RAJA MUHAMMAD KHURSHID, J.- This is Regular First Appeal against the judgment and decree dated 13.9.1995 passed by Ch. Habib-ur-Rehman, Civil Judge, 1st Class, Lahore whereby he dismissed the suit filed by the predecessors-in-interest of the present appellant.
2. The brief facts are that the predecessor-in-interest of the appellant (hereinafter to be called plaintiffs) filed a suit for declaration and possession with consequential relief that the suit property described in the plaint belonged to them, as they were allegedly its exclusive owners. However, the said property was allegedly treated to 'Enemy Property' without complying with the Codal formalities as provided in the Defence of Pakistan Ordinance, 1971 read with Defence of Pakistan Rules, 1971. In this respect the impugned Notification No. SRO-1142(I)/74, dated 26.8.1974 was issued by the respondents Nos. 1 & 2. After the aforesaid Notification the property in question was alienated to respondents Nos. 3&4 vide Sale Deed dated 25.10.1976. In this connection, it was contended that the aforesaid Notification or the Sale Deed had no legal value nor it deprived the plaintiffs of their proprietary rights in the property in question, which were fully protected under the Constitution of Islamic Republic of Pakistan, 1973.
3. In the back drop of foregoing facts, it was averred by the plaintiffs in the suit below that they were Pakistani Nationals, but followed Hindu Religion. However, they later on embraced Islam and their original Hindu names i.e. W. Gopal Das and Lila Vatti Bai were given Islamic, names as Muhammad Jameel Das and Humaira Jameel respectively. Both the plaintiffs being husband and wife claimed to be the owners of the property in question. The amendment of the names 1 of the plaintiffs was made in the plaint in pursuance of order dated 19.6.1995 passed by the learned trial Court. The plaintiffs later on left Pakistan for Nairobi' (Kenya) in connection with their business. They retained the Pakistani Passport and also continued to be the citizens of Pakistan while leaving for Keyna. At that time a writ of the property in question was alleged to be in possession of their tenants Mr. B. Brown Velkart, Mr. Karte and Mr. Gognachi whereas four rooms continued to be in the personal possession of the plaintiffs till they left Pakistan on 18.5.1968./ The tenants afore- mentioned however, vacated the premises in 1971, whereupon the Government of -Pakistan took on lease a portion of the premises to. Accommodate Civil Defence Academy. The remaining portion consisting of three rooms was rented out by the plaintiffs to Mr. Oun Pakreel.
4. In the absence of the plaintiff, defendant No. 2 took over the property as Enemy Property' without any justification vide the Notification aforementioned. Thereafter defendant No. 2 illegal offered the disputed property for. Sale to the Province of Punjab for which a Sale Deed dated 25.10.1976 was prepared but was never got registered and as such the aforesaid sale could not materials although a consideration of Rs. 3,80,000/- was proposed to be paid by the Provincial Government to the defendant No. 2 (Federal Government).
5. That the plaintiffs had earlier entered into an agreement for sale in which they had received an earnest money of Rs. 26,000/r and on the failure of the agreement, the prospective vendee had to file a suit for recovery of Rs. 26,000/-, which was allegedly decreed by Mr. Rasool Bakhsh Laghari, the then learned Civil Judge, Lahore on 9.5.1964. The said decree was passed ex-parte which was set aside on a petition of the plaintiffs but later on the order setting aside the ex-parte decree was set aside by the High Court in "the absence of plaintiff No. 1. An application for the execution of the said decree was filed by the decree-holder, but subsequent proceedings were not known to the plaintiff No. 1 as he had left for Keyna before order of the High Court restoring the ex-parte decree was passed.
6. Plaintiff No. 1 came to know while in Kenya through a Pakistani National namely Muhammad Khalid that their disputed property was taken over as Enemy Property' but Federal Government of Pakistan. The plaintiff thereupon executed a General Power-of-Attorney in favour of Muhammad Ramzan and got it attested through Pakistan Embassy in Kenya. After due formalities the Deed of Attorney was sent to Pakistan for its delivery to Muhammad Ramzan aforesaid through Muhammad Khalid. The plaintiffs feeling aggrieved of the impugned Notification whereby their property in question was treated as 'Enemy Property' and subsequently when it was offered for sale to defendants Nos. 3&4 vide Sale Deed dated 25.10.1976, filed a writ petition to impugn the aforesaid Notification and Sale Deed on the ground that those were illegal, mala fide and without lawful authority. The aforesaid Writ Petition (W.P. No. 28-R/94) was however, dismissed in limine by a learned single Judge vide his order dated 9.2.1994 inter alia with the following observations.
"I have given my anxious consideration to the entire facts of this case. The matter involves disputed question of facts entailing the detailed enquiry. It has yet to be determined the status of the petitioners, who left for Kenya in the year 1963 on a Pakistani Passport which had since expired in 1968 appended with this petition. No lease deed as claimed by the petitioners in favour of Civil Defence Academy has been placed on file. The property vested in the Deputy Custodian after being declared as 'Enemy Property' as far back as in the year 1974. And the sale deed was executed in the year 1976. The Constitutional petition in the circumstances is also hit by laches. This being the position, I do not find it a fit case for interference in the exercise of my Constitutional jurisdiction and resultantly dismiss this writ petition in limine."
After the dismissal of the writ petition, the plaintiffs had filed the instant suit for the settlement of disputed facts and legal controversy. It was contended that the plaintiffs had never been declared to be 'Enemy subject' at any time as they had always been and continued to be the citizens of Pakistan till the filing of their suit, therefore, their property could not be treated as 'Enemy Property'.
Since the plaintiffs had never been at War with the State of Pakistan nor had ever been the subject of any State, which was at war with Pakistan, therefore, they would not fall within the definition of 'Enemy' nor their property could ever be treated as "Enemy Property'. Besides that, they were never served with any notice nor they were ever heard by defendant No. 2 before making the impugned order, therefore, the same was not only illegal but also un-islamic. It was, therefore, prayed in the Court below that Notifications dated 26.8.1974, 23.5.1976 and the Sale Deed dated 25.10.1976 were illegal and liable to be cancelled.
7. The suit was resisted in the Court blow on the ground that it did not disclose any cause of action nor the plaintiffs had come to the Court with clean hands; that the value of the subject-matter was shown as Rs. 50,00,000/-, but no Court-fee was allegedly affixed and as such the plaintiff was liable to be rejected. The averments made in the plaint were denied except to the extent that the plaintiffs were the owners of the property in dispute. However, allegedly they had ceased to be the owners of the property after the said property was declared as "Enemy Property' and the possession of the same was taken over by the Custodian of Enemy Property'. The boundary given in the plaint in respect of the property in question was admitted. It was also admitted that the property in question was in possession of Civil Defence Academy at the time of its taking over by the Custodian of Enemy Property. That after the abolition of the West Pakistan Enemy. Property Management Board, Lahore, all the Enemy property vested in the Deputy Custodian of Enemy Property Islamabad w.e.f. 1.10.1973. It was also contended that the Sale Deed dated 25.10.1976 was legally executed and registered. The pendency of the execution proceedings were admitted in which the Government had applied for becoming a party, but that application was dismissed by the learned executing Court. Finally it was contended that the suit of the plaintiffs had no merit and was rightly dismissed. A similar position was taken by defendants/respondents Nos. 3 and 4 in their written statements with the emphasis that the property now vested in the Government of Punjab after its sale by the Federal Government through the Deputy Custodian 'Enemy Property' i.e. Defendant No. 2. The tenancy of the Civil Defence Academy under plaintiffs was denied as the disputed property vested in defendants Nos. 3 & 4.
8. During the proceedings in Court below, the deficiency of Court-fee was made up, hence the question regarding the property Court-fee was settled.
9. The plaintiffs examined their Attorney and other oral evidence apart from documentary evidence to prove their case. The defendants/respondents also examined their oral as well as documentary evidence in support of their claim.
10. The learned Civil Judge vide the impugned judgment however, dismissed the suit on the ground that the property in question was treated as 'Enemy Property' though original it was owned by the plaintiffs. Besides that it was held that the suit was hopelessly barred by time because the property was taken over in 1974 whereas the suit was instituted some-where in 1994, without any convincing justification for its delay. Similarly the Sale Deed dated 25.10.1976 in favour of defendant No. 3 i.e. Government of Punjab was also considered to have been executed rightly.
11. During the arguments, the learned counsel from both sides based their contentions on the points annotated above.
12. We have given our anxious consideration to the controvertial points and have also gone through the record of the learned trial Court with the able assistance of the learned counsel from both sides. One thing is clear that before the alleged declaration of the disputed property as 'Enemy Property' it was the ownership of the plaintiffs. This fact has not even denied by the defendants and is supported by the documents placed on record such as assessment of the Rating area of the Lahore Municipal Corporation for the year 1952-53 Ex. P/3, which showed that both the plaintiffs were recorded as owners of the property in question. Yet in another assessment i.e. Ex.PM for the year 1971-72 i.e., immediately before the impugned notification, the plaintiffs were shown as owners (Non-Evacuee) in the column of ownership. The Civil Defence Academy and Aur Parkeel were shown to be in possession as tenants on a rent of Rs. 900/- and Rs. 100/- respectively. Similarly the entry in respect of the assessm ent for the year 1962-63 Ex. P/5 showed that the plaintiffs were Non- Evacuee owners and were in self-occupation. The extracts from the revenue record i.e. Ex.P/6 would support the ownership of the plaintiffs, in the disputed property. The passport Ex. P/8 shows that the plaintiff W. Gopal Das was a Pakistan National and had finally left for Ugenda (Kenya) under a visa issued by the aforesaid country. Earlier to that he had visited India on an Indian visa. However, entries at pages 14, 15 of the passport will show that he left again for Ugenda Protectorate in May, 1968. This makes it amply clear that the plaintiffs were Pakistani Nationals and possessed Pakistani Passport and lived in Pakistan before they had gone to Ugenda (Kenya). The right of a Pakistani citizen to be dealt with in accordance with law in respect of his life, liberty, body, reputation or property is guaranteed under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. This recognises the supremacy of law for providing the aforesaid guarantee to every citizen till he is disqualified in accordance with law. Since it is Constitutional guarantee, therefore, any law, which restricts or invades such right should be strictly construed. The mere fact that a citizen is out of the country would not deprive him of his Fundamental Rights guaranteed to him under the supreme law of the land. Any action contrary to the guarantee provided under Article supra can be challenged for appropriate relief. Likewise Article 24 of the Constitution ensures that no person shall be compulsorily deprived of his property save in accordance with law. Although exceptions are provided under the Article to the aforesaid right, but those are to be construed strictly wherever an action is intended to deprive a citizen of his property. The protection of proprietary rights in a property is a fundamental right and cannot be allowed to be taken away easily at whims of the Government functionaries. Likewise every citizen of Pakistan has a right to be treated equally and to have equal protection of law under Article 25 of the Constitution.
13. In the background of the aforesaid Constitutional guarantees, it is to be seen whether or not the plaintiffs have been deprived of their property, in accordance with law. In this respect both the parties have relied upon SRO 1142(I)/74 dated 26.8.1974, photocopy of which appears as Annexure-E at page 117 of the Paper book. It reads as under:- "In exercise of the powers conferred by sub-rule ((1A) of rule 182 of the Defence of Pakistan Rules, as continued in force by Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969 (I of 1969), the Federal Government is pleased to direct that all those enemy properties which stood vested in the Vice-Chairman, West Pakistan.
Enemy Property Management Board, Lahore on the 30th September, 1973. Shall vest and shall be deemed to have so vested in the Deputy Custodian of Enemy Property for Pakistan, Islamabad on the 1st October, 1973".
A bare perusal of the aforesaid SRO will show that it was an omnibus type of order wherein the detail of Enemy Property, which vested in the Enemy Property Management Board, Lahore and further vested in the Deputy Custodian of Enemy Property, Islamabad has not been given. Least to say that the property in question was mentioned therein. It is thus obvious that the defendants/respondents have failed to place on record any notification published in the official Gazette whereby the property in question was treated as Enemy Property' and vested in the Custodian of 'Enemy Property' for Pakistan. The SRO aforesaid has, therefore, no legal sanctity under any law whereby the plaintiffs were deprived Of their right to hold property. It is also an admitted fact that no Show-Cause Notice was issued nor the plaintiffs were heard before their property was taken over. On the contrary, it appears that while the plaintiffs were out of the country, the defendants took over their property without invoking any valid provision of law to deprive the petitioners of their property. Even the oral evidence examined at the trial will show that there was no notification with the Government whereby it could be shown that the property in question was ever declared as Enemy Property or the plaintiffs were declared as 'Enemy' or 'Enemy Subject' under the relevant law i.e. Defence of Pakistan Ordinance, 1971 read with Defence of Pakistan Rules, 1971.
The SRO afore-mentioned is totally silent about the property in question nor it has given the details of any other property which vested in the Deputy Custodian, nor plaintiffs had any occasion to show-cause against the wrongful application of the provisions contained in Defence of Pakistan Ordinance, 1971 or Defence of Pakistan Rules, 1971. As such the defendants/respondents acted in flagrant violation of the universally known principle of Natural Justice namely Audi Alterm Partem, which has now been fully entrenched in the judicial system of Pakistan. A reference to PLD 1970 Lahore 6 may be made with advantage. It is observed in the cited judgment that "There are innumerable pronouncements by the superior Courts, particularly by the Supreme Court, laying it down as a rule that nobody can be made to suffer any harm to his rights including those relating to property, person or reputation without giving him sufficient opportunity of showing cause. The approach of Courts, in application of this principle to individual cases, has been pragmatic. No technical consideration is allowed to bar the application of the above-mentioned principle. Barring a few exceptions, e.g. Exercise of purely police power in preventive measures, this principle applies to all situations. Ordinarily, therefore, when a statute does not expressly bar the application of this principle, the Courts shall presume that its application is included in the provisions of that statute. It is a necessary corollary of the acceptance of this principle that the procedural laws will have to be interpreted in such a way as to avoid conflict with this principle. This being a basic reality, all considerations, incidentally and consequentially related to the above principle, will have to be brought into operation in order to see that the said principle is fully satisfied".
14. Now a question would arise if defendants Nos. 1 & 2/respondents Nos. 1 & 2 could transfer the property in question to defendants/respondents Nos. 3 and 4. Since the property did not vest in the defendants/respondents Nos. 1 & 2, therefore, they could not pass on better title than they possessed in it. Apparently they did not possess any title in the aforesaid property, therefore, they could not enter into any Sale Deed with any person i.e. Defendants/respondents Nos. 3&4.
15. We have gone through the documentary evidence as well as oral evidence examined at the trial in respect of the sale transaction. The correspondence on the subject appears on the original file of the trial Courts as Ex. D.I, Ex. D/2, Ex. D/3, Ex. D/4, Ex. D/5 and Ex. D/6. Although it was proposed that the property in question shall be sold to the Province of Punjab for a consideration of Rs. 3,80,000/- for which the aforesaid amount was allocated by order of the Governor of Punjab, but the sale did not mature, nor any Sale Deed was ever registered. A photocopy of Draft Sale Deed dated 25.10.1976 appears in the file as Annexure-F Page-32. It has not been got exhibited, but its perusal shows that it being merely a Draft was never got registered so as to gain finality. This fact has been admitted even by the defendants during the hearing of this appeal in reply to an application moved by the applicants (C. M. No. 2-C/96) whereby they had brought on record letter No. 3(31)
CEP-1/68/ Vol-II, dated 6.11.1994 issued by Jamil-ud-Din Qureshi, Deputy Custodian, Enemy Property for Pakistan, Government of Pakistan, Ministry of Communication, Islamabad, and was addressed to Mr. W. Gopal Das, S.O. Pretum Das, West Land, Brock Side, Groova No. 8 Nairobi, Keyna. This letter was admitted as correct, by the learned counsel for the defendants Nos. 1 & 2 and was brought on record as mark 'A' without any objection from any side. It makes the whole situation clear. It says as follows: "It is intimated (to) you that I examined the record of said property and documents provided by you, I hereby declare/clarified (clarify) that property No. S-48-R-II, known as 22 Aikman Road, Lahore does not fall in Notification No. SRO 1142(I)/74, dated 26.8.1974.
Moreover the Govt, of Pakistan was (had) sold the property to Govt, of Punjab in consideration (of)
Rs. 3,80,000/- such sale transaction could not mature. Hence Sale-Deed was not registered by the Deputy Custodian in favour of Govt, of Punjab."
Note: (the words in brackets were added by us to eliminate clerical mistakes from the original text to make it meaningful.)
16. A perusal of the contents of the aforesaid letter as reproduced above will show that it settled the controversy between he parties that the property in question was never notified to be the Enemy Property vide SRO in dispute. Likewise, though its sale proceedings, were initiated, and a Draft Sale Deed was prepared, but it never matured nor it was admittedly ever got registered by the defendants/respondents Nos. 1 & 2 in favour of defendants/respondents Nos. 3 & 4. This is also in line with the oral evidence examined at the trial as none of trie witnesses examined by the defendants/respondents could clearly show that the property in question was validly acquired under the disputed SRO or that the Sale Deed had ever become final.
17. In the last an objection was raised that the suit was not properly instituted or that the same was time-barred. In this regard, it was alleged that General Power-of-Attorney was given by the plaintiffs to Muhammad Ramzan, who further on constituted Special Attorney namely Abdul Ghaf for vide Ex. P/l, who instituted the present suit. It was contended that since Haji Muhammad Ramzan was not competent to constitute Special Attorney, therefore, the suit was not properly instituted. In this respect perusal of Ex. P/2 i.e.. General Power-of-Attorney which was attested by the High Commission of Pakistan in Nairobi and latter on registered before the Sub-Registrar, Lahore showed that the executants i.e. The plaintiffs had delegated amongst others all powers to their General Attorney Muhammad Ramzan in the following words :- "And we hereby agree all acts and things lawfully done by us said General Attorney Muhammad Ramzan shall be constructed as acts, deeds and things done by us we undertake to rectify and confirm all such things done on this 27th April, 1993".
The afore-quoted clause of the General Power-of-Attorney given legal cover to all type of the acts, deeds and things done by the aforesaid Attorney on behalf of the executants to which they undertook to rectify and confirm. In that background, the Special Power-of-Attorney executed by the General Attorney in favour of Abdul Ghafoor to pursue this matter would be well within the ambit of the Deed of General Power-of-Attorney and, therefore; all the acts done by the Special Attorney would be considered to be the acts of the original owners. The suit having been instituted Dy the duly autrosed Special Attorney would, therefore, be within the ambit of law and hence maintainable.
18. The question of limitation would not come in the way of the plaintiffs because the very action on the part of the defendants to deprive the plaintiffs of their Constitutional right to hold their property was not only bad in the eyes of law, but could be considered as a non-entity qua the rights of the plaintiffs. Hence there was continuous breach of fundamental right which provided continuous cause of action and as such the suit shall not be considered as time-barred. In this context reference may be made to Yousaf Ali v. Muhammad Aslam Zia and 2 others, reported as PLD 1958 Supreme Court (Pak.) 104, Hussain Bakhsh and others v. Settlement Commissioner and another, reported as PLD 1969 Lah. 1039 and Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others reported as 1987 SCMR 1543.
It was held in the rulings referred above that if any order is without jurisdiction and void, then it need not be formally set aside and no question would, therefore, arise to hold that the matter cannot be considered on merits on account of any bar of limitation; that where the order allotting the land in question in favour of the petitioners was void, ab initio, being without jurisdiction, the question of limitation would not arise, hence if on the basis of a void order subsequent orders have been passed either by same authority or by other authorities, the whole series of such orders, together, with the superstructure of rights and obligations built upon them, it must unless some statute or principle of law recognizing as legal, the changed position of parties is in operation, fall to the ground because such orders have as little legal foundation as void order on which they are founded. As such a void order will have no value whatever and is simply to be ignored and consequently no question of limitation will arise against such an order.
19. Keeping in view the above enunciation of law and since the notification in question and subsequent sale on its basis was illegal and without jurisdiction, therefore, the entire series of act on the part of respondents/defendants will be void, ab initio and as such on question of limitation will arise for getting those at any point of time.
20. In view of our above discussion, we come to an irresistible conclusion that the plaintiffs/appellants have proved their case that they are the owners of the property in question and that they were illegally deprived of the same as such SRO 1142(I)/74, dated 26.8.1974 and the Sale Deed dated 25.10.1976 are held to be of no legal effect. The appeal is accordingly accepted and the judgment and decree dated 13.9.1995 passed by the learned Civil Judge 1st Class, Lahore is set aside and the suit of the plaintiffs is decreed against the defendants/respondents. The parties are however, left to bear their on costs throughout.