharge VI-Judicial Magistrate, Karachi-South handed over the car to Anwar Alam on 30.3.2013. Learned counsel for the Petitioner has relied upon 2005 S.L.J. 734 Karachi and PLD 2009 Lahore 382.

3. Learned APG, oppose the petition and stress his arguments that learned VI-Judicial Magistrate, Karachi-South has handed over the custody of car on superdari basis to Anwar Alam; the matter pertains to civil nature; petitioner is at liberty to approach the competent Civil Court for redressal of his grievances.

4. Having gathered the respective submissions raised and perused the material available on record. It is an admitted fact that, petitioner has purchased the Car from one Najam Alam Siddiqui to the tune of Rs. 10,00,000/- out of which, petitioner paid an amount of Rs.8,00,000/- to Najam Alam Siddiqui; remaining balance amount of Rs.2,00,000/= will be payable at the time of transfer of car in the name of petitioner but since than neither Anwar Alam transferred the car in the name of petitioner nor petitioner paid the remaining balance amount to the owner of vehicle/car; such FIR was lodged by Anwar Alam Siddiqui against the petitioner; report of investigating officer is very much clear whereby learned VI-Judicial Magistrate, Karachi-South dispose of FIR under "C" class and he also issued notice to the complainant but complainant did not bothered to appear even before the learned Judicial Magistrate. Learned Judicial Magistrate VI-Karachi, South, has ordered that from the FIR, the element of menserea seems missing and the matter on the face of record pertains to civil nature. Complainant has not challenged the order of learned Magistrate at any forum. S.H.O Police Station Clifton illegally and unlawfully impounded the car when he knows about the case; he also knows that FIR was disposed of under "C" class by the learned Magistrate on the report of Investigating Officer of the case as well. S.H.O has also furnished report under Section 550, Cr.P.C, S.H.O illegally arrested the petitioner and also learned incharge Judicial Magistrate-VI, Karachi South with out completing the requisite formalities handed over the car on superdari basis to Anwar Alam Siddiqui.

5. It is also transparent and crystal clear that mashirnama of seizure of car would reflect that car was recovered from bungalow of the Petitioner but learned incharge Judicial Magistrate-VI, Karachi-South did not bothered to issue notice to the petitioner to clarify the cook-box. S.H.O. has furnished report before the learned Magistrate on 29.03.2013 and learned incharge Magistrate had handed over the car on superdari basis on 30.03.2013 in a rapid and hurry manner; while administration of justice would realize either party must be heard; and no one should be knocked out on technicalities rather to decide controversy on merits while providing equivalent opportunity of being heard. The said car was not stolen property and same was purchased by the petitioner in lieu of consideration from one Najam Alam Siddiqui (brother of complainant of Crime No. 232 of 2012). In a case law reported in 1968 S.C.M.R page 1143, lays down as follows:--

"Order of disposal or seizure should not be passed without proper enquiry"

1. I have also gone through the record, which reveals that custody of the seized car, car in dispute had neither been forcibly snatched nor found involved in the commission of any offence and the police was not justified in seizing it under Section 550, Cr.P.C from the house of the Petitioner. Apart from above, there is nothing on record with regard to the statement of Javed who has informed to 15 Madadgar from his cell phone, even SIP Shafiq Tanveer did not obtained any warrant from the concerned Magistrate to enter into the house of Petitioner. Petitioner belongs to a respectable family. The conduct of SIP is highly deplorable. Nobody can be allowed to enter into house, there is no reasonable ground that petitioner has committed any offence and in this regard nothing even has brought on record. In my considered view that act of the SIP Shafiq Tanveer and Saleemullah Qureshi ex-S.H.O. Police Station Clifton is/was not in accordance with the Law and highly deprecated.

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 vs. The State (1983 SCMR 187). (supra).

In the case of Javed Iqbal vs. Crescent Commercial Bank Ltd. (Supra) reported in PLD 2009 Lahore 382, it has been held as follows:--

"----Ss. 523 & 550--Constitution of Pakistan, (1973), Art. 199--Constitutional petition--Seizure of property suspected to be stolen--Procedure by Police upon seizure of such property--Car in question in the case was neither alleged nor suspected to have been stolen--No circumstances whatsoever was available which could create suspicion of commission of offence--Bona fide civil dispute was about the vehicle between the purchaser/petitioner and the leasing Bank/respondent arising out of terms and conditions of lease-purchase agreement between them--No occasion existed for S.H.O. concerned to seize the vehicle till resolution of their said dispute--Seizure of vehicle being in utter disregard of the mandate of S.550, Cr.P.C. was amenable to judicial scrutiny in exercise of constitutional jurisdiction of the High Court--S.H.O, has adopted self-styled procedure over and above the law--Under S.523, Cr.P.C, S.H.O. was duty bound to report seizure of the car to the area Magistrate without wasting a single moment so that the Magistrate could make an appropriate order regarding the disposal of the car or the delivery of the seized car to the person entitled in its possession--Magistrate was legally bound to quash the proceedings conducted by the S.H.O being offensive to Ss. 550 & 523, Cr.P.C. and to return the car to his purchaser from whose possession it was seized by the S.H.O.--Impugned orders being arbitrary, perverse, illegal and offensive to the established principles governing the subject of seizure of movable property by the Police and its disposal, could not be allowed to hold the filed--Impugned orders were set aside by the High Court with direction to the local Police to hand over the vehicle to the purchaser/the petitioner"

1. S.H.O, Police Station Clifton, Karachi-South, is hereby directed to recover the Car from Anwar Alam and hand over the peaceful custody of car bearing Registration No. ANX-739 GLI, Maker Toyota Corolla, Model 2007, Black colour, Chasis No. NLE-120-6067398 and Engine No. X 590429 to the Petitioner forthwith on furnishing P.R.Bond in the sum of Rs. 10,00,000/- by the Petitioner, as there is/was no justification for taking over the car in possession under Section 550, Cr.P.C; therefore, the order of learned incharge Judicial Magistrate-VI, Karachi-South dated 30.3.2013 is hereby set-aside. Petitioner, if so advised, may approach SSP South-Zone Karachi, detailing his grievances in writing who would look into the matter and thereafter, if a cognizable offence is made out against SIP Shafiq Tanveer and Inspector/ex-S.H.O PS Clifton Saleemullah Khalid Qureshi than he should proceed strictly in accordance with the Law. The petitioner is further directed not to sell the said car neither change its colour; type, Engine and chasis number till final disposal. The SHO PS Clifton South-Karachi is directed to make compliance immediately and such compliance report should be transmitted to this Court through MIT of this Court.

2. Before parting with the case, it is clarified that parties may avail such a legal remedies as are available to them in accordance with the law. Nothing said herein, will prejudice the case of either party before the Civil Court or any other forum. Order accordingly.

The constitution petition is disposed of.

(R.A.) Petition disposed of

PLJ 2014 Karachi 245 (DB)

Present: Naimatullah Phulpoto & Salahuddin Panhwar, JJ.

MURK and others--Petitioners

versus

SHAHEED MOHTARMA BENAZIR BHUTTO MEDICAL UNIVERSITY, LARKANA through its Vice Chancellor and others--Respondent

C.P. Nos. D-958, 1104, 1124, 1194, 1268, 1327 and M.As. Nos. 5385, 4526 of 2013, decided on 29.5.2014.

Constitution ofPakistan, 1973--

----Art. 199--Pakistan Medical & Dental Ordinance, 1962--Educational institution--Admissions in evening classes for MBBS--Violated instructions of PM&DC--Rules do not permit evening classes of MBBS--No provision to recognize evening classes--Validity--Such attempt was made by LUMHS in year 2010 to run evening classes, but PM&DC did not allow same, similar request of S.M.B.B.M.U. to run evening classes, was earlier declined by PM&DC; inspite of that, Vice Chancellor, announced evening classes admission--Such act is contrary to law--No provision exists regarding recognition of evening classes in MBBS Course. [P. 250] A

Mr.Asif Ali Abdul Razak Soomro, Advocate for Petitioners (in C.P. No. D-958/2013).

Mr.Safdar Ali Ghouri, Advocate for Petitioner (in C.P. No. D-1104, 1268 and 1327 of 2013).

Mr.Inayatullah G. Morio, Advocate for Petitioner (in C.P. No. D-1124/2013).

Mr. Akeel Ahmed Bhutto, Advocate for Petitioner (in C P. No. D-1124 & 1194 of 2013).

Mr.Faiz Muhammad Larik, Advocate for Respondents No. 1 and 2.

Messrs M.Sohail H. Rana and Riaz Ahmed Soomro, Advocates for PM&DC.

Mr.Habibullah G. Ghouri, Advocate for Principal, Chandka Medical College, Larkana.

Mr. Jai Jai Veshnu Mange Ram, Deputy Attorney General.

Mr. Naimatullah Bhurgri, State Counsel.

Date of hearing: 28.5.2014.

Order

Naimatullah Phulpoto, J.--Through this order, we intend to dispose of captioned Constitutional Petitions, as all petitions relate to the same subject-matter involving common question of law.

1. C. P. No. D-958/2013 is the leading petition, wherein the petitioners have prayed for the following relief(s):--

(a) That this Honourable Court may graciously be pleased to declare that above act of respondents by suspending/stopping/canceling classes of petitioners in the Evening Shift Medical Course in Chandka Medical College Larkana Sessions 2013-14, without any reason or fault on the part of students as illegal, without lawful authority, justification, in violation of principles of natural justice and norms of equity.

(b) That this Honourable Court may further be pleased to direct the respondents to continue and complete the Evening Shift Medical Course in Chandka Medical College Larkana (Shaheed Mohtarma Benazir Bhutto Medical University) Larkana Session 2013-14, without break and- allow petitioners and all other students to continue their medical studies in the respective categories, without break or disturbance, and if there is any impediment in restoration of Evening Shift then adjust the petitioners in the morning shift or in the coming Session.

(c) That this Honourable Court be further pleased to issue Writ of Prohibition, restraining respondents from depriving the petitioners and other students from continuing their medical education in the Evening Shift Medical Course in Chandka Medical College Larkana (Shaheed Mohtarma Benazir Bhutto Medical University) Larkana Session 2013-14.

1. Precisely, relevant facts are that Evening Shift of Medical Course in Chandka Medical College, Larkana for Sessions 2013-14 was announced by the Shaheed Mohtarma Benazir Bhutto Medical University, Larkana through advertisement published in daily "KAWISH" Hyderabad, dated 27th May, 2013, and applications were invited from the candidates for admissions in the evening classes for the following courses:--

(i) MBBS Evening Course of CMC Larkana.

(ii) Pharm-D (Doctor of Pharmacy), (iii) D-Physiotherapy.

As per admission offer, 100 seats were shown to be allocated for MBBS, out of which 75 seats on merit and 25 seats under UEDP; similarly 100 seats were shown allocated for Pharm-D, out of which 75 seats on merit and 25 seats under UEDP and 50 scats for D-Physiotherapy, out of which 30 seats on merit and 20 seats under UEDP. The petitioners in pursuance of such advertisement applied for admissions and after scrutiny of their academic documents etc they were called upon to appear in the written test to be held through National Testing Service (N.T.S). The petitioners appeared in the said test and as per merit list issued by the University Authorities, they were declared successful. Thereafter, the Respondent No. 3/Director Admissions of the University issued Provisional Admission letters of first year MBBS Class Evening Shift Course of Chandka Medical College, Larkana to the petitioners and all other successful candidates. The petitioners after fulfillment of all the requisite formalities deposited the admission and tuition fees, thus classes of Evening Shift Medical Courses in Chandka Medical College, Larkana commenced from 16.7.2013, but it is stated that all of sudden the respondents, without notice to the petitioners, verbally announced suspension of evening shift of classes on 25.7.2013 and the entry of the petitioners was banned. Thereafter, aforesaid Constitutional Petitions were filed before this Court.

1. Notices were issued to the respondents as well as A.A.G and D.A.G.

2. Respondent No. 4 (Principal of CMC Larkano) filed his statement, whereby it is pleaded that he has no concern with the evening shift of Medical Course, whereas Respondent No. 6 (Secretary Health) has mentioned that Vice-Chancellor Shaheed Mohtarma Benazir Bhutto Medical University, approached PM&DC for admission of evening classes of MBBS in the university but the PM&DC declined such request. Despite this fact university ignored the instructions, and started process of admission for evening classes.

3. Pursuant to the orders of this Court PM&DC filed comments and has raised plea that there is no provision of evening classes in the PM&DC Rules. Reference has been made to Section 11 of PM&DC Ordinance, 1962; further it is stated that Vice-Chancellor of the Medical University has violated the instructions of PM&DC, hence they are liable for action.

4. Mr. Asif Ali Abdul Razak Soomro, learned advocate for the petitioners argued that admission policy was announced by the Vice-Chancellor, Shaheed Mohtarma Benazir Bhutto Medical University, Larkana. Students applied for admission in evening classes and after completion of all the formalities provisionally they were admitted in first Professional MBBS Session 2013-14 and they also attended the classes for about one week; thereafter, Sindh Government, on the instructions of the PM&DC restrained the petitioners to attend the classes. He has further submitted that education is the fundamental right of the petitioners. Respondents have deprived them from the valuable right without any legal justification; so far issue of recognition of evening classes by PM&DC is concerned, he argued that it was not raised at initial stage and students were not aware of it. In support of his contentions he has relied upon the cases reported as Chairman, Selection Committee v. Wasif Zamir Ahmad (1997 SCMR 15), Imdad Hussnain v. Province of Sindh (PLD 2007 Karachi 116) and Pakistan Medical and Dental Council v. Ziauddin Medical University (PLD 2007 SC 323).

5. Counsel for the other petitioners adopted the arguments advanced by Mr. Asif Ali Abdul Razak Soomro, advocate.

6. Mr. Inayatullah G. Morio, advocate for petitioner in C.P. No. D-1124/2013, while adopting above arguments, added that though petitioner, qualified the examination, but he was not admitted, thereafter during pendency of this petition, option of admission, in BDS, on self finance scheme was given to the petitioner by university, same has been availed hence petitioner is studying in BDS, however petitioner presses this petition for MBBS course.

7. Mr. Ghulam Ali A. Samtio, advocate, appearing on behalf of the Shaheed Mohtarma Benazir Bhutto Medical University, Larkana, has argued that it was an individual act of Mr. Akbar Haider Soomro, the then Vice-Chancellor. Medical University and its governing body have no concern with the opening of the evening classes without approval. He has argued that Vice-Chancellor allowed provisional admissions to the petitioners without seeking approval from the PM&DC, which is the requirement of the rules.

8. Mr. M. Sohail H. Rana, advocate, appearing on behalf of the PM&DC, referred to the rules of PM&DC and argued that there is no provision of evening classes in the rules of the PM&DC. He has submitted that evening classes admissions were given in Chandka Medical College without obtaining recognition of the PM&DC. As soon as PM&DC came to know about the evening classes, letter was written to the Vice-Chancellor to stop the evening classes forthwith and such intimation was also given to the parents of the students. Mr. Rana has argued that no evening classes, in any university are allowed in the entire country. He has submitted that such attempt was made for opening the evening classes by LUMHS in 2010, but such request was declined by the PM&DC.

9. Mr. Habibullah G. Ghouri, advocate, appearing on behalf of the Principal, Chandka Medical College, Larkana, has agitated that there is no faculty and other necessary equipments to run the evening classes in college. He also argued that rules do not permit the Principal to run the evening classes. He has argued that 23 petitioners appeared in current session and after qualifying lest, not admission in morning session. Lastly, he argued that petitions have become infructuous.

10. We have carefully heard the learned Counsel for the parties and perused the entire record.

11. During the hearing of the petitions, by order dated 26.3.2014 PM&DC was required by this Court to examine the case of the petitioners/students on humanitarian grounds to save their future.

12. In response to the aforesaid order statement dated 08.4.2014 was filed by Chairman, Pakistan Medical & Dental Council, relevant para is reproduced as under:--

"It is not legally possible and within the competence of the above stated Ordinance, amendments, amended Act, Rules of the PM&DC and the Judgments in subject matter to accommodate the petitioners/students as per proposal of the learned Advocate for the petitioners for their admission in morning MBBS Course in the various Medical Colleges of Sindh. There is a proper system for the admission of Medical students (Admission Policy) in morning courses only. No where, in the country any Medical Institutions started on their own the evening courses of MBBS. (Subject matter of the petition). There is no possibility in above matter to accommodate the petitioners in the morning courses of the Medical Colleges of Sindh. The detail parawise comments already filed by the PM&DC through their Advocate. Who represent the matter before this Hon'ble Court".

1. Perusal of above reflects that PM&DC has categorically stated that proposal was thoroughly examined, but the rules do not permit the evening classes of MBBS. In the comments filed by PM&DC, it is also mentioned that there is no provision at all to recognize the evening classes. Learned Counsel for PM&DC informed that evening classes are not recognised/allowed in any medical college of the country. It has also been brought on the record that such attempt was made by LUMHS in the year 2010 to run the evening classes, but PM&DC did not allow the same, similar request of Shaheed Mohtarma Benazir Bhutto Medical University to run evening classes, was earlier declined by PM&DC; inspite of that, Vice-Chancellor, Shaheed Mohtarma Benazir Bhutto Medical University, announced evening classes admission. Such act is contrary to the law. While meticulous examination of rules it is manifest that no provision exists regarding recognition of evening classes in MBBS course. It is provided in Section 11 of the Pakistan Medical & Dental Ordinance, 1962 that no medical institution can train or grant a medical or dental qualification or train and grant both unless the said qualification, degree or diploma has been accorded recognition in terms of the aforesaid section. Regarding the dictum of Hon'ble apex Court in the case of Pakistan Medical and Dental Council v. Ziauddin Medical University (PLD 2007 SC 323), as relied by Counsel for the respective parties, it is pertinent to mention that the students of Faisalabad Dental College, were allowed to be accommodated in other colleges; candidly those students were not students of evening classes and were in advanced stage of their academic year; but here the petitioners applied for morning course in same academic year, but they did not qualify the test of morning classes, thereafter, in their 2nd attempt they availed the opportunity of evening classes, announced by University, pursuance to that they were admitted by the university, having this knowledge that such admission is for evening classes only, petitioners attended their classes in the first academic year of their course for a week only, therefore, their claim for admission in morning classes, will seriously effect the academic career of regular students. Further, it is matter of fact there is limited allocation of scats to every institution by the PM&DC, and no college can exceed such limit, thus claim of the petitioners has no legal strength. Therefore, we are of the considered view that the petitions are devoid of merits, hence same are-dismissed alongwith listed applications.

2. Before parting with the order, it is worth to add here that apparently the act of the then Vice-Chancellor, Shaheed Mohtarma Benazir Bhutto Medical University, Larkana and other concerned officers falls within the term of "misfeasance". Hence, petitioners are at liberty to sue them in accordance with law, before competent Court having jurisdiction. PM&DC shall also conduct thorough probe and action shall be taken against the delinquent officials as per rules.

(R.A.) Petitions dismissed

PLJ 2014 Karachi 251 (DB)

Present: Muhammad AliMazhar & Shahnawaz Tariq, JJ.

ALI ANWAR RUK--Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through its Chairman & another--Respondents

C.P. No. D-505 of 2014, decided on 24.7.2014.

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

----S. 497--Constitution of Pakistan, 1973, Art. 199--Bail, grant of--Ground of statutory delay--Failed to conclude evidence on ground of delay--Delay was not caused or occasioned on part of petitioner or his counsel--Validity--It is also an admitted fact that delay was not caused due to any inaction or impediment and or any deliberate attempt on part of petitioner or his counsel--It is also an admitted fact that out of 27 witnesses, only five witnesses were examined so far and naturally for recording evidence of remaining prosecution witnesses, considerable time will be consumed--Object of trial is to make an accused to face trial and not to punish and under trial prisoner--Basic idea is to enable accused to answer criminal prosecution against him rather than to rot him behind bar--Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay. [P. 253] A & B

Mr.Shaukat Hayat, Advocate for Petitioner.

Mr.Noor Muhammad Dayo, A.D.P.G NAB for Respondents.

Date of hearing: 24.7.2014.

Order

Muhammad Ali Mazhar, J.--The petitioner has applied for bail on the ground of statutory delay. Earlier his bail application was dismissed on merits by this Court in C.P No. 351/2013, thereafter, he moved another Petition No. 2895/2013 which was also dismissed by the same division bench of this Court vide order dated 16.12.2013 with the following observations:

"As evidence is being recorded, we are of the view that the process of recording evidence be completed within five weeks. Thereafter, if prosecution delays the matter then the petitioner shall be entitled to move a fresh bail application before this Court. With these observations, this petition is disposed of."

1. The learned counsel for the petitioner argued that in terms of directions given by this Court on 16.12.2013, the evidence was to be completed within five weeks. Since the prosecution has miserably failed to conclude the evidence hence on the ground of delay, the petitioner is entitled to be enlarged on bail. He further submits that there are 27 witnesses in the reference and out of which the evidence of only five witnesses has been recorded so far. In order to prove that the delay has not been caused or occasioned on the part of petitioner or his counsel, the learned counsel pointed out the diary sheets. The petition was disposed of on 16.12.2013, the diary sheet dated 14.12.2013 shows that Mr. Shaukat Hayat advocate for the petitioner was present in the trial Court, other advocates were also present along with co-accused persons but on a joint request made by all the advocates due to Bar Council Election, the matter was adjourned to 21.12.2013. The diary sheet dated 21.12.2013 again shows that Mr. Shaukat Hayat advocate for the petitioner was present along with the petitioner but the learned Presiding Officer of the Accountability Court was on leave and matter was adjourned to 08.1.2014. The diary sheet dated 08.01.2014 shows that learned Presiding Officer of the Court was again on leave and the matter was adjourned to 25.01.2014 but on the said date also the Presiding Officer was on leave. The learned counsel for the petitioner relied upon unreported order of the honourable Supreme Court passed on 11.08.2011 in Civil Petition No. 620-K of 2011, (Syed Maqsood Ahmed v. State). In Paragraph No. 7, the Honourable Supreme Court held as under:

"7. Reverting to the proceedings of the case at hand before the Accountability Court, we find there is no denial of the fact that even before framing of charge, for no fault on his part, the petitioner remained in judicial custody for a period of over 11 months and even thereafter, as discussed above, for delay in the proceedings of the case for a period of over nine months, he is not responsible to the extent that he can be denied the benefit of above reproduced provision of law, which entitles him for grant of bail if he had remained in continuous custody for a period exceeding one year, as in the instant case."

1. The Honourable Supreme Court converted the civil petition into appeal and the petitioner was admitted to bail subject to his furnishing solvent surety in the sum of Rs.5 million (Five million) with P.R bond. He further referred to PLD 2003 Karachi 393 (Jamil A. Durrani vs. The State) in which it was held that accused was in jail for the last more than 19 months and trial was not within sight within near future, bail cannot be withheld as a punishment and nobody could be kept in jail for an indefinite period. In that case also the accused was granted bail. He further referred to 2002 S.C.M.R 282 (Muhammad Saeed Mehdi vs. State & others) in which, the Honourable Supreme Court dilated upon the preamble of the NAB Ordinance and Section 16 of the said Ordinance and held that object of the Ordinance as contained in its preamble is to provide expeditious trial of scheduled offences within shortest possible time, which position is re-assured in Section 16 of the said Ordinance postulating day to day trial of the case and its conclusion within 30 days. It was further held that object of criminal trial is to make the accused face the trial and not punish an under trial prisoner for the offence alleged against him. Basic idea is to enable the accused to answer the criminal prosecution against him rather than to rot him behind the bars. Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay. He further referred to 2002 M.L.D 1180 (Danish Ahmed vs. The State through Chairman NAB) in which also, the learned division bench of this Court granted bail on the ground that the directions given by this Court to conclude the trial within two months were not complied with.

2. Mr. Noor Muhammad Dayo A.D.P.G NAB has also submitted the diary sheet in chronological order which shows other dates of hearing also from 30.01.2014 to 12.07.2014 in which the case was fixed at least for 18 times and learned A.D.P.G NAB submitted that according to the available diary sheets, entire delay solely could not be attributed to the petitioner however, he was not in a position to controvert the diary sheets of the trial Court which are self-explanatory and the reason of delay cannot be attributed to the petitioner.

3. The petitioner is behind the bar since 15.01.2013. It is also matter of fact that the directions given by this Court earlier have not been complied with. It is also an admitted fact that the delay was not caused due to any inaction or impediment and or any deliberate attempt on the part of the petitioner or his counsel. It is also an admitted fact that out of 27 witnesses, only five witnesses have been examined so far and naturally for recording evidence of remaining prosecution witnesses, considerable time will be consumed. Keeping in view the present speed, velocity and pace of trial, there is no likelihood that the trial will be concluded in near future. Object of trial is to make an accused to face the trial and not to punish and under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay.

4. As result of above discussion, the petitioner is granted bail subject to his furnishing solvent surety in the sum of Rs.1.5 (Rupees one & half million) and P.R bond in the like amount to the satisfaction of learned trial Court. Petition is disposed of accordingly.

(R.A.) Bail granted

PLJ 2014 Karachi 254 (DB)

Present: Muhammad AliMazhar & Shahnawaz Tariq, JJ.

ABDUL JABBAR--Petitioner

versus

STATE (NAB) through Director General--Respondent

C.P. Nos. D-2363 of 2013 and D-1282 of 2014, decided on 23.7.2014.

Constitution ofPakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 497--National Accountability Bureau Ordinance, 1999, S. 9(a)--Post-arrest bail in reference, grant of--Committed offence of corruption and corrupt practices and caused loss to national exchequer by grabbing precious government land--Reference was filed after and unjustified delay--Role requires further inquiry--Validity--Bail was granted by honourable Supreme Court on premise that after submission of challan if trial does not commence or conclude within 30 days from said date, petitioner would automatically become entitled to grant of bail subject to his furnishing bail bonds. [P. 256] A

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

----S. 497--National Accountability Bureau Ordinance, (XVIII of 1999), S. 9(a)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Bail, grant of--Tentative assessment--Further inquiry--Offence corruption and corrupt practices and caused loss to national exchequer--Validity--Allegation can only be determined at conclusion of trial, where deeper appreciation of evidence will be made out whether petitioner is involved in case or not--Allegations by themselves would not constitute bar for grant of bail in peculiar circumstances of case--Case of further inquiry pre-supposes tentative assessment which may create doubt with respect to involvement of accused in crime. [Pp. 257 & 258] B & C

Mr.Munawar Hussain Yousufi, Advocate for Petitioner.

Mr.Noor Muhammad Dayo, A.D.P.G. NAB

Date of hearing: 23.7.2014.

Order

Muhammad Ali Mazhar, J.--The petitioner has applied for post arrest bail in Reference No. 62/2013 in which he has been nominated as Accused No. 3. The role of the present petitioner is mentioned in Paragraph No. 6 of the Reference which reads as under:--

"6. That it reveals from Investigation Report that Ali Akbar Parhyar Ex-Mukhtiarkar and Abdul Jabbar Soomro Ex-Tapedar Accused Nos. 2 and 3 respectively despite being within knowledge that the land involved is Government land still confirmed Entry No. 154 dated 12th January, 2005 which was made on the basis of the aforesaid fraudulent Sale Deed executed by Accused No. 5 in favour of Accused No. 4. Both the accused without comparing the new entry with the previous one and without referring the previous entry made new one in favour of Accused No. 4. The proprietor M/s. Terry World Textile Mills and thus completely neglected the requisite legal and procedural formalities."

1. In Paragraph No. 7, it is further stated that after conducting investigation, it has been established that all the accused persons in collusion with each other committed the offence of corruption and corrupt practices and caused loss of Rs.9.5 million to the national exchequer by grabbing precious Government land and by manipulation and fabrication of documents and by over writing and tempering the record and further by removing and inserting pages in the relevant record, made new entries in record of rights in respect of 237 acres of land in Deh Babar Band, Taluka Thana Bola Khan, District Jamshoro. Thus the accused persons committed the offence of corruption and corrupt practices as envisaged under Section 9(a) of NAB Ordinance 1999.

2. The learned counsel for the petitioner argued that out of six accused, five are already on interim bail except the petitioner. He further argued that the Accused No. 1 issued the sale certificate in favour of Accused No. 5 on the basis of old entry which was kept by Allah Dito Leghari, Ex-Mukhtiarkar, hence the Entry No. 77, dated 20.10.1989 was kept in the Form-VF-II.A. He further argued that after issuance of sale certificate, the sale deed was registered in favour of Accused No. 4 by the Sub-Registrar. He further argued that the petitioner was duty bound to keep the entry on the record passed by his superiors and he had no authority to refuse to keep the entry on record without the order of Mukhtiarkar. He further argued that the alleged offence was committed in the year 2004-2005 but the reference has been filed in the year 2013 after an inordinate and unjustified delay which creates doubt and in view thereof, the role of the petitioner requires further inquiry. He further argued that petitioner is behind the bar for the last eight months who was arrested on 30.11.2013. Now investigation has been completed, charge has been framed by the trial Court but out of seventeen witnesses, the examination-in-chief of only one witness has been recorded so far on 29.05.2014. There is no likelihood of completion of trial in the near future. In support of his arguments, the learned counsel for the petitioners placed his reliance on 2005 S.C.M.R 1666 (Agha Jahanzeb vs. NAB and others) in which also the post arrest bail was applied. In Paragraph No. 05, it was held as under:--

"5. When questioned that under the NAB Ordinance trial is to conclude within 30 days. Mr. M. Ibrahim Satti, Advocate Supreme Court submitted that this time period is not mandatory but directory for the time being we would refrain from expressing any opinion as to whether the timeframe is mandatory or directory, but would direct that after submission of challan in this case on 7th of May, 2003 if the trial does not commence or conclude within 30 days from the said date, petitioner would automatically become entitled to the grant of bail subject to his furnishing bail bonds in the sum of Rs. five millions with one surety in the like amount to the satisfaction of the trial Court at Lahore."

1. In the above order, the bail was granted by the Honourable Supreme Court on the premise that after submission of challan if the trial does not commence or conclude within 30 days from the said date, the petitioner would automatically become entitled to the grant of bail subject to his furnishing bail bonds in the sum of rupees five million with one surety in the like amount to the satisfaction of the trial Court. Learned counsel submits that since the reference was filed on 12.11.2013 and till today, only examination-in-chief of one witness has been recorded so he argued that the petitioner may be enlarged on bail subject to his furnishing solvent surety. He further referred to 2002 SCMR 282 (Muhammad Saeed Mehdi v. The State) in which, the Honourable Supreme Court dilated upon the preamble of the NAB Ordinance and Section 16 of the said Ordinance and held that object of the Ordinance as contained in its preamble is to provide expeditious trial of scheduled offences within shortest possible time, which position is re-assured in Section 16 of the said Ordinance postulating day to day trial of the case and its conclusion within 30 days. It was further held that object of criminal trial is to make the accused face the trial and not punish an under trial prisoner for the offence alleged against him. Basic idea is to enable the accused to answer the criminal prosecution against him rather than to rot him behind the bars. Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay.

2. On the contrary, the learned A.D.P.G NAB argued that the petitioner being Tapedar of Revenue played an important role in the commission of offence and without his participation; commission of offence was not possible. He further argued that petitioner is prima facie involved in the offence of corruption and corrupt practices. However, he himself produced the diary sheet of the learned trial Court which confirms the fact that the examination-in-chief of only one witness has been recorded on 29.5.2014. The learned A.D.P.G N.A.B has also pointed out the 161, Cr.P.C. statement of Abdul Hameed in which he stated that Entry No. 154 was made by the accused Abdul Jabbar (petitioner) who was Ex-Tapedar which was attested by the accused Javed Akhtar Ex-Mukhtiarkar of Thana Bola Khan. However, in his same statement, he stated that the Entry No. 77 was already existing on the record in the name of Mst. Sabiha who sold out the property to M/s. Terry World Textile Mills. The next witness in his statement stated that sale permission/N.O.C for sale dated 16.12.2004 was signed by the accused Asadullah Solangi Incharge/Mukhtiarkar Revenue. Ramesh Kumar in his statement stated that as per record, the conveyance deed dated 31.12.2004 was executed between Mst. Sabiha and Mehmood Rangoon Wala regarding 237 acres of Government land situated in Deh Babar Band, Taluka Thana Bola Khan, District Jamshoro which was registered in the office of Sub-Registrar Kotri. The learned A.D.P.G NAB further submits that Mst. Sabiha who is Accused No. 5 has filed an application for "Plea Bargain" which is pending. In support of his contentions, the learned A.D.P.G NAB relied upon the 2004 S.C.M.R 1889, (Mrs.Razia Qayyum vs. The State) in which, the Honourable Supreme Court held that elaborate sifting of evidence could not be made at the time of deciding bail application but only tentative assessment of the same is to be made.

3. What we understand from the record is that though the allegation against the present petitioner is that he in connivance with other official recorded Entry No. 154 dated 12th January 2005 but at the same time, an important aspect cannot be ignored that in the name of same Mst. Sabiha, an Entry No. 77 was already existing on the record. Except Accused No. 4 & 5, all the other co-accused are the Revenue Officials so at this stage it is not clear whether all the officials of the Revenue Department in connivance with each other caused loss to the national exchequer. It is also to be seen whether the present petitioner in connivance with other co-accused fraudulently recorded an Entry No. 154? Whether in presence of Entry No. 77 in the name of Mst. Sabiha, the petitioner was required to examine entire chain of the title documents of the land? The effect of the sale certificate/N.O.C for sale which was issued by the Ex-Mukhtiarkar and on the basis of the said sale certificate, Conveyance Deed was registered. All these crucial questions are need to be thrashed out during course of evidence. So according to our tentative assessment in view of the available record, the role assigned to the petitioner requires further inquiry who is behind the bar for the last more than eight months and in the trial Court only examination-in-chief of one witness has been recorded so far. It is clear that allegation can only be determined at the conclusion of the trial, where deeper appreciation of evidence will be made out whether the petitioner is involved in the case or not. The allegations by themselves would not constitute bar for the grant of bail in peculiar circumstances of the case. In the case of Sardar Amin Farooqui (2014 SBLR 766), authored by one of us (Muhammad Ali Mazhar-J), it was held that the further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching just conclusion. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime. Object of trial is to make an accused to face the trial and not to punish and under trial prisoner. The hon'ble Supreme Court held supra that basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay.

4. As result of above discussion, the petitioner is granted bail subject to his furnishing solvent surety in the sum of Rs.500,000/- (Rupees Five Lacs) and P.R bond in the like amount to the satisfaction of learned trial Court. The observations made by us are tentative in nature. Petition disposed of.

(R.A.) Bail granted

PLJ 2014 Karachi 258 (DB)

Present: Muhammad AliMazhar & Shahnawaz Tariq, JJ.

MOULA BUX @ NOUMAN and another--Petitioners

versus

GOVERNOR OF SINDH/CHANCELLOR UNIVERSITY OF SINDH JAMSHORO & others--Respondents

C.P. Nos. D-1499, 1500 of 2014, decided on 12.6.2014.

Constitution of Pakistan, 1973--

----Arts. 199 & 105(1)--Sindh University Laws (Amendment) Act, 2013--Constitutional Petition--Appointment as vice chancellor of university for third terms--Violation of law--No vested right or plea of past and close transaction can be taken in matter of appointment of V.C--Incomplete tenure for third term cannot be treated as past and closed transaction--Validity--Legislature has made amendments in laws of thirteen Universities/Colleges of Sindh to maintain uniformity in organization, management in Control of Public Sector Universities and decree awarding institutes in Province of Sindh--Amendment expresses vociferously that Vice-Chancellor shall be appointed by chancellor on recommendation of Government for a period of four years, which may be extended for one more term on such terms and conditions as Chancellor may determine--Once law has been amended in such a way that no person shall be allowed to continue third term as VC then how it is discriminatory--Law was not amended only to affect petitioner but many other persons have been discontinued from enjoying their third terms as VC--Ousting of third tenure of Vice Chancellor in entire Province of Sindh cannot be treated discriminatory to petitioner rather it is a reasonable classification in entire province, so nobody would be able to hold third term as Vice Chancellor in university/institution--It clear beyond any shadow of doubt petitioner was to assume charge of third tenure on 8.1.2014 when law was already amended so after change in law no such benefit could be claimed for third tenure which is prohibited under law--Government of Sindh shall implement Sindh University Laws (Amendment) Act, 2013 across board without any discrimination--Held: No person shall be allowed to continue or complete third tenure of his office of Vice Chancellor in any university/institution in province of Sindh against law. [Pp. 265, 266, 267 & 268] A, C, D, E, F & G

LocusPoenitentiae--

----No perpetual right can be claimed on basis of illegal order--Principle of locus poenitentiae would not attract to such orders. [P. 265] B

2001 PLC (CS) 9561, ref

M/s.Zamir Ghumro and Malik Naeem Iqbal, Advocates for Petitioner (in C.P.No. D-1499 of 2014).

Mr.Jhamat Jethanand, Advocate for Petitioner (in C.P.No. D-1500 of 2014) and for Respondent No. 5 (in C.P. No. 1499/2014).

Mr. AbdulJalil Zubedi, AAG.

Date of hearing: 21.5.2014.

Order

Muhammad Ali Mazhar, J.--This common judgment will dispose of the following constitution petitions:--

(1) C.P.No. D-1499/2014. This petition of quo warranto has been filed against the appointment of Respondent No. 5 as Vice Chancellor of University of, Sindh, Jamshoro, which is according to the petitioner illegal, unlawful and unconstitutional. MA.No. 1348/2012 has been filed by the petitioner under Order XXXIX Rules 1 & 2, C.P.C (Old C.P. No. D-310/2012-Hyderabad).

(2) C.P. No. D-1500/2014. The petitioner Prof. Dr. Nazir A. Mughal, Vice Chancellor of University of Sindh, Jamshoro who is Respondent No. 5 in C.P. No. D-1499/2014 has challenged the amendment made in the Sindh University Act, 1972 (Jamshoro) through Sindh University Laws (Amendment) Act, 2013. M.A. No. 147/2014 has been filed by the petitioner under Order XXXIX Rules 1 & 2 C.P.C. (Old C.P. No. D-25/2014-Hyderabad).

1. Mr. Zamir Ghumro, learned counsel for the petitioner in C.P. No. 1499/2014 argued that the petitioner is a social activist, who has legitimate interest in the good governance and rule of law. Two years back one Mr. Mazhar-ul-Haq Siddiqui was performing his duties as Vice-Chancellor of the Respondent No. 3 whose services were terminated suddenly and instead of filling vacancy through advertisement and the prescribed procedure, the Respondent No. 5 was appointed as Vice-Chancellor on adhoc basis. The guidelines formulated by the respondents for the appointment of Vice-Chancellor of the public sector university were completely ignored. It was further argued that the Respondent No. 5 was appointed in violation of Article 105(1) of the Constitution which provides that subject to the constitution, in the performance of his functions, the Governor shall act in accordance with advice of the Cabinet or the Chief Minister. It was further argued that the Respondent No. 5 is also holding other posts in different academic institutions including abroad hence, he does not regularly attend the University due to which administration of the institution is deteriorating day by day. Learned counsel further argued that the Respondent No. 5 should be removed immediately and in his place respondents be directed to appoint Vice-Chancellor after fulfilling all codal formalities.

2. Mr. Zamir Ghumro, learned counsel for the petitioner also pointed out page-55 of his memo. of petition, which is a resolution passed by the standing search committee in its meeting convened for the selection and appointment of Vice-Chancellor. It further shows that 54 candidates applied for the post of Vice-Chancellor and out of them nine candidates were short listed and the name of Prof. Dr. Nazir A. Mughal was mentioned at Sr. No. 9, whereas in the remarks of the selection committee, it was clearly mentioned that the committee was unanimous in the opinion that none of the candidates found of the required standing to carry out the responsibilities of the Vice-Chancellor of the University of Sindh Jamshoro. Learned counsel further pointed out Page-61, which are also minutes of meeting of the standing search committee regarding the appointment of Vice-Chancellors of the University of Sindh Jamshoro. The minutes at page-61 shows that next meeting was convened on 31.12.2009 in which the search committee interviewed two candidates who were short listed earlier including Prof. Dr. Nazir A. Mughal and Mr. Syed Masood Alam Rizvi and all off a sudden, the committee was unanimous in the opinion that out of the two candidates Prof. Dr. Nazir A. Mughal is found suitable candidate. Learned counsel argued that in the meeting held in the month of June, 2009 none of the candidates were found suitable by the committee including Dr. Nazir A. Mughal but just after six months the same committee found Prof.Dr. Nazir A. Mughal a suitable candidate which was totally a conflicting decision taken under the pressure and influence of the Chancellor. In support of his arguments he relied upon the following case law:--

3. 2007 SCMR 318 (Muhammad Sidiq through L.Rs. v. Punjab Service Tribunal Lahore and others). Principles of locus poenitentiae. No perpetual rights could be gained on basis of an illegal order. Principle of locus poenitentiae would not attract to such order.

4. 2011 PLC (C.S.) 956 (Safdar Ali Sahito v. Province of Sindh through Chief Secretary, Government of Sindh and 10 others) Article 199. Writ of quo warranto is in the nature of laying an information before a Court against a person who claimed and usurped an office, franchise or liberty. Object of writ of quo warranto is to determine legality of holder of statutory or constitutional office and decide whether he was holding such office in accordance with law or was unauthorizedly occupying a public office. High Court is under obligation to inquire whether the incumbent is holding office under the orders of a competent authority.

5. PLD 2013 Supreme Court 829 (Regarding Pensionary benefits of the Judges of Superior Courts). Following are the basic principles for interpretation of statutes: (i) Duty of interpretation arose only where the words were not clear, or the provision in question was ambiguous, that it was fairly and equally open to diverse meanings. (ii) Intention had to be gathered from the language of the enactment, otherwise known as the `plain meaning rule'. (iii) It was an elementary rule of construction that it was to be assumed that the words and phrases of technical legislation were used in their technical meaning, if they had acquired one, and otherwise in their ordinary meaning. Critical and subtle distinctions were to be avoided and the obvious and popular meaning of the language should, as a general rule, be followed, (iv) It was a cardinal rule of construction of statutes that no words were to be added or omitted or treated as surplus or redundant.

6. Mr. Jhammat Jethanand, learned counsel for the petitioner in C.P.No. D-1500/2014 and also representing Respondent No. 5 in C.P.No. D-1499/2014 argued that the petitioner was initially appointed as a Vice-Chancellor of the University of Sindh Jamshoro in the year 1995 and till 1999 he continued his term. Thereafter, he was again appointed Vice-Chancellor for the second term for four years which he continued from 2010 to 7.1.2014. However, on 8.1.2014 he was again appointed Vice-Chancellor for further period of two years. He referred to the page 35 which is a notification issued by the Governor of Sindh on 13.8.2013 whereby the petitioner was appointed for two years and this notification of appointment was made effective from 8.1.2014. While the amendment made through Sindh University Laws (Amendment) Act, 2013 were made effective from 16.9.2013. So he argued that the amendment made subsequent to the appointment of the petitioner will have no retrospective effect and the petitioner shall be allowed to continue his third term as a Vice-Chancellor. He further argued that the appointment for the third term which took place prior making the amendment has become a matter of past and closed transaction. According to learned counsel amendment made in the laws of the University of Sindh Jamshoro is on the face of it mala fide. Learned counsel referred to the reply of Respondent No. 3 in which though it is admitted that the petitioner was appointed for the second term but for his third term it was not advised by the Government of Sindh but on the contrary, the advised was given to the Chancellor to relieve the petitioner from the post of Vice-Chancellor as this post was already advertised in the newspaper and the scrutiny committee shall have domain to select new Vice-Chancellor on the basis of merit alone. Learned counsel argued that in the earlier law it was prerogative of the Chancellor to appoint the Vice-Chancellor now the Vice-Chancellor can only be appointed by the Chancellor on the recommendation of Government. It was further contended that through amendment, the powers of the Chancellor have been curtailed as now he has to appoint the Vice-Chancellor only on the recommendation of Government.

7. It was further argued that in four universities/institutions where the third term of the Vice-Chancellor was in vogue, a proviso was added in the laws of that particular university to the effect that the existing Vice-Chancellor will cease to hold the office but in the case of University of Sindh Jamshoro no such proviso was added, so the petitioner cannot be removed and he is entitled to complete his two years period as his third term but on the contrary the Government has published the advertisement in the newspaper on 31.10.2013. He also pleaded discrimination and according to him the Vice-Chancellor of Agricultural University is enjoying third term. It was further contended that for I.B.A. Sukkur no such proviso is available for removing of the Director after two terms nor any such proviso is available for Shaheed Benazir Bhutto University Lyari, Karachi. He also invited our attention to page-43 of the memo. of petition which is a chart showing the tenure of Vice-Chancellors/Directors of Public Sector Universities/Institutes in Sindh. At Sr.No. 4, the name of the petitioner is mentioned with the date of expiry of his term to the office of Vice-Chancellor as 6.1.2016. In support of his arguments he relied upon the following case law:--

8. 1992 SCMR 563 (Inamur Rehman v. Federation of Pakistan and others). Article 25. Equal protection to all is the basic principle on which rests justice under the law. Equality before law as contemplated by Article 25 does not mean equality of operation of legislation upon all citizens of the State. Where certain rights which were violated were still capable of being in force and there was something still left to be done under the impugned legislation when the fundamental rights had been restored, then the Court would be bound to give effect to such fundamental rights and save a citizen from being denied the benefit of the same.

9. PLD 1992 Lahore 462 (National Industrial Co-operative Credit Corporation Ltd. v. Province of Punjab & another). Even though, a piece of legislation does not contain the provision for the compliance of natural justice, the same have to be read into it unless the statute itself by implication or otherwise dispenses with such compliance. Any invasion upon the rights of citizens by anybody, no matter whether by a private individual or by a public official or body, must be justified with reference to some law of the country.

10. 1983 CLC 1585 (Ghulam Hyder Shah & others v. The Chief Land Commissioner Sindh & others). Competency of Legislature to enact laws retrospectively and to provide that they will also affect vested rights and transaction which are past and closed, held, cannot be doubted but in order to produce that effect, statute must be expressed in language capable of only one meaning and in case it is capable of being interpreted in two ways one preserving vested rights and obligations and other impairing them. Courts will adopt construction which preserves vested rights and lean against construction which impairs vested rights and affect transactions which are past and closed.

11. Mr. Abdul Jalil Zubedi, learned AAG argued that a bare look to the Amendment Act, 2013 make it quite visible that the amendments were made to maintain uniformity. He further argued that on the day when the amendment came into effect the petitioner immediately ceased to hold the office. He further argued that it is within the competence of provincial legislator to amend the laws. He further argued that any extension without advice by the Government of Sindh is in violation of Article 105 of the Constitution. The Amendment in Sindh University Act has been passed by the Sindh Assembly with the assent of the Governor Sindh. While passing the law there was no iota of malice against any individual. The position of VC Sindh University, Jamshoro was advertised in anticipation of the fact that it will fall vacant on 7th January, 2014, therefore there is no question of malice or mala fide. In support of his arguments, the learned AAG relied upon the following case law:--

12. PLD 1983 S.C. 457 (Fauji Foundation v. Shamimur Rehman). When a Court which is a creature of the Constitution itself examines the vires of an Act, its powers are limited to examine the legislative competence or to such other limitations as are in the Constitution, and while declaring a legislative instrument as void, "it is not because the judicial power is superior in degree or dignity to the legislative power" but because it enforces the constitution as a paramount law either where a legislative instrument is in conflict with the constitutional provision so as to give effect to it or where the legislature fails to keep within its constitutional limits. Judicial review does not extend to prying into affairs of legislature.

13. PLD 1966 Supreme Court 854 (The Province of East Pakistan and others v. Sirajul Haq Patwari and another) The Court has no power to question laws made by the duly constituted legislature under the constitution so long as the legislative authorities acted within the ambit of their powers under the Constitution. Thus the scope of judicial review is limited only to determining whether the impugned enactment is within law-making power conferred on the legislature and whether it violates any express conditions limiting that power.

14. 2012 SCMR 6 (Rana Aamer Raza Ashfaq & another v. Dr. Minhaj Ahmed Khan and another). Constitutional intent and mandate of Articles 48 and 105 of the Constitution are one the foundational values of the constitutional scheme. Governor of a Province under the Constitution enjoys an exalted position, as he is a nominee of President and a symbol of Federation in the Province, whereas Chief Minster is the Chief Executive of the Province and is elected by Provincial Assembly. Except otherwise so provided under the Constitution, President and Governor are bound by the advice tendered by Prime Minister and Chief Minister respectively and in the manner as provided in the Constitution.

15. 1993 SCMR 1905 (Molassess Trading & Export (Pvt.) Ltd. v. Federation of Pakistan & others). It is well-settled principles of interpretation of statutes are that vested right cannot be taken away save by express words or necessary intendment. It also cannot be disputed that the legislature, which is competent to make a law, has full plenary powers within its sphere of operation to legislate retrospectively or retroactively. Therefore, vested rights can be taken away by such a legislation and it cannot be struck down on that ground.

16. Heard the arguments. The Sindh Universities Laws (Amendment) Act, 2013 was promulgated on 16.9.2013. What we have comprehended that by virtue of Sindh Universities Laws (Amendment) Act, 2013, the legislature has made amendments in the laws of thirteen Universities/Colleges of Sindh to maintain uniformity in the organization, management in Control of Public Sector Universities and decree awarding institutes in the Province of Sindh. The amendment expresses vociferously that the Vice-Chancellor shall be appointed by the Chancellor on the recommendation of the Government for a period of four years, which may be extended for one more term on such terms and conditions as the Chancellor may determine.

17. The intention of the legislature is clearly manifesting from the amendment that they have decided to curtail the tenure of Vice-Chancellor to the extent of two terms only. Mr. Zamir Ghumro argued that no vested right or the plea of past and close transaction can be taken in the matter of appointment of VC. Since the VC was unlawfully appointed, he cannot claim any such right. He referred to the case of Muhammad Sidiq (supra) in which it was held that no perpetual right can be claimed on the basis of illegal order. The principle of locus poenitentiae would not attract to such orders. He then referred to the case of Safdar Ali Sehto which was authored by one of us (Muhammad Ali Mazhar, J.), reported in 2001 PLC (C.S) 956. In this case it was held that object of writ of quo warranto is to determine legality of holder of statutory or constitutional office and decide whether he is holding such office in accordance with the law. He also referred to the PLD 2013 SC. 829. Duty of interpretation arose only where the words were not clear, or the provision in question was ambiguous, that is, it was fairly and equally open to diverse meanings. Intention has to be gathered from the language of the enactment. It is an elementary rule of construction that it was to be assumed that the words and phrases of technical legislation were used in their technical meaning, if they had acquired one, and otherwise in their ordinary meaning. Critical and subtle distinctions were to be avoided and the obvious and popular meaning of the language should, as a general rule, be followed. It is cardinal rule of construction of statutes that no words are to be added or omitted or treated as surplus or redundant.

18. Mr. Jhammat argued that on issuance of notification for the third term, a vested right has been accrued in the favour of petitioner. We do not find it appropriate to hold that the philosophy or standpoint of past and closed transaction is applicable in the case of appointment of Vice-Chancellor who has served eight years but for the third term also he is claiming the Vice-Chancellorship as a vested right. The legislature has made amendment to ensure that nobody would be able to enjoy the third term as Vice-Chancellor. If a person will be allowed to continue as Vice-Chancellor for 10 to 12 years it will create frustration and exasperation amongst the persons who are also eligible to be appointed Vice-Chancellor, but in the present case the Vice-Chancellor does not want to leave the position for his successor-in-interest. Such elongated and lengthened tenure of a person to a particular post or office usually bring to a standstill and or immobilize the avenue and future prospects of other eligible and suitable persons. It is not the case of the petitioner that legislature was not competent to make the amendment but much emphasis was made that this amendment will not affect office of the petitioner because he was appointed for the third term prior to making the amendment in the law. He referred to the case of Inamur Rehman in which it was that equal protection to all is the basic principle. Where certain rights which were violated were still capable of being in force and there was something still left to be done under the impugned legislation when the fundamental rights had been restored, then the Court would be bound to give effect to such fundamental rights and save a citizen from being denied the benefit of the same. Once the law has been amended in such a way that no person shall be allowed to continue third term as VC then how it is discriminatory. It is a case of a reasonable classification which is applicable across the board. He then referred to the case of National Industrial Cooperative Credit Corporation Ltd. in which it was held that even though, a piece of legislation does not contain the provision for the compliance of natural justice, the same have to be read into it unless the statute itself by implication or otherwise dispenses with such compliance. In our view the law was not amended only to affect the petitioner but many other persons have been discontinued from enjoying their third terms as VC. The ratio of Ghulam Hyder Shah, judgment is that the vested right cannot be taken away unless it is expressed in the statute in language capable of only one meaning and in case it is capable of being interpreted in two ways one preserving vested rights and obligations and other impairing them. Courts will adopt construction which preserves vested rights. In the impugned amendment the curtailment of Vice-Chancellor third tenure is expressly mentioned without any doubt or ambiguity in a language which is capable of being interpreted only in one way. The ongoing or incomplete tenure for the third term cannot be treated as past and closed transaction. The legislature is competent to make the laws to maintain and create harmony among all institutions so we repelled the contention of Mr. Jhammat. In the case of I.A. Sharwani (1991 SCMR 1041) the Hon'ble Supreme Court held that all citizens are equal before the law and entitled to equal protection of law. However, the State is not prohibited to treat its citizens on the basis of a reasonable classification. In this parlance, we would like to hold that ousting of third tenure of Vice-Chancellor in the entire Province of Sindh cannot be treated discriminatory to the petitioner rather it is a reasonable classification in the entire province, so nobody would be able to hold the third term as Vice-Chancellor in the university/institution. At this juncture, we would also like to quote the case of Ch. Nazir Ahmad (PLD 2013 Lahore 621) and Dr. Mobashir Hassan (PLD 2010 S.C. 265), in which the Hon'ble Supreme Court held that law should be saved rather than be destroyed and the Court must lean in favour of upholding the constitutionality of legislation unless the legislative enactments is violative of a constitutional provision. There is no cavil to the well settled guidelines expounded by the Hon'ble Supreme Court in the above judgments, but in this case we do not find the amendment ex-facie or violative of any constitutional provisions.

19. Learned AAG referred to the cases of PLD 1966 SC 854, 2012 SCMR 6 & 1993 SCMR 1905. The ratio of the aforesaid judgments is that the Court has no power to question laws made by the duly constituted legislature under the constitution so long as the legislative authorities acted within the ambit of their powers under the Constitution. The scope of judicial review is limited only to determining whether the impugned enactment is within law-making power conferred on the legislature and whether it violates any express conditions limiting that power. Vested right cannot be taken away save by express words or necessary intendment. It also cannot be disputed that the legislature, which is competent to make a law, has full plenary powers within its sphere of operation to legislate retrospectively or retroactively. Therefore, vested rights can be taken away by such legislation and it cannot be struck down on that ground. Constitutional intent and mandate of Articles 48 and 105 of the Constitution are one the foundational values of the constitutional scheme. The President and Governor are bound by the advice tendered by Prime Minister and Chief Minister respectively and in the manner as provided in the Constitution.

20. One more important aspect cannot be ignored that the petitioner Dr. Nazir A. Mughal was appointed for the third term vide notification dated 13.8.2014 but his third tenure of two years was made effective from 8.1.2014. The amendment in the law was passed by the Sindh Assembly on 19th August 2013 which was assented by the Governor Sindh on 28th August and the amended Act was gazetted on 16th September 2013. It clear beyond any shadow of doubt the petitioner was to assume the charge of third tenure on 8.1.2014 when the law was already amended so after change in law no such benefit could be claimed for the third tenure which is prohibited under the law.

21. In view of the above discussion, we find no merits in Constitutional Petition No. D-1500/2013 which is dismissed, consequently, Prof. Dr. Nazir A. Mughal is ceased to hold the office of Vice-Chancellor of his third term with immediate effect. The Constitutional Petitions C.P. No. D-1499/2013 is also disposed of in the above terms along with all pending applications in the aforesaid petitions. It is further directed that the Government of Sindh shall implement the Sindh University Laws (Amendment) Act, 2013 across the board without any discrimination. No person shall be allowed to continue or complete third tenure of his office of the Vice-Chancellor in any university/institution in the Province of Sindh against the law.

(R.A.) Petition dismissed

PLJ 2014 Karachi 268 (DB)

Present: Muhammad AliMazhar & Shahnawaz Tariq, JJ.

Syed MANSOOR ALI etc.--Petitioners

versus

CHAIRMAN NAB, ISLAMABAD etc.--Respondents

C.P. Nos. D-2820, 2918 & 3102 of 2014, heard on 25.7.2014.

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

----S. 497--National Accountability Ordinance, 1999, Ss. 18(g) & 24 (b)--Constitutional of Pakistan, 1973, Art. 199--Bail, grant of--Supplementary challan--Role of accused was mentioned in supplementary challan--Failed to report suspicious transaction--Statutory delay--Provision for seeking bail on ground of statutory delay has been revived through a proviso added in Sub-section (1) of Section 497, Cr.P.C.--Delay in trial of accused has been occasioned by an act or omission of accused or any other person acting on his behalf, direct that any person shall be released on bail who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months in whose trial for such offence has not concluded. [P. 273] A

M/s. Amir Haider Shah & Malik Muhammad Ejaz, for Petitioner (in C.P. No. D-2820 of 2014).

Syed Ghulam Hasnain, for Petitioner (in C.P. No. D-2918 of 2014).

M/s. Rauf Ahmed & Khurram Nizam, for Petitioner (in C.P. No. D-3102 of 2014).

Mr.Noor Muhammad Dayo, ADPG, NAB.

Date of hearing: 25.7.2014

Order

Muhammad Ali Mazhar, J.--Through these constitution petitions all the petitioners have applied for bail on the ground of statutory delay. Brief facts of the case are that Jamal Abdul Nasir, Deputy Director, Banking Policy & Regulations Department, State Bank of Pakistan sent a complaint against M/s. Nationwala Financial Services Company to FIA. FIA registered FIR No. 04/2013 against accused persons Syed Zahid Ali, Muhammad Asad, Mansoor Khan and their family members and others under Sections 406/419/420/468/471/34 PPC read with 27/83 of BCO, 1962 and read with 3/4 of AML Act, 2010. After lodging the FIR, interim charge sheet was submitted in the Special Court (Offences in Banks), Sindh at Karachi. Meanwhile, the NAB Authorities filed an application under Section 16-A of NAB Ordinance, 1999 in the Special Court for transfer of case to the Accountability Court. On their application the case was transferred to the NAB Court. During pendency, the competent authority of the NAB authorized investigation and Mr. Najamuddin Junejo was appointed Investigating Officer and thereafter Mr. Muhammad Nasir Shehzad, who submitted his investigation report. On the basis of investigation report supplementary challan was also submitted by the NAB on 19.3.2014 under Section 18(g) read with Section 24(b) of the National Accountability Ordinance, 1999.

1. It is also a matter of record that the petitioners, Syed Mansoor Ali and Khawaja Nouman applied for bail in the trial Court, which was dismissed and thereafter they filed their bail applications in this Court, which were also dismissed by the Division Bench of this Court on the ground that no single document has been filed by the applicants to show their false implication in the case. It was further stated in the rejection order that sufficient material was collected by the FIA during enquiry thereafter FIR was registered. It was further stated that after recording the statement of 67 witnesses, final report was filed. The learned Division Bench has also observed that in the proceedings, the prosecution has to see the quality of the witnesses but not quantity, therefore, it is not necessary to examine all 67 witnesses. It was further observed that the bail application is to be decided on the basis of material collected by the prosecution. Finally it was held that from the tentative assessment of the material collected by the prosecution, the applicants are not entitled to be released on bail.

2. Petitioners, Syed Mansoor Ali and Khawaja Nouman have filed the above petitions for bail on the ground of statutory delay. The pre-arrest bail of the petitioner Syed Mansoor Ali was rejected by the Special Court (Offences in Banks) Sindh at Karachi on 11.6.2013 since then he is behind the bars. While the petitioner Khawaja Nouman is behind the bars since 29.5.2013 and the petitioner Mansoor Khan is behind the bars since 11.4.2013 and it is his first request of bail through this petition.

3. Now we would like to refer to the supplementary challan submitted by the NAB Authorities. The role of petitioner Syed Mansoor Ali and Khawaja Nouman is mentioned in Paragraph 18 of the supplementary reference. According to the NAB both were Ex-Managers of MCB, Sakhi Hassan Branch. It is alleged that they failed to report suspicious transactions to MFU, SBP. By non-compliance of provisions of AML Act, 2010 and not obtaining information about the source of funds they allowed the accused persons Syed Zahid Ali and others to continue their illegal business, hence they arrested Syed Zahid Ali and others in commission of offence. It was further stated that accused Khawaja Nouman and Syed Mansoor Ali committed offence of abetment as defined under Section 9(a)(xii) of NAB Ordinance, 1999 and they are liable to be punished under Section 10 of the above Ordinance. So far as petitioner Mansoor Khan is concerned, nothing specifically stated against him except in Paragraph 14 that accused persons Syed Zahid Ali, Muhammad Asad, Abid Hussain, Muhammad Sami, Mansoor Khan, Khawaja Nouman, Syed Mansoor, Sami Ahmed and Naheed Jamal in connivance with each other were running illegal business of variable profit in the name and style of M/s. Nationwala Financial Services Company, thus they cheated innocent and general public-at-large and they committed an offence under Section 9(a)(x) of NAB Ordinance, 1999 and criminal breach of trust.

4. According to the petitioner Mansoor Khan, he was serving as Driver in M/s. Nationwala Publications (Pvt.) Limited and he has nothing to do with the affairs of the company. It was further stated that he is sole bread earner of his family and he was leading a poor life. The Director of the company Zahid Ali gave him an offer that if he will bring the investment, Zahid Ali will give him the commission and if he will directly invest the amount, he will be given more profit as per market practice. According to his counsel Mansoor Khan himself invested a sum of Rs.300,000/- after the selling the gold ornaments of his wife.

5. Since petitioners have applied for bail on the ground of statutory delay, hence we would like to see what is the stage and progress of the case in the trial Court and whether any delay is attributable to the petitioners or not, which is the prime factor, ought to have been considered before allowing the bail to any person on the ground of statutory delay.

6. The learned ADPG, NAB submitted that there are 150 witnesses and against some of the accused persons proceedings under Sections 87 and 88 Cr.P.C. have been initiated and the Investigating Officer was directed to submit report in the Court. However, he admits that still the trial Court has not framed the charge and he is unable to give any exact date when prosecution will produce all the witnesses in Court and trial will be concluded. He further submitted that this is all a procedural delay, but fact remains that all the petitioners are behind the bars for more than one year, but still the charge has not been framed, so it cannot be definitely stated how much time will be consumed for concluding the trial.

7. One more important aspect has been argued by Mr. Amir Haider Shah, learned counsel for the petitioner Syed Mansoor Ali, to the effect of transfer of case under Section 16-A of NAO 1999. It was averred that under the letters of law, it is clear that the Chairman, NAB may apply to any Court for transfer of a case to a Court established under the NAB Ordinance and if any such case or proceedings are transferred to any Court established under the NAB Ordinance, it shall be deemed to be a reference under Section 18 of the Ordinance and it shall not be necessary for the Court to recall any witness again to record any evidence. On the contrary, the ADPG, NAB submitted that the FIA did not submit the final challan and only interim challan was submitted, therefore, the NAB could initiate investigation in this case. He further submitted that even under Section 18, NAB can initiate the proceedings on receiving of a complaint. Since more than one year has been passed but all the petitioners are behind the bars without any progress in the trial and even the charge has not been framed so far, therefore, all the learned counsel for the petitioners made a request that the petitioners may be enlarged on bail on the ground of statutory delay.

8. The Honourable Supreme Court of Pakistan in Civil Petition No. 620-K/2011 (Syed Maqsood Ahmed v. The State through NAB and another) considered the ground of statutory delay provided under Section 497 of Cr.P.C and held as under:

"7. Reverting to the proceedings of the case at hand before the Accountability Court, we find there is no denial of the fact that even before framing of charge, for no fault on his part, the petitioner remained in judicial custody for a period of over 11 months and even thereafter, as discussed above, for delay in the proceedings of the case for a period of over nine months, he is not responsible to the extent that he can be denied the benefit of above reproduced provision of law, which entitles him for grant of bail if he had remained in continuous custody for a period exceeding one year, as in the instant case."

1. We have also considered the ground of statutory delay in another petition Bearing No. D-505/2014, in which also bail was allowed in the similar circumstances. In the judgment reported in PLD 2003 Karachi 393 (Jamil A. Durrani vs. The State), it was held that accused was in jail for the last more than 19 months and trial was not within sight within near future, bail cannot be withheld as a punishment and nobody could be kept in jail for an indefinite period. In that case also the accused was granted bail. In the case reported in 2002 S.C.M.R 282 (Muhammad Saeed Mehdi vs. State & others), the honourable Supreme Court dilated upon the preamble of the NAB Ordinance and Section 16 of the said Ordinance and held that object of the Ordinance as contained in its preamble is to provide expeditious trial of scheduled offences within shortest possible time, which position is re-assured in Section 16 of the said Ordinance postulating day to day trial of the case and its conclusion within 30 days. It was further held that object of criminal trial is to make the accused face the trial and not punish an under trial prisoner for the offence alleged against him. Basic idea is to enable the accused to answer the criminal prosecution against him rather than to rot him behind the bars. Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay.

2. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay. In the judgment reported in 2012 YLR 477, (Zameer v. State, authored by one of us Muhammad Ali Mazhar, J.) the grant of bail on statutory ground as provided under Section 497 Cr.P.C. was discussed in detail and it was held that expeditious and fair trial is fundamental right of accused persons. The intention of law is that the criminal case must be disposed of without unnecessary delay it will not be difficult to comprehend that inordinate delay in imparting justice was likely to cause erosion of public confidence in the judicial system on one hand and on the other hand, it was bound to create a sense of helplessness, despair feelings of frustration and anguish apart from adding to their woes and miseries. Awesome guidance in the National Judicial Policy 2009 is provided to ensure its due implementation with dynamic approach within the prescribed time. Provision for seeking bail on the ground of statutory delay has been revived through a proviso added in sub-section (1) of Section 497 Cr.P.C. which stipulates that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months in whose trial for such offence has not concluded. The aforesaid provision is fully applicable to the case of above petitioners and the similar provision has been quoted by the Hon'ble Supreme Court in the case of Syed Maqsood Ahmed (supra) whereby the bail was granted in the NAB case.

3. As a result of above discussion, the petitioners Syed Mansoor Ali, Khawaja Nouman and Mansoor Khan are granted bail in Reference No. 61/2013 subject to furnishing solvent surety in the sum of Rs.500,000/-(Rupees Five-Hundred Thousand only) each and PR bond in the like amount to the satisfaction of the Nazir of this Court. The trial Court is also directed to expedite the trial and conclude the same within a period of six [06] months. The petitions stand disposed of.

(R.A.) Petitions disposed of

PLJ 2014 Karachi 273 (DB)

Present: Muhammad AliMazhar & Abdul Rasool Memon, JJ.

M/s. AKHTER TEXTIL INDUSTRIES LTD. through its Manager Administration--Petitioner

versus

SINDH LABOUR APPELLATE TRIBUNAL, KARACHI and 3 others--Respondents

C.P. No. D-3993 of 2011, decided on 13.2.2014.

Payment of Wages Act, 1934--

----S. 15--Civil Procedure Code, (V of 1908), O. VII, R. 10--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Labour Appellate Tribunal--Recovery of withheld wages--Question of--Whether signatory of written statement was competent to sign--Determination--Order of tribunal was based on non compliance of CPC--Relationship of employer and employee--Complexities and intricacies of CPC were not applicable in letter and spirit to avoid delay--Validity--Authority under Payment of Wages Act, simply ignored and discarded petitioner's defence on ground that written statement was not filed by authorized person while petitioner's management throughout contested proceedings and never objected or took plea that person who had signed written statement or appeared in witness box on their behalf was not authorized--Tribunal instead of considering order of labour Court on merits simply affirmed findings of authority on applicability of Order 8 Rule 10, CPC which has no germane or nexus in present case--It is well settled proposition of law which has been expounded that order passed by labour Court as an appellate Court under provisions of Payment of Wages Act can be assailed before labour appellate tribunal under its revisional jurisdiction--Order of appellate Court was set aside for reasons that Authority had rightly passed order in view of Order 8 Rule 10, CPC, which is neither correct proposition or exposition of law nor correct approach of law. [P. 278] A, B & C

Constitution of Pakistan, 1973--

----Art. 199--Payment of Wages Act, 1934, S. 15--Constitutional Petition--Jurisdiction of Tribunal--Acts outside scope of law--Adequate power for supervision and correction--Validity--High Court under its constitutional jurisdiction can examine legality of an order passed by Special Court or tribunal constituted under special enactment and if order is found illegal it can be rectified, rescinded or altered--If any order is passed in violation of law same can be conveniently be questioned and quashed under constitutional jurisdiction of Court to remedy any mischief arising out of an illegal order. [P. 279] D

Mr. MuhammadHumayun, Advocate for Petitioner.

Mr.Ashraf Hussain Rizvi, Advocate for Respondents No. 4.

Mr. AbdulJalil Zubedi, learned A.A.G.

Date of hearing: 13.2.2014.

Order

Muhammad Ali Mazhar, J.--The petitioner has challenged the order passed by the Respondent No. 1 on 30.11.2011 in Revision Application No. WCK-12 of 2011.

1. The brief facts of the case are that the Respondent No. 4 filed an application under Section 15 of the Payment of Wages Act, 1934 before the Authority appointed under the Payment of Wages Act for the recovery of some withheld wages. The Authority vide order dated 25.1.2010 allowed the claim in the sum of Rs.10,99,268/-. The order was assailed in the 1st Sindh Labour Court, Karachi in Appeal No. 10 of 2010, which was disposed of on 24.2.2011 and the case was remanded to the Authority back to decide the application afresh after framing issues and also provide opportunity to the parties to adduce evidence. This order was assailed before the learned Tribunal through the revision application. The learned Tribunal set aside the order of the Labour Court and restored the order passed by the Authority.

2. The learned counsel for the petitioner argued that the entire impugned order of the learned Tribunal is solely based on Order VIII Rule 10 CPC. The authority below framed one of the points for determination i.e whether the signatory of written statement was competent to sign and another point was whether the matter is to be disposed of in terms of Order VIII Rule 10 CPC because written statement was not signed by a competent person. Learned counsel further argued that Order VIII Rule 10 CPC has nothing to do with the signature of the competent person but it has altogether different implications and repercussions.

3. It was further contended that the Tribunal relied upon the findings given by the Authority that the written statement was inadmissible, hence there could be no defence on behalf of the respondent because the signatory of the written statement had no authority on behalf of the company, so in absence of any such evidence/written statement, the claim of the applicant had gone unrebutted. It was further observed in the impugned order that there was no need to discuss the other issues when there was no defence. The learned counsel for the petitioner argued that the written statement was filed by the competent person and thereafter, affidavit in evidence was also filed by the same person who appeared in the witness box with an opportunity of cross-examination to the counsel of Respondent No. 4, which fact has been admitted by the learned counsel for the Respondent No. 4. In addition, the learned counsel for the petitioner further argued that the Authority cannot exercise the powers of Civil Court hence intricacies of CPC could not be attracted. He further argued that the Labour Appellate Tribunal has been constituted under the provisions of Industrial Relations Act, hence, it has no jurisdiction to entertain revision application for impugning the order of Labour Court passed as an Appellate Court under the provisions of Payment of Wages Act. In support of his contention, he relied upon the following case law.

2004 PLC 170 (Lawrencepur Woolen and Textile Mills Ltd. v. Government of the Punjab & other). In this case, the hon'ble Supreme Court held that the Authority appointed under the Payment of Wages Act does not have any inherent powers which are available to a Court of justice. It cannot render binding judgments on complicated questions of law. The process of investigating or adjudicating the claims of certain employees for giving a direction for payment of wages is not a trial of suit at law. Authority is empowered to exercise certain powers and to take judicial proceedings as are vested in a Civil Court under the C.P.C but only for a very limited purpose.

1. On the contrary, the learned counsel for the Respondent No. 4 argued that though in the memo of revision various grounds were urged by the Respondent No. 4 but the learned Appellate Tribunal has confined its order to the extent of Order VIII Rule 10 CPC and the admissibility of written statement in view of nonappearance of a person who signed and verified the written statement. He shown us the memo of revision at Page No. 155 of the Court file in which various grounds were agitated before the learned Tribunal including that the memo of appeal filed in the Labour Court was not accompanied by a certified true copy of the impugned order of the Authority and the appeal could have been filed only either by the occupier/owner or the Manager of the factory duly notified under the Factories Act, 1934. He further argued that even actual amount directed by the Authority was not deposited at the time of preferring the appeal. However, it was clearly, stated in the memo of revision that two affidavits in evidence were filed and cross-examination was conducted by both the learned counsel before the Authority. He also questioned the jurisdiction of Labour Court to hear the appeal due to various deficiencies in the memo of appeal and non-observance of the procedure but all these grounds were ignored and not adverted by the learned Appellate Tribunal while disposing of the revision application. So far as the question raised by the learned counsel for the petitioner that revision does not lie against the order of Labour Court passed as an Appellate Court under the Payment of Wages Act, the learned counsel for the Respondent No. 4 referred to the following case law:--

(1) PLD 1991 S.C. 385 (Muhammad Hussain & others v. Islamic Republic of Pakistan). The hon'ble Supreme Court held in this case that the Labour Appellate Tribunal in its revisional jurisdiction was competent to revise an order made by the Labour Court under the Payment of Wages Act, therefore on this point the judgment of the High Court was reversed in which it was stated that Labour Appellate Tribunal cannot review an order.

(2) 1981 PLC 561 (National Cement Industries Ltd. v. Sindh Labour Appellate Tribunal and others) Section 38, sub-section (3-a) read with Payment of Wages Act (IV of 1936) Section 17. Revisional jurisdiction of Labour Appellate Tribunal in respect of order passed by Labour Court on appeal under Section 17 of Payment of Wages Act, 1936. Adjudication and determination by Labour Court of any matter under special law, transferred to it under statutory provision, held, proceedings under Industrial Relations Ordinance, 1969 and amenable to revisional jurisdiction of Labour Appellate Authority.

1. Both the learned counsel extensively argued the petition at katcha peshi stage for its disposal. What we have observed from the order of the Authority that only three points for determination were framed i.e. whether the signatory of the written statement was competent to sign, another point was whether the matter is to be disposed of in terms of Order VIII Rule 10 CPC, because written statement was not signed by a competent person. The third point was directly related to the case though general in nature but through which at least main controversy could have been decided whether the applicant was entitled for the relief claimed or not. In our view, Order VIII Rule 10 CPC has altogether different footing and implication. It only gives powers to the Civil Court to pronounce a judgment where any party from whom a written statement is so required fails to present the same within stipulated time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.

2. We have no hesitation in our mind to hold that Order VIII Rule 10 CPC has no application in the present case, as it does not relate to the authority of a person who signed the written statement but it merely relates to the time given by the Court for filing written statement if the same is not filed within the stipulated time. The repercussions of its non-compliance are already provided under Rule 10 itself. The entire order of the tribunal is based on the non-compliance of Order VIII Rule 10 C.P.C without adverting to the other grounds raised in the revision. It is also a matter of record that earlier the claim of the Respondent No. 4 was rejected by the authority and on appeal to the Labour Court the matter was remanded for fresh decision after recording evidence. The learned Labour Court being appellate authority observed that the claim of the applicant requires evidence. The learned tribunal failed to consider that after remanding the matter by the Labour Court to the Authority whether the case was decided on merits or the petitioner was non-suited merely for the reasons that the person who signed the written statement was not authorized. It is an admitted fact that before the authority the written statement was signed and verified by Abdul Ghaffar on behalf of the petitioner. The same person also appeared in the witness-box. He had also filed original power of attorney and resolution of the board of directors along with his affidavit in evidence. The same Abdul Ghaffar Manager Administration appeared in the Labour Court and represented the management in the case filed by the Respondent No. 4 but his appearance was never objected in the Labour Court but his appearance before the Authority was treated unauthorized. In the labour cases what actually matters is the relationship of employer and employee and in order to decide the cases expeditiously the complexities and intricacies of Civil Procedure Code have not been made applicable in its letter and spirit purposely to avoid the delay. The Authority under the Payment of Wages Act simply ignored and discarded the petitioner's defence on the ground that the written statement was not filed by authorized person while the petitioner's management throughout contested the proceedings and never objected or took the plea that the person who had signed the written statement or appeared in the witness-box on their behalf was not authorized. The Tribunal instead of considering the order of Labour Court on merits simply affirmed the findings of the Authority on the applicability of Order VIII Rule 10 CPC which has no germane or nexus in the present case.

3. It is well settled proposition of law which has been expounded by the apex Court that order passed by the Labour Court as an Appellate Court under the provisions of Payment of Wages Act can be assailed before the labour appellate tribunal under its revisional jurisdiction. This view was not only taken in the case of Muhammad Hussain (supra) but also in the case of Ghulam Mustufa reported in NLR 2002 Labour 65.

4. The letter of law makes it quite obvious that while exercising the revisional jurisdiction the Court and or tribunal in order to explore every avenue ought to see what illegality or irregularity was committed by the Court or authority below which required the correction in the revisional jurisdiction. It is basic tenet of law that the Tribunal in its revisional jurisdiction should consider whether the Court below exercised the jurisdiction not vested in it by law or a jurisdiction vested in it by law was failed to be exercised and the Court below has acted in the exercise of its jurisdiction illegally or with material irregularity. The impugned order shows us nothing to comprehend that the learned Tribunal has considered the order of the Labour Court properly which could not have been set aside through a snap decision but the proprietary demand that under the revisional jurisdiction, the tribunal must have reached to the logical conclusion as to, what irregularity or illegality committed in the order of Court below which was first and foremost consideration. On the contrary, the order of Appellate Court was set aside for the reasons that the Authority had rightly passed the order in view of Order VIII Rule 10 CPC, which is neither correct proposition or exposition of law nor the correct approach of law.

5. Where a Tribunal/Court or an Authority travels beyond its jurisdiction or acted in excess of its jurisdiction or powers or commits an error apparent on the face of the record or acts outside the scope of law, this Court under Article 199 of the Constitution has ample and adequate power for supervision and correction. High Court under its constitutional jurisdiction can examine the legality of an order passed by the special Court or tribunal constituted under the special enactment and if the order is found illegal it can be rectified, rescinded or altered. If any order is passed in violation of law the same can be conveniently be questioned and quashed under the constitutional jurisdiction of this Court to remedy any mischief arising out of an illegal order.

6. In the wake of above discussion, the petition is admitted to regular hearing. The impugned order is set aside, matter is remanded to the learned Labour Appellate Tribunal back to decide the revision application afresh within a period of two months after providing ample opportunity of hearing to the parties. The petition is disposed of along with listed application.

(R.A.) Petition disposed of

PLJ 2014 Karachi 279 (DB)

Present: Faisal Arab &Salahuddin Panhwar, JJ.

MUHAMMAD MUSTAFA--Petitioner

versus

Syed AZFAR ALI and others--Respondents

C.P. No. 3213 of 2012, decided on 17.9.2013.

Limitation Act, 1908 (IX of 1908)--

----S. 5--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Condonation of delay--Question of laches--Distinction between limitation and laches--Question of maintainability--Delay of each day has to be explained by furnishing sufficient cause for enlargement of time and condonation of delay within contemplation of Section 5 of Limitation Act, whereas in later case lapse of time or question of laches has to be examined on equitable principles--Writ jurisdiction, being discretionary and extraordinary, has not been restricted by time factor hence issue of limitation is not attracted in issues involved in writ jurisdiction however question of laches has to be examined but such does not deny grant of right or remedy unless grant of relief in addition to being delayed, must also perpetuate injustice to another party--There can be no denial to well settled principle of law that if law and procedure requires a thing to be done in a particular manner then that has to be done in that manner and not otherwise--Basic judgment of trial Court was not sustainable under law, thus petition in hand was allowed. [Pp. 283, 284 & 285] A, B, C & J

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

----O. XII, R. 6--Suit for recovery of damages--Compulsory retired by authority--Application for recording decree on admission--Dismissal on non-compliance of office objection and non-prosecution--Mistake of Court should not be allowed to continue causing prejudice to one--Quantum of claim for damages was not admitted--Essential for admission--It speaks about admissions of fact which should also be clear, unambiguous, unqualified and unequivocal else same shall not qualify for grant of a decree under Order XII Rule 6 of Code, else Court is required to frame issue(s)--An admission is likely to bring penal consequences which cannot be inflicted on ambiguous and unclear things--Petitioner admitted claim regarding his entitlement to recover an amount of Rs. 1500,000/- hence in such eventuality application cannot be legally termed to have qualified for grant of a decree in favour of Respondent No. 1 more particularly when petitioner has denied to have made an admission in his counter affidavit to application U/O XII Rule 6,, CPC--Trial Court has not been in accordance with meaning and objective of Order XII Rule 6,, CPC hence same cannot sustain--Absence of defendant (s) or their admission (s) towards claims of plaintiff shall not absolve Court (s) from their legal obligation (s) to examine claim of plaintiff and his her entitlement for relief--Even if it is believed for a minute that there was an admission yet plaintiff was required to prove his entitlement for recovery of claimed amount as damages which was prima facie lacking in instant case yet trial Court recorded impugned judgment which is a patent mistake on part of learned trial Court judge. [Pp. 284 & 285] D, E, F, G, H & I

Mr.Yasin Ali, Advocate for Petitioner.

Mr.Umer Hayat Sandhu, Advocate for Respondent No. 1.

Date of hearing: 17.9.2013.

Order

Salahuddin Panhwar, J.--By the dint of this order we intend to dispose of the instant petition, whereby the petitioner has called in question the judgment and decree and order (s), recorded by the learned lower Court (s) in relation to a suit filed by Respondent No. 1 for recovery of Rs.1500,000/- against the petitioner.

1. The brief facts, leading to instant petition, are that Respondent No. 1 filed a suit Bearing No. 29/2009 against the petitioner for recovery of Rs. 15,00,000/- for damages wherein he pleaded that he was appointed as Naib Qasid in Port Qasim Authority as a permanent employee and served honestly as he received certificates of excellence from head of the department. Petitioner with mala fide intention and to harass Respondent No. 1 moved an application on 08.4.2000 to D.G Administration leveling false and frivolous allegations against Respondent No.

2. It is further pleaded that in consequence of inquiry he was compulsory retired by authority which he challenged departmentally but same was dismissed. He then filed appeal before Federal Services Tribunal Karachi which was allowed with order to reinstate the Respondent No. 1 and to conduct de-novo disciplinary proceeding against the Respondent No. 1. In de-novo proceedings the statement of the petitioner was also recorded and consequent to such de-novo inquiry the Respondent No. 1 was found innocent.

3. Thus the Respondent No. 1, claimed Rs.15,00,000/- as damages by classifying same in following manner:--

"Rs. 5,62,000/- for mental torture, agony, stress and loss of health;

Rs. 198,000/- as loss of unnecessary litigation expenditure; and

Rs.740,000/- for loss towards his prestige, name, fame and reputation."

1. Record reveals that just after institution of the suit the petitioner/defendant filed an application before the learned trial Court; wherein it was mentioned that:

On such application the Respondent No. 1 did not agree to forgive the petitioner and prayed to the trial Court for ex-parte order. On such endorsement the petitioner filed his written statement denying the assertions and claims of the Respondent No. 1. Later, the Respondent No. 1 filed an application U/O XII Rule 6, CPC for recording decree on admission of the petitioner which was objected by the petitioner, however, on 28.01.2010, the learned trial Court decreed the suit of the Respondent No. 1 under Order XII R. 6, CPC.

1. The petitioner filed appeal against such decree but same was dismissed on non-compliance of office objections and non-prosecution vide order dated 04.04.2010. The Respondent No. 1 then filed an Execution application No. 139 of 2010, whereas petitioner filed application u/S. 12(2), CPC. The learned Executing Court allowed the execution application while dismissing application of the petitioner, made under Section 12(2), CPC vide order dated 09.12.2011. The learned Executing Court also attached salary, increase of salary on account of charter of demand pay scale 2011 and leave encashment etc of the petitioner in favour of Respondent No. 1 vide orders dated 8.11.2010, 23.11.2011 and 28.11.2011.

2. As per petitioner, after total deductions on said account nothing is left to his credit for his family so he has filed the instant petition with following prayer:--

(a) Set aside the impugned judgment and decree both dated January 28, 2009 (Annexure P/12 & P/12(a)) passed by the learned Respondent No. 3;

(b) Set aside all subsequent impugned order dated 19.12.2011 (Annexure P/17), 08.11.2010(Annexure P/18), 23.11.2011 (Annexure P/19), 28.11.2011 (Annexure P/20) and 05.04.2010 (Annexure P/14).

(c) Pass orders for refund of entire amount to the petitioner already recovered from him in compliance of impugned orders.

(d) Grant stay order in respect of further recovery from the petitioner till the final disposal of the present petition.

1. Learned counsel for the petitioner has argued that very basic decree recorded by the learned Trial Court Judge is illegal, void, and not sustainable under the law hence whole structure raised, thereon is of no substance; the Rule-6 of Order-XII of the Code has not been understood properly by the learned trial Court Judge hence such failure on part of learned trial Court has resulted in serious miscarriage of justice; the petitioner was never read out and explained the contents of allegedly moved application of admission; he submitted that mistake of Court should not be allowed to continue causing prejudice to one. He concluded his arguments with prayer for allowing petition.

2. On the other hand, learned counsel for the Respondent No. 1 has argued that since it is a matter of record that the petitioner did not challenge the order of executing Court in time and allowed deduction of amount in satisfaction of the decree therefore, at such belated stage he is not legally justified from questioning the legality of the judgment/order, particularly when such stand is hit by laches. In the end he prayed that petition, being not maintainable, be dismissed.

3. We would like to take the objection, so raised by the learned counsel for the Respondent No. 1, that the petition is not maintainable as this is a question which goes to the root of the case. To attend this objection properly we would like to add here that there is a marked distinction between limitation and laches. In the former case the delay of each day has to be explained by furnishing sufficient cause for enlargement of time and condonation of delay within the contemplation of Section 5 of the Limitation Act, whereas in the later case lapse of time or the question of laches has to be examined on equitable principles. On this proposition, it will be conducive to refer the case of Jawad Mir Muhammadi vs. Haroon Mirza (PLD 2007 SC 472) wherein full Bench of Honourable Supreme Court has held that:

"Laches per se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case ......... and it is further held "that no party should be made to suffer on account of the act of the public functionaries or of a Court."

We may also add here that the writ jurisdiction, being discretionary and extraordinary, has not been restricted by time factor hence issue of limitation is not attracted in the issues involved in writ jurisdiction however question of laches has to be examined but this does not deny the grant of right or the remedy unless the grant of relief in addition to being delayed, must also perpetuate injustice to another party. (under lining is added for emphasis). In the instant case the petitioner has called in question the very legality of the very procedure, adopted by the learned trial Court, in recording the judgment under order XII R. 6, CPC and its subsequent consequences while asserting that consequences of impugned judgment/order is continuing upon the petitioner in shape of deduction of the amount therefore, suffice to say cause is continuing to the petitioner. Moreover the petitioner has questioned the legality of procedure, so adopted by learned trial Court, in recording the judgment under order XII R. 6, CPC, which falls within meaning of writ of Certiorari and needless to mention that on an application to such complaint, this Court can legally examine the order/judgment of inferior Court being the Court of supervisory jurisdiction.

1. Having attended to the above question of maintainability of the petition, now, we would revert to merits of the case. There can be no denial to the well settled principle of law that if the law and procedure requires a thing to be done in a particular manner then that has to be done in that manner and not otherwise. What we find from perusal of the application of the petitioner (which he denies to have made voluntarily) that in such application the petitioner has nowhere admitted the claim of the Respondent No. 1 but only stated to have made a mistake and sought pardon. The petitioner did not admit to have caused any damage to the Respondent No. 1 nor admitted to be ready to pay the claimed compensation but he was seeking only pardon. Moreover, the quantum of the claim for damages was not admitted. The perusal of the Rule-6 of the Order-XII of the Code shows that it speaks about admissions of the fact which should also be clear, unambiguous, unqualified and unequivocal else the same shall not qualify for grant of a decree under order XII rule 6 of the Code, else the Court is required to frame issue(s). Reference if any, can be made to the case of Col. Javed Iqbal Lodhi vs. Lt. Col. Nadeem Ahmar & others reported in 2007 CLS 831.

2. The requirement for an admission to be clear, unambiguous, unqualified and unequivocal, apparently are not available in this case. It is pertinent to mention that an admission is likely to bring penal consequences which cannot be inflicted on ambiguous and unclear things. The contents of the application no where speaks that petitioner admitted claim of Respondent No. 1 regarding his entitlement to recover an amount of Rs. 1500,000/- hence in such eventuality the application cannot be legally termed to have qualified for grant of a decree in favour of the Respondent No. 1 more particularly when the petitioner has denied to have made an admission in his counter affidavit to application U/O XII Rule 6, CPC.

3. Hence, the failure of the learned trial Court judge to have itself satisfied about genuineness of such an application or contents thereof within parameter of settled norms is sufficient to bring it out of the scope of Rule-6 of Order-XII, CPC. From very inception the concept of fair trial and due process has always been the golden principles of administration of justice and after incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973 vide 18th Amendment, it has become more important that due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void. It is significant to add there that where things have not been done in the manner, as required by the law and procedure, the same cannot be given legal sanctity particularly when the same are resulting in penal consequences or causing rights of an individual, therefore, we safely hold that basic judgment of the learned trial Court judge has not been in accordance with meaning and objective of Order XII Rule 6, CPC hence the same cannot sustain.

4. Needless to add here that absence of the defendant (s) or their admission (s) towards claims of the plaintiff shall not absolve the Court (s) from their legal obligation (s) to examine the claim of the plaintiff and his her entitlement for relief, claimed far. Let this case be examined on this touch stone. There can also be no denial to well settled principle of law that to succeed in a case for damages the plaintiff is legally required to establish two different facts i.e:--

(i) that proceeding, if any, launched against him/her were causeless and mala fide;

(ii) His/Her entitlement for General and Special damages in consequence of first part;

1. Thus, even if the plaintiff succeeds in establishing first part yet before insisting the decree he has to establish his/her entitlement for recovery of damages. In the instant case even if it is believed for a minute that there was an admission yet the plaintiff (Respondent No. 1) was required to prove his entitlement for recovery of claimed amount as damages which is prima facie lacking in the instant case yet the learned trial Court recorded the impugned judgment which is a patent mistake on part of the learned trial Court judge. Needless to refer to well settled principle of law that none should suffer for an act or mistake of a Court.

2. The perusal of the impugned judgment of the learned trial Court, recorded under Order XII Rule 6, CPC further speaks that the learned trial Court considered the application of the petitioner as an admission equal to allegation/claim of the Respondent No. 1 to the effect that petitioner moved a false application against him. However, contents of the application of the petitioner nowhere speaks that petitioner admitted that his application was false. In such a situation the application of the petitioner, if any, was not sufficient to qualify for a decree in a case for recovery of damages.

3. In result of what has been discussed above, we are of the considered view that basic judgment of the learned trial Court is not sustainable under the law, thus petition in hand was allowed by short order dated 17.09.2013, which is:--

"For reasons to be recorded later on this petition is allowed. The decision of the Appellate Court and the judgment passed by the Civil Court are set aside. The case is remanded to the trial Court to decide the case of defamation afresh after affording full opportunity to parties to adduce evidence. The amount that has been recovered by private respondent shall remain with him and shall be subject to the decision in the suit."

(R.A.) Petition allowed

PLJ 2014 Karachi 286 (DB)

Present: Riazat Ali Sahar & Zafar Ahmed Rajput, JJ.

TALUKA MUNICIPAL ADMINISTRATION GHOTKI through its Administrator--Petitioner

versus

FATEH CHAND & 9 others--Respondents

Const. Petition No. D-179 of 2011, decided on 3.12.2013.

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

----S. 42--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Declaratory relief was granted--Relief of mandatory injunction was denied--No alternate but to file execution application--Validity--It is settled rule of law that a suit for declaration is covered by Section 42 of Specific Relief Act, 1877 and suit for mere declaration of title does not lie where plaintiff though in a position to claim a consequential relief omits to do so--Once trial Court comes to conclusion that plaintiff is entitled to relief of declaration, consequential relief cannot be denied. [P. 291] A & B

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

----S. 47(1)--Executing Court--Declaratory decree--Transfer of suit--Validity--Executing Court is empowered to determine all questions arising between parties to suit in which decree was passed, relating to execution, discharge or satisfaction of decree--It is well recognized proposition of law that scope of Executing Court is limited to extent that it cannot go behind decree but fact remains that where in implementation and execution of a decree question of its interpretation is involved then it is for Executing Court to examine record to conclude exact nature of reliefs allowed to a party on basis of decree framed in a suit--After 6 years, petitioner has impugned order of Executing Court in petition--Slumber of petitioner for such a long period is indicative of fact that writ petition is hit by laches and is, therefore, liable to be dismissed on this score. [P. 292] C & D

2006 YLR 3074 & 2012 SCMR 280, ref.

Constitution of Pakistan, 1973--

----Art--Civil Procedure Code, (V of 1908), S. 47(1)--Constitutional Petition--Order of executing Court--Relief of mandatory injunction was denied--No appeal or revision was preferred against impugned order--Constitutional petition was filed after six years--Question of maintainability--Petitioner has omitted to assail impugned order in appropriate proceedings in accordance with law and has moved in High Court in its constitutional jurisdiction--Once appeal or revision was not filed in time before Appellate or Revisional Authority, writ petition is not competent--Before approaching High Court for redressed of grievance by invoking its constitutional jurisdiction under Art. 199 of Constitution, it is incumbent upon petitioner to have availed alternate remedies according to law. [P. 293] E

Mr.Mukesh Kumar G. Karara, Advocate for Petitioner.

M/s. A.M.Mubeen Khan and Mr. Manoj Kumar Tejwani, Advocates for Respondents.

Date of hearing: 3.12.2013.

Order

Zafar Ahmed Rajput, J.--Through instant petition, the petitioner, by invoking the Constitutional Jurisdiction of this Court, has impugned the order dated 4.1.2005, passed by the Court of Senior Civil Judge, Ghotki in Execution Application No. 03 of 2004, with the following prayers:--

(a) To declare that the act of the learned Executing Court thereby giving directions to its Nazir to execute the sale deed in respect of public plot, measuring 2768 sq. fts, (a Public Plot) is and will be illegal, unlawful, without any lawful authority and jurisdiction and without any legal consequences.

(b) To undo all the subsequent actions on the basis of the Order dated 4-1-2005 passed by the learned Executing Court, including the Sale Deed No. 36 dated 11-1-2005, executed in favor of the Respondent No. 1 in respect of the aforesaid plot converted in to C.S. No. 932 and 932/A, situated in Town Ghotki with further directions to reserve the aid plot as a public in future.

(c) To restrain the Respondent No. 1 from transferring, alienating, and/or creating any third party interest in respect of the aforesaid public plot, by himself, through his agents, attorneys, or any other person authorized in this behalf, in any manner whatsoever, till the final decision of the present petition, by granting appropriate relief of injunction.

(d) To grant any other just and equitable relief, which has not been specially prayed for, under the circumstances of the present matter and for the just decision of the present petition and in the interest of justice.

(e) To award cost of the petition.

1. Briefly stated, the facts of the case are that the Respondent No. 1/plaintiff filed Civil Suit No. 113 of 1982 (Re: Fateh Chand vs. Govt. of Sindh & others) before the Court of learned Senior Civil Judge, Ghotki, alleging therein that an open plot of TMA Ghotki (petitioner), admeasuring 2768 sq. fts., is situated in the adjacent to his house and he is in possession thereof for last more than 20 years as "Mohag" and in the year 1975 he applied to the then Deputy Commissioner, Sukkur for the grant of the suit plot, which was accordingly granted to him on 9-1-1976 at the rate of Rs. 2/- per sq. fts. Thereafter, due to the objections of his neighbor, namely, Assardas (Respondent No. 5) the then Commissioner Sukkur Division, Sukkur, vide order dated 09-06-1976, reserved the suit plot for public purpose by cancelling the allotment/grant in favour of plaintiff. As such, cause of action arose to plaintiff for filling the said civil suit for declaration and mandatory injunction with the following prayers:--

(a) To declare that the order passed by the Defendant No. 3 vide his office Letter No. RB(C)-223, dated 1-9-1976, as legal and binding upon the parties.

(b) To declare the order dated 19-6-1976, passed by the Defendant No. 6 vide his office letter No. 0-2-49 L G/76, and order dated 31-07-1976, passed by the Defendant No. 3 in pursuance thereof as illegal, mala fide, ultra vires, hence, null and void in the eyes of law and of no legal consequences.

(c) To direct the Defendant No. 4 through the mandatory injunction of this Honourable Court to receive the Malkana amount of plot in question from the plaintiff at the sanction rate of Rs. 2/= per sq. fts. And transfer the same to the plaintiff after observing usual formalities.

(d) To grant any other relief of which this Honourable Court deems just and proper under the circumstances of the case.

1. Petitioner/Defendant No. 4 contested the said suit by filling, written statement. After framing of issues and recording of the evidence of the parties, the suit of Respondent No. 1 was decreed by the learned trial Court to the extent of prayer clauses (a) and (b), vide judgment and decree dated 27-10-1996. However, the learned trial Court denied to grant relief of mandatory injunction (prayer clause (c) by observing that granting a plot on lease, receiving the amount of lease and executing a lease deed are legal and lawful function of the petitioner/Defendant No. 4 as per municipal laws and the Civil Court cannot sit over the shoulders of the petitioner to do any act, which is under exclusive jurisdiction of petitioner.

2. Petitioner assailed the said judgment and decree in Civil Appeal No. 4 of 1997, which was dismissed vide judgment and decree dated 30-04-2001. Thereafter, the Respondent No. 1 /D.H filed Execution Application No. 3 of 2004 seeking assistance of the Court for execution of decree in the following manner:

"Direct the Opponent/Defendant No. 4-A to transfer the suit land/area of 2768 sq. fts. in the name of applicant/plaintiff-D.H and in case of his failure to do the needful, the Nazir of this Honourable Court may be directed to transfer the plot/area in suit and title in the name of applicant/plaintiff-D.H through registered sale-deed or through other mode applicable to the properly of the opponent No. 4-A, as the in the name of applicant/D.H has credited a sum of Rs. 5,536-00 in the current Account No. 2625-68 of the opponent No. 4-A in the Habib Bank Limited Ghotki Branch being Malkana of the suit plot/area of 2768 sq. fts lying in front of applicant/D.H's house and stands allotted to him by Deputy Commissioner Sukkur at the rate of Rs. 2/= per sq. fts."

1. After hearing the parties, the Executing Court allowed the Execution Application vide Order dated 18-08-2004; thereafter, vide Order dated 04-01-2005, the Executing Court directed to the Nazir of the Court to execute the title document for transfer of the suit plot in favour of respondent/ plaintiff/D.H before the Sub-Registrar. It is against this Order, the petitioner has filed the instant petition after 6 years.

2. Heard learned counsel for the parties and perused the material available on the record.

3. Mr. Mukesh Kumar G. Karara, the learned counsel for the petitioners, has argued that the Trial Court has failed to look into the contents of its judgment and decree, whereby the relief of mandatory injunction was declined and the same was left for the petitioner to deal with in according with municipal laws and so far municipal laws are concerned, the municipal laws do not permit the petitioner to transfer any public plot to any person. He has also contended that it is a well settled law that an Executing Court cannot go behind the terms of a decree, but in instant case the learned Executing Court has illegally exercised its jurisdiction by allowing execution of declaratory decree; thereby a public plot has been transferred to Respondent No. 1 through execution of sale-deed in his favour; thus, the Executing Court acted unlawfully and without authority and for that the petitioner has invoked the Constitutional Jurisdiction of this Court to undo the said illegal act of learned Executing Court.

4. On the other hand Mr. A. M. Mubeen Khan, the learned counsel for the Respondent No. 1, has vehemently denied the case of the petitioner and contended that the learned trial Court, vide judgment dated 27-10-1996 granted declaratory relief holding the order dated 01.09.1976, passed by the Respondent No. 2/Defendant No. 3, as legal and binding upon the parties where under the suit plot was allotted to Respondent No. 1 but the relief of mandatory injunction was denied by the learned trial Court. Since the declaratory relief has been granted to Respondent No. 1, the petitioner should have executed title deed of the suit plot in favour of Respondent No. 1 but petitioner refused to do so, and after that the Respondent No. 1 had no other alternate but to file an execution application, for seeking direction to petitioner, alternatively to the Nazir of the Court, to transfer the suit plot in the name of Respondent No. 1. He has also contended that the Executing Court has rightly passed the impugned Order as under Section 47 of C.P.C, the Executing Court is empowered to resolve all the questions arising in an execution application. He has also contended that learned Trial Court did not frame any issue with regard to the status of suit property as "Public Property" Lastly he contended that since no appeal or revision was preferred against the impugned order, the instant Constitutional Petition, after six years, is not maintainable.

5. Mr. Manoj Kumar Tejwani, the learned counsel for the Respondent Nos. 5 to 9 adopted the arguments of learned counsel for the petitioner.

6. We have given due consideration to the contentions of learned counsel for the parties.

7. It appears from the perusal of the material on record that the Respondent No. 1/plaintiff filed the said civil suit on 28-06-1982 and the Petitioner/Defendant No. 4 filed the written statement with vague replies to the contents of plaint. The Respondent No. 1 appeared himself as witness-but the defendants did not cross-examine him and the suit of Respondent No. 1/plaintiff was decreed on 27-10-1996. The Civil Appeal preferred by the petitioner was also dismissed on 30-04-2001. Thereafter, the petitioner did not file any civil revision against the impugned judgments and decree passed by the learned trial Court and Appellate Court. Then Respondent No. 1 filed Execution Application on 07-04-2004 which was allowed by the Executing Court vide order dated 08-08-2004 and on 04-01-2005 the Executing Court directed the Nazir of the Court to execute the document for transfer of the subject plot in favour of Respondent No. 1. Thereafter, the Respondents Nos. 5 to 9 filed an application under Section 12(2) C.P.C. R/W Section 151 of C.P.C, assailing the validity of the Orders of Executing Court dated 08-08-02004 and 04-01-2005, which was also dismissed by the learned trial Court vide order dated 28-06-2005 and against that order Civil Revision No. 19 of 2005 was preferred by the Respondents Nos. 5 to 9, which was heard and dismissed by the Court of learned 1st Additional District Judge, Ghotki. Thereafter on 21-01-2011, the petitioner filed the instant petition, after 6 years, against the order of Executing Court dated 4.1.2005.

8. The main thrust of the arguments of learned counsel for the petitioner was to the effect that the Executing Court illegally allowed the execution application and thereby directed to Nazir of the Court to execute title document in favour of Respondent No. 1 in respect of suit plot, ignoring the fact that the trial Court did not grant the relief of mandatory injunction to Respondent No. 1.

9. It is settled rule of law that a suit for declaration is covered by Section 42 of the Specific Relief Act, 1877 and under Section 42 ibid a suit for mere declaration of title does not lie where the plaintiff though in a position to claim a consequential relief omits to do so. In the present case the Respondent No. 1 in his suit for declaration had claimed consequential relief of mandatory injunction seeking thereby direction to petitioner to receive the Malkana amount of suit plot from him and transfer the same in his favour after observing usual formalities. The learned trial Court granted the relief of declaration to Respondent No. 1 but denied relief of mandatory injunction by observing that granting a plot on lease, receiving the amount of lease and executing a lease deed are legal and lawful function of the petitioner/ Defendant No. 4 as per municipal laws and the Civil Court cannot sit over the shoulders of the petitioner/Defendant No. 4 to do any act, which is under its exclusive jurisdiction. We are of the view that once the trial Court comes to the conclusion that the plaintiff is entitled to the relief of declaration, the consequential relief cannot be denied. In the case of Muhammad Khaliq vs. Abdullah Khan and 4 others, reported as 1987 CLC 1366, it has been observed that "where consequential relief flows from the main relief plaintiff cannot be denied such relief even if he had omitted to ask for the same. Plaintiff proving to be bona fide allottee of the plot, would be entitled to consequential relief."

10. It is evident that the Respondent No. 1 after obtaining declaratory decree from learned trial Court approached to petitioner for transfer of suit plot in his favour by executing title document but he was refused and thereafter the Respondent No. 1 filed the Execution Application. Under Section 47(1) of C.P.C., the Executing Court is empowered to determine all questions arising between the parties to the suit in which the decree was passed, relating to the execution, discharge or satisfaction of the decree. No doubt, it is well recognized proposition of law that the scope of Executing Court is limited to the extent that it cannot go behind the decree but the fact remains that where in the implementation and execution of a decree the question of its interpretation is involved then it is for the Executing Court to examine the relevant record to conclude exact nature of the reliefs allowed to a party on the basis of decree framed in a suit. Reference may be made in this regard to the case of Muhammad Afzal and another vs. Pakistan International Airlines Corporation, reported as 2006 YLR 3074. Therefore, in our view the Executing Court has rightly allowed the execution application of the respondent and passed the impugned order.

11. The learned counsel has also argued that the suit plot is a public plot, which cannot be allotted to Respondent No. 1. This point was neither agitated before the learned trial Court nor was any issue framed on it. This argument is, therefore, bereft of force because it touches the factual controversy and deciding such controversy was the domain of the trial Court, which has been done by the learned trial Court.

12. We have already observed that after 6 years, the petitioner has impugned the order of Executing Court in this petition. The slumber of the petitioner for such a long period is indicative of the fact that the writ petition is hit by laches and is, therefore, liable to be dismissed on this score. The Honourable Supreme Court of Pakistan in the case of State Bank of Pakistan through Governor and another vs. Imtiaz Ali and others, reported as 2012 SCMR 280 has observed that:

"Laches is a doctrine where under a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement if it is found by the Court of a law that its case is hit by the doctrine of laches/limitation. Rights remain with the party but it cannot enforce it. The limitation is examined by the Limitation Act or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved does not approach the appropriate forum within the stipulated period/time, the grievances though remains but it cannot be redressed because if on one hand there was a right with a party which he could have enforced against the other but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party."

1. Moreover this is a writ petition, which is not substitute of Appeal or Revision. The petitioner has omitted to assail the impugned order in appropriate proceedings in accordance with law and has moved in this Court in its constitutional jurisdiction. Once the appeal or revision was not filed in time before the Appellate or Revisional Authority, the writ petition is not competent. Before approaching the High Court for redressed of grievance by invoking its constitutional jurisdiction under Article 199 of the Constitution, it is incumbent upon the petitioner to have availed alternate remedies according to law. Reference may be made to the case of Muhammad Azhar Khan and another vs. Assistant Commissioner/Collector, Toba Tek Sinuh and others, reported as 2006 SCMR 778.

2. In view of what has been discussed above, this constitutional petition is dismissed on merit as well as for being grossly barred by time and incompetent, along with the listed application, with no order as to costs.

Above are the reasons of our short order dated 3.12.2013, whereby this Constitutional Petition was dismissed.

(R.A.) Petition dismissed

PLJ 2014 Karachi 293

Present: Irfan Saadat Khan, J.

SALMAN KHAN--Petitioner

versus

MUMTAZ HUSSAIN MANGI and another--Respondents

Const. Petition No. S-1839 of 2013, heard on 18.8.2014.

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

----S. 151--Constitution of Pakistan, 1973, Art. 199--Constitution Petition--Interlocutory order was passed by Rent Controller--Affidavit in evidence--Maintainability of petition--Mistakenly were permitted by Court--Violation of National Judicial Policy--Affidavits in evidence were filed without seeking permission from Court--No illegality--Validity--Moreover, it is a settled proposition of law that petitions were not maintainable against an interlocutory order and decisions relied upon in this regard by Counsel fully supports his version--Counsel for petitioner was categorically asked a question whether petition is maintainable in respect of an interlocutory order, no plausible explanation was furnished except by saying that petition could be filed where order is palpably without jurisdiction--Order passed by Rent Controller was without jurisdiction--No merit in instant petition and dismiss same accordingly. [Pp. 295 & 296] A

Mr.Syed Bahadur Ali Shah, Advocate for Petitioner.

Mr.Manoj Kumar Tejwani, Advocate for Respondent.

Mr.Shahryar Imdad Awan, Advocate for State.

Date of hearing: 18.8.2014.

Order

The instant petition has been filed with the following prayers:--

(a) To declare that the impugned order dated 29.5.2013 passed by learned 1st Rent Controller, Sukkur to be illegal, unwarranted by law and set-aside the same.

(b) To suspend the operation of impugned order dated 29.5.2013 passed by learned 1st Rent Controller, Sukkur, till the final disposal of this petition.

(c) To award the cost of this petition.

(d) To grant any other relief which this Hon'ble Court may deem fit and proper under the circumstances of the case.

Briefly stated the facts of the case are that the petitioner is a tenant of the respondent's ground floor in the property bearing C-105/127 Military Quarters Takkar Muhalla, Sukker. However, some differences arose between the parties and thereafter the petitioner started depositing the rent before the Rent Controller, Sukkur. Thereafter the respondent filed Rent Application No. 49 of 2012 for ejectment of the petitioner from the said rented premises, which matter is pending adjudication.

The Rent Controller thereafter issued notices to the present petitioner who filed his written statement along with affidavit in evidence of himself and that of his two witnesses. However the respondent filed an application u/S. 151, CPC for discarding the affidavit in evidence filed by the petitioner, which application according to the petitioner has incorrectly been allowed by the Rent Controller vide order dated 29.5.2013, against which the present petition has been filed.

Mr. Syed Bahadur Ali Shah, advocate has appeared on behalf of the petitioner and submitted that the learned Judge was not justified in allowing the said application. Learned Counsel stated that the rent law being a special law, hence the provisions of Civil Procedure Code being ordinary law, are not applicable to the said provisions. Hence in his view the learned Judge has erred in allowing the said application u/S. 151 C.P.C. and the order passed by the learned Judge is liable to be vacated. While elaborating this point of view, the learned Counsel for the petitioner submits that by allowing the application filed by the respondents the Rent Controller infact has deprived the petitioner, who is the respondent before the Rent Controller, from making his submissions meaning thereby that the right of hearing has been taken away by the learned Judge by allowing the said application. He further states that since the order passed by the learned Judge suffer from illegalities and infirmities, the same may be set-aside. In support of his above contentions the learned Counsel has placed reliance on the case of Ashique Hussain v. Sikander Ali Shah and 14 others (2011 CLC 373).

Mr. Manoj Kumar Tejwani, learned Counsel has appeared on behalf of the Respondent No. 1 and at the very outset, submitted that the instant petition is not maintainable. He submitted that the instant petition has been filed against an interlocutory order passed by the Rent Controller, hence the same is not challengeable. In support of his contention, the learned Counsel has relied upon the case of Laeeq Ahmed Khan & 2 others vs. Mst. Fouzia Asif & another (2014 MLD 532); Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary (1996 SCMR 1165); Dadex Eternit Limited v. Syed Haroon Ahmed and others (PLD 2011 Karachi 435); and Tahira Mubashar v. Zakia Khan (2007 CLC 1961 (Karachi).

Mr. Shahryar Imdad Awan, learned Advocate for the State adopted the arguments of Mr. Manoj Kumar Tejwani, learned Counsel for the Respondent No. 1 and submits that this petition may be dismissed, as the same is not maintainable.

I have heard the learned Counsel for the parties at some length and have perused the record. It is seen that the affidavits in evidence were filed by the applicant which mistakenly were permitted by the Court to be taken on record which was in violation of the National Judicial Policy. However when by filing an application u/S. 151 C.P.C., attention of the learned Judge was drawn to this fact, the learned Judge instantly realized this mistake and allowed the said application by categorically observing that the said affidavits in evidence were filed without seeking permission from the Court. Hence in my view no illegality appears to have been made by the learned Judge. Moreover, it is a settled proposition of law that that petitions are not maintainable against an interlocutory order and the decisions relied upon in this regard by the Counsel for the Respondent No. 1 fully supports his version. Counsel for the petitioner was categorically asked a question whether the petition is maintainable in respect of an interlocutory order, no plausible explanation was furnished except by saying that petition could be filed where order is palpably without jurisdiction. However, in the instant petition, it is not the case of the petitioner that the order passed by the Rent Controller was without jurisdiction. I, therefore, under the circumstances find no merit in the instant petition and dismiss the same accordingly.

Above are the reasons of my short order dated 18.8.2014.

(R.A.) Petition dismissed

PLJ 2014 Karachi 296 (DB)

Present: Muhammad Ali Mazhar & Abdul Rasool Memon, JJ.

ZAMIR IQBAL KHAN & another--Petitioners

versus

PROVINCE OF SINDH through Chief Secretary, Sindh, Karachi and 2 others--Respondents

Const. Petition No. D-5463 of 2013, decided on 20.1.2014.

Sindh Civil Servants Act, 1973--

----S. 10--Constitution of Pakistan, 1973--Arts. 199 & 212--Constitutional Petition--Transfer and posting of civil servants pertains to terms and conditions of service--Bona fide transfer and posting order--Challenge to--Question of maintainability and assumption of powers--Validity--It is also an admitted fact that both petitioners were civil servants and their terms and conditions of services were governed under Sindh Civil Servants Act, 1973--Every civil servant shall be liable to serve anywhere within or outside province on any post under Government, Federal Government, or any Provincial Government or local authority or corporation or body set up or established by any such Government--Powers to entertain service matters relating to terms and conditions of service is barred under Art. 212 of Constitution in which specific and appropriate remedy has already been provided under Sindh Service Tribunal Act--High Court before taking any decision regarding admission of constitutional petition and or passing order granting interim relief will first decide question of its jurisdiction in view of Art. 212 of Constitution--Matters relating to posting and transfer of civil servant relating to terms and conditions of his service and such dispute will fall within exclusive jurisdiction of Service Tribunal--Orders, even if mala fide, ultra vires or coram non judice, fell within ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result of bar contained under Art. 212 of Constitution. [Pp. 302 & 303] A, B, C, F & G

Constitution of Pakistan, 1973--

----Art. 212--Administrative Court or Tribunal--Legislature may be act provide for establishment of one or more Administrative Courts or Tribunals for matters relating to exercise of exclusive jurisdiction in respect of matters relating to terms and conditions of persons. [P. 302] D

Constitution of Pakistan, 1973--

----Art. 212(2)--Administrative Court--Where any Tribunal is established, no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which jurisdiction of such Administrative Court or Tribunal extends--Since equally efficacious remedy is provided to civil servants under Sindh Service Tribunal Act to invoke jurisdiction of Service Tribunal, therefore, constitutional petition is not maintainable. [P. 302] E

Mr. Sarfraz Ali Metlo, Advocate for Petitioners.

Mr. Abdul Jalil Zubedi, AAG for Respondents.

Mr. Abdul Fattah Malik and Ms. Farkhunda Mangi, Advocates for Respondent No. 3.

Date of hearing: 20.1.2014

Order

Muhammad Ali Mazhar, J.--Through this petition the petitioners have claimed the following reliefs:--

"(a) declare that the impugned Notification No. SOEII (W&S) 12-/2008 dated 17.12.2013 issued by the Respondent No. 2 is illegal, mala fide, without lawful authority and is of no legal effect;

(b) restrain the respondents from harassing, humiliating and victimizing the petitioners;

(c) grant any other relief(s) as this Hon'ble Court deems fit and proper under the circumstances of the case;

(d) award compensation and exemplary costs;

(e) interim orders to suspend the operation of the impugned notification dated 17.12.2013".

1. The brief facts of the case are that the petitioners are civil servants having more than 24 years of unblemished service record at their credit and presently they are serving as Assistant Engineers (BS-17) in Works and Services Department, Government of Sindh. The petitioners have challenged the notification issued on 17.12.2013 by the Secretary to Government of Sindh, Works and Services Department whereby both the petitioners were transferred. The Respondent No. 3 was transferred and posted as Assistant Engineer, Provincial Highways Sub-Division, Matli while the Petitioner No. 1 was posted as Assistant Engineer Building Sub-Division, Tando Adam and Jam Nawaz Ali against on existing vacancy with immediate effect and the Petitioner No. 2 was posted as Assistant Engineer Highways, Sub-Division, Hyderabad.

2. The learned counsel for the petitioners argued that the Respondents No. 1 & 2 without any lawful or administrative justification, transferred the petitioners and according to learned counsel, the Petitioner No. 1 was transferred and posted at different places at least 3 times within a short span of time while the Petitioner No. 2 was transferred and posted at least nine times within a short span of time at different places. He argued that this action of the respondents is violative of Articles 4, 9, 14, 25 & 27 of Constitution of Pakistan. It was further argued that the transfer and posting of the petitioners was also against the standing directives of the Chief Minister who imposed the ban on all kinds of transfer and posting of the officials who have not completed minimum tenure of their service. It was further averred that the impugned notification of transfer is also in violation of rules, instructions and departmental practice. He further argued that the transfer of the civil servants will amount to negation of public interest and social justice. In support of his arguments, he referred to the judgment of hon'ble Supreme Court reported in PLD 2013 S.C. 195 (Syed Mahmood Akhtar Naqvi v. Federation of Pakistan & others) commonly known as Anita Turab case. In the above judgment while dilating upon the transfer of civil servant the hon'ble Supreme Court has held as under:

"13. Tenure, appointment, promotion and posting/transfer are of utmost importance in the civil service. If these are made on merit in accordance with definite rules, instructions etc. the same will rightly be considered and treated as part of the terms and conditions of service of a civil servant. If, however, rules and instructions are deviated from and as a result merit is discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident the civil service will not remain independent or efficient. It is necessary once again, to hark back to the considerations set out in the speech of Quaid-i-Azam and the eternal wisdom reflected in the Epistle of Hazrat Ali, may Allah be pleased with him, cited at the start of this opinion. It is also relevant to note that the principles of good governance are already envisioned in the Constitution and are also encoded in statutes such as the Civil Servants Act, 1973, the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and other rules made under the aforesaid Act and in regulations and instructions given in the Civil Establishment Code (Estacode). It is, however, apparent from precedent and civil service matters coming up before Service Tribunals and this Court that problems/difficulties arise for civil servants when the rules of good governance so encoded are breached and the reason for such breach appears to be abuse of discretion. We are aware that matters relating to tenure etc. cannot be put in a strait-jacket and that there is to be an element of flexibility. A balance between the competing pulls, of discretion and rule based decision making is a fine one where perception of fairness and even handed treatment is of utmost importance. It is for this reason that transparency in decisions relating to tenure etc. are required to be entrenched and cemented to assure the quality, effectiveness and morale of the civil service. Since executive decisions generally are subject to judicial review, the assurance of transparency is itself likely to eliminate decision making based on considerations other than merit."

1. On the other hand, Mr. Abdul Fattah Malik, learned counsel for the Respondent No. 3 argued that the transfer and posting of civil servants pertains to the terms and conditions of the service hence, the jurisdiction of this Court is barred under Article 212 of the Constitution of Pakistan, 1973. He further argued that the transfer and posting is prerogative of the Government, which cannot be interfered with under the Constitutional Jurisdiction. He also referred to Section 10 of the Sindh Civil Servants Act, 1973 and argued that according to this section the petitioners are liable to be served within or outside the province and they cannot raise objections against the transfer which is one of the basic conditions of the terms and conditions of their employment. It was further averred that all the allegations mentioned in the petition are false. Transfer and posting order is bona fide and issued in the public interest without any ill will or malice. He further argued that the Respondent No. 3 has already assumed the charge and if this petition is not dismissed or the interim orders are not recalled the Respondent No. 3 will be seriously prejudiced and work will be hampered. In support of his arguments, he referred to, the following case law:--

(1) 1998 SCMR 2129 (Asadullah Rashid v. Haji Muhammad Muneer & others). Civil service. Constitutional petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction in view of Article 212 of the Constitution of Pakistan. Orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result of baring provision of Article 212 of the Constitution. High Court, before taking any decision regarding admission of a Constitutional petition and/or passing order granting interim relief will first decide the question of its jurisdiction in view of Article 212 of the Constitution and in the light of the judgments of Supreme Court on the point involved.

(2) 1997 SCMR 169 (Ayyaz Anjum v. Govt. of Punjab and others) Civil servant. Transfer. High Court suspended order of transfer while admitting Constitutional Petition of civil servant. Validity. Matter relating to posting and transfer of civil servant related to terms and conditions of his service. Disputes about such matters would fall within exclusive jurisdiction of appropriate Service Tribunal. Jurisdiction of High Court was barred in such matters by Article 212(2) of the Constitution. Petition for leave to appeal was converted into appeal and impugned order of High Court was set aside. High Court was required to first determine question of its jurisdiction before making any stay order in such matter.

(3) PLD 1994 S.C. 539 (Muhammad Anis & others v. Abdul Haseeb & others). Section 4(d) Civil Servants Act (LXXI of 1973). Section 9 Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rule 8 and 8-A. Promotion. Eligibility and fitness of civil servant. Term "eligibility" and "fitness". Connotation. Question of eligibility is different than question of fitness for promotion. Question of eligibility relates primarily to the terms and conditions of the service and their applicability to the civil servant concerned and, therefore, Service Tribunal has jurisdiction in the matter. Question of fitness is a subjective evaluation on the basis of objective criteria when substitution for an opinion of the competent authority is not possible by that of Service Tribunal or of a Court, and therefore, Service Tribunal has no jurisdiction on the question of fitness.

(4) 1992 SCMR 365 (Imam Bakhsh & others v. Deputy Commissioner, Layyah and others). Section 2(2) Punjab Service Tribunals Act (IX of 1974), Section 4. Constitution of Pakistan (1973), Article 212. Question relating to eligibility/ineligibility of civil servant for being considered for promotion. Jurisdiction. Where question directly in issue was specific rule making civil servant eligible/ineligible for being considered for promotion or for excluding him from consideration for promotion, such question would squarely fall within exclusive jurisdiction of Service Tribunal. High Court having no jurisdiction in the matter its judgment was without jurisdiction find was recalled.

(5) 1990 SCMR 999 (Rana Muhammad Sarwar v. Government of Punjab & another). Article 212(3). Abolition of post. Civil servant filing constitutional petition in High Court against abolition of post. High Court refused to entertain the petition by observing that civil servant should approach the Service Tribunal to establish his right. Question raised in petition for leave to appeal was that action Authority in abolishing the post was mala fide with a view to deprive the civil servant of his post, emoluments and his status and thus, it was more appropriately a case entertainable by the High Court in constitutional jurisdiction and not one such could be taken to the Service Tribunal. Held, relief sought for by the petitioner related to the terms and conditions of employment. Question of abolition of post might be within the exclusive competence of a particular authority but if it was a violation of the terms and conditions of employment. Service Tribunal, has exclusive jurisdiction to deal with the terms and conditions and where reliefs claimed by the civil servant related to terms and conditions of employment, Service Tribunal and not the High Court was the proper forum to examine the same.

(6) 2007 SCMR 54 (Peer Muhammad v. Government of Balouchistan & others). Section 10. Constitution of Pakistan (1973), Articles 199 and 212 Constitutional jurisdiction of High Court under Article 199 of the Constitution. Scope. Posting and transfers. Terms and conditions of service. Jurisdiction of High Court. Scope. Question of posting of a government servant squarely falls within the jurisdictional domain of competent authority, subject to law and rules made therefor. Question of posting/transfer relates to terms and conditions of a government servant, Service Tribunal, therefore, has the exclusive jurisdiction to dilate upon and decide such matters. Constitutional jurisdiction of High Court cannot be invoked to get such controversies resolved.

1. The learned AAG adopted the arguments of the learned counsel for the Respondent No. 3.

2. Heard the arguments. The Chapter II of Sindh Civil Servant Act, 1973 provides the terms and conditions of civil service. It is also an admitted fact that both the petitioners are civil servants and their terms and conditions of services are governed under the Sindh Civil Servants Act, 1973. Section 10 of the aforesaid Act pertains to the posting and transfer which unequivocally provides that every civil servant shall be liable to serve anywhere within or outside the province on any post under Government, Federal Government, or any Provincial Government or local authority or corporation or body set up or established by any such Government. Though the petitioners have claimed that the posting and transfer orders of the petitioners is based on ill will or mala fide intention or even he has argued that the petitioners have become a rolling stone but while passing any order for upsetting the transfer and posting, it is necessary for this Court to adjudicate and determine the question of maintainability and assumption of powers despite specific bar contained under Article 212 of the Constitution. Though under Article 199, the scope of powers conferred upon this Court is wide enough, but at the same time powers to entertain the service matters relating to the terms and conditions of service is barred under Article 212 in which specific and appropriate remedy has already been provided under the Sindh Service Tribunal Act. While constituting the Administrative Court or Tribunal, it is clearly mentioned under Article 212 that legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals for the matters relating to exercise of exclusive jurisdiction in respect of matters relating to the terms and conditions of persons. It is further provided in Sub-Article (2) that where any Tribunal is established, no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends. Since equally efficacious remedy is provided to the civil servants under Sindh Service Tribunal Act to invoke the jurisdiction of Service Tribunal, therefore, this constitutional petition is not maintainable.

3. Learned counsel for the petitioner referred to the case of Anita Turab (Supra) in which the hon'ble Supreme Court took the cognizance under Article 184 of the Constitution and held that tenure, appointment, promotion and posting/transfer are of utmost importance in the civil service, and if the same were made on merit in accordance with definite rules, instructions etc., they would rightly be considered and treated as part of the terms and conditions of service of a civil servant; however, where rules and instructions were deviated from and as a result merit was discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident that the civil service would not remain independent or efficient. Let us first clarify that Anita Turab case in fact pertains to the tenure post which is not the case of the present petitioners. It is also not a case of the petitioners that if they will invoke the jurisdiction of the Service Tribunal, they would not be able to cite Anita Turab case before the Tribunal which is a competent forum to deal with the case relating to the terms and conditions of the civil service.

4. The cumulative effect of the dictums laid down by the hon'ble Supreme Court in the cases of Asadullah Rashid, Ayyaz Anjum, Muhammad Anis, Imam Bakhsh, Rana Muhammad Sarwar and Peer Muhammad (supra) made quite visible that the petition under Article 199 is not maintainable in relation to any matter connected with the terms and conditions of service and in respect whereof the Service Tribunal has exclusive jurisdiction, even it was held that the High Court before taking any decision regarding the admission of constitutional petition and or passing order granting interim relief will first decide the question of its jurisdiction in view of Article 212 of the Constitution. The matters relating to posting and transfer of civil servant relating to terms and conditions of his service and such dispute will fall within the exclusive jurisdiction of Service Tribunal. Question of posting of Government Servant is squarely fall within the jurisdictional domain of competent authority, Service Tribunal therefore, it has the exclusive jurisdiction to decide such matters. The apex Court has further held that the orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result of bar contained under Article 212 of the Constitution. Recently, the hon'ble Supreme Court has passed the similar order on 03.1.2014 in Civil Petition No. 345-K of 2013. The crux of the order is that while exercising jurisdiction by this Court under C.P.C. or even in the Constitution petition, the provision of Article 212 of the Constitution cannot be overlooked which bars the jurisdiction.

5. We had dismissed, this petition in limine vide our short order dated 20.1.2014. Above are the reasons of our short order.

(R.A.) Petition dismissed

PLJ 2014 Karachi 304 (DB)

Present: Ghulam Sarwar Korai & Salahuddin Panhwar, JJ.

WAQAR AHMED and another--Petitioners

versus

CHAIRMAN, NAB, ISLAMABAD and another--Respondents

C.P. Nos. D-3646 & D-3779 of 2012, decided on 6.3.2014.

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

----S. 496--Scope--Section-496 deals with matter (s), where any person other than a person accused of a non-bailable offence, is arrested by an officer incharge of a police-station or appears or is brought before a Court--Such provision insists release of such person on taking bail. [P. 308] A

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

----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 324 & 302--Subsequently S. 302,, PPC was added--Scope of bail--Releasing of accused or admission to bail will not exempt such person from seeking bail in offence added subsequently--Validity--If an FIR lodged for an offence under Section 324, PPC and bail was granted but at later stage injured succumbs to injuries as such Section 302, PPC shall come into play--In such eventuality it would not be justified to let person continue on bail because he was never admitted to bail for offence u/s 302, PPC--However it would not be justified to commit him to custody straightaway but what law of propriety would demand is that such person be not deprived of his liberty without providing him an opportunity of hearing by serving him with such show-cause notice by Court. [P. 309] B

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

----S. 498-A--Scope of--To move or seek for bail person must be arrested or against whom a case should stand registered because bail is to be granted in a case only which position stands further clear from provision of Section 498-A of Cr.P.C. [P. 309] C

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

----Ss. 497 & 498--Effctiveness and continuity of an order--Thus if both parts of Section 498-A of Code are read together it leaves nothing ambiguous that it is case wherein one is released on or admitted to bail under Sections 497 and 498 of Cr.P.C. which order shall be effective for that case only so specified in order or direction--Object of first part of provision seems to be nothing but that since release of a person under Section 497 or his admission to bail under Section 498 Cr.PC requires one to show his entitlement for release or admission on bail which may either be further enquiry',case not falling within prohibitory clause', or malafide or ulterior motives on part of police and complainant party--Such grounds shall require a reference to case. [P. 310] D & E

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

----S. 498-A--Scope of--Purpose and intention--Release or admission to bail--Words and phrases--Charged for an offence triable by superior Court nor a Court of Sessions can competently release an accused of offence triable by other Court--An order of release on bail or admission to bail shall be effective only in respect of case that so stands registered against him and is specified in order or direction. [P. 311] F

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

----S. 500--Discharge from custody--Since it is bond forfeiture whereof results in proceeding for recovery of penalty from surety, therefore, importance and object of `bond' should always be given its due weight by Court (s). [P. 312] G

Bail--

----Scope of--Effectiveness of bail grant by special Court was not prohibited--Validity--Jurisdiction to consider question of effectiveness of bail granted by ordinary Court by Special Court was not prohibited but it was held that only on taking cognizance of offence Special Court would be competent to pass such order and not otherwise--High Court also agree with such legal position because till taking of cognizance by a special Court order (s) passed by Court trying such offence shall continue holding field and Special Court shall not be legally justified to pass any order in respect of such a matter on which cognizance is not taken. [P. 312] H

National Accountability Ordinance, 1999--

----S. 9(6)--Criminal Procedure Code, (V of 1898), S. 497--Scope of bail--Bail in NAB matters cannot be granted--Validity--Bail in NAB matters cannot be granted under Section 9(6) NAB, but it is settled proposition of law that in cases of NAB, High Court can grant bail in writ jurisdiction. [P. 313] I

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

----S. 497(2)--Bail--Quantum of sentence--Sentence falling with prohibitory clause of S. 497, Cr.P.C.--Quantum of sentence, is yet to be determined by trial Court, therefore, on that account instant matter falls within scope of further enquiry as contemplated in Section 497(2), Cr.P.C. [P. 313] J

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

----S. 498--Bail before arrest, granted--Scope of--After transfer of case before accountability Court, approached High Court--Not claimed regarding misuse of concession of bail--Validity--Petitioners are entitled for bail--Consequently interim bail already granted is hereby confirmed on same terms arid conditions. [P. 314] K

Mr.Shaukat Hayat, Advocate for Petitioners (in both appeals).

Mr.Noor Muhammad Dayo, ADPG ANB alongwith Mr. Zamir Hussain, Senior Prosecutor, NAB for Respondents (in C.P. No. D-3646/2012).

Mr. Noor Muhammad Dayo, ADPG, NAB Advocate & Mr. Waleed Ansari, D.A.G. (in C.P. No. D-3779/2012).

Dates of hearing: 27.1, 6.2 & 6.3.2014.

Order

Salahuddin Panhwar, J.--Through captioned petitions, petitioners pray as under:--

(a) Declare that the respondents as well as the trial Court has no jurisdiction to take the petitioners in custody who were already on bail from the trial Court vide order dated 13.05.2010.

(b) Declare that the petitioners shall continue to remain on bail vide order of the trial Court dated 13.05.2010 and their bail order and bail bond is still intact, with no legal effect after transfer of the case of the petitioner from the Court of Additional Sessions Judge-III (South) Karachi to the Accountability Court No. I vide order dated 28.07.2012;

(c) Direct the trial Court on transfer of the case from ADJ-III (South) Karachi to Accountability Court vide order dated 28.07.2012, may not take into custody by treating their existing bail cancelled/non-existence automatically on transfer of the case from one Court to another Court.

(d) Grant interim bail/protection to the petitioners, not to arrest the petitioner without getting necessary permission from this Honourable Court in pending case before Accountability Court No. I.

1. Precisely, relevant facts as set out in above petitions are that Petitioner No. 1 is Director, Petitioner No. 2, and petitioner in CP No. D 3779/2012 are sharers of M/s. Capital One Equities Limited respectively. The Security and Exchange Commission of Pakistan filed complaint under Section 24(2)/28(2) of CD Act 1997 read with Section 25 of the Security and Exchange Ordinance 1969 under Sections 409, 467, 468, 471 and 474 read with Section 34/109, PPC. Enquiry was commenced, during enquiry the bank demanded margin of Rs.67.21 million to make up shortfall in drawing power; the accused company failed to make payment as such the bank exercised its pledge, called option and sold clients' shares pledged and adjusted amount of more than Rs.204 million and likewise the KSE sold clients' share value of more than Rs.77 million. Thereafter trial Court took cognizance and issued warrants of accused persons to serve their attendance with surety of Rs.5 lacs. Pursuant to that petitioners surrendered before the trial Court and furnished surety amount. Thereafter instant case was transferred under Section 16-A sub-section (a) of NAB Ordinance 1999 to the Accountability Court; transfer was made without opportunity of hearing to the petitioners. Thus, The trial Judge/Accountability Court is bent upon to arrest and remand the custody of the above petitioners to jail. Since there is no provision of bail in NAB Ordinance therefore the petitioners have no alternate remedy except to file this petition.

2. Learned counsels for the petitioners has, inter-alia, contended that petitioners were granted bail by the Additional Sessions Judge, Karachi, therefore subsequent transfer will not amount to cancel such bail and legally will remain intact; subsequent Court is not competent to treat it cancelled, and remand them in custody. In support of his contention he relied upon case of Abdul Qudoos vs. the State (1998 PCrLJ page 948).

3. Conversely, learned Special Prosecutor NAB has argued that Accountability Court is competent to remand them in custody as jurisdiction and powers of; both Courts are entirely different and moreover the quantum of punishment also varies.

4. Heard counsel, perused the record.

5. Since controversy in instant case relates to a legal proposition with regard to legality and continuity of a bail order(s) granted by one Court and subsequently after transfer of such cases before other Court(s) of different jurisdiction, therefore, to properly understand this legal issue, we feel it proper to first have a glance to the relevant Chapter of the Criminal Procedure Code which is Chapter-XXXIX with title `OF BAIL'. The Chapter starts from Section 496 and lasts at Section 502 of the Code. There can be no denial to the legal position that every section has got its own importance but to have the meaning and objective whereof clear it is always necessary to read such section with reference to subsequent section (s) because subsequent sections always explain the limitations of earlier one.

Section-496 deals with matter (s), where any person other than a person accused of a non-bailable offence, is arrested by an officer incharge of a police-station or appears or is brought before a Court. Such provision insists release of such person on taking bail.

The Section 497 of the Code is of much importance therefore, it would be proper to reproduce the same which is so reproduced as under:--

"497. When bail may be taken in cases of non-bailable offences.--(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an offence in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of (an offence punishable with death or (imprisonment for life or imprisonment for ten years):

(Provided that the Court may direct that any person under the age of sixteen years (.......) or any sick or infirm person accused of such an offence be released van bail:)

(Provided further that a woman accused of such an offence shall be released on bail, as if the offence is bailable, notwithstanding anything contained in Schedule-II to this Code or any other law for the time being in force:

Provided further that a woman may not be so released if there appear reasonable grounds for believing that she has been guilty of an offence relating to terrorism, financial corruption and murder and such offence is punishable with death or imprisonment for life or imprisonment for ten years, unless having regard to the facts and circumstances of the case, the Court directs that she may be released on bail;"

This provision is prohibitory in its nature, however, subsequent sub-section (s) vests such officer or the Court, as the case may be, to order for release of such a person on bail subject to establishing the conditions, so provided under these sub-sections. However, from the reading of the above it becomes quite clear that at the time of release of an accused the officer in charge of a police-station or the Court is required to consider an offence and its punishment, according to the evidence collected by prosecution.

1. The deliberate use of the word offence in the above provision makes it clear that if after lodgment of the FIR, at any subsequent stage, the offence is added or the Court takes the cognizance of an offence then the release of the accused or his admission to bail, will not exempt such person from seeking bail in such offence added subsequently. We may add here that if an FIR lodged for an offence under Section 324, PPC and bail was granted but at later stage injured succumbs to injuries as such Section 302, PPC shall come into play. In such eventuality it would not be justified to let the person continue on bail because he was never admitted to bail for offence u/S. 302, PPC. However it would not be justified to commit him to custody straightaway but what the law of propriety would demand is that such person be not deprived of his liberty without providing him an opportunity of hearing by serving him with such show-cause notice by the Court.

2. Further, the reading of the said provision shows that the legislature has used the words officer in charge of a police station' andthe Court', therefore, it can safely be concluded that first it is the officer incharge of a police station where the case is lodged/ registered and then it is the Court where such person is brought/ produced or tried which have powers, jurisdiction and authority to release such a person on bail. The position, being so, makes it obvious that these words are to be given their due meaning as and when appearing for such purpose or discussion. It would be advantageous to add here that the word police station' andofficer-in-charge of a police-station' are defined, in Section 4 of the Criminal Procedure Code but not the word `Court'. However, the office incharge of a police station and the Court shall be given the meaning as defined by the Special statute itself. It is important to make it clear here that the word Court will lack its true meaning if it is not read as Court of competent jurisdiction because a Court, in ordinary meaning, is a place where justice is done or dispensed.

3. Let's proceed further to have a proper answer to the above proposition. It, however, requires no explanation that to move or seek for bail the person must be arrested or against whom a case should stand registered because the bail is to be granted in a case only which position stands further clear from the provision of Section 498-A of the Code, which for convenience is reproduced hereunder:--

498-A. No bail to be granted to a person not in custody, in Court or against whom no case is registered etc.--Nothing in Section 497 or Section 498 shall be deemed to require or authorize a Court to release on bail, or to direct to be admitted to bail any person who is not in custody or is not present in Court or against whom no case stands registered for the time being and an order for the release of a person on bail, or direction that a person be admitted of bail shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction.

Simple reading of the above provision shows that it restricts for exercising the powers under Section 497 or 498 in following circumstances:--

(i) no bail to be granted to a person, who is not in custody;

(ii) no bail to be granted to a person who is not present;

(iii) no bail to be granted to a person against whom no case is registered for the time being;

The second part of the above provision explains effectiveness and continuity of an order, so passed under Sections 497 and 498 of the Code whereby the legislature confined the effectiveness and continuity to:

`an order for the release of a person on bail, or direction that a person be admitted to bail shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction'

Thus if both the parts of the Section 498-A of the Code are read together it leaves nothing ambiguous that it is the case wherein one is released on or admitted to bail under Section (s) 497 and 498 of the Code which order shall be effective for that case only so specified in the order or direction.

1. The object of the first part of the above provision seems to be nothing but that since release of a person under Section 497 or his admission to bail under Section 498 Cr.PC requires one to show his entitlement for release or admission on bail which may either be further enquiry',case not falling within prohibitory clause', or mala fide or ulterior motives on part of police and complainant party, as the case may be. Such grounds shall require a reference to the case.

However, the object of the second part of the above provision can be nothing but that such release or admission to bail is confined to that particular case only and it shall not be a license for such person (released on or admitted to bail) to seek an exception to his arrest or appearance, so required by the authorized and legal person for purpose, of investigation of other case because the law demands that every charge/offence should have its own fate which is only possible after two phases i.e investigation' andtrial by a competent Court of law'.

The phrase `specified in the order or direction' so used in the Section 498-A of the Code also requires to be given its due meaning, purpose and intention. It cannot legally sustain that a Court of inferior jurisdiction shall release the accused, charged for an offence triable by superior Court nor a Court of Sessions can competently release an accused of offence triable by the other Court. It can be concluded that an order of release on bail or admission to bail shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction.

1. The position, being so, becomes quite obvious from reading of the Section 500 of the Code, which reads as under:--

Section 500. Discharge from custody.--(1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released; and, when he is in jail, the Court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the order shall release him.

(2) Nothing in this section, Section 496 or Section 497 shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed.

From the above reading we can safely respond to the proposition as follows:--

(i) the release is always for an offence;

(ii) the Court should be of competent jurisdiction with reference to such offence:

Provided on addition of section for offence of greater punishment or cognizance, if so, taken by the Court for such greater offence will require the Court to consider the matter afresh within provided parameter but after serving a notice upon such admitted to bail'

(iii) the release or admission on bail shall be effective only for that case, so stands registered against him and is specified in the order or direction;

(iv) the Court, receiving the case, should take the bond to its satisfaction or least should satisfy whether the bond, earlier executed, serves the purpose of `bond' as this will help in avoiding a plea of executor (surety) that he was not bound to produce accused before such Court hence no breach of bond was committed;

(v) Where only bond is executed, that Court will be competent to forfeit the bond and proceed against surety u/S. 514, Cr.P.C., if surety fails to produce accused without making reference to the Court, which granted bail;

(Embolding and underlining is provided for emphasis)

Here it is important to endorse that since it is the bond the forfeiture whereof results in proceeding for recovery of the penalty from the surety, therefore, the importance and object of `bond' should always be given its due weight by the Court (s). Reference can be made to the case of Hubdar Chandio vs. the State (1997 PCrLJ 1597).

1. Now let's test the case of "Abdul Qudoos vs State (1998 PCr.LJ 948)" relied by learned counsel for petitioners on above touchstone. Though that case is revolving upon the powers of Section 497(5) of the Code, however, the Para 7 whereof confirms the above view. For sake of convenience the relevant Para is reproduced hereunder:

"7. It is not disputed that only scheduled offences are triable by a Special Court upon submission of challan or complaint, as the case may be, and unless the case is not sent to the Special Court, the order of the nature curtailing the liberty of a person by Special Court under Section 497(5), Cr.P.C., interfering in the order passed by a Court other than Special Court would be coram non judice."

(Embolding and underlining is supplied far emphasis)

From underlined portion it is clear that even in said case the jurisdiction to consider the question of effectiveness of bail granted by ordinary Court by the Special Court was not prohibited but it was held that only on taking cognizance of the offence the Special Court would be competent to pass such order and not otherwise. We also agree with such legal position because till taking of cognizance by a special Court the order (s) passed by the Court trying such offence shall continue holding the field and the Special Court shall not be legally justified to pass any order in respect of such a matter on which cognizance is not taken.

1. Now, we revert to the merits of the case, in hand. From perusal of the record it is surfaced that the petitioner(s) were admitted to bail by the 3rd Additional Sessions Judge, South, Karachi; they continued appearing before the trial Court; later their case stood transferred to the Accountability Court No. 1, under Section 16-A of the National Accountability Ordinance, 1999. Per Section 16-A such transfer of a case from any Court of law or Tribunal shall be deemed to be a reference under Section 18 of the Ordinance. The position, being so, makes it patent that the cognizance has been taken by the Accountability Court No. 1 onto the matter and now matter is no more pending before Additional Sessions Court-III Karachi South, therefore, the bond, so executed by the petitioners, before the earlier Court of different jurisdiction, cannot be legally said to be intact, as per Section 500(2) of the Code and ceased to its effect, thus accused cannot claim that they are on bail, legally they have to approach for bail as fresh in accordance with law before the competent Court. However, judicial propriety demands that such Court on taking cognizance shall not be justified; to commit the petitioners to custody straight-away but is required to serve a show-cause notice upon the petitioners/accused.

2. Candidly NAB Ordinance does not provide provision of bail rather put embargo that bail in NAB matters cannot be granted under Section 9(6) NAB, but it is settled proposition of law that in cases of NAB, High Court can grant bail in writ jurisdiction as held in series of decisions by apex Court and thus said proposition falls within the scope of "stare decisis", meaning thereby, that to stand by decision and not disturb the undisturbed, this is understood to mean that Courts should generally abide by precedents and not disturb settled matters. Reference can be to the case of NAB v. Khalid Masood and another reported in (2005 SCMR page 1291), wherein it is held that High Court can always grant bail in appropriate cases in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, to any person/accused of an offence under the National Accountability' Ordinance, 1999, notwithstanding the bar contained in Section 9(6) of the said Ordinance; same view was followed from the case of Haji Ghulam Ali v. the State reported in (2003 SCMR 597), and the case of Abdul Aziz Niazi v. The State reported in (PLD 2003 SC 668).

3. It is matter of record that petitioners were initially granted bail by the Court of Additional Judge IV, South, Karachi, on merits, thereafter on jurisdiction point the matter has been transferred to the Accountability Court but record reflects that there is no new development in facts and circumstances of the case and they have not been alleged that they have committed further offence in addition to earlier. However on same facts, section of NAB Ordinance 1999, provides greater sentence falling within prohibitory clause of Section 497, Cr.P.C. Thus, according to the circumstances of this case, the quantum of sentence, is yet to be determined by the trial Court therefore, on this account instant matter falls within the scope of further enquiry as contemplated in Section 497(2), Cr.P.C.

4. Since, after transfer of the case, before accountability Court, petitioners approached this Court, whereby they were granted interim pre-arrest bail by order dated 17.10.2012 and 24.10.2012, Since then they are attending the trial Court (facing charge) regularly as well this Court, and prosecution has not claimed at any stage regarding misuse of concession of bail thus this aspect, alongwith merits can be taken as one of the circumstance favourable to the petitioners.

5. Keeping in view the given circumstances we are of the considered view the petitioners are entitled for bail. Consequently interim bail already granted by order(s) dated 17.10.2012 and 24.10.2012 is hereby confirmed on same terms arid conditions.

6. In view of above, above-captioned petitions are disposed of with listed application.

(R.A.) Petitions disposed of

PLJ 2014 Karachi 314 (DB)

Present: Ghulam Sarwar Korai & Salahuddin Panhwar, JJ.

Syed MUJAHID RASOOL & 2 others--Petitioners

versus

PROVINCE OF SINDH through Secretary Home Department, Karachi & 4 others--Respondents

C.P. No. D-291 of 2014, decided on 26.2.2014.

Electricity Act, 1910--

----S. 39--Constitution of Pakistan, 1973, Art. 199--Quashing of FIR--Consumer of electric company--Petitioners were committing theft while concealing wires hence FIR as well as detection bill were legal--Domain of investigation agency--Efficacious remedy to approach trial Court--Maintainability of Petition--Validity--Provision of Section 39 of Electricity Act, is a live provision hence resort thereof cannot be said to be such an illegality which warrants quashment thereof--Act itself has made an act of theft of energy' as an, offence and punishable, therefore, such proposition that FIR for an allegation oftheft of energy' cannot be legally entertained, is not sustainable under law, particularly where consumer' is one as defined by Section 2(c) of Electricity Act, 1910--Removing of an electricity connection is something different from an allegation oftheft of energy' both shall be required to go per their provided procedure by relevant law and rules--An allegation of theft of energy' is required to be investigated and determined--It is well settled principle of law thatrecovery of amount due on electricity consumed by accused during such period shall not absolve him from liability to conviction--It is settled principle of law investigation is pure domain of investigation agency and same cannot be interrupted unless extraordinary circumstances warrant same as held in case--Petition is devoid of merits and dismissed in-limine. [Pp. 317 & 318] A, B, C & D

Mr.Hussain Bakhsh Saryo, Advocate for Petitioners.

Mr. Rafiq Ahmed, Addl. A.G. for Respondents.

Mr.Malik Khushal Khan, Advocate for Respondents No. 3 and 5.

Date of hearing: 18.2.2014.

Order

Salahuddin Panhwar, J.--Through instant petition, petitioners have invoked constitutional jurisdiction of this Court whereby praying as under:

"to pass the order for quashment of FIR No. 5/2014, under Section 39 Electricity Act, registered at KESC/Defence Police Station, District South."

1. Relevant facts for disposal of this petition are that petitioners are consumers; of KESC (Electric Company) through Consumer No. LA862935, Meter TC06150 and Consumer NO.LA862936, Meter TC06151 in the name of Petitioner No. 1, Consumer No. LA862937, Meter TC06139 in the name of Petitioner No. 2 and Consumer No. AL 060060, Meter TD52371 in the name of S. Abdul Rehman at House No. 10-B, 2nd Street, Phase-I, DHA, Karachi and they are paying electricity bill month wise on regular basis. On 15.1.2014 petitioners received a notice regarding inspection of the meter; thereafter respondents without observing the formalities disconnected the electricity on the same date and on 17.1.2014 lodged an FIR No. 5/2014 under Section 39 of the Electric Act, at Defence/KESC Police Station. Thus Respondent No. 5 has acted against the law and has violated the Rules and procedure provided by the NEPRA Consumer Manual which is fully applicable upon the respondent company, relevant portion whereof is as under:--

Charging Procedure

(i) -----------------

(ii) -----------------

(iii) -----------------

(iv) Once confirm that the illegal abstraction is being done serve notice to the consumer informing him of the allegations and the findings and the requirement of a written reply from the consumer.

(v) Wait for seven working days for receipt of reply.

(vi) The reply to the notice shall be examined by the officer higher in grade, then the inspecting officer. If the reply is not convincing or if no reply is received or if the allegation as levied are proved, the inspecting officer with the approval of the next higher, officer will immediately serve a detection bill for unclaimed energy limited to the period of three billing months previous from the date of establishment of illegal abstraction.

(vii) The detection bill along with a disconnection notice for payment within seven days will be issued by the inspecting officer.

(viii) Upon payment of detection bill the tampered meter shall be replaced by the DISCO at the cost of consumer and no further action shall be taken by DISCO.

Next Higher Civil Court

Review Committee of DISCO headed by next Higher Officer in case.

In case the dispute remains unresolved even after exhaustive review, the DISCO (DISCO to insert its name) after getting approval of the Chief Executive Officer may lodged the FIR, the consumer may also approach a competent Court of law under the relevant provision of Electricity Act, 1910.

1. Learned, counsel for the petitioners while reiterating the above contentions, contended that according to the NEPRA Rules & Procedure as well as Consumer Manual, they were under obligation to follow the Rules, therefore FIR under Section 39 of the Electricity Act is liable to be quashed. In support of his contention he has relied upon 2004 PLC (CS) 1579; 2001 CLC 321 (Messrs Erum Heights Residents Welfare Association vs. KESC limited and others), 2013 MLD 1862 (Muhammad Imtiaz vs. Chief Executive MEPCO), PLD 2012 Lahore 751 (Haji Muhammad Latif vs. Chief Executive, GEPCO and others).

2. Conversely, learned counsel for Respondent Nos. 3 and 5 has argued that instant petition is not maintainable under the law as petitioner has efficacious remedy to approach the concerned trial Court; this is not an extraordinary case where this Court can interfere the investigation, which is the complete domain of the investigation agency; proper notice was served upon the petitioners and during examination it was found that, petitioners were committing theft while concealing wires hence FIR as well as detection bill are legal and in accordance with law.

3. Heard counsel, perused the record.

4. While perusal of above referred Rules, without going into dispute whether these are applicable in this case or not, it is patent that such Rules nowhere, repeal the application of the Electricity Act nor the same anywhere: declares that an FIR cannot be lodged in the matter of theft. Without dying into the procedure, we can safely say that the provision of the Section 39 of the Electricity Act is a live provision hence resort thereof cannot be said to be such an illegality which warrants quashment thereof. The Act itself has made an act of theft of energy' as an, offence and punishable, therefore, such proposition that FIR for an allegation oftheft of energy' cannot be legally entertained, is not sustainable under the law, particularly where the `consumer' is one as defined by Section 2(c) of Electricity Act, 1910 which reads as under:--

`(C) "Consumer' means any person who is supplied with energy by a licensee, or whose premises are for the time being connected for the purposes of a supply of energy with the works of a licensee'

It is not the case of the, petitioners that they are not the consumer of the respondents on the contrary they have categorically claimed to be consumer of KESE (respondents), thus needless to add here that one can claim rights and exceptions under that law which is applicable to his case only and not otherwise except those general principles which have universal applicability. Without prejudice to this, we may also add here that removing of an electricity connection is something different from an allegation of theft of energy' both shall be required to go per their provided procedure by the relevant law and rules. An allegation oftheft of energy' is required to be investigated and determined as per law because it is well settled principle of law that `recovery of amount due on electricity consumed by accused during such period shall not absolve him from liability to conviction'. The reference, if any, can well be made to the cases reported as PLJ 1986 Cr.C (Kar) 306 and 1986 PCr.LJ 1684. Further it is the duty of the investigation officer to examine the substance, and all ingredients with regard to theft committed by the petitioners within the spirit of Section 39 of the Electricity Act. It is settled principle of law investigation is the pure domain of the investigation agency and same cannot be interrupted unless extraordinary circumstances warrant the same as held in case of Ghulam Sarwar Zardari (2004 SCMR 624)

1. With regard to the case of Muhammad Shahnawaz (supra) referred by the learned counsel, it is pertinent to mention that same pertains to the civil jurisdiction and in that case one injunction application decided with the observation that same will not effect upon the fate of the main case, therefore circumstances of that case are not applicable in these proceedings in any manner as this case pertains to a criminal offence allegedly committed by the petitioners.

2. In view of above discussion and facts, instant petition is devoid of merits and dismissed in-limine, alongwith listed application.

(R.A.) Petition dismissed

PLJ 2014 Karachi 318 (DB)

Present: Muhammad Ali Mazhar & Sadiq Hussain Bhatti, JJ.

GHULAM MUHAMMAD--Petitioner

versus

PROVINCE OF SINDH through its Chief Secretary, Karachi & another--Respondents

Const. Petition No. D-613 of 2013, decided on 29.1.2014.

Hyderabad Development Authority Act--

----S. 7--Sindh Govt. Rules of Business, 1986--R. 35--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Post of Director General--Vested right--Repatriated to original position--Post of Director General H.D.A. cannot be cadre post--Validity--Period of interim orders, petitioner had already served as Director General, for more than three years and still he is claiming post of Director General, as a vested right notwithstanding that he is not eligible to hold a cadre post. [P. 326] A

M/s. Abrar Hassan, Usman Shaikh and Muhammad Iqbal Ch., Advocates for Petitioner.

Mr. Khalid Jawed Khan, A.G., Mr.Adnan Karim, AAG, Mr.Abdul Jalil Zubedi, AAG for Respondents.

Mr. Muhammad Nawaz Shaikh, Advocate for intervener Muhammad Iqbal Memon.

Mr. Nazir Ahmed Dhoon, Additional Secretary, Local Government Department, Government of Sindh.

Date of hearing: 28.11.2013

Order

Muhammad Ali Mazhar, J.--Through this Constitution petition, the petitioner has approached this Court for the following relief(s):--

"(a) Hold and declare that the petitioner was promoted to BPS-20 by the competent authority after satisfying codal formalities.

(b) Hold and declare that repeated transfers of the petitioner for one reason or other are illegal, violative of the dicta of apex Court with mala fide.

(c) Hold and declare that petitioner after, his last posting as Director General, Hyderabad Development Authority vide Notification dated 7.12.2012 cannot be transferred before completion of his normal tenure of incumbency.

(d) Restrain permanently the respondents from transferring the petitioner from the post of Director General, Hyderabad Development Authority, in violation of HDA Act and its statutory Rules and Regulations.

(e) Ad interim relief is also prayed.

(f) award any other relief as deemed just and proper in the circumstances of the case".

1. The brief facts of the case are that the petitioner was awarded promotion to BS-18 and then to BS-19 by the competent authority. After rendering the requisite services, the petitioner was further promoted to BS-20. The Hyderabad Development Authority has been established under the Hyderabad Development Act, 1976. After the promulgation of Sindh Local Government Ordinance, 2001, Hyderabad Development Authority was placed under the administration of Zilla Nazim. After repealing of Sindh Local Government Ordinance. 2001, the petitioner who was serving in BS-19 and being an officer of Hyderabad Development Authority posted as Director General, Hyderabad Development Authority on OPS (own pay scale) basis. However, after promotion of the petitioner in BS-20 all the requirements of the said post were complied with.

2. The case of the petitioner at present is that on 7.12.2012, two Notifications were issued i.e one notification was issued which allowed the petitioner to continue as Director General, (BS-20) Hyderabad Development Authority till further orders and but on the same day, another Notification was issued whereby the posting of the petitioner was declared illegal and he was directed to report to his parent department, while Syed Fazil Shah Kazmi was allowed to continue as Director General (BS-20) Hyderabad Development Authority.

3. The learned counsel for the petitioner argued that the petitioner is performing his duties as Director General, Hyderabad Development Authority which is not a tenure post in terms of Hyderabad Development Authority Act, 1976, however, he referred to the Rule 3 (iii) of the Sindh Government Rules of Business, 1986, which pertains to the different Departments and their businesses. In this Rule it is provided that there shall be attached departments as shown in Column 3 of Schedule-I which pertains to the Local Government Housing and Town Planning Department and according to Column 3, the attached department is Town Planning Department while according to Column 4, Director Town Planning Department, Director General, Rural Development Department and Chief Engineer, Public Health Engineering Department may be the head of the attached departments. He argued that Hyderabad Development Authority is the attached department of Local Government Department and the petitioner being Director General of the same is the head of the department, notwithstanding the fact that Hyderabad Development Authority was established under the statute. He further argued that according to Schedule-IX attached with the aforesaid Rules of Business, normal period of tenure of head of attached department is for five years. He further referred to the Rule 35 which is pertaining to the transfer and posting specified in Column 2 of Schedule-IX.

4. The learned counsel also pointed out various postings of the petitioner in chronological order, which shows that, the petitioner from 18.3.2010 to 22.2.2011 remained as Director General of Hyderabad Development Authority on OPS basis. Thereafter, he was promoted to the post of C.F.O. in BS-20. However, on 25.7.2012, one Qurban Khoso (BS-19) Officer was posted as Director General, Hyderabad Development Authority on OPS basis and the petitioner was replaced. Again, the petitioner was restored and the earlier notification was suspended. Then one Fazil Shah (BS-19) was posted on OPS basis thereafter, again the petitioner was restored to the position of Director General, Hyderabad Development Authority but again Fazil Shah was restored to the position of Director General, Hyderabad Development Authority vide Notification dated 7.12.2012, which was again, cancelled and the petitioner was again posted as Director General, Hyderabad Development Authority.

5. On 22.2.2013, another learned division bench, of this Court directed the respondent to maintain the status quo, which order is still in field, but during the status quo order vide Notification dated 6.9.2013 one Iqbal Memon was posted as Director General, Hyderabad Development Authority and the petitioner was transferred and directed to report to Local Government Department. Hence the petitioner filed Misc. Applications Nos.23808 and 23811 of 2013 along with urgent application. One for trying the alleged contemnors and another application for suspension of the Notification dated 6.9.2013. Both the applications were placed before the division bench of this Court on 9.9.2013 on which date while issuing the notice, the Court observed that the interim orders passed on 22.2.2013 shall remain continue. It was further averred that the petitioner was never allowed to continue his tenure and he was interrupted at least three times, hence, whatever the period he served cannot be construed as a normal tenure. It was further argued that the petitioner was politically victimized and the transfer of the petitioner was not made due to any exigency of service. He further argued that number of FIRs were also lodged against the petitioner and he was constrained to file different petitions in this Court. In support of his argument, the learned counsel for the petitioner relied upon the following case law:--

(1) PLD 1995 SC 530 (Zahid Akhter v. Government of Punjab & others). The hon'ble Supreme Court while dilating upon the Punjab Government Rules of Business, 1974 held that the normal period of posting of Government Servant at a station, according to the above referred policy decision of the Government, is 3 years, which has to be followed in the ordinary circumstances, unless for reasons of exigencies of services mentioned in the aforesaid policy of Government, a transfer before expiry of 3 years period becomes necessary in the opinion of competent authority. The transfer orders of Government servant concerned, therefore, could neither be justified on the plane of policy directive of Government nor they were sustainable on the language of Rule 21(2) read with Schedule V of the Rules of Business, 1974.

(2) PLD 2013 S.C. 195 (Syed Mahmood Akhtar Naqvi v. Federation of Pakistan & others). (Anita Turab case). In which it was held that whenever there were statutory provisions or rules or regulations which governed the matter of appointments of civil servants, the same must be followed, honestly and scrupulously. Even where there were no explicit rules governing the appointment process and appointments were to be made in the exercise of discretionary powers, such discretion must be employed in a structured, transparent and reasonable manner and in the public interest. Appointing authorities could not be allowed to exercise discretion at their whims or in an arbitrary manner; rather they were bound to act fairly, evently and justly and their exercise of power was judicially reviewable. Removal and dismissal of civil servants from service was not left to anyone's whims and caprice and it was governed by rules and regulations. When the ordinary tenure for a posting had been specified in the law or rules made thereunder, such tenure must be respected and could not be varied, except for compelling reasons, which should be recorded in writing and were judicially reviewable. Transfers of civil servants by political figures which were capricious and were based on consideration not in the public interest were not legally sustainable.

(3) He further referred to an unreported judgment passed by hon'ble Supreme Court in Civil Appeal No. 39/2010 & others in which the hon'ble Supreme Court for the purposes of deciding the issue of maintainability of petition discussed the cases of various public sector projects/Government Organizations whether under Article 199 they are the persons discharging functions in connection with affairs of Federation or a Province within the meaning of Article 199 of the Constitution and amenable to writ jurisdiction of the High Court.

1. On the contrary, the learned A.G. argued that the petitioner was appointed on 18.3.2010 as Director General, Hyderabad Development Authority and continuously remained Director General up to 25.7.2012 i.e. for two years. Qurban Khoso who was appointed Director General, Hyderabad Development Authority who remained in the office till 10.8.2012 i.e. only for 15 days and later on Fazil Shah was appointed on 16.10.2012 who remained D.G. H.D.A up to 30.11.2012 which is only for one month and 14 days, thereafter, the petitioner was restored on 30.11.2012 and still he is continuing as Director General, Hyderabad Development Authority. The amassed effect of the tenure of the petitioner being Director General, Hyderabad Development Authority is more than three and half years and under the attire of interim orders, he is continuously enjoying this post as a vested right. The learned A.G argued one more crucial point that the post of Director General. Hyderabad Development Authority is a cadre post and the petitioner is required to be repatriated to his original position in view of the latest judgment of hon'ble Supreme Court passed in contempt proceedings initiated against the Chief Secretary, Government of Sindh and others, which is reported in 2013 SCMR 1752. He specifically referred to Paragraph 126 of the judgment which is reproduced as under:--

"126. From the above discussion, the aforesaid legislative instruments on the issue of absorption are liable to be struck down being violative of constitutional provisions referred to hereinabove, therefore, we hold as under:--

(i) That the Sindh Government can only appoint a person by absorption by resorting to Rule 9-A the Rules of 1974, (ii) Sindh Government cannot order absorption of an employee who is a non-civil servant. however, an employee of an autonomous body can be absorbed in Sindh Government subject to conditions laid, down under Rule 9-A of the Rules of 1974.

(iii) Sindh Government cannot absorb a civil servant of non-cadre post to any cadre which is meant for the officers who are recruited through competitive process;

(iv) Any back dated seniority cannot be granted to any absorbee and his inter-se seniority, on absorption in the cadre shall be maintained at the bottom as provided under the Rules regulating the seniority.

(v) No civil servant of a non-cadre post can be transferred out of cadre to be observed to a cadre post which is meant for recruitment through competitive process. A civil servant can be transferred out of cadre to any other department of the Government subject to the restrictions contained under Rule 9(1) of the Rules of 1974.

(vi) The legislature cannot enlarge the definition of "civil servant" by appointing a non-civil servant through transfer on the basis of absorption conferring him status of civil servant pursuant to the impugned legislation which is violative of the scheme of civil service law as provided under Articles 240 and 242 of the Constitution."

1. In the rebuttal, the learned counsel for the petitioner argued that the judgment of hon'ble Supreme Court (supra) is not applicable to the petitioner's case, who is governed under the Hyderabad Development Authority Act, 1976. He farther argued that under Section 7 of the aforesaid Act it is clearly provided that the Director General shall be appointed by Government on such terms and conditions as Government may determine. After referring to Section 7 of the aforesaid Act, the learned counsel further averred that there is nothing mentioned under Section 7 that the post of Director General, Hyderabad Development Authority is a cadre post and he took the stance that the petitioner was initially appointed as Accounts Officer and earlier to the appointment of Director General, he was C.F.O (chief financial officer). It was further admitted in past, the petitioner was also posted as Director General. H.D.A on O.P.S basis.

2. The pros and cons lead us to a conclusion that no doubt, under Section 7 of Hyderabad Development Authority Act, it is clearly provided that Director General shall be appointed by Government on such terms and conditions as Government may determine which does not mean in any way that the post of Director General, H.D.A cannot be a "cadre post". The composition of Authority is provided under Section 4 of the same Act which includes its Chairman, Director General and other Members. Under Section 70 it is further provided that subject to the provisions of the Act and the rules, the Authority may by notification in official gazette and with the previous approval in writing of Government, make regulations for carrying out the purpose of the Act and in particular and without, prejudice to the generality of the power, such regulations may provide including terms and conditions of the service of the officers and staff of the Authority and Agency. According to Hyderabad Development Authority Employees (General conditions of Service) Regulations 1988, the cadre means the strength of service or a part of service sanctioned as separate unit and competent authority means the Director General or any officer authorized by the Director General. Under these regulations the head of the department would be the officer declared or designated as such by the Director General and the schedule of establishment means the schedule of establishment prepared and approved under the Hyderabad Development Authority (Appointment, Promotion and Transfer) Regulation, 1988. Under these regulations the appointing authority means the authority including the Director General and any other officer as may be authorized by the authority to act as such in respect of any post or class of posts.

3. The crux of the matter is that the petitioner' has challenged his alleged frequent transfers from the post of Director General, Hyderabad Development Authority though at present he is in BS-20. It is an admitted fact that the petitioner was initially appointed as Accounts Officer and before the appointment as Director General he was C.F.O. and it is also an admitted fact that when he was in Grade-19, he had also served as Director General on O.P.S. basis. The learned A.G. argued that the post of Director General, Hyderabad Development Authority is a cadre post and, he has also filed revised schedule of cadre posts filled by officers of APUG/DMG and Provincial Services issued by Service, General Administration and Coordination Department, Government of Sindh. In this revised Schedule at least 64 cadre posts in BS-20 have been shown at Secretariat Side while 52 BS-20 posts have been shown at field posts, which make total 127 posts.

4. Besides, producing the revised schedule, the learned A.G. also pointed out the comments filed by Secretary, Service, General Administration and Coordination Department, Government of Sindh in which it is clearly stated that the petitioner while working as Revenue Officer in KW&SB was transferred and posted as Director General, H.D.A. on OPS basis. It is further stated that on the recommendation of D.P.C. the petitioner was promoted to the post of Chief Financial Officer (BS-20) but he was not promoted against the post of Director General, H.D.A. It is further stated in the comments that amendment made in the Sindh Civil Servants Act regarding the out of turn promotion etc. have already been declared violative and ultra vires of the provisions of Constitution by the hon'ble Supreme Court of Pakistan hence the petitioner cannot claim his posting at particular place.

5. No doubt that Hyderabad Development Authority is statutory body and has had its statutory rules under which its employees are governed, but so far as the posting and transfer of Director General is concerned, his appointment is made under Section 7 of the Hyderabad Development Authority Act, 1976 by the Government on such terms and conditions as Government may determine but the post of Director General, Hyderabad Development Authority in BS-20 is a cadre post, which is clearly provided in revised schedule of field posts at Sr.No. 35, By simply arguing that appointment of Director General, Hyderabad Development Authority made under Section 7 does not mean that the Government may appoint any person on a cadre post without fulfilling the requisite formalities or the other mandatory requirements. Learned counsel for the petitioner referred to the case of Zahid Akhter in which it was held that a normal period of posting of Government Servant at a station according to Punjab Government Rules of Business is 3 years. The facts and circumstances of this case are distinguishable especially in the circumstances when the present petitioner is enjoying cadre post without fulfilling the requisite requirements. He further referred to the case of Syed Mahmood Akhtar Naqvi which is commonly known as Anita Turab case in which the hon'ble Supreme Court discussed the period of tenure post and held that appointing authorities could not be allowed to exercise discretion at their whims or in an arbitrary manner; rather they are bound to act fairly, evenly and justly. It was further held that the ordinary tenure for a posting had been specified in the law or rules then such tenure must be respected and could not be varied except for compelling reasons. Again we would like to observe that before apply the dictum of Anita Turab case, it is necessary for the petitioner to demonstrate that he is eligible for the cadre post from which his transfer has been made questionable by him through this petition. Nothing has been produced before us to substantiate that the post of Director General, Hyderabad Development Authority is not a cadre post but the appointment was tried to be protected or shielded under Section 7 of the Act on the plea that the Government has power to appoint Director General, Hyderabad Development Authority. The latest judgment of apex Court reported in 2013 SCMR 1752, made it clear unequivocally that no civil servant of a non-cadre post can be transferred to hold the cadre post which is meant for recruitment through competitive process which judgment has a binding effect in terms of Article 189 of the Constitution of Pakistan 1973. It is not the case of the petitioner that he was appointed Director General, Hyderabad Development Authority through competitive process rather it is an admitted position that initially he was appointed as Accounts Officer, then he was posted as Chief Financial Officer and then Director General, Hyderabad Development Authority which means that he has not brought in through competitive process to hold the present office which is a cadre post in view of the revised schedule dated 12.3.2013. Though at the time of filing of this petition on 14.2.2013, this revised schedule was not available, however, learned A.G. robustly argued that in view of the aforesaid dictum of hon'ble Supreme Court, the petitioner is required to be repatriated to his original posting/department. The petitioner has only challenged his transfer and this is not the case that post of Director General, Hyderabad Development Authority is not a cadre post. Including the period of interim orders, the petitioner has already served as Director General, Hyderabad Development Authority for more than three years and still he is claiming the post of Director General, Hyderabad Development Authority as a vested right notwithstanding that he is not eligible to hold a cadre post.

6. As a result of above discussion, this petition is dismissed. However, it is clarified that when the Government of Sindh has taken straightforward and unambiguous standpoint that the post of Director General H.D.A. is cadre post of B.P.S.-20, which is meant for recruitment through competitive process, hence the new incumbent to this office will be appointed and posted accordingly.

(R.A.) Petition dismissed

PLJ 2014 Karachi 327 (DB)

Present: Syed Hassan Azhar Rizvi and Muhammad Junaid Ghaffar, JJ.

AAMIR MALIK--Petitioner.

versus

BANKING COURT NO.II AT KARACHI & 2 others--Respondents

C.P No. D-377 of 2014, decided on 10.6.2014.

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code, (V of 1908), O. XXI, R. 66--Knowledge of the execution proceeding as well as filing of amended execution application after passing of modified decree--Petitioner had chosen by himself not to proceed or participate in the proceedings or to have filed any objections or any other application before Banking Court with regard to the sale and auction of the property--Petitioner had not filed any application under Order XXI Rule 89 or 90, CPC for setting aside of the auction sale of the said property--Case of the petitioner it appears is not of setting aside of sale, but merely on the premise that the valuation has not been properly carried out and notice under Order 21 Rule 66 has not been served upon--Such petitioner is not supported by the record of Banking Court placed before High Court and petitioner has failed to bring on record anything to contrary--Conduct of the petitioner before Banking Court had such that any indulgence at that stage of proceedings could not be given by High Court, on basis of the objections as raised on behalf of the petitioner. [Pp. 334 & 335] A

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code, (V of 1908), O. XXI, R. 66--Sanctity and presumption of correctness is attached to the judicial record. [P. 335] B

M/s.Zeeshan Abdullah & Saalim Salam Ansari, Advocates for Petitioner.

M/s.Ijaz Ahmed Zahid, Waqar Ahmed and Aijaz Ahmed Shirazi, Advocates for Respondent No. 2.

Mr. S.M. Kazim, Advocate for Auction Purchaser.

Date of hearing: 20.3.2014.

Judgment

Muhammad Junaid Ghaffar, J.--Through instant petition, the petitioner has sought the following relief(s):--

"(1) To set aside the impugned order dated 23.10.2013, Sale Certificate dated 7.1.2014.

(2) To set aside letter to vacate possession of the property.

(3) To Direct the respondent to postpone suspend/execution proceedings No. 47/2009 for vacating the suit property dated 9.1.2014 in respect of the suit property till final decision of this Hon'ble Court.

(4) To declare null & void sale/auction proceeding with the bidder.

(5) To restrain the respondents, decree holders, anyone acting on their behalf not to disturb the petitioner, disposes the petitioner from the mortgaged property/suit property i.e. bearing Flat No. 705, 7th Floor admeasuring 1858.95 square feets Sea Breeze Condominium Clifton, Block 2, Karachi till finalization of this Constitution petition

(6) Any other relief or reliefs which this Hon'ble Court may deem fit and proper in circumstances of the Constitution Petition"

1. Briefly stated facts as per the memo of petition are, that the petitioner is one of the legal heirs of deceased Malik Khuda Muhammad who expired in 2007 and had during his lifetime had mortgaged the suit property bearing Flat No. 705, 7th Floor admeasuring 1858.95 Sq.Ft Sea Breeze Condominium Clifton, Block 2, Karachi ("property") with Respondent No. 2 and had obtained a finance facility. Subsequently, Respondent No. 2 filed a reovery suit Bearing No. 184 of 2008 before the Banking Court No. II at Karachi, ("Banking Court") which was decreed in favor of Respondent No. 2, for a sum of Rs.33,11,762/- along with cost of funds. Thereafter an Execution Application Bearing No. 47 of 2009 was filed by the Respondent No. 2, and on 22.2.2010 auction proceeding for the sale of the said property was conducted and one offer was received in the sum of Rs. 3.6 million, however the offer was not accepted by the learned Banking Court. Subsequently, valuation of the said property was ordered to be conducted and the Valuator submitted its Valuation report dated 8.8.2011 after which on 2.9.2011, second auction was conducted for the sale of the said property but no bids were received. It is further stated that the petitioner filed objections to the auction proceedings on 26.9.2011 and contended that valuation of the said property was on the lower side and must be revised. Thereafter no further proceedings took place till 28.11.2013 when the third auction was carried out and one offer of Rs. 3.7 million was made by auction purchaser ("auction purchaser") which was accepted by the learned Banking Court and a sale certificate dated 7.1.2014 was issued in favor of the auction purchaser, after which a writ of possession was issued on 9.1.2014 which has been challenged in the instant petition by the petitioner.

2. Mr. Zeeshan Abdullah learned Counsel for the petitioner contended that the impugned orders dated 7.1.2014 and 9.1.2014 were illegal and against the mandatory requirements as prescribed under Order XXI Rule 66, CPC. It was further contended that the property was sold at a much less price on the basis of valuation report dated 08.08.2011; whereas the auction was conducted in the year 2013 and the price of the property had appreciated, therefore the auction was not sustainable and liable to be set-aside Learned Counsel further contended that in fact the petitioner had challenged the judgment dated 23.02.2009 and decree dated 26.02.2009 passed in Suit No. 184 of 2008 by the learned Banking Court through First Appeal No. 17 of 2009 before this Court which was partly allowed vide Order dated 22.11.2011 and subsequent to passing of the said order, the Respondent No. 2 was required to file an amended Execution Application as the decree already passed by the learned Banking Court was no more in field, rather stood modified to the extent of judgment dated 22.11.2011 and decree dated 18.6.2013. Per learned Counsel, hence all such proceedings which had been acted upon by the learned Banking Court were corum-non-judice and fresh Execution proceedings were required to be initiated after passing of such decree and judgment in appeal. Learned Counsel further contended that no notice was served on the petitioner (who is the judgment debtor as well) under Order XXI Rule 66, CPC, and therefore the entire auction proceedings were illegal and liable to be set aside. Learned Counsel also contended that the said property was also mortgaged in another case and such encumbrance has not stated in the proclamation of sale, therefore the impugned auction was liable to be set aside on this ground as well. Learned Counsel next submitted that though the petitioner was being represented before the learned Banking Court, but after passing of judgment dated 22.11.2011 and decree dated 18.6.2013 by this Court, the petitioner was not served with any fresh notice and it was not in the knowledge of the petitioner, that any auction proceedings were being carried on by the learned Banking Court. With regard to the objection raised on behalf of the respondents, that the instant petition was not maintainable as a remedy by way of appeal is provided under the Financial Institution Recovery Ordinance, 2001 ("Ordinance, 2001), the learned Counsel contended that this Court has vide discretionary and inherent powers to convert the instant petition into an appeal under the Ordinance, 2001. In support of his contention the learned Counsel has relied upon the case of Khursheed Begum and others vs. Inam-ur-Rehman Khan and others (PLD 2009 SC 552), Brig. (Retd) Mazhar ul Haq and another vs. M/s. Muslim Commercial Bank Limited, Islamabad and another (PLD 1993 LAHORE 706), Mst. Zainab Bibi vs. Allied Bank of Pakistan Limited and others (2003 YLR 3274), Mirza Munawar Baig and 5 others vs. Bank Al-Falah Limited and 2 others (2007 YLR 126), M/s. Ripple Jewelers (Pvt) Limited Vs First Women Bank Limited (2003 CLD 1318), Muhammad Attique vs. Jami Limited and other (PLD 2010 SC 993), Mrs. Shahida Saleem and another vs. Habib Credit and Exchange Bank Limited and 4 others (2001 CLC 126), Messrs Lanvin Traders, Karachi vs. Presiding Officer, Banking Court No. 2, Karachi and others (2013 CLD 1581), Syed Ghazanfar Hussain through Legal heirs and others vs. Nooruddin and others (2011 CLC 1303), Muhammad Hashim vs. Presiding Officer, Special Banking Court, Karachi (Offences in Banks) and 7 others (2007 YLR 2651), Ms. Rahim Iqbal Vs Banking Court No. II & others (2008 CLD 338) and Mst. Ghulam Sakeena vs. Bashir Ahmed and others (2000 CLC 334).

3. On the other hand Mr. Ijaz Ahmed Zahid leaned Counsel for Respondent No. 2 ("Bank") contended that the petitioner was all along on notice before the Banking Court, therefore the objection that no notice was served upon the petitioner is baseless and without any supporting material on record. Leaned Counsel further contended that an amended Execution Application was filed by Respondent No. 2 after passing of the Order in appeal by this Court, which has been placed on record through statement dated 20.3.2014 Learned Counsel also referred to diary sheet of the Banking Court dated 21.08.2013 in which the presence of the junior Counsel/Associate of the Counsel for the judgment debtor is recorded and the adjournment sought by the petitioner's Counsel was granted till 27.8.2013 for hearing of application under Order XXI Rule 66, CPC. Learned Counsel further contended that the proclamation of sale was duly carried out by the learned Banking Court and was served upon all the relevant and necessary parties as per the record of the Banking Court, therefore the objection of the petitioner in this regard is uncalled for. Learned Counsel further contended that the presence of the petitioner's Counsel is reflected in the diary sheet dated 21.8.2013 which is a matter of judicial record and a presumption lies in favor of the correctness of such judicial record. Learned Counsel also contended that previously the terms and conditions of the sale stood settled in all respects, and it was to be modified only to the extent of the judgment dated 20.11.2011 and decree dated 18.6.2013 by this Court in appeal. Per learned Counsel the same was accordingly done by filing of the amended Execution Application, whereafter notice to all concerned was issued, however the petitioner itself chose not to appear and seek adjournments after adjournments, therefore the objection with regard to notice not being served upon the petitioner is totally misconceived Learned Counsel also referred to order dated 23.10.2013 passed by the Banking Court wherein the terms of sale under Order XXI Rule 66, CPC were settled in terms of the modified decree dated 18.6.2013 passed by this Court Learned Counsel next contended that since the petitioner was in knowledge of the pending execution proceedings, therefore the learned Banking Court was not required to issue notice of each and every date to the petitioner as the petitioner was already being represented through an Advocate, and instead they should have proceeded with the matter, rather than expecting a fresh notice by the learned Banking Court. Learned Counsel further submitted that at least four valuations were carried out in respect of said property and since the said property was also mortgaged in Suit No. 43 of 2003 (Execution No. 22 of 2006) before the learned Banking Court No. III, at Karachi, a valuation was carried out valuation of 18.12.2012, wherein the forced sale value was prescribed as Rs. 3.2 million by M/s. Joseph Lobo (Pvt.) Limited and such valuation was never objected to by the petitioner, therefore the contention of the learned Counsel for petitioner that the auction was carried out on the basis of a valuation dated 08.08.2011 is not correct. Learned Counsel further contended that in the valuation report dated 18.12.2012, the evaluator has observed that the condition of the property is in a very bad shape and more over access to the said property is also not easily approachable at present, and cannot be compared with other properties in the vicinity, therefore the forced sale value of Rs. 3.4 million was justified which is also reflected from the fact that only one bid was received in respect of the said property. Learned Counsel vehemently argued that the instant petition was neither maintainable, nor it could be converted into an appeal as the same was not also available in the first place. Learned Counsel submitted that no objections to application under Order XXI Rule 66 CPC were filed by the petitioner, therefore no appeal is provided to the petitioner as such question of conversion of the instant petition into an appeal does not arise. Learned counsel lastly contended that even otherwise the alternate remedy of appeal had become time barred and the instant petition is entirely based on ascertainment of facts for which this Court had no jurisdiction under Article 199 of the Constitution to resolve such factual aspects of the case, therefore the instant petition is liable to be dismissed.

4. Mr. S. M. Kazim Hussain learned Counsel for auction purchaser in addition to adopting the arguments put forth by the learned Counsel for Respondent No. 2, contended that the auction purchaser had lawfully purchased the property in auction and the petitioner are misrepresenting certain facts before this Court, as they have all along appeared before the learned Banking Court and in fact had failed to avail the alternate remedy of appeal and have not come with before this Court with clean hands, therefore no indulgence could be given to them. Learned Counsel submitted that the auction was carried out on 28.11.2013, whereas the instant petition has been filed on 28.1.2014, which is hopelessly barred by time, as the limitation starts from the date the hammer falls and not from the date of confirmation of sale. In support of his contention learned Counsel relied upon the case of Azam Wazir Khan vs. M/s. Industrial Development Bank of Pakistan and others (2013 CLD 974). Nazir Cotton Mills vs. State Bank of Pakistan & others (2007 CLD 1642) Mumtaz ud Din Feroze vs. Shaikh Iftikhar Adil & others (2009 CLD 594) M/s. Chawla International s. Habib Bank Ltd and others (2003 CLD 956) Mst. Noor Khatoon and others vs. Habib Bank Ltd and another (2013 CLC 702) M/s. Irisma International & 3 others vs. United Bank Limited and another (2006 CLD 832) Mukhtar Ahmed vs. M/s. United Bank Limited another (2013 CLD 841) M/s. Ashraf Agro and others vs. Habib Bank Limited (2008 CLD 449), M/s. United Bank Ltd. Vs Mst. Asma Zafarul Hassan (1980 CLC 565). M/s. Kayjay Industries Ltd vs M/s. Asnew Drums (Pvt) Ltd. And others (AIR 1974 SC 1331 Bombay), Muhammad Ikhlaq Memon vs Zakaria Ghani and others (PLD 2005 SC 819), Pakistan Industrial Credit & Investment Corporation Ltd vs Shahdin Limited (2001 CLC 1267), Mst. Asma Zafarul Hassan vs. United Bank Ltd and another (1981 SCMR 108), Lilaram vs Ghulam Ali @ Essa through legal heirs and others (1991 SCMR 932), Bandu Hari vs Bhagya Laxman and others (AIR 1954 Bombay 114), Narayan Purushottan Bansod vs Ramchandra Mudgalji Choudharkar and others (AIR (35) 1984 Nagpur 177), P.Q. Chemicals vs A.W. Brothers and others (2005 CLD 169), Habib Bank Ltd. vs. M/s. Ajma Corporation and others (2000 CLC 1425), Muhammad Moin vs State Bank of Pakistan and others (2009 CLD 899), M/s. Unicom Enterprises Banking Court No. 5 and 2 others (2004 CLD 1452), Muhammad Rafiq vs. Federation of Pakistan and 2 others (2013 CLC 1679), Ghulam Mustafa Vughio and another vs Judge Banking Court No. 4, Karachi (2006 CLD 528), Ghulam Rasool Bhatti vs Judge Banking Court No. 4, Karachi (2007 CLD 1578), M/s. UBL vs Banking Court No. IV Lahore and others (2004 CLD 1114), Muhammad Rafi and another vs Muhammad Ashfaq, Civil Judge, Hasilpur & others (1994 SCMR 2301), Muhammad Abbasi vs SHO Bhara Kahu & 7 others (PLD 2010 SC 969).

5. We have head all the learned Counsel and have perused the record with their assistance. By consent the instant petition is being finally disposed of at Katcha Peshi stage.

6. It appears that primarily the petitioner has challenged the notice for writ of possession dated 09.01.2014 and has based the issuance of said writ of possession as the cause of action for filing the instant petition. The case of the petitioner appears to be that after passing of the amended decree dated 18.6.2013 in appeal by this Court; the petitioner was not in knowledge of any proceedings of execution being proceeded with, by the learned Banking Court; therefore the mandatory requirement of Order XXI Rules 64 & 66, CPC has been violated, hence the entire proceedings of auction and confirmation of sale are illegal and liable to be set aside. The other contention which has been raised on behalf of the petitioner is, that the property has been auctioned on the basis of a valuation report which was carried out in August 2011, whereas the auction was conducted in November 2013, and in between this period the prices of the property have appreciated to an alarming extent, therefore the reserved price fixed by the learned Banking Court was not correct and the auction carried out on the basis of such valuation cannot be sustained. Though several grounds have been raised by the learned Counsel for the petitioner while arguing the instant petition, however from the perusal of the pleadings, it appears that the learned Counsel for petitioner has argued its case much beyond such pleadings as none of these objections, except with regard to the valuation report and the alleged non compliance of the provisions of Order XXI Rule 66, CPC were raised through the instant petition. In fact at the time of passing of the interim order in this matter, these two contentions were raised on behalf of the petitioner which have also been recorded in the said order dated 28.1.2014.

7. Insofar as the issue of valuation is concerned, we have been assisted by the learned Counsel for Respondent No. 2, and with which we tend to agree, that a comprehensive valuation was carried out in December, 2012 as against the earlier valuation carried out in August 2011. The forced sale value in both these valuations are more or less the same, rather the forced sale value in the year 2011 was Rs. 3.6 Million, whereas the forced sale value in December 2012 was Rs. 3.2 Million, therefore the objection raised by the learned Counsel for the petitioner, that the auction has been carried out on the basis of a valuation conducted in August, 2011 is not correct as subsequent to such report of valuation, another valuation was on record before the learned Banking Court on the basis of which the auction of the said property has been carried out. Hence the said objection is misconceived and cannot be appreciated by this Court on the basis of the material available on record. Insofar as the contention to the effect that no notice under Order XXI Rule 66, CPC was served upon the petitioner is concerned, we have gone through the diary sheet of the learned Baking Court available at page 189 of the file, and have noticed that on 21.8.2013 the associate of the petitioner's Counsel was present and had received copy of the amended Execution Application filed by Respondent No. 2 in compliance of the decree dated 18.06.2013 passed in appeal by this Court. It has been also observed by the learned Banking Court in the said diary sheet that amended/modified terms of sale of the mortgaged property is required to be done and for such modification and amended sale of terms the matter was adjourned to 12.9.2013. On 12.9.2013 none was present on behalf of the petitioner and in the interest of justice the matter was adjourned to 3.10.2013. On 3.10.2013 again none was present on behalf of the petitioner and once again in the interest of justice one more chance was given to the petitioner and the matter was adjourned to 23.10.2013 for the same purpose. On 23.10.2013 again none was present for the petitioner and the following order was passed by the learned Banking Court:

"Advocate for Decree. Holder is present. None present from Defendant/Judgment Debtor side. Terms and conditions are settled. Issue sale proclamation of mortgaged properties. Put off to 28.11.2013 for Nazir report."

1. Thereafter, the learned Banking Court proceeded with the auction proceedings and on 28.11.2013 the bid filed by auction purchaser was received and on 6.1.2014 the sale was confirmed by the learned Banking Court. From the perusal of the diary sheet it appears that the petitioner was all along in the knowledge of the Execution proceedings as well as filing of amended execution application by the Respondent No. 2 after passing of modified decree dated 18.6.2013 by this Court and in fact had received the copy of the amended Execution application on 21.8.2013. Thereafter the petitioner had chosen by himself not to proceed or participate in the proceedings or to have filed any objections or any other application before the learned Banking Court, with regard to the sale and auction of the said property. It is an admitted position that the petitioner had not filed any application under Order XXI Rule 89 or 90, CPC for setting aside of the auction/sale of the said property. The case of the petitioner it appears is not of setting aside of sale, but merely on the premise that the valuation has not been properly carried out and notice under Order XXI Rule 66 has not been served upon. Such factual assertion of the petitioner is not supported by the record of the Banking Court placed before us and the petitioner has failed to bring on record anything to the contrary. Now it does not lie in the mouth of the petitioner to come before this Court and raise objections with regard to the non-compliance of any of the procedure and specially of Order XXI Rule 66, CPC. The conduct of the petitioner before the learned Banking Court had been such that any indulgence at this stage of the proceedings could not be given by this Court, on the basis of the objections as raised aforesaid on behalf of the petitioner. It is also a settled proposition that sanctity and presumption of correctness is attached to the judicial record. Learned Counsel for the petitioner has not been able to satisfactorily controvert such position, except arguing that none had appeared on behalf of the petitioner on 21.8.2013. Such contention and or line of arguments cannot be accepted by this Court merely on the assertion of the petitioner without having any supporting material on record. This Court in its Constitutional jurisdiction cannot look into such facts of the case and is neither in a position to alter any such factual position.

2. Though the learned Counsel for petitioner has referred to various judgments in support of his contention but we have noticed that none of these judgments as referred to, by the learned Counsel for the petitioner are relevant in the given facts and circumstances of the instant case. Here the petitioner's case as discussed above is based only on two grounds; one is the lesser valuation of the property or the valuation being carried out much prior to the conduct of the auction proceeding; second being the non compliance of Order XXI Rule 66, CPC. We have already answered both these objections as aforesaid, therefore the judgments so referred by the learned Counsel for the petitioner cannot be considered as they are of no help to the case of the petitioner.

3. In addition to this the learned Counsel for the petitioner has forcefully relied upon the case of Lanvin Traders (Supra) to contend that the petitioner's case is fully covered by the said judgment of the Honorable Supreme Court and the controversy in like matters has been put to rest, as such the instant petition is liable to be allowed on the basis of the said judgment. We have perused the said judgment of the Honorable Supreme Court in the case of Lanvin Traders (Supra) and in our opinion the ratio of the said judgment is not applicable to the facts of the instant petition as the price fetched in the instant matter is more than the decretal amount; the terms of sale were properly settled by the Banking Court in terms of Order XXI Rules 64 & 66, CPC, wherein the amount of decree, market price and Forced Sale Value were mentioned hence substantial compliance of law was done; neither any enhanced offer was ever received nor the petitioner had given any offer nor had brought any other buyer or bidder for the purchase of the said property. In view of such admitted facts in our view the said judgment is of no help to the case of the petitioner as the facts of the petitioner's case are entirely and materially different from the case of Lanvin Traders (Supra) which had prevailed upon the Honorable Supreme Court to set aside the auction/sale of the property in that matter.

4. Since we are of the opinion that the instant petition is not maintainable even on merits of the case therefore we need not answer the objection as to whether the instant petition can be converted into an appeal or not as such exercise would be a futile one.

5. In view of hereinabove, we are of the opinion that the petitioner has failed to make out any case of indulgence from this Court; consequently the instant petition is dismissed with all pending applications(s). Office is directed to send a copy of this order immediately to the Banking Court No. II at Karachi further proceedings in the matter in accordance with law.

6. Petition stands dismissed.

(R.A.) Petition dismissed.

THE END

PLJ 2014 Lahore 1 (DB) [Multan Bench Multan]

Present: Muhammad Qasim Khan and Ibad-ur-Rehman Lodhi, JJ.

MINISTRY OF DEFENCE and 3 others--Appellants

versus

MUHAMMAD ATHER--Respondent

I.C.A. No. 208 of 2012 in W.P. No. 7537 of 2009, decided on 26.3.2013.

Limitation Act, 1908 (IX of 1908)--

----S. 3 & Art. 151--Law Reforms Ordinance, 1972, S. 3--Intra Court Appeal--Post remand proceedings--Limitation--Question of--Maintainability of I.C.A. on touch stone of limitation--Delay occasioned in filing of I.C.A--Validity--Limitation provided for filing an appeal from a decree or order of a High Court in exercise of its original jurisdiction is twenty days from date of decree or order as provided under Art. 151 of First Schedule provided u/S. 3 of Limitation--Starting period is given as date of decree or order and present filing of appeal is not given any relaxation for exclusion of period spent in obtaining certified copies--When CPLA was ordered to be converted into Intra Court Appeal--Although there is no concept of exclusion of time spent in obtaining certified copies in case an I.C.A. is to be filed, nevertheless after exclusion of the period of six days--Date of submission of form in copying agency for obtaining certified copies of record, when copies were prepared even then, it would become 52nd day, when I.C.A. was considered to have been filed--Period of limitation provided under Art. 151, Limitation Act, I.C.A. was barred by 32 days on date of filing--While converting C.P.L.A into an I.C.A and by remitting back to High Court, left it open for High Court to decide appeal in accordance with law subject to all just and valid objections--High Court an examine objection with regard to limitation--Delay in filing of Intra Court Appeal would not become liable to be condoned as appellants had failed to show any sufficient reasons for condonation of such delay--Application was dismissed. [Pp. 3, 4 & 5] A, B, C & D

PLD 2001 SC 355 & 1999 SCMR 644, ref.

M/s. Khawaja Noor Mustafa, Deputy Attorney-General and Rana Javed Akhtar, Standing Counsel for Appellants.

Chaudhry Shakir Ali, Advocate for Respondent.

Date of hearing: 26.3.2013.

Order

Writ Petition No. 7537 of 2009 was allowed by a learned Single Judge of this Court on 06.05.2011. The present appellants feeling aggrieved of the said findings preferred CPLA No. 1008 of 2011 titled Ministry of Defence and 3 others v. Muhammad Ather" before the Hon'ble Supreme Court of Pakistan, which came up for hearing before the apex Court on 24.09.2012, and the same was disposed of in the following manner:--

"4. It is not disputed that the order passed by the Single Judge of the Lahore High Court was amenable to Intra Court Appeal. When so petition for leave to appeal could not have been straight away filed in this Court. We, however, instead of dismissing this petition convert it into an ICA by following the dictum rendered in the case of Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539) and direct the office to send it back to the High Court for decision in accordance with law subject to all just and valid objections. This petition thus stands disposed of".

1. In post-remand proceedings, we have heard the learned counsel for the appellants.

2. The respondent appeared through his learned counsel at limine stage and by means of a preliminary objection, questioned the maintainability of the present Intra-Court Appeal on the touchstone of limitation and the learned Deputy Attorney-General/Standing Counsel were asked first to cross the hurdle of limitation.

3. Civil Miscellaneous No. 6558 of 2012 has been moved by the appellants under the provisions of Section 14 of the Limitation Act, 1908, with a request to condone the delay caused in filing of Intra-Court Appeal. In para-5 of the said Civil Miscellaneous, the stance of the appellants is that the delay occasioned in filing of the Intra-Court Appeal was neither deliberate nor intentional or wilful but it was occasioned only on account of the reasons mentioned in the preceding paragraphs of the said Civil Miscellaneous.

4. We have minutely gone through Paragraphs No. 1 to 4 of the said Civil Miscellaneous, but except narration of facts with regard to the passage of judgment passed by this Court in Writ Petition No. 7537 of 2009 and obtaining the copies thereof, the filing of CPLA and then returning the CPLA after its conversion into ICA to this Courts, no reason or justification has been extended by the appellants justifying such delay in filing the Intra-Court Appeal, in all these paragraphs, which are the sole basis of the prayer made in the Civil Miscellaneous for condonation of delay.

5. The limitation provided for filing an appeal from a decree or order of a High Court in the exercise of its original jurisdiction is twenty days from the date of decree or order as provided under Article 151 of the First Schedule provided under Section 3 of the Limitation Act, 1908. Column No. 3 of the said Schedule is meant for mentioning of time from which period begins to run and against Serial No. 151 in Column No. 3, the starting period is given as "the date of the decree or order" and the present filing of appeal is not given any relaxation for exclusion of the period spent in obtaining the certified copies of the relevant record.

6. The judgment passed by the learned Single Judge was delivered on 06.05.2011. On behalf of the appellants, an application for obtaining certified copies of the relevant record was made on 12.05.2011 and the record was prepared in shape of certified version on 17.05.2011. CPLA was filed on 09.07.2011, which was the 58th day of passage of the judgment by the learned Single Judge of this Court in Writ Petition No. 7537 of 2009.

7. The Hon'ble Supreme Court of Pakistan when disposed of the said CPLA, made certain observations, which are of significance for the purposes of disposal of the present Civil Miscellaneous seeking condonation of delay in filing of Intra-Court Appeal. The order was passed by the Hon'ble Supreme Court of Pakistan on 24.09.2012 in presence of both the parties and it is clearly noted that it was never disputed before the apex Court that the judgment passed by the learned Single Judge was amenable to Intra-Court Appeal. It is also noteworthy that when the CPLA was ordered to be converted into ICA, it was ordered to be sent back to the High Court for "decision in accordance with law subject to all just and valid objections".

8. The CPLA was allowed to be converted into ICA and at the cost of repetition the date of filing of CPLA is once again provided viz. 09.07.2011. When the CPLA was converted into ICA and the same is being heard by us as ICA, the date of filing CPLA must be taken as a date of filing of ICA. As noted earlier, the date of filing of CPLA was the 58th day from the date, when the learned Single Judge passed the judgment in Chambers on 06.05.2011.

9. Although there is no concept of exclusion of the time spent in obtaining the certified copies of the relevant record in case an ICA is to be filed, nevertheless after exclusion of the said period of six days (from 12.05.2011, the date of submission of form in Copying Agency for obtaining certified copies of relevant record to 17.05.2011, when the copies were prepared), even then, it would become 52nd day, when the ICA was considered to have been filed. Keeping in view the period of limitation provided under Article 151 of the Limitation Act, 1908, the ICA was thus barred by 32 days on the date of its filing.

10. The Hon'ble Supreme Court of Pakistan while converting the CPLA into an ICA and by remitting the same back to this Court, left it open for this Court to decide the appeal in accordance with law subject to all just and valid objections, thus, we can examine the objection raised by the respondent with regard to the limitation.

11. The Hon'ble Supreme Court of Pakistan in case of Mst. Khadija Begum and 2 others vs. Mst. Yasmeen and 4 others (PLD 2001 Supreme Court 355) while dealing with the question of limitation has categorically held that sufficient cause must be shown by the person seeking condonation of delay, which means "circumstances beyond control of party concerned" and that, nothing shall be deemed to be done in good faith, which is not done with due care and attention.

12. The Hon'ble Supreme Court of Pakistan in case of Federation of Pakistan and 2 others vs. Khurshid Ahmed and another (1999 SCMR 664) has dealt with the question of availability of ICA or otherwise and interesting factor is that in the reported matter, the General Headquarters (GHQ) was a party to the litigation and after such authoritative findings by the Hon'ble Supreme Court of Pakistan, the General Headquarters must become wiser and aware of the remedy available under the law but notwithstanding such position a remedy by way of CPLA was availed, while ICA was undeniably available to the aggrieved party. It is a settled position of law that in case of time barred proceedings, defaulting party must explain the delay of each day caused in preferring a valid proceedings in accordance with law.

13. The learned Deputy Attorney-General has attempted to argue that they became aware of the position that ICA was the proper remedy only on 24.09.2012, when the Hon'ble Supreme Court of Pakistan disposed of their CPLA.

The learned counsel for the respondent, however, has drawn our attention to CMA No. 2820 of 2011 in CPLA No. 1008 of 2011 filed on behalf of the present respondent before the Hon'ble Supreme Court of Pakistan in such pending petition on 21.07.2011 and in para-3 thereof, an objection was specifically taken to the effect that the petitioners therein/appellants herein had bypassed the forum of ICA under Section 3 of the Law Reforms Ordinance, 1972 and by referring such CMA, the learned counsel for the respondent argued that at least on 21.07.2011, the appellants must be presumed to have become aware of the objection with regard to the availability of remedy in shape of ICA for the appellants, even then the appellants waited till disposal of the CPLA by the Hon'ble Supreme Court of Pakistan and have not taken any remedial steps after having become aware of availability of remedy of ICA, which shows their conduct as casual and irresponsible one towards their affairs.

1. From whatever angle, we adjudge, the delay in filing of ICA would not become liable to be condoned, as the appellants have failed to show any sufficient reasons for condonation of such delay.

2. For all what has been discussed above, we see no reason to condone the delay in filing of ICA No. 208 of 2012; resultantly, Civil Miscellaneous No. 6558 of 2012 is dismissed.

3. Since the Civil Miscellaneous has been dismissed and the delay caused in filing of ICA has not been condoned; therefore, the ICA is also dismissed as being barred by time.

(R.A.) I.C.A. dismissed

PLJ 2014 Lahore 6 [Multan Bench Multan]

Present: Abdul Sami Khan, J.

SH. MAJEED AHMAD--Petitioner

versus

JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, MULTAN and 2 others--Respondents

W.P. No. 14616 of 2012, decided on 31.10.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Stale cheque--Not dishonoured due to lack of funds or closure of accounts--Order of justice of peace was without reasoning had been passed at the back of petitioner--Validity--Justice of Peace while passing the order had failed to appreciate the fact that all dishonoured cheques and such fact was also established from memo. slips issued by the Bank, therefore, prima facie it seems that disputed cheques were not issued for fulfillment of any financial obligations and if it was no so, even then same had been dishonoured due to fault on part of respondent--Stale cheque is nothing but a waste paper--Petition was accepted. [P. 7] A

2005 CLC 797 & 1994 MLD 271, rel.

Mr. Muhammad Ramzan Khalid Joiya, Advocate for Petitioner.

Mr. Aziz-ur-Rehman Khan, Assistant Advocate General for State.

Date of hearing: 31.10.2013.

Order

Through this petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the vires of order dated 20.06.2011 passed by the learned ex-officio Justice of Peace/Additional Sessions Judge, Multan whereby the concerned SHO/Respondent No. 2 has been directed to record the statement of Respondent No. 3 and proceed further strictly in accordance with law.

1. The learned counsel for the petitioner submits that Respondent No. 3 has procured the impugned order from the learned Justice of Peace by concealing and twisting material facts and the same is against law and actual circumstances of the case. Further submits that Respondent No. 3 was the employee of the petitioner, who had stolen the disputed cheques and misused the same to take undue financial benefits. Nothing is to be paid by the petitioner to Respondent No. 3. The petitioner has fabricated a false and frivolous story in his application for registration of case and has tried to put the machinery of criminal law into motion to bear upon the petitioner. Further submits that the disputed cheques are stale cheques and have not been dishonoured due to lack of funds or closure of account rather cheques could not be cleared being stale cheques. Further submits that according to the contents of application for registration of FIR moved by Respondent No. 3 before the concerned SHO, no cognizable offence is made out. Further submits that the order of the learned Justice of Peace is without reasoning and has been passed at the back of the petitioner, hence, the impugned order is liable to be set aside.

2. On the other hand the learned Assistant Advocate General has controverted the contentions raised by the learned counsel for the petitioner and submits that from bare perusal of contents of application for registration of FIR moved by Respondent No. 3 before the concerned SHO, clearly commission of cognizable offence is made out, hence there is no illegality or infirmity in the order passed by the learned Justice of Peace. Further submits that the contentions raised by learned counsel for the petitioner amount to resolve factual controversy which cannot be done at this stage.

3. I have heard the learned counsel for the petitioner and learned Assistant Advocate General and have also gone through the contents of application moved by the petitioner before Respondent No. 3 as well as the impugned order dated 20.06.2011 passed by the learned Justice of Peace. It has been noticed by this Court that on the application moved by Respondent No. 3 before the learned Justice of Peace, the learned Justice of Peace has directed Respondent No. 2 to record the statement of Respondent No. 3 for the registration of FIR. However, it has also been noticed that the learned Justice of Peace while passing the impugned order has failed to appreciate the fact that all the dishonoured cheques were not cleared by the concerned Bank being stale cheques and this fact is also established from the memo. slips issued by the concerned Bank, therefore prima facie it seems that the disputed cheques were not issued for the fulfillment of any financial obligations and if it is not so, even then the same have been dishonoured due to the fault on the part of Respondent No. 3. The stale cheque is nothing but a waste paper. Reliance can be placed upon 2005 CLC 797 and 1994 MLD 271.

4. For what has been discussed above this petition is accepted and the order dated 20.06.2011 passed by the learned Justice of Peace is set aside.

(R.A.) Petition accepted

PLJ 2014 Lahore 8

Present: Mamoon Rashid Sheikh, J.

MUHAMMAD ATIF HANIF--Petitioner

versus

GOVERNMENT OF PUNJAB through its Secretary, Health, Punjab, Lahore & another--Respondents

W.P. No. 11924 of 2013 & C.M. No. 2/2013, decided on 20.5.2013.

Constitution of Pakistan, 1973--

----Art. 199--Notification--S.C.O. (PH)1-10/2008--Constitutional petition--Contract for collection of parking fee was awarded for period of three years--Notification of new policy--Steps were taken to provide free parking to general public/visitors to Hospital--Vested right to be given contract for collection of parking fee car park for unexpired 19 months period of original contract--Validity--Petitioner had a vested right to be awarded contract so that he can complete unexpired period of his earlier contract as per recommendations of the committee--Hospital was, therefore, required to award rights of collection of parking fee only by way of calling for fresh tenders by public auction--No contract can, therefore, be awarded to petitioner--Since petitioner remained silent for a number of years and did not agitate the matter, therefore, his claim had become barred by time--Petitioner’s claim for award of contract for collection of parking fee in respect of car park for balance 19 months of his earlier contract was neither sustainable nor tenable--High Court cannot ignore the fact that petitioner had been out of pocket for a number of years--Hospital had not refunded said amount to petitioner, therefore, whilst holding that petitioner was not entitled to be given contract for collection of parking fee in respect of car park for balance 19 months of his earlier contract, as of right, it was directed that Hospital shall refund specific amount to the petitioner after due verification, plus mark-up at bank rate--Petition was disposed of accordingly. [Pp. 14 & 16] A, B, F & G

Punjab Procurement Regulatory Authority Act, 2007--

----S. 2(1)(n)--Public Procurement Regulatory Authority Ordinance, 2002--Scope--Public Procurement Rules, 2004, Scope--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Procuring agency--All procuring agencies as defined by S. 2(1) of Act are required to follow Act and Rules for public procurement as defined u/S. 2(n) of Act--Method of procurement had been spolled out in great detail in Rules, which inter alia provide for public advertisement and envisage a process of open bidding--There is no provision for negotiation or award of contract by way of private negotiations. [Pp. 14 & 15] C & D

2012 SCMR 1651, rel.

Contract--

----It is settled law that parties cannot contract out of statute. [P. 15] E

Haji Khalid Rehman, Advocate for Petitioner.

Mr. Muhammad Javed Munawar, Advocate for Respondent No. 2.

Mr. Muhammad Azeem Malik, Addl. Advocate-General, Punjab.

Date of hearing: 20.5.2013.

Order

Main Case C.M. No. 2/13

The brief facts giving rise to this petition are to the effect that in the year 2007 Respondent No. 2 invited bids for award of contract for collection of parking fee in respect of the Car Park in its premises w.e.f. 16.03.2007 to 15.03.2010.

1. The petitioner participated in the bidding process and was declared successful. As a consequence, he was awarded contract No. 6469/AHF/2007 dated 15.03.2007 by Respondent No. 2. As per the terms of the contract the petitioner was liable to pay Rs. 11,05,000/- per annum to Respondent No. 2 for the said period with 10% yearly enhancement. The petitioner was further required to deposit 1/4th of the annual contract amount plus Income Tax in advance within three days of the contract date. The petitioner was also required to deposit Rs.200,000/- as security in the form of CDRs which was refundable upon successful completion of the contract. Clause 3 of the contract further envisaged that the petitioner shall deposit a sum of Rs.500,000/- in the shape of CDRs for renovation of the Car Park within two weeks of the award of the contract. The petitioner deposited the security in the sum of Rs.200,000/- as also Rs.4,65,000/- towards renovation of the Car Park. The renovation is stated to have been done. In the meantime the then Chief Minister/Govt. of the Punjab (Respondent No. 1) implemented a policy through Notification No. S.O.(PH) 1-10/2008 dated 30.07.2008 by virtue of which free parking was introduced in all Government Health Institutions/Hospitals. As a consequence, the petitioner's contract was cancelled by Respondent No. 2 w.e.f. 08.08.2008 i.e. 19 months short of 15.03.2010 (the expiry date). As the tenure of the petitioner's contract had not expired and he had spent Rs.4,65,000/- for renovation of Car Park the petitioner agitated the matter before Respondent No. 2. A committee was formed by Respondent No. 2 to look into the matter and certain decisions were taken. Thereafter, in the year 2011 the petitioner again agitated the matter. As a consequence an Inquiry Committee ("the Committee") was constituted by the Finance & Planning Committee of Respondent No. 2 for inquiring into the matter and making its recommendations. After deliberating on the petitioner's case the Committee found that the contract amount from 14.03.2007 to 07.08.2008 was Rs. 15,50,069/- while the petitioner deposited Rs.1215,834/-, therefore, an amount of Rs.334,235/- was outstanding against the petitioner as at 07.08.2008. The renovation of the Car Park was undertaken and a sum of Rs. 10,50,000/- was spent by the civil contractor. Out of the amount Rs.465,000/- was paid by the petitioner as against the required amount of Rs.500,000/-. It was further found that the petitioner had spent the amount of Rs.465,000/- for the period of three years whereas the contract was cancelled w.e.f. 08.08.2008 i.e. 19 months short of the contract period. It was, therefore, recommended that the sum of Rs. 134,235/- be recovered from the petitioner on account of short payment and an amount of Rs.245,416/- be refunded to him for the period for which he had not received the benefit of the investment made by him for renovation of the Car Park. It was further recommended that in view of the fact that Rs.111,181/- (i.e. Rs.245,416/- - Rs.134,235/-) was liable to be refunded to the petitioner, therefore, the said amount may either be refunded to the petitioner or he may be allowed to complete the remaining 19-months of his contract period if at any later stage Respondent No. 1 decides to change its policy of free parking in Government Health Institutions/Hospitals. The matter remained pending and now the Caretaker Government of the Punjab has decided that parking fee be collected in Government Health Institutions/Hospitals and collection rights of parking fee be auctioned strictly in accordance with the Punjab Procurement Rules, 2009. The said policy decision has been implemented through Notification No. S.O (PH)1-10/2008 dated 16.04.2013.

2. Grievance is made out that Respondent No. 2 has not refunded the said amount to the petitioner and now in pursuance of the latest policy decision of Respondent No. 1 Respondent No. 2 has decided to award the parking fee collection rights of the Car Park through public auction without discharging its liability towards the petitioner and/or permitting the petitioner to complete its unexpired period (19 months) of contract.

3. The learned counsel for the petitioner whilst reiterating the facts narrated above submits that the petitioner has a vested right to be given the contract for the collection of parking fee vis-a-vis the Car Park for the unexpired-19 months period of his original contract. The petitioner as a concession is willing to take the contract for one year according to the rates notified by the Lahore Parking Company as mentioned in Notification dated 16.04.2013.

4. The report and parawise comments have been filed by Respondent No. 2 wherein whilst not denying the factum of award of the contract to the petitioner and the cancellation thereof in pursuance of the policy decision of Respondent No. 1, it is, however, maintained that in view of the instructions contained in the Notification dated 16.04.2013 and the provisions of the Rules, ibid, the contracts for parking fee in Government Health Institutions/Hospitals can only be awarded through public auction.

5. It is further maintained that the petitioner remained silent for refund of the amount in question for a number of years, therefore, not only the petitioner's claim for refund but also the contract cannot be awarded to him for the balance period as of right.

6. It is further submitted that the petitioner may participate in the impugned auction and his bid shall be considered on merits.

7. The learned counsel for Respondent No. 2 whilst reiterating the contents of the report and parawise comments has questioned the maintainability of the petition by, inter alia, submitting that the petitioner is guilty of concealment of material facts. Further submits that the recommendation of the Committee for refunding the amount in question or awarding the contract to the petitioner for the un-expired 19-months period as and when the policy of Respondent No. 1 was changed was not at any time approved by the Board of Management of Respondent No. 2. As such the petitioner does not have a vested right to claim the relief prayed for in the petition.

8. Further submits that the petitioner's claim has become barred by time. Contends that the petition is even otherwise liable to be dismissed as the petitioner at no point in time challenged the 2008 Policy Decision of Respondent No. 1 before any Court of law. Further contends that the matter is beyond the control of Respondent No. 2 as neither it nor the petitioner can ignore the provisions of the Rules, ibid, which are mandatory in nature.

9. The learned counsel for the petitioner in rebuttal controverts the stance of Respondent No. 2 and submits that at no point in time did Respondent No. 2 deny the petitioner's right.

10. The learned Addl. A-G submits that the petition is hit by laches inasmuch as the petitioner did not challenge the decision of Respondent No. 2 for cancellation of its contract at the relevant time nor did the petitioner file a suit for recovery of the amount in question. Moreover, the petitioner did not challenge the Notification dated 30.07.2008 at the relevant time and even not through the instant petition. The claim of the petitioner has, even otherwise, become barred by time. Further submits that parties cannot contract out of statute. In the instant case they are bound by the provisions of the Rules, ibid. Moreover, Respondent No. 2 has acted in pursuance of the Policy Decisions of Respondent No. 1. Policy Decisions cannot be challenged by way of constitutional petitions.

11. I have considered the arguments of the learned counsel for the parties and the learned Addl. A-G, and have also gone through the record. It is an admitted fact that the contract for collection of parking fee vis-a-vis the Car Park was awarded to the petitioner for a period of three years i.e. from 16.03.2007 to 15.03.2010. On 30.07.2008 Respondent No. 1 promulgated a new policy through Notification No. S.O.(PH)1-10/2008 whereby a direction was issued to all Government Health Institutions/Hospitals (including Respondent No. 2) to have adequate parking facilities for the general public/visitors to Hospitals and to ensure that free parking is provided and the parking stands should be duly manned and guarded by the Hospital staff. The Government Health Institutions/Hospitals were further directed to coordinate with the Local Traffic Police Authorities for ensuring smooth flow of traffic in and around the health facilities. As a consequence Respondent No. 2 took steps to provide free parking to the general public/visitors to the Hospital (Respondent No. 2). In this respect a committee was formed and in its meeting held on 12.08.2008 the committee discussed the modalities for ensuring free parking to the general public. The contract of the petitioner also came under discussion and in view of the fact that the petitioner had invested the sum of Rs.4,65,000/- for renovation of the Car Park, it was felt that the petitioner should be accommodated by way of adjustment of the contract price. Thereafter the matter seems to have gone into cold storage. However, in the year, 2011 the petitioner agitated the matter again. As a consequence the Committee was constituted by the Finance and Planning Committee of Respondent No. 2 in its meeting held on 08.08.2011. The Committee after going through the facts of the case came to the following conclusion and recommended as under:--

"1. The contract of Car Parking was cancelled w.e.f. 08.08.2008 and the contractor deposited Rs. 1,415,834/-(including amount of security) as contract money against due amount of Rs. 1,550,069/- from 14.03.2007 to 07.08.2008. the amount less deposited Rs. 134,235/- may be recovered from the contractor.

2 ...........

1. The contractor of Car Parking has invested Rs.465,000/- for three years but he obtained benefit of investment for one years and five months. An amount of Rs.245,416/- is refundable to the contractor for the period he had not obtained the benefit of his investment which to be refunded or he may be allowed to complete his remaining contract period if at later stage Government decided to auction Car Parking with charges of parking...."

2. In the year 2012 the Finance and Planning Committee of Respondent No. 2 reviewed the above mentioned recommendations of the Committee and in its meeting held on 03.10.2012 decided as under:

"Agenda Item No. 13 of Finance & Planning Committee meeting dated 8.11.2010 regarding Contract of Car Parking and Cycle Stand.

The matter was discussed in detail. It was decided that the amount of Rs. 5,93,795/- as finalized in the report of the inquiry committee may after due verification, be paid to the Contractor from Receipts of Allied Hospital. His request to allow him to complete the remaining contract period of one year and seven months at a later stage when Government might decide to resume auctioning of Car Parking on payment basis was not deemed tenable. However, if such an eventuality does ever occur in future, his request might be considered on merit."

1. It is, however, not clear from the record whether these recommendations were accepted by the Board of Management of Respondent No. 2 or not. The fact, however, remains that the amount in question (Rs. 111,181/-) was not refunded to the petitioner and since the policy of Respondent No. 1 for providing free parking to the general public/visitors to hospitals remained unchanged no progress was made in the matter.

2. Subsequently, due to the National Elections of 2013 when the Caretaker Government of the Punjab was formed it changed the policy of providing free parking to hospital visitors. Consequently, through Notification No. S.O.(PH)1-10/2008 dated 16.04.2013, Government Health Institutions/Hospitals were directed as under:--

"The competent Authority has been pleased to withdraw facility of free car/motorcycle/cycle parking in all the Government Hospitals as circulate by the Government vide Notification of even number dated July, 30, 2008, September, 25, 2008, December, 18, 2008, March 11, 2009 and February 22, 2010.

1. All Hospital administrations are directed to immediately take necessary action for auction of the parking stands/lots available in the premises of hospitals/medical colleges strictly in accordance with the PPRA Rules.

2. The competent authority has further been pleased to approve the parking rates as notified by the Lahore Parking Company from time to time for car/motorcycle/cycle parking in all Government Hospitals/Medical Colleges with immediate effect.

3. All measures for safety of the vehicles in lieu of the service charges be taken."

4. Upon coming to know of the change in Respondent No. 1's Policy the petitioner contends that he re-agitated the matter with Respondent No. 2 and demanded that he may be allowed to complete the remaining 19 months of his contract. Respondent No. 2, however, declined to do so and has advertised the auction of the rights of collection of parking fee of Car Park through the impugned advertisement published in various dailies including the daily "Nawa-i-Waqt" of 08.05.2013. The impugned auction is scheduled to be held on 22.05.2013.

5. The petitioner has contended that he has a vested right to be awarded the contract so that he can complete the unexpired period of his earlier contract as per the recommendations of the Committee. It is the case of the petitioner that he has been denied the benefits of investment for a number of years and a promise was held out to him that as soon as the policy of Respondent No. 1 changes he would be awarded the contract for the remaining period.

6. On the other hand it is the case of Respondent No. 2 that they are bound by the provisions of the Rules, ibid, which provisions are mandatory. Respondent No. 2 is, therefore, required to award the rights of collection of parking fee only by way of calling for fresh tenders by public auction. No contract can, therefore, be awarded to the petitioner. It has been further contended that since the petitioner remained silent for a number of years and did not agitate the matter, therefore, his claim has become barred by time.

7. The controversy pertains to procurement of goods and services in the public sector. The Federal as well as the Provincial Governments in order to ensure transparency and accountability in matters of public procurement of goods as well as services have promulgated various laws viz the Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004 at the Federal level and the Punjab Procurement Regulatory Authority Act, 2009, and the Rules, ibid, in the Province of the Punjab. All Procuring Agencies as defined by Section 2 (l) of the Act, ibid, are required to follow the Act and the Rules, ibid for Public procurement as defined under Section 2(n) of the Act, ibid. To better appreciate the position both provisions of law are being reproduced hereunder:--

"2(l) "Procuring Agency" means--

(i) A department or office of the Government;

(ii) A District Government; or

(iii) An authority, corporation, program, project, body or organization established by or under a Provincial law or which is owned or controlled by Government of the Punjab."

2(n) "Public procurement" means acquisition of goods, services or rendering of works financed wholly or partly out of the Public Fund, unless excluded by the Government;"

1. Rules 3 & 4 of the Rules, ibid, provide as under:--

"3. Scope and applicability.--Save as otherwise provided, these rules shall apply to all procurements made by all procuring agencies of the Government of the Punjab whether within or outside the Punjab.

1. Principles of procurements.--Procuring agencies, while engaging in procurements, shall ensure that the procurements are conducted in a fair and transparent manner, the object of procurement brings value for money to the agency and the procurement process is efficient and economical."

2. As will be evident Respondent No. 1 is a Procuring Agency within the meaning of Section 2 (l) of the Act, ibid. The provisions of the Act and the Rules, ibid, are mandatory in nature for all Procuring Agencies. Respondent No. 2 is, therefore, bound to follow the procedure as laid down in the Act and the Rules, ibid, in matters of Public procurement. The method of procurement has been spelled out in great detail in the Rules, ibid, which inter alia provide for public advertisement and envisage a process of open bidding. There is no provision for negotiation or award of contract by way of private negotiations. Reliance in this regard is placed on a judgment of the Hon'ble Supreme Court reported as "Mujahid Muzaffar and others vs. Federation of Pakistan and others" (2012 SCMR 1651).

3. Even otherwise, it is settled law that parties cannot contract out of statute. Moreover, there is nothing on the record to show that the recommendations of the Committee or the Finance and Planning Committee of Respondent No. 2 were approved by the Board of Management of Respondent No. 2.

4. In view of the above, the petitioner's claim for award of the contract for collection of parking fee in respect, of the Car Park for the balance 19 months of his earlier contract is neither sustainable nor tenable.

5. This Court, however, cannot ignore the fact that the petitioner has been out of pocket for a number of years to the extent of Rs. 111,181/-. Respondent No. 2 has not refunded this amount to the petitioner, therefore, whilst holding that the petitioner is not entitled to be given the contract for collection of parking fee in respect of the Car Park for the balance 19 months of his earlier contract, as of right, it is directed that Respondent No. 2 shall refund the amount of Rs. 111,181/- to the petitioner, after due verification, plus mark-up at the bank rate forthwith.

6. It is, however, observed that the petitioner may participate in the impugned auction, if so advised, and Respondent No. 2 shall not reject the petitioner's bid in view of his past history.

7. The petition is accordingly disposed of in the above terms with no order as to costs.

(R.A.) Petition disposed of

PLJ 2014 Lahore 16

Present: Abdus Sattar Asghar, J.

GHULAM MUHAMMAD and another--Petitioners

versus

Mian ABDUL KARIM (deceased) through LRs--Respondents

C.R. No. 18 of 2010, decided on 12.9.2013.

Punjab Pre-emption Act, 1991 (IX of 1991)--

----S. 13--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Preferential right of show-camption qua petitioners and lawful performance of talb-e-muwathibat and talb-e-ishhad--Minor and immaterial discrepancies in statements of prosecution witnesses do not mar credibility of respondent's evidence--Notice of talb-e-ishhad while appearing in witness box--Validity--Despite lengthy searching cross-examination nothing material elicited in favor of petitioner--Petitioner had not been able to point out any material inconsistency in testimonies of PWs with regard to performance of talb-e-muwathibat and talb-e-ishhad--There was nothing on record to mar credibility or truth fullness of the PWs--Petitioners had failed to establish that impugned judgments and decrees passed by Courts below suffer from misreading or non-reading of evidence--Concurrent findings on basis of salutary appreciation of evidence do not call for any interference by High Court in exercise of its revisional jurisdiction. [P. 21] C & D

Punjab Pre-emption Act, 1991 (IX of 1991)--

----S. 13(1)--Talb-e-muwathibat--Physical presence of any witness besides informer and show-camptor at time of performance of talb-e-muwathibat--Validity--Meeting of informer and show-camptor comprising two persons is sufficient with in meaning of sitting or meeting to perform talb-e-muwathibat in terms of S. 13(2) of Act. [P. 20] A

Punjab Pre-emption Act, 1991 (IX of 1991)--

----S. 13(2)--Requirement of talb-e-muwathibat is immediate demand by show-camptor without delay on receiving information of sale--Preemptor was not required to make any resort to collect a group of more than two persons to make talb-e-muwathibat after receiving knowledge of the sale from the informer--Validity--Scheme of legislation had prescribed the presence of two truthful witnesses at stage of making of talb-e-ishhad and not at stage of talb-e-muwathibat--In instant case talb-e-muwathibat was not performed in a lawful manner is devoid of any force and thus repelled--Revision was dismissed. [P. 20] B

Mr. Muhammad Saleem Akhtar, Advocate for Petitioners.

Mr. Abdul Wahid Chaudhry, Advocate for Respondents.

Date of hearing: 12.9.2013.

Order

This civil revision u/S. 115 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 15.12.2008 passed by learned Civil Judge 1st Class Pakpattan Sharif whereby suit for possession through pre-emption lodged by respondent Mian Abdul Karim (now deceased and represented by legal heirs) was decreed in his favour against the petitioners. It also assails the judgment and decree dated 8.10.2009 passed by learned Additional District Judge Pakpattan Sharif whereby petitioners' appeal was also dismissed.

1. The learned trial Court in its impugned judgment observed that Mian Abdul Karim pre-emptor having superior right of pre-emption has established the lawful performance of Talab-e-Muwathibat and Talab-e-Ishhad in terms of Section 13 of Punjab Pre-emption Act, 1991. The learned appellate Court after re-examining the evidence maintained the findings of the learned trial Court.

2. Learned counsel for the petitioners has argued that Mian Abdul Karim pre-emptor failed to prove Talab-e-Muwathibat and Talab-e-Ishhad by producing reliable ocular and documentary evidence; that the findings of the learned trial Court are illegal, based on misreading and non-reading of evidence; that the learned appellate Court also failed to scrutinize the parties' evidence and mainly depended on the findings of the learned trial Court instead of applying its own judicious mind; that the impugned judgments and decrees passed by learned Courts below are untenable and liable to set aside.

3. It is resisted by learned counsel for the respondents with the contentions that respondents' predecessor Mian Abdul Karim pre-emptor has established his preferential right of pre-emption qua the petitioners and lawful performance of Talab-e-Muwathibat and Talab-e-Ishhad in terms of Section 13 of Punjab Pre-emption Act, 1991; that minor and immaterial discrepancies in the statements of PWs do not mar credibility of the respondent's evidence; that concurrent findings of the learned Courts below based on salutary appreciation of the evidence need not to be interfered with in exercise of revisional jurisdiction; that the impugned judgments and decrees do not suffer from any factual or legal infirmity or material irregularity therefore petitioners have no case to invoke the revisional jurisdiction of this Court.

4. Arguments heard. Record perused.

5. At the outset if may be expedient to reproduce the provision of Section 13 of Punjab Pre-emption Act, 1991 for ready reference which reads below:--

"13. Demand of pre-emption.--(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely--

(a) `talb-i-muwathibat';

(b) `talb-i-ishhad'; and

(c) `talb-i-khusumat'.

Explanation.--

I `Talb-i-muwathibat' means immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption.

Note:-Any words indicative of intention to exercise the right of show-camption are sufficient.

II `Talb-i-ishhad' means demand by establishing evidence.

III `Talb-i-khusumat' means demand by filing a suit.

(2) When the fact of sale comes within the knowledge of pre-emptor through any source, he shall make talb-i-muwathibat.

(3) Where a pre-emptor has made talb-i-muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make talb-i-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption:

Provided that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make talb-i-Ishhad in the presence of two truthful witnesses.

(4) Where a pre-emptor has satisfied the requirements of talb-i-muwathibat under sub-section (2) and talb-i-ishhad under the sub-section (3), he shall make talb-i-khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."

1. As regards Talab-e-Muwathibat bare reading of the averments in the plaint transpires that respondent Mian Abdul Karim (deceased) has categorically mentioned that he got the knowledge of the impugned sale on 2.10.1999 through Allah Ditta at his residence situated at Haveli Lakha Tehsil Depalpur when he immediately pronounced his intention to pre-empt the sale as Talab-e-Muwathibat. He reiterated so while appearing in the witness-box as PW-6. Allah Ditta alleged informer appeared in the witness-box as PW-4 and fully corroborated the case of the pre-emptor as regards date, time and place of imparting the information to Abdul Karim as well as immediate performance of Talab-e-Muwathibat by the pre-emptor.

2. It is vehemently argued by learned counsel for the petitioners that as per averments in the plaint Talab-e-Muwathibat was made by the pre-emptor in the presence of informer only and no third person in the said meeting was present and that presence of alleged informer and pre-emptor does not constitute lawful sitting or meeting (Majlis) as envisaged under Section 13(1) of the Act ibid. I am afraid learned counsel for the petitioners is misconceived. The word meeting' is defined in Oxford Advanced Learner's Dictionary New 8th Edition as "a situation in which two or more people meet together because they have arranged it or by chance". In the said Dictionary the wordsitting' is defined as "a period of time that a person spends sitting and doing an activity". The words sitting or meeting (Majlis) used in Section 13(1) Explanation I of the Act ibid do not require a group of more than two persons. Bare reading of the provision of Section 13(1) Explanation I of the Act ibid makes it crystal clear that law did not require physical presence of any witness-besides the informer and the pre-emptor at the time of performance of Talab-e-Muwathibat. Meeting of informer and pre-emptor comprising two persons is sufficient within the meanings of sitting or meeting (Majlis) to perform Talab-e-Muwathibat in terms of Section 13(2) of the Act ibid. Needless to say that requirement of Talab-e-Muwathibat is immediate (jumping) demand by the pre-emptor without delay on receiving information of the impugned sale. It does not require assembling or gathering of more than two persons. Certainly pre-emptor is not required to make any resort to collect a group of more than two persons to make Talab-e-Muwathibat after receiving knowledge of the impugned sale from the informer. Needless to say that in the provision of Section 13 of the Act ibid the scheme of legislation has prescribed the presence of two truthful witnesses at the stage of making of Talab-e-lshhad and not at the stage of Talab-e-Muwathibat. In the attending circumstances, argument of the learned counsel for the petitioners that in this case Talab-e-Muwathibat was not performed in a lawful manner is devoid of any force and thus repelled.

3. As regards Talab-e-Ishhad pre-emptor has categorically alleged in Para No. 7 of the plaint that notices of Talab-e-Ishhad were got scribed and sent to the petitioners through registered post A.D. receipts on 8.10.1999 in presence of truthful witnesses namely Allah Ditta, Ahmad Din and Muhammad Ahmad. Petitioners have denied the receipts of notices of Talab-e-Ishhad through post. In order to discharge the burden of proof respondent/pre-emptor produced Muhammad Islam postman (PW-1) who categorically stated that while posted at Post Office Chak Baidi he received registered Post No. 672 dated 11.10.1999 and disbursed the same upon Ghulam Muhammad Petitioner No. 1 on 13.10.1999. Simultaneously Ghulam Qadir postman (PW-3) deposed that he had received registered Post No. 670 on 10.10.1999 which was disbursed by him upon Muhammad Anwar (Petitioner No. 2) on 12.10.1999. Allah Ditta (PW-4) and Ahmad Din (PW-5) the alleged witnesses of the notices of Talab-e-Ishhad while appearing in the witness-box categorically stated that on 8th they had accompanied the pre-emptor to the deed-writer and got scribed two notices Ex.P-4 and Ex.P-5 bearing their thumb-impressions and signatures which were sent to the petitioners by Abdul Karim pre-emptor through registered post. Despite lengthy searching cross-examination nothing material elicited in favour of the petitioners. Learned counsel for the petitioners has not been able to point out any material inconsistency in the testimonies of the said PWs with regard to performance of Talab-e-Muwathibat and Talab-e-Ishhad. There is nothing on the record to mar the credibility or truthfulness of the said PWs.

4. Crux of above discussion is that the petitioners have failed to establish that the impugned judgments and decrees passed by learned Courts below suffer from misreading or non-reading of evidence. Concurrent findings of facts recorded by the learned Courts below on the basis of salutary appreciation of evidence do not call for any interference by this Court in exercise of its revisional jurisdiction. I do not find any legal or factual infirmity or jurisdictional error in the impugned judgments and decrees.

5. For the above reasons, this civil reivsion having no merit is dismissed.

(R.A.) Revision dismissed

PLJ 2014 Lahore 21

Present: Abdus Sattar Asghar, J.

BINYAMEEN KHALIL--Petitioner

versus

RIAZ AHMAD RAHI--Respondent

C.R. No. 128 of 1998, decided on 3.10.2013.

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

----O. XXXVII, R. 4--Limitation Act, 1908, Art. 181--Requirement for filing an application for leave to appear and defend--Non supplying copy of plaint at time of effecting service of summon--Validity--No limitation had been provided for filing of an application under Order 37 Rule 4 of CPC, therefore, matter would be governed by Art. 181 of Limitation Act which prescribes limitation of 3 years--Trial Court erred in law while rejecting petitioner's application as well as while passing judgment and decree and thus failed to exercise its jurisdiction vested under law--Impugned order suffering from jurisdictional error, factual and legal infirmity was unsustainable in eyes of law--Revision was allowed. [P. 23] A

Ch. Muhammad Ali Binyameen, Advocate for Petitioner.

Nemo for Respondent, proceeded against ex-parte.

Date of hearing: 3.10.2013.

Order

This civil revision u/S. 115 of the Code of Civil Procedure, 1908 is directed against the order dated 11.12.1997 passed by learned Additional District Judge Sheikhupura whereby petitioner's application under Order XXXVII, Rule 4 of the Code of Civil Procedure, 1908 for setting aside the judgment and decree dated 19.6.1997 has been dismissed.

1. Brief facts leading to this Civil Revision are that respondent lodged a suit for recovery on 14.5.1997 under Order XXXVII, Rule 1 of the Code of Civil Procedure, 1908 on the basis of pronote dated 29.11.1995. Prescribed summon issued on 15.5.1997 was duly served upon the petitioner on 22.5.1997 for the next date of hearing i.e. 3.6.1997. Petitioner appearing before the learned trial Court through counsel on 3.6.1997 lodged an application for leave to appear and defend the suit. The learned trial Court dismissed the petitioner's said application and decreed the respondent's suit vide judgment and decree dated 19.6.1997. Being dissatisfied petitioner lodged an application under Order XXXVII, Rule 4 of the Code of Civil Procedure, 1908 for setting aside the judgment and decree dated 19.6.1997. The said application was also dismissed by the learned trial Court vide impugned order dated 11.12.1997.

2. It is argued by learned counsel for the petitioner that the impugned order is against law and facts; that the learned trial Court has failed to exercise its jurisdiction vested under the law; that the learned trial Court has miserably failed to appreciate that notice issued to the petitioner was not accompanied with copy of the plaint which constitutes a special circumstance therefore his application under Order XXXVII, Rule 4 of the Code of Civil Procedure, 1908 was illegally dismissed; that the impugned order dated 11.12.1997 being against law and facts and untenable is liable to set aside.

3. Arguments heard. Record perused.

4. Original prescribed summon issued on 15.5.1997 is available on the record which shows that it was not accompanied with copy of the plaint. Report of the Process Server dated 22.5.1997 available on the backside of the said summon also reveals that copy of the plaint was not disbursed upon the petitioner at the time of effecting service therefore petitioner's service on the said summon could not be termed as a `proper service' and period of limitation under Article 159 of the Limitation Act, 1908 for application for leave to appear and defend the suit could not be computed from the said date i.e. 22.5.1997 and petitioner's application for leave to appear and defend the suit lodged on 3.6.1997 could not be rejected as barred by limitation. Reference be made to Muhammad Amin vs. Ali Ahmad (1986 CLC 2236 (Lahore). Needless to say that in the absence of disbursing any copy of the plaint at the time of service of summon petitioner was not expected to furnish his defence plea in application for leave to appear and defend the suit. In the circumstances of this case, findings of the learned trial Court in its judgment dated 19.6.1997 that the petitioner has neither denied taking of loan nor execution of the pronote in the contents of the application for leave to appear and defend the suit are unfounded and devoid of any force. Learned trial Court therefore fell in error while declining petitioner's application to defend the suit and passing a decree in favour of the respondent on the basis of unrebutted claim set-forth in the plaint.

5. The sole requirement for filing an application under Order XXXVII, Rule 4 of the Code of Civil Procedure, 1908 is to demonstrate a special circumstance so as to enable the Court to set aside the decree. In this case petitioner has pointed out a special circumstance i.e. non-supplying the copy of the plaint at the time of effecting service of summon. Bare reading of the impugned order dated 11.12.1997 reveals that the learned trial Court has not taken notice of the above quoted special circumstance involved in this case. It is important to note that no limitation has been provided for filing of an application under Order XXXVII, Rule 4 of the Code of Civil Procedure, 1908 therefore the matter would be governed by Article 181 of the Limitation Act, 1908 which prescribes limitation of 3 years. The learned trial Court therefore erred in law while rejecting petitioner's application under Order XXXVII, Rule 4 of the Code of Civil Procedure, 1908 as well as while passing the judgment and decree dated 19.6.1997 and thus failed to exercise its jurisdiction vested under the law. The impugned order dated 11.12.1997 suffering from jurisdictional error, factual and legal infirmity is unsustainable in the eye of law.

6. For the above reasons this civil revision is allowed and the impugned order dated 11.12.1997 passed by learned trial Court is set aside. Consequently, the application under Order XXXVII, Rule 4 of the Code of Civil Procedure, 1908 is accepted and in result thereof judgment and decree dated 19.6.1997 is also set aside and the case is remanded to the learned trial Court to furnish an opportunity to the petitioner, after providing copy of the plaint, to file afresh an application for leave to defend within 10 days and then proceed with the matter in accordance with law.

(R.A.) Revision allowed

PLJ 2014 Lahore 24 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad, J.

DEFENCE HOUSING AUTHORITY, ISLAMABAD through its Secretary and another--Appellants

versus

MALIK KHALID MAHMOOD--Respondent

F.A.O. No. 147 of 2012, heard on 25.4.2013.

Punjab Consumer Protection Act, 2005--

----Ss. 2(K), 8, 14, 31(e) & 34--Lawyers Cooperative Housing Society was merged into DHA--Order of Consumer Court was challenged--Activity of estate development undertaken by consumer falls within definition of service and stops from making any claim for leveling plot--Being member of society development charges had been paid but unable to construct a house--Entitlement of damages as awarded by Consumer Court--Validity--Necessary for planning and development and for providing housing facilities--Protection and promotion of rights and interest of consumers--Held: Housing, construction and building activity carried by a private person or statutory body was service within meaning of definition of S. 2(K) of PCPA, 2005--Member cannot be offered a piece of land in a quagmire on hillock difficult to ascend even for professional climber--Consumer having paid development charges was entitled to piece of land which was construction worthy, where foundation of a building can be laid without further substantial change in landscaping--No option but to hold that presiding officer of Consumer Protection Court had rightly directed DHA to level the plot and to make it construction worthy free of cost--Section 31(e) of PCPA empowers Consumer Court to order DHA to pay reasonable compensation to the consumer for any loss suffered due to negligence of consumer--Due to negligence of DHA in developing, leveling and making plot construction worthy, consumer had been unable to construct his house, though he had given the possession and had paid entire amount--Consumer was entitled to compensation and damages--Appeal was dismissed. [P. 27] A & B

Mr. Rashid Mahmood Sindhu, Advocate for Appellants.

Mr. S.A. Mehmood Khan Saddoozai, Advocate for Respondent.

Date of hearing: 25.4.2013.

Judgment

The appellants impugn order dated 01.9.2012 passed by the Presiding Officer Consumer Court, Rawalpindi. The respondent an Advocate by profession and a member of District Bar Association, Rawalpindi was a member of the Lawyers Cooperative Housing Society (LCHS) Rawalpindi. The said society merged into the Defence Housing Authority (DHA) vide agreement dated 16.01.2006. Thus, the respondent became a member of DHA. The respondent was handed over the possession of Plot No. 49, Street No. 4 sector B-1. The respondent vide Exh.D-3 gave the following undertaking:--

"I want to take the possession of my above plot to construct my home where facilities like water/electricity/gas etc. are not available and I will not claim any facility during construction work from DHA."

1. The plot when inspected at the site by the respondent, was found to be a cluster of solid rocks unsuitable for the construction of a house. He made many requests and also issued a legal notice dated 29.10.2010 Exh.P-13 for leveling the site and for making it construction worthy for a house. Having failed in getting the redressal, he filed a claim under Section 25 of the Punjab Consumer Protection Act, 2005 (PCPA, 2005). The claim was opposed by the appellants. Issues were framed. The respondent had his statement recorded as PW.1 and produced the documents Ex.P.1 to Ex.P.14. Appellant No. 2 in support of the version of the appellants appeared as DW.1 and produced the documents Ex.D.1 to Ex.D.3. The learned Presiding Officer of the Consumer Court vide the impugned order dated 01.9.2012 accepted the claim, directed the appellants to level the plot in question to make it construction worthy free of cost and to pay Rs.25,00000/- as damages.

2. It is contended by the learned counsel for the appellants that the Consumer Court has wrongly relied upon AIR 1994 S.C. 787 as the definition of "service" given in the Indian Consumer Protection Act, 1986 is entirely different from the definition given in the PCPA, 2005; that neither the plot is a product nor activity of estate development undertaken by the appellants falls within the definition of service as provided under Section 2(K) of PCPA, 2005; that the undertaking given by the respondent Ex.P.3 estops him from making any claim for leveling the plot in question; that the activity undertaken by the appellants is covered by Punjab Acquisition of Land (Housing) Act, 1973; the leveling of the plot is not responsibility of the appellant and that the grant of damages in favour of the respondent is not warranted by the provisions of Section 15 of PCPA, 2005.

3. On the other hand, it is contended by the learned counsel for the respondent that after merger of the LCHS with DHA, the respondent is entitled to all the claims and services that he had being member of LCHS; that besides paying Rs.1,10,000/- as cost of the land, the respondent has also paid Rs. 1,10,000/- as development charges; that the plots have to be handed over to its members in a construction worthy condition; that Faisal Khan Niazi Appellant No. 2 while appearing as DW.1 has admitted that in the prevalent condition no house could be constructed at the site in question and that it consisted of mounds of sand, huge stones and boulders. In this view of the matter, the respondent is entitled to have a level and construction worthy plot. The respondent having made the entire payment of price of land & development charges in the years 2007 & 2008 has been unable to construct a house thereupon till day. The cost of construction having escalated many times over to that prevalent at the time of handing over the possession in the year 2007, he is also entitled to damages as awarded by the learned trial Court.

4. I have heard the learned counsel for the parties and also gone through the record.

5. The plot in question does not fall within the definition of a product as defined u/S. 2(J) of the PCPA, 2005 and the Sales of Goods Act, 1930. DHA, Appellant No. 1 is a body Corporate as provided under Section 3 of the Defence Housing Authority Islamabad Ordinance, 2005. The amalgamation/merger has been made u/S. 8(2)(H) of the Ordinance, 2005. The functions, the powers and the duties have also been provided u/Ss. 8 & 14 of the Ordinance above. It is registered under the Cooperative Society Act, 1925 and the Cooperative Society Rules, 1927 with the object of purchasing, selling and consolidating lands. In this way, it is amenable to the jurisdiction of the Consumer Court.

6. In order to see whether a judgment from Indian jurisdiction is applicable to the circumstances of the instant case, the definition of `Services' given in (Indian) Consumer Protection Act, 1986 and under PCPA, 2005 will have to be juxtaposed and compared. Section 2(o) of (Indian) Consumer Protection Act, 1986 reads as follows:--

"Service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under or contract of personal service"

Section 2(k) of PCPA, 2005 reads:--

"Services" includes the provision of any kind of facilities or advice or assistance such as provision of medical, legal or engineering services but does not include--

(i) The rendering of any service under a contract of personal service;

(ii) The rendering of non-professional services like astrology or palmistry; or

(iii) A service, the essence of which is to deliver judgment by a Court of law or arbitrator.

Both the Acts are social benefit and consumer benefit oriented. The definition of Service in both the Acts are inclusive and not exclusive or exhaustive. The definition of Housing Scheme given in Section 2(e) of the Acquisition of Land (Housing) Act, 1973, which the learned counsel for the appellant relies upon, renders him little help to pull the respondent's case out of the scope of `Service' and the jurisdiction of the Consumer Courts. The judgment cited as "AIR 1994 SC 787" titled Lucknow Development Authority Vs. M. K. Gupta squarely applies in the instant case.

1. The appellants are, under Sections 8 & 14 of the Act of 2005, the doers of all such acts and things as may be necessary for the planning and development and for providing housing facilities in the specified area. As the title and the preamble of PCPA, 2005 reads, it is meant to provide protection and promotion of the rights and interests of the consumers as is the case of (Indian) Consumer Protection Act, 1986. Thus, it can be safely held that housing, construction and building activity carried on by a private person or statutory body which is the case in hand, is `service' within the meaning of definition of Section 2(k) of PCPA, 2005. The plot allotted to the respondent for the construction of a house is not construction worthy. A member cannot be offered a piece of land in a quagmire on a hillock difficult to ascend even for a professional climber, which the plot in hand so looks from the photographs Exh.P-2 and Exh.P-3. The service rendered by the appellants is an engineering service. It has to be of the normal standard and the quality. The respondent having paid the price of land is entitled to a piece of land and having paid the development charges is entitled to a piece of land which is construction worthy, where foundation of a building can be laid without further substantial change in landscaping. The Appellant No. 2 while subjected to cross-examination has admitted that in the prevalent condition, no house could be constructed thereupon. In this view of the matter, there is no an option but to hold that the learned Presiding Officer of the Consumer Protection Court has rightly directed the appellant to level the plot in question and to make it construction worthy free of cost within a specified period. Section 31(e) of PCPA, 2005 empowers the Consumer Court to order the defendant to pay reasonable compensation to the consumer for any loss suffered by him due to the negligence of the defendant. Sub-section (f) of the same section empowers the Court to award damages where appropriate. Due to the negligence of the appellant in developing, leveling and making the plot construction worthy, the respondent has been unable to construct his house thereupon till day, though he was given the possession in the year 2007 and had paid the entire amount due in the years 2007-2008. He is entitled to compensation and damages. The plot in question is situated in DHA Phase-1, where the land sells like hotcake and the price appreciates with every passing day. The amount of damages fixed at Rs.25,00,000/- is just minimum and paltry. In this view of the matter, the order passed by the learned Presiding Officer is held to be in conformity with law and is upheld. This appeal lacking any merit, is hereby, dismissed.

(R.A.) Appeal dismissed

PLJ 2014 Lahore 28

Present: Mehmood Maqbool Bajwa, J.

MUHAMMAD FAYYAZ (deceased) through LRs etc.--Petitioners

versus

SAEED AHMAD (deceased) through LRs. etc.--Respondents

C.R. No. 2907 of 2012, decided on 12.4.2013.

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

----O. XLI, R. 27--Additional evidence--Suit for specific performance of executory contract of sale--Failed to perform part of contract--Document sought to be produced were essential for decision--Concept of filling gaps and lacunas in lis is no more recognized in civil administration of justice--Validity--Mere omission on part of petitioners to make an application for respondents would not be sufficient to non-suit the petitioner--No executory contract of sale was executed between adversaries and it was a lease agreement--Documents sought to be produced at instance of petitioners record of stamp vendor as well as petition writer in order to substantiate its content can is substantial cause--Application for production of additional evidence was allowed. [P. 30] A & B

Raja Nadim Haider, Advocate for Petitioners.

Ms. Shaista Habib, Advocate for Respondents.

Date of hearing: 12.4.2013.

Order

Suit for specific performance of executory contract of sale was instituted by respondents against present petitioners claiming specific performance of said agreement maintaining that present petitioners failed to perform their part of contract. Since there was contest, therefore, after casting issues and recording evidence, learned trial Court granted decree in favour of respondents, which decree was called in question at the instance of petitioners by preferring an appeal before the learned District Court, in which application under Order XLI, Rule 27 of The Code of Civil Procedure, 1908 was made at the instance of petitioners for production of record of stamp vendor and petition writer, upon which statedly agreement to sell was written. After calling written reply, the said application was declined by the learned District Judge, vide order dated 25.7.2012.

1. Learned counsel for the petitioners contended that the documents sought to be produced at the instance of petitioners were essential for just decision of the case and the learned District Judge while declining the application failed to exercise jurisdiction vested in it. Submitted that the opinion formulated by the learned appellate Court that the documents sought to be produced are not relevant is erroneous keeping in view the stance taken by the petitioners in written statement whereby it was specifically alleged that the property was leased out and period of lease has been terminated. Seeking help from the dictum laid down in "Zar Wali Shah v. Yousaf Ali Shah and 9 others" (1992 SCMR 1778), "Muhammad Younus and 2 others v. Abdul Ghaffar and others" (1998 MLD 1622), "Haji Abdul Ghafoor Akhtar v. Malik Tahir Mukhtar Asghar" (2001 CLC 1721), it was maintained that the application should have been allowed because the concept of filing gaps and lacunas in the lis is no more recognized in civil administration of justice.

On the other hand, learned counsel for the contesting respondents while endorsing the impugned order maintained that since no objection was raised at the instance of petitioners in the written statement regarding execution of lease agreement, therefore, the petitioners are estoped by their words and conduct to raise the plea by production of additional evidence before the learned appellate Court. Banking upon the dictum laid down in "Muhammad Tariq and others v. Mst. Shamsa Tanveer and others" (PLD 2011 Supreme Court 151), it was maintained that the petitioners are estopped to produce additional evidence as no such plea was taken in the written statement. Further maintained that the petitioners failed to point out any compelling circumstances due to which they were unable to produce the additional evidence before trial Court. Likewise, argued, no reason has been assigned why the application was not made before the learned trial Court. In this regard help was sought from the dictum laid down in Government of Khyber Pakhtunkhwa through Secretary, Forest Department v. Devli Kund Forest and others" (2011 MLD 1511).

1. Provision of Order XLI, Rule 27 of The Code of Civil Procedure, 1908 can be pressed into service on the following grounds. (1) Improper refusal of trial Court to admit documents (2) Conclusion of appellate Court feeling the necessity of admission of such documents to enable it to pronounce judgment, and (3) for any other substantial cause. One of the grounds mentioned in Rule 27(1) of said order is that if the that Court has wrongly disallowed the application for additional evidence, reference of which has been made in the dictum laid down in "Government of Kyber Pakhtunkhwa through Secretary, Forest Department v. Devli Kund Forest and others" (2011 MLD 1511) cited at bar by learned counsel for the respondents. However, there are two other grounds as well mentioned in the provision of law under reference, according to which additional evidence can be admitted in evidence, if the Court feels that the evidence is required in order to reach a just conclusion, which opinion admittedly can be formulated by the appellate Court and not by this Court while exercising re visional jurisdiction.

2. However, matter does not end here. There is another ground mentioned in the provision upon which appellate Court can also allow the application of additional evidence if there is "any other substantial cause". In view of the matter, mere omission on the part of petitioners to make an application before learned trial Court as argued by learned counsel for respondents would not be sufficient to non suit the petitioners.

3. Stance taken by learned counsel for the respondents that factum of lease was not agitated in the pleading, therefore, keeping in view the doctrine of "Scendum Ellegata et-probata", petitioners are estopped to make an application for the admission of said documents can not advance the plea of respondents keeping in view para 4 of the written statement in which it was categorically mentioned that the property was leased by the petitioners and lease money was paid and lease period has been terminated.

4. It is the case of petitioners that in fact no executory contract of sale was executed between the adversaries and it was a lease agreement. Documents sought to be produced at the instance of petitioners i.e. record of stamp vendor as well as petition writer in order to substantiate its contention is "substantial cause".

5. Rule of law expounded in "Zar Wali Shah" (1992 SCMR 1778) substantiates the plea of petitioners regarding admission of documents in evidence sought to be produced.

6. In view of discussion, learned District Judge while declining the application failed to exercise jurisdiction vested in it and as such while allowing the revision petition, application for additional evidence is accepted but without any order as to costs.

(R.A.) Petition allowed

PLJ 2014 Lahore 31

Present: Muhammad Ameer Bhatti, J.

MUHAMMAD AFZAL KHAN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, KHUSHAB and 6 others--Respondents

W.P. No. 16474 of 2011, decided on 19.10.2012.

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

----S. 115 & O. XVII, R. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for cancellation of documents was allowed--Direction to file amended written statement--Struck off right to file amended written statement--Amended written statement was allowed--Challenge to--Question of--Maintainability of writ petition--Validity--Trial Court had lawful right to struck off the right to submit amended written statement but it was bounded duty of Court to make reliance on previous written statement--If revisional Court had granted opportunity for filing their amended written statement, it had not committed any illegality or irregularity and not traveled beyond its jurisdiction--Impugned order based on law does not warrant exercise of extraordinary jurisdiction of High Court is in accordance with law and no exception can be drawn to interfere in the order--Petition was dismissed. [P. 32] A, B & C

1991 SCMR 2527, rel.

Shah Muhammad Mehdi Atta Ghazali, Advocate for Petitioner.

Malik Talal Hussain, Advocate for Respondents.

Date of hearing: 19.10.2012.

Order

The brief facts of the case are that the suit for cancellation of documents filed by the petitioner was allowed to be amended by the learned trial Court. Resultantly, amended plaint was filed and respondent was directed to file the amended written statement. The learned trial Court vide order dated 27.10.2009 struck off the petitioner's right to file the amended written statement. Subsequently, the respondent filed the application for grant of opportunity to file the amended written statement, which was dismissed by the learned trial Court vide order dated 12.11.2010. However, the revision petition was accepted by Respondent No. 1 vide order dated 26.04.2011 and the respondent was allowed to file the amended written statement. Through this constitution petition, the petitioner has assailed the order impugned.

1. The contention of the learned counsel for the petitioner is that the right of respondent was rightly struck off by the learned trial Court after granting the proper opportunity to the respondent but he failed to avail the same, therefore, there was no illegality and irregularity in the order of the learned trial Court so as to persuade the learned Revisional Court to set aside the same, thus, the order impugned is not. sustainable at law. He has placed reliance on (PLD 1983 Lahore 448), (PLJ 1933 Lahore 284).

2. On the other hand, the learned counsel for the respondents contends that the power vested in the learned Revisional Court has been exercised within the four corners of Section 115 of the CPC, therefore, this writ petition is not maintainable, as the Court has not travelled beyond its jurisdiction, thus, this constitution petition is not maintainable.

3. I have considered the arguments of the learned counsel for the parties and gone through the record of the case.

4. It is observed that the learned trial Court vide order dated 27.10.2009 had the lawful right to struck off the right of respondents to submit the amended written statement but it was the bounded duty of the Court to make reliance on the previous written statement, already available on the record. This illegality is floating on the surface of the record, therefore, the basic order dated 27.10.2009 was illegal and unlawful. The learned trial Court was under legal obligation to consider the written statement available on the record and must have proceed on the basis of that written statement. Even otherwise, if the Revisional Court has granted the opportunity to the respondents for filing their amended written statement, it has not committed any illegality or irregularity and have not travelled beyond its jurisdiction. Therefore, the order impugned based on the law laid down by the Hon'ble Supreme Court reported as The Secretary, Board of Revenue, Punjab, Lahore and another Vs Khalid Ahmad Khan (1991 SCMR 2527), thus, does not warrant the exercise of the extraordinary jurisdiction of this Court. Therefore, the order passed by the learned Revisional Court is in accordance with law and no exception can be drawn to interfere in the said order. In consequence, this petition is dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 33

Present: Muhammad Farrukh Irfan Khan, J.

MUNIR AHMAD--Petitioner

versus

GHULAM MUHAMMAD, etc.--Respondents

C.R. No. 3726 of 2010, heard on 25.4.2013.

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

----S. 115--Civil revision--Possession of shop was handed over to decree holder through bailiff--Objection petition was dismissed by executing Court--Challenge to--High Court while deciding revision petition had observed that land was towards north of shop constructed--Petitioner had purchased the shop during pending litigation and sale being subject to principle of lis pendence, petitioner had stepped into shoes of vendor against whom a decree for possession was passed by a competent Court of law--Possession of shop had been rightly handed over to decree holder and Courts below had not committed any illegality in dismissing his objection petition and findings recorded by Courts below were accurate result of evidence and High Court had no power to substitute their finding in revisional jurisdiction--Petition was dismissed. [P. 35] A & B

Mr. Muhammad Farooq Qureshi Chishti, Advocate for Petitioner.

Mr. Talal Hussain, Advocate for Respondents.

Date of hearing: 25.4.2013.

Judgment

Through the instant civil revision under Section 115 of the C.P.C., the petitioner has assailed the order dated 13.5.2010 whereby the learned Additional District Judge, Khushab has dismissed his appeal filed against the order dated 1.12.2009 of the learned Civil Judge, Khushab, dismissing his objection petition in execution of decree dated 27.3.1990.

1. Concise facts, leading to the institution of the present petition are that Respondent No. 1/Ghulam Muhammad, who was predecessor-in-interest of Respondents No. 1-A to 1-E, in the year 1982 filed a suit for possession against Respondent No. 2/Khizar Hayat and 11 others in respect of a shop constructed over 3 marlas of land, claiming to have purchased from the said Khizar Hayat by way of a registered sale deed dated 23.8.1965. Rough site map of the shop in dispute was annexed with the plaint. The suit was dismissed by the learned trial Court but in appeal, the same was decreed in favour of Respondent No. 1. The judgment and decree of the lower appellate Court was assailed in a revision petition, which was dismissed by this Court. Thereafter execution petition was filed in which warrants of possession were issued and possession of the shop in dispute was handed over to the decree-holder/Respondent No. 1 by a bailiff deputed by the Executing Court. The present petitioner filed objection petition stating therein that the bailiff of the Executing Court had wrongly handed over possession of his shop which he had purchased through sale deed dated 30.10.1999 and never remained as subject matter of the suit. The objection petition was resisted by the decree-holder by filing contesting written reply. The learned Executing Court framed issues. Both the parties produced evidence in support of their claim. However, the learned Executing Court, vide order dated 1.12.2009 dismissed the objection petition. Being aggrieved, the present petitioner filed appeal, which also met the same fate, vide order dated 13.5.2010, passed by the learned Additional District Judge, Khushab. Hence, the instant revision petition.

2. Learned counsel for the petitioner contended that the impugned order is the result of misreading and non-reading of evidence; that no exact measurement and location of the property in dispute was mentioned in the plaint and possession of the shop of the petitioner has been handed over to the decree-holder, which was not subject matter of the suit; that no authentic document was brought on the record according to which possession sought by the decree-holder could be delivered to him in execution of the decree that the petitioner had purchased land from a joint khata and without partition of the said khata and demarcation of the same by the revenue authorities its possession could not be handed over to Respondent No. 1; that the petitioner has been deprived of his shop, which he has purchased after payment of sole consideration.

3. Learned counsel for the respondents submitted that the land, which was subject matter of the suit was described in the plaint as well as in the rough site map and the bailiff has rightly handed over possession of the disputed shop to the decree-holder. He further submitted that the learned Executing Court as well as the learned lower appellate Court have rightly dismissed the objection petition of the present petitioner. He argued that boundaries of the land sold by Khizar Hayat to Ghulam Muhammad (petitioner) and Atta Muhammad were mentioned in Ex.P.1 and as such no illegality or irregularity has been committed in execution of warrants of possession.

4. Arguments heard. Record perused.

5. Admittedly, Khizar Hayat was owner of 14 marlas of land in a joint khata, out of which he has sold 5 marlas in two pieces, one measuring 3 marlas to Ghulam Muhammad and 2 marlas to Atta Muhammad through a registered sale deed (Ex.P.1) dated 23.8.1965. The sale deed contains the exact location of the land sold to the above said two vendees by meets and bounds. It has specifically been mentioned that 3 marlas of land falling towards North has been sold to Ghulam Muhammad whereas the land situated towards south was sold to Atta Muhammad. The present petitioner during the proceedings of the objection petition in his statement has admitted that the shop possession whereof was handed over to the decree-holder by the bailiff is adjacent to the shop belonging to Atta Muhammad. It is also an admitted fact that the bailiff has executed warrants of possession in respect of shops situated towards north side of the shop of Atta Muhammad. The description of the land mentioned in the sale deed in favour of the objection petitioner is entirely different from that of the land handed over to the respondent in execution of the decree. Needless to mention here that the sale deed in favour of the petitioner was got registered much after the passing of the judgment and decree in favour of Respondent No. 1. It is also noteworthy that in the suit the claim of Respondent No. 1 was that the vendor/Khizar Hayat during the preparation of "killabandies" for the year 1976-77 got the `tatimas' changed and dispossessed the plaintiff/Ghulam Muhammad/vendee from the land in dispute. The suit of the vendee was dismissed but he succeeded in appeal. The judgment and decree of the lower appellate Court was challenged in revision, which was also dismissed by this Court, vide judgment dated 28.3.2001. This Court while deciding the revision petition has also observed that 3 marlas land purchased by Ghulam Muhammad are towards north of the shops constructed by Atta Muhammad. Admittedly, the petitioner has purchased the shop in dispute during the pending litigation and this sale being subject to the principle of lis pendence, the petitioner had stepped into the shoes of the vendor against whom a decree for possession was passed by a competent Court of law.

6. From the evidence available on the record it can safely be inferred that the possession of the disputed shop has been rightly handed over to the decree-holder and both the Courts below have not committed any illegality in dismissing his objection petition and findings recorded by the two Courts below are the accurate result of the evidence on the record and this Court has no power to substitute their findings in its revisional jurisdiction. Resultantly, the instant revision petition is dismissed with no order as to the costs.

(R.A.) Petition dismissed

PLJ 2014 Lahore 36

Present: Mehmood Maqbool Bajwa, J.

MAHMOOD-UL-HASSAN, etc.--Petitioners

versus

Hafiz MUHAMMAD FAROOQ and 2 others--Respondents

C.R. No. 1976 and C.Ms. Nos. 2-C, 3-C of 2012, decided on 12.11.2012.

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

----Ss. 115, 151, O. XXXIX, Rr. 1 & 2--Prima facie--Temporary injunction was granted--Suit for specific performance of contract--Restrained from alienating property--Agreement to sell does not confer any right--Failure to perform part of contract--Validity--Since there is written agreement to sell, existence of which was not a moot point, therefore, respondents got prima facie case--If petitioners were allowed to alienate the property, subject matter of suit, it will introduce stranger in litigation, resulting in multiplicity of litigation, which was not intention of law--Conversely no result will ensue if temporary injunction was granted--No jurisdictional defect can be pointed out within meaning of S. 115, CPC--Petition was dismissed. [P. 38] A

Rao Jabbar Khan, Advocate for Petitioners.

Malik Talal Hussain, Advocate for Applicants-Respondents No. 1 to 3 in CM. No. 2-C of 2012.

Date of hearing: 12.11.2012.

Order

C.M. No. 2-C of 2012.

Seeks permission to place on record the documents referred to in the petition. Allowed subject to all just and legal exceptions.

C.M. No. 3-C of 2012.

1. Dispensation of certified copies of certain documents sought for is allowed subject to all just and legal exceptions.

MAIN CASE.

In the suit for specific performance of contract instituted by Respondents No. 1 to 3 against the petitioners as well as Respondent No. 4, application under Order XXXIX Rules 1, 2 read with Section 151 of the Code of Civil Procedure, 1908 was made praying that present petitioners be restrained from alienating the property subject matter of the suit as the Petitioner No. 1 being special attorney of Petitioner No. 2, who was the owner of the holding, subject matter of the suit, entered into an executory contract of sale on 3.4.2006 for a consideration of Rs.21,50,000/-. It was further pleaded that out of total amount, Rs. 18,00,000/- were paid as earnest money. Petitioners No. 1 and 2 contested the suit and Petitioner No. 2 denied the agency of Petitioner No. 1 contending that he neither authorized nor attorned Petitioner No. 1 enter into a contract of sale with Respondents No. 1 to 3. Learned trial Court after hearing the parties, dismissed the application vide order dated 18.6.2010 formulating the opinion that agreement to sell does not confer any right. Feeling aggrieved, Respondents No. 1 to 3 preferred an appeal against the order dated 18.6.2010, which appeal was allowed restraining the present petitioners from alienating the property subject matter of the suit till the final adjudication of the lis.

1. Being aggrieved by the judgment dated 17.3.2012, of the learned appellate Court, present petitioners have called in question the vires of said judgment contending that Petitioner No. 2 neither attorned nor authorized Petitioner No. 1 to enter into executory contract of sale. Factum of receiving of earnest money as well as execution of agreement to sell was specifically questioned.

2. Learned counsel for the petitioners maintained that since the execution of agreement to sell has been specifically questioned at the instance of petitioners, therefore, Respondents No. 1 to 3 got no prima facie case at all. Further argued that the said agreement to sell is forged and fabricated document, the existence, terms and conditions of which are to be examined by the learned trial Court and as such Respondents No. 1 to 3 got no prima facie case. Alternatively, it was argued that doctrine of lis pendens will come in the aid of Respondents No. 1 to 3.

On the other hand, learned counsel for Respondents No. 1 to 3 contended that since there was a written agreement to sell dated 3.4.2006, therefore, Respondents No. 1 to 3 got prima facie case. Contended that learned appellate Court vide impugned judgment rightly reached to the conclusion that Respondents No. 1 to 3 got a prima facie case.

Repelling the argument of learned counsel for the petitioners, questioning the locus standi of Petitioner No. 1, as special attorney of Petitioner No. 2, it was maintained that suit for declaration and perpetual injunction was instituted by Petitioner No. 2, through, Petitioner No. 1 seeking annulment of agreement dated 3.4.2006 with the allegation that Respondents No. 1 to 3 failed to perform their part of contract and as such said agreement to sell stands terminated. Contended that the relief sought for in the said suit by itself is sufficient to suggest execution of agreement to sell.

1. There is written agreement to sell allegedly executed by Petitioner No. 1 being attorney of Petitioner No. 2. Perusal of contents of the plaint in the suit for declaration instituted by Petitioner No. 2 through Petitioner No. 1 clearly demonstrates that the execution of agreement to sell has not been specifically questioned at the instance of petitioners rather its annulment has been claimed on the base of failure of Respondents No. 1 to 3 to perform their part of contract. Since there is written agreement to sell, the existence of which is not a moot point, therefore, the respondents got prima facie case. If the petitioners are allowed to alienate the property, subject matter of the suit, it will introduce stranger in the litigation, resulting in multiplicity of litigation, which is not the intention of law. Conversely no such result will ensue if the temporary injunction is granted. The learned appellate Court rightly reached to the conclusion and granted temporary injunction. No jurisdictional defect can be pointed out within the meaning of Section 115 of The Code of Civil Procedure, 1908 in the judgment assailed.

2. Pursuant to above discussion, revision petition being devoid of force is hereby dismissed but without any order as to costs.

(R.A.) Petition dismissed

PLJ 2014 Lahore 38

Present: Nasir Saeed Sheikh, J.

MUHAMMAD ASGHAR--Petitioner

versus

MUHAMMAD AMIN and 11 others--Respondents

C.R. No. 386 of 2003, heard on 25.9.2013.

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

----O. XLI, Rr. 21 & 27--Additional evidence--Oral transaction of sale incorporated in mutation--Application for seeking permission to produce additional evidence of two witnesses i.e. lumberdars who had identified deceased as executant of mutation--Beneficiary of transaction of sale incorporated in mutation--Obligation to prove--Necessary two witnesses--Concept of production of additional evidence was only for needs of Court and not for allowing to fill up lacuna--Order of closing rights to cross-examine--Validity--Petitioner did not produce best evidence proving the identification by two witnesses who were lumberdars in whose presence oral transaction of sale was claimed by petitioner to have been incorporated in revenue record--Patwari and Naib Tehsildar who appeared on behalf of petitioner did not categorically state that sale price was paid in presence by petitioner to deceased--Petitioner had failed to prove oral transaction of sale having been genuinely entered by deceased who was proved to suffer from some mental disorder--Therefore, in exercise of revisional jurisdiction High Court did not find it a fit case for interference in concurrent judgments and decree passed by Courts below--Respondents who were admittedly legal heirs of deceased had been rightly granted decree as prayed for by Courts below--Revision was dismissed. [P. 46] A & B

1992 SCMR 1832, 1998 SCMR 671, 2005 SCMR 348 & 2000 CLC 1272, rel.

Mr. Zubda Tul Hussain, Advocate for Petitioner.

Mr. Muhammad Iqbal Mohal, Advocate for Respondents.

Date of hearing: 25.9.2013.

Judgment

One Din Muhammad s/o Gohar the predecessor-in-interest of the respondents died on 31.8.1995. He was admittedly the owner of land measuring 20 kanals 9 marlas described in the plaint. The petitioner claimed a Mutation No. 194 dated 12.4.1995 Ex. D-2 in his favour of the land measuring 20 kanals 9 marlas owned by the said Din Muhammad, which mutation was incorporated in the revenue record. Having come to know of the said mutation the Respondent Nos. 1 to 4 instituted a suit before the learned Civil Judge, Narowal seeking declaration and cancellation of the Mutation No. 194 dated 12.4.1995 on the ground that late Din Muhammad was suffering from mental disorder and had no mental capacity to enter into any transaction on the date on which the mutation in question was claimed by the petitioner in his favour. It was further contended in the plaint that the alleged oral transaction of sale incorporated in the Mutation No. 194 dated 12.4.1995 was without consideration and was a fake transaction which was outcome of forgery, fraud and misrepresentation and is therefore of no legal effect upon the rights of the respondents/plaintiffs. The possession of the property was also sought by the Respondent No. 1 to 4 in the prayer clause. The suit was contested by the petitioner and in his written statement he claimed that the deceased Din Muhammad was not suffering from any mental disease/disorder as alleged by the plaintiffs/respondents; he was just suffering from heart aliment and died a natural death. The petitioner further claimed that oral transaction of sale incorporated in the Mutation No. 194 dated 12.4.1995 was legally and factually got incorporated by the deceased Din Muhammad of his own free volition in his favour for a consideration of Rs. 150,000/-.

1. The learned Civil Judge, Narowal framed the following issues out of the pleadings of the parties:--

Issues:

1. Whether the plaintiffs have got no cause of action and locus standi? OPD

2. Whether the suit is collusive and as such is not maintainable? OPD

3. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD

4. Whether the deceased Din Muhammad was suffering from mental disease long before his death and as such he was not competent to make the alleged transaction? OPP.

5. Whether the alleged Mutation No. 194 is the result of fraud and mis-representation, coercion and undue influence, if so, whether the same is liable to be set aside? OPP

6. Relief.

7. After production of the oral as well as documentary evidence by the parties the learned Civil Judge, Narowal recorded crucial findings on Issues No. 4 & 5 in favour of the respondents/plaintiffs and decreed the suit in their favour through the judgment and decree dated 26.6.2002. The Mutation No. 194 dated 12.4.1995 was accordingly declared null and void, result of fraud and held to be liable to cancellation.

8. The petitioner preferred an appeal against the judgment and decree of the learned Civil Judge which appeal came up for hearing before a learned Additional District Judge Narowal. The learned first Appellate Court confirmed the findings of the learned trial Court on Issue No. 5 which issue was considered as vital issue by the learned First Appellate Court and was also held to be corollary of Issue No. 4. The appeal after upholding the findings of the learned Civil Judge on issues No. 1 & 2 as well as accordingly dismissed by the learned Additional District Judge through judgment and decree dated 4.3.2003.

9. Through the instant civil revision the judgments and decrees passed by the two Courts below have been assailed.

C.M. No. 1132-C of 2003

1. It is argued by the learned counsel for the petitioner at the very outset that the petitioner has moved an application under Order 41 Rule 27 of CPC for seeking permission to produce additional evidence of two witnesses i.e. lumberdars who had identified the deceased Din Muhammad as the executant of the mutation in question. This prayer was made through C.M. No. 1132-C of 2003 by the petitioner. The learned counsel for the petitioner argued that in order to prove the bona fide transaction in favour of the petitioner as incorporated in the Mutation No. 194 dated 12.4.1995, the production of two lumberdars i.e. Imdad Ali and Muhammad Ashraf be allowed. The learned counsel argued that the production of two lumberdars who have identified the deceased Din Muhammad is essential for the fair and just administration of justice and for the factual decision of the case.

2. The learned counsel representing the respondents has seriously contested this C.M. and has argued that the petitioner was allowed sufficient opportunities to produce his evidence before the learned trial Court and in view of the law that he was the beneficiary of the alleged transaction of sale incorporated in the Mutation No. 194 dated 12.4.1995 it was his legal obligation to have proved the due incorporated of the oral transaction of sale in the revenue record. The learned counsel argued that having failed to avail the said opportunities before the two forums below it was not a case in which this Court may consider the production of those two witnesses necessary for the decision of the instant civil revision. The learned counsel for the respondents argued that the concept of production of additional evidence is only for the needs of this Court and not for allowing the petitioner to fill up the lacunae in his case after so many years. The learned counsel for the respondents relied upon the judgments reported as Hakim Khan vs. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832), Muhammad Siddique vs. Abdul Khaliq and 28 others (PLD 2000 SC 20), Abdul Hameed and 14 others vs. Abdul Qayyum and 16 others (1998 SCMR 671), Shtamand and others vs. Zahir Shah and others (2005 SCMR 348) and Maqsood Ahmed vs. Muhammad Hussain (2000 CLC 1272) in support of his contentions.

3. I have considered the contentions of the parties on this C.M.

4. The two Courts below after examining the record as well as the documentary evidence have recorded the finding of facts against the petitioner and have decreed the suit in favour of the Respondents No. 1 to 4. The petitioner was the beneficiary of the transaction in question and it was his obligation to have produced the best evidence to prove the due incorporation of the oral transaction of sale claimed by him in his favour from the deceased Din Muhammad. The necessary two witnesses who were claimed to have identified the deceased Din Muhammad before the revenue authorities at the time of the incorporation of the mutation in question were not produced during the trial for the reasons best known to the petitioner. The case law cited by the learned counsel for the Respondents No. 1 to 4 is fully supportive of the fact that the provisions Order XLI, Rule 21 of CPC for production of additional evidence cannot be allowed to fill up the lacunae to the party who has failed before the two Courts below. The record available before this Court which is a revisional Court is sufficient to enable this Court to analyze as to whether the judgments and decrees passed by the two Courts below have been legally passed or not therefore this C.M. No. 1132-C of 2003 moved under Order XLI, Rule 27 of CPC for production of additional evidence is liable to be dismissed and is accordingly dismissed.

5. The learned counsel for the petitioner has argued the case on merits by contending that two medical certificates Exh. P1 & P2 regarding the mental disorder of the deceased Din Muhammad are the forged documents and have been manoeuvred by the respondents. It is further argued that the witness PW2 Momin Ali s/o Muhammad Ali produced by the respondents has been denied the necessary opportunity of cross-examination to the petitioner during the trial which has resulted into miscarriage of justice. It is further contended that the statement made by the PW-2 could not be accepted as the admission of the fact stated by such witness of the respondents in view of the judgment reported as Mst. Nur Jehan Begum through Legal Representatives vs. Syed Mujtaba Ali Naqvi (1991 SCMR 2300) clause-C. The learned counsel for the petitioner contended that numerous opportunities were granted to the respondents to produce their witnesses by the learned trial Court and the right of cross-examination of the petitioner was closed upon PW-2 in an illegal manner just after three opportunities. It is next argued that the two Courts below have misread and mis-appreciated the evidence available on record.

6. The learned counsel representing the respondents controverted the arguments of the learned counsel for the petitioner by stating that the documents Exh. P-1 & P-2 were duly proved by producing two doctors who had issued those medical prescriptions and the documents were admitted without any objection. The learned counsel for the respondents contends that the right of the petitioner to cross-examine the witness PW-2 was closed through order dated 19.7.2001 passed by the learned Civil Judge and this order was not further assailed at any stage by the petitioner and therefore cannot be allowed to be assailed at the revisional stage. It is further contended by the learned counsel for the respondents that not only two doctors have appeared to prove the medical prescriptions regarding the mental ailment of the deceased Din Muhammad during the period the mutation in question was claimed by the petitioner but the circumstantial evidence produced by the respondents went unrebutted as the statement of PW-2 was not cross-examined who was the neighbourer of the deceased Din Muhammad and proved the factum of his mental disorderliness at the relevant time. It is further argued by the learned counsel for the respondents that even if the medical evidence as produced by the respondents is put at the side. It was a legal obligation of the petitioner to have proved the due entering of an oral transaction of sale by the deceased Din Muhammad with him and the due incorporation of the mutation in question in the Revenue Record. The learned counsel argued that the petitioner produced the Patwari and the Naib Tehsildar both of whom said that no sale price was exchanged between the petitioner and the deceased in their presence at the time of the alleged transaction. The two witnesses who identified the person who appeared as Din Muhammad before the revenue authorities at the time of incorporation of the mutation in question were not produced by the petitioner during the trial. It is further argued that in the absence of proof of payment of the sale price by the petitioner to the deceased Din Muhammad, no lawful sale can be said to have proved by the petitioner in his favour from the deceased taking the case in its extreme form, because proving genuineness of the sale transaction from the vendor deceased is a sine qua non for the alleged vendee who is the beneficiary of the oral transaction, to seek any relief from Court of law on the basis of such a mutation of sale in his favour. A prayer has been made that the two Courts below have recorded concurrent findings of facts against the petitioner therefore the civil revision merits to be dismissed.

7. I have considered the arguments of the learned counsel for the parties and have perused the record.

8. The learned Civil Judge has recorded the detailed findings after discussing the entire evidence on issues No. 4 & 5. In Para-12 of the judgment and decree dated 26.6.2002 the learned Civil Judge analyzed the produced evidence and recorded the findings of facts about the mental suffering of the deceased Din Muhammad. The detailed reasons of the learned Civil Judge recorded in Para-12 are reproduced below:--

"12. The plaintiffs's contention is that Din Muhammad was suffering from the dementia at the time of attestation of mutation and mentally, he was not fit to enter into a contrast of disputed land. The impugned mutation has been attested with the connivance of Patwari Halqa by exercising fraud Ex. P.1 out-door slip of Government Mental hospital Lahore dated 18.4.1995 is a description showing the mental capacity of Din Muhammad. Ex. P 2 is discharge slip of Din Muhammad from Services Hospital Lahore, which speaks that he was suffering from disease dementia. A note at fact of this document Ex. P-2, the context given by Senior Registrar Department of Psychiatry Services Hospital Lahore speaks that the patient was suffering from the Organic Brain Disease which is a progressive Deteriorating illness. It further speaks that he was suffering from the same since more than one year and was not fit to deal rational decision. The statement of PW-2 Moman Ali where he stated that Din Muhammad who was known to him and used to live in front of his house, was suffering mental disease, was not subjected to cross-examination. The other witnesses have categorically stated that Din Muhammad at the time of impugned mutation was suffering from Dementia'. In this view of the matter, the plaintiffs have discharged the onus of proof and having beneficiary of the impugned mutation, the defendants are duty bound to discharge the burden of proof that at the time of attestation of mutation. Din Muhammad was fit mentally and he was able to make rational decision. Muhammad Zulfiqar Naib Tehsildar who has appeared as DW-3 has stated that Din Muhammad has appeared before him but the parties were not known to him personally, he was identified by the witnesses Muhammad Asghir who was appeared as DW-3 has stated that at the time of attestation of mutation Din Muhammad, Ashraf and witnesses were present and he was able to make rational statement. Patwari Halqa who has appeared as DW-1, in cross-examination has deposed that a week back from incorporation of Daily diary report, he came to know about Din Muhammad and prior to this Din Muhammad was not known to him. The defendants have failed to prove by convencing and cogent evidence that Din Muhammad at the time of attestation of impugned mutation was able to make rational decision especially in the presence of Ex. P-2 discharge slip issued by Services Hospital Lahore showing that he was suffering fromDEMENTIA' since more then one year. The statement of PW-2 which goes un-cross-examined by the defendants for the reasons best known to them, will amounts as an admission. The defendants have also failed to examine the witnesses of mutation to prove the genuineness of mutation and mental capacity of Din Muhammad at the time of impugned mutation for the reasons best known to them. As for as the genuineness of Ex. D-1 Daily Diary report is concerned over writing to the extent of"

urdu

is sufficient to hold a view that there is a `HANGIPHAGI' " " hence Ex.D-1 is not confidence inspiring.

The learned Civil Judge also held that the passing of the consideration to the executant of the mutation Ex. D-2 have not been proved by the petitioner and this finding was recorded by the learned Civil Judge in Para-13 in the following words:--

"13. In order to ascertain the genuineness of impugned mutation, an other important aspect of the transaction is passing on of consideration Muhammad Azam Patwari Halqa appearing as D-1 has stated that the consideration was paid in his presence but in cross-examination, he deposed that the consideration was paid in the presence of Tehsildar. Tehsildar who has appeared as DW-2, has failed to state that the consideration was paid in his presence. He states that it was admitted in his presence Muhammad Asghir Defendant No. 1 has stated that the consideration was paid in presence of Tehsildar and witnesses, but to prove the passing-on of consideration, witnesses have not been examined in witness-box for the reasons best known to them. There is such remarkable contradiction about payment of consideration that a man of ordinary prudence can hardly believe the passing-on of consideration which was on essential (essential) ingredient in case of sale which is also a fatal blow to defendants."

1. Thus the learned Civil Judge after appreciating the evidence available on the record decreed the suit in favour of the respondents/plaintiffs.

2. The learned First Appellate Court duly analyzed the findings of the learned Civil Judge and held after relying upon the judgment reported as Hakim Khan vs. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832) that the petitioner was the beneficiary of the challenged transaction and it is he who has to prove the due entering of the transaction by the deceased with him as well as its incorporation in accordance with law in the revenue record. The learned First Appellate Court observed as follows in the judgment and decree dated 4.3.2003:

"Defendants have only produced Patwari DW-1 and Naib Tehsildar DW-2 and Defendant No. 1 himself appeared as DW-3. Din Muhammad was not personally known to the Patwari. He has admitted in his cross-examination that Din Muhammad met to him one week prior to sanctioning mutation and not before. No question of personal knowledge of Naib Tehsildar arised while two lumberdars who identified Din Muhammad before Patwari while he recorded his statement for sanction of mutation has not been produced. To the mind of this Court these two persons were the best available evidence to whom being owner of the village Din Muhammad was known but that evidence has been withheld by the defendants. As against that plaintiffs have provide by adducing cogent evidence as discussed above that Din Muhammad was not fit to enter into any transaction.

In these circumstances defendants failed to prove that Mutation No. 194 was duly sanctioned while Din Muhammad was duly capable to enter in that transaction. Finding of learned trial Court on Issue No. 5 are also up-held."

1. No illegality and misreading of evidence have been pointed out by the learned counsel for the petitioner in the above mentioned findings recorded by the two Courts below. The learned Civil Judge passed the order of closing the right of the petitioner to cross-examine PW-2 vide order dated 19.7.2001 which order was not assailed by the petitioner for a long time till the passing of judgment and decree by the learned Civil Judge on 26.6.2002. The grounds of appeal as annexed with the instant civil revision also do not contain any ground assailing the said order dated 19.7.2001 nor the contents of the judgment passed by the learned First Appellate Court disclose any arguments addressed by the learned counsel for the petitioner against the order dated 19.7.2001 therefore the order dated 19.7.2001 has attained finality. The petitioner did not produce the best evidence proving the identification by the two witnesses who were lumberdars Imdad Ali and Muhammad Ashraf in whose presence the oral transaction of sale was claimed by the petitioner to have been incorporated in the revenue record. The Patwari and Naib Tehsildar who appeared on behalf of the petitioner did not categorically state that the sale price was paid in their presence by the petitioner to the deceased Din Muhammad. There was no background highlighted by the DW-1 that he had previous acquaintance with the deceased Din Muhammad as in his cross-examination he admitted that he did not know the deceased a week prior to the entering of the mutation in question. The Naib Tehsildar Ch. Zulfiqar Ali who appeared as DW2 alleged that he did not know the deceased Din Muhammad personally therefore the production of these two witnesses as DW1 & DW2 who have otherwise not stated to have witnessed the exchange of sale price between the vendor and the vendee, is of no help to the petitioner Muhammad Asghar who appeared as DW3 and stated that the sale price of Rs. 150,000/- was paid by him in the presence of the Tehsildar. This stance taken by the petitioner as DW3 is not supported by the statements of DW1 & DW2. The petitioner had failed to prove the oral transaction of sale having been genuinely entered in his favour by the deceased Din Muhammad who was also proved to be suffering from some mental disorder as well. Therefore in exercise of my revisional jurisdiction I do not find it a fit case for interference in the concurrent judgments and decrees passed by the two Courts below. The respondents who are admittedly the LRs of deceased Din Muhammad have been rightly granted the decree as prayed for by the two Courts below.

2. The instant civil revision being devoid of any merits is accordingly dismissed with costs throughout.

(R.A.) Petition dismissed

PLJ 2014 Lahore 47 [Rawalpindi Bench Rawalpindi]

Present: M. Sohail Iqbal Bhatti, J.

MUHAMMAD SHABBIR--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 490 of 2013, decided on 12.11.2013.

Punjab Rented Premises Act, 2009--

----S. 19(4)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Ejectment petition--Requirements for filing ejectment petition and affect of non-compliance--Petitioner was neither defaulter nor property was subleted--Affidavits submitted in evidence were neither verified nor attested by oath commissioner--Validity--It is settled by now that where the law requires an act to be done or performed in a particular manner, it has to be accordingly done/ performed--Moreover, where an application should be submitted by an affidavit under a statutory provision such application without such affidavit shall not be maintainable; however, the defect in that behalf is curable but only in those cases where a sufficient and reasonable explanation is given by the party for not filing his affidavit with the application for ejectment. [P. 48] A

Malik Ata Rasool Joya, Advocate for Petitioner.

Raja Muhammad Aslam, Advocate for Respondent Nos. 3 to 8.

Date of hearing: 12.11.2013.

Judgment

Through the instant writ petition, the petitioner has assailed the judgment 13.6.2012 passed by the learned Rent Tribunal, Kallar Syedan, District Rawalpindi (Civil Judge 1st Class) and judgment dated 31.1.2013 passed by the learned Addl. District Judge, Rawalpindi.

1. Brief facts giving rise to the filing of this writ petition are that Respondents Nos. 3 to 8 filed a petition for ejectment of the petitioner from 23 shops with upper story in shape of 6 flats situated in Khewat No. 56, Khatooni No. 137 Khasra No. 451/58 measuring one Kanal 10 marlas situated in Kallar Sagwal, Tehsil Kallar Syedan, District Rawalpindi on the ground of default in the payment of rent and subletting the property without permission of the landlords/ respondents. The petitioner filed a petition for leave to defend which was allowed and after framing of issues and recording of evidence an ejectment order was passed by the learned Rent Tribunal vide judgment dated 13.6.2012. The appeal filed against the said judgment was dismissed by the learned Addl. District Judge, Rawalpindi vide judgment dated 31.01.2013.

2. Learned counsel for the petitioner has submitted that the respondents while filing the ejectment petition under the Punjab Rented Premises Act, 2009 failed to submit their affidavits and affidavits of two witnesses alongwith the ejectment petition as stipulated under Section 19(4) of the Punjab Rented Premises Act, 2009. It is further contended that the affidavits submitted in evidence were neither verified by the respondents nor attested by the Oath Commissioner which was the primary requirement of the affidavit. It is also submitted by the learned counsel for the petitioner that the petitioner was neither the defaulter nor the property was sublet to any other person.

3. On the other hand, learned counsel for the respondents has frankly conceded that although affidavits were not submitted with the ejectment petition. The same were submitted through an affidavit in evidence and thus the deficiency was cured.

4. I have heard the learned counsel for the parties and have perused the material available on record.

5. Before going into the merits of the case I would discuss the legal requirements for filing an ejectment petition and affect of its non-compliance as contemplated in Section 19(4) of the Punjab Rented Premises Act, 2009. Section 19(4) of the Act reads as under:

"19(4) If the application is for eviction of a tenant, the landlord shall submit his affidavit and affidavits of not more than two witnesses along with the eviction application."

This is an express requirement of law and it is settled by now that where the law requires an act to be done or performed in a particular manner, it has to be accordingly done/performed. Moreover, where an application should be submitted by an affidavit under a statutory provision such application without such affidavit shall not be maintainable; however, the defect in this behalf is curable but only in those cases where a sufficient and reasonable explanation is given by the party for not filing his affidavit with the application for ejectment. Learned counsel for the petitioner has drawn my attention to the ejectment application and the same has not been accompanied with the affidavits of the respondents and affidavits of two witnesses. Learned counsel for the respondents has conceded that affidavits were not filed with the ejectment application, however, there was a verification upon the ejectment application. A departure from a clear statutory procedure has not been sufficiently explained, therefore, it renders the ejectment petition not maintainable in the eyes of law. I am fortified in my view with observations made in judgments reported in Khalil-ur-Rehman and another Vs. Manzoor Ahmad and others (PLD 2011 Supreme Court 512) and Muhammad Saleem Nawaz Vs. Addl. District Judge, Chishtian and 2 others (PLD 2012 Lahore 217). Besides above, respondents have also not shown sufficient or reasonable explanation for non-depositing 10% penalty of the annual value of the rent.

1. For what has been discussed above, this writ petition is allowed. Both the orders/judgments passed by Respondents Nos. 1 and 2 are set aside. However, Respondents Nos.3 to 8 may file a fresh ejectment petition before the learned Rent Tribunal in accordance with law.

(R.A.) Petition allowed

PLJ 2014 Lahore 49 [Rawalpindi Bench Rawalpindi]

Present: M. Sohail Iqbal Bhatti, J.

CH. RIAZ AHMAD--Petitioner

versus

MUHAMMAD QAISAR ABBAS--Respondent

C.R. No. 263 of 2005, decided on 19.11.2013.

Punjab Pre-emption Act, 1991 (IX of 1991)--

----S. 13--Statutory requirement of talbs were not fulfilled--Validity--It is an established law that performance of "Talabs" is sine qua non for filing a suit for possession through pre-emption, as the right to pre-empt the sale is a feeble right and a delay of 1« hour in making "Talb-i-Muwathibat" had been held to be fatal by the superior Courts--Petitioner/plaintiff has miserably failed to prove the statutory demands of "Talb-i-Muwathibat" and "Talb-i-Ishhad" to pre-empt the sale. [P. 52] A & B

Mr. Hafiz-ur-Rehman Syed and Ch. Haider Ali Khan, Advocates for Petitioner.

Mr. M. Ali Tariq and Mr. Rizwan Haider Bhatti, Advocates for Respondent.

Date of hearing: 19.11.2013.

Judgment

Through this civil revision the petitioner has challenged the judgment and decree dated 17.12.2004 passed by the learned Civil Judge Class-III, Chakwal and judgment and decree dated 16.2.2005 passed by the learned Addl. District Judge, Chakwal.

1. Brief facts giving rise to the filing of this revision petition are that the petitioner filed a Suit for Possession through Pre-emption regarding land measuring four kanals as described in the head note of the plaint situated at Mauza Hattar Tehsil and District Chakwal. The suit had been filed against the defendant through his father being a minor. It was contended by the petitioner that one Zahid Jahan son of Ch. Jahan Khan sold the land mentioned above through Mutation No. 1884 dated 31.12.2001 and ostensible sale price of the suit property was Rs. 1,20,000/- which was excessive and was an attempt to defeat the right of show-camption of the plaintiff. The plaintiff got knowledge of the said sale on 10.01.2002 at about 4.00 p.m. at his house situated in Mohallah Kot Sarfraz Khan, Chakwal through his son Qasim Ali and he suddenly announced his right to pre-empt the sale; that on 14.1.2002 he sent a notice of "Talb-i-Ishhad" through registered post A.D to the defendant and the plaintiff being co-sharer claimed his right of pre-emption through "Talb-i-Muwathibat". The defendant filed the written statement and upon the divergent pleadings of the parties following issues were framed:--

2. Whether the plaintiff has any right of pre-emption qua the defendant? OPP.

3. Whether the plaintiff has fulfilled the requirements of statutory demand? OPP.

4. Whether Rs.1,20,000/- were in fact fixed and paid as the consideration for impugned transaction? OPD

5. If the above issue is not decided in affirmative than what was market value of the suit land at the time of its sale? OPPs.

6. Whether the defendant is entitled to receive incidental charges in case the suit of the plaintiff is decreed? OPD

7. Whether the suit is liable to be dismissed in view of preliminary Objection No. 1 of the written statement? OPD.

8. Relief.

9. The learned trial Court framed Issue No. 2 regarding the fulfillment of statutory requirements of "Talabs" and the onus to prove this issue was upon the plaintiff. The plaintiff himself appeared as PW-1 and reiterated the averments made in the plaint. Similarly, PW-2 namely Ch. Qasim Ali submitted that he informed his father about the disputed sale on 10.1.2002 at about 4.00 p.m., who immediately made a jumping demand to pre-empt the said sale and on 14.1.2002 "Talb-i-Ishhad" was made. PW-3 Zafar Ali Khan admitted his signatures on the Notice Exh.P.1 but PW-1 stated that he went to Katchehry for attestation of Notice in the morning of 10.1.2002 whereas PW-1/plaintiff deposed that he came into the knowledge of the disputed sale at 4.00 p.m. on 10.1.2002, meaning thereby that the demand was not a jumping demand and there is a material contradiction in the statement of PW-1 and the issue was decided against the plaintiff. The mention of other issues is not significant. Thereafter, an appeal was filed which was dismissed by the learned Addl. District Judge on the same ground that there was a material contradiction in the statement of PW-1.

10. Learned counsel for the petitioner argued that the impugned judgments and decrees are result of misreading and non-reading of oral as well as documentary evidence. It was further argued that the findings on Issues Nos. 2, 3, 4 and 5 were against law; both the learned Courts below failed to appreciate that minor discrepancies due to age and time factor should not become an impediment in administration of justice; that findings of both the learned Courts below on Issue No. 2 regarding "Talb-i-Muwathibat" were erroneous and it was wrongly held that the petitioner had knowledge of sale prior to 10.1.2002. Upon this Court's query without adverting to the findings given by both the learned Courts below regarding "Talb-i-Muwathibat", as to whether the postman regarding statutory "Talb-i-Ishhad" was examined as a witness-by the petitioner. Learned counsel for the petitioner frankly conceded that postman was not examined by the petitioner.

11. Learned counsel for petitioner has relied upon the judgment reported in case titled Inayat versus Nadar Khan (2007 S.C.M.R 1702) wherein the concurrent findings of the learned Courts below were set aside by the High Court on the ground that the pre-emptor stated in the plaint that he made "Talb-i-Muwathibat at about 7.00 p.m while in evidence this witness stated that it was "Maghrab Wela" when "Talb-i-Muwathibat" was made by the pre-emptor. The Hon'ble Supreme Court observed that mere fact that in plaint instead of giving time of making "Talb-i-Muwathibat" (Mughrab Wela) it was mentioned 7.00 p.m, would not be sufficient to negate the claim of pre-emptor of making jumping demand. Prayed that this C.R. may be allowed.

12. On the other hand, learned counsel for the respondent has argued that no misreading or non-reading of evidence has been done by both the Courts below. The findings given by both the Courts below on Issue No. 2 should not be interfered as both the Courts below have rightly observed that the appellant had not fulfilled the statutory requirement of "Talbs". Prayed that this civil revision may be dismissed.

13. I have considered the arguments advanced by the learned counsel for the parties and perused the record.

14. It is an established law that performance of "Talbs" is sine qua non for filing a suit for possession through pre-emption, as the right to pre-empt the sale is a feeble right and a delay of 1« hour in making "Talb-i-Muwathibat" had been held to be fatal by the superior Courts. There is material contradictions in the statement made by PW-1. In his examination-in-chief he stated that he came to know about the disputed sale at 4.00 p.m on 10.1.2002 whereas in his cross-examination he stated that he took Zafar PW-3 in the morning of 10.1.2002 to "Katchehry" for attestation of "Notice" and the only inference which can be drawn is that the petitioner was in prior knowledge of the sale. This contradiction in the statement of PW-1 cannot be termed as variation. I am afraid there is a material contradiction in the statement of the petitioner as PW-1. Moreover, it is an admitted fact that postman was not produced by the petitioner and in view of the law laid down in Allah Ditta through L.Rs. and others versus Muhammad Anar (2013 S.C.M.R 866) the Hon'ble Supreme Court has held that even in case of admission of the attorney of the vendee it was obligatory on the pre-emptor to have proved the sending of Notice by leading affirmative evidence which undoubtedly requires the production and examination of the postman. The petitioner/plaintiff has miserably failed to prove the statutory demands of "Talb-i-Muwathibat" and "Talb-i-Ishhad" to pre-empt the sale.

15. For what has been discussed above I do not find it apt to interfere in revisional jurisdiction in the judgments passed by both the Courts below. The revision petition is dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 52

Present: Ali Baqar Najafi, J.

UMAIR AZEEM KHAN--Petitioner

versus

SHARAFAT ALI NASIR, LEARNED JUDGE FAMILY COURT, MIANWALAI and another--Respondents

W.P. No. 1178 of 2011, decided on 8.11.2013.

Maintenance--

----A wife carrying the name of her husband is entitled for maintenance from her husband. [P. 54] A

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Interlocutory order--Maintainability of petition--Interim maintenance--Impugned order is an interlocutory order which cannot be challenged in writ petition as it does not bear characteristics of a final order which is always subject to judicial scrutiny under Art. 199 of Constitution--Petition was dismissed. [P. 54] B

Sardar Faiz Rasool Khan Jalbani, Advocate for Petitioner.

Mr. Qaiser Nawaz Khan Niazi, Advocate for Respondent No. 2.

Date of hearing: 8.11.2013.

Order

Through this constitutional petition, the petitioner seeks setting aside of the impugned order dated 07.12.2010 whereby the interim maintenance of Rs. 3000/- per month was fixed in favour of the Respondent No. 2 by the learned Judge Family Court, Mianwali.

1. The brief facts giving rise to filing of this petition are that on 14.05.2005 the petitioner got married with Respondent No. 2 whereafter Rukhsati took place on 09.11.2008. Since 10.07.2009 the Respondent No. 2 went to her parents house with her brother and did not return. Consequently, the petitioner filed a suit for restitution of conjugal rights against her. The Respondent No. 2 also filed a suit for recovery of maintenance and dowry articles against the petitioner and after failure of pre-trial reconciliation the learned Judge Family Court fixed the interim maintenance @ Rs.3000/- per month vide order dated 7.12.2010.

2. The learned counsel for the petitioner submits that there was no stipulation in the Nikah Nama that if the Respondent No. 2 had failed to live with the petitioner, she will be provided the maintenance; that it was though, mentioned in the Nikah Nama that if relationship between the parties became soar the petitioner will be bound to pay Rs.20,000/- per annum which shows bona fides on his part; that the Respondent No. 2 is not ready to perform her marital obligations, therefore, she is not entitled for maintenance; that under the Islamic Law disobedient and disgruntled wife is not entitled for the maintenance. Places reliance upon Irfan Ahmed versus II-Judicial Magistrate East at Karachi and another (2006 MLD 135 [Karachi]), Muhammad Khalid Javeed versus Mst. Shahida Parveen and 4 others (2007 YLR 1366 [Lahore]) and Firozuddin Ahmad versus Trading Corporation Of Pakistan Ltd. and another (1987 MLD 124 [Karachi]) in support of his claim and prays for acceptance of the petition.

3. Conversely, the learned counsel for the Respondent No. 2 submits that the writ petition is not competent against an interim orders; that the order impugned in this writ petition has been suspended for the last three years, therefore, the Respondent No. 2 is in dire need of maintenance allowance; that: as per the computerized salary slip petitioner earns Rs.22000/- per month at least and has enough financial capacity and prays for dismissal. Places reliance upon Mst. Tahira Perveen versus Syed Hasnain Raza Gillani and another (2011 YLR 266 [Lahore]) and Muhammad Irfan versus Judge Family Court, Sargodha and 2 others (2008 CLC 585 [Lahore]).

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

5. Admittedly, the relationship between the petitioner and Respondent No. 2 is that of husband and wife which exists even today. It is also admitted that interim maintenance fixed vide impugned order has not been provided to the Respondent No. 2. The grounds taken by the learned counsel for the petitioner that the disobedient wife is not entitled for maintenance under the Islamic Law may not be appreciated simply because in the impugned order itself the Respondent No. 2 has made a very reasonable demand of a separate house and maintenance allowance. As the suit, for restitution of conjugal rights is also pending showing intention of the petitioner to take the Respondent No. 2 back to his house, therefore, in my humble opinion the payment of maintenance will not only establish his bona fides but also provided him a good ground to persuade and prevail upon the Respondent No. 2 to change her mind. Even otherwise a wife carrying the name of her husband is entitled for maintenance from her husband.

6. The judgments cited by the learned counsel for the petitioner are not relevant to the facts of the case as none of those cases the maintenance to the wife by the husband was declined in total.

7. The impugned order is an interlocutory order which cannot be challenged in writ petition as it does not bear the characteristics of a final order which is always subject to judicial scrutiny under Article 199 of the Constitution.

8. In this view of the matter this petition has no merits and is, therefore, dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 55 [Rawalpindi Bench Rawalpindi]

Present: M. Sohail Iqbal Bhatti, J.

ZAMURRAD HUSSAIN, etc.--Petitioners

versus

MUHAMMAD YOUNAS, etc.--Respondents

W.P. No. 1676 of 2013, decided on 7.11.2013.

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

----S. 148--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Inherent jurisdiction to extend time for depositing Court fee--Suit for possession--Direction to deposit Court fee regarding submission of stamp duty--Application for permission to deposit stamp duty was dismissed--Petition for correction of judgment and decree was accepted and a period of 30 days was allowed to deposit Court fee--Challenged through writ petition--Validity--Condition for depositing stamp duty within period of 30 days was no more in existence--Suit for possession through partition is one of unique kind of remedies where cause of action is recurring/continuous as title already exists in name of plaintiff as co-owner and purpose of suit for partition is just to separate his share--Held: Courts were vested with inherent jurisdiction u/S. 148, CPC to extend enlarge time for doing of certain act--In instant case no time was fixed in consequence to judgment passed by appellate Court--Petition was dismissed. [Pp. 56 & 57] A, B & C

Mr. Majid Ali Ghazi, Advocate for Petitioner.

Date of hearing: 7.11.2013.

Order

The instant writ petition has been filed against order dated 7.5.2013 passed in civil revision by the learned Addl. District Judge, Rawalpindi Camp at Kahota.

1. The facts giving rise to the filing of the present writ petition are that a final judgment and decree was passed in suit for possession through partition by the learned Civil Judge 3rd Class on 13.4.2010 with the condition that the value of the land per Kanal be fixed at Rs. 1,00,000/- and the plaintiffs (Respondents No. 1 and 2 in the present writ petition) were directed to deposit the requisite Court-fee (erroneously), as the order should have been passed regarding submission of stamp duty) within one month.

2. Aggrieved by the judgment and decree, an appeal was filed which was dismissed on 2.02.2011 by the learned Addl. District Judge, Rawalpindi Camp at Kahota but no time was fixed for the deposit of stamp duty. Thereafter, an application was filed on 6.11.2012 for permission to deposit the requisite stamp duty which was dismissed on 08.12.2012. Aggrieved by the order dated 8.12.2012 a revision petition was filed by the present respondents as well as an application was filed for correction of judgment and decree dated 2.2.2011. The learned Addl. District Judge accepted the application for correction of judgment and decree vide order dated 7.5.2013 and Respondents No. 1 and 2 were allowed to deposit the requisite stamp duty at the rate of 2% and the revision petition directed against the order dated 8.12.2012 was also accepted and a period of 30 days was allowed to respondents to deposit the requisite stamp duty. The instant writ petition has been filed against the order dated 07.5.2013 as having been passed without lawful authority.

3. Learned counsel for the petitioners has argued that once Respondents No. 1 and 2 were directed to deposit the requisite stamp duty through judgment and decree dated 13.4.2010 within a period of 30 days, therefore, after lapse of the said period the suit for possession through partition stood dismissed. It was further argued that there was an inordinate delay in filing of an application before the learned Civil Judge for the permission to deposit the requisite stamp duty.

4. After hearing the arguments of the learned counsel for the petitioner I am of the view that after passing the judgment and decree dated 13.4.2010 an appeal was filed by Respondents No. 1 and 2 in which the judgment was passed by the learned Addl. District Judge, Rawalpindi Camp at Kahota on 02.02.2011 dismissing the appeal, However, a direction was made to the Respondents No. 1 and 2 to deposit the stamp duty at the rate of 3% but in the appellate judgment and decree no time period was fixed. The judgment and decree of the learned trial Court had merged into the judgment and decree passed by the appellate Court on 2.2.2011, therefore, it can be safely observed that the condition for depositing the requisite stamp duty within the period of 30 days was no more in existence. Moreover, I am of the view that suit for possession through partition is one of the unique kind of remedies where the cause of action is recurring/continuous as the title already exists in the name of plaintiff as co-owner and purpose of suit for partition is just to separate his share. Parties cannot be non-suited and cannot be put to the agony of prolonged litigation especially in this case where the condition imposed by the learned Civil Judge had already been merged in the appellate judgment and decree. Even otherwise the Courts are vested with inherent jurisdiction under Section 148 of the CPC to extend/enlarge time for doing of a certain act. (Although in the present case no time was fixed in consequence to the judgment passed by the learned appellate Court.)

5. In this view of the matter, the instant writ petition is dismissed in limine being without merits.

(R.A.) Petition dismissed

PLJ 2014 Lahore 57 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

RAEES PEHLWAN--Petitioner

versus

MUHAMMAD SHAFIQUE, etc.--Respondents

C.R. No. 328 of 2002, decided on 7.10.2013.

Contract Act, 1872 (IX of 1872)--

----S. 2(e)--Suit for specific performance of contract--Dismissed by Courts below--Payment of consideration amount could not be proved--No witness stated that any consideration amount was paid by petitioner to vendor--Agreement to sell was a forged and fabricated document having no legal sanctity--PWs admitted that no bargain was struck down in front of him nor any payment was made in his presence--Validity--It was prime duty of predecessor to prove execution of agreement to sell for consideration but no witness had been produced for that purpose--No payment was made in presence of PW which is contradictory to statement--No specific description of the property was alleged subject matter of the suit--Without establishing that consideration amount is paid no document could be considered as an agreement--Agreement to sell and receipt were duly executed had not been assailed by filing in cross objection by defendants, therefore, they cannot attack findings in instant petition--Findings of First Appellate Court were not sustainable in eye of law and by invoking revisional jurisdiction of High Court--Petition was dismissed. [Pp. 60 & 61] A, B, C & D

PLD 2005 Lah. 218 and 2010 SCMR 334, ref.

Mr. Hameed-uz-Zaman, Advocate for Petitioner.

Mr. Ahmed Mansoor Chishti, Advocate for Respondent.

Date of hearing: 7.10.2013.

Judgment

Through this civil revision, the petitioner has impugned judgment and decree dated 19.03.2002 passed by learned Additional District Judge, Khanpur who dismissed the appeal of the petitioner and upheld the judgment and decree dated 16.04.2001 passed by learned Civil Judge 1st Class, Khanpur whereby the suit of the petitioner was dismissed.

1. Brief facts of the case are that the petitioner filed a suit for specific performance of contract alleging that Abdul Ghani, predecessor-in-interest of the respondents was owner of the land, fully described in head note of the plaint; that Abdul Ghani agreed to sell the suit land to the plaintiff for consideration of Rs.46,500/- out of which Rs.40,000/- were paid to him as earnest money vide agreement dated 25.01.1977 and rapat dated 25.01.1977; that it was agreed between the parties that the sale mutution will be executed in favour of the petitioner after one year on receipt of balance amount of Rs. 6,500/- that despite repeated requests by the petitioner, the sale mutation was not executed by the respondents-defendants; that Abdul Ghani died two years before filing of the suit; that: the respondents-defendants kept on promising transfer of the disputed property in favour of the petitioner but, ultimately, they refused to do the same.

2. The suit was hotly resisted by the respondents by filing written statement. Out of divergent pleadings of the parties, learned trial Court framed as many as six issues including that of relief. After recording oral as well as documentary evidence adduced by the parties, learned trial Court dismissed the suit vide judgment and decree dated 16.04.2001. The appeal preferred thereagainst by the petitioner also met with the same fate vide impugned judgment and decree dated 19.03.2002. Hence this civil revision.

3. Learned counsel for the petitioner inter alia contends that the petitioner had purchased the suit property from Abdul Ghani, predecessor-in-interest of the respondents through an agreement to sell dated 25.01.1977 for consideration of Rs.46,500/- out of which major portion of consideration, i.e. Rs.40,000/- were paid to Abdul Ghani; that after death of Abdul Ghani, the respondents were bound to transfer the property in the name of the petitioner as per the agreement but they refused without any lawful justification; that the petitioner has been able to prove the agreement to sell successfully by producing witnesses but the learned Courts below have not appreciated the evidence produced by the petitioner; that the petitioner is in possession of the properly since 25.01.1977 when the agreement to sell was signed; that the learned Courts below have failed to apply their judicious mind; that the impugned judgments and decrees suffer from material irregularities and misreading and non-reading of evidence, as such, these are not sustainable in the eye of law. Learned counsel for the petitioner prays that this civil revision be allowed, the impugned judgments and decrees be set aside and the suit of the petitioner be decreed.

4. On the other hand, learned counsel for the respondents vehemently opposes this civil revision and supports the impugned judgments and decrees. He has emphasized more on the point that the payment of consideration amount could not be proved by the petitioner as required under the law as no witness of the plaintiff while appearing before the Court states that any consideration amount was paid by the petitioner to the vendor in his presence, therefore, the petitioner-plaintiff could not prove the payment of consideration amount; that the suit was barred by time; that the agreement to sell was a forged and fabricated document having no legal sanctity. Learned counsel for the respondents avers that this civil revision has no force, therefore, it merits dismissal.

5. I have heard the arguments put forth by learned counsel for the parties and also perused the record with their able assistance.

6. In order to substantiate his claim, the petitioner Rais Pehlwan produced PW-1, Muhammad Aslam, PW-2, Muhammad Ikraam-ul-Haq, PW-3, Ahmad Din, PW-4 Sultan Ahmad and he himself appeared as PW-5. PW-1. Muhammad Aslam deposed that the agreement to sell Exh. P-1 and receipt of payment Exh. P-2 were written in his presence and Abdul Ghani, predecessor of the present respondents put his thumb impression on the Exh. P-l and Exh. P-2. In cross-examination, this witness admitted that no bargain was struck down in front of him nor any payment was made in his presence. PW-2, Muhammad Ikraam-ul-Haq, who was stated to be the son of Malik Ghulam Muhammad, the marginal witness of the said agreement, who only identified the signature of his father on the said agreement to sell as well as on the receipt. PW-3, Ahmad Din deposed that he used to work with scribe of the document namely Haji Ghulam Rasool. He identified the handwriting of the said Ghulam Rasool. In cross-examination, he submitted that he has brought the register of Haji Ghulam Rasool as that was not in his custody. PW-4, Sultan Jan deposed that initially he was tenant of Abdul Ghani and about 19/20 years ago, Abdul Ghani and Rais Phelwan came to him where Abdul Ghani stated that he has sold the properly to Rais Phelwan. He further deposed that he used to pay lease money as a tenant to Rais Phelwan who is in possession of the property. In cross-examination, he was unable to mention the number/description of the properly owned by Abdul Ghani. He denied the suggestion that he used to pay the lease money to the defendants till last and that he was ejected from the suit property by the defendants. PW-5, Rais Phelwan white appealing as his own witness deposed that he purchased the suit property from Abdul Ghabni for a consideration of Rs. 46,5000/- out of which Rs.40,000/- were paid, possession was taken over and agreement Exh. P.1 and receipt Exh. P-2 was executed in his favour. He further deposed that after the death of Abdul Ghani, he approached the defendants (legal heirs of the deceased), who initially accepted the agreement to sell and promise to mutate the property in his name but there-after mutation was not got entered and suit was filed. In cross-examination, he stated that he is illiterate and cannot recognize the agreement or receipt. He stated that the amount of Rs.40,000/- was paid at the arhat shop of Ghulam Muhammad and the bargain was reduced into writing at Khanpur, Kuchcry which were written by Haji Ghulam Rasool. In cross-examination, he could not tell that what was the denomination of the stamp paper. He also deposed that no time frame was given as it was verbally settled. He further stated that when the payment of Rs.40,000/- was made on the same day the agreement to sell was executed. He denied the suggestion that neither any agreement of sell was executed nor any payment was made to the said Abdul Ghani. He also denied the suggestion that Exh, P-1 and P-2 are forged and fictitious document. In rebuttal DW-1, Muhammad Aktar, DW-2 Liaquat son of Bashir Ahmad and DW-3 Haqiqat Ali and the present Respondent No. 2 (Defendant No. 2) appeared on behalf of the defendants. All these witnesses categorically denied the execution of the alleged agreement to sell and submitted that the suit property was mortgaged with Agriculture Bank since 1986 and as such there was no occasion to sell the property.

7. It was prime duty of the plaintiff/predecessor of the present petitioner to prove the execution of the agreement to sell for a consideration but no witness had been produced by the petitioner/plaintiff for this purpose. PW-1 categorically admitted in cross-examination that only agreement to sell Exh.P-1 and Exh.P-2 receipt were written in his presence. He admitted that no payment was made in his presence which is contradictory to the statement made by PW.5. Perusal of the agreement to sell Exh.P-1 reveals that, it has not been signed by Rais Phelwan, the predecessor of the present petitioner and in view of the Section 2(e) of the Contract Act, 1872, this document does not fall within the definition of agreement which is reproduced below:--

"Agreement". Every promise and every set of promises, forming the consideration for each other, is an agreement".

and since Exh. P-1 was not signed by the alleged purchaser i.e. Rais Phelwan, therefore, it cannot be termed as an agreement and was not enforceable in view of the law laid down in the case reported as Mst. Gulshan Hamid Versus Kh. Abdul Rehman and others (2010 SCMR 334). The relevant portion of the said judgment reads as under:

"As a sequel to the above discussion, we hold that the unilateral agreement not signed by the respondents was not mutually enforceable".

Further more there is no specific description of the property which was the alleged subject matter of the suit. There is yet another aspect that without establishing that the consideration amount is paid no document could be considered as an agreement. The contentions of the learned counsel for the petitioner that since the findings of the appellate Court on Issues No. 1 and 2 whereby the appellate Court has reversed the findings of the trial Court and held that the agreement to sell Exh. P-1 and receipt Exh. P-2 were duly executed has not been assailed by filing in cross objections by the respondents/defendants, therefore, they cannot attack the findings on Issues No. 1 and 2 in the present revision petition, are not acceptable as it has been held in the case reported as Ali Bahadur and others Versus Nazir Begum and others (PLD 2005 Lahore 218) that:--

"However, if the decree-holder, who is the beneficiary of the decree, is aggrieved of the findings of the Court below on anyone or more issues going against him, but is satisfied with the final verdict of the decree being in his favour. As the respondent in the appeal, can support the judgment and decree, but without filing any cross-appeal or cross-objections can verbally request and pray to the Court to reverse the findings on the issue/issues going against him at the trial stage and to award him decree on the basis of such reversed findings as well".

1. Accordingly, the findings of the Additional District Judge, Khanpur on Issues No. 1 & 2 are also not sustainable in the eye of law and by invoking the revisional jurisdiction of this Court, the findings of Additional District Judge, Khanpur on Issues No. 1 & 2 are versed and those of civil Court are upheld.

2. In view of the above discussion, this revision petition is without any force and the same is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 61 (DB) [Multan Bench Multan]

Present: Amin-ud-Din Khan and Abid Aziz Sheikh, JJ.

MUHAMMAD RAMZAN--Appellant

versus

HABIB AHMAD and 19 others--Respondents

I.C.A. No. 228 of 2010 in W.P. No. 21 of 2009, heard on 30.9.2013.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Constitution of Pakistan, 1973, Art. 199--Illegal Dispossession Act, 2005, S. 3--Intra Court Appeal against dismissal of writ petition--No right of appeal against dismissal of complaint under Illegal Dispossession Act--Constitutional jurisdiction as well as Appellate Jurisdiction cannot be exercised in routine as an appeal--Case of encroachment or demarcation--Abadi Deh and Ehata Jaat--Validity--Documentary evidence produced by appellant does not show that Ehata was in existence over Khasra--Even witnesses produced by appellant were not specific about existence of ehata in-question at land exclusively owned by appellant--No allegation against respondents that they belong to Qabza Group--Legislature had intentionally not provided right of appeal against dismissal of complaint by trial Court in complaint filed under Illegal Dispossession Act, therefore, constitutional jurisdiction or appellate jurisdiction by High Court cannot be exercised in a routine--If it is liberally exercised it will circumvent the intention of legislature which is not permissible under law--No case for interference was made out--ICA was dismissed. [Pp. 63 & 64] A, B & C

Mr. Abdul Rashid Sheikh, Advocate for Appellant.

Malik Muhammad Naeem Iqbal, Advocate and Mr. Zafarullah Khan Khakwani, AAG for Respondents.

Date of hearing: 30.9.2013.

Judgment

Amin-ud-Din Khan, J.--Through this ICA the appellant has challenged the judgment dated 13.5.2010 passed by learned Single Judge in Chamber in Writ Petition No. 21 of 2009 whereby writ petition was dismissed. In the writ petition the appellant has challenged the order of acquittal passed by learned Additional Sessions Judge dated 13.11.2008 in a complaint filed by him under Section 3 of the Illegal Dispossession Act, 2005.

1. Learned counsel for the respondents informs that Respondent No. 1 has passed away during the pendency of this appeal, therefore, to the extent of Respondent No. 1 this appeal is abated.

2. Learned counsel for the appellant argues that learned trial Court fell in error while dismissing the complaint on the basis that a civil suit was filed previous to filing the complaint under Section 3 of the Illegal Dispossession Act of 2005; that learned trial Court has misinterpreted the statement of PW-3 Ashiq Hussain, Patwari and further that illegally ignored the report produced by PW-4 Saeed Ahmad, ASI as Exh.PF, therefore, states that the findings recorded by the learned trial Court are against the record; that learned Single Judge in Chamber while deciding the writ petition has also not considered and interpreted the evidence in accordance with law, therefore, prays for acceptance of appeal and selling aside the orders passed by both the Courts below and for conviction of the respondents in a complaint under Section 3 of the Illegal Dispossession Act of 2005.

3. On the other hand, learned counsel for the respondents as well as learned AAG has vehemently opposed the arguments advanced by learned counsel for the appellant on the ground that even the statement of Patwari is against the stand taken by the appellant; that the alleged "Ehata" falls in Khasra No. 7/26, which is part of a joint Khata; that Khasra No. 7/11 is recorded agricultural land; that Patwari admitted that he has prepared the documents in contradiction with "Aks Shajra Parcha" and further that the stand taken by the complainant in his complaint is clearly in contradiction to the stand taken by him in his suit which was previously filed. States that when the legislature has not given right of appeal against the dismissal of the complaint under Illegal Dispossession Act, 2005, constitutional jurisdiction as well as this appellate jurisdiction cannot be exercised in routine as an appeal. Further relied upon "Habibullah and others Vs. Abdul Manan and others" (2012 SCMR 1533) to argue that the complaint can be filed against "Qabza Group" and not against the joint or adjacent owners.

4. We have considered the arguments advanced by learned counsel for the parties as well as judgments passed by both the Courts below and law cited by learned counsel for the respondents.

5. So far as findings on the basis of facts and documents are concerned, same are in accordance with the record available on the file produced by the parties. Learned counsel for the appellant frankly admitted that the pleadings in a civil suit filed on behalf of the appellant are faulty one and the learned counsel who has drafted the suit has drafted something against the claim of the appellant. We have noticed that it seems to be a case of encroachment or demarcation. When in the adjacent Khasra No. 7/26 admittedly the appellant as well as respondents are the joint owners, which relates to "Abadi Deh" and "Ehata Jaat" are there. The documentary evidence produced by the appellant does not show that Ehata in question was in existence over Khasra No. 7/11. Even the witnesses produced by the appellant are not specific about the existence of the Ehata in question at the land exclusively owned by the appellant. In this view of the matter, appellant has failed to show any defect in the factual findings recorded by the two Courts below. Even we have noticed that there is no allegation against the respondents that they belong to a "Qabza Group" etc. Further we are conscious of the fact that the legislature has intentionally not provided right of appeal against the dismissal of complaint by the learned trial Court in a complaint filed under Illegal Dispossession Act, 2005, therefore, the constitutional jurisdiction or the appellate jurisdiction by this Court cannot be exercised in a routine. If it is liberally exercised it will circumvent the intention of legislature which is not permissible under the law.

6. In view of the above, the case law relied by learned counsel for the respondents is fully applicable to the facts of this case. Resultantly, no case for interference by this Court while exercising appellate jurisdiction has been made out, therefore, we see no infirmity or illegality in the order impugned in this ICA, same is dismissed with costs.

(R.A.) ICA dismissed

PLJ 2014 Lahore 64 [Multan Bench Multan]

Present: Shoaib Saeed, J.

MUHAMMAD MASOOD KHAN--Petitioner

versus

JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, BUREWALA, DISTRICT VEHARI and 2 others--Respondents

W.P. No. 10394 of 2013, decided on 1.10.2013.

Financial Institution (Recovery of Finances) Ordinance, 2001--

----Ss. 2(c), 7 & 20--Pakistan Penal Code, (XLV of 1860), S. 489-F--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Recovery of defaulted loan by filing proceeding against delinquent defaulters with Banking Court--Cheque was dishonoured due to insufficient amount--Validity--There is no cavil that aims and objects of Ordinance and initiating proceedings u/PPC are entirely different as both enactments cannot be amalgamated or confused with each other--Civil liability exists between the parties diverting it into criminal offence where a complete recourse for recovery of such liability is provided under Ordinance seems to be with mala fide intention and ulterior motive--Remedy wherein cheque dishonestly issued and dishonoured because of insufficient funds, would be governed, Bank can file a direct complaint in Banking Court having jurisdiction in that regard--Bank can avail remedies for recovery of its debt as well as dishonoured cheque--Petition was allowed. [P. 66] A & B

1999 SCMR 2765, PLD 2013 Lah. 442, 2010 PCr.LJ 412, 2005 P.Cr.LJ 766 & 2005 PCr.LJ 144, rel.

Mr. Ghulam Murtaza Malik, Advocate for Petitioner.

Ch. Muhammad Siddique Dewal, Advocate for Respondents.

Mr. Mubashar Latif Gill, A.A.G. for State.

Date of hearing: 1.10.2013.

Order

This writ petition is directed against the impugned order dated 31-08-2013 passed by Respondent No. 1.

1. Brief facts of the case are that the petitioner instituted a suit for declaration and rendition of account along with permanent injunction titled Muhammad Masood Khan Versus Askari Bank Ltd. which is pending adjudication with Judge Banking Court-II, Multan. The Court on 24-01-2013 passed injunctive order in favour of the petitioner wherein Respondent No. 2/Askari Bank Ltd. was restrained to adopt any illegal coercive measures for recovery of loan. Respondent No. 2 did not put in appearance but moved an application before Respondent No. 1/Justice of Peace for registration of criminal case against the petitioner.

2. Petitioner had obtained an agricultural loan and failed to pay the same as per terms and conditions of the agreement.

3. A Cheque No. 0477323 dated 03.6.2013 amounting to Rs. 46,20,000/- Reference Account No. 0112010250001-3 Askari Bank Ltd. Burewala Branch was issued in favour of the Bank. The same on presentation was dishonoured due to insufficient amount.

4. Respondent No. 1 sought comments from Respondent No. 3 and on receipt of the same passed the impugned order dated 31-8-2013.

5. It was contended by counsel for the petitioner that Respondent No. 2 (Askari Bank Ltd.) is "Financial Institution" within the meaning of Section 2 of the financial Institution (Recovery of Finances) Ordinance, 2001 whereas the petitioner is a customer under Section 2(c) of the Ordinance ibid. Being a financial institution, respondent can adopt recourse to the procedure under the Ordinance ibid for recovery of its defaulted loans by filing proceedings against the delinquent defaulters with the Banking Court having exclusive jurisdiction to adjudicate and decide such matters. By obtaining impugned order, the ultimate object of Respondent No. 2 is for initiation of proceedings under Section 489-F PPC as cheque issued by the petitioner in favour of Respondent No. 2 stood dishonoured. It was averred that scheme of both the enactments is poles apart. Financial Institution (Recovery of Finances) Ordinance, 2001 being a special enactment has an overriding effect on the ordinary law, therefore, the only recourse available to Respondent No. 2 was to invoke the provisions of Section 20 of the Ordinance ibid by filing a complaint in terms of Section 7 of the said Ordinance. Prosecution of the accused on the basis of FIR would be abuse of process of Court and without lawful authority. Reliance was placed on the cases reported as Gul Muhammad and others Versus The State (1999 SCMR 2765), MADAWA through President Versus Inspector General of Police, Punjab and 15 others (PLD 2013 Lahore 442), Sabir Ahmad Versus Nazeer Ahmed & another (2010 PCr.L.J. 412), Mian Farid and another Versus Industrial Development Bank of Pakistan and four others (2005 PCr.L.J. 706) and Sheikh Mureed Hussain Versus S.H.O. police Station Kohsar, Islamabad and two others (2005 PCr.L.J. 144).

6. Conversely, it was argued that the petitioner having availed the finance facility in lieu whereof issued cheque for its repayment, on presentation it stood dishonoured. The Bank was within its lawful rights to proceed on the criminal side. The order dated 31-08-2013 was naive as Respondent No. 3 was directed to attend the grievance of Respondent No. 2 (Askari Bank Ltd.) strictly in accordance with law and reliance in this regard was placed on the case reported as Muhammad Mazhar Iqbal Versus The State and another (2011 CLD 704 Lahore).

7. Arguments heard. Record perused.

8. There is no cavil that the aims and objects of the Financial Institution (Recovery of Finances) Ordinance, 2001 and initiating proceedings under the Pakistan Penal Code are entirely different as both the enactments cannot be amalgamated or confused with each other. Civil liability exists between the parties diverting it into criminal offence where a complete recourse for recovery of such liability is provided under the Ordinance ibid seems to be with malafide intention and ulterior motive. Sub-section (4) of Section 20 of the Ordinance ibid provides the remedy wherein cheque dishonestly issued and dishonoured because of insufficient funds, would be governed by the said section of law, the Bank can file a direct complaint in the Banking Court having jurisdiction in this regard. Respondent bank can avail remedies available under the Ordinance ibid for recovery of its debt as well as for the dishonoured cheque. Respondent No. 3 (SHO) in compliance of the impugned order dated 31-8-2013 registered case FIR No. 599 dated 03.09.2013 under Section 489-F, PPC but recommended cancellation of the same on 15-09-2013 on the basis of investigation carried out by him. Proceeding further on the basis of the said impugned order would be abuse of process of the Court and without lawful authority.

9. In view of the above, this writ petition is allowed and the impugned order dated 31.8.2013 passed by learned Ex-officio Justice of Peace, Burewala is hereby set aside.

(R.A.) Petition allowed

PLJ 2014 Lahore 67 [Rawalpindi Bench Rawalpindi]

Present: M. Sohail Iqbal Bhatti, J.

GHULAM RASOOL, etc.--Petitioners

versus

MANSAB KHAN, etc.--Respondents

C.R. No. 657-D of 2012, decided on 19.11.2013.

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

----S. 151 & O. XLI, R. 27--Application for producing attested copy of Shajranasb (pedigree table) dismissal of--Predecessor-in-interest died issueless--Question--of--Whether plaintiffs were entitled to decree for declaration being ancestors of deceased--Father of plaintiffs remained alive for more than 50 years after first mutation--Deceased never claimed any right regarding property inherited--Validity--Application u/Order 41, Rule 27, CPC would had been accepted cannot be agreed with, as incordinate delay of more than nine years cannot rule out fabrication of such document--Petitioners had never made any attempt to produce attested copy of pedigree table before trial Court and Appellate Court had rightly dismissed application of petitioners--Revision was dismissed. [P. 70] A & B

Mr. Muhammad Aslam Qureshi, Advocate for Petitioners.

Date of hearing: 19.11.2013.

Order

Through this C.R, the petitioners have challenged the judgment and decree dated 2.7.2010 passed by the learned Civil Judge 1st Class, Rawalpindi through which the suit for declaration, permanent and mandatory injunction was dismissed as well as the judgment and decree dated 15.5.2012 passed by the learned Addl. District Judge, Rawalpindi whereby the appeal filed by the petitioners was also dismissed.

1. Brief facts giving rise to the filing of the present writ petition are that the petitioners filed a suit for declaration, permanent and mandatory injunction against the defendants on the ground that one Ghulam Nabi was owner of land measuring 600 kanals in revenue estate Chokar Tehsil and District Rawalpindi. The said Ghulam Nabi died issueless in the year 1932 leaving one widow Mst. Rasoolan Bibi as only legal heir. Under the inheritance law Mst. Rasoolan Bibi was entitled to inherit 1/4th share and the remaining property was to be reverted back to his ancestors-brothers and sisters and upwards. Mst. Rasoolan Bibi in league with Defendant No. 3 got Mutation No. 48 sanctioned in respect of the whole estate of Ghulani Nabi including the share of Shamlat and Haveli in her name. Afterwards another predecessor-in-interest of the plaintiffs namely Mst.Safaidan daughter of Ali Muhammad also died issueless and again Mst.Rasoolan Bibi got mutation of inheritance No. 69 sanctioned in her favour. It was averred that the plaintiffs were entitled to inherit 3/4th share of both the estates of deceased Ghulam Nabi and Mst.Safaidan Bibi. The father of the plaintiffs namely Sadda Khan continued to demand transfer of 3/4th share of the estate in his favour but she kept avoiding his demand. Thereafter, Mst.Rasoolan Bibi transferred the entire estate in the name of her sister Mst.Sakina Bibi and Mansab Khan through Mutations No. 336 and 559. Mst.Sakina Bibi was the mother of Defendant No. 1 Mansab Khan and after her death Defendant No. 1 namely Mansab Khan is in possession of the entire property mentioned above. The defendants contested the suit and upon the divergent pleadings of the parties, the following issues were framed:-

2. Whether the suit is barred u/S. 142 Transfer of Property Act? OPD.

3. Whether the plaintiff has no cause of action? OPD

4. Whether the suit is time barred? OPD.

5. Whether the plaintiff has not come to the Court with clean hands and suppressed the material facts from the Court? OPD

6. Whether the plaintiff is entitled to the decree of declaration to the effect that the plaintiffs are ancestors of deceased Ghulam Nabi and Mst. Safaidan and are entitled to inherit share 3/4th of property of deceased Ghulam Nabi and Mst. Safaidan? OPP.

7. Whether the mutation (inheritance of deceased Ghulam Nabi and Mst. Safaidan in favour of Mst. Rasoolan and further transfer of land in favour of Defendant No. 1 and Mst. Sakina and mutation of inheritance of estate of Sakina Bibi in favour of Defendant No. 1, or any transfer of above said land in excess of 1/4th share is illegal, void, null and liable to be cancelled? OPP.

8. Whether the plaintiff is entitled for permanent injunction restraining the Defendant No. 1 from alienating the ownership of land excess to share of estate of deceased Ghulam Nabi and Mst. Safaidan? OPP.

9. Whether the plaintiff is entitled for temporary injunction directing the Defendant No. 3 to cancel the above said mutation and record names of plaintiff as owner in possession of 3/4th share of Ghulam Nabi and Mst. Safaidan? OPP.

10. Whether the plaintiff is entitled for possession of suit land as consequential relief? OPP.

11. Relief.

12. The most important issue, upon which the entire case was hinged, was Issue No. 5 as to whether the plaintiffs were entitled to the decree of declaration being the ancestors of deceased Ghulam Nabi and Mst. Safaidan as alleged by the plaintiffs. It was observed by the learned trial Court while giving its findings on Issue No. 5 that the plaintiffs have placed on record an unattested copy of pedigree table which shows their relationship with Ghulam Nabi whereas the attested pedigree table Exh.D.1 shows no such nexus. It was further observed that father of the plaintiffs namely Sadda Khan remained alive for more than 50 years after the First Mutation No. 48 was sanctioned in favour of Mst.Rasoolan Bibi and he never claimed any right whatsoever regarding the property inherited by Mst.Rasoolan Bibi. The issue was decided against the plaintiffs. Since the entire case of the plaintiffs was hinged upon this issue the findings on other issues become insignificant. The petitioner filed an appeal against the judgment and decree dated 2.7.2010. Learned Addl. District judge, Rawalpindi dismissed the appeal after observing that the present petitioners do not have any relationship with Ghulam Nabi and Mst.Safaidan, as is apparent from Exh.D-1 and as such the present petitioners failed to establish their entitlement over the suit property.

13. Learned counsel for the petitioner submits that findings of both the learned Courts below on Issue No. 5 are the result of misreading of evidence. It is further contended that the petitioner filed an application under Order XLI, Rule 27 read with Section 151, CPC for producing an attested copy of Shajranasb (pedigree table) but the learned appellate Court while deciding the appeal also dismissed the application under Order XLI, Rule 27, CPC.

14. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioners and perused the record.

15. Upon query made by this Court it was frankly conceded by the learned counsel for the petitioners that the suit was filed on 25.6.2001 and decided on 2.7.2010 and the pedigree table, which was sought to be produced in evidence, was not included in the list of reliance and it was produced during the course of appeal; the petitioner sought permission to produce the attested copy of Shajranasb (pedigree table) prepared on 2.8.2010. I am afraid that this argument that application under Order XLI, Rule 27, CPC should have been accepted, cannot be agreed with; as inordinate delay of more than nine years cannot rule out the fabrication of this document. Moreover, Rule 27 of Order XLI, CPC is in itself couched in negative language as under:

"27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or......."

1. The petitioners had never made any attempt to produce the attested copy of the pedigree table before the learned trial Court and the learned appellate Court had rightly dismissed the application of the petitioners.

2. For what has been discussed above, I do not find it appropriate to interfere into the concurrent findings of both the learned Courts below and in view of my observations made above, the instant civil revision is dismissed in limine.

(R.A.) Revision dismissed

PLJ 2014 Lahore 70 [Rawalpindi Bench Rawalpindi]

Present: M. Sohail Iqbal Bhatti, J.

GHAZNI KHAN--Petitioner

versus

XEN (E) etc.--Respondents

W.P. No. 1613 of 2011, decided on 7.11.2013.

Constitution of Pakistan, 1973--

----Arts. 25 & 199--Constitutional petition--Supply of electricity is a fundamental right--Scheme for electrification--Electricity be provided to houses of political opponents--Order situation regarding implementation of approved scheme--Validity--Right to livelihood is an inalienable right of a person--Electricity makes the life meaningful complete and worth living--Where a person is subjected to discriminatory treatment there must be an intelligible differentia which subject person or things that are grouped together from those had been left out, failing which the act of authority would come within mischief of Art. 25 of Constitution and shall always be subject to judicial scrutiny by High Court under Art. 199 of Constitution--It was incomprehensible that electricity had been provided to entire vicinity except petitioner which inaction of respondent authority cannot be allowed--Petition was accepted. [P. 72] A & B

2003 CLC 1874 & PLD 1993 SC 341, rel.

Malik Muhammad Kabir, Advocate for Petitioner.

Ms. Nadia Hayat, Advocate for Respondents.

Date of hearing: 7.11.2013.

Judgment

Through this writ petition it has been submitted by the learned counsel for the petitioner that in pursuance to the sanction of scheme for electrification of Dhoke Kaleji Dakhli Lawa, Tehsil Talagang District Chakwal an administrative approval was accorded and the plan was prepared by the respondents, according to which the electricity was to be provided to the houses of the petitioner as well as Respondents No. 5 and 6 alongwith other inhabitants since the petitioner and Respondents No. 5 and 6 were the political opponents to the Member National Assembly, NA-61, the said MNA wrote a letter to the XEN/Respondent No. 1 on 02.06.2011, and thereafter on 03.6.2011, the letter was addressed to the Resident Project Manager, in which a reference was made to the letter written by the aforementioned MNA wherein the said MNA had directed the S.D.O, Talagang verbally as well as in writing that the site sketch may be revised to remove three number of poles towards the houses of Safdar Khan, Noor Khan and Ghazni Khan. Learned counsel for the petitioner submits that after the aforementioned letter the petitioner approached the civil Court on 08.06.2011 and thereafter, this Court on 27.6.2011.

1. In the report and parawise comments the respondents have submitted that during the process of erection of poles situation got out of control and to defuse the situation, upon the instructions of the local MNA, the department had to revise and change the whole scheme again. It is further submitted that the project is complete. No question of fundamental rights are involved in the matter and therefore the present writ petition may be dismissed.

2. I am afraid that the respondent-department could not allow the local politicians to pass instructions regarding their schemes as well as revising the said schemes upon politically motivated considerations. As the Government servants are bound to comply with those directions and orders which are legal, compliance of illegal orders cannot be justified. Even if there was any law and order situation regarding implementation of the approved scheme the matter could not have been referred to the local M.N.A but the law enforcing agencies are there to control law and order situation. Revising the scheme upon the instructions of local MNA shows malice and political ill will. Utility organizations like the respondents cannot deny the rights of the petitioner and Respondents Nos.5 and 6 from the supply of electricity by revising the scheme. In my humble view right to have an electricity is a vested right and is a right to livelihood in the present day Life. Right to livelihood is an inalienable right of a person. Electricity makes the life meaningful, complete and worth living. It has been held by this Court in the case of Dr. Noor Muhammad Raja Vs. Deputy Manager, FESCO and others (2003 CLC 1874) the supply of electricity is a fundamental/vested right and moreover, all the persons similarly placed must be treated alike. Reliance is placed upon Government of Balochistan through Additional Chief Secretary Vs. Azizullah Memon and 16 others (PLD 1993 S.C.341.

3. However, where a person is subjected to discriminatory treatment there must be an intelligible differentia which subjected person or things that are grouped together from those who have been left out; failing which the act of the authority would come within the mischief of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 and shall always be subject to judicial scrutiny by this Court under Article 199 of the Constitution. It is incomprehensible that electricity had been provided to the entire vicinity except the petitioner and Respondents No. 5 and 6, which inaction of the respondent authorities cannot be allowed.

4. In this view of the matter, the present writ petition is accepted with the direction to the respondent authorities to provide electricity to the petitioner and Respondents No. 5 and 6 immediately upon receiving their applications.

(R.A.) Petition accepted

PLJ 2014 Lahore 72 [Rawalpindi Bench Rawalpindi]

Present: M. Sohail Iqbal Bhatti, J.

RIASAT MEHMOOD--Petitioner

versus

NADIA PARVEEN, etc.--Respondents

W.P. No. 1443 of 2011, decided on 7.11.2013.

Guardians and Wards Act, 1890 (VIII of 1890)--

----S. 25--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Custody of minors--Not contracted second marriage--Parental jurisdiction--Retired Army Personnel and was better position to look after his children--Good education--Minor children who seemed to be quite intelligent had stated in unequival terms that they were studying in good school and their father was properly looking after his retirement--Validity--While handing over custody to mother or father u/S. 25 of Act--Court would exercise its parental jurisdiction and would give due consideration to fact as to welfare of the minors--Minors seemed perfectly happy, healthy, well adjusted, confident and emotionally stable while they were living their father--Primary consideration was undoubtedly the welfare of minors while deciding question of custody and in that respect Family Court is under obligation to act in a parental manner and would not allow custody of the minors to mother or father in mechanical manner--While accepting writ petition judgment, and decree passed by Appellate Court to extent of delivering custody of minors to mother was set aside--Petition was accepted. [P. 75] A, B & C

Malik Ibrar Hussain, Advocate for Petitioner.

Raja Aamir Mehmood, Advocate for Respondents.

Date of hearing: 7.11.2013.

Order

This single order shall dispose of W.P. No. 1443/11 and W.P. No. 1442/11 as both the writ petitions are directed against a consolidated judgment and decree dated 24.5.2011 passed by the learned Addl. District Judge, Rawalpindi in which similar points of law and facts are involved.

1. Through these writ petitions the petitioner seeks indulgence of this Court for setting aside the consolidated judgment and decree dated 24.5.2011 passed by the learned Addl. District Judge, Rawalpindi in which three appeals titled "Riasat Mehmood Versus Mst. Nadia Parveen etc", "Mst. Nadia Parveen Versus Riasat Mehmood" and "Mst. Nadia Parveen etc Versus Riast Mehmood." were filed by the parties.

2. The brief facts given rise to the filing of these writ petitions are that Respondent No. 1 filed a suit for recovery of maintenance allowance and dower as well as the petition for custody of minors namely Kiran, Hamza and Ramaiz, who were reportedly living with the writ-petitioner. The learned Family Court vide consolidated judgment and decree dated 03.12.2010 did not allow the dower and maintenance allowance to Respondent No. 1 but monthly maintenance allowance at the rate of Rs.2000/- p.m was allowed to Rehan Ali minor and Rs.2500/- p.m was allowed to Iram Shehzadi minor from the date of filing of the suit till the marriage of Irani Shehzadi minor and till attaining the age of majority by Rehan Ali minor with annual enhancement of 10%.

3. The petition under Section 25 of the Guardian and Wards Act, 1890 for custody of Kiran, Hamza and Ramaiz minors was also dismissed. Aggrieved by the judgment and decree passed by the learned Family Court three counter appeals were filed which were decided by a consolidated judgment by the learned Addl. District Judge, Rawalpindi on 24.5.2011. The learned Addl. District Judge decided the matter regarding custody of three minor children namely Kiran, Hamza and Ramaiz in favour of Respondent No. 1. However, the judgment of the learned Family Court to the extent of grant of maintenance allowance was modified and both the minors namely Rehan and Iram Shehzai were found entitled to maintenance allowance at the rate of R.s.2500/- p.m. Aggrieved by the consolidated judgment and decree dated 24.5.2011, the present writ petition as well as W.P. No. 1442/11 have been filed.

4. Leaned counsel for the petitioner has drawn the attention of this Court to the affidavit submitted in evidence by Respondent No. 1 as PW-1 and in cross-examination it has been admitted by Respondent No. 1 that she has been on numerous occasions leaving the house of her husband on account of marital dispute. She has further admitted in her cross-examination that she has been living with her parents and brothers. PW-2 has deposed in evidence that two minor children namely Iram Shehzadi and Rehan have been getting good education. Upon query by this Court the learned counsel for Respondent No. 1 has admitted that the petitioner docs not have any source of income but since she has been living with her brothers and parents they would support in upbringing of three minor children whose custody has been given to Respondent No. 1 by the learned appellate Court. It has been further admitted that the petitioner has retired from Army and three minor children are in custody of the petitioner who are getting good education. This Court in its parental jurisdiction asked Kiran and Hamza minors regarding their subjects, the classes in which they are studying and conduct of their father towards them. Both the minor children, who seem to be quite intelligent, have stated in an unequivocal terms that they are studying in good schools in Class 8th and class 4th and their father is properly looking after them after his retirement from Army. Learned counsel for the petitioner has submitted that an illegality has been committed by the learned appellate Court while handing over the custody of three minor children to Respondent No. 1. Learned counsel for Respondent No. 1 forcefully defended the appellate judgment and prayed for dismissal of these petitions.

5. I have given my anxious consideration to the facts of the case. In my opinion while handing over the custody to the mother or father under Section 25 of the Guardian and Wards Act, 1890, the Court should exercise its parental jurisdiction and should give due consideration to the fact as to the welfare of the minors. In my opinion Mst. Kiran, who is 13 years old would be in a better state while living with her father instead of her mother and cousins and same is the case with the remaining two minors. The petitioner has not contracted second marriage. He is a retired Army personnel and is in a better position to look after his children. Moreover, to my observation the minors seem perfectly happy, healthy, well adjusted, confident and emotionally stable while they are living with their father. The primary consideration is undoubtedly the welfare of the minors while deciding the question of custody and in this respect the family Court is under obligation to act in a parental manner and should not allow the custody of the minors to the mother or father in a mechanical manner.

6. In view of my observations, while accepting W.P. No. 1443/11 the judgment and decree dated 24.5.2011 passed by the learned appellate Court to the extent of delivering the custody of minors namely Kiran, Hamza and Ramaiz to Respondent No. 1 is set aside. However, the judgment of the learned appellate Court to the extent of grant of maintenance allowance at the rate of Rs.2500/- p.m alongwith 10% annual increase to the extent of Iram Shehzadi and Rehan Ali is maintained. Resultantly, W.P. No. 1442/11 stands dismissed.

7. As a sequel to the above discussion, the instant petition is accepted.

(R.A.) Petition accepted

PLJ 2014 Lahore 75 [Multan Bench Multan]

Present: Atir Mahmood, J.

HASHMAT TAJ--Petitioner

versus

SURAYYA TARIQ and others--Respondents

F.A.O. No. 16 of 2006, decided on 13.11.2013.

Cantonments Rent Restriction Act, 1963--

----S. 24--Ejectment petition--Defaulted and subletting part of premises without permission--Application for impleading party in ejectment petition was dismissed--No locus standi--Not sub-tenant at time of filing of ejectment petition--No aggrieved party--Validity--Appellant does not fall within interpretation of term aggrieved party, as a party can be person aggrieved but a person who may be effected by judgment or order of a lis cannot be considered as aggrieved party to fall within purview of S. 24 of Act--It was not a rent agreement rather it was sale agreement executed by legal heirs of original tenant and had no authority to enter into any such agreement on behalf of landlords--Appellant if feels aggrieved himself may approach competent Court of law for redressal of grievance--It cannot be presumed that any legal right of appellant was invaded by way ejectment order against who had not assailed the ejectment order passed against them as such order had attained finality to their extent--Appellant was claiming himself as sub-tenant under respondent who in terms of the order had been ejected from party, appellant had no locus standi to file instant appeal--Appeal was dismissed. [Pp. 79 & 80] A, B & D

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

----S. 24--Ejectment petition--Subletting part of premises--Agreement is not a rent agreement rather sale agreement--Approbating and reprobating--One had claimed to be sub tenant but agreement showed that it was not a rent agreement but an agreement to sell--Rent agreement and agreement to sell are altogether two different things--If appellant was sub-tenant, he could not claim ownership over disputed land and if he was owner, he might not had said himself to be sub-tenant. [P. ] C

M/s. Waseem Shahab and Muhammad Ali Siddiqui, Advocates for Appellant.

Mr. Mudassar Altaf Qureshi, Advocate for Respondent Nos. 1 and 2.

Nemo for Respondents No. 3 to 8.

Date of hearing: 4.11.2013.

Judgment

Through this appeal under Section 24 of Cantonments Rent Restriction Act, 1963, the appellant has assailed order dated 26.11.2005 passed by Rent Controller Multan Cantt. who accepted ejectment petition filed by Respondents No. 1 & 2 for ejectment of LRs of Sh. Muhammad Nawaz and Mirza Muzammil Ahmad Baig.

1. Briefly stated the facts leading to filing of instant FAO are that on 01.07.2002, Respondents No. 1 & 2 (landlords) filed an ejectment petition against Muhammad Nawaz and Mirza Muzammil Ahmed Baig on the ground of default and subletting part of premises to Defendant No. 2 without their permission. The ejection petition was contested by the respondents by filing written statement.

2. Out of divergent pleadings of the parties, issues were framed vide order dated 30.11.2002. In the meanwhile, vide order dated 21.09.2002, the defendants were directed to deposit the monthly rent in the Court. The appellant Hashmat Taj moved an application on 02.07.2004 for impleading him as party in the proceedings on the ground that he was given the shop on rent by LRs of Sh. Muhammad Nawaz who was the initial tenant of the ejectment petitioners. The application was opposed by the ejectment petitioners as well as the respondents therein. On 25.06.2005 the ejectment petitioners filed an application under Section 17(8) of Cantonments Rent Restriction Act, 1963 to strike off right of defence of respondents for non-compliance of order of the Court to deposit monthly rent in the Court. Despite direction, the respondents failed to file reply to the said application. Since during the course, of arguments, learned counsel for the defendants categorically admitted that the rent was not being deposited by the respondents but by Hashmat Taj, the ejection petition was allowed and the respondents were directed to vacate the premises within three months vide order dated 26.11.2005. The application of the appellant for impleading him party in the ejectment petition was also dismissed holding that the appellant, claiming the sub-tenancy during the pendency of the ejectment petition, had no locus standi vide same order dated 26.11.2005. Hence this appeal.

3. Learned counsel for the appellant contends that Respondent No. 1 is owner of lease hold rights of Shop No. 44-B situated at Aziz Bhatti Shaheed Road, Multan Cantt; that Respondent No. 1 rented out shop to one Sh. Muhammad Nawaz, predecessor-in-interest of Respondents No. 3 to 7, through an agreement dated 02.09.1993; that since Sh. Muhammad Nawaz, as per agreement dated 02.09.1993, was authorized to sublet the shop to any person even at increased rent, he rented out the shop to appellant vide agreement dated 18.07.2003; that the appellant paid a sum of Rs.5,00,000/- to Sh. Muhammad Nawaz in this regard and established business in the shop; that the appellant is admittedly a sub-tenant of the property on the basis of agreement dated 18.07.2003; that the tenant Muhammad Nawaz as per agreement dated 02.09.1993 was authorized to sublet the shop to the appellant; that the appellant being sub-tenant was a necessary and proper party in the ejectment proceedings but learned Rent Controller dismissed his application for becoming party illegally and unlawfully; that the appellant made several application for supply of challan forms to him for depositing rent in the Court but the same was not delivered to the appellant rather these were given to the actual tenants who wanted to cause damage to the appellant; that no opportunity to explain the delay in depositing the rent was given to the appellant; that mere nonpayment of rent does not constitute default until it is proved that it was intentional; that no opportunity was given to the appellant to address the arguments of the ejectment petitioners in application for striking off right of defence which is against the principles of natural justice; that Respondents No. 3 to 8 have joined hands with Respondents No. 1 & 2 and they are no more interested in the fate of proceedings. Learned counsel for the appellant submits that valuable rights of the appellant are involved in this case, therefore, this appeal be allowed, the impugned order be set aside and the case be remanded to learned Rent Controller for decision afresh.

4. On the other hand, learned counsel for the Respondents No. 1 & 2 has vehemently opposed this ejectment petition and supported the impugned order.

5. I have heard the arguments advanced by learned counsel for the parties and the perused the record.

6. This FAO has been filed under Section 24 of the Cantonments Rent Restriction Act, 1963 which is reproduced as under:

"24. Appeal. (1) Any party aggrieved by an order, not being an interim order, made by the Controller nay, within thirty days of such order, prefer on appeal to the High Court.

(2) The High Court may, pending the final disposal of the appeal, make an order Staying further proceedings or action on the order of the Controller:

Provided that no such order shall be made if the appeal has been preferred from an order made under sub-section (6) of Section 17-A.

(3) The High Court shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary offer making such further enquiry either by itself or by the Controller as it may deem fit, make an appropriate order which shall be final.

(4) No order of the Controller except by an appeal under this section, and no order of the Appellate Court made under this Act shall be called in question in any Court by any suit, appeal or other legal proceedings."

1. Admittedly, the appellant was not a party in the ejectment proceedings and his application for impleading him as respondent in the ejectment proceedings was dismissed before the learned Rent Controller. On query raised by this Court as to how this appeal is maintainable when the appellant does not fall within the definition of term "aggrieved party", learned counsel for the appellant contends that this appeal is maintainable as the appellant was a tenant lawfully occupying the property under the agreement dated 18.07.2003 executed in his favour by initial tenant Waseem Nawaz/Respondent No. 3 under Respondents No. 1 & 2/landlords. He further submits that the rent was being deposited by the appellant with the Court of Rent Controller in favour of Respondents No. 1 & 2/landlords, therefore, he should have been impleaded in the ejectment proceedings as he was a necessary party therein. He further submits that the appellant is directly affected by ejectment order passed by Rent Controller against Respondents No. 3 to 8 as in light of the said order, the appellant will also have to vacate the shop in his possession. In order to bring the appellant within the definition of "aggrieved party", learned counsel has relied upon the law laid down in cases reported as "Meraj Gul Vs. Rukhsana Ameen and others (2013 PLC (CS) 1089)", "Dr. Abdul Hafeez Vs. Province of Punjab through the Secretary Education, Lahore and others (PLD 1991 SC 165)", "Begum Humayun Zulfiqar Ismail and another Vs. Begum Hamida Saadat Ali (1968 SCMR 828)", "Dr. Abdul Hafeez Vs. Province of Punjab, through Secretary, Education, Lahore and others (PLJ 1991 SC 13)", "Siraj Din and others Vs. Additional District Judge, Okara (1986 CLC 975)" and "Ch. Nazir Ahmed Vs. Mrs. Mariam Salauddin Khawaja and others (PLD 1994 Lahore 252)".

2. The Cantonments Rent Restriction Act, 1963 is a Special law which prevails upon the general law. The term "aggrieved, party" has not been defined anywhere in this Act. In order to come to a conclusion, the term "aggrieved party" will have to be taken by way of its literary meanings. The term "aggrieved party" has been defined in Blacks Law Dictionary as under:

"One whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by a decree or judgment. One whose right of property may be established or divested. The word "aggrieved" refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of a burden or obligation."

According to the above definition, the appellant does not fall within the interpretation of term "aggrieved party" as a party can be a person aggrieved but a person who may be effected by a judgment or order of a lis cannot be considered as an aggrieved party to fall within the purview of Section 24 of the Cantonments Rent Restriction Act, 1963. Furthermore, the appellant, admittedly, entered into the property in dispute during the pendency of the ejection petition as the ejection petition was filed on 01.07.2002 whereas the appellant, according to his own version, was rented out the shop in question vide agreement dated 18.7.2003, as such, he was not a sub-tenant at the time of filing of the ejectment petition, therefore, he is not an aggrieved party within the definition of Section 24 of the Cantonments Rent Restriction Act, 1963.

1. The appellant claims himself to be the sub-tenant in view of the agreement dated 18.07.2003, a copy of the same is present on record. Perusal of agreement dated 18.07.2003 shows that it is not a rent agreement rather it is a sale agreement executed by Waseem Nawaz who is one of the LRs of original tenant and had no authority to enter into any such agreement on behalf of the landlords. In the circumstances, it is prima facie clear that the appellant is approbating and reprobating at the same time as on the one hand he claims himself to be a sub-tenant under Respondents No. 3 to 7 in view of agreement dated 18.07.2003 but perusal of the said agreement shows that it is not a rent agreement but an agreement to sell. Rent agreement, and agreement to sell are altogether two different things. If the appellant is a sub-tenant, he cannot claim ownership over the disputed shop and if he is the owner, he might not have said himself to be the sub-tenant. These controversial things make the claim of the appellant doubtful. The said agreement is apparently signed by Waseem Nawaz, who is one of the LRs of the original tenant who had no authority to sign any agreement to sell in favour of any body. As such, the appellant if feels himself aggrieved may approach the competent Court of law for redressal of his grievance against Waseem Nawaz. The title of the appellant over the property in question has vehemently been opposed by Respondent No. 3 to 7 who were actual tenants, as such, it cannot be presumed that any legal right of the appellant was invaded by way of impugned ejectment order against Respondents No. 3 to 8 who have not assailed the impugned ejectment order passed against them, as such, the order impugned has attained finality to their extent. Since the appellant has claiming himself as a sub-tenant under Respondents No. 3 to 7 who in terms of impugned order have been ejected from the property, the appellant has no locus standi to file the instant appeal. The case law relied upon by learned counsel for the appellant is also not helpful to him in the circumstances of the case.

2. In view of the above discussion, this appeal is not maintainable. Resultantly, without touching other merits of the case, the same is dismissed on this score alone.

(R.A.) Appeal dismissed

PLJ 2014 Lahore 81 (DB) [Multan Bench Multan]

Present: Amin-ud-Din Khan and Abid Aziz Sheikh, JJ.

M/s. DHRALA OIL MILLS TATEPUR, MULTAN through its Partners and 4 others--Appellants

versus

BANK OF PUNJAB, MULTAN through Branch Manager--Respondent

R.F.A. No. 79 of 2007, heard on 25.9.2013.

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

----Ss. 9 & 22--Banker's Book Evidence Act, 1891--Scope--Suit for recovery alongwith mark up--Entries in statements of accounts were challenged--Statement of accounts were without any particulars, cannot be treated as statement of accounts--Validity--It is settled law that bank cannot charge mark up beyond expiry date of facility--No presumption of truth can be attached to incomplete statement of accounts and it is not sufficient to decree the suit unless supported with corroborative documents. [P. 84] A & B

2012 CLD 337, 2003 CLD 931, 2010 CLD 651, NLR 1981 SCJ 281, 2004 CLD 110 & 2004 CLD 162, rel.

Mr. Muhammad Suleman Bhatti, Advocate for Appellants.

Mr. Sohail Ahmad Janjoa, Advocate for Respondent.

Date of hearing: 25.9.2013.

Judgment

Abid Aziz Sheikh, J.--As we have heard the case at full length, therefore, we are deciding it as a Pakka Case. This appeal is filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 against the judgment and decree dated 22.02.2007 passed by the learned Judge Banking Court No. 1 Multan, whereby the learned Judge while dismissing the application for leave to defend of the appellants decreed the suit in favour of respondent-bank for Rs. 12,19,918/- with costs of the suit and cost of the funds.

1. Briefly, stated the facts of the case are that the respondent-Bank filed a suit for recovery of Rs. 12,19,918/- along with the markup against the appellants. The respondent-bank claimed that Appellant No. 1 was a partnership firm, whereas the Appellants No. 2 and 3 are its partners and the Appellants No. 4 and 5 were the guarantors of the finance availed by the Appellants No. 1 to 3, and further Appellants No. 2, 4 and 5 were also sued in capacity of mortgagor of the property to secure the finance facility extended by the respondent-Bank. As per contents of the plaint, on the request of the Appellant No. 1 through its partners, a cash finance limit of Rs. 1.5 millions was allowed vide sanction advice dated 21.11.1998. Subsequently, on the request of the appellants to the respondent-Bank the above facility was enhanced, however, mark up of Rs. 360480/- for the year 1998 and mark up of Rs. 322648/- for the year 1999 in respect of aforesaid facility remained outstanding in the accounts of the appellants. The respondent Bank further claimed that the appellants also availed a demand finance facility of Rs. 5,00,000/- on 09.01.2001 and the markup on the said demand finance facility was of Rs. 36790/- till 30.06.2001. The suit was filed for the recovery of the outstanding finance facility, which comes to Rs. 1219918/-.

2. The appellants filed a petition for leave to defend the suit and various entries of the statement of accounts were challenged and it was claimed that the appellants have paid back the entire outstanding amount claimed in the suit. The learned Banking Court vide judgment and decree dated 22.02.2007 dismissed the application of the appellants for leave to defend the suit and decreed the suit for the amount of Rs. 12,19,918/- with costs of the suit and cost of the funds. Hence, this appeal.

3. Learned counsel for the appellants argued that in the petition for leave to defend, the appellants have specifically challenged various entries in the statement of accounts. Adds that markup on the finance facilities CF.4 and CF.6 has been illegally charged beyond the expiry period. Submits that there is no disbursement shown in respect of Demand Finance facility (DF.13). The learned counsel further contends that the entries in the statement of accounts are without any particulars, therefore, it cannot be treated as statement of accounts under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 read with Banker's Book Evidence Act, 1891. Argued that none of the grounds raised in the petition for leave to defend was discussed and adjudicated in the impugned judgment, therefore, the same is liable to be set-aside and the appellants are entitled for the grant of leave to defend the suit. Reliance is placed on the cases of Apollo Textile Mills Limited and others Versus Soneri Bank Limited (2012 CLD 337), National Bank of Pakistan Versus Messrs Latif Shakir Textile Mills Limited and another (2007 CLD 1655), Haji Fazal Elahi and sons through Muhammad Tariq Versus Bank of Punjab and another (2004 CLD 162), MCB Bank Limited, Peshawar Versus Messrs Tila Frontier Fruit Company and others (2011 CLD 938), Messrs CM. Textile Mills (Pvt.) Limited thrugh Chairman and 5 others Versus Investment Corporation of Pakistan (2004 CLD 587), Messrs Multimed Marketers through Managing Partner and 7 others Versus United Bank Limited through Manager (2007 CLD 344), Messrs Muhammad Siddiq Muhammad Umar and another Versus The Australasia Bank Limited (PLD 1966 Supreme Court 684), Habib Bank Limited (Successor to Standard Bank of Pakistan Limited Versus Nazir Ali Awan (NLR 1981 SCJ 281), Bankers Equity Limited through Principal Law Officer and 5 others Versus Messrs Bentonite Pakistan Limited and 7 others (2003 CLD 931), Bankers Equity Limited and 5 others Versus Messrs Bentonite Pakistan Limited through Chief Executive and 7 others (2010 CLD 651), and Messrs Soneri Bank Limited Versus Messrs Compass Trading Corporation (Private) Limited through Director/Chief Executive and 3 others (2012 CLD 1302).

4. Conversely, the learned counsel for the respondent-Bank argued that the availing of finance facility is not denied by the appellants. Further submits that the suit of the bank is duly supported with the documents executed by the appellants. Adds that statement of accounts gives the complete details of the amount outstanding against the appellants, therefore, the impugned judgment and decree is lawfully passed. In this regard reliance is placed on the case of Habib Bank Limited Versus Taj Textile Mills Limited through Chief Executive and 5 others (2009 CLD 1143).

5. We have given our anxious consideration to the arguments of the learned counsel for the parties and have gone through the record.

6. The perusal of the record reveals that in the petition for leave to defend, the appellants have specifically challenged the amounts claimed in three finance facilities i.e. CF.4, CF.6 and DF.13. It is claimed in the petition for leave to defend that in respect of CF.4 only Rs. 54,35,436/- were received, whereas an amount of Rs. 61,40,676/- was charged by the Bank. The details of payment are also given in the petition for leave to defend. Regarding CF.6 it is claimed that Rs. 1,22,66,269.50 was received by the appellants whereas Rs. 1,35,87,292.50 was paid to the Bank, therefore, an excess amount of Rs. 1321023/- was paid in CF.6 Account. Further claimed that as already an excess amount of Rs. 23,86,743/- was paid in CF.4 and CF.6, therefore, there was no occasion to charge any amount under DF.13. With the assistance of the learned counsel for the parties we have seen the documents regarding three outstanding finance facilities. As per Bank's document, CF.4 was sanctioned vide sanction advice dated 21.11.1998 for Rs. 1.5 millions which was valid up to 30.09.1999, however, vide sanction advice dated 12.12.1998, the limit of CF.4 was enhanced to Rs. 1.8 millions, but its validity period was reduced to 31.05.1999 whereas in the statement of accounts markup was charged beyond 31.05.1999. The statement of accounts of CF.4 appended with the plaint shows that on 31.05.1999 the outstanding markup was of Rs. 1,51,261/- only and not Rs. 360480 as claimed by the Bank. The arguments of the learned counsel for the respondent-bank are that there is another sanction advice dated 25.02.1999 in respect of CF.4 whereby the limit was enhanced to Rs. 2.00 millions and the validity period was also extender up to 30.09.1999, however, the said sanction advice is neither mentioned in the plaint nor the bank is claiming the outstanding amount of CF.4 on the basis of the said sanction advice dated 25.02.1999 in the suit, therefore, the bank's claim of markup under CF.4 is seriously disputed. Regarding CF.6 facility of Rs. 2.00 million the same was approved vide sanction advice dated 16.10.1999 and its validity period was up to 31.05.2000. Even under the finance agreement dated 20.10.1999, the expiry period of the said facility was up to 31.5.2000. In the statement of accounts of CF.6 on 31.05.2000 the outstanding amount was shown as Rs. 1,59,772/- whereas the respondent-bank is claiming Rs. 3,22,648/- which is also a disputed claim. The learned counsel for the respondent-bank has no explanation to these figures. It is settled law that bank cannot charge markup beyond the expiry date of the facility. In this regard reliance is placed on case of Haji Fazal Elahi and Sons through Muhammad Tariq Versus Bank of Punjab and another (2004 CLD 162). It is settled law that where the documents and rate of markup is disputed, it is a ground for leave to defend the suit. In this context reliance is placed on the case of Allied Bank of Pakistan Limited Versus Mrs. Fahmida and 2 others (2004 CLD 110).

7. In respect of demand finance (DF.13) according to the sanction advice dated 06.01.2001, DF.13 facility for an amount of Rs. 0.5.00 million was a fresh facility valid up to 30.06.2001, however, as per the statement of accounts of DF.13 there is only one drawn/transfer entry without giving any particulars, and it does not show how and where the amount is disbursed.

8. We have also noted that in the statement of accounts filed by the respondent-bank regarding CF.4 and CF.6 in most of the entries, the particulars of the transactions are not given. In our view no presumption of truth can be attached to this incomplete statement of accounts and it is not sufficient to decree the suit unless supported with corroborative documents. In this regard reliance is placed on the case of Muhammad Ayub Khan Versus Husssain Khan etc. (NLR 1981 SCJ 281), Bankers Equity Limited and 5 others Versus Messrs Bentonite Pakistan Limited through Chief Executive and 7 others (2010 CLD 651) and Bankers Equity Limited through Principal Law Officer and 5 others Versus Messrs Bentonite Pakistan Limited and 7 others (2003 CLD 931), Apollo Textile Mills Limited and others Versus Soneri Bank Limited (2012 CLD 337).

9. We have also gone through the judgment passed by the learned Banking Court and found that none of the grounds raised in the petition for leave to defend were discussed and adjudicated while decreeing the suit of the respondent-bank.

10. As discussed above, we are of the view, that the appellants have raised substantial questions of law and facts in the petition for leave to defend and such question cannot be decided without framing of issues and recording of evidence. Accordingly, this appeal is allowed, the impugned judgment and decree dated 22.02.2007 passed by the learned Banking Court is set-aside. The appellants' application for leave to defend the suit is granted subject to furnishing surety to the satisfaction of the learned Judge Banking Court and the matter is remitted back to the learned Banking Court to decide the case after framing of issues and recording of the evidence of the parties in according with law. No order as to costs. Requisitioned record be remitted back to the concerned Court forthwith. Parties are directed to appear before the Banking Court on 14.10.2013.

(R.A.) Appeal allowed

PLJ 2014 Lahore 85 [Rawalpindi Bench Rawalpindi]

Present: M. Sohail Iqbal Bhatti, J.

RASHID ALI--Petitioner

versus

SECRETARY INDUSTRIES, etc.--Respondents

W.P. No. 2344 of 2013, decided on 28.11.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Sasti roti scheme--Policy introduced to establish mechanical tandoors was closed--Challenge to--Maintainability of writ petition--High Court cannot interfere into policy matters of Government--Validity--High Court cannot sit as a Court of appeal over policy decisions and substitute its own decision with decision of Govt. unless it is proved that decision had been made in excess of jurisdiction or same is arbitrary and devoid of any justification. [P. 88] A

Constitution of Pakistan, 1973--

----Arts. 174 & 199--Civil Procedure Code, (V of 1908)--S. 79--Constitutional petition--Sasti Roti Scheme was closed--Challenge to--Domain of executive and interference in such domain was not function of High Court--Validity--High Court might had interfered in policy being violative of constitutional mandate--No such embargo was placed and petitioner was allowed to operate mechanical tandoors on commercial basis, the act of govt. regarding suspension of flours at subsidized rate should not be interfered--Petitioner had filed instant petition to avoid repaying loan facility and cheque issued by petitioner was dishonoured--Petitioner had failed to implead Govt. of Punjab in array of respondents which was mandatory provision as enumerated in S. 79, CPC and Art. 174 of Constitution, hence--Petition was not maintainable. [P. 88] B & C

2013 SCMR 1749, 2010 SCMR 115, 2011 CLC 116, 1998 SCMR 2268, rel.

Raja Muhammad Farooq, Advocate for Petitioner.

Mr. Khurshid Ahmad Satti, AAG.

Mr. Kashif Mushtaq, Senior Law Officer for Respondents-Department.

Date of hearing: 28.11.2013.

Order

Through this constitutional petition, the petitioner has sought indulgence of this Court by making the following prayer:--

(A) By accepting the instant constitutional petition act of closure of the mechanical roti plants with the discontinuation of supply of flour on subsidized rates and without notice to the public-at-large and to the plant holders may very graciously be decided illegal, unlawful, without lawful authority and jurisdiction.

(B) That the refund and recovery of loan facility from the plant holders and the petitioner may very graciously be declared illegal, mala fide, unlawful, without lawful authority and jurisdiction.

(C) That the respondents be directed to restore the position of mechanical roti plants as per the policy, rules, commitment and agreements for which modalities may be taken recourse to with such changes as may be deemed to the functionality of the mechanical roti plants in the event of rise in the prices in the interest of justice.

1. Learned counsel for the petitioner submits that "sasti roti scheme" was introduced by Government of the Punjab through Ordinance No. III of 2009 published in the official gazette on 10.9.2009 and thereafter, a policy was introduced inviting the public-at-large to establish mechanical tandoors. The successful applicants were provided financial facility of Rs. 2,35,000/- each and also flour was supplied at a subsidized rate. The Government has now changed the policy and stopped providing subsidized flour to the petitioner which has resulted into the closure of his mechanical tandoor and at the same time, the petitioner is being issued a notice by Punjab Small Industries Corporation for payment of an installment of Rs. 16,090/- which is prejudicial to his rights.

2. Conversely, the learned Assistant Advocate General appearing on behalf of the respondents has raised the objections regarding maintainability of the instant petition as Province of the Punjab has not been impleaded as a party in the array of respondents, the writ petition comes within the mischief of judgment of the august Supreme Court of Pakistan reported in 2010 SCMR 115 (Government of Balochistan, CWPP&H Department and others versus Nawabzada Mir Tariq Hussain Khan Magsi and others). It is further contended that there is an arbitration clause in the Ordinance and this Court should not interfere in the matter and the petitioner be directed to have a recourse to Arbitration.

3. Learned Law Officer has further submitted that this Court should not interfere into the policy matters of the Government and has relied upon 2011 CLC 116 (Lahore) (Safdar Jamil and others versus Vice-Chancellor and others). It has been further contended that in fact, the petitioner has filed this writ petition to settle the contractual disputes and this Court does not have the jurisdiction to adjudicate upon such kind of disputes in view of the law laid down in 1998 SCMR 2268 (Messrs Airport Support Services versus The Airport Manager, Quaid-e-Azam International Airport Karachi and others).

4. The learned Law Officer appearing on behalf of Respondent No. 1 has adopted the arguments advanced by the learned Law Officer adding that the Government had received different complaints regarding misuse of subsidized flour. Moreover, the subsidized flour was supplied to the mechanical tandoors in order to provide relief to the poor. There is no embargo placed upon the petitioner to run his tandoor on commercial basis and the Government while suspending the supply of flour has also facilitated the petitioner and others by deferring the recovery of loans for an appropriate period.

5. I have considered the arguments advanced from both the sides and perused the record.

6. The learned counsel for the petitioner has failed to point out any document suggesting that the mechanical tandoors have been closed and thus the prayer of the petitioner that Government be directed to restore the operation of mechanical tandoors is misconceived. Moreover, this Court in view of the law laid down in 1998 SCMR 2679 (Institute of Chartered Accountants of Pakistan, Karachi and others versus Federation of Pakistan and others) should not travel in the domain of policy matters which requires consideration of various factual aspects. The High Court cannot sit as a Court of appeal over the policy decisions and substitute its own decision with the decision of the Government unless it is proved that the decision has been made in excess of jurisdiction or the same is arbitrary and devoid of any justification.

7. The Hon'ble Supreme Court of Pakistan in a judgment reported in 2013 SCMR 1749 titled "Dossani Travels (Pvt.) Ltd. And 4 others versus Messrs Travels Shop (Pvt.). Ltd and others" held that policy making is the domain of the Executive and interference in such domain was not the function of the High Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 unless it is violative of the Constitution, law or was product of mala fide.

8. Had there been any embargo placed on the running of tandoors, this Court might have interfered in the policy being violative of the constitutional mandate. Since no such embargo is placed and the petitioner is allowed to operate mechanical tandoors on commercial basis, the act of the Government regarding suspension of flours at subsidized rate should not be interfered. Apparently the petitioner has filed this writ petition to avoid repaying the loan facility and the Cheque issued by the petitioner on 24.9.2013 was also dishonoured.

9. The petitioner has failed to implead Government of the Punjab in the array of respondents which is a mandatory provision as enumerated in Section 79, CPC and Article 174 of the Constitution of the Islamic Republic of Pakistan, 1973, hence this petition is not maintainable.

10. In view of my observations, this writ petition being devoid of any force is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 89 [Multan Bench Multan]

Present: Shoaib Saeed, J.

SYED IFTIKHAR HUSSAIN NASIR--Petitioner

versus

PUNJAB PUBLIC SERVICE COMMISSION, LAHORE through Chairman and 6 others--Respondents

W.P. No. 448 of 2012, decided on 30.9.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Recruitment of Zilladar--Application was rejected on ground of mentioning wrong zone--Failed to submit attested copies--Petitioner was asked to get his name corrected within 10 days failing which his interview would be considered as cancelled--Non-production of the certificate within period--Correction of name by Board had to be made under procedure and rules being a time consuming process and beyond control validity--Petitioner possesses degrees of double M.A. and L.L.B. much higher qualifications than those mentioned in advertisement, is legitimately eligible for appointment as Zilladar--By not recommending his name on pretext of failure to deliver correct certificate within time frame desired was absolutely unjustified respondents were directed to recommend name of petitioner for appointment for post of Zilladar--Petition was allowed. [Pp. 90 & 91] A & B

Mr. Shahid Iqbal Khan, Advocate for Petitioner.

Mr. Mubashar Latif Gill, A.A.G. for Respondents.

Date of hearing: 30.9.2013.

Order

Brief facts giving rise to this writ petition are that vide advertisement No. 28/2010 Respondent No. 3 sought recruitment for 102 posts of Zilladar (BS-14) through out Punjab. Petitioner also applied for appointment as Zilladar against the post mentioned at Sr. No. 7 for L.B.D.C. Improvement Project in case No. 16-E7/10. Five posts without any specification were mentioned in the relevant column of the advertisement. Application was submitted through an application form issued by the Punjab Public Service Commission. Domicile of the petitioner in the said form was mentioned in the relevant column of "Khanewal". Petitioner qualified the written exam. Respondent No. 5 vide rejection letter dated 13-4-2011 intimated that petitioner failed to submit attested copies of the following documents by the closing date:--

(i) Experience Certificate

(ii) Departmental Permission issued by the Appointing Authority

(iii) Valid National Identity Card.

In Column No. 2 of the rejection letter, it was mentioned that in case of rejection aggrieved, may file a representation to the Secretary/ Respondent No. 3 within seven days, petitioner submitted the aforesaid documents within the stipulated time alongwith representation. On receipt of the aforesaid documents, petitioner was called for an interview. Later vide letter dated 25-7-2011 petitioner was intimated that his application was rejected on the ground of mentioning wrong zone. However, at the bottom of the said letter it is mentioned that the Commission has decided to consider petitioner's candidature against the post of Zilladar L.B.D.C. Improvement Project Zone as his district of domicile fell under this Zone. Thereafter on 15-10-2011 four candidates were recommended by the Punjab Public Service Commission for appointment to the post of Zilladar L.B.D.C. Improvement Project Zone in the Punjab Irrigation and Power Development but petitioner's name was dropped.

1. In parawise comments, it was submitted that at the time of interview it was observed that petitioner's name on the Matriculation Certificate was written as Syed Iftikhar Hussain whereas on all other documents his name was written as Syed Iftikhar Hussain Nasir. Petitioner was asked to get his name corrected within 10 days failing which his interview would be considered as cancelled.

2. Petitioner approached the Board of Intermediate & Secondary Education, Multan in this regard and was accordingly issued Secondary School Certificate mentioning his name as Syed Iftikhar Hussain Nasir which he dispatched under the postal receipt to the respondents but without any success. The refusal as provided in Ground (d) of the parawise comments came about on account of non-production of the said certificate within the period as desired by the respondents. Correction of name by the relevant Board had to be made under the procedure and rules of the Board being a time consuming process and beyond the control of the petitioner. The petitioner possesses degrees of M.A. (Political Science), L.L.B., M.B.A. and M.A. (Pak Study) much higher qualifications than those mentioned in the advertisement is legitimately eligible for appointment as Zilladar. By not recommending his name on the pretext of failure to deliver the correct Secondary School Certificate within the time frame desired by the respondents is absolutely unjustified.

3. In view of the above, this writ petition is allowed. Respondents are directed to recommend the name of the petitioner for appointment in the Punjab Irrigation and Power Department against one vacant seat for the post of Zilladar LBDC Improvement Project Zone within shortest possible time. However, respondents are well within their right to get the corrected matriculation certificate duly verified from the relevant Board.

(R.A.) Petition allowed

PLJ 2014 Lahore 91 [Multan Bench Multan]

Present: Shoaib Saeed, J.

NASRULLAH KHAN NASIR, SUB-DIVISIONAL OFFICER/ASSTT. MANAGER (OPERATION) MEPCO, JAHANIAN--Petitioner

versus

SECRETARY MINISTRY OF WATER & POWER, ISLAMABAD and 2 others--Respondents

W.P. No. 9038 of 2013, decided on 3.10.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Imposition of penalty of censure--Penalty of stoppage of one annual increment for a period of two years without future effect--Converted into penalty of censure--Validity--Censure orders and marks deducted at the time of promotion by MEPCO as punishment of censure were declared unlawful, illegal and in negation to judgments reported in PLJ 2006 SC 1429--Petition was allowed. [P. 93] A

Sardar Muhammad Sarfraz Dogar, Advocate for Petitioner.

Rao Muhammad Iqbal, Advocate for Respondents.

Date of hearing: 3.10.2013.

Order

This writ petition is directed against the order dated 10-04-2013 whereunder penalty of "stoppage of one annual increment for a period of two years without future effect" imposed upon the petitioner was converted into penalty of "Censure".

1. Brief facts of the case are that petitioner joined WAPDA (Respondent No. 1) whereafter services of the petitioner were transferred to MEPCO (Respondents No. 2-3). Petitioner was protected and governed by the rules being applied on WAPDA employees and after repealing of Special Order of Removal from Service Act, 2000. The WAPDA Employees (Efficiency and Discipline) Rules, 1978 became applicable.

2. Prior to Section 17(1-B) of WAPDA Act, its employees were deemed to be civil servants but in the cases reported as Mobeen-ul-Islam Versus Federation of Pakistan (PLD 2006 SC 602), Section 2-A of the Civil Service Act was declared as ultra vires to the Constitution since the deeming clause was struck down, henceforth, the authorities/employees who do not fall within the definition of civil servant were excluded from the jurisdiction of Federal Service Tribunal.

3. There is no cavil to the preposition that MBPCO is a Private Limited Company and working in connection with the affairs of the federation and its employees are entitled to issuance of writ under Article 199(3) of the Constitution of Islamic Republic of Pakistan.

4. Moreover, 100% shares of respondents are owned by the Federal Government and Company is run by the finance provided by the Ministry of Finance through Ministry of Water & Power, thus MEPCO is fully controlled and managed by the Federal Government for all contents and purposes and is amenable to writ jurisdiction.

5. Petitioner was rendering his services with MEPCO Sub-Division Fazil Pur while checking of progress of the said Sub-Division, shortage of an amount of Rs. 2.59(million) in C.P-114 was found which resulted into revenue loss to MEPCO. Petitioner not only kept silent but also failed to initiate action against the defaulters. As a consequence show cause notice under the Rules supra Letter No. 13929 dated 30th August, 2011 was issued by the respondents and finally penalty of "stoppage of one annual increment (when due) for a period of two years without future effect" was imposed vide office Order No. 982-18617-23 dated 02-12-2011. Reply to the said notice was filed.

6. Later appeal before Respondent No. 2 was filed but the imposed penalty was converted into "Censure" vide office order No. 341/5517-25 dated 10-4-2013.

7. It was contended by the petitioner that revenue loss caused due to heavy floods which effected the area on 22-07-2010. Natural calamity/drastic situation was beyond human control not only inhabitants of the area suffered huge losses, MEPCO also suffered in the shape of transformers poles, etc. After imposition of penalty of "Censure" under WAPDA Promotion Policy 1.5 marks are to be deducted at the time of promotion. The said deduction is applicable/ considered at the time of every Promotion Board which is applied a number of times for the same purpose, petitioner has suffered on account of the said penalty, his promotion/up-gradation is blocked. The said act of the respondents is against the basic principle as enshrined in the fundamental right guaranteed under Articles 8 and 13 of the Constitution which states that no body could be vexed twice for one offence. Reliance is placed on 2008 PLC (CS) 637.

8. The question with regard to the effect of "Censure" was dilated upon by the Hon'ble Supreme Court in case of Abdul Majeed Versus Government of Pakistan reported in PLJ 2006 S.C. 1429 wherein it was held "as Censure was minor penalty of the sort of warning which might have not a serious stigma effecting the service career of the person". Same point was also dealt with by the Apex Court in the Human Right Case No. 5 of 2009 in its order dated 07-04-2009 the learned Bench concurred with the above referred judgment and held that "Censure" is not a serious stigma debarring a person/employee to enjoy future professional career". The Peshawar High Court while dealing with the effect of punishment of Censure on promotion prospects of PEPCO employees in the case Munsif Shah versus PEPCO through Managing Director, Lahore and four others (2013 PLC (CS) 223) held that Censure being minor penalty was not hurdle in way of promotion of an employee.

9. In view of the judgment of the Hon'ble Supreme Court of Pakistan in case titled as Abdul Majeed Versus Government of Pakistan reported in PLJ 2006 S.C. 1429 and Human Right Case No. 5 of 2009 dated 7-4-2009 the dictum laid down by the Hon'ble Apex Court is absolutely clear wherein their Lordships have opined that "Censure" is not a stigma from, debarring a person/employee to enjoy future professional career or to effect his promotion. This Court followed the dictum in case Muhammad Umar Lodhi. XEN (Operations) Versus WAPDA & two others.

10. As a consequence, Censure orders and 1.5 marks deducted thereunder, at the time of promotion by MEPCO as punishment of Censure are declared unlawful, illegal and in negation to the judgments of the Hon'ble Supreme Court of Pakistan. This writ petition is allowed and respondents (MEPCO Authorities) are directed not to deduct 1.5 marks as penalty of Censure while considering the promotion of the petitioner.

(R.A.) Petition allowed

PLJ 2014 Lahore 94 (DB) [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad and M. Sohail Iqbal Bhatti, JJ.

Haji SIKANDAR--Petitioner

versus

HOME SECRETARY, etc.--Respondents

I.C.A. No. 49 of 2012, decided on 28.11.2013.

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

----S. 402-C--Constitution of Pakistan, 1973, Arts. 2-A & 45--Law Reforms Ordinance, 1972, S. 3--Intra Court Appeal--Illegal remissions were allowed in violation to Section 402-C, Cr.P.C.--Art. 45 of Constitution cannot be circumscribed by subordinate legislation--Question--Whether Section 402-C, Cr.P.C. which was subordinate legislation, can circumvent powers of president--Test to determine vires was whether subordinate law conflict with higher law--Validity--It is settled principle of Constitutional interpretation that a provision enshrined in Constitution shall prevail notwithstanding anything contrary contained in a piece of subordinate legislation--Under Art. 45 of Constitution cannot be tested at touch stone of Art. 2-A of Constitution--President under Art. 45 of Constitution are determined at touch stone of Art. 2-A, then most of Articles of Constitution will become questionable on ground of inconsistency with provisions of Art. 2-A--Where Supreme Court refused to test vires of Art. 45 at touch stone of subordinate legislation, i.e. Section 402(c), Cr.P.C.--In view of S. 402-C, Cr.P.C. remissions cannot be allowed by president u/Art. 45 of Constitution. [Pp. 96 & 97] A, B, C, D & E

PLD 2006 SC 365, PLD 2010 SC 1021, PLD 1992 SC 595, PLD 1993 SC 473 & PLD 1995 SC 66, ref.

Ch. Imran Hassan Ali, Advocate for Appellant.

Sher Afzal Khan, Advocate for Respondent No. 8.

Mr. Khurshid Ahmad Satti, AAG with Tahir Assistant Superintendent Jail for State.

Date of hearing: 28.11.2013.

Judgment

M. Sohail Iqbal Bhatti, J.--This appeal is directed against the judgment dated 20.02.2012 passed in W.P. No. 789/2001 through which the learned Single Judge in Chamber relying upon Muhammad Arif Versus Superintendent Central Jail, Lahore and 2 others (PLD 2006 Lahore 561) upheld the remissions granted to Respondent No. 8 and dismissed W.P. No. 789/2001 and W.P.No. 929/2001.

1. Learned counsel for the appellant has hinged his arguments on Section 402-C, Cr.P.C., submitting that the illegal remissions were allowed to Respondent No. 8 in violation to Section 402-C, Cr.P.C. Learned counsel for the appellant has further relied upon Mumtaz Ali Khan Rajban and other Versus Federation of Pakistan and others (PLD 2001 Supreme Court 169), Tanveer Hussain Versus Divisional Superintendent Pakistan Railways and 2 others (PLD 2006 Supreme Court 249) and Ahmad Khan Niazi Versus Town Municipal Administration Lahore through Town Municipal Officer and 2 others (PLD 2009 Lahore 657) wherein the principle of implied repeal has been discussed.

2. Learned counsel for Respondent No. 8 has relied upon Nazar Hussain and another Versus The State (PLD 2010 Supreme Court 1021), Hakim Khan and 3 others Versus Government of Pakistan through Secretary Interior and others (PLD 1992 Supreme Court 595), Abdul Malik and others Versus The State and others (PLD 2006 Supreme 365) while arguing that Article 45 of the Constitution of the Islamic Republic of Pakistan, 1973 cannot be circumscribed by a subordinate legislation. He has further been argued that in view of law laid down in Pakistan through the Secretary, Ministry of Finance Versus Muhammad Himayatullah Farukhi (PLD 1969 Supreme Court 407) the principle of locus poenitentia is fully applicable in this case. He has further relied upon Chairman, Section Committee/Principal, King Edward Medical College, Lahore and 2 others Versus Wasif Zamir Ahmad and another (1997 SCMR 15), as according to him the remissions have taken legal effect and cannot be withdrawn.

3. Heard. Record perused.

4. We are inclined to dilate upon the legal proposition as to whether Section 402-C, Cr.P.C., which is subordinate legislation, can circumvent the powers of the President under Article 45 of the Constitution of the Islamic Republic of Pakistan, 1997.

5. The Hon'ble Supreme Court of Pakistan in a judgment reported as Pir Sabir Shah Vs. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P and another (PLD 1995 Supreme Court 66) has held that "when the Parliament makes a sub-constitutional law, it does so in the exercise of its delegated legislative power given by the Constitution, and in the case of subordinate legislation, also, the maker exercises delegated authority. In each case, there is a law higher in authority, and the test to determine the vires is whether the subordinate law conflicts with the higher law. If it does, then it must be treated as of no legal validity."

6. Article 45 of the Constitution of the Islamic Republic of Pakistan, 1997 reads as under:

"The President shall have powers to grant pardon, reprieve and respite and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority."

1. The Hon'ble Supreme Court of Pakistan in a judgment reported as Mian Muhammad Nawaz Sharif Versus President of Pakistan and others (PLD 1993 Supreme Court 473) has interpreted the significance of the word "shall" in the constitutional scheme in the following terms:

"The word `shall' is generally imperative or mandatory. It is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation."

1. It is a settled principle of constitutional interpretation that a provision enshrined in the constitution shall prevail notwithstanding anything contrary contained in a piece of subordinate legislation. This brings us to the conclusion that under Article 45 of the Constitution the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President. Similarly the Provincial Government and other authorities competent under the law can grant remissions to the prisoners in accordance with the law and rules framed therein. It might not be out of place to mention that the Hon'ble Supreme Court in a case reported as Hakim Khan and 3 others Versus Government of Pakistan through Secretary Interior and others (PLD 1992 Supreme Court 595) discussed the effect of Article 2-A of the Constitution of the Islamic Republic of Pakistan, 1973, which had been made an integral part of the Constitution. It was held that powers under Article 45 of the Constitution cannot be tested at the touch stone of Article 2-A of the Constitution of the Islamic Republic of Pakistan, 1973. The Hon'ble Supreme Court went on to observe that if the powers of the President under Article 45 of the Constitution are determined at the touch stone of Article 2-A then most of the Articles of the Constitution will become questionable on the ground of their inconsistency with the provisions of Article 2-A. If Article 2-A is held to be a supra Constitutional provision then it would require the framing of an entire new Constitution.

2. It is significant to mention here that basically Section 402-C of the Cr.P.C. has been incorporated in the subordinate legislation in exercise of powers conferred by the Constitution i.e Article 2-A or Article 227 of the Constitution of the Islamic Republic of Pakistan, 1973. It does not appeal to reason that where the Supreme Court has refused to test the vires of Article 45 of the Constitution at the touch stone of Article 2-A how this Court would test the vires of Article 45 at the touch stone of subordinate legislation i.e Section 402-C of the, Cr.P.C.

3. It has been held by the Hon'ble Supreme Court of Pakistan in a judgment reported as Nazar Hussain and another Versus The State (PLD 2010 Supreme Court 1021) that the powers of the President under Article 45 of the Constitution are part of the Constitutional scheme and cannot be circumscribed by any subordinate legislation. In the event of conflict between the two, the former has to prevail and thus, re-affirmed the law laid down in Abdul Malik and others Vs. The State others (PLD 2006 Supreme Court 365) that under Article 45 of the Constitution the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President.

4. Even if the argument of the petitioner is accepted that Section 402-C, Cr.P.C. has impliedly repealed Pakistan Prison Rules it would be of no help to the appellant in view of our discussion relating to Article 45 of the Constitution of the Islamic of Pakistan, 1973. In this view of the matter, we are not convinced with the arguments of the learned counsel for the appellant that in view of Section 402-C, Cr.P.C. remissions cannot be allowed by the President under Article 45 of the Constitution.

5. For what has been discussion above, we are not inclined to interfere with the judgment passed by the learned Single Judge in Chamber and dismiss the same.

(R.A.) ICA dismissed

PLJ 2014 Lahore 97 [Multan Bench Multan]

Present: Atir Mahmood, J.

JAMIL HUSSAIN SHAH etc.--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, JAMPUR etc.--Respondents

W.P. No. 2281 of 2010, decided on 29.10.2013.

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

----Ss. 12(2) & 115--Limitation Act, (IX of 1908), S. 18--Declaratory suit was filed on basis of un-dated agreement to sell--Conceding statement trial Court decreed the suit without asking for filing written statement--Application u/S. 12(2), CPC can be filed within three years from date of knowledge--Fictitious person was produced before trial Court to get decree--Validity--Revisional Court committed a grave jurisdictional error while ignoring the provisions of S. 18 of Limitation Act. [P. 101] A

PLD 2006 Lah. 181, rel.

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

----S. 12(2), O. I, R. 10--Undated declaratory suit--Advocate who appeared on behalf of judgment debtor was not impleaded as party while filing application u/S. 12(2), CPC was without substance--Validity--An application under Order 1, Rule 10, CPC was filed on behalf of petitioners to implead the advocate but that application was opposed by decree holder and was turned down by Courts below--Since petitioner discharged such onus to prove that advocate was never appointed as counsel through general attorney then onus shifted to decree holder to rebut same through production of his evidence and in that eventuality would had produced the witness by summoning him through the Court establish that advocate was legally appointed for judgment debtor--Judgment passed by First Appellate Court was not sustainable in eye of law as it had been passed without application of judicious mind and suffers from material illegality--Petition was allowed. [P. 102] B & C

M/s. Malik Waqar Haider Awan and Muhammad Ali Siddique, Advocates for Petitioners.

Mr. Athar Rehman Khan, Advocate for Respondents.

Date of hearing: 29.10.2013.

Judgment

Through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, the petitioners have challenged the order dated 04.03.2010 passed by the learned Additional District Judge, Jampur, District Rajanpur, who accepted the revision petition filed by Respondent No. 2 and set-aside the order dated 07.09.2009 passed by the learned Civil Judge Class-II, Jampur, whereby the application under Section 12(2), CPC filed by the petitioners was accepted.

1. Brief facts of the case are that the petitioners and Respondent No. 3 filed an application under Section 12(2), CPC in the Court of Civil Judge, Jampur to challenge the validity of judgment and decree passed on 15.11.1997 in a declaratory suit filed by Respondent No. 2 against Basharat Ali, predecessor of the applicants and through the impugned decree, plaintiff has been declared owner of 215 Kanals and 12 marlas of land owned by Basharat Ali, defendant. The declaratory suit was filed on the basis of some un-dated agreement to sell. Respondent No. 2 appealed in the Court in response to the notice issued by the Court and filed his reply. After filing the reply the learned trial Court framed the issuer. There-after the applicants during the pendency of said application, applied for impleading Mr. Zia-ud-Din, Advocate as respondent in the application under Section 12(2), CPC, who allegedly appeared in the suit on behalf of the defendant. After hearing the parties the learned trial Court dismissed the said application on 07.03.2006. The applicant Syed Manzoor Hussain appeared in the trial Court as a witness as A.W.-1 and also produced documents. Respondent No. 2 appeared as RW-1 in his oral evidence and produced documentary evidence as well. The learned Civil Judge, Jampur accepted the application under Section 12(2), CPC filed by the applicants/petitioners vide its order dated 07.09.2009 and by setting-aside the judgment and decree passed on 15.11.1997, suit filed by Respondent No. 2 was restored. Feeling dissatisfied Respondent No. 2 filed a revision petition before the learned Additional District Judge, Jampur against the order dated 07.09.2009 which was accepted vide its judgment dated 04.03 2010 and dismissed the application filed by the applicants.

2. Learned counsel for the petitioners has contended that the impugned judgment dated 04.03.2010 passed by the learned Additional District Judge, Jampur is illegal, unwarranted and is liable to be set aside; that the learned Additional District Judge, Jampur while passing the impugned judgment has not applied his judicious mind; that the suit for declaration on the basis of agreement to sell was not maintainable and the learned Additional District Judge, Jampur has absolutely ignored this fact of the case and without giving findings on this point, reversed the finding recorded by the learned trial Court on application under Section 12(2), C.P.C.; that Respondent No. 2 previously had been obtaining fake decrees from the Courts which have been set-aside and the present case was also a result of that series; that the address of Basharat Ali was wrongly mentioned in the suit; That Syed Manzoor Hussain shah neither appointed Mr. Zia-ud-Din Khan, Advocate as his counsel nor recorded his statement and the trial Court rightly passed the order; that it is admitted from the evidence produced by both the parties that the applicants are in possession of the property in dispute; that the applicants have fully proved that fraud has been committed while obtaining the impugned judgment and decree; that the findings recorded by the learned trial Court while accepting application under Section 12(2), CPC have been reversed by the learned Additional District Judge without any legal reasons, therefore, the impugned order is liable to be set-aside. He has relied upon the judgments reported as Mst. Rasool Bibi through Legal Heirs Versus Additional District Judge, Sialkot and another (PLD 2006 Lahore 181) Sheikh Muhammad Sadiq Versus Elahi Bakhsh and 2 others (2006 SCMR 12) and Ilahi Bakhsh Versus Sheikh Muhammad Sadiq and 2 others (2005 CLC 1704).

3. On the other hand learned counsel for Respondent No. 2 has vehemently opposed this petition and supported the impugned order. Learned counsel for Respondent No, 2 has contended that the impugned order is well reasoned and the learned Additional District Judge has committed no illegality or irregularity in delivering the same, therefore, this writ petition is liable to be dismissal.

4. I have heard the learned counsel for the parties and have also gone through the available record.

5. The facts which are admitted by the parties are that a suit for declaration with confirmation with possession was filed by Respondent No. 2 against one Basharat Ali, the father of the present Respondent No. 3. On 24.10.1997, summons were issued on the same day to the said defendant for 15.11.1997 and on that day one Zia-ud-Din, Advocate appeared on behalf of the defendant alongwith alleged general attorney namely Syed Manzoor Hussain Shah (present petitioner No. 2) and got recorded a conceding statement for decreeing the suit. In view of the conceding statement the trial Court decreed the suit on the same date i.e. 15.11.1997 without asking for filing the written statement.

6. Through the impugned judgment dated 04.03.2010, the present petitioners have been non-suited on two grounds firstly that the application under Section 12(2), CPC was barred by time as the decree was passed on 15.11.1997 and the application was filed after a delay of 5« years and secondly that the petitioners failed to implead Zia-ud-Din, Advocate as respondent or to produce him as a witness. From the perusal of the impugned judgment and the evidence of the parties, it reflects that the revisional Court failed to take into consideration the provisions of Section 18 of the Limitation Act, 1908 which provide that the application under Section 12(2), CPC can be filed within three years from the date of knowledge. In the present case the date of knowledge has been mentioned as 29.06.2003 while filing the application under Section 12(2), CPC and thereafter when Syed Manzoor Hussain Shah, Petitioner No. 2 appeared as AW-I, he categorically asserted his knowledge on the said date. Inspite of a lengthy cross-examination, Respondent No. 2 could not controvert the date of knowledge of the petitioners. The Respondent No. 2 appeared as his own witness as RW-I. He deposed that Syed Manzoor Hussain Shah alongwith Zia-ud-Din, Advocate appeared before the trial Court and made the conceding statement. As per the statement of AW-1, Syed Manzoor Hussain Shah was identified by Zia-ud-Din, Advocate. In cross-examination, he stated that he cannot tell whether the summons were issued in the name of Basharat Ali, defendant or not. He further stated that he cannot tell that what was written in the suit for declaration against the defendant Basharat Ali. He further stated that Basharat Ali could not appear before the Court on account of his old age but his attorney Syed Manzoor Hussain Shah appeared over there. He also could not tell that what was written in the power of attorney in favour of present Respondent No. 2. However, he denied the suggestion that a fictitious person was produced before the trial Court to get the decree in his favour. In my opinion, the revisional Court committed a grave jurisdictional error while ignoring the provisions of Section 18 of the Limitation Act, 1908. The guidance is sought from the case reported as Mst. Rasool Bibi through Legal Heirs Versus Additional District Judge, Sialkot and another (PLD 2006 Lahore 181). The relevant portion of the said judgment reads as under:

"It is the case of the petitioner that the decree was procured fraudulently and by misrepresentation and their predecessor Jehan Khan and they were kept in dark about the passing of the decree in a fraudulent manner, thus according to the above section, the period of limitation, which is prescribed for filing an application under Section 12(2), CPC under Article 181, shall commence when the petitioner attained the knowledge A in August, 1993, thus the application has been filed within the period of the limitation and the petitioners were not supposed to explain why the application was not filed within the prescribed period however, if the period of limitation has expired as no case under Section 18 was made, then obviously the application under Section 5 of the Limitation Act, if applicable to such cause, should have been moved by the petitioner. The view taken by the learned revision Court is absolutely misconceived and illegal".

The guidance is also sought from the judgment reported as Sheikh Muhammad Sadiq Versus Elahi Bakhsh and 2 others (2006 SCMR 12). The relevant portion of the said judgment reads as under:--

"This is settled law that limitation for setting aside an order obtained through fraud or misrepresentation, would start from the date of knowledge and in the present case, the respondent has categorically stated that he filed application under Section 12(2), CPC immediately on coming to know about the decree in 1986, therefore, in absence of any evidence to the contrary, the presumption would be that respondent had no knowledge of decree, before 1986 and consequently, we would take no exception to the verdict given by the High Court on the question of limitation".

As regards the second reasoning which prevailed upon the revisional Court that the counsel namely Zia-ud-Din, Advocate, who appeared on behalf of the judgment-debtor/defendant was not impleaded as party while filing the application under Section 12(2), CPC is also without substance. It is evident from the perusal of the record that an application under Order I Rule 10, CPC was filed on behalf of the petitioners to implead the said Advocate but that application was seriously opposed by Respondent No. 2/decree-holder and was turned down by the Court below. Since the petitioner discharged this onus to prove that the said Zia-ud-Din, Advocate was never appointed as counsel of Basharat Ali (deceased defendant) through his general attorney Syed Manzoor Hussain Shah then the onus shifted to Respondent No. 2/decree-holder to rebut the same through production of his evidence and in that eventuality Respondent No. 2 would have produced the said witness by summoning him through the Court to establish that the said advocate was legally appointed counsel for the judgment-debtor. The petitioners have also produced certified copies of Civil Cases as Exhibit A.-4 to A-10, wherein Respondent No. 2 has been benefited in the same circumstances. Exh. P-9 is a copy of the suit for declaration regarding property measuring 72 kanals and 9 marlas of land which was filed or 06.10.1997 and was decreed on 23.12.1997 in the just identical manner wherein the said advocate Zia-ud-Din was the counsel for the other side who conceded the claim of Respondent No. 2, the plaintiff in the said suit. All the evidence produced by the petitioners has not been rebutted or controverted by production of any credible evidence by Respondent No. 2. Without touching the other merits of the case which may effect the rights of the either party, it is held that the judgment dated 04.03.2010 passed by the learned Additional District Judge, Jampur is not sustainable in the eye of law as it has been passed without application of judicious mind and suffers from material illegality and material irregularity.

1. For what has been discussed above, this petition is allowed by setting-aside the judgment dated 04.03.2010 passed by the learned Additional District Judge, Jampur and the order dated 07.09.2009 passed by the learned Civil Judge 1st Class, Jampur is upheld.

(R.A.) Petition allowed

PLJ 2014 Lahore 103 (DB) [Multan Bench Multan]

Present: Amin-ud-Din Khan and Abid Aziz Sheikh, JJ.

HAIDER ALI KHAN & another--Appellants

versus

Mst. RAZIA BEGUM and 7 others--Respondents

R.F.A. No. 110 of 2007 and C.M. Nos. 1482-C of 2009, 1972-C of 2011, heard on 1.10.2013.

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

----O. VI, R. 17--Claim of oral gift without any date mentioned in it--Permission to amend plaint--Validity--Application was filed in order to remove the defect, as date of gift was mentioned in statement of prosecution witness--Provision of Order 6, Rule 17, CPC are permissive in nature, same can be used in order to foster justice and not in justice--Allowing the application will be in justice with defendant, therefore, C.M. was not maintainable. [P. 105] A

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

----O. VI, R. 17--Permission to amend plaint--Oral gift had been claimed without mentioning any date of offer or gift--Maintainability of application--Validity--It is admitted position that claim of applicants was with regard to gift by grandfather in his life time in favour, who died even next day of alleged entry of gift in Roznamcha Waqiati and mutation of inheritance had also been mentioned, therefore, application was not sustainable the under law, same was dismissed. [P. 106] B

Gift--

----Claim of gift--Essential--For establishing claim of gift, plaintiff were required to prove entry of Rapt Roznamcha as well as mutation and events of gift i.e. offer, acceptance and delivery of possession under the gift. [P. 106] C

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

----O. VI, R. 17--Oral gift--Application was filed for entering date of gift in the plaint, which had been dismissed even the entry of date was not sufficient for pleading a case on basis of gift. [P. 107] D

Oral Gift--

----No identification of lumberdar or pattidar of alleged donor--Mutation of gift does not bear signatures of witnesses--Validity--No mention of lumberdar or pattidar and there is no signature of alleged donor upon such document--Assistant Commissioner had rightly refused to pass the mutation, as for passing any mutation except of inheritance--Attestation of mutation by lumbardar or pattidar was necessary but no such statement was available on record, therefore, mutation had been rightly refused. [P. 107] E

Muhammadan Law--

----Oral gift--Prove of--Offer, acceptance and delivery of possession is necessary--Plaintiff had failed to prove all ingredients of gift. [P. 107] F

West Pakistan Land Revenue Act, 1967 (XXV of 1967)--

----S. 42--Civil Procedure Code, (V of 1908), S. 96--Oral gift--Incorporation and attestation of mutation--Necessary--When alleged donor never appeared before revenue officer to confirm his previous event of gift of suit land there was no occasion with revenue officer to attest mutation of gift--No case for interference by High Court while exercising jurisdiction u/S. 96 of CP was made out--Appeal was dismissed. [P. 107] G & H

Mr. Muhammad Jaffar Javed Khan, Advocate for Appellant.

M/s. Mehmood Ashraf Khan and Ch. Abdul Ghani, Advocates for Respondents.

Date of hearing: 1.10.2013.

Judgment

Amin-ud-Din Khan, J.--Through this appeal appellants have challenged the judgment & decree dated 13.07.2007 whereby suit for declaration filed by the plaintiffs-appellants was dismissed.

1. Brief facts of the case are that plaintiffs-appellants on 19.10.2004 filed a suit for declaration that they be declared owner of suit land on the basis of gift by their grandfather Muhammad Riaz Khan and challenged the order of Assistant Commissioner-II dated 13.10.2004 whereby attestation of Mutation No. 2191 was refused. According to the facts mentioned in the plaint, their grandfather Muhammad Riaz Khan was the owner of the suit land measuring 416 kanals 13 marlas situated in Mauza Qadirabad, Tehsil & District Vehari, who gifted the same to them before the witnesses, which was accepted by the plaintiffs and possession was delivered and therefore they are owner of the suit property. It was further pleaded that Muhammad Riaz Khan got entered Rapt No. 43 on 1.1.2004 with regard to "Hiba" and Mutation No. 2191 was also entered and unfortunately said Muhammad Riaz Khan passed away due to heart-attack on 2.10.2004, therefore, Assistant Commissioner did not pass Mutation No. 2191, therefore, they filed the suit. Through amended plaint mutation of inheritance of Muhammad Riaz Khan Bearing No. 2195 attested on 27.7 2005 was also challenged. All the defendants except Defendant No. 2, filed contesting written statement and contested the suit. Defendant No. 2, who is father of the appellants, filed a consenting written statement. Learned trial Court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. Vide judgment & decree dated 13.07.2007 learned trial Court dismissed the suit. Hence, this appeal.

2. C.M. No. 1482/2009 has been filed by the appellants under Order VI Rule 17 of the, CPC for permission to amend the plaint so as to mention date of gift as 30.9.2004 in Paras Nos. 1 & 5 and other paragraphs of the plaint. Reply has been filed to this CM, wherein this CM has been vehemently opposed.

3. We have noticed that in the plaint there is claim of oral gift without any date mentioned in it. Now the plaintiffs want to amend the suit in order to mention the date of oral gift in the plaint.

4. Learned counsel for the applicants argues that by allowing this application, nature of the suit will not change and further that it will not be harmful for any of the parties and that the applicants will not pray for further permission to produce evidence after amendment if allowed by this Court.

5. On the other hand, learned counsel for the respondents have vehemently opposed this application by saying that as there was no specific date of gift mentioned in the plaint and now the plaintiffs have moved this application in order to cover up the defect, when date of gift was given by one of the plaintiffs i.e. Haider Ali who appeared as PW-4 and stated that his grandfather offered the gift of the properly on 30.9.2004, therefore, states that the application is liable to be dismissed.

6. We have considered the arguments of learned counsel for the parties. Oral gift has been claimed by the plaintiffs without mentioning any date of offer or the gift. The only pleading is with regard to getting the entry of "Roznamcha" on 1.10.2004. It seems that this application has been filed in order to remove the defect, as the date of gift was mentioned in the statement of PW-4. In this view of the matter, at this stage we are not convinced with the arguments of learned counsel for the applicants to exercise our discretion and jurisdiction in their favour. The provision of Order VI Rule 17 are permissive in nature, same can be used in order to foster justice and not the in-justice. At this stage allowing this application will be in-justice with the defendants, therefore, this CM is not maintainable, same is dismissed.

7. Through C.M. No. 1972-C-2011 it has been prayed that as Defendant No. 2 has admitted the suit, therefore, to his extent the suit be decreed.

8. Learned counsel for the applicant has reiterated the pleadings of this application with the prayer to accept the same and decree be pissed at least against Defendant No. 2 to his extent.

9. On the other hand, learned counsel for the respondents argues that application is absolutely not sustainable under the law as the claim of the plaintiffs is not divisible, if they succeed, they will succeed fully and if their claim is not accepted, the same will be dismissed totally and if Defendant No. 2, who is their father, wants to transfer his share received through inheritance from his father, he can transfer the same out of the Court also, therefore, this application is not sustainable.

10. We have considered the contentions raised by learned counsel for the parties. It is admitted position that claim of the plaintiffs-applicants is with regard to a gift of the land by their grandfather in his lifetime in their favour, who died even the next day of the alleged entry of gift in the "Roznamcha Waqiati" and mutation of inheritance has also been sanctioned, therefore, this application is not sustainable under the law, same is dismissed.

11. So far as claim of the plaintiffs in the main RFA that their grandfather who gifted the suit property to them got entered the "Roznamcha Waqiati" of Patwari on 1.10.2004 and the same was entered in the presence of the witnesses Javed Iqbal and Muhammad Yar and also the mutation was entered on the same date, is concerned, learned counsel states that the plaintiffs have proved their case through cogent and convincing evidence but learned trial Court has fell in error while dismissing the suit.

12. On the other hand, learned counsel for the respondents argues that the findings recorded by the learned trial Court are in accordance with the evidence available on the file and on the basis of forged and fictitious Rapt which was got entered with the connivance of Patwari and the witnesses, one of whom is father of the plaintiffs and other is father-in-law of one of the plaintiffs, filed the suit in hand, which has been rightly dismissed.

13. We have heard learned counsel for the parties and have gone through the record with their able assistance.

14. For establishing claim of gift the plaintiffs were required to prove entry of "Rapt Roznamcha" as well as mutation and the events of gift i.e. offer, acceptance and delivery of possession under the gift. Even it is not the case of the plaintiffs that before the entry of "Rapt Roznamcha events of gift i.e. offer, acceptance and delivery of possession were completed. When any event for which there is no document or record available, the plaintiff is required to plead the same with full detail along with the names of the witnesses before whom that event has taken place. No such pleading is available on the file.C.M.NO.1482-C/2009 was filed for entering date of gift in the plaint, which has been dismissed even the entry of date was not sufficient for pleading a case on the basis of gift. So far as "Rapt Roznamcha" is concerned, both the witnesses are interested, as the defendants have alleged that it is with the connivance of Patwari, who appeared as P W-1 and Muhammad Yar who is father-in-Law of one of the plaintiffs, appeared as PW-2 and PW-3 is real father of the plaintiffs and one of the plaintiffs appeared as PW-4. No independent witness has been produced to prove the gift. Even in the Rapt there is no identification of Lumberdar or Pattidar of the alleged donor. This "Rapt Roznamcha" contains the signatures of the witnesses but not of the alleged donor. Further even Exh.P2 which is entry of mutation of gift does not bear the signatures of the witnesses. There is no mention of the Lumberdar or Pattidar and also there is no signature of the alleged donor upon this document. Assistant Commissioner has rightly refused to pass the mutation, as for passing any mutation except of inheritance, the statement with regard to event mentioned in the mutation by the transferor as well as attestation of the same by the Lumberdar or Pattidar is necessary but no such statement is available on the record, therefore, mutation has been rightly refused.

15. In accordance with Para 149 of Muhammandan Law by D.F.Mulla, for proving a gift, offer, acceptance and delivery of possession is necessary. Plaintiffs failed to prove all the ingredients of gift, therefore, learned trial Court reached to a right conclusion while dismissing the suit.

16. For incorporation and attestation of mutation, observing of formalities mentioned in Section 42 of the Land Revenue Act, 1967 is necessary. None of the formalities has been proved by the plaintiffs when the alleged donor never appeared before the revenue officer to confirm his previous event of gift of the suit land in favour of the plaintiffs, there was no occasion with the revenue officer to attest the mutation of gift in favour of plaintiffs. In this view of the matter, we have seen that the findings recorded by the learned trial Court are in accordance with law.

17. For what has been discussed above, no case for interference by this Court while exercising jurisdiction under Section 96 of the, CPC has been made out, therefore, this appeal stands dismissed with costs throughout.

(R.A.) Appeal dismissed

PLJ 2014 Lahore 108 (DB) [Multan Bench Multan]

Present: Amin-ud-Din Khan and Abid Aziz Sheikh, JJ.

MUHAMMAD AZAM KHAN--Appellant

versus

ASKARI LEASING LIMITED through Branch Manager, Multan--Respondent

R.F.A. No. 171 of 2010, heard on 30.9.2013.

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

----O. XX, R. 17--Rendition of account--Suit for rendition of account was dismissed--Appellant leased vehicle on basis of vehicle lease agreement and payment was to be made in installment--Rights and obligation of the parties--Maintainability of suit--Validity--It was admitted position in instant suit that one sided payments were made towards lease rental--Suit for rendition of accounts was equitable remedy, which was available to plaintiff only if he was entitled to accounts and had not been given accounts--Such relief would not arise of mere contractual relationship or because accounts might have to be examined in a course of suit but in order to bring a suit for rendition of accounts--Question of determination--Whether suit for rendition of accounts was maintainable--If it was really a case of debtor and creditor or only a case of mutual obligation, which in ordinary way results in enforceable liabilities on each side--Where one party never had any demand against other could not fall with that purview--It was only plaintiff who had been making payment of amounts and could very well note or ascertain total amounts paid by them for which they were seeking rendition of account--Such liabilities did not exist when relationship is contractual between the parties, however, it exists when there is fiduciary relationship between the parties as in the case of partners of a firm guardian and ward, principle and agent--Relationship between parties was contractual in nature and not fiduciary, therefore, suit for rendition of accounts was not maintainable. [Pp. 110 & 111] A, B, C, D, E & F

PLD 1994 Kar. 343 & 1991 SCMR 2324, rel.

Mr. Muhammad Shehzad Aslam, Advocate for Appellant.

Respondent Proceeded against Ex-parte.

Date of hearing: 30.9.2013.

Judgment

Abid Aziz Sheikh, J.--This appeal has been filed u/S. 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 03.05.2010 passed by learned Judge Banking Court-I, Multan whereby suit for rendition of accounts filed by the appellant was dismissed. The appeal was admitted for regular hearing on 16.03.2011 and notice was issued to the respondent. As per office report, the notice was received by concerned officer namely Ismail at Askari Leasing Bank Ltd. Multan Cant, however, no one has entered appearance on behalf of respondent who is proceeded against ex-parte.

1. Briefly the facts in this case are that the appellant/plaintiff filed a suit for rendition of accounts against the respondent/defendant (leasing company) by stating that he obtained vehicle Honda Civic, Colour white, Model 2002, Registration No. VRG-09, on installments with down payment of Rs. 2,38,640/-. The loan amount was Rs. 11,93,200/- whereas the appellant paid Rs. 15,82,840/- till the time of filing of suit. He further claimed that the appellant was paying installments regularly but respondent/defendant was charging illegal mark up and penalties and also took possession of the leased vehicle from the appellant, hence suit for rendition of accounts was filed.

2. The respondent/defendant filed application for leave to defend the suit which was allowed and following issues were framed by learned Banking Court:--

3. Whether the suit is not maintainable under the law? OPD.

4. Whether the plaintiff is defaulter to the tune of Rs. 5,81,231/- as on 01.07.2006? OPD.

5. Whether the plaintiff is entitled to rendition of accounts, if so, what are the liabilities of the parties? Onus on Parties.

6. Relief?

After recording evidence and hearing learned counsel for the parties, the suit of the appellant was dismissed vide judgment and decree dated 03.05.2010.

1. The learned counsel for the appellant/plaintiff argued that appellant deposited 44 installments and therefore, the respondent/ defendant had no authority to repossess the vehicle in question. In response to question that how suit for rendition of accounts was maintainable, it is argued that the appellant was not a defaulter as is evident from the record, therefore, the suit for rendition of accounts was maintainable against the respondent/defendant (leasing company). Adds that the judgment and decree is not sustainable under the law.

2. We have heard the learned counsel for the appellant/plaintiff and perused the record.

3. At the first instance we will dilate upon Issues No. 1 and 3 regarding maintainability of the suit and entitlement of appellant for rendition of accounts. It is admitted position that the appellant leased a vehicle from the respondent/defendant (leasing company) on the basis of Vehicle Lease Agreement (Ex.D/3) and the payment was to be made in 60 installments as per Repayment Schedule (Ex.D/4). The rights and obligations of the parties were governed under the aforesaid vehicle lease agreement. We have gone through the vehicle lease agreement (Ex.D-3) and could not find any clause, which require the respondent/defendant to render any account to the appellant/plaintiff, rather in Clause 7.1 of the vehicle lease agreement, it is specifically mentioned that respondent/defendant shall not be accountable for any liability. Further, the detail of payable amount is already given in the schedule Ex.D-4 with the vehicle lease agreement Ex.D-3 and as per plaint, the appellant is also aware of the amounts paid by him to the respondent. It is admitted position in the present suit that one sided payments are made by the appellant/plaintiff to the respondent/defendant, towards the lease rental. A suit for rendition of accounts is an equitable remedy, which is available to the plaintiff only if he is entitled to accounts and has not been given accounts. From this, it follows that such relief would not arise out of mere contractual relationship or because accounts may have to be examined in the course of a suit but in order to bring a suit for rendition of accounts, one has to see that there had been an open current and mutual account. To determine whether suit for rendition of accounts is maintainable, one has to see if it is really a case of debtor and creditor or only a case of mutual obligation, which in the ordinary way results in enforceable liabilities on each side. In a case of accounts where one party never had any demand against the other cannot fall within this purview. For rendition of accounts there ought to be debit and credit on both sides.

4. In the present case, admittedly, it is only the plaintiff who had been making payment of the amounts and could very well note or ascertain the total amounts paid by them for which they are seeking the rendition of account. For the purpose of maintainability of the suit for rendition of accounts, liability of the other party to render accounts is basic foundation. Such a liability does not exist when the relationship is contractual between the parties, however, it exists when there is fiduciary relationship between the parties as in the case of partners of a firm, guardian and ward, principle and agent, trustee and beneficiary of a trust. In this regard reliance is placed on the law laid down by the August Supreme Court in case of Messrs Friend Engineering Corporation, the Mall Lahore Vs. Government of Punjab and 4 others (1991 SCMR 2324) wherein it was held as under:--

"It is to be remembered that liability to render accounts is the foundation for maintainability of a suit for rendition of accounts. Such a liability exists when there is fiduciary relationship between the parties as in the case of partners of a firm, guardian and ward, principal and agent, trustee and beneficiary of the trust. These instances are only enumerative and under Order XX, Rule 16, CPC, the Court is empowered to pass a preliminary decree where it feels necessary that to ascertain the amount due to one party from the other side, the accounts should be taken. But in the instant case, the relationship between the parties is undoubtedly contractual. In such a case, the respondents are not under any obligation to render accounts to the appellant. The work done, the material supplied to the department and the payments received form them by the appellant were within his knowledge. It was, therefore, for him to have ascertained the amount due to him and filed a money suit for recovery thereof".

In this context, reliance is also placed on Pakistan International Airlines Corporation Vs. Karachi Municipal Corporation through Chairman/ Administrator, Karachi and another (PLD 1994 Karachi 343).

1. In view of above discussion, we are of the opinion that as the relationship between the appellant and respondent/defendant was contractual in nature and not fiduciary, therefore, the suit for rendition of accounts filed by appellant was not maintainable.

2. Since the Issues No. 1 and 3 have been decided against the appellant/plaintiff and suit for rendition of accounts is not found to be maintainable under the law, we do not feel necessity to discuss and re-evaluate the findings of learned Banking Court on the remaining issues.

3. For what has been discussed above, the suit filed by the appellant/plaintiff for rendition of accounts was not maintainable and therefore, the impugned judgment and decree dated 03.05.2010 does not warrant interference, hence this appeal is dismissed with no order as to costs.

4. Requisitioned record be remitted back to the concerned Court forthwith.

(R.A.) Appeal dismissed

PLJ 2014 Lahore 112 (DB) [Rawalpindi Bench Rawalpindi]

Present: Kh. Imtiaz Ahmad and Shezada Mazhar, JJ.

ZAFAR MAHMOOD MUGHAL, ADVOCATE--Appellant

versus

SAJJAD AKBAR ABBASI and 3 others--Respondents

Intra Court Appeal No. 112 of 2013 in Writ Petition No. 3062 of 2013, decided on 2.12.2013.

Legal Practitioners and Bar Councils Act, 1973--

----Ss. 5(c)(a) & 13(2)--Punjab Legal Practitioners and Bar Councils Rules, 1974, Rr. 3(1) & 84(a)--Constitution of Pakistan, 1973--Art. 199--Law Reforms Ordinance, 1972, S. 3(2)--Intra Court Appeal--Ceases to be member of Pb.B.C.--Disqualification to remove from roll of advocate--Order to hold an office of profit--Appointment as Deputy Attorney General--Question of--Maintainability of I.C.A.--If original statute provides an appeal then ICA was not maintainable--Validity--In instant case appellant was holding office of Deputy Attorney General and he was being paid number of fringe benefits including retainship chauffeur driven car with petrol and other benefits, therefore, he was in service of Pakistan--Order in writ petition was an order of Chairman of Pb. B.C. and same cannot be termed as an order of Pb. B.C.--Appellant had challenged maintainability of writ petition on ground that alternate remedy by way of appeal u/S. 13(2) of Act, 1973--Being Chairman of Pb.B.C. Advocate General was to ensure compliance of provisions of Act & Rules--Order passed by A.G. Pb. being Chairman of Pb. B.C. was subject to appeal u/S. 13(2) of Act, 1973--When order/proceedings subject matter of writ petition had remedy of appeal/review revision then u/S. 3(2) of Law Reforms Ordinance, intra court appeal is not maintainable if writ petition arises from proceedings which provides at least one appeal, revision or review--If law provides an appeal, revision or review then proviso to S. 3(2) of Ordinance comes into play and Intra Court Appeal becomes not maintainable--Respondent’s writ petition arose out of order of Chairman Pb.B.C. who is required to ensure compliance of Act and Rules and Act, 1973 provide remedy of appeal u/S. 13(2) against the order--Proceeding, out of which petition arose, provides for filing appeal, therefore, appeal was hit by proviso to S. 3 (2) of Law Reforms Ordinance, 1972--I.C.A was dismissed. [Pp. 115, 116 & 117] A, B, C, D, E, F, G & H

2004 CLC 1719, PLD 1984 SC 344, PLD 1985 SC 107, PLD 2003 SC 325, PLD 1994 Lah. 574, PLD 1994 SC 60, ref.

Mr. Muhammad Munir Paracha, Advocate for Appellant.

Mr. Sajjad Akbar Abbasi, Mr. Mujeeb-ur-Rehman Kiyani, Advocates & Mr. Nadeem Akhtar Bhatti, AAG for Respondents.

Date of hearing: 20.11.2013.

Judgment

Shezada Mazhar, J.--This Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 is directed against the judgment dated 04.11.2013 passed by the learned single judge in Chamber in W.P. No. 3062 of 2013, whereby the writ petition filed by Respondent No. 1 was accepted and it was held that appellant ceases to be a Member of Punjab Bar Council under Section 5C(a) of The Legal Practitioners and Bar Councils Act, 1973. (LP&BCA, 1973).

1. Learned counsel for the appellant submitted that due to the changed circumstance this appeal has to be accepted as the appellant has already been de-notified from the office of Deputy Attorney General vide Notification dated 18.11.2013. Further submits that in view of the law laid down by the superior Courts this Court has the jurisdiction to consider the changed circumstance and in this regard relied upon 2003 CLC 1730.

2. On merits of the appeal learned counsel submits that when Sections 5-A, 5-B and 5-C are read jointly it reveals that disqualification in Section 5-C is related to the removal from the roll of Advocate. If due to holding of an office an advocate is removed from the roll of advocates then and only then Section 5-C(a) will be applicable. Further submits that the post of Deputy Attorney General is not an office of profit in the service of Pakistan, therefore, appellant would not cease to be the member of the Punjab Bar Council on the ground that the appellant having been appointed as a Deputy Attorney General. It is also submitted that the appellant is not being paid any salary but retainership which is different from salary.

3. On maintainability of the present ICA, learned counsel submits that the order was passed by the Chairman of the Punjab Bar Council in the capacity as Chairman and the same cannot be termed as an order passed by the Punjab Bar Council. Appeal as mentioned under Section 13(2) of the LP&BCA, 1973 is available against order of the Punjab Bar Council and not against the order of Chairman. Further submits that no powers of Punjab Bar Council have been delegated to the Chairman. Under Section 31 only Enrolment Committee has been constituted to whom certain powers have been delegated. Therefore no appeal lies against the order of the Chairman and therefore the instant ICA is maintainable.

4. On the other hand, Respondent No. 1 seriously contested the maintainability of the present ICA and, submits that before the learned Single Judge of this Court not only by the counsel for the appellant but also by the learned AAG contended that an order passed by the Punjab Bar Council includes an order passed by its Chairman, the Provincial Bar Council consists of the Advocate General and its elected members under Section 5 of the LP&BCA, 1973 and as the Respondent No. 1/petitioner has not availed the said remedy, therefore, writ petition is not maintainable. Now they cannot take a stand different than the one that they have been agitating before the learned Single Judge. Further submits that Section 3 (2) of the Law Reforms Act, 1972 clearly states that if the original Statute provides an appeal then Intra Court Appeal is not maintainable. In this regard reliance is placed on:--

Mst. Karim Bibi and others Vs. Hussain Bakhsh and another Vs. Hussain Bakhsh and another (PLD 1984 SC 344), Muhammad Abdullah Vs. Deputy Settlement Commissioner, Centre-I, Lahore. (PLD 1985 SC 107), Haji Khuda Bakhsh & sons through Muhammad Rafique and 39 others Vs. Ch. Muhammad Sharif and 3 others (2004 CLC 1719), Agha Muzamil Khan through General Attorney and 8 others Vs. Consolidation Officer, Lahore and 62 others (PLD 2005 Lah. 422), Muhammad Aslam Sukhera and others Vs. Collector Land Acquisition, Lahore Improvement Trust, Lahore and another (PLD 2005 SC 45), Yusuf Ali Khan, Bar-at-Law Vs. Muhammad Javed Iqbal Cheema, ESQ. Additional District Judge, Lyallpur and 6 others (PLD 1975 Lah 1339), and

Basai Vs. Qaim Ali and 8 others (PLD 2003 SC 325).

Further submits that appellant becomes disqualified from the day when his original notification for appointment as Deputy Attorney General was issued by the President of Pakistan i.e. 31.07.2012. It was duty of the Chairman to implement the provisions of the Act and Rules under Section 6(9) of LP& BCA, 1973 read with Rule 84(a) of Pakistan Legal Practitioners and Bar Councils Rules, 1976 and Rule 3.1 of the Punjab Legal Practitioners and Bar Councils Rules, 1974. Further submits that in order to hold an office of profit only two things are required:

(i) that there is an office, (ii) the office carries with it some kind of remuneration.

In the present case appellant is holding office of Deputy Attorney General and he is being paid number of fringe benefits including retainership chauffeur driven car with twenty liters of petrol and 125 k.g. CNG alongwith other benefits therefore he is in service of Pakistan. In this regard learned counsel has relied upon:

Muhammad Akbar Cheema, Advocate Vs. Chairman Punjab Bar Council and 72 others (PLD 1994 Lah 574), Syeda Abida Hussain Vs. Tribunal for NA. 69, Jhang-IV and 2 others (PLD 1994 SC 60).

Tariq Muhammad Iqbal, Advocate Supreme Court Sahiwal, etc. (PLJ 2002 Tr.C (ACC)1), Javed Ahmed Beitu, President Bar Association, Burewala Vs. Sh. Muhammad Pervaiz etc. (PLJ 2000 Tr.C. (ACC) 737)

Muhammad Farooq Warind vs. Pakistan Bar Council through Vice-Chairman and 5 others (PLD 2009 Lah. 572), Salahuddin and 2 others vs. Frontier Sugar Mills & Distillery Ltd. Tokht Bhai and 10 others (PLD 1975 SC 244), M.U.A Khan vs. Rana M. Sultan and another (PLD 1974 SC 228), Muhammad Khursheed Khan vs. Returning Officer and 4 others (1998 SCMR 425), and

Shahid Nabi Malik and another vs. Chief Election Commissioner, Islamabad and 7 others (PLD 1997 Supreme Court 32).

Further submits that in view of the above submissions, the order passed by the learned Single Judge in chamber is liable to be upheld and the ICA is liable to be dismissed with costs.

1. We have heard the arguments of both the parties and have also gone through the case law relied upon by the parties.

2. First of all we would like to deal with the objection raised by the learned counsel for the respondent regarding the maintainability of the present ICA.

3. Although before us appellant has argued that the order impugned in the writ petition was an order of the Chairman of the Punjab Bar Council and the same cannot be termed as an order of the Punjab Bar Council. According to the arguments before us, Punjab Bar Council consists of number of members as mentioned in Section 5 of the LP&BCA, 1973 and Chairman is one of the member and as such the Chairman cannot be termed as Punjab Bar Council. However, perusal of the impugned order passed by the learned Single Judge in Chamber reveals that appellant challenged the maintainability of the writ petition on the ground that alternate remedy by way of appeal under Section 13(2) of LP&BCA, 1973 has not been availed.

In the case in hand the application filed by Respondent No. 1 was before the "the Chairman Punjab Bar Council/Advocate General Punjab/Returning Officer for the Election of Punjab Bar Council." All the three nomenclatures apply to one person under the LP&BCA, 1973. Being Chairman of the Punjab Bar Council Advocate General of Punjab was to ensure compliance of the provisions of the Act and the Rules which states as under:

Section 6 (9) of the LP&BCA, 1973 states

The Chairman and Vice-Chairman shall have such powers and functions as may be prescribed. "

Rules 84 (a) of the Pakistan Legal Practitioner and Bar Councils Rules, 1976 states.

Power and duties of Chairman:

(a) The Chairman of a Bar Council shall be responsible for ensuring due compliance with the provisions of the Act and the Rules.

And Rules 3.1 of the Punjab Legal Practitioners and Bar Councils Rules, 1974 states:

The Chairman shall be responsible for ensuring due compliance wish the provisions of the Act and the Rules. He shall exercise the powers and perform the functions assigned to him by the Act and the Rules.

The above provisions clearly established that the order passed by the Advocate General Punjab being Chairman of the Punjab Bar Council was subject to appeal under Section 13(2) of the LP &BCA, 1973.

When the order/proceedings subject matter of the writ petition has a remedy of appeal/revision/review then under Section 3(2) of the Law Reforms Ordinance, 1972, which states as under:--

An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under (clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan) not being an Order made under sub-paragraph (i) of paragraph (b) of that clause:

Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article (199) arises out of any proceedings in which the law applicable provided for at least one appeal [or one revision or one review] to any Court, Tribunal or authority against the original order.

Intra Court appeal is not maintainable if the writ petition arises from the proceedings which provides at least one appeal, revision or review under the relevant law. It is immaterial whether the said appeal, revision or review has been actually filed or not. If the law provides an appeal, revision or review then proviso to Section 3(2) of the Law Reforms Ordinance, 1972 comes into play and Intra Court Appeal becomes not maintainable. Reliance is placed on "Haji Khuda Bakhsh & sons through Muhammad Rafique and 39 others Vs. Ch. Muhammad Sharif and 3 others", (2004 CLC 1719), wherein this Court has held that "The proviso to Section 3 of Law Reforms Ordinance, 1972 prohibits an Intra Court Appeal where a Constitutional petition in which the impugned order was made arose out of any proceedings in which the law applicable provided for at least one appeal or revision or review to any Court, Tribunal or Authority against the original order".

Similarly; in "Muhammad Aslam Sukhera and others Vs. Collector Land Acquisition, Lahore, Improvement Trust, Lahore and another" (PLD 2005 Supreme Court 45), the Hon'ble Supreme Court held that "The object of Proviso to sub-section (2) of Section 3 of the Ordinance, 1972, seems to be to bar the remedy of Intra-Court Appeal in those cases in which the relevant law provides the remedies of appeal, revision or review".

Undoubtedly, in our view, Respondent No. 1's writ petition arose out of the order of the Chairman of the Punjab Bar Council, who is required to ensure compliance of the Act and the Rules and the said Act provides the remedy of appeal under Section 13(2) against the order. In view whereof, the proceeding, out of which the Constitutional petition arose, provides for filing appeals, therefore, the present appeal is hit by proviso to Section 3 (2) of the Law Reforms Ordinance, 1972.

1. The appeal is incompetent and not maintainable in view of Law laid down in above mentioned judgments as well as in "Mst. Karim Bibi and others Vs. Hussain Bakhsh and another" (PLD 1984 Supreme Court 344), "Muhammad Abdullah Vs. Deputy Settlement Commissioner, Centre-I, Lahore" (PLD 1985 Supreme Court 107), and "Basit Vs. Qaim Ali and 8 others" (PLD 2003 Supreme Court 325).

2. As the present Intra Court appeal is not maintainable therefore we restrained ourselves to comment upon the merits of the appeal.

3. This intra Court appeal is dismissed being not maintainable.

(R.A.) I.C.A. dismissed

PLJ 2014 Lahore 118

Present: Shahid Waheed, J.

MUHAMMAD SHABIR SALFI--Appellant

versus

ALTAF AHMAD--Respondent

R.F.A. No. 472 of 2011, heard on 20.12.2013.

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

----O. XXXVII, Rr. 1 & 2--Suit for recovery on basis of cheque, decreed--Insufficient Court fee--Application sought extension in time to furnish surety bond was rejected--After removing objection of Court fee, file was resubmitted--Delayed resubmission of file--Question of--Whether due to default in furnishing surety bond, trial Court could decree the suit--Validity--Omission of time period in leave granting order could neither bring an occasion of default in fulfilling the condition of furnishing surety bond nor give rise to a cause of action for filing an application seeking extension in time to furnish surety bond--Filing of application, on behalf of appellant, for extension in time to furnish surety bond was uncalled for and the order dismissing the application was unjustified--Trial Court fell into error while recalling the leave granting order and decreeing the suit--Appeal was allowed. [P. 121] A

Ch. Muhammad Fakhir Razzaq, Advocate for Appellant.

Mr. Alamgir, Advocate for Respondent.

Date of hearing: 20.12.2013.

Judgment

Challenge in this appeal is to the judgment and decree dated 28.9.2010 passed by the learned Addl. District Judge, Pindi Bhattian whereby the suit of the respondent for recovery of Rs. 1,500,000/- was decreed.

1. The respondent, Altaf Ahmad, on the basis of Cheque No. 3735643 dated 11.10.2007 instituted a suit under Order XXXVII Rules 1 and 2, CPC against the appellant, Muhammad Shabir Salfi, for recovery of Rs. 1,500,000/-. In response to summons the appellant entered appearance before the learned trial Court and filed an application for leave to defend the suit. The respondent contested the application by filing reply. The learned trial Court vide order dated 21.7.2010 accepted the above said application and permitted the appellant to appear and defend the suit subject to furnishing of surety bond equivalent to the suit amount. Thereafter, on 4.8.2010, the appellant filed an application before the learned trial Court seeking extension in time to furnish surety bond. Contesting reply to this application was filed by the respondent. The learned trial Court vide order dated 28.9.2010 rejected the application; and, through a separate judgment of even date decreed the suit.

2. The appellant feeling aggrieved by the judgment and decree dated 28.9.2010 passed by the learned Addl. District Judge, Pindi Bhattian, District Hafizabad, filed the instant appeal within the prescribed period of limitation. The office of this Court vide Diary No. 93212 dated 4.11.2010 returned the file to the appellant with certain objections mentioned in the objection-sheet and directed him to resubmit the same within a period of three days. One of the objections was that the Court fee was insufficient. The appellant on 13.6.2011 after removing the objections including the objection of Court fee resubmitted the file; and, also filed an application (C.M. No. 1-C/2011) under Section 5 of the Limitation Act for condonation of delay. In view of delayed resubmission of file, at the outset of hearing, learned counsel for the respondent by relying upon the cases of Ghulam Hussain and three others Vs. Bahadar (PLD 1954 Lah. 361). Muhammad Ahmad Vs. Muhammad Ali and others (PLD 1996 Lah. 158), and Naheed Ahmad Vs. Asif Nawaz, and three others (PLD 1996 Lah. 702), contends that the instant appeal is barred by time and, therefore, be dismissed. In reply to the above said preliminary objection the learned counsel for the appellant submits that the appeal was filed within time; that although the appellant due to his poverty could not supply the requisite Court fee within the time granted by the office of this Court yet the same was supplied and accepted by the office without any objection and thus at this stage the appeal cannot be dismissed on the ground of limitation. I have considered the arguments canvassed by the learned counsel for the parties. The precedents cited by the learned counsel for respondent do not apply to the facts of the instant case. However, in this regard guidance may be had from the judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Mst. Sabran Mai Vs. Ahmad Khan and another (2000 SCMR 847) wherein it has been observed that "once a suit, appeal or revision has been presented before the authorized officer of the Court within prescribed period of limitation, it cannot be treated time barred for the reason that the office has noted defects in the proceedings which have not been removed by the concerned party or his Advocate, and in such like situation the presiding officer of the Court at the best can consider the maintainability of proceedings in view of the provisions of Order VII, Rule 11, CPC or identical provisions available in the Code of Civil Procedure or the law under which the proceeding were instituted. It is also important to note that parties/advocates are also not absolved from their duty to remove the objection within the stipulated period prescribed by the concerned authorized officer subject to condition that specific notice has been served upon the party or Advocate to do the needful. Even if after notice the defect is not removed the case shall be listed before the presiding officer who may in his discretion allow time to comply with objection of office.'' Thus, the question that needs determination in this case is as to whether this Court at this stage can condone the delay in complying with the objections of office or accept the Court fee which was deposited after eight months from the date of objection raised by the office? The answer to this question is in the affirmative. The case in hand shows that the office raised certain objections on the memorandum of appeal and returned the case to the appellant. The appellant was required to remove the objections within a period of three days but he took eight months to do the same. The office after eight months received the file and the Court fee without any objection; assigned number; registered the same as regular first appeal; and, fixed the case on judicial side. The memorandum of appeal if unstamped or insufficiently stamped falls to be dealt with under Section 149, CPC which empowers the Court in its discretion at any stage to allow the appellant to supply the deficiency in Court fee and upon such payment the memorandum of appeal shall have the same force and effect as if such fee had been paid in the first instance. This view finds support from the judgments of the Hon'ble Supreme Court rendered in the cases of Yaqoob Khan v. Rasool Khan and others (1981 SCMR 155) and Siddique Khan v. Abdul Shakoor Khan (PLD 1984 S.C 289). The principle governing exercise of power under Section 149, CPC is that the discretion of the Court is not to be exercised arbitrarily or capriciously but judiciously and with utmost care. Normally, the discretion may be exercised in favour of the litigant except in the case of contumacy or positive mala fide or negligence. In the case in hand the appellant in C.M.No. 1-C/2011 has urged that delay in filing the Court fee was neither deliberate nor intentional rather this was due to poor financial position; and, that he after getting loan had affixed the Court fee. This assertion is supported by an affidavit. The above stated assertions have not been refuted by a counter-affidavit. Thus, there is no reason to suppose that the appellant was guilty of contumacy or he had deliberately avoided to pay proper Court-fee; and, being guided by the order of the Hon'ble Supreme Court made in the case of Alauddin (deceased) represented by Mst. Kalsoom Begum and others v Abdul Raheem and 3 others (1988 SCMR 1688) I hereby condone the delay in complying with objections of the office; accept Court fee which was deposited by the appellant; and, accept CM. No. 1-C/2011 so as to make sure as to whether the judgment and decree of the learned trial Court calls for any interference.

3. On merits of the case, the learned counsel for the appellant submits that the judgment and decree of the learned Court below suffer from misapplication of the provisions of law; that the learned trial Court erroneously dismissed the appellant's application for extension in time to furnish surety bond; and, that notwithstanding the failure on the part of the defendant/appellant to comply with the condition of the leave granting order the learned trial Court was required to apply its mind to the facts and the documents before it but this exercise was not done by the learned trial Court and thus this irregularity rendered the impugned judgment and decree void. Conversely, the learned counsel for the respondent has vehemently opposed this appeal and submitted that due to failure of the appellant to comply with the condition of leave granting order the learned trial Court had no option but to decree the suit. I have examined the contentions raised by the learned counsel for the parties. The learned trial Court vide order dated 21.7.2010 granted leave to the appellant subject to furnishing of surety bond equivalent to the suit amount. The appellant could not furnish the surety bond before the next date of hearing and for this reason the learned trial Court decreed the suit. The appellant also filed an application seeking extension in time to furnish surety bond. This application was also dismissed by the learned trial Court vide order dated 28.9.2010. The question involved in this case is as to whether due to default in furnishing surety bond, the learned trial Court could decree the suit? This question may be answered by examining the order dated 21.7.2010 whereby leave was granted to the appellant in following terms:

"Therefore, I accept the application and permit the petitioner to appear and defend the suit as defendant subject to furnishing surety bond for an amount of equal to suit amount i.e. Rs. 15,00,000/-, Now to come up for further proceedings on 3.8.2010."

The perusal of the above said order shows that the learned trial Court while granting leave to the appellant did not specify any time to furnish the surety bond. The learned trial Court was required to specify the time period for furnishing the surety bond. The omission of time period in the leave granting order could neither bring an occasion of default in fulfilling the condition of furnishing surety bond nor give rise to a cause of action for filing an application seeking extension in time to furnish surety bond. Thus, the filing of application, on behalf of the appellant, for extension in time to furnish surety bond was uncalled for; and, similarly the order dated 28.9.2010 dismissing the said application was unjustified. In view of above, I am of the opinion that the learned trial Court fell into error while recalling the leave granting order; and, decreeing the suit of the respondent.

1. In view of the foregoing position, I would allow this appeal and set aside the impugned judgment and decree dated 28.9.2010, remit the case to the learned trial Court for adjudication afresh in accordance with law. The order dated 28.9.2010 whereby appellant's application for extension in time for furnishing surety bond was rejected is also set aside. The acceptance of appeal is subject to the condition that the appellant shall furnish surety bond as directed by the learned trial Court vide order dated 21.7.2010 within one month from today. There will, however, be no order as to costs. The parties shall appear before the learned trial Court on 16.01.2014.

(R.A.) Appeal allowed

PLJ 2014 Lahore 122 [Multan Bench Multan]

Present: Atir Mahmood, J.

ALLAH DITTA etc.--Appellants

versus

Mst. MAJIDA BEGUM, etc.--Respondents

F.A.O. No. 121 of 2008, decided on 5.11.2013.

Restoration of Appeal--

----Condonation of delay--Restoration of appeal was badly hit by limitation of time--No application for condonation of delay was moved, delay could not be condoned--Question of--Whether application for restoration of appeal before lower appellate Court was within time--Appellants never bothered to contact their counsel during long span of about two years--Validity--Knowledge of counsel is knowledge of appellants and if they had not bothered to contact their counsel regarding disposal of their appeal no concession can be extended to such an indolent litigant--The time limit for filing application for restoration of appeal was 30 days from date of dismissal of appeal but appellants had not bothered to file any application for condonation of delay and lower appellate Court after hearing the parties had rightly appreciated the matter and there is nothing wrong in the order which could be interfered by High Court--Restoration of appeal was barred by time--Appeal was dismissed. [Pp. 125] A & B

Ch. Abdul Ghani, Advocate for Appellants.

Malik Sharif Ahmed, Advocate for Respondents No. 1 to 18.

Date of hearing: 5.11.2013.

Judgment

Through this appeal, appellants Allah Ditta etc. have assailed order dated 26.01.2006 passed by learned Additional District Judge, Vehari whereby application for restoration of appellant's appeal, dismissed in default vide order dated 10.10.2003, was dismissed.

1. Brief facts of the case are that Respondents No. 1 to 18 Mst. Majida Begum etc. (the respondents) filed a suit for specific performance of an agreement to sell in respect of land measuring 99-kanals and 18-marla situated in Chak No. 126/WB Tehsil Mailsi, District Vehari against the appellants as well as Respondents No. 19 to 23. The suit was decreed by learned Civil Judge 1st Class, Vehari vide judgment and decree dated 14.11.1993. Feeling aggrieved, the appellants challenged the judgment and decree dated 14.11.1993 before this Court in R.F.A. No. 81/1993. In the meanwhile, the respondents dispossessed the appellants from the suit property. It has been contended in the appeal that since the appellants had no source of income at Chak No. 126/WB, Tehsil Mailsi, District Vehari, they went to Rawalpindi. On 17.02.2005, the appellants came to know through their counsel that the appeal vide order dated 17.04.2003 passed by this Court was transmitted to District Judge, Vehari who entrusted it to learned Additional District Judge, Vehari on 30.04.2003 where the same was dismissed in default on 10.10.2003. The appellants filed an application for restoration of the appeal on 21.02.2005 giving details of their inability to pursue the matter. Respondents No. 1 to 18 contested the application by filing written reply. After hearing both sides, learned Additional District Judge, Vehari dismissed the application of the appellants vide order dated 26.01.2006 deeming it time barred. During the pendency of the appeal, Appellants No. 2 & 3 died whose legal heirs were not impleaded, therefore, the same have been arrayed as proforma Respondents No. 19 to 23. The order dated 26.01.2006 passed by learned Additional District Judge, Vehari has been assailed in this FAO.

2. Learned counsel for the appellants argues that the learned lower appellate Court while dismissing the appeal of the appellants vide order dated 10.10.2003 has travelled beyond its jurisdiction as it was reported to learned lower appellate Court that the appellants were not residing at the given address rather they had shifted to somewhere else; that it was incumbent upon the lower appellate Court to serve the appellants through their counsel rather than to summon the process server for his statement; that the appellants were summoned firstly vide order dated 03.07.2003 but the summons were not issued whereafter the appellants were summoned vide order dated 18.07.2003; that the appellants filed application for restoration of the appeal as soon as they came to know about dismissal of the same in default giving reasons in detail for their non-appearance which were not taken into consideration by the learned lower appellate Court; that since Article 181 of the Limitation Act was attracted in the circumstances of the case, there was no need to file application for condonation of delay especially when the delay was fully explained in application for restoration of the appeal; that the learned lower Court has failed to apply its judicious mind and the application of the appellants has been dismissed whimsically; that settled principle of law that technicalities should not come in the way of justice has altogether been ignored; that valuable rights of the appellants are involved in the case, therefore, this FAO be allowed, the impugned order be set aside and the appeal be restored by allowing application of the appellants for restoration of the same.

3. On the other hand, learned counsel for the respondents has vehemently opposed this appeal and fully supported the impugned order. His main stress is on the point that the application filed by the appellants for restoration of the appeal is badly hit by limitation of time, therefore, the same was rightly dismissed. He has also argued that the appellants have failed to show sufficient cause for condonation of delay. He also contends that no application for condonation of delay was moved by the appellants, therefore, the delay could not be condoned. He asserts that this appeal is without any merit, as such, the same be dismissed.

4. I have heard the arguments put forth by learned counsel for the parties and also perused the record with their able assistance.

5. The point for consideration before this Court is as to whether the application for restoration of appeal filed by the appellants before the lower appellate Court was within time. There is no denial to the fact that' initially the appeal was filed before this Court which was subsequently sent to the lower appellate Court on account of pecuniary jurisdiction on 28.04.2013 and then it was entrusted to the Court of Additional District Judge, Vehari vide order dated 30.04.2003. There is also no denial to the fact that the appellants were duly represented by their counsel namely Rana Muhammad Luqman, who was well aware about the proceedings. In order to reach just conclusion the contents of the application for restoration of appeal have been minutely perused. The Paragraph No. 5 of the application for restoration of appeal is very relevant which reads as under:

1. From the bare reading of this paragraph it is evident that the counsel for the appellants was well aware about the proceedings and as on 17.02.2005 when the appellants contacted their counsel they immediately came to know that the case was transferred in the year 2003 before District Judge, Vehari, astonishingly the appellants never bothered to contact their counsel during a long span of about two years. In my opinion, knowledge of the counsel for the appellants is knowledge of the appellants and if they have not bothered to contact their counsel regarding the disposal of their appeal no concession can be extended to such an indolent litigant. Mere contention of learned counsel for the appellants that since the appellants have abandoned their residence and they were not aware about the pendency of appeal before the District Judge is not acceptable as it was incumbent upon the appellants to furnish their fresh address in the Court. The Rule 24 of Order VII, CPC is reproduced for ready reference:

"Change of address.--A party who desires to change the address for service given by it as aforesaid shall file a verified petition, and the Court may direct the amendment of the record accordingly. Notice of such petition shall be given to such other parties to the suit as the Court may deem it necessary to inform, and may be either served upon the pleaders for such parties or be sent to them by registered post, as the Court thinks fit."

and since the appeal is the continuation of the proceedings the same rule applies in the present case. The time limit for filing the application for restoration of appeal is 30 days from the date of dismissal of appeal but the appellants have not bothered to file any application for condonation of delay and the lower appellate Court after hearing the parties has rightly appreciated the crux of the matter and there is nothing wrong in the impugned order which could be interfered by this Court. The application for restoration of appeal was barred by time and was rightly dismissed by the lower appellate Court.

1. Resultantly, this appeal being devoid of any merits, is dismissed.

(R.A.) Appeal dismissed

PLJ 2014 Lahore 126 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

Syed RIAZ-UL-HASSAN--Appellant

versus

MUHAMMAD SALEEM, PROPRIETOR ADNAN CORPORATION etc.--Respondents

R.F.A. No. 182 of 2004, decided on 10.9.2013.

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

----O. XXX, R. 10 & O. XXXVII, R. 2--Suit for recovery--Cheque was dishonoured that signature of appellant did not match--Original plaintiff could not be substituted by new one and the act of trial Court does not commensurate--Bearer cheque in name of corporation and not in name of plaintiff--Prime duty of plaintiff to establish that cheque was issued for fulfillment of any obligation as issuance of cheque was denied--Validity--Signatures were different from those available with bank, then burden to prove execution of cheque in favour of plaintiff and any consideration for issuance of cheque heavily lies with plaintiff which onus could not be discharged by plaintiff and execution of cheque could not be proved by plaintiff beyond reasonable doubt, when there is no allegation in plaint that appellant had put his false signatures on cheque knowingly just to deceive plaintiff and that he is entitled to decree as prayed for--As cheque was not issued in name of plaintiff and admittedly, it was a bearer cheque issued in name of corporation, therefore, suit was not maintainable. [Pp. 131 & 132] A, B & C

Limitation Act, 1908 (10 of 1908)--

----S. 22--Limitation for filing of suit is to be reckoned from date when plaintiff was substituted or added--No specific evidence was produced--Validity--Question of limitation is a mixed question of law and fact, therefore, High Court is under legal obligation to determine maintainability of the suit whenever any such objection is raised--Limitation for filing of the suit for recovery of amount on basis of cheque was three years commencing from date of refusal of its encashment of bank--Suit in view of Section 22 of Limitation Act, was barred by time by one year 6 months and 22 days and was liable to be dismissed. [P. 132] C & D

Mr. Muhammad Aslam Khan Dhukkar, Advocate for Appellant.

Mr. Zafar Iqbal Awan, Advocate for Respondents.

Date of hearing: 10.9.2013

Judgment

Through this Regular First Appeal, the appellant Syed Riaz-ul-Hassan has called in question the legality of judgment and decree dated 02.10.2004 passed by learned Additional District Judge, Sadiqabad whereby the suit of the respondent-plaintiff under Order XXXVII, Rule 2, C.P.C. for recovery of Rs. 1,61,850/- was decreed with costs.

1. Brief facts of the case are that respondent Muhammad Saleem, Proprietor Adnan Corporation filed a suit under Order XXXVII, Rule 2, C.P.C. for recovery of an amount of Rs. 1,61,850/- from the appellant alleging that the appellant purchased pesticides from the plaintiff and in order to satisfy the price of the pesticides, the appellant issued a cheque of the said amount of his Account No. 1741 being maintained in Allied Bank of Pakistan Ltd. Main Bazaar Sadiqabad which was dishonoured on its presentation before the bank on 01.12.1997 on the ground that the signatures of the appellant did not match with those available with the bank. When contacted by the plaintiff, the appellant refused to pay the said amount. Hence the suit was filed.

2. The appellant contested the suit by filing written statement. He averred that he neither purchased any pesticides from the plaintiff nor issued the disputed cheque and the cheque was result of fraud and forgery. Keeping in view divergent pleadings of the parties, following issues were struck down by the trial Court:

"ISSUES

1. Whether the cheque in dispute is forged document based on fraud? OPD.

2. Whether the suit is time barred? OPD.

3. Whether the plaintiff is entitled to the decree as prayed for in the plaint? OPD.

4. Whether the suit is not competent in view of preliminary Objections No. 8 and 9 of the written statement? OPD.

5. Relief."

6. After recording oral as well as documentary evidence of the parties, learned trial Court decreed the suit of the respondent with costs vide judgment and decree dated 02.10.2004 which is impugned through the instant RFA.

7. Learned counsel for the appellant has argued the case on legal and factual aspects. He submits that the suit of the plaintiff was not maintainable under the provisions of Negotiable Instruments Act as well as Under Section 69(2) of Partnership Act. He avers that no cheque was ever issued to the present respondent/plaintiff as allegedly the disputed cheque (Exh.P1) was issued in the name of Adnan Corporation. He states that the suit was initially filed by Adnan Corporation and when the written statement was filed raising legal as well as factual objections, an application for amendment of the suit was made by the respondent-plaintiff and the original plaintiff was substituted by the present respondent Muhammad Saleem. Learned counsel asserts that the original plaintiff could not be substituted by a new one and the said act of the trial Court does not commensurate with the provisions of Order XXX, Rule 10, C.P.C. In support of his assertions, learned counsel for the appellant has relied upon the law laid down in case cited as 2009 CLD 163.

8. Conversely, learned counsel for the respondent has controverted the arguments raised by learned counsel for the appellant and fully supported the impugned judgment and decree. He states that the impugned judgment and decree is in accordance with law. He avers that the appellant was liable to pay the amount mentioned in the disputed cheque and that the respondent cannot be non-suited on the basis of mere technicalities.

9. I have heard the arguments put forth by both sides and also perused the record made available before me.

10. My issue-wise findings are given below:

Issues No. 1 & 3

1. Since Issues No. 1 & 3 are inter-connected, therefore, they are being decided together. Primarily, it was incumbent upon the respondent/plaintiff (hereinafter referred to as plaintiff) to prove his case by discharging the onus of Issue No. 3. To prove Issue No. 1, the plaintiff produced as many as four witnesses, i.e. Muhammad Aslam, an Officer of Allied Bank as PW-1, Muhammad Nusrat as PW-3, Muhammad Arshad as PW-4 whereas he himself appeared as PW-2.

2. PW-1 Muhammad Aslam is officer of Allied Bank of which the appellant/defendant was the account holder. He deposed that the disputed cheque was dishonoured on account of difference in signature of the executant. In cross-examination, he stated that when there is a difference of signature, the bank may refuse the encashment of the cheque. He, however, could not tell who signed at the back of the cheque.

3. The plaintiff himself appeared as PW-2. He deposed that he as well as the defendant deal in pesticides and due to this reasons, they have a business relationship with each other; that about 5¬ years ago, the defendant took pesticides of which the payment of Rs. 161,850/- was promised to be made in the November, 1997; that for fulfillment of this obligation, the defendant issued a cheque (Exh.P1) in the presence of Nusrat and Muhammad Arshad; that defendant stated at that time that he did not have a balance in his account and the plaintiff may get encashed the cheque after 12/14 days. When after 12/14 days, the cheque was presented before the Allied Bank for its encashment, the same was dishonoured. In cross-examination, the plaintiff admitted that Adnan Corporation is not a registered firm. He denied the suggestion that he is not the owner of Adnan Corporation. He admitted that on account of business transaction, he used to maintain a register for transactions, however, if any amount is given to someone, the same is not entered in the said register. Then volunteered, they enter the transactions in their register; that he did not enter the transaction of the defendant in the said register. Volunteered that regarding neighbourhood shopkeepers, the transactions are not entered in the register. He denied the suggestion that the defendant has no shop under the name and style of Sada Hussain. He further denied that he has no business relationship with the defendant. He admitted that the witnesses above referred are not marginal witnesses of any writing. He further deposed that there is no witness of sale of the pesticides to the appellant/defendant. He further admitted that he has not mentioned the details of the pesticides in the plaint. At the end, he denied the suggestion that the disputed cheque was not issued by the defendant and the signature on the said cheque are forged and fictitious. He admitted that the cheque was not issued in his name. Volunteered that it was issued in the name of the shop. However, he stated that the defendant malafidely put the false signature on the cheque.

4. PW-3 Muhammad Nusrat deposed that he has a business relationship with the plaintiff and about 5« years ago, he went to Adnan Corporation for receiving his payment of cotton given to the plaintiff; that the plaintiff stated that he has no money and that he has to receive some amount from the defendant and for that reason, he alongwith the plaintiff went to the shop of the defendant where the defendant Riaz-ul-Hassan opened his register and admitted the liability of Rs. 161,000/62,000/- and issued the disputed cheque of Rs. 161,000/62,000/-. In cross-examination, he admitted that he has no business relationship with the defendant. Then volunteered that he used to take pesticides from defendant and the plaintiff. He stated that the name of the shop of the defendant was Sada Hussain. He could not tell the name of the shopkeepers in the surroundings of the shop of the defendant. PW-3 further stated that he used to take pesticides from the plaintiff on credit basis. He admitted that whenever cotton was sold to the plaintiff, he used to issue a receipt. He admitted that the plaintiff did not check his account/khata in his presence regarding liability of the defendant as to how much amount was to be paid by the defendant to him. Volunteered that his khata was checked by the plaintiff himself and the plaintiff had to pay Rs. 161,000/62,000/- to him. Then stated that Rs. 1,15,000/- were due against the plaintiff. He further stated that he took Rs. 50,000/- on that day from the plaintiff. He denied the suggestion that the defendant neither issued any cheque to the plaintiff nor the cheque was signed by the defendant in his presence. He denied the suggestion that the defendant did not do the business of pesticides.

5. Muhammad Arshad appeared as PW-4 and deposed that the defendant gave cheque of Rs. 161,000/62,0000/- to the plaintiff after its due completion and at that time, the defendant stated that he has no balance in his account and the cheque may be got enchased after 10/15 days. In cross-examination, he submitted that the defendant purchased the pesticides from the plaintiff in his presence. He further stated that he has no relationship with the defendant and on account of business transaction, he used to come over there; that he had business transactions with the plaintiff. He, however, denied the suggestion that the defendant was not liable to make any payment to the plaintiff and the disputed cheque is forged one and the signatures on the said cheque were fictitiously and falsely put.

6. Thereafter, the defendant Riaz-ul-Hassan appeared himself as DW-1 and deposed that he has been doing business of transport since 1993 to 2000 when he returned from Saudi Arabia and that he used to run his bus from Sadiqabad to Faisalabad. He categorically stated that he did not have any business of pesticides nor it had any business relationship with the plaintiff; that the disputed cheque was forged and his signatures on the cheque were also fictitious; that he had neither received any amount nor any cheque was issued to the plaintiff. In cross-examination, he denied the suggestion that from 1995 to 2000, he used to do the business of pesticides. He denied the suggestion that after 2000, there existed his shop and he used to open it occasionally. He denied the suggestion that Exh.P1, i.e. disputed cheque, was fraudulently executed by him by putting false signatures. He also denied the suggestion that the plaintiff was entitled to recover from him Rs. 161,850/-.

7. DW-2 Muhammad Jafar Shah supported the version of the defendant by stating that the defendant remained in Saudi Arabia about 7/11 years and after his return therefrom, he used to ply his bus; that he never remained associated with the business of pesticides nor had any business relationship with the plaintiff. In cross-examination, he denied the suggestion that the defendant used to do the business of pesticides in Grain Market, Sadiqabad.

8. In rebuttal, PW-5 Hameed-ud-Din, officer of the Allied Bank, Main Bazar, Sadiqabad was produced as a witness of the plaintiff who deposed that Account No. 1741 was in the name of Syed Riaz-ul-Hassan son of Muhammad Hussain Shah and in the column of signature, name of Riaz Shahid is written. He deposed that he had no record regarding the loss of cheque nor the loss of cheque book was ever reported to the bank. In cross-examination, he stated that it is necessary that whenever the cheque or cheque book is lost, the matter is to be reported to the bank, however, he stated that he did not know any rule in this regard. He denied the suggestion that there is no such rule.

9. From the perusal of above evidence, it comes on the surface that the disputed cheque was not issued in the name of the plaintiff rather it was issued in the name of Adnan Corporation. It is a bearer cheque in the name of Adnan Corporation and not in the name of the plaintiff. The prime duty of the plaintiff was to establish that the said cheque was issued for the fulfillment of any obligation as the issuance of the said cheque was categorically denied by the defendant not only by filing written statement but also during the course of evidence. The plaintiff has not been able to establish that any sort of pesticides were given to the defendants and for its consideration, the said cheque was issued. The evidence produced by the plaintiff is shaky and appears to be manoeuvred. There is material contraction in the statement of the plaintiff and PW-4 regarding presence of the witnesses at the time when the pesticides were allegedly handed over by the plaintiff to the defendant. The plaintiff while appearing as his own witness did not refer to any document or register of delivery of the pesticides to the appellant-defendant on credit and stated that there was no one present when the pesticides were delivered to the defendant whereas the PW-4 Muhammad Arshad contradicted the stance of the plaintiff by deposing that when the pesticides were given to the defendant, he was present on the spot. In addition, it does not appeal to a prudent mind, particularly in the prevailing circumstances, that the pesticides were given to the appellant-defendant but no such entry was made in any register or khata. Usually, whenever any business transaction is made, such entries are recorded in one sort or the other in a register or kahta etc. But in the presence case, no such khata or register was prepared or produced in evidence.

10. Furthermore, when the signatures of the executant were denied and admittedly, the signatures were different from those available with the bank, then the burden to prove the execution of cheque in favour of the plaintiff by the defendant and any consideration for issuance of the cheque heavily lies with the plaintiff which onus could not be discharged by the plaintiff and the execution of the cheque by the defendant could not be proved by the plaintiff beyond reasonable doubt, particularly when there is no allegation in the plaint that the appellant-defendant has put his false signatures on the cheque knowingly just to deceive the plaintiff and that he is entitled to the decree as prayed for.

11. In view of the above, both the Issues No. 1 and 3 are decided in favour of the defendant and against the plaintiff.

Issue No. 2

1. This issue pertains to the point of limitation. The onus to prove it was placed upon the defendant.

2. From the perusal of the record, it is evident that the suit was originally filed by Adnan Corporation through its proprietor Muhammad Saleem on 13.11.2000. Thereafter, an application for amendment of the plaint was filed on 28.11.2001 which was conceded by the defendant on 22.06.2002 and accordingly, amended plaint was filed on the same day. By allowing the said amendment, the original plaintiff Adnan Corporation was replaced with Muhammad Saleem, the present respondent. Under Section 22 of the Limitation Act, 1908, limitation for filing of the suit is to be reckoned from the date when the plaintiff or defendant was substituted or added. Section 22 of the Limitation Act is reproduced below:

"22. Effect of substituting or adding new plaintiff or defendant.--(1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party."

1. Though no specific evidence has been produced by the defendant on this issue but as the question of limitation is a mixed question of law and fact, therefore, this Court is under a legal obligation to determine the maintainability of the suit whenever any such objection is raised. The limitation for filing of the suit for recovery of the amount on the basis of the cheque was three years commencing from the date of refusal of its encashment by the bank. Respondent Muhammad Saleem was substituted as plaintiff on 22.06.2002, as such, the suit of the plaintiff will be deemed to have been filed on 22.06.2002 when the amended plaint was filed whereas the cheque in dispute was refused on 01.12.1997, as such, the suit in view of Section 22 of the Limitation Act was barred by time by one year 6 months and 22 days and was liable to be dismissed on this score alone. In this view of the matter, this issue is also decided in favour of the appellant-defendant and against the respondent-plaintiff.

Issue No. 4

1. In view of my findings on Issues No. 1 and 3, as the cheque was not issued in the name of the present plaintiff and admittedly, it was a bearer cheque issued in the name of Adnan Corporation, therefore, the suit was not maintainable.

2. In view of the above discussion, the judgment and decree passed by the trial Court is against the law and fact, as such, it is not sustainable in the eye of law. Resultantly, the instant RFA is allowed, the impugned judgment and decree dated 02.10.2004 is set aside and the suit of the plaintiff is dismissed.

(R.A.) R.F.A. allowed

PLJ 2014 Lahore 133 [Multan Bench Multan]

Present: Atir Mahmood, J.

MAZHAR IQBAL--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, CHICHAWATANIetc.--Respondents

W.P. No. 13269 of 2013, decided on 12.11.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Production of documentary evidence--Application for submission of list of witnesses, was dismissed--Challenge to--Contents of application--Validity--Petitioner was unaware regarding the non-submission of the list of witnesses and when he tried to deposit the expenses for summoning the witnesses then he came to know that the list of witnesses had not been filed--Since the petitioner has not been able to establish on record any reasonable or good cause for non-submitting the list of witnesses. [Pp. 134 & 135] A & B

Ch. Khawar Siddique Sahi, Advocate for Petitioner.

Date of hearing: 12.11.2013.

Order

Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has impugned the order dated 25.10.2013 passed by the learned Civil Judge Ist. Class, Chichawatni and the order dated 31.10.2013 passed by the learned Additional District Judge, Chichawatni, whereby his application for filing the list of witnesses was dismissed.

1. Brief facts of the case are that Respondent No. 3 filed a suit for declaration with permanent injunction against the petitioner challenging the validity of registered deed No. 694 dated 23.07.2002 and Mutation No. 1432 dated 15.08.2002 and registered Deed No. 13 dated 4.01.2003 and Mutation No. 1473 dated 6.03.2003. This suit was contested by the petitioner through filing the written statement denying the averments of the plaint and out of the divergent pleadings of the parties issues were framed on 3.10.2011. There-after the evidence of the plaintiff as well as of the defendant was completed and the case was fixed for production of the documentary evidence of the petitioner/defendant. At this stage, an application dated 09.10.2013 was filed for submission of the list of witnesses and for summoning the record. This application was dismissed by the learned trial Court vide order dated 25.10.2013 which was assailed in appeal which too met with the same fate, hence this writ petition.

2. Learned counsel for the petitioner submitted that the Courts below have not applied their judicious mind while dismissing the application for submission of the list of witnesses as there was a legitimate right of the petitioner to produce the said witnesses. He has relied upon the judgments reported as The Australasia Bank Ltd. Versus Messrs Mangora Textile Industries, SWAT and others (1981 SCMR 150), Naeem Akhtar Versus Additional District Judge and others (2005 MLD 1713) and Muslim Insurance Co. Ltd. Through Chief Executive and another (2003 MLD 1521).

3. I have heard the arguments of the learned counsel for the petitioner and have also gone through the record with care.

4. I have perused the contents of the application for submission of the list of witnesses, wherein it has been asserted that the petitioner was unaware regarding the non-submission of the list of witnesses and when he tried to deposit the expenses for summoning the witnesses then he came to know that the list of witnesses has not been filed. I am afraid that the contention raised in this application does not come within the definition of good cause as has recently been held by the Hon'ble Supreme Court of Pakistan in the case reported as Muhammad Anwar and others Vs. Mst. Ilyas Begum and others (PLD 2013 Supreme Court 255) in the following terms:--

"Be that as it may, before proceeding with the matter further in the context of answering the propositions herein involved and for the purposes of interpretation of sub-Rules (1) and (2) of Order XVI, C.P.C. and for elucidation of the said question, I would also like to resort to another expression i.e. "sufficient cause" which has been used by the legislature in the provisions of Civil Procedure Code, specially in Order IX, Rule 9 and Order IX, Rule 13 as against the word "good cause" used in Rule 7 of the said Order (IX of C.P.C.); besides Order XLI, Rule 19 thereof. Rules 9 and 13 ibid pertains to setting aside of an ex parte proceedings or the decree on the behest of defendant(s) of a case who must establish a "sufficient cause" while under Rule 7 supra, the plaintiff whose suit has been dismissed for non-prosecution, should show a good cause for seeking its restoration. The distinction between the two expressions shall be made in the succeeding part of the judgment. Anyhow with reference to the proposition(s) in hand, XVI(2) can validly be bifurcated into two parts, firstly, it has been made incumbent upon a party, rather a duty has been cast upon the delinquent party to show `good cause' for omission to file the list of witnesses or the name of a particular witness and the second part is meant to regulate the power, authority and the discretion of the Court in relation to the grant of permission".

It has also been held in the judgment supra that:--

"In the instant case, the learned Revisional Court while overturning the trial Court order has absolutely failed to assign any valid reasons, except invoking the general principle of law that the technicalities of law should not be allowed to thwart the rights of the litigants. I fail to understand as to how the noted principle can be used as a tool to avoid, shun or to defeat the specific rules of law and to save a party from the consequences of its delinquency against the clear command of law on the concept and in terms of legal technicality. It is a well known principle of law that where the law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law cannot be terms as a technicality".

Since the petitioner has not been able to establish on record any reasonable or good cause for non-submitting the list of witnesses. The learned Courts below have rightly dismissed the same. The orders passed by the Courts below are quite in accordance with law and no illegality has been committed which could be reversed by this Court in its extraordinary constitutional jurisdiction.

1. In view of the discussion above, in my view this writ petition is not maintainable which is hereby dismissed in limine.

(R.A.) Petition dismissed

PLJ 2014 Lahore 136 [Multan Bench Multan]

Present: Atir Mahmood, J.

MUHAMMAD AHSAN--Petitioner

versus

MEMBER BOARD OF REVENUE etc.--Respondents

W.P. No. 10197 of 2011, decided on 7.11.2013.

Land Revenue Act, 1967--

----S. 161--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Creation of additional patti--Applications for appointment of lambardar were called--DOR was directed for completion of formalities for creation of additional patti--Challenge to--Competent authority to create additional patti--No locus standi to file appeal before revenue authority or to file writ petition--Notification--No retrospective effect--Question of--Whether revenue authority was justified in creation of additional patti--Validity--EDOR was competent authority for creation of additional patti/additional lambardari and as such revenue department rightly passed the impugned order--Notification had no restrospective effect as matter was already decided by EDOR who was competent authority and mere pendency of appeal u/S. 161 of Land Revenue Act, before M.B.R. did not create any bar having its retrospective effect--Petition was dismissed. [Pp. 138 & 139] A & B

1991 SCMR 1504, rel.

Mr. Muhammad Younis Sheikh, Advocate for Petitioner.

Ch. Khalid Mehmood Arain, Advocate and Rana Muhammad Hussain, AAG for Respondents.

Date of hearing: 7.11.2013

Judgment

Through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, the petitioner has assailed the orders dated 07.07.2011 and 22.02.2011 passed by the Member, Board of Revenue, Punjab Lahore, whereby the order dated 11.02.2009 passed by the Executive District Officer (Revenue), Khanewal was upheld.

1. The brief facts of the case are that after the death of one Muhammad Bakhsh on 06.06.2005 who was lambardar of Mouza Batian, the applications were called by the Tehsildar, Kabirwala for the appointment of lambardar and accordingly one Khadim Hussain, Respondent No. 3 was recommended for the same post by the Tehsildar but the District Officer (Revenue), Khanewal appointed one Muhammad Afzal as lambardar of the said Mouza. An appeal was preferred against the appointment of said Muhammad Afzal before the Executive District Officer (Revenue), Khanewal which was rejected on 14.06.2006 and then a revision petition was filed before the Board of Revenue, Punjab Lahore and out of Court a settlement was arrived in between the parties with the intervention of the inhabitants of the locality to the effect that an application will be filed for creation of additional patti and Muhammad Afzal will be having no objection if Respondent No. 3, Khadim Hussain is appointed as a lambardar of the said additional patti.

2. On the application submitted by Respondent No. 3, proceedings were carried out by the Revenue Department and the case was recommended for creation of additional patti by the District Officer (Revenue), Khanewal. There-after, Respondent No. 2 after receiving the recommendation of field staff etc. summoned the concerned persons to appear before the Executive District Officer (Revenue) but no one entered appearance before the Executive District Officer (Revenue), Khanewal except one Muhammad Muslim and on his behalf, it was asserted that the inhabitants of the Mouza are against the creation of additional patti. This contention of the counsel for the said Muhammad Muslim was rejected by Respondent No. 2 and vide order dated 11.02.2009, the District Officer (Revenue), Khanewal was directed for completion of the formalities for creation of the said additional patti. This order was assailed in appeal by the present petitioner as well as the said Muhammad Muslim before the Senior Member, Board of Revenue, Punjab Lahore. This appeal was filed on 23.02.2009 which was rejected vide order dated 22.02.2011 by Respondent No. 1 and a review petition also met the same fate vide order dated 07.07.2011, hence this writ petition.

3. Learned counsel for the petitioner mainly contended that there was a notification dated 20.01.2011 by which a ban was imposed on the creation of new/azadi patties in revenue estates and subsequent creation of new lambardar posts and the effect of this notification was also extended to the pending cases. Learned counsel for the petitioner submitted that the entire village was against the creation of additional patti and as such the impugned orders are liable to be set-aside. He has relied upon the judgment reported as Muhammad Nawaz Vs. Muhammad Ali and another (2004 CLC 681).

4. On the other hand, learned counsel appearing on behalf of Respondent No. 3 as well as learned AAG has vehemently controverted the submissions made by the learned counsel for the petitioner by asserting that the Executive District Officer (Revenue), Khanewal was the competent authority to create the additional patti in accordance with the needs of the area. He has relied upon the case reported as Shaukat Ali and another Versus Muhammad Shafi and 2 others (1991 SCMR 1504). Further submitted that the petitioner never appeared before the authority i.e. Executive District Officer (Revenue), Khanewal to contest the creation of additional patti and as such he has no locus standi to file the appeal before the revenue authority or to file this writ petition. Reliance has been placed on the cases reported as Gul Muhammad etc. Versus SHO etc. (PLJ 2009 Lahore 952 (DB) and Hafiz Hamdullah Versus Saifullah Khan and others (PLD 2007 Supreme Court 52). It has also been asserted that the notification issued by the Secretary (Colonies), Board of Revenue Punjab, Lahore on 20.01.2011 had no retrospective effect as the matter was decided by the Executive District Officer (Revenue), Khanewal vide order dated 11.02.2009 much before the imposition of ban which attained the finality after the order dated 22.02.2011 passed by the Member (Judicial-III), Board of Revenue Punjab, Lahore.

5. In view of the submissions made by the learned counsel for the parties as well as perusal of the record, the question which are to be answered by this Court are as to whether the revenue authority was justified in creation of the additional patti of the Mouza and as to whether creation of additional patti was illegal in view of the ban imposed by the Secretary (Colonies), Board of Revenue Punjab, Lahore vide Notification No. 2011/45-C.V. dated 20.01.2011. There is no denial to the fact that Respondent No. 2, Executive District Officer (Revenue), Khanewal before passing the impugned order heard the parties at length and perused the reports of the field staff, Executive District Officer (Revenue), Kabirwala and then directed the revenue staff to proceed with the matter for completion of record for the two "patties". The present petitioner never appeared before Respondent No. 2. Though an objection was raised by the residents of the locality in the shape of a joint affidavit submitted before the Tehsildar, Kabirwala but still the revenue authorities did not exceed to their objection and recommended for the creation of additional patti. I am of the considered opinion that Respondent No. 2 was the competent authority for the creation of additional patti/additional lambardari and as such Respondents Nos. 1 and 2 rightly passed the impugned orders. The guidance is sought from the case reported as Shaukat Ali and another Versus Muhammad Shafi and 2 others (1991 SCMR 1504). The relevant portion of the said judgment reads as under:

"The creation of additional Lambardari is also a question of practical need and other requirements of which the authorities concerned are the best judges. In this case they having shown full justification even on the touchstone of the guidelines laid down in the rules; the High Court rightly refused to give relief to the petitioners in its writ jurisdiction. For all these reasons, leave to appeal is refused".

1. The next question as to the legality of the creation of additional patti after the ban imposed by the Secretary (Colonies), Board of Punjab, Lahore vide notification dated 20.01.2011. It is held that the said notification has no retrospective effect as the matter was already decided by the Executive District Officer (Revenue), Khanewal, Respondent No. 2, who was the competent authority and mere pendency of an appeal under Section 161 of the Land Revenue Act, 1967 before the Member, Board of Revenue, Punjab Lahore did not create any bar having its retrospective effect.

2. For what has been discussed above, the petitioner has not been able to make out a case of interference by this Court in its extraordinary constitutional jurisdiction against the concurrent findings of law and facts and this petition being devoid of any force is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 139 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

GHULAM HUSSAIN--Appellant

versus

MUHAMMAD ASLAM--Respondent

R.F.A. No. 54 of 2008, heard on 9.9.2013.

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

----O. XXXVII, Rr. 2 & 3--Suit for recovery was decreed--Challenge to--Post dated cheque was issued for fulfillment of his liability--Objection of appellant that suit was time barred because liability of outstanding amount was regarding the year 2000 and suit was filed in the year 2006--Question of--Whether cheque was validity given for its encashment and entitled for decree--Validity--It is settled principle of law that if any liability is admitted or acknowledge at any subsequent stage the date of limitation starts running from that particular acknowledgement while issuing cheque, appellant accepted liability and as such as the period of limitation does not come in the way of plaintiff--Appeal was dismissed. [P. 143] A

Mr. Mumtaz Mustafa, Advocate for Appellant.

Mian Muhammad Suleman Joyia, Advocate for Respondent.

Date of hearing: 9.9.2013

Judgment

Through this Regular First Appeal, the appellant Ghulam Husssain has impugned the judgment and decree dated 19.04.2008 passed by learned Additional District Judge, Rahim Yar Khan whereby the suit of the respondent-plaintiff under Order XXXVII C.P.C. for recovery of Rs. 1,00,000/- was decreed with costs.

1. Brief facts of the case are that the respondent Muhammad Aslam filed a suit under Order XXXVII C.P.C. for recovery of an amount of Rs. 1,00,000/- from the appellant alleging that the appellant was liable to pay Rs. 100,000/-; that in order to discharge his liability, the appellant issued a Cheque No. 12625847 dated 10.07.2006 of his Account No. 1466 being maintained in UBL Shahi Road, Rahim Yar Khan; that the cheque was dishonoured when presented before the bank for encashment and Rs. 200/- were also charged from the plaintiff; that when contacted by the plaintiff, the petitioner-defendant refused to pay the amount due against him. Hence this suit was filed.

2. The petitioner-defendant contested the suit by filing written statement. Out of divergent pleadings of the parties, the following issues were framed.

"ISSUES

1. Whether the plaintiff is entitled to recover money amounting to Rs. 1,00,000/- from the defendant on the basis of Cheque No. 12625847 dated 10.07.2007 as prayed for? OPP.

2. Whether the plaintiff has got no cause of action to file the present suit?OPD.

3. Whether the plaintiff filed the instant suit on the basis of fraudulent and fabricated facts, while the disputed cheque was lost from the defendant (as blank) and in this respect, the defendant got entered Rapat No. 37 dated 24.10.2000 at P/S Abadpur, due to which impugned cheque is out-dated and is not maintainable in its present form and is liable to be rejected?OPD.

4. Whether the plaintiff has come to the Court with unclean hands?OPD.

5. Whether the suit is time barred?OPD.

6. Whether the plaintiff has filed this false and frivolous suit, hence, the defendant is entitled to get special costs of Rs. 10,000/-?OPD.

7. Relief."

8. After recording oral as well as documentary evidence of the parties, learned trial Court proceeded to decree the suit vide judgment and decree dated 19.04.2008. Hence this RFA.

9. Learned counsel for the appellant inter alia contends that joint findings of learned trial Court on Issues No. 1 & 3 are against settled principles of dispensation of justice; that the plaintiff during his cross-examination states that he was given the disputed cheuqe on 11.01.2006 on account of amount pertaining to outstanding business money relating to year 2000 whereas the cheque from the face of it appears to have been executed on 10.07.2006 which fact was altogether ignored by learned trial Court; that the suit of the respondent was badly barred by time as it was filed on 22.07.2006 for an amount pertaining to the year 2000; that the cheque in question was forged one; that the appellant denies the execution of cheque; that the appellant did not sign the cheque; that the signature over the cheque did not tally with the signatures of the appellant available with the bank; that the cheque pertains to business account of Ahmad Bilal and Company wherein the plaintiff was employee who misappropriated the cheque and filled in the amount at his own to used it against the appellant; that the version of the appellant has been altogether ignored; that the learned trial Court has failed to appreciate the evidence in its true spirit and picked up the inconsequential portion of evidence without reference to the context; that the impugned judgment and decree suffers from material irregularities and misreading and non-reading of evidence, therefore, it cannot sustain in the eye of law. Learned counsel prays that this RFA be allowed and the impugned judgment and decree be set aside.

10. On the other hand, learned counsel for the respondent has supported the impugned judgment by asserting that the learned trial Court rightly decreed the suit by appreciating the evidence produced by the parties; that onus to prove on Issues No. 2 to 7 was upon the appellant/defendant, who failed to discharge the same by production of any cogent and reliable evidence.

11. After perusal of the record and hearing the arguments, the point for consideration before this Court is whether the cheque in dispute was validly given to the respondent/plaintiff for its encashment and the respondent was entitled for the decree as prayed for.

12. As per contents of the plaint, the appellant issued the disputed cheque for the fulfillment of his liability towards the respondent and while filing the written statement the appellant did not deny the signatures on the disputed cheque but stated that the cheque was misplaced and a Rapt No. 37 dated 14.10.2000 was got registered with the local police. In the preliminary Objection No. 5, the appellant stated that he is not liable to make payment of any amount to the plaintiff and the disputed cheque is without consideration.

13. The respondent appeared himself as PW-1 and deposed that the defendant issued the Cheque No. 12625847 dated 10.07.2006 of UBL Rahimyarkhan for the fulfillment of his liability and when the said cheque Ex. P1 was presented for encashment, it was dishonoured on 10.07.2006. Ex. P2 is the memorandum issued by the bank wherein it has been written that his account was closed. In cross-examination the respondent stated that the said cheque was given on 11.01.2006 and the liability for the said payment was for the year 2000. In cross-examination he categorically denied the suggestion that Ex. P1 was prepared by him by committing fraud and forgery. It has not been suggested to the PW-1 that the signatures of the appellant on the cheque were forged. PW-2 Muhammad Sadiq son of Taj Muhammad and PW-3 Maqsood Ahmad son of Ghulam Muhammad supported the contentions of the respondent and they both categorically stated that the disputed cheque was filled-in by the appellant/defendant himself, who signed the same in their presence. Nothing could be brought on record through cross-examination which could favour the present appellant. PW-4 Ihsan Qadar, the Area Operation Manager of UBL certified the cheque Ex.P1 being of his branch of Railway Road, Rahimyarkhan and stated that the bank account was closed. In cross-examination PW-4 stated that the signatures of Ghulam Hassan on Ex. P1 are different from the signatures on the specimen card retained by the bank. He stated that the defendant has signed the specimen signatures by writing ( ) whereas on Ex. P1, the signatures are different. In rebuttal the present appellant appeared as DW-1 and for the first time deposed that he did not know the plaintiff. He also deposed that the cheque Ex. P1 was misplaced on 25.06.2000 when he came to Rahimyarkhan. He further deposed that on 14.10.2000 a Rapt No. 37 was got entered with Police Station Abadpur, Rahimyarkhan. He further stated that his signatures on Ex. P1 are forged and fictitious. In cross-examination he submitted that he sworn an affidavit on 26.06.2000 for registration of the rapt in the police. He further stated that his rapt was recorded in the police station on the telephone of one Sain Hassan Makhdoom to whom he does not want to produce in his evidence. In my view the appellant/defendant made a departure from the pleadings i.e. written statement by stating that he did not know the plaintiff and that his signatures on the disputed cheque are forged and fictitious. It is un- believable that a person, who is not known to the other how he can put the forge signatures on a document just identical to the originals. Though the appellant denied the execution of his signatures on the disputed cheque but still no effort was made to get the comparison of his signatures with disputed as well as with admitted signatures through examination by a hand-writing expert. I, myself, have examined and compared the signatures of the appellant on the disputed cheque with the signatures of the appellant put on the written statement. In my opinion both the signatures are just identical.

14. As regards the objection raised by the learned counsel for the appellant that the cheque was stated to be given on 11.1.2006 whereas the date for presentation before the bank was written to be 11.7.2006, is no consequence because from the evidence of the respondent/plaintiff, it is established beyond any doubt that the appellant issued the post dated cheque on 11.1.2006 and handed over to the respondent for fulfillment of his liability which pertains to the year 2000. Accordingly, the objection of the appellant that the suit was time barred because the alleged liability of outstanding amount was regarding the year 2000 and the suit was filed in the year 2006 is immaterial. It is settled principle of law that if any liability is admitted or acknowledged at any subsequent stage the date of limitation starts running from that particular acknowledgement and in my considered opinion while issuing the cheque dated 10.7.2006, the appellant accepted the liability and as such the period of limitation does not come in the way of the respondent/plaintiff.

15. I am of the considered opinion that the respondent established his claim against the present appellant through production of convincing and cogent evidence whereas the appellant miserably failed to controvert the respondent and as such the findings of the learned trial Court do not suffer from any illegality or material irregularity and this appeal being devoid of any force is dismissed.

(R.A.) Appeal dismissed

PLJ 2014 Lahore 144 [Multan Bench Multan]

Present: Shezada Mazhar, J.

MUHAMMAD AFZAL--Petitioner

versus

STATE and 4 others--Respondents

W.P. No. 9995 of 2013, decided on 4.9.2013.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 491(1-A)--Constitutional petition--Detenues were released subject to submit surety bond--Order was challenged--Question of--Whether Court while proceeding on petition u/S. 491, Cr.P.C. can call for security for releasing of detenues from alleged illegal custody--Validity--Due to difference of parentage of the alleged accused of the FIR/detenues, Sessions Judge granted time to DSP to verify the guilt accused/ detenues and in the meantime, the detenues were set at liberty subject to furnishing security--Security was obtained only for production of detenues/accused in the FIR for their production in future, if the same is required--Petition was dismissed. [P. 147] A

Ch. Faqir Muhammad, Advocate for Petitioner.

Rana Muhammad Hussain, AAG for State.

Date of hearing: 4.9.2013.

Order

Facts leading to the filing of present petition are that case FIR No. 482/2013 dated 16.08.13 was registered u/S. 395, PPC with Police station Makhdum Rasheed, District Multan against Muhammad Riaz s/o Allah Bukhsh, Ghulam Abbas alias Abbasa s/o Muhammad Aslam, Muhammad Alyas alias Alyasa s/o Muhammad Bukhsh, Gull Sher s/o Allah Bukhsh and Fayyaz Ahmad. In the said FIR, Respondent No. 3 allegedly, illegally and without any lawful justification detained petitioner's sons namely Ghulam Abbas and Alyas. The petitioner filed an application u/S. 491, Cr.P.C. in the Court of learned Sessions Judge Multan who appointed bailiff. The bailiff visited the police station and produced the alleged detenues before the Court and the Court passed the following order on 17.08.2013:--

"Matter needs probe, therefore, Mr. Maqbool Hussain, DSP, Makhdum Rasheed Circle was called. DSP seeks time to verify the guilt of both the accused/detenues. Prima-facie, parentage of both the accused/detenues is different from the mentioned in the FIR, therefore, both the accused/detenues are set at liberty subject to furnishing surety bonds in the sum of Rs. one lakh each with one surety each in the like amount to the satisfaction of this Court with the condition that surety shall produce both the detenues before this Court whenever required. DSP shall submit report about the guilt of both the accused/detenues before this Court on 21.08.2013. Both the detenues as well as petitioner shall join the investigation with the DSP."

1. In the present petition, learned counsel for the petitioner has challenged the above mentioned order of the learned Sessions Judge to the extent of furnishing surety bonds in the sum of Rs. 1,00,000/- each with one surety each.

2. Learned counsel for petitioner submits that the petition u/S. 491, Cr.P.C. was never converted into bail therefore, learned Sessions Judge could not demand the surety. Further submits that the learned Sessions Judge could only release the detenues after the verification that the detention of the detenues was illegal. In the present case, parentage of both the detenues is different from the contents mentioned in the FIR, therefore, the learned Sessions Judge could only pass order for the release of the detenues. In this regard, learned counsel relies upon case law titled: "Muhammad Shafi. Vs. Muhammad Boota and another" (PLD 1975 Lahore 729).

3. Learned AAG was called and was directed to assist this Court in this matter. He supports the order passed by the learned Sessions Judge as the same is in accordance with law and in this regard relics upon case law titled: "Haji Hasnain Vs. Superintendent of Police Jacobabad and 8 others" (2001 MLD 1295).

4. I have heard the arguments of both the learned counsel and have also gone through the judgments referred above.

5. I am afraid that the case law referred by the counsels is of no assistance as the matter in controversy is "Whether the Court while proceeding on petition u/S. 491, Cr.P.C. can call for security for the release of the detenues from the alleged illegal custody or not?". The judgment relied upon by the learned counsel for petitioner titled: "Muhammad Shafi Vs. Muhammad Boota and another" (PLD 1975 Lahore 729) in which it was held as under:

"Section 491 Code of the Criminal Procedure and Article 9 of the Constitution of the Islamic Republic of Pakistan provide a remedy in all cases of wrongful deprivation of personal liberty. The Court secures the liberty of the person by ordering his immediate release from unlawful detention. It cannot grant any other relief to the detenue in respect of allegations of wrongful detention or any allegation of torture or some other in humane acts committed on his person. This, however, does not mean that such a person has no remedy in law. For every wrong there is a remedy and for every injury caused to a person he can claim damages in the form of compensation. Wrongful detention is also an offence under the Pakistan Penal Code, and if the police is reluctant to register a case or investigate it, the complainant may file a complaint direct to the Magistrate. If only persons in Pakistan were to become conscious of their rights under law, and enforce their claims for damages for wrongful detentions under the law of Torts against Police Officers guilty of such highhandedness and illegal acts, the reign of terror let loose by them will, be a great extent, come under control. They indulge in these activities without compunction, because they fear no harm. The Court, on finding that the detention is illegal, orders release, and the detenue, feeling satisfied with the release, taken no further action. With such an apathy on the part of suffering people one cannot expect any change in the conduct of delinquent Police Officers. Unless there is a realization of one's rights, and consciousness of the fact that the mis-creants should be brought to book, there cannot be a hope for better conditions."

1. The above para clarifies that the judgment is of no help in the controversy in hand. Similarly, the judgment relied upon by the learned AAG reported as "Haji Hasnain Vs. Superintendent of Police Jacobabad and 8 others" (2001 MLD 1295), although is related to illegal detention, but is of no help in the present controversy.

2. High Court has already granted powers of Section 491 of the Code of the Criminal Procedure 1898 to the Sessions Judges under Section 491(1-A) of the Code of the Criminal Procedure 1898. The Hon'ble High Court has framed rules for the exercise of powers under Section 491 of the Code of the Criminal Procedure 1898 and in Volume. V, Chapter 4, Part-F, Rule 3 states as under:

"If the application for an order under clause (a) or (b) of sub-section (1) of the section alleges that a person is confined under such circumstances that the confinement amounts to an offence, the Court may, at the time of issuing a rule nisi, also issue a search warrant, and the person to whom the warrant is direction, may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately brought before the Court, which shall made such order in the circumstances of the case may seem to be proper."

1. The above said Rule 3 clearly states that on production of detenue, the Court have the powers to make such order as in the circumstances of the case may seem to be proper.

2. In the present case, due to difference of parentage of the alleged accused of the FIR/detenues, the learned Sessions Judge granted time to DSP to verify the guilt of both the accused/detenues and in the meantime, the detenues were set at liberty subject to furnishing security. It is obvious from the above order that the security was obtained only for the production of the detenues/accused in the FIR for their production in future, if the same is required. Respondent No. 1 had ample powers/jurisdiction under above noted rule to pass such an order.

3. In the facts and circumstances of the case, this Court finds no illegality in the impugned order, therefore, the present petition is dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 147

Present: Abdus Sattar Asghar, J.

MUHAMMAD AKRAM--Petitioner

versus

D.G. PAKISTAN RANGERS, etc.--Respondents

W.P. No. 13499 of 2013, decided on 20.11.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--Service matter--Benefits of intervening period--Legal obligation to implement judgment--No stay order was passed--Validity--Mere filing of CPLA, therefore, does not operate to suspend the operation of the judgment passed by F.S.T.--Petition was allowed. [P. 149] A

Mr. Mahmood Hussain Mian, Advocate for Petitioner.

Mr. Javed Ahmed Kasuri, Deputy Attorney General for State.

Date of hearing: 20.11.2013.

Order

Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 seeking a direction to the respondents to implement the judgment dated 20.3.2013 passed by learned Federal Services Tribunal to reinstate the petitioner in service and also to pay him the benefits of the intervening period treating it as leave of the kind due.

1. It is argued by learned counsel for the petitioner that respondents are under legal obligation to implement the judgment dated 20.3.2013 of the Federal Service Tribunal but they are declining to act in accordance with the judgment hence this constitutional petition. Reliance is made upon Abdul Hafeez Abbasi and others Vs. Managing Director, Pakistan International Airlines Corportion, Karachi and others (2002 SCMR 1034) and Ghulam Sarwar Vs. Habib Bank Limited and others (2001 PLC (C.S) 198.

2. On the other hand learned Law Officer with reference to the parawise comments submitted by the respondents contends that a CPLA has been filed by the respondents' department against the judgment dated 20.3.2013 which is pending adjudication before the Hon'ble Apex Court therefore this constitutional petition is not maintainable.

3. Arguments heard. Record perused.

4. Perusal of the record reveals that petitioner while serving as Inspector in Pakistan Rangers was awarded major penalty of compulsory retirement. On 01.11.2005 he filed an appeal Bearing No. 692(L)CS/ 2005 before the Federal Service Tribunal Lahore which was disposed of vide judgment dated 20.3.2013. It may be expedient to reproduce the operative part of the judgment dated 20.3.2013 which reads below:

"--We accordingly set aside the order dated 27.7.2005, reinstate the appellant in service subject to the condition that he returns all his pensionary benefits as per rules/instructions of his Department and reduce the punishment to minor penalty of severe reprimand. The intervening period is treated as leave of the kind due."

1. The contention raised by learned Law Officer that judgment of the learned Federal Service Tribunal is not being implemented as the respondents' department has filed CPLA before the Hon'ble Apex Court is devoid of any force and untenable. Needless to say that mere filing of the CPLA before the Hon'ble Apex Court does not amount to stay the operation of the judgment of learned Federal Service Tribunal. The Hon'ble Apex Court in the case of Abdul Hafeez Abbasi and others (supra) has laid down the dictum as under:--

"25. We are inclined to accede to the request so made by the learned counsel because after passing of judgment dated 29.5.2001 by Federal Service Tribunal PIAC had an obligation to honour it and re-instate the employees Abdul Hafeez Abbasi and others or if PIAC had any reservation in not implementing the judgment then a stay order should have been obtained by them from this Court. Admittedly no stay order was obtained by PIAC, therefore, the judgment of Federal Service Tribunal remained operative. As such we direct that the employees be reinstated with effect from the date of passing of the impugned judgment by FST with all back benefits."

1. Learned Law Officer in attendance admits that in this case no stay order was passed by the Hon'ble Apex Court. Mere filing of the CPLA therefore does not operate to suspend the operation of the judgment dated 20.3.2013 passed by learned Federal Service Tribunal Lahore.

2. For the above reasons this writ petition is allowed and the respondents are directed to implement the judgment dated 20.3.2013 passed by Federal Service Tribunal Lahore.

(R.A.) Petition allowed

PLJ 2014 Lahore 149 (DB)

Present: Ijaz Ahmad and M. Sohail Iqbal Bhatti, JJ.

MUNSHI AFZAL--Petitioner

versus

MUHAMMAD SHOAIB, etc.--Respondents

W.P. Nos. 345, 274 & 611 of 2011 and 5411 of 2010, decided on 4.12.2013.

Interpretation of Statutes--

----It is an established principle of interpretation of statutes that one provision of a statute cannot be read as a sore thumb and for purposes of interpretation the entire statute has to be read as a whole. [P. 156] A

National Accountability Ordinance, 1999 (XVIII of 1999)--

----Ss. 5(o), 9(a), 19 & 27--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Power of NAB to call for information from any person during course of an enquiry or an investigation--Holder of public office being D.D.O.R.--Validity--If a private person aids, assists, abets, attempts or acts in conspiracy with a person or a holder of a public office accused of an offence can't be excluded from the application of NAB Ordinance--Provisions of National Accountability Ordinance, 1999 are applicable even to a person who is not holder of a public office but who has aided, assisted, abetted, attempted or acted in conspiracy with holder of a public office and the words "any other person" appearing in Section 9(a) of the National Accountability Ordinance, are to be understood and applied accordingly--Private person can be proceeded against under the National Accountability Ordinance, 1999 if the other conditions mentioned in the Ordinance are satisfied--Petitions were dismissed. [P. 156] B, C & D

Alhaj Habib-ur-Rehman Abbasi and Mr. Nasim Sabir Ch., Advocates for Petitioners in W.P. No. 345/11, W.P. No. 274/11 and W.P. No. 5411/10.

Barrister Saeed ur Rehman, A.G.P.G for NAB.

Mr. Ghulam Farooq Awan, Advocate for Petitioner in W.P. No. 5411/10.

Date of hearing: 4.12.2013.

Order

Through this order we propose to decide W.P. No. 345/11, W.P. No. 5411/10 and W.P. No. 274/11 and W.P. No. 611/11.

1. Brief facts giving rise to the filing of these writ petitions are that one Ramzan Ali lodged a complaint with Chairman NAB with the contention that on 23.9.2004 he entered into an agreement to purchase Plot No. NW 387 measuring 12 Marlas situated at Main Murree Road, Rawalpindi for a sum of Rs. 98,00,000/-. The complainant further alleged that a sum of Rs. 35,00,000/- was paid by him to Raja Muhammad Hanif in the presence of Raja Altaf Hussain and Raja Muhammad Amin Abbasi, whose particulars are given in Paragraph No. 2 of the complaint. The complainant further alleged that it was also agreed that the agreement to sell shall be finalized on 23.1.2005. It was also alleged by the complainant that the said Raja Muhammad Hanif failed to fulfill his contractual obligations towards the complainant, however, with the intervention of the respectables of the locality a reconciliation was arrived at; and on 29.4.2005 Raja Muhammad Hanif received the remaining sale price from the complainant and effected a registered sale-deed in favour of the complainant.

2. It was then disclosed to the complainant that the actual owner of the plot in question is not Munshi Muhammad Afzal, (present petitioner) and the plot in fact belongs to the father of the present petitioner. The complainant alleged that the registered sale-deed had been effected in his favour but possession of the plot is with some other person. It is noteworthy to point out here that the petitioner Raja Altaf in W.P. No. 5411/2010 is a witness of the sale-deed and Qazi Naseer Ahmad, petitioner in W.P. No. 274/11 at the relevant time of registration of the sale-deed was working as DDOR, Rawalpindi in the year 2005, who sanctioned and approved the sale-deed which was registered on 25.4.2005 in favour of the petitioner. NAB authorities took cognizance of the matter and issued warrant of arrest of the present petitioner. Similarly, the petitioner in W.P. No. 5411/10 was ordered to appear before the Naib authorities under Sections 19 and 27 of the National Accountability Ordinance, 1999. Qazir Naseer Ahmad was also required to appear before the Investigating Officer/Assistant Director NAB. The petitioners in the above mentioned writ petitions challenged the jurisdiction of the NAB authorities to issue the warrant of arrest of the writ-petitioner in W.P. No. 345/11 and orders requiring the appearance of the other petitioners before the Investigating Officer in W.Ps No. 274/11 and 5411/10. The present petitioner has already been granted. The case is adjourned to interim post arrest bail in W.P. No. 611/11.

3. Learned counsels for the petitioners have contended that perusal of the application would show that no offence is made out against the petitioners. At the most it was a contractual dispute and no criminal liability can be fixed upon the present petitioner and petitioners in W.P. No. 5411/10, W.P. No. 274/11 and W.P. No. 345/11 could not have been ordered to appear before the NAB authorities as they do not fall within the definition of a person as envisaged in Section 5(o) of the NAB Ordinance.

4. Learned counsel appearing on behalf of NAB while advancing his arguments submitted that House No. B-133 Chandni Chowk Satellite Town was sold by the complainant by portraying it as House No. NW-387 Satellite Town Rawalpindi. The seller (Munshi Muhammad Afzal) by concealing the fact made this sale-deed with complainant in connivance with the Sub-Registrar Qazi Naseer, petitioner in W.P. No. 274/11 and in connivance with the other nominated accused persons in the complaint alongwith Raja Altaf Hussain, petitioner in W.P. No. 5411/10, who was a witness to the sale-deed. It was further submitted that Qazi Naseer being the holder of a public office was guilty of corrupt practices and the other petitioners being the abettors in conspiracy with the holder of a public office are covered by the National Accountability Ordinance, 1999 and the notices were rightly issued to the petitioners in W.P. No. 5411/10, W.P. No. 274/11 and warrant of arrest of the petitioner in W.P. No. 345/11; to appear before the Investigating Officer under Section 19 read with Section 27 of the National Accountability Ordinance, 1999.

5. We have considered the arguments advanced by the learned counsel for the petitioner and A.D.P.G appearing on behalf of NAB authorities and perused the record.

6. The only point requiring the determination would be as to whether the petitioners fall within the definition of a person under the National Accountability Ordinance, 1999 and whether they can be summoned by the Chairman, NAB during the course of enquiry or investigation.

7. Section 5(o) of the National Accountability Ordinance, 1999 reads as under:

"5(o) "Person" [unless the context otherwise so requires] includes in the case of a [company or a body corporate], the sponsors, Chairman, Chief Executive, Managing Director, elected Directors, by whatever name called, and guarantors of the company [or body corporate] or any one exercising direction or control of the affairs of such [company or a body corporate], [.....] and in the case of any firm, partnership or sole proprietorship, the partners, proprietor or any person having any interest in the said firm, partnership or proprietorship concern or direction or control thereof."

But at the same time we have to examine the effect of Section 9 of the National Accountability Ordinance, 1999 which defines corruption and corrupt practices.

"9. Corruption and Corrupt Practices.--(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:--

(i) if he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward such as is specified in S.161 of the Pakistan Penal Code (Act, XLV of 1860) for doing or for-bearing to do any official act, or for showing or for-bearing to show, in the exercise of his official functions, favour or disfavor to any person, or for rendering or attempting to render any service or dis-service to any persons; or

(ii) if he accepts or obtains or offers any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with his official functions or from any person whom he knows to be interested in or related to the person so concerned; or

(iii) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or willfully allows any other person so to do; or

(iv) if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse or dependents or any other person, any property, valuable thing, or pecuniary advantage; or

(v) if he or any of his dependents or benamidars owns, possesses, or has [acquired] right or title in any [assets or holds irrevocable power of attorney in respect of any assets] or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for, [or maintains a standard of living beyond that which is commensurate with his sources of income]

(vi) [if he] misuses his authority so as to gain any benefit or favour for himself or any other person, or renders or attempt to render to do so, [or willfully fails to exercise his authority to prevent grant, or rendition of any undue benefit or favour which he could have prevented by exercising his Authority]

(vii) if he has issued any directive, policy, or any SRO [Statutory Regulatory Order] or any other order which grants or [attempts to grant] any [undue] concession or benefit in any taxation matter of law or otherwise so as to benefit himself or any relative or associate or a benamidar, [or any other person] or himself or any relative or associate or a benamidar [or any other person] or

(viii) if he commits an offence of willful default; or

(ix) if he commits the offence of cheating as defined in Section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and thereby dishonestly induces members of the public-at-large to deliver any property including money or valuable security to any person; or

(x) if he commits the offence of criminal breach of trust as defined in Section 405 of the Pakistan Penal Code, 1860 (Act XLV of 1860), with regard to any property including money or valuable security entrusted to him by members of the public-at-large;

(xi) if he, in his capacity as a banker, merchant, factor, broker, attorney or agent, commit criminal breach of trust as provided in Section 409 of the Pakistan Penal Code, 1860 (Act XVL of 1860) in respect of property entrusted to him or over which he has dominion, and

(xii) if he aids, assists, abets, attempts or acts in conspiracy with a person or a holder of public office accused of an offence as provided in clauses (i) to (xi)."

1. It is explicit from Section 9(a) that a holder of a public office, or any other person is said to commit or to have committed the offence of corruption and corrupt practices if he aids, assists, abets attempts or acts in conspiracy with a person or a holder of public office of an offence as provided in clause (i) to (xii) of National Accountability Ordinance, 1999.

2. Had the intention of the legislature been to exclude private persons as the present petitioners it would have been specifically provided in Section 9(a) that any other person means a person defined in Section 5(o) and not the private person, Clause (xii) of Section 9 National Accountability Ordinance, 1999 reads as under:

"If he adds, assists, abets, attempts or acts in conspiracy with a person or holder of a public office......"

It clarifies that it includes a private person alongwith a person defined in Section 5(o).

1. It would also be beneficial to refer to the definition of "Accused" and "offence" as given in Section 5(a) and 5(n) respectively when read with Section 9(a) of the National Accountability Ordinance, 1999 makes it clear that any person can be tried or summoned by the NAB authorities. The relevant provisions are reproduced hereunder:

"5 (a) Accused" shall include a person in respect of whom there are reasonable grounds to believe, [that he] is or has been involved in the commission of any offence [triable] under this Ordinance or is subject of an investigation [or] inquiry by the National Accountability Bureau, or [any other agency authorized by the National Accountability Bureau in this regard under this Ordinance].

"5(n) "offence" means the offences of corruption and corrupt practices [and other offences] as defined in this Ordinance and includes [the offences] specified in the Schedule to this Ordinance."

1. Reading of Section 9(a) makes it clear that the use of words "any other person" is not related or attached with the words "holder of a public office" as there is a coma before the word "or".

2. Similarly Section 19 of the National Accountability Ordinance, 1999 is also reproduced as under:--

"19. Power to call for information.--The Chairman NAB [an officer of the NAB duly authorized by him] may, during the course of an inquiry or investigation [of an offence under this Ordinance] or any rule or order made thereunder:--

(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Ordinance or any rule or order made thereunder;

(b) require any person to produce or deliver any document or thing useful or relevant to the inquiry or investigation;

(c) examine any person acquainted with the facts and circumstances of the case;

[(d) require any bank or financial institution, notwithstanding anything contained in any other law for the time being in force, to provide any information relating to any person whosoever, including copies of entries made in a bank's or a financial institution's books such as ledgers, day books, cash books and all other books, including record of information and transactions saved in electronic or digital form, and the keepers of such books or records shall be obliged to certify the copies in accordance with law; and]

[(e) where there is reasonable suspicion that any person is involved in or is privy to an offence under this Ordinance, the Chairman NAB may, with the prior approval in writing of the high Court concerned, direct that surveillance of that person may be carried out through such means as may be necessary in the facts and circumstances of the case and the Chairman NAB, may in this regard seek the aid and assistance of any Government agency and the information so collected may be used as evidence in the trial under this Ordinance;

Provided that the copies obtained or information received or evidence collected under Clauses (d) and (e) shall be [kept] confidential and shall not be used for any purpose other than for legal proceedings under this Ordinance.]

This empowers the NAB authorities to call for information from any person during the course of an enquiry or an investigation.

1. It is an established principle of Interpretation of Statutes that one provision of a statute cannot be read as a sore thumb and for purposes of interpretation the entire statute has to be read as a whole.

2. The examination of relevant sections of the NAB ordinance makes it clear that if a private person aids, assists, abets, attempts or acts in conspiracy with a person (as defined in Section 5(o)) or a holder of a public office accused of an offence can't be excluded from the application of NAB Ordinance.

3. In the present case Qazi Naseer Ahmad at the relevant time was a holder of a public office being DDOR/Registrar, Rawalpindi and the petitioners had acted in conspiracy with one another.

4. Moreover Section 19 of the NAB Ordinance empowers the NAB authorities to call for information from any person for purpose of satisfying whether there has been any contravention of the provisions of the NAB Ordinance.

5. For what has been discussed above we hold and declare that the provisions of National Accountability Ordinance, 1999 are applicable even to a person who is not holder of a public office but who has aided, assisted, abetted, attempted or acted in conspiracy with holder of a public office and the words "any other person" appearing in Section 9(a) of the National Accountability Ordinance, 1999 are to be understood and applied accordingly. For removal of any doubt or ambiguity it is clarified that a private person can be proceeded against under the National Accountability Ordinance, 1999 if the other conditions mentioned in the Ordinance are satisfied.

6. As a sequel to the above discussion, we hold that the present writ petitions are devoid of any merit. The same are, therefore, dismissed.

(R.A.) Petitions dismissed

PLJ 2014 Lahore 157 [Multan Bench Multan]

Present: Muhammad Qasim Khan, J.

MUHAMMAD UMAR LODHI, XEN (OPERATION) MEPCO, CITY DIVISION, MULTAN--Petitioner

versus

WAPDA through its Chairman, WAPDA House, Lahore and 2 others--Respondents

W.P. No. 10 of 2012, heard on 31.5.2013.

Constitution of Pakistan, 1973--

----Arts. 8 & 199--Constitutional petition--Major penalty of censure--Discredit of employee--Question of--Whether punishment of censure can be considered as stigma on service career of an employee and whether on basis of censure marks can be deducted from totally of an employee--Validity--Practice of MEPCO in deducting marks on basis of punishment of censure from credit of its employee at time of considering his case for promotion, is totally illegal and flagrant deviation from the judgment of PLJ 2006 SC 1429, thus such practice infringes Art. 8 of Constitution--Petition was allowed. [P. 161] A

PLJ 2006 SC 1429, rel.

Sardar Muhammad Sarfraz Dogar, Advocate for Petitioner.

Rao Muhammad Iqbal, Advocate with Mian Muhammad Sohail Afzal, DM (T&MP) for Respondents.

Date of hearing: 31.5.2013.

Judgment

With the concurrence of learned counsel for the parties, this writ petition is being decided as a PAKKA case.

1. Briefly the facts of the instant case are that petitioner who admittedly is an employee with Water & Power Development Authority (hereinafter to be referred as "WAPDA"), working under Multan Electric Power Company (hereinafter to be called as "MEPCO"), at one point of time had been imposed a minor penalty of "censure" along with certain co-employees. According to the petitioner, he is now at the verge of promotion but his grievance is that at the time of promotion the penalty of "CENSURE" is also being considered by the Departmental Promotion Committee to the discredit of the employee, as such, under the WAPDA Promotion Policy, 1.5 marks are deducted from the score of the employee, on the basis of "CENSURE". The contention of the learned counsel for the petitioner is that the impugned practice of deducting 1.5 marks on account of minor penalty of "CENSURE", is glaring violation of the judgment dated 7.04.2009 delivered by Hon'ble Supreme Court of Pakistan in Human Rights Case No. 5/2009. In this respect the learned counsel for the petitioner specially referred to Para-2 of the said judgment to emphasize that the apex Court has clearly held "censure is not a serious stigma debarring a person/employee to enjoy future professional career". On the strength of above referred judgment of the Hon'ble Supreme Court of Pakistan, the learned counsel has attacked the very Promotion Policy, 2007 (revised through Office Memorandum No. GM (HR)/HRDA-598/743-73, contending that the same is ultra vires to the Constitution of Islamic Republic of Pakistan, 1973.

2. The learned counsel representing WAPDA assisted by representative of the respondent/department referred to Annex-B attached to the Revised Promotion Policy, under the heading "quantifying the confidential reports overall assessment" and argued that Para-3(d) carries a note and in terms of it clause 2(b) Censure has been considered to be a minor penalty, as such, 1-« marks on that count are deducted from the score of a contestant who during his service ever earned "CENSURE". The learned counsel for respondent/MEPCO, therefore, contended that there is nothing wrong with the practice being carried out by the Departmental Authorities.

3. I have heard the arguments of learned counsel for the parties at considerable length and perused the entire record with their able assistance.

4. The learned counsel for the respondent/MEPCO while arguing the case before this Court or even in the written statement filed by the respondent/department, raised no objection about the maintainability of this writ petition on the ground that it carried a factual controversy or that the parties to the writ petition were in fact covered by the definition of "master & servant". However, in report and parawise comments filed on behalf of respondent/MEPCO, these grounds have been taken in the following terms:--

"(I) That, MEPCO has no its statutory rules being a company registered under the Companies Ordinance, 1984. The writ petitioner under Article 199 of the Constitution is not maintainable against the MEPCO in circumstances."

(II) That, the petitioner being officer of company does not come within the definition of public funcationares and where employees are not being governed under the statutory safeguard and department has not statutory rules to regulate conditions of the services of the employees cannot file a writ petition under Article 199 of the Constitution as rule of `Master and Servant' would apply.

(III) That, factual controversies are herein involved which cannot be resolved by resorting the Constitutional jurisdiction."

1. As regards objections (I) & (II), both are in fact inter-linked, thus are being taken up for decision together. It is specific stance of the writ petitioner (Para-6 of the writ petition is referred) that he was initially inducted in service with WAPDA and his services were regulated by statutory rules i.e. Efficiency and Discipline Rules, 1978. Although after reshape the WAPDA was further divided in different companies and the MEPCO is one of them and the petitioner is now under the service of MEPCO, but the fact remains that till today the MEPCO is following the same statutory Rules as formulated by WAPDA, therefore, the petitioner would be governed by the said rules. Another aspect of the matter is that when an employee joins the service under certain rules, subsequently, the rules which are less beneficial to such employee cannot be made applicable against him. Even otherwise, in the light of judgment of the Hon'ble Supreme Court of Pakistan in the case "Zarai Taraqiati Bank Limited and others versus Said Rehman and others" (2013 SCMR 642) and "Masood Ahmed Bhatti and others versus Federation of Pakistan through Secretary, M/O. Information Technology and Telecommunication and others" (2012 SCMR 152), the principle of "master and servant" would not apply, therefore, the objection to this extent is overruled.

2. Now, dealing up with objection (III) with regard to involvement of factual controversy, there is no cavil to the proposition that writ petition is not maintainable where factual controversy is involved, but here in this writ petition, both the parties are in agreement on the question of facts regarding status of the petitioner, his length of service his initial induction in WAPDA and then his adjustment in MEPCO. The only question involved in this writ petition is whether punishment of "CENSURE" can be considered as stigma on the service career of an employee and further whether on the basis of "Censure" 1.5 marks can be deducted from the total tally of an employee, therefore, the assessment of above questions only requires legal determination and no question of factual controversy being involved, the instant petition is hold to be fully competent and maintainable.

3. Coming to the merits, the question with regard to effect of a penalty of "censure" came under consideration before the Hon'ble Supreme Court of Pakistan in the case "Abdul Majeed Ex.A. Xen (B&R), E-in-C's Branch, GHO, Rawalpindi (PLJ 2006 SC 1429), and the august Court in categorical terms held that "Censure was minor penalty of the sort of warning which might not have a serious stigma effecting the service career of a person". Thereafter, the same point came under judicial scrutiny before the apex Court and the Hon'ble Supreme Court of Pakistan in Human Rights Case No. 5/2009 in the order dated 07.04.2009 with reference to the above judgment (PLJ 2006 SC 1429) concurred that "Censure is not a serious stigma debarring a person/employee to enjoy future professional career". The Hon'ble Supreme Court of Pakistan also directed its Registrar to deliver the copy of the said order to Auditor General of Pakistan, Secretary Establishment Division, Islamabad, Secretaries to the Government of Pakistan., Accountant General Pakistan Revenues and Chief Secretaries of all the Provinces for strict compliance of the observations. Lastly, with reference to the Promotion Policy criteria, the question about effect of punishment of "censure" on promotion prospects of an employee of PEPCO, was adjudicated by Peshawar High Court in the case "MUNSIF SHAH versus PEPCO through Managing Director, Lahore and 4 others" (2013 PLC (CS) 223), and it was held that censure being minor penalty, was not a hurdle in the way of promotion of employee.

4. Under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, "Any decision of the Supreme Court shall, to the extent that it decides question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan." Furthermore, under Article 190 of the Constitution "All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court," With reference to the above Articles, this Court in the case reported in PLD 2006 Lahore 332, has held that "not only the parties, but all the functionaries in view of Articles 189 and 190 of the Constitution, are bound by the judgment of the Supreme Court which has to be kept in view and action in that respect should be in conformity with the same. No deviation whatsoever therefrom can be made by anyone. Statutory functionaries (the official respondents) while carrying about their statutory functions will act strictly in accordance with the judgment of the Supreme Court and implement the same faithfully." In another ease reported in PLD 2004 Lahore 815, it was held by this Court that all organs of the state are under the statutory duly to act in aid of the law declared by the Supreme Court and not to flout the same. Right declared under judgment of Supreme Court cannot be overridden or nullified by an executive order, a rule or a dispensation short of legislative will.

5. In view of the above discussion, in the light of decision of the Hon'ble Supreme Court of Pakistan in the case "Abdul Majeed, Ex.A. Xen (B&R), E-in-C's Branch, GHQ, Rawalpindi" (PLJ 2006 SC 1429), and the judgment dated 07.04.2009 passed in Human Rights Case No. 5/2009, hardly there remains any doubt that "Censure" is not to be considered a stigma to debar a person/employee to enjoy future professional career and to contest for his promotion. Furthermore, the binding effect of Supreme Court orders is also unquestionable in terms of Article 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973, and this Court being custodian of the Constitution is obliged to ensure meticulous compliance of the Supreme Court orders. In the same terms, Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 mandates every individual to be dealt with in accordance with law, and according to Salmond, the "Law" means body of principles recognized and applied by the State in the administration of justice. The law therefore, is not confined to only statute law. Personal law and custom, to the extent they are recognized by the Courts, are laws. Even the judicial principles which are laid down by the Superior Courts from time to time are laws as it is binding on the lower Courts to follow them. Law is not the will of a sovereign. It is the body of principles recognized and applied by the State in the administration of justice as rules recognized and acted upon by the Courts of justice. Consequently, the practice of respondent/MEPCO in deducting 1.5 marks on the basis of punishment of "Censure" from the credit of its employee at the time of considering his case for promotion, is totally illegal and flagrant deviation from the above referred judgments of the Hon'ble Supreme. Court of Pakistan, thus this practice also infringes Article 8 of the Constitution of Islamic Republic of Pakistan, 1973. Consequently, the instant writ petition is allowed and the respondent/MEPCO authorities are directed not to deduct 1.5 marks/points from the total tally of its employee on the excuse of penalty of "censure" while considering his case for promotion.

(R.A.) Petition allowed

PLJ 2014 Lahore 161 [Multan Bench Multan]

Present: Muhammad Qasim Khan, J.

MUHAMMAD JAVED TARIQ--Petitioner

versus

STATION HOUSE OFFICER POLICE STATION FAREED TOWN SAHIWAL and 2 others--Respondents

W.P. No. 10002 of 2012, decided on 10.6.2013.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898) Ss. 22-A & 155(c)--Constitutional Petition--Direction of ex-officio justice of peace to register case was sought to be quashed--Non-cognizable offence neither could be registered nor investigated without permission of Magistrate--Validity--If police officers are guilty of any willful breach or neglect of any provision of law or any rule or regulation or any order, which he is bound to observe or obey is a cognizable offence and a direction for registration of case could be issued against delinquent official--Petition was dismissed. [Pp. 164 & 165] A & B

Mr. Khawar Siddique Sahi, Advocate for Petitioner.

Mr. Mubashir Latif Gill, Assistant Advocate General for Respondent.

Haji Muhammad Tariq Aziz, Advocate for Respondent/ Complainant.

Date of hearing: 10.6.2013.

Order

Briefly the facts leading to the filing of instant writ petition are that Respondent No. 3 Farhat Ali got lodged an FIR No. 28/2012 dated 13.01.2012 under Sections 392/397, PPC at police station Farced Town, Sahiwal and as the petitioner was posted at the said police station, the investigation of the said case was entrusted to him. Afterwards, the Respondent No. 3/complainant filed an application under Section 22-A, Cr.P.C. before the learned Ex-officio Justice of Peace to the effect that petitioner being the Investigating Officer misused his authority, prepared a fake application on behalf of the complainant/Respondent No. 3 and arrested one Imran who had no concern with the FIR, nor the Respondent No. 3 had ever nominated said Imran as his accused. On receipt of application under Section 22-A, Cr.P.C., the learned Ex-officio Justice of Peace vide order dated 22.05.2012 directed the District Police Officer to register a case under Article 155(c) of the Police Order, 2002, as a result whereof, an FIR No. 293/2012 under Article 155(c) of the Police Order, 2002 has been registered against the petitioner at police station Fareed Town, Sahiwal.

1. Through the instant writ petition the FIR No. 293/2012 registered pursuant to the direction of learned Ex-officio Justice of Peace, is sought to be quashed, mainly on the ground that offence under Article 155(c) of the Police Officer is non-cognizable, therefore, neither the same could be registered nor investigated without permission of the Magistrate. In support of his arguments, the learned counsel for the petitioner placed reliance on the case "Muhammad Shafi versus S.H.O. and others" (2012 Y.L.R 828), "Shahid Hussain and another versus Additional Sessions Judge, Taunsa Sharif Distt. D.G. Khan and others" (2011 Y.L.R 294) and "Khuda Bakhsh versus Additional Sessions Judge, D.G. Khan and 3 others" (2010 Y.L.R 2622).

2. The learned Law Officer assisted by learned counsel for the Complainant/Respondent No. 3 opposed this petition by arguing that offence under Article 155(c) of the Police Order, 2002 is a cognizable offence and furthermore, after registration of the FIR the same is under investigation, therefore, it would be inapt to interfere in the investigation domain of the investigating hierarchy.

3. I have heard the arguments of learned counsel for the parties and perused the file with their assistance.

4. As shall be seen from the above narration of facts, the moot point in this case is "whether an offence under Article 155(c) of the Police Order, 2002 is cognizable or non-cognizable?" The word "cognizable" has not been defined in the Police Order, 2002 and the Code of Criminal Procedure, 1898 as procedural law is applicable to the penal provisions of Police Order, 2002 for the purposes of registration of cases, investigation and trial, etc.

5. The Code of Criminal Procedure, under Section 4(1) defines the word "cognizable" as an offence in which a police officer, may, in accordance with second schedule or under any law for the time being in force, arrest the accused without warrant, and further Section 4(n) of the Code, ibid, defines the word "non-cognizable" as an offence for which a police officer may not arrest the accused without warrant of arrest. Schedule-II is in tabular form, firstly it deals with, PPC and at the end of this schedule there is separate heading "OFFENCES AGAINST OTHER LAWS". When this part of the schedule is read with Section 4(f) of the, Cr.P.C., it makes clear that all offence under other laws are cognizable, if punishable with imprisonment for three years and upwards. However, its only exception is the relevant statute itself as the statute could define which offences are cognizable and bailable and which offences are non-cognizable and non-bailable. If with regard to some of the offence the statute is itself silent, then relevant part of Schedule-II (offences against other laws) as mentioned in the, Cr.P.C. shall hold the field.

6. Article 153 of the Police Order, 2002 only refers to certain offences which have been specified to be cognizable. Said Article 153 of the Police Order, 2002 reads as under:

"153. Certain offences to be cognizable.--Notwithstanding anything contained in the Code, offences falling under Articles 148 to 152 shall be cognizable."

While interpreting a Statute, no meaning other than those mentioned in the statute itself, can be derived, as the words of a statute are to be read in its original text, no addition, alternation or deletion can be made. The above reproduced Article, declares some of the offences covered under Articles 148 to 152 of the Police Order, 2002 as "cognizable", and by bare reading of this section, it appears that the offences declared as "cognizable" by Article 153 of the Police Order, 2002 mostly carry short sentences. As there is no mention in Article 153, ibid, that rest of the offences under Police Order, 2002 are non-cognizable", the sentence under Article 155 of the Police Order, 2002 entail punishment which may extend to three years, therefore, by applicability of the Code of Criminal Procedure, when Section 4(f), Cr.P.C. is read with its Schedule-II, the offence under Section 155, Cr.P.C. shall be considered as "cognizable", as when the statute itself is silent in this respect, therefore, relevant part of Schedule-II (Offences Against other laws) as mentioned in the Cr.P.C. shall fully attract. In this context relevant portion from a Division Bench judgment of the Karachi High Court in the case "Naseem Akhtar Khan versus District and Sessions Judge" (PLD 2005 Karachi 285), is reproduced as under:--

"Finally learned counsel further argued that an offence under Article 155 of the 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 does not 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."

On the same point, a Division Bench of the Peshawar High Court in the case "Haji Rehman SHO and 3 others versus Provincial Police Officer, Government Of Khyber Pakhtunkhwa, Peshawar and 5 others" (2012 P.Cr.L.J 1526), declared that Schedule-II of, Cr.P.C. under the heading, "Offences Against Other Laws" provided that police officer could arrest the accused without warrant in an offence, which was punishable with imprisonment for three years or upward and such offence had also been made non-bailable. As no such exception had been provided in, Cr.P.C. or Police Order, 2002 for an offence punishable under Art. 155 of said Order, therefore, on the above analogy offence under Section 155, Cr.P.C. was declared as "cognizable" offence. Furthermore, a Full Bench judgment of this case in the case "Khizar Hayat vs. Inspector-General of Police (Punjab) Lahore" (PLD 2005 LAHORE 470), wherein, following observations were made:--

"Upon a complaint received by him regarding non-compliance of his earlier direction on ex-officio Justice of the Peace can issue a direction to the relevant police authority to register a criminal case against the delinquent police officer under Article 155(c) of the Police Order, 2002."

In view of the above reproduced extract from the Full Bench judgment, it has been settled once for all that if police officers are guilty of any willful breach or neglect of any provision of law or any rule or regulation or any order, which he is bound to observe or obey, is a "cognizable offence" and a direction for registration of case could be issued against the delinquent official. In the presence of judgment of the Full Bench of this Court, perhaps at the time when the judgments referred by learned counsel for the petitioner were delivered, proper assistance was not rendered to the Court. Even otherwise, it is settled position of law that the judgment of a Division and that of the Full Bench have to be followed by the Single Bench. In this view of the matter, I see no force in the contention of learned counsel for the petitioner that offence under Article 155(c) of Police Order, 2002 is "non-cognizable". This writ petition, therefore fails and is accordingly dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 165 (DB)

Present: Mrs. Ayesha A. Malik and Abid Aziz Sheikh, JJ.

BANK OF PUNJAB--Petitioner

versus

INTERNATIONAL CERAMICS LTD. etc.--Respondents

W.P. No. 5864 of 2013, decided on 29.6.2013.

Financial Institution (Recovery of Finance) Ordinance, 2001 (XLV of 2001)--

----Ss. 9 & 10--Constitution of Pakistan, 1973 Art. 199--Constitutional petition--Suit for recovery--Unconditional leave was granted--Remedy of appeal, review or revision against an order, leave was granted--Question of--Whether constitutional petition is maintainable by an order granting or rejecting leave--Right to file an application for leave to defend--Validity--Constitutional petition would be maintainable in exceptional circumstances, where petitioner could show a blatant illegality in order, such that Banking Court had not followed expressed mandate of law or that Banking Court had exercised its powers outside jurisdiction--In such a situation in order to meet the ends of justice and to prevent a gross miscarriage of justice a constitutional petition would be maintainable--Whether evidence needs to be recorded in order to settle dispute between the parties--Order granting leave merely gives defendant an opportunity to lead evidence to defend its case--As such no right of plaintiff is prejudices--Entries relied upon did not provide sufficient data to show that disbursement and utilization of finance had been made by respondent--There is no illegality with order in-question and it does not fall within ambit of exception--Petition was dismissed. [Pp. 169 & 170] B, D & E

Financial Institution (Recovery of Finance) Ordinance, 2001 (XLV of 2001)--

----S. 22--Appeal--Unconditional leave was granted--Challenge to--In such a situation filing of constitutional petition against the order granting or rejecting leave would defeat objective of FIO, especially S. 22 of Ordinance. [P. 168] A

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

----O. VI, R. 17--Financial Institution (Recovery of Finance) Ordinance, (XLV of 2001), S. 9--Application for filing an amended plaint--Validity--Filing of application u/Order 6 Rule 17, CPC to amend plaint and further document the plaint itself suggests that leave should be granted as petitioner had failed to satisfy its burden u/S. 9 of FIO. [P. 169] C

Mr. Muhammad Ahmad Pansota, Advocate for Petitioner.

Date of hearing: 29.6.2013.

Order

Through this petition the Petitioner has impugned order dated 14.02.2013, passed by the learned Single Judge in Chamber. The impugned order has been passed Under Section 10 of the Financial Institution (Recovery of Finances) Ordinance, 2001 (FIO) and is a leave granting order.

1. The facts of the case are that the petitioner filed a suit under Section 9 of the FIO for the recovery of Rs. 71457523/- from the Respondents. The Respondents No. 1 to 4 filed an application for grant of leave to appear under Section 10 of the FIO. The Petitioner then filed its replication. Learned Single Judge in Chamber while exercising jurisdiction under the FIO granted unconditional leave to the Respondents No. 1 to 4 through his order dated 14.2.2013.

2. Learned counsel for the Petitioner argued that the Impugned Order has been passed by the learned Judge in Chamber in complete disregard of an unreported order issued on 6.2.2013 by a Division Bench of this Court. He also argued that there was no lawful justification to grant leave to the respondents on account of non-availability of the statement of the CD account. Learned counsel for the petitioner was asked at the very outset how this petition was maintainable given that Section 22 of the FIO specifically bars the filing of an appeal, review or revision against an order which grants leave or rejects leave. Learned counsel argued that Section 22(6) of the FIO expressly bars filing of an appeal, review or revision against the order accepting or rejecting an application for leave to defend. In such a situation a writ petition would be maintainable if the order is illegal or without jurisdiction as no other remedy was available to the petitioner. Learned counsel has placed reliance on Sheikh Abdul Sattar Lasi and another vs. Judge Banking Court (2007 CLD 69), Messrs United Bank Ltd. through Authorized Attorneys vs. Banking Court No. II and 2 others (2012 CLD 1556), United Bank Ltd vs. Presiding Officer, Banking Court No. 2, Karachi and 6 others (2011 CLD 931) and Agricultural Development Bank of Pakistan and other vs. Yar Muhammad and others (2004 CLD 1084).

3. Arguments heard. Record perused.

4. The order impugned before us is an order which grants unconditional leave to the respondents. Section 22(i) of the FIO provides as follows:--

"22. Appeal--(1) Subject to subs-section (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentenced or final order prefer an appeal to the High Court".

Section 22 (6) provides as follows:

"(6) No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under sub-section (11) of Section 15 or sub-section (7) of Section 19".

A bare reading of Section 22(1) and (6) shows that no appeal, review of revision lies against an order which accepts or rejects an application for leave to defend. Therefore, the FIO has explicitly barred the remedy of appeal, review or revision against such an order. The question that arises is whether in such a situation a constitutional petition is maintainable by a person aggrieved by an order granting or rejecting leave. Section 10 of the FIO provides for the right to file an application for leave to defend. In terms of Section 10(3) an application for leave to defend is in the form of a written statement and contain a summary of the substantial questions of law and fact for which evidence needs to be recorded. In the event that leave is granted under Section 10(10) of the FIO the Court shall fix a date for recording of evidence. In the event that leave is not granted Section 10(11) of the FIO provides that a decree should be passed in favour of the Plaintiff against the Defendant. Therefore, the FIO contemplates expeditious decisions on matters relating to Financial Institution. The intent can be seen in Section 13 of the FIO which provides that in a suit where leave is granted the case should be disposed of within 90 days. Hence, Section 22 prevents appeal review or revision of an order granting or rejecting leave, so that cases can be decided as soon as possible once the stage of considering the PLA is over. In such a situation filing of a constitutional petition against the order granting or rejecting leave would defeat the objective of the FIO, especially Section 22. It has been held in case titled Messrs Sajid Brothers and Co. through Proprietor and 2 others vs. Manager, Allied Bank Limited and 8 others (2012 CLD) 1858) that:

"In the present case, the Banking Court has decided the application for leave to defend the suit of Respondents Nos. 5 and 6 in doing so has struck off the names of these respondents from the list of Defendants. Against such order the appeal is expressly barred by law and thus there is no warrant for entertaining a constitutional petition as it will not only amount to circumvention the law but will also frustrate the same. Yet again, the impugned order is passed by a Judge of this Court which is not a person in terms of Article 199(5) of the Constitution, for this reason also constitutional petition will not be maintained. The petition, being not maintainable, is therefore, dismissed".

Therefore, we hold that the general rule is that no constitutional petition would lie against an order granting or rejecting leave.

1. The learned counsel for the petitioner has placed reliance on 2012 CLD 1556 (supra). In the said case a constitutional petition was filed against the order in which the leave was denied. The Hon'ble Court held that after dismissal of the application for grant of leave to defend the law envisages that the suit should be decreed forthwith, therefore, at the stage when only a decree can be passed in a suit an order for consolidation of the suit with any other suit in which evidence is to be recorded defeats the object of Section 10(11) of the FIO. The order of consolidation shall also have the effect of nullifying the order whereby the application for leave to defend the suit was dismissed. Since the impugned order passed by the Banking Court has violated Section 10(11) of the FIO, the impugned order was found not sustainable in law and liable to be set aside. The Hon'ble Court held that a constitutional petition is maintainable on the ground that the Banking Court failed to exercise the jurisdiction which was vested to it under Section 10(11) of the FIO. Learned counsel has also relied upon 2011 CLD 1571 (supra). In the said case leave was also not granted. The Hon'ble Court held that constitutional jurisdiction could be invoked against such an order to correct a wrong in a case where no other remedy was available. In 2007 CLD 69 (supra) it was held that in cases of grave violation in following the substantive provision of law an order rejecting or granting leave could be challenged in a constitutional petition.

2. We have reviewed the cases cited by the learned counsel for the petitioner and find that the common ground in all the cited cases is one of illegality or lack of jurisdiction. To our minds these cases represent the exception to the general rule being that no constitutional petition would lie against an order granting or rejecting leave. We are of the opinion that a constitutional petition would be maintainable in exceptional circumstances, where the petitioner could show a blatant illegality in the order, such that the Banking Court has not followed the expressed mandate of law or that the Banking Court has exercised its powers outside the jurisdiction conferred. In such a situation in order to meet the ends of justice and to prevent a gross miscarriage of justice a constitutional petition would be maintainable.

3. In the instant case the learned Judge in Chamber found that the debt entries to the Defendant's account did not disclose the cheque numbers and did not disclose the account which was credited. Further more that the statement of the current account from where the withdrawal was said to have taken was not available on the record. During the course of the proceedings the plaintiff sought permission to place on record the statement of account of the Defendant No. 1 through an application under Order VI, Rule 17, CPC. The learned Judge in Chamber held that since the relevant documents were not available on the record and since the plaintiff wanted to file its statement of account a case of unconditional leave to defend was made out. We have heard the learned counsel for the petitioner at length and we are of the opinion that he was unable to point out any illegality with the impugned order. We note that the petitioner had moved an application under Order VI, Rule 17, CPC for filing an amended plaint. Through the said application the petitioner wanted to place further documents with his plaint. We find that the filing of the application under Order VI, Rule 17, CPC to amend the plaint and further document the plaint itself suggests that leave should be granted as the petitioner has failed to satisfy its burden under Section 9 of the FIO.

4. The other argument stressed by the learned counsel was that the impugned order is in absolute disregard of an order of the Division Bench on the issue of CD account statement. We note that leave has been granted for several reasons in the impugned order. In any event each case has to be seen on its own merits and the grant of leave under Section 10(8) is based upon the substantial questions raised by the Defendants viz-a-viz the case and documents filed by the Plaintiff with the plaint. Section 9 of the FIO places heavy burden on the Financial Institution to file alongwith its plaint a statement of account and all other relevant documents relating to the grant of finance. Thereafter Section 10 provides that the Defendant shall file an application for leave to defend which shall be in the form of a written statement and which shall contain a summary of the substantial question of law as well as fact in respect of which evidence needs to be recorded. The application for leave to defend shall be accompanied by all documents which in the opinion of the Defendant support the substantial question of law and fact. The Plaintiff is given an opportunity to file a reply to the application for leave to defend. Therefore, in terms of Sections 9 and 10 of the FIO the plaintiff has to put across its best case and the Defendant has to place his entire case before the Court. The Court then has to satisfy itself, in the first instance, as to whether any substantial question of law and fact is in issue between the parties. This first look principle gives the Court an opportunity to form an opinion based on the documents filed before it, whether evidence needs to be recorded in order to settle the dispute between the parties. Therefore, an order granting leave merely gives the defendant an opportunity to lead evidence to defend its case. As such no right of the plaintiff is prejudiced. It simply means that plaintiff does not have an open and shut case on the basis of which a decree can be passed, and that the plaintiff will have to prove its claim through evidence.

5. In the case of the Petitioner the impugned order finds that the entries relied upon did not provide sufficient data to show that the disbursement and utilization of the finance had been made by the respondent. There is no illegality with this order and it does not fall within the ambit of the exceptions.

6. For the foregoing reasons, this petition is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2014 Lahore 170 [Multan Bench Multan]

Present: Ibad-ur-Rehman Lodhi, J.

MUHAMMAD ASLAM--Appellant

versus

GENERAL MANAGER PIONEER PAKISTAN SEED LTD., LAHORE and 4 others--Respondents

F.A.O. No. 89 and 69 of 2009, decided on 5.8.2013.

Punjab Consumer Protection Act, 2005 (II of 2005)--

----S. 33--Limitation Act, 1908--S. 5--Claim for recovery was accepted to extent of provisions of 250 bags of seed of maize--Challenge to--Condonation of delay in filing appeal--Decision of Consumer Court--Validity--Explanation extended by applicant in order to seek condonation of delay caused in filing of appeal does not appeal to sense and such plea has never been recognized as justification for condoning delay in filing of legal proceedings--Applicant had failed to justify delayed filing of appeal and application has no substance the same is dismissed. [P. 173] A

Punjab Consumer Protection Act, 2005 (II of 2005)--

----S. 28(3)--Claim for recovery was accepted to extent of provision of bags of seed of maize--Challenge to--Objection with regard to time barred claim preferred by claimant before Consumer Court--Validity--Claim was not maintainable in absence of any evidence as to issuance of notice and proof of its duly delivery by claimant to service provider required in view of Section 28(3) of Punjab Consumer Protection Act. [P. 173] B

Punjab Consumer Protection Act, 2005 (II of 2005)--

----S. 28(4)--Claim for recovery to extent of provisions of seed of maize, accepted--Challenge to--Vague terms, mentioned the issuance of notices, but neither any date of issuance of same has been provided in claim nor any proof of its due delivery has been provided--Although a copy of notice has been placed on record of Consumer Court but same is not worth consideration for reason that same carries no signature of the person issuing the same nor claimant has placed any material on record to show due delivery of the same which is a condition precedent for maintaining claim before Consumer Court--Starting point of period of limitation provided for filing of claim before Consumer Court is accrual of cause of action--Cause of action was accrued to claimant when crop was harvested the institution of claim before Consumer Court was beyond limitation--Where plaintiff claim some recovery in shape of finances, it always make incumbent upon claim to provide detailed break-up of required amount but in instant case, although a huge amount has been claimed but without any specific break-up of required amount Consumer Court has in fact not accepted request of claimant but has awarded the claim to extent of provision of seed of maize--Such claim was not proved on record by claimant--Even cases of civil nature for recovery of different amount to be filed in Courts of plenary jurisdiction and also claims as to tortuous acts of a adversaries the people had started to rush to Consumer Court and as a result of summary procedure. [Pp. 173, 174 & 175] C, D, E, F & G

Punjab Consumer Protection Act, 2005 (II of 2005)--

----S. 30--Amendment of--Power to Consumer Court--Procedure of Consumer Court--Procedure to be adopted by Consumer Court do indicate production of evidence but neither concept of framing of issues on basis of divergent pleadings of parties nor specific procedure for recording of evidence has been provided with regard to proceeding of evidence--Statute of Act be amended by inserting provision, enabling Consumer Court to frame issues on basis of divergent pleadings of parties and to provide opportunity to parties to produce evidence on issues and then to decide same after giving issue wise findings--High Court can direct province to initiate appropriate legislative measures to make necessary amendments in portion of statute--Province of Punjab was directed to make amendments in order to provide power to Consumer Court to frame issue from divergent pleadings of the parties to record evidence on such issue then to give issue wise findings of material available before it. [Pp. 175 & 176] H, I & J

Mian Ahmad Mahmood, Advocate for Appellant.

Barrister Rafey Altaf, Advocate for Respondents.

Date of hearing: 24.6.2013.

Judgment

By means of this judgment I intend to dispose of FAO No. 89/2009 and FAO No. 69/2009, as both arises out of one impugned order dated 08.07.2009 passed by the learned Presiding Officer, District Consumer Court, Sahiwal whereby the claim of Muhammad Aslam for recovery of Rs. 2,50,00,000/- was accepted to the extent of provisions of 250 bags of seed of maize to said claimant.

1. Both the sides feeling themselves aggrieved of the said findings filed separate appeals, I would first take up FAO No. 89/2009 for the reasons that the same was filed beyond limitation and alongwith the memo of appeal CM.No. 1-C/2009 was also filed, seeking condonation of delay in filing the instant appeal.

In the application under Section 5 of Limitation Act, the applicant/appellant has admitted that the appeal was filed beyond limitation provided in this regard. The reason as has been expressed in the Civil Miscellaneous is that the respondent-Pioneer Pakistan Seed Limited, after the decision of the Consumer Court, approached the applicant/appellant for some settlement and promised that the appellant shall be compensated by providing 250 bags of seed of maize and thus deceived the applicant/appellant and let the limitation period expired and for that reason the appeal was filed on behalf of the claimant Muhammad Aslam beyond limitation.

1. I am afraid, the explanation extended by the applicant/ appellant in order to seek condonation of delay caused in filing of appeal does not appeal to sense and such plea has never been recognized as a justification for condoning the delay in filing of some legal proceedings. The applicant has failed to justify the delayed filing of appeal and the application i.e. C.M.No. 1-C/2009 has no substance, the same is therefore dismissed.

2. Since the delay caused in filing of FAO No. 89/2009 has not been condoned, resultantly the said appeal is dismissed.

3. Now comes to the other appeal viz. FAO No. 69/2009 filed by the Pioneer Pakistan Seed Limited, etc. There is an objection with regard to a time barred claim preferred by claimant before the Consumer Court and also to the effect that the same was not maintainable in absence of any evidence as to the issuance of notice and the proof of its duly delivery by the claimant to the respondent-service provider required in view of Section 28(3) of the Punjab Consumer Protection Act, 2005.

Vide para 4 of the claim, the claimant has, in a vague terms, mentioned the issuance of some notices, but neither any date of issuance of the same has been provided in the claim nor any proof of its due delivery has been provided. Alongwith the claim, a copy of notice although has been placed on the record of the Consumer Court but the same is not worth consideration for the reason that the same carries no signature of the person issuing the same nor the claimant has placed any material on record to show the due delivery of the same which is a condition precedent for maintaining a claim before the Consumer Court.

1. In view of Section 28(4) of the Punjab Consumer Protection Act, 2005, a claim by a consumer has to be filed within 30-days of arising cause of action. In this case, according to the version of the claimant himself, the seed of maize was purchased on 11.12.2007 and the seed was used in the month of June, 2008 but the claim was instituted before the Consumer Court on 07.10.2008 and the notice shown to have been issued only on 21.09.2008. The starting point of period of limitation provided for filing of claim before the Consumer Court is the accrual of cause of action and if in particular background of this case, the cause of action was accrued to the claimant in the month of June, 2008 when the crop was harvested, the institution of the claim before the Consumer Court was in any case beyond limitation.

2. On merits, it is admitted position that the seed was never purchased directly through the company i.e. Pioneer Pakistan Seed Limited, rather it was purchased from Respondent No. 2, a Dealer, deals in sale of the seeds in open market. According to law, on the subject without any certificate issued by Federal Seed Certification and Administration Department (under the Federal Government) certifying the quality of seed, no seed can be launched in the market. The claimant has nowhere raised his plea as to whether the seed purchased by the claimant was not certified under such process.

Admittedly, 250 bags of maize seed were purchased by the claimant from Respondent No. 2 and out of the same, 248 bags were consumed and used by the claimant and subsequently challenged the quality of whole of the purchased lot only by producing two bags and that too without any proper seal over the same, thus it was not certain that either the said bags contained the seed were in fact originally filled by the company or after de-sealing the same by the claimant, those were refilled by some substandard seeds by the claimant to create a circumstance to justify the claim. The claimant has also miserably failed to bring any convincing evidence on record to show that the seed in the sealed bags of the company was in fact substandard one. Merely by saying of the claimant it cannot be presumed that the quality of seed was not up to the mark for the reason that the claimant is not an expert in the relevant field.

1. The appellants in their written statement have highlighted numerous reasons for less production e.g. poor or inadequate fertilizer, no timely plant protection measure, uneven land used for cultivation, retorted plant growth, no proper and timely watering and unfavourable weather conditions. Once such specific pleas were taken it was incumbent upon the claimant to put his own stance in reaction thereof but these reservations expressed by the appellant-Company were never responded to in some satisfactory manner.

2. There is another angle to be considered. In ordinary suits where the plaintiff claim some recovery in shape of the finances, it always make incumbent upon such claimant/plaintiff to provide detailed breakup of the required amount but in the present case although an huge amount of Rs. 2,50,00,000/- has been claimed but without any specific breakup of the said required amount. The Consumer Court has in fact not accepted the request of the claimant for recovery of Rs. 2,50,00,000/- but has awarded the claim to the extent of the provision of 250 bags of seed of maize. Such claim was not proved on record by the claimant. There is no report on the record as to what was the result of growing of seed of maize consisting of 248 bags and without any convincing evidence having negative impact even for such 248 bags, no adverse inference can be drawn against the appellants. The result is that the claim as has been placed by the claimant before the learned Consumer Court was beyond limitation as provided in Section 28 of the Punjab Consumer Protection Act, 2005 and also is not maintainable in absence of a mandatory notice delivery of which is to be proved beyond any shadow of doubt and also on merits, therefore, FAO No. 69/2009 is allowed and the impugned order passed on 08.07.2009 by the learned Presiding Officer, District Consumer Court, Sahiwal is set aside.

3. Before parting with this judgment, I would like to observe that not only with regard to the claims to be preferred before the Consumer Courts, constituted under the Punjab Consumer Protection Act, 2005 but also keeping in view the increasing tendency in the concerned circles to the effect that even the cases of civil nature for recovery of different amount to be filed in the Courts of plenary jurisdiction and also the claims as to tortuous acts of the adversaries the people have started to rush to the Consumer Courts and as a result of summary procedure, they are getting favourable results. Although Section 30 of the Punjab Consumer Protection Act, 2005 which provides procedure to be adopted by the Consumer Court do indicate the production of evidence but neither the concept of framing of issues on the basis of divergent pleadings of the parties nor specific procedure for recording of evidence has been provided with regard to the proceedings to be taken by the Consumer Court. It is high time that the statute viz. Punjab Consumer Protection Act, 2005 Act-II (2005) be suitably amended by inserting the provisions in Section 30 thereof, enabling the Consumer Court to frame issues on the basis of divergent pleadings of the parties and to provide ample opportunity to the parties concerned to produce their evidence on the issues and then to decide the same after giving issue wise findings after consideration of the evidence available on record. This Court can direct the Province of Punjab to initiate appropriate administrative/legislative measure within a certain period to make necessary amendments in the relevant portion of the statute as indicated herein above.

I am fortified in issuing such direction by an authoritative judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Al-Jehad Trust through Habibul Wahab Al-Khairi Advocate and 9 others versus Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others (1999 SCMR 1379) and Province of Punjab is thus directed to initiate appropriate administrative/legislative measure within a period of next 6-months to make necessary amendments particularly in Section 30 of the Punjab Consumer Protection Act, 2005 in order to provide a power to Consumer Court to frame issues from the divergent pleadings of the parties and also to record evidence of the parties on such issues and then to give issue wise findings on such material available before it.

(R.A.) Order accordingly

PLJ 2014 Lahore 176

Present: Abdus Sattar Asghar, J.

ATHAR ALI--Petitioner

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, etc.--Respondents

W.P. No. 23243 of 2009, decided on 25.9.2013.

Industrial Relations Ordinance, 1969--

----Ss. 2(xxviii) & 25-A--W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, S. 2(i)--Constitution of Pakistan, 1973, Art. 199--Constitutional jurisdiction--Appointment in managerial staff and was not a workman--Perform neither manual nor clerical duties--Jurisdiction of Labour Court--Validity--A workman may lodge his grievance in respect of any right guaranteed or secured to him by or under any law to notice of employer in writing within prescribed time--Grievance is not redressed by employer the workman may take grievance to labour Court which shall give decision as such matter was industrial dispute--Such duties did not fall within ambit of skilled or unskilled and manual or clerical therefore, he did not belong to category of workers defined as workman--Employees designated as manager entrusted duties of sales promotion are expected to utilize their mental agilities and abilities with quality and intelligent initiatives to explore new horizons of sales promotion, therefore, due to nature of their duties being altogether distinct and distinguishable from manual or clerical work they do not fall within definition of workman--Petition was dismissed. [P. 180] A, B & C

PLD 1975 Kar. 279, 2005 SCMR 1049, PLD 1961 SC 403, ref.

Mr. Asmat Kamal Khan, Advocate for Petitioner.

Date of hearing: 25.9.2013.

Order

Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Islamic Republic of Pakistan, 1973 to impugn the order dated 27.10.2009 passed by learned Punjab Labour Appellate Tribunal Lahore.

1. Succinctly facts leading to this constitutional petition are that petitioner was appointed as Territory Manager Pharmaceutical Business in ICI Pakistan Lahore on 31.5.1999 as member of the management staff on regular basis. Vide letter dated 29.3.2002 issued by the Human Resource Manager, PCA Business ICI Pakistan Ltd. through TCS petitioner was intimated that his resignation has been accepted by the Executive. Being aggrieved of the same after serving a formal grievance notice to Respondent No. 2, the petitioner filed a grievance petition before the learned Labour Court Lahore asserting that he had never tendered any resignation rather on 28.3.2002 he was summoned by the Business Manager who informed him that his services have been terminated and was required to tender his resignation but he refused and thereafter the impugned letter dated 29.3.2002 was issued on the basis of some forged and fake document of resignation. Respondent-Company resisted the grievance petition inter-alia contending that petitioner was appointed in the managerial staff and was not a workman; that he had to perform neither manual nor clerical duties rather his job was to promote the sales of pharmaceutical products of the Company; that during employment he has been availing various benefits provided to the managerial staff of the Company including car loan etc. and voluntarily became a member of the Management Staff Provident Fund arid had been availing benefits therefrom. On facts it was contended that petitioner resigned at his own accord and freewill on 28.3.2002 which was accepted in due course vide impugned letter dated 29.3.2002. Learned Labour Court Lahore vide order dated 17.3.2003 declared the petitioner as a workman and allowed his grievance petition with full back benefits. Respondent-Company being dissatisfied assailed the said judgment through appeal before the Punjab Labour Appellate Tribunal (PLAT) Lahore. The appeal was accepted and the order of the learned Labour Court dated 17.3.2003 was set aside vide judgment dated 27.10.2009, impugned through this constitutional petition.

2. It is argued by learned counsel for the petitioner that learned PLAT in the impugned judgment erred in law while declaring the petitioner as not workman' and for this reason formulating the opinion that learned Labour Court had no jurisdiction to entertain his grievance petition; that the petitioner falls within the definition ofworkman' provided in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968; that Section 12(3) of the Standing Orders Ordinance provides right to the petitioner to seek redressal of his grievance while having recourse to the procedure under Section 25-A of the Ordinance ibid by invoking jurisdiction of the Labour Court; that the impugned judgment dated 27.10.2009 passed by learned PLAT on wrong premises of law and facts being untenable is liable to set aside; that petitioner has no other remedy except to invoke the constitutional jurisdiction of this Court in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Places reliance upon Mustehkum Cement Ltd. through Managing Director vs. Abdul Rasheed and others (1998 SCMR 644).

3. Arguments heard. Record perused.

4. The term `workman' has been defined in Section 2(xxviii) of the Industrial Relations Ordinance, 1969 which reads as under:--

"Worker" and "workman" mean any person not failing within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and, for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person--

(a) who is employed mainly in managerial or administrative capacity; or

(b) who, being employed in a supervisory capacity, draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."

1. Bare perusal of the above quoted definition of workman' manifests that the termsworkman' and employer' are interlinked. The termemployer' has been defined in Section 2(viii) of the Ordinance ibid which reads below:--

"Employer", in relation to an establishment, means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes--

(a) an heir, successor or assign, as the case may be, of such person or body as aforesaid;

(b) any person responsible for the management, supervision and control of the establishment;

(c) in relation to an establishment run by or under the authority of any department of the Federal Government or Provincial Government, the authority appointed in this behalf or, where no authority is so appointed, the Head of the department;

(d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf, or where no officer is so appointed, the Chief Executive Officer of that authority;

Special Provision: For the purpose of distinction from the category of "workers" or "workmen", officers and employees of a department of the Federal Government or a Provincial Government or local authority who belong to the superior, managerial, secretarial, directorial; supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of "employers ";

(e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof."

1. Section 25-A of the Ordinance ibid provides that a workman may lodge his grievance in respect of any right guaranteed or secured to him by or under any law to the notice of the employer in writing within the prescribed time. In case the grievance is not redressed by the employer the workman may take his grievance to the Labour Court which shall give a decision as such matter was an industrial dispute.

2. It may be expedient to reproduce the provision of Section 2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which provides the definition of `workman' as follows:--

"workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."

1. Section 12(3) of the Standing Orders Ordinance provides as under:--

"The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which, shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of Section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."

1. Above quoted two definitions of `workman' one provided in the Ordinance ibid and the other provide in the Standing Orders Ordinance are distinct to some extent, however as to the question whether a person is or is not a workman, it is well settled by law that the same would depend not upon his designation but on the nature of duties mainly performed by him.

2. In this case petitioner was appointed as Territory Manger in the managerial staff. Admittedly his main job was to promote the sales of pharmaceutical products of the respondent-Company. During cross-examination petitioner categorically admitted that "it is correct that my duty was to convince the doctors to prescribe medicines of my Company". It is also in the evidence that petitioner had no nexus with direct sale of the pharmaceutical products of the respondent-Company but his job was the ethical promotion of the sales i.e. meetings with doctors and apprising them about merits of the pharmaceutical products. It therefore makes crystal clear that such duties did not fall within the ambit of skilled or unskilled, and manual or clerical therefore he did not belong to the category of workers defined as workman in either of the above quoted two definitions.

3. Employees designated as Managers or Officers entrusted the duties of sales promotion are expected to utilize their mental agilities and abilities with a quality and intelligent initiatives to explore new horizons of sales promotion therefore due to the nature of their duties being altogether distinct and distinguishable from manual or clerical work they do not fall within the definition of `workman'. The similar proposition has already been dealt with in detail by Hon'ble Supreme Court of Pakistan in the case of: Pakistan Tobacco Company Ltd, vs. Pakistan Tobacco Company, Employees' Union, DACCA and two others (PLD 1961 SC 403) and Nisar Jamal Qureshi vs. Sindh Labour Appellate Tribunal and another (2005 SCMR 1049).

4. It may be expedient to reproduce hereunder relevant extracts from the case of Nasir Jamal Qureshi (supra):

"Admittedly in view of the material on record the petitioner was performing after his promotion from Area Sales Representative to Territory Representative at Karachi managerial duties and the documents referred by the learned counsel for the petitioner did not show that the petitioner was performing duties as a workman."

1. In another case titled I.E. Saleh vs. Messrs International Laboratories Ltd., Karachi and two others (PLD 1975 Karachi 279) it was observed as under:--

"It would thus seem that a salesman, for the nature of duties he performs, for the independence of action which he obtains and for the initiative and imagination that he exercises, is not doing for the inferior work which is normally called manual or clerical work. He may be doing some manual or clerical work in order to accomplish his functions but the predominant functions and duties of a salesman are of specialized nature designed to achieve the end of promoting sales, entering in competitive field with other producers and finding best available markets. Such type of labour cannot be called manual or clerical."

"In such view of the matter I am clear in my mind that a salesman employed in a commercial concern cannot be termed to be a `workman' as to have the protection of standing orders contained in the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and on such ground this petition fails and is hereby dismissed."

1. In view of the above legal position and evidence on record, learned Punjab Labour Appellate Tribunal was justified in accepting the appeal to reverse the findings of learned Labour Court which were neither based on evidence nor tenable. I do not find any jurisdictional error, factual or legal infirmity in the impugned judgment dated 27.10.2009 passed by learned Punjab Labour Appellate Tribunal. Petitioner has no case to invoke the constitutional jurisdiction of this Court.

2. For the above reasons this writ petition having no merits is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2014 Lahore 182

Present: Abdus Sattar Asghar, J.

SALEEMA BIBI through legal heirs etc.--Petitioners

versus

GOVT. OF PUNJAB, etc.--Respondents

C.R. No. 524 of 2003, heard on 21.3.2013.

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

----S. 115--Civil revision--Concurrent findings--Controversy of faith of deceased--Burden of proof--Janaza prayer of deceased was offered in sunni manner by Molvi--Deceased was sunni full time of his death and not shiya--No independent and reliable witness was produced to establish that deceased belonged to Shiya Sect--Validity--Mere fact of janaza prayer having been offered in sunni manner is no criterion for determination of sectarian belief--Question of--Whether deceased was shiya or sunni cannot be determined merely from sect to which his relative belong--Controversy regarding sect of a person cannot be determined by opinion of parties rather it can be inferred from facts creating presumption on one way or other--In civil cases once parties have advanced respective ocular and documentary account controversy is determined on basis of preponderance of evidence--Concurrent findings on controversy with regard to identity of sect of deceased are based on true appreciation of ocular account available on record and do not call for any interference by High Court invoking revisional jurisdiction--Revision was dismissed. [Pp. 185 & 186] A, B & C

PLD 1965 SC 134, PLD 1954 Lah. 480, rel.

Ms. Sadia Malik, Advocate for Petitioners.

Mr. Ali Raza and Mr. Noor-ul-Hasan, Advocates for Respondents No. 3 to 6.

Date of hearing: 21.3.2013.

Judgment

Through this Civil Revision under Section 115 of Code of Civil Procedure 1908 the petitioners impugn the judgment and decree dated 5.7.2001 passed by learned Civil Judge Sialkot whereby petitioners' suit for declaration, etc. was dismissed. It further assails the judgment and decree dated 02.1.2003 passed by learned Additional District Judge Sialkot whereby petitioners' appeal against the said judgment and decree was also dismissed.

1. Succinctly the facts leading to this petition are that Saleema Bibi Petitioner No. 1 (since died and represented by her daughters and Petitioners No. 2 to 5) lodged suit for declaration etc. alleging that Khadim Hussain husband of Saleema Bibi and father of Petitioners No. 2 to 5 belong to Shiya' sect therefore petitioners were entitled to inherit his property as legal heirs in accordance withFiqah-Jaffaria' and that Muhammad Hussain and Talib Hussain Respondents No. 6 and 7 have no concern whatsoever with the property of Khadim Hussain deceased. The suit was resisted by respondents with the contentions that Khadim Hussain was `Sunni' by faith and that inheritance mutation of Khadim Hussain deceased Bearing No. 606 dated 07.9.1994 was lawfully attested.

2. Pivotal issue with regard to controversy of faith of Khadim Hussain deceased was framed by the learned trial Court as under:--

"Issue No. 2.

Whether Khadim Hussain deceased was `Shiya' by faith? OPP"

Concurrent findings of both the learned Courts below on the said issue were against the petitioners.

1. It is argued by learned counsel for the petitioners that concurrent findings of learned Courts below are based on misreading and non-reading of the material evidence available on the record; that statement of Mian Muhammad Hussain (DW-2) has not received the consideration of learned Courts below; that the impugned judgments and decrees passed by learned Courts below based on mis-appreciation and non-appreciation of evidence against law and facts are liable to set aside.

2. It is resisted by learned counsel for the respondents with the contentions that learned Courts below have appreciated the parties evidence in a salutary manner while passing the impugned judgments and decrees with concurrent findings of facts and law and that the impugned judgments not suffering from any jurisdictional error, factual or legal infirmity does not call for any interference through invoking the revisional jurisdiction of this Court.

3. Arguments heard. Record perused.

4. Burden of proof regarding above quoted Issue No. 2 is upon the petitioners. To discharge the onus probandi Razia Bibi one of the petitioners appeared in the witness box as PW-1 and stated that her father belong to Fiqah-Jaffaria'. While facing cross-examination she admitted it correct thatJanaza' prayer of her father was offered in a Sunni' manner by Molvi Muhammad Hussain resident of the same village Marakewal. She admitted it correct that there are about 4/5Molvies' relating to Shiya' Sect residing in the said village. She denied that in-laws of her sister Rasheeda Bibi one of the petitioners also belong toSunni' Sect.

5. Petitioner's witness Alamdar Hussain (PW-2) deposed that he is Matwali' ofImam-Bargah' village Marakewal; that Khadim Hussain deceased belonged to Fiqah-Jafferia' and used to participate in theirMajlis' and had been paying Chanda'. While facing the cross-examination he admitted thatJanaza' of Khadim Hussain was offered by Muhammad Hussain who belong to Sunni' Sect. He also admitted it correct that Khadim Hussain usually used to offer his regular prayers inCharhdi Masjid Mohallah Goongian'. He also admitted that there is only one Mosque namely Ali Masjid' relating to people ofFiqah-Jafferia' in the village and that Imam' of the said mosque is alsoShiya'. He admitted that Hafeez Begum one of the petitioners is wedded in a Sunni' family. He also stated thatImam-Bargah' has no register or receipt book maintaining account of Chanda'. He also admitted that Muhammad Yousaf (PW-3) is hisBehnoi' (husband of sister).

6. Muhammad Yousaf (PW-3) deposed that Khadim Hussain belonged to Fiqah-Jafferia'. He stated that relatives of Khadim Hussain deceased areAhl-Sunnat'. While facing the cross-examination he admitted that he is Behnoi' of Alamdar Hussain (PW-2). During cross-examination he could not remember the name of deceased i.e. Khadim Hussain. He admitted thatJanaza' prayer of Khadim Hussain was offered by Molvi' belonged toAhl-Sunnat' however he could not tell the name of the Movli'. He further stated that accounts ofImam-Bargah' are maintained in writing by one Murtaza who resides in the village. He also claimed himself as Matwalli' ofImam-Bargah'.

7. In rebuttal to the above respondents produced Muhammad Hussain (DW-2) aged about 86 years who had offered 'Janaza' prayer of Khadim Hussain deceased deposed as under:--

1. Learned counsel for the petitioner has laid much emphasis on his argument that Muhammad Hussain (DW-2) in his above quoted statement has admitted that Khadim Hussain deceased had accepted Shiya' Sect. I am afraid learned counsel for the petitioner is misconceived. Statement of the witness is to be evaluated in a true perspective as a whole. Context of the statement cannot be ignored. Bare reading of the above quoted statement of Muhammad Hussain (DW-2) makes it crystal clear that Khadim Hussain deceased wasSunni' till the time of his death and not `Shiya'. Argument of learned counsel for the petitioner is devoid of any force and thus repelled.

2. There is no cavil to the proposition that mere fact of Janaza' prayer having been offered inSunni' manner is no criterion for determination of sectarian belief. Similarly question whether deceased was Shiya' orSunni' cannot be determined merely from Sect to which his relatives belong. Needless to say that the controversy regarding sect of a person cannot be determined by opinion of the parties rather it can be inferred from the facts creating presumption on one way or the other. Reliance is made upon Pathana Vs. Mst.Wasai and another (PLD 1965 Supreme Court 134). In the cited case of Pathana the Hon'ble Apex Court has laid down that in the Indo-Pak Sub-continent there is initial presumption that a Muslim is governed by a Hanfi Law unless contrary is established by good evidence. In another case titled Mst.Sardar Bibi Vs. Muhammad Bakhsh and others (PLD 1954 Lahore 480) with regard to determination of Sect of a person it was held that Court may presume that a deceased person was a Hanafi till the contrary was proved and that when both the parties stand to gain or lose valuable property the oral evidence is always to be approached with caution and it is safer to rely on that evidence which is in accordance with admitted circumstances and probabilities.

3. Alamdar Hussain (PW-2) in his testimony has stated that Khadim Hussain deceased used to contribute Chanda' to theImam-Bargah' however during cross-examination he categorically stated that no register of accounts of Imam-Bargah' or receipt book forChanda' were maintained. Contrary to the above his Behnoi' Muhammad Yousaf (PW-3) while facing the cross-examination stated that accounts ofImam-Bargah' were maintained by one Murtaza resident of the same village. Said Murtaza was not produced with any record of accounts of Imam-Bargah' to establish that Khadim Hussain ever contributed anyChanda'. It is pertinent to mention that Shiyas' in Marakewal village have their own mosque namelyAli-Masjid'. It is admitted by Muhammad Yousaf (P.W-3) that Khadim Hussain deceased used to offer his regular prayer in Charhdi Masjid' which belongs toSunni' Sect. It is no where asserted by said P.Ws. that deceased Khadim Hussain had ever offered his regular prayers in Ali-Masjid' which belongs toShiya' Sect. It is also admitted by Alamdar Hussain, (PW-2) that there are 5/6 Molvies who belong to Shiya' Sect in the village Marakewal. There is nothing on record to show thatJanaza' prayer of Khadim Hussain was offered by any Molvi' relating toShiya' Sect. Testimonies of Alamdar Hussain (P.W-2) and Muhammad Yousaf (P.W-3) therefore become doubtful on account of their inconsistencies. No independent and reliable witness was produced by the petitioners to establish that Khadim Hussain deceased belonged to `Shiya' Sect. Needless to say that in Civil Cases once the parties have advanced their respective ocular and documentary account controversy is determined on the basis of preponderance of evidence of the parties. Therefore concurrent findings of facts of both the Courts below on the controversy with regard to identity of Sect of Khadim Hussain deceased are based on true appreciation of the ocular account available on the record and do not call for any interference by this Court through invoking the revisional jurisdiction.

4. For all above, the impugned judgments and decrees passed by learned Courts below do not suffer from any factual infirmity, illegality or jurisdictional error. I do not find any misreading or non-reading of material evidence to call for any interference by this Court through exercise of revisionsal jurisdiction.

5. For the above reasons, this Civil Revision having no merit is dismissed.

(R.A.) Revision dismissed

PLJ 2014 Lahore 186 [Rawalpindi Bench Rawalpindi]

Present: Ch. Muhammad Younis, J.

MUHAMMAD ASHRAF--Petitioner

versus

JUSTICE OF PEACE/ADDITIONAL DISTRICT JUDGE, CHAKWAL and 3 others--Respondents

W.P. No. 1279 of 2011, decided on 9.7.2013.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 182--Criminal Procedure Code, (V of 1898), S. 156-A & 22-A--Ex-officio justice of peace directed police to proceed u/Section 182, PPC--Application for proceeding under Blasphemy laws--Proceedings of police were not challenged--Validity--Proceedings conducted by police on application of petitioner for registration of case were quite illegal and without jurisdiction--Ex-officio justice of peace could not base his order on the proceedings so on such score alone impugned order was not sustainable in eye of law and was liable to be set aside--Direction to police ex-officio justice of peace travelled beyond his domain--No FIR was registered so on basis of illegal proceedings conducted by police there was no occasion for ex-officio justice of peace to direct police to proceed u/S. 182, PPC--No Court can take cognizance of any offence punishable u/Sections 172 to 188, PPC except a complaint in writing of public servant to whom he was subordinate--Petition was allowed. [Pp. 188 & 189] A, B & C

PLD 2007 Lah. 53 & PLD 2001 Lah. 84, ref.

Ch. Mahmood Akhtar Khan and Malik Khurram Shahzad, Advocates for Petitioner.

Ch. Imran Hassan Ali, Advocate for Respondent No. 4.

Mr. Saif-ur-Rehman, AAG.

Date of hearing: 9.7.2013.

Order

Through the instant constitutional petition the impugned order dated 17.5.2011 passed by Mr. Sohail Ikram learned Additional Sessions Judge/Justice of Peace Chakwal has been assailed whereby on an application moved by the Respondent No. 4 under Section 22-A, Cr.P.C., the learned Ex-officio Justice of Peace directed the police to proceed against the petitioner under Section 182, PPC.

1. The learned counsel for the petitioner contends that an application was moved by the petitioner against the Respondent No. 4 for proceeding against him under the Blasphemy laws to the DPO. Instead of registration of case the inquiry/investigation was conducted into the allegations and the allegations were found to be false.

2. The said proceedings conducted by the police were not challenged before any forum and the matter ended. The learned counsel contends that as provided under Section. 156-A, Cr.P.C., no police officer below the rank of Superintendent of Police could conduct any inquiry or investigation into the matter without obtaining the prior permission from the Central or Provincial Government. The concerned police officer did not initiate any proceedings under Section 182, Cr.P.C. so the Respondent No. 4 who was a private person could not move for initiating such proceedings. The impugned order is without jurisdiction and is liable to be set aside. In support of his arguments the learned counsel referred to PLD 2001 Lahore 84 (Haji Muhammad Aslam vs. Inspector-General and others) and PLD 2007 Lahore 53.

3. The learned counsel for the Respondent No. 4 has vehemently opposed the petition and argued that since the investigation conducted by the police was not challenged so the Respondent No. 4 would be the beneficiary of it. He conceded that under provisions of Section 195, Cr.P.C., no Court could take cognizance of any offence punishable under Sections 172 to 188, PPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. The learned counsel goes on to submit that it was a matter of public importance and the Respondent No. 4 was competent to move an application to the learned Justice of Peace for this purpose and the impugned order passed after obtaining the comments submitted by the S.H.O., suffers from no legal infirmity. In support of his arguments he referred to 1992 SCMR 2162 (Superintendent of Police, Headquarters, Lahore and 2 others vs. Abdul Ghafoor).

4. I have considered the arguments advanced from both the sides and perused the available record.

5. It is important to note that the proceedings conducted by the police on the application of the petitioner before registration of case were quite illegal and without jurisdiction. The learned Ex-officio Justice of Peace could not base his order on the said proceedings so on this score alone the impugned order is not sustainable in the eye of law and is liable to be set aside.

6. Secondly by imparting direction to the police the learned Ex-officio Justice of Peace travelled beyond his domain. It was held by this Court in PLD 2007 Lahore 53 as under:--

"The learned ex-officio Justice of Peace could only pass an order directing registration of a criminal case if a cognizable offence was made out from the application or decline the same. The direction given to the S.H.O. by the learned ex officio Justice of Peace to initiate proceedings against the petitioner under Section 182, P.P.C. is beyond the purview of Section 22-A, Cr.P.C., hence it was in excess of the jurisdiction conferred upon him under the law".

Similarly in PLD 2001 Lahore 84 it was held as under by this Court:

"That the prerogative for proceedings under Section 182, PPC lies only with the police officer who has moved the machinery of law against the accused persons nominated in the FIR by the complainant. No other authority can direct the concerned police officer to proceed against the first informant who has given false information."

1. In the instant case even no FIR was registered so on the basis of illegal proceedings conducted by the police there was no occasion for the learned Ex-officio Justice of Peace to direct the police to proceed under Section 182, PPC. The provisions of Section 195, Cr.P.C. are also relevant for the disposal of the instant petition which provide that no Court can take cognizance of any offence punishable under Sections 172 to 188, PPC except a complaint in writing of the concerned public servant or of some other public servant to whom he is subordinate.

2. In the light of the above discussion and the case law referred to above I am of the view that the impugned order has been passed without jurisdiction and is not sustainable in the eye of law. The order has been passed on the basis of the illegal proceedings of inquiry conducted by the police before registration of case. When the foundation itself is not sustainable the superstructure built thereon, is bound to collapse. In these circumstances this writ petition is allowed and the impugned order is set aside.

(R.A.) Petition allowed

PLJ 2014 Lahore 189 [Multan Bench Multan]

Present: Ibad-ur-Rehman Lodhi, J.

Mst. SHAGUFTA PARVEEN--Appellant

versus

QAISER IJAZ & 2 others--Respondents

F.A.O. No. 172 of 2013, decided on 4.10.2013.

Mental Health Ordinance, 2001 (VII of 2001)--

----Ss. 29 & 30(1)(d)--Power the Court of protection to examine mentally disorder person with regard to mental capacity and condition of such person--Inherited shares--Validity--Examination of alleged mentally disordered person by Court of protection was thus within competence of such Court as provided in Section 30 (1)(b) of Ordinance and no exception can be taken of such proceedings and findings of Court of protection--Proceedings were crude and cruel effort on part of appellant to even usurp legitimate share inherited by mother from estate of her deceased son--Even at end of the day such share would devalue upon legal heirs of such lady which includes appellant but it seemed that appellant was in hurry to get such share--Appellant had failed to establish respondent as a mental disordered person--Court of protection had reached to just and proper when examination--Appeal was dismissed. [Pp. 192 & 192] A & C

Mental Health Ordinance, 2001 (VIII of 2001)--

----Preamble--Mental Health Ordinance, was promulgated to consolidated and amend law relating to treatment and care of mentally disordered persons, to make better provisions for their care, treatment, management of properties and affairs and to provide for matters connected therewith or incidental thereto and to encourage community care of such to provide for promotion of mental health and prevention of mental disorder. [P. 191] B

Ch. Habib Ullah Nahang, Advocate for Appellant.

Date of hearing: 4.10.2013.

Order

The appellant who is paternal grand daughter of Respondent No. 3 moved the Court of Protection under the provisions of Section 29 of Mental Health Ordinance, 2001 (Ordinance No. VIII of 2001) (hereinafter to be referred as "the Ordinance"), seeking a declaration that Respondent No. 3, her paternal grand mother is a mentally disordered person.

1. The learned Additional District Judge, Multan in his capacity of the Court of Protection as defined in Section 2(d) of the Ordinance, required Respondent No. 3 to attend the Court and after personal examination of said respondent by the Court, the petition moved by the appellant was dismissed on 14.09.2013, hence this appeal before this Court.

2. The learned counsel for the appellant has contended that the first appeal must be admitted as of right and the respondents be summoned.

3. Section 46 of the Ordinance provides a remedy of appeal from the order made by a Court of Protection under Chapter-V of the Ordinance but it is nowhere provided that the appeal so filed would be admitted as of right.

4. The learned counsel for the appellant was asked to address the arguments in support of appeal and thus, he contended that the Court of Protection was not competent itself to examine the person for whom the petition has been filed seeking the declaration to declare such person as a mentally disordered person and the matter must be referred either to a Psychiatric or any other expert in the relevant field.

5. Section 30(1)(d) of the Ordinance provides the regulation for proceedings of the Court of Protection which empowers the Court of Protection to examine the alleged mentally disordered person with regard to the mental capacity and condition of such person.

6. The perusal of impugned order reveals that Respondent No. 3, Mst. Bakhsh Ellahi was examined by the Court of Protection and the finding in this regard are relevant which are reproduced herein below:--

"Although Mst.Bakhsh Elahi is hard of hearing and extremely old lady, appears to be octogenarian but she has given very sound and pertinent and relevant replied to the Questions No. 7, 8 and 9 about her property. When she has been asked about her property, she has clearly stated that she will not give her property to any one as long as she is alive. She will handover her property to person who will love her. She has also asked the petitioner Shagufta Parveen whether she received property of her father Mian Ijaz Ahmad."

The examination of the alleged mentally disordered person by the Court of Protection was thus within the competence of such Court as provided in Section 30(1)(d) of the Ordinance and no exception can be taken of such proceedings and findings of learned Court of Protection.

1. Preamble of the Legislation is always considered a key to such legislation and when we look into the preamble of the Ordinance, it is but clear that the Ordinance was promulgated to consolidate and amend the law relating to the treatment and care of mentally disordered persons, to make better previsions for their care, treatment, management of properties and affairs and to provide for the matters connected therewith or incidental thereto and to encourage community care of such mentally disordered persons and further to provide for the promotion of mental health and prevention of mental disorder.

2. The practical experience proves otherwise. No serious efforts are seen in any sector of life, collective or individual in order to achieve the noble goal provided in preamble of the Ordinance. In comparison whereof, the provisions of Ordinance are being misused in order to achieve our wordly desires. Our social fabrics are being damaged to such extent that the concept of 'Old People Home" has been introduced in our `Islamic Society'. Real children are going to admit their aged and ailing parents in such shelter homes and once the parents are left there real children never return to at least have a look on their said parents. The properties and assets of such parents are thereby usurped by such avaricious children. Even during life time of the parents it has become the custom of our society that the children start claiming their shares from their parents, from the property owned by their parents. The children are crazy enough not to wait for the time they become entitled to have their shares on inheritance after the life of their parents come to an end. This is the height of greed.

Quranic Command as ordained in Surah "Bani Israel" Ayah No. 23 & 24, reproduced herein below is completely being ignored.

Even in the present case, Ijaz Ahmad died leaving behind his mother Mst. Bakhsh Ellahi (Respondent No. 3), two sons Qaisar Ijaz and Athar Ijaz, Respondent No. 1 & 2 and one daughter Mst.Shagufta Perveen, the present appellant, Mother of the deceased naturally got 1/6th share out of the estate of her deceased son Ijaz Ahmad whereas two sons and one daughter have also inherited from the estate of deceased in accordance with their respective shares. It is such 1/6th share inherited by Mst.Bakhsh Ellahi which is bone of contention in this matter. The present proceedings are crude and cruel effort on the part of the appellant to even usurp the legitimate share inherited by the mother from the estate of her deceased son. Even at the end of the day such 1/6th share would devolve upon the legal heirs of such lady which includes the present appellant but it seems that the appellant is in hurry to get such share.

1. The appellant has failed to establish Respondent No. 3 as a mentally disordered person. The Court of Protection has reached to a just and proper conclusion on 14.09.2013 when examined Mst.Bakhsh Ellahi and the petition filed by the appellant was dismissed.

2. I see no illegality in the impugned order which is sustained and the appeal which has no force is dismissed in limine.

(R.A.) Appeal dismissed

PLJ 2014 Lahore 193 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

TALIB HUSSAIN--Petitioner

versus

ADDITIONAL DISTRICT JUDGEetc.--Respondents

W.P. No. 3573 of 2013, heard on 9.10.2013.

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

----Art. 84--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Signature and thumb impressions be got compared with specimen signatures and thumb impressions--Application for comparison of thum-impressions in a suit for specific performance of an agreement to sell, dismissed--Validity--Signature and thumb impressions on alleged agreement are result of any sort of inducement, coercion, misrepresentation fraud forgery, rather it is case of denial--Court has power to get comparison of finger impressions in order to reach a just and fair conclusion--With passage of time, forensic science has progressed a lot and Courts in appropriate cases prefer to get assistance from experts of fields which not only help the Court to reach a fair conclusion but also to avoid complications and agony to litigants arising out of a wrong decision. [P. 195] A

Finger Impressions--

----Report of finger print--Undeniably, finger impressions of one person do not tally with those of any other person on earth and report of finger print experts is always helpful to Court to reach a fair conclusion. [P. 195] B

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

----Art. 84--Dispute regarding genuineness of thumb-impressions--Refusal to get the comparison of thumb impression and the signatures amounts to negation of justice--Signature and thumb impression of respondent be got compared with the specimen signature and thumb-impression from the handwriting and finger experts even at the cost of some delay--Reaching a fair conclusion is more and more necessary for soothing the litigants rather than to deliver a wrong decision hurriedly. [P. 195] C & D

Hafiz AbdulHameed Bhatti, Advocate for Petitioner.

Mr. MuhammadSabir Chishti, Advocate for Respondent No. 3.

Date of hearing: 9.10.2013

Judgment

Through this writ petition, the petitioner has challenged vires of judgment dated 04.06.2013 passed by learned Additional District Judge, Bahawalnagar who dismissed revision petition filed by the petitioner and upheld order dated 17.10.2012 passed by learned Civil Judge, Bahawalnagar whereby application of petitioner for comparison of signature and thumb-impression of Respondent No. 3 in a suit for specific performance of an agreement to sell dated 19.06.2004 filed by the petitioner was dismissed.

1. Learned counsel for the petitioner inter alia contends that Respondent No. 3 has sold out the suit property to the petitioner after having received total consideration amount vide agreement to sell dated 19.06.2004 which is duly signed and thumb-impressed by Respondent No. 3 who has denied his signature and thumb-impressions in order to avoid to fulfill his obligations, therefore, it is appropriate that his signature and thumb-impressions be got compared with his specimen signature and thumb-impressions by concerned experts; that comparison of thumb-impressions of Respondent No. 3 is necessary to reach a fair conclusion; that there is no embargo on comparison of signature and thumb-impression under the law; that valuable rights of the petitioner are involved in the matter, therefore, this writ petition be allowed, the impugned judgment and order be set aside and the application of the petitioner for comparison of signature and thumb-impression of Respondent No. 3 be allowed.

2. On the other hand, learned counsel for Respondent No. 3 has vehemently opposed this writ petition and supported the impugned judgment and order. He has emphasized more on the point that the evidence of the parties has already been recorded and the case is fixed for final arguments, therefore, allowing application for comparison of signature and thumb-impressions of Respondent No. 3 at this stage will not only prolong the litigation but also cause prejudice to rights of Respondent No. 3. He prays that this writ petition be dismissed. He has averred that the suit of the petitioner is not maintainable in view of the law laid down in case cited as 2010 SCMR 334. He has placed reliance on the law laid down in case tilted "Muhammad Rizwan Qureshi vs. Shehnaz Akhtar (2010 YLR 3101)".

3. Arguments heard. Record perused.

4. Admittedly, evidence of the parties has already been recorded and the trial is near to completion. This is the only reason given by learned Courts below while declining request of the petitioner for comparison of signature and thumb-impression of Respondent No. 3. Perusal of record reveals that the petitioner produced disputed agreement to sell as Exh.P1, the evidentiary value of which is yet to be determined by the trial Court as per requirement of Article 79 of the Qanun-e-Shahadat Order, 1984 whenever it finally decides the lis pending before it. The respondent has denied the execution of disputed agreement to sell. It is not the case of the respondent that the signature and thumb-impression on the alleged agreement are result of any sort of inducement, coercion, misrepresentation, fraud or forgery, rather it is a case of straightaway denial. The Court under Article 84 of the Qanun-e-Shahadat Order, 1984 has ample powers to get comparison of finger impressions in order to reach a just and fair conclusion. It is observed that with the passage of time, forensic science has progressed a lot and the Courts in the appropriate cases prefer to get assistance from the experts of relevant fields which not only helps the Court to reach a fair conclusion but also to avoid complications and agony to the litigants arising out of a wrong decision.

5. Undeniably, finger impressions of one person do not tally with those of any other person on the earth and the report of finger print expert is always helpful to the Court to reach a fair conclusion. In case of any dispute regarding genuineness of thumb-impressions. Article 84 of the Qanun-e-Shahadat Order, 1984 is an enabling provision of law and in the present case, refusal to get the comparison of thumb-impression and the signatures amounts to negation of justice. Had there been assertion of the respondent that the thumb-impression of the respondent over the disputed document were result of inducement, coercion, misrepresentation, fraud or forgery, the matter would have been different but as the signature and thumb-impression have categorically been denied, the report of handwriting expert and finger print expert will help the Court to reach a right decision which is not going to cause any prejudice to the rights of the respondent-defendant as apprehended by his counsel. It is further observed that the report of finger print and handwriting experts are always open to objection by either side.

6. The whole case of the petitioner depends upon proving the agreement to sell dated 19.06.2004 by which the suit property has allegedly been sold out by Respondent No. 3 to the petitioner. When the petitioner alleges that thumb-impression and signature were put by Respondent No. 3 Muhammad Yaqoob on the alleged agreement to sell dated 19.06.2004, there will be no harm to any party rather it will be appropriate and imperative to reach a just and proper conclusion that signature and thumb-impression of Respondent No. 3 be got compared with the specimen signature and thumb-impression of Respondent No. 3 from the handwriting and finger experts even at the cost of some delay. In my considered view, reaching a fair conclusion is more and more necessary for soothing the litigants rather than to deliver a wrong decision hurriedly.

7. The concept of filling up lacunas, as alleged by learned counsel for the respondent is against Pakistani jurisprudence, the principles of Islam as well as the precedent law on Islamic principles which are being made applicable progressively to the proceedings before the Courts and other forums which are required to record/admit evidence, as held in the case titled "Zar Wali Shah vs. Yousaf Ali Shah and 9 others (1992 SCMR 1778)" .

8. As regards maintainability of the suit in view of the law laid down in case cited as 2010 SCMR 334, the respondent may agitate this objection before the trial Court where the suit is pending adjudication.

9. For the aforementioned reasons, I accept this writ petition and set aside judgment dated 04.06.2013 passed by learned Additional District Judge, Bahawalnagar and order dated 17.10.2012 passed by learned Civil Judge, Bahawalnagar. Resultantly, the application of the petitioner for comparison of signature and thumb-impression of alleged vendor/Respondent No. 3 stands allowed as prayed for. Since the suit is pending for the last more than six years, the trial Court is directed to decide the same expeditiously but within two months from date of receipt of certified copy of this order.

(R.A.) Petition accepted

PLJ 2014 Lahore 196 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

Malik MUHAMMAD ASHRAF--Petitioner

versus

DISTRICT JUDGEetc.--Respondents

W.P. No. 2909 of 2013/Bwp, heard on 9.10.2013.

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

----S. 115 & O. VII, R. 11--Civil revision--Rejection of plaint--Attestation of mutation--Factual controversy between parties which can only be settled by Civil Court after recording of evidence--Validity--Appellate Court while accepting the revision petition and rejecting the plaint of the petitioner has relied upon the order passed by A.C.R. as well as the proceedings initiated against the petitioner before Anti-Corruption Authorities--None of grounds were available to revisional Court to reject plaint of petitioner at the revisional stage. [Pp. 199 & 200] A & B

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

----O. VII, R. 11--Rejection of plaint--Allegation of fraud and forgery in getting attestation of mutation--Challenged through filing an appeal before D.D.O.R. which was dismissed--Challenge to--Validity--Petitioner has disclosed the cause of action in the plaint and respondent while filing the application under Order VII Rule 11, CPC have agitated the matter on basis of fraud and forgery and the revenue Courts are not competent to decide the complicated question of commission of fraud and forgery and that too without the allegation of connivance of the revenue staff--Civil Court being the Court of plenary jurisdiction has the lawful authority to proceed with the civil suit and as such the trial Court was legally justified to reject the application under Order VII Rule 11, CPC whereas the revisional Court has committed gross illegality and jurisdictional error in accepting the revision petition and rejecting the plaint of the petitioner. [P. 200] C

Mr. Muhammad SultanWattoo, Advocate for Petitioner.

Ch.Riaz Ahmad, Advocate for Respondents.

Date of hearing: 9.10.2013

Judgment

Through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, the petitioner has challenged the order dated 27.04.2013 passed by the learned District Judge, Bahawalpur, who accepted the revision petition filed by Respondent No. 7 and set-aside the order dated 07.03.2013 passed by the learned Civil Judge Ist. Class, Bahawalpur, whereby the application under Order VII Rule 11, CPC filed by Respondent No. 7 was dismissed.

1. Brief facts of the case are that the petitioner filed a suit for declaration on the grounds that he is owner in possession of the land measuring 28-Kanals 13-marlas, 546/3200 shares of total land/Khata 160-kanals, vide Mutation No. 820 dated 11.04.2008 situated in Chak No. 12/B.C. according to the Register of Record of Rights for the year 2006-2007. The Defendants/Respondents No. 3 to 7 have no concern whatsoever with the said property and perpetual and mandatory injunction was also sought that the Defendants/Respondents No. 3 to 7 should be restrained forever from cancellation of the said mutation in any way and also be restrained from challenging revenue record forever but she with mala fide intention and inducement of her father and without any legal justification started litigation relating land of the petitioner, therefore, the petitioner was constrained to file a suit for declaration after unwarranted order of Additional Commissioner, Bahawalpur against Respondents No. 3 to 7 before the Civil Court, Bahawalpur. Respondents No. 3 to 7 appeared before the learned trial Court and submitted their respective written statements. During the pendency of the suit, Respondent No. 7 filed an application under Order VII Rule 11, CPC for rejection of the plaint, which was contested by the petitioner by filing written reply. After hearing the parties and perusing the law, the learned trial Court dismissed the said application filed by Respondent No. 7 vide its order dated 07.03.2013. Being aggrieved of the said order, Respondent No. 7 filed a civil revision before the learned District Judge, Bahawalpur who accepted the same and rejected the suit filed by the petitioner vide order dated 27.04.2013, hence this writ petition.

2. Learned counsel for the petitioners has contended that the impugned order dated 27.04.2013 passed by the learned District Judge, Bahawalpur is illegal, unwarranted and is liable to be set aside; that the learned District Judge, Bahawalpur while passing the impugned order has not applied his judicious mind; that application filed by Respondent No. 7 for rejection of the plaint was found by the learned trial Court as unwarranted; that the orders of the learned trial Court are at variance and need interference; that the order passed by the learned trial Court is well reasoned, which was passed after properly hearing the parties and perusing the law and facts; that neither Respondent No. 7 purchased the suit property nor she had such financial position to purchase the suit property; that there is factual controversy between the parties which can only be settled by the learned Civil Court after recording of evidence; therefore, the impugned order is liable to be set-aside. He has relied upon the judgments reported as Muhammad Sarwar Versus Ahmad Khan through L.Rs. and 2 others (2012 CLC 284) Muhammad Rahim Versus Malik Daud Khan and 6 others (2011 CLC 490), Nazeer Ahmad and others Versus Ghulam Mehdi and others (1988 SCMR 824) and Khushi Muhammad Versus Abdullah Shah (PLD 1964 W.P. (Rev.) 101.

3. On the other hand, learned counsel for Respondents No. 3 to 7 has vehemently opposed this petition and supported the impugned order. Learned counsel for Respondents No. 3 to 7 has contended that the impugned order is well reasoned and the learned District Judge has committed no illegality or irregularity in delivering the same, therefore, this writ petition is liable to be dismissal.

4. I have heard the learned counsel for the parties and have also gone through the available record.

5. From the perusal of application under Order VII Rule 11, CPC, filed by Respondent No. 7, it is revealed that the allegation of fraud and forgery has been levelled against the present petitioner in getting the attestation of Mutation No. 820 dated 11.4.2008, in his favour. The same objection has been taken in the written statement earlier filed by Respondent No. 7 as Defendant No. 5. This mutation was challenged by Respondent No. 7 through filing an appeal before the Deputy District Officer (Revenue) Bahawalpur, which was dismissed by him vide order dated 11.4.2009 against which, a revision petition was filed before the Additional Commissioner (Revenue) Bahawalpur.

6. In the meanwhile the present suit, out of which this writ petition has arisen, was filed by the petitioner against the revenue authorities as well as against Respondent No. 7. During the pendency of the suit, Respondent No. 5 vide order dated 25.3.2012 accepted the revision petition and cancelled the Mutation No. 820, the subject matter of the civil suit pending before the civil Court. The order passed by Respondent No. 5 has been assailed by the petitioner before the Member Board of Revenue. The learned trial Court dismissed the application under Order VII Rule 11, CPC filed by the Respondent No. 7 whereas the revisional Court by accepting the revision petition reversed the findings of the trial Court and accepted the application under Order VII Rule 11, CPC and the plaint of the petitioner was rejected. Perusal of the impugned judgment manifestly reflects that the appellate Court while accepting the revision petition and rejecting the plaint of the petitioner has relied upon the order passed by the Additional Commissioner Revenue as well as the proceedings initiated against the petitioner before the Anti Corruption Authorities whereby an FIR was registered against the petitioner u/Ss. 420/468/471/419, PPC read with Section 5/2/47 of PCA, 1947.

7. Under the provisions of Order VII Rule 11, CPC the plaint can be rejected on account of conditions which have been enumerated as follows:--

"11. Rejection of Plaint.--The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action;

(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law."

1. In my opinion, none of the grounds were available to the revisional Court to reject the plaint of the petitioner at the revisional stage. The case law cited by the revisional Court as 2012 SCMR 730 is not applicable to the present case and the said judgment of Hon'ble Court is quiet distinguishable from the facts of the present case. The petitioner has disclosed the cause of action in the plaint and Respondent No. 7 while filing the application under Order VII, Rule 11, CPC have agitated the matter on the basis of fraud and forgery and the revenue Courts are not competent to decide the complicated question of commission of fraud and forgery and that too without the allegation of connivance of the revenue staff. The civil Court being the Court of plenary jurisdiction has the lawful authority to proceed with the civil suit and as such the trial Court was legally justified to reject the application under Order VII, Rule 11, CPC whereas the revisional Court has committed gross illegality and jurisdictional error in accepting the revision petition and rejecting the plaint of the petitioner.

2. The upshot discussion is that the impugned judgment dated 27.04.2013 passed by the District Judge, Bahawalpur is set-aside and the order dated 07.3.2013 passed by the trial Court is upheld. Resultantly, suit of the petitioner will be deemed to be pending before the trial Court which shall be decided by the trial Court in accordance with law. Petition allowed.

(R.A.) Petition allowed

PLJ 2014 Lahore 200 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

Syed ASIF HUSSAIN--Petitioner

versus

JUDGE FAMILY COURT etc.--Respondents

W.P. No. 5524 of 2012, heard on 17.9.2013.

Family Court Rules, 1965--

----R. 6--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Territorial jurisdiction of Family Court--Application for dismissal of suits on ground of lack of territorial jurisdiction--Challenge to--Validity--A wife can file a family suit at a place of her residence and there arises no question of residence of her ex-husband in such like suits--Even it does not appeal to prudent mind that a plaintiff's wife, who is a lady, will file a suit at a place which is far off from a suit at a of residence which might cause more hardships to herself rather than to her husband who can move in society freely and more easily as compared to counterpart--Trial Court had rightly dismissed applicants to dismiss the suits on account of lack of territorial jurisdiction--No interference was called for--Petition was dismissed. [Pp. 203 & 204] A & C

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

----S. 17-B--No law for appointment of local commission for ascertainment of place of residence of a lady in a family suit--It is discretionary upon family Court to appoint a local commission to examine any person or to make a local investigation and inspect any property or document but at same time, it is obligation of a party who arrests some fact to prove same through production of evidence and local commission cannot be appointed to collect evidence or to prove or disprove assertion of a party--Petition was dismissed. [P. 203] B

Mr.Hameed-uz-Zaman, Advocate for Petitioner.

Mr.Zahid-ur-Rehman Tayyab, Advocate for Respondents.

Date of hearing: 17.9.2013

Judgment

Through this writ petition, the petitioner has assailed the order dated 20.09.2012 passed by learned Judge, Family Court, Bahawalpur whereby the applications of the petitioner for dismissal of the suits on account of lack of territorial jurisdiction and for appointment of a local commission for ascertainment of place of residence of the respondent-plaintiff was dismissed. The said applications were filed by the petitioner in suits filed by the respondents for recovery of dower, dowry articles and maintenance allowance.

1. Learned counsel for the petitioner inter alia contends that the learned Judge Family Court had no territorial jurisdiction to entertain the suits of the respondent-plaintiff as these were not filed for dissolution of marriage but for recovery of dower, dowry articles and maintenance allowance. He asserts that without prayer for dissolution of marriage, the suits for recovery of dower, dowry articles and maintenance allowance could not be filed at Bahawalpur because both the respondent and the petitioner were residing in Tehsil Ahmedpur Sharqia. He contends that the learned trial Court has wrongly dismissed the application of the petitioner for appointment of a local commission for determination of place of residence of the plaintiffs. He argues that in order to reach a just and proper conclusion, the trial Court should have appointed a local commission as the plaintiffs have shown their incorrect address in the plaint. He prays that the impugned order be set aside, the applications of the petitioner be allowed and the suit of the petitioner be dismissed on ground of lack of territorial jurisdiction. In support of his assertions, learned counsel for the petitioner has relied upon the law laid down in case titled "Shahzad Hussain vs. Judge Family Court, Lahore and two others (2011 CLC 820)."

2. On the other hand, learned counsel for the respondent-plaintiff submits that the respondent-plaintiff has shown her correct address and she is residing in Islamia Colony, Bahawalpur. He asserts that under the family laws, a wife can file a family suit at a place of her residence and it is not necessarily to be filed at the place of residence of her husband ex-husband. He further asserts that there is no law for appointment of a local commission for ascertainment of place of residence of a lady plaintiff in a family suit. Learned counsel for the respondent submits that the evidence of plaintiff has already been concluded whereas the evidence of petitioner-defendant is yet to be recorded. He avers that moving of applications at such a belated stage is nothing but a mere attempt to linger on the matter. He submits that the applications in question were without any merit and were rightly dismissed by the trial Court.

3. Arguments heard. Record perused.

4. Scanning of record shows that initially, three suits for recovery of dowry articles, haqul mehr and maintenance allowance were filed by the respondent and two minor children of the petitioner. All these suits were tried together through consolidation. Subsequently, a suit for restitution of conjugal rights was filed by the petitioner at Ahmerpur Sharqia. On application of the petitioner-defendant to transfer the suits of the respondent-plaintiff from Bahawalpur to Ahmedpur Sharqia, the learned District and Sessions Judge, Bahawalpur transferred the suit of the petitioner-defendant from Ahmedpur Sharqia to Bahawalpur vide order dated 18.01.2012 which order was not assailed by the petitioner before any competent forum. The suit of the petitioner was also consolidated with the suit of the respondent, consolidated issues were framed and consolidated evidence of the respondent-plaintiff was recorded till 21.07.2012. Afterwards, the petitioner moved application for dismissal of the suits on the ground of lack of territorial jurisdiction. He also filed an application for appointment of a local commission to determine the place of residence of the respondent-plaintiff. Both the applications were dismissed by the learned trial Court vide order dated 20.09.2012 which has been assailed by the petitioner before this Court.

5. As regards the contention of learned counsel for the petitioner that the Family Court at Bahawalpur had no territorial jurisdiction as the children of the respondent are statedly studying in Ahmedpur Sharqia is misconceived. The respondent has categorically asserted in the plaint and has submitted while appearing as her own witness that she is residing at Bahawalpur. Mere statement of one witness that the minors are studying at Ahmedpur Sharqia cannot oust the territorial jurisdiction of Family Court at Bahawalpur. Evidence of the petitioner/defendant is yet to be recorded who may produce his evidence to prove that the respondent is not residing at Bahawalpur which will be dealt with by the trial Court in accordance with law.

6. Under Rule 6 of West Pakistan Family Court Rules, 1965, the territorial jurisdiction of the Family Court has been specified as under:

"6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which:

(a) the cause of action wholly or in part has arisen, or

(b) where the parties reside or last resided together:

Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction." (underline is mine)

1. In view of the above, I am of the considered view that a wife can file a family suit at a place of her residence and there arises no question of residence of her husband/ex-husband in such like suits. Even it does not appeal to a prudent mind that a plaintiff wife, who is a lady, will file a suit at a place which is far off from her ordinary place of residence which might cause more hardships to herself rather than to her husband/defendant who can move in the society freely and more easily as compared to his counterpart.

2. As regards the question of appointment of a local commission, it is discretionary upon the family Court under Section 17-B of West Pakistan Family Court Act, 1964 to appoint a local commission to examine any person or to make a local investigation and inspect any property or document but at the same time, it is the obligation of a party who asserts some fact to prove the same through production of evidence and local commission cannot be appointed to collect the evidence or to prove or disprove the assertion of a party.

3. The learned trial Court has rightly dismissed the applications of the petitioner to dismiss the suits of the respondent-plaintiffs on account of lack of territorial jurisdiction. Learned counsel for the petitioner has not been able to point out any illegality, irregularity or infirmity in the order impugned which can be interfered with by this Court in its extraordinary constitutional jurisdiction. The law relied upon by learned counsel for the petitioner is also not applicable to the case in hand. No interference is called for.

4. In view of the above, this writ petition is without any substance. The same is dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 204 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

RASHID AHMAD & others--Petitioners

versus

NAZAR HUSSAIN & others--Respondents

C.R. No. 419 of 2003, heard on 26.9.2013.

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

----S. 9--Consolidation of Holdings Ordinance, 1960, S. 26--Jurisdiction of Civil Court--Suit against proceeding of consolidation authorities--Lack of jurisdiction to hear suits against orders of consolidation officers--Validity--Petitioners were aware of the proceedings of the consolidation but did not opt to file appeal before competent authority--Since the petitioners have not challenged the order of consolidation authorities but has only sought a declaration is misconceived--Petitioners had challenged the process of consolidation and under Section 26 of the Consolidation of Holdings Ordinance, 1960 the jurisdiction of Civil Courts petitioners had not been able to make out a case for interference by High Court, against the concurrent findings of law and facts, in its revisional jurisdiction--Civil revision being devoid of any force, is hereby dismissed. [P. 206] A & B

Malik Abdul Ghafoor Awan, Advocate for Petitioners.

Ch.Parmoon Bashir, Advocate for Respondents.

Date of hearing: 26.09.2013

Judgment

Through this civil revision, the petitioners have assailed the judgment and decree dated 03.07.2003 passed by learned Additional District Judge, Ahmedpur East who dismissed the appeal of the petitioners and upheld the order and decree dated 5.05.2000 passed by learned Civil Judge, Ahmadpur East whereby the plaint of the petitioners was rejected.

1. Brief facts of the case are that the petitioners filed a suit for declaration with perpetual injunction against the respondents alleging that they purchased the agricultural land measuring 23 kanals-12 marlas, fully described in para 1 of the plaint, from Mst. Bhiranwan alias Bharai, predecessor-in-interest of the respondents vide registered sale deed dated 14.03.1957; that in light of the aforesaid registered sale deed, Mutation No. 677 was also sanctioned on 12.06.1957 in favour of the petitioners; that in consolidation proceedings initiated in Mouza Chanab Rasool in 1993, the consolidation authority decreased the land of the petitioners in khata No. 40 to the extent of 13 kanals-10 marlas and they were only given land measuring 10 kanals-2 marlas out of total 23 kanals-12 marlas; that the rest of the land was allotted to Mst. Bhiranwan, predecessor-in-interest of the respondents-defendants and after her death, the said land was inherited by the respondents-defendants vide Mutation No. 86, hence the suit was filed.

2. The suit was contested by the respondents on the ground that the suit was barred by provisions of Order VII, Rule 11, C.P.C. They also filed a petition under Order VII, Rule 11, C.P.C. for rejection of the plaint on account of lack of jurisdiction of the civil Court to hear suits/petitions against the orders of consolidation officers.

3. After hearing learned counsel for the parties, learned trial Court rejected the plaint of the petitioners under Order VII, Rule 11, C.P.C. vide order dated 05.05.2000. Feeling aggrieved, the petitioners filed an appeal before the learned Additional District Judge, Ahmedpur East who dismissed the same vide judgment and decree dated 03.07.2003. Both the said order/judgment and decree have been challenged through the instant civil revision.

4. Learned counsel for the petitioners inter alia contends that the consolidation authorities have authority to make wandas from the jamabandi zair kar but they have neither authority to decrease the land of the petitioners or upset the longstanding entries of revenue record which were based on registered sale deed dated 14.03.1957 nor to decide rights of the parties; that the consolidation authorities have also no powers to resolve complicated questions of law and fact and to change revenue record in summary proceedings; that the consolidation authorities have travelled beyond their jurisdiction; that the Civil Court under Section 9, C.P.C. has all powers to strike down the order of the consolidation authorities; that the provisions of Order VII, Rule 11, C.P.C. are not attracted to the suit of the petitioners as the petitioners never challenged the order of the consolidation authorities but sought declaration only; that the impugned order and judgment are against law and fact, therefore, this civil revision be allowed and the impugned order/judgment and decree be set aside and the case be remanded to learned trial Court for decision of the case afresh after recording evidence of the parties.

5. Conversely, learned counsel for the respondents has vehemently opposed this civil revision and supported the impugned order/judgment and decree.

6. Perusal of record reflects that the petitioners by filing the suit agitated against the proceedings of consolidation authorities alleging that in connivance with the defendants the consolidation authorities decreased the area of the petitioners which they have purchased through a registered sale deed dated 14.03.1957. It is stated in the plaint that they purchased 23 kanals 12 marlas of land which was reduced and the area of 13 kanals and 10 marlas was excluded for the entitlement of the petitioners. The Paragraph No. 2 of the plaint has been reproduced by the appellate Court while passing the impugned judgment dated 03.07.2003 which shows that the petitioners were aware of the proceedings of the consolidation but did not opt to file appeal before the competent authority. The submission made by the learned counsel for the petitioners that since the petitioners have not challenged the order of consolidation authorities but has only sought a declaration is misconceived. Apparently, the petitioners have challenged the process of consolidation and under Section 26 of the Consolidation of Holdings Ordinance, 1960 the jurisdiction of Civil Courts, is barred which reads as under:--

"26. Jurisdiction of Civil Courts, barred as regards matter arising under this Ordinance.--No Civil Court shall entertain any suit or application to obtain a decision or order in respect of any matter which Government or the Board of Revenue or any officer is by this Ordinance, empowered to determine, decide or dispose of."

1. The petitioners have not been able to make out a case for interference by this Court, against the concurrent findings of law and facts, in its revisional jurisdiction. This civil revision being devoid of any force, is hereby dismissed.

(R.A.) Revision dismissed

PLJ 2014 Lahore 207 [Multan Bench Multan]

Present: Atir Mahmood, J.

MANZOOR AHMED etc.--Petitioners

versus

GHULAM HASSAN etc.--Respondents

C.R. No. 800-D of 2013, decided on 19.11.2013.

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

----S. 151 & O. XXVI, R. 9--Application for appointment of local commission was moved after 10 1/2 years of institution of the suit, refusal of--Determination of possession of suit property--Validity--After more than 3-years and 9-months of filing of the appeal, the application for appointment of local commission for determination of possession over the suit property was filed which could not be allowed at such a belated stage as it would undoubtedly prolong the litigation between the parties as well as their agonies--It was incumbent upon the petitioners to prove their possession by production of evidence which has been recorded and appellate Court is now seized with the matter--Appointment of local commission is prerogative of the Court and no party can seek appointment of a local commission to create evidence in his favour and that too at such a belated stage--Revision dismissed. [Pp. 208 & 209] A

PLJ 2003 SC 967 rel.

Malik Abdul Ghafoor Panwar, Advocate for Petitioners.

Date of hearing: 19.11.2013

Order

Through this civil revision, the petitioners have assailed order dated 08.11.2013 passed by learned Additional District Judge, Layyah whereby petitioners' application under Order XXVI Rule 9 read with Section 151, CPC for appointment of a local commission was dismissed.

1. Brief facts leading to filing of instant revision petition are that on 10.04.2003, the petitioners filed a suit for declaration regarding the property fully mentioned in the plaint. The suit was contested by the respondents. The issues were framed. After recording evidence and hearing the parties, learned trial Court dismissed the suit of the petitioners with cost vide judgment and decree dated 05.01.2010. Feeling aggrieved, the petitioners filed an appeal before the learned Additional District Judge, Layyah on 04.02.2010. During the pendency of the appeal, the petitioners on 12.10.2013 filed an application for appointment of a local commission for ascertainment as to who is possession of the suit property. The application was opposed by the other side. After hearing learned counsel for the parties, learned Additional District Judge, District Layyah dismissed the application vide his order dated 08.11.2013 which is impugned in this revision petition.

2. Learned counsel for the petitioners though frankly admits that the application for appointment of local commission was moved at a very belated stage, yet he prays that one opportunity be given to the petitioners for proving that they are in possession of the suit property.

3. Arguments heard. Record perused.

4. Scanning of record shows that the suit for declaration was filed by the petitioners on 10.04.2003 on the basis of a Sale Deed No. 1862 dated 19.10.1965 allegedly made by Mst. Mehr Mai, predecessor-in-interest of the respondents-defendants in favour of father of the petitioners-plaintiffs namely Ghulam Hussain with the averment that the possession of the suit property was also delivered to their father, therefore, Mutation No. 11, dated 25.09.1995 executed by the said lady in favour of respondents-defendants as well as subsequent mutations, sale-deeds etc. are nullity in the eye of law. However, the suit of the petitioners is being contested by the other side denying execution of any sale-deed in favour of the petitioners. The respondents also aver that the Sale Deed No. 1862 dated 19.10.1965 is false and fictitious. After recording oral and documentary evidence adduced by the parties, the suit was dismissed by learned trial Court vide judgment and decree 05.01.2010 whereagainst the appeal was filed by the petitioners on 04.02.2010 which is still pending adjudication. During the pendency of the appeal on 12.10.2013, the application for appointment of local commission for determination as to who is in possession of the suit property was moved by the petitioners which was dismissed by the learned lower appellate Court vide order dated 08.11.2013.

5. There is no denial that the application for appointment of local commission was moved after 10« years of institution of the suit by the petitioners. The suit remained pending before trial Court for six years and nine months but no such application was ever filed before the trial Court. Afterwards, the appeal was filed before the learned Additional District Judge, Layyah on 04.02.2010. After more than 3-years and 9-months of filing of the appeal, the application for appointment of local commission for determination of possession over the suit property was filed which could not be allowed at such a belated stage as it would undoubtedly prolong the litigation between the parties as well as their agonies. Even otherwise, it was incumbent upon the petitioners to prove their possession by production of evidence which has been recorded and appellate Court is now seized with the matter. The appointment of local commission is prerogative of the Court and no party can seek appointment of a local commission to create evidence in his favour and that too at such a belated stage. Guidance can be sought form the dictums laid down by the Hon'ble Supreme Court of Pakistan in case reported as "PLJ 2003 SC 967 (Jalal Khan and 10 others vs. Khandoo Malik and 24 others)." Relevant excerpt is reproduced hereunder:

"The perusal of record would show that the request of petitioners for appointment of Local Commission was not allowed by the Appellate Court and also by the High Court as sufficient evidence was available on record to decide the case. It appears that petitioners sought appointment of Local commission for their own convenience as they have not been able to substantiate their plea through any cogent evidence. We having heard the learned counsel for the petitioners, have not been bale to find out any misreading or non-reading of evidence by the Appellate Court therefore, the High Court has rightly declined to interfere in the concurrent findings of fact which would not be open to challenge on the grounds that before the High Court and before this Court in support of present petition."

1. Learned counsel for the petitioners has also failed to point out any illegality in the order impugned. No interference is called for.

2. For the aforementioned reasons, this civil revision has no merit. The same is dismissed in limine.

(R.A.) Revision dismissed

PLJ 2014 Lahore 209

Present: Mrs. Ayesha A.Malik, J.

AL-JADEED ENGINEERING SERVICES, etc.--Petitioners

versus

OIL AND GAS REGULATORY AUTHORITY, etc.--Respondents

W.P. No. 1524 of 2013, decided on 27.9.2013.

CNG Rules, 1992--

----Rr. 5, 16 & 18--CNG Rules, 2010, Rr. 155 & 159--OGRA Ordinance, 2002--Scope--Explosive Act, 1884, Ss. 4, 5 & 7--Constitution of Pakistan, 1973, Art. 199--Constitutional petitions--Annual safety inspection of CNG Stations--Jurisdiction of OGRA to appoint third party inspector for purposes of inspections, certifications and verification of CNG Stations--Responsibility of OGRA to maintain standard and code of practice--Issuance of licences, testing--Chief Inspector Explosives is the licensing authority who has to ensure that every vessel, cylinder or container which is filled with or used for storage or transport of compressed gas is manufactured and maintained as per the rules--Chief Inspector Explosives is required to carry out periodic inspections, which includes an annual safety inspection of the pressure vessels, cylinder, valves, electrical installation and allied fittings used in the CNG Stations to ensure compliance of the 2010 Rules--Chief Inspector Explosives will issue its approval that all the cylinders, vessels, valves and electrical installations are as per the prescribed standards--Chief Inspector Explosives conducts annual safety inspection of vessel, cylinders, valves and electrical installation of the CNG station and allied fittings to ensure compliance of the design and manufacturing standards and OGRA conducts the annual safety inspection to ensure that the licensee is complying with the Standard Code of Practice in the operation of its CNG station--Primary objective for both inspections is to ensure strict compliance with the terms of the license and the safety codes--OGRA and Chief Inspector Explosives are responsible to ensure compliance of the rules and to maintain public safety and prevent accidents--OGRA is the licensing authority for compressed natural gas and is required to conduct third party inspections of the licensed premises to ensure strict compliance of OGRA Ordinance 2002 and the CNG Rules 1992, the terms of the license and to ensure compliance with the Standard Code of Practice as prescribed in the CNG Rules 1992--Notices issued by OGRA for conducting annual safety inspections and for retesting cylinders are in accordance with the law and should be complied with by the Petitioners. [Pp. 216 & 217] A, B, C & D

Mr.Mobeen-ud-Din Qazi, Ch. Muhammad Rafique Warriach, Mr. Amir Umer Khan, Mian Javed Iqbal Araien, Mr. Saleem Akram Chaudhry, Mr. Muhammad Iqbal Ghaznavi, Syed Amjad Iqbal Hussain, Rana Shakeel Ahmed Khan, Advocates for Petitioners.

Mr.Sameer Khosa, Advocate for OGRA (in W.P. Nos. 22706/12, 29306/12, 31841/12, 1524/13 & 940/13).

Mr.Shaukat Umar Pirzada, Advocate for OGRA (in W.P. Nos. 25984/11, 17237/12 and 21101/12).

Mr. Muhammad Naseem Kashmiri, DAG alongwith Mr. M. Nazir Malik, Senior Law Officer, Mehfooz-ur-Rehman, Technical Officer and Muhammad Aftab Qazi, Inspector of Explosives for Respondents.

Date of hearing: 31.07.2013

Judgment

This consolidated judgment shall decide upon the common issues raised in Writ Petition Nos. 25984/2011, 21101/2012, 11269/2012, 17237/2012, 22706/2012, 29306/2012, 31841/2012, 940/2013, 1524/2013 and 8262/2013.

1. The basic issue that arises in these petitions is with respect to the annual safety inspection of CNG stations. The case of the petitioners is that the annual safety inspection is to be carried out by third party inspectors as appointed by the Chief Inspector Explosives, under the control of the Ministry of explosives. It is their case that the Oil and Gas Regulatory Authority (OGRA) has no jurisdiction or authority to appoint third party inspectors for the purposes of inspections, certifications and verification of CNG stations. This authority lies exclusively with the Chief Inspector Explosives.

2. The grievance of the petitioners is that OGRA has issued notices to conduct annual safety inspections of CNG stations through third party inspectors, appointed by them, failing which the gas supply to the CNG stations will be disconnected. The petitioners counsels argued that the annual safety inspection was carried out by third party inspectors appointed by the Chief Inspector Explosives, therefore, the petitioners should not be burdened with the fee demanded by OGRA for carrying out an inspection already completed by the Chief Inspector Explosives. The petitioners contend that the dispute between the Ministry of Explosives and OGRA over who has to conduct the annual safety inspection of the CNG stations should not transgress upon the rights of the petitioners to conduct their business.

3. The petitioners in W.P. Nos. 25984/2011, 21101/2012, 11269/2012, 17237/2012, 22706/2012, 29306/2012, 940/2013, 1524/2013 and 8262/2013 were all issued notices by OGRA for the purposes of conducting annual safety inspection by third party inspectors appointed by OGRA. W.P. No. 31841/2012 has been filed against a notice issued for re-testing of CNG cylinders. W.P. No. 1524/2013 has been filed by the association of third party inspectors who seek a declaration from this Court that they enjoy exclusive jurisdiction to conduct all safety related inspections. The case of the petitioners is that in terms of Sections 5 and 6 of the Explosive Act, 1884, (Act of 1884) Sections 4 and 5 of the Petroleum Act, 1934 (Act of 1934) read with Explosives Rules, 2010 and the Mineral and Industrial Gas Safety Rules, 2010 (2010 Rules), the Department of Explosives is exclusively empowered to grant approval of designs, specifications, standards, manufacturing and all other issues with respect to a CNG station. Furthermore, the Department of Explosives is also given the exclusive mandate under the law to ensure implementation of all safety rules wherever any industrial gases, hazardous, substances and explosives are used. Section 7 of the Act of 1934 specifically empowers the Chief Inspector Explosives to appoint third party inspectors for inspection, certification and verification of CNG stations. It is the petitioners case that OGRA has no role to play when it comes to public safety and installation of a CNG station. In order to resolve this issue between the Department of Explosives and OGRA, the Department of Explosives wrote a letter to the Chairman, OGRA on 10.08.2011 explaining the role of the Department of Explosives as follows:--

"(I) As per Sections 5 and 6 of Explosives Act, 1884 and Sections 4 & 5 of Petroleum Act, 1934 and rules framed underthere, the Department of Explosives is empowered to grant approval of design, specification, standards, import & manufacturing and manners of installation of all sort of compressed/liquefied Gas containers (Cylinders, Vessels) Petroleum Storage Tanks, compressors, Dispensers, piping, fitting, allied equipments and all kind of safety devices.

(II) As per Section 7 of Explosives Act, 1884 and Section 26 of Petroleum Act, 1934, Department of Explosives is an entity empowered to appoint third party inspectors to enter for inspection/certification/verification of CNG stations, LPG plants, LPG automotive station, Petrol pumps, Bulk Petroleum Oil & other Petrochemicals depots, all sort of CNG/LPG/LNG/Industrial Gases carriers and containers (cylinders, vessels) etc.

(III) As compared to above, the domain of OGRA under Ordinance No. XVII of 2002, dated 28.03.2002 is that OGRA was formulated to foster competition, increase private investment and ownership in the midstream and downstream. Petroleum industry to protect the public interest while respecting individual rights. Obviously OGRA is mainly concerned with the pricing, marketing, tariff, duties, tax exemptions, supply of CNG, LPG, LNG to provide effective and efficient regulation for above mentioned purposes."

However, OGRA totally ignored the said letter and continued to issue letters to CNG stations with respect to third party inspections. In this regard, a letter was issued by the Ministry of Industries Department to the Respondents No. 4 and 5 on 11.9.2012 explaining that the relevant authority to regulate safety aspects of CNG stations is the Chief Inspector Explosives. Based on these letters, it has been argued that OGRA cannot appoint third party inspectors. The learned DAG supported the case of the Respondents No. 6 and 7 by contending that the authority for appointment of third party inspectors for annual safety inspections lies with the Chief Inspector Explosives.

1. The Respondent No. 3, Hydrocarbon Development Institute of Pakistan argued that all testing of CNG cylinders fell within their jurisdiction under the Hydrocarbon Development Institute of Pakistan Act, 2006 (2006 Act) and the CNG Rules, 1992. That OGRA is responsible to maintain the Standard Code of Practice and the CNG Safety Rules and that the competent authority for maintaining safety and conducting inspections was OGRA.

2. In the instant petitions, report and parawise comments have been filed by the Respondent No. 1 OGRA, the Respondent No. 2 Ministry of Petroleum & Natural Resources, the Respondent No. 3 Hydrocarbon Development Institute of Pakistan, the Respondents No. 6 & 7 Ministry of Industries and Department of Explosives and the Respondent No. 8 Federation of Pakistan through Secretary Cabinet Division, Islamabad.

3. In order to appreciate the controversy at hand, the learned counsels appearing before this Court set out to explain the law governing the dispute at hand. OGRA was established under the Oil and Gas Regulatory Authority Ordinance, 2002 (OGRA Ordinance 2002) to regulate the oil and gas sector especially with regard to petroleum, oil, natural gas, LPG, LNG and CNG. Section 2(1)(xxxii) of the OGRA Ordinance, defines `regulated activity' as an activity that requires a license. License has been defined under Section 2(1)(xi) as one granted under the OGRA Ordinance, 2002. Section 22 of the OGRA Ordinance, 2002 provides that OGRA shall have exclusive powers to grant licenses in respect of any regulated activity. Section 23(2) provides that no person shall construct or operate any CNG testing facility, CNG storage facility and undertake transportation, filling, marketing or distributing CNG unless a general or specific license has been issued by OGRA. OGRA has also adopted the Standard Code appended to the CNG (Production & Marketing) Rules, 1992 (CNG Rules, 1992) and is the Authority under the CNG Rules, 1992. Rule 3 of the CNG Rules 1992 provides that a license must be obtained from OGRA before the operation, or construction of works connected with compression of natural gas for the purpose of filling, storing and distributing CNG. Rule 10 of the CNG Rules, 1992 provides that the licensee, after the commencement of the license, shall execute to the satisfaction of the Authority his works in accordance with the code of practice, appended to these rules, within a period of two years or; such further period as the Authority may allow under special circumstances proved by the licensee to be behind his control. Rule 10 further provides that the Authority shall appoint third party inspectors for verification of works of the licensee in pursuance of Rule 10(1).

4. Learned counsel for OGRA argued that the license issued by the Authority is for filling, storing, distribution, transportation and marketing CNG stations. In order to establish a CNG station, a provisional marketing license is issued by the Authority OGRA. Thereafter the proprietor of the CNG station provides the Authority with all the required documentation which includes No Objection Certificates from various Departments. Under the CNG Rules, 1992 when the works commence at the CNG station, OGRA is to conduct an inspection and on the completion of the works it issues a license. Prior to the issuance of the license, OGRA obtains verification of the works through third party inspection. Subsequently after the commissioning of the station, OGRA obtains a report through third party inspectors to ensure that the terms and conditions of the license have been satisfied. He argued that the Explosive Rules, 2010 are made under the Explosive Act, 1884. Under the Petroleum Act, 1934, the Petroleum Rules, 1937, Gas Safety Rules, 1960 and the Gas Safety Rules, 2010 were framed. Under the Regulation of Mines and Oil Fields Act, 1948, the CNG Rules, 1992 were framed prior to the establishment of OGRA. Third party inspection was carried out under the CNG Rules, 1992 by the department of Explosives. However after 2002 with the establishment of OGRA, all matters related to CNG stations, such as issuance of license, testing, certifications, storage all fall under the exclusive control of OGRA.

5. Learned counsel for the petitioners argued that letter dated 28.07.2011 issued by the Ministry of Industries clarifies the matter and the legal position. Pursuant to this decision, the Chief Inspector Explosives requested OGRA to refrain from appointing third party inspectors to inspect CNG stations. However, notwithstanding the clarification from the Ministry of Industries, OGRA continued to interfere in the third party inspections carried out by the Department of Explosives. Again on 23.01.2012 the Department of Explosives addressed a letter to all the Chief Secretaries of all the Provinces stating that third party inspectors could only be appointed by the Department of Explosives. However, with reference to the petitioners' cases OGRA has issued letters calling for appointment of third party inspectors failing which the gas supply of the petitioners with the CNG stations will be disconnected.

6. I have heard learned counsel for the parties and reviewed the record available on the files.

7. The Explosives Act, 1884 promulgated under the Ministry of Industries provides in Section 4(1) definition of explosives. The definition of explosives is conferred to substances whether solid, liquid or gaseous used or manufactured with a view to produce an explosion or fireworks. Section 5 gives the power to make rules as to license and manufacturing, use, sale, transport and import of explosives. Section 7 provides for conferring the rule making power for inspection, search, seizure, detention and removal. Under this Act the Explosives Rules, 2010 were framed. However, there is no provision in the said rules relevant to the controversy at hand.

8. The Petroleum Act, 1934 regulates the import, transport, storage and production, refining and blending of petroleum substances. Petroleum is defined to mean any liquid hydrocarbon or mixture of hydrocarbons. Section 4 relates to the import, transport and storage of petroleum, providing that the Federal Government may make rules in relation to import, transport and storage of petroleum. Section 5 relates to production, refining and blending of petroleum and provides that the Federation may make rules for this purpose. Section 13 provides for inspection of places where petroleum is imported, stored and produced, refined and blended. The Federal Government may authorize any officer to cause such inspection. Section 26 provides for entry and search to any place to seize, detain or remove the petroleum. Again the Federal Government is to authorize an officer for this purpose. Under the Act of 1934 the Mineral and Industrial Gases Safety Rules, 2010 were promulgated. The 2010 Rules regulate filling and manufacture of compressed gas in any vessel including the transport of vessel filled with compressed gas. Vessel is defined as a pressure vessel under Rule 2(ixxxvii) and pressure vessel is defined in Rule 2(ixviii) as a closed metal container of whatever shape for storage and transport of compressed gas. Rule 3 provides that filling and manufacture in any vessel shall be as per the specified standard or code and with the approval of the Chief Inspector Explosives. The procedure for seeking the approval of the Chief Inspector Explosives is provided under the said Rule. The 2010 Rules provide that third party inspectors carry out certifying pressure vessels and their fittings so as to ensure that the pressure vessels are designed and constructed as per the prescribed standard Rule 2(xcii). The Chief Inspector Explosives also carries out inspection and testing of cylinders filled with compressed gas under Rule 28. The filling, possession, import and transport of cylinders with compressed gas have to be approved by the Chief Inspector Explosives under Rule 129. Similarly the valves used on the gas cylinders must also comply with the required specification (Rule 130) and so must the electrical installation used at the CNG station (Rule 148). Rule 155 of the 2010 Rules provides that no person shall fill any cylinder, vessel and container with compressed gas and no cylinder, vessel and container filled with compressed gas shall be possessed by anyone except under and in accordance with the conditions of a licence granted under these rules and Rule 159 of 2010 Rules provides the plans of the premises proposed to be licensed are to be submitted to the Chief Inspector Explosives who will ensure that the compressed gas will be filled and stored in the premises as per the proposed license. Therefore the 2010 Rules regulate the design and manufacturing of pressure vessels, the cylinders, valves and the electrical installation used in CNG stations. The inspection carried out by the third party inspectors under the 2010 Rules is to ensure that the vessel, cylinder valves and electrical installation are manufactured as per the standards prescribed. The Chief Inspector Explosives is the licensing authority who has to ensure that every vessel, cylinder or container which is filled with or used for storage or transport of compressed gas is manufactured and maintained as per the rules. In this regard the Chief Inspector Explosives is required to carry out periodic inspections, which includes an annual safety inspection of the pressure vessels, cylinder, valves, electrical installation and allied fittings used in the CNG stations to ensure compliance of the 2010 Rules. The Chief Inspector Explosives will issue its approval that all the cylinders, vessels, valves and electrical installations are as per the prescribed standards. In this regard the Chief Inspector Explosives will also review the plans for the installations of the cylinders, vessels and electrical installations to ensure compliance with the prescribed standards. OGRA on the other hand is the licensing authority for the operation of the CNG stations. The regulation of OGRA starts from the inception, such that no person shall without first obtaining a license from OGRA, enter into an agreement for the operation and construction of works for storage, filling and distributing CNG. Under Rule 5 of the CNG Rules, 1992 when considering an application for issuance of license OGRA is required to give regard to public interest. OGRA regulates the total area within which the CNG is stored, filled or distributed. It regulates the price of the CNG, the location of the station and the use of the site for the CNG station and all related safety issues. It regulates the works after commencement of the license till its completion. OGRA can conduct inspections under Rules 16 and 18 of the CNG Rules, 1992 to ensure compliance of the terms and conditions of the license as well as to ensure public safety which read as follows:--

"16. Entry, inspection and enforcement of the rules.--The Authority or any person duly authorized by the Authority in this behalf may enter, inspect and examine any place in which he has reason to believe that there is any work(s) for compressing natural gas for the purpose of storing, measuring or distribution of CNG and take other necessary steps for the due observance of the provisions of these rules by licensees, consumers or any other person connected with the storage, filling, distribution and use of CNG."

"18. Protection to public.--(1) A licensee shall locate, construct and operate his pipeline and all works connected with CNG Refueling station, and installation of CNG equipment in automobiles in accordance with the licence granted by the Chief Inspector of Explosives under the Mineral Gas Safety Rules, 1960, and strictly comply with the provisions of the Petroleum Rules, 1937 and the Gas Cylinder Rules, 1940, so as to avoid any danger to the public health or safety ........."

Therefore as per the 2010 Rules and the CNG Rules, 1992, I find that the Chief Inspector Explosives conducts annual safety inspection of the vessel, cylinders, valves and electrical installation of the CNG station and allied fittings to ensure compliance of the design and manufacturing standards and OGRA conducts the annual safety inspection to ensure that the licensee is complying with the Standard Code of Practice in the operation of its CNG station. Both inspections can be carried out through third party inspectors. The primary objective for both inspections is to ensure strict compliance with the terms of the license and the safety codes. I may add here that the law and the rules referred to contemplate "public safety" not only from the perspective of the location and operation of the CNG station but also to ensure the checking of every vessel, cylinder, valve or electrical fitting used in the CNG station. Therefore both OGRA and Chief Inspector Explosives are responsible to ensure compliance of the rules and to maintain public safety and prevent accidents.

1. Each regulator is to work within its given jurisdiction. The explanation given by Respondent No. 2 does not resolve the matter at hand and has misconstrued the role of both OGRA and Chief Inspector Explosives. OGRA is the licensing authority for compressed natural gas and is required to conduct third party inspections of the licensed premises to ensure strict compliance of OGRA Ordinance, 2002 and the CNG Rules, 1992, the terms of the license and to ensure compliance with the Standard Code of Practice as prescribed in the CNG Rules, 1992. The Chief Inspector Explosives is the licensing authority for the vessel and cylinder used for filling, storing and distributing compressed gas. He has to ensure that every vessel, cylinder, valve and electrical installation used at the CNG station is as per the specifications prescribed. The role of both regulators is of paramount importance when it comes to public safety. Therefore the notices issued by OGRA for conducting annual safety inspections and for retesting cylinders are in accordance with the law and should be complied with by the petitioners.

2. In view of the aforesaid all these petitions are dismissed.

(R.A.) Petitions dismissed

PLJ 2014 Lahore 218 [Bahawalpur Bench Bahawalpur]

Present: Shahid Bilal Hassan, J.

MUHAMMAD JAVED AALAM --Petitioner

versus

ZAFFAR IQBAL--Respondent

C.Rev. No. 358 of 2009/BWP, decided on 24.9.2013.

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

----S. 115--Civil revision--Concurrent findings--Suit for rendition of account--Umpire was appointed to settle dispute inter se parties--Decision of umpire was converted into final decree--Question of--Whether any irregularity, illegality and wrong exercise of jurisdiction vested in a Court was committed--Validity--It is well settled by now that High Court cannot interfere in the finding on question of law or facts, howsoever, erroneous in exercise of its revisional jurisdiction--No such occasion has arisen at trial as well as appellate stage, so High Court finds no illegality, irregularity or infirmity, wrong exercise of jurisdiction vested upon the Courts below while passing the impugned order, judgment and decrees, respectively; therefore, same do not call for any interference by High Court while exercising revisional jurisdiction--When the petitioner has failed to establish any illegality, irregularity or infirmity in the findings of Courts below, it can be safely observed that the same are result of appraising the evidence in true perspective, applying of judicial mind, rightly interpreting the law and upto the dexterity, therefore, same do not call for any call for any interfere by High Court. [P. 221] A, B & C

Mrs.Nusrat Jabeen, Advocate for Petitioner.

Mr. MuhammadNaveed Farhan, Advocate for Respondent.

Date of hearing: 10.9.2013.

Order

Muhammad Javed Aalam, the petitioner, through the instant civil revision has called into question the legality and sustainability of the impugned judgments and decrees dated 30.03.2006 & 14.04.2009, by which learned Civil Judge 1st Class, Fortabbas & learned Addl. District Judge, Haroonabad Camp at Fortabbas, while deciding the suit titled "Zaffar Iqbal vs. Muhammad Javed Aalam" for rendition of accounts decreed the same and appeal preferred by the petitioner also met with the same fate, respectively.

1. Briefly, the facts leading towards this civil revision are as such that the present respondent/plaintiff instituted a suit for rendition of accounts against the petitioner/defendant pleading therein that the parties were running a joint venture in the shape of Ice Factory as partners. After dissolution of partnership Rs. 236,000/- were found outstanding against the petitioner/defendant, in this respect he (petitioner/defendant) executed an agreement dated 03.12.1990, in which terms and conditions were settled for payment of the disputed amount with profit. Afterwards, the petitioner/defendant was asked to pay the disputed amount, but he remained procrastinating and ultimately refused. The suit was contested by the petitioner/defendant by filing written statement. The divergence in the pleadings was summed up into issues on 05.12.1995. Both the parties lead their evidence, pro and contra, in support of their respective versions. Learned trial Court vide its judgment dated 20.09.1995 passed preliminary decree in favour of the respondent/plaintiff. On 21.05.1999, with the consent of the parties, an Umpire was appointed to settle the dispute inter se the parties, who submitted his decision on 20.10.1999 before the learned trial Court and making basis the said decision, the learned trial Court finally disposed of the suit of the respondent/plaintiff. Being aggrieved of the same, the petitioner/defendant preferred an appeal, which was ultimately accepted vide judgment dated 20.02.2003, impugned order dated 20.10.1999 was set aside and suit was remanded to the learned trial Court for decision afresh in accordance with law. The said judgment of learned Appellate Court was assailed before this Court by filing a civil revision, which was dismissed vide order dated 11.10.2004. After remand of the suit, the learned trial Court vide its order and decree dated 30.03.2006, again decreed the suit in favour of the respondent/plaintiff making basis the decision of the Umpire, appointed with the consent of the parties while converting the preliminary decree dated 20.09.1995 into final decree. Being aggrieved of the said order and decree, the present petitioner again preferred an appeal before the learned Appellate Court, which was subsequently dismissed by maintaining the order and decree of the learned trial Court, vide judgment dated 14.04.2009, this civil revision.

2. Learned counsel for the petitioner has argued that the impugned judgments and decrees are against facts and law; result of misreading and non-reading of evidence and incorrect appreciation of law; that the learned trial Court did not provide any proper opportunity to file objections on the decision of the Umpire as required under the Arbitration Act, hence, by bypassing the said procedure decreed the suit of the respondent/plaintiff making basis the said decision of Umpire; that learned Appellate Court has erred in endorsing the order and decree of the learned trial Court and has not made any exertion to appreciate the evidence in true perspective; that the impugned judgments and decrees are based on the decision of Umpire/Arbitrator but his decision has not been got exhibited on the record, therefore, the same are nullity in the eye of law; that the Umpire/Arbitrator remained fail to determine the dispute inter se the parties in an unambiguous way and excessive amount was fixed, so his decision could not be made basis for passing any decree against the petitioner; that the impugned order and decree of the learned trial Court was in sheer negligence of remand judgment, so the same was not sustainable in the eye of law and liable to be struck down rather to be endorsed by the learned Appellate Court; therefore, both the judgments and decrees passed by Courts below are liable to be set aside and resultantly the suit of the respondent/plaintiff is liable to be dismissed.

3. Learned counsel appearing on behalf of the respondent by favouring the impugned judgments and decrees has controverted the grounds and submissions made by learned counsel for the petitioner and has prayed for dismissal of the instant revision petition at this preliminary stage on the ground that concurrent findings have been given by the two Courts below and no illegality, infirmity or irregularity and misreading or non-reading of evidence has been made by the learned Courts below.

4. Arguments heard. Record perused.

5. The main stress of the learned counsel for the petitioner is on the point that after submission of the decision by the Umpire/Arbitrator, the learned trial Court has not afforded opportunity to the parties to submit their objections on the said decision. In this regard, when record made available has been consulted, it is evident that the learned trial Court provided one fair opportunity to the parties to submit their objections, if any, on the decision of the Umpire/Arbitrator, appointed with the consent of the parties, but the parties failed to submit their objections, so the learned trial Court, by presuming that the parties had no objections on the said decision of Umpire/Arbitrator, made basis the same and converted the preliminary decree into final decree in favour of the respondent/plaintiff; therefore, the findings of the learned trial Court in the impugned order regarding modification of the Award by mentioning that the decree could be satisfied from the share of the petitioner/defendant, are well reasoned especially when the Umpire/Arbitrator was appointed on the request and statement of the present petitioner/defendant. The learned Appellate Court has also rightly considered the facts of the case and evidence brought on record. It is an admitted fact that the parties started a joint venture in the shape of Ice Factory and after its dissolution the amount in dispute was found outstanding against the petitioner/defendant and the present petitioner/defendant himself offered to appoint Umpire/Arbitrator to settle the dispute inter se him and the respondent/plaintiff and when the said Umpire/Arbitrator made decision after considering all the facts, obviously put before him, it is the present petitioner who is not agreeing with the same. In revisional jurisdiction the Court has only to see, whether any irregularity, illegality and wrong exercise of jurisdiction vested in a Court has been committed. Section 115 of, C.P.C. is reproduced below for ease of reference:--

"115. Revision.--(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears:--

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit."

It is well settled by now that the High Court cannot interfere in the finding on question of law or facts, howsoever, erroneous in exercise of its revisional jurisdiction. This view has been fortified by case of Hakim ud Din through L.Rs. & others vs. Faiz Bukhsh & others (2007 SCMR 870), in which it has been held that, "It is established proposition of law that finding on questions of law or fact howsoever, erroneous the same may be recorded by a Court of exercise of its revisional jurisdiction under Section 115, C.P.C., unless such findings suffer from jurisdictional defect, illegality or material irregularity." Similar view has been reiterated in case of "Abdul Aziz vs. Sheikh Fateh Muhammad" (2007 SCMR 336) But in the present case, no such occasion has arisen at the trial as well as appellate stage, so this Court finds no illegality, irregularity or infirmity, wrong exercise of jurisdiction vested upon the Courts below while passing the impugned order, judgment and decrees, respectively; therefore, same do not call for any interference by this Court while exercising revisional jurisdiction.

1. In view of the above said discussion, when the petitioner/ defendant has failed to establish any illegality, irregularity or infirmity in the findings of Courts below, it can be safely observed that the same are result of appraising the evidence in true perspective, applying of judicial mind, rightly interpreting the law and upto the dexterity, therefore, same do not call for any call for any interfere by this Court. Resultantly, by placing reliance on the judgments supra, this civil revision is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2014 Lahore 222 (DB)

Present: Ijaz-ul-Ahsan and Shahid Bilal Hassan, JJ.

LT. COMMANDER (RETIRED) NAEEM JAVED--Petitioner

versus

UNIVERSITY OF THE PUNJAB, etc.--Respondents

W.P. No. 6763 of 2008, heard on 18.7.2013.

Punjab University Act, 1973--

----S. 15(3)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Appointment as teacher on contract--Termination of contract on one month notice--Being contract employee cannot file writ petition--Relationship of university with its employees is that of master and servant and not regular employees--Validity--Petitioner was not discriminated in any manner as the termination of contract of petitioner was without any stigma--Admittedly being a contract employee, relationship between petitioner and University is governed by the principle of Master and Servant' and the service is not governed by any statutory Rules--Petition is not competent under the law as the matter where services of an employee are not governed by any statutory rules, the principle ofMaster and Servant' is applicable and therefore, writ petition is not competent--There is no merit in writ petition--Constitutional jurisdiction of High Court as he is not governed by any statutory rules, rather his services are governed by principle of "Master and Servant"--Petition was dismissed. [Pp. 225 & 230] A, B, D & E

Master and Servant--

----Employees of Punjab Universities--Status of--Status of the employees whose service is not governed by any statutory rules, the principle of "Master and Servant" is applicable and a writ petition was not competent. [P. 228] C

Mr. TariqMasood Khan, Advocate for Petitioner.

Mr. Muhammad Shahzad Shaukat, Advocate/Legal Advisor University of Punjab, Lahore for Respondents.

Date of hearing: 18.7.2013.

Judgment

Shahid Bilal Hassan, J.--Through this constitutional petition, the petitioner has sought indulgence of this Court while calling in question the office order dated 11.04.2008 issued by the University of the Punjab, Lahore, relieving the petitioner from the University services with immediate effect in compliance of directive dated 10.04.2008 issued by the Services and General Administration Department, Govt. of Punjab, Lahore, which according to the petitioner, are without lawful authority and of no legal effect.

1. Factually speaking, stance of the petitioner in this writ petition is to the effect that he joined the College of Information Technology of the respondent/University as a teacher on contract basis in the year 2001, where-after he was appointed as Assistant Professor in the same Institute and ever since he had been serving the University. Thereafter, vide office Order No. 97-84-Est.II dated 10.01.2008, the petitioner was appointed as Director Administration on contract basis against a vacant post with immediate effect on terms and conditions mentioned in the said office order issued by the respondent/University. After a period of approximately three months, the petitioner received office order issued by the Deputy Registrar (Admin-II) Bearing No. 10873-82/Est.II dated 11.04.2008 on the basis of which and while complying with the directive from the Deputy Secretary (Services), Govt. of the Punjab, Services and General Administration Department, Lahore vide Letter No. SI-2-35/2000 dated 10.04.2008, the Vice Chancellor of the University in exercise of powers vested in him under Section 15 sub-Section 3 of the Punjab University Act, 1973 relieved the petitioner from the University services with immediate effect while holding that the petitioner would be entitled to one month's salary in lieu of one month quitting of service notice as per terms and conditions of his appointment. The said office order dated 11.04.2008 has been called into question by the petitioner through this constitutional petition.

2. Learned counsel for the petitioner has contended that the impugned order of the respondent/University in compliance with the directive of the Govt. of the Punjab dated 10.04.2008 is not sustainable under any circumstances as the University is not under the administrative control or supervision of the Services and General Administration Department of the Govt. of Punjab and resultantly directive issued by the Govt. is not binding on the University being governed by an independent statute i.e. University of the Punjab Act, 1973 and Rules & Regulations in this regard. The learned counsel further adds that the petitioner could not have been relieved from his services in terms of the procedure laid down in the University of the Punjab Act, 1973 which attracted the petitioner's case. Adds that for all intents and purposes the petitioner was appointed on contract basis for a period of one year and under no circumstances services of the petitioner could be relieved after a period of two and half months & without assigning any reason in this regard. Learned counsel has contended that the order of relieving the petitioner is unlawful as the University ought to have issued notice to the petitioner which needful was not done and no opportunity of audience was given to the petitioner by the University authorities. Adds that the petitioner has obtained pre-mature retirement from the Navy and as such the petitioner has not attained the age of superannuation being born in the year 1955. Learned counsel for the petitioner has also drawn the attention of this Court to the directive which, according to the learned counsel, does not apply to the officers retired from the Navy. Relies on case of Munshi Tahir Zahoor vs. Additional Secretary to Chief Justice (2006 PLC (SC) 101); Zonal Manager U.B.L and another vs. Mst. Parveen Akhtar (PLD 2007 (SC) 298); and Pakistan International Airlines Corporation through Chairman vs. Shehzad Farooq Malik (2004 SCMR 158).

3. While defending this petition by refuting the stance of the petitioner, the learned counsel for the respondent/University has admitted that the petitioner was appointed as a teacher in the College of Information Technology of the University, where-after the petitioner was appointed as Assistant Professor in the same Institute. All the said appointments were on contract basis and finally vide order dated 10.01.2008 issued by the Vice Chancellor of the University, the petitioner was appointed as Director Administration on contract basis with terms and conditions narrated in the said letter of appointment. It is the stance of the respondent that contract appointment of the petitioner could be terminated at any stage on one month's notice or pay in lieu thereof and pursuant to the directive dated 10.04.2008 and shift in the University Policy with regards to the contract services of the petitioner alongwith other employees who were also employees on contract basis, were relieved on payment of one month pay in lieu of the requisite notice. Adds that the services of 34 contract employees including the petitioner were terminated who were serving the University after retiring from their concerned departments. It is the defence of the respondent/University that the petitioner's termination of contract on one month notice or pay in lieu was duly in accordance with law and terms & conditions which were admitted by the petitioner. The petitioner being a contract employee cannot file this writ petition, which according to the University, merits dismissal. Adds that the relationship of the University with its employees is that of master and servant and even otherwise the petitioner was not a regular employee of the respondent/University; therefore, he cannot avail the remedy so as to get his grievance redressed, if any, through this constitutional petition. It has been maintained by the University that the directive dated 10.04.2008 holds field and the same was complied with and even otherwise University had shifted its policy as it started resorting to regular services after observing due formalities in accordance with its Rules. The respondent has also stated that though there is a Statue that is governing the University but as a natural course, it is following the directions of the Provincial Govt. from time to time. The petitioner, therefore, according to the University has been relieved after following the requisite and lawful procedure. Lastly it has been prayed that this petition be dismissed.

4. We have heard both the learned counsels at length and perused the record made available before us.

5. Admittedly, the petitioner retired from service of Pakistan Navy on 24.08.1997 and was given various contract appointments by the University/respondent. On 10.01.2008, the petitioner was appointed as Director Administration by the Vice Chancellor of the University in exercise of his emergency powers. The terms and conditions contained in Office Order dated 10.01.2008 contained the following conditions:--

6. The appointment is available for contract period only and terminable on one month's quit service notice or pay in lieu thereof from either side.

7. ... ... ... ...

8. ... ... ... ...

9. ... ... ... ...

10. ... ... ... ...

11. The appointment will be for one year renewable contract.

The respondent/University on 11.04.2008 invoked the termination clause, ex facie, in compliance with the Government of the Punjab's letter dated 10.04.2008 and resultantly the petitioner was relieved from the University services subject to payment of one month's salary in lieu of the requisite notice. The University has filed its report and para-wise comments to the writ petition and has maintained that the petitioner was not discriminated in any manner as the termination of the contract of the petitioner was without any stigma. Furthermore, admittedly being a contract employee, the relationship between the petitioner and the University is governed by the principle of `Master and Servant' and the said service is not governed by any statutory Rules.

1. While opting this defence, the learned counsel for the University has contended that this petition is not competent under the law as the matter where services of an employee are not governed by any statutory rules, the principle of `Master and Servant' is applicable and therefore, writ petition is not competent. In support of this primary defence regarding maintainability reliance has been placed in the case of Abdul Rashid Khan vs. Registrar Bahauddin Zakaria University Multan and others (2011 SCMR 944), wherein it has been held that, "Arts. 185(3) & 199--Constitutional jurisdiction of High Court--Educational institution--Non-statutory rules--Scope--petitioner was employee of University and invoked constitutional jurisdiction of High Court for implementation of office order in his favour with regard to vice versa transfer--Constitutional petition and Intra-Court Appeal filed by petitioner were concurrently dismissed by High Court--Validity--University had no statutory rules, therefore, petitioner had no remedy before High Court under Art.199 of the Constitution--Supreme Court declined to take any exception to concurrent findings of two forums of law--Leave to appeal was refused."

In case of Ijaz Hussain Suleri vs. The Registrar and another (1999 SCMR 2381), it has been held that, "S. 11-A---Constitution of Pakistan (1973), Art. 185(3)--Employees of University--Status--Such employees were neither holders of statutory posts nor their terms and conditions were governed by statutory rules--High Court had rightly held that the Constitutional petition was not maintainable inasmuch as original order of the Chancellor was susceptible to examination in revision as contemplated by S.11-A of University of Punjab Act, 1973--Leave to appeal was refused in circumstances."

In case of Usman Ghani, etc. vs. Islamia University, etc. (PLJ 2012 Lahore 636-Bahawalpur Bench Bahawalpur), it has been held that, "Ss. 15(3) & 11-A--Constitution of Pakistan, 1973, Art, 199--Constitutional Petition--Duties and power of Syndicate--Appointment as Assistant Librarian on contract basis--Petitioners were neither holding statutory posts nor their terms and conditions were governed by Statutory Rules--Lack of invoke constitutional jurisdiction of High Court--Validity--There is no cavil to proposition that V.C. in exercise of his powers in terms of S. 15(3) of Act has an authority to take any action, therefore, initial appointment of respondent on contract basis made by him cannot be termed as an order passed without any lawful authority--If aggrieved of any such order of authority could have availed efficacious remedy of revision before Chancellor--Writ petition was not maintainable when adequate remedy of revision U/S 11-A of Act was available--Petitioners were neither holders of any statutory post nor their terms and conditions of their service were governed under Statutes, Regulations or Rules issued by Senate of University for its internal use, they lack any locus standi to invoke constitutional jurisdiction of High Court--Petition was dismissed."

In case of Pakistan Telecommunication Co. Ltd. through Chairman vs. Iqbal Nasir and others (PLD 2011 Supreme Court 132), it has been held that, "---------Employees of Pakistan Telecommunication Corporation Limited were governed by principle of "Master and servant" and in absence of statutory rules, constitutional petitions filed by employees were not maintainable--All employees having entered into contract of service on the same or similar terms and conditions had no vested right to seek regularization of their employment, which was discretionary with the master--Master was within his right to retain or dispense with services of any employee on the basis of satisfactory or otherwise performance---Contract employees had no right to invoke constitutional jurisdiction, where their services were terminated on completion of period of contract--As all respondents were covered under the definition of workman, they were entitled to one month's notice or salary in lieu thereof, as permissible to them under the rule of master and servant--Supreme Court set aside the judgment passed by High Court in favour of contract employees of Pakistan Telecommunication Corporation Limited--Appeal was allowed."

In case of Pakistan International Airline Corporation and others vs. Tanveer-ur-Rehman and others (PLD 2010 Supreme Court 676), it has been held that, "..... If any adverse action was taken by employer in violation of statutory rules, only then such action should be amenable to constitutional jurisdiction but if such action had no backing of statutory rules then principle of Master and Servant' would be applicable and such employees had to seek remedy permissible before the Court of competent jurisdiction--Rules laid down in the judgments of Supreme Court in Muhammad Mubeen-ud-Salam's case, reported as PLD 2006 SC 602 and Muhammad Idreees's case, reported as PLD 2007 SC 681 would be applicable to ordinary person filing petition by invoking jurisdiction of High Court under Art.199 of the Constitution and he had to approach the Court within a reasonable time--Although no definition of the expression "reasonable time" was available in any instrument of law, however the Courts had interpreted it to be ninety days--Pakistan International Airlines Corporation was performing functions in connection with the affairs of the Federation but since services of employees were governed by the contract executed between both the parties and not by statutory rules framed under S.30 of Pakistan International Airlines Corporation Act, 1956, with prior approval of Federal Government, therefore, they would be governed by the principle ofMaster and Servant'--Appeal was disposed of accordingly."

In I.C.A. No. 282 of 2010, titled University of the Punjab through Vice Chancellor, etc. vs. Muhammad Imran & others, this Court observed that, "The next controversy pertains to the seniority inter se the employees of the University, Admittedly, the employees of the University were neither holder of statutory posts nor their terms and conditions were governed by statutory rules as already declared by the Hon'ble Supreme Court of Pakistan in cases reported as 1992 SCMR 1093, 1999 SCMR 2381 and 2010 SCMR 1484. Therefore, the impugned judgment is not sustainable in the eye of law whereby the learned Single judge accepted the writ petition and directed the appellants to reckon the seniority of the respondents from the date of initial appointment and seniority list dated 13.01.2009 and consider them for promotion as Senior Clerk in preference to those who are junior to them. Moreover, the respondents have alternate remedy available with them."

In case of University of the Punjab, Lahore & 2 others vs. Ch. Sardar Ali (1992 SCMR 1093), it has been held that, "The scheme of the University of the Punjab Act 1973 otherwise does not show that the Rules of Efficiency and Discipline or the conditions of service of the employees are governed by the statutory rules. In the absence of it, sub-section (8) of Section 11 of the Act which relates to the manner in which the Chancellor shall act in the discharge of his duties, does not make the conditions of service of the employees statutory. All that sub-section (8) of Section 11 provides is that the Governor shall be bound by the advice of the Chief Minister as he is bound to discharge of his functions under Article 105 of the Constitution of the Islamic Republic of Pakistan. Further, such an incorporation by reference on the strength of a statutory provision of a constitutional provision does not raise the status of the statutory provision to that of a constitutional provision."

In case of Dr. M. Afzal Beg vs. University of the Punjab and others (1999 PLC (C.S.) 60), it has been held that, "Petitioner was governed by non-statutory rules and principle of master and servant was attracted in his case. Constitutional jurisdiction of High Court under Article 199 could not be invoked."

1. It has categorically been held in all the above cases that the status of the employees whose service is not governed by any statutory rules, the principle of "Master and Servant" is applicable and a writ petition was not competent. Moreover, in the judgment reported as "Federation of Pakistan vs. Muhammad Azam Chattha (2013 SCMR 120)" the Hon'ble Supreme Court of Pakistan has categorically held that where the services of contract employee are terminated before time, he can, at best, claims damages to the extent of unexpired period of his service. The ground of discrimination urged by the learned counsel for the petitioner is baseless as it has not been substantiated in any respect. The University in its comments, has categorically maintained that it applied the Government of Punjab's letter dated 10.04.2008 across the board and services of all the employees covered thereby were dispensed with. No reason to disbelieve the stance of the University is discernable from the record; therefore, the ground so urged has no substance. It has also been urged on behalf of the petitioner's side that the University being an autonomous body was not bound by the directive issued by the Government of Punjab. In this regard, it suffices to say that it is for the University Administration to decide whether they were to follow the directions given by the Government of Punjab. University Authorities, in their wisdom opted to do so. It being a step in the right direction in as such as all postings/appointments should normally be made on regular basis after the publication and observance of necessary formalities no fault could be found therewith. Even otherwise the Hon'ble Supreme Court of Pakistan has also expressed its displeasure vis. Re-employment of retired employees. Furthermore, the re-employment of retired employees on contract basis has been deprecated by the Hon'ble Supreme Court of Pakistan in the judgments reported as Suo Motu case No. 24 of 2010 and Human Rights Cases Nos. 57701-P, 57719-G, 57754-P, 58152-P. 59036-S, 59060-P, 54187-P & 58118-K of 2010 reported as PLD 2011 Supreme Court 277, in which it has been held that, "S. 14--Estacode, Vol. I (2007 Edn.) Instructions--Employment after retirement--Record in the present case, showed that prima facie, while re-employing the retired civil servants/persons in the police department the provisions of law i.e, S.14 of the Civil Servants Act, 1973 as well as Instructions contained in Estacode, Vol. I, Edn. 2007 under the heading "Re-employment" and the judgments of the superior Courts on the subject were not considered/adhered to--Effect--Held, for establishing rule of law and Constitutionalism, it was necessary that the relevant provisions should be followed strictly in letter and spirit otherwise it would not be possible to provide an effective machinery in law particularly in Police Department to ensure law and order, so the peace in the country, at the same time to avoid violation of the relevant provisions of law which was tantamount to blocking the promotion of the Officers who had also served in the Forces and were waiting for their promotion but they were not getting chance because of the re-employment/contract awarded to the retired Officers--Such was not only in the Police Department but for the purpose of achieving good governance; the same principle should be followed and strictly applied in other Departments as well-- Supreme Court observed that Attorney General shall take up the matter with the Government/Competent Authority so that it may take necessary steps to rectify if any omission had been committed--Attorney General shall convey present order to the Secretary, Establishment Division and the Chief Secretaries of the Provinces to ensure that if any civil servant or other person who had been re-employed, his case be also examined in terms of the provisions of law and both Federal and Provincial Governments should take necessary steps to ensure that re-employment or employment on contract basis were not made in violation of the relevant law."

In 2011 SCMR 582, it has been held that, "5.14--Employment after retirement--Appointment on contract basis are not allowed to be continued in terms of S.14 of the Civil Servants Act, 1973 and the Policy, unless the conditions specified therein are satisfied."

1. So far as the arguments of the learned counsel for the petitioner that the petitioner having obtained premature retirement from Pakistan Navy was not governed by the Government of Punjab's letter dated 10.04.2008, is concerned, suffice is to say that the letter issued by the Government of Punjab is relatable to re-employment of retired officers/officials and does not distinguish between any category of such retired persons. This ground, therefore, has also no merits.

2. The ground of violation of natural justice is also insignificant firstly because the petitioner was not being stigmatized in any manner and secondly because the right of hearing is always to be linked by the merits of the case and is, therefore, not a technical right. Admittedly, there is no merit in the petitioner's writ petition and therefore, safer reliance can be placed on the law laid down by the Hon'ble Apex Court in "Justice Khurshid Anwar Bhinder and others vs. Federation of Pakistan and another (PLD 2010 SC 483) and "Abdul Qadir and others vs. The settlement Commissioner and others (PLD 1991 SC 1029), wherein it has been held that the petitioner has no case even on this score.

3. With utmost respect to the case law referred to by the learned counsel for the petitioner, the same has no relevance to the facts and circumstances of the present case, rather same is distinguishable.

4. For what has been discussed above, we find that the petitioner cannot invoke the constitutional jurisdiction of this Court as he is not governed by any statutory rules, rather his services are governed by principle of "Master and Servant". Therefore, relying on the judgments (Supra), the instant writ petition has no force, same is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 230 [Bahawalpur Bench Bahawalpur]

Present: Shahid Bilal Hassan, J.

Mst. ZUBAIDA QURESHI, etc.--Petitioners

versus

IQBAL HUSSAIN QURESHI, etc.--Respondents

Civil Revision No. 146 of 2009, decided on 22.11.2013.

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

----O. XXI, R. 58--Examining of witnesses on commission in course of proceedings--Validity--Proceedings under Order XXI Rule 58 of CPC cannot be subject matter of revision as such an order can be challenged by a separate suit, unless there are exceptional circumstances. [P. 234] A

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

----S. 115--Civil revision--Scope of--Maintainability--Revision petition is competent under the law, as an order granting permission to record evidence through commission or declining the same falls within the category of case decided for the purpose of Section 115, CPC. [P. 236] B

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

----O. XXVI, R. 1--Recording statement through local commission--Unmarried old parda nasheen ladies and residing beyond jurisdiction of trial Court--Since the petitioners are unmarried women, they may not be having any male member to join them as the male members of the petitioners' family happen to be respondents, being their real brothers in instant civil revision and are at daggers drawn with the petitioners. [P. 236] C

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

----O. XXVI, R. 4 & S. 115--Application to record statements through local commission, was declined by trial Court--Another application to extent of witnesses be recorded through local commission already appointed at Karachi--High Court cannot interfere in revision even if order assailed was wrong--Evidence on commission to record to old women was allowed--Judicial Policy--Provisions of Order XXVI, Rule 4, CPC are permissive as every case is to be seen and considered on its on merits--Since the petitioners are admittedly old pardanashin ladies, permanently living in Karachi which is at a distance of approximately 1000 km from the Courts at Chishtian, trial Court has already allowed (seven) witnesses of the petitioners, to be recorded through local commission at Karachi at expense of the petitioners, the petitioners are residing outside the jurisdiction of trial Court and admittedly if the petitioners' evidence is recorded at Karachi it would save reasonable time--Order passed by trial Court to extent of declining the petitioners to get their statements recorded through local commission at Karachi, is set aside and reversed by allowing the petitioners to get their statements recorded through Local Commission at Karachi--Petition was accepted. [P. 238] D

Sardar Muhammad Hussain Khan, Advocate for Petitioners.

M/s. AbdulQayyum Awan and Hameed-uz-Zaman, Advocates for Respondents.

Date of hearing: 22.10.2013.

Order

Through this revision petition, the petitioners have called into question order dated 21.3.2009 passed by the learned Civil Judge, Chishtian whereby an application to record their statements through Local Commission was declined by the learned trial Court in a suit for declaration etc filed by them against the respondents while allowing the statements/evidence of the other witnesses of the petitioners to be recorded through local Commission at Karachi.

1. Factually speaking, the petitioners on 25.6.2007 filed a suit for declaration and permanent injunction against the respondents in the Court of Civil Judge, 1st Class Chishtian praying therein that they be declared as owners in possession of the disputed property (detail mentioned in the head note of the plaint), on the basis of an oral gift made in their favour by Mst. Kalsoom Ahmed alias Umme Kalsoom their real mother who died on 11.6.2003 and in furtherance also executed a memorandum of acknowledgement of gift dated 28.2.2003 separately and the defendants have no concern whatsoever with the title/ownership of the said property in dispute. In response to the said suit defendants appeared before the learned trial Court by filing their written statements. Defendant No. 3 filed a conceding written statement whereas Defendants No. 1 and 2 contested the suit and on the basis of divergent pleadings, the learned trial Court framed issues and was pleased to fix the case for recording of evidence of petitioner's side.

2. The petitioners filed an application under Order XXVI Rule 4 read with Section 151, CPC before the learned trial Court so as to allow examination of their witnesses who were four in number through local commission as they were statedly permanently resident of Karachi. The said application of the petitioners was allowed by the learned trial Court vide order dated 17.5.2008 with a direction to the concerned local commission to record the evidence of the four stated witnesses of the petitioners.

3. The petitioners preferred another similar application before the learned trial Court so as to include three witnesses alongwith the plaintiffs/petitioners for the purposes of recording their statements through local commission already appointed at Karachi. The said application was vehemently opposed by the respondents and vide order dated 25.3.2009 the application of the petitioners to the extent of three witnesses was accepted and declined to the extent of petitioners by the learned trial Court while observing that the major part of suit property is situated at Karachi but the petitioners opted to file civil suit before the learned Courts at Chishtian and in this view of the matter they cannot claim the desired facility after having opted Courts at Chishtian on their own.

4. The learned counsel for the petitioners has contended that the order of learned trial Court rejecting the stance of the petitioners for recording their evidence is altogether illegal, arbitrary and based on material irregularity. Adds that the reason for disallowing the petitioners' application is altogether against the principles of natural justice, as the petitioners are old aged Parda Nasheen Ladies belonging to a highly respectable family, they are permanently resident of Karachi which is about 1000 kilometers away from the learned trial Court at Chishtian and lastly that since the local commission has already been appointed for recording evidence of remaining seven witnesses, therefore, it would be in the interest of justice to direct the learned local commission to record the statements of the petitioners at their expense. Relies on Muhammad Ismail v. District Judge, Sargodha and 4 others" (1981 CLC 361), "Babu Gulab Rai Ghutghutia v. Mahendra Nath Sreemani" (AIR 1935 Patna 220), "Fariddin Ahmed v. Abdul Wahab" (AIR 1926 Patna 277). "Mrs. Zohada Beputn Saheha v. Messrs. Haji Dawood Ayed, Firm and others" (AIR 1940 Patna 437), "Messrs National Insurance Corporation v. Messrs St. Thomas Shipping Co. Inc. Panama and others" (1990 ALD 672(1), and "Iqbal M. Hamzah v. Gillette Pakistan Ltd." (2011 YLR 277).

5. On the other hand, the learned counsel appearing on behalf of the respondents has opposed this civil revision by contending therein that the impugned order passed by the learned Civil Judge is totally in accordance with law. Adds that the learned trial Court has already shown grace and has allowed the application of the petitioners firstly on 17.5.2008 whereby evidence of four witnesses was allowed to be recorded by the learned local commission and evidence of three other witnesses was allowed by the learned trial Court to be recorded through commission, on the second application, the petitioners cannot be allowed to get their statements recorded through local commission as it was the petitioners who opted the Courts at Chishtian, therefore, after having choice of forum the petitioners cannot be allowed to ask for their examination elsewhere other than the Courts at Chishtian. Lastly adds that this Court cannot interfere under Section 115 of, CPC even if the impugned order of the learned trial Court is wrong and substantial justice has been done. Relies on "Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others" (PLD 1970 Lahore 412), "Fariddin Ahmed v. Abdul Wahab" (AIR 1926 Patna 277), and "Syed Ali Muhammad v. Syed Mir Ahmad Shah and another" (PLD 1951 Baluchistan 23).

6. Arguments heard. Record available on the file perused.

7. The respondents have contested the present civil revision primarily on two grounds. Firstly, it is the stance of the respondents that this civil revision against the impugned order is incompetent as under Section 115 of, CPC this Court cannot interfere in revision even if the order assailed is wrong. In this regard the respondents have relied in the case of "Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others" (PLD 1970 Lahore 412) and "Sayed Ali Muhammad v. Syed Mir Ahmad Shah and another" (PLD 1954 Baluchistan 23). The second objection of the respondents' side is to the effect that the order impugned has been passed by the learned trial Court strictly in accordance with law and that since the petitioners had choice of forum, therefore, they should not be allowed to get their testimony recorded elsewhere other than in the Court where they have instituted their suit.

8. The first question at this stage to be considered by this Court is as to whether civil revision against the impugned order is maintainable and this Court can interfere into the vires of the same in terms of Section 115 of, CPC. The learned counsel appearing on behalf of the respondents' side has relied in the case of "Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others" (PLD 1970 Lahore 412), wherein this Court has shown reluctance in interfering in revision even if order of Court below is wrong but substantial justice if otherwise has been done. The case of "Sayed Ali Muhammad v. Syed Mir Ahmad Shah and another" (PLD 1954 Baluchistan 23), has also been referred to in this regard where it has been observed that an order refusing to examine certain witnesses on commission cannot be subject to revision if the proceedings themselves are not open to revision. In the former case, the matter in issue was with regards to dismissal of a civil suit under the provisions of Order IX Rule 8, CPC as the case was not fixed for hearing but for determining some interlocutory matter only. In the latter case, the question of examining of witnesses on commission in course of proceedings under Order XXI Rule 58 of, CPC was discussed and was held that proceedings under Order XXI Rule 58 of, CPC cannot be subject matter of revision as such an order can be challenged by a separate suit, unless there are exceptional circumstances. Its note worthy that, it has also been laid down in the said judgment that the provisions of Order XXVI Rule 4 of, CPC do not apply to execution proceedings. In this view of the matter both the judgments referred to by the respondents' side cannot be of any help as they are not applicable in the present case which primarily revolves around the provisions of Order XXVI of, CPC in a pending civil suit.

9. In the case of "International Credit and Investment Company (Overseas) Ltd. and another v. Attock Oil Company Ltd., and another" (PLD 1997 Lahore 480), a similar question came up for hearing before this Court and it was held as under:--

"The impugned order suffers from illegality causing miscarriage of justice and is not sustainable. An order of a Civil Court under the provisions of Order XXVI, Rule 5, C.P.C., declining to appoint a Commission is a case decided and is amenable to the revisional jurisdiction of this Court under Section 115, C.P.C. In the case of Rehman Dad and another v. Major/Raja Sajawal Khan etc 1970 SCMR 350; Muhammad Ismail v. District Judge, Sargodha and 4 others 1981 CLC 361 (Lahore); Begum Farkhanda Akhtar and others v. Capt. M. Asif Akhtar and others 1995 CLC 75 (Lahore); M.J. Sheth & Co. v. Ramiza Bi and another AIR 1938 Mad. 646; N.P.Subbiah Pillai v. M. Nellayappa Pillai AIR 1993 Mad 366; Hukumal v. Manghoomal AIR 1953 Ajmer 27; Amina Bivi v. Abdul Jabbar AIR 1979 Mad. 121 and Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam AIR 1986 Mad. 33, it was held that an order refusing to appoint a Commission under Order 26, C.P.C. was revisable under Section 115, C.P.C. A similar view has been taken in the case of Mrs. Zohada Begum Saheba v. Messrs Haji Dawood Ayed Firm and others AIR 1940 Pat. 437. In the cases of Kumar Sarat Kumar Ray v. Ram Chandra Chatterjee AIR, 1922 Cal. 42 and Akbar Ali Khan v. Herbet Francis 1925 Pat. 125. It was further held that an application for appointment of Commissioner under Order XXVI, Rule 5, C.P.C. made by a defendant was to stand on entirely different footing than application made by a plaintiff and that the revision was competent in such cases. It may also be! mentioned here that the expression "case decided" does not mean the decision of the whole matter in issue or civil suit and the term has been interpreted to include even interlocutory orders. Reliance can be placed on the cases of Bibi Gurdevi v. Ghaudhri Muhammad Bakhsh AIR 1943 Lah. 65 (by a Full Bench of seven Judges), Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others PLD 1973 SC 507; Chaudhry A. Mad Din v. Australasia Bank Ltd. Bhalwal 1970 SCMR 507; Bahadur Shah and 2 others v. Sharaf and 9 others PLD 1973 Lah. 513 and The State v. Anayatullah PLD 1983 FSC 191.

Similar view has been given in the case of "Muhammad Ismail v. District Judge, Sargodha and 4 others" (1981 CLC 361), in which it has been held as under:

"S. 115--Revision, scope of--Substantial question, having bearing on merits of suit, decided by judicial approach--such order amounts to a case decided as contemplated by S. 115--Application for appointment of a Local Commissioner judicially determined by Civil Court--Held, a case decided for purpose of S. 115--Civil Procedure Code (V of 1908) O. XXVI, R. 9."

In the light of what has been discussed hereinbefore and following the case "International Credit and Investment Company (Overseas) Ltd., and another (supra), this revision petition is competent under the law, as an order granting permission to record evidence through commission or declining the same falls within the category of case decided for the purpose of Section 115, CPC.

1. Now coming to the second aspect of the case as to whether in the given peculiar circumstances of the case the petitioners could be denied the right to give their statements/evidence before the Local Commission or not. Admittedly, the respondents are real brothers of the petitioners. The petitioners are permanently resident of Karachi for a long time which fact has not been denied by the respondents' side. The stance taken up by the petitioners in their application is to the effect that since they are old Parda Nasheen Ladies, it will be difficult for them to travel all the way from Karachi to the concerned trial Court at Chishtian which is approximately at a distance of 1000.k.m. on regular dates of hearing, therefore, they be allowed to get their statements/testimony recorded before the local Commission who has already been appointed in this case by the learned trial Court while vide order dated 17.5.2008 and 25.3.2009 whereby the learned trial Court was pleased to allow their applications and resultantly appointed a local Commission so as to record the testimony of seven witnesses of the petitioners at Karachi. The said order dated 25.3.2009 which was partially allowed to the extent of recording statement of three witnesses of the petitioner at Karachi whereas the request of the petitioners to their extent was declined. It is also the stance of the petitioners that in case they are allowed to get their statements recorded at Karachi, quick disposal is likely to take place. He has further contended that since the other seven witnesses have been allowed to get their statements recorded at Karachi at the expense of the petitioners so they also be awarded similar treatment.

2. The stance of the petitioners to the effect that they are unmarried old Parda Nasheen ladies and residing at Karachi which is at a distance of approximately 1000.k.m. beyond the jurisdiction of the learned trial Court has not been denied by the respondents. It is important to mention here that since the petitioners are unmarried women, they may not be having any male member to join them as the male members of the petitioners' family happen to be respondents, being their real brothers in this civil revision and are at daggers drawn with the petitioners. Another aspect to the case is to the effect that after completing one set of evidence at Karachi the second set of evidence, that is, the testimony of the petitioners as proposed will take place at Chishtian is likely to consume a reasonable time and the same is against the norms of natural justice as under the Judicial Policy expeditious and quick disposal of cases is always encouraged by Courts. The stance taken up by the petitioners in the given circumstances of this case seems to be a very reasonable. In the case of "Mst. Baggi v. Mst. Jan Begum and 7 others" (1985 CLC 1573), in which it has been held as under:--

"O. XXVI, Rule 1--Commission to examine witness--Powers of Court to issue--Person an old woman, suffering from infirmity caused by fracture of her left femur, requisite conditions contained in O.XXVI, R.1, C.P.C., held, completely fulfilled--such powers entitled to normal facility provided by law in circumstances."

In another case "Fariduddin Ahmed v. Abdul Wahab" (AIR 1926 Patna 277), in which it has been held "that commission should be issued for his examination outside the jurisdiction of the Court." In a similar case of (Babu) Gulab Bai Ghutghutia v. (Babu) Mahendra Nath Sreemani" (AIR 1935 Patna 220), it was held that "except under very exceptions circumstances get commission appointed for his examination--Plaintiff having chosen forum but risky to undertake journey to such forum from place of residence -- Held commission for his examination could be appointed on his paying costs for defendant for making arrangement for cross-examination.--Where the plaintiff has selected his own forum but at the same time it was risky to compel him to come to such place for examination from place of his residence, a commission can be issued for his examination but he must pay the defendant sufficient costs to enable the latter to make adequate arrangements for his cross-examination."

1. On the question of distance wisdom is drawn from "Mrs. Zohada Begum Saheba v. Messrs Haji Dawood Ayed, Firm and others" (AIR 1940 Patna 437), in which it has been held that a defendant in a suit applied for the issue of commission for the examination of her husband as a witness on her behalf At the time of application the husband was serving as Deputy Magistrate more than 200 miles from the Court where the suit was pending. He was unable to obtain leave to proceed to the Court. The Court refused the application: Held that the Court acted with material irregularity in the exercise of its jurisdiction in refusing the application.

In another case "Messrs National Insurance Corporation v. Messrs St. Thomas Shipping Co. Inc. Panama and others" (1990 ALD 672(1), in which it was held that "O. XXVI, Rule 5--Examination of witnesses on Commission--Provision of examining a witness on Commission, would be fully attracted where such witness was living beyond the jurisdiction of Court and nature and circumstances were such that they could nor be made to travel from for off distances to Court."

In another judgment rendered in the case of "Iqbal M. Hamzah v. Gillettte Pakistan Ltd." (2011 YLR 277), in which it has been held that "defendant had no lucid justification to oppose the application as taking steps for early decision in the matter and recording evidence on Commission to save time of parties could not be termed to be erroneous or an act against principle of natural justice--It was in the interest of both the parties if they would have come out of litigation as early as possible--Plaintiff was ready to bear expenses of Commission and no prejudice would be caused to defendant--High Court allowed recording of evidence before Local Commissioner--Application was allowed in circumstances."

1. In the above mentioned cases, evidence on commission has been allowed to old women, to persons residing outside the jurisdiction of the Court, to persons for whom its risky to come to such place for examination from the place of his residence subject to payment of costs for arrangements, to persons serving more than 200 miles away from the Court and lastly for the purposes of early disposal of cases as per judicial policy, therefore, it can safely be concluded that the provisions of Order XXVI Rule 4, CPC are permissive as every case is to be seen and considered on its on merits keeping in view its facts. Since the petitioners are admittedly old Pardanashin ladies, permanently living in Karachi which is at a distance of approximately 1000 km from the Courts at Chishtian, the learned trial Court has already allowed 07 (seven) witnesses of the petitioners, to be recorded through local commission at Karachi at the expense of the petitioners, the petitioners are residing outside the jurisdiction of the learned trial Court and admittedly if the petitioners' evidence is recorded at Karachi it would save reasonable time, so in the given peculiar circumstances the case, and while relying on the judgments (supra), this revision petition is accepted and the impugned order dated 25.3.2009 passed by the learned trial Court to the extent of declining the petitioners to get their statements recorded through Local Commission at Karachi, is set aside and reversed by allowing the petitioners to get their statements recorded through Local Commission at Karachi. The learned trial Court on receipt of this verdict shall fix the fee of the Local Commission to the extent of the petitioners and proceed accordingly.

(R.A.) Petition accepted

PLJ 2014 Lahore 239 (DB) [Multan Bench Multan]

Present: Syed Mansoor Ali Shah and Abid Aziz Sheikh, JJ.

M/s. ITTEFAQ RICE MILLS, HARRAPPA SAHIWAL--Appellant

versus

FEDERATION OF PAKISTAN through Revenue Division Government of Pakistan and 4 others--Respondents

I.C.A. No. 116 of 2013 in W.P. No. 4266 of 2013, decided on 23.5.2013.

Income Tax Ordinance, 2001 (XLIX of 2001)--

----S. 214(c)--Sales Tax Act, 1990, S. 72-B--Federal Excises Act, 2005, S. 42-B--Understanding at between taxpayers and FBR regarding selection of cases for audit for tax year 2011--Minutes of meeting--Scope and mechanism of process--Statutory obligation of FBR regarding selection of cases for audit under Section 214(c) of Income Tax Ordinance, 2001, Section 72B of Sales Tax Act, 1990 and Section 42-B of Federal Excises Act, 2005 is to conduct a ballot which may be random or parametric--In a parametric audit, the application of risk parameters to taxpayers will automatically segregate a group of taxpayers, for convenience--It is parametric group of taxpayers which is put through computer balloting and a limited number from amongst them selected for audit as per institutional capacity and requirement--Risk parameters have been duly framed by FBR and have been publically advertised for sake of taxpayers convenience--Only "high risk cases" have to be audited which can only be identified and segregated for the purposes of balloting if all the risk parameters are attracted to a particular case of a taxpayer or by selecting high risk score only--Multiple factors determine risk e.g., the nature of the risk parameter, the number of the risk parameters attracted in a case, the quantum of revenue involved--Even a single risk parameter can identify a high risk case--FBR is the best judge to perceive and quantify `risk'--Enquiries put up in this letter by the field formation before FBR are misconceived besides being contumacious, because after the selection of cases by FBR for audit through holding parametric balloting, the field formation cannot conceivably question the selection or mechanism of segregation--Inconsequential and does not advance the case of the appellant or weaken the case of the FBR--Such a policy must be open, lucid, transparent and self explanatory--Audit Policy for the Tax Year 2011 is in the shape of Minutes of the Meeting of the FBR's Board-in-Council and has not been formalized into a policy document and uploaded as such on the website of the FBR--No illegality or error in the selection for audit of the appellant for the Tax Year, 2011 through letter issued by respondent--Order of Judge in chambers does not call for any interference. [Pp. 243, 244, 245, 246 & 247] A, B, C, D, E, F, G, H & I

Malik Mumtaz Hussain Khokhar, Advocate for Appellant.

Mr.Asif Rasool, Additional Commissioner Inland Revenue for Respondents.

Date of hearing: 23.5.2013.

Judgment

Syed Mansoor Ali Shah, J.--This judgment shall decide this appeal, as well as, I.C.A. No. 119/2013 as both raise identical questions of law and facts.

1. The appellant has assailed Letter dated 20.03.2013 issued by the Commissioner, Inland Revenue, Sahiwal Zone, Sahiwal whereby the appellant has been selected for audit for the Tax Year 2011. Learned counsel for the appellant submits that the risk parameters for the selection of cases for audit framed in the Meeting of Federal Board of Revenue's Board-in-Council ("Meeting") held on 14.02.2013 under Section 214-C of the Income Tax Ordinance, 2001 ("Ordinance"), Section 72-B of the Sales Tax Act, 1990 and Section 42-B of the Federal Excises Act, 2005 offend the understanding arrived at between the taxpayer and the FBR before this Court in Premier Industrial Chemical Manufacturing Co, v. Commissioner Inland Revenue, etc. [(2013) 107 Tax 21]. Elaborating his contention he points out that according to the Minutes of Meeting dated 15.2.2013 ("Minutes") the aim is to audit "high risk cases" and unless and until high risk cases are indentified through an open and transparent mechanism, the parametric ballot cannot be held. He further submits that in order to qualify as a `high risk case' ALL the risk parameters must apply to a taxpayer. He contends that as impugned Letter dated 20.3.2013 mentions only four risk parameters to have been attracted in the case of the appellant it is not likely that the appellant falls in the high risk category. Hence the appellant does not qualify to be considered for parametric balloting under Section 214-C of the Ordinance.

2. Learned counsel for the appellant further adds that subsequent decision of FBR reflected in Letter dated 05.04.2012 issued by the Chief (Taxpayers Audit), FBR supports the case of the appellant, inasmuch as, the latter decision of the FBR establishes that the mechanism of segregation of `high risk cases' provided in the Minutes required that ALL risk parameters should apply to the case of a taxpayer. He further submits that for this reason the department tabulated a RISK SCORE for every taxpayer. It is prayed that for the above reasons the impugned selection of the appellant for audit under Section 214-C of the Income Tax Ordinance, 2001 be set aside. He further submitted that the learned Judge in Chamber has failed to consider the above contentions while dismissing the petition of the appellant in limine.

3. Mr. Asif Rasool, Additional Commissioner, Inland Revenue has appeared on behalf of respondent FBR and submitted that the Minutes are at best an internal document of the FBR and except the risk parameters framed by the Board, the remaining contents of the Minutes, especially Para 2 confers no right on the assessee to maintain this petition. He contended that calculation of "high risk" is not a legal requirement under Section 214-C of the Ordinance, which only provides for the mode of balloting to be either random or parametric. When asked to explain the meaning of the term "high risk case" used in the Minutes of the FBR, he replied that attraction of even one parameter to a case may constitute `high risk case' as risk can be guaged with multiple factors including the amount of revenue involved. Therefore, the policy of the FBR, as given in the Minutes is to segregate cases of taxpayers for the purposes of parametric ballot where even a single parameter is attracted. He submits that the subsequent Letter of the FBR, cited above, is no more than a clarification of the Minutes and does not alter the policy in any manner whatsoever.

4. He explained that there are only two categories of cases in the field i.e., High Risk and Low Risk cases. In order to qualify under the high risk cases, the following formula has been evolved by the FBR to determine the RISK SCORE. Except where there is a risk score of ZERO,' all other cases fall underhigh risk cases' and are segregated for the purposes of selection through ballot.

No. of Variables in YES x10000

No. of Variables in (YES & NO)

1. He further submits that the selection has been in accordance with the arrangement arrived at between the taxpayers and the FBR before this Court in Premier Industrial Chemical Manufacturing Co. case (supra). He explained that selection of cases has been through balloting on parametric basis in terms of Section 214-C of the Ordinance. The parameters have been framed by the FBR after a deliberative process as recorded in the Minutes of the Meeting of the FBR's Board-in-Council dated 15.02.2013.

2. We have heard the learned counsel for the parties and have gone through the record of the case.

3. The understanding arrived at between taxpayers and FBR regarding selection of cases for audit for Tax Year 2011 has been recorded in the judgment reported as Premier Industrial Chemical Manufacturing Co. v. Commissioner Inland Revenue, etc. [(2013) 107 Tax 21] in the following manner:--

"2. After arguing the case at some length, the parties have arrived at the following consensus;

(a) That notices for selection of audit for Tax Year 2011, which have been impugned in the instant petition, as well as, in the petitions mentioned in Schedule-A may be set aside and the process of audit be initiated afresh by the FBR after framing the parameters for selection of audit, keeping in view the following guidelines:

(i) That Federal Board of Revenue in terms of Section 214-C of the Income Tax Ordinance, 2001, Section 72-B of the Sales Tax Act, 1990 and Section 42-B of the Federal Excise Act, 2005, shall frame three separate sets of parameters for selection of eases for audit under the three tax laws;

(ii) That after the selection process has been carried out independently under all the three tax laws, if the Federal Board of Revenue wishes to further narrow down the selection through carrying out risk analysis (as already done in these cases) the same may be done separately under each tax law;

(iii) That a day or so prior to the selection of cases for audit the Federal Board of Revenue shall publicize the parameters settled, in the manner above, for the concerned tax year in the print media, as well as, upload the same on the website of FBR to facilitate the taxpayers;

(iv) That notices (separate notices under different tax laws) issued to the taxpayers selected for audit shall clearly specify the parameters attracted in their cases in order to make the process;

(v) The Federal Board of Revenue will also consider establishing a Grievance/Review Panel to attend to the issues/questions arising out of the audit selection process. This will alleviate the anxiety of the taxpayers and may also avoid further litigation."

1. FBR's Board-in-Council in its Meeting held on 14.02.2013 has approved the "risk parameters for selection of cases for audit" under Income Tax Ordinance, 2001, Sales Tax Act, 1990 and Federal Excise Act, 2005 pertaining to Tax Year 2011. Para 2 of the said Minutes provide as follows:--

"2. Federal Board of Revenue will select cases for audit on the basis of these parameters aimed at auditing high risk cases and promoting voluntary compliance culture. This will also minimize personal involvement in selection of cases which will result in reducing any possible harassment to the taxpayers." (emphasis supplied)

1. The summary of commitments made by FBR in Premier Industrial Chemical Manufacturing Co. case is as follows:--

a. To frame three separate sets of parameters for the selection of cases for audit under the three tax laws.

b. To narrow down the selection through risk analysis, if the FBR so wishes.

c. To publicize the parameters in print media and on the website of the FBR.

d. To clearly specify, in the notice to the taxpayer, the parameters attracted in their case.

e. Establishment of the Grievance/Review Panel.

1. Perusal of the Minutes of the Meeting of the FBR's Board-in-Council dated 15.02.2013 reveal that the FBR has honoured the commitments recorded in the above cited judgment of this Court.

2. The statutory obligation of the FBR regarding selection of cases for audit under Section 214-C of the Income Tax Ordinance, 2001, Section 72-B of the Sales Tax Act, 1990 and Section 42-B of the Federal Excises Act, 2005 is to conduct a ballot which may be random or parametric. Section 214C-(1) of the Ordinance, which is identical to the other aforementioned provisions, to this extent, provides:

214-C (1). The Board may select persons or classes of persons for audit of Income Tax affairs through computer ballot which may be random or parametric as the Board may deem fit. (emphasis supplied)

The law clearly provides for selection of persons' orclasses of persons' for audit. Selection of persons' is conveniently done through random balloting while selection of "classes of persons" can only be through parametric balloting. It is axiomatic that in a parametric audit, the application of risk parameters to the taxpayers will automatically segregate a group of taxpayers, for convenience, referred to as theparametric group'. It is this parametric group of taxpayers which is put through computer balloting (also paramertric balloting) and a limited number from amongst them selected for audit as per institutional capacity and requirement.

1. The real issue before us in this case is the scope and mechanism of the process of segregation of the taxpayers for developing a parametric group before it is funneled through the process of balloting. The nature and character of the `parametric group' will depend on the mode and manner of application of the risk parameters to the taxpayers. This architecture and design of risk analysis forming part of the audit strategy/policy, for a particular tax year, is the sole prerogative of the FBR. The weightage of risk attached to a parameter falls within the technical and expert domain of the FBR. The Courts may judicially review the audit policy announced by the FBR in order to satisfy itself regarding its fairness, openness and transparency besides ensuring that the audit policy has been fairly applied to the taxpayers across the board. Needless to say that FBR has to show that the risk parameters have been duly framed by FBR and have been publically advertised for the sake of taxpayers convenience alongwith the risk strategy adopted by the FBR (reference commitment made by FBR in Premier Industrial Chemical Manufacturing Co. case).

2. Now coming to the facts of the present case. The Minutes of the Meeting of the FBR's Board in Council dated 15.02.2013, which quintessentially is the audit policy of the FBR for Tax Year 2011, lays down risk parameters of all the three tax laws separately. Para 2 of the Minutes provides as follows:--

"2. Federal Board of Revenue will select cases for audit on the basis of these parameters aimed at auditing high risk cases and promoting voluntary compliance culture. This will also minimize personal involvement in selection of cases which will result in reducing any possible harassment to the taxpayers."

1. This has been followed by Letter dated 05.04.2013 issued by the Chief (Taxpayers Audit), communicating the decision of the Board to the field formation of FBR, after the selection of cases for audit, in the following terms:

To, All Chief Commissioner Inland Revenue, LTU's/RTO's.

Subject: SELECTION OF AUDIT BY THE BOARD THROUGH PARAMETRIC COMPUTE BALLOTING FOR TAX YEAR 2011.

I am directed to refer to subject cited above and to say that some of the field formation have made enquires that in the some cases criteria's on which the cases have been selected by the board all parameters do not specifically apply on the cases. The issue has been considered by the Board and it has been decided that even if a single parameter attracts a particular case, LTU's/RTO's shall proceed for audit of the case under the law.

Sd/- (Najeeb Qadir) Chief (Taxpayers Audit) Fax:051-9219649

1. Based on the terminology employed in Para 2 of the Minutes it has been urged before this Court that only "high risk cases" have to be audited which can only be identified and segregated for the purposes of balloting if all the risk parameters are attracted to a particular case of a taxpayer or by selecting the high risk score only.

2. It is important to dispel this impression harboured by the learned counsel for the appellant regarding "high risk cases." It is the understanding of the appellant that "high risk cases" necessarily mean cases which have a "high risk score" calculated on the basis of the formula mentioned above. Perusal of the risk parameters show that every parameter is independent and self-contained. The impression gathered by the learned counsel for the appellant that there is a symbiotic relationship between the parameters and unless a basket of risk parameters is attracted to a case, the case does not qualify as a high-risk case is erroneous. Multiple factors determine risk e.g., the nature of the risk parameter, the number of the risk parameters attracted in a case, the quantum of revenue involved, etc. Therefore, even a single risk parameter can identify a high risk case.

3. The Additional Commissioner representing the FBR has taken pains to explain that under the audit policy reflected in the Minutes of the Meeting dated 15.02.2013, high risk cases' mean cases to which even a single parameter is attracted. In the wake of this submission, the RISK SCORE formula employed by the FBR is only to help separate high risk cases from low risk cases. Low risk cases being cases to which not a single parameter applies. There is no other purpose or a deeper meaning attached to the Risk Score tabulated by the FBR. Once again it is reiterated that FBR is the best judge to perceive and quantifyrisk'. In this case the representative of the FBR has made it clear that according to Para 2 of the Minutes even a single risk parameter constitutes "high risk".

4. After segregation, all the cases other than ZERO risk score cases have been funneled through parametric ballot and out of these cases a limited number of cases have been selected, including the appellant, according to the auditing capacity of the FBR and its field formation. Even otherwise Para 2 of the Minutes which simply states that "these parameters are aimed at auditing high risk cases" does not mean that application of ALL the parameters will constitute high risk cases. It actually means that even a single risk parameter, from amongst the framed risk parameters, can identify high risk cases.

5. Letter dated 05.04.2012 issued by the Chief (Taxpayers Audit) communicating the decision of the Board to its field formation is no more than a clarification supporting the view taken by FBR in the Minutes discussed above. Additionally, we find that the enquiries put up in this letter by the field formation before the FBR are misconceived besides being contumacious, because after the selection of cases by FBR for audit through holding parametric balloting, the field formation cannot conceivably question the said selection or mechanism of segregation. The said letter is, therefore, inconsequential and does not advance the case of the appellant or weaken the case of the FBR.

6. Before parting with the judgment we wish to observe that FBR has been some what causal in framing the Audit Policy as is evident from the drafting of the Minutes and Letter dated 05.04.2013 issued by the Chief (Taxpayers Audit). Audit Policy is a serious matter and affects a large number of taxpayers in the country. Such a policy must be open, lucid, transparent and self explanatory. We find it odd that the Audit Policy for the Tax Year 2011 is in the shape of Minutes of the Meeting of the FBR's Board-in-Council and has not been formalized into a policy document and uploaded as such on the website of the FBR.

7. FBR shall ensure that in future, the Audit Policy carrying the risk parameters and the mode and manner of segregation through risk analysis for the purposes of parametric balloting is clearly laid out in a policy document. This will help avoid litigation and will also allay the apprehensions of the taxpayers which stem from lack of openness and clarity. It is clarified that we have not gone into the neutrality or the fairness of the individual risk parameter framed by the FBR as it was not challenged before us and can be looked into in some other case.

8. For the above reasons, we find no illegality or error in the selection for audit of the appellant for the Tax Year, 2011 through letter dated 20.3.2013 issued by Respondent No. 3. For the same treasons, the order of the learned Judge in chambers does not call for any interference. This appeal is, therefore, dismissed with no order as to costs.

9. Appellant is, however, free to approach the Review Panel or the Regional Review Panel as the case may be, in case the appellant is aggrieved with the application of any risk parameter to the case of appellant on merits.

(R.A.) Appeal dismissed

PLJ 2014 Lahore 247 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

T.M.A.--Petitioner

versus

Mst. NAJMA ZAKIA etc.--Respondents

C.R. No. 113 of 2004, decided on 12.7.2013.

Limitation Act, 1908 (IX of 1908)--

----Art. 181--Execution petition--Period of limitation for filing of first application for execution of decree--Question of--Whether execution petition filed before executing Court was within time--Period of limitation for filing of first application for execution of a decree as per Art. 181 of Limitation Act, 1908 is three years and mere filing of a civil revision does not extend the period of limitation--Limitation started with the passing of the decree continued till its expiry as it is settled law that the limitation once started will not stop until and unless so ordered by a competent Court of law--Since the decree passed on 26.02.1995 was not suspended nor it was affirmed, reversed or modified but was withdrawn by present respondent therefore, starting point for the computation of period of limitation will be the date of the decree, i.e--26.02.1995 which period expired on 25.02.1998. [P. 251] A

Execution Petition--

----Execution petition was filed with delay of about 5 months and 6 days--No plausible explanation was given by decree holder for delay in filing execution petition--Validity--Since no stay was granted by High Court challenging the decree a right has accrued in favour of the petitioner as the period of limitation has been running from the date of decree passed by lower appellate Court--No extension of time can be granted on account of pendency of the civil revision before High Court--Execution petition was barred by time by five months and six days and was liable to be dismissed--Execution petition was filed after withdrawal of the civil revision does not hold water as when no restraint order was passed, the decree holder was at liberty to file the execution petition but he did not do so, therefore, the limitation period expired on 25.02.1998 whereafter the execution petition was not maintainable until and unless the delay was condoned in accordance with law--Execution petition was unlawfully considered within time by the executing Court without condoning delay occurred on the part of the decree holder--Though the decree passed in a suit for mandatory injunction had attained finality and was executable yet the execution petition was filed with a delay of five months and six days without given any explanation for the same, therefore, the execution petition was time barred. [Pp. 252 & 253] B, C & D

Mr. AhmedMansoor Chishti, Advocate for Petitioner.

Raja MuhammadSohail Iftikhar, Advocate for Respondent No. 1.

Mr. MuhammadSarwar Chaudhry, Legal Adviser for Respondent No. 2.

Date of hearing: 14.6.2013

Judgment

Brief facts of the case are that Respondent No. 1 namely Mst. Najma Zakia filed a suit for mandatory injunction regarding Plot No. 52, measuring 8 marla-28 Sq. ft situated at Chah Peepalwala Scheme Model Town A, Bahawalpur against the petitioner and Respondent No. 2. The plaintiff averred in the plaint that she had purchased the said plot from her real aunt, wife of Raja Mukhtar Ali, which was allotted to her in 1968 by the Municipal Committee Bahawalpur after having paid the total cost of the plot. Notices were served upon the petitioner and Respondent No. 2 who contested the suit by filing written statements. After recording oral as well as documentary evidence adduced by the parties, learned trial Court seized with the matter proceeded to dismiss the suit of Respondent No. 1 under Order VII, Rule 11 of Civil Procedure Code, 1908 vide its judgment and decree dated 10.11.1992. Feeling aggrieved, Respondent No. 1 preferred an appeal which was allowed by the learned Additional District Judge, Bahawalpur and the judgment and decree dated 10.11.1992 was set aside with the direction to Respondent No. 1 to deposit the price of land including other charges with Respondent No. 2-Cantonment Board vide judgment and decree dated 26.02.1995. Respondent No. 2 challenged the judgment and decree dated 26.02.1995 in Civil Revision No. 393-D/1995 which ultimately was dismissed as withdrawn vide order dated 04.02.1998.

1. On 31.07.1998, Respondent No. 1 filed an execution petition for execution of judgment and decree dated 26.02.1995 passed by learned Additional District Judge Bahawalpur. In the execution petition, Respondent No. 1 has sought direction to the present petitioner to receive the price of the land in dispute and issue sale-deed in her favour. The execution petition was resisted by the petitioner by way of filing the objection petition taking pleas that the decree under execution was not passed against the petitioner; that the same is illegal and without jurisdiction and that it is badly barred by time. The executing Court framed issues on the objection petition, recorded evidence produced by the parties and after having considered the same proceeded to dismiss the objection petition vide order dated 09.12.2002. The appeal preferred thereagainst also met with the same fate vide order dated 25.10.2003 passed by learned lower appellate Court. Hence this civil revision.

2. Learned counsels for the petitioner and Respondent No. 2 (Cantonment Board) submit that Respondent No. 1 wants to grab the valuable government property; that learned Courts below have failed to comprehend the nature of the decree under execution; that against notice of the Cantonment Board, appeal is provided in the Cantonment Board Act but Respondent No. 1 filed suit illegally and unlawfully which was not maintainable in the presence of alternate remedy; that the amount deposited with the Cantonment Board was on account of penalty and not as a consideration money; that as per judgment of Hon'ble Supreme Court, the disputed property is owned by the TMA, as such, neither the Cantonment Board has any title nor it could sell or lease out the property to anyone; that the judgment and decree dated 26.02.1995 was awarded merely on the statement of the plaintiff that she is ready to make payment of the property without taking consent of the other side which is against the law of equity; that the judgment and decree dated 26.02.1995 does not call for petitioner to perform any act in pursuance thereof; that both the learned Court below have incorrectly treated the execution petition as within time which in fact was badly barred by time; that the disputed property is owned by the petitioner TMA or its predecessor local council which is a statutory body, therefore, the property owned by it was required to be governed under the provisions of Punjab Local Council (Property) Rules, 1981; that under the provisions of Rule 10 of Punjab Local Council (Property) Rules, 1981, no property owned by TMA/local council can be alienated by way of sale or otherwise except through an open auction, therefore, the judgment and decree dated 26.02.1995 is void ab initio; that without conceding the judgment and decree, it was incumbent upon the decree holder to comply with the direction contained in the decree which has not been done by her, therefore, she has not locus standi to seek execution of the decree; that the learned Courts below have committed gross illegalities which are floating on the face of the record attracting interference by this Court, therefore, this civil revision be allowed and the impugned orders dated 09.12.2002, 25.10.2003 and judgment and decree dated 26.02.1995 be set aside.

3. Conversely, learned counsel for Respondent No. 1 vehemently opposes this civil revision and fully supports the impugned orders as well as the judgment and decree dated 26.02.1995. He contends that the executing Court cannot go beyond the decree; the impugned judgment and decree dated 26.02.1995 was never challenged by the present petitioners which has attained finality, as such, the objection petition was not maintainable. He asserts that this civil revision having no force merits dismissal.

4. I have heard the arguments advanced by learned counsel for the parties at length and also perused the record with their able assistance.

5. The questions to be determine by this Court are whether the execution petition before the executing Court was within time and whether the decree for mandatory injunction was executable or not.

6. So far as passing of a decree by the appellate Court in a suit for mandatory injunction is concerned, I am convinced that the Court can pass the decree as has been done in this case. No doubt, there was no consent of any respondent before the appellate Court and the decree was passed on the mere statement of the Respondent No. 1-plaintiff but still that decree was not challenged by the present petitioners at the appropriate time nor Respondent No. 2 (Cantonment Board) contested the matter whole-heartedly till at last and withdrew its Civil Revision No. 393-D/1995, therefore, the said decree had attained finality. The executing Court and the appellate Court have rightly held that the executing Court cannot go beyond the decree.

7. Now, I take up the question as to whether the execution petition filed before the executing Court was within time. Scanning of record shows that the impugned judgment and decree was passed on 26.02.1995 by the lower appellate Court whereas the execution petition was filed on 31.07.1998. The judgment and decree dated 26.02.1995 was challenged before this Court in Civil Revision No. 393-D/1995 wherein pre-admission notice was issued to the Respondent No. 1-plaintiff but operation of the judgment and decree dated 26.02.1995 was not suspended. When confronted with, learned counsel for Respondent No. 1 could not deny the fact that operation of the impugned judgment and decree remained unsuspended. In my considered view, the period of limitation for filing of first application for execution of a decree as per Article 181 of the Limitation Act, 1908 is three years and mere filing of a civil revision does not extend the period of limitation. The limitation started with the passing of the decree continued till its expiry on 25.02.1998 as it is settled law that the limitation once started will not stop until and unless so ordered by a competent Court of law. Since the decree passed on 26.02.1995 was not suspended nor it was affirmed, reversed or modified but was withdrawn by present Respondent No. 2, therefore, starting point for the computation of period of limitation will be the date of the decree, i.e. 26.02.1995 which period expired on 25.02.1998. I am guided by the judgment of the Hon'ble Supreme Court of Pakistan in case titled "Abdul Qayyum v. Ali Asghar Shah (1992 SCMR 241)" which reads as under:

"It may be recalled that, according to the High Court, the time started from the date when the First Appellate Court passed the decree. It is manifest from the impugned order that the reason which influenced the decision of the learned Single Judge in synchronizing the accrual of right to apply within the meaning of Article 181, with the date of the decree of the First Appellate Court, and not with that of the High Court, is that the First Appellate Court had stated the execution of the decree and the stay order ceased to be operative on the dismissal of the appeal, but no such prohibitory order was issued in revision by the High Court. Obviously, the learned Single Judge was conscious of the provision of Section 15 of the Limitation Act whereunder in computing the period of limitation for execution of a decree, the time during which the execution proceedings remained suspended has to be excluded; meaning thereby that despite the decree of the Appellate Court, the decree passed by the trial Court continued to maintain its identity and was capable of execution. Quite advantageously, reference here, may be made to Order XLI, Rule 5, C.P.C., which provides that mere filing of an appeal does not operate as a stay of the decree appealed from. The Appellate Court, is however, empowered to order the stay of the execution of such decree. Seemingly, the object of this rule is that the decree-holder is not deprived of the relief to which he has been found entitled by the Court, and at the same time to ensure that by execution of the decree the appeal is not rendered infructuous. It appears that in holding that the period of limitation for execution of the decree commenced from the date of the decision by the Appellate Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be remembered that till such time, an appeal or revision from decree is not filed, or such proceedings are pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the decree only that decree can be executed, irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified."

The above judgment has also been relied in latest judgment of the apex Court in case titled "Bakhtiar Ahmed v. Shamim Akhtar (2013 SCMR 5)" wherein the above point has been further elaborated stating that "...where stay is granted by the Appellate/Revisional Court, time can be extended for such period the decree remained under suspension."

1. It is evident from the record that the execution petition was filed on 31.07.1998 with a delay of about five months and six days. Under the law, each and every day of delay is to be explained, however, there is no plausible explanation given by the decree holder for delay of five months and six days in filing the execution petition. In the circumstances, since no stay was granted by this Court in the Civil Revision No. 393-D/1995 challenging the decree dated 26.02.1995, a right has accrued in favour of the petitioner-defendant, as the period of limitation has been running from the date of decree dated 26.02.1995 passed by the learned lower appellate Court till expiry on 25.02.1995 whereas the execution petition was filed on 31.07.1998. In the circumstances, no extension of time can be granted on account of pendency of the civil revision before this Court. Therefore, I am fully convinced that the execution petition was barred by time by five months and six days and was liable to be dismissed on this score alone.

2. The contention of learned counsel for Respondent No. 1 that the execution petition was filed after withdrawal of the civil revision on 04.02.1998 does not hold water as when no restraint order was passed, the decree holder was at liberty to file the execution petition but he did not do so, therefore, the limitation period expired on 25.02.1998 whereafter the execution petition was not maintainable until and unless the delay was condoned in accordance with law. The execution petition was unlawfully considered within time by the executing Court without condoning delay occurred on the part of the decree holder.

3. For the aforementioned reasons, I am of the view that though the decree passed in a suit for mandatory injunction had attained finality and was executable yet the execution petition was filed with a delay of five months and six days without given any explanation for the same, therefore, the execution petition is time barred. As a result, this civil revision is allowed, the impugned orders dated 09.12.2002 and 25.10.2003 passed by executing Court as well as learned lower appellate Court respectively are set aside and the execution petition filed by Respondent No. 1 is dismissed.

(R.A.) Revision allowed

PLJ 2014 Lahore 253 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

Mst. KARIM BIBI and others--Petitioners

versus

MUHAMMAD SHAFI AKHTAR and others--Respondents

Civil Revision No. 549 of 2000/BWP, decided on 12.6.2013.

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

----S. 115--Civil revision--Mutation of inheritance--Alienation of property--Oral as well as documentary evidence--Suit for possession and declaration, dismissal of--Appeal was allowed by First Appellate Court--Challenge to--Mutation as well as subsequent sale transactions--Witnesses were interested one being close related to plaintiff--Period of limitation was six years--Question of--Whether mutation was lawfully attested and whether suit was filed within period of limitation--Factum of death of predecessor of plaintiffs had not been mentioned in plaint--Scrutiny of evidence--Validity--Stance taken by prosecution witness that predecessor died prior to attestion of the mutation was contradictory to statements made by prosecution witnesses who stated that he became aware of mutation after one year of death of deceased--At maximum, deceased was aware about attestation of mutation but he instituted the suit about sixteen years of date of knowledge and kept mum for such a long period without any lawful reason--Plaintiffs came to know about the mutation after one year of death, the suit cannot be termed to have been filed after about eighteen years after date of attestation of the mutation which was badly hit by law of limitation--Suit was instituted after 18 years of attestation of mutation and about 16 years alleged knowledge of the mutation was badly barred by time and was liable to be dismissed--Civil revision was allowed. [Pp. 257 & 258] A, B, C & D

PLD 2003 SC 688, 1982 CLC 1709, 2008 YLR 650, PLD 2005 Lah. 129 & 2011 MLD 1801, ref.

Ch.Naseer Ahmed & Mr. Naveed Ali Abbasi, Advocates for Petitioner.

Mr.Aejaz Ahmed Ansari & Mr. Amir Aqeel Ansari, Advocates for Respondents No. 1 to 12.

Date of hearing: 13.05.2013

Judgment

By way of filing present civil revision, the petitioners have impugned the judgment and decree dated 03.11.2000 passed by learned District Judge Rahim Yar Khan who while accepting the appeal of Respondents No. 1 to 12/ plaintiffs decreed their suit and set aside the judgment and decree dated 26.11.1999 whereby the suit of Respondents No. 1 to 12/plaintiffs was dismissed by learned Civil Judge Rahim Yar Khan.

1. The cause of action as contained in this petition is that on 07.03.1988, Respondents No. 1 to 12/plaintiffs filed a suit for possession and declaration alleging that their predecessor-in-interest Maqsood Hussain had leased out the suit property, fully described in the head note of the plaint, to the predecessor-in-interest of petitioners namely Ch. Muhammad Tufail who got prepared a fictitious Mutation No. 974, dated 31.03.1968 in his favour. They averred in the plaint that the said mutation as well as subsequent sale transactions/mutations being illegal and unlawful are ineffective upon the rights of the plaintiffs.

2. The suit was hotly contested by the petitioners and Respondents No. 13 to 30 mainly on the ground that the predecessors-in-interest of the petitioners and Respondents No. 13 to 30 namely Ch. Muhammad Tufail had purchased the suit property from Maqsood Hussain, predecessor-in-interest of Respondents No. 1 to 12/plaintiffs vide Mutation No. 974, dated 31.03.1968. Ch. Muhammad Tufail was accordingly given possession of the property. Thereafter, ten other transfers/alienation of the property took place through Ex.P-9 to Ex.P-17, out of which eight transactions are based upon registered sale-deeds and two are mutations of inheritance. Ch. Muhammad Tufail and subsequent vendees are in possession of the property since 1968.

3. Out of divergent pleadings of the parties, learned trial Court settled following issues:--

"ISSUES

1. Whether plaintiffs are owner in possession of the suit property and Mutation No. 974 dated 31.3.1968 and subsequent Mutation No. 1463 dated 23.2.1986, 1533 dated 20.08.1976, 1887, 1888, 1889, 1890, 1891 dated 24.5.1980, 2099 dated 19.9.1981, 2409 dated 27.1.1983, 2919 dated 19.7.1985, 3118 dated 23.2.1986, 3383 dated 5.4.1987, are void, illegal, collusive, without any consideration, therefore, inoperative against the rights of plaintiffs? OPP

2. Whether the defendants are in continuous possession of the suit property since 1968 therefore, the suit is not maintainable in its present form? OPD

3. Whether the suit is time barred? OPD

4. Whether the suit has been incorrectly valued for the purposes of Court fee, if so, what is correct value? OPD

5. Whether the plaintiff has come to the Court with unclear hands, therefore, not entitled to any relief? OPD

6. Whether the defendants are entitled to special costs u/S. 35-A of, CPC, If so, to what extent? OPD

6.A Whether the plaintiffs are entitled to decree of possession in respect of disputed property claimed by them? OPP

1. Relief?"

After recording oral as well as documentary evidence adduced by the parties, learned trial Court proceeded to dismiss the suit of Respondents No. 1 to 12/plaintiffs vide judgment and decree dated 26.11.1999. The plaintiffs feeling dissatisfied filed an appeal which was allowed by learned District Judge Rahim Yar Khan decreeing the suit of the plaintiffs vide judgment and decree dated 03.11.2000 which has been challenged through the instant civil revision.

1. Learned counsel for the petitioners inter alia contends that there is a contradiction in the statements of the plaintiff Muhammad Shafi as in the pleadings he states that the Mutation No. 974 has been got prepared fraudulently whereas while appearing as PW-3 he states that it is fictitious and fabricated. He submits that the instant suit was filed after twenty years of the date of sanctioning of the mutation in question on the ground of fraud which being badly hit by law of limitation was liable to be dismissed on this score alone as maximum period of limitation provided by law was six years. He argues that the PWs themselves admit that the plaintiff Muhammad Shafi came to know about the sale transaction just one year of its happening but the plaintiffs remained slept over their rights for a long period of twenty years which cannot be justified. Learned counsel states that the plaintiffs have produced three witnesses including the plaintiff Muhammad Shafi and all the three witnesses are interested one being closely related to the plaintiff Muhammad Shafi. He avers that the plaintiffs have failed to prove their case even on merits as the evidence of PW-1 and PW-2 is based on hearsay, therefore, the learned trial Court rightly dismissed the suit whereas the learned lower appellate Court unlawfully shifting the burden of proof from the plaintiffs to the petitioners-defendants decreed the suit of the plaintiffs by impugned judgment and decree which is not sustainable in the eye of law. He prays that this civil revision be allowed, the judgment and decree passed by learned lower appellate Court be set aside and the judgment and decree passed by learned trial Court be restored.

2. On the contrary, learned counsel for the respondents vehemently opposes the contentions raised by learned counsel for the petitioners and fully supports the judgment and decree impugned. Learned counsel argues that since the petitioners-defendants were beneficiary of the disputed Mutation No. 974, therefore, burden to prove the same was rightly shifted to them who have failed to prove the same. He contends that the possession of suit property was given to the predecessor-in-interest of the petitioners as tenant who fraudulently got prepared the mutation in question which is illegal and unlawful as once a tenant is always a tenant as per settled principles of law. He further submits that if Mutation No. 974 is declared void ab initio, the subsequent mutations will be of no consequence. He avers that this civil revision is without any merit, hence merits dismissal.

3. I have heard the arguments put forth by learned counsel for the parties and also perused the record with their able assistance.

4. There are two points which require consideration by this Court in exercise of its revisional jurisdiction. Firstly, whether the Mutation No. 974 dated 31.03.1968 was rightly and lawfully attested and secondly, whether the suit was filed within the period of limitation. The contention of learned counsel for the petitioners is that the suit filed by the respondents was hopelessly barred by time as Mutation No. 974 was rightly attested on 31.03.1968 whereas the suit was filed by the sons of vendor Maqsood Hussain on 07.03.1986, i.e. after about 18 years of attestation of the mutation, as such, it, according to learned petitioner's counsel, was liable to be dismissed on this score alone.

5. The factum of death of Maqsood Hussain predecessor of the plaintiffs has not been mentioned in the plaint but during the course of evidence, PW-1 Rasheed Ahmed deposed in his examination-in-chief that Maqsood Hussain died in the year 1971 whereas PW-2 Bashir Ahmed stated in his cross-examination that Muhammad Shafi came to know about the mutation after one year of the death of Maqsood Hussain. He further stated that he was told by Muhammad Shafi that the property has wrongly been mutated by Muhammad Tufail in his name. PW-3 Muhammad Shafi while appearing as his own witness stated that his father died in 1967 in Karachi whereas this fact was not mentioned by him in the plaint.

6. Muhammad Akram DW-1 produced a copy of the Mutation No. 974. DW-2 Mian Abdul Sami, Advocate identified the signatures of his father who was the Councilor of the Union Committee in the year 1968 and who identified Maqsood Hussain at the time of attestation of mutation. DW-4 Haji Muhammad Akram Naib Tehsildar deposed that his father was Tehsildar in the year 1968 of Teshil Rahim Yar Khan. DW-4 identified the signature and handwriting of his deceased father on Mutation No. 974 which was sanctioned by his deceased father. DW-5 Muhammad Lateef and DW-6 Ghulam Haider are the witnesses of the deal between Muhammad Tufail and Maqsood Hussain on the sale mutation. Muhammad Ameen appeared himself as well as on behalf of other defendants as DW-7 and deposed that the property was purchased from Maqsood Hussain by Haji Muhammad Tufail who died in the year 1982. He further deposed that they are in possession of the property and Muhammad Shafi one of the plaintiffs was well aware of the said sale. In cross-examination, this witness categorically stated that Muhammad Shafi told him that his father has sold the land. At that time, no other person was present and at that time Muhammad Shafi was an adult and in 1982 he was a young man.

7. It is crystal clear from the scrutiny of evidence that the stance taken by PW-3 Muhammad Shafi that Maqsood Hussain died in 1967 prior to attestation of the disputed mutation is contradictory to the statements made by PWs 1 & 2 who state that Maqsood Hussain died in the year 1971 and that Muhammad Shafi became aware of the mutation after about one year of death of Maqsood Hussain. I am guided by the law laid down in case titled "Mukhtar Ahmad vs. Malik Muhammad Shafi (1991 MLD 668)" that the party producing the evidence is bound by the statements of its own witnesses. At the maximum, Muhammad Shafi was aware about the attestation of the mutation in favour of Ch. Muhammad Tufail in 1972 but he instituted the suit in 1986, i.e about 16 years of date of knowledge and kept mum for such a long period without any lawful reason. On the other hand, the assertions made by the defendants are fully corroborated by the witnesses that Maqsood Hussain was alive at the time of mutation and did not expire prior to sanctioning of the disputed mutation. Even, signatures of the deceased Tehsildar who sanctioned the mutation in dispute and deceased Advocate who identified Maqsood Hussain at the time of attestation of the mutation were identified and confirmed by their respective sons. Further, in the entire evidence led by the plaintiffs it has nowhere been established that Maqsood Hussain did not die in the year 1971, i.e. subsequent to the disputed mutation which was attested on 31.03.1968 and rather he died in 1967 as asserted by Muhammad Shafi.

8. From the above narrated facts, it is clear that the trial Court has rightly decided the Issue No. 3 that the suit was barred by time whereas the findings of the appellate Court are quite sketchy which has wrongly reversed the findings of the trial Court on Issue No. 3 on the ground that the mutation is result of fraud and misrepresentation. In my opinion, the findings of the appellate Court are not sustainable in view of the law laid down in cases titled "Ch. Muhammad Ashraf and others vs. Mst. Gulshan Ara and others (2008 YLR 650)", "Muhammad Shafi through legal representatives vs. Abdul Rehman through legal representatives (PLD 2005 Lahore 129)", and "Mehandia vs. Juma through L.Rs (2011 MLD 1801)" wherein it has consistently been held that a suit for declaration can only be filed within the period of six years from the date when the right to sue accrued. As it is apparent from the statements of PW-1 and PW-2 that Maqsood Hussain vendor, died in the year 1971 and the plaintiffs came to know about the disputed mutation after one year of the death of Maqsood Hussain, the suit cannot be termed to have been filed within the period of limitation which is upto six years but the suit has been filed after about eighteen years after the date of attestation of the mutation which is badly hit by law of limitation.

9. Another important factor in this regard is that the said Maqsood Hussain never challenged the said mutation in his life time. The plaintiffs have not been able to prove that the Mutation No. 974 dated 31.03.1968 was void, illegal and collusive and that Maqsood Hussain died prior to the date of attestation of the said mutation. Onus to prove Issue No. 1 was upon the respondents-plaintiffs through affirmative evidence. PW-1 to PW-3 could not pass the test of cross-examination whereas petitioners/predecessors of late Muhammad Tufail proved the attestation of Mutation No. 974 by producing DW-1 to DW-7, however, nothing could be brought on record by the respondents/plaintiff in rebuttal. Learned counsel for the respondents has relied upon the dictums laid down in cases titled "Muhammad Akram and another vs. Altaf Ahmed (PLD 2003 SC 688)" and "Ghulam Hussain Khan vs. Mst. Aseela Begum and 3 others (1982 CLC 1709)." The case law relied upon by the respondents-plaintiffs is not applicable to the present case as the facts of the case relied upon by learned counsel for the respondents-plaintiffs are quite distinguishable and not attracted to the case in hand. In the circumstances, the suit filed by Respondents No. 1 & 2/plaintiffs having been instituted after 18 years of attestation of mutation and about 16 years of alleged knowledge of the mutation was badly barred by time and was liable to be dismissed on this score alone.

10. For the aforementioned reasons, this civil revision is allowed, the impugned judgment and decree dated 03.11.2000 passed by learned District Judge Rahim Yar Khan is set aside and the judgment and decree dated 26.11.1999 passed by learned Civil Judge Rahim Yar Khan is restored.

(R.A.) Revision allowed

PLJ 2014 Lahore 259

Present: Mrs. Ayesha A.Malik, J.

CREATIVE ELECTRONICS--Petitioner

versus

COMMISSIONER LAHORE, etc.--Respondents

W.P. No. 25955 of 2012, decided on 12.4.2013.

Partnership Act, 1932 (IX of 1932)--

----Ss. 18, 19 & 69--Companies Ordinance, 1984, S. 196--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Petition was not filed by duly authorized petitioner--Objection of maintainability--Non-joinder of necessary parties--Registered deed of Association--Question of--Whether a partnership firm can file a constitutional petition without registered deed of association and resolution or authority letter permitting partner to effect and whether partners can rectify filing of a constitutional petition subsequently by ratifying act of parties--Distinction between company which files constitutional petition through its director and a partner who files a petition on behalf of firm--Validity--Shares holders of the company act through board of directors--Board members are not owners of company and therefore, they cannot initiate proceeding on behalf of company in individual capacity unless they are expressly authorized by a board resolution--Partners are the owners of the firm and the rights and liability of the firm are the rights and liability of the partners--Each partner is an agent of the firm under Section 18 of the Partnership Act 1932--Petitioner seeks a direction to decide upon its application pending before Commissioner--Therefore, since a partner has implied authority to act and carry on business in the usual way can file constitutional petition on behalf of the other partners without written authorization from the other partners--Partnership business belongs to each and every partner jointly and severely--Hence, there is no distinction between the partner and the firm--In such a situation there is no requirement under the law that one partner be duly authorized by the other partner in writing to file a constitutional petition--Because one partner can seek to enforce a right on behalf of all the partners, through a constitutional petition--Subsequent filing of documents arose on account of the fact that title of petitioner does not disclose that it is a partnership firm hence, High Court at the very outset asked the Petitioner to explain its legal status as the same was not clear from the contents of the Petition--Objection with respect to the authorization of the partner filing the petition and documentation required for purpose of filing the petition has been decided in favour of the petitioner, therefore, subsequent filing of the documents will not have a critical effect on the maintainability of the writ petition--Subsequent filing of Deed of Association and ex-post facto rectifications by the partner is accepted--As such it has cured technical defects in filing of the instant petition. [Pp. 263, 264 & 265] A, B, C, D, E, F & G

Mr.Mansoor Usman Awan, Advocate for Petitioner.

Mr.Waqas Qadeer Dar, AAG for Respondents.

Date of hearing: 12.4.2013.

Order

Through this petition the petitioner seeks a decision on an application pending before the DCO requesting him to pay the outstanding amount for supply of diesel generators by the petitioner. Learned counsel pressed for notice to be issued and a report be called for as to why the respondent has not made the payment due to the petitioner.

1. At the very outset, learned Law Officer raised an objection with respect to the maintainability of the instant petition. The learned Law Officer's objection was that the petitioner has not been duly authorized to file this petition; that the petitioner has not annexed any document to show that it is a partnership concern; that no registered partnership deed has been filed and the petition suffers from non-joinder of necessary parties.

2. The petitioner has placed documents before this Court through C.M.No. 3/12 consisting of an authority letter from two other partners and a Deed of Association of Persons. It was explained that the petitioner is a partnership firm engaged in the business of supply of power electronics and information technology. Again learned Law Officer raised an objection that the petitioner could not file any document to show that he is duly authorized as it was a fundamental preliminarily issue and could not be rectified through a subsequent application. The Law Officer argued that if no authorization was appended with the petition it was fatal to the petition. Reliance is placed upon the cases titled "Muhammad Ayub & Brothers through Partner vs. Province of Sindh through Secretary Irrigation and Power Department, Karachi and others" (2009 CLD 194) "Messrs Nishat Chunnian Ltd vs. Province of Punjab through Secretary, Local Government and 2 others" (2012 CLD 1288).

3. The question before this Court is whether the petitioner stating to be a partnership firm can file a constitutional petition without a registered Deed of Association and a resolution or authority letter permitting the partner to this effect. The second question is whether the partners can rectify the filing of a constitutional petition subsequently by ratifying the act of the parties.

4. On the question that the petitioner has not filed the registered Deed of Association, Section 69 of the Partnership Act, 1932 is relevant which is reproduced as under:--

Section 69. Effect of non-registration.--(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, but shall not affect:--

(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realize the property of a dissolved firm, or

(b) the powers of an official assignee, receiver of Court under the Insolvency (Karachi Division x x x x) Act, 1909 or the Provincial Insolvency Act, 1920 to realize the property of an insolvent partner.

(4) This section shall not apply--

(a) to firms or to partners in firms which have no place of business in Pakistan, or whose places of business in Pakistan are situated in areas to which, by notification under (Section 56) this Chapter does not apply, (b) to any suit or claim of set-off not exceeding one hundred rupees in value which is not of a kind specified in the second Schedule to the Provincial Small Cause Courts Act, 1887, or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim."

In terms of Section 69, no suit can be instituted in any Court on behalf of a partner unless the firm is registered and the persons suing is shown as a partner in the Register of Firms. Similarly, no suit to enforce a contractual right can be instituted by an un-registered firm. A review of Section 69 shows that there is nothing in the stated section which is applicable to constitutional petitions. It has been held in a case titled "Muslim Commercial Bank Limited Karachi vs. Haji Shaikh Yaoinuddin and 2 others" (PLD 1992 Karachi 314) that the bar under Section 69(3) of the Partnership Act, 1932 does not extend to constitutional jurisdiction or even to rent cases because Section 69 is applicable specifically to suits, claim of set off or other proceedings to enforce a right under a contract. A bare reading of Section 69(1) and (2) reveals that for filing a suit or for the enforcement of a right under the Partnership Act, 1932, the firm must be registered. Sub-section (3) provides that it shall apply to a claim of set off or other proceedings to enforce a right arising from a contract. The use of the word "other proceedings" when interpreted, applying the rule of ejusdem generis would mean that other proceedings will not include constitutional jurisdiction as this jurisdiction, created by the Constitution of Islamic Republic of Pakistan, 1973 cannot be equated with suits or claim of set off. Therefore, I am of the opinion that Section 62 of the Partnership Act, 1932 will not apply to the instant petition.

1. Having said that, with respect to the instant petition the name of the petitioner as given in the file of the petitioner does not disclose that it is a partnership firm nor is there any document appended with the petition to show that it is a partnership firm and Mr. Sajjad Muhammad Khan is a partner, duly authorized by the firm to file the instant petition. Learned Law Officer argued that in the case of a company or registered society, the Memorandum and Articles of Association are filed along with the petition and due authorization has to be filed. In the same way with respect to a partnership firm if a partner does not append the Deed of Association and his authorization the petition would not be maintainable.

2. Conversely, learned counsel for the Petitioner argued that under the Partnership Act, 1932, the partners of a firm do not require to file an authorization in the same way as a registered society or limited liability company. He argued that a firm is distinct from a society and a company as the rights and liabilities of a partner are enforceable against him individually. In the case of a society or a company the person filing the petition must show that he has been duly authorized by the members or the board of directors as they are not enforcing a personal right. They are acting on behalf of the society or the company which is a legal entity and from whom they have to be authorized. In such cases it is necessary that the management who is acting on behalf of the members or share holders to duly authorize a person to file a constitutional petition. In the case of a firm since it is an individual right that a partner is seeking to enforce he does not require authorization to file the constitutional petition. Learned counsel relied upon Sections 19 and 22 of the Partnership Act, 1932 to argue that the same permit the individual partner to file a petition on behalf of a firm. He argued that the partners have implied authority under Section 19(2) of the Partnership Act, 1932, therefore, a partner can invoke constitutional jurisdiction on behalf of the firm without placing any authorization on the file and without appending the Deed of Association. In this case, he argued that Sajjad Muhammad Khan was the Managing Partner of the firm who has been given authority for filing the instant petition. He relied upon the documents subsequently filed.

3. After hearing both the counsels and reviewing the law, it is clear that there is a distinction between a company which files a constitutional petition through its Director and a partner who files a petition on behalf of the firm. Under Section 196 of the Companies Ordinance, 1984, the share-holders of the company act through the board of directors. The board members are not the owners of the company and therefore, they cannot initiate proceedings on behalf of the company in their individual capacity unless they are expressly authorized by a board resolution. The same principle would apply to a society registered under the Co-operative Societies Act, 1925. Under Section 23 of the said Act a registered society is a body corporate with perpetual succession with the power to file or defend itself in a suit. A member of the society is not an agent of the society nor does he own the society, hence, he would have to be authorized by the society in accordance with its memorandum of association before instituting any proceedings in any Court. A firm on the other hand is different. The partners are the owners of the firm and the rights and liability of the firm are the rights and liability of the partners. Each partner is an agent of the firm under Section 18 of the Partnership Act, 1932. Under Section 19 of the said Act, each partner has the implied authority to carry on business in the usual way and bind the firm. Section 19(2) provides for the exclusions to the implied authority. Under these Sections implied authority does not empower a partner to submit a dispute relating to the business of the firm for arbitration, or relinquish any claim by the firm, admit any liability in a suit by or against the firm or withdraw the suit proceedings filed on behalf of the firm. These subject matters have been specifically excluded from the implied authority of a partner. Filing of a constitutional petition has not been mentioned in the exclusion clauses. These clauses relate specifically to contractual disputes of the firm. In the instant petition, the Petitioner seeks to enforce a right against the respondent to make certain payments which are due to it. In this regard, the petitioner seeks a direction to the respondents to decide upon its application pending before the respondents. Therefore, since a partner has the implied authority to act and carry on business in the usual way and can bind his firm, Mr. Sajjad Ahmad Khan can file this constitution petition on behalf of the other partners without written authorization from the other partners.

4. The next question that arises is whether his act can be subsequently ratified by the other partners. It has been held in the cases titled "Rala Singh and others Vs Babu Bhagwan Singh & Sons" (AIR 1925 Rangoon 30) and "Muhammad Azam Muhammad Fazil & Co, Karachi Vs Messers N.A. Industries, Karachi" (PLD 1977 Karachi 21) that submission to arbitration by one partner can be ratified by a co-partner so as to be binding on the firm. It was held that such authorization need not be formal or in writing. By reading Sections 18 and 19 of the Partnership Act, 1932 together I find that the Partnership Act declares every partner to be an agent of the firm for the purpose of business of the firm and every act of the partner which is done to carry on business, in the usual way, binds the firm. The partnership business belongs to each and every partner jointly and severely. Hence, there is no distinction between the partner and the firm. In such a situation there is no requirement under the law that one partner be duly authorized by the other partner in writing to file a constitutional petition. This is because one partner can seek to enforce a right on behalf of all the partners, through a constitutional petition. In such cases, authority can be implied or inferred from the conduct of the partners. In the instant case the Petitioner has placed on file the Deed of Association of Persons as well as a copy of an earlier petition filed by the partnership to show that the same partners previously had also instituted a writ petition through same partner. Therefore, the said partner was authorized by the other partners to institute the instant petition.

5. The final objection raised was with respect to the subsequent filing of documents by the partner by the firm and non-joinder of parties. The subsequent filing of documents arose on account of the fact that the title of the petitioner does not disclose that it is a partnership firm hence, this Court at the very outset asked the petitioner to explain its legal status as the same was not clear from the contents of the Petition. Learned Law Officer objected on the ground that in terms of the given title of the petitioner it appears that the petitioner is a proprietor. Furthermore, no document has been appended to show that the petitioner is a partnership. Learned Law Officer then objected that consequence of subsequent filing would create serious disability to raise objections, if they are allowed to be rectified by placing documents before the Court.

6. To my mind, in the instant case, this amounts to a technical objection. No doubt the petitioner is not described as a partnership firm in the petition and it is only upon being questioned that it became apparent that this petition has been filed by a partner of a partnership firm. However, since the main objection with respect to the authorization of the partner filing the petition and the documentation required for the purpose of filing the petition has been decided in favour of the Petitioner, therefore, subsequent filing of the documents will not have a critical effect on the maintainability of the writ petition. In any event the Hon'ble Supreme Court of Pakistan has held time and again that if technicalities can be avoided. Reliance is placed to cases of Brig. Muhammad Bashir vs. Abdul Karim (PLD 2004 SC 271), Sajawal Khan vs. Wali Muhammad (2002 SCMR 134) and M/s. Al-raham Travels and Tours (Pvt.) Ltd. vs. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others (2011 SCMR 1621).

7. The subsequent filing of Deed of Association and ex-post facto rectifications by the partner is accepted. As such it has cured the technical defects in filing of the instant petition.

8. Now to come up for arguments on 16-5-2013.

(R.A.) Order accordingly

PLJ 2014 Lahore 265 [Bahawalpur Bench Bahawalpur]

Present: Shahid Bilal Hassan, J.

AHMED RAZA SULTAN etc.--Petitioners

versus

SENIOR MEMBER BOARD OF REVENUE, etc.--Respondents

W.P. Nos. 756, 846 & 745 of 2013/BWP, decided on 22.11.2013.

Constitution of Pakistan, 1973--

----Arts. 199 & 212--Constitutional petition--Subsequent orders of suspension were challenged through writ petition--Question of jurisdiction of High Court for entertaining writ petitions--Petitions were not maintainable in terms of bar contained in Art. 212 of Constitution of service matter--Question of--Whether order of suspension in interim/interlocutory or final in nature and whether High Court can interfere into vires of interlocutory order in writ jurisdiction--No writ petition is entertain-able or lies against terms and conditions of service including the suspension from service as the jurisdiction of High Court is barred under Art. 212 of Constitution--Service Tribunal, the right forum, to agitate the matter of suspension and other matters relating to terms and conditions of service and not High Court--Orders passed by an Authority, under terms and conditions of service rules, even though without jurisdiction or mala fide cannot be challenged by filing writ petition before High Court as the provisions contained in Art. 212 of Constitution ousts jurisdiction of all other Courts including High Court and same can only be challenged before Service Tribunal--Jurisdiction of High Court is ousted by way of Art. 212 of Constitution and it is only Service Tribunal before whom such like matters can be agitated, even though the departmental orders have been passed without jurisdiction and with mala fide intention--Fundamental rights have been infringed by way of impugned orders, the writ jurisdiction of High Court cannot be invoked and civil servants cannot bypass Service Tribunal, the proper forum to agitate the questions/matters regarding service--High Court lacks jurisdiction to interfere into the matters relating to terms and conditions of service, for which Service Tribunal has exclusive jurisdiction--Petitions are not entertain-able being barred by jurisdiction contained in Art. 212 of the Constitution and resultantly same are dismissed. [Pp. 279, 281 & 282] A, D, E, F & G

1996 SCMR 1165; 1991 SCMR 1041; 2009 MLD 766; 2009 YLR 1021.

Suspension Order--

----Scope of--Suspension means to stop an official/officer from performing his duties temporarily and not permanently, same is distinguishable from permanent removal from service--Even, during the period of interim suspension, the person so suspended continues to hold office and receive pay or subsistence allowance during that period, though he is deprived of from actually performing functions of that office. [P. 280] B

Suspension Order--

----An order of suspension, pending a departmental enquiry is not a punishment--An order of suspension, pending a departmental enquiry is not a punishment. [P. 281] C

M/s. M.A. Ghaffar-ul-Haq, Muhammad Amir Niaz Bhadaira and Ch. Shafi Muhammad Tariq, Advocates for Petitioners.

Malik Muhammad Mumtaz Akhtar, Addl. A.G. assisted by Sardar Shahzad Ahmad Khan Dhukkar, A.A.G. and Mr. Mahmood Ahmad Bhatti, Advocate for Respondent No. 11 (in W.P. No. 745 of 2013).

Mr. Masood Kareem, SCO, Board of Revenue Punjab, Lahore

Date of hearing: 25.09.2013

Judgment

By way of this single judgment, this Court intends to dispose of the above captioned three writ petitions, as in all the three, the order dated 02.02.2013 passed by Secretary to the Chief Minister Co-ordination Punjab, Lahore alongwith subsequent orders regarding their suspension have been assailed as the writ petitions are inter connected and interlinked.

1. Tersely, the facts leading towards these writ petitions are as such that petitioner Ahmed Raza Sultan (in W.P. No. 756 of 2013) was posted as Tehsildar, Bahawalnagar vide notification dated 31.07.2012, who joined on 03.08.2012; during his posting at Bahawalnagar, he received order "Tehsildar Bahawalnagar to examine and report" on the application of Ahmed Yar son of Allah Ditta (Petitioner in W.P. No. 745 of 2013) regarding a Mutation No. 60, entered on 22.09.1972 and sanctioned on 02.10.1972 from Addl. District Collector Bahawalnagar (Umer Farooq/petitioner in W.P. No. 846/2013). The petitioner sent the application to Girdawr Halqa for report as per law on 11.10.2012, which needful was done and report was submitted before him on 15.10.2012; the petitioner (Ahmed Raza Sultan) summoned the parties relating to the said mutation and conducted inquiry, found that donor Mst. Gaman was murdered in the year 1969 and her brother Ahmed Yar got lodged a case FIR No. 55 of 1969 under Section 364, 302, 34 of, PPC, at P.S. Donga Bonga, District Bahawalnagar against her (Mst. Gaman) husband namely Muhammad Yar Khan and Muhammad Amin, brother of her husband (who were subsequently convicted and sentenced). The petitioner (Ahmed Raza Sultan) found that the said Mutation No. 60 was based on fraud and impersonation just to deprive of the legal heirs of Mst. Gaman from their legal shares. During his inquiry, it was found that Mst. Faiz Elahi (donee) was mentally retired and unable to get her statement recorded. He compiled his report and submitted the same to the Addl. District Collector Bahawalnagar (Umer Farooq/ petitioner in W.P. No. 846/2013) authorized as District Collector, on 25.10.2012 for further appropriate legal action, who vide order dated 31.10.2012 ordered to review the fraudulent Mutation No. 60 and subsequent mutations passed on the basis of said mutation and sent the matter to the petitioner Ahmed Raza Sultan (then Tehsildar Bahawalnagar). On receipt of said order, he (Ahmed Raza Sultan) ordered Girdawr Halqa to comply with the order as per law; that on 02.11.2012, he (Ahmed Raza Sultan) received another order of the Collector on the application of Ahmed Yar (Petitioner in W.P. No. 745 of 2013) filed against the Naib Tehsildar Donga Bonga/Revenue Circle Bahawalnagar and pursuant to said order, the petitioner (Ahmed Raza Sultan) got entered Mutation No. 499 sanctioned on 03.11.2012 by reverting the disputed property measuring 536 kanals situated in Khata No. 28 and land measuring 400 kanals falling in Khata No. 41, Mauza Barra Sajwar Khan in favour of Mst. Gaman from Mst. Faiz Elahi and Asmat Rafique, respectively. He (Ahmed Raza Sultan) also got entered mutation of Inheritance No. 500 on 10.11.2012, sanctioned on 12.11.2012, in favour of the legal heirs of Mst. Gaman (deceased) in accordance with law; that some of the property in dispute was got by Respondent No. 6/District Coordination Officer, Mandi Baha-ud-Din in the name of his relative namely Asmat Rafique son of Muhammad Rafique, who approached the petitioner (Ahmed Raza Sultan) through D.C.O. Bahawalnagar in order to reverse the orders passed by him reviewing the fraudulent Mutation No. 60, but he (Ahmed Raza Sultan) refused, so he was got transferred to Haroonabad on 05.01.2013 and also got lodged FIR No. 36 of 2013 against the petitioner (Ahmed Raza Sultan). The Respondent No. 6 having his influence in the Chief Minister Secretariat Punjab got issued an order on 29.01.2013 on the verbal orders of Chief Minister Punjab through which the Commissioner Sahiwal Division was directed to file a report before the Chief Minister Secretariat, who summoned the petitioner (Ahmed Raza Sultan) through telephonic message via Assistant Commissioner Haroonabad and Umer Farooq, Additional District Collector (petitioner in W.P. No. 846/2013) on 30.01.2013 at 11.00 a.m., while Ahmad Yar (Petitioner in W.P. No. 745 of 2013) got telephonic message through Naib Tehsildar Donga Bonga to appear before Commissioner Sahiwal Division on 30.01.2013, all rushed towards Sahiwal for appearing before the Commissioner Sahiwal/Respondent No. 4, who orally questioned regarding Mutation No. 60 and asked the petitioners (Ahmed Raza Sultan and Umer Farooq) to sit in the adjoining room but thereafter they were never called again till 6.00 p.m. and they left the office of Commissioner, Sahiwal/Respondent No. 4 after submitting their brief stances. It has been averred in the petition of Ahmed Yar that the said Commissioner asked from him that how much money he paid to the Tehsildar (Ahmed Raza Sultan) and Additional District Collector (Umer Farooq) for getting orders of review of Mutation No. 60, but as he had not paid any amount, so he narrated the same facts before the Commissioner, Sahiwal. It came to the knowledge of the petitioners that Commissioner, Sahiwal/Respondent No. 4 sent the following recommendations to the Secretary Coordination, Chief Minister Secretariat, Lahore:--

A. Mr. Omer Farooq Alvi, ADC Bahawalnagar and Mr. Ahmed Raza Sultan, then Tehsildar Bahawalnagar and now Tehsildar Haroonabad, may be suspended from service immediately on accounts of misuse of powers, gross misconduct, negligence and corruption.

B. An inquiry under the PEEDA Act may be initiated against the two officers mentioned above and the Patwari and Kanoongo, who are already under suspension.

C. The matter may be referred to the Anti-Corruption Establishment for registration of an FIR and further action according to law.

D. The matter of delay in police action may be got further probed into should the competent authority deem it necessary.

E. The issue of how senior officers, like the ADC in the instant matter, are transferred out or suspended on complaints of corruption or maladministration on request of DCOs or Commissioners may also be looked into as a matter of policy. Necessary guidelines in this respect may also be developed, it is submitted.

Thereafter, Respondent No. 2/Secretary Coordination, Chief Minister Secretariat, Lahore passed the following order on report of the Commissioner, Sahiwal:--

(i) The recommendations of the Inquiry Officer/Commissioner Sahiwal Division mentioned at (A), (B) & (C) of the enclosed inquiry report, are approved.

(ii) Regarding recommendation at D, Inspector General of Police may please appoint a Senior Officer to inquire into this aspect within 3 days.

(iii) Chief Secretary may please be review the matter pointed out at E of the recommendation.

On the basis of above said order, the petitioner (Ahmed Raza Sultan) was placed under suspension vide Order No. 383-2013/137-E(F)II dated 02nd February, 2013 and petitioner (Umer Farooq Alvi) was placed under suspension vide Order No. SO (C-III) 12-42/2011 dated 04th February, 2013.

1. Being aggrieved of the above said impugned proceedings by the Commissioner Sahiwal Division Sahiwal, impugned order dated 02.02.2013 by the Respondent No. 2 and subsequent orders of suspension passed by Respondent No. 1 dated 02.02.2013 and 04.02.2013 have been assailed by the petitioners (Ahmad Raza Sultan/Tehsildar and Umer Farooq/Additional District Collector) through the captioned writ petitions separately inter alia on the following grounds:--

2. That the petitioners acted in lawful manner and committed no illegality while allowing the review of fraudulent mutation and implementing the same in the revenue record in accordance with the provisions of West Pakistan Land Revenue Act, 1967 as no proceedings can be done against or on behalf of the dead persons as provided under Order XXII of, CPC;

3. That the actions taken by the petitioners were in official capacity; hence, under the provisions of Section 181 of Land Revenue Act, 1967, all the proceedings conducted against the petitioners are void ab initio, without jurisdiction, without lawful authority and sheer abuse of power besides being coram non judice;

4. That the proceedings conducted by Respondent No. 4/ Commissioner Sahiwal are in violation of law, which are based on without adopting proper modus operandi provided under the law; hence, same is not tenable under the law;

5. That the proceedings taken against the petitioners are based on recommendations of Respondent No. 4 who has no jurisdiction to interfere in the matter of the petitioners, hence, same are not sustainable in the eye of law;

6. That the inquiry conducted cannot be said an inquiry as no statement of allegation, no list of witnesses, chance of cross-examination was handed over to the petitioners and they have been condemned unheard, which is violation of principle of audi alter am partum;

7. That the impugned orders of the respondents are coram non judice and abuse of process of law; hence, not sustainable and liable to be struck down.

8. Earlier, while dealing with the W.P. No. 756 of 2013, on 08.02.2013, this Court considered that the following questions emerging from the arguments advanced and documents made available:--

(i) Whether the competent authority applied its independent mind while passing the impugned order, which apparently lacking from the tenor of the order?

(ii) Whether in all the cases which had been reviewed by the concerned authorities in accordance with law, the Chief Minister has shown his indulgence for taking action against the alleged delinquents and what are those cases?

(iii) Whether the concerned respondents had not provided the right of appeal under relevant law against the said order and if appeal had already filed and operation of the order in review had already been stayed, then what was the extraneous consideration for initiating such speedy proceedings in this matter by the Chief Minister himself and appointed the Sub-enquiry Officer and then approved it for taking action against the petitioner and others?

(iv) Whether a fair opportunity as envisaged under Article 10-A of the Constitution of Islamic Republic of Pakistan has been granted to the petitioner while conducting the self-styled enquiry by Respondent No. 4?

(v) Whether without initiating any disciplinary proceedings under the PEEDA Act, the petitioner could be suspended?

(vi) Whether the placing of the matter for approval before the Chief Minister and after its approval from the competent authority or for that matter the forum where the appeal against the order in review would not prejudice as head of the province showing his annoyance regarding the passing of the order passed in review?

(vii) Whether the protection under Section 181 of the Land Revenue Act is not provided to the acts and actions taken by the Revenue Officer, which had been done bonafidely?

Taking up C.M. No. 02 of 2013 on the even date, this Court passed the following order:

"Subject to notice for the said date, the operation of impugned orders dated 02.02.2013 passed by the Respondents No. 1 & 2 shall remain suspended, meanwhile."

1. Being aggrieved of the above said order of this Court, the respondents filed a Civil Petition No. 519-L of 2013 titled "Senior Member B.O.R. Punjab, etc. vs. Ahmed Raza Sultan" before the Hon'ble Supreme Court and vide order dated 07.08.2013 the Hon'ble Supreme Court was pleased to convert the petition into appeal and partly allowed the same with the following observations:--

"The learned High Court, we may observe with respect, ought to have decided the question of jurisdiction in the first instance before passing any order suspending the operation of an order passed in departmental proceedings. ------------------------------.

1. In view of the fair stand taken by the learned Law Officer, we are persuaded to convert this petition into appeal and partly allow the same and by setting aside the impugned order of the learned High Court dated 08.02.2013, we direct that let the writ petition be fixed for hearing for a date in the next week and shall be decided within a fortnight."

2. Learned counsels for the petitioners have, inter alia, argued that the petitioners Umer Farooq and Ahmed Raza Sultan have jurisdiction under Sections 31(2), 172 and 172(2)(vi) of West Pakistan Land Revenue Act, 1967, so under the said provisions of law, the petitioners have acted purely in accordance with law. Adds that no wrong has been committed by the petitioners; that the order passed by the petitioner Ahmad Raza Sultan was subject to appeal against which the concerned aggrieved party has preferred and that is sub-judice before the competent forum; that only five minutes hearing was given to the petitioners which is in violation of Section 13 of the West Pakistan Land Revenue Act, 1967; that Commissioner, Sahiwal was not competent to hold inquiry against the petitioners; that the competent authority so as to take cognizance of the matter was learned Senior Member Board of Revenue, Punjab, Lahore and not the Chief Minister; that the ingredients of inquiry are missing as there was no charge sheet, reply, cross-examination of the witnesses; therefore, the inquiry is defective under the law. Lastly, argued that the petitioners have not challenged the transfer orders and terms & conditions of service, but have approached this Court for the infringement of their fundamental rights; therefore, this Court has ample jurisdiction to entertain such like writ petitions in order to shield the citizens/civil servant from illegal and unlawful acts of the Executive/High Ups. Relies on Corruption in Hajj arrangement in 2010 (PLD 2011 S.C. 963), Syed Mahmood Akhtar Naqvi vs. F.O.P. (2013 SCMR 1), Qadeer Ahmed vs. Punjab Provincial Cooperative (2003 PLC (C.S.) 770), Ammar Bibi vs. OSD (KLR 1986 Civil 213), Ahmad Ali vs. DEO (PLJ 2002 Lahore 2011), Brig. M. Bashir vs. Abdul Karim (PLD 2004 S.C. 271), Govt. of Sindh vs. Nazakat Ali (2011 SCMR 592), Hassan Din vs. Hafiz Abdul Salam (PLD 1991 S.C. 65), Shafia Salma vs. Taj-ul-Malook (2000 MLD 294), M. Ashfaq vs. The State (PLD 2002 Lahore 36), M. Jameel Das vs. The Pakistan (1999 CLC 514), Muhammad Saleh vs. Secretary (PLJ 2008 Lahore 772), Rehmat Ullah vs. Saleh Khan (PLJ 2007 S.C. 797), Khadim Hussain vs. Abid Hussain (PLD 2009 S.C. 419), Nazir Ahmad vs. Barkat Masih (2009 MLD 461), Mst. Raj Bibi vs. Sooba (PLJ 2002 S.C. 427), Muhammad Ayub Khoro vs. Pakistan (PLD 1960 S.C. 237), Abdul Rauf vs. Abdul Hameed Khan (PLD 1965 S.C. 671), Mazhar Ali vs. F.O.P. (PLJ 1992 S.C. 121), Misri through L.Rs. vs. M. Sharif, etc. (1997 SCMR 338), Maqsood Ahmad Khan vs. MBR (PLD 1981 Lahore 665), Govt. of Punjab vs. M/s. United Sugar (2008 SCMR 1148), M. Afzal vs. BOR (PLD 1967 S.C. 314), Mst. Kaneez Fatima vs. M. Saleem Salam (2001 SCMR 1493), Hizara Hilltrack vs. Mst. Qaisera Elahi (PLJ 2005 S.C. 925), Zahid Akhtar's case (PLD 1995 S.C. 530), M. Akram vs. MBR (2007 SCMR 289), Farukh J. Gulzar vs. Secretary Local Govt. (1998 SCMR 2222), Munawar Khan vs. Niaz Muhammad (1993 SCMR 1287), Abdul Rasheed vs. Riaz-ud-Din (1995 SCMR 999) and M. Saleh vs. United Grain (PLD 1964 S.C. 97).

3. On the contrary, learned Addl. Advocate General Punjab assisted by learned counsel appearing on behalf of the respondents have strongly opposed these writ petitions mainly on the ground that this Court lacks jurisdiction to entertain the matter in hand under Article 212(2) of the Constitution; that whole the proceedings regarding Mutation No. 60 were conducted with mala fide and no proof of insanity of Mst. Faiz Elahi was brought on record; that at the relevant time Ahmed Raza Sultan was not Tehsildar of the Qanoon-goi of the land where mutation was to be reviewed; that whole the inquiry proceedings were conducted in fair way and in fact the inquiry by Commissioner, Sahiwal was to ensure for regular enquiry if warranted so that a person should not be dragged in the agony of enquiry without any lawful excuse. Lastly prayed for dismissal of the writ petitions under discussion. Relies on Govt. of Sindh through Secretary Education and Literacy Department and others vs. Nizakat Ali and others (2011 SCMR 592), Miss Zubaida Khatoon vs. Mrs. Tehmina Sajid Sheikh and others (PLJ 2011 SC 533), Dr. Ghazanffarullah, Medical Superintendent, Tehsil Headquarter Hospital, Bhalwal and 2 others vs. Secretary Health, Government of the Punjab, Civil Secretariat, Lahore and 6 others (PLJ 2011 Lahore 392), Mulazim Hussain vs. Director General Agricultural Research and 3 others (PLJ 2010 Lahore 71), Khalid Mahmood Wattoo vs. Government of Punjab and others (1998 SCMR 2280), Abdul Bari vs. Government of Pakistan and 2 others (PLD 1981 Karachi 290), Muzaffar Hussain vs. The Superintendent of Police, District Sialkot (2002 PLC (CS) 442-Lahore), Khalil-ur-Rehman and others vs. Government of Pakistan and others (PLD 1981 Karachi 750), Sher Muhammad vs. Director General of Pakistan, Telegraph and Telephones Department and another (PLD 1979 Karachi 1), Iqan Ahmed Khurram vs. Government of Pakistan and others (PLD 1980 Supreme Court 153), Habib Bank Limited and others vs. Syed Zia-ulHassan Kazmi (1998 SCMR 60), Mushtaq Sadiq Khokhar vs. Engineer-in-Chief Pakistan Army, G.H.Q. and another (1985 SCMR 63), Muhammad Amin Mughal vs. Secretary Local Government and Rural Development Department and 4 others (2002 PLC (C.S.) 816-Lahore), Syed Zamiruddin vs. Government of Sindh through Secretary, Education Department, Sindh Karachi and 2 others (1997 PLC (C.S.) 702-Karachi High Court), Khurshid Ahmad Naz vs. Deputy Commissioner, D.G. Khan and another (1983 PLC (C.S.) 46-Lahore High Court), WAPDA vs. Commissioner for workmen's Compensation and authority under the payment of Wages Act and others (2001 PLC 527-Lahore), I.A. Sharwani and others vs. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), Syed Saghir Ahmed Naqvi vs. Province of Sindh through Chief Secretary, S & GAD, Karachi and others (1996 SCMR 1165), Dr. Sabir Zameer Siddiqui vs. Mian Abdul Malik and 4 others (PLD 1991 Supreme Court 226), Muhammad Shafique vs. Director Education (SE), Sargodha Division and another (1997 PLC (C.S.) 199), Government of Balochistan, CWPP & H Department and others vs. Nawabzada Mir Tariq Hussain Khan Magsi and others (2010 SCMR 115) and Deputy Commissioner/Registrar, Sialkot and 2 others vs. Hamid Khaldi and 4 others (1987 CLC 2360-Lahore).

4. Heard.

5. The stance taken up by the writ petitioners in W.P.No. 756 of 2013 and W.P. No. 846 of 2013 is to the effect that they both acted in good faith and strictly in accordance with law on the application of an aggrieved applicant (petitioner in W.P. No. 745 of 2013) and decided the same by redressing his grievance and resultantly the impugned inquiry followed by the order of suspension dated 02.02.2013 and 04.02.2013 respectively could not have been passed by the respondents which act of the respondents has been called into question by the petitioners. While responding to the allegations of the petitioners, the respondents in their refutations have mainly called into question the jurisdiction of this Court for entertaining these Writ Petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It is the stance of the respondents that these Writ Petitions are not maintainable in terms of bar contained in Article 212 of the Constitution being essentially an outcome of a Service Matter, involving the vires of terms and conditions of service and therefore, jurisdiction under Article 199 of Constitution cannot be invoked by the petitioners, if at all the petitioners are aggrieved, they may, if so advised, approach the Service Tribunal concerned being competent and having the jurisdiction to entertain and redress the grievance of the petitioners. For ready reference, Article 212 of the Constitution is reproduced infra:--

"212. Administrative Courts and Tribunals.--(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--

(a) matters relating to the terms and conditions of persons who are or have been] in the service of Pakistan, including disciplinary matters;

(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or

(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.

(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court, shall abate on such establishment:

Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.

(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."

Apart from the said defence, the respondents have categorically denied the allegations levelled by the petitioners while stating that they have proceeded against the petitioners (Tehsildar and Addl. District Collector) strictly in accordance with law as no illegality has been committed by them.

1. According to the record made available, on 09.10.2012 Ahmed Yar son of Allah Ditta (Petitioner in W.P. No. 745 of 2013) filed an application before Additional District Collector, Bahawalnagar (Petitioner in W.P. No. 846 of 2013) for review of Mutation No. 60 dated 02.10.1972, on the basis of which one Mst. Gaman Bibi widow of Muhammad Yar Khan made Tamleek of land measuring 936 kanals situated at Mauza Sajwar Khan in favour of Mst. Faiz Elahi daughter of Shahray Khan i.e. the sister of Muhammad Yar Khan and all subsequent mutations. The stance taken up in the said application was to the effect that Mst. Gaman was murdered in the year 1969 whereas the accused of the said murder case were witnesses to the said mutation and there was a bar on Tamleek in favour of Mst. Faiz Elahi as she was not an heir of Mst. Gaman. While entertaining the said application seeking review of Mutation No. 60 dated 02.10.1972, the Addl. District Collector, Bahawalnagar directed the Tehsildar, Bahawalnagar to "Examine and Report" on 09.10.2012. The Tehsildar, on receiving the said application directed the Girdawar to report as per law on 11.10.2012. On 25.10.2012, the Tehsildar, Bahawalnagar gave his report recommending review of Mutation No. 60 dated 02.10.1972 and subsequent mutations as well. In response to the said recommendations, the Addl. District Collector, Bahawalnagar vide order dated 03.10.2012 allowed the review of all mutations resulting into Mutation No. 500 dated 11.10.2012 reverting the land in favour of the legal heirs of Mst. Gaman.

2. The said act on the part of the petitioners gave birth to various complaints by the aggrieved alleging gross misconduct and misuse of powers by the Additional District Collector and Tehsildar, Bahawalnagar. In response to the said complaints, the Commissioner, Sahiwal Division, Sahiwal, was ordered to conduct an inquiry by the Chief Minister, Punjab through his Secretary (Co-ordination). The needful was done by the Commissioner, Sahiwal on the following issues:-

3. Whether the order passed by the Additional District Collector Bahawalnagar to review the mutations has been passed in accordance with the settled principles of law?

4. Whether Mr. Ahmad Raza Sultan, Tehsildar was competent to file report and subsequently to review the said mutations and whether the land in question falls in his jurisdiction?

5. Ahmad Yar (Petitioner in W.P. No. 745 of 2013), one Asmat Rafique Bajwa son of Muhammad Rafique Bajwa, Umer Farooq Alvi, Additional District Collector, Bahawalnagar (Petitioner in W.P. No. 846 of 2013), Ahmad Raza Sultan, Tehsildar Bahawalnagar (Petitioner in W.P. No. 756 of 2013), Muhammad Hanif, concerned Patwari, Ghulam Murtaza, Assistant Commissioner Bahawalnagar, all appeared in the inquiry proceedings along with complete relevant record and their respective stance/defence was recorded. After hearing all the said concerned and perusing the record, the Commissioner Sahiwal/Inquiry Officer made the following recommendations:--

A. Mr. Omer Farooq Alvi, ADC Bahawalnagar and Mr. Ahmed Raza Sultan, then Tehsildar Bahawalnagar and now Tehsildar Haroonabad, may be suspended from service immediately on accounts of misuse of powers, gross misconduct, negligence and corruption.

B. An inquiry under the PEEDA Act may be initiated against the two officers mentioned above and the Patwari and Kanoongo, who are already under suspension.

C. The matter may be referred to the Anti-Corruption Establishment for registration of an FIR and further action according to law.

D. The matter of delay in police action may be got further probed into should the competent authority deem it necessary.

E. The issue of how senior officers, like the ADC in the instant matter, are transferred out or suspended on complaints of corruption or maladministration on request of DCOs or Commissioners may also be looked into as a matter of policy. Necessary guidelines in this respect may also be developed, it is submitted.

1. The above stated inquiry report resulted in the suspension of the petitioner Ahmad Raza Sultan, Tehsildar vide impugned order dated 02.02.2013 on the allegation of gross misconduct, while the petitioner Umer Farooq Alvi, Addl. District Collector was suspended vide impugned order dated 04.02.2013.

2. The first issue to be discussed and addressed at this juncture is with regards to the objection raised by the respondents' side regarding the maintainability of these writ petitions stating therein that this Court lacks jurisdiction under Article 199 of the Constitution to entertain the same in view of the bar contained in Article 212 of the Constitution. In this regard, this Court is guided by the observation rendered in order dated 07.08.2013 passed by the Hon'ble Supreme Court of Pakistan in CPLA No. 519-L of 2013 preferred by the respondents whereby the said August Court observed as under:

"The learned High Court, we may observe with respect, ought to have decided the question of jurisdiction in the first instance before passing any order suspending the operation of an order passed in departmental proceedings."

Similar view has been taken in Govt. of Sindh vs. Nazakat Ali (2011 SCMR 592) and 1997 PLC (C.S.) 12-Supreme Court of Pakistan.

1. Admittedly, petitioners namely Ahmad Raza Sultan and Umer Farooq Alvi are Government Servants and fall within the ambit of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (hereinafter referred to the said Act) in terms of Section 1 of the said Act in case of allegation of misconduct, corruption, etc. The Competent Authority to initiate proceedings against the concerned includes the "Chief Minister" as per Sec. 2(f)(i) of the said Act. Under Sec.16 of the said Act, departmental appeal and review lies to the accused or the aggrieved and finally appeal lies before the Punjab Service Tribunal. Interestingly, in this case, the petitioners have not admittedly availed the remedy/remedies available to them under the said mandatory provisions of law and instead have opted to file these constitutional petitions before this Court under Article 199 of the Constitution. In the landmark judgment of Peer Muhammad s case (2007 SCMR 54), the August Supreme Court held that, "The provisions as contained in Art.212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide did not confer upon High Court jurisdiction to act in the matter in view of Constitutional ouster as contained in Art.212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such like matter."

Similar view has been taken in 1998 SCMR 280, 1992 SCMR 365, PLD 1984 S.C. 539, 1997 SCMR 167, 1997 SCMR 169, 1990 SCMR 999, 1999 SCMR 784, PLD 1995 S.C. 530, 1998 SCMR 2280, 1992 PLC (C.S.) 1020, PLD 1980 S.C. 153, 1996 SCMR 1165, PLD 1981 Karachi 290, PLD 1981 Karachi 750 and C.P. No. 2123-L of 2009.

In case of Muzaffar Hussain (2002 PLC (C.S.) 442), it has been held that, "When final order cannot be interfered with by High Court, interference in interim order will manifestly frustrate the object of Law.

Even in S.M. Waseem Ashraf's case (2013 SCMR 338), it has been held that, "Any forum or Court which had no jurisdiction to decide the main matter on a case before it, had no jurisdiction to decide any ancillary matter or incidental matter thereto."

Similarly, in a case reported as "Province of Punjab vs. Muhammad Ashraf" (2000 PLC (CS) 118), it has been observed that, "Suspension from service---Jurisdiction of Service Tribunal in respect of matters relating to terms and conditions of service----Matters relating to terms and conditions of civil servants, would include suspension from service of a civil servant and Service Tribunal alone had the jurisdiction to adjudicate upon such matter in appropriate proceedings---Jurisdiction of High Court in the matter was barred under Art. 212 of Constitution of Pakistan (1973)." Similar view has been adopted by this Court in Muhammad Ashraf Chaudhary's case (2001 PLC (C.S.) 781), Muhammad Amin Mughal's case (2002 PLC (C.S.) 816), Mrs. Shah Jahan, Headmistress, Government Girls Elementary School, Pindi Bhattian's case (2003 PLC (C.S.) 1416) and Hashmat Nabi Ali's case (2004 PLC (C.S.) 1254).

1. In view of the above discussion, it can safely be observed that no writ petition is entertain-able or lies against terms and conditions of service including the suspension from service as the jurisdiction of this Court is barred under Art. 212 of Constitution. It is only the Service Tribunal, the right forum, to agitate the matter of suspension and other matters relating to terms and conditions of service and not this Court.

2. Now, this Court adverts to the question as to whether the order of suspension is interim/interlocutory' orfinal' in nature and whether this Court can interfere into vires of interlocutory orders in writ jurisdiction. In this regard the definition of word suspend' andsuspension' as elaborated in the Black's Law Dictionary (Ninth Edition) by Bryan A. Garner is reproduced for ease of reference infra:--

`Suspend: 1. To interrupt; postpone; defer . 2. To temporarily keep (a person) from performing a function, occupying an office, holding a job, or exercising a right or privilege .

Suspension: The act of temporarily delaying, interrupting, or terminating something . 2. The state of such delay, interruption, or termination . 3. The temporary deprivation of a person's powers or privileges, esp. of office or profession; esp., a fairly stringent level of lawyer discipline that prohibits the lawyer from practicing law for a specified period, usu. from several months to several years . Suspension may entail requiring the lawyer to pass a legal ethics bar examination, or to take one or more ethics courses as continuing legal education, before being readmitted to active practice. 4. The temporary withdrawal from employment, as distinguished from permanent severance . 5. An ecclesiastical censure that can be temporary or permanent, and partial or complete. 6. The process of staying a judgment pending an appeal to the Supreme Court." According to the Oxford Dictionary, "Suspension" means, "action of debarring or state of being debarred, specially for a time, from a function or privilege; temporary deprivation of ones office or position or a gain, state of being temporarily kept from doing or deprived of something." as held in M. Memon vs. Dacca Improvement Trust (PLD 1964 Dac. 671).

The word `interim' inter alia means one for the time being; one made in the meantime and until something is done; an interval of time between one event, process or period and another; belonging to or taking place during an interim; temporary; something done in the interim, a provisional arrangement adopted in the meanwhile; done, made, occurring etc. in or in the meantime; provisional.

While the word `interlocutory' inter alia means "pronounced or made during the course of suit, divorce, trial or the like order pronounced during the course of an action, not finally decisive of a case or suit; provisional decision in a case."

1. From the bare reading of the above referred definitions, it is crystal clear that suspension means to stop an official/officer from performing his duties temporarily and not permanently, same is distinguishable from permanent removal from service. Even, during the period of interim suspension, the person so suspended continues to hold office and receive pay or subsistence allowance during that period, though he is deprived of from actually performing the functions of that office. Meaning thereby, he remains the holder of his office and is not punished in any way till the completion of the enquiry. The punishment, if any, is imposed on him only after completion of the enquiry and on the basis of the result of the enquiry. This means that an order of suspension, pending a departmental enquiry is not a punishment. So it can safely be gathered that the orders/recommendations assailed through these writ petitions are not final in nature rather interim/interlocutory. For ready reference, the impugned order is reproduced as under:--

(i) The recommendations of the Inquiry Officer/Commissioner Sahiwal Division mentioned at (A), (B) & (C) of the enclosed inquiry report, are approved.

(ii) Regarding recommendation at D, Inspector General of Police may please appoint a Senior Officer to inquire into this aspect within 3 days.

(iii) Chief Secretary may please be review the matter pointed out at E of the recommendation.

Against interlocutory order no writ petition lies or entertainable. Even otherwise, same are considered to be final; admittedly it has been passed by a competent authority according to terms and conditions of the Service Rules. The orders passed by an Authority, under terms and conditions of service rules, even though without jurisdiction or mala fide cannot be challenged by filing writ petition before this Court as the provisions contained in Art. 212 of the Constitution of Islamic Republic of Pakistan, 1973 ousts jurisdiction of all other Courts including this Court and same can only be challenged before Service Tribunal. In this regard safer reliance can be placed on Tipu Sultan Khan's case [2009 YLR 1021], in which it has been observed that, "Art. 199----Constitutional petition against interlocutory orders---Maintainability----Constitutional petition would not lie against an interlocutory order, unless the controversy between the parties affecting the right was decided finally and it came within the ambit of the case decided." Same view has been reiterated in Khuram Zulfiqar's case (2009 MLD 766).

1. The record made available before this Court clearly depicts that while holding inquiry, the Commissioner, Sahiwal communicated the petitioners through Govt. offices and not otherwise and till the passing of impugned orders/ recommendations whole the process was conducted in a fair way. As discussed above, the jurisdiction of this Court is ousted by way of Art. 212 of the Constitution and it is only the Service Tribunal before whom such like matters can be agitated, even though the departmental orders have been passed without jurisdiction and with mala fide intention. Therefore, mere adding a word that fundamental rights have been infringed by way of impugned orders, the writ jurisdiction of this Court cannot be invoked and civil servants cannot bypass Service Tribunal, the proper forum to agitate the questions/matters regarding service. In this regard guidance can be sought from Sharwani and others' case (1991 SCMR 1014), wherein it has been held that, `Civil Servant cannot bypass Service Tribunal by adding a ground of violation of fundamental rights----Tribunal has jurisdiction even in violation of fundamental rules." Even in Saghir Ahmed Naqvi's case (1996 SCMR 1165), it has been held that, "Statute excluding a right of appeal from interim order could not be bypassed by brining under attack such interim order in Constitutional jurisdiction---Party effected had to wait till it matures into final order and then to attack it in proper exclusive forum." In the present case, the petitioners Ahmed Raza Sultan and Umer Farooq have had ample opportunity to assail their suspension order before the learned Service Tribunal, which is the proper forum in this regard for getting their grievance redressed. Moreover, the other allegations levelled by the parties are concerned, when the writ petitions are not competent and this Court has no jurisdiction, there is no need to discuss the same.

2. So far as the writ petition of Ahmad Yar petitioner (W.P. No. 745 of 2013) is concerned, same seems to be based on mala fide intention and apparently in collusion with the other two writ petitioners namely Ahmad Raza Sultan, Tehsildar and Umer Farooq Alvi, Additional District Collector; because the petitioner Ahmed Yar, being a private person, is not aggrieved party of the impugned orders dated 02.02.2013 and 04.02.2013, by way of this Ahmad Raza Sultan and Umer Farooq Alvi were suspended; therefore, his writ petition Bearing No. 745 of 2013 is not maintainable on this sole ground.

3. In view of the above discussion, this Court lacks jurisdiction to interfere into the matters relating to terms and conditions of service, for which Service Tribunal has exclusive jurisdiction. Moreso, it is considered view of this Court as well as Hon'ble Supreme Court that while exercising writ jurisdiction, the factual controversy cannot be taken into account; rather the same is to be agitated before the learned Civil Court, which is the ultimate forum in this regard, because to resolve the factual questions evidence of both the parties, oral as well as documentary, has to be recorded and this Court being Court of Law, cannot exercise that jurisdiction. Each and every case has its peculiar facts and circumstances and the Courts of Law have to thwart the same according to its legal acumen in order to administer justice. The case law/judgments referred to by the learned counsels for the petitioners, with utmost respect, are on different facts and circumstances and do not render assistance/help to the petitioners' cause.

4. For what has been discussed above, this Court comes to the conclusion that all the captioned writs are not entertain-able being barred by jurisdiction contained in Art. 212 of the Constitution and resultantly same are dismissed, being devoid of any force.

(R.A.) Petitions dismissed

PLJ 2014 Lahore 283

Present: Shahid Bilal Hassan, J.

Mst. HASEENA BIBI--Petitioner

versus

JUSTICE OF PEACE, etc.--Respondents

W.P. No. 4719 of 2013, decided on 9.10.2013.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 154--Constitutional petition--Registration of criminal case--So-called police encounter--Right of every citizen to get his case investigated from investigating agency--Sufficient incriminating material available to connect with commission of crime--Validity--Mere pendency of judicial inquiry was no bar to registration of criminal case if cognizable offence is made out from information--No bar to register a criminal case even if judicial inquiry was pending--It is an admitted position that judicial inquiry conducted by inquiry officer is a quasi judicial proceedings and any aggrieved person can get his or her grievance redressed against police officials, if dissatisfied with proceeding in accordance with law--By approaching police official who on receiving information is bound to proceed under Section 154, Cr.P.C. only if a cognizable offence is made out and investigate matter independently and strictly in accordance with law--Right to get an FIR lodged in such a situation is an independent right available to every citizen who is aggrieved in such situation--Incharge police officer is duty bound to register a criminal case against the person complained u/S. 154, Cr.P.C. as report of judicial inquiry is no bar in way for lodging of an FIR and after registration of case, conduct fair investigation independently in accordance with law--Petition was allowed. [Pp. 287, 288 & 291] A, B, C & D

2003 PLC (CS) 759, 2004 MLD 1609, 2012 PCr.LJ 1797, PLD 2002 Lah. 78 & PLD 2007 SC 539, rel.

Syed Zeeshan Haider, Advocate for Petitioner.

Sardar Muhammad Shahzad Khan Dhukkar, AAG for Respondents.

Mr. Umair Mohsin, Advocate for Respondents No. 3 to 7.

Date of hearing: 5.9.2013.

Order

Through this constitutional petition, the petitioner has called into question the order dated 05.7.2013 passed by the learned Ex-Officio Justice of Peace at Liaqatpur, District Rahimyar Khan whereby he declined to make an order so as to register a criminal case on the application of the petitioner.

1. Brief facts which gave birth to the institution of this petition are to the effect that the petitioner filed an application on 18.6.2013 before the learned Addl. Sessions Judge/Justice of Peace at Liaqatpur, District Rahimyar Khan stating therein that on 08.5.2013 the son of the petitioner namely Muhammad Tariq aged 25-years was present in his house wherein one Hameed son of Mustafa and one Arabi son of Nazir Ahmad who were known to the son of the petitioner came and asked Muhammad Tariq to join them as they had been invited to some function. The behaviour of the said two was mysterious which led the petitioner to advise her son not to join them but the son went alongwith the said two. After reasonable time when the son of the petitioner did not return, the petitioner went to the house of one of the said two acquaintances and before reaching the said house the petitioner saw some police officials the names of which have been mentioned in the application forcibly taking the petitioner's son alongwith them in a while Suzuki car. The said act was witnessed by 30/40 persons living in the vicinity and certain names of witnesses were also mentioned in this regard. The petitioner alongwith her witnesses went to one Mian Manzoor Ahmed who is an influential person of the area and narrated the whole story who contacted the SHO of police station Sehja, the said SHO confessed having taken the petitioner's son. The petitioner met her son on 09.5.2013 at the police station where her son was confined in the lockup. She was informed that police officials were physically torturing her son and are keeping him at private places and there were threats of dire consequences by the said SHO to the effect that the son of the petitioner will be murdered in a police encounter and if she intends to save his life she should pay an amount of Rs. 5,00,000/-. Since the petitioner is a poor lady she could not arrange the said amount. On 13.5.2013 at about 10.00 a.m. in the morning the petitioner was informed that her son had been murdered in a so-called police encounter. The petitioner there and then alongwith witnesses again approached Mian Manzoor Ahmed who contacted the SHO concerned who stated that since the desired amount had not been given, therefore, the petitioner's son namely Muhammad Tariq had been murdered in a police encounter. The petitioner also approached the SHO concerned, who in presence of witnesses admitted that he murdered her son in a fake police encounter in the command of senior police officers. It has also been alleged that Hameed and Arabi who took the petitioner's son admitted that they were given illegal gratification so as to hand over the petitioner's son to the SHO for the purposes of fake police encounter. Now there are threats by the SHO concerned that in case the petitioner initiates any criminal proceedings against him, the other son of the petitioner was also murdered. On these grounds, the petitioner approached the learned Ex-Officio Justice of Peace who called for report and parawise comments from the SHO concerned wherein it came to light that the son of the petitioner was murdered and case FIR No. 108/2013 dated 13.5.2013 under Sections 324, 353, 148 read with Section 149 of, PPC at Police Station Sehja was registered. On receiving comments from the police, the learned Ex-Officio Justice of Peace declined the petitioner's application being not maintainable as statedly judicial inquiry was in progress. Being left with no other option the petitioner has filed this writ petition seeking declaration so as to initiate criminal proceedings against Respondents No. 2 to 7.

2. The learned counsel for the petitioner has contended that there is sufficient incriminating material available with the petitioner to connect the respondents with the commission of crime; that only criteria which is fixed for registration of FIR is providing the information of commission of any cognizable offence and no authority is competent to refuse registration of FIR; that the stance taken by the petitioner and her witnesses in this petition is completely in line with their statements made during the course of judicial inquiry and their deposition made before judicial Magistrate has illegally been ignored by learned judicial Magistrate; that the evidence led by the petitioner is sufficient to prove a charge of 302 of, PPC; that it is the right of every citizen of Pakistan to get his case investigated from the investigating agency of the country and also to get his case prosecuted through prosecution of the country then why the petitioner should be deprived from this right; that there is no mala fide with the petitioner in filing of the petition as real son who allegedly was involved in criminal activities has been murdered and all the cases pending against him (if any) have reached to an end with his murder; that the officials who are allegedly participants of so-called police encounter are neither involved in the murder of petitioner's son nor they have been arrayed as accused into this petition, because they neither made any encounter nor they committed the murder of petitioner's son; that the piece of evidence are required to be not only thoroughly investigated but also required expert's evidences including Call Data Records as cell numbers used into this occurrence are mentioned in this petition and which could only be collected through investigation process and petitioner being a woman of advanced age is not in the position to collect and produce the same before Court; that the contention raised by the learned counsel that issuance of direction for registration of criminal case will be a futile exercise as after registration of case the case would be cancelled is nothing more than as open threat and an expression of boundless powers shown by police authorities and keeping in view this attitude of police authorities the august Supreme Court of Pakistan held in 2012 SCMR 428 that cases of police encounter should be investigated by any independent agency so that impartial investigation can be made possible; that the parents of deceased Muhammad Nadir never made any statement in favour of police officials during the judicial inquiry rather they only showed their reluctance to make any statement; that neither any police official received any scratch nor any vehicle of police was hit by any built nor it was only the accused who received fire-arm injuries this shows the fakeness of police encounter; that the verdict given in judicial inquiry is not strong enough to straight away reject the evidence which is likely to be produced before the Court as proposed in this petition and that it was strongly argued by the learned counsel for the respondents that as the judicial inquiry was conducted by a judicial Magistrate and after recording material evidence, the learned judicial Magistrate has exonerated the police officials from any criminal activity and declared the police encounter as genuine one but it is a settled principle of law that judicial inquiry is not a device which could exonerate or incriminate any person of the charge. In support of his contentions, the learned counsel for the petitioner has relied on "Mumtaz Hussain v. Deputy Inspector-General, Faisalabad and 7 others" (PLD 2002 Lahore 78).

3. On the contrary, the learned AAG assisted by the learned counsel for the Respondents No. 2 to 7 have vehemently opposed this writ petition and have supported the impugned order while maintaining that the same is strictly in accordance with law and according to the facts of the petitioner's case as it has been observed by the learned Ex-Officio Justice of Peace in the order dated 5.7.2013 that the petitioner may file a private complaint and it was on the said stance that the learned Ex-Officio Justice of Peace disposed of the application of the petitioner. Adds that since the judicial inquiry has been finalized wherein all the police officials have been exonerated, therefore, no fruitful purpose will be served so as to initiate any criminal proceedings against Respondents No. 2 to 7 who are all police officials. There are 34-cases registered against Muhammad Tariq. Relied on "Muhammad Masood v. S.S.P., Railways, Rawalpindi and others" (2000 P.Cr.LJ 67), "Khizer Hayat and others v. Inspector General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470) "Muhammad Ramzan v. Additional Sessions Judge/ Justice of Peace, Kabirwala, District Khanewal and 6 others" (2005 P.Cr.LJ 1579), "Asma Jahangir, Chairperson Human Rights Commission of Pakistan v. Senior Superintendent of Police (Operations), Lahore and 3 others" (2005 P.Cr.LJ 1517) and "Riaz Ahmed v. The State" (2012 YLR 1260).

4. Heard the learned counsel for the parties and perused the record.

5. It is an admitted fact that the son of the petitioner died in a police encounter after which case FIR No. 108/2013 dated 13.5.2013 was lodged and resultantly on the order of the learned Sessions Judge concerned, judicial inquiry was ordered to be conducted which was done by the learned Magistrate/Inquiry Officer at Khanpur who exonerated all the police officials by holding that both the deceased in the police encounter namely Muhammad Nadir and Muhammad Tariq alongwith three others committed dacoity at the night of 12.5.2013 and looted gold ornaments, cash, motorbike and fled away. The police party on information chased them and when they reached near the said accused they (accused) started firing at the police party. In this scenario the police was left with no other option except to act in accordance with law which needful was done and resultantly both Muhammad Nadir and Muhammad Tariq died in the police encounter which was altogether lawful. It is the case of the petitioner that her stance was not considered by the learned Magistrate who sided with the police party and resultantly exonerated them.

6. In the impugned order, the learned Ex-Officio Justice of Peace has observed as under:

"2. Report of SHO received, which disclosed that her son has been murdered in case FIR No. 108/2013 under Sections 324/ 353/148/149, PPC at Police Station Sehja. In this regard judicial inquiry is in progress. Therefore, the petition in hand is not maintainable. However, the petitioner may file a private complaint, if so advised. With this observation, the petition stands disposed of. File be consigned after its completion."

In the case of "Noor Ahmad v. D.I.G., Police, D.G. Khan Division and 7 others" (2005 YLR 1545) wherein it has been held by this Court that "purpose of judicial inquiry was to find out facts and mere pendency of the same was no bar to register a criminal case." In another case reported as "Muhammad Saeed (Rana Saeed Ahmed) v. Home Secretary, Province of Punjab and 7 others" (2000 YLR 1607), wherein it has been held that holding of judicial inquiry under S.176, Cr.P.C. was no bar for registration of second F.I.R., under S. 154, Cr.P.C.

1. In light of the above said judgments of this Court, the impugned order cannot hold field as mere pendency of judicial inquiry was no bar to the registration of a criminal case if otherwise a cognizable offence is made out from the information passed on to the SHO, therefore, the learned Ex-Officio Justice of Peace did not pass a just order in accordance with law as there was no bar to register a criminal case against the concerned even if judicial inquiry was pending while following the above two precedents of this Court.

2. It is an admitted position that judicial inquiry conducted by the Magistrate/Inquiry Officer is a quasi-judicial proceedings and any aggrieved person can get his or her grievance redressed against police officials, if dissatisfied with the said proceeding in accordance with law. The report in this regard is not binding on the aggrieved person, it is rather an independent right available to every citizen of Pakistan to knock the door of law i.e. by approaching the police official concerned who on receiving information is bound to proceed under Section 154, Cr.P.C., only if a cognizable offence is made out and investigate the matter independently and strictly in accordance with law. The right to get an FIR lodged in such a situation is an independent right available to every citizen who is aggrieved in such a situation. In the case in hand, the report of the judicial inquiry has even otherwise not considered the stance of the petitioner as required but the right of the petitioner cannot be laid to rest at this stage as her son has been done to death by the police in an unlawful manner according to her stance raised in her application. On this point this Court is guided by the case of "Rahat Naseem Malik v. President of Pakistan and others" (2003 PLC (CS) 759), in which it has been held that Inquiry officer performs, quasi judicial functions and is not supposed to pronounce a judicial verdict, as Judge of a Court of law is required to do so under recognized procedure laid down for conducting, legal proceedings. In another important case reported as "Sakhi Muhammad v. The State" (2004 MLD 1609) in which it has been held that respondents alleged that in judicial inquiry it was found that incident was a genuine police encounter and deceased were rightly killed by police---one of deceased persons was not involved in any case in whole of his life whereas other one was a proclaimed offender---F.I.R. and police Karwai had not mentioned that a pistol was also recovered from dead body of deceased was not involved in any case---F.I.R. further mentioned that rifle was lying besides the dead body of other person who was proclaimed offender---Both deceased were gun-downed from a distance of 1-1/2 miles away---Was neither argued nor brought on record that occurrence had taken place in the shop and the shots fired by the police also hit on the wall or shutter of said shop---Not a single scratch was found on any of police officials who were 17 in number---Crime empties taken from the spot were not sent to fire-arm expert alongwith rifle and pistol of both deceased to ascertain whether they made a fire or not---Prima facie a case was made out against respondents and they would be given sufficient opportunity to produce their evidence before the trial Court----Order passed by Sessions Judge was set aside, in circumstances. In another similar case reported as "Aslam Jan Khan v. The State through Additional Advocate-General, Bannu and 8 others" (2012 P.Cr.LJ 1797), wherein it has been held that registration of criminal case against the police---petitioners had sought issuance of a writ to District Police Officer and S.H.O. Police Station concerned, directing them to register a case against the Police/Raiding party----Counsel for the police raised preliminary objection on the maintainability of the constitutional petition on the ground that petitions were not maintainable as alternate remedy of complaint by virtue of Chapter XVI of the, Cr.P.C., was available to the petitioners, which was not only adequate, but efficacious, as well----Validity---Said preliminary objection, qua the maintainability of the constitutional petition, was not sustainable in view of peculiar circumstances of the case---Allegation had been made by S.H.O. against the petitioners and the deceased that they had made firing on the Police party, but none from the raiding party had sustained a single injury, while all the injuries were on the persons of the petitioners and his brother and one person had lost his life in the same incident---Constitutional petition was allowed." The same view has been taken in case reported as "Mumtaz Hussain v. Deputy Inspector-General, Faisalabad and 7 others" (PLD 2002 Lahore 78), in which it has been held that mere fact that inquiry was conducted by a judicial Magistrate regarding cause of death would not bar registration of criminal case u/S. 154, Cr.P.C.--Registration of criminal case is independent right of aggrieved person---Such person can report the matter to incharge of concerned police station, who is bound under S. 154, Cr.P.C. to record the report and conduct investigation in accordance with law---Opinion qua the cause of death is not binding on police officer holding investigation under Chap. XIV, Cr.P.C. or Court of law holding trial of accused person---Inquiry report may be relied upon by prosecution or defence and may be given due weight if the conclusion arrived at by the Magistrate are consistent with the evidence brought on record---During investigation or trial, police officer or Court of law, as the case may be, can legitimately arrive at a contrary finding in the light of evidence brought on record.---Police torture---Death in police custody----Judicial inquiry exonerating accused person from charge of murder of the person who died in police custody---Complainant and eye-witnesses had seen police giving Chhitter blows on buttocks of the deceased---Effect---Cause of death was relevant qua the offence under S.302, P.P.C. but it had no bearing qua other offences of illegal arrest and confinement of deceased and injuries caused to him during police custody---criminal case, in the present case ought to have been registered by police under the relevant provisions of Penal Code, 1860, including Ss.302 & 342., P.P.C.---High Court directed Senior Superintendent of Police to register criminal case against accused police officials---Constitutional petition was allowed in circumstances.

3. The application of the petitioner was carefully examined, a perusal of which shows that a cognizable offence is made out against the concerned. Now, the question which comes to light is what ought to be done on the application of the petitioner. In another landmark judgment of the Hon'ble Supreme Court of Pakistan reported as "Muhammad Bashir v. Station House Officer, Okara Cantt., and others" (PLD 2007 Supreme Court 539) in which it has been held by the Hon'ble Supreme Court of Pakistan that no authority vested with an officer In-charge of the police station or with anyone else to hold an inquiry into the correctness or otherwise of the information which was conveyed to the SHO for the purpose of recording of an FIR. Further the Hon'ble Supreme Court has observed "any FIR registered after such exercise i.e. determination of the truth or falsity of the information conveyed to the SHO would get hit by the provisions of Section 162, Cr.P.C. Existence of an F.I.R. was no condition precedent for holding an investigation nor was the same a prerequisite for the arrest of a persons concerned with the commission of cognizable offence; nor does recording of an F.I.R. mean that the S.H.O. or a police office deputed by him was obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any accused persons nominated therein must be arrested---Check against lodging of false F.I.Rs. was not refusal to record such F.I.Rs, but punishment of such informants under S. 182, P.P.C. etc. which should if enforced, a fairly deterrent against misuse of the provisions of S.154, Cr.P.C." Further the Hon'ble Supreme Court in the said judgment in Para No. 27 observed and held as under:--

"The conclusions that we draw from the above, rather length discussion, on the subject of F.I.R., are as under--

(a) no authority vested with an Officer Incharge of a Police Station or with anyone else to refuse to record an F.I.R. where the information conveyed, disclosed the commission of a cognizable offence;

(b) no authority vested with an Officer Incharge of Police Station or with any one else to hold any inquiry into the correctness or otherwise of the information which is conveyed to the S.H.O. for the purposes of recording of an F.I.R.

(c) any F.I.R. registered after such an exercise i.e. determination of the truth or falsity of the information conveyed to the S.H.O., would get hit by the provisions of Section 162, Cr.P.C.

(d) existence of an F.I.R. is no condition precedent for holding of an investigation nor is the same a prerequisite for the arrest of a person concerned with the commission of a cognizable offence;

(e) nor does the recording of an F.I.R. mean that the S.H.O. or a police officer deputed by him was obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any accused nominated therein must be arrested; and finally that, (f) the check against lodging of false F.I.Rs. was not refusal to record such F.I.Rs. but punishment of such informants under S.182, P.P.C. etc. which should be, in enforced, a fairly deterrent against misuse of the provisions of S.154, Cr.P.C."

In the light of above discussion, the Incharge Police Officer of a police station is duty bound to register a criminal case against the person complained under Section 154, Cr.P.C. as report of judicial inquiry is no bar in the way for lodging of an FIR and after registration of case, conduct fair investigation independently in accordance with law. With utmost respect the judgments referred to by the learned counsel for Respondents No. 2 to 7 do not attract to the facts of the petitioner's case as the said precedents have no nexus with the lodging of FIR in presence of judicial inquiry against the police officials on behalf of a person who is dissatisfied with the same.

1. Pursuant to above discussion and while relying on a judgment of the apex Court "Muhammad Bashir (supra)", this writ petition is allowed and the District Police Officer, concerned is directed to register a criminal case against Respondents No. 3 to 7, immediately under intimation to the Deputy Registrar (Judicial) of this Bench within a week positively.

(R.A.) Petition allowed

PLJ 2014 Lahore 291 [Rawalpindi Bench Rawalpindi]

Present: Arshad Mahmood Tabassum, J.

LIAQAT ALI KHAN and another--Petitioners

versus

AHMAD HASSAN SIDDIQUI and 5 others--Respondents

Civil Revision No. 652/D of 2013, heard on 13.1.2014.

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

----S. 115--Scope--Revisional jurisdiction--Concurrent findings of facts--Scope of revisional jurisdiction of High Court is quite narrow and normally concurrent findings of facts cannot be disturbed in revisional jurisdiction unless High Court comes to conclusion that findings of Courts below are result of mis-reading or non-reading of evidence available on record or contrary to settled law. [P. 295] A

2012 SCMR 1373, rel.

Sale deed--

----Claim was based upon sale-deed, execution and presentation--Sale deed being registered document, has presumption of truth attached--Validity--It is well settled law that no oral evidence can take preference over documentary evidence. [P. 296] B

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

----S. 129--Presumption of correctness--Sale deed was not challenged or got set aside by petitioner from any forum--Although, it is claim of petitioners that same was got transferred by predecessor in interest at their back, but fact again remains that the transfer of ownership in office of Cantonment Board was also not challenged by petitioner--An act which was performed in ordinary course of business has presumption of correctness under provisions of Section 129 of Order, 1984. [P. 296] C

Decision ofJirga--

----Question of--Whether respondent had authorized members of Jirga to resolve dispute on behalf along or on behalf of other legal heirs--Oral assertions of petitioners coupled with decision of Jirga--Validity--Such document cannot be given any weight for reason that neither scribe nor members of Jirga appeared before trial Court to prove same. [P. 296] D

Exhibited Document--

----Exhibition of document is one thing and its proof as prescribed by law, is another thing--Exhibition of document does not mean that it stands proved, rather party relying upon such document, is supposed to prove same in accordance with law and procedure provided in Q.S.O. 1984. [P. 297] E

Limitation Act, 1908 (IX of 1908)--

----Art. 144--Adverse possession--Question of limitation--Not claiming adverse possession--Suit was instituted after a period of about 9 year, when respondent instituted suit--Suit was not barred by time at time of institution--Validity--There is no plea of adverse possession raised in written statement--In a suit barred on title, Art. 144 of Limitation Act, is applicable and period of 12 years would start from the date, when possession of petitioner had become adverse to respondents. [Pp. 297 & 298] F

2007 SCMR 1510, rel.

Mr.Sarfraz Ali Khan, Advocate for Petitioners.

Syed Akhlaq Ahmad, Advocate for Respondents.

Date of hearing: 13.1.2014.

Judgment

This petition under Section 115, CPC, calls in question judgment and decree dated 04.10.2013, passed by the learned Additional District Judge, Rawalpindi, whereby he dismissed appeal of the petitioners, arising out of judgment and decree dated 14.12.2011, whereby the learned trial Court decreed the suit of the plaintiffs/respondents for possession of House No. 300/B-III, Peshawar Road, Rawalpindi Cantt. (suit house) and recovery of mesne profit, as prayed for.

1. Succinctly stated, the facts relevant and necessary for the disposal of the instant petition are that the respondents/plaintiffs on 20.03.1999, instituted a suit for possession of the suit house claiming therein that their predecessor-in-interest, namely, Haji Ghulam Qadir had purchased the said house from the defendants (petitioners herein) through registered Sale Deed No. 2357, dated 14.05.1987 and constructive possession of the same was also handed over to him at the time of registration of the said sale-deed; that at that time, the suit house was occupied by Military Estate Office (MEO), which was got vacated by their father and possession of the same was handed over to him; that their late father also applied for transfer of the said house in the record of Cantonment Board and the same was accordingly mutated in his name; that subsequently, the petitioners forcibly occupied the said house; that the late father of the respondents, through intervention of the respectables, tried to get back the possession of the same, whereupon the petitioners demanded an amount of Rs. 1,00,000/- over and above the sale consideration on the pretext that the suit house was sold by them at less than its market value; that thereafter the petitioners rented out the said house in the year 1992 at the rate of Rs. 4,000/- per month and the said rate of rent was enhanced to Rs. 5,000/- per month in the year 1995 and in the year 1998 to Rs. 6,250/- per month, as such total amount of rent came to Rs. 3,61,500/- till the institution of the suit and that the petitioners were utilizing the suit house, therefore, they were obliged to pay total amount of rent on account of utilizing the same.

2. The suit was contested by the petitioners/defendants through filing their written statement, wherein they raised several preliminary objections, including limitation, improper valuation of the suit for purpose of jurisdiction and recovery of special costs under Section 35-A, CPC etc. On merits, they pleaded that in fact, the sale agreement, executed between the late father of the respondents and the petitioners, was for a sale consideration of Rs. 6,20,000/-, out of which, an amount of Rs. 40,000/- was paid in advance vide agreement dated 29.01.1987 and the registered sale-deed was prepared for an amount of Rs. 2,30,000/-, which was not in accordance with the said agreement; that the possession of the suit house was never handed over to the late father of the respondents and that the suit house was illegally transferred in his name by the Cantonment Board authorities without hearing the petitioners; that a Jirga was convened to resolve the dispute between the parties and the said Jirga decided the matter in favour of the petitioners and that in view of the decision made by the said Jirga, an amount of Rs. 2,30,000/- was paid, to the respondents by the petitioners' side and that the suit was liable to be dismissed.

3. The divergent pleadings of the parties led the learned trial Court to frame the following issues:--

ISSUES

1. Whether the plaintiffs have not come to the Court with clean hands? OPD

2. Whether the suit is barred by law of Limitation? OPD

3. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction, if so, its effect? OPD

4. Whether the defendants are entitled to special cost under Section 35-A, CPC, if so, to what extent? OPD

5. Whether the defendants have taken the possession of disputed property forcibly and illegally in December, 1987? OPP

6. Whether the plaintiffs are entitled to the decree for possession of House No. 300/B-III Peshawar Road, Rawalpindi and mesne profit as well as Rs. 10,000/- per month till the date of decree as charges for use and occupation of suit property? OPP

6-A. Whether the plaintiffs have received back consideration amount as such the sale-deed is without consideration and has no value? OPD

1. Relief.

2. Both the parties led their pro and contra evidence and ultimately, the learned trial Court, vide judgment and decree dated 14.12.2011 decreed, the suit. The learned, trial Court decided all issues in favour of the respondents/plaintiffs except Issue No. 5, which was decided against them. On appeal, the learned First Appellate Court maintained the findings of the learned trial Court on all issues and dismissed the appeal

3. It is in this background that the petitioners have preferred the instant revision petition.

4. Learned counsels for the petitioners has argued that judgments of both the Courts below are based upon mis-reading and non-reading of evidence available on record; that both the learned Courts below have failed to appreciate that the respondents remained silent for quite a sufficient time and did not come forward to claim possession of the suit house and ultimately, instituted the suit after lapse of more than 12 years and as such not only the suit was barred by lime, but also their conduct reflected upon the fact that their claim was baseless; that both the learned Courts below failed to appreciate that the petitioners had established on record that a Jirga was convened for the resolution of dispute between the parties and, the said Jirga, vide its decision dated 13.08.1990 (Ex.D4) had resolved the dispute between them, hence, the respondents were no more justified to institute the suit, rather were estopped to bring the same; that it is quite clear in the statement of D.W.1 that Rs. 2,40,000/- were paid back to the respondents' predecessor-in-interest in compliance with the decision of the Jirga, hence, the respondents were left with no cause of action to bring the instant suit and that the impugned judgments and decrees are liable to be set aside.

5. Conversely, the learned counsel for the respondents have fully supported, the impugned judgments and decrees.

6. I have heard the learned counsel for the parties and I myself perused the documents annexed with this petition.

7. At the very outset, it may be observed that the petitioners are before this Court in its revisional jurisdiction under Section 115, CPC, and concurrent findings of facts recorded by both the learned Courts below are in their way. Moreover, the scope of revisional jurisdiction of this Court is quite narrow and normally the concurrent findings of facts cannot be disturbed in revisional jurisdiction unless this Court comes to the conclusion that the findings of Courts below are result of mis-reading or non-reading of evidence available on record or contrary to the settled law. Reliance in this regard, may be placed upon the case of the Noor Muhammad (2012 SCMR 1373), wherein, the august Supreme Court has ruled out as under:

"6. There is no cavil to the proposition that the jurisdiction of High Court under Section 115, C.P.C. is narrower and that the concurrent findings of facts cannot be disturbed in revisional jurisdiction unless Courts below while recording findings of facts had either misread the evidence or have ignored any material piece of evidence or those are perverse and reflect some jurisdictional error."

1. Keeping in view the above criterion, it appears that the claim of the plaintiffs/respondents is based upon sale-deed dated 14.05.1987, execution and presentation whereof for registration has not been denied by the petitioners. Even otherwise, the said, sale-deed, being a registered document, has presumption of truth attached to it. In Para No. 1 of their written statement, the petitioners have maintained that the sale was agreed for Rs. 6,20,000/-; However, this plea of the petitioners cannot be entertained in view of recitals of the sale-deed Ex.P.3, which shows that the consideration of the suit house was fixed at Rs. 2,30,000/- and that the same was received by the petitioners. It is well settled law that no oral evidence can take preference over the documentary evidence. The said sale-deed even still holds the field, and has not been challenged or got set aside by the petitioners from any forum. Further circumstance, which strengthens the claim of the respondents/plaintiffs qua the ownership of the suit house is that the same was transferred in the name of their father in the record of the Cantonment Board. Although, it is the claim of the petitioners that the same was got transferred by the predecessor-in-interest of the respondents at their back, but the fact again remains that the said transfer of ownership in the office of Cantonment Board was also not challenged by the petitioners before the relevant forum. Moreover, an act which was performed in the ordinary course of business has presumption of correctness under the provisions of Section 129 of the Qanun-e-Shahadat Order, 1984.

2. In order to rebut the above positive evidence produced by the respondents, only oral assertions of the petitioners coupled with decision of Jirga (Ex.D4) are there. The said document cannot be given any weight for the reason that neither scribe nor members of the said Jirga appeared before the learned trial Court to prove the same. Needless to mention that in the said document itself, it has been mentioned as under:--

1. Moreover, in the said decision of Jirga, the presence of the parties has not been marked, nor their signatures appear. At the top of the said decision, it appears that the predecessor-in-interest of the respondents was represented by his son, namely, Ahmad Hussain Siddiqui. However, it is nowhere mentioned as to whether the said. Ahmad Hussain Siddiqui had authorized, the members of Jirga to resolve the dispute on his behalf alone or on behalf of other legal heirs of the late predecessor-in-interest of the respondents, if their predecessor had died by that time. D.W.1 Hassan Khan in his statement has stated that the members of the said Jirga had died, but the petitioners did not produce anybody, who would have been well conversant with their hand-writing or signatures to prove the said document. He has further stated during cross-examination:

1. In the light of above statement of Hassan Khan (D.W.1), the decision of the Jirga Ex. D.4, loses it value and cannot be relied upon to dislodge the claim of the respondents qua the suit house, which is based upon the registered sale-deed, a document which is an admitted document between the parties.

2. It may be observed that the learned counsel for the petitioners has laid much emphasis on the fact that Ex. D.4 is a document, which has been exhibited in evidence, hence, should be relied upon. In this regard, suffice it to observe that exhibition of a document is one thing and its proof, as prescribed by law, is another thing. Moreover, exhibition of a document does not mean that it stands proved, rather the party relying upon such document, is supposed to prove the same in accordance with law and procedure provided in Qanun-e-Shahadat Order, 1984. Learned counsel for the respondents, during the course of arguments, has pointed out that the said document was got exhibited by the learned counsel for the petitioners in his absence and that in this regard, an application for de-exhibition of the said document was also submitted by the learned counsel for the respondents before the learned trial Court.

3. As regards question of limitation, if the version of the petitioners is taken as correct, the parties remained disputing with each other regarding the suit house up till 13.08.1990, when according to the petitioners, a Jirga gave its decision, meaning thereby till that time, the petitioners were not claiming adverse possession, qua the suit house. The instant suit was instituted on 20.03.1999, thus, a period of about 9 years had elapsed, when the respondents instituted the suit. Thus, the suit was not barred by time at the time of its institution. Moreover, there is no plea, of adverse possession raised in the written statement of the petitioners. In a suit based on title, Article 144 of Limitation Act is applicable and the period of 12 years would start from the date, when the possession of the petitioners had become adverse to the respondents. In this regard, reliance may be placed upon the case of Muhammad Anwar and another (2007 SCMR 1510), the relevant portion whereof reads as under:

"There has been consensus of judicial opinion that Article 142 of Limitation Act governs a suit based on possessory title while Article 144 of Limitation Act governs a suit based on proprietary title. It may also be observed that possession for any length of time would not be adverse unless it is open, hostile and notorious to the knowledge of the real owner."

1. In the tight of above discussion, I am quite clear in my mind that both the Courts below have properly and lawfully appreciated the evidence available on record and correctly decreed the suit of the respondents/plaintiffs to which no exception can be taken. This revision petition, therefore, fails and the same is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 298 (DB) [Multan Bench Multan]

Present: Amin-ud-Din Khan and Shoaib Saeed, JJ.

MUHAMMAD ASHIQ KHAN--Appellant

versus

MUHAMMAD SHARIF and 5 others--Respondents

R.F.A. No. 132 of 2007, heard on 22.4.2013.

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

----S. 96 & O. XII, R. 2--No specific issue was framed with regard to agreement and its cancellation--Applications for comparison of signatures and thumb-impression but was not decided by trial Court prior to decision of suit--Objection with regard to non-framing of issue--Framing or non-framing of an issue was not fatal as party--Validity--If the agreement and cancellation thereof is proved, it will not make any difference with regard to proving and passing a decree on the basis of agreement--Plaintiffs were under obligation to independently prove entering into agreement between the parties, payment of earnest money and receipt thereof--Appellant are not sustainable under the law--Defect in the judgment of trial Court with regard to non-framing of specific issue with regard to existence and cancellation of agreement is not sustainable under the law--Applications were with regard to prove agreement comparison of signatures and thumb-impression upon agreement and its cancellation--Defect alleged by appellant with regard to decision of applications along with the main suit is not sustainable under the law--Appellant himself filed an appeal against the confirmation of the stay order--It is settled principle of law that a witness which has not been cross-examined on material points, his statement to that extent is presumed to have been admitted by other side, therefore, receipt is a document which remained unchallenged, therefore, findings of trial Court are in accordance with the evidence available on the file. [P. ] A, B, C, D, E & F

Mr.Naveed Hashmi, Advocate for Appellant.

M/s. Ch. AbdulGhani, Ch. Muhammad Siddique Gujjar, Sh. Tanzeel-ur-Rehman Ashraf and Mr. Abdul Samad Ali, Advocates for Respondents.

Date of hearing: 22.4.2013.

Judgment

Amin-ud-Din Khan, J.--Through this R.F.A. the appellant has challenged the judgment & decree dated 29.9.2007 passed by learned Senior Civil Judge, Dera Ghazi Khan whereby suit for specific performance filed by the respondents-plaintiffs was decreed.

1. Brief facts of the case are that respondents-plaintiffs on 16.8.2006 filed a suit for specific performance of agreement to sell dated 11.07.2006 with regard to the suit property, fully mentioned in the head-note of the plaint. Written statement was filed. The agreement on the basis of which suit was filed, was denied by the appellant-defendant. Appellant pleaded that he entered into the agreement to sell with regard to the suit property with Plaintiff No. 1 only through written agreement dated 1.7.2006, which was subsequently cancelled with the consent of the patties to that agreement. Learned trial Court framed the following issues on 24.2.2007:--

2. Whether the plaintiffs have no cause of action to file the suit? OPD

3. Whether defendant is entitled to recover special costs, if so, then to what amount? OPD

4. Whether the plaintiffs are entitled to the decree of specific performance of contract as prayed for in the plaint on the basis of agreement to sell dated 1.7.2006 after payment of Rs. 35,49,375/- and they have already paid Rs. 5,00,000/- to the defendant? OPP

5. Relief.

Parties were invited to produce their respective evidence. Plaintiffs produced Zafar Sajid, Wasika Navees as PW-1, Sultan Ahmad one of the plaintiffs appeared as PW-2, Muhammad Zubair as PW-3 while Hafiz Faqeer Bakhsh was appeared as PW-4 and they produced agreement to sell (Exh.P.1) and receipt of Rs. 5,00,000/-(Exh.P2), copy of jamabandi for the year 2003-2004 (Exh.P.3) as documentary evidence. On the other hand, defendant himself appeared as DW.1 and he also produced Syed Abid Ali as DW-2, Muhammad Tahir Hussain as DW-3 and Muhammad Asif Hussain as DW-4 and in documentary evidence he produced agreement and cancellation thereof (Exh.D.1), copy of Mutation No. 4008 Exh.D-2, copy of Mutation No. 5037 Exh.D-3, copy of Mutation No. 5043 Exh.D-4, copy of Mutation No. 5094 Exh.D-5, copy of Mutation No. 2755 Exh.D-6 and copy of Mutation No. 2718 as Exh.D-7. Learned trial Court after completion of the proceedings of the trial and after hearing the arguments of the learned counsel for the parties decreed the suit vide impugned judgment & decree dated 29.9.2007.

1. Learned counsel for the appellant has argued that no specific issue was framed with regard to agreement alleged by defendant and its cancellation thereafter which has been produced as Exh. D-1 and further that defendant-appellant moved two applications for comparison of the signatures and thumb-impressions upon Exh.D-1 but the same have not been decided by the learned trial Court prior to the decision of the suit and further that the findings recorded by the learned trial Court are against the evidence available on the file, therefore, prayed that appeal be accepted and impugned judgment & decree passed by learned trial Court be set aside.

2. On the other hand, learned counsel for the respondents-plaintiffs has argued that the judgment & decree passed by the learned trial Court are absolutely in accordance with law and there is no infirmity in the judgment & decree. Further that they have fully proved the agreement to sell (Exh.P-1) as well as receipt (Exh.P-2) and even the same have not been disputed when the witnesses of the plaintiffs-respondents were cross-examined. Learned counsel further argues that even if it is proved that Exh.D-1 was entered between one of the plaintiffs and the defendant and subsequently same was cancelled, it will make no difference and will not effect the legality of Exh.P-1 and therefore, Exh.D-1 cannot be a hurdle in the way of passing a decree for specific performance in their favour.

3. We have heard learned counsel for the parties at full length and have also gone through the record as well as oral evidence with their able assistance.

4. So far as objection of the learned counsel for the appellant with regard to non-framing of issue is concerned, we have noticed that framing or non-framing of an issue is not fatal as a party pleads a case and keeps its pleadings in its mind while producing the evidence with regard to his pleadings. When a case has been pleaded by the defendant and he has led his evidence to prove his pleading, in this eventuality framing or non-framing of an issue with regard to entering into an agreement by the defendant and Plaintiff No. 1 which is Exh.D-1 is immaterial. Furthermore, when it is the case of the defendant-appellant himself that the agreement was arrived at between defendant and Plaintiff No. 1, which is Exh.D-1 and subsequently same was cancelled by the mutual consent of parties to that agreement, we have noticed that if that agreement (Exh.D-1) and its cancellation is proved or admitted, the effect of that which learned counsel for the appellant wants to draw is that, "how it is possible that after cancellation of an agreement after few days the defendant-appellant will enter into another agreement with regard to the sale of the property", we are afraid that this inference the learned counsel for the appellant presses and asks this Court to be drawn is also unreasonable and we cannot accede to the arguments advanced by the learned counsel for the appellant. We have questioned to the learned counsel that whether there is any substantial difference in the price of the land mentioned in the agreement which is alleged by the defendant-appellant himself which has been produced as Exh.D-1 and in the agreement which has been pressed into service through the suit for specific performance which is Exh.P-1, the answer is that the agreed price for transfer of the suit property in both the agreements is the name. In this view of the matter, in our view if the agreement Exh.D-1 and cancellation thereof is proved, it will not make any difference with regard to proving and passing a decree on the basis of Exh. P-1. As the plaintiffs were under obligation to independently prove entering into agreement between the parties, payment of earnest money and receipt thereof, therefore, the arguments advanced by learned counsel for the appellant-defendant are not sustainable under the law. In the circumstances of this case when the learned counsel for the appellant has not highlighted any prejudice caused to the appellant-defendant for non-framing of specific issue with regard to Exh.D-1, in this regard we can take light from "Mst. Sughra Bibi alias Mehran Bibi versus Asghar Khan and another" (1988 SCMR 4) and "Muhammad Akram alias Raja versus Muhammad Ishaque" (2004 SCMR 1130), therefore, the arguments of learned counsel to allege defect in the judgment of the learned trial Court with regard to non-framing of specific issue with regard to existence and cancellation of Exh.D-1 is not sustainable under the law.

5. So far as decision of applications filed by the appellant-defendant prior to the decision of the suit is concerned, we have noticed that application for comparison of signatures and thumb-impression on Exh.D-1 was moved on 5.9.2007 and the other application under Order XII, Rule 2 of, CPC to admit the agreement dated 1.7.2005 and its cancellation on 9.7.2005, which is Exh.D-1 was also moved on 5.9.2007. We have gone through the interim order dated 8.9.2007 wherein the learned trial Court has observed that the plaintiffs have refused to accept the existence of the document, therefore, the defendant to prove the same through his evidence and the case is for the evidence of the defendant. As both the applications were with regard to prove Exh.D-1, comparison of signatures and thumb-impression upon Exh. D-1 and its cancellation and when plaintiffs-respondents denied from that document, decision of both the applications at the time of final decision of the suit is not contrary to law as we have observed that even if the document Exh.D.1 is proved or admitted it cannot be a hurdle in the way of the plaintiffs to prove their agreement to sell, which is Exh.P.1. In this view of the matter, the defect alleged by the learned counsel for the appellant with regard to decision of the applications along with the main suit is not sustainable under the law. We have also noticed that appellant himself filed an appeal against the confirmation of the stay order by the learned trial Court in favour of the plaintiffs in the shape of F.A.O. No. 51 of 2007 before this Court. The order of grant of stay was modified and the plaintiffs were directed to deposit the remaining amount of contract amounting to Rs. 35,49,375/- within one month from the date of the order and the learned trial Court was also directed to decide the suit till 30.9.2007 and it was also directed that if it has to undertake day to day proceedings, the same be carried out. Learned counsel for the respondents has argued that it was the defendant-appellant to sought instructions from this Court to decide the case within a specific date and he was delaying the matter himself by filing the applications which were filed in order to delay the proceedings of the trial as the full price was paid by the plaintiffs-respondents under the orders of h this Court.

6. So far as grant of decree by the learned trial Court in the suit is concerned we have noticed that plaintiffs-respondents fully proved the execution of agreement to sell (Exh.P.1) and receipt of earnest money which has been produced as Exh.P.2 through reliable confidence inspiring evidence while plaintiffs produced the scribe and two marginal witnesses and one of the plaintiffs also appeared as PW.2. There is no defect in the evidence produced by the plaintiffs-respondents rather learned counsel for the defendant failed to cross-examine upon the material facts narrated in the examination-in-chief by the witnesses of the plaintiffs. It is settled principle of law that a witness which has not been cross-examined on material points, his statement to that extent is presumed to have been admitted by the other side, therefore, receipt Exh.P-2 is a document which remained unchallenged, therefore, findings of learned trial Court are in accordance with the evidence available on the file.

7. In this view of the matter, we see no illegality or infirmity in the judgment & decree passed by the learned trial Court. Resultantly this appeal being without any substance stands dismissed with cost throughout.

(R.A.) Appeal dismissed

PLJ 2014 Lahore 303

Present: Abdus Sattar Asghar, J.

Rai MUHAMMAD RIAZ--Petitioner

versus

EJAZ AHMAD etc.--Respondents

F.A.O. No. 367 of 2011, heard on 14.3.2013.

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

----S. 47--During execution proceedings sale-deed was got registered--Objection petition was dismissed by trial Court--Factual controversy--Question to be determined by Court executing decree--Validity--Objection petition relating to execution of a decree could be decided only after framing of issues and recording of evidence--It is duty of Court to ensure safe administration of justice keeping in view the substantial rights of the parties. [P. 307] A

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

----O. XXI, Rr. 100 & 103--Question pertaining to possession is to be decided by executing Court--Court executing decree was saddled with responsibility of framing issue and recording evidence to resolve question of possession--Validity--Executing Court was highly misconceived while holding that objection petition was not maintainable for the reason that he was not a party to suit. [P. 307] B

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

----S. 41--Constitution of Pakistan, 1973, Art. 10-A--Right to protect possession--Doctrine of lis pendense with dismissal of objection petition an order of final nature has been passed qua appellant without providing a fair opportunity of hearing violative to fundamental right of fair trial and due process protected under Art. 10-A of Constitution--Such dispossession of the matter leaving appellant with no remedy and forum cannot sustain in eye of law, therefore, liable to set aside. [P. 308] C

2003 SCMR 181, rel.

Ch. MuhammadMasood Jahangir, Advocate for Petitioner.

Ch.Imran Raza Chadhar, Advocate for Respondent No. 1.

Mian Muhammad Qamar-uz-Zaman, Advocate for Respondent No. 2.

Ch.Shahid Tabassum, Advocate for Respondent No. 3.

Date of hearing: 14.3.2013.

Judgment

This First Appeal is directed against the order dated 29.6.2011 passed by learned Senior Civil Judge, Sargodha/Executing Court whereby objection petition lodged by the appellant in the petition for execution of the judgment and decree dated 3.6.2010 was dismissed.

1. Brief facts leading to this appeal are that Ejaz Ahmad Respondent No. 1 lodged a suit for specific performance on 23.2.2010 on the basis of agreement to sell dated 6.4.2004 against Respondents No. 2 and 3 which was resisted by the respondents admitting the agreement to sell dated 6.4.2010, but contended that out of the agreed consideration amount of Rs. 58,00,000/- only an amount of Rs. 33,00,000/- was paid on the date of agreement to sell and balance payment of Rs. 25,00,000/- was not made up till 5.4.2007; that the agreement to sell dated 6.4.2004 stood automatically cancelled and the amount of Rs. 33,00,000/- was forfeited. The suit was decreed by the learned Civil Judge vide judgment and decree dated 3.6.2010. The Respondent No. 1 filed execution petition to get the decree dated 3.6.2010 implemented. With the process of the Court a sale-deed was also got registered in his favour and the respondent obtained possession of the suit land through warrants of possession dated 7.2.2011.

2. The appellant being aggrieved lodged objection petition on 9.2.2011 alleging that he has already filed a suit for specific performance, wherein his application for ad-interim injunction which was dismissed by the learned trial Court vide order dated 13.1.2006; that against the said order the appellant lodged F.A.O. No. 13/2006. This Court vide order dated 24.01.2006 admitted the F.A.O. for regular hearing, issued notice to the respondents and also passed an order on C.M. for interim relief as under:

"Subject to deposit of Rs. 25,00,000/- (Rupees twenty-five lac) by the petitioner within one week with the trial Court, alienation of the property in dispute by respondents is restrained. Status quo qua possession shall also be maintained. Copy Dasti."

In the objection petition the appellant further alleged that Respondent No. 2 and 3 with collusion of Respondent No. 1 during the pendency of the appellant's suit and in presence of injunctive order dated 24.1.2006 instituted a suit for specific performance on 23.2.2010 on the basis of forged agreement to sell dated 6.4.2004 and obtained impugned decree dated 3.6.2010; that the respondents secretly got prepared sale-deed and issued warrant for possession and during night of 7.2.2011 forcibly occupied the disputed property; that the impugned decree dated 3.6.2010 was collusive and obtained without notice to the appellant. The objection petition was resisted by the respondent/decree-holder contending that the appellant was neither in possession of the suit property nor he has any title therein that the alleged agreement to sell dated 23.9.2004 did not create any title in favour of the appellant in the suit property; that Respondents No. 2 and 3 had executed agreement to sell dated 6.4.2004 in his favour for Rs. 58,00,000/- and received Rs. 33,00,000/- as earnest money and under the decree he deposited Rs. 25,00,000/- which were drawn by Respondents No. 2 and 3 on 6.7.2010; that during execution proceedings the sale-deed was got attested mutation was recorded and possession of the suit land was obtained through process of the Court. Objection petition was dismissed by the learned trial Court through the impugned order dated 29.6.2011 in the following manner:--

"6. The decree dated 3.6.2010 obtained by Ejaz Ahmad has no where been challenged by the judgment debtors i.e. Muhammad Sadiq or Gul Nawaz. Rather this decree has become final and under the decree sale-deed and mutation stand attested and admittedly possession is also with the decree holder. By such, the decree has been implemented and the execution proceedings stand materialized. Now nothing is to be performed under the decree dated 3.6.2010.

1. Now the question is maintainability of objection petition. Admittedly, the decree holder, Ejaz is not a party to the sale agreement dated 23.9.2004, executed by Muhammad Sadiq and Gul Nawaz through attorney, Mazhar Ali in favour of the objector, Rai Muhammad Nawaz. The present decree holder is also not a party to the suit of specific performance of the said agreement instituted by Muhammad Riaz. Although, Muhammad Sadiq and Gul Nawaz were a party to the suit of objector and there was an injunctive order against them. But it is no where the stance of Muhammad Riaz that the defendants ever disclosed the pendency of his suit before the Court which decreed the suit of Ijaz Ahmad. If they concealed the facts of pendency of that suit, for that fault, the present decree holder cannot be penalized. The decree holder is not to suffer for the follies and wrongs committed by the judgment debtors. At the most, the objector can proceed against them in his own suit for alleged violation of injunctive order. Now on the basis of decree dated 3.6.2010, the present decree holder has also become a necessary party to the suit of objector and the objector may bring under attack the decree dated 3.6.2010 while impleading Ijaz Ahmad as party to his suit which is still pending adjudication.

2. For what has been discussed above, the execution petition mentioned at Serial No. 1 as having been materialized, is filed and objection petition mentioned at Serial No. 2 is rejected. File be consigned to the Record Room after its due completion."

3. It is argued by learned counsel for the appellant that the impugned order is passed by the learned trial Court on wrong premises of law and facts; that the learned trial miserably failed to appreciate that the decree was obtained during pendency of the suit of the appellant and it is hit by the doctrine of lis pendens and that the appellant has a right to protect his possession under Section 41 of the Transfer of Property Act, 1882; that the objection petition of the appellant has been rejected by the learned trial Court through the impugned order on flimsy grounds on the basis of surmises and conjectures without framing necessary issues and having recourse to evidence therefore the impugned order is liable to set aside.

4. On the other hand, it is resisted by the learned counsel for the respondents on the grounds that Respondent No. 1 was a necessary party in the suit for specific performance lodged by appellant; that agreement to sell dated 6.4.2004 executed by Respondents No. 3 and 4 in favour of Respondent No. 1 Ejaz Ahmad was prior in date as against agreement to sell dated 23.9.2004 alleged by the appellant; that the appellant never challenged the decree on the basis of fraud, misrepresentation under Section 12(2), CPC; that on the basis of the decree in his favour Respondent No. 1 has also got possession of the suit land through process of the Court; that the objection petition of the appellant was rightly dismissed by the learned trial Court through the impugned order dated 29.6.2011 which does not suffer from any illegality or jurisdictional error therefore the appellant has no case to invoke the jurisdiction of this Court under Order XLIII and XLI of the Code of Civil Procedure 1908.

5. Arguments heard. Record perused.

6. It is evident on the record that the Respondent Nos. 2 and 3 while filing written statement in the suit for specific performance lodged by the appellant had not disclosed any agreement to sell between the respondents. Bare reading of the contents of the objection petition transpires that the appellant categorically alleged that he was in possession of the suit land as part performance of agreement to sell dated 23.9.2004 and has alleged his dispossession through process of the Court without notice or granting an opportunity of hearing on the basis of a collusive decree. It is therefore obvious that the parties were at variance on the question of fact. In the attending circumstances it was incumbent upon the learned Executing Court to frame an issue to have recourse to evidence to resolve the factual controversy between the parties. Needless to say that an objection petition relating to execution of a decree could be decided only after framing of issues and recording of evidence. It is duty of the Court to ensure safe administration of justice keeping in view the substantial rights of the parties. At this juncture, it may be expedient to reproduce Section 47 of the Code of Civil Procedure, 1908, which reads below:--

"47. Question to be determined by the Court executing decree.--(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be, determined by the Court executing the decree and not by a separate suit.

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court fees.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall for the purposes of this section, be determined by the Court.

Explanation.--For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit."

Above provision requires that pleas of the parties are to be ascertained and adjudicated upon by framing of issues and recording of evidence to do substantial justice. Objection petition is akin to the suit and the Court executing the decree was saddled with the responsibility of framing the issues and recording evidence to resolve the question of possession between the parties. Certainly separate suit in this regard is specifically barred under Order XXI, Rules 100 and 103 of the Code of Civil Procedure 1908 and the question pertaining to the possession is to be decided by the Executing Court. Therefore objection petition lodged by the appellant raising the plea of possession was very much competent. Learned Executing Court was highly misconceived while holding that the objection petition was not maintainable for the reason that he was not a party to the suit. It is evident on the record that Ejaz Ahmad respondent filed the suit for specific performance and obtained the decree as well as possession during the pendency of the suit of the appellant without notice. Appellant's plea is that he was in possession of the suit land in part performance of agreement to sell dated 23.9.2004 therefore has right to protect the possession in terms of Section 41 of the Transfer of Property Act, 1882, could not be discarded summarily. Needless to say that Doctrine of lis pendens is alive to protect the appellant's rights. With the dismissal of the objection petition an order of final nature has been passed qua the appellant without providing a fair opportunity of hearing violative to the fundamental right of fair trial and due process protected under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Such a disposition of the matter leaving the appellant with no remedy and forum cannot sustain in the eye of law, therefore liable to set aside. Reliance is placed upon Riaz Hussain and others vs. Muhammad Akbar and others (2003 SCMR 181).

1. For the above reasons, this appeal is allowed and the impugned order dated 29.6.2011 passed by the learned Executing Court is set aside. The objection petition shall be deemed pending before the learned Executing Court for decision afresh in accordance with law after framing necessary issues and recording evidence of the parties.

(R.A.) Appeal allowed

PLJ 2014 Lahore 308 [Multan Bench Multan]

Present: M.Sohail Iqbal Bhatti, J.

FAQIR MUHAMMAD--Appellant

versus

MUHAMMAD ASHFAQ--Respondent

R.F.A. 58 of 2004, decided on 15.1.2014.

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

----O. XXXVII, R. 3(2)--Leave to defend--Imposition of condition--Suit for recovery on basis of promissory note--Application for leave to defend was accepted subject to furnishing surety in amount equivalent to the suit amount--Application for review of order that promissory note was a result of fraud--None compliance with the order--Validity--It is an established law that where allegation of fraud requiring inquiry is raised leave to defend the suit shall be granted unconditionally--There must be strong and cogent reasons given when a condition is imposed by trial Court while granting leave to defend the suit--Condition should not be imposed to non-suit the defendant. [P. 310] A

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

----O. XXXVII, R. 3--Leave to defend--Imposition of condition--Suit for recovery on basis of promissory note--Discretion of trial Court--Reasons must be recorded in justification of condition imposed by trial Court--Validity--In case of imposition of a condition in a suit filed on basis of promissory note, plausibility of defence is a determinative factor--Vast discretion has been given to trial Court to grant leave to defend the suit conditionally or unconditionally but such discretion has to be judicially exercised and not to shut out a plausible defence--Even, trial Court was not justified in passing a decree in a mechanical manner as paramount consideration in any system of administration of justice in islamic society is to do complete justice--Appeal was accepted. [P. 311] B & E

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

----O. XXXVII--R. 3--Scope of--Leave to defend--Non fulfillment of a condition--It is correct that the object and spirit of Order XXXVII, CPC is to provide mechanism for speedy, efficacious and summary remedy for recovery of money in respect of suits filed on basis of promissory notes but such mechanism for speedy and efficacious remedy does not mean that the defendant be thrown out of the Court merely on basis of non-fulfillment of a condition. [P. 311] C

Negotiable Instrument Act, 1881 (XXVI of 1881)--

----S. 118--Presumption of truth--Allegation of fraud and forgery of a negotiable instruments--Validity--It is true that presumption of truth is attached to a negotiable instrument; but when allegation of fraud or forgery of a negotiable instrument is pleaded, it makes a plausible defence--In cases of allegation of fraud the matter requires recording of evidence as the presumption of truth attached to a negotiable instrument under Section 118 of Negotiable Instrument Act, 1881 is always rebutable. [P. 311] D

Ch.Shakeel Akhtar Sindhu, Advocate for Appellant.

Ms.Samina Mahmood Rana, Advocate for Respondent.

Date of hearing: 15.1.2014

Judgment

This appeal is directed against the order and decree dated 25.3.2004 passed by learned Additional District Judge, Multan.

1. Brief facts giving rise to the filing of this appeal are that the respondent filed a suit for recovery of Rs. 25,00,000/- on the basis of promissory note dated 22.4.2002. The appellant appeared before the learned trial Court and filed an application for leave to defend the suit.

2. In his application for leave to defend the suit the appellant denied the very factum of receiving of any consideration in lieu of the promissory note and alleged that the promissory note dated 22.4.2002 has been obtained by fraud. The learned trial Court vide order dated 8.3.2004, upon agreement of parties, accepted the application for leave to defend the suit subject to furnishing surety in the amount equivalent to the suit amount. On 18.3.2004 the appellant filed an application for review of the order dated 8.3.2004 submitting that since it was alleged that promissory note dated 22.4.2002 was a result of fraud and without consideration, the condition for filing of surety may be dispensed with. The learned trial Court through its order dated 25.3.2004 dismissed the application filed by the appellant and forthwith passed the impugned decree.

3. The learned counsel for the appellant argued that imposition of a condition was harsh as the substantial question of law and facts had been raised which needed proper evidence and the defence set up was not illusory. On the other hand, the learned counsel for the respondent defended the impugned decree. It was argued that a condition had been imposed and the appellant failed to fulfill the said condition of furnishing of surety; none compliance with the order dated 8.3.2004 would have resulted into automatically passing of a decree.

4. I have heard the arguments advanced by learned counsel for the parties and perused the record.

5. It is an established law that where allegation of fraud requiring inquiry is raised leave to defend the suit shall be granted unconditionally. There must be strong and cogent reasons given when a condition is imposed by the trial Court while granting leave to defend the suit. The condition should not be imposed to non-suit the defendant. The wording of Order XXVII, Rule 3(2) of, CPC is as under:

"(2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit."

This wording shows that discretion has been given to the trial Court and this discretion should be exercised judicially and liberally keeping in view the facts of the case and not to non-suit the defendant who has a plausible defence. Had the defence been illusory and sham a condition may be imposed but not in cases where a plausible defence is made out which requires adducing of evidence.

1. Moreover, a condition should not be imposed in a mechanical manner and reasons must be recorded in justification of the condition imposed by the trial Court. In case of imposition of a condition in a suit filed on the basis of a promissory note, the plausibility of defence is a determinative factor. Vast discretion has been given to the trial Court to grant leave to defend the suit conditionally or unconditionally but such discretion has to be judicially exercised and not to shut out a plausible defence.

2. It is correct that the object and spirit of Order XXXVII, CPC is to provide mechanism for speedy, efficacious and summary remedy for recovery of money in respect of suits filed on the basis of promissory notes but this mechanism for speedy and efficacious remedy does not mean that the defendant be thrown out of the Court merely on the basis of non-fulfillment of a condition. It is true that presumption of truth is attached to a negotiable instrument; but when allegation of fraud or forgery of a negotiable instrument is pleaded, it makes a plausible defence. Especially, in cases of allegation of fraud the matter requires recording of evidence as the presumption of truth attached to a negotiable instrument under Section 118 of the Negotiable Instrument Act, 1881 is always rebutable.

3. This proposition may hardly be disputed that the paramount consideration for the Court must always be to do justice. The logic of words should always yield to the logic of realities, particularly where the interest of litigants are involved. Fortunately, we can look forward to a greater infusion and convergence to religion, law and morality in the Islamic Republic of Pakistan unlike the secular States. Even otherwise the trial Court was not justified in passing a decree in a mechanical manner as the paramount consideration in any system of administration of justice in Islamic society is to do complete justice.

4. For what has been discussed above, this appeal is accepted. Resultantly, the order dated 8.3.2004 and the decree dated 25.3.2004 are set aside. The appellant is granted an unconditional leave to defend the suit. The learned trial Court shall conclude the trial within the period of two months from the date of receipt of this order.

(R.A.) Appeal accepted

PLJ 2014 Lahore 312

Present: Mrs. Ayesha A.Malik, J.

NAZAR ELAHI--Petitioner

versus

GOVERNMENT OF PUNJAB, etc.--Respondents

W.P. No. 20018 of 2012, decided on 6.5.2013.

Constitution of Pakistan, 1973--

----Arts. 25(3) & 34--Punjab Women Empowerment Package, 2012, Preamble--Relaxation of age was offered to female candidates--Affirmative action on part of Government to protect right of women--Question--Whether age relaxation of three years provided for in proclamation for benefit of female candidates--No gender based discrimination--Challenge to--Constitution has given state a remedial power to protect women and children notwithstanding the fact that everyone is to be treated equally under the law--Art. 25 of Constitution guarantees equal protection to every citizen and also require that state undertake affirmative action for protection of women and children--Act of Government which aims to protect women and children will be an affirmative action which does not offend Art. 25(1) and equal treatment--Punjab Women Empowerment Package was introduced under Art. 25(3) of Constitution--Female candidates were given an age relaxation up to three years, for fresh induction, over and above normal age for purpose of encouraging employment in public sector and to enable women to join professional career after marriage and child bearing--Held: Age relaxation offered to female candidates does not violate Art. 27(1) of Constitution--In fact it promotes full participation of women in national life as contemplated under Art. 34 of Constitution which provides that steps shall be taken to ensure full participation of women in all parts of national life--No discrimination is made out against petitioner on account of fact and petitioner is not offered three year age relaxation which female candidates were given--Petition was dismissed. [Pp. 315 & 316] A, C, E & F

2012 YLR 1802 & 2011 YLR 2867, rel.

Constitution of Pakistan, 1973--

----Art. 27(1)--Age relaxation offered to female candidates--Discrimination in service--No citizen shall be discriminated on ground of race, religion, caste, sex or place of birth--Art. 27 of Constitution provides for safeguard against discrimination in service--State will not commit gender based discrimination--However Art. 27 does not prohibit affirmative action to protect female gender--Age relaxation offered to female under PWEP does not discriminate against petition but in fact is part of an affirmative action to protect women by creating opportunities for women professionally so that they can apply for jobs keeping in view time spent for responsibilities such as marriage and children. [P. 315] B

Punjab Women Empowerment Package 2012--

----Preamble--Intention of Punjab Women Empowerment Package is to give women an equal opportunities to apply for jobs given that a certain amount of their time may have been utilized for marriage and children bearing. [P. 316] D

Rana Muhammad Nawaz, Advocate for Petitioner.

Mr.Waqas Qadeer Dar, Astt. A.G. for Respondents.

Date of hearing: 18.4.2012.

Judgment

Through this petition the Petitioner has impugned the proclamation wherein a relaxation of age was offered to female candidates but the same relaxation of age was not offered to male candidates. The Petitioner claims that he is being discriminated against which is in contravention to Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution).

1. The basic facts are that through a proclamation in the newspaper applications were invited for the posts of Educators. As per Clause 3 of the proclamation the maximum age for a candidate is 35 years, inclusive of five years age relaxation. The Government of Punjab granted a further age relaxation upto three years to female candidates in terms of the Punjab Women Empowerment Package, 2012, meaning thereby that female candidates up to the age of 38 were eligible to apply for the post of Educator. The Petitioner moved an application to the Respondent No. 1 to request for an age relaxation of three years being similar to that which was being offered to female candidates. The Petitioner's request was not considered. The Petitioner made several requests to the Respondent No. 1 and ultimately filed the instant petition before this Court.

2. Written reply has been filed by the Respondents No. 2 and 3 as well as by the Respondent No. 1. In terms of the replies filed, it is stated that the Petitioner cannot be considered for age relaxation on account of the Recruitment Policy, 2011 wherein it is stated that the maximum age limit is 35 years of age across the board and no further age relaxation will be allowed. It is further explained that the age relaxation offered to female candidates is on account of the Punjab Women Empowerment Package, 2012 (PWEP), Hence in terms of the replies filed the age relaxation is offered only to female candidates under the PWEP.

3. The case of the Petitioner, as argued by the learned counsel is that every citizen is equal before the law and is entitled to equal protection of the law. Furthermore, in terms of Article 27 of the Constitution, no citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground of race, religion, cast, sex, residence or place of birth. Learned counsel argued that it is the fundamental right of the Petitioner to be given the same treatment as that of the female candidates and that there is no justification for giving only female candidates an age relaxation of three years. He argued that this act of the Respondents is discriminatory and offends Article 27(1) read with 25(1) of the Constitution.

4. Learned Law Officer argued that the Punjab Women Empowerment Package, 2012 was introduced in terms of Article 25 (3) of the Constitution. It represents a concerted effort on the part of the Provincial Government to acknowledge the mandate of Article 25 (3) read with Article 24 of the Constitution. The PWEP is protected under Article 25 (3) of the Constitution and represents an affirmative action on the part of the Government to protect the rights of women. He placed reliance on case titled Miss Rabia Khan and 3 others vs. Province of Sindh (2012 YLR 1802) and Syeda Sadia and 2 others vs. Baha-ud-Din Zakria University through Vice Chancellor and 3 others (2011 YLR 2867) in support of his contention that Article 25 (3) of the Constitution provided for affirmative action for the protection of women.

5. I have heard the learned counsels and have reviewed the record available on the file.

6. The point that needs consideration in this case is whether the age relaxation of three years provided for in the proclamation, for the benefit of female candidates violates Article 27 (1) of the Constitution. Article 27 of the Constitution reads as follows:--

"No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex residence or place of birth ....

Article 25 of the Constitution being the equal protection article reads as follows:--

"(1) All citizens are equal before law and are entitled to equal protection of law.

(2) There shall be no discrimination on the basis of sex.

(3) Nothing in this Article shall prevent the state from making any special provision for the protection of women and children.

1. It is clear from reading both the Articles that there shall be no gender based discrimination. Article 25 ensures equal treatment under the law however Article 25(3) provides that nothing in this article shall prohibit the State from making special provisions for the protection of women and children. This means that the Constitution has given the State a remedial power to protect women and children notwithstanding the fact that everyone is to be treated equally under the law. Article 25 of the Constitution guarantees equal protection to every citizen and also requires that the State undertake affirmative action for the protection of women and children. Therefore the Constitution has itself recognized and created a classification which needs special protection. Hence an act of the Government which aims to protect women and children will be an affirmative action which does not offend Article 25(1) and equal treatment. The next question is whether Article 27 is offended by the age relaxation offered to female candidates. Article 27(1) provides that no citizen shall be discriminated against in respect of any appointment he is otherwise qualified for only on the ground of race, religion, caste, sex or place of birth. Article 27 provides for a safeguard against discrimination in service. The safeguard ensures that the State will not commit gender based discrimination. However this Article does not prohibit affirmative action to protect the female gender. The age relaxation offered to females under PWEP does not discriminate against the Petitioner but in fact is part of an affirmative action to protect women by creating opportunities for women professionally so that they can apply for jobs keeping in view the time spent for responsibilities such as marriage and children. Affirmative action for women and children is the remedial power given to the Government to equalize opportunities by creating special dispensation or special standards for them so as to equalize their opportunities. A similar view was considered in 2012 YLR 1801 (Supra) where it was held that:

"Furthermore, the reliance placed on Article 25 of the Constitution is also misplaced. Clause (2) of this Article prohibits gender based discrimination, but clause (3) allows positive discrimination for the "protection" of women. Now fundamental rights serve as a check on State power, i.e., they prohibit the relevant organ of the State from doing what it otherwise could do (whether in the exercise of legislative or executive power). In other words, fundamental rights do not confer powers on the State; they derogate from its powers and draw a line which cannot be crossed".

1. The question which also needs to be answered is whether the action undertaken by the Government is permissible affirmative action to protect women. In the instant case the PWEP was introduced under Article 25(3) of the Constitution. As part of the PWEP female candidates were given an age relaxation up to three years, for fresh induction, over and above the normal age for the purposes of encouraging employment in the public sector and to enable women to join professional career after marriage and child bearing. In the instant case, as explained by the learned Law Officer and provided for in the PWEP the intention of the PWEP is to give women an equal opportunity to apply for jobs given that a certain amount of their time may have been utilized for marriage and child bearing.

The aim therefore is to provide women a level playing field so that they have equal representation and opportunities in the different activities of national life. To my mind the Government has a compelling reason for undertaking affirmative action by allowing age relaxation upto 38 years for female candidates. The decision to offer female candidates a three year age relaxation is taken to remedy an imbalance. And finally, even though it suggests different treatment the object is to promote gender equality.

1. I am of the opinion that the age relaxation for female candidates meets the standard of a permissible affirmative action, hence is protected under Article 25(3) of the Constitution. I am also of the opinion that the age relaxation offered to female candidates does not violate Article 27(1) of the Constitution. In fact it promotes the full participation of women in national life as contemplated under Article 34 of the Constitution, which provides that steps shall be taken to ensure full participation of women in all parts of National Life.

2. Therefore I find that no discrimination is made out against the petitioner on account of the fact that the Petition is not offered the three year age relaxation which female candidates are given. Petition dismissed.

(R.A.) Petition dismissed

PLJ 2104 Lahore 317 [Multan Bench Multan]

Present: Abdus Sattar Asghar, J.

MUHAMMAD AKRAM--Petitioner

versus

J.O.P., etc.--Respondents

W.P. No. 12698 of 2013, decided on 24.10.2013.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 22-A, 22-B & 154--Constitutional petition--Registration of case--Opinion of SHO--No cognizable offence--Ex-officio Justice of Peace--It is a settled principle of law of criminal procedure that SHO was not competent to enter into investigation before recording statement of complainant under S. 154 of Cr.P.C.--Allegations raised by respondent in his application under Section 22-A/22-B of Cr.P.C., opinion of SHO that no cognizable offence was made out is erroneous, unfounded and untenable--Such report of SHO being ipsi-dixit was not binding upon Ex-officio Justice of Peace--Ex-officio Justice of Peace has rightly directed the SHO to record the statement of respondent under Section 154, Cr.P.C. [P. 318] A & B

Ch.Sarfraz Ahmad Zia, Advocate for Petitioner.

Date of hearing: 24.10.2013.

Order

Petitioner has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic Islamic of Pakistan 1973 to impugn the order dated 14.10.2013 passed by learned Addl. Sessions Judge/Ex.officio Justice of Peace, Burewala, District Vehari.

1. Succinctly, facts leading to this petition are that Mazhar Hussain Respondent No. 3 lodged an application under Sections 22-A/22-B of the Code of Criminal Procedure 1898 for registration of case against petitioner and Respondents No. 4 to 7. Learned Ex-officio Justice of Peace after obtaining report from the SHO disposed of the application vide order dated 14.10.2013 in the following manner:--

"In the instant matter petitioner has levelled the allegation that on 9.9.2013 at about 10 a.m. Respondents No. 2 to 6 after consultation with each other entered into Ihata of the petitioner, demolished walls and were taking away guarders, T.R. and Toka machine but PWs restrained them. In the meanwhile petitioner also reached and restrained the respondents. It is further alleged respondents attempted to occupy the Ihata of petitioner and threatened him with dire consequences. In view of the above said circumstances, SHO P.S. Sadar Burewala is directed to attend grievance of the petitioner while keeping in view the spirit of Section 154 of, Cr.P.C. In the light of this direction, petition in hand stands disposed of accordingly. File be consigned to record room after its due completion."

1. It is argued by learned counsel for the petitioner that the impugned order is against law and facts, based on mis-reading and non-reading of the material available on the record and without considering the report of the SHO; that the impugned order being untenable is causing miscarriage to the justice and is liable to be set-aside.

2. Argument heard. Record perused.

3. Bare reading of the contents of the application under Sections 22-A/22-B of the Code of Criminal Procedure 1898, lodged by Mazhar Hussain Respondent No. 3, transpires that in Para No. 3 of the said petition, respondent has categorically alleged that on 09.09.2013 at 10.00 a.m. petitioner alongwith Respondents No. 4 to 7 in furtherance of their common intention entered into his residential Ihata, dismantled the walls and took away building material and that occurrence was witnesses by PWs Haider s/o Ismail and Mustafa s/o Saifal. Learned Ex-officio Justice of Peace obtained report from the SHO who instead of furnishing opinion as to whether Respondent No. 3 had lodged any such application at the police station before approaching the Ex-officio Justice of Peace, indulged himself in the investigation of the alleged occurrence by summoning both the parties at the police station and reported that theft of building material was not verified and that dispute between the parties was of civil nature and not cognizable by police as no cognizable offence was found to have been committed.

4. It is a settled principle of law of Criminal Procedure that the SHO was not competent to enter into investigation before recording statement of the complainant under Section 154 of the Code of Criminal Procedure 1898. Keeping in view the allegations raised by Respondent No. 3 in his application under Sections 22-A/22-B of the Code of Criminal Procedure 1898, the opinion of the SHO that no cognizable offence was made out is erroneous, unfounded and untenable. Needless to say that such report of the SHO being ipsi-dixit was not binding upon the Ex-officio Justice of Peace. Learned counsel for the petitioner after going through the contents of the application u/Ss. 22-A/22-B of the Code of Criminal Procedure 1898 has frankly admitted that the allegations raised therein make out a cognizable offence. In the attending circumstances, learned Ex.officio Justice of Peace has rightly directed the SHO to record the statement of Respondent No. 3 under Section 154 of the Code of Criminal Procedure 1898. I do not find any jurisdictional error, legal infirmity or irregularity in the impugned order passed by the learned Ex.officio Justice of Peace. The petitioner has no case to invoke the constitutional jurisdiction of this Court.

5. For the above reasons, this petition having no merit is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2014 Lahore 319 [Multan Bench Multan]

Present: Shoaib Saeed, J.

MUHAMMAD ARSHAD TEJA and 10 others--Petitioners

versus

CHAIRMAN TECHNICAL EDUCATION AND VOCATIONAL TRAINING AUTHORITY and 3 others--Respondents

W.P. No. 15063 of 2011, decided on 24.9.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Notification for considering B-Tech (Hons) degree equivalent to BE/B.Sc.--Determination of equivalency not only with regard to engineering qualification--Validity--B.Tech (Hons) and B.Sc. engineering though two distinct disciplines of knowledge in field of engineering and technology but could be considered parallel to each and at par for purpose of grades, pay, promotions and other benefits--Petitioners having B-Tech (Hons) degrees were entitled to benefit as provided in Notification dated 10.03.2010 with regard to compensation allowance from the date of enforcement of notification--Petitioners were also eligible for further grades, promotion, pay/increments as well as other job benefits and all allowances given to engineers holding B.E./B.Sc. degrees. [P. 321] A

Ch.Wadood Ahmad, Advocate for Petitioners.

Mr. MuhammadJaved Saeed Pirzada, A.A.G. for Respondents.

Date of hearing: 24.9.2013.

Order

Through this writ petition, petitioners have sought enforcement of Notification dated 10.03.2010, for considering their B-Tech (Hons) degree equivalent to B.E./B.Sc. Engineering and for further promotion and allowances given to Engineers holding B.E./B.Sc. degree.

1. Brief facts of the case are that the petitioners are posted as Instructors in Technical Education and Vocational Training Authority Government of Punjab and in such capacity performing duties at different colleges and technical institutions. All the petitioners are B-Tech(Hons) and have passed their examination of Bachelors Technology (Hons) from different Universities of Pakistan.

Government of Punjab through Letter No. TEVTA/ BUD/SPE.COMP/2010 626 dated 10.03.2010 announced special compensation allowance of Rs. 10,000/ per month for professional qualification holders and stated that the said allowances shall be admissible subject to the provisions and degree/certificate.

Petitioners applied to Respondent No. 1 for special compensation allowance, their applications/representations were turned down on the plea that the petitioners do not hold the criteria required for grant of special compensation allowances.

The Higher Education Commission has declared that B-Tech (Hons) is not similar to B.E/B.Sc. Engineering degree, both degrees be considered as two distinct disciplines of knowledge in the field of Engineering and Technology but could be considered parallel to each other, may be treated at par and compatible for the purpose of grades, pay, promotions and other benefits are concerned.

1. It was contended by the learned counsel for the petitioners that Higher Education Commission has declared B-Tech (Hons) degree equivalent to B.E/B.Sc. Engineering. Declaring equivalency not only in this case but also in other disciplines was the sole domain/prerogative of this body.

Pakistan Engineering Council regulates the affairs of Professional Engineers but it has no authority vested in it to give any Certificate of Equivalence to the professional degree holders.

That B-Tech (Hons) degree being equivalent to B.E/B.Sc. Engineering as such petitioners were entitled to receive compensation allowance of Rs. 10,000/- per month from the date of enforcement of Notification dated 10.03.2010. Being at par they were also eligible for appointments, grade of pay /increments as well as other job benefits eligible for B.E./B.Sc. Engineers.

1. On the contrary, learned A.A.G appearing on behalf of the respondents contended that Pakistan Engineering Council regulates the affairs of the professional engineers and is the sole authority to recognize graduate engineers. B-Tech (Hons) degree is not registered by Pakistan Engineering Council as, Graduate Engineer Degree. Petitioners being not at par with B.E./B.Sc. Engineering were not entitled to special compensation allowances and other benefits.

2. Arguments heard. Available record perused.

3. Higher Education Commission is the sole authority for determination of equivalency not only with regard to engineering qualification but in other disciplines as well. Pakistan Engineering Council only regulates affairs of Engineers. Higher Education Commission having sanctity of law has rightly held that B-Tech (Hons) and B.E/B.Sc. Engineering though two distinct disciplines of knowledge in the field of Engineering and Technology but could be considered parallel to each and at par for the purpose of grades, pay, promotions and other benefits. I, therefore, declare that the petitioners having B-Tech (Hons) degrees are entitled to the benefit as provided in Notification dated 10.03.2010 with regard to compensation allowance of Rs. 10,000/- per month from the date of enforcement of said Notification. The petitioners are also eligible for further grades, promotion, pay/increments as well as other job benefits and all allowances given to engineers holding B.E./B.Sc. degrees.

In view of the above, this writ petition is accepted.

(R.A.) Petition accepted

PLJ 2014 Lahore 321 [Multan Bench Multan]

Present: M.Sohail Iqbal Bhatti, J.

KHURRAM ALI SHAH etc.--Petitioners

versus

BAHADAR KHAN--Respondent

C.R. No. 66 of 2014, decided on 22.1.2014.

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

----O.XVI, R. 1--Summons for witness--Obligation to submit list of witnesses not later than seven days after settlement of issues--Name of witnesses was not mentioned in list of witnesses--Validity--It is a settled law that a party can get a private witness summoned through process of Court if it shows its inability to Court from producing such witness and it is duty of Court to procure attendance of such private witness by employing coercive measures in interest of justice but it is not case of petitioners; sought indulgence of trial Court for summoning of witnesses whose name had not been included in list of witnesses submitted by petitioners in terms of Order XVI Rule 1 of CPC. [P. 323] A

Syed Mumtaz Hussain Sherazi, Advocate for Petitioners.

Date of hearing: 22.1.2014.

Order

Through this Civil Revision the petitioners have prayed for setting aside the order dated 12.11.2013 passed by the learned Civil Judge, 1st Class, Rawalpindi.

1. Brief facts giving rise to the filing of the present Civil Revision are that the petitioners filed a suit for recovery of Rs.100,00,000/- as damages from the respondent and one Talat Shehzad. The respondent filed a contesting written statement and upon divergent pleadings of the parties, issues were framed on 15.9.2010. The petitioners adduced their oral evidence and after closing of oral evidence filed an application on 5.11.2013 for summoning of two witnesses, namely, Mohammad Akram, SI, and Mohammad Asghar, SI. The learned trial Court vide order dated 12.11.2013 dismissed the application for summoning of witnesses. The petitioners, at the first instance, assailed the order dated 12.11.2013 by filing a Revision Petition before the learned District Judge, Rawalpindi, which was dismissed as withdrawn vide order dated 19.12.2013 hence the instant Civil Revision before this Court.

2. The learned counsel for the petitioners submitted that the order dated 12.11.2013 of the learned trial Court is against law and has been passed without application of judicial mind. While relying on 2011 YLR 2393, 1988 CLC 2218, 2012 MLD 922 and 2005 MLD 688, learned counsel for the petitioners prayed that this Civil Revision may be accepted.

3. I have considered the arguments advanced by the learned counsel for the petitioners.

4. Order XVI Rule 1 of CPC provides that list of witnesses is to be submitted within seven days after settlement of issues. It is true that it has been laid down by this Court in numerous judgments that if the witness was present before the Court on the date fixed for evidence, the Court was under legal obligation to record his statement; party to the suit could produce a witness of its own notwithstanding the fact that the name of the said was not mentioned in the list of witnesses filed by the party; but sub-Rule (2) of Rule 1 of Order XVI CPC has placed a fetter on summoning of witnesses through the process of the Court if the name of those witnesses was not included in the list of witnesses submitted by the party.

5. In the present case, the application for summoning of witnesses was filed by the petitioners on 5.11.2013 and it had been rightly observed by the learned trial Court that the name of the witnesses was not mentioned in the list of witnesses submitted by the party after framing of issues. The judgments referred by the learned counsel are of no help as in all these judgments it has been settled that bar contained in Order XVI Rule 1 of CPC would be an absolute bar and would be operative where a party seeks production of witnesses through the process of the Court. Order XVI Rule 1 of CPC reads as under:

"Summons to attend to give evidence or produce document.--(1) Not later than seven days after the settlement of issues, the parties shall present in Court a [certificate of readiness to produce evidence, alongwith a]list of witnesses whom they propose to call either to give evidence or to produce documents."

1. The examination of Order XVI of CPC establishes that the party is under an obligation to submit the list of witnesses not later than seven days after the settlement of issues. Sub-Rule (2) of Rule 1 of Order XVI of CPC places a fetter upon the party to call a witness other than those contained in the list of witnesses submitted under Sub-Rule (1) of Rule 1 of Order XVI of CPC except with the permission of the Court and after showing good cause for the omission of including the said witness from the list of witnesses.

2. The judgments relied upon by the learned counsel for the petitioners do not support the case of the petitioners.

3. It is a settled law that a party can get a private witness summoned through the process of the Court if it shows its inability to the Court from producing such witness and it is the duty of the Court to procure the attendance of such private witness by employing coercive measures in the interest of justice but it is not the case of the petitioners; in fact, the petitioner sought the indulgence of the learned trial Court for summoning of the witnesses whose name has not been included in the list of witnesses submitted by the petitioners in terms of Order XVI Rule 1 of CPC. The learned trial Court has not committed any illegality while passing the impugned order.

4. For what has been discussed above, this Revision Petition having no merits is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2014 Lahore 324 [Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

MUKHTAR AHMAD--Petitioner

versus

I.G.PUNJAB POLICE, etc.--Respondents

W.P. No. 777 of 2014, decided on 4.2.2014.

Constitution ofPakistan, 1973--

----Art. 199--Constitutional petition--Selection of police officer for advance class course--Unlawfully restrained from joining course--No order in writing was passed regarding refusal to let petitioner joining training course--Action of prohibiting from joining was mala fide in law--Dealy of 17 days--Validity--Action of department to slam the doors of Police College, on petitioner was unwarranted, illegal and of no legal effect, calling for interference of High Court--Petitioner was illegally and unlawfully restrained from joining ADVCANCE CLASS COURSE by I.G. Police intervening period shall not be counted or set up against him while calculating his attendances at Police Training College. [P. 326] A & B

Rana Asif Saeed, Advocate for Petitioner.

Malik Muhammad Bashir Lakhesir, Assistant Advocate General with Abdul Rauf, DSP (Legal), Police College Sihala, Islamabad and Mr. Shehzad Ahmad, DSP (Legal) Regional Police Officer office, Multan for Respondents.

Date of hearing: 4.2.2014.

Order

Mukhtar Ahmad, the petitioner has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, maintaining that he was serving in the Punjab Police as an Inspector/SHO Police Station, Bahaud-ud-Din Zikaria, Multan. On 13.01.2014, Inspector General Punjab, Police, Lahore, Respondent No. 1 sent a fax message to Respondents Nos. 2 & 3 and two others, apprising them that the petitioner was selected for the ADVANCE CLASS COURSE and he was to undergo further training at Police College Sihala, Islamabad. It goes without saying that the petitioner was informed accordingly to brace himself for further training.

1. Since the petitioner was a subordinate to the Regional Police Officer, Multan, he was to be formally relieved by him. In actual fact, the petitioner stood relieved on 16.01.2014. He entered Rupt No. 43 in the Daily Diary on the very same day regarding his departure from Multan to Police College Sihala. On the very same day, viz., 16.01.2014, the petitioner claims to have undergone medical examination. The petitioner has annexed documents to the writ petition to substantiate his assertions.

2. On 23.01.2014, Respondents Nos. 1 & 2 were called upon to file report and parawise comments. The needful was done by them. It was claimed in the comments that the petitioner reported at Training College, Sihala some 17 days after the start of the classes. Today, learned counsel for the petitioner reiterated the above noted facts and argued that Commandant Police Training College, Sihala, Respondent No. 2 illegally and unlawfully restrained the petitioner from joining the ADVANCE CLASS COURSE. He pointed out that no order in writing was passed by Respondent No. 2 regarding his refusal to let the petitioner join the training course at Sihala. According to him, this by itself reflects adversely on the conduct of Respondent No. 2. In a nutshell, the stance of the petitioner is that the action of Respondent No. 2 prohibiting him from joining the Training College, Sihala is mala fide in law. Towards the end of his submissions, learned counsel for the petitioner stated that the petitioner had reported to Respondent No. 2 on the 17th January, 2014. In other words, it took the petitioner only four days to report himself at Police Training College, Sihala, after his being informed and given the go-ahead.

3. Malik Mohammad Bashir Lakhesir, Learned Assistant Advocate General not only confirmed the facts set out hereinabove, but also expressed his inability to defend the action of Respondent No. 2, Commandant Police Training College, Sihala. He was candid enough to concede that the comments furnished by Respondent No. 2 to the effect that the petitioner was late by 17 days appear to be the outcome of some misconception of the facts. He went on to concede that the petitioner did not waste any time in leaving Multan for Sihala, Islamabad.

4. After hearing learned counsel for the petitioner and the learned Law Officer, I am of the considered opinion that the posture adopted by the Commandant Police Training College, Sihala, Respondent No. 2 was perplexing and unreasonable, to say the least. It was lost sight of by him that he himself was informed by the Inspector General of Punjab Police, Lahore on the 13th January, 2014 that the petitioner and Qazi Abdul Basit were selected for ADVANCE CLASS COURSE. Needless to say, unless the petitioner was relieved formally by the Regional Police Officer, Multan, Respondent No. 3, he could not have left Multan for Islamabad. As stated above, it has not been denied by the respondent's side that Regional Police Officer, Multan relieved the petitioner on the 16th January, 2014 and the petitioner made a quick march to report to the Commandant Police Training College, Sihala, Respondent No. 2 on the 17th January, 2014. In other words, it did not take him more than four days, from start to finish. It bears repeating that he was required to undergo further training under the ADVANCE CLASS COURSE on 13.01.2014 and he was poised to do so at the first opportunity. Even if he was keen to join the course earlier, it was humanly impossible for him to have reported to Respondent No. 2 before the 17th January, 2014. Against this background, Respondent No. 2 was wide of the mark to come to the conclusion that the petitioner was late by 17 days. In any case, the action of Respondent No. 2 to slam the doors of Police College, Sihala on the petitioner is unwarranted, illegal and of no legal effect, calling for interference of this Court.

5. For what has been stated above, this writ petition is allowed. Respondent No. 2 shall not prevent the petitioner from joining the ADVANCE CLASS COURSE at Police Training College, Sihala, pursuant to the order dated 13.01.2014 passed by the Inspector General Police, Punjab, Lahore, who not only selected the petitioner for the aforementioned course, but ordered him to report at Police College, Sihala immediately after completing all usual formalities, including his medical examination from District Head Quarter, Multan.

6. Given that the petitioner was illegally and unlawfully restrained from joining the ADVCANCE CLASS COURSE by Respondent No. 2, the intervening period shall not be counted or set up against him while calculating his attendances at Police Training College, Sihala, Islamabad.

(R.A.) Petition allowed

PLJ 2014 Lahore 326 (DB) [Bahawalpur Bench Bahawalpur]

Present: MuhammadMasood Jahangir and Atir Mahmood, JJ.

BABAR BAKHATDPO BAHAWALPUR etc.--Appellants

versus

NAEEM AHMAD--Respondent

I.C.A. No. 62 of 2011/Bwp, heard on 29.1.2014.

Punjab Civil Servants (Appointments and Conditions of Services) Rules, 1974--

----R. 17-A--Appointment of brother of (deceased servant) on family claim basis--Entitlement of--Widow consented by submitting affidavit for appointment of brother of deceased employee--Question of--Whether brother of deceased employee can claim appointment with department on family claim basis--Under Rule-17-A of Rules, 1974 under which appointment is being sought by respondent, there is no room for appointment of brother of a deceased servant employee and such right has been given to only one of children of deceased or his widow and not anyone else--Children of deceased employee were yet minors and will become eligible after elapse of certain period and then, one of them can be appointed under said Rule by department--Even otherwise, widow has not surrendered right of her children in favour of brother of deceased though it seems immaterial. [P. 330] A

Mahr Muhammad Iqbal, Assistant Advocate General/Government Pleader with Rao Muhammad Qasim, DSP (Legal) for Appellants

Mr.Jamshaid Akhtar Khokhar, Advocate for Respondents.

Mr. Muhammad Ali, Advocate with Applicant (in C.M. No. 2763/2011).

Date of hearing: 29.1.2014.

Judgment

Atir Mahmood, J.--Through this Intra Court Appeal, the appellants have challenged impugned order dated 28.02.2011 passed by the learned Single Judge in Chamber whereby the appellants were directed to appoint the respondent in place of his deceased brother Muhammad Nadeem.

1. Brief facts of the case are that Writ Petition No. 5972/2010/Bwp was filed by one Naeem Ahmad Khan against Inspector General of Police and two others by submitting that he is the brother of one Muhammad Nadeem, who was working as plumber in police department and died during his service on 21.06.2005 due to electric shock at Police Rest House, Bahawalpur. It was asserted that he being the real brother of the deceased Muhammad Nadeem was entitled to be appointed against a post available with the police department in accordance with Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Services) Rules, 1974. It was stated that since the children of the deceased were minors and his widow has consented by submitting an affidavit for the appointment of the said writ petitioner in place of her deceased husband on the basis of Family Claim. The said writ petition was remitted to Respondent No. 3. i.e. District Police Officer, Bahawalpur vide order dated 07.12.2010 with a direction to look into the grievance of the petitioner with the following direction:-

"A copy of this writ petition alongwith its annexures be sent to the Respondent No. 3 who shall look into the matter of the petitioner strictly in accordance with law and also provide him an opportunity of personal hearing and thereafter shall take steps to redress the grievance of the petitioner if he is entitled for the said post under the policy of the Government. Disposed of."

Thereafter, a Crl. Org. No. 50/2011/Bwp was filed against the present appellants alleging that the present appellants did not comply with the order of this Court and the grievance of the petitioner was not redressed.

1. The written reply was called for from the appellants/ respondents, wherein it had been stated that the case of the respondent was considered but keeping in view the provisions of Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the respondent was not entitled to be employed on Family Claim Basis. However, the learned Single Judge in Chamber heard the criminal original and disposed of the same vide order 28.02.2011 which is reproduced for ready reference:-

"The main contention of learned counsel for the petitioner was that already the respondents have appointed one Muhammad Atta Ullah son of Hazoor Ahmad as Constable on Family Claim Basis, therefore, petitioner being the brother of the deceased is also entitled to be appointed in the Police department. On Court query, Malik Naveed, Office Superintendent has admitted that already the said person has been appointed as Constable on Family Claim basis. The case of the petitioner is at par with the said person who has already been appointed by the Department, therefore, the respondents are directed to appoint the petitioner in place of his deceased brother Muhammad Nadeem, under intimation to the Deputy Registrar (Judicial) of this Court. Disposed of."

Being aggrieved of order dated 28.02.2011, the appellants filed this I.C.A. by raising pleas that the Respondent Naeem Ahmad was not entitled to be appointed under Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Services), Rules, 1974 and accordingly the order passed by the learned Single Judge in Chamber was misdirected and void ab initio. It is contended that the learned Single Judge in Chamber was persuaded by a case of one Muhammad Atta Ullah, who was accommodated on Family Claim Basis by the brother of a deceased employee of the police department.

1. Learned Addl. A.G. contended that on the basis of a wrong order, no precedent can be created, as such, the impugned order is nullity in the eye of law. He has also raised an objection that while proceeding in the matter under Contempt of Court Ordinance, 2003, no direction could be passed against the department to implement an order which was never passed while deciding writ petition of the respondent.

2. During the course of this appeal, an application under Order I, Rule 10 CPC was filed by the widow of the deceased, Muhammad Nadeem (sister-in-law/Bhabi of the respondent), who seriously contested the claim of the respondent and submitted that by appointment of the respondent, the right of his minor son, who will be entitled for appointment in the police department after attaining the age of majority, will seriously be prejudiced. It is further contended that she had never sworn any affidavit in favour of the respondent.

3. When confronted with the above contentions of learned Assistant Advocate General, learned counsel for the respondent submitted that under the above-said rule, the respondent being the brother of the deceased was entitled for his appointment in the department in place of his deceased brother and as the case of Muhammad Atta Ullah was already in the field, therefore, the learned Single Judge in Chamber rightly passed the impugned order.

4. Arguments heard. Record perused.

5. We have considered the contentions of learned counsel for the parties. The Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service), Rules, 1974 is reproduced below for ready reference:-

"17-A. Notwithstanding anything contained in any rule to the contrary, whenever a civil servant dies while in service or is declared invalidated/in-capacitated for further service, anyone of his unemployed children, may be employed by the appointing authority against a post to be filled under Rules 16 & 17 for which he/she possesses the prescribed qualifications and experience and such child may be given 10 additional marks in the aggregate by the Public Commission or by the appropriate Selection Board or Committee, provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above:

Provided further that one child of a government employee who dies while in service or is declared invalidated/incapacitated for further service shall be provided a job against posts in BS-1 to 5 in the department in which the deceased Government servant was working, without observance or formalities prescribed under the rules/procedure provided such child is otherwise eligible for the post."

The perusal of the above-referred rule nowhere reveals that brother of deceased can claim the appointment with the department on Family Claim Basis. In this view of the matter, the impugned order is not sustainable on two grounds: firstly, that the respondent being brother of the deceased was not entitled to be employed with the government department on account of his Family Claim and secondly that while passing the impugned order in the criminal original petition directing the appellants to appoint the respondent the learned Single Judge did not take into consideration that original order dated 07.12.2010 passed in Writ Petition No. 5972/10 did not reflect that any direction was made for appointment of the respondent to the appellants/department and as such the impugned order was a nullity in the eye of law.

1. So far as the contention of learned counsel for the respondent that in some other case, on Atta Ullah was appointed against his deceased brother carries no force as a wrong cannot make a precedent because under Rule-17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 under which the appointment is being sought by the respondent, there is no room for appointment of brother of a deceased employee and such right has been given to only one of children of the deceased or his widow and not anyone else. The children of the deceased employee are yet minors and will become eligible after elapse of certain period and then, one of them can be appointed under the said Rule by the department. Even otherwise, the widow has not surrendered right of her children in favour of brother of the deceased though it seems immaterial.

2. Accordingly, this appeal is allowed, the impugned order dated 28.02.2011 passed by the learned Single Judge in Crl. Org. No. 50-W/2011/BWP is set-aside.

(R.A.) Appeal allowed

PLJ 2014 Lahore 330

Present: Mahmood Ahmad Bhatti, J.

ABDUL KHALIQ etc.--Petitioners

versus

MUHAMMAD SALEEM etc.--Respondents

C.R. No. 21 of 2014, decided on 28.1.2014.

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

----O.VI, R. 17--Application for amendment to written statement--Object of application to prolong agony of decree holders and drag on proceedings--Validity of same by preferring an appeal--Validity--There is no cavil at proposition that under Order VI, Rule 17, CPC an amendment to pleadings may be allowed at any stage of proceedings, but Court concerned would have to take into consideration all attending circumstances, including bona fides of applicant, who seeks to incorporate an amendment to plaint or written statement--Court concerned would not exercise its jurisdiction arbitrarily, but it does not mean that it would allow such applications having far reaching consequences and repercussions, in routine--Unless an applicant passes test of bona fides, his application for amendment to pleadings would always raise eyebrows, entailing its dismissal. [P. 333] A

Malik Haider Jamal Maitla, Advocate for Petitioners.

Ch.Jabbar Hussain Gujjar, Advocate for Respondents Nos. 1

to 4.

Date of hearing: 28.1.2014.

Order

This civil revision is directed against the order dated 11.12.2013 passed by a learned Additional District Judge, Mailsi, whereby he dismissed the petition of the petitioners, who sought to incorporate an amendment to the written statement filed by them.

1. The facts, in brief, are that Respondents Nos. 1 to 4 instituted a suit for declaration, challenging two Mutations Nos. 12 and 13 dated 3.12.1952 on the ground that the same were the outcome of fraud and misrepresentation. Their suit was decreed by the learned Civil Judge, Mailsi, District Vehari vide judgment and decree dated 26.6.2010. The present petitioners filed an appeal thereagainst, and during the pendancy of the appeal before an Additional District Judge, Mailsi, District Vehari, the petitioners herein made an application seeking to amend the written statement. As stated above, their application was turned down by the learned Appellate Court vide order dated 11.12.2013.

2. Learned counsel for the petitioners contends that amendment sought to be made by the petitioners/defendants was an innocuous one. In point of fact, only the word, “Rawaji” (customary) was to be added in Paragraph No. 4 of the written statement. He argues that the proposed amendment would neither change the nature of the suit nor the cause of action. According to him, valuable rights of the parties are at stake, and under Order VI, Rule 17 CPC, Courts are empowered to allow such an amendment. He concluded his submissions by stating that the learned Appellate Court exercised its jurisdiction illegally and with material irregularity by rejecting the application made by the petitioners. In support of his submissions, he places reliance on the judgments reported as "Jamil ur Rehman v. Anisur Rehman" (2009 MLD 1082) and "Abaid Ullah Malik v. Additional District Judge, Mianwali and others" (PLD 2013 SC 239).

3. The arguments advanced by the learned counsel for the petitioners were controverted by Ch. Jabbar Hussain Gujjar Advocate, learned counsel for Respondents Nos. 1 to 4, who are contesting this revision petition, and who are the decree-holders. He invited the attention of the Court to the testimony of Nazir Ahmad (DW-1), one of the petitioners herein, who deposed in the examination-in-chief that in their brotherhood, the girls would not inherit anything out of the legacy/bequest left by the deceased. Similarly he laid a great emphasis on Mutation No. 13, which was tendered in evidence as Exh.D-2 by the petitioners themselves to contend that it is altogether incorrect that the parties to the suit were governed by the Customary Law, and not the Muslim Shariat Application Act, 1937 and 1962. He went on to argue that this very question was considered by the learned trial Court. Page 5 of the judgment dated 26.6.2010 opens with the following lines:

"Whether the inheritance mutations were sanctioned correctly according to the custom or not?"

He emphatically added that the underlying purpose/object of seeking an amendment to the written statement is to prolong the agony of the decree-holders and drag on the proceedings indefinitely. He postulated that in the event of allowing the revision petition and permitting the petitioners to amend the written statement, the learned Appellate Court would be constrained to remit the matter back to the learned trial Court.

1. I have heard the learned counsel for the parties and have gone through the record appended to the revision petition, with their assistance.

2. From the resume of the facts set out hereinabove, it is patently obvious that the suit of Respondents Nos. 1 to 4 for declaration was decreed, and the petitioners herein have called into question the validity of the same by preferring an appeal against the same. At the moment, the appeal of the petitioners is pending adjudication before an Additional District Judge, Mailsi, District Vehari.

It transpires from the record that the suit for declaration was instituted in 2006, while the same was decided in 2010. The petitioners had all along been mindful of their defence, which is crystal clear from the deposition of Nazir Ahmad DW-2. It was asserted by them that they were governed by the Customary Law, not the Islamic Law, which guarantees a right of inheritance to woman. I am also struck by the fact that when the learned trial Court had made so many observations regarding this aspect of the case, why did the petitioners not awake from deep slumber? They instituted the appeal against the judgment and decree dated 26.6.2010 in 2010, but they came up with the application for amendment to the written statement in 2013, which speaks volumes for the mala fide intent of the petitioners/judgment- debtors. Learned counsel for the contesting respondents was not wide of the mark when he submitted that the sole object of the petitioners is to prolong agony of the decree- holders.

1. There is no cavil at the proposition that under Order VI, Rule 17 CPC an amendment to the pleadings may be allowed at any stage of the proceedings, but the Court concerned would have to take into consideration all the attending circumstances, including the bona fides of the applicant, who seeks to incorporate an amendment to the plaint or written statement. of course, the Court concerned would not exercise its jurisdiction arbitrarily, but it does not mean that it would allow such applications having far- reaching consequences and repercussions, in routine. Unless an applicant passes the test of bona fides, his application for amendment to the pleadings would always raise eyebrows, entailing its dismissal.

2. Since the appeal of the petitioners is pending decision before an Appellate Court below, I would refrain myself from dilating upon the submissions of the learned counsel for the parties on the merits of the case.

3. From what has been stated above, the impugned order dated 11.12.2013 is unexceptionable. Consequently, the revision petition instituted by the petitioners to impugn the validity of the order dated 11.12.2013 passed by a learned Additional Sessions Judge, Mailsi, District Vehari, dismissing their application for amendment to the written statement, is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 333

Present: Mahmood Ahmad Bhatti, J.

MEHVISH GILLANI, etc.--Petitioners

versus

JUDGE FAMILY COURT, etc.--Respondents

W.P. No. 15464 of 2013, decided on 16.1.2014.

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

----Ss. 5 & 12-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for recovery of dower and maintenance--Suit for declaration cancellation of documents and injunction--Injunctive order--Family Court was directed to decide suit pending before him within two months--Violative of specific direction issued by High Court--Determination--Suit for defendant, challenging entries recorded in Nikah Nama was dismissed--On appeal operation of suit so dismissed was suspended--Family Court, was in such a tearing hurry to stay suit of petitioner regarding dower that he did not wait even for a certified or unattested copy of order High Court, Islamabad--Entries in Niaka Nama are still intact, and have not been declared forged and fabricated to date by any competent Court of law--If Family Courts are allowed to abandon and abdicate their jurisdiction on ground that defendant has also instituted a civil suit regarding entries contained in Nikah Nama, it would provide a stick to defendant in every suit instituted by a lady, on basis of Nikah Nama, to beat her with it--Civil suit usually takes years and years together, while a family suit is a time-limit case in which proceedings are to be carried out on a fast track so as to be concluded within six months, as is mandated under Section 12-A of Family Courts Act, 1964--Therefore, under no circumstances can a family suit be allowed to be temporized or clubbed with a civil suit nor can same be made to be dependent upon outcome of civil suit. [Pp. 338 & 339] A, B, C, D, E & F

Constitution ofPakistan, 1973--

----Art. 199--It is self-evident and axiomatic that he is subject to supervisory jurisdiction of High Court, and his orders are amenable to judicial review by High Court under Art. 199 of Constitution--On 02.12.2013, he was asked not to be sidetracked so as to conclude proceedings within two months, but he has circumvented aforesaid order by adopting a sophisticated, albeit highly objectionable approach--He has also made a vain attempt to pit and confront one High Court with another High Court, and, that too, without any basis--If he is enjoying vicarious pleasure, it is high time that he was disabused of this notion. [P. 339] G

M/s. Muhammad Khalid Ashraf Khan and Muhammad Mehmood Ashraf Khan, Advocates for Petitioners.

M/s. Aziz Akbar Baig, Rana Miraj Khalid and Syed Javaid Akbar, Advocates for Respondent No. 2.

Date of hearing: 16.1.2014.

Order

This writ petition has been filed to impugn Paragraph No. 6 of the order dated 17.12.2013 passed by learned Judge Family Court, Multan, whereby he stayed the proceedings in the suit titled `Mehwish Gillani versus Aamir Nasim Sheikh' to the extent of the recovery of dower/Haq-ul-Mehr.

1. Succinctly put, the facts are that Mehwish Gillani, the petitioner and Muhammad Ahmad Aamir, her minor son instituted a suit for the recovery of dower and maintenance on 24.10.2012.

2. On 04.02.2013, Aamir Nasim Sheikh, the defendant/ respondent entered appearance, and his learned counsel took the plea that a stay has already been issued by learned Judge Family Court at Islamabad. To be exact, Aamir Nasim Sheikh had instituted a suit for declaration, cancellation of documents and injunction. He had not denied the solemnization of marriage, but had questioned the entries contained in Columns Nos. 13 & 14 of the `Nikah Nama' dated 02.06.2011. After some time, learned Judge Family Court at Islamabad declined to proceed with the suit on the ground that he lacked the jurisdiction. Ultimately, the plaint was presented to the Islamabad High Court, Islamabad which passed a sort of restraining order on 29.11.2013. Thereupon, learned Judge Family Court, Multan virtually adjourned the hearing of the suit sine die to the extent of the claim of Mehwish Gillani for the recovery of dower vide order dated 25.04.2013, making her rush to the Islamabad High Court to seek the clarification of the injunctive order passed by it. On 04.07.2013, it was observed by the Hon'ble Judge of the Islamabad High Court that:-

`Such an order has no concern with the proceedings going on before the learned Senior Civil Judge/learned Judge Family Court, Multan.'

At this stage, it is pertinent to mention here that civil suit `Mian Aamir Nasim Sheikh versus Mehwish Gillani etc.' was finally dismissed by the Islamabad High Court vide order dated 29.11.2013. Resultantly, Mian Aamir Nasim filed RFA No. 170/2013 before the Islamabad High Court, Islamabad. Meanwhile, both Mehwish Gillani and Respondent No. 2 instituted Writ Petition Nos. 8350/2013 and 9505/2013 before this Court, which were disposed of on 02.12.2013 by this Court. It was a consensual arrangement, which finds reflection in the aforesaid order dated 02.12.2013. In any case, the learned Judge Family Court was directed to decide the suit pending before him within two months, focusing on the main suit, without being distracted by the side winds.

1. On 07.12.2013, learned Senior Civil Judge/Judge Family Court, Multan passed a fresh order in the wake of the dismissal of the suit of Mian Aamir Nasim Sheikh pending adjudication before the Islamabad High Court, the relevant portion therefrom reads as under:-

`My learned predecessor vide order dated 25.04.2013 directed the defendant to submit written statement only to the extent of claim of the plaintiffs for recovery of maintenance allowance. Hence, the defendant is directed to submit written statement as a whole including the claim of Plaintiff No. 1 for recovery of "Haq-ul-Mehr". Since a direction has been issued by the Hon'ble Lahore High Court, Multan Bench Multan for disposal of the main case within a period of two months, hence, the defendant is directed to submit written statement.'

1. On 17.12.2013, learned Judge Family Court, Multan passed yet another order. In Paragraph No. 6, it was held by him as under:-

Vide judgment and decree dated 29.11.2013, the Hon'ble Islamabad High Court Islamabad was pleased to dismiss the suit titledMian Aamir Naseem vs. Mst. Mehwish Gillani and others'. As per certificate of learned counsel for the defendant, the order dated 29.11.2013 has been challenged before the Hon'ble Division Bench of Islamabad High Court and the Hon'ble Islamabad High Court was pleased to suspend the operation of impugned judgment and decree dated 29.11.2013. Obviously, an appeal is continuation of the suit. Since, the operation of impugned judgment and decree has been suspended and as such in my humble opinion, as observed by my learned predecessor in order dated 15.04.2013, conducting of further proceedings in respect of recovery of Haq-ul-Mehr' would be violation of the order dated 17.12.2012 of the Division Bench of Hon'ble Islamabad High Court. In these circumstances, the defendant cannot be required to submit written statement to the extent of recovery ofHaq-ul-Mehr. Written statement to the extent of recovery of maintenance allowance has already been submitted.'

1. As stated above, it is the aforesaid part of the order dated 17.12.2013 passed by learned Judge Family Court, which has been brought under challenge before this Court through the instant writ petition.

2. It is the contention of the learned counsel for the petitioner that the impugned order is violative of the specific direction issued by this Court vide order dated 02.12.2013, by which the learned Judge Family Court was required to focus his attention on the main suit so as to decide it within two months. He was at a loss to understand why the learned Judge Family Court continued to equivocate and attempted to make his orders conform to the orders and directions issued by the Islamabad High Court. He pointed out that to show deference to the order passed by another High Court is one thing, but to make obeisance to the same is quite another. In order to fortify his submissions, he drew the attention of the Court to the Articles 201 and 203 of the Constitution of Islamic Republic of Pakistan, 1973. He forcefully argued that even the order dated 17.12.2013 passed by a Division Bench of the Islamabad High Court would not make any impact upon the proceedings to be carried out by the learned Judge Family Court, Multan not did it prevent him from proceeding with the suit of the petitioner regarding the recovery of dower/Haq-ul-Mehr. To him, Paragraph No. 6 of the order dated 17.12.2013 passed by Respondent No. 1 is a classical example of the colourable exercise of jurisdiction.

3. Respondent No. 2 engaged three counsel, whose submissions were recorded in the Court as follows.

4. Mr. Javed Akbar, Advocate/learned counsel for the respondent contends that the very maintainability of the writ petition is open to question; that the order is not void ab initio; that no injustice has been done to the petitioner; that only the Islamabad High Court, Islamabad is vested with the authority to entertain a suit in respect of the entries contained in the Nikah Nama, and the jurisdiction of all Courts, including learned Judge Family Court, Multan is ousted; that since the petitioner has already submitted to the jurisdiction of the Islamabad High Court, she cannot turn round and question its jurisdiction afterwards. He adds that Mst. Mehwish Gilani did not assail the validity of the order dated 29.11.2013 passed by a learned Single Judge in Chambers, Islamabad High Court, Islamabad which goes to show that she has virtually acquiesced to the same. Learned counsel elaborates that there is no gainsaying that the learned Judge Family Court, Multan is not subordinate to the Islamabad High Court, but in due deference to the order dated 29.3.2013 passed by a learned Single Judge in Chambers, Islamabad High Court, he deferred/put on hold the suit of Mst. Mehwish Gilani vide order dated 15.4.2013. According to him, the aforesaid order passed by the learned Judge Family Court was in consonance with justice, equity and good conscience. Besides, it was intended to avoid the conflicting judgments to be passed by the two competent Courts of law. He concludes his submissions by stating that the learned Judge Family Court did not pass a fresh order, rather, the order dated 17.12.2013 is just a rehash of the earlier orders dated 15.4.2013 and 25.4.2013 passed by the Court. As such, the order dated 17.12.2013 may be regarded as a continuation of those orders.

5. Rana Miraj Khalid, Advocate/another learned counsel for the respondent contends that the petitioner did not challenge the orders dated 15.04.2013 and 25.04.2013, whereby the respondent was ordered to file reply only to the extent of maintenance of the minor. He implies that by acquiescing to those orders, the petitioner now stands estopped from reagitating the same matter. He further argues that the judgment/order dated 29.11.2013 passed by the Hon'ble single judge in chamber, Islamabad High Court, on the basis of which the learned Judge Family Court, Multan ordered Respondent No. 2/defendannt to submit written reply to the whole of the suit, has already been suspended in the RFA No. 170/13, with the result that the latter order now holds the field and the learned Judge Family Court has rightly passed the impugned order.".

6. Mirza Aziz Akbar Baig Advocate, learned counsel for Respondent No. 2 adds that the order dated 29.3.2013 passed by the Islamabad High Court was explained and clarified by it in the subsequent order dated 04.07.2013. The effect of the latter order was that the proceedings before the learned Judge Family Court Multan to the extent of Haq-ul-Mehr of Mst. Mehwish Gilani were stayed, while they were to continue to the extent of the recovery of the maintenance of the minor.

7. I have given patient hearing to the learned counsel for the parties, and have also gone through the record appended to the writ petition, with their assistance.

8. It is amazing how a seasoned Judicial Officer donning the mantle of learned Judge Family Court has so blithely abdicated his jurisdiction, working on the assumption that he has been stopped from exercising it by a learned Judge of the Islamabad High Court, Islamabad. In the first place, there was no basis whatsoever to entertain such a notion. He and he alone was to decide whether he had got jurisdiction in the matter or not. And for this to determine, he was to turn to Section 5 of W.P. Family Courts Act, 1964 as well as the Schedule thereto. Unless there is a final determination by a competent Court of law as to the genuineness or otherwise of the entries contained in the `Nikah Nama' the learned Judge Family Court Multan was to proceed apace in a suit for the recovery of Haq-ul-Mehr/dower. It was altogether overlooked by him that the solemnization of marriage between the Defendant/ Respondent No. 2 and the plaintiff/writ petitioner is not in dispute. It is also an admitted fact that she bore him a child by the name of Muhammad Ahmad Aamir.

9. It bears repeating that the petitioner and her son instituted the suit for recovery of maintenance and dower before the learned Judge Family Court, Multan on 24.10.2012. On the other hand, respondent/defendant instituted a suit for declaration before the learned Senior Civil Judge-I, Islamabad on 31.01.2013. The plaint in the latter suit was returned on 25.03.2013, whereafter the defendant instituted the said suit before the Islamabad High Court, Islamabad on 28.03.2013. I would refrain from dwelling upon the same lest it should prejudice the case of either of the parties. Be that as it may, the suit of the respondent/defendant challenging the entries recorded in the Nikah Nama was dismissed. And on the appeal operation of the suit so dismissed was suspended. This would lead to the only inescapable conclusion that the things are back to square one. I am at a loss to understand why the learned Judge Family Court, Multan was in such a tearing hurry to stay the suit of the petitioner regarding dower that he did not wait even for a certified or unattested copy of the order of the Islamabad High Court, Islamabad passed by it on 17.12.2012. How could he comprehend the implications, ramifications and overtones of an order, which was not before him? To put it simply, the entries in the Niaka Nama are still intact, and have not been declared forged and fabricated to date by any competent Court of law.

10. There is yet another aspect of the matter under consideration. If the Family Courts are allowed to abandon and abdicate their jurisdiction on the ground that the defendant has also instituted a civil suit regarding the entries contained in the Nikah Nama, it would provide a stick to the defendant in every suit instituted by a lady, on the basis of Nikah Nama, to beat her with it. The net result would be that all Family suits would be put in cold storage or put on hold indefinitely. The law of the land would never countenance such an absurdity. Furthermore, a civil suit usually takes years and years together, while a family suit is a time-limit case in which proceedings are to be carried out on a fast track so as to be concluded within six months, as is mandated under Section 12-A of the W.P. Family Courts Act, 1964. Therefore, under no circumstances can a family suit be allowed to be temporized or clubbed with a civil suit nor can the same be made to be dependent upon the outcome of the civil suit.

11. On the face of it, Paragraph No. 6 of the order dated 17.12.2013 passed by Respondent No. 1, Judge Family Court, Multan is the result of colorable exercise of jurisdiction. It is also a case of abdication of jurisdiction on his part. In order to streamline the proceedings pending before him, Paragraph No. 6 of the order dated 17.12.2013 is liable to be struck down and the same shall not be deemed to be forming part of the same, with the result that the suit instituted by the petitioner shall be tried as a whole and not in piecemeal.

12. Before parting with this order, I cannot help observing that the learned Judge Family Court, Multan should always bear in mind Articles 189, 201 and 203 of the Constitution of Islamic Republic of Pakistan, 1973. It is self-evident and axiomatic that he is subject to the supervisory jurisdiction of this Court, and his orders are amenable to judicial review by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. On 02.12.2013, he was asked not to be sidetracked so as to conclude the proceedings within two months, but he has circumvented the aforesaid order by adopting a sophisticated, albeit highly objectionable approach. In a way, he has attempted to run with the hare and hunt with the hounds. He has also made a vain attempt to pit and confront one High Court with another High Court, and, that too, without any basis. If he is enjoying vicarious pleasure, it is high time that he was disabused of this notion.

13. For what has been stated above, this writ petition is allowed. In order to avoid unpleasantness, the family suit titled `Mehwish Gillani and another vs. Aamir Nasim Sheikh' for the recovery of maintenance and dower pending adjudication in the Court of Senior Civil Judge/Judge Family Court, Multan is hereby withdrawn; and the learned District Judge, Multan shall entrust the same to another learned Judge Family Court, Multan who would conclude the proceedings before the 15th March, 2014, without fail and without being deflected and sidetracked by any miscellaneous applications already moved or to be made by any of the parties to the suit.

(R.A.) Petition allowed

PLJ 2014 Lahore 340

Present: Muhammad KhalidMehmood Khan, J.

Malik KHALID RIAZ--Petitioner

versus

ADMINISTRATOR and another--Respondents

W.P. No. 16219 of 2011, decided on 24.1.2014.

Muslim Family Law Ordinance, 1961--

----Ss. 6 & 7--Constitution of pakistan, 1973, Art. 199--Constitutional petition--Sought direction to issue certificate of talaq in terms of notice of talaq--Effectness of talaq when husband died after 6 days of issuance of notice of talaq--Ineffective of anti-dated notice of talaq--Right to revoke talaq remains with deceased husband upto 90 days--Validity--It is a settled principle of law that husband can withdraw notice of talaq before expiry of 90 days--Petitioner who is father of deceased has managed this notice of talaq only to usurp immovable property of deceased--Deceased has not divorced his wife and if presumed that he divorced his wife on 14.6.2011 even then before expiry of 90 days he died and petitioner is no one to say that divorce was finalized, it was deceased who may withdraw notice of Talaq before expiry of 90 days--In absence of deceased husband it cannot be said or presumed that deceased has divorced his wife and he has no intention to revoke notice of talaq specially when he has four minor daughters from respondent. [Pp. 343 & 344] A & C

Islamic Law--

----It is an admitted fact that both the parties are Muslim by faith and also citizens of Pakistan, their marriage was solemnized in Pakistan and as such they will be governed under the Pakistani law as well as Islamic law. [P. 344] B

M/s.Munir A. Malik, Advocate and Mr. M. Sikandar Hayat, Advocate for Petitioner.

Ch.Noor Muhammad Jaspal, Advocate for Respondent No. 2.

Ch. MuhammadIqbal, Additional General General, Punjab for other Respondents.

Date of hearing: 18.12.2012.

Judgment

Through this constitutional petition, the petitioner has prayed that Respondent No. 1 be directed to issue certificate of Talaq in terms of notice of Talaq dated 14.6.2011 issued by the son of the petitioner.

1. With the consent of the parties this case is decided as pacca case.

2. Briefly stated the facts of this case are that the petitioner's only son Malik Sajjad Khalid was married with Respondent No. 2. Out of the wedlock four daughters borne. Malik Sajjad Khalid died on 20.6.2011 due to Cardio Pulmonary arrest in Sheikh Zayed Hospital, Lahore. The petitioner asserts that Malik Sajjad Khalid died due to the attitude and bad behavior of Respondent No. 2, the bad behavior of Respondent No. 2 was reported to DPO Hafizabad on 18/19 June 2011. Before his death Malik Sajjad Khalid sent a notice of divorce to Respondent No. 2 through a registered post with a copy to Respondent No. 1. The petitioner thus submits that as the deceased has divorced his wife in his life time on 14.6.2011, hence after the expiry of 90 days from 14.6.2011 Talaq become effective between the deceased and Respondent No. 2. Respondent No. 1 thus is bound to issue a certificate of Talaq to petitioner.

3. Learned counsel for petitioner submits that the relations between the Respondent No. 2 and deceased were not cordial, they were leading their life in a severe tension. Respondent No. 2 earlier left the house of deceased alongwith four minor daughters and filed a suit for payment of maintenance allowance of herself as well as maintenance of four minor daughters. Malik Sajjad Khalid filed his written statement before his death and also issued a notice of Talaq to Respondent No. 2. The deceased Malik Sajjad Khalid divorced thrice to Respondent No. 2 and as such the moment notice was served upon Respondent No. 2 Talaq become effective and Respondent No. 2 is no more the widow of deceased. Under Section 6 of the Muslim Family Law Ordinance, 1961 Respondent No. 1 is duty bound to issue a certificate of Talaq as 90 days have expired. Learned counsel for petitioner has relied on Mst. Zarina Begum v. Major Aziz-ul-Haq and 3 others (2006 CLC 1525) and Allah Dad vs. Mukhtar and another (1992 SCMR 1273) and submits that notice of Talaq is not mandatory under the injunction of Islam and no divorce announced or written by the husband cannot be ineffective or invalid in Shariah only for the reason that notice has not been given to Chairman Union Council. He has also relied on Mst. Zohra Jan vs. The State, etc (2005 P.L.R 926) and Ahmad Nadeem vs. Chairman, Arbitration Council and others (1991 MLD 1198).

4. Learned counsel for Respondent No. 2 submits that the Talaq between the deceased and Respondent No. 2 was not finalized as after 6 days of issuance of notice of Talaq the husband of Respondent No. 2 died, after the death of husband of Respondent No. 2 and before expiry of 90 days the Talaq automatically become ineffective and Respondent No. 2 is the widow of deceased Malik Sajjad Khalid, Learned counsel submits that Respondent No. 2 was married on 19.4.1998 with deceased Malik Sajjad Malik according to Shariat-e-Muhammadi, the parents of Respondent No. 2 gifted 80 tollas gold ornaments to her daughter. The deceased sold that gold ornaments and purchased 6 acres of land, four daughters borne out of the wedlock who are studying in different classes. The differences arose between the husband and wife and Respondent No. 2 came to her parent’s house, Respondent No. 2 filed a suit for the payment of her maintenance allowance and maintenance allowance of four minor daughters. The deceased husband filed written statement in that suit and specifically stated that for the last several years his only need is the personal attention and medical care as he is suffering from hepatitis-B. Learned counsel further submits that it is the father of deceased who managed the divorce notice anti dated with the connivance of Respondent No. 1, further submits that right to revoke the Talaq remains with the deceased husband up to 90 days under Section 7 of Muslim Family Law Ordinance, 1961. Learned counsel for Respondent No. 2 has relied on Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others (1984 SCMR 583), Sardar and 3 others vs. Malik Khan alias Malla and 6 others (2003 YLR 2623), Mushtaq Ahmad and another vs. Mst. Sat Bharai and 5 others (1994 SCMR 1720) and Abbas Khan and 3 others vs. Mst. Sat Bherai and 2 others (1993 CLC 2181).

5. Heard. Record perused.

6. The only dispute between the parties requires resolution is whether Talaq between the deceased son of petitioner and Respondent No. 2 become effective or not? The deceased allegedly pronounced Talaq as per contents of notice of Talaq on 14.6.2011 and the notice of Talaq was sent to Respondent No. 2. No doubt the contents of notice provides that deceased mentioned or uttered the words but surprisingly the said notice was shown to be sent on 18th August. If the husband of Respondent No. 2 signed the Talaq Nama on 18th August, admittedly on 18th August he was not alive as admittedly he died on 20.6.2011 no doubt on notice date of 14.6.2011 is also mentioned but no explanation is available on record why the date of 18th August is mentioned on the notice, this alone fact is sufficient to establish that deceased has not sent the Notice of Talaq to Respondent No. 2. The wording used in the notice of Talaq is as under:-

1. The deceased has written in the notice of Talaq as under:-

1. But it is not established from the document that notice was sent to Chairman Union Council as well as Respondent No. 2 specially when the date of dictation of this notice is shown as 18 August, if it is written on 18 August then it is a proven fact without any other evidence that the Notice was written by a person other than the deceased as the deceased had died on 20.6.2011 but for the sake of arguments if we accept that the deceased husband of Respondent No. 2 has written notice of Talaq on 14.6.2011 and sent the same to Respondent No. 2 as well as Respondent No. 1, the Respondent No. 2's husband died on 20.6.2011, and 90 days in terms of Section 7 of Muslim Family Law Ordinance, 1961 were not expired. It is a settled principle of law that the husband can withdraw the notice of Talaq before expiry of 90 days. This issue was dilated upon by the Hon'ble Supreme Court of Pakistan in a case reported as Mushtaq Ahmad and another vs. Mst. Sat Bharai and 5 others (1994 SCMR 1720) and it was held as under:-

"From the facts narrated above it is clear that Gheba Khan died much before the expiry of 90 days. During this period, if he would have been alive, he would have had the option to revoke the divorce pronounced by him. There is a procedure provided under law under which reconciliation proceedings are initiated and it is only on expiry of 90 days of service of notice that the Talaq becomes effective. On the date Gheba Khan died, Talaq had not become effective in terms of Section 7 of the Ordinance. Therefore, the respondent continued to be his wife. In these circumstances, she was entitled to inherit the property of her husband."

1. It is an admitted fact that both the parties are Muslim by faith and also citizens of Pakistan, their marriage was solemnized in Pakistan and as such they will be governed under the Pakistani law as well as Islamic law.

2. There is another aspect of this case, the deceased in his written statement himself in reply to suit for maintenance allowance filed by Respondent No. 2 and 4 minor daughters has mentioned as under:-

"The contents of plaintiff on violence or beatings is incorrect as the Defendant himself is seriously ill. For the last several years the Defendant's only need was attention and medical care. Defendant has been suffering from Hepatitis "B". Such allegations are not only concocted but also extremely painful. Defendant had no ability nor the moral courage to commit any act of violence against the plaintiff No. 1 in a house which is also occupied by the defendant’s parents and minor girls and when the house of in-laws is also in the neighborhood."

1. In the entire written statement the deceased has not shown his intention that he intends to divorce his wife. Hence it is not understandable suddenly before 06 days of his death what forced him to divorce his wife. It seems that the petitioner who is the father of deceased has managed this notice of Talaq only to usurp the immovable property of the deceased. From the facts stated above it is thus clear that the deceased has not divorced his wife and if presumed that he divorced his wife on 14.6.2011 even then before expiry of 90 days he died and the petitioner is no one to say that the divorce was finalized, it was the deceased who may withdraw the notice of Talaq before expiry of 90 days. Hence, in the absence of the deceased husband it cannot be said or presumed that the deceased has divorced his wife and he has no intention to revoke the notice of Talaq specially when he has four minor daughters from Respondent No. 2.

2. In view of the above, it is established beyond any shadow of doubt on record that Respondent No. 2 is the widow of deceased Malik Sajjad Khalid. This petition thus is merit less and is dismissed accordingly.

(R.A.) Petition dismissed

PLJ 2014 Lahore 345

Present: Amin-ud-Din Khan, J.

ABDUL RAUF and another--Petitioners

versus

PROVINCE OF PUNJAB through Collector, Sheikhupura

and others--Respondents

C.R. No. 962 of 2013, decided on 16.1.2014.

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

----S. 115--West Punjab Muslim Personal Law (Shariat) Application Act, 1948, Scope--Civil revision--Concurrent findings--Ziminidar customs--Matter of inheritance--A party producing witness was bound by recitals--Propositus died before application of Act, 1948--Produced mutation did not show mother of plaintiffs as daughter or sister--In instant case it was duty of plaintiffs to prove that propositus died before application of West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) and further that family of propositus was governed by custom and under custom daughters of deceased were not entitled to inherit and grandsons of propositus in case of death of sons in lifetime of propositus were entitled--Even otherwise, it is admitted fact that rights were never formally acquired by grandsons after his death in suit property in accordance with alleged custom--No decree can be passed in favour of plaintiffs/petitioners--Jurisdiction u/S. 115 of CPC petitioners were required to show that findings recorded by Courts below were result of misreading and non-reading of evidence or some procedural defect fatal to case but no such misreading, non-reading or procedural defect had been highlighted--No case for interference by High Court while exercising jurisdiction under Section 115 of CPC has been made out, therefore, civil revision stands dismissed in limine. [P. 347] A, C, D & E

Specific Relief Act, 1877--

----S. 42--Suit for declaration a pre-existing right--Validity--A declaration can be sought with regard to any legal character or to any right as to the property--Suit for declaration a pre-existing right can be declared but a new right cannot be created. [P. 347] B

Syed Ghazanfar Hussain Kamran, Advocate for Petitioners.

Mr.Wali Muhammad Khan, AAG for Respondent.

Mr.Taki Ahmad Khan, Advocate for Respondent Nos. 2 to 7.

Date of hearing: 16.1.2014.

Order

Through this civil revision petitioners have challenged the judgment & decree dated 10.1.2013 passed by learned Additional District Judge, Sheikhupura whereby appeal filed by the petitioners was dismissed and the judgment & decree dated 9.3.2011 passed by learned Civil Judge 1st Class, Sheikhupura whereby suit for declaration filed by the plaintiffs-petitioners was dismissed.

1. Case of the plaintiffs-petitioners that Roshan Din son of Umar Din died in January 1948 and he was governed by "Zamindara custom" in matter of inheritance. He left Feroz Din a son, Fatima Bibi, Ruqiya Bibi and Nazir Begum three daughters whereas his two sons Chiragh Din and Siraj Din were predeceased. Askar Ali his grandson was alive who was Siraj Din's son and Akbar Ali was son of Chiragh Din, therefore, alive son Feroz Din was entitled to 1/3rd whereas Akbar Ali and Askar Ali were also entitled to 1/3rd each and daughters were not entitled to inherit the deceased. It is the case of the plaintiffs that mutation of Inheritance No. 35 was attested on 24.2.1952 without the knowledge of the predecessor of the plaintiffs and the plaintiffs, therefore, it is against the law and their predecessor was entitled to inherit the propositus Roshan Din and then they to inherit their predecessor. Suit was filed on 7.3.1996.

2. I have heard learned counsel for the petitioners at full length and with the permission of the Court learned counsel representing respondents as well as learned AAG also appeared at limine stage.

3. There are concurrent findings of fact recorded by the two Courts below. Courts below have noted and also gone through the statement of PW-1, who has stated in his examination in chief that Roshan Din died after the application of Shariat Law i.e. West Punjab Muslim Personal Law (Shariat) Application Act, (IX of 1948). A party producing a witness is bound by his recitals. Even otherwise, witnesses are also not specific to state in accordance with the pleadings of the plaintiffs. The very statement of Abdul Rauf, one of the plaintiffs, when he appeared as PW-3 stated that he has learnt from the elders that Roshan Din died after 4/5 months of the creation of Pakistan. Plaintiffs claim to be the son and daughter of Mairaj Bibi who is allegedly daughter of Chiragh Din and sister of Akbar Ali. Akbar Ali died in the year 1957 and their mother in the year 1981. Admittedly, neither the said Akbar Ali nor their mother agitated the matter in any way before any forum and they have not claimed their right in the suit property. The mutation has been produced as Exh.P.1, which does not show the mother of the plaintiffs as daughter of Chiragh Din or sister of Akbar Ali. In this case it was the duty of the plaintiffs to prove that the propositus i.e. Roshan Din died before the application of West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) i.e. before 15th of March, 1948 and further that the family of the propositus was governed by custom and under the custom the daughters of the deceased were not entitled to inherit and the grandsons of the propositus in case of death of the sons in the lifetime of the propositus were entitled. All these facts have not been proved by the plaintiffs, therefore, both the Courts below came to a right conclusion.

4. The plaintiffs have filed a suit for declaration and under section 42 of the Specific Relief Act, 1877, a declaration can be sought with regard to any legal character or to any right as to the property. Through a suit for declaration a pre-existing right can be declared but a new right cannot be created. Through this suit plaintiffs want that a new right be created in their favour which is not permissible under the law.

5. Even otherwise, it is admitted fact that rights were never formally acquired by the grandsons of Roshan Din after his death in the suit property in accordance with alleged custom, therefore while taking light from the celebrated judgment of august Supreme Court of Pakistan reported as PLD 2012 Supreme Court 501 titled "Ghulam Haider and others versus Murad through Legal Representatives and others", I am of the considered view that no decree can be passed in favour of plaintiffs/petitioners.

6. For invoking jurisdiction under Section 115 of the CPC the petitioners were required to show that the findings recorded by the two Courts below are result of misreading and non-reading of evidence or some procedural defect fatal to the case but no such misreading, non-reading or procedural defect has been highlighted nor I find the same in the findings recorded by the Courts below. In this view of the matter, no case for interference by this Court while exercising jurisdiction under Section 115 of the CPC has been made out, therefore, this civil revision stands dismissed in limine.

(R.A.) Revision dismissed

PLJ 2014 Lahore 348

[Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

MUHAMMAD HANIF--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, KABIRWALA, etc.--Respondents

W.P. No. 1984 of 2008, decided on 20.1.2014.

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

----Ss. 14 & 17-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for maintenance--Interim maintenance was fixed--Order was not challenged--Suit was decreed--Challenge the validity of judgment and order--If petitioner felt aggrieved by order, he could have challenged by filing an appeal before appellate Court--Suit for conjugal rights to date negates was not isntituted--Validity--Since petitioner did not challenge validity of order whereby he was ordered to pay a maintenance at rate of Rs.1,500/- per month he stands estopped to question correctness thereof in instant writ petition--Respondent was not entitled to maintenance on account of her living separately from petitioner--Family Court, rightly insisted upon implementing his order--Section 17-A of Family Courts Act, 1964 empowers him to strike off defence of a defendant, who fails to pay interim maintenance ordered by him and to decree suit of plaintiff right away, without recording evidence--No doubt, law as it stands is so designed as to confer discretionary powers on Family Court, but he has to exercise such discretion to decree or not to decree suit, keeping in view attending circumstances and conduct of defendant. [P. 351] A & B

Mr. MuhammadShamas-ul-Haq, Advocate for Petitioner.

Ch. MuhammadHussain, Advocate for Respondents Nos. 2 & 3.

Date of hearing: 20.1.2014.

Order

Muhammad Hanif, the petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 challenging the validity of the judgments and decrees dated 18.07.2005 and 18.03.2008 passed by learned Judge Family Court, Kabirwala and learned Additional District Judge, Kabirwala District Khanewal, respectively.

1. The facts, in brief, are that Mst. Tasleem Akhtar and Muhammad Anees, Respondents Nos. 2 & 3 instituted a suit for maintenance against the petitioner, contending that Respondent No. 2, Mst. Tasleem Akhtar was married to the petitioner/defendant on 13th September 1999, and a son, Muhammad Anees was born to them. However, she was turned out of the house by the petitioner some 26 months prior to the institution of the suit. It is pertinent to mention that the suit was filed on the 26th March 2005.

2. The petitioner entered appearance and denied the assertions of the plaintiffs, maintaining that Respondent No. 2 (Plaintiff No. 1) left his house of her own accord, and she stubbornly has refused to perform her marital obligations, with the result that she is not entitled to any maintenance.

3. Since the pre-trial reconciliation sought to be brought about by the learned Judge Family Court failed, he fixed interim maintenance of two plaintiffs at the rate of Rs.1,500/- a month in terms of Section 17-A of W.P. Family Courts Act, 1964. At the same time, following two issues were framed by learned Judge Family Court, Kabirwala on 18.06.2005:-

ISSUES:-

1. Whether the plaintiffs are entitled to a maintenance allowance, if so, at what period and at what rate? OPP.

2. Relief.

3. Following the framing of issues on 18.06.2005, the hearing of the suit was adjourned to 18.07.2005, when the following order was passed by the learned Judge Family Court, Kabirwala.

`On the last date of hearing, the defendant was directed to pay the interim maintenance allowance of Rs.1,500/- to the plaintiff but today he failed to pay the interim maintenance allowance. Hence, the right of defence of the defendant is hereby struck off and the suit of plaintiffs is hereby decreed in favour of the plaintiffs under Section 17-A Family Courts Act. No order as to costs.'

1. The petitioner/defendant did not challenge the order dated 18.06.2005 by which he was ordered to pay the maintenance to the plaintiffs at the rate of Rs.1,500/- a month, but he preferred to assail the validity of the order dated 18.07.2005, whereby his defence was struck off under Section 17-A of the W. P. Family Courts Act, 1964 and the suit of the plaintiffs/Respondents Nos. 2 & 3 was decreed.

2. The appeal instituted by the petitioner herein was dismissed by the learned Additional District Judge, Khanewal Camp at Kabirwala vide judgment and decree dated 18.03.2008 thereby upholding the judgment and decree dated 18.07.2005 passed by the learned Judge Family Court, Kabirwala.

3. It is the contention of the learned counsel for the petitioner that both the judgments and decrees are the outcome of misreading and non-reading of the provisions of law bearing on the outcome of the controversy in issue. He forcefully argues that since Respondent No. 2 has herself chosen not to spend her life with the petitioner, thereby denying to perform her marital obligations, she is not entitled to any maintenance under the Islamic law. He further submits that the learned Judge Family Court was not bound to decree the suit straightway. The law conferred discretion upon the Court to strike off the defence or to provide a further opportunity to the defendant so as to enable him to pay interim maintenance. He stress that the legislature used the word May `instead of shall, which makes the intention of the lawmakers manifest that it is not imperative and mandatory for the Court to strike off the defence and decree the suit forthwith'.

4. Learned counsel for Respondents Nos. 2 & 3 has opposed this petition, contending that the petitioner was provided ample time and opportunity to obey the order dated 18.06.2005, whereby he was required to pay interim maintenance at the rate of Rs.1,500/- a month to the two plaintiffs. According to him, in this day and age, when the prices of the commodities are rising rapidly, it was but a meager amount, and it could not by any stretch of imagination be regarded as a reasonable maintenance ordered to be paid by the petitioner. He points out that if the petitioner felt aggrieved by the order dated 18.06.2005, he could have challenged the same by filing an appeal before the learned District Judge Khanewal under Section 14 of the W.P. Family Courts Act, 1964. Even in the instant writ petition, he has not challenged the validity of the order dated 18.06.2005, with the result that the same has attained finality. Against this backdrop, it does not lie in the mouth of the petitioner to argue that Respondent No. 2, Mst. Tasleem Akhtar was not entitled to the maintenance on account of her living separately from the petitioner. He also underscores that the very fact that the petitioner has not instituted a suit for conjugal rights to date negates his assertions that it is Respondent No. 2 who is not willing to live with the petitioner. On the contrary, it is the petitioner who has deserted and left his wife and minor son, Muhammad Anees, Respondent No. 3 in the lurch.

5. I have heard the learned counsel for the parties at length and examined the record appended to the writ petition, with their assistance.

6. This petition is not maintainable for the sole reason that the learned Judge Family Court, Kabirwala, District Khanewal was not arrayed as one of the respondents, in spite of the fact that the petitioner felt aggrieved by his order dated 18.07.2005. It is pertinent to mention here that while learned Judge Family Court, Kabirwala was left out, the petitioner made learned Additional District Judge, Kabirwala a party to the writ petition. As for the merits of the case, it was rightly pointed out by the learned counsel for Respondents Nos. 2 & 3 that since the petitioner did not challenge the validity of the order dated 18.06.2005, whereby he was ordered to pay a maintenance at the rate of Rs.1,500/- a month to Respondents Nos. 2 & 3, he stands estopped to question the correctness thereof in the instant writ petition and to argue that Respondent No. 2 was not entitled to maintenance on account of her living separately from the petitioner. As regards the order dated 18.07.2005, it cannot be declared to have been passed without jurisdiction and lawful authority. The learned Judge Family Court, Kabirwala rightly insisted upon implementing his order dated 18.06.2005. Again, Section 17-A of W.P. Family Courts Act, 1964 empowers him to strike off the defence of a defendant, who fails to pay the interim maintenance ordered by him and to decree the suit of the plaintiff right away, without recording evidence. No doubt, the law as it stands is so designed as to confer the discretionary powers on the learned Judge Family Court, but he has to exercise this discretion to decree or not to decree the suit, keeping in view the attending circumstances and the conduct of the defendant. Since both the learned Courts below concurrently found that the petitioner was not entitled to any indulgence, the suit of the plaintiffs/Respondents Nos. 2 & 3 was rightly decreed, and no exception whatsoever can be taken to the judgments and decrees dated 18.07.2005 and 18.03.2008 passed by learned Judge Family Court, Kabirwala and learned Additional District Judge, Kabirwala, District Khanewal, respectively.

7. The upshot of the above discussion is that the petition being without merits, is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 351

Present: Shezada Mazhar, J.

Haji ABDUL RAZZAQ KHAN--Petitioner

versus

FEDERATION OFPAKISTAN, etc.--Respondents

W.P. No. 32554 of 2013, decided on 21.1.2014.

Constitution ofPakistan, 1973--

----Art. 199--Import Policy, 2013, S.R.O. 193(i)/2013--Constitutional petition--Letter of credit--Promulgated new Import Policy Order, 2013--Imports of truck not elder than 5 years was allowed--Vehicle was intercepted and seized--No authority or jurisdiction to intercept or seize duly imported vehicle--Exclusive agency agreement--Validity--Any amendment/change in letter of credit will be subject to Import Policy applicable at time of amendment/change in letter of credit--Although no document for change is placed on record by petitioner, however even if a change was made in letter of credit after issuance of Import Policy, 2013 same was illegal and against Import Policy, 2013--After change in import policy vide SRO 193(i)/2013 letter of credit cannot be amended by bank for import of vehicles which are older than 5 years as same will be in violation of Import Policy, 2013--Seizure made by respondent is in accordance with law and facts of instant case--Petition was dismissed. [P. 361] A, B & C

Mian Abdul Ghaffar, Advocate for Petitioner.

Ch. Muhammad Zafar Iqbal, Advocate for Respondents.

Mr. Zahid Saleem Mirza, Senior Intelligence Officer.

Mr. Muhammad Ilyas, Intelligence Officer.

Date of hearing: 21.1.2014.

Order

The present writ petition has been filed with the request to declare that the seizure by Respondent No. 6 of Hino Trucks imported by the petitioner on the basis of letter of credit dated 23.01.2013, which was cleared by Respondent No. 4 vide GD No. LDRY-HC-194 dated 21.09.2013 on payment of leviable duty and taxes, is illegal, void, arbitrary, malafide, without jurisdiction and of no legal effect. It is further prayed that Respondents No. 3 and 6 be directed to release the imported vehicle forthwith as Respondents No. 3 and 6 have no authority or jurisdiction to intercept or seize the duly imported vehicle.

1. The facts necessary for the adjudication of the controversy in hand is that the petitioner entered into a binding Exclusive Agency Agreement dated 09.01.2013 with one M/s Al-Waris Auto Spare Parts, TR L.L.C., Dubai (UAE) for import of 2000 units used Trucks/Sprinkler Lorries. The said agreement was duly registered with Meezan Bank on 14.01.2013, the supplier abroad issued Performa Invoice dated 11.01.2013 and in pursuance thereof an application dated 11-01-2013 for establishment of irrevocable documentary credit was filed with Meezan Bank and accordingly, as requested vide letter dated 18.01.2013, letter of credit was established on 23.01.2013 for the initial value of US $ 200,000/- against 110% cash margin. Later on agreement dated 09.01.2013 was amended vide addendum dated 26.01.2013 authorizing the petitioner to enhance the amount of L/C with additional amount of US $ 200,000/- in such manner that when the consignment of Trucks/Sprinkler Lorries for the initial amount of US $ 200,000/- was exported and the amount was exhausted, it would automatically replete with fresh transacted amount of US $ 200,000/- for further export consignments out of 2000 agreed number of Sprinkler Lorries.

2. On the basis of aforesaid agreement and letter of credit, the petitioner imported Trucks/Sprinkler Lorries which were being cleared by the custom authorities and till date more than 500 vehicles have been cleared by Respondent No. 4, which also included old and used Hino Truck/Sprinkler Lorry having Chassis No. FDIJKB-10494, Model 1997 which was imported vide commercial invoice dated 15.09.2013 and was cleared vide GD No. HDRY-HC-194 dated 21.09.2013 on payment of leviable duties and other charges. The aforesaid Hino Truck was intercepted by Respondent No. 6 on 09.12.2013 while it was being transported from Karachi to Rawalpindi and seized on the allegation that it was older than 5 years and imported in violation of the Import Policy Order 2013 where under such vehicles, older than 5 years, cannot be imported. The petitioner informed Respondent No. 6 that the aforesaid vehicle was imported on the basis of letter of credit dated 23.01.2013 which was protected vide Proviso to Para-4 of the Import Policy Order 2013 and that it was cleared and out of charged by Respondent No. 4 on payment of duty and taxes leviable thereon under the law. However, Respondent No. 6 did not agree to the contentions submitted by the petitioner and therefore, the vehicle was seized and the matter was referred for adjudication to Respondent No. 5, hence, the present writ petition.

3. Learned counsel for the petitioner submits that the import of Trucks/Spraying or Sprinkler Lorries falling under HS Code 8705.9000 was allowed without any age limit subject to certification by a recognized preshipment company listed at Appendix-H of the Import Policy Order to the effect that the said lorries,--

(a) complaint with Euro-II standard;

(b) in accordance with the original manufacturer specifications; and

(c) has a useful productive life vide clause (iv) of Serial-10 of Appendix-C to Paragraph-5 (A)(vii) of the Import Policy Order, 2009 issued vide SRO-766(I)2009 dated 04.09.2009.

Submits that Respondent No. 1 vide SRO 193(I)/2013 dated 08.03.2013, promulgated new Import Policy Order, 2013, where under the import of Trucks/Spraying Lorries or Sprinklers Lorries falling under HS code 8705.900 not older than 5 years is allowed subject to same conditions as mentioned in the earlier imported policy, however, vide Proviso to Para-4 of the Import Policy Order, 2013, it was mentioned that the said amendments shall not be applicable to such imports where Bill of Lading or letter of credit was issued or established before the issuance of amending SRO. Submits that the petitioner's Hino Trucks was imported under letter of credit dated 23.01.2013 and therefore, clearly falls under proviso to Para 4 and respondents had no authority to seize the vehicle. Further submits that under the law laid down by this Court in Messrs S.T. Enterprises through Proprietor vs. Federation of Pakistan through Secretary, (Revenue Division/FBR) Islamabad and 4 others (2009 PTD 467) under Section 32, the respondents cannot seize the vehicle. Further submits that in view of the law laid down in Messrs Zeb Traders through Proprietor vs. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others (2004 PTD 369), the Customs Authorities were not authorized to retain the goods, which were released on payment of duty and taxes. Further submits that the matter regarding Import Policy 2013 is pending before the Islamabad High Court, Islamabad in W.P.No. 3795/2013 wherein the Court has granted interim relief with regard to release of imported vehicles on payment of duty and taxes in terms of order dated 09.10.2013. Further submits that the release of the vehicle in question was made on the basis of order dated 26.07.2013 passed by Respondent No. 4. Submits that the vehicle in question was intercepted and seized without obtaining any order from the High Court which is also a violation of FBR letter dated 20.12.2013, therefore the action of the respondents is illegal which is liable to be set-aside under writ jurisdiction of this Court.

1. On the other hand, learned counsel for the Respondent No. 4/department entered appearance on last date of hearing i.e. 20.01.2014 and submitted that the matter be decided after going through the comments, which are to be consider as arguments on behalf of learned counsel for the Respondent No. 4. Perusal of report and parawise comments submitted by Respondent No. 4 reveals that Respondent No. 4 has claimed that the vehicle was released in compliance of Board's letter dated 01.01.2014 read with W.P.No. 3795/2013 filed by the petitioner in Islamabad High Court and sought a declaration that the action of MCC, Hyderabad be declared legal and just.

2. Learned counsel for the respondents 2, 3 and 6 have raised preliminary objection on maintainability of the present writ petition as the same has allegedly been filed by suppressing the actual facts. Submits that petitioner has violated the provisions of the Import Policy Order 2013 and Foreign Exchange Manual and have evaded huge amount of duty and taxes through gross mis-declaration and under invoicing in terms of description and value of the imported vehicle. Submits that the contract entered into exporter and the petitioner is not a valid contract in terms of Section 25 read with Section 29 of the Contract Act, 1872 i.e. an agreement made without consideration and uncertainty are void. Submits that in the agreement dated 09-01-2013 consideration of party A (exporter) is uncertain as there is no single clause stipulating the total value of the contract. Submits that Letter of Credit is a separate transaction and in no way is concerned with or bound by underlying contract, performer invoice etc. Hence, the entire claim of the petitioner to seek relief on the basis of an Exclusive Agency Agreement is untenable. Submits that the letter of credit is governed and regulated by the Foreign Exchange Manual of State Bank of Pakistan and under the said manual amendments in the amount of Letter of Credit is not justified. Submits that petitioner has not only violated the provisions of the Import Policy Order 2013 and Foreign Exchange Manual but has defrauded the exchequers by evading the huge amount of duty and taxes through gross mis-declaration and under invoicing in terms of description and value of the imported vehicle. Submits that writ petition is liable to be dismissed.

3. I have heard the arguments of the learned counsel for the parties and have also gone through the record available on the Court file.

4. Respondents/department have seized the vehicle on the ground that the same has been imported in violation of Section 3(1)3 of Import and Export Control Act, 1950 read with Import Policy Order, 2013 and Foreign Exchange Regulation Act, 1947 as well as the Customs Act, 1969, whereas the petitioner claims that the vehicle is imported under letter of Credit established on 23.01.2013 which is protected under proviso to clause 4 of the Import Policy Order, 2013.

5. In view of the above this Court is required to ascertain whether the seized vehicle cleared vide GD No. HDRY-HC 194 dated 21.09.2013 has been imported under validly established letter of Credit dated 23.01.2013 or not?

For this purpose I will first analyze the Exclusive Agency Agreement dated 09.01.2013 (Agreement). The said Agreement has been executed between the Petitioner and one Al-Waris Autos Spare Parts TR.L.LC of Dubai for the import of 2000 Sprinkle Lorries. Under the agreement the petitioner is defined as The Buyer and is Party B to the agreement. Under the agreement it is agreed between the parties that per month schedule of importation shall be chalked out by mutual agreement. Price and payment are mentioned in Clause 6 of the Agreement which states as under:-

Price and Payment:

The price for each individual transaction shall be fixed as per price schedule given below, through negotiations between Party B and the buyer, and subject to Party A's final confirmation. Payment shall be made by confirmed, irrevocable L/C opened by the buyer in favor of Party A, which shall reach Party A fifteen days before the ate of shipment.

1. The above clause shows that price between Party B i.e the petitioner and customers will be finalized only on approval of Party A (the exporter) and finalized price will be paid through letter of Credit open by the "buyer" in favour of Party A and which shall reach Party A fifteen days before the date of shipment. Clause 7 of the Agreement deals with the delivery of the vehicles which states as under:-

Delivery:

All the rights and title of ownership to the goods imported under this agreement will be transferred by Seller to Buyer by endorsing the Bill of Lading (B/L) in favour of said buyer. However, the Party B shall be entitled to delivery of gods when the full advance payment is received by the Party A, fifteen days prior to shipment. Party B shall not make any sale on basis of chasis numbers prior to actual shipment.

1. From the perusal of above two clauses it clearly shows that the seller and Buyer are two different persons. As in the clause 6 letter of credit was to be opened by the buyer and not by Buyer. Further, in clause 7 it is clear that Buyer can have the delivery if full payment is received in advance by the Party A. This opinion also finds support from clause 2 of the Agreement which states as under:-

Appointment:-

Party A hereby appoints Party B as its Exclusive Agent to import the commodity stipulated in Article 3 for customers in the territory stipulated in Article 4, and Party B accepts and assumes such appointment.

1. The above clause shows that importer is appointed agent for the “customers”. The combined reading of the above clauses i.e. clause 2, 6, and 7 of the Agreement reveals that the letter of credit will be opened by customer/buyer or the third party on agreed price and then Party A will send the vehicle to Party B. However, nothing of this sought is carried out between the parties to the Agreement. It is also relevant to mention here that under Clause 6A price of different model of vehicles were agreed between the parties to the Agreement. Under clause 6c (i) it was agreed that "the amount of twelve million US$ shall be remitted through L/C of above bank by Party B to Party A."

2. It is not clear from where this amount of twelve million US $ was reached between the parties to the Agreement as nowhere in the agreement number of each model was agreed between the parties to the Agreement. Further the performa invoice placed on record is dated 11.01.2013 i.e. after the execution of the Agreement.

3. On 26.01.2013 the parties to the Agreement entered into an amendment of the Agreement whereby a new clause 6C (ii)(a) was agreed whereby it was agreed that Party B (Petitioner) shall keep on enhancing the amount of Letter of Credit whereby availability of US$ 200,000/- for party A shall be ensured and thereby ensured uninterrupted export to Party B of agreed number of sprinkle lorries. Through the amendment it was also agreed that as bank has declined to be guarantor for import of whole agreed number of vehicles therefore petitioner agreed to deposit one million US$ as guarantee with the Party A.

4. Analysis of the above mentioned clauses of the Agreement read with amended agreement dated 29.01.2013 reveals that it contains self contradictory clause. On the one hand letter of credit in favour of Party A was to be opened by the buyer or customer with whom Party B (The Buyer) will negotiate the price. The delivery of all rights was to be transferred to the said buyer by endorsing the Bill of Lading in favour of said buyer. However, a right was given to the Party B (The Buyer) to have the delivery if full advance payment is already received by Party A. On the other hand under clause 6c read with clause 6C (ii)(a) petitioner (Party B) was required to establish letter of Credit the amount of which will be kept on increasing by US$ 200,000/-.

5. It is surprising to note that the letter of credit is for an amount of US$ 200,000/- whereas the performa Invoice on the basis of which the said letter of credit has been established is of US$ 1,200,000/-.

6. The matter does not end here under clause 6c (iv) Party B was bound to purchase 2000 Sprinkle Lorries irrespective of any restriction on import of Sprinkle Lorries in Pakistan. The clause states as under:-

Purchaser (Party B) shall be bound to purchase 2000 Sprinkle Lorries irrespective of any restriction on import of Sprinkle Lorries in Pakistan or change in Import Policy. This is in synchronization with proviso to Para 4 of Import Policy in vogue (as amended by SRO 1119/2011 dated 28.12.2011).

1. The above clause makes the whole agreement void under Section 23 of the Contract Act, 1872 which states as under:-

2. What considerations and objects are lawful and what not.--The consideration or object of an agreement is lawful, unless--it is forbidden by law; or

Is of such a nature that, if permitted, it would defeat the provisions of any law; or

Is fraudulent; or

Involves or implies injury to the person or property of another; or

The Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

1. The Government of Pakistan made an amendment in the Import Policy vide SRO No. 193(I)/2013 dated 08.03.2013 whereby it restricted the import of Spraying Lorries or Sprinklers not older than five years shall be allowed. On promulgation of said Import Policy, the Agreement becomes illegal and therefore any import of vehicle older then 5 years will be illegal.

2. The claim of the petitioner that the same has been imported under Letter of Credit which was established against registered Agreement is also of no help to the petitioner as the Agreement has been registered under clause 16 of Chapter XIII of the Foreign Exchange Manual which states as under:-

3. IMPORTS ON THE BASIS OF REGISTRATION OF CONTRACTS.

The undernoted procedure will be adopted for making imports of goods not subject to authorization from the Export Promotion Bureau/Ministry of Commerce as also not subject to minimum margin restrictions, if the importer wants to make the import on the basis of registration of contract without opening letter of credit:-

(i) The importer will submit a copy of the contract/purchase order/proforma invoice/indent etc to the Authorized Dealer for registration.

(ii) The Authorities Dealer registering the contract etc, will issue to the importer, a registration certificate in the format appearing at Appendix V-25.

(iii) In case the documents covering imports are received by the branch of the Authorised Dealer which had registered the contract/purchase order/proforma invoice, directly from the bankers of the suppliers abroad, the remittance may be effected in terms of the instructions laid down in Paragraph 23(i) of this chapter provided the documents conform to the terms of the relative contract/purchase order/indent or proforma invoice.

(iv) In case the shipping documents are received by the importers directly, or by the Authorised Dealer from the overseas supplier instead of the bankers of the suppliers, should be made in accordance with the instructions contained in Para 23(ii) of this chapter.

(v) In case of imports from ACU member countries, remittances will be effected through ACU Clearing Arrangements.

(vi) Forward cover will be available to the imports in accordance with the terms and conditions laid down in Chapter IV of this Manual.

(vii) Authorized Dealers will incorporate the figures of the contracts registered by them/remittances made there against in the statements as per appendices V-131, V-132 V-133 and V-134 (Para 15-Chapter XXII).

1. The reading of clause 16 reveals that the same is made when importer wants to make import without opening of Letter of Credit. Further the amount mentioned in the Agreement as well as in the Performa Invoice dated 11-01-2013 is US$ 1,200,000/- whereas in the Letter of Credit only US $ 200,000/- is mentioned. Under Para 7 to Chapter XIII Letter of Credits to be opened only against firm contracts which states:-

2. Letter of Credit to be opened only against Firm Contracts

Authorised Dealers should ensure before opening a letter of credit that in each case a firm commitment exists. For this purpose, they should ensure that an invoice, order or indent has been issued by an indentor duly registered as imported under Registration (Importers and Exporters) Order, 1993 and it bears registration number of the indentor concerned. It is also permissible to open a letter of credit on the basis of proforma invoice/order issued/accepted by the foreign supplier. Authorised Dealers should also ensure that while pending letters of credit, full description of the goods to be imported is given in each credit alongwith their prices. In all cases where the amount of the letter of credit is Rs.1,500,000/- or over, Authorised Dealers should obtain a confidential report on the exporter from their branches or correspondents aboard or in their discretion satisfy themselves as to the standing of the shipper by consulting standard books of reference issued by international credit agencies such as Seyds, Dunn and Bradstreet. Such reports should be obtained by the Authorised Dealers themselves and the reports if submitted by the importers should not be accepted. Even in the case of imports of the value of less than Rs.1,500,000/-, it is important that the Authorised Dealers satisfy themselves about the bona fides of the transactions before opening letters of credit.

1. Now I shall take up the matter whether under the Foreign Exchange Manual any amendment can be made in the letter of credit and if yes then on what basis and to what extent?

2. Petitioner has claimed that he is enhancing the amount of Letter of Credit dated 23-01-2013 under clause 6C (ii)(a) of the Agreement. However no such document is placed on record which show that the amount of Letter of Credit dated 23-01-2013 was enhanced from initial US$ 200,000/- to another amount of US$ 1200,000/-. Further clause 9 of Chapter XIII of the Foreign Exchange Manual is very relevant for the resolution of the present controversy which states:-

3. Opening of/Extension in Letters of Credit.--Time Frame/Change of Beneficiary and Commodity/other Amendments.

(i) Authorized Dealers can open letters of credit and extend their validity for a period allowed by the import policy announced by the Ministry of Commerce subject to compliance with all the conditions laid down therein.

(ii) If the import policy does not lay down any instruction in this regard, they may open letters of credit for a period upto 12 moths. However, in respect of machinery and mill-work which are required to be specifically manufactured and the period of manufacture is more than 12 months, the letter of credit may be opened for a period upto 24 months. The validity of a letter of credit may be extended by the Authorised Dealers for further periods not exceeding 12 months at a time on payment of fee, if so prescribed in the import policy, at a time on payment of fee, if so prescribed in the import policy, provided there has been no change in the Import Policy/exchange regulations in relation to the importability of the goods, the country of origin/shipment, and the method of payment/and if approached within its validity. An expired letter of credit may also be similarly revalidated subject of the same conditions.

(iii) Authorised Dealers are also allowed to amend the letters of credit envisaging change of he beneficiary/goods at the request of the importers provided the importers approached the Authorised Dealers for the change within the validity of the letter of credit and import of the goods covered by the letters of credit are still permissible.

(iv) Authorised Dealers should also ensure to make endorsement of L/C opened for items (other than freely importable items) whose import is subject to certain conditions, in the original Category Pass Book. In case an importer opens letters of credit with more than one bank, the Authorised Dealer holding the original category Pass Book will make out Photostat copies thereof, authenticate the same and furnish other concerned Authorised Dealers with it and will keep record thereof.

(v) Authorised Dealers may also make other amendments in the letters of credit without reference to the State Bank provided the amendments are not in conflict with the provisions of this Manual or the Import Trade Control Regulations.

(vi) Letters of credit may provide for negotiation of documents within a period not exceeding 30 days from the date of shipment.

1. From the above it is very clear that any amendment/change in the letter of credit will be subject to the Import Policy applicable at the time of amendment/change in the letter of credit. In the present case, although no document for change is placed on record by the petitioner, however even if a change was made in the letter of credit after the issuance of Import Policy, 2013 the same was illegal and against the Import Policy, 2013. Therefore an import made on the basis of said illegal amendment will be illegal and in violation of the applicable laws.

2. After change in the import policy vide SRO 193(i)/2013 dated 08-03-2013 the letter of credit cannot be amended by the bank for the import of vehicles which are older than 5 years as the same will be in violation of the Import Policy, 2013. Therefore for this reason no document with regard to the alleged enhancement of the Letter of Credit dated 23-01-2013 has been placed on record by the petitioner.

3. The case law relied upon by the learned counsel for the petitioner in support of his contentions is not applicable to the facts of the present case.

4. In view of what has been discussed above, it is held that the seizure made by the Respondent No. 6 is in accordance with law and facts of this case. The vehicle bearing Chassis No. FDIJKB-10494, Model 1997 cannot be declared to have been imported under Letter of Credit dated 23-01-2013, therefore, the writ petition is dismissed with no order as to costs.

5. Before parting with the judgment, it is observed that petitioner has got cleared 500 vehicles from Respondent No. 4 including the seized vehicle without any objection, I have gone through the order dated 26.07.2013 passed by the Respondent No. 4 wherein only issue with regard to valuation was considered. Respondent No. 4 as well as his staff at MCC Hyderabad were not only required to verify the value of the imported goods but also required to see whether the same are imported on the basis of valid documents including the Letter of Credit. The Letter of Credit placed before this Court and mentioned on the relevant GD clearly shows that the same is for US$ 200,000/- and opened against perform invoice dated 11-01-2013 which was for an amount of US $ 1,200,000/- On the basis of such letter of credit petitioner has got released 500 vehicles. In parawise comments Respondent No. 4 has mentioned that "the action of enhancing the amount of original LC has been declared illegal and without lawful authority by the Ministry of Commerce" however no where it is mentioned that such efforts were made by the Respondent No. 4 or its staff while clearing the vehicles under the letter of credit dated 23-01-2013. Further in reply to Para 9 of the writ petition Respondent No. 4 has stated `The vehicle was released in compliance of Board's letter dated 01-01-2014 (Annex-G) read with W.R.P No. 3795 filed by the said petitioner in Islamabad High Court and matter regarding importability as vehicles against the said LC is still pending in the Court of law despite clarification of the Board vide letter dated 20-12-2013'. Before this Court Respondent No. 4 is taking stance that the vehicle was released on the basis of writ filed by the petitioner and letter of FBR which were issued much after the clearance of the said vehicle. From the record it is clear that the vehicle was in fact released on 23-09-2013 whereas the writ was filed by the petitioner in Islamabad High Court on 05-10-2013 and the stay order was obtained on 09-10-2013 FBR letter is dated 01.01.2014.

6. The above mentioned facts needs proper investigation by Federal Board of Revenue so that real culprits be taken to task, therefore, copy of this judgment along with writ petition and the reply filed by Respondent No. 4 be sent to the Chairman Federal Board of Revenue, Islamabad who shall initiate proper investigation in this matter to identify the culprits and on conclusion of inquiry criminal cases should also be registered against the real culprits identified in the inquiry.

(R.A.) Petition dismissed

PLJ 2014Lahore 363 [Bahawalpur Bench Bahawalpur]

Present: Ch. MuhammadMasood Jahangir, J.

DIL MUHAMMAD BHATTI etc.--Petitioner

versus

MUHAMMAD RASHEED etc.--Respondents

C.R. No. 541 of 2009, heard on 13.1.2014.

Benami--

----Where a person buys property with his own money but in name of another person or buys property in his own name and subsequently transfers it in name of another without any intention, either in case to benefit such other person, transaction is called benami. [P. 367] A

Benami Transaction--

----Essential elements must exist for benami transaction between ostensible owner and the purchaser for purchase of property in the name of ostensible owner for the benefit of person who has to make payment of consideration and importantly existence of motive for creation of benami title is relevant--For purpose of determining whether title vesting is merely benami, absence of motive always goes against plaintiff. [P. 368] B

Arbitration Act, 1940 (X of 1940)--

----Ss. 14 & 17--Rule of Court--Award did not create any right or title regarding disputed plot--Un-registered award--It was not made a rule of Court and if it is presumed to be so even then no lawful award had been announced in favour of petitioners/plaintiff, which neither fulfill requirements of an award as same was not got registered nor petitioners/plaintiff had ever applied for making said award rule of Court u/Ss. 14 & 17 of Arbitration Act--Alleged award did not create any right or title regarding disputed plot in favour of petitioners/plaintiff and they cannot claim decree for declaration on basis of said award as award only becomes effective when it is made rule of Court and until passing of such decree by Court of law, award has no status in eyes of law--Un-registered award even if received in evidence will not operate to create, declare, assign, limit or extinguish, which in present or future, any right or interest whether vested or contingent to or in immoveable property. [P. 369] D & E

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

----S. 115--Civil revision--Concurrent findings--Damages was awarded for breach of contract--Benami transaction--Bona fide purchaser without notice--Contradictory pleas about ownership of disputed property--No motive for executing a benami transaction--Validity--Respondent/defendant was a benamidar owner could not be proved during trial Court by producing convincing and cogent evidence--High Court was not inclined to interfere with well reasoned judgments and decrees passed by Courts below in exercise of revisional jurisdiction conferred upon High Court by Section 115 CPC, scope whereof is narrower and it can be exercised only if judgments or orders under challenge are found to be fanciful, perverse and illegal or those were passed without jurisdiction, which is not case in hand--Revision being devoid of any merit was dismissed. [P. 369] C & F

Mr. MuhammadAslam Khan Dhukkur, Advocate for Petitioners.

Mr. MuhammadBilal Bhatti, Advocate for Repsondent No. 2.

Ch. MuhammadTahir Saeed Ramay, A.A.G. with Abdul Majeed, Housing Management Officer.

Date of hearing: 13.1.2014.

Judgment

The facts of the case as narrated in the plaint are that Muhammad Amin plaintiff (predecessor of the present petitioners) and Muhammad Rasheed are real brothers, that Respondent No. 1/Defendant No. 1 had been living with the plaintiff, who also arranged his marriage and in the year of 1984 Respondent No. 1/Defendant No. 1 had sent his four children from Lahore to live with the plaintiff for getting education whereas he himself stayed with his others kids and wife in his house at Lahore, that Housing and Physical Department Bahawalpur had advertised for auction of plots for shops and the plaintiff/petitioner purchased Shop No. 9-C in his name and got recorded the name of his brother Respondent No. 1-Defendant No. 1 as vendee of plot No. 8/C as benamidar and the petitioner/plaintiff himself deposited the amount of the said plot before the concerned department. It is further pleaded in the plaint that the plaintiff/petitioner had deposited the installments of balance auction money before the Housing and Physical Department Bahawalpur, that the plaintiff is exclusive owner of the disputed plot, that thereafter disputes arose between the plaintiff and Defendant No. 1 and ultimately the parties agreed for settlement of their disputes through the six Arbitrators, who made the Award in writing on 16.11.1985, that in the light of said Award dated 16.11.1985 the petitioner/plaintiff agreed to sell the disputed plot to Dr. Muhammad Tariq and received the earnest money from the said purchaser, that Respondent No. 1-Defendant No. 1 also acknowledged the said agreement by receiving part payment through receipt, that in pursuance to the said agreement Respondent No. 1-defendant got recorded his statement for transfer of disputed plot in favour of Dr. Muhammad Tariq, but the departmental authorities did not act upon the same as the purchaser was not present in person and the attorney was not possessing any power of attorney executed by Dr. Muhammad Tariq in his favour, that thereafter Respondent No. 1- Defendant No. 1 backed out from the Award and in fact transferred the suit property in favour of Defendant No. 2, which necessitated of filing the suit for declaration before the learned trial Court.

1. The suit was resisted by said Muhammad Khalil Respondent No. 2/Defendant No. 2 with the assertion that he was a bona fide purchaser for value and without notice. He further pleaded in the written statement that Respondent No. 1/Defendant No. 1 was the actual owner of the disputed plot and that the petitioner/plaintiff has failed to allege any reason and motive in the plaint regarding benami transaction in favour of Respondent-Defendant No. 1. He further submitted that contradictory pleas have been raised by the petitioner/ plaintiff and that Respondent No. 1/Defendant No. 1 remained in possession of the disputed plot since after its purchase. The defendants/ Respondent No. 3 to 6 who are functionaries of government department also contested the suit by filing their separate written statements with the assertion that the disputed plot had been purchased by the Respondent No. 1 in open auction and thereafter he transferred the same to defendant/Respondent No. 2. However, defendants-Respondents No. 1, 7 & 8 were proceeded ex-parte.

2. Factual area of dispute is reflected in the issues framed by the learned trial Court after the remand of the case by the learned Additional District Judge, which are reproduced hereunder:-

3. Whether the Defendant No. 1 was benamidar of the suit property and the Plot No. 9/C was in fact purchased by the plaintiff? OPP

4. If Issue No. 1 is proved in affirmative, whether the plaintiff is owner in possession of the suit plot? OPP

5. Whether the arbitration between the parties took place and for the violation of the terms arbitrated by Defendant No. 2, the plaintiff has become full owner of the suit property? OPP

6. Whether the plaintiff is entitled to the decree for specific performance of the agreement arbitrated and alternative. If so on what terms and conditions? OPP

7. Whether the alienation of the property by Defendant No. 1 in favour of Defendant No. 2 is illegal, collusive, void and thus inoperative? OPP

8. Whether the Defendant No. 2 Khalil Ahmad is a bona fide purchaser of the suit property without notice and for the consideration paid? OPD

9. Whether the plaintiff’s suit is not maintainable in view of preliminary objections No. 2 and 3 raised by Defendant No. 2 in his written statement? OPD

10. Whether the plaintiff’s suit is incompetent for the inconsistent pleas pleaded by the plaintiff in his plaint. If so, with what effect? OPD

11. Relief.

12. The plaintiff appeared himself as PW9 and also got examined Fateh Muhammad (PW1), Abdul Rashid Khan, Stamp Vendor (PW2), Ghulam Sabir, Senior Clerk Housing & Physical Department (PW-3), Abdul Salam Chughtai, Stamp Vendor as (PW4), Muhammad Mohsin Stamp Vendor (PW5), Amir Ali (PW6), Haji Faqir Muhammad (PW7), Akhtar Hussain Stamp Vendor (PW8) and Hafiz Abid Hassan Jamal the other Stamp Vendor (PW10). Besides the said oral evidence the plaintiff also produced the documentary evidence in the shape of Exh.P.1 to P13. In rebuttal the respondent/Defendant No. 2 Muhammad Khalil himself appeared as DW1 and also produced Allah Wasaya (DW2) in his oral evidence. He tendered documentary evidence in the shape of Exh.D1 to D9.

13. After appreciating the evidence available on file the learned trial Court vide judgment and decree dated 14.11.2000 dismissed the suit of the petitioner/plaintiff to the extent of defendants/Respondents No. 2 to 5 whereas the suit of the plaintiff/petitioners was decreed against the defendant/Respondent No. 1 by declaring the plaintiff/petitioners entitled for the return of 5 marlas plot in Mouza Mannawan, Lahore besides a sum of Rs.15,200/-regarding cheque received by Defendant No. 1 and Rs.55,000/-as observed while answering Issue No. 3. The plaintiff was also awarded damages of Rs.50,000/-agaisnt Defendant No. 1 for breach of contract. Feeling dissatisfied the petitioner-plaintiff filed an appeal before the learned lower appellate Court which met with the same fate vide judgment and decree dated 31.7.2008 passed by the learned Additional District Judge Bahawalpur. Hence the instant civil revision has been filed by the successors of Muhammad Amin plaintiff, who died during the pendency of the appeal.

14. The learned counsel for the petitioners has argued that the impugned judgments and decrees are reflective of misreading and non-reading of evidence; that the judgments and decrees are self contradictory as on the one hand the plaintiff has been awarded a decree of Rs.70,200/-in addition to transfer of plot of measuring 5 marlas from Muhammad Rasheed Respondent-Defendant No. 1, but on the other hand both the Courts below have dismissed the suit regarding the disputed plot/shop, which are liable to be set aside by allowing the instant civil revision.

15. Conversely the learned counsel for the respondent/Defendant No. 2 has supported the impugned judgments and decrees while arguing that the respondent/Defendant No. 1 had purchased the disputed plot in an open auction and thereafter the same was transferred by him to Defendant No. 2, which fact has been fully supported by the functionaries of the relevant department; that Defendant-Respondent No. 2 is a bona fide purchaser without notice and that the suit filed by the petitioner is collusive to usurp the plot in dispute from him, and that that the suit filed by the plaintiff/petitioners being based on contradictory pleas about the ownership of the disputed plot/shop has rightly been dismissed to the said extent after appreciating the evidence available on the record in a proper manner and the concurrent findings arrived at by the learned Courts below are not open to any interference in the revisional jurisdiction.

16. Arguments heard record perused.

17. In various authoritative judgments rendered by the superior Courts (BENAMI) is defined as that where a person buys property with his own money but in the name of another person or buys property in his own name and subsequently transfers it in the name of another without any intention, either in case to benefit such other person, the transaction is called Benami. Literally Benami means without name, viz; a transaction effected by a person without using his own name. The factors to be taken into consideration are:--

(i) Source of Consideration.

(ii) From whose custody original title deed came.

(iii) Who is in possession of the property, and

(iv) Motive of benami.

The essential elements must exist for benami transaction between ostensible owner and the purchaser for purchase of property in the name of ostensible owner for the benefit of person who has to make payment of consideration and importantly existence of motive for creation of benami title is relevant. For purpose of determining whether title vesting is merely benami, absence of motive always goes against plaintiff. As per claim in the suit, Muhammad Amin plaintiff was the actual owner of the disputed plot/shop while his brother Muhammad Rasheed Defendant-Respondent No. 1 was only a benamidar and the heavy onus laid on the shoulder of the plaintiff to prove that actually he had purchased the disputed plot from the Housing and Physical Department after making full payment to the said department, but for some certain reason-motive he got transferred the disputed plot in the name of his brother/Defendant No. 1 and he was in continuous physical possession thereof along with the original title documents.

1. To prove the elements of benami transaction the plaintiff produced Ghulam Sabir Senior Clerk, Housing and Physical Department (PW-3). whose testimony has itself contradicted the stand taken by the plaintiff/petitioners when he categorically stated that the disputed plot had been purchased by defendant/Respondent No. 1. During the cross examination PW-3 conceded that the receipts Exh.P-2 & P-3 contained no signature of the plaintiff whereas Abdul Salam while appearing as PW-4 narrated that he had sold the stamp paper of Exh.P-9/agreement and also obtained the signature of Defendant-Respondent No. 1 on the said stamp paper as well as in the Register maintained for the said purpose, Muhammad Mohsin PW-5 stated that he is son of Stamp Vendor and he identified the signatures of his father Abdul Rasheed over the stamp paper Exh.P3 & P4. Amir Ali while appearing before the learned trial Court as PW-6 stated that he was one of the arbitrators and Defendant No. 1 had admitted the plaintiff to be real owner before the arbitrators. Whereas the plaintiff while appearing as PW-9 affirmed the stance which he took in his plaint. A minute scrutiny of the statements of the said PW-s depicts that plaintiff remained fail to prove that he had actually paid the entire price of the disputed plot. Even no motive for executing a benami transaction in favour of the Defendant No. 1/Respondent No. 1 was also disclosed in the entire evidence produced by the plaintiff. However the plaintiff succeeded to prove the fact that the Defendant No. 1 had received certain amount from Dr. Muhammad Tariq, but there is no convincing evidence available on the record to support the plaintiff/petitioners' version that transfer of the disputed plot/shop in the name of Respondent-Defendant No. 1 was a benami transaction. The title documents issued by the Housing and Physical Department pertaining to the transfer of the disputed plot/shop are in favour of Defendant-Respondent No. 1, which carry strong presumption to negate the version of the plaintiff and the possession of the disputed property is also lying with Defendant No. 2. In such facts and circumstances, the plaintiff has miserably failed to prove that Defendant No. 1 did not purchase the disputed plot rather he himself had purchased the plot in dispute. So the plea of the petitioners/plaintiff that Respondent No. 1/Defendant No. 1 was a benamidar owner could not be proved during the trial Court by producing convincing and cogent evidence.

2. As regards the other plea raised by the petitioners/plaintiff that he had become owner of the disputed plot/shop on account of arbitration proceedings as a result whereof award (Exh.P9) was announced, suffice it to say that a perusal of the said document itself makes clear that it was not made a rule of Court and if at all it is presumed to be so even then no lawful award had been announced in favour of the petitioners/plaintiff, which neither fulfils the requirements of an award as the same was not got registered nor the petitioners/plaintiff had ever applied for making the said award rule of the Court under sections 14 & 17 of the Arbitration Act. In such facts and circumstances, the alleged award did not create any right or title regarding the disputed plot in favour of the petitioners/plaintiff and they cannot claim decree for declaration on the basis of said award as the award only becomes effective when it is made rule of Court and until passing of such decree by the Court of law, the award has no status in the eyes of law. The unregistered award even if received in evidence will not operate to create, declare, assign, limit or extinguish, which in present or future, any right or interest whether vested or contingent to or in immoveable property. Reliance can be placed upon Haji Nawab Din vs. Sh. Ghulam Haider and another (1988 SCMR 1623).

3. On the other hand as defendant/Respondent No. 1, who is real brother of the plaintiff, has never appeared in the Court as a witness nor contested the suit, but he was proceeded ex-parte, therefore, has been rightly burdened with the partial decree of Rs.55,000/-and Rs.15,200/- along with damages for the breach of contract.

4. In the light of above discussion I am not inclined to interfere with the well reasoned judgments and decrees passed by the Courts below in exercise of revisional jurisdiction conferred upon this Court by Section 115 CPC, the scope whereof is narrower and it can be exercised only if the judgments or orders under challenge are found to be fanciful, perverse and illegal or those were passed without jurisdiction, which is not the case in hand. The instant civil revision being devoid of any merit is dismissed.

(R.A.) Revision dismissed

PLJ 2013 Lahore 370

Present: M.Sohail Iqbal Bhatti, J.

TEHSIL MUNICIPAL ADMINISTRATION--Petitioner

versus

M/s. I.C.I. PAKISTAN LTD. etc.--Respondents

W.P. 335 of 2005, decided on 20.1.2014.

Contract Act, 1872 (IX of 1872)--

----S. 10--Valid contract--Agreed to increase in octroi rates subject to condition that no further increase be made--Binding contract interse parties--Acceptance letter created binding contract between parties--Validity--Offer made by respondent was accepted by petitioner in absolute term and also benefit of that contract was extended to respondent for a period of two years which itself shows that a valid contract in terms of Section 10 of Contract Act, 1872 had been executed between parties. [P. 372] A

Mr.Hifz-ur-Rehman Sayyed, Advocate for Petitioner.

Miss AyeshaHamid, Advocate for Respondent No. 1.

Mr.Khurshid Ahmad Satti, AAG.

Date of hearing: 20.1.2014.

Order

This civil revision is filed against the judgment and decree dated 14.3.2005 passed by the learned Additional District Judge, Jhelum.

1. Brief facts of the case are that prior to the commencement of the Financial year 1992-1993 the petitioner proposed 100% increase in the rates of octroi duty on all items including limestone and gypsum. Respondent No. 1 filed objections to this increase; and thereafter negotiations ensued between the petitioner and Respondent No. 1 and consequent to those negotiations the respondent agreed to withdraw its objections. It was further agreed by the petitioner that 23% increased rates would remain fixed between the parties for the next three years i.e. till 30.6.1995.

2. The petitioner on 23.4.1994 through a public notice in Daily Nawa-e-Waqt proposed further increase on various items including limestone and gypsum. The respondent filed the objection on 25.4.1994 on the ground that there was a binding agreement between the parties to the effect that 23% increase would remain in field for a period of three years i.e. till 30.6.1995. The objections of Respondent No. 1 were not accepted and the rate of octroi was enhanced. Aggrieved by this act the respondent filed a suit for declaration and permanent injunction which was dismissed by the learned Civil Judge, 1st Class, Jhelum, vide judgment and decree dated 9.10.2001. Aggrieved by the judgment and decree an appeal was preferred which was accepted by the learned Additional District Judge, Jhelum, through judgment and decree dated 14.3.2005. Hence, this revision petition.

3. The learned counsel for the petitioner argued that the impugned judgment was a result of misreading and non-reading of record. There was no binding contract between the parties which would have created any legal right in favour of the respondent; there was only an understanding between the parties. On the other hand, learned counsel for the respondent submitted that an offer was made by the petitioner Company through its letter dated 24.6.1992 which was accepted by the petitioner and perusal of Exh.P-1 to Exh.P-4 clearly shows that there was a binding contract interse the parties.

4. I have considered the arguments advanced by the learned counsel for the parties.

5. It is established from record that through Exh.P-2 i.e. letter dated 24.6.1992 the respondent agreed to 23% increase in octroi rates subject to the condition that no further increase be made for a period of three years and this offer was to be accepted by the petitioner through a resolution passed by the Town Committee. This offer/proposal was accepted by the petitioner under Resolution No. 3 dated 27.6.1992 (Exh.P-3) and this acceptance was conveyed to the respondent by the petitioner through letter dated 7.7.1992 (Exh.P-4).

6. In my mind Exh.P-2 was an offer made by the respondent Company which was duly accepted through letter dated 7.7.1992 (Exh.P-4). The wording of Exh.P-4 is as under:

"With reference to your Letter No. MSR:SH dated 24 June 92, on behalf of the Town Committee Khewra, we confirm the terms and conditions mentioned therein relating to our agreement regarding increase of 23% in octroi rates with effect from 1.7.1992 to remain fixed for a period of three years uptil 30.6.1995.

Certified copy of the Resolution dated 27.6.1992 of the Town Committee approving our above agreement is enclosed. We take this opportunity to thank you for your co-operation in setting this issue amicably."

1. After the letter written by the respondent no counter offer or proposal was made by the petitioner and letter dated 7.7.1992 was an acceptance letter which created a binding contract between the parties and the petitioner could not be allowed to wriggle out of this contract for a period of three years.

2. The term "offer" has been defined in Section 2(a) of the Contract Act, 1872 which reads as under:

"When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal."

Section 7 of the Contract Act, 1872 underlines that acceptance must be absolute and Section 7 reads as under:-

"Acceptance must be absolute.--In order to convert a proposal into promise, the acceptance must,--

(1) be absolute and unqualified;

(2) be expressed in some usual and reasonable manner, unless the proposal prescribes a manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but if he fails to do so, he accepts the acceptance.”

1. Similarly Section 8 of the Contract Act, 1872 reads as under:

"Acceptance by performing conditions, or receiving consideration.--Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal."

1. The petitioner had not only accepted the offer but had also performed the conditions of the proposal by not increasing the rates for two years, which also establishes that a valid contract had been concluded between the parties.

2. It is clear to my mind that the offer made by the respondent was accepted by the petitioner in absolute term and also the benefit of that contract was extended to the respondent for a period of two years which itself shows that a valid contract in terms of Section 10 of the Contract Act, 1872 had been executed between the petitioner and Respondent No. 1.

3. For what has been discussed above, I do not find any illegality or material irregularity in the judgment of the learned first appellate Court. Resultantly, this revision petition is dismissed and the judgment and decree of the first appellate Court dated 14.3.2005 is upheld.

(R.A.) Petition dismissed

PLJ 2014 Lahore 373 (DB)

Present: Amin-ud-Din Khan and Shahid Waheed, JJ.

ABDUL SATTAR--Petitioner

versus

MUHAMMAD RAFI etc.--Respondents

R.F.A. No. 732 of 2012, decided on 20.1.2014.

Limitation Act, 1908 (IX of 1908)--

----Ss. 5 & 14--Civil Procedure Code, (V of 1908), S. 96--Condonation of delay--Value of suit property for purposes of Court fee and jurisdiction was Rs. 3,150,000/- complication to determine forum of appeal--Question of--Whether period w.e.f. date of decree till fining of appeal before High Court can be condoned--Determination--Applicant had not explained delay after order of return of memorandum of appeal till alleged filing of appeal before High Court--Memorandum of appeal was received by applicant on 18.5.2012 and there was no reason to file appeal in July, 2012--Sections 5 and 14 of Limitation Act would come into play only if delay appears to be condonable because of applicant prosecuting his case with due diligence--Time consumed in pursuing appeal before District Court that was the wrong forum in given facts and circumstances of case cannot be condoned under Section 5 of Limitation Act, because applicant had failed to show that he prosecuted his remedy before wrong forum in good faith--Act of Court shall prejudice no body is not attracted to case in hand as delay was on account of applicant's own negligence and not due to act of Court--Application in hand being bereft of any merit is dismissed. [Pp. 375 & 376] A, B & C

Mr.Ijaz Mehmood Chaudhary, Advocate for Applicant/ Appellant.

Date of hearing: 20.1.2014.

Order

The applicant, Abdul Sattar, instituted a suit against the respondents for possession of the suit property through specific performance of agreement to sell dated 24.5.2006. The respondents filed an application under Order VII, Rule 11, CPC for rejection of plaint. The said application was accepted by the learned Civil Judge 1st Class, Okara who vide order and decree dated 8.10.2011 rejected the plaint. Feeling .aggrieved, the applicant assailed the aforesaid decree through and appeal under Section 96 CPC before the learned Addl. District Judge, Okara. The valuation of subject matter in the suit was Rs. 3,150,000/- which was beyond the pecuniary jurisdiction of the learned Addl. District Judge, Okara and, thus, vide order dated 18.5.2012 the appeal was returned to the applicant with a direction to file the same before the competent forum. Thereafter, the applicant on 3.9.2012 preferred an appeal before this Couit alongwith the instant application under Section 5 of the Limitation Act, 1908 for condonation of delay.

1. The applicant in this application has stated that the learned Addl. District Judge, Okara vide order dated 18.5.2012 returned the appeal; that the appeal was presented before this Court in the month of July, 2012 but the office refused to entertain the same due to summer vacations; that after summer vacations the appeal was presented on 3.9.2012; that the appeal was returned by the office with the objection that a separate application under Section 5 of the Limitation Act be filed; and, that the time consumed in taking back the memorandum of appeal and then to refile it before this Court is condonabie and thus the delay, if any, may be condoned.

2. The question which requires determination in this application is as to whether the period with effect from the date of decree till the filing of appeal before this Court can be condoned. The above said question may be answered by taking guidance from the following extract of the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of Karamat Ullah and three others vs. Sardar Muhammad Aslam Sukhera (1999 SCMR 1892).

"And the appellants would be required to explain this delay for the period, commencing from the date of decree till the filing of the appeal before the District Court. Even if the period during which the first appeal remained pending in the High Court is ignored, still the appellants need to explain the delay after the order of return of memorandum of appeal i.e. 17.3.1987 till the filing of the appeal before the District Judge i.e. 18.5.1987. The explanation in the application filed under Sections 5 and 14 of the Limitation Act is hardly satisfactory. There was no reason for applying certified copies and awaiting their delivery by the Copying Agency as the appeal was simply to be received and re-filed before the District Judge. Even if the explanation of having applied for copies is attached some importance, yet the appellants are required to explain their failure to refile the appeal immediately on receiving the certified copies of the orders of the High Court. The memo of appeal was received by them on 9.5.1987 aqd there was no reason to file the appeal on 18.5.1987 after 9 days delay, not only that, the conduct of the appellants demonstrates acute negligence but also their application fails to explain delay for each day from 9.5.1987 to 18.5.1987."

In the presence of Section 18 of the West Pakistan Civil Courts Ordinance, there could be no doubt or complication to determine the forum of appeal. Sections 5 and 14 of the Limitation Act would come into play only if the delay appears to be condonable because of the appellants prosecuting their case with due diligence. The time consumed in pursuing the appeal in wrong forum could not be condoned under Section 5 of the Limitation Act. Ghulam Ali v. Akbar alias Akoor and another (PLD 1991 SC 957) may he cited in this behalf. In Abdul Ghani v. Mst. Mussarat Rehana (1985 CLC 2529) it was observed that for bringing the case within the ambit of principles governing Section 14, the appellant has to show that he prosecuted his remedy before the wrong forum in good faith. In Government of Pakistan vs. Rafi Associates Limited (1985 CLC 2234 Kar.) choosing wrong forum lacking due care and attention were not considered as acts done in good faith. The principle that the act of Court shall prejudice nobody is not attracted in the present case, as the delay was on account of the appellant's own negligence and not due to the act of Court."

1. Now, the case in hand is examined in the light of afore-cited judgment. The perusal of instant application reveals that the applicant has not explained the delay after the order of return of memorandum of appeal i.e. 18.5.2012 till the alleged filing of appeal before this Court in July, 2012. The memorandum of appeal was received by the applicant on 18.5.2012 and there was no reason to file the appeal in July, 2012. This conduct of the applicant, as per above quoted precedent, demonstrates acute negligence.

2. There is yet another angle to address the issue under discussion. The applicant instituted the suit for possession of the suit property through specific performance of agreement to sell. It is the case of the applicant that he had purchased the suit property for a consideration of Rs. 3,150,000/-. It means that value of the suit property for purposes of court fee and jurisdiction was Rs.3,150,000/-. In this view of the matter there could be no doubt or complication to determine the forum of appeal. Sections 5 and 14 of the Limitation Act would come into play only if the delay appears to be condonable because of the applicant prosecuting his case with due diligence. Thus, as per principle laid down by the Hon'ble Supreme Court in the case of Karamat Ullah (supra), the time consumed in pursuing the appeal before the District Court that is,the wrong forum in the given facts and circumstances of the case cannot be condoned under Section 5 of the Limitation Act because applicant has failed to show that he prosecuted his remedy before wrong forum in good faith. The principle that the act of Court shall prejudice no body is not attracted to the case in hand as the delay was on account of the applicant's own negligence and not due to the act of Court. Thus, the application in hand being bereft of any merit is dismissed.

MAIN CASE:

1. Since C.M. No. 2-C/2012 has been dismissed, the appeal is also dismissed being barred by time.

(R.A.) Appeal dismissed

PLJ 2014 Lahore 376

Present: AliBaqar Najafi, J.

FIAZ RIAZ, EX-DEPUTY GENERAL MANAGER (SMEDA), LAHORE--Petitioner

versus

SMALL AND MEDIUM ENTERPRISES DEVELOPMENT AUTHORITY (SMEDA) through its Chief Executive Officer, Lahore and 6 others--Respondents

W.P. No. 15655 of 2013, decided on 21.6.2013.

Small and Medium Enterprises Development Authority--

----Rr. 30, 38 & 39--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Termination of employee on disciplinary grounds--Misconduct was requried detailed inquiry regarding allegations on basis of evidence--SMEDA was competent to conduct disciplinary action or proceedings--Validity--Whenever, serious allegations had been levelled against the civil servant, who denied it, a regular inquiry cannot be dispensed with in which the initial burden is on the department--Impugned order does not reveal any such inquiry having been, conducted before passing the impugned order--Since a regular inquiry was not conducted asking the petitioner to show that he was MBA for which the degree is sine-qua-non, therefore, he should have been granted the requisite time. [P. 378] A & B

Mian Bilal Bashir and Raja Tasawar Iqbal, Advocate for Petitioner.

Date of hearing: 21.6.2013.

Order

Through this constitutional petition the petitioner seeks setting aside of the order dated 10.6.2013, whereby the petitioner was dismissed from service.

1. The brief facts giving rise to the filing of this petition are that in the year 1998, the petitioner was selected as Business Councilor and ever-since he is performing the functions to the entire satisfaction of his superiors. He has also been acknowledged and awarded for his outstanding services. He was initially promoted as Assistant Manager and then Deputy Manager. That on 5.3.2013, the petitioner was served a show-cause notice, whereby he was required to submit MBA-Degree after which he submitted reply to the said show-cause notice explaining therein that due to GPA, the required MBA-degree could not have been issued and that he would be able to submit a copy of the degree: (HEC recognized and duly verified) latest by July 15, 2013. He also stated that he should not be discriminated as earlier similarly placed persons were granted a reasonable time of five years w.e.f. February, 2008 to improve their educational qualification. However, vide impugned order dated 10.6.2013, the petitioner was terminated from post of Deputy Manager on disciplinary grounds with immediate effect, hence this petition.

2. The learned counsel for the petitioner submits that he was entitled to regular inquiry as required by Supreme Court of Pakistan and places reliance upon "Executive Engineer, GEPCO Limited and another vs Liaqat Ali" (2010 SCMR 237); submits that even a misconduct requires a detailed inquiry regarding the allegations on the basis of the evidence. Places reliance upon "Basharat Ali vs. Director, Excise And Taxation, Lahore and another" (1997 SCMR 1543); that under Article 10-A read with Article-25 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has been deprived of his fundamental right to plead his defence on the basis of the evidence both oral as well as documentary and prays for setting aside of the impugned order.

3. I have heard the learned counsel for the petitioner and perused the file.

4. Under Rule 39 of the Chaper-VII of SMEDA, an employee aggrieved by decision given by competent authority under Rule 37 can file appeal to the appellate authority within a period of thirty (30) days and the appellate authority has been described in Rule-3 sub-clause-A as next above the authority competent to conduct disciplinary action or proceedings as prescribed under Rule-30. Under Rule-36, an inquiry is required to be conducted regarding the allegations made in the show-cause notice in view of the reply submitted by the petitioner. Where-ever, the defence plea is supported by documents in total denial of the charges claiming mala fides on the part of the authority, such allegations become disputed and require inquiry. Whenever, serious allegations have been levelled against the civil servant, who denied it, a regular inquiry cannot be dispensed with in which the initial burden is on the department. The impugned order does not reveal any such inquiry having been, conducted before passing the impugned order.

5. I place my reliance upon "Executive Engineer, GEPCO Limited and another vs. Liaqat Ali" (2010 SCMR 237) and "Basharat Ali vs. Director, Excise Taxation, Lahore and another" (1997 SCMR 1543).

6. The main plea of the petitioner is that he is MBA qualified in Sessions 1991 to 1993 from the Pak American Institute of Management Sciences, Lahore (Pak-AIMS) with MAJORS in Marketing (Marketing Research International Marketing & Sales Management). The degree could not be issued as certain GPA requirements were to be fulfilled, therefore, transcript showing the complete credit hours required for MBA Degree Programme were issued. He, however, stated in his reply that he would be able to submit n copy of the degree (HEC recognized and duly verified) latest by July 15, 2013.

7. Since a regular inquiry was not conducted asking the petitioner to show that he was MBA for which the degree is sine-qua-non, therefore, he should have been granted the requisite time. I am fortified by "Executive Engineer, GEPCO Limited and another vs Liaqat Ali" (2010 SCMR 237) and "Basharat Ali vs. Director, Excise Taxation, Lahore and another" (1997 SCMR 1543).

8. In this view of the matter, I dispose of this petition with the direction to Respondent No. 1 to entertain the review petition of the petitioner under Rule 38 which will be taken up immediately after 15th of July 2013. Meanwhile, the impugned order shall remain suspended. The same shall be decided in accordance with law after verifying the degree of the petitioner as per his stand taken in the reply to the show-cause notice.

(R.A.) Petition disposed of

PLJ 2014 Lahore 379 (FB)

Present: Syed Mansoor Ali Shah, Muhammad Farrukh Irfan Khan and Atir Mahmood, JJ.

ARSHAD MEHMOOD--Petitioner

versus

COMMISSIONER, etc.--Respondents

W.P. No. 31986 of 2013, decided on 3.2.2014.

Punjab Local Government Act, 2013 (XVIII of 2013)--

----S. 10-A--Constitution of Pakistan, 1973, Art. 199--Constitutional jurisdiction of High Court to seek political justice--Election of local government--Delimitation of constituencies--Notifcation of delimitation--Scope and extent of ouster clause--Question of delimitation--Constitutionality of process of delimitation of constituencies conducted by Government--It is axiomatic and by now a judicial cliche, that sub-constitutional legislation cannot curtail or abridge the constitutional jurisdiction of High Court--Legislature being creature of constitution cannot take away jurisdiction of constitutional Court--Challenged order was illegal and outside the four corners of the law and no other alternate or special remedy has been prescribed by law--Ouster clause under Section 10A of the Act does not, abridge or curtail the constitutional jurisdiction of High Court to judicially review the orders, notifications and the acts of the executive--Section 10A of the Act also does not permit any "authority" to review or correct delimitation after the announcement of the election schedule--Such purportedly ousts the constitutional jurisdiction of the Election Commission from performing its constitutional role under Arts. 140A(2), 218(3) and 219(d) of Constitution, which is neither conceivable nor permissible--Ouster caluse does not in any manner curtial or abridge the jurisdiction of Constitutional Court or Election Commission of Pakistan--Judiciary cannot efface itself by divesting its judicial power to an administrative branch or entity--Role and obligations of ECP under the electoral laws cannot be altered, abridged or taken away by the Provincial Legislature--High Court directed ECP to perform its constitutional role without further ado and hold elections to the local governments in Punjab ECP need not to await for the legislative amendments to the Act--Provincial Government under Art. 140-A of Constitution would take necessary steps for carrying out amendments in the Punjab Local Government Act, 2013 in the light of the constitutional role and obligations of ECP provided under Part VIII of the Constitution, so that democracy in the country is further strengthened. [Pp. 394, 395, 397, 398, 399, 400, 423, 431] A, B, D, E, G, I, X, CC & DD

Punjab Local Government Act, 2013 (XVIII of 2013)--

----S. 10-A--Constitutional jurisdiction of High Court--Final notification was issued by delimitation officer--Ouster clause under Section 10A of the Punjab Local Government Act, 2013 cannot impose fetters on the constitutional jurisdiction of High Court or the constitutional role of Election Commission--Administrative branch of High Court cannot be directed through a judicial order not to entertain and fix cases of any particular nature without providing the litigant the right to access to justice and the right to place the case before a forum exercising judicial power--Sections 8 to 10 of the Punjab Local Government Act, 2013 and Rules 3 to 8 of the Punjab Local Governments (Delimitation) Rules, 2013 are inconsistent with Arts. 218(3) & 222(b) of Constitution as they abridge and take away the constitutional role and obligation of ECP besides offending Arts. 3, 4, 9, 14, 17, 19 and 25 of the Constitution--All these petitions were allowed and the impugned orders of delimitation authority and impugned final notifications issued by the Delimitation Officers were set aside. [P. 430] BB

Punjab Local Government Act, 2013 (XVIII of 2013)--

----S. 10-A--Constitution of Pakistan, 1973, Arts. 140-A(2) 218(3) & 219(d)--Delimitation of constituencies--Vires of ouster clause and Election Commission of Pakistan--Constitutional role--No electoral law abridging power of election commission--Curtial judicial power of constitutional Court--Validity--Section 10-A of the Act not only attempts to completely curtail judicial power of Constitutional Court, it also puts fetters on the exercise of the constitutional authority of Election Commission of Pakistan. [P. 398] E

Interpretation of Statute--

----Legislature is presumed to be aware of its limitations and is als attributed an intention not to over-step its limits. [P. 398] F

Constitution ofPakistan, 1973--

----Arts. 4, 9 & 10-A--Direction to office of Court not to entertain petitions--Ambit of ouster clause--Principle of access of justice and harsh denial of constitutional and fundamental rights of due process and fair trial--An ouster clause in a sub-constitutional legislation and does not abridge or curtail the jurisdiction of a Constitutional Court, any direction to the administrative office of the Court not to entertain a case and to shut the doors of justice without granting the petitioner an opportunity to place his grievance before a judicial forum, offends the well-enshrined principle of access to justice and is a harsh denial of the constitutional and fundamental rights of due process and fair trial--Right to access to the courts means that no one must be hindered either by law, administrative procedures or material resources from addressing himself or herself to a Court or tribunal for the purpose of vindicating his or her rights. [P. 399] H

Democracy--

----Scope--Democracy is rule of democratic values--Defined in two way--Judiciary cannot efface itself by divesting its judicial power to an administrative branch or entity--This is constitutionally grotesque and strikes at the constitutional structure of the State. [P. 400] I

Constitution ofPakistan, 1973--

----Arts. 3, 4 & 9--Political justice--Right to representation of citizen in election--Life of a citizen in a representative democracy cannot be envisaged without its political dimension; the ability to participate in the political life of the nation, the freedom to exercise political choice, the right to choose a political leader and elect the government of his or her choice. [P. 402] K

Constitution ofPakistan, 1973--

----Art. 14--Right of dignity--Vital of fundamental rights--Human intellectual and moral capacity--Human dignity includes right to demand a political democratic structure of governance where rule of law is supreme and no one is above the law--A political system, which is not chosen by the people is repressive, autocratic and tyrannical besides being antithetical to self respect, freedom and human dignity. [Pp. 402 & 403] L

Constitution ofPakistan, 1973--

----Arts. 19 & 25--Freedom of expression--Right to fair representation, right to electoral equality, right to freely elect a leader right to go to polls--Freedom of expression under Art. 19 includes the freedom to express a political choice through a vote and through a free, neutral and transparent electoral system--Going to the ballot is the collective expression of freedom of a nation--Right to equality under Art. 25 guards against electoral discrimination and ensures electoral equality. [P. 403] M

Constitution ofPakistan, 1973--

----Arts. 32, 37(1) & 38--Political aspirations under constitution--Political structure--Local government is the third tier of political structure with the objective to decentralize the Government administration so as to facilitate expeditious disposal of the business to meet the convenience and requirement of the public--Political vision is to provide basic necessities of life, such as food, clothing, housing, education and medical relief to all citizens--To reduce disparity in the income and earning of individuals, to provide citizens facilities for work and adequate livelihood, to secure the well being of people by raising their standards of living by preventing concentration of wealth and means of production in the hands of the few, to the detriment of general interest are the political aspirations under our Constitution. [Pp. 403 & 404] N

Right to Vote--

----Democracy demands a life of equal participation in establishment of democracy state--In a constitutional democracy, a vote is a symbol of political dignity and freedom of a citizen--It embodies freedom of choice, expression, equality and the license to participate in the political life of a nation and the right to establish self-government--Life of a citizen in a representative democracy demands a life of equal participation in the establishment of a democratic stat--Right to vote in secret is absolute and shall not be restricted in any manner whatsoever. [Pp. 404 & 405] O & P

Right of Equal Opportunity--

----Parties are charged with the primary responsibility of organizing citizens into political groups for electoral purposes--In the field of elections and voting, formal equality includes the principle of formal equal opportunity, namely, the opportunity of political parties and voter organizations to compete for electoral support--Such right of equal opportunity derives from the constitutional status of political parties, the freedom to form political parties, and principle of a multiparty system which is associated with the concept of a free democracy--Principle of equal opportunity governs the election proper as well as compaign--Democracy cannot function as a matter of principle - if the parties are unable to enter an election campaign under the same legal circumstances. [P. 406] Q

Political Justice--

----Scope of--Principle of "one man one vote" flows from the concept of "political justice. [P. 410] R

Electoral Jurisprudence--

----Growing electoral jurisprudence shows that the right to vote actually translates into a more potent and substantial right to equal voting power--Electoral process other than ensuring fair and free polls, is to ensure that the weight of the vote of a citizen is not diluted or discriminated prior to the polls during delimitation of constituencies--Delimitation is a vital and indispensable milestone in electoral process as it defines and fashions the strength and weight of a vote--Fair and transparent delimitation of constituencies is pivotal for holding honest, fair and just elections--Central focus of any fair and just electoral system is to ensure that the right to vote is properly guarded against the scourge of vote dilution or discrimination during the process of delimitation--Any electoral system must, therefore, be designed to protect the right to vote--Any step or stage in the process which has a bearing on the right to vote is an indispensable part of "Election" or electoral process. [P. 410] S

Delimitation--

----Scope of--Delimitation, means the demarcation of the boundaries of an electoral constituency in order to ensure fair, just and proportional representation of the people in the elections--Basic object of delimitation is to secure, so far as practicable, equal representation for equal segments of the population in legislative bodies. [P. 411] T

Election Commission--

----Scope--According to Oxford Dictionary of Politics an election commission is "a non-partisan body which determines election procedures and district boundaries and oversees the conduct of elections. [P. 420] U

Constitution ofPakistan, 1973--

----Arts. 140-A & 222--Power of Provincial Legislature to legislate--Role and obligations of ECP under the electoral laws cannot be altered, abrdiged or taken away by Provincial Legislature. [P. 422] V

Local Government System--

----Scope of--No political system is considered complete and democratic if it does not have a system of local Government--Local Government serves a two-fold purpose first purpose is the administrative purpose of supplying goods and services; the other purpose is to represent and involve citizens in determining specific local public needs and how these local needs can be met--Local representative government is a process that spans and connects representation and administration at local levels within local government structures--Local government is the third level of government deliberately created to bring government to the grass-roots population and gives the grass-roots population a sense of involvement in the political processes that control their daily lives. [P. 422 & 423] W & X

Punjab Local Government Act, 2013 (XVIII of 2013)--

----Preamble--Constitution of Pakistan, 1973--Art. 140-A--Preamble describes the Act to establish an elected local government system to devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments as envisaged under Art. 140-A of Constitution--Preamble further states that the Act promotes good governance and effective delivery of services and transparent decision-making through institutionalized participation of the people at the local level. [P. 423] Z

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

----S. 76-A--Scope of--Electoral rolls or delimitaiton--Scope of election petitions under ROPA and the Act is limited to the conduct of elections--Election petitions under both the laws clearly provide a remedy to a candidate to agitate grounds before Election Tribunal for the disenfranchisement of the returned candidate and at best election of the disputed constituency can be rendered void by Tribunal. [P. 426] AA

Mr. Abid Saqi, Advocate for Petitioner.

M/s. Muhammad Azhar Siddique, Shahansah Shamil Paracha, Muhammad Irfan and Munir Ahmad, Muhammad Safdar Abbas Khan, Mian Muzaffar Hussain, Amjad Ali, Mian Sohail Anwar, Waqas Bin Zaffar Sraw, Shaikh Taimour Ali Mustafa, Asghar Ali Gill, Lala Shakeel-ur-Rehmna, Abdul Wahid Ayyoub Mayo, Rana Muhammad Aslam Nadeem, Abdul Hafeez Ansari, Rai Sarfraz Ali Khan, Muhammad Mehmood Ch., Amjad Iqbal Khan, Ch. Rizwan Hayat, Mian Javed Iqbal Arain, Sheikh Muhammad Siddique, Aftab Rahim, Mirza Mukhtar Baig, M. Mushtaq Ahmad Dhoon, Naila Riaz Chaudhry, Tahir Shehzad, Muhammad Tanveer Ahmad, Malik Muhammad Akbar Awan, Ch. Zulfiqar Ali,Ch. Aftab Rashid, Sardar Muhammad Nawaz Dogar, Hafiz Muhammad Farooq Khan, Muhammad Maqsood Buttar, Ch. Haider Bakhsh, Muhammad Ashraf Sagoo, Malik Ghulam Abbas Nissoana, Hafiz Ansar Shuaib Hunjra, Shafiq Ahmad Malik, Shahid Mahmood Ch., Muhammad Sajjad Naeem Mohal, Ch. Anwaar-ul-Haq Pannun and Abdul Wajid Khan, Ch. Ijaz Akbar, Aziz-ur-Rehman Sheikh, Ch. Muhammad Naeem, Rana Iqbal Ahmad Khan, Ch. Mehboob-ul-Hassan Bhullah, Muhammad Ramzan Chaudhry, Malik Mushtaq Ahmad Nonari, Haseeb Raza Ch., Ahmad Awais and Muhammad Hammad Munir, M. Baleegh-uz-Zaman Chaudhree, Muhamamd Azhar Solehria, Inzar Rasool, Faisal Maqsood Ahmed Khan and Safdar Ali Thakar, Sardar Kalim Ilyas, Fazal Abbas Kamyana, Muhammad Mozzam Sher Kallue, Rana Ijaz Ahmad Khan, Malik Saleem Iqbal Awan, Murreed Ali S.M. Bhutta, Mian Muhammad Ismail Thaheem, Ch. Muhammad Siddique Virk, Nasrullah Sattar Pasha, Muhammad Ishaq, Farrukh Gulzar Awan and Zubair Afzal Rana, Mudassar Abbas Maghiana, Ch. Tariq Mahmood Raan, Khalid Ishaq, Abdul Karim Khan, Khalid Ishaq and Ch. Tariq Mahmood Rawn, Hafiz Khalil Ahmad, Sardar Muhammad Ramzan, Syed Shahab Qutab, Irfan Mahmood Ranjha, Raja Zulqarnain, Mujahid Din Malik, Dost Muhammad Kahoot, Rao Muhammad Mudassar Azam, Shahid Rafique Meo, Mian Muhammad Saeed, Waqar Saeed Khan, Ch. Latif Khan Saraa, Muhammad Bashir Malik, Rana M. Arshad Khan, Pir Muhammad Asad Shah, Faisal Iqbal Awan and Iqbal Dhengal, Malik Amjad Pervaiz, Ch. Muhamamd Saleem, Zahid Farani Sheikh, Khalid Nawaz Ghumman, Nasrullah Khan Baber, Ch. Iqbal Ahmad Khan, Ch. Arshad Hussain, Malik Muhammad Imtiaz Mahil, Iftikhar Ahmad Mian, Azhar Iqbal, Mian Arshad Ali Mahar, Mubeen-ud-Din Qazi, Azhar Siddique Cheema, Waqar Mushtaq, Zulfiqar Ali Qureshi, Mirza M. Aziz-ur-Rehman, Amjad Ali, Tahir Ahmad Sandhu, Zubda-tul-Hussain, Muhammad Mumtaz Faridi, Mian Abdul Aziz, Abdul Wahid, Zubair Bulqan Rana, Muhammad Farooq Qureshi Chishti, Nazir Ahmad Ghazi and Abdul Khaliq Safrani, Dr. A. Basit, Shahid Naseem Tahir Gondal, Mushtaq Ahmad Mohal, Abdul Latif Tariq, Maqbool Ahmad Naz, Ahsan Naveed Farooqi, Imdad Ali Nekokara and Ch. Abdul Ghaffar, Zahid Aslam Malaik and Sami-ul-Hassan Rana, Ch. Muhammad Idrees, Muhammad Akhtar, Umair Khan Niazi, Major (Retd.) Aftab Ahmad, Ch. Tanveer Ahmad Hanjra and Rana Muhammad Arif, Waseem Mumtaz Malik, Malik Ejaz Hussain Gorchha, Sh. Irfan Akram, Ch. Muhammad Tariq-ur-Rehman, Muhammad Rizwan Ullah Gondal and Bakhtiyar Kasuri, Ch. Muhammad Naseer, Ch. Muhammad Arshad Bajwa, Ch. Muhammad Rafique Jathool, Asif Bashir Mirza and Rabeel Raza Bhatti, Advocates for the Petitioners in Connected Writ Petitions.

Syeda Faiza Shah, Advocate/Petitioner in person (in W.P. No. 3357/2013).

Mr. Imran Javed Qureshi, Advocate/Petitioner in person (in W.P. 33738/2013).

Mr. Naseer Ahmad Bhutta, Additional Attorney General for Pakistan, Mr. Muhammad Mahmood Khan, Deputy Attorney General for Pakistan, Mr. Mustafa Ramday, Acting Advocate General Punjab, Mr. Muhammad Hanif Khatana, Additional Advocate General, Punjab, M/s. Khawaja SalmanMahmood, Shan Gull and Waqas Qadeer Dar, Assistant Advocates General, Punjab, M/s. Saqib Akram Gondal and Rana Iftikhar Ahmad, Advocates for Respondent No. 3.

M/s. Ch. Muhammad Anwar Bhindar, Mian Subah Sadiq Kalasson, Muhammad Anwar Ghumman, Moeez Tariq, Ch. Akbar Ali Shad, Muhammad Azam Warraich, Malik Rab Nawaz, Ch. Abdul Rashid, Ch. Muhammad Hussain, Mirza Shahid Baig, Khawar Mehmood Khatana, Ch. Abdul Malik, Tariq Manzoor Chauhdyr, Muhammad Anwar Chaudhry, Naveed Ahmad Khawaja, Ch. M. Lehrasib Khan Gondal, Muhammad Harooq Javed, Shahid Maqsood Khan, Ibadat Ali, Asad Jamal Akbar, Ch. Anwaar-ul-Haq Pannun and Abdul Wajid Khan, M. Asad Manzoor Butt, Asif Afzal Bhatti, Barrister Syed Nauman Shah and Abdul Waheed Khan Baluch, Advocates for the private respondents in connected writ petitions.

Rana Muhammad Aslam, Deputy Director, Local Goverment Elections Punjab, Election Commission of Pakistan, Lahore.

Mr. Ali Akhtar Khan, Law Officer, Election Commission of Pakistan, Lahore.

Mr. Anwar Aziz, Joint Census Commissioner, Pakistan Bureau of Statistics.

Ch. Abrar Ahmad, Director Legal, Local Government.

M. Naeem Akhtar, Assistant Director Legal, Local Government.

M/s. Muhammad Shahzad Shaukat, Salman Akram Raja, Nasar Ahmed, Babar Sattar and Saroop Ijaz, Advocates for Amics Curiae.

Mr. Sohail Shafiq (AD&SJ/Seniro Research Officer) and M/s. Muhamamd Amir Munir Rai Muhammad Khan and Sher Hassan Parvez (Civil Judges/Research Officers) at the Lahore High COurt Research Centre (LHCRC).

Dates of hearing: 26, 27, 30 and 31.12.2013.

Judgment

Syed Mansoor Ali Shah, J:--

"Liberty of the ancients consisted of sharing of a nation's sovereign authority among that nation's citizens. This sharing of sovereign authority enlarged the citizen's minds, ennobled their intellectual thoughts and established among them a kind of intellectual equality which forms the glory and the power of a people."[1]

Protesting against delimitation of constituencies and alleging gerrymandering, residents of the newly drawn Union Councils and Wards have invoked the constitutional jurisdiction of this Court to seek "political justice."

1. The petitioners have assailed the constitutionality and legality of the law and process of "delimitation" of Union Councils and Municipal Committees into Wards, in the Province of Punjab by the Provincial Government, at the exclusion of the Election Commission of Pakistan ("ECP"), under the Punjab Local Government Act, 2013 ("Act")

for the purposes of Local Government Elections, 2014.[2] In addition, the vires of the ouster clause under Section 10A of the Act has also been challenged.

1. More specifically, the vires of Sections 8 to 9 and Section 10A of the Act, Order of Delimitation Authority, Gujranwala Division dated 21-11-2013 and the consequent final Notification of Delimitation issued by Delimitation Officer, Gujrat dated 5-12-2013 under the Act read with Punjab Local Governments (Delimitation) Rules, 2013 ("Rules") have been challenged before us.[3]

2. The instant petition came up for hearing before a learned single Judge of this Court, who on the question of jurisdiction to entertain the instant matter, expressed disagreement with the view of another learned single Judge of this Court and directed that the case be placed before the Hon'ble Acting Chief Justice for constitution of a larger bench in the light of Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423). The disagreement over the jurisdiction of this Court was regarding the scope and extent of the ouster clause under Section 10-A of the Act. Relevant extracts of earlier order dated 13.12.2013 (first order) passed in W.P. No. 15033/2013 and order dated 20.12.2013 (second order) expressing disagreement by the learned single judge hearing this petition are as under:

First Order.

1. Since the Election Commission of Pakistan has notified the election schedule... and the electors of each Union Council/Ward are called upon to elect their representatives of Local Government Institutions, as such after issuance of such notification the Delimitation Officers/Delimitation Authority have become functus officio in order to review or to correct any delimitation of any Union Council or Ward. This Court in Constitutional jurisdiction, thus also would not be in a position to direct such Authority or Officer to review or correct any delimitation process which has already attained finality on issuance of election schedule. No action thus is required to be taken in the writ petitions, the same are disposed of as such.

2. The office is directed not to entertain and fix any writ petition filed requiring any direction to the Delimitation Authority/Officer or seeking any review or correction in any delimitation of a Union Council or Ward which already attained finality as noted herein above.[4]

Second Order.

1. Respectfully this Bench does not subscribe to the view taken by my learned brother as the matters which are being heard by this Court are, inter-alia, in relation to some transgression of law, non-exercise of jurisdiction or colourful exercise of jurisdiction by the Delimitation Officers/Authorities, therefore, the jurisdiction vested in this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is being invoked to get the said illegalities rectified and a non obstante clause in a legislation will not come in the way of the High Court to entertain such a petition...

2. Finally, I find force in the argument of learned counsel for the petitioner that the use of word "Court" does not include the High Court. Therefore, while amendment made under Section 10A of the Act ibid can remain on the statute subject to challenge on its being ultra vires of Constitution or rights of the parties, this Court has the jurisdiction to deal with such issues which may be brought to its notice under Article 199 of the Constitution. Reliance is placed on the case of Federation of Pakistan through Secretary Defence and others v. Abdul Basit (2012 SCMR 1229).

3. While considering the dictum laid down in the case of Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423) the matter is referred to the Hon'ble Acting Chief Justice for constitution of a Larger Bench....[5]

4. When the matter was put up before the Hon'ble Chief Justice, it transpired that two Division Benches of this Court had also expressed their views on the question in their brief orders dated 16-12-2013 and 19-12-2013 passed in ICA No. 346/2013 and ICA No. 1029/2013, respectively. In one case the ICA was dismissed on the basis of the ouster clause while dismissal in the other appeal was on the ground that Election Schedule has been announced and any interference would "frustrate the election process." None of these orders explicitly dealt with the limitation on the exercise of the constitutional jurisdiction of this Court or directed the office of the Court not to entertain such like petitions for hearing. In this backdrop the Hon'ble Chief Justice vide administrative order dated 23.12.2013 thought it appropriate to refer all pending cases regarding delimitation of Union Councils and Wards to this Bench for adjudication.

Scope of the case.

1. After examining the ouster clause under Section 10A of the Act, the Order of Delimitation Authority, the Notification issued by the Delimitation Officer, the brief facts of the case and the facts and the prayer made in connected W.P. No. 33581/2013[6] we are of the view that constitutionality of the process of delimitation of constituencies conducted by the Government under Sections 8 to 10 of the Act read with Rules 3 to 8 of the Rules is thrown into sharp relief. Even otherwise, "....Judges of the Supreme Court and the High Courts are bound by their oath and duties to act so as to keep the provisions of the Constitution fully alive and operative, to preserve it in all respects, save from all defects or harm and to stand firm in defence of its provisions against attack of any kind.[7]" Therefore, without delving into the factual intricacies associated with delimitation of constituencies, we venture to address the following constitutional and legal questions that arise in this case:

(i) Ouster Clause.

(a) Whether the constitutional jurisdiction of this Court to judicially review the orders of the Delimitation Officer and Delimitation Authority, after the Election Schedule has been announced, stands ousted by a sub-constitutional provision i.e., Section 10A of the Act?

(b) Whether Section 10A of the Act also ousts the jurisdiction of the Election Commission of Pakistan from reviewing the correctness of the delimitation orders/notifications, when it enjoys the apex constitutional role and obligation to independently and neutrally hold, organize, conduct and make necessary arrangements for elections in the country in order to ensure that elections are conducted honestly, justly, fairly and corrupt practices are guarded against under Articles 140A(2), 218(3), 219(c) and 222 of the Constitution?

(c) Whether the judicial branch (i.e., administration) of this Court can be directed, through a judicial order, "not to entertain and fix any writ petition requiring any direction to the Delimitation Authority/Officer" in the light of the above ouster clause?

(ii) Scope and meaning of "Election" under the Constitution.

Whether the scope and meaning of "Election" needs to be drawn from the constitutional electoral role and obligation of Election Commission of Pakistan under the Constitution? or in the limited sense of the word "election," contextualized within the narrow collage of the term "conduct of elections" under Article 218(3), the word "Election" under Article 225 of the Constitution and the peculiar scope and the remedial texture of an Election Petition under The Representation of the People Act, 1976 ("ROPA") or the Act ?

(iii) Whether "delimitation" is part of "Election" under the Constitution?

Whether "delimitation" of a constituency is an integral and pivotal part of "Election" (or the electoral process) and falls exclusively under the constitutional role and obligation of ECP to organize and make necessary arrangements (as opposed to conduct of elections) for holding elections?

(iv) Whether Delimitation for Local Government Elections is the sole prerogative of Election Commission of Pakistan?

Whether "delimitation" for the purposes of Local Government elections, post 18th Constitutional Amendment,[8] is the sole prerogative of the Election Commission of Pakistan under the Constitution?

(v) Provincial Legislature and the constitutional role of ECP.

Whether Provincial Legislature under Article 140A(1) of the Constitution read with its residuary legislative powers could oust the role of ECP from the Act (i.e., provincial law on Local Government System including the electoral law) after the insertion of Article 140A(2) of the Constitution? And whether harmonious reading of Article 140 A(1) and Article 222 binds the provincial legislature to make electoral laws within the scope of electoral laws mentioned in Article 222?

(vi) Meaning of "to hold elections".

Whether to hold elections by ECP under Articles 140A(2) and 219(d) of the Constitution encompass organizing, conducting and making arrangements for elections as provided under Article 218(3) of the Constitution?

(vii) Constitutionality of the relevant provisions of the Act and the Rules.

Whether Sections 8, 9 & 10 of the Act and Rules 3 to 8 of the Rules, authorizing the Provincial Government to carry out delimitation of the Union Councils and Municipal Committees into Wards for the purposes of Local Government Elections, abridge and curtail the constitutional role of ECP under Articles 140A(2), 218(3), 219(d) and 222 of the Constitution besides offending the principle of "political justice' and the concomitant constitutional rights under Articles 3, 4, 9, 14, 17, 19 and 25 of the Constitution?

(viii) Constitutional directives by Election Commission of Pakistan.

Whether after the 18th Constitutional amendment, Election Commission of Pakistan enjoys a constitutional mandate to proceed with the holding of the Local Government Elections (including delimitation of constituencies) by issuing constitutional directives/ instructions under Article 218(3) of the Constitution and need not await any provincial legislation in this regard?

1. As the constitutionality of the Act came into question, notices were issued to both the Attorney General for Pakistan and the Advocate General, Punjab under Order 27-A CPC.

Arguments.

1. It has been argued by the learned counsel for the petitioners that Section 10A of the Act cannot control or regulate the constitutional jurisdiction of this Court under Article 199, and therefore, the ouster clause, does not, in any manner abridge the constitutional jurisdiction of this Court to judicially review the order passed by the Delimitation Authority or the Delimitation Officer. Even otherwise, it is opposed to the constitutional guarantee of access to justice, which is jurisprudentially well grounded in Articles 4, 9 & 10A of the Constitution. They also argued that "delimitation" is a pivotal part of elections, as envisaged under the Constitution, and can only be carried out by the Election Commission of Pakistan, especially after Local Government Elections have morphed into constitutional elections from statutory elections, after 18th constitutional amendment. As a consequence, provisions of the Act, abridging the constitutional role of the Election Commission of Pakistan from carrying out delimitation of constituencies is unconstitutional, rendering the delimitation announced through the impugned Notification to be without lawful authority and of no legal effect.

2. Learned Additional Attorney General for Pakistan tendered appearance and at the outset frankly conceded that the constitutional jurisdiction of this Court under Article 199 of the Constitution cannot be ousted under Section 10A of the Act. He, however, added that as the Election Schedule has been announced, any interference by this Court at this stage would frustrate the elections. He submitted without any supporting jurisprudence or material that Election Commission of Pakistan, under the Constitution, has no role to play in the delimitation of the Union Councils or Municipal Committees into Wards for the purposes of elections to Local Government.

3. The learned Acting Advocate General, Punjab also conceded that the constitutional jurisdiction of this Court to judicially review governmental orders and actions is not curtailed by a sub-constitutional provision i.e., Section 10A of the Act. He, however, beseeched the Court not to interfere at this stage when the Election Schedule has been announced and the electorate is ready to go to polls. On the constitutionality of the Act regarding "delimitation" he submitted that it does not form part of the "elections" but is actually a step anterior to the elections. In response to a question from the Court, he admitted, that other than the unreported Short Order of the Division Bench in Pakistan People's Party Case,[9] there is no clear authority from our jurisprudence that holds that "delimitation" falls outside the scope of the elections or the electoral system, when seen in the context of an all-embracing electoral role of Election Commission of Pakistan under the Constitution. He also put forth another argument that it is not within the competence of the Provincial Legislature to impose obligations (of carrying out delimitation) on a constitutional entity like the Election Commission of Pakistan. He referred to the following judgments: Evacuee Trust Property Board and others v. Ahmed and others (2004 SCMR 440), Evacuee Trust Property Board v. Mst. Zakia Begum and others (1992 SCMR 1313), Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others (PLD 2008 SC 313), Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 SC 1066), Mrs. Benazir Bhutto and another v. Federation of Pakistan and another (PLD 1989 SC 66), Nawabzada Ghazanfar Ali Gul v. Government of the Punjab through Secretary, Revenue Department, Board of Revenue, Lahore and 3 others (1999 CLC 430), Khursheed Ahmed Junejo and other v. Government of Sindh and other (2005 MLD 1724), Surendrasinhaji Jorawarasinhji Jhala v. U. M. Bhatta, Chief Electoral Officer, Ahmedabad and others (AIR 1969 GUJRAT 292) and State of U. P. and others etc., v. Pradhan Sangh Kshettra Samiti and others (AIR 1995 SC 1512).

4. Realizing that our electoral jurisprudence is not fully contextualized in the post 18th constitutional amendment landscape, we invited the following amici curiae to assist the Court: M/s. Muhammad Shahzad Shaukat, Salman Akram Raja, Babar Sattar, Nasar Ahmad and Saroop Ijaz, Advocates. Except M/s. Babar Sattar and Saroop Ejaz, Advocates, who filed their submissions in writing, the others appeared before the Court and made their submissions.

5. The view expressed by the amici curiae unanimously learned in favour of the all-embracing electoral role of the Election Commission of Pakistan bringing under its constitutional ambit all stages of "election" broadly referenced in Article 222 of the Constitution. They submitted that the scope of the word "elections" can best be drawn from the constitutional role and obligation entrusted to the Election Commission of Pakistan ("ECP") under the Constitution. The constitutional electoral jurisdiction of ECP determines the length and breath of the term "election." They put in a qualification that the meaning of the word "Election" as popularly acknowledged in our jurisprudence refers to a part of "Election" which relates to polls and commences with the announcement of the Election Schedule and has been interpreted in the limited context of ROPA and Article 225 of the Constitution. They submitted that "delimitation" is the "groundswell" of elections and fell within the exclusive constitutional domain of ECP. After Local Government elections have been recognized as constitutional elections, the role of ECP fully extends to all the stages of the electoral system envisaged under the Act including preparation of electoral rolls and delimitation of constituencies as is the case with the other constitutional elections. The constitutional obligation of ECP to organize, conduct and make necessary arrangements for holding elections subsumes different stages of election as laid down under Article 222 of the Constitution. They submitted, with utmost respect, that the declaration given in Pakistan People's Party Case, regarding delimitation being anterior to election is not the correct view and does not find support from the case law relied upon in the cited case. The word "Election" has to be defined in the context of Part VIII of the Constitution and went ahead to submit that preparation of electoral rolls, delimitation of constituencies down to filing of the nomination papers, polling and announcement of the election results form part of "Election" for the purpose of defining the constitutional role of Election Commission of Pakistan. They also made submissions on the issue of delimitation in the context of democracy, political justice and constitutionalism, relying on international electoral jurisprudence.[10] In addition, they placed reliance on: Muhammad Nazir Hakim v. Bukhtiar Said Muhammad and the Controlling Authority, Montgomery (PLD 1962 (W. P.) Lahore 421), Imran Khan and others v. Election Commission of Pakistan and others (2012 SCMR 448), Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and others v. Federation of Pakistan and 2 others (PLD 2012 S.C. 681), Imran Khan and others v. Election Commission of Pakistan and others (PLD 2013 S.C. 120) and Workers' Party Pakistan through General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2013 S.C. 406).

DECISION OF THE COURT.

Ouster Clause & the Constitutional Court.

1. Section 10A of the Act states:

10A. Finality of delimitation. A court, officer or authority, shall not review or correct any delimitation of a Union Council or ward after the notification of the election schedule.

It is axiomatic and by now a judicial cliche, that sub-constitutional legislation cannot curtail or abridge the constitutional jurisdiction of this Court. Legislature, being the creature of the Constitution cannot take away the jurisdiction of a constitutional Court conferred by the Constitution. "Shortly stated, an ordinary statute or a sub-constitutional legislation is incapable of ousting, curtailing or limiting the constitutional jurisdiction of the Supreme Court or the High Courts and the words "no court" in an ouster clause in a statute do not, therefore, include the High Courts or the Supreme Court so far as their constitutional jurisdiction (e.g. under Article 199 and Article 184 of the Constitution) is concerned." [11] This well settled constitutional principle loudly resonates through our jurisprudence: Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607), Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632), Malik Muhammad Mukhtar, through Legal Heirs v. Province of Punjab through Deputy Commissioner (Collector) Bhawalpur & others (PLD 2005 LAH 251), Miss Asma Jilani v. The Government of the Punjab and another (PLD 1972 SC 139), Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26).

1. In a more common law context, it is a judicial norm, that courts jealously guard their jurisdiction. They start with a strong presumption against ouster of jurisdiction and construe the same strictly, which means "that if such a provision is reasonably capable of having two meanings, that meaning ... which preserves the ordinary jurisdiction of the court"[12] is preferred. "An ouster clause, however widely worded and whether it occurs in a Constitution or in an ordinary statute, does not save an act or order without jurisdiction (which expression compendiously describes and includes acts and orders coram non judice and mala fide) from scrutiny of the courts because the purported act or order is no act or order at all."[13]

2. Even sub-constitutional courts do not, with ease, abdicate or surrender their jurisdiction to exercise judicial power if the court is of the view that the order under challenge is illegal and outside the four corners of the law and no other alternate or special remedy has been prescribed by law. In this context it is useful to refer to the speech of Lord Reid in Anisminic:[14]

"The next argument was that, by reason of the provisions of s. 4 (4) of the Act of 1950, the courts are precluded from considering whether the commission's determination was a nullity, and, therefore, it must be treated as valid whether or not enquiry would disclose that it was a nullity. Section 4 (4) is in these terms:

"The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law."

But that would be calling the determination in question, and that is expressly prohibited by the statute. The appellants maintain that that is not the meaning of the words of this provision. They say that "determination" means a real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity. Or, putting it in another way, if one seeks to show that a determination is a nullity, one is not questioning the purported determination--one is maintaining that it does not exist as a determination. It is one thing to question a determination which does exist; it is quite another thing to say that there is nothing to be questioned. Let me illustrate the matter by supposing a single case. A statute provides that a certain order may be made by a person who holds a specified qualification or appointment, and it contains a provision, similar to s. 4 (4), that such an order made by such a person shall not be called in question in any court of law. A person aggrieved by an order alleges that it is a forgery or that the person who made the order did not hold that qualification or appointment. Does such a provision require the court to treat that order as a valid order? It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly--meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.

Statutory provisions which seek to limit the ordinary jurisdiction of the court have a long history. No case has been cited in which any other form of words limiting the jurisdiction of the court has been held to protect a nullity. If the draftsman or Parliament had intended to introduce a new kind of ouster clause so as to prevent any enquiry even whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law. Undoubtedly such a provision protects every determination which is not a nullity. But I do not think that it is necessary or even reasonable to construe the word "determination" as including everything which purports to be a determination but which is in fact no determination at all."

Lord Diplock said in A-G. v. Ryan:[15]

"It is by now well-established law that to come within the prohibition of appeal or review by an ouster clause of this type, the decision must be one which the decision-making authority, under this Act the Minister, had jurisdiction to make. If in purporting to make it he has gone outside his jurisdiction, it is ultra vires and is not a "decision" under the Act. The Supreme Court, in the exercise of its supervisory jurisdiction over inferior tribunals, which include executive authorities exercising quasi-judicial powers, may, in appropriate proceedings, either set it aside or declare it to be a nullity: Anismic Ltd. v. Foreign Compensation Commission ([1969] 1 ALL ER 208, [1969] 2 AC 147). It has long been settled law that a decision affecting legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision making authority..."

Lord Selborne, as long back as 1885 wrote in Spackman v. Plumstead District Board of Works (10 App Cas 229 at 240): "There would be no decision within the meaning of the statute if there were anything--done contrary to the essence of justice."[16] This also echoes in our jurisprudence. Reliance, with advantage is placed on Begum Syeda Azra Masood v. Begum Noshaba Moeen and others (2007 SCMR 914), Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104) and Sawan and others v. Abdullah and 2 others (PLD 1998 KAR 111).

1. For the sake of completion, even in cases of constitutional ouster clauses, the superior courts have assumed jurisdiction if the order impugned is without jurisdiction, coram non judice or malafide. A chain of judicial pronouncements reiterate this view: The State v. Zia-ur-Rehman and others (PLD 1973 SC 49), Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque (PLD 1963 SC 486), The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 SC 151), Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26), Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738), Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another (PLD 2011 SC 407) and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61), Sardar Farooq Ahmed Khan Leghari & others vs. Federation of Pakistan & others (PLD 1999 SC 57), Intesar Hussain Bhatti vs. Vice-Chancellor, University of Punjab, Lahore and others (PLD 2008 SC 313), Federation of Pakistan through Secretary Defence and others v. Abdul Basit (2012 SCMR 1229) and Rao Naeem Sarfraz v. Election Commission of Pakistan and others (PLD 2013 Lahore 675).

2. As a conclusion, the ouster clause under Section 10A of the Act does not, in the slightest, abridge or curtail the constitutional jurisdiction of this Court to judicially review the orders, notifications and the acts of the executive i.e., the Delimitation Authority and Delimitation Officer in this case. It also matters little if the ouster clause is considered to be a time specific clause, as argued by some of the respondents. Courts usually give due weightage to any administrative urgency of the Executive but this does not mean that the doors leading to courts can be shut down as this would result in curtailing and abridging the judicial power. This is opposed to independence of judiciary and the constitutional framework of separation of powers.

Ouster clause and the Election Commission of Pakistan.

1. Section 10A of the Act also does not permit any "authority" to review or correct delimitation after the announcement of the election schedule. This purportedly ousts the constitutional jurisdiction of the Election Commission of Pakistan from performing its constitutional role under Articles 140A(2), 218(3) and 219(d) of the Constitution, which is neither conceivable nor permissible. Election Commission of Pakistan, under the Constitution, can hold elections i.e., to organize, to conduct and make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law. Article 222[17] provides that no electoral law shall have the effect of taking away or abridging any of the powers of the Election Commission provided in Part VIII of the Constitution.

2. Section 10A of the Act not only attempts to completely curtail judicial power of the Constitutional Court, it also puts fetters on the exercise of the constitutional authority of the Election Commission of Pakistan. Instead of touching the constitutionality of Section 10A of the Act, the said provision can be read down. "The theory of reading down is a rule of interpretation resorted to by the Courts where a provision, read literally, seems to offend a fundamental right, or falls outside the competence of the particular legislature. In interpreting the provision of a statute the courts will presume that the legislation was intended to be inter vires and also reasonable. The rule followed is that the enactment is interpreted consistent with the presumption which imputes to the legislature an intention of limiting the direct operation of its enactment to the extent that is permissible. Legislature is presumed to be aware of its limitations and is also attributed an intention not to over-step its limits. To keep the act within the limit of its scope and not to disturb the existing law beyond what the object requires, it is construed as operative between certain persons, or in certain circumstances, or for certain purposes only, even though the language expresses no such circumstances of the field of operation. To sustain law by interpretation is the rule. The reading down of a provision of a statute puts into operation the principle that so far is reasonably possible to do so, the legislation should be construed as being within its power. It has the principal effect that where an Act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the court will construe it in a more limited sense so as to keep it within power. If certain provision of law construed in one way would make them consistent with the constitution and another interpretation would render them unconstitutional the court would lean in favour of the former construction."[18] Reliance is placed on: Messrs Chenone Stores Ltd. through Executive Director (Finance Accounts) v. Federal Board of Revenue through Chairman and 2 others (2012 PTD 1815) & Messrs Elahi Cotton Mills Ltd and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582). We, therefore, read down Section 10A of the Act and declare that the ouster clause does not in any manner curtail or abridge the jurisdiction of the Constitutional Court or the Election Commission of Pakistan.

3. We were, however, minded to examine the constitutionality of the complete ouster clause in relation to the exercise of judicial power by the sub-constitutional courts in the light of Article 10A of the Constitution and the constitutional principle of Separation of Powers, but thought it fit to leave it to an appropriate case, as this question is not central to the case in hand.

Direction to the office of the Court "not to entertain petitions..." and access to justice.

1. Learned single judge vide order dated 13-12-2013 in W.P. No. 15033/2013 directed the office not to entertain or fix writ petitions which fell within the ambit of the ouster clause. Other than the legal position that an ouster clause in a sub-constitutional legislation and does not abridge or curtail the jurisdiction of a Constitutional Court, any direction to the administrative office of the Court not to entertain a case and to shut the doors of justice without granting the petitioner an opportunity to place his grievance before a judicial forum, offends the well-enshrined principle of access to justice and is a harsh denial of the constitutional and fundamental rights of due process and fair trial (see Articles 4, 9 and 10A of the Constitution). "The right to access to the courts means that no one must be hindered either by law, administrative procedures or material resources from addressing himself or herself to a Court or Tribunal for the purpose of vindicating his or her rights."[19] Reliance is placed on Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341), Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 SC 504), Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416) and "Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445).

2. Judiciary cannot efface itself by divesting its judicial power to an administrative branch or entity. This is constitutionally grotesque and strikes at the constitutional structure of the State. A lis no matter how weak or frivolous, cannot be denied access to courts. Everyone has a right to have one's day in court. Unimpaired access to justice forms the foundational pillar of rule of law and is a loud reminder that we live and breathe in a constitutional democracy where justice, even though blind, never sleeps. The learned single judge, it appears was not properly assisted in this regard. We hold that the said order (first order) shall not be cited as a precedent.

Delimitation, Election and Election Commission of Pakistan.

1. The organic nexus between "election", "delimitation" and the "role of ECP in Local Government Elections" as laid down in our Constitution, needs to be considered in the larger context of representative democracy, political rights, right to participate in the establishment of government, right to vote, political justice, electoral equality and free & fair elections.

2. "Democracy is a rich and complex normative concept. It rests on two bases. The first is the sovereignty of the people. This sovereignty is exercised in free elections, held on a regular basis, in which the people choose their representatives, who in turn represent their views. This aspect of democracy is manifested in majority rule and in the centrality of the legislative body through which the People's representatives act. This is a formal aspect of democracy. It is of central importance, since without it the regime is not democratic..... The second aspect of democracy is reflected in the rule of values (other than the value of majority rule) that characterize democracy. The most important of these values are separation of powers, the rule of law, judicial independence, human rights, and basic principles that reflect yet other values (such as morality and justice), social objectives (such as the public peace and security), and appropriate ways of behavior (reasonableness, good faith). This aspect of democracy is the rule of democratic values. This is a substantive aspect of democracy. It too is of central importance. Without it, a regime is not democratic."[20]

3. "Democracy of course can be defined in two ways. One way envisions it as a set of substantive commitments to core value such as liberty, equality, and human dignity. The more conventional view defines it as a set of formal institutions within and through which the people govern themselves. These institutions include voting mechanisms of various kinds, ballot access requirements, territorial-based legislative districting, campaign finance laws, rules governing participation in political party activities, and other regulations that structure the "political process. Yet the substantive and formal aspects of democracy are interdependent. Liberty and equality can hardly be realized if cumbersome registration procedures or other electoral barriers make it difficult to vote. The same is true if representative institutions are unresponsive to public opinion or fail to represent significant segments of the community. Constitutionalism enters the picture when it seeks to organize these institutions and procedures in the interest of liberty, equality, and dignity."[21]

4. The constitutional fabric of political rights under our Constitution is a fine intermix of formal and substantive democracy and finds its fulcrum in the constitutional principle of "political justice." This undoubtedly rests on the fundamental assumption that there is no safe depository of ultimate power than the people themselves. The constitutional vision of "political Justice," under the Objectives Resolution is now a substantial part of our Constitution.[22] Ajmal Mian J in Nawaz Sharif case[23] held:

"In my view, the political rights and the political justice are interlinked with each other. The former encompasses the right to participate directly or indirectly in the establishment or management of the Government. These rights are delineated and demarcated in the Constitution of every country; whereas the latter caters for providing in the Constitution equal rights to engage and participate in the public affairs. It envisages that the Constitution should guarantee equal liberty and provide an efficient and honest machinery/mechanism through which people can elect their representatives in a manner which should ensure that---

(i) each vote has approximately the same weight in determining the outcome of the election;

(ii) people similarly endowed and motivated should have roughly the same chance of attaining political authority irrespective of their economic and social class;

(iii) the majority should get into power.

The Fundamental Rights contained in our Constitution referred to hereinabove provided to some extent for the Political Rights and the Political Justice. However, there is a lot of scope for improving upon and expanding the same through legislation and the judicial creativity."

1. The principle of "political Justice" flowers and reverberates as the Constitution unfolds. The right to be governed by representatives chosen by the free will of the people is ineffaceable constitutional reality. All forms of exploitation under Article 3 including electoral exploitation resulting in diluting or impairing the right to representation of a citizen in elections is abhorred by the Constitution. Right to due process under Article 4 fully covers the electoral process. Right to life and liberty under Article 9 in the political context have a range of meanings. Life of a citizen in a representative democracy cannot be envisaged without its political dimension; the ability to participate in the political life of the nation, the freedom to exercise political choice, the right to choose a political leader and elect the government of his or her choice. "Liberty means not only freedom from government coercion but also the freedom to participate in the government itself." [24] Benjamin Constant emphasized that the "Liberty of the ancients" consisted of a sharing of a nation's sovereign authority among that nation's citizens. From the citizen's perspective it meant "An active or constant participation in collective power".[25] Justice Stephen Breyer explaining his theory of "active liberty" writes: "The concept of active liberty refers to a sharing of a nation's sovereign authority among its people. Sovereignty involves the legitimacy of a governmental action. And sharing of sovereign authority suggests several kinds of connection between that legitimacy and the people."[26] Right to liberty under our Constitution includes political liberty which carries political rights like right to participation in political life of a nation, right to self determination, autonomy, civil rights, sovereignty and self government.

2. Right to dignity under Article 14 carries perhaps the most vital of fundamental rights. "Human dignity is the capacity for and the right to respect as a human being, and arises from all those aspects of the human personality that flow from human intellectual and moral capacity; which in turn separates humans from the impersonality of nature, enables them to exercise their own judgment, to have self-awareness and a sense of self-worth, to exercise self-determination, to shape themselves and nature, to develop their personalities and to strive for self-fulfillment in their lives."[27] Human dignity includes the right to demand a political democratic structure of governance where rule of law is supreme and no one is above the law. A political system, which is not chosen by the people is repressive, autocratic and tyrannical besides being antithetical to self respect, freedom and human dignity. "An essential feature of South African constitutional politics that flows from the place of dignity in our basic law is the recognition of the ability of all human beings -- through their capacity to reason - to legislate for themselves....it is our capacity for self-governance, and the fact that we are not simply slaves to our passions, that distinguishes man from beast. Our capacity for self-governance - the capacity of all human beings to reason their way to the ends that give their lives meaning – is larger what makes democracy the only acceptable secular form of political organization. For if we are capable of shaping our own ends as individuals, equal political treatment demands that we be able to shape them as citizens in a democracy. At a minimum, it means we must be able to participate in the collective decision-making process that determine the ends of our community."[28] Right to form and be a member of a political party (Article 17(2)) includes a broad sweep of political rights like the right to participate in the political life of the nation, right to contest elections, right to vote, right to one man one vote, right to have a vote that is equal in weight as that of another citizen, right to fair representation, right to electoral equality, right to freely elect a leader, right to go to polls, etc. Freedom of expression under Article 19 includes the freedom to express a political choice through a vote and through a free, neutral and transparent electoral system. Going to the ballot is the collective expression of freedom of a nation. Right to equality under Article 25 guards against electoral discrimination and ensures electoral equality. The principle of "one man one vote" gets its security and strength from the constitutional right to equality. Quaid-e-Azam in his Presidential address to the Constituent Assembly[29] said: "If you change your past and work together in a spirit that every one of you, no matter to what community he belongs, no matter what relations he has had with you in the past, no matter what is his colour, caste or creed, is first, second, and last a citizen of this State with equal rights, privileges and obligations, there will be no end to the progress you will make."[30] `political Justice' blossoms under the shade of these fundamental freedoms.

3. Under Articles 32, 37(i) and 38 the Constitution provides that the local government is the third tier of political structure with the objective to decentralize the Government administration so as to facilitate expeditious disposal of the business to meet the convenience and requirement of the public. The political vision is to provide basic necessities of life, such as food, clothing, housing, education and medical relief to all citizens. To reduce disparity in the income and earning of individuals, to provide citizens facilities for work and adequate livelihood, to secure the well being of people by raising their standards of living by preventing concentration of wealth and means of production in the hands of the few, to the detriment of general interest are the political aspirations under our Constitution.

4. All these political rights stand subsumed in the most rudimentary yet foundational right

5. the right to vote. From this constitutional enfranchisement flows the right to express political choice in free and fair elections, right to elect a representative of one's choice, the right to an undiluted vote, the right to electoral equality, the right to have a vote equal in weight, value and strength as of another citizen, the right to have fair and equitable representation. The principle of "one man one vote"[31] is therefore weaved deep into the political fabric of our Constitution and has to be guarded at every stage of the electoral process and more importantly at the time of delimitation.

The importance of the right to vote.

1. In a constitutional democracy, a vote is a symbol of political dignity and freedom of a citizen. It embodies freedom of choice, expression, equality and the license to participate in the political life of a nation and the right to establish self-government. Life of a citizen in a representative democracy demands a life of equal participation in the establishment of a democratic state. Words of Saad Saood Jan J in Nawaz Sharif Case[32] are instructive: "There seems little doubt that the paramount consideration before the Constitution-makers was that no section of the citizenry no matter how small it might be, should be deprived of equal participation in the national life and no one should feel that he has not had a fair deal." This freedom of expression and participation is actualized through a vote. The sanctity, weight and status of a vote, therefore, become central to any electoral process. Justice Sachs notes in August v. Electoral Commission case:[33] "The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whosoever we are, whether rich or poor, exalted or disgraced, we all belong to the same...nation; that our destines are intertwined in a single interactive polity." "Voting rights lie at the root of parliamentary democracy. Indeed many would regard them as a basic human right."[34]

2. Right to vote is recognized in international covenants and is a constitutional right in many countries. Under Article 21 of the Universal Declaration of Human Rights, 1948 everyone has the right to take part in the government of his country, directly or through freely chosen representatives and the will of the people is the basis of the authority of government. This will is expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Article 25 of the International Covenant on Civil and Political Rights, 1966 provides that every citizen shall have the right and the opportunity.....to take part in the conduct of public affairs, directly or through freely chosen representatives and to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors. Under Declaration on Criteria for Free and Fair Elections[35] in any State, the authority of the government can only derive from the will of the people as expressed in genuine, free and fair elections held at regular intervals on the basis of universal, equal and secret suffrage. Every adult citizen has the right to vote in elections, on a non-discriminatory basis. No eligible citizen shall be denied the right to vote or disqualified from registration as a voter, otherwise than in accordance with objectively verifiable criteria prescribed by law, and provided that such measures are consistent with the State's obligations under international law. Every individual who is denied the right to vote or to be registered as a voter shall be entitled to appeal to a jurisdiction competent to review such decisions and to correct errors promptly and effectively. Every voter is entitled to exercise his or her right equally with others and to have his or her vote accorded equivalent weight to that of others. The right to vote in secret is absolute and shall not be restricted in any manner whatsoever. Under Article 5 (c) of the International Convention on the Elimination of all forms of Racial Discrimination, 1966, political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service.

3. Right to vote has been recognized by various constitutions of the World. Constitution of the Republic of South Africa, 1996 provides under Chapter 1 (Section 1) that the Republic of South Africa is one, sovereign, democratic state founded on values including universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness. Chapter 2[36] provides that every adult citizen has the right to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret and to stand for public office and, if elected, to hold office. Section 41 of The Commonwealth of Australia Constitution Act, 1990, provides that no adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth. Under the Canadian Charter of Rights and Freedoms (Section 3) of the Constitution of Canada (Constitution Act, 1982), states that every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. Likewise Article 15 of the Constitution of Japan (1946) provides that the people have the inalienable right to choose their public officials and to dismiss them. All public officials are servants of the whole community and not of any group thereof. Universal adult suffrage is guaranteed with regard to the election of public officials. In all elections, secrecy of the ballot shall not be violated. A voter shall not be answerable, publicly or privately, for the choice he has made.

4. "Parties are charged with the primary responsibility of organizing citizens into political groups for electoral purposes. In the field of elections and voting, formal equality includes the principle of formal equal opportunity, namely, the opportunity of political parties and voter organizations to compete for electoral support. This right of equal opportunity derives from the constitutional status of political parties, the freedom to form political parties, and the principle of a multiparty system which is associated with the concept of a free democracy. The principle of equal opportunity governs the election proper as well as the campaign. Democracy cannot function--as a matter of principle - if the parties are unable to enter an election campaign under the same legal circumstances. In regulating the process of forming the political will of the people, the legislature operates under strict limits. It may not undermine the equal opportunity of parties or voter associations. Differential treatment of parties and voter associations is constitutionally prohibited--The very purpose of proportional representation is to have government realistically reflect the political will of the electorate."[37] As Professor Dworkin wrote in the Bill of Rights for Britain: "True democracy is not just statistical democracy, in which anything a majority or plurality wants is legitimate for that reason, but communal democracy, in which majority decision is legitimate only if it is a majority within a community of equals. That means not only that everyone must be allowed to participate in politics as an equal, through the vote and through freedom of speech and protest, but that political decisions must treat everyone with equal concern and respect, that each individual person must be guaranteed fundamental civil and political rights no combination of other citizens can take away, no matter how numerous they are or how much they despise his or her race or morals or way of life."[38]

5. Professor Tribe writes: "Voting rights subsume such distinct concerns as the citizen's opportunity to cast a vote, the community's chance to be represented within a larger polity in proportion to its population, the racial group's ability to prevent the purposeful dilution of its voting power, the candidate's capacity to gain a place on the ballot, and the constituent's chance to contribute to a chosen candidate. These distinct interests, however, spring from a common root. They share a concern with the election process that is both a source and a product.... of representative government. At their core, all voting-related rights are rights to participate in this process.....Given their essential character as parts of the election process, rights relating to the franchise stand poised between procedural due process, with its guarantee that an individual may participate in the application of general rules to that individual's particular situation, and the first amendment, with its guarantee that an individual be allowed to participate in the most general communicative processes that determine the contours of our social and political thought. At the same time, election-related rights display the special feature that the equality with which they are made available, rather than the fact of their availability or absence, ordinarily proves decisive." [39] The US Supreme Court in Wesberry v. Sanders[40] testified to the fundamental character of the right to vote..... no right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights, even the most basic, are illusory if the right to vote is undermined." According to Laurence E. Tribe[41] the opinion of Justice Douglas, who authored the majority opinion, "implied that there existed a personal right to cast a vote that was a mathematical equivalent of the vote cast by any other member of the same constituency." In the same case US Supreme Court reiterated that "one man's vote.....is to be worth as much as another's," and thus in a sense also created a collective right to have legislative representatives apportioned according to population. Stewart J. in Gary v. Sanders[42] put the proposition succinctly in a concurring opinion: "Within a given constituency, there can be room for but a single constitutional rule--one voter, one vote." In Reynolds v. Simms[43] the court insisted that equal numbers of voters should elect equal numbers of representatives. It further held that: "An individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in another part of the State.". In Davis v. Bandemer,[44] US Supreme Court held: "Unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole."

6. "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restriction on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise..... and, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the

disfavored areas had not been effectively diluted. It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State's voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once. And it is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of citizens in one part of the State would be multiplied by two, five, or 10, while the votes of persons in another area would be counted only at face value, could be constitutionally sustainable." [45] In Wesberry et al v. Sanders, Governor of Georgia, et al[46] Supreme Court of United States held:

"We do not believe that the Framers of the Constitution intended to permit the same vote-diluting discrimination to be accomplished through the device of districts containing widely varied numbers of inhabitants. To say that a vote is worth more in one district than in another would not only run counter to our fundamental ideas of democratic government, it would cast aside the principle of a House of Representatives elected "by the People," a principle tenaciously fought for and established at the Constitutional Convention. The history of the Constitution, particularly that part of it relating to the adoption of Art. 1 & 2, reveals that those who framed the Constitution meant that, no matter what the mechanics of an election, whether statewide or by districts, it was population which was to be the basis of the House of Representatives."

In State Of Madhya Pradesh & others v. Devilal,[47] Supreme Court of India held:

The whole purpose of delimitation of a block into constituencies under sub-s.(1) of s. 106 of the Act is to ensure that every citizen should get a fair representation to the Gram Panchayat and in turn to the Janapada Panchayat and the Zila Panchayat. The result of any election under a majority system depends in fact not only on the way people vote but on the way their votes are distributed among the constituencies......

In Association of Resident of Mhow (ROM) v. Delimitation Commission of India[48] the Supreme Court of India observed:

"The periodic readjustment of the LokSabha and Assembly Constituencies is mandatory in representative systems where single member constituencies are used for electing political representatives. The electoral districts are done on the basis of the last published census figure that they are relatively equal in population. Electoral districts that vary significantly in population - a condition called malapportionment - violate a central tenet of democracy that all the votes cast must be of equal weight."

1. The principle of "one man one vote" flows from the concept of "political justice."[49] In our jurisprudence the constitutional right to vote has been recognized in Imran Khan and others v. Election Commission of Pakistan and others (PLD 2013 S.C. 120), Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and others v. Federation of Pakistan and 2 others (PLD 2012 S.C. 681), M.D. Tahir, Advocate v. Federal Government through Cabinet Division, Islamabad and another (2003 CLC 389) and Ghulam Abbas v. The Additional Commissioner and Election Tribunal Khairpur Mirs and 3 others (PLD 1965 (W.P.) KAR 625). The protection to right to vote has been expanded recently by the august Supreme Court of Pakistan by holding that "An accurate Electoral Roll is a sine qua non for the holding of a free, fair and transparent elections, which is not only the command of the Constitution but also a Fundamental Right of the citizens....."[50]

2. The growing electoral jurisprudence shows that the right to vote actually translates into a more potent and substantial right to equal voting power. The electoral process other than ensuring fair and free polls, is to ensure that the weight of the vote of a citizen is not diluted or discriminated prior to the polls during delimitation of constituencies. Delimitation is a vital and indispensable milestone in the electoral process as it defines and fashions the strength and weight of a vote. Fair and transparent delimitation of constituencies is pivotal for holding honest, fair and just elections. The central focus of any fair and just electoral system is to ensure that the right to vote is properly guarded against the scourge of vote dilution or discrimination during the process of delimitation. Any electoral system must, therefore, be designed to protect the right to vote. Any step or stage in the process which has a bearing on the right to vote is an indispensable part of "Election" or electoral process.

Meaning of Delimitation.

1. The symbiotic relationship between right to vote and delimitation requires us to examine the meaning and process of delimitation and the nature and character of the authority which is to carry out delimitation. Delimitation, means the demarcation of the boundaries of an electoral constituency in order to ensure fair, just and proportional representation of the people in the elections. The basic object of delimitation is to secure, so far as practicable, equal representation for equal segments of the population in legislative bodies. "Apportionment" or delimitation or "redistricting" has the "aim of equalizing the population (or electorate) per seat, in accordance with the principle of "one person, one vote, one value.'[51] This is usually done with regard to stated constraints of administrative convenience, contiguity, geographical, and communication factors; and unstated influences of party-political advantage. In other words, the delimitation aims at ensuring the observance of the basic tenet of democracy; "one man, one vote'. The Principles of delimitation under the Delimitation of Constituencies Act, 1974[52] include having regard to distribution of population in geographically compact areas, existing boundaries of administrative units, facilities of communication and public convenience and other cogent factors to ensure homogeneity in the creation of constituencies. The other equally important aim of delimitation is to divide the geographic areas into territorial constituencies so fairly that no party or candidate may legitimately have a grievance that there has been "gerrymandering"[53] of constituencies in favour of or against the interests of any particular party or candidate. Suggesting that the right to cast a ballot is meaningless if that ballot is undervalued relative to a ballot cast by a voter in a less populated district. Gerrymandering is "drawing of district boundaries so as to favour one's own chances in future elections......strategies for gerrymandering have been characterized as "stacking", packing", and cracking", each of which seeks to minimize the influence of those likely to vote for opponents." "stacking" occurs when boundaries are drawn so opponents are grouped in constituencies where they are a minority; "packing" when opponents are concentrated in a small number of constituencies; and "cracking" when opponents are divided between a large number of constituencies."[54]

2. The process of delimitation has to ensure that the voting equality is not disturbed and the vote of one citizen must in no manner be less than the vote of another citizen. Other than population parity, geographical compactness, the homogeneity of interest of the community need to be factored in. Setting the parameters of delimitation Chief Justice Warren held in Reynolds v. Sims:[55]

"Legislatures represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interest. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is the backbone of our political system."

1. Delimitation is not a mere drawing of boundaries with a stroke of pen. It is a judicious exercise of delineating electoral areas, vigilantly guarding against any possible fear of vote dilution, disenfranchisement or corrupt practices. Unfair or partisan delineation can lead to skewed results, tarnishing electoral integrity, making a mockery of the election and turning the constitutional principle of "political Justice" on its head. The foundations or the rules of the game for a fair and just election are laid down at the time of delimitation of the constituencies. It is here that the weight and value of the vote is recognized and firmly established. The event that follows is merely the conduct of elections i.e., when electorate goes to polls, to actualize the principle of "one man one vote" firmly established during the process of delimitation of the constituencies.

2. It is commonsensical that "delimitation" must be a neutral exercise, conducted by a neutral body. Any partisan political intervention and drawing up of political constituencies under the dictates of the political party in power is bound to lead to gerrymandering and unjust political windfall, tarnishing the sanctity of elections and crippling the faith of an ordinary man in the system of democracy. This is precisely the reason that petitioners before us have complained of partisan delimitation under the fiat of the political government in power. The government in power according to the allegations leveled before us have tried to exploit the electoral independence and the right to vote of the people by gerrymandering and re-mapping of the Union Councils and Municipal Committees into Wards, in a manner that best suited their political interests. The veracity of these allegations need not detain us. Our role is to ensure that the constitutional mandate is obeyed and the electoral system envisaged by the Constitution is enforced. Professor Tribe puts in a word of caution: "Democracy," he writes, "envisions rule by successive temporary majorities. The capacity to displace incumbents in favour of the representatives of a recently coalesced majority is, therefore, an essential attribute of the election system in a democratic republic. Consequently, both citizens and courts should be chary of efforts by government officials to control the very electoral system which is the primary check on their power. Few prospects are so antithetical to the notion of rule by the people as that of a temporary majority entrenching itself by cleverly manipulating the system through which the voters, in theory, can register their dissatisfaction by choosing new leadership."

3. Having established the link between delimitation, election and right to vote. The neutrality of election or delimitation or boundary commission is reinforced by global electoral literature. Independence and neutrality of the election authority for the purposes of delimitation is firmly established in New Zealand, Australia, U.K, USA, Bhutan and India as given below. This reinforces the importance of neutral and independent delimitation in the electoral process.

Meaning of "Election" under the Constitution.

1. The expanse of the term "Election" can be easily gauged by the constitutional role entrusted to the ECP under Part VIII of the Constitution and, in particular, Articles 140A(2), 218(3), 219(d), 220 and 222 of the Constitution. Article 140A(2) provides that the ECP shall hold elections to the local governments. Article 218(3) provides that it shall be the duty of ECP to organize, conduct and make such necessary arrangements for holding honest, just and fair elections. Without prejudice to the constitutional powers of ECP, Article 222 provides the components of the election process which include: delimitation of constituencies, preparation of electoral rolls, conduct of elections and election petitions, matters relating to corrupt practices and other offences. Electoral laws for National and Provincial Assemblies deal with these components separately under the Electoral Rolls Act, 1974, Delimitation of Constituencies Act, 1974 and Representation of People Act, 1974. These electoral laws cover different stages of "Election" as mandated by Article 222.

2. The duty of ECP to hold election means: to organize, to conduct and to make arrangements for election. These words fashion the scope and extent of the term "Election" or "Electoral System". It is, therefore, important to see the import of these words. Organize means: "to form into a whole consisting of interdependent or coordinated parts, especially for united action or to give an organic structure[56] "to systematize[57] "give orderly structure; bring into working order.[58] Conduct means: "execution, direction or management.[59] "management, guidance and overall supervision.[60] Arrangements means: "preparatory measures or preparations."[61] Hence, to organize read with necessary arrangements means to systematize or give an organic structure to election. The preparation of the electoral rolls and the delimitation of constituencies fall within the organizing stage of the election. To conduct election is more to do with the execution or the management part of the elections. Hence, this part begins with the announcement of the election schedule, leading to, filing of the nomination papers, dealing with objections, electorate going to polls and the final announcement of results. Hold or Holding means: "to have the ownership of"[62] "to keep or maintain a grasp on something".[63] In State of Gujrat v Jamnadas[64] Supreme Court of India defined the term "hold Elections" to mean: "Its wide connotation will include delimitation of constituencies, the compilation of electoral rolls, etc which are a necessary preliminary to the actual conduct of elections. In the restricted sense, this phrase would cover only the actual holding of the elections." [65] The process of elections, therefore, has two fundamental parts or components. The substantive organizational part including the preparation of the electoral list and the process of delimitation of constituencies and the managerial or supervisory part of conducting the elections, where candidates come out to contest and the electorate goes to polls. When both the parts are executed in tandem[66] it is said that the elections are held in a country. Holding elections, in an umbrella-like manner subsumes all the components of the electoral process especially the acts of organizing and conducting elections. Constitutional role and obligation of the ECP clearly defines the scope and meaning of the word "Election" - which is an amalgam of all the steps starting from preparation of the electoral rolls, leading to delimitation followed by the filing of the nomination papers, electoral public participation, polling of votes and finally concluded with the announcement of the results. Like a continuous assembly line, one component follows the other providing a complete electoral system.

3. Another distinction between the two parts of the elections is that the organizational part of the elections is a party neutral systemic exercise as it provides for preparation of electoral rolls and demarcation of the constituencies, while the second part of the elections supervises and conducts the elections. The latter takes an adversarial political colour as candidates of opposing political parties jump into the electoral ring. The distinction between the two parts comes into sharp focus when we see that the remedy of an election petition before the Election Tribunal is provided at the end of the second part (i.e., conduct of elections) under ROPA and the Act, reinforced and protected under Article 225 of the Constitution. This post election dispute resolution mechanism is restricted to disputes arising from the managerial and supervisory part of the elections i.e., the conduct of elections. No such judicial forum is provided for attending to the disputes pertaining to electoral rolls or delimitation of constituencies in the first part of the elections or electoral process. Historically, in the past, such like disputes have been resolved by an independent election authority (mostly ECP) with the option to the aggrieved party to invoke the constitutional jurisdiction of this Court but no independent judicial forum is provided for the redressal of grievance arising out of delimitation of constituencies except of course within the administrative tiers of the Election Commission of Pakistan.

4. As a conclusion, to organize, conduct and make arrangements for holding elections covers the entire electoral process and is synonymously referred to as "Election" for the purposes of ECP and the Constitution. H. F. Rawlings writes: that "any code of electoral law includes a number of essential sections of almost equal importance; these deal with the qualifications and disqualifications of voters, the division of the electorate into constituencies, the prevention of corruption and intimidation during the campaign, the judicial and administrative provisions for seeing that the law is observed. Each of these sections is meaningless in isolation from the others. A very wide and equal suffrage loses its value if political bosses are able to gerrymander constituencies so as to suit their own interests; there is no point in having an elaborate system of proportional representation if the electors are all driven in one direction by a preponderance of bribes and threats; legal provisions mean nothing if enforcement of the law is left wholly in the hands of those who profit by breaking it. This is why it is right to speak of "The electoral system'. Procedure for elections is systematic in that its parts are inter-dependent; it is impossible to advance on one "front" without regard to others."[67]

Role of Election Commission of Pakistan in Local Government System.

1. We now revert to the constitutional provisions dealing with local government elections. An important constitutional milestone is the 18th constitutional amendment, whereafter, elections to the local government have transformed into constitutional elections from statutory elections. "Elections" by the ECP under the Constitution now cater to all the three political structures: National, Provincial and Local Governments. The neutral constitutional body called the Election Commission of Pakistan regulates the entire constitutional electoral space. According to Oxford Dictionary of Politics an election commission is "a non-partisan body which determines election procedures and district boundaries and oversees the conduct of elections."[68]

2. ECP is neutral and independent as it consists of the Commissioner, who is or has been a judge of the Supreme Court of Pakistan or has been a Judge of High Court[69] and four members each of whom has been a judge of the High Court from each Province.[70] Collective reading of Articles 140A, 218, 219, 220, 221 and 222 of the Constitution brings out the importance of the constitutional role of ECP. Article 140A(2) provides that elections to the local government shall be "held" by the Election Commission of Pakistan. Article 219(d) provides that ECP shall be charged with the duty of "holding" elections to the local governments. Article 220 provides that it shall be the duty of all executive authorities in the Federation and in the Province to assist the Commissioner and the Election Commission in the discharge of his or their functions. Hence, issue of capacity of ECP to conduct delimitation of constituencies as argued by the respondents is a non-issue. Article 222 provides for nature and scope of electoral laws. Holding of elections under Article 140A(2) mandates ECP to perform its constitutional obligation under Article 218(3) of the Constitution. Holding, therefore, means organizing, conducting and making arrangements for elections and spans over the entire electoral process.

3. The constitutional nexus between the powers of the Provincial Legislature, ECP, the Local Government System and elections to the local governments, requires elaboration. This also addresses the argument made by the Acting Advocate General, Punjab that the Provincial Legislature cannot impose any obligation (addressed in the context of delimitation) on a constitutional entity like the ECP. Constitution under Article 140A has empowered the Provincial Legislature to provide for a Local Government System whereby political, financial and administrative responsibility and authority is devolved to the elected representative of the local governments. This power is, of course, supplemental to the residuary power enjoyed by the Provincial Legislature under the Constitution. Central to the Local Government System and intrinsic to any political devolution is the process of free and fair elections. Article 140A(2) further provides that elections to the local governments shall be held by the ECP. This sub-Article imposes a constitutional obligation on the Provincial Legislature to carve out a role for ECP in the matter of election to the local governments. Article 140A, when read compositely, provides that provincial legislature while providing for Local Government System shall entrust the elections to the local governments in the hands of the ECP i.e., leaving ECP to organize, conduct and make necessary arrangements to hold honest, just and fair elections in accordance with law and to guard against corrupt practices. This obligation has been imposed on the Provincial Legislature by the Constitution and the Province cannot shy away from this constitutional fiat while making the law for the Local Government System. The constitutional adjustment of the role and obligation of ECP, as provided under Part VIII of the Constitution, has to be fully respected by the Provincial Legislature under Article 140A. Therefore, the argument of the Acting Advocate General Punjab carries no force.

4. Harmonious reading of Article 140A and Article 222 (which reads "subject to the Constitution") empowers the Provincial Legislature to legislate under Article 222. This further limits the Provincial Legislature in providing the stages of the electoral process, in particular, that of delimitation, which under Article 222(b) has to be conducted by the ECP. Even otherwise, the role and obligations of ECP under the electoral laws cannot be altered, abridged or taken away by the Provincial Legislature. Punjab Local Government Act, 2013 is an outcome of these constitutional powers vested in the Provincial Legislature alongwith its residuary powers. However, the delimitation of constituencies which is also a part of the electoral process, has been entrusted in the partisan hands of the ruling government, which to say the least, is frightfully unconstitutional.

5. The importance of electoral process is perhaps more critical in a Local Government System than in the elections to the National or Provincial Assemblies. This is because local government structure is primarily geared to provide services to its immediate local community as opposed to legislation which is the primary function of the National and Provincial Assemblies.

6. "Local Government System" has not been defined. It is, therefore, useful to shed some light on the meaning of Local Government System. "The existence of local government has always been defended on the basis that it is a crucial aspect of the process of democratization and intensification of mass participation in the decision-making process. No political system is considered complete and democratic if it does not have a system of local government. Local government serves a two-fold purpose. The first purpose is the administrative purpose of supplying goods and services; the other purpose is to represent and involve citizens in determining specific local public needs and how these local needs can be met. Local representative government is a process that spans and connects representation and administration at local levels within local government structures ...... Local government is that part of the whole government of a nation or state which is administered by authorities subordinate to the state authority, but elected independently of control by the state authority, by qualified persons resident, or having property in certain localities, which localities have been formed by communities having common interests and common history. Local government is the third level of government deliberately created to bring government to the grass-roots population and gives the grass-roots population a sense of involvement in the political processes that control their daily lives. Democracy denotes a political system in which the eligible people participate actively not only in determining who governs them, but also in shaping the policy output of their government. A number of reasons have been advanced as to why a system of local government is essential. These reasons are that it is:

(a) training ground for mass political education;

(b) training ground for political leadership; and

(c) that it facilitates government accountability.

The aforementioned forms a crucial part of the need for the existence of local government.[71]

1. The Punjab Local Government Act, 2013 provides various components of local government system including "elections."[72] The preamble describes the Act to establish an elected Local Government System to devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments as envisaged under Article 140A of the Constitution. The preamble further states that the Act promotes good governance and effective delivery of services and transparent decision-making through institutionalized participation of the people at the local level. Section 2(v) defines "Local government" to mean a Union Council, a Municipal Committee, a Municipal Corporation, the Metropolitan Corporation, a District Council or an Authority (which under Section 2(a) means a District Education Authority and District Health Authority). Seats in a Union Council and the Municipal Committee are filled through direct election from the electoral area in the manner specified in Sections 13 and 15 of the Act while the seats in the other local governments are filled indirectly through the directly elected Chairmen of the Union Councils. Union Council is one ward for the direct election of the Chairman and Vice-Chairman as joint candidates and also for one reserved seat each for a peasant, a youth member and one non-Muslim member. Union Council is divided into two wards (consisting adjoining three wards) for the two reserved seats for women, while the Union Council is divided into six wards for the election to six general seats. Similarly, Municipal Committee is divided into Wards for direct election of general members determined on the basis of population of a Municipal Committee but which shall not be less than eleven members or more than fifty members.[73] The delimitation for the purposes of direct elections under the local government system is the delimitation of the Union Council into one, two and six wards and the delimitation of the Municipal Committee into as many wards as specified by the Government in terms of the First Schedule. The Act provides for Local Government Elections in Chapter V (Sections 18 to 63) while "delimitation" for the purposes of elections is provided separately under sections 8 to 10 of the Act (reproduced in Table B for reference). ECP plays no role in delimiting the Union Councils or the Municipal Committees into Wards. Section 19 provides that the ECP shall conduct the local government elections and for this notify an election schedule. Once again the role of the ECP has been restricted to the conduct of elections, abridging the overarching and all-embracing role of ECP to organize, conduct and make arrangements for holding the elections in violation of Article 218(3) of the Constitution. Under Section 21 of the Act, electoral rolls are to be prepared by the ECP and the Act further provides for the appointment of the election staff under the control of ECP. An overview of the Act shows that the constitutional role of ECP has been weaved into all the main electoral stages of the elections to the Local Government except "delimitation." Further, Section 19 of the Act describes the role of ECP to be limited to conduct of elections while Section 21, itself allows ECP to prepare the electoral rolls covering the organizational part of the election, which precedes conduct of elections. There is, therefore, a disconnect between the Constitution and the provisions of the Act resulting in curtailing the constitutional role and obligations of ECP, which is not permissible.

2. A comparative historical analysis of the previous constitutions, electoral laws and the local government laws (see Table C) reveal the following:

(a) Earlier Local Government Elections have enjoyed a sub-constitutional status. The tipping point comes after 18th Constitutional Amendment (2010) when Local Government Elections attain the status of constitutional elections and are vertically aligned with the other two political structures of the State. This important constitutional development centre-stages the role of ECP in the local government elections.

(b) Election Commission of Pakistan is the apex, independent and neutral constitutional authority to hold, organize and conduct elections and no sub-constitutional law, in particular, electoral law, can takeaway or abridge this constitutional power vested in the Election Commission of Pakistan.

(c) "delimitation" of constituencies for the purposes of local government elections has by and large been conducted by a separate and neutral[74] authority. Post 18th Constitutional Amendment, ECP has assumed this role as elections to the local government have moved up from the sub-constitutional to a constitutional platform.

(d) "delimitation" is a pivotal and a substantive part of elections.

(e) No appeal or remedy is provided against the order of the delimitation authority and mostly such decisions are considered to be final.

(f) The constitutional bar on challenging an election dispute other than through an election petition is limited to the conduct of elections. The scope is restricted to that portion of election that commences after the announcement of the election schedule and ends with the announcement of results. The scope of election petitions does not permit to challenge any dispute arising out of the preparation of the electoral rolls or delimitation of the constituencies. In fact in the Constitution of 1956 [(Article 142(5)] there was a constitutional bar to challenge the order of the delimitation authority.

Revisiting our electoral jurisprudence.

1. The above discussion necessitates that we revisit our electoral jurisprudence to contextualize and qualify the extent of the popular judicial impression that "Election" or "election process" commences when the "election schedule" is announced and ends with the announcement of the election results. Deeper examination of the popular case law, listed below, in the light of the above discussion, reveals that the word "election" has come under discussion in these cases while considering the second part of the elections i.e., conduct of elections. These cases arise out of the interpretation of the word "Election" under the bar contained in Article 225 of the Constitution read with the ROPA or similar constitutional bar in the previous constitutions read with a similar electoral law dealing with conduct of elections only. ROPA deals with conduct of elections and does not cover "delimitation" or the "preparation of the electoral rolls." The part of the election process covered under ROPA is post delimitation and primarily begins after the announcement of the election schedule. It is important to reiterate that preparation of electoral rolls and delimitation are governed under separate laws i.e., The Electoral Rolls Act, 1974 and The Delimitation of Constituencies Act, 1974. Jurisprudence has thus evolved in a limited context. The cases deal with the conduct of elections as opposed to its preparatory arrangements and organization. It is axiomatic that once the election schedule has been announced it is best not to frustrate or detail the democratic process on the basis of an inter-party dispute between two opposing political candidates which can best be resolved after the elections through an election petition filed before the Election Tribunal.[75] This argument is further buttressed by another electoral principle that electorate should not be left unrepresented as courts don't lean in favour of disenfranchisement. No such post-election remedy is available in cases of preparation of electoral rolls or delimitation. The scope of election petitions under ROPA and the Act is limited to the conduct of elections. The election petitions under both the laws clearly provide a remedy to a candidate (or to any person under Section 76-A of ROPA) to agitate grounds before the Election Tribunal for the disenfranchisement of the returned candidate and at best election of the disputed constituency can be rendered void by the Tribunal. The allegations of corrupt or illegal practice, under both the laws, are also restricted to the election of the returned candidate. Election Petition, therefore, is not designed to address the question of electoral rolls or delimitation which are not candidate specific (as there is no candidate in the field at the time) but relate to entire electorate and any dispute in this regard has to be first decided before the election schedule is announced.

2. The wisdom is apparent because delimitation of constituencies pertains to the layout of the electoral landscape on which the political parties are to contest elections through their candidates. Delimitation, therefore, covers the general rules of the game, before the candidates representing political parties jump into the ring. Any dispute related to Delimitation, therefore, cannot be remedied through an election petition before the Election Tribunal.

3. None of the judgments discuss the scope of "election" in the context of electoral rolls or delimitation or in the constitutional context of to organize and make necessary arrangements for holding fair elections.[76] These cases are set in post delimitation electoral period and the disputes are restricted to "conduct of elections" arising after the announcement of the election schedule. Amirzada Khan case[77] is regarding Presidential Elections and is restricted to the issue of irregular filing of nomination papers, hence pertains to conduct of elections post announcement of the election schedule. In Haji Muhammad Afzal case[78] the order of the returning officer is under challenge and pertains to the issue of retirement of a candidate from elections. It is in this context that the bar contained in Article 171 of the Constitution of 1962 (Article 225 of the existing Constitution) read with Section 52 of the National and Provincial Assemblies (Election) Act, 1964 came under discussion. Once again the case pertains to conduct of elections. In the seminal Javaid Hashmi's case[79] the august Supreme Court of Pakistan sets out to examine the meaning of the word "Election" in the limited context of Article 218(3), 225 and under the provisions of ROPA. Muhammad Haleem CJ speaking for Supreme Court of Pakistan observed: "This necessitates the consideration of the meaning of the word "Election" in Article 225.......While considering the meaning of the word "Election" the expression "conduct the election" in sub-Article (3) of Article 218 should also be taken into consideration....... In a nutshell it is a self-contained enactment [ROPA] and the various steps taken in the process of the completion of the election as provided by the enactment are comprehended within the meaning of the word "Election" and if it be the case whether an action falls within its ambit or not it can be tested on this touchstone." In Rana Aftab Ahmed Khan's case[80] the august Court once again examined the word "Election" in the context of Representation of People Act, 1976 and were not required to examine it in the broader context of the constitutional role of ECP under Article 218(3) or in the context of electoral laws under Article 222 of the Constitution.

4. A.K.Brohi, in the Fundamental Law of Pakistan while explaining Article 140 of the late 1956 Constitution (similar to Article 218(3) of the present Constitution) writes: "The expression "organizing and conducting elections" would seem to include the taking of all steps that might be deemed necessary for securing the return of the candidates from constituencies."[81] This thought is echoed in a full bench judgment of this Court reported as Muhammad Nazir Hakim v. Bukhtiar Said Muhammad and the Controlling Authority, Montgomery (PLD 1962 Lahore 421).[82] This case pertained to the elections to the Union Committee, Pakpattan under the Basic Democracies Order, 1959 wherein challenge was thrown to the election of the respondent through a writ of quo warranto on the ground that he did not possess the qualification of being 25 years old on the 1st of January preceding the elections. The only question before the court was to interpret the meaning of "election." M.R. Kayani J speaking for the court held:

"7. But while we agree that the term "Election" stands for the entire process which leads step by step to a certain result, we find it difficult to hold that the age of a candidate should be determined with reference to the final stage in the process. If election is a single process from the date of publication of the electoral roll to the date on which the result of the election is declared, like a chain with a number of links, then a date "preceding the election" will be a date preceding the first link in the chain and not a date preceding the last link; for a date preceding the last link would be a date preceding the declaration of the result, and all other links in the chain of election would "precede" such date. In that case we would be defining the term "Election" as "the publication of the result of the election".

1. Much emphasis was placed on Surendrasinhaji Jorawarasinhji Jhala v. U. M. Bhatta, Chief Electoral Officer, Ahmedabad and others (AIR 1969 GUJRAT 292) by the learned Acting Advocate General to underline that delimitation is a step anterior to the elections. Reliance with equal emphasis was also placed on the order of the Pakistan Peoples' Party case recently decided by a Division Bench of this Court. In Surendrasinhaji Jorawarasinhji Jhala case the grievance was that the name of the petitioner did not appear in the electoral roll. The order of the Chief Electoral Commissioner was challenged in constitutional jurisdiction under Article 226 of the Indian Constitution (similar to our Article 199) and the question arose whether the petition was barred under Article 329(b) of the Constitution (somewhat similar to our Article 225). Discussing the scope of Article 329(b) it was held

that the word "Election" does not entail the entire electoral process but pertains to the conduct of elections and the issue of electoral rolls which precedes the conduct of elections cannot be barred under Article 329(b). The judgment separates the different stages of election and holds that preparation of electoral rolls is different from the component of conduct of elections (and not "elections"). Bhagwati J while discussing the scope of Article 329(b) of the Indian Constitution observed: "This Article makes a distinction between the preparation of the electoral rolls and the conduct of elections and regards the two as separate matters. The preparation of the electoral roll is obviously a stage anterior to the conduct of the election and it does not form part of the process of election.[83] The process of election referred to in this case is limited to conduct of elections and should not be construed in the expansive electoral context under our Constitution. This case primarily supports the line of reasoning in this judgment that matters of organizational nature like preparation of electoral rolls and delimitation of constituencies do not form part of the conduct of elections which specifically deals with the events that unfold after the announcement of the election schedule. The term "Election" cannot be restricted by partially reading Article 218(3) of the Constitution but must be viewed in the light of the high constitutional role and obligation vested in ECP under the Constitution.

1. As far as Pakistan Peoples' Party case is concerned, we have noticed that it is a short Order because detailed reasons have yet to be released by the learned Division Bench as per paragraph 13 of the said Order. We, therefore, do not feel the necessity to further dilate upon it.

2. Analysis of the above electoral jurisprudence shows that the word "Election" or the term "election Process" is considered to be the process after the election schedule has been announced. However, the full scope of the word "election," has not been considered in its true constitutional context i.e., to organize, conduct and make necessary arrangements for holding elections under Article 218(3) of the Constitution.[84] Secondly, due to separate and distinct legislation for delimitation and the limited scope of dispute resolution under an election petition under ROPA, the question of delimitation has not come up in these cases. The historical jurisprudence, therefore, stands on the side and does not come in the way of the view taken by this Court in answering the constitutional questions raised in this case.

3. For the above reasons we, inter alia, unanimously hold as under:

(i) The Ouster Clause under Section 10A of the Punjab Local Government Act, 2013 cannot impose fetters on the constitutional jurisdiction of this Court or the constitutional role of Election Commission of Pakistan and is therefore, read down, to this extent.

(ii) The administrative branch of this Court cannot be directed through a judicial order not to entertain and fix cases of any particular nature without providing the litigant the right to access to justice and the right to place the case before a forum exercising judicial power.

(iii) The view taken by the learned Single Bench in W.P.No. 15033/2013 and by the learned Division Benches in ICA Nos. 346/2103 and 1029/2103 of this Court on the ouster clause under Section 10A of the Act is against Articles 4, 9 and 10A of the Constitution and shall not be treated as a precedent.

(iv) Sections 8 to 10 of the Punjab Local Government Act, 2013 and Rules 3 to 8 of the Punjab Local Governments (Delimitation) Rules, 2013 are inconsistent with Article 218(3) read with Article 222(b) of the Constitution as they abridge and take away the constitutional role and obligation of ECP besides offending Articles 3, 4, 9, 14, 17, 19 and 25 of the Constitution. As a consequence the aforesaid provisions of the Act are declared to be unconstitutional and, therefore, struck down.

(v) For the reasons given in this judgment, all these petitions are allowed and the impugned orders of Delimitation Authority and the impugned final Notifications issued by the Delimitation Officers are set aside.

Direction to ECP.

1. It is now settled that ECP being a constitutional body has powers under the Constitution to issue directions in order to hold fair elections (see: Sheikh Rashid Ahmed v. Government of Punjab and others (PLD 2010 SC 573). This power is not dependent on a sub-constitutional legislation. The constitutional dictate is that Election Commission of Pakistan shall hold elections to the local governments.

We, therefore, direct ECP to perform its constitutional role without further ado and hold elections to the local governments in Punjab forthwith. ECP need not to await for the legislative amendments to the Act in the light of this judgment.

1. It is an admitted position that the existing National Census in the country was last held in the year 1998 and since then an inchoate exercise was held in the year 2008 but the Census was not completed. On the other hand electoral rolls for the local government elections, prepared in the year 2013 are based on the census blocks of the incomplete Census of the year 2008. Population is a fundamental parameter for carrying out fair and equitable delimitation of the constituencies. This is a serious challenge for ECP. We are confident that ECP, will steer through it with success, ensuring that the elections to the local governments are organized and conducted honestly, justly, fairly and in accordance with law.

2. Direction to the Provincial Government:

The Provincial Government under Article 140A of the Constitution shall take necessary steps for carrying out amendments in the Punjab Local Government Act, 2013 in the light of the constitutional role and obligations of ECP provided under Part VIII of the Constitution, as laid down in this judgment, as soon as possible, so that democracy in the country is further strengthened.

Same order in identical petitions listed in the Schedule.

1. This judgment also decides the petitions mentioned in the Schedule, hereunder, as they also raise same constitutional, legal and factual questions.

Urdu version of the judgment.

1. Considering that the judgment elaborates the principle of "political Justice" we feel that it must be accessible to the general public. Office is directed to arrange for the Urdu translation of the judgment in terms of Articles 28 and 251 of the Constitution. Support is drawn from Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another (PLD 2011 SC 407). It is clarified that the Urdu version is only to enhance accessibility and readership but will not be quoted as a precedent.

2. Before leaving the judgment we acknowledge, with gratitude, the material assistance rendered by the amici curiae and the young research officers of this Court.

3. This judgment furnishes our detailed reasons for the verbal or der announced in Court on 31-12-2013.

TABLE-B

The Punjab Local Government Act, 2013

Section 8 Delimitation of Union Councils:

(1) A Union Council shall be an area consisting of one or more revenue estates or, in the case of an area where revision of settlement under the law has not taken place, one or more census villages or, in the case of an urban area a census block or blocks as delimited for purposes of the last preceding census or a census block and a revenue estate, notified as such by the Government.

(2) As far as possible:

(a) the area of a Union Council shall be a territorial unity;

(b) the boundaries of a Union Council shall not cross the limits of the Metropolitan Corporation, a Municipal Corporation.

(c) the population of Union Councils within a local government shall be uniform.

(3) The Government shall, in the prescribed manner, delimit a Union Council into six wards for the election of members on general seats and into two wards, consisting of three adjoining wards of the Union Council, for the election of the two seats reserved for women.

(4) A ward shall, as far as possible, consist of a part of a village, one or more adjoining villages and, in case of an urban area, a part of a census block, census block or adjoining census blocks and, as far as possible, the population of wards shall be uniform.

Section 9 Delimitation of wards in Municipal Committees:

(1) The Government shall, in the prescribed manner, delimit a Municipal Committee into wards for election of members of the Municipal Committee on general seats.

(2) For purposes of delimitation of a Municipal Committee, a ward shall, as far as possible, consist of a part of a census block, a census block or adjoining census blocks and the population of wards within a Municipal Committee shall be uniform.

Section 10 Waiver of conditions:

The Government may in a specific case and for reasons to be recorded in writing, waive the conditions of delimitation mentioned in Section 8.

Section 10-A Finality of delimitation:

A Court, officer or authority shall not review or correct any delimitation of a Union Council or ward after the notification of the election schedule.

Section 19 Election Commission to conduct elections:

(1) The Election Commission shall conduct the Local Government elections and, for the purpose, shall, by notification in the official Gazette, declare the election schedule for election under this Act.

(2) The Election Commission may, by order in the Official Gazette, make provisions for the conduct of Local Government elections if no provisions or no sufficient provisions have been made under this Act or the rules.

Section 21 Electoral rolls:

(1) A person shall be entitled to be enrolled as a voter if he:

(a) is a citizen of Pakistan;

(b) is not less than eighteen years of age; and

(c) fulfils such other conditions as the Election Commission may specify.

(2) The electoral rolls for the local government elections shall be prepared or adapted or adopted by the Election Commission in such manner as it may deem appropriate and the electoral rolls shall not be invalid by reason of any erroneous description in the electoral rolls of any person listed or of an omission of the name of any person entitled to be enrolled or of inclusion of the name of any person not so entitled.

(3) Every person whose name is entered in the electoral roll shall be entitled to cast a vote at the direct elections of the local government.

Sd/- Judge.

Sd/- Judge.

Sd/- Judge.

| | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | Country | National /Federal or Provincial Boundary/Delimitation Commissions | | | Local Bodies Delimitation Commissions | | | | Name of National Body Status | Membership | Governing Law | Name of Local Government Body | Membership | Local Government Law | | New Zealand | Representation Commission[85] (Independent Statutory Body) | The Chairperson, appointed by the Governor-General following nomination by the members of the Commission; Four ex officio members (the Surveyor-General, Government Statistician, Chief Electoral Officer, and Chairperson of the Local Government Commission); and Two members representing the Government and the Opposition, appointed by the Governor-General following nomination by the House of Representatives. | Electoral Act 1993 | Local Government Commission[86] (An independent statutory body) | The Commission has three members who are appointed by the Minister of Local Government | Local Government Act 2002. | | Canada | Electoral Boundaries Commissions[87] (Independent Statutory Body) | Judge of Provincial Court to be nominated by the Chief Justice of Province Concerned Two other members appointed by the Speaker of the House of Commons | Electoral Bound-aries Readjust-ment Act R.S.C., 1985, c.E-3 | The restructuring of a local body may be done by a vote of Council or by appointment of a Commission by the Minister. It may be a one man Commission.[88] (Independent process, though appointment is by the Minister) | Sections 171 to 179 of the Municipal Act, 2001.[89] | Provincial Laws: For example, Ontario province has the Municipal Act 2001 | | Australia | Australian Electoral Commission[90] (Independent Statutory Body) | The Electoral Commissioner; The Australian Electoral Officer for the particular State or the Northern Territory (the Senior Divisional Returning Officer in the case of the ACT); The State Surveyor-General for the State or the person holding an equivalent office; and The Auditor-General for the State or if unavailable a substitute. (Independent Body) | Common-wealth Electoral Act 1918[91] | Each Province has its own Local Boundary Commissions. For New South Wales (NSW), the Local Government Boundaries Commission is an independent statutory authority.[92] (Independent statutory body)[93] | A Judge of the Supreme Court (past or current), The Electoral Commissioner, The Surveyor-General. | Constituted under section 260 of the Local Government Act 1993[94] | | United Kingdom | | | | Local Government Boundary Commission for England (Independent Statutory Body set up by Parliament)[95] | (a) the chair of the Commission, and (b) at least four and no more than eleven other members (“ordinary members”).[96] | S. 55 of the Local Democracy, Economic Development and Construction Act 2009[97] | | United States of America | States Redistricting and Apportionment Commissions[98] (Independent Statutory Bodies) | 1. (a) After each federal census taken in a year ending in zero, the Congressional districts shall be established by the New Jersey Redistricting Commission. The commission shall consist of 13 members, none of whom shall be a member or employee of the Congress of the United States. The members of the commission shall be appointed with due consideration to geographic, ethnic and racial diversity and in the manner provided herein. (b) There shall first be appointed 12 members as follows: (1) two members to be appointed by the President of the Senate; (2) two members to be appointed by the Speaker of the General Assembly; (3) two members to be appointed by the minority leader of the Senate; (4) two members to be appointed by the minority leader of the General Assembly; and (5) four members, two to be appointed by the chairman of the State committee of the political party whose candidate for the office of Governor received the largest number of votes at the most recent gubernator-rial election and two to be appointed by the chairman of the State committee of the political party whose candidate for the office of Governor received the next largest number of votes in that election.[99] | New Jersey State Constitution 1947 (Updated Through Amendments adopted in November, 2010)[100] | Independent Redistricting Commission 2011[101] Tompkins County | NINE Member independent Commission to redistrict the county for local bodies elections | Tompkin County Legislature Resolution No. 2011-49[102] | | Temporary Districting Advisory Commission[103] | 11 Member body (Independent body) | Nassau County Legislative website | | King county Districting Committee | 5 Member independent Body | The 2011 Districting Committee was responsible for redrawing King County Council Districts using 2010 Census data. By law, district boundaries must be realigned every 10 years to reflect changes in population distribution. The Committee held seven public hearings at locations across the County and released a variety of public drafts. The final plan was adopted Nov. 15, 2011.[104] | | Hawai‘i Redistricting Commission | Nine Member independent body | Hawa‘ii Country Charter, section 3-11[105] | | Bhutan | Delimitation Commission Appointed by the Election Commission[106] (An independent Body) | (a) Chief Election Commissioner; (b) Two Election Commissioners; (c) Secretary, Ministry responsible for Urban and Municipal Administration; (d) Secretary, Ministry responsible for Civil Registration and Census; and (e) Surveyor-General | Election Act of the Kingdom of Bhutan, 2008[107] | Delimitation Commission Appointed by the Election Commission[108] (An independent Body) | (a) Chief Election Commissioner; (b) Two Election Commissioners; (c) Secretary, Ministry responsible for Urban and Municipal Administration; (d) Secretary, Ministry responsible for Civil Registration and Census; and (e) Surveyor-General | ELECTION ACT OF THE KINGDOM OF BHUTAN, 2008[109] | | India | Election Commission of India (Independent Body) | An independent body consisting of the following: (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.[110] | Article 324 of the Constitution of India 1950. | State Election Commission (an independent body) | To be appointed by the Governor. The Commissioner is an independent body cannot be removed by the executive. (See Articles 243K and 243ZA of the Indian Constitution. | Article 243K and 243ZA of the Constitution of India, 1950 Panchayats and Local Governments83 |

TABLE-C

| | | | | --- | --- | --- | | Constitutions | Related Electoral Laws | Related Local Government Laws | | Constitution of the Islamic Republic of Pakistan, 1956 Part-VIII – Elections Articles 137 – 147 Article 140 The Election Commission shall be charged with the duty of,-- (a) preparing electoral rolls for elections to the National Assembly and the Provincial Assemblies, and revising such rolls annually ; and (b) organizing and conducting elections to the National Assembly and the Provincial Assemblies. Article 142 (5) The validity of any thing done by or under the authority of the Delimitation Commission shall not be called in question in any Court. Article 144 Subject to the provisions of the Constitution, Parliament may by Act provide for— (a) the delimitation of constituencies, the preparation of electoral rolls, the determination of objections and the commencement of electoral rolls; (b) the conduct of elections and election petitions; the decision of doubts and disputes arising in connection with elections ; (c) maters relating to corrupt practices and other offences in connection with elections ; and (d) all other matters necessary for the due constitution of the National Assembly and Provincial Assemblies; but no such law shall have the effect of taking away or abridging any of the powers of the Election Commission under this Part. Article 146 No election to the National Assembly or a Provincial Assembly shall be called in question except by an election petition presented to such authority and in such manner as may be provided by Act of Parliament. | | | | | | The Basic Democracies Order, 1959[111] Section 3(16) “Election Commission” means the Election Commission appointed by the President. Section 17 Wards: For the purpose of election to a Union Council or to a Town or Union Committee, the Union or Town shall be divided into as many wards as are necessary under the provisions of this Order and the rules. Basic Democracies (Amendment), Act 1965[112] West Pakistan Basic Democracies Election Rules, 1959 Rule 2(9) “Election Authority” means an authority constituted under these rules to organize, conduct and supervise elections to Basic Democracies. Rule 3(1) Government may constitute an Election Authority which shall consist of such number of members as may be specified by Government. The Chairman and members of the Election Authority shall be appointed by Government. The Election Authority shall be responsible for the organization, conduct and supervision of elections to Basic Democracies in the Province of West Pakistan. In the performance of its functions under these rules the Election Authority may be assisted by such number of Provincial Officers as may be appointed by Government from time to time. Rule 3(2) Subject to the general supervision of the Election Authority the Commissioner shall be responsible for the organization, conduct and supervision of elections to Basic Democracies within his Division. In the performance of his functions under these rules, the Commissioner may be assisted by a Divisional Election Officer. Rule 3(3) Subject to the general supervision of the Election Authority and the Commissioner, the Collector shall be responsible for the organization, conduct, and supervision of elections to Basic Democracies within his district. In the performance of his functions under these rules, the Collector may be assisted by a District Election Officer. Rule 5(6) The Commissioner may divide a Union for a rural or urban area or a Town into wards or declare the entire Union or Town a Ward for the purposes of election and in the demarcation of Wards the following principles shall be observed, namely,-- (a) that the area comprised in a ward shall be contiguous as far as possible; (b) that a ward shall return such number of members as may be fixed by the Commissioner; (c) that were a ward is a single-member ward its population shall not be less than 400 or more than 1,200; and (d) where the ward is a multiple-member ward, there shall be one seat for every unit of 800 population and where the total population is not exactly divisible by 800 the remainder shall be disregarded if it is less than 400 and shall be counted as 800 if it is 400 or more: Provided that the Commissioner may by order and for reasons to be recorded vary the number of seats to be allotted to any ward in such manner as the local circumstances may require. Rule 55 Election Petition (1) No election shall be called in question except by an election petition presented in accordance with these rules. (3) Where a petitioner has been a contesting candidate, he shall join as respondents to his petition all the other contesting candidates, and a copy of the election petition shall be served upon each respondent. (4) An election petition shall – (a) contain a precise statement of the material facts on which the petitioner relies; (b) set forth full particulars of any corrupt practices; material irregularity; offence or other illegal act alleged by the petitioner, including as full a statement as possible of the names of the persons alleged to have committed such practices or acts and the date and place of the commission of every such corrupt practice, material irregularity, offence or other illegal act. (5) In the election petition, the petitioner may claim any of the following declaration— (a) that the election of the returned candidate is void, or (b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or (c) that the election as a whole is void. (8) An election petition may be presented by any elector or candidate. Rule 56 Election Tribunal (1) The election petitions presented under these rules shall be enquired into and tried by the Election Tribunal. Rule 59 Grounds for declaring an election void.— The Election Tribunal shall declare an election to be void if it is satisfied that-– (a) the nomination of the returned candidate was invalid; (b) on the nomination day the returned candidate was not qualified, for or was disqualified from, being elected for the ward; (c) the failure of any person to comply with the provisions of the Order or these rules has materially affected the results of the election; or (d) the result of the election has been materially affected by the improper acceptance or rejection of any nomination paper; or (e) the improper reception or refusal of any vote, or the reception of any vote which should not have been received, has materially affected result of the election; or (f) the election of the returned candidate has been procured or induced by any corrupt practice, or illegal act; (g) a corrupt practice or illegal act has been committed by the returned candidate or his authorized agent or by any other person with the connivance of the candidate or his authorized agent; or (h) corrupt practices, material irregularities, illegal payments, employments, or hirings have so extensively prevailed at the election that they may be reasonably supposed to have affected the result. | | Constitution of Islamic Republic of Pakistan, 1962 Part-VII – Elections Articles 147 – 173-A Article 155 (1) Each Province shall, in accordance with law, be divided into not less than Forty thousand territorial units, which shall be known as electoral units. (2) The number of electoral units in each Province shall be the same. Article171 (1) Subject to Clause (2) of this Article, provision may be made by law— (a) for disputes arising in connection with the counting of votes at an election or referendum required to be held under this Constitution to be finally determined by the Commissioner or an Election Commission ; and (b) for other disputes arising in connection with such an election or referendum to be finally determined by a tribunal established for that purpose, and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in question except in accordance with such a law. (2) When a person has been declared to have been elected as President, the validity of the election shall not be called in question in any manner before or by any Court or authority whatsoever. (3) The validity of anything done by the Commissioner under Article 160, 161 or 162 shall not be called in question in any manner before or by any Court or authority whatsoever. | National and Provincial Assemblies (Elections) Act, 1964 [113] Section 2(6). “Commissioner” means the Election Commissioner appointed under Article 147. Section 3. Delimitation of Constituencies. (1) As soon as may be after the delimitation of electoral units under the Electoral College Act, 1964 (IV of 1964), the Commissioner shall, after making such enquiries and examining such records as he may deem necessary and after considering such representations as he may have received, arrange the electoral units of each Province— (a) into one hundred and fifty groups for the purpose of delimiting the Provincial constituencies under clause (1) of Article 160 ; and (b) into seventy-five groups for the purpose of delimiting the Central constituencies under clause (1) of Article 161; having regard, so far as practicable, to distribution of population and administrative convenience, so that each such constituency is an undivided area, and shall publish, in the official Gazette, a preliminary list of constituencies, showing the electoral units proposed to be included in each such constituency together with a notice inviting objections or suggestions within a period specified therein. (2) The Commissioner shall, after hearing and considering the objections or suggestions, if any, received by him, makes such amendments, alterations or modifications in the preliminary lists published under sub-section (1) as he may consider necessary and may also make such other amendments, alterations or modifications in the said lists as may be necessary for correcting any error or omission. (3) After making amendments, alterations or modifications, if any, under sub-section (2), the Commissioner shall publish in the official Gazette the final list of constituencies showing the electoral units included in each such constituency. Section 52. Election not to be questioned except by election petition or appeal.— (1) Save as provided in Section 53, no election shall be called in question except by an election petition under Section 57. (2) No question that can be raised in an appeal under Section 53 shall be raised by an election petition or before any Court or authority whatsoever, nor shall any question that can be raised by an election petition be raised before any such Court or authority. Section 53. Appeal. (1) A contesting candidate who is aggrieved by any proceeding under Section 38 relating to the count may prefer an appeal challenging the count to the Commissioner. (2) An appeal under sub-section (1) shall be made in such form and presented in such manner and within such time as may be prescribed. (3) No appeal shall be received unless a sum of two hundred rupees is deposited in the manner provided in Section 13. (4) The Commissioner may, after giving the parties concerned an opportunity of being heard,-- (a) dismiss the appeal; or (b) if it is not so dismissed, determine the result of the election on the count of valid votes as corrected and make such consequential orders as may be necessary. Section 57. Election petition (1) Subject to the provisions of Section 52, any candidate may make an election petition challenging an election for which he was a candidate on one or more of the grounds mentioned in Section 72. (2) An election petition shall be presented to the Commissioner within such time as may be prescribed and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or sub-Treasury in favour of the Commissioner as security for the cost of the petition a sum of seven hundred and fifty rupees. Section 58. Parties to the petition.The petitioner shall join as respondents to his election petition. (a) all contesting candidates ; and (b) any other candidate against whom allegations, if any, of any corrupt or illegal practice are made, and shall serve personally or by registered post on each such respondent a copy of his petition. Section 59. Contents of petition. (1) Every election petition shall contain— (a) a precise statement of the material facts on which the petitioner relies; (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible 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 (c) the relief claimed by the petitioner. (2) A petitioner may claim as relief any of the following declarations, namely:-- (a) that the election of the returned candidate is void; (b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected ; or (c) that the election as a whole is void. (3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings. Section 71. 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; or (d) declaring the election as a whole to be void. Section 72. (1) Grounds for decision. The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that— (a) the nomination of the returned candidate was invalid; or (b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected to the seat in question; 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 agent or by any other person with the connivance of the candidate or his election agent: | Electoral College Act, 1964 [114] Section 2 (3) “Commissioner” means the Chief Election Commissioner appointed under Article 147; Section 4. Division of a Province into electoral units.— For the purpose of Article 155, each Province shall be divided into forty thousand electoral units in accordance with the provisions of this Act. Section 5-Delimitation Officer.— The Commissioner may appoint from amongst the officers of the Central Government or a Provincial Government as many Delimitation Officers as he may deem necessary for the delimitation of electoral units under this Act. Section 6-Delimitation of electoral units.— (1) The electoral units shall be delimited by the Delimitation Officers under the superintendence, direction and control of the Commissioner. (2) The electoral units within an area shall be delimited having regard to territorial unity and, so far as practicable, to distribution of population and administrative convenience. (3) A Delimitation Officer may, for the purpose of delimiting the electoral units, make such enquiries and examine such records as he may deem necessary and consider such representations as may be received by him, and shall publish in the prescribed manner a preliminary list of electoral units specifying the areas proposed to be included in each such unit together with a notice inviting objections or suggestions, within a prescribed period. (4) The objections or suggestions, if any, received under sub-section (3) shall be disposed of in such manner as may be prescribed. (5) The Delimitation Officer shall make such amendments, alterations or modifications in the preliminary list published under sub-section (3) as may be required by any decision on any objection or suggestion and may also make such other amendments, alterations or modifications in the said list as may be necessary for correcting any error or omission. (6) After making amendments, alterations or modifications, if any, under sub-section (5), the Delimitation Officer shall publish in the prescribed manner the final list of electoral units specifying the areas included in each such unit. Section 14 - Time for holding election.— (1) A general election shall be held— (a) for the purpose of constituting the first Electoral College under this Act, as soon as may be after the electoral rolls for the electoral units have been prepared under Chapter IV ; and (b) for re-constituting the Electoral College after the expiration of the term of the previous Electoral College, at least thirty days prior to such expiration. (2) A bye-election shall be held, as far as practicable, within ninety days of the occurrence of a vacancy: Provided that it shall not be necessary to hold a bye-election to fill a vacancy occurring within one hundred and eighty days immediately preceding the day on which the term of the Electoral College is due to expire. Section 15 - Notification for election.--For the purpose of an election to constitute the Electoral College, the Commissioner shall call upon the electoral units, by notification in the official Gazette, to elect from each electoral unit, before such date as may be specified therein, a person as a member of the Electoral College. Section 58 - Election petitions.— (1) No election shall be called in question except by an election petition under sub-section (2). (2) Any candidate may make an election petition challenging the election at which he was a candidate. (3) An election petition in respect of an election from an electoral unit shall be presented, in such manner as may be prescribed, to the Election Tribunal appointed under Section 59. | | | National and Provincial Assemblies (Elections) Ordinance, 1970[115] Section 2. (iv) “Commission” means the Election Commission constituted under the Legal Framework Order, 1970; (v) “Commissioner” means the Chief Election Commissioner appointed or deemed to be appointed under the Electoral Rolls Order, 1969. Section 50. Election petition (1) No election shall be called in question except by an election petition made by a candidate for that election. (2) An election petition shall be presented to the Commissioner within such time as may be prescribed and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or sub-Treasury in favour of the Commissioner as security for the costs of the petition a sum of one thousand rupees. Section 51. Parties to the petition: The petitioner shall join as respondents to his election petition– (a) all contesting candidates; and (b) any other candidate against whom any allegation, if any, of any corrupt or illegal practice is made, and shall serve personally or by registered post on each such respondent a copy of his petition. Section 52. Contents of petition: (1) Every election petition shall contain— (a) a precise statement of the material facts on which the petitioner relies; (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or act and the date and place of the commission of such practice or act; and (c) the relief claimed by the petitioner. (2) A petitioner may claim as relief any of the following declarations, namely— (a) that the election of the returned candidate is void; (b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or (c) that the election as a whole is void. (3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. Section 64. Decision of the Tribunal: (1) 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; or (d) declaring the election as a whole to be void. (2) Save as provided in sub-section (3), the decision of a Tribunal on an election petition shall be final. (3) Any person aggrieved by a decision of the Tribunal, may within thirty days of the announcement of the decision, appeal to the High Court on any of the grounds enumerated in Section 100 of the Code of Civil Procedure, 1908 and the decision of the High Court on such appeal shall be final, and shall not be subject to appeal to the Supreme Court. Every such appeal shall be heard by a Division Bench of two Judges of the High Court. Section 65. Ground for 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 was invalid; or (b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or (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 election 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 form, being elected as a member. Section 66. Ground for declaring a person other than a returned candidate elected–The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected. Section 67. 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 this Ordinance and the rules; or (b) the prevalence of extensive corrupt or illegal practice at the election. The Delimitation of Constituencies Order 1970[116] Article 2. (a) “Commission” means the Delimitation Commission constituted under Article 4; Article 4. Constitution of Delimitation Commission--- (1) For the purpose of this Order, the President shall constitute a Delimitation Commission consisting of the following members, namely— (a) the Chief Election Commissioner appointed or deemed to be appointed under the Electoral Rolls Order, 1969 (P. O. No. 6 of 1969), who shall be the Chairman of the Commission; (b) two other members, each being a Judge of a High Court, appointed by the President after consultation with the Chief Justice of that Court. (2) The Commission shall continue to function until it is, by order or the President dissolved. (3) The Chairman and other members of the Commission shall be entitled to such immunities and privileges as the President may determine. Article 9.Validity of act of Commission not questionable.---The validity of the delimitation or formation of any constituency, or of any proceedings taken or anything done by or under the authority of the Commission, under this Order shall not be called in question in any Court.”[117] | The Punjab People’s Local Government Ordinance, 1972 ( VIII of 1972). Section 18. Delimitation of electoral units.— The electoral units for all the People‘s Local Councils shall be delimited in the prescribed manner. | | The Constitution of the Islamic Republic of Pakistan, 1973 | The Delimitation of Constituencies Act, 1974[118] Section 2. (b) “Commission” means the Election Commission constituted under Article 218. (c). “population” means the population in accordance with the last preceding census officially published; Section 3. Commission to delimit constituencies.---The Commission shall delimit territorial constituencies for elections to the National Assembly and to each Provincial Assembly in accordance with the provisions of the Constitution and this Act. Section 9. Principles of delimitation.--(1) All constituencies for general seats shall, as far as practicable, be delimited having regard to the distribution of population in geographically compact areas, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies: Provided, that for the purpose of delimiting constituencies for the general seats for the Federally Administered Tribal Areas two or more separate areas may be grouped into one constituency. (2) As far as may be the constituencies for election to the same Assembly shall be equal among themselves in population. Section 11. Bar of jurisdiction.--The validity of the delimitation of any constituency, or of any proceedings taken or anything done by or under the authority of the Commission, under this Act shall not be called in question in any Court.” The Representation of People Act, 1976 Electoral Rolls Act, 1974[119] Electoral Rolls Rules, 1974 | The Punjab Local Government Act, 1975 (XXXIV of 1975) Section 23. Election Authority. (1) Government may appoint a Punjab Local Council Election Authority for conducting elections to the Local Councils. (2) Election Authority shall exercise such powers and perform such functions as may be prescribed. The Punjab Local Government Ordinance, 1979 [120] Section 3 (1) In the Ordinance, unless the context otherwise requires – (xi) “electoral unit” means a portion of a local area from which one or more than one member shall be elected. Section 14. Electoral units.— (1) Save as otherwise provided, a local area shall be divided in the prescribed manner into such number of electoral units as may be determined by the Election Authority for the purpose of election of members of a local council. (2) All electoral units for Muslim seats shall, as far as practicable, be delimited having regard to the distribution of population, including non-Muslims, geographical compactness, existing boundaries of administrative units, facility of communications and public convenience. (3) An electoral unit may be single member or multi-member, as may be determined by the Election Authority: Provided that, in the case of election of non-Muslim members, the entire local area of a local council shall form one electoral unit. (4) As far as may be, single-member electoral units for election to the same local council shall be equal among themselves in population. Section 15. Election Authority (1) Government shall appoint an Election Authority for conducting elections to local councils. Section 16. Assistance to Election Authority. It shall be the duty of all executive authorities in the Province and all local authorities under the administrative control of Government to assist the Election Authority in the performance of its functions. Section 17. Election Authority to ensure fair elections, etc.The Election Authority may issue such instructions and exercise such powers including the power to review an order passed by an officer under the Ordinance or the rules, and make such consequential order as may in its opinion be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the rules. Section 23. Conduct of Elections (1) Elections to local councils shall be conducted in such manner as may be prescribed. (2) Government may also provide for offences relating to elections to local councils, the penalties to be imposed for such offences and the procedure to be followed for the trial of such offences. Section 24. (3) the decision of the Tribunal on an election petition shall be final. The Punjab Local Councils (Election) Rules, 1979[121] Rule 2 (1) (e) “Election Authority” means an Election Authority appointed under Section 15; Rule 4 – Appointment of Delimitation Officers, etc.— (1) The Election Authority may appoint from amongst the persons in the service of Pakistan or a Local Authority, as many Delimitation Officers and Assist Delimitation Officers, as it may deem necessary for the delimitation of Local Areas into electoral units or for the revision of such delimitation. (2) An Assistant Delimitation Officer shall assist the Delimitation Officer in the performance of his functions under the Ordinance and the rules framed there-under and may, subject to such instructions as may be given in this behalf by the Election Authority, perform, under the control of the Delimitation Officer, the functions of the Delimitation Officer. Rule 5 – Delimitation of Electoral Units.— (1) The electoral units of a local area as may have been determined by the Election Authority shall be delimited by the Delimitation Officer under the superintendence, direction and control of the Election Authority. (2) A Delimitation Officer may, for the purpose of delimiting the electoral units make such inquiries and examine such record as he may deem necessary and consider such representations as may be received by him. Punjab Local Government Act, 1996 (VII OF 1996): Section 13. Delimitation of electoral units.— (1) Electoral units as determined by the Election Authority under sections 8 and 9 shall be delimited in the prescribed manner for the purpose of election of Muslim and non-Muslim members of a local council: Provided that the Election Authority may in the process of delimitation allow such variations in the population of electoral units of a local council as it may consider necessary. (2) All electoral units for Muslim seats shall, as far as practicable, be delimited having regard to the distribution of population, including non-Muslims, geographical compactness, existing boundaries of administrative units, facility of communications and public convenience. (3) All electoral unit for non-Muslim seats shall be delimited as far as practicable in accordance with the provisions of sub-section (2). (4) An electoral unit may be single member or multi-member, as may be determined by the Election Authority: Provided that village panchayats shall have multi member electoral units: Provided further that ward councils may have single or multiple member electoral units depending upon determination in this regard by Government. (5) As far as may be, single member electoral units for election to the same local council shall be equal among themselves in population. Section 14. Election Authority. (1) Government shall appoint an Election Authority for conducting elections to local councils. (2) The Election Authority shall consist of such number of members being not less than three as may be determined by Government. (3) The Election Authority shall exercise such powers and perform such functions as may be prescribed. (4) No person shall be appointed as Chairman unless he is, or has been, a judge of the High Court. (5) A member of the Election Authority shall be a person who is or has been in the Service of Pakistan in BS-19 or above. (6) Notwithstanding anything contained in sub-sections (2) and (4) Government may reconstitute the Election Authority after the elections to the local councils have been held and the reconstituted Election Authority may have such number of members and possess such qualifications and experience as the Government may consider necessary. (7) The Election Authority shall, subject to the provisions of this Act and the rules, regulate its own procedure. (8) The Election Authority may exercise it powers and perform its functions notwithstanding a vacancy in the office of any one of its members or the Chairman or the fact that any of its members or the Chairman is, for any reason, unable to attend its proceedings and the decision taken by the members present shall have the effect of the decision of the Election Authority. (9) The Election Authority may authorise its members jointly or individually to exercise and perform all or any of its power and functions under this Act and the rules and the decision taken by a member or members shall have the effect of the decision of the Election Authority. (10) The Election Authority may appoint officers and servants on such terms and conditions and possessing such qualifications as it may deem fit, for the purpose of performing its functions under the Act and the rules. Section 18. Contempt of Election Authority.–Any proceeding before the Election Authority shall be deemed to be a judicial proceeding within the meaning of Section 228 of the Pakistan Penal Code, 1860 (XLV of 1860) and the Election Authority shall be deemed to be a Court within the meaning of sections 476 and 480 of the Code of Criminal Procedure, 1898 (V of 1898). | | The Constitution of the Islamic Republic of Pakistan, 1973 Post Constitution 18th Amendment Act, 2010 w.e.f. 19.04.2010 Part VIII-Elections Articles 213 – 226 | The Representation of People Act, 1976 Electoral Rolls Act, 1974 Electoral Rolls Rules, 1974 | The Punjab Local Government Act, 2013[122] Section 8. Delimitation of Union Councils.— (1) A Union Council shall be an area consisting of one or more revenue estates or, in the case of an area where revision of settlement under the law has not taken place, one or more census villages or, in the case of an urban area, a census block or blocks as delimited for purposes of the last preceding census or a census block and a revenue estate, notified as such by the Government. (2) As far as possible: (a) the area of a Union Council shall be a territorial unity; (b) the boundaries of a Union Council shall not cross the limits of the Metropolitan Corporation, a Municipal Corporation. (c) the population of Union Councils within a local government shall be uniform. (3) The Government shall, in the prescribed manner, delimit a Union Council into six wards for the election of members on general seats and into two wards, consisting of three adjoining wards of the Union Council, for the election of the two seats reserved for women. (4) A ward shall, as far as possible, consist of a part of a village, one or more adjoining villages and, in case of an urban area, a part of a census block, census block or adjoining census blocks and, as far as possible, the population of wards shall be uniform. Section 9. Delimitation of wards in Municipal Committees.— (1) The Government shall, in the prescribed manner, delimit a Municipal Committee into wards for election of members of the Municipal Committee on general seats. (2) For purposes of delimitation of a Municipal Committee, a ward shall, as far as possible, consist of a part of a census block, a census block or adjoining census blocks and the population of wards within a Municipal Committee shall be uniform. Section 10. Waiver of conditions.--The Government may in a specific case and for reasons to be recorded in writing, waive the conditions of delimitation mentioned in Section 8. Section 10A. Finality of delimitation.--A Court, officer or authority shall not review or correct any delimitation of a Union Council or ward after the notification of the election schedule. Section 21. Electoral rolls.— (1) A person shall be entitled to be enrolled as a voter if he: (a) is a citizen of Pakistan; (b) is not less than eighteen years of age; and (c) fulfils such other conditions as the Election Commission may specify. (2) The electoral rolls for the local government elections shall be prepared or adapted or adopted by the Election Commission in such manner as it may deem appropriate and the electoral rolls shall not be invalid by reason of any erroneous description in the electoral rolls of any person listed or of an omission of the name of any person entitled to be enrolled or of inclusion of the name of any person not so entitled. (3) Every person whose name is entered in the electoral roll shall be entitled to cast a vote at the direct elections of the local government. |

Sd/- Judge

Sd/- Judge

Sd/- Judge

SCHEDULE

| | | | --- | --- | | Sr. # | Case Number | | 1. | W.P. No.31705/2013 | | 2. | W.P. No.31203/2013 | | 3. | W.P. No.32493/2013 | | 4. | W.P. No.32872/2013 | | 5. | W.P. No.31204/2013 | | 6. | W.P. No.31205/2013 | | 7. | W.P. No.32724/2013 | | 8. | W.P. No.32803/2013 | | 9. | W.P. No.32887/2013 | | 10. | W.P. No.32924/2013 | | 11. | W.P. No.30227/2013 | | 12. | W.P. No.31615/2013 | | 13. | W.P. No.31595/2013 | | 14. | W.P. No.31649/2013 | | 15. | W.P. No.28784/2013 | | 16. | W.P. No.30110/2013 | | 17. | W.P. No.32168/2013 | | 18. | W.P. No.31136/2013 | | 19. | W.P. No.30020/2013 | | 20. | W.P. No.31298/2013 | | 21. | W.P. No.30149/2013 | | 22. | W.P. No.30771/2013 | | 23. | W.P. No.31059/2013 | | 24. | W.P. No.31795/2013 | | 25. | W.P. No.30303/2013 | | 26. | W.P. No.31095/2013 | | 27. | W.P. No.31523/2013 | | 28. | W.P. No.32243/2013 | | 29. | W.P. No.32048/2013 | | 30. | W.P. No.32005/2013 | | 31. | W.P. No.31941/2013 | | 32. | W.P. No.31810/2013 | | 33. | W.P. No.30694/2013 | | 34. | W.P. No.30368/2013 | | 35. | W.P. No.32547/2013 | | 36. | W.P. No.30612/2013 | | 37. | W.P. No.31891/2013 | | 38. | W.P. No.31151/2013 | | 39. | W.P. No.32381/2013 | | 40. | W.P. No.30023/2013 | | 41. | W.P. No.32258/2013 | | 42. | W.P. No.32290/2013 | | 43. | W.P. No.32265/2013 | | 44. | W.P. No.30807/2013 | | 45. | W.P. No.30361/2013 | | 46. | W.P. No.29108/2013 | | 47. | W.P. No.32882/2013 | | 48. | W.P. No.31786/2013 | | 49. | W.P. No.31720/2013 | | 50. | W.P. No.31573/2013 | | 51. | W.P. No.31447/2013 | | 52. | W.P. No.32487/2013 | | 53. | W.P. No.32012/2013 | | 54. | W.P. No.31967/2013 | | 55. | W.P. No.31966/2013 | | 56. | W.P. No.31898/2013 | | 57. | W.P. No.31848/2013 | | 58. | W.P. No.30479/2013 | | 59. | W.P.No.32880/2013 | | 60. | W.P. No.30665/2013 | | 61. | W.P. No.31317/2013 | | 62. | W.P. No.30814/2013 | | 63. | W.P. No.31395/2013 | | 64. | W.P. No.30473/2013 | | 65. | W.P. No.32375/2013 | | 66. | W.P. No.32550/2013 | | 67. | W.P. No.32226/2013 | | 68. | W.P. No.32590/2013 | | 69. | W.P. No.28892/2013 | | 70. | W.P. No.32697/2013 | | 71. | W.P. No.32529/2013 | | 72. | W.P. No.32703/2013 | | 73. | W.P. No.32796/2013 | | 74. | W.P. No.32357/2013 | | 75. | W.P. No.32352/2013 | | 76. | W.P. No.29447/2013 | | 77. | W.P. No.33394/2013 | | 78. | W.P. No.33474/2013 | | 79. | W.P. No.33420/2013 | | 80. | W.P. No.32958/2013 | | 81. | W.P. No.33479/2013 | | 82. | W.P. No.33499/2013 | | 83. | W.P. No.33500/2013 | | 84. | W.P. No.33492/2013 | | 85. | W.P. No.33313/2013 | | 86. | W.P. No.33409/2013 | | 87. | W.P. No.33400/2013 | | 88. | W.P. No.33105/2013 | | 89. | W.P. No.33229/2013 | | 90. | W.P. No.32949/2013 | | 91. | W.P. No.33038/2013 | | 92. | W.P. No.33063/2013 | | 93. | W.P. No.33297/2013 | | 94. | W.P. No.33037/2013 | | 95. | W.P. No.32941/2013 | | 96. | W.P. No.33100/2013 | | 97. | W.P. No.33156/2013 | | 98. | W.P. No.33157/2013 | | 99. | W.P. No.33159/2013 | | 100. | W.P. No.33010/2013 | | 101. | W.P. No.33306/2013 | | 102. | W.P. No.33227/2013 | | 103. | W.P. No.33250/2013 | | 104. | W.P. No.33247/2013 | | 105. | W.P. No.32955/2013 | | 106. | W.P. No.33190/2013 | | 107. | W.P. No.33189/2013 | | 108. | W.P. No.33085/2013 | | 109. | W.P. No.33071/2013 | | 110. | W.P. No.32944/2013 | | 111. | W.P. No.33182/2013 | | 112. | W.P. No.33507/2013 | | 113. | W.P. No.33505/2013 | | 114. | W.P. No.33506/2013 | | 115. | W.P. No.33501/2013 | | 116. | W.P. No.33502/2013 | | 117. | W.P. No.33503/2013 | | 118. | W.P. No.33511/2013 | | 119. | W.P. No.33510/2013 | | 120. | W.P. No.33374/2013 | | 121. | W.P. No.33303/2013 | | 122. | W.P. No.32935/2013 | | 123. | W.P. No.32996/2013 | | 124. | W.P. No.32973/2013 | | 125. | W.P. No.33155/2013 | | 126. | W.P. No.33081/2013 | | 127. | W.P. No.29888/2013 | | 128. | W.P. No.32213/2013 | | 129. | W.P. No.31047/2013 | | 130. | W.P. No.32630/2013 | | 131. | W.P. No.31098/2013 | | 132. | W.P. No.32596/2013 | | 133. | W.P. No.33574/2013 | | 134. | W.P. No.33573/2013 | | 135. | W.P. No.33582/2013 | | 136. | W.P. No.33581/2013 | | 137. | W.P. No.33580/2013 | | 138. | W.P. No.33579/2013 | | 139. | W.P. No.33578/2013 | | 140. | W.P. No.33577/2013 | | 141. | W.P. No.33583/2013 | | 142. | W.P. No.33592/2013 | | 143. | W.P. No.32597/2013 | | 144. | W.P. No.32598/2013 | | 145. | W.P. No.32599/2013 | | 146. | W.P. No.32024/2013 | | 147. | W.P. No.31525/2013 | | 148. | W.P. No.30939/2013 | | 149. | W.P. No.31265/2013 | | 150. | W.P. No.31397/2013 | | 151. | W.P. No.33590/2013 | | 152. | W.P. No.33612/2013 | | 153. | W.P. No.33620/2013 | | 154. | W.P. No.33630/2013 | | 155. | W.P. No.33655/2013 | | 156. | W.P. No.33656/2013 | | 157. | W.P. No.33693/2013 | | 158. | W.P. No.33696/2013 | | 159. | W.P. No.33695/2013 | | 160. | W.P. No.29040/2013 | | 161. | W.P. No.29119/2013 | | 162. | W.P. No.29125/2013 | | 163. | W.P. No.29118/2013 | | 164. | W.P. No.29038/2013 | | 165. | W.P. No.29124/2013 | | 166. | W.P. No.29037/2013 | | 167. | W.P. No.29036/2013 | | 168. | W.P. No.29035/2013 | | 169. | W.P. No.29122/2013 | | 170. | W.P. No.31661/2013 | | 171. | W.P. No.33748/2013 | | 172. | W.P. No.33749/2013 | | 173. | W.P. No.33751/2013 | | 174. | W.P. No.33757/2013 | | 175. | W.P. No.33760/2013 | | 176. | W.P. No.33768/2013 | | 177. | W.P. No.33738/2013 | | 178. | W.P. No.31449/2013 | | 179. | W.P. No.32548/2013 | | 180. | W.P. No.31698/2013 | | 181. | W.P. No.32721/2013 | | 182. | W.P. No.32916/2013 | | 183. | W.P. No.29004/2013 |

ADDITIONAL NOTE

Muhammad Farrukh Irfan Khan J.--I have gone through the detailed and well-reasoned judgment authored by my learned brother Syed Mansoor Ali Shah J. While I fully concur with the judgment, I feel the necessity of supplying an additional note, in view of the peculiar circumstances, I find myself in.

1. I was part of the learned Division Bench in the Pakistan Peoples' Party case, wherein Short Order was announced on 07.11.2013 holding, inter alia, that the Government of Punjab was lawfully justified to carryout delimitation of Union Councils and Municipal Committees in Punjab. Subsequently, Orders and Notifications of the Delimitation Authority and Delimitation Officers, respectively, were challenged in a large number of writ petitions. These petitions highlighted gross irregularities and illegalities committed by the Punjab Government in exercise of its powers under the Punjab Local Government Act, 2013. As explained in the Judgment of my learned brother, these cases were referred to a larger Bench by the Hon'ble Chief Justice of which I also was a Member.

2. During the course of hearing of the Larger Bench, I realized that certain constitutional and legal aspects of the case had not been argued before the learned Division Bench besides proper assistance was also not rendered. I tried to guard the view taken by the learned Division Bench as reflected in the Short Order and explored every possible avenue to seek an endorsement of the earlier view reflected therein. However, I came to the conclusion that the earlier view taken by me while being a Member of the learned Division Bench could not be sustained in view of the compelling constitutional and legal position, which emerged before the Larger Bench and has now been elaborately discussed in the Judgment of my learned brother.

3. Needless to reiterate that I am bound to protect and preserve the Constitution and to endeavour to decide the lis before me justly, fairly and impartially. I, therefore, feel that the view expressed by the Larger Bench must be yielded to in the larger interest of the community and for upholding the mandate of the Constitution.

(R.A.) Order accordingly

[1]. Benjamin Constant--The Liberty of the Ancients compared with that of the Moderns (1819) (see Stephen Breyer--Active Liberty p.4).

[2]. Scheduled for 30th January, 2014.

[3]. The constitutionality of Sections 8 and 9 of the Act has been specifically agitated in W.P. No. 33581/2013. While vires of Section 10-A of the Act has been challenged in W.P. No. 33581/2013, W.P. No. 33573/2013 and W.P. No. 33574/2013.

[4]. Order dated 13.12.2013 passed in W. P. No. 15033-2013 (emphasis supplied).

[5]. Paras 3, 5 & 6 of Order dated 20.12.2013 passed in W.P. No. 31986-2013.

[6]. The constitutionality of Sections 8 and 9 of the Act has been specifically agitated in W.P. No. 33581/2013. While vires of Section 10-A of the Act has been challenged in W.P. No. 33581/2013, W.P. No. 33573/2013 and W.P. No. 33574/2013.

[7]. as Per Ajmal Mian, J in Sardar Farooq Ahmed Khan Leghari and others vs. Federation of Pakistan and others (PLD 1999 SC 57).

[8]. Constitution (Eighteenth Amendment) Act, 2010 (10 of 2010) (w.e.f. 19.4.2010).

[9]. Short Order dated 07.11.2013 passed in W.P.No. 23040/2013.

[10]. The briefs of the amici curiae have been placed on the record as AC/1 to 5.

[11]. Judicial Review of Public Actions, Justice (R) Fazal Karim, volume 2 p.946.

[12]. ibid p.494.

[13]. ibid p.494.

[14]. Anisminic, Ltd. V. The Foreign Compensation Commission and another [1969] 1 All E.R. 208 at 212-213.

[15]. Attorney General v. Thomas D'aarcy Ryan [1980] A.C.718 at 730 (also see R v. Secretary of State for the Home Department exparte Fayed & another [1997] 1 ALL ER 228).

[16]. R v. Secretary of State for the Home Department, ex parte Fayed and another [1997] 1 All ER 228).

[17]. which is subject to Article 140A of the Constitution.

[18]. Mittal - Interpretation of Taxing Statutes.

[19]. Clause 3.2.1 - Chapter 7 Human Rights in the Administration of Justice- A Manual of Human Rights for Judges, Prosecutors and Lawyers. United Nations, 2003 p.258.

[20]. Aharon Barak - The Judge in a Democracy. Princeton. p.23 (emphasis supplied)

[21]. Donald P.Kommers, et al - American Constitutional Law 3rd Ed. p.385 (emphasis supplied)

[22]. See Article 2A.

[23]. Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473 at 666). (emphasis supplied)

[24]. Stephen Breyer-Active Liberty-Interpreting Our Democratic Constitution. p.3.

[25]. Benjamin Constant -- The Liberty of the Ancients compared with that of the Moderns (1819) (also see in Stephen Brayer -- Active Liberty p.4).

[26]. Stephen Breyer-Active Liberty -- p.15.

[27]. Lourens W. H. Ackermann- Equality and Non Discrimination-Some Analytical Thoughts -- The Dignity Jurisprudence of the Constitutional Court of South Africa (volume-1) p.24.

[28]. The Dignity Jurisprudence of the Constitutional Court of South Africa- vol-1, p.79.

[29]. 11th August, 1947.

[30]. A.K.Brohi-Fundamental Law of Pakistan. p.938.

[31]. discussed later in the judgment.

[32]. Ibid.

[33]. Sachs J in August vs Electoral Commission [1999 (3) SA 1 (CC)] (also in The Strange Alchemy of Life and Law by Albie Sachs p/122).

[34]. Law and the Electoral Process by H. F. Rawlings page 73.

[35]. Unanimously adopted by the Inter-Parliamentary Council at its 154th session (Paris, 26 March 1994) http://www.ipu.org/cnl-e/154-free.htm

[36]. Section 19(3).

[37]. National Unity Election Case (Germany 1990), 82 BverfGE 322 (ref: American Constitutional Law, Donald P.Kommers et al, (third edition. p.420).

[38]. Ronald Dworkin, A Bill of Rights for Britain 35-36 (1990) [see Barak – Judge in a Democracy p.25]

[39]. American Constitutional Law, Second Edition, Laurence H. Tribe. p.1062.

[40]. James P. Wesberry, Jr., et. Al. v. Carl E. Sanders, etc., at al. [376 US 1, 17 (1964)] (see American Constitutional Law, second Edition, Laurence H. Tribe. p.1062).

[41]. American Constitution Law: 2nd Edition; p. 1064.

[42]. James H. Gray et al., v. James O'Hear Sanders [372 US 376 (1963)] (see: Tribe, American Constitution Law: (second edition. p.1064).

[43]. B.A. Reynolds, etc., et al., v. M.O. Sims et al. [377 US 533 (1964)].

[44]. 106 S.Ct. 2797 (1986) as per Justice White. [See Tribe-American Constitutional Law. p. 1081)

[45]. B.A. Reynolds, etc., et al., v. M.O. Sims et al. [377 US 533 (1964)]

[46]. James P. Wesberry, Jr., et. Al. v. Carl E. Sanders, etc., at al. [376 US 1, 17 (1964)] (see American Constitutional Law, second Edition, Laurence H. Tribe. p.1062).

[47]. AIR 1986 SC 434.

[48]. AIR 2009 SC 3278.

[49]. echoed in Nawaz Sharif case (ibid) p.666.

[50]. per Sh Azmat Saeed J. in Imran Khan and others v. Election Commission of Pakistan and others (PLD 2013 SC 120) (para 24).

[51]. Oxford - Concise Dictionary of Politics. p.23.

[52]. Section 9.

[53]. "Gerrymandering", in US politics, means the drawing of the boundaries of electoral districts in a way that gives one party an unfair advantage over its rivals. The term is derived from the name of Governor Elbridge. Gerry of Massachusetts, whose state administration enacted a law in 1812, dividing the state into new senatorial districts. The law consolidated the Federalist Party vote in a few districts and thus gave disproportionate representation to Democratic Republicans. The outline of one of the districts, which was thought to resemble a salamander, gave rise, through a popular application of the Governor's name, to the term "gerrymander". Gerrymandering has been condemned because it violates two basic tenets of electoral appointment – compactness and equality of size of constituencies. A US Supreme Court ruling of 1964 stated that districts should be drawn to reflect substantial equality of population. However, using studies of regional voting behaviour, the majority parties in certain state legislatures continue to set district boundaries along partisan lines without regard for local boundaries or even contiguity. For example, in some states representatives from rural and small town districts seek to limit the representation of more densely populated urban centres. Sometimes gerrymandering is defended as the only means of securing any representation for minority groups. It is argued that violating local boundaries in drawing districts is preferable to denying a politically cohesive group any voice in state government, Encyclopedia Britannica, vol 5 (Micropaedia), fifteenth Edition, 1997, p 222. (see VS Rana and S K Mediratta -- How India votes, Election Laws, Practical, Procedure, (second Edition. p.238-240).

[54]. Oxford - Concise Dictionary of Politics. p.221.

[55]. Donald P.Kommers et al. American Constitutional law - p.390.

[56]. Dictionary.com

[57]. Words & Phrases -- Permanent Edition- West. vol-30 p.484.

[58]. The Major Law Lexicon -- 4th edition. p.4825.

[59]. Dictionary.com.

[60]. The Major Law Lexicon -- 4th edition. p.1377.

[61]. Dictionary.com

[62]. The Major Law Lexicon -- 4th edition. p.3092.

[63]. dictionary.com.

[64]. State of Gujarat v. Jamnadas G. Pabri and others etc. (AIR 1974 SC 2233).

[65]. emphasis supplied.

[66]. This does not discount the time provided between the two stages of election to redress the grievance, if any, arising out of incorrect electoral rolls or wrong delimitation of constituencies.

[67]. Law and the Electoral Process by H. F. Rawlings page 2. (emphasis supplied)

[68]. p.165.

[69]. Article 213(2).

[70]. Article 218(2)(b).

[71]. Belinda Havenga -- The Restructuring of Local Government with Special Reference of Tshwane (Role and Purpose of Local Government Chapter-3) - University of Pretoria, October 2002.

[72]. Chapter V -- Local Government Elections (sections 18-63)

[73]. see Part-III of the First Schedule to the Act.

[74]. Degree of neutrality is debatable, as in the past the government has constituted Election Authorities comprising senior civil servants.

[75]. There are exceptions to this also and superior Courts have interfered inspite of the bar contained in Article 225 of the Constitution - see Rao Naeem Sarfraz v. Election Commission of Pakistan through Chief Election Commissioner and others (PLD 2013 Lahore 675).

[76]. Reference has been made to these words in the following judgments but not fully in the context discussed here: Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and others (PLD 2012 SC 681), Sheikh Rashid Ahmed v. Government of Punjab and others (PLD 2010 SC 573), Imran Khan and others v. Election Commission of Pakistan and others (PLD 2013 SC 120) and Workers' Party Pakistan through General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2013 S.C 406).

[77]. Amirzada Khan, M.N.A. v. The Chief Election Commissioner and 2 others (PLD 1974 Lahore 178).

[78]. Haji Muhammad Afzal & others vs. Mian Meraj Din and others (PLD 1967 Lahore 689).

[79]. Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396).

[80]. Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 SC 1066).

[81]. A.K.Brohi-Fundamental Law of Pakistan-1958 p.122.

[82]. per M.R.Kayani, CJ

[83]. p.295.

[84]. The words "organize, conduct and arrange" have been considered, in a slightly different sense, for the first time Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and others (PLD 2012 SC 681), Imran Khan and others v. Election Commission of Pakistan and others (PLD 2013 SC 120) and Workers' Party Pakistan through General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2013 S.C 406).

[85] http://www.elections.org.nz/voting-system/electorates/electorate-boundaries-and-review/representation-commission. Last visited on 02.01.2014.

[86] http://www.lgc.govt.nz/. Last visited on 02.01.2014.

[87] http://laws-lois.justice.gc.ca/eng/acts/E-3/index.html. Last visited on 02.01.2014.

[88] Part V, sections 171 to 179 of the Municipal Act, 2001. http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_ 01m25_ e.htm#BK181. Last visited on 13.01.2014.

[89] http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_01m25_e.htm#BK181. Last visited on 13.01.2014.

[90] http://www.aec.gov.au/FAQs/Redistributions.htm. Last visited on 02.01.2014.

[91] http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/. Last visited on 02.01.2014.

[92] http://www.austlii.edu.au/au/legis/nsw/num_act/lga1993n30209.pdf. Last visited on 02.01.2014.

[93] http://www.dlg.nsw.gov.au/dlg/boundariescommission/saindex.asp. Last visited on 02.01.2014.

[94] http://www.austlii.edu.au/au/legis/nsw/num_act/lga1993n30209.pdf. Note: As per section 263(7) of the Act ibid, the Supreme Court of NSW cannot interfere into the orders of the LGBC (ouster clause). In Australia, SC of NSW means the highest court of the province. However, the NSW Land and Environmental Court has issued a restraint order keeping in view section 676(1) of the Act (ibid) on the grounds that the act of the LGBC, if not restrained, will cause breach of the Act. See South Sydney Council v Local Government Boundaries Commission and Anor. [2001] NSWLEC 280. Last visited on 02.01.2014.

[95] http://www.lgbce.org.uk/__documents/lgbce/guidance-policy-and-publications/guidance/introduction-to-the-commission-and-electoral-reviews.pdf. Last visited on 03.01.2014.

[96] See Schedule 1 of the Local Democracy, Economic Development and Construction Act 2009. http://www.legislation.gov.uk/ukpga/2009/20/pdfs/ukpga_20090020_en.pdf. Last visited on 03.01.2014.

[97] http://www.legislation.gov.uk/ukpga/2009/20/pdfs/ukpga_20090020_ en.pdf. Last visited on 03.01.2014.

[98] http://www.njredistrictingcommission.org/aboutredistricting.asp. Last visited on 03.01.2014.

[99] http://www.njredistrictingcommission.org/constitutionbylaws.asp. Last visited on 03.01.2014.

[100] Ibid.

[101] http://www.tompkinscountyny.gov/files/redistricting/RESOLUTION %20No.%2049%20-%20Creation%20of%20an%20Independent%20 Redistricting%20Commission.pdf. Last visited on 13.01.2014.

[102] http://www.tompkinscountyny.gov/redistricting/commission. Last visited on 13.01.2014.

[103] http://www.nassaucountyny.gov/TDAC/index.php. Last visited on 13.01.2014.

[104] http://www.kingcounty.gov/operations/districting.aspx. Last visited on 13.01.2014.

[105] http://records.co.hawaii.hi.us/Weblink8/DocView.aspx?dbid=1&id= 14020. Last visited on 13.01.2014.

[106] Chapter 5 of the Election Act of the Kingdom of Bhutan, 2008. http://www.election-bhutan.org.bt/wp-content/uploads/2013/04/ElectionActEnglish.pdf. Last visited on 13.01.2014.

[107] http://www.election-bhutan.org.bt/wp-content/uploads/2013/04/ElectionActEnglish.pdf. Last visited on 13.01.2014.

[108] Chapter 5 of the Election Act of the Kingdom of Bhutan, 2008. http://www.election-bhutan.org.bt/wp-content/uploads/2013/04/ElectionActEnglish.pdf. Last visited on 13.01.2014.

[109] http://www.constitution.org/cons/india/p15324.html. Last visited on 13.1.2014.

[111]. President‘s Order No.18 of 1959 dated 27th October 1959.

[112] Act XVI of 1965 dated 14.08.1965.

[113] Act VII of 1964 dated 26.08.1964.

[114] Act IV of 1964 dated 18.04.1964.

[115] Ordinance XIII of 1970 dated 10.07.1970.

[116] President‘s Order 3 of 1970 dated 22.04.1970.

[117] Delimitation of Constituencies Order, 1970 (PLD 1970 Central and Provincial Statutes).

[118] Act No.XXXIV of 1974 dated 08.05.1974.

[119] Act No.XXI of 1974 dated 22.04.1974.

[120] Punjab Ordinance No.VI of 1979 dated 31.07.1979.

[121] Notified vide Notification dated 6th August 1979.

[122] Act No.XVIII of 2013 dated 23.08.2013.

PLJ 2014 Lahore 472

Present: Ijaz Ahmad, J.

M/s. GEO POWER ASSOCIATES--Petitioner

versus

S.N.G.P.L. etc--Respondents

W.P. No. 483 of 2014, decided on 10.1.2014.

Constitution ofPakistan, 1973--

----Arts. 3, 9, 18, 25 & 199--Constitutional petition--Un-interrupted and continuous supply of N.G.--Encouraging and promoting use of environment friendly fuel and license for storage and dispensing of N.G--Policy for load management supply of N.G. is regulated by bilateral agreement between petitioner and SNGPL--Terms and conditions of contract executed between parties--Supply of gas is always subject to its availability--Validity--It cannot be said that load management ordered by NADRA is beyond their authority--Rights of petitioner and other citizens under Arts. 4, 9, 18 and 25 of Constitution are not unfettered--Rights and liberties of individuals are always trimmed and regulated by law as made by State--Petitioner and other CNG Stations cannot ask for continuous supply of gas though not available--They cannot be allowed to select their own course of action by putting their meter station under their own locks, thus, creating hindrance in operational activities and by violating gas holidays--Petition was dismissed. [P. 476] A

Mr. MuhammadYousaf Javaid Phaphra, Advocate for Petitioner.

Mr. Umer Sharif, Advocate/Legal Advisor for Respondents on Court's call.

Date of hearing: 10.1.2014.

Order

In the early hours of the day, the case was called up for hearing. A copy of this petition was handed over to the learned counsel for Respondents No. 1 to 4.

1. Through this constitutional petition, it is prayed as follows:--

"It is therefore, most humbly and respectfully prayed that instant writ petition may kindly be accepted and order dated 27.12.2013 passed by this Hon'ble Court in W.P. No. 33596/2013, be implemented in its letter and spirit by allowing to start his operation and to carry on with uninterrupted supply of gas specifically directing the respondents and they be restrained to interfere with the distribution/supply of gas to the consumer by starting the operation of the same and by restraining to remove the apparatuses and meter and to seal the premises of the station of the petitioner.

By summoning the Respondent Nos. 2 and 3 by giving full doze of punishment being contemnors of the order of this Hon'ble Court.

It is further prayed that during the pendency of the titled writ petition the respondents may very kindly be restrained to remove the apparatuses, meter of the CNG Station and be restrained to seal the premises of the said station with uninterrupted supply of the gas to the station of the petitioner.

It is also prayed that during the pendency of the titled writ petition operation of the notice dated 22.12.2013 issued by the Respondent No. 3 under the order of Respondent No. 2 under the shield of (impugned) schedule/policy may very kindly be suspended.

Any other relief which this Hon'ble Court deems fit and proper may also be granted to the petitioner".

1. The learned counsel for the petitioner at the very outset, seeks to withdraw the prayer regarding the summoning of Respondents No. 2 and 3 and proceeding against them as contemnors.

2. The learned counsel appearing on behalf of the SNGLP submits that he has sought instructions from the respondents. He opts not to file reply to this petition and to confine himself to law points only. This petition is admitted to a regular hearing. It will be treated, as a pakka case. Both the parties are ready to argue the case.

3. It is averred in this petition and is so argued that the gas station was set up by the petitioner under the policy of the Government that promoted the use of environment friendly fuel, by investing a huge amount of money and under a valid license issued by the OGRA for storage and dispensing of the natural gas (N.G). He impugns the policy of the respondents for `Load Management' and subjecting the petitioner to gas holidays. Contends that the said policy is violative of the provisions of Articles 4, 9, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Further argues that on the insistence of the petitioner for un-interrupted and continuous supply of N.G, the respondents are adamant on removing the apparatus and meter of CNG and sealing the premises.

4. On the other hand, the learned counsel appearing on behalf of the SNGPL contends that he admits that the Government had been encouraging and promoting the use of environment friendly fuel and that there is a license for storage and dispensing of the N.G. in favour of the petitioner and that by the population explosion and the policy of the State Bank of Pakistan to advance loans for the purchase of vehicles, the number of the vehicles on the roads has multiplied many times over but the gas at the disposal of the respondents is in limited quantity which requires the load management. It is further contended that even if OGRA has issued a licence in favour of the petitioner, the supply of N.G. is regulated by a bilateral agreement between the petitioner and SNGPL, which provides for Load Management and that the available gas has to be supplied to all the consumers but according to the order of preference, keeping in view the nature of the needs of each class of consumers and the availability of the alternative and suitable sources of energy. The learned counsel for the respondents defends the impugned notice dated 22.12.2013 on the ground that the petitioner has no right to create hindrance in the operational activities of respondents by securing the consumer meter station with his own lock.

5. Heard. Record perused.

6. The license issued by the OGRA allows the petitioner to engage in the purchase, compression, storage and dispensation of the natural gas. The supply of the N.G. is the subject matter of a bilateral written agreement between the petitioner and the respondent SNGPL, whose existence the petitioner does not deny but opts to withhold it, rendering himself prone to an adverse presumption. The quantity of the gas is limited and is decreasing by every passing day. It will deplete unless new sources are tapped. The number of its users is unlimited. The domestic users, the industrial concerns using the gas as raw material; the mega concerns engaging a large number of the human resource and the CNG Stations, all are craving for the N.G.

7. Each passing day, adds to the number of the consumers by population explosion, opening of new sectors requiring the gas and switching over from other fuels to N.G., a more efficient source of energy. This situation calls for equitable distribution, load management and rationing keeping in view the intensity and nature of the needs of each sector and suitability of the alternative energy for each of them. The need of the N.G. especially in case of domestic consumption increases many times over during the winter season. Unless, the alternatives are made available to the domestic users, the supply of natural gas cannot be refused to them. Otherwise the results will be drastic. The kerosene oil is environment unfriendly and expensive. The day at home will start with quarrels carrying the same mood to the roads, schools, offices, markets, factories and other places of business. Because of burning the wood as fuel at home, the country, that in the year 1947 within its present territorial limits, had 6% of its area under forest, has today a reduced area close to 4% of the total area under forest. The speed of deforestation to meet with the need for fuel will accelerate unprecedently. We are already losing fast the antique juniper forest in Ziarat, Baluchistan and the rare mangroves in the coastal areas of the Sindh. In high temperature, the seeds will refuse to germinate and the seed-lings to subsist. The land erosion will be an added catastrophe. The loss will be colossal and irreversible. Lets ward it off and give the domestic user of N.G., the priority first. The natural gas (chemical formula C2 H4) is used as an indispensible raw material for the fertilizer sector of the industry. The Hydrogen splitted from N.G. is the component of Amonia. In view of the intensive cultivation, we are practising, the refertilization and revigourisation of lands required after each harvest cannot be ensured without the use of chemical fertilizers. The edible oil industry makes precious use of Hydrogen splitted from N.G. to Hydrogenizes the oil to transform it into Ghee. The mega industrial concerns, may not be using the N.G. as a raw material or for adding value to a product, but employ a substantial segment of human resource giving them the purchasing power which in the end makes the mare go. The 2nd, 3rd and 4th priority in supply of N.G. has to be given to these three sectors of the national industry. The motorist in case of non-availability of the gas may switch over to petrol which may be a bit more expensive. The motorist also has a choice of public transport which may be a bit less convenient but is less expensive at the same time. Resort to public transport will decrease the pressure on the roads. In the order of preference, no doubt CNG stations entail all other N.G users.

8. SNGPL vide letter dated 10.12.2013 had called upon the petitioner to cooperate and to observe the gas holidays so that the former could fulfill the demand of all three sectors of consumers of the gas. Instead of cooperating with the respondent, the petitioner locked the consumer meter station with his own lock which is server violation of rules and regulations of SNGPL and the terms and conditions of the contract executed between the petitioner and SNGPL. The supply of the gas is always subject to its availability. Reliance is placed on (2011 YLR 1491) titled "Messrs Mian CNG filling Station through Managing Partner vs. SNGPL and others" and (2012 YLR 1529) titled "Messrs Shandar Petroleum/CNG and 46 others vs. Federation of Pakistan through Ministry of Petroleum and 2 others" wherein the policy of the respondents regarding supply of the N.G. to its consumers by load management has been declared intra vires of the law.

9. We have to organize ourselves and make efficient use of the available limited sources of energy. We are facing the energy crisis besides the economic crisis, both are corelated. A formal declaration of the situation and a resolve to cope with it is the only way out. In Sir Winston Churchill's words, we have to toil, sweat and bleed together in hard times. The load management is the need of the day. In these circumstances, it cannot be said that the load management ordered by the respondents is beyond their authority. The rights of the petitioner and other citizens under Articles 4, 9, 18 and 25 of the Constitution of Islamic Republic of Pakistan 1973 are not unfettered. The rights and liberties of the individuals are always trimmed and regulated by the law as made by the State. The petitioner and the other CNG stations cannot ask for continuous supply of gas though not available. They cannot be allowed to select their own course of action by putting their meter station under their own locks, thus, creating hindrance in operational activities and by violating the gas holidays. In this view of the matter, I do not see any merit in this petition. It is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 476 [Bahawalpur Bench Bahawalpur]

Present: Sadaqat Ali Khan, J.

AISHA BIBI--Petitioner

versus

ZAFAR IQBAL--Respondent

C.R. No. 551-D of 2001/WBP, heard on 18.2.2014.

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

----S. 22--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Suit for specific performance of agreement to sell--Sale deed was not executed register due to land reform litigation--Agreement to sell was not executable document was not signatory of document--Witness was not believable as neither proved through oral evidence nor produced any document--Evidentiary value--Validity--Alleged marginal witnesses of document were mentioned in document who allegedly signed same though who were not produced due to unavoidable circumstances but plaintiff could not sign document--Such thing itself creates doubt regarding preparation of agreement to sell--It is settled principle of law that unilateral agreement not signed by vendee was not mutually enforceable and no effect could be granted--It does not constitute a valid contract because offer and acceptance when reduced into writing and one of parties to contract does not sign or thumb mark same how it can be termed as valid contract enforceable by law--Alleged agreement to sell was on simple paper of some diary and it was not on stamp paper--It was to be impounded by Court when presented in evidence without stamp duty, therefore, it has little evidentiary value. [P. 480 & 482] A & B

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

----S. 115--Civil revision--Suit for specific performance of agreement to sell--Agreement to sell on basis of plaintiff predecessor in interest of respondent--No witness of transaction--Contradiction between plaint and statement of plaintiff--Sale deed was not executed register due to land reform litigation--Validity--Litigation on basis of inheritance mutation regarding disputed property was started by filing a suit in Civil Court--Such explanation was not sufficient bringing suit within time as plaintiff while appearing before trial Court explained delay for filing suit due to some family dispute--So plaintiff despite knowledge of said litigation remained mum for so many years and had not joined litigation with his version that he had purchased some share measuring and he was entitled for same--If agreement to sell was a genuine document then there was no hurdle for execution of sale-deed in favour of plaintiff within his life time--Judgment and decree of Addl. District Judge was a result of misreading, non reading of evidence and was without reasoning and was based on no evidence--Findings of first appellate Court was liable to be set aside. [P. 483] C, D, E, F & G

Mr. Jam Muhammad Sajjad, Advocate for Petitioner.

Mr. M.A. Rasheed Chaudhry, Advocate for Respondent.

Date of hearing: 18.2.2014.

Order

The instant civil revision has been filed by the present petitioner Mst. Ayesha Bibi against the judgment and decree dated 21.12.2000 passed by Additional District Judge, Bahawalpur according to which appeal of the plaintiffs/respondents was accepted and their suit was decreed.

1. Brief facts are that Muhammad Nawaz predecessor-in-interest of Respondent Nos. 1 to 11 filed suit for specific performance of agreement to sell dated 16.05.1960 (Exh.P1) on 07.10.1989 against the petitioner and Respondent Nos. 12 to 19 with the assertion that Sardar Ahmad Owaisi father of the present petitioner and predecessor-in-interest of Respondent Nos. 1 to 11 had entered into an agreement to sell of the land measuring 1 Kanal from Rectangle No. 552/6 against Rs.500/- and after receiving the sale consideration Sardar Ahmad Owaisi delivered possession to Muhammad Nawaz plaintiff in 1960. It is further stated that late Sardar Ahmad Owaisi could not execute registered sale-deed due to land reform litigation which were pending before various forums. It is stated in the plaint that Sardar Ahmad Owaisi died in 1977 and his inheritance mutation was not attested and Defendant No. 4 Mst. Abida Bibi sought the assistance of the Court in this regard as a result of which inheritance Mutation No. 5608 and 750 were attested in November 1985. Mst. Jamila Wd/O Sardar Ahmad Owaisi was also died. It is stated that Muhammad Nawaz plaintiff called upon the defendant to honour the agreement and execute registered sale-deed in his favour but they declined to do so. Present petitioner Mst. Ayesha Bibi being Defendant No. 1 and Mst. Najam-un-Nisa Respondent No. 12 being Defendant No. 2 contested the suit whereas other defendants were proceeded against ex-parte. However, Respondent No. 12/defendant Mst. Najam-un-Nisa conceded the claim of the plaintiff while present Petitioner/Defendant No. 1 has contested the same and submitted written statement, raising preliminary objection by stating that suit is hopelessly time barred. The alleged agreement has no legal value and further stated that plaintiff is a tenant and suit land is not under the possession of the plaintiff on the basis of alleged agreement to sell.

2. Out of the divergent pleadings of the parties following issues were framed by the trial Court:--

ISSUES

1. Whether the suit is time barred? OPD

2. Whether the agreement to sell has no legal value? OPD

3. Whether Sardar Ahmad Owaisi the predecessor-in-interest of the defendants had executed the agreement to sell in dispute? OPP

4. Whether the plaintiff is a tenant and not owner of the property in dispute? OPD

5. Whether the defendant is entitled to recover special costs under Section 35-A of, CPC? OPD

6. Relief.

7. Plaintiff produced Muhammad Ramzan as PW-1, Muhammad Shafi PW-2, Ghulam Owais PW-3, Imam Mujtaba PW-4, Muhammad Nawaz Qureshi PW-5, Muhammad Rafi-ud-Din Shah PW-6, Babu Din PW-7, Muhammad Amin PW-8 and himself appeared as PW-9 and produced in documentary evidence disputed agreement to sell as Exh.P1, decision of arbitration counsel for permission of second marriage dated 29.05.1975 Exh.P2, rent deed dated 26.01.1981 pertaining to Babu Din PW-7 Exh.P3, another rent deed regarding Shops No. 7 and 8 dated 21.01.1988 Exh.P4, a third rent deed dated 09.08.1984 Exh.P5, 4th rent deed pertaining to Muhammad Amin PW-8 Exh.P6, attested copy of the order of Additional Commissioner dated 09.08.1971 Exh.P3, attested copy of order of Additional Commissioner Bahawalpur dated 29.09.1971 Exh.P14, attested copy of order of Commissioner dated 19.05.1973 Exh.P15 and closed the evidence. On the other hand Haji Faqeerullah husband of the present petitioner being attorney of the petitioner appeared as DW-1 and produced Abdul Ghaffar as DW-2 who produced registered sale-deed executed by Mian Sardar Ahmad in his favour dated 14.07.1979 as Exh.D2. After conclusion of the trial, learned trial Court heard the arguments from both sides and thereafter dismissed the suit of the plaintiff predecessor of Respondent No. 1 to 11 who preferred an appeal before the District Judge, Bahawalpur which was entrusted to Additional District Judge, Bahawalpur and the same was accepted on 21.12.2000 in result of which suit of Respondents No. 1 to 11 was decreed. Hence, this civil revision.

8. Learned counsel for the petitioner submitted that judgment and decree dated 21.12.2000 passed by learned Additional District Judge, Bahawalpur is against law and facts on the file and is liable to be set aside. It is further submitted that plaintiff has failed to prove his case and suit was rightly dismissed by the learned trial Court. It is further submitted that alleged agreement to sell Exh.P1 has not been proved by the plaintiff and it is a forged document. It is further submitted that alleged agreement to sell Exh.P1 is not executable document as Muhammad Nawaz plaintiff is not signatory of the document. It is further submitted that alleged agreement was allegedly executed on 16.05.1960 whereas suit was filed by the plaintiff Muhammad Nawaz on 07.10.1989 and same is hopelessly time barred. It is lastly submitted that this civil revision may be accepted and the judgment and decree dated 21.12.2000 passed by Additional District Judge, Bahawalpur may be set aside and judgment and decree dated 05.12.1995 of the trial Court may be restored.

9. On the other hand learned counsel for the respondents(plaintiffs) submitted that judgment and decree dated 21.12.2000 of Additional District Judge Bahawalpur is quite legal in which every piece of evidence has been discussed and rightly the appeal of the plaintiffs was accepted and suit was decreed. It is further submitted that due to the land reform litigation suit could not be filed and this fact has been considered by the lower appellate Court and suit of the plaintiff was rightly treated within time. It is further submitted that plaintiff has proved the document i.e. agreement to sell Exh.P1 with solid evidence which was rightly considered by the lower appellate Court by accepting the appeal of the plaintiffs/Respondents No. 1 to 11 and suit was decreed. It is further submitted that possession of the plaintiff on the suit property is admitted and lastly submitted that civil revision may be dismissed.

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

11. Exh.P1 is an agreement to sell on the basis of which Muhammad Nawaz plaintiff predecessor-in-interest of Respondents No. 1 to 11 had filed suit for specific performance of land measuring 1 Kanals from rectangle No. 552 situated within revenue estate of Mauza Khanqah allegedly executed by Sardar Ahmad Owaisi father of the present petitioner. To prove this document Muhammad Nawaz plaintiff produced Muhammad Ramzan as PW-1 who stated that in the year 1960 he was attorney of Sardar Ahmad Owaisi and he was dealing the matter of sale and purchase of the land of Sardar Ahmad Owaisi being attorney and stated that 1 Kanal land in village Khanqah Sharif was sold to Muhammad Nawaz plaintiff against Rs.500/- and the document Exh.P1 in this regard was written by him and his signatures are Exh.P1/1 and further stated that Sardar Ahmad Owaisi had signed before him which is Exh.P1/2 and stated that sale price Rs.500/- in his presence Sardar Ahmad had received. In cross-examination he stated that his eye side is weak and he cannot read Exh.P1 and stated that price of the land was received by him and thereafter he paid the same to the owner. He admitted that he has no power of attorney of Sardar Ahmad Owaisi and further stated that he had returned the power of attorney after termination from the service. He further stated that he remained as clerk of an Advocate. I think that this witness is not believable as he neither proved himself as attorney of Sardar Ahmad Owaisi through oral evidence nor produced any document in this respect and he himself admitting on one hand that he had received the sale price of the suit land in the cross-examination and on the other hand in same breath stated that he paid the same to the owner. It is not acceptable that in presence of original owner Sardar Ahmad Owaisi why Muhammad Nawaz paid sale price to this witness Muhammad Ramzan and further this witness has not been shown in agreement to sell Exh.P1 as attorney of Sardar Ahmad Owaisi and nowhere it is mentioned in Exh.P1(agreement to sell) that Muhammad Ramzan firstly received the sale price and then handed over the same to Sardar Ahmad Owaisi. PW-9 Haji Muhammad Nawaz himself appeared as a witness and stated that he had purchased land measuring 1 Kanal from Sardar Ahmad Owaisi against Rs.500/- that he had paid sale price to Ramzan Munshi PW-1 who thereafter paid the same to Sardar Ahmad Owaisi in his presence. He further stated that the document Exh.P1 agreement to sell was written by Ramzan Munshi PW-1 in his presence but it is very strange that Mian Ghulam Mustafa, Abdul Ghani and Allah Wasaya alleged marginal witnesses of document are mentioned in the document Exh.P1 who allegedly signed the same though who were not produced due to unavoidable circumstances but why the plaintiff could not sign the document Exh.P1. This thing itself creates doubt regarding preparation of agreement to sell Exh.P1. It is settled principle of law that unilateral agreement not signed by the vendee was not mutually enforceable and no effect could be granted. Reliance is placed on case titled "Mst. Ghulam Hamid vs. Kh. Abdul Rehman and others" 2010 SCMR 339 in which case Supreme Court of Pakistan observed as under:--

"A perusal of the deed would indicate that it was signed by the appellant Mst. Ghulam Hamid alone and not by any of the three vendees. As evident from the contents of the deed, it created rights and liabilities on both sides. Had there been an occasion for the owner-lady to bring a suit for specific performance, she would not have succeeded because the vendees had not signed the deed so as to accept any of the liabilities. The circumstances under which the contract is made are such that the present plaintiffs are given an unfair advantage over the defendant. Section. 22 of the Specific Relief Act, 1877 clearly provides that in such circumstances, the discretion is not to be exercised in favour of the plaintiffs. For ready reference Section 22 (clause-I) is reproduced as follows:

1. Discretion as to decreeing specific performance.---The jurisdiction to decree specific performance is discretionary, and, the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.

The following are cases in which the Court may properly exercise a discretion not to decree specific performance:

1. Where the circumstances under which the contract is made are such to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff’s part".

2. This Court in Arif Shah VS. Abdul Hakeem Qureshi PLD 1991 SC 905(e) held that the illustrations, given in S.22 are a few instances where discretion should not be exercised in favour of specific performance. Rather, these, illustrations were held to be not exhaustive and the Courts were at liberty, in the circumstances of each case, to visualize any other circumstances as falling within the purview of S.22 of Specific Relief Act. So far as the case in hand is concerned, it is directly and squarely hit by illustration I of Section 22.

3. The evidence shows that the three plaintiffs belonging to Sialkot and having the blessings of local property dealers brought a lady-owner around in such a manner so as to take unfair advantage. They kept themselves immune from any future claim of the opposite party by not signing the deal at all. It is admitted in the evidence that the plaintiffs had tempered with the document. It is admitted in the evidence that the document was executed by the lady at Islamabad. It is surprising to observe that it was attested on 18.6.1986 by an Oath Commissioner at Sialkot, in the absence of the deponent executant. The plaintiffs have, thereby, resorted to forgery as well. We are of the firm view that in the very construction of the agreement, it was not mutually enforceable and hence no decree of specific performance could be granted.

4. As a sequel to the above discussion, we hold that the unilateral agreement not signed by the respondents was not mutually enforceable; that, no decree could be granted because of the withdrawal of NOC; that, it were the respondents who malafidely exploited the situation, tempered with the deed, forged the same through an Oath Commissioner in the absence of executant, failed to perform within 15 days despite the positive knowledge of the NOC and above all were guilty of misrepresentation about the pay order which they had already withdrawn. Resultantly, the appeal is accepted, the impugned judgment dated 09.07.1999 of the learned High Court is set aside and that dated 31.07.1993 of the learned Trial Court is hereby restored."

5. In view of above in my view it does not constitute a valid contract because offer and acceptance when reduced into writing and one of the parties to the contract does not sign or thumb mark the same how it can be termed as a valid contract enforceable by the law. Moreover, alleged agreement to sell Exh.P1 is on a simple paper of some diary and it is not on a stamp paper. It was to be impounded by the Court when presented in evidence without stamp duty, therefore, it has a little evidentiary value. In this regard reliance is placed on case titled "Faqeer Bakhsh VS. Khan Muhammad" 2013 MLD 955. PW-2 is Muhammad Shafi. He simply stated that he has identified the signatures of his father Haji Allah Wasaya on the document Exh.P1 and he has not uttered a single word regarding agreement to sell. Likewise PW-3 Ghulam Owais stated that plaintiff had purchased suit land from Sardar Ahmad Owaisi and he is not the witness of the transaction. So his evidence is discarded being hearsay evidence. PW-4 Imam Bakhsh simply stated that plaintiff constructed some shops at the Lorry Adda of Khanqah Sharif. Muhammad Nawaz Qureshi PW-5 stated that he has not brought record of Union Council Khanqah Sharif pertaining to year 1960 which was burnt in the year 1988. Muhammad Rafi-ud-Din PW-6 simply stated that he has brought the record of union council pertaining to application titled "Nazar Muhammad VS. Tasleeman Khatoon" for second marriage. Babu Din PW-7 stated the same fact. So plaintiff could not prove the document Exh.P1 agreement to sell. PW-9 Muhammad Nawaz plaintiff stated in Para No. 3 of the plaint that due to land reform litigation Sardar Ahmad Owaisi could not execute registered sale-deed in his favour and further stated in Para No. 4 of the plaint that Sardar Ahmad Owaisi died in the year 1979. Thereafter litigation on the basis of inheritance mutation regarding the disputed property was started by filing a suit in the Civil Court by Mst. Abida Bibi Defendant No. 4 and thereafter suit was filed. I think that this explanation is not sufficient bringing the suit within time as Muhammad Nawaz plaintiff while appearing as PW-9 before the trial Court explained the delay for filing the suit stated that Sardar Ahmad Owaisi went abroad and due to some family dispute he could not execute registered sale-deed in his favour. So there is glaring contradiction between plaint and the statement of plaintiff PW-9. Further in Para No. 4 of the plaint PW-9 himself admitted that suit between the legal heirs of Sardar Ahmad Owaisi was remained pending filed by Mst. Abida Defendant No. 4 pertaining to the inheritance dispute after the death of Sardar Ahmad Owaisi original owner of the suit property and thereafter that suit was decreed and Civil Court had determined the shares of the legal heirs of Sardar Ahmad Owaisi regarding the suit property. So plaintiff despite knowledge of said litigation remained mum for so many years and had not joined the litigation with his version that he had purchased some share measuring 1 Kanal from the land left by Sardar Ahmad Owaisi through Exh.P1 (agreement to sell) and he was entitled for the same. Further DW-2 Haji Ghaffar produced registered sale-deed Exh.D2 dated 14.07.1979 executed by Sardar Ahmad Owaisi according to which DW-2 Hafiz Abdul Ghaffar had purchased land from Sardar Khan within the revenue state of Khanqah Sharif. So the version of the plaintiff became false as if agreement to sell Exh.P1 was a genuine document then there was no hurdle for execution of the sale-deed by Sardar Ahmad Owaisi in favour of Muhammad Nawaz plaintiff within his life time. Exh.P1 was allegedly executed on 06.05.1960 whereas suit was filed on 07.10.1989 with the delay of about 28 years which is hopelessly time barred. The explanation given by the plaintiff Muhammad Nawaz PW-9 in Para No. 3 and 4 of the plaint as well as in a statement before the trial Court is contradictory and not acceptable and rightly observed by the trial Court that suit of the plaintiff is time barred. The judgment and decree of Additional District Judge Bahawalpur is a result of misreading, non-reading of evidence and is without reasoning and is based on no evidence. This Court is of the opinion that the findings of first appellate Court is liable to be set aside. Reliance is placed on case titled "Brig. (Rtd) Sher Afgan VS. Mst. Shireen Tahir & 6 others" 2010 SCMR 786 in which Supreme Court of Pakistan observed at page 793 as under:

"This by now a well-settled principle of exercise of revisional jurisdiction under S. 115, CPC that if a finding of first Court of Appeal is based on no evidence or is not denuded of its power of interfere with such a finding. This view was reiterated by this Court in Naziran Begum VS. Khurshid Begum 1999 SCMR 1171 wherein at page 1178 it was held as follows:

A finding on a question of fact arrived at by the First Appellate Court which is based on no evidence or is the result of conjectures or fallacious appraisal of evidence on record is not immune from scrutiny by the High Court in exercise of its power under Section 100 or 115, CPC. The learned Judge in Chambers, therefore, rightly reversed the findings of the first appellate Court insofar the execution of the document Exh.P/8 was concerned."

1. For the foregoing reasons this civil revision is allowed and the judgment and decree dated 21.12.2000 passed by the Additional District Judge, Bahawalpur is hereby set aside and judgment and decree dated 05.12.1995 passed by the trial Court is restored.

(R.A.) Revision allowed

PLJ 2014 Lahore 484

Present: Shoaib Saeed, J.

MUHAMMAD AKRAM--Petitioner

versus

MEMBER BOARD OF REVENUE, etc.--Respondents

W.P. No. 1249 of 2013, decided on 28.1.2014.

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

----S. 135--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Application for partitition of land was filed before Naib Tehsildar against wandajaat--Maintainability of writ petition--Admittedly, parties co-owned property which was partitioned and Wandajaat prepared accordingly whereunder mode of partition was made in line with principle of Consolidation and Partition--Though in wanda, some land was given to petitioner which was not contiguous, same was done as petitioner was in possession of said land--Question in respect of land being inferior cannot be raised as it is compactness on which partition is based--Partitioning of agriculture land is to be based on its classification/category--Petitioner also approached Civil Court in that regard but without success--Conclusions made by Revenue Authorities having jurisdiction with regard thereto, based on cogent reasons should not be interfered in constitutional jurisdiction--Concurrent findings of authorities below passed against petitioner were not justified to be re-opened--High Court cannot substitute its own findings in place of findings of Courts below. [Pp. 486 & 487] A & B

Mr.Iftikhar Ibrahim Qureshi, Advocate for Petitioner.

Mirza Muhammad Saleem Baig, A.A.G. for Respondents.

Mr. Najeeb Ullah Khan, Advocate for Respondent No. 5.

Date of hearing: 28.1.2014.

Order

Through the instant writ petition, petitioner has impugned the orders dated 19-1-2013, 17-12-2012, 23-10-2012 and 30-6-2012 passed by the revenue hierarchy.

1. Brief facts of the case are that petitioner along with others moved an application before Naib Tehsildar/A.C.II, Sahiwal (Respondent No. 4) under Section 135 of the Land Revenue Act, 1967 for partitioning of Khewat No. 76/76, Khatuni No. 563 to 570 measuring 79-Kanals and 11-Marlas situated in Chak No. 52/D, Tehsil and District Sahiwal. Petitioner and Respondent No. 5 are co-owners with regard to the afore-referred land, petitioner owns 51-Kanals 14-Marlas while Respondent No. 5 owns 27-Kanals 14-Marlas.

Respondent No. 4 apportioned the afore-referred land into two Wandajaat, wherein petitioner was given 51-Kanal 14-Marlas land in Wanda No. 1 and Respondent No. 5 was given 27-Kanals 2-Marlas in Wanda No. 2. The order was based upon the principle of compactness which is also evident from Aks Shajjra appended with the petition. Khasra No. 41/21/2 and 21/1 being away from the other land of the petitioner were given for the reason that said land was in possession of the petitioner. Khasra No. 41/21/1 was reserved as a thoroughfare. The said order was challenged by the petitioner before Respondent No. 3 in appeal who dismissed the same vide order dated 23.10.2012. Against the said orders, revision was preferred before Respondent No. 2 who also dismissed the same. Feeling aggrieved against the order dated 17.12.2012 petitioner filed R.O.R. with Respondent No. 1 who after hearing both the parties dismissed the same on 19-1-2013.

1. It was contended by learned counsel for the petitioner that objections filed by the petitioner against Wandajaat were not properly adverted to by Respondents No. 1 to 4. It was also averred that objection petition was moved on 30.06.2012 and Respondent No. 4 without considering the objections passed impugned order on 30.06.2012; that land given in Khasra No. 41/21/2 was of inferior quality and was not irrigated by canal water; that land comprised in Khasra No. 41/21/2 and 21/1 was far away from other land of the petitioner; that the orders passed by Respondent No. 4 were written on stamp paper which is against the provisions of Land Revenue Act; that the order of partition is against the mode of partition; that the impugned orders were passed in mechanical manner without application of judicial mind, therefore, same are liable to be dismissed. Reliance was placed on the case reported as Muhammad Younis & another Versus Member (Judicial), Board of Revenue, Punjab and two others (2004 YLR 793).

2. Conversely, it was argued that petitioner filed a civil suit in respect of the same matter which was dismissed as withdrawn. This fact was kept hidden and not disclosed. No objection in respect of passage was taken in the objection petition filed by the petitioner. Application for objection is dated 23.6.2012 and not 30.06.2012. Contention of the petitioner that the impugned orders were passed in his absence is belied by the order dated 13.02.2012 passed by Naib Tehsildar/A.C.I (Annex-K). It was also contended that writ petition was not maintainable in view of the dictum laid in the cases reported as Muhammad Khan & six others Versus Mst. Ghulam Fatima and 12 others (1991 SCMR 970), Dilshad Versus Additional District Judge, Multan and others (1986 SCMR 1396), Muhammad Mansha and others Versus Sharifan Bibi and others (2006 CLC 608) and Khuda Yar Versus M.B.R. and others (2003 MLD 1075).

3. Arguments heard. Record perused.

4. Admittedly, parties co-owned the property which was partitioned and Wandajaat prepared accordingly whereunder the mode of partition was made in line with the principle of Consolidation and Partition. Though in the Wanda, some land was given to the petitioner which was not contiguous, the same was done as the petitioner was in possession of the said land. The question in respect of land being inferior cannot be raised as it is compactness on which partition is based. Moreover, partitioning of agriculture land is to be based on its classification/ category. Petitioner also approached the Civil Court in this regard but without success.

5. Objection in respect of order of Respondent No. 4 being on stamp paper is rebutted by the law laid down in 1990 MLD 575 wherein it is held "partition cannot be implemented unless the stamp is filed and instrument of partition is drawn". The entire revenue hierarchy had given concurrent findings of fact against the petitioner.

6. Conclusions made by the Revenue Authorities having jurisdiction with regard thereto, based on cogent reasons should not be interfered in constitutional jurisdiction. Concurrent findings of the authorities below passed against the petitioner were not justified to be re-opened. This Court cannot substitute its own findings in place of findings of Courts below.

7. Judgment cited by learned counsel for the petitioner is distinguishable on facts, which is not helpful to the petitioner. In view of the judgments afore-referred by the counsel for respondents, this petition is not maintainable and is dismissed accordingly.

(R.A.) Petition dismissed

PLJ 2014 Lahore 487 [Multan Bench Multan]

Present: Shoaib Saeed, J.

AMIR GHAUS--Appellant

versus

MUHAMMAD JAHANGIR IQBAL & 2 others--Respondents

R.S.A. 21 of 2011, heard on 21.1.2014.

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

----S. 96(3)--Second appeal--Suit was decreed on basis of compromise--Appeal was filed through attorney, but attorney was not appended--Appeal was not signed--Maintainability of appeal--Interference in second appeal is only permissible if impugned decision is contrary to law or it has been rendered without deciding some material issue of law or there had been any error or fact of procedure provided by law--Scope of appeal is limited to extent as provided in S. 96(3), CPC--Value of subject matter is Rs.5,00,000/- only, second appeal is also not competent under circumstances. [P. 490] A

Rana Shahzad Hussain Noon, Advocate for Appellant.

Syed Muhammad Ali Gillani, Advocate for Respondent No. 1.

Ch. MuhammadHussain Jahanian, Advocate for Respondent No. 2.

Date of hearing: 21.1.2014.

Judgment

This Regular Second Appeal is directed against the Judgments and Decrees dated 11.02.2011 and 26.05.2010 passed by the Additional District Judge, and Civil Judge, Multan respectively.

1. Brief facts of the case are that Respondent No. 1 filed a suit for possession through specific performance of agreement to sell dated 12.10.2004 executed between him and the appellant for a total consideration of Rs.500,000/- only regarding suit property situated at Qadir Pur Raan, Tehsil Saddar District, Multan.

Appellant had given a general-power-of-attorney to Respondent No. 2. Said respondent recorded his statement before the civil judge who vide judgment and decree dated 26.05.2010 decreed the suit. Both parties compromised the matter and recorded their statements resulting into the aforesaid judgment and decree. An appeal was filed by the appellant which was dismissed on 11.02.2011. Feeling dissatisfied appellant filed the instant regular second appeal.

1. It was contended by the learned counsel for the appellant that statement recorded by Respondent No. 2 on 26.05.2010 was in absence of the appellant on the basis of purported general-power-of-attorney which was cancelled. That no powers to compromise were delegated therein, therefore, statement recorded did not have any legal value and the order passed was unlawful and void. Reliance was placed on Umair Ali Khan and others versus Riaz Rasool and others (2013 PSC 505), Muhammad Yousuf Siddiqui versus Haji Sharif Khan through L.Rs and others (PLD 2005 Supreme Court 705), Muhammad Yasin and another versus Dost Muhammad through Legal Heirs and another (PLD 2002 S.C. 71), Fida Muhammad versus Pir Muhammad Khan (deceased) through Legal Heirs and others (PLD 1985 Supreme Court 341), Abdul Razzak versus Muhammad Yusuf and 3 others (1984 CLC 1673), Messrs Doha Bank Limited versus Pangrio Sugar Mills Limited and 2 others (2003 CLD 661 (Karachi) and Javed Iqbal, etc. Versus Bashiran Begum, etc. (2013 CLR 224 (Lahore) and Mst. Mumtaz Danish vs. Akhtar Bibi and another (1988 CLC 2134).

2. Conversely, it was argued that the suit having been decreed on the basis of compromise, the appeal was not maintainable under Section 96(3) of the Code of Civil Procedure. The appellant did not file any appeal before the Additional District Judge as it was not signed by him so there was no appeal in the eyes of law. The appeal having been filed through attorney but his power-of-attorney was not appended. It was also averred that in case of fraud alleged to have been committed by attorney with owner of the property then petition could be filed under Section 12(2) of the Code of Civil Procedure in the Court which passed the judgment and decree in question. Reliance was placed on Mst. Shabana Irfan versus Muhammad Shafi Khan and others (2009 SCMR 40) wherein it was held that compromise decree can only be challenged under Section 12(2) of the Code of Civil Procedure. Also in judgment reported as "Pakistan Industrial Credit and Investment Corporation Ltd. versus Messrs Khairpur Sugar Mills Limited and another (PLD 2012 Sindh 324) "If compromise decree is challenged on the ground of misrepresentation the same can also be challenged under Section 12(2) of the, CPC. Appellant raised plea of general-power-of-attorney for the first time before the appellate Court. It was contended that no such objection was raised before the trial Court nor any such plea taken in the pleadings. That second appeal is competent if it is based on grounds as mentioned in Section 100 of the, CPC.

Respondent No. 2 (attorney's holder) filed a suit for declaration, etc. in respect of annulment /cancellation of general-power-of-attorney. The said suit was decreed in his favour vide judgment and decree dated 11.03.2010.

An appeal was filed against the said judgment and decree which was dismissed on 11.02.2011 against which a civil revision was filed in this Court which also met the same fate and was dismissed on 25.05.2011. The said judgment was assailed through CPLA before the August Supreme Court of Pakistan which too was dismissed on 15.05.2012, as a consequence the order dated 11.03.2013 passed by civil judge stood affirmed. General-power-of-attorney on the basis of which statement was recorded before the civil judge resulting into judgment and decree dated 26.05.2010 was thus valid and subsisting at the time when such statement was made by Respondent No. 2. The orders passed by Courts below were in accordance with law and the appeal in hand be dismissed.

1. Arguments heard. Record perused.

2. The appellant has placed his entire focus on the general-power-of-attorney and alleges that power-of- attorney was annulled and no power to compromise was ever delegated to attorney (Respondent No. 2). Fraudulently and by misrepresentation appellant was cheated/ deprived of his valuable property as he (appellant) was not aware of the statement recorded by Respondent No. 2 in this regard but the said plea was not raised in the pleadings. A party can plead a case if it had been made out by it in its pleadings---No evidence can be led or looked into in support of plea which had not been taken in pleadings---Variation in pleadings and proof was not permissible in law as held in Binyameen and 3 others versus Chaudhry Hakim and another (1996 SCMR 336).

3. The factum of general-power-of-attorney being cancelled at the time when statement was recorded is belied by the judgment passed by the apex Court in Civil Appeal No. 1113 of 2011 wherein leave granting order was recalled and the impugned judgments were held to be exceptionable for warranting interference, thus setting at rest the controversy regarding general power-of-attorney. The power-of-attorney was valid and subsisting when statement was recorded by Respondent No. 2 before the Civil Court. Even otherwise, if fraud or misrepresentation was alleged then it is the matter between the Agent (Respondent No. 2) and Principal (appellant) for which Principal can institute a suit in a Civil Court to proceed against the delinquent or through criminal proceedings and agitate his grievance therein, as reported in Mst. Shabana Irfan versus Muhammad Shafi Khan and others (2009 S.C.M.R. 40). Appellant did not append general-power-of-attorney, as reported in Muhammad Yousuf versus Jalaluddin and another (1986 CLC 363 (Karachi), "copy of power-of-attorney was produced in Court---original power-of-attorney neither produced in Court nor any witness mentioned therein to have identified executant, produced to prove execution---copy of original power-of-attorney, held, could not be relied in absence of original and in view of non-production of witnesses mentioned in copy to identify executant". Viewed in the present case appellant did not bother even to append copy of power-of-attorney in absence of which no perverse findings could be given.

4. Interference in second appeal is only permissible if impugned decision is contrary to law or it has been rendered without deciding some material issue of law or there had been any error or the fact of procedure provided by law. None of the pleas as enumerated above have been raised in appeal, therefore, second appeal is not maintainable. Scope of the appeal is limited to the extent as provided in the said section. The value of subject matter is Rs.5,00,000/- only, second appeal is also not competent under the circumstances. The case-law relied upon by the learned counsel for the appellant are not applicable to the facts of this case. There is no un-certainty, vagueness or inconclusiveness in the judgments rendered by the Courts below. The order passed are well reasoned and in accordance with law. Resultantly, there is no merit in this appeal which is hereby dismissed.

(R.A.) Appeal dismissed

PLJ 2014 Lahore 491 [Rawalpindi Bench Rawalpindi]

Present: M.Sohail Iqbal Bhatti, J.

QURBAN HUSSAIN--Petitioner

versus

DIRECTOR MILITARY LANDS OF CANTONMENTS, etc.--Respondents

C.R. No. 49-D of 2014, decided on 20.1.2014.

Arbitration Act, 1940 (X of 1940)--

----S. 14--Issaunce of notice--Scope of--Requirements of--Concept of issuance of notice u/S. 14 of Arbitration Act, is to enable parties to file their objections, if any, within described period of time and where fact of filing of award is in knowledge of party, there was no requirement to give notice u/S. 14(2) of Arbitration Act, by Court. [P. ] C

Limitation Act, 1908 (IX of 1908)--

----Art. 158--Arbitration Act, (X of 1940), Ss. 14(2) & 34--Knowledge of announcement of award--Amendment was sought in plaint for challenging award--Limitation--Application for amendment of plaint filed by petitioner was dismissed and objections were filed--Petitioner was in knowledge of award as after announcement of award, petitioner filed an application for restoration of suit--Where a party had knowledge of filing of award in Court, further notice need not be issued to it by Court and informing about filing of award and objections to award should have been filed within 30 days from starting point of limitation i.e. date of knowledge--Art. 158 of Limitation Act, 1908 provides a period of 30 days for filing of objections to award from date of knowledge--Sub-section-(1) cast a duty upon Arbitrator to give a notice of filing of award, whereas, Sub-Section-(2) relates to powers of Court to give notice to party bringing it to knowledge of factum of filing of award--Such a notice can even be given orally--Petitioner was in knowledge of award, when he filed an application for restoration of suit and subsequently for amendment of plaint--Since petitioner had knowledge of announcement of award when he filed an application for restoration of suit by specifically mentioning that award had been announced against petitioner and thereafter filing an application for amendment in plaint, in which, petitioner sought an amendment in plaint for challenging award--Objections filed by petitioner were barred under Art. 158 of Limitation Act. [Pp. 493 & 494] A, B, D, E, F, G & H

Sh.Zameer Hussain, Advocate for Petitioner.

Date of hearing: 20.1.2014.

Order

This civil revision is directed against the judgment and decree dated 11.9.2012 passed by learned Civil Judge Ist Class, Jhelum and judgment and decree dated 4.1.2014 passed by learned Addl. District Judge, Jhelum.

1. Brief facts to the case are that the petitioner filed a suit for declaration and cancellation with consequential relief and suit for permanent and mandatory injunction. The respondents appeared before the Court and filed an application under Section-34 of the Arbitration Act, 1940 for stay of proceedings and for arbitration in terms of Clause-VI of the rent agreement between the parties. The learned Civil Judge accepted the application and referred the matter for decision by Director Military Lands, Lahore through order dated 1.2.2011. Thereafter, the suit was restored upon the application of the petitioner and the case was fixed for submission of objections upon the Award; but the petitioner instead of filing the objections, filed an application Under Order-VI Rule-17, CPC for amendment of the plaint, which was dismissed on 12.12.2011. The petitioner filed the objections to the Award dated 9.9.2011 on 19.1.2012. The objections filed by the petitioner were dismissed being barred by time and judgment and decree was passed in terms of the Award dated 9.9.2011. The appeal filed by the petitioner against the judgment and decree was also dismissed on 4.1.2014, hence this revision petition.

2. Learned counsel for the petitioner while advancing his arguments submitted that no notice had been issued to the petitioner in terms of Order-14 of the Arbitration Act, 1940 and both the Courts below have erred in law while passing the impugned judgments and decrees. Learned counsel for the petitioner has argued that the issuance of notice was sine qua non and no limitation would run against the petitioner, as the trial Court had not issued a notice. Learned counsel has placed reliance on Col (Retd) Muhammad Aslam vs. Haji Muhammad Shafi and another (PLD 1993 Lahore-11).

3. I have considered the arguments of learned counsel for the petitioner.

4. It is a matter of record that after referring the matter to arbitration on 1.2.2011, the suit was adjourned sine die. It was upon the application of the petitioner dated 21.9.2011 that the suit was restored and thereafter, the petitioner filed an application for amendment of the plaint on 31.10.2011 which was dismissed on 29.11.2011 and the objections were filed thereafter on 12.12.2011. It is a matter of record that the Award was announced on 9.9.2011. The petitioner was in the knowledge of the Award dated 9.9.2011, as after the announcement of Award, the petitioner filed an application for restoration of the suit on 21.9.2011 and it has been specifically mentioned in Para-2 of the application that the Director Military Lands has announced the decision against the petitioner and thereafter, the application was filed for amendment of the plaint on 22.10.2011 and it has been specifically mentioned in Para-2 of the application that the Arbitrator has announced his Award on 9.9.2011 and an amendment was sought in the plaint for challenging the Award dated 9.9.2011. All these facts lead me to an irresistible conclusion that the petitioner had knowledge of the Award dated 9.9.2011. It has been held by the Division Bench in a judgment reported in Messers Shafi Corporation Ltd. vs. Govt. of Pakistan through Director General of Defence Purchase, Ministry of Defence, Karachi (PLD 1994 Karachi-127) that where a party had knowledge of filing of Award in the Court, further notice need not be issued to it by the Court and informing about filing of the Award and objections to the Award should have been filed within 30 days from starting point of limitation i.e. date of knowledge.

5. To my mind, the concept of issuance of notice U/S. 14 of the Arbitration Act is to enable the parties to file their objections, if any, within described period of time and where the fact of filing of award is in the knowledge of the party, as in the present case, there was no requirement to give notice U/S. 14(2) of the Arbitration Act, 1940 by the Court.

6. Article-158 of Limitation Act, 1908 provides a period of 30 days for filing of objections to the Award from the date of knowledge.

7. There is a material distinction between sub-section (1) and sub-section (2) of Section(1) of the Arbitration Act. Sub-section (1) cast a duty upon the Arbitrator to give a notice of filing of Award, whereas, sub-section (2) relates to the powers of the Court to give notice to the party bringing it to the knowledge of factum of filing of Award and it has been held by the Hon'ble Supreme Court in Late Mst. Majeedan Thr. Lrs. vs. Late Muhammad Naseem (2001 SCJ-96) that such a notice can even be given orally. As observed by me that the concept of notice is only to inform the parties of filing of Award. In the present case, the petitioner was in the knowledge of the Award, when he filed an application for restoration of the suit and subsequently for amendment of the plaint.

8. Since the petitioner had knowledge of announcement of Award dated 9.9.2011, when he filed an application for restoration of the suit on 21.9.2011 by specifically mentioning that the Award has been announced against the petitioner and thereafter filing an application for amendment in the plaint, in which, the petitioner sought an amendment in the plaint for challenging the Award dated 9.9.2011. It has been rightly observed by both the Courts below that the objections filed by the petitioner on 12.12.2011 were barred under Article-158 of the Limitation Act.

9. For what has been discussed above, I am not inclined to exercise my revisional powers, as both the Courts below have not committed any material irregularity while passing the impugned judgments and decrees. Resultantly, revision petition is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2014 Lahore 494 (DB) [Rawalpindi Bench Rawalpindi]

Present: Syed Iftikhar Hussain Shah and M. Sohail Iqbal Bhatti, JJ.

AZHAR HAYAT KHAN, etc.--Appellants

versus

HEAVY INDUSTRIES TAXILA EDUCATION WELFARE TRUST, etc.--Respondents

I.C.A. No. 74 of 2013, heard on 27.2.2014.

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

----S. 21(g)--Cantonment Act, 1924, S. 282(39) & 112--S.R.O.--1087(1)/99--Constitution of Pakistan, 1973--Art. 199--Law Reform Ordinance, 1972--S. 3--Intra Court Appeal--Contractual disputes cannot be resolved by High Court in exercise of extra ordinary constitutional jurisdiction--No jurisdiction toward any contract of cattle market which was sole prerogative under law--Any contract entered by HITEWT was in violation to law--Contractual obligation--Jurisdiction--Validity--Contractual disputes between private parties cannot be resolved under Constitutional jurisdiction of High Court--It is a settled law that enforcement of purely contractual obligation could not be subject matter of proceedings under Art. 199 of Constitution--Even a contract carrying elements of public interests concluded by functionaries of state has to be just, fair, transparent, reasonable and free of any taint of malafides--Discretionary relief by way of writ cannot be granted to help retention of ill gotten gain, even where impugned action has been taken in deviation of certain recognized norms and procedures--High Court in writ jurisdiction will not extend protection of law to a delinquent person to retain a gain, privilege or benefit which was acquired by manipulation--Where transaction was not transparent and on contrary, lacked element of transparency which resultantly caused huge losses to Government exchequer, High Court would never come forward to rescue of delinquent individuals--Although contract entered into between appellants and HITEWT is a contract simpliciter, (though no right of auction vests with HITEWT), it is lacking elements of transparency, fairness, justness and reasonableness--In pursuance to order auction of cattle market was conducted and auction has been confirmed @ Rs:100,000,000/- (Rupees Ten Crore) per annum with 10% annual increase which is about three times more an amount of Rs.3,50,00,000/- per annum. [Pp. 499 & 500] A, B, C, D, E & F

Mr.Taufiq Asif and Sh. Ahsan-ud-Din, Advocates for Appellants.

Ms.Mehmoona Moola, Advocate for Respondent No. 1.

Ms.Gulnar Malik, Advocate for Respondent No. 3.

Mr.Pervez Khan Tanoli, Standing Counsel.

Raja Khalid IsmailAbbasi, Advocate for Respondent No. 6

Date of hearing: 27.2.2014.

Judgment

M. Sohail Iqbal Bhatti, J.--Through this Single Order we intend to dispose of the instant Intra Court Appeal as well as I.C.A. No. 81/2013 (Azhar Hayat Khan etc. versus Nazeer Ahmed etc.) as both Intra Court Appeals arise out of the same order passed by the learned Single Judge in Chambers.

1. Through these appeals, the appellants have sought an exception to order dated 07.06.2013 passed by learned Single Judge in Chambers, dismissing the writ petitions filed by the appellants.

2. The facts of the case are that the appellants entered into an agreement with Heavy Industries Texila Education Welfare Trust, (hereinafter referred as HITEWT) regarding holding of a Cattle Market in Serai Kala, Texila, District Rawalpindi, within the Area of Cantonment Board, Texila hereinafter referred as CBT); for a period of 10 years and 3 months commencing from 01.04.2008 and ending on 30.06.2018 for consideration of Rs. 3,51,00,000/- per annum; Rs. 100,000,000/- (Rupees Ten Crore) were paid in advance in three installments according to the schedule.

3. Vide Memo No. 4235/Gen/HITEWT/SHQ, dated 30.01.2013, the cattle market along with its rights was handed over to CBT with a stipulation that the terms and conditions already agreed between appellants and HITEWT would remain the same. During the currency of the agreement CBT made a publication in Daily Jang on 07.03.2013 for conducting auction of the same cattle market. The appellants being aggrieved by this act of CBT filed a writ petition. The learned Single Judge in Chambers dismissed the same through impugned order dated 07.06.2013 and directed the CBT to hold an open auction after fresh public notice to lease out the rights of collection of fee for holding the cattle market. It was further observed by the learned single Judge in Chambers that the appellants have the right to participate in the said auction.

4. The learned counsel for the appellants while advancing his arguments submitted that the learned Single Judge in Chambers dismissed the writ petition in an arbitrary manner against the terms and conditions of the agreement (emphasis is provided to discuss this question in the later part of this judgment). It was further argued that the appellants have entered into an agreement with HITEWT and the said agreement was intact and could not have been interfered by CBT. It was further contended that no notice of revocation of the contract was given to the appellants; hence the principal of audi alterm partrem was violated. And therefore prayed for the setting aside of the impugned order.

5. Conversely, the learned counsel for Respondent No. 3 whose arguments have been adopted by the remaining respondents, vehemently opposed the maintainability of the Intra Court Appeal on the grounds that the contractual disputes cannot be resolved by the High Court in exercise of its extra ordinary constitutional jurisdiction; the learned counsel has further argued that the agreement relied upon is a result of collusion between the appellants and HITEWT as the said contract/Iqrar Nama was against the provisions of Section 21(g) of the Specific Relief Act, 1877. It has been further argued that the contract relied upon by the appellants does not qualify the standards of reasonableness and fairness as the contract was executed without having recourse to open auction, it is further argued that HITEWT had no jurisdiction to award any contract to the appellants and any such contract was void and even not binding on CBT; it is further maintained that Respondent No. 3 by the order of this Court dated 16.08.2013 has conducted auction of the cattle market for a period of three years @ Rs:100,000,000/- per annum with 10% annual increase which manifests that the contract entered into between the appellants and HITEWT was fraudulent and aimed at depriving the Government Exchequer from huge benefits.

6. We have considered the arguments advanced by the learned counsels of the parties and have gone through the record.

7. The Federal Government through SRO 1087(1)/99 published in the official gazette on 09.10.1999 in exercise of powers conferred under Section 282(39) of the Cantonments Act, 1924 made the by-laws which have a statutory force. The opening para of the referred SRO reads as under:--

"The following by-laws for the regulation and control of holding cattle market in the Texila Cantonment made by Cantonment Board, Texila, in exercise of powers confers by clause (39) of Section 282 of the Cantonments Act, 1924 (II of 1924) read with Section 283 thereof are hereby published for general information, the same having been previously been published by the said board, and approved and confirmed by the Federal Government as required by sub-section (1) of Section 284 of the said Act."

Sub-by-law (2) of these by-laws reads as under:--

"No person shall, without the authority of the board, except as provided in these by-laws, establish or maintain a cattle market within the limits of the Cantonment."

By-law 21(1) reads as under:--

Subject to sub-by-law (2), the board may, by publication auction, lease out the cattle market to any person or persons on such terms and conditions as the board may determine.

Sub-by-law 29 reads as under:--

The entry fee of cattle, rate of receipt of charging and other fee or charges relating to cattle market shall be fixed by the board.

1. The perusal of the above relevant provisions clarifies that all the acts relating to holding of cattle market in CBT are subject to the authority of the board and any contract in regard of cattle market can only be competently entered into by CBT. Reference is made to Section 112 of the Cantonment Act, 1924 which reads as under:--

Section 112.

Contract by whom to be executed: subject to the provision of this chapter, every board shall be competent to enter into and perform any contract necessary for the purposes of this Act.

This would now take us to the perusal of Section 115 of the Cantonment Act, 1924.

Contracts improperly executed not to be binding on the board: If any contract is executed by or on behalf of a board otherwise than in conformity with the provisions of this chapter, it shall not be binding on the board.

The perusal of the above provisions of law would now take us to the directive issued by the President Secretariat, which is reproduced below:--

PRESIDENT'S SECRETARIATE (PUBLIC) AIWAN-E-SADR.

Subject:-- PRESIDENT'S VISIT TO HEAVY INDUSTRIES TEXILA.

Reference this Secretariat's u.o. note of even number dated 09 Mar. 2004 on the above subject. During the subject visit, the President also inaugurated HIT Education Complex, (HITEWT) and was briefed about the establishment of HIT Education Welfare Trust and its role for providing equality education to the children of employees of HIT and the local population. The President was pleased to direct as under:-

(i) Utilization of government land by HIT Education Welfare Trust for constructing HITEC may be regularized by M/s. Defence (DG ML&C Department) on priority basis; and

(ii) Proceeds derived from the "cattle mandi" be utilized by the HIT Education Welfare Trust for meeting its laid down objectives.

1. The Prime Minister's Secretariat is requested to consider issuing necessary instructions to M/s. Defence for necessary actions in regard to points (i) & (ii) above accordingly, please.

Maj. Gen. (Syed Muhammad Owais), For Chief of Staff to the President.

1. Clause (ii) of this letter manifests that only the proceeds derived from the `cattle mandi' were to be utilized by HITEWT for meeting its objectives.

2. It is no where provided in the said directive that HITEWT had been given any authority to execute any contract regarding auction of the cattle market which was the sole prerogative, under the law, of CBT.

3. Any contract or agreement entered into by HITEWT was in violation to law i.e. Section 112 of the Cantonment Act, 1924 and any superstructure built over this void act along with all rights and obligations must fall to the ground. Reference is made to PLD 1958 Supreme Court (Pak) 104 titled "Yousaf Ali vs. Muhammad Aslam Zia and two others".

4. We are also inclined to make reference to Section 21 of the Specific Relief Act, 1877 which deals with the contracts not specifically enforceable. Section 21(g) reads as under:--

21 Contracts not specifically enforceable.--The following contracts cannot be specifically enforced:-----

.......................................

g. A contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date;

....................................................

1. It does not appeal to prudent mind as to why a contract for a period of ten years was executed in favour of appellants against the provisions of law which was otherwise not enforceable under the law. The President's directive reproduced above, even otherwise, does not confer any right upon HITEWT to enter into any contract; except to derive the benefits of the proceeds of the cattle market, execution of a contract with the appellants is an act beyond the powers of HITEWT and amounts to entering into domain of CBT.

2. We are afraid that the contractual disputes between private parties i.e. present appellants and HITEWT cannot be resolved under the Constitutional jurisdiction of this Court.

3. The Honourable Supreme Court of Pakistan in a judgment reported in 1998 SCMR 2268 titled as M/S: Airport Support Services. vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others" observed as under:

"While routine contractual disputes between private parties and public functionaries are not open to scrutiny under the constitutional jurisdiction, beaches of such contracts, which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by the Government, semi government or local authorities or like controversies if involving derelictions of obligations, flowing from a statute, rules or instructions can be adequately addressed to for relief under the jurisdiction."

1. It is established from the dictum laid down by the Hon'ble Supreme Court of Pakistan that the dispute raised by the petitioners in the writ petition entails inquiry into controversial questions of fact and also does not involve any derelictions by a public functionary of obligations flowing from the statute, rules or instructions which can be addressed under constitutional jurisdiction of this Court.

2. It is a settled law that enforcement of purely contractual obligation could not be the subject matter of proceedings under Article 199 of the Constitution. Reference is made to a Division Bench Judgment of Karachi High Court reported in PLD 1999 Karachi page 472 titled Owaisco. vs. Federation of Pakistan and others. We cannot hold ourselves back from observing that, even a contract carrying elements of public interests concluded by functionaries of the state has to be just, fair, transparent, reasonable and free of any taint of mala fides.

3. It is the consistent view of the Superior Courts that discretionary relief by way of writ cannot be granted to help retention of ill gotten gain, even where the impugned action has been taken in deviation of certain recognized norms and procedures. Reference in this regard is made to 1989 SCMR 441 (The Engineering-in-Chief Branch through Ministry of Defence, Rawalpindi and another), PLD 1995 Supreme Court 423 (Multiline Associates versus Ardeshir Cowasjee and 2 others), PLD 1974 Supreme Court 106 (Wali Muhammad and others versus Sakhi Muhammad and others) and PLD 2000 Karachi 224 (Abdul Haq and others versus Province of Singh and others).

4. High Court in writ jurisdiction will not extend the protection of law to a delinquent person to retain a gain, privilege or benefit which was acquired by manipulation. Where the transaction was not transparent and on the contrary, lacked the element of transparency which resultantly caused huge losses to the Government exchequer, the High Court would never come forward to the rescue of the delinquent individuals.

5. In the present case, we are afraid to observe that although the contract entered into between the appellants and HITEWT is a contract simpliciter, (though no right of auction vests with HITEWT), it is lacking the elements of transparency, fairness, justness and reasonableness. This is established from this fact, as is pointed out by the learned counsel for Respondent No. 3, that in pursuance to the order dated 16.08.2013, the auction of the cattle market was conducted and the auction has been confirmed @ Rs:100,000,000/- (Rupees Ten Crore) per annum with 10% annual increase which is about three times more an amount of Rs.3,50,00,000/- per annum.

6. This casts serious doubts and aspersions upon the transparency of the agreement upon which the appellants are hinging their rights and claims; which was even otherwise entered into without there being any public auction; without prejudice to the fact, that this agreement had been entered in violation to SRO 1087 (1)/99 published in the official gazette on 09.10.1999 read with Section 112 of the Cantonment Act, 1924 and was therefore not binding upon CBT under Section 115 of the Act, 1924.

7. For what has been discussed above, we are not inclined to interfere with the order passed by learned Single Judge in Chambers. The appellants are at liberty to avail their remedy from the Court of Plenary jurisdiction. Resultantly, the instant appeal as well as I.C.A. No. 81/2013 are dismissed.

(R.A.) Appeal dismissed

PLJ 2014 Lahore 501 (DB) [Bahawalpur Bench Bahawalpur]

Present: Altaf Ibrahim Qureshi & Sadaqat Ali Khan, JJ.

ANWAR-UL-HAQ SHAHIDBARI--Appellant

versus

T.M.A., etc.--Respondents

I.C.A. No. 1 of 2014, decided on 20.1.2014.

Punjab Local Government Ordinance, 2001--

----S. 190--Law Reforms Ordinance, 1972, S. 3(2)--S.O. 48/86-P-II dated 27-12-1987--Notification--Intra Court Appeal--Post of sanitary inspector was up-graded and nomenclature was changed from sanitary inspector to chief sanitary inspector--Remedy of appeal by filing appeal to secretary local Government and rural development Punjab--Admittedly, appellant had filed an appeal to Secretary Local Government and Rural Department Punjab which is provided in view of S. 190 of Punjab Local Government Ordinance, 2001 before filing writ petition hence instant I.C.A in view of S. 3(2) of Law Reforms Ordinance, 1972 was not maintainable and was dismissed in limine. [P. 503] A

Mr Jamshaid Akhtar Khokhar, Advocate for Appellant.

Mr.Saeed Ahmad Choudhary, AAG for Respondents.

Date of hearing: 20.1.2014.

Order

The instant I.C.A has been filed by the present appellant against the order dated 17.12.2013 passed by Single Bench of this Court according to which Writ Petition No. 4468/2010 of the present appellant was disposed of.

1. Brief facts of the case are that the present appellant filed a Writ Petition No. 4468/2010 titled "Anwar-ul-Haq Bari versus T.M.A, etc before the Honourable Single Bench of this Court stating therein that the petitioner was appointed as Sanitary Inspector in the year 1986 by the respondent department and was most senior and qualified to hold the post of Sanitary Inspector in the year 1991,Government of the Punjab was pleased to issue Notification in which the post of Sanitary Inspector was upgraded from BPS-8 to BPS-11 and nomenclature was also changed from Sanitary Inspector to Chief Sanitary Inspector. The said notification was issued in the light of Notification No. SOV/2-48/86-P-II dated 27.12.1987 and the post was upgraded vide Notification dated 03.03.1991. The Tehsil Municipal Administration City Bahawalpur on 31.05.2008 through Resolution No. 15 recommended for the grant of BPS-11 to the appellant due to his long service. The present appellant stated in Paragraph No. 8 of the writ petition that he had moved application to the District Co-Ordination Officer, Bahawalpur being Controlling Authority of the Municipal Administration which was rejected without any cause and the District Co-Ordination Officer also referred the matter to Secretary, Local Government for decision on merit. The present appellant further stated in Paragraph No. 10 of the writ petition that he had also filed a separate appeal to Secretary, Local Government & Rural Development, Punjab in which request was made for the award of emoluments of BPS-11 and other pensionaries benefits on 10.08.2010.

2. The writ petition of the appellant was disposed of on 17.12.2013 with the following order:

"During the course of arguments and after perusal of the comments filed on 2.10.2010 by the DCO/Respondent No. 2 it is borne out that the appeal filed by the petitioner has been forwarded to Respondent No. 3. It is felt appropriate to direct that copy of this writ petition alongwith all the annexures be sent to Respondent No. 3, who shall treat the same as written submissions on behalf of the petitioner and dispose of the appeal filed by him within a month from the receipt of this order and obviously after affording opportunity of hearing to concerned parties".

1. At the very outset, learned AAG raised an objection that the instant I.C.A in view of Section 3 sub-section (2) (Proviso) of Law Reforms Ordinance, 1972 is not maintainable as appellant has availed the remedy of appeal by filing appeal to Secretary, Local Government and Rural Development Punjab as provided under Section 190 of the Punjab Local Government Ordinance 2001 against the order well mentioned in Paragraph No. 10 of the writ petition of the appellant.

2. On the other hand, learned counsel for the appellant in reply to objection raised by the A.A.G regarding maintainability of I.C.A before Division Bench submitted that although appellant had filed a separate appeal to the Secretary Local Government and Rural Development Punjab but the same does not debar the appellant from filing I.C.A against the order of Single Bench of this Court.

3. We have heard the learned counsel for the appellant as well as AAG on the point of maintainability of this I.C.A.

4. Section 3 sub-section (2) (Proviso) of Law Reforms Ordinance 1972 is hereby reproduced for reference:

"Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under (clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan) arises out of any proceedings in which the law applicable, provided for at least one appeal (or one revision or one review) to any Court, Tribunal or authority against the original order."

1. Section 190 of the Punjab Local Government Ordinance 2001 is also reproduced for reference:

"Any person aggrieved by an order passed by a Local Government or its functionaries in pursuance of this Ordinance or the rules of bye-laws made there under may appeal to such authority in such manner and within such period as may be prescribed".

1. Admittedly, the appellant had filed an appeal to the Secretary Local Government and Rural Department Punjab which is provided in view of Section 190 of the Punjab Local Government Ordinance 2001 before filing Writ Petition No. 4468 of 2010, hence the instant I.C.A in view of Section 3 sub-section (2) (proviso) of Law Reforms Ordinance 1972 is not maintainable and is dismissed in limine.

(R.A.) I.C.A. dismissed

PLJ 2014 Lahore 504

Present: Shahid Waheed J.

RAFIQUE AHMAD AWAN--Appellant

versus

A.D.J.SIALKOT, etc.--Respondents

F.A.O. No. 281 of 2008, heard on 29.1.2014.

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

----O. XXXIX, R. 2(3)--Contempt proceedings--Violation of injunctive order passed by First Appellate Court--Contempt application was filed against three other persons--Contempt proceedings always initiated against persons who violates injunctive order and not against institution--Direction to be detained in civil prison was challenged--Proceedings conducted by First Appellate Court were not fair nor in accordance with law--Validity--Contempt proceedings were always initiated against a person who violates injunctive order and not against institution/organization and its offices--Proceedings were not conducted in above stated manner; and, thus it is clear that First Appellate Court had exercised his jurisdiction illegally and with material irregularity--Material irregularities committed by First Appellate Court evidence led by respondent did not make out any case of contempt of Court or violation of temporary injunction as it does not show any intentional disobedience of order by present appellant--Appellant violated injunctive order of Court deliberately/intentionally or that he had challenged authority of Court--Observation regarding conduct of appellant as recorded by First Appellate Court in impugned judgment did not find support from record--Thus, sentence awarded to appellant was not sustainable. [Pp. 507 & 508] A, B, C & E

Contempt--

----Violation of injunctive order--Validity--Mere unintentional disobedience to judgment, order or process of Court amounts to contempt in theory only and does not render to person liable to punishment. [P. 508] D

Appellant in Person.

Nemo for Respondents.

Date of hearing: 29.1.2014.

Judgment

This appeal is directed against the judgment dated 31.10.2008 whereby the learned Addl. District Judge, Sialkot accepted the application filed by the Respondent No. 2 under Order XXXIX Rule 2(3), CPC and the appellant was directed to be detained in civil prison for a period of 6 months.

1. Briefly, the facts of the case are that in the year, 1998 the Government of Punjab launched City Development Project for Sialkot city. The District Administration surveyed various roads in the town and prepared a list of encroachments. Chief Corporation Officer, Municipal Corporation, Sialkot on receipt of encroachment report issued notices to the encroachers to remove the encroachments. Frontier Works Organization (FWO) was entrusted with development work by the Commissioner, Gujranwala and the funds were provided by the Punjab Government. The Respondent No. 2, Professor Abdul Hameed Akhtar, on receipt of demolition notice of Property No. 30/236 consisting of a house and a shop at Church Road, Sialkot instituted a suit for permanent injunction. Alongwith plaint an application under XXXIX Rule 1 & 2, CPC was also filed for grant of interim injunction. This application was dismissed by the learned Trial Court vide order dated 21.2.2001. Feeling aggrieved, the Respondent No. 2 filed an appeal before the learned Addl. District Judge, Sialkot. Notice of the appeal was issued to the other side vide order dated 23.2.2001. On the next date of hearing i.e. 24.2.2001 the respondents of the appeal entered appearance before the learned first Appellate Court. After hearing preliminary arguments, the learned Duty Judge (Addl. District Judge) restrained the respondents of the appeal from demolishing the disputed premises till the next date of hearing. The case was adjourned to 28.2.2001. On the said date the Respondent No. 2 moved an application for appointment of local commission. During pendency of application for appointment of local commission, the Respondent No. 2 on 15.6.2001 moved an application under Order XXXIX Rule 2 (3), CPC for initiation of proceedings against (i) Administrator Municipal Corporation, Sialkot, (ii) Frontier Works Organization through Officer Incharge of FWO, (iii) Municipal Magistrate, Sialkot; and, (iv) Mr. Nadeem Sarwar, Magistrate Ist Class, District Courts, Sialkot (hereinafter called the `defendants'). Before proceedings further it is worth mentioning here that the present appellant relinquished the charge of the post of Administrator, Municipal Corporation, Sialkot on 15.6.2001. In response to notice issued by the learned Addl. District Judge, the Municipal Corporation through Tehsil Nazim, Sialkot submitted reply to the contempt application/application filed under Order XXXIX Rule 2(3), CPC. The learned Addl. District Judge vide order dated 3.6.2002 framed the following issues:--

"1. Whether the respondent in violation of injunction order dated 24.2.2001 demolished a part of the house of the petitioner, if so, to what effect? OPP

1. Relief."

The Respondent No. 2 appeared before the learned Addl. District Judge as AW-3 and in support of his claim produced Irfan Bashir (AW-1) and Iqbal (AW-2). Vide order dated 16.7.2003 right of the defendants was closed and the matter was fixed for final arguments. From 18.7.2003 till 01.02.2008 the matter remained pending for hearing of final arguments. The learned Addl. District Judge, Sialkot vide order dated 8.2.2008 issued notice to the Tehsil Nazim, Sialkot directing him to intimate the Court about the present place of posting of the defendants. After getting addresses, the learned Addl. District Judge, Sialkot vide order dated 14.2.2008 summoned the defendants. On 28.5.2008 the present appellant entered appearance before the learned Addl. District Judge and sought an adjournment for preparation of his arguments. Thereafter, on 15.7.2008 the present appellant submitted his reply to the application filed under Order XXXIX Rule 2(3), CPC. After having received the reply, the learned Addl. District Judge, Sialkot vide order dated 31.10.2008, accepted the application filed by Respondent No. 2 under Order XXXIX Rule 2 (3), CPC and directed that the appellant be detained in civil prison for a period of 6 months.

1. The appellant through this appeal has called in question the order dated 31.10.2008 passed by the learned Addl. District Judge Sialkot on the grounds: that he was not allowed to lead evidence in support of his claim; that entire evidence was recorded in his absence whereas the contempt proceedings are of a criminal nature and the presence of the contemnor was necessary during the proceedings; that the findings of the learned Addl. District Judge are not based on record and were totally extraneous to the facts of the case; that evidence produced by Respondent No. 2 does not make out any case of violation of any injunction; that contempt application was moved against three other persons but the impugned judgment does not make any mention of remaining three persons; that contempt proceedings are always initiated against the person who violates the injunctive order and not against the institution like Corporation; and, that he being an old man who had a serious paralysis attack cannot serve punishment.

2. Name of the learned counsel for Respondent No. 2 has appeared in the cause-list and despite this fact none has entered appearance on behalf of the Respondent No. 2 and resultantly he is proceeded against ex parte.

3. I have heard the appellant and perused the record.

4. The questions which fall for determination in this appeal are as to whether the proceedings conducted by the learned Addl. District Judge were in accordance with law; and, that as to whether in the given facts and circumstances of the case the appellant could be punished under Order XXXIX Rule 2(3), CPC. The answer to the first question hinges upon the appraisal of proceedings conducted by the learned Addl. District Judge. The Respondent No. 2 instituted a suit for permanent injunction against: (i) the Municipal Corporation through Administrator; and, (ii) Chief Corporation Officer, Sialkot. The learned Trial Court vide order dated 21.2.2001 refused to grant interim injunction to Respondent No. 2. The Respondent No. 2 assailed the above said order before the learned Addl. District Judge, Sialkot who on 24.2.2001 passed order that "in the meanwhile, the respondents are restrained from demolishing the disputed premises till the next date of hearing." The Respondent No. 2 on 15.6.2001, filed an application under Order XXXIX Rule 2(3), CPC. There were four respondents of this application (which hereinbefore have been called as the defendants) i.e. Administrator, Municipal Corporation, Sialkot, (ii) Frontier Works Organization through Incharge Officer of FWO (iii) Municipal Registrar, Sialkot and (iv) Mr. Nadeem Sarwar, Magistrate Ist Class, District Courts, Sialkot. Before proceeding further it is pertinent to mention here that contempt proceedings are always initiated against a person who violates the injunctive order and not against the institution/organization and its offices. The learned Addl. District Judge without realizing the above stated legal position issued notices to the above said defendants. The Municipal Corporation, Sialkot through Tehsil Nazim submitted reply to the application. After getting reply the learned Addl. District Judge vide order dated 3.6.2002 framed issues. The Respondent No. 2 in support of his claim led evidence but right of the defendants to lead evidence stood closed vide order dated 16.7.2003. The resume of afore-stated proceedings of the lower Court shows that till the closure of right of defendants to lead evidence the appellant was not in attendance before the learned Addl. District Judge for the reason that no notice was issued to him and he had relinquished the charge of the post of Administrator, Municipal Corporation on 15.6.2001. The whole proceedings were conducted in his absence. The learned Addl. District Judge also did not take any step to ascertain the name of the incumbents of the posts of Administrator, Municipal Corporation, In-charge Officer of FWO and Municipal Magistrate (who were arrayed as Respondents No. 1, 2 and 3 in the application). After closing the right of the defendants to lead evidences, the learned Addl. District Judge initiated the proceedings to procure the attendance of the appellant and other officers. After securing the presence of officers including the present appellant, the learned Addl. District Judge neither afforded them an opportunity to lead evidence but instead heard the arguments; accepted the application filed by Respondent No. 2 under Order XXXIX Rule 2(3), CPC; directed to detain the appellant in civil prison; and, passed no order with regard to other defendants/officers. The proceedings conducted by the learned Addl. District Judge were neither fair nor in accordance with law. The learned Addl. District Judge was required: firstly, to check as to whether the respondents/defendants were impleaded by name; secondly, to get reply of all the alleged contemners; thirdly, to frame issues in the light of application and reply of alleged contemners; fourthly, to allow the applicant as well as the alleged contemners to lead evidence; and, fifthly, after hearing arguments to pass an order according to the conduct of each alleged contemner. The proceedings were not conducted in the above stated manner; and, thus it is clear that the learned Addl. District Judge had exercised his jurisdiction illegally and with material irregularity.

5. Leaving aside the afore-stated material irregularities committed by the learned Addl. District Judge, the evidence led by the Respondent No. 2 does not make out any case of contempt of Court or violation of temporary injunction as it does not show any intentional disobedience of the order by the present appellant. In order to constitute punishable contempt the disobedience must be willful [see Pitrus Lahara v. R.V. Dalal, (AIR 1953 Nag 179); and, Radhamohan Rana and others vs. Gobinda Gopalananda, (AIR 1951 Orissa 230)]. The mere unintentional disobedience to judgment, order or process of Court amounts to contempt in theory only and does not render a person liable to punishment. In this regard reference may be made to the case of State of Bihar vs. Rani Sonabati Kumari, (AIR 1954 Patna 513) and N. Baksi vs. O.K. Ghosh (AIR 1957 Patna 528). It goes without saying that penal provisions of law are always required to be applied with due care and caution, especially when the question of sentence of imprisonment and liberty of a citizen is involved. Before convicting and sentencing someone, the Court must, besides the violation of any order, satisfy itself that the violator of the stay order had intention to challenge the authority of the Court; and, it was not an act under some misunderstanding or misapplication. Existence of mens rea on the part of violator of injunctive order is essentially required to be explored and established beyond doubt. I am afraid the above said principles escaped from the consideration of learned Addl. District Judge who by misreading and non-reading of evidence passed the impugned judgment. The statements of the witnesses who appeared on behalf of the Respondent No. 2 do not show that the present appellant violated the injunctive order of the Court deliberately/intentionally or that he had challenged the authority of the Court. The observation regarding the conduct of the appellant as recorded by the learned Addl. District Judge in the impugned judgment does not find support from the record. Thus, the sentence awarded to the appellant is not sustainable.

6. In view of above, this appeal is allowed and judgment dated 31.10.2008 passed by the learned Addl. District Judge, Sialkot is set aside and the application filed by Respondent No. 2 under Order XXXIX Rule 2 (3), CPC is dismissed with no order as to cost.

(R.A.) Appeal allowed

PLJ 2014 Lahore 509 [Rawalpindi Bench Rawalpindi]

Present: M.Sohail Iqbal Bhatti, J.

MIRZA KHAN, etc.--Petitioners

versus

Mst. AJAIB SULTAN, etc.--Respondents

C.R. No. 524 of 2004, heard on 29.1.2014.

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

----S. 47--Re-calculation of shares--Attempt to prolong possession and deny fruits of decree--Validity--During pendency of execution proceedings an application for alteration of mode of partition and appointment of new local commission was filed which was rejected by trial Court--Filing of an application under Section 47, CPC for re-calculation of shares at such a belated stage seems to be an afterthought without discussing maintainability of application under Section 47, CPC which would be discussed in later part of the judgment--In an application under Section 47, CPC, questions which could have been raised in proceedings in suit but were not raised, could not be urged by judgment debtors before executing Court which was bound to execute decree as it is--Petitioners having failed to take a plea either in written statement or during proceedings before passing of decree; therefore, petitioners in execution proceedings could not take up plea which they had not taken before trial Court which was ultimately decreed and decree became final--Only intention regarding filing of an application under Section 47, CPC by petitioners at such a belated stage seems to be another attempt to prolong their possession and deny respondents fruits of decree passed by Civil Court. [Pp. 512 & 513] A, C, D & F

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

----S. 47 & O. XXI, R. 100--Scope of filing of an objection petition--Concept of--It is not out of place to mention that name of deceased never appeared during course of litigation which spread over a period of more than 15 years when application under Section 47 was filed--Petitioners could have mentioned such fact at time of filing of written statement or at time of recording of evidence--Scope of filing of an objection petition has an entirely different concept under Section 47, CPC and relevant provisions of Order 21, CPC. [P. 512] B

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

----S. 47--Jurisdiction of executing Court--Application might change and alter terms of decree--Redetermine liability of party--Validity--Executing Court, no doubt, can look into judgment in an application under Section 47, CPC, in order to find out that property brought for satisfaction of decree actually belongs to judgment debtors but cannot entertain application relating to dispute which may change and alter terms of decree; as neither executing Court could go behind decree nor it would have jurisdiction to re-determine liability of any party or re-consider law for that purpose. [P. 513] E

Mr. M.Aslam Malik, Advocate for Petitioners.

Mr. M.Safdar Samor, Advocate for Respondents.

Date of hearing: 29.1.2014.

Judgment

Through this civil revision, the petitioners have challenged the order dated 20-02-2004 passed by learned Civil Judge, 1st Class, Attock and judgment date 03.07.2004 passed by Additional District Judge, Attock.

1. The facts of the case are that respondents filed a suit for possession with regard to the two properties on 14-06-1989. Preliminary decree was passed in this case in favour of the respondents on 14.11.1990. In appeal, the decree was set aside by the learned District Judge, Attock. The order passed by the learned District Judge, Attock was challenged before this Court and the decree passed by learned trial Court was restored.

2. During pendency of execution proceedings, an application under Section 12(2) of, CPC was filed which was initially rejected by the learned trial Court and again the matter went upto the High Court. During the course of execution, local commission was appointed for separation of the shares of parties. Again an application was filed for alteration of mode of partition and prayer was made for appointment of new local commission. This application was rejected by the learned Civil Judge. The appeal filed was also rejected by learned Additional District Judge, Attock, however revision petition filed before this Court was allowed and the case was remanded with the direction to determine the shares of the petitioners in the disputed property.

3. When the case taken up for determination of shares of the parties, Petitioners No. 1 to 4 filed an application under Section 47 read with Section 151, CPC for correction of the shares. This application was dismissed by the executing Court through order dated 20.02.2004 and the appeal filed before learned Additional District Judge, Attock also met with the same fate, hence this revision petition.

4. The learned counsel for the petitioner argued that order and judgment of both the Courts below are against law. Both the Courts committed material irregularity while passing the impugned order and judgment.

5. It was further contended that upon an objection petition filed by the petitioners, the executing Court was under an obligation to frame necessary issue and call evidence before deciding the case to determine as to whether the predecessor-in-interest of the parties namely Muhammad Jeehad three sons and not two. The learned counsel for the petitioners relied upon 2013 YLR page 1516 titled "Rashid Ahmad through L.Rs & others vs. Nazar Hussain Malik & others" and 2013 YLR page 1890 titled "Rai Muhammad Riaz vs. Ejaz Ahmad".

6. On the other hand, the learned counsel for the respondents has drawn attention of the Court to the plaint and written statement. It has been argued by the learned counsel for the respondents that the suit for possession through partition was filed by the respondents claiming that they being the legal heirs of Ghulam Haider who was real son of Muhammad Jee (the actual owner of the disputed property) were entitled to the partition of the disputed property which was in exclusive possession of Defendant No. 1 to 4 being the legal heirs of Sumandar who was also a real son of Muhammad Jee.

7. In the written statement, the petitioners took the defence that although Ghulam Haider was a real son of Muhammad Jee, but Sumandar was an exclusive owner of the suit property. It is not out of place to mention here that the petitioners who were Defendants No. 1 to 4 in the suit never raised the objection that the suit was bad for mis-joinder and non-joinder of the parties as Muhammad Jee had a third son also namely Sikandar who passed away issueless.

8. Upon divergent pleadings of parties and recording of evidence, the learned trial Court passed the decree on 24.11.1990 determining the shares of the parties to the suit. Thereafter, during the execution proceedings, the matter went upto the High Court, the decree was upheld.

9. Now, I come to the issue raised in the present revision petition. The judgment debtors/revision petitioners filed an application for further correction of shares while taking the plea that original owner/predecessor-in-interest namely Muhammad Jee had three sons out of which Sikandar had passed away issueless in year 1932 and Ghulam Haider the predecessor of the respondents had also passed away. This application was filed in third round of litigation during the course of execution of the decree which was passed in year 1990.

10. I have perused the record carefully and have also given my consideration to the arguments advanced by both the counsel.

11. The filing of an application under Section 47, CPC for re-calculation of the shares at such a belated stage seems to be an afterthought without discussing the maintainability of application under Section 47, CPC which would be discussed in the later part of this judgment.

12. It is not out of place to mention that name of Sikandar never appeared during course of litigation which spread over a period of more than 15 years when the application under Section 47 was filed. The petitioners could have mentioned this fact at the time of filing of written statement or at the time of recording of evidence. The scope of filing of an objection petition has an entirely different concept under Section 47, CPC and the relevant provisions of Order XXI, CPC. Rule 100 of Order XXI, CPC reads as under:--

"Rule 100. Dispossession by decree holder or purchaser.--(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same."

1. In the present case, the petitioners are the judgment debtors whose rights have already been determined by a decree passed by a Civil Court in the year 1990. I am afraid that the judgment 2013 YLR page 1890 is not applicable upon the case of the petitioners as the petitioners are not the person other than the judgment debtors and moreover, have not been, till the time of filing of an application, dispossessed from the disputed property.

2. I am constrained to observe that in an application under Section 47, CPC, the questions which could have been raised in the proceedings in the suit but were not raised, could not be urged by the judgment debtors before the executing Court which was bound to execute the decree as it is.

3. The petitioners having failed to take a plea either in the written statement or during the proceedings before passing of decree; therefore, the petitioners in execution proceedings could not take up the plea which they had not taken before the trial Court which was ultimately decreed and the decree became final.

4. Executing Court cannot extend its jurisdiction to go behind the decree except where the decree was silent as to which property was subject matter of execution. Executing Court, no doubt, can look into the judgment in an application under Section 47, CPC, in order to find out that the property brought for the satisfaction of decree actually belongs to judgment debtors but cannot entertain the application relating to the dispute which may change and alter the terms of decree; as neither the executing Court could go behind the decree nor it would have jurisdiction to re-determine the liability of any party or re-consider the law for that purpose.

5. The only intention regarding filing of an application under Section 47, CPC by the petitioners at such a belated stage seems to be another attempt to prolong their possession and deny the respondents the fruits of the decree passed by the Civil Court as back as on 24.11.1990.

6. For what has been discussed above, I am not inclined to interfere with the impugned order and judgment passed by both the Courts below as no jurisdictional error or material irregularity has been committed.

7. Resultantly, this revision petition is dismissed.

(R.A.) Petition dismissed

PLJ 2014 Lahore 513

Present: Amin-ud-Din Khan, J.

Syed TAJAMAL HUSSAIN BUKHARI--Appellant

versus

KHALID PERVAIZ HAMID, etc.--Respondents

R.S.A. No. 145 of 2005, heard on 21.1.2014.

Contract Act, 1872 (IX of 1872)--

----S. 62--Suit for specific performance on basis of original agreement and novation of contract--Proof of--At time of novation of contract defendants were not owner of suit property--Application for correction of amount and date for payment was corrected by trial Court--Order was assailed through revision petition which was accepted--Challenge to--By novation of agreement, date for performance was extended--Agreement was cancelled with consent of parties and owners--Validity--Agreement pressed for grant of decree for specific performance was executed between parties when alleged seller was not owner of suit property--Original agreement as well as its novation was by one of defendants on his behalf and on behalf of other owners as their attorney but no power-of-attorney whereas agreement in favour of appellant is by all owners in person--When appellant appeared and made statement on oath that he was having no knowledge about any agreement to sell in favour of plaintiff, then onus shifted upon plaintiff to prove knowledge of appellant about his original contract at time of his agreement or sale-deed in his favour, in such context no such evidence has been produced--Appellant was in possession of suit property under sale in his favour and filing of suit after about 10 months of sale when sale in favour of appellant was in knowledge of plaintiff at time of novation of contract--Application for correction of remaining amount was moved whereas time already fixed by trial Court for payment of remaining amount was expired and trial Court passed order in favour of applicant/plaintiff and corrected amount--When application has been moved for correction of date and trial Court came to conclusion that date of payment was correctly mentioned in judgment & decree and dismissed application to that extent--Revisional Court was not having jurisdiction to extend time and presume that application had been moved for extension of time--Revisional Court was without jurisdiction and also not sustainable under law. [Pp. 517, 519 & 520] A, F, G & H

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

----Art. 129(e)--Contract Act, (IX of 1872), S. 62--Best evidence--Anti-dated agreement--Proving date of execution of agreement--Abstract of document with signatures of parties as well as their witnesses and further to produce stamp vendor with his register to prove issuance of stamp paper of document on specific date--Such best evidence was available with plaintiff to prove date of execution of agreement between parties but best evidence has been withheld--Under Art. 129(e) of Qanun-e-Shahadat Order, 1984, if a person withholds best evidence, presumption is that same evidence was against that person.

[P. 518] B

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

----Ss. 21(H) & 25--Agreement by a person without title--Validity--Such contract is not specifically enforceable. [P. 518] C

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

----S. 22--Grant of decree for specific performance is a discretionary relief--Validity--Court can exercise discretion in favour of a person who fully proves his entitlement for grant of a decree--Appellant cannot be burdened to prove bona fide purchase of suit property when possession was also delivered to him under sale. [P. 518] D & E

M/s.Asad Javed & Noor Muhammad Khan, Advocates for Appellant.

Mr.Shahid Iqbal Mian, Advocate for Respondents.

Date of hearing: 21.1.2014.

Judgment

Through this single judgment I intend to decide the above captioned appeal and Writ Petition No. 18455 of 2005, as common question of law and facts is involved in both these cases.

1. The brief facts are that on 07.12.1991 the Plaintiff-Respondent No. 6 filed a suit for specific performance against Defendants No. 1 to 5/Respondents No. 1 to 5 on the basis of an agreement to sell dated 18.03.1990, wherein the date for performance of agreement was 12.03.1991. Subsequently through novation of the contract the date was extended up to 10.11.1991. It is pleaded that the defendants/Respondents No. 1 to 5 have sold the land to the appellant/Defendant No. 6, therefore, the suit has been filed for specific performance by the plaintiff- Respondent No. 6. The written statement was filed by the defendants/Respondents No. 1 to 5 and also by the appellant/Defendant No. 6. The suit was hotly contested. Learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the completion of trial, vide judgment & decree dated 24.02.1994 passed by learned Civil Judge 1st Class, Ferozewala, suit was decreed subject to payment of Rs.1,30,470/- by the plaintiff till 01.03.1994, failing which the suit shall stand dismissed. The amount was not deposited till 01.03.1994 but an application was moved before the trial Court on 09.03.1994 for correction of amount as Rs.1,39,470/- instead of Rs.1,30,470/- and the date for payment of said amount as 01.04.1994 instead of 01.03.1994. The trial Court corrected the amount but vide order dated 17.04.1994 dismissed the application to the extent of correction of date for deposit of amount holding that the date conveyed to the plaintiff-decree holder was 01.03.1994 and it has correctly been mentioned in the judgment. The said order was assailed through revision petition, which was accepted vide order dated 16.06.2005. The matter of correction of date for deposit of remaining amount is subject matter of Writ Petition No. 18455 of 2005 which has been filed by Defendant No. 6 (present appellant), the transferee of suit property from the original owner through registered sale-deed. The instant Regular Second Appeal has also been filed by Defendant No. 6, the transferee of suit property through registered sale-deed in his favour.

2. Learned counsel for the appellant argues that there was an agreement to sell with regard to the suit property by the original owners of suit property i.e. Defendants No. 1 to 5-Respondents No. 1 to 5 in favour of Muhammad Khalid and Muhammad Shamsher sons of Muhammad Rasheed dated 31.01.1990, which has been produced as Ex.D-1, in which the date for performance was fixed as 13.03.1990 and by novation of that agreement through Ex.D-2, the date for performance was extended up to 31.03.1990 but vide endorsement on the backside of Ex.D-1 the agreement was cancelled on 14.04.1990 with the consent of parties and the owners not only returned the earnest money but also paid Rs.40,000/- more than the alleged purchasers i.e. Muhammad Khalid and Muhammad Shamsher and another agreement Ex.D-3 was also written to confirm that endorsement which was on the backside of Ex.D-1 and that the agreements Ex.D-1 and Ex.D-2 have been cancelled with the mutual consent of the parties to the agreement. Learned counsel for the appellant argues that defendants/Respondents No. 1 to 5 entered into an agreement to sell with regard to the suit property through registered agreement to sell (Ex.D-4) registered on 08.04.1990 with the appellant and the date of performance mentioned in the agreement was 20.04.1990 and through registered sale-deed dated 18.04.1990 (Ex.D-5) in favour of appellant/Defendant No. 6 the suit property was transferred; that the plaintiff/Respondent No. 6 claimed an agreement to sell in his favour with regard to the suit property dated 18.03.1990 which has been produced as Ex.P-1 and the novation of this contract through agreement (Ex.P-2) which is dated 12.03.1991; that the agreement in question in favour of plaintiff/Respondent No. 6 is forged and fictitious; that the alleged novation of contract is without authority as at the time of alleged novation which is of dated 12.03.1991 and has been produced as Ex.P-2, Defendants No. 1 to 5 were not owner of suit property as they transferred the suit property through registered sale-deed dated 18.04.1990 (Ex.D-5) long before said novation, for this score the suit of plaintiff/Respondent No. 6 was not competent and both the Courts below failed to exercise the jurisdiction vested in them by law and decision is contrary to law. Learned counsel for the appellant further argues that as respondents/Defendants No. 1 to 5 were collusive with the plaintiff, therefore, they only filed written statement and no evidence was produced by them; that the plaintiff has not produced evidence to the effect that when he came to know about the sale in favour of appellant/Defendant No. 6 and further there is no evidence on behalf of plaintiff that the appellant/Defendant No. 6 was in the knowledge of agreement to sell in their favour with regard to the suit property, whereas PW-3 has admitted that before novation of contract it was in the knowledge of plaintiff that the present appellant has purchased the suit property through registered sale-deed.

3. On the other hand, learned counsel representing the plaintiff/decree holder argues that there are concurrent findings of two Courts below that three witnesses have been produced to prove the execution of agreement (Ex.P-1) and novation of contract (Ex.P-2); that the appellant is not a bona fide purchaser; that when it is the case of appellant that the agreement in question is anti-dated and simultaneously pleading that the appellant is bona fide purchaser, therefore, the same are contradictory circumstances pleaded by the appellant. Learned counsel argues that no inquiry has been proved with regard to bona fide purchase by the appellant.

4. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

5. The suit for specific performance was filed on the basis of original agreement dated 18.03.1990 (Ex.P-1) and the novation of contract dated 12.03.1991 (Ex.P-2). Under the law the plaintiff was to prove the novated contract in accordance with Section 62 of the Contract Act, 1872, then he can press for the performance of said contract i.e. Ex.P-2. Against this novated contract there is a registered sale-deed (Ex.D-5) in favour of appellant registered on 18.04.1990, in this way, sale-deed was prior in time to the contract which is being pressed before the Court for grant of a decree for specific performance. In this eventuality, it is clear that at the time of novation of contract, Defendants No. 1 to 5 were not owner of suit property, therefore, they could not enter into agreement with the plaintiff and as per statement of PW-3 (Muhammad Abdullah) who is the witness of plaintiff/Respondent No. 6 that the sale of suit property in favour of Defendant No. 6 i.e. the appellant was in the knowledge of plaintiff at the time of novation of contract, in this view, it clearly shows that the agreement pressed for grant of decree for specific performance i.e. Ex.P-2 was executed between the parties when the alleged seller was not the owner of suit property. Further I have noticed that the original agreement as well as its novation i.e. Ex.P-1 and Ex.P-2 are by one of the defendants i.e. Defendant No. 1 on his behalf and on behalf of other owners i.e. Defendants No. 2 to 5 as their attorney but no power-of-attorney has been placed on the file, whereas the agreement (Ex.D-4) in favour of appellant is by all the owners in person.

6. When it was the case of appellant/Defendant No. 6 that the agreement (Ex.P-1) is anti dated, for proving the date of execution of agreement it was the duty of plaintiff-Respondent No. 6 to produce petition writer along with his Register wherein the petition writers keep the abstract of document with the signatures of parties as well as their witnesses and further to produce Stamp Vendor with his Register to prove the issuance of stamp paper of document on specific date. This best evidence was available with the plaintiff to prove the date of execution of agreement (Ex.P-1) between the parties but the best evidence has been withheld. Under Article 129(e) of Qanun-e-Shahadat Order, 1984, if a person withholds the best evidence, the presumption is that the same evidence was against that person.

7. In this view of the matter, in accordance with Section 25 of the Specific Relief Act, 1877 it is an agreement by a person without title and in accordance with Section 21(H) of the Act ibid, such contract is not specifically enforceable. Even otherwise, in accordance with Section 22 of the Specific Relief Act, 1877 grant of a decree for specific performance is a discretionary relief and the Court can exercise the discretion in favour of a person who fully proves his entitlement for grant of a decree. In this eventuality, the view taken by both the Courts below is not in accordance with law. When the position is that agreement pressed in civil suit is later in time than the sale-deed in favour of appellant, in these circumstances, the appellant cannot be burdened to prove the bona fide purchase of suit property when the possession was also delivered to him under the sale. In this context, light can be taken from the celebrated judgment of august Supreme Court reported as "PLD 2011 Supreme Court 296 (Hafiz Tassaduq Husain vs. Lal Khatoon and others)". I have also humbly gone through this judgment, in Para 9 whereof the august Supreme Court has considered its own judgments and the judgments of other Courts, that Para 9 is hereby reproduced for taking the benefit of law declared by the Apex Court:

"9. Considering the above rule in context with the proposition in hand in Lekh Singh v. Dwarka Nath and others (AIR 1929 Lahore 249) it has been held:

"The onus of proving that the subsequent purchaser had no notice of a prior claim lies on such purchaser; and the onus of such a negative issue is ordinarily discharged by a denial and by a negative evidence."

In Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25) this Court ordained:

"Under Section 27(b) of the Specific Relief Act negative is to be proved by the subsequent transferee. If he appears in Court and states on oath that he had no knowledge of the transfer that would be quite sufficient to discharge the burden and the onus will, then shift to the plaintiff to prove that the subsequent transferee had the notice of the original contract."

In Mst. Surraya Begum and others v. Mst. Suban Begum and others (1992 SCMR 652) while dilating on the proposition this Court laid down the law:

"Since in civil suits an issue is to be decided by preponderance of evidence, the initial burden would be on the plaintiff to prove his prior contract, which if discharged, the burden of proving the subsequent bona fide transfer for value without notice would be on the party alleging it. Very little evidence and in certain circumstances a mere denial regarding want of knowledge of the earlier contract would discharge this burden and shift the onus on the plaintiff to prove that the subsequent transferee had the notice of the earlier contract."

In the light of the noted authoritative pronouncements, it can be safely concluded that though the initial onus is on the subsequent vendee, however, it is light one, and once it is discharged by abiding by the criteria set out hereinabove, it shall be the burden and duty of the plaintiff to prove positively that the subsequent vendee had the notice of his sale agreement; besides, the subsequent transaction is without the passing of the due consideration; it is a colourable or a fraudulent transaction entered into with dishonesty of purpose by the vendor and the subsequent vendee in order to cause prejudice his rights under the sale agreement. This in our view to an extent should settle the law regarding the rule providing protection to bona fide purchaser for value without notice and the standard of proof thereof."

In this way, when the appellant appeared as DW-1 and made statement on oath that he was having no knowledge about any agreement to sell in favour of plaintiff, then the onus shifted upon the plaintiff to prove the knowledge of appellant about his original contract at the time of his agreement or sale-deed in his favour, in this context no such evidence has been produced. The appellant is in possession of suit property under the sale in his favour and filing of suit after about 10 months of sale when the sale in favour of appellant was in the knowledge of plaintiff at the time of novation of contract. Therefore, the findings recorded by both the Courts below on Issues No. 1, 6 and 9 are absolutely against the legal position, which are hereby reversed.

1. So far as the writ petition is concerned, the application for correction of remaining amount was moved on 09.03.1994, whereas the time already fixed by the trial Court for payment of remaining amount was expired on 01.03.1994 and the trial Court passed the order on 17.04.1994 in favour of applicant/plaintiff and corrected the amount. In the original judgment & decree amount was mentioned as Rs.1,30,470/- whereas actually the amount i.e. Rs.1,39,470/- was to be paid. Even the plaintiff/Respondent No. 6 has not shown that he deposited the amount mentioned in the original judgment & decree and the learned trial Court has decided the application by holding that the date for payment was correctly mentioned in the judgment & decree and as such there is no defect in that date, which was conveyed to the decree holder/plaintiff. When the application has been moved for correction of date and the trial Court came to the conclusion that date of payment was correctly mentioned in the judgment & decree and dismissed the application to that extent, the Revisional Court was not having jurisdiction to extend the time and presume that the application has been moved for extension of time. In this view of the matter, the view taken by the Revisional Court is without jurisdiction and also not sustainable under the law. In this view of the matter, the writ petition filed by the appellant succeeds.

2. In the light of what has been discussed above, regular second appeal and writ petition filed by the appellant are accepted. The impugned judgments & decrees dated 16.06.2005 and 24.02.1994 passed by learned Addl: District Judge & Civil Judge 1st Class, Ferozewala, respectively, are set aside. The result would be the suit filed by the Plaintiff/Respondent No. 6 shall stand dismissed with costs throughout.

(R.A.) Petition accepted

PLJ 2014 Lahore 520

Present: Muhammad KhalidMehmood Khan, J.

EJAZ RASOOL--Petitioner

versus

MEMBER NIRC, etc.--Respondents

W.P. No. 4240 of 2013, decided on 24.1.2014.

Punjab Industrial Relations Ordinance, 2010--

----S. 37(4)--Standing Order, 1968--S. 12(3)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Judgment in rem--Termination order from service was suspended by Labour Court--Revision petition was dismissed--Pronouncement of judgment of High Court in writ petition--Question for--Whether order of Supreme Court for suspension of judgment of High Court whereby declaration was granted by High Court declaring that where dispute between employee and employer having trans provincial character on basis of unfair labour practice--Determination--Labour practice exclusive jurisdiction is with NIRC but where dispute is an individual dispute between employee and employer having trans provincial character respective Labour Court has exclusive jurisdiction as said judgment will be deemed judgment in rem. [P. 523] A

Punjab Industrial Relation Ordinance, 2010--

----S. 37(4)--Order of termination from service was challenged before Labour Court--Question of--Whether individual grievance of employee of trans provincial establishment could be heard and decided by NIRC or Labour Court--Unfair labour practice--Validity--Individual grievance of an employee of trans provincial establishment will be heard by Labour Court only and where grievance of employee is based on unfair labour practice matter will be heard by NIRC, operation of judgment of High Court was suspended by Supreme Court. [P. 524] B

Constitution ofPakistan, 1973--

----Art. 189--Judgment in rem--Decision is binding on all other Courts--Question of--Whether stay granted by Supreme Court against a decision of High, which was judgment in rem suspended operation of law--Judgment in rem is different from judgment in personam--Validity--A judgment in rem is a judgment against a thing as contradistinguished from a judgment against a person or a judgment whereby a status is determined--A judgment in rem is an adjudication pronounced upon status of some particular subject-matter by a tribunal/Court having competent authority for that purpose--A judgment in rem is founded on a proceeding instituted, not against person as such, but against or upon thing or subject matter itself whose state or condition is to be determined. [P. 528] C & D

Mr. M.Irfan Khan Ghazanavi, Advocate for Petitioner.

Mirza Aamer Baig, Advocate for Respondents.

Date of hearing: 19.11.2013.

Judgment

Through this single judgment I propose to decide Writ Petition No. 4240/2013 and 2683/2013 as both the writ petitions are on the same proposition of law.

1. This Court in a judgment dated 26.11.2012 passed in Writ Petition No. 22454/2012 titled Rana Muhammad Rafi v. Member, NIRC, etc. has held as under:--

"Para No. 25: Where the grievance is in violation of Section 33(8) of PIRA, 2010 read with Standing Order 12(3) of the Industrial and Commercial Employment (Standing Order) Ordinance, 1968, the grievance will be within the cognizance of Labour Court established under IRA 2012 as defined in Section 2(xx) of IRA, 2012.

Para No. 32: There is no ambiguity in the provisions of Section 57(2)(b) of IRA 2012 which states that where the dispute has arisen out of unfair Labour practice, the jurisdiction of NIRC is absolute but where there is no allegation of unfair Labour practice, the jurisdiction will be triable by the Labour Court where the cause of action arisen.

Para No. 35: The above said provision of IRA is clear that any dispute between the employer and member of that between the employer and member of that establishment which operates in Islamabad Capital Territory will be triable by the Labour Court established in Province; hence the Labour Court at Rawalpindi will hear the grievance of the concerned parties".

1. On 23.8.2010, the Respondent No. 3 terminated the petitioners services. The petitioners on 28.1.2011 challenged their termination order dated 23.8.2010 under Section 37(4) of Punjab Industrial Relation Ordinance, 2010 read with Section 12(3) of Standing Order of 1968. The learned Labour Court vide order dated 17.5.2011 suspended the petitioners termination orderstill final disposal of their grievance petition. The respondent PTCL challenged the order dated 17.5.2011 by way of revision petition No. LHR 306/11, the said revision petition was, however, dismissed on 25.4.2012, the respondent PTCL further impugned the order dated 17.5.2011 and 25.4.2012 before this Court through Writ Petition No. 16801/2012 which was disposed of by this Court by maintaining the order dated 17.5.2011 and 25.4.2012, the order of this Court was that the Labour Court will decide the petitioners grievance petitions within a period of 15 days. The petitioners grievance petitions were pending disposal when on 13.11.2012 learned counsel for respondent submitted an order dated 13.11.2012 of Respondent No. 1/Member NIRC passed under Section 57(2)(b) of IRA on the application of Respondent No. 1 whereby the proceedings before the learned Labour Court were ordered to be stayed. After the pronouncement of judgment of this Court in Writ Petition No. 22454/2012 on 26.11.2012, the petitioners filed an application with the NIRC for recalling of order dated 13.11.2012. The learned Labour Court on 13.11.2012 accepted the petitioners application and recalled its order. The respondent PTCL assailed the judgment dated 26.11.2012 of this Court passed on Writ Petition No. 22454/2012 before the Hon'ble Supreme Court of Pakistan, the Hon'ble Supreme Court of Pakistan was pleased to suspend the operation of judgment of thus Court dated 26.11.2012. After the order of Hon'ble Supreme Court of Pakistan dated 07.1.2013 the Respondent No. 1 again started to proceed on an individual grievances not based on unfair Labour practice and directed to revive its earlier order vide order dated 6.2.2012. Through the present constitutional petitions, the petitioners have assailed the order dated 06.2.2012.

2. Respondents No. 3 to 6 filed their written statement and raised the objection that the judgment passed in Writ Petition No. 22454/2012 dated 26.11.2012 has been suspended by the Hon'ble Supreme Court of Pakistan in CPLA No. 1810/2012 and as such the member NIRC was justified to pass the impugned order.

3. Heard. Record perused.

4. The only question requires determination is whether the order of Hon'ble Supreme Court of Pakistan for suspension of the judgment of this Court whereby a declaration was granted by this Court declaring that where the dispute between the employee and the employer having trans provincial character arose on the basis of unfair Labour practice the exclusive jurisdiction is with the NIRC but where the dispute is an individual dispute between the employee and the employer having trans provincial character the respective Labour Court has the exclusive jurisdiction as the said judgment will be deemed the judgment in rem. The petitioner has placed on record photo copy of order dated 07.1.2013 of the Hon'ble Supreme Court of Pakistan passed in CPLA No. 1810/2012 which is read as under:

"Heard the learned ASC for the petitioner. Notice of this petition be issued to the respondents for a date in the first week of February, 2013. In the meantime, operation of the impugned judgment shall remain suspended".

1. Respondent No. 1 on relying the order of Hon'ble Supreme Court of Pakistan passed the following order:--

"In pursuance of order dated 07.01.13 of Honourable Supreme Court of Pakistan in Civil Petition No. 1810/12 operation of judgment dated 26.11.12 of the Honourable Lahore High Court, Lahore passed W.P. No. 22454/12 has been suspended and administrative order passed by Honourable Chairman of this Commission dated 04.12.2012 has been recalled with immediate effect vide his order dated 09.1.2013. Under the circumstances, the petitions filed on the ground of individual grievance can be entertained and decided by this Commission as earlier was being done.

In view of the aforementioned circumstances, the original petition Bearing No. 7A(195)/12-L is restored and same be relisted for 06.02.2013. Further proceedings will be recorded in the order sheet of said petition. With these observations the instant application is disposed of. File be consigned to the record room after due completion".

1. On 06.2.2013 the following order was passed by Respondent No. 1:

"Vide detailed separate order dated 22.01.13 the instant petition has been restored and relisted. Petition is adjourned to 04.3.2013 for filing of the reply to the main petition and stay application. Meanwhile proceedings in the petition of the respondent pending adjudication before learned Punjab Labour Court No. 1 Lahore will remain stayed".

1. From the perusal of judgment of this Court, subject matter of CPLA No. 1810/2012 shows that it is a declaration regarding the question whether the individual grievance of the employee of trans provincial establishment could be heard and decided by the NIRC or the Labour Court. The declaration of this Court was that the individual grievance of an employee of trans provincial establishment will be heard by Labour Court only and where the grievance of employee is based on unfair labour practice the matter will be heard by the NIRC, the operation of judgment of this Court was suspended by the Hon'ble Supreme Court of Pakistan.

This issue came up for hearing before the Hon'ble Supreme Court of Pakistan in the case Maj. Gen. (Rtd) Mian Ghulam Jilani v. The Federal Government through the Secretary, Government of Pakistan, Interior Division, Islamabad (PLD 1975 Lahore 65) and the Honourable Supreme Court of Pakistan held as under:--

"It is an admitted fact that while granting special leave to appeal, interim relief according to the nature of each case, can be granted to the petitioner. Sometimes the operation of the impugned order is stayed, sometimes status quo is granted and sometimes possession of a party is protected. In other words, some interim relief is granted to the petitioner during the pendency of his case before the Supreme Court. It is also not denied that after the grant of special leave to appeal if ultimately the appeal is accepted, that interim relief merges into the final decision given by the Court. If on the other hand, the appeal is rejected, then the interim relief granted earlier automatically disappears. The result is that interim relief given at the time of grant of special leave to appeal, cannot be termed as final. It can be altered or modified later on. After careful consideration of Article 189 of the Constitution, we are clearly of the view that none of the conditions enumerated above is attracted or applicable to the interim interlocutory order passed by the Supreme Court in General Abdul Hamid's case. This order neither decides a question of law, nor is based upon a principle of law, nor enunciates a principle of law. In this view of the matter, this order suspending the operation of the impugned order is not covered by Article 189 of the Constitution and consequently is not binding on the Courts in Pakistan, except of course on the parties in that case".

1. Again this issue came up for hearing before this Court in the year 2012 in a case reported as Mst. Meeran Bibi (Ameer Bibi) and 4 others v. Manager, Zarai Taraqiati Bank Limited, Phool Nagar, District Kasur and 2 others (2012 CLD 2029) and it was held as under:

"The impugned action of sale of mortgaged property is challenged presently for being contrary to the rule laid down by the Full Bench of this Court in Muhammad Umer Rathore v. Federation of Pakistan (2009 CLD 257) which has declared Section 15 ibid to be unconstitutional. That is a declaratory judgment with respect to the validity of a law and therefore, its effect operates in rem. Learned counsel informs that the Hon'ble Supreme Court has in one CPLA suspended the judgment of the learned Full Bench. However, that suspensory order is claimed to have effect inter parties only and not as a judgment in rem. Such an effect is established by the rule laid down in Gen (Rtd) Ghulam Jilani v. The Federal Government through the Secretary, Government of Pakistan, Interior Division, Islamabad (PLD 1975 Lahore 65)".

1. The issue whether stay granted by the Hon'ble Supreme Court of Pakistan against a decision of High Court, which is judgment in rem, suspends the operation of law or not? In Ghulam Jilani's case supra the Hon'ble Supreme Court of Pakistan has held as under:

"Thus, the expression "law declared" implies that the point decided by the Supreme Court is a legal one and of such general or public importance that it will occupy the place of law for the land: It will be the final decision of the Court on that particular point given after hearing the parties concerned. In other words it will be final adjudication of that particular point and so far as that point is concerned, nothing should remain pending before the Supreme Court after the declaration of that law".

1. Under Article 189 of the Constitution of Islamic Republic of Pakistan 1973 the condition necessary for making decision of Supreme Court binding on all Courts and authorities has been defined in the following judgment is as under:--

2. In a case reported as Yousaf A. Mitha and 3 others v. Aboo Baker and 2 others (PLD 1980 Karachi 492) the Sindh High Court has held as under:--

"In the other case of Ghulam Gillani v. Federal Government (3) an argument was advanced in that case by the Deputy Attorney General that against the judgment of the Lahore High Court in General Abdul Hamid's case the Government had filed a petition for special leave to appeal before the Supreme Court and that the Supreme Court while granting special leave to appeal had also suspended the operation of the impugned order in the meanwhile. According to the Deputy Attorney General, in that case, the order of the Supreme Court suspending the operation of the impugned order meanwhile was binding upon Lahore High Court under Article 189 of the Constitution as it amounted to a "law declared" by that Court. The Division Bench of the Lahore High Court however observed as follows:

"Thus, the expression "law declared" implies that the point decided by the Supreme Court is a legal one and of such general or public importance that it will occupy the place of law for the land. It will be the final decision of the Court on that particular point given after hearing the parties concerned. In other words it will be final adjudication of that particular point and so far as that point is concerned, nothing should remain pending before the Supreme Court after the declaration of that law."

1. I am, therefore, of the view that even if stay has been granted by the Supreme Court, unless the D.B decision of this Court (reported in PLD 1975 Kar. 944) is set-aside by the Supreme Court, the law laid down therein is binding on me apart from the fact that the stay granted will apply inter parties in that matter only".

2. This issue again came up for hearing before the Sindh High Court and the learned Division Bench of Sindh High Court in a case reported as Collector of Sales Tax and Federal Excise v. Messrs Wyeth Pakistan Limited (2009 YLR 2096) held as under:

"6. We have examined the judgments relied on by the learned counsel for the respondents wherein it has been held by the Lahore High Court and by at least two judgments of this Court that even if leave to appeal is granted against a judgment on a particular point and even if, the impugned order of the High Court is also suspended, the leave granting judgment of the Honourable Supreme Court does not decide a point of law and under Article 189 only such judgments of the Honourable Supreme Court are binding, which decides a question of law or enunciates a principle of law. This same point has been the subject matter of the judgment relied on by the learned counsel for applicant.

1. From a perusal of the above two extracts it is clear that even in these judgments it has been held that leave granted order does not constitute an order which has a binding effect under Article 189 of the Constitution. The learned counsel, for the applicant wants us to read these extracts in the manner that only a leave granting order without a suspension of the order, which has been relied upon does not have a binding effect but if the order is suspended it has a binding effect".

2. The Hon'ble Supreme Court of Pakistan in a case reported as Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 Supreme Court 483) held as under:--

"In the light of these precedents, there remains no doubt what so ever as to the exact meaning of Article 193 of the Constitution viz. that none other than the Chief Justice of Pakistan and not even an acting Chief Justice of Pakistan, who is a constitutional functionary, can be the consultee in terms of the aforesaid constitutional provision. It therefore follows (consistent with established precedent) that the persons comprised in the second category mentioned above were not judges of the High Courts regardless of the fact that they purported to occupy such office. In the circumstances, they are not in any doubt that they do not possess locus standi to file C.M.As. or review petitions, the sole object of which is to seek an order that they were validly appointed as judges and they are entitled to hold such office.

We have considered this argument advanced by the learned counsel but find little force to commend it. Firstly, it is to be noted that removal of the petitioners from the office being occupied by them was a direct consequence of the finding that the actions of General (Rtd.) Pervez Musharraf taken on 03.11.2007 were void ab-initio and secondly that the notifications of those petitioners who were appointed judges of the High Courts between 03.11.2007 and 23.3.2009 had not been issued after `consultation' with the Chief Justice of Pakistan and mandated by Article 193 of the Constitution. These finding enunciate a principle of law and are based on the interpretation of the relevant provisions in part VII of the Constitution including Article 193, supra relating to the judicature. The same are binding in view of the provisions as envisaged in Article 189 of the constitution which, inter alia, provide that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law shall be binding on all other Courts in Pakistan".

1. The dictums laid down by the Hon’ble Supreme Court of Pakistan show that "judgment in rem is a different from the judgment in personam". A judgment in rem is a judgment against a thing as contradistinguished from a judgment against a person or a judgment whereby a status is determined. A judgment in rem is an adjudication pronounced upon the status of some particular subject-matter by a tribunal/Court having competent authority for that purpose. It differs from a judgment in personam as this judgment is in form as well as substance between the parties claiming the right, and that it is so inter parties appears by the record itself. A judgment in rem is founded on a proceeding instituted, not against the person as such, but against or upon the thing or subject matter itself whose state or condition is to be determined. It is a proceeding to determine the state or condition of the thing itself, and the judgment is solemn declaration of the status of the thing, and it ipso facto renders it what it declares it to be.

2. The above judgment of this Court which is definitely judgment in rem will show that on the basis of suspension order of Honourable Supreme Court of Pakistan the Respondent No. 1 did not become entitled to pass the impugned order dated 22.1.2013 and 06.2.2013 as the judgment of this Court will remain in field and binding unless set aside or modified by the Honourable Supreme Court finally.

3. The upshot of the above discussions that both the orders dated 22.1.2013 and 6.2.2013 of Respondent NIRC are declared without lawful authority. Both the petitions are allowed with costs.

(R.A.) Petitions allowed

PLJ 2014 Lahore 529 [Bahawalpur Bench, Bahawalpur]

Present: Sadaqat Ali Khan, J.

SABIR ALI--Petitioner

versus

ADDL. DISTRICT JUDGE, etc.--Respondents

W.P. No. 268 of 2014, decided on 16.1.2014.

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

----S. 12(2)--Application for setting aside consent decree in civil suit for specific performance before trial Court--Failed to substantiate as no particulars or details were given in application u/S. 12(2), CPC while challenging judicial proceedings--Presumption of truth--Validity--Where the Court found that further inquiry was required, it would frame issues and record evidence of the parties and if it was of the opinion that no inquiry was required, it dispense with the same and can proceed further to decide the matter so it is also not incumbent on the trial Court to frame issues in each and every case, but it depends upon the facts and circumstances of each case--So the consent decree did not suffer from fraud, misrepresentation or want of jurisdiction and therefore, the same was not amenable to challenge under Section 12(2) of, CPC as none of the ingredients for challenging the validity of decree as contemplated in Section 12(2) of, CPC was available to the petitioner--Courts below had exhaustively dealt with each and every point alleged before them and orders of Courts below were neither perverse nor illegal. [P. 532] A & B

Mr.Ghazanfer Ali Khan, Advocate for Petitioner.

Date of hearing: 16.1.2014.

Order

The instant Writ Petition No. 268 of 2014 has been filed by the present petitioner against the order dated 11.12.2013 passed by Addl. District Judge, Bahawalnagar who dismissed the civil revision filed by the present petitioner and upheld the order dated 21.06.2013 of Civil Judge Ist Class, Bahawalnagar dismissing the application under Section 12(2) of, CPC filed by the present petitioner for setting aside the consent judgment and decree dated 24.01.2013 in the suit for Specific Performance of agreement to sell titled "Aurangzeb etc vs. Sabir Ali, detail of which is well mentioned in head note of the suit.

1. Precise facts of the instant matter are that the present petitioner Sabir Ali filed an application under Section 12(2) of, CPC before the trial Court for setting aside the consent judgment and decree dated 24.01.2013 passed in civil suit for Specific Performance of agreement to sell titled "Aurangzeb etc vs. Sabir Ali" with the allegation that he neither appeared before the trial Court on 04.09.2012 nor made any statement of compromise and the judgment and decree dated 24.01.2013 was a result of fraud, forgery and misrepresentation as someone else has been produced who recorded his statement of compromise illegally by respondent.

2. The application under Section 12(2), CPC was contested by the private respondents of the instant writ petition and after hearing the arguments, learned trial Court dismissed the application of the present petitioner on 21.06.2013.

3. Feeling aggrieved the present petitioner filed a civil revision before the District Judge, Bahawalnagar which was entrusted to Mr. Shamshad Ali Rana, Addl. District Judge, Bahawalnagar who after hearing both the parties, dismissed the same on 11.12.2013, hence this writ petition before this Court.

4. Learned counsel for the petitioner contended that both the impugned orders passed by Courts below are against law and facts on the file and have been passed in surmises and conjunctures. It is contended that both the Courts below did not adopt the proper legal procedure and disposed of the application of the petitioner without inquiry and without recording of the evidence. It is further contended that in the instant case, learned trial Court has not framed any issue for deciding the application of the petitioner despite of the fact that there were allegations in the application regarding misrepresentation, and of fraud of obtaining impugned consent judgment and decree dated 24.01.2013. He submitted that the petitioner neither appeared before any Court nor he got recorded any statement of compromise and judgment and decree dated 24.01.2013 is outcome of fraud, impersonation and misrepresentation which is liable to be set aside. It is contended that the petitioner also moved an application during the pendency of revision petition before the Court of learned Addl. District Judge, Bahawalnagar for referring the signature and the thumb impression of the petitioner to the Hand Writing Experts for comparison. Learned counsel for the petitioner has focused mainly on the point that after moving application under Section 12(2) of, CPC, the trial Court was duty bound to frame the issues and call the evidence of the parties and disposal of the application under Section 12(2) of, CPC without recording evidence is totally illegal and both the Courts below have committed illegality in this respect. Both the orders, thus, are liable to be set aside.

5. I have heard the learned counsel for the petitioner and perused the record.

6. Aurangzeb etc private respondents in the instant writ petition filed a suit for specific performance of agreement to sell pertaining to land measuring 59 kanals on 20.06.2012 against the present petitioner (Sabir Ali) in trial Court detail of which is mentioned in the head-note of the suit and during the pendency of the suit petitioner alongwith his counsel Rao Muhammad Akmal Taher Advocate appeared before the trial Court on 04.09.2012 and made a statement of compromise which is reproduced as under:--

1. The present petitioner was identified by his counsel Rao Muhammad Akmal Taher Advocate and learned trial Court obtained thumb impression as well as signatures of the petitioner on the margin of the order sheet and also obtained signatures of his learned counsel Rao Muhammad Akmal Taher Advocate as identifier of the petitioner and the suit of the private respondents of the instant writ petition was thereafter decreed on 24.01.2013. I have perused the application under Section 12(2), CPC moved by the present petitioner minutely where the present petitioner has not stated anywhere that Rao Muhammad Akmal Taher Advocate has not been engaged by him as his counsel in the suit titled Aurangzeb etc. vs. Sabir Ali and he had not identified him on 04.09.2012 while making the statement of compromise before the trial Court in above stated suit and likewise there is no affidavit of Rao Muhammad Akmal Taher Advocate annexed with the application stating therein that he did not identify the petitioner (Sabir Ali) being defendant at the time of recording statement of compromise on 04.09.2012 before the trial Court in above stated suit and no allegation against learned counsel Rao Muhammad Akmal Taher Advocate has been leveled by the present petitioner in his application that he wrongly identified him on 04.09.2012 before the trial Court in said suit while making statement of compromise. As far as the allegation that the compromise decree was obtained by fraud and misrepresentation, the petitioner failed to substantiate the same as no particulars or details thereof have been given in his application under Section 12(2) of, CPC while challenging judicial proceedings whereas presumption of truth is attached to that proceedings and mere application not supported by any material would not invariably warrant inquiry or investigation in each case. It is for the trial Court to see whether the facts and circumstances of the case require further probe into the allegations or not. Where the Court finds that further inquiry is required, it would frame issues and record evidence of the parties and if it is of the opinion that no inquiry is required, it dispense with the same and can proceed further to decide the matter so it is also not incumbent on the trial Court to frame issues in each and every case, but it depends upon the facts and circumstances of each case. The petitioner himself admitted in his statement of compromise recorded by the trial Court on 04.09.2012 in presence of his counsel that he had received Rs.16,20,000/- out of the Court and received Rs.6,30,000/- in the Court from the plaintiffs and has no objection for decreeing the suit of the plaintiff, so the consent decree did not suffer from fraud, misrepresentation or want of jurisdiction and therefore, the same was not amenable to challenge under Section 12(2) of, CPC as none of the ingredients for challenging the validity of decree as contemplated in Section 12(2) of, CPC was available to the petitioner. Both the Courts below have exhaustively dealt with each and every point alleged before them and orders of the Courts below are neither perverse nor illegal. Reliance is placed on case titled "Messrs Dadabhoy Cement Industries Ltd. and 6 others versus National Development Finance Corporation, Karachi" (PLD 2002 Supreme Court 500)."

For the foregoing reasons, the instant writ petition has no merits and the same is dismissed in Limine.

(R.A.) Petition dismissed

PLJ 2014 Lahore 533 [Multan Bench, Multan]

Present: Mahmood Ahmad Bhatti, J.

MEHMOOD-UR-REHMAN--Petitioner

versus

ADDITIONAL DISTRICT JUDGEetc.--Respondents

W.P. No. 11748-2013, decided on 6.2.2014.

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

----S. 14--Constitution of Pakistan, 1973, Art. 199--Power of ASJ to convert revision petition into appeal--Validity of orders as well as ex-parte judgment application seeking to set aside ex-parte proceeding and ex-parte judgment was dismissed while revision petition was filed within three weeks of final order--Challenged legality validity and correctness of judgment--Validity--Appellate Court had not committed material irregularity and the instant order not suffered from jurisdictional defect, petitioner was not required to file an appeal, following dismissal of his revision petition--Petitioner was made to go round in circles on account of abdication of jurisdiction on part of appellate Court--It is axiomatic that an act of Court should not prejudice rights of anybody--Impugned orders passed by F.A.C. were not sustainable in eyes of law--Both of them suffer from jurisdictional defects, and as such are amenable to jurisdiction of High Court under Art. 199 of Constitution--Revision petition filed by petitioner shall be converted into an appeal and deemed to be pending before F.A.C. who shall decide it afresh in accordance with law, after issuing fresh notices to parties. [P. 535] A, B & C

Nemo for Petitioner.

Mr.Rahat Masood Tippu, Advocate for Respondent No. 3.

Date of hearing: 6.2.2014.

Order

Mehmood-ur-Rehman, the petitioner has filed this petition to challenge the legality, validity and correctness of the judgment and decree dated 28.2.2012 passed by learned Judge Family Court, Vehari and the orders dated 24.1.2012 and 26.6.2013 passed by him as well as the orders dated 17.9.2013 and 27.9.2013 passed by an Addl. District Judge, Vehari.

1. The facts, in brief, are that Mst. Nazmeen, Respondent No. 3 instituted a petition for custody of minors, namely, Hamza and Hamad-ul-Rehman. For one reason or another, the petitioner was proceeded ex-parte and ex-parte judgment and decree was passed by learned Judge Family Court/guardian Judge, Vehari vide judgment and decree dated 28.2.2012. Thereafter, the petitioner herein moved an application seeking to set aside the ex-parte proceedings initiated against him vide order dated 24.1.2012, followed by the ex-parte judgment and decree dated 28.2.2012. However, his application was disallowed by learned Judge Family Court vide order dated 26.6.2013. As a result, the petitioner filed a petition before learned District Judge, Vehari to assail the validity of the ex-parte order dated 24.1.2012, ex-parte judgment and decree dated 28.2.2012 and the order dated 26.6.2013 by which the learned Judge Family Court had declined to set aside the ex-parte proceedings as well as the ex-parte judgment and decree passed against the petitioner.

2. Since the petitioner herein had not filed an appeal in terms of Section 14 of the West Pakistan Family Courts Act, 1964, rather had filed a revision petition to call into question the validity of the orders, judgment and decree passed by learned Judge Family Court, Vahari, an Addl. District Judge, Vehari dismissed the same vide order dated 17.9.2013, holding the same to be incompetent. Thereafter, the petitioner herein filed an appeal, thereby retracing his steps. Along with the appeal, an application under Section 5 of the Limitation Act, 1908 was also moved by him. Nevertheless, his appeal was also dismissed vide order dated 27.9.2013, holding the same to be barred by time. Hence this writ petition.

3. I have heard the learned counsel for Respondent No. 3 and also gone through the record with his assistance.

4. This is undeniable that the petitioner did not file an appeal in terms of Section 14 of the West Pakistan Family Courts Act, 1964 and due to ill advice filed a revision petition to assail the validity of the orders as well as the ex-parte judgment and decree dated 28.2.2012 passed by learned Judge Family Court, Vehari. But it could not be disregarded that the petitioner's application seeking to set aside the ex-parte proceedings and ex-parte judgment and decree dated 28.2.2012 was dismissed by learned Judge Family Court/Guardian Judge, Vehari, vide order dated 26.6.2013, while the revision petition was filed on 17.7.2013, meaning thereby that it was filed within three weeks of the final order passed against the petitioner.

5. Although Section 14 of the West Pakistan Family Courts Act, 1964 is completely silent on the question of limitation within which an appeal is to be filed, yet going by rule 22 of the West Pakistan Family Court Rules, 1965 the appeal could have been filed within a month. This being so, instead of taking a hyper-technical view and dismissing the revision petition filed by the petitioner vide order dated 17.9.2013, learned Addl. District Judge, Vehari was empowered to convert the revision petition into an appeal. It has repeatedly been held by the Superior Courts that an appeal may be converted into revision petition and vice versa. In this respect, reference may well be made to the judgment reported as "Muhammad Ramzan v. Fatima and 3 others" (PLD 2004 Lahore 17). In this judgment, it was observed as under:--