' This revision petition calls in question legality and propriety of order dated 24-11-1990 passed by learned District Judge, Lahore, in his capacity as the Qazi, to reject petitioner's application for recall of orders dated 20-3-1989 and 11-4-1989 which were passed ex parte against him.
2. Suffice it for the purpose of introduction that Mirza Israr-ul-Qadir, respondent No,1 the Mutwalli of a Wakf-ul-Aulad' created by late Sir Zafar Ali Mirza, commonly known as Zafar All Trust, submitted an application on 19-1-1980 before learned District Judge, Lahore for seeking permission to sell certain properties, including property known as Zafar Ali Mansions, comprising of seven residential flats, for the reason of their having become altogether unprofitable units, not yielding enough funds through rents to even suffice for their maintenance, to thereby be rendered as near dilapidation. He prayed that by virtue of their location those properties could fetch reasonable price, therefore, it would be worthwhile to sell the Wakf properties and to allow the sale-proceeds to be invested in some more income-yielding project for the interest and benefit of all the beneficiaries. This application was resisted by only four out of 20 beneficiaries but came to be ultimately allowed by granting the permission through the order dated 30-7-1980 passed by the then Qazi (now Mr. Justice Ijaz Nisar) which was upheld by this Court vide order dated 23-5-1983 in Civil Revision No,1478 of 1980 (since reported as Mian Inam Karim and others v. Mirza Israr-ul-Qadir and others (1983 CLC 1648). A petition for grant of leave to appeal (C.P.S.LA. No,905/1983) filed against it, was dismissed on 11-2-1984 by the Supreme Court. Permission to sell the properties having thus been made absolute, lengthy proceedings for the implementation thereof followed in a protracted course, mention whereof has been made in considerable detail, even though not completely, in the order passed by learned Qazi/District Judge (now Mr. Justice Ausaf All Khan) on 24-11-1990 (impugned herein). There is not much need for their being recapitulated herein as well, lest this judgment may get unnecessarily burdened, most of the details are being skipped over for the reason of their being not very strictly relevant hereto except that in the main application by the Mutwalli (No,6/1989), the petitioner Mian Muhammad Zafarullah was served by citation in newspaper and was proceeded against ex parte, which he challenged through an application dated 9-6-1990, captioned as brought under Order IX, Rule 13, C.P.C. The question raised herein is simply as to whether or not learned Qazi/District Judge had rightly acted in the exercise of his jurisdiction in declining to recall his order dated 11-4-1989, and rejecting the petitioner's application by his order dated 24-11-1990?
3. By this application under Order IX, Rule 13, C.P.C. Mian Muhammad Zafarullah, the revision- petitioner, who stood arrayed as respondent No,13 in the Waqf Petition (No,6 of 1989) filed by the Mutwalli for seeking permission of the Qazi for the sale of Zafar All Mansions, prayed for setting aside of order dated 20-3-1989, whereby he had been placed ex parte on the basis of service effected on him through citation in Daily Nawa-i-Waqt and also the consequent ex parte order dated 11-4-1989, the last part whereof may, for sake of convenience be reproduced herein:-- "Learned counsel for the Mutwalli has, however, insisted for acceptance of offer of Begum Tasaddaq Hussain as it is genuine and is also backed by the Local Commissioner appointed by the order of the Court...At this stage, Mr. Arfan Qadir, Special Attorney of Begum Tasaddaq Hussain also offered to pay the same amount that is Rs,1,35,00,000 (Rupees one crore, thirty-five lacs only). He has also made a statement in this respect.
(4) ....Moreover, Begum Tasaddaq Hussain has already produced pay-order of Rs,5,00,000 (Rupees five lacs only) in favour of the Mutwalli of the Trust from the same party, i,e, Pasban Bank, which fact in turn shows that the pay-order produced by the contesting respondents does not relate to the sale of property in question..I have no reason to decline the offer made by Begum Tasaddaq Hussain whose earlier offer was backed by the Commissioner (Sh. Maqbool Ahmad) and majority of the beneficiaries through their affidavits. The Mutwalli and his counsel also favour the acceptance of the offer made by Begum Tasaddaq Hussain. In the circumstances of the case, I accept her offer of Rs,1,35,00,000 (Rupees one crore, thirty-five lacs only) for the sale of property in question...."
4. It may be mentioned right here that learned counsel for the petitioner has not made out any basis whatsoever for interference being made on merits in the order dated 11-4-1989, relating to acceptance of sale-price of Rs,1,35,00,000 offered by respondent No,21. This order was passed in implementation of the main order permitting the sale of the Wakf property, passed on 30-7-1980 which was upheld up to the Supreme Court of Pakistan. The impugned order is founded on good reasons and deserves to be maintained.
' Mainstay of arguments of learned counsel for the petitioner is that upon the report of process- server being received on the notice issued for personal service of Mian Muhammad Zafarullah in village Thatha Qureshi, District Muzaffargarh, to the effect that he was not residing in the village but lives in Lahore, the process for his personal service ought to have been repeated at his Lahore address and that service by citation in the press should not have followed. Reliance was placed on the case of Muhammad Anwar 1985 SCMR 1228. For a number of cogent reasons set out by learned District Judge in paragraphs Nos.5 and 6 of the impugned judgment, he rightly came to the conclusion that the dictum in the case of Muhammad Anwar (ibid) is not applicable to the present case, because of its being based on entirely different facts. I also agree with the view of learned District Judge that the present case is to be governed by the case of Mst. Afzal Begum PLD 1979 SC 18 because Muhammad Zafarullah, petitioner, was himself responsible for his non-service in the normal course. This matter shall be fully discussed in the later portion of this judgment.
5. After carefully considering the facts and the arguments of learned counsel for the parties, I have not been able to bring myself round to see any merit in the contention raised for the petitioner about his having been condemned unheard. It seems that he has deliberately been playing the game of hide and seek in avoiding acceptance of service in his village Thatha Qureshi, which actually is the place of his permanent residence, inasmuch as in the main Waqf Petition (No,43/1980) filed by the Mutwalli, seeking permission to sell the Waqf property, he was served as respondent No,13 at this address in Thatha Qureshi, Distict Muzaffargarh and he has been participating therein without notifying any change of address for the purpose of his service. Again in C.P.S.LA. No,905/1983, filed by him alongwith some others, in the Supreme Court he has himself given his address of village Thatha Qureshi, District Muzaffargarh, which is clearly entered against his name as petitioner at Sr.No,13. Moreover, this petition under Order IX, Rule 13, C.P.C. For recall of the order was filed by him on 9-6-1990, more than one year after the order dated 11-4-1989 passed by the Qazi (in Petition No,6/1989), approving the sale of the property in question in favour of respondent No,21, and there is not even an assertion made about the source of his knowledge about the passing of the impugned order and it can be presumed that he knew it by himself, being in touch with the proceedings being taken in implementation of order for sale upheld up to the Supreme Court, being in the nature of execution proceedings.
' It is pertinent to note that a perusal of the record would show that this application under Order IX, Rule 13, C.P.C. Was filed by Mian Muhammad Zafarullah, petitioner, only after the vendee (Begum Tasaddaq Hussain) deposited the full sale price in the Court and she requested, through a separate application made to the Qazi for the eviction of his real brother Mr. Inam Karim and his cousins Abdul Qadir, Fazal Qadir as also Mr. Zulfiqar Ali Khosa from the four flats situated in the property in question which were in occupation of the afore-mentioned four persons who wanted inter alia to prevent their eviction from the flats. As a matter of fact, as is clearly demonstrated by a reading of an application (C.M. No,2/C-92) filed herein by Mr. Faiz Karim (respondent No,8), a brother of Zafarullah petitioner, the application under Order IX, Rule 13, C.P.C. Filed by the latter has been filed mala fide, at the instance of the said four persons occupying the flats, with a view to extract money from the vendee (Begum Tasaddaq Hussain) by unduly prolonging the litigation and harassing her. This stands clearly mentioned in different paragraphs of the said application, the sum total whereof is that ulterior motive for filing the application was to squeeze huge and substantial amount of money from the said vendee on strength and threat of the instant petition.
Further, that this plan was made between M/s Inam Karim (petitioner's younger brother) who played the principal role, his cousin and wife's brother Zulifqar Ali and cousins M/s. Abdul Qadir and Fazal Qadir and that according to information conveyed by the petitioner's youngest brother Muhammad Zafarullah, the petitioner of the instant revision petition, preceding the filing of the revision petition:--
(a) He was approached by his elder and the petitioner's younger brother Inam Karim accompanied by cousin Fazal Qadir for filing the appeal and he agreed to oblige his elder and petitioner's youngest brother Inam Karim provided he (Muhammad Zafarullah) would neither engage a counsel nor pay for the appeal and also not follow up the proceedings.
' The petitioner tried to dissuade him (Muhammad Zafarullah) on the plea that he should not file or sign power of attorney and documents of Appeal unless it is to be contested on merits for the interest of all the beneficiaries but he replied that he could not refuse his said elder brother.
(b) Subsequently after filing the appeal the appellant informed the petitioner in the previous year that Mr. Inam Karim told him (Muhammad Zafarullah) that they are getting huge sum of money about forty lacs from the vendee and are also arranging four lacs for him but he (appellant) declined for himself.
' It is thus evident that this application is patently male fide and filed for ulterior purposes.
6. A look at the family-tree of the beneficiaries would clearly show that five out of 26 beneficiaries are the real brothers of Zafarullah, petitioner; two of them are his real sisters; six of the respondents are the children of his deceased sister and remaining are his first cousins, uncles and nephews or are otherwise closely related to him. Out of these, 11 admittedly live in Lahore where Zafarullah, petitioner, also claims to be living. Four of them, including his real brorther Inam Karim throughout attended the Court proceedings in relation to Mutwalli's application (No,6 of 1989) and vehemently contested it. According to the contents of the petitioner's grounds of application under Order IX, Rule 13, C.P.C. And the ground of the present revision petition, all or some of the beneficiaries were in collusion with the Mutwalli. In other words, they all knew about the proceedings in question. No bad blood is alleged to exist between him and his abovementioned close relatives. In the above circumstances, it is unthinkable that none of them had conveyed and informed him about the pendency of these poceedings and the steps being taken therein. I am of view that he had knowledge of the Court proceedings and was deliberately staying away.
7. Since these proceedings were merely in implementation of the earlier order of the Qazi dated 31- 7-1980, permitting the sale of Waqf properties, therefore, it was for the petitioner himself to have kept in touch with the proceedings taken in pursuance of the said order. The law as laid down by the Supreme Court in Mst. Afzal Begum v. Y.M.CA. (PLD 1979 SC 18) in course of upholding the decision of the High Court, is that there was no legal requirement on the part of the Mutwalli to have the petitioner served all over again in a continuing proceeding. It was the petitioner's own fault, if he failed to inform the Court about the change of his address (if indeed there was a change), during the pendency of the continuing proceedings and to have supplied his new address. He is, therefore, himself to be blamed for not having been served at his residence but through citation in the newspapers. Relevant portion at page 25 of the report of Afzal Begum's case
(ibid) may usefully be reproduced here:-- "In this connection it is evident from the record that the respondent had filed his first appeal against the petitioners on 8-4-1964 and it remained pending till 29-4-1965 when it was eventually dismissed by the District Judge, Lahore. In spite of this the petitioners, who were the respondents in the appeal before the District Judge, allowed their old address to stand on the record and did not intimate to the Court about their actual or contemplated change (as alleged by them) in their address during the pendency of the appeal. For this they are themselves to be blamed. In the circumstances the respondent seems to have acted in perfect good faith in filing the appeal against them at their old given address and they could not be blamed for their alleged failure to file their new address in the appeal if indeed they had in fact abandoned their last known place of residence. According to the respondent's application dated 6-4-1966 made to the High Court under Order V, rule 20 read with section 151 of the Code the notices issued at the petitioner's address were returned unnerved with the reports that they could not be traced at the given address and that in spite of its best efforts their whereabouts could not be found. In these circumstances the Court had ordered that substituted service may be effected on them in the appeal. Indeed, in the circumstances the Court would have as well resorted to the provisions laid down in Rule 22 of Order VII of the Code and readily effected the service on the petitioners by affixation of the notices on the outer door of the house at their given address. But the Court found it more advisable in its discretion to adopt a better and comparatively less suspicious mode by directing that substituted service may be effected on them by publication of the notices in the Daily Mashriq in accordance with the provisions contained in sub-rule (1) of Rule 20 of Order V of the Code."
' In this case of Mst. Afzal Begum the Supreme Court upheld the finding of the High Court whereby it had come to the view that it can be presumed from the facts of the case that the party in question had full knowledge of the proceedings. Similarly, in another case, namely, Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403), it was held in a pre-emption case, that:-- "As a matter of fact we have come across cases where the father sells land and his son filed a suit for pre-emption, which cannot but lead one to assume that there was a collusion between the two....Such suits are very often mala fide."
In this connection, it may be pointed out that it is not without significance that in the course of arguments before me Mr. Fazal Elahi Shahid, Advocate representing Mr. Inam Karim, Mr. Fazal Qadir and Mr. Zulfiqar All Khosa, i,e, the persons occupying the flats in the property in question simply supported the petitioner Muhammad Zafarullah by adopting his contentions with a mere approval, without adding a word of his own. They had actually agreed to the Qazi's approval of the sale in favour of Begum Tasaddaq Hussain, as per the order dated 11-4-1989, read with that of 27-4-1989.
Further, Mr. Sher Nawaz Shah, Advocate for the legal-representatives (descendants) of respondent No,14 (Mst. Hijab Fatima deceased), also supported Muhammad Zafarullah, petitioner before me but it deserves to be noted that they had filed affidavits in Application No,6 of 1989 filed by the Mutwalli before the Qazi, to the effect that they had no objection to the sale of the property in question to Begum Tasaddaq Hussain. They have, therefore, got no locus standi to, at this stage, object to the sale.
8. I do not fmd any merit in the contention that petitioner Muhammad Zafarullah ought to have been got served with the summons at his residence in Lahore. If he may have in fact resided at Lahore ever, then it could be as a second house, not implying abandonment of the residence at village Thatha Qureshi and if he changed his residence during the pendency of the proceedings then it was his own duty to have notified to the Court his new address for service of summons. A look at C.P.S.LA. No,905 of 1983 filed by Muhammad Zafarullah petitioner and other beneficiaries, in the Supreme Court, against the Qazi's order dated 30-7-1980, shows he had himself given his address as Thatha Qureshi, District Muzaffargarh. (I have seen Advocate's copy of the C.P.S.LA. To myself verify this fact). Therein, his name with this address appears as petitioner No,13. As such, the counsel for the Mutwalli was justified in giving Mr. Zafarullah's Thatha Qureshi address for his service.
' Last but not the least, I agree with the submissions made by learned counsel for respondent No,21 and Mr. Muhammad Yaqub Khan, Advocate for the Mutwalli, that the order passed by the Qazi/District Judge for approving the sale of Zafar All Mansions in favour of Begum Tasaddaq Hussain, in pursuance of the general order permitting the sale passed on 31-7-1980, rather than being judicial, was administrative in nature because there was no 'lis' pending before the Qazi and no dispute was awaiting to be resolved by him.
' Be the above as it may, there is no error of law or jurisdiction involved in the orders passed by learned District Judge, Lahore and a hypertechnicality cannot be allowed to nullify the order of Qazi at this stage, after three years of agonisingly-lengthy proceedings, in the nature merely of implementation of an earlier order, have taken place before a District Judge/Qazi wherein he has passed a legally correct and just order in favour of respondent No,21. It is firmly established and settled that revisional jurisdiction is discretionary in nature and should not be exercised in a case where just order comes to be passed between the parties, even if in result of some illegality.
Reference in this connection may be made, among others, to the case of Messrs Ghulam Farid Muhammad Latif (reported as PLD 1954 Lahore 575). As such, it is not a fit case for exercise of discretionary power of revision.
9. In view of the above discussion, I do not find force in the revision petition, which is accordingly, dismissed with costs.
10. Before parting with the case, it must be mentioned that this frivolous and vexatious application under Order IX, Rule 13, C.P.C. Filed by Muhammad Zafarullah petitioner has caused considerable loss to the Waqf property and also to the other beneficiaries. As stated by learned counsel for the vendee-respondent No,21, Begum Tasaddaq Hussain had at one stage deposited the full sale price in the Court but the sale-deed could not be got registered because of the pendency of this application and the money had to be returned to her. If the four beneficiaries who were in occupation of four flats in the property in question had vacated the same then the Waqf would have by now earned huge amount and the beneficiaries would also have got substantial sums of money as their shares of the profits since about 2-1/2 years. It is, therefore, necessary to direct learned District Judge/Qazi, Lahore to forthwith enable the purchaser Begum Tasaddaq Hussain to pay the sale-price. Since by the order dated 27-4-1989, she has been allowed to pay the sale-price only after the four beneficiaries vacate the four flats in the property in question occupied by them, therefore, he is directed to also ensure that they vacate the same as soon as possible, and get the sale-deed registered after vendee has paid the full sale-price within the period specified in the Qazi's order dated 27-4-1989.