GHULAM NABI QURESHI Versus GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence
AZIZ-UR-REHMAN, J. ---By means this judgment, we intend to decide the Application under section 12(2), C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013]. duly supported with an 'affidavit' of Mr. Hafeez Ullah son of Muhammad Shafi Mahar, Addl. MEO, Karachi, filed on behalf of the Respondents/Applicants herein, with a prayer that 'inter alia' order dated 13.02.2012, be set-aside as the same has been obtained by way of playing 'fraud' and 'misrepresentation' upon this Court.
2. The main pleas [grounds] on the basis whereof, the Respondents/Applicants besides, assailing various orders passed in the Petition in hand from its' very inception, have prayed for setting aside the said order[s] are:- a. that Mrs. Sugrabai wife of Yousufali Sadik who was holder of occupancy rights in respect of an immovable property i.e. Plot of land with a bungalow No.112 standing thereon, [Old No.6], measuring 0.69 acres [herein-after referred to as 'subject property', under old grant Class B-3, issued by Military Estate Office Sindh Circle [In short M.E.O. Sindh], situated in Depot Lines, in the area of Karachi Cantonment, as shown on a General Land Register duly maintained by M.E.O. Karachi, since, as urged, was not alive on 31.10.2003, when this Petition bearing C.P. No. D-1372/2003 [Mrs. Sugrabai wife of Yusufali Sadik through her General Attorney viz. Ghulam Nabi Qureshi son of Muhammad Ibrahim v. Government of Pakistan and 2 others], was filed before this Court, as such, all orders passed in this Constitution Petition No. D-1372 of 2003, be declared as null and void because the same have been obtained by way of playing 'fraud' and 'mis representation' upon this Court by the General Attorney namely Ghulam Nabi Qureshi son of Muhammad Ibrahim of Mrs. Sugrabai wife of Yousufali Sadik who admittedly had passed away on 04.07.2002 i.e. prior to the filing of the instant Constitution Petition on 31.10.2003. b. that the Case in hand, is a case of 'active concealment' of facts, mis-representation' and 'frauds', that have been played upon this Court by the 'so-called' Petitioner's General Attorney viz. Ghulam Nabi Qureshi son of Muhammad Ibrahim by concealing the factum of death of Mrs. Sugrabai wife of Yousufali Sadik on 04.07.2002, from this Court [Death Certificate is available on record as Annexure 'C' at Page 883 of the Court file] while, filing the instant Petition on 31.10.2003, on behalf of dead person. c. that the instant Constitution Petition No. D-1372 of 2003, as 'framed' and 'filed' on behalf of a dead person, is not only nullity in law but orders passed herein, are also of no legal effect as not only the instant Petition was filed on behalf of dead person but the so-called General Attorney was also incompetent in law to act as a General Attorney of dead person. d. that upon the death of the principal, Mrs. Sugrabai wife of Yousufali Sadik, i.e. much earlier on 04.07.2002, the 'General Power of Attorney', even if, it is presumed as executed in favour of Ghulam Nabi Qureshi son of Muhammad Ibrahim/General Attorney [New Petitioner as per 'Amended Title' filed on 29.04.2011], then, also the same, under law, was ceased to exist. [Copy of General Power of Attorney dated 04.04.1979, is available on record at Page 77 of the Memo of Petition]. e. that all orders obtained by means of 'fraud', 'mis-representation' and 'concealment of material fact' besides, having no value in the eyes of law, are liable to be 'set-aside', as 'inter alia' in the case in hand, the 'so-called' General Attorney viz. Ghulam Nabi Qureshi son of Muhammad Ibrahim of a dead person viz. Mrs. Sugrabai wife of Yousufali Sadik, who as per 'death certificate', placed on record through Application under section 12(2), C.P.C. read with section 151, C.P.C. filed on 28.08.2013, had actually passed away on 04.07.2002, i.e. before filing of the instant Petition on 31.10.2003, 'ex-facie' has/had committed 'fraud' and 'mis representation' upon this Court. All orders including order dated 13.02.2012, thus obtained in the instant Constitution Petition by way of 'fraud' and 'mis-representation', by the 'so-called' General Attorney of a dead Petitioner-lady, are not only illegal, void ab initio but the same are also liable to be set-aside. f. that the 'so-called' General Attorney of the deceased-lady, in no event, is/was competent to get the 'subject property' mutated in his name, and/or otherwise, can file the instant Petition in his capacity, as a General Attorney of a 'deceased-lady', who as evident from the 'Death Certificate' issued on 03.04.2003 [Annexure 'C' at Page 883 to the MoP] had passed away on 04.07.2002 i.e. much before filing of the Constitution Petition in hand, on 31.10.2003. g. that the Petitioner, Ghulam Nabi Qureshi son of Muhammad Ibrahim [as per 'amended title' of 29.04.2011], who had filed the instant Constitution Petition on behalf of Mrs. Sugrabai wife of Yousufali Sadik on 31.10.2003, in no manner, was/is competent or otherwise, he, under circumstances of the case, can be allowed to claim any benefit on the basis of an Application filed by the 'original grantee', [late] Mrs. Sugrabai wife of Yousufali Sadik for granting of a 'Commercial Lease' in her favour. h. that according to law, neither any proceedings can be initiated and/or continued in the name of 'dead person' or a sole dead person viz. Sugrabai, otherwise, can be replaced by way of filing an Application under Order I, Rule 10, C.P.C. [C.M.A. No.12458 of 2009], in a 'disposed of Petition, as has been done, by the so-called General Attorney of Mst. Sugrabai wife of Yousufali Sadik, in the case in hand i.e. by way of playing 'fraud' and 'mis representation' upon this Court. Even, in the Application under Order I, Rule 10, C.P.C. [C.M.A. No.12458 of 2009], the factum of death of Mrs. Sugrabai wife of Yousufali Sadik was concealed/not disclosed.
3. In reply to the Respondents' Application under section 12(2), C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], the new Petitioner viz. Ghulam Nabi Qureshi [hereinafter referred to as new Petitioner], who as per original title of the Memo of Petition [In the short MoP], had claimed himself, as a General Attorney of a dead Petitioner viz. Mrs. Sugrabai wife of Yousufali Sadik, who, as per record, passed away on 04.07.2002 i.e. much before filing the instant Petition on 31.10.2003, did file a detailed 'counter affidavit' on 06.12.2013, wherein, 'averments', adverse to the Petitioner's stand were denied. The gist of 'objections' raised by the new Petitioner, Ghulam Nabi Qureshi son of Muhammad Ibrahim, 'inter alia' are as follows:-
[i] that all the 'pleadings', applications, 'affidavits', 'documents' etc. filed 'during course' of the present petition, be treated as an 'integral part' of Petitioner's counter-affidavit'. As far as, the Application under section 12(2), C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], is concerned, per petitioner's stand, it has been filed with a 'mala fide intention', as Respondents/Applicants herein, are not only in a drill to delay the compliance of orders already passed in the instant petition but also intend to avoid the initiation of contempt proceedings vis-a-vis 'non-compliance' of various order passed in the instant Petition against the Respondents/Applicants herein, for which purpose, an Application under Articles 204 and 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with sections 3, 4, 5 of Contempt of Court Act, 1976 read with section 151, C.P.C. [C.M.A. No.14112 of 2011], has already been filed on 19.09.2011 in the instant Constitution Petition No.1372 of 2003 [Sugrabai wife of Yousufali Sadik v. Government of Pakistan through Secretary, Ministry of Defence, Central Secretariat and 2 others].
(ii) Per Petitioner's version, the Application under section 12(2), C.P.C. read with section 151, C.P.C., bearing C.M.A. No.24046 of 2013, besides, being not maintainable under the law, is hit by the 'principles of Res judicata'; 'estoppel' and 'laches' etc. Further, the Application under section 12(2), C.P.C. read with section 151, C.P.C., is also bad in law, as it lacks the exact/'complete material facts', 'details' of proceedings and reference to/mentioning of various orders, passed by this Court in the Constitution Petition in hand. According to Petitioner's version, since, the aforesaid factors have been concealed, by the Respondents/Applicants herein, that is to say, 'deliberately', as such, the Application under section 12(2), C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], besides, being not falling within the 'ambit' of section 12(2), C.P.C., is liable to be dismissed, with cost.
(iii) Moreover, the Respondents/Applicants herein, with an aim/intention to mislead this Honourable Court, have not only concealed the material facts, proceedings, pleadings and orders passed by this Court in the instant Constitution Petition but 'apart from the above', the Respondents/Applicants herein, have approached this Hon'ble Court with unclean hands. The Respondents/Applicants thus are not entitled for any relief, whatsoever. Rather, the Application under section 12(2), C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], under the foregoing facts and circumstances of the case, is liable to be dismissed straight away with cost.
4. Further, while, narrating the facts as given, in para 6[i] to [xiiv] of the 'counter affidavit filed by the new Petitioner [as per 'Amended Title' filed on 29.04.2011], the new Petitioner also claims himself, the 'sole' and 'exclusive' owner of the 'subject property' that is to say, since, 1979. Per Petitioner's version, he did represent the previous owner viz. Mrs. Sugrabai wife of Yousufali Sadik [the original Petitioner herein], as claimed competently, at all foras and Courts including this 'Constitution Petition', 'FRAs', 'Rent Petitions', 'Suits' etc. right from the year, 1996. The new Petitioner, thus is running from pillar to post vis-a-vis the implementation of his rights. The Respondents/Applicants herein, on the contrary, did exercise all its' possible tactics to avoid the 'implementation' of Order[s] including 'consent order[s]' , in its' 'letter' and 'spirit', passed by this Hon'ble Court in the instant Constitution Petition No.D-1372 of 2003.
5. Per Petitioner's stand, Respondent No.2/MEO, in the case in hand, did allow/agree, the 'commercialization' of the 'subject property' @ the rate prevalent at the time when, for such purpose, an application was made in the year, 1996. The Respondent No.2/MEO, despite, Petitioner's efforts, nonetheless, avoided the grant of lease for commercial purpose, of the 'subject property' bearing Bungalow No.112 [Old No.6], Depot Lines, Karachi, measuring 0.69 acres or thereabout. The 'subject property', it is needless to say, had already been mutated in the name of the new Petitioner, Ghulam Nabi Qureshi son of Muhammad Ibrahim. The refusal on the part of Respondent No.2/MEO, for 'commercialization' of the 'subject property' despite mutation of the 'subject property' in the name of new Petitioner, is nothing but an act of harassing, which per Petitioner's stand, is aimed at to extact 'undue payments'/money from the new Petitioner viz. Ghulam Nabi Qureshi son of Muhammad Ibrahim. Even, in the 'counter affidavit', direction against Respondent No.2/MEO herein, has been sought for 'implementation' of the 'orders'/'consent orders', passed by Division Bench of this Court in the Petition in hand, otherwise, the Petitioner's agony will never come to an end.
6. According to Petitioner's stand, the Petitioner, even in his capacity, as a 'General Attorney' of deceased-lady viz. Mrs. Sugrabai wife of Yousufali Sadik [grantee], did protect her rights bonafidely. Regarding 'demise' of Mrs. Sugrabai, on 04.07.2002, per General Attorney's version, he immediately approached the sons of Mst. Sugrabai and obtained two [2] Special 'Power of Attorneys' sometime in April, 2007 from [1]. Mr. Fazal Yousuf Sadik and [ii]. Mr. Aziz Sadik vis-a-vis filing of a Suit No.554 of 2007 for specific performance [Mr. Ghulam Nabi Qureshi v. Mr. Fazal Yousuf Sadik [2]. Mr. Aziz Sadik [3]. Fakhruddin Sadik [4]. Fatima Sadik and [5]. Ms. Fahmed Sadik, who, as stated, are all legal heirs [i.e. all sons and daughters] of [late] Yousf Ali Sadik and [late] Sugrabai Sadik], for the purpose of filing suit No.554 of 2007 [Ghulam Nabi Qureshi v. Fazal Yousuf Sadik and 4 others]. The prayer sought in the aforesaid Suit No.554 of 2007 filed on 09.07.2007, FOR SPECIFIC PERFORMANCE OF SALE AGREEMENT DATED 04.04.1979, reads as follows:
A] Direct the defendants to specifically perform sale agreement dated 04.04.1979 by transferring the said property to the Plaintiff/his nominee or to appoint Nazir of this Honourable Court to execute Sale Deed in favour of Plaintiff before the concerned Registrar and do all incidentals thereto. [Emphasis added'.
B]. Cost of the suit and other reliefs as deemed necessary during course of proceedings are also humbly solicited.
7. Later-on, parties to the aforesaid Suit No.554 of 2007, filed an Application under Order XXIII, Rule 3, C.P.C. with a prayer for passing a 'COMPROMISE DECREE' in the following terms:-
1. Plaintiff shall pay a sum of Rs.500,000/- through crossed cheque No. CDC 3592705 dated 12.11.2007 which shall be handed over to the Defendants' attorney at the time of hearing of this compromise application in Court.
2. Plaintiff shall produce and file in Court, at the time of hearing of this application, a List of all documents pertaining to the subject suit.
3. The defendants themselves or through their attorney to execute registered Sale Deed to complete the sale transaction before the concerned authority within 30 days time. In case of failure Nazir shall be appointed to complete the sale transaction and execute registered sale deed in favour of the plaintiff on behalf of the defendants.
4. Parties shall have no claim whatsoever against each other in respect of the suit property and fully cooperate with each other for transfer of the suit property.
5. In case, for whatever reasons, the suit property is not transferred in favour of Plaintiff the Defendants shall return back the aforementioned amount received from the Plaintiff.
6. Parties shall bear their own costs.
8. In the aforesaid Suit No.554 of 2007 [Ghulam Nabi Qureshi v. Fazal Yousuf Sadik and 4 others], filed on 09.07.2007, for SPECIFIC PERFORMANCE OF SALE AGREEMENT DATED 04.04.1979, a 'CONSENT DECREE', was passed vide Order dated 12.11.2007. For ready reference Order dated 12.11.2007, is reproduced herein-below:-
. . .
12.11.2007
ORDER
The plaintiff is present in person. The attorney of the defendants also present. They are identified by their respective counsel. The contents of this application were read over to the plaintiff and attorney of the defendants, who admit the same to be true and correct. The suit of the plaintiff is decreed as compromised with no order as to cost in view of terms and conditions mentioned in the compromise application." [Emphasis added].
[Muhammad Salim Larik]
VTH RENT CONTROLLER,
KARACHI [SOUTH]
. . .
9. The Respondents/Applicants herein, as urged, by new Petitioner viz. Ghulam Nabi Qureshi son of Muhammad Ibrahim, however, failed to establish that new Petitioner/General Attorney of Mrs. Sugrabai wife of Yousufali Sadik, was ever aware about the death of Mst. Sugrabai, who un disputedly, died on 04.07.2002 i.e. before the date of filing of this Constitution Petition, on 31.10.2003. The present Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], filed by Respondents, per new Petitioner's version, is an attempt of delaying tactics. Moreover, the Application under section 12[2], C.P.C. read with section 151, C.P.C., as 'framed' and 'filed' by the Respondents/Applicants is not only 'mis-conceived' mis leading' but also not maintainable under law. Further, the Application under section 12[2], C.P.C. read with section 151, C.P.C., besides, suffering from 'ulterior motives' is based on 'mala fide intention'. The Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], as such, is not maintainable rather to say, the same is liable to be rejected with costs. Further, in the 'Counter Affidavit', of new Petitioner, direction has been sought against Respondent No.2/MEO, for 'implementation' of orders passed in the instant Constitution Petition No.D-1372 of 2003. In case of Respondents/Applicants failure, contempt proceeding on C.M.A. No.14112/2011, needs to be initiated against the alleged Contemnors for defiance of orders passed in the Constitution Petition in hand.
10. On 24.11.2016, when the Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], filed by Respondents, came-up before the Court, then the same, was dismissed for 'non-prosecution' despite the fact that then, the standing counsel, Mr. Muhammad Javed K.K. along with Maqbool Ahmed SDO, MEO Karachi, was in attendance. Being relevant order dated 24.11.2016, is reproduced herein below:-
"1. For hearing of C.M.A. No.24046/2013 [Under section 12[2], C.P.C.]
2. for hearing of C.M.A. No.14112/2011 [contempt]
24.11.2016
Mr. Sabir Hussain, advocate holds brief for Mr. M Hassan Akbar, advocate for the petitioner.
Mr. Muhammad Javed K.K. Standing Counsel along with Maqbool Ahmed, SDO, MEO, Karachi.
1. This application under section 12[2], C.P.C. has been filed on behalf of the respondents. On 30.09.2016, the Deputy Military Estate Officer Karachi requested for time to seek instructions with regard to this application as well as the undertakings given by MEO before this Court for implementation of the orders passed herein. It was observed on that date that no one has been attending this matter on behalf of MEO since long and accordingly last and final opportunity was granted to MEO. On the next date, the MEO was present in person and further time was granted at the request of learned DAG as a matter of sheer indulgence. Today request has once again been made by the Standing Counsel on the ground that MEO intends to place on record certain documents. Record shows that this application is pending since August 2013, but hearing thereof could not take place in view of the requests for adjournment made on behalf of the respondents for one reason or the other. Record further reveals that on 07.05.2015, this application was dismissed for non-prosecution, however, it was restored on 19.2.2016 by this Court in the interest of justice. In view of the above, especially the several opportunities already granted to MEO, the request made today is absolutely unjustified. The application is accordingly dismissed for non-prosecution.
2. Mr. Sabir Hussain, advocate holding brief for Mr. M Hassan Akbar, advocate for the petitioner, requests for adjournment on the ground that the latter is out of country. At his request, the matter is adjourned to a date in office."
11. Later on, upon filing of an Application under Order IX, Rule 9, C.P.C. read with section 151, C.P.C. [C.M.A. No.5768 of 2018], for Restoration of the Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], on 05.04.2018 when, the said 'Restoration Application' under Order IX, Rule 9, C.P.C. [C.M.A. No.5768 of 2018], came-up before the Hon'ble Division Bench of this Court on 05.04.2018, then, upon hearing, the Restoration Application [C.M.A. No.5768 of 2018], was Restored to its' 'original position', keeping in view the facts and circumstances of the case, in hand. The 'operative part' of order dated 05.04.2018, reads as follows:-
"We have heard the learned counsel for the parties and perused the material available on record, which goes to show that the instant petition was filed on 31.10.2003 and was allowed on 11.5.2004. Learned counsel for the petitioner during his arguments candidly conceded that the instant petition was filed after more than one year of the death of petitioner Mst. Sughra Bai. He has also admitted that neither this fact was incorporated in the memo of petition nor brought to the notice of this Court at the time of passing of the order dated 11.5.2004. However, he argued that when this fact came to the knowledge of the respondent they approached this court by filing application under section 12(2), C.P.C. but failed to pursue the said application which was dismissed for non-prosecution. He also vehemently urged that not only this but the respondent filed various applications one after the other for restoration of the application under section 12(2), C.P.C., which were also dismissed for non-prosecution. Indeed, the contentions raised by the learned counsel for the petitioner and the factual position as narrated in the counter affidavit to the listed application appears to be correct, but simultaneously it is the foremost duty of the Court to look into the matter in its true prospective and dispense justice. It may be noted that the fact of the death of Mst. Sughra Bai prior to filing of the instant petition was also noticed by the Hon'ble Supreme Court of Pakistan while disposing of the Civil Petition No.95-K of 2012 on 26.2.2013. It is the settled principle of law that the Courts always lean in favour of adjudication on merit rather than stifling proceedings on technicality.
In these circumstances, we are of the view that justice demand that a fair chance be afforded to both the parties to prove their case on merits. Therefore, we allow the listed application, recall/set-aside the orders passed on the applications under Order X, Rule 9, C.P.C. and restore the application under section 12(2), C.P.C. to its original position. [Emphasis added]
Adjourned to 26.04.2018 for hearing of application under section 12(2), C.P.C."
12. Later on, when the Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2019], came-up before us then, we heard Mr. Kashif Paracha, learned DAG and Khalid Mehmood Siddiqui, learned counsel for the new Petitioner during 28.02.2019 to 22.04.2019 and also perused the available record before us minutely. Mr. Kashif Paracha, learned DAG while, arguing the Application under section 12[2], C.P.C. read with section 151, C.P.C., filed by the Respondents/Applicants herein, submitted that the Military Estate Officer, Karachi Circle [MEO], Karachi, who is Respondent No.2 herein, besides being a competent authorized officer of Respondents/Applicants herein, is fully conversant with the facts of the case and the Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013] deserves to be granted as the instant Petition has been filed by a so-called General Attorney on behalf of dead person, viz. Mrs. Sugrabai wife of Yousufali Sadik.
13. The learned DAG, while, advancing his arguments submitted that the Petition in hand, was filed on 31.10.2003, by Mr. Ghulam Nabi Qureshi son of Muhammad Ibrahim in his capacity as a 'GENERAL ATTORNEY' of Mrs. Sugrabai wife of Yousufali Sadik. In the Memo of Petitioner [in short MoP] 'inter alia' a 'prayer' was sought to the effect that the 'impugned letter dated 28.06.2003' [Annexure 'P/VII' to the MoP], be declared as 'illegal', 'mala fide', 'arbitrary', 'without jurisdiction' and 'contrary to the Petitioner's rights', as it was issued in clear violation of law of natural justice etc. Being relevant, the prayers sought on behalf of a dead person viz. Mrs. Sugrabai wife of Yousufali Sadik through her so-called General Attorney, Ghulam Nabi Qureshi son of Muhammad Ibrahim in the 'MoP' are reproduced herein-below:- a. Declare that the impugned letter dated 28 June 2003 is illegal, arbitrary, mala fide, without jurisdiction, contrary to the petitioners rights of natural justice and fundamental rights guaranteed under the Constitution. b. Declare that the rates of premium communicated by the Respondents through the impugned letter to the petitioner are exorbitant, arbitrary illegal and void. c. Direct the Respondents to grant to the Petitioner commercial lease in respect of subject property No.112 Depot Lines Karachi. d. Direct the Respondents to fix market rates in terms of Old Grant Policy dated 18 July 1996 and as stipulated within the period provided therein. [Emphasis added] e. Declare that the sanction granted to the Petitioner by the Respondents for conversion of property No.112 Depot Lines Karachi remains valid and subsisting. f. Restrain the Respondents, persons, acting under or through them from resuming the plot and/or re-classifying certain portions thereof and/or taking any adverse or coercive action against the petitions subject property. g. Declare that reclassification of sq.yds of petitioner's plot from B4 class to C is illegal, arbitrary and void. h. Such better and particular relief/s as this Honourable Court deems in the circumstances."
14. Learned DAG, next contended that the so-called 'GENERAL ATTORNEY' of Mrs. Sugrabai wife of Yousufali Sadik namely Ghulam Nabi Qureshi son of Muhammad Ibrahim [New Petitioner as per 'amended title filed on 29.04.2011] in fact, concealed the factum of death of Mrs. Sugrabai wife of Yousufali Sadik from this Court that is to say when, the instant petition was filed on 31.10.2003, on behalf of dead person, as the principal, Mrs. Sugrabai wife of Yousufali Sadik, had already died on 04.07.2002 i.e. much before the 'presentation' of the 'instant petition' on 31.10.2003. Further, the so-called 'GENERAL ATTORNEY' [now new Petitioner] despite, having knowledge continued with this Petition till when an 'AMENDED TITLE' was filed on 21.04.2011. The very defect, existing at the time of presentation of the instant Constitution Petition, on 31.10.2003, anyhow could not be cured/removed, by way of filing an APPLICATION UNDER ORDER I, RULE 10, C.P.C. IN THE YEAR, 2009 [C.M.A. No.12458 of 2009]. The new Petitioner, Ghulam Nabi Qureshi son of Muhammad Ibrahim, in the case in hand, under law, could not replace the 'original Petitioner' viz. Mrs. Sugrabai, as this Constitution Petition has been filed on behalf of a dead person. Further, the Application under Order I, Rule 10, C.P.C. [C.M.A. No.12458 of 2009], allowed in the year, 2011, i.e. on 21.04.2011 is on different grounds. In the aforesaid Application [C.M.A. No.12458 of 2009], even the death of Mst. Sugrabai on 04.07.2002, has not been disclosed. For ready reference, the 'relevant part' of order dated 21.04.2011, is reproduced herein-below:-
Learned counsel submits that since in pursuance of the court's Order dated 12.9.2006 the sale deed in respect of the subject property has been executed in favour of Ghulam Nabi Qureshi, the petitioners may thus be replaced by Ghulam Nabi Qureshi. The application is granted. The petitioner shall file amended title of plaint with advance copy to the learned DAG within two days from today. [Emphasis added]
15. Per learned DAG, in a 'disposed of petition', no Application under Order I, Rule 10, C.P.C. [M.A. No.12458/2009], lies. The new Petitioner, Ghulam Nabi Qureshi, earlier claiming himself, as a 'General Attorney' of Mrs. Sugrabai, somehow, substituted/replaced himself at the place of a dead person that is to say by way of 'rnis-representation'. According to learned DAG, all other orders obtained by Ghulam Nabi Qureshi son of Muhammad Ibrahim are not only mala fide, nullity in law but also void ab initio. The new Petitioner viz. Ghulam Nabi Qureshi son of Muhammad Ibrahim despite filing of Suit No.554 of 2007 [Ghulam Nabi Qureshi v. Fazal Yousuf Sadik and 4 others], against the 'legal heirs' of deceased lady, Mrs. Sugrabai wife of Yousufali Sadik, however, remained continued with this Petition filed on behalf of a dead person and also obtained several orders including order dated 11.05.2004, whereby, the petition in hand was 'allowed' disposed of by way of 'fraud' and 'mis-representation'. For ready reference, the 'operative part' of Order dated 11.05.2004 i.e. 'para-5' reads as follows:-
"5. In the first instance, it needs to be remembered that a mala fide order is a fraud on the law and must be treated as void ab initio. Unfortunately when such orders are passed by public functionaries without they only lead to crises of confidence and tends to bring into disrespect the solemn public office that they are holding. In any event what is important to consider is that the Evaluation Committee was required to determine the market price within 6 months of the policy and therefore, even if for some reason such evaluation could not be undertaken, in a subsequent evaluation at least the question as to what could be the fair market price at the relevant time needs to be considered. We would therefore, allow this petition, set aside the impugned notice and direct that a fresh evaluation be made to determine the price operating within 6 months from the announcement of the policy of the petitioner it required to make payment according to the rule."
16. The Respondents/Applicants herein, in opposition of the Application under Order I, Rule 10, C.P.C. [C.M.A. No.12458/2009], filed a detailed 'counter affidavit' wherein, not only the 'maintainability' of the Application [C.M.A. No.12458/2009], was seriously questioned/disputed but also a prayer for 'dismissal' of the said Application under Order I, Rule 10, C.P.C. [C.M.A. No.12458 of 2009], filed by the new Petitioner, Ghulam Nabi Qureshi son of Muhammad Ibrahim, was also sought. Anyhow, such objections/pleas raised by the Respondents/Applicants gone un-noticed.
17. Learned DAG, while, continuing his arguments submitted that on 21.04.2011, without hearing the Law Officer of the Federation of Pakistan, the said C.M.A. No.12458/2009, was allowed, though inter alia' 'Preliminary Legal Objections' of Respondents regarding maintainability of Application under Order I, Rule 10, C.P.C. [C.M.A. No.12458 of 2009], were available on record. The Respondent's case, as pleaded, is/was to the effect that the instant Constitution Petition, filed by the 'so-called' General Attorney on 31.10.2003, on behalf of 'dead person', Mrs. Sugrabai wife of Yousufali Sadik [who passed away on 04.07.2002], is not only a nullity in law but also the same is without any lawful authority. Further, such 'inherent defect' existing/existed even at the very initial stage of the instant Constitution Petition, in no manner, could not be 'cured' under Order I, Rule 10, C.P.C. [C.M.A. No.12458 of 2009], because, a dead Petitioner cannot be replaced by a new Petitioner as has been done in the case in hand. Moreover, all orders passed in the instant petition including orders dated 23.02.2012 and 11.05.2004, are void ab initio, as all these orders have been obtained by way of playing of 'fraud' and 'mis-representation' upon the Court. Further, under laws, a suit/proceeding filed by or against a dead person, is a nullity in law and in such like situation, the court has no jurisdiction to grant the Application under Order I, Rule 10, C.P.C. or Order XXII Rules 3 and 4, C.P.C.
18. On the aforesaid aspect of the matter, reliance can be placed on the case laws: [i]. Municipal Corporation of Karachi v. Baradio Jumoo Mughal [AIR (33) 1946 Sindh 20], [ii]. Cuttack Municipality v. Shyamsundar [AIR 1977 Orissa 137], [iii]. Bai Pani Vankar v. Mandabai Galabai Patel [AIR 1953 Bombay 356 Vol. 40 C.N. 112], [iv]. Sudhir Kumar De v. Amritalal Seal' [ILR (1946) CAL 611 (G)]. Relevant 'excerpts' from the case-laws are reproduced herein-below:-
[i] AIR (33) 1946 SINDH 20:
. . .
"It is necessary to lay stress on the words "any right.... is alleged to exist" in both the rules. Both Rr. 1 and 3, in my opinion, contemplate living plaintiffs and defendants. When a person dies, the right to sue survives if it is capable of survival to his legal representatives and exists in them and not in the dead man. Rules 1 and 3 of O. 1, Civil P.C. no doubt apply to a case where the right has come into existence by way of survival, but the plaintiff or the defendant, as the case may be, must then be dead person's legal representatives at the time of the presentation of the plaint and not the dead person. The maxim actio personalis moritur cum persona has exceptions, the procedure in respect of which is provided by O. XXII, Civil P.C., which says that where a right to sue survives in favour or against a dead person that right can be enforced by or against the legal representatives of the dead person. If a person dies before the suit is instituted against him, the right to sue or be sued is not an existing right but a right which has survived, and persons competent to sue or be sued are the legal representatives in whom or against whom alone the right to sue exists under the provisions of R. 1 or R. 3 of O. I, Civil P.C. When, therefore, a suit is filed against a dead man, it is a nullity. Neither Order I, nor O. XXII, Civil P.C. applies to enable a person to sue a dead man. Order I, Civil P.C., deals with parties to a suit; it does not and cannot contemplate a dead person as a party to a suit. If O. I does not permit the filing of a suit against a dead person, as I hold it does not, it follows that O. I, R. 10, Civil P. C., cannot apply. Order I, Rule 10, Civil P.C., begins with the words "Where a suit has been instituted in the name of the wrong person as plaintiff...." "When a suit is filed against a dead man, it cannot be said that it has been filed against a wrong person. I am aware of the fact that some High Courts in India have treated a dead person as a wrong person, but with respect to the learned Judges who have so treated a dead person, I am unable to adopt that view. There is a clear distinction between a right which exists and a right which survives. I have no difficulty in coming to the conclusion that where a suit has been filed against a dead man, the Court is powerless to act under any of the provisions of the Civil Procedure Code, in order to dispose of it according to law, because no rights exist against a dead person, but if they survive, they come to exist in the legal representatives who alone can sue or be sued... The decision does not take adequate notice of the words used in O. I, Rr. 1 and 3, Civil P.C. The whole of O. I, Civil P.C. applies to existing rights and not rights which have survived. The surviving rights come to exist in the legal representatives who alone can sue or be sued. Upon this interpretation of O. I, Civil P.C. I feel justified in not accepting the view taken by Rupchand A.J. C. Rupchand A.J. C. appeared to think that the exercise of jurisdiction under O. I, R. 10, Civil P.C. in a suit filed against a dead man depended upon whether there was bona fides or mala fides. In my opinion, the question of bona fides or mala fides does not arise if O. I, R. 10, Civil P.C. has no application to the so-called suits filed against dead persons. The judgment of (Mulla J. in (24) 11 AIR 1924 Bom. 109: 85 I. C. 464, Rampartab Brijmohandas v. Gavrisbanker Kashiram, besides being directly in point, is also very instructive. Mulla J. held that the suit having been filed against a dead man was a nullity from its inception. He observed: [Underlining is ours]
'The suit being a nullity, the writ of summons issued in the suit, by whomsoever accepted, is also a nullity. Similarly any order made in the suit allowing amendment of the plaint by substituting the legal representative of the deceased as defendant and allowing the suit to proceed against him is also a nullity. It is immaterial that the suit was brought bona fide and in ignorance of the death of such person. ii]. AIR 1977 ORISSA 137:
7. On the authorities cited above. It is clear that a suit filed against a dead person is a nullity and that no substitution can be made in place of the original defendant who was dead on the date of the institution of the suit. The learned S.C.C. Judge was, therefore, justified in rejecting the petitions for substitution filed in both the suits. [Emphasis added]
[iii]. AIR 1953 BOMBAY 356 [VOL. 40 C.N.112]:
(2).....An effective order under Order I, Rule 10, can only be made provided there is a suit or an appeal before the Court, but if the suit or the appeal is a nullity, then any order made in that suit or appeal is equally a nullity, and the learned Judge rightly relied on the decision of Mr. Justice Mulla in -'Rampratab v. Gourishankar, AIR 1924 Bom 109 (A). In that case the learned Judge was dealing with a suit filed by the plaintiff against the firm of the defendant's father. The defendant's father was the sole owner of the firm and he had died before the institution of the suit, and Mr. Justice Mulla held that the suit instituted was not merely against a wrong person but against no person at all and he points out at p. 111 that any order made in the suit allowing amendment of the plaint by substituting the legal representative of the deceased as defendant and allowing the suit to proceed against him is also a nullity.
4. ...in my opinion there is a fundamental difference between a suit filed in the name of a dead person and a suit filed in the name of a wrong person. When a suit is filed in the name of a wrong person, there is a person alive who files the suit. He happens to be not the proper person by reason of mis-description or some other reason and the real person is brought on the record in substitution. [Underlining is ours]
[iv]. ILR (1946) Cal 611 (G),
...that the provisions as to the substitution of the heirs of a deceased defendant in a suit, being applicable only to a case where the defendant was alive at the date of the institution of the suit, a Court has no jurisdiction to substitute the heirs of a defendant who had died previous to the institution of the suit and to decree the suit against the heirs of the deceased defendant. [Emphasis added]
19. Mr. Kashif Paracha, learned DAG, next contended that any right, if, vested in the 'General Attorney', as claimed in the case in hand, ceases to exist, as soon as, the principal dies. The 'General Attorney', Ghulam Nabi Qureshi son of Muhammad Ibrahim, in the case in hand, neither claims any right nor otherwise, is competent to file the instant Constitution Petition on behalf of his principal, who admittedly passed away on 04.07.2002, i.e. much prior to the filing of the instant Constitution Petition on 31.10.2003. Mr. Kashif Paracha on the aforesaid aspect of the matter placed reliance on the cases [i]. Mt. Radabai v. Mangia and others [AIR 1934 Nagpur 274] and [ii]. Narendra Bahadur Tandon v. Shanker Lal [AIR 1980 SC 575]. Relevant portions therefrom are reproduced herein-below:-
[i]. AIR 1934 NAGPUR 274:
"It is next argued that in view of sections 208 and 209, Contract Act the agent's authority did not terminate until the fact of his principal's death became known to him and that even if it had become known to him, he was bound to take all reasonable steps for the protection and preservation of the interests entrusted to him. Any argument adduced from the law of Contract is inapplicable to the present case, and the short answer is that there is not and can be no contract between a party desiring to prosecute an appeal and the Court before whom such an appeal is to be preferred. Even if the conditions laid down in the Contract Act were to be considered applicable, the argument would itself be nullified by the condition in Order III, Rule 4(2), Civil P. C, that every appointment of a pleader ceases to have force when the client dies. If then the provisions of the Civil Procedure Code are to be interpreted in terms of the Contract Act, there exists an express provision excepting the authority of pleaders from the terms of sections 208 and 209, Civil P.C....Under Order III, Rule 4(2), the appointment of a pleader only remains in force during the lifetime of a client. This rule is entirely independent of the question of the power of the agent to appoint a pleader on the termination of the agent's power. As soon as a client dies, a pleader has no standing in respect of that client and his power is terminated automatically. Not only therefore would an appeal preferred by a pleader on behalf of such a client be incompetent, but the memorandum of appeal itself would be non-existent. The document presented is not merely one which asks for something which cannot be fulfilled, but is a document which the learned Advocate presenting it had no qualification to present at all. The position is the same as if an attempt were made to present a memorandum of appeal by a total stranger to the party aggrieved by the decision of the Court below. As there is therefore nothing before the Court on which any order of the Court may fasten, it is impossible for the Court to exercise its power to amend any defect or error in any proceeding before it and section 153, Civil P. C, will have no applicability. [Underlining is ours].
The only remedy open to Dhanraj therefore is to file a memorandum of appeal on his own behalf and if he does so file it, the question of the condonation of delay in making the presentation will have to be considered before the hearing of the appeal can proceed. The question therefore relating to the delay on the part of Dhanraj and the interposition and subsequent withdrawal of a body of alleged trustees, a point which has been urged by the respondents in respect of their contention of the mala fides of the application, will be relegated to such time as a memorandum of appeal is presented on behalf of Dhanraj himself."
[ii]. AIR 1980 SC 575:
"After the company is dissolved the liquidator cannot thereafter claim to represent the Company and execute a registered deed of sale. Once the Company is dissolved it ceases to exist and the liquidator cannot represent a non-existing Company. If the liquidator is to discharge any duty or perform any function on behalf of the dissolved Company he should have express statutory authority. The Companies Act, 1913 contained no provision enabling the liquidator to do any act on behalf of dissolved Company. Section 209-H of the Companies Act 1913 enjoyed the liquidator as soon as the affairs of the Company were wound up to make up an account of the winding up and to call a general meeting of the Company and a meeting of the creditors for the purpose of laying the accounts before the meetings. The only duty cast upon the liquidator thereafter was that under section 244-B the liquidator should on the dissolution of the Company pay into the Reserve Bank of India, to the credit of the Central Govt. in an account called the Companies Liquidation Account any money representing unclaimed dividend or any undistributed assets in his hands on the day of dissolution. No other duty was stipulated to be performed by the liquidator under the provision of the Companies Act, 1913, after the dissolution of the Company. AIR 1967 All 405 affirmed." [Underlining is ours].
20. Per Mr. Kashif Paracha, Respondents/Applicants, feeling themselves 'aggrieved' by and 'dis-satisfied' with Order dated 23.02.2012, opted to prefer C.P. No.95-K of 2012, before the Hon'ble Supreme Court of Pakistan, with a prayer for setting aside the order dated 23.02.2012. The said Civil Petition No.95-K of 2012, later-on, i.e. on 26.02.2013, was not pressed, as then, Respondents/Applicants herein wanted to avail an appropriate remedy by way of filing an Application under section 12[2], C.P.C.. For ready reference, order dated 26.02.2013, passed by Hon'ble Supreme Court of Pakistan, is reproduced herein-below:-
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT: MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE MUHAMMAD ATHER SAEED
CIVIL PETITION NO.95-K OF 2012
(On appeal from the judgment dated 23.02.2012 of The High Court of Sindh, Karachi passed in C.P. No. D-1372 of 2003)
Government of Pakistan and others Petitioners
Versus
Ghulam Nabi Qureshi Respondent
For the petitioners Mr. Khalid Javed, ASC Mr. K.A. Wahab, AOR
For the respondents Mr. Hassan Akber, ASC
Date of hearing 26.02.2013
ORDER
Khilii Arif Hussain, J.---On behalf of Mst. Sugrabai petition was filed before the High Court of Sindh, Karachi on 31.10.2003, whereas in fact the said lady had expired much before the date of filing of the said petition i.e. on 04.07.2002. The respondent has concealed this fact and obtained order from the learned High Court on 14.05.2004. After disposal of the petition, an application under Order I, Rule 10, C.P.C. was filed wherein the respondent requested to dispose of the petition and substitute him as petitioner, the said application was granted and after grant of this application, the respondent filed an application which has been decided in the order impugned. [Emphasis added].
After arguing the matter at some length, learned counsel for the petitioner does not press the listed petition as he will avail remedy under the law by filing an application under section 12(2), C.P.C. [Emphasis added]
The petition is accordingly dismissed as not pressed.
Sd/- Khilji Arif Hussain, J.
Sd/- Muhammad Ather Saeed, J.
21. Apart from the above, Mr. Kashif Paracha, learned DAG, made reference to a letter of MEO, Karachi Circle, Karachi No.K-7/112/23 dated 19.06.2003, wherein the new Petitioner [who earlier had claimed himself as a General Attorney of dead person], was asked to inform the MEO, as to whether, he is a purchaser or otherwise, he merely represents the GRANTEE viz. Mrs. Sugrabai wife of Yousufali Sadik of the said immovable property i.e. Plot of land with Bungalow No.112, Standing thereon [Old No.6], measuring 0.69 acres ['subject property']. The letter dated 19.06.2003, being relevant is reproduced herein-below:-
'REGISTERED'
No. K-7/112/23
Military Estates Office, Karachi Circle,
252, Sarwar Shaheed Road, Karachi Cantt.
Dated the 19th June, 2003.
To Mr. Ghulam Nabi Qureshi,
[Attorney]
Bungalow No.112, Depot Lines,
Rizvi Shaheed Road, Saddar, KARACHI
SUBJECT: GRANT OF COMMERCIAL LEASE IN SCHEDULE IX-C OF THE CLA RULES, 1937 IN RESPECT OF PROPERTY NO.112 DEPOT LINES, KARACHI CANTONMENT UNDER THE OLD GRAND POLICY OF 1996.
Reference your application dated 28.10.1996.
2. You are requested to please intimate if you have purchased the aforesaid old grant bungalow or you merely represent the grantee of the said bungalow. In case of purchase please forward an attested copy of transfer deed to proceed further.
3. You are also requested to please visit this office with your principal i.e. grantee on 24th June, 2003 with relevant papers of sale/purchase, if any.
Sd/-
MILITARY ESTATES OFFICER
KARACHI CIRCLE KARACHI
Copy to :-
1. Headquarters 5 Corps, Karachi Cantt.
2. Station Headquarters, Karachi Cantt.
3. The C.E.O. Karachi Cantonment
22. Pursuant to the aforesaid letter, two [2] other letters both dated 24.06.2003 were sent to and received by MEO from the new Petitioner viz. Ghulam Nabi Qureshi son of Muhammad Ibrahim. In the 1st letter a request for grant of time was made while, in the 2nd letter, the General Attorney/new Petitioner, apprised the MEO, about his 'fresh address'. Needless to say, in the 'General Power of Attorney' dated 4th day of April, 1979 [at page 77 of the Court file], Mrs. Sugrabai wife of Yousufali Sadik, has been shown as resident of F.T. 1/7, [P.S. Frere], Karachi. The new Petitioner/General Attorney, on the other hand has been shown, as resident of B-227/6, Gulshan-e-Iqbal, Karachi. The deceased principal lady viz. Mrs. Sugrabai wife of Yousufali Sadik and her so-called 'General Attorney'/new Petitioner, both as per Letter dated 24.06.2003, reproduced at 'b' here-under are residents of the same area. In view of this position, as well, the claim of lack of knowledge about death of Mrs. Sugrabai, is not believable. Both the aforesaid letters, for ready reference, are reproduced respectively, herein-below:- a. Dated 24.06.2003
The Military Estates Officer
Karachi Circle,
252, Sarwar Shaheed Road,
Karachi Cantt.
Karachi
SUBJECT: GRANT OF COMMERCIAL LEASE IN SCHEDULE IX-C OF THE CLA RULES, 1937 IN RESPECT OF BUNGALOW NO.112, DEPOT LINES KARACHI CANTONMENT UNDER THE OLD GRANT POLICY OF 1996
Dear sir,
Reference to your letter No.K-7/112/23 dated 19th June, 2003 has been received by me today afternoon at 4:00 PM.
It is requested to kindly grant me another date to appear. [Emphasis added]
Thanking you
Yours faithfully
Sd/-
(GHULAM NABI QURESHI)
Legally Constituted Attorney
F-53, Block-5, Park Lane,
Clifton, Karachi [Emphasis added] b. Dated 24.06.2003
The Military Estates Officer
Karachi Circle,
252, Sarwar Shaheed Road,
Karachi Cantt.
Karachi
SUBJECT: CORRESPONDING ADDRESS FOR 112, DEPOT LINES, KARACHI
Dear sir,
Kindly note that all correspondence/mails may kindly be sent to my following address:-
Address F-53, Block-5, Park Lane,
Clifton, Karachi
Thanking you [Emphasis added]
Yours faithfully
Sd/-
(GHULAM NABI QURESHI)
Legally Constituted Attorney
23. Per DAG, indeed, a letter dated 13.06.2005 [Available at Page 149 of the Court file], was issued, but only after receiving of the Govt. sanction vide Govt. of Pakistan, Ministry of Defence letter No.42/618/Lands/ML&C/03, dated 02.06.2005. Needless to say, much before in this regard through a 'Public Notice' in 'Daily JANG' dated 15.08.2004, the rates and the last date for 'completion of requisite formalities in accordance with 'LEASE CONVERSION POLICY', of 30.06.2005 were also notified. According to learned DAG, Bungalow No.112, measuring. 0.69 Acres or 3339.6 Sq.yds., Depot Lines, Karachi Cantt, was held by Mrs. Sugrabai wife of Yousufali Sadik i.e. on 'Old Grant Terms' which per MEO's office record, is for residential purpose. Moreover, according to MEO's version, the existing area, as per Field Book, is 3627.91 sq. yards, instead of 3339.6 Sq.yds, as shown and recorded in the GLR. The 'excess area' thus was to the extent of 288.31 Sq. yds.
24. The Respondent No.2/MEO, vide a letter No.K-07/112/44 dated 16.12.2006, written to Ghulam Nabi Qureshi son of Muhammad Ibrahim [who was then claiming himself as a 'General Attorney' of Mrs. Sugrabai wife of Yousufali Sadik], was asked to provide not only a copy of the 'General Power of Attorney' but also furnish an 'affidavit' to the effect that his principal viz. Mrs. Sugrabai wife of Yousufali Sadik is alive. The aforesaid letter No.K-07/112/44 dated 16.12.2006 reads as follows:-
REGISTERED
No. K- 7/112/II/44/
Military Estates Officers, Karachi Circle 252-B,
Sarwar Shaheed Road, Karachi Cantt
Dated the 16 December, 2006
To
Mr. Ghulam Nabi Qureshi
Attorney of Mst. Sughra bai
F-53, Block-5, Park Lane,
Clifton, Karachi
Subject: GRANT OF COMMERCIAL LEASE IN RESPECT OF BUNGALOW NO.112, DEPOT LINES SADDAR KARACHI CANTONMENT UDNER THE OLD GRANT POLICY OF 1996
Reference your application dated 09/1/2006
A copy of application dated Nil submitted by Mst. Sameera Riaz widow of Mr. Riaz Ahmed Vohra is forwarded herewith for your comments. You are required to furnish a notarized copy of General Power of Attorney under which you claimed to be the attorney of the grantee of subject property.
Please also furnish affidavit to the effect that the principal i.e. Mst. Sugrabai is alive of subject property and the attorney has not been revoked and is still subsisting. [Emphasis added)
With reference to your application dated October 31, 2006, it may please be noted that your case stands closed.
Sd/-
Military Estates Officer
Karachi Circle, Karachi
Tele:9202220
25. The aforesaid letter of MEO, nonetheless, was ignored and/or avoided by the so-called 'General Attorney', Ghulam Nabi Qureshi son of Muhammad Ibrahim [now the new Petitioner], that is to say 'with ulterior motives'. The new Petitioner/so-called 'General Attorney' of deceased lady viz. Mrs. Sugrabai wife of Yousufali Sadik, thus, continued with his 'fraud' and 'mis-representation' upon this Court. In this way, the 'so-called' 'General Attorney', time and again succeeded in obtaining various orders in a Constitution Petition filed on behalf of dead person, Mrs. Sugrabai wife of Yousufali Sadik [who passed away on 04.07.2002 i.e. much before filing of the instant Constitution Petition on 31.10.2003]. Mr. Kashif Paracha, learned DAG, next contended that in the Civil Procedure Code [Act of 1908], there is nothing to authorize the institution of a legal proceeding against a dead person. In this regard, reliance was placed on the cases: [i]. Veerappa Chetty v. Tindal Ponnan [(08) 31 Mad. 86], [ii]. Bejoy Chand v. Amula Charran [('14) 1 AIR 1914 Cal. 895] and [Iii]. Municipal Counsel Calicut v. Kunhipathumna [('33) 20 AIR 1933 Mad. 454]. The excerpts therefrom read as follows:-
[i] [08] 31 Mad. 86:
"There is nothing in the Code of Civil Procedure to authorise the institution of a suit against a deceased person and the Courts have no jurisdiction to allow the plaint in such a case to be amended by substituting the names of the representative of the deceased, even when the suit is instituted bona fide in ignorance of the death of the defendant.
[ii] ('14) 1 AIR 1914 Cal. 895:
"The provisions as to the substitution of the heirs of a deceased defendant as parties to suit in his place apply only to cases where the original defendant was alive at the date of the institution of the suit.
I would accordingly hold that where a suit is filed against a dead person, a Court has no jurisdiction to grant an application under O. I, R. 10, Civil P.C. or under O. XXII, Rr. 4 and 9, Civil P.C. or do any other act authorised by the Code of Civil Procedure. The result is that the preliminary objection is upheld and the suit is dismissed..." [Underlining is ours]
[iii]. ('33) 20 AIR 1933 Mad. 454:
"Where a plaint is filed against a person who is in fact dead at the time of presentation no application by way of amendment or bringing on record legal representatives can be validly made because the whole proceeding is void and has no effect whatever". [Underlining is ours].
26. According to learned DAG, the Government, no doubt, had extended its' policy for conversion of 'old grants' properties into 'regular leases' that is w.e.f. 01.07.2004 to 30.06.2005, but pursuant to MEO's office letter No.K-7/112/32, dated 05.10.2004, sent for procurement of Government's sanction. As soon as, the said 'sanction' was received vide Govt. of Pakistan, Ministry of Defence letter No.42/618/Lands/ML&C/03, dated 07.06.2005, then the same was onwardly conveyed to the 'Grantee' vide MEO's letter No.K-7/112/36, dated 13.06.2005. The amount of 'premium' was also mentioned/calculated therein, in accordance with D.C. rates fixed w.e.f. 30.06.2004, as provided by the Board of Revenue Sindh, in respect of area recorded in GLR. Only for 'excess area' measuring 288.31 sq. yards, the rates were fixed on the basis of 'market rate' that has been previously worked out by the 'Evaluation Committee' as per 'Old Grant' Policy of 1996. Further, according to Govt.'s sanction, the 'break-up' of total 'premium' of the total area i.e. 3627.91 Sq. Yards was worked out as under:- i. Premium calculated for recorded area based on the 50% of D.C. Rates which comes to Rs.3,750/- per sq. yard amounting to Rs.1,25,23,500/- ii. Premium for excess area calculated on the basis of full market rates previously worked out by Evaluation Committee in the vicinity of the area [Category A] @ Rs.80,000/- per Sq. Yard., amounting to Rs.2,30,64,800/- [i+ii=Rs.3,55,88,300/-]
27. Per learned DAG, as far as, the payment of 'premium' vis- -vis, 'excessive area' of 288.31 sq.yds @ Rs. 80,000/- per sq. yard, is concerned, its' option was, left to the 'grantee' of Bungalow No.112, either to pay the demanded amount at 'market rate' or otherwise, surrender the 'excess area' in favour of Govt. [Defence Dept.], as per 'Govt. policy'. As far as, the matter of 'extension in time' i.e. for a period of one year regarding Completion of the 'lease formalities' inter alia in respect of 'subject property', is concerned, according to the stand of learned DAG, MEO, was not competent to extend the 'time limit', because it was the domain of Govt. of Pakistan, Ministry of Defence.
28. Mr. Kashif Paracha, learned DAG, in furtherance of his arguments made reference to three [3] more letters i.e. [i]. Letter dated 05.12.1972 of Mrs. Sugrabai wife of Yousufali Sadik [ii]. Reply of MEO, Karachi Circle dated 21.12.1972 and [iii]. Letter dated 25.06.1973 of Mrs. Sugrabai wife of Yousufali Sadik and submitted that earlier as well, an attempt for sale of the 'subject property' was failed due to 'non-fulfilling' of the 'requisite formalities'. All these letters respectively, are reproduced herein-below:-
Telephone 37728
[i] Sughra H. Sadik 11, B, New Queen's Road
KARACHI-2
The Military State Officer December 5, 1972
Cantonment Board,
Karachi
Subject: TRANSFER/SALE OF BUNGALOW WITH COMPOUND ON PLOT NO.112 DEPOT LINES AT KARACHI
Dear Sir,
In intend to sell the above said property (Bungalow with compound wall on Plot No.112 Depot Lines) to Mr. Attaullah Zia resident of 142-S Sir Syed Road, P.E.C.H.S., Karachi on the clear understanding that it shall be transferred on the same terms and conditions as it was granted to me. The said purchaser has undertaken to abide by all terms of Lease.
It is therefore requested that necessary permission for same may kindly be granted to me for the above purpose. [Emphasis added]
Thanking you,
Yours faithfully,
Sd/-
(MRS. SUGHRA BAI)
Wife of Yousuf Ali Sadik
[ii] No.K-7/11255
Military Estates Officers, Karachi Circle
252-B, Sarwar Shaheed Road, Karachi Cantt.
Dated the 21 December 1972
To
Mrs. Sughra Bai
Wife of Yousuf Ali Sadik,
11-B, New Queen's Road, Karachi-2
Subject. PROPOSED SALE OF BUNGALOW NO.112, DEPOT LINES KARACHI CANTONMENT
Reference your letter dated 5th December, 1972
To enable this office to take further action in the matter you are requested to furnish the following documents:-
Undertaking in writing from the prospective purchaser to the effect that the subject bungalow will be used only for residential purpose.
Intimate the amount of consideration for which the subject bungalow is being sold. [Emphasis added]
Sd/-
(Salim Bahadur Khan)
Military Estates Officer,
Karachi Circle,
Tele: 512464
Telephone 37728
[iii]. Sughra H. Sadik 11, B, New Queen's Road
KARACHI-2
Registered A.D.
Dated the 25th June, 1973
To,
The Military State Officer
Karachi Circle,
KARACHI
Reference: No.K-7/112/55 dated 21-12-72
Proposed sale of Bungalow
No.112, Depot Lines, Karachi
Dear Sir,
With reference to your above letter I have now to inform you that since Mr. Abdullah Zia has failed to submit the required under taking and has backed out, the application sent to you is withdrawn and you are requested to treat the matter as closed. [Emphasis added]
Yours faithfully
Sd/-
(SUGHRA Y. SADIK)
Encl. Copy of letter addressed to Abdullah Zia c.c. to: Mr. Ataullah Zia
142-S, Sirsyed Road P.E.C.H. Society,
KARACHI-29
29. Lastly, Mr. Kashif Paracha, learned DAG while, concluding his arguments forcefully submitted that, as far as, the claim of Ghulam Nabi Qureshi son of Muhammad Ibrahim viz-a-viz purchase of the 'subject property' is concerned, 'no permission' in this regard was ever obtained from the concerned authority[ies]/MEO. Mr. Kashif Paracha, forcefully contended that the Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], is not only maintainable under the facts and circumstances of the case but also deserves to be granted as all orders obtained/passed in this Constitution Petition No.D-1372 of 2003, in fact, have been obtained by way of 'fraud' and 'mis-representation'. Per learned DAG, all such orders/entire structure based/raised thereon, are/is not only illegal, null, void ab initio but also of no legal effect. Further, not only the Constitution Petition filed on behalf of a dead principal/person, but all orders, passed herein, i.e. from very institution of the instant petition are nullity in law, as such, is/are liable to be re-called/set-aside. On this aspect of the matter, reliance was placed on the case of Parbati Dadgupta v. Official Liquidator and another [2006] 130 Company Cases 427 [Calcutta]. The relevant 'paras 2,34 and 36' therefrom, are reproduced, respectively, herein-below:-
2. The main ground for the stay application was that the winding up petition had been affirmed by one Shri Ajoy Dalan, purportedly in his capacity as the constituted Attorney for the respondent No. 2, Lokenath Jeloka, who had not been heard of since 1989 and was legally presumed to be dead having regard to the provisions of Section 108 of the Indian Evidence Act, 1872. It was the case of the appellant/ petitioner that Shri Ajoy Dalan, being fully aware of the fact of Lokenath Jeloka's death, had fraudulently made use of the Power of Attorney executed in his favour by Lokenath Jeloka to file the winding up petition.
34. We are afraid that we cannot convince ourselves to accept Mr. Mukherjee's submissions since the presumption of civil death would not commence from the date of the adjudication but would date back to the initiation of the proceedings. In our view, when a dispute is raised as to whether a person is alive or not from before the initiation of the proceedings, the onus to prove that such person was alive would date back to the initiation of the proceedings. In other words, it would be for Shri Ajoy Dalan to establish that his principal, Lokenath Jeloka, was alive at the time of filing of the winding up petition and that as Lokenath Jeloka's Constituted Attorney he was competent to initiate the proceeding.
36. The appeal must, therefore, succeed on the preliminary question regarding the maintainability of the winding up petition alleged to have been filed on behalf of Lokenath Jeloka. In our view, Shri Ajoy Dalan has failed to prove that his principal, Lokenath Jeloka, was alive at the time of filing of the winging up petition and it has, therefore, to be presumed that Shri Dalan did not have any authority to execute the Vakalatnama and verify the petition on the strength of the Power of Attorney executed in his favour by Lokenath. Jeloka. [Underlining is ours]
30. Further, learned DAG, in support of his contention, also placed reliance on cases of [i]. Khawaja Muhammad Yousuf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others [1999 SCMR 1516], [ii]. Abdur Rehman Khan v. Muhammad Altaf and 3 others [1997 CLC 1260], [iii]. Qureshi Muhammad Anwar and 6 others v. S. A. Qureshi and 3 others [1994 CLC 733], [iv]. Bashir-ud-Din v. The Government of N.W.F.P. through Collector and 6 others [1995 CLC 1394], [v]. Fida Muhammad Khan (Deceased) through Legal Heirs and others [PLD 1985 SC 341], [vi]. Messrs Farooq & Co. v. Federation of Pakistan and 3 others [1996 CLC 2030], [vii]. Messrs Business Computing International [Pvt.1 Ltd. v. IBM World Trade Corporation [1997 CLC 1903], [viii]. Muhammad Zubair v. Mansoor Ali through Attorney and 6 others [2008 CLC 921], [ix]. Noor Ahmed v. Mst. Hubab Jan and 9 others [PLD 1974 SC 78], [x]. Mehar Muhammad v. Deputy Settlement Commissioner and others [1979 SCMR 182], [xi]. Mt. Boondu v. Moti Chand [AIR 1923 Lahore 652(1)].
31. Against the above, Mr. Khalid Mehmood Siddiqui, learned counsel for the new Petitioner viz. Ghulam Nabi Qureshi son of Muhammad Ibrahim [who as per original title of Memo of Petition filed on 30.10.2003, claimed himself a General Attorney of Mrs. Sugrabai wife of Yousufali Sadik who as per record has passed away on 04.07.2002] while, arguing, the case of new Petitioner contended that in fact the Petitioner lady, as per original amended title, was a holder of 'occupancy rights' in respect of 'subject property i.e the Land with Bungalow No.112 standing thereon [old No.6] measuring 0.69 acres, under old grant 'Class B-3', issued by M.E.O. Sindh circle, situated in 'Depot lines' in the area of Karachi Cantonment, shown on General Land Register as being maintained by M.E.O. Karachi. From record, it reveals that Mrs. Sugrabai wife of Yousufali Sadik in fact had purchased the 'subject property' vide 'Sale Deed' dated 20th October 1944, Registered under serial No.1703, Registered number 1611, at pages 60 to 66 in Volume 687 of Book No. I dated 30th November 1944, from 'Byramji Merwanji Dinshaw' and others. The Respondent No.1 herein, thereafter, had not only 'allowed' the 'transfer'/'mutation' of the 'subject property' but also had then accorded transfer of the 'old grant rights' in favour of said Mrs. Sugrabai wife of Yousufali Sadik. The 'transfer'/mutation' of the 'subject property' in the name of Mrs. Sugrabai wife of Yousufali Sadik, it is needless to say, was also recorded in the General Land Register [In short GLR], as being maintained by Respondent No.1 herein, under the 'Cantonment Land Rules, 1937'.
32. Per Mr. Khalid Mehmood Siddiqui, learned counsel for the new Petitioner, Mr. Ghulam Nabi Qureshi [who as per 'original title' of Memo of Petitioner, claimed to be a 'General Attorney' of Mrs. Sugrabai wife of Yousufali Sadik, who admittedly passed away on 04.07.2002, i.e. prior to the filing of the instant Petitioner on 31.10.2003], the Government of Pakistan in the year, 1996, did initiate a 'Policy' for the 'conversion' of properties which were, then held on 'Old Grant'/Cantt. Code Leases into regular leases. Under the said 'Policy of 18th July, 1996', it is worth mentioning, a procedure was outlined for the purpose of 'conversion' of all such 'old grant' properties. The said Policy 'inter alia' also provided a criteria /procedure for the 'conversion' of the 'old grant properties' into regular 'leases'. The relevant 'clauses' 'f', 'g' and 'h' therefrom, are reproduced herein-below:-
[f] Evaluation Committee outside Bazar area will comprise the local Garrison Commander [in chair], DML&C of the Region, Station Commander, MED and CEO. Committee comprising of Station Commander, MEO and CEO will finalize evaluation of market price of sites inside Bazar Area in particular Cantonment.
[g] The Evaluation committee will determine the market rate within six months on the basis of market price collected by the circle offices from Revenue Authorities, Estate agents etc.
[h] The proposed leases shall complete the lease formalities within a period of one year after finalization of the market rate failing which the site is liable to be resumed under the terms of the grant/code lease".
33. According to Mr. Khalid Mehmood Siddiqui, Respondent No.2/MEO, through a letter No. K-7/112/7 dated 4th August 1996, [Annexure 'P/II' to the MoP], addressed to the Petitioner, in his capacity as a 'General Attorney' of Mrs. Sugrabai wife of Yousufali Sadik, 'offered a lease' under the CLA Rules 1937, in terms of 'Policy of conversion' of 19th July 1996. The said offer, was later-on, repeated vide another letter No.K 7/112/8 dated 8th October 1996 of MEO/Respondent No.2 [Annexure P/III to the MoP]. Both the aforesaid letters [Annexures 'P/II' and 'P/III' respectively to the MoP], are reproduced as follows: a.
REGISTERED/A. D.
NO.K-7/112/7
MILITARY ESTATES OFFICE, KARACHI CIRCLE
252-Sarwar Shaheed Road, Karachi Cantt.
Dated 04 August, 1996
To
Mrs. Sugrabai wife of Yousufali
Bungalow No.112, Depot lines Karachi
_________________Cantonment.
Through Attorney Mr. Ghulam Nabi Qureshi
SUBJECT: GRANT OF LEASE FOR COMMECIAL PURPOSE UDNER CLA RULES 1937 IN RESPECT OF BUNGALOW NO.112 DEPOT LINES KARACHI CANTONMENT
Whereas the land comprising the site of Bungalow No.112 Depot, lines, Karachi Cantonment, bearing Survey No.112 and measuring .69 acres belongs to the Government of Pakistan and is held by you on old grant terms.
2. Without prejudice to Government's legal rights under the terms of grant/Code Lease the Government has decided to offer you lease under C.L.A. Rules, 1937 of the above site on the following terms and conditions:- a) The lease will be granted in Schedule, IX-C without resumption of any area for a period of 99 years, renewable upto another similar terms on payment of rent at Rs.4/sq. yard, premium at 50% of the market rate and development charges as prescribed by the Cantonment Board. b) The minimum size of the plot for residential purposes will be 400 square yards. c) The market rate will be determined by the Evaluation Committee appointed by the government. d) After finalization of the market rate by the Evaluation Committee, you will have to complete all the formalities for lease of site within a period of one year. e) In case of failure to take lease within prescribed period the site is liable to be resumed by the Government without payment of any compensation whatsoever under the terms of Grant/Code Lease.
You are, therefore, hereby served with this notice to apply accordingly on the prescribed form (Sch. V) obtainable from this office.
Sd/-
(JAMAL UDDIN ANSARI)
Military Estates Officer,
Karachi Circle, Karachi
Tele No.5684371.
Copy to:
1. DGML&C, Rawalpindi.
2. Garrison Commander/Station Commander.
3. DML&C Karachi Region, Karachi. b.
REGISTERED/A.D. 'MOST IMMEDIATE'
NO.K-7/112/8
MILITARY ESTATES OFFICE, KARACHI CIRCLE
252-Sarwar Shaheed Road, Karachi Cantt:
Dated the 08 October, 1996.
To
Mrs. Sugrabai wife of Yousufali
Resident of Bungalow No.112, Depot lines
Karachi
SUBJECT: GRANT OF LEASE FOR COMMERCIAL/ PURPOSE IN RESPECT OF SURVEY NO.112, DEPOT LINES, KARACHI CANTONMENT
Reference this office letter No.K-7/112/7, dated 04-8-1996.
2. You are hereby again reminded in your own interest to kindly avail of the Government's offer for lease of your site and to apply for the same at the earliest latest by 13th October, 1996.
Sd/-
(SULTAN KHALID MASUD KHATTAK)
MILITARY ESTATES OFFICER,
KARACHI CIRCLE, KARACHI
TELE NO.56843 71.
Copy to:-
The Director, Military Lands and Cantonments,
Karachi Region, Karachi
34. The 'General Attorney' of Mrs. Sugrabai wife of Yousufali Sadik [who as per 'Death Certificate dated 03.04.2003 had passed away on 04.03.2002 i.e. before filing of the instant petition on 31.10.2003], it appears, had also written a letter dated 29.10.1996 to the MEO [Annexure 'P/IV' to the MoP]. The said letter dated 29.10.1996 [Annexure 'P/IV' to the MoP] of the 'General Attorney', Ghulam Nabi Qureshi son of Muhammad Ibrahim, whereby, a duly filled-up 'Proforma' to the MEO/Respondent No.2' s office was submitted for the purpose of granting a 'commercial lease' in favour of Mrs. Sugrabai wife of Yousufali Sadik. For ready reference the aforesaid is also reproduced herein-below:-
29th October, 1996
Military Estate Officer,
252, Sarwar Shaheed Road,
Karachi Cantt., Karachi.
Sub: GRANT OF LEASE FOR COMMERCIAL PURPOSE UNDER CLA RULES 1937 IN SCHEDULE IX-DC FOR BUNGALOW NO.112 ADMEASURING 0.69 ACRES DEPOT LINES, KARACHI
Dear sir,
We refer your letter No.K-7/112/8 dated 8th October, 1996. We are pleased to accept the Government offer for the grant of commercial lease of the plot on a 50% value assessed by the assessment committee duly constituted by the Government of Pakistan. The proforma supplied by your office in this regard is being enclosed duly filled in.
We would like to put on record that the plot is unauthorisedly occupied for which we have time and again requested your office for assistance to vacate the same in addition to the all out efforts being made by us. We request you to please take into consideration this fact while assessing the market value of plot which is a very important factory.
Thanking you in anticipation Yours faithfully
Ghulam Nabi Qureshi
Attorney of Mrs. Sugra Bai
Wife of Yousuf Ali
Address:
F/53, Block 5,
Park Lane, Clifton,
Karachi-75600 [Emphasis added]
Ends: Original + 3 Copies of Proforma
35. Mr. Khalid Mehmood Siddiqui, learned counsel for the new Petitioner [as per 'amended title', filed on 29.4.2011], next contended that in view of 'Policy of 1996', and as per 'clause [G.]' of letter dated 18th July 1996 of the Additional Director General Military Lands and Cantonment Department, addressed to all MEO's and CEO's, it was 'evaluation committee', which was made responsible for determination of the 'market rate', within 6 months but in the light of 'market price' collected by Circle Office of Revenue Authorities. Per 'aforesaid Policy', the 'prospective lessees' were under obligation to complete all such formalities for the purposes of leases within a period of one year, on 'finalization' of the 'market rate'. The 'old grant' property[ies], in case of failure, was/were made liable as resumed according to the 'terms' and 'conditions' of grant. The Respondents/Applicants herein, as urged, by Mr. Khalid Mehmood Siddiqui, however, failed and/or otherwise, avoided/neglected to implement the 'said policy' in its' 'letter' and 'spirit'. The Petitioner, nevertheless, on behalf of Sugrabai, who passed away on 04.07.2002, however, continued to pursue his application for the 'conversion' of the 'old grant' into commercial lease' before the 'concerned authority'. The original Petitioner-lady, though had passed away on 04.07.2002, but, indeed, on her behalf, an Application for 'conversion' of the 'subject property' into 'commercial lease' was available on record. Further, as evident, from letter dated 19th February 2001 [Annexure 'P/V' to the MoP], Respondent No.2/MEO, of course, had directed all DML and C's, MEO's and CEOs, to get ensure that no any delay in the 'implementation' of the 1996's Policy is made/occurred. Per Mr. Khalid Mehmood Siddiqui, obviously, it was, on account of delay, when all the concerned Departments were directed to call for 'fresh application(s)' and 'requisite documents' including rates approved by the 'Evaluation Committee.'
36. The General Attorney, Ghulam Nabi Qureshi son of Muhammad Ibrahim [New Petitioner], herein, as alleged, once again tried to contact Respondents/Applicants for 're-processing' the case of deceased Sugrabai wife of Yousufali Sadik for 'conversion' of the 'subject property' from 'old grant' to commercial lease. The Respondents/Applicants, however, as urged, by Mr. Khalid Mehmood Siddiqui, failed and/or avoided to 'grant commercial lease' in favour of the 'old grantee' viz. Sugrabai wife of Yousufali Sadik. According to Mr. Khalid Mehmood Siddiqui, such inaction/refusal/failure, on the part of Respondents/Applicants herein, was/is not only 'mala fide', 'deliberate', but also 'un-warranted'. Mr. Khalid Mehmood Siddiqui, while, advancing his arguments, next contended that the 'Respondents'/'Applicants' herein, in fact, wanted to create a ground for 'resumption' of 'subject property', however, in a 'unjustified' and 'illegal manner'. The course as chosen by Respondents/Applicants herein, indeed, is/was in clear violation of rules and law of 'natural justice'. The Respondents/Applicants, as urged by Mr. Khalid Mehmood Siddiqui, had never informed the Petitioner about the rates fixed for 'conversion' of the 'subject property' from 'old grant' to 'commercial purpose'.
37. Mr. Khalid Mehmood Siddiqui while, continuing his arguments further submitted that Respondent No.3, vide a letter No.18/11/Lands/ML&C/65-2001 dated 09 January 2003, [Annexure 'P/VI' to the MoP], addressed to all Ds. ML&C, MEO's and CEOs, did direct them to 'implement' the 'Policy' for conversion of land held on 'Old Grant' into regular 'leases' under CLA Rules, 1937. A time table, in this regard, was also given for 'completion' of 'various formalities' i.e. upto 30th June 2003. Vide another Letter No. K-7/112 dated 28th June 2003 [Annexure 73/VII to the MoP], sanction of the 'competent authority' for grant of 'commercial leases' in schedule IX-C of CLA Rules 1937, in respect of 'subject property' No.112 Depot Lines, Karachi Cantonment under the Old 'Grant Policy' of 1996, was communicated to Ghulam Nabi Qureshi [Attorney]. By receiving the aforesaid letter No. K-7/112 dated 28th June 2003 [Annexure P/VII to the MoP], the Petitioner-lady, as urged, by Khalid Mehmood Siddiqui, was taken by surprise to see that Respondent No.2, while, resuming an area of 342.9 sq.yds. out of the 'subject property', only for an area admeasuring 3284.9 sq. yds., the Respondent No.2/MEO, was agreed to the grant 'commercial lease' for 99 years. Besides, 'premium' of 50% which comes to Rs.29,02,32,800/- and 'ground rent' of Rs.13,139.84/- per annum was also demanded by Respondent No.2/MEO under the aforesaid letter of 28.06.2003 [Annexure 73/VIII to the MoP].
38. The aforesaid sanction, of competent authority, admittedly, was valid up 30.06.2003, i.e. for purpose of completion of 'lease formalities' and 'registration of lease', thereafter, with the relevant authorities. The aforesaid letter No.K-07/111 dated 28th June, 2003 of MEO, [Annexure 'P/VII' to the MoP], for ready reference is reproduced herein-below:-
BY-HAND/REGISTERED A/D
No.K-7/112/
Military Estates Office, Karachi Circle,
252, Sarwar Shaheed Road, Karachi Cantt.
Dated the 28th June, 2003.
To Mr. Ghulam Nabi Qureshi,
[Attorney]
F-53, Block-5, Park Lane,
Clifton, Karachi.
SUBJECT: GRANT OF COMMERCIAL LEASE IN SCHEDULE XC OF THE C.L.A. RULES, 1937 IN RESPECT OF PROPERTY NO.112 DEPOT LINES, KARACHI CANTONMENT UNDER THE OLD GRANT POLICY OF 1996.
Reference your Schedule-V application dated 28.10.1996.
2. Sanction of the competent authority do hereby conveyed to the following measures in Karachi Cantonment.
(i) Resumption of the area of above bungalow measuring 3339.6 Sq. Yards as recorded in the GLR at the option of the Grantee thereby extinction of old grant rights over the same.
(ii) Grant of Commercial lease in Schedule IXC of the CLA Rules, 1937 for 99 years [renewable] for another similar term] in respect of an area measuring 3284.95 Sq. yards in favour of existing grantees on payment of premium of Rs.29,02,32,800/- and ground rent of Rs.13,139,84 per annum. [Emphasis added]
(iii) Execution /Registration of lease in Schedule IX-C of the. CLA Rules, 1937 for Commercial purpose in respect of an area measuring 3284.95 Sq. yards.
(iv) Re-classification of area viz 342.9 Sq. yards from B-4 to Class C land and transfer of it management to Cantonment Board Karachi for the purpose of paring and allotment thereto survey No.112. [Emphasis added]
(v) Payment of development charges @ Rs.1000/- per Sq. yards for the area measuring 3627.91 Sq. yards.
3. Above sanction is valid upto 30.6.2003 for completion of Lease formalities and registration of lease with registration Authority, please therefore complete the following formalities on or Before 30.6.2003 failing which sanction will lapse automatically. [Emphasis added].
[i] To deposit above rent and premium in this office.
[ii] To pay development charges to Karachi Cantonment Board.
[iii] To forward stamp paper of appropriate value along with 30 sheets of judicial papers for drawing up lease deed.
[iv[ To deposit Misc. charges of Rs.135/- in this office.
Sd/-
MILITARY ESTATES OFFICER KARACHI CIRCLE KARACHI
39. The new Petitioner, who claiming himself as a 'General Attorney' of Mrs. Sugrabai [who died on 04.07.2002], was thus directed to complete all the 'formalities' including 'payment of rent' and 'premium' before the target date i.e. 30.06.2003, failing which, the sanction accorded as above, would automatically become lapse. The demand, so made, by Respondents/Applicants herein, through her General Attorney viz. Ghulam Nabi Qureshi son of Muhammad Ibrahim, per Mr. Khalid Mehmood Siddiqui, however, was found in 'clear violation' of the '1996 Policy'. The new Petitioner, however, was neither conveyed 'final decision' or, otherwise, informed about the rates in terms of '1996 Policy'. According to Mr. Khalid Mehmood Siddiqui, it is/was 'incumbent' upon the 'evaluation committee' to first assess the 'market rates' in the light of 'collectors' rates in juxtaposition of the 'Estate Agents' rates. Per Petitioner's stand, no 'such exercise', was ever conducted. The rates, even otherwise, per Mr. Khalid Mehmood Siddiqui stand, were fixed arbitrarily. By fixation of such 'arbitrary rates', the obtaining of 'commercial lease' by Petitioner-lady, was made impossible. The Respondents/Applicants, on the other hand, become able to resume the 'subject property' as per their wish and desire.
40. The 'original grantee', Sugrabai wife of Yousufali Sadik, it is worth to note, passed away on 04.07.2002, but the 'so-called' 'General Attorney' viz. Ghulam Nabi Qureshi s/o Muhammad Ibrahim, despite knowledge, however, avoided to 'disclose' the death of Mrs. Sugrabai wife of Yousufali Sadik. Instead, the so-called 'General Attorney' opted to file the instant Petition on behalf of dead principal/dead person. Moreover, by way of playing 'fraud' and 'mis-representation' upon the Court, the so-called 'General Attorney', nonetheless, continued to obtain orders in the instant in-competent Constitution Petition, filed by the so-called 'General Attorney' against a dead person. The General Attorney's letter dated June 30, 2003, written on behalf of a dead principal/dead person, for ready reference, is reproduced herein-below:-
The Military Estates Officer
Karachi Circle, June 30, 2003.
252, Sarwar Shaheed Road,
Karachi Cantt.
Karachi.
Sub: GRANT OF COMMERCIAL LEASE IN SCHEDULE IX-C OF THE CLA RULES, 1937 IN RESPECT OF BUNGALOW NO.112, DEPOT LINES KARACHI CANTONMENT UNDER THE OLD GRANT POLICY OF 1996.
Dear Sir,
This refers to your letter No.K7/112 dated 28.06.2003 conveying the grant of commercial lease in schedule IX-C of the CLA Rules, 1937 in respect of property No.112, Depot lines, Karachi with the condition that the sanction valid for two days only i.e. upto 30.06.2003 for payment of Rs. 290,232,000/- and execution/registration of lease and completion of other formalities in reply thereof. Kindly note 29th June 03 was Sunday hence leaving only a day [few hours] within which you would kindly appreciate, it's humanly not possible for completion of these formalities.
In view of the above it is requested that in the offer/ sanction, the following points may be considered :
01. The assessment of the land value as contained in the above mentioned letter is very very high. This rate is imaginary and is therefore unrealistic.
02. Your letter under reference is not in accordance with your offer made vide your letter No. K-7/112/7 dated 04.08.1996 wherein apart form other terms it was mentioned that conversion of lease shall be made on payment of premium at 50% of markets rate.
03. Time given for the completion of formalities i.e. arranging huge amount of payment and completing formalities of registration of the documents is impracticable.
In the meantime, it is requested that the sanction should be kept valid till the rate of land and mode of payment is settled according to the prevailing market rate.
Your early response in the respect shall be highly obliging.
Thanking you.
Yours faithfully
Sd/-
GHULAM NABI QURESHI
Attorney
41. Mr. Khalid Mehmood Siddiqui, learned counsel for the Petitioner next contended that the Petitioner thus, feeling 'aggrieved' by and 'dissatisfied' with letter/notice dated 28th June 2003 [Annexure P/VIII to the MoP], 'impugned' the same, by way of filing the instant petition on 31.10.2003, as the said letter of 28.06.2003, was not only illegal, mala fide, arbitrary but was also without jurisdiction. Moreover, letter dated 28.06.2003. 'ex-facie' was issued in violation of '1996th Policy' which Policy, as urged, by Khalid Mehmood Siddiqui, was meant mainly for the purpose of 'conversion' of 'Old Grants' into 'leases' under the CLA Rules, 1937. Further, the said letter/notice, was received by 'General Attorney' of the lady Petitioner, Mrs. Sugrabai wife of Yousufali Sadik on Sunday dated 29th June, 2003. Per said letter of 28.06.2003, the grantee of 'subject property', was required/directed to finalize, the case by 30 June, 2003, failing which Respondents/Applicants herein shall 'resume' the 'subject property'. This whole exercise, per Mr. Khalid Mehmood Siddiqui, was not only illegal but also contrary to Respondent No.3's own letter of 04.08.1996, where-under, a time table regarding completion of 'requisite formalities' by official Respondents, as well as, by the Petitioner was outlined. According to Mr. Khalid Mehmood Siddiqui, per 'Policy of 1996', the 'evaluation committee', was required to 'finalize the rates' for the 'conversion' within a period of six [6] months' time but, as alleged, the same could not be done. The 'Old Grantees', however, only thereafter, were obliged to finalize the 'requisite formalities' for 'conversion' of the properties into 'regular leases' i.e. within a period of one year, failing which the land was liable to be resumed by Respondents/Applicants herein.
42. According to Mr. Khalid Mehmood Siddiqui since, the 'General Attorney' had already applied for 'conversion' of 'Old Grant' into 'commercial leases' in the year, 1996. As such, in terms of the said scheme, the 'grantee' thus was entitled for 'conversion' of the 'subject property' into 'commercial lease'. The Respondents, however, failed to finalize the case of Mrs. Sugrabai wife of Yousufali Sadik within the stipulated time of scheme/Policy of 1996. Further, the 'Evaluation Committee' had also failed to 'determine' the 'market rates' as per 'criteria' in the light of Collector's fixed rates. The 'General Attorney' of Sugrabai wife of Yousufali Sadik, [who died on 04.07.2002 i.e. before filing of the listed Petition on 31.10.2003], as urged by Mr. Khalid Mehmood Siddiqui, however, remained ready and willing to get the 'Old Grant' converted into 'Regular Commercial Lease'. The ' new Petitioner General Attorney', as contended by Mr. Khalid Mehmood Siddiqui, was never given an opportunity either to file 'objections' or oppose the deliberate delay on the part of Respondents/Applicants herein, in the 'process of conversion' otherwise.
43. Per Mr. Khalid Mehmood Siddiqui, the delay thus caused, was not only 'deliberate' but 'ex-facie', the same was aimed to make it impossible for 'grantee' to either pay or get converted the old grants into 'commercial leases'. Even, the rates, so fixed, were higher by 300 to 400 times, than, the rates already finalized for Lahore and Rawalpindi. Per Mr. Khalid Mehmood Siddiqui, learned counsel for the new Petitioner, the rates were much higher than 'current market' value. The 'fixation of high rates, after about eight [8] years of 'Policy, 1996', were not only 'contrary' to the 'Policy of 1996' but it also seems an attempt towards' depriving the Petitioner-lady, Mrs. Sugrabai wife of Yousufali Sadik of its' old grant property malafidely. Not only this, Respondents/Applicants herein, were also found in a drill/attempt to deprive the lady Petitioner viz. Sugrabai wife of Yousufali Sadik of an area of 342.9 sq.yards. Per learned counsel for Ghulam Nabi Qureshi, even the new Petitioner, as now the case is, cannot be deprived of its' 'subject property' without observing 'due process of law'. The Respondents/Applicants herein, as urged, by Mr. Khalid Mehmood Siddiqui, are still under legal obligation to give a 'commercial lease' in respect of total area measuring 3339.6 sq.yds in favour of the new Petitioner. The demanded amount of Rs.29,02,32,800/-, on account of 'premium', as alleged by new Petitioner is only in respect of an area measuring 3339.6 sq.yds but the 'commercial lease', yet to be granted, per Petitioner's stand, would be for area of 3284.95 sq.yds.
44. Mr. Khalid Mehmood Siddiqui, while, referring to various orders passed in the instant Constitution Petition, forcefully contended that the Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], filed by the Respondents/Applicants herein, is beyond a period of three [3] years, as such, the same besides, being hopelessly 'time barred', is hit by the 'doctrine of Resjudicata'. Mr. Khalid Mehmood Siddiqui, next contended that the demand of 'high premium' in 'old grant' cases, is against the judgments of superior courts. Per Mr. Khalid Mehmood Siddiqui, on this ground, as well, present Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], filed by the Respondents/Applicants herein, is liable to be dismissed with cost. Mr. Khalid Mehmood Siddiqui, learned counsel for the new Petitioner viz. Ghulam Nabi Qureshi son of Muhammad Ibrahim further contended that the filing of the instant Constitution Petition on behalf of a dead person gives 'no cause of action' to the Respondents/Applicants herein, for invoking jurisdiction of this court under section 12[2], C.P.C.
45. According to Mr. Khalid Mehmood Siddiqui, in the case in hand, no any 'fraud' or 'mis-representation', as alleged, by the Respondents/Applicants herein, have been committed by Ghulam Nabi Qureshi son of Muhammad Ibrahim/' General Attorney' of deceased Mrs. Sugrabai wife of Yousufali Sadik. Per Mr. Khalid Mehmood Siddiqui, the 'non-disclosure' of the date of death of Mrs. Sugrabai wife of Yousufali Sadik, who passed away on 04.07.2002, is not a 'material' concealment of facts, as it has caused no prejudice to the Respondents/Applicants herein. Even otherwise, now Ghulam Nabi Qureshi son of Muhammad Ibrahim has replaced the deceased Petitioner, Mrs. Sugrabai wife of Yousufali Sadik. The lacuna, as such, if any, has already been removed, upon granting the Application under Order I, Rule 10, C.P.C. [C.M.A. No.12458 of 2009], filed by the new Petitioner viz. Ghulam Nabi Qureshi son of Muhammad Ibrahim on 21.04.2011. Moreover, Respondents/Applicants herein, as alleged by them, were never left at 'liberty' to avail remedy under section 12[2], C.P.C. read with section 151, C.P.C. vide order dated 26.02.2013, passed by Hon'ble Supreme Court of Pakistan.
46. Mr. Khalid Mehmood Siddiqui next contended that all previous orders passed in the instant Constitution Petition besides being valid cannot be re-called/set-aside merely on the ground that the present petition was filed on 31.10.2003, on behalf of person already died on 04.07.2002. Per Mr. Khalid Mehmood Siddiqui, even if, orders passed in this petition are re-called/set-aside then too, the SALE DEED DATED 9TH SEPTEMBER, 2008, executed by Nazir, District and Sessions Court Karachi [Annexure 'N' at page 355 to the MoP] pursuant to and in compliance with a 'consent order' and 'decree' dated 12.11.2007, passed in Suit No.554 of 2007 [Ghulam Nabi Qureshi v. Fazal Yousuf Sadik and 4 others], by Vth Rent Controller/Civil Judge Karachi [South], in favour of new Petitioner shall remain intact. Like-wise, the 'mutation' made by MEO, pursuant to the consent 'order'/'decree', passed in favour of the new Petitioner in the year, 2007 shall also remain intact and forceable.
47. Mr. Khalid Mehmood Siddiqui, learned counsel for the new Petitioner while, continuing his argument forcefully, contended that if, THE APPLICATION UNDER SECTION 12[2], C.P.C. READ WITH SECTION 151, C.P.C. [C.M.A. No.24046 of 2013], at this belated stage, is allowed merely, on the grounds of technicalities then, of course, the Petitioner herein, would be seriously prejudiced. According to Mr. Khalid Mehmood Siddiqui, all orders passed herein, have already attained finality, as such, now it cannot be called in question under the exercise of section 12[2], C.P.C. without availing appropriate remedy at the appropriate time by Respondents/Applicants herein. Reference in this regard was made to the case of Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others [2003 SCMR 1050], wherein, it was observed as follows:-
"Appellants in the present case due to negligence, failed to avail the statutory remedies and subsequently on the enactment of section 1212], C.P.C. taking plea of fraud, made an attempt to re-open the past and closed transaction."
48. According to Mr. Khalid Mehmood Siddiqui, upon execution of an 'Irrevocable General Power of Attorney', the Principal becomes functus officio and remains with no power to terminate the same in view of section 202 of the Contract Act, 1872 [IX of 1872], unless there exists an 'express clause' in the power of attorney itself. Per Mr. Khalid Mehmood Siddiqui, in the case in hand, the 'General Power of Attorney' is also coupled, with interest. Further, the dead Petitioner has already been replaced by the 'new Petitioner', Ghulam Nabi Qureshi son of Muhammad Ibrahim, as per Amended Title, filed on 29.04.2011, as such, the lacuna, if any, stands cured/removed. Mr. Khalid Mehmood Siddiqui, in support of his contention, has placed reliance on the case laws: i. Messrs Muhammad Muqeem Sohail Builders and Developers through Managing Partner v. Shamsher Ali and 43 others [2016 YLR 240 Karachi], ii. Bhagwanbhai Karamanbhai Bharvad v. Arogyanagar Co-Op. Housing Society Ltd., and others [AIR 2003 Gujarat 294], iii. Karimullah Khan and another v. Bhanu Pratap Singh Giriraj Singh [AIR 1938 Nagpur 458], iv. Muhammad Aslam and others v. Absar Fatima and others [2011 CLC 1521 Lahore], v. Nazir Ahmad and others v. Suleman and others [2000 YLR 527 Lahore] and vi. 2016(1) L.W. 462 In The Inspector General of Registration, No.100, Santhome High Road, Foreshore Estate, Pattinapakkam, Chennai-600 028. The relevant portions, relied upon therefrom by Mr. Khalid Mehmood Siddiqui, learned counsel for the Petitioner read as follows: i. 2016 YLR 240 KARACHI:
"...Power of attorney was coupled with interest which was protected under section 202 of Contract Act, 1872 ....Irrevocable general power-of-attorney executed in favour of plaintiff having never been challenged or revoked by legal heirs of deceased partner, being authority coupled with interest in favour of attorney regarding suit property, was still in existence and valid....Suit filed by plaintiff was not barred by non-filing of fresh power-of-attorney by legal heirs, as in case some of the executants of power of attorney had expired during pendency of proceedings, authorization on behalf of remaining executants would continue to remain in force..." ii. AIR 2003 GUJARAT 294:
"...Death of one of land owner. No need for power of attorney holder to obtain consent from heirs and legal representatives of deceased land owner. More so, when there was no express contract for termination of agency.... " iii. AIR 1938 NAGPUR 458:
"...I fail to see why it should not so permit for the simple reason that a person in whose name the suit is wrongly filed happens to be a dead person. Why should the applicability of O. I, R. 10, Civil P.C., depend upon 'the wrong person" being alive or dead? On the plain reading of that enactment, I am led to think that it only contemplates that a suit should have been filed in the name of a wrong person irrespective of whether he is a living or a dead person.
......I hold that the present case comes within the ambit of O. I, R. 10, Civil P.C., and that the defect is capable of being cured if the mistake is shown to have occurred in good faith, provided that in permitting the plaintiff to amend it no injustice results to the defendant...." iv. 2011 CLC 1521 LAHORE:
...Power of attorney---Irrevocable power of attorney---Effect--- When a person gives an irrevocable power of attorney, no rights of principal are let in that property..." v. 2000 YLR 527 LAHORE:
...A General Power of Attorney coupled with interest cannot he revoked...." vi. 2016(1) L.W. 462 IN THE INSPECTOR GENERAL OF REGISTRATION, NO.100, SANTHOME HIGH ROAD, FORESHORE ESTATE, PATTINAPAKKAM, CHENNAI-600 028:
45. In so far as India is concerned, the law of contracts is codified and hence the answer to the question on hand is to be found only in the Contract act and that too by reading sections 202 and 209 together. A careful reading of section 202 would show.--
(a) that but for the two illustrations contained thereunder, it applies primarily to cases of voluntary acts of termination;
(b) that in any case, the prescription contained in Section 202 that an agency coupled with interest cannot be terminated, can be kept out by parties by including express provisions in the contract; and
(c) that what is prohibited by Section 202 is only a termination to the prejudice of the interest that the agent himself has in the property which forms the subject matter of the agency.
46. Section 202 does not stipulate that the termination of agency by the death of the principal is not permissible at all. Section 202 does not even protect the agent. It actually protects the agent's interest in the property which forms the subject matter of the agency." In another ruling reported in 2014 SCC Online Del 3152 in Sh. Bidhan Chand Biswas (Since Deceased) through LRs v. Sh. Prakash Chand Bansal and others, it is held as follows:-
'42. In the case of Ramesh Chand (supra), the Hon'ble High Court was pleased to reiterate that by virtue of the provisions of section 202 of the Contract Act, a power of attorney executed for consideration would remain valid even after the death of the executants because the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executants. Section 202 of the Contract Act provides that such an agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest." In yet another ruling reported in 2014 SCC Online Del 6702 in Smt. Sudershana Kumar Blagan v. Smt.Tulsan Devi Decd through LRs and others, it is held as follows: -
'13. The reason why any power of attorney given for consideration does not lapse after the death of the principal who has executed the same is because once consideration has been received by a person which is a subject matter of the power of attorney, and such interest is create in favour of the agent, agent should not be prejudiced because of the death of the principal inasmuch as the principal has received whatever benefits/consideration which had to be received under the power of attorney." Relying on the above said ruling, the learned counsel for the appellant contended that the conclusion of the first appellate Court is unsustainable and the same is to be set aside. [Emphasis added].
49. Mr. Khalid Mehmood Siddiqui, learned counsel for the new Petitioner next contended that 'non-disclosure' of the date of death of deceased lady, Mrs. Sugrabai wife of Yousufali Sadik and/or purchase of the 'subject property' through 'sale agreement' dated 04.04.1979, in the Memo of Petition is immaterial, as the dispute involved herein, pertains to the 'quantum' of amount, payable towards' 'premium' in respect of 'subject property'. Per Mr. Khalid Mehmood Siddiqui, learned counsel for the new Petitioner, Ghulam Nabi Qureshi son of Muhammad Ibrahim, who filed the instant Constitution Petition No.D-1372 of 2003, on behalf of his principal [who had died on 04.07.2002], on 31.10.2003, has never claimed that the said lady viz. Mrs. Sugrabai wife of Yousufali Sadik was/is alive. Regarding mis-representation, Mr. Khalid Mehmood Siddiqui, made reference to the 'definition' of 'Misrepresentation' as given, under section 18 of the Contract Act, 1872 [IX of 1872]. The said definition reads as follows:-
"Misrepresentation" means and includes--
(1) the positive assertion, in a manner not warranted by the information of the person making it of that which is not true, though he believes it to be true:
(2) any breach of duty which, without an intent to deceive, gains advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of any one claiming under him.
(3) causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement".
50. In view of the aforesaid 'definition' of 'mis-representation', Mr. Khalid Mehmood Siddiqui, learned counsel for the Petitioner submitted that in the instant case, there 'exists' no element of breach of any duty or otherwise, any substantial mistake has been committed by the 'General Attorney' on the basis whereof, the Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], filed by the Respondents/Applicants herein, can be granted. Reliance in this regard, was placed on the cases of [a]. Pakistan Telecommunication Company Ltd. (PTCL) through President and 8 others v. Imtiaz Ahmad [2017 MLD 773 Peshawar], [b]. Muhammad Yaqoob v. Mohsin Ali and another [1999 CLC 1173 Karachi], [c]. Mobina Begum v. The Joint Secretary, Ministry of Religious and Minority Affairs, Government of Pakistan, Islamabad and 2 others [1994 MLD 1441 Karachi], [d]. Mst. Bhano and another v. Mian A. M. Saeed and others [1969 SCMR 299], [e]. Mercantile Fire and General Insurance Co. of Pakistan Ltd. v. Messrs Imam and Imam Ltd. [1989 CLC 2117 Karachi]. The relevant portions therefrom, as referred to by Mr. Khalid Mehmood Siddiqui, are as follows:- a. 2017 MLD 773 - PESHAWAR
"Misrepresentation. I. The act of making a false or misleading assertion about something, usually, with the intent to deceive. The word denotes not just written or spoken words but also any other conduct that amounts to a false assertion. b. 1999 CLC 1173 KARACHI
Words and Phrases .... Fraud" and "misrepresentation"--- Distinction---Both the terms are more or less synonymous, the difference between them is one of intent. c. 1994 MLD 1441 KARACHI
S. 12(2)---Term, "fraud" and "misrepresentation" as occurring in S. 12(2), Civil Procedure Code, 1908---Connotation and distinction---Distinction between 'fraud" and "misrepresentation" is one of knowledge and intention for whereas 'fraud" proceeds on basis of a fact or assertion or omission to assert such fact, with knowledge to its falsity, in the context of "misrepresentation" assertion or, its omission may lack both knowledge or intention. - d. 1969 SCMR 299
No law provides a special quantum of evidence for the establishment of fraud. While it is true that the Courts should be careful in coming to a finding of fraud and should normally satisfy themselves that the finding is based on reliable evidence, it cannot be said that any special number of witnesses or any special nature of evidence is needed 10 establish fraud. It is for the Court which is to decide this question to be satisfied that the evidence adduced before it is such that it can believe it. e. 1989 CLC 2117 KARACHI
----Fraud and misrepresentation--Meaning, scope and import of-Difference between fraud and misrepresentation is one of intent though the effect of either may be the same viz. obtaining of an advantage which, but for the facts alleged, may not have been obtainable."
51. According to Mr. Khalid Mehmood Siddiqui, learned counsel for the new Petitioner, in the case in hand, the 'subject property' has already been mutated by MEO in favour of the Petitioner on 26.10.2011, i.e. after obtaining a 'consent order'/decree' dated 12.11.2007, by the new Petitioner, in Suit No.554 of 2007 [Ghulam Nabi Qureshi v. Fazal Yousuf Sadik and 4 others]. Mr. Khalid Mehmood Siddiqui while, continuing his arguments, next contended that 'fraud' and 'mis-representation' usually aimed, either to 'cause' injury to some one or otherwise, to take an undue benefit therefrom. By means of the instant petition, neither any 'injury' has been caused to the Respondents/ Applicants herein, nor any 'undue benefit' has been taken by the new Petitioner, Ghulam Nabi Qureshi son of Muhammad Ibrahim. Moreover, the new Petitioner, is in possession of the 'subject property' and to this effect, as well, none of the 'legal heirs' of the deceased lady, Mrs. Sugrabai wife of Yousufali Sadik or anyone else, has raised and/or is raising any objection. Further, the new Petitioner has also informed the Court vis-a-vis the date of death of Mrs. Sugrabai wife of Yousufali Sadik, but only after getting its' knowledge. In this regard, reference was made to the Application under Order I, Rule 10(2), C.P.C. [C.M.A. No.12458/2009], filed by Ghulam Nabi Qureshi son of Muhammad Ibrahim along with some 'documents'. The said application, it is needless to say, was allowed vide Order dated 21.4.2011, where-after, an 'amended title' was filed on 29.04.2011. Per Mr. Khalid Mehmood Siddiqui, in view of this position, as well, the Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], filed by Respondents/Applicants herein, is liable to be dismissed with cost.
52. Mr. Khalid Mehmood Siddiqui, learned counsel for the new Petitioner viz. Ghulam Nabi Qureshi son of Muhammad Ibrahim [who as per original title of the instant petition had claimed himself as General Attorney of the original Petitioner-lady viz. Mrs. Sugrabai wife of Yousufali Sadik, who per record has died on 04.07.2002 i.e. much before filing of the instant petition], in support of his contention further placed reliance on the case laws: [i]. Messrs S. H. Enterprises v. Government of Pakistan and others [2004 YLR 2044 Sindh], [ii]. Nusrat Azim v. Government of Pakistan and others [PLD 2005 Karachi 142], [iii]. Mrs. Rehana Asghar v. Military Estate Officer, Lahore Circle, Lahore Cantt. and 2 others [2005 MLD 28 Lahore], [iv]. Muhammad Asghar v. Government of Pakistan and others [2013 YLR 2639 Peshawar], [v]. Riaz Ahmed and 2 others v. Province of Sindh through Chief Secretary and 3 others [2017 MLD 507 Karachi], [vi]. Barkat Ali (Deceased) through Legal Heirs and 6 others v. Mohammad Umer and 2 others [2017 MLD 1339 Karachi], [vii]. Pakistan Telecommunication Company Ltd. (PTCL) through President and 8 others v. Imtiaz Ahmad [2017 MLD 773 Peshawar], [viii]. Muhammad Yaqoob v. Mohsin Ali and another [1999 CLC 1173 Karachi], [ix]. Mobina Begum v. The Joint Secretary, Ministry of Religious and Minority Affairs, Government of Pakistan, Islamabad and 2 others [1994 MLD 1441 Karachi], [x]. Mst. Bhano and another v. Mian A. M. Saeed and others [1969 SCMR 299], [xi]. Mercantile Fire and General Insurance Co. of Pakistan Ltd. v. Messrs Imam and Imam Ltd. [1989 CLC 2117 Karachi], [xii]. Asghar Ali and 5 others v. Muhammad Ismail and 9 others [2017 YLR 423 Karachi], [xiii]. Saeed Allahwala v. Zam Zam Corporation/Federation of Pakistan through Secretary Ministry and 2 others [2017 MLD 249 Karachi] [ix]. Messrs Business Computing International (Pvt.) Ltd. v. IBM World Trade Corporation [1997 CLC 1903], [xiv]. Malik Riaz Ahmed and others v. Mian Inayat Ullah and others [1992 SCMR 1488].
53. Lastly, Mr. Khalid Mehmood Siddiqui while, concluding his arguments on the Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046/2013], forcefully contended that the Application under section 12[2], C.P.C. read with section 151, C.P.C., as 'framed' and 'filed' is not only mis-conceived', 'barred by law' but also devoid of merits, as such, the same is liable to be dismissed with cost, otherwise, the new Petitioner herein, shall be prejudiced seriously.
54. Head arguments and perused the record.
55. As far as, the contention of Mr. Khalid Mehmood Siddiqui, learned counsel for the new Petitioner regarding 'non-maintainability' of the Application under section 12[2], C.P.C. in the Constitution Petition is concerned, now it is a well-settled principle of law that the provisions of Civil Procedure Code are applicable to the Constitution Petitions. In view of this position, it can safely be said that section 12[2], C.P.C., as being part of Civil Procedure Code [Act V of 1908], is also applicable to the Constitution Petitions. The next point which Mr. Khalid Mehmood Siddiqui, urged, is that the Application under section 12[2], C.P.C., read with section 151, C.P.C., is time barred, as it has been filed beyond a period of 3 years limitation, as provided under Article 181 of the Limitation Act, 1908 [IX of 1908]. In the case in hand, it is 'significant to note' that the 'so-called' 'General Attorney' of a dead person, as per record, has failed to disclose the factum of death of Mrs. Sugrabai wife of Yousufali Sadik [taken place on 04.07.2002] in the Memo of Petition filed on 31.10.2003. This being the position, all orders passed/obtained in the instant Constitution Petition by way of ' fraud' and 'mis-representation', are illegal/nullity in law and void ab initio. Against such void orders, no period of limitation runs. At this juncture, we would like to also reproduce herein Article 181 of the Limitation Act, 1908 [IX of 1908], which reads as follows:
Description of application
Period of limitation
Time from which period begins to run
181. Application for which no period of limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908
Three years
When the right to apply accrues.
56. Manifestly, in the case in hand, 'cause of action' has accrued in favour of Respopdents/Applicants herein, as soon as an 'Amended Title' was filed on 29.04.2011, i.e. 'pursuant' to and in 'compliance with' order dated 21.04.2011. Under the said order, Mrs. Sugrabai wife of Yousufali Sadik, was replaced by the present new Petitioner, Ghulam Nabi Qureshi son of Muhammad Ibrahim. Mrs. Sugrabai wife of Yousufali Sadik, it is significant to note, had passed away on 04.07.2002. The new Petitioner/'so- called' 'General Attorney' of Mrs. Sugrabai wife of Yousufali Sadik, however, without disclosing the factum of such death, not only filed instant Constitution Petition on 31.10.2003, against a dead person but also thereafter remained continue to obtain orders 'ex-facie' by way of playing ' fraud' and 'mis-representation' upon this court. In view of this position, as well, not only, the filing of the instant Constitution Petition is nullity, but all orders obtained herein, is the outcome of 'fraud' and 'mis representation', as such, the same are void ab initio and of no legal effect. The question of limitation under such circumstances, does not arise. The contention of Mr. Khalid Mehmood Siddiqui, regarding 'non-maintainability ' of the Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], in Constitution Petitions or otherwise, as alleged, is barred by limitation, in our view, is not only 'mis-conceived' but also 'mis-leading'. Reliance in this regard can be placed on the case of Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid [1993 SCMR 1171].
"4. It is well-settled that the provisions of the Code of Civil Procedure are applicable to Constitution petitions filed in the High Court. Section 12(2), C.P.C. being a purl of it will be applicable...."
57. To see as to whether Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], filed by the Respondents/Applicants herein is hit by the doctrine of res-judicata, or the position remains otherwise, Section 11, C.P.C. being relevant, in this regard is reproduced herein-below:-
. . .
11. Res Judicata.---No Court shall try suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.---The expression 'former suit" shall denote a Suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.---For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly, or impliedly by the other.
Explanation IV.---Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue -in such suit.
Explanation V.---Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI.---Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating.
58. Upon perusal of the provisions of section 11, C.P.C., we are of the considered view that neither the doctrine of 'res-judicata' and/or the 'principle of estoppel', as contended by Mr. Khalid Mehmood Siddiqui, is applicable to the present case, because in the case in hand, either no issue between the parties has been adjudicated or otherwise, inconsistent assertions/pleas have been raised which can be said, as precluded under the 'principle of estoppel'. Needless to say, in Suit No.554 of 2007 [Ghulam Nabi Qureshi v. Fazal Yousuf Sadik and 4 others], filed by the Petitioner herein, for 'SPECIFIC PERFORMANCE OF AGREEMENT DATED 04.04.1979' against the legal heirs of Mrs. Sugrabai wife of Yousufali Sadik, the Respondents/Applicants herein, were not parties to the said suit. Even the 'Compromise Decree' dated 12.10.2007, passed in Suit No.554 of 2007, is of no legal effect, as far as, Respondents/Applicants herein, are concerned.
59. The stand of Mr. Khalid Mehmood Siddiqui that the 'General
Power' of Attorney, in the case in hand, is protected under Section 202 of Contract Act, 1872, as it is 'coupled with interest', under given circumstances, cannot be accepted, as this stand is not only 'self-contradictory' but also 'self-conflicting. For the sake of arguments, even if, it is presumed so, then a question would arise as to why this Petition No.D- 1372 of 2003, was filed on behalf of a 'dead person' and not by the 'General Attorney' himself. Further, in view of the condition contained in Order III, Rule 4[2], C.P.C., every appointment of a pleader ceases to have force, upon the death of a client. Further, to see as to whether 'General Power of Attorney' dated 04.04.1979, on the basis whereof, the instant Petition was filed on 31.10.2003, i.e. on behalf of dead person, Mrs. Sugrabai wife of Yousufali Sadik is 'irrevocable' and 'coupled with any interest' as contended by Mr. Khalid Mehmood Siddiqui or the position is otherwise. For this purpose, 'General Power of Attorney' dated 04.04.1979, is reproduced herein-below:-
GENERAL POWER OF ATTORNEY.
TO ALL TO WHOM THESE PRESENTS SHALL COME, I, Mst. Sugrabai wife of Yusifali Sadik, Muslim, adult, residing at F.T1/7, Bath Island [P.S. FrereJ Karachi, SEND GREETINGS:
WHEREAS I am seized and possessed of occupancy rights in the Plot of land No.112 measuring 0.69 acres with the Bungalow constructed thereon situate at Depot Lines in the Cantonment Area, Karachi, hereinafter referred to as 'the said property';
AND WHEREAS I am intending to assign and transfer all my rights in the said property and being personally unable to carry out certain obligations as contained in the agreement, I am desirous of appointing some fit and proper person to act for me in the premises;
NOW KNOW YE AND THESE PRESENTS WITNESSETH: that I, the said Mst. Sugrabai wife of Yusifali Sadik do hereby constitute, nominate and appoint Mr. Ghulam Nabi Qureshi son of Mr. Mohammed Ibrahim, resident of B-227/6, Gulshan-e-Iqbal, Karachi, to be my true and lawful attorney to act for me in my name and on my behalf and to do the following acts, deeds, matters and things that is to say:-
1. To admit and/or eject tenants, to receive rents from the tenants, make necessary proceedings for the recovery of the same and ejectment and take over possession of the portions and the entire property when vacated by the existing tenants, retain and utilize such possession.
2. To apply for and obtain permission from Military Estates Officer and other concerned Authority for assignment and transfer of my occupancy rights in the said property and to carry out all directions in this connection, to pay such amounts as may be demanded for the said purpose and to sign and deliver statements, affidavits and such other necessary and required deeds and documents for me and in my name to all intents and purposes as my said Attorney may think fit or be advised.
3. To apply for commercialization of the said property from the Government of Pakistan and authorities of Military Lands and for that purpose to sign and deliver necessary applications on payment of necessary fees and charges for the purpose of execute such deeds and documents for surrender of the rights under the existing tenure and to obtain and execute lease and/or other deeds and documents on the tenure being converted to commercial purposes and to appear before the competent Registering Authority to admit execution of such deeds as may be executed by the said Attorney for me and in my name.
4. To represent me before all courts and officers as well as persons, make statements, commitments, etc. negotiate for the better management of my property subject to the safeguarding of my interest.
5. To appoint Advocates, agents, attorneys with such powers as herein contained.
6. To do all other acts, deeds, matters and things, necessary or incidental to the powers hereby granted, as i f I could do personally.
I HEREBY AGREE AND UNDERTAKE to ratify and confirm whatever my said Attorney shall lawfully do by virtue of these presents and I also hereby declare the Power of Attorney to be irrevocable.
IN WITNESS WHEREOF I have put my signature at Karachi this 4th day of April 1979.
60. The aforesaid registered 'General Power of Attorney'. is not 'coupled with any interest', as contended by Mr. Khalid Mehmood Siddiqui. Besides, from the aforesaid registered General Power of Attorney dated 04.04.1979, it cannot be presumed that it contains any power on the strength whereof, the so-called 'General Attorney', Ghulam Nabi Qureshi son of Muhammad Ibrahim, in any manner, is empowered to 'alienate'/'dispose of the 'subject property', to himself. In the case in hand, the agent viz. Ghulam Nabi Qureshi son of Muhammad Ibrahim, claims that the 'subject property' was purchased by him through 'Sale Agreement' dated 04.04.1979. The 'General Power of Attorney' in the case in hand, does not confer any right on the 'General Attorney' to alienate the principle's property in his name. On this aspect of the matter, reference can be made to the case of Fida Muhammad v. Pir Muhammad Khan (Deceased) through Legal Heirs and others [PLD 1985 Supreme Court 341], wherein, it was observed as follows:-
. . .
"It is wrong to assume that every "general" Power-of-Attorney on account of the said description means and includes the power to alienate/dispose of property of the principal! In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the Power-of-Attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not. be readily deduceable from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation.
The second aspect which needs caution on question of validity of acts under a Power-of-Attorney is that notwithstanding an authority to alienate principal's property, the Attorney is not absolved from his two essential obligations, amongst others:- firstly, in cases of difficulty (and it will be a case of difficulty if the Power-of-Attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction." [Underlining is ours]
61. Significantly, in a legal proceeding, filed on behalf of a dead person, court has no jurisdiction either to grant an Application under Order I, Rule 10, C.P.C. or Application under Order XXII, Rule 3, C.P.C. Even, in such like situation, 'bona fides' or 'mala fides' become 'immaterial' if the proceeding itself is nullity, as the case in hand is. As far as, the contention of Mr. Khalid Mehmood Siddiqui regarding 'mutation' of the 'subject property' in favour of the new Petitioner is concerned, it is worth to note, that mere 'mutation' does not confer any 'title' upon a person in whose name a property is mutated. In this case, 'mutation' seemingly has been effected in favour of the new Petitioner in 'compliance with' a 'consent decree' of 12.11.2007, passed in Suit No.554 of 2007 [Ghulam Nabi Qureshi v. Fazal Yousuf Sadik and 4 others], by Vth Senior Civil Judge [South], Karachi. On the point of 'mutation', reference can be placed to the case of Muhammad Akram and another v. Altaf Ahmed [PLD 2003 SC 688], wherein in 'Para 8', it was observed as follows:-
. . .
"8. It is a settled principle of law that a mutation confers no title. Once a mutation is challenged, the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted into the entry or attestation of such mutation(s) in dispute. This often repeated principle of law is quite logical because a mutation not being a title' deed, is merely an evidence of some original transaction between the parties that had been struck somewhere prior to entry of a mutation. Respondent Altaf Ahmed has utterly failed to revert back to any transaction and bring on record any oral or documentary evidence thereof. The burden squarely lay on him to prove the transaction because the existence thereof has throughout been alleged by him in affirmative. He was bound to fail in the event of the non proof of transaction. Only the trial Court realized it." [Emphasis added]
. . .
62. Needless to say, the present case, is not only a case of 'fraud' but also of 'mis-representation'. The 'General Attorney', Ghulam Nabi Qureshi son of Muhammad Ibrahim, has not only filed the instant Petition in competently, but also by way of playing 'fraud' and 'mis-representation' upon this Court, has succeeded to obtain various orders in this Constitution Petition, filed on behalf of a dead person. Nonetheless, all such orders obtained by way of 'fraud' and 'mis-representation' from its very inception are not only void but also of no legal effect. In this regard definition of 'fraud' and 'mis-representation' from Black Law Dictionary, Fifth Addition, is reproduced herein-below:-
[a] Fraud:
A false representation of a matter of fact whether by words or by conduct, by false or mis-leading allegations, or by concealment of that which should have been disclosed which deceives and is intended to deceive another so that he shall act upon it to his legal injury...A generic term, embracing all multifarious means which human ingenuity can devise, and which are restored to by on individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, tric, cunning, dissembling, and any unfair way by which another is cheated".
[b] Mis-representation:
Any manifestation by words or other conduct by one person to another that, under circumstances, amounts to an assertion not in accordance with facts. An un-true statement of fact. An incorrect or false representation, that if accepted, leads the mind to an apprehension of condition other and different from which that exists. Colloquially it is understood to mean a statement made a deceive or mis-lead."
63. Manifestly, all orders, obtained/passed in the instant petition are the outcome of 'fraud' and mis-representation' as the proceeding filed on behalf of a dead person is nullity in law. Any order obtained by way of practicing 'fraud' and 'mis-representation' upon the Court, in no circumstances, can be allowed to stand on record, otherwise, the party who commits 'fraud' and 'mis-representation' would deem to be encouraged. Needless to say, against a void order, no period of limitation is to run. On this aspect of the matter, reliance can be placed on the case of Rehmatullah and others v. Saleh Khan and others [2007 SCMR 729], wherein, it was held/observed as follows:-
. . .
"4...It is settled law when the basic order is without lawful authority then all the super structure shall fall on the ground automatically as law laid down by this Court in Yousaf Ali's case PLD 1958 SC 104 and Crescent Sugar Mills' case PLD 1982 Lah.
1. It is by now settled law that limitation cannot run against void order. See Pakistan Post Office's case 1987 SCMR' 1119, Raja Muhammad Fazil Khan's case PLD 1975 SC 331 and Muhammad Masihuzzaman's case PLD 1992 SC 825. It is also settled law that question of limitation does not arise in inheritance cases. See Mst. Fazal Jan's case PLD 1992 SC 811 and Ghulam Ali's case PLD 1990 SC 1. It is pertinent to mention here that fraud vitiates even solemn orders as held by this Court in Muhammad Fazil Khan's case (Supra). It is settled law that for non-impleading of party, suit cannot be dismissed as law laid down by this Court in Central Government of Pakistan's case. PLD 1992 SC 590. It is admitted fact that both the Courts below had held that mutation was proved to be fraudulent and thus, it was a question of fact on which both the Courts below including the High Court had rightly come to a conclusion to declare mutation as not genuine." [Emphasis added]
. . .
64. 'Fraud' and 'mis-representation' since, vitiate the most solemn proceedings, as such, a court of competent jurisdiction, even 'suo motu' can recall/set-aside ' orders'/' decrees' that have been obtained from a court, if any, by way of 'fraud' and 'mis-representations. In the case in hand, since all orders have been obtained by way of 'fraud' and ' mis-representation', as such, all such orders are liable to be re-called/set-aside. Even, the Constitution Petition in hand is not only erroneous/nullity but also in competent in law, as such, the same is also liable to be dismissed. In this regard, reference can be placed on the case of Government of Sindh through Chief Secretary and others v. Khalil Ahmed and others [1994 SCMR 782]. The relevant 'excerpt' therefrom, reads as follows:-
"Lastly, we are conscious of the general principle that fraud vitiates even the most solemn proceedings and that the courts of general jurisdiction are competent to suo motu recall decrees obtained from it by fraud, as held in Chief' Settlement Commissioner v. Muhammad Fazil (PLD 1975 SC 331) and ordinarily we would have remanded the case to the trial Court, for further proceedings, in the matter, but as the claim of the plaintiff is fraudulent which is apparent from the record, the remand of the case in our view would be sheer wastage of time and merely an exercise in futility.
For the foregoing reasons, we accept this appeal set aside the impugned judgments and decrees passed by the learned Judge of the Sindh High Court and dismiss plaintiff's suit with costs throughout." [Emphasis added]
65. The case laws, cited by learned DAG are not only relevant but also fully support the case of the Respondents/Applicants herein. On the other hand, as far as, the case laws, cited by Mr. Khalid Mehmood Siddiqui, learned counsel for the new Petitioner, are concerned, the same besides, being distinguishable, do not support the case of the Petitioner herein.
66. For and in view of the foregoing discussion, we while, allowing the Application under section 12[2], C.P.C. read with section 151, C.P.C. [C.M.A. No.24046 of 2013], not only 'set-asides/recall' order dated 11.05.2004, whereby, the instant Constitution Petition was 'allowed'/'disposed of but all other orders including order dated 23.2.2012, based thereon, as well. Like-wise, the main Constitution Petition No.D-1372 of 2003, filed on 31.10.2003, by the so-called 'General Attorney'/present new Petitioner, on behalf of a dead person [admittedly passed away on 04.07.2002 i.e. much before filing of the instant Constitution Petition], in our considered view, is not only erroneous/nullity but also in-competent in law, the same, as such, is also dismissed, however, with no order as to cost. All pending application[s] having become infructuous also stand dismissed.
ZC/G-32/Sindh Petition allowed.