1. This case has been called more than once today but none has been present for the defendants. On previous occasions also no appearance was put in from the side of the defendants even though specific notices were addressed to their learned counsel at Hyderabad for such dates.
2. In the above situation, I have no option but to dismiss C.M.A. No.7532/89, an application for leave to defend under Order XXXVII, Rule 3, C.P.C., riled by the defendants. Such is dismissed.
3. The plaint is on oath and decree, on that basis can, accordingly, be passed. I have, however, disallowed interest (which also is claimed here) in a number of cases, starting with Aijaz Haroon v.
4. Inam Durrani PLD 1989 Kar. 304 and such view, on principle, has also the support of Miss Farhat Jaleel v. The Province of Sindh and others PLD 19W Kar. .342, a Division Bench judgment of Tanzil-ur- Rchman, A.CJ., and Imam Ali G. Kazi, J. In addition the humble opinion expressed in the case of Aijaz Haroon ibid. Is also, as (if now, strengthened on the Supreme Court dicta in the case of Aziz A.
5. Sheikh v. Commissioner of Income-tax PLD 1989 SC 613 where, in the context of Articles 2-A and 227 of the Constitution, in the words of Muhammad Afval Zullah, J., as he then was, it has been opined as under:- "Article 227(l) not only requires that all existing laws shall be brought in conformity with the Injunctions of Islam but it also commands as a mandate that 'No law shall be enacted, which is repugnant to such injunctions'. It is a command to all law-making bodies and functionaries. It will be anomalous to assume that although in Article 227 there is a command to all the legislative bodies not to enact any law which is repugnant to Islamic Injunctions, nevertheless it permits the functionaries of the State a[ all levels to go on enacting rules like those of evidence which have the force of law In the context of the present case neither the legislature under the command contained in Article 227(l) has the power to enact a law in any field including those relating to Taxes, which arc repugnant to Injunctions of Islam, nor any other functionary including the Income- --tax Authorities has any such power to lay down any unislamic rule, which has a force of law.
6. What was held in Muhammad Bashir's case and for that matter Haji Nizam's case, can now be further supported with reference, to Articles 2-A and 227(t) of the Constitution, as also what has been held and enforced from amongst the Principles of Policy by this Court, in the case of Ms. Benazir Bhutto."
7. Again in Ghulam Ali v. Ghulam Sarwar Naqvi (Mst.) PLD 1990 SC 1, the Supreme Court addressed itself to Islamic Injunctions thus: "The treatment of women in Islam particularly those who arc close relatives like daughters, sisters, wives, mothers and others similarly placed, if one studies carefully, as already discussed, has to be self- enforcing The test has to be Islamic teachings. On this view also the petitioners' case would be covered by section 23 of the Contract Act and their claim being immoral on the touchstone of Islamic principles cannot be granted. (See also Ms.Bcnazir Bhutto's case PLD 1988 SC 416).- The principle may also have been sustained on the observations of the Lahore High Court in Ittefaq Foundry v. Federation of Pakistan PLD 1990 Lahore .121.
8. However. In consonance with the view that has been taken in the case of Aijaz Haroon ibid., the plaintiff is entitled to the real worth of the loaned amount in terms of constant value of the Rupee, as on the date the debt was incurred or fell due. It needs no reiteration that the whole edifice of Islam is founded on equity, justice and fair-play. A legal tender, in modern times, is no longer measured in gold or silver. Instead, paper currency is in vogue every--where. Even the so-called Gold Standard, once holdings away, has been eased out by passage of time in the face of the current monetary dispensations. The world economics, co-relatively, are at times beset with inflation and at others with recession or depression. In inflationary times and locations the real monetary equivalent of the original debt or obligation has, in terms of count, to be more while the converse would apply to times and places subject to economic recession, In either situation, in all fairness, an equaliser or constant value has to be found and determined. Such constant value, in the context of specific periods and places can be determined, speaking strictly, on the basis of a proper enquiry by appointment of a Commissioner but, in practice, that method, in a number of cases, has borne little fruit and, therefore, it least for the present, a handy device and a ready reckoner has to be found. Such difficulty arose and was considered, inter alia, in the case of Muhammad Rafiq Muhammad Bashir (Pvt.) Limited v. Sharif Cotton Ginners and others (Suit No.1280 of 1989). The following passage occurs in that case:-- "In view of the ratio in the case of Aijaz Haroon v. Inam. Durrani PLD 1989 Karachi 304 1 can decree the suit for the principal sum of Rs.6,33,385.49 only, but on the basis of the constant value of the Rupee, as on 22-3-1989. Since, according to the acknowledged official position, the inflation rate in the country is, approximately, running in two digits, such constant value of the Rupee should be, roughly, assessable at the rate of 10% from 22-3-1989 up to the date of realisation and necessary calculations, without any rests, for the purposes of the recovery would be made accordingly. I have opted for not passing a preliminary decree in this suit, in consonance with the view taken In re: Aijaz Haroon for two distinct reasons: one, because the intervening period between the due date for payment and that of the decree is, comparatively, short and, two, because the mode adopted here is simpler and avoids delays, such as, regrettably, have, in practice been encountered in the case of Aijaz Haroon and some others similarly decided."
9. In other cases the equaliser was worked out at 7% per annum. Up to and prior to 31-12-1983 and thereafter at 10% per annum on the premise that during the period first mentioned the depreciation in the value of the Pak Rupee was approximately and around that figure.
10. Mr. Inamul Haq, for the plaintiff, questioned the foregoing basis and wanted to be apprised of the data for these ready reckonings. I am afraid no sanctity attaches to these figures and none is claimed. A prompt and workable method has been evolved to meet the practical difficulties in securing accurate calculations to meet the requirements of a given situation. However, even so, some official publications and pronouncements may furnish near adequate supporting material.
11. The object has been to ensure that no injustice is occasioned to anyone, be he a debtor or a creditor. At the same time, the figures, in fixed percentages, remain not a little regrettable.
12. As a rule, for any accurate analysis and working relevant price indices have to be resorted to. Such, inter alia, are different for wholesale and consumer, prices. In all such cases, however, a base month or year has to be the reference or starting point, which in the case of a debt would be the date the debt was contracted or became due. Thus price indices of consumer and wholesale prices, taking 1980-81 to be the base year, indicate Rs.100 in the base year to be the equivalent of Rs.199.29 and Rs.206.91 in November, 1990. (See Monthly Statistical Bulletin for December, 1990, issued by the Federal Bureau of Statistics, p. 97). This, however, is not conclusive of the matter. In the first place, such figures have got to be on the conservative side. Besides, no one can claim the same to be comprehensive. At any rate, no allowance is made therein of rents (returns on land) and wages (payments for labour). About 10% rate of inflation on average, may, therefore, be substantiated only on approximations. Salary indexations, officially devised- and implemented, appear, also to be substantially, to the same effect.
13. Next and in addition, Mr. Inamul Haq has pointed out that Banks are public bodies. They have to maintain staff and establishments besides incurring other day to day relative expenditures and such, on the same reasoning as above, ought to enter in the calculations. In the context of lendings by banking institutions, the argument has substance. It would seem that this objection will, in effect, be met if an amount of 2% per annum is allowed to a lender, if a banker, on the principal amount due from the date it fans due up to the date of recovery. Such, though again an approximation, hopefully, should meet the recurring expenses of banking companies. It may, however, be worth adding that these expenses, exclusively devised for bankers, would always be in the nature of accretions, though the equaliser can operate as an ostensible accretion in inflationary times and depletion in deflationary situations, for he who borrows must return the same in real worth to him from whom he borrows.
14. Accordingly, but fully reserving the rights of the plaintiff under the law, if any, the following figures have been submitted by it, which have to be accepted both in the way of an equaliser and towards defraying the above said recurring expenses of the plaintiff Bank:-- I. D. A. Loan
(i) Principal amount.Rs. 550,000.00 (ii)Accretions (7% + 2%) calculated at 9%Rs. 021,658.00 per annum from the date of loan to 31-12-1983.
15. (iii)Accretions (10% + 2%) calculated at 12%Rs. 455,671.00 per annum from 1-1-1984 to 26-11-1990.
16. TEMPORARY OVER-DRAFT ACCOUNT (i)Principal amount.Rs. 165,808.00
(ii) Accretions (10% + 2%) calculated at 12% perRs. 113,252.00 annum from the date of advance viz. 10-1-1985 to 26-11-1990.
17. TOTAL: Rs. 1,306,389.00 In consonance with the foregoing, I accordingly decree the suit for a sum of Rs. 1,306,389 (Rupee one million three hundred and six thousand and three hundred eighty nine only) and a further equaliser at 10% per annum together with banking expenses at 2% per annum to be calculated on the principal amount(s) due, without any rests, till realization.
18. Decree accordingly.