JUDGMENT SAYED NAJAM-UL-HASSAN KAZMI, J.- This judgment proposes to decide RFA No. 142 of 1996 which extends challenge to judgment and decree, dated 20.12.1995, passed by the learned Civil Judge, Lahore in a suit for specific performance of agreement of sale.
2. Babar and Co., respondent No. 1 herein, filed a suit for possession through specific performance, claiming that the appellant (Pioneer Housing Society (Pvt.) Ltd., etc., had agreed to sell Plot No. 28- A, measuring 2 kanals West Wood Housing Colony Raiwind Road, Lahore, in favour of respondent No. 1, vide agreement of sale dated 9.7.1988. The sale consideration was claimed as Rs. 7 Lacs, out of which, Rs. One lac was stated to have been paid through pay order, dated 9.7.1988, drawn on National Bank of Pakistan Regal Chowk Branch Lahore, as earnest money. It was maintained that in terms of sale agreement the sale was to be concluded till 8.9.1998. It was asserted that despite readiness and willingness of respondent to had the deal concluded, the final transfer could not take place because of the fault on part of appellant' for which legal notice was also served. In this backdrop, respondent claimed enforcement of an agreement through the decree of the Court.
3. Appellant resisted the suit, by claiming that respondent had no cause of action, the suit was not maintainable in its existing form, the respondent had no locus standi to file the suit and that the suit was vexatious and false. In para 2 of the written statement it was maintained that the appellant had entered into an agreement of sale with Babar and Co. Through one Fareed Ali, who had no connection with the respondent and that the agreement was cancelled as Babar and Co.
Had allegedly failed to perform its part under the agreement. Respondents Nos. 2 and 3 were impleaded as parties, as it was claimed that the plot was allegedly transferred to respondent No. 2 by the appellant, during the pendency of the suit, who had allegedly assigned his interest to respondent No. 3. Though written statement was filed by these two respondents yet they later absented from the proceedings and neither appeared in evidence nor contested the suit any further.
4. Conflicting pleadings were given the form of following issues:-
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the defendant has entered into an agreement with plaintiffs, on 9.7.1988, to sell the plot No. 28-A measuring 2 kanals in West Wood Housing Colony, Raiwind Road, Lahore, in lieu of Rs.7,00,000.00 out of which, he had received Rs. 100,000.00 as earnest money? OPP
(3) Whether this suit has been filed without any locus standi and cause of action? OPD
(4) Whether the plaintiffs are entitled to the decree as prayed for? OPP
(5) Whether the suit is vexatious, false, fake and is filed to harass the defendant with mala fide intention? If so, its effect? OPD (5-A) Whether the suit is time-barred as against the defendant No. 3? OPD (5-B) Whether the suit is not competent as against the defendant No. 3? OPD (5-C) Whether the agreement executed between the defendant No. 1 and M/s. Babar and Company, through Mr. Farid Ali stands cancelled and has become ineffective? OPD-1.
(6) Relief.
5. Respondent No. 1 produced in evidence, Mr. R.A. Zafar, PW-1, Fareed Ali PW-2, Shahzad Muhammad Khan PW-3 while appellant produced Haji Taj Muhammad DW-1 and Sh. Muhammad Saeed DW-2. Additionally documentary evidence in the form of agreement of sale, executed between the parties and legal notice were produced as Exh. P-1 to Exh. P-28. Similarly letters, notice, telegram and Mukhtar Nama were produced as Exh. D.I to Exh. D-4 and Mark 'A' to Mark 'E'.
6. The learned Civil Judge, on the review of the evidence, decreed the suit vide judgment, dated 20.12.1995, which is subject-matter of consideration in this appeal.
7. Learned counsel for the appellant argued that the appellant did not deny the existence of sale agreement but pleaded that the agreement was made with Babar and Co. Through Fareed Ali who had no link with respondent No. 1. It was added that time was essence of the contract and since respondent N&. 1 did not have adequate funds, the agreement was cancelled by the appellant.
Learned counsel submitted that respondent No. 1 had asked for alternative relief of damages and, therefore, specific performance of the agreement could not be allowed and question of granting compensation could only be attended to. It was lastly submitted that the jurisdiction to grant specific performance being discretionary in nature, the Court could not enforce the agreement because of the hardship which the appellant would suffer in the event of enforcement of agreement.
8. Learned counsel for respondent No. 1 argued that Fareed Ali was only a representative of the Firm who appeared in the evidence and supported respondent No. 1 and after his statement, the objection raised by the appellant did not carry any significance. It was contended that the correspondence exchanged between the parties would reveal that neither time was considered as essence of the contract nor the agreement was ever rescinded by complaining any default on the part of the defendants. Learned counsel submitted that respondent No. 1 was in fact a Firm which was later dissolved and u/Ss. 47 and 48 of the Partnership Act. 1932 its partner could continue the proceedings to enforce the rights of the Firm under the agreement.
9. We have given our serious thoughts to the submissions made and have minutely scand the evidence on record.
10. The perusal of written statement and also the submissions made before us. Leaves no room of doubt that the execution of an agreement of sale with Babar and Co. (respondent No. 1) is not disputed though attempt has been made to escape liability under the agreement by raising hyper-technical objection. The only plea of the appellant in this regard is that Fareed A1 I signed the agreement on behalf of Babar and Co. Who should have filed a suit. The perusal of agreement makes it obvious that the transaction was not made with Fareed Ali but with Babar and Co. Which filed the suit. Being an intending purchaser, the vendee could be represented by any representative which could not mean that the agreement was for the benefit of the agent/representative and not for the Firm. The agreement vividly demonstrate that it was between Pioneer Housing Society and Babar and Co. It is also not denied that Babar and Co. Was a Firm at the time of execution of the agreement which fact is otherwise proved by the partnership deed, dated 29.12.1986. Partners of this Firm were Shakir Ali. Shahid Ali. Khalid Ali and Fareed Ali. The suit was instituted by Babar and Co. Through Shakir Ali, a partner of the Firm. Any misdescription in the particulars of the parties, would not create any disabling consequences for the respondent/decree-holder, particularly when it is proved on the record that the agreement was executed in favour of Babar and Co. Certificate of dissolution of the partnership is also available on the file. Under Sections 47 and 48 of the Partnership Act. The partnership does not come to an end on dissolution of Firm but it continues for the purpose of winding up of business and partner can sue or may be sued in the name of the same Firm for the adjudication of unfinished affairs.
Reference can be made to "Ghulam Hussain, etc. v. Haji Ibrahim" (NLR 1985 (C) 678), where it was observed that a suit by a proprietor of dissolved Firm for the recovery of costs of cloth supplied by the Firm to the defendants would be competent. Similar view was taken in "M/s. Memon Trading Co. v. M/Ss. Hajee Gajjar. Hajee Habib Janoo" (PLD 1966 Dacca 612). This being so, the suit filed by Babar and Co., through Shakir Ali proprietor of the firm, for the enforcement of the agreement in favour of the firm was competently instituted and no exception can be taken to the same.
11. Even otherwise, the objection was only to the extent that Fareed Ali should have come forward which objection, as observed above, is without substance, as the agreement was in favour of the Firm while Farid Ali appearing as PW-3 had confirmed this position.
3. Learned counsel for the petitioner argued that the petitioner was appointed by the Recruitment Committee constituted vide common circular dated 8.2.1995 appended as Annexure-F with the writ petition. It was explained that on 24.4.1990 Export Tax Zila Council, 1990 and the rales were enforced.
The directions were issued on 2.5.1990 to implement the above law and rales. It was on 11.8.1990 that schedule containing guideline was issued. It was decided on 18.4.1992 to appoint the staff for the recovery of the Zili exit tax and accordingly Punjab Local Government (Establishment) Rules were issued and the schedule was amended in 1995. Thereafter the applications were invited through advertisement in newspaper dated 23.3.1995. The appointment of the petitioner was made by the Committee constituted under Government Notification. The grievance is that Director General (Inspection) Local Government and Rural Development, Punjab pointed out that the appointments of the petitioner and others made in 1995 were illegal, in violation of the rales laid down by the Hon'ble Supreme Court of Pakistan. Thereafter respondent No. 1 proceeded to terminate the services of petitioner and others. It was argued that he appointment was made strictly in accordance with law, rales and decision of the Hon'able Supreme Court of Pakistan. Moreover the Director General no authority to object to the appointments. It was argued that the impugned order has been passed without hearing the petitioner or giving him an opportunity to explain his position, therefore, the order is not only against law and rales but also against the principles of natural justice.
4. On the other hand, learned Advocate General, Punjab argued that according to rales all appointments are to be made by the 'Selection Committee1 as constituted under the Punjab Local Government Ordinance. It was added that the 'Recruitment Committee' which usurped the jurisdiction of 'Selection Committee' which usurped the jurisdiction of 'Selection Committee1 was notified by the Government for the appointments in Government Departments, Autonomous Bodies and Local Councils. It was argued that the petitioner was member of the Local Council, therefore, for the purpose of Punjab Service Tribunal was civil servant. In this behalf reference is made to Section 44 of the Local Government Ordinance and reliance was placed on Mushtaq Ahmad v.
Government of Pakistan (1988 PLC (CS) 488).
5. It was argued that the appointment was irregular, therefore, it did not create a vested right and the respondent has inherent jurisdiction to remove the petitioner from the service on account of irregularity. It was maintained that the wrong action could be corrected any moment. In this behalf reliance was placed on The Engineer-in-Chief Branch v. Jalaluddin (PLD 1992 SC 207) and Jameel Ahmed v. Deputy Commissioner, Bahawalpur (1998 PLC (CS) 448). It was added that this will not the case of promissory estoppel and the limitation is not involved. In this behalf reliance was placed on Pakistan v. Salahuddin (PLD 1991 SC 546).
6. It was argued that respondent No. 1 had jurisdiction under Section 20 of the General Clauses Act to resined the order of appointment of the petitioner. It was argued that writ is not to be issued because the Government is curing an illegality. It was added that the service during probation period are liable to be dispensed with any moment without a stigma and writ is not competent. It was argued that in ation order is not passed then the period of probation would automatically be extended by one year.
7. It was next argued that the order of termination is proper and legal because appointment letters were issued even without checking the eligibility of the petitioner and others. The manner in which the appointments were made go a long way to show the mala fides. It was argued that in such cases notice or hearing is not necessary. In this behalf reliance was placed on the case of Mushtaq Ahmad (supra). It was explained with reference to the arguments on behalf of the petitioner that only the staff for the recovery of the exit tax was recruited, that it was falsified by the facts of record that all sorts of appointments were made wrecklessly and without justification. The result was that financially respondent No. 1 was reduced to the State of bankruptcy.
8. Mr. Naseer Ahmad Bhutta, Advocate argued with reference to Notification dated 13.11.1976 the Civil Service Rules of the Government of the Punjab were made applicable to the employees of the local councils arid Zila Councils in the Punjab with immediate effect. It was argued that under Rule 12 of the Municipal Councils Rules, the term of probation would be deemed to be extended. In this behalf reliance was placed on (PLD 1973 SC 393). It was argued that neither there was any mala fide nor stigma was attached to the termination of service, therefore, the writ was not competent, it was the duty of the Director General (Inspection) to note the irregularities and sent the same for information and action to the Government and copy thereof to the Local Council who shall report the action taken to the Government which may issue directions as deemed necessary.. In this behalf reference is made to Section 155 of the Punjab Local Govt. Ordinance, 1979 (hereinafter to be referred as ' Ordinance of 1979). It was added that Government is also empowered under Section 157 of the Ordinance of 1979 to issue direction to take action within the specified period and order inquiry suo-motu or on an application by any person under Section 158 of the Ordinance, 1979.
9. Learned counsel for the petitioner while summing up the arguments submitted that the appointment was made under Section 42 of the Ordinance, 1979 and not under Section 44 of the Ordinance, 1979 which was not applicable, It was added that the petitioner was servant of Zila Council in view of provisions of Section 42 of the Ordinance, 1979. It was argued that the appointment rules referred refered to by Mr Naseer Ahmad Bhutta. Advocate were not relevant because these dealt with the Municipal Committees and not Zila Councils. It was argued that he' '
Recruitment Committee' as notified by Government and ' Selection Committee' were manned by the same officials, therefore, it made no different as to which of two Committees made the appointment of the petitioner.
10. Learned Advocate General while summing up the arguments submitted that the collection of exit tax was made through Contractor, therefore, there was no justification to make these large number of appointments. He explained that it was besides the point that it was only used as a pretext as was clear from the fact that the appointments of large number of employees were made who had nothing to do with the collection of the exit tax by the Zila Councils. It included appointments of dispensers etc.
11. I have given my anxious consideration to the arguments advanced on behalf of the parties, gone through the record, relevant provisions of law and precedents. The Government has constituted 'Selection Committees' under the Punjab Local Government Ordinance. The Committee consists of Chairman of the Local Council, Chief Officer/Secretary of the Local Council and Principal Officer of the concerned department, if any, for technical advice and assessment of the fitness of the candidate with reference to joh requirements. All the appointments are to be made by this Selection Committee. The Government also constituted 'Recruitment Committees' for the appointments in the Government Departments and autonomous bodies for Gujranwala it consisted of Sh. Javed Sarwar, Deputy Commissioner, Gujranwal (Chairman), Mr. Salam Sher Afgan Khan, A.D.C.(G), Gujranwala (Secretary/Member), Ch. Zubair Hussain and Chief Officer Zila Council, Gujranwala. This Committee had no jurisdiction or authority to make appointments in the Local Council. It seems that Deputy Commissioner being all powerful usurped the jurisdiction of selection process. Learned counsel for the petitioner argued that after the dissolution of the Local Councils both the Committees were manned by the same members. This argument is utterly misconceived because as per Punjab Local Councils Business Rules, 1980 framed under Sections 36, 37 read with Section 167 of Ordinance 1979 no appointment and promotion shall be made except on the recommendation of the Selection Committee. The Constitution of the Committees has been given above. The argument is factually incorrect. The justification rendered for the large scale appointments is that in order to coup with the recovery of exit tax these appointments were made.
This is again factually incorrect. The perusal of the list even filed by the learned counsel for the petitioner shows that it included S Naib Qasids, 5 Gunmen, 3 Vaccinators and 3 Dispensers. The dates of appointments make the whole affair doubtful. Director General (Inspection) pointed out these irregularities and sent the observations for information and necessary action. The objection that he Director General (Inspection) has no authority is misconceived and Mr. Naseer Ahmad Bhutta Advocate Appearing on behalf of the respondents has rightly referred to Section 155 and 157 of the Ordinance of 1979. Besides this the Government is competent to order inquiry in the affairs of a Local Council and issue directions under Section 158 of the Ordinance of 1979.
12. Mr. Ashtar Ausaf Ali, learned Advocate General was right to argue that the appointments being irregular could not create a vested right. The action could be corrected any moment. In this behalf he has rightly referred to cases of Jalal-ud-Din, Jamil Ahmad and Salah-ud-Din (Supra).
In this behalf I may refer to cases of Ghulam Murtaza v. Headmaster Ch. Inayat Ullah (1988 PLC (C,S) 274) and Aziz Ahmad v. Chairman Board of Intermediate and Secondary Eduction, Gujranwala (1997 PLC (C.S) 356). The decision in case of Aziz Ahmad^Supra) was confirmed by the learned Division Bench vide judgment dated 3.6.1996 passed in I.C.A. No. 182/96 and incidentally the judgment was written by me. The relevant portion reads as under: - "2....... The learned Single Judge in Chamber has clearly held that the Recruitment Committee was to be constituted as per Notification dated 17.3.1995 while the Committee which proceeded to interview the candidates was constituted as per letter dated 4.4.1994, which had been superseded and was not in lime with the statute. There is nothing wrong with this reasoning."
13. The matter can be looked from another angle that petitioner having been appointed illegally cannot question the correction process because it would amount to perpetuate the irregular and illegal action of the Selection Committee. In this behalf learned A.G. Has rightly referred to Province of the Punjab v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) and Jameel Ahmed v. Deputy Commissioner, Bhawalpur, (1998 PLC (CS) 448). Learned A.G. Has further argued that the principle of locus Poenitentiae in the circumstances would not be applicable. In this behalf he has rightly referred to Darayus Pestonji v. Nam Sigh (1998 CLC 921). Learned A.G. Rightly argued that the doctrine of promissory estoppel is not applicable in the present case. In this behalf he has referred to Pakistan v. Salahuddin (PLD 1991 SC 546). Even otherwise respondent No. 1 had jurisdiction under Section 20 of the General Clauses Act to rescind the order of appointment of the petitioner. The appointment was made on 7.6.1995 and even thereafter while the services were terminated on 18.6.1997. There is nothing on record to show that the petitioner was confirmed, therefore, probation period would be deemed to have been extended by one year. This way the termination was during the probation period. The same being without stigma, therefore, cannot be challenged through Constitutional petition. In this behalf reliance was placed on Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan (PLD 1974 Supreme Court 393) and it is suffice to refer to here the judgment in the case of Syed Tatheer Hussain v. Governor of the Punjab (PLJ 1988 Tr.C. (Services)
33).
14. It is interesting to note that the appointments were made in such a irregular and wreckless manner that even the Appointing Authority did not determine the eligibility of the candidate. The moment the order of appointment is declared illegal, the other acts are automatically rendered illegal and ineffective and super structure trembles down the moment foundation dis-appeared. In this behalf reference can be made to Messrs Munkoc Corporation v. Province of Punjab (1990 CLC 1791).
15. Now coming to the question whether in these circumstances it is proper to issue writ. The order of appointment is illegal assuming that the petitioner is not to be blamed for the illegality but the question remained whether such orders should be protected and illegality perpetuated. The rule laid down by the Hon'ble Supreme Court of Pakistan is that illegal and ill-gotton benefits are not to be protected and illegalities should not be perpetuated by Courts whether in suit or in Constitutional jurisdiction. In this behalf reference can be made to Nawab Syed Raunaq Ali etc. v.
Chief Settlement Commissioner, etc. (PLD 1973 SC 236), Wali Muhammad v. Sakhi Muhammad (PLD 1974 SC 106), Syed Nazim Ali etc. v. Syed Mustafa Ali etc. (1981 SCMR 231), M/s. Norwich Union Fire Insurance Society Ltd. v. Muhammad Javed Iqbal (1986 SCMR 1071), Federation of Pakistan v. Haji Muhammad Saifullah Khan (PLD 1989 SC 166), Syed Ali Shah v. Abdul Saghir Khan Sherwani (PLD 1990 SC 504), Nagina Cotton Mills Ltd. v. Pakistan (1990 CLC 1337) and G.M. Malik, Chairman Board of Intermediate & Secondary Education, Faisalabad v. Province of Punjab (1990 CLC 1783).
16. The anxiety of the petitioner is to protect illegal and irregular order in his favour. The same is of the spicy as noted by the Hon'ble Supreme Court in case of Syed Raunaq Ali (Supra). The same are not to be protected as it would amount to perpetuate the illegality. The respondents acted illegally to make the appointments. This illegality surfaced with the report of Director General (Inspection), Local Government and Rural Development and the respondent proceeded to rectify the illegality. It is against public welfare, which is a supreme law, to afford any relief in constitutional jurisdiction against such corrective orders. This Court is vested with the powers to decline the relief. In this behalf reference may be made to recent judgment of the Hon'ble Supreme Court reported as Rana Muhammad Arsahd v. Additional Commissioner (Revenue), Multan (1998 SCMR 1464).
17. The upshot of this discussion is that this writ petition is dismissed with no order as to costs.