2015 M L D 1461

2015 M L D 1461

[Sindh]

Before Hasan Feroze, J

ROSHNI TELEVISION, Messrs Direct Media Corporation (Pvt.) Ltd.---Appellant

versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman and others---Respondents

M.A. No. 52 of 2010 and C.M.A. No.2426 of 2014, decided on 30th May, 2014.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002), Ss.19 & 30-A---Issuance of license---Judgment and decree, setting aside of---Object and scope---Appeal filed by respondent was disposed on the offer made by Pakistan Electronic Media Regulatory Authority (PEMRA) to restore approval of television channel subject to deposit of Rs.5.7 million, however Authorities in application under S.12(2) C.P.C., assailed the order---Validity---Justice required that every cause once tried and finally adjudicated upon by competent forum must be deemed to be conclusive and binding on litigants and parties deriving title from them---Proceeding under S.12(2) C.P.C. was in the nature of declaratory suit, seeking declaration to the effect that decree passed by civil Court was result of fraud and misrepresentation and it was duty of Court to see whether same had been obtained by misrepresentation or fraud---Both the parties were agitating their respective claims as respondent claimed to have been deprived of his lawful and constitutional rights to acquire licence on the other hand PEMRA was asserting on technicalities more specifically on raising of its objection on audit report---Adjudication of main appeal challenging order of PEMRA could bring the controversy to its logical end---High Court directed appeal in question to come up for hearing on its original position---Application was allowed in circumstances.

            AIR 1978 All. 313; 2001 SCMR 1984; 1999 SCMR 1714; 2006 YLR 641; 2001 SCMR 46; 2000 SCMR 296 and 1999 SCMR 1696 ref.

            2004 CLC 1427; 1969 SCMR 306; 1998 SCMR 1462 and PLD 1973 SC 236 rel.

            Appellant in person.

            Kashif Hanif for Respondent No.1.

            Date of hearing: 23rd May, 2014.

ORDER

            HASAN FEROZE, J.---By this order I would like to dispose of the application in hand under section 12(2), C.P.C. which has been moved on behalf of PEMRA, the respondent No.1 in Miscellaneous Appeal under section 30-A of PEMRA Ordinance 2002 (as amended 2007) with a prayer to recall order dated 6-3-2014 whereby upon non-controvert by the counsel for this respondent/PEMRA the appellant has offered to deposit Rs.5700,000 the appeal was disposed of and the PEMRA Authority was directed to restore the approval of Roshni Television. According to the respondent No.1 the said order was obtained through misrepresentation and it was further prayed to this court to restrain the compliance of the said order dated 6-3-2014 till the disposal of aforesaid miscellaneous appeal on merits. This application is supported by an affidavit of Wakeel Khan, the General Manager (Licensing) of the respondent No.1 wherein it has been stated that the respondent No.1 is a body corporate established under section 3 of the PEMRA Ordinance, 2002 (Ordinance XIII of 2002) and under the said law is charged with the regulation of the establishment of all broadcast media and distribution services including satellite T.V. channel and cable television stations in Pakistan established for the purpose of international, national, provincial, district, local or special target audience and that by virtue of section 19 the PEMRA Authority has the exclusive right to issue licenses for the establishment and operation of all broadcast media and distribution services and under sub-clause 2 of section 19 no person was allowed to engage in any broadcast media or distribution service except after obtaining license under the PEMRA Ordinance, 2002.

            As per preliminary facts the appellant had applied for the grant of Satellite T.V. license in the year 2006, the matter remained unrealized for want of security clearance by the Ministry of Interior as required under the PEMRA laws. Consequently, appellant had filed the constitutional petition and vide order 24-2-2009 this court had directed the PEMRA to communicate to appellant relevant deficiencies and thereafter decide their application within a period of two weeks on merits. Further vide orders dated 20-3-2009, 3-4-2009 and 22-4-2009 further time was allowed to comply the order dated 24-2-2009 but appellant's application could not be decided within given time as the audit reports filed by the appellant were stated to be not as per law and no response was received from the Ministry of Interior. In compliance of the order dated 24-2-2009 the PEMRA issued letter to the appellant bearing No.N-10-2(61) STV-2006 dated 27-2-2009 asking him to provide the documents as regards tax return of company for two latest consecutive years, audit report of the company for two latest consecutive years and documentary evidence i.e. bank statement of the company/ directors to support the project cost of Rs.49.93 Million. Appellant in response to above letter provided to PEMRA audited accounts copies and chartered accountant report and same audited report and statement of accounts prepared by Shakir Baig and Company, Chartered Accountants with the statement dated 20-3-2009 in C.P.D. 2159 of 2008. Nevertheless, their license application was refused vide letter dated 29-4-2009. Appellant then filed contempt application against the Chairman PEMRA inter alia on the ground taken in the said application and thereupon the Chairman PEMRA was ordered to make appearance on 28-5-2009 in person and to show cause as to why contempt proceedings should not be initiated against him. The Chairman PEMRA then made appearance and tendered his unconditional apology for delay in decision and undertook to withdraw the said letter dated 29-4-2009 as regards rejecting the application of appellant. The said contempt application/petition was disposed of with direction to PEMRA to explain the deficiencies and it was directed to PEMRA not to reject license application on some hyper-technical grounds or on the basis of vague reasons and in case any clarification regarding deficiencies is required, the PEMRA Authority is to communicate the same to the appellant and afford them another opportunity to clarify its position, thereafter, final decision is to be taken and such exercise to be completed within forty five days. Appellant was informed regarding deficiencies in their application vide letter dated 4-6-2009 and matter was also taken up by the Chairman PEMRA with the Secretary, Ministry of Interior for urgent disposal. Consequently, Ministry of. Interior issued security clearance in the name of Messrs Direct Media Corporation (Pvt.) Limited. Revised Audit Reports filed by the appellant were also forwarded to the Chartered Accountant i.e. M/s. Shakir Baig and Company for verification through Letter No. 10-2/61/STV-2006 dated 29-6-2009 but to no response yet the PEMRA approved the grant of license to the appellant on 3-7-2009 in its 55th Meeting and the appellant was required to deposit the requisite license fee at prevailing rates for issuance of license, however, they filed appeal under rule 23 of PEMRA Rules 2002 before the Authority/ PEMRA claiming that they were entitled to the grant of license on ,previous rates at their application. In the meantime Messrs Shakir Baig and Company had informed that the audit reports were forged and they had never conducted audit of appellant and in the result show cause notice dated 13-8-2009 to the appellant company requiring them to show cause and the said scenario the appellant was called for personal hearing and then in its 57th Meeting the decision was made whereby it was decided to withdraw the approval granted to Messrs Director Media Corporation (Pvt.) Limited and being aggrieved the captioned appeal was filed and during the course of proceedings order dated 6-3-2009 was passed to which reads:--

            'This appeal arises against the order dated 7-12-2009 conveyed to the appellant whereby approval granted to Messrs Direct Media Corporation (Pvt.) Limited for award of Satellite T.V. Channel Liscense withdrawn. Learned counsel for respondent No.1/PEMRA Mr. Nawab Khan is also present.

            Appellant Ali Raza, CEO has filed statement dated 27-2-2014 contending that Satellite T.V. License in the name of 'ROSHNI NEWS' was approved on 7-7-2009 whereby the appellant was required to deposit Rs.5700,000 as T.V. License Fee. However, the said amount could not be deposited and he has challenged the said order through this appeal. The appellant is now willing to deposit the said amount in favour of PEMRA / Respondent No.1 and prays for disposal of main appeal in terms of his offer to deposit of Rs. 5700,000 within 15 days and also seeks revival of letter dated 7-7-2009 for approval of Satellite T.V. License in favour of T.V. Channel Roshni.

            Learned counsel for the respondent No.1/ PEMRA however, has not controverted the offer made by the appellant subject to the payment within 15 days whereafter the payment so made the approval of ROSHNI be restored accordingly.

            In view of statement of appellant M.A. No.52 of 2010 alongwith listed applications stands disposed of'.

            Instant application under section 12(2), C.P.C. has been moved and pressed in the above background to which has been resisted on behalf of the appellant by filing counter affidavit by Ali Raza Khimji Gowa, CEO of Messrs Direct Media Corporation (Pvt.) Limited wherein among others stand has been taken to the effect that as per PEMRA Rule 11(5) case should be decided by PEMRA within 100 days of receipt of the application and that PEMRA is only authorized to do communication to the Ministry of Interior regarding Security Clearance of each application and according to him such clearance was issued vide letter dated 16-6-2008 but PEMRA did not issue STV license to Roshni T.V. with malafide intentions and ulterior motives and same was observed in C.P. No.2159/2008. Further stand was taken on behalf of the appellant that the application under reference was filed by unauthorized person not having specific authority of PEMRA and there is no case made-out to recall the said order and that an amount of Rs.5700,000 had already been deposited with the PEMRA.

            Heard learned counsel for the respondent No.1 and appellant in person and have gone through the relevant record with their valuable assistance.

            Instant application was mainly moved on behalf of the respondent No.1/PEMRA with aforesaid prayer with the stand taken that said order was obtained through misrepresentation, whereas from the side of the appellant the stand so taken on behalf of the respondent No.1/ PEMRA has been opposed vehemently. There is no denial to the proposition that section 12 of the Code applies the principle of res judicata as envisaged in the previous section i.e. Section 11, C.P.C. to the Rules where the party is specifically precluded from instituting a further suit in respect of any particular cause of section in any court to which the Code applies. The expression 'rules' refers to the rules of the Code as well as rules and form contained in any independent statute as has been observed in AIR 1978 All. 313. The bare reading of section 12(2) C.P.C. envisages that a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the court which passed the final judgment, decree or order and not by a separate suit and in this sole view of the matter I have no hesitation in observing that there is no force in the submissions as made by the appellant that application is not maintainable or it was filed by an unauthorized person. On the contrary the application which is supported by an affidavit of the person who has disclosed his official status and authority the contention as raised by the appellant has no force of law, as such, repelled.

            Under the scheme of law with reference to section 12(2) C.P.C. it has been laid down that justice requires that every cause once tried and finally adjudicated upon by a competent forum must be deemed to be conclusive and binding on the litigants and the parties deriving title from them. Proceeding under section 12(2) is in the nature of declaratory suit, seeking declaration to the effect that the decree passed by civil court was the result of fraud and misrepresentation and it is the duty of the court to see whether same has been obtained by misrepresentation, or fraud and my this view gets support from the decision as appeared in 2004 CLC p.1427. In the application in hand stand has been taken on behalf of the respondent No.1/PEMRA that counsel was not so instructed, however, I have in my view the dictums of the honourable superior courts as appeared in 1969 SCMR p.306, 1998 SCMR p.1462 and PLD 1973 S.C. p.236 wherein view was taken to the effect that the conduct of the party is always relevant in seeking equitable relief where the petitioner against counsel, who file power of attorney and thereafter the petitioner as well as the counsel did not enter appearance before the trial court, therefore, the court had no other alternative except to pass ex parte decree and it was further observed that it is settled principle of law that equitable jurisdiction cannot be exercised in favour of a person who has come to court with gross negligence. In the dictum of the honourable superior court as appeared in 2001 SCMR P.1984 it has been observed that 'record necessitating amendment in order to amplify the plea of fraud already made, allowing amendment would be in the interest of justice. In the dictum of the honourable superior court as appeared in 1999 SCMR p.1714 and in 2006 YLR 641 where there was matter involved as the counsel having an authority to withdraw suit (or to enter into compromise) and there is a legal presumption with regard to such authority, yet such presumption is always rebuttable. If the party challenges the authority so his counsel, party is at liberty to prove the same by producing evidence. In the case in hand since misrepresentation has been pleaded by the learned counsel for the respondent No.1/ PEMRA and same has been placed on the shoulders of the appellant as such, I have in my perusal on the subject that word 'mis-representation' has been defined by Ballentine's Law Dictionary to which reads as under:--

            'The statement of an untruth. A mis-statement of fact which if accepted leads the mind to an apprehension of a condition other and different from that which exist'.

            In the case in hand no doubt order dated 6-3-2014 was passed by this court in all fairness on the offer made through statement by appellant which was not controverted by the learned counsel for the respondent No.1/ PEMRA ostensibly and consciously, however, in view of the assertion now being made on behalf of the respondent No.1/PEMRA apparently it is a matter where the scenario has changed which require complete adjudication and so following the dictum of the honourable superior court as , laid down in the case of Nazir Ahmad's, reported in 2001 SCMR P.46 that it is not necessary in every case that a court should be under obligation to frame issues, record evidence of parties and follow procedure prescribed for decision of the matter and my this view also gets fortified by the reported dictum as appeared in 2000 SCMR p.296 wherein it was laid down that application under section 12(2) may be disposed of after examination of record in question. In 1999 SCMR p.1696 it was laid down that courts are not bound to frame issue in every case when an application under section 12(2) C.P.C. is brought before the court, therefore, through this order I am of the view that there is no need to frame the issue and then to record the evidence as from the bare perusal of the available record the appellant had deposited an amount of Rs.57,00,000 though belatedly but the fact remains that such payment of amount is not the sole controversy, however, the amount so paid towards PEMRA and since the application in hand was moved whereupon the order dated 14-4-2014 as passed by His Lordship the Honourable Chief Justice whereby the operation of the order dated 6-3-2014 was suspended, therefore, in the circumstances, I am of the view that it would be in the fitness of things in order to meet the ends of justice and to resolve the controversy in depth by examining the actual facts involved in between the parties that the application in hand be allowed as both parties are agitating their respective claims as the appellant claims whereby he is being deprived of his lawful and constitutional rights to acquire license and on the other hand PEMRA is asserting on technicalities more specifically on raising of its objection on Audit Report, therefore, I am of the view that adjudication of main appeal challenging the order of PEMRA may bring the controversy to its logical end; hence the application in hand is allowed. Let the captioned appeal to come up for hearing on its original position. The respondent No.1/PEMRA is required to return the deposited amount of Rs.57,00,000 to the appellant if such request is made to it by the appellant.

            The application in hand stands disposed of in terms of above and the miscellaneous appeal is restored to its original number and position.

MH/R-22/Sindh                                                                                   Application allowed.