1996 S C M R 1217
1996 S C M R 1217
[Supreme Court of Pakistan
Present: Zaffar Hussain Mirza and Abdul Hafeez
Memon, JJ
HAZRAT KHAN---Petitioner
versus
AMANULLAH KHAN and others---Respondents
Civil Petitions for Leave to Appeal Nos.855-K
arid 856-K of 1989, decided on 28th March, 1994.
(On appeal from the judgment of the .Sindh High
Court; dated 9-10-1989, in R.A.143 of 1989).
(a) West Pakistan
Motor Vehicles Ordinance (XIX of 1965)---
----S. 50---Civil Procedure Code (V of 1908),
0.1, R. 10 & O.VII, R. 11---
Constitution of Pakistan
Karamat Hussain v. M_st. _ Fatima and others
1969 SCMR 256 and Zakira Begum and others 1986 CLC 2410 (2) rel.
(b) Civil Procedure Code (V of 1908)---
----O.XXXIX, Rr. 1 & 2---Constitution of Pakistan
Muhammad Ali Shaikh, Advocate Supreme Court and
Faizanul Haq, Advocate-on-Record for Petitioner.
Zahoorul Haq, Advocate Supreme Court and M.S.
Ghaury, Advocate-on-Record for Respondents.
Dates of hearing: 20th and 21st March, 1990
ORDER
ZAFFAR HUSSAIN MIRZA, J:---We propose to dispose of these two petitions by
a common judgment as they arise out of the proceedings of the same suit and are
between the same parties.
The facts are that respondent Amanullah Khan
filed a F.C. Suit No. 164 of 1989, against the Province
of Sindh , Regional Transport
Authority, Karachi and Regional Transport
Authority, Hyderabad
It is, important to note that the petitioner was
not impleaded as defendant in the suit. However, the grievance of respondent
No.1 was that his vehicles on reaching Hyderabad
from Karachi , are not being provided with fixed
timing for leaving Hyderabad for Karachi on their return journey, although departure timing
from Karachi Hyderabad
hereinafter referred to as the R.T.A., Hyderabad Karachi
intimated their decision, refusing to allot return journey timing from Hyderabad to Karachi
In the events that happened the Trial Court
while deciding the injunction application came to the conclusion that the suit
was not maintainable and accordingly rejected the plaint under order VII, rule
11, C.P.C. by its order, dated 30th May, 1989.
Being aggrieved respondent No.1 preferred an
appeal before the District Judge, Hyderabad Hyderabad
On 30th August, 1989, the learned District Judge
accepted the appeal of respondent No.1 and reversed the order of rejection of
the plaint, remanding the suit to the original Court for trial. So far as
application under Order XXXIX, rules 1 and 2, C.P.C. pending before him is
concerned, he allowed the prayer "till a fresh order is passed by the
learned lower Court^. On the same date by a separate order the learned District
Judge dismissed the application of the petitioner under Order I, rule 10,
C.P.C. "as in fructuous".
Against the aforesaid judgment of the learned
District Judge, dated 30th August, 1989, and the order passed by the learned
District Judge on the same date on the petitioner's application, the petitioner
filed separate civil revisions in the High Court of Sindh.
Civil Revision Petition No.143 of 1989 arose out
of the judgment passed in appeal by the learned District Judge, whereas Civil
Revision No. 144 of 1989, arises out of the order passed by the learned
District Judge on the application of the petitioner under Order I, rule 10,
C.P.C.
As both these civil revisions were dismissed by
a learned Single Judge by separate orders, dated 9th October, 1989, the
petitioner has brought these two petitions for leave to appeal therefrom.
When these petitions were taken up for hearing
on 20th March, 1990, Mr. Muhammad Ali Shaikh, Advocate, appeared on behalf of
the petitioner and Mr. Zahoorul Haq, Advocate, appeared on behalf of the
caveator/respondent. As short questions of law were involved in the case, both
parties were agreed to argue the whole case and if necessary consented that the
petitions may be converted and disposed of as appeals. Thereafter, they were
heard at length on 20th March, 1990. In Civil Revision No. 143 t) f 1989 it was
urged on behalf of the petitioner that the learned Senior Civil Judge after
holding that cause of action if any arose to respondent No. l at Karachi, was
not competent to pass any other order but to return the plaint under Order VII,
rule 10, C.P.C. In this connection the learned Single Judge observed:
"There is force in this contention.
However, Mr. S. Masood Ali challenged the view of the Senior t;ivil Judge to
the effect that her Court at Hyderabad had no jurisdiction and referred to
section 20 of C.P.C. where it is mentioned inter alia that a Court within the
jurisdiction of which any of the defendants lives or works for gain can have
jurisdiction in the matter. Mr. Masood Ali made grievance of the fact that
learned Senior Civil Judge did not hear him before passing the impugned order.
However, Mr. S. Masood Ali was heard at length by the learned District Judge
and it appears from the order of learned District Judge that Mr. S Msood Ali did not challenge in appeal the
finding of the Senior Civil Judge to the effect that the action if any arose to
the respondent No.1 at Karachi
]In my view learned District Judge acted
correctly in setting aside the order about rejection of the plaint, because
such an order was ultra vires and without jurisdiction in presence of finding
of learned Senior Civil Judge that the cause of action if any arose at Karachi
and not within the limits of her Court. "
Further, after referring to case-law the learned
Judge observed:
"One may not take exception to competency
of a Court to reject the plaint, but a Court lacking jurisdiction cannot take
such a step, as in such a situation its own order would be ultra vires. Same
was the situation in the instant case where the Trial Court took view that the
cause of action if any arose at Karachi and not within her jurisdiction.
Consequently, the only course left for the Trial Court was to return the plaint
under Order VII, rule 10 of C.P.C."
Notwithstanding the view as expressed in the
extract from the judgment reproduced above, the learned Judge declined to set
aside the judgment of the learned District Judge, with the observation as
under:
"The Trial Court has to return the plaint
if it .is of the view that it has no jurisdiction in the matter. If the Trial
Court has no jurisdiction in the matter then learned District Judge cannot
issue an order of mandatory injunction as an appellate authority and his order
would also be without jurisdiction. With these observations I (sic) of this
revision application."
Learned counsel for respondent submitted that
the learned Judge in the High Court has left the question of the jurisdiction
to try the suit to the Trial Court before which the suit stands remanded. It
will be for the Trial Court to reconsider the matter and return the plaint if
it is of the view that it has no jurisdiction in the matter.
Learned counsel for the petitioner has no
objection if the question is reconsidered by the Trial Court but his main
grievance is that by maintaining the order of the District Judge the learned
Judge in the High Court also permitted the temporary injunction issued by the
District Judge in his judgment disposing of the appeal, to remain operative to
the prejudice of the petitioner. He submitted that in an appeal under section
96, C.P.C. from the order' of rejection of plaint, the learned District Judge
was not competent to grant an ad interim temporary injunction under Order
XXXIX, rules 1 and 2, C.P.C.
So far as Civil Revision No.144 of 1989 is
concerned the grievance of the learned counsel for the petitioner was that the
learned Single Judge erred in refusing to order the joinder of the petitioner
as a party in the suit in spite of the finding that in the event of the suit
filed by respondent No. l being decreed, the petitioner's right• would be
affected, and therefore, he was a necessary party in the suit. In this
connection learned counsel referred to the following passage from he judgment:
"There can be no denial of the fact that if
respondent No. 1 is granted declaration, which he seeks, then it will have
effected on the petitioner whose buses are said to be plying at the Super High
Way and whose buses timing of departure are the same which are claimed by the
respondent No. 1. Hence the petitioner was a necessary party in the suit and he
should have moved the Trial Court for being impleaded as a party."
The learned Judge was, however, of the view that
impleading of the petitioner as party in appeal would create complications and
in this view of the matter upheld the order passed by the learned District
Judge.
Mr. Zahoorul Haq on the other hand supported the
order of the learned District Judge and argued that the petitioner had failed
to bring any evidence on record to show that he was the owner of any buses
plying on the Hyderabad Karachi route via Super Highway.
The learned Advocate-General who was present on
Court notice was also heard. He submitted that the matter with regard to the
fixation of timing of stage carriages was regulated by section 50(2) of the
Motor Vehicles Ordinance, 1965 and Rules thereunder. He further submitted that
the learned Judge in the High Court ought to have set aside the order of
injunction granted by the learned District Judge, as the said order has the
effect of throwing the timing of the various buses info disarray, of which
respondent No.1 was taking benefit: He was also of the opinion that in
appellate jurisdiction the learned District Judge could not pass an interim order
when he was remanding the suit to the Trial Court. .
After having taken into consideration the
arguments of the learned counsel, we feel that it will not be proper for us, at
this stage to determine the question whether the petitioner owns any buses
which ply on the Hyderabad Karachi route as it seems that he holds a rout
permit. It was submitted before us, that the permit holders take buses from
other on lend and lease basis. This will be a question for determination at the
trial stage. However, in view of the opinion expressed by the learned Single
Judge we feel that having come to the p, conclusion that the petitioner was a
necessary party,- the learned Judge ought to have passed orders directing him
to be joined as a party. We are unable to appreciate what complications would
have been created if the petitioner was joined as a party in appeal. It seems
the attention of the learned Judge was not invited to the rule laid down by
this Court in Karamat Hussain v. Mst. Fatima and others (1969 SCMR 256), to the
effect that the introduction of the plaintiff or the defendant for one stage of
a suit is an introduction to all stages. It was held in that case that
substitution in appeal, even that from an interlocutory order was in the same
proceedings, and therefore, once the legal representatives of a deceased party
had been brought on the record they were on the record for all purposes.
Although this principle was laid down in connection with the substitution of
the legal representatives of a deceased party to a suit, it is equally
applicable to the joinder of a party at appellate stage under Order 1, rule 10,
C.P.C., because the appeal is a continuation of the proceedings of the suit. A
learned Judge of the Lahore High Court in Zakira Begum. etc. v. Aziz Ahmad,
etc. (1986 CLC 2410 (2)) applied this principle in Constitutional jurisdiction
to correct a revisional order passed by the District Judge. We are, therefore,
of the opinion that the petitioner's application under Order I, rule 10, C.P.C.
ought to have been allowed by the learned Single Judge which would have endured
for the purpose of the suit in consonance with the principle laid down in the
cited decision of this Court.
So far as Civil Revision No,143 of 1989 is
concerned as already stated the only grievance of the petitioner is that ad
interim order of injunction should not have been passed by the learned District
Judge which ought to have been set aside by the learned Single Judge. It
appears to us that the effect of the order is that, as explained by the learned
Advocate-General, the relevant authorities must give effect to the timing
prescribed by the Court in its order. There appear no reasons in the order of
the District Judge for having adopted this extraordinary course, to grant ad
interim injunction when he was remanding the case to the Trial Court, Having
disposed of the appeal, we see no reason why the District' Judge felt it just
and reasonable to issue orders of temporary injunction himself. He should have
left the matter to the Trial Court before which the suit stood remanded. The
effect of the order passed by the learned Single Judge was indeed to bless the
order of temporary injunction as well, for which we see no justification at
this stage. Without, therefore prejudicing any party,, we are of the opinion
that the learned Single Judge should have modified the judgment and order of
the learned District Judge by setting aside the order of temporary injunction
contained in the judgment.
In the result and for the foregoing reasons we
convert these two petitions and dispose them of as appeals. In appeal arising
out of Civil Petition for Leave to Appeal No.855-K of 1989 wd modify the
judgment and order passed by the learned Single Judge to the extent that the
revision of the petitioner is accepted in respect of the order of temporary
injunction passed by the learned District Judge, which is set aside. With this
modification the appeal is dismissed. It will be open to the Trial Court to
pass orders on the application for temporary injunction in accordance with the
law.
So far as the appeal arising out of Civil
Petition for Leave to Appeal No.856-K of 1989, the same is allowed and the
order passed by the learned Single Judge is set aside. The petitioner's
application under Order I, rule 10, C.P.C. stands allowed and he is directed to
be joined as the defendant in the suit. Necessary amendment shall be effected
in the plaint by the Trial Court and proceedings taken thereon in accordance
with law.
The appeals are disposed of in these terms.
A.A./H-228/S Appeals disposed of.
Comments
Post a Comment