The plaintiff has filed this suit for declaration and injunction m respect of property bearing No.TL- 2/50, Napier Road, Karachi (Custodian No.II-A-32) (hereinafter referred to as the "suit property"), against some four defendants. Defendants Nos.2 and 3 were declared ex parte by this Court vide order dated 17th January, 1982, while defendants Nos.1 and 4 have contested this suit. Initially, this suit was filed before the Court of IInd Senior Civil Judge, Karachi but the plaint was returned and on 18th December, 1980, it was presented before this Court.
2. The case of the plaintiff is that the suit property was formerly an evacuee property and was acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, that on 4th October, 1963, the suit property was put to auction and the plaintiff being the highest bidder purchased the suit property for Rs.1,59,000 on 9th October, 1963. The said auction was confirmed by the Deputy Settlement Commissioner. The plaintiff paid the total sale consideration and thus became lawful transferee of the suit property, which was in possession of some different occupants/tenants. On 30th October, 1963 a Provisional Transfer Order (hereinafter referred to as the "PTO") and on 15th January, 1964 a permanent transfer deed (hereinafter referred to as to the "PTD") bearing No.Kyc/000781 were issued in the name of plaintiff. The grievance of the plaintiff is that after lawfully transfer of the suit property in his name, the defendants Nos.2 and 3 manipulated with the Settlement Department and by fraud and misrepresentation got transferred in their names six tenements through PTD. These tenements were again subsequently transferred to the defendants Nos.2 and 3 without notice to the plaintiff. On 1st May, 1976, the defendants Nos.2 and 3 entered into an agreement of sale regarding the suit property with defendant No. l through his father. On 5th September, 1977, a Conveyance Deed was executed and registered in respect of suit property by the defendants Nos.2 and 3 in favour of defendant No.1 showing the sale consideration at Rs.80,000. In view of this background the plaintiff has prayed for the following relief:-- "(a) For declaration that property bearing No.TL-2-50, Custodian No.II-A--32, situated in Napier Road, measuring 597 square yards or thereabout, Karachi, belongs to the plaintiff absolutely and exclusively and the defendants Nos.1, 2 and 3 have no right, title or interest whatsoever in the said property;
(b) To declare that the PTDs issued to the defendants Nos. 2 and 3 on 4-8-1967 and 9-8-1967 by defendant No.4 (DSC) and/or any other order or orders passed in pursuance of implementation of the aforesaid order or orders passed without lawful authority and of no legal effect, void and bad in the eyes of law;
(c) To declare that agreement of sale dated 1-5-1976 and conveyance deed dated 5-9-1977 between the defendants Nos.2 and 3 and defendant No. l are also of the legal effect, void and bad in the eyes of law as the same are based on forged and frivolous documents; ,
(d) To declare that the defendant No. l has no right, title or interest as owner in respect of any portion and/or premises of property No.TL-2/50-11-A-32 permanently transferred in favour of the plaintiff on 15-1-1963;
(e) For permanent injunction restraining the defendant No.1, his agents, servant, or any body calling for and on behalf of the defendant No. l to sell the property and/or in any way transferring or negotiating the title with regard to the above property;
(f) To restrain the defendant No.1 to claim any right, title or interest as owner in respect of any portion of the property mentioned above permanently transferred to the plaintiff and, also to restrain the defendant No. l to eject the statutory tenants of the plaintiff in property No.TL-2/50-II- A-32 with immediate effect; (g)
(h)
3. The defendants Nos. l and 4 have filed their separate written statements through which they have raised preliminary objections on the maintainability of suit and have pleaded, inter alia, that the suit property transferred to the defendants are legal and valid, denying allegations of fraud, forgery and misrepresentation and praying for dismissal of suit with cost. On 8th April, 1984, by consent of all the parties, draft issues, proposed by the plaintiff, were adopted, which is Exh. 6 and is reproduced as follows:--
(1) Whether the suit is not maintainable in law for non-joinder of necessary parties?
(2) Whether the suit is barred by limitation?
(3) Whether the suit is barred under sections 22 and 25 of the Displaced Persons (C&R) Act, 1958?
(4) Whether the suit is undervalued?
(5) Whether the relief by way of declaration and injunction as claimed is barred under the provisions of Specific Relief Act?
(6) Whether the plaintiff has not come to this Court with clean hands?
(7) Whether the suit property was put to auction on 4-10-1963 and plaintiff purchased the same?
(8) Whether the notice of transfer order of the suit property dated 9-10-1983 issued by the Deputy Settlement Commissioner, in the name of plaintiff i.e. Annexure X-1 to the plaint is a forged document?
(9) Whether the Deputy Settlement Commissioner did not confirm the auction?
(10) Whether the PTO dated 30-10-1963 and PTD dated 15-1-1964 issued to the plaintiff are forged documents?
(11) Whether the defendants Nos.2 and 3 have manipulated in the Settlement Department for the transfer of the suit property in their favour?
(12) Whether the agreement for sale dated 1-5-1976 and the Conveyance Deed dated 5-9-1977 in respect of the suit property, between defendants Nos. 2 and 3 and defendant No. l are void and illegal?
(13) Whether the PTDs issued to the defendants Nos.2 and 3 in respect of suit property by the D.S.C.
Are void and illegal?
(14) Relief.
4. The plaintiff examined Record-Keeper of Settlement Department, namely, Israrul Haq, as P.W.1, Exh.5, Muhammad Usman, P.W. 2 as Exh.6, whose deposition was not completed and was adjourned to 8th December, 1983, for production of relevant documents. On 12th December, 1989, it was stated by Mr. B.M. Bangash, that he does not wish to further cross-examine P.W.2 as the PTD which was required to be produced in evidence does not form part of evidence. It was observed by this Court that the said PTD was not part of the evidence. P.W.2 was, therefore, not cross-examined by defendant No.4. One Inspector, Evacuee Property Settlement, Department namely, Mustafa A.I Khan, was examined D.W.1, who has produced several documents. D.W. 2 Muhammad Sadiq was examined as Exh.8 whereafter defendants' side was closed. I have heard Mr. Akhtar Mehmud for the plaintiff, Mr. B.M. Bangash, and Mr. Fariduddin, for defendants Nos. l and 4, respectively and have gone through the respective evidence of the parties. My findings are as follows:-- ISSUE NO. 1:
5. It is argued by Mr. B.M. Bangash, that in this suit the Evacuee Property Trust Board being necessary and proper party was not impleaded and that the defendant No.4, namely Deputy Settlement Commissioner, Karachi is no more in existence after promulgation of Act XIV of 1975. He has also referred to section 3 of the Evacuee Trust Properties (Management and Disposal) Act XIII of 1975. According to the learned counsel for the defendant No.1, the Evacuee Trust Property Board and the Provincial Government were necessary and proper party in this suit and their absence is fatal to the maintainability of this suit. The argument of Mr. B.M. Bangash, that the defendant No.4, namely, Deputy Settlement Commissioner, Karachi, ceased to exist after promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, has some force. In wake of this Act XIV of 1975, all the settlement laws and laws pertaining to evacuee property were repealed. Vide section 3 of Act XIV of 1975 all properties inclusive of urban, rural, agricultural land or attached to charitable, religious, educational institution, whether occupied or unoccupied which were available for disposal immediately before the repeal of Settlement and Evacuee Laws or which may become available for such disposal after repeal of these laws were transferred to the Provincial Government. According to section 4 all the residual works which were pending at the time of repeal and were outstanding were transferred to the Board of Revenue of the Province for disposal. In view of this legal position, it was further argued that Article 174 of the Constitution of Pakistan, 1973, the Provincial Government, for all legal intent and purpose, was a necessary party. This Article is parallel to the Article 213 of the Constitution of Pakistan, 1962.
6. In support of his contention, Mr. B.M. Bangash, has referred to the case of Secretary, B and R, Government of West Pakistan and 4 others v. Fazal A.I Khan PLD 1971 Karachi 625, where a Division Bench of this Court set aside the judgment and decree passed by the Trial Court in favour of respondent on the grounds, inter alia, that the suit was brought against official designations or titles and not against legal or natural persons, which was not possible under the law and that only legal natural persons can be sued as defendants in terms of Order 1, Rule 3, C.P.C. The rule laid down in the case of Sheriff of Bombay v. Hakamji Motaji & Co. AIR 1927 Bom. 521, Manahem S. Yeshoova v. Union of India and others AIR 1960 Bom. 196 and P.B. Shah & Co. And others v. Chief Executive Officer and others AIR 1962 Cal. 283, were referred with approval, Mr. B.M. Bangash has also referred to the case of Province of the Punjab and others v. Muhammad Hussain and others PLD 1993 SC 147, where to some extent similar objection was raised which was answered by the Hon'ble Supreme Court in the following words:--- "7. If the Trial Court, the Appellate Court and the revisional Court had kept in view the requirements of section 79 of the Civil Procedure Code read with Order XXVII, C.P.C. They would not have entertained the claim at all with the parties arrayed in the form in which they were arrayed. Section 79 of the Civil Procedure Code requires, and so does Article 174 of the Constitution, that all suits against the Central Government have to be filed in the name of Pakistan and against a Provincial Government in the name of the Province. Suing Pakistan, as was done in this case, through the Chief Settlement Commissioner and Members, Board of Revenue was in fact not only a mistake but a diversion of the proceedings materially affecting service and representation of the concerned defendants. The Chief Settlement Commissioner had ceased to be a legal entity or a functionary after repeal of the evacuee laws in 1974---much before the institution of the suit. Provincial Member, Board of Revenue could not represent Pakistan.
Similar is the position of Deputy Custodian. There was no functionary of the description of Deputy Custodian after the repeal of the evacuee laws.
As regards the Collector of the District, the procedure prescribed was quite a simple one--a straightforward one, for service on him. It is provided in Order XXVIII of the Civil Procedure Code that the Government and their functionaries can be served through the Government Pleader. No effort, at any stage, was made to affect service through the Government Pleader. The Clerk of the Court of Chief Settlement Commissioner who made the appearance and even the lawyer appointed by the Solicitor was supposed to represent the Chief Settlement Commissioner when in fact no such office did exist in the eye of law. The revisional Court was in serious legal error in thinking and assuming that Collector represented ex officio the Province of Punjab and by impleading him the Province stood automatically impleaded. Not only the Collector is not under the law representative of Province but in this particular case the Collector was sued as a functionary refusing to give effect to the Registered Deed and not as a representative of the Province. With the parties arrayed as they were, the suit could not be entertained unless necessary correction had been made."
7. The rule laid down by a Division Bench of this Court in the case of Secretary, B & R., Government of West Pakistan was followed by Peshawar High Court in the case of Ghulam Sarwar v. Ghulam Rabbani PLD 1992 Peshawar 130. Another case referred by Mr. B.M. Bangash, of Hamid Asghar Tair v.
Additional Commissioner (Revenue) 1983 CLC 1931, where a learned Single Judge of Lahore High Court dismissed the Constitutional petition being incompetent on the ground that the petitioner at a very belated stage requested to implead the necessary party i.e. Lahore Municipal Corporation. It was held that the Lahore Municipal Corporation, which was admittedly a necessary party was not impleaded for eleven years and in its absence petition becomes incompetent and no effective relief can be granted. On the other hand, Mr. Akhtar Mehmud, has referred to Order 1, Rule 9 of C.P.C.
And contended that this suit is not liable to be defeated by reason of non-joinder of the necessary parties and that the necessary and proper parties are the defendants arrayed in this suit Mr. Akhtar Mehmud, has also referred to the case of East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663. In this reported case the respondent, which was insurance company filed a suit but failed to implead assured as a party. It was held that no suit should fail by reason merely of misjoinder or non-joinder of parties and that the suit was not liable to be thrown out on the technicality that the plaintiff has not brought this suit in the name of assured as it would amount to a fetich of procedure. However, facts of the present case are quite distinguishable from the facts of the case of East and West Steamship Company.
8. In view of the fact that the Evacuee and Settlement Laws were repealed on the 1st day of July, 1974 on the promulgation of The Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, I am of the view that for all legal intent and purpose Provincial Government was the necessary and proper party and that the defendant No.4, namely, the Deputy Settlement Commissioner, Karachi, had ceased to exist after 1st July, 1974, therefore, this suit is incompetent. It may be observed that no attempt was made by the plaintiff for all these numbers of years (from 1981 to 1996) to join the said necessary party. No effective or purposeful relief can be granted in its absence.
ISSUE N0.2:
9. The defendants Nos. l and 4 have raised plea that the suit being barred by Article 120 of the Limitation Act, 1908 is liable to be dismissed. It is not denied by any of the party that since this suit is for declaration, therefore, this suit is governed by Article 120 of the Limitation Act, which provides maximum period of six years from the date when the right to sue accrued. Mr. Fariduddin and Mr. B.
M. Bangash, for defendants Nos.1 and 4 after referring to paragraph 9 of the plaint wherein the plaintiff has stated that the cause of action was accrued in the month of August, 1967 when the suit property was transferred to the defendants Nos.2 and 3, have argued that section 9 of the Limitation Act, which contemplates that once the time began to run, no subsequent disability or inability to sue stops it. Therefore, it was argued that this suit, which was filed on 18th December, 1980, is barred by law. In paragraph 9 of the plaint, it is further pleaded that additionally the cause of action was again accrued on 27th January, 1977 when the suit property was sold to the defendant No. l and again on 26-10-1977 when the defendant No. l filed ejectment cases against the statutory tenants and lastly on 5-9-1979 when the plaintiff came to know through its tenants about the forged and illegal PTD, being claimed by the defendants Nos. l to 3.
10. To advance their arguments, the defendants have referred to the case of Zafar Ahmed v. Mst.
Hajran Bibi PLD 1986 Lahore 399, Mst. Mumtaz Begum v. Allauddin and 2 others PLD 1993 Quetta 37 and the case of A.I Hussain Khan v. Mst. Bundoo Bibi AIR 1916 And. Pra. 328. On the other hand, Mr Akhtar Mehmud, has referred to the case of The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 and the case of Mr. Muhammad Jamil Asghar v.
The Improvement Trust, Rawalpindi PLD 1965 SC 698, to support his plea the time limit does not un against a void order and that in a suit where fraud is alleged a suit is maintained even in presence of any law prohibiting the jurisdiction of Civil Courts. In the instant case, no doubt the plaintiff has stated in his pleadings that he came to know for the first time on 5th September, 1979 about the transfer of suit property to the defendants Nos.2 and 3 but in his cross-examination he has admitted that his tenants stopped paying rent to him in the year 1976 and started depositing the same with the Evacuee Property Trust Board and since then his tenants have not paid him rent. The plaintiff has also admitted that he is aware that the defendant No.1 has lost rent cases, filed against six tenants. He has expressed his ignorance about the time when litigation commenced between defendant No.1 and his tenants but again admitted that he has issued notices to some of his tenants but did not file any rent case. All these facts the plaintiff has concealed in his pleadings as well as in his evidence. No documents were brought on record by either of the parties in support of the contention that whether the suit is barred or not. However, from the cross-examination of the plaintiff, it appears that he was fully aware of the eviction proceedings pending between the defendant No.1 as landlord against his tenants, whom the plaintiff also claims that they are his tenants, but no action was taken till filing of the present suit.
11. I have considered the question of time running against a void order in reference to an Evacuee Trust Property in the case of Farouq Inayat and another v. Haji Abdul Sattar and 9 others PLD 1996 Karachi 429 and after referring to the cases of Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962, Allah Dino v. Faqir Muhammad and another PLD 1969 SC 582, Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543, Deputy Commissioner, Pishin v. Abdul Salam and others PLD 1993 Quetta 121, Messrs Conforce Ltd. v. Syed A.I Shah etc. PLD 1977 SC 599 and the case of Sayed Sajid A.I v. Sayed Wajid A.I PLD 1975 BJ 29, I have answered the issue in the following manner:-- "
12. The term 'void order' is defined by the Hon'ble Supreme Court as a kind of an illegal order which does not exist in the eyes of law. See the case of S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367. In this reported case, a Full Bench of the Supreme Court of Pakistan observed that an order which is termed as a void order can create consequences, therefore, there cannot be a hard and fast rule to say that void order must always be struck down. On the question of limitation against a void order, it was held that writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of statutes of limitation. For further reference, see the case of Messrs Friend Engineering Corporation v.
Government of Punjab and 4 others 1991 SCMR 2324. In the present case, the plaintiff remained silent for nearly 17 years which had resulted in creation of a valid right in favour of defendants Nos.1 to 6. It was in the knowledge of the plaintiffs in the year 1979 that an adverse order had been passed by the Settlement Authority despite that they kept silent till the year 1995. This is a gross negligence on the part of the plaintiffs and could not be permitted to circumvent the period of limitation."
12. As a result of the above discussion, I am of the considered view that the plaintiff despite the fact that he was aware of the transfer of suit property in the name of the defendants remained silent and did not avail the legal remedy available to him under the Settlement Laws till June, 1975. How it is possible that the six tenants were paying double rents to the plaintiffs as well as to the defendants Nos.2 and 3 from 1964 till 1979 without protest. Such plea, which was not successfully proved at trial is raised by the plaintiff with the purpose to bring this suit within time. This suit must fail as it is hopelessly time-barred.
ISSUES NOS.3 TO 13:
13. Since I have come to the conclusion that the suit is liable to be dismissed on the grounds of non-joinder of the necessary party and being barred by time, there appears no necessity to discuss all these issues.
ISSUE N0.14:
14. Suit is dismissed with cost.