Case Law and Judgment (making an application under Ss. 148 & 149 in their earlier application before High Court for six months' time for payment of court‑fee‑‑High)

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

‑‑‑O. XXXIII read with Ss. 148 & 149‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Pauper suit‑‑Leave to appeal granted to consider question whether respondents were not entitled to continue the original application in forma pauperis since it had already been dismissed by High Court and appeal against same had finally been dismissed by Supreme Court as being barred by time.

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

‑‑‑O. XXXIII, R. 15 read with Ss. 148 & 149‑‑Pauper suit‑‑Application of respondent for permission to sue as a pauper having been refused by High Court, appeal before Supreme Court dismissed as barred by time‑‑Supreme Court on a separate application by respondent, however, ordered that if he chose to pursue matter further by making payment of court‑fee, he might do so by making an application under O. XXXIII, R. 15 and S. 148 before Trial Court‑‑Respondents thereafter making an application under Ss. 148 & 149 in their earlier application before High Court for six months' time for payment of court‑fee‑‑High Court granting such application, allowing three months' time and ordering that if court‑fee was paid by respondents within time, their application to sue in forma pauperis may be registered as a suit and further proceedings taken thereon‑‑Appellant submitting that High Court had not correctly understood the Supreme Court's order and seeking clarification thereof‑‑Held, Supreme Court did not intend by said order that the old matter which had been finally dealt with and dismissed both by High Court as well as Supreme Court, stood revived or re‑opened and that observations in said order were only meant to permit respondents to file a fresh suit on payment of proper court‑fee and that too subject to objections by other side regarding limitation‑ Appeal allowed and impugned order set aside.

Fatehali W. Vellani, Advocate Supreme Court and Yousaf Rafi, Advocate‑on‑Record for Appellants.

Syed Ismat Ali Shah, Advocate Supreme Court with A.A. Fazeel, Advocate Supreme Court Amicus Curiae for Respondents Nos.1 and 2.

Date of hearing: 11th February, 1987. 

ESSO EASTERN INC. VS ARK NAVIGATION COMPANY

1987 S C M R 2097

Present: Aslam Riaz Hussain, Nasim Hasan Shah, Abdul Kadir Sheikh and Javid Iqbal, JJ

ESSO EASTERN INS. and another‑‑Appellants

versus

ARK NAVIGATION COMPANY and others‑‑Respondents

Civil Appeal No. 131‑K of 1986, decided on 11/02/1987.

(Against the judgment of the High Court of Sind at Karachi, dated 24‑10‑1984, passed in C . M . A . No. 175 of 1983 in Judicial Miscellaneous Application No. 50 of 1975):

JUDGMENT

ASLAM RIAZ HUSSAIN, J.‑‑Facts giving rise to the present case are briefly that on 11‑4‑1975, the respondents filed an application under Order XXXIII of the CPC in the High Court of Sind at Karachi, for permission to sue the present appellants in forma pauperis, without payment of court fee. This application was registered as Judicial Misc No. 40/75. It was first heard by the Registrar of the High Court on the original side who refused permission vide his order dated 29‑8‑1977. A reference was then made to the learned Judge of the High Court for its disposal. The learned Judge agreed with the Registrar and turned down the application vide his order dated 5‑11‑1977. Then about 41 days after the expiry of the period of limitation, the respondents filed a petition for leave to appeal (CPSLA No. K‑61 of 1979) before this Court. Leave was granted to them conditionally by this Court on 1‑9‑1980 subject to objections by the other side on the question of limitation. The appeal so admitted was numbered as Civil Appeal No. 301/80. The said appeal was heard on 30 and 31 of January, 1983. It was dismissed as barred by time. But on a separate application filed by the respondents (CMP No. D‑46/83) it was ordered in continuation of the order dismissing Civil Appeal No. 301/1980 that:

"The petitioner if he chooses to pursue the matter further by making payment of the court fee, if so advised, may do so by making an application under Order XXXIII rule 15 and section 148 CPC before the learned trial court. The question of limitation in the suit will also be decided by the said court after considering all available pleas to be raised by either side."

It was also observed that:

"We, however, remark that this court has concluded the question of application for suing as a pauper without dismissing it on merits the petitioner has lost the appeal in this behalf, only on ground of limitation."

Thereafter, in February, 1983, the respondents filed an application (CMP No. 775/83) under Sections 148 and 149 CPC in their earlier application (JM No. 40/75), before the High Court praying for six months time for payment of the court fee. Notice was issued to the present appellant who opposed the said application. The High Court, however, granted the said application vide its order dated 24‑10‑1983 and allowed three months time to the respondents for payment of the court fee and further ordered that if the court fee is paid by the respondents within that time, their application to sue in forma pauperis may be registered as a suit and further proceedings taken thereupon.

2. The appellants thereupon filed a petition for leave to appeal and leave was granted to them on 4‑6‑1984.

It was argued by the appellants' counsel before the Bench hearing the petition that the respondents were not entitled to continue the original application (JM No. 40/75) in forma pauperis since it had already been dismissed by the High Court and the appeal against the same had finally been dismissed by this Court as being barred by time. Leave was granted to consider this question.

3. The matter came up for hearing before us today.

Learned counsel for the appellants read out the following portions of the impugned judgment:‑

"Where however the court rejects the pauper application or refuses leave to sue in forma pauperis absolutely without allowing any time to applicant to pay the court fee under section 149 CPC and no prayer oral or written is made to the court at the time of passing and signing of the order then the court cannot by a separate and subsequent order allow time to the applicant under section 149 CPC to pay the court fee on the application.

"It, therefore, necessarily follows that in order to enable the court to pass an order under section 149 CPC allowing time to an applicant whose application is either rejected or refused by the court to pay the deficit court fee on the application, it must be shown that the court has not lost seisin of the case at the time the prayer is made by the applicant for time to pay the court fee."

He then adverted our attention to the following portion of the impugned order of the High Court:‑

"It cannot be doubted that the effect of admission of appeal by the Supreme Court was that the Whole matter was reopened before it and a prayer having been made by the applicant before that court to pay the court fee, the same could be granted by the Court. The Supreme Court, however, instead of deciding the aforesaid prayer of the applicant itself directed this court to deal with the same."

4. Learned counsel for the appellants submitted that since after the dismissal of the respondents application to sue in forma pauperis (JM No. 40/75) by the High Court in which its final dismissal by this court no matter was, left pending before the High Court in which an application under sections 148 and 149 CPC could have been made nor accepted. He submitted that it appeared that out ofdeference for this Court the High Court had interpreted this Court's order in CMP No. K‑16/83, dated 30/31‑1‑1983, reproduced in paragraph No. 1 above, to mean that it constituted a direction or permission to reopen the entire matter.

Learned counsel for the appellants submitted that in view of its expressed reference by this Court to Order XXXIII Rule 15 of the CPC‑it is evident that the High Court had not correctly understood the order of this Court dated 30/31‑1‑1983. As such the counsel sought clarification of this Court's order dated 30/31‑1‑1983 and prayed that the impugned order of the High Court be set aside.

5. After going through the orders in question as also after hearing the respondents who are present in person as well as the appellants' counsel we are inclined to agree with the latter and clarify that it was not intended by this Court's order dated 30/31‑1‑1983 that the old matter (JM No.40/75) which had been finally dealt with and dismissed both by the High Court as well as this Court, stood revised or reopened. The observations in this Court's order dated 30/31‑1‑1983 were only meant to permit the respondents to file a fresh suit, on payment of proper Court fee and that too subject to the objections by the other side regarding limitation.

6. As a result of the above discussion we allow the appeal and' set aside the impugned order of the High Court, with the above clarification. No order as to costs.

S.Q./E‑4/SAppeal allowed.

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Case Law and Judgment (Documents, production of---Documents not in possession of appellant but.....)

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

---O.XI, Rr.14 & 16--Documents, production of---Documents not in possession of appellant but in possession of some other party- Provisions of O.XI, R.14, held, could not be extended to application for production of documents--Notice to produce such document to be given in Form 7, Appendix 'C' with such variations as circumstances may require as envisaged under O.XI, R.16--Bare application not competent.

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

---O.XI, Rr.14, 21 and O.VII, R.11--Documents, non-production of- Defendant not complying with directions of Court for production of document--Provisions of O.XI, R.21, applicable could be resorted to--Penal provisions of O.VII, R.11, held, not applicable.

(c) Civil Procedure Code (V of 1408)--

---O.XX, R.4--Judgment, recording of --Guidance for. Before recording an appealable judgment, the provisions of Order XX, Rule 4, C.P.C.should be borne in mind. The judgment should contain a concise statement of the case, the points for determi nation, the decision thereon and the reasons for such decision.

M.A. Farani for Appellant.

M.M. Bhatti for Respondents.

Date of hearing: 12th March, 1984.

 

UNITED BANK Ltd., KARACHI VS Malik RASHID AHMAD

1987 M L D 2399

[Lahore]

Before Khizar Hayat and Muhammad Sharif, JJ

UNITED BANK Ltd., KARACHI--Appellant

versus

Malik RASHID AHMAD and another--Respondents

Regular First Appeal No.59 of 1983/BWP, decided on 12/03/1984.

JUDGMENT

MUHAMMAD SHARIF, J.--The legality of the judgment and decree dated 26-5-1983 pronounced by the learned Civil Judge I-Class, Ahmadpur East has been questioned in this appeal who had rejected the plaint of the plaintiff-appellant against respondents Nos.1 and 6 only.

2. The relevant facts of this case in substance are that respondents Nos. l to 3 and 6 maintained their respective accounts with the appellant bank whereas respondents Nos.4 and 5 had opened their respective accounts with the United Bank Ltd., Beadon Road, Lahore and Sargodha Rood, Faisalabad respectively. Mr. Manzoor Ahmed Sahir; respondent No.7 was the Branch Manager of the appellant bank. Respondent No.7 on or about 24-5-1979 on the request of defendant No.1 issued two telegraphic transfer orders called the T.Ts. each for Rs.2, 77, 268/- in favour of respondents Nos. 4 and 5 without actually receiving the value thereof. Respondents No3.2 and 3 had issued the cheques mentioned in pare (6) of the plaint but they had not deposited the necessary amount in the bank. Qazi Abaidullah Advocate, respon dent No.6 had assured the payment by the execution of the necessary documents. It has been stated in the plaint that the said T.Ts. amounting to Rs.5,54,536/- were credited to the accounts of defendants No.4 and 5 their Manager, respondent No.7 had colluded with the other respondents in issuing the T. Ts. The appellant bank sought the assistance of the learned trial Court against the respondents for the recovery of Rs.5,54,536/-. Respondents Nos.2, 3 and 4 through separate applications applied that they may be supplied the copies of the T.Ts. and the questioned cheques so that they may be able to file a written statement. Respondent No. 6 also made a similar application calling upon the plaintiff-appellant to produce those documents in Court. Those documents were not produced and the learned trial Court by means of the impugned judgment and decree, rejected the plaint of the appellant bank in part against respondents Nos.1 and 6 only.

3. Order XI, Rule 14 may be reproduced for the facility of reference:-

It shall be lawful for the Court, at any time during the pendency of any suit, to order the' production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just. .

It has been provided in the aforementioned provision of law that a Court, at any time during-the pendency of any suit, can order the production by any party of the documents in his possession or power relating to any matter in question in a suit and it can deal with such documents when produced in a just manner. The production of the documents like T.Ts. and the cheques was sought which according to the appellant bank, were in possession of the Federal Investigation Agency in connection with a criminal case against Mr. Manzoor Ahmed Sahir, respondent No.7 who was a Branch Manager and was relieved of his duties as a sequel to a departmental action. These documents were not in possession or power of the appellant bank and the representation of the appellant bank that they were with the F.I. A., should have been considered by the learned trial Court. The provisions of Order XI, Rule 14, CPC cannot be extended to the application made by respondent No.6. It may also be noted that notice to produce document should be given in form No.7 Appendix 'C' with such variations as the circumstances may require as envisaged under Order XI, Rule 16, CPC. The bare application in this regard is not competent and it should have been on a prescribed form.

4. Furthermore, the penal clause under Order XI, Rule 21, if applicable, should have been resorted to and the provisions of Order VII, Rule 11, CPC have erroneously been exacted by the learned trial Court against the appellant bank. It has been stated in the impugned judgment that there was no cause of action against respon dents Nos.1 and 6 and on account of the non-compliance of the order of the Court, the plaint was rejected. Order VII, Rule -11, CPC reads as under:-----

The plaint shall be rejected in the following cases:----

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

(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law.

It has not been stated in the impugned judgment as to how the plaint does not disclose a cause of action against respondents Nos.1 and 6. Furthermore, there is no question of under-valuation or the insufficiency of stamp as regards the suit and the plaint and the plaint has been rejected against law. Furthermore, the respondents could not refer to any provision in the C.P.C., requiring a plaintiff to supply copies of documents for filing a written statement.

5. For the guidance of the learned trial Court, it may be added that before recording an appealable judgment, the provisions of Order XX, Rule 4, CPC should be borne in mind. The judgment should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. The learned trial Court has rejected the plaint against respondents Nos.1 and 6 against law and ,the judgment does not contain a concise statement of the case and the reasons of its decision.

6. It has been contended by the learned counsel for the respondents that the suit was not triable by the learned Civil Judge; as it was for the recovery of loan, it should have been instituted in the Court of the Special Judge, Banking who is having the exclusive jurisdiction to try the same. This point is left open for the parties to be adjudicated by the learned trial Court.

7. We, therefore, accept this appeal and set aside the impugned judgment and decree dated 26-5-1983. Due to the legal intricacies involved in this appeal, we make no order as to costs. The file may be sent to the learned Civil Judge for further proceedings according to law. The parties should appear before the learned trial Court on 10-4-1984.

M. A. K. /M-682/LAppeal accepted:

x

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Case Law and Judgment (Dismissal of suit for non-prosecution, CPC O.VII, R.11 & O.IX, R. 8)

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

--O.VII, R.11 & O.IX, R. 8--Constitution of Pakistan (1973), Art. 199--Dismissal of suit for non-prosecution--Case was fixed for hearing .application for rejection of plaint under O.VH, R.11, C.P.C. filed by at respondent and not for hearing main case--Suit, held, could not be dismissed for non-prosecution--Order of dismissal of suit declared as without lawful authority and case remanded for decision afresh from the stage it was dismissed.

Badrudduja Khan for Petitioners.

Muhammad Yousuf for Respondent No.2

Mirza Yaqoob Baig for Respondent No.3.

 NAZIR AHMAD SIDDIQUI VS DISTRICT JUDGE (WEST), KARACHI

1989 M L D 1873

[Karachi]

Before Ajmal Mian, C.J. and Abdul Rahim Kazi, J

NAZIR AHMAD SIDDIQUI and others---Petitioners

versus

DISTRICT JUDGE (WEST) KARACHI and others--Respondents

Constitutional Petition No. D-881 of 1988, decided on 17/10/2017.

ORDER

AJMAL MIAN, C.J: ----This petition is directed against the orders dated 23-9-1987 and 24-3-1988 passed by the learned District Judge, West Karachi, in Civil Revision No. 39 of 1987, whereby by the former order, the learned District Judge set aside the order dated 27-4-1987 passed by the learned Vth Senior Civil Judge, West Karachi, in Suit No. 4730 of 1982 upon an application under Order 9 Rule 9, CPC filed by the present petitioner and by the latter order, the learned District Judge dismissed the review petition against the above order dated 23-9-1987.

2. The brief facts leading to the filing of the above petition are that the petitioner filed aforesaid suit for declaration and injunction. It seems that the aforesaid suit was transferred from the lied Senior Civil Judge to the Vth Senior Civil Judge. On 25-10-1986, the case was fixed before the Vth Senior Civil Judge for returning the Court motion notice for the service on the plaintiff. The service on the plaintiff was held, good and thereafter the case was put off to 15-11-1986 for hearing of respondent No.2's application under Order 7 Rule 11 CPC for rejection of the plaint. The above case had come up for hearing before the learned Vth Senior Civil Judge on 15-11-1986 when the petitioner was not present and the learned Vth Senior Civil Judge dismissed the suit for non- prosecution. The petitioner filed an application under Order 9 Rule 9 CPC, which was allowed by the learned Senior Civil Judge by his order-dated 27-4-1987. Against the above order, respondent No. 2 filed aforesaid Civil Revision No. 39 of 1987, which was allowed by the order dated 23-9-1987 by the learned District Judge, West Karachi and the learned Senior Civil Judge's aforesaid order dated 27-4-1987 was set aside. Against the above order, the petitioner filed a review petition on the ground that the aforesaid order dated 23-9-1987 was passed without hearing the petitioner. However, the said review petition was dismissed by the impugned order dated 24-3-1988. The petitioner has filed the present petition.

3. A Division Bench of this Court had issued pre-admission notice to the respondents Nos. 2 and 3 in response whereof Mr. Muhammad Yousuf is present for respondent No. 2, whereas Mr. Mirza Yaqoob Baig for respondent No. 3.

4. We have heard the learned counsel for the parties and it appears, as pointed out here in above, that on 25-10-1986, the case was adjourned to 15-11-19&5 for hearing of respondent No. 2's application and not for the hearing of the main case. In this view of the matter, the learned Senior Civil Judge could not have dismissed the suit for non-prosecution on 15-11-1986 but could have proceeded with the above application of respondent. No. 2 and could have allow the same by rejecting the plaint even in the absence of the petitioner if he was absent without any justifiable reason. This was not done. In this view of the matter, it is evident that the order of the dismissal of the suit was without lawful authority.

5. We would, therefore, allow the above petition and declare the two orders of the learned District Judge, West Karachi restoring the above order dated 15-11-1986 passed by the learned Vth Senior Civil Judge, dismissing the suit for non-prosecution as being without lawful authority. The parties will appear before the learned Vth Senior Civil Judge on 24-10-1988 without any notice from the Court and the learned Senior Civil Judge will hear the respondent No. 2's aforesaid application under Order 7 Rule 11 CPC and would decide the same without any further delay. If the petitioner does not appear on the above date, the learned Senior Civil Judge will be free to proceed with the above application.

6. The petition stands disposed of in the above terms with no order as to cost.

M.Y.H./N-162/K

Petition allowed.

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Case Law and Judgment (Suit by oral gift to his daughter‑in‑law, Transfer of Property Act (IV of 1882))

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

‑‑‑ S. 52‑‑Civil Procedure Code (V of 1908), 0. XXII, R.10‑‑Gift‑ Transfer of property during pendency of suit ‑‑ Defendant petitioner gifting property in suit by oral gift to his daughter‑in‑law and bringing an application under 0. XXII, R. 10, C.P.C., for bringing her on record‑‑ Application was dismissed by Court below on ground that property shown in application under O.XXII, R. 10, C.P.C. and gifted by defendant included property which was subject‑matter of suit and since no permission was obtained from trial Court, gift was in violation of S.52 of Transfer of Property Act ‑‑ Held, under provision of S.52 of Act, transfer of immovable property in suit to which any right was directly and specifically claimed therein was not completely prohibited‑ ‑What was contemplated by said provision was that property could not be transferred or otherwise dealt with without permission of Court by any party to suit or proceedings so as to affect rights of any other party thereto under any decree or order which might be passed therein ‑‑ Subject to these reservations, property could be transferred even without permission of Court but transferee / donee acquired right thereto or interest therein only subject to judgment or order of Court in suit ‑‑ Order of Court below set aside and donee ordered to be brought on record and suit to be proceeded according to law.

(b) Transfer of Property Act (IV of 1882)‑‑

‑‑‑ S. 52‑‑Doctrine of lis pendens as incorporated in S.52 of Act explained.

Bellamy v. Sabine 44 Eng. Rep. (F.R.) (Ch.) 842 & 847 and Faiyaz. Husain Khan v. Munshi ‑Prag Narain and others 34 1 A 102 rel.

Mrs. Rashid Patel for Applicants. S.S. Akbar for Respondents.

Date of hearing: 23rd November, 1987.

 ZOHRA BAI VS A. A. ZUBERI

P L D 1988 Karachi 58

Before Naimuddin, CJ

Mst. ZOHRA BAI and another‑‑ Applicants

versus

A.A. ZUBERI and 3 others ‑‑ Respondents

Civil Revision No. 360 of 1986, decided on 23/11/1987.

JUDGMENT

This revision application under Section 115, CPC is from the order of IV Additional District Judge, Karachi (South) dated 17‑7‑1986, passed in Civil Misc. Appeal No.11 of 1985, whereby he dismissed the appeal filed by the applicants from the order dated 9‑12‑1984 passed by the Ist Senior Civil Judge, Karachi, dismissing the application of one Dr. Ali Muhammad Nagori under Order XXII, Rule 10, CPC, which was filed in ‑'Suit No.1263/80, in the following circumstances.

2.The respondents filed a suit against Dr. Ali Muhammad Nagori for declaration claiming that the property No.VIT‑E‑98‑113, Sol B‑2/11]2. George Street, Karachi, in occupation of Irsha(f Khan tenant of the property‑ is their exclusive property and is owned by them and that, the defendant has no right o" interest in the property and that the said property does not form part of tenement No. G‑3 owned by the said Dr. Ali Muhammad Nagori. The respondents also prayed for a permanent injunction against the defendant or any person claiming under him restraining him from denying their title or disturbing U1 interfering with their possession, right, title to or interest in the suit property.

3. During the pendency of the suit, as stated at the Bar, Dr. Ali Muhammad Nagori gifted the property to his daughter‑in‑law, namely, Mst. Mehrunnisa Nagori by an oral gift. Thereafter, he made an application under Order XXII, rule 10, CPC to the trial Court for bringing the said Mehrunnisa the donee on record.

4. The trial Court, by order dated 9‑12‑1984, dismissed the application for the reason that the respondents have filed the suit against the predecessor of applicants for declaration and injunction and the property in possession of the respondents does not bear Number G‑3 but bears Number 1/3rd and as such the application of the said Dr. Ali Muhammad Nagori under Order XXII, rule 10, CPC was not maintainable.

5. Aggrieved by the order, Dr. Nagori filed and appeal before the Additional District Judge, in which the order impugned in this revision application was passed dismissing the appeal as stated before, The reasons, which weighed with the learned Additional District judge in dismissing the appeal were that the property shown in the application under Order XXII, rule 10, CPC, was gifted by Dr. Ali Muhammad Nagori to Mst. Mehrunnisa Nagori included the property, which was: the subject matter of the suit and under section 52 of the Transfer of Property Act, if any right to any immovable property is directly and specifically claimed, ‑the property could be transferred by a party to the suit only under the authority of the Court, and since in the suit no permission from the trial Court was obtained by Dr. Ali Muhammad Nagori for gifting the property in the suit to Mst. Mehrunnisa as such the said gift was in violation of section 52 of the Transfer of Property Act.

6.It may be pertinent to mention here that during the pendency of the appeal with the Additional District Judge, Dr. Ali Muhammad Nagori died and his legal representatives were substituted as appellants and the present revision application has been filed by the legal representatives of late Dr. Ali Muhammad Nagori.

7. 1 have heard Mrs. Rashida Patel, learned counsel for the applicants, and Mr. S.S. Akber, learned counsel for respondents Nos. 1 and 2.

8. Under rule 10 of Order XXII, CPC the donee could continue to defend the suit in view of the transfer of rights by the donor 'o the donee by way of gift. The question, whether the donor had any rights in the property, the subject‑matter of the suit had to be decided in the suit on the pleadings of the parties thereto or the evidence led by the parties thereto.

9. Under the provisions of Section 52 of the Transfer of Property Act, the transfer of immovable property in the suit to which any right is directly and specifically claimed therein is not completely prohibited. What is contemplated by the provisions is that the property cannot be transferred or otherwise dealt with without the permission of the Court by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order 'which might be passed therein. In other words it means that the transfer of property by a party to suit in any manner during the pendency of the suit would not affect the rights of any other party to the suit to which he may be found entitled to. In my opinion, subject to these reservations, the property could be transferred even without permission of the Court but the transferee donee acquired right thereto or interest therein only subject to the judgment or order of the Court in the suit.

10. Section 52 of the Transfer of Property Act incorporates the doctrine of Lis Pendens. The doctrine was very succinctly explained by Lord Cranworth in Bellamy v. Sabine 44 English Reports (F.R) (Chancery) 842, at page 847, in the following words:‑

"It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its, operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party."

"Lord Macnaghten, in the Privy Council's case of Faiyaz Husain Khan v. Munshi Prag Narain and others (34 IA 102) referring to the above‑mentioned case observed at page 105 of the report, as follows:‑

"The doctrine of Us pendens, with which section 52 of the' Act of 1882 is concerned, is not, as Turner L.J. observed in Bellamy v. Sabine (1857) ID&J. 566, at page 584). 'founded, upon any of the peculiar tenets of a Court of Equity as toll implied or constructive notice. It is ................a doctrine common, to the Courts both of law and of equity, and rests ...........upon this foundation, that it would plainly be impossible that any, action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail‑' The mode of stating the doctrine, as Cranworth L.C. observed in the same case, is that 'pendente lite neither party to the of litigation can alienate the property in dispute so as t affect his opponent'." (Emphasis supplied)

12. 1, therefore, accept the revision application and set aside the impugned order. Mst. Mehrunnisa Nagori will be brought on record and the suit will proceed according to law. Parties to bear their own costs in the circumstances of the case.

M.Y.H./Z‑36/KPetition allowed.

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Case Law and Judgment (O.1X, R.13 & 5.115, framing issues and recording of evidence)

Civil Procedure Code (V of 1908)--

---O.1X, R.13 & 5.115--Ex parte decree, setting aside of--Application of respondent for setting aside ex parte decree rejected by trial Court without framing issues and recording of evidence--Appellate Court below accepted appeal tiled by respondent and remanded case to trial Court for decision afresh after framing issues--Trial Court, however, assumed that Appellate Court through order of remand had set aside ex parte decree after acceptance of respondent's application which was in fact remanded to Trial Court for decision after framing issues--Trial Court was thus directed to implement order of Appellate Court and decide said application after framing issues by High Court in revision.

Rana Muhammad Saleem Akhtar for Petitioners.

Nemo for Respondent.

Date of hearing: 22nd March, 1989. 

YAQOOB MASIH VS PROVINCE OF PUNJAB
1989 M L D 3111
[Lahore]
Before Munir A. Sheikh,
YAQOUB MASIH and others Petitioners
Versus
PROVINCE OF PUNJAB--Respondent
Civil Revision No. 1363 of 1988, decided on 22/03/1989.

JUDGMENT

This revision petition is directed against the order dated 8-6-1988 passed by the learned Addl. District Judge, Faisalabad, by which he has accepted the appeal filed by the respondents against the order dated 7-3-1987 passed by the learned trial Court dismissing an application under Order 9 rule 13 and Section 12 (2) of the CPC.

2. The facts relevant for disposal of this revision petition in brief are that on b-2-1985 ex parte decree was passed against the respondent in the suit filed by the petitioners. The respondent moved an application under Order 9 Rule 13 and Section 12 (2) read with Section 151 CPC for setting aside the said decree. The application was contested. The learned trial Court without framing issues and recording evidence rejected the application through order dated 7-3-1987. Feeling aggrieved the respondent filed appeal against the said order before the learned Addl. District Judge, Faisalabad. This appeal has been accepted through impugned order dated 8-6-1988 and the case remanded to the learned trial Court for decision in accordance with law after framing issues and giving findings on merits. This order has been challenged in this revision petition.

3. The respondent is absent despite service. He is, therefore, hereby proceeded against ex parte.

4. Learned counsel for the petitioners submitted that Chanan Masih one of the respondents in the appeal had died and the learned lower appellate Court Passed an order directing the appellants in the appeal to file amended appeal impleading the legal representatives of Chanan Masih as respondent. This order according to the learned counsel was not complied with and the appeal was decided without impleading the legal representatives of Chanan Masih.

5. Learned counsel for the petitioners could not support this argument with reference to any specific order passed by the learned lower appellate Court directing the appellants/respondents to file amended appeal impleading the legal representatives of Chanan Masih as respondent. This argument, therefore, cannot be accepted, as there is no material placed on the record in its support.

6. Learned counsel for the petitioners then argued that the learned lower appellate Court could only remand the case for disposal of application moved by the respondent under Order 9 Rule 13 and Sections 12(2) and 151 CPC after framing issues and recording evidence whereas after the remand the learned trial Court has assumed that the ex parte decree has been annulled through the impugned order and the main suit was directed to be decided after framing issues. According to the learned counsel the learned trial Court is proceeding with the suit itself.

7. The impugned order dated 8-6-1988 implicitly provides that only the application under Order 9 Rule 13 read with Section 12(2) and 151 CPC moved by the respondent for setting aside the ex parte decree was remanded for fresh decision after framing the issues. The relevant portion of the impugned order is as under:--

"The application moved by the appellant could not be disposed of without framing the issue and without allowing opportunity to the appellant to produce the evidence. The impugned order is not sustainable in the eye of law. When there are allegations of fraud, there is no, question of the limitation. Moreover, on the basis of fraud the application under Section 12(2) CPC can be moved at any time."

After recording this reasoning the operative part of the order reads as under:--

"For the foregoing reasons the appeal is accepted and order of the learned trial Court is set aside. The case is remanded to the learned trial Court for the decision in accordance with law. The learned trial Court shall frame the issue and thereafter give its findings on merits."

8. In view of these clear and specific directions in the remand order I am at loss to understand as to how the learned trial Court as argued by the learned counsel for the petitioners has assumed that the learned lower appellate Court through the impugned order has set aside the ex parte decree after acceptance of respondents application aforementioned. It is the said application which was remanded for decision after framing issues. The learned trial Court, therefore, is directed to implement the said order and decide the said application after framing the issues. The petitioners are at liberty to defend the said application on any grounds available to them under the law, both factual and legal subject to what has been held in the impugned order. The revision petition with these observations and clarification is disposed of without any order as to costs.

M.Y.H./Y-19/L

Order accordingly.

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Case and Judgment ( Party challenging decree on ground of misrepresentation, fraud and want of jurisdiction, being by way of application,)

Civil Procedure Code (V of 1908)--

---O. XXI, Rr. 97 to 103--Validity of decree, challenge to--Only remedy available to a party challenging decree on ground of misrepresentation, fraud and want of jurisdiction, being by way of application, Court on filing of such application, " should provide reasonable opportunities to both parties to prove and disprove facts in respect of alleged allegations--Order of . Court below dismissing application without holding enquiry simply on ground, that application was not competent in view of OXXI, Rr. 92 to 103, C.P.C. was set aside remanding case to be decided afresh.

Jahamat Jethamal for Appellant.

Khalique Humayun and Abdul Rahim. Kazi, Addl. A. G. for Respondents.

Date of hearing: 1st November, 1987.

 TOWN COMMITTEE, SUJAWAL VS MURTAZA KHAN

1989 M L D 1955

[Karachi]

Before Ajmal Mian, J

TOWN COMMITTEE, SUJAWAL--Appellant

versus

Hakim MURTAZA KHAN and others--Respondents

Civil Appeal No. 23 of 1981, decided on 01/11/1987.

JUDGMENT

This is a Miscellaneous Appeal against an order-dated 2-3-1981 passed by the learned District Judge Thatta in Execution Application No. 5 of 1980 dismissing the application under Order IX, rule 13 read with Section-12(2) CPC filed by the present appellant.

2. The brief facts leading to the filing of the above Miscellaneous Appeal are that the respondent filed Suit No: 8 of 1980 on 27-1-1980 for possession and mesne profits. In the above suit Chairman Town Committee, Headmistress Primary Girls School and the Secretary, Ministry of Education, Government of Sind were impleaded as defendants 1, 2 and 3 respectively. It appears that the summons of the suits were issued for 6-3-1980 and were received by the clerks of the said defendants. It appears that on 20-3-1980 learned District Judge, Thatta in whose Court the suit was filed, passed an order proceeding ex parte against the defendants. On 1-4-1980 ex parte decree was passed, whereas the appellant filed the above application on 13-12-1980, which has been dismissed inter alia on the ground that the same was not competent inasmuch as the premises were not vacated and, therefore, the provisions of Order 21 rules 97 to 103 CPC were not applicable. The appellant being aggrieved by the above order has filed the present appeal.

3. I have heard the learned counsel for the parties. It seems that the above application apart from being under Order IX, rule 13 CPC was under section 12(2) of the CPC. In paras 4 to 6 of the supporting affidavit the following averments were made:

"4. That the Government Primary School Sujawal is constructed by defendant No. 1 from the funds from P.L. 480 in 1963. Since then School is being run in the building and plot over which the school is constructed is neither evacuee nor declared as such before 1-1-57.

5. That the Government Girls Primary School is not constructed over evacuee plot No. 116-B admeasuring 901.3 sq. yards or on any evacuee plot.

6. That the plaintiff obtained the Decree through misrepresentation and fraud. Plaintiff had the knowledge that no plot bearing custodian No. 116-B admeasuring 901.3.sq. yards existed at Sujawal. He has obtained the transfer documents through misrepresentation, fraud while being id collusion with the Settlement Staff."

In spite of the above averments contained in the supporting affidavit, the learned District Judge without holding any enquiry in terms of Section 12(2) has dismissed the application. I am inclined to hold that in view of the above allegations, least the learned District Judge could have done was to provide reasonable opportunities to both the parties to prove and disprove the facts reproduced hereinabove. I am also of the view that the conclusion arrived at by the learned District Judge, Thatta that the application was not competent in view of Order 21 Rules 97 to 103 has overlooked the fact that after the amendment of Section 12 CPC the only remedy available to a party, who challenges the decree on the ground of mis-representation, fraud and want of jurisdiction is by way of an application. I would, therefore, set aside the order and would remand the case to .the learned District Judge:

I may observe that Mr. Khalid Humayoon, learned counsel for the respondent has pointed out to me that the respondent was even willing to lease out the plot to the Government in order to avert the eviction of the school from the premises. Mr. Jethanand learned counsel for the appellants submits that he will examine the case on the merits and thereafter he will try to bring about a settlement. The learned District Judge is directed to dispose of the above application within six months from the date of the receipt of the copy of this judgment.

Mr: Abdul Rahim Kazi, learned Additional Advocate General appearing for respondents 2 and 3 has supported the case of the appellants.

With the above observations the appeal stands disposed of with no order as to costs.

H.B.T./T-47/K.???????????

Order accordingly.

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Case Law (with Judgment Suit relating to sale of mortgaged O.XXXIV, .R.5 & O.IX, R.13 CPC)

Civil Procedure Code (V of 1908)-

---O.XXXIV, .R.5 & O.IX, R.13--Suit relating to sale of mortgaged property Application for passing final decree Defendants, although served with notice, neither filing any objection/counter-affidavit nor appearing to oppose the application under O.XXXIV, R.5, C.P.C.- Trial Court, in circumstances, could pass the order on basis of averments contained in application--Such order not being an ex parte order, O.IX, R.13, C.P. C. was not applicable in respect thereof--Trial Court, therefore, was justified in dismissing application of appellant and two respondents under O.IX, R.13, C.P. C.

Yousuf Rafi for Appellant.

Nizam Ahmed for Respondents.

Date of hearing: 7th May, 1987.

 

MUHAMMAD ARIF VS NATIONAL COMMERCIAL BANK Ltd.

1987 M L D 2059

[Karachi]

Before Ajmal Mian and Muhammad Mazhar Ali, JJ

MUHAMMAD ARIF--Appellant

versus

NATIONAL COMMERCIAL BANK Ltd. and 3 others--Respondents

High Court Appeal No.42 of 1979, decided on 07/05/1987.

JUDGMENT

AJMAL MIAN, J.---This appeal is directed against the orders dated 3-5-1976 and 7-10-78 passed by a learned Single Judge of this Court in Suit No.162/65.

2. The brief facts leading to the filing of the above appeal are that property bearing No.673/1-G-2, situated in Jamshed Quarters, Karachi (hereinafter referred to as the property) was purchased by respondent from the Settlement Department through PTO dated 30th Sept. 1961 which was followed by PTO dated 26-7-63.

It appears that on 10-6-65 respondent No.1 M/'s. National Commercial Bank Limited filed suit No.162/65 in this Court under Order XXXIV, rule 1, CPC on the averment that the property was mortgaged against the loan obtained by respondent No.3.

In the above suit respondents Nos.2, 3 and 4 were impleaded as defendants. A preliminary decree by consent was passed on 16-1-67. It was ordered that a Commissioner would be appointed for taking accounts for the purposes of adjusting the claim for supplies allegedly made by respondents No.2 and 3 to respondent No.1. It appears that late Salahuddin, Advocate, was appointed as the Commissioner in terms of the above consent preliminary decree. It further seem that he submitted two interim reports dated 4-3-68 and August, 1968, wherein he pointed that he could not complete the report as the parties had taken time. After that Mr. Paryani, Advocate, who was appearing for respondent No.1 filed a statement before the Commissioner stating therein, that respondent No.1 was under liquidation and that an official liquidator had been appointed and because of that by virtue of section 62 of the Banking Companies Ordinance, 1962, the question for consideration was, whether suit or the proceeding shall be continued in the Court. He prayed for the stay of the proceeding before the Commissioner. It may be pertinent to mention here that it appears that respondent No.3 has also taken loan from National Co-operative Bank and had created an equitable mortgage with the said Bank which in turn sub-mortgaged in favour of Karachi Central Co-operative Bank. Since respondent No.3 had not paid the loan amount, the Deputy Registrar, Co-operative Societies auctioned the property on 15-9-72 through a public auction. The appellant was successful bidder and his bid amount of Rs.48,0004 was accepted and the sale in his favour was confirmed on 16-9-72. The Deputy Registrar also issued a certificate of sale dated 20-9-72 in his favour. The official liquidator appointed for respondent No.1 Bank filed an application against the above sale before the Deputy Registrar, but application was dismissed by him on 28-9-72. Being aggrieved by the above order the Official Liquidator filed a revision under section 64-A of the Co-operative Societies Act, 1925, which was dismissed on 2-8-73.

3. The official liquidator also filed an application under Order I, rule 10, CPC for impleading the appellant as defendant which application was allowed by an order dated 26-3-73 and appellant was impleaded as defendant No.4 in the aforesaid suit. The appellant after being impleaded as defendant filed an application under Order I, rule 10 for getting National Co-operative Bank and Deputy Registrar impleaded but the said application was dismissed by an order dated 25-11-74.

I appear after that the official liquidator filed an application on 12-3-76 under Order XXXIV, rule 5 read with section 151, CPC (Miscellaneous Application No.1421/76) for passing of the final decree on the ground that the defendant had failed to make any payment of the amount and that they had not proved their claim before the commissioner. The above application had come up for hearing before a learned single Judge on 3-5-76 when none of the defendants or their counsel were present. The learned Single Judge by his order dated 3-5-76 granted the above application and passed the final decree. The present appellant and respondents Nos.2 and 3 filed two applications under Order IX rule 13, CPC i.e. one application by the appellant and one joint by respondents Nos.2 and 3 for setting aside the aforesaid order dated 3-5-76 but said applications were dismissed by an order dated 7-10-78. The appellant being aggrieved by the above two orders has filed the present appeal.

4. In support of the above appeal Mr. Yousuf Raft, learned counsel for the appellant, has urged as follows:-

(1) That since in view of the preliminary decree the accounts were to be taken, the learned single Judge was not justified in passing the final decree in violation of the terms of the preliminary decree.

(2) That the Commissioner was appointed by consent of the parties and since the Commissioner had expired it was equally the duty of respondent No.1 to have got appointed another Commissioner in place of the previous Commissioner.

(3) That the mortgage in favour of the respondent No.1 was not proper mortgage because it was based en PTO and no permission from the Chief Settlement Commissioner was obtained.

5. On the other hand, Mr. Nizam Ahmed, learned counsel for the respondent No.1 has contended as follows: -

(1) That the appeal is time-barred as the deficit Court-fee was paid after the expiry of the limitation.

(2) That the appellant has no locus standi to challenge either the preliminary decree or the final decree.

(3) That since the parties were served with respondent No.1's aforesaid miscellaneous application under Order XXXIV, rule 5, CPC and as no objections on counter-affidavit were filed and as none of defendants appeared to oppose the application the learned single Judge was justified in passing the above order dated 3-5-76.

(4) That a joint appeal could not have beer, filed against the above order dated 3-5-76 As well as against the order dated 7-10-78 and in any case the appeal against the first order had become time-barred by the time of filing this appeal.

6. We have noticed that the preliminary decree was passed with the consent of respondents Nos.2 and 3. The above respondents have not even filed any appeal against the order of the final decree dated 3-5-76. They have also not come forward to support the present appeal. It must, therefore, follow that they have accepted the final decree passed upon the mortgage.

7. In our view, the only question for consideration before us is, as to whether the learned single Judge was justified in passing the order dated 3 5-76 and thereafter the order dated 7-10-78. Admittedly all the defendants were served with the notice of respondent No.1/plaintiffs aforesaid application under Order XXXIV, rule 5 CPC and none had filed any objection/counter-affidavit to the said application nor any one appeared to oppose the application. In this view of the matter, the learned single Judge could pass the order on the basis of averments contained in the application. In terms of para.2 of the preliminary decree the respondents Nos.2 and 3 were to prove their claim before the Commissioner for the alleged supplies made by them to respondent No.1 which they failed to do so. Further question arises, whether the learned single Judge was justified in dismissing the appellant and respondents Nos.2 and 3's application under Order IX, rule 13, CPC. The learned Single Judge in his order under appeal has pointed out that Order IX, rule 13, CPC is applicable when there is an ex-parte decree or order whereas the order dated 3-5-76 cannot be said to be ex parte and, therefore, the learned single Judge was justified in dismissing the above two applications.

8. We are not inclined to touch upon the question, whether the mortgage in favour of respondent No.1 was valid or not as it is not necessary to go into that question in this appeal and it may also prejudice the-appellant in any subsequent proceedings.

9. The appeal has no merits and, therefore, it is dismissed with no order as to costs.

S.Q./M-225/K

Appeal dismissed.

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