1. C.MA. No,6096 of 1991: ' This is an application under Order 37 of rules 1, 2 and 3, C.P.C. moved by defendant No,1 for seeking permission to defend the suit. The plaintiffs do not oppose this application and the same is accordingly allowed.
2. C.MA. No,5674 of 1991: ' As would appear from para. 3 of the plaint and its prayer clause, no relief is sought against defendant No,2 who is, as is clear from the averments made in the plaint, only a pro forma defendant vide para. 8(c) of C.MA. No,1471 of 1992 and per statement made at the bar by learned counsel for the plaintiff, the plaintiff-company withdraws the suit against defendant No,2. In view of this position, this application becomes infructuous and is dismissed.
3. C.MA. No,1471 of 1992: This is an application jointly moved by the plaintiffs and defendant No,1 under Order 23, rules 1 and 3, C.P.C. whereby the plaintiffs withdraw the suit as against defendant No,2 and the plaintiffs and defendant No,1 compromise the dispute in accordance with the terms and conditions laid down therein. It may be noted that defendant No,2 is also, like the plaintiffs, a banking company and had provided financial accommodation to defendant N o.
4. 1.
5. ' Counsel of defendant No,2 opposes the withdrawal of the suit as against it (defendant No,2) and claims that defendant No,2 is a necessary party to the suit in view of Order 34, rule 1 and Order 34, rule 13, C.P.C. and cannot be deleted and in support of this view relies on AIR (sic) Calcutta 446, AIR 1930 All. 113 and AIR 1941 Mad.
710. I am, however, of the view that this is not a suit for foreclosure and defendant No,2 is not going to be adversely affected by any inter se arrangement between the plaintiffs and defendant No,1 because defendant No,2 shall still be free to take all the steps available to it under the law for the safeguard of its interests and the compromise decree between the plaintiffs and defendant No,1 cannot adversely affect defendant No,2 as to its claims against the plaintiffs. I would therefore dismiss the suit as against defendant No,2 and decree the suit as against defendant No,1 in terms of the compromise arrived at between the parties as per details in this application. Plaintiffs and defendant No,1 shall bear their own costs whereas the plaintiffs shall bear the costs of defendant No,2. It is however clarified that defendant No,2 as the prior mortgagee shall be entitled to notice of Execution Application, if filed by the plaintiffs for the execution of the decree.
6. Order accordingly.
7. 190 MLD 650 [Karachi] Before Mamoon Kazi and Kamal MansoorAlam, JJ BAWANY SUGAR MILLS LTD.---Petitioner versus THE CANE COMMISSIONER AND DIRECTOR OF AGRICULTURE, EXTENSION, HYDERABAD SINDH and another---Respondents C.P. No,D-780 of 1983, heard on 18th December, 1991. (a) Sugar Factories Control Act (XXII of 1950)--- ----Ss.10 & 14---Reservation area for supply of cane by Cane Commissioner-- Modification of reserved area---Effect---Cane Commissioner passed first order on 13th November, 1972 whereby certain areas including that of respondent were reserved for supply of cane to petitioner mills--- Fresh order on 23-10-1982 was passed whereby certain modification was made in area reserved for supplying sugarcane to petitioner---Area of respondent continued to be reserved for petitioner---Objection of petitioner regarding subsequent order that no such order could be passed after commencement of crushing season i.e. 1st October, was turned down on the ground that prior to issuance of said order, area of respondent fell within zone reserved for petitioner. [p. 652] A
(b) Sugar Factories Control Act (XXII of 1950)--- ----S.14---Sugar Factories Control Rules, 1950, R.17---Award of compensation to cane grower by Cane Commissioner---Validity---Petitioner sugar mills challenged order of Cane Commissioner, whereby compensation was awarded to respondent/cane-grower against petitioner---Petitioner contended that respondent's area was "reserved" and not "assigned" to it, therefore, it was incumbent upon respondent to make an offer in prescribed form under R.9(2) of Sugar Factories Control Rules, 1950 in respect of quantity of cane for sale and it was after such offer that petitioner was to enter into an agreement and in absence of agreement between parties, arbitration provided for under R.17 of said rules could not be invoked---Held, S.14 of Sugar Factories Control Act, 1950 and R.10 of Sugar Factories Control Rules, 1950 related to order of Cane Commissioner declaring an area to be "assigned" for a factory, therefore, order did not relate to merely reservation of zones for sugar mills---Petitioner could not be allowed to take advantage of its own failure to comply with provisions of said Act and Rules by not entering into prescribed agreement-- -Constitutional petition, thus was dismissed. [p. 652] B
(e) Natural justice, principles of-- - ---Opportunity of hearing---Representative of petitioner filed affidavit stating that he had been attending office on every adjournment and that contention that petitioner remained absent on all dates except one was not factually correct---No rebuttal being in counter-affidavit of respondent, petitioner, held, was not allowed opportunity of defence. [p. 653] C
(d) Constitution of Pakistan (1973)-- - -Art .199--Notification prescribing scale of compensation---Legality-- Respondent failed to point out any provision of relevant law empowering such notification---Notification, thus was issued without lawful authority. [p. 653] D Rasheed A. Akhund for Petitioner. Date of hearing: 18th December, 1991.
8. ' KAMAL MANSUR ALAM, J.---This petition has been filed by the petitioner challenging the order, dated 20-9-1983 passed by the Cane Commissioner, respondent No,1, in proceeding under Rule 17 of the Sugar Factories Control Rules, 1950, whereby he has awarded a sum of Rs,77,500 to the respondent No,2. Brief facts of the case are that the petitioner-sugar mill used to purchase sugarcane from the respondent No,2 who was a cane grower in the District Badin. It is stated that the first order passed by respondent No,1 in exercise of powers under sections 10(1) and 14 of the Sugar Factories Control Act, 1950, was on 13th November, 1972, whereby certain areas in District Badin were reserved for supply of cane to the petitioner and such area included that of the respondent No,2 being Deh Kari Muhammad Ali. A fresh order under sections 10(1) and 14 of the said Act was passed by the respondent No,1 on 23-10-1982 whereby certain modification was made in the areas which were supplying cane to the petitioner, however, admittedly the area of the respondent No,1 continued to be reserved for the petitioner. The petitioner contends that its crushing season of 1982-83 commenced from 3-9-1982 and ended on 14-5-1983. It appears that in the earlier part of the crushing season 1982-83 very few indents were issued by the petitioner to the respondent No,2 with the result that about one hundred truck loads of cane were still lying in the field of respondent unlifted in March, 1983. Accordingly, the respondent No,2 made an application to the respondent No,1 on 12-3-1983 whereby he brought these facts to the notice of the respondent No,1 and prayed for compensation. It appears that the respondent No,1 issued notices of the application to the petitioner and after several adjournments passed the impugned order dated 20-8-1983 awarding a total amount of Rs,77,500 to the respondent No,2.
9. Mr. Rasheed A. Akhund, learned counsel for the petitioner, has challenged the impugned order mainly on three grounds. His first contention was that the order dated 23-10-1982 whereby the area of the respondent No,2 was reserved for or assigned to the petitioner was not a valid order for it was passed on 23-10-1982 when no such order could be passed after 1st October and for this he placed reliance on the case of Messrs Mirpurkhas Sugar Mill Limited v. Consolidated Sugar Mills Ltd.
10. PLD 1987 Kar.
225. In the present case, however, we find that even prior to the issuance of the said order and apparently since 1972 the area of the respondent No,1 fell within the zone reserved for/assigned to the petitioner's mill and as such the said order dated 23-10-82 will not be of much relevance in so far as points involved in the present case are concerned. The next contention was that as no agreement was entered into between the petitioner and the respondent No,2 no arbitration could be invoked under Rule 17 of the Sugar Factories Control Rules, 1950 for under the said rule the condition precedent for the holding of arbitration was that the dispute should be in respect of an agreement referred to in the rules. It was pointed out that the agreement referred to in the rule was the agreement mentioned in Rule 9 of the said Rules. It was submitted that under both the orders dated 13-11-1972 and 23-10-1982 passed by the respondent No,1 the area of the respondent No,2 was "reserved" for the petitioner and not "assigned" to it and as such it was contended that it was incumbent upon the respondent No,2 to make an offer in the prescribed form under Rule 9(2) in respect of the quantity of cane for sale and it was after such offer was made that the petitioner was to enter into an agreement with the respondent No,2. However, as in the present case no such offer was made no agreement was entered into between the parties and, therefore, the arbitration provided for under Rule 17 of the said Rules could not be invoked. We are not impressed by this argument for it appears from both the aforesaid orders dated 13-11-1972 and 23-10-1982 of the respondent No,1 that these were passed under section 10(1)(2) as also under section 14 of the Sugar Factories Control Act, 1950, read with Rules 7(1)(2) and 10(1) of the Sugar Factories Control Rules, 1950. The aforesaid section 14 and the rule 10 relate to an order of the Cane Commissioner declaring an area to be assigned for a factory and therefore, we are unable to agree that the order related merely to reservation of Zones for the sugar mills. We feel that the petitioner cannot be allowed to take advantage of its own failure to comply with the provisions of the said Act and the Rules by not entering into the prescribed agreement. But even otherwise we find from the impugned order that it has been passed in exercise of powers under rule 17(1) and rule 9(6) of the Sugar Factories Control Rules, 1950. Rule 9(6) reads as under:##TED## "9(6). In case of a dispute where a particular system adopted for the purchase of grower in the reserved area is equitable or not the dispute may be referred to the Cane Commissioner whose decision shall be final."
11. ' The main grievance of the respondent No,2 appears to be with regard to the system adopted by the petitioner for the purchase of the crop of the respondent No,2 and inequitable issuance of the indent by the petitioner resulting in losses to him and, therefore, the impugned order would also appear to be covered under the above-quoted sub-rule (6) of Rule 9.
12. The last contention raised by the learned counsel for the petitioner was that the impugned order was passed by the respondent No,1 in utter disregard of the principle of natural justice inasmuch as the petitioner was denied the opportunity of hearing. He submitted that on each date of hearing in response to the notices of the respondent No,1 the petitioner attended the office of the respondent No,1 but the case was adjourned on every date and, C therefore, the contention of the said respondent that the petitioner remained absent on all the dates except one is not factually correct.
13. In the affidavit filed by the Deputy Cane Manager of the petitioner he specifically stated in para. 4 that he appeared before the respondent No,1 but the said respondent used to adjourn the case.
14. There is no rebuttal to this averment in the counter-affidavit of the respondent No,2. As such we feel that the petitioner was not allowed opportunity of defence. The learned counsel also questioned the authority of the respondent No,1 to issue Notification dated 15-6-1983 prescribing the scale of compensation on the ground that no such power vested in the said respondent. The learned Advocate-General appearing for the respondent No,1 failed to point out any provision of the said Act or the Rules empowering the respondent No,1 to issue such Notification. We are, therefore, of the view that the said Notification was issued by the respondent No,1 without lawful authority and is, therefore, of no legal consequence.
15. ' In the result, the impugned order dated 20-9-1983 passed by the respondent No,1 is set aside and the case is remanded to the said respondent for a decision afresh after giving opporunity of hearing to the parties. The parties will be entitled to adduce evidence, if any, before the respondent No,1. The petition is allowed in the above terms. The parties are left to bear their, own costs.