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Petitioner: MUJEEBUR REHMAN ALVI and 11 others VS Respondent: ALVIA TABLIGH TRUST and others
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Zafar Ahmed Rajput Title: MUJEEBUR REHMAN ALVI and 11 others vs ALVIA TABLIGH TRUST and others Case No.: C.M.As. Nos.1223, 1224, 294, 295, 324 and 52 of 2016 in H.C.A. No.39 of 1983 Date of Judgment:2016-06-09 Reported As: 2017 CLC 1755 Result: Appeal dismissed
JUDGMENT
JUDGMENT IRFAN SAADAT KHAN, J.--- This High Court appeal has been filed against the judgment of learned Single Judge passed in Suit No.510 of 1977 dated 5.6.1983, whereby the Suit filed by the respondents for declaration, injunction accounts; etc. was allowed and thereafter decree in favour of the plaintiffs (present Respondents Nos.1 to 4) was issued. A further decree was also made for possession and handing over documents and to execute all deeds and documents for ensuring that the title of the Khurshid Salt Works (hereinafter referred as "KSW") be made in the name of Alvia Tabligh Trust. 2. Briefly stated, the facts of the case are that late Dr. Habibur Rehman Elahi Alvi (hereinafter referred as "Dr. Alvi") created a trust with the name "Alvia Tabligh Trust" (ATT) through a Registered Trust Deed No.562 of 1958 and got the same registered under Registration Deed No.527 of 1967. Among various immovable properties held by ATT it was also the owner of "Sindh Salt Works" (hereinafter referred as "SSW"). It is averred that some time in 1976 another salt works, namely, KSW was offered for sale by its owner respondent No.6 and Dr. Alvi became interested in purchasing the same. Since the KSW was owned by a Parsi gentleman i.e. Respondent No.6 -- Russi M. Dinshaw, it was apprehended that he might not agree to sell KSW to ATT, being a Muslim Trust. Thereafter Dr. Alvi assigned the duty to the appellant No.1 to negotiate the matter with Mr. Dinshaw. Conversely as per Appellant No.1 he, Appellants Nos.3, 4 and late Israrul Haque entered into a partnership on 19th August, 1976 and formed a partnership under the name and style of "Habib Ocean Industries" (hereinafter referred as "HOI"). It was averred on behalf of the appellants that the HOI executed a special power of attorney in favour of late Israrul Haque authorizing him to negotiate with the owner of KSW for purchase of the same. It was the claim of Dr. Alvi that the said KSW was
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purchased out of the funds of ATT, whereas it was the claim of the appellants that KSW was purchased out of the funds available with them and was not the property of ATT. As per the contention of Dr. Alvi when he realized that the appellants have fraudulently become the owner of KSW, he filed a Suit bearing No.510 of 1977 for.declaration, injunction and accounts, which was decreed in favour of the present respondents. Being aggrieved with the judgment and decree the appellants have filed the present High Court Appeal. 3. It is seen from the record that the matter proceeded before the learned Single Judge, who on the basis of averments made in the suit and on the pleadings of the respective parties framed the following issues:- "1. Whether the suit is misconceived and not maintainable as framed? 2. Whether the suit has been filed in accordance with section 92, C.P.C.? If not, what is effect? 3. Whether the defendant No.2 has purchased the Salt Work on its own behalf or on behalf of the Trust? 4. What should the decree be?" 4. The Issue No.2 was not pressed at the time of arguments. The learned Single Judge while passing the impugned judgment observed that the Issue No.3 involved the following additional questions:- "(i) Whether in fact defendant No.) was instructed by plaintiff No.2 to negotiate for the purchase of the Salt works for the Trust and in fact concluded the above negotiation on behalf of the Trust? (ii) Who provided the consideration? (iii) What was the conduct of the parties after the purchase?" 5. The learned Single Judge thereafter through his exhaustive judgment, comprising of forty-four (44) pages, decreed the suit by observing that ATT was the owner of the KSW and not the appellants. 6. Mr. Qadir Hussain Khan Advocate has appeared on behalf of Appellants Nos.1, 2 and 4 to 12 and submitted that the judgment and decree passed by the learned Single Judge is not in accordance with law as the learned Single Judge has not considered various evidences and documents produced before him and by misconstruing and taking into consideration some alleged admissions, which were never made, passed the impugned judgment against the appellants. He stated that the judgment passed by the learned Single Judge was the result of misreading and non-reading of the evidences and also mis-application of the applicable laws and rules. While elaborating his view point, the learned counsel submitted that the resolution passed for bringing the suit in the name of ATT was signed by four trustees only whereas the coram should be that of five members hence on this legal issue the suit was not maintainable, which aspect has been ignored by the learned Single Judge. He further submitted that even the suit was not signed by the plaintiffs, which had rendered the suit to be not maintainable, which aspect also has been ignored by the learned Single Judge. He submitted that no amended plaint even was filed by the respondents, thus, the locus standi of the persons bringing in the suit had always remained doubtful, which has not been considered by the learned Single Judge. 7. The learned counsel further submitted that the learned Single Judge has not considered that the funds from which KSW was purchased were not provided by ATT or Dr. Alvi rather the same were arranged by the partners of HOI, which aspect also has been ignored though various documents were produced during the course of the hearing before the learned Single Judge. He further submitted that ATT was already having a salt business and had no intention to purchase another business of the same nature and it was the appellants who thought of purchasing KSW from their available resources and thereafter purchased the same, which is evident from the fact that the agreement for sale was made between KSW and HOI, which aspect also has been ignored by the learned Single Judge. The learned counsel further stated that the learned Single Judge has also ignored the deposition of Appellant No.1 wherein he has categorically stated in his cross-
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examination that the documents produced by the Respondent No.1 bear his fake and forged signatures. The learned counsel submitted that the learned Single Judge has further incorrectly observed that HOI was a fake and bogus firm. The learned counsel then read out several paragraphs of the impugned judgment to support his view point. 8. The learned counsel further submitted that the learned Single Judge has further erred in observing that HOI had no funds to purchase KSW; whereas according to him from the record it was established that funds were provided by the partners of HOI. He further submitted that the learned Single Judge has not considered that the entire negotiations regarding the purchase of KSW was made by the appellants and has wrongly termed that they had acted as agents of ATT. He further submitted that the learned Single Judge has also not considered that there was no formal resolution of the trust with regard to the purchase of KSW and has incorrectly observed that non-availability of the resolution would not invalidate the transaction. He submitted that the part payment of the amount for purchase of KSW was arranged out of the amounts sent by Atta-ur- Rehman, brother of appellant No.1, from Nigeria. The learned counsel further submitted that no doubt part bank guarantee was arranged by Dr. Alvi but that would not mean that by simply arranging part bank guarantee by Dr. Alvi or ATT they would become the owners of KSW. The learned counsel further submitted that the learned Single Judge was not justified in relying upon a rough personal note of Dr. Alvi by ignoring the evidences and documents produced by the appellants. He, therefore, in the end submitted that the judgment passed by the learned Single Judge may be set aside. In support of his above contentions the learned counsel has relied upon the following decisions:-- (1) Sardar Muhammad v. Pakistan (PLD 1961 Karachi 232) (2) Mst. Kulsoom Bibi and another v. Muhammad Arif and others (2005 SCMR 135) (3) Anwar Ahmad v. Mst. Nafis Bano (2005 SCMR 152) , (4) Syed Arif Shah v. Abdul Hakeem Qureshi (PLD 1991 SC 905) (5 )Iftikhar v. The State (PLD 1983 SC 334) (6)Mst. Sughran and another v. Rehmat Ali (PLD 1965 Lahore 580) 9. Mr. Azmat Rehan, Appellant No.3, is present in person and has adopted the arguments of Mr. Qadir Hussain Khan Advocate and submitted that the learned Single Judge has relied upon some fake and forged documents for which he has also filed miscellaneous application and stated that appropriate legal action may be taken against the respondents for misguiding the Court by producing those documents. He further submitted that when KSW was offered for sale the appellant informed Mr. Ata-ur-Rehman about the same who at time was in Nigeria and who immediately sent an amount of Rs.1,50,000/- to the Appellant No.1 from which advance payment of earnest money was made to the owner of KSW, which aspect was ignored by the learned Single Judge. He further submitted that the learned Single Judge has also not considered that it was not out of the funds of ATT that KSW was purchased rather it was from the funds remitted in Pakistan by Ata-ur-Rehman or arranged by the appellants from their own resources through which KSW was purchased. He further submitted that HOI was formed by the appellant No.1 in which the appellant No.1, his son, late Israr-ul-Haque and he were partners having equal shares. He further stated that the learned Single Judge while passing the judgment has not considered various clauses of the Instrument of Trust, Articles 29 and 66 of Qanun-e-Shahadat Order, 1984 and Section 12 of the Trusts Act. He also stated that in view of the above submissions the judgment and decree passed by the learned Single Judge may be set aside. In support of his above contentions he has relied upon the following judgments: (1) Hakim Ali v. Muhammad Salim and another (1992 SCMR 46) (2) Yousaf Ali v. Muhammad Aslam Zia and others (PLD 1958 SC 104) (3) Syed Wajihul Hassan Zaidi v. Government of Punjab and others (PLD 2004 SC 801)
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(4 )Asif Ali Zardari and another v. The State (PLD 2001 SC 568) 10. Mr. Saadat Yar Khan Advocate has appeared on behalf of Respondents Nos.1 to 4 and has vehemently refuted the arguments advanced' by the appellants and submitted that the appellants have approached the Court with unclean hands. He stated that it is evident from the facts obtaining in the instant case that since Dr. Alvi apprehended that the Parsi owner of KSW would not sale his property to a Muslim Trust hence he instructed the Appellant No.1 to enter into negotiation with him for purchase of the KSW for ATT and all the funds in this regard were provided either by him or through ATT. He submitted that the appellants with mala fide intention created a fake partnership under the name and style of HOI and thereafter illegally claimed themselves to be the owners of KSW whereas, in fact, it was the ATT, which was the owner of KSW. He stated that the learned Single Judge while passing the impugned judgment and decree has examined a number of witnesses and except the defence witness and appellant No.1 the other witnesses have supported the version of the respondents. He submitted that complete account details, bank guarantee, security furnished for the bank guarantee and other documents were examined by the learned Single Judge from where it was proved that ATT was the owner of KSW. The learned counsel then read out various paragraphs of the impugned judgment and invited our attention to various depositions and exhibits. The learned counsel stated that from all these documents, it would become evident that ATT was the owner of KSW and the appellants by playing fraud claimed that HOI was the owner of KSW. 11. While elaborating his view point, the learned counsel submitted that even from the deposition of Appellant No.1 it is evident that there had been inconsistencies and contradictions, as at one place he stated that the documents relied upon by the respondents were fake and forged whereas on the other hand admitted that the signatures made on other documents appear to be the same as available on Exhibits Nos.15/1 and 15/2, which the Appellant No.1 had termed to be fake and forged. He further submitted that the learned Single Judge has discussed the oral and documentary evidences produced before him and in the judgment has even reproduced some portions of the deposition of various witnesses to clarify the issue before him. He stated that it was the ATT which purchased KSW from its resources but the appellants with mala fide intention became interested in its illegal acquisition. He stated that the main purpose of forming HOI was to usurp KSW from ATT. He further stated that Appellant No.1 was in the habit of committing crimes and invited our attention to various newspaper cuttings of 1980 wherein a fine of Rs.9.0 million was imposed on Appellant No.1 under MLO 59 read with Sections 116 and 418 of Pakistan Penal Code. He submitted that perusal of Trust Deed would reveal that the Trust comprised of people like M/s. Ibrahim Ahmed Bawani, Akhtar Hussain, I.U. Khan, Inamullah Khan and Dr. Fazlur Rehman as its trustees. He further submitted that the witnesses who have recorded their statements were men of high integrity and honour as Witness No.1 was Syed Abdul Wadood was an Officer of National Bank of Pakistan, Witness No.3 Akhtar Hussain was a retired Civil Servant who had earned Hilal-ePakistan and had also served as Governor of West Pakistan, Witness No.4 Pir Mahfooz Ali was a renowned businessm an, Witness No.5 Aftab Ahmed Khan was a retired Managing Director of National Bank of Pakistan. According to him all these witnesses were men of reputation, integrity and honour who had given their statements in favour of ATT and all these aspects have elaborately and exhaustively being discussed by the learned Single Judge in his judgment. He further submitted that the decisions relied upon by the counsel for the Appellants and the Appellant No.3 are, firstly, distinguishable and, secondly, have no relevancy with the facts obtaining in this instant case. He. therefore, submitted that this High Court Appeal being bereft of any merit is liable to be dismissed with heavy cost. 12. Mr. Qadir Hussain Khan Advocate in his rebuttal reiterated his arguments advanced earlier and stated that the Appellant No.1 was acquitted by the Hon'ble Supreme Court of Pakistan in Civil
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Appeal No.396-K of 1990 through judgment dated 16.2.1992 hence no adverse inference in this regard could be drawn. 13. We have heard both the learned counsel for the parties and Appellant No.3 at considerable length and have perused the record and the decisions relied upon. 14. The only issue involved in this High Court Appeal is "Whether it is the ATT who is the owner of KSW or it was owned by HOI". It is noted from the facts that the Trust was registered in the 3ear 1967 and Dr. Alvi was its author, founder and principal donor of all the assets and properties including SSW. The appellant No.1 was a Trustee of ATT. The appellant No.1 was also a partner of HOI, which was alleged to be jointly owned by appellant No.1, appellant No.3 Azmat Rehan son of late Israrul Haque, late Israrul Haque (brother-in-law of the appellant No.1) and Asif son of appellant No.1. HOI was duly registered with the Registrar of Firms on 05.09.1977. Perusal of the record reveals that HOI was formed through a Deed of Partnership dated 19.08.1976 and comprised of the above named four persons as equal shareholders, with the main object among others to carry on business of fish farming and salt manufacturing etc. It was alleged that late Israrul Haque was given a special power of attorney by HOI dated 25.08.1976 to enter into negotiation with respondent No.6 with regard to sale of KSW. Sale agreement dated 28.08.1976 was entered between KSW and HOI wherein the appellants agreed to purchase KSW for a total consideration of Rs.7,50,000/-. It was agreed between the parties that a sum of Rs.1,50,000/- would be paid as earnest money, whereas the balance amount of Rs.6,00,000/- would be paid in 12 equal monthly installments of Rs.50,000/- each, commencing after six months from the date of execution of the agreement. It was also agreed that purchaser will furnish an irrevocable bank guarantee of any scheduled bank as a surety for the regular payment of monthly installments. Late Dr. Alvi however came to know that inspite of his instructions to the appellant No.1 to purchase KSW for ATT, the appellants by playing fraud have registered KSW in the name of HOI. Dr. Alvi then through his counsel served a legal notice dated 27.07.1977 on the respondent No.6 mentioning therein that it was the ATT which had agreed to purchase KSW through the appellant No.1, who is his son and who has setup a bogus firm HOI and through an unconcerned person have entered into an agreement with him for purchase of KSW. It was also brought to the knowledge of the respondent No.6 that all the payments were made to him through appellant No.1 on behalf of ATT. In the said legal notice Dr. Alvi categorically mentioned that the appellant No.1 is now trying to obtain a sale deed in his own name rather than in the name of ATT. The respondent No.6 was also advised to remain cautioned from the appellants. Dr. Alvi also published a public notice in daily DAWN of 25.07.1977 in this regard. The respondent No.6 then vide letter dated 13.08.1977 duly informed the counsel of Dr. Alvi to give him proper documents in this behalf. 15. The deposition of Syed Abdul Wadood (witness No.1), an officer of NBP, clearly reveals that he was Manager of Liaquat Bazar Branch and account No.8075 was maintained in the name of HOI. In the said Branch account No.7767 was also maintained in the name of SSW operated by ATT. He has affirmed that cheque No.E-2219157, dated 27.11.1975, for Rs.50,000/- was drawn through cash and the payment of the said cheque was made to the appellant No.l. Mr. Wadood in his statement has given a series of cheque numbers wherein different amounts were withdrawn from time to time by the appellant No.1 from the account of SSW. 16. The deposition of Dr. Alvi, witness No.2, reveals that he founded the Trust in 1958 and the entire assets of the Trust were contributed by him. He stated that in 1975 he came to know that KSW was for sale, which was owned by Dinshaws, and thereafter convened a meeting of the Trustees wherein it was decided that efforts should be made to purchase KSW. Since it was apprehended that ATT was a Tableeghi Trust which main object was to propagate Islam in Pakistan etc., the Parsi owner of KSW might not agree to sell it to ATT being a Muslim Trust, hence he entrusted the appellant No.1 with the duty to enter into negotiations with the said Parsi gentlemen. He has stated
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that all the negotiations in this regard were made by the appellant No.1 on behalf of ATT who in November 1975 informed him that he had been successful in negotiating with Dinshaws for purchase of KSW at a consideration of Rs.7,50,000/-. The appellant No.1 also informed Dr. Alvi that a sum of Rs.1,50,000/- was to be paid as earnest money, whereas the balance amount of Rs.6,00,000/- would be paid in 12 monthly installments of Rs.50,000/- each and a bank guarantee in this regard also has to be furnished. Dr. Alvi categorically stated that it was he and not the appellants who had arranged the bank guarantee as well as the earnest money. It is an admitted position that in arranging the bank guarantee the properties owned by Mst. Iffat-un-Nisa (wife of Dr. Alvi) were kept as security with Muslim Commercial Bank (MCB). According to Dr. Alvi all the amounts paid for the purchase of KSW were arranged and given by him or ATT from time to time to the appellant No. 1 . He further stated that appellant No.1 do not have sufficient funds of his own rather he was given salary as Manager of SSW hence there could be no question of payment of any amount either by the appellant No.1 or by other appellants. It has further been mentioned that by purchasing KSW for ATT the objectives of the Trust will be advanced. He further stated that Mr. Pir Mehfooz, who was his friend, helped him in obtaining bank guarantee from MCB. In the said deposition he has categorically stated that after issuance of the bank guarantee in favour of KSW, Dinshaws delivered the possession to ATT. It was also stated that not only the amount pertaining to the purchase of KSW but also with regard to certain repair works in KSW was paid by him to the appellant No.1 for the said purpose. He has categorically stated that when he saw agreement of sale between HOI and KSW he asked the appellant No.I that how Israrul Hague has become a partner in HOI and the appellant No.1 informed him that it is a bogus partnership firm upon which he became annoyed and asked the appellant to bring all the documents in this regard and thereafter all the documents were handed over to him by the appellant No.1. He has further stated that all the work of KSW was supervised by him and it was he who instructed the appellant No.1 to dissolve HOI. In support of his averments Dr. Alvi during his examination produced a number of documents before the learned Single Judge. He further stated that thereafter on his instructions HOI was dissolved and all the appellants withdrew themselves from the said partnership firm. He has also stated that the documents for dissolution of HOI were prepared by Mr. Chandio Advocate. He stated that when he called the appellants and other persons to come to his house to sign the documents of dissolution however they avoided to come. He has also stated that since he lost confidence in the appellant No.1, he directed his eldest son Anisur Rehman to start supervising the affairs of SSW who found that appellant No.1 acting as Manager of SSW has made some bogus entries in the accounts of SSW. It is seen that Dr. Alvi was examined at length and he produced a number of documents to prove that the amounts paid for purchase of KSW were through ATT. It is also noted that Dr. Alvi was thoroughly cross examined by different counsel appearing for the defendants (present appellants). Though the appellants have alleged that Trust was bogus and sham and has not donated a single rupee for the cause it was formed but in the deposition of Dr. Alvi has stated that he has donated substantial amount for the purposes of the Trust. Dr. Alvi has also admitted that after the entire amount was paid for the purchase of KSW, his wife got back all the title documents of the properties from the MCB deposited as security for obtaining the Bank guarantee and it was the appellant No.1 who brought all these documents from the bank to him. Perusal of Exhibit 15/1, which is a letter dated 05.11.1976 written by the appellant No.1 to Dr. Alvi clearly endorses purchasing KSW for ATT and also mentions that sale deed of KSW will be executed in favour of ATT for which funds were arranged by ATT, however, the signature on this document has been denied by the appellant No. 1. Exhibit 15/2 is also a letter of the same date wherein a breakup of the finances arranged for the purchases of KSW was given. The appellant No.1 has denied signing this document also. 17. In the deposition of Witness No.3 Akhtar Hussain he has stated that in a meeting he was
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informed by Dr. Alvi that KSW was on sale and that he wanted to purchase it. He also stated that in the said meeting the Appellant No.1 was also present when Dr. Alvi issued instructions to him, in his presence, to negotiate with the Parsi gentleman for the purchase of KSW. He further deposed that he was again called by Dr. Alvi after some time and informed him that successful negotiations for purchase of KSW have been made and asked him to arrange bank guarantee so that transaction could be completed. He further deposed that though he helped Dr. Alvi in obtaining the bank guarantee but it could not be arranged and thereafter Dr. Alvi through Pir Mahfooz obtained the bank guarantee from MCB. He further stated that in one meeting Dr. Alvi informed him that the Appellant No.1 has done something wrong and has managed to transfer KSW in his name. He further stated that thereafter a meeting of the trustees was called by Dr. Alvi and the Appellant No.1 was removed from the trusteeship of ATT. He further stated that in the said meeting it was also decided to initiate legal proceedings against Appellant No.1 so that KSW could be transferred in the name of ATT. He also…
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