FAKIR ABDULLAH and others vs GOVERNMENT OF SINDH through Secretary to Government of Sindh, Revenue Department, Sindh Secretariat, Karachi and others

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.---In this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 request has been made by the petitioners for grant of leave to file appeal against judgment dated 3rd December, 1999 passed by High Court of Sindh, Hyderabad Circuit.

2. Succinctly stating facts of the case are that petitioners obtained an ex parte order/decree dated 19-2-1998 from the Court of First Senior Civil Judge, Mirpurkhas to the following effect:- "The plaintiffs' prayers for judgment and decree as under:--

(a) That the Honourable Court may be pleased to declare the Sindhri Taluka as legal demand of the plaintiffs and area people and its creation as Sindhri Taluka may also be declared as justified, proper, for public convenience, more assessable administrative facilities to the public and in the interest of smooth administration and in the interest and demand of area peoples and plaintiffs.

(b) That the Honourable Court may be pleased to declare the action and verbal orders of the defendants for abolition of Sindhri Taluka as illegal, mala fide, without lawful justification, without consent and notice of plaintiffs and are peoples, under political influence, against the interest and convenience of the area peoples and plaintiffs and also against the smooth running of administration and is null and void.

(c) That the Honourable Court may be pleased to grant permanent injunction against the defendants restraining and prohibiting them from implementation of abolition their subordinates, agents or by any means and manner whatsoever.

(d) Costs of the suit be borne by defendants.

(e) Any other relief this Honourale Court may deem fit and proper be awarded. This suit is coming for final disposal on 17-2-1998, before Mr. Manzoor Ahmed Memon, First Senior Civil Judge, Mirpurkhas in presence of plaintiff's advocate. Defendants are called absent (ex parte).

It is hereby ordered (by judgment) that the suit is decreed as prayed with no order as to cost. Given under my hand and seal of this 'Court'. On 19-2-1998." Later on petitioners sought execution of the above decree but the Executing Court declined to execute the decree principally for the reason that subsequently a notification dated 13th January, 1999 was issued by the respondents in pursuance whereof earlier notification dated 3rd January, 1998 regarding abolition of Sindhri Taluka was withdrawn with immediate effect, and as this notification was not subject-matter of the decree, execution whereof was being sought therefore, the issuance of fresh notification gave fresh cause of action to the decree-holder to file a fresh suit.

Against this order petitioners filed appeal which was dismissed by District Judge on 25th January, 1999. As such the petitioners filed revision petition under section 115, C.P.C. Before the High Court of Sindh, Hyderabad Circuit which has been dismissed vide impugned order. The concluding paragraph from the judgment is reproduced hereinbelow:-- "The judgment is dated 27-2-1997. The learned Judge had presumed that Government was not going to abolish Sindhri Taluka. The judgment and decree are based on wrong presumption.

Therefore the judgment and decree are defective and apart from that such a decree cannot be passed as under section 6 of Land Revenue Act such Taluka can be created. Section 56(d) of Specific Relief Act bars issuance of such injunctions. The trial Court and the Appellate Court have exercised their discretion in accordance with the law and therefore their orders cannot be disturbed in revision. The revision is therefore dismissed alognwith the listed applications."

3. Learned counsel for the petitioners contended that the executing Court was under legal obligation to execute the decree in letter and spirit and it has no jurisdiction to travel beyond its scope. Reliance in this behalf was placed by him on PLD 1965 SC 671; PLD 1965 Kar. 293; PLD 1978 Kar. 205; 1983 CLC 1204; PLD 1983 Lah. 445; PLD 1997 SC 3 and 1998 SCMR 151.

4. On the other hand Mr. Suleman Habibullah, learned Addl. A.-G. Appearing on Court's notice argued that decree dated 19-2-1998 obtained by petitioners was not executable firstly for the reason that petitioners have no legal character under section 42 of the Specific Relief Act to claim a decree in their favour restraining the administration not to discharge its functions according to the concerned law; secondly Court declined to execute the decree because in the meanwhile new notification dated 13th January, 1999 has been issued by the competent authority of the administration and in respect thereof no judicial order was passed, therefore, in such situation the Court seized with the matter had no option except to decline to execute the decree and thirdly the decree has not attained finality in the eye of law as it was passed by the trial Court without jurisdiction i,e, in violation of section 42 read with section 56(d) of Specific Relief Act.

5. We have considered the arguments so advanced by party's counsel in the light of contents of decree sought to be executed. At the very outset it is important to mention that petitioners sought relief from the Civil Court as probono publico but the ex parte judgment and decree does not indicate that out of huge population of the area how four persons came forward without filing a suit in representative capacity to demonstrate and establish that it is the demand of the plaintiffs and area people for allowing to remain Sindhri Taluka intact. In such-like situation the Court seized with the matter in fact instead of granting ex parte decree in a casual manner may have called upon the petitioners to legally justify themselves for the relief claimed by them. We may mention here that the Courts are not bound to issue directions in every case to the administrative functionaries to perform their functions accordingly unless it is shown that what is the interest of the person or persons who have come forward to claim such relief and if Court is not convinced from the justifications placed before it by the claimant to seek relief it can refuse either to grant the decree, as held by this Court in the case of Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192. Relevant para. Therefrom reproduced hereinbelow:-- "It is necessary in order to entitle a person to ask for the performance of any public duty by mandamus to show that he has some particular ground for claiming such performance, apart from the fact that he is interested in the performance of such duty as a member of class of persons all of whom are equally interested therein. As observed in the case of The Queen v. The Guardians of the Lewisham Union (1897) IQB 498 at 501, the Courts have never claimed to exercise a general power to enforce the performance of statutory duties by public bodies on the application of anybody who chooses to apply but have always required that an applicant should have a legal and specific right in him to enforce the performance of such duties."

6. There is no cavil with the proposition that a Court executing a decree ordinarily is not supposed to travel beyond its terms as held in number of judgments pronounced by superior Courts, few of them have been referred by the learned counsel for the petitioners in his arguments but simultaneously the executing Court while exercising jurisdiction under section 47, C.P.C. Can question the executability of a decree if it is satisfied that the decree is a nullity in the eye of law or it has been passed by a Court having no jurisdiction or the execution of the decree would not infringe the legal rights of the decree-holder if refused to be executed or the decree has been passed in violation of any provision of law, say as in the instant case apparently petitioners obtained an ex parte decree in their favour without showing that what was their legal character to institute the suit in terms of section 42 of the Specific Relief Act and if the relief so claimed by them is not granted how he/they will be prejudiced or if the Court came to conclusion that by granting the relief to the decree-holder the functioning of Government administration has been interfered with according to section 56(d) of Specific Relief Act. In this behalf reference from few of the judgments relied upon by the petitioner's counsel may be made: (i) Cantonment Board v. Kishan Lal AIR 1934 Allahabad 609, (ii) Alaat Hussain v. Mushtaq Ali AIR 1937 Allahabad 282, (iii) Messrs Haji Ahmed & Co. v. Muhammad Siddique and others PLD 1965 (W.P.) Karachi 293, (iv) Brig. (Reid.)

Muhammad Aslam Khan v. The Azad Government of the State of Jammu and Kashmir through the Secretary, Forest Department, Muzaffarabad and another 1983 CLC (SC (AJ&K) 1204, and (v)

Abbasia Cooperative Bank (now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3.

7. In view of principle of law discussed in the cited judgments we are inclined to observe that apparently in the instant case the Civil Court seized with the matter may have assumed jurisdiction to grant the relief as prayed for subject to its satisfaction as to whether the petitioners in individual capacity can represent large number of people of the area and what is their personal interest to seek the relief; secondly whether the Court is competent to grant the relief as claimed in the plaint particularly with reference to the aspects of the case wherein instead of challenging any notification the plaintiffs sought declaration and injunction against verbal instructions allegedly issued by the respondents to denotify Sindhri Taluaka. Inasmuch as during pendency of the suit and execution application on different occasions official respondents had been issuing and withdrawing notifications from time to time but no request was ever made by the petitioners to impugn them before the Courts. Above all on 13th January, 1999 last notification was issued in pursuance whereof an earlier notification dated 3-1-1998 was withdrawn but the petitioners did not bring this aspect of the matter the knowledge of the Court nor sought any relief against it for getting it annulled through process of law. Thus we are of the opinion that executing Court can take into consideration subsequent events even after passing of the decree in exercise of its jurisdiction under section 47, C.P.C. In order to ensure that the process of law may not be abused and the judicial pronouncements should be implemented effectively instead of making them ineffective on account of their in executability. Therefore, in our opinion learned High Court has rightly refused to execute the decree because after its passing it has become in executable on account of subsequent event taking place on 13th January, 1999 when latest notification de-notifying the Taluka of Sindhri was issued. In view of what has been stated hereinabove no interference in the impugned order is called for.

Therefore, petition is dismissed and leave to file appeal is refused.