PLJ 2023 Lahore 212
Civil Procedure Code, 1908 (V of 1908)--
----S. 94, O.XXXVIII Rr. 1 to 5--Specific Relief Act, (I of 1877), S. 42--Constitution of Pakistan, 1973, Art. 199--Suit for declaration--Application for arrest and attachment of property of Respondent No. 4--Dismissal of application--Concurrent findings--Jurisdiction--Doctrine of limine control--Challenge to--Petitioners are not plaintiffs but defendants are claiming ownership of possession of suit property on basis of sale deeds impugned in suit--No jurisdiction is vested in civil Court to refer any civil matter qua determination of rights in an immovable property pending before it to Anti-Corruption Establishment, same has also been rightly refused by trial Court and said findings have been upheld by revisional Court below--Court is inclined to apply doctrine of limine control in instant case as counsel for petitioners has failed to point out any infirmity in concurrent findings of Courts below which can form legal or factual basis of proceeding further in constitutional jurisdiction of High Court. [Pp. 215, 216 & 220] A, D & E
PLD 1992 SC 62.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVIII R. 5--Object of--Object of Order XXXVIII Rule 5 of the, CPC was to prevent any defendant from defeating realization of decree that may be ultimately passed in favour of plaintiff by either disposing of or removing assets from jurisdiction of Court.
[P. 219] C
(2008) 2 SCC 302 ref.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVIII R. 1--Arrest of a person--Power under Order XXXVIII, Rule 1 seeking arrest of a person is a drastic and extraordinary power and such power should not be exercised mechanically--It should be used sparingly and strictly in accordance with Rule.
[P. 216] B
Mr. Muhammad Asif Manzoor, Advocate for Petitioners.
Date of hearing: 19.1.2022.
PLJ 2023 Lahore 212
[Multan Bench Multan]
Present: Anwaar Hussain, J.
Mst. SEEMA YOUSAF etc.--Petitioners
versus
DISTRICT JUDGE etc.--Respondents
W.P. No. 20144 of 2021, decided on 19.1.2022.
Order
Precisely, following legal questions arises out of the factual canvas of the case for adjudication by this Court, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter “the Constitution”):
i. Whether a defendant in a suit for declaration instituted against him and others can invoke provisions of Order XXXVIII, Rules 1 to 5, Code of Civil Procedure 1908, (hereinafter “CPC”) against a co-defendant?
ii. Whether civil Court is vested with the jurisdiction to refer any matter out of pending lis qua determination of civil rights to any other forum or Court such as Anti-Corruption Establishment?
2. Brief facts of the case are that on 13.01.2020, Respondents No. 6 to 8/plaintiffs instituted a suit for declaration titled “Sh. Muhammad Sarfraz etc. v. Province of Punjab etc.” against the petitioners as well as Respondent No. 9 and proforma respondents whereby they challenged the legality of registered sale deeds bearing No. 583 dated 10.03.2007, 965 dated 16.04.2007 and order dated 08.01.2020 passed by the ADCR, Layyah claiming themselves as legal heirs of one Mst. Hafeez Begum daughter of Aziz Bakhsh. During the pendency of the suit, the petitioners filed an application under Order XXXVIII Rules 1 to 5, CPC read with Section 94 thereof, for arrest and attachment of property of Respondent No. 9/Defendant No. 4 namely, Muhammad Sarwar as well as for ensuring his appearance before the Court alleging that he had committed fraud with them. It has been further prayed in the application that the matter also be referred to the Anti-Corruption Establishment and till then the suit instituted by Respondents No. 6 to 8 be sine die adjourned. It is the case of the petitioners that said Respondent No. 9 who is Defendant No. 4 before the learned trial Court, sold the suit property through the above referred sale deeds, and now is avoiding his appearance before the learned trial Court in connivance with Respondents No. 6 to 8 who are the plaintiffs in the suit just to linger on the matter and defeat the rights of the petitioners qua the suit property, therefore, his arrest will be in the interest of justice. Similarly, it is the assertion of the petitioners that the matter once referred to and decided by the Anti-Corruption Court, any decision passed therein will be a valuable piece of evidence in favour of the petitioners.
3. The learned trial Court dismissed the application of the petitioners, vide order dated 05.10.2021. Feeling aggrieved, the petitioners filed civil revision, which was also dismissed by learned District Judge, Layyah vide judgment dated 22.11.2021. Hence, this writ petition has been filed.
4. Learned counsel for the petitioners submits that since Respondent No. 9 has committed forgery and is now avoiding service and appearance as co-defendant along with the petitioners, therefore, either coercive measures in terms of Order XXXVIII, Rules 1 to 5, CPC be adopted to ensure his presence before the Court or the matter must be referred to the Anti-Corruption Establishment and the learned trial Court must wait for outcome of the matter after its reference to Anti-Corruption Establishment.
5. Arguments heard. Record perused.
6. Before answering legal questions formulated above qua scope of Order XXXVIII Rules 1 to 5, CPC, it is pertinent to mention here that the prayer of the petitioner contained in application under Order XXXIII, CPC when perused reveals that it is more like a lengthy narration of opinion of the petitioners qua their grievance than a precise prayer for the redressal thereof. Some of the salient points are reproduced for facility of reference:
استدعا (PRAY)
بحالات بالا معزز عدالت سے استدعا کی جاتی ہے که مدعاعلیہ نمبر 4 محمد سرور ولد واحد بخش کو گرفتار کر کے اس سے بیان لیا جاوےاگر مدعاعلیہ نمبر 4 یہ بیان دیتا ہے کہ اس نے اپنے تمام بہن بھائیوں کی باہمی مشاورت اور رضامندی سے خانگی ونڈ کر نے کے بعد اپنے حصہ میں آنے والی اپنی وراثتی جائید اد میں سے مکان ہذا اور زرعی زمین بحق مدعاعلیہ نمبر 5 سیما یوسف دختر یوسف علی فروخت کی ہے تو پھر یہ کیس (case) ختم کیا جاوے جو کہ قرین انصاف ہو گا اور مدعیان کو جھوٹے دعوی میں معزز عدالت کا قیمتی وقت ضائع/ بر باد کرنے پر بھاری جرمانہ کیا جاوے۔ اگر مدعاعلیہ نمبر 4 مدعیان اور ترتیبی مدعاعلیہان کے کہنے کے مطابق غلط بیان دیتا ہے یعنی یہ کہتا ہے کہ اس نے جعلسازی فراڈ کیا ہے تو پھر مدعاعلیہ نمبر 4 اور مدعا علیہ نمبر 8 محمد شریف دونوں کو جیل بھیج دیا جاوے کیونکہ محمد شریف مکان ہذا کی رجسٹری کرانے میں گواہ ہے اور سب سے بڑا ملزم ہے کیونکہ محمد شریف نے خود دونوں رجسٹریاں کرائی ہیں۔۔۔۔۔۔ معزز عدالت سے استدعا کی جاتی ہے کہ کیس (case) اینٹی کر پشن کے حوالے کیا جاوے تاکہ وہ تفتیش کرنے کے بعد اس بات کا تعین کرے کہ اس سازش میں بڑا کر دار کس کا ہے۔ میرے خیال کے مطابق سازش ، جعلسازی اور فراڈ میں مرکزی کردار میں یہ لوگ شامل ہیں۔
۔۔۔۔۔۔
معزز عدالت سے استدعا کی جاتی ہے کہ اینٹی کر پشن کے فیصلے تک کیس (case) ہذا کو Adjourned Sine Die کیا جاوے اور اینٹی کر پشن کے فیصلے کی روشنی میں معز ز جج صاحب فیصلہ فرمائیں کیونکہ اینٹی کر پشن (کریمینل عدالت) کا فیصلہ سول عدالت کے لیےقابل قدر شہادت ہوگا۔
۔۔۔۔۔۔۔۔۔۔۔۔
دیگر دادرسی بمطابق قانون دلوائی جاوے۔“
(Emphasis supplied)
7. Having observed that the prayer clause of the petitioner is more like an opinion, it is pertinent to mention that in a suit instituted by a plaintiff, no doubt coercive measures under the provisions of Order XXXVIII, CPC can be adopted for ensuring presence of the defendant(s) when the plaintiff in a suit has an apprehension that any ultimate decree in his favour is likely to be frustrated by absence of the defendant. In the instant case, the petitioners are not the plaintiffs but the defendants and are claiming ownership of the possession of the suit property on the basis of sale deeds impugned in the suit. While the petitioners have quoted Rules 1 to 5 of Order XXXVII, CPC in their application, however, it is the import of Rules 1 and 5, CPC, which requires examination and at this juncture, it deems imperative to reproduce Rule 1, for facility of reference:
“1. Where a defendant may be called upon to furnish security for appearance.--Whether at any stage of a suit, other than a suit of the nature referred to in Section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise,
(a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him,--
(i) has absconded or left the local limits of the jurisdiction of the Court, or
(ii) is about to abscond or leave the local limits of the jurisdiction of the Court, or
(iii) has disposed of or removed from the limits of the jurisdiction of the Court his property or any part thereof, or
(b) that the defendant is about to leave Pakistan under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for appearance:
Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.”
(Emphasis supplied)
Perusal of Order XXXVIII in general and Rule 1 thereof in particular dawns upon the reader in crystal-clear manner the object and scope of these provisions. These provisions being preemptory in nature aim at ensuring that an ultimate decree may not be defeated by the defendant. The main objective is to ensure the protection of the plaintiff and not a co-defendant in whose favour no decree is sought and/or prayed as is the position in the instant manner. It is pertinent to mention that power under Order XXXVIII, Rule 1 seeking arrest of a person is a drastic and extraordinary power and such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The said provisions cannot be handed over as a sword in the hands of a litigant to achieve oblique motives rather the same has been incorporated for the help of the Court to ensure that unscrupulous defendant does not render the decree of Court as toothless piece of paper. It is clear that the trial Court has been cloaked with the power to call upon the defendant to furnish security for production of property, even before the judgment, in case the Court is satisfied that the defendant, with an intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. In the matter in hand, it is not the case of the petitioners that any property is likely to be disposed of or removed by their co-defendant i.e., Respondent No. 9 before this Court since the matter relates to immovable property which as per their own contention is in their possession. Moreover, these provisions vest the Court with the preemptive powers to forestall any ill-motivated attempt of defendant to frustrate an ultimate decree and defeat the ends of justice. This is further fortified by embargo and curtailment placed by the legislature itself on the exercise of this power in certain suits provided in Clauses (a) to (d) of Section 16, CPC. In order to further ascertain the intention and object, it may be of some enlightenment to have a glance over the nature of suits provided in Clauses (a) to (d) of Section 16, CPC. For facility of reference, Clauses (a) to (d) of Section 16, CPC are reproduced hereunder:
“16. Suits to be instituted where subject matter situate. --Subject to the pecuniary or other limitations prescribed by any law, suits--
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) .…,
(f) ….,
Shall be instituted in the Court within the local limits of whose jurisdiction the property is situate, or in the case of suits referred to in clause (c) at the place where the cause of action has wholly or partly arisen.”
8. A run-through the clauses of Section 16 reveals that these kinds of suits can be filed only before the Court within whose territorial jurisdiction such immovable property lies. This has been obligated so with the object that any decree passed with respect to such immovable property is got executed by the same Court and the decree is not frustrated. The applicability of provisions of Order XXXVIII Rule 1, CPC has been excluded with respect to suits in the nature provided in Clauses (a) to (d) of Section 16, CPC because those suits are to be filed within the territorial jurisdiction of Courts where such property is situated, which rules out any possibility of avoidance of the execution of decree if and when it is ultimately passed. As the suit before the trial Court is a suit for declaration qua rights in immovable property, which clearly falls under the purview of clause (d) of Section 16, CPC and has been filed in the Court within whose territorial jurisdiction the immovable property is situate, the mechanism under Order XXXVIII, CPC cannot be invoked at the instance of the petitioners who are not the plaintiffs in the case.
9. The above discussion makes it amply clear that the power of the Court under Order XXXVIII, CPC can be invoked for the favour of a plaintiff, having a prima facie case, and not in favour of a defendant against the co-defendant in a suit. When confronted in this regard, learned counsel for the petitioners argues that in Order XXXVIII, Rule 1, CPC, it is also envisaged that order of arrest can be passed if the trial Court is satisfied, by affidavit or otherwise, that the defendant is avoiding any process of the Court and hence, the said rule is squarely applicable in the instant case. In this regard, suffice to mention that admittedly, Petitioner No. 1 is daughter of Petitioner No. 2 and wife of Respondent No. 9, who is Defendant No. 4 before the learned trial Court. Respondents No. 6 to 8 instituted a suit in which Respondent No. 9 has been proceeded against ex-parte and it is the title of the petitioners qua the suit property, which is in question in the suit and the petitioners have every right and all the opportunities, in accordance with law, to defend sale deeds executed in their favour, by producing its marginal witnesses, as well as any other evidence in their favour, hence, the discretion exercised by the learned trial Court in not issuing warrant of arrest of Respondent No. 9 to ensure his presence and upheld by the learned revisional Court below is neither arbitrary nor unreasonable and hence, no interference is required.
10. Similarly, Order XXXVIII, Rule 5, CPC can be invoked when there is apprehension that a defendant will obstruct a decree which is likely to be passed against him and in favour of the plaintiff, which is not the case and there is nothing to establish as to which property as a result of such decree is likely to be removed or disposed of by Respondent No. 9. Similarly, the petitioners have not mentioned description of any property of Respondent No. 9, which is required to be attached in terms of Rule 5(2) of Order XXXVIII, CPC. For reference, Rule 5 of Order XXXVIII, CPC is reproduced below:
“5. Where a defendant may be called upon to furnish security for production of property.---(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him--
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,
the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.”
While spelling out the object of Order XXXVIII, Rule 5, CPC, the Indian Supreme Court in case reported as “Raman Tech. & Process Engg. Co. & others v. Solanki Traders” [(2008) 2 SCC 302], held that the object of Order XXXVIII Rule 5 of the CPC was to prevent any defendant from defeating the realization of the decree that may be ultimately passed in favour of the plaintiff by either disposing of or removing assets from the jurisdiction of the Court. The relevant extract of the said decision is reproduced below:
“4. The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of Order 38 Rule 5, CPC in particular, is to prevent any defendant from defeating the realization of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the Court, his movables. …………………. This would mean that the Court should be satisfied that the plaintiff has a prima facie case….. his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case.
(Emphasis supplied)
In view of the above discussion, the petitioners have failed to bring their case within the purview of Order XXXVIII, Rule 5, CPC as well.
11. In so far as the contention of learned counsel for the petitioners that since serious allegation of forgery has been alleged by Respondents No. 6 to 8 against Respondent No. 9, therefore, the matter be referred to the Anti-Corruption Establishment and the suit before the trial Court be adjourned sine die till then is concerned, suffice to say that such jurisdiction does not vests with the civil Court and the learned trial Court and revisional Court below have rightly discarded such wishful prayer of the petitioners. In Federal Government Employees Housing Foundation (FGEHF), Islamabad and another v. Malik Ghulam Mustafa & others (2021 SCMR 201), in para 133, it was held by the august Supreme Court of Pakistan that:
“…. It is a settled position in law that jurisdiction on Court cannot be conferred even by consent; unless it is so conferred by or under Constitution and or law.”
Hence, it is clear that for the purpose of a Court or Tribunal, such Court or Tribunal has to derive such jurisdiction from or under the Constitution or by or under any law. As no jurisdiction is vested in the learned civil Court to refer any civil matter qua determination of rights in an immovable property pending before it to the Anti-Corruption Establishment, the same has also been rightly refused by the learned trial Court and said findings have been upheld by the learned revisional Court below.
12. Both the learned Courts below have given sound reasons for dismissing application of the petitioners under Order XXXVIII, CPC and have rightly held that Respondent No. 9 namely, Muhammad Sarwar has already been proceeded against ex-parte after due process of law and at this stage, there is no apprehension of causing of loss to the property or its removal from the jurisdiction of the trial Court. This Court is inclined to apply doctrine of limine control in the instant case as learned counsel for the petitioners has failed to point out any infirmity in the concurrent findings of the Courts below which can form legal or factual basis of proceeding further in the constitutional jurisdiction of this Court and in this regard fortified by the law laid down by the august Supreme Court of Pakistan in “Muhammad
Mustafa v. Excise and Taxation Officer Lahore and another” (PLD 1992 SC 62).
13. For what has been discussed above, the present constitutional petition is dismissed in limine.
(Y.A.) Petition dismissed
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