Civil Revisions Nos.2170, 2208 and 2236 of 1990 raised common question of law and facts, therefore, are being decided by this single judgment.
2. The relevant facts are that the petitioners are occupants of different portions of property commonly known as S-19-R-57 Mclagan Road, Lahore, which was originally owned by the Punjab National Bank Ltd., and was purchased by the respondent, National Bank of Pakistan through registered sale--deed-dated 29-6-1963. The petitioners filed separate suits challenging the vires of this sale-deed and claimed that they were entitled to transfer of the property in their names. The trial Court rejected the plaint in these suits and the first Appellate Court maintained the decision, therefore, the plaintiffs have filed the present revision petitions.
3. M/s. Sh. Sair A.I, Jahangir A. Jhojha and Colonel Ishfaque Ullah Khan, Advocates argued that the suits for declaration and permanent injunction were competent. The property vested in the custodian until a notification was issued by the Federal Government. It is added that the judgment in case of Cooperative Bank (PLD 1964 SC 616) clearly dealt with person and the property separately. The property, therefore, continued to vest in custodian and the sale--deed in favour of the respondent-Bank was void. It was argued that the custodian alone was competent to deal with the property once it was taken over. It was added that the Federal Government made a scheme for disposal of enemy property, which included property, which was notified on 8-3-1979, therefore, the sale-deed was void. The suits filed by the petitioners were competent and the Trial. Court wrongly and illegally rejected the plaint. It was added that all objections required framing of issues and leading of evidence by the parties. It was argued that for rejection of plaint the Court is to evaluate the facts as given in the plaint and not to refer to the written statement or any other document. In this behalf Sh. Sair A.I, Advocate has referred to the judgments reported as Begum Masooda Abdul Haq v. M/s. Shan-e-Mustafa Production and another (1985 CLC 671), Ch. Muhammad Bashir v.
Divisional Canal Officer and others (1994 CLC 2302), Moinuddin Peracha and 6 others v. Siraj-ud- Din Peracha and 23 others (1993 CLC 1606), The Chairman, Karachi Water and Sewerage Board and another v. Wazir Haider and 3 others Muhammad Sadiq and others v. Abdul Ghafoor and others (1988 CLC 308-472), Haji Mitha Khan v. Muhammad Younas and 2 others (1991 SCMR 2030), Mst.
Karim Bibi and others v. Zubair and others (1993 SCMR 2039), Jewal and 7 others v. Federation of Pakistan through Secretary Revenue, Islamabad and 2 others (1994 SCMR 826), Mir Qamar-uz- Zaman v. Agricultural Development Bank of Pakistan, Muzaffarabad and 3 others (1995 CLC 1982), Mercantile Fire and General Insurance Co. Of Pakistan Ltd. And another v. Controller of Insurance (1989 CLC 865), Mushtaq Ahmad Khan and another v. Mercantile Cooperative Finance Corporation Ltd. And another (PLD 1989 Lah. 320), Nazir A.I v. Nooraabad Cooperative Housing Society Ltd. And others (PLD 1987 Kar. 676), Abdur Rahman v. Karachi Development Authority (1988 CLC 1207), Babu Rahim Bux v. Wall Muhammad and another (1992 CLC 1025), M/s. Shah Noor Studios v. W.Z. Studios (1980 CLC 433), Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698), Yousaf A. Mitha and 3 others v. Aboo Baker and 2 others (PLD 1980 Karachi 492), Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others (PLD 1967 Dacca 190), S.M. Faisal v.
Additional Estate Officer (1989 CLC 2473), Mst. Kulsoom (Fatima) v. Wazir A.I and 13 others M/s. Nusrat Elahi and 41 others v. The Registrar, Lahore High Court, Lahore and 68 others (1991 MLD 2546), Asad A.I Khan v. Muhammad Iqbal and 12 others (1991 MLD 365), Mahboob Siddiqui v. Nafeesullah Rizvi and 2 others (1990 MLD 1137), Sajjad Hussain Khan and 126 others v. Muhammad Hanif Siddiqui and 3 others 1990 MLD 25, Dost Muhammad and others v. Ghulam Nabi and others (1990 MLD 164) and Fazal Kareem v. Muhammad Saeed and others (1994 CLC 1339). It was argued that the petitioners were entitled to transfer of the portions, of the property in their possession, therefore, they had a locus standi and cause of action to file the suit. The two Courts have not used their conscious and judicial mind while deciding suits and appeals. It was argued that the facts of one case should not form part of the other case. In this behalf reliance was placed on the case of Muhammad Shakil v. The State (PLD 1990 (sic)). It was added that the petitioners being in possession were entitled to protect their possession and seek transfer of the property. The allegations made by the petitioners in the plaint were denied by respondent-Bank, therefore, the controversy could not be resolved except by framing issues and recording evidence. As such resort to Order VII, Rule 11, C.P.C. Was illegal and unjustified.
4. On the other hand, M/s. Kh. Muhammad Farooq and Mian Hamid Farooq, Advocates argued that the properties left by the evacuee were generally treated as evacuee under Order VII of 1947 while the definition of evacuee property' was changed in the Ordinance XV of 1949 promulgated by the Central Government on 15-10-1949 with the result that the property of a joint stock company with head office in India was excluded from it. It was added that notification under section 55 of Act XII of 1957 was issued in the official Gazette by the Central Government on 30-8-1961 at least thereafter the property of the Punjab National Bank ceased to be an evacuee property. It was added that the authorities promptly had informed the occupants to treat the Punjab National Bank as owner of the premises. In this behalf reference was made to two orders of D.R.O. Dated 25-1-1949 and 6-7-1954 appended with the written statement as Annxures R.12 and R.13. It was added that the property of the Punjab National Bank, a limited company with head office at Jalandhar, could not be treated as evacuee. In this behalf the learned counsel relied on the judgments reported as The Property and Finance Ltd. v. The Custodian of Evacuee Property, South Zone (W.P.) and others (PLD 1957 Karachi 118) and Manzoor Ilhai Awan v. The Rehabilitation Authority and another (PLD 1957 Lahore 228). It was added that the order of Custodian dated 18-5-1959 appended as Annexure R.2 was self contradictory, therefore, the Bank was constrained to challenge the same through W.P.
No.628/59, which was disposed of by Division Bench of this Court vide order dated 30-11-1961 (Annexure R.4) observing that the same has become infructuous as the requisite relief has been allowed to the said Bank by the Central Government by issuing notification. It was argued that it was patently clear from the conduct of the Government, Custodian of Evacuee Property, Rehabilitation and Settlement Department, Custodian of Enemy Property that the suit property never formed part of compensation pool or was taken over as enemy property, therefore, the same was not available for transfer to the petitioners either under the Settlement Act (Compensation and Rehabilitation), 1958 or under the scheme framed in respect of enemy property. It was argued that if looked from this angle then neither the petitioners have any locus standi nor any cause of action is in their favour, therefore, they could not maintain the suits. It was added that the interested party was only the Federal Government, which accepted the sale in favour of the respondent-Bank throughout, therefore, the petitioners cannot be allowed to challenge the title of the respondent-Bank. It was argued that the case of the Punjab Cooperative Bank was clearly distinguishable and in any case in view of the judgment of this Court in W.P. No.628/59 not relevant as the matter stood concluded. As far the property of Punjab National Bank was concerned. It was argued that the Punjab National Bank was not treated as an evacuee and the custodian did not claim possession as is clear from Annexures R.12 and R.13 and thereafter the occupants started paying rent to the respondent-Bank. The property was also not assumed by the Custodian of Enemy Property at any stage rather there was no question because the property was not in the name of Punjab National Bank on 6-9-1965 when the India attacked Pakistan. It was argued that the petitioners even did not have any prospective right, therefore, the plaints were rightly rejected under Order VII, Rule 11, C.P.C. It was added that the provision is not exhaustive and the Trial Court could look into the provisions of law and authentic documents like sale--deed (Annexure R.1), orders of the Custodian (Annexures R.2 and R.3), order on the writ petition (Annexure R.4), order of the Deputy Administrator (RP) (Annexure R.7), order of the Administrator, Residuary Property (Annexure R.8) and orders of D.R.O. Dated 25-1-1949 and 6-7-1954 (Annexures R.12 and R.13). The learned counsel in support of the arguments referred to the judgments reported as Muhammad Akhtar etc. v. Abdul Hadi etc. (1981 SCMR 878), Nazeer Ahmad and others v. Ghulam Mehdi and others (1988 SCMR 824), Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others (PLD 1967 Dacca 190), Ghulam Rasool v. Mst. Hamida Begum and others (PLD 1992 Lahroe 363), Noor Begum v. Muhammad Boota and 3 others (PLD 1995 Lahore 344), Mian Muhammad Akram and others v. Muhammad Rafi (1989 CLC 15), Mst. Sakina and 3 others v. The Excise and Taxation Officer, 'A' Division, Karachi and 2 others (1989 CLC 964), Mst. Shahnaz Begum v. Mst. Zulaikha Bibi and 5 others (1989 CLC 1526), Messrs Paper Corner v. Board of Intermediate and Secondary Education (1991 CLC 740), Haji Muhammad and another v. Government of the Punjab through Collector, District Kasur and another (1994 CLC 1248), M/s. Standard Hotels (Private) Ltd. v. M/s. Rio Centre and others (1994 CLC 2413), Messrs Abdul Hamid v. Board of Intermediate and Secondary Education (1991 MLD 672), Muhammad Yasin Khan and 4 others v. Azad Government of Jammu and Kashmir through Chief Secretary and 3 others (1991 MLD 2295) and Jewan and others v. Federation of Pakistan through Secretary, Home Affairs and 2 others (1992 MLD 225).
5. On the other hand, Sh.Sair A.I, Advocate while summing up the arguments maintained that the property was not evacuee but since its possession was taken over by the Custodian Evacuee Property and that was to continue till the notification by the Federal Government, which has not been issued till today. It was added that there is a difference between 'Evacuee' and, 'Evacuee property'. The notification dated 30-8-1961 only declared the bank as non--evacuee and not the property owned by it, which continued to vest in the Custodian of Evacuee Property, therefore, the judgment of 'Punjab Cooperative Bank' was fully applicable. It was argued that the suit was competent as the petitioner was lessee of the Bank, person in possession and entitled to benefit of the scheme dated 8-3-1979 issued by the Federal Government for disposal of enemy property. The learned counsel also referred to paras. No.5 and 6 of the plaint to show that the case was not covered under Order VII, Rule 11, C.P.C. It was argued that the petitioner was not estopped as he was made to pay rent at least by misrepresentation. The learned counsel in support of these arguments referred to the judgments in the case of ' Mr. Muhammad Jamil Asghar' and 'Burmah Eastern Ltd.' (supra). The arguments were summed up with the submission that the defect in plaint cannot be made basis for its rejection and only open and shut cases are recovered by this provision.
6. Mr. Jahangir A. Jhojha, Advocate argued that the suit was competent under section 42 of the Specific Relief Act as the right was claimed by the plaintiff. It was added that the averments in the plaint were controverted by the Bank, therefore, could not be decided without framing issues and recording evidence and it was not a case of estoppel.
7. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provision of law and precedent cases. The admitted position is that the property belonged to the Punjab National Bank (hereinafter to be referred as Punjab Bank), which on the eve of the independence of the country, had its registered office at Jalandhar: Learned counsel for the parties referred to following statutes in their arguments:--
(i) West Punjab Protection of Evacuee Property Ordinance, 1947
(ii) Ordinance XV of 1949
(iii) Act of 1957 The property of joint stock company with its head office situated in a territory forming part of the India was excluded from the definition of evacuee property in the Ordinance XV of 1949. The National Bank of Pakistan (hereinafter to be referred as respondent-Bank) has relied on a notice/order (Annexure R.12) dated 25-1-1949 whereby the occupants of Punjab Bank wee informed to pay rent to the Bank, as it was not an evacuee property. This was obviously not issued under Ordinance XV of 1949, which was promulgated on 15-10-1949 and scrutiny revealed that the first piece of legislation on the subject was West Punjab Protection of Evacuee Property Ordinance 1947, which was promulgated on 1-12-1947. Thereafter, the West Punjab Protection of Evacuee Property Act VII of 1948 was enacted. It was thereafter that Ordinance XVIII of 1948 was promulgated on 18th October, 1948 by the Central Government, which was repealed by Act XV of 1949. It is interesting to note here that according to West Punjab Ordinance, 1947 and Act 1948 the property was to be taken over by the Custodian under general or special order published in the official Gazette. The word 'Evacuee Property' was defined as the owner of which cannot personally occupy or supervise or take delivery and or in the case of corporation the property which forms the assests of any business or undertaking which has ceased wholly or partially to operate owing to recent disturbance while the word ' evacuee' meant owner of any such property. This followed a general notification. While in the Act VII of 1948 the definition of 'evacuee' was made comprehensive and 'evacuee property' meant the property vesting in an evacuee. This Act was not repealed. The Central Government issued the Ordinance, 1948 without reference to either of the two provincial statutes referred to above. The petitioners have failed to place on record any notification issued under section 6 of the Ordinance XVIII of 1948 or Ordinance XV of 1949. On the other hand, the respondent-Bank has relied the following order of Rehabilitation Officer (Housing):-- -------------------.You are hereby informed that these flats do not fall under the term ' evacuee property' as along as the bank is functioning its routine in Pakistan. All allotments -issued by the House Magistrate or Rehabilitation Office in your name are hereby cancelled.
You should, therefore, settle the question of rent and accommodation with the Manager, Punjab National Bank Ltd., Lahore within a week from the date of service of this notice, failing which you stand liable for prosecution. "
It is clear from the above that the property was also not treated as evacuee under either Ordinance, 1947 or Punjab Act VII of 1948. This was followed by order of Rehabilitation Officer dated 6-7-1954. It is clear that the property never vested in the custodian and as such did not require any notification of divesting.
This brings the discussion to post Act of 1957 period when Shabbir Sports, Sialkot filed a petition under section 40(4) of Ordinance XX of 1956 against the order dated 28-12-1956 of Sh. Abdul Majeed Asghar, Deputy Custodian Evacuee Property wherein he held that the Punjab National Bank Ltd. Was not an evacuee concern. The appeal was partially allowed vide order dated 18-8-1959. The result was that the property of the Punjab National Bank was declared non-evacuee property but at the same time it was held that it would continue to vest in custodian until such time a notification was issued by the Central Government to this effect. This order was challenged by the Punjab National Bank through Constitutional petition and during its pendency Notification dated 30-8-1961 was issued. The writ petition came up for limine hearing on 30-11-1961 and the learned Division Bench observed that since the petitioner has been exempted from the operation of all the provisions of Act of 1957, therefore, the writ petition has become infructuous and the same was disposed of accordingly. It is relevant to mention here that the custodian was represented by late Malik Muhammad Akram, Advocate as his Lordship then was while the Chief Settlement Commissioner was represented by late Maj. Ishaque Muhammad Khan, Settlement Commissioner (Legal) and none of the parties challenged this order in any forum. The same attained finality. For this reason alone the judgment in the case of Cooperative Bank is not relevant. This was judgment in PERSONAM and not in REM. The notification was not produced, therefore, not considered as is clear from page 622 of this judgment. The factual controversy was not the same as noted above.
8. Now coming to the legal controversy whether it was a fit case for rejection of the plaint under Order VII, Rule 11, C.P.C. Sh. Salr A.I, learned counsel for the petitioner heavily relied on the judgment in the case of 'Jewal and 7 others' (supra), which is clearly distinguishable as their Lordships held that, however, if there is some material before the Court apart from the plaint, the same could be looked into and taken into consideration. While in the case of Mst. Karim Bibi and others (supra) issues have been framed and the part of the evidence had already been recorded. From perusal of the judgments relied by both sides it is clear that mainly the following are the rules laid down by the superior Courts for the rejection of plaint:-
(i) That the recording of evidence has yet not been commenced;
(ii) that the averments in the plaint and other authentic documents produced by the parties could be taken into consideration;
(iii) that the facts as to cause of action as stated by the plaintiff are to be assumed as proved and then it is to be decided whether the same legally constituted cause of action or not; and
(iv) that the provisions of Order VII, Rule 11, C.P.C. Are not exhaustive. The purpose is that still born suit should be properly buried at its inception so no time of the litigants and Court is consumed in fruitless litigation.
We have to see whether there were any alive issue in the suit which furnished cause of action to the petitioners. The admitted position at least to the extent of Sh. Sabir A.I, Advocate is that the Punjab Bank was not an evacuee. It is clear from the record that the property was not treated as evacuee at any point of time. On the other hand the authorities as back as 25-1-1949 vide Annexure R.12 notified that the property was not an evacuee property and the occupants shall deal with the Punjab Bank, its owner. The petitioners are claiming right through either Custodian of Evacuee Property or Custodian of Enemy Property or Settlement Department, who did not claim the property or any interest, therefore, the petitioners could not maintain an action. They have neither locus standi nor cause of action in their favour. This legal position would have remained same even if the parties had been allowed to lead evidence. Sh. Sabir A.I, Advocate has categorically taken up the position that in case it is held that the case of his client is not covered by the judgment of the Hon'ble Supreme Court in the case of Cooperative Bank then the judgments of the two Courts are fully justified. I have already held that the judgment in that case is clearly distinguishable as observed in the earlier part of this judgment.
9. These were the suits for declaration and permanent injunction. The petitioner, Muhammad Sarwar in C.R. No.2208/90 has submitted a form for the transfer of the property. The claim of the petitioner and 15 others was considered by the Deputy Administrator (RP), Faridkot House, Lahore and their forms rejected vide order dated 17-12-1976 after holding that it was not established that the property was ever brought on the list of evacuee property. It was further observed that the applicants have not brought on record conclusive evidence to prove that the property in their possession was ever taken over, managed and controlled by the Custodian. This order was challenged by the said petitioners and others through a revision petition before Mr. Mukarrab Khan, Administrator, Residuary Property, who dismissed the same vide order dated 15-3-1979-after holding that the property belonged to the respondent-Bank and was not covered by scheme for disposal of residuary property. The matter was not pursued any further by any party, therefore, this order attained finality.
10. M/s. HAMCO, client of Sh. Sair A.I, Advocate in C.R. No.2236/90 were claiming transfer under the scheme framed for the enemy property. The property has seized to be that of Punjab Bank and vested in the respondent-Bank much before 6-9-1965 when India attacked Pakistan, therefore, the same was neither part of the enemy property nor treated as such by the Custodian of Enemy Property at any point of time, therefore, the claim of the petitioner is just in the vacuum and if looked from this angle then it has no cause of action.
11. Now coming to the locus standi. The petitioners are claiming the property on account of possession whereas the property as noted above never vested in the custodian or formed part of the compensation pool, therefore., question of its transfer to the petitioners or anybody else did not arise. If looked from this angle the petitioners have no locus standi to file the civil suits. The principles involved in rejection of plaint are two-fold: In the first place; it contemplates that a still- born suit should be properly buried at its inception, so that no further time is consumed in a fruitless litigation. Secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may file a properly constituted cause.
It is clear from the legal controversy involved and noted above that the petitioners have not raised any issue worth the name warranting trial of the suits. The plaints are stereo-type and copies of each other. The cases were fully covered by the principles of rejection of the plaint under Order VII, Rule 11, C.P.C. As noted.
12. The upshot of the above discussion is that these revision petitions are without any merit, therefore, the same are dismissed with costs.