A & B OIL INDUSTRIES LTD Versus GOVT. OF PAKISTAN
ORDER
1. ABDUL KADIR SHEIKH, J .‑By this application under Order IX, rule 9 read with section 151, C. P. C, the petitioner, A & B Oil Industries Ltd. seeks restoration of the Constitution Petition No. 358 of 1972 which was dismissed on 8th October 1973 with the following order:‑
2. "The learned counsel for the petitioner stated that the petitioner‑Company has since been taken over by the Government and he has received no instruction to appear on their behalf in spite of the fact that he has sent the necessary intimation to the new management.
3. In the circumstances, we dismiss this petition for non‑prosecution, with no order as to costs. The interim order dated the 23rd August 1972 consequently stands vacated, and the respondents shall be informed accordingly."
4. It may be mentioned that the case had been adjourned from time to time, ever since 23rd August 1972, when the petition was admitted to regular hearing, and ad interim order was issued restraining the State Bank of Pakistan, respondent No. 3, from executing certain Bank guarantees furnished by the petitioner‑Company for payments of certain monies. Indeed, on 24 th April 1973 it was specifically directed, while adjourning the petition at the request of Mr. Abbas Zia, the learned counsel for the petitioner, that "no further adjournment will be allowed."
5. It is now, however being prayed on behalf of the petitioner. Company .that for the reasons disclosed in the affidavit filed by Saeed Malik, the Con troller of the petitioner‑Company, the petition be restored to its original file. ,Mr. Saeed Malik has affirmed as follows:‑
6. "(2) That after the Provincial Government of Sind had inter alia issued orders dated 1‑9‑73 and 3‑9‑'l3 regarding requisitioning of the properties of the petitioner‑Company, the entire premises were sealed and an inventory of all the stocks had to be prepared and all the voluminous record and papers of the company had to be sorted out.
(3) That in the circumstances it took considerable time for the new Managing Director appointed for the company to take full charge of the affairs of the company.
(4) In this state of affairs the above constitutional petition came up for hearing before this Hon'ble Court.
(5) That it transpires that the learned Advocate appearing originally in this matter on behalf of the previous management of petitioner‑Company informed the Government appointed Controller about the above matter requesting for instructions and also intimating the date of the next hearing in this Honourable Court. However, due to the uncertain fluid state of affairs prevailing in the management of the petitioner Company the matter could not be brought to the notice of the proper authorities in time for instructions in this behalf.
(6) That in view of the above administrative problems the previous learned Advocate in his own discretion stated that he had "no instruc tions" in the matter and subsequently the writ petition was dismissed by this Honourable Court for non‑prosecution on 6‑10‑1973.
(7) That it took considerable time since 8‑10‑73 for this matter of non prosecution to be brought to the notice of the Government appointed Controller who himself had to seek further instructions as to how to proceed and hence the slight delay in filing the accompanying restora tion application.
(8) That it is respectfully submitted that in the premises the non appearance of the petitioner on the date was due to unavoidable circumstances, inadvertence and bona fide error and/or due to sufficient cause."
7. In support of the application, Mr. Aziz Kurtha, the learned counsel ‑who now appears for the petitioner‑Company. contended that until Notifica tion No. S. O. III(S&GAD)‑13‑17/73 dated 9th March 1974 was issued by the Provincial Government, in the Services and General Administration Depart ment, the petitioner‑Company was not formally taken over under the provisions of the Hyderogenated Vegetable Oil Industry (Control and Development) Ordinance, 1973, and in the absence of the legally‑authorised Management of the petitioner‑Company, instructions could not be given to Mr. S. Abbas Zia, the learned counsel who was appearing for the petitioner‑Company on the day the petition was dismissed. On being surprised, on the statement made by Mr. Aziz Kurtha, Advocate that the petitioner‑Company was under an un authorised Management in law as from early September up to 9th March 1974, we questioned the learned counsel as to the circumstances in which the petitioner‑Company was taken over by the Government. The learned counsel gave the reply that an Executive Order was issued on 3rd Septem ber 1973 by the Ministry of Production and Presidential Affairs (Production Division), Government of Pakistan where under Mr. M. O. Zaman, the Managing Director of the Karachi Gas Company, took over the Management of the petitioner‑company for some time, and afterwards the Management was placed in the hands of Mr. Saeed Malik who has filed the affidavit in support of the application. According to the learned counsel, Mr. Saeed riialik took over the management only for a short period, and thereafter several officers were placed in charge of the affairs of the petitioner‑Company, from time to time, until the valid appointment was made, for the first time on the 9th March 1974, under the Notification issued by the Provincial Government referred to above. The stand taken by Mr. Aziz Kurtha, however, was that the appointments of Mr. M. O. Zaman and his successors who took over the Management of the petitioner‑Company were just an informal arrangements for the reason that these were not made under the provisions of the Hydrogenated Vegetable Oil Industry (Control and Development) Ordinance, 1973 or the Hydrogenated Vegetable Oil Industry (Control and Development) Act, 1973 which was passed on the 15th September 1973. It was on the basis of these irregular appointments of the officers who were placed in charge of the petitioner‑Company that the learned counsel took the plea that, in the absence of any legally authorised Management, there was chaos or vacuum, in his own words, "the petitioner‑Company was in no man's land," and the instructions could not, therefore, be given to Mr. S. Abbas Zia, the learned counsel, who was previously representing the petitioner‑Company. Mr. Iqbal Siddiqui, the learned counsel for the State Bank of Pakistan, respondent No. 3, vehemently opposed the application on the ground that it is not only hopelessly barred by time, but even on merits it cannot succeed, for, the petitioner has not shown a sufficient cause for the restoration of the petition. In support of the contention that the application is barred by limitation. Mr. lqbal Siddiqui pointed out that the petitioner has sought the aid of Order IX, rule 9, C. P. C. for the grant of the prayer by specifically mentioning this provision of law in the application itself, and on this admitted position, 30 days' period of limitation prescribed under Article 163 would be appli cable, and the application having been filed much beyond the period of limita tion, i.e. on 31‑12‑1973 for setting aside the order passed on 8‑10‑1973 must be dismissed on the short ground alone. The learned counsel also placed reliance on the decision of the Supreme Court in the case reported a; P L D 1970 S C 1, in support of the contention that the provisions of Code of Civil Procedure apply to the procedure governing the disposal of constitutional petitions, which involve civil disputes between the parties.
8. In regard to this aspect of the case, Mr. Aziz Kurtha contended that the Code of Civil Procedure, particularly its provisions contained under Order IX, rule 9 and section 151 are not attracted to the application for The restoration of a Constitutional Petition dismissed in default, and this application cannot, therefore, be dismissed on the ground that it is barred by period of limitation prescribed under Article 163 of the Limitation Act. Mr. Aziz Kurtha however, conceded that in order to obtain relief of getting the petition restored, the petitioner, as of necessity, has to satisfy, in the first instance that a "sufficient cause" in the meaning of Order IX, rule 9 has been made out.
9. On this admitted position, therefore, we may firstly, examine the question if the petitioner has shown sufficient cause for the restoration of this petition.
10. In this behalf, the only ground urged by Mr. Aziz Kurtha was that the petitioner‑Company was not under a legally authorised management until 14th March 1974, and it was not, therefore, possible for those who were managing the affairs of the company to give instructions to Mr. S. Abbas Zia, the learned counsel who was appearing for the Company, up to the day it was dismissed for default. We would not like to embark upon the question as to whether the petitioner‑Company was under a legally authorised management as from 13th September 1973 until 14th March 197‑1 or not because firstly, the decision of this question is not essential to the resolution of the contro versy in this application and, secondly, it may lead to untoward litigation against the company and entail the Government to more serious complications than the one faced in the present case. It is, however, conceded that the petitioner‑Company was under a de facto if, not, de jure management, in true hands of certain persons appointed by the Government, irrespective of the question again whether these appointments were lawfully made or not. In this regard there are two fatal admissions made by Mr. Saeed Malik in his affidavit filed in support of the application. The first one is that Mr. Abbas Zia, the learned counsel, who was appearing for the petitioner‑Company "did inform the Government appointed Con troller about the above matter requesting for instructions and also intimating the date of next hearing in this Honourable Court (i.e. 8‑10‑1973)". The second fatal admission is that Mr. S. Abbas Zia had also informed the Government appointed Controller about the fate of the case on 8‑10‑1973. It is, however, asserted by Mr. Saeed Malik that "due to uncertain fluid state of affairs" prevailing in the management of the petitioner‑Company, the matter could not be brought to the notice of the proper authorities in time for instructions in this behalf. That it took considerable time since 8‑10‑73 for this matter of non‑prosecution to be brought to the notice of the Government appointed Controller who himself had to seek further instructions as to how to proceed and hence the slight delay in filing the accompanying restoration application".
11. If it is true that the management of the petitioner‑Company was "under uncertain fluid state of affairs", just about the period from 1‑9‑73 up to 14th March 1974 and it was not therefore possible for the "Government appointed Controller", who admittedly was placed in the charge of the management of the petitioner‑Company, he could have at least asked Mr. Abbas Z ,a, the learned counsel who was appearing for the petitioner‑Company to point out that state of affairs to this Court and seek adjournment. A,.cording to the statement made by Mr. S. Abbas Zia in Court on 8‑10‑1973, he had received no in structions from the new management of the petitioner‑Company in spite of the fact that he had sent the necessary intimation in regard to the hearing of the case fixed for that day. The least that was expected from the "Government appointed Controller" was to point out to Mr. S. Abbas Zia the dislocation in the affairs of the petitioner‑Company and ask him to place these facts before this Court. He chose not to do so. This is not all. He did not even care to appear himself or put in appearance through any other authorised Agent on 8‑10‑73 which was the date fixed for hearing of this petition before this Court to his own personal knowledge as conveyed to him by Mr. S. Abbas Zia. If the argument that then "Government appointed Controller" had no legal authority to represent the company on 8‑10‑1973, and that it was for the first tune on 14th March 1974 that the petitioner‑Company came under a legally valid management is accepted for the sake of argument, then this application must automatically fail, for, not only the application would be deemed to have been invalidly filed on 31st December 1973, but Mr. Aziz Kurtha cannot also be said to have been validly appointed as a counsel for the petitioner‑Company. It is noteworthy to point out that Mr. Saeed Malik, who was for some time during the relevant period the "Government appointed Controller" of the petitioner‑company, engaged Mr. Aziz Kurtha as a counsel for the petitioner‑Company on 1st December 1973. Ibis fact is borne out by the Vakalatnama filed by Mr. Aziz Kurtha himself. It is surprising that in spite of the fact that Mr. Aziz Kurtha was appointed on 1st December 1973 as a counsel for the purpose of filing the present application on behalf of the petitioner‑Company, the application itself was not made until 31st December 1973. This delay of 30 days has not even been explained. This aspect of the case, just by itself, shows that no care was taken, at all, in regard either to the prosecution of the case, or getting the petition restored, in spite of the fact that it was well within the knowledge of these who had the control over the affairs of the petitioner‑Company that the petition had been dismissed for non‑prosecution as long ago as 8‑10‑1973. We have already shown that to spite of the fact that it was brought to the notice of they "Government appointed Controller" that this constitutional petition was pending before the High Court and was fixed for hearing on 8‑1u.1973, be paid no heed. Nothing was done immediately or soon thereafter in spite of the fact that Mr. S. Abbas Zia,. Advocate informed the Government appointed Controller once again on 8‑1f'‑1973 that the petition had been dismissed for non‑prosecution. Having treated this case so lightly, it hardly now lies in the mouth of the petitioner‑Company to advance plea that a sufficient cause for the restoration of the petition has been made out. Indeed, in our opinion, the cause shown for restoration of the petition contradicts, rather than supports, the plea raised on behalf of the petitioner‑Company. There is, therefore no escape from the conclusion that a sufficient cause for the restora tion of this petition has not been made out at all.
12. We, may, before parting, deal with a minor argument advanced by Mr. Aziz Kurtha which in his view, however, was a major argument in the case. This was based on the interpretation he sought to place on the pro visions of section 23(2) of Hyderogenated Vegetable Oil industry (Control and Development Act, 1973). Section 23 reads as follows:‑
13. "23. General effect of vesting of establishment‑(1) Where the manage ment of a managed establishment has been transferred to a Corporation under section 13, all contracts, agreements and other instruments of whatever nature subsisting or having effect immediately before the date of transfer, in which such establishment was a party or which were in favour of such establishment shall, subject to the provisions of section 20, be of as full force and effect against or in favour of the Corporation, and may be enforced or acted upon as fully and effectively, as, if, instead of the establishment, the corporation had been a party thereto or as if they had been entered into or issued in favour of the corporation.
(2) If, on the date of transfer of the management of a managed establish ment to a Corporation, any suit, appeal or other legal proceeding of whatever nature is pending by or against such establishment it shall not abate, be discontinued or be in any way prejudicially affected by reason of such transfer or anything done under this Act, but the suit, appeal or other proceedings may be continued, prosecuted and enforced by or against the corporation."
14. The argument of Mr. Aziz Kurtha was that this Constitutional Petition could not have been dismissed for non‑prosecution on 8‑10‑1973 due to bar placed in this behalf under section 23(2) of the Act. We have no hesitation in rejecting this plea, for, the import of the clear language of section 23(2) is that any legal proceedings of whatever nature pending on the date of the transfer of the management of a managed establishment to a corporation is not to abate or be discontinued just for the mere reason of such transfer, or anything done under the Act, and these proceedings may be continued, prosecuted and enforced by or against the corporation. There was thus no bar by virtue of anything in the language of section 23 to prevent this Court from dismissing the petition for non‑prosecution.
15. On the view we have taken of the case, this application must fail and is accordingly dismissed, but in the circumstances we leave the parties to bear their own costs.
16. S. A. H. Petition dismissed.