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2 0 0 9 S C M R 1368

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmed and Ch. Ijaz
Ahmed JJ

Chaudhry MUHAMMAD MUNIR and others----Petitioners

Versus

ELECTION TRIBUNAL, MANDI BAHAUDDIN and others----Respondents

Civil Petitions Nos.888 and 1270-L of 2007, decided on 13th May, 2009.

(On appeal from the orders, dated 8-11-2007 and 29-6-2007 of the Lahore High Court,
Lahore passed in Writ Petitions Nos.10998 and 2165 of 2007).

(a) Punjab Local Government Elections Rules, 2005---

---R. 12(4)---Fresh elections---Notorious disqualification, principle of---Applicability---


Disqualification of returned candidate having not been found to be not `notorious'
invariably fresh election on vacant seats to be held though disqualification may relate to
concealment of any fact required to be correctly and truly given in prescribed declaration
filed with nomination paper by a candidate or affect to his candidature as a validly
nominated candidate or to his eligibility to contest the election, therefore, in absence of
any mandate provided by law or under Punjab Local Government Elections Rules, 2005,
it cannot be claimed with inflexibility where disqualification was not `notorious' for any
act or omission, other candidates who contested election having secured second highest
votes to be declared as elected to vacant seats without any exception, is not a just and
correct approach to issue without looking into the facts and circumstances of each case
warranting otherwise.

(b) Punjab Local Government Elections Rules, 2005---

----R. 12(4)---Fresh elections---Principle of notorious disqualification and throwaway


votes---Applicability---Bogus Matriculation certificate---Appellant secured highest votes
in election and was notified. to be returned candidate but Election Tribunal declared him
disqualified and respondents who secured second highest votes were declared as returned
candidates---Judgment passed by Election Tribunal was maintained by High Court in
exercise of Constitutional jurisdiction---Plea raised by appellant was that his
disqualification was not `notorious' thus principle of `throwaway votes' was not
applicable---Validity---High Court failed to exercise jurisdiction by not examining
question apparent on the face of record that disqualification of appellant was not
notorious and thus principle `throwaway votes' was not applicable---Respondents who
secured second highest votes were not entitled to have been declared as returned
candidates on the seats which fell vacant on account of disqualification of appellant---
Default on the part of returned candidates of their acts and omissions would not impeach
voters to exercise their rights to vote nor the Court in exercise of powers vested in it
under the Constitution for doing complete justice would feel deterred to pass proper
orders and to issue directions---Supreme Court set aside the judgments passed by
Election Tribunal and High Court and directed Election Commission to take necessary
steps to conduct fresh election of vacant seats of the office of Nazims and Naib-Nazims
of union councils concerned---Appeal was allowed.

Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and 7 others 2003
SCMR 1611; Sher Zaman Sher and others v. Jahanzeb Khan and others PLD 2004 SC
505; Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others 2004 SCMR 1484; Shaukat
Ali and another v. District Returning Officer and another PLD 2006 SC. 78; Sardar
Muhammad Amir Khan v. Nadeem Akhtar and others 2007 SCMR 1044; Wali
Muhammad and others v. Raja Muhammad and others 1978 SCMR 415; Muhammad
Sadiq and others v. Ali Asghar Khan and others 1995 CLC 1529; Ghulam Siddique v.

Page No. 1 of 7
Collector Land Acquisition and others 1996 MLD 1399; Muhammad Abid Hassan and
others v. DRO and others PLD 2005 Lah. 712; Sheikh Muhammad Akram and another v.
Sheikh Muhammad Yaqub and others PLD 2006 Lah. 24; Sher Zaman Sher and others v.
Jehanzeb Khan and others PLD 2004 SC 505; Iqbal Zafar Jhagra v. Khalilur Rehman
2000 SCMR 250; Muhammad Boota v. Election Tribunal and others 2005 SCMR 1139
and Ellahi Bakhsh v. District and Sessions judge/Election Tribunal and others PLD 2003
SC 268 rel.

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

----S. 99 & O.I, R.10---Necessary and proper parties---Misjoinder and non-joinder---


Effect---No proceedings in a Court of law exercising civil jurisdiction ipso facto can be
defeated because of non-impleading of one of the necessary parties or proper party or
impleadment of improper petitioner or respondent as the case be and for that matter even
if a necessary party having not been transposed as co-petitioner in such proceedings or
civil suit, the Court always enjoys ample powers to transpose any of the respondent as co-
petitioner and vice versa, inasmuch as, depending upon the nature of cause, if it finds that
lis can effectively be adjudicated upon without transposition, the Court would be
competent to decide the cause accordingly.

Malik Muhammad Qayyum, Senior Advocate Supreme Court and Arshad Ali Ch.
Advocate-on-Record for Petitioners (in both cases).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents Nos.2 and 3 (in
C.P. No.888 of 2007).

Ch. Muhammad Anwar Bhinder, Senior Advocate Supreme Court for Respondents Nos.3
and 4 (in C.P. No.1270-L of 2007).

Date of hearing: 21st April, 2009.

JUDGMENT

RAJA FAYYAZ AHMED, J.---These Civil Petitions for leave to appeal have been
directed against the judgments dated 8-11-2007 and 29-6-2007 passed by the learned
Lahore High Court, Lahore, whereby, Writ Petition No.10998 of 2007 filed by petitioner
Chaudhry Muhammad Munir and Writ Petitions Nos.2165 and 2654 of 2007 filed by the
petitioner and respondent No.8 Tassadaq Hussain against the judgments of the Election
Tribunals have been dismissed.

C.P.888 of 2007.

2. The petitioner in this case and respondent No.4 Raja Muhammad Aslam contested the
election in the year, 2005 for Nazim and Naib-Nazim respectively of Union Council
No.112, Bhagnagar, Tehsil Sarai Alamgir, District Gujrat, whereas; respondents Nos.2
and 3 namely, Ch. Ashaq Hussain and Mazhar Iqbal also contested the election of the
office of Nazim and Naib-Nazim respectively of the said union council. The petitioner
and respondent No.4 as a result of the election were declared and notified as returned
candidates for the office of the Nazim and Naib-Nazim of the said Union Council
respectively.

3. Respondents Nos.2 and 3 feeling themselves dissatisfied with the election result of the
petitioner and respondent No.4 statedly being disqualified to contest the said election as
validly nominated candidates, challenged the same by filing Election Petition before the
Election Tribunal, Mandi Bahauddin. The petitioner and respondent No.4 filed separate
contesting written statements. The Election Tribunal in the light of the pleadings of the
parties framed issues. Both the parties produced oral and documentary evidence in
support of their case and finally the Election Tribunal accepted the Election Petition of
respondents Nos.2 and 3 vide judgment dated 2-11-2007, thereby declared the election of
the petitioner and respondent No.4 as void and consequently, declared the respondents
Nos.2 and 3 as returned candidates. for the offices of the Nazim and I1aib-Nazim of the
said Union Council, to have been duly elected within the purview of Rule 12(4), Punjab

Page No. 2 of 7
Local Government Elections Rules, 2005. The matter was referred to the Provincial Chief
Election Commissioner, Lahore for further proceedings and safe custody of the record.

4. The petitioner feeling aggrieved from the judgment of the Election Tribunal filed writ
petition before the learned Lahore High Court, Lahore challenging the judgment of the
Election Tribunal, which was dismissed as abovesaid by the learned High Court.

5. On perusal of evidence, findings of facts have been recorded by the Election Tribunal
in its judgment dated 2-11-2007 that the Matriculation Certificate of the petitioner
Chaudhry Muhammad Munir Exh.P.3 was a fake document provided by him with its
nomination papers and thereby claimed to be qualified and eligible to contest the election
for the office of the Nazim of the said Union Council. The election Tribunal further noted
that the original Matriculation Certificate produced marked as Exh.R.1 was issued in
favour of one Muhammad Munir son of Saeed Ahmad Sheikh having altogether the
different parentage and the contentions raised by him that he is in possession of the
genuine Matriculation Certificate and thus was qualified to contest the election could not
be substantiated before the Tribunal. Also findings of facts have been recorded by the
Election Tribunal in the light of the evidence adduced by the parties that respondent No.4
Raja Muhammad Aslam, had not furnished full and complete particulars of assets owned
and possessed by him in the declaration made at the time of submission of his nomination
form and thus, both the petitioner and respondent No.4 were disqualified to contest the
election. The learned High Court after having taken into account the material pieces of
evidence relating to the petitioner and respondent No.4 concluded vide judgment
impugned herein that in exercise of Constitutional Jurisdiction detailed examination of
evidence cannot be made in view of the well reasoned order passed by the Election
Tribunal.

C.P.No.1270-L of 2007.

6. The facts of this case in brief are that petitioner Chaudhry Muhammad Azeem and
respondents Nos.3 to 8 contested the election of the Union Council No.83/47 Khyali
Shahpur, District Gujranwala. The petitioner and respondent No.8 Tassadaq Hussain were
respectively declared and notified as returned candidates for the office of the Nazim and
Naib-Nazim of the said Union Council respectively. Respondents Nos.3 and 4 namely;
Malik Muhammad Iqbal and Muhammad Iqbal Tahir filed Election Petition against the
petitioner and respondent Nos.5 to 8 challenging their election results on various grounds
including that they were not the validly nominated candidates for being disqualified to
contest the election of the said offices of the Union Council. The petitioner and
respondent No.8 Tassadaq Hussain filed contesting written statements. The Election
Tribunal in the light of the pleadings of the parties framed necessary issues. The
contesting parties adduced their evidence i.e. documentary and oral before the Election
Tribunal in support of their case. Vide judgment dated 1-3-2007, the Election Tribunal
declared the election of the petitioner and respondent No.8 to the office of the Nazim and
Naib-Nazim of the said Union Council respectively as void and thereby declared
respondents Nos.3 to 4 namely; Malik Muhammad Iqbal and Muhammad Iqbal Tahir,
who having obtained the 2nd highest votes for the office of the Nazim and Naib-Nazim of
the said Union Council respectively as the returned candidates for the said offices who be
accordingly notified by the Election Commission of Pakistan, to which the matter was
referred for compliance. The petitioner and respondent No.8 namely; Tassadaq Hussain
through separate Writ Petitions mentioned above challenged the judgment of the Election
Tribunal on various grounds, which has been dismissed vide judgment sought to be
impugned through the instant petition filed by the petitioner Ch. Muhammad Azeem by
impleading the necessary parties as respondents in this petition including Tasadaq
Hussain as respondent No.8.

The learned Tribunal in the light of the evidence adduced by the parties before it, on
appraisal of evidence and in the light of the issues concluded that the petitioner was
disqualified to contest the election of the office of the Nazim of the said Union Council
for having submitted incorrect declaration in respect of his assets in the prescribed form
filed before the Returning Officer in violation of Rule 12(4) Punjab Local - Government
Elections Rules, 2005 and thus disqualified to contest the election for the said office
thereby, declared the election of the returned candidates for having jointly contested the

Page No. 3 of 7
election for the office of the Nazim and Naib-Nazim of the said Union Council
respectively to be void; simultaneously, the other candidates having secured' the next
highest number of the votes namely; Malik Muhammad Iqbal respondent No.3 and
Muhammad Iqbal Tahir respondent No.4 declared as elected for the said offices.

7. The learned High Court in the light of the contentions put forth on behalf of the parties
and having taken into account the evidence adduced before the Election Tribunal found
favour with the findings recorded by the Election Tribunal further concluded that the
petitioner Chaudhry Muhammad Azeem could not take benefit of the plea that
disqualification of the petitioner was not `notorious' on the principle of `throwaway votes'
would not be applicable in the case for the reason that the said plea was not specifically
agitated and taken in the written statements to the Election Petitions filed before the
Election Tribunal nor any evidence in such behalf was adduced before the Tribunal. The
learned High Court thus, applying the principle of sinker in the light of the reported
judgments in the case of Mian Ahmad Saeed and others v. Election Tribunal for Kasur at
Okara and 7 others 2003 SCMR 1611 and Sher Zaman Sher and others v. Jahanzeb Khan
and others PLD 2004 SC 505 held that the petitioner and respondents No.8 since
contested the election jointly for the office of the Nazim and Naib-Nazim of the said
Union Council respectively will share the fate of the election equally and the
disqualification of former will invalidate the election of the latter also. As a result of the
above-said declared position both the Writ Petitions were dismissed.

8. The learned counsel for the parties have been heard. Malik Muhammad Qayyum,
learned Senior Advocate Supreme Court for the petitioner in both these petitions argued
that he would not question the findings of facts recorded by the Election Tribunal nor
argued the case on merits. He strenuously contended that in the given facts and
circumstances of the case, the doctrine of `throwaway votes' in absence of 'positive
evidence of the disqualification being `notorious', the concerned respondents could not
have been declared as elected respectively to the offices of Nazim and Naib-Nazim of the
said Union Council for having secured next highest votes in the election. The learned
counsel for the petitioner maintained that the learned High Court has dealt with the matter
in a slipshod manner and failed to attend to the question involved in the case as
highlighted by him, which caused serious prejudice to the votes of the area who have
thereby been deprived of their rights of franchise to which they were entitled. He further
contended that the learned High Court failed to exercise jurisdiction in the matter,
inasmuch as; essentially the relief to have been granted by making appropriate directions
for holding of the fresh election to both the offices of the Nazims and Naib-Nazims of the
said Union Councils. To supplement his view point, reliance has been placed on a
reported judgment i.e. Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others 2004 SCMR
1484.

9. Hafiz S.A. Rehman, the learned Senior Advocate Supreme Court for respondents
Nos.2 and 3 submitted that the judgment passed by the Election Tribunal was not assailed
in the writ petition by respondent No.4 Raja Muhammad Aslam who jointly contested the
election with the petitioner, hence; he having accepted the same cannot be a beneficiary
nor the petitioner for such reason would be entitled to question the judgment sought to be
impugned through the instant petition for having jointly contested the election with
respondent No.4 from the said Union Council and they both as such; have to sail or sink
together. He placed reliance on (1) Shaukat Ali and another v. District Returning Officer
and another PLD 2006 SC 78, (2) Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others
2004 SCMR 1484 and (3) Sardar Muhammad Amir Khan v. Nadeem Akhtar and others
2007 SCMR 1044.

10. Ch. Muhammad Anwar Bhinder, the learned Sr. Advocate Supreme Court, for
respondents Nos.3 and 4 argued that the Miscellaneous Application No.1547 of 2008
submitted before this Court for transposition of Tasadeq Hussain respondent No.8 as co-
petitioner in the case having not been allowed, consequently rendered the instant petition
as not maintainable and incompetent because the petitioner and respondent No.8 have to
sail and sink together on account of their joint election to the office of the Nazim and
Naib-Nazim of the said Union Council respectively. Further, the learned counsel argued
that respondent No:8 cannot be transposed as a co-petitioner as he having accepted the
judgment of the High Court did not further challenge the same nor there could be any

Page No. 4 of 7
legitimate justification for such transposition. He also contended that the principle of
notoriety is not applicable in the case, therefore, in view of the Rule 12(4), Punjab Local
Government Election Rules, 2005 for filing incorrect statements of assets, fresh election
for the seats of Nazim and Naib-Nazim of the said Union council could not have been
ordered for being a simplicitor technical violation of the rule thus, the impugned
judgment is unexceptionable. To supplement his view point the learned counsel has
placed reliance on the judgments reported in (1) Wall Muhammad and others v. Raja
Muhammad and others 1978 SCMR 415, (2) Mian Ahmad Saeed and others v. Election
Tribunal for Kasur at Okara and 7 others 2003 SCMR 1611, (3) Muhammad Sadiq and
others v. Ali Asghar Khan and others .1995 CLC 1529, (4) Ghulam Siddique v. Collector
Land Acquisition and others 1996 MLD 1399, (5) Muhammad Abid Hassan and others v.
D.R.O. and others PLD 2005 Lah. 712, (6) Sheikh Muhammad Akram and another v.
Sheikh Muhammad Yaqub and others PLD 2006 Lah. 24 and (7) Sher Zaman Sher and
others v. Jehanzeb Khan and others PLD 2004 SC 505.

11. The contentions put forth on behalf of the parties learned counsel have been
considered in the light of the impugned judgments passed by the learned High Court, the
Election Tribunals in both the matters and the case-law cited during the course of
arguments, have been gone through carefully. It is an undisputed feature of the case that
in both the petitions it has not been disputed on behalf of the contesting respondents that
principle of `throw away votes' is not attracted because of the disqualification being not
`notorious' and further it is an admitted position on record that it was nobody's case
before the Election Tribunals that the said disqualification of the returned candidates was
known .to the electors or they knew about the facts relating to the disqualification of
candidates at the time of the filing and acceptance of their nomination papers by the
Returning Officer. In a number of authorities consistently it has been held by this Court
that where the disqualification of a returned candidate was not known to the voters, the
phrase `throw away votes' of the electors would not be applicable for the simple reason
that such disqualification was not `notorious' being not publically or generally known to
the voters hence to hold in such a case that vacant seats on account of the disqualification
of the returned candidates would be given to the contesting candidates for having secured
second highest number of votes in such election, rather; the appropriate course in such
eventuality would be to direct the Election Commission to hold fresh election on the
vacant seats. For convenience, the consistent view of this Court quoted above, to come
into operation as per reported judgments, out of which for instance a few for convenience
can be referred i.e. of (1) Iqbal Zafar Jhagra v. Khalilur Rehman 2000 SCMR 250, (2) Sh.
Amjad Aziz v. Haroon Akhtar Khan and 10 others 2004 SCMR 1484, (3) Muhammad
Boota v. Election Tribunal and others 2005 SCMR 1139, (4) Ellahi Bakhsh v. District and
Sessions judge/Election Tribunal and others PLD 2003 SC 268 and Shaukat Ali v. District
Returning Officer PLD 2006 SC 78.

Hafiz S.A. Rehman, the learned counsel for respondents Nos.2 and 3 in C.P. No.888 of
2007 was of the view that respondent Raja Muhammad Aslam who jointly contested the
election with the petitioner did not challenge the judgment passed by the Election
Tribunal in Writ Petition, hence; he having accepted the same cannot be a beneficiary nor
the petitioner for such reason would be entitled to take any benefit for having contested
the election jointly, hence; they both have to sink together whereas; in the connected
petition No.1270-L of 2007 the learned counsel for respondents Nos.3 and 4 argued that
Miscellaneous Application for transposition of Tassadaq Hussain respondent No.8 as co-
petitioner in the case having not been allowed, rendered the instant petition as
incompetent because the petitioner and respondent No.8 have to sail and sink together on
account of their joint election. Thus, the respondent having accepted the position even did
not approach to this Court, therefore, the petitioner and the respondent No.8 have to sink
together.

12. From the arguments put forth on behalf of the contesting respondents by their learned
counsel it transpired without there being an indication of ambiguity that generally in such
an eventuality where the disqualification of a candidate has been found to be not
`notorious' the principle of `throwaway votes' would not be applicable and thus
appropriately, fresh election of the vacant seats can legitimately be ordered but to this an
exception has been raised that besides the petitioners in both the cases, the returned
candidates other than the Nazims since did not challenge the judgments passed in these

Page No. 5 of 7
cases by the learned High Court consequently, the petitioners, as well as; the respondents
who held office of the Naib-Nazims of the Union Councils have to sink with the
petitioners and could not be beneficiary of the non-application of the followed principle
though their disqualifications being not 'notorious'. As has been held by this Court in a
chain of authorities in various cases of which a few have been mentioned above, have to
be' taken and understood in their actual basic context that the electors/voters cannot be
deprived of their rights to franchise provided the disqualification of a returned candidate
was found to be not `notorious' thus, having examined the same in its underlying
perspective, it can be safely concluded that in a case of disqualification of a returned
candidate having not been found to be not `notorious' invariably fresh election on the
vacant seats to be held though the disqualification may relate to the concealment of any
fact required to be correctly and truly given in the prescribed declaration filed with the
nomination paper by a candidate or affect to his candidature as a validly nominated
candidate or to his eligibility to contest the election, therefore, in absence of any mandate
provided by the law or under the Punjab Local Government Elections Rules, 2005 it
cannot be claimed with inflexibility where the disqualification was not `notorious' for any
act or omission, the other candidates who contested the election having secured 2nd
highest votes to be declared as elected to the vacant seats without any exception, seems to
us to be not a just and correct approach to the issue without looking into the facts and
circumstances of each case warranting otherwise.

In the case of petitioner Ch. Muhammad Munir, he was found to have furnished a fake
Matriculation Certificate to the Returning Officer to show his eligibility for contesting the
election to the office of the Nazim of the Union Council. Consequently, the Election
Tribunal on appraisal of evidence adduced by the parties before it found the petitioner to
have not been eligible at the time of filing of the nomination paper to contest the election,
as well as; respondent No.4 Raja Muhammad Aslam having furnished incomplete
particulars of assets owned and possessed by him in his declaration form submitted with
his nomination paper and thus the petitioner and respondent No.2 were found to be
disqualified to contest the election, thereby, the Tribunal accepted the Election Petition,
declared the petitioner and the said respondent's election as void consequently,
respondents Ch. Ashaq Hussain and Mazhar Iqbal for having secured the highest number
of votes in the Election declared as elected candidates to the vacant seats.

In this case the High Court failed to exercise the jurisdiction by not examining the
question apparent on the face of the record that the disqualification of the petitioner and
respondent No.4 Raja Muhammad Aslam was not `notorious' and thus the phrase
`throwaway votes' was not applicable and as to whether respondents Nos.2 and 3 were
entitled to have been declared as the candidates elected respectively on the seats which
fell vacant on account of the disqualification of petitioner and respondent No.4.

13. In C. P. No.1270-L of 2007 main thrust of the argument advanced on behalf of the
contesting respondents was that since respondent No.8 Tassadaq Hussain has not been
transposed as co-petitioner for there being no justification to do so, as the said
respondent having not challenged the decision of the Tribunal before the High Court
amounts to the acceptance of the same, rendered this petition as incompetent, moreover;
the disqualification of the returned candidates has since been found to be though not
`notorious' but only a violation of the rules which rendered them as disqualified,
therefore, no exception can be taken to the impugned judgment. It is worth while to note
that these contentions revolve around and relate to the conduct of respondent No.8 for
having not challenged the judgment of the Election Tribunal in writ jurisdiction nor even
before this Court hence; the petitioner and the said respondent in view of their election
being joint, have to sink together; in our opinion would amount to penalize the electors
and to deprive them of their rights to vote against vacant seats of the Union Council. The
arguments put forth on behalf of the respondent learned counsel in both the petitions if
allowed to prevail would mean that one of the successful joint candidates by his conduct
could obstruct and frustrate the legitimate course of holding fresh election on the seats
which fell vacant on account of the disqualification of the returned candidates for being
though not a `notorious' disqualification which course, we find to be not permissible.
Also for the added reason that no proceedings in a Court of law exercising civil
jurisdiction ipso facto can be defeated because of non-impleading of one of the necessary
parties or proper party, or impleadment of an improper petitioner or respondent as the

Page No. 6 of 7
case be and for that matter even if a necessary party having not been transposed as a co-
petitioner in such proceedings or civil suit, the Court always enjoyed ample powers to
transpose any of the respondent as co-petitioner and vice versa, in as much as; depending
upon the nature of the cause, if it finds that lis can effectively be adjudicated upon
without the transposition, the Court will be competent to decide the c a u s e
accordingly. These petitions for the above reasons could not be treated as
incompetent in view of the vested interests of the voters of the Union Councils, who
by means of the impugned judgments have been deprived of their rights to vote for
the candidates of their choice under the law. The default on the part of returned
candidates of their acts and omissions would not impeach the voters to exercise their
rights to vote nor the Court in exercise of the powers vested in it under the
Constitution for doing complete justice would feel deterred to pass proper orders
and to issue directions. It is pertinent to note that Civil Miscellaneous Application
No.1547 of 2008 filed in C.P.No.1270-L of 2007 has not been rejected by this Court
which remained un-disposed of.

14. Thus, in view of the above discussion and reasons, both these petitions are
converted into appeals and accordingly allowed with no orders as to costs. The
Election Commission of Pakistan is directed to take necessary steps to conduct fresh
election of the vacant seats of the offices of Nazims and Naib-Nazims of both the
Union Councils.

M.H./M-58/SC Appeal allowed.

Page No. 7 of 7
2007 S C M R 1560

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khart, Ch. Ijaz Ahmed and Hamid Ali Mirza,
JJ

REHMAT DIN and others----Petitioners

Versus

Mirza NASIR ABBAS and others----Respondents

C.M.A. No.683 of 2007 in C.A. No.2568 of 2001, decided on 8th May, 2007.

(On appeal from the judgment, dated 15-11-2000 of the Lahore High Court, Rawalpindi
Bench, Rawalpindi passed in Civil Revision No.37-D of 1988).

(a) Constitution of Pakistan (1973)----

---Art. 185---Dead person, appeal/petition against---Non-filing of rectification application


by appellant/petitioner---Effect---No appeal/ petition could be filed against dead person
as same would be nullity.

Partap Chand v. Krishna Devi AIR 1988 Delhi 267 rel.

(b) Constitution of Pakistan (1973)---

---Art. 185---Civil Procedure Code (V of 1908), O.I. R.10---Appeal/petition against five


respondents, out of whom two had died before its filing---Effect---Name of dead
respondents could be struck off under O.I, R.10, C.P.C.

(c) Limitation Act (IX of 1908)----

---S. 5---Delay, condonation of---Discretion of Court to condone or not to condone delay


after its satisfaction that there was sufficient cause for its condonation.

(d) Discretion---

----Court not vested with power to exercise discretion arbitrarily---Principles.

It is the duty and obligation of Court to exercise its discretion keeping in view the
principle of equity and fairplay in judicial manner and has no power to exercise discretion
arbitrarily.

Kanshi Ram's case AIR 1932 Lah. 183; Kishan Chand's case AIR 1942 Lah. 94; Arura's
case AIR 1947 Lah. 76 and Badri Prasad's case 1933 All. 294 rel.

(e) Limitation Act (IX of 1908)---

----Preamble---Object of Limitation Act, 1908 was to help vigilant and not indolent.

(f) Supreme Court Rules, 1980---

----O. XV, R.5---Dismissal of appeal for non-prosecution---Application for restoration of


appeal with delay of 621 days--Source of knowledge qua such dismissal not mentioned in
application for condonation of delay---Effect---Such conduct of applicant would amount
to concealment of material facts from court---Such fact alone would be sufficient not to
exercise equitable jurisdiction/discretion in his favour.

(g) Supreme Court Rules, 1980---

Page No. 1 of 4
----O. XV, R.5---Dismissal of appeal for non-prosecution---Application for restoration of
appeal with delay of 621 days---Source of knowledge qua such dismissal not mentioned
in application for condonation of delay---Effect---Such conduct of applicant would
amount to concealment of material facts from court---Such fact alone would be sufficient
not to exercise equitable jurisdiction/discretion in his favour---Name of applicants'
counsel was mentioned in cause list of relevant date---Respondent, after granting leave to
appeal had made application for dismissal of appeal for its filing against dead persons---
Petitioners had not replied such application, which showed that they after granting leave
had not contacted their counsel---Petitioners had failed to explain delay of each day---
Petitioners'' plea to have come to know of dismissal of appeal through friend three
months later would not be a ground to condone delay of 84 days---Vested rights had
accrued in favour of respondent by expiry of time---Supreme Court dismissed application
for restoration of appeal as time-barred.

Badri Prasad's case 1933 All. 294 rel.

(h) Limitation Act (IX of 1908)---

----S. 5---Supreme Court Rules, 1980, O.XV, R.S---Delay, condonation of---Expiry of


limitation would vest a person with a valuable right, which could not be taken away by
condoning delay---Negligence regarded as human would be condonable, but not gross
negligence---Court must demand strict proof of sufficient ,cause for each day of delay---
Sufficient cause could be ascertained from contents of application---Involvement of an
important point in a case would not allow court to exercise. its discretion in an arbitrary
way to override provisions of Limitation Act, 1908 and Supreme Court Rules, 1980---
Principles.

The courts have been lenient and have been condoning some negligence i.e. negligence to
the extent to which it is regarded as human, but gross negligence had never been
condoned, but courts had always been strict in demanding proof of sufficient cause for
every day, which expired after the period of limitation.' This eau be ascertained only from
the contents of application.

Law of limitation is to be construed strictly, coupled with the maxim that each day of
delay has to be explained by the party concerned. Where long period of delay has not
been explained, then, application would merit dismissal as time-barred.

Even if an important point is involved in a case, that would not, in any case, allow the
Court to use its discretion in arbitrary way to override the provisions of Limitation Act,
1908 and Supreme Court Rules, 1980.

Expiry of limitation vests a person with a valuable right. It cannot be taken away by
condonation of delay. It is a well-known maxim "delay defeats equities", and the words
of Lord Camdan "a Court of equity has always refused its aid to stale demands, where a
party has slept over upon his rights and acquiesced for a great length of time".

Muhammad Younis Bhatti, Advocate Supreme Court for Petitioners.

Abdul Baseer Qureshi, Advocate Supreme Court for Respondents.

Date of hearing: 8th May, 2007.

JUDGMENT

CH. IJAZ AHMED, J.--- Brief facts out of which the present C.M.A. arises are that
petitioners filed suit for declaration against the respondents in the Court of Senior Civil
Judge, Islamabad. Respondents filed written statement controverting allegations levelled
in the plaint. Out of the pleadings of the parties the trial Court framed eight issues. The
learned trial Court decreed the suit vide judgment and decree, dated 15-5-1986.
Respondents being aggrieved filed appeal against the petitioners in the Court of
Additional District Judge, Islamabad, who accepted the same vide judgment and decree,
dated 29-11-1987. Petitioners being aggrieved filed Civil Revision No.37-D of 1988 in

Page No. 2 of 4
the Lahore High Court, Rawalpindi Bench, Rawalpindi. The learned. High Court
dismissed the same vide judgment, dated 15-11-2000. Petitioners being aggrieved filed
C.P. No.761 of 2001 before this Court and leave was granted. Out of which C.A. No.2568
of 2001 has arisen.. During the pendency of the appeal respondents filed C.M.A. No.1720
of 2002 with the prayer for the dismissal of the appeal on the ground that petitioners have
filed appeal/petition against respondents Nos.1 and 2 Mirza Nasir Abbas and Mst.
Maryam Begum. Respondent No.1 Mirza Nasir Abbas had died on 12-10-1992 whereas
respondent No.2 Mst. Maryam Begum died on 10-10-1998. Therefore, petitioners have
riled appeal against dead persons which is incompetent and not maintainable.
Respondents filed the said application on 29-7-2002 and notice was also sent to the
petitioners by the Advocate-on-Record of the respondents as is evident from page 6 of
piper book of C.M.A. No.1720 of 2002. The said appeal was fixed before this Court on 8-
6-2005 which was dismissed for non prosecution in presence of Mr. Abdul Baseer
Qureshi, Advocate Supreme Court and Mr. Ch. Akhtar Ali, Advocate-on-Record for the
respondents. The petitioners have filed C.M.A. No.683 of 2007 for restoration of the said
appeal on 21-3-2007. The application is barred by 621 days.

2. The learned counsel of the petitioners submits that Mr. Anwar H. Mir, Advocate-on-
Record of the petitioners expired about 3 years ago. The said appeal was fixed for hearing
on 8-6-200.5 but the petitioners were not informed nor learned counsel for the petitioners
was informed about the elate of hearing as learned Advocate on-Record has already
expired. Petitioners came to know about the dismissal of the appeal on 6-3-2007 and
Tiled present application for restoration within time from the date of knowledge. He
further submits Thal on account of sad demise of Mr. Anwar Mir, Advocate-on-Record
due to this, their Advocate did not receive information about the fixation of the appeal on
the said date. He further maintains that valuable rights have accrued to the petitioners in
view of the leave granting order, dated 22-1 1-2001.

3. The learned counsel of the respondents submits that cause list dated 8-6-2005 has
clearly shown the name of the counsel of the petitioners, namely, Mr. Muhammad Munir
Peracha and Anwar H. Mir, Advocate-on-Record. He further urges that petitioners had
not mentioned source of information qua their knowledge that they had got information
about the dismissal of their appeal for non-prosecution on 8-6-2005 or 6-3-2007. He
further urges that valuable rights had accrued to the respondents in view of the order,
dated 8-6-2005 by efflux of time. He further maintains that appeal was liable to be
dismissed as the petitioners had filed petition/appeal against the dead persons.
Respondents have filed C.M.A. No.1720 of 2002 for dismissal off' the appeal on the said
ground -but petitioners have failed to file any reply to the application till date.

4. We have given our anxious consideration to the submissions made by the learned
counsel of the parties and have perused the record. It is an admitted fact that respondents
have filed aforesaid application for dismissal of the appeal as the petitioners have filed
appeal against respondents Nos.1 and 2 who had already died before filing of
petition/appeal before this Court. Petitioners have not filed any application for
rectification of the same. There are' ample authorities to show that there can be no
petition/appeal against the dead persons as it would be nullity. See Partap Chand v.
Krishna Devi AIR 1988 Delhi 267. It is pertinent to mention here that petitioners have
riled petition/ appeal against five respondents out of which two died before filing of
petition/appeal before this Court. Their Haines could be struck off under Order I, rule
10(2), C.P.C. It is settled law that condonation of delay is discretion of the Court to
condone or not to condone the delay after its C satisfaction that there was sufficient cause
for condonation of delay. The aforesaid facts qua application of the respondents are only
mentioned to exercise discretion for condoning delay. It is duty and obligation of the
Court to exercise its discretion keeping in view the principle of equity and fairplay in
judicial manner and has no power to exercise discretion D arbitrary. See Kanshi Ram's
case AIR 1932 Lah. 183, Kishan Chand's case AIR 1942 Lah. 94, Arura's case AIR 1947
Lah. 76 and Badri Prasad's case 1933 All. 294. It is settled law that object of law of E
limitation is to help the vigilant and not to the indolent. It is pertinent to mention here that
petitioners have not mentioned in their application source of knowledge qua the dismissal
of their appeal for non-prosecution by this Court. This fact brings the case in the area that
the petitioners have concealed the material facts from this Court which are sufficient not
to exercise equitable jurisdiction/discretion in their favour. Petitioners' allegation that

Page No. 3 of 4
they were all along unaware of the dismissal of their appeal about 621. days did not
fortify any circumstance of the case in hand as mentioned above. Petitioners have not
mentioned source of knowledge qua dismissal of their appeal on 8-6-2005. It is no doubt
that the Courts had been lenient and had been condoning some negligence i.e. negligence
to the extent to which it is regarded as human but .gross negligence had never been
condoned but Courts had. always been strict in demanding proof of sufficient cause for
every day which has expired alter the period of limitation. This can be ascertained only
from the contents of application. Petitioners did not mention the source of information
qua their knowledge with regard to the dismissal of their appeal on 8-6-2005. By efflux
of time respondents have acquired vested rights in view of dismissal of their appeal for
non-prosecution as mentioned above. The same is barred by 621 days. The name of their
counsel was also mentioned in the cause list off' the said date. Leave was granted on 22-
11-2001. Respondents have filed C.M.A. No.1720 of 2002 for dismissal of appeal for
filing the same against the dead persons. I Petitioners have not filed reply to the said
application. It appears that the petitioners have not contacted their counsel during this
period till the dismissal of their. appeal for non-prosecution on 8-6-2005. In case all the
facts are put in juxta position even then petitioners failed to explain delay of each day. We
have given due weight to the affidavit of counsel of the petitioners inspite of that we are
constrained not to exercise discretion in favour of the petitioners in view of the aforesaid
circumstances and conduct of the petitioners. Law of limitation is required to be
construed strictly, coupled with the maxim as mentioned above that each day off' delay
has to be explained by the party concerned where long periods off' delay were not
explained, therefore, application merits dismissal as time barred. Petitioners came to
know about dismissal through friend three months later. No ground to condone delay of
84 days. See Sher K Muhammad's case 1981 SCMR 212. Even if an important point is
involved in a case that would not, in any way, allow the Court to use its discretion in an
arbitrary way to override the provisions of the Limitation Act and the Supreme Court
Rules. Therefore, we are not inclined to condone the delay as respondents have accrued
vested M rights by efflux of time. Expiry off' limitation vests a person with a valuable
right. It cannot be taken away by condonation of delay. It is well known maxim "Delay
defeats equities" and words of Lord Camdan, a Court of equity "has always refused its
aid to stale demands, where a party has slept upon his rights and acquiesced for a great
length of time".

5. In view of what has been discussed above we find no merits in this C.M.A. which is
dismissed as time-barred.

S.A.K./R-11/SC Application dismissed.

Page No. 4 of 4
2007 S C M R 882

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

MUHAMMAD SHAHBAN and others----Petitioners

Versus

FALAK SHER and others----Respondents

C.P.L.A. No.3231-L of 2001, decided on 28th February, 2007.

(On appeal from the judgment/order, dated 15-8-2001 passed by the Lahore High
Court, Lahore in Writ Petition No.1231 of 1991).

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

----S. 52---Civil Procedure Code (V of 1908), O.I, R.10---Transferee pendente lite---


Impleading such transferee as party in suit---Transferee not alleged to have purchased
property by fraud or misrepresentation or collusion with defendant---Held, transferee
would be a proper party.

Mukhtar Beg's case 2000 SCMR 45 distinguished.

Mst. Sant Kaur's case AIR 1946 Lah. 142; Rustam Ali's case 1988 CLC 779; Malik
Muhammad Iqbal's case 1990 CLC 670; PLD 1970 SC 288 and PLD 1993 SC 53 ref.

Khaista Jan's case 1984 SCMR 709; Rashid Ahmad's case 1997 SCMR 171; Fazal
Karim's case PLD 2003 SC 818; M. Zafar-uz-Zaman's case PLD 2001 SC 449; Haji
Abdullah's case 1987 SCMR 1825 and Abdul Wali Khan's case PLD 1975 SC 463 rel.

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

----O. I, R.10-Addition of parties in suit---Scope---Court vested with wide discretion


to add parties at any stage of suit to avoid multiplicity of proceedings.

Ghulam Ahmad Chaudhry's case PLD 2002 SC 615 rel.

(c) Constitution of Pakistan (1973)---

----Arts. 189 & 190---Judgment of Supreme Court would be binding on each and
every organ of the State.

(d) Administration of justice---

----Judge must wear all the laws of country on the sleeve of his robe----Failure of
counsel to properly advise Judge would not be a complete excuse in the matter.

Muhammad Sarwar's case PLD 1969 SC 278 rel.

Mian Allah Nawaz, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-


Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th February, 2007.

JUDGMENT

CH. IJAZ AHMED, J.--- The detailed facts out of which the present petition arises

Page No. 1 of 4
are that Falak Sher and three others filed suit for declaration in the Court of Civil
Judge, Bahawalpur against Mst. Sharifan Bibi present petitioner No.3 on 3-12-1985
wherein the respondents have sought declaration challenging the validity of following
mutations:---

(i) Mutation No.925, dated 18-6-1979, (ii) Mutation No.1960, dated 18-11-
1980, (iii) Mutation No.974, dated 7-7-1981 and (iv) Mutation No.1043, dated
24-4-1984.

2. Ahmad Hassan had transferred various tracts of land to Mst. Sharifan Bibi
petitioner No.3 by way of Tamleek as depicted from the aforesaid mutations. During
the pendency of the suit filed by Falak Sher and others, Ahmad Nawaz also filed a suit
against Mst. Sharifan Bibi for specific performance of the contract in the Court of
Civil Judge, Bahawalpur on 30-12-1986. Consent decree was passed in favour of
Ahmad Nawaz on 6-2-1989 who sold the land obtained by him through consent
decree to petitioners Nos.1, 2, 14 and 15 predecessor-in-interest of respondents
Nos.16-A to 16-N, 17 to 19 through various mutations sanctioned on 30-4-1989, 5-12-
1989 as evident from the contents of their application. The trial Court framed 8 issues
in the suit for declaration filed by the respondent against Sharifan Bibi on 17-3-1986.
Petitioner No.3/defendant in the said suit was granted various opportunities to
produce her evidence but she failed to avail the same, consequently, the trial Court
closed the evidence on 22-5-1989 under Order XVII, rule 3, C.P.C. Petitioner
No.3/defendant filed revision petition before the Additional District Judge who
dismissed the same vide order, dated 1-7-1989. Petitioners filed application under
Order I, rule 10, C.P.C. in the suit for declaration before the trial Court on 1-3-1990.
The respondents filed written reply and controverted the allegations levelled in the
application. The trial Court after hearing the arguments of counsel for the parties,
accepted the same vide order, dated 29-10-1990. Respondents Nos.1 to 4 being
aggrieved filed appeal in the Court of Additional District Judge who dismissed the
same vide judgment dated 30-5-1991. Respondents being aggrieved filed writ petition
in the Lahore High Court which was accepted and orders of the Courts below were set
aside vide impugned judgment, dated 15-8-2001. Hence, the present petition.

3. The learned counsel for the petitioners submits that orders of the trial Court as
affirmed by the First Appellate Court thereby impleading petitioners as party to the
suit for specific performance was unjustifiably reversed by the High Court in exercise
of its constitutional jurisdiction. Petition was fixed before this Court on 21-12-2006 in
view of the aforesaid contention, office was directed to issue notice to the respondents
for a date in the month of January, 2007. Office sent notice to the respondents Nos. 1
to 4 and according to report of process-server, service of the respondents have been
effected who had refused to receive the summons. Despite service, respondents did
not enter appearance, therefore, ex parte order is passed against them.

4. We have considered the submissions made by counsel for the petitioner and have
perused the record. The learned High Court had reversed the orders of the Courts
below on the ground that petitioners had purchased the land in question after filing the
suit by the respondents Nos.] to 4 against the petitioner No.3 in the Court of Civil
Judge on 3-12-1985 and the petitioners have allegedly purchased the land in question
from Ahmad Nawaz vide mutation given in their applications dated 30-4-1989, 5-12-
1989 in view of principle of lis pendens in terms of Order I, rule 10, C.P.C. and
section 52 of the Transfer of the Property Act as law laid down by various High
Courts and this Court. The learned High Court had non-suited the petitioners in view
of following precedents:

(i) Mukhtar Beg's case 2000 SCMR 45, (ii) Mst. Sant Kaur's case AIR 1946
Lah. 142, (iii) Rustam Ali's case 1988 CLC 779 and (iv) Malik Muhammad
Iqbal's case 1990 CLC 670.

5. It is pertinent to mention here that learned High Court had placed reliance on the
judgment of the Mukhtar Beg's case (supra) of this Court and the other judgments as
mentioned above are not of this Court. Mukhtar Beg's case (supra) is distinguished on
facts and law. In Mukhtar Beg's case, the suit was decreed against the person from

Page No. 2 of 4
whom subsequent purchaser claimed rights and original claimant of the property in
question was died. Therefore, Mukhtar Beg's case (supra) is distinguished on facts
and law. The issue involved in the present case has already been decided by this Court
in Khaista Jan's case 1984 SCMR 709. The relevant facts and observation are as
follows:

"The brief facts strictly relevant to the present petition stated at the bar are that
Fakhar-uz-Zaman and others filed a suit against Malik Amin and others.
Subsequently, the respondents filed application that they having purchased the
suit property during the pendency of the suit from the plaintiffs should be
impleaded as plaintiffs. This application was allowed."

6. The order of the trial Court was upheld by this Court in the following terms:--

"In the facts and circumstances of the case, the order of the trial Court is not
only just and fair but is also in accordance with the dictates and the principles
regarding the necessary parties."

7. The aforesaid proposition of law was considered by this Court in Rashid Ahmad's
case 1997 SCMR 171 and laid down the following principle:--

"The appellant having purchased the suit property from respondent No.2
(luring pendency of appeal, there was not only an assignment and creation of
interest in respect of the property which was subject, matter of suit in his
favour but he was also a person claiming through respondent No.2. The
appellant having stepped into the shoes of respondent No.2 having purchased
the suit property during the pendency of the proceedings was entitled to be
impleaded as respondent in the appeal."

8. The aforesaid proposition of law was again re-affirmed by this Court in Fazal
Karim's case PLD 2003 SC 818. The relevant observation is as follows:--

"No doubt, the registered agreement to sell dated 1-10-1979 and the
subsequent sale-deed dated 30-12-1979 had taken place during the pendency
of appeal yet the future complications and confusions could have been avoided
through the impleadment of Fazal Karim and Mazhar Shah in the appeal.
There is no harm at all if a vendee of a sale hit, if at all by the principle of lis
pendens, is impleaded as party to the suit or appeal, as the case may be."

9. It is pertinent to mention here that respondents had not alleged that petitioners had
purchased the property in question by fraud or by misrepresentation or collusion with
the petitioner No.3 or Ahmad Nawaz, therefore, learned High Court was not justified
to set aside the orders of the Courts below while exercising power under section 115,
C.P.C. The impugned judgment is not in consonance with the law laid down by this
Court in M. Zafar-uz-Zaman's case PLD 2001 SC 449. The petitioners have purchased
the property in question during the pendency of the suit, therefore, petitioners are
proper party as law laid down by this Court in various pronouncements. See Haji
Abdullah's case 1987 SCMR 1825 and Abdul Wali Khan's case PLD 1975 SC 463. It
is a settled law that wide discretion is vested in the Court to add parties at any stage of
the suit to avoid multiplicity of proceedings as law laid down by this Court in Ghulam
Ahmad Chaudhry's case PLD 2002 SC 615. The learned High Court had decided the
case in violation of the dictum laid down by this Court in various pronouncements
mentioned hereinabove. It is a settled principle of law that judgment of this Court is
binding on each and every organ of the State by virtue of Articles 189 and 190 of the
Constitution. The learned High Court had committed material irregularity while
setting aside orders of the Courts below which were passed by the Courts below in
exercise of their discretionary powers. See PLD 1970 SC 288 and PLD 1993 SC 53
and 1997 SCMR 1139. It is settled law that a Judge must wear all the laws of the
country on the sleeve of his robe and failure of the counsel to properly advise him is
not a complete excuse in the matter. See Muhammad Sarwar's case PLD 1969 SC 278.

10. In view of what has been discussed above, this petition is converted into appeal

Page No. 3 of 4
and the same is allowed. Consequently, the judgment of the learned High Court is set
aside and the orders of the Courts below are restored with no order as to costs.

S.A.K./M-26/SC Appeal accepted.

Page No. 4 of 4
2 0 0 7 S C M R 569

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ

OVERSEAS PAKISTANIS FOUNDATION and others----Appellants

Versus

Sqn. Ldr. (Retd.) Syed MUKHTAR ALI SHAH and another----Respondents

Civil Appeal No.2027 of 2004, decided on 4th December, 2006.

(On appeal from the judgment, dated 28-6-2004 passed by the Peshawar High Court,
Peshawar, in R.F.A. No.7 of 1996).

(a) Constitution of Pakistan (1973)---

----Arts. 4 & 5 (2)---Protection of law---Act of public functionaries---Principle---Nobody


can be penalized by act of public functionaries in view of Art.4 read with Art.5(2) of the
Constitution---Nobody is allowed to take benefit of his own misdeeds.

Raja Muhammad Fazal Khan's case PLD 1975 SC 331; Wali Muhammad's case PLD
1974 SC 106; Tufail Muhammad's Case PLD 1965 SC 269 and Abdul Rashid's case 1969
SCMR 141 rel.

(b) Approbate and reprobate---

----Nobody is allowed to approbate and reprobate.

Ghulam Rasool's case PLD 1971 SC 376 rel.

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

----O. I, R. 10 & O. XLI, R. 33---Damages---Misjoinder of necessary parties---Appellate


jurisdiction of High Court---Scope---Plaintiff filed suit for damages on the ground that
while on official duty, he met an accident in which he became handicapped due to which
he lost his service---Suit was dismissed by Trial Court for not impleading necessary
parties but High Court in exercise of appellate jurisdiction, decreed the suit in favour of
plaintiff---Validity---Defendants themselves had not provided facility of driver and sent
him on official duty where he met with an accident---Later on defendants terminated
services of plaintiff on account of his health, therefore, High Court was justified to
reverse the judgment of Trial Court---High Court in its capacity as appellate Court
possessed jurisdiction to come to its own conclusion on the basis of evidence adduced
before Trial Court by parties and resultantly could competently reverse the finding of
Trial Court on the questions of fact involved in issues---High Court, after proper
appreciation of evidence reversed finding of Trial Court with cogent reasons and was
justified that suit filed by plaintiff was not time-barred---High Court was also justified
that suit was not liable to be dismissed on the ground that plaintiff had not impleaded all
necessary parties as defendants in his suit---Defendants were liable to pay damages to
plaintiff, as competent authority had sent him on official duty without providing facility
of driver---Appeal was dismissed.

Mian Ghulam Bari's case 1995 MLD 480; Muhammad Yousaf's case 1993 SCMR
1185; Mukhtar Ahmad's case PLD 1956 Sindh 124 and Niaz Ahmad's case PLD 2006 SC
432 rel.

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

---O. VI, R. 1--- Pleadings--- Written statement--- Scope--- Statement made in written
statement cannot be treated as evidence in the case.

Page No. 1 of 4
Mst. Khair-un-Nisa's case PLD 1972 SC 25 rel.

(e) Evidence---

---Statement made in written statement cannot be treated as evidence in the case.

Mst. Khair-un-Nisa's case PLD 1972 SC 25 rel.

Farrukh Jawad Panni, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record
for Appellants.

Mushtaq Ali Tahirkheli, Advocate Supreme Court for Respondent No.1.

Date of hearing: 4th December, 2006.

JUDGMENT

CH. IJAZ AHMED, J.--- The appellants have filed direct appeal against the judgment
of Peshawar High Court, dated 28-6-2004 wherein the learned High Court had reversed
the judgment of the trial Court, dated 25-5-1995. Necessary facts out of which the present
appeal arises are that respondent No.1/plaintiff filed suit for recovery against the
appellants and respondent No.2 in the Court of Civil Judge Peshawar. Respondent
No.1/plaintiff claimed following amount from the appellants/ respondent No.2:--

(a) Recovery of Rs.1,50,000 as cost of medical treatment for injuries sustained by


the plaintiff in a road accident during the course of employment of the defendants.

(b) Recovery of Rs.5,00,000 for permanent disability caused to the plaintiff


during performance of duty as employee of the defendants, whereby his earning
capacity has been marred on account of road accident.

(c) Recovery of Rs.3,50,000 for aggravating the conditions of injuries of the


plaintiff sustained during the employment of defendants, by the defendants by
forcing plaintiff to perform such duties which were against the considered
medicoadvise of the various medical specialist.

(d) Recovery of Rs.19,581.53 out of which Rs.17,500 has been forcibly taken
from the plaintiff by the defendants and Rs.2,081.53 is going to be deducted from
the emoluments of the plaintiff by the defendants against his consent.

(e) Recovery of Rs.5,00,000 as damages for wrongful, unlawful, illegal and mala
fide termination of service of plaintiff.

The contents of plaint reveal that respondent No.1 filed a suit against the appellants and
respondent No.2 for damages alleging that during service as Principal in Group No.9 in
the School at Hayatabad Peshawar while returning from Islamabad to Peshawar on 29-7-
1981 met with a road accident near village Shaidu on G.T. Road due to which he
remained hospitalized for more than 7 months. Subsequently respondent No.1 was
transferred to Islamabad and ultimately on 10-6-1984 he was terminated from service.
For the period of December, 1980 to June, 1984 the respondent was neither paid the
emoluments and salary etc. as alleged nor paid the compensation awarded as a result of
inquiry conducted by the Enquiry Committee in which the driver of the Jeep of Pakistan
Army was held responsible. Appellants filed written statement, controverting the
allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court
framed 15 issues. Appellants after filing written statement did not participate in the
proceedings before the trial Court. Respondent No.1 had produced eight witnesses to
prove his case against the appellants. The Civil Judge, Peshawar/the trial Court vide its
judgment, dated 25-5-1995 dismissed the suit of the respondent No. 1 for the following
reasons:-

(i) Respondent No.1 failed to implead proper and necessary party i.e. Pakistan

Page No. 2 of 4
Army as defendants in the suit because he had suffered due to the negligence of
the driver of the Pakistan Army.

(ii) Suit for damages was to be filed within one year from the date of accrual of
injuries or the loss of limbs.

Hence the present appeal.

2. The learned counsel for the appellants submits that services of respondent No. 1 was
terminated by the appellants in accordance with the terms and conditions of contract by
giving one month notice and this fact was not considered by the learned High Court in the
impugned judgment. He further maintains that respondent No.1 had claimed damages in
general terms without specifying particular damages sustained by him qua each item and
failed to prove the damages claimed by him and this fact was also not considered by the
learned High Court in its true perspective. He further maintains that learned trial Court
was justified to dismiss the suit of the respondent/plaintiff with cogent reasons as the
plaintiff/respondent had not impleaded the proper and necessary party as defendant i.e.
Pakistan Army in his suit and the suit was also not filed by the respondent within the
prescribed period of one year under the Limitation Act in view of section 22.

3. The learned counsel for the respondent No.1/plaintiff has supported the impugned
judgment. He submits that appellants had tiled written statement and thereafter
disappeared. The evidence of the respondent/plaintiff was recorded ex pane. The
respondent/plaintiff had proved the case by producing his evidence and witnesses of the
respondent/plaintiff were not cross-examined by the appellants, therefore, learned High
Court was justified to reverse the judgment of the trial Court. He further maintains that
plaintiff/respondent had proved all the claims in his evidence which were duly
corroborated by the sufficient evidence on record.

4. We have considered the submissions made by learned counsel for the parties and
perused the record. It is admitted fact that respondent/ plaintiff had gone to Islamabad on
official duty. The vehicle was provided by the appellants to him but the driver was not
provided. It is a settled law that nobody is penalized by the act of public functionaries in
view of the Article 4 read with Article 5(2) of the Constitution. It is also a settled law that
nobody is allowed to take the benefit of his own misdeeds as law laid down by this court
in the following judgment:-

(i) Raja Muhammad Fazal Khan's case PLD 1975 SC 331, (ii) Wali Muhammad's
case PLD 1974 SC 106, (iii) Tufail Muhammad's case PLD 1965 SC 269 and (iv)
Abdul Rashid's case 1969 SCMR 141.

It is also a settled law that nobody is allowed to approbate and reprobate as law laid down
by this Court in Ghulam Rasool's case PLD 1971 SC 376. It is pertinent to mention here
that appellants themselves have not provided him the facility of driver and send him on
official duty and he met with an accident while coming back from Islamabad to Peshawar
and his services were also terminated on account of his health, therefore, learned High
Court was justified to reverse the judgment of the trial Court. The learned High Court in
its capacity as appellate Court possessed the jurisdiction to come to his own conclusion
on the basis of. evidence adduced before the trial Court by the parties and resultantly the
learned High Court could competently reverse the finding of the trial Court on the
questions of fact involved in issues. The learned High Court after proper appreciation of
evidence had reversed the finding of the trial Court with cogent reasons as is evident
from paras.8 to 10 of the impugned judgment which are reproduced hereunder:--

"Insofar as the question that Pakistan Army was a necessary party is concerned,
the same is not a valid ground. The appellant met with an accident during his
official duty, therefore, he could sue the respondents-Organization as he was their
employee. The trial Court has neither acted in accordance with law nor
appreciated the evidence on record especially the evidence of the officials of the
respondents/defendants-Organization wherein they had categorically admitted the
relevant facts agitated by the appellant. The learned trial Court also non-suited the
appellant that suit was filed after the elapse of one year without quoting any

Page No. 3 of 4
relevant and direct provision of law. However, even if it is presumed that the suit
has to be filed within one year, the elapse of time, if any, is conceivable from the
facts of the case on record. The appellant was hospitalized for more than seven
months and. even thereafter he was in a miserable/disabled condition. Still when
he was denied, he persuaded his case actively till he was terminated, hence the
delay is safely condonable.

In view of the above discussion, I hold that in the circumstances of this case, the
suit of the appellant is decreed to the extent of prayers (a), (b), (d) which relate to
damages whereas prayer (c) is rejected, however, in the course of proceedings if
the respondents-Organization could succeed by bringing substantial proof as to
the payment of prayers (a) and (d), that can be taken into consideration by the
Executing Court at the time of execution of the decree."

5. It is a settled law that statement made in the written statement cannot be treated as
evidence in the case. See Mst. Khair-un-Nisa's case PLD 1972 SC 25. The learned trial
Court erred in law to dismiss the suit of the respondent whereas the learned High Court
was justified to reverse the same with cogent reasons. It is an admitted fact on the basis of
evidence on record that accident had taken place on account of the negligence of the
driver of the Pakistan Army. The amount of damages was given by the Pakistan Army to
the respondent/plaintiff which had taken back by the appellants. As mentioned above, the
claim of the respondent No.1/plaintiff was not controverted by the appellants, therefore,
learned High Court was justified to award the same to the respondent/plaintiff. See Mian
Ghulam Bari's case 1995 MLD 480. The learned High Court was justified to come to the
conclusion that suit filed by the respondent was not time-barred and also that suit was not
liable to be dismissed on the ground that respondent/plaintiff had not impleaded all the
necessary parties as defendants in his suit as law laid down by this Court in Muhammad
Yousif's case 1993 SCMR 1185. It is pertinent to mention here Pakistan Army in the
present case is not necessary and proper party in view of aforesaid circumstances as the
Pakistan Army had already paid the damages to the respondent/plaintiff which had taken
back from him. Even otherwise the respondent had filed the suit against the appellants in
view of the liability of the appellants as the respondent/plaintiff was their employee at the
relevant time. His services are terminated by the appellants, therefore, dispute in question
is between the respondent No.1 and appellants. The appellants are liable to pay the
damages to the respondent/plaintiff because the competent authority had sent him on
official duty without providing facility of the driver. See Mukhtar Ahmad's case PLD
1956 Sindh 124. This Court has already observed in Niaz Ahmad's case PLD 2006 SC
432 as "it is a high time to put the nation on a right path to promote the law of tort".

6. For what has been discussed above, the appeal has no merit, therefore, the same is
dismissed.

M.H./O-5/SC Appeal dismissed.

Page No. 4 of 4
2006 S C M R 683

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rahman Ramday, JJ

C.P.L.A. No.1530/L of 1999

NAWAZISH HUSSAIN and others---Petitioners

Versus

MEHR BIBI (deceased) through L.Rs.---Respondents

(On appeal from the judgment, dated 29-6-1999 of the Lahore High Court, Lahore,
passed in Civil Revision No.969 of 1992).

C.P.L.A. No.1531/L of 1999

Mian NAWAZISH HUSSAIN and others---Petitioners

Versus

MAZHAR HUSSAIN and others---Respondents

(On appeal from the judgment, dated 29-6-1999 of the Lahore High Court, Lahore,
passed in Civil Revision No.970 of 1992).

C.P.L.A. No.1532/L of 1999

Mian NAWAZISH HUSSAIN and others---Petitioners

Versus

MAZHAR HUSSAIN and others---Respondents

(On appeal from the judgment, dated 29-6-1999 of the Lahore High Court, Lahore,
passed in Civil Revision No.971 of 1992).

C.M.A. No.587/L of 2002 in C.P.L.A. No.1530/L of 1999

(For impleadment as party)

NAWAZISH HUSSAIN and others---Petitioners

Versus

MEHR BIBI and others ---Respondents

C.P.L.As. Nos.1530-L to 1532-L of 1999 and C.M.A. No.587-L of 2002 in C.P.L.A.


No.1530-L of 1999, decided on 1st January, 2003.

(a) Specific Relief Act (1 of 1877)---

----S. 42---Constitution of Pakistan (1973), Art. 185(3)---Declaration of title---


Concurrent findings of fact by the Courts below---Trial Court decided the suit in favour
of plaintiff and judgment and decree was maintained by Appellate Court---High Court
dismissed the revision petition on the ground that no reasons could be disclosed to
interfere with the concurrent findings of the two Courts below--- Validity---Defendants
failed to offer any reason before Supreme Court against consistent findings of three
Courts---Neither the judgments and decrees were a result of misreading or non-reading
of any evidence nor the consistent findings of' fact were arbitrary or whimsical---Leave

Page No. 1 of 4
to appeal was refused.

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

----O. I, R. 10---Constitution of Pakistan (1973), Art.185(3)---Joinder of necessary


parties---Application for joining the applicants as party to the proceedings was filed in
Supreme Court after 42 years of filing of the suit---Effect---Applicants never sought to
become party to the civil suit nor did they take any steps to file an independent suit to
claim their share in the property in question in spite of the fact that the applicants had
knowledge of the filing of the civil suit---Even at the appellate and revisional stages the
applicants maintained silence---Supreme Court declined to entertain such
application/claim at such belated stage---Law favours only the diligent and not the
negligent---Application was dismissed.

Rana Abdur Rahim Khan, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-
Record for Petitioners.

M. Zafar Chaudhry, Advocate Supreme Court with M. Ozair Chughtai, Advocate-on-


Record for Respondents.

M. Ismail Qureshi, Senior Advocate Supreme Court for Applicants.

Date of hearing: 1st January, 2003.

ORDER

KHALIL-UR-REHMAN RAMDAY, J.---This order shall dispose of C.P.L.As.


Nos.1530, 1531 and 1532-L of 1999 as all these petitions are directed against the same
judgment, dated 29-6-1999 passed by the Lahore High Court deciding Civil Revisions
Nos.969, 970 and 971 of 1991 whereby a consolidated appellate judgment, dated 1-3-
1992 passed by a learned Additional District Judge, Gujranwala were confirmed. This
order shall also decide C.M. No.587-L of 2002 which has been filed for impleadment of
the applicants as party to C.P.L.A. No.1530-L of 1999.

2. One Muhammad Panah owned 3705 Kanals and 10 Marlas of land in village Pindi
Bhattian of Tehsil Faisalabad, 394 Kanals and 10 Marlas of land in Mauza Thatha
Kareem Dad of Tehsil Hafizabad and a piece of land measuring 1572 Kanals and 15
Marlas situated in village Jalal Pur Nau of Tehsil Faisalabad. He died issueless in the
year 1901 at which time besides his widow, namely, Mst. Begum Bibi, his sister Mst.
Sahib Bibi and his uncle Mauzam Khan were alive. As per the custom, the entire estate
left behind by the said Muhammad Panah devolved on his above-mentioned widow,
Mst. Begum Bibi as a limited owner. This Mst. Begum Bibi died on 24-4-1961 and the
above-mentioned sister of Muhammad Panah, namely, Mst. Sahib Bibi inherited the
said estate. She also died issueless on 6-3-1966 when the above-mentioned uncle of
Muhammad Panah, namely, Mauzam Khan is stated to have become the owner of the
entire above described property of Muhammad Panah by way of inheritance.

3. One Mehr Bibi the predecessor-in-interest of the present respondents, claiming to be


a daughter of the above-mentioned Mauzam Khan filed three separate suits bearing
No.182, 183 and 184 of 1960 of Tehsil Hafizabad and prayed for a decree that being a
daughter of Mauzam Khan she was entitled to 1/3rd of the property in question. She
had added that her brother, Muhammad Hussain, i.e. the predecessor-ininterest of the
present petitioners had deceitfully managed to manoeuvre the devolution of the entire
estate in question on him to the exclusion of all others including the said Mst. Mehr
Bibi.

4. All the said three suits were consolidated by the learned trial Judge, Hafizabad and as
a result of the trial the suit bearing No.183 of 1960 was dismissed by the learned trial
Judge through his above-mentioned judgment, dated 17-2-1979 as being barred by
limitation whereas the other two suits i.e. the one bearing No.182 of 1960, and the other
bearing No.184 of 1960 were decreed directing that the suit-land be divided amongst
the parties according to the Sunni Law of inheritance.

Page No. 2 of 4
5. Mst. Mehr Bibi plaintiff filed an appeal before the learned District Judge against the
dismissal of her suit No.183 of 1960 while Muhammad Hussain and others filed similar
appeals before the said learned Appellate Court against the above-mentioned judgment
and decree passed in favour of Mst. Mehr Bibi in Civil Suit No.182 and 184 of 1960.

6. These three appeals were also consolidated by the learned Appellate Court i.e. a
learned Additional District Judge at Gujranwala. Through his judgment, dated 1-3-1992
the said learned Appellate Judge found that Suit No.183 of 1960 filed by Mst. Mehr
Bibi had been wrongly dismissed as being hit by limitation and consequently decreed
the said suit. The appeals filed by Muhammad Hussain and others against the judgment
decreeing suits Nos.182 of 1960 and 184 of 1960 passed in favour of Mst. Mehr Bibi
were, however, dismissed.

7. The successors-in-interest of Muhammad Hussain questioned the said judgment of


the learned Additional District Judge as also of the learned trial Court before the
Honourable High Court through three separate Civil Revisions bearing Nos.969, 970
and 971 of 1992 which were also dismissed through the above-mentioned revisional
judgment, dated 29-6-1999.

8. As has been noticed above, Suit No.183 of 1960 was dismissed by the learned trial
Judge but this dismissal was not on account of any finding of fact and was in fact on
account of limitation. On the factual side the controversy which involved the resolution
of the lis between the parties i.e. whether Mst. Mehr Bibi was or was not a daughter of
Mauzam Khan and thus a sister of the predecessor-in-interest of the present petitioners
i.e. Muhammad Hussain etc. and whether she was or was to entitled to any share in the
property in question had been determined and decided in favour of Mst. Mehr Bibi even
by the learned trial Judge. This finding was confirmed by the learned Appellate Court.
The three revision petitions were dismissed by the Honourable High Court essentially
on the ground that no reasons could be disclosed to interfere with the concurrent factual
findings of the learned two Courts i.e. the learned trial Court and the learned Appellate
Court. Similar is the position before us. The learned counsel appearing for the
petitioners before us could not offer any reason as to why the consistent findings of the
three learned Courts should be disturbed. He could not show that the case was one of
misreading or non-reading of any evidence or that the consistent findings of fact were
arbitrary or whimsical.

9. In this view of the matter, we find no merit in these three petitions i.e. C.Ps.
Nos.1530, 1531 and 1532 of 1999 which are accordingly dismissed. Leave refused.

10. So far as C.M. No.587-L of 2002 is concerned, the same has been tiled by Rafiq
Hussain, Altaf Hussain, Zia Abbas, Kashif, Asif, Mst. Rifat Naheed, Mst. Riaz Begum,
Mst. Perveen Akhtar and Mst. Nawab Begum who claim to be the legal heirs and
successors-in-interest of one Mst. Bakhat Bhari as per para.No.6 of this application
which Mst. Bakhat Bhari is in turn stated to be the (laughter of Mauzam Khan i.e. the
father of Mst. Mehr Bibi and Muhammad Hussain above-mentioned. These applicants
pray for being impleadcd as a party to the above-mentioned C.P. No.1530-L/ 1999 as
they also claim a right to inherit a share in the land in question.

11. We have heard Mr. Muhammad Ismail Qureshi, Senior Advocate at some length.

12. The suit in question which has culminated in C.P. No.1530-L of 1999 was filed
along with other two connected suits in the year 1960. The said suits were decided in
the year 1979. As has been noticed above the appeals filed against the judgments and
decrees of the learned trial Court were decided by the learned Appellate Court in the
year 1992 which led to the three revision petitions before the Lahore High Court which
were decided in the year 1999 leading to the C.P.L.A. No.1530-L of 1999 and the two
connected petitions. It is after 42 years of the filing of the civil suit and after three years
of the filing of the C.P.L.As. in question that the applicants in C.M. No.587-L of 2002
have woken up to assert their share in the estate in question. They never sought to
become party to the civil suit nor did they take any steps to file an independent suit to
claim their share in the property in question in spite of the fact that they admittedly

Page No. 3 of 4
knew of the filing of the civil suits above-mentioned. Even in the appellate .and the
revisional stages the said applicants maintained silence and remained silent spectators.
It is not possible for this Court to entertain such an application/claim at such a belated
stage. Needless to say that the law favours only the diligent and not the negligent. It
may be added that the civil suit and the subsequent proceedings leading to the appeals,
the revisions and the petitions before us have only declared Mst. Mehr Bibi to be
entitled to her share in the property in question and the judgments passed in the matter
do not declare Mst. Mehr Bibi to be the sole owner of the entire estate in question.

13. In view of what has been noticed above, we find no merit in this application which
is also dismissed.

M.H./N-132/SC Petition dismissed.

Page No. 4 of 4
2006 S C M R 1067

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ZAHOOR HUSSAIN---Petitioner

Versus

Ch. NIAZ ALI and another---Respondents

Civil Petition for Leave to Appeal No.640/L of 2000, decided on 6th March, 2003.

(On appeal from the order, dated 13-1-2000 of the Lahore High Court, Multan Bench,
Multan, passed upon C.M. No.190/1998 in Writ Petition No.5857 of 1995).

Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---Civil Procedure Code (V of 1908), 0.I, R.10---Constitutional


petition before High Court---Impleading as necessary party---Suit property was
mutated in the name of petitioner but High Court refused to implead him as party to
the proceedings---Validity---As the disputed property was mutated in the name of the
petitioner, it would be in the interest of justice that the petitioner be impleaded so as
to avoid multiplicity of litigation which would follow in case of decision of main
Constitutional petition pending adjudication before High Court---Petition for leave to
appeal was converted into appeal and order passed by High Court was set aside---
Appeal was allowed. Riyasat Ali Chaudhry, Advocate Supreme Court with Mahmood
A. Qureshi, Advocate-on-Record for Petitioner.Ozair Ahmed Chughtai, Advocate-on-
Record for Respondent No.l.

Date of hearing: 6th March, 2003.

ORDER

TANVIR AHMED KHAN, J.--- Leave to appeal is sought against the order, dated
13-1-2000 of the learned Single Judge of the Lahore High Court, Multan Bench,
Multan, whereby C.M. No.190 of 1998 filed in Writ Petition No.5857 of 1995 filed by
the petitioner for his impleadment in the above writ petition was dismissed.It is the
case of the petitioner that the respondent claiming himself to be the holder of General
Power of Attorney secured an ex parte decree. On the basis of the above power of
attorney, he filed a declaratory suit on 9-6-1977 which was ex parte decreed against
Khaleeq-uz-Zaman, respondent No.2. On the strength of the said decree, he alienated
the disputed land to his sons on 27-9-1977.Respondent No.2, Khaleeq-uz-Zaman filed
an application under section 12(2), C.P.C. for setting aside the aforesaid ex parte
decree which was allowed by the learned trial Court through its order; dated 16-2-
1991. Respondent No.1 filed an appeal against the above order, which was dismissed
by the learned Additional District Judge, Vehari, through his order, dated 4-7-1995.
Thereafter, respondent No.1 filed Writ Petition No.5857 of 1995 before the Lahore
High Court at Multan Bench, Multan, which is still pending.It is contended by the
learned counsel for the petitioner that through mutual exchange the petitioner has
secured the disputed property and mutation to that effect has also been attested on 7-
8-1995, copy whereof is appended with this petition at page 51 of the paper book. On
the strength of the same, the petitioner on coming to know about the pendency of the
above writ petition moved an application for his impleadment which has been
dismissed through the impugned order. Hence, this petition for leave to appeal.We
have heard the learned counsel for the petitioner as well as learned Advocate-on-
Record for respondent No.l. Admittedly, the disputed property at this juncture stands
mutated in the name of the petitioner. In these circumstances it would be in the
interest of justice that the petitioner be impleaded so as to avoid multiplicity of
litigation which would follow in case of decision of the main writ petition which is
pending adjudication before the Lahore High Court. The dispute in this case though of

Page No. 1 of 2
General Power of Attorney but certainly it is in respect of the property stated to be
owned by respondent No.2, Khaleequz-Zaman.Resultantly, for what has been stated
above, the instant petition is converted into appeal and is allowed. The impugned
order, dated 13-1-2000 of the learned Single Judge is set aside. However, there will be
no order as to costs.

M.H./Z-9/SC Appeal allowed.

Page No. 2 of 2
2004 S C M R 1627

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ

ALI S. HABIB and others-----Petitioners

Versus

Dr. SHER AFGAN KHAN NIAZI and others---Respondents

Civil Petition No.2985 of 2003, decided on 15th January, 2004.

(On appeal from the order, dated 2-9-2003, of the Lahore High Court, Rawalpindi Bench,
Rawalpindi, passed in C.R. No.455 of 2003).

Civil Procedure Code (V of 1908)---

-----O. I, R.10(2)---Suit for damages against car manufacturing company and its
Directors---Loss of life in road accident due to failure of SRS Airbag system fixed in the
car---Directors of company claimed not to be personally responsible for failure of such
system, thus, prayed for striking out their names from array of defendants---Trial Court
dismissed such application, which judgment was upheld in revision by High Court---
Validity---Concurrent findings of fact to the effect that applicants being Directors had a
distinct liability in the matter than that of company itself, would not call for interference
at such stage---Issues had been framed and Trial Court had yet to decide the matter after
recording evidence--Matter being at preliminary stage, deletion of names of applicants
from sets of defendants would not be appropriate---Supreme Court dismissed petition and
refused leave to appeal.

Qadir H. Sayeed, Advocate Supreme Court with M.S. Khattak, Advocate-on-record for
Petitioners.

Mushtaq Hussain, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 15th January, 2004.

JUDGMENT

ABDUL HAMEED DOGAR, J.------Petitioners seek leave to appeal against the order,
dated 2-9-2003 passed by a learned Single Judge in Chambers of the Lahore High Court,
Rawalpindi Bench, Rawalpindi, whereby Civil Revision No.445 of 2003 filed by the
petitioners was dismissed and the order of the trial Court was maintained.

2. The background leading to the filing of the instant petition is that respondent No. 1, Dr.
Sher Afgan Khan Niazi filed suit for recovery of US $ 25 millions as
compensation/damages against petitioners the Chairman and Chief Executive
respectively of respondent No.4 Indus Motor Company Ltd. for the loss of life
occasioned to the family of his deceased son Bahram Khan by his death in road accident
due to failure of Supplemental Restrain System Airbag System fixed in Toyota Corolla
Motor Car No.LXZ-53 being driven by his deceased son. Initially, the petitioners filed an
application under Order VII. rule 11, C.P.C. for the rejection of plaint which was
dismissed by the trial Court vide order, dated 18-1-2003. The civil revision filed by the
petitioners against the said order was also dismissed in limine by the learned High Court
oil 1-4-2003.

3. Thereafter, it was on 24-2-2003, the petitioners moved an application under Order 1,


rule 10(2), C.P.C. for striking off their names from the array of defendants on the ground
that the plaint on the face of it prima facie failed to disclose any cause of action
whatsoever against them. According to the averments, the petitioners in any manner were
not personally responsible for the maintenance/inspection of the vehicle prior to and

Page No. 1 of 2
especially after it has left the place of manufacture. Moreover, the research and design of
SRS Airbag System was also not their personal responsibility.

4. The said application was resisted on the ground that the petitioners were equally
responsible for the failure of SRS Airbag System attached in the abovementioned car,
being Chairman and Chief Executive of respondent No.4 the manufacture concern. This
application was however, dismissed by the trial Court on 12-5-2003 holding that it was
premature to decide as to whether the petitioners were or were not liable for damages.
This order was challenged in Civil Revision No.455 of 2003 before the High Court which
was dismissed vide impugned order.

5. Mr. Qadir H. Sayeed, ASC learned counsel for the petitioners mainly urged that the suit
in personal capacity against the petitioners is not competent as it does not disclose any
material cause of action against them and that liability for a tortuous act allegedly
committed by a duly incorporated company cannot be attached to its servants on the basis
of principle of vicarious liability, as under the said principle, it is well settled that liability
flows from servant to the master and never from the master to servant.

6. On the other side, learned counsel for the respondent, vehemently controverted the
above contentions and argued that the averments in the plaint; certainly discloses the
cause of action against the petitioners as properly held by the trial Court as well as by the
High Court. According to him, respondent No.4 the manufacturing company can only be
sued through the petitioners its Chairman and Chief Executive. Since issues have been
framed and the evidence is yet to be recorded, as such, it would be premature to give any
findings on the above aspect of the matter at this stage.

7. The concurrent findings recorded by the trial Court and upheld by the High Court that
the petitioners being Directors of company have a distinct liability in the matter then that
of company itself do not call foul interference by this Court at this stage because it is yet
to be adjudicated upon by the trial Court after recording the evidence. Since the issues
have been framed and the evidence is yet to be 'recorded, therefore; the matter being at
the preliminary stage, it would not be appropriate to delete the names of the petitioners
from the set of the defendants. The petition being devoid of force is dismissed and leave
to appeal refused.

S.A.K./A-51/S Leave refused.

Page No. 2 of 2
P L D 2004 Supreme Court 70

Present: Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

ARDESHIR COWASJEE and others---Petitioners

Versus

KARACHI BUILDING CONTROL AUTHORITY and others---Respondents

Civil Petition No.2760 of 2001, decided on 16th September, 2003.

(On appeal from the judgment dated 6-9-2001 in Constitutional Petition No.D-179 of
2001 along with Miscellaneous Applications Nos.974, 984 and 541 of 2001, passed by
the High Court of Sindh at Karachi).

(a) Constitution of Pakistan (1973)-----

----Art. 199---Civil Procedure Code (V of 1908), Preamble--Constitutional jurisdiction of


High Court under Art.199 of the Constitution---Applicability of Civil Procedure Code,
1908 to the proceedings under Art.199 of the Constitution---Scope and extent--Provisions
of Civil Procedure Code, 1908 would regulate said proceedings and would not
necessarily depend; on the nature of jurisdiction of the Court--Constitutional petition, in
'the present case, wag filed wherein some assertions for the enforcement of civil rights
had been made, therefore, same would be civil proceedings and provisions of C.P.C.
would be applicable other than specifically barred, as such the said provisions would
apply in the exercise of High Court's jurisdiction in civil matters whatever may be the
nature of that jurisdiction.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1;


Federation of Pakistan and others v. Aftab Ahmad Khan Sherpao and others PLD 1992
SC 723; Shabir Ahmad and another v. Akhtar Alam and others (PLD 1994 SC 598); Ch.
Pervez Ellahi v. Province of Punjab (PLD 1993 Lahore 595); Malik Khanan v. Malik Baz
Muhammad Khan and others PLD 1983 Quetta 30 and Muhammad Nawaz and another v.
Abdul Ghafoor and others PLD 1981 Kar. 469 ref.

(b) Constitution of Pakistan (1973)-----

---Art. 199(3)(b)---Civil Procedure Code (V of 1908), O.XXXIX. Rr,1 & 2---


Constitutional jurisdiction of High Court---Making of interim order by the High Court
under Art.199(3)(b) of the Constitution---Time tested considerations for grant or refusal
of relief under O.XXXIX, Rr.1 & 2, C.P.C. viz. existence of prima facie case; irreparable
damage or injury to be caused and inconvenience could be the determining factors for
deciding interlocutory petitions in the Constitutional jurisdiction---Provision of Art.
199(3)(b) of the Constitution was to be read with the provisions contained in C.P.C. for
grant or refusal of interim relief as there was no bar or prohibition in their application
under the Constitution, considering also that Constitutional jurisdiction being paramount
and every form of limitation which normally would fetter the exercise would not
prevent/control the superior Court from exercising such powers, when-it would appear to
be expedient in the interest of justice.

(c) Constitution of Pakistan (1973)-----

----Art.199---Constitutional jurisdiction of High Court under Art. 199 of the


Constitution---Scope---Technicalities of the law ---Applicability--Extent---Held, in the
matter of entertainment of the Constitutional petitions and grant of relief in equitable and
discretionary jurisdiction, it would not be necessary to follow in entirety the technicalities
of the law but also by the substance of the controversy when the proceedings would
appear not tainted with mala fides of the fact---Technicalities would not prevent the Court
from exercising its Constitutional jurisdiction and granting relief to which otherwise
petitioner was entitled.

Page No. 1 of 5
Pakistan Engineering Council and others v. Engineer I.A. Osmani and others 1991 SCMR
654 ref.

(d) Constitution of Pakistan (1973)----

----Art. 199---Civil Procedure Code (V of 1908), O.I. Rr.1, 3 & 10--Constitutional


petition-- Interveners seeking relief for their impleadment on the ground that they had
purchased the flats in the building in question and in case they would not be impleaded,
their rights in the property could be affected---Principle laid down under O.I, Rr.1, 3 &
10, C.P.C. could be applied even in the Constitutional petition though the interveners
could not be termed to, be "person" within the meaning of Art.199(5) of the ,Constitution
---Said interveners could be made as a party to the Constitutional petition when their
rights in the property could be affected and their presence before the Court is considered
necessary to defend their rights---If the said submission was not allowed to prevail, it
would lead to multiplicity of proceedings and the finding given by the Court in the
absence of interveners would not be binding upon them---Provision of Civil Procedure
Code could be resorted to in the Constitutional jurisdiction except where they were
specifically excluded.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1;


Federation of Pakistan and others v. Aftab Ahmad Khan Sherpao and others PLD 1992
SC 723; Shabir Ahmad and another v. Akhtar Alam & others (PLD 1994 SC 598); Ch.
Pervez Ellahi v. Province of Punjab (PLD 1993 Lahore 595); Malik Khanan v. Malik Baz
Muhammad Khan and others PLD.1983 Quetta 30; Muhammad Nawaz and another v.
Abdul Ghafoor and others PLD 1981 Kar. 469 and Pakistan Engineering Council and
others v. Engineer I.A. Osmani and others 1991 SCMR 654 ref.

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

----Art. 185(3)---Petition for leave to appeal---Supreme Court always declined to


entertain such civil petitions wherein interlocutory order/fragmentary decisions are
challenged, unless a very strong case of exceptional nature was made out.

(f) Constitution of Pakistan (1973)-----

----Arts. 199 & 185(3)---Constitutional jurisdiction of High Court--Scope---High Court


rightly declined the interim relief of restraint order holding that no final finding could be
given on the pleas raised by the petitioner's in the interlocutory applications, till final
decision of main Constitutional petition---Petition for leave to appeal against said order
of the High Court was dismissed.

M. Naim-ur-Rahman, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-
Record for Petitioners.

Ch. Muhammad Akram, Advocate-on-Record and Shahid Jamil Khan, Additional


Controller (Legal) for Respondent No.1.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Mehr Khan Malik,
Advocate-on-Record for Respondent No.2.

Date of hearing: 16th September, 2003.

JUDGMENT

HAMID ALI MIRZA, J.---This civil petition for leave to appeal under Article 185(3) of
the Constitution of the Islamic Republic of Pakistan, 1973 is directed against the order
dated 6-9-2001 in Constitution Petition No.D-179 of 2001 passed by learned Division
Bench of the Sindh High Court at Karachi, whereby Miscellaneous Applications Nos.974,
984 and 541 of 2001, when first two Miscellaneous Applications filed by seven persons
to be impleaded as respondents in the main Constitutional petition were allowed,
however Miscellaneous Application No.541 of 2001 filed by the petitioners seeking
restraint order against various respondents from raising further construction and

Page No. 2 of 5
transferring, selling etc. the property, was dismissed holding that no case for interim order
was made out.

2. Brief facts of the case are that the petitioners filed Constitution Petition No. 179 of
2001 against thirteen, respondents praying therein the relief as follows:

"(a) declare that the original and revised plans for the building on the plot, approved in
violation of the lease/land-grant conditions and, the Regulations, are null and void
ab initio,

(b) declare that construction on the plot effected in violation of the law, the
lease/land-grant conditions and the Regulations, and in contravention of the
approved (albeit illegal) plan is illegal and liable to be demolished,

(c) direct the respondents Nos.1 and 2 to demolish the building so raised with the
assistance of respondents Nos.3 and 4, as the aforesaid construction has been
effected in violation of the law,

(d) restrain the builders, respondent No.10, from raising any further construction on
the plot or parting with physical possession of the construction already raised or
creating any third party interest therein,

(e) restrain the KBCA, respondent No.1, from issuing any revised/regularization
approved plans, "NOC for Sale" or "Occupancy Certificate" in respect of the
building raised in violation of the regulations and of the approved plan,

(f) restrain the Commissioner respondent No.3, and his District Registrar from
registering any conveyance in respect of any part of the property without a proper
"Occupancy Certificate' from the respondent No. 1,

(g) restrain the utility companies, respondents Nos.6 to 9, from giving any electric,
gas, telephone or water supply connections in respect of the building on the plot,
without a proper "Occupancy Certificate" from the respondent No. 1,

(h) direct the BOR and KMC, respondents Nos. 3 and 5 to forfeit/cancel the lease of
the plot for violation' of the building regulations and lease/land-grant conditions,

(i) direct the respondents Nos.1 and 2 to institute multiple criminal prosecution
proceedings against the builders, colluding politicians/ministers and
Government/KBCA officials, including respondents Nos.10, 11, 12 and 13, for
corruption, fraud and causing public danger, and for contravening the Regulations
and the Ordinance."

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

4. Main contention of the learned counsel for petitioners is that the learned Division
Bench while deciding applications under Order I, rule 10, C.P.C erred in law in allowing
the same whereby the said interveners were impleaded as respondents in the petition
when on one hand it was held in the judgment that the provisions of C.P.C. would not be
applicable in the Constitution petitions and on the other hand, the Court allowed the said
interveners to be impleaded as respondents as the said respondents/interveners could not
be said to be aggrieved persons within the meaning of Article 199 of the Constitution. He
further contended that the learned Division Bench also erred in law in holding that
provisions of Order XXXIX, rules 1 and 2, C.P.C would not be applicable to the
Constitution petition filed under Article 199 of the Constitution of the Islamic Republic
of Pakistan and further that no case for interim restraint order was made out.

5. We do find merit in the contention that provisions of Civil Procedure Code would
regulate proceedings and would not necessarily depend on the nature of jurisdiction of
the Court. Admittedly the Constitution petition has been filed under Article 199 wherein
some assertions for enforcement of civil rights have been made therefore same would be
civil proceedings hence provisions of C.P.C. would be applicable other than specifically

Page No. 3 of 5
barred as such the said provision would apply in the exercise of High Court's jurisdiction
in civil matters whatever may be nature of that jurisdiction. Reference may be made to
leading judgment of this Court in (I) Hussain Bakhsh v. Settlement Commissioner,
Rawalpindi and others (PLD 1970 SC 1) wherein their lordships observed:--

“The civil Procedure Code regulates civil proceedings. The nature of the
proceedings does not necessarily depend on the nature of the jurisdiction of the
Court invoked. In order to determine whether a proceeding is a civil proceedings
or not, it is necessary to see what are the questions raised and decided in the
proceeding involves the assertion or enforcement of a civil right, it is a civil
proceedings. As regards application of the provisions of the Code in proceedings
before a High Court, their lordships of the Privy Council in Sabitri Thakurari v.
Savi (AIR 1921 PC 80) observed:

"The Code is framed on the scheme of providing generally for the mode in which
the High, Court is to exercise its jurisdiction, whatever it may be, while
specifically excepting the powers relating to the exercise of original civil.
jurisdiction, to which the Code is not to apply."

2. Federation of Pakistan and others v. Aftab Ahmad Khan Sherpao and others (PLD 1992
SC 723) wherein this Court held as under:--

"A civil proceeding in a Court of civil jurisdiction is governed by the Code of


Civil Procedure. By virtue of section 117 of the Code a civil proceeding in a High
Court is also governed by the provisions of the Code other than the provisions
which are specifically excepted. A proceeding under Article 98 of the Constitution
concerning a civil matter being a civil proceeding relating to the High Court's
original civil jurisdiction and section 114 of the Code conferring power to review
not having been made inapplicable to the High Court in the exercise of its original
civil jurisdiction, the power to review an order made by the High Court in its writ
jurisdiction will be available to it under said section 114 if that section is
otherwise applicable."

(3) Shabir Ahmad and another v. Akhtar Alam and others (PLD 1994 SC 598), (4),
Ch.Pervez Ellahi v. Province of Punjab (PLD 1993 Lahore 595), (5) Malik Khanan v.
Malik Baz Muhammad Khan and others (PLD 1983 Quetta 30) and (6) Muhammad
Nawaz and another v. Abdul Ghafoor and others (PLD 1981 Kar. 469). It is regrettable
that High Court did not take notice of above three cases decided by this Court keeping in
view also the provision of Article 189 of the Constitution of the Islamic Republic of
Pakistan, 1973.

6. It is true that sub-clause (b) of clause (3) of Article 199 of the Constitution do provide
making of interim orders under the Constitutional jurisdiction of High Court, so also
Civil Procedure Code has also provided provisions of rules 1 and 2 of Order XXXIX but
none of the provision either in the Constitution or in the Code of Civil Procedure has laid
down conditions or ingredients to be considered while determining the question of grant,
or refusal of interim relief. In the circumstances even if interim relief is granted under the
Constitutional jurisdiction, time tested considerations for grant or refusal of relief the
Code of Civil Procedure viz. existence of prima facie case (ii) irreparable damage or
injury to be caused, and (iii) inconvenience have been determining factors for deciding
interlocutory petitions in the Constitutional jurisdiction, The above-cited constitutional
provision is to be read with the provisions contained in C.P.C. for grant or refusal of
interim relief as there being no bar or prohibition in their application under the
Constitution, considering also that Constitutional jurisdiction being paramount and every
form of limitation which normally would fetter the exercise would not prevent/control the
superior Court from exercising such powers when it would appear to be expedient in the
interest of justice.

7. Be that as it may, in the matter of entertainment of the petitions and grant of relief in
equitable and discretionary jurisdiction, it would not be necessary to follow in entirety the
technicalities of the law but also by the substance of the controversy when the
proceedings would appear not tainted with mala fides of the fact. Reference may be made

Page No. 4 of 5
to Pakistan Engineering Council and others v. Engineer I.A. Osmani and others (1991
SCMR 654) It may also be observed that the technicalities would not prevent the Court
from exercising its Constitutional jurisdiction and granting relief which otherwise
petitioner is entitled to it. In the instant case the respondents/interveners have sought their
relief for their impleadment on the ground that they have purchased the flats in the
building and pleaded that in case they would not be impleaded, their rights in the property
could be affected. In circumstances, the principle laid down under Order I, rules 1, 3 and
10 of the Code of Civil Procedure could be applied even in the Constitution petition
through the interveners could not be termed to be "person" within the meaning of Article
199 (5) of the Constitution. The said interveners can be made as a party to a Constitution
petition when their rights in the property could be affected and their presence before the
Court is considered necessary to defend their rights, if the said submission is not allowed
to prevail, it would lead to multiplicity of proceedings and the finding given by the Court
in the absence of interveners would not be binding upon them. It has been settled by this
Court in the above-cited cases that provision of C.P.C. could be resorted to in the
Constitutional jurisdiction except where they are specifically excluded. The learned
counsel for the respondent frankly conceded that provision of Code of Civil Procedure
would apply to the Constitutional jurisdiction of High Court unless the provisions are
specifically excluded. In the circumstances, we regret to say that learned Judges of the
High Court did not follow the law laid down by this Court with regard to application of
provisions of the Code of Civil. Procedure in the Constitutional jurisdiction of High
Court, consequently the contention of learned counsel for the petitioners has merit and
substance which is therefore upheld.

8. So far the refusal to grant interim relief to the petitioners by the High Court, it may be
observed that the High Court rightly held that in the circumstances of the case the
petitioners were not entitled equitable interim relief. Mr. Abdul Hafeez Pirzada learned
counsel for the respondents submitted that all the twenty floors of the building in question
were complete and completion certificates were issued in favour of respondents,
therefore, the petitioners were rightly denied the interim equitable relief though he
submitted that completion certificates were issued after the impugned order. It may also
be observed that this Court has always declined to entertain such civil petitions wherein
interlocutory order/fragmentary decisions are challenged, unless a very strong case of
exceptional nature is made out which in the present case was not made out. Respondent
K.B.C.A. has also filed additional document wherein approval was accorded by the then
Chief Minister for raising a commercial building on the plot in question and the Building
Plan was also approved. It has also been mentioned in the statement filed by respondent
K.B.C.A. that at present "Saima, Trade Tower Building" comprised of basement +
Ground + Mezzanine + 19 upper floors which existed at the site maintaining the cut line
to the extent of building only which building was found to be finished and occupied so
also completion certificate was approved and issued as per letter dated 12-11-2002.

9. In the circumstances the High Court rightly declined the interim relief of restraint order
against the respondents holding that no final finding can be given on the pleas raised by
the petitioners in the interlocutory applications, till final decision of main Constitutional
petition. We find no legal or factual infirmity in the said finding of the High Court,
therefore leave to appeal is declined and the petition is dismissed.

M.B.A./A-448/S Petition dismissed.

Page No. 5 of 5
2004 S C M R 948

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ

Haji SHAUKAT HUSSAIN and 4 others---Petitioners

Versus

Haji MUHAMMAD BAKHSH and 13 others---Respondents

Civil Petition No.2231-L of 1999, decided on 10th July, 2002

(On appeal from the order dated 26-10-1999 of the Lahore High Court, Multan Bench,
Multan passed in Civil Revision No.665 of 1998).

Civil Procedure Code (V of 1908)---

----O.I, R.10---Constitution of Pakistan (1973), Art. 185(3)---Transposing of


parties---Converting some of defendants as plaintiffs---Original plaintiff died during
pendency of suit and some of his legal heirs were arrayed as plaintiffs and the remaining
legal heirs were arrayed as defendants---Remaining legal heirs filed an application in
Trial Court to be transposed as plaintiffs---Trial Court allowed the application and the
remaining legal heirs were transposed as plaintiffs---Earlier plaintiffs assailed the order in
revisional jurisdiction of High Court which was dismissed in limine---Validity---Earlier
plaintiffs were kith and kin of the transposed plaintiffs---Trial Court, in order to avoid
further delay in disposal of the case, correctly ordered the transposition of all the legal
heirs of the deceased owner as plaintiffs, and the same had caused no prejudice to the
earlier plaintiffs---High Court had properly dealt the point urged by the earlier plaintiffs
and no legal infirmity or illegality had been shown in the judgment passed by High Court
warranting interference by Supreme Court under Art.185(3) of the Constitution--Leave to
appeal was refused.

Alamgir, Advocate Supreme Court with Mehmudul Islam, Advocate-on-Record for


Petitioners.

Nemo for Respondents.

Date of hearing: 10th July, 2002.

JUDGMENT

MIAN MUHAMMAD AJMAL, J.------The petitioners seek leave to appeal against the
judgment dated 26-10-1999 of the Lahore High Court, Multan Bench, Multan, whereby
Civil Revision No.665 of 1998 of the petitioners was dismissed in limine.

2. Resume of the case is that Haji Noor Muhammad the predecessor of the petitioners and
respondents Nos.7 to 14 had instituted a suit for possession through pre-emption against
respondents Nos. 1 to 6. During trial he died. Respondents Nos.7 to 14 allegedly declined
to join the petitioners, as such, the petitioners arrayed them as defendants Nos. 7 to 14.
Thereafter on 21-10-1998 respondents 10, 11, 13 and 14 filed an application for
transposing them as plaintiffs. The application was contested, however, respondents
Nos.1 to 6 made a statement that they had no objection to the acceptance of the
application. The learned Civil Judge accepted the said application and transposed
respondents Nos.7 to 14 as plaintiffs vide his order dated 26-10-1998. Feeling aggrieved,
the petitioners filed Civil Revision No.665 of 1998 which has been dismissed in limine
by a learned Judge in Chambers of the Lahore High Court, Multan Bench, Multan vide
his order dated 26-10-1999, impugned herein.

Page No. 1 of 2
3. Learned counsel for the petitioners has contended that respondents Nos.7, 8, 9 and 12
had not applied for their transposition as plaintiffs, therefore, they should have not been
transposed as plaintiffs.

4. We have heard the learned counsel for the petitioners and have perused the record of
the case with his assistance. Admittedly, respondents Nos.7 to 14 are the legal heirs of
late Haji Noor Muhammad like the petitioners but they were arrayed as defendants by the
petitioners in the amended plaint. Respondents Nos. 10, 11, 13 and 14 applied for their
transposition as defendants to which, contesting defendants Nos. 1 to 6 did not object, but
the petitioners who are kith and kin of defendants Nos. 10, 11, 13 and 14 objected to their
transposition as defendants. The trial Court in order to avoid further delay in the disposal
of the case correctly ordered the transposition of all the legal heirs of late Haji Noor
Muhammad as plaintiffs, which has not caused any prejudice to the petitioners. The point
urged by the petitioners has properly been dealt with by the learned Judge in Chambers of
the High Court. No legal infirmity or illegality has been shown in the impugned judgment
warranting interference by this Court under Article 185(3) of the Constitution of Islamic
Republic of Pakistan.

5. For the foregoing reasons, this petition is without any merits which is dismissed and
leave refused.

M.H./S-237/S Petition dismissed

Page No. 2 of 2
2003 S C M R 965

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

Dr. SALEEM JAVED and others---Appellants

Versus

Mst. FAUZIA NASIM and others---Respondents

Civil Appeal No. 433 of 1997, decided on 5th April, 2002.

(On appeal from the judgment of Peshawar High Court, Peshawar, dated 3-3-1996 passed
in Civil Revision No. 616 of 1994).

(a) Succession Act (XXXIX of 1925)----

----Ss. 212, 213 & 214---Constitution of, Pakistan (1973), Art. 185(3)--Contention of the
petitioner was that the respondent being a rank outside and not being a legal heir, she
could not be legally impleaded as party to the proceedings for grant of Succession
Certificate and that she could not claim the amount without establishment of her claim
before a competent Court of law---Leave to appeal was granted by Supreme Court to
consider, whether in circumstances, the High Court was justified-in interfering with the
order passed by the Senior Civil Judge, refusing to implead respondent as a party.

(b) Supreme Court Rues, 1980----

----O. IV, R.15---Proceedings before Supreme Court---Adjournment--Advocate-on-


Record---Duties, function and status---Advocate-on-Record is recognized agent of his
client and in absence of senior counsel, he is under duty to assist and address the Court on
behalf of his client--Absence of senior counsel is not a valid ground to postpone the
hearing of appeal before Supreme Court:

(c) Succession Act (XXXIX of 1925)---

----Ss. 212, 213 & 214---Succession Certificate, grant of ---Proceedings- -Locus standi---
Charge on the property of deceased ---Determination--Respondent claimed to have
charge on the property of deceased by way of giving the amount to the deceased- for
beneficial investment and safe custody---Trial Court declined to implead the respondent
as party to the proceedings while the High Court in exercise of revisional jurisdiction
allowed the revision and the respondent was impleaded as party to the proceedings---Plea
raised by the appellants was that the amount given by the respondent to the deceased was
not a charge on the property of the deceased hence she could not be impleaded as party to
the proceedings under Ss.212, 213 & 214 of Succession Act, 1925---Validity--
Respondent being not a legal heir of the deceased and also no Court had given any
verdict in favour of the respondent's claim as a charge on the property of the deceased,
therefore the provisions of Succession Act, 1925, would not .be helpful to the respondent
to establish her claim to become a necessary party in the application for the grant of
Succession Certificate to the appellants---Claim of the respondent without proper
determination by the competent forum would ipso facto not a charge on the property of
the deceased, therefore, the respondent neither had a locus standi to be impleaded as
necessary party in the proceedings under Successions Act, 1925, nor could contest and
oppose the grant of Succession Certificate to the legal heirs of the deceased---Court
seized of the matter relating to the issue of Succession Certificate could not adjudicate the
claim of the third person against the deceased for the satisfaction of such claim from his
property---Respondent being stranger in the proceedings for grant of Succession
Certificate to the legal heirs of the deceased would have no locus standi to be impleaded
as party and allowed to join the proceedings---Order passed by High Court did not
represent the correct legal position and the same was set aside by Supreme Court and the
order passed by Trial Court was restored.

Page No. 1 of 4
(d) Succession Act (XXXIX of 1925)---

----Ss. 212, 213 & 214---Legal heir---Liabilities and entitlement--Charge. on property of


deceased---Determination---Person who is entitled to inherit the property of another
person is also responsible for his liabilities but such liabilities must be, recognized as
charge on the property in law---Claim which is either admitted by the legal heirs of the
deceased person or is recognized in law and is not subject to further determination, would
be deemed to be the charge on the property of deceased---Claim which is subject to the
property of determination by the appropriate forum, cannot be treated as charge on the
property of deceased and his liability.

(e) Succession Act (XXXIX of 1925)-----

----Ss. 212, 213 & 214---Proceedings under Succession Act, 1925--Object and scope---
Such proceedings are limited in nature to the extent of determination of the rights of legal
heirs of deceased inter se and the scope of such proceedings cannot be enlarged to the
settlement of the disputed claim and determination of liabilities of legal heirs of the
deceased through the adjudication by the competent Court.

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

----O. I, R.10---Necessary party---Connotation---If in absence of a person no effective


decree or order can be passed in the suit such person is a necessary party and the suit
cannot proceed in his absence-- Requirement of addition of a party in the suit would be
essential if in absence of such party the adjudication of the dispute is not possible--Legal
heirs in a civil suit to recover the amount of debt due are necessary party but a stranger in
such a suit is neither a necessary nor a proper party---If a dispute in a suit can effectively
be adjudicated in absence of a person, such person is not a necessary party to be
impleaded in the suit.

Qazi Muhammad Jamil, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-
Record for Appellants.

M.S. Khattak, Advocate-on-Record for Respondents Nos. 1 to 3.

Respondents Nos. 4.to 12: Ex parte.

Date of hearing: 5th April, 2002.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave of the Court has, been
preferred against the judgment, dated 3-3-1996 passed by the learned Chief Justice of
Peshawar High Court, Peshawar, in a civil revision arising out of a succession matter.

Leave was granted in the present appeal vide order, dated 4-4-1997 which is reproduced
hereunder:---

“4. Learned counsel for the petitioner contended that respondent No. 1 being a rank
outsider and not being a legal heir, she could not be legally impleaded as party to
the proceedings for grant of succession certificate, and that she could not claim
the amount without establishment of her claim before a competent Court of law.

We have heard the learned counsel for the petitioner. The contentions raised by
the learned counsel prima facie appear to be substantial. We accordingly grant
leave to consider whether in the circumstances the learned High Court was
justified interfering with the order passed by the learned Senior Civil Judge,
refusing to implead respondent No.1 as party. Since a very short point is involved,
office is directed to fix this case at an early date."

Page No. 2 of 4
The appellants being legal heirs of Dr. Fazal Rahim upon his death, filed an application
for grant of succession certificate of his legacy and pending disposal of the said
application, Mst. Fauzia Nasim respondent No.1 herein, moved a miscellaneous
application to be impleaded as a party in the application for grant of succession certificate
raising charge of rupees thirty lass on the property of late Dr. Fazal Rahim. According to
Mst. Fauzia Nasim, she gave the amount in question to the deceased for the beneficial
investment and safe custody and that she had a valuable claim in the property of the
deceased to be satisfied and thus was a necessary party to the proceedings under
Succession Act, 1925. This application was dismissed by the learned Senior Civil Judge,
Peshawar, vide order, dated 13-7-1994. The respondent No.1 being aggrieved of the
above said order challenged the same by way of filing a revision petition in the High
Court at Peshawar and the learned Acting Chief Justice of the High Court in the light of
provisions contained in sections 212, 213 and 214 of the Successions Act, 1925 took the
view that the amount in question allegedly given by respondent No. I would be deemed to
be a debt on the property of deceased subject-matter of the succession certificate and
consequently, allowed the revision petition with the following observations:--

"That claim of the present petitioner is that her husband was engaged in business
in the Middle East and used to send her money regularly but as the petitioner was
suffering from some serious ailment and was under the treatment of the deceased
Dr. Fazal Rahim, therefore, she entrusted a sum of rupees thirty lacs to the
deceased for safe custody and/or beneficial investment but before any settlement
of the said amount, the deceased expired on 13-7-1993. This claim of the
petitioner, it may be mentioned here with advantage, has been acknowledged by
the respondents 7 to 9 when they submitted their written statement to the
application filed by Dr. Hamida Rahim for the grant of succession certificate, in
the Court of Senior Civil Judge, Peshawar, therefore, in my view, if she, Mst.
Fauzia Nasim is made a party to the proceedings for the grant of the succession
certificate, it will be within the scope of the provisions of sections 212 to 214 of
the Succession Act, 1925. The real issue with regard to entitlement to inheritance
of deceased Dr. Fazal Rahim will be decided by the Civil Courts in accordance
with their provisions bf Muhammadan Law. As such, I hold that the order of
rejection of application of present petitioner by the trial Judge is nothing but the
result of non-reading and misreading of the material available on record and also
the relevant law.

The result of the above discussion is that the revision petition in hand must
succeed and I order accordingly. The impugned order of the lower Court is set
aside. Let the petitioner Mst. Fauzia Nasim be made a party to the proceedings for
the grant of succession certificate filed by Dr. Hamida Rahim and others and give
her an opportunity to establish her claim according to law."

Learned counsel for the appellants has contended that the provisions of sections 212, 213
and 214 of Succession Act, 1925 would not be attracted in the case in hand and the
learned Acting Chief Justice has wrongly come to the conclusion that the interest of
respondent No. 1 would be a charge on the property and she was a necessary party in the
proceedings for the grant of succession certificate.

Mr. M. S. Khattak, learned A. O. R. for respondent No. 1 states that the counsel who was
supposed to represent the said respondent in the present case has since been appointed as
Advocate-General, N.-W.F.P. and that he was not in a position to argue the case without
the instructions of the respondent No.1 or her counsel. Mr. Khattak further states that he
had also no instructions from respondent No.1 for the engagement of another counsel.
Under the Supreme Court Rules, 1980, Mr. Khattak, being the AOR of respondent is her
recognized agent and in absence of senior counsel, he is under legal duty to assist and
address the Court on behalf of his client, therefore, the absence of senior counsel is not a
valid ground to postpone the hearing of this appeal. Mr. M.S Khattak with reference to
the Succession Act, 1925 referred above, contended that the view of the matter taken by
the High Court was logical and not in conflict to the law, therefore, would not call for
interference of this Court. The learned counsel added that the appellants can raise all
possible objections to the claim of respondent No.1 before the Court seized of the matter.

Page No. 3 of 4
We having heard the learned counsel for the parties and examined the relevant provisions
of Succession Act, 1925, find that said provisions would not be helpful to respondent No.
1 to establish her claim to become a necessary party in the application for grant of
succession certificate to the appellants. Mst. Fauzia Nasim, the respondent herein
admittedly is not a legal heir of late Dr. Fazal Rahim and also no Court has given any
verdict in favour of her claim as a charge on the property of the predecessor-in-interest of
appellants and without satisfaction of, which the grant of succession certificate to the
appellants would be adverse to the interest of said respondent. There can be no exception
to the rule that the person who is entitled to inherit the property of another person is also
responsible for his liabilities but such liabilities must be recognized as charged on the
property, in law. The claim which is either admitted by the legal heirs of the deceased
person or is recognized in law is not subject to further determination, would be deemed to
be the charge on the property of deceased and the claim which is subject to the
determination by the appropriate forum, cannot be treated as charge on the property of the
deceased and his liability. According to the claim of respondent, she gave the amount in
question to the deceased for investment and unless it is established in law through proper
and independent proceedings, that this amount was a debt on the property of Dr. Fazal
Rahim, since deceased, the mere raising the claim of debt payable by the deceased would
not be enough. The claim of the respondent No. 1 against the deceased without proper
determination by the competent forum, would ipso facto not a charge on the property of
deceased and therefore, the said respondent neither has a locus standi to be impleaded as
necessary party in the proceedings under Succession Act, 1925 nor could contest and
oppose the grant of succession certificate to the legal heirs of deceased under Succession
Act, 1925. It is not within the domain of the Court seized of the matter relating to the
issue of succession certificate to adjudicate the claim of a third person against the
deceased for the satisfaction of such claim from his property. It is noticeable that the
respondent in the present case while setting up claim against the predecessor-in-interest
of appellants, without any legal proof in her possession claimed her interest in the
property of the deceased. The proceedings under Succession Act, 1925 would be limited
in nature to the extent of determination of the rights of legal heirs of the deceased inter se
and the scope of such proceedings cannot be enlarged to the settlement of the disputed
claim and the determination of liabilities of legal heirs of the deceased through the
adjudication by the competent Court.

There is no cavil to the legal proposition that if in absence of a person no effective decree
or an order can be passed in the suit such person is a necessary party and the suit cannot
proceed in his absence and thus the requirement of addition of a party in the suit would
be essential if in absence of such party the adjudication of the dispute is not possible: The
legal heirs of the deceased in a civil suit to recover the amount of debt due are necessary
party but a stranger in such a suit is neither a necessary nor proper party. In nutshell we
may point out that if a dispute in a suit can effectively be adjudicated in absence of a
person, such person is not a necessary party to be impleaded in the suit. The respondent
No.1 in the present case being a stranger in the proceedings for grant of succession
certificate to the legal heirs of Dr. Rahim would have no locus standi to be impleaded as
party and allowed to join the proceedings, therefore, there could be no exception to the
order passed by the learned Senior Civil Judge Peshawar.

For the foregoing reasons, we are of the considered view that in the given facts, the
respondent was neither a proper nor necessary party to be impleaded in the application of
the appellants for grant of succession certificate and the judgment of the High Court
would not represent the correct legal position. Consequently, we while setting aside the
judgment of the High Court, restore the order passed by Senior. Civil Judge, Peshawar
and allow this appeal. There will be no-order as to costs.

M.H./S-203/S Appeal allowed.

Page No. 4 of 4
P L D 2002 Supreme Court 615

Present: Rana Bhagwandas and Javed Iqbal, JJ

GHULAM AHMAD CHAUDHRY---Petitioner

versus

AKBAR HUSSAIN through Legal Heirs and another---Respondents

Civil Petition for Leave to Appeal No.2391 of 2001, decided on 18th April, 2002._

(On apppeal from judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi dated
7-6-2001 passed in R.F.A. No.27 of 1987).

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

----O. I, R.10(2)---Adding of parties ---Jurisdiciton of Court---Wide judicial discretion is


vested in the Court to add parties at any stage of the suit in whose absence no effective
decree can be passed.

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

----O. I, R.9---Misjoinder and non joinder of parties---Effect---Where a necessary party is


not impleaded, the decree may not be binding on party.

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

----O. I, R.10---Necessary party and proper party---Scope---Person against whom no


relief is asked for, tray not be a necessary party but he may be a proper party.

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

----O. I, R.10 & S.96---Adding of necessary or proper parties---Appellate jurisdiction of


High Court under S.96, C.P.C.---Scope---Once suit has been instituted, parties can be
added only with the leave of the Court and not otherwise---Power of adding parties is not
a question of initial jurisdiction but of judicial discretion, which has to be exercised
having regard to all the facts and circumstances of the case---High Court seized with
appeal, arising out of the suit, is fully competent to add or strike out name of any person
to the suit for a just, fair and effectual adjudication of the controversy,

(e) Civil Procedure Code (V of 1908)

----O. XLI, R.27 & S.96---Additional evidence, recording of ---Jurisdiction of High Court
in appeal---Filing of application for recording of additional evidence---Requirement---
High Court was fully competent under O.XLI, R.27, C.P.C. to direct additional evidence
for a just and proper determination of the issue even without application by the parties---
Power to allow additional evidence was always discretionary in nature and the exercise of
discretion would depend on the facts of each case and as a general rule parties to a lis
were not entitled to produce additional evidence but if the Appellate Court required any
documents to be produced or any witness to be examined to pronounce judgment or for
any other substantial cause, it could always do so after recording reason.

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

----O. I, R.10 & O.XLI & Rr.23, 27---Constitution of Pakistan (1973), Art. 185(3)---
Impleading of necessary party---Additional evidence, recording of---Remand of case to
Trial Court for decision afresh---Jurisdiction of High Court in exercise of appellate
jurisdiction---Plaintiff asserted to be the owner of the suit property and in his absence the
property was transferred in the name of the vendor claiming to be the son of the plaintiff-
defendant purchased the property from the vendor and the same was transferred in the
name of the defendant---Plaintiff denied the vendor as his son and filed suit for

Page No. 1 of 5
cancellation of document and recovery of possession---Vendor was neither impleaded in
the suit nor his statement was recorded as witness--Trial Court dismissed the suit but
High Court in exercise of appellate jurisdiction allowed the appeal, impleaded the vendor
as a party and remanded the case to the Trial Court and suo motu directed the Trial Court
to record additional evidence---Contention of the defendant was that the High Court
should have decided the appeal on the basis of evidence available on record---Validity---
Judicial discretion exercised by the High Court as Appellate Court, in the present case,
was neither unwarranted nor unjustified when valuable proprietary rights of the plaintiff
(who was out of country for a long period) were extinguished without his consent and
permission, it was a fit case for exercise of suo motu jurisdiction by the High Court---
High Court by remanding the suit did not act arbitrarily or without jurisdiction-- Supreme
Court repelled the contention of the defendant and declined to set aside judgment and
remand of case for decision afresh---Appeal was disposed of accordingly.

Fazal Jan v. Roshan Dim PLD 1992. SC 811; Evacuee Trust Property Board v.
Muhammad Siddique 1995 SCMR 1748 and Zar Wali Shah v. Yousaf Ali Shah 1992
SCMR 1778 ref.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan,
Advocate-on-Record for Petitioner.

Mushtaq Ahmad Khan and Abdur Rehman Lodhi, Advocates Supreme Court and M.A.
Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 18th April, 2002.

JUDGMENT

RANA BHAGWANDAS, J.--Short question for consideration in this petition, arising out
of. Lahore High Court, Rawalpindi Bench, Rawalpindi judgment dated 7-6-2001, s
whether learned Members of the Division Bench in the High Court were justified
insetting aside the judgment and decree and remanding the case to the trial Court for
decision afresh after allowing the plaintiff to implead Tassadaq Hussain (vendor) as one
of the defendants and also to provide an opportunity to the parties to adduce evidence.

2. Succinctly stated facts leading to this petition appear to be that Plot No.13, Street
No.32, Shalimar (Old No.26, Sector F-6/1), Islamabad measuring 488.8 sq. yards was
transferred to one A.H. Shah on 31-5-1995 C.D.A. respondent/plaintiff-Akbar Hussain
purchased the plot from the original owner and after obtaining approval of a building plan
constructed a house on the plot in the year 1973. This house was let out on rental of
Rs.1,800 per month to the then Republic of Yougoslavia. On vacation by the said
Embassy, the property was rented out by nephew of the plaintiff to the Embassy of the
Iraq on 6-7-1977 on a monthly rental of Rs.2,000. Plaintiff received one years advance
rent and proceeded to London while his nephew Muhammad Banaras left for libya. On
return to Pakistan in September, 1978, Muhammad Banaras noticed that the property in
question was in possession of petitioner instead of Embassy of Iraq. He accordingly
informed respondent through telegram, who rushed back to Pakistan. On inquiry from the
Estate Office of C.D.A. he learnt that the property was transferred by C.D.A. in the name
of Tassadaq Hussain, who had transferred the same in favour of the petitioner. It was
revealed that Tassadaq Hussain was recorded as son of the plaintiff/respondent with the
C.D.A. although he had no son by the name of Tassadaq Hussain. Respondent
accordingly filed a suit for cancellation of documents, possession and recovery of
compensation at the rate of Rs.2,000 per month against the petitioner as well as C.D.A.

3. The suit was hotly contested giving rise to the following issues:--

"(1) Is the suit incompetent in its present form? OPD

(2) Is the suit time-barred? OPD

(3) Whether the suit is barred under section 4g-E of the C.D.A. Ordinance
read with Specific Relief Act? OPD

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(4) Whether the suit property had been transferred by the plaintiff to his son
Tassadaq Hussain? OPD

(5) If the above issue is not proved, whether the plaintiff is entitled to the
decree for cancellation of documents pertaining to the suit property on the
grounds detailed in the plaint? OPP

(6) Whether the plaintiff ,is entitled to the mesne profits, if so, at what rate
and since when? OPP '

(6-A) Whether the impugned sale in favour of defendant No.l, is protected as he is


bona fide purchaser for consideration and without notice?

Relief."

4.Both the parties adduced evidence. On analysis of evidence, learned Senior Civil Judge,
Islamabad dismissed, the suit with costs. Judgment and decree was challenged in R.F.A.
before the Lahore High Court resulting in its annulment and remand of the suit to the trial
Court for decision afresh with the aforesaid directions.

5. Mr. Muhammad Munir Peracha, learned Advocate Supreme Court represented the
petitioner whereas Messrs Mushtaq Ahamd Khan and Abdur Rehman Lodhi, learned
Advocates Supreme Court appeared on behalf of respondent No. 1.

6. When this petition came up for hearing, learned counsel for the respondent stated at the
Bar that pursuant to the impugned judgment, Tassadaq Hussain was impleaded as co-
defendant in the suit and summoned by the Court but he did not turn up with the result
that the trial Court has passed an order to proceed ex parte against him. Mr. Peracha did
not controvert this statement and proceeded to assail the impugned judgment on the
premises that there was no factual or legal justification on the part of the High Court to
remand the suit for none of the parties had prayed for impleadment of Tassadaq Hussain
as co-defendant or for additional evidence by the parties. According to the learned
counsel learned High Court ought to have decided the appeal on revaluation of evidence
on its own merits as this was neither a case of suit failing on account of non-joinder of
Tassadaq Hussain nor insufficiency of evidence. He re-enforced his submission by
heavily relying upon the latest development of the suit in which Tassadaq Hussain has
been ordered to be proceeded ex parte.

7. Conversely, learned counsel for the contesting respondent urged that in terms of
Order XLI, rule 27, C.P.C. High Court felt it necessary to have the benefit of the view-
point of Tassadaq Hussain, who had purportedly .. transferred the property in favour of
the petitioner, which was duly mutated in the records of the C.D.A. Notwithstanding the
fact that Tassadaq Hussain has not opted to appear before the trial Court, learned counsel
stated at the Bar that respondent No. l would endeavour to secure the presence of the said
vendor and examine him as a witness in addition to additional evidence as permitted by
the High Court. Learned counsel supported the impugned judgment on the premises that
the High Court in its wisdom considered the evidence of the parties inadequate for a just
and effectual pronouncement on the controversy within the contemplation of Order 1,
rule 10, C.P.C.

8. A wide judicial discretion is vested in the Court to add parties at any stage of the
suit in whose absence no effective decree can be passed. It may be observed that where a
necessary party is not impleaded, the decree may be not be binding on it. Likewise, a
person against whom no relief is asked for, may not be a necessary party but he may be a
proper party. For the purpose of addition of parties, the Court is governed by provisions
of Order I, C Rules 1 and 2 and Order II, rule 3, C.P.C. In law a Court is empowered to
bring on record only necessary or proper parties. Once a suit has been instituted, parties
can be added only with the leave of the Court and not otherwise. Power of adding parties
is not a question of initial jurisdiction but of judicial discretion, which has to be exercised
having regard to all the facts and circumstances of the case. In the instant case, learned
High Court seized with the appeal, arising out of the suit, was fully competent to add or

Page No. 3 of 5
strikeout name of any person to the suit for a just, fair and effectual adjudication of the
controversy. It is true that the High Court has not assigned in-depth reasons for
impleadment of the vendor, who transferred the property in favour of the petitioner, the
fact remains that the High Court was fully conscious of its judicial discretion and
necessity of having the stance of the vendor after the controversy raised by the
respondent with regard to his authority to dispose of the property in suit. Likewise, under
the provisions of Order XLI, rule 27 High Court was fully competent to direct additional
evidence for a just and proper determination of the issues even without the application by
the parties. Power to allow additional evidence is always F discretionary in nature and the
exercise of discretion would depend on the facts of each case. No doubt as a general rule
parties to a lis are not entitled to produce additional evidence but if the Appellate Court
requires any document to be produced or any witness to be examined to pronounce
judgment or for any other substantial cause, it can always do so after recording reasons.
No doubt learned High Court has not expressed in so many words that evidence of
Tassadaq Hussian or for that matter additional evidence by the parties required for a just
decision of the appeal, the very circumstance that the Court passed such orders, would
presuppose that presence of the vendor before the Court was found quite necessary and
since the case was being remanded for this purpose, parties to the lis are generally
allowed an opportunity of adducing further evidence, if so desired. In fact learned High
Court has observed that Tassadaq Hussain alleged son of Akbar Hussain-plaintiff was not
impleaded as defendant nor he was summoned by either of the party as a witness. In the
opinion of the Bench, he was the most relevant party and a witness, therefore, the
impugned judgment was set aside. This observation of the High Court, on the face of the
record, is obviously consequential upon the discussion of the evidence and finding on
Issues Nos.4 and 6-A by the trial Court in which both the issues and the evidence of the
parties have been jumbled-up. In this connection, it may not be out of place to refer the
observations of this Court in Fazal Jan v. Roshan Din (PLD,1992 SC 811), which read as
under:--

"After hearing the petitioner, at some length, she tried to show her connection
through her father directly with Fazal Din. He, it seems was the occupancy tenant.
We summoned the record also but it is clear from its examination that the case
was badly conducted not only from the petitioner's side but also from the
respondent side All the relevant documents were not brought on record. The trial
Court was not denuded of power to summon all the necessary Revenue Record
and also to summon the Patwari so as to supply omissions from both sides. It was
also the duty of the two higher Appellate Courts. It seems that it was an
appropriate case for exercise of power under Order XLI, rule 27, C.P.C. for
bringing on record additional evidence. The suo motu exercise of this power
would also have been fully justified in the facts and circumstances of the case.
This is demonstrated by the fact that petitioner examined two witnesses besides
herself to support her claim regarding her possession of the suit land agreement
Exh.P.2 was also placed on record showing that she was in possession of the land
which was with one Misri son of Zina Pathan on contract cultivation basis and
that he had similarly its possession under her father. P.W.3 Khairullah had
supported the petitioner but P.W.2 made a short statement saying that he had
earlier made a statement in favour of the petitioner and that he had nothing more
to say. As against this the evidence led from the respondent side is the, statement
of Mujahid Khan defendant who deposed that he had pre-empted the sale of this
land and had obtained pre-emption decree in that behalf. And for this reason only,
according to him, the petitioner/plaintiff had no connection with the land'."

9. After hearing learned counsel for the parties at quite some length and evaluating the
chequered history of the suit leading to this petition, we are of the considered view that
the judicial discretion exercised by the High Court as Appellate Court was neither
unwarranted nor unjustified in the circumstances. In the facts of the case when valuable
proprietary rights of the respondent (who was out of country for a long period) were
extinguished without his consent and permission, it was a fit case for exercise of suo
motu jurisdiction by the High Court. In any event, it cannot be said that by remanding the
suit, High Court acted arbitrarily or without jurisdiction. Submission that the High Court
should have decided the appeal on the basis of evidence available on the record, in our

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view is not weighty in order to persuade us to set aside the impugned judgment and
remand the case for decision afresh.

10. We may point out that even in a later case i.e. Evacuee Trust Property Board v.
Muhammad Siddique (1995 SCMR 1748), it was observed by this Court that the
Appellate Court having found that Evacuee Trust Board was an aggrieved party qua the
judgment and decree -of trial Court should have exercised power under Order I, rule 10,
C.P.C. and after setting aside the judgment and decree the case-should have been
remanded to the trial Court with the direction to implead the necessary party to the suit
and then proceed with the case in accordance with law.

11. Earlier in Zar Wali Shah v. Yousaf Ali Shah (1992 SCMR 1778), this Court
authoritatively laid down that concept of bar against filling the gaps was no more
available in the present Pakistan jurisprudence and the law; including, the precedent law,
on Islamic principals; which were being made applicable progressively to the
proceedings before the Courts and other forums which are required to record/admit
evidence.

12. In the circumstances of the case, we are of the view that it would be in the fitness of
things to convert this petition into appeal and dispose of the G same with the direction to
the trial Court, by, consent of the parties counsel, to dispose of the suit as quickly as
possible and preferably within a period of four months from the date of this judgment
under intimation to the Registrar of this Court. We order accordingly.

Q.M.H./M.A.K/G-105/S Order accordingly.

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