This order will dispose of the two applications, one under section 12(2), C.P.C. (C.M.A. No.1577 of 1994) and the other under section 151, C.P.C. (C.M.A. No. 1578 of 1994) both filed by the plaintiff.
2. The brief facts for disposal of these two applications are that on 26-4-1992 an order was passed by this Court on Civil Miscellaneous Application No.5112 of 1991 with the consent of the parties which provided, inter alia, that the sub-station of K.E.S.C. Shall be handed over for 30 days to the Official Assignee, after installation of correct meter panelling. After that the defendant was required to issue future bills. The defendant undertook not to issue any additional or supplementary bills. On 22-3-1994 this Court dismissed Civil Miscellaneous Application No.2280 of 1993 filed by the plaintiff under order XXXIX, Rules 1 and 2 read with section 151, C.P.C. And accordingly vacated the ad interim order granted on 21-3-1993. It was further ordered that the K.E.S.C. Would inform Official Assignee when the meter panel would be available for installation and Official Assignee was directed to comply this Court's order dated 26-4-1992 within 15 days. This order was passed by Mr. Nizam Ahmed, J. (as he then was).
3. It is contended by Mr. Muhammad Sharif, learned counsel for the plaintiff that the abovesaid application came up for hearing before the said learned Judge on 22-3-1994 at 1.30 p.m. And the arguments were concluded at about 2-00 p.m. The learned Judge pronounced oral order through which CivilMiscellaneous Application No.2880 of 1993 was dismissed and the defendant was directed to implement consent order of 26th April, 1992. It is strenuously contended by the learned counsel for the plaintiff that no order was dictated, written or signed by the said learned Judge, Mr. Nizam Ahmed, J. (as he then was), on 22-3-1994 and that on 26-3-1994 the learned Judge came to the Chamber and signed the said order. That the said learned Judge who was appointed as Additional Judge of this Court on 24-3-1992 for a period of two years ceased to be a Judge of this Court on 23-3-1994 and, thereafter was not entitled in law to perform any judicial function including writing or signing a judicial order, decree or judgment. Learned counsel has filed his personal affidavit in support of this application.
4. Mr. Muhammad Ikram Siddiqui has controverted the afore stated allegation and stated that the order and the date 22-3-1994 as appeared on the case file was dictated and signed by the said learned Judge on 22-3-1994. Mr. Sharif has also relied upon the counter-affidavit of the defendant wherein he has not specifically denied averments of the plaintiff's supporting affidavit. Mr. Sharif has relied upon the case of Abdul Ghani v. Haji Saley Muhammad (OLD 1964 Karachi 594), Qazi Mehar Din v. Mst. Murad Begum and others (PLD 1964 SC 446) and Muhammad Amin v.
Muhammad Ramzan (PLD 1988 Lahore 331). The facts of the cases of Abdul Ghani and Muhammad Amin are quite distinguishable and, therefore, the rule laid down in those cases is not attracted m the circumstances of the present case. However, the law laid down by the Hon'ble Supreme Court of Pakistan in the case of Qazi Mehar Din supports the proposition of law as argued by Mr. Sharif.
Somewhat similar plea was raised in the said case that a learned Single Judge who was appointed a Minister of the Bahawalpur State, singed and delivered a judgment after he had handed over the charge. Different provisions of law were considered by the Hon'ble Supreme Court including provisions of Order XX, Rule 2, C.P.C. It was held by the Hon'ble Supreme Court that a Judge who has become functus officio after being relieved of his office should not be allowed to have anything to do with the judicial work. Following is the relevant portion of the said reported case:-- "... The cases, therefore, in which judgments written by a person after transfer or on leave, were held to be valid, would not be sufficient authority for the view that a judgment written by a Judge who had ceased to hold his office would also be immune from exception. Such a view has potentialities of great mischief and if by reasonable construction of the statutory provision it could be avoided, the result would most probably be in conformity with the intention of the Legislature. I am, therefore, disposed to think that the narrower construction of Order XX, Rule 2, C.P.C. Should be adopted and it should be held that a Judge who has become functus officio, after being relieved of his office, should not be allowed to have anything to do with the judicial work of the Court over which he previously presided ...."
5. As far as announcement of verbal orders by the learned Single Judge is concerned, this act did not appear to be illegal. Rule 257(1) of the Sin4 Chief Court Rules (O.S.) provides that the judgment may be either oral or written. In sub-rule (3) it is further provided that where the Court delivers an oral judgment, it shall be taken down by the shorthand writer. A Judge is further authorised to make correction in the judgment and after such correction a fair copy duly signed by the Judge or Judges with date shall be treated as record of the judgment. Mr. Sharif has vehemently argued that the defendant has not specifically denied the fact that the oral order was later on dictated and signed by the learned Single Judge on the same day. But such admission of the defendant as claimed by the counsel of the plaintiff, even if accepted, for the sake of argument will not give rise to the presumption that the order was neither signed nor written on the date as appearing on the order. From the perusal of the order dated 22-3-1994, it appears that the same was signed by the learned Judge on the same date. From the diary sheet which is maintained by the Reader of the Court, it also appears that Civil Miscellaneous Application No.2880 of 1993 was disposed of on 22- 3-1994. There is a remark of the Reader with his initial dated 22-3-1994 to this effect.
6. There is another angle available to look at this case. Provisions of Article 129(e) of Qanun-e- Shahadat, 1984, attaches correctness and reliability to the judicial acts. I do not see any ground to depart from such presumption. The said provision of Qanun-e-Shahadat reads as under:-- "129. Court may presume existence of certain facts.--The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
The Court may presume---
(a) . ................................................
(b) . ................................................
(c) ................................................
(d) ................................................
(e) that judicial and official acts have been regularly performed;
(f) ................................................
7. The above provisions of the Qanun-e-Shahadat is identical to Article 114 of the Evidence Act, 1872, which was repealed by this new Order of 1984. The section 114 of Act, 1872 was considered in several cases. In the case of Syed Muhammad Hussain v. Raja Babu Kothiari (AIR 1954 Rajisthan 23), a Civil Judge passed an order for issuance of notice on review application filed under Order XLVII, Rule 4(2), C.P.C. Later on this application was dismissed by another Judge on the ground that the issuance of notice was wrong and invalid. It was held by a learned Single Judge of Jaipur High Court that ordinarily presumption under section-114 of the Evidence Act (now repealed) is that "an order of a Court of Law is made after due consideration and unless it can be shown to have been otherwise, the presumption would be in favour of the said order". In the case of District Magistrate, Lahore and another v. Syed Raza Kazim (PLD 1961 SC 178), the respondent who was an Advocate of the Supreme Court was refused arms licence by the District Magistrate. The District Magistrate had signed on a report of the clerk. It was argued before the Supreme Court that the refusal of the licence was arbitrary and unreasonable. It was held by the Hon'ble Supreme Court that the District Magistrate who was a responsible officer, must be taken to have applied his mind to the facts of the case and being satisfied as to the correctness and reliability of the previous acting therein appended his signature thereto in evidence of his agreement with the facts mentioned in the said noting. In the instant case, a learned Single Judge put the date of 22-3-1994 and there appears no reason or ground for this Court to disbelieve that the date as typed on the said order was anti- dated or that the signature of the learned Judge was not of the day as mentioned therein.
8. In the case of Muhammad Sadiq v. Federation of Pakistan (1991 MLD 1) it was held by a learned Single Judge of the Lahore High Court, Mr. Muneer A. Shaikh, J. That the presumption of the correctness is always attached to. The judicial proceedings and the orders recorded therein. The same principle was applied earlier by a learned Division Bench of Oudh High Court in the case of Munshi Raghubir Singh and others v. Rani Rajeshwari Devi (AIR 1933 Oudh 466). In this reported case, a learned Trial Judge ordered that a preliminary decree for sale be made". It was argued that the learned Judge does not agree with the said judgment inasmuch as the relief prayed in clause
(c) of the plaint was not mentioned. It was held by the Oudh High Court that under section 114 of the Evidence Act, 1872 a presumption is attached to the fact that when the Judge has signed the decree he was satisfied that the same had been prepared in accordance with the judgment. It was further held that under section 114 of the Evidence Act, a presumption arises as to the legality and correctness of Court proceedings. In the instant case, there is no material on record so as to believe that no written order was passed on 22-4-1994 by the retired Judge and that it was written and signed after his retirement.
9. Strong presumption is attached to the fact that the Judges as a matter of rule sign all the orders, judgments or decrees on the date as appeared in such orders, judgments or decrees. This presumption cannot be displaced easily or even by consent of the parties. Therefore, even if it is assumed that the defendant has not specifically denied allegations of the plaintiff, this will not displace the presumption that the learned Judge dictated and signed the order on 22-3-1994.
There is no merit in this application (C.M.A. No.1577/1994) which is dismissed. Even otherwise a Court is competent to set aside an order under section 12(2), C.P.C. On the plea of fraud, misrepresentation or for want of jurisdiction. In the instant case, no such ground was raised by the plaintiff. I am informed that an appeal is pending against the order dated 22-3-1994. It will suffice to observe that this order will not preclude the plaintiff to raise the above plea before the Appellate Court while arguing High Court Appeal No.37 of 1994.
10. Civil Miscellaneous Application No. 1557 of 1994: This is an application under section 151, C.P.C.
Through which the plaintiff is seeking suspension of the order dated 22-3-1994. After dismissal of Civil Miscellaneous Application No.1577 of 1994, this application has become infructuous which is also dismissed.