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Petitioner: Sardar MUHAMMAD AZIZ KHAN VS Respondent: Messrs. UNITED KASHMIR FLOUR MILLS
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Muhammad Younus Surakhvi, Khawaja Muhammad Saeed Title:Sardar MUHAMMAD AZIZ KHAN vs Messrs. UNITED KASHMIR FLOUR MILLS
JUDGMENT
Reported As: PLD 2004 Supreme Court (AJ&K) 1 Result: Appeal dismissed Judgment JUDGMENT MUHAMMAD YUNUS SURAKHVI, C J.- This appeal, by way of leave of the Court has been directed against the judgment passed by the High Court on 25-6-2003, whereby the writ petition filed by respondent No,1 was accepted and the impugned Notification No SF/H6(19)/49-1742-49/2002 dated 17-9-2002 was set aside and declared to be without any lawful authority and the non- petitioners (respondents Nos.2 and 5 herein) were directed to restore the monthly quota of wheat of 1875 tons to the petitioner (respondent No,1 herein) according to Notification dated 10-7-1998. 2. The necessary facts, giving rise to the present appeal. Are that on 5-5-1997 on the application of Ch. Talib Hussain and others, Azad Government of the State of Jammu and Kashmir gave an assurance and commitment to them that if they install a Flour Mill in Sehala, Humak, then, the Food Department of AJ&K shall supply 1000 tons of wheat to them for grinding purposes. Subsequently on 16-1-1998 another assurance was given that instead of 1000 tons of wheat, 1875 tons of wheat shall be monthly provided to them for the aforesaid purpose. Later on, Ch. Talib Hussain, respondent No,3, could not install the Mills at Sehala, Humak. He moved an application that installation of Mills at Sehala, Humak, is not feasible, therefore, he wants to install the Mills at 17- Miles Kalyam More, near Rawat, Rawalpindi. It was also prayed that he wanted to change the name of Mills as United Kashmir Flour Mills Limited instead of Kashmir United Mills Limited, thefore, the, quota may be allocated in the name of United Kashmir Flour Mills,-17-Mile Kalyam More, near Rawat, Rawalpindi. Upon this, the quota was allocated in the name of proposed United Kashmir Flour Mills, 17-Mile Kalyam More, near Rawat, Rawalpindi. On this assurance and commitment of the Government, respondent No,3 took necessary steps for the establishment of the Flour Mills. He
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established a Flour Mill at 17-Mile Kalyam More, near Rawaat, Rawalpindi, by spending millions of rupees. The Mills of respondent No,3 was smoothly -running that all of a sudden vide Notification dated 17-9-2002, the Notification dated 10-7-1998 was cancelled, whereby the quota of wheat of 1875 tons of 'wheat was fixed per month for the proposed Mills. This Notification was challenged by respondent No,1 through a writ petition which, as stated earlier, was accepted vide the impugned judgment dated 25-6-2003. It is the aforesaid judgment of the High Court which is the subject- matter of present appeal. 3. Sardar Muhammad Aziz Khan, the present appellant, was not a party before the High Court. However, he filed an appeal by way of leave against the aforesaid judgment of the High Court before this Court on 21-8-2003. At the stage of leave the following points were raised by the learned counsel for the petitioner/appellant:-- "(i) That the Notification dated 10-7-1998 regarding transfer of quota of Kashmir United Flour Mills, Sehala Humak, Islamabad, to United Kashmir Flour Mills Limited, 17-Mile Kalyam More, Rawat, Rawalpindi, was issued without giving any notice to the petitioner whose rights were adversely affected; (ii) that the Notification dated '10-7-1998 was issued in violation of the Rules of Business, therefore, the same was nullity in the eye of law; (iii) that the Notification issued by the Government of Azad Jammu and Kashmir dated 17-9-2002 whereby the Notification dated 10-7-1998 was cancelled, did not require legally any notice to be issued to respondent No,1 as the earlier Notification dated 10-7-1998 was not issued in accordance with law, alternatively it was argued that respondent was provided opportunity of hearing; and (iv) that respondent No,1 while filing the writ petition did not implead the petitioner as party in the proceedings though he was a necessary party. It was explained that the quota which was transferred to respondent's Mills was originally allotted to petitioner's Mills, therefore, in absence of the petitioner, no effective order was possible in law." 4. While controverting the arguments of the learned counsel for the petitioner/appellant, Mr. M. Tabassum Aftab Alvi, the learned counsel for respondents Nos.1 to 3, at the stage of leave raised the following points:-- "(i) That the petitioner had filed an earlier writ petition challenging the Notification dated 10-7-1998. The aforesaid writ petition was subsequently withdrawn, as such the petitioner was not an aggrieved person to challenge the order passed by the High Court in writ petition. It was added that while withdrawing the writ petition, mentioned above, the petitioner was a consenting party to the order which was subsequently cancelled by the Government. Therefore, he was not an aggrieved person to have filed this petition. The learned counsel referred to Order XXIII, rule 1, C.P.C. And a case reported as Karamat Ali v. Salamat Ali [PLD 2001 SC (AJ&K) 30]; and (ii) that no quota was ever issued for petitioner's Mills, as such it cannot be said that the same was transferred to respondent's Mills." 5. On the basis of points raised by both the learned counsel for the parties, the leave was granted vide the order of this Court dated 3-9-2003. 6. Mr. Abdul Rashid Abbasi, the learned counsel for the appellant, in support of his appeal vehemently contended that the writ petition filed by respondent No,1 before the High Court was not maintainable on account of non-impleadment of necessary party. The Notification dated 17-9- 2002, impugned in the said writ petition, was issued as a result of complaint of appellant which matter was even brought to the notice of the High Court in the shape of an earlier writ petition. The original undertaking which stood revived through the Notification dated 17-9-2002 regarding allocation of quota of wheat was also in favour of Kashmir United Flour Mills, which is in the sole ownership and proprietorship of the appellant. The appellant being the only beneficiary of the Notification dated 17-9-2002 and the said Notification also having been issued as a result of
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initiation of proceedings by the appellant, the same could not have been made impugned and set aside by the High Court without impleading the appellant as a party to the writ petition and affording him an opportunity of hearing. The learned counsel also pressed into service the submission that the writ petition was filed by suppressing the material facts especially not disclosing the fact that the Notification dated 17-9-2002, impugned before the. High Cowl, was issued at the instance of the appellant which has resulted not only into gross miscarriage of justice but a violation of the Constitution as well. The promissory estoppel/undertaking upon which the impugned judgment has been based and rendered in favour of respondent No,1, applies with much greater force in favour of the appellant because a prior undertaking/promise already existed in favour of Kashmir United Flour Mills, Sehala, Humak. The learned counsel also contended that the Notification dated 10-7-1998 issued in favour of respondent, Ch. Talib Hussain, was illegal and violative of the principles of natural justice for having been issued without the approval of the competent authority, in violation of Rules of Business and without hearing the appellant. The learned counsel further submitted that the Notification dated 10-7-1998 could have been recalled, withdrawn and cancelled without hearing respondent No,1 as the same was illegal and violative of the Rules of Business. No right of hearing could be claimed by respondent No,1 in respect of the Notification which itself was issued in violation of principles of natural justice and was also illegal on the other counts. According to the learned counsel the principle of 'promissory estoppel' has not been correctly applied by the learned Judge in the High Court. The said principle did not apply in favour of respondent No, 1. In any case, if the said principle is presumed to be applicable, the same applies in favour of the appellant with full force who has invested a huge amount worth millions of rupees as costs of plot only in addition to even a larger amount on the setting up of the Mills. It was also argued by the learned counsel that the Government was not properly impleaded in the writ petition and there was a gross violation of the relevant rules in this behalf, as such the writ petition was incompetent and liable to be dismissed. The learned counsel for the appellant in support of his contentions placed reliance on cases reported as Sardar Aftab Ahmed and others v. Maj. (Rtd.) Aftab Ahmed and 3 others (1999 MLD 187), Residents of Mirpur v. Mayor, Municipal Corporation, Mirpur and another (1995 SCR 332), Abdul Haque Indhar and others v. Province of Sindh and others (2000 SCMR 907), Mst. Walayat Begum v. Revising Authority, M.D.A. And 3 others (1999 MLD 1549), Mst. Rehana Aziz v. Mst. Shakeela Ashraf and 2 others (1998 SCR 281), Habib Sugar Mills Ltd. v: Registrar of Trade Unions, Government of Sindh and another (2001 PLC 441), The Engineer-in-Chief Branch through Ministry of Defence and another v. Jalal-ud-Din (PLD 1992 SC 207), Sultan Muhammad and others v. Chairman, Federal Land Commission, Islamabad and others (1990 SCMR 1364) and Syeda Alia Abbas v. Government of Baloshistan through Chief Secretary and 2 others (2001 CLC 600). 7. Controverting the arguments raised by the learned counsel for the appellant, Mr. M. Tabassum Aftab Alvi, the learned counsel for respondents Nos.1 to 3, urged with vehemence that the appellant had filed a writ petition earlier challenging the Notification dated 10-7-1998. The aforesaid writ petition was withdrawn by the appellant unconditionally and without any prayer to file a fresh one with the permission of the court. At the time of withdrawing the said writ petition, it was averred by the appellant in his application for withdrawal that his grievance has been redressed, therefore, he wants to withdraw the writ petition. Thus, after withdrawing the writ petition, which was based on similar grounds which have been raised in the present appeal, the appellant is precluded from lodging any appeal, as such he does not fall within the category of aggrieved person. According to the learned counsel, the appellant was a consenting party to the order which was subsequently cancelled by the Government, therefore, he could not file the present appeal. It was also contended by the learned counsel that no quota was ever supplied to the appellant's Mills at Sehala, Humak, as such it cannot be said that the appellant is an aggrieved person in the eye of
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law. The learned counsel in support of his contentions relied upon the cases reported as Government of Pakistan through Secretary, Ministry of Defence and another v. Gul Zaman and 8 others PLD 1993 SC (AJ&K) 8, Messrs Sindh Engineering (Pvt.) Ltd. Through Managing Director v. OTIS Elevator Company and 3 others 2000 CLC 1524, Karamat Ali Khan and another v. Sardar Ali and 29 others PLD 2001 SC (AJ&K) 30 Gul Sahib Din and others v. Jan Sultan Malik PLD 1982 SC 254, Chairman, Municipal Committee v. Habibullah PLD 1987 Azad J&K 135 and Mst. Bibi Gul and another v. Mst. Khor Bibi and 4 others 1997 MLD 964. 8. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be stated that vide letter dated 5-5-1997, Annexure 'F', three persons were shown as the proprietors of Kashmir United Flour Mills, Sehala, Humak, namely Ch. Talib Hussain, Sardar Muhammad Aziz and Zubaida Rasheed, wife of Sardar Muhammad Rasheed Khan and through the same letter a commitment of supply of 1000 tons of wheat per month was given to the aforesaid proprietors but vide the other Notification dated 10-7-1998,. Annexure 'H', the Government transferred the quota of wheat sanctioned in the name of Kashmir United Flour Mills to the name of United Kashmir Flour Mills, shown in the proprietorship of Ch. Talib Hussain. It was also mentioned in this Notification that the other shareholders of Kashmir United Flour Mills shall not be the shareholders in the new proposed Mills, i,e, United Kashmir Flour Mills. Against the Notification dated 10-7-1998, the appellant preferred a writ petition before the High Court on 15-10-1998 challenging validity of the above Notification, however, during the pendency of the case, due to out of Court settlement of the dispute between the appellant and the answering respondent, the writ petition filed by the appellant was dismissed as having been withdrawn vide the order of the High Court dated 21-12-2000. After the withdrawal of the above mentioned writ petition, the finality was attached to the Government Notification dated 10-7-1998 and due to provisions of Order XXIII, rules 1 and 3 of the Code of Civil Procedure, the appellant has no locus standi to file the instant appeal before this Court against the impugned judgment of the High. Court dated 25-6-2003. 9. An application was moved by Mr. Abdul Rashied Abbasi, the learned counsel for the appellant, that for the just and proper decision of the case, the original file from the Food Department of Azad Jammu and Kashmir may be summoned. After hearing the objections from the side of respondents, we felt it advised to summon the original file from the concerned Department. 10. Raja Ibrar Hussain, the learned Advocate-General, who appeared on behalf of Azad Government and Food Department, was asked by the Court to provide assistance to the Court with regard to following points:-- (i) Whether the Notification dated 10-7-1998 was withdrawn by the Government on the basis of complaint of appellant? And (ii) Whether the quota of wheat was ever given to Kashmir United Flour Mills, Sehala, Humak? The learned Advocate-General took a time of about three days, and told us that with regard to cancellation of Notification dated 10-7-1998 an application of the appellant dated 16-6-1998 is present in the original file of Food Department of AJ&K, wherein it has been prayed that Kashmir United Flour Mills is, in his sole ownership as the rest of the owners are no more its proprietors, therefore, the quota of wheat proposed in the name of Kashmir United Flour Mills may not be changed or shifted to other proposed Mills, i,e, United Kashmir Flour Mills, Rawat, Rawalpindi. The learned Advocate-General also placed on record a letter dated 30-10-2003 issued by Under Secretary of Food Department of AJ&K addressed to the Advocate-General, wherein it has been clearly mentioned that no quota of wheat was ever given to Kashmir United Flour Mills, Sehala, Humak. 11. The above situation shows beyond any manner of doubt that the contention of Mr. Abdul Rashied Abbasi that the quota of wheat which was supplied to Kashmir United Flour Mills, Sehala, Humak, was given to United Kashmir Flour Mills Ltd., 17-Miles, Kalyam More, Rawat, is devoid of any
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legal force and as such is hereby repelled. When the appellant never got any quota in the name of Kashmir United Flour Mills, Sehala, Humak, then he no more remains an aggrieved person in the eye of law to file the present appeal. As a matter of fact, the respondent's Mill in the name of United Kashmir Flour Mills has been set up by them alone and the appellant has no concern with the said Mills. In a case reported as Government of Pakistan through Secretary, Ministry of Defence and another v. Gul Zaman and 8 others (PLD 1993 SC (AJ&K) 8) it was observed by this Court that an appeal to Supreme C Court can be preferred by a person who is aggrieved by the order or decree passed by the High Court. 12. The contention of the learned counsel for the appellant that the writ petition filed by respondent No,1 was liable to be dismissed due to non-impleadment of Government through Chief Secretary is also a question which could have been raised by an aggrieved person; such a question cannot be raised by a person who comes in the Court as a pro bono publico. After the withdrawal of previous writ petition by the appellant unconditionally, without seeking the permission to file a fresh one and stating categorically that his grievance has been redressed, any objection on behalf of appellant with regard to non-impleadment of parties or challenging the Notification dated 10-7-1998, which was restored by the High Court, becomes meaningless. It was purely a matter within the competence of the Government to raise such an objection but the Government did not raise such an objection and as such the controversy between the respondent and the Government has been finally resolved. It may also be added that the objection with regard to non-impleadment of parties is to be raised in the earliest opportunity. At the time of seeking leave by this Court, this point was not taken up by the appellant nor the leave was granted on this point. However, during the course of arguments for the first time this point was taken up which, for the above stated reasons, merits no consideration and also stands repelled It may also be added that on the basis of sanction accorded in the name of Raja Bashir Ahmed Khan, the written statement was filed by 'him in the High Court on behalf of Government /official respondents. 13. Order XXIII, rule 1 of the Code of Civil Procedure permits Withdrawal of suits. Sub-rule (1) of rule 1 of the aforesaid Order contemplates withdrawal of the suit which can be done at any time without prior permission of the Court but under sub-rule (2) of the said Order, the plaintiff may, on an application, withdraw from the suit with liberty to institute a fresh suit. Where he does not desire to institute a fresh suit, he can withdraw his suit and permission to withdraw is not necessary but where an application for withdrawal has been filed, the Court cannot decide the suit on merits. The object of the rule is to prevent a plaintiff from filing a fresh suit after having failed to conduct the first one with care and diligence. Further in permitting a fresh suit, the rule seeks to prevent technicalities from defeating justice. The plaintiff has the right to withdraw his suit whenever he desires but cannot file a fresh suit on the same subject-matter. 14. Now we would like to advert to the case-law cited by the learhed counsel for respondents Nos.l to 3. In a case reported as Messrs Sindh Engineering (Pvt.) Ltd. Through Managing Director v. OTIS Elevator Company and 3 others (2000 CLC 1524) it was observed that if a suit is withdrawn by a party under Order XXIII, rule 1, sub-rule (1), C.P.C. Unconditionally, he is precluded from bringing a fresh suit under sub-rule (3) of rule 1 of the aforesaid Order on the same cause of. Action. In a case reported as Karamat Ali Khan and another v. Sardar Ali and 29 others (PLD 2001 SC (AJ&K) 30) it was observed that a suit under Order XXIII, rule 1, sub-rule (1), C.P.C. Could be withdrawn at any time without the prior permission of the Court but under sub-rule (2) of the said rule, plaintiff could, with permission of the Court, withdraw from the suit with liberty to institute fresh suit. Where plaintiff did not desire to institute a fresh suit, he could withdraw his suit and permission to withdraw was not necessary. The object of rule 1 of the aforesaid Order was to prevent a plaintiff from filing a fresh suit after having failed to conduct the first one with care and diligence. Plaintiff had the right to withdraw his suit whenever he desired, but he could not file a fresh suit on the
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same subject-matter unless permission was sought for filing a fresh suit. It was further observed that by filing a fresh suit before withdrawal of pending suit, the provision of sub-rule (3) of rule 1 of the aforesaid Order could not be defeated by instituting a fresh suit before withdrawing the previously filed suit. It was further observed that what was not allowed to be done directly could not be allowed to be done indirectly. In a case reported a Gul Sahib Din and others v. Jan Sultan Malik (PLD 1982 SC 254) it was observed by the Supreme Court of Pakistan as follows:-- "We have examined the contentions of the learned counsel and come to the conclusion that the application for permission to withdraw the suit contains no particulars regarding the formal defects in the suit and all what was stated therein was that in the plaint there were formal defects which may result in detriment to the rights of the petitioners." In a case reported as Chairman, Municipal Committee v. Habibullah (PLD 1987 Azad J&K 135) it was observed as follows:-- "It is evident from the language of rule 1, Order XXIII, C.P.C. That Court enjoys vast power to permit withdrawal of the suit or part of it against all or any of the defendants in order to bring fresh suit to avoid a formal defect which may ultimately affect the result of the suit or on account of some other sufficient grounds but at the same time, the power is to be exercised not at the pleasure and sweat will of the plaintiff but keeping in view the interest of the parties in order to do complete justice." The present case is distinguishable because in the instant case while withdrawing the previous case, the appellant did not seek any permission from the Court for filing a fresh one. In another case titled Mst. Bibi Gul and another v. Mst. Khor Bibi and 4 others (1997 MLD 964) the earlier suit based on the right of inheritance was withdrawn without permission of Court to file fresh suit. Subsequent suit on the same cause of action was filed wherein some defendants were not impleaded while one new defendant was impleaded. No relief against the newly-added defendant was claimed. It was held that provisions of-Order XXIII, rule 1, C.P.C. Create complete bar to subsequent suit if instituted on the same subject-matter and between the same parties or their legal representatives or by or against the person litigating under the same title, on which earlier suit had been withdrawn simpliciter without seeking permission of the Court for filing fresh suit on the same subject-matter. It was further observed that impleading of new defendant in addition to defendants of earlier suit without seeking relief against such new party would not ipso facto render the second suit on the same subject-matter as maintainable nor by such act, the provisions of Order XXIII, rule 1(3), C.P.C. Could become redundant or defeated. Thus, the earlier suit on the same subject-matter having been withdrawn without seeking permission to file fresh suit on the same subject-matter, the subsequent suit on the same subject-matter was neither competent nor maintainable. It was held that addition of new party or non-impleading any previous party would not change complexion, nature and subject-mattef of the suit when the suit related to same subject-matter and was based on the same cause of action. 15. The contention of the learned counsel for the appellant is that the Notification dated 10-7-1998 regarding transfer of quota of wheat from Kashmir United Flour Mills to United Kashmir Flour Mills was issued without giving any notice to the appellant whose rights were adversely affected. This very Notification was previously challenged by the appellant by filing a writ petition which, as stated earlier, was withdrawn by the appellant without seeking permission to file a fresh one. This shows beyond any manner of doubt that when the appellant withdrew his previous writ petition stating therein that his grievance has been redressed, then indirectly he accepted the legality of the aforesaid Notification. Now he cannot turn round and say that this Notification was issued in violation of the Rules of Business and the same was a nullity. 16. The contention of the learned counsel for the appellant that the Notification dated 10-7-1998 was set aside on the -complaint of the appellant does not appear to be factually correct after
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seeing the original record produced by the Food Department of AJ&K. No doubt there is an application moved by the appellant to the Food Department stating therein that the quota of wheat proposed in the name of Kashmir United Flour Mills may not be changed or shifted to anyone else as he has now become the sole owner of the aforesaid Mills, but when the Notification dated 10-7-1998 was cancelled, it was categorically mentioned in the Notification' dated 17-9-2002 that the earlier Notification being in violation of the Rules of Business is cancelled. The appellant after challenging the Notification dated 10-7-1998 accepted its validity by withdrawing his previous writ petition. 17. Similarly the other contention of…
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