' KHALID ALI Z. QAZI, J.---Through the instant suit the plaintiffs have sought the following prayers:-- "(a) Declare that the plaintiffs are the owners of the said property namely, piece and parcel of land bearing Plot No,Q.R.9/4, Old Survey No,4, admeasuring about 3318 square yards with building thereon situated on Moulvi Tamizzuddin Khan Road, District West, Karcahi.
(b) Direct the respondent No,2 to cancel the Mutation made in favour of Defendant No,1 regarding the said property in survey records and enter the name of the plaintiffs as owners of the said property, namely, piece and parcel of land bearing Plot No . Q .R. 9/4 Old Survey No,4, admeasuring about 3318 Square Yards with building thereon situated on Moulvi Tamizuddin Khan Road, District West, Karachi.
(c) Possession of property on Plot No, R/9/4, Old Survey No, admeasuring 3318 Sq. Yds. With building thereof situated at Moulvi Tamizuddin Khan Road, District West, Karachi, may be delivered to the plaintiffs and the defendant No,1 or any other person claiming through or under him may be ejected therefrom.
(d) Prohibit and restrain the Defendant No,1 from changing the present position of the property, parting with possession of creating any other account of encumbrance over the said property directly or indirectly, themselves or through any other agency by any process in any manner whatsoever.
(e) Any other relief(s) to grant to the plaintiffs, which this Honourable Court deems fit and proper in the circumstances of the case.
(f) Defendants to bear cost of this suit."
2. The brief facts giving rise to the present suit are that the plaintiffs have claimed to be the owner of Property bearing No,Q.R. 9/4, Old Survey No,4, admeasuring about 3318 Square Yards with building thereon situated on Moulvi Tamizuddin Khan Road, District West, Karachi (hereafter referred to as "the suit property"). According to the plaintiffs, their late father Ahmed Adam had acquired the suit property through public auction on 12-8-1960 for a sum of Rs,385,400 while such auction was approved by the Settlement Commissioner on 9-11-1960, where after a Provisional Transfer Order No, 12234 dated 14-11-1961 was issued and thereafter on 27-1-1962 a Permanent Transfer Order was issued in favour of the plaintiffs' father. It is alleged by the plaintiffs that their father died in 1972, while some time in 1992 when the plaintiffs approached the concerned office of the CDC to get their names mutated, it was disclosed to them that the suit property stood already mutated in the name of one Mst. Kulsum Bai.
3. At this juncture the plaintiffs claimed to have conducted inquires wherefrom it was revealed that on 9-12-1947 the suit property was acquired by the said Kulsum Bai through a registered conveyance deed in which sellers were Hindu owners, namely Khemchand Ratanchand, Gurbux Premsingh and Narendra Nath Gupta; this sale was confirmed initially through the order of the then Additional Custodian (Judicial) Evacuee on 12-5-1950 (in Case No,2002/1949), which was made in pursuance of a statement of one Ghulam Hussain, who testified on oath that the sale deed was executed between Kulsum Bai and the Hindu owners in his presence. However, later (as suggested by the plaintiffs) the same Ghulam Hussain filed a Miscellaneous Application No,B/152 of 1950 before the Custodian, Evacuee Property, Karachi wherein he swore an affidavit to the effect that his earlier statement was based upon some pressure from his previous employer Mr. A.M. Peer Mohammad and that the sale-deed between Kulsum Bai and the Hindu owners dated 9-12-1947 was forged and fabricated upon such statement and due to the nonappearance of the said Mr. A.M. Peer Mohammad, the plaintiffs have alleged that the Custodian, Evacuee Property vide order dated 14-12-1950 set aside the order of the Additional Custodian (Judicial) dated 12-5-1950 passed in the Case No,2002/1949, whereafter the suit property became an Evacuee Property and the persons in possession thereof by operation of law became the tenants of the Custodian.
4. The plaintiffs have further alleged that Kulsum Bai died leaving a will dated 1-2-1986, while in the year 1989 Rajab Ali Hemani and Abdul Hameed Kadwani being the purported executors of the will of the said Kulsum Bai without disclosing the order of Custodian dated 14-12-1950, whereby right of Mst. Kulsum Bai in respect of the suit property had been taken away, filed SMA No,166/1989 before this Honourable Court seeking a probate of the said will, inter alia, in respect of the suit property.
The said application was granted by this Court on 8-10-1989, while under the will in question dated 1-2-1986 Mst. Kulsum Bai had bequeathed the suit property to the defendant No,1, who according to the plaintiffs got into possession of the suit property, through the above named executors of the will on 25-12-1989. According to the plaintiffs, the defendant No,1 have been able to seek mutation of the suit property in his name of strength of the probate of the will granted by this Court in S.M.A.
166/1989.
5. The plaintiffs have also claimed that after coming into notice of the order of the probate of the will, they filed the present suit immediately so also moving an application bearing C.M.A. No, 1790/1992 in SMA No,166/1989 seeking cancellation of the order of probate dated 25-12-1989 on the ground that the same has been obtained by practicing fraud upon the High Court. The said application was disposed of vide a consent order dated 11-11-1992 wherein the probate granted by this Court in SMA 166/1989 in respect of the suit property was linked with the outcome of the present suit. In other words, the order of probate granted in SMA 166/1989 was to stand varied in terms of judgment or decree that would be passed in the present suit.
6. The defendants No,1 is the main contestant. The defendants Nos. 2 and 3 are the official defendants and the defendants Nos.4 to 6 were the tenants of the suit property.
7. In contrast, the defendant No,1 has alleged that the so-called Miscellaneous Application No,B/152 of 1950 and the consequent order of the Custodian dated 14-12-1950, and the entire official file in respect thereof, are forged and fabricated. The defendant No,1 has additionally alleged that all along the suit property remained in the possession of his late mother ' Mst. Kulsum Bai and then the same came into his possession, while throughout they have been dealing with the suit property, including and not limited to the collection of rent.
8. On the pleadings, this Court on 26-11-1992 was pleased to frame the following issues : - "
1. Whether the suit is barred by limitation?
2. Whether the suit is bad for misjoinder and non-joinder of parties?
3. Whether the suit is not maintainable?
4. Whether Kulsumbai was not and after her death defendant No,l is not the lawful owner of the property in question as alleged?
4. Whether Kulsumbai and after her death defendant No,1, exercised all powers of ownership over the property openly and adversely to the world from the date of purchase till the filing of the suit without protest from plaintiffs' father or plaintiffs? If so what is the effect?
5. Whether Custodian Evacuee Property passed alleged order dated 14-12-1950 declaring the property in question as evacuee? If so, what is its effect?
6. Whether the father of the plaintiffs acquired the property as alleged and valid permanent transfer order dated 27-1-1962 was passed in his favour as alleged? If so, what is its effect?
7. Whether the probate of will of Kulsumbai was obtained fraudulently as alleged? If so, what is its effect?
8. What should the decree be?"
9. The plaintiffs examined Mustafa Ali Khan, Inspector, Evacuee Board as P.W.1, wile P.W.2 was the plaintiff No,1 i.e, Abdul Ghani. On behalf of the defendant No,1 his father-cum-attorney Anwer Hemani was examined.
11. I have heard the learned counsel for parties examined the record and the law on the subject. The parties also filed written synopsis apart from addressing oral arguments. In my considered opinion the pivotal issue in the matter is whether the order of the Custodian dated 14-12-1950 is a lawfully existent order or whether the same is a forged document? The rights of parties are essentially dependent upon the determination of this question. If the order of the Custodian dated 14-12-1950 is lawful and not tainted with fraud or forgery, the suit would be liable to be decreed, whereas if it is the other way round, then the suit would be liable to be dismissed. Issue No,6 dealing with this question is thus taken up first. Issue No,6
12. The issue No,6 reads as follows:-- "Whether the Custodian Evacuee Property passed the alleged order dated 14-12-1950 declaring the property in question to be Evacuee? If so, what is its effect?
13. The alleged order of the Custodian dated 14-2-1950 has been filed as Annex. A to the plaint. It has been signed by one "Akhtar Hussain" alleged to be the "Custodian E.P. Karachi, S & FC Karachi".
Interesting aspects are that the name of "Akhter Hussain" and his designation appear twice on this document (i.e, Annex A to the plaint) and in the second line of this alleged order no date has been mentioned in respect of the notice and also no date of filing the Miscellaneous application has been specified. At the relevant time it seems that there was no person by the name of Akhter Hussain who was the Custodian of Evacuee Properties. Finding themselves to be in a quandary the plaintiffs filed a certified copy of the same order dated 14-12-1950, which is at page 153 of the evidence filed, in which the name of the Custodian appears as "Akber Hussain". Although the certified copy is in respect of the alleged order of the Custodian dated 14-12-1950, the date of issuance of the said certified copy is shown as 19-6-1964. The non-mentioning of the notice date and the date of filing of the Miscellaneous Application (i.e, B/152 of 1950) seems to have been taken care of in A the certified copy since therein the notice date is specified as 7-6-1950, whereas the date of Miscellaneous application is shown to be 18-5-1950. The mentioning of the name "Akhtar Hussain" in the uncertified copy attached as Annex A to the plaint could not have been a mere typographical error, since such name appears twice on the document marked Annex A to the plaint. Again it has not been satisfactorily explained as to why the document which is attached as Annex A to the plaint does not bear the dated pertaining to notice and Miscellaneous Application, whereas the certified copy mentions such dates.
14. There is yet a fundamental impression that I have gathered after reading the alleged order dated 14-12-1950. The said order suffers from basic grammatical lapses, which a person of the stature of a Custodian in the 1950s could B not have committed. According to section 5 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, being Ordinance XV of 1949 (see PLD 1949 Central Statutes 378) (hereby referred to: "the 1949 Ordinance") the Custodian could only have been a person who had been a Judge of the High Court either in the British India, India or Pakistan. The alleged order dated 14-12-1950 could not have been drafted by a person who had been a Judge of the superior Courts in the 1950s. The said order is replete with grammatical mistakes, some of which can be appreciated from the reproduction of para 2 of the said order. "I suppose that due to non appearance of Mr. A.M. Pir Muhammad before this Court the validity of the execution of the said sale-deed in doubt (sic.) as previously the sale-deed was duly B confirmed by the Addl. Custodian (Judicial) on 12-5-50 on the basis of the statement of Mr. Ghulam Hussain (sic.), that it was executed before him, but now he deny (sic.) the facts and swear (sic.) on oath due to danger of his life he was forced to give the previous statement whereas he was also not a witness on the false sale-deed." The grammatical mistakes are pointed out by insertion of "sic." in the above excerpt. Even in the last paragraph of the said order, the declaration is given in the past tense whereas the same ought to have been given in the present tense.
15. Furthermore, it seems that the order dated 14-12-1950 has been passed by a Custodian (Judicial) of the Evacuee Property of Sindh and Federal Capital, whereas at that relevant time there was no C post or designation by the nomenclature of "Custodian (Judicial)". This notable paradox is again not explained by the plaintiffs.
16. It seems that the applicant of the Miscellaneous Application No,B/152 of 1950 was one Ghulam Hussain son of D Mohammad Ali who had given a statement before the Additional Custodian in case No,2002/1949 to the effect that the registered conveyance deed dated 9-12-1949 was executed in his presence between Kulsum Bai and the Hindu owners. There was no occasion for the said Ghulam Hussain, who later on came forward and said that his earlier statement was based upon coercion from his previous employer, to have given the new affidavit for the very simple reason that the said Ghulam Hussain was not claiming any right in the suit property. Why would any one come forward on his own volition to make a statement that his earlier statement on oath was incorrect, if he were not claiming any right in the property in question. The alleged order dated 14-12-1950 reveals that it was upon an application moved by the said Ghulam Hussain i.e, Miscellaneous Application No,B/152 of 1950 and not in view of a suo motu assumption of power by Custodian under section 36(4) of the 1949 Ordinance. Also the standard of proving the alleged coercion (as stated in the order dated 14-12-1950) was much higher than merely stating that the previous employer i.e, Mr. A.M, Peer Muhammad had pressurized him (i.e, Ghulam Hussain) earlier to give the wrong statement on oath. Interestingly, this alleged Miscellaneous Application B/152 of 1950 was made by Ghulam Hussain along with an affidavit filed in support thereof. No such affidavit is available in the file of the said Miscellaneous Application which is exhibit 1/17. The entire series of transactions narrated by the plaintiffs fall to the surface considering that the said Ghulam Hussain upon whose affidavit the alleged order dated 14-12-1950 was passed, continued to be the Rent Controller/Manager of the Property on behalf of Mst. Kulsum Bai till his death in 1982. This is borne out from the admissions made by the tenants in their written statements filed in various proceedings in opposition to Kulsum Bai/Defendant No,1 as landlady/ lord, (see exhibit 3/30 to 3/34).
17. Mr. Faisal Kamal has placed reliance upon sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation), Act 1958 (hereafter: "the 1958 Act") for the contentions that since the alleged order of the Custodian dated 14-12-1950 had not been challenged by Kulsoom /Bai or the Defendant No,1, the same had attained finality; and also that no civil Court has the jurisdiction to call into question any order that may be passed under the Act. In this regard he has placed reliance upon Muhammad Sarwar v. Muhammad Ali 2002 SCMR 829. I am afraid these arguments have no force for the simple reason that the bar against the finality of orders and ouster of jurisdiction are only applicable in respect of lawful E orders passed under the statute and not orders which are forged and fabricated. In this case, as already held above, the alleged official order of the Custodian dated 14-12-1950, produced by the plaintiffs, is a forged document. If at all these are any authorities needed in support, only may cite the case of Abbasia Cooperative Bank v.
Muhammad Ghaus PLD 1997 SC 3 for the point that orders extraneous to the statute do not oust the jurisdiction of the Civil Court and Abdul Rauf v. Abdul Hamid PLD 1965 SC 671 for the point that the ouster of jurisdiction can only be inferred in respect of orders passed "under the statute", the latter term referring to only those orders which could be lawfully passed under the Act. If unlawful orders do not oust the jurisdiction of civil Courts, one cannot imagine as to how forged and fabricated orders could oust the jurisdiction of civil Courts.
18. Mr. Faisal Kamal has also referred to the judgment reported as Muhammad Raghib v. Abdul Razzak PLD 1994 Karachi 20 for the point that only lawful possession is protected under the Settlement Laws and that the possession of a trespasser would have no sanctity. I am afraid the judgment is hardly helpful to the plaintiffs, since I have already concluded that the alleged order of the Custodian dated 14-12-1950, as relied upon by the plaintiffs, is a forged document. This means that Kulsum Bai or the defendant No,1 is the rightful owner; hence their possession cannot be termed as unlawful.
19. In light of above discussion, I have no hesitation to hold that the so-called order dated 14-12- 1950 claimed by the plaintiffs to have been passed by the Custodian on the alleged Miscellaneous Application B/152 of 1950 along with the entire file produced by P.W.1 Mustafa Ali Hamid of the said Miscellaneous Application are forged and fabricated. Accordingly, the issue No,6 is answered in the negative.
Issue No,4
20. After having determined the issue No,6, in my considered opinion it will now be proper and germane to determine issue No,4 which reads as follows:-- "Whether Mst. Kulsum Bai was not and after her death the defendant No,1 is not the lawful owner of the property in as alleged?"
21. The defendant No,1 has produced the following documents which confirm that since 1947 till the filing of this case Kulsum Bai and thereafter the said defendant No, 1 were dealing with the suit property. These documents are as follows:--
(a) Registered Sale-Deed dated 9-12-1947 (Exh.3/3);
(b) Original Sanad dated 8-10-1894 (Exh.3/4);
(c) (c) Sale confirmation order of 12-5-1950 passed by Additional Custodian (Judicial), E.P Sindh and Federal Capital Karachi (Exh.3/5);
(d) NOC from Income Tax Department dated 8-5-1950 (Exh.3/8);
(e) Rent case by an old tenant Hamid Khalil against Kulsumbai admitting Kulsumbai as the owner/landlady;
(f) Will of Kulsumbai duly probated (Exh.3/27);
(g) PT-4 showing Kulsumbai as owner (Exh.3/10);
(h) Property tax paid by Kulsumbai (vide challans for years 1964-65, 1972-73 and 1977-78 (Exh.3/11, 3/12 and 3/13);
(i) Wealth tax order 1975-76 Exh.3/14;
(j) Plaint in suit filed by Kulsumbai against tenant, Ansar Nasri Exh.3/15;
(k) Certified copy of decree by Mr. Justice Inamullah showing Kulsumbai as owner Exh.3/16;
(1) Court notice published in newspaper in respect of Rent case by Kulsumbai against D.R. Minwala Exh.3/17;
(m) KMC notice dated 24-12-1958 Pir Muhammad, Attorney Kulsimbai Exh. 3/18.
(n) Extract of property dated 27-9-1973 showing Kulsumbai as owner Exh.3/20;
(o) Letter of Pir Muhammad, attorney of Kulsumbai dated 18-9-1971 asking Secretary Communication Ministry if he could collect rent in respect of properties of Kulsumbai Exh.3/24;
(p) Letter of Ministry of Communication dated 13-11-1971 Exh.3/25 stating no objection;
(q) Letter of Ministry of Communication dated 11-3-1972 Exh. 3/26;
(r) Extract dated 1-1-1990 showing Ahmed Hemani as owner Exh.3 /28;
(s) PT-1 dated 7-1-1990 showing Ahmed Hemani as owner Exh.3/29;
(t) Five (5) written statements filed by tenants/occupants in cases instituted by Defendant No,1 admitting Kulsumbai as landlady Exh.3/30, 3/31, 3/32, 3/33 and 3/34;
(u) Property tax challans for the year 1989-90 in the name of Defendant No,1 Exh.3/35;
(v) Demolition notice of KBCA dated 4-11-1991 addressed to Defendant No,1 as owner of the property.
22. The plaintiffs have not been able to show as to how the above series of documents were forged or fabricated.
' The burden was on them, which they failed to discharge. In particular reference is invited to the Court notice published in the newspaper (Exh.3/17). The Custodian of the Evacuee Property/Trust Board never came forward to contest the ownership of Mst. Kulsum Bai despite the said Court K notice published in the press. The reason for this was simple. Since Mst. Kulsum Bai was the rightful owner, there was no need to come forward. Exhibit 3/6 is a decree passed by Justice Inam Ullah, J., as he then was, showing Mst. Kulsum Bai as the' owner of the suit property.
23. Mr. Faisal Kamal has attempted to show that the alleged conveyance deed dated 9-12-1947 did not bear the signature of the vendee i.e, Mst. Kulsoom Bai on its last page. This contention has no force because the conveyance deed was executed by Kulsoom Bai through an attorney i.e, Mr. A.M.
Peer Mohammad. Thus the conveyance deed bore the signature of the attorney and not the vendee. Again a feeble attempt is made by the learned counsel for L the plaintiffs to show that the Bombay address of Mst. Kulsoom Bai is not given in the power of attorney executed by her. On the strength of this argument the plaintiffs have stated that a suspicion is created on the power of attorney in favour of A.M. Peer Muhammad and also that if there was such an urgency to execute the power of attorney the same could have been executed at Karachi and not at Bombay. I am afraid, these arguments are based upon presumption and nothing boils down thereon. These arguments are inconcrete. In any event, these arguments are in oblivion to an elementary legal principle that a M power of attorney can only be challenged by the principal and not a third party (see Khayam Films v. Bank of Bahawalpur 1982 CLC 1275, Qadir Bakhsh v. Ghulam Moeenuddin 1994 CLC 1949 and Sadiq Ali Khan v. Abdur Rehman 1995 CLC 977).
24. Thus I have no hesitation to hold that at all material times Mst. Kulsum Bai was the rightful owner of the property whereafter the defendant No,1 inherited the property. Thus issue No,4 is answered in the negative. Issue No,5
25. The issue No, 5 reads as follows:-- "Whether Kulsoom Bai and after her death the defendant No,1, exercised all powers of ownership over the property openly and adversely to the world from the date of purchase till the filing of the suit without protest from plaintiffs' father or plaintiffs? If so, what is the effect?"
26. The Defendant No,1 did not press this issue since according to his learned counsel the same is covered by issues Nos.6 and 4, discussed above. However, the learned counsel for the plaintiffs have chosen to address this issue in the written arguments submitted by him. In such written arguments it has been contended that since the conveyance deed dated 9-12-1947 and the alleged power of attorney dated 19-12-1947 are fraudulent documents, any actions based thereupon are void for the reason that where the basic order is illegal the entire superstructure based upon the illegal order is also illegal. For such purpose reliance is placed by the plaintiffs on PLD 1958 SC (Pak) 104, PLD 2007 Lah. 341 and 2007 MLD 355.
27. I am afraid the above arguments on the part of the plaintiffs do not address issue No,5. The finding given by me on issues Nos. 6 and 4 clearly point out to the N fact that Kulsoom Bai or the Defendant No,1 were dealing with the property openly and adversely to the world from the date of purchase till the date of filing of the suit without any protest from the plaintiffs' father or the plaintiffs. I have already' concluded on issues Nos. 6 and 4 that the alleged order of the Custodian dated 14-12-1950 is forged, and that the plaintiffs have failed to show or prove that the registered conveyance deed dated 9-12-1947 and the power of attorney dated 19-12-1947 are fraudulent documents. The judgments relied upon by the plaintiffs, underscored above, are not relevant to the issue at hand. Accordingly I decide the issue No,5 in the affirmative. Issue No,7
28. The issue No, 7 reads as follows:- - "Whether the father of the plaintiffs acquired the suit property as alleged and valid permanent transfer order dated 27-1-1962 was passed in his favour as alleged? I f so, what is its effect?
29. P.W.1 Mustafa Ali Khan in his cross-examination has stated that the order dated 12-8-1960 passed by Wasim Hamid Rizvi, which was the basis of the transfer of property, could not be produced because the auction file was not traceable. Again the Deputy Secretary, Evacuee Properties, Mr. Shakeel Ahmed in his letter dated 23-8-1992 (Exh. 3/37) has stated that in the absence of the transfer file it was not possible to verify the genuineness of the PTD. The plaintiffs' father is alleged to have acquired the property on 9-11-1960 on the basis of the said PTD. However, from the said date till his death in 1972 he did not issue any notice to the tenants or collect rent, or pay taxes, or apply for mutation, or took any action against Mst. Kulsum Bal. And after his death the plaintiffs took no action against Mst. Kulsum Bai or the defendant No,1 or the tenants. They did not take possession of the property, collect rent or pay taxes. The total delay and inaction from 9-12- 1960 uptil July, 1992 (i.e, when the suit was filed) on the part of the plaintiffs and their father are unexplained, clearly showing that the alleged PTD is a forged document having no legal effect.
Importantly, all along it was the Mst. Kulsum Bai, and then the defendant No,1, who were in possession and were dealing with the property in all respects including the conclusion of rent, payment of taxes and filing of litigation without any objection from the plaintiffs or their father. Also, as pointed out above, the entire auction transfer file is not traceable so as to confirm as to whether there was as genuine transfer in favour of the plaintiffs.
30. Once this Court has declared that the order dated 14-12-1950 is forged, all p subsequent orders and actions based thereupon are also void (see Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104). Accordingly, I answer the issue No,7 in the negative.
Issue No,8
31. Issue No,8 reads as follows:-- "Whether the probate of will of Kulsumbai was obtained ? If so. What is its effect?"
32. I have given my conclusion, as above, that the alleged order of the Custodian dated 14-12-1950 is fraudulent and that Mst. Kulsum Bai was the rightful owner of the property from whom the defendant No,1 inherited the suit property. This being so, I am of the opinion that the probate of the will of Mst. Kuslum Bai was lawfully granted to the defendant No,1 in SMA 166/1989. Accordingly issue No,8 is Q answered in the negative.
Issue No,1
33. The issue No,1 reads as follows:-- "Whether the suit is barred by limitation?"
34. As I have decided the matter on merits, in my opinion there is no need to decide issue No,1, which pertains to the suit having become time barred. Even if this issue is decided in favour of plaintiffs, it shall not alter the outcome of the suit. Issue No,9
35. The issue No,9 reads as follows:-- "What should the decree be?"
36. In light of the discussion as above the suit is dismissed and it is held that Kulsoom Bai was the original owner of the suit property, whether the Defendant No,1 legally inherited the property from her. The alleged order of the Custodian dated 14-12-1950 and all documents consistent and in pursuance thereof are also forged, fraudulent and void.
37. The summary of the conclusions, issue-wise, is as follows:-- ' Issue No,1: Not required to be addressed.
' Issue No,2: Not pressed by parties ' Issue No,3: Not pressed by parties ' Issue No,4: Negative. Issue No,5: Affirmative ' Issue No,6: Negative Issue No,7: Negative Issue No,8: Negative Issue No,9: As above
38. The suit is accordingly dismissed with costs.