' K. A. GHANI, J.-This appeal has been filed by the appellant above-named whereby he seeks expungement of certain remarks/passages from the judgment passed by the learned Single Judge in Suit No, 231/70 on 24th May, 1974, while disposing of an application for the withdrawal of Suit No, 231/70 (Gorup Captain A. M. Murad and another v. Mushtaq Ahmed and others) on the original side of this Court.
2. The facts briefly relevant to the disposal of this appeal are that one Mr. N. S. Hoon filed Suit No, 151/70, on 30th April, 1970, in this Court on the original side for declaration and injunction claiming certain shares as his own property in the Company known as B R. Herman & Mohatta Co. Ltd., which is a private limited company registered in Karachi in 1919.
Another suit was filed on 25th May, 1970, by Group Capt. A. M. Murad being Suit No, 231/70, in this Court for seeking amongst others, reliefs for declaration that he was the transferee of certain disputed shares and also for appointment of receiver of the aforesaid Company. In this case. N. S. Hoon who had earlier filed Suit No, 151/70, applied to be joined as a party. On an application filed in Suit No, 231 of 1970, by order passed on 5th June, 1970, the Nazir was appointed as receiver of the Company.
' In the meantime on 3rd February, 1971, N. S. Hoon (plaintiff in Suit No, 151/70) assigned his shares in the said Company to one Muhammad Younus Bawany who therefore made an application under Order XXII, rule 10, C. P. C. For substituting his name in place of N. S. Hoon in Suit No, 151/70. On the same day another application was also filed in Suit No, 231/70 for the same purpose. It would be noted that these applications were moved by Muhammad Younus Bawany through Syed Ishtiaq All Advocate who had filed his vakalatnama on behalf of the aforesaid party sought to be joined in the two suits. Both these applications were granted by orders passed on 20th May, 1971, and Muhammad Younus Bawany was impleaded as a party in Suit No, 151170, as well as in Suit No, 231/70, in place of N. S. Hoon.
3. On the same day, while allowing the consent applications for appointment of joint receivers learned Single Judge ordered as under :- "It has been agreed between the parties that for the duration of suit Group Capt. A. M. Murad may be appointed Receiver to represent his own interest if any, and Mr. Ishtiaq Ali, Advocate be appointed Receiver to represent the interest of other shareholders. To me this arrangment appears to be reasonable and this arrangement would protect the interest of British shareholders and also of N. S. Hoon's purported assignee namely Muhammad Younus Bawany."
4. The submission of Mr. A. A Fazeel, the learned counsel for the appellant is that as per consent order Mr. A. M. Murad was appointed to protect his own interest while Syed Ishtiaq Ali, who was the Advocate of Muhammad Younus Bawany was appointed receiver to represent the interests of the other shareholders. These two persons continued to act as joint receivers from 20th May, 1971 to 16th January, 1974, when an application was filed by Mr. A. M. Murad and defendants Nos. 1, 4, 5, 6, 7 and 10 in Suit No, 231170 under Order XXXIII, rule 3 and rule 1, C. P. C. Compromising the suit and its withdrawal against other defendants. In view of this application the suit was decreed in terms of the compromise and the suit against the remaining defendants was dismissed as withdrawn.
Against the above order Muhammad Younus Bawany the respondent No, 2 in this appeal (defendant No, 9 in the suit) filed an Inter-Court appeal on 30th January, 1974 which was disposed of by consent of the parties on 8th February, 1974 and the appeal was allowed and the suit was remanded for disposal on merits with notice to all the parties. This consent application whereby the appeal was allowed and the suit was remanded was also jointly signed by Mr. Syed Ishtiaq Ali and Mr. A. M. Murad for the said Company.
' After remand of the suit the earlier application made under Order XXIII, rules 1 and 3, C. P. C. Again came up for hearing before the learned Single Judge. It was heard on 25th March, and 15th April, 1974. Mr. Fazeel the learned counsel submitted that he was appearing on behalf of Muhammad Younus Bawany defendant No, 9 in the suit and had raised the plea that the purported compromise or the withdrawal of the suit could not be effected unless all the plaintiffs to that suit as well as the two joint receivers had consented to it.
' Mr. Fazed, further submitted that the learned Single Judge at the tune of conclusion of the arguments on 15th April, 1974 of the aforesaid application, orally directed the appellant Mr. Ishtiaq.
All (one of the joint receivers) to state in writing whether he supported the application or opposed it.
' Pursuant to the above direction given by the learned Single Judge, the appellant filed the statement on 18th April, 1974, and the concluding para. Thereof read as follows :-- "In view of the above submissions the abovesaid receiver on behalf of plaintiff No, 2 prays that the application under Order XXIII, rules 1 and 3, C. P. C. Is not maintainable and the terms of compromise set out in the application are illegal and adversely affect the interest of plaintiff No, 2 (company)."
5. The learned Single Judge by order passed on 24th May, 1974 allowed the withdrawal of the Suit No, 231/70 (A. M. Murad and another v. Mushtaq Ahmad and 9 others) and discharged the joint receivers directing them that the possession and management of the Company be delivered to Mr. A. M. Murad.
6. The grievance of the learned counsel for the appellant in this appeal is that while passing the above-mentioned order on 24th May, 1974 the learned Single Judge passed certain remarks against the appellant in certain paras which reflected on his integrity and conduct and are likely to affect him as a person and as a practising Advocate of this Court and accordingly he has preferred this appeal for expungement of the said remarks.
7, Before we proceed to consider the arguments of the learned counsel we would like to refer here to the law pronounced by the various Courts laying down the principles for expungement of remarks.
8. The first contention of the learned counsel was that before the Court makes any adverse comments on the conduct of any person an opportunity of hearing should be given to him otherwise he will have no means of having the stigma on his character and reputation removed, reliance was placed for this proposition upon the case of Malik Feroze Khan Noon v. The State (1) where their Lordships observed as follows:- "If, therefore, a Judge in making in his judgment the observations to which objection was taken by the appellant transgressed the limits within which he was to function while deciding the case which was before him, or departed from the legal principle by which his power to make comments on the conduct of a person, who was not before him and to whom no opportunity was given to explain the circumstances appearing in the evidence against him, was barred there can be no doubt that a case for interference will have been made out. For otherwise the injury will remain unrepaired and the appellant who was never given an opportunity to be heard will have no means of having the stigma on his character and reputation removed."
' The learned counsel relying on the observations of Honourable Mr. Justice S. A. Rehman in the same case further submitted that the person seeking redress need not be a party to the proceedings that {{FOOT NOTE}}
(1) P L 13 1958 SC (Pak.) 333 {{FOOT NOTE}} ' culminated in the impugned judgment, decree, order or sentence provided of course he satisfies that he has a genuine cause to feel aggrieved by what was said by the relevant Court or that he has an interest in moving the Court and the case falls within the principle enunciated in the case of Muhammad Ashiq v. Allah Bux (I).
' The learned counsel then referred to the case of Abdul Hayee Khan v. The State (I) where while dealing with the question of expungement of certain remarks from the judgment under appeal the Honourable Supreme Court observed :- "In the first place, in dealing with the reference no opportunity was given to the appellant to state his version of the case. This was a serious omission as it contravened the fundamental principle of justice that no one should be condemned without his being given an opportunity to defend himself."
' Another case referred to by the learned counsel for the appellant is that of Agricultural Developmeni Bank, Islamabad v. Qasim Ali Dogar (3) in which cases reported in PLD 1950 Lab. 34, Muhammad Sharif v. The Stale (4), Malik Feroze Khan Noon v. The State, Rounaq Ali v. Chief Settlement Commissioner (5) and The State v. Mujahid-ud-Din Faridi (6) were relied for the proposition that where comments are made on the conduct of a person who was not before the Court and to whom no opportunity was given to explain the circumstances bearing against him the party concerned may apply for expungement of the observations for otherwise the injury will remain unrepaired and the appellant who was never given an opportunity to be heard will have no means of having the stigma on his character and reputation removed.
' The learned counsel also referred to the following observations made in the case of Mr. Khalid M.
Ishaque v. The Chief Justice and Judges of the High C ourt W. P., Lahore (7) by their Lordships of the Supreme Court:- ' But, is not only the gravity of the consequences that can determine the question whether the learned Chief Justice was within his rights in passing the unfavourable opinion which is now sought to be expunged from the record of the High Court. It has been seen already that it was a judicial act, and enough has been said to indicate that there is no impropriety in a Judge inciuding in his judgnent an observation regarding the quality of the assistance given to him by counsel in the case, which may be either favourable or unfavourable. But the expression of opinion must be a judicial act, that is to say, it must be performed judicially, being passed upon matters of fact satisfactorily found, and a proper judgment based thereon with due regard to all the circumstances."
' The learned counsel also cited the case of Rao Muhammad Ashfaq Khan v. The State (8) where the question of expungement of certain {{FOOT NOTE}}
(1) PLD 1957 SC (Pak.) 293 (3) 1976 PLC 555
(5) PLD 1973 SC 236 (7) PLD 1966 SC 628
(2) 1969 SCM R 412
(4) PLD 1957 SC (Pak.) 201 (6) PLD 1959 SC (Pak.) 123 (8) PLD 1963 SC 20 {{FOOT NOTE}} ' remarks made against an Advocate in the judgment of the High Court came up for consideration and the following observations made by the Honourable Supreme Court were referred by the learned counsel :- "A judgment of a superior Court is a permanent and public document, and in this case, the Division Bench has approved the judgment for publication. Mr. R. M. Ashfaq Khan complains of the injury, and we can well understand that it might have been avoided, if before recording these remarks, the learned Judges of the Division Bench had given him an opportunity, in Court or in Chamber, to explain what he meant by the words or the tone he had employed. But, as we have already said, we cannot see that we have power to give Mr. R. M. Ashfaq Khan the relief he seeks, that is, expungement of the observations made concerning him, in the circumstances of this case."
9. After referring to the above cases, Mr. Fazeel the learned counsel for appellant submitted that the observations complained of which are sought to be expunged were made without giving any opportunity to the appellant to explaia his conduct and that these remarks against the appellant who is a practising lawyer are likely to injure him.
10. In the light of the principles governing the expungement of the remarks, which as seen above are well settled we have to consider if the observations of the learned Single Judge are of such a nature which warrant expungement of the same from the judgment passed while disposing of the application under Order XXIII, rules 1 and 3, C. P. C.
We have carefully gone through the judgment with the assistance of the learned counsel for the appellant and are of the opinion that the said observations are not of such a nature as could even remotely cause any injury to the appellant or could be considered as amounting to cast any stigma on his character or reputation. It is correct that the statement in writing opposing the application for withdrawal of the suit was submitted by the appellant on 18th April 1974, after the arguments had already been closed by the parties. The learned counsel who himself was then appearing in that case, however, explained that it was so done by the appellant pursuant to the oral directions given by the learned Single Judge at the conciusion of the case to state in writing whether h supported the application or opposed it. Grievance sought to be made is that the learned Single Judge while passing the judgment in some of the paras. Therein described this statement as (1) "written advice," (2) "lengthy arguments in the nature of advice" and (3) "as an attempt to reopen arguments behind the back of the party concerned" and som other observations were also made.
' The learned counsel submitted that the appellant had filed the statement in writing bona fide to assist the Court, and no attempt was made by him to re-open the case.
' It would, however, be seen that the learned Single Judge made the observations under consideration upon the quality of the assistance given to him by the appellant who was then acting as one of the receivers in B the suit and no exception can be taken to the same particularly in view of the fact that these remarks in no way can be construed as causing any stigma on the character or reputation of the appellant.
' Mr. Fazed submitted that the appellant is a senior Advocate of this Court and that the statement in writing filed by him was such as he bona fide considered to be reasonable and in the interest of the Company. The learned counsel argued that it was not a voluntary act on the part of the appellant but was in obedience to the oral directions given to him by the Court, and thus was in performance of his duty to the Court, in a different case which had earlier been subject-matter of an appeal, and was being heard after its remand. These submissions in or view do not advance the case of the appellant for the relief claimed in the appeal for expungement of the observations made by the learned Single Judge which as stated above by us do not in any manner reflect upon the character or reputation of the appellant.
11. Having reached the above conclusions and in view of the fact that the appellant was acting in his capacity as a receiver (and thus an officer of the Court) and was present during the proceedings in the Court, we find that the learned Single Judge was not required to give any notice to show cause to the appellant before passing the order on application under Order XXIII, rules 1 and 3, C. P. C., the appellant having no personal interest in the case and also because the observations do not in any way reflect adversely upon the honesty or integrity of the appellant.
12. In the result, the appeal is dismissed with no order as to costs.