This application under section 83 of the Code of Civil Procedure, read with rule 164(b) of the Defence of Pakistan Rules 1971, and section 151 of the aforesaid Code has been filed by the defendant Zainuddin in the following circumstances;-
2. The plaintiff, who admittedly is a national of India, through his duly constituted attorney Jamil Ahmed, on 30-1-1971 filed a suit against the defendant Zainuddin for declaration, permanent injunction, possession and accounts, on the allegation that the latter taking advantage of the benami purchase of the factory, now known as Central Netting and Metal Products Com--pany, had declared himself as its sole proprietor and usurped all Its interests for his personal ends and possession.
3. On the 17th of May 1971, on the application of the aforesaid parties and Habib Bank Ltd., who had in the meantime made an application for being impleaded as a defendant, the following consent order was passed by this Court: "The parties have submitted an application under Order XXIII, rule 3, C. P. C., praying that a preliminary decree be passed in terms of this application. Photo copy of Jamil Ahmed's power of attorney is on record. Clause 7 empowers him to compromise the suit. A preliminary decree is passed in terms of the compromise. As agreed between the parties, Habib Bank Ltd., is appointed Receiver of the factory and business in question and Mr. Mahmood Hussain Khan is appointed Commissioner for taking accounts in the manner provided for in the application."
As a consequence of this preliminary decree, the Habib Bank Ltd., took over as the Receiver of the factory. On the 25th of November 1971, the Receiver made a submission that due to lack of finances and dearth in the demands of the manufactured goods, the factory was grinding to a halt. They, therefore, requested for their discharge as Receiver. On the 2nd of December 1971, the plaintiff and the defendant Zainuddin made an application for compromise under Order XXIII, rule 3, praying; that a final decree be passed by which the factory and the godown were to be handed over to the plaintiff, as the sole proprietor. The submission and the application came up for hearing on 3-12- 1971. By the consent of the parties, the resignation tendered by the Receiver was accepted and the plaintiff was appointed as the Receiver. The final decree was, however, not passed as the Bank, having its own interest to safeguard as a creditor; and having made an application for being joined as a party, wanted to be heard in the matter. The fact, however, remains that during the hearing it was not even faintly mooted out by any party, that the plaintiff was an Indian national or that he should not be appointed the Receiver.
4. On 25-2-1972 the defendant filed the instant application, praying for recalling the order appointing the plaintiff as the receiver as the plaintiff being an alien enemy and not resident of Pakistan, the above suit could not proceed directly at the instance of the plaintiff or through his attorney.
5. It was argued by Mr. A.I Ahmad Fazeel, learned counsel for the defendant that once hostilities had broken out between India and Pakistan, and emergency having been declared with effect from 23-11-1971, looking to the clear words of section 83(2) of the Code of Civil Procedure and rule 164(6) of the Defence of Pakistan Rules, the right of action by or on behalf of the plaintiff, an Indian national, stood suspended and the order appointing him as the Receiver was without jurisdiction. In that context he cited In re : Reference Na. 1 of 1965 (PLD 1966 Kar. 160), Maxwell v. Grunnunt (31 T L R 79) and In re: Gauding and Blum, Spalding v. Lodde (31 R I R 153). The contention presents no difficulty as the answers to the reference I of 1965, referred to earlier puts the matter beyond the pale of any controversy. In the latter two cases, the prayer for the appointment of receiver was turned down on the ground that it was not the function of the Court to protect the property of alien enemies, or even to make arrangements by which the English creditors could be paid. The right of alien enemies to sue having been suspended, the Courts had no jurisdiction to proceed with the matter. Mr. B. A. Siddiqi, learned counsel for the plaintiff had nothing to say. Actually he made no attempt.
6. It is a well-settled law that a Court can in its inherent powers, cancel its own invalid orders, by recording that what had been done was without jurisdiction. It is also not necessary to go further and see that any fraud or deceit had been practised. Such a view was taken in Sardar Muhammad Hussain Khan and another v. Rasool Bux and others (AIR 1948 Sind 124) and Dholandas Gidumal v.
Ladhumal Delumal and others (32SLR215). In view of rule 165(2) of the Defence of Pakistan Rules, even the attorney of the plaintiff can not be allowed to carry on as a receiver. The order dated 3-12- 1971, appointing the plaintiff as the receiver of the factory, therefore, stands recalled.
8. Mr. A.I Ahmad Fazeel, however, contended that once the plaintiff had been removed as the receiver, the possession of the factory should be handed over to the defendant Zainuddin, who was in complete possession of the factory, when the suit was instituted. It was, however, urged by Mr. J.
H. Rehmatullah, learned counsel for the Bank that the defendant Zainuddin, in the written statement filed by him had admitted that he was an agent of the plaintiff. Further, in the application under Order XXIII, rule 3, C. P. C. Resulting in the preliminary decree, he had admitted that even the immovable property belonged to the plaintiff. He was, therefore, in no better position than the attorney of the plaintiff. The fact also remains that long before the emergency was declared on 23-11-1971, he was out of possession, the factory being in the charge of the Receiver. It was further pointed out by him that the Bank was the Receiver of the factory when the Defence of Pakistan Rules were promulgated and the emergency was declared. The application for being discharged as receiver was moved on 25-11-1971 and the orders were passed on 3-12-1971. He also referred to Venkata Reddy & others v. Pathi Reddy (AIR 1963 SC 992) and, certain passages from Shaukat Mahmood's Code of Civil Procedure Vol. 1, page 26, to the effect that the preliminary decree must not be regarded as tentative, but conclusive of the rights of the parties in the suit. It is idle to look to the rival contentions raised because if the order dated 3-12-1971 is recalled as it has been done, we must revert to the situation as available at the time of the declaration of the emergency. On that date Habib Bank Ltd., was the Receiver of the property duly appointed by the Court. Mr. J. H. Rehmatullah, learned counsel for Habib Bank Ltd., has made a statement in the Court that Habib Bank Ltd. Would still be prepared to assume responsibilities as the Receiver of the factory, without transacting any business.
It will be in the fitness of things that Habib Bank Limited does continue as a Receiver till the Custodian of Alien Enemy properties or the competent authorities looking after the alien enemy properties take over the factory or make any other arrangements fn that connection.