1. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 14-5-1975 of the Lahore High Court, whereby a Letters Patent Appeal filed by the Assistant Registrar, Cooperative Societies, Bahawalpur, (respondent No. 1) was allowed.
2. The relevant facts summarised by the learned counsel are that the property involved in this case, namely, House No. 13-A was purchased by the petitioner from Allah Diwaya respondent No. 3 on 14- 12-1965. Abdul Hamid respondent No. 4 son of Allah Diwaya bad sold his House No. 11-A to different party. On 14-3-1972, respondent No. 1 ordered attachment of both the houses and some other property in connection with the recovery of certain loan from Allah Diwaya and Abdul Hamid.
3. Earlier due publicity was given to the proceedings, which culminated in the attachment. The petitioner objected to the attachment but without any success. He, it is stated by the learned counsel, under coercion, agreed to pay Rs. 8,031 as total settlement to respondent No. 1 for the release of House No. 13-A from attachment. This happened on 17-4-1972.
4. Learned counsel states that the petitioner was handed over a Paying Slip but the Bank refused to accept the amount because the respondent No. 1 had stopped the payment. However, on 18-4- 1972, the petitioner, learned counsel further stated, in order to prevent the auction of the said house deposited Rs. 30,000 and thus the house was released from attachment. Thereafter, the petitioner sought refund of this amount from the Department but without success. He, therefore, challenged various orders of the Co-oper--ative Department and the refusal to refund the amount in the High Court in its Constitutional jurisdiction. His writ petition was accepted but on an Intra-Court Appeal filed by respondent No. 1, the order of the learned Single Judge was reversed by the impugned judgment, dated 14-5-1975, therefore, this petition for leave to appeal.
5. The respondent No. 1 was directed by order dated 7-1-1981, to appear in person along with the relevant record. He has appeared today and has shown us the record ; wherefrom it appears that on 18-3-1963, Allah Diwaya had mortgaged House No. 13-A as security in favour of a Cooperative Society, a of which he himself, his son Abdul Hamid and his relations were members; against grant of loan, which had not by then been obtained. Abdul Hamid had similarly mortgaged his House No. 11-A in favour of the Co-operative Society. The total amount secured in these two mortgages was Rs. 32,000. It needs to be mentioned here t'tat Allah Diwaya besides being father of Abdul Hamid was also the President of the said Society. According to respondent No. 1, it was a Society created by Allah Diwaya, Abdul Hamid and his relations for their own benefit.
6. It also appears from the record person by us that Abdul Hamid as Manager of the Society had obtained certain articles for sale from another Society but having sold the same, appropriated the amount to his own use and had not refunded it. As a result of arbitration proceedings, an award was rendered against him on 25-11-1963 for Rs. 43,415.80 out of which more than Rs. 39,000 constituted the principal amount. Abdul Hamid filed a suit to challenge the award. However, Allah Diwaya his father who was a surety in the mortgage (dated 18-3-1963 executed by Abdul Hamid) paid Rs. 9,000 through a demand draft to the Society-creditor for Rs. 43,415.80. He had in a letter addressed to the Chairman of the Society obliquely admitted the liability to pay the entire amount.
7. But nothing was paid beyond Rs. 9,000. Accordingly after considerable time the Department initiated proceedings for recovery of the amount under the then Martial Law Order No. 241 and it is in this background that the attachment of the properties of Allah Diwaya and Abdul Hamid including both the houses (No. 13-A and No. 11-A) took place. It may be mentioned here that in the mortgages of 18-3-1963, Allah Diwaya and Abdul Hamid were sureties for each other in respect of the amounts mentioned therein.
8. The respondent No. 1 has brought to our notice the proceedings dated 18-4-1972 recorded by the Assistant Registrar himself. On that day, the petitioner along with the purchasers of House No. 11-A accompanied by two Advocates one of whom was Mr. Hassan Bakhsh Abbasi voluntarily offered to pay Rs. 30,000 and requested that the amount of Rs. 2,203.12 which related to sundry expenses should not be recovered. The Assistant Registrar accepted this statement and waiving the said amount of over Rs.2,000 permitted Muhammad Saeed, Muhammad Rauf, Mst. Azmat Begum and the petitioner to make the deposit of Rs. 30,000. They accordingly made the deposit on 18-4-72. There is a mention of the receipt in this behalf. The file also contains a very damaging material against the petitioner's case in so far as the payment of Rs. 30,000 is concerned in the form of statement made by Hassan Bakhsh, Advocate, which rebuts the petitioner's version. The Assistant Registrar has explained that both Allah Diwaya and Abdul Hamid having stood sureties for each other and their House No. 13-A and No. 11-A having been mortgaged with the Society in March 1963, the same could be attached and auctioned in connection with the recovery of the amount which was the subject-matter of award, against Abdul Hamid, made on 25-11-1963. In this behalf he relied on the definition of Borrower and Loan in the relevant laws which would render Abdul Hamid as borrower and liable to pay the amount as loan.
9. Learned counsel for the petitioner has contended that notwithstanding the facts revealed by the record, about many of which he states he was not ware when filing the writ petition, it cannot be denied that the payment made on 18-4-1972 was under coercion, namely, threat of sale of house under allegedly illegal orders, therefore, the petitioner is entitled to the refund.
10. Secondly, he contended that the mortgages of 1963 did not create any liability because no loan was then advanced. The mortgages were to operate only when the loan would have been advanced.
11. Thirdly, he has contested the genuineness of the proceedings conducted by the Department to which reference has been made above. In particular he has contended that the order dated 8-4- 1972 which shows payment of Rs. 30,300 by several parsons and not by the petitioner alone, is also a fake order.
12. The petitioner had sought relief in the Constitutional jurisdiction of the High Court. It could be refused to him on account of adverse conduct. On 18-4-1972, even if it be believed that he alone had made the deposit, the amount of Rs. 30,000 was paid to save the auction of the house. In fact the petitioner obtained the benefit and' the house was released from attachment. Having acted in the manner he did, he could not request the High Court for refund of the amount on any technical considerations. Be that as it may, the fact remains that according to the order dated 18-4-1972, which contains the statement of the petitioner and three other persons as also two Advocates, the amount was deposited by four persons. It is not certain how the contribution was made by each one of them. The only circumstance that the petitioner physically took the amount to the Treasury Bank for purpose of deposit and obtained the receipt in his own name will not make any difference.
13. The other depositors who were necessary parties were not impleaded before the High Court.
14. Therefore, the petitioner could, not be granted the relief asked for.
15. We are unable to accept the extraordinary position taken by the learned counsel that the order, dated 18-4-1972, is fake. The fact that it is genuine. Finds support from other proceedings and conduct of the petitioner, namely the statement of Hassan Bakhsh, Advocate, the involvement of other purchasers of House No. I1-A, the sale of which by Abdul Hamid has not been denied and the further record of the fact that the undertaking given by the petitioner and others in their statements made on 18-4-1972 had been fulfilled. Looked at from this angle, the refusal of the relief by the High Court notwithstanding any technical questions which could have been raised by the petitioner was within its discretion in the Constitutional jurisdiction.
16. We for the same reasons, namely, the conduct of the petitioner, do not consider it a fit case for grant of leave to appeal. This petition accordingly is dismissed.