2005 P T D 1368

[Lahore High Court]

Before Muhammad Sair Ali, J

Messrs PEARL CONTINENTAL HOTEL, LAHORE through Director Finance and

another

versus

CUSTOMS, EXCISE AND SALES TAX APPELLATE TRIBUNAL, LAHORE and

another

Writ Petition No.17947 of 2004, decided on 23rd November, 2004.

Sales Tax Act (VII of 1990)---

----S. 46(4)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---

Recovery of sales tax---Appeal to Appellate Tribunal---Appellate Tribunal, pending
appeal through a conditional stay order stayed recovery of three-fourth principal amount
of sales tax, additional tax and penalty amount subject to deposit of one fourth of
principal amount---Petitioners having not complied with the condition of deposit of one-
fourth of demanded amount, stay application was deemed to have been dismissed, but
subsequently Appellate Tribunal again granted to petitioners stay order with the same
condition---Said condition was complied with by petitioners and they deposited one-
fourth of principal amount of sales tax---Appeal thereafter was adjourned sine die in
compliance with some executive order which remained pending---Authorities had raised
a demand for recovery of impugned amount, the subject-matter of appeal, as stay granted
by Appellate Tribunal was effective for six months in terms of S.46(4) of Sales Tax Act,
1990 and Authorities had also threatened petitioners with coercive measures on failure to
pay said amount---Petitioners, in their Constitutional petition, had sought a writ for
restraint of threatened coercive measures during pendency of petitioner's appeal before
Appellate Tribunal and also for direction to fix appeal for early hearing---Validity---
Delay in decision of appeal before Appellate Tribunal was not attributed to petitioners as
their appeal was adjourned sine die in compliance with some executive order---To
avail order of stay petitioners had complied with condition of deposit of one-fourth of
Sales Tax; it would be a travesty of justice in circumstances, to allow Authorities to adopt
coercive measures for recovery of amount which was subject-matter of pending appeal---
During pendency of such an appeal and for effectiveness of right to maintain the appeal,
petitioners were entitled to protection against coercive measures for effective
dispensation of justice and law in absence of any other efficacious remedy---Petitioners
could make an application before Appellate Tribunal for seeking early hearing of appeal;
in the mean-while Authorities were restrained by the High Court from adopting any
coercive measure against petitioners for recovery of amount under appeal---
Constitutional petition was disposed of accordingly.

Syed Mansoor Ali Shah for Petitioners.

Ch. Muhammad Zafar Iqbal for Revenue.

Date of hearing: 23rd November, 2004.

ORDER

Appeal filed by petitioner No.1 before the learned Appellate Tribunal, Customs,
Excise and Sales Tax, Lahore is pending since 5-6-2003 against the order-in-
original, dated 14-5-2003. The learned Tribunal admitted the appeal to the regular hearing
through order, dated 10-6-2003. On 1-7-2003, a conditional stay order was granted by the
learned Tribunal staying the recovery of the three-fourth of the principal amount of the
sales tax, the additional tax and the penalty amount subject to the deposit of one-fourth of
the principal amount. The petitioners did not comply with the condition of deposit of

Page No. 1 of 2
1/4th of the demanded amount where for the stay application was deemed to have been
dismissed. However, in view of the observation of this Court recorded in the order, dated
10-3-2004 passed in W.P. No.2943 of 2004, the stay was again granted to the petitioners
by the learned Appellate Tribunal with the same condition per order, dated 25-3-2004.
This condition was complied with and the petitioner deposited 1/4th of the principal
amount of the sales tax.

2. Thereafter on 4-5-2004 the appeal was adjourned sine die in compliance with some
executive order allegedly, dated 4-5-2004. The appeal has thus remained pending.

3. The learned counsel for the petitioners states that the respondents have raised a
demand for the recovery of their impugned amount; the subject-matter of the appeal as
the stay granted by the learned Tribunal was admittedly effective for six months in terms
of the provisions of section 46(4) of the Sales Tax Act, 1990. The respondents have also
threatened coercive measures for failure to pay the said amount. Hence this
Constitutional petition to seek a writ for restraint of the threatened coercive measures
during pendency of the petitioners' appeal in the learned Appellate Tribunal and also for a
direction to fix the appeal for an early hearing. The learned counsel emphasized that the
appeal remained pending owing to above-referred executive order and the delay thus was
not owing to petitioners' inaction.

4. I have considered submissions of the learned counsel for the petitioners. The appeal
filed by the petitioners is pending before the learned Appellate Tribunal. It has been
adjourned sine die through order, dated 4-5-2004. The delay in the decision of the appeal
is not attributable to the petitioners.

5. To avail order of stay, the petitioners complied with the condition of deposit of 1/4th
of the sales Tax. In view of the provisions of section 46(4) of the Act, the stay granted to
the petitioners lapsed automatically on expiry of six months whereas the case was
adjourned sine die on 4-5-2004. It is in these circumstances that the petitioners had to
invoke the Constitutional jurisdiction of this Court in absence of any other remedy.

6. Under the circumstances of the present case, it would be travesty of justice to allow
the respondents to adopt coercive measures for recovery of the amount which is the
subject-matter of a pending appeal. The right of appeal; compete and unbridged, is a right
vesting in an affected person. To seek an interim relief is also a right recognized by the
Courts and the law to vest in such person as a necessary concomitant of the right of
appeal. In my opinion, denial of the relief of an interim protection in an appropriate case,
during the pendency of appeal, will be an abridgment of the effective and complete
appeal right. Furthermore, the petitioners are also entitled to at least one extra
departmental appeal. During pendency of such an appeal and for effectiveness of the right
to maintain the appeal, the petitioners under the circumstances are entitled to the
protection against coercive measures for effective dispensation of the justice and law in
absence of any other efficacious remedy.

7. The petitioners may make an application before the learned Appellate Tribunal for
seeking early hearing. I have no doubt that the learned Appellate Tribunal shall consider
petitioners' application and decide the same and the appeal at the earliest.

8. In the meanwhile, the respondents are restrained from adopting any coercive
measures against the petitioners for recovery of the amount under appeal. This
Constitutional petition is disposed of in above terms alongwith all C.Ms.

H.B.T./P-69/L Order accordingly.

Page No. 2 of 2
2003 Y L R 724

[Peshawar]

Before Talaat Qayyum Qureshi, J

Mst. IRSHAD BEGUM---Petitioner

Versus

Mst. GUL FARASHA and others---Respondents

Civil Revision No. 705 of 1985, heard on 1st November, 2002.

(a) Civil Procedure Code (V of 1908)---

----O.XX, R. 14 & O.XLI, R.5---Decree in pre-emption suit---Non-deposit of pre-

emption money within time specified in judgment by Trial Court---Dismissal of pre-
emptor's appeal by Appellate Court---Validity---Decree passed in favour of pre-emptor
was conditional, whereby he was, directed to deposit remaining pre-emption money
within one month time from date of order--No application for suspension of impugned
decree had been made before Appellate Court---Mere filing of appeal would not operate
as stay of proceedings under the decree---Decree had become ineffective and inoperative
due to non-deposit of pre-emption money within period mentioned therein---No appeal or
revision could either be moved or entertained in such a state of record--Impugned
judgment was based on proper appreciation of law---High Court dismissed the revision
petition.

Lutaf Ali v. Abdul Ghafur and others 1998 SCMR 1121 fol.

(b) Civil Procedure Code (V of 1908)---

----O. XX, R.14---Decree in pre-emption suit---Directions of Trial Court to deposit pre-

emption money by particular date--Failure of plaintiff to abide by such directions---
Effect---Such directions were mandatory under provisions of O.XX, R.14, C.P.C.---Suit
filed by plaintiff would stand dismissed due to non-deposit of pre-emption money.

Sulleh Singh and others v. Sohan Lal and another AIR 1975 SC 1957 fol.

Abdul Bari Khan for Petitioner.

Javed Ali Khan for Respondents.

Date of hearing; 1st November, 2002.

JUDGMENT

Syed Badshah Gul predecessor of respondents purchased land measuring 4 Kanals, 1

Marla vide Mutation No. 6767 attested on 19-9-1979. The sale was preempted by the
petitioners/plaintiffs by filing suit for possession through pre-emption in the Court of
learned Civil Judge, Charsadda. The said suit was resisted by the respondents/defendants
by filing written statement. The learned trial Court after framing as many as 11 issues,
recording pro and contra evidence of the parties decreed the suit by fixing Rs.20,000 as
sale consideration vide judgment and decree, dated 17-4-1984. The petitioners /plaintiffs
had already deposited Rs. 5,000 as pre-emption money and they kere directed to deposit.
the remaining amount of Rs.15,000 within one month of the order. Parties being not
satisfied with the judgment and decree filed appeals. The petitioners/plaintiffs were not
satisfied with the fixation of Rs.20,000 as sale consideration, therefore, they filed appeal
No. 131 / 13, whereas the respondents/ defendants being aggrieved of the judgment and
decree against them filed Appeal No. 140/ 13 of 1984. The learned Additional District
Judge disposed of both the appeals through single judgment, dated 1-10-1985. The appeal
filed by the petitioners was dismissed for non-deposit of remaining sale consideration

Page No. 1 of 3
within the prescribed time. Being not contended with the Appellate Court
judgment/decree the petitioners have filed the revision petition in hand.

2. Mr. Abdul Bari Khan Khalil Advocate the learned counsel representing the petitioners
argued that the petitioners were not liable to deposit the remaining sale consideration as
per directions of the trial Court because they had impugned the said judgment/decree
before the Appellate Court.

3. It was also argued that the respondents had failed to prove sale consideration, of
Rs.20,000 but the learned trial Court fixed the said price though on the basis of one year's
average Exh. P.W.1/2, but the said document showed that the average price was Rs.4,480.

4. It was also argued that the learned Appellate Court had committed material irregularity
while dismissing the appeal on the preliminary objections raised by the other side. The
appeal should have been decided on merits in accordance with law which was not done.

5, On the other hand Mr. Javed Ali Khan, Advocate the learned counsel representing the
respondents argued that the decree was passed in favour of petitioners/plaintiffs on the
condition of deposit of remaining amount within one month, which expired on 16-5-
1984. As per provisions of Order'20, Rule 14, C.P.C, the decree on non-deposit of the pre-
emption money was to be dismissed which was rightly dismissed by the learned
Appellate Court.

6. It was also argued that there was no application filed by the petitioner/plaintiff before
the Appellate Court for suspension of the judgment and order passed by the learned trial
Court, therefore, in absence of any restraining orders, the petitioners were obliged to
deposit, the pre-emption money within the time prescribed by the Court, which was not
done and even the pre-emption money has not been deposited till date.

7. I have heard the learned counsel for the parties and perused the record.

8. Admittedly a conditional decree was passed in favour of petitioners. The condition

imposed was that the petitioners/plaintiffs were directed to deposit the remaining
preemption amount within one month from the date of order. The impugned judgment
and decree in this case were passed on 17-4-1984 and it was incumbent upon the
petitioners/plaintiffs to have deposited the remaining pre-emption amount within one
month. In case of non-deposit of the amount, the suit filed by them would stand
dismissed with costs as is enunciated under Order 20, rule 14(b), C.P.C. which is
reproduced hereunder for convenience:--

"direct that on payment into Court of such purchase-money, together with the costs (if
any) decreed against the plaintiff, on or before the day referred to in clause (a), the
defendant shall deliver possession of the property to the plaintiff, whose title thereto shall
be deemed to have accrued from the date of such payment, but that, if the purchase-
money and the costs (if any) are not so paid, the suit shall be dismissed with costs."

9. This proposition came up for hearing before the august Supreme Court of Pakistan in
Lutaf Ali v. Abdul Ghafur and others (1998 SCMR 1121), in which their Lordships while
quoting Order 20, Rule 14, C.P.C. held:--

"The relevant part of the order of tote trial Court was to this effect. If the plaintiff fails to
deposit the amount his suit shall stand dismissed with costs. Keeping in view the words
of this order it would take effect automatically and in case of no deposit of the pre-
emption amount the suit per force of the order shall stand dismissed. The legal position
that filing of appeal would by itself not stay/suspend the operation of the judgments,
stands established. Thus the decree in favour of the petitioner had become ineffective and
in-operative and no appeal or revision could either be moved or entertained in such a
state of record. It is interesting that no application has so far been made for extension of
time and even if such an application had been moved that could not have been entertained
as the Courts had become functus officio to entertain such an application. It is also
provided under Order XX, rule 14, C.P.C., that if the pre-emption money is not paid
within time specified in the judgment then the suit should be dismissed. Therefore,

Page No. 2 of 3
argument from the petitioner's side` that the case be remanded so that this aspect is
agitated before the Appellate Court is misconceived as on account of the legal position
stated above it would amount to futile exercise specifically when no request for extension
of time in this connection has so far been made. The learned counsel referred to 1991
SCMR 2149 and 1995 SCMR 105 to support his stand. These judgments proceed on
distinguishable facts and have no resemblance with the facts of this case. In the former
case interim relief for stay had been sought and in the later it was held, "however, neither
a trial Court nor an Appellate Court can extend time for deposit , of pre-emption money
once the matter stands disposed of and is no longer pending before it. In such an event the
direction contained in the original decree to the effect that in case of failure to deposit the
pre-emption money the suit shall stand dismissed becomes effective."

10. Similarly in another case reported as Sulleh Singh and others v. Sohan Lal and 8
another (AIR 1975 SC 1957) it was held that when the decree-holder had failed to abide
by the directions given by the trial Court to deposit the pre-emption money, these
directions were mandatory under the provisions of Order 20, rule 14, C.P.C. and due to
non-deposit of pre-emption . money, suit filed by the plaintiffs was dismissed.

11. Since no application for suspension of the impugned, decree was submitted before the
Appellate Court and mere filing of the appeal under Order 41, rule 5, C. P. C. would not
operate as stay of the proceedings under decree, therefore, the decree in favour of
petitioner had become ineffective and inoperative due to non-deposit of pre-emption
money within the period mentioned in the decree, therefore, no appeal or revision could
C either be moved or entertained in such a state of record. The learned Appellate Court
while appreciating the law correctly has rightly dismissed the appeal. The impugned
judgment/decree passed by the learned Appellate Court is based on. proper appreciation
of law, hence need no interference. Resultantly the revision petition in hand is dismissed
with no orders as to costs.

S.A.K./683/P Petition dismissed.

Page No. 3 of 3
1998 S C M R 2314

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, Raja Afrasiab Khan and Wajihuddin Ahmed, JJ

TOMEN CORPORATION and another---Appellants

versus

Messrs MOHIB TEXTILE MILLS LTD and another---Respondents

Civil Miscellaneous Appeal No. 5-19 in Civil Appeal No.879 of 1998, decided on 16th
June, 1998.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 19th
February, 1998 passed in F.A.O. 86 of 1996).

Contract Act (IX of 1872)---

----S. 126---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2--Negotiable

Instruments Act (XXVI of 1881), S.13---Constitution of Pakistan (1973), Art. 185---
Letter of Credit---Import of machinery---Dispute between the parties---Stay application
filed by respondents was disposed of by High Court with a direction to respondent to
release the amount of letter of credit to the appellants on latter's furnishing a Bank
guarantee for the said amount--Appellants filed an application before Supreme Court for
suspension of the impugned order pending disposal of their appeal---Letter of Credit
contained unconditional stipulation for payment of the installment on the due date to the
appellants---Supreme Court, keeping in view that the appellants did not own any asset
within the territory of Pakistan modified the order passed by the High Court to the extent
that out of 5 installments which had become due for payment to the appellants under the
Letter of Credit and which according to both the parties came to 404, 374, 875 Japani
Yens, be paid to the appellants in the account which they were maintaining in Pakistan,
on the condition that out of said amount, the appellants would be entitled to remit only
2/3rd of the amount while 1/3rd would be retained in the said account---Future
installments would be paid to the appellants by respondents as and when those became
due under the terms of Letter of Credit, but out of all such amounts only 50 % would be
remittable outside Pakistan while 50 % amount would be maintained in the account in
Pakistan, and could only be remitted with permission of the Supreme Court.

U.D.L. Industries Ltd. v. Hongguang PLD 1997 Kar. 553 and P.O. Enterprises (Pvt.) Ltd.
v. Thai Rayon Co. Ltd. PLD 1990 Kar. 395 distinguished.

Pakistan Engineering Consultants v. P.I.A. Corporation 1993 CLC 1926; National

Construction Ltd. v. Aiwan-e-Iqbal PLD 1994 SC 311; Kohinoor Trading (Pvt.) Ltd. v.
Mangrani Trading Co. 1987 CLC 1533; Manzoor Textile Mills Ltd. v. Special Judge
Banking 1996 CLC 422 and Banque Indosuez Beligum v. Haral Textile Ltd. 1998 CLC
582 ref.

Hamid Khan, Advocate Supreme Court and Ijaz Ahmed Khan, Advocate-on-Record for
Appellants.

Umar Bandial, Advocate Supreme Court and M. A.Zaidi, Advocate-on-Record for

Respondent No. 1.

M. Sair Ali, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record
for Respondent No.2.

Date of hearing: 16th June, 1998.

JUDGMENT

Page No. 1 of 4
SAIDUZZAMAN SIDDIQUI, J.---Leave has been granted in the above appeal against
the judgment of a learned Judge in Chambers of Lahore High Court, dated 19-2-1998,
whereby the stay application filed by respondent No.1 in F.A.O. No.86 of 1996 was
disposed of with a direction to respondent No.2 herein, to release the amount of Letter of
Credit (L.C.) to the appellants on latter's furnishing a bank guarantee for the said amount.
The appellants have filed an application for suspension of the impugned order pending
disposal of their appeal. We have heard Mr. Hamid Khan, the learned counsel for the
appellants, Mr. Umer Bandial, Advocate Supreme Court and Mr. Sair Ali, Advocate
Supreme Court for the respondents Nos. l and 2 respectively.

2. Respondent No.1 established a Letter of Credit (L.C.) through respondent No.2 in

favour of the appellants for import of Textile Machinery from Japan. 1/10th of the price
of machinery was payable on shipment of the machinery and the rest of the amount was
payable in 12 equal instalments to be paid in 7 years time. The contract for import of the
machinery under the L.C., which was established through respondent No.2, was approved
by the State Bank of Pakistan. It is an admitted position that the machinery was shipped
in June 1994 and arrived in Pakistan by the end of 1994. The machinery was installed at
Muzaffargarh and it became operative in or about March 1995. The first instalment which
became due under the L.C. on 15-6-1995 was paid in time. However, the second
instalment under the L.C. which was due during the month of December 1995 was paid
in March 1996. The 3rd, 4th, 5th, 6th and 7th instalments, which fell due under the L.C.
on 15-6-1996, 15-12-1996, 15-6-1997, 15-12-1997 and 15-6-1998 respectively, have not
been paid as a dispute had arisen between the parties. Respondent No.1 instituted a civil
suit for damages against the appellants claiming a sum of US $ 31,516,993 alongwith
mark up. Alongwith the suit, respondent No. l also claimed temporary injunction
restraining respondent No.2 from making payment of any further instalment under the
L.C. :dated 15-1-1994 to the appellants. The appellants on being served with the notice of
injunction application moved an application before the Court under section 34 of the
Arbitration Act invoking arbitration clause in the contract. The learned Civil Judge
dismissed the application for grant of temporary injunction and ordered stay of the suit
under section 34 of the Arbitration Act directing the parties to have recourse to the
arbitration clause contained in the contract. Respondent No. l filed F.A.0. No.86 of 1996
against the order of trial Court staying the suit and rejecting the stay application. The
learned Judge in Chambers though upheld the order of the trial Court staying the
proceedings of the suit but modified the same to the extent that the arbitration
proceedings should take place in Pakistan instead of being held in Honk Kong as
provided in the arbitration clause. In so far the prayer of respondent No.1 seeking stay of
the payment of the amount of the amount of instalments due under the L.C., the learned
Judge in Chambers directed that the amount of instalment due under the L.C. be paid to
the appellants on the condition of furnishing a bank guarantee.

3. As. stated earlier, leave has already been granted by us against the impugned judgment
and the appellants are now seeking modification of the order of the learned Judge in
Chambers to the extent that the condition of furnishihg bank guarantee imposed by the
learned Judge for payment of further instalments under the L.C. be modified by
withdrawing the said condition. We have heard the learned counsel for the parties at
length.

4. Mr. Hamid Khan, the learned counsel for the appellants, contended that the payment of
instalments under the L.C. established by respondent No.1 in favour of the appellants was
unconditional and, therefore, the same could not be withheld when became due for
payment. The learned counsel contends that the machinery supplied to respondent No.l
was strictly in accordance with the specifications mentioned in the contract and there
being no fraud or misdescription or misdeclaration in the shipping document, the
payments under the L.C. could not be withheld. The learned counsel further contended
that the machinery imported by respondent No.1 under the L.C. has not only been
installed but it is now operative and every effort has been made by the appellants to tide
over the difficulties which respondent No.1 encountered during the operation of the said
machinery. The learned counsel in this connection, pointed out that time and again team
of engineering experts was despatched by the appellants to assist respondent No.1 in
removing the difficulties encountered by him at initial stage as well as thereafter. In
support of his contention that where the payment under L.C. is unconditional the same

Page No. 2 of 4
could not be stopped, the learned counsel relied on the case reported as Pakistan
Engineering Consultants v. P.I.A. Corporation (1993 CLC 1926). The relevant
observations relied by the learned counsel in support of his contention appear at page
1933 of the report are as follows:--

"8. In our view, there seems to be preponderance of judicial view that in case of a letter of
credit and an unconditional Bank guarantee, the Court would generally be reluctant to
grant an ad interim injunction restraining a Bank from honouring its contractual
obligation. However, in exceptional cases, where refusal to grant an ad interim injunction
will perpetuate fraud or injustice, which should be apparent from the material on record,
the Court may grant an ad interim injunction. In our view, the instant case does not fall
under the category of exceptional cases. The bank guarantee was given against the cash
amount paid by the P.I.A. towards the 10% mobilization advance of the cost of the
contract. The above amount was to be adjusted against the running bills and the final bill
at the rate of 10% which has not been fully adjusted, and, therefore, the balance amount
of the Bank guarantee in fact belongs to the P.I.A. Under the terms of the Bank guarantee,
the Bank has given undertaking to pay the amount on demand by the P.I.A. without
questioning it and without making a reference to the consultants and, therefore, it will not
be just and proper to grant an ad interim injunction. However, it will not be just to allow
the encashment of the full amount of the Bank guarantee. Mr. Nasim Farooqi, learned
counsel for the appellant, has submitted that the P.I.A. has withheld two running bills,
namely, 15 and 16 amounting to about Rs.20,00,000, Even if the above bills are to be
taken into consideration for the purpose of adjustment of the mobilization advance, only
10% amount of the bills could be adjusted towards the amount of the Bank guarantee,
namely, Rs.2,00,000 (Rupees two lacs). The question, whether the P.I.A. has illegally
withheld the above running bills or any other amount, will be au issue in the suit. If they
have done so, they will be rendering themselves liable to face the consequences thereof
under the law. "

The learned counsel also referred to the decision of this Court reported as National
Construction Ltd. v. Aiwn-e-Iqbal (PLD 1994 SC 311) besides relying on the cases of
Kohinoor Trading JPvt) Ltd. v. Manmgrani Trading Co. (1987 CLC 1533), Manzoor
Textile Mills Ltd. v. Special Judge Banking 1996 CLC 422), and Banque Indosues
Begum v. Haral Textile Ltd. (1998 CLC 582) in support of the above contention. The
learned counsel for the respondents, on the other hand, has very vehemently argued that
the appellants having no assets in Pakistan and a dispute having arisen, if the claim of
respondent No. l is decreed ultimately as a result of the arbitration proceedings, he will be
without any remedy if the appellants are allowed to take out the entire money from
Pakistan. The learned counsel, accordingly, contended that even if the instalments which
has become due under the L.C. have to be paid to the appellants, they may be directed to
furnish bank guarantee for the amount to be paid to them. To support his contention, the
learned counsel has relied on the cases of U.D.L. Industries Ltd. v. Hongguang (PLD
1997 Karachi 553) and P.O. Enterprises (Pvt.) Ltd. v. Thai Rayon Co. Ltd. (PLD 1990
Karachi 395).

5. We have gone through the two cases cited by the learned counsel for respondent No.1
and find that to the extent of the prayer of respondent No.1 that the amount be paid to the
appellants by furnishing a bank guarantee, the cases do support to some extent. However,
both the cases are distinguishable on facts as in the first noted case, an exceptional case
of fraud, mischief and injustice touching the violation of terms of the credit was found to
have been made out in the case. Similarly, in the second case also a bill of lading against
which payment was released under the L.C., was also found to have contained wrong
statement of facts. In the case before us, although respondent No. l in his suit has alleged
fraud on the part of the appellants but from the facts and the material placed on record, it
is difficult to hold, prima facie, that any fraudulent act was committed by the appellants
in getting the amount of first two instalments released under the L.C. It is also arguable,
prima facie, whether the specifications mentioned in the documents were not in
accordance with the specifications agreed between the parties. It is not disputed before us
that the L.C. established by respondent No.1 through respondent No.2 contained
unconditional stipulation for payment of the instalment on the due date to the appellants.
However, keeping in view that the appellants do not own any asset within the territory of
Pakistan, we are inclined to modify the order passed by the learned Judge in Chambers to

Page No. 3 of 4
the extent that out of 5 instalments which have become due for payment to the appellants
under the L.C. and which according to both learned counsel come to 404,374, 875 Japani
Yens, be paid to the appellants in the account which they are maintaining in Pakistan, on
the condition that out of this amount, the appellants will be entitled to remit only 2/3rd of
the amount while 1/3rd amount will be retained in the said account. Similarly, in respect
of the future instalments, these will be paid to the appellants by respondent No.2 as and
when they become due under terms of the L.C., but out of all these amounts only 50%
will be remittable outside Pakistan while 50% amount will be maintained in the account,
in Pakistan and could only be remitted with permission of this Court. The stay application
stands disposed of, accordingly.

M.B.A./T-6/S Order accordingly

Page No. 4 of 4
1997 SCMR 181

[Supreme Court of Pakistan]

Present: Saad Saood Jan, Muhammad Ilyas and Irshad Hasan Khan, JJ

ALLAH DITTA---Petitioner

versus

BASHIR AHMAD---Respondent

Civil Petitions for Leave to Appeal Nos.31/L and 32/L of 1996, decided on 3rd June,
1996.

(On appeal from the judgment dated 3-10-1995 passed in RFA 43-1994/BWP and R.A.
10-1994/BWP by the Lahore High Court, Bahawalpur Bench).

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.XXIII, R. 3, O.XXXIX, Rr.l & 2---
Constitution of Pakistan (1973), Art. 185(3)---Suit for specific performance of agreement
to sell---Trial Court granting conditional stay order whereby plaintiff was required to
deposit balance sale amount and on his deposit of amount his possession was not to be
disturbed---Plaintiff filed appeal against such decision where High Court with consent of
parties' counsel passed consent order whereby plaintiff was to deposit balance sale price
and on such deposit his possession was not to be disturbed---Plaintiff produced deposit
receipt which was objected to by defendant and on inquiry it transpired that plaintiff had
not deposited the balance amount but a part of the same and by interpolation and
overwriting made the same to appear as if he had deposited balance amount--Trial Court
dismissed plaintiff's suit and got registered criminal case against him which was still
pending---High Court dismissed plaintiff's appeal against Trial Court's decision and also
dismissed his review petition against consent order of High Court---Validity---Consent
order to which petitioner's counsel was party, was binding on petitioner---Even if it was
assumed-that counsel had exceeded his authority or High Court had gone beyond its
jurisdiction in making such order, petitioner had clearly ratified such order by his
subsequent conduct by making deposit in pursuance of same within stipulated time---
Trial Court was thus, justified in holding that suit stood dismissed in terms of said order
due to plaintiff's failure to make requisite deposit---Leave to appeal was refused in
circumstances.

Ijaz Ahmad Ansari, Advocate Supreme Court with Muhammad Aslam Chaudhry,
Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 3rd June, 1996.

ORDER

MUHAMMAD ILYAS, J.---This order shall dispose of C.P.S.L.A. No. 31-L/1996 as well
as C.P.S.L.A. No.32-L/1996 as they relate to one and the same suit brought by the
petitioner, Allah Ditta against the respondent, Bashir Ahmad.

2. The above suit was for specific performance of an agreement to sell certain land. It was
alleged by the petitioner (plaintiff in the suit) that the respondent, (defendant in the suit)
had agreed to sell the land in dispute for Rs.12,49,875. According to the petitioner, he
paid Rs.6,29,875 at the time when the agreement was entered into and the balance of
Rs.6,20,000 was to be paid at the time of attestation for mutation of sale of the land in
suit or at the time of the sale-deed in regard thereto. It was maintained by the petitioner
that the respondent wanted to resile from the said agreement and he was, therefore,
constrained to file the suit.

Page No. 1 of 4
3. According to averments of the petitioner he was handed over possession of the suit
land at the time the agreement was entered into. Apprehending his dispossession by the
respondent, he, alongwith the suit, filed application for grant of temporary injunction
restraining the respondent from interfering with his possession. A Civil Judge of
Ahmadpur East, District Bahawalpur, who was seized of the matter granted temporary
injunction subject to the depositing of Rs.6,20,000 (balance of the sale price which was to
be paid by the petitioner on his own showing) by the petitioner in the Court within seven
days failing which his application for temporary injunction was to be deemed to have
been dismissed.

4. Feeling aggrieved by the condition regarding payment of the above amount, imposed
by the learned trial Court for availing of the temporary injunction the petitioner filed an
appeal, namely, F.A.O. No.12-1994/BWP before the Bhawalpur Bench of the Lahore
High Court which was admitted to a regular hearing. He also made petition, i.e., C. M.
No.1-1994 in the said appeal for grant of temporary injunction. Notice in the above C.M:,
was issued to the respondent for 25th April, 1994 when the C.M. as well as the main
appeal (F.A.O. No. 12-1994/BWP) were disposed of by Muhammad Amir Malik, J., as he
then was, with the following order:-

"FAO & C.M. 1/1994.---Learned counsel for the appellant is prepared to deposit the
amount of Rs.6,20,000 till 25-6-1994 and offers that in case he fails to do so his suit may
be ordered to be dismissed. This offer is acceptable to the learned counsel for the
respondent.

2. Accordingly the appeal is accepted and setting aside the order of the learned lower
Court, the appellant is allowed to deposit the amount of Rs.6,20,000 in the learned lower
Court on or before 25-6-1994 and in case of his failure, his suit shall be deemed to have
been dismissed. "

5. In pursuance to the above order, the suit was remanded to the learned trial Court which
fixed it for 27th June, 1994. On this date, the petitioner appeared in person and submitted
challan receipt showing a deposit of Rs.6,20,000 having been made by him on 25th June,
1994. This receipt was objected to by learned counsel for the respondent alleging that it
was a forged document. Thereupon, the officials concerned were summoned and their
statements were recorded by the learned trial Court on 7th July, 1994. Their statements
revealed that, the petitioner had not deposited Rs.6,20,000 and, instead, a sum of
Rs.1,20,000 had been deposited by him. In view of the above discovery, it was held by
the learned trial Court that the suit shall be deemed to have been dismissed in terms of the
order of the High Court judgment and decree were, accordingly, passed by the learned
Civil Judge. Besides, he directed the local police to register a criminal case against the
petitioner for preparing and producing before him a fake challan receipt. The criminal
case so registered is still pending decision.

6. The petitioner assailed the judgment and decree passed by the learned trial Court by
means of an appeal, namely, RFA 42/1994/BWP, on 18th July, 1994. Thereafter, on 24th
July, 1994, he also made a review petition i.e. R.A. No.10/1994/BWP, seeking review of
the earlier order of the High Court, dated the 25th April, 1994 by which his F.A.O.
No.12/1994 was disposed of.

7. A Division Bench of the Lahore High Court, Bahawalpur Bench dismissed the said
appeal (R.F.A. No.43 of 1994/BWP) and the Review Petition (R. A. 10-94/BWP) by a
single judgment. Hence the two petitions, mentioned at the outset for leave to appeal
against the judgment of the learned Division Bench.

8. As noted by the learned Division Bench in its impugned judgment, the fate of the
whole dispute between the parties hinges on the validity or otherwise of the consent
order, dated the 25th April, 1995 passed by Muhammad Amin Malik, J. as he then was, in
F.A.O. No. 12-1994/BWP. If the said order did not suffer from any infirmity, the
judgment and decree by the learned trial Court, while disposing of the suit, would not
warrant any interference but if the consent order is struck down, the above judgment and

Page No. 2 of 4
decree, which are passed thereon would also have to be set aside. So we passed to
examine the petitioner's plea against the consent order.

9. It was contended by learned counsel for the petitioner that F.A.O. No. 12-1994/BWP
was directed against the conditional temporary injunction, passed by the learned trial
Court on an application made by the petitioner, and, therefore, while disposing of the
F.A.O., the learned Judge, Muhammad Amir Malik, as he then was, could not decide the
fate of the suit. The argument proceeds that the learned Judge in chamber could simply
uphold or set aside the conditional temporary injunction or modify the same but could not
pass any order relating to the main suit itself.

10. The above argument was also advanced before the learned Division Bench which
passed the judgment under challenge but was not accepted. Relevant portion of the
impugned judgment in this regard reads as follows:--

"13. There is no merit in the argument of the learned counsel for the appellant that the
F.A.O. was directed against interim order, therefore, this Court could not deal with the
main suit. The argument is utterly misconceived because injunction can be granted by a
Court subject to condition and if it is granted subject to the condition agreed to between
the parties then neither of them can challenge the same especially after availing the relief
granted. In the present case the appellant accepted the condition that he would deposit the
balance of the sale price by 25-6-1994 and in case of failure his suit may be dismissed.
The plea is mere concoction as is clear from the fact that the review application was filed
on 24-7-1994 whereas the appeal had already been filed on 18-7-1994, as already noted.
It is clear from the two dates that the review application was filed when it was realized
that there' is no merit in the appeal. Furthermore the review application was filed after the
dismissal of the suit."

11. There is lot of force in the above reasoning of the learned Division Bench.
Application of the petitioner, in which temporary injunction was issued by the learned
trial Court, was made by the petitioner in the suit filed by him and thus the said
application was a part of judicial proceeding initiated by him in regard to the land in
dispute. It would, therefore, follow that while entering into compromise forming basis of
the consent order in question, the parties' counsel or the learned Judge in Chamber did
not deal with any alien matter or any collateral subject. The petitioner's application in
which the conditional temporary injunction was passed by the learned trial Court, had
arisen out of the said suit and thus both the suit as well as the application for temporary
injunction formed part of one and the same judicial proceeding. Both parties to the case
were benefited by the consent order in one form or the other. As for the advantage
accruing to the petitioner, he got extension in time for deposit of Rs.6,20,000 which, as
fixed by the trial Court, had expired and the stay order granted to him by the learned trial
Court had come to an end. Now, in pursuance of consent order, the stay order again
became available to him and it was to continue till the disposal of suit if he had deposited
Rs.6,20,000 on or before 25th June, 1994. Now, adverting to the respondent, the benefit
falling to his lot was that payment of Rs.6,20,000 to him was ensured in the event of the
success of the suit, and in the case of its non-deposit within the stipulated time, the suit
against him would have failed. As explained above, the petitioner ratified the consent
order passed on the basis of the statement made by him counsel by telling the trial Court
after the remand of the suit in consequence of the consent order, that he had deposited
Rs.6,20,000 in terms of the said order although of the respondent's objection, it transpired
that instead of depositing the above amount, he had deposited Rs.1,20,000 only. Be that
as it may, even the deposit of Rs.1,20,000 was in terms of the consent order because an
amount less than Rs.6,20,000 could also not be deposited by him except under the
consent order, as the time fixed by the trial Court for making the deposit had expired
much earlier. As a result of the consent order there was a temporary injunction in his
favour which protected his possession over the land in suit till the disposal of the suit as
aforesaid. The petitioner did not think of finding fault with the consent order till after
filing appeal against the judgment and decree passed by the learned trial Court in the
main suit. It was during the pendency of the appeal against the said judgment and decree
that he decided to take exception to the consent order by making the review petition
under consideration.

Page No. 3 of 4
12. What emerges from the above discussion, therefore, is that the consent order to which
the petitioner's counsel was a party, was binding on the petitioner. Even it is assumed that
his learned counsel had exceeded his authority in subscribing to the consent order to the
learned Judge in Chamber had gone beyond his jurisdiction in making the said order the
petitioner had clearly ratified the compromise incorporated in the above order by his
subsequent conduct which has been spelt out a little earlier. Looked from any angle, the
consent order does not call for any interference. In other words, there is no good reason to
review the said order.

13. As for the appeal against the judgment and decree of the learned trial Court, it was not
urged by learned counsel for the petitioner that the petitioner had, in fact, deposited
Rs.6,20,000 in compliance with the consent order within the stipulated period. The
learned trial Court was, therefore, justified in holding that his suit stood dismissed in
terms of the said order due to his failure to make the requisite deposit in time. Thus, the
judgment and decree, by which the suit was disposed of by the learned trial Court, too,
are not open to any legitimate exception.

14. In result both the petitions, mentioned in the beginning are dismissed and the leave
prayed for therein is refused.

A.A./A-1418/S Leave refused.

Page No. 4 of 4
P L D 1996 Lahore 252

Before Malik Muhamniad Qayyum, J

MUHAMMAD SIDDIQUE --- Petitioner

versus

FAZAL HUSSAIN QURESHI and 2 others --- Respondents

Writ Petition No. 15153 of 1995, heard on 22nd.November, 1995.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-

Appeal dismissed

---- Ss. 13(6) & 15(5), (6) --- Denial of relationship of landlord and tenant --- Rent
Controller deciding such issue in favour of landlord and ordering eviction of tenant ---
During pendency of alleged tenant's appeal against Rent Controller's order of eviction,
landlord applied that alleged tenant be directed to deposit arrears of rent as well as future
rent pending decision of appeal --- Appellate forum directed alleged tenant to deposit
arrears of rent and future rent at specified rate --- Validity --- Where relationship of
landlord and tenant was denied by tenant, no order of deposit of rent could be passed till
such question was decided by Rent Controller --- Appellate Forum in terms of S.15(5) of
the Ordinance could only direct tenant to deposit requisite rent --- Grant of stay pending
appeal being discretionary with Appellate Forum in a proper case could make suspension
of order of Rent Controller conditional upon deposit of rent --Such aspect of the matter
was, however, not examined by Appellate Forum --Appellate Forum while admitting
appeal itself proceeded to suspend operation of order in question whereby Rent
Controller's order did not remain in existence and could not therefore, be made a ground
for exercise of power under S. 15(5) of the Ordinance --- Order of Appellate Forum was
declared to be without lawful authority and of no legal effect --- Such order, however,
would not prevent landlord for applying to concerned forum for modification or variation
of stay order and praying that same should be made subject to deposit of rent--Appellate
forum was directed to decide appeal within specified period.

Mst. Bashiran and 2 others.v. Ataul Haq and 2 others 1988 CLC 3; Akhtar Ali Pervez v.
Altafur Rehman PLD 1963 Lah. 390; F.A. Khan v. The Governmerit of Pakistan PLD
1969 SC 520 and M. Imamuddin v. Mst. Surriya Khanum through Legal Heirs PLD 1991
SC 317 ref.

Ch. Arshad Mahmood for Petitioner

Rashad Masood Ghugu for Respondent

Nemo for Respondents Nos. 2 and 3

Date of hearing: 22nd November, 1995

JUDGMENT

This petition under Article 199. of the Constitution of Islamic Republic of Pakistan, 1973
involves the interpretation of section 15(6) of the Punjab Urban Rent Restriction
Ordinance, 1959 and arises in the following circumstances.

2. An application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959
seeking eviction of the petitioner from house No. NEIR- 119/48, G. T. Road, Lahore was
filed by respondent No. 1 against the petitioner in the written statement denied the
relationship of landlord and tenant between the parties and instead' pleaded that he was in
possession of the house under an agreement of sale executed by respondent No. I in
favour of his wife. In view of this denial, the Rent Controller framed the following issues:

Page No. 1 of 4
(1) Whether there exists relationship of landlord and tenant between parties? OPA.

(2) Whether the petition is mala fide? OPR

(3) Relief.

On the basis of the evidence led before him, the learned Rent Controller came to the
conclusion that the petitioner was in possession of the house as tenant under the
respondent No.6. Resultantly an order of ejectment was passed Against the petitioner on
26th July, 1994.

3. Aggrieved by that order, the petitioner filed an appeal which came up for hearing
before the learned Additional District Judge on 22nd September, 1994 when it was
admitted to regular hearing and operation of the impugned order was suspended. During
the pendency of the appeal, an application under section 15(5) of the Punjab Urban Rent
Restriction Ordinance, 1959 was moved by respondent No. I praying that the petitioner
be directed to deposit arrears of rent as well as future rent pending decision of the appeal.
That application was allowed by the Additional District Judge on 1-10-1995 And the
petitioner was called upon to deposit arrears of rent with effect from August, 1985 to
September, 1995 and future rent at the rate of Rs. 1,000 per month. The petitioner has
assailed the order by invoking the Constitutional jurisdiction, of this Court.

4. Learned counsel for the petitioner has contended that an order under section 15(5) of
the Ordinance can only be passed in cases where relationship of landlord and tenant is
admitted and not when the dispute, in the appeal is itself as to whether any tenancy exists
between the parties. In that context, learned. counsel pointed out that section 15(5) by
reference makes section 13(6) applicable to appeals which has been interpreted invarious
cases in which it has been held that an order of deposit of rent cannot be passed where the
relationship of landlord and tenant is denied.

5. Learned counsel for the respondent No. I on the other hand, has vehemently argued
that once Rent Controller had found petitioner to be a tenant, the power under section
15(6) to pass order of deposit of rent under section 15(5) of the Ordinance was clearly
available to the Additional District Judge. In that respect, learned counsel has relied upon
the judgment of this Court in Mst. Bashiran and 2 others v. Ataul Haq and 2 others 1988
CLC 3.

6. As regards section 13(6) of the Ordinance, 1959 there cannot be any doubt that if
relationship of landlord and tenant is denied by the so Called tenant, no order of deposit
of rent can be passed till such time that question is decided by the Rent Controller. (See
Akhtar Ali Pervez v. Altafur Rehman PLD 1963 Lahore 390).

7. Even learned counsel for the respondents did not dispute this legal proposition. It has,
however, been argued by the learned counsel for respondents that once the Rent
Controller held a person to be a tenant, the appellants can pass an order of deposit of
amount during the pendency of the appeal, In order to appreciate this contention, it is
necessary to refer to section 15(5) of the Ordinance which reads as under:--

1-15-01-The appellate authority admitting an appeal for hearing still have the same
powers to direct the tenant to deposit the rent as are vested 'in the Controller under this
Ordinance and, if the tenant makes default in compliance with such an order, then, if he is
the appellant, his appeal shall be dismissed summarily and, if he is the respondent, his
defence shall be struck off. "

8 On proper analysis 6f the above-quoted provision it will be seen that the Appellate
Authority can only direct "tenant" to deposit the rent. The use of word "tenant" instead of
"appellant" is not without any significance and must be given due weight. If the intention
as urged by him, that an order of deposit of B rent can be passed there was nothing to
prevent the Legislature from conveying that intention by using the word "appellant" and
not "tenant".

Page No. 2 of 4
9. It was urged by the learned counsel for respondent No. I that once person has been
found to be a tenant by the Rent Controller, he can be directed to deposit the rent. This
argument appears to be attractive but does not stand the test of deeper scrutiny and
proceeds on about the true nature of appeal. It is axiomatic that appeal is continuation of
original cause and once the appeal is filed, the entire matter stands reopened and finality
of the impugned order disappears. If any authority is needed, reference may be Made to
F.A. Khan v. The Government of Pakistan PLD 1969 SC 520, wherein B.Z. Kaikaus, J.
observed that it would be thus anamolous to hold though the question as to whether or not
a person is a tenant remains to be decided by the Appellate Court, the appellant for the
purposes of section 15(5) should be considered to be a tenant in view of the findings of
the Rent Controller and be directed to deposit the rent. Supposing in a given case, at the
hearing of the appeal, the Appellate Court itself comes to the conclusion that the finding
of the Rent Controller holding the appellant to be a tenant was wrong; can the appeal be
dismissed on the ground that the order for deposit of rent under section 15(5) of the
Ordinance, 1959 has not been complied with? In my humble view, it would be anamolous
to do so.

10 The matter can also be examined from another angle. Section 15(5) of the Ordinance
brings in by reference section 13 (6) of the Ordinance. While interpreting section 15 (5),
the Supreme Court in M. Imamuddin v. Mst. Surriya Khanum through Legal Heirs (PLD
1991 SC 317) has been pleased to hold that the power of Appellate Authority to order the
deposit of rent is co-existent with the Rent Controller. Consequently, if in a case, where
the relationship of landlord and tenant is denied, the Rent Controller cannot pass an order
for deposit of rent without first determining existence of that relationship between the
parties, the same position should hold good as regards the power of the Appellate Court.
As while directing the deposit of rent, the Appellate Court acts under section 13 (6) of the
Ordinance, it must necessarily be subject to the same restrictions as are placed on the
Rent Controller and the Appellate Court cannot claim greater power than the same
vesting in the Controller.

11. According to the learned counsel for respondents., if above interpretation is accepted
serious prejudice shall be caused to a person who after protracted trial of ejectment
petition has been held to be the landlord as he would be deprived of the rent due to him
and its effect would be that the tenant would remain in possession of the property without
paying any rent pending decision of the appeal. Besides the fact that hardship cannot be
ground for misinterpreting the law, the Court is not powerless to ensure that its process is
not abused. Undoubtedly, grant of stay pending the appeal is discretionary with the
Appellate Authority under section 15 (4) of the Ordinance. Consequently, in a proper case
the Additional District Judge can make suspension of the order of the Rent Controller
conditional upon deposit of rent. However, in the present case, this aspect of the matter
was not examined by the Additional District Judge.

12. Reliance of the learned counsel on Mst. Bashiran's case supra (1988 CLC 3) is not of
much help inasmuch as what has been held in that case was that notwithstanding that no
order of deposit of rent has been passed by the Controller, it is open to - the Appellate
Court to set aside such order. In that case the question as to whether order for deposit of
rent can be passed where the relationship is denied was neither discussed nor decided.

13. It may also be noted that while admitting the appeal, the Additional District Judge
himself proceeded to suspend the operation of the impugned order which is meant that
the order of Rent Controller was not in existence and could not therefore be made a
ground for exercise of power under section 15(5) of the Ordinance.

In view of what has been stated above, this petition is allowed and the impugned
order is declared to be without lawful authority and of no legal effect. This order shall not
prevent respondent No. I landlord from applying to the Rent Controller for modification
of the variation of the stay order of Rent Controller and praying that it may be made
subject to deposit of rent. At the request of the learned counsel for respondent No. 1, it is
directed that the appeal shall be decided by the Additional District Judge within one
month without fail. Compliance of this order shall be reported to the Registrar of this
Court.

Page No. 3 of 4
A.A./N-2685/L PETITION ACCEPTED

Page No. 4 of 4
1994 C L C 2419

[Peshawar]

Before Sardar Muhammad Raza, J

M/s. ASIF MARBLE INDUSTRY, MARDAN---Petitioner

versus

WAPDA---Respondent

Civil Revision No. 307 of 1993, decided on 26th March, 1994

(a) Electricity Act (IX of 1910)

----S. 54(c) [as inserted by Electricity (Amendment) Ordinance (LXII of 1979)]---Civil

Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Bill of specified amount regarding
consumption of electricity challenged by plaintiff--Conditional stay order subject to
payment of the amount of bill was passed by Trial Court and maintained by Appellate
Court---Conditional stay order was challenged by plaintiff on the ground that Electricity
(Amendment) Ordinance, 1979, through which S.54(c) was inserted in Electricity Act,
1910, stood repealed---Validity---Repeal by Federal Laws (Revision and Declaration)
Ordinance, 1981 of Electricity (Amendment) Ordinance, 1979 would not have any effect
on the continuance of S. 54(c), Electricity Act, 1910, for repealing Ordinance had done
no harm to the Amending Ordinance, which amendment had already gone into the texture
of the original Act viz. Electricity Act, 1910--Conditional stay order passed by Courts
below was thus, correct and in accordance with law.

Azam Ali v. Custodian of Evacuee Property pLD 1968 Lah. 148; Abdul Majeed v.
Shahzada Asif Jan PLD 1982 SC 82 and Muhammad Afzal Khan v. Excise and Taxation
Officer PLD 1984 Pesh. 215 rel.

Hassan Noor v Deputy Commissioner, Chitral PLD 1975 Pesh 196 ref.

(b) Interpretation of statutes---

---- Repeal of an enactment would not affect the continuance of any such amendment
effected by that enactment unless a different intention was expressly stated in the
enactment by which that amendment was made.

Muhammad Aman Khan for Petitioner

Muhammad Latif for Respondent.

Date of hearing: 26th March, 1994

JUDGMENT

Asif Marble Industry, Small Industrial Estate, Mardan was billed by WAPDA for a sum
of Rs.1,18,049 regarding the consumption of electricity which was challenged by Shakeel
Ahmad, the petitioner-proprietor of the Firm who was denied temporary injunction by the
two Courts below in view of conditional bar contained in section 54(c) of the Electricity
Act to the effect that before the grant of any such favour, the consumer shall have to
deposit the disputed amount in Court. Conditional to this, the disconnection of the
premises was stayed. This is a revision petition against the order dated 26-4-1993 of Civil
Judge IInd, Mardan which was upheld by Additional District Judge I, Mardan on 26-5-
1993.

So far as the provisions of section 54(c) of the Electricity Act are concerned, both the
Courts below have rightly followed the law which in fact was inserted into Electricity Act
of 1910 by way of an amendment through Ordinance LXII of 1979. So long as this

Page No. 1 of 2
insertion of section 54(c) subsists, the A petitioner has no case but the learned counsel for
the petitioner has taken the plea that Ordinance LXII of 1979 through which the aforesaid
section 54(c) was inserted, stands repealed through Ordinance XXVII of 1981 Federal
Laws (Revision and Declaration) Ordinance, 1981 and that hence no conditional stay on
deposit of amount could be ordered.

3. After perusal of Ordinance XXVII of 1981 coupled with various other rulings on
the subject, one is constrained to hold that such repealing Ordinance has done no harm to
the amending Ordinance XLII of 1979 which amendment, has already gone into the
texture of the original Act. Azam Ali v. Custodian of Evacuee Properly (PLD 1968
Lahore 148) and Abdul Majeed v. Shahzada Asif Jan (PLD 1982 Supreme Court 82) was
relied upon by Mr. Abdul Latif Khan, learned counsel for the respondent stating that the
view was further followed by our own High Court in Muhammad Afzal Khan v. Excise
and Taxation Officer (PLD 194 Peshawar 215(b)). A perusal of the aforesaid rulings is
indicative of the fact that a repeal like the one in hand does not affect the continuance of
any such amendment unless a different intention was expressly stated in the law by which
the amendment was made. This factum is clearly explained in the last paragraph of
section 7 of Federal Laws (Revision and Declaration) Ordinance, 1981. As the amending
Ordinance LXII of 1979 does not carry any direction to the desired effect, therefore, such
amendment would have a continued effect despite its subsequent repeal.

4. Mr: Muhammad Aman Khan, learned counsel for the petitioner argued that if such is
the interpretation given to the repealing Ordinance it would amount to no repeal at all. He
relied upon Hassan Noor v. Deputy Commissioner, Chitral (PLD 1975 Peshawar 196) by
the legal point involved in the case is altogether different. The cited case related to the
effect of Provincially Administered Tribal Areas (Application of Laws) Regulation, 1974
Regulation I of 1974) which in the concerned areas was promulgated on 17th of April
1974 As Regulation I of 1974 was practically the enforcement of concerned laws,
therefore, the proceedings already pending before the Courts or Tribunals under the
Riwaj were to be saved from the effect of such Regulation. The instant one is altogether a
different situation where some amendments are apparently repealed but section 7 and the
saving clause whereof has clearly laid down that the repeal of any law shall not effect the
continuance of such law or such amendment unless a different intention was expressly
stated in the law by which the amendment was made. The last paragraph of section 7 of
Ordinance XXVII of 1981 commencing with the words "nor shall the repeal of any law "
is an additional para. as compared to section 7 of Regulation of 1974 and hence is to be
distinguished in letter and spirit. Harsh law it is but at the same time it is a law of the
land.

5. In view of the above discussion, I am of the view that the repeal by Ordinance XXVII
of 1981 of Ordinance LXII of 1979 does not have any effect on the continuance of
section 54(c) of the Electricity Act. In this view of the matter, the conditional order by the
two Courts below was rightly passed subject to the payment of the amount of bill.
Revision petition is hereby dismissed with no order as to costs.

A.A./1615/P Petition dismissed.

Page No. 2 of 2
1992 C L C 1930

[Karachi]

Before Salahuddin Mirza, J

NAUROZ KHAN---Appellant

versus

Mst. ZULAKHA---Respondent

F.R.A. No.307 of 1990, decided on 28th November, 1991.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 16 & 21---Striking off defence---Tenant alongwith appeal against ejectment order
passed against him by Rent Controller, had filed application under S. 21 (2) of Ordinance
praying that operation of ejectment order passed against him be stayed during pendency
of appeal---Such application of tenant was granted with condition that tenant should
furnish security for amount of arrears of rent and also should deposit future monthly rent
before 10th of following month---Tenant having. failed to fulfil that condition, landlord
filed application under section 16 (2) of Ordinance for striking off defence of tenant due
to his failure to comply with order of Appellate Court according to which tenant was
ordered to furnish security for arrears of rent and to deposit future monthly rent---Order
of Appellate Court was not at all passed under S. 16 (1) of Ordinance, 1979, but was
passed under section 21 (1) of that Ordinance by way of condition to grant of stay of
operation of ejectment order, thus its violation only meant that conditional stay granted to
tenant stood vacated because of non-fulfilment of condition on which it was granted and
it was upto landlord to have moved Rent Controller for execution of said order--Defence
of tenant for non-compliance of order of Appellate Court passed under section 21 (2) of:
Ordinance, 1979 could not be struck off because neither Rent Controller nor Appellate
Court had passed any tentative rent order under section 16 (1) of Ordinance---Order
striking off defence of tenant could also not have been passed for two reasons, firstly, that
no application under S. 16 (1) Ordinance was moved by landlord and secondly
relationship of landlord and tenant being in dispute, direction under S. 16 (1) of the
Ordinance for deposit of arrears of rent or future rent could not be made until existence of
such relationship had been established on record.

(b) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 2 (f) (j)---Relationship of landlord and tenant---Tenant having denied existence of

relationship of landlord and tenant between parties, onus to prove existence of such
relations, exclusively was on landlord, but landlord failed to discharge that onus as he
could not establish that he was owner of premises in dispute by producing reliable
evidence in that respect---Landlord having failed to establish that he was owner of
premises in dispute, ejectment application filed by him against tenant stood dismissed in
circumstances.

M. Khalid Farooqui for Appellant.

M. Ilyas Khan for Respondent.

Dates of hearing: 26th and 28th November, 1991.

JUDGMENT

This judgment shall dispose of the appeal as well as C.M.A. No.607/91 and I shall first
take up the latter.

2. Together with the filing of this appeal, the appellant had also filed C.MA. No.759/90
which was an application under section 21 (2) of Sindh Rented Premises Ordinance,

Page No. 1 of 4
1979, in which it was prayed that the operation of the impugned judgment of ejectment
be stayed during the pendency of this appeal. This application was conditionally granted
by this Court vide order dated 18-11-1990 and the condition was that the appellant should
furnish security in the sum of Rs.27,300, being arrears of rent from April 1983 to
November, 1990 at the rate of Rs.300 per month to the satisfaction of the Nazir of this
Court before 10th January, 1991, and to deposit future monthly rent in this Court from
December, 1990 onward and this future rent was to be deposited before the 10th of the
following months. This condition having not been fulfilled by the appellant, the
respondent moved C.MA. No.607/91 on 21-4-1991. This is an application under section
16 (2) of the Ordinance in which it was prayed that defence of the appellant should be
struck off for his failure to deposit. the rent in terms of the order dated 18-11-1990. 1t is
an admitted position that compliance of the order dated 18-11-1990 has not been made by
the appellant who in his counter-affidavit to this application admitted that he had neither
furnished the security nor deposited any future monthly rent till today. Now the claim of
the learned counsel for the respondent is that order dated 18-11-1990 was passed under
section 16 (l.) of the Ordinance and therefore its non-compliance attracted section 16 (2)
of the Ordinance under which his defence should be struck off forthwith. I am of the view
that order dated 18-11-1990 was not at all passed under section 16 (1) of the Ordinance. It
was passed under section 21 (2) of the Ordinance by way of condition to the grant of stay
of the operation of the impugned judgment. Its violation only meant that the conditional
stay granted on 18-11-1990 stood vacated because of non-fulfilment of the condition on
which it was granted. It was upto the respondent to have moved the learned Rent
Controller for the execution of the impugned judgment. It was upto the respondent to
have moved the learned Rent Controller for the execution of the impunged judgment
immediately after the default on the part of the appellant became known to him. The
security for arrears of rent was to be furnished before 10th of January 1991 and therefore,
it was not furnished by 9th January, 1991, the respondent was within his rights to file
execution application for the execution of the ejectment order passed in her favour
because the stay of execution of the order stood vacated on the close of the day on 9th
January 1991. That was all. The defence of the appellant cannot be struct off because
neither the Rent Controller nor this Court passed any order under section 16 (1) of the
Ordinance. As a matter of fact, order under section 16 (2) of the Ordinance could not
have been passed for two reasons. First, that no application under section 16 (1) of the
Ordinance was moved by the respondent. Second, the relationship of landlord and tenant
being in dispute and subject-matter of this appeal, a direction under section 16 (1) of the
Ordinance for the deposit of the arrears or for future rent could not be 'made until the
existence of such relationship had been established on record. As such, C.MA. No.
607/91 is without any merits 'and is dismissed.

3. The facts leading to the filing of this appeal are that respondent Mst. Zulakha had filed
an ejectment application under section 15 of the Sindh Rented Premises Ordinance, 1979
in January 1985 and it was claimed by her that she was the owner of the premises bearing
No.6165, Block No. 1725, Norani Gorund, Iqbal Road, Baldia Town, Karachi, which
consisted of two rooms and other necessary amenities, that the premises were rented out
to the appellant on 4-10-1980 and a written agreement was executed between the parties
according to which the rent was Rs.300 per month. It was alleged that rent was paid upto
March 1983 and since April 1983 rent was not paid. Thus default in the payment of rent
from April 1983 to January 1985 was the only ground on which eviction of the appellant
was sought. It was also stated in the rent application that the respondent had earlier filed
an ejectment case (RC No.4468/84) which was however dismissed for non-prosecution in
January 1985. The default in pursuing the previous rent case was explained by stating that
the respondent was proceeding on "Hajj" and her only son Usman was a seaman and
remained mostly out of Karachi and that rent case was pursued by respondent's daughter-
in-law who was made a special attorney for the said purpose. In his written statement the
appellant denied the very existence of the relationship of landlord and tenant. He
conceded that the respondent was owner of the premises but he claimed that she had sold
these premises to him vide sale-deed dated 23-2-1970 and eversince he had been living in
the premises in his own right as its owner. Non-payment of rent was thus an admitted fact
and therefore the only issue that arose was as to whether the relationship of landlord and
tenant existed between the parties. On the basis of the evidence adduced before him,
learned Rent Controller came to the conclusion that such relationship existed between the

Page No. 2 of 4
parties and, since nonpayment of rent was an admitted fact, he granted the ejectment
application vide judgment dated 20th May 1990 which is impugned in this appeal.

4. Learned counsel for the appellant denies that the alleged rent agreement dated 4-10-
1980 is a genuine document. He points out that in the previous Rent Case No:4468/83 the
tenancy was claimed to have come into existence in April 1982 through an oral
agreement between the parties whereas in the second rent application, out of which this
appeal arises, the tenancy is said to have commenced on 4-10-1980, and this time a
written rent agreement of this date is produced. It was also pointed that AW-4
Muhammad Ibrahim Baloch stated in para. 2 of his affidavit that respondent Mst. Zulakha
had purchased this house from one Hamid Ali on 17-10-1990 but in her crossexamination
she stated that Haji Muhammad Usman had purchased a plot from Hamid Ali in 1980.

5. 1 have gone through the evidence on record through the help of learned counsel for the
parties and it appears to me that the respondent has not sufficiently established that the
appellant was occupying the house in dispute as her tenant. Copy of ejectment application
in Rent Case No.4468/83 is available on record and it is clearly stated in para. 2 thereof
that the tenancy had commenced in the month of April 1982 and that the appellant paid
rent, exactly for eleven months and upto March 1983. There can therefore be no doubt
that the respondent was quite sure as to the date of commencement of tenancy and any
doubt in this respect is removed when it was stated that rent was paid exactly for eleven
months and upto March 1983. Since there- is no mention of any rent agreement in the
previous rent application, and in fact none was filed or relied upon with the previous rent
application, it clearly follows that the case of the respondent at that stage was that the
tenancy was through an oral agreement. However, this position has totally changed when
the second rent application was filed on 23-1-1985 because in this rent application the
period of commencement of tenancy goes back by two years and also the tenancy is now
said to have been created through a written rent agreement dated 4-10-1980. This
contradiction as regards the very inception of tenancy could not be satisfactorily
explained, by learned counsel for the respondent. I do not find any force in the arguments
of the learned counsel for the respondent that Mst. Razia, the daughter-in-law of the
respondent who was made special attorney for filing the previous rent case, was either
not properly briefed with date of commencement of tenancy or else she did not properly
communicate the correct factual position to the learned counsel who drafted the previous
rent application. This makes the rent agreement dated 4-10-1980 as highly doubtful.
Learned Rent Controller compared the signatures of the appellant on this rent agreement
with his admitted signatures on the written statement and came to the conclusion that
"they appeared to have been executed by one and the same person and this was evident
even to a naked eye." I have also compared these signatures but I cannot agree with the
learned Rent Controller as to his conclusion in this regard. There does appear some
dissimilarity between the two signatures and in view of the contradictory stand taken by
the respondent in the two ejectment applications filed by her, further doubts are created as
to the genuineness of the rent agreement. A.W.1 Haji Usman, the son and attorney of the
respondent, the alleged landlady, admitted that he had filed the previous rent case but
denied that in that rent case tenancy was said to have commenced in April 1982. He even
denied that no reference to any rent agreement was made in the previous rent cage. Both
these denials are factually incorrect since a perusal of the previous rent application
(No.4468/83) proves otherwise. The respondent had examined three witnesses in support
of her claim that the appellant had been inducted into premises as a tenant. The first is
A.W.2 Mst. Jamila Begum. She stated that she was next-door neighbour of the
respondent, knew the respondent for the last 20 years and that the appellant was the
tenant and had not paid rent since April, 1983. The second witness is A.W.3- Faqeer
Muhammad according to whom the respondent had purchased these premises in October
1970 and that he himself had lived in them as her tenant from July 1975 to June 1978 and
there was written rent agreement between him and the respondent. No such rent
agreement, allegedly executed by A.W.3 Faqeer Muhammad, was produced by the
respondent. It is surprising that whereas in para. 1 of his affidavit he gives the number of
house, the stated in his cross-examination that he did not know the number and had
forgotten it because he was illiterate. If he could not remember the number of house
because he was illiterate, it is not clear how he could give the number in the affidavit-in-
evidence. The last witness examined by the respondent is A.W.4 Muhammad Ibrahim
Baloch. It is interesting to note that whereas in his affidavit-in-evidence he only stated

Page No. 3 of 4
that he knew that the appellant was a tenant in the premises since 1980, in his cross-
examination he also claimed to be the scribe of the rent agreement dated. 4-10-1980
whereas the rent agreement (Exh.A/3) does not at all bear the signatures of Muhammad
Ibrahim Baloch as its scribe or even in any other capacity. He stated that the appellant
used to pay the rent (to the respondent) but he also stated that he did not know what was
the rent. It is thus evident that both Faqeer Muhammad and Muhammad Ibrahim Baloch
cannot be trusted as their evidence has been shaken in their cross-examination. This
leaves only Mst. Jamila Begum and although her evidence is not shaken in cross-
examination but in view of the contradictory nature of the stand taken by the respondent
in the two rent cases initiated by her against the appellant, the existence of relationship of
landlord and tenant cannot be decided on the basis of deposition of Mst. Jamila Begum. I
have also gone through the evidence brought on record by the appellant. It consists of the
evidence of Anwar Hussain, Amir Malik Khan, Zameen Khan and the appellant has (sic)
house or his identity card, etc. and therefore a presumption must be drawn against him
that he had never lived in the house between 1970 and 1982. I am of the view that the
onus to prove the existence of relationship of landlady and tenant lay exclusively upon
the respondent and therefore no presumption in this respect can be drawn by the failure of
the appellant to place on record such evidence. As such the findings of learned Rent
Controller cannot be sustained. Learned Rent Controller refers to an agreement dated 17-
11-1970 but no such agreement or its copy is available on the record. It was therefore not
proper for the learned Rent Controller to rely on this agreement or to mention it in his
judgment. Learned Rent Controller also makes a misstatement of fact when he states that
Muhammad Bux was a witness and he had fully supported the contents of the rent
application. As a matter of fact, Muhammad Bux was not a witness in the case and
therefore question" does not arise of his supporting or not supporting the rent application.

6. In short, I am of the view that the respondent failed to discharge the onus of the issue
and to prove that she was landlady of the appellant. The rent agreement and the evidence
of her witnesses are unreliable and it is not possible to rely on either of them.

7. It is not necessary to determine as to whether the respondent had sold the house in
question to the appellant vide sale agreement (or sale-deed) dated 23-2-1970. Civil
litigation is already pending between the parties and I am told that a civil suit filed by the
appellant seeking a declaration of his title in respect of the disputed house on the basis of
the document dated 23-2-1970 was dismissed by the learned Sr. Civil Judge/Rent
Controller on the same day when the rent application of the respondent was allowed and
the appeal of appellant is pending in the District Court. It is for the Appellate District
Court to determine the bona fides or genuineness of the agreement of sale or sale deed
dated 23-2-1970. Any determination in that respect is beyond the scope of this appeal. It
is made clear that the learned Appellate Court, while hearing the appeal in the civil suit,
shall not be influenced by the findings of this Court in this appeal which is strictly limited
to the determination of the existence or otherwise of the relationship of landlord and
tenant between the parties. It is quite possible that the respondent may not have sold the
house to the appellant and the alleged sale-deed dated 23-2-1970 may be forged and the
appellant may be living in the premises in any other capacity except that of a tenant.

8. For the above-noted reasons I set aside the impugned judgment and accept this appeal
with the result that the ejectment application filed by the respondent stands dismissed.
Under the circumstances of the case the parties are left to bear their own costs.

H.B.T./N-423/K Appeal accepted,

Page No. 4 of 4
1983 C L C 576 (1)

[Lahore]

Before Aftab Hussain, J

MUHAMMAD ANWAR-Petitioner

versus

PUNJAB PROVINCE AND OTHERS-Respondents

Civil Revision No. 260 of 1980, decided on Ist March, 1980. Civil Procedure Code (V of
1908)-- S. 115 and O. XXXIX, rr. I & 2-Revision petition against conditional stay order-
Petitioner liable to pay Government substantial amount-Civil suit without depositing
amount not competent-Conditional stay order issued-Petitioner, held, cannot feel
aggrieved against such order.-[Injunction].

Ch. Muhammad Ashraf Azeem for Petitioner.

ORDER

The learned Civil judge has found after spot inspection that prim facie the petitioner is
liable to pay to the Government at least some substantial amount. In view of this the Civil
suit was not competent without deposit of the amount he is called upon to pay to the
respondent. Notwithstanding this if a conditional stay order has been issued it would
prove that the court has shown a concession to the petitioner. HC cannot feel aggrieved
against it.

M. Y. H. Petition dismissed.

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