' Irshad Ahmad and nine others, the petitioners herein, made this application under sections 3 and 4 of the Contempt of Court Act, 1976, against Muhammad Jamil and four others, the respondents herein, for taking penal action against the latter on account of their intentional disobedience to the Court order. They also sought a direction against respondent No, 1 for delivering possession of the disputed premises to them pursuant to the ejectment order passed against him on 30-10-1985 as upheld by the learned Additional District Judge in appeal on 11-3-1991.
2. The allegations in the application are that Muhammad Jamil (respondent No, 1) was in occupation of House No, 10, Street No, 4, Bagh Munshi Ladha, Kacha Ravi Road, Lahore as a tenant under the landlordship of the petitioners, paying rent at the rate of Rs,250 per mensem to them.
They sought his ejectment from it on the basis of default and personal need. He contested the eviction petition on the ground that he had purchased the disputed house from the petitioners, vide an agreement to sell, dated 7-7-1980, and was in its possession as a vendee. Eventually his defence failed and the order of ejectment was passed against him on 30-10-1985. His appeal in the Court of Additional District Judge was accepted on 12-7-1988 and the case was remanded to the learned Rent Controller for fresh inquiry. The ejectment petition was again accepted by the Rent Controller on 7-9-1989 and the appeal of respondent No, 1 failed on 11-3-1991.
3. Having also failed in the second round, respondent No, 1 hit upon a plan to frustrate the ejectment order with the help of his relations and friends, by initiating frivolous litigation against the petitioners. First of all he got a false suit instituted from his brother Mian Muhammad Munir (respondent No, 2) on 8-4-1991 for perpetual injunction based on the allegation that he was in possession of the house as a vendee on the basis of a sale transaction, and obtained a stay order against the petitioners. They contested the suit and the trial Court, having come to know about the ejectment proceedings, rejected his plaint on 6-6-1991. Meanwhile he, acting through his attorney, Farooq Ahmad (respondent No, 3), also filed an objection petition before the Rent Controller/Executing Court against the ejectment order but this too was dismissed on 6-6-1991.
Respondent No, 2 filed an appeal against the rejection of his plaint which is still pending in the Court of an Additional District Judge, Lahore. During its pendency, respondent No, 3 independently brought a suit for permanent injunction against the petitioners, claiming possession of the disputed house as a mortgagee and it was eventually dismissed for non-prosecution on 29-3- 1992. Then Alhaj Muhammad Asghar Shahzad (respondent No,4) brought a suit in respect of the disputed house against the petitioners for perpetual injunction on the basis of lease agreement, dated 20-4-1991, and it is now pending in the Court of Mr. Muhammad Aslam Bhatti, Civil Judge, Lahore, to whom other pending matters referred to above have also been transferred by the learned District Judge, Lahore, on the application of the petitioners. Respondent No, 4, however, dissatisfied with his order, has filed C.M. No, 41/C of 1992 for the transfer of his suit from the said Court to some other Court and this matter is pending before this Court.
4. After relating the abovementioned facts, the petitioners allege that it is Muhammad Jamil (respondent No,1) who, in order to frustrate ejectment order passed against him many years ago and to perpetuate his illegal occupation of the house, continues to get false and frivolous suits, applications and appeals filed from his relations and friends with the help of their counsel Haji Muhammad Latif, Advocate (respondent No,5), indirectly challenging the ejectment order and all the respondents need to be proceeded against under the law of contempt.
5. On 13-41992, after hearing the learned counsel for the petitioners, respondent No,5, who is a local advocate, was summoned for 14-4-1992 and T.A. No,41-C of 1992 (wrongly described as C.M. No,41- C of 1992 in the petition) was also directed to be listed. On this date, respondent No,5 put in appearance and requested for adjournment in order to consult his clients. However, none appeared to persue TA. No,41-C of 1992 and it was dismissed for non-prosecution Proceedings in this contempt petition were adjourned and record of all the abovementioned cases was summoned from the Courts concerned. Respondents Nos.1 to 4 were also asked to appear.
6. Eventually on 30-3-1994, respondents Nos.1 and 2 alongwith their counsel Syed Baia All Nasim, Advocate, and respondent No,5 alongwith his counsel Mr. MA. Hayyee Advocate put in appearance.
Respondent No,4 appeared in person while respondent No,3 remained absent despite issuance of even coercive processes. The requisite record was also received. Alhaj Muhammad Asghar Shahzad (respondent No,4) stated that he had taken one room from the disputed house on rent from one Rashid in June 1992 for a year and on the expiry of the lease period he had returned the same to him. He further stated that during the lease period since Rashid wanted to eject him forcibly, he had brought a suit against him but as he had vacated the room on the expiry of lease period, he was not interested in persning the suit and had instructed his counsel Haji Muhammad Latif, Advocate (respondent No, 5) accordingly. He recorded his statement to that effect and, while doing so, he waivered on the rate of rent and description of the property so much that one could easily conclude that he had brought a false suit for perpetual injunction against one Rashid and Irshad Ahmad, one of the petitioners herein, at the instance of some one. Curiously enough, he did not even mention about his transfer application (TA. No,41-C of 1992) which was dismissed for non- prosecution on 14-4-1992. Perhaps he had no knowledge thereof. In any case, the frivolity of his suit, which is even now pending in the Court of Mr. Muhammad Aslam Bhatti, Civil Judge Ist Class, Lahore, and that of his transfer applications, one made before the learned District Judge, Lahore and the other moved before this Court, stands amply proved from his statement and it appears that he has been acting as a stooge for Muhammad Jamil (respondent No, 1) whose name had figured in the plaint of his suit as a so-called arbitrator who had intervened in his dispute with Rashid.
7. As regards the suit filed by Mian Muhammad Munir (respondent No,2), like his brother Mian Muhammad Jamil (respondent No,1) he also claimed himself as a vendee from one Muhammad Asghar for a sum of Rs,3 lacs on the basis of an agreement to sell, dated 3-12-1986. He alleged that the disputed house was jointly owned by Muhammad Asghar aforesaid, his mother Mst. Jhando, 6 brothers and 3 sisters and he (Muhammad Asghar) undertook to get the sale-deed executed and registered from his co-owners in his favour on one month notice, whenever he (plaintiff) so desired, on the payment of remaining sale price of rupees two lacs as he (vendor) had already obtained from him rupees one lac as earnest money. In this suit, he neither impleaded Muhammad Asghar vendor, nor any of his aforesaid relations, who were allegedly co-owners in the disputed house, as defendants, and only impleaded Irshad Ahmad and others, the petitioners herein, against whom he sought a perpetual restraining injunction on account of their alleged interference in his possession. This suit was also contested by the petitioners as defendants therein and in their joint written statement they, besides raising preliminary objections regarding non-maintainability; non- disclosure of cause of action, making the plaint liable for rejection under Order 7, rule 11, C.P.C., and misjoinder/non-joinder of necessary parties, took up the same defence that the suit had been brought by the plaintiff in order to frustrate the ejectment order passed against his brother Muhammad Jamil (respondent No, 1) on their eviction petition. The learned trial Judge, while disposing of the stay application of the plaintiff, seeking to restrain his opponents from interfering in his possession of the disputed house, vide his order, dated 6-6-1991, also rejected the plaint under Order 7, rule 11, C.P.C. On the ground of plaintiff's collusion with his brother Muhammad Jamil to nullify the order of ejectment passed against him in the ejectment proceedings initiated by the defendant in respect of the disputed house. He also commented adversary on his omission to implead Muhammad Asghar vendor and other alleged co-owners of the house, as defendants and his (plaintiff's) failure to bring a suit for specific performance of contract against them.
8. Aggrieved by this order, he went up in appeal before the learned Additional District Judge, Lahore. On 11-6-1991, the day it was presented, the learned Judge summoned the record of the lower Court for 7-7-1991 and directed the maintenance of status quo. On 7-7-1991, a Duty Additional District Judge adjourned it to 16-9-1991 for resummoning the record for preliminary hearing and also extended the stay order till then. Since then the appeal continued to be adjourned for preliminary hearing till 5-11-1991 when it was admitted to regular hearing. Since then till 23-6-1992, when its record was summoned by this Court, it continued to be adjourned for final hearing but nobody addressed final arguments. However, after the admission of appeal to regular hearing, there has been no stay order or order for maintaining status quo but despite this, the ejectment order passed in favour of the petitioners against Muhammad Jamil (respondent No,1) by the learned Rent Controller as far back as 7-9-1989, which attained fmality on 11-3-1991 on the rejection of the appeal filed by Muhammad Jamil (respondent No, 1), remains unexecuted, perhaps under the impression that execution proceedings stand stayed in the aforesaid pending appeal filed by Mian Muhammad Munir (respondent No,2).
9. The above resume would show that Muhammad Jamil (respondent No,1), in order to stall his ejectment from the disputed house at the instance of the petitioners persuant to the ejectment order passed against him by the learned Rent Controller, manipulated the institution of different suits and proceedings by his relations, friends and associates against them (petitioners) ever since 11-3-1991 when his appeal against the ejectment order, dated 7-9-1989, passed against him was dismissed and he has succeeded in his nefarious mission to impede the execution of this order.
Out of three suits, one filed by respondent No,2, the other by respondent No,3 and the third by respondent No, 4, the one instituted by Farooq Ahmad alias Muhammad Farooq (respondent No, 3) was dismissed for non-prosecution on 29-3-1992 and the objection petition filed by him as attorney of Mian Muhammad Munir (respondent No,2) was dismissed by the learned Rent Controller/executing Court on 6-6-1991. The suit filed by Alhaj Muhammad Asghar Shahzad (respondent No,4) is still pending in the Court of Mr. Muhammad Aslam Bhatti, Civil Judge, Lahore, but from his statement recorded in this Court it is obvious that he never filed this suit for the vindication of his own right, if any, and he had instructed his Advocate long ago that he was not interested in persuing it. Therefore, this suit shall also be deemed to have been dismissed for non- prosecution. The transfer application (TA. No,41-C/92), about which he does not seem to be even aware of, was dismissed by this Court on 14-4-1992 for non-prosecution. As regards the suit for permanent injunction filed by Mian Muhammad Munir (respondent No,2), its plaint was rejected by the learned trial Judge on 6-6-1991 and his appeal, as explained above, is now pending in the Court of an Additional District Judge at Lahore. In other words, out of three suits, two transfer applications, one objection petition and one appeal filed at different occasions by respondents Nos.2 to 4, mainly through their counsel Haji Muhammad Latif, Advocate (respondent No,5), in respect of the disputed property, only one appeal filed by Mian Muhammad Munk (respondent No,2) against the order, dated 11-3-1991, rejecting the plaint of his suit, which in reality is directed the ejectment order passed against his brother (respondent No,1), is pending.
10. There is a general complaint in the public giving rise to a widespread unrest and discontentment, especially amongst those who are unfortunately involved in litigation, that clever and dishonest litigants, in collusion with, or with the help of, a section of unscrupulous lawyers, are recklessly indulging in false and frivolous litigation against their opponents, particularly against the honest, simple and straightforward lot who either on account of some unavoidable compulsion take recourse to the law Courts themselves for the vindication of their rights, or they are otherwise involved in this rampant malady by their formidable opponents. We, almost daily, come across a sizeable percentage of false and frivolous cases, clearly manifesting the abuse of the process of Courts, but we continue either to overlook this painful phenominon or to frit and fume helplessly, perhaps for the reason that the law does not give us sufficient authority to firmly deal with the dishonest and mischievous elements in this field, or the law on the subject is so defective that if we make use of any provisions thereof, it creates more mischief than to curb it. The result is that the unscrupulous litigants and their lawyers, as in the instant case, are free to do anything against their opponents without any fear of accountability. As a necessary consequence thereof, the stream of justice stands so much plouted that, unless serious efforts are made by all concerned, especially by legislators and Judges, to clean it drastically, it is likely to choke completely, auguring a catastrophy for the system and the society. It is for all of us to ponder over and devise ways and means to tackle this problem effectively, but till such time a definite line of action is adopted, we have to make use of existing legal framework.
11. The petitioners, as argued vehemently by their counsel, stand completely exhausted physically, psychogically as well as fmancially, to further persue the false and frivolous litigation their opponent, namely, Muhammad Jamil (respondent No, 1), has involved them in and requested for its termination, by whatever means possible, through any legal process this Court could possibly apply, this contempt petition being one of them. It may be mentioned here that in response to the notice of this petition, respondent No,1 and 2 represented by their counsel Syed Baqar All Nasim, Advocate, respondent No,5 represented by his counsel MA. Hayee Khan, Advocate and respondent No,3 despite substituted service, even though coercive process, remained absent and was proceeded against ex parte. Learned counsel for respondent No, 1 denied the hand of his client in this litigation. He, however, admitted that ejectment order was passed against him but asserted that his brother Muhammad Munir, respondent No,2, was in possession of the disputed property.
Respondent No,5 supported by his counsel stated that he had been acting as a counsel for other respondents in the performance of his professional duties as an advocate and if he did anything unusual, he was sorry therefor.
12. After carefully considering the facts and circumstances of this case and scaning through the relevant provision of various laws, I am of the view that the provisions of section 151, C.P.C. Can appropriately and effectively be made use of to provide necessary relief to the petitioners by quashment of those proceedings which appear to be false and frivolous, though hitherto these provisions do not seem to have been utilized in this manner and for this purpose. Quashment of proceedings in the criminal litigation by invoking the provisions of section 561-A, Cr.P.C. Is a common remedy, generally availed' of by the litigants in appropriate cases, but despite analogous provisions contained in section 151, C.P.C., the litigants and their lawyers have not invoked them in civil proceedings. To make this concept more clear, the provisions of section 151, C.P.C. And section 561-A, Cr.P.C. Are reproduced hereunder:-- "Section 151, C.P.C.
' Saving of inherent powers of Court.--Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
' Section 561-A, Cr.P.C.
' Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice."
13. Thus it will be seen that the provisions of both the said sections being almost verbatim copy of each other, both can and should be, applied and utilized for achieving similar purpose. If in order to do justice between the parties and to prevent the abuse of the process of Court, frivolous criminal proceeding pending in any subordinate Court can be quashed or demolished by the High Court under section 561-A, Cr.P.C., under section 151, C.P.C. It is equally competent to quash or undo the frivolous or vexatious civil proceedings pending in any Civil Court subordinate to it. The scope of its Constitutional jurisdiction is still wider and in appropriate cases it can also be invoked. In my opinion, the scope of section 151, C.P.C. Is rather more wider in its application and it can be utilized by every Civil Court in respect of its own proceedings and by the superior Courts in relation to the proceedings of the subordinate Courts. For instance, the District Judge in relation to the proceedings in the Courts of Civil Judges, the High Court in respect of proceedings in any Court on the civil side subordinate to it, and the Supreme Court, which also has vast powers under Article 187(1) of the Constitution, in respect of any proceedings on the civil side in any Court in the country.
14. In view of the above, this petition made under the law of contempt, is converted into a petition under section 151 of the Code of Civil Procedure and the proceedings of appeal pending in the Court of Mr. Sher Zaheer, Additional District Judge, Lahore, or his successor, filed by Mian Muhammad Munir (respondent No,2) against the petitioners are hereby quashed under the said section and the concerned learned Rent Controller/Executing Court is directed to immediately get the possession of the disputed house delivered from Muhammad Jamil (respondent No,1) to the petitioners with the help of the Police. The learned District Judge/Duty District Judge shall supervise the compliance of this order and submit a report to this Court within a week. If the learned Rent Controller/Executing Court is on vacation, he shall, under his own warrant, get the possession delivered as aforesaid and in that event the execution proceedings shall stand transferred to him.
15. So far as the request of the petitioners for penal action against the respondents, for which this petition was initially moved, is concerned, their application made under section 476, Cr.P.C. For the prosecution of respondents Nos.1 and 2 under section 193, P.P.C. Is already pending in the Court of Mr.Zawar Ahmad, Civil Judge, Lahore. Since Farooq Ahmad alias Muhammad Farooq (respondent No,3) and Alhaj Muhammad Asghar Shahzad (respondent No,4) are apparently also sailing in the same boat with Muhammad Jamil (respondent No,1) and his brother Muhammad Munir (respondent No,2) and the role played by Haji Muhammad Latif, Advocate (respondent No,5) as an abutter also does not appear to be less serious, they all shall be arraigned as respondents/accused in the said proceedings under section 476, Cr.P.C. And shall be proceeded against in accordance with law from the very inception as the proceedings so far taken against the two the respondents/accused do not appear to be in order and with the addition of three new respondents/accused de novo proceedings will even otherwise have to be taken. The same shall be finilized within a period of three months under intimation to the Deputy Registrar (Judicial) of this Court. The learned District and Sessions Judge, Lahore shall depute a good prosecutor to assist the Court. If Mr. Zawar Ahmad, Civil Judge has been transferred, his successor shall carry out these directions.
Order accordingly. company under the control of the Federal Government, the respondent No, 2 as its Chairman and with the approval of the concerned Minister could pass the impugned order.
15. In the former case only the Board of Directors was competent to take any decision in respect of the services of the petitioner. There is no dispute to the fact that the impugned order has not been passed by or under the orders of the Board of Directors. It was passed by respondent No, 2 in his capacity as Chairman FCCCL whereas under the law i,e, Article 7-F of the Economic Reforms Ordinance, 1972 he had no authority to do so.
16. The position remains the same even if the FCCCL is treated as a private limited company because in that situation too the authority of respondent No, 2 would be amenable to the Companies Ordinance, 1984. The memorandum and Articles of Association of the FCCCL coupled with the provisions of the Companies Ordinance shows that an order regarding the services of the petitioner could not be passed of his own by respondent No, 2 as management of the company vested in the Board of Directors. There is nothing on record to show that respondent No, 2 was directed or authorized by the Board of Directors to terminate the services of the petitioner.
17. In fact the respondents have made it clear by their own averments that the impugned order was not passed by or under the orders of any Board of Directors. They had no hesitation in saying that respondent No, 2 terminated the services of the petitioner simply with the approval of the "Minister Incharge". This alone is enough to invalidate the impugned order. Whether it be a case of Article 7-F of the Economic Reforms Order, 1972 or management of a private limited Company under the Companies Ordinance, 1984, the Minister had no role whatsoever in the management of the FCCCL.
18. There is still another aspect of this issue. Even if it be assumed for the sake of arguments that as Managing Director or Chairman respondent No, 2 had the authority to terminate the service contract of the petitioner, the action taken by him is not sustainable in law for the simple reason that the impugned order is not based on his independent judgment.
19. This order is result of the intervention or, in the words of the respondents, approval of the Minister Incharge. It is an established proposition of law that where an authority making the order has acted on the instructions or intervention of a foreign authority and has desisted from applying its independent mind, the order made or action taken in pursuance of such intervention is not maintainable. The impugned order is, therefore, liable to be struck down on this sole ground especially when the "Minister Incharge" does not figure any where in the Economic Reforms Order, 1972, the Companies Ordinance, 1984 or the Memorandum and Articles of Association of the FCCCL.
20. Now, a word about the preliminary objection of the respondents against the jurisdiction of this Court. According to the respondents, the FCCCL being a private limited company the terms of the employment of the employees of the Corporation are subject to the contract freely entered into by the parties and the employment is governed by the principle of master and servant. It has thus, been argued that no Constitutional or legal right of the petitioner had been infringed entitling him to invoke the extraordinary jurisdiction of this Court.
21. The plea of the respondents is self-contradictory. They have themselves vehemently contended that as the Government had invested huge public amount in the FCCCL, the industries included in it were under the control and superintendence of the Federal Government. The Ittehad Chemicals, a concern of the FCCCL, is also a managed establishment within the meaning of Article 2(aa) of the Economic Reforms Ordinance, 1972 and is owned, managed and controlled by the Federal Government. Respondents Nos. 1 and 2 are appointed by the Federal Government under Article 4 of the aforementioned Order and for discharging their function are subject to the orders and directions of the Federal Government as contemplated by Article 4 (3) ibid. They are performing functions in connection with the affairs of the Federation of Pakistan and as such are amenable to the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan.
Moreover, Corporation under the control of the Federal Government is included in the definition of person in Article 199.
22. In this view of the matter, the management of FCCCL cannot deal with the affairs of the Corporation in the manner it deemed fit. The discretion of the respondents as employers is also not arbitrary. It is essentially subject to the law and within the ambit of Article 199 of the Constitution.
The principles of natural justice would also be attracted. Strict compliance with the provisions of law as also the rules of the Corporation is a legal obligation of the respondents. The performance of functions by them can, therefore, be judicially reviewed by the superior Courts in exercise of their Constitutional jurisdiction. The objection raised by the respondents in this behalf has no force and the petition is fully competent.
23. For what has been stated above, the impugned order cannot be maintained. It is declared to be without lawful authority and of no legal effect. The petition is accordingly allowed with all the back benefits admissible to the petitioner under the terms of his employment.