Friday, 31 October 2014

Strong grounds are required for cancellation of bail

PLJ 2014 Cr.C. (Peshawar) 137
Present: Malik Manzoor Hussain, J.
Maj. (R) MUHAMMAD HAMAD AHMAD--Petitioner
versus
ZIA-UR-REHMAN and another--Respondents
Cr.Misc. No. (BCA) 1311-P of 2013, decided on 4.11.2013.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Pakistan Penal Code, (XLV of 1860), Ss. 382/506/365/511/ 342/148/149--Cancellation of bail--Cancellation of bail granted by a competent Court of jurisdiction, very strong, extraordinary and cogent reasons are required as the considerations for grant of bail and cancellation of the same are totally different--Bail granted wrongly can be cured by punishing the accused after the trial but if his guilt is not proved, there cannot be any compensation if a bail is wrongly refused--This is the reason why the Courts are generally reluctant to cancel the bail as the discretion exercised in favour of accused cannot be interfered with unless there are strong and exceptional grounds warranting interference--No perversity was found in the impugned order and no exceptional circumstances has been brought to the notice of the Court--No case for cancellation of bail was made out--Mere nomination of accused in the FIR would not disentitle him from the relief of bail if otherwise, he was entitled for the concession of the same--As per record the respondent/accused was a government servant and there were no chances of his abscondence--Furthermore, the accused has not been shown to have misused the concession of bail--Petition dismissed.       [P. 139] A
Mr. Saif Ullah Khalil, Advocate for Petitioner.
Date of hearing: 4.11.2013.
Order
Through instant application, the petitioner seeks cancellation of bail granting order dated 19.09.2013, passed by learned Addl: Sessions Judge-XI, Peshawar whereby the Respondent No. 1 was released on bail, in case FIR No. 956 dated 09.09.2013, u/Ss. 382/506/365/511/342/148/ 149, PPC, P.S. Hayatabad, Peshawar.
2.  As per contents of FIR, the petitioner/complainant, on the strength of written application dated 5.9.2013 lodged a report against the Respondent No. 1 for committing offence under the provisions of law mentioned above.
3.  The respondent moved an application for bail before arrest, which was allowed vide order dated 19.09.2013, hence the instant petition for cancellation of the same.
4.  Learned counsel for petitioner contended that the Respondent No. 1 is directly charged in the FIR and a specific role has been attributed to him. He further contended that no mala fide or ulterior motive on behalf of petitioner/prosecution has been pointed out in the application as well as in the bail granting order. Thus the same is against the settled principle laid down by the Superior Courts. He further contended that co-accused are still absconder and the respondent is also required for investigation/interrogation and the offence for which the respondent is charged are of heinous nature and also comes within the definition of moral turpitude. Thus the respondent was not entitled for extra-ordinary relief.
Arguments heard and with the valuable assistance of learned counsel for petitioner, the record perused.
5.  From the perusal of record, it reveals that the occurrence was allegedly taken place on 3.9.2013 and as per application of complainant, the local police came to spot on that very day but astonishingly the report was lodged on 6.9.2013 with an unexplained delay of 3 days. There is a dispute between the parties and the occurrence took place at the office of respondent/accused. It is yet to be determined at the trial that who was aggressor and who has been aggressed upon, so far there is no independent witness who has narrated in support of the allegations levelled by the complainant. The District Public Prosecutor has directed the prosecution agency to complete the investigation within 14 days and ensure submission of challan but so far two months have been lapsed and not a single step has been taken by the prosecution to submit challan. No recovery has been effected from the respondent/accused and he has not been nominated by independent PWs and only there are vague allegations against the unknown persons.
6.  It is by now well settled that for cancellation of bail granted by a competent Court of jurisdiction, very strong, extraordinary and cogent reasons are required as the considerations for grant of bail and cancellation of the same are totally different. Bail granted wrongly can be cured by punishing the accused after the trial but if his guilt is not proved, there cannot be any compensation if a bail is wrongly refused. This is the reason why the Courts are generally reluctant to cancel the bail as the discretion exercised in favour of accused cannot be interfered with unless there are strong and exceptional grounds warranting interference. No perversity was found in the impugned order and no exceptional circumstances has been brought to the notice of the Court. No case for cancellation of bail is made out. Mere nomination of accused in the FIR would not disentitle him from the relief of bail if otherwise, he was entitled for the concession of the same. As per record the respondent/accused is a government servant and there are no chances of his abscondence. Furthermore, the accused has not been shown to have misused the concession of bail.
Under the circumstances, the instant petition being devoid of any force, is dismissed in limine.
(A.S.)   Petition dismissed

Thursday, 30 October 2014

Writ Petition under Article 199 against Order I Rule 10 Application

PLJ 1998 Lahore 1011
[Bahawalpur Bench]
Present: GHULAM SARWAR SHEIKH, J.
MUHAMMAD YAQOOB--Petitioner
versus
ADDL. DISTRICT AND SESSIONS JUDGE BAHAWALPUR etc.-
Respondents
W.P. No. 5506/97, dismissed on 13-11-1997.
Constitution of Pakistan, 1973--
-v-Art. 199--Writ Petition~O. 1 R. 10 of Civil Procedure Code, 1908-Party to suit-Impleading    of-Application    for-Acceptance    of~Challenge    to-- Impugned orders neither appear to suffer from any infirmity or perversity nor can be taken to be fanciful perfunctory or laconic any way- Neither any aspect has been pointed out nor high-lighted to show, or indicate that orders sought to be impeached and set at naught, suffer from any lacuna, which may have effect of rendering it to be withoutlawful authority and of no legal effect and significance-Not a single error liable to be corrected through judicial review has been hinted at~Rather finding of fact embracing and encompassing all aspects is neither exceptionable nor challengeable before High Court in constitutional petition—Petition dismissed in limine.        [Pp. 1012 & 1013] A
Malik Muhammad Aslam, Advocate for Petitioner.
Date of hearing: 13-11-1997.
ORDER
Heard.
2.                      Claiming to be owner in possession of 439 Kanals of land in Chak No. 42/DB, on the plea of having purchased it in open auction a suit for the
__ grant of a declaratory decree with perpetual and mandatoiy injunctions as  consequential relief, stands instituted by Muhammad Yaqoob petitioner.
3.   Such assertion has duly been controverted and traversed by his   adversary.
4.                        During the course of proceedings thereof, respondent No. 5 namely Maqbool Ahmad moved an application under Order 1 rule 10 C.P.C. for impleading him as party on the pleas that he had been selected as tenant in respect of piece of 100 kanals of land, forming the subject matter of "dispute", he is cultivating possession thereof since 1978; seeking ownership rights with regard thereto and disclosing that the petitioner has resorted to  this action after having made a vain attempt through a suit filed by his son namely Muhammad Khalid.
5.   It was allowed vide an order dated 21.6.1997 which, was assailed before learned Additional District Judge, Bahawalpur through a revision petition on the ground that learned Trial Court had not properly appreciated the facts of the case and illegally exercised its jurisdiction. Same, however. met the fate of dismissal on 6.10.1997.
6.       Such   orders   have   been   called   in   question   in   instant Constitutional Petition on the grounds enumerated in paragraph No. 10thereof.
7.           Reiterating the same, learned counsel representing the petitioner has endeavoured to argue that impugned orders dated  21.6.1997 and6.10.1997 passed by learned Senior Civil Judge and learned Addit onal District Judge, Bahawalpur respectively are absolutely void, illegal and liable to be set aside; that the learned Additional District Judge proceeded to pass the order with undue haste without summoning/requisitioning the record and that claim of respondent No. 5 is absolutely shaky. Reliance has been placed on Tariq Mahmood vs. Muhammad Saleem Qureshi, Addl. District Judge, Rawalpindi and 6 others (1992 C.L.C. 1432) (Lahore), Pakistan Banking-Council and another vs. Ali Muhammad Naqvi and others (1985 S.C.M.R. 714), Ahmad Din vs. Muhammad Bashir and 6 others (N.L.R. 1992 Civil 250) and Altaf Parekh vs. Delments Construction Company (1992 C.L.C. 700) to canvass that respondent No. 5 was wrongly impleaded as he is neither necessary nor proper party.
8.           When judged on the touch-stone and in perspective of true scope of powers vested in Court in this regard, as laid down in galaxy of rulings, few of which, stand quoted and referred to above, respondent No. 5 turns out and emerges to be at least "proper party" in wake of his possession over a considerable piece of suit land for the last about two decades, his claim of seeking title and proprietory rights with regard thereto and in lambasting the claim of petitioner, so as to lead to complete and effectual adjudication of the matters in controversy.
9.           No doubt, it is equally well.settled, that a plaintiff is "dominus litis" and ordinarily no person should be added as party against his wishes, yet, nothing is suggestive of any departure there-from or likelihood of causing any prejudice to him. Seemingly position in instant case is converse and rather otherwise not only to avoid multiplicity of proceedings, but also, involvement of parties into vortex of litigation.
10.   Be that as it may, Writ petition is liable to be disposed of from entirely a different angle as well. Impugned orders neither appear to suffer from any infirmity or perversity nor can be taken to be fanciful, perfunctory  or laconic any way.

11.    Neither^iny aspect has been pointed out nor high-lighted to show, or indicate that the orders sought to be impeached and set at naught, suffer from any lacuna, which, may have the effect of rendering it to be without lawful authority and of no legal effect and significance. In short, not a single error, liable to be corrected through judicial review has been hinted at. Rather finding of fact embracing and encompassing all aspects is neither exceptionable nor challengable before this Court in Constitutional Petition as expounded in plethora of authorities on the point.
12.  Viewed from any angle, Writ Petition merits out-right dismissaland is hereby dismissed in liminc.
«K.A.B.)                                                            Petition dismissed in limine.

Wednesday, 29 October 2014

Application to make legal heirs party to the suit

PLJ 1996 Karachi 353
Present: SHAFI MUHAMMADI, J. Late SAIFUDDIN through his legal representative-Applicants
versus
JAMIL AHMED-Respondent
Revision Application No. 85 of 1995 accepted on 11-7-1995.
 (i) Civil Procedure Code, 1908, (Act V of 1908)--
—S. 115 read with O.XXII r. IV-General Power of Attorney-Revocation of-Suit for declaration-Death of defendant-Application by Legal heirs for impleading as defendants-Dismissal of-Challenge to--Delay in moving application under O. 22 r. 4~Effect of—If delay can be explained and no prejudice is caused to any contesting party, then delay can be over looked-No point of delay was urged by respondent when application was argued before trial Court-Held: Weapon of technical delay in moving an application should not be used in promotion of principles of natural justice.
[Pp. 3357 to 359] A, B, & C
1994 CLC 544, 1994 CLC 2030 rel.
(ii) Civil Procedure Code, 1908 (Act V of 1908)--
—O. 22 r. 4-Whether Revision is not maintainable against O. 22 r. 4 of CPC-Question of-It is not correct that only appeal can be maintainable in each and every case of an application under O. 22 R. 4--In a case where there is not ex-parte order and defendant is contesting against plaintiff with full force then refusal by Court to bring his L.Rs on record after his death would attracted only Revision-After amendments brought in Rule 4 Order 22 CPC through L.R.O. 1972, a suit or appeal does not abate for non impleading of L.Rs even if no application is made-Held : If L.Rs. are refused to be brought on record, such decision of court would amount to crucify justice-                   [P. 359] D & E
AIR 1957 Madras 236 ref.

 (iii) Legal Representatives-
—Legal representatives only step into shoes of their predecessor-Right of legal heirs after impleading them as legal representatives of deceased defendant is neither lower nor higher or independent, because death of deceased cannot be used as rod of right to get any concession relaxation, penalty or sympathy for any body.            [P. 362] H.
(iv) Words and Phrases-
—O. 22 r. 4 (4), of C.P.C.-Opening sentence of sub rule 4 of Rule 4, does not give an impression of "Probibition"~Therefore, there is no prohibition in bringing LRs on record after death of any defendant.       [P. 360] F
(v) Words and Phrases--
—O. 22 r. 4(4), of C.P.C.--Word "or" used in sub-rule (4) of Rule 4 order 22 CPC given both impressions "Either" and "Conjunctiveness" in different situations--In case interest of L.Rs is effected directly or indirectly, then it is not proper for a court to dismiss an application under O.22 Rule 4.
[Pp. 360 & 361] G.
Mr. Shamsul Arifeen, Advocate for Applicants.
Mr. Khalid Habibullah, Advocate for Respondents.
Dates of hearing: 19-6-95, 26-6-95, 28-6-95, 3-7-95 and 11-7-1995.
JUDGMENT
This revision is addressed against the order of learned Vlth Senior Civil Judge, Karachi (South) passed on January 31, 1995 whereby application under Order 22 rule 4 C.P.C. filed by L.Rs of deceased defendant namely, Saifuddin for impleading them as Legal Representatives of the deceased was dismissed.
2. Facts giving rise to the present revision relate to a "twenty years old controversy" started in the shape of Suit No. 1347/75 renumbered as 3056/1985 on transfer to the Vlth Senior Civil Judge. The suit was filed by the present respondent namely Jameel Ahmed, against deceased Saifuddin and an advocate namely Muhammad Ahmed, for deceleration and permanent injunction. Important facts as unfolded in the plaint can be summarised as under :-
(a)              After creation of Pakistan, deceased Saifuddin (stated to be defendant No. 1 in the plaint and to be referred so hereinafter) became the owner of a business already established in Karachi and he executed a General Power of Attorney   on   8.10.1970   in   favour   of   the   plaintiff/respondent.
(b)       The said defendant purported to revoke power of Attorney on 31.1.1974 on board of foreign ship "S.S. Dwarka". The purported revocation was delivered to one Muhammad" Ahmed advocate made as Defendant No. 2 in the suit.
(c)              Declaration was sought by the plaintiff that purported  evocation of the power of Attorney by defendant No. 1 and its delivery to defendant No. 2 was illegal and unlawful and respondent continued to be lawful attorney of Defendant No. 1.
(d)              Saifuddin, on account of being on Indian National, could not travel to Pakistan to look-after the case property, therefore, he failed to appear in the court to file written statement with the result that an exparte decree was passed against him on 12.5.1976 whereas defendant No. 2 was dropped by the plaintiff.
(e)              Civil Appeal filed against the exparte decree was also dismissed by IV Additional District Judge on 20.7.1976. Hence Revision Petition No. 202 of 1976 was presented before this court which was allowed on 12.9.1984 and the matter  was   remanded  back  to  the  trial   court  for proceedings from the stage of evidence of the plaintiff as it was on 24.4.1976 with the following observations :-
"One cannot loose sight of the fact that the petitioner/defendant had merely been made exparte but he was still represented by a Counsel and if the evidence of the plaintiff was recorded in the case, the counsel of the petitioner could exercise the right of cross examination and could effectively present the case of the petitioner and brought out facts which could help the court in arriving at a reasonable decision. It is thus clear that by changing the decision of recording of evidence of the plaintiff to the decision of granting the decree merely on the basis of the averments in the plaint the court deprived the petitioner of a valuable right to cross examine the plaintiff which was available to him by the order dated 24.4.76. In these circumstances I am of the view that the dictim of their lord­ships of the Supreme Court in P.L.D. 1978 S.C. 89 is attracted, where a mere holder power of attorney without disclosing him interest, if any, in clear details, has been granted a declaration without any condition that the power of attorney granted in his favour is irrevocable. Therefore, I set aside the decree of the two lower courts below and send back the case to the trial court for proceeding with the case from the stage of the evidence of the plaintiff as it was on 24.4.1976 after the petitioner had been made exparte. I want to make it quite clear that I have not set aside the decision made by the trial court in making the petitioner exparte on 24.4.1976 because nothing has been brought to my notice which could convince me that the order of exparte was unjustified."
This was the end of first round of controversy in the High Court.
3.     After remand of the case by the High Court in 1984 the trial court failed to decide it even after expiry of 10 years and Saifuddin, the defendant No. 1, died in 1994, An application under Order 22 Rule 4 CPC was filed by the legal representatives of late Saifuddin for bringing their names on record but the application was dismissed on January 31, 1995 by  he learned trial court on the ground that it was not necessary to substitute the LRs of such defendant who had failed to file written statement. Logically of the learned trial Judge in his.own words, appears as under :-
"To may mind. L.Rs cannot be allowed to bring on record because defendant No. 1 failed to file the written statement, therefore, they are only at liberty to cross examine theplaintiff and if they have engaged their counsel, their counsel could only address the court for the proper guidance to the court to reach to right conclusion. For the abovereasons I find no merit in the application which his hereby dismissed."
Aggrieved by the said conclusion, LRs of deceased Saifuddin presented this Revision on 6.4.1995 which is the second round before this Court.
4.     Before, I touch the meritorious averments of the learned advocate, I consider it necessary to point out that on 29.5.1995, when this matter was fixed for Katcha Peshi and Mr. Shamsul Arfin, the learned advocate for the applicant was arguing the matter, Mr. Khalid Habibullah appeared in the court and showed his anxiety on behalf of the respondent to say something. I cannot put a seal of appreciation on the conduct of the learned advocate who intercepted  at the  stage of  atcha Peshi but Ioverlooked the same on account of scandalous delay of 20 years already taken place in disposal of the case by the trial court and I wanted to disposeof this revision as soon as possible. However, this indulgence further encouraged the learned advocates not only to argue the matter on the point specifically raised in the memorandum of this revision but also on several other points at bar including applicability of several provisions of law such as, Order 1 Rule 10, Order 22 Rule 10, Order 41 Rule 20 of C.P.C. besides several Articles of Limitation Act. Admittedly none of the points were raised before the trial court. In these circumstances, burdening this court with such points which were never raised before the trial court by taking advantage of unlimited patience of this court could be avoided and it would be appreciable that the same he avoided.

5.    This reality may not be denied by any sensible person that procedural provisions of law are introduced for advancement of justice and not to stifle the justice by hanging it with the ropes of technicalities because such an attitude may deprive the rightful persons from their rights which is strictly prohibited in our religion. Reference in this regard can be made to a tradition of the Holy Prophet (peace be upon him) quoted in a case reported as Kashmir Corporation v. P.I.A. in PLD 1995 Karachi 301. But these linesdo not mean to ignore any provision of Civil Procedure Code. The courts are bound to follow these provisions in their true sense and with their true spirit so that all other relevant provisions remain linked with one another and none of them becomes practically redundant at the time of its application. Ihave no hesitation to say that if any interpretation of any provision of law on the principles of natural justice keeps the said spirit and sense intact, then, the same must be preferred instead of falling in the clutches of technicalities. On the basis of these propositions, I decided to touch the main points urged by the learned advocates, of the parties in the forthcoming paragraphs.
6.   The learned counsel for the respondent supported the impugned order of the trial court on three grounds: one of which was specifically raised by the petitioner in the memorandum of revision while the other two grounds were mentioned in the counter-affidavit filed by the respondent. These grounds can be summarised as under :-
(a)    Interpretation of Order 22 Rule 4 CPC as discussed by the trial court was in accordance to the spirit of legislation ;

(b)              Application filed under Order '±2. Rule 4 CPC by the Petitioner before the trial Court was time-barred; and
(c)             The present revision was not maintainable.
So far as the delay in moving an application for impleading the LRs of a deceased party is concerned I am of the view that if any party of a suit fails to bring such an application within time and the said delay can be explained in the light of facts and circumstances of the case and no prejudice is caused to any of the contesting parties if these LRs are brought on record, then the delay can be overlooked. Reliance in this regard can be placed on the case of Walayat Hussain Vs. Dost Muhammad (1994 CLC 544) and Muhammad AsianVs. The Custodian Evacuee Property (1994 CLC 2030).
It was observed in the case of Walayat Hussain (Supra) by a Single Bench of the Lahore High Court as under :-
"It was true that application for setting aside of the abatement and substitution of the deceased defendant's legal representatives was filed beyond time but in the facts andcircumstances of the case noted above, the delay deserved to be   overlooked.    Contrary   course   shall    cause   grave miscarriage of justice and punishment awarded shall be misplaced.  In  result of judgments  of the lower courts        defendants earned a premium and the plaintiff suffered undeserved punishment"            Similarly the Hon'ble Supreme Court of A. J. & K obs rved in the case of Muhammad Aslam (supra) that :-
"It is a settled proposition that in appropriate cases the application to implead legal representatives filed after limitation can be allowed if the circumstances so justify in this regard."
In the present case, it is not known whether any separate application ™" -i. for condonation of delay or any such prayer was made or not in the _^, application moved under order 22 rule 4 CPC but from the impugned order it can be understood that no such point was urged by the respondent when application under Order 22 Rule 4 CPC was argued before the trial Court. This sole reason an be treated sufficient to strike down contention of the learned advocate for the respondent regarding delay, if any, in moving application by the petitioner under Order 22 Rule 4 CPC but I consider it necessary to take into consideration several other facts and circumstances too which are reflected from the record to deal with the point of delay in moving application under Order 22 Rule 4 C.P.C. by the LRs of the deceased defendant. Admittedly the petitioner (L.Rs of the deceased) reside at ^ Bombay in India and their deceased father Saifuddin was also an Indian vX, National. Although he was technically knocked out from filing his written statement before the trial court, yet he continued fighting for his rights with the present respondent till his death during the last twenty years. Position of the LRs is not different from the deceased predecessor because they also cannot travel freely from India to Pakistan. These facts and circumstances convince me not to burn the rights of these L.Rs in the furnace of technicalities merely on the ground of delay of few weeks in moving an application particularly in comparison to the delay of more than twenty years during which the suit could not be disposed of by the trial Court It is on account of such type of scandalous delay that the poor citizens avoid to fight for their rights in the courts and I have no doubt in my mind that such courts are responsible themselves for shattering the confidence of the courts ~ j—• in the eyes of citizens. Besides these important aspects, I enquired Mr. Khalid Habibullah, the learned counsel for the respondent to tell this court as to what prejudice would be caused to the respondent/plaintiff if the legal representatives are brought on record. The learned counsel lukewarmly conceded that no prejudice may be caused to the respondent.
On account of these reasons, I do not consider it proper that weapon of technical delay in moving an application be used as hurdle in promotion of principles of natural justice. In these circumstances, the delay in moving an application under Order 22 Rule 4 C.P.C. can be overlooked particularly when no prejudice is caused to the opposites party and the matter can be decided on merits.
7. Another ground also urged at bar was about the maintainability of this Revision. It was stressed by the learned counsel for the respondent that this revision is not maintainable because the matter can be agitated in an appeal. But the learned counsel failed to satisfy the court that only appeal could be filed against an order of dismissal or rejection of an application under Order 22 Rule 4 C.P.C. I have no doubt in my mind that in the circumstances of the case, the petitioners were fully justified to seek their remedy by filing this revision and not an appeal. There may be circumstances where revision may not be maintainable if an application under Order 22 Rule 4 C.P.C. is dismissed or allowed but it is not correct that only appeal can be maintainable in each and every case. For example in case of an ex-parte order against a deceased defendant during his life, a revision would not be maintainable against the finding of a Court if it comes to a conclusion that bringing legal heirs of deceased defendant is not necessary. Reference is this connection can be made to the case of Shamsher Narain Singh vs. Muhammad Safe reported in AIR 1926 Patan 29. But, in a case where there is no ex-parte order and defendant is contesting against the plaintiff with full force then refusal by the court to bring bis L.Rs on record after his death would attract only Revision. Reference in this regard can be made to the case of Rqjappa Vs. Andalamal reported in AIR 1957 Madras 236.
Same is in legal position of present revision. The trial Court had passed ex-parte order against the father of present petitioners on the ground of his failure to file written statement but the said order was set aside by this Court as detailed in para 2(e) above. At the time of death of the deceased, there was no exparte order against him and he was contesting the suit with full force. Therefore in the light oiRajappa case (supra) the contention of the learned advocate for the respondent has no force and the revision ismaintainable.
Besides the above reasoning, this point can be considered from another angle too. Prior to the Law Reforms Ord., 72 abatement of suits was common if a plaintiff failed to move an application for bringing the legal heirs on record within specified time but after the amendments brought in Rule 4 Order 22 CPC through L.R.0.1972, a suit or an appeal does not abate for non-impleading of LRs even if no application is made for the said purpose. It continues to its conclusion as if the plaintiff was still alive. In these circumstances if the legal heirs of a deceased defendant are refused by a court to be brought on record, then the result is obvious i.e. that the court may proceed ex-parte or without being opposed by anyone in favour of the plaintiff by keeping the LRs of the deceased to remain spectators only. Such decision of the Court would amount to crucify justice particularly in the present case because this court had already not approved such an act in the previous revision. In the light of this reason also, the contention of the learned advocate for the respondent does not appear to be convincing. I, therefore, hold that in view of the facts and circumstances as discussed above, this revision is maintainable.
8.   The main bone of contention between he controvertists in this revision relates to construction of Order 22 Rule 4 CPC. The portion under discussion of the relevant provisions to be construed i.e. sub-rule (4) Rule 4 of Order 22 CPC, runs as under :
"It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contests the suit at the hearing;   "
(underlining* is my own)
In my view the opening sentence of the said provisions i.e. "It shall not be necessary" certainly differs in its sense from that "It shall be un-necessary". May this view be accepted or not by any of learned advocates but, undoubtedly, this sentence does not give an impressing of ^'prohibition,". Therefore, in my view if there is any difference of opinion among the parties regarding necessity of bringing LRs on record and if any of the contesting parties, may be the plaintiff/plaintiffs or defendant/defendants", wants to bring LRs on record after the death of any defendant then there is no prohibition. Therefore, the words "It shall not be necessary be not construed in the sense that it is prohibited.
9.   Notwithstanding to this interpretation of the words i.e. "It shall not be necessary", contention of the learned adv., for the respondent can be taken into consideration from another angle too.
The relevant portion of the said provisions can be read as under :
(a)    It   shall   not   be   necessary   to   substitute   the   legal representative of any such defendant who has failed to file a written statement.

(b)    It  shall  not or be  necessary to  substitute the  legal representative of any such defendant who had failed to appear and contest the suit at the hearing.
From the impugned order it appears that the learned court has treated the word "Or" used in the provision in the sense of "either" or disjunctively. But the question arises:

"Here in Italics.
What would be the legal position if written statement has not been filed but the defendant is appearing and contesting the suit at the hearing or vice-versa ?
and
Whether the word "or" gives an impression of "conjunctive­ness" or otherwise ?
I am of the view that the word "or" used in sub-rule (4) of Rule 4 Order 22 CPC gives both impressions in different situations. For example, if death of defendant does not affect the interest of his legal heirs or in case the suit is decreed but the decree cannot be legally executed against the legal heirs then the word "or" would be read as "either". In such case, there may not be any necessity of brining the L.Rs on record if the deceased defendant and either failed to file written statement or had failed to appear and contest the suit at the hearing. But, in case the interest of L.Rs is affected directly or indirectly in the shape of execution of decree if the suit is decreed or in the shape of appeal filed against them, in case the suit is dismissed, or in another shape whatsoever it may be, then it is not proper for a Court to dismiss an application under Order 22 Rule 4 CPC no matter the same is moved by the plaintiff or by the L.Rs of the deceased defendant. In such situation the word "or" has to be construed in the sense of conjunctiveness.
In the present case, no doubt the deceased defendant has failed to file his written statement but he was appearing and contesting the suit at the hearing as a right which on denial by the court has been restored by this Court by interpreting this provision in that sense. In the present case if the legal feeirs are not brought on record and suit is decreed in favour of the plaintiff/respondent or dismissed, then these legal heirs may face hardships at the time of execution of decree or in case an appeal is filed against them. In this regard contention of the learned counsel for the plaintiff that these legal heirs can contest the matter at the time of execution of decree or appeal, as the case may, be does not seem to be convincing or in accordance to the actual spirit of justice. Hence the same cannot be embraced by this Court.
10. It may be interesting to point out that the last few lines of the impugned order appear to me not only novel but also symbol of dogmatism. These lines run as under:
"........................... they (mean L.Rs) are only at liberty to cross examine the plaintiff and if they have engaged their counsel, their counsel could only address the court for the proper guidance to the court to reach to right conclusion."
Can any court allow any counsel to address the court on behalf of any such person who is not a party in the matter ?
Or
To whom the plaintiff would make party as respondent in an appeal in case the suit is dismissed & if there was none as defendant after the death of defendant during the pendency of suit ? Whether the dead person ? or
The L.Rs who were not brought on record ?
I leave these questions without any further observation for consideration of the learned Senior Civil Judge, who dismissed the application under Order 22 Rule 4 CPC by expressing his view that a counsel could address the court for such legal heirs who were refused to be brought^ on record, and for the learned advocate also who supported such an impugned order of the learned trial Court.
11.   The learned counsel for the respondent specifically expressed his apprehensions that the L.Rs, if permitted to be brought on record, may re-open different issues by claiming that they have independent rights. To wash-away such baseless apprehension based on presumptions, I consider it necessary to make it clear that the petitioners in this revision (i.e. the LRs. Of the deceased defendant) only step into the shoe of their predecessor to follow his legacy and death of their deceased predecessor does not provide them any premium. Therefore, right of legal heirs after impleading them as legal representatives of deceased defendant is neither lower nor higher or independent of the right of the deceased because death of any defendant cannot be used as rod of right to get any concession, relaxation, penalty orsympathy for any body.
However, any effort or will of the respondent/plaintiff to get final order in the suit by keeping the L.Rs. of the deceased defendant out of the suit in any manner whatsoever is not a fair play particularly when no prejudice is caused to him in allowing the application under Order 22 Rule 4 CPC and the legal heirs are wishing to contest the suit with all its consequences. The just and appreciable path leading towards justice requires the parties to play their cards fairly on merits. In this regard the courts can play their role most effectively by crossing all hurdles, if any, to promote the said cause.
12.     In view  of the  aforesaid reasons,  this Revision  deserves acceptance which is accordingly allowed. Resultantly the impugned order of the learned Senior Civil Judge, Karachi (South) dated 31.1.1995 is set-aside. L.Rs. of the deceased defendant to be brought on record and the matter would proceed now from 'the stage as it was when defendant Saifuddin died.
The trial court is also directed to dispose of this "20 years old" matter expeditiously instead of keeping it as "antique". It would be appreciable if the suit be not adjourned in future for more than 7 days after every hearing unless there are unavoidable circumstances if it cannot proceed from day to day. No order as to costs in the circumstances of the case.
(MYFK)                                                                          Revision accepted.


Tuesday, 28 October 2014

Powers of a court under Order I Rule 10(2) of CPC

PLJ 1992 AJK 45
Present: ABDUL MAJEED MALLICK, CJ
SUPERINTENDING ENGINEER, ELECTRICITY, MIRPUR AND ANOTHER-Petitioners
versus
KASHMIR STEEL MILLS and another-Respondents
Civil Revision No.33 of 1991, accepted on 16.2.1992 (approved for reporting on
24.3.1992)

 (i) Civil Procedure Code, 1908 (V of 1908)--
—O.I, R.10(2)—Civil suit—Application for being impleaded as defendant— Whether Superintending Engineer (Electricity) could be allowed to be impleaded as defendant-Question of-Order I, Rule 10(2) of C.P.C. empowers Court to join any person as defendant who ought to have been joined as such for his presence before Court being necessary in order to enable Court to settle and adjudicate upon question involved in suit effectively and completely—Held: Superintending Engineer being a necessary party, waseligible to seek his appearance before Court as defendant by arraying him as such-S.E. directed to move District Judge for impleading him as defendant.
[P.50]F
(ii) Civil Procedure Code, 1908 (V of 1908)--
—O.IX. R.6~Civil suit-Non-appearance of defendants--£xparte order against-Challenge to-Order of exparte proceedings was recorded by clerk of Court and was signed by Presiding Officer-Application for setting aside exparte order was presented by a junior clerk who was neither party nor authorised agent of petitioners-It was not accompanied by affidavit-Interim orders show that defendants 1 and 3 were still being summoned for appearance and were not served till date of exparte order-Date on which exparte proceedings were ordered, was not date of hearing in suit—Held: Exparte proceedings against defendants 1 and 3 were patently unwarranted and as such illegal.
[Pp.47,48&50]A,B&C
PLD 1983 SC (AJ&K) 223 rel.
(iii) Civil Procedure Code, 1908 (V of 1908)--
—O.IX R.6-Civil suit-Non-appearance of defendants-£xpa/te order against- Challenge to-Suit was at stage of filing objections to miscellaneous application and defendants were not asked to file written statement at that stage-Despite exparte proceedings, defendants could join proceedings and present their written statement on next date for progress of suit—Held: Neither District Judge nor counsel for parties cared to appreciate situation of proceedings and unnecessarily indulged into ancillary proceedings resulting in present petition-­ Petition acccepted and exparte proceedings set aside.     [P.50JD&E
Mr.Muhammad Akhtar Chaudhry, Advocate for Petitioners. Ch.Muhammad Taj, Advocate for Respondents.
ORDER
The petition is addressed against the order of learned District Judge, Mirpur, passed on November 14, 1991, resulting in dismissal of application to set aside the exparte proceedings.
2. Kashmir Steel Mills brought a suit for perpetual injunction against the Superintending Engineer (Electricity), Muzaffarabad, Executive Engineer i, Electricity), Mirpur and Azad Government of the State of Jammu and Kashmir through its Chief Secretary, in the Court of District Judge, Mirpur, on May 8, An application for interim relief was also moved. The Executive Engineer (Electricity) Mirpur, was duly served, as such he appeared in the Court on June 17, 1990 when the case was adjourned for presence of the other defendants. On August 25, 1991, as the defendants were absent, they were proceeded exparte and plaintiff was ordered to lead his evidence on the next date. On August 29, 1991,statement of plaintiff as witness was recorded when an application was moved on behalf of defendants to set aside the exparte proceedings recorded against them. The application was opposed. It was, therefore, dismissed for want of proper presentation and sufficient cause for the absence of the defendants on August 25, This order has been assailed in the present petition.

3.           Mr.Muhammad   Akhtar,   the   learned   Counsel   for   the   petitioners contended that the petitioners were present in the Court on August 25, 1991 and
were sitting in the Retiring Room of the District Judge when the case was called on for hearing by the Clerk of Court, in his own office. The defendants not beingaware of the calling of the case, could not put up their appearance personally before   the   Clerk   of  Court  who   recorded  the   impugned  order  of exparte proceedings. The application was moved on August 29, 1991 i.e. 5 days after the passing of the order of exparte proceedings, as such the application was withintime and it well-explained the cause of absence of the defendant-petitioners. Ch.Muhammad Taj, the learned Counsel for the opposite side, controverted the aforesaid points and contended that none of the petitioners was present in the premises of the Court at the time when the suit was called on fof hearing therefore,   exparte   proceedings  were   correctly   made   against   them.   It   was emphasised that the application to set aside the exparte proceedings was neither presented properly by the petitioners or through their authorised agent nor it contained sufficient cause for absence of the petitioners. It was argued that said application was not accompanied by an affidavit.
4.      It appears from the record of the trial Court that the order of exparte proceedings was recorded by the Clerk of Court and was signed by the Presiding Officer. The application to set aside the exparte proceedings does not reflect presence of the petitioners in the Retiring Room of the Presiding Officer, as contended by the learned Counsel for the petitioners. The application is quite vague   and   ambiguous.   It   only   shows   that   absence   was   not   wilful.   The representative of the petitioners was present in the Court who could not put up his appearance for lack of knowledge of calling of the case. The application was signed by the petitioners but the interim orders reflect that it was presented before the Court by Muhammad Yasin, a Junior Clerk. Muhammad Yasin was neither a party nor an authorised agent of the petitioners, as such presentation of the application, prima facie, was not made by the petitioners. The application was not accompanied by an affidavit. It is, therefore, rightly pointed out by the learnedCounsel for the opposite side that the application, though moved within time, carried no satisfactory explanation relating to absence of the petitioners in the Court at the relevant time. The objection is, therefore, well founded.
5.            Here,   it   is   relevant   to   state   that   the   Superintending   Engineer (Electricity), Mirpur petitioner No. 1, is not party to the suit before the DistrictJudge, as such exparte order was not passed against him. The petition against the impugned order to his extent, is not maintainable on that score.  owever, an application was moved on his behalf before this  Court  to implead him as defendant, in the suit. This aspect of the case shall be dealt with next.
6.            The  relevant  provisions  relating  to   appearance   of the  parties  and consequences of their non-appearance before the Court, are postulated under thepurview of Order 9, CPC. The relevant rule of procedure which attracts to the position where the plaintiff appears and defendant does not appear when the suit is called on for hearing, is Rule 6. Under this rule, when it is proved that the summons has been duly served on the defendant and he has failed to appear when the suit is called on for hearing, the Court is empowered to proceed ex-parte against such defendant. Next, when it was not proved that the summons was duly served on the defendant instead of proceedingexparte due to failure of the defendant to appear before the Court when the suit is called on for hearing, the Court was enjoined to direct that second summons be issued for its service on the defendant.
7.            In present case, the summons was shown to have been served on the Executive   Engineer   (Electricity),   Mirpur,   petitioner   No.2,   and   not   on Superintending Engineer (Electricity), Muzaffarabad and the Chief Secretary who represented the Government. The proceedings preceding to the order of August
25, 1991 reflect that defendants No.l and 3 were still being summoned for their 
appearance in the Court and by the time, they were not duly served. In this view of the matter, exparteproceedings against defendants No.l and 3 were patently unwarranted, as such illegal.
8.            It would be useful to mention here that on June 19, one Muhammad Ishaque, an authorised agent of respondents No.l and 3 was recorded present but on that day, the Presiding Officer was on leave, as such the case was adjourned to July 16. On that day, again, the authorised agent of respondents No.l and 3 wasrecorded present and the Presiding Officer, again, was on leave, as such the case was adjourned to August 25. No authority of defendants No.l and 3 in the name of Muhammad Ishaque, or any other person was available on the file of the trial Court.  This  suggests that  Muhammad Ishaque  or  someone else were not authorised by respondents No.l and 3 to put up his personal appearance on their behalf.
9.     Rule 6(1), Order 9, CPC, as noticed earlier, refers to procedure where plaintiff appears and defendant  does not  appear.  It  provides  the mode of proceedings to be carried by the trial Court in presence of respective conditions ihrstrated therein. When it is proved that the summons was duly served on the defendant and he failed to appear when the suit was called on for hearing and the plaintiff thereby appeared, the court was empowered to proceed exparte against the defendant. Here, reference to non-appearance of defendant was co-related to the term "hearing of the suit". The term "hearing of the suit" finds its mention under the provisions of Orders 9 & 17, Rules and 3. It reflects that the Court has to dismiss the suit or to proceed exparte for want of appearance of the plaintiff and defendant when either of them failed to appear when the suit was called on for hearing. In other words, an action of dismissal of suit or exparte proceedings or exparte decree was permissible only when the party failed to appear on the day fixed for hearing of the suit.
10.  The term "hearing" invariably received the attention of the superior judiciary of the Sub-Continent and the consensus is that it confines to theproceedings relating to progress in the suit and not to proceedings where only a step prior to the progress of the suit was to be taken. The proposition waselaborated in different cases decided by this Court and Supreme Court of Azad Jammu and Kashmir. Reference is made to Habib Bank's case (PLD 1983 S.C.AJ&K 223). It was a case for recovery of amount as damages instituted by Khawaja iMuhammad Ishaque against Habib Bank Limited. On the day when the order of exparteproceedings was passed, the case was adjourned for proper orders. On that day, the defendants were absent and they were proceeded exparte.The learned Chief Justice while dealing with Rule 6(1) of Order 9, CPC, observed:--
"S.Discussing the scope of Order IX, Rule 6(1) of the C.P.C. the Courts are practically one to observe that it is confined to the first hearing in the suit and does not,perse, apply to the subsequent hearings. The provisions under this order do not apply to a case (as the case is before us) in which plaintiff or defendant has already appeared but has failed to appear at an adjourned hearing of the suit".
11.        The term "hearing" was further examined and construed as:~
13. The word "hearing", it may be observed, has been defined nowhere in the C.P.C. As defined in Wharton's Law Lexicon it means "investigation of a controversy". The word "hearing" therefore, means taking of evidence or consideration of question relating to suit enabling the Judge to come to a final adjudication and not consideration of merely an ir'erlocutory matter. Where the wordings of the order indicate (as the case here is) fixation of date not for hearing but for consideration of merely an interlocutory matter ex parte order against the defendant cannot be passed on such a date and if it is done it being without jurisdiction is a nullity".

As on the date when the exparte order was recorded, no progress in the suit was to be made as the suit was adjourned for proper orders, the order of setting aside exparteproceedings was maintained.
12.    In present case, as noticed earlier, the Presiding Officer was on leave on two earlier dates to which the case was adjourned and again, proceedings wereadjourned to August 25, 1991, for proper orders. Thus, the date August 25, 1991 was not the date of hearing in the suit, as such exparte proceedings on account of absence of the defendants were unwarranted and illegal.
13.    The suit was at the stage of filing of objections to the miscellaneous application and defendants were not asked to file the written statement at thatstage. Despite  the fact  that exparte  proceedings were  ordered  against the defendants on August 25, 1991, they could join the proceedings on August 29,1991 and present t.heir written statement for the progress of the suit. It appears that neither the learned District Judge nor the learned Counsel for the partiescared to appreciate the situation of the proceedings under consideration and unnecessarily indulged into ancillary proceedings resulting in present petition.
14.    In this view of the matter, the petition is granted. The exparte proceedings recorded on August 25, 1991 are hereby set aside and the Executive Engineer, defendant No.2, who is already before the Court, is free to file his written statement on the next date of hearing.
" 15. The Superintending Engineer, Mirpur (Electricity) as described earlier, moved an application to implead him as defendant. The application is covered by the provisions of Order 1, Rule 10(2), CPC. Sub rule (2) empowers the Court to join any person as defendant who ought to have been joined as such for his presence before the Court, being necessary in order to enable the Court to settle and adjudicate upon the questions involved in the suit effectually and corrfpletely. The Superintending Engineer (Electricity), Mirpur being a necessary party, was F eligible to seek his appearance before the Court as defendant, by arraying him as such. Nevertheless, this application is to be moved before the trial Court first and  his Court can be approached only when such application is not adequately considered. Therefore, the Superintending Engineer (Electricity), Mirpur is directed to move the learned District Judge for impleading him as defendant, to enable him to prosecute the defence in the suit. The application is disposed ofaccordingly. No order as to costs.(MBC)                                 (Approved for reporting)              Petition accepted.

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