2016 M L D 966

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 applicant 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---Government 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 court---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 plaintiff 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 pendency 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 Enterprises 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 allot 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 allotment 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 question 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 order. 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 for 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 produced 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 respondents 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 the 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 FIR. 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 before 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 dated 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 holder 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 consideration 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 the 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 Server. 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 and 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 learned 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, perhaps 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 suit 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. The 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, record 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/transfer 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 appeal 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 nor 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 Divisional 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 issued 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 asked 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 rent 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 Deputy 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 criminal 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 Civil 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. Another 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 defended 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 the 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 allotment 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 the 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 period 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 was 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 disregard 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. Similarly, 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 others 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 such 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 matter 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 statement 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 discretion 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 section 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 delivered 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 official 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 adduce 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 course 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 impugned 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 substance, 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 consequence 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 like 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 vests 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 allotment 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 transfer 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 placed 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 Ltd. 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 being 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 respect 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 respondent 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 plaintiff. 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 even 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 adjudicate 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 that 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. Consequently, 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 and 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 public 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.