Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mst. JEWAN BIBI and 2 others VS Respondent: INAYAT MASIH
Court Name: Supreme Court of Pakistan Judge(s): Abdul Hafeez Memon, Muhammad Ilyas Title: Mst. JEWAN BIBI and 2 others vs INAYAT MASIH Case No.: C.R. No,2593/95 Civil Petition No,1032-L of 1996 Date of Judgment:1996-05-21 Reported As: 1996 SCMR 1430 Result: Appeal dismissed
Judgment ORDER ' MUHAMMAD ILYAS, J.---This petition has arisen out of a suit brought by the respondent, Inayat Masih against the petitioners, Mst. Jewan, etc., for possession of a house, alleging that he was owner thereof. The petitioners resisted the suit contending that it was owned by them and not by the respondent. They also pleaded res judicata. After the framing of issues, the respondent examined three witnesses to prove his case. The petitioners, however, did not produce any evidence in rebuttal although they were given several adjournments, covering a period of about four years, to do so. It seems that they also stopped appearing in the suit with the result that ex parte decree was passed against them on the basis of the evidence produced by the respondent: Petitioners went in appeal before an Additional District Judge but without success. The appellate judgment and decree were assailed by them by making revision petition before the Lahore High Court but it was dismissed by a Single Judge of the said High Court. Hence this petition for leave to appeal against the judgment of the learned Judge in Chambers. 2. It was contended by learned counsel for the petitioners that the petitioners had placed on the record of the learned trial Court copy of plaint of an earlier suit brought by the predecessor-in- interest of the petitioners, Sadiq Masih against the respondent in respect of the house in dispute as well as the copies of the judgment and decree, passed in the said suit, in favor of their predecessor-in-interest. The argument precedes that since the earlier suit also related to the ownership and possession of the house in dispute, decision in the previous suit attracted the principle of res judicata qua the suit giving rise to the instant petition. It was, however, frankly conceded by learned counsel for the petitioners that the said three documents, relating to the previous suit, were not produced in evidence by the petitioners during the pendency of the suit out
---
## Page 2
of which this petition has arisen. Having made this disclosure, he contended that it was the duty of the trial Court as well, as that of the higher Courts, which have dealt with the instant dispute earlier, to take judicial notice of the said documents and decided the issue of res judicata against the respondents. 3. We have gone through the documents in question. Obviously, they could not be taken into consideration because they were not part of the evidence. In other words, they could not be relied upon for recording a finding on the issue relating to res judicata. The petitioners have been grossly negligent in the matter of presenting their case. After the ex parte decree was passed against them, they did not make application for setting aside the said decree. Instead, they decided to go in appeal. Before the learned appellate Court, they did not make application for permission to produce the said documents as additional evidence, by invoking the provisions of rule 27 of Order XIII of the Code of Civil Procedure. No such effort was made by them even at the stage of revision before the learned High Court. As indicated earlier, they had four years to produce evidence before the learned trial Court but they did not care to do so. They did not even bother to tender the said documents in evidence by making a short statement. Valuable right this accrued in favor of the respondent due to the repeated failures of the petitioners to present their case squarely. It will be, to say the least, unfair to deprive the respondent of the right so earned by him and-to allow premium to the petitioners for their culpable negligence. As rightly observed by the learned Judge in Chamber, the issue of res judicata was to be decided like any other issue and if there was no evidence in support of the plea of res judicata, raised by the petitioners, the issue could not be decided in their favor. We allowed lot of time to learned counsel for the petitioners to make out a prima facie case for grant of leave but, alas, he was unable to do so. 4. As stated earlier, the petitioners were highly negligent right from the stage of trial Court till this time, in substantiating their plea of res judicata by producing adequate and convincing evidence. It can hardly be denied that for the purpose of doing justice, the learned Additional District Judge could, of his own violation, order the production of the documents in question as additional evidence and also allow the respondents to produce evidence in rebuttal thereof; but case-law is also well-settled on the point that additional evidence should not be allowed to be produced to enable a party to fill up any lacuna in his case. This principle can more aptly be applied to the case of a person who has remained indolent, for years together, in the matter of producing oral or documentary evidence before the Trial Court. The petitioners' position in this regard was still worse at the stage of revision. We cannot, therefore, blame any of the Courts, which have dealt with this case earlier, for non-receipt of the said documents in evidence. The entire fault lies with the petitioners and so they must suffer the consequences thereof. 5. Upshot of the above discussion is that the petitioners have badly failed in making out a case for grant of leave to appeal against the judgment of the learned Single Judge. We, therefore, refuse the leave prayed for by the petitioners, and dismiss this petition. Petition dismissed. 1996 SCR. 1433 [Supreme Court of Pakistan] Present: Saiduzzaman Siddiqui, Raja Afrasiab Khan and Muhammad Bashir Khan Jehangiri, JJ JAVAID IQBAL ABBASI & COMPANY---Appellant versus PROVINCE OF PUNJAB and 6 others---Respondents Civil Appeal No,1247 of 1995, decided on 9th June, 1996. (On appeal from the judgment of Lahore High Court dated 10-10-1995 passed in W.Ps. 11880 and 12516/1995). (a) Punjab Local Councils (Taxation) Rules,' 1990---
---
## Page 3
----Sched., Item No,59---Conslitution of Pakistan (1973), Art. 185(3)---Grant of lease right to collect export tax on goods---Leave to appeal was granted to consider; whether there was a concluded binding contract for collection of export tax in favour of petitioner for specified year; whether petitioner had been legally deprived of the said contract; and whether judgment of High Court was in accordance with law. [p. 1437] A (b) Civil Procedure Code (V of 1908)- ----0.XXIII, R. 1---Constitution of Pakistan (1973), Art. 199---Withdrawal of Constitutional petition unconditionally---Court when entitled to decline request for unconditional withdrawal of Constitutional petition---Constitutional petition being proceedings of civil nature, provisions of Civil Procedure Code, 1908, applied to it---Provisions of O.XXIII, R. 1, C.P.C. Were, thus, applicable to application for withdrawal of Constitutional petition---Court normally would not disallow application for unconditional withdrawal of Constitutional petition filed under Art. 199 of the Constitution after its institution but if Court comes to conclusion that application for withdrawal of proceedings has been made in order to defeat right of respondent or any other person to whom right to pursue such petition had accrued after filing of petition or withdrawal of proceedings would result in perpetuating fraud or injustice, Court would decline to allow petitioner to withdraw his Constitutional petition---Where reasons recorded by High Court for declining prayer for withdrawal of Constitutional petition were not only relevant but sound, no exception could be taken to the order in question of High Court. [pp. 1440, 1441, 1442] B, C & D Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1; Stroud's Judicial Dictionary; Bradlough v. -Clarks 8 AC 354; Chakar Khan v. Commissioner, Sibi Division, Sibi 1979 CLC 829; Hussain Bakhsh v. Settlement Commissioner and another 1969 SCMR 268; Messrs Hindustan Sanitary and Drainage Works v. Shabbir Burhani and 6 others PLD 1992 Kar. 21; Amjad Rashid Khan Malik v. Shahida Naeem Malik 1992 SCMR 485; Hulas Rai Baijnath v. K.B. Bass & Co. Ltd. AIR 1963 All. 368; Sirajuddin v. Mst. Amtul Rauf PLD 1977 Kar. 933 and Riaz Malik v. Amina Parka"' PLD 1988 Kar. 560 rel. (c) Punjab Local Councils (Taxation) Rules, 1990--- ----Sched., Item No,59---Collection of export tax through auction---Petitioner claimed to be the highest bidder---Highest bid in auction being subject to approval of Zila Council, which at relevant time was not functioning, rejection by Minister concerned for cogent reasons and directing re- auction of same whether amounted to infringement of vested right of appellant---Merely by participating in auction and giving highest bid, appellant did not acquire any vested right to get his bid accepted---Highest bid in auction was subject to approval of Zila Council which at that time was not functioning and same was rejected by Minister concerned who, after giving cogent reasons directed re-auction of lease rights---Where Government or Public functionary disposes of property or rights in property through public auction and bid offered in such auction is subject to approval of Government or Authority authorised by Government then such Authority can reject the highest bid on ground of inadequacy of consideration or for any other good and sufficient reason which would satisfy test of reasonableness and public interest---Where, however, highest bid was accepted at the auction but was subsequently rejected by the Government or the Authority who had final say in the matter, accepted any other bid surreptitiously without giving any opportunity to highest bidder to raise his bid to match other higher bid offered privately and received by such Authority, then such an auction would be violative of principles of natural justice and fair play--- Where highest bid was rejected and re-auction was ordered which afforded equal opportunity to persons whose bid had been rejected, then principle of natural justice would not be deemed to have been violated---Fact that one of respondents had offered on re-auction sum of over Rs,four crores for the lease period of only 7 months as against appellants' bid of much less amount for a period of 12 months, was enough to show that order of re-auction was eminently a just and proper order passed by High Court---Order of High Court was affirmed in circumstances. [pp. 1446, 1449] E
---
## Page 4
& F Ram Shyam Co. v. State of Haryana AIR 1985 SC 1147; Trilochan Mishra v. State of Orissa (1971) 3 SCC 153; AIR 1971 SC 733; State of Uttar Pradesh v. Vijay Bahadur Sing (1982) 2 SCC 365; State of Orissa v. Harinarayan Jaiswa l (1972) 3 SCR 784; AIR 1972 SC 1816; Vijay Bahadur Singh's case AIR 1982 SC 1234; Ramana Dayaram Shetty v. The International Airport Authority of India (1979) 3 SCR 1014; AIR 1979 SC 1628; Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir (1980) 3 SCR 1338 and AIR 1980 SC 1992 ref. SCMR Gul Zarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Appellant. Muhammad Yawar Ali, Additional Advocate-General, Punjab for Respondents Nos.1 and 2. Dr. Muhammad Mohyuddin Qazi, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate- on-Record for Respondent No,4. Anwar H. Mir, Advocate-on-Record for Respondent No,7. Date of hearing: 8th May, 1996. JUDGMENT ' SAIDUZZAMAN SIDDIQUI, J.---Zila Council, Okara (hereinafter to be called as the 'Council' only), invited bid in an open public auction for grant of lease right to collect export tax on goods for the year 1995-96 (1-7-1995 to 30-6-1996). The auction was held on 17-7-1995 in which ten bidders including the appellants took part. The appellants offered the highest bid of Rs,2,47,000,00 which was higher than the amount of lease money offered for the year 1994-95 (1-7-1994 to 30-6-1995). The auction committee accepted the highest bid offered by the appellants and recommended to the council for acceptance of the same. At the relevant time on account of curtailment of the term of office of the Council by the Government under section 26-A of the Punjab Local Government Ordinance, 1979 (hereinafter to be called as 'the Ordinance' only), the powers and functions of the Council were entrusted to the Administrator, appointed by the Government under section 26-A (2) of the Ordinance. The Administrator forwarded. The relevant documents to the Secretary, Government of Punjab, Local Government and Rural Department (E.G. & R.D.) recommending that the bid offered by the appellants may be confirmed. A summary was prepared for the Minister for Local Government by the Secretary,. L. G. & R. D. On which the Minister passed the following order:-- "Complaints are being received that fair competition was not held and there was a pool between the Contractors. An offer of Rs,2,60,00,000 has been received from Safdar and Company duly supported by C.D.R. Of Rs,25,00,000. ' In view of the above the bid is rejected. The Administrator, Zila Council Okara may be directed to put the collection rights of Exit Tax to re-auction immediately." 2. On the basis of the above order of Minister Local Government, the Secretary L.G.&R.D. Informed the Administrator, Zila Council Okara on 1-8-1995 that the bid offered by the appellants has been rejected by the Minister, and therefore, lease rights for collection of export tax be put to re-auction immediately with the reserve price of Rs,2,60,00,000 offered by M/s. Safdar and Company (respondent No,3). Instead of implementing the order of re- auction passed by the Minister, LG&RD, the Administrator, Zila Council Okara, wrote to the Secretary, LG & RD on 3-8-1995, recommending that the auction proceeding held on 17-7-1995 were regular and that the order of the Minister for re-auction of lease rights was based on facts which were misrepresented by respondent No,3. In reply to the above letter of Administrator, the Section Officer No,VI, Government of Punjab LG&RD wrote to Administrator, Zila Council, Okara on 31-8-1995 that the Minister for Local Government has approved the bid of Rs,2,47,00,000 offered by the appellants. It appears that the appellants, thereafter, made a representation to the Administrator of the Council contending that the lease right was auctioned in their favor on 17-7-1995 for a period of one year commencing from 1-7-1995 to 30-6-1996 while the approval of bid conveyed to them mentioned the period of lease as 11 months only. The appellants, accordingly, requested that the lease may be treated for 12 months as originally agreed at the time of auction. This request was acceded to and it was clarified that
---
## Page 5
the lease will be treated for 12 months commencing from 1-7-1995 to 30-6-1996. The appellants made yet another representation to the Secretary, LG&RD seeking clarification that as the work order was issued in their favor on 3-9-1995, the period of 12 months should commence from that date. This request of the appellants too was acceded to on 19-9-1995. Respondent No,3 who had offered the higher bid of Rs,2,60,00,000 and had deposited a sum of Rs,25,00,000 and on whose representation the Minister L.G. Had rejected the bid of the appellants and ordered re-auction of lease rights, filed Writ Petition No,11880/95 in Lahore High Court challenging the subsequent order of the Minister L.G. Approving the bid of appellants in the sum of Rs,2,47,00,000. While this writ petition was pending another Writ Petition No,12516/95 was filed by one Waheed Iqbal (respondent No,4) against Province of Punjab and others to challenge the order of the Minister dated 31-8-1995 accepting the bid of appellants for Rs,2,47,00,000. Both the writ petitions came up for hearing together before a learned Judge in Chambers of Lahore High Court on 26-9-1995. At the hearing of the petitions, respondent No,3 who was petitioner in Writ Petition No,11880/95 submitted an application seeking unconditional withdrawal of his writ petition while respondent No,4 moved an application offering a bid of Rs,3,47,00,000 for lease right to collect goods exit tax for 12 months along with a deposit of Rs,25,00,000. The learned Judge in Chambers rejected the application filed by respondent No,3 for withdrawal of Writ Petition No,11880/95 and after hearing the petitions on merit through a consolidated judgment allowed both the petitions and declared the order passed by the Minister on 31-8-1995, confirming the bid of appellants for Rs,2,47,00,000 as illegal and without lawful authority and further directed that fresh auction be held with base-line of Rs,3,47,00,000 which was the bid offered by respondent No,4 in writ Petition No,12516/95. It was further observed by the learned Judge in the impugned judgment that in case respondent No,4/petitioner in Writ Petition No,12516/95, did not stick to his offer of Rs,3,47,00,000 the sum of Rs,25,00,000 deposited by him would be forfeited. 3. Leave was granted in the above case to consider the following legal contentions raised by the learned counsel for the appellants:-- "4. We cannot go into the above question. However, we are inclined to grant leave to consider the following questions:-- (i) Whether there was a concluding binding contract for the collection of export tax in favor of the petitioner for the above year? (ii) Whether the petitioners have been legally deprived of the above contract? And (iii) Whether the High Court's impugned judgment is in accordance with law?" ' We have heard the learned counsel for the appellants, the learned Additional Advocate-General. Punjab, and learned counsel for the respondents. 4. Mr. Gul Zarin Kiani, the learned counsel for the appellants has raised the following contentions in support of the appeal. It is firstly: contended by the learned counsel that the application filed by respondent No,3 for unconditional withdrawal of Writ Petition No,11880/95 could not be declined as the respondent No,3 had the absolute right to withdraw the same in view of the provisions of Order 23, Rule 1, C.P.C. Which applied to the proceedings before the learned Judge in Chambers. The learned counsel, accordingly, contended that in view of withdrawal of Writ Petition No,11880/95, no order could be passed by the learned Judge in Chambers in respect of the auction confirmed in favor of appellants as no proceedings in the eyes of law was pending before the learned Judge after withdrawal of Writ Petition No,11880/95. With regard to Writ Petition No,12516/95 filed by respondent No,4 challenging the order of Minister, L.G. Dated 31-8-1995, approving the auction bid of appellants, the learned counsel for the appellants contended that respondent No,4 did not take part in the auction held on 17-7-1995, and therefore, he had no locus stand to maintain the petition. It is lastly, contended by the learned counsel that in any case the Minister, L.G. On having been
---
## Page 6
apprised of true position, withdrew his order dated 20-7-1995 and as such the appellants could not be deprived of their right of lease which became absolute and binding on the parties. 5. The learned Additional Advocate-General, Punjab, though did not dispute that the Minister, L.G. After passing the order dated 20-7-1995 rejecting the auction bid of appellants and ordering re- auction of lease rights, had subsequently approved the bid offered by the appellants in the auction held on 17-7-1995 for Rs,2,47,00,000, but contended that as the order rejecting the bid of appellants and directing re-auction of lease right was not specifically recalled by the Minister L.G., in the circumstances, the order of the High Court directing re-auction of lease right for collection of goods exit tax was a just and proper order which may not be interfered with learned counsel appearing for respondent No,4 also supported the order of the High Court. It may be mentioned here that in accordance with the order of learned Single Judge, the contract for lease right to collect good; exit tax was put to re-auction on 5-11-1995 and respondent No,7 who was subsequently impleaded as party in the petition before the High Court, became a successful bidder in the auction by offering a sum of over Rs four cores for the contract of lease right for a period of only 7 months The learned counsel for respondent No,7 supported the appeal. 6. The first question which arises for consideration in this case is whether the learned Judge in Chambers was justified in rejecting the prayer of respondent No,3 for unconditional withdrawal. Of his Writ Petition No,11880/95. The learned counsel for the appellants contended that Order 23, Rule 1, C.P.C. Which applied to the proceedings under Article 199 of the Constitution placed no fetters on the right of a plaintiff to withdraw the suit unconditionally. It is, accordingly, contended by the learned counsel for the appellants that after filing of the application for withdrawal of Writ Petition No,11880/95, by respondent No,3, the learned Judge could not decide the petition on merits as in law he had no valid proceeding pending before him. The learned counsel for respondent No,4 on the other hand has contended that besides Petition No,11880/95, another Petition No,12516/95 filed by respondent No,4 was also pending before the learned Judge in Chambers and, therefore, withdrawal of Petition No,11880/95 by respondent No,3 could not prevent the learned Judge from deciding the validity of the order of Minister dated 31-8-1995, which was also questioned in Writ Petition No,12516/95 instituted by- respondent No,4. It is also contended by the learned counsel for respondent No,.4 that the-application filed by respondent No,3 withdrawing Writ Petition No,11880/95 was a mala fide act and therefore, the Court was not bound to grant the same especially when rights had accrued to other parties on account of order passed by the Minister L.G. Dated 20-7-1995 directing re-auction of lease rights to collect goods exit tax. 7. The contention of the learned counsel for the appellants that provisions of Order 23, Rule 1, C.P.C. Applied to the proceedings before the learned Judge in Chambers, is not seriously disputed. In the case of Hussain Bakhsh v. Settlement Commissioner (PI D 1970 SC 1), this Court while dealing with the contention whether the provisions of Code of Civil Procedure applied to the proceedings under Article 98 of the 1962 Constitution made the following observations:-- "The writ jurisdiction under Article 98 of the Constitution, as already stated, is an original jurisdiction. Obviously, the jurisdiction under that Article pertains to civil as well as other matters. At the moment, I shall consider the nature of the proceeding arising out of a writ petition relating to a civil matter, as in the instant case. A proceeding taken for the enforcement of a civil right is a civil proceeding, whatever may be the source of the Court's jurisdiction invoked for enforcement of such a right. According to Stroud's Judicial Dictionary, 'Civil Proceeding' is a process for recovery of individual right or redress of individual wrong, inclusive, in its proper legal sense, of suits by the Crown see Brad lough v. Clarks 8 AC 354. Whether a proceeding is civil or not depends on the nature of the subject-matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having
---
## Page 7
recourse to the writ jurisdiction. Judged from these aspects, a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding, although the High Court's jurisdiction in such a proceeding is Constitutional jurisdiction of an original kind. A civil proceeding in a Court of civil jurisdiction is governed by the Code of Civil Procedure (see its preamble). By virtue of section 117 of the Code,. a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specially excepted. A proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and section 114 of the Code conferring power of review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said section 114 if that section is otherwise applicable. Section 1.14 of the Code reads thus: 'Subject as aforesaid, any person considering himself aggrieved-- (a) by a…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.