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1994 M L D 2414

[Karachi]

Before Abdul Rahim Kazi, J

MUHAMMAD IDREES---Appellant

versus

LIAQ AHMED ---Respondent

First Rent Appeal No. 55 of 1992, decided on 4th November, 1992

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

----S. 21---Ex pane order of Rent Controller---Appeal---Competency---Person affected by


such ex parte order not filing appeal although appeal was competent---Effect---Rent
Controller refusing to set aside ex parte order passed by him against tenant---Tenant
having not availed of opportunity of filing appeal, could nevertheless file appeal against
final order of ejectment under provision of S. 21, Sindh Rented Premises Ordinance,
1979, whereby any aggrieved party affected by an order not being an interim order could
prefer appeal within thirty days---Tenant's appeal being appeal against final order of
ejectment and being within thirty days, thereof, was maintainable and within limitation.

Haji Usman v. Haji Shafiur Rehman 1988 CLC 1443; Farhatullah Khan v. Mustafa Ali
Khan PLD 1979 Lah. 132; Mashlakuddin v. S. Ali Haider 1982 CLC 644 and
Muhammad Shafi v. Bambino Ltd. 1983 CLC 985 ref.

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

---S. 15---Civil Procedure Code (V of 1908), O.IX, R. 6---Ex parte proceedings---


Participation in further proceedings by affected person ---Extent--Defendant/opponent in
case of ex parte proceedings, could not be debarred from participating in further
proceedings such as cross-examination of witnesses or submission of arguments.

(c) Sink Rented Premises Ordinance (XVII of 1979)---

----S, 15---Ejectment application---Ex parte proceedings against tenant---Validity


---Tenant had not been given due opportunity to defend his case for he was never
supplied with a copy of main case before passing ex parte order or even copy of affidavit-
in-evidence filed subsequently---Ex parte order as also final order of ejectment passed
against tenant were set aside and case was remanded to Rent Controller to proceed with
the matter in accordance with law.

Ch. Muhammad Iqbal for Appellant.


Nazar Akbar for Respondent.

Date of hearing: 4th November, 1992.

JUDGMENT

This appeal arises out of the order passed by IIIrd Senior Civil Judge/Rent Controller,
Karachi (Central) in Rent Case No. 445 of 1990 whereby the ejectment of the present
appellant has been ordered from the Shop No. 12, Group No. 1, Plot No. 10, Central
Commercial Area, Liaquatabad, Karachi. Admittedly, the present respondent is the
owner/landlord of the said shop while the present appellant is tenant at a monthly rent of
Rs.105.

The facts relevant for the purposes of this appeal are-that after filing of the said rent case
various attempts were made by the present respondent to get the appellant served with the
notice of the case and it appears from the record that on 2/3 occasions, the registered
notice was delivered on the given address of the appellant but all the same the Rent
Controller ordered fresh notice on every occasion. Ultimately, on 31-3-1991, it was
ordered that fresh notice to the opponent be issued on costs by pasting. However, the
record shows that a notice was issued which bears the endorsement of the bailiff showing
that it was delivered to one Sarfaraz, who was present at. the shop. The Rent Controller
on 21-5-1991 held the service good on the basis of such endorsement of the bailiff and
acknowledgement due receipts of postal authorities and the case was adjourned to 3-7-
1991 for filing of the written statement. On 3-7-1991, Mr. Mansoob Ali Qureshi,
Advocate appeared on behalf of the present appellant and moved application for supply
of copy of the main application. The order sheet of the Rent Controller shows 'that an
order was passed on this date directing the respondent who was present in person to
supply the copy of rem application on 7-7-1991, to which date the case was adjourned.
Again the order sheet on 7-7-1991 shows that Advocate for the applicant was present
while none was present for the opponent/tenant and, therefore, the matter was ordered to
proceed ex parte against him and put off to 7-8-1991 for affidavit in ex pane proof. On 7-
8-1991 the Advocate for the applicant/landlord filed affidavit-in-ex parte proof whereas
on the same day, the Advocate for the opponent/tenant was supplied with the copy of the
main application and on the same day he moved an application for setting aside ex parte
order. This application for setting aside of ex parte order was dismissed on 4-11-1991 an t
finally on 15-12-1991 the judgment was announced directing the present appellant to be
ejected from the said shop. Being aggrieved, the appellant has preferred this appeal.

I have heard the learned counsel for the parties. Ch. Muhammad Iqbal, the learned
counsel for the appellant has argued that in the first instance, the present appellant was
never served with the copy of the main rent case and, therefore, no orders directing the
case to proceed ex parte against him could have been passed. He has further submitted
that the final order of ejectment passed against the present appellant is a consequence of
the orders passed on 7-7-1991; and that in the appeal, the whole matter is re-opened as
an appeal as nothing to a constitution of the original case. He has further submitted that
the order sheet itself shows that the copy was supplied to him on 7-8-1991, whereas ex
parte order was passed against him on 7-7-1991 a month earlier. He has placed reliance
on the case of Haji Usman v. Haji Shafiur Rehman (1988 CLC 1443).

As against this Mr. Nazar Akbar, the learned counsel for the respondent has submitted
that the present appellant is guilty of negligence on his part as admittedly he was served
with the notice and, therefore, he could not take the plea that the copy was not supplied to
him as the normal practice is that bailiff always served the notice alongwith the copy of
proceedings. The learned counsel has further submitted that on 3-7-1991 the copy was
already available on Court record as the same had been supplied by the respondent even
prior to that. He has also submitted that on 7-7-1991 the appellant remained absent and it
was his duty to have appeared on that date and to have collected the copy himself. He has
further submitted that the appellant has not challenged the orders passed on 4-P1-1991
whereby his application seeking the setting aside .of the ex parte orders have been
rejected and by a lapse of a period of 30 days therefrom the said order had attained
finality and could not now be re-opened. He has placed reliance on the Division Bench
judgment of Lahore High Court in the case of Farhatullah Khan v. Mustafa Ali Khan
(PLD 1979 Lahore 132). A further reliance has been placed on the case of Mashlakuddin
v. S. Ali Haider (1982 CLC 644) and also the case of Muhammad Shafi v. Bambino Ltd.
(1983 CLC 985).

I have considered the submissions made by the learned counsel for the parties. It may be
observed that as far as the question with regard to maintainability of an appeal against an
order passed by Rent Controller refusing to set aside ex parte order, there can be no cavil
about the legal proposition that such order is appealable. But the question that requires
consideration is whether the availability of such appeal, not having been availed by the
affected party, would apply as a bar to filing of the appeal and challenging the final order.
Section 21 of the Sindh Rented Premises Ordinance, 1979 provides that and' party
aggrieved by an order not being an interim order passed by the Controller prefer an
appeal within 30 days. This appeal, therefore, being an appeal challenging the final order
of ejectment and being within 30 days thereof is maintainable and is within limitation.

Now coming to the merits of the case, the order sheet which is placed on record shows
that on 3-7-1991, the Rent Controller had directed the applicant/landlord, who was
present on this date in person, to supply the copy to the present appellant. This order
sheet of 3-7-1991 does not show if the Advocate for the applicant/landlord was present.
Now if the contention of the learned counsel for the respondent is to be accepted to the
effect that the copy had already been placed on the record of the Court and on this date, it
was on the record then why would the Rent Controller direct the applicant to supply such
copy instead of getting the copy delivered to the Advocate for the appellant in Court. A
reference may also be made to the notice issued to the appellant for 21-5-1991 on the
basis of which the Rent Controller had held the service to be good. This notice does not
show if the copy was attached to the notice. Also the report of bailiff does not show that
he had delivered the copy of the application to the appellant. The endorsement of bailiff
shows that only copy of notice was delivered to one Sarfaraz who was present at the
shop. These facts do go to show. that- no such copy was delivered to the appellant till 3-
7-1991, whereas it is required of the Court to serve the defendant or opponent with the
copy of the application or plaint or any proceedings which are filed against him. Again a
reference to the order sheet dated 7-7-1991 shows that no such copy was delivered. All
that this order sheet shows is that none was present for the present appellant. I have gone
through the record of the lower Court. There is no such copy available on the record
which could be delivered to the other side. Throughout the order sheet of the lower Court
it has not been shown that such copy has been delivered to the present appellant nor the
learned counsel for the respondent could show any proof that the respondent or his
counsel has served such copy on the appellant at any stage. However, a reference to the
order sheet of 7-8-1991 shows that the copy was supplied to the present appellant but by
this date the Rent Controller had already passed an order to proceed ex parte against him.
In such eventuality the present appellant could not have filed the written statement unless
he was permitted to do so by a specific order passed by the Rent Controller. Even on this
date it is not shown if the copy of the affidavit-in-evidence, filed by the respondent, was
supplied to the appellant. It is settled law that even in case of ex parte proceedings the
defendant or opponent cannot be debarred from participating in further proceedings such
as cross-examination of the witnesses or submissions of argument. In the case of Haji
Usman v. Haji Shafiur Rahman, Saleem Akhtar, J. (as his Lordship then was) has held as
under:--

"Another aspect of the case is that even if the applicant was declared ex parte he
could not be debarred from taking part in the proceedings. He had been debarred
from filing written statement. After the respondent had filed ex parte proof as the
appellant and his Advocate were present they should have been allowed the
opportunity to cross-examine the witnesses, which opportunity was not given to
them. Without giving such opportunity to the appellant the Controller should not
have reserved the matter for orders. If the appellant and his Advocate would have
remained absent when the affidavit of proof was filed the Controller would have
been justified in reserving or pronouncing the order. The impugned order is,
therefore, set aside. The matter will be sent back to II Controller (South), Karachi
and the parties are directed to appear before him on 11-5-1988 for which date no
notice shall be issued to them."

From the above discussion, it appears that the present appellant had not been given due
opportunity to defend his case as he was never supplied with the copy of the main rent
case before passing ex parte order or even copy of the affidavit-in-evidence filed
subsequently. Even otherwise the law favours adjudication on merits. In this view of the
matter, I am inclined to accept this appeal, set aside the impugned orders passed by the
Rent Controller and remand the case to the lower Court with the direction that the
appellant be permitted to file his written statement within 15 days from the date of receipt
of R & P before the Rent Controller and to proceed with the matter in accordance with
law. The Advocates for the parties .who are present have consented to appear before the
Rent Controller on 19-11-1992 before IIIrd Senior Civil Judge/Rent Controller, Karachi
(Central). However, there be no order as to costs.

A.A./M-1960/K Appeal accepted.


2003 C L C 44

[Lahore]

Before Farrukh Lateef J

SARFRAZ AHMAD KHAN---Petitioner

Versus

DISTRICT JUDGE, MULTAN and 2 others---Respondents

Writ Petition No.7471 of 2000, decided on 26th June, 2002.

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

----S. 13---Constitution of Pakistani (1973), Art.199---Constitutional petition


---Ejectment of tenant---Striking off defence---Ex parte proceedings against tenant---Plea
of non-service of summons and fraud--Tenant was represented by counsel in the
proceedings and the counsel after obtaining four adjournments for filing reply to the
petition defaulted in filing the same, whereafter defence of the tenant was struck off---
Evidence of landlord was recorded in presence of the counsel of the tenant who did not
cross-examine the witnesses, in spite of opportunity was provided to him for
cross-examination---Eviction order was passed by the Rent Controller and the same was
maintained by the Appellate Court---Tenant contended that summons was not served on
him and fraud was committed---Validity---If the counsel for tenant chose not to cross-
examine the witnesses in spite of opportunity provided to him, no inference of fraud
could have been drawn by the fact of not diligently conducting the case---Fact of not
cross-examining the witness by a counsel did not lead to an inference or conclusion that
fraud was committed by the opposite-party---Rent Controller had jurisdiction to decide
ejectment petition under the West Pakistan Urban Rent Restriction Ordinance, 1959, and
appeal against order of Rent Controller was provided under the law before the District
Court---Tenant had himself invoked the appellate jurisdiction of District Judge, hence
failing there it did not lie in his mouth to say that the order passed by the Appellate Court
was without lawful authority---Orders passed by the Rent Controller and Appellate Court
were not without jurisdiction or without lawful authority---Constitutional petition was
dismissed in circumstances.

Muhammad Lehrasab v. Mst. Aqeei-un-Nisa and 5 others 2001 SCMR 338; Assistant
Commissioner and others v. Abdul Ghaffar and others PLD 1994 Pesh. 161; Haji Usman
v. Haji Shafiur Rehman 1988 CLC 1443 and Haji Faqir Muhammad v. Hazratullah 1989
CLC 252 distinguished.

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


----S. 13---Ejectment of tenant---Ex parte proceedings---Striking off defence---Ex parte
proceedings were initiated against tenant and eviction order was passed against
him---Tenant in his application for setting aside ex parte proceedings did not mention that
he had not appointed counsel or power of attorney submitted by the counsel did not
contain his signatures and of the counsel or that the signatures of the tenant on the power
of attorney were forged---Rent Controller declined to set aside ex parte proceedings and
defence of the tenant was struck off---Validity---As no such allegation was mentioned in
application for setting aside of ex parte proceedings, the Rent Controller had rightly
dismissed the application in circumstances.

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

----S. 13---Ejectment of tenant---Ex parte proceedings---Striking off defence---Counsel


and client---Plea raised by the tenant was that the power of attorney submitted on his
behalf before Rent Controller did not contain signatures of the counsel---Effect---As the
counsel for the tenant had been appearing before the Rent Controller, therefore,
non-signing of power of attorney by the counsel was not of much significance---When
power of attorney contained signature of the tenant, then any omission on the part of
counsel in signing the power of attorney was of no legal consequences---Rent Controller
had rightly not set aside the ex parte proceedings.

(d) Affidavit---

---- Certificate of Oath Commissioner---Value---Affidavit did not bear requisite


certificate of Oath Commissioner certifying that contents of the document were stated on
oath or solemn affirmation before him by deponent and that the deponent was either
personally known to him or was identified before him by a person known to him (Oath
Commissioner)---Without such certificate, and without appearance of the deponent
before Court, the affidavit could not be deemed as an affidavit in the eye of law and had
no legal value in circumstances.

(e) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Evidence recorded by Rent


Controller---Non-filing of the copy of evidence with Constitutional
petition---Effect---High Court refused to give any observation on the quality or quantity
of evidence in circumstances.

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

----S. 13---Ejectment of tenant---Landlord and tenant, relationship--Proof---Title of


landlord, establishing of---Defence of tenant was struck oft' for not filing reply to the
ejectment petition---Counsel who appeared on behalf of the tenant before Rent Controller
had not cross-examined the witnesses produced by the landlord---No evidence about
version of the tenant regarding title of landlord and denial of relationship between the
parties was available on record---Effect---In absence of such material, the Rent Controller
'could not ask the landlord to have his title established from the Civil Court before
seeking eviction of the tenant---Landlord, in such a case was not supposed to prove his
title in the ejectment petition but he had only to prove that the respondent was his tenant
and was liable to be evicted on the grounds mentioned in the ejectment petition---Rent
Controller had rightly accepted the ejectment petition on the basis of evidence produced
by the landlord in circumstances.

(g) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition ---Limine stage---Filing of written statement by


respondent---Scope---When Constitutional petition is at limine stage there is no occasion
of submitting written statement.

Haq Nawaz and others v. Province of Punjab and others 1997 MLD 299 distinguished.

(h) Constitution of Pakistan (1973)---

---Art. 199---Constitutional jurisdiction of High Court---Scope---Powers of High Court in


Constitutional jurisdiction are not analogous to those exercised by it in appeal---High
Court cannot sit as Court of Appeal in the exercise of Constitutional jurisdiction which
can only be exercised if the lower Court has not exercised its jurisdiction or acted without
jurisdiction.

Syed Kabeer Mahmood for Petitioner.

Syed Athar Hussain Bokhari for Respondent No.3.

Date of hearing: 18th June, 2002.

JUDGMENT

In this writ petition orders dated 30-3-2000 and 28-6-2000, respectively passed by the
learned Rent Controller, Multan and the learned District Judge, Multan are assailed as
illegal, against facts without lawful authority and of no legal effect.

2. Brief facts giving rise to the petition are that on 18-2-1999 Ghulam Hassan Khan
(respondent No.3) filed an ejectment petition against Sarfraz Ahmad Khan (writ
petitioner) for his eviction from House No.213/J, Shah Rukne Alam Scheme, Phase II,
Multan on the grounds of default in payment of rent, bona fide personal need and
committing of acts by the writ petitioner which had impaired materially the value and
utility of the premises.

3. Counsel for the writ petitioner appeared before the Rent Controller on 25-5-1999 and
sought an adjournment for filing reply to the, ejectment petition. However, when reply
was not filed despite four opportunities, defence of the writ petitioner was struck off by
the Rent Controller on 8-7-1999. Thereafter, evidence of respondent No.3 (landlord) was
recorded in presence of Mian Ashfaque Ahmad, Advocate counsel for the petitioner. The
case was thereafter 'fixed for final arguments when an application was moved by the
petitioner for setting aside ex parte proceedings against him. The said petition was
opposed by respondent No.3, and was eventually dismissed on 30-3-2000. On same day,
relying on the evidence produced by respondent No.3, the ejectment petition was
accepted and the petitioner (tenant) was directed to hand over vacant possession of the
premises to respondent No.3 within one month.

4. Aggrieved thereby the petitioner filed an appeal before the learned District Judge,
Multan assailing both the aforesaid orders of the Rent Controller; however, the appeal
was also dismissed on 28-6-2000 as aforesaid.

5. Learned counsel for the petitioner, while assailing the impugned orders of the learned
Rent Controller and the learned District Judge urged that:--

(i) Petitioner is in possession of the premises in his own right as owner thereof
and relationship of landlord and tenant never existed between the parties.

(ii) Petitioner had never engaged Mian Ashfaque Ahmad, Advocate as his counsel
and the power of attorney available on record of the Rent Controller allegedly
submitted by Mian Ashfaque Ahmad, Advocate does not bear the signatures of
Mian Ashfaque Ahmad, Advocate and signatures of the petitioner on the said
document are not identical with his genuine signatures.

(iii) In fact fraud was committed with the petitioner by respondent No.3, because
according to the order-sheet, presence of; petitioner's counsel is marked on
various dates of hearing from 25-5-1999 to 30-10-1999 and even on the date
when evidence was recorded by the Rent Controller but cross-examination was
not conducted on the witnesses produced by respondent No.3, by the petitioner's
counsel hence it can be easily inferred that fraud was committed. In this behalf an
affidavit of Mian Ashfaque Ahmad, Advocate is also annexed with the writ
petitioner as Annexure "E/2".

(iv) Relationship of landlord and tenant between the petitioner and respondent
No.3, was not proved as no rent deed was produced and in the absence of rent
deed, 'Rent Controller should have decided the issue against respondent No.3, to
get his title established from Civil Court before seeking ejectment; hence for the
said reason also the impugned orders are not sustainable.

(v) Respondent No.3, had claimed as landlord on the basis of having purchased
the premises from the petitioner but he failed to establish the factum of purchase
and could not prove that he was owner of the premises; and that
(vi) Respondent No.3, did not submit any written statement to controvert' the facts
stated in the writ petition, therefore, he would be deemed to have admitted
correctness of the facts stated in the writ petition.

6. In support of his arguments learned counsel for the petitioner placed reliance on the
following authorities:--

(a) Haq Nawaz and others v. Province of Punjab and others 1997 MLD 299.

(b) Muhammad Lehrasab v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338.

(c) Assistant Commissioner and others v. Abdul Ghaffar and others PLD 1994 Pesh. 161.

(d) Haji Usman v. Haji Shafiur Rehman 1988 CLC 1443 (Karachi); and

(e) Haji Faqir Muhammad v. Hazartullah 1989 CLC 252 (Karachi).

7. Syed Athar Hussain Bokhari, Advocate appearing on behalf of respondent No.3 had,
during his arguments, fully supported the impugned orders.

8. Arguments heard; writ petition and all its Annexures perused.

9. Adverting to the above first contention of the learned counsel for the petitioner, it may
be observed that there was virtually nothing on record on the basis of which the Rent
Controller or the Appellate Court could have inferred that the petitioner was the owner of
the premises.

10. Referring to the above-stated second submission of the learned counsel for the
petitioner, it may be observed that the only ground taken by the petitioner in his
application for setting aside ex parte proceedings was that respondent No.3 in collusion
with the field staff had procured the ex parte proceedings against the petitioner on the
busts of incorrect report of the field staff.

In the said application he did not allege that Mian Ashfaque Ahmad Advocate who had
been appearing on his behalf before the Rent Controller and had been representing him,
was not engaged by him or that power of attorney submitted by the said Advocate was
riot signed by the said Advocate and that signatures on that power of attorney purporting
to be his signatures were forged.

According to record the petitioner was represented before the Rent Controller by the said
Advocate. Evidence of respondent No.3 was also admittedly recorded by the Rent
Controller in presence of the said Advocate. Presumption of correctness is attached to the
judicial proceedings and judicial record. Since the only ground taken up by the petitioner
in his application for setting aside the ex parte proceedings was irregularity in the service
of summons hence even if it be assumed that the said allegation was correct and
summons were not served on the petitioner, that fact per se was not a good cause for
setting aside the ex parte proceedings because non-service of summons was not of any
significance in view of the fact that petitioner was represented in the Court by an
Advocate, who after obtaining four adjournments for filing reply to the rent petition
defaulted in filing the same where-after defence of the petitioner was struck off. The
matter did not end there but evidence of respondent No.3 was also recorded in presence
of the petitioner's counsel. It is not alleged in the writ petition that the Rent Controller
had not allowed the petitioner's counsel to cross-examine the witnesses of respondent
No.3. If the counsel chose not to cross-examine the witnesses in spite of opportunity
provided to him, no inference of fraud could have been drawn by that fact of not
diligently conducting the case as was alleged by the petitioner's counsel.

11. As the petitioner, was represented in the rent proceedings, and since there was no
allegation in the application for setting aside the ex parte proceedings, that the said
counsel was not appointed by the petitioner or that power of attorney submitted by the
counsel did not contain signatures of the counsel and the signatures of the petitioners on
that power of attorney were forged, the said grounds could not have been considered by
the Rent Controller while disposing of the application for setting aside the ex parte
proceedings.

12. The single ground mentioned in the petition as aforesaid, was obviously not at all a
good ground for setting aside ex parte proceedings hence no illegality was committed by
the Rent Controller in dismissing the said application.

So far as the non-signing of power of attorney by the counsel is concerned, it is not of


much significance because the said counsel had been appearing before the Rent
Controller as counsel for the petitioner hence any omission on his put in signing the
power of attorney was of no legal consequence when the said document contained
signatures of the petitioner which were not disputed in his application moved before the
Rent Controller for setting aside the ex pate proceedings.

13. Reverting to the above-stated third argument of the petitioner's counsel, it has
91ready been observed in the preceding paragraphs that fact of not cross-examining the
witnesses by a counsel does not lead to an inference or conclusion that fraud was
committed by the opposite-party.

So far as the affidavit of Mian Ashfaque Ahmad, Advocate is concerned, it is worth notice
that this document Annexure "E/2" was neither submitted before the Rent Controller nor
before the Appellate Court. For the first time it has been produced in this writ petition. A
perusal thereof shows that it does not bear the requisite certificate of the Oath
Commissioner certifying that contents of the said document were stated on oath or
solemn affirmation before him by the deponent and that the deponent was either
personally known to him or was identified before him by a person known to him (Oath
Commissioner).

14. Without the said certificate, the so-called affidavit Annexure "E/2", cannot be deemed
as an affidavit in the eye of law and has got no legal value. Mian Ashfaque Ahmad,
Advocate did not appear before this Court to verify the said document. Version of the
petitioner regarding not appointing Mian Ashfaque Ahmad, Advocate, appears to be an
afterthought which was coined at the time of filing appeal. At that stage it was not alleged
that signatures on the power of attorney purporting to be that of the petitioner were forged
nor affidavit of Mian Ashfaque Ahmad, Advocate was produced. Version regarding the
affidavit and the allegation that signatures of the petitioner on the power of attorney are
forged has been narrated for the first time in the writ petition.

15. Reverting to the above 4th and 5th submissions of the learned counsel for the
petitioner, it may be observed that copy of evidence recorded by the Rent Controller is
not annexed with the writ petition hence no observation can be given by this Court on the
quality or quantity of evidence which was produced at the trial by respondent No.3,
before the Rent Controller.

A perusal of impugned judgment reveals that nothing was produced on record by the
petitioner in support of his contentions which have been raised in this writ petition. In this
writ petition it is admitted that defence of the petitioner was struck off for not filing reply
to the rent petition and that Mian Ashfaque Ahmad, Advocate who had appeared on
behalf of the petitioner before the Rent Controller had not cross-examined the witnesses
produced by respondent No.3. It is, therefore, obvious that version of the petitioner now
put forth before this Court regarding his title and denial of relationship, was not available
on record of the Rent Controller hence in the absence of such material there was no
occasion for the Rent Controller to have asked respondent No.3, to have his title
established from the Civil Court before seeking eviction. Respondent No.3 was not
supposed to prove his title in the ejectment petition, he had only to prove that respondent
in that petition (writ petitioner) was his tenant and he was liable to be evicted on the
grounds mentioned in the ejectment petition. The learned Rent Controller had accepted
the ejectment application on the basis of evidence produced by respondent No. 3.

16. Adverting to the last submission of the learned counsel for the petitioner, it may be
observed that this writ petition is not admitted; only pre-admission notice was issued to
the respondents in response whereof counsel for respondent No.3 appeared and sought
permission to contest the same at the limine stage. He was allowed to contest the petition
at the limine stage, therefore, when the writ petition is yet at the limme stage there was no
occasion of submitting written statement, hence the authority cited by the learned counsel
for the petitioner viz. 1997 MLD 299 is not applicable. In 2001 SCMR 338 it is held that
where District, Court is final Appellate Court, if it reverses finding of trial Court on
ground not supported by material on record, High Court can interfere with it by issuing
writ of certiorari to correct, wrong committed by the Appellate Authority. In the present
case, learned District Judge has not reversed the finding of the trial Court but has
affirmed the same hence the authority is distinguishable. In rulings referred at Serial Nos.
(c) to (e), viz:

PLD 1994 Pesh. 161, 1988 CLC 1443 (Karachi) and 1989 CLC 252 (Karachi).
Matters were dealt with by the High Court as an Appellate Court and not while exercising
Constitutional jurisdiction. Powers of High Court in Constitutional jurisdiction are not
analogous to those exercised by it in appeals. High Court cannot sit as a Court of appeal
in the exercise of Constitutional jurisdiction which can only be exercised if the lower
Court has exceeded its jurisdiction or, acted without jurisdiction.

17. A perusal of impugned orders would show that they are reasonable and by no stretch
of imagination they can be said to be arbitrary or fanciful.

18. Rent Controller had jurisdiction to decide an ejectment petition under the Rent
Restriction Ordinance and appeal against order of Rent Controller is provided under the
law before the District Court. The petitioner had himself invoked the appellate
jurisdiction of the learned District Judge, hence after failing there it does not lie in his
mouth to say now that order passed by the Appellate Court was without lawful authority.
By no stretch of imagination it can be said that orders passes by the Rent Controller on
the rent petition and the order passed by the learned District Judge, on appeal against
order of Rent Controller, are without jurisdiction, or without lawful authority.

For the reasons stated above, the writ petition is devoid of any merit, it is accordingly
dismissed.

Q.M.H./M.A.K./S-460/L Petition dismissed.


1992 P L C 806

[Labour Appellate Tribunal Sindh]

Present: Ahmed Ali U. Qureshi, Appellate Tribunal

Messrs MODERN TEXTILE MILLS LTD.

versus

MUBARAK ALI and another

Appeal No. HYD-162 of 1987, decided on 20th December, 1990.

Industrial Relations Ordinance (XXIII of 1969)---

----S.25-A---Dismissal from service---Reinstatement---Respondent was dismissed by


appellant for certain acts of misconduct for which he was found guilty in domestic
inquiry---Labour Court reinstated respondent with full back benefits---Proceedings of
inquiry were held ex parte allegedly on ground that respondent remained absent
intentionally---Respondent denied his signature on A/D Receipt of letter which appellant
stated was sent to respondent by Registered Post---Respondent stated that he sent a letter
to Enquiry Officer to supply copies of statements of witnesses of appellant for purpose of
cross examination but Enquiry Officer denied to have received any letter wherein serious
doubts were expressed about impartiality of Enquiry Officer---Facts and circumstances
showing that conduct of Inquiry Officer had not been fair--Action against respondent on
basis of such inquiry report thus was not tenable---Order of reinstatement of respondent
was upheld---Respondent having been charge-sheeted for serious charges, it was kept
open to appellant to hold fresh inquiry and decide question of arrears on result of such
inquiry.

Mehmood Abdul Gham, Representative for Appellants.

M. Bashir Awan for Respondent.

Date of hearing: 17th November, 1990.

DECISION

This is an appeal against order of learned Presiding Officer, Sindh Labour Court No. VI
at Hyderabad, dated 12-4-1987, whereby grievance petition of the respondent No. 1 was
allowed and he was ordered to be reinstated in service with full back benefits.
2. 1 have gone through the `written arguments' filed by Mehmood Abdul Ghani, learned
Representative for the appellants and Mr: M. Bashir Awan, learned Advocate for the
respondent and have gone through the record and proceedings of the case.

3. The brief facts of the case appear to be, that on 13-6-1985 the respondent was charge-
sheeted with certain acts of misconduct allegedly committed by him on 11-6-1985 at
about 3-00 p.m. Domestic enquiry was held, in which the respondent was found guilty
and therefore was dismissed from service vide order dated 18-7-1585. Aggrieved by this
dismissal order, the respondent served grievance notice', dated 20-8-1985 upon the
appellants, failing to get redress he filed his grievance petition.

4. The main contention of the respondent was, that the appellants had removed about 400
workers from the establishment, including the respondent, but they were all reinstated on
the intervention of the Labour Department. 'It is alleged, that because of the aforesaid
reason, the appellants had victimised the respondent by issue of false charge against him.
He also attacked the partiality and fairness of the Enquiry Officer as well as enquiry
proceedings. The respondent claimed to be `president' of the `CBA Union' and contends
that because he served `Charter of Demands' that was also why he has been victimised.
On going through record of enquiry proceedings produced before the Labour Court, it
appears, that proceedings were held ex parte as the respondent is said to have remained
intentionally absent. All the witnesses of the management in the enquiry-appear to have
been examined on 14-7-1985 and `enquiry report' was issued on 15-7-1985. by Mr. Abdul
Rasheed, Enquiry Officer. Mr. Abdul Rasheed has been examined by the appellants. The
respondent is alleged to have been informed about the data of hearing vide letter, dated
10-7-1985 Exh. R/6 which was sent by `Registered Post Acknowledgment Due'. The
Postal Receipt has been filed as Exh. R/7 and Acknowledgment Receipt as Exh. R/8. The
respondent was confronted with this A/D Receipt but he denied his signature upon the
A/D Receipt. The respondent produced two documents Exhs. A/4 and A/5 which also
require consideration. In Exh. R/4 which is addressed to Enquiry Officer the respondent
requested for copies of statements of witnesses so that he may cross-examine them. The
Enquiry Officer, in cross-examination, denied to have received this application. In Exh.
A/5 it is alleged that Enquiry Officer did receive Exh. A/4 and it also expressed doubts
about impartiality of the Enquiry Officer. This letter is acknowledged by the appellants in
their letter, dated 16-7-1985, which is produced as Exh. R/9. It shows that the letter, dated
11-7-1985 sent by registered post was received by them on 15-7-1985 but respondent's
objection was rejected.

5. In the face of denial by the respondent of his signature on `Acknowledgment Receipt'


Exh. R/8 it was incumbent upon the appellants to prove his signature either by examining
the `Postman' who served the letter Exh. R/6 upon the respondent or by getting his
signature compared with the disputed signature by some handwriting expert or at least
producing witnesses in whose presence the respondent had signed Exh. R/8 or who were
conversant with his signature and could identify signature of the respondent. No such
proof has been adduced by the appellants.
6. Mr. Mehmood Abdul Ghani, learned Representative for the appellants, in his `written
arguments' has relied upon certain admission of the respondent in his cross-examination
that he had given application on 14-7-1985 for extension of time but its copy might be
mixed up with any other record. This application has not been produced. In the same
passage, relied upon by Mr. Mehmood Abdul Ghani, of the cross-examination of the
respondent, the respondent categorically stated that he did not appear before the Enquiry
Officer on 14-7-1985 and Exh. R/8 did not bear his signature. It is not clear whether the
application referred to in the cross-examination of the respondent was given by the
applicant personally or had been sent through someone else. No such clarification has
been obtained from the respondent especially in view of the fact that he had denied
knowledge of fact of enquiry or service of letter, Exh. R/6. He has categorically stated
that he did not appear before the Enquiry Officer. The mere fact that he moved some
application on 14-7-1985 would not raise any presumption that he had knowledge of any
date of hearing. It may be pointed out that application A/4 is dated 10-7-1985. The fact
that as the complaint of the respondent Exh. A/5 sent by registered post on 11-4-1985 was
summarily rejected by the appellants and no opportunity was afforded to the respondent
to cross-examine the witnesses of the management would also throw serious doubt about
the fairness of the enquiry and Enquiry Officer. The order of dismissal was admittedly
passed on 18-7-1985 viz. after the receipt of the letter Exh. A/5 and therefore the
management could have re-opened the case and allowed the respondent to cross-examine
the witnesses.

7. The order of dismissal' based on such enquiry or such enquiry report is not tenable and
the order has rightly been set aside by the learned Labour Court.

8. Mr. Mehmood Abdul Ghani, in this context, has relied upon the case of Islamabad
Club v. Punjab Labour Court No. 2 and others PLD 1980 SC 307. In that case also the
order of dismissal was set aside on the ground that no reasonable opportunity was given
to the employee in the domestic enquiry. However, their lordships observed:--

"The authorities of the Islamabad Club are still anxious to pursue the matter, it
would clearly be open to them to rescure the proceedings by furnishing a copy of
the inquiry report to the respondent and giving him a reasonable opportunity to
show cause against the proposed order of dismissal on the grounds found against
the respondent by the Inquiry Officer."

Reliance is also placed on the case of Steel Corporation of Pakistan Ltd. v. Sherzamin
and others 1968 SCMR 355, wherein their Lordships have observed:-

"In these cases, the holding of the domestic enquiry ex parte was apparently
unjustified, and in refusing permission to dismiss, the Industrial Court should
have directed that the enquiry be held afresh after due opportunity to appear and
defend had been given to the respondents. These petitions are dismissed with that
observation: '
In the case of Muhammad Arshad Khan v. J & P Coats Pakistan Ltd., Karachi and 2
others PLD 1977 Karachi 83, a learned Single Judge of the High Court at Karachi had
held "the Labour Court was competent under section 23-A to give direction for holding
fresh inquiry".

9. The respondent is charge-sheeted with serious charges. The order of learned Labour
Court setting aside order of dismissal of respondent is upheld on the ground that the
domestic enquiry did not appear to be fair. Under the circumstances it will be open to the
management to hold fresh enquiry on the same charge-sheet though some independent
Enquiry Officer in C accordance with the principle of natural justice and the provision of
Standing Orders Ordinances. Mr. Mehmood Abdul Ghani has also submitted that if the
fresh enquiry is ordered the payment of back benefits be made dependent upon the result
of such enquiry. He relied upon the case of Mehmood Shah v. Dawood Cotton Mills Ltd.
and another 1982 PLC 365, wherein a Division Bench of Sindh High Court at Karachi
had upheld the decision of this Tribunal making question of back benefits dependent
upon the result of fresh enquiry.

10. In view of the above discussion the appeal is dismissed. The management could,
however, if they so desire, hold fresh enquiry on the same charges as observed above but
should complete it within four months. The question of back benefits would be dependent
upon the result of such enquiry. If no enquiry is held or not completed within the period
specified above, the back benefits be released to the workman after due verification,
unless the appellants obtained further extension of time for completion of the enquiry if
not completed within the specified period due to result of any act of omission or
commission on the part of the respondent.

M.Y.H./1817/Lb.S Appeal dismissed.


1992 MLD 1116

Karachi

Before Mamoon Kazi, J

Mst. BUSHRA BANG SHIRANI and another---Applicants

versus

MUHAMMAD HASSAN and another---Respondents

Civil Revision No.247 of 19.,88, decided on 2nd May, 199 I

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

----O. VIII, Rr. 9, 10 &'O.XVIII, R. 3-& 5.115---Ex parts proceedings against defendants,
leading to ex parts decree---Validity---Trial Court after ordering case to proceed ex parte
against defendants, decreeing the same without recording any evidence---Ex pane
proceedings having been ordered against the defendants, recording of plaintiffs' evidence
was imperative on Court---Case could not have been decided on merits without .
recording of evidence--Although ex parte proceedings would mean proceedings without
contest from defendant but still defendant could not be debarred from taking any part in
such proceedings---Defendant in ex parte proceedings could still cross-examine plaintiffs
witnesses and take part in arguments---Course adopted by Trial Court, without recording
evidence was not proper---Appellate Court's view that provisions of OXVIII, R.3, Civil
Procedure Code, 1908 were attracted was not correct, for there was no material before
Trial Court upon which its judgment could be based---Judgments of Courts below were
set aside and case was remanded to Trial Court for proceeding afresh in accordance with
law.

Khalilur Rehman for Applicants:

Nemo for Respondents.

Date of hearing: 2nd May, 1991.

JUDGMENT

Respondent No.1, Muhammad Hassan, was a tenant of one Dr. Asmat Zakia in House
No.G-1, situated in North Karachi. He filed a suit (Suit No.2124/84) in the Court of Tenth
Civil Judge, Karachi, West, seeking permanent injunction to restrain the applicants from
forcibly dispossessing him from the suit property. The applicants appeared before the.
Court in response to the summons issued thereby on 18-6-1984, however, thereafter, they
failed to file a written statement before the Court and continued to obtain several
adjournments in this regard from the Court. On 29-7-1986 the case was adjourned to
26-8-1986 for filing of a written statement which was the last extension granted by the
Court in this regard. However, still the applicants not only failed to file a written
statement but they also remained absent from the Court on the said date. Consequently, it
was ordered that the case of the applicants would proceed ex parte against the defendants.
Thereafter, admittedly no immediate attempt was made by the applicants to get the ex
parte order set aside. On the other hand the applicants went on making applications
seeking extension of time to file the written statement. However, each time their request
for grant of time was declined by the learned trial -Court. At last on 7-2-1987 the counsel
for the appellants moved an application for setting aside the ex parte order, but the same
was rejected on the ground that it was time-barred and no application for condonation of
the delay had been tiled. Thereafter, the matter proceeded further and the learned trial
Court even allowed an application filed by the respondent No.1 for an interim injunction
and ultimately on 31-3-1987 the suit of the respondent was decreed ex parts against the
applicants. It is pertinent to point out that no evidence had been recorded in the matter by
the learned Court. However, aggrieved by the said order, the applicants riled appeal
before the learned District Judge, Karachi West, but the order of the learned trial Court
was upheld and hence the present revision.

2. It may be pointed out that the order passed by the learned trial Court, dated 26-8-1986,
whereby the ex parte proceedings against the applicants were ordered, fails to indicate
whether the same had been purportedly passed under Order 17, Rule 2, C.P.C. or Order 8,
Rule 10, C.P.C. Order 17, Rule 2 provides as follows:--

"2. Procedure if parties fail to appear on day fixed. Where, on any day to which the
hearing of the suit is adjourned, the parties or any of them fail to appear, the Court
may proceed to dispose of the suit in one of the modes directed in that behalf by
Order IX or make such other order as it thinks fit."

Order 8, Rule 10 provides that:--

"10. Procedure when party fails to present written statement called for by Court.
Where any party from whom a written statement is so required fails to present the
same within the 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."

3. Mr. Khalilur Rahman, learned counsel for the applicants has argued that a date fixed
for filing of a written-statement was not a date of hearing and consequently, neither Order
17; Rule 2 nor Order 9, Rule 6, C.P.C. was attracted, and therefore, the learned trial Court
could not order ex parte proceedings against the applicants. Reliance has been placed
upon Mahmood Ahmad v. Feroze Din 1991 M L D 875 which supports the aforesaid
proposition. In this case the learned Chief Justice of the Azad Jammu and Kashmir High
Court while referring to earlier decisions of the Lahore High Court P L D 1971 Lah. 746
and the Supreme Court of Azad Jammu and Kashmir P L D 1983 SC (AJ &K) 223 has
held that `hearing of suit' would imply that stage of a trial in a civil action when the Court
has to apply its mind to the matter in controversy between the parties and hence a date
fixed for filing of a written statement cannot be construed as a date of hearing in the case.

4. Assuming that Mr. Khalilur Rahman is right, the order, dated 26-8-1986 could still be
validly passed under Order 8, Rule 10, C.P.C. Under the said provision, the learned trial
Court could either immediately pronounce judgment against the applicants without even
recording evidence in the case, on their failure to file a written statement o:, 26-8-1986 or
in the alternative, it could proceed under Order 9, C.P.C. or pass any other order it
deemed fit. As is evident from the order, dated 26-8-1986, the learned trial Court adopted
the alternative course. However, what appears to have escaped notice of Mr. Khalilur
Rahman is the fact that the learned Court after ordering the case to proceed ex parte
against the applicants, decreed the suit against them without recording any evidence in
the case. When ex parte proceedings were ordered against the applicants it was
imperative on the learned trial Court to record evidence of the plaintiff in the case. Until
such evidence was recorded, the case could not be decided on merits. No doubt, ex parte
proceedings would mean proceedings without any contest from the defendant but still the
same does not mean that he should be completely debarred from taking any part in the
proceedings. The defendant can still cross-examine the plaintiff's witnesses and take part
in the arguments. The course adopted by the learned trial Court was, therefore, not
proper. The learned appellate Court has nevertheless upheld the impugned order by
holding that the case had been disposed of under Order 17. Rule 3, C.P.C. The view taken
by the learned appellate Court, however, does not appear to be correct as there was no
material before the learned trial Court upon which its judgment could be based. Order 17,
Rule 3 was therefore, not attracted to the facts of the present case.

5. In the result, I set aside both the judgments of the learned Courts below and remand the
case to the learned trial Court for proceeding afresh in accordance with the law. Since as
pointed out by Mr. Khalilur Rahman, written statement has already been filed by the
applicants, the learned trial Court shall consider their request for condonation of delay if
any made before it and a case is made out for extension of time for filing of the same.

In case the learned trial Court declines to grant the applicant's request, then it can no
doubt proceed ex parte in the matter but after calling upon the respondent No.1 to adduce
evidence in ex parte proof.

The revision application is, therefore, disposed of in the above terms with no order as to
costs.

A.A./B-202/K Case remanded.


1984 P L C 53

[Labour Appellate Tribunal Punjab]

Before Muhammad Abdul Ghafoor Khan Lodhi, Appellate Tribunal

MUHAMMAD BASHIR

versus

GOVERNMENT TRANSPORT SERVICE

Appeal No. FD-81 of 1930EPb., decided on 7th September, 1982.

West Pakistan Industrial and Commercial Employment (Standing Orders)


Ordinance (VI of 1968)-

-- S. O. 15(4)-Service of enquiry notice-Denial of-In enquiry alleged notice server


deposing to have served enquiry notice but not examined in lower Court-Employee
challenging very ex parte proceedings and categorically denying service of enquiry
notice. Notice not put to him in cross-examination-Held, his statement that no enquiry
notice served, went un-controverted and should have been accepted by lower Court.

Nazir Ahmad Naz for Appellant.

JUDGMENT

In this appeal the decision dated 30th January, 1980 passed by the learned Presiding
Officer, Punjab Labour Court No. 5, Faisalabad has been challenged, whereby the
grievance petition of the appellant for his reinstatement in service was dismissed.

2. The allegation against the appellant was that he had issued tickets to the passengers
from the students book. The case of the appellant is that instead of issuing regular RPT
book, he was issued students book, therefore, he was compelled to issue tickets from the
said book There is no allegation that he had charged full fare from the passengers but
entered half fare in the counterfoils. So no charge of dishonesty or misappropriation.

3. The other thing is that there was no justification for making ex parte enquiry as service
of enquiry notice does not stand proved. Rehmat Ali, Clerk, who is alleged to have served
the enquiry notice Exb. D. 1 was not examined before the learned lower Court. He was
no doubt examined in the enquiry and said that he had delivered the notice! to the
appellant but this was not enough when the appellant was challenging the very ex parte
proceedings. The appellant categorically denied the service of enquiry notice but despite
of it, notice Exh. D. 1 was not A put to him in cross-examination and he was not required
about the signatures purported to be appearing on the document. His statement that no
enquiry notice was served, therefore, went uncontroverted and should have been accepted
by the learned lower Court.

4. As upshot of the discussion made above, the appeal is accepted and the appellant
directed to be reinstated in service. However, he is not allowed back benefits in the
circumstances of the case.
K. M. A. Appeal accepted.
1985 C L C 964

[Karachi]

Before Abdul Hayee Kureshi, C.J. and Abdul Razzak A. Thahim, J

MUHAMMAD ILYAS KHAN DARAKHSHAN-Petitioner

Versus

MUHAMMAD and 11 others-Respondents

Constitutional Petition No.D-772 of 1984, heard on 10th October, 1984.

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

---S.9--Suit--Petitioner filed suit for specific performance of alleged agreement of sale


against one M and sought ex parte decree in his favour from civil Court--Respondent on
knowing such fact, challenged ex parte order by taking plea that petitioner had impleaded
one M, a ficticious person as respondent--Civil suit still pending where respondent
already a party--Respondent, held, had locus standi to take such part upon hearing of
suit.--[Locus standi].

(b) Provisional Constitution Order (1 of 1981)-

---Art.9--West Pakistan Land Revenue Act (XVII of 1967), Ss.11, 161 & 164--Appeal
against entries made in record of rights by Mukhtiarkar lies before Deputy Commissioner
(Collector) and not before Assistant Commissioner--Order passed by Assistant
Commissioner in appeal, held, ab initio illegal and without jurisdiction--Order of remand
of case passed by Board of Revenue, maintained.

Mirza Ghiasuddin Baig for Petitioner.

Nemo for Respondents.

Date of hearing: 10th October, 1984.

ORDER

ABDUL RAZAK A.THAHIM, J.--This Constitutional petition has been filed by


Muhammad Ilyas to challenge the orders of respondent No.10, Commissioner, Karachi,
and respondent No.12, Board of Revenue, in connection with mutation of immovable
property bearing Surveys Nos. 870, 871, and 875 with buildings situated in Deh Thano,
Tapo Malir, Taluka Karachi. By this petition he seeks the following reliefs:-
(1) Declare that the orders of the respondents Nos.10 to 12 attached with this petition
and proceedings taken thereunder are without jurisdiction, illegal, void ab initio and of no
legal effect.

(2) Declare that orders of Assistant Commissioner, Karachi (East), in Appeal No.2 of
1982 dated 31-8-1982, is a legal order and the issuance of Form-VII in consequences to it
in the name of the petitioner is valid and binding on the respondents.

(3) Declare that the proceedings initiated by the respondents have been mala fide in
law and facts.

(4) Declare that the respondents 1 to 9 have no locus standi to claim mutation and
their entire approach is based on fraud and misrepresentation.

(5) Give and grant such other relief/reliefs as may be expedient in the interest of
justice and circumstances of this case.

2. Briefly stated the facts are that one Muhammad Ahmed Saley, a South African of
Indian origin, purchased immovable property being Surveys Nos. 870, 871 and 875 with
buildings, situated in Deh Thano, Tapo Malir, Taluka Karachi, in the year 1948, and
entries were made in the record of rights in his name by , Mukhtiarkar Malir. He died on
31-10-1971. His heirs were South African nationals and property was being looked after
by one Ghulam Muhammad Shaikh but Khata in the revenue record remained in the
name of the deceased Muhammad Ahmed Saley.

3. It is stated in the petition that the petitioner purchased the above land from respondent
No.1, Muhammad son of Ahmed Saley for the consideration of Rs.75,000 in pursuance of
agreement of sale executed by respondent No.1 on 3-8-1960. The petitioner paid
Rs.70,000 and remaining amount of Rs.5,000 was to be paid on the registration of the
said sale-deed in favour of the petitioner. The petitioner according to the terms and
conditions of agreement dated 3-8-1960, got the physical possession of the property and
used to enjoy all benefits such as rent etc. In spite of several applications to revenue
authorities the mutation was not made in his favour.

4. In the meanwhile, respondent No.2 made an application to the Mukhtiarkar who


recorded the statements of Ghulam Ahmed and others and mutated the Khata of the above
property in the names of heirs of the deceased.

5. Being aggrieved, the petitioner, filed an appeal to the Assistant Commissioner, Karachi
(East). who set aside the order of Mukhtiarkar on the basis of alleged agreement of sale
and the property was mutated in the name of petitioner, Muhammad Ilyas. The
respondents filed an appeal to the Deputy Commissioner but the same was dismissed due
to non-prosecution on 15-6-1983, hence they filed appeal to the Commissioner, Karachi
who, after hearing the parties, set aside the order of the Assistant Commissioner on the
ground that action on the agreement of sale duly attested by the Oath Commissioner
cannot be taken by the Revenue Officer. He observed that, for the purpose of mutation, it
is only registered sale-deed which could be relied upon. This order of Commissioner was
challenged before the Member, Board of Revenue, who remanded the case to the
Mukhtiarkar, and directed him to take fresh decision according to law after observing all
legal formalities.

6. We have heard Mr. Mirza Ghiasddin Baig learned Advocate for the petitioner. His
contention is that respondents have no locus standi as they are not the heirs of the
deceased and the orders passed by the Commissioner and Member, Board of Revenue,
are without lawful authority.

7. It appears from the record that the petitioner had also filed a civil suit for specific
performance of the alleged agreement of sale against one Muhammad son of Sahmed
Saleji and sought ex parte decree in his favour from the civil Court. On knowing this fact
respondent No.2, Abdul Haque, and others challenged that ex parte order and have taken
a plea that petitioner had impleaded one Muhammad son of Ahmed Saleji, a ficticious
person as respondent in civil suit and got ex parte decree by fraud. This suit is still
pending before the civil Court. This fact has not been denied by Mr. Mirza Ghiasuddin
Baig.

8. The contention of the petitioner that the respondents have no locus standi cannot be
sustained on the ground that civil suit is pending where respondents are already party. He
can take this point upon hearing of the civil suit.

9. The mutation was made on 5-4-1982 in favour of all the respondents by Mukhtiarkar
anQ against that order petitioner filed appeal before the Assistant Commissioner, Karachi
(East), and claimed that survey numbers with buildings were purchased by him from
Muhammad son of Ahmed Saleji through sale agreement. The learned Commissioner has
rightly held that in such cases where heirs of the deceased were not traceable and the sale
document was not duly registered, the Revenue Officer should have declined to mutate
the Khata. He has, by this order, cancelled the entries made in the record of rights in
favour of petitioner as well as of respondents.

10. Finally, the case has been remanded by the Member, Board of Revenue, and matter is
to be re-heard when all the disputed points involved in connection with the property are
to be resolved by producing evidence before the Mukhtiarkar who can pass an order
about the mutation of the disputed property after necessary enquiry.

11. As regards the next contention of the learned counsel that orders of the respondent
Nos.10 and 12 and proceedings taken thereunder are without jurisdiction and lawful
authority, we may observe that Mukhtiarkar made necessary entries in the record of rights
under Land Revenue Act as he is entrusted with the local revenue administration of a
taluka and exercised the powers of an Assistant Collector as contemplated under section
11 of Land Revenue Code which states as follows:-

Section 11. "The Chief Officer entrusted with the local revenue administration of
a Tehsil shall be called the Tehsildar (which also includes a Mukhtiarkar), who
shall exercise such powers and discharge such duties of an Assistant Collector as
may be expressly conferred or imposed on him by the Collector under the general
or special orders of the Board of Revenue."

12. The appeals against the orders of Assistant Collectors of either grade, shall lie to the
Deputy Commissioner who by virtue of section 8, Land Revenue Act is a Collector; as
such we are of the view that appeal against the order of Mukhtiarkar does not lie before
Assistant Commissioner, therefore, the order of the Assistant Commissioner ab initio is
illegal and without jurisdiction. The relevant section in Land Revenue Code for the
purposes of appeal is section 161, which reads as under:-

Section 161. "(1) Save as otherwise provided by this Act, an appeal shall lie from an
original or appellate order of a Revenue Officer as follows, namely:-

(a) to the Collector, when the order is made by an Assistant Collector, of either grade;

(b) to the Commissioner, when the order is made by a Collector;

(c) to the Board of Revenue only on a point of law, when the order is made by a
Commissioner:

Provided that:-

(i) When an original order is modified or reversed on first appeal,


a further appeal shall not lie.;

(ii) when any such order is modified or reversed on appeal by the Collector, the order
made by the Commissioner on further appeal, if any, to him shall be final.

Explanation.--(1) An order passed in review, modifying or reveng a previous order, shall


be deemed to be an original order for the purposes of this section.

(2) An order shall not be confirmed, modified or reversed in appeal unless reasonable
notice has been given to the parties affected thereby to appeal and be heard in support of
or against the order appealed from."

The revision could be filed under section 164 of the Act. In these circumstances the
Commissioner (respondent No.10) and Member, Board of Revenue (respondent No.12),
have jurisdiction to pass an order in Revenue matters.

For the reasons stated above, this Constitution Petition is not only misconcieved but pre-
mature, and we dismiss the same in limine.

M.A.K. Petition dismissed.


1987 C L C 2143

[Quetta]

Before Amir-ul-Mulk Mengal, J

Maulana ABDUL WAHID—Petitioner

Versus

Haji MUHAMMAD UMER and another- -Respondents

Civil Revision No.17 of 1986, decided on 8th April, 1987.

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

--- S. 115--Limitation Act (IX of 1908), S. 5--High Court in revisional jurisdiction would
not interfere with discretion exercised by forum below though the High Court was not
debarred from taking into consideration whether such discretion was exercised
judiciously or otherwise--Question of limitation can be taken into account by High Court
suo motu even if not taken by parties.
Muhammad Buta and another v. Habib Ahmed and others PLD 1985 S C 153 ref.
(b) Limitation Act (IX of 1908)--
--- Art. 164--Ex parte decree, affecting right of a person should be vigilantly challenged
within time by such person even if it be void-Question of limitation cannot be overlooked
for reason that impugned order was a nullity.
Marduman Babr Kahol v. Malik Khawaja Muhammad Civil Revision No.16 of 1986
unreported.
Chairman, District Screening Committee, Lahore v. Sharif Ahmed Hashmi P L D 1976 S
C 258; Syed Sajid Ali v. Syed Wajid Ali P L D 1975 B.J, 29; Messrs Conforce Ltd. v.
Syed Ali Shah etc. P L D 1977 S C 599 and Muhammad Ayub Khuhro v. Pakistan
through the Ministry of Interior, Government of Pakistan and 2 others P L D 1960 S C
237 ref.
(c) Limitation Act (IX of 1908)—
--S. 14 & Art. 164--Civil Procedure Code (V of 1908), S. 96 & O.XLVII, R.1--Ex parte
decree--Person having right to file appeal but having no locus standi to file review
petitions, filing same--Time spent in pursuit of such review petition cannot be excluded
from period prescribed for filing appeal under S. 96, C.P.C.
Qaim Hussain and 6 others v. Anjuman Islamia Gujranwala and 7 others P L D 1974 Lah.
346; Khan Muhammad and 15 others v. Anjuman Islamia etc.1987 C L C 1911 and Mirza
Muhammad Saeed v. Shahabuddin and 8 others P L D 1983 S C 385 ref.
Basharatullah for Petitioner.
Iftikhar Muhammad for Respondent No.1
Nazeer Ahmed for Respondent No.2.
Dates of hearing: 14th March and Ist April, 1987.
JUDGMENT
This Civil Revision is directed against the judgment dated 24-3-1986 passed by District
Judge, Sibi in Civil Appeal No.26 of 1984 whereby the decree dated 31-1-1983 passed by
the Civil Judge, Sibi was set aside and the case was remanded for re-trial.
Briefly stated the facts of the case are that the petitioner purchased a piece of land
situated at Quetta Jacobabad Road from respondent No.2 on 8-4-1966 and a document
Exh.P.1 was executed between the parties. The petitioner built a petrol pump and
constructed his house on the major portion of the said plot but an area of 200 feet x 25
feet was left over. However, the petitioner came to know that the respondent No.2 is
going to construct certain shops on the said plot and he filed a suit on 11-12-1979 for
declaration and permanent injunction against respondent No.2. He also moved an
application for temporary injunction on 3-2-1980. The Civil Judge Sibi ordered status
quo. However, the respondent No.2 violated the orders of the Court and was proceeded
against for the same. On 24-11-1982 the suit was dismissed in default and a restoration
application was filed and the learned Civil Judge Sibi after condonation of delay restored
the suit on 6-1-1983 and ultimately an ex parte decree was passed on 31-1-1983. On
14-12-1983 an application under Order IX Rule 13, C.P.C. was filed by respondent No.2
for setting aside the ex parte decree. It was also accompanied by an application under
section 5 of Limitation Act. It appears that during the pendency of the said application
Haji Muhammad Umar i.e. respondent No.1 and one Mst. Zubaida filed a review petition
on 15-12-1983 under Order XLVII, Rule 1, C.P.C. The Learned Civil Judge Sibi on
19-5-1984 dismissed this review petition holding firstly that the applicants had no locus
standi to file the said application and secondly that the same was time-barred. Thereafter
on 26-6-1984 respondent No.1 Muhammad Umar filed an appeal before the District
Judge, Sibi. The Learned District Judge Sibi accepted the appeal and remanded the case
after setting aside the ex parte decree dated 31-1-1983.
Being aggrieved of the-said judgment and decree this revision petition is filed.
I have heard the counsel of the parties at great length. Mr. Basharatullah, the learned
counsel vehemently urged as under:-
(i) That the appeal was filed before the District Judge against the ex parte decree after
507 days. It was, therefore, desperately barred by time and the learned District Judge has
acted in an illegal manner by condoning such a long delay particularly when the appellant
was in the knowledge of the decree on 12-12-1983.
(ii) It was next contended by Mr. Basharatullah that the decree stands executed on
11-12-1983, therefore, no appeal was competent against the same.
(iii) That the learned District Judge condoned the delay on the basis and reasoning
which were not legal and valid. The scope of section 14 of the limitation Act has been
misconstrued.
On the other hand Mr. Iftikhar Muhammad Chaudhry, the learned counsel for the
respondent No.1 urged with considerable vehemence as under:-
(1). That the decree was a void decree,. therefore, no limitation would run against the
same. Since the decree was a nullity, therefore, the learned District Judge rightly
condoned the delay.
(2). It was also contended by the learned counsel that the decree was in respect of a quite
different and distinct piece of land which was in exclusive possession of respondent No.1,
therefore, the suit itself was barred under section 42of Specific Relief Act.'
(3) That the present petitioner has already filed a suit for possession which is sub judice
which clearly indicates that he was out of possession.
(4) That the respondent No.1 although a necessary party was not made a party by the
Civil Judge. He, however, diligently persued his case by filing an application under Order
XLVII, Rule 1, C.P.C. The time so spent was condonable under law and the learned
District Judge was legally correct in condoning the same. Furthermore, the discretion
exercised by the learned District Judge was not exceptionable.
(5) That an application was moved under Order VI, Rule 17, C.P.C: that since Saeed
Ahmed has purchased the land and got the possession and also got the same mutated in
his name, he, therefore, being necessary party should have been impleaded. This
application was, however, not disposed of hence the entire proceedings are ab initio
illegal.
Mr. Nazeer Ahmad, the learned counsel for the respondent No.2 submitted as follows:-
(1) That the scope of section 115, C.P.C. is very limited. Since the District Judge had the
jurisdiction to condone the delay hence no interference is called for by this Court.
(2) It was further submitted that after the ex parte proceedings when the suit was
dismissed, it was incumbent upon the Civil Judge to have issued notice for restoration of
the suit to the respondents which was not done.
Besides this he adopted the arguments of the learned counsel for the respondent No.1.
It would be profitable to further add to some more facts of the case which may help in
adjudication of. the matter.
It was the case of Muhammad Umar respondent No.1, that his son Saeed Ahmed
purchased a piece of land from respondent No.2 who thereafter gifted the same to him.
Since Mitha Khan neither filed any appeal nor has come in revision before this Court
hence the decree against him has become final. Furthermore, the record reveals that the
decree was executed to the extent of mutation in the revenue record. As the suit was for
declaration and permanent injunction, hence, no possession was to be given as a
consequence of the decree and it has already been mentioned that a separate suit for
possession was filed by the appellant which is sub judice.
It is also an admitted position that on 14-2-1980 the petitioner/ plaintiff filed an
application under Order VI, Rule 17, C.P.C. that since respondent No.2 had sold the
property during the proceedings to one Saeed Ahmed son of Muhammad Umar, therefore,
it was prayed that he may be impleaded as a party. This application was pending when
Saeed Ahmed gifted the piece of land he had purchased measuring 7 poles in Khasra
No.185/7/3 to his father Muhammad Umar respondent No.1. All these contentions were
raised in the application under Order XLVII, Rule J, C.P.C. praying for review of the ex
parte decree which was dismissed by the Civil Judge.
Now adverting to the legal position, point raised by Mr. Nazeer Ahmed, Advocate for
respondent No.2, may be taken first:
According to the counsel this Court while sitting in revisional jurisdiction under section
115, C.P.C. may not interfere in the judgment of the District Judge whereby he has
exercised his discretion on certain given facts and condoned the delay. According to the
learned counsel discretion if exercised judiciously by a competent Court, is not amenable
to. revisional jurisdiction of this Court.
There can hardly be any cavil to the proposition that if a forum is competent to exercise
discretion, the same may be exercised judiciously and not arbitrarily. But the High Court
is not debarred to take into consideration whether such discretion was exercised
judiciously or otherwise. The question of limitation is a question which can be taken into
account by the High Court suo motu,' even if not taken by the parties. This view finds
support from the judgment of Honourable Supreme Court of Pakistan in the following
authority.
The case of Muhammad Buta and another v. Habib Ahmed and others as reported in P L
D 1985 Supreme Court, page 153, and relevant observations being on page 157 are as
under:-
"The waiver by the respondents before the appellate Court and the omission on the part of
that Court to decide the question, will, therefore, not deprive the High Court of its power
under section 115, C.P.C. to suo motu go into the question of the material already on
record was sufficient to establish that the suit was beyond time. This is supported by the
dictum of this Court in Manager, Jammu and Kashmir-State Property v. Khuda Yar P L D
1975 S C 678.
The scope of the revisional powers of the High Court though circumscribed by conditions
of excess of jurisdiction failure to exercise jurisdiction, illegal exercise of jurisdiction, is
nevertheless very vast and corresponds to a remedy or certiorari and in fact goes beyond
that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be
invoked by the Court suo motu and secondly, the Court may make such order in the case
it thinks fit .”
I am, therefore, inclined to consider whether the learned District Judge has exercised his
discretion by condoning delay judiciously or not.
The moot question in these complicated set of facts is whether the appeal filed by the
respondent No.1 before the District Judge was competent and secondly, whether or not
the District Judge exercised his discretion legally by condoning delay?
The counsel for the appellant strenuously urged that Article 152 of the Limitation Act
prescribes a period of 30 days for filing first appeal under section 96, C.P.C. This appeal
was filed after 507 days of passing of the ex parte decree. He made two-fold-submissions
in this respect, firstly, that the respondent No.1 had no locus standi to file appeal because
he was not a party to the suit. Secondly, that even otherwise appeal filed by him was
desperately barred by limitation and no reasons were available with the learned District
Judge to have condoned such delay.
From the perusal of the impugned judgment and decree it transpires that the learned
appellate Court dealt with the question of limitation and condonation thereof in para 9 of
the judgment. It is mentioned therein that impugned decree is dated 31-3-1983 whereas
appeal was filed on 27-6-1984. As per Article 164 of the Limitation Act, period
prescribed for setting aside an ex parte decree is 30 days from the date of passing of the
decree or where the summons were not duly served, then from the date of knowledge of
the decree. It was concluded by the District Judge that since neither Saeed Ahmed nor his
father Muhammad Umar (respondent No.1) were party to the proceeding the limitation
period, therefore, starts from the date of knowledge of the decree. To this extent the
observations made by the District Judge are correct and sustainable under law. But this is
an admitted feature that respondent No.1 who filed appeal before the District Judge
(whereas Mitha Khan and Mst. Zubaida did not file any appeal), came to know about the
decree on 12-12-1983 and soon after that on 15-12-1983 he alongwith one Mst. Zubaida
daughter of Mitha Khan, instead of filing an appeal, filed review application under Order
XLVII, rule 1, C.P.C. The date of knowledge of decree admittedly is 12-12-1983 hence
appeal apparently was barred by time.
On the other hand, Mr. Iftikhar Muhammad, the learned counsel for the respondent No.1
submitted that since the decree was a void decree, therefore, appeal was competent,
because according to the learned counsel, no time would run against a void decree. When
asked as to how the decree was void, Mr. Iftikhar Muhammad addressed lengthy
arguments by inviting my attention to certain facts which according to him, if taken into
consideration, would prove that the decree was void. Firstly, it was pointed out that since
Muhammad Umar was not a party in this suit, therefore, no decree could be passed
against him. In fact no decree has been passed against Muhammad Umar but an ex parte
decree is against respondent No.2.
It was next contended by Mr. Iftikhar Muhammad that plot which was sold to Saeed
Ahmed by respondent No.2 was different. On this score too, it was contended that decree
-was a nullity. Mr. Iftikhar Muhammad relied on an unreported judgment of this Court
decided in Civil Revision Nb.16/86 in the case of Marduman Babar Kahol v. Malik
Khawaja Muhammad. In this case since no summons were served upon the defendants
and an ex parte order was passed without any evidence whatsoever, the limitation period
was condoned and decree set aside. It was further observed that decree was a nullity. But
facts of the aforesaid case are quite distinguishable inasmuch as summons were not
served upon the defendants and no evidence was recorded by the learned Qazi on the
basis of which ex parte decree was passed. But in the instant case the trial Judge has
taken into consideration Exh.P/l, a document on the basis of which property in dispute
was purchased by the petitioner. In ex parte judgment the Civil Judge categorically stated
that he had taken into consideration the evidence on record. Hence in my opinion the
observations in the said case are not of any help to the respondent.
Controverting the above contention, Mr. Basharat Ullah. the learned counsel for the
petitioner invited my attention to the case of "Chairman, District Screening Committee
Lahore v. Sharif Ahmed Hashmi”: as reported in P L D 1976 Supreme Court page 258. In
the aforesaid case inter alia it was observed that "a void order is an order which is a
nullity or "absolutely null", that is to say an order which cannot be ratified or confirmed
or Which totally of no consequence whatsoever".
Mr. Iftikhar Muhammad repeated again that property in dispute and property purchased-
by Muhammad Umar are two different properties. He tried to substantiate the same by
filing "Khatoonies" and other documents of revenue record in this Court. He pointed out
that the respondent No.1 purchased a 15iece of land measuring 7 poles is Khasra
No.1,85/7/3. Whereas the plot purchased by the petitioner bears no number, or different
numbers.
It may be pointed out here that usually when transfer is made from some portion of land,
the name of Khasra remains the same but only "Tatimall is changed, but this cannot be
taken as a conclusive proof that the properties are different. This need however, recording
of further evidence which of course can properly be done before Civil Judge and not
before this Court in revision-.
Furthermore, it may be observed that this fact can be taken as a plea during the execution
proceedings or through a separate civil suit as directed by Civil Judge in this case.
Reverting back to the first contention that since decree being void, no limitation would
run against the same it is observed that if the proceedings were within the knowledge of a
person or he knew well about a decree even if it was a void decree adversely affecting his
rights then such person should be vigilant to challenge the same within the prescribed
period of limitation.
In this respect reliance may be placed on the following cases:-
1. "Syed Sajid Ali v. Syed Wajid Ali as reported in P L D 19751 Baghdad-ul-Jadid, page
29. The ratio in this case was that question of limitation cannot be overlooked for the
reasons that impugned order was a nullity. Time starts running from the date of
knowledge of decree, even in case of a void order.
2. "Messrs Conforce Ltd. v. Syed Ali Shah etc." reported in PLD 1977 Supreme Court,
page 599, wherein it was held by the Honourable Supreme Court:-
"that a void order or an order without jurisdiction is only a type of illegal order passed by
a Court and the fact that it has been passed and may, therefore, create rights cannot be
altered by describing it as void order without jurisdiction."
Similarly it was observed in the case of "Muhammad Ayub Khuhro v. Pakistan through
the Ministry of Interior, Government of Pakistan and two others, as reported in P L D
1960 Supreme Court of Pakistan page 237:
"that a judgment is in Court if it is wrong in law or facts but it is void if it pronounced by
an incompetent tribunal."
In the instant case the Civil Judge was competent to have passed ex parte decree,
therefore, the same cannot be termed as void.
I, now advert to the last submission made by the learned counsel for the respondent that
since respondent No.1 has been pursuing with due diligence the review application,
therefore, the time spent in pursuit of such review application should be excluded,
because the same was prosecuted in good faith. This is in fact the import of section 14 of
the Limitation Act. It is to be seen whether the respondent No.1 had any valid legal
ground and locus standi to have filed review petition? If not then whether the time spent
on pursuit of such review petition can be condoned. As far as locus standi is concerned
the following authorities are complete answer to the aforesaid question:-
1. "Qaim Hussain and 6 others v. Anjuman Islamia, Gujranwala and 7 others as reported
in P L D 1974 Lahore page 346, in which it was observed that:-
"Order passed in writ jurisdiction in which a person was not a party to such proceedings
was not competent to seek review of the same.”
Similarly in case of "Khan Muhammad and 15 others v. Anjuman Islamia etc. as reported
in 1987 C L C 1911, it was observed:-
"that remedy of review can be availed of only by a person who initially was a party to the
proceedings and he cannot be permitted to avail of the grounds on which a review
petition is competent."
The next pertinent question pertains to the fact whether there was valid legal grounds for
review, with the respondent No.1. In my opinion, since respondent No.1 was not a party
to the proceedings before the Civil Judge and that he filed review petition which was
time-barred as per Article 173 of the Limitation Act which prescribes 90 days time for
filing of petition for review, hence, the petition was not competent. The Civil Judge
rightly dismissed the petition as being barred by time as well as on the ground that
respondent No.1 had no locus standi to have filed such review petition. The time,
therefore, so spent could not have been excluded from the limitation period. Reliance if
necessary, may be placed on the following authority: -
"Abdul Aziz v. Additional Settlement Commissioner the case as reported in S C M R
1984 page 1562, in which Honourable Supreme Court observed inter alia that:-
"the learned counsel has not been able to satisfy us that the grounds taken were such
which could have been urged in review. In this view of the matter, pursuit of review was
not bona fide but a clear negligent act and the time spent therein cannot be allowed."
Similarly, observation made by the Honourable Supreme Court in the case of “Mirza
Muhammad Saeed v. Shahabuddin and 8 others" as reported in P L D 1983 Supreme
Court, page 385 are relevant, which reads as under:-
"This, indeed, is a dilemma to which there is no entirely satisfactory answer. The law as it
now stands is that the Courts can show indulgence and condone the delay where time has
been lost by prosecuting a remedy before a wrong forum on account of a bona fide
mistake or error committed by a counsel, which a reasonable and prudent man despite
exercising due diligence and caution might have committed. Where however, the mistake
in approaching the wrong forum is committed by him due to gross negligence and
carelessness and it does not appear that he has shown due diligence and caution before
moving the said wrong forum; the only remedy for the unfortunate client of such a
counsel appears to be to sue him for damages for the loss suffered on account of his gross
negligence. If such a remedy is exercised more frequently and counsel made to pay for
their carelessness and negligence which results in such grave losses to their clients, some
amelioration in the situation is possible."
In view of the aforesaid observations there remains no doubt that respondent No.1 was
ill-advised to have gone before the Civil Judge for review. Such act on his part, therefore,
amounts to gross negligence which could not have been condoned. Besides this, even
otherwise the appeal was barred because order on review application was passed on
19-5-1984 whereas appeal before District Judge was filed on 27-6-1984 i.e. after 39 days
for which the only explanation is that the copy of order on review petition was granted on
6-6-1984. The copy of the order on review petition and time spent on obtaining the same
was not material for filing of appeal before District Judge because it was ex parte decree
which was challenged, and not the order on review application.
The upshot of the aforesaid discussions is that the appeal filed by respondent No.1 before
the District Judge was not competent as being barred by time. In this view of the matter,
remaining contentions need no adjudication. I, therefore, allow this petition, set aside
judgment and decree dated 24-3-1986 passed by the District Judge Sibi in Civil Appeal
No.26/84. and uphold the ex parte decree dated 31-1-1983 passed by Civil Judge Sibi.
However, respondent No.1 is at liberty to file a separate civil suit for his entitlement if he
so wishes. In the circumstances of the case, the parties are to bear their own costs.
K.B. A. /280/Q Petition accepted.
1996 C L C 206
[Quetta]
Before Amir-ul-Mulk Mengal, Actg. CJ
SHER MUHAMMAD and 8 others---Petitioners
versus
ISMATULLAH and 3 others---Respondents
Civil Revision No. 308 of 1994, decided on 16th August, 1995.
(a) Tort-
---- Malicious prosecution---Essentials---Application by defendant's seeking exclusion of
plaintiffs family from a spec tribe---Inquiry on basis of such application was initiated and
was dismissed---Appeal and revision against dismissal of such application were also of
no avail---Effect---Defendants by filing application against plaintiffs thus, constituted
malicious proceedings without any probable cause, therefore, factum of malicious
prosecution was constituted---Case for malicious prosecution was made out where
defendant took active part in initiation, continuation or prosecution of civil proceedings
against plaintiff---Person initiating such proceedings against another was subject to
liability to other for wrongful civil proceedings if: (a) he had acted without probable
cause, and primarily for any purpose other than that of securing proper adjudication of
claim on which proceedings were based, and (b) except when they were ex parte, they
must have terminated in favour of person against whom they were brought---Where
proceedings were started by defendants which culminated in dismissal of such
proceedings by hierarchy of Revenue Authorities, such proceedings would be deemed to
have terminated in favour of plaintiffs, thus, giving them locus standi to institute suit for
damages against malicious prosecution.
(b) Limitation Act (IX of 1908)---
----S. 14---Exclusion of time spent during proceedings in Court having no
jurisdiction---Essentials---Exclusion of time consumed in proceedings before wrong
forum would be subject to existence of certain conditions that the proceedings were
founded upon the same cause of action and prosecuted in good faith in Court, which for
want of jurisdiction or other cause of like nature did not entertain those
proceedings---Court should not refuse benefit of S.14, Limitation Act, 1908, merely
because plaintiff did not show any ground for exemption from limitation in plaint.
Black's Law Dictionary ref.
(c) Limitation Act (IX of 1908)---
----S. 14---Exclusion of time consumed in proceedings before wrong forum--Plaintiff
would be entitled to benefit under S. 14, Limitation Act, 1908, if facts were known to
both parties about period which was liable to be excluded even if proper details were not
supplied in plaint by him---Court, however, should take into consideration necessary
conditions while granting or refusing condonation; such conditions were that plaintiff
must have brought suit in Court having no jurisdiction to entertain the same; and suit so
brought in Court was in consequence of bona fide mistake of law or defect of procedure.
AIR 1957 Mad Pra 95 and AIR 1957 Pat. 139 ref.
(d) Tort---
---- Malicious prosecution---Limitation---Time spent in prosecuting a lis in wrong forum
---Condonation of delay---Majlis-e-Shoora did not dilate upon essentials, which
necessitate condonation of delay and dealt with . such important issue in cursory manner
and it failed to conclude whether proceedings before Civil Court had been filed bona fide
and in good faith or otherwise---Order passed to such extent was, thus, set aside and case
remanded to Majlis-e-Shoora with direction to allow parties to lead evidence on that
aspect again especially on issue of limitation and evidence taken thereon might be taken
alongwith other issues on merits and decided by it afresh in accordance with
law---Limitation Act (1X of 1908), S. 14.
Basharatullah for Petitioners.
Azizullah Memon for Respondents.
Date of hearing: 1st June, 1995.
JUDGMENT
Facts for filing of this revision petition are that on 19-7-1987 an application was
submitted by petitioners/defendants before Assistant Commissioner, Muslim Bagh
seeking a declaration that the family of the plaintiffs/respondents which is called Kahole
of Bara Khan be excluded from the family of late Azmat Khan. It appears that the
application was sent to Naib-Tehsildar for enquiry and finally this application was
rejected by the Collector vide order dated -28-6-1988. An appeal was filed before the
Commissioner which was also dismissed on 29-8-1990 and finally the revision petition
was also dismissed by Member, Board of Revenue vide order dated 17-5-1991.
2. The respondents and one Adam Khan then filed a suit on 29-3-1992 (Civil Suit No.
125 of 1992) in the Court of Civil Judge-I, Quetta to claim a decree for Rs.4,90,000 as
damages. The same had been calculated as under:--
Defending the proceedings wherein expenses of Rs.1,00,000 was incurred and a loss of
Rs.1,00,000 was incurred due to the fact that the plaintiffs were deprived of doing their
normal work. Additionally travelling expenses of Rs.90,000 was also demanded and for
false and malicious prosecution initiated by defendants for which they suffered mental
torture, thus being liable to payment of Rs.2,00,000. This suit was contested by the
defendants who filed written statement on 21-7-1992. Besides other points raised,
question of jurisdiction was challenged.
Upon the pleadings of the parties six issues were framed and on the request of the
defendants through as application filed on 22-10-1992; learned Civil Judge while
accepting the request ordered to decide Issue No. 3 before Proceeding any further.
Learned Court held that neither any cause of action nor any Part thereof had accrued at
Quetta, therefore, he ordered return of the plaint to the plaintiffs with direction to present
it before Court of competent jurisdiction at Loralai.
Feeling aggrieved of this order an appeal was preferred but learned Additional District
Judge-I, Quetta vide order dated 28-7-1993 dismissed the appeal. It is alleged that the
plaintiffs then filed a fresh suit on 18-11-1993 before Majlis-e-Shoora at Loralai. Learned
Majlis-e-Shoora after obtaining written statement framed 3 issues on merits which are
reproduced as under:--
The Majlis-e-Shoora, however, on 3 preliminary issues passed an order dated 23-10-1994
which has been impugned in this revision petition.
Heard Mr. Basharatullah, Advocate for petitioners and Mr. Azizullah Memon, Advocate
for respondents.
Mr. Basharatullah firstly contended that the suit was clearly barred by time. It- was
contended that initially no issue of limitation was framed, therefore, the defendants made
an application on 5-3-7994 for framing of additional issue of limitation, resultantly issue
of limitation was framed but decided against the petitioners which according to the
counsel was not correct. According to him for compensation for libel the period of
limitation starts from the date libel is published under Article 24 of the First Schedule of
the Limitation Act. Similarly under Article 25 the period is again one year for
compensation of slander when the words are spoken, or, it the words are not actionable in
themselves, when the special damage complained of results. Likewise under Article 23 of
the Limitation Act for compensation for a malicious prosecution, period prescribed is one
year when the plaintiff is acquitted, or the prosecution is otherwise terminated. It was
further contended that the cause of action accrues when the libel or slander is published
and the limitation starts from the date of publication. The question arises what is
publication. According to Mr. Basharatullah, communication to a third person is known
as publication.
In my considered- view the petitioners by filing an application against the respondents
instituted malicious proceedings without any probable cause, therefore, the case falls
under malicious prosecution. Malicious prosecution has been described by Black's Law
Dictionary as "one who takes an active part in the initiation, continuation of procurement
of civil proceedings against another is subject to liability to the other for wrongful civil
proceedings if--(a) he acts without probable cause, and primarily for a purpose other than
that of securing the proper adjudication of the claim in which the proceedings are based,
and(b) except when they are ex parte, the proceedings have terminated in favour of the
person against whom they are brought".
In the instant case the proceedings were started by the petitioners which culminated in
dismissal of application by the Collector, then appeal was filed by the petitioners which
was also dismissed by the commissioner and ultimately revision petition has been
dismissed by M.B.R. on 17-12-1991. Thus the proceedings terminated in favour of the
respondents on 17-12-1991.
After termination of the proceedings in favour of respondents, the respondents filed a suit
for damages in the Court of Civil Judge on 29-3-1992 but the petitioners raised an
objection regarding territorial jurisdiction. After hearing the parties, the learned Civil
Court vide order dared 30-12-1992 ordered return of the plaint to be filed in competent
Court of jurisdiction, appeal was filed against the said order which was also dismissed on
28-7-1993 and the present suit was filed on 18-11-1993 before Majlis-e-Shoora Loralai. It
was urged by Mr. Basharatullah that the suit is clearly barred by time because the cause
of action accrued to the plaintiff in the year 1987. Even otherwise if the date on which the
Civil Court returned the plaint is counted, the suit is barred by time because plaint before
Civil Judge has been filed on 29-3-1992 whereas present suit was filed on 18-11-1993,
which is beyond the limitation prescribed under Article 23 of the Limitation Act.
Another limb of the arguments advanced by the learned counsel was that the plaintiff did
not file any application for condonation of delay under section 14 of Limitation Act. It
was, therefore, argued that the Trial Court erred in law by declaring the plaint to be
within time.
On the contrary, learned counsel for the respondent/plaintiff Mr. Azizullah Memon
convassed that the suit was within time because the limitation starts from the period when
the malicious prosecution was terminated by the highest forum, i.e. Member, Board of
Revenue, vide order dated 17-12-1991, while the plaint was filed before the Civil Judge
on 29-3-1992, within period of one year.
The time consumed before the Civil Judge who was pleased to dismiss the plaint for want
of jurisdiction, as well as the period spent before the District Judge in appeal shall have to
be excluded from the limitation as provided under Article 14 of the Limitation Act. As to
the second limb of arguments as regards filing of an application, it was contended that
this fact was in the knowledge of the parties, so much so that an issue was framed by the
Trial Court and parties addressed the Court on the basis of facts, therefore, it was
contended that the conclusion drawn by Majlis-e-Shoora are unexceptionable.
I gave my anxious consideration to the arguments so advanced. First of all it is to be seen
that under Article 14 of the Limitation Act, the time spent during the proceedings in Court
having no jurisdiction is excluded. But there are certain conditions, the existence of
which is necessary to exclude the time consumed in proceedings before a wrong forum
and those are that the proceedings is founded upon the same action of the section and
prosecuted in good faith in a Court which for want of jurisdiction, or other cause of alike
nature, did not entertain it.
Attending to the second limb of arguments advanced by the petitioners' counsel that in
absence of filing of an application under section 14 of the Limitation Act claiming
exclusion of the time spent in wrong forums, hence benefit of section 14 cannot be
extended; suffice is to observe that the Court should not refuse benefit of this section
merely because the plaintiff does not show any ground for exemption from limitation in
the plaint. In this regard my attention was invited to PLD 1968 Peshawar 181. In the said
judgment it has been held that delay cannot be condoned under Article 14 of the
Limitation Act without filing an application for condonation. I have perused the said
judgment and this observation has been made while hearing the Letters Patent Appeal and
not in the Court of First Instance. Furthermore, such condonation was sought during the
final arguments and no ground had been taken even in appeal before the Court; whereas
in. the instant case this, objection has been raised and an issue of limitation framed by the
Trial Court. From perusal of the order which is impugned before me, it is clear that the
learned Majlis-e-Shoora has taken into consideration facts in this regard. Thus, in my
humble opinion the ratio decidendi of the abovementioned case (supra) is in apt to-the
facts of the present case.
It was in the knowledge of both the parties that suit for damages initially was filed before
the Civil Judge, Quetta who dismissed it for want of jurisdiction. So also appeal was
dismissed by the Additional District Judge and thereafter plaint was filed before learned
Majlis-e-Shoora. In my humble view the appropriate authority which has dealt with the
point in question is AIR 1957 Madhya Pradesh 95. In the said case an observation was
made that even if the plaintiff does not supply proper details in the plaint, he is entitled to
the benefit under section 14 of the Limitation Act if the facts were known to both the
parties about period which was liable to be excluded. It was, therefore, held that the
defendant could not be permitted to complain of any prejudice for want of proper details
in the pleading.
In AIR 1957 Patna 139 the scope of section 14 of the Limitation Act came into
consideration during second appeal and it was held as under:--
"Section 14 is to protect a former infructuous, but bona fide litigation. The principle
underlying it is that the bar of limitation should not affect a person honestly doing his
best to get his case tried on merits, but failing through the Court being unable to give him
such a trial. The principle is clearly applicable not only to a case in which a man brings
his suit in the Court, that is, a Court having no jurisdiction to entertain it, but also where
he brings the suit in the wrong Court in consequence of a bona fide mistake of law or
defect of procedure."
Besides in the said case it was further held that the application of section 14 can,
therefore, be considered in cases by the High Court in second appeal even if no ground
under section 14 was taken by the plaintiff in the plaint.
From the above discussion the inescapable conclusion would be that the application
under section 14 can be considered by the Trial Court even if not specifically mentioned
in the plaint. However, another principle which is very pertinent is that such Court should
take into consideration necessary conditions while granting or refusing condonation.
These necessary conditions are that the plaintiff must have brought the suit in a Court
having no jurisdiction to entertain it and secondly the suit so brought in the Court was in
consequence of bona fide mistake of law or defect of procedure.
From the perusal of impugned order I do not find that learned Majlise-Shoora has dilated
upon these aspects in detail. It has dealt with this important issue in a cursory manner and
has not concluded that the proceedings before the Civil Court had been filed bona fide
and in good faith or otherwise. The order passed to the said extent is, therefore, set aside
and is remanded to the Majlis-e-Shoora with direction to allow the parties to lead
evidence on this issue again.
A last attempt was made by Mr. Basharatullah who argued that the plaintiff has submitted
a fresh suit before Majlis-e-Shoora, therefore, section 14 of the Limitation Act does not
apply and onus would lie on the plaintiff to prove that the suit filed was within time.
Undoubtedly benefit of section 14 of the Limitation Act is extended only where the plaint
returned for want of jurisdiction is filed in a Court of competent jurisdiction and not on
filing a fresh plaint on the same facts. But, from perusal of impugned judgment it
becomes clear that the same plaint and its Urdu translation had been filed before
Majlisi-e-Shoora as Member of Majlis-e-Shoora was not acquainted with English. In the
circumstances the argument becomes irrelevant and loses its force.
It may be mentioned that by the impugned order learned Majlis-eShoora has disposed of
the preliminary issues other than the issue of limitation. I do not find any irregularity in
disposing of the remaining preliminary issues which are settled. However, the issue of
limitation and evidence taken thereon may be taken alongwith other issues on merits and
decided by learned Majlise-Shoora in accordance with law. Order accordingly.
I pass no orders as to costs.
A.A./547/Q Order
accordingly.
1997 C L C 1462
[Lahore]
Before Raja Muhammad Khurshid, J
Mst. SAFIA LATIF---Petitioner
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of
Communication and 4 others---Respondents
Civil Revisions Nos.2857 and 2858 of 1994, heard on 28th January, 1997
(a) Civil Procedure Code (V of 1908)---
----S. 79---Constitution of Pakistan (1973), Art. 174---Suit against
Government---Province was sued through Secretary, Board of Revenue, while Federation
of Pakistan was sued through Secretary, Ministry of Communication---No irregularity or
illegality in impleading Province and Federation in accordance with provisions of
Constitution and Code of Civil Procedure seemed to have been committed---Suit in
question was, thus, properly filed against Province as also against Federation.
Province of the Punjab and others v. Muhammad Hussain and others PLD 1993 SC 147
ref.
(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)---
----S.10---Suit land permanently transferred in favour of plaintiff---Subsequent transfer of
land to defendant department---Validity---Plaintiffs having already got permanent
proprietary right in said land, same was not available for transfer to any other
person/department--Subsequent transfer of the land in favour of defendant (department)
was bad in eye of law---Suits to that effect filed by plaintiff were well-based in order to
get Revenue Record corrected in accordance with their title deeds.
(c) Civil Procedure Code (V of 1908)---
----Ss. 80, 12 & O. IX, R. 13---Setting aside ex parte decree---Bar of
limitation---Defendants moved applications for setting aside ex parte decree well beyond
period of limitation---Plea taken by defendants was that they had no knowledge of ex
pane decrees having been passed against them---Such plea was not borne out from
record---Notice was sent to Federation of Pakistan through registered post along with
notice through ordinary process---Nothing on record existed to show that notices never
reached department concerned; that provisions of S.80, C.P.C. were not complied with to
give requisite notice in specified period before decreeing suit; that decrees suffered from
fraud and misrepresentation and were liable to be set aside---Besides being time-barred
applications, joint application in terms of O.IX, R. 13, and S. 12, C.P.C. were not
maintainable---Apart from such defects applications were filed through persons who were
not party to suit and, thus, had no locus standi to file the same---Such applications,
therefore, were rightly dismissed in circumstances.
(d) Civil Procedure Code (V of 1908)---
----O.IX, R. 13, Ss.12(2) & 115---Ex parte decrees against defendants--Applications for
setting aside ex parte decrees were dismissed by Trial Court being barred by time and
having been filed by persons who had no locus standi to file the same---Appellate Court
set aside ex pane decree in appeal--Validity---Appellate Court in setting aside ex parte
decrees had travelled beyond its jurisdiction and had misread evidence on
record---Judgment and decrees passed by Appellate Court were set aside and that of Trial
Court were restored.
Syed Sajjad for Petitioner. Ch. Hameed-ud-Din for Respondents
Date of hearing: 28th January, 1997.
JUDGMENT
The abovementioned revision petitions were filed against the common judgment and
decree dated 9-5-1994, passed by Mr. Inam Ullah Khan, Additional District Judge,
Lahore, whereby, he accepted the appeals instituted by the respondents/defendants and
set aside the decrees and judgments dated 14-1-1991 and 11-2-1993 respectively passed
by the learned trial Court in favour of the petitioners/plaintiffs. Since the common
judgment of the learned First Appellate Court is challenged in both the revision petitions,
therefore, it will be just and proper to dispose them of through this consolidated
judgment.
2. The brief facts are that Mst. Safia Latif filed a suit for declaration in which she
contended that tale land measuring 6 Kanals, 10 Marlas bearing Khasra No.229/230 Min
situated in village Dhanna Singhwala; Tehsil and District Lahore being an evacuee
property was provisionally transferred to one Muhammad Hussain son of Ghulam
Muhammad by the Settlement and Rehabilitation Department, Government of Pakistan
vide Provisional Transfer Order No.709072 dated 12-3-1962. Later, the aforesaid
Muhammad Hussain surrendered his full rights in the land in question in favour of the
aforesaid plaintiff by executing a deed of association which was approved by the Deputy
Settlement and Rehabilitation Commissioner, Lahore vide his order dated 29-10-1964.
Thereafter, the Permanent Transfer Deed dated 21-3-1969 was issued in favour of the
plaintiff, who allegedly became absolute owner of the aforesaid plot of land. Since then,
the plaintiff claimed to be in possession of the land aforesaid as owner through her tenant
Muhammad Hussain aforementioned. The plaintiff applied to the Collector, Lahore for
entering her name as owner of the land in Revenue Record but despite of repeated
requests, it was not done. Strangely enough, the Collector, Lahore while acquiring 302
Kanals, 12 Marlas of land for transferring to Telegraph and Telephone Department vide
mutation No.771 dated 12-6-1982, wrongly alienated the disputed land measuring 6
Kanals, 10 Marlas comprised in Khasra No.229/230 Min, though it was not legally
transferable, having been already transferred to the plaintiff by the competent authority.
Feeling aggrieved, the plaintiff applied for certified copy of mutation No.771 dated
12-6-1982 but the same was not supplied to him by the Collector. Hence she filed a suit
for declaration cum permanent injunction against the Province of Punjab (defendant
No.1), the Collector, Lahore (defendant No.2) and the Federation of Pakistan through
Secretary, Ministry of Communication, Government of Pakistan, Islamabad (defendant
No.3). It was contended in the suit that the plaintiff had become owner with possession of
disputed land after its permanent transfer in her favour and the subsequent transfer of the
disputed land in the name of Telegraph and Telephone Department was stated to be mala
fide without lawful authority and of no legal effect upon the rights of the plaintiff.
3. The same facts were involved in the connected suit and revision petition with the
difference that Abdul Ghani plaintiff claimed 7 Kanals of land out of Khasra No.230 Min
situated in village Dhanna Singhwala, Tehsil and District Lahore. He also claimed in his
suit for declaration cum permanent injunction that the property in question being an
evacuee was provisionally transferred to one Ghulam Muhammad son of Mahi by the
Settlement and Rehabilitation Department by virtue of Provisional Transfer Order
No.709071 dated 12-3-1962. Subsequently, the aforesaid Ghulam Muhammad son of
Mahi surrendered his full rights in the property in question in favour of Abdul Ghani by a
deed of association which was approved by the competent authority vide its order dated
29-10-1964. Thereafter, a Permanent Transfer Order dated 21-31969, fully detailed in the
plaint, was issued to confer final transfer of the land in question in favour of the plaintiff.
He took possession of the land as owner, and thereafter, Ghulam Muhammad son of Mahi
aforesaid had become a tenant under him. Like Mst. Safia Latif, plaintiff Abdul Ghani
also applied to the Collector for recording his ownership in the revenue record but the
Collector declined to do so. Instead, it transpired that 302 Kanals, 12 Marlas of land
including the land of the aforesaid plaintiff was transferred illegally in favour of the
Telegraph and Telephone Department vide Mutation No.771 dated 12-6-1982. The
aforesaid plaintiff (Abdul Ghani) also contended that the subsequent transfer in favour of
the Telegraph and Telephone Department was null and void in the eye of law because the
Permanent Transfer Deed stood intact in his favour and without cancelling it, its further
transfer could not be made. In this regard, it was contended that since permanent
proprietary rights had been conferred upon the plaintiff, therefore, those could not be
cancelled nor the land could be transferred onward to anyone else.
4. Both the suits remained pending in the Court below and were ultimately decreed on the
basis of ex parte evidence by the learned Trial Court.
5. Subsequently, the Federation of Pakistan through Secretary, Ministry of
Communication, Government of Pakistan, Pakistan Telecommunication Corporation
through its Chairman, Islamabad and the General Manager, Pakistan Telecommunication
Corporation, Lahore Region filed two separate petitions under Order 9, Rule 13 read with
section 12(2), C.P.C. against the impugned ex parte decrees dated 14-1-1991 passed in
favour of the aforesaid plaintiffs. In those petitions, in addition to the respective
plaintiffs, the Province of Punjab through Secretary, Board of Revenue Punjab,' Lahore
and the Collector Lahore, District Lahore were also impleaded as defendants.
6. The aforesaid petitions were contested but were dismissed by Mr. Mushtaq Hussain,
learned Civil Judge 1st Class, Lahore vide his order dated 11-2-1993 and as such, the ex
pane decrees in favour of the respective plaintiffs were allowed to stand. The
revisions/appeals against the aforesaid dismissals of petitions were filed by the
Federation of Pakistan, and the Telecommunication Corporation of Pakistan and the
General Manager, Pakistan Telecommunication Corporation, Lahore which were
accepted by Mr. Inam Ullah Khan, learned Additional District Judge, Lahore vide his
order dated 9-5-1994. The revision petitions were, however, returned for presentation in
the proper Court but the appeals were accepted as stated above. The ex parte decrees
were set aside.and the suits of the plaintiffs were also dismissed. The plaintiffs,
thereupon, instituted the above captioned revision petitions to challenge the dismissal of
their suits by the judgment dated 9-5-1994, passed by the learned First Appellate Court. It
was prayed that the impugned judgment of the first Appellate Court be set aside and that
the orders passed by the Courts below dated 11-2-1993 and 14-1-1991 be restored.
7. I have heard the learned counsel for the parties at length.
8. It is submitted by the learned counsel for the revision petitioners that the learned First
Appellate Court committed material irregularity in deciding the question of limitation;
that the petitions for setting aside the ex parte decrees were hopelessly time-barred; that
the respondent No. l was properly served in the original suit but nobody appeared to
contest the same; that respondents Nos. 2 and 3 being the successors and attached
departments of respondent No. l were also bound by the impugned decrees and that
respondents Nos.4 and 5 having consented to the passing of the impugned decrees could
not agitate the matter before the learned First Appellate Court. Further contended that the
learned first Appellate Court had misread the evidence brought on record, whereby, it was
clearly shown that the petitioners/plaintiffs were the permanent transferees of the land in
question. That the learned First Appellate Court, also, wrongly compared the facts
reported in Province of the Punjab and others v. Muhammad Hussain and others reported
as PLD 1993 Supreme Court 147 with the facts of the petitioners' cases and was misled to
dismiss their suits. In this regard, it was contended that in the reported case, one
Muhammad Hussain (a different person than Muhammad Hussain who had entered into
association with Mst. Safia Latif) had brought a suit against the Settlement Department in
which he contended that he was the owner of the land measuring 1887 Kanals, 14 Marlas
in Khewat No.1, Khatuni Nos.1 to 52, according to Jamabandi for the year 1945-46
situated in Had Bast of village Dhanna Singhwala, Tehsil and District Lahore on the
strength of purchase made by him from a Hindu evacuee on 14-6-1946 for a sum of
Rs.90,000. The grievance expressed in the plaint was that being minor at the time of
purchase of the aforesaid land in 1946 by his late father in his name, he remained for
various reasons unaware of his property and rights therein till 1977 when he got the
particulars of the property, a copy of the registered sale-deed and instituted the suit taking
his cause of action to have arisen in 1977. The Collector refused to give effect to the
registered deed and the Deputy Custodian held that he had no jurisdiction to deal with the
claim. Hence he filed the suit aforementioned which was dismissed on various grounds
including that he was not the owner of the land in question and that his claim was also
time-barred. In addition to that, it was held that the parties were wrongly arrayed being in
violation of section 79 read with Order XXVII of the Civil Procedure Code. The suit also
allegedly infringed the provisions contained in Article 174 of the Constitution as all the
suits against the Federation had to be filed in the name of Pakistan and against a
Provincial Government in the name of the Province. Learned counsel for the petitioners
contended that the facts of the case in hand were intrinsically different than the reported
case. In this connection, it was submitted that the claim of Muhammad Hussain was
based on some registered document which was executed before partition in the year 1'946
and since then the plaintiff of that case remained silent till he brought the suit somewhere
in 1978. Hence, the suit was held to have been time-barred. In the instant case, the suit
was well within time and was instituted against the proper parties. The claim was based
on the Permanent Transfer Deed, issued by the competent authority and hence there was
no comparison between the facts of the case in hand and that of the reported case. Even
the claim of the plaintiffs was admitted during the trial of the petition for setting aside the
ex parte order which was hotly contested and in which nothing was brought on record
that the transfer deed in favour of the plaintiffs was based on fraud and misrepresentation.
On the contrary, a Government official named Arif Butt representing the Province of
Punjab appeared and admitted the claim and the documents in favour of the plaintiffs but
he was wrongly disbelieved by the learned First Appellate Court. That there was actually
no reason to disbelieve the evidence of Arif But because the respondents never produced
any evidence to show that in fact the transfer in favour of the plaintiffs/petitioners was
either bogus or tainted with fraud. In such a situation, the impugned ex parte decrees did
not suffer from any legal lacuna nor the subsequent petitions for setting aside those
decrees moved by the respondents had any merit in them having been time-barred. The
respondents also failed to show sufficient cause for setting aside the ex parte decrees and
hence, those were rightly dismissed.
9. Learned counsel for the contesting respondents contended that the land in
question alongwith other land had been transferred to the Pakistan Telecommunication
Corporation and the General Manager of the aforesaid Corporation based at Lahore, were
the proper parties to be sued in the .suit below. Since they were not made the defendants,
therefore, the ex parte decrees against them would not stand and there would be no
question of running out limitation against them except when they had come to know
about such decrees as aggrieved parties. That the plaintiffs had allegedly committed gross
illegality in impleading Federation of Pakistan through Secretary, Ministry of
Communication, Government of Pakistan, Islamabad in the original suits instead of
impleading the Corporation which had succeeded after the creation of the aforesaid
Corporation through a statute. This was allegedly in violation of section 79 of the Civil
Procedure Code and Article 174 of the Constitution of Pakistan. Since there were no
proper parties before the trial Court in the original suits, therefore, all the proceedings in
those suits were null and void. It was also urged that the allotment and transfer in favour
of the plaintiffs had become void after the land was notified to be the ownership of the
Pakistan Telecommunication Corporation by a competent Authority being an urban
property. It was, therefore, urged that the learned First Appellate Court had rightly passed
the order, whereby, the dismissals of the petitions for setting aside the ex parte decrees
were set aside and the suits were dismissed.
10. I have gone through the entire record pertaining to the original civil suits, petitions
under Order 9, rule 13 read with section 12(2), C.P.C. and the record of the learned First
Appellate Court. The original suits were filed in 1990 by both the petitioners/plaintiffs
separately on the basis of the transfer deeds in their favour. One Arif Butt, Record Keeper
had appeared on behalf of. The Province of Punjab i.e.; defendant No. l in those suits and
had made a statement that the plaintiffs in both the suits were the P.T.O. holders regarding
the property in question with effect from 12-3-1962 and that the P.T.Ds. were also issued
in their favour in 1969 and that the P.T.Os. and the .T.Ds. still stood validly in favour of
the aforesaid plaintiffs and that those have never been cancelled; that the plaintiffs did not
owe any arrears as they had paid full and final amount regarding the land in question; and
that there was no litigation of any kind between the plaintiffs or the department. The
aforesaid representative Arif Butt further stated that he had no objection on behalf of the
Government of Punjab i.e.; defendant No. l if the suits are decreed as the aforesaid
defendant does not want to contest the same. This statement was made on 6-1-1991 and
was signed by the aforesaid representative. Thereafter, the plaintiffs examined one Imtiaz
Ali separately in each of the suits who also contended that the P.T.Os. and the P.T.Ds. had
been issued in favour of the petitioners/plaintiffs who were in possession of the same and
that the land was being cultivated through their tenants; that land measuring 13 Kanals
and 10 Marlas belonging to the plaintiffs had wrongly been transferred to defendant No.3
i.e.; Federation of Pakistan through Secretary, Ministry of Communication, Government
of Pakistan; that defendant No.2 i.e.; Collector was moved for the correction of the
entries in the Revenue Record but he declined, whereupon, the suits were filed.
11. . It follows from the above that the suits were decreed on the basis of the aforesaid
evidence and since then there was no objection from the Province of Punjab against those
decrees. Now the question would arise whether there was any misjoinder or non-joinder
of the parties in the suits. The law which has already been referred to above state, that the
suit against the Province is to be filed by impleading the concerned Province in the plaint.
Likewise, the suit. against the Federation is to be filed by impleading Pakistan as a
Federation through the Secretary of the relevant department. In the instant case,
defendant No. l was the Province of Punjab through the Secretary, Board of Revenue,
Punjab and defendant No.3 was Federation of Pakistan through Secretary, Ministry of
Communication, Government of Pakistan, Islamabad. Hence there does not seem to be
any irregularity or illegality in impleading them as defendants particularly when the
Province as well as the Federation were sued in accordance with the provisions of the
Constitution as well as the Code of Civil Procedure. The Collector, Lahore was also
impleaded as he was concerned with the maintenance of the correct Revenue Record. The
plaintiffs were permanent transferees of the land in question through the P.T.Os. issued in
1962 and the P.T.Ds. issued in 1969 much before the mutation No.771 dated 12-6-1982,
issued in favour of the Telegraph and Telephone Department. It is, thus, obvious that
since the plaintiffs had already got permanent proprietary rights, therefore, the land in
question was not available for transfer to -any other department on B 12-6-1982 and as
such, transfer in favour: of the Telegraph and Telephone Department was not good in the
eye of law. The suits to that effect filed by the plaintiffs were well based in order to get
the Revenue Record corrected in accordance with their title deeds. '
12. Now the question would arise whether the defendants in the original suits were
properly served or not. In that respect, it may be pointed out that the notices were issued
to all the defendants on 29-11-1990 for 9-12-1990. The suits were also accompanying the
petitions for temporary injunctions being an urgent matter. The notices were issued in the
suits as well as in the petitions for temporary injunction for a shorter date. There seems to
be no irregularity because injunction could only be issued after notice to the Government.
The notices were accordingly issued and it were served upon the Collector as would be
clear from the second copy of the notice which was acknowledged to have been received
by some official of the office of the Collector on 5-2-1990. Likewise, the second copy of
the notice to the Federation of Pakistan through its Secretary was also on file alongwith
receipt of the registered envelope showing that the notice was despatched to the aforesaid
defendant. The. notice upon defendant No.l was also received back duly signed by an
official of the department on 4-12-1990. Hence service upon all the defendants was
complete and since they did not appear except defendant No.l, therefore, they were
rightly proceeded against ex parte and the suits- were rightly decreed ex parte. .
13. Now the question would arise whether the petitions under Order 9, Rule 13 read with
section 12(2), C.P.C. against the impugned judgment and decrees showed sufficient cause
for setting aside those decrees. It was contended in the petitions aforesaid that the
petitioners came to know about the impugned decrees on 24-7-1991 and as such, they
could not challenge the impugned judgment and decrees in time and hence, the limitation
would start from the date of knowledge. This appears to be not a correct version because
petitioner No. l i.e.; Federation of Pakistan was sent a notice through a registered post for
service alongwith the notice through the ordinary process. There is nothing on record to
show that the aforesaid notice never reached the department concerned; that the
provisions contained in section 80, C.P.C. were not complied with to give the requisite
notice in a specified period before decreeing the suit; that both the decrees suffered from
fraud and misrepresentations and were liable to be sete aside. The petitions were also
opposed on the grounds that those were barred by limitation and that the petition under
section 12(2), C.P.C. and a petition under Order 9, Rule 13, C.P.C. could not be combined
and as such, the joint petition under two different provisions of law was not maintainable.
The' respondents/applicants Nos.2 and 3 i.e.; Pakistan Telecommunication Corporation
and its General Manager had allegedly no locus standi to file those petitions for setting
aside the decrees as they were not parties in the original suits.
14. It was further contended that on merits also, the petitions were not competent as the
plaintiffs were the bona fide permanent transferees of the land in question. That the
learned trial Judge, after framing the issues, came to the conclusion that the petitions for
setting aside the ex pane decrees were time barred and that the decrees obtained on
14-1-1991 did not suffer from any fraud or misrepresentation or collusion of respondent
No.2 (Province of the Punjab) with the plaintiffs. In this regard, it was observed by the
learned trial Court that not an iota of evidence in respect of fraud was brought on record
to show that there was any misrepresentation, fraud or collusion in obtaining the
title-deeds by the petitions/plaintiffs. On the contrary, it was found that Mr. Arif Butt,
Record Keeper of the Board of Revenue had clearly stated that ' the petitioners/plaintiffs
were bona fide transferees of the property in question. After discussing the evidence and
coming to the conclusion that there was no fraud, misrepresentation or collusion in the
disputed transactions and that the petitions were time-barred, the same were rightly
dismissed by the trial Court. The learned First Appellate Court reversed the findings on
the ground that the property had since been transferred to the Pakistan
Telecommunication Corporation, therefore, transfer in favour of the petitioners was bad
in the eye of law and that their suits were not properly instituted. The appeals as stated
above, were, therefore, accepted.
15. After taking into consideration the foregoing facts and on perusal of report, it
becomes clear that in a suit titled Muhammad Hussain v. Government of Pakistan, an
application under Order 1, Rule 10, C.P.C. was admittedly moved by the
plaintiffs/petitioners to become a party in which the respondents/petitioners i.e.; Pakistan
Telecommunication Corporation and the General Manager were also parties. That
application was moved on 17-6-1991 and that the respondents/applicants were also party
to that suit. It is, thus, obvious that the learned Civil Judge had rightly held that they had
the knowledge of the decrees in question when the aforesaid petition was made but they
slept over and did not take the remedial action to file the petition under Order 9, Rule 13,
C.P.C. for setting aside those decrees in time. It appears that after coming to know about
decrees, the Telephone Department acted in lethargy to file the petition beyond limitation
period and, hence, could not advance any sufficient reason nor could explain each day of
delay as was required by law. There is, therefore, no truth or force in the plea that they
only came to know about the decrees on 24-7-1991. The other plea that the Pakistan
Telecommunication Corporation and the General Manager should have been impleaded
in the original suits, does not carry convincing force because the alleged transfer order
was made in favour of Pakiswa Telegraph and Telephone Department through General
Manager, Telephone Region, Lahore and not in favour of Pakistan Telecommunication
Corporation which by the date of transfer i.e.; 20-6-1979 had not yet come into existence
because the Ordinance creating it came in 1990, which was later on brought on the statute
book as Act XIII of 1991. It was admitted by Hafiz Muhammad Abdul Shakoor,
Divisional Engineer as A.W.1 that Telephone Department was under the administrative
control of Ministry of Communication, Government of Pakistan. As such, the original
suits in the name of Federation of Pakistan through Secretary, Ministry of
Communication, Government of Pakistan were rightly instituted and had those `been
instituted in the name of Pakistan Telecommunication Corporation or the General
Manager then it would have in fact violated the Constitutional provisions contained in
Article 174 of the Constitution and the provisions of section 79 read with section 80 of
the Code of Civil Procedure. It is, thus, obvious that there was no legal defect with either
of the suits in the Court below nor it could be proved that the respondents in those cases
were not served. It is also on record that applications under Order 1, Rule 10, C.P.C. were
made by the respective plaintiffs in a suit filed by Muhammad Hussain against the
present respondents i.e.; Telephone Department and as such, they had gained knowledge
about the impugned decrees on 17-6-1991 but they filed the present petitions on
20-7-1991 without showing any sufficient cause for delay beyond 30 days. As such, the
petitions were hopelessly time-barred on that ground as well. The learned trial Judge had
rightly observed that there was no evidence on record to show that the transfer deed in
favour of the plaintiffs/petitioners were bogus or were tainted with fraud,
misrepresentation or collusion. Likewise, there was nothing on record to show that Arif
Butt i.e.; representative of the Board of Revenue was an unauthorised person to make the
statement. On the contrary, he was the Record Keeper and had made his statement from
the record which he had brougt in the Court and had testified that the
petitioners/applicants were the bona fide transferees of the land in question by the
competent Authority. Since they had become owners by virtue of the permanent
transfer-deeds in their favour issued in 1969, therefore, the aforesaid transfer to them
having not been cancelled, the land in question was not available for re-transfer. Hence its
subsequent transfer in favour of the respondent i.e.; Telephone Department on 20-6-1979
was illegal and violative of the proprietary rights of the petitioners/plaintiffs. As such,
there was no merit in the petitions under Order 9; Rule 13 read with section 12(2) of the
Code of Civil Procedure moved by the respondents/defendants and those were rightly
dismissed by the learned Civil Judge but the learned First Appellate Court wrongly and
arbitrarily set aside the ex parte proceedings and also dismissed the suits without taking
into account that the facts in the reported authority of the Supreme Court of Pakistan and
the facts in the case in hand, were totally different from each other. Likewise, the learned
First Appellate Court fell in error to come to the conclusion that Arif Butt was not an
authorised person to make statement in the trial Court. On the contrary, his statement
clearly shows that he was Record Keeper and was authorised to appear in the Court to
represent the department. He had not given the oral evidence based on his memory but
had produced the record from which, he had stated that the plaintiffs/petitioners were
bona fide transferees and had rightly been issued Permanent Transfer Deeds. In such a
situation, holding otherwise, the learned First Appellate Court travelled beyond its
jurisdiction and also misread and misinterpreted the evidence which was brought on
record.
16. In view of my above discussion, both the revision petitions are accepted and the
impugned judgment and decree dated 9-5-1994 passed by the learned Additional District
Judge, Lahore i.e.; the First Appellate Court are set aside in both the cases and the
applications moved by the respondents for setting aside the ex parte decrees under Order
9, Rule 13 read with section 12(2), C.P.C. are dismissed and the orders passed by the
learned Civil Judge on 11 -2-1993 in both the petitions are upheld. Likewise, the
impugned orders dated 14-1-1991, passed by the learned Senior Civil Judge granting ex
parte decrees in both the cases are also upheld. The parties are left to bear their own
expenses throughout.
17. Learned counsel for the petitioners did not press Criminal Original No.68-C of 1994
Mst. Safia Latif v. Federation of Pakistan and Criminal Original No.69-C of 1994 Abdul
Ghani v. Federation of Pakistan and requested for their withdrawal. These are accordingly
disposed of as withdrawn.
A.A./S-109/L Revision accepted
1997 C L C 1462
[Lahore]
Before Raja Muhammad Khurshid, J
Mst. SAFIA LATIF---Petitioner
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of
Communication and 4 others---Respondents
Civil Revisions Nos.2857 and 2858 of 1994, heard on 28th January, 1997
(a) Civil Procedure Code (V of 1908)---
----S. 79---Constitution of Pakistan (1973), Art. 174---Suit against
Government---Province was sued through Secretary, Board of Revenue, while Federation
of Pakistan was sued through Secretary, Ministry of Communication---No irregularity or
illegality in impleading Province and Federation in accordance with provisions of
Constitution and Code of Civil Procedure seemed to have been committed---Suit in
question was, thus, properly filed against Province as also against Federation.
Province of the Punjab and others v. Muhammad Hussain and others PLD 1993 SC 147
ref.
(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)---
----S.10---Suit land permanently transferred in favour of plaintiff---Subsequent transfer of
land to defendant department---Validity---Plaintiffs having already got permanent
proprietary right in said land, same was not available for transfer to any other
person/department--Subsequent transfer of the land in favour of defendant (department)
was bad in eye of law---Suits to that effect filed by plaintiff were well-based in order to
get Revenue Record corrected in accordance with their title deeds.
(c) Civil Procedure Code (V of 1908)---
----Ss. 80, 12 & O. IX, R. 13---Setting aside ex parte decree---Bar of
limitation---Defendants moved applications for setting aside ex parte decree well beyond
period of limitation---Plea taken by defendants was that they had no knowledge of ex
pane decrees having been passed against them---Such plea was not borne out from
record---Notice was sent to Federation of Pakistan through registered post along with
notice through ordinary process---Nothing on record existed to show that notices never
reached department concerned; that provisions of S.80, C.P.C. were not complied with to
give requisite notice in specified period before decreeing suit; that decrees suffered from
fraud and misrepresentation and were liable to be set aside---Besides being time-barred
applications, joint application in terms of O.IX, R. 13, and S. 12, C.P.C. were not
maintainable---Apart from such defects applications were filed through persons who were
not party to suit and, thus, had no locus standi to file the same---Such applications,
therefore, were rightly dismissed in circumstances.
(d) Civil Procedure Code (V of 1908)---
----O.IX, R. 13, Ss.12(2) & 115---Ex parte decrees against defendants--Applications for
setting aside ex parte decrees were dismissed by Trial Court being barred by time and
having been filed by persons who had no locus standi to file the same---Appellate Court
set aside ex pane decree in appeal--Validity---Appellate Court in setting aside ex parte
decrees had travelled beyond its jurisdiction and had misread evidence on
record---Judgment and decrees passed by Appellate Court were set aside and that of Trial
Court were restored.
Syed Sajjad for Petitioner. Ch. Hameed-ud-Din for Respondents
Date of hearing: 28th January, 1997.
JUDGMENT
The abovementioned revision petitions were filed against the common judgment and
decree dated 9-5-1994, passed by Mr. Inam Ullah Khan, Additional District Judge,
Lahore, whereby, he accepted the appeals instituted by the respondents/defendants and
set aside the decrees and judgments dated 14-1-1991 and 11-2-1993 respectively passed
by the learned trial Court in favour of the petitioners/plaintiffs. Since the common
judgment of the learned First Appellate Court is challenged in both the revision petitions,
therefore, it will be just and proper to dispose them of through this consolidated
judgment.
2. The brief facts are that Mst. Safia Latif filed a suit for declaration in which she
contended that tale land measuring 6 Kanals, 10 Marlas bearing Khasra No.229/230 Min
situated in village Dhanna Singhwala; Tehsil and District Lahore being an evacuee
property was provisionally transferred to one Muhammad Hussain son of Ghulam
Muhammad by the Settlement and Rehabilitation Department, Government of Pakistan
vide Provisional Transfer Order No.709072 dated 12-3-1962. Later, the aforesaid
Muhammad Hussain surrendered his full rights in the land in question in favour of the
aforesaid plaintiff by executing a deed of association which was approved by the Deputy
Settlement and Rehabilitation Commissioner, Lahore vide his order dated 29-10-1964.
Thereafter, the Permanent Transfer Deed dated 21-3-1969 was issued in favour of the
plaintiff, who allegedly became absolute owner of the aforesaid plot of land. Since then,
the plaintiff claimed to be in possession of the land aforesaid as owner through her tenant
Muhammad Hussain aforementioned. The plaintiff applied to the Collector, Lahore for
entering her name as owner of the land in Revenue Record but despite of repeated
requests, it was not done. Strangely enough, the Collector, Lahore while acquiring 302
Kanals, 12 Marlas of land for transferring to Telegraph and Telephone Department vide
mutation No.771 dated 12-6-1982, wrongly alienated the disputed land measuring 6
Kanals, 10 Marlas comprised in Khasra No.229/230 Min, though it was not legally
transferable, having been already transferred to the plaintiff by the competent authority.
Feeling aggrieved, the plaintiff applied for certified copy of mutation No.771 dated
12-6-1982 but the same was not supplied to him by the Collector. Hence she filed a suit
for declaration cum permanent injunction against the Province of Punjab (defendant
No.1), the Collector, Lahore (defendant No.2) and the Federation of Pakistan through
Secretary, Ministry of Communication, Government of Pakistan, Islamabad (defendant
No.3). It was contended in the suit that the plaintiff had become owner with possession of
disputed land after its permanent transfer in her favour and the subsequent transfer of the
disputed land in the name of Telegraph and Telephone Department was stated to be mala
fide without lawful authority and of no legal effect upon the rights of the plaintiff.
3. The same facts were involved in the connected suit and revision petition with the
difference that Abdul Ghani plaintiff claimed 7 Kanals of land out of Khasra No.230 Min
situated in village Dhanna Singhwala, Tehsil and District Lahore. He also claimed in his
suit for declaration cum permanent injunction that the property in question being an
evacuee was provisionally transferred to one Ghulam Muhammad son of Mahi by the
Settlement and Rehabilitation Department by virtue of Provisional Transfer Order
No.709071 dated 12-3-1962. Subsequently, the aforesaid Ghulam Muhammad son of
Mahi surrendered his full rights in the property in question in favour of Abdul Ghani by a
deed of association which was approved by the competent authority vide its order dated
29-10-1964. Thereafter, a Permanent Transfer Order dated 21-31969, fully detailed in the
plaint, was issued to confer final transfer of the land in question in favour of the plaintiff.
He took possession of the land as owner, and thereafter, Ghulam Muhammad son of Mahi
aforesaid had become a tenant under him. Like Mst. Safia Latif, plaintiff Abdul Ghani
also applied to the Collector for recording his ownership in the revenue record but the
Collector declined to do so. Instead, it transpired that 302 Kanals, 12 Marlas of land
including the land of the aforesaid plaintiff was transferred illegally in favour of the
Telegraph and Telephone Department vide Mutation No.771 dated 12-6-1982. The
aforesaid plaintiff (Abdul Ghani) also contended that the subsequent transfer in favour of
the Telegraph and Telephone Department was null and void in the eye of law because the
Permanent Transfer Deed stood intact in his favour and without cancelling it, its further
transfer could not be made. In this regard, it was contended that since permanent
proprietary rights had been conferred upon the plaintiff, therefore, those could not be
cancelled nor the land could be transferred onward to anyone else.
4. Both the suits remained pending in the Court below and were ultimately decreed on the
basis of ex parte evidence by the learned Trial Court.
5. Subsequently, the Federation of Pakistan through Secretary, Ministry of
Communication, Government of Pakistan, Pakistan Telecommunication Corporation
through its Chairman, Islamabad and the General Manager, Pakistan Telecommunication
Corporation, Lahore Region filed two separate petitions under Order 9, Rule 13 read with
section 12(2), C.P.C. against the impugned ex parte decrees dated 14-1-1991 passed in
favour of the aforesaid plaintiffs. In those petitions, in addition to the respective
plaintiffs, the Province of Punjab through Secretary, Board of Revenue Punjab,' Lahore
and the Collector Lahore, District Lahore were also impleaded as defendants.
6. The aforesaid petitions were contested but were dismissed by Mr. Mushtaq Hussain,
learned Civil Judge 1st Class, Lahore vide his order dated 11-2-1993 and as such, the ex
pane decrees in favour of the respective plaintiffs were allowed to stand. The
revisions/appeals against the aforesaid dismissals of petitions were filed by the
Federation of Pakistan, and the Telecommunication Corporation of Pakistan and the
General Manager, Pakistan Telecommunication Corporation, Lahore which were
accepted by Mr. Inam Ullah Khan, learned Additional District Judge, Lahore vide his
order dated 9-5-1994. The revision petitions were, however, returned for presentation in
the proper Court but the appeals were accepted as stated above. The ex parte decrees
were set aside.and the suits of the plaintiffs were also dismissed. The plaintiffs,
thereupon, instituted the above captioned revision petitions to challenge the dismissal of
their suits by the judgment dated 9-5-1994, passed by the learned First Appellate Court. It
was prayed that the impugned judgment of the first Appellate Court be set aside and that
the orders passed by the Courts below dated 11-2-1993 and 14-1-1991 be restored.
7. I have heard the learned counsel for the parties at length.
8. It is submitted by the learned counsel for the revision petitioners that the learned First
Appellate Court committed material irregularity in deciding the question of limitation;
that the petitions for setting aside the ex parte decrees were hopelessly time-barred; that
the respondent No. l was properly served in the original suit but nobody appeared to
contest the same; that respondents Nos. 2 and 3 being the successors and attached
departments of respondent No. l were also bound by the impugned decrees and that
respondents Nos.4 and 5 having consented to the passing of the impugned decrees could
not agitate the matter before the learned First Appellate Court. Further contended that the
learned first Appellate Court had misread the evidence brought on record, whereby, it was
clearly shown that the petitioners/plaintiffs were the permanent transferees of the land in
question. That the learned First Appellate Court, also, wrongly compared the facts
reported in Province of the Punjab and others v. Muhammad Hussain and others reported
as PLD 1993 Supreme Court 147 with the facts of the petitioners' cases and was misled to
dismiss their suits. In this regard, it was contended that in the reported case, one
Muhammad Hussain (a different person than Muhammad Hussain who had entered into
association with Mst. Safia Latif) had brought a suit against the Settlement Department in
which he contended that he was the owner of the land measuring 1887 Kanals, 14 Marlas
in Khewat No.1, Khatuni Nos.1 to 52, according to Jamabandi for the year 1945-46
situated in Had Bast of village Dhanna Singhwala, Tehsil and District Lahore on the
strength of purchase made by him from a Hindu evacuee on 14-6-1946 for a sum of
Rs.90,000. The grievance expressed in the plaint was that being minor at the time of
purchase of the aforesaid land in 1946 by his late father in his name, he remained for
various reasons unaware of his property and rights therein till 1977 when he got the
particulars of the property, a copy of the registered sale-deed and instituted the suit taking
his cause of action to have arisen in 1977. The Collector refused to give effect to the
registered deed and the Deputy Custodian held that he had no jurisdiction to deal with the
claim. Hence he filed the suit aforementioned which was dismissed on various grounds
including that he was not the owner of the land in question and that his claim was also
time-barred. In addition to that, it was held that the parties were wrongly arrayed being in
violation of section 79 read with Order XXVII of the Civil Procedure Code. The suit also
allegedly infringed the provisions contained in Article 174 of the Constitution as all the
suits against the Federation had to be filed in the name of Pakistan and against a
Provincial Government in the name of the Province. Learned counsel for the petitioners
contended that the facts of the case in hand were intrinsically different than the reported
case. In this connection, it was submitted that the claim of Muhammad Hussain was
based on some registered document which was executed before partition in the year 1'946
and since then the plaintiff of that case remained silent till he brought the suit somewhere
in 1978. Hence, the suit was held to have been time-barred. In the instant case, the suit
was well within time and was instituted against the proper parties. The claim was based
on the Permanent Transfer Deed, issued by the competent authority and hence there was
no comparison between the facts of the case in hand and that of the reported case. Even
the claim of the plaintiffs was admitted during the trial of the petition for setting aside the
ex parte order which was hotly contested and in which nothing was brought on record
that the transfer deed in favour of the plaintiffs was based on fraud and misrepresentation.
On the contrary, a Government official named Arif Butt representing the Province of
Punjab appeared and admitted the claim and the documents in favour of the plaintiffs but
he was wrongly disbelieved by the learned First Appellate Court. That there was actually
no reason to disbelieve the evidence of Arif But because the respondents never produced
any evidence to show that in fact the transfer in favour of the plaintiffs/petitioners was
either bogus or tainted with fraud. In such a situation, the impugned ex parte decrees did
not suffer from any legal lacuna nor the subsequent petitions for setting aside those
decrees moved by the respondents had any merit in them having been time-barred. The
respondents also failed to show sufficient cause for setting aside the ex parte decrees and
hence, those were rightly dismissed.
9. Learned counsel for the contesting respondents contended that the land in
question alongwith other land had been transferred to the Pakistan Telecommunication
Corporation and the General Manager of the aforesaid Corporation based at Lahore, were
the proper parties to be sued in the .suit below. Since they were not made the defendants,
therefore, the ex parte decrees against them would not stand and there would be no
question of running out limitation against them except when they had come to know
about such decrees as aggrieved parties. That the plaintiffs had allegedly committed gross
illegality in impleading Federation of Pakistan through Secretary, Ministry of
Communication, Government of Pakistan, Islamabad in the original suits instead of
impleading the Corporation which had succeeded after the creation of the aforesaid
Corporation through a statute. This was allegedly in violation of section 79 of the Civil
Procedure Code and Article 174 of the Constitution of Pakistan. Since there were no
proper parties before the trial Court in the original suits, therefore, all the proceedings in
those suits were null and void. It was also urged that the allotment and transfer in favour
of the plaintiffs had become void after the land was notified to be the ownership of the
Pakistan Telecommunication Corporation by a competent Authority being an urban
property. It was, therefore, urged that the learned First Appellate Court had rightly passed
the order, whereby, the dismissals of the petitions for setting aside the ex parte decrees
were set aside and the suits were dismissed.
10. I have gone through the entire record pertaining to the original civil suits, petitions
under Order 9, rule 13 read with section 12(2), C.P.C. and the record of the learned First
Appellate Court. The original suits were filed in 1990 by both the petitioners/plaintiffs
separately on the basis of the transfer deeds in their favour. One Arif Butt, Record Keeper
had appeared on behalf of. The Province of Punjab i.e.; defendant No. l in those suits and
had made a statement that the plaintiffs in both the suits were the P.T.O. holders regarding
the property in question with effect from 12-3-1962 and that the P.T.Ds. were also issued
in their favour in 1969 and that the P.T.Os. and the .T.Ds. still stood validly in favour of
the aforesaid plaintiffs and that those have never been cancelled; that the plaintiffs did not
owe any arrears as they had paid full and final amount regarding the land in question; and
that there was no litigation of any kind between the plaintiffs or the department. The
aforesaid representative Arif Butt further stated that he had no objection on behalf of the
Government of Punjab i.e.; defendant No. l if the suits are decreed as the aforesaid
defendant does not want to contest the same. This statement was made on 6-1-1991 and
was signed by the aforesaid representative. Thereafter, the plaintiffs examined one Imtiaz
Ali separately in each of the suits who also contended that the P.T.Os. and the P.T.Ds. had
been issued in favour of the petitioners/plaintiffs who were in possession of the same and
that the land was being cultivated through their tenants; that land measuring 13 Kanals
and 10 Marlas belonging to the plaintiffs had wrongly been transferred to defendant No.3
i.e.; Federation of Pakistan through Secretary, Ministry of Communication, Government
of Pakistan; that defendant No.2 i.e.; Collector was moved for the correction of the
entries in the Revenue Record but he declined, whereupon, the suits were filed.
11. . It follows from the above that the suits were decreed on the basis of the aforesaid
evidence and since then there was no objection from the Province of Punjab against those
decrees. Now the question would arise whether there was any misjoinder or non-joinder
of the parties in the suits. The law which has already been referred to above state, that the
suit against the Province is to be filed by impleading the concerned Province in the plaint.
Likewise, the suit. against the Federation is to be filed by impleading Pakistan as a
Federation through the Secretary of the relevant department. In the instant case,
defendant No. l was the Province of Punjab through the Secretary, Board of Revenue,
Punjab and defendant No.3 was Federation of Pakistan through Secretary, Ministry of
Communication, Government of Pakistan, Islamabad. Hence there does not seem to be
any irregularity or illegality in impleading them as defendants particularly when the
Province as well as the Federation were sued in accordance with the provisions of the
Constitution as well as the Code of Civil Procedure. The Collector, Lahore was also
impleaded as he was concerned with the maintenance of the correct Revenue Record. The
plaintiffs were permanent transferees of the land in question through the P.T.Os. issued in
1962 and the P.T.Ds. issued in 1969 much before the mutation No.771 dated 12-6-1982,
issued in favour of the Telegraph and Telephone Department. It is, thus, obvious that
since the plaintiffs had already got permanent proprietary rights, therefore, the land in
question was not available for transfer to -any other department on B 12-6-1982 and as
such, transfer in favour: of the Telegraph and Telephone Department was not good in the
eye of law. The suits to that effect filed by the plaintiffs were well based in order to get
the Revenue Record corrected in accordance with their title deeds. '
12. Now the question would arise whether the defendants in the original suits were
properly served or not. In that respect, it may be pointed out that the notices were issued
to all the defendants on 29-11-1990 for 9-12-1990. The suits were also accompanying the
petitions for temporary injunctions being an urgent matter. The notices were issued in the
suits as well as in the petitions for temporary injunction for a shorter date. There seems to
be no irregularity because injunction could only be issued after notice to the Government.
The notices were accordingly issued and it were served upon the Collector as would be
clear from the second copy of the notice which was acknowledged to have been received
by some official of the office of the Collector on 5-2-1990. Likewise, the second copy of
the notice to the Federation of Pakistan through its Secretary was also on file alongwith
receipt of the registered envelope showing that the notice was despatched to the aforesaid
defendant. The. notice upon defendant No.l was also received back duly signed by an
official of the department on 4-12-1990. Hence service upon all the defendants was
complete and since they did not appear except defendant No.l, therefore, they were
rightly proceeded against ex parte and the suits- were rightly decreed ex parte. .
13. Now the question would arise whether the petitions under Order 9, Rule 13 read with
section 12(2), C.P.C. against the impugned judgment and decrees showed sufficient cause
for setting aside those decrees. It was contended in the petitions aforesaid that the
petitioners came to know about the impugned decrees on 24-7-1991 and as such, they
could not challenge the impugned judgment and decrees in time and hence, the limitation
would start from the date of knowledge. This appears to be not a correct version because
petitioner No. l i.e.; Federation of Pakistan was sent a notice through a registered post for
service alongwith the notice through the ordinary process. There is nothing on record to
show that the aforesaid notice never reached the department concerned; that the
provisions contained in section 80, C.P.C. were not complied with to give the requisite
notice in a specified period before decreeing the suit; that both the decrees suffered from
fraud and misrepresentations and were liable to be sete aside. The petitions were also
opposed on the grounds that those were barred by limitation and that the petition under
section 12(2), C.P.C. and a petition under Order 9, Rule 13, C.P.C. could not be combined
and as such, the joint petition under two different provisions of law was not maintainable.
The' respondents/applicants Nos.2 and 3 i.e.; Pakistan Telecommunication Corporation
and its General Manager had allegedly no locus standi to file those petitions for setting
aside the decrees as they were not parties in the original suits.
14. It was further contended that on merits also, the petitions were not competent as the
plaintiffs were the bona fide permanent transferees of the land in question. That the
learned trial Judge, after framing the issues, came to the conclusion that the petitions for
setting aside the ex pane decrees were time barred and that the decrees obtained on
14-1-1991 did not suffer from any fraud or misrepresentation or collusion of respondent
No.2 (Province of the Punjab) with the plaintiffs. In this regard, it was observed by the
learned trial Court that not an iota of evidence in respect of fraud was brought on record
to show that there was any misrepresentation, fraud or collusion in obtaining the
title-deeds by the petitions/plaintiffs. On the contrary, it was found that Mr. Arif Butt,
Record Keeper of the Board of Revenue had clearly stated that ' the petitioners/plaintiffs
were bona fide transferees of the property in question. After discussing the evidence and
coming to the conclusion that there was no fraud, misrepresentation or collusion in the
disputed transactions and that the petitions were time-barred, the same were rightly
dismissed by the trial Court. The learned First Appellate Court reversed the findings on
the ground that the property had since been transferred to the Pakistan
Telecommunication Corporation, therefore, transfer in favour of the petitioners was bad
in the eye of law and that their suits were not properly instituted. The appeals as stated
above, were, therefore, accepted.
15. After taking into consideration the foregoing facts and on perusal of report, it
becomes clear that in a suit titled Muhammad Hussain v. Government of Pakistan, an
application under Order 1, Rule 10, C.P.C. was admittedly moved by the
plaintiffs/petitioners to become a party in which the respondents/petitioners i.e.; Pakistan
Telecommunication Corporation and the General Manager were also parties. That
application was moved on 17-6-1991 and that the respondents/applicants were also party
to that suit. It is, thus, obvious that the learned Civil Judge had rightly held that they had
the knowledge of the decrees in question when the aforesaid petition was made but they
slept over and did not take the remedial action to file the petition under Order 9, Rule 13,
C.P.C. for setting aside those decrees in time. It appears that after coming to know about
decrees, the Telephone Department acted in lethargy to file the petition beyond limitation
period and, hence, could not advance any sufficient reason nor could explain each day of
delay as was required by law. There is, therefore, no truth or force in the plea that they
only came to know about the decrees on 24-7-1991. The other plea that the Pakistan
Telecommunication Corporation and the General Manager should have been impleaded
in the original suits, does not carry convincing force because the alleged transfer order
was made in favour of Pakiswa Telegraph and Telephone Department through General
Manager, Telephone Region, Lahore and not in favour of Pakistan Telecommunication
Corporation which by the date of transfer i.e.; 20-6-1979 had not yet come into existence
because the Ordinance creating it came in 1990, which was later on brought on the statute
book as Act XIII of 1991. It was admitted by Hafiz Muhammad Abdul Shakoor,
Divisional Engineer as A.W.1 that Telephone Department was under the administrative
control of Ministry of Communication, Government of Pakistan. As such, the original
suits in the name of Federation of Pakistan through Secretary, Ministry of
Communication, Government of Pakistan were rightly instituted and had those `been
instituted in the name of Pakistan Telecommunication Corporation or the General
Manager then it would have in fact violated the Constitutional provisions contained in
Article 174 of the Constitution and the provisions of section 79 read with section 80 of
the Code of Civil Procedure. It is, thus, obvious that there was no legal defect with either
of the suits in the Court below nor it could be proved that the respondents in those cases
were not served. It is also on record that applications under Order 1, Rule 10, C.P.C. were
made by the respective plaintiffs in a suit filed by Muhammad Hussain against the
present respondents i.e.; Telephone Department and as such, they had gained knowledge
about the impugned decrees on 17-6-1991 but they filed the present petitions on
20-7-1991 without showing any sufficient cause for delay beyond 30 days. As such, the
petitions were hopelessly time-barred on that ground as well. The learned trial Judge had
rightly observed that there was no evidence on record to show that the transfer deed in
favour of the plaintiffs/petitioners were bogus or were tainted with fraud,
misrepresentation or collusion. Likewise, there was nothing on record to show that Arif
Butt i.e.; representative of the Board of Revenue was an unauthorised person to make the
statement. On the contrary, he was the Record Keeper and had made his statement from
the record which he had brougt in the Court and had testified that the
petitioners/applicants were the bona fide transferees of the land in question by the
competent Authority. Since they had become owners by virtue of the permanent
transfer-deeds in their favour issued in 1969, therefore, the aforesaid transfer to them
having not been cancelled, the land in question was not available for re-transfer. Hence its
subsequent transfer in favour of the respondent i.e.; Telephone Department on 20-6-1979
was illegal and violative of the proprietary rights of the petitioners/plaintiffs. As such,
there was no merit in the petitions under Order 9; Rule 13 read with section 12(2) of the
Code of Civil Procedure moved by the respondents/defendants and those were rightly
dismissed by the learned Civil Judge but the learned First Appellate Court wrongly and
arbitrarily set aside the ex parte proceedings and also dismissed the suits without taking
into account that the facts in the reported authority of the Supreme Court of Pakistan and
the facts in the case in hand, were totally different from each other. Likewise, the learned
First Appellate Court fell in error to come to the conclusion that Arif Butt was not an
authorised person to make statement in the trial Court. On the contrary, his statement
clearly shows that he was Record Keeper and was authorised to appear in the Court to
represent the department. He had not given the oral evidence based on his memory but
had produced the record from which, he had stated that the plaintiffs/petitioners were
bona fide transferees and had rightly been issued Permanent Transfer Deeds. In such a
situation, holding otherwise, the learned First Appellate Court travelled beyond its
jurisdiction and also misread and misinterpreted the evidence which was brought on
record.
16. In view of my above discussion, both the revision petitions are accepted and the
impugned judgment and decree dated 9-5-1994 passed by the learned Additional District
Judge, Lahore i.e.; the First Appellate Court are set aside in both the cases and the
applications moved by the respondents for setting aside the ex parte decrees under Order
9, Rule 13 read with section 12(2), C.P.C. are dismissed and the orders passed by the
learned Civil Judge on 11 -2-1993 in both the petitions are upheld. Likewise, the
impugned orders dated 14-1-1991, passed by the learned Senior Civil Judge granting ex
parte decrees in both the cases are also upheld. The parties are left to bear their own
expenses throughout.
17. Learned counsel for the petitioners did not press Criminal Original No.68-C of 1994
Mst. Safia Latif v. Federation of Pakistan and Criminal Original No.69-C of 1994 Abdul
Ghani v. Federation of Pakistan and requested for their withdrawal. These are accordingly
disposed of as withdrawn.
A.A./S-109/L Revision accepted
1998 S C M R 858
[Supreme Court of Pakistan]
Present: Muhammad Bashir Jehangiri and Abdur Rehman Khan, JJ.
Mian TAHIR SHAH and another---Petitioners
versus
ADDITIONAL DISTRICT JUDGE, SWABI and others---Respondents
Civil Petition for Leave to Appeal No.298-P of 1997, decided on 11th February, 1998.
(On appeal from the judgment dated 14-3-1997 of the Peshawar High Court,
Peshawar, passed in Writ Petition No. 775 of 1992).
North-West Frontier Province Pre-emption Act (X of 1987)---
----S.13---Transfer of Property Act (IV -of 1882), S.52---Civil Procedure Code (V of
1908), O.IX, R.13 & S.47---Constitution of Pakistan (1973), Art. 185(3)---Lis
pendens, doctrine of---Applicability---Suit for pre-emption filed by plaintiffs was
initially dismissed for non-prosecution but the same was subsequently restored and
decreed---First vendees meanwhile [before restoration of suit for pre-emption] had
transferred land in question in favour of subsequent vendees---Such transfer had
taken place when application for restoration of suit was pending adjudication---
Plaintiff's application for execution was objected to by subsequent vendees on the
ground that plaintiff had made no Talbs in accordance with law---Executing Court,
however, dismissed objection to execution application---Subsequent vendees' revision
and Constitutional petition were also dismissed---Validity---High Court had rightly'
maintained that Constitutional petition was not maintainable, for subsequent vendees
were not aggrieved persons in stricto senso, therefore, they could not invoke
Constitutional jurisdiction of High Court; that they having not challenged ex parte
decree of pre-emption were devoid of any locus standi to raise objection of lack of
Talbs on part of plaintiffs; that under doctrine of lis pendens falling within ambit of
S.52, Transfer of Property Act, 1882, property in question, could not have been
transferred or dealt with by any party so as to affect rights of any other party thereto;
under any decree or order, which could be made therein, during pendency in any
competent Court, of any suit or proceedings which was not collusive and in which
any right of immovable property was directly or specifically in question---First
vendee being party to proceedings was not possessed of any right to alienate property
in question as per mandate of S.52, Transfer of Property Act, 1882---Subsequent sale
in favour of subsequent vendee was, thus, hit by the rule of lis pendens---Leave to
appeal was refused in circumstances.
Mst. Kharo and others v. Sher Afzal alias Sheray 1992 SCMR 1844; Abdul Hamid
and 8 others v. Haji Shabbir Khan and another PLD 1995 SC 649; Permeshari Din v.
Ram Charan and others AIR 1937 PC 260; Chanan Singh v. Waryam Singh and others
AIR 1947 Lah. 175; Muhammad Saddiq v. Ghasi Ram AIR 1946 Lah. 322 and Abdul
Karim v. Kala Khan and another PLD 1987 Azad J&K 139 ref.
Mian Yunus Shah, Senior Advocate Supreme Court instructed by Syed Safdar
Hussain, Advocate-on-Record for Petitioners.
Abdul Samad Khan, Advocate-on-Record for Respondents No.3. (i) to (viii).
Date of hearing: 11th February, 1998 .

JUDGMENT
MUHAMMAD BASHIR JEHANGIRI, J.---Muhammad Anwar, respondent, had
purchased land measuring 3 Kanals 1 Marla 7 Sarsais, on the basis of Mutation
No.7099 sanctioned on 9-10-1983 which was pre-empted by Laiq Zaman (since dead
and represented by respondent No.3(i) to (viii). On 3-12-1996 the suit of the pre-
emptor was dismissed for non-prosecution. Before the restoration, however,
Muhammad-Anwar, first vendee transferred the disputed land in favour of the
petitioners. The suit of Laiq Zaman pre-emptor on restoration was decreed ex parte on
9-5-1987. The deceased decree-holder took out execution proceedings. The
petitioners filed an objection petition under section 47, C.P.C. on 9-2-1989 on the
ground that the pre-emptor having made no 'Talabs' under the law, the suit was not
maintainable but the learned trial Court dismissed it on 23-2-1989. Feeling aggrieved,
the petitioners went in revision petition before the Additional District Judge, Swabi,
which too was dismissed vide order dated 15-4-1992. The petitioners still dissatisfied
filed the Constitutional Petition (W.P. No.775 of 1992). A learned Division Bench
which was seized of the matter observed that the contention of the learned counsel for
the petitioners that after 31-7-1986 no decree could be passed in favour of the pre-
emptor without complying with section 13 of the N.-W.F.P. Pre-emption A9t (X of
1987) was untenable on the two authorities of this Court: (i) Mst. Kharo and others v.
Sher Afzal alias Sheray (1992 SCMR 1844) and (ii) Abdul Hamid and 8 others v. Haji
Shabbir Khan and another (PLD 1995 SC 649). In the two precedents aforesaid,
similar question whether or not requisite 'Talabs' were made and all other conditions
regarding thereto were satisfied were held to be question of fact and that it was open
to the defendant-vendee either to raise or give up the plea regarding Talabs. In the
instant case, the learned Judges observed that at the time of ex parte decree in the pre-
emption suit neither the petitioners applied for setting aside the ex parte decree nor
they had preferred any appeal against it. According to the learned Judges, the
petitioners were even absent at the time of passing of ex parte decree and, therefore,
they were not allowed to raise this plea for the first time in the executing Court. The
second plea of the petitioners was also not entertained on the ground that the
mutations in question were the result of collusion between the petitioners on the one
hand and the defendant-vendee in the suit on the other. The learned Judges further
observed that the contesting defendant had not resisted the claim of the plaintiff pre-
emptor and that in the first instance he entered the mutation in the names of the
petitioners during the pendency of the suit and managed to get the suit dismissed in
default and then absented himself on the date of ex parte decree and thus the plaintiff
was kept in dark "of all the misdeeds collusively". The learned Judges noticed that
even after the ex parte decree neither any application under Order IX, rule 13 of the
Civil Procedure Code nor any appeal was filed. The petitioners, according to them,
were waiting for execution proceedings to dilute the effect of the decree. Lastly, it
was observed that seeking relief in writ petition was not a right but it was
discretionary which could not be granted to a person who was guilty of collusion to
deprive others of their legal rights. In this view of the matter, the findings of the two
Courts below that the objections of the petitioners were not tenable and, therefore,
they were not held entitled to any relief under Article 199 of the Constitution were
held to be well-founded.
2. Mian Yunus Shah, learned Senior Advocate Supreme Court, representing the
petitioners invited our attention to the law laid down by the two old authorities of the
pre-partition era which he had also cited before the High Court, namely, Parmeshari
Din v. Ram Charan and others (AIR 1937 PC 260) and (ii) Chanan Singh v. Waryam
Singh and ,others (AIR 1947 Lahore 175) and contended that the word 'representative'
employed in section 47, C.P.C. is wider than the term 'legal representative' and
included a 'transferee'. This contention was repelled by the learned Division Bench
holding that in both the judgments referred to them, "the decree-holder could proceed
against the transferee under the judgment-debtor". In this context, the counter-
arguments of the learned counsel for the respondents were that, even if for the sake of
arguments, it was admitted that the suit land had been validly transferred during the
execution proceedings, the vendees/objectors had stepped into the shoes of judgment-
debtor.
3. Another argument of the learned counsel for the petitioner which was reiterated
before us and had been conceded by the learned counsel for the respondents before
the learned Division Bench was that the principle contained in section 52 of the
Transfer of Property Act, 1882, namely, lis pendens covers not only the suit while the
explanation added to the section 52 ante completely covers proceedings before the
final decree or order. Reference was made to an old authority from Lahore
jurisdiction in the case of Muhammad Saddiq v. Ghasi Ram (AIR 1946 Lahore 322).
The learned Division Bench then noticed that the application for restoration of the
suit was brought on the day when it was dismissed for non-prosecution on 3-12-1986;
the mutation in favour of the petitioner had been entered during the pendency of suit
on 17-11-1986 and 1-12-1986. Respondent No.3 immediately applied for the
restoration of the suit and thus the proceedings for the restoration of the suit were in
process even on 7-12-1986 when the impugned mutations were sanctioned. It was,
therefore, held by the High Court that the questioned Mutations Nos.7808 and 78.10
had been entered during the pendency of the suit and were sanctioned pending the
restoration proceedings, therefore, under the principle of lis pendens no right or title
could possibly be transferred to the petitioners. In this view of the matter, the learned
Division Bench in the High Court found the impugned order passed by the two Courts
below warranting no interference in exercise of the Constitutional jurisdiction.
Finding no illegality or material irregularity in the said order the writ petition, as
stated earlier, was accordingly dismissed with costs.
4. After going through the impugned judgment of the High Court, we find that the
reasoning that found favour with the learned Judges was not such which. could be
termed to be improper or not sustainable on the settled principles regulating the grant
or refusal of relief in the Constitutional jurisdiction of the: High Court. On merits, we,
therefore, concur with the finding of the High Court that the writ petition was not
maintainable as the petitioners were not aggrieved p, persons in stricto senso,
therefore, they could not invoke the Constitutional jurisdiction in the High Court; that
on the parity of the reasons aforesaid, the petitioners were devoid of any locus standi
to raise the objection of lack of requisite 'Talabs' on the part of the pre-
emptors/respondents; that the mutation in question sanctioned in favour of the
petitioners was the outcome of collusion between them and the defendant-vendee in
the suit; that grant of relief in Constitutional jurisdiction was discretionary which
could not be granted to a person who was guilty of collusion in order to deprive
others of their legal rights. ,
5. Under the doctrine of lis pendens falling within the ambit of section 52 of the
Transfer of Property Act (IV of 1882), the property could not be transferred or
otherwise dealt with by any party so as to affect the rights of any other party thereto
under any decree or order which may be made therein, during the pendency, in any
competent Court, of any suit or proceedings which is not collusive and in which any
right of immovable property is directly and specifically is in question. In Abdul
Karim v. Kala Khan and another (PLD 1987 Azad J&K 139), the definition of term
'proceeding' was held to include an application for restoration of a suit which related
to the immovable property to which prior right of purchase (right of pre-emption) is
directly and specifically in dispute. The first vendee being a party to the proceedings
was not possessed of any right to alienate the land the subject of dispute, as laid down
under section 52 of the Transfer of Property Act. The finding of the learned District
Judge as per the case of Abdul Karim (supra) was affirmed that in the presence of the
pendency of the application for restoration of the suit, the subsequent transaction of
sale in favour oh Abdul Karim petitioner therein was held to be hit by the rule of lis
pendens.
6. After going through the facts of the case in Abdul Karim (supra) we are inclined to
approve the principle enunciated therein.
7. In this view of the matter, this petition is without substance and is, therefore,
dismissed accordingly.
A.A./T-2/S Petition
dismissed.
2007 C L C 1865

[Lahore]

Before Syed Asghar Haider and Maulvi Anwarul Haq, JJ

Mst. SAKINA BEGUM and 21 others----Appellants

Versus

KHALID MUSTAFA and 11 others----Respondents

Intro-Court Appeal No.42 of 2006, heard on 5th September, 2007.

Law Reforms Ordinance (XII of 1972)---

----S. 3(2)---Civil Procedure Code (V of 1908), S.12 (2) read with O.IX, R.13---Ex parte
judgment passed in constitutional petition---Miscellaneous application purportedly filed
under S.12(2) C.P.C. read with O.XLI, R.21. C.P.C. for setting aside ex parte judgment
was dismissed for the reason that since intro-court appeal was filed against judgment and
same having been dismissed, application under S.12(2) C.P.C. could be competently filed
only before said appellate forum---Intra-court appeal---Competency---Record showed
that infra-court appeal. was dismissed on a short ground that appellants had no locus
standi to file the same whereas merits of impugned judgment were not referred to at all---
Doctrine of merger, in circumstances, would not be applicable and an application under
S.12(2), C.P.C. was competent before the original Court---Civil miscellaneous, to all
intents and. purposes, being an application for setting aside an ex parte judgment prayer
for a rehearing on the grounds stated therein within the meaning of O.IX, R.13, C. P. C.
was applicable to constitutional proceedings and said application was accordingly to be
treated as such---Contention that order having been passed in a miscellaneous
application, could not be said to have been passed in exercise of original jurisdiction and
as such intra-court appeal was not competent, vas 'repelled as the impugned order had
been passed by the Single Judge in exercise of the .jurisdiction vesting under Art.199 of
the Constitution---Such was also not an interim order. as the said application for grant of
said substantive prayer stood decided finally---hits-court appeal was therefore
competent.

Maqsood Ahmed Siddiqui v. Nisar Ahmed and others 2003 SCMR 1522 and Amin-ud-
Din Khan v. Water and Power Development Authority and others 2004 CLC 382
distinguished.

Muhammad Asif Bhltti for Appellants.

A.R. Shaukat for Respondents.

Date of hearing: 5th September, 2007.


JUDGMENT

MAULVI ANWARUL HAQ, J.--- This hits-Court appeal proceeds against order dated
14-11-2005 passed by a learned Single Judge, in Chambers, of this Court, whereby
C.M.No.2297 of 2004 filed by the appellants for sating aside of judgment dated 9-7-2002
passed in Writ Petition No.117/R of 1998 has been dismissed.

2. Learned counsel for the appellants contends that the impugned judgment fails to take
note of the entire contents of the said C.M. which, in fact, was filed for setting aside of an
ex parse judgment primarily on the ground that the appellants had not been served in the
case. Learned counsel for the contesting respondents, on the other hand, argues that the
order having been passed in a miscellaneous application cannot be said to have been
passed in exercise of original jurisdiction and as such the infra-court appeal is not
competent. He relies on the cases of Maqsood Ahmed Siddiqui v. Nisar Ahmed and
others 2003 SCMR 1522, and Amin-ud-Din Khan v. Water and Power Development
Authority and others 2004 CLC 382.

3. We have gone through the writ petition records, with the assistance of the learned
counsel for the parties. The appellants before us are stated to be the L.RS. of Muhammad
Siddique and Muhammad Sardar who were impleaded as respondents Nos.4 and 5
respectively in the writ petition filed by contesting respondents Nos. 1 to 7. The writ
petition was heard on 9-7-2002 and the judgment of the even date narrates that the said
predecessors of the appellants had been proceeded against ex parte as none had appeared
on their behalf despite an intimation to their learned counsel practising at Kasur. On 12-7-
2004 C.M. No.2297 of 2004 was filed by the appellants for rehearing of the writ petition.
The application was purportedly filed wider section 12(2), C.P.C. read with Order XLI,
Rule 21, C.P.C. for setting aside the ex parte judgment. It was dismissed vide the
impugned order for the reason that since an infra-court appeal was filed against the said
judgment and the same having been dismissed, the application under section 12(2),
C.P.C. could be competently filed only before the said appellate forum.

4. Learned counsel for the appellants has filed a certified copy of order dated 15-1-2003
passed in Infra-Court Appeal No.620 of 2002 filed by the respondents Nos.1 to 3 and 7 in
the writ petition. We have examined the same and found that the infra-court appeal was
dismissed on a short ground that the said appellants had no locus standi to file the same.
The merits of the judgment were not referred to at all. To our mind, in the said
circumstances the doctrine of merger would not be applicable and an application under
Section 12(2), C.P.C. was competent before the original Court.

5. We have also examined the said application filed by the appellants and we find that for
all intents and purposes it was an application for setting aside of the ex parte judgment
and prayed for a re-hearing on the grounds stated therein within the meaning of Order IX,
rule 13, C.P.C. which provision is applicable to writ proceedings. The application is
accordingly to be treated as such.
6. So far as the said contention of Mr. A.R. Shaukat, Advocate, is concerned, the same is
not tenable at all. Present Infra-court appeal is governed by section 3(2) of the Law
Reforms Ordinance; 1972. For all purposes the impugned order has been passed by the
learned Single Judge in exercise of the jurisdiction vesting under Article 199 of the
Constitution while deciding an application containing the said prayer vis-a-vis a
judgment pronounced under the said provision of law. It is also not an interim order as
the said application for grant of the said substantive prayer .stands decided finally. The
judgments cited by the learned counsel as noted are not at all attracted to the facts of the
present case. In the said case of Maqsood Ahmed Siddiqui, Infra-court appeal filed
against an order passed by this Court dismissing an application under section 12(2),
C.P.C. for setting aside of a judgment passed in exercise of appellate jurisdiction under
section 96, C.P.C. was held to be not maintainable while in the said case of Amin-ud-Din
Khan, the intra-court appeal was not held maintainable as the appellant had availed a
remedy of review against the judgment impugned.

7. This Intra-court appeal is accordingly allowed. The result would be that C.M. No.2297
of 2004 shall be deemed to be pending and decided accordingly in the light of the
observations made above. No orders as to costs.

F.B./5-149/L Appeal allowed.

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