' Ch. Fazal Hussain, Advocate has filed an application under section 151, C.P.C. On behalf of the Chairman, Pakistan Railways and the Divisional Superintendent Pakistan Railways, Karachi, for adjourning the final hearing of the writ petition until the Supreme Court announces the order in Civil Petition No,1179 of 1989, which has been filed against the interim order passed by this Court in C.M.
No,4078 of 1989 in Writ Petition No,6234 of 1989 filed by Messrs Ittefaq Foundries (Pvt.) Ltd. Seeking directions inter alia that the respondents in the writ petition be directed to discharge their duties and legal obligations towards the petitioner in accordance with law generally and particularly the Pakistan Railways be directed to place at the disposal of Ittefaq Foundries (Pvt.) Ltd. The requisite rolling stock sufficient for the carriage of the scrap contained in M.V. 'JONATHAN', anchored at the outer anchorage off Karachi seaport forthwith for transportation to Lahore consistent with the previous practice and understanding between the parties.
2. Ch. Fazal Hussain learned counsel for the applicant vehemently submitted that vide order, dated 18-11-1989 passed in C.M. Petition No,930 of 1989, the Supreme Court was pleased to suspend the operation of the impugned order, dated 12-11-1989 passed by this Court in C.M. No,4708 of 1989 and, therefore, the propriety demands that final hearing of this case be adjourned till the pronouncement of the order by the Supreme Court in the said civil petition sub judice before it.
3. Ch. Fazal Hussain also submitted that on the direction of the Supreme Court, detailed facts about the non-availability of the traffic facilities were brought to their notice and after hearing the detailed arguments the Supreme Court reserved the order on 10-12-1989, which is likely to be announced shortly.
4. The objection is ex facie misconceived, inasmuch as, the Supreme Court has itself observed in its interim order, dated 3-12-1989 that the High Court shall not postpone or otherwise delay the hearing of the main writ petition pending before it on account of pendency of the proceedings before it arising out of interim order passed in this writ petition.
5. Ch. Fazal Hussain next submitted that the writ petition is not complete for final hearing, inasmuch as, Messrs Ittefaq Foundries (Pvt.) Ltd. Submitted a civil miscellaneous petition No,4848 of 1989, under section 151, C.P.C. For impleading the Federation of Pakistan through the Secretary Communication. The Court has not passed any order on it and no process has been issued to respondent No,4, and therefore, the hearing of the main writ petition cannot be commenced until the orders are passed on this application.
6. At this stage Mr. Asif Jan, learned Deputy Attorney-General submitted that he represents the Federation and has no objection for rectifying the clerical error in the description of Federal Government. Subsequently during the course of dictation of this order in the open Court, Mr. Asif Jan, submitted that he does not represent the Federal Government in this case, but has been engaged by the Pakistan Railways and, therefore, he has no authority as such to receive the notice on behalf of the Federal Government in this case. He also submitted that in case this Court is so inclined, notice may be issued to the Federal Government, which may then nominate him, or any other counsel.
7. Mr. Asif Jan vehemently submitted that throughout the proceedings in this case, he has been appearing either on Court's call or as authorised counsel of the Pakistan Railways and not for the Federal Government and till today he has not been nominated to formally represent the Federal Government.
8. The stand now taken by Mr. Asif Jan is not substantiated by the record of this case. The record shows that Mr. Faqeer Muhammad Khokhar, the learned Standing Counsel for the Federal Government appeared in the Court on Court's call on 9-10-1989. The interim order, dated 1-11-1989, which has been challenged in the Supreme Court also shows that Mr. Asif Jan, the learned Deputy Attorney-General appeared for respondents Nos.1 and 4 i.e, for the Railways administration, as well as, for the Federal Government. At no stage Mr. Asif Jan applied for correction of the interim order that he was not representing the Federal Government. Neither the Federal Government nor the Railways took any objection before the Supreme Court that the Federal Government was not issued notice or the interim order was passed without hearing the Federal Government or that the learned Deputy Attorney-General was not representing the Federation. Mr. Asif Jan, the learned Deputy Attorney-General is the agent of the Federal Government for the purpose of receiving the process against the Federal Government issued by the Court. This being so, service effected on him is deemed to be a service effected on the Federal Government. This Court has A formed the impression that the intention behind the objection is to prolong the proceedings. In any event, by interim order, dated 9-10-1989, Mr. Faqeer Muhammad Khokhar, the learned Standing Counsel appeared in the Court on Court's call. Copy of the miscellaneous application was also handed over to him. This was a sufficient notice to the Federal Government and, therefore, it cannot be said that proper notice has not been given to the Federal Government. Order XXVII, Rule 2, C.P.C. Also provides that persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceedings shall he deemed to he recognised agents by whom appearances, acts and applications under the Code of Civil Procedure may be made or done on behalf of the Government. Rule 4 ibid provides that the Government Pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Courts. The provisions of C.P.C. Are applicable to High Court in writ jurisdiction. Refer Hussain Bakhsh v. The Settlement Commissioner Rawalpindi PLD 1970 SC 1. There is, therefore, no justification for adjourning the case.
9. Be that as it may, if Mr. Asif Jan, the learned Deputy Attorney-General does not want to appear in this case at this stage without formal instructions from the Federal Government, he is within his right to do so. It is expected that formal instructions in the matter shall be obtained by him through telephone either today or by tomorrow from the concerned authorities.
10. As to the merits of the application (C.M. No,4848 of 1989), for correction of description of respondent No,4, the same is allowed subject to all just exceptions. The result is that the Federal Government shall be represented through the Secretary, Ministry of Communication, Islamabad.
The Chairman of the Railways respondent No,1 is the ex officio Secretary, Ministry of Communication, Islamabad and, therefore, notice to him is a mere formality in the facts and circumstances of the case, in that, all the parties are fully aware that the matter is pending in this Court and fixed for hearing today.
11. Ch. Fazal Hussain next argued that the question of availability of traffic facilities was also raised in Civil Petition No,1179 of 1989 filed by the Pakistan Railways in the Supreme Court against the interim injunctions granted by this Court. On the direction of the Supreme Court detailed facts about the non-availability of the traffic facilities were brought before the Supreme Court. After hearing the detailed submissions of the parties, the Supreme Court was pleased to reserve the order on 10-12-1989 and, therefore, the propriety demands that the order of the Supreme Court be awaited before commencing the hearing of the writ petition. The same stand has been taken by Mr. Asif Jan, learned Deputy Attorney-General.
12. It appears that the learned Deputy Attorney-General, as well as Ch. Fazal Hussain have failed to appreciate the purport of the order, dated 3-12-1989 of the Supreme Court in Civil Petition No,1179 of 1989 wherein a categoric direction has been given that the hearing of the main petition in the High Court shall not be postponed or otherwise delayed merely on account of pendency of the proceedings before the Supreme Court.
13. In view of the above, I find no force in the application which is hereby dismissed.
14. Written statements have been filed by Ch. Fazal Hussain on behalf of respondents Nos.1, 2 and 3.
Mr. Iftikhar Ali Sheikh has opposed the filing of the written statements at this belated stage when the case is fixed for hearing the main petition. He submitted that the written statements ought to have been filed three days prior to hearing of the case.
15. Be that as it may, with a view to expeditiously dispose of the matter in the light of the directions given by the Supreme Court, the objection raised by Mr. Iftikhar Ali Sheikh is overruled. The written statements are entertained. Let rejoinder he filed by the petitioner tomorrow.
16. A number of preliminary objections have been raised by respondents Nos.1, 2 and 3 in the written statements. In the interest of expeditious disposal, the arguments on the preliminary objections advanced by Ch. Fazal Husain and supported by Mr. Asif Jan, the learned Deputy Attorney General have been heard at length. Sh. Iftikhar Ali, learned counsel for the petitioner has also partly argued to oppose the preliminary objection as to the maintainability of the writ petition.
It is 2-00 P.M. The case is adjourned to 17-12-1989.
' Presence as before.
' Ch. Fazl-i-Hussain, learned counsel for respondents Nos.1 to 3, has pointed out that there is a factual error in the interim order, dated 16-12-1989, inasmuch as, the Chairman, Railway Board is the ex officio Secretary to the Government of. Pakistan in the Ministry of Railways and not in the Ministry of Communication. He submitted that the error may be corrected. I .
2. The Federal Government has adequate notice of these proceedings, but nobody is representing her However, in the interest of justice, another opportunity is given to Mr. Asif Jan, the learned Deputy Attorney General to seek further instructions, if so desired, from the Solicitor to the Government of Pakistan. The case was adjourned for half an hour for this purpose.
3. Mr. Asif Jan submits that he had a telephonic conversation with the Solicitor to the Government of Pakistan, who has now authorised him to represent the Federation of Pakistan in this case. He further submitted that he is also counsel for the Pakistan Railways for which he has been formally engaged. The learned Deputy Attorney-General also submitted that he cannot even imagine of disobeying the process issued by this Court or to be a party to it either directly or indirectly.
Knowing as I do, Mr. Asif Jan, the learned Deputy Attorney-General, I have no reason to disbelieve him. The result is that service in this case is complete in all respects. The arguments on preliminary objections by Mr. Fazl-i-Hussain were concluded yesterday. The rejoinder to the writ petition was filed by Mr. Iftekhar Ali Sheikh today, therefore, an opportunity was given to Ch. Fazl-e-Hussain to make further submissions on the preliminary objections. The opportunity was duly availed by him.
Mr. Asif Jan, the learned Deputy Attorney-General has also made submissions on behalf of the Federation of Pakistan, as well as, the Pakistan Railways on the preliminary question.
4. I have heard the learned counsel for the parties at length on the preliminary objections raised by the respondents and perused the material placed on the record with the assistance of learned counsel for the parties. It may be pointed out that no written statement has been filed by the Federal Government. However, Mr. Asif Jan, the learned Deputy Attorney-General has sought permission to adopt the written statements filed by the Pakistan Railways and the Karachi Port Trust. The permission is granted. The rejoinder statements filed by the petitioner have also been handed over to the learned Deputy Attorney-General and Mr. Fazl-i-Hussain.
5. The Chairman, Karachi Port Trust vide its statement, dated 28-11-1989 took the following stand before the Supreme Court of Pakistan in C.P.S.L.A. No,1179 of 1989:-- "It will be evident from the foregoing reasons that the delay in berthing or clearance of scrap cargo of MV Jonathan was due to the reasons beyond the control of Karachi Port. The Prime Minister of Pakistan has also directed all Government Agencies to help Messrs Ittefaq Foundries in clearance of their cargo, a photo copy of the Prime Minister's letter is attached for ready reference. Due to the circumstances beyond the control of Port authorities the iron scrap on MV Jonathan could not be unloaded despite the above-mentioned directive of the Prime Minister of Pakistan. However, if the Honourable Court orders that the scrap cargo be unloaded in preference to other essential commodities, the Karachi Port Trust will comply with the said order but it may have serious repercussions resulting in shortage of certain essential commodities and goods."
6. The Pakistan Railways took the following stand before the Supreme Court of Pakistan:-- " at present Messrs Ittefaq Foundries cannot be given any preference at the cost of Military requirements and the transportation of essential goods like foodstuff phosphate, POL etc. Much as the Pakistan Railways would like to move all the traffic offered to it and even though Railways may have wagons, but due to serious shortage of locomotives, the Pakistan Railways are obliged to shed much of the traffic in the private sector and some traffic even in the public sector of essential commodities. The position would be more clear in March, 1990."
7. A bare perusal of the above statement would show that the Prime Minister of Pakistan has directed all the Government Agencies including the Karachi Port Trust to help Messrs Ittefaq Foundries in clearance of their cargo. The question, therefore, which requires consideration is whether the Pakistan Railways, the Karachi Port Trust and the Federal Government have complied with the direction of the Prime Minister of Pakistan in letter and spirit in help releasing the cargo of Messrs Ittefaq Foundries. In the exercise of writ jurisdiction under Article 199 of the Constitution, this Court is competent to even record evidence to determine the legality of the act done or the proceedings undertaken. Refer Rahim Shah v. The Chief Election Commissioner of Pakistan PLD 1973 SC 24. 1, therefore, direct the Chairman Karachi Port Trust, the Chairman Pakistan Railways and the Secretary to the Government of Pakistan, Ministry of Communication, Islamabad to record their statements on 16-1-1990 as to what steps have been taken by them so far in giving effect to the direction issued by the Prime Minister for redress of grievance of the petitioner. This date has been given with consent of learned counsel for the parties. The aforesaid officials shall also cause the production of the entire record pertaining to this case on the said date. Ch. Fazl-i-Hussain and the learned Deputy Attorney-General shall also bring this order to the notice of the said officials.
8. The decision on the preliminary objections raised by learned counsel for the respondents involves decision on merits and, therefore, it will be inappropriate to give decision on the preliminary points leaving the main controversy about the liability of the respondents to supply the cargo, undcrtermined. Even otherwise, fragmentary decisions of this character have been described by their Lordships of the Privy Council in Nanhelal v. Umrao Singh AIR 1931 PC 33 as most inconvenient, which tend to delay administration of justice. The same view has been taken by the Supreme Court in Ibrahim v. Muhammad Hussain PLD 1975 SC 457. Respectfully following the ratio laid down in the said precedents, it will be appropriate that all the questions arising in the writ petition are decided together.
C.M. No,5372 of 1989
9. Mr. Iftekhar Ali Sheikh has submitted an application for rectifying the title of respondent No,2. The application is supported by an affidavit, a copy whereof has been handed over to Ch. Fazl-i- Hussain, who has no objection for rectifying the title of respondent No,2. Mr. Asif Jan, the learned Deputy Attorney-General on behalf of the Federation of Pakistan and the Pakistan Railways, has also not opposed the application. The same is, therefore, allowed. The rectification is permitted to be made in Court.