2016 M L D 966
[Balochistan]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J
WALI MUHAMMAD ---Petitioner
Versus
ABDUL WAHID and 3 others ---Respondents
C.P. No.388 of 2011, decided on 22nd December, 2015.
(a) Civil Procedure Code (V of 1908) ---
----Ss.12(2) ---Specific Relief Act (I of 1877), S.42 ---Suit for declaration ---Transfer of ownership
of official accommodation on permanent basis ---Fraud and misrepresentation ---Decree, setting
aside of ---Contention of applic ant was that impugned decree was obtained through fraud and
misrepresentation ---Application for setting aside of decree was dismissed concurrently ---
Validity ---Respondent -plaintiff was bound to issue notice to the Government through its
Secretary ---Governm ent was entitled to 90 days period for filing of written statement in the suit --
-Suit was decided by the Trial Court within a period of two months which was contrary to the
mandate of S.80, C.P.C. ---Proceedings conducted by the Trial Court in the suit were
unsustainable and untentable ---Callous attitude of public functionaries should not be allowed to
culminate in deprivation of public of its property that belonged to it ---Impugned judgment and
decree had been obtained by practicing fraud upon the Trial cou rt---Subsequent orders passed by
the Trial Court and revisional court would lack legal substance ---Department was not vested
with any power to allot/transfer the ownershipo of residential building to anyone on permanent
basis ---Suit was incompetent as plai ntiff had no legal right and title to have had filed the suit ---
Impugned orders passed by the courts below were set aside and suit filed by the plaintiff was
dismissed ---Government was directed to ascertain the status of all public buildings and ensure
that said buildings were safe and secure, no encroachment and permanent allotment transferring
the ownership had been made or would be made and responsibilities of delinquent official should
be fixed who failed to defend the public property during the pendenc y of suit ---Result of action
so taken should be sent through Registrar of High Court for perusal in Chamber ---Constitutional
petition was allowed in circumstances.
Assistant Commissioner, Latifabad, Hyderabad and 2 others v. Messrs Muhammadi
Enterprise s through Managing Partner PLD 1999 Kar. 329; Provincial Government through
Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337; Zarai Taraqati Bank Ltd. v.
Said Rehman and others 2013 SCMR 642 and Haji Farmanullah v. Latif -ur-Rehman 2015
SCMR 1708 distinguished.
(b) Administration of justice ---
----Courts being custodian of public property were required to remain careful and cautious while
dealing with the cases involving public property.
Nemo for Petitioner.
Adnan Ejaz, Rehmatullah and Amanullah Durrani for Respondent No.1.
Shai Haq Baloch, A.A.G. for Official Respondents.
Date of hearing: 22nd October, 2015.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, C.J. ---Following relief has been claimed in the
instant Constitutional Petition: --
"It is, therefore, respectfully prayed that this Hon'ble court may kindly be pleased to set
aside the order dated 9 -3-2011, judgment dated 19 -5-2011 and judgment dated 30 -11-
2010 and the respondents/concerned authorities may kindly be directed to allo t the
quarter No.C/218 situated at Babo Muhalla Zhob to the petitioner on temporary basis in
the interest of justice, equity and fair play."
2. Facts relevant for the disposal of instant petition are that the respondent No.1 instituted a
suit against the respondent Nos. 2 to 4, in the court of Civil Judge, Zhob. It was averred in the
plaint that the plaintiff is legal allottee of quarter No.C/218, situated at Babu Mohullah, Zhob.
On 09.08 -2007 respondent No.2 issued a notice apprising the plaintiff that a llotment order issued
in his favour is fake and bogus and consequent upon issuance of notice, on 11th March, 2008 the
Ex-DCO Zhob (posted as Secretary Board of Revenue) cancelled the allotment order dated 22nd
March, 1999 and allotted the quarter in questi on to the petitioner. Feeling aggrieved of the order
dated 22nd March, 1999 the respondent No.1 filed a suit before the District Judge, Zhob which
was later -on dismissed vide order dated 30th September, 2009 because the Ex -DCO withdrew
the cancellation ord er. Thereafter, the respondent No.3 again on 24th February, 2010 issued a
notice to respondent No.1 for vacation of quarter in question within 7 days. In response to the
notice the respondent No.1 served the respondents Nos. 2 to 4 with a legal notice and on
receiving no reply the suit was filed.
3. The suit was contested by the respondents Nos. 3 and 4 by way of filing written statement
wherein besides raising certain preliminary legal objections claim of the respondent No. 1 was
refuted on merit as well . Respondent No.2 did not turn up as such was proceeded against ex -
parte. Initially the trial Court rejected the plaint; however, the appellate Court remanded the case.
The learned trial court, out of the pleadings of the parties framed following issues fo r
determination: --
(i) Whether instant suit is entertainable and reasonable cause of action exist ?
(ii) Whether plaintiff is lawful allottee of quarter in question?
(iii) Whether plaintiff is entitled for relief claimed?
(iv) Relief?
4. Thereafter the parties were directed to adduce evidence in support of their respective
claims. The respondent No.1/plaintiff produced seven PWs and got recorded his own statement,
whereas, in rebuttal, neither the respondents Nos. 2 to 4/defendants produce d any witness in
defence nor got recorded their statements. The learned trial court after hearing the parties and
evaluating the evidence vide impugned judgment and decree -dated 30.11.2010 decreed the suit.
It is imperative to mention that the official res pondents did not challenge the judgment and
decree of the trial Court. Feeling aggrieved of the above referred to judgment and decree the
petitioner filed an application under Section 12(2), C.P.C. contending therein that the decree has
been obtained by th e plaintiff/respondent on the basis of mis -representation and fraud because
the plaintiff has built up his case on the basis of a so -called allotment order dated 22nd March,
1999 but the same has already been found/declared fake and bogus. So much so an FI R.
No.42/10 has also been lodged against the decree holder. It was mentioned in the application that
initially the quarter in question was allotted to the applicant by the DCO and an application for
permanent allotment of quarter in question is pending bef ore the authorities. The learned trial
Court after hearing the parties vide order dated 9th March, 2011 rejected the application with a
token cost of Rs.1000/ - under Section 35 -A of the C.P.C. The petitioner feeling aggrieved of the
Judgment and decree dat ed 30th November, 2010 and order dated 9th March, 2011 (passed on
application under Section 12(2), C.P.C.) preferred a Revision Petition before the District Judge,
Zhob who vide Judgment dated 19th March also dismissed the Revision Petition. Hence, the
instant Constitution Petition.
5. The petitioner in the petition has assailed the judgment/decree as well as the orders
impugned mainly on the ground that the official respondents had themselves time and again
issued notices to the respondent No.1/decree ho lder requiring him to vacate the quarter in
question because he has illegally occupied the same. It is further stated that the
plaintiff/respondent No. 1 based his suit on bogus document but the trial court instead of
dismissing the suit illegally decreed the same. The petitioner while filing application under
Section 12(2), C.P.C., proved before the trial as well as revisional Courts that the respondent
No.1 has obtained the decree by mis -representation and fraud but the courts below failed to take
into co nsideration this aspect of the case. The respondent No.1 is a retried government servant
and now trying to get the quarter No.C/218 allotted on permanent basis which cannot be done in
any case but this fact escaped notice of both the courts below.
On th e other hand Messrs Adnan Ejaz, Rehmatullah and Amanullah Durrani, Advocates
for respondent No.1 vehemently opposed the petition and argued that the petitioner is neither a
necessary party nor possesses any legal character of file the instant application. It was further
argued that in the year 2008, an illegal order was issued in favour of the petitioner by Ex -DCO
whereas already in the year 1999 MBR -III has allotted and transferred the ownership of the
quarter in question in favour of the respondent No.1. The respondent No.1 has neither suppressed
any fact before the trial court nor obtained the decree on the basis of mis -representation or fraud.
Mr. Shai Haq Baloch, learned AAG opposed the submissions made by learned counsel
for the respondent No.1 and supported the petition. He contended that MBR is not vested with
the powers to allot a residential building on permanent basis and transfer the ownership to any
body much less to a retired employee. Learned AAG stressed that no notice as contemplated by
section 80, C.P.C. was ever issued to respondent No.2 prior to filing of the suit and on this
ground alone the entire proceedings stand vitiated. The trial Court passed ex -parte order against
the MBR in haste and even without recording statement of Process S erver. He further stated that
it appears the local administration has joined hands with private respondent and did not challenge
the decree passed in favour of the plaintiff. Learned AAG was of the view that if for the sake of
argument it is presumed that MBR was served, in that case as well, the respondent No.2 was
entitled for a period of 90 days to file written statement. Lastly, the AAG urged that the
respondent No.1 has obtained the decree by practicing fraud upon the Court by way of producing
forged a nd fake documents, therefore, the decree/orders impugned before this Court are liable to
be set aside and the basic suit filed by the private respondent being incompetent and non -
maintainable be dismissed with cost through out.
6. We have heard the learn ed counsel for the parties and gone through the available record.
The perusal of record reflects that the respondent No.1 claims to be an allottee of the residential
owned by the Provincial Government and is in occupation of said premises. A notice, perhap s in
the year 2009 was issued by the Deputy Commissioner to respondent No.1 to get the premises
vacated which culminated in filing of a suit by the respondent No.1 against the Deputy
Commissioner, Zhob, however, as later on the notice was withdrawn, the su it was dismissed
having become infructuous. Thereafter, once again the Deputy Commissioner, Zhob issued a
notice to respondent No.1 and the latter again filed Civil Suit No.12/2010. The plaint was
rejected on 21st July, 2010 as it lacks cause of action. Th e said order was challenged by means of
filing Civil Appeal No. 09 of 2010, which was accepted on 29th September, 2010 by the
appellate Court in the absence of District Attorney and the case was remanded to the trial Court
with direction to frame issues, r ecord evidence and decide the case on merits. Consequent upon
remand the trial court framed issues, recorded evidence and eventually decreed the suit. It may
not be out of place to mention here that allotment order was issued in favour of the petitioner,
however, he was not arrayed as party to the proceedings, therefore, the petitioner filed an
application under section 12(2), C.P.C. which was dismissed by the trial Court and the revision
petition against the said order also met with the same fate.
7. Keeping in view the importance and nature of the matter certain queries were put to MBR
vide order dated 26th May, 2014. For the sake of facility the querries are reproduced herein
below: --
a) Whether the Member Board of Revenue is competent to allot/trans fer the
ownership of residential quarters of the Government without cost and if so, under what
authority and on what terms and conditions; the relevant law must be referred to.
b) if the MBR is not competent to allot the same, whether any action has been taken
by Government against respondent No.1 for recovery of possession or for collection of
rent etc; who is claiming the possession of the said quarter right from the year, 1999
onwards.
c) After passage of the decree dated 30.11.2010, whether any appe al was filed, if
not, who would stand responsible and the report must reach on or before next date of
hearing positively". -
8. The MBR in response to the queries filed the reply, which reads as under: --
(a) Neither the Senior Member Board of Revenue no r any other Officer is competent
to allot/transfer the ownership of the Government Quarter, on permanent basis to a
Government employee or retired Government employee. However, according to this
Board's Notification dated 31 -03-2009 (Annex -A), the Division al Commissioners are
authority for temporary allotment of residences. Offices and other assets owned by Board
of Revenue. It may also be clarified that since the creation of Board of Revenue no such
allotment order on permanent basis has been found to be i ssued from the Board of
Revenue.
(b) The Senior Member Board of Revenue is not Competent Authority for allotment
of Government Quarter. However; the then District Coordination Officer Zhob was asked
to initiate criminal case against Respondent No.1 and lodge FIR against him vide this
Board's letter No.485 -8-2006 dated 09 -08-2007 (Annex -B). On 17 -03-2011 (Annex -C), a
brief letter was made to the Commissioner, Zhob with a copy to Deputy Commissioner,
Zhob that Deputy Commissioner, Zhob has not properly defended the case. The DCO/DC
Zhob was aske d to initiate criminal case against the incumbent and lodge FIR. On 3rd
July, 2014 the Deputy Commissioner, Zhob was again asked to intimate as to whether
any action has been taken against Respondent No.1 for recovery of possession or for
collection of ren t etc. On 8 -04-2015 (Annex -D). The Commissioner Zhob Division was
again asked to intimate latest position of the case as well as detail report may be sent to
Advocate General Balochistan immediately. But nothing has been heard from
Commissioner Zhob and De puty Commissioner, Zhob. In view of Advocate General
Balochistan letter dated 02 -09-2015 another letter dated 11 -09-2015 (Annex -E), has been
sent to Deputy Commissioner, Zhob with a copy to Commissioner Zhob Division that
you were asked to initiate crimina l case against respondent No.1 and lodge FIR time and
again. Please intimate action taken against the above named retired government
employee.
(c). It is submitted that after passage of the decree dated 30 -11-2010 by the Court of
Civil Judge, Zhob in Ci vil Suit No. 12/2010 filed by Mr. Abdul Wahid son of Abdul
Qadir Niazi, a letter dated 02 -03-2011 (Annex -F) was written to the Deputy
Commissioner, Zhob with the request to file appeal before the Civil Judge Zhob and send
progress report to this Board. Ano ther comprehensive reference dated 17th March, 2010
(Annex -G) was sent to the Commissioner Zhob Division with a copy to the Deputy
Commissioner, Zhob wherein the Commissioner was regretfully informed that the
Deputy Commissioner, Zhob has not properly defe nded the case and the Court has
decided the case against the Government. Furthermore, the Commissioner Zhob was
requested to take personal interest and direct the Deputy Commissioner, Zhob to file an
appeal before the Court against the judgment passed by t he Court of Civil Judge Zhob
under intimation to this Board. On 08 -04-2015 the Commissioner Zhob Division was
again asked to intimate latest position of the case. The Deputy Commissioner, Zhob with
a copy to Commissioner Zhob Division has again been asked to intimate as to whether
any appeal was filed before the court against the judgment passed by the Court of Civil
Judge Zhob or otherwise, Replies/intimation is still awaited from both the concerned
authorities.
The Commissioner Zhob has also been asked to intimate the following information on the
format mentioned in this Board letter dated 11 -09-2015 (Annex -H) within three days
positively: --
1. Number of Government quarter situated in Babo Muhallah Zhob.
2. Name of allottees and date of their allotme nt orders.
3. Name of Authority allotted the Government Quarters.
4. Present status of the quarters.
Rules/policy for allotment".
9. Furthermore, admittedly the service upon MBR was not proper, therefore, the
proceedings initiated do not satisfy t he mandatory requirements of Section 80, C.P.C. Legally, a
plaintiff is bound to issue notice to the Government through its concerned Secretary as
contemplated by Section 80, C.P.C. and in case no notice is issued, the Government is entitled
for 90 days pe riod for filing of written statement. In the instant case the suit filed by the
respondent No.1 was rejected on 21st July, 2010. The said order was challenged by means of
Civil Appeal No. 09 of 2010 which was accepted on 29th September, 2010 and the case w as
remanded to the trial Court. Naturally some time might have been consumed in dispatching the
record to the trial Court. In such state of affairs it can safely be concluded that the suit, was
decided by the trial Court within a period of two months which runs contrary to the mandate of
section 80 of Civil Procedure Code. If the service is supposed to have been effected on the MBR
even then the latter was entitled for three months time to file the written statement as
contemplated by Section 80, C.P.C. The trial Court utterly failed to appreciate this legal aspect of
the matter. The trial Court proceeded the respondent No.1 ex -parte, recorded evidence and
concluded the proceedings probably within two months. Thus; the proceedings so conducted are
in utter d isregard and flagrant violation of Section 80, C.P.C., therefore, un -sustainable and
untenable. The trial Court did not take into account this legal aspect of the matter even in second
round i.e. while hearing the application under Section 12(2), C.P.C. Si milarly, the revisional
Court failed to appreciate the illegality committed by the trial Court which of course provides
plausible justification for our interference. Reliance is placed on the judgment titled as
Commissioner, Latifabad, Hyderabad and 2 othe rs v. Messrs Muhammadi Enterprises through
Managing Partner reported in PLD 1999 Karachi 329 (relevant page -334), wherein it was
observed as under: --
"9. I have carefully considered all these contentions and perused the material on record.
The Honourable Supreme Court has held in the case Azad Hussain v. Huji Muhammad
Hussain (supra) that: --
"Under Order VIII, Rule 10, C.P.C. Court has discretionary power to pronounce
judgment if defendant, so required to file written statement, foils to do so and if su ch
discretion is exercised after consideration of all the facts and circumstances then such
judgment pronounced would be valid and legal though passed without recording any
evidence whatsoever.
10. Obviously, in the above authority it is emphasised that discretion under Order VIII,
Rule 10, C.P.C. is to be exercised after consideration of all the facts and circumstances
but in the instant case, the trial Court as well as the First Appellate Court have been
oblivious of the most significant aspect of the m atter that the defendant No. 3 was
Government of Sindh and the defendants Nos. 1 and 2 were Public Officers, therefore,
the suit was hit by section 80, C.P.C. No doubt, Order VIII, Rule 1, C.P.C. provides that
period allowing for filing the written stateme nt shall not ordinarily exceed 30 days and
further as held by the Hon'ble Supreme Court in the case Azad Hussain v. Haji
Muhammad Hussain (supra) that the Court has discretionary power to pronounce
judgment under Order VIII, Rule 10, C.P.C. but every discr etion is to be exercised
judiciously and in accordance with law. In the instant case, the trial Court while
decreeing the suit has exercised jurisdiction in clear disregard of the provisions of section
80, C.P.C. as the proviso the subsection (2) of sectio n 80 in express terms calls upon the
Court to allow not less than three months to the Government to submit its written
statement but here the suit has been decreed within a period of less than two months. It is
an admitted position that no notice was deliv ered to or left at the office of
applicants/defendants within the meaning of subsection (1) of section 80, C.P.C. although
the averments in the plaint undoubtedly spell out that the purported acts of defendants
Nos. 1 and 2 have been performed in their off icial capacity as public officers.
The summons of the suit was served on 24 -2-1994 and the suit was decreed on 11 -4-1994
winding up the entire proceedings within a total period of 47 days in flagrant disregard of
proviso to subsection (2) of section 80, C.P.C. which lays down that the Court shall allow
not less than three months to the Government to submit its written statement."
10. The AAG appears to be right in saying that official respondents Nos.3 and 4 joined hands
with the plaintiff and did not a dduce any evidence nor any document was produced, so much so
they did not record their statement in support of written statement. Similarly, after the passage of
decree no appeal was preferred. The Courts being the custodian of public property are required to
remain careful and cautious while dealing with the cases involving public property. Of course
both the parties are entitled to equal treatment, however, callous attitude, cold response and
compromising behaviour of the public functionaries during the c ourse of proceedings may not be
allowed to culminate in deprivation of public of its property that belongs to it. In this regard we
are fortified by the dictum laid down in the judgment titled as "Provincial Government through
Collector, Kohat and another v. Shabbir Hussain reported in PLD 2005 SC page 337 (relevant at
page 343), wherein it was observed as under: --
"Likewise, the learned Presiding Officers are also required to exercise caution when they
are dealing with matters relating to public property and public interest of which the
Courts of law are the final custodians. It is true that we have never leaned in favour of
giving of preferential treatment to the Government departments or agencies but then we
are equally obliged, while granting relief to ensure that public interest is not permitted to
be jeopardized and public property is not allowed to be squared through mere collusion of
some representative of a Government agency."
11. So, in these circumstances we are of the clear opinion that the im pugned judgment and
decree dated 09th March, 2011 has been obtained by practicing fraud upon trial Court and a
collusive decree was obtained. After drawing such conclusion the subsequent orders passed by
the trial Court and revisional Court lack legal subs tance, as such, the edifice built on such illegal
structure is bound to collapse. Therefore, the judgments and decrees dated 9th March, 2011, 19th
May, 2011 and 30th November, 2010 are liable to be set aside. We know normally a decree set
aside in conseque nce of proceedings initiated upon application under Section 12(2), C.P.C. the
suit revives, however, where the suit apparently lacks cause of action or is barred by any law, in
that case the remand or revival of suit does not serve any purpose. We would li ke to analyze the
suit plaintiff at the above stated touchstone. Admittedly, the property in dispute belongs to
Government of Balochistam and the case of plaintiff hinges upon an alleged and so called
allotment by the respondent No.2. Legally, no power ves ts in respondent No.2 to allot/transfer
the ownership of residential building to anyone including the plaintiff. Secondly, the respondent
No.2 has categorically denied the issuance of allotment to plaintiff. So, here the dispute is not of
temporary allotme nt between the two allottees but the controversy rests with regard to the
transfer of ownership by way of permanent allotment to plaintiff. The respondent No. 2 in its
categoric statement has specifically mentioned that no power is available to MBR to tran sfer the
ownership of property by way of allotment/transfer of residential building on permanent basis.
Moreover, during the course of arguments learned counsel for the private respondent could not
produce any law empowering SMBR to transfer the ownership of residential building belonging
to Government. There is no cavil to the legal proposition that powers exercisable by the
functionaries are creature of Statute, Rules, Regulation and in this respect no law, rule,
regulation, notification, bylaws were plac ed before us empowering the SMBR to make allotment
on permanent basis, therefore, we do not hesitate to hold that even if any allotment has been
made by SMBR that is without jurisdiction. Reliance is placed on the judgment titled as Zarai
Taraqiati Bank Lt d. v. Said Rehman and others reported in 2013 SCMR 642 (relevant at page -
655), wherein it was observed as under: --
"16.. The "rules" and "regulations" framed under any Act are meant to regulate and limit
the statutory authority. All statutory authorities or bodies derive their powers from
statutes which create them and from the rules or regulations framed thereunder. Any
order passed or action taken which is in derogation or in excess of their powers can be
assailed as ultra vires. Rules and regulations b eing forms of subordinate legislation do not
have substantial difference as power to frame them is rooted in the statute. Statutory
bodies are invariably authorized under the Act to make or adopt rules and regulations not
inconsistent with the Act, with re spect to such matters which fall within their lawful
domain to carry out the purposes of the Act."
12. The respondent No.2 has also denied the issuance of allotment in favour of private
respondent and in this respect an FIR was lodged against respondent No.1, for the sake of
argument the MBR has transferred the ownership of residential building to plaintiff even then
that is an order coram non judice, ab initio void and incapable to create any title in favour of the
plaintiff entitling the private respond ent to have had filed the instant suit. The basic suit was
incompetent within the meaning of Section 42 of the Specific Relief Act, as the plaintiff has got
no legal character and title to have had filed the suit and no cause of action does accrue to
plain tiff. The trial Court initially rightly rejected the plaint under Order VII Rule II, C.P.C. at
initial stage on this score alone. So in such view of the matter, remand of the case would not
serve any purpose and shall result in futility in view of peculiar , particular and exceptional
circumstances of this case. Reliance is placed on the judgment titled as "Haji Farmanullah v.
Latif -ur-Rehman reported in 2015 SCMR 1708 (relevant at page -1713), wherein it was observed
as under: --
"It is in very exceptional, special and extra ordinary circumstances where e.g. the plaint
does not disclose a cause of action or is barred under the law, that -while accepting the
application (under the provisions of section 12(2), C.P.C.) the court may also reject the
plaint or ev en dismiss the suit for want of jurisdiction, where the jurisdiction of the court
is clearly and undoubtedly barred under the law and there is no valid reason to revive and
ay the suit which the court otherwise has no jurisdiction to entertain and adjudica te upon.
In this context, it may be pertinent to mention that in appropriate cases of want of
jurisdiction, the court while accepting the application under section 12(2), C.P.C. may
order for the return of the plaint under Order VII, Rule 10, C.P.C. so tha t the matter is
tried by a court of competent jurisdiction."
For the forgoing reasons, the petition is accepted and the impugned order dated 09 -
03,2011, judgment and decree dated 19 -05-2011 and judgment and decree dated 30 -11-2010 are
set aside. Consequ ently, the suit filed by the plaintiff is rejected/ dismissed with no order as to
costs.
Before parting with the judgment, we feel it inevitable to issue directions to Senior MBR
to ascertain the status of all Public Buildings throughout the Province an d ensure that the said
buildings are safe and secure, no encroachment and permanent allotment transferring the
ownership has been made or would be made. Besides, the responsibilities of the delinquent
official should be fixed who failed to defend the publi c property during the pendency of Civil
Suit No. 12/2010. The result of action so taken shall be sent through Registrar of this Court for
our perusal in Chambers.
ZC/18/Bal Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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