2013 C L C 343
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanz ai, JJ
SECRETARY COMMUNICATION AND WORKS DEPARTMENT GOVERNMENT
OF BALOCHISTAN and others ----Appellants
Versus
DAD BAKHSH and another ----Respondents
Regular Second Appeals Nos.3 and 4 of 2007, decided on 27th September, 2012.
(a) Civil Procedure C ode (V of 1908) ---
----Ss. 79, 80, 82, O. III, R. 1, O. VI, R. 14, O. VIII, Rr. 3 & 5, O.IX, R. 6(1), O.XII, R.6, O.
XXVII, Rr. 3 & 8 ---Qanun -e-Shahadat (10 of 1984), Arts.117 & 119 ---Contract Act (IX of
1872), S.2 ---Suit against Provincial Government an d its officials for recovery of amount
spent by plaintiff, a contractor at the eve of visit of its senior officers ---Service of summons
upon official -defendants and filing of written statement signed by their counsel only and not
by them ---Non-specific den ial of plaintiff's claim by official -defendants in written statement
and their subsequent non -appearance in court resulted in passing of ex parte decree against
Government without recording evidence ---Auction of Government Rest House in execution
of ex par te decree and direction of Trial Court to hand over its possession to auction -
purchaser ---Ex parte decree and order in execution proceedings passed by Trial Court upheld
by Appellate Court ---Validity ---Record showed that suit was filed on 3 -3-1996 before Q azi at
Pasni, while next date for appearance of defendants including Secretary to Government at
Quetta was fixed as 5 -3-1996 i.e. only one day ---Record further showed that official -
defendants on subsequent dates had sought adjournments on behalf of Secreta ry without any
authority, which had been granted by Trial Court without ascertaining factum of due service
of summons upon Secretary or issuing him fresh summons ---Official defendants in written
statement had not admitted plaintiff's claim ---Trial Court ha d passed ex parte decree without
framing of issues and recording of evidence merely on the basis of plaint, whereas pleadings
could not take place of evidence in absence of testimony of its maker given on oath before
court ---Facts asserted in plaint were r equired to be proved by plaintiff ---Counsel could not
sign plaint and written statement ---Written statement of official -respondents signed only by
their counsel was against provisions of O.III, R 1 and O.VI, R. 14, C.P.C., thus, same could
not be treated a s valid ---Collusion between plaintiff and official -defendants was evident from
their failure to appear before court after filing written statement ---Court in case of possibility
of collusion between parties would not be bound to give judgment on the basis of their
admission ---Trial Court had passed ex parte decree on a date, which could not be treated as a
date of hearing, thus, same was without jurisdiction ---Drawing of decree by Trial Court
within 28 days was contrary to mandate of S.80, C.P.C. ---State pr operty could not be
auctioned in pursuant of a void decree ---Verbal direction of official -defendants would not
amount to a promise made on behalf of Government Department ---Plaintiff, if having spent
suit amount on verbal direction of official -defendants, could sue them in their private
capacity, but not the Government ---High Court set aside impugned judgments/decrees and
remanded case to Trial Court for its decision afresh after obtaining written statements from
defendants and framing issues ---High Court f urther directed the Secretary to Government to
fix responsibility of official -defendants for having played collusive role in such proceedings
and caused great financial loss to national exchequer.
Flight Lt. Anwarul Hasan Siddiqui v. Family Judge, Cou rt No.III, Karachi and 2
others reported in PLD 1980 Kar. 477 rel.
(b) Civil Procedure Code (V of 1908) ---
----O. VI, R. 1 ---Pleadings ---Evidentiary value ---Pleadings could not be read in evidence as
proof of contents thereof in absence of statement o f its maker given on oath before court ---
Principles.
Pleadings, plaint or written statement are not evidence by themselves and do not
prove the assertions made therein, rather the contents thereof have to be proved through
testimony given on oath and su bject to cross -examination by the other side. The pleadings,
which have not been confronted to the maker, are not sufficient to prove the contents of the
same and cannot be read in evidence as proof of the content stated therein.
Pleadings do not take the place of evidence.
(c) Civil Procedure Code (V of 1908) ---
----O. XII, R. 6 & O.XV, R. 1 ---Judgment passed on admission in case of possibility of
collusion between the parties --- Powers of Court ---Scope stated.
Where there is likelihood or pos sibility of collusion between the parties, the court
would not give judgment on the basis of their admission. Even in presence of specific,
unambiguous and categorical admission, it is discretion of the court whether to pass a decree
or refuse the same. Th e discretion should be exercised subject to qualification regarding
maintainability of the suit on legal and factual grounds.
(d) Civil Procedure Code (V of 1908) ---
----O. IX, R. 6 ---Ex parte decree passed on a date not fixed for hearing ---Validity ---Such
decree would be without jurisdiction ---Principles.
(e) Civil Procedure Code (V of 1908) ---
----Ss. 79, 80, 82, O. VIII, Rr. 3, 5, O. IX, R. 6(1), O. XII, R.6 & O.XXVII, Rr. 3 & 8 ---
Contract Act (IX of 1872), S.2 ---Suit against Provinc ial Government and its officials for
recovery of amount for additional work done by plaintiff -contractor on their verbal
directions ---Filing of written statement by official -defendants after service of summons upon
them ---Observations of Trial Cour t made in its interim order to the effect that document
annexed with plaint were photostat copies, which were not admissible evidence, thus suit
could not be decided without framing issues and recording evidence ---Subsequent non -
appearance of official -defendants in court resulted in passing of ex parte decree against
Government without recording evidence ---Auction of Government Rest House in execution
of ex parte decree and direction of Trial Court to hand over its possession to auction -
purchaser ---Ex parte decree and order in execution proceedings passed by Trial Court upheld
by Appellate Court ---Validity ---Trial Court in view of such admitted facts available on record
could not decree the suit without recording evidence ---Impugned decree was without
jurisd iction and a nullity in eye of law ---Record did not show issuance of even a single notice
to Secretary to Government, thus, impugned decree to that extent was without jurisdiction
and ab initio void ---Written statement of official -defendants signed on thei r behalf by their
counsel only could not be treated as valid written statement ---Official -defendants had not
admitted plaintiffs claim ---Plaintiff had not annexed with plaint either copy of tender called
or agreement or written order regarding additional w ork or certified/attested copies thereof ---
Photostat copies annexed with plaint were inadmissible in evidence ---Mere verbal direction
or order of defendants would not amount to a promise or condition in original agreement,
unless same was duly amended by a dding a fresh condition therein with approval of
competent authority ---Government would not be legally bound to pay suit amount in absence
of any such valid agreement ---Plaintiff, if having done additional work on verbal direction of
defendants without san ction of competent authority, could claim from them suit amount in
their private capacity ---State property could not be auctioned in pursuant to a void decree ---
Execution Court had adopted all coercive methods to compel defendants to make payment of
decret al amount and had auctioned State property on worthless price ---High Court set aside
impugned judgments/decrees and remanded case to Trial Court for its decision afresh after
obtaining written statements from defendants and framing issues ---High Court furt her
directed Secretary to Government to fix responsibility of official -defendants for having
played collusive role in such proceedings and caused great financial loss to national
exchequer.
Flight Lt. Anwarul Hasan Siddiqui v. Family Judge, Court No.I II, Karachi and 2
others PLD 1980 Kar. 477 rel.
(f) Civil Procedure Code (V of 1908) ---
----O. III, R.1 & O.VI, Rr.1, 14 ---Plaint or written statement signed only by counsel of the
party and not by party himself ---Validity ---Counsel could not sign pla int and written
statement ---Written statement signed by counsel of defendant and not by defendant could not
be treated as valid written statement for being against provisions of O.III, R.1 & O.VI, R.14,
C.P.C.
Flight Lt. Anwarul Hasan Siddiqui v. Fam ily Judge, Court No.III, Karachi and 2
others PLD 1980 Kar. 477 rel.
(g) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 76 & 85 ---Photostat copy of public document ---Not admissible in evidence.
(h) Civil Procedure Code (V of 1908) ---
----S. 2(2) ---Decree---Limitation ---Decree passed in violation of mandatory provisions of
law---Validity ---Such decree would be void ab initio and no limitation would run
thereagainst.
Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others
1987 SC MR 1543 rel.
(i) Administration of justice ---
----Initial order declared to be void and illegal ---Effect ---Whole superstructure built on such
order was bound to fall.
(j) Civil Procedure Code (V of 1908) ---
----S. 2(2) ---Void decree, execution of ---Scope ---State property could not be auctioned in
pursuant to such decree.
(k) Contract Act (IX of 1872) ---
----S. 2(e) ---Mere verbal direction or order would not amount to a promise or condition in
original agreement.
Amanullah Tareen, Addl. A. -G. for Appellants.
H. Shakil Ahmed and Zahid Muqeem Ansari for Respondents.
Date of hearing: 10th September, 2012.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. --- The appellants have preferred the
instant Regular Second Appeals (R.S.A.) No.03 and 0 4 of 2007 against the following orders:
R.S.A. No.03 of 2007:
Ex parte orders dated 9th May, 1996 and 10th March, 2004 (the "impugned ex parte
orders"), respectively passed by the Qazi, Pasni (the "trial Court") and the Majlis -e-Shoora,
Mekran at Tur bat (the "appellate Court"), (hereinafter both the Courts are collectively
referred to as the "Courts below"), whereby Civil Suit No.18 of 1996 filed by respondent
No.1 Dad Bakhsh son of Rodin on or about 3rd March, 1996 for recovery of an amount of
Rs.5,0 0,955 (Rupees five lacs nine hundred and fifty five only) against the petitioners was ex
parte decreed and the appeal filed by the petitioners was also dismissed. Moreover, according
to the decision of the trial Court, an amount of Rs.15,000 (Rupees fiftee n thousand only) was
also ex parte decreed in favour of respondent No.1 being the amount of court -fee.
Orders dated 10th March, 2003 and 23rd April, 2003 (the "impugned orders")
respectively passed by the Courts below, whereby the execution application filed by
respondent No.1 was accepted and the Rest House, Ormara (the "Rest House"), auctioned on
the directives of the executing Court, was ordered to be handed over to respondent No.2
Muhammad Din being the highest bidder and the appeal filed by the peti tioners was
dismissed.
R.S.A. No.4 of 2007:
Ex parte orders dated 31st March, 1996 and 18th September, 1996 (the "impugned ex
parte orders"), respectively passed by the Courts below, whereby the suit filed by respondent
No.1 Dad Bakhsh son of Rodin for recovery of Rs.37,58,005 (Rupees thirty seven lacs fifty
eight thousand and five only) against the petitioners was ex parte decreed and the appeal filed
by the petitioners was dismissed. Moreover, according to the decision of the trial Court, an
amount of Rs.15000 (Rupees fifteen thousand only) was a lso decreed in favour of respondent
No.1 being the amount of court -fee.
Orders dated 10th March, 2003 and 23rd April, 2003 (the "impugned orders")
respectively passed by the Courts below, whereby the execution application filed by
respondent No.1 was accepted and the Rest House, auctioned on the directives of the trial
Court , was ordered to be handed over to respondent No.2 Muhammad Din being the highest
bidder and the appeal filed by the petitioners was dismissed.
2. Since common questions of facts and law are involved in the matter, as such, we
propose to decide both the matters through this common judgment.
3. Precise facts, leading to file these appeals, are that on or about 3rd March, 1996,
respondent No.1 Dad Bakhsh son of Rodin instituted two Civil Suits Nos.17 and 18 of 1996
against the appellants i.e. Secretary, C ommunication and Works (C&W) Department,
Executive Engineer, Sub - Divisional Officer and Sub -Engineer, Building and Roads (B&R)
Department, Ormara District Gwadar for recovery of Rs.37,58,005 and Rs.5,00,955
respectively.
4. In Civil Suit No.17 of 1996, the respondent averred that he is a renown contractor of
district Gwadar and in the year 1994, he was awarded a contract for construction of Ormara
Basool road for an amount of Rs.10,00,000 (Rupees one million only), however, during the
course of construct ion, the design was altered and orally an additional work worth
Rs.40,00,000 (Rupees four million only) was awarded to him, which was completed by him
within the stipulated period on the verbal assurance and commitment made by appellants
Nos.2 and 3 i.e. E xecutive Engineer, Provincial B&R Division, Gwadar and Sub -Divisional
Officer, B&R Sub -Division Pasni Ormara. It was further averred that the appellants have
promised that they would obtain the approval of additional work from the competent
authority and w ill make the payment; however, the commitment has not been honoured.
5. Similarly, in Civil Suit No.18 of 1996, the respondent/plaintiff averred that being a
well-known and reputable government contractor of Gwadar, he was having good relations
with the appellants and he used to help them whenever the appellants requested so. By this
way, he used to make payments to the owner of a Filling Station, wherefrom appellants Nos.3
and 4 i.e. Sub -Divisional Officer B&R Sub -Division, Pasni and Sub -Engineer B&R Orm ara,
obtained oil and despite assurances, they did not make the payment. In the years 1993 and
1994, he also borne the entire expenses incurred during the course of visit of Chief Engineer
and Chief Minister Balochistan on the verbal instructions of appell ants Nos.3 and 4
respectively. He, from time to time, supplied different articles to appellants No.3 and 4,
however, whenever he approached for return of the aforesaid amounts, lame excuses
were made and despite assurances and promi ses, the amount so incurred/spent by him was
not returned.
6. It reflects from the impugned ex parte orders passed by the trial Court that appellants
No.2 and 3 were served with notices and it was presumed that appellant No.1 i.e. Secretary
C&W Departmen t was also served. It also appears that neither notice was served upon
appellant No.1, nor any alternate mode for service was adopted, however, he was proceeded
against ex parte and both the suits were decreed in favour of respondent No.1.
7. Mr. Amanull ah Tareen, learned Additional Advocate -General (A.A. -G.), inter alia;
contended that neither appellant No.1 was served in accordance with law, nor any substitute
mode of service was adopted before proceeding him ex parte and even if it is presumed that
appellant No.1 was served through appellants Nos.2 and 3, the Executive Engineer of the
concerned district could not have been equated or termed a valid service of summons upon
appellant No.1, which, thus, rendered the impugned ex parte orders as void and nul lity in the
eyes of law, therefore, the limitation, in preferring appeals, beyond the period of limitation,
was/is condonable and would not result in non -suiting the appellants on the ground of
limitation. He further submitted that since ex parte decrees w ithout recording evidence were
passed, therefore, the same could not be sustained being illegal and void. He lastly contended
that the Courts below have erred in law by deciding the disputed facts of the case on the basis
of pleadings of the parties withou t framing of issues and recording the evidence, especially
when the claim of respondent No.1 was specifically denied by appellants No.2 and 3 in their
written statements.
8. Mr. Zahid Muqeem Ansari, learned counsel for respondent No.1, contended that the
appeals are not maintainable being filed after the prescribed period of limitation. He further
submitted that appellant No.1 was well aware about the instant litigation, as he participated in
the execution proceedings and made admission and gave assurance s for payment of decretal
amount. He lastly contended that appellants Nos.2 and 3, being the defendants in both the
suits, filed their written statements, but nowhere they denied the claim of respondent No.1
specifically within the purview of Order VIII, R ules 3 of the Civil Procedure Code, 1908
(C.P.C.), therefore, the appellants are not entitled for any relief.
9. From bare perusal of pleadings, it is noted that the allegations/ averments are
verbatim. It is also noted that the allegations levelled agai nst the appellants were with regard
to the supply of certain articles, expenditure incurred by respondent No.1 on the eve of visits
of Chief Engineer and Chief Minister as well as awarding of additional work. These facts
could have been proved only by prod ucing evidence showing that the appellants were
responsible for payment of alleged amount, but instead of recording ex parte evidence, the
Courts below in their wisdom thought it fit that there was no need to record ex parte evidence
without specifying as to why there was no need for recording ex parte evidence and how the
allegations, which were questions of fact would be proved without recording ex parte
evidence.
10. It is well -settled by now that according to Article 119 of the Qanun -e-Shahadat Order
1984, (the "Order"), a person, who asserts/ alleges a particular fact and wants the court to
believe that such fact exists, would be required to prove existence of such a fact, unless onus
is fixed by law on a particular person. Similarly, accordi ng to Article 117 of the Order,
the party has to prove the whole of the facts, which he alleges to entitle him to a judgment.
Furthermore, pleadings, plaint or written statement are not evidence by themselves and do not
prove the assertions made therein, rather the contents thereof have to be proved through
testimony given on oath and subject to cross -examination by the other side. The pleadings,
which have not been confronted to the maker, are not sufficient to prove the contents of the
same and cannot be read in evidence as proof of the contents stated therein.
11. The record further reflects that the ground, prevailed upon the trial Court, while
deciding the suits, is that no specific denial was made by appellants Nos.2 and 3 in their
written statement . There is no admission at all. The trial Court committed material
irregularity and travelled beyond the scope of Order VIII, Rules 3 and 5 of the C.P.C. The
trial Court has passed the orders merely on the basis of plaint and seems to be ignorant of the
settled legal proposition that pleadings do not take the place of evidence. It is also a settled
proposition of law that when there is a likelihood or possibility of collusion between the
parties, the Court would not give judgment on the basis of their admis sion. Even in presence
of specific, unambiguous and categorical admission, it is discretion of the Court whether to
pass a decree or refuse the same. The discretion should be exercised subject to qualification
regarding maintainability of the suit on legal and factual grounds. The Court should satisfy
itself prior to passing of a judgment about the nature of the admission. No doubt, in this case,
appellants Nos.2 and 3 did not make admission about the claim of respondent No.1, except
for Rs.16,517 (Rupees s ixteen thousand five hundred and seventeen only). The collusion
between the plaintiff and defendants Nos.2 and 3 is also evident from the fact that the then
Executive Engineer and Sub -Divisional Officer, after appearance in the trial Court at the first
date of hearing, avoided appearance and remained absent, which resulted the auction of
government rest house.
12. The perusal of record reflects that the proceedings right from very inception was
conducted illegally. Similarly ex parte judgments/ decrees, t he order made by the Executing
Court inclusive of the appellate judgments/decrees and orders have been rendered in sheer
violation of mandatory provision of law, therefore, are without lawful authority. Civil Suits
Nos.17 and 18 of 1996, though as per the plaints appear to have been presented on 11th
February, 1996 but as per the order sheets the suits were filed on 3rd March, 1996 and the
next date for appearance of defendants was fixed March, 1996. Appellant No.1, resides at
Quetta. How for it was possibl e for defendant No.1 to appear before Qazi, 'Pasni' after one
day. On 5th March, 1996 defendant No. 2 at his own, without any authority requested for
adjournment and the trial Court without ascertaining the factum of due service upon
defendant No.1 afforde d an opportunity without issuing notice to defendant No.1. On the next
date of hearing i.e. 14th March, 1996 once again a request (without authority) was made by
appellant No.3 (defendant No.3) on behalf of appellant No. 1, which was allowed subject to
cost of Rs.500 (Rupees five hundred only) and on 24th March, 1996 appellant No.1 was
proceeded against ex parte without notice and service. It is pertinent to note that the date i.e.
24th March, 1996, as mentioned herein above can never be treated as a date o f hearing within
the meaning of term "hearing" as contemplated by C.P.C. nor for that matter the trial Court
was competent to have proceeded ex parte against defendant No.1. Similarly, the nature of
subsequent proceedings would reveal that the said dates c ould not be treated as date of
hearing. For ready reference order dated 28th March, 1996 is reproduced:
13. So on the same analogy, the impugned judgment/decree passed on such a date is
without jurisdiction. Besides, in view of the clear provisions of Or der IX, Rule -6 sub -clause
(c), which are mandatory in nature and direct for issuance of fresh notice. For ready reference
the same is reproduced herein below: ---
"When summons served, but not in due time --- (c) If it is proved that the summons
was served on the defendant, but not in sufficient time to enable him to appear and
answer on the day fixed in the summons, the Court shall postpone the hearing of the
suit to a future day to be fixed by the Court, and shall direct notice of such day to be
given to the defendant".
So the edifice of the plaintiff's case built on 24th March, 1996, in view of above stated
facts is bound to collapse and fall because there was no occasion for the trial Court to have
proceeded ex parte against appellant/defend ant No.1. Moreover; the decree was drawn within
the span of 28 days which is contrary to the mandate of the section 80, C.P.C.
14. Now adverting to Civil Suit No.18 of 1996, it is interested to note that besides visible
infirmities and illegalities in th e plaint, the trial Court vide order dated 31st March, 1996
concluded that the suit cannot be decided on the basis of available record, as all the
documents annexed with the plaint are photostat copies and inadmissible in evidence. For the
sake of convenie nce operative portion is reproduced:
15. In view of such findings, despite ex parte proceedings against respondent No.1, there
was no occasion for the trial Court to have decreed the suit ex parte on 9th May, 2006
without recording evidence. S o we feel no difficulty in holding that the ex parte
judgments drawn by the trial Court are absolutely contrary to the admitted facts available on
record. In view of glaring irregularities and illegalities, the decrees were beyond jurisdiction
and, a nullity in the eye of law, as such, un -executable. But to the contrary, the appellate
Court dismissed the appeal on flimsy grounds besides by holding that appeal in Suit No.18 of
1996 is barred by time. Needless to observe that the learned counsel for the appellant has
confirmed the fact that the rest house is in the same condition as was delivered to him
pursuant to auction.
16. It is important to note that up to passing of decree not a single summon was served
upon appellant No.1. This order to the extent of proceeding ex parte against the
appellant/defendant No.1 is absolutely without jurisdiction and ab initio void.
17. The suits were decreed on the basis of pleadings of parties without framing of issues
and recording of evidence on the so -calle d assumption that the claim has been admitted in the
written statement filed by defendants Nos.2 and 3. The written statements so filed could not
be treated as valid written statements because the same are contrary to the mandate of Order
III, Rule 1 and O rder VI, Rule 14, C.P.C. The written statements were signed by the
counsel and not by defendants Nos.2 and 3. The law on the subject is settled that the
counsel cannot sign plaint and written statement. Reliance is placed on the judgment titled as
Flight Lt. Anwarul Hasan Siddiqui v. Family Judge, Court No. III, Karachi and 2 others
reported in PLD 1980 Karachi page 477: --
"The power of an Advocate, of course, does not mean or include the power to sign a
plaint or written statement by him for and on behalf of his client".
18. Secondly, without prejudice to above stated legal position, the claim was absolutely
denied in the written statement except for Rs.16,517. In this respect paras Nos.2 and 3 of the
Suit No.17 of 1996 as well as paras Nos.1, 2, 3, 6 and 10 of the written statement are
reproduced herein below: ---
Paras Nos.2 and 3 of plaint:
19. Apart from the legal errors committed with respect to procedure of trial,
factually the trial Court mistreated/misled itself by ho lding that the claim has been
admitted. The judgment on the basis of admitted facts is contrary to record.
20. The perusal of para No. 2 of plaint reflects that main claim of the plaintiff/respondent
is that the appellant No. 2 has awar ded an additional work for Rs.40,00,000 (Rupees forty
lacs only) but neither any tender was invited nor any agreement has been executed. No
written order to this effect has been placed on record. Needless to observe that not a single
certified or attest ed document was annexed with the plaint. All the annexures were
photostat copies which were not admissible in evidence. Under such circumstances, there
was no occasion for the trial Court to have entertained the claim on such flimsy grounds. The
origi nal work was for Rs.10,000,00 (Rupees ten lacs only). The assertion of extension of
work for Rs.40,00,000 (Rupees forty lacs only) is absurd, preposterous and beyond
comprehension.
21. There is no cavil to the legal proposition that a decree drawn in utt er violation of
mandatory provision of law is void ab initio and no limitation runs against such decree.
Reliance is placed on the judgment titled as Malik Khawaja Muhammad and 24 others v.
Marduman Babar Kahol and 29 others reported in 1987 SCMR 1543, relevant at page 1544.
Relevant observations therefrom are reproduced herein below: ---
"As respects the question of limitation, the learned High Court found that the
decree in the suit having been passed in utter contravention of the mandatory
provisions of law, such order was a nullity against which no limitation could run".
Similarly, during the course of execution proceedings the Executing Court violated the law
and adopted the course which is never allowed by law. Al l coercive methods were adopted to
compel the appellants to make the payment in pursuance of decrees, which were nullity in the
eyes of law. For the sake of convenience the attachment order is reproduced: ---
22. Now adverting to the submissions made by M r. H. Shakil Ahmed, learned counsel for
respondent No.2, who maintained that Muhammad Din son of Ibrahim is a bona fide
purchaser, his rights are protected under the law, is also without any substance, as it is settled
principle of law that if the initial order is declared void and illegal then the whole structure
created thereon is bound to fall. It is important to note that while going through the record at
page -170 the capital cost for the construction of B&R Rest House, Ormara incurred was
Rs.44,89,350, whereas the cost of land is not included. It is painfully observed that the State
property worth of billions of rupees was auctioned on worthless price, which apparently was
an act of collusion between plaintiff, the auction -purchaser and defendants Nos.2 and 3. The
Executing Court failed to understand that the State property cannot be auctioned pursuant to a
decree, which is nullity, void and non -existent. As per claim of respondent No.1 the
appellants Nos.2 and 3 verbally agreed to pay the expenses to be incurred for additional work
as well as expenditure made by him at the eve of visits of Chief Minister and Chief Engineer
etc. We are of the considered view that the verbal direction would not amount a condition to
the agreement under which the work was a ccomplished unless the agreement is duly
amended by adding any fresh condition with approval of the competent authority. In absence
of any such agreement, the government would not be under any legal constraint to pay the
said amount because mere verbal ord er of the appellants would not amount to promise made
on behalf of the government department, unless it is duly made in writing and sanctioned/
accorded by the competent authority. If any officer of the department verbally passed the
direction without sanc tion of the competent authority, it is within the right of respondent No.1
to claim such amount in his private capacity, but not being an officer/official in his official
capacity. The record also reflects that at the relevant time, Mr. Abdul Majeed Shah a nd Mr.
Munir Ahmed Baloch were holding the charge of Executive Engineer and Sub -Divisional
Officer B&R Department, thus, respondent No.1 is at liberty to file a suit for recovery of the
alleged amount incurred by him at the eve of visit of Chief Minister a nd Chief Engineer
against them in their private capacity.
23. Resultantly, we are inclined to accept R.S.A. Nos.3 and 4 of 2007 and set aside the
impugned judgments and decrees passed by trial Court i.e. Qazi Pasni, appellate Court i.e.
Majlis -e-Shoora M ekran at Turbat and orders passed by executing Court i.e. Qazi Pasni and
Majlis -e-Shoora during execution proceedings are hereby set aside. Both the suits are
remanded to the trial Court with the direction to obtain written statement from appellants and
thereafter to frame proper issues and decide the case by adhering to the provisions of Order
XIV, Rule 2, C.P.C. Consequent upon setting aside of the judgments and decrees mentioned
hereinabove, the Deputy Commissioner Gwadar is directed to take possession o f B&R Rest
House Ormara from Din Muhammad son of Ibrahim (auction -purchaser) and deliver the same
back to the appellant No.1 within a period of one month positively from the receipt of date of
this judgment and mutation entries carried out in favour of bid der i.e. respondent No.2 are
hereby cancelled and the earlier mutation entries carried out in favour of Government of
Balochistan are hereby restored. Necessary correction in the revenue entries in the light of
this judgment be made.
24. Before parting w ith the judgment, we considered it necessary to reiterate that the
frequency, with which cases are coming up, wherein the government officials are found to be
obliging the parties with regard to their illegal claims and the matters wholly unconcerned
with their job descriptions for erroneous considerations. We are in agreement with the learned
A.A. -G. that the entire process initiated by respondent No.1 with collusion of the then
Executive Engineer and Sub -Divisional Officer (B&R) department smacks of mala fides,
fraud and misrepresentation, besides lacking legal sanctions. The respondent No.1 is directed
to fix the responsibility of all the delinquent officers who have played a collusive part in the
proceedings and have caused great financial loss to the Na tional Exchequer. The Registrar of
this Court to send copy of the instant judgment to the Chief Secretary, Government of
Balochistan as well as Deputy Commissioner, Gwadar with the direction to ensure
compliance of the directions against the delinquent off icers by taking positive action, of
course by providing fair opportunity to them. The result of action, so taken by him should be
submitted for our perusal in chamber.
25. The appeals are, accordingly, disposed of on above terms. Decree sheet be drawn.
Parties are left to bear their own costs.
SAK/103/Q Order accordingly.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,
let us know.