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Petitioner: HUSSAIN A. HAROON and others VS Respondent: Mrs. LAILA SARFRAZ and others
Court Name: Sindh High Court Judge(s): Shabbir Ahmed, Azizullah M. Memon Title: HUSSAIN A. HAROON and others vs Mrs. LAILA SARFRAZ and others Case No.:High Court Appeals Nos.315, 318 of 2000 and 3 of 2001High Court Appeal
JUDGMENT
Reported As: 2003 CLC 771 Result: Appeals dismissed Judgment JUDGMENT ' SHABBIR AHMED, J.--- The above appeals have been filed by the defendants Nos.1 and 2 (for short-Mutawallis) and Muhammad Hanif (for short the contractor) against order dated 10-10-2000 passed by learned Single Judge on C.M.A. No,179 of 2000 under Order 39, rules 1 and 2, C.P.C. Read with section 151, C.P.C. Filed in Suit No,596 of 1998 filed by respondents Nos.1 to 6 (for short beneficiaries) against Mutawallis and their servants for declaration, accounts and permanent injunction with the prayer that Mutawalli Hussain Haroon be restrained from carrying out any development or construction on Survey Nos.3, 5, 6, 7, 8 and 10 of SB-5 situated on Abdullah Haroon Road, Karachi, admeasuring about 6195 sq. Yds. (for short subject plot) through his agents, servants, contractors, partners or associates. The application was contested by the Mutawalli Hussain Haroon by filing verbose counter-affidavit. ' The learned Single Judge after hearing the learned counsel, representing the parties granted the application by suspending the building contract between Mutawallis and the builder. 2. In order to appreciate the respective contentions that have been raised on behalf of the parties, it would be proper to recapitulate the factual background. ' Lady Nusrat Khanum, (2) Rabianbai Senior, (3) Rabianbai Junior widows of Haji Sir Abdullah Haroon (for short-executants) dedicated through a Wakf deed dated 30th April, 1943, their properties detailed in schedule, by divesting themselves of their respective shares for the maintenance and benefit of (a) executants Nos.2 and 3, namely, Rabianbai Senior and Rabianbai Junior, (b) the sons and daughters of Haji Sir Abdullah Haroon, namely (1) Yusuf, (2) Mahmood, (3)
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Saeed, (4) Zulekhanbai, (5) Daulat Khanum, (6) Shaukat. Khanum, (7) ZinatKhanum, (8) Afsar Khanum and (9) Laila Khanum, (c) for the sons, unmarried daughters and widows of the said sons of Haji Sir Abdullah Haroon, (d) for the sons and unmarried daughters of the said daughters, (e) for the sons unmarried daughters and widows of the lineal male descendants of the said sons of Haji Sir Abdullah Haroon and for the sons unmarried daughters and widows of the lineal male descendants of sons of the said daughters of Haji Sir Abdullah Haroon from generation to generation and in perpetuity, (0 ultimately for the benefit of religious and/or charitable purposes. The said Waqf was styled as "Haji Sir Abdullah Haroon Waqf No,2". Under the deed, (1) Lady Nusrat Khanum Haroon, (2) Yousuf Haroon and (3) Mahmood Haroon were appointed Mutawallis, whereas, Saeed Haroon being minor, on his attaining majority, also become one of the Mutawallis. It was one of the terms that on the death or voluntary retirement of Lady Nusrat Khanum Haroon, no person shall be appointed to act as Mutawalli in her place, and the surviving Mutawallis shall continue as Mutawallis, with further conditions that on the death of any of the sons, the eldest lineal male descendent of such son shall succeed him as Mutawalli and on the death of such successor, such successor's eldest lineal male descendent shall succeed him as Mutawalli and this shall continue from generation to generation and in perpetuity. ' In terms of deed, presently Yousuf Haroon, Mahmood Haroon and Hussain Haroon are Mutawallis of the Wakf, with powers of management of the Wakf properties including power to let the same on rent subject to the reservations that the Mutawallis shall have no power to let the Wakf properties or any part thereof on a lease for a period longer than three years without the leave of the Court. They are also empowered to employ staff and other qualified persons for collections of rents, etc. Property No,3 of the Schedule, i,e, old residential house of Haji Sir Abdullah Haroon, ground floor and outhouses attached thereto that were in occupation of the executants Nos.2 and 3, whereas, 1st floor was occasionally occupied by other member of family of Haji Sir Abdullah Haroon. It was expressly declared and directed that Mutawallis shall not let on rent the said property and shall reserve the same in perpetuity for the use and residence of the executants Nos.2 and 3 and for the use and residence of sons of their lineal male descendants in perpetuity. All taxes, costs of repairs and income-tax payable in respect of the property were to be paid from the income of the rest of the Wakf properties and shall likewise set apart such. The net residue of the rents and profits of the Wakf properties were to be distributed amongst the persons (beneficiaries) detailed with their respective share in para. 18 of the deed for their maintenance. ' The. Wakf properties are as follows:-- (1) Plot of land with buildings thereon bearing Survey No,156 Sheet M.R.I measuring 734 sq. Yards situated in Market Quarter, Karachi valued atRs,70,000 (2) Plot of land with buildings thereon bearing Bai Survey No,108, sheet S.B. 7 measuring 38 sq. Yds. Situated in Saddar Bazar Quarter, Karachi valued at .Rs,8,000 (3) Plot of land with buildings thereon bearing Survey No,3, Sheet No,S.B.5 measuring 1790 sq. Yds. Situate in Saddar Bazar Quarter, KarachiProperties item No,3 and (4) Plot of land with buildings thereon bearing Survey Nos. 5, 6, 7, 8 and 10 Sheet No,S.B.5 Measuring 597, 550, 2011, 807 and 440 sq. Yds. Respectively (with right of passage over PlotItem No,4 from one block and are jointly valued at: Rs,1,00,000 Rs,1,78,000
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No,10 to the owners of Plot No,9 situated in the Saddar Bazar Quarter, Karachi valued at
' It was also provided that if after all the lines of said sons have become extinct, all the lines of daughters becomes extinct, then their shares shall be spent on and utilized for religious and charitable objects in the following manners:-- (a) For advancement and education of the Muslims in India, particularly the members of the Cutchi Memon Community of Sindh, in the matter of learning religious and culture. (b) For the protection and promotion of Islam. (c) For the relief and suffering of the poor and the needy. (d) For payment to any mosques or other religious or educational institutions that may be in need. (e) For affording medical relief. 3. The beneficiaries filed the above suit for declaration, accounts and permanent injunction against the appellant Hussain A. Haroon, Yousuf A. Haroon and Mahmood A. Haroon, Mutawallis and their staffs, alleging indifferent and neglected conduct of Yousuf Ali Haroon and Mahmood A. Haroon towards the Wakf affairs due to their periodical absence from Pakistan on political reasons which resulted in defendantNo,1 contrary activities in the affairs of Wakf, firstly as Manager and thereafter as Mutawalli. Due to the failure of defendants Nos.2 and 3 to fulfil their duties, they allowed the defendant No,1 to take sole charge of the Wakf affairs and its properties, who was appointed as caretaker Manager during Mutawalliship of his father Saeed. After his demise, he succeeded his late father as Mutawalli by virtue of clause 9 of Wakfnama. The plaintiff No,3 continued to take interest in the Wakf and wrote letter to defendant No,1 inquiring about the state of affairs of the said Wakf and its activities. She continued in her efforts to obtain the accounts from him without having recourse to a legal action but successful. It was also alleged that the defendant No,1 was utilizing the income/funds of the Wakf for his owt use, as ever since the defendant No,1 was given charge of the Wakf properties, nothing was done to further the objects of the Wakf and a pittance was being doled out to the beneficiaries including the plaintiffs as their share in the income generated by the Wakf properties. The defendant No,1, on demand for accounts only provided balance-sheet and financial statement pertaining to the Public Charitable Trust relating to the year ending 30-6-1994 and 30-6-1996; without details, showing in it hardly that any income was being earned from the Wakf properties. The balance-sheet showed minimum income through considerable income of Wakf properties had been generated through receipts of Pugree by a change of tenants that have been misappropriated. It was also pleaded that nothing had been done to further the objects of the Wakf ever since the defendant No,1 had taken charge of the Wakf properties not has he been fully utilizing the same for the benefit of the beneficiaries of the Wakf. Contrary to the express wishes of the Wakf, the property at Serial No,3 of the Wakf properties has been demolished. Misappropriation and mismanagement in respect of the Wakf No,1 were also detailed in the plaint. Despite persistent demands by the plaintiffs, the defendant No,1 failed to produce accounts which further compounded by the failure of the defendants Nos.2 and 3 to perform their duties with regard to the Wakf. Hence the suit for accounts, declaration and injunction. 4. C.M.A. No,4786 of 1998 under Order 39, rules 1 and 2, C.P.C. Read with section 151, C.P.C. Was filed, whereby restraint order was sought against the defendants from acting as Mutawallis. (ii) Application under Order 40, rule 1 read with section 151 C.P.C. (iii) Application under Order 26, rule 11 read with section 151, C.P.C., were also filed alongwith plaint. 5. C.M.A. No,179 of 2000 was filed stating therein that it appears that defendant No,1 with intention develop Survey Nos. 3, 6, 7, 8 and 10 S.B. 5 situated on Abdullah Haroon Road, Karachi admeasuring a total of 6,195 has levelled the ground and have engaged a builder though onC.M.A. No,4786 of 1998, by consent, inter alia, defendant No,1 agreed to supply the accounts and record of the Wakf,
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which have not been supplied. The defendant No,1 is also in control of a property belonging to Haji Sir Abdullah Haroon Charitable Trust thus has commenced construction of a building on which there was a Yateem Khana and in spite of the protest of the members of the Haroon family Suit No,93 of 1998 under section 93, C.P.C. Is also pending, wherein, inter alia, suitability as a person to run the Trust has been challenged. The restraint order sought through C.M.A. In the terms that defendant No,1 be restrained from carrying out any development or constructions of the said plot through his agents, servants, contractors, partners or associates. The application was disposed of by the learned Single Judge by order dated 10-10-2000, which is impugned through above appeals. 6. The learned counsel were put on notice that the aforesaid appeals would be heard/disposed of finally on merits at Katcha Peshi stage and the learned counsel have argued the appeals for final disposal. ' We have heard the arguments of Messrs Rasheed A. Razvi, Mushtaq Ahmed Memon and Mr. Shaharyar, representing the appellant in H.C.A. No,315 of 2000 have adopted the arguments of Mr. Rasheed A. Razvi, Advocate whereas, Mr. Naimur Rehman and Mr. Yawar Farooqui, argued the matter on behalf of the respondents. 7. It has been contended by Mr. Rasheed A. Razvi, learned counsel for the Contractor (H.C.A. No,318 of 2000) that the contractor is a stranger to the proceedings and is aggrieved by the impugned order, therefore, he can tile the appeal as he is adversely affected by the impugned order and to support his contention, he referred the view taken by the Supreme Court in H.M. Saya & Co. v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65, wherein the question for consideration was whether a stranger to a suit or proceeding can file an appeal if he is adversely affected by an order in that suit or proceeding. The view taken was that it is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. It was further observed that the Court should proceed on the principle that every procedure which further administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the "Civil Procedure Code deals with appeals from decrees and section 104 deals with appeals from orders. These provisions do not in terms say who is entitled to prefer an appeal. The code, however, lays down that if the decree or the order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceeding. ' Mr. Rasheed A. Razvi also referred the case of Q.B.E. Insurance Limited v. The Trustees of the Port of Karachi 1992 CLC 804, whereinthe preliminary objection that the appellant not having been a party to the suit was not competent to file the appeal. It was contended that it was only the parties to the proceedings before the Court that had a right of appeal and those persons who were not parties to the suit were not competent to file any appeal even though the judgment and decree appealed might adversely affect their interests. Mr. Justice Syed Haider Ali Pirzada (as he then was) was of the view that a person who is not a party to the suit or proceedings has no right to appeal against the decision and this is the position where a person, who is not a party, is aggrieved by the decision and wants to appeal against it. He can only ask for leave to appeal from the Appellate Court before he can be allowed to file an appeal. There is no right of appeal vested in him by any of the provisions of the Civil Procedure Code or by any other provision of law. The only remedy open to him, if his interests are adversely affected or if he is aggrieved by decision of the Court, is to approach the Appellate Court and also for leave to appeal which the Appellate Court would grant in proper cases. ' Same view was reiterated in S. Musarrat Hussain Zaidi and another v. S. Salim Jawaid Zaidi and another PLD 1993 Kar. 548 in the following terms:--
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"It is, in our opinion, clear that leave to a person to appeal from a decree or order in a suit or proceeding to which he was not a party should not be ordinarily granted unless he establishes that he has an interest which is affected by the order or decree from which he proposes to appeal. If he establishes that he has such interest, it seems to us, that it is not necessary for him to further establish that if he does not institute an appeal with the leave of the Appellate Court, the consequence will be that the order or decree against which he proposes to appeal, becomes conclusive without his being able to show whether appeal should or should not be granted, should depend upon the fact of each case and it is for the Appellate Court to decide whether the case before it is a fit case for the grant of such leave." ' Mr. Naimur Rehman, learned counsel for the respondents has not controverted the legal position and has not opposed the appeal on that ground. ' Following the dictum of H.M. Saya & Co. (supra) laid down by the Supreme Court, we are of the view that a stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal against an order passed therein whereby he is aggrieved. 8. Mr. Rasheed A. Razvi, learned counsel for the appellant has also contended that the learned Single Judge has passed the order on the assumption that the building was demolished during the pendency of the suit though the demolition was over when the plaint was filed. His further contention was that the portion of property at Serial No,3 stand merged with property at Serial No,4 during the lifetime of Lady Nusrat Haroon. ' He also canvassed that the pre-condition for the grant of injunction in terms of Rule 1 of Order 39, C.P.C. Is that where in any suit it is proved by affidavit or otherwise --- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree. (b) that the defendant threatents, or intends, to remove or dispose of his property with a view to defraud his creditors, the Court may grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders. He pointed out that there is no allegation of waste or damage as appears from perusal of the application and the supporting affidavit but the learned Single Judge without considering this aspect has passed the impugned order. Mr. Razvi though frankly conceded that such facts could be established otherwise than on affidavit. The term "otherwise" is wide enough to comprehend in its scope, such facts that may be established through pleadings and documents filed therewith. ' Mr. Razvi also argued with vehemence that the expression "any party" used in clause (a) of rule 1 refers to party to the suit and to support his contention, he referred the case of Sindh Industrial Trading Estates v. Mst. Qamar Hilal and 5 others 2001 SCMR 1680 that the words "any party" in legal parlance relate to the party in the proceedings and the person who has applied the Court to become party cannot be so-called "as party" unless orders are passed by the Court allowing the request for his addition as party to the proceedings and, therefore, a person not party to the suit or proceedings could not object to the claim and defence of the plaintiff alleging to be false and vexatious in terms of section 35-A, C.P.C.. The word "party" in Corpus Juris Secundum has been defined as follows:-- "With reference to judicial proceedings, the word 'party' is generally used as meaning one of two opposing litigants, he or they by or against whom a suit is brought, whether at law, or in equity, the plaintiff or defendant, whether natural or legal persons." ' Ballentine's Law Dictionary defines the word "party" in the following terms:-- "A person who had engaged in a transaction or made an agreement. One of the opposing litigants in a judicial proceeding, a person seeking to establish a right or one upon whom it is sought to impose a corresponding duty or liability, including any person by whom or against whom a suit,
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either at law or in equity, is brought. For the purposes of a right to appeal, persons named as parties in the original pleadings and persons who subsequently come or are brought into the action for the purpose of seeking relief or of being subjected to relief." ' Mr. Rasheed A. Razvi also referred the case of Philippine Airlines Inc. v. Paramount Aviation (Private) Limited and others PLD 1999 Kar. 227, to contend that the grant of injunction, in absence of the contractor, a party in proceedings, is in violation of principle of natural justice, thus the impugned order is liable to be set aside that has been passed in violation of principle of natural justice, the appellant was not a party and his right is affected by such order. His contention was that the principle "right of hearing" enshrined in Maxim "Audi alteram partem" applies to judicial as well as administrative order. He referred the cases of (1) Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45, wherein the apex Court expressed that the rule of justice embodied in the maxim: "audi alteram partem": "No man shall be condemned unheard" is not confined to proceedings before Courts but extends to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute. The University of Dacca v. Zakir Ahmed PLD 1965 SC 90, wherein Supreme Court after referring cases (a) Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45, (b) Davidsons Limited v. Government of Pakistan PLD 1961 SC 537 and (c) Abdur Rahman, Collector and Deputy Commissioner, Bahawalnagar and others PLD 1964 SC 461 reiterated the same principle that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned". This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness. ' To demonstrate the right of the contractor in the matter, Mr. Rasheed A. Razvi, learned counsel for the appellant has taken us through the construction agreement between the appellants i,e, Mutawallis and the contractor for the construction of a project on subject plot, whereby the contractor was to raise the project with following specification, subject to the approval of building plan by the competent authority:-- (1) Basement Parking/shops. (2) Ground floor Shops (3) First Floor Shops (4) Four other floors Shops/flats/offices ' Other conditions are Rs,100 million was to be paid to the party of first part (Mutawallis) by contractor as premium for award of project and construction of the building, out of which Rs,50,00,000 was paid for renewal of old lease, remaining amount was to be paid in terms of para. 6 of the agreement. He was to rent out shops/flats/offices and to receive premium from the prospective tenants and was to utilize said amount at their discretion i,e,, construction of the project and payment of premium to the first part as mentioned earlier, besides other expenses. Monthly rents were to be collected by Mutawallis to be fixed by the contractor ,subject to the condition that the total monthly rent for the entire building was not be less than Rs,3,50,000 per month. Mutawallis have also executed a power of attorney in favour of the contractor with sole purpose of facilitating them the completion of project and to resolve and settle all the matters with regard to the project. On above premises, it has been contended by the learned counsel for the appellant that the impugned order suspending the operation of the agreement offends the right of the appellant/contractor, without hearing him, thus liable to be struck down. 9. Controverting the plea, Mr. Naimur Rehman, learned counsel for the respondent has with vehemence contended that the Mutawallis have granted the contract for the construction of a
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building project at the dismantled plot in terms of the contract with authority through power of attorney, the relation between Mutawallis and contractor is of principal and agent, the Mutawallis are party in the suit, the impugned order was passed with full opportunity to them, therefore, it cannot be canvassedthat the impugned order offends the principle of maxim "audi alteram partem" as the contractor is the agent of the Mutawallis. Mr. Naimur Rehman is right in his contentions that the Mutawallis Yousuf Haroon, Hussain Haroon and Mehmood Haroon were before the Court. The contract for the construction was given by Mutawallis during the pendency of the suit. Therefore, the contention that without hearing the contractor, the impugned order offends principles of natural justice cannot be canvassed when the principal viz. Mutawallis were before the Court. ' It has been further contended by Mr. Naimur Rehman that Mutawallis have no power to deal with property in the manner they have tried to deal with it by granting the contract to the contractor during the pendency of the suit. He was not entitled for the notice. To support his plea has referred the judicial pronouncements in Muhammad Saleem and 5 others v. Administrator, K.M.C. And 2 others 2000 SCMR 1748. ' His further submission was that contract itself is hit by doctrine of lis pendens and has taken support from the view expressed in Industrial Development Bank of Pakistan v. Saadi Asmatullah and others 1999 SCMR 2874 the doctrine of lis pendens was highlighted as follows:-- "Transfer when litigation in respect of the such property was pending before the Court, was to be governed by the provisions of section 52 of the Transfer of Property Act, 1882 which lays down that such transaction, made, during pendency of litigation, cannot affect the rights of any other party to the litigation, which may be acquired by it under the decree passed by the Court. Even a bona fide purchaser with consideration pendente lite would be bound by the result of the litigation as his rights in such…
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