' This revision petition calls in question the validity of the judgment and decree dated 16-1-1978 whereby the learned District Judge, Bahawalpur reversing the findings of the learned Trial Court, dismissed the suit of the plaintiff/petitioner.
2. The circumstances which brought the parties to this litigation, briefly, appear to be as follows: ' The petitioner/plaintiff owned a house at 3-1/2 Kanals Plot No,5-A, Shopping Centre, Model Town 'A', Bahawalpur, a central and precious area of the city. In order to renovate and repair the house he was obliged to get a loan of Rs,5,000 from the Government Gazetted Officers Cooperative Housing Society, Bahawalpur on 23-4-1968. His Account No,99 was opened alongwith a passbook.
The plaintiff continued to liquidate his liability by makihg periodical payments and on 20-3-1972 an amount of Rs,4,959.68 was found outstanding against him. The plaintiff claimed that two payments made by him of Rs,100 and Rs,25 had not been adjusted by the Society in his Account. On 18-4-1972 after sunset he came to know of the auction of his house. He also came to know that he had been made liable for the payment of loan taken by his son Muhammad Anwar from M/s. Abbasia Cooperative Bank. He, however, sent a telegram to respondents Nos.2 and 3 that he was sending the outstanding amounts relating to his loan and that of his son and the auction be not confirmed.
Over and above this the petitioner sent two bank drafts of Rs,5,000 and that of Rs,820 relating to the outstanding amount in respect of the petitioner and his son Muhammad Anwar respectively to the Assistant Registrar, Cooperative Societies, respondent No,2 alongwith an intimation to respondents Nos.3 and 4 and made it clear that although he was not responsible for the liquidation of the outstanding dues of his son, nevertheless in order to close the chapter he was making the payments on his behalf and on behalf of his son. The respondents received the bank drafts and so also the telegram, nevertheless they refused to accede to his genuine request and informed him that the auction carried out on 18-4-1972 had been confirmed on the following day i,e, 19-4-1972. It was further averred in the plaint that the entire proceedings were mala fide and were in flagrant violation of law and the provisions applicable to the recovery of the loans and auction of the property. In these circumstances, it was claimed that the entire proceedings including the auction and confirmation being mala fide and based on conspiracy to deprive him of his valuable property, were illegal, wanton, inoperative and without jurisdiction.
3. The respondents/defendants raised certain preliminary objections qua the authority and competence of the Court to adjudicate this matter in view of the provisions of Martial Law Order No,241 (hereinafter referred to as M.L.O. 241) and the Cooperative Societies Act, that the auction had taken place to recover the loans advanced to the petitioner and his son Muhammad Anwar who had been showing themselves as joint owners of the property and since Muhammad Anwar had not filed the suit questioning the legality of the auction, the present suit was not maintainable.
3-A. On facts the respondents admitted the contents of paras. 1 and 2 of the plaint and claimed that the proceedings of auction and recovery of the loans were valid in law and had been taken after all the precautions envisaged by law and it was well within the knowledge of the petitioner and his son that the Cooperatives were proceeding against them to recover the loans. The telegram and the drafts were indeed sent to the defendants but after the confirmation of the sale.
As such they had no effect on the validity of the sale.
4. In view of the conflicting averments of the parties the learned Trial Court formulated the following issues:--
(1) Whether the Civil Court has no jurisdiction to entertain this suit? OPD.
(2) Whether the defendants' proceedings in respect of auction and confirmation etc. Are illegal, void and inoperative for the reasons stated in para. No,7 of the plaint? OPP.
(3) Relief.
5. The learned Trial Court vide judgment dated 8-6-1974 came to the conclusion that the proceedings taken by the Department for the recovery of the loans and consequent issuance of proclamation and auction of the property were not in accordance with law and so also the Department had no right to auction the property of the petitioner for the recovery of the loan advanced to Muhammad Anwar, his son and decreed the suit. In appeal the learned District Judge, however, reversed the findings of the lower Court and dismissed the suit vide judgment and decree dated 16-1-1978.
6. The judgment and decree of the learned initial Appellate Court have been assailed by the learned counsel for the petitioner on various grounds. It is submitted that the provisions of M.L.O. 241 are supplementary to the provisions of Cooperative Societies Act, 1925 and Cooperative Societies and Cooperative Banks (Recovery of Loans) Ordinance, 1966, as such all the three enactments/laws are to be read together in order to determine/ascertain as to whether the recoveries of the outstanding loans have been correctly effected.
7. It was argued by the learned counsel for the respondents, at this stage, that there was a clear bar of jurisdiction contained in para. 7 of M.L.O. 241 and section 13 of the Cooperative Societies and Cooperative Banks (Recovery of Loans) Ordinance, 1966 (hereinafter referred to as Ordinance XIV of 1966) hence the learned Trial Court had assumed the jurisdiction illegally and this position was upheld by the learned First Appellate Court. This Court should, therefore, take off its hands from deciding this petition on account of the bar referred to above.
8. This objection, I am afraid, is patently, misconceived for the reasons that the Civil Courts are the Courts of general and ultimate jurisdiction. These are Courts of equity as well as of law and it is the Civil Courts which have the power to determine, notwithstanding the bar having been enacted in the very Statute as to whether the Executive Authorities had acted in accordance with the provisions of law or had travelled beyond the authority conferred on them by the Statute. If they act in accordance with the provisions of law, the Civil Courts would certainly have no jurisdiction, whereas if after scrutiny of the exercise it is found that they acted beyond their jurisdiction, the Civil Courts have power and authority to examine the acts of the Executive. In an exactly identical case reported as Sheikh Muhammad Ashraf v. Assistant Registrar, Cooperative Societies and others (1983 CLC 918) where a question of jurisdiction was raised, it was held by the High Court:- "---It is true that action taken under M.L.O. 241 is immune from attack before the Courts but such immunity is available only if the functionaries under the M.L.O. Do not exceed their jurisdiction and act within the ambit of their statutory powers. It is a case, in which the Assistant Registrar acted" beyond such powers. Upon the facts of this case, the jurisdiction of this Court cannot be shut out."
So, the point of jurisdiction depends upon the question that whether the jurisdiction vested in the Executive Authorities has been properly used. If that is so, the Civil Courts cannot step in, otherwise they have the authority to look into the matter to ascertain if it had been performed according to legal mandate.
9. Now it is obvious that no mode of sale and attachment has been provided in M.L.O. 241 or in Ordinance XIV of 1966. The attachment and sale shall, therefore, be carried out under the provisions of Ordinance XIV of 1966 read with section 59(2) of the Cooperative Societies Act, 1925. According to section 8(1) of Ordinance XIV the recovery of any amount shall be made, according to the laws and the rules for the time being enforced for the recovery as arrears of land revenue. This shows that the Department was bound to take C recourse to the relevant provisions of Land Revenue Act for the recovery of the outstanding loans and it is equally clear that the department was very well- cognizant of this fact because invariably the forms prescribed under the relevant provisions of Land Revenue Act were used for the issuance of proclamations etc.
10. Having determined that the recovery of the loans and consequent sale had to take place in accordance with the provisions of Land Revenue Act, it is now easy for us to determine as to whether the respondents had proceeded in the matter in accordance with the legal provisions.
According to section 95(1) of the Land Revenue Act, 1967 sale shall not take place until after the expiration of at least 30 days from the date of proclamation. In this case the proclamation (Exh. D- 15) was issued on 15-4-1972, whereas the sale had taken place on violation of the provisions of section 95(1) ibid. In Ch. Abdur Rashid and 18-4-1972 vide bid-sheet (Exh. D-16) only after three days. This is blatant another v. Registrar, Cooperative Societies, Punjab and 3 others (1983 CLC 744) where the auction took place within ten days of the issuance of proclamation, the same was declared invalid and the proceedings were quashed. There is yet another violation and that is of section 94(1) of the Land Revenue Act because the record does not show that the copy of the proclamation (Exh. D-15) was served upon the petitioner.
11. Learned counsel for the respondents, however, pointed out that the provisions of para. 1 of M.L.O.
241 made it abundantly clear that "the Order shall take effect notwithstanding anything to the contrary contained in any other law, or any decree, judgment or order of any Court or other authority, or any proceeding pending before any Court or other authority, or any agreement, contract or instrument", as such the provisions of Land Revenue Act would yield to the provisions of M.L.O. 241 and their compliance was not necessary.
12. It was, on the other hand, urged by the learned counsel for the petitioner that the outstanding loan, as per calculations of the Department itself, of the petitioner was admittedly Rs,4,959.68 and the M.L.O. 241, according to its para. 3 was applicable only if the outstanding amount of loan exceeded Rs,10,000. The provisions of M.L.O. 241 were, therefore, obviously not applicable. Even otherwise, as stated above, mode of recovery of loan is prescribed in the Land Revenue Act in terms of section 8(1) of Ordinance XIV of 1966 read with section 59(2) of the Cooperative Societies Act, as such the Department had rightly issued notices under the relevant provisions of Land Revenue Act. Therefore, the objection being misconceived is overruled.
13. According to Exh. D-17 auction was confirmed on the same day i,e, 18-4-1972 or a day after and the sale certificate was issued on the very next day. This was in sheer violation of section 104(1) of the Land Revenue Act which provides that the order confirming the sale shall be made after the expiration of 30 days. The intention behind this legislature appears to be to ensure the recovery of the amount due from the defaulter and not to grab his property through coercive measures. That is why the law has provided him chance after chance to make the payment of the loan due from him. This intention is clearly manifest from the provisions of sections 95, 96 and 104 of the Land Revenue Act. In this case what appears to have happened is that the design of the Cooperatives was not to reciwer their dues, rather to grab and swallow the valuable property of the petitioner consisting of 3-1/2 Kanals house in the centrally located area of city for a paltry sum. In order to invoke the provisions of M.L.O. 241 and to make the amount more than Rs,10,000 they haphazardly included the outstanding amount of loan allegedly due from Muhammad Anwar, the son of the petitioner. The petitioner has denied, while appearing as a witness in the Court, that although besides his son Muhammad Anwar his three other sons and daughters live with the family in the same house, nevertheless he has no partnership or share in his business of Dawakhana. How on earth was the Department competent to put the property of the father for the default of his son to auction. And if at all the Department had to auction the property of the father for the default of his son, they should have afforded hearing to the parties in terms of section 6 of Ordinance XIV of 1966 and ought to have given a finding after collecting evidence that the transaction was benami and the beneficiary was the father but there is nothing on the record which could establish that any such hearing was ever afforded to the father and any such determination was made in that behalf to fulfil the requirements of law. The decision of the learned District Judge on this point seems to be based on no evidence. Neither it was claimed by the respondents that the loans were Benami nor was there any evidence adduced to that effect. There was, therefore, no justification for the Department to hold the father responsible for the default of his son. The auction, as pointed out earlier in this case, took place only after three days of the proclamation. The Assistant Registrar had proceeded to auction the property in utter disregard of provisions of sections 94, 95 and 104 of the Land Revenue Act and the auction was, therefore, nullity in law. The intention of the petitioner was indeed to make payments of the loans and to discharge his liability. That is why he approached the Department not with a promise or undertaking to make payment of the outstanding amount against him and against his son in future but in fact Bank drafts were delivered to them which they returned to him after some days. The sale (Exh. D-17) shows that the same was made in respect of the land of Muhammad Anwar only and a sum of Rs,13,228 was treated as due from him. This, as referred to above, had no legal sanction behind because for the fault of his son father cannot suffer and secondly pass-book (Exh. P-18) of Muhammad Anwar showed that an amount of Rs,854 was only due from him. It is noteworthy here that this assertion of the petitioner in paras. 1, 2 and 5 of the plaint was admitted by the respondents. As such, there was no warrant in law for them to have claimed an exaggerated amount of Rs,13,228.28 against him.
Had the Assistant Registrar been vigilant enough to take into account the major fault of the Department in determining the liability of Muhammad Anwar, he would have certainly postponed the auction in terms of section 96 of the Land Revenue Act. Patent illegalities committed by the respondents have rendered the entire auction proceedings without lawful 'authority. As such the Civil Court had jurisdiction to look into the legality and propriety of their action. The learned District Judge had, in fact, proceeded on wrong premises and had not appreciated the correct position of law and fell in error in dismissing the suit.
14. It was also contended by the learned counsel for the respondents that the discrepancies pointed out by the learned counsel for the petitioner were minor ones and did not cause prejudice to the petitioner's case. All the notices had been issued to him before the auction took place and he was fully aware of the fact that his house was being auctioned. As such, since the Department had jurisdiction they could have proceeded in the matter rightly as well as wrongly. I am afraid this objection is totally ill-founded because it has been shown above that mandatory provisions of law have been violated in holding the auction as well as its confirmation, and the determination of the liability of the petitioner. As such the whole proceedings stood vitiated.
15. Lastly, it was submitted by the learned counsel for the respondents that the Cooperative Bank whose loans remained outstanding and were recovered by the Assistant Registrar was a necessary party to the suit, as such the suit merits dismissal. This objection, I am afraid, at this stage is not tenable in view of the provisions of Order I, Rule 13, C.P.C. Which clearly lays down that "All objections on the ground of non joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived". In this case the record obviously shows that this objection was never taken by the respondents either in the Trial Court or in the initial Appellate Court. This objection, therefore, shall be deemed to have been waived in terms of the provisions of C.P.C.
Referred to above.
16. While admitting the revision petition to regular hearing it was ordered by this Court on 21-1-1978 that the status quo shall continue subject to the condition that the petitioner shall, within one week, deposit the amount due from him in this Court and when the amount was deposited an objection was raised by the learned counsel for the respondents on 26-3-1983 that the amount deposited by the petitioner was short. On this objection it was ordered:-- "Learned counsel appearing on behalf of the petitioner has produced documents showing the amount deposited by the petitioner. The respondents should look into those documents and if they feel that further amount is required to be deposited by the petitioner, they should make a petition in that behalf mentioning the amount which should be deposited by the petitioner. If and when such a petition is made, it will be considered on merits and according to law. The stay order already issued is confirmed. C.M. No,49 of 1978 is disposed of."
The record does not show that there was any objection on the part of the respondents that the amount deposited by the petitioner was less than the amount due from him. As such it is obvious that the Department had virtually accepted that this was the amount due from them which stood deposited with them immediately after the confirmation of the auction. This amount appears to be still with the Trial Court and the respondents or the relevant quarters are at liberty to withdraw it any moment they like. With these observations the revision petition succeeds. The impugned judgment and decree dated 16-1-1978 are hereby set aside restoring the judgment and decree of the Trial Court. In the peculiar circumstances of the case, the parties shall bear their own costs.