' The learned counsel for the parties addressed arguments in Civil Revision No,11 of 1995 and submitted that exactly the same is the position of Civil Revision No,10 of 1995, therefore, the same are being disposed of by this judgment.
2. The facts relevant are that the respondents filed a suit for recovery of money on account of supply of goods. Along with the main suit they moved an application under Order XXXVIII, Rule 5, C.P.C. For attachment before judgment of the property of the petitioneRs, The petitioners contested the suit as well as the application. The trial Court after hearing the arguments accepted the application vide order dated 7-12-1994. Now the present revision petition, which came up for hearing on 4-1-1995 when preadmission notice was issued to the respondents who have appeared through Mr. Mushtaq Ahmad Khan, Advocate and contested the petition. The same has been treated as a notice case with the concurrence of the learned counsel for the parties.
3. The learned counsel for the petitioners argued that the claim in the suit was fabulously inflated.
In this behalf he referred to the plaint. According to the learned counsel the principal amount claimed is only about Rs,22,00,000 while the remaining amount is just damages and other expenses. It is added that there was no sufficient material available on the record to grant the application. The next argument is that attachment before judgment is an extraordinary remedy, therefore, to be resorted to in exceptional situations. The next submission is that the Courts in Pakistan have no jurisdiction to entertain and decide the suit. The arguments are concluded with the submission that the trial Court failed to appreciate that the application was made with ulterior motive and could not be granted without proper investigation. The learned counsel in this behalf referred to the cases reported as Associated Drillers Ltd. v. Dirk Verstoop B.C., Karachi PLD 1979 Kar.
734, Fahmida Iftikhar Ahmad v. Mirza Javed Akhtar PLD 1979 Lah. 689; Travel Agents Association of Pakistan v. Skyline Travels 1992 CLC 1644; Virasat Ullah v. United Bank Ltd. PLD 1975 Lah.17; Faqir Ali v.
Muhammad Hayat PLD 1976 Lah. 298; Print Pack (Pvt.) Ltd. v. Baluma Date Packing Ltd. 1987 CLC 1734 and Faqir Ali v. Muhammad Hayat PLD 1976 Lah.
298.
4, On the other hand, the learned counsel for the respondents argued that the application was supported, as required by law, by an affidavit while the reply was not supported by counter- affidavit. Therefore, its contents would be presumed correct. In this behalf the learned counsel referred to Jamal Shah v. Azad Government of State of J&K 1991 MLD 1243. The learned counsel argued that the provisions of Order XXXVIII, Rule 5, C.P.C. Were fully attracted and it was a fit case for attachment before judgment. In this behalf the learned counsel referred to the case reported as Shirkat-i-Ahbab v. National Bank of Pakistan PLD 1969 SC 349. It is added that the object is to prevent attempt to dispose of the property with a view to defeat the decree likely to be passed. The learned counsel in this behalf referred to the case reported as Mohiuddin v. Province of East Pakistan PLD 1962 SC 119. It is argued that it was pleaded in the application that the petitioners are out to alienate their property and this information was confirmed by the local Patwari, who was approached by the petitioners for issuance of copies of Revenue Record. It is added that the petitioners by their subsequent conduct themselves proved the allegations of the respondents. It is submitted in this behalf that after the institution of the suit and issuance of show-cause notice in the application for attachment before judgment they proceeded to exchange agricultural land situated in Chak No,156/9-L, Tehsil and District Sahiwal vide exchange deed dated 15-11-1994 and mutation was got sanctioned on 8-1-1995 after getting the order of the trial Court suspended by this Court. It is added that the petitioners pleaded in the written statement that the claim was totally false and it was a Benami transaction but subsequently they moved an application for amendment of their written statement and in paras. 3 and 4 thereof pleaded that the amount had already been paid.
5. It is argued that the plaintiffs moved an application in the trial Court for taking action for disobedience and also for a direction to the petitioners to surrender their passports. The defendants thereafter left the country.
6. I have given my anxious consideration to the arguments of the learned counsel for the parties, and gone through the record, provisions of Order XXXVIII, C.P.C. And precedent cases. The application for attachment before judgment is to be supported by an affidavit. The admitted position is that the plaintiffs did append affidavit with the application but the petitioners did not file affidavit along with their written reply. This way, the plea raised in the application remained un controverted and the contents of the affidavit of the plaintiffs are to be deemed as correct in view of the judgment in the case of Jamal Shah (supra).
7. Now coming to the liability. The petitioners have themselves admitted in paras. 3 and 4 of the application for amendment of their written statement that they have paid the amount due to the plaintiffs. It means that the business dealings which were completely denied have now been admitted.
8. The admitted position is that the petitioners are residing in U.K. And they own the two properties, the subject-matter of the application, in Pakistan. The plaintiffs alleged that the defendants are planning to alienate the property although the defendants denied in the reply but proved by their conduct as is clear from the copy of Mutation No,1361 dated 12-1-1995. There was much emphasis that the plaintiffs have not appended affidavit of the Revenue Patwari in support of their contention. The objection is absolutely misconceived because the Patwari was riot under any obligation to give any affidavit to the petitioners, Conversely, the petitioners have no control over him. It was argued by the learned counsel for the respondents that the petitioners after getting the order of the trial Court suspended in this revision petition proceeded to get the mutation of exchange entered and sanctioned. It is added that they also have disposed of the machinery installed in the other property during the pendency of this revision petition. The learned counsel for the petitioners even formally did not deny their facts. This is positive evidence to prove the contention of the plaintiffs that they learnt from the Revenue Patwari that the petitioners are out to alienate the property.
9. Before proceeding any further, it is worthwhile to refer to the cases cited by the learned counsel for the parties:--
1. Associated Drillers Ltd.: ' This case is clearly distinguishable and it was observed that merely the defendant is to leave Pakistan is not sufficient to invoke the provisions of Order XXXVIII, Rule 5, C.P.C. Because it would cause hardship to foreign company/organization operating in Pakistan. The application was dismissed after observing that it cannot be said that the plaintiff is likely to get a decree.
2. Travel Agents Association of Pakistan: ' After observing that the defendants are likely to leave Pakistan the application under Rule 5 was accepted.
3. Fahmida Iftikhar Ahmad: ' Court to satisfy by affidavit or otherwise that the defendant is going to dispose of the whole or any part of the property with intention to obstruct or delay execution of any decree. Since the ingredients were not pleaded and proved by the affidavit, therefore, the appeal was accepted and the application under Order XXXVIII, C.P.C. Dismissed.
4. Faqir Ali: ' The attachment under Rule 6 comes into play after issuance of notice under Rule 5(1). No attachment until after the defendant had either failed to furnish security or show cause.
' It was held that without stating the ground to believe and source of information the allegation was inadequate and defective. The Court to proceed slow in exercising this extraordinary jurisdiction.
5. Virasat Ullah: ' It was held that the Court has to be satisfied that transfer of property is going to be made after the institution of the suit with intention to defeat the execution of the decree. Vague allegations to this effect will not be sufficient. The revision was accepted and the application dismissed.
6. Print Pack: ' Plaintiff apprehended that due to serious financial difficulties defendant firm had stopped functioning and that defendant did not own other property sufficient to satisfy the decree--- defendants successfully proving otherwise. Application dismissed.
7. Mohiuddin Molla: ' The object of Order XXXVIII, Rule 5, C.P.C. Explained was to preserve the property for realization of the decrial amount. The Court possessed this power because the Civil Court has jurisdiction to determine and protect civil rights and for the protection of those rights the exercise of such power is essential.
8. Shirkat-i-Ahbab: ' The Court directed conditional attachment---respondent showing cause and stating "attachment before judgment" was unjustified because they had furnished security to the plaintiff which is more than double the amount claimed. The order of attachment was withdrawn by the trial Court but was restored by the High Court in appeal and the Supreme Court dismissed the appeal of the defendants.
10. The precedents are only relevant after laying factual basis. It is clear from the preceding paras.
Of .This judgment that factually the order of attachment before judgment was fully justified. The attachment in no way amounted to any hardship or paralyzed the business of the petitioners, The business relations have been conceded by the petitioners themselves in the application for amendment of their written statement. The petitioners have proceeded abroad and now if the properties are also alienated by them then it will defeat or at least delay the execution of decree likely to be passed in favour of the plaintiffs.
11. The plaintiffs should have moved an application along with the suit to treat their suit as a 'commercial case' as defined in Rule 10, Chapter 1-K of the High Court Rules and Orders, Volume I, then trial Court was to follow the procedure prescribed in Rules 11 and 12 thereof which read as under:-- "10. 'Commercial cases' should be disposed of as speedily as practicable. The term 'commercial case' is taken to include cases arising out of the ordinary transactions of merchants, bankers, and traders, amongst others those relating to the construction of mercantile documents, export or import of merchandise, affreightment, carriage of goods by land, insurance, banking and mercantile agency, and mercantile usage, and debts arising out of such transactions.
' A plaintiff or appellant may apply at the preliminary hearing at which his plaint or appeal is admitted or by subsequent application before the final hearing thereof, to have. His case classed as a `commercial case', and the Court before which such application is made shall, if satisfied that the case is a Commercial case, as defined in the above paragraph, cause the appeal or plaint to be marked with the word 'commercial'.
' All cases which have been marked as 'commercial cases' under the preceding paragraph shall be brought to a hearing as early as may be practicable. Such cases shall be given priority on the day of hearing over other cases, except part-heard cases, and shall, so far as possible be heard from day to day until they are finally decided.
11. (a) In order to expedite decision in commercial cases questions of law, involving such preliminary points as limitation, causes of action, etc., should be tried and disposed of as preliminary issues before issues dealing with the merits of the case are taken up.
(c) The following form in which specimen entries are given be adopted for elucidation of the pleas at the first hearing: {{TABLE}} IN THE COURT OF SUIT NO, OF 19 Plaintiff Defendant versus Upon hearing the parties on both sides and upon reading the affidavit counsel of_____________ filed herein, the following directions are given:-- Particulars -- Defendant in a week to give particulars of_____________ Admission -- That the plaintiff is_______________________________ Discovery -- Defendant in a week to produce_____________________ Interrogatories -- Plaintiff may interrogate as to ___________________ only: interrogatories to be initialled by me. Inspection of documents -- Plaintiff undertakes to produce at the hearing. Inspection of Property -- None. Commissions -- None.
Examination of witnesses -- To be examined on commission or otherwise, as the case may be. {{TABLE}}
12. The hearing of a suit shall not be postponed on the plea that the parties wish to compromise or for the purpose of deciding whether there has been any compromise between the parties except as provided in Order XXIII, Rule 3, as amended by the High Court."
These are useful provisions to eliminate delay in the adjudication of commercial suits and appeals covered by them, therefore, it is expected that the Members of the Bar would make maximum use of the same.
12. The upshot of the above discussion is that there is no merit in this revision petition. The same is dismissed with costs. However, the trial Court is directed to decide the suit expeditiously and in any case by the 1st of October, 1995.