BANK OF BAHAWALPUR LTD. Versus UNIVERSAL TRADING CORPORATION
These are two applications under Order XXI, rule 58, C. P. C. one by' Mst. Qadirunnisa Begum and the other by House Building Finance Corpora tion. The case of the lady intervenor is that the property attached in execution of the decree made against the Judgment‑debtor firm belongs to her and that she has no concern with the Judgment‑debtor or any of its partners. The case of the House Building Finance Corporation is that they are the mortgagees of the property attached and since this property belongs to the lady it was not liable to attachment in execution of the decree passed against the Judgment‑debtor.
2 The decree‑holder contends that the lady is only an ostensible owner while the real owner is Wahajuddin who is a partner in Judgment‑debtor firm.
3. Mr. Zari, Advocate for the House Building Finance Corporation argued that the only question for the consideration of the Court was posses sion of the property under attachment and not its title for these applications were filed prior to coming into force of Law Reforms Ordinance, 1972. On the other hand Mr. Mansoorul Arfin and Mr. Shah Yakoob for the decree- holder and lady intervenor respectively contended that the amendments effected in Order XXI, rules 58, 59, 61 and 62 by the said Ordinance were retrospective and the Court had therefore, to adjudicate upon the title of the intervenor in the attached property. It was also contended by Mr. Mansoor ul Arfin that the House Building Finance Corporation was not concerned with the effect of the amendments for they were merely mortgagees and the attachment can continue subject to the mortgage. However, the question raised relates to application of law and its answer has to be given by Court.
4. Mr. Zari conceded that the amendments introduced in Order XXI, by the Law Reforms Ordinance, 1972, are changes made in procedural law and will normally be retrospective in operation but, went on to argue that this rule of interpretation was subject to one important circumstance which is that when some valuable rights have accrued under the old procedure the new procedure in its application should not be allowed to prejudice those rights. Mr. Mansoorul Arfin on the other hand contended that no existing rights have been affected by the amendments which only provide for a more speedy and effective remedy. The learned counsel relied on the following passage appearing in Crawford's book on Construction of Statutes, 1940 Edn. :,at page 581:‑
"As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation. Similarly, the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of a contrary legislative inten tion, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least presumptively apply to accrue and pending as well as to future actions."
"My attention was also invited to the following observations of the Supreme Court of Pakistan in the case of Adrian Afzal v. Sher Afzal (P L D 1969 S C 187) at page 192:
"The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure. provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate re troactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application Hill tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Court would favourably incline towards giving effect to such procedural statutes retroactively."
The question, therefore, that arises for consideration is whether the :amendments affect any vested right of the intervenor or that it only relates to remedy. The argument of Mr. Zari was that under the old law the intervenor had a right to have an attachment vacated if he showed that on the date of the attachment he was possessed of the property attached. It may a once be noted that it is not claimed that such property to begin with cannot be attached but that the attachment effected can be got vacated by the intervenor. Again the order vacating the attachment was subject to a regular suit under Order XXI, rule 63, C. P. C. The amendment, therefore, improves upon the remedy previously available and, helps in resolving the real controversy between the parties instead of leaving it open to be determined! in another suit at a future date. I am supported in this view by the observations of the Supreme Court in the case of Mir Laik Ali v. Standard Vacuum Oil Co. (ESSO) and another (P L D 1964 S C 220). The Supreme Court was in this case considering though hypothecally only, the effect of identical amendments which were introduced by Ordinance XLIV, of 1962 and Kaikaus, J., observed as follows:‑
"The learned Single Judge however took no notice of the amendment and decided the case as he would have decided it on the date when the arguments were concluded. By Act III of 1963 the amendment introduced by Ordinance XLIV of 1962 was, repealed so that the original rules of Order XXI were restored. At the same time a provision was made that any order which had been passed by any Court during the time when the amendment was in force would not bar any suit for determination of any question of title. Now it could be argued that on the date on which the learned Single Judge decided the objection the new law was in force and he could go into the question of title, but if that was so then the order of the learned Single Judge would have to be set aside and the case would have to be remanded for an inquiry in accordance with the amended provision because admittedly the inquiry made by the learned Single Judge was under the original provision However, such a remand has now become meaningless for the amendment has been repealed and now again the enquiry has to be made in accordance with the original provisions. We have in view of these considerations come to the conclusion that the repealed amendment has altogether to be ignored and we have to decide this appeal on the basis that the proceedings should have been in accordance with the unamended provisions of the Civil Procedure Code."
5. Looking to the applications on merits I find that the suit which resulted in the decree in favour of the decree‑holder was filed on 26‑5‑1962, the decree made on 13‑8‑1963 and property attached on 21‑1 2‑1964. In so far as documents of title of the attached property are concerned, they are admittedly in the name of the lady intervenor whose only connection with the partner in the Judgment‑debtor firm is that her son‑in‑law Sirajuddin is the brother of one of the two partners. It is also admitted that the lady obtained a loan of Rs. 40,000 from the House Building Finance Corporation under a registered mortgage executed by her as owner‑mortgagor. In support of its allegation that the real owner of the property is Wahajuddin, a partner in Judgment‑debtor firm the only evidence, if it can be so‑called, led on behalf of the decree‑holder is the bare statement by the Bank's witness (Exh. 48) Syed Abdul Wadood that it was so reported to him by the Judgment‑debtor Wahajuddin, who has not been examined by the decree‑holder. This witness made no effort to ascertain from the record‑of‑rights as to whom the attached property belonged or whether it stood in the name of the intervenor lady or that it had been mortgaged with the House Building Finance Corporation.
6. Mr. Mansoorul Arfin, for the decree‑holder, however, contended that the evidence led on behalf of the intervenor clearly go to show that the property attached only ostensibly stood in the name of the intervenor. He minted out that the intervenor was supposed to have purchased the attached property when it was a vacant plot from Wahajuddin for a sum of Rs. 9,000 under a registered sale deed dated 13th December 1961, but there was no evidence as regards the reasons which led the seller to enter into this transac tion or that the price agreed to was the market price. He contended that the intervenor should have examined his seller Wahajuddin to prove the circums tances of the sale and this examination would have provided him as opportunity to cross‑examine and to establish that there was no necessity for him to sell the said plot or that it was for an inadequate price. However, nothing prevented the decree‑holder to examine Wahajuddin as their witness and prove their allegations. It may further be noted that the lady who was the purchaser and who might perhaps be aware of these matters was not cross‑examined on these points. It was next contended that according to the application which the lady made to the House Building Finance Corporation on 22‑12‑1964 for grant of loan there was already a ground floor construction of which the estimated cost was shown in the application at Rs. 60,000. The loan sought. it may be mentioned, was Rs. 40,000 for the construction of the first floor premises. The lady in her evidence only referred to the considera tion of Rs. 9,000 paid by her for the purchase of the plot and a further in vestment of Rs. 18,000 to Rs. 19,000 from her own resources for the construc tion or'‑ the property, but, made no reference to the source of additional money expended on the ground floor. The other evidence of its source it was pointed out, was wholly unreliable for according to the lady's son‑in‑law Sirajuddin, this money came partly from Syed Mahmoodul Hassan, the brother‑in‑law of the lady and partly from the witness himself and though so received, was not put in any Bank Account either of the intervenor or of the witness. The grievance was also made that Syed Mahmoodul Hassan was not examined on behalf of the lady to prove that she had received any money from him which was invested in the construction of the ground floor. It will, however, be noticed that no question was put to the lady as regards the sum. of Rs. 60,000 invested by her in the construction of the ground floor. On the other hand, a suggestion was made on behalf of the decree‑holder to witness Sirajuddin that the ground floor was constructed prior to her purchase, which suggestion was denied but no evidence was led on behalf of the decree -holder in support of their case that ground floor was constructed when the plot stood in the name of Judgment‑debtor Wahajuddin. As regards the investment of Rs. 9,000 and Rs. 19,000 made by the lady the same was not questioned in her cross‑examination, nor was her statement questioned that she had left property in India before she came to Pakistan. In relation to Rs. 9,000 significantly the suggestion made on behalf of the decree‑holder was that it was paid to the seller at his house and not before the Registrar. The other circumstances to which Mr. Mansoorul Arfin invited my attention were the deposit of the cheque obtained from the House Building Finance Cor poration in the account of the son‑in‑law of the lady Sirajuddin; lady's statement that she had entrusted the construction work to Sirajuddin; that she had employed another person by name Latif for the construction of the building and to whom she paid Rs. 150 per month and the lady's ignorance as regards the manner in which the instalments were repaid to the House Building Finance Corporation. There is little doubt that there is material variance in the evidence of Sirajuddin and Latif, for while according to the former and so also the lady, he was entrusted with the construction of the building but according to Latif, Syed Mahmoodul Hassan, the brother‑in‑law of the lady was looking after the construction of the property and used to pay the labourers. Similar was the evidence of Ismail Khan. the plumber though he did add that Sirajuddin also used to visit this plot. To this extent, however, the learned counsel is undoubtedly right that the evidence do not correctly disclose the person who had made constructions but this would not lead to the desired result that the property did not really belong to the lady for it has been established that the lady paid a sum of Rs. 9,000 to Wahajuddin for purchase of the plot, that she spent Rs. 18,000 to Rs. 19,000 on the construction, that she had left some property in India, that she had obtained a loan of Rs. 40,000 from House Building Finance Corporation and that a part of the ground floor was let out by her to one Naim, who has been examined as a witness.
7. Mr. Mansoorul Arfin contended that the source of money which was no doubt an element for consideration in determining the nature of the transaction i.e. whether the transaction is a Benami or not, was of importance in cases where the dispute arises between the Benamidar and the real owner, but when the question of Benami arises between a third party on one hand and the real owner and the Benamidar on the other, this element loses much of its force, as it is a matter between the real owner and the Benamidar and the third party is not expected to know the source of the consideration money and, therefore, what assumes importance is the conduct of the parties and 1 he surrounding circumstances. Reliance for this purpose was placed on the observation of a learned Single Judge of the Dacca High Court in the case reported in Jamila Khatoon v. Yasin and others (P L D 1959 Dacca 690). Even if I were to assume that the principle stated was correct I do not think that in the present case it has been sufficiently shown from the surrounding circumstances or the conduct of the parties that the transaction in question was a sham transaction. Mr. Yakoob Shah, the learned counsel for the intervenor on the other hand invited my attention to the following observation of a Division Bench of this Court reported in Ali Akbar Shah and others v. Hussain Bux (P L D 1961 Kar. 548) at page 556:‑
"It is now a well established rule of law that the person who impugns the apparent character of a transaction must show something to establish B that it is a Benami transaction and in cases where third parties are affected Courts require strict proof of Benami purchase."
8. I am not only bound but in respectful agreement with the above observations. In reply to the contention raised on behalf of the lady intervenor that the decree‑holder who impugns the apparent character must show some thing or the other to establish that it is a Benami or a sham transaction, and be has failed to discharge this burden, Mr. Mansoorul Arfin invited my atten tion to the following observations of the Supreme Court of Pakistan reported in Mst. Qaisar Khatoon and others v. Maulvi Abdul Khaliq and another (PLD1971SC334) at page 343 .‑‑
"In any event, the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record (vide Manaka v. Madha Rao A I R 1950 P C 25). The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion (vide P L D 1948 P C 171). In such an event the rule is that the party on whom the onus lay must fail. This, however, is not the case here, for, the evidence is, by no means, evenly balanced."
Reliance was also placed on the observation to this effect in another Supreme Court case reported in Mohammad Anwarullah Mazumdar v. Tamina Bibi and .others (1971SCMR94). In this case, however, it was further observed by the Supreme Court that "if the petitioner fails to establish his own case, he cannot succeed on the weakness of the defendants". The aforesaid observations of the Supreme Court would perhaps assist the intervenor for the evidence led can at best be said to be evenly balanced leading to no definite conclusion and the decree‑holder must fail for he has failed to discharge his onus of proof. Finally I refer to the following observation of the Privy Council made as far back as 1866 in the case of Sreeman Chynder De v. Gopal Chunder Chucker butty ((1866) 11 M I A 28):‑
"Undoubtedly there is in evidence, circumstance which may create suspicion, and doubt may be entertained with regard to the truth of the case made by the appellant; but in matters of this description it is C essential to take care that the decision of the Court rests, not upon suspicion but upon legal grounds, established by legal testimony."
9. The result is that this application of the intervenor lady under Order XXI, rule 58, C. P. C. is granted with cost and the attachment made of the is vacated. In the circumstances it is not necessary to make property any order on the application under Order XXI, rule 58, C. P. C. made by the House Building Finance Corporation.
K. B. A, Application accepted.