1. SAJJAD ALI SHAH, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioners have prayed as follows:--
(1) A declaration be given that the purported Final Demand Notices dated 28-4-2005 have been issued in an arbitrary manner and not in accordance with law, the same are void and legally unenforceable and are nullity in the eye of law.
(2) Permanent mandatory injunction may be granted against the respondent K.E.S.C., directing them not to disconnect the Electricity of all the five consumers Meters Nos, BL-001344, BL-001356, BL-001379, BL-001175 and BL-001178 and suspend the operation of the impugned notices as all current bills are regularly paid by the petitioners update, without any default.
(3) Restrain the respondent K.E.S.C. from initiating any proceedings under section 54-A of the Electricity Act for enforcing recovery of the said dues as arrears of land revenue as the matter has already been settled by the Honourable High Court vide order dated 17-7-2001 passed in Constitutional Petition No,1041 of 2001 and accordingly acted upon by the parties in dispute on 24- 7-2001.
(4) Grant any other/further relief(s) as deemed fit and proper in the circumstances of the case.
2. The facts stated in the memo. of petition are that the petitioners are private limited companies carrying business of marble cutting, processing, polishing and for this purpose have installed machines which are operated though Electric Power provided by the respondent- KESC through five Consumers/Meters Nos,BL-001344, BL-001365, BL-001379, BL-001175 and BL-001178. It is the case of the petitioners that they had filed separate suits against the respondent, which were decreed by this Court and consequently Execution Applications bearing Nos,30 and 31 of 2001 were filed by the petitioners wherein the petitioner's liability was worked out to be Rs,5,98,863.00 and since the respondent was not accepting the said amount consequently the petitioners filed Constitutional Petition bearing No,D-1041 of ,2001 wherein this Court on 23-7-2001 directed the restoration of electricity upon payment of the said worked out liability. Consequently, the dispute between the petitioners and the respondent-KESC was finally settled. Thereafter the petitioners were regularly paying the current bills but all of a sudden on 11-12-2001 they received following three demand notices:-- By T.C.S. Ref. No,ZCB/IMZ/2001/S-/5792/2001 dated 11-12-2001 Final Demand Notice Messrs Classic Marbles Ltd., 1-C, 92, Qasba Colony, Karachi.
3. Subject: Recovery of Energy Dues.
4. Consumer No,BL-1175 Account No,67546210 Rs,20,23,407.32 Dear Sir, You are hereby informed through this written demand that Rs,20,23,407.32 are outstanding against the subject meter, which you have neglected to pay in spite of all of our efforts.
5. This is, therefore, to give you Final Demand Notice to clear the above long pending dues within 7 (seven) days of the receipt of this communication, failing which we shall be constrained to refer the matter to the competent authority under section 54-A of the Electricity Act 1910 to enforcing recovery of these dues from you as arrears of land revenue.
6. Necessary payment slip is enclosed.
7. Thanking you, we remain, Yours faithfully, The Karachi Electric Supply Corporation Limited (Sd.) Zonal Controller Billing Industrial and Mis. Site Zone.
8. By T.C.S. Ref. No,ZCB/IMZ/2001/S-5793/2001 Dated 11-12-2001.
9. Final Demand Notice Messrs Marble and Marble Products Ltd. 1-C, 29, St. 5/5, Qasba Colony, Karachi.
10. Subject: Recovery of Energy Dues.
11. Consumer No,BL-1365 Account No,67540317 Rs,3360771.8 Dear Sir, You are hereby informed through this written demand that Rs .33,60,771.8 are outstanding against the subject meter, which you have neglected to pay in spite of all of our efforts.
12. This is, therefore, to give you Final Demand Notice to clear the above long pending dues within 7 (seven) days of the receipt of this communication, failing which we shall be constrained to refer the matter to the competent authority under section 54-A of the Electricity Act 1910 to enforcing recovery of these dues from you as arrears of land revenue.
13. Necessary payment slip is enclosed.
14. Thanking you, we remain, Yours faithfully, The Karachi Electric Supply Corporation Limited (Sd.) Zonal Controller Billing Industrial and Mis. Site Zone.
15. By T.C.S. Ref. No,ZCB/IMZ/2001/S-/5794/2001 Dated 11-12-2001.
16. Final Demand Notice Messrs Classic Marble Ltd. 1-C, 92, St. 5/5 Qasba Colony, Karachi.
17. Subject: Recovery of Energy Dues.
18. Consumer No,BL-1178 Account No,67546318 Rs,21,14,195.96 Dear Sir, You are hereby informed through this written demand that Rs,21,14,195.96 are outstanding against the subject meter, which you have neglected to pay in spite of all of our efforts.
19. This is, therefore, to give you Final Demand Notice to clear the above long pending dues within 7 (seven) days of the receipt of this communication, failing which we shall be constrained to refer the matter to the competent authority under section 54-A of the Electricity Act 1910 to enforcing recovery of these dues from you as arrears of land revenue.
20. Necessary payment slip is enclosed.
21. Thanking you, we remain, Yours faithfully, The Karachi Electric Supply Corporation Limited (Sd.) Zonal Controller Billing Industrial and Mis. Site Zone.
22. The petitioners, consequently, challenged the legality of the aforesaid final demand notices through Constitutional Petition No,D-2504 of 2001 and this Court vide its order dated 14-12-2001 as an interim measure suspended the said demand notices and ordered the restoration of electricity.
23. However, on 10-9-2003 the petition was withdrawn by making a statement that the petitioners have approached the Electrical Inspector for resolution of dispute arising from the impugned demand notices. It is further the case of the petitioners that despite settlement of dispute as to arrears, the respondents malafidely again on 28-4-2005 issued following five final demand notices under section 24(1) of the Electricity Act, 1910 calculated on the basis of a void order dated 1-7-2001 passed by Secretary, Irrigation and Power, Government of Sindh, under section 26(6) of Electricity Act, 1910 in respect of all the five meters which they have challenged by way of this petition. The demand notices are as follows:-- The Karachi Electric Supply Corporation Ltd.
24. Ref: No,DCCB/IMZ/S/05/2805 Dated: 28-4-2005 Final Demand Notice Under Section 24(1) of the Electricity Act 1910 Messrs Marble and Marble, Plot No,TD-ST: 14 Sector 5, Qasba Metrovill, Karachi.
25. Subject: Recovery of Energy Dues Rs,30,89,841.00 Cons. No,BL-1344 A/C No,255016540384
(1) You have not paid the above amount on the pretext of interim orders in various proceedings filed by you, the above demand together with unpaid portion of current bills was reflected as `Disputed Arrears' in your monthly bills for the last about four
(4) years.
(2) As all interim orders have now been vacated, we have reviewed your account and corrected the disputed arrears to only Rs,3,08,984.
(3) This is, therefore, to give you final notice to clear the above long pending dues within 7' (seven) days of the receipt of this communication, failing which we shall be constrained to disconnect your electric supply under section 24, subsection (1), of the Electricity Act 1910.
4. Necessary bill is enclosed for your convenience. Thanking you, we remain, Yours faithfully, The Karachi Electric Supply Corporation Limited (Sd.) The Karachi Electric Supply Corporation Ltd.
26. Ref: No,DCCB/IMZ/S/05/2807 Dated: 28-4-2005.
27. Final Demand Notice Under Section 24(1) of the Electricity Act 1910 Mrs. Hanifa Suleman, Plot No,TC-92, Qasba Colony, Metrovill, Karachi.
28. Subject: Recovery of Energy Dues Rs,22,80,909 Cons. No, BL-1178 A/C No,255016546216
(1) In accordance with SIP orders dated 1-7-2001, a demand of Rs,21,14,196, has been raised against you vide Final Demand Notice dated 11-12-2001.
(2) While you did not pay the demand amount on the pretext of interim orders in various proceedings filed by you, the above demand together with unpaid portion of current bills was reflected as 'Disputed Arrears' in your monthly bills for the last about four (4) years.
(3) As all interim orders have now been vacated, we have reviewed your account and corrected the disputed arrears to only Rs,22,08,909.
(4) This is, therefore, to give you final notice to clear the above long outstanding dues, within 7 (seven) days of the receipt of this communication, failing which we shall be constrained to disconnect your electric supply under section 24, subsection 1, of the Electricity Act 1910.
(5) Necessary bill is enclosed for your convenience.
29. Thanking you, we remain, Yours faithfully, The Kaitchi Electric Supply Corporation Limited (Sd.) Deputy Chief Controller Billing Industries (Site) S.M. Idrees, Deputy Chief Controller Billing A.M. Zone (SITE), The Karachi Electric Supply Corporation Ltd.
30. Ref: No,DCCB/IMZ/S/05/2806 Dated: 28-4-2005.
31. Final Demand Notice Under Section 24(1) of the Electric Act 1910 Messrs Marble and Marble, Plot No,TD-ST 14 Sector 5/5, Qasba Metrovill, Karachi.
32. Subject: Recovery of Energy Dues Rs,8,58,640 Cons. No,BL-1379 A/C No,2550167540330.
(1) You have not paid the above amount on the pretext of interim orders in various proceedings filed by you, the above demand together with unpaid portion of current bills was reflected as `Disputed Arrears' in your monthly bills for the last about four
(4) years.
(2) As all interim orders have now been vacated, we have reviewed your account and corrected the disputed arrears to only Rs,8,58,640 .
(3) This is, therefore, to give you final notice to clear the above long outstanding dues, within 7 (seven) days of the receipt of this communication, failing which we shall be constrained to disconnect your electric supply under section 24, subsection 1, of the Electricity Act 1910.
(4) Necessary bill is enclosed for your convenience. Thanking you, we remain Yours faithfully, The Karachi Electric Supply Corporation Limited (Sd.) Deputy Chief Controller Billing Industries (SITE) S.M.
33. Idrees, Deputy Chief Controller Billing A.M. Zone (SITE) The Karachi Electric Supply Corporation Ltd.
34. Ref: No,DCCB/IMZ/S/05/2804 Dated: 28-4-2005.
35. Final Demand Notice Under Section 24(1) of the Electricity Act 1910 Messrs Marble and Marble, Plot No,TD-ST; 14 Sector 5, Qasba Metrovill, Karachi.
36. Subject: Recovery of Energy Dues Rs,3,413,114 Cons. No, BL-1365 A/C No,2550167540314
(1) In accordance with SIP orders dated 1-7-2001, a demand of Rs,33,60,772 has been raised against you vide Final Demand Notice dated 11-12-2001.
(2) While you did not pay the demand amount on the pretext of interim orders in various proceedings filed by you, the above demand together with unpaid portion of current bills was reflected as 'Disputed Arrears' in your monthly bills for the last about four (4) years.
(3) As all interim orders have now been vacated, we have reviewed your account and corrected the disputed arrears to only Rs,3,413,114
(4) This is, therefore, to give you final notice to clear the above long outstanding dues, within seven
(7) days of the receipt of this communication, failing which we shall be constrained to disconnect your electric supply under section 24, subsection (1), of the Electricity Act 1910.
(5) Necessary bill is enclosed for your convenience. Thanking you, we remain, Yours faithfully, The Karachi Electric Supply Corporation Limited (Sd.) Dy. Chief Controller Billing Industries (SITE) S.M. Idrees, Deputy Chief Controller Billing, A.M. Zone (SITE) The Karachi Electric Supply Corporation Ltd.
37. Ref: No,DCCB/IMZ/S/05/2808 Dated: 28-4-2005.
38. Final Demand Notice.
39. Under section 24(1) of the Electricity Act 1910 Messrs Marble and Marble, Plot No,TD-ST; 14 Sector 5, Qasba Metrovill, Karachi.
40. Subject: Recovery of Energy Dues Rs,28,25,553 Cons. No,BL1375 A/C No,2550167546312
(1) In accordance with SIP orders dated 1-7-2001, a demand of Rs,20,23,407 has been raised against you vide Final Demand Notice dated 11-12-2001.
(2) While you did not pay the demand amount on the pretext of interim orders in various proceedings filed by you, the above demand together with unpaid portion of current bills was reflected as 'Disputed Arrears' in your monthly bills for the last about four (4) years.
(3) As all interim orders have now been vacated, we have reviewed your account and corrected the disputed arrears to only Rs,28,25,553
(4) This is, therefore, to give you final notice to clear the above long standing dues, within seven (7) days of the receipt of this communication, failing which we shall be constrained to disconnect your electric supply under section 24, subsection 1, of the Electricity Act 1910.
(5) Necessary bill is enclosed for your convenience. Thanking you, we remain, Yours faithfully, The Karachi Electric Supply Corporation Limited (Sd.) Dy. Chief Controller Billing Industries (SITE) S.M. Idrees, Deputy Chief Controller Billing A.M. Zone (SITE)
41. On the other hand, Mr. Khalid Mehmood Siddiqui, learned counsel for the respondent, has filed a detailed counter-affidavit on behalf of respondent-KESC and has placed before us a list of cases along with copies of plaints/petitions filed against the respondent, the total whereof has reached the figure of 41 which includes sixteen suits, twelve constitutional petitions, two High Court appeals, four execution applications and seven Criminal Miscellaneous Applications. The facts disclosed in the counter-affidavit and the scrutiny of documents on record reveal that on 18-6-1998 the petitioners were issued disconnection notices on account of the outstanding dues amounting to Rs,32,41,007 which demand was challenged by the petitioners by filing Suit Nos,873 and 874 of 1998.
42. The matter, ultimately, was referred to Electric Inspector Karachi (EIK) who directed revision of past bills. His order was maintained by Secretary, Irrigation and Power and ultimately the said suits were decreed and the petitioners filed execution applications bearing Nos,30 and 31 of 2001 and since the respondents were not accepting the amount worked out and was found payable as such the petitioners filed C.P No,D-1041 of 2001 wherein this Court directed the restoration of electricity upon payment of worked out liability. In this manner the first round of controversy came to an end.
43. The second controversy, the subject-matter of present petition, as is evident from record, commenced when on 10th February, 2001 before the first part of controversy could finally settle the petitioner's premises were raided and massive electric theft was detected .giving rise to registration of F.I.R. Nos,26 and 27 of 2001 and issuance of supplementary bill/demand notices on the basis of 24 hour per day working. The petitioners challenged the demand through suit bearing Nos,335 and 336 of 2001 which were referred to EIK who ordered the preparation of bills on the basis of 12 hours per day working. However, the respondents challenged the decision of EIK before SIP who directed preparation of supplementary bill on the basis of 18 hours per day working vide its order dated 1st July 2001. It is also important to note that before the S.I.P. could .pass any order the petitioners in June, 2001 filed Suit bearing No,841 of 2001 seeking a declaration that since the dispute between the parties was settled by way of Execution Applications bearing Nos,30 and 31 of 2001, therefore, the notices issued by S.I.P. for adjudication are uncalled for and the S.I.P. be restrained permanently to entertain the dispute. Since no restraining orders were passed as such S.I.P. vide its order dated 1-7-2001 decided the matter.
44. The respondents, consequently, computed the liability of the petitioners in terms of said order and on 11-12-2001 issued final Demand Notices. The petitioners, thereafter, on 12-12-2001 unconditionally withdrew the said suit and on the next day i,e, on 13-12-2001 filed a Constitutional Petition bearing No,D-2504 of 2001 before this Court challenging the validity of aforesaid three final demand notices dated 11-12-2001, inter alia, on the ground that the aforesaid demand notices are computed on the basis of void ab initio order dated 1-7-2001 passed by S.I.P. and further linked the issuance of these demand notices with the first round of litigation which had settled upon payment of Rs,5,98,863 and restoration of electricity and sought the following prayer:--
(i) A declaration be given that the purported Final Demand Notices dated 11-12-2001 have been issued in an arbitrary manner and not in accordance with law, the same are void.
(ii) Permanent mandatory injunction may be granted against the respondent K.E.S.C., directing them not to restore the Electricity of all the five consumers/Meters Nos, BL-001344, BL-001365, BL- 001379, BL-001175 and BL-001178.
(iii) Restrain the respondent K.E.S.C. from initiating any proceedings under section 54-A of the Electricity Act for enforcing recovery of the said dues as arrears of land revenue as the matter has already been settled by the Honourable High Court vide order dated 17-7-2001 passed in Constitutional Petition No,1041 of 2001 and accordingly acted upon by the parties in dispute on 24- 7-2001.
(iv) Any other relief deemed fit and proper in the circumstances of the case.
45. The petitioner, after enjoying interim relief granted by this Court for almost two years on 10-9-2003 withdrew this petition by making a statement that the petitioners have approached the Electric Inspector for resolution of the dispute arising from the aforesaid Demand Notices through the petitioners were well aware that the dispute pertaining to the said Demand Notices was already adjudicated upon by the EIK as well as S.I.P. and the order dated 1st July, 2001 passed by S.I.P. was in field, and their attempt to restrain the S.I.P. from passing order dated 1-7-2001 stood failed. C.P.
46. No,D-2504 of 2001 was withdrawn and the matter was referred to EIK who had no option but to hold that he has already disposed of this dispute vide his order dated 25-4-2001 which was challenged before S.I.P. who also decided the dispute vide its order dated 1-7-2001.
47. The petitioners, during the pendency of aforementioned petition, yet filed another Petition bearing No,D-1902 of 2002 whereby the petitioners not only challenged the F.I.Rs, bearing Nos,26 and 27 of 2001 but also challenged the demand raised in consequence thereof. The petition, however, was not pressed and consequently was dismissed vide this Court's order dated 20-2-2003.
48. The petitioners, further, through C.Ps. Nos, D-108, D-197 and D-545 of 2003 challenged the raid conducted on 10-2-2001 and the F.I.Rs, bearing Nos,26 and 27 of 2001 registered in consequence thereof. The Petition bearing No,108 of 2003 was dismissed on merits whereas the rest of the two petitions were dismissed as not pressed.
49. Thereafter, petitioners filed Suit bearing No,773 of 2003 challenging the rational on the basis of which demand bill was raised since January, 2001 in respect of all the aforesaid five electric meters.
50. The suit ultimately was sent to EIK for adjudication but subsequently the petitioners withdrew the same.
51. Thereafter, the petitioner filed Suits bearing Nos,1211 and 1212 of 2003 and in both the suits the petitioner made the following common prayer:--
(i) To declare that the order dated 1-7-2001 passed by the learned defendant No,1 modifying the order of learned Electric Inspector dated 25-4-2001 is ab initio void, bad in law and same be set aside.
(ii) Further declare that there is nothing due against the plaintiff to the defendant No,l.
(iii) Permanently restrain the defendant No,1 from taking any action detrimental to the plaintiff;
(iv) Grant damages to the tune of Rs,10 million (ten million) for the losses sustained by the plaintiffs besides the damage credibility of the plaintiffs in the market;
(v) Any other relief deemed fit and proper in the circumstances of the case.
52. The petitioners along with the said suits filed an application seeking suspension of order dated 1-7- 2001 passed by S.I.P. which application was ultimately dismissed vide order dated 18-3-2005. The petitioners, thereafter, filed High Court Appeals bearing Nos,92 and 93 of 2005 against the dismissal of their said application which appeals were also withdrawn by them on 4-5-2005.
53. It appears that since the petitioners were not able to get any interim relief in Suit Nos,1211 and 1212 of 2003, they, during the pendency of said suit, against filed Suits bearing Nos,115 and 116 of 2004 on 7- 2-2004 wherein the raid conducted on 10-2-2001 by the respondent upon the factories of the petitioners was challenged and was prayed that the respondent be restrained from disconnecting the electric supply of the petitioners. Initially the respondents were restrained from disconnecting the electricity of the petitioners, however, on 18-3-2005 the suits were dismissed as not pressed with the specific order that the petitioners would not file any fresh suit on the basis of same cause of action. Despite, the petitioners filed suit bearing Nos,471 and 472 of 2005 on 6th April, 2005 for declaration permanent injunction and rendition of accounts. These suits were filed upon receipt of demand from respondent in respect of huge arrears lying unpaid. When the application for interim relief came up for hearing before the learned Single Judge of this Court, he vide his orders dated 11- 5-2005 not only dismissed the application for interim relief but the entire suit as well. The following portion of the order is very relevant to decide the fate of this petition, which is reproduced below:-- "Plaintiff has in all filed 28 cases impugned the raid, criminal prosecutions, since the date of decision of Secretary dated 1-7-2001, which decision has attained finality on expiry of period of 1 year in term of Article 14 of the Limitation Act. In none of the 28 cases, plaintiff was able to obtain any order on merits in his favour.
54. In view of the foregoing, both the suits on the face of it are frivolous beside vexatious and are nothing but gross misuse of the process of law. Not only listed applications but the suits are dismissed with exemplary costs of Rs,50,000 in each."
55. Keeping in mind the volume of litigation, we had asked Mr. H.A. Rehmani to satisfy us as to the maintainability of this petition specially in view of relief sought in pending Suits bearing Nos,1211 and 1212 of 2003 wherein the petitioners have challenged the order of S.I.P. dated 1st July, 2001. In the present petition, the petitioners have also challenged the validity of final demand notices computed on the basis of order dated 1st July, 2001 passed by the S.I.P.
56. Mr. H.A. Rehmani, during his arguments has raised the following points:--
(i) The cause of action for the purposes of filing present writ petition has accrued in April, 2005 when three "Final Demand Notices" dated 28-4-2005 computed on the basis of order dated 1st July, 2001 were issued and two Demand Notices of the same date were issued arbitrarily whereas cause of action for filing the suits bearing Nos,1211 and 1212 of 2003 was order dated 1-7-2001 and further pendency of suit cannot prevent the petitioners from invoking the constitutional jurisdiction of this Court and in support of his contention he has relied on the case of Salahuddin and 2 others v.
57. Frontier Sugar Mills and Distillery Ltd. and others PLD 1975 SC 244.
(ii) Since the order dated 1st July, 2001 is void ab initio and can be ignored on the basis of dictum laid down in the case of Syed Wajihul Hassan Zaidi v. Government of Punjab 1997 SCM R 1901.
58. Consequently there was no basis for computing the impugned Demand Notices. Thus, they are required to be declared void.
59. Taking up the first contention of Mr. H.A. Rehmani, we have confronted him with three "Final Demand Notices" issued on 11th December, 2001, by the respondent for exactly the same amount as one impugned in the present petition and have asked him as to whether the impugned Final Demand Notices dated 28th April, 2005, are not the same as were issued on 11th December, 2001, but could not be enforced as the same were suspended by this Court in different suits and petitions instituted by the petitioner challenging the validity of the said Demand Notices or the order dated 1-7-2001, passed by S.I.P., on the basis of which the said Demand Notices were computed. Mr. Rehmani was not able to controvert this position as the record produced and examined by us establishes beyond any scintilla of doubt that after the dispute was finally adjudicated by S.I.P. vide its order dated 1st July, 2001, the respondent computed the supplementary bill in accordance with said order and raised demand by issuance of Final Demand Notice dated 11th December, 2001. The petitioner, thereafter, not only challenged the legality of order dated 1-7-2001, but also the Final Demand Notices dated 11-12-2001, by filing different suits and petitions, consequently the Final Demand Notices remained suspended through orders of this Court till 18th March, 2005. No sooner the last suspension order was vacated by this Court, the respondent raised the same demand by issuing impugned Demand Notices. Consequently, the argument of Mr. H.A. Rehmani that the cause of action for filing this petition has accrued in April, 2005, is without substance, and therefore, cannot be accepted.
60. As to the second part of his argument that the present petition is maintainable despite pendency of suit, in view of the judgment in the case of Salahuddin v. Frontier Sugar Mills and Distillery Limited and others (supra), we have examined the said case and found it totally different and distinguishable than the one in hand. In the said case one Salahuddin had filed a suit on 7th June, 1972, inter alia, seeking permanent injunction against the holding of the requisitioned meeting on 15th June, 1972, along with the said suit an application for temporary injunction was filed which was, however, dismissed. Thereafter on 4-7-1972 an appeal was filed before the Peshawar High Court which appeal was also dismissed on 9-3-1973, and thereafter an appeal was filed before the Supreme Court. On the other hand during the pendency of appeal before the High Court Salahuddin on 24-11-1972 filed a writ petition in the Peshawar High Court, praying for a declaration that the proceedings of the Extraordinary General Meeting of the shareholders of the Company held on 15th June, 1972, resulting in his removal from the office of Managing Director and the election of the respondent in their places was without jurisdiction and of no legal effect. This petition did not find favour with the Peshawar High Court on the ground that the company was not a person performing function in connection with the affairs of the Province accordingly not amenable to the issuance of a writ. The learned Judges observed that the writ was, in fact sought against private persons and further that since appellant had already invoked an adequate alternate remedy by filing a civil suit, seeking practically the same relief, consequently the writ was denied. The appellant Salahuddin filed an appeal against the dismissal of the writ petition before the Supreme Court. The appeals arising out of the suit as well as the petition came up before the Supreme Court wherein it was held that a public Limited 'Company cannot ordinarily be regarded as a person performing function in connection with the affairs of the Federation, a Province or a local authority simply for the reasons that its function is regulated by a statute; yet nevertheless the office held by its Directors and its Chief Executive which term would include a "Managing Director" must be regarded as public officers in as much as they invoke the performance of public duties. As a consequence it was held that although a joint stock company may not be amenable to the issuance of a writ but. its Director and the Chief Executives are within the purview of writ jurisdiction and consequently a writ in the nature of quo warranto could have been issued under clause (2)(b)(ii) of. Article 20.1 of the interim Constitution of Pakistan (1972).
61. It was further observed that the learned judges in the High Court were not right in refusing relief merely on the ground that the appellant had already filed a civil suit, specially, when, on the factual plain, the suit had failed to provide an adequate alternate remedy to the appellant.
62. It is pertinent to note that in the case relied upon by Mr. Rehmani the suit filed was to forestall the holding of a meeting and upon refusal of the interim relief the suit was practically rendered infructuous and for this reason the Supreme Court also dismissed the appeal arising out of the suit whereas the petition was filed seeking issuance of writ in the nature of quo warranto though the prayer was not worded in this manner as observed by the Honourable Supreme Court. It is also evident that the cause of action for filing the suit and the petition in the said case were different.
63. The Honourable Supreme Court in the case of Muhammad Waris Ali v. Deputy Commissioner Sheikhupura 1999 SCM R 2380 has already settled the principle that where a suit was pending in Civil Court on the same subject-matter, the High Court was right in declining to interfere in the matter in its extraordinary constitutional jurisdiction and the said principle is applicable with full force to the facts of the present case, therefore, we hold this petition incompetent on account of pendency of civil suits before this Court on the same subject and same cause of action.
64. Additionally, the present case the petitioners have filed number of suits and petitions on the same cause of action and thereafter have withdrawn the same without permission of the Court. We invited the attention of Mr. H.A. Rehmani to the prayer contained in Petition No,2504 of 2001, which is exactly the same as contained in the present petition except date of the Final Demand Notices and asked him to satisfy us as to whether the general principles contained in the Code of Civil Procedure are applicable to the constitutional jurisdiction of this Court and if so whether this petition on account of withdrawal of C.P. No,D-2504 of 2001 would not be incompetent by virtue of bar contained in sub-rule 3 of Order XXIII of C.P.C. Mr. Rehmani conceded to the application of Code of Civil Procedure to the proceedings in hand but insisted that the present petition has been filed on a different cause of action as the demand challenged in that petition was raised by Final Demand Notices dated 11-12-2001, whereas in the present petition the petitioners have challenged Final Demand Notice dated 28-4-2005. We have already discussed in detail and have held that both demands raised by notices dated 11-12-2001 and 28-4-2005 are the same and in three demand notices dated 28-4-2005 specific reference has been made to notice dated 11-12-2001.
65. We therefore, following the dictum laid down by the Supreme Court in the case of Hussain Bakhsh v. Settlement Commissioner Rawalpindi PLD 1970 SC 1 that the Code of Civil Procedure regulates the civil proceedings and the nature of the proceedings does not necessarily depend on the nature of the jurisdiction of the Court invoked. If the proceedings involve the enforcement of a civil right it is a civil proceeding and the provisions of Code of Civil Procedure other than the specially excepted one, shall apply in the exercise of High Courts jurisdiction in a civil matter, whatever may be the nature of that jurisdiction, hold the present petition barred under sub rule 3 of rule 1 of Order 23 of Code of Civil Procedure as well.
66. As to the second argument of Mr. Rehmani that the order dated 1st July, 2001, is void ab initio and can be ignored and consequently the impugned Final Demand Notice computed on the basis of this order would fall automatically. This argument cannot find favour with us simply for the reason that the order dated 1-7-2001, was unsuccessfully challenged by the petitioner in different suits and petitions, which were withdrawn. However, in suits Nos,471 and 472 of 2005 a single Judge of this Court while dismissing the said suits had held that the order dated 1-7-2001 has attained finality which still holds the field. Besides the petitioner had challenged this order in C.P. No,D-2504 of 2001 as well which petition was withdrawn by the petitioners in order to seek their remedy before the EIK knowing well that EIK as well as S.I.P. have already decided the matter. The petitioner, therefore, cannot be allowed to be agitating the same plea again and again otherwise there would be no end to the litigation. For the foregoing reasons we do not find any substance in the present petition and the same is dismissed.