' MUHAMMAD JUNAID GHAFFAR, J.--- Through the instant appeal, the appellant has challenged the order dated 16-9-2010 passed by a learned Single Judge of this Court in Suit No,606 of 2010, while deciding the objections filed on behalf of the appellant under section 30 read with 33 of the Arbitration Act, 1940 for setting aside the award dated 12-4-2010 passed by a Sole Arbitrator.
2. Briefly, the relevant facts are that the respondent was awarded a contract by the appellant through competitive bidding for a commercial building consisting of shops and offices on Build, Operate and. Transfer (B.O.T) basis on the land situated at Karachi Fish Harbour Authority. For this purpose an agreement was duly executed on 28-2-2005, wherein an Arbitration clause was also incorporated. Thereafter, a dispute arose between the parties and the matter was referred for Arbitration. The respondent nominated its Arbitrator, whereas the appellant failed to appoint or nominate its arbitrator within the stipulated time period. The respondent then requested the Arbitrator to proceed as Sole Arbitrator in terms of section 9(b) of the Arbitration Act, 1940. The learned Arbitrator after recording of evidence gave its award dated 12-4-2010 in favour of the respondent which was placed before a learned Single Judge for making at it as a rule of the Court.
Thereafter the appellant filed its objections against the award which have been dismissed vide the impugned order and consequently the award has been made rule of the Court.
3. Mr. Shaiq Usmani, learned counsel appearing on behalf of the appellant contended that the learned Sole Arbitrator was not authorized on the said date i,e, 12-4-2010 to pass any award in the matter as the period of four months as contemplated in clause 3 to the First Schedule (Implied Conditions of Arbitration Agreements) of the Arbitration Act, 1940, had expired. Per learned Counsel at the relevant time when the award was made, the learned Sole Arbitrator was functus officio. It was further contended that in fact the agreement on the basis of which the matter was referred for Arbitration, stood expired, after completion of one year on 26-1-2006 and the respolident had placed reliance on an extension of agreement through a letter dated 26-9-2006 purportedly issued on behalf of the appellant, was even otherwise issued after the expiry of agreement and without prejudice, the same cannot extend the period of agreement itself. Learned counsel further contended that the learned Sole Arbitrator framed issues to decide the controversy after recording of the evidence, therefore, such procedure was not in accordance with law and therefore, the learned Single Judge has failed to appreciate the illegalities committed by the learned Sole Arbitrator. Lastly, learned counsel contended that the respondent had filed its claim before the learned Sole Arbitiutor for an amount of Rs,89,40,000 whereas at the time of filing of affidavit-in- evidence before the learned Sole Arbitrator, the amount was increased to Rs,2,72,33,015 and per learned counsel, the learned Sole Arbitrator erred in law by granting the award in favour of the respondent for the entire amount as claimed through the affidavit in evidence instead of the original claim lodged before the learned Sole Arbitrator. Learned counsel relied upon the case of Messrs Design Group of Pakistan v. Clifton Cantonment Board (1990 MLD 261), Messrs Fazal Textile Mills Ltd. v. Messrs Sattar Cotton Ginning Factory Ltd. (1982 CLC 97), Messrs Ismail Brothers (Karachi)
Ltd. Karachi v. Messrs S.M. Fazil & Co. Karachi (PLD 1958 (W.P.) Karachi 158), Ramnath Narendranath v. Nanjee Shamjee & Co. AIR 1953 Cal. 787 and Sh. Mehtabuddin and another v. Abdul Sattar and 2 others (1981 CLC,828).
4. Conversely, /in Muhammad Masood Khan learned counsel for the respondent contended that there is no provision under the Arbitration Act, 1940, wherein it can be said that after the expiry of four months period, the Arbitrator ceases to be an Arbitrator. Learned counsel referred to section 28 of the Arbitration Act, 1940, and specially subsection (2) thereof, to contend that in fact the appellant through a written undertaking filed by the counsel appearing on their behalf before the learned Sole Arbitrator, had agreed for continuation of the arbitration proceedings and therefore the appellant is now estopped by its own conduct to raise the objection of limitation in terms of clause (3) to the First Schedule of the Arbitration Act, 1940. Learned counsel contended that without prejudice to this submission, even otherwise the conduct of the appellant was the primary reason for any such delay in conclusion of the arbitration proceedings as they had time and again sought adjournments and kept on changing their advocates. Learned counsel contended that it was for this reason that the matter proceeded in terms of section 9(b) of the Arbitration Act, 1940 as they even failed to nominate their Arbitrator as required under the agreement. Learned counsel further contended that the appellant had failed to avail any remedy under sections 5 and 11 of the Arbitration Act, 1940. It was further argued by the learned counsel for the respondent that the Arbitrator is not bound to follow any procedure as contemplated under the Civil Procedure Code and can regulate the proceedings on its own. Per learned counsel, the appellant had led its evidence on all the issues so framed by the learned Sole Arbitrator and therefore, raising this objection at this stage was completely unjustified. Learned counsel further submitted that the appellant has a very limited scope under section 39 of the Arbitration Act, 1940 and cannot challenge the merits of the case in the instant appeal as it would amount to reappraisal of the evidence on record. Learned counsel submitted that the only requirement for the learned Sole Arbitrator was to answer the controversy with reasoning, which has been done in the instant award.
With regard to the objection as to the filing of additional claims, learned counsel submitted that the original claim filed before the learned Sole Arbitrator initially was upto the date on which the claim was filed, and thereafter a considerable time has elapsed in between, therefore, at the time of filing of affidavit in evidence, the additional claim pertaining to the period in between, was filed by the respondent and the appellant had even cross-examined the witness of the respondent on this issued. Learned counsel relied upon the case of WAPDA v. Khanzada Muhammad Abdul Hague Khan Khattak and Company (PLD 1990 SC 359), Syed Mukhtar Hussain v. Mst. Hajani Zubeda and another reported as (2003 YLR 3289), Fazal Textile Mills Ltd. v. Sattar Cotton Ginning Factory Limited (1982 CLC 97).
5. We have heard both the learned counsel and have perused the record and the case-law relied upon by them. Vide order dated 20-1-2011 it was directed that the matter will be finally disposed of at Katcha peshi stage.
6. It appears that admittedly there was a dispute between the appellant and the respondent with regard to the construction of the said project as referred to above. Thereafter both the parties agreed to refer the matter for Arbitration. Since the appellant failed to nominate its Arbitrator, the Arbitrator appointed by the respondent then proceeded with the matter as a Sole Arbitrator and vide his award dated 12-4-2010 has accepted the claim of the respondent. The award was then forwarded by the Sole Arbitrator pursuant to section 14(2) of the Arbitration Act, 1940, read with Rule 282 of the Sindh Chief Court Rule (OS) and was accordingly numbered as Suit No,606 of 2010 by the office in terms of sub-rule (3) of Rule 282 ibid for making the award as Rule of the Court against which the appellant filed its objection under section 30 read with section 33 of the Arbitration Act, 1940 for setting aside of the award. Such objections have been dismissed by the learned Single Judge vide the impugned order and the claim of the respondent has been accepted and the award of the arbitrator has been made rule of the Court.
7. The precise objections raised by the learned counsel for the appellant were, that the Sole Arbitrator at the time of making the award was functus officio; that issues were framed by the learned Sole Arbitrator after the evidence; the purported letter dated 26-9-2006 on the basis of which the learned Sole Arbitrator came to the conclusion that there was an extension in the life of the agreement has been misread; and finally the claimed amount was enhanced on the basis of affidavit-in-evidence without any. Proper application and such acceptance by the learned Sole Arbitrator was unlawful and not permissible under the Arbitration Act, 1940.
8. We have noticed that though some of the objections, but not all, were also taken before the learned Single Judge at the time of filing of the objections against the award, and the learned Single Judge has answered all such objections, after a detailed discussion and considering the relevant case-law. It is a settled proposition of law that while hearing objections to the award, the Court, (i,e, the learned Single Judge as well as the Appellate Court) could not sit in appeal on the award which has been passed after recording of evidence led by both the parties with reasons thereon. It is not the case of the appellant before us that the learned Sole Arbitrator has failed to record reasons for granting the award in favour of the respondent. We have gone through the award as well as the impugned Order and in our opinion the issues raised by the appellant hveinabove have been dealt eloquently and we are not inclined to upset the findings of the learned Single Judge as recorded in the impugned order. We are fortified in this regard by the following observations of the Hon'ble Supreme Court in the case reported in PLD 2011 SC 506 (Federation of Pakistan through Secretary, Ministry of Food, Islamabad and others v. Messrs Joint Venture Kocks K.
G. /Rist):--- "Heard. While considering the objections under sections 30 and 33 of the Arbitration Act, 1940 the court is not supposed to sit as a court of appeal and fish for the latent errors in the arbitration proceedings or the award. The arbitration is a forum of the parties' own choice and is competent to resolve the issues of law and the fact between them, which opinion/decision should not be lightly interfered by the court while deciding the objection thereto, until a clear and definite case within the purview of the section noted above is made out, inasmuch as the error of law or fact in relation to the proceedings or the award is floating on the surface, which cannot be ignored and if left outstanding shall cause grave injustice or violate any express provision of law or the law laid down by the superior courts, or that the arbitrator has misconducted thereof. Obviously if there is a blatant and grave error of fact such as misreading and non-reading or clear violation of law, the interference may be justified by the courts. But for the appraisal and appreciation of the evidence, the courts should not indulge into rowing probe to dig out an error and interfere in the award on the reasoning that a different conclusion of fact could possibly be drawn. (See Premier Insurance Com an and others v. Attock Textile Mills Ltd. (PLD 2006 Lahore 534)"
9 Similarly a learned Single Judge of this Court while dealing with the same issue as to whether the award of an Arbitrator can be upset by a Court while hearing the objections filed under sections 30 and 33 of the Arbitration Act 1940, in the case reported as 1999 YLR 1213 (HAI Abdul Hameed & Co. v.
Insurance Company of North America) has observed that insofar as the law on the subject is concerned, it is now well-settled that the Court in which the award is filed ought not to launch into an exercise of reappraisement of the evidence or to set itself up as an Appellant Court and that it should only interfere with the award when there is an error on the face of award. The learned Single Judge after having fortified itself with the law laid down by the Hon'ble Supreme Court in the case or Joint Venture KG/RIST v. Federation of Pakistan reported as PLD 1996 SC 108 went a step further and observed as follows : "It may be added here that invariably the parties after arbitration ends embroil themselves in protracted litigation mostly at the instance of the one against whom the award is given usually to avoid payment. Consequently, the entire purpose of arbitration is lost which is to give opportunity to the parties to settle their disputes quickly in a commercial manner without being hamstrung due to intricacies of Court procedures. Consequently, in my view it is incumbent upon the Courts to strictly follow the rule laid down in the above Supreme Court judgment and interfere with the award only in case the error is apparent on the face of the award. To illustrate, I would go Lc the extent of saying that the error in the award should be so manifest that a person with even a rudimentary knowledge of law should be able to perceive it, since arbitration ought to be essentially commercial in nature. Insofar as this case is concerned I find that let alone there being any error on the face of award I find that the award is well-reasoned and the deductions arrived at by the learned umpire are logical and, hence ought to be endorsed. I, therefore, find no merit in the objections raised by the plaintiff and, therefore, direct that this award dated 28-1-1994 be made rule of the Court and accordingly this is disposed of along with the application under section 33 read with section 30 of the Arbitration Act."
10. However, as a matter of indulgence we have even examined the contentions raised on the merits of the case by the learned counsel for the appellant and would like to observe that it is also a settled law that once a party has chosen to participate in the proceedings before the Arbitrator, even though the time stipulated under clause (3) of the Firs Schedule to the Arbitration Act, 1940, has lapsed, but by the cod!' of the parties such time frame is extended ipso facto. We have noticed that while participating in the arbitration proceedings no such objections was ever raised insofar as the question of limitation is concerned or whether as to the learned Arbitrator had become functus officio at the relevant time. Rather on the contrary, the advocate appearing on behalf of the appellant had made a categorical statement while seeking adjournments after adjournments before the learned Sole Arbitrator, that if the adjournments are granted, the appellant would not object with regard to the extension of time and further undertook that they will not object if the announcement of the award may go beyond the stipulated time period of four months. Therefore, we are of the view the appellant is estopped by its own conduct to raise such objections at this belated stage which is totally uncalled for and could not be considered by this Court. The Hon'ble Supreme Court in the case of WAPDA (Supra) has made the following observations and those are relevant to the instant-case and are as under:--- "Reading section 3, implied Condition No,3 in the First Schedule to the Arbitration Act and section 28 thereof together, the position of law appears to be clear that the parties are free to enlarge the time for making the award with their mutual consent as with the consent of all the parties, a term can be incorporated in the arbitration agreement giving powers to the arbitrator to enlarge the time for making the award. By Condition No,3 in the First Schedule, statutorily an implied term is incorporated in the agreement that the award shall be made within four months after entering upon the reference. By this statutory provision, the term is to be taken as an integral part of the arbitration agreement and is subject to alteration with the consent of the parties like any other term of a contract. If that were not the intention of the legislature, section 28(2) would not make valid a provision in the arbitration agreement empowering the arbitrator or arbitrators to enlarge the time for making the award with the consent of the parties. If the parties after the expiry of the four months submit themselves to the jurisdiction of the arbitrator and take part in the proceedings enabling him to make an award, it cannot be said that the arbitrator acted without jurisdiction. In such a contingency, the principles of waiver and estoppel would apply with full force.
' It is now well-settled that where the party had all along submitted to the proceedings of the arbitrator without any protest, he cannot turn round and object or insist that the award was made out of statutory period. In Province of Balochistan v. Malik Haji Gul Hasan PLD 1982 Quetta 52, Messrs Sind Cotton Exporter v. Messrs A.B. Sadiq Brothers PLD 1955 Sind 268 and Messrs. Musa Ismail & Co. v. Amin Agencies Ltd. PLD 1955 Sind 242, it was held by the High Courts of Balochistan and Sind respectively that the party raising no objection before the award is given and voluntarily acquiescing to arbitrator's jurisdiction, such party was debarred from raising objection at later stage. It was also held by a Division Bench of the Lahore High Court in the case of Ghulam Mohiuddin v. Federation of Pakistan PLD 1967 Lahore 204 that if a party takes part in the proceedings even after the expiry of four months without raising any objection, it cannot be allowed to raise such an objection. In this case a large number of cases on the point from Pakistan and other jurisdictions were reviewed and discussed."
11. Insofar as the other objections raised by the learned counsel for the appellant are concerned, we are of the view that the learned Sole Arbitrator has the authority to regulate its own procedure, and is not bound to follow any specific procedure, subject to the condition that the parties are allowed to lead their evidence as well as opportunity to contest the claims. It is not the case of the appellant that they have not been provided a proper chance to rebut the claim of the respondent, but they have merely objected to the fact that issues were framed by the learned Sole Arbitrator after recording of the evidence. Even otherwise we have noticed that the issues which have been framed in 'the award of the learned Sole Arbitrator, have been done so as a matter of convenience to decide the controversy in hand and to give its findings on all such issues which had arisen and are relatable to the evidence led by the parties and none of the issues decided, are outside the scope of the evidence so led by the parties. A Division Bench of this Court in the case reported as 1981 CLC 311 in the case of The Premier Insurance Co. (Pakistan) Ltd. Karachi v. Ejaz Ahmed Khawaja and 3 others has held as "The question of appreciation of the evidence by the Umpire was accordingly not open to challenge in the proceedings before the learned Single Judge. A Court while examining the legality of the award under section 33 of the Arbitration Act could not substitute its own finding on appreciation of the evidence, in place of the one given by the Arbitrators or the Umpire, even if the Court had reached a different conclusion on that evidence. The proceedings before the Arbitrators or the Umpire are in the nature of proceedings before a domestic Tribunal and strict compliance of procedural law or the Law of Evidence cannot be insisted upon in such proceedings. We are accordingly of the view that the contention of the learned counsel for the appellant that the award was based on no evidence, ha- ao substance".
12. Finally, the objections that as to how the claim of the respondent was allowed to be enhanced at the time of filing of affidavit-in-evidence, it would suffice to observe that the claim of the respondent was still continuing at the time wheh the matter was referred to the arbitrator and the respondent while filing its affidavit in evidence has only included the period which in fact had lapsed during the period of filing of the claim and the recording of the evidence. This was also precisely for the reason that the appellant had consumed a lot of time by firstly failing to appoint its Arbitrator and secondly by seeking numerous adjournments,, wherein the cause of action was in continuance insofar as the claim of the respondent is concerned. Therefore we are of the view that such enhancement of the claim was also justified as the appellant had full opportunity to contest such claim which in fact has also been done by them by cross-examining the witness of the respondent on this issue.
13. Insofar as the cases relied upon by the learned counsel for appellant are concerned, after examining and going through all, we are of the view that none of them is relevant to the facts of the instant case. The first case relied upon is of Messrs Design Group (supra), lb which there was a specific objection by one of the parties which was made before the Sole Arbitrator regarding the authority to give an award beyond the prescribed time, which in the instant case is lacking. In the second case of Fazal Textile (supra) similarly one of the parties had objected before the Arbitrator that no award could be given against them because the time had expired and based on this the Court was pleased to uphold such objection. Insofar as the case of Ismail Brothers (supra) is concerned, to our understanding the same is in respect of an altogether a different controversy which is not before us. The case of Ramnath Narendranath (supra) is from the Indian jurisdiction and to our understanding, in fact supports the case of the respondent because in that matter the Court came to the conclusion that if the parties fixed the time by agreement amongst themselves therefore the restriction of the time period as stipulated under clause (3) of the First Schedule to the Arbitration Act, 1940 would not be applicable. Since in this matter the appellant had agreed not to object regarding the expiry of the period of for arbitration through a specific undertaking before the learned Sole Arbitrator, therefore this case is also of no assistance. Finally in the case of Mehtabuddin (supra) the Court once again held that if parties agree to extend the time therefore the Award could be extended by the Arbitrator. All these cases relied upon by the learned counsel for appellant are not relevant and hence cannot be considered by this Court.
14. In view of hereinabove, we are of the view that the findings of the learned Single Judge do not require any interference by this Court and consequently this appeal fails and is hereby dismissed with all pending application(s), however with no order as to costs.
Appeal dismissed.
2014 C C 1529 [Lahore] Before Atir Mahmood, J GHULAM ALI----Petitioner versus Mst. FATIMA BIBI and others----Respondents Writ Petition No,30640 of 2012, heard on 7th May, 2014.
West Pakistan Family Courts Act (XXXV of 1964)- ----S. 5, Sched.---Transfer of Property Act (IV of 1882), S.43---Constitution of Pakistan, Art.199--- Constitutional petition---Suit for recovery of maintenance allowance---Attachment of property of the surety--- Scope--- Execution petition--- Auction-purchaser--- Deposit of decretal amount in lieu of setting aside auction proceedings---Bona fide purchaser- -Scope---Judgment-debtor did not appear in execution proceedings wherein surety submitted surety bond that he would pay the decretal amount--- Executing Court attached the property of surety wherein auction purchaser moved an application seeking permission to deposit decretal amount being bona fide purchaser but same was dismissed---Validity-Surety took responsibility for payment of decretal amount by submitting surety bond and got recorded his statement to such effect-Judgment-debtor did not appear and property of surety was attached and put to auction which was purchased by the auctionpurchaser---Neither auction had been confirmed nor sale certificate was issued nor possession of property was handed over to the auction purchaser---Applicant was bona fide purchaser of disputed property without notice and was protected under S.43 of Transfer of Property Act, 1882---Revenue record was silent with regard to proceedings of the court---No bar existed with regard to purchase/transfer of property in question in favour of auction-purchaser-Surety was bound to pay the decretal amount to the extent only for which he gave surety---Surety could not be held responsible for decretal amount accumulated on account of non-payment of decretal amount by the judgment-debtor-- Applicant had stepped into shoes of surety by purchasing the property from him and he was responsible for the amount due against the surety only---Surety did not undertake to pay the future liability of judgment-debtor rather he declared to pay the decretal amount against him at such time---Surety could not be held for future liability of judgment debtor---Impugned order and judgment passed by the courts below were not in accordance with law---Constitutional petition was accepted and impugned orders passed by the courts below were set aside and applicant was allowed to deposit the decretal amount and auction proceedings were set aside---Decree-holder might proceed against judgment debtor for recovery of remaining decretal amount due against him in accordance with law. [pp. 1532, 1533, 1534] A, B, C & D Javed Imran Ranjha.For Petitioner.
Yasar Javed Malik for Respondents Nos.1 and 4.
Allah Baldish Gondal for Respondent No,2.
Date of hearing: 7th May, 2014.
' ATIR MAHMOOD, J.--- The petitioner through the instant constitutional writ petition has challenged judgment dated 13-11-2012 passed by learned Additional District Judge, Bhalwal, District Sargodha who dismissed the appeal of the petitioner and maintained order dated 23-6-2012 passed by learned executing court, Bhalwal whereby the application of the petitioner for deposit of decretal amount of Rs,75,000 in lieu of setting aside auction proceedings was dismissed.
2. Brief facts of the case are that respondent No,1 Mst. Fatima Bibi on 26-9-2009 filed a suit for recovery of maintenance and delivery expenses against respondent No,2 Khizar Hayat which was ultimately decreed by learned Judge, Family Court, Bhalwal, District Sargodha vide judgment and decree dated 18-3-2010. The appeal preferred thereagainst by respondent No,2 was dismissed by learned Additional District Judge, Bhalwal, District Sargodha vide judgment and decree dated 20- 12-2010. On 24-2-2011, respondent No,1 filed a petition for execution of the decree against respondent No,2. When respondent No,2 did not appear before the court despite issuance of summons, his warrants of arrest were issued whereupon respondent No,3 Salabat entered appearance before the court on 7-1-2012, got recorded his statement and also submitted surety bond of Rs,75,000 coupled with his affidavit. Thereafter, respondent No,2 did not appear before the executing court, as such, the property of respondent No,3 being surety was attached by the court for recovery of the decretal amount vide order dated 10-12-2011. On 14-4-2012, the petitioner filed an application for recalling of the said order with the assertion that he is bona fide purchaser of the property intended to be sold through auction from respondent No,3. Thereafter, the petitioner also filed application on 23-6-2012 seeking permission to deposit the decretal amount with the court praying that the auctions proceedings be stopped. The application of the petitioner for permission to deposit the decretal amount was dismissed by learned executing court vide order dated 23-6- 2012. Feeling aggrieved, the petitioner filed appeal which was dismissed vide judgment dated 13-11- 2012 by learned Additional District Judge, Bhalwal, District Sargodha. Hence this writ petition.
3. Learned counsel for the petitioner inter alia contends that the petitioner is a bona fide purchaser without notice from respondent No,3; that the petitioner before purchase of the property inspected revenue record but there was nothing barring anybody to purchase the property of respondent No,3 nor there was mention of court proceedings nor any stay order was recorded therein, therefore, the petitioner remained unaware of the court proceedings regarding the property; that despite the fact that the petitioner is neither the judgment-debtor nor his surety and that the auction proceedings were initiated at his back, he is ready to deposit the decretal amount of Rs,75,000 to discharge the liability of the surety; that the impugned order and judgment passed by learned courts below are against law and fact as they have not taken into consideration the bare fact that the petitioner is not at fault in any manner, therefore, he should not be penalized for the acts committed by others. He prays that this writ petition be allowed, the impugned order and judgment passed by learned courts below be set aside, the petitioner be allowed to discharge the liability of the surety of Rs,75,000 and order of auction of the property in question be set aside.
4. On the other hand, learned counsel for respondent No,2 Has opposed this writ petition on the ground of maintainability asserting that this writ petition is against an interim order passed in an application and objection petition of the petitioner is still pending before the executing court.
Learned counsel for respondents Nos.1 and 4 contests this writ petition by stating that respondent No,4 has purchased the property through auction. He has further contended that the petitioner was well aware of the auction proceedings and that he has purchased the property in question in connivance with the revenue officials, therefore, this writ petition be dismissed.
5. I have heard the arguments put forth by learned counsel for the parties and also perused the record made available before me.
6. Undisputedly, the decree was passed against respondent No,2 Khizar Hayat in a suit filed by respondent No,1 Mst. Fatima against respondent No,2. After dismissal of appeal filed by respondent No,2, respondent No,1 filed execution petition wherein respondent No,2 did not appear despite issuance of warrants of arrest rather respondent No,3 Salabat put appearance before the court and took the responsibility of payment of the decretal amount of Rs,75,000 by submitting surety bonds on 26-3-2011. He also filed his affidavit and got recorded his statement on 7-1-2012 to the effect that he will pay the decretal amount in case he is unable to produce judgment-debtor respondent No,2 before the court and that the court may recover the decretal amount by auction of his property. Succinctly, respondent No,2 did not appear before the court and the property of respondent No,3 was attached and put to auction which was purchased in the auction by respondent No,4, however, neither the auction has still been confirmed nor sale certificate issued nor the possession of the property is handed over to the auction-purchaser, i,e, respondent No,4.
This is the case of the petitioner that he is a bona fide purchaser of the disputed property without notice. There is no denial to the fact that at the time of purchase of property by the petitioner from respondent No,3 Salabat vide Mutation No,841 sanctioned on 12-4-2012, there was nothing in the revenue record regarding proceedings of the court. The record also did not contain anything to suggest that there was any bar on purchase/transfer of the property. Though the learned counsel for the respondents have asserted that the petitioner was in knowledge of the attachment and auction proceedings prior to purchase of the property, therefore, he deserves no leniency, however, they could not bring in light anything from the record in support of their assertion. Mere levelling allegation of connivance on the part of the petitioner with the revenue officials without any substantial proof is of no consequence. In the circumstances, I am of the considered view that the petitioner is a bona fide purchaser of the property and is protected under section 43 of the Transfer of Property Act, 1882.
7. So far as the liability of the petitioner is concerned, the surety was given by respondent No,3 namely Salabat on account of payment of decretal amount on 7-1-2012. It is pertinent to mention, here that at that time, decretal amount due against respondent No,2, i,e, judgment-debtor was only Rs,75,000 which is even mentioned in the warrants of arrest issued against the judgment- debtor. Therefore, respondent No,3 heing the surety was liable to pay the decretal amount to the extent of Rs,75,000 only for which he gave the surety. By no stretch of imagination, he can be held responsible for the decretal amount accumulated on account of non-payment of decretal amount by the judgment-debtor thereafter. Since the petitioner has stepped into shoe of respondent No,3 by purchasing the property from him, he can be held responsible for the amount due against respondent No,3 only. I am not convinced with the argument of learned counsel for the respondents, that the petitioner should pay the amount of the decree due against judgment- debtor till today because the petitioner, in my view, having been stepped into shoe of the surety is liable to pay what was due against the surety.
4. Both the learned courts below have dismissed the application of the petitioner on the basis of the statement made by the surety Salabat before the court on 7-1-2012. The statement is reproduced below:--- {{URDU TEXT}} From the above statement, it is not proved that the surety undertook to pay the future liability of the judgment-debtor rather he declared to pay the decretal amount due against the judgment- debtor at that time. The decretal amount at that time was undeniably Rs,75,000 which fact is evident from the warrants of arrest as well as the surety bond furnished by respondent No,3. In the circumstances, respondent No,3 cannot be held for future liability of judgment-debtor. Same is the case with the petitioner who has stepped into shoe of respondent No,3, i,e, surety. In this view of the matter, the impugned order and judgment passed by learned courts below are not in consonance with the law.
9. The contention of learned counsel for respondent No,2 that the writ petition being against an interim order is not maintainable is misconceived as the application of the petitioner for deposit of the decretal amount has been dismissed finally by learned courts below and the writ petition in no way can be considered against an interim order. It is observed that it is the respondent No,2 who is the judgment-debtor and is liable to pay the decretal amount and wants to shift his liability upon the petitioner by making him a scapegoat which cannot be allowed.
9. For what has been discussed above, this writ petition is allowed, impugned judgment dated 13- 11-2012 passed by learned lower appellate court as well as order dated 23-6-2012 passed by learned executing court are set aside, the application of the petitioner for deposit of decretal amount of Rs,75,000 is allowed and the auction proceedings of the property in dispute are set aside. It is, however, made clear that the decree-holder may proceed against judgment-debtor for recovery of the remaining decretal amount due against him in accordance with law.
Petition accepted. #TBS Before Muhammad Ali Mazhar and Abdul Rasool Memon, JJ #TBE #TBS 2014 CLC 1534 [Sindh] #TBE ASGHAR KHAN and 5 others----Petitioners versus PROVINCE OF SINDH through Home Secretary Government of Sindh and 3 others----Respondents Constitutional Petition No,D-723 of 2011, decided on 16th May, 2014.
Constitution of Pakistan--- ----Art. 199---Constitutional petition---Vested right---Laches, principle of---Scope---In year, 2008, petitioners applied for jobs in Sindh police and they were successful in physical and written tests---Petitioners claimed to have a vested right to be appointed for the posts in question---Plea raised by authorities was that petition filed in year, 2011 was hit by principle of laches and petitioner did not have any vested right---Validity---Petitioners did not have vested right for enforcement under Art.199 of the Constitution on the date when they filed petition and it was hit by laches--- Consideration upon which Court refused to exercise its discretion, where petition was delayed, was not limitation but matters relating to conduct of parties and change in situation-Laches in the simplest form meant failure of a person to do something which should have been done by him within a reasonable time, if remedy of Constitutional petition was not availed within reasonable time the interference could be refused on the ground of laches---Grant of relief in Constitutional jurisdiction was discretionary and it was required to be exercised judiciously---No hard and fast rule could be laid down for the exercise of discretion by Court for grant or refusal of relief in exercise of extraordinary jurisdiction---Petition was dismissed in circumstances. [p. 1540] A Manthar Ali M. Jatoi v.
Government of Sindh 1988 PLC (C.S.) 344; Abdul Razzak v. The Collector of Customs and another 1995 CLC 1453; State Bank of Pakistan v. Imtiaz Ali Khan and others 2012 PLC (C.S.) 218; Jawad Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472; Chairman, PCSIR v. Dr. Mrs. Khalida Razi 1995 SCMR 698 and Secretary Finance v. Ghulam Safdar 2005 SCMR 534 ref. Abdul Salam Memon for Petitioners.
Sibtain Mehmood, A.A.-G. And Malik Tariq, D.S.P. (T&R) and Inspector Abdul Rehman for Respondents.
Date of hearing: 14th February, 2014.
' MUHAMMAD ALI MAZHAR, J.--- The petitioners have brought this constitutional petition for declaration that non-issuance of appointment orders and posting orders of the petitioners as Police Constables in BS-5 by the respondents after complying with all codal formalities is unwarranted in law and they have also prayed that the respondents may be directed to issue their appointment orders.
2. Brief facts of the case are that in the year 2008 advertisement was published in the daily newspaper for the vacant posts of Police Constables. All the petitioners applied for within stipulated period of time and submitted all requisite documents with their educational testimonials. They were issued call letters with the directions to appear for physical test and they were declared successful candidates, thereafter, the petitioners were called and appeared in the written examination in which also they were declared successful. After qualifying the written test the petitioners were called upon to appear before Medical Superintendent for medical examination, which was conducted on 14-5-2009 for few petitioners and for other petitioners the medical examination was conducted on 10-9-2009 for which they submitted requisite medical fee all codal formalities the formal appointment letters were not issued. Learned counsel further argued that vested right has accrued in favour of the petitioners who were declared qualified through proper channel, so they have legitimate expectation to be appointed. It was further argued that some of the candidates who were part of the same batch of the petitioners were given appointment letters and they also completed their training course, but the discrimination has been committed with the present petitioners. Learned counsel has referred to the order passed in C.P.No,D-2016 of 2009 in which 42 petitioners were ordered to be appointed hence, learned counsel argued that present petitioners deserve the same treatment and refusal to appoint them is against the tenet of law and good governance.
4. Learned counsel for the petitioner also referred to Rule 12.16, Chapter XII of (Appointments and Enrolments) Police Rules, 1934, which reads as under:--- "Every recruit shall, before enrolment, be medically examined and certified physically fit for service by the Civil Surgeon. A certificate, in the prescribed form (10-64), signed by the Civil Surgeon, personally, is an essential qualification for enrolment (vide Fundamental Rule 10). The examination by the Civil Surgeon will be conducted in accordance with the instructions issued by the medical department and will test the eyesight, speech and hearing of the candidate, his freedom from physical defects, organic or contagious disease, or any other defect or tendency likely to render him unfit, and his age. The candidate must strip for examination, a loin covering being allowed except when the examination is being completed, and candidate who refuses to do so must be rejected. The conditions of police service make it necessary that the medical examination of candidates should be strict. Candidates shall be rejected for any disease or defect which is likely to render them unfit for the full duties of a police officer.
(a) Superintendents are themselves responsible for rejecting candidates whose general standard of physique and intelligence is unsatisfactory only those candidates should be sent for medical examination whom the Superintendent has accepted as being up to the required standards in these respect."
' The purpose of referring to the above rule as argued by the learned counsel is to show that codal formalities were fulfilled by the petitioners and their credentials were found satisfactory so that they were sent for medical examination otherwise there was no question to refer to them for medical examination. Learned counsel further argued that earlier this aspect was not considered by the other learned benches of this court who disposed of other petitions based on similar controversy and the numbers of which petitions are mentioned in the counter affidavit filed by the respondent No,4, hence the judgments of earlier benches of this court are per incuriam in which the implication of aforesaid rule was not considered while disposing of the petitions.
5. To a question raised by the this court that the petitioners applied for the said post in the month of June, 2008 and the medical examination was conducted on 14-5-2009 but they have filed this petition in the month of March, 2011, why the case is not hit by laches. Learned counsel responded that the petitioners are continuously approaching the competent authority, however, he mainly focused on the premise that on 31-12-2009 against the similar cause of action 42 other petitioners in C.P.No,D-2016 of 2009 were ordered to be appointed therefore, the present petitioners are claiming the same treatment. In support of his argument, he relied upon the following case-law:---
(1) 1988 PLC (C.S.) 344 (Manthar Ali M. Jatoi v. Government of Sindh). Although appointment to civil service has to be made by competent authority but such appointment was required to be made on the recommendation of Public Service Commission, in order to refuse to accept recommendation of Public Service Commission, competent authority, has to act under some rule or at least for some cogent reason which factors were absent in the case of petitioner. Every person is entitled to be treated in accordance with law. Petitioner could not have been dealt with arbitrarily in the matter of his appointment.
(2) 1995 CLC 1453 (Abdul Razzak v. The Collector of Customs and another). As per incuriam decision, even if of the highest court, does not bind any other Court and it matters little that such court itself be at the lowest rung in the hierarchy of courts.
(3) 2012 PLC (C.S.) 218 (State Bank of Pakistan v. Imtiaz Ali Khan and others). Laches is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement, if it is found by the court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party, but he cannot enforce it. The limitation is examined by the Limitation Act, 1908 or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved does not approach the appropriate forum within the stipulated period/time, the grievance though remains, but it cannot be redressed because if on the one hand there was a right with a party which he could have enforced against the other, but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.
6. The respondent No,4 has filed his comments in which clear plea was taken that all the petitioners failed to achieve the threshold of 125 marks in the process of recruiting hence they were not considered for appointment as police constables. In the comments the respondent No,4 has mentioned various petition numbers which were earlier decided by this court relating to the same controversy though the petitioners were different. It was further stated that C.P.No,D-255 of 2010 was disposed of by this court in which the review application was filed but the same was dismissed by this court. Against the said order; the petitioners filed leave to appeal C.P.L.A. No,386-K of 2010 in the Hon'ble Supreme Court of Pakistan, which was also dismissed. It is further stated in the comments that the same learned counsel appearing for the petitioners appeared in many similar cases which were filed in the year 2010 and the same were disposed of by this court. In support of his argument learned A.A.-G. Has relied upon the following case-law:---
(1) PLD 2007 SC 472 (Jawad Mir Muhammadi and others v. Haroon Mirza and others). Article 199.
Constitution petition. Laches. Principles. Laches per se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case.
Question of delay/laches in filing constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for delay in filing constitutional petition, the same cannot be overlooked or ignored subject to facts and circumstances of each case.
(2) 1995 SCMR 698 (Chairman, PCSIR v. Dr. Mrs. Khalida Article 185. Constitution of Pakistan 1973, Employee's Constitutional petition before High Court suffered from gross laches. Such fact by itself was sufficient to deny her relief sought in the constitutional petition. Anyone seeking restoration to the office from which he/she had been removed in an illegal manner was required to show some measure of diligence which had been entirely wanting in the case.
(3) 2005 SCMR 534 (Secretary Finance v. Ghulam Safdar). Articles 185, 199 and Part-II, Chapter-I.
Constitutional petition. Fundamental Rights. Civil service. Mere selection in written examination and interview test would not, by itself, vest the candidate with a Fundamental Right for enforcement as such in the exercise of Constitutional jurisdiction of the High Court. {{PAGE BLUR}} Authorities admittedly had hot issued any offer of appointment to the candidates arid their appointment was subject to clearance by the establishrtient division under the , Centralized System of High was not right in overlooking such aspects of the case while issuing writ of triatidattifti. It Is hard to accept whether the candidates had a Vested legal tit far enforcement under Article 199 of the Oki 4 date heti they file the writ or that the Weie tinder a legal ditty to issue order of appointment without completing and observing all legal requirements.
7, the ietifilid AAA, opoieti the maintainability of the petition on the ground of ladies as the petitioners applied against the posts of - police constables in reapitse to the advertisement published in daily Jang on 1/-6-200g Old eibebitfliig tti theiti their Medical examination of the few petitioners VAS Ceitithieted oil 104-2009 and few petitioners were examined on 18-11-2009, while petition was filed in this court after about 15 months. He further argued that no plausible reason has been given in the memo of petition to say that what prevented the petitioners not to approach this cdtirt immediately and why they were waiting for such a long time. .
8. What we have observed from paragraph 16 of memo. Of petition that the petitioners have claimed the same relief granted in favour of 42 petitiOnert iii ei kdi 6+2016 of 2009 on 31-12-2009.
We have seen the order passed ty did learned Division bench of this court whereby consent order VAS balled that the petitioners who were before the court shall be entertained by the police department for employment as police constable after they clear their medical test subject to other necessary formalities viz checking of antecedents etc. And finally after considering the eases of SOO ether interveners, the petition was disposed of vide order dated It is also a fact that the present petitioners are seeking the 'benefit of the order dated 31-12-2009 but they have approached this court on 10-1-2011.
9. Learned A.A.-G. Along with the comments attached a copy of various orders passed by this court in other petitions in which it was clarified that in response to the advertisement published in the year 2009 125 marks were required to be obtained by every applicant. So in the present case the learned A.A.-G. Has filed the comments and come up with the plea that none of the present petitioneri secured 125 marks, hence, they are not entitled for the relief claimed. While learned counsel for the petitioners argued that once the letter for medical examination is issued it means that the petitioners had cleared the written test otherwise there was no need to issue letter for medical examination. The same learned counsel filed a review application in C.P.No,255 of 2010 against {{PAGE BLUR}} ' the order dated 12-3-2010 on the ground that after issuing medical letters there was no question of reviewing their threshold marks in the written test. The review application which was disposed of with the direction that all those candidates who were not entertained by the police department and who appeared in the 2008 and 2009 batches shall again apply for another prospective vacancies in the police department for the police constables. They shall be subject to written test and interview but their threshold marks shall be 90 for those who applied in the 2008 batch and 125 for those who applied in 2009. If they clear the written test and interview and also medical test and their antecedents are verified as per the rules then they shall be given appointment letters and they shall be given priority over the fresh candidates. Being dissatisfied the petitioners filed C.P.L.A No,386-K of 2010 in the Hon'ble Supreme Court but leave to appeal was refused and the petition was dismissed.
10. We would like to point out that counsel for the petitioner in C.P.No,255 of 2010 was also Mr. Abdul Salam Memon, who is counsel for the petitioners in the instant petition. No plausible or logical justification has been offered in the memo of petition to show as to why the petitioners were awaiting such a long time to approach this court. Question of laches in the case of employment has much significante and due to inordinate delay the things and circumstances are enormously changed. The petitioners applied in 2008 batch but instead of approaching vigilantly they maintained complete silence and were in deep slumber. Due to recklessness and lethargic attitude in approaching the court of law in the service matters the entire complexion and scenario become changed and the concerned department cannot force to provide job to an indolent petitioner to treat him at par with other candidates of 2008 batch which matter has become a past and closed transaction. Likewise the benefit of order passed in earlier C.P. Cannot be given to the present petitioner after such a long delay in which the matter of recruitment pertaining to 2008 batch is over. The Rule 12.1,6 of Police Rules has no germane to the present controversy even we do not find out any judgment per incuriam decided. The earlier C.P. Was disposed of by consent to settle some modalities to examine and treat the candidates of 2008 and 2009 batches separately with a different threshold. If it was a case of any discrimination as alleged the petitioners should have approached to this court immediately rather than to waste substantial time. The honorable Supreme Court in the case of Ghulam Safdar (supra) held that mere selection in written examination and interview test would not, by itself, vest the candidate with a Fundamental Right for enforcement as such in the exercise of Constitutional jurisdiction of the High Court. Authorities admittedly had not issued any offer of appointment to the candidates. In the present case also it is hard to accept whether the candidates had a vested legal right for enforcement under Article 199 of the Constitution on the date when they file this petition. We feel no hesitation in our mind to hold that the petition is hit by laches. The consideration upon which the court refuses to exercise its discretion where the petition is delayed is not limitation but matters relating to the conduct of parties and change in the situation. Laches in simplest form mean failure of a person to do something which should have been done by him within a reasonable time if remedy of constitutional petition is not availed within reasonable time the interference can be refused on the ground of laches. Even otherwise, grant of relief in writ jurisdiction is discretionary, which is required to be exercised judiciously. No hard and fast rule can be laid down for the exercise of discretion by the Court for grant or refusal of the relief in the exercise of extraordinary jurisdiction.
11. As a result of above discussion, this petition is dismissed.