Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Sindh High Court on 2023-12-06, officially reported as 2023 SHC 1122. In this matter between Cantonment Board Clifton and Nadim Ahmed Ansari, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

Court Name: Sindh High Court Judge(s): Muhammad Shafi Siddiqui, Jawad Akbar Sarwana Title: Cantonment Board Clifton vs Nadim Ahmed Ansari Case No.: High Court Appeal No.145 of 2018 Date of Judgment:2023-12-06 Reported As: 2023 SHC 1122, PLD 2025 Sindh 36 Result: Appeal Dismissed

JUDGMENT

JUDGMENT Jawad A. Sarwana, J. The Appellant/Defendant ("Cantonment Board Clifton" / "CBC") has challenged the Judgment and Decree dated 10.04.2018 of the High Court of Sindh at Karachi in Civil Suit No.263/2009 filed by Respondent/Plaintiff, Nadim Ahmed Ansari against CBC. All the communications exchanged by Nadim Ahmed Ansari with CBC were on the letterhead of "NAA Consulting Engineers" as he was doing business in the name of "NAA Consulting Engineers". Therefore, the Respondent/Plaintiff hereinafter is referred to as "NAA Consulting Engineers" and/or "NAA" interchangeably. The learned Single Judge passed a money decree against CBC for compensation for services rendered by NAA to CBC in the sum of Rs.11,300,000 with interest at the rate of 10% p.a. from the date of filing of the suit till the date of recovery. During the pendency of the suit, Nadeem Ahmed Ansari passed away whereafter the suit continued against CBC through his legal heirs, (i) Mrs Simi Nadeem Ansari, (ii) Hassan Ahmed Ansari, (iii) Mrs Hira Nadeem Ahmed Ansari, (iv) Ms Nida Shah Zaib Siddiqui. 2. The brief facts of Suit No.263/2009, which the learned Single Judge has discussed in detail in the impugned Judgment, are that CBC requested NAA Consulting Engineers in writing to carry out certain financial and technical consultancy services involving surveying, planning, technical, designing, drawing and engineering estimates in relation to several development schemes within the jurisdiction of the CBC regarding: (a) stormwater drainage design (Ex."5/2" and "5/5"); (b) sewerage upgradation (Ex."5/2" and "5/5"); (c) revamping of urban infrastructure of Katchi Abadies (Ex."5/3"); (d) design of internal roads in Clifton Block 6 (Ex."5/8");

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(e) planning, design and preparation of bill of quantities for improvement of CBC Fire Station at Submarine Chowrangi, Clifton, Karachi (Ex."5/4"); (f) bill of quantities for (a), (b), and (d) above (Ex."5/9"), etc. 3. Based on CBC's above-referred work orders from (a) to (f), NAA Consulting Engineers commenced work on the matter. The work orders involved meetings with CBC from time to time, following up on the matters post-meetings, and submitting revised, updated or fresh cost estimates, drawings, work, and reports, as the case may be (Ex."5/6", "5/7", etc.). 4. After completing the assignment, NAA submitted four (4) invoices in relation to services rendered, totalling Rs.11,300,000 (Ex."5/10"); however, CBC did not settle the invoices. NAA kept writing to them but without any positive results (Ex."5/12" and (Ex."5/13"). Consequently, NAA Consulting Engineers served on CBC a legal notice dated 17.01.2009 (produced as Ex. No."5/11"). CBC did not reply to the said legal notice, and on 11.02.2009, NAA filed a civil suit for recovery against CBC. Service was effected on CBC on 25.03.2009 and held valid by the Additional Registrar (OS) on 28.04.2009. Thereafter, CBC's lawyer filed his Vakalatnama on 14.09.2009, followed by CBC's Written Statement on 26.10.2009. 5. The Court settled issues on 26.04.2010, whereafter the Commissioner for Recording Evidence commenced recording of evidence. The Commissioner returned the record of evidence to the Court on 03.09.2012, the learned Single Judge heard final arguments and passed the impugned Judgment and Decree. The learned Counsel for NAA has argued that the claim against CBC has been proved and that the Judgment and Decree passed in Suit No.263/2009 are proper and liable to be upheld. CBC's primary challenge to the impugned Judgment and decree is that the suit was filed contrary to Section 273 of the Cantonments Act, 1924, NAA did not render any service to CBC, is not entitled to the amount claimed along with markup, and the civil suit filed against CBC ought to have been dismissed by the learned Single Judge. 6. As mentioned above, CBC has challenged in their appeal the maintainability of the suit filed by NAA against them arguing that the suit as filed was contrary to Section 273 of the Cantonments Act, 1924 (hereinafter referred to as "Section 273"). Section 273 of the Cantonments Act, 1924, reads as follows: "Section 273. Notice to be given of suits. (1) No suit shall be instituted against any [Board] or against any member of a Board, or against any officer or servant of a [Board], in respect of any act done, or purporting to have been done, in pursuance of this Act or of any rule or bye-law made thereunder, until the expiration of two months after notice in writing has been left at the office of the [Board], and, in the case of such member officer or servant, unless notice in writing has also been delivered to him or left at his office or place of abode, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and unless the plaint contains a statement that such notice has been so delivered or left. (2) If the [Board], member, officer or servant has, before the suit is instituted, tendered sufficient amends to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered, and shall also pay all costs incurred by the defendant after such tender. (3) No suit, such as is described in sub-section (1), shall, unless it is an action for the recovery of immoveable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises. (4) Nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit or proceeding." (bold highlight added for emphasis)

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7. Before we turn to further discussion of Section 273, certain facts must be addressed first. These facts are important to keep in mind when considering CBC's plea that Section 273 mandatorily provides that a suit can only be filed after the expiry of the period of two months from the date of the notice and Civil Suit No.263/2009 filed earlier in time was barred under Section 273. First, as pointed out by the learned Single Judge, it is evident from the perusal of the Written Statement filed by CBC that the Board never raised the Section 273 plea in the Written Statement. There is no mention of Section 273 at all in the written statement. CBC first raised the issue of Section 273 belatedly in their Affidavit in Evidence. Secondly, it is not CBC's case that NAA did not at all give notice to CBC before filing the civil suit against CBC. In fact, NAA followed up on its outstanding payment due from CBC by letters dated 23.07.2008, attaching the four invoices (produced as Ex. No. "5/10") and finally delivered a Legal Notice to CBC by letter dated 17.01.2009 (produced as Ex. No."5/11"). Without waiting for the expiry of two months from the date of the legal notice dated 17.01.2009, NAA filed his claim in the High Court after 25 days from the date of the notice, i.e. on 11.02.2009. As the learned Single Judge mentioned, CBC has not denied in their Written Statement and during evidence that CBC did not receive the Legal Notice. Two points emerge from this: (i) NAA had no knowledge of CBC's plea under Section 273 until after several years had passed from the date of filing of the suit, and (ii) the Plaintiff served the notice on CBC but did not wait for two months before filing the civil suit. 8. The learned Single Judge has observed that if CBC had raised the issue of Section 273 in their Written Statement or even challenged the maintainability of the civil suit by way of an interlocutory application or otherwise, then NAA could have remedied the situation, as it still had time to do so. The Superior Courts of Pakistan have held in several judgments that a Defendant's objections to a defective Plaint based on a procedural short-coming, if any, committed at the initial stage of a suit would not by itself defeat the suit when a subsequent authorization confirmation and post facto approval of acts done would make the institution of the suit valid and lawful. In cases with some technical defect, the Plaintiff may also remedy it on his own.[1] In the present case, as the learned Single Judge pointed out, the Legal Notice had been served on CBC, and CBC did not file its Written Statement until 26.10.2009. He observed that had CBC raised the objection in the Written Statement, NAA could have withdrawn the suit with permission of the Court and presented it again at a later date within time. The learned Single Judge appears to imply that this defect was curable subject to the timing of its identification. 9. In Haji Abdul Aziz v. Karachi Port Trust and Another, 2010 MLD 1916, the learned Single Judge, Mr. Justice Hani Muslim, who was subsequently elevated to the Supreme Court of Pakistan,[2] dealing with Section 87 of the KPT Act, 1886[3], which provision is similar to Section 273 of the Cantonments Act, 1924, held that a defect such as not giving notice (under Section 87 of KPT Act) was otherwise curable and the Court below should have granted time to the applicant to cure such defect instead of rejecting the Plaint. Although perhaps not articulated expressly, the learned Single Judge appears to suggest a constructive waiver on the part of KPT. When CBC did not raise the plea of Section 273 of want of notice in its Written Statement, it may be said that CBC waived the requirement. The learned Single Judge's view carries weight, and the view that the provisions of Section 273 and waiver can stand together is well-established by the Privy Council in the case of Vallayan Chettiar v. Government of the Province of Madras, AIR 1947 PC 197, in the following terms: "There is no inconsistency between the propositions that the provisions of the section are mandatory and must be enforced by the Court and that they may be waived by the Authority for whose benefit they are provided," Therefore, when CBC remained silent in its Written Statement about Section 273, CBC implicitly waived the protection under Section 273. It was estopped from raising the plea subsequently which

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as discussed earlier, was a curable defect. 10. The learned Single Judge also examined Section 273 from the angle of contract (Page 5 of the impugned Judgment). NAA had rendered services to CBC, and CBC had benefitted from the same. NAA was claiming a contractual right for compensation, and that right could not be rejected based on the facts at hand, particularly when NAA had served the statutory notice to CBC, except that he did not wait out the 2-month period before filing the suit. This situation differed entirely from total non-compliance of Section 273(1), and CBC's plea would sidestep substantial justice between parties as a matter of contract.[4] In support of his reasoning, the learned Single Judge relied on paragraph 12 of B. Ram Chander Sahai v. Cantonment Board of Meerut, AIR (34) 1947 42, which is reproduced in the impugned Judgment. 11. Notwithstanding the above reasons cited by the learned Single Judge on why CBC could not raise the plea of Section 273, we would now like to turn to the issue of the types of suits to which Section 273 is applicable and whether Section 273 applies to NAA's suit for compensation for services rendered to CBC. In this context, it is necessary to see the scope, spirit and purpose of Section 273, under which the provision for prior notice has been mandated. To this end, we propose to focus on the interpretation of Sections 273(1) and 273(4), including the use of the phrases: "relief claimed in an injunction", "in pursuance of the Act", and "the amount of compensation claimed." 12. Pakistan Courts have held that notice to the Board and compliance with Section 273(1) is mandatory for a suit for declaration.[5] NAA's suit is one for compensation for services rendered and not for declaration. We also have sight of several Judgments of the Supreme Court of Pakistan wherein the apex Court has consistently held that no prior notice will be necessary in the case of a suit against the Board in which the only relief claimed is an injunction of which the object would be defeated by giving of a notice or the postponement of the institution of the suit or proceedings. This is also consistent with the wording of Section 273(4), which provides that Section 273 shall not apply to a suit in which the only relief claimed is an injunction.[6] In the case at hand, NAA filed a suit for compensation for services rendered to CBC. NAA did not seek any relief of injunction; hence, it cannot take the plea of 273(4). Therefore, it still remains to be considered if Section 273(1) applies to NAA's claim. In Lahore Cantonment Cooperative Housing Society v. Messrs Builders and Developers (Pvt.) Ltd., PLD 1999 Lahore 305, the Plaintiff-Developer had filed a suit against the Lahore Cantonment Housing Society as the latter had built a wall blocking the Plaintiff Developer's access to pass. As the Plaint concerned the relief of injunction, the Division Bench of the Lahore High Court held that such Section 273 could not be applicable. However, the Division Bench also examined Section 70 of the Cooperative Societies Act of 1925,[7] which also contains a provision similar to Section 273. The Division Bench observed that Section 70 of the Cooperative Societies Act, 1925, specifically mentioned that one of the conditions of applicability of Section 70 is that the dispute must relate to the business of the society. Thus, for notice to be served, the dispute must be relatable to the business of the society. Once again, the wording of Section 273 is different from Section 70 of the Cooperative Societies Act, 1925. Unlike Section 70 of the Cooperative Societies Act of 1925, which contains an express reference to "business of the society," the Cantonments Act, 1924, contains no such reference. Therefore, it cannot be said that the subject matter of NAA's suit - a commercial transaction between NAA and CBC - is a part of the business of CBC, and a notice under Section 273 was necessary. 13. In the instant case, the dispute between the parties concerned neither declaration nor injunction. The subject matter of the civil suit filed by NAA against CBC was purely compensation for services rendered. One of the defences taken by CBC was that the Board of CBC did not sanction the work orders. The learned Single Judge did not take up this point in the impugned Judgment. There is a line of judicial precedents that a bar of Section 273 may not be sustained (to be read as "does not apply") when it could be shown that the impugned order passed was either

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malafide or the act (actions/inactions) was done wrongfully under the Act. In all such cases, the bar of Section 273 would not apply.[8] In the case at hand, CBC raised the plea in their Written Statement and Affidavit in Evidence that "the record shows that there is no sanction of the Board for hiring services of the Plaintiff as mentioned in the Plaint (Paragraph 3 of CBC's Written Statement as well as the Affidavit in Evidence)." If this is CBC's defence, then as the language of Section 273(1) suggests, the action was not done under the Cantonments Act of 1924. In order words, it was bereft of statutory sanction and, therefore, beyond the Cantonments Act of 1924. For this reason, CBC's actions were not in pursuance of the Act. Thus, NAA's suit for compensation for services rendered was/is not hit by Section 273, and consequently, Civil Suit No.263/2009 was filed validly against CBC. 14. Be that as it may, alternatively, there is another argument. Those civil actions which are beyond the parameters of the Act could not be eclipsed by the bar on suits under Section 273. It may be noted that the language of Section 273(1) suggests that notice is required to be given in a suit against CBC, in respect of any act done, or purporting to have been done, in pursuance of the Cantonments Act, 1924 or of any rule or bye-law made thereunder. This means that the bar of Section 273(1) would be attracted where the impugned action was done or purported to have been done in pursuance of the Act or any rule or bye-law. The only authority which we have found (and also relied upon by the Plaintiff and acknowledged by CBC in paragraph (f) in the Grounds of the Appeal) wherein a Court of the Indian Subcontinent had to interpret Section 273 in a suit for compensation is the Division Bench Judgment of the Allahabad High Court reported as B. Ram Chander Sahai v. Cantonment Board of Meerut, AIR (34) 1947 Allahabad 42/MANU/UP/0403/1945. In this case, B. Ram Chander Sahai instituted a suit for recovery of Rs.2,500 against the Cantonment Board of Meerut. B. Ram Chander Sahai had given notice to the Board on 22.12.1938, whereas the suit was not filed until 19.09.1939, more than eight months after the cause of action had accrued. He claimed entitlement to the salary amount that the Board had allegedly withheld. One of the defences the Board took was that the suit was barred by limitation under the provisions of Section 273(3). The Division Bench had to consider whether a breach of contract or implied contract does or does not come within the protection of Section 273. In paragraph 16 of the B. Ram Chandar Sahai case (ibid.), the Division Bench observed as follows: "16. To apply the principle of this decision to the Cantonments Act we note that the Act requires that a Board should have an Executive Officer. It follows that the Board must appoint an Executive Officer and if in regard to the contract between such an Executive Officer and the Board there should arise a dispute, the Board will be entitled to the benefit of S. 273 of the Act. On the other hand, although S. 280, Cantonments Act provides for the making by the Central Government of rules relating to the appointment, control, supervision, suspension, removal, dismissal and punishment of servants of Boards, and although obviously the appointment of servants is necessary to enable the Board to perform its duties, there is nothing in the Act which enjoins upon the Board, that is, which makes it the duty of the Board to appoint a servant. It has the authority or power to make such appointment but it has not a corresponding duty." 15. The Division Bench of the Allahabad High Court also discussed another aspect of the matter in the B. Ram Chander Sahai case (ibid.). In paragraphs 31 and 32, the Division Bench observed as follows: 31. For the reasons we have given earlier, . . .[a] case of more directly applicable is [Cantonment Board Allahabad v. Hazari Lal Ganga Pd.] (34) 21 MANU/UP/0101/1934 : A.I.R. 1934 All. 436 (437): 56 All. 885 : 149 I.C. 49 : 1934 A.L.J. 805, in which it was held that a suit for recovery of the value of goods supplied to a Cantonment Board does not fall within the description of suits mentioned under S. 273 (1), Cantonments Act, and Art. 52, Limitation Act applies to such a suit. At page 807, Sulaiman J. remarked:

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"No doubt under S. 12, Cantonments Act a Cantonment Board is empowered to acquire and hold property both moveable and immovable and to contract. It is also clear that the purchase made by the Board was by virtue of the power vested in it under the Cantonments Act. But I am unable to regard the suit of the plaintiff against the Board as a suit in respect of an act done by the Board in pursuance of the Act itself as distinct from an act done in the exercise of the power granted to the Board under the Act." 32. We inter[pret] that Sulaiman, C.J. interpreted "act done by the Board in pursuance of the Act" as meaning an act enjoined upon the Board by the Act. The Full Bench case in [District Board, Allahabad v. Behari Lal] (36) 23 MANU/UP/0147/1935 : A.I.R. 1936 All. 18 (21) : 58 All. 569 : 160 I.C. 226 : 1935 A.L.J. 1214 (F.B.) was a case under S. 182 (1), District Boards Act. In the last paragraph of the leading judgment in this case, Sulaiman C.J. remarked: "I do not consider it necessary to refer to the English cases under the Public Authorities Protection Act, 1893 though it may be observed that it appears to have been generally held in England that private contracts entered into by public authorities would not be 'acts done in pursuance or execution of any Act of Parliament or of any public duty or authority, etc." 16. Thus, after discussing several reported judgments, the Division Bench of the Allahabad High Court came to the conclusion that the provisions of Section 273(1) did not apply to the case of Ram Chander Sahai, who claimed his salary from the Cantonment Board. 17. Applying the observations of the High Court of Allahabad (paragraphs 14 to 16 above), we do not find that the relationship between CBC and NAA, based on a contract between the parties, arising from the exchange of communications, concerns an act done in pursuance of the Cantonments Act, 1924. The duties, powers and functions of the Cantonment Board are provided under Chapter Nos.IV, VIII to XIII of Cantonments Act, 1924. None of these chapters specifies a duty upon CBC to obtain, through third-party vendors, such as NAA, etc., survey, planning, technical, designing, drawing and engineering estimates concerning various development schemes within the jurisdiction of CBC. Further, Sections 116 and 117 specifically enumerate the duties and discretionary functions of the Board, respectively. None of these services under the several work orders issued by CBC to NAA from time to time (as described above in paragraphs 2, 3 and 4) are enumerated as either duties or discretionary functions of the Board in the Act. Section 112 of the Cantonments Act, 1924, provides the competence for entering into a contract.[9] A learned Single Judge of the Lahore High Court, Mr Justice Ijaz Ahmed Chaudhry, later elevated to the Supreme Court of Pakistan, observed that the contracts permissible under Section 112 are contracts done in pursuance of the Act. As such "purpose of the Act" includes the duties and discretionary functions of the Board, which are laid down under Sections 116 and 117 of the Act.[10] As already discussed, reading the provisions of the Cantonments Act of 1924 leads us to only one conclusion: that the services described in the work orders were, at best, matters arising out of contract and not statutory obligations under Sections 116 and 117 of the Act. The work orders fall outside the statute's scope. 18. To illustrate the point, reference is made to CBC's work order for improving the fire station at the Subway Chawrangi, Karachi. We accept and have no doubt that the provision of fire-station services by CBC was an act in pursuance of the Cantonments Act, 1924, in this case, as part of the duties of the Board under Section 116(o).[11] Yet CBC seeking help and assistance from NAA to determine the engineering and financial cost to improve its fire station was neither a corresponding duty nor discretionary function nor an act done or purporting to have been done in pursuance of the Act. NAA was not contracted (sought out) by CBC to provide services in pursuance of Section 116(o) or any compulsory discretionary functions of the Board under Section 117. Further, CBC was also not outsourcing its statutory obligations to NAA as under Section 112 of the Act. In the above illustration, concerning the improvement of the fire station, CBC engaged NAA to find out how much money it would cost CBC to improve its fire station at Submarine Chawrangi

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(planning, design and preparation of bill of quantities) (Ex."5/4"). As a third-party contractor, NAA generated cost estimates for CBC perhaps to get an idea of the costs involved for improving the fire station before CBC invited tenders for the said project work from builders, contractors, etc. The engineering and financial cost estimation would have helped CBC determine a minimum price for carrying out the works and provided a context to decide the bids received for carrying out the improvement. By the time NAA issued legal notice to CBC, the work for which NAA designs were submitted, had already been executed and the contractors who executed these works had been paid by CBC. This is based on the evidence available on record, Ex. Nos."5/12" and "5/13" produced by NAA in support of this contention and unrebutted by CBC. Nothing in the Cantonments Act, 1924, mandates that CBC conduct such due diligence before upgrading a fire station. The due diligence activity is enumerated neither as duties under Section 116 nor as discretionary…

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