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PLJ 2012 Lahore 54

Present: Muhammad Ameer Bhatti, J.

KH. UMAR MEHDI, COLLECTOR MODEL CUSTOMS COLLECTORATE, LAHORE--


Petitioner

versus

FEDERAL BOARD OF REVENUE through its Chairman Islamabad and 2 others--Respondents

W.P. No. 3341 of 2011, heard on 28.10.2011.

Accommodation Allocation Rules, 2002--

----R. 2--Civil Servants Act, 1973, S. 25(1)--No statutory implication--Lost right of seniority--
Repatriated to his parent department--Allotment to residential accommodation--Challenged on
ground of malafide and violation of list of accommodation--Question of--Whether
accommodation allocation rules were statutory or not--Even if rules were not applicable, no
officer can be permitted to apply for accommodation--Validity--Petitioner applied for
accommodation in year 1998 and his name was at Serial No. 1 but thereafter, he joined other
department on deputation and possessed other accommodation in year 1999 and remained there
till 2009--So, till 2009, he had accommodation could not be considered for preferential allotment
of any accommodation and by that time, he could not be allotted another accommodation. [P. 58]
B

Constitution of Pakistan, 1973--

----Art. 199--Accommodation Allocation Rules, 2002, R. 2--Civil Servants Act, 1973, S. 25(1)--
No statutory implication--Having statutory status were fully applicable to allotment of
accommodation--Question of--Whether rules were statutory or not--Maintainability of
Constitutional petition--F.B.R. by applying these rules declared petitioner at bottom of list, was
against fundamental rights, was not tenable hence he could not avail remedy of constitutional
petition, as there was no violation of any statutory rules or regulations framed under law where no
statutory right had been infringed on by any authority, then constitutional petition was not
maintainable. [P. 57] A

Accommodation Allocation Rules, 2002--

----S. 2--Civil Servants Act, 1973--S. 25(1)--Constitution of Pakistan, 1973, Art. 199--
Constitutional petition--Accommodation under new posting--Applicability of rules--Joining
department on deputation--Lost right of seniority--Repatriated to parent department--Allotment of
residential accommodation--Validity the moment obtained another accommodation under new
posting--Deleted the name from list of applicants--Validity--Name of the petitioner would had
been deleted from list of applicants after obtaining accommodation under new posting--
Accommodation Allocation Rules, even if not applicable, but natural justice demanded that he
could not be considered after availing choice of one accommodation as one officer was entitled to
and can retain single accommodation at a time--Violation of rules or passing any order on basis of
their own settled principle cannot be challenged through a writ petition, as question of fact cannot
be resolved through constitutional petition. [P. 58] C & D

Accommodation Allocation Rules, 2002--

----R. 2--Delay of six months--No cause of action or locus standi--Maintainability of C.M. filed
by collector--Accommodations were meant only for families and not for singles--Validity--Being
a single, her case was not worth consideration--Application had been moved by applicant after an
inordinate delay of six months during pendency of the instant writ petition and she had not
challenged orders of allotment--Neither a cause of action or locus standi to be impleaded. [P. 59]
E

Ch. Muhammad Iqbal, Advocate for Petitioner.

Mr. Akhtar Javed, Advocate for Respondent.

Mr. Sarfraz Ahmad Cheema, Advocate for Respondents No. 1 and 2.

Malik Abdullah Raza, Advocate in C.M. No. 1905-11.


Page No. 1 of 3
Date of hearing: 28.10.2011.

Judgment

Through this constitutional petition, the minutes of meeting dated 13.12.2010 and subsequent
orders/decisions dated 27.12.2010 and 08.02.2011 passed by the Respondent No. 1 have been
called in question being illegal, void ab anitio, mala fide having no legal effects in the eye of law
and against the principle of natural justice.

2. The brief facts of the case gathered from the pro and contra averments of the parties are that
the present petitioner was earlier serving on deputation in BPS-19 in the Civil Services Academy,
Lahore. After his promotion in BPS-20, he was repatriated to his parent department. The claim of
the petitioner is that he is at the top of seniority list (at Serial No. 1) prepared for the allotment of
residential accommodation and instead of making the allotment to the petitioner, Respondent No.
3 (at Serial No. 5 in this list) has been allotment committee, which maintained the same vide
order dated 13.12.2010, however, referred the matter to the Board/Respondent No. 1, where the
petitioner made another representation on 30.12.2010, however, the Board upheld the decision of
the Committee vide order dated 08.02.2011. It will not be out of place to mention here that earlier
the Board on the advice sought by the Committee also delivered the guidelines to the Committee
vide his letter dated 27.12.2010. These all acts and decisions have been challenged through this
writ petition on the ground of mala fide and violation of the list of accommodation prepared by
the respondents themselves.

3. The learned counsel for the petitioner contends that the accommodation rules have neither
been prepared by the department nor these are applicable in the case of the petitioner, hence the
application of these rules in the case of accommodation of the petitioner is unjustified and
without any lawful authority. Since the petitioner has been discriminated on the basis of liking
and disliking, the act of the respondents has breached the fundamental rights of the petitioner.
Further contends that since the rules of accommodation having no relevancy, the posting on
deputation does not make any difference. The moment he rejoined the department, he attained the
same seniority as it was before the deputation. Further contends that neither the accommodation
rules having the statutory status nor the allotment of accommodation falls within the ambit of
terms and conditions of the service rules. Respondents No. 1 & 2 took the stand in their report
and parawise comments for allotment of official residential accommodation of MPR,
Accommodation Allocation Rules 2002 of Ministry of Housing are being applied by the allotment
committee of field formation. Further in reply to the paras it has been admitted that the name of
the petitioner was on the top of the general waiting list, however added that since the petitioner
was working in BPS-19, was posted to Civil Services Academy, Lahore on deputation where he
was allotted Government accommodation, hence has lost the seniority on the general waiting list
and was not found eligible at the time of allotment of the vacant accommodation. They fully
supported their orders/ decisions which have been challenged through this constitutional petition
with the prayer that the petition is not maintainable and may be dismissed.

4. Learned counsel for the Respondent No. 3 contends that the petitioner after joining the
department on deputation, lost the right of, seniority (his place in queue) according to the
Accommodation Allocation Rules, 2002. Learned counsel further contends that on the one hand
the petitioner laid his claim on the basis of list which has been prepared according to the
Accommodation Allocation Rules, 2002 but on the other hand, the other rules which take away
the right of the person joining any department on deputation and obtain the accommodation in
that borrowing department. Learned counsel for the respondent contends that the rules have been
framed in exercise of the powers conferred by sub-section (1) of Section 25 of Civil Servants Act,
1973, hence having statutory status, are fully applicable to the allotment of the accommodation in
the case of the petitioner and the respondent.

5. I have heard the learned counsel for the parties at length.

6. Without disputing and declaring whether the rules are statutory or not, one thing is clear that
the rules referred by the respondents "Accommodation Allocation Rules 2002" in view of Section
2:

(a) "accommodation" means residential accommodation including a house or flat owned,


hired or requisitioned by Government and placed on the pool of the Estate Office.

In view of this definition, it is not deniable on behalf of the parties that neither the
accommodation in dispute is on the pool of the Estate Officer nor these rules have been adopted,
hence the said Accommodation Allocation Rules, 2002 apparently having no implication. Except
these rules, no other rules have been referred by any of the parties so it is clear that these rules

Page No. 2 of 3
may have been used by the department for seeking guidance but it has no statutory implication.
So far as the case of the petitioner is concerned, that the respondents by applying these rules
declared the petitioner at the bottom of the list, is against his fundamental rights, is not tenable,
hence he cannot avail the remedy of the constitutional petition, as there is no violation of any
statutory rules or regulations framed under the law where no statutory right has been infringed on
by any authority, then the constitutional petition is not maintainable.

7. According to the rules, the list has been prepared with the date of demand/requisition and
allotment has been made accordingly but if any of officer avails the chance of deputation and he
has been allotted accommodation accordingly, then after releasing that place of posting, he can
again apply for allotment but this requisition would be computed afresh because the moment he
obtained the accommodation under his posting (whether on deputation), he lost the right of
second accommodation. Even if the rules are not applicable, no officer can be permitted to apply
for accommodation and at the same time retain the other allotment intact. In the case in hand, the
petitioner applied for accommodation in the year 1998 and his name was at serial number 1 but
thereafter, he joined the other department on deputation and possessed other accommodation in
the year 1999 and remained there till 2009. So till 2009, he had accommodation so he could not
be considered for preferential allotment of any accommodation and by that time, he could not be
allotted another accommodation. Logically, his name could not be considered on the basis of
earlier requisition as it loses its validity the moment he obtained another accommodation under
his new posting. His name should have been deleted from the list of applicants after obtaining the
accommodation under new posting. The rules even if not applicable, but natural justice demands
that he could not be considered after availing choice of one accommodation as one officer is
entitled to and can retain single accommodation at a time.

8. It is not disputed that the petitioner availed the accommodation during his posting at
Islamabad so after relieving from that post, he has to apply afresh and his requisition can only be
considered after providing the chance to others, who had applied before him. Viewed in this
perspective, after his posting/accommodation on deputation, the petitioner lost his 1st place in the
array (seniority list) and his right of accommodation stood consequentially vitiated, thus leaving
the other officers in the list entitled to preferential allotment of accommodation in sequential
order.

9. The authorities while passing any order for allotment of any accommodation, although
performing their duties according to the guidelines provided in the rules, but violation of rules or
passing any order on the basis of their own settled principle cannot be challenged through a writ
petition, as a disputed question of facts cannot be resolved through the constitutional petition, as
apparently some disputed questions of facts are involved as to what was the intention of the
authority and it was according to their principle or not, need recording of evidence and this
Constitutional Court always avoided to exercise the power where the disputed question of facts
are involved and needed recording of evidence.

10. So far the CM. No. 1905/2011 filed by Ms. Rukhsana Yasmin, Collector is concerned, it is
not maintainable on the ground that accommodations are meant only for families and not for
singles. Being a single, her case is not worth consideration. Even otherwise, this application bas
been moved by the applicant after an inordinate delay of six months during pendency of this writ
petition and she has not challenged the orders of allotment. Hence she has neither a cause of
action or locus standi to be impleaded as a party.

11. What has been discussed above, this petition has no merits, dismissed accordingly. No order
as to costs.

(R.A.) Petition dismissed.

Page No. 3 of 3
PLJ 2012 Peshawar 46 (DB)

Present: Shah Jahan Khan and Syed Sajjad Hassan Shah, JJ.

ZAHIR HUSSAIN and 4 others--Petitioners

versus

BASHIR MUHAMMAD and 5 others--Respondents

W.P. No. 1969 of 2010, decided on 29.9.2011.

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

----S. 9--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Restoration of


possession--Bulk of documentary and oral evidence available on record--Courts below had not
adverted to, while deciding lis pending before them--Sough decree for issuing perpetual
injunction and mesne profit with relief of restoration of possession--Contention--Suit was not
maintainable on account of defect of misjoinder of cause of action--No material available on
record to warrant impugned judgment sheer mis-reading and non-reading of evidence--Duty of
Courts below to attend facts of case--Validity--Plaintiff must proved that he was in possession of
the suit property and he had been dispossessed by defendant otherwise, than in due course of law,
which dispossession took place within six months of filing of the suit--No question of title can be
raised or looked into in a case filed u/S. 9, Specific Relief Act--Judgments and decrees of Courts
below were passed in sheer violation of law and material available, hence, committed gross
illegality and irregularity while deciding matter before them--Petition was accepted. [Pp. 49
& 55] A & H

Interested and Partisan Witness--

----Dispossession from suit property--Mere allegation was that suit property remained in
possession of plaintiff for three years--Statement was not of any avail to the case of plaintiffs, as
he had not disclosed exact date and month of their dispossessed however, his ambiguous
statement would not absolve plaintiffs from their liability to discharge burden of proof. [P. 51]
B

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

----S. 9--Forceful dispossession--Reference to Roznamcha Waqiyati without specifying any date


or period of dispossession from suit property--Necessary corollary of resume of facts--Neither
possession nor dispossession of plaintiffs was proved by means of independent, disinterested and
impartial amount of evidence--Case of no evidence--Validity--Date of possession and
dispossession was not mentioned in plaint and refusal of defendants to restore possession to
plaintiffs as such period of limitation was not discernible from averments made in plaint--
Documentary evidence did not support stance of plaintiffs--Plaintiffs had not succeeded in
proving their case against defendants in accordance with law. [Pp. 51 & 52] C & D

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

----S. 9--Civil Procedure Code, (V of 1908), S. 115--Dispossession from suit property--Essential


pre-requisite of limitation--Plea of limitation was raised in written statement--No issue was
framed by trial Court--Judgment was violatary to law--Question of limitation can be considered
by Court itself--Whether it was pleaded or not by parties--Waiver by Court of question of
limitation was not permissible--Validity wrong decision on limitation will not debar High Court
for reversing the decision as it was within its power and jurisdiction u/S. 115, CPC to suo moto
take-up for consideration question of limitation. [P. 52] E

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

----S. 115--Revisional power of High Court--Findings of trial Court--Where material illegality or


irregularity committed by trial Court, revisional Court has ample powers to reverse findings of
trial Court while exercising power u/S. 115, CPC. [P. 53] F

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

Page No. 1 of 6
----O. VI, R. 16 & O. 11, R. 6--Specific Relief Act, 1877, Ss. 8 and 9--Strike out pleadings--
Cause of action enjoined in one suit cannot be tried--Right or legal character of claimant or mesne
profit--Court was not required to enter or adjudicate title, right or legal character of claiming
possession--Validity--If a suit seeking restoration of possession u/S. 9 of Act, 1877, together,
Civil Court while exercising power under Order VI, Rule 6 of CPC strike out pleadings, which
were unnecessary and causes delay in fair trial or where it appears to Court in terms of Order XI
Rule 6 of CPC that any cause of action enjoined in one suit cannot be tried. [P. 54] G

AIR 1973 Sindh, 161.

Mr. Khan Hussain, Advocate for Petitioners.

Mr. Muhammad Humoyun, Advocate for Respondents.

Date of hearing: 21.9.2011.

Judgment

Syed Sajjad Hassan Shah, J.--Zahir Hussain and four others, the petitioners by invoking the
constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic
of Pakistan called in question the judgment and decree dated 26.06.2009 passed by the learned
Additional District Judge-III, Swabi, whereby, the appeal filed against the judgment and decree
dated 28.10.2009 passed by the learned Civil Judge-VII, Swabi was dismissed.

2. The brief facts germane for the disposal of the instant petition are that the respondents-
plaintiffs (hereinafter to be referred as respondents) filed a suit seeking the restoration of
possession under Section 9 of the Specific Relief Act, 1877, and prayed for the recovery of mesne
profits in respect of the property fully detailed in the heading of the plaint.

3. The suit was contested by the petitioners-defendants (hereinafter to be referred as petitioners)


by filing their written statements. The learned trial Court framed issues arising out of the
divergent pleas of the parties raised in their respective pleadings. The respondents have produced
their entire evidence, whereas, petitioners have been proceeded under Order XVII Rule 3 CPC
and their defence was struck off on 13.05.2009. After recording of above evidence and hearing
arguments addressed by the learned counsel for the parties, the learned Trial Court decreed the
suit of the respondents. Feeling aggrieved of the impugned judgment and decree, the petitioners
filed an appeal, which also met the same fate, hence, the present petition is filed for setting aside
the concurrent judgments and decrees of the Courts below and prayed for the dismissal of the suit
filed by the respondents.

4. The learned counsel appearing on behalf of the petitioners contended that the learned Courts
below have failed to attend the important aspect of the case that the respondents have not proved
that their suit is filed within the period of limitation. Because the said ground agitated in the
written statement, but no issue has been framed, however, in this regard, the learned trial Court
returned its findings but in cursory and slipshod manner. He further contended that the
respondents have also sought the decree for issuing the perpetual injunction and mesne profit
together with the relief of restoration of possession under Section 9 of the Act ibid. According to
the learned counsel, the suit of the respondents was also not maintainable on account of defect of
misjoinder of causes of action. He argued that except the statement of two interested and related
witnesses, no material available on record to warrant the impugned judgments and decrees in
favour of the respondents. He further contended that this is the case of sheer misreading and non-
reading of evidence and both the learned Courts below have bypassed the provisions of law, thus,
committed material illegality and irregularity while exercising jurisdiction in the matter, because
it was the legal duty of the learned Courts below to attend the facts of case, the available evidence
and the law applicable thereto, but the learned Courts below passed the impugned judgments and
decrees in haphazard manner, which is not sustainable under the law and liable to be set-aside.

5. As against that, the learned counsel for the respondents supported the judgments and decrees
passed by the learned Courts below and contended that there is no material illegality or
irregularity committed by the learned Courts below and the impugned judgments and decrees
passed in accordance with law and not suffering from any jurisdictional error, which does not
require any interference by this Court.

6. Arguments of the learned counsel for the parties considered and record carefully perused.

7. A perusal of the record reveals that a bulk of documentary and oral evidence available on the
record, but both the learned Courts below have not adverted to, while deciding the lis pending
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before them. Had the entire documentary and oral evidence been considered in its letter & spirit,
it might have impact on ultimate decision of the case. In this regard, it is pertinent to mention
here that while deciding the suit under Section 9 of the Specific Relief Act, 1877, the following
pre-requisites must be considered for arriving at lawful conclusion:--

(i) That the person suing must have been dispossessed;

(ii) That such dispossession must be of immoveable property;

(iii) That such dispossession should be without consent and should be otherwise than in due
course of law;

(iv) That the suit is to be brought within a period of six months from the date of
dispossession.

8. In order to succeed in the suit filed under Section 9 of Act ibid, the plaintiff must prove that he
was in possession of the suit property and he has been dispossessed by the defendant otherwise
than in due course of law, which dispossession took place within six months of filing of the suit.
No question of title can be raised or looked into in a case filed under Section 9 of the Act ibid.
To substantiate the above mentioned aspects of the case, we have scanned the record of the case
with care and caution.

9. The respondents in Para-1 of their plaint stated that today is the third day of their forcible
dispossession by the petitioners from the suit property measuring 7 kanal 5 marla. In this regard,
it is pertinent to refer here the record of rights pertaining to the year 1994-95 (Ex.PW-2/1) in
respect of suit Khasra i.e. 2397 measuring 7 kanal & 5 marla, a number of co-owners recorded in
the ownership column and one Abdul Aziz Khan is shown in its possession, however, as per the
entries of Mutation No. 54 the suit Khasra has been partitioned. Resultantly, Khasra No. 2397/1
measuring 2 kanal 5 marla allotted to Asadullah Jan, etc the owners, Khasra No. 2397/2
measuring 5 kanal allotted to Abdul Aziz Khan as his share. Thereafter, the same entries are
repeated in the revenue record, produced as Ex.ADW-1/3 to Ex.ADW-1/4.

10. As it is evident from the above referred revenue record that the suit Khasra number has been
partitioned as mentioned above. Despite its partition, the respondents preferred their claim over
the entire Khasra number, to which they have no legal right as the possession even over 5 kanal of
land is no where recorded in the revenue record in the name of the respondents.

11. The pivotal question involved in the instant case is that as to whether the respondents have
proved their possession and thereafter dispossession from the suit property. In this connection, the
respondents in Para-1 of the plaint stated that today is the third day of their dispossession from
the suit property. In support, whereof, PW-1 Mujeeb-ur-Rehman, FC, PS Swabi was examined,
who brought on record Mad No. 26, dated 14.10.1997 (Ex.PW-1/1) in Roznamcha maintained in
the PS. During the course of cross-examination, in reply to a question that any action initiated in
respect of the report ibid, he expressed his ignorance. Even otherwise nothing brought on record
to show that according to the allegations levelled in the said report, the action has been taken
against the persons charged in the said report, which speaks volume about the matter in issue.

12. A careful perusal of the above referred material transpires that the property mentioned therein
is stated to be 8 kanal and it is alleged that Zahir Hussain Shah and two others intended to take
over the possession of the suit property. It is not expressly and in unequivocal words stated in the
report that the respondents are in possession of the suit property and they have been forcibly
dispossessed by the petitioners. Furthermore, the lodger of the report Nazir Muhammad Khan did
not appear before the Court in order to testify that he has reported the occurrence, thus, to stand
the test of cross-examination regarding the matters mentioned therein. In absence, whereof, the
respondents have failed to prove the same in accordance with requirement prescribed under the
law, which document is not of worth consideration. In this regard, the reference is made of
Khasra Girdawari (Ex.PW-2/2) produced by the respondents, wherein, the claim of the
respondents is totally appears to have negated. Here it is not out of place to mention that the
respondents would suffer the consequences arising out of the document which they have
produced. It is mentioned in Khasra Girdawari for the year Rabbi 1998 that one Hawaldar Quresh
Khan son of Zardad is in possession of the suit Khasra number on payment of half of the produce
on behalf of Zahir Hussain and others. Similarly, entries made in rest of the columns of said
Khasra Girdawari till Rabbi 2000, which do not support the case of respondents as the property is
shown in possession of the tenant, who is cultivating on behalf of the petitioners.

13. Amongst the witnesses examined on behalf of the respondents, one Miskeen (PW-4) who is
father in law of the respondents, thus, interested and partisan witness. He did not depose about the

Page No. 3 of 6
period of alleged dispossession of respondents from the suit property. His mere allegation is that
the suit property remained in possession of the respondents for three years, whereafter, Zahir
Hussain and others took over the possession of the suit property. This statement is not of any avail
to the case of the respondents, as he has not disclosed the exact date and month of their
dispossession, however, his ambiguous statement would not absolve the respondents from their
liability to discharge the burden of proof.

14. Sher Muhammad, was examined as PW-4, who testified about their forceful dispossession by
the petitioners with reference to Roznamcha Waqiyati (Ex.PW-1/2) without specifying any date or
period of their dispossession from the suit property. Besides, the witness namely Faisal Aziz son
of Abdul Aziz Khan was examined as PW-4, the case of the respondents has not been supported
by the deposition of this witness, as the real owner of the property, who allegedly delivered the
possession to the respondents had to appear in support of their case. The examination of his son
namely Faisal Aziz, attorney is not sufficient proof of the facts for the reason that Abdul Aziz
Khan is alive but he did not opt to appear as witness on behalf of the respondents to support the
delivery of possession to them. However, his statement would also not worth consideration
because even if he would be examined, his statement would not be beneficial to the case of the
respondents, because he has been allegedly transferred the suit property through oral sale
agreement, thus, parted with the interest in the suit property and his statement would not be
admissible and considered as a valid piece of evidence in favour of the respondents.

15. The necessary corollary of the above resume of the facts is that neither the possession nor
dispossession of the respondents is proved by means of independent, disinterested and impartial
amount of evidence, rather this is the case of no evidence. Moreso, the date of possession and
dispossession is not mentioned in the plaint and also the refusal of the petitioners to restore the
possession to the respondents, as such the period of limitation is not discernible from the
averments made in the plaint. The documentary evidence also does not support the stance of the
respondents. The above referred important aspect of the case over-looked by both the Courts
below. As such, the respondents have not succeeded in proving their case against the petitioners
in accordance with law.

16. It is not out of place to mention here that the limitation is one of the essential pre-requisite as
prescribed under Section 9 of the Act ibid. In the instant case, the plea of limitation raised in the
written statement but the learned trial Court has not framed any issue, however, the respondents
have produced all the available evidence in the light of their pleadings without feeling any
difficulty while proceeding with the case. The learned trial Court has decided the question of
limitation, which decision is neither in consonance with the requirements of law nor considered in
the light of record of case, thus, the judgment and decree passed by the learned trial Court is
violatary to the law and material on the record. It was imperative for the learned trial Court to
give its reasonings and justification in support of its findings, however, the learned trial Court has
not considered the same. The question of limitation can be considered by the Court itself whether
it is pleaded or not by the parties to the suit, because a waiver by Court of question of limitation is
not permissible even where the period of limitation is prescribed by a Special or Local Law. Thus,
a wrong decision on limitation will not debar the High Court for reversing the said decision as it
is within its power and jurisdiction under Section 115 CPC to suo moto take-up for consideration
the question of limitation, if the material available on record is sufficient to establish that the suit
filed after the expiry of the limitation. Reliance placed on case titled "The Manager, Jammu and
Kashmir State Property versus Khuda Yar (PLD 1975 SC 678):

"The scope of the revisional power of the High Court is subjected to the conditions where in case
the jurisdiction exercised excessively, failure to exercise jurisdiction, illegal exercise of
jurisdiction is nevertheless very vast and to correspond a remedy and infact the jurisdiction can be
exercised firstly, which are discretionary in nature may be invoked by the Court in suo moto and
secondly, the Court may make such order in case it thinks fit."

17. In this regard, further relied on case titled Noor Muhammad versus Abdul Hamid (1984 CLC
23), wherein, it is observed that "However, plea of limitation can be allowed to be raised even as
the revisional stage if on admitted facts, a case of limitation is made out".

18. Similarly in another case titled Umar versus Afridai and Others (PLD 1954 Peshawar 96),
wherein, it is held that "The question of limitation may be one of fact or of law; if former the
Court is not bound to go into it unless raised by the parties, and if latter the Court is as a general
rule bound to raise and decide it, although not raised by the parties. Applying this principle to the
case now before me, the question of limitation involved was a mixed question of law and fact.
The lower Appellate Court in order to apply Article 120 of the Limitation Act, had to determine
the date from which limitation had to start. He had to come to a definite finding as to whether the
plaintiff was in possession of the property in suit or not."

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19. It is also observed in case Wazir Ahmed through Legal Heirs versus Naseem-ur-Rehman
through Legal Heirs (2002 MLD 645) that:

"In a suit brought under the abovementioned Section 9 the plaintiff who has been dispossessed is
entitled to succeed merely by proving that (1) he was in possession of the immoveable property in
suit; (2) that he had been dispossessed by the defendants; (3) that the dispossession was not in
accordance with the law and (4) that the dispossession took place within six months of the filing
of the suit, meaning thereby of the aforesaid provision of law has four ingredients which are as
under:--

(i) The person suing must have been dispossessed;

(ii) Such dispossession must be of immoveable property;

(iii) The dispossession should be without his consent;

(iv) Dispossession should be otherwise than in due course of law.

20. In the same judgment, it is further observed in paragraph-10 regarding exercise of revisional
power of High Court where the material illegality or irregularity committed by the trial Court, the
Revisional Court has ample powers to reverse the findings of trial Court while exercising the
powers under Section 115 CPC. The observations are reproduced as under:--

"The learned trial Court was erred in law to decree the suit as the petitioners failed to bring the
case within parameters prescribed by Legislature in Section 9 of the Specific Relief Act,
therefore, the learned trial Court committed material irregularity, hence the revisional Court was
justified to reverse the findings of the learned trial Court in exercising of powers under Section
115 CPC. It is settled principle of law that question of law can be raised at any stage as per
principle laid down by the Hon'ble Supreme Court in case "Haji Abdullah Khan and others versus
Nisar Muhammad Khan and others" (PLD 1965 SC 690).

21. Likewise, reliance placed on another case tiled "Kundo Mal and others versus Daulat Ram
Vidya Parkash, Firm (A.I.R. 1940 Lahore 75), wherein, it is observed that: Further, there is
abundant authority in support of the proposition that objections regarding limitation cannot be
waived and that even if they are waived they can be taken up again by the parties waiving them or
by the Courts themselves. Reference in this connection may be made to AIR 1933 Lah 404, 44 I
C 890, AIR 1934 All 386, AIR 1932 All 108, 40 Mad 701 and 54 All 573."

22. Both the learned Courts below erred in law while not adverting to another aspect of the case
which is of paramount importance because the instant suit is apparently filed under Section 9 of
the Act ibid, however, together with the relief of perpetual injunction and recovery of mesne
profit. The suit is not filed in its proper form because the Court under Section 9 of the Act ibid
can only adjudicate upon the claim of possession alone bereft of title, right or legal character of
the claimant or mesne profit, the Court is not required to enter or adjudicate title, right or legal
character of the person claiming possession under Section 9 of the Act ibid. If a person is
dispossessed illegally and without due process of law and he is interested to claim damages and
mesne profit together with possession than he has to file the suit under Section 8 of the Specific
Relief Act, 1877. However, if a suit seeking the restoration of possession under Section 9 of the
Act ibid together with the above mentioned relief, the Court while exercising power under Order
VI Rule 16 CPC strike out the pleadings, which are unnecessary and causes delay in fair trial or
where it appears to the Court in terms of Order II Rule 6 CPC that any cause of action enjoined in
one suit can not be tried. In this regard, reliance placed on a case titled "Foujmal Manaji versus
Bikhibai and another" (A.I.R. 1937 Sind 161), wherein, it is observed that--

"Under this section a suit for possession and mesne profits will not lie nor can the Court pass a
decree for mesne profits prior to the suit. Nor do we think an order for mesne profits during the
pendency of the suit can be made under this section, nor do we think a receiver can be appointed.
It is clear that this section provides a special and comparatively summary remedy for a person
dispossessed without his consent, and the section relates only to possession."

23. In view of the above discussion, the judgments and decrees of both the learned Courts below
are passed in sheer violation of law and material available on record, hence, committed gross
illegality and irregularity while deciding the matter before them, therefore, we hereby accept this
petition and set-aside the judgments and decrees of the trial Court as well as the Appellate Court
and the suit of the respondents is dismissed with costs through out.

(R.A.) Petition accepted.


Page No. 5 of 6
--------------------

Page No. 6 of 6
PLJ 2012 Lahore 32

Present: Muhammad Khalid Mehmood Khan, J.

MUHAMMAD ASIM RAFIQUE and 11 others--Petitioners

versus

ZARAI TARAQIATI BANK LIMITED, ISLAMABAD through its President and 7 others--
Respondents

W.P. No. 13387 and 1695 of 2010, decided on 11.3.2011.

Bank Staff Rules, 2005--

----R. 6--Contractual employ--Changed terms of appointment--Appointment was on contract


basis for period of 2 years--Violation of Rules, 2005--Entitlement of Regularization of Services--
Act of Bank was mala fide and of no legal effect--Question of--Whether contract between parties
enable petitioner to claim right of permanent employment and whether contract was with free
consents and knowledge--Validity--Contract employ can be appointed only for a specific job for
duration not acceding 3 years in aggregate and such terms and conditions as determined by
competent authority and clog for grant of contract service was only that person had not been
retired or relieved from service of bank under terms of Golden Hand Scheme--Concept of
management trainee was not available in Bank Staff Rules--New concept was introduced by
drafter of contract only to avoid application of Staff Rules 2005--Petition was allowed. [Pp. 35,
38 & 42] A, B & E

Terms of Contract Employee--

----Contract of petitioners was basically a contract of probationary officer as provided in


regulations of bank and ratio of probationary officer was applicable on petitioner. [P. 39] C

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

----S. 20--Islamabad High Court Act, (XVII of 2010), S. 4--Jurisdiction--Entire share holding was
with Federal Govt. and Provincial Govt.--Federation was party--Validity--Jurisdiction of
Islamabad High Court was restricted to Islambad Capital Territory--No doubt registered office
was at Islamabad but bank was corporation and was carrying its business all over Pakistan
including Multan and as such case of Petitioner was covered u/S. 20, CPC--Cause of action arose
within jurisdiction to entertain and decided these petitions. [P. 42] D

Mr. Muhammad Suleman Bhatti, Advocate for Petitioners.

Mr. Javed Iqbal Ansari, Advocate for Respondents.

Date of hearing: 22.2.2011.

Judgment

Through this single order I proposed to decide Writ Petition


No. 13387/2010 and W.P. No. 1695/2010.

2. Briefly stated the facts of these petitions are that petitioners in response to advertisement in
daily "Dawn" applied for the posts of Management Trainee Officers to Respondent No. 1. The
petitioners appeared in written test and after that they were interviewed and were finally selected
but due to ban imposed by Federal Government, the matter was not finalized and the Respondent
No. 1 changed the terms of appointment and petitioners were appointed on contract basis for a
period of 2 years in violation of Staff Rules 2005 of Respondent No. 1 promulgated in 2007. The
petitioners joined the duties, they were provided training by spending Rs. 60 million and after that
they were posted in different branches of Bank. They started to work according to the terms of
their service. On expiry of contract period it was extended on 26.5.2010 up to 31.12.2010. The
petitioners asserts that they applied to respondents in terms of their advertisement being
permanent employee and completed all tests and interview but letter issued to them was on
contract basis which is against the respondent's rules and regulations. The petitioners further
assert that they are entitled for regularization of their services, the respondents have no authority

Page No. 1 of 6
to refuse them from regularization against permanent posts. They relied on Pakistan
Telecommunication Company Limited through General Manager and another V. Muhammad
Zahid and 29 others (2010 SCMR 253) and Ikram Bari and 524 others V. National Bank of
Pakistan (2005 SCMR 100).

3. Notices were issued to respondents who submitted report and parawise comments and raised
preliminary objections against the maintainability of petitions on the ground that service rules of
Respondent No. 1 are non-statutory and as such writ petitions are not maintainable. The
petitioners have accepted the terms and conditions of the contract and as such they are not entitled
for any extension or regularization. An alternate remedy is available to them in the shape of
departmental appeal/ representation and as such writ petition is not maintainable. It was further
argued that this Court has no jurisdiction to entertain and decide the writ petitions as the dispute
falls within the jurisdiction of Islamabad High Court.

4. Heard. Record perused.

5. The petitioners claim is that Respondent No. 1 called applications for permanent employment
but subsequently they were recruited on contract basis and as such this act of respondents is
malafide and of no legal effect. The petitioners are permanent employees as they completed their
training and working as full-fledged Bank Officers with the respondents and they were given the
authority to negotiate financing and to execute charge documents of security and to issue
undertakings on behalf of respondent/Bank. The petitioners relied on Muhammad Asim's case,
Muhammad Asim and others V. Telecommunication and others (1997 PLC (CS) 1131), but in this
case it was laid down by the Hon'ble Supreme Court of Pakistan that who ever completed 189
days including the artificial break, (shall be permanent workman) but this case has no relevance
with the petitioner's case as their contract of service was in the first instance for specific period of
two years. The Hon'ble Supreme Court of Pakistan dilated upon the identical issue in Nazir
Ahmad Panhwar V. Government of Sindh through Chief Secretary, Sindh and others (2009 PLC
161) and Municipal Committee, Arifwala and others V. Muhammad Ramzan and 5 others (2005
SCMR 1721) and held that where there is a violation of principle of natural justice writ petition is
competent even if dispute involving is of contractual obligation. The Hon'ble Supreme Court of
Pakistan in Ikram Bari and 524 others V. National Bank of Pakistan (2005 SCMR 100) decided
the issue of contractual employment. In this case the bank employed Muqadam for securing the
pledged stock (the security of finance) the employees claimed that they are the employees of bank
and after the expiry of specific period as per law, they became the permanent employee of bank,
the bank objected that the petitioners are the employee of contractor and as such they could not be
treated the employee of Bank, but factually the Bank was debiting the salary of those employees
to customer account being the part of finance in terms of finance. The Hon'ble Supreme Court of
Pakistan held as under:--

"An Islamic Welfare State is under an obligation to establish a society which is free from
exploitation wherein social and economic justice is guaranteed to its citizens. The temporary
Godown staff and the daily wages employees were continued in service of the Bank on payment
of meager emoluments fixed by the Bank. In most of the case of these employees, there were
artificial breaks in their service so as to circumvent the provisions of the Labour Laws and the
Rules of the Bank and to deny them the salaries and other service benefits of regular employees.
In some cases, the Bank did not issue formal letters of appointment or termination to the
employees so as to preclude them to have access to justice. There was no equilibrium of
bargaining strength between the employer and the employees. The manner in which they had
been dealt with by the Bank was a fraud on the statue."

The question of contract employee also came up before the Hon'ble Supreme Court of Pakistan in
Dr. Anwar Ali Sahto and others V. Federation of Pakistan and others (PLD 2002 SC 101) and was
decided in the above said terms.

6. The question in the present case is whether the contract between the parties enable the
petitioners to claim right of permanent employment and the other question whether the contract
between the parties is with free consents and knowledge. The precise argument of learned counsel
for the petitioners is that they are the employees of Respondent No. 1 and their appointment was
in terms of the Respondent No. 1's rules and Regulations 2005 as a permanent employee. For
ascertaining the true interpretation of contract of petitioners the contract is reproduced as under:

"(i) Our offer for training is for a period of two years with effect from the date of joining.

(ii) You will receive a stipend of Rs. 16,000/- (Rupees Sixteen Thousand only) per month for
the training.

Page No. 2 of 6
(iii) Tax on your income shall be deducted at source by the Employer.

(iv) You will be entitled to 30 working days Annual Leave in a year (non-cumulative, non-
encashable).

(v) Your training in the Bank will count from the date you actually join the Bank.

(vi) The training is conditional upon your satisfactorily passing physical examination given
by the physician containing the detail of the tests i.e Blood complete examination (Hb%, CBC)
with ESR, Urine R/E, L.F.T & X-ray Chest/view.

(vii) The said training will not in any manner constitute employee/employer relationship
between you and the Bank in that training, for all intent and purposes, is only designed to provide
you an opportunity to gather gainful knowledge and experience. Your training will therefore, not
in any way be regulated by the terms and conditions of employment applicable to regular
employees of the Bank, nor will you be entitled to any benefits admissible to any such
employees.

(viii) You will throughout the term of your training, perform, observe and conform to such
duties and instructions as may from time to time be assigned or communicated to you by the
Bank.

(ix) During the training period the Bank reserves the right to terminate your contract at any
time by giving you 30 days notice without assigning any reason. The Bank can also extend
training period beyond two years.

(x) In case you wish to discontinue the training you will give the Bank 30 days notice in
writing. Your release before the expiry of the notice period will be at the sole discretion of the
Bank. If such request is made by you and agreed by the Bank, you will pay the Bank an amount
equivalent to the stipend, for the notice period not served.

(xi) The training does not offer any guarantee of regular employment and there is no
obligation or commitment on the part of the Bank to offer you regular employment.

(xii) Other conditions.

(a) Before joining duties, you will provide Bon of Fidelity & Secrecy on the attached
proforma.

(b) You will be governed by the Rules, Regulations and orders issued by the Bank
from time to time in all matters in respect of your contract, not specifically mentioned in this
offer.

(c) Job title, assignment and location of posting may be changed by the Management
at its sole discretion.

(d) The terms & conditions of your contract shall at all times be governed by staff
Regulations 2005 as amended from time to time.

2. Finally, it is understood that by your acceptance of this offer of training you will not, ispo
facto, engage in any other business or occupation while under training.

3. If the above terms and conditions are acceptable to you then please sign the duplicate of this
letter in token of your acceptance of this offer and submit the same alongwith joining report
within 07 days of the receipt of this letter to Zonal Chief, ZTBL, Vehari. Please note that this
offer will lapse if you fail to join us on the above mentioned date.

Yours Sincerely,

(Ijaz Akhtar Rao)

Senior Vice President (HROD)

I, Muhammad Asim Rafiq confirm that the above terms and conditions are acceptable to me and
that my date of joining with Zarai Taraqiati Bank Limited is 15-05-2008."

Page No. 3 of 6
7. Under Clause VII of the Contract of Service, the argument of learned counsel for Respondent
No. 1 is that petitioners after reading and accepting the said condition signed the contract and as
such at the time of its acceptance, the petitioners were aware of fact that they are not the
employee of bank and by signing this agreement they will gain the knowledge of banking and
nothing more, but the said clause is in negation of clause (xii) (b) (d), these two clauses provide
that terms and conditions of the contract shall at all times be governed by staff Regulation 2005
as amended from time to time and vide Clause-B the petitioners were to be governed by the Rules
and Regulations and orders issued by the bank from time to time in all matters in respect of
contract not specifically mentioned in this offer. Bank Staff Regulations 2005, provides as
under:--

"2(ii). Persons employed in the service of the Bank, with whatever designation, on contract basis
shall be governed by the terms and conditions as laid down in their respective employment
contracts:

Provided, however, that persons employed on contract for any specific assignment shall
not exercise financial and administrative powers.

Provided further that a person serving the Bank on contract basis, shall not be eligible for
deputation to any other institution.

7. (i) All appointments in the service of the Bank shall be made by direct recruitment
and by a promotion from lower cadre or grade.

(ii) No person shall be appointed by the Bank as a regular employee who has completed
sixtieth years of age.

(iii) The Bank may, however, employ a person on contract basis for a specific job for a
duration not exceeding three years in aggregate on such terms & conditions as may be determined
by the competent authority, provided however that such a person had not been retired or relieved
from the service of the Bank under the terms of a Golden Handshake Scheme, an early retirement
scheme or terminated in terms of staff regulations."

8. The above regulations only provides the contractual employ under Rule 6 ibid which provides
that a contract employ can be appointed only for a specific job for a duration not acceding 3 years
in aggregate and such terms and conditions as determined by the competent authority and the clog
for grant of contract service is only that the person had not been retired or relieved from the
service of Bank under the terms of Golden Handshake Scheme, an early retirement scheme and
terminated in Staff Regulations. The concept of Management Trainee is not available in the staff
Rules. The contract employee is also not permitted under the staff Regulation, 2005 except in
special circumstances. In the petitioner's case a new concept was introduced by the drafter of
contract only to avoid the application of staff Rules 2005 and other laws. If we minutely examine
the Clause-Vii of the appointment letter as vehemently relied upon by learned counsel for
Respondent No. 1, the natural result of said clause is that the Bank, a financial institution whose
51% share holding is with the Federal Government and remaining is with other Federal and
Provincial institutions by investing a huge amount, is producing the Bank officers for rendering
the services to other financial institutions. Admittedly Respondent No. 1 is doing banking
business for a specific purpose i.e agricultural financing. No sane banker or management of Bank
can utilize the public funds for the benefit of others or its competitors. If this is the case then the
Management of Respondent No. 1 be taken to task why they have spent Rs. 60 Million for
providing training to Management Trainees for a specific financing i.e agricultural financing but
are not utilizing their expertise for its own bank. Respondent No. 1 is the manager of public
money and as such management of said bank is responsible to render the accounts to public. It is
not understandable that the management of Respondent No. 1 is utilizing the public money for
the training of bank officers, the services of whose will be available to other Banks working
mostly in private sector. Respondent No. 1 is financial institution and is custodian of public funds
and is not a charitable institution. Clause-vii if read with clause XII B & D the natural conclusion
is that later part of appointment letter will prevail upon the upper part of the document. If this
contract is regulate able by the rules and regulations of the bank where the Management Trainee
is find mention then it is clear that the petitioner's contract is the contract of probationary officer
of Bank.

9. From the above said discussion it is manifest that management of Respondent No. 1 decided to
offer employment to newly qualified M.B.As or holding professional degrees recognized by the
Higher Education Commission for boosting their specific portfolio i.e agriculture financing but
for avoiding their permanent employment they designed the appointment letter under the name
and style of Management Trainee.

Page No. 4 of 6
10. There is no denial on the part of Respondent No. 1 that petitioners were performing duties
towards sanction of loan, negotiating of financial facilities with the customers, evaluating the
securities and were also recovering the finances allowed to the customers. Some of the petitioners
were posted in branches as Second Officers and even the managers. The petitioners negotiated all
terms of finances on behalf of Respondents No. 1. This means Respondent No. 1 under the garb
of word training was utilizing their expertise as Bank Officers.

11. The argument of learned counsel for respondent that the contract employees are not enjoying
the benefit of service rules and relies on judgment of Hon'ble Supreme Court of Pakistan in Civil
Appeals Nos. 468, 471-474, 632-633, 852-859, 883-892, 899-901, 950 & 974 of 2010 Pakistan
Telecommunication Co. Itrd V Iqbal Nasir and others. The judgment relied upon by learned
counsel for Respondent No. 1 is with reference to Pakistan Telecommunication Co. Ltd. The
portion of its management is managed and owned by a private person. Further, the agreement,
examined by the Hon'ble Supreme Court of Pakistan is absolutely on different parameters. The
said agreement does not provide the application of service rules of P.T.C.L. There is only one
clause which regulates the terms of contract i.e termination clause and that is the reason the
Hon'ble Supreme Court of Pakistan has held that the contractual employees of PTCL are
governed under the doctrine of Master and Servant. But in the present case there is specific
mention of the application of service rules of Respondent No. 1. Further the business of
Respondent No. 1 is entirely different from the PT.C.L. The P.T.C.L is providing services to its
customers whereas Respondent No. 1 is providing financing for meeting the requirement of
agriculturist and as such the circumstances or environment of P.T.C.L and Respondent No. 1 has
no similarity and as such in my humble view the contract of petitioners is basically a contract of
probationary officer as provided in the regulations of the Bank and ratio of probationary officer is
applicable on the petitioners. The argument of learned counsel for the respondent that the
petitioners have accepted the contract of service after knowing its contents and with free consent.
This issue was dilated upon by the Hon'ble Supreme Court of Pakistan in Pakistan and others V.
Public at Large and others (PLD 1987 Supreme Court 304) and it was held as under:--

"It was also argued that the impugned provisions of law amount to a contract between the
Government and the civil servant and thus they involve his consent. In fact, it is not in the nature
of a free consent between free agents. On the one hand, state power is projected in the form the
statue and on the other, the civil servant has no choice of a bargain on these provisions when
joining the service. He cannot get it changed. In this sense it is distinguishable from a true
"contract appointment". By the Government which, of course, would be dealt with differently.
This assumption is supported by the language of the provision. The retirement has to be in "public
interest. This element needs determination of a factual nature in each case. There is no question of
consent by the affected person that his retirement would in fact be in public interest. In this
behalf, there is no difference between retirement due to misconduct and retirement due to public
interest. In either case, there has to be a determination and finding of fact. If in one there cannot
be assumed any consent, it cannot be assumed in the other also. Thus, if the law provides
safeguards against unjust retirements, it will not be the negation of the Qur'anic provision on
contract and consent."

12. Reliance may also be placed on Habibullah V. Government of the Punjab and 5 others (PLD
1980 Lahore 37) wherein it was held that the employer being placed in a position of authority and
strength could always coerce employees to waive their legal protection and accept contractual
terms at the pains of losing his job. Case of Ikram Bari and 524 others V. National Bank of
Pakistan (2005 SCMR 100) has also taken care of the contract of employment as referred to
above and the Hon'ble Supreme Court of Pakistan has held that this type of contract is fraud on
the statute.

13. The other argument of learned counsel for Respondent No. 1 is that as the petitioners are
contractual employees and as such writ petition is not maintainable. Hon'ble Supreme Court of
Pakistan in a case of Dr. Anwar Ali Sahto and others V. Federation of Pakistan and others (PLD
2002 Supreme Court 101) held that even a contract employee could be reinstated in service in
appropriated case if such employment become permanent by efflux of time. Reliance is also
placed on Abdul Sattar and another V. Sui Northern Gas Pipelines Limited and others (2001
SCMR 1935). This issue came up before the Hon'ble Supreme Court of Pakistan in Pakistan
International Airline Corporation and others V. Tanweer-ur-Rehman and others (PLD 2010
Supreme Court 676) and the Hon'ble Supreme Court of Pakistan has held that main touch stone
for ascertaining the constitutional jurisdiction of this Court it has to be seen whether respondent is
performing function in connection with the affairs of federation. In this case the P.I.A. was
respondent in which 50% share holding is with the Federal Government and Hon'ble Supreme
Court of Pakistan has held as under:

"In the preceding paragraphs, the purpose and functions for the establishment of the appellant-
Corporation has been quoted with reference to Sections 3 and 4 of the Act, 1956, which provides
Page No. 5 of 6
that appellant-Corporation shall provide and further develop safe, efficient, adequate, economical
and properly coordinated air-transport service within and outside the country. At this juncture,
reference to Federal Legislative List Par-I of Fourth Schedule (Item No. 24), would not be out of
context, whereby the carriage of persons and goods by sea or air has been made the legislative
subject of the Parliament. Similarly, under Schedule-II, Item 5(2), Rules of Business, 1973, the
appellant-Corporation has been included within the domain of Defence Division, Government of
Pakistan. It is also apparent from the Act, 1956 that nine Directors of the appellant-Corporation,
out of eleven, including the Chairman are to be appointed by the Federal Government. Although,
the Government has no direct control in the appellant-Corporation as its affairs are to be managed
by the Board of Directors under Section 5 of the Act, 1956, but the fact remains that the Federal
Government has power to issue directives to the Corporation on matters of policy if it considers
necessary and such directives are binding on the Corporation. More so, the power to appoint
Chairman and Directors remains with the Government and in addition to it the Government also
holds the controlling shares of more than 50%. Further, the appellant-Corporation is providing
carriage of persons and goods, which is one of the functions of the State, as mentioned in Federal
Legislative List and its affairs are indirectly controlled by the Defence Division of the Federal
Government, therefore, the above test stands fully satisfied and we are persuaded to hold that the
appellant-Corporation is performing its functions in connection with the affairs of the
Federation."

14. In the present case the entire share holding is with the Federal Government and Provincial
Government or the Government own corporation. Respondent No. 1 is the manager of public
funds which the Federal Government provides them to boost up the Agricultural sector of the
country and as such it is safely said that Respondent No. 1 is performing functions in connection
with the affairs of Federation. Hence, the argument of learned counsel for respondent is repelled.

15. Last argument of learned counsel for respondent is that as the Federation of Pakistan is party
in the petition and as such Islamabad High Court has exclusive jurisdiction to decide the petition.
Section 4 of the Act VII of 2010, Islamabad High Court, provides as under:--

"4. Jurisdiction--Islamabad High Court shall have, in respect of the Islamabad Capital Territory,
original, appellate, revisional and other jurisdiction, as under the Constitution or the laws in force
immediately before the commencement of this Act, is exercisable in respect of the said
territory by the Lahore high Court."

16. Perusal of Section 4 shows that jurisdiction of Islamabad High Court is restricted to the
Islamabad Capital Territory only. No doubt registered office of respondent is at Islamabad but
Respondent No. 1 is corporation and is carrying its business all over the Pakistan including
Multan and as such case of petitioner is covered under Section 20 CPC Explanation 2. In this case
cause of action arose within the Jurisdiction of this Court Multan Bench and as such this Court
has the jurisdiction to entertain and decide these petitions. This argument is thus answered in
negative.

17. The upshot of the above discussion is that these writ petitions succeed and are allowed and
the petitioners will be dealt as the probationary officers in terms of Z.T.B.L Staff regulations-2005
Clause-11(i), (ii).

(R.A.) Petition allowed.

Page No. 6 of 6
PLJ 2011 Tr.C. (Services) 187
[Federal Service Tribunal, Islamabad]

Present: Moazzam Hayat and Mushtaq Malik, Members

Syed TANWEER AHMED--Appellant

versus

FEDERATION OF PAKISTAN through Secretary Establishment Division Government of


Pakistan, Islamabad
& 2 others--Respondents

Appeal No. 1813(R)CS of 2010, decided on 16.6.2011.

Inter-se Seniority--

----Civil servant--Both civil servants were appointed in same batch--Respondent was placed
senior to appellant in merit list--Seniority list could not be challenged in tribunal--Validity--If
civil servant had any grievance in such regard he could make it to FPSC or establishment
division--However, any decision on his that complaint would not give him a fresh cause of action
for filing appeal in Tribunal--Appeal disposed of. [P. 189] A

Mr. Zia-ul-Haq Kiyani, Advocate for Appellant.

Mr. Tanvir Khalid Awan, Advocate for the Respondents with Mr. Shaukat Mahmood, Asstt.
Establishment Division as departmental representative.

Date of hearing: 16.6.2011.

Judgment

Moazzam Hayat, Member.--Appellant Syed Tanweer Ahmed is a Director in MS Wing of the


Establishment Division. His grievance is that in the seniority list of Deputy Directors
published/circulated on 11.02.2009 Respondent No. 3 Muntazir Khan was placed senior to him.
According to him he was relegated in the seniority without any reason.

2. The appellant had been recommended for appointment as Deputy Director by the FPSC. Since
seniority list of Deputy Directors was published on 11.02.2009 he asked for the reasons as to how
Respondent 3 was shown senior to him. Thereafter he filed his objections on 11.03.2009. The
respondents made a reference to a letter dated 19.05.1986 issued by the Establishment Division
that seniority of direct appointees was determined by the FPSC on merit. After receiving this
letter he filed a departmental his appeal on 19.07.2010 which was not responded. Hence this
appeal.

3. The appeal is resisted by the respondents. It is stated that the appellant and Respondent No. 3
were selected by the FPSC in the same batch against the advertisement dated 02.12.1984 and the
seniority of the appellant vis-a-vis Respondent No. 3 had been determined by the FPSC on the
basis of letter dated 19.05.1986, therefore, the appellant had no locus standi to agitate the matter
in the Tribunal.

4. We have heard the learned counsel for the parties and have also perused the record.

5. The seniority list was published on 11.02.2009 whereas the departmental appeal against this
list was filed on 19.07.2010. Thus the departmental appeal was time barred. It is laid down in
2007 SCMR 513 that when the departmental appeal is not filed in time, appeal in the Tribunal is
not maintainable. We accordingly hold that the appeal is not maintainable.

6. Both the appellant and Respondent No. 3 were appointed in the same batch on the
recommendations of the FPSC. Respondent No. 3 was placed senior to the appellant in the merit
list prepared by FPSC. The initial seniority list prepared by the FPSC cannot be challenged in the
Tribunal. Thus Respondent No. 3 he shall remain senior to the appellant.

7. The seniority lists of Deputy Directors were published in September, 1989 and on 31.10.1998
also. In both the lists Respondent No. 3 was placed senior to the appellant. The appellant had

Page No. 1 of 2
never challenged these lists. As such these lists had attained finality. In the presence of these lists,
which were never challenged, Respondent No. 3 was senior to the appellant. Thus there is no
merit in the contention of the appellant that he was senior to Respondent No. 3.

8. Under the Civil Servants (Seniority) Rules, 1993 inter se seniority is assigned by the selecting
authority on merits. Respondent No. 3 was assigned seniority on merit under the rules. The
appellant, therefore, cannot challenge the seniority of Respondent No. 3 given to him by the
FPSC.

9. For the above reasons, we find no merit in the appeal which dismissed.

10. After the arguments were heard the appellant raised an objection that Respondent No. 3 was
appointed against the prescribed quota. If he has any grievance in this regard he can make it to the
FPSC or the Establishment Division. However, any decision on his that complaint shall not give
him a fresh cause of action for filing appeal in the Tribunal.

11. There shall be no order as to costs.

12. Parties shall be informed accordingly.

(R.A.) Appeal dismissed.

Page No. 2 of 2
PLJ 2011 SC 858
[Appellate Jurisdiction]

Present: Nasir-ul-mulk, Raja Fayyaz Ahmed, Jawwad S. Khawaja, Rahmat Hussain Jafferi &
Tariq Parvez, JJ.

MUHAMMAD SAEED BACHA and another--Appellants

versus

Late BADSHAH AMIR and others--Respondents

Civil Appeal No. 781 of 2006, decided on 28.4.2010.

(On appeal from the judgment dated 25.05.2004, passed by Peshawar High Court, Peshawar in
Writ Petition No. 1410 of 2003)

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

----O. XXIII, R. 1(2)--Limitation Act, 1908, S. 14--Earlier suit was allowed to be withdrawn with
liberty to institute a fresh suit in respect of the same subject matter--Whether the time consumed
in the proceedings arising out of the earlier suit was liable to exclusion or otherwise--On
institution of the fresh suit by virtue of the provisions of Rule 2 of Order XXIII, CPC plaintiff
shall be bound by the law of limitation in the same manner, as if the first suit had not been
instituted--Exclusion of the period essentially is dependent of the factum of prosecuting another
civil proceeding with due diligence by the plaintiff or as the case may be to be entitled to such
relief with in the purview of S. 14 of Limitation Act. [P. 864 & 865] A & B

Limitation Act, 1908 (V of 1908)--

----S. 14--Beneficial applicability of the provisions of Section 14 of the Limitation Act, would not
simply be dependent on the withdrawal of the suit with the permission of the Court to institute a
fresh suit on the same cause of action--Plaintiff has to show that the suit so instituted was within
time but if the same was hit by limitation, the burden would always be on the plaintiff to show
that he had been with due diligence prosecuting another civil proceedings founded upon the same
cause of action and acted in good faith in a Court, which for the defect of jurisdiction, or other
cause of like nature is unable to entertain it read with the explanations to Section 14 of the
Limitation Act, to be entitled to the exclusion of the period consumed in such proceedings.
[P. 867] C

Mian Muhammad Younas, ASC and Mr. Arshad Ali, Ch., AOR for Appellants.

Qazi Muhammad Jamil, Sr. ASC for Respondents.

Date of hearing: 28.04.2010.

Judgment

Raja Fayyaz Ahmed, J.--This Civil Appeal has been directed against the judgment dated
25.05.2004, passed by the learned Peshawar High Court, Peshawar, whereby Writ Petition No.
1410 of 2003, filed by the appellants against the order of the District Judge/Zila Qazi, Dir Payan
dated 06.09.2003 accepting the Civil Revision, has been dismissed.

2. The precise relevant facts of the case are that the appellants alongwith a few villagers filed a
Civil Suit against the respondents for declaration and injunction in respect of the suit property but
failed before the learned trial Court. The judgment and decree was unsuccessfully assailed by the
appellants before the learned Peshawar High Court, Peshawar in RFA No. 76 of 1991. During
hearing of the Civil Appeal No. 798 of 2005 before this Court, the learned counsel for the
appellants conceded that the plaint filed by them had an inherent defect i.e. the suit should have
been filed by them in the representative capacity and for such reason the same was not decided by
the Court justly, therefore, the learned counsel for the appellants prayed for withdrawal of the suit
with permission to file a fresh suit which request was conceded to by the learned counsel for the
respondents. Thus, with the consent of the learned counsel for the parties; the request for
withdrawal of the suit was allowed with permission to file a fresh suit in the representative
capacity on the same cause of action subject to the payment of cost of Rs.5000/- by the appellants

Page No. 1 of 6
and in consequence, the impugned orders were set aside and the appeal was accordingly disposed
of vide order dated 09.05.2001 of this Court.

3. After service of summons of the institutions of the fresh suit; the contesting respondents filed
an application for the rejection of the plaint as being barred by limitation, which application was
rejected by the learned Illaqa Qazi vide order dated 17.09.2003, challenged through Civil
Revision by the respondents before the Zila Qazi Dir Payan. After hearing the parties vide order
dated 06.09.2003, this Civil revision was accepted and as a consequence the plaint was rejected
being barred by limitation. Appellants challenged the said order of the Revisional Court by filing
Writ Petition No. 1410 of 2003 before the learned Peshawar High Court, Peshawar, which was
dismissed vide impugned judgment. Leave was granted by this Court vide order dated
25.04.2006, which reads as under:--

"After hearing the learned counsel for the parties, we grant leave to appeal to consider, inter alia,
the question whether in the event of institution of a fresh suit after its withdrawal by permission
of the Supreme Court, the limitation would be reckoned with reference to the institution of the
fresh suit or the earlier suit in the light of the Order XXIII, Rule 2 CPC and other provisions of
law."

4. The learned ASC for the appellants contended that undoubtedly the new suit was instituted by
the appellants after withdrawal of the earlier suit by leave of this Court, which was based on
recurring and a new cause of action in view of the new denial of the rights and title of the
appellants and thus, was not barred by limitation in view of the statement of facts contained in the
suit. In any case in view of the objections raised in the Misc. Application filed on behalf of the
contesting defendants, under Order VII Rule 11 CPC in the circumstances of the case; issue on
the question of limitation to have been essentially framed for resolving the controversy, which
involved the facts respectively alleged and denied by the parties to the suit. In support of the
former arguments reliance has been placed on the precedent reported cases i.e. Juma Khan and
others v. Muhammad Khan and others (1973 SCMR 289); Riasat Ali v. Iabal Rai and others (AIR
1935 Lahore 827); Pothukutchi Appa Rao and others v. Secretary of State (AIR 1938 Madras
193); & Parjapati and others v. Jot Singh and others (AIR 1934 Allahabad 539). According to the
learned counsel, this suit was not dismissed as barred by limitation by the learned trial Court in
view of the allegations of facts as contained in the suit and on service of summons, Respondents
Nos. 1 to 69 filed contesting written statement and a Misc. Application was also moved for
rejection of the plaint under Order VII Rule 11 CPC, which was seriously contested by the
appellants and was rejected by the learned trial Court, which order was challenged in Revision
before the learned Zila Qazi, Dir Payan and was allowed by rejecting the plaint as barred by
limitation. Without prejudice to his above-noted contentions, the learned counsel contended that
mis-joinder and non-joinder of the parties or causes of action by virtue of sub-section (3) of
Section 14 of the Limitation Act is a cause of like nature with defect of jurisdiction, therefore, the
time consumed in the proceedings being earlier prosecuted in the Court was liable to be excluded
in computing the period of limitation on filing of the fresh suit on the same cause of action under
sub-section (2) of Section 14 of the Limitation Act read with sub-section (1). On institution of the
earlier suit the limitation stopped running against the appellants and consequent upon the
permission accorded by this Court for filing a fresh suit in the representative capacity on the same
cause of action; the new suit was instituted by the appellants in the representative capacity which
thus, was not hit by limitation but on wrong assumption and mis-application of law, the appellants
were non-suited vide impugned judgment. The learned counsel to supplement his arguments has
also placed reliance on the reported precedent cases i.e. Ghulam Ali v. Asmat Ullah and another
(1990 SCMR 1630), Jewan and 7 others v. Federation of Pakistan through Secretary Revenue,
Islamabad and 2 others (1994 SCMR 826), Mst.Anwar Bibi and others v. Abdul Hameed (2002
SCMR 144) Parjapati and others v. Jot Singh and others (AIR 1934 Allahabad 539) and
Governor-General in Council v. Gouri Shankar Mills Limited (AIR (38) 1951 Patna 382).

5. The learned Sr. ASC for the respondents argued that it was not a case of rejection of plaint
simplicitor because in the peculiar circumstances of the case, the earlier suit was withdrawn with
permission to file a new suit on the same cause of action within the meaning of sub-rule (2) of
Rule 1 of Order XXIII CPC, therefore, the law of limitation on institution of fresh suit shall have
full application in the same manner, as if the first suit had not been instituted as envisaged by
Rule 2 of Order XXIII CPC, hence; Section 14 of the Limitation Act will have no application in
the case in hand nor the appellants could satisfactorily show that the time spent in prosecuting the
proceedings in the earlier suit can be legitimately excluded in computing the limitation.

6. The impugned judgment, the judgment of the Revisional Court, pleading of the parties, the
case law cited by the learned ASC for the appellants and the provisions of Order XXIII Rules 1 &
2 CPC read with Section 14 of the Limitation Act have been perused and considered carefully
with the assistance of the learned counsel for the parties. It is an admitted feature of the case that
the suit earlier instituted by some of the appellants for declaration and injunction in respect of the
Page No. 2 of 6
suit property, during the hearing of Civil Appeal before this Court was requested to be withdrawn
by the learned counsel for the appellants in the said appeal, who conceded that the plaint suffered
from inherent defect viz the suit to have been filed in the representative capacity; sought for
permission to file a fresh suit on the same cause of action, which request was not opposed by the
learned counsel for the respondents in the said appeal. Thus, with the consent of the learned
counsel for the parties vide order dated 09.05.2001 of this Court, the request for withdrawal of the
suit was allowed with permission to file a fresh suit in the representative capacity on the same
cause of action subject to the payment of the cost. The fresh suit in respect of the subject matter
of the earlier suit in the representative capacity was instituted on 11.07.2001 by the appellants in
the Court of learned Illaqa Qazi.

In the title of the suit so instituted, the cause of action for instituting the suit was shown to have
accrued to the plaintiffs in the year 1986, which stated to have continued and thereafter, on
09.05.2001, when permission was accorded to the plaintiffs for instituting a fresh suit and
thereafter, on refusal by the respondents. In the body of the plaint, as regards the accrual of cause
of action for instituting a fresh suit about the fresh refusal on the part of respondents to
acknowledge the claimed rights of the appellants, nothing has been said and quite contrary to the
contention of the learned counsel for the appellants; in Paragraph No. 8 of the suit, it was stated
that promptly in respect of the suit property; the suit was earlier instituted, which proceedings
came up to this Court when permission was granted for instituting a fresh suit, therefore, the
instant suit has been filed which is within time and; on any ground if the time period had become
questionable; the same would be condonable under the law, as the plaintiffs throughout and
continuously had been prosecuting the legal proceedings diligently and were never indolent
however, contrary to what was stated in Paragraph No. 8 of the plaint; in Paragraph No. 9 of the
plaint it was alleged that the defendants are not prepared to accept and acknowledge the rights of
the plaintiffs in respect of the suit property/mountain in question hence; this suit. No date or any
other detail of accrual of new cause of action was given in the plaint nor the fresh suit in respect
of the same subject matter and cause of action could be said to be maintainable for such reason
based on conflicting and contrary pleadings thus, no benefit on such score can be extended in
favour of the appellants and were it so; there was no occasion for the plaintiffs to have
incorporated the contents of Paragraph No. 8 of the plaint mentioned-above in which it was
specifically stated that the fresh suit has been instituted in view of the permission accorded by
this Court for withdrawal of the suit, in order to institute a fresh suit on the same cause of action
inasmuch as; in the caption of present suit, it has been as above-noted, stated in express terms that
initially the cause of action accrued to the plaintiffs in the year 1986 and thereafter, on
09.05.2001, when permission was granted by this Court for instituting a fresh suit, therefore, by
no stretch it can be said that the instant suit was filed by the appellants on a new cause of action.
The case law i.e. (1973 SCMR 289) supra, (AIR 1938 Madras 193), (AIR 1934 Allahabad 539)
and (AIR 1935 Lahore 827) supra for the foregoing reasons render hardly any support to his
contention.

7. Respondents Nos. 1 to 69 contestants-defendants in their joint written statement, on various


grounds of law and facts resisted the suit. In preliminary Objection No. (IV) and Paragraph No. 8
of the written statement on merits it was specifically contended that the suit was hit by limitation.
It appears from the scrutiny of the documents available on the paper-book that subsequent to the
filing of the written statement, an application was filed by the said respondents under Order VII
Rule 11 CPC seeking for rejection of the plaint as being barred by limitation. Copy of the
application has not been filed on the present appeal file. Copy of their reply to the said
application is available on the paper-book through which the said Misc. Application was
contested by the appellants. In the concluding para of this reply, it was stated that permission was
granted by this Court for instituting a fresh suit which is within time. The learned Illaqa Qazi/trial
Judge vide order dated 17.09.2003, rejected the application of the respondents seeking for
dismissal of the suit as barred by limitation. This order was challenged by Respondents Nos. 1 to
69 before the Zila Qazi, Dir Payan through Civil Revision No. 19 of 2003, which was accepted by
the learned Revisional Court vide judgment dated 06.11.2003 and in consequence the application
filed under Order VII Rule 11 CPC was accepted and the suit of the appellants rejected/dismissed
as barred by limitation by concluding that the cause of action for instituting the suit had accrued
to the appellants in the year 1986, while the present suit has been filed on 11.07.2001, which thus,
patently was barred by limitation. The judgment and decree of the learned District Judge has been
maintained and upheld vide impugned judgment passed by the learned High Court before which
the same was challenged in Writ jurisdiction.

8. Next it was argued on behalf of the appellants that in the circumstances of the case, issue on
the question of limitation for resolving the controversy entailing substantial impact, after
recording the evidence to have been essentially framed. It may be seen that conflicting
contentions were raised/advanced on the question of limitation. It was stated in Paragraph No. 8
of the plaint that the time consumed in the earlier proceedings and in respect of the same cause of
action and the subject matter of the earlier suit was liable to exclusion under sub-section (2) of
Page No. 3 of 6
Section 14 of the Limitation Act and on the other hand it was argued that the question of
limitation could, only have been resolved after recording evidence of the parties in the light of the
issue to have been essentially framed by the learned trial Court. Both such pleas patently are
mutually destructive. In so far as the question of framing the issue on the point of limitation is
concerned, was not relevant nor required to have been framed for the simple reason that the
earlier suit based on the same cause of action was allowed to be withdrawn with permission to
file a fresh suit, which thus, was filed. The case law (1994 SCMR 826) supra for the foregoing
reasons and being distinguishable on facts has no relevance. The other cited case (1990 SCMR
1630) supra has also no application to the case in hand being distinguishable on facts as it was
held by this Court in the cited precedent case that the plaint disclosed sufficient cause of action
and to proceed further with the suit and; the lack of proof or weakness of proof in the
circumstances of the case did not furnish any justification for coming to conclusion that there was
no cause of action shown in the plaint and thus not concurring with the reasoning given by the
learned High Court for rejection of the plaint; the remand order passed by the first appellate Court
was restored. (AIR 1938 Madras 193) supra has also no application to the proposition involved in
the instant case. It was observed by the learned Division Bench of the Madras High Court with
reference to the pleadings and facts of the case as under:--

"There is nothing in law which says that the moment a person's right is denied, he is bound at his
peril to bring a suit for declaration. It would be most unreasonable to hold that a bare repudiation
of a person's title, without even an over act, would make it incumbent on him to bring a
declaratory suit. A part surely has a right to elect as to when he may bring a suit for vindicating
his rights, when there are several or successive denials. True, a mere continuation of a prior cause
of action does not give rise to fresh right, for instance, where property is attached, the procuring
of the attachment is the wrongly denial and the cause of action arises when the attachment is
effected; in such a case it is wrong to hold that there has been a "continuing wrong" so as to give
a fresh starting point during the whole period the attachment subsist. But from this it does not
follow that an owner can never ignore an attack against his title, however, causal or trivial,
without his right to sue being imperiled in respect of a subsequent invasion. It is for the plaintiff
to decide at his option, on which act he chooses to found his cause of action, and when he does
so, it is with reference to the particular infringement the alleges that the limitation should be
reckoned."

9. Therefore, the only question requiring consideration would be as to whether the time
consumed in the proceedings arising out of the earlier suit was liable to exclusion or otherwise.
Admittedly, the earlier suit was allowed to be withdrawn with liberty to institute a fresh suit in
respect of same subject matter within the meaning of sub-rule (2) of Rule 1 of Order XXIII
CPC and on institution of the fresh suit by virtue

Page No. 4 of 6
of the provisions of Rule 2 of Order XXIII CPC the plaintiff shall be bound by the law of
limitation in the same manner, as if the first suit had not been instituted. During the hearing of the
arguments, the learned ASC for the appellants did not make any submission with regard to the
application of the law of limitation above mentioned, which provisions of the law
notwithstanding the submission of any argument or otherwise is fully applicable to the fresh suit
instituted by the appellants on permission granted by this Court. The cause of action accrued to
the plaintiffs in the year 1986, when the earlier suit was instituted by them but the point of
distinction would be as to whether the suit subsequently instituted would be thrown out as barred
by limitation straight away for such reason without examining the question with regard to the
exclusion of time spent in the earlier proceedings in view of sub-section (2) of Section 14 of the
Limitation Act.

10. In the cited case i.e. AIR (38) 1951 Patna 382, (supra) with reference to facts of the case of
which the learned Division Bench of the High Court was seized of, observed that plaintiff
originally brought the suit on 16.09.1943 with respect to the consignment, on 15.11.1944. The
plaintiff withdrew the suit with leave of the Court to sue afresh on the same cause of action and
the reason was that suit had been filed within two months of the service of notice under Section
80 CPC and the plaintiff instituted the fresh suit on 16.11.1944 thus, on these facts it was held
that under Section 14 of the Limitation Act, the plaintiff was entitled to exclude the period during
which the previous suit was pending in the Court.

In the cited precedent case, from perusal of the judgment it appears that, the question as to
whether the plaintiff in the suit had been prosecuting with due diligence another civil proceedings
founded on the same cause of action was not looked into while excluding the period during which
the previous suit was pending in the Court. The exclusion of the period essentially is dependent
on the factum of prosecuting another civil proceedings with due diligence by the plaintiff or as
the case may be to be entitled to such relief within the purview of Section 14 of the Limitation
Act.

11. Adverting to the present case in view of the contention raised before us, during the course of
arguments, nothing was said by the learned counsel with regard to the diligent prosecution of the
case in good faith which for the lack of jurisdiction or other cause of like nature entitled the
appellant/plaintiff for the exclusion of the period spent in prosecuting the remedy before the same
or other Court. It was, therefore, in view of the provisions of Section 14 of the Act obligatory on
the part of the appellants/plaintiffs for discharging the initial onus justifying for exclusion of the
period spent in prosecuting the previous proceedings, which factum is completely wanting in the
instant case though essentially, it was required on the part of the appellants/plaintiffs to have
pleaded material facts in the plaint to justify the grant of relief within the purview of Section 14
of the Limitation Act. It was conceded before this Court in the earlier proceedings that the suit
was independently filed and for such defect in the form of the suit, permission was accorded to
the appellants/plaintiffs in the said appeal to withdraw the suit in order to file a fresh suit on the
same subject matter and cause of action, hence; in such view of the matter, it could not be
presumed that the plaintiffs had been diligently prosecuting the previous legal proceedings before
the Courts of law; as for the first time before this Court, it was submitted on behalf of the
appellants/plaintiffs (in the previous suit) that they may be permitted to withdraw the suit and at
no stage of proceedings of the case, up to the level of High Court even the competency of the suit
or otherwise was looked into, rather; the conduct of proceedings and prosecuting the suit
throughout, abundantly indicates that in a casual and cursory manner the, suit was being
prosecuted by the plaintiffs, therefore, the period spent in prosecuting the proceedings in previous
suit for want of due diligence on the part of the appellants/plaintiffs could not be allowed to be
excluded from, preceding the date on which the fresh suit was instituted. The previous suit in
view of the averments, as contained in the plaint, to have essentially instituted for in a
representative capacity after compliance of the required formalities, which was not done and,
thus; the provisions of the law governing such kind of suit was disregarded and instead the
proceedings were initiated by instituting the simplictor suit without complying with the
provisions of Order I Rule 8 CPC, therefore, hardly it could be said that it was a matter in which
due diligence was shown in filing the suit and thereafter, the same was prosecuted with good
faith. The ignorance of law for having disregarded the mandatory provisions of the law can hardly
in the instant case, furnished legitimate and valid basis to exclude the period spent in prosecuting
the suit; hence, in such circumstances on the institution of fresh suit by virtue of provisions of
Order XXIII Rule 2 CPC, the appellants/plaintiffs shall be bound by the law of limitation in a
same manner, as if the first suit has not been instituted, therefore, in view of the averments as
contained with regard to the accrual of cause of action referred to herein above, the fresh suit
instituted by the appellants was badly barred by limitation.

12. The case of Anwar Bibi Supra for the foregoing reasons is of no assistance to the contentions
put forth on behalf of the appellants by the learned counsel. In this precedent case, it was held by
Page No. 5 of 6
this Court that where the first suit was withdrawn under Order XXIII Rule 1 CPC, the provisions
of Section 14 of the Limitation Act, 1908 would not be applicable.

13. In our considered opinion, the beneficial applicability of the provisions of Section 14 of the
Limitation Act would not simply be dependent on the withdrawal of the suit with the permission
of the Court to institute a fresh suit on the same cause of action; rather, in view of the provisions
of Order XXIII Rule 2 CPC on the application of law of limitation as if the previous suit was not
instituted, the plaintiff has to show that the suit so instituted was within time but if the same was
hit by limitation, the burden would always be on the plaintiff to show that he had been with due
diligence prosecuting another civil proceedings founded upon the same cause of action and acted
in good faith in a Court which, for the defect of jurisdiction, or other cause of like nature is
unable to entertain it read with the explanations to Section 14 of the Limitation Act, to be entitled
to the exclusion of the period consumed in such proceedings, which in the instant case is
completely lacking, therefore, for the foregoing reasons, this appeal being without any substance
is dismissed. There shall be no order as to the costs.

(M.S.A.) Appeal dismissed.

Page No. 6 of 6
PLJ 2011 Karachi 52

Present: Muhammad Ali Mazhar, J.

NORMEEN SHAFI--Applicant

versus

AMJAD SHAFI and 5 other--Respondents

C.R.A. No. 27 and C.M.A. No. 146 of 2007, decided on 16.5.2011.

Cause of action--

----Right to judgment--Term cause of action refers to every fact which if traversed it should be
necessary for plaintiff to prove in order to support his judgment and which if not proved, give
defendant a right to judgment. [P. 58] A

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

----S. 20(c)--Cause of action arises in whole or in part--Essential facts which was necessary to
prove--Suit can be filed in a Court within local limits of whose jurisdiction cause of action arises
in whole or in part and in cases covered by S. 20, CPC the suit can be instituted where even a part
of cause of action arises regardless of place of residence of defendant. [P. 58, 59] B

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

----Ss. 16(d) & 17 and O. VII, R. 10--Suit for declaration, cancellation accounts--Executed
transfer deeds--Plaint was returned without notice--Territorial jurisdiction of trial Court--Courts
below failed to exercise its jurisdiction and without assigning any valid reason passed the order
for returning the plaint--Validity--Trial Court had failed to consider that plaintiff was claiming her
share which was a private limited company and not in Tures Motel--When property in which
plaintiffs claims her share was situated at Islamabad and defendants were resident of Islamabad,
therefore, suits would have been filed at Islamabad--Concurrent findings of facts were not
sacrosanct and can be examined in light of record of the case and if found suffering from legal
infirmities and jurisdictional errors, can be declared as illegal without jurisdiction, eventually, can
be set aside--If revisional Court finds any violation of provision of law or ignorance of law by
Court then it is vested with authority to set aside concurrent findings and substitute its own
findings. [P. 59 & 61] C & J

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

----S. 20--Cause of action--Claim from Court in whose jurisdiction head office of company was
situated--Validity--Corporation can be said to carry on business at head office or at the place
where it has a branch in respect of a cause of action which arises, wholly or in part, at the place
where branch office is situated--If no part of action arises at the place of branch office, the
corporation cannot be said to transact business at that place. [P. 60] D

Cause of action--

----Relief was required to prove for obtaining judgment--Not only the party seeking relief should
have a cause of action when transaction or alleged act is done but also at time of institution of
claim. [P. 60] E

Right to relief--

----When an action is brought--No right to seek remedy when right was infringed--Validity--Not
only a right has been infringed in a manner to entitle to a relief but also that when he approached
the Court the right to seek relief was in existence. [P. 60] F

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

----S. 20, O. VII, R. 10--Return of plaint--Cause of action--Question--Whether cause of action


wholly or in part arose within territorial of Court--Validity--All classes of suits could be filed in a

Page No. 1 of 6
Court within local limits of whose jurisdiction the cause of action arose either wholly or in part.
[P. 60] G

Cause of action--

----Every act which if traversed should be necessary for plaintiff to prove in order to support his
right to judgment and if no proved, would give defendant a right to judgment and for that purpose
only facts stated in plaint are to be considered to determine whether those facts state cause of
action or not. [P. 61] H

Words and Phrases--

----Cause of action--According to Black's Law Dictionary, Sixth Edition, cause of action means
the fact or facts which give a person a right to judicial redress or relief against another. [P. 61] I

Mr. Sundardas, Advocate for Applicant

Mr. Azhar Mehmood, Advocate for Respondents No. 2 to 5.

Date of hearing: 01.04.2011

Order

This Revision Application is brought to challenge the judgment passed by the VIth Additional
District Judge Hyderabad on 6.12.2006 in Misc. Civil Appeal No. 70 of 2005 and the order
passed by Vth Senior Civil Judge Hyderabad on 22.11.2005 in F.C Suit No. 93 of 2005, whereby,
the plaint was returned.

1. The facts forming the background of the case are that applicant/plaintiff filed a Suit for
Declaration, cancellation, Accounts and Permanent Injunction against the respondents/defendants
on the ground that she has 9% share holding (434 shares) in the Defendant No. 2, which is a
private limited company, having its registered office at Hyderabad within the territorial
jurisdiction of Trial Court. In January 2004, the Respondent/Defendant No. 1 who is real brother
of applicant offered to purchase the shares of the applicant/plaintiff and delivered four cross
cheques of Rs.12 lacs as part payment of the shares and obtained signature of applicant on blank
papers.

2. The Respondent/Defendants No. 3, 4 and 5 are not known to the applicant. The applicant
never entered into any agreement to sell with the Respondents No. 3 to 5. The Respondent No. 1
while betraying the trust of applicant and being in collusion with Respondents No. 3 to 5 prepared
transfer deeds of 434 shares of the Respondent No. 2, possessed/owned by applicant in favour of
Defendants No. 3 to 5 on the blank forms and papers on which the Respondent No. 1 had
obtained the signatures of applicant. In the suit, the applicant/plaintiff had prayed as under :--

(i) Declare that the plaintiff is the lawful owner of 434 shares of the Defendant No. 2
company.

(ii) Transfer deeds of 434 shares of plaintiff in favour of Defendants 3, 4 and 5 may be
adjudged void and may be ordered to be delivered up and cancelled or in the alternate the
Defendants 1, 3, 4 and 5 do pay the balance amount after ascertaining the correct value of the
shares of plaintiff.

(iii) Direct the defendants to declare all the assets in the name of the defendants and to give
complete accounts of the Defendant No. 2 i.e. Sindh Travel Services (Pvt.) Ltd. for the last five
years and make the payment of the amounts due to plaintiff.

(iv) Issue interim and ad interim injunction restraining the defendants from encumbering,
disposing off or creating any third party interest in all the assets of the Defendants No. 2 i.e.
Sindh Travel Services (Pvt.) Ltd. particularly Tures Motel on Plot on Muree Road Islamabad in
any manner whatsoever.

(v) Award any other relief deemed fit.

(vi) Award costs.

Page No. 2 of 6
3. On 25.10.2005, the applicant appeared in Court and verified the plaint on oath and sworn her
affidavit. The learned Trial Court heard the advocate for plaintiff on the point of jurisdiction and
fixed the matter for orders. It is further averred that the applicant's counsel approached many
times to the trial Court for knowing the order, ultimately, the trial Court announced the order on
22.11.2005 and returned the plaint to applicant. The applicant filed Misc. Appeal which was also
dismissed.

4. The Respondent No. 5 filed his counter affidavit in this revision application in which it was
inter alia contended that the plaint was returned without notice to him and Respondent Nos. 2 to
5. He denied all the allegations and also filed certain documents which were allegedly executed
by the applicant. According to the Respondent No. 5, the applicant sold and transferred her shares
to the Respondent No. 3 to 5 as far back as 30.1.2004 and also received the payment through pay
orders at Islamabad and after receiving the payments, the applicant executed Transfer Deeds.
After purchase of the shares, the Respondent No. 5 along with Respondent Nos. 3 and 4 applied
for the transfer of shares and the shares were transferred in their names. At the time of transfer of
shares, the applicant also wrote letters to Chairman NAB, Deputy Registrar Companies, SECP,
Chairman CDA, Member Income Tax, All Pakistan Women Associations, Hyderabad, Secretary
Hyderabad press Club and informed that all disputes had been settled and she withdrew all her
letters previously written by her. Since January 2004, the applicant is neither shareholder nor
Director even not a member of the company.

5. On 16.3.2005, the applicant had filed a winding up petition in this Court but the same was
withdrawn on 1.2.2006. All the documents were signed at Islamabad, the Respondent resides at
Islamabad, the cause of action, if any accrued at Islamabad and fraud as alleged, if any committed
at Islamabad by the Respondent No. 1, hence the Trial Court had no jurisdiction to entertain the
suit and it was rightly returned.

6. The learned counsel for the applicant argued that both the Courts below have ignored the
relevant law and the facts of the case. The office of the Respondent No. 2 is situated at Hyderabad
which is within the territorial jurisdiction of Trial Court. He further argued that trial Court failed
to exercise its jurisdiction and without assigning any valid reason passed the order for returning
the plaint and the learned appellate Court has also failed to consider the law and affirmed/upheld
the order passed by the trial Court.

7. He further argued that the prayer clause is not in respect of property which is situated outside
the jurisdiction of the learned Trial Court. The provisions of Sections 16(d) and 17 CPC are not
applicable to the facts of the case. The learned Appellate Court committed illegality in applying
the said provisions and dismissing the appeal on its erroneous assumptions. The suit of the
applicant was in respect of 434 shares of Defendant No. 2 Company which has its registered
office at Hyderabad.

8. The learned counsel appearing for the Respondents No. 2 to 5, reiterated the pleas raised in the
counter affidavit. He argued that the applicant has already sold out and transferred her shares and
also received the payment and thereafter, she had executed Transfer Deeds. Since January 2004,
the applicant is neither shareholder nor Director even not a member of the company. He further
averred that all the documents were signed at Islamabad, the cause of action, if any accrued at
Islamabad, hence the Trial Court had rightly returned the plaint and the learned appellate Court
has also rightly affirmed and upheld the order. In support of his arguments, he relied upon
following case laws:--

1. 2005 CLC 1659 (United Distribution Pakistan Ltd. v. Al-Syed Agrochemicals Services
and others). In this case the learned Single Judge of this Court held that suit to be instituted where
defendants reside or cause of action arises. Plaintiff according to S.20 CPC, has three options to
sue, (a) where the defendant or each of the defendants actually resides, caries on business or
personally works for gain or (b) in case there are more than one defendants any of them resides,
carries on business or personally works for gain or (c) at the place where the cause of action,
wholly or in part, arises. Where the defendants are neither residing in place at "K" where the
plaintiff lived, nor they are carrying on business or having their sub-office at place "K", suit can
be filed where the cause of action wholly or in part, arises. Explanation II of S.20, CPC is not
applicable to such a case.

2. 2010 CLC 389 (Messers Apollo Textiles Mills Ltd. vs. Mian Farhat Iqbal). In this case,
the learned Single Judge of this Court held that plaintiff filed a suit for recovery of money at
place "K" where defendant was neither residing nor he was doing any business. Agreement relied
upon by plaintiff against defendant was not arrived at place "K" nor any payment was made there.
Plaintiff filed suit at place "K" on the basis of issuance of notices to defendant and also issued
delivered/gate passes where his registered office was located. In determining whether any part of
cause of action had accrued, averments of plaint were to be read with relief sought by a party in
Page No. 3 of 6
the suit but such reading of plaint should be meaningful and rationale to the controversy. Issuance
of alleged notices to defendant and preparation of delivery/gate passes from registered office of
plaintiff at place "K" could not be considered as accrual of cause of action to plaintiff within
territorial limits of Court at place "K". High Court returned the plaint to plaintiff for presenting
the same to the Court in which suit should have been instituted. Application was allowed
accordingly.

9. After hearing the pros and cons of the matter, I have reached to the conclusion that in the
plaint the plaintiff/applicant has only claimed the ownership of 434 shares of the
Defendant/Respondent No. 2 with the further prayer for cancellation of transfer deeds or in
alternate the Respondent Nos. 1, 3, 4 and 5 be directed to pay the balance amount after
ascertaining the correct value of the shares. The applicant has also prayed for the declaration
against the defendants to declare all the assets in the name of defendants and to give complete
account of the Defendant/Respondent No. 2 i.e. Sindh Travel Services (Pvt.) Ltd. for the last five
years and make the payment of the amount due to the plaintiff/applicant. It is clearly transpiring
from the contents of the plaint that the plaintiff/applicant had only claimed the declaration as to
her ownership of the shares and permanent injunction but no declaration or any right was sought
for Tures Motel which is situated at Islamabad and owned by Respondent No. 2, the learned trial
Court suo moto returned the plaint without issuing notices to the defendants and the main cause
of returning the plaint as mentioned in the order is as under:--

"After perusal of plaint it reveals that the shares 434 of plaintiff in Tures Motel on plot
admeasuring 10000/-sq.yards near Rawal Dam Muree Road Islamabad free from all
encumbrances is owned and possessed by Defendant No. 2. The market value of the property in
the year 2003 was more than Rs. 100 million is situated Muree Road Islamabad the Province
Punjab, therefore, this Court has got no jurisdiction to entertain or proceed with this matter."

10. On the basis of above findings the plaint was returned keeping in view the provision of Order
VII, Rule 10 CPC. Similarly the learned Appellate Court relied upon Section 16(d) and Section
17 CPC and dismissed the appeal on the basis of following findings:

"In the instant suit the suit property as mentioned in Para-2 of the plaint in Suit No. 93 of 2005 is
situated near Rawal Dam Muree Road Islamabad, in which the plaintiff/appellant claims her
shares, which according to the contents of plaint were sold by the Defendant/Respondent No. 1 in
favour of Defendants/ Respondent Nos. 3 to 5, who are shown in the plaint as residents of
Islamabad. In the circumstances, when the property, in which the plaintiff/appellant claims her
shares, is situated at Islamabad and the Defendants/Respondents No. 1 to 5 are residents of
Islamabad, which is not within jurisdiction of trial Court. The suit should have been filed at
Islamabad."

11. The term cause of action refers to every fact which if traversed it should be necessary for the
plaintiff to prove in order to support his judgment and which if not proved, give the defendant a
right to judgment. It is the bundle or totality of essential facts which is necessary for the plaintiff
to prove before he can succeed. In accordance with clause "c" of Section 20 of CPC, the suit can
be filed in a Court within the local limits of whose jurisdiction, the cause of action arises in
whole or in part and in cases covered by this section, the suit can be instituted where even a part
of the cause of action arises regardless of the place of residence of the defendant. It is an admitted
fact that the head office of Respondent No. 2 is situated at Hyderabad and in Paragraph 12 of the
plaint in question, the plaintiff has asserted that the Defendant Nos. 1 and 2 have failed to pay the
rightful share of the rents, profits, dividends and income due to the plaintiff since July 2001 and
they are liable to account for the same.

12. In Paragraph 15 of the plaint, the plaintiff has described the cause of action which allegedly
accrued to the plaintiff after 1st July 2001, when the plaintiff was denied her rightful share in the
profits of Defendant No. 2 and in prayer clause III, the plaintiff has prayed for the direction
against the defendants to declare all the assets in the name of defendants and to give complete
accounts of the Defendant No. 2 for last five years and made the payment of the amount due to
the plaintiff. It is also an admitted fact that the plaintiff had filed J.M No. 07 of 2005 at the
Principal seat of this Court which was withdrawn on 1.2.2006 by the plaintiff on the ground that
she has filed a civil suit at Hyderabad which has been dismissed and appeal is pending and she
stated before the Court that she is going to avail remedy in the appeal and on this ground J.M was
not pressed, the copy of order is available as annexure "R-20" which is attached with the counter
affidavit filed by Respondent No. 5 in this revision application.

13. The plaint shows beyond any shadow of doubt that the plaintiff did not claim 434 shares in
the Tures Motel rather her claim of share holding was related to Defendant No. 2 company but
the trial Court in its order dated 22.11.2005 observed that the Tures Motel owned and possessed
by Defendant No. 2 is situated at Islamabad therefore, he has no jurisdiction to entertain or
Page No. 4 of 6
proceed the matter. The Trial Court has failed to consider that the plaintiff was claiming her share
in Defendant No. 2 which is a private limited company and not in Tures Motel. Similarly the
Appellate Court has also observed that when the property in which the plaintiffs/appellant claims
her share is situated at Islamabad and the Defendant/Respondent Nos. 1 to 5 are resident of
Islamabad, therefore, the suit should have been filed at Islamabad.

14. Both the Courts below have failed to consider that the plaintiff was not claiming her 434
shares in the Tures Motel but her claim was against the company and other defendants in the suit.
Though the Tures Motel is owned by the Respondent No. 2 company but for the purposes of
deciding the jurisdiction for filing the suit, the Situation/location of Tures Motel is not the alone
criteria to decide the matter. The head office of the company which owns the Tures Motel is
situated at Hyderabad in which besides claiming the shares, the plaintiff had also lodged her
claim regarding the unpaid profits/dividends which could only be claimed from the Court in
whose jurisdiction the head office of the company is situated. Explanation II attached with
Section 20 C.P.C, provides that a corporation shall be deemed to carry on business at its sole
principal office in Pakistan or, in respect of any cause of action arising at any place where it has
also a subordinate office, at such place. In the judgment reported in 1981 SCMR 494, the
Honorable Supreme Court has held that an Explanation is enacted by the Legislature to explain
what otherwise would be doubtful or ambiguous. To the extent that it explains a stipulated
situation its function is definitive inasmuch as it clarifies or defines the legal position in a
supposed state of facts. It is therefore, clear that the corporation can be said to carry on business
at the head office or at the place where it has a branch in respect of a cause of action which arises,
wholly or in part, at the place where the branch office is situated. If no part of action arises at the
place of the branch office, the corporation cannot be said to transact business at that place. This is
the only possible interpretation of Explanation II.

15. At this juncture, I would like to refer my own judgment reported in 2010 CLC 1603,
(Muhammad Shabbir versus Mrs. Faraha Bibi), in which I have discussed that the word "cause of
action" means bundle of facts which if traversed, a suitor claiming relief is required to prove for
obtaining judgment. Nevertheless, it does not mean that even if one such fact, a constituent of
cause of action is in existence, the claim can succeed. The totality of the facts must co-exist and if
anything is wanting the claim would be incompetent. A part is included in the whole but the
whole can never be equal to the part. It is also well understood that not only the party seeking
relief should have a cause of action when the transaction or the alleged act is done but also at the
time of the institution of the claim. For example, there may be a case where at the time when an
action is brought, there is no right to seek the remedy though the remedy was available when the
right was infringed. A suitor is required to show that not only a right has been infringed in a
manner to entitle him to a relief but also that when he approached the Court the right to seek the
relief was in existence. Similarly the Privy Council in another case had summed up that cause of
action means every fact which will be necessary for the plaintiff to prove if traverse in order to
support his right to judgment. It has no relation to the defence that may be set up nor does it
depend upon the character of the relief prayed. Similarly, in my another judgment reported in
2010 CLD 760. (Pakistan Kuwait Investment Company (Pvt.) Ltd. versus Saadullah Khan &
Brothers). I have held that for the purposes of Order, VII, Rule 10 and Section 20, C.P.C., it is
very much relevant to decide whether cause of action wholly or in part arose within the territorial
jurisdiction of the Court. It is also clear that all classes of suits could be filed in a Court within the
local limits of whose jurisdiction the cause of action arose either wholly or in part. Term "cause
of action" refers to every act which if traversed should be necessary for the plaintiff to prove in
order to support his right to judgment and if not proved, would give the defendant a right to
judgment and for that purpose only the facts stated in the plaint are to be considered to determine
whether those facts state cause of action or not. Even a fraction of cause of action is a part of
cause of action. According to Black's Law Dictionary, Sixth Edition, cause of action means the
fact or facts which give a person a right to judicial redress or relief against another. The legal
effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts
which would entitle party to sustain action and give him right to seek a judicial remedy in his
behalf.

16. Since the applicant/plaintiff prayed in the suit that the transfer, deed of 434 shares be
adjudged void and may be ordered to be delivered up and cancelled and also sought directions to
produce the complete accounts of the Sindh Travel Services (Pvt.) Ltd. and also alleged in the
plaint that she has not been paid dividend by the said company. If the suit is decreed then it would
be the responsibility of company to make necessary changes in its record and to restore the share
register in its original position in case the Court orders for the cancellation of transfer deeds and
restoration of plaintiffs shareholding. Another prayer is also against the company for the
production of accounts to make payments of the amount due to the plaintiff, therefore, for all
intent and purposes and in all fairness, I am of the firm view that the plaintiff has a cause of
action against the company and keeping in view, Clause (c) of Section 20 C.P.C. read with

Page No. 5 of 6
Explanation-II, the suit was rightly instituted in the trial Court and both the orders passed by the
Courts below are liable to be set aside.

17. The case law relied upon by the learned counsel for the respondent are distinguishable as in
no case, the question of any payment of unpaid profit or dividend was involved nor the plaintiff in
that cases sought directions for filing the details of assets and accounts of company nor sought
cancellation of share transfer deeds.

18. At this point in time, I would also like to hold that the concurrent findings of facts are not
sacrosanct and can be examined in the light of the record of the case and if found suffering from
the legal infirmities and jurisdictional errors, can be declared as illegal without jurisdiction,
eventually, can be set aside. If revisional Court finds any violation of provision of law or
ignorance of law by Court then it is vested with the authority to set aside concurrent findings and
substitute its own findings. The Honorable Supreme Court in its judgment reported in 2010
SCMR 1630, (Sultan Muhammad and another versus Muhammad Qasim and others), held that
the concurrent findings of three Courts below on a question of fact, if not based on misreading or
non-reading of evidence and not suffering from any illegality or material irregularity affecting
the merits of the case, are not open to question at the revisional stage, but where on record the
position is contrary to it, then the revisional Court in exercise of its jurisdiction under Section
115, C.P.C. or Supreme Court in exercise of jurisdiction under Article 185(3) of the Constitution,
are not denuded of their respective powers to interfere and upset such findings. In another
judgment on the same point reported in 2004 SCMR 1668, (Habib Khan versus Mst. Bakhtmina
& others), the Honorable Supreme Court held concurrent findings of facts of the Courts below
cannot be reversed in exercise of revisional jurisdiction as conferred upon the High Court under
Section 115, C.P.C. but it should not be ignored that such concurrent findings cannot be termed as
"sacrosanct" and can be reversed, if the same are based on insufficient evidence, misreading of
evidence, non-consideration of material piece of evidence, erroneous assumption of facts and
patent error of law.

19. The upshot of this discussion is that the impugned judgment dated 6th December 2006
passed by the VIth learned Additional District and Session Judge, Hyderabad in Misc. Civil
Appeal No. 70/2004 and the order dated 22nd November 2005, passed by the Vth learned Senior
Civil Judge, Hyderabad in FC. Suit No. 93/2005, both are set aside. The matter is remanded to the
trial Court with the direction to decide the suit on merits. Since it is an old litigation, therefore, it
is expected that the learned trial Court will decide the suit on merits within a period of six
months.

Revision Application disposed of in the above terms along with listed application.

(R.A.) Application disposed of.

Page No. 6 of 6
PLJ 2011 Karachi 21

Present: Muhammad Ali Mazhar, J.

TRUSTEES OF THE PORT OF KARACHI--Plaintiff

versus

M/s. FATIMA SUGAR MILLS LIMITED and 2 others--Defendants

Suit No. 233 of 2007 and C.M.As. No. 4332, 1291 of 2008 and 5759, 5760, 5761 of 2009,
decided on 25.5.2011.

Limitation Act, 1908 (IX of 1908)--

----S. 14(1)--Civil Procedure Code, (V of 1908), S. 151--Suit for recovery of liquidated damages
can be filed within three months from date of order--Question of--Whether bank guarantee can be
discharged or not--Validity--If suit is not filed within a period of three months, then the order for
extension of bank guarantee in respect of liquidated damages would stand vacated automatically.
[P. 24] A

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

----S. 7(4)--Limitation Act, (IX of 1908)--Civil Procedure Code, (V of 1908), S. 151--Suit for
recovery liquidated damages--Essential for filing a suit under Financial Institution (Recovery
Finances) Ordinance--Question of--Whether Bank Guarantee can be discharged or not--Time
spent in Banking Court would be excluded for limitation purpose and delay any can be condoned
in refilling the case in High Court--Limitation for filing the suit was not fixed but only passed the
order that if suit was not filed within period of three months, then bank guarantee furnished
would be automatically discharged--Validity--Karachi Port Trust had to file suit for recovery of
liquidated damages and since period of bank guarantee was extended till adjudication of the suit,
if any, therefore, in order to expedite the proceedings and to ensure the expeditious disposal,
Divisional Bench allowed three months time for filing the suit with further caution that if no suit
was filed within stipulated period, the banking guarantee will be discharged automatically.
[P. 29] B

Limitation Act, 1908 (IX of 1908)--

----S. 3--Limitation for filing suits--Period of limitation--Limitation has not been set up as a
defence--Question of--Because of the mandatory nature of S. 3 of Limitation Act, Court before
which any suit, appeal or application instituted, preferred or made is obliged to dismiss the same
although the question of limitation may have not been set up as a defence. [P. 29] C

Cause of action--

----Cause of action had arisen from time to time--Validity--Plaintiff can file a suit for recovery of
liquidated damages, within three months of its judgment. [P. 29] D

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

----S. 151--Financial Institution (Recovery of Finances) Ordinance, 2001, S. 7(4)--Limitation Act,


(IX of 1908) S. 14(i)--Suit for recovery in Banking Court was filed under bonafide belief--
Validity of bank guarantee--Contention--Whether bank guarantee should be discharged as
plaintiff failed to institute the suit within stipulated time--Controversy--Interest of justice--Suit
was filed in Banking Court due to bonafide mistake--Validity--Controversy between the parties
cannot be resolved without adducing evidence--Limitation for filing suit will be considered or
treated from date of presentation of the plaint in High Court and during period when suit was
pending in Banking Court will not be counted--All controversy requires evidence and in order to
sift grain from chaff, it would be in interest of justice that instead of outrightly discharging the
bank guarantee, Court would frame specific issue covering the present controversy. [P. 30]
E

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

Page No. 1 of 6
----S. 151--Controversy raised in CMA moved under S. 151, CPC cannot be decided without
evidence. [P. 31] F

Limitation Act, 1908 (IX of 1908)--

----S. 14--Computing the limitation prescribed for any suit--Defect of jurisdiction--It only
germane to computing the limitation prescribed for any suit the time during which plaintiff has
been prosecuting with due diligence another civil proceedings whether in a Court of first instance
or in a Court of appeal against the defendant shall be excluded where proceedings is founded
upon the same cause of action and is prosecuted in good faith in a Court which, from defect of
jurisdiction or other cause of a like nature unable to entertain it. [P. 31] G

Limitation Act, 1908 (IX of 1908)--

----S. 14(1)--Suit for recovery of money--Barred by time--Discharge of bank guarantee--Suit was


filed wrongly in Banking Court--Failed to file the suit within stipulated period from the
judgment--Limitation for filing the suit of different nature and upon different causes of actions--
Scope of limitation--Validity--An important characteristic of case cannot be lost sight that
Divisional Bench of High Court did not fix the cut off point of limitation for filing the suit but
only allowed an opportunity to commence the suit within a period of three months that in its
judgment Bank guarantee was extended, therefore, time granted by D.B. cannot be considered the
time allowed under Limitation Act for filing the suit. [P. 31] H

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

----S. 7(4)--Limitation Act, (IX of 1908), S. 14(1)--Suit for recovery in Banking Court--Essential
for filing a suit--Question of--Whether suit for recovery in Banking Court was filed under
bonafide intention or with sheer negligence or plaintiff was prosecuting the suit in banking Court
in good faith--Validity--Plaintiff in all fairness is entitled to lead evidence to prove its bonafides
and instead of technical knockout, it would be in the interest of justice to decide the case on its
own merits. [P. 31] I

Mr. Safdar Mehmood, Advocate for Plaintiff.

Mr. Shaiq Usmani, Advocate for Defendant No. 1.

Date of hearing: 2.3.2011

Order

By this order I intend to dispose off C.M.A. No. 4332/2008 filed by the plaintiff under Section
14(l) of the Limitation Act and C.M.A. No. 1291/2008, filed by the Defendant No. 1 under
Section 151 C.P.C. The plaintiff has filed this suit for recovery of money and prayed as follows:--

(a) Decree the suit for Rs.3,855,595.00 in favour of the plaintiff against the defendants
jointly and severally with further interest/mark-up 14% per annum from 1st January 2007, as
mentioned in the Bank Guarantee till payment.

(b) Award costs of the suit to the plaintiff. and

(d) Grant any other relief(s) to the plaintiff which this Honourable Court may deems fit and
proper

2. The facts forming the background of the present suit are that the plaintiff is a statutory
organization functioning under the Karachi Port Trust (KPT) Act, 1886. The Defendant No. 1 is a
company engaged in the business of import and export. The Defendant No. 1 imported certain
equipments and machinery by establishing Letter of Credit through Defendant No. 2. The release
of the goods at the Port at Karachi became subject matter of litigation. However, the customs
authorities were ordered by the Lahore High Court to allow release of the machinery/goods
subject to submission of a Bank Guarantee in favour of the customs department by the Defendant
No. 1. Consequently, the defendants submitted Bank Guarantee for Rs. 3.5 Million and got the
goods released. At the time of final hearing, the Lahore High Court held that it has no territorial
jurisdiction to decide the petition and returned it to Defendant No. 1.

3. The plaintiff vide letter dated 19th February, 2004 called upon the Defendant No. 1 to pay the
amount. The Defendant No. 1 did not make the payment but filed a Constitutional Petition No. D-
373 of 2004 in this Court at Karachi on 3rd March, 2004 and got stay order. This constitutional
Page No. 2 of 6
petition was later dismissed vide order dated 18th February 2005, the order was challenged in the
Supreme Court then the matter was remanded to the Sindh High Court. On remand, this Court
heard the petition and vide order dated 27th September 2006, set aside the amount claimed on
account of liquidated damages observing that KPT may file a suit for recovery of liquidated
damages (mentioned in the Bank Guarantee) within three months but did not set aside the amount
of storage charges and demurrage. This Court in the order also extended the validity period of the
Bank Guarantee.

4. The Defendant No. 1 has filed C.M.A No. 4332/2008, under Section 151 CPC in which it is
inter alia contended that the divisional bench of this Court vide its judgment dated 27.9.2006
passed in C.P. No. D-373 of 2004 specifically directed that the suit for recovery of liquidated
damages be filed within three months from the date of order. The Court had further observed in
the order that if suit is not filed within a period of three months, then the order for extension of
bank guarantee in respect of liquidated damages shall stand vacated automatically.

5. It is further averred in the application that instead of filing the suit in this Court, the plaintiff
had filed a suit for recovery in the Banking Court when they had neither any relationship of
borrower nor of a customer with the Defendant No. 3 which is essential for filing a suit sunder
Financial Institution (Recovery of Finances) Ordinance 2001. The plaintiff negligently filed the
suit in the Banking Court and also sought return of their own plaint through filing an application
and the Banking Court itself did not do so of its own volition. The suit thus having been filed in
the wrong jurisdiction due to plaintiffs' negligence and its re-presentation in this Court on
24.02.2007 does not make the suit a continuation of the original suit filed in the Banking Court on
21.12.2006. The suit was filed on 24.2.2007 in this Court i.e. about five months after the order
dated 27.9.2006.

6. The plaintiff filed its counter affidavit in which it is inter alia contended that the suit was filed
with bona fide intention in the Banking Court at Karachi on 21st December 2006, within the time
granted by the High Court. The reason of filing the suit in the Banking Court was to recover bank
guarantee which had become a subject matter in C.P.No. D-373 of 2004 filed by Defendant No. 1.
The suit was filed and received by the Registrar, Banking Court-I, Karachi on 21st December
2006 and numbered as Suit No. 8 of 2007. The same remained there till 12th January 2007,
whereafter it was sent to Banking Court No. II which received the case file on 12th January 2007,
and renumbered it as Suit No. 3 of 2007. The Banking Court asked the plaintiff to file this plaint
in the Sindh High Court after submitting an application for return of plaint. The Banking Court
returned the plaint thereafter it was filed in this Court. The Defendant No. 1 had filed the written
statement almost after one year on 26th January 2008 but did not take any plea that bank
guarantee is liable to discharged due bona fide error of instituting the suit in Banking Court. It is
further mentioned in the Courter affidavit that at this stage issues need to be settled for the trial in
which the present controversy can be reduced in a separate issue. After adducing evidence, it will
be determined whether the Bank Guarantee can be discharged or not. The plaintiff had filed the
suit in the Banking Court keeping in view Section 7(4) of the Financial Institution (Recovery of
Finance) Ordinance, 2001.

7. The plaintiff has also filed C.M.A No. 4332/2008, under Section 14(1) of Limitation Act in
which it is prayed that the time spent in the Banking Court would be excluded for limitation
purpose and the delay if any may be condoned in refilling the case in this Court. It is reiterated in
the supporting affidavit that the Registrar, Banking Court-I Karachi received the plaint. The same
remained there till 12th January 2007, thereafter, the Banking Court asked the Plaintiff to file this
plaint in this Court after submitting an application for return of plaint.

8. In response to this application, the Defendant No. 1 has filed its counter affidavit and denied
that suit was filed with bona fide intention in the banking jurisdiction. This Court in
Constitutional petition specifically directed that the suit for recovery of liquidated damages be
filed within three months. The Banking Court had no jurisdiction to entertain the suit of the
plaintiff under Financial Institution (Recovery of Finances) Ordinance, 2001. It is obvious that
the plaintiff negligently filed the suit in the Banking Court and then sought return of their own
plaint through filing an application. The suit had been filed in the wrong jurisdiction due to
plaintiffs' negligence. The instant suit has been filed for the alleged recovery of liquidated
damages against the Defendant No. 1, therefore, filing suit in Banking Court was sheer
negligence on the part of the plaintiff despite having knowledge of nature of alleged recovery
which is a case of purely civil nature for which only this Court has jurisdiction.

9. Heard the arguments of learned counsel. The learned counsel for the Defendant No. 1 argued
his application moved under Section 151 CPC on the sole ground that the recovery notice dated
19.2.2004 issued by the plaintiff was challenged in CP No. D-373 of 2004 which was decided on
27.9.2006 and the learned divisional bench of this Court held that the KPT cannot on its own
enforce recovery of liquidated damages in spite of such stipulation in the bank guarantee. The
Page No. 3 of 6
KPT may file a suit for recovery of liquidated damages and the notice dated 19.2.2004 to the
extent of the payment of liquidated damages was struck down with further clarification that
striking down of the notice for recovery of liquidated damages shall not affect the right of KPT to
file the suit for the recovery of liquidated damages. It was further ordered that the bank •
guarantee shall remain in force and its validity was extended till final outcome of the suit of KPT.
The divisional bench further observed that if the suit is not filed within three months, then the
order for extension of bank guarantee in respect of liquidated damages shall stand vacated
automatically. The learned counsel further argued that since the plaintiff had wrongly instituted
the suit in the Banking Court and thereafter on its motion applied for return of plaint and then
instituted the suit in this Court therefore, the period in which the suit had remained pending in the
Banking Court and thereafter the plaint was returned and instituted in this Court will not amount
a continuation of original proceedings and for the purposes of filing the suit, the actual date on
which the suit was presented in this Court will be treated the actual date of institution of this suit
which is much after three months granted by this Court, therefore, in all fairness, the plaintiff is
entitled for the discharge of bank guarantee.

10. The learned counsel on the application moved under Section 14 of the Limitation Act by the
plaintiff argued that the application is not maintainable as the plaintiff has failed to demonstrate
that the suit in Banking Court was being prosecuted in good faith therefore, the plaintiff is not
entitled for the benefit of exclusion of time of proceeding continued in a Court without
jurisdiction.

11. Conversely, the learned counsel for the plaintiff argued that under a bona fide mistake and
without any negligence on the part of plaintiff a suit was filed in the Banking Court under the
bona fide belief that it has been rightly instituted under the provisions of Financial Institution
(Recovery of Finances) Ordinance, 2001, and as soon as it came into the knowledge of plaintiff,
the plaintiff had moved an application under Order VII, Rule 10 CPC in the Banking Court-II at
Karachi in which it was clearly mentioned that under a bona fide mistake regarding the
jurisdiction, the plaint may be returned to the plaintiff for presentation the same before the Court
having jurisdiction. This application was moved on 20.2.2007 and on the same date, the learned
Presiding Officer, Banking Court-II returned the plaint on 20.2.2007 and without wastage of any
time, the suit was instituted in this Court on 24.2.2007. The learned counsel for the plaintiff
further argued that the plaintiff was prosecuting the suit in the banking, Court with due diligence
and immediately upon knowing the defect of jurisdiction, an application was moved under Order
VII, Rule 10 CPC for the return of plaint, therefore, separate application has been moved under
Section 14 of the Limitation Act with the prayer that the time consumed in the Banking Court
may be excluded. In support of his arguments, learned counsel for the plaintiff relied upon the
following case law:--

1. 1992 CLC 22 (Muhammad Sharif Khan v. Mst. Manzoora Begum). In this case, it was
held that provision of S.14, Limitation Act, 1908, being a mandatory provision of law, its benefit
could be given to a party concerned on a mere reference to the subject-matter contained therein
which would be sufficient for the Court to consider being duty bound, even though S. 14,
Limitation Act, 1908, was not specifically mentioned by the party concerned, there being no
separate application for the purpose. Plaintiff having been pursuing proceedings before District
Judge and High Court under bona fide mistake of law, period of limitation should have been
reckoned afresh and delay should have been condoned.

2. 1997 CLC 768 (Muhammad Ali v. Imdad Hussain). In this case, the learned single judge
of Lahore High Court held that question of pecuniary jurisdiction and trial by a wrong forum
would amount to technical error justifying benefit of S.14, Limitation Act, 1908 to be extended to
affected litigant. Plaintiff alone being not responsible for pursuing his remedy in wrong Court but
defendant and Court equally were responsible for continuation of lis in wrong forum, plaintiff
would be entitled to benefits of S.14, Limitation Act, 1908.

3. NLR 1996 CLJ 31 (Sher Muhammad, etc v. Ismatullah, etc). In this case, it was held that
conditions which are necessary to exclude time consumed in proceedings before a wrong forum
are: (i) that proceedings are founded on same cause of action, and (ii) that earlier proceedings
were prosecuted in good faith in a Court which for want of jurisdiction, or other cause of a like
nature did not entertain earlier proceedings. Court should not refuse benefit of S.14 merely
because plaintiff does not file application under Section 14 or does not show any ground for
exemption from limitation in plaint. Application under Section 14 can be considered by trial
Court even if not specifically mentioned in plaint. Benefit of S. 14 is extended only where plaint
returned for want of jurisdiction is filed in Court of competent jurisdiction. S. 14 would not apply
when plaintiff instead of filing returned plaint files a fresh suit.

12. After hearing the prose and cons advanced by the learned counsel for the parties I have
reached to the conclusion that the learned divisional bench in its order did not fix any limitation
Page No. 4 of 6
for filing the suit but only passed the order that if suit is not filed within a period of three months,
then the bank guarantee furnished by the defendant would be automatically discharged. The
condition for filing the suit within a period of there months was imposed merely for the reason
that in the order, the learned divisional bench held that for the purposes of recovery of liquidated
damages, the KPT has to file a suit for recovery of liquidated damages and since the period of
bank guarantee was extended till adjudication of the suit, if any, therefore, in order to expedite the
proceedings and to ensure the expeditious disposal, the learned divisional bench allowed three
months time to KPT for filing the suit with further caution that if no suit is filed within the
stipulated period, the banking guarantee will be discharged automatically.

13. The limitation for filing suits is governed by the Limitation Act and under Section 3 of the
Limitation Act, it is clearly provided that subject to provisions contained in Sections 4 to 25 every
suit instituted, appeal preferred and application made after the period of limitation, described,
therefor by the first schedule shall be dismissed, although limitation has not been setup as a
defence. There is unanimity of the view among the superior Courts that because of the mandatory
nature of Section 3 of the Limitation Act, the Court before which any suit, appeal or application
instituted, preferred or made is obliged to dismiss the same although the question of limitation
may have not been setup as a defence.

14. In the present case, the plaintiff in paragraph 12 of the plaint has described the cause of
action and it is stated that the cause of action had arisen on number of dates from time to time and
has finally arisen on 27th September 2006 when this Court in constitutional petition observed that
the plaintiff may file a suit for recovery of liquidated damages within three months of its
judgment. In fact the cause of action was accrued to the plaintiff on 19.2.2004 when the letter was
written to the Manager Allied Bank of Pakistan in which it was stated that as per set procedure,
the bank guarantee cannot be returned unless KPT dues are cleared and in the same letter a
request was made to ABL for the pay order in the sum of Rs.5,690,791/- including liquidated
damages as on 20.2.2004. It is the same letter which was the subject matter of constitutional
petition also in which the learned divisional bench while setting aside the demand of liquidated
damages and extending the validity of bank guarantee, directed the plaintiff to file suit for
recovery of liquidated damages within three months.

15. The plea of the plaintiff is that the suit for recovery in the Banking Court was filed under the
bona fide belief but subsequently on its own application, the plaint was returned and suit was
instituted in this Court. The Defendant No. 1 has not filed any application under Order VII, Rule
11 CPC with the prayer that the suit is barred by the limitation but in the application under
Section 151 CPC only a plea has been taken that the bank guarantee is liable to be discharged as
the suit was not filed in this Court within the stipulated period allowed by the divisional bench in
its judgment.

16. The bone of contention between the parties is whether the bank guarantee should be
discharged as the plaintiff failed to institute the suit within the stipulated time, on the contrary the
plaintiff takes the position that the suit was filed in the Banking Court initially due to bona fide
mistake and immediately upon returning the plaint the suit was rightly filed in this Court. The
controversy between the parties cannot be resolved without adducing evidence as issue raised is a
issue of mix question of law and fact in which both parties must be allowed to lead evidence and
to prove whether the suit in Banking Court was filed due to bona fide mistake or the return of
plaint by the baking Court will not be treated continuation of proceedings and limitation for filing
suit will be considered or treated from the date of presentation of the plaint in this Court and
during the period when the suit was pending in the Banking Court will not be counted. All this
controversy requires evidence and in order to sift grain from chaff, it would be in the interest of
justice that instead of outrightly discharging the bank guarantee, the Court should frame specific
issue covering the present controversy. Since the matter is also being fixed for settlement of
issues, therefore, in order to provide fair opportunity to both the sides, a separate issue may be
framed.

17. The plaintiff and Defendant No. 1 both have filed their proposed issues and I could have
easily settled the issues but three miscellaneous applications filed by Defendant Nos. 2 and 3 are
pending adjudication including an application under Order IX, Rule 7 CPC for setting aside the
order dated 24.3.2008 whereby the Defendant Nos. 2 and 3 were declared exparte therefore, prior
settlement of issues the disposal of applications filed by Defendant Nos. 2 and 3 is also necessary.
Since no body was present for the Defendant Nos. 2 and 3 on 2.3.2011, therefore, by consent the
hearing of Civil Misc. Applications listed at Serial Nos. 2, 3, 5 and settlement of issues was
deferred.

18. The bottom line of this discussion is that the controversy raised by the Defendant No. 1 in
CMA No. 1291 of 2008 moved under Section 151 CPC cannot be decided without evidence. So
far as the CMA No. 4332 of 2008 moved under Section 14 of Limitation Act is concerned, I am
Page No. 5 of 6
of the firm view that it only germane to the computing the limitation prescribed for any suit the
time during which the plaintiff has been prosecuting with due diligence another civil proceedings
whether in a Court of first instance or in a Court of appeal against the defendant shall be excluded
where the proceedings is founded upon the same cause of action and is prosecuted in good faith
in a Court which, from defect of jurisdiction or other cause of a like nature is unable to entertain
it.

19. The Defendant No. 1 in his application or the written statement nowhere stated that the suit is
barred by time but main reason for claiming the discharge of bank guarantee is that the plaintiff
wrongly filed the suit in Banking Court and failed to file the suit in this Court within three
months from the date of divisional bench judgment. The limitation for filing the suit of different
nature and upon different causes of actions is always regulated and governed by means of the
Limitation Act, therefore, an important characteristic of the case can not be lost sight that the
learned divisional bench of this Court did not fix the cutoff point of limitation for filing the suit
but only allowed an opportunity to commence the suit within a period of three months for the
reason that in its judgment, the bank guarantee was extended, therefore, the time granted by the
divisional bench can not be considered the time allowed under the Limitation Act for filing the
suit.

20. Since I have already observed that the burning question cannot be decided without evidence.
A matter of concern whether the suit was filed in the Banking Court with bona fide intention or
with sheer negligence or the plaintiff was prosecuting the suit in the Banking Court in good faith.
In all conscience, this is mix question of a law and fact, therefore, in my view, the plaintiff in all
fairness is entitled to lead evidence to prove its bona fides and instead of technical knockout, it
would be in the interest of justice to decide the case on its own merits. At this juncture, I would
like to quote a landmark judgment reported in PLD 1963 Supreme Court 382 (Imtiaz Ahmed v.
Ghulam Ali and others), in which the honorable Supreme Court has held that the proper place of

procedure in any system of administration of justice is to help and not to thwart the grant to the
people of their rights. All technicalities have to be avoided unless it be essential to comply with
them on grounds of public policy. The English system of administration of justice on which our
own is based may be to certain extent, technical but we are not to take from that system its
defects. Any system, which by giving effect to the form and not to the substance defeats
substantive rights, is defective to that extent. The ideal must always be a system that gives it
every person what is his.

21. The upshot of this discussion is that the controversy raised in the instant applications require
evidence, therefore, both the parties at the time of settlement of issues may suggest specific issue
regarding the present controversy which can be decided after leading the evidence. Both the
applications are disposed of in the above terms.

(R.A.) Applications disposed of.

Page No. 6 of 6
PLJ 2006 Lahore 703

Present: Muhammad Muzammal Khan, J.

MUHAMMAD YOUSAF and others--Petitioners

versus

Mst. ZAINAB BIBI--Respondent

C.R. No. 199 of 2000, heard on 30.9.2005.

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

----O. 1, R. 9 & S. 115--Non-impleading of persons who claimed to be descendents of


deceased land owner and were allegedly entitled to their share of inheritance besides
respondent lady--Such person had neither challenged sale transaction nor challenged
mutation in question independently--Mutations of sale to the extent of non-impleaded
persons remained intact in as much as they were not challenged in suit filed by
respondent lady and they themselves had no challenged the same independently--Non-
impleaded persons could not be made co-plaintiffs at revisional stage and by impleading
them as defendants no effective degree could be passed in their favour--Persons claiming
to be impleaded would (have option to file independent suit to challenge sale mutation
which had been kept intact by Court below. [Pp. 710 & 711] E

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

----S. 42--Limitation Act (IX of 1908), Art. 120--Suit for declaration claiming title filed
after lapse of 20 years--Suit for declaration envisages 6 years time computable from date
of accrual of cause of action--Petitioners being admittedly tenants had been paying due
share of produce as per evidence on record--Respondent's claim in plaint that one year
and nine months prior to filing of suit petitioners denied respondent's title where upon she
filed suit for declaration of her title was not rebutted--Suit filed by respondent was thus,
well within time. [Pp. 709 & 710] C

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

----S. 42--Civil Procedure Code (V of 1908), S. 115--Refusal of Appellate Court to allow


petitioner to produce additional evidence--Legality--Petitioners availed maximum time
for conclusion of their evidence before trial Court--File was however absolutely thirsty of
proof--No prayer was made by petitioners for comparison of signatures before any of two
Courts below or even before High Court--First Appellate Court had correctly refused
permission to lead additional evidence therefore, no interference was warranted in the
same. [P. 710] D

(iv) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

----S. 53--Illiterate Village lady--Mutation of sale by respondent lady on basis of alleged


sale agreements assailed as being illegal, void, fraudulent, without consideration and
result of impersonation--Respondent lady being illiterate and having denied transaction of
sale--Onus shifted to petitioners to prove such transaction through positive evidence--
Petitioners besides their oral evidence which was not confidence inspiring and the same
being self contradictory was not worth reliance, also failed to prove sale through alleged
agreement in as much as such agreement was not proved by producing marginal
witnesses--Record showed that mutation of sale was entered one day prior to the alleged
agreement to sell--Respondents' husband and her young sons who were alive at the time
of transaction in question, were not associated in transaction of sale--Transaction of sale
on basis of agreement to sell fell short of required proof--Suit filed by respondent lady
was thus, rightly decreed by Courts below, warranting no interference in revision. [Pp.
708 & 709] A & B

Page No. 1 of 1
AIR 1925 PC 204; AIR 1931 P.C. 303; 1984 SCMR 890; PLD 1990 SC 642; PLD 1990
SC 661; PLD 1991 SC 402; PLJ 1996 Lahore 989; 2001 SCMR 609; PLD 1992 SC 96;
PLD 1981 SC 165; 1986 CLC 320 and
1988 MLD 1601 ref.

Ch. Shahid Saeed, Advocate for Petitioners.

M/s Syed Ahmad Saeed Kirmani and Muhammad Afzal Khan, Advocates for
Respondents.

Mian Ghulam Rasul, Advocate for Applicant (in C.M. No. 328-2000).

Date of hearing : 30.9.2005.

Judgment

This judgment proposes to decide two civil revisions, one in hand and the other C.R.No.
279 of 2000 as those arise out of alike judgments/decrees, raise similar questions of
law/facts, require appraisal of alike evidence and are directed against the same set of
respondents. Both these revision petitions assailed judgments/decrees dated 29.6.1991
and 17.1.2000 passed by the learned Civil Judge and learned the learned Additional
District Judge Jaranwala, District Faisalabad, whereby two suits filed by Mst. Zainab
Bibi, the respondent were decreed and the appeals of Muhammad Yousaf etc. the
petitioners and Ghulam Rasool, were dismissed, respectively.

2. Succinctly, relevant facts are that Mst. Zainab Bibi filed two suits for
possession/declaration regarding land measuring 8 Kanals and 13 Marlas to the effect that
the mutation of Sale No. 288 dated 12.4.1967, sale Mutation No. 289 of even date and
that of inheritance of Abdul Karim (Mutation No. 837 dated 30.9.186) sanctioned by AC-
II Jaranwala, on her behalf and on death of Abdul Karim were illegal, void, fraudulent,
collusive without consideration and result of impersonation as she never entered into any
sale transaction with predecessor of Muhammad Yousaf etc-petitioners, i.e. Abdul Karim
deceased, and Ghulam Rasool sons of Muhammad Bakhsh, the mortgagees under her.
Respondent in her one suit challenged sale Mutation No. 288 sanctioned on her behalf in
favour of Abdul Karim deceased and in the other, she assailed sale Mutation No. 289
allegedly attested on her behest in favour of Ghulam Rasool petitioner in C.R. No. 279 of
2000 and in both these suits she also prayed a decree for permanent injunction to the
effect that petitioners may permanently be restrained from claiming any title on the basis
of mutations in dispute and thus, may also be restrained from alienating the property by
any means whatsoever. The respondent prayed that she may be declared owner of the
land detailed in the plaints, possession of which, may be given to her after declaring that
the impugned entries in the revenue record on the basis of impugned sale/inheritance
mutations were fake and ineffective qua her rights.

3. The petitioners being successors of Abdul Karim defendant in the one suit and
Ghulam Rasool defendant in the other suit contested the suits by filing their respective
written statements. Certain preliminary objections regarding suit being barred by
limitation, estoppel and non-maintainability of suit against petitioners were raised
whereas in the other suit, Ghulam Rasool vendee also contested the suit against him by
filing his written statement. Controversial pleadings of the parties in both the suits led to
framing of separate issues and recording of evidence. The learned Civil Judge who was
seized of these matters after doing the needful, decreed both the suits of the respondent
(Mst. Zainab Bibi) and through separate judgments decrees dated 29.6.1991 adjudged
both the sale mutations as well as inheritance mutation sanctioned regarding her land.

4. The petitioners and Ghulam Rasool, being aggrieved of both the decrees in the two
suits filed by the respondent, filed two separate appeals before the learned Additional
District Judge wherein they also moved application under Order XLI Rules 27 CPC
praying summing of revenue officer who attested the Mutations Nos. 288 and 289 namely
Muhammad Afzal AC-II, and Muhammad Shafi son of Fazal Muhammad, the marginal
witnesses of the agreement, finger print expert for comparison of thumb impressions of
Mst. Zainab Bibi over the agreement (Ex. D.1), record keeper who attested the copies of
Mutation No. 230 creating mortgage by Mst. Zainab Bibi and Baboo son of Kala in their
Page No. 2 of 1
favour, by way of additional evidence. The respondent contested the appeals and the
prayer for permission to lead additional evidence and the appeals were dismissed
alongwith their application by the learned Additional District Judge on 17.1.2000
whereafter the petitioners filed C.R. No. 199 of 2000 challenging the concurrent
judgments and decrees of two Courts below, in the suit filed by Mst. Zainab Bibi
(respondent) and Ghulam Rasool filed the other C.R. No. 279 of 2000 praying
adjudgment of judgments/decrees in the other suit which were admitted to regular hearing
and after completion of record have now been placed for final hearing. The respondent in
response to notice by this Court appeared and was represented through her counsel.

5. Maqbool Ahmad etc, descendents of Baboo son of Kaka a co-vendor of the respondent
who was her cousin as well as, co-sharer her co-mortgagor and had allegedly got
sanctioned both the disputed mutations to the extent of his share, filed two applications,
one in each civil revision (C.M.No. 328-C of 2000 and C.M.No. 329-C of 2000) seeking
their impleadment as party to the civil revisions, under Order I, Rule 10 CPC. They had
claimed that fictitious sale shown on behalf of their predecessor Baboo son of Kaka
incorporated in the mutations challenged by the respondent, had been cancelled by the
trial Court in totality but were incorrectly directed to be kept intact to their extent, by the
appellate Court at their back, hence, they were necessary/proper parties to the revision
petitions.

6. The learned counsel for the petitioners submitted that they were bona fide purchasers
for valuable consideration and had proved sale in their favour through evidence on the
file but a contrary view taken in the impugned judgments was not in consonance with the
evidence on the file and thus, the same is not sustainable. It was further submitted that
respondent after receiving the entire sale consideration, transferred the possession of the
land subject of suit to the petitioners and both these acts were acknowledged by her
before the revenue officer sanctioning mutations in dispute, hence, after completion of
sale, her suits could not have been decreed. It was further submitted that both the parties
hail from one village where they reside till today but respondent after about 20 years of
sale filed a time barred suit to satisfy her greed on account of increase of prices of the
property. According to them, suits on the face of those, were barred by limitation and
could not have been decreed. It was further emphasized that there is no rebuttal to the
statement of Lumberdar of the village who identified the respondent at the time of
attestation of mutations, as DW. (Mushtaq Ahmad). It was further submitted that there
were traces of sale in favour of the petitioners through the documents like an agreement
to sell but those were incorrectly not relied by the two Courts below to the disadvantage
of the petitioners. It was further urged that the application of the petitioners under Section
XLI, Rule 27 C.P.C. was wrongly dismissed whereas, had the permission prayed been
granted, the appellate Court could have given a better decision.

7. The learned counsel appearing on behalf of Maqbool Ahmad etc. The inter-pleaders
who had prayed their impleadment to the civil revisions on the ground that the appellate
Court erroneously kept the mutations of sale intact to the extent of their predecessor
Baboo son of Kaka, submitted on their behalf that the appellate Court could not have
reversed the judgments/decrees of the trial Court to their extent at their back or without
giving them a notice, hence they were necessary parties to the revision petition.

8. The learned counsel appearing on behalf of the respondent refuted the arguments of
the petitioners as well as those of the inter-pleaders and supported the concurrent
judgments/decrees of the two Courts below, by urging that the respondent being an
illiterate villager parda observing lady was entitled to special protection by way of
independent advice at the time of parting with her immovable property but there was
absolutely no evidence that she availed such opportunity inspite of the fact that her
husband and young sons were available for this purpose but none of those appeared at the
time of sanctioning of mutations. According to him, respondent had denied the
transaction of sale, receipt of sale consideration and sanction of mutations whereafter
onus of proof of all these things shifted on the shoulders of the petitioners who were the
beneficiaries of the transaction but failed to discharge this obligation. It was further
submitted that the petitioners were in the joint possession of the land in dispute since
before the disputed mutations, as mortgagees and had been paying share of produce to the
respondent regularly on account of which fake mutation proceedings, did not come to her
knowledge According to him, on refusal by the petitioners to pay the share of produce of
Page No. 3 of 1
the land to the respondent, she sorted out the matter and came to know that her share of
land had been fictitiously transferred in the names of Abdul Karim predecessor of the
petitioners and Ghulam Rasool, whereafter she instantly filed the suits in hand which
cannot be said to be barred by limitation. Prayer with regard to permission to lead
additional evidence refused by the First Appellate Court was said to have been rightly
denied as this evidence was available to the petitioners during the trial and was
deliberately withheld.

9. I have minutely considered the respective arguments of the learned counsel for the
parties and have examined the record, appended herewith. Undeniably, respondent is an
illiterate villager lady and her denial of having entered into any transaction of sale with
the predecessor of the petitioners and Ghulam Rasool petitioner through her suits and as
witness (PW.3), onus shifted towards the beneficiaries to prove through positive
evidence, not only the bargain between the parties but also the transactions of sale to have
rightly been matured and reflected in the mutations under challenge in the suits. The
petitioners in order to discharge the onus of proof coming towards them, examined DW.1
Mukhtar Ahmad who being a Patwari claimed to have entered the transaction in daily
diary and the mutations in dispute but during the course of cross-examination admitted
that no sale consideration was paid in his presence. DW.2 Allah Ditta tried to became a
witnesses of the transaction without being named in this capacity on the mutations,
deposed that bargain was struck for Rs. 6300/- out of which Rs. 4300/- was paid as
earnest money, Rs. 1400/- was to be adjusted towards mortgage money and the rest of the
sale price was to be paid at the time of attestation of mutation. He admitted in the
witness-box that his narrations about visit to Patwari and Rapt Roznamcha were based on
hearsay evidence. DW. 3 is Mushtaq Ahmad, who deposed that the respondent only
acknowledged the receipt of sale consideration which was not paid in presence of the
revenue officer sanctioning of the mutations and deposed to have identified the parties at
the time of its attestation. DW.4 is Muhammad Yousaf one of the defendants/petitioners
who deposed that bargain was struck by Rasheed and Allah Ditta DW.2 for an amount of
Rs. 6300/- out of which Rs. 4300/- (1900 E.M. + 1400 Mortgage were paid) at the time of
bargain and Rs. 2000/- was paid at the time of attestation of mutation. Examination of
statement of DW.2 revealed that the stance of the petitioners (as DW.4) was not supported
by him who stated that Rs. 4300/- was paid as earnest money and rest of the amount after
adjusting mortgage debt of Rs. 1400/- was to be paid at the time of sanctioning of
mutation. Statements of both the witnesses DW.2 and 4 were negated by copy of
Mutation Ex. D. 3 and DW.1 who had stated that sale price was not paid in his presence.
The other witness of bargain namely Rasheed was deliberately withheld and natural
presumption is that had he appeared, would not have supported them. The petitioners
besides their oral evidence which was not confidence inspiring and being self
contradictory was not worth reliance, also failed to prove the sale by the respondent
through agreement (Ex. D.7) as the same was not proved by producing its marginal
witnesses. This lacuna in their evidence was attempted to be filled by moving an
application under Order XLI, Rule 27 of CPC at belated stage. This aspect of the matter
will be taken care, in the later part of this judgment. From resume of facts, the record
revealed that mutations of sale were entered one day prior to the alleged agreement to sell
(Ex. D.7) grading it to be oral sale but it has not been explained as to why the necessity of
execution of agreement to sell was felt when the sale mutations had already been entered.
It appears that the petitioners over acted to secure the claimed transactions of sale and
those went against them due to lack of proof. Entries in the mutations revealed that the
entire sale price was admitted to have been received by the respondent, earlier but
contrary to it both the witnesses of the petitioners DW.2 and 3 categorically deposed that
the balance sale price was agreed to be paid at the time of sanctioning of disputed
mutations. Similarly, Ghulam Rasool produced same witnesses and their depositions were
verbatim reproduction except, he himself appeared as DW.5 and produced DW.6
Muhammad Iqbal, Patwari who simply proved copy of Rapt Roznamcha Ex. D.2 which
was prepared by him and Ex. D.3 copy of Jamabandi. In this manner, scan of evidence
revealed that the payment of sale price to the respondent could not be proved by the
petitioners who were already in possession of the land as tenants/mortgages. Revenue
record on the file reflected that the petitioners remained in possession of the land as
tenants/mortgages which did not mature into that of exclusive owner, on the basis of the
claimed sale. These necessary requirements for completion of sale i.e. transfer of
possession and payment of sale consideration, remained thirsty of proof.

Page No. 4 of 1
10. Undeniably at the time of mutations challenged by the respondent, she had her young
sons and her husband was also alive but none of them is shown to have been associated in
the asserted transactions of sale. There is no evidence on the file to show that the
respondent ever consulted any body about the sale or parting with her only a small piece
of immovable land inspite of the fact that she was entitled to such advice. Under law
parda observing ladies like the respondent, are protected while entering into the alleged
sale transactions of their immovable property and the transferees/beneficiaries are bound
to prove good conscience of the transaction but no such evidence was produced by the
petitioners, negatively reflecting on their transaction. The petitioners were required not
only to prove their bargain with the respondent but also to prove the transactions through
independent evidence and then to prove the mutations of sale by showing payment of sale
consideration and transfer of possession, thereunder. The petitioner failed to bring an iota
of evidence in support of bargain, transactions of sale or mutations as neither the revenue
officer who attested the mutations was summoned or produced nor any witnesses who
negotiated the bargain, was examined and at the same time, none of the marginal
witnesses of the claimed agreement to sell (Ex. D.7) was produced. In this manner the
petitioners failed to prove the sale in their favour. If any precedent about the required
proof of transactions by a female lady is needed, reference can be made to the judgments
in the cases of Mst. Farid-un-Nisa versus Munshi Mukhtar Ahmad and another (AIR
1925 Privy Council 204), Tara Kumari versus Chandra Mauleshwar Prasad Singh (AIR
1931 Privy Council 303), Mst. Mahmooda Begum and others Versus Major Malik
Muhammad Ishaq and others (1984 SCMR 890), Janat Bibi versus Sikandar Ali and
others (PLD 1990 SC 642), Mst. Fazal Jan versus Roshan Din and 2 others (PLD 1990
SC 661) Mst. Badshah Begum versus Ghulam Rasool and 4 others (PLD 1991 SC 1140),
Mst. Hassan Bibi versus Ghulam Siddiqu and others (1992 CLC 402), Bajju versus Mst.
Rahman Bibi (PLJ 1996 Lahore 989) and Amirzada Khan and another versus Itbar Khan
and others (2001 SCMR 609).

11. As regards objection of the petitioners about the suits of the respondent, being barred
by limitation, as those were filed in 1987 to challenge mutations of 1967, after lapse of
20 years. Apparently the objection appeared to be very attractive but lost its worth on
deeper examination. For filing a suit under Section 42 of the Specific Relief Act, 1877,
Article 120 of the Limitation Act 1908, envisaged 6 years time computable from the date
of accrual of cause of action. Respondent in her plaint pleaded that the petitioners had
been paying her due share of produce of the part of the land which was not mortgaged
with them and averred in paragraph 3 thereof that she had mortgaged 69/836 share of her
holding with the petitioners for an amount of Rs. 1.400/-. All the three witnesses of the
respondent (PWs.1 to 3) unanimously deposed that the respondent had mortgaged 6
Kanals of land out of her holding of 18 Kanals 3 Marlas and rest of it remained with the
petitioners as tenants, share of which they had been paying to her regularly. These
witnesses were subjected to lengthy cross-examination but veracity of their statements
could not be shattered. Respondent while appearing as her own witness as PW.3
deposed that about one year and nine months earlier to the filing of her suit, petitioners
stopped paying her share of produce whereupon she inquired and revealed attestation of
mutation in question. She further deposed that petitioners committed fraud, as she never
entered into any transaction of sale with them and did not receive any sale consideration.
There is no rebuttal to the stand taken by the respondent and mere self-serving statements
of DWs in this behalf were not enough to misplace impact created by the evidence of the
respondent. Under law fraud vitiates even solemn proceedings and there is no time limit
to challenge any such transaction, which was deliberately kept away from the affectee, as
per judgment of the Honourable Supreme Court in the case of Messrs Bisvil Spinners
(Pvt.) Ltd versus Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others
(PLD 1992 SC 96). Besides it, limitation for filing declaratory suit would start only from
the date of actual threat to title visualized by the owner. The respondent had claimed and
proved that the petitioners had denied her title only one year and nine months earlier to
the filing of the suit hence, from this date; both the suits were within time. Reference in
this behalf can be made to the cases of Mst. Izzat versus Allah Ditta (PLD 1981 SC 165).
Fateh Sher and another Versus Sharif Khatoon and 3 others (1986 CLC 320) and Qutab
Din through his Legal Heirs Versus Muhammad Siddiq and 2 others (1988 MLD 1601).

12. Scan of evidence on the file and the trial Court's record revealed that the petitioners
availed maximum time for conclusion of their evidence before the trial Court and left no
stone unturned in effort to proved their case. File is absolutely thirsty of the proof as to
Page No. 5 of 1
why application for comparison thumb impressions was not moved to the trial Court.
Law regarding comparison of signatures is settled by this time to effect that this exercise
could be done by the Courts themselves but no prayer to this effect was ever made by the
petitioners before any of the two Courts below or even before this Court. Besides all
these reasons, the First Appellate Court correctly refused permission to lead additional
evidence and the petitioners could not demonstrate that reasons assigned in this behalf
were not lawful.

13. As regards impleadment of descendents of Baboo son of Kaka, there is no cavil that
initially the suits to challenge the mutations in question were filed by respondent and she
asserted that she did not enter into any sale transaction with the predecessor of the
petitioners and Ghulam Rasool. Baboo son of Kaka neither filed his own independent suit
to challenge the discussed mutations nor he applied to became co-plaintiff alongwith
respondent, meaning thereby that mutations to the extent of Baboo remained
unchallenged in these proceedings but the same were wrongly adjudged in toto by the
trial Court, without there being any such allegation. In view of this legal position and
facts proved on the file, the appellate Court kept the mutations of sale to the extent of
Baboo son of Kaka, intact. The applicants, who are his descendents and seek
impleadment to the civil revisions for the first time, are not necessary/proper parties
thereto as their presence is not needed for just/fair decision of the suits by the respondent.
Thus the applicants may, if law permits them and they are advised, to file their
independent suits to challenge the sale transactions by their predecessor, may do so but
they cannot be allowed to be impleaded parties to these proceedings. Another aspect of
the case is that suits were filed by the respondent to which if at all, these persons can be
impleaded, they will be arrayed as defendants or respondents in the revision petitions and
in this capacity no effective decree to the extent of their share of mutations, can be
passed.

For all the reasons noted aboved, both the revision petitions have no merit and prayer of
the petitioners regarding grant of permission to lead additional evidence is declined and
both the applications filed by Maqbool Ahmad etc. for their impleadment are dismissed
alongwith the main revision petitions being devoid of merit. There will be no order as to
costs.

(A.A.) Order accordingly.

Page No. 6 of 1
PLJ 1999 Peshawar 1
Present: SHAH JEHAN KHAN YOUSAFZAI, J.
MAJEEDULLAH (deceased) through Legal heirs-Petitioners
. versus

SHER ALI etc.-Respondents Civil Revision No. 20 of 1995, dismissed on 2.6.1998.

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

—-S. 115 read with 0.7 R. 11 and 0. 41 R. 23-Suit for declaration-Rejection U/O. 7 R. 11 CPC-
Appeal against-Case remanded to trial court for decision on merits—Revision against—Plaint
was rejected on contention of non-availability of cause of action-Perusal of plaint reveals that
accrual of cause of action was rightly alleged in plaint-Suit was rejected on application of
defendant without calling for written statement which is , prima facie in disregard of law-
Moreover, appellate court remanded case under Order 41 Rule 23 CPC under which appellate
Court after reversing findings recorded by trial Court has to remand case back for decision on
merits-Since no evidence was recorded by trial Court, it was incumbent upon appellate court
to remand case for framing issues, recording evidence and thereafter, decision on merits-
Revision petition dismissed.
[Pp. 5 & 6] A to C

Page No. 7 of 1
Mr. Dost Muhammad Khan for Petitioners.

Mr. Gohar Zaman Khan, Advocate for Respondent.

Mr. H. Saad Ullah Khan, Advocate for Respondent No. 3.

Date of hearing: 27.5.1998.

JUDGMENT
Suit of respondent No. 1 Sher Ali Khan for declaration to the effect that the land measuring 229
Kanals, 6 Marias situated in Mouza Dadiwala, District Lakki Marwat fully detailed in the
heading of the plaint, was purchased by him in open auction and mutated in his name vide
Mutation No. 403 attested on 26.2.1986 and the allotment order of Deputy Settlement
Commissioner/respondent No. 6 in favour of Majeedullah Khan, the predecessor of petitioners
in the instant revision petition as illegal and ineffective upon his rights, was rejected by the
Senior Civil Judge under Order 7 Rule 11 of the C.P.C. vide his decree and judgment dated
29.1.1992. Feeling aggrieved, respondent No. 1 filed an appeal in the Court of District Judge
Lakki Marwat which was accepted vide his order dated 20.12.1994, the impugned decree and
judgment of Senior Civil Judge, Bannu dated 29.1.1992 was set aside and the case was remanded
back for disposal on permits. The instant revision has been directed against the said remand
order of the District Judge, Lakki Marwat.
2. The instant litigation has a checkered history. The petitioner's predecessor Majeedullah
a retired optee Govt. servant, filed a claim for rural evacuee property and was verified for a land
measuring 999 Kanals, 4 Marias on 28.6.1960. The migratee Majeedullah Khan applied on
22.8.1960 to the Central Record Office Lahore for issuance of entitlement Certificate about his
verified claim. The Central Record Office Lahore refused to issue entitlement certificate of MR-
I for his failure to file QPR-I/UR-I under the then promulgated MLR-84 of 1960 within the
prescribed time limit. In 1969 the Province of West Pakistan was disintegrated and four Provinces
were constituted, with the result that all pending settlement work was transferred to the concerned
provinces. Meanwhile Evacuee Properties & Displaced Persons (Repeal) Ordinance, 1974
substituted by Evacuee Trust Property & Displaced Persons (Repeal) Act 1975 was enacted.
At the time of enforcement of the Act ibid, the application of Majeedullah Khan was pending
in the Central Record Office Lahore which was transferred to Province of Sindh on 24.3.1976
and subsequently transferred to NWFP. The Member Board of Revenue/Chief Settlement
Commissioner returned the file to Central Record Office Lahore being a pending case at the
time of promulgation of repealed laws.^ On 12.6.1976, Mawdullah Khan applied to the Assistant
Commissioner/Deputy Settlement Commissioner, Lakki under Paragraph-20 of the West
Pakistan Rehabilitation of Settlement claims for reservation of un-allotted area in Dadiwala
against his expected entitlement certificate. The authority concerned allegedly reserved the said
area. Consequent upon the repeal of Evacuee laws in 1975, on 16.6.1976 Scheme No. II was
framed whereunder the land available for disposal immediately before the promulgation of
repeal Ordinance, 1974, were required to be transferred to the entitled migrates. The Central
Record Office Lahore issued MR-I entitlement certificate in favour of Majeedullah and sent the
same to the Deputy Commissioner Bannu for giving effect who onward forwarded the same to
Tehsil Lakki for doing the needful.
4. On 28.7.1976, Majeedullah applied for allotment of reserved land against his revised
claim. The Revenue Authorities proposed to the Deputy Settlement Commissioner for
allotment of a part of reserved land to Majeedullah Khan. The said proposal was
approved by the Deputy Settlement Commissioner on 7.12.1976 and sent back to the
Revenue Authorities with the direction of compliance on 15.12.1976. Since a part of reserved
land was allowed to be transferred to Majeedullah Khan against his verified claim, the remaining
part of reserved land was put to auction on 26.12.1976 which was objected by Majeedullah Khan,
being a claimant of the same. On 30.12.1976, Deputy Settlement Commissioner suo moto
reviewed his own order dated 7.12.1976 and cancelled the allotment in favour of
Majeedullah Khan. After cancelling the allotment in the name of Najeedullah Khan a
part of the land available in the pool, was put to auction.
Feeling aggrieved from the order dated 30.12.1976, Majeedullah Khan filed a revision petition
before the Additional Commissioner/Settlement Commissioner which was accepted on
25.1.1977 and the cancellation order dated 30.12.1976 was set aside and an observation was
made that the allotment order in favour of Majeedullah Khan dated 7.12.1976 be sent to the
Board of Revenue for confirmation under the law in the field. On 16.5.1977the Settlement
Commissioner on realizing the instructions issued by the Chief Settlement Commissioner
whereunder a ban was imposed on any new allotment after 30.6.1973 even if proposed before
the said date, recalled his own order dated 25.1.1977.
5. Being aggrieved from the order of Settlement Commissioner dated 16.5.1977,
Majeedullah Khan filed a Writ Petition No. 231 of 1977 challenging the vires of the same. Sher
Ali Khan plaintiff/respondent No. 1 applied for impleadment in his capacity as auction
purchaser of a part of subject matter of dispute. The application was allowed vide order
dated 18.6.1978 and Sher Ali Khan was allowed to be impleaded and arrayed as respondent
Page No. 1 of 3
No. 4. The said implement order was challenged before the Supreme Court of Pakistan which
was accepted on 27.11.1979 and Sher Ali Khan respondent No. 4 and Amanullah Khan respondent
No. 5 therein were ordered to be struck off as respondents in the writ petition.

6. Sher Ali Khan respondent No. 1 filed a declaratory suit in the court of Senior
Civil Judge, Bannu against the Central Government, Government of NWFP through Board
of Revenue, Deputy Commissioner/ Settlement Commissioner, Bannu, Additional
Commissioner, D.I. Khan/ Settlement Commissioner, D.I. Khan and Assistant
Commissioner/Deputy Settlement Commissioner, Lakki Marwat which formed Suit No. 252/1 of
1991. On 6.1.1992 one Najeedullah Khan, son and alleged attorney of Majeedullah Khan, applied
for impleadment of Majeedullah as party to the suit which was replied by the plaintiff/respondent
No. 1 and objected to the maintainability of the application on behalf of Majeedullah Khan who
was alleged to have died two years back. This position was controverted by the alleged attorney
through an Affidavit. A Medical Certificate issued by Hussain Clinic, North Nazim Abad,
Karachi, disclosing that Majeedullah is alive and has got a good physique and health. On 27.1.1992
the said attorney also applied for rejection of the plaint under Order 7 Rule 11 (a)(d) of the CPC
which was fixed for 29.1.1992 for replicating and arguments, on which date the suit of
plaintiff/respondent No. 1 was rejected on the ground that he has not come with clean hands to the
Court and that he has got no cause of action.

7. Sher Ali Khan plaintiff/respondent No. 4 filed a declaratory suit against


Majeedullah Khan and defendants in the earlier Suit No. 252/1 of 1991 on 14.11.1992. In the
instant suit the allotment order of the Deputy Settlement Commissioner, Lakki Marwat in
favour of Majeedullah Khan was challenged being illegal and ineffective upon his rights. On
17.1.1993 defendants were summoned and Majeedullah Khan applied for rejection of the suit
under Order 7 Rule 11 of the CPC through ah application submitted by his attorney namely
Fazal ur Rehman Niazi. The said application was replied by plaintiff/respondent No. 1 but
the application of Majeedullah Khan was prevailed and the suit was rejected for concealment of
rejection of the previous suit whereby it was held that the plaintiff has not come with
clean hands and no cause of action accrued to the plaintiffs, with the result that suit of
plaintiff/respondent No. 1 was dismissed vide the decree and judgment dated 14.2.1993 on
a preliminary point without recording- evidence. In appeal the decree and judgment of the
Senior Civil Judge was set aside and the case was remanded back to the trial Court for
decision afresh on merits which has been assailed in the instant in revision petition. .
8. The learned counsel for the petitioner contended that in view of the facts and
circumstances of the case, respondent No. 1 has got no cause of action, and by suppressing
material facts from the Courts he has come to the Court for discretionary relief of declaration with
unclean hands his suit was liable to be rejected under Order VII Rule 11 of the C.P.C.
9. The learned counsel for contesting respondent/plaintiff contended that trial
Court has wrongly rejected the plaintiff summarily under Order VII Rule 11 of the C.P.C.
even without calling for written statement. Plaintiff/respondent No. 1 being a bona fide
purchaser of the suit land in an open auction at a time when the suit land was available in the
pool for disposal under Act XVI of 1975 and no proceedings regarding that were pending either
before D.S.C., Settlement Commissioner or Chief Settlement Commissioner. Plaintiff
was rightly aggrieved from the impugned allotment order dated 16.9.1992 whereby
without notice to ^plaintiff as bonafide purchaser and in physical possession since 1977 the
dispute land was illegally allotted to predecessor of Petitioners. Since the suit of plaintiff was
neither illegal under any law, or the cause of action was not disclosed or the suit was undervalued
nor any direction for correction of valuation was violated, the trial Court was not competent to
summarily reject the suit and the District Judge on appeal has rightly set aside the same with the
direction to decide the suit on merits.

10. After giving my anxious consideration to the facts and contentions of the
learned Court, I am satisfied that irrespective of the merits of the case the moot question for
determination by this Court is that whether the trial Court was legally competent to reject the
suit under order VIIRulelloftheC.P.C.
11Order VII Rule 11 C.P.C. reads as follows:-"Order-VII. Rule-11":Rejection of plaint.-The plaint
shall be rejected in the following cases:-

(a) Where it does not disclose a cause of action;


(b) Where the relief claimed is under-valued, and the plaintiff, on being
required by the Court to correct the valuation within a time to be fixed by
the Court, fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is written
upon paper insufficiently stamped, and the plaintiff, on being required
by the Court to supply the requisite stamp-paper within a time to be
fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred
by any law."

Page No. 2 of 3
12.The only contention raised at the Bar which empowers the Court to reject the plaint
summarily is the non-availability of cause of action. The perusal of plaint reveals that accrual of
cause of action was rightly alleged in the plaint. It has been observed in Muhammad Fazil the
plaint.lt has been observed in Muhammad Fazil vs. Resham (1983 CLC 1165) that existence of
cause of action for the purpose of exercise of powers under Order VIII Rule 11 CPC is to discover
the same in the allegation of the plaint and not from the written statement. In the instant case
without calling for written statement, merely on the application of Defendants the suit was
rejected, which is prima facie in disregard of the law and aforecited judgment. Yet in
another case their Lordships of the Lahore High Court in a case "Muhammad Farooq vs.
Province of Punjab and others" (PLD 1993 Lahore 56) it was observed that there is
distinction in non-disclosure of
cause of action in the plaint and non-availability of cause of action, under Order VII Rule 11
CPC only for non-disclosure of cause of action in the plaint the Court can summarily reject
the suit. As already stated that cause' „ of action was not only available to
plaintiff/respondent No. 1 but it was rightly disclosed in the plaint.
13.There is another aspect of the case too. The impugned remand order of the District Judge
waspr/ma facie passed under Order 11 Rule 23 of the C.P.C. Under the said provision of
law the appellate Court after reversing the findings recorded by the trial Court on a
preliminary point has .Hto remand the case back for decision on merits. Since no
evidence i whatsoever was recorded by the trial Court it was incumbent upon the trial [Court
to remand the case for framing issues, recording evidence and thereafter decision on
merits. In the circumstances no exception can be taken of the impugned remand order of the
District Judge.
14.For what has been recorded in the preceding paragraphs, this revision petition is without
substance, and, therefore, dismissed with no order as to costs.
(MYFK) Petition dismissed.

Page No. 3 of 3
PLJ 1990 Lahore 459

[Multan Bench]

Present: IHSANUL liAQ CHAUDHARY, J

GOVERNMENT OF PAKISTAN and another-Petitioners

-versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and another-

Respondents

Writ Petition No. 1410 of 1986, accepted on 24.6.1990


Industrial Relations Ordinance, 1969 (XXIH of 1969)--
—S. 25-A—Grievance petition—Dismissal of—Appeal against—Acceptance of— Challenge to—A
worker has to bring his grievance to notice of his employer within 3 months on accrual of cause of
action-Status of respondent No. 2 to maintain grievance petition at time of accrual of cause of action,
and not subsequent, is relevant-Held: Order of respondent No.l is liable to be set aside on short
ground that its reasoning is clearly illegal, faulty and illogical- Petition accepted and case remanded
for fresh decision in accordance with law. ' rjPp.461,462,463]A,B&C
5/i. Muhammad Hanif, Advocate for Petitioners. Syed Agha Asif Jaffari, Advocate
for Respondent No. 2 Respondent No.l Exparte. Date of hearing: 24.6.1990
JUDGMEiNT
The petitioners through this constitutional petition have prayed for declaration that the order of
Punjab Labour Appellate Tribunal dated 27.3.1985 is without lawful authority and illegal.
2. The relevant facts are that the respondent No.2 was serving as Engineering Supervisor phones
and was posted at D.G.Khan under Divisional Engineering Telegraph, Multan. One Liaquat Ali, who
was temporarily employed as un-approved Telephone Operator at Sakhi Sarwar Exchange absented
himself from duty and fraudulently drew his pay for the period of absence but the respondent No.2
failed to lay the necessary information with the authorities. It was therefore, decided to initiate the
disciplinary proceedings against the respondent No. 2. Accordingly he was charge sheeted. As a result
thereof he was reverted to the post of technician. The order is dated 26.3.1980. The employee
challenged this order through a grievance petition. The petitioners resisted the same. The learned
Punjab Labour Court No.IX, Multan recorded the evidence and after hearing the arguments held that
the employee is not a 'Workman'. The result was that his petition was dismissed vide order dated
19.3.1984. The respondent No.2 filed an appeal before the respondent No.l, the Tribunal held that
the respondent No.2 was a worker and can maintain the grievance petition. The result was that the
matter was remanded by the Tribunal to Labour Court vide order dated 27.3.1985 for decision on
merits. The petitioners have assailed this order in this constitutional petition, which was admitted to
hearing and notices were issued to the respondents. The respondent No.2 alone has entered
appearance and contested the petition while respondent No.l was proceeded ex-parte.
3. The learned counsel for the petitioners in support of the petition has argued that the
respondent No.2 was not a worker and respondent No. 1 illegally and incorrectly reversed the findings
of learned Labour Court on this issue. In this behalf the learned counsel has referred to notification
dated 25.8.1976 according to which the respondent No.2. and others were treated as 'employers'
for the purpose of I.R.O. It is added that the same position is clear from the charge sheet. It is
submitted that the respondent No.l reversed the findings, recorded by the Labour Court, on the sole
ground that respondent No.2 was serving as Technician at the time of the filing of the grievance
petition, therefore, the same was competent.
The arguments are summed up with the submission that this reasoning is illegal and illogical because
the status of the employee is to be run (?) at the time of the passing of the order impugned in the
grievance petition.
4. On the other hand, the learned counsel for the respondent No.2 submitted that the
notification cannot have precedent over law. In plain words, submission is that notification cannot
exclude the employees from the category of workman, who are otherwise covered by the definition
or worker. The next submission is that the petitioners failed to produce any evidence as to the nature
of the duties of the respondent No.2 in order to exclude him from the definition of worker. It is argued
that whether one is a worker, is a question of fact and onus of proof is on the employer. In this behalf
the learned counsel has referred to the judgments in the cases of PECO Ltd vs. Muhammad
Aslam(l986 P.L.C 298), Warner Lambert (Pakistan) Ltd. vs. Sind Labour Court No.III, Karachi and
another
(1980 L.L.C (?) 335) and Jasmine Cotton and Silk Mills, Karadii vs. ShujahatAli (P.L.J 1974 Tr.C.
(Labour) 104).
5. It is submitted that the petitioner (?) is fully covered by the definition of workman and in this
behalf the reference is made to the judgments in the cases of Dost Mohammad Cotton Mills Ltd,
Karachi vs. Mohammad Abdul Ghani and another (P.L.D 1975 Karachi 342) (this was upheld by the
Hon'ble Supreme Court and the judgment is reported as 1975 LLC (?) 211), Bashir A. Malik vs.
TTie
Page No. 1 of 3
Punjab Labour Court (Northern Zone), Lahore and 2 others (1973 P.L.C 319), (M/s) Adam
Limited vs. Abdul Sattar (1983 PSC 1373) and Executive Vice President, United Bank Limited,
Circle Office Lahore vs. Alain Zeb (P.L.J 1984 Tr.C (Labour) 135).
It is further submitted that the petitioner (?) was not holding any executive post, therefore, covered by
the definition of worker. In this behalf it is argued that the words Executive power or officer have
not been defined in the I.R.O, therefore, reference has to be made to the meaning of these
words assigned (in) legal dictionary. In this context he has referred to Blacks Law Dictionary.
6. The last submission is that the petition suffers from laches as the order of the
Tribunal is dated 27.3.1985 while the present writ petition was filed on 4.11.1986.
There is no explanation for a period of about 20 months. In this behalf the reference is made
to the judgments in the cases ofBarkat Bahi and 2 others vs. Settlement Commissioner and
3 others (P.L.D. 1978 Karachi 193), Sh. Atta
Mohammad vs. Housing & Physical Planning Deplt.etc (N.L.R 1980 Civil Lahore, 594),
Murree Brewery Co.Ltd. Rawalpindi vs. Province of West Pakistan and 4 others (P.L.D
1981 Lahore 640) and Government of Pakistan through Secretary, Ministry of Food and
Agriculture Division Food Directorate, Karachi vs. Messrs Rafi Associates Ltd. and another
(1985 C.L.C 2234).
7. The learned counsel for the petitioners in reply has argued that since the
respondent No.2 has not submitted the written statement, therefore, the plea of laches
cannot be raised by him. In this behalf the learned counsel for the petitioners has
referred to Pakistan Post Office vs. Settlement Commissioner and others (1987 S.C.M. R
1119) and Pakistan Post Office vs. Settlement Commissioner
andotliers (P.LJ 1987 S.C. 433).
It is added that the petitioner (?) has firmly committed himself in the petition that he
was serving as Engineering Supervisor, therefore, he is excluded from the definition of
worker. In this behalf the learned counsel has referred to Dawood Cotton Mills Ltd vs.
Presiding Officer Sind Labour Court No.IV, Karachi, etc (N.L.R 1983 Labour 161), Pakistan
vs. Abdul Ghani (P.L.D 1964 S.C. 68), Habib Bank Mianwali vs. Shamim Hussain
(1985.PLC 862), Mohammad Yakooob vs. Muhammad Ishaq (1980 C.L.C 2056), Mst.
Haleema Bai and others, vs. Settlement Commissioner and others (1987 M.L.D 3215),
Employees Welfare Union vs. R.B.Industries Ltd; Karachi and another (1976 P.L.C 43) and
N.L.R 1990 Labour 38.
8. I have given my anxious consideration to the arguments of the learned counsel for
the parties and gone through the record as well as precedent cases and relevant law. The
Tribunal proceeded to accept the appeal on the short ground that the appellant before it
was serving as Technician at the time of the filing of the grievance petition therefore
covered by the definition of 'workman' On the other hand, the learned counsel for the
petitioner has rightly submitted that the reasoning is faulty, illegal and illogical because the
status of the employee at the time of the filing of the grievance petition is irrelevant. In this
behalf reference can be made to Section 25-A of the I.R.O. The relevant portion of the same
reads as under: -

"25 A. Redress of individual grievances.--(1) A worker may bring his grievance in respect of
any right guaranteed or secured to him by or under any law or any award or settlement for
the time being in force to the notice of his employer in writing, either himself or through
his shop steward or (collective bargaining agent), within three months of the day on which
cause of such grievance arises".
It is clear from bare reading of the section that a worker in order to seek! redress of his
grievance, has to bring it to the notice of his employer within 3| months of the day on which
cause of such grievance arises. In the present case the employee was aggrieved by order of reversion
dated 20.3.1980, therefore, until he was not a worker at the time of the grievance he cannot issue
grievance notice. It is clear that, status of the petitioner (?) to maintain a grievance petition is relevant
at the time of the cause of action or grievance and not subsequent. The learned counsel for the
respondent No.2 made no effort to defend the order of the Tribunal and rightly he endeavoured to
show that his client was a worker on other grounds.

9. The courts have not dealt with the matter in its true legal prospective. The respondent
No.2 was admittedly a Government Servant, therefore, real question for determination was
whether he is covered by the definition of Civil Servant as given in Section 2(b) of the Cw$
Servants Act 1973 or not (?) The learned counsel for the employee maintained that his client was
excluded from the definition of-Civil Servants hi view of clause III of Section 2(b). It is submitted that he
was neither getting a salary of more then Rs.1,000/- nor he was holding any Executive or Supervisory
post in terms of schedule-2 to orkmen's Compensation Act. The learned counsel in this behalf has
referred to R.8 giving the salary of his client as Engineering Supervisor as well as Technician. It is
submitted that the total monthly salary of his client was Rs.786/- and not Rs.816.50/- as given in R.8
because salary never includes in T.A allowance. It is further added that his client was not holding any
supervisory or Executive post as is clear from annexure 'R'
dealing with the functions of Engineering Supervisors.
10. I need not to discuss the merits and demerits of the arguments of the learned counsel for
the parties in view of the order I propose to make. It is however, clarified that the order of the
Tribunal is liable to be set aside on the short ground that its reasoning is clearly illegal, faulty and
illogical, therefore, normally the case was to be remanded to the tribunal for fresh decision in
accordance with law but I have decided to remand the matter to the Labour Court, who is yet to
decide the grievance petition on merits. This is being done for three reasons:
Firstly, that the question whether the employee is a civil servant or not, has not been examined, by
both the courts;

Page No. 2 of 3
Secondly, whether the petitioner is a workman or a civil servant is a mixed question of law and fact,
therefore, it is better that the same is decided by the lowest court in accordance with the evidence on
record and law applicable, and
Lastly, that the Labour court acted illegally while dismissing the grievance petition of the employee on
the ground that he is not a workman instead of deciding whole matter.
The Labour Court should have decided all the issues involved together by one and the same order.
This would have saved repeated remands. The result of the illegal procedure adopted by Labour Court
is that a period of over 6 years has been wasted. Had the learned Labour Court decided the whole
petition at one and the same time then there was no need to remand the matter to it either by tribunal
or by this court.

11. The upshot of this discussion is that this petition is allowed. The impugned orders of the
respondent No.l as well as of the Labour Court are set aside and it is directed to decide the whole
matter, including the issue whether the employee was a civil servant or a workman, afresh in accordance
with law and evidence on record.

(MBC)

Petition accepted.

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