K. E. CHAUHAN, J.-This judgment will dispose of two writ petitions, namely, W. P. No. 900 of 1970 and W. P. No. 901 of 1970.
2. Messrs Associated Cement Companies Limited (herein--after called the enemy company) was a company incorporated and registered in India (Bharat). It had huge cement factories at Wah and Rohri. Its land, factories, property and assets etc., were all acquired by the Government by contract or otherwise under the acquisition laws. The price or certain payment in that respect was to be made to the company according to the terms of the respective agreements in this behalf in Bombay. The net price was to be worked out after deducting all taxes payable under the relevant Pakistan Laws which the Company undertook to pay. In 1965, when war broke out between India and Pakistan, the petitioner was treated as an alien enemy (or as an enemy company) and a Deputy Custodian of its property was appointed under rule 182 of the Defence of Pakistan Rules read with the Enemy Properties (Continuance of Emergency Provisions) Ordinance, 1969. The first relevant Notification in this respect is Annexure R/1 dated 29-9-1965 and reads as follows:- "Government of West Pakistan Industries, Commerce and Mineral Resources Department NOTIFICATION The 29th September 1965 No. 11-I-75/65.-In exercise of the powers conferred under Government of Pakistan, Ministry of Commerce Notification No. DS-ICI-284/2-65 dated the 11th September 1965, the Government of West Pakistan is pleased to appoint the Director of Industries, West Pakistan, as Deputy Custodian under rule 182 of the Defence of Pakistan Rules in respect of the payments to be made in satisfaction of the purchase agreement of the following:-
(1) Dalmia Cement Co., Karachi. (2) Dandot Cement Factory, Dandot.
(3) Associated Cement Companies Limited, Bombay-
(1) Wah Cement Factory, Wah and (2) Rohri Cement Factory, Rohri.
(Sd.) S. Munir Hussain, Secretary to the Government of West Pakistan.
Industries, Commerce and Mineral Resources Department."
This was supplemented by a further Notification, dated 25-4-1966 Annex. "R/2", which is to the following effect "Government of West Pakistan, Industries, Commerce and Mineral Resources Department, Lahore, the 25th April 1966.
NOTIFICATION No. VII-1-3/65 (EI-C).-In continuation of Government of West Pakistan Industries, Commerce and Mineral Resources Department's Notification No. II-1-75/65 dated the 29th September 1965 and in exercise of the powers conferred under Government of Pakistan, Ministry of Commerce Notification No. SRO 207 (R)/65 dated the 11th September 1965, read with rule 182 of the Defence of Pakistan Rules and Paragraph 4 of the Enemy Property (Custody and Registration) Order, 1965, the Government of West Pakistan is pleased to appoint the Director of Industries and Commerce, West Pakistan, as Deputy Custodian, in respect of the Pakistan Provident Fund of the Associated Cement Companies Limited, held in the name of Messrs P. S. Mistry, P. K. Mistry and S. N. Cooper as Trustees of the said Fund, and any other properties of the Associated Cement Companies Limited.
By order of Government of West Pakistan.
(Sd.) S Munir Hussain C. S P., Secretary to Government of West Pakistan."
A third Notification was recently issued. It is dated 11-3-1971 and reads as follows:- "Government of Pakistan (Ministry of Communications)
West Pakistan Enemy Property Management Board WAPDA House 2nd Floor (Room No. 202)
Lahore. 11th March 1971.
NOTIFICATION No. S. R. O. 10 (F)/71.-In supersession of the Govern--ment of West Pakistan I. C. & M. R. Department's Notifica--tions No. II-1-75/65 dated the 29th September 1965 and No. VII-1-3/65 (E P C) dated the 25th April 1966, and in exercise of the powers conferred on it by clause (b) of sub-rule (1) of rule 182 of the Defence of Pakistan Rules as continued in force by section 2 of the Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969 read with the Government of Pakistan Ministry of Communications Notification No. S. R. O. 62 (K)/68 dated 5-1-1968, the West Pakistan Enemy Property Management Board appoints the Additional Custodian of Enemy Property for West Pakistan as Additional Custodian to demand and receive payments to be made In satisfaction of the purchase agreement of the following:-
(i) Associated Cement Companies Limited, Bombay-
(a) Wah Cement Factory, Wah; and
(b) Rohri Cement Factory, Rohri and in respect of-
(ii) Pakistan Provident Fund of the Associated Cement Companies Limited held in the names of Messrs P. S. Mistry, P. K. Mistry and S. N. Cooper as Trustees of the said Fund and any other properties of the Associated Cement Companies Limited.
By order of the West Pakistan Enemy Property Management Board, Feroze-ud-Din, Secretary."
3. It appears that the company had always been assessed to income-tax as a "non-resident" in Pakistan. Its assessm ent for the years (1965-66), (1966-67) was in arrears. It was made by the Income-tax Officer vide certain orders dates of which have not been given in the writ petition. As the amounts of income --tax were not paid, therefore, the Income-tax authorities passed further orders, namely, (I) order, dated 2-3-1970 under section 18 (7) (if), order dated 7-3-1970 under section 46 (5-A) of the Income-tax Act and (iii) order dated 7-3-1970 under rule 23 of the Income- tax Recovery Rules, 1969. The petitioner-company has come up in writ petition under Article 98 of the late Constitution against the aforesaid proceedings and orders, claiming the following reliefs:- "(1) that it be declared that the petitioners were and are entitled to notice under the Income-tax Act to have inspection of record to participate in the proceedings and to prefer appeals:
(2) that it be declared that the said Deputy Custodian acted without authority in representing the petitioner in the assess--ment proceedings before respondents Nos. 6 and 7.
(3) that it be declared that the ex parte assessment orders and Demand Notices for the assessm ent years 1965-66 and 1966-67 having been made without notice to the assessee under sections 22 (3) and 29 of the Income-tax Act, are void in law;
(4) that it be declared that respondents Nos. 6 and 7 had acted without jurisdiction in finalising the assessm ents of the petitioner relating to the assessment years 1965-66 and 1966-67 and treating the petitioner as a deemed assessee in default, without final orders having been passed under the Income-tax Act holding the Cement Agencies Limited as Taxable in Pakistan;
(5) that it be declared that respondents Nos. 6 and 7 had acted illegally in disallowing the managing agency commission as an item of expenditure in the hands of the petitioner under section 10 (4) (BB) of the Income-tax Act for the assessment years 1965-66 and 1966-67, without final determination of the liability of Cement Agencies Limited being taxable in Pakistan under the Income-tax Act;
(6) that it be further declared that orders passed by respondent No. 6 under section 18 (7) of the Income-tax Act are illegal and void in law;
(7) that it be further declared that the notices issued by respondent No. 7 under section 45 (5-A) are illegal and void in law;
(8) that it be declared that notice of attachment, dated 7th March 1970, under rule 23 of the Income-lax Recovery Rules, 1969 and orders under rule 20 (1) of the Income-tax Recovery Rules dated 13th March 1970, issued by respondent No. 8 are illegal and void in law;
(9) that it be declared that the monies realised as tax etc., in respect of the assessment years 1965-66 and 1966-67 were without any legal justification;
(10) that direction be issued to respondent No. 7 to refund the money illegally collected as tax from the said Deputy Custodian for assessment years 1965-66 and 1966-67;
(11) that the petitioner be awarded such further and other reliefs as the nature and circumstances of the case may require."
4. The respondents in this case are:-
(1) Pakistan through the Commissioner of Income-tax, Lahore Region, Lahore.
(2) The President of the Islamic Republic of Pakistan as the successor of the former Government of West Pakistan and Associated Cement (Government of West Pakistan) through the Secretary, Ministry of Industries and Natural Resources, Government of Pakistan, Islamabad.
(3) The Additional Custodian of Enemy Property and Vice---Chairman, Enemy Property, Management Board, Lahore.
(4) Enemy Property Management Board, WAPDA House, Lahore, through its Secretary.
(5) The Secretary, Ministry of Communications, Government, of Pakistan, Islamabad, in his capacity as the Custodian of Enemy Property and Chairman of the Enemy Property Management Board.
(6) Income-tax Officer, Central Circle If, Karachi.
(7) Income-tax Officer, Companies Circle I, Lahore; and
(8) Tax Recovery Officer, Recovery Circle II, Lahore.
5. Learned counsel for the respondents raised a preliminary objection that since the petitioner is an alien enemy not residing in Pakistan, therefore, it has no locus standi to file the present writ petition.
The facts that (a) the petitioner is an alien enemy and (b) is not residing in Pakistan and as a matter of fact, never resided here, are admitted by the learned counsel for the petitioners. While accepting these factual aspects as correct, learned counsel for the petitioner, however, submitted that his client could not be stamped with any such disability both on the legal plane or on the basis of any public policy from filing the present writ petition in view of the peculiar facts and circumstances of the case. The point was of considerable interest and importance and the learned counsel for the parties addressed elaborate arguments in support of their respective contentions which we shall presently attend to.
6. The first provision of law to be noticed is section 83 of the Code of Civil Procedure (V of 1908). This section occurs in Part IV headed "Suits in Particular Cases" under the sub-head, "Suits by Aliens and by or against Foreign Rulers Ambassadors and Envoys". The marginal heading of section 83 is, "When aliens may sue". The body of the section reads as follows:- "83. When aliens may sue.-(1) Alien enemies residing in Pakistan with the permission of the Central Government and alien friends, may sue in the Courts in the Provinces, as if they were citizens of Pakistan.
(2) No alien enemy residing in Pakistan without such permission, or residing in a foreign country, shall sue in any of such Courts.
Explanation.-Every person residing in a foreign country the Government of which is at war with or engaged in military operations against Pakistan and carrying on business in that country without a license in that behalf under the hand of a Secretary to the Central Government shall, for the purpose of subsection (2), be deemed to be an alien enemy residing in a foreign country."
On the apparent tenor of this section as read with its marginal heading and the heading and sub- heading of the chapter under which it occurs, learned counsel for the petitioner-company argued that it debarred a non-resident alien enemy from only filing a suit in any Court of Pakistan, and did not cover any other type of action process, or proceeding as for example (confining the discussion to the facts of the present case) writ. Petitions. Learned counsel for the respondents, however, submitted that the words of section 83 indicated that a non-resident alien enemy "shall not sue in any of such Courts". They argued that the intention was to create a general comprehensive personal disability on the part of non-resident alien enemy from acting as an actor in any Court of Pakistan by way of suit or otherwise by applications or other similar methods and the bar was not merely confined to suits as technically understood. We have given our anxious consideration, to this aspect of the matter and for the reasons hereinafter enumerated and the discussion hereinafter following we are of the opinion that (i) both on general principles and the public policy relevant with reference to a non-resident alien enemy, it is reasonable, just, fair and proper to hold that the bar is all embracing with regard to suing in any form, namely, by means of suits or other-- wise by means of application where for example the action begins by such applications and a non-resident enemy is occupying the role of an actor as distinct from that of a defendant. (ii) The wording used is "no alien enemy . . . Shall sue, and not that "shall not bring any suit", which shows that we should not substitute a terminology different from the one used by the Legislature in its own wisdom. (iii) Again the bar is with reference to all Courts in Pakistan as the wording is, "no alien enemy shall sue in any of such Courts." Now suits are filed only in civil Courts but the Legislature has debarred a non---resident alien enemy from suing in any Court in Pakistan. This shows the Legislature had in view not only civil Courts but also all other types of Courts where suits are not filed or where actions do not begin by a suit but by applications. This indicates that the intention was to totally incapacitate a non-resident alien enemy from suing in any form. (iv) Even otherwise, we do not find any logic in debarring only from suits, but not debarring from suing by means of applications or petitions which may bring equally the same or similar results as the suits may do.
(v) The Legislature had in front Specific Relief Act (I of 1877) section 45 of which prior to establishment of Pakistan read as follows:- "45. Any of the High Courts of Judicature at Calcutta, Madras and Bombay may make an order requiring any specific act to be done or forborne, within the local limits of its ordinary original civil jurisdiction, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or inferior Court of Judicature Provided-
(a) that an application for such order be made by some person whose property, franchise or personal right would be injured by the forbearing or doing (as the case may be) of the said specific act;
(b) that such doing or forbearing is, under any law for the time being in force, clearly incumbent on such person or Court in his or its public character, or any such corporation in its corporate character;
(c) that in the opinion of the High Court such doing or forbearing is consonant to right and justice;
(d) that the applicant has no other specific and adequate legal remedy; and
(e) that the remedy given by the order applied for will be complete.
Exemptions from power.-Nothing in this section shall be deemed to authorise any High Court-
(f) to make any order binding on the Secretary of State, the Central Government, the Crown representative or any Provincial Government;
(g) to make any order on any other servant of the Crown, as such, merely to enforce the satisfaction of a claim upon the Crown; or
(h) to make any order which is otherwise expressly excluded by any law for the time being in force."
Later on, it was amended in Pakistan from time to time and now it reads as follows:- "45. The High Court of East Pakistan may make an order requiring any specific act to be done or forborne, within the local limits of its ordinary original civil jurisdiction by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or inferior Court of judicature: Provided-
(a) that an application for such order be made by some person whose property, franchise or personal right would be injured by the forbearing or doing (as the case may be) of the said specific act;
(b) that such doing or forbearing is, under any law for the time being in force, clearly incumbent on such person or Court in his or its public character, or on such corporation in' its corporate character;
(c) that in the opinion of the High Court such doing or forbearing is consonant to right and justice;
(d) that the applicant has no other specific and adequate legal remedy; and
(e) that the remedy given by the order applied for will be complete.
Exemptions from such power.--Nothing in this section shall be deemed to authorize the High Court-
(f) to make any order binding on the Central Government or any Provincial Government;
(g) to make any order on any other servant of the State, as such, merely to enforce the satisfaction of a claim upon the Government; or
(h) to make any order which is otherwise expressly excluded by any law for the time being in force.
This section authorised the High Court or High Courts concerned to issue writs of the kind mentioned therein. Reading that section with section 83, C. P. C., it is evident that the bar to sue would have equally applied to making applications for writs under section 45 of the Specific Relief Act and now that writs are claimed under Article 98 of the Constitution it should not make any difference so far as the disability to sue is concerned and section 83 would equally apply here as well. (vi) Word "sue" is not unfamiliar in the legal field. It occurs as for example in Article 213 of the Constitution of 1962, and the corresponding provision in the earlier Constitution of 1956, the Government of India Act, 1935 and the other similar earlier Constitutional Acts where it was laid down that the Central Government may sue or be sued in such and such name and the Provincial Government may sue or be sued in the name of the Province concerned. These words came up for interpretation in Province of Bombay v. Khushaldas S. Advani (AIR 1950 SC 222) and Sardar Kapur Singh v. Union of India (AIR 1957 Pb. 173) and it was held that to sue or to be sued included institution of all kinds of causes regardless of their form and would definitely embrace the filing of a writ petition. (vii) In section 117 of the C. P. C., it is written that- "save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to High Courts."
This means that besides disability of suing in other Courts, the bar equally exists in suing in High Courts in the form of an actor. (viii) For the proposition that C. P. C., applies to High Courts, we may here refer to a recent judgment of the Supreme Court reported in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi (PLD 1970 SC 1). 'The following passage which occurs at page 7 of the said judgment is instructive and worth reproduction. It is as follows:- "The Civil Procedure Code regulates civil proceedings. The nature of the proceeding does not necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceeding or not it is necessary to see what are the questions raised and decided in the proceeding. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceeding. As regards application of the provisions of the Code in proceedings before a High Court, their Lordships of the Privy Council in Sabitri Thakurani v. Savi AIR 1921 P C 80 observed:- `The Code is framed on the scheme of providing generally for the mode In which the High Court is to exercise its jurisdic--tion, whatever it may be while specifically excepting the powers relating to the exercise of original civil jurisdiction to which the Code is not to apply.'
The underlining* in the above quotation is mine. The words underlined* clearly indicate that the provisions of the Code, other than the specially excepted ones, shall apply in the exercise of the High Court's jurisdiction in a civil matter whatever may be the nature of that jurisdiction.
The writ jurisdiction under Article 98 of the Constitution, as already stated, is an original jurisdiction.
Obviously, the jurisdiction under that Article pertains to civil as well as other" matters. At the moment, I shall consider the nature of the proceeding arising out of a writ petition relating to a civil matter, as in the instant case. A proceeding taken for the enforcement of a civil right is a civil proceeding, whatever may be the source of the Court's jurisdiction invoked for enforcement of such a right. According to Stroud's Judicial Dictionary, `Civil Proceeding' is a process for recovery of individual right or redress of individual wrong, inclusive, in its proper legal sense, of suits by the Crown see Bradlough v. Clarks 8 A C 354. Whether a proceeding is civil or not depends on the nature of the subject-matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having recourse to the writ jurisdiction. Judged from these aspects, a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding, although the High Court's jurisdiction in such a proceeding is constitutional jurisdiction of an original kind. A civil proceeding in a Court of civil Jurisdiction is governed by the Code of Civil Procedure (See its preamble). By virtue of section 117 of the Code, a civil proceeding 9n a High Court is also governed by the pro--visions of the Code other than the provisions which are specially excepted. A proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and section 114 of the Code conferring power of review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said section 114 if that section is otherwise applicable."
On the principle enunciated in the above passage it can safely be held that personal disabilities, which apply to civil proceedings) in civil Court will apply to the similar proceedings when instituted in the High Court whether by way of suit, miscellaneous applications or petitions under Article 98 of the Constitution.
The view which we have taken finds support from a recent judgment of the Supreme Court reported in M. M. Mansur Ali v. Arodhendu Shekhar Chatterjee and others (PLD1969SC37) where after reproducing section 83, their Lordships observed:- "It will be seen that subsection (2) is a complete bar for an alien enemy residing in a foreign country to bring an action in the Courts of Pakistan, but where such an enemy is residing in Pakistan with the permission of the Central Government, he like an alien friend, can sue in the Courts of Pakistan as if he were a citizen of Pakistan. As the respondents are living in a foreign country (Bharat) if they are treated as alien enemies, they are entirely out of Court in Pakistan."
In that case the question was of the maintainability of a suit, but the Supreme Court did not say that non-resident alien enemy could not file a "suit", but said that he was under a complete bar, "to bring an action in Courts in Pakistan." It is obvious that the word "action" as used by the Supreme Court is wider than the word "suit" and would include a writ petition as well. In the said judgment, the Supreme Court remanded the case to the trial Court to seek views of the Government of Pakistan on the point as to whether the plaintiffs therein were alien enemies or whether India was an enemy country and whether we were at war with India. In the instant case, these points are not in controversy because Mr. Fazlur Rehman did not contend anything to the contrary on this aspect of the matter. In that view of the situation, giving full effect to the verdict of the Supreme Court, a finding has to be recorded against the petitioner. Mr. Fazlur Rehman submitted that in the above paragraph the words "action" and "Courts in Pakistan" were somewhat loosely used by the Supreme Court and did not embrace actions in the High Court. The argument is fallacious and no such comment can be made on the terminology employed by the Supreme Court.
7. Learned counsel for the petitioners referred to two cases of the Supreme Court reported in Cement Agencies Ltd. v. The Income-tax Officer, Central Circle II, Karachi and another (PLD1969SC318) and Income-tax Officer, Central Cir4es II, Karachi and another v. Cement Agencies Ltd. (PLD 1969 SC 322) in which writ petitions had been filed by the present petitioner-company or their Managing Agents (both of which companies were non-resident in Pakistan). The Supreme Court in the first case had issued a writ in favour of the petitioner setting aside the judgment and order of the High Court (Karachi Bench) which had refused the same. In the second case, the High Court had issued the requisite writ and the Supreme Court dismissed the appeal against the same.
From these two judgments, learned counsel submitted that if the filing of writ petitions was barred, the Supreme Court could not have passed the orders which it did and the very effect of the Supreme Court's order was that they impliedly held that such writs could be filed and continued.
We are afraid we cannot accept this contention. In both the cases, the writ petitions were filed in year 1964 and were decided by the High Court on 12-2-1965, i.e., before the outbreak of hostilities with India and before the vesting of the properties and assets of the petitioners in the Custodian of Enemy Property as now is the situation. The point presently in dispute was neither raised nor debated before or decided by the Supreme Court and nor was the status of the present Companies brought to their Lordships' notice. In these circumstances, it is not fair to infer any implied decision from the aforesaid two judgments on the point presently under discussion.
Another thing to be noticed is that in one case the petitioners are appellants while in the other they were respondents and the matter was in the form of appeals before the Supreme Court. The present cases even on factual plane are, therefore, different and distinguishable from the said Supreme Court's judgment.
8. Learned counsel for the petitioners then referred to In re: Reference No. 1 of 1965 (PLD 1966 Kar.
160) and Porter v. Freudenberg Kregllnger v. S. Samuel & Rosenfeld, In re: Merten's Patents ((1915) 1 K B 857). The case of PLD 1966 Kar. 160 in our opinion goes against the petitioner as it expressly lays down that no action can be brought by a non-resident enemy in any Court of Pakistan. The case of Porter v. Freudenberg (mentioned above) has been referred to in the case of Karachi Bench and we need not separately attend to it in detail. Learned counsel for the petitioner then referred to The State Bank of India v. The Custodian of Evacuee Property, West Pakistan (PL.D 1969 Lab. 1050). This was a Letters Patent Appeal against the judgment and order of one of us (K. E. Chauhan, J.) whereby he had held that since the petitioners before him had become "alien enemy", therefore, they could not continue the writ petitions which had been filed in the years 1959, 1960 and 1961. An oral request was made before him on behalf of the Assistant Custodian of Enemy Property to allow him to continue the said old writ petitions, but it was refused on the ground that this would amount to "acting" in a case, which could not be allowed without a power in writing in that behalf, which had not been filed. The Letters Patent Bench held that when it was brought to the notice of the Single Judge that the Assistant Custodian wanted to continue these proceedings, he should have adjourned the matter and allowed him to comply with the necessary formalities in that behalf. The appeals were filed by the Assistant Custodian and the same were accepted and he was allowed to continue the old writ petitions. While remanding the case, the Bench further ordered that the writ petitions should be kept pending till the cessation of hostilities with India. The facts of the present case are different-- (which is not of continuing the old writ petitions but of institut--ing fresh ones)-but still we have asked the Deputy Custodian of Enemy Property, who is represented by Mr. M. Ismail Bhatti, Advocate, as to whether he desires to be substituted or added as a petitioner in these writ petitions and whether he would like to continue the same. The reply of Mr. Bhatti was in the negative. In these circumstances, we have no option but to hold that these writ petitions are barred on account of the personal disabilities of the petitioners. As earlier mentioned, in The State Bank of India v. The Custodian of Evacuee Property, West Pakistan, the Letters Patent Bench did not allow the writ petitions to proceed and in spite of holding that the Assistant Custodian could continue the same, directed that the hearing of the said writ petitions should be suspended or may be stayed during the period of Emergency prevalent fn the country. This aspect of the matter rather shows that independent right of the "alien enemy" to continue even the old writ petitions was not recognised. The appellant before the Letters Patent Bench was the Assistant Custodian and it was he whose right in this regard was recognised. See Paras. 1 to 9 of the judgment and Para. 14, where it was written that, "we further hold that the appellant has the locus standi to pursue the writ petitions and to file the Letters Patent Appeals."
9. Taking benefits of certain observations in various cases where it is written that though a non- resident alien enemy cannot bring an action as an actor but in cases where he was a defendant or where notice in the initial proceeding was or was liable to be issued to .Him, he was competent to file an appeal, learned counsel for the petitioner-company submitted that the instant Writ Petitions were also in the form of a notional appeal against the impugned orders to this Court in the exercise of its jurisdiction tinder Article 98 of the Constitution which, according to the learned counsel, was akin to appellate jurisdiction.
The contention has no force. The jurisdiction of the High Court under Article 98 of the Constitution as pointed out by the Supreme Court in the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi (mentioned earlier) is original jurisdic--tion (in civil matters) and to term it as appellate notionally or otherwise, is not correct, because, that is likely to open a gate--way of controversies and complications. In appeals there is the relationship of a subordinate Court and the Appellate Court whereas jurisdiction under Article 98 is not restricted to judg--ments and orders of Courts as such, but extends to orders of any authorities or persons etc. Again, appeal is restricted to Courts subordinate to High Court but under Article 98 Courts or Tribunals, whose orders are challenged, may not be so subordinate. Appeal is removal of a cause from a lower tribunal, Court or authority, to the higher tribunal, Court or o authority for the purpose of rehearing the same. In writ jurisdiction, there is neither any such removal nor rehearing in that sense. In appeal, the appellate Court can appraise the evidence and substitute its own decisions, but in jurisdiction under Article 98 this is not done and appreciation of evidence in that sense is never the object. As already pointed out, applications for specified writs could be made to certain High Courts under section 45 of the Specific Relief Act, and merely because the validity of any impugned orders or proceedings was challenged in that form, or rather by means of a suit in a civil Court it would not mean that a suitor was filing an appeal in the Court concerned or was otherwise appealing to it in that sense. If proceedings in that form were not in the nature of an appeal, they should not be treated as such when instead of filing under the general law of suits or section 45 of the Specific Relief Act, they are filed under Article 98 of the late Constitution. Last but not the least, on this subject, assuming without conceding that a writ petition by an alien enemy is a notional appeal, even then the right to institute, prosecute or continue the same would vest in the Custodian of Enemy Property and not in the alien enemy himself. This is due to the vesting of all his property in the Custodian and express confer--ment of power on him to prosecute and defend cases of an alien enemy as will be discussed in the next paragraph or paragraphs of this judgment.
10. Learned counsel for the petitioners wanted to get out of the situation in which his clients are by approaching section 83 of the Code of Civil Procedure from an altogether different angle. He submitted that if section 83 barred the institution of a suit at the instance of a non-resident alien enemy, then it rather showed that he had no remedy of a suit-and to go a step further-nor other adequate remedy. According to him, this bar should be a justification for filing a writ petition under Article 98 of the Constitution rather than operate as a disqualification in that respect, especially, when that Article itself stated that petitions thereunder could be filed only when there was no other adequate remedy. The argument is attractive but on close scrutiny it does not hold good. The question is not to be approached from the point of view of resorting to one remedy or having recourse to one Court instead of another. The question is one of personal disability and if once it is found to exist, then it must exist to its logical end in respect of all Courts and in respect of all forms of actions where the non-resident alien enemy is to appear as an actor. Similarly, it is a bar on persons rather than a restraint on the jurisdiction of Courts. The jurisdiction of Courts-- (whether lower Courts or High Court)-is neither ousted under section 83, C. P. C., nor any other law and it is only a personal t: legal disability of an alien enemy residing outside Pakistan, which disqualifies him from suing in Pakistan. See the case Ex parte; Don Ascanio Colonna (86 Law-Ed. 379=314-16 U S 510), where it was held that an alien enemy had no right to file an application for writs of Prohibition and Mandamus and prosecute actions in the Courts during the war. The same principle is deducible from In re: Reference No. 1 of 1965 (Waheeduddin and Khamisani, JJ.), where, while summing up the general principles with regard to actions and suits by alien enemies, in conclusion No. 4 at page 173 it was held "The execution applications and other miscellaneous matters will also be controlled by the above- mentioned general principles."
We would like to respectfully add to the above, the category of applications for issuance of high prerogative writs in civil matters because on general plane there is no justification to place them on a different level vis-a-vis the cases of the kind presently under discussion.
11. Another aspect of the matter is that according to the notifications hereinbefore reproduced all the property of the petitioner vests in the Custodian/Additional Custodian/Deputy Custodian of Enemy Property under Enemy Property (Control and Registration) Order, 1965, read with rule 182 of the Defence of Pakistan Rules where a Custodian or a Deputy Custodian is appointed of the property of an alien enemy, then he has the power to take all actions and measures as he may consider necessary or expedient for preserving that property. He can for example institute, defend or continue any suit or other legal proceedings, refer any dispute to arbitration and compromise any debts, claims or liabilities. All enemy property vesting in the Custodian is exempt from attachment, seizure or sale in execution of a civil Court decree or orders of any other authority. (See paras. 4 and 5 of the "Order of 1965" herein--before referred to). This leads to two results (i) one is that the situation is not without any remedy. The Custodian or Deputy Custodian can defend any legal proceeding, regarding liabilities of the alien enemies which means that he can file appeals, applications and writ petitions etc. (ii) The second is that when a special functionary has been appointed by law to do all these jobs, it necessarily implies the exclusion of any other. Reference can be made to two maxims, in this behalf, namely, (i) Expressio unius personae vel rei, est exclusio alterius-The express mention of one person or thing is the exclusion of another and (ii) Expressum facit cessare taciturn-What is expressed makes what is silent to cease. This even otherwise is the effect of the vesting orders reproduced above. Reference in this connection may be made to Maerkle and another v. British and Continental Fur Co. Ltd. ((1954) 3 A)1 E R 50) where at page 54, Jenkins J., with whom Hodson, L. G., agreed, held as follows:- "If it is the case that the whole of the plaintiffs' rights, title and interest in the subject-matter of these actions has passed to the Custodian, then the claims which the plaintiffs now seek to assert are, in truth, claims maintainable by the Custodian, and no one else, against the defendants, subject to whatever defences the defendants may have. They are claims which the Custodian may, or may not, see fit to litigate between himself and the defendants; they are claims which might, or might not be compounded or compromised between the defendants and the Custodian. In those circumstances I cannot think that it would be right to allow either of these actions to go forward for the purpose of obtaining declaratory relief in proceedings to which the Custodian is not a party.
The plaintiffs' interest in such relief could only be described as nebulous, for the only advantage (if one may call it such) that counsel for the plaintiffs claims might be achieved by such relief is that it might increase the prospect of his clients ultimately participating in any surplus that the Custodian might have on hand after all prior claims had been disposed of: That, counsel admitted, is no more than a spes; it is not a right or enforceable interest; It is at most a possibility. I cannot, therefore, think that it would be right to allow these actions to go forward merely for the purpose of obtaining relief of that kind, which could confer no tangible benefit on the plaintiffs and might be productive of much embarrassm ent as between the defendants and the Custodian in any litigation or negotiations which may hereafter take place between them on the subject-matter of these two actions.
For these reasons, in my view the learned Judge came to a right conclusion and I would dismiss these appeals."
In the said case, plaintiffs who were enemies, preferred certain claims against the defendants with the idea that after getting the same established, they would ask the Custodian of Enemy Property to add the same into their assets so that if any surplus remains with the Custodian after meting out the claims of others, the plaintiffs may share from the same. It was held that the subject matter of the suit was the property which had vested in the Custodian and it was for him to enforce it or not to enforce it. Earlier the Single Judge Wynn-Parry-(from whose judgment the appeal was heard by the two aforementioned Judges)-had held as follows:- "It follows that if the actions were allowed to proceed, the plaintiffs could not obtain any order for the payment of any sums to themselves. Further, it appears to me that it would be quite wrong to allow the actions to proceed with a view to orders being made for payment of any sums by the defendants to the Custodian of Enemy Property. The Custodian has full power to take proceedings in his own name, if he thinks fits.
This shows that an enemy plaintiff, after his property has vested in the Custodian of Enemy Property, cannot sue for laying claim; against third persons (and we would say much less against the, Government of whom he is the enemy) especially, when the same functions and jobs under the relevant statute, can be preferred by the Custodian. The vesting of such power in the Custodian creates a sort of further personal disability on the alien enemy and he himself cannot bring any action in Court. It is further to be noticed that in the case of The Custodian of Enemy Property Maerkle and another v. British and Continental Fur Co. Ltd. (referred to earlier), the Custodian of Enemy Property was not a party, but in our case, he is a party and has refused to pursue the present writ petitions. This makes the case all the worst for the petitioner. The discussion hereinbefore made will show that approached from whatever angle, whether from the point of vi e- ---of section 83 read with section 117, C. P. C., or from the point of view of the effect of the vesting orders in this case in the Custo--dians the result, so far as the personal disability of the petitioners 2o sue in Pakistan's Courts is concerned, remains the same.
12. Another point argued by the learned counsel for the petitioner was that tine subject-matter of the present writ petition was the determination of the liability of the petitioners to the Income-tax involved herein. This he termed as a "contingent liability upon adjudication by the Income-tax authorities". Learned counsel submitted that this was not a "property" and did not vest in the Custodian of Enemy Property. Taking the argument further, he said that what vested in the Custodian were the debts payable to the petitioner-company but not the debts payable by the petitioner. In this way, he also argued that Para. 4(2)(iv) of the Enemy Property (Control and Registration) Order, 1965, was ultra vires of rule 182 of the Defence of Pakistan Rules, inasmuch as, it authorised the Custodian to compromise any debts, claims and liabilities, not due to but due from the alien enemy. This argument was raised, if we are not disrespectful to the learned counsel, to forestall or counterblast the effect of vesting orders as analysed in other paragraphs of this judgment. In our opinion the contention has neither relevancy nor force. It is doubtful whether the validity of the laws of a sovereign Stat can be challenged in its own Courts by a non-resident alien enemy, but, anyhow leaving the question open to be examine later, in a more appropriate case- where at least the personal disability to sue in Courts of Pakistan may not exist, we think the very basis of the entire argument is misconceived. Liability under the Income-tax Laws is not a contingent liability, but is an absolute liability and all that has to be done in the instant case is that only the quantum and extent of the tax is to be fixed. This is, therefore, not a case of contingent liability in that sense of the term. A perusal of the vesting notifications shows that the price which was to be realised by the non-resident alien enemy, as a result of the purchase of acquisition of his properties, was vested in the Custodian and now he was to receive the relevant payments in that behalf. The said price was and could be called a property. How the net figure of that price was to be arrived at and calculated is a different matter and merely because for finally assessing the same, certain tax, charges and dues, were to be paid, does not deter from vesting which was vested by the relevant notifications in the Custodian. The last two Notifications are very wide and vest all or any otter property of the petitioner in the Custodian and this will include amount or amounts which were to be set apart for tax purpose so that he may pay them off to the authorities concerned. If we examine the provisions of the Defence of Pakistan Ordinance XXIII of 1965 (especially section 2), Defence of Pakistan Rules (especially rules 161 to 168 in Part XV under the head, "control of trading with enemy, rules 169 to 183-A in Part XVI, under the head, "control of enemy firms" and especially rules 181, 182 and 183) and Enemy Property (Custody and Registration)
Order of 1965, we note that the vesting of all enemy property including for example the business etc., of an enemy, would embrace in it, the liability to pay taxes on the same and to deal with the matters incidental thereto, and from that point of view it will be he who would alone be competent to sue in that behalf. After vesting orders, there cannot, in our opinion, remain in the field two parallel persons to sue on one and the same subject. It was to remove such doubts that the Legislature indicated that without prejudice to the generality of the provisions of Para. 4 (1) of the Enemy Property (Custody and Registration) Order, 1965 for preserving the property of an enemy, the Custodian may carry on the business of the enemy, make contract, institute, defend or continue any suit of other legal proceedings, refer any dispute to arbitration and compromise any debts, claims or liabilities, incur any expenditure including the payment of taxes, duties, cases and rates to Government or to any local authority and of any wages, salaries pensions, or provident fund contributions to or, in respect of, any employee of the enemy, and the repayment of any debts due by the enemy to the persons other than enemies; transfer by way of sale, mortgage or lease or otherwise dispose of any property. This is so indicated in Para. 4(2) of the Order and is also the spirit of rule 182 and the Ordinance through and through. All the matters indicated hereinbefore are necessary Incidents of the very appointment of the Custodian and vesting enemy property in him.
To do hair-splitting by saying contingent liability is or is not a property is neither here nor there so far as the facts and the circumstances of the present case are concerned, especially, when express powers of the Custodian exist in the matter of incurring expenditure and payment of taxes etc. The point raised before us has thus no substance. There is neither any excessive legislation in the Order of 1965, nor anything otherwise wrong with the competency of the Custodian of Enemy Property to pay taxes and institute and defend actions in that behalf.
13. The upshot of the above discussion is that the writ petition is not maintainable at the instance of the petitioner and shall have to be dismissed as such. We order accordingly. The petitioner shall pay the costs to the respondents.
W. P. No. 901/1970 The facts of this case are similar to the writ petition mentioned above except that here the petitioners have challenged the proceedings with regard to different assessment years mentioned therein. The prayers claimed are contained in Para. No. 29 of the writ petition and need not be reproduced here in extenso. For the reasons mentioned above, this writ petition also is not maintainable at the instance of the enemy petitioner and is dismissed with costs.