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Petitioner: Ahmad Latif, Chief Operating Officer and 2 others VS Respondent: The Cane JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Shan Gul Title:Ahmad Latif, Chief Operating Officer and 2 others vs The Cane
JUDGMENT
Reported As: 2022 YLR 773 Result: Order accordingly Judgment JUDGMENT MUHAMMAD SHAN GUL, J.---This judgment will decide W.P. No.48553/2021 titled "Ahmad Latif Chief Operating Of ficer, etc. v . The Cane Commissioner , etc." 2. The facts of the matter are as follows. The petitioner is the Chief Operating Officer of G.B. Private Limited (formerly Pasrur Sugar Mills Ltd.) which operates and runs a Sugar Mill at Pasrur in Sialkot. On the request of private respondent No. 7, the Cane Commissioner , Punjab, by means of corres pondence-cum-complaint dated 17.7.2021 requested the District Police Of ficer, Kasur to register a criminal case against the petitioner . Correspondence-cum-Complaint "To District Police Officer , Kasur . Subject: REGISTRA TION OF FIR . Please find enclosed herewith application of Mr. Naveed Hussain son of Muham mad Yaqoob resident of Chak No.24/RB, Tehsil Safdarabad, District Sheikhupura wherein he has complained that Ahmad Latif, Fateh Muhammad, Kamran Zahoor and Binyamin of Messrs Pasrur Sugar Mills, District Sialkot purchased sugarcane from him amounting to Rs.2,200,000/- from his village Khuddian, District Kasur which falls in the limits of Police Station Khuddian, Tehsil and District Kasu r. Sugarcane was purchased without license, CPRs were not issued and payment has not been made so far . 2. Purchase of sugarcane without license is prohibited under section 17 of the Punjab Sugar Factories (Control) Act, 1950 read with Rule 12 of the Punjab Sugar Factories Control (Rules), 1950. Non-issuance of CPRs is prohibited under section 14 of the Act and non-payment of price of Sugarcane beyond the period of 15 days is prohibited under Rule 14(2) of the Rules, 1950 penalty of which is provided under section 21 of the Punjab Sugar
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Factories (Control) Act, 1950 which section has been made cognizable through the Sugar Factories (Control) (Amendment) Act, 2021. First Information Report may be registered against the accused Ahmad Lauf, Fateh Muhammad, Kamran Zahoor and Binyamin of Messrs Pasrur Mill District Sialkot." 3. The petitioner filed a Constitutional Petition bearing No.47206 of 2021 challen ging this correspondence. The matter was fixed for hearing on 26.7.2021 and at the initial date of hearing the following order was passed:-- "Contends that this petition raises the same issue of law inter alia in W.P. No.4291 8 of 2021 in which notices have been issued. 2. Issue pre-admission notice to the respondents in this petition as well. Mr. Saqib Haroon Chishti, A.A.G. present on Court's call accepts notice and shall file a reply to this petition on the next date of hearing. To be heard along with connected petitions. C.M. No.1 of 2021 3. Notice. Till the next date of hearing the impugned orders mentioned in para 9 of this petition shall remain suspended." 4. It is interesting to mention here that till 26.7.2021 no FIR whatsoever , on the basis of the correspondence of the Cane Commissioner had been registered. 5. However , an FIR dated 26.7.2021, on the basis of the correspondence of the Cane Commissioner , Punjab, was registered on 26.7.2021 at 1.20 p.m. It is pertinent to mention here that the order of the High Court reproduced above, suspending the operation of the correspondence-cum-complaint of the Cane Commissioner was passed before 11.00 a.m. on 26.7.2021 while the FIR in question was registered on 26.7.2021 at 1.20 p.m. This, even when the alleged occurrence is of a date much prior to 26.7.2021 and this gains importance and is determinative of the eventual shape that the decision in this constitutional petition shall take. 6. The counsel for the petitioner submits that the registration of FIR No.500/21 at Police Station Khuddian, Kasur is without any lawful authority and in fact void ab initio because what was passed by the High Court on 26.7.2021 on the application seeking interim relief was a stay order . Adds that a stay order is effective from the minute it is passed and does not have to be actually conveyed to any authority because it is not addressed to any authority and is rather aimed at temporarily bringing to a halt the order , correspondence, complaint or proceeding against which recourse has been had to constitutional jurisdiction. He submits that seen from any angle, viewed through any lens and measured by any yardstick, since the order suspending the operation of the correspondence of the Cane Commissioner was not addressed to any one in particular and rather only took life out of the correspondence temporarily and generally , the order passed by the High Court was a stay order for all intents and purposes and, therefore, effective from the moment it was passed. Submits that, therefore, all or any activity or exercise emanating out of, based upon or stemming from the correspondence of the Cane Commissioner was non- est. States that the letter-cum-complaint had been rendered vegetive! Rounds of by submitting that the registration of F.I.R. in question on the basis of the complaint of the Cane Commissioner was, therefore, certainly of no legal ef fect. 7. He also submits that under Article 199(4) of the Constitution, a High Court is empowered to grant interim relief by way of an interim order . Adds that Article 199 of the Constitution does not speak about or envisage any injunction. That in a petition under Article 199 of the Constitution, interim relief is sought under section 151 of Code of Civil Procedure, 1908 and which refers to interim orders and not an injunction. He further states that the ambit of interim relief provided by way of an order is wider than a temporary injunction granted under section 94, C.P.C. read with Order XXXIX, Rules 1 and 2, C.P.C. thereof, which is limited to specific grounds and which operates in specific and particular contexts. The learned counsel for the petitioner submits that cognizance by the police of a correspondence-cum-complaint that stands suspended by this Court is absolute nullity in administrative law and relies on "Muhammad Ayub Khuhro v. Pakistan, through the Ministry of Interior Government of Pakistan and 2 others" (PLD 1960 SC 237). Adds that the foundational basis being void all subsequent orders fall to the ground. Highlights "Moulana Atta-ur-Rehman v. Al Haj Sardar Umar Farooq and others" (PLD 2008 SC 663) and "Yousaf Ali v. Muhammad Aslam Zia and 2 others" (PLD 1958 SC 104).
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8. Learned AAG has quite vociferously opposed the petition and submits that while some part of what the petitioner says may be true and possibly correct, the argument has to be measured with the fact that the letter-cum-complaint was addressed to the police much before the crucial date of 26.7.2021 (i.e. on 17.7.2021) and the offences complained of had taken place even before. He states that, therefore, the activity complained of has no bearing on the criminality of the petitioner or on the factum of the occurrence and hence the resultant FIR could not be declared to be of no legal effect, especially , because the basis on which the Constitutional Petition No.47206/2021 was filed (in which interim relief was provided by means of suspending the letter-cum-complaint) is yet to be judicially determined and only a temporary restraining order in the nature of prohibition has been passed. Adds that in the event W.P. No.47206/2021 is dismissed eventually , the letter-cum-complaint shall be brought back to life and shall stand resurrected and hence any declaration at this stage shall be premature, preemptive and, hence, unwarranted in law. Learned AAG has relied on the cases of "Aamir Shehzad v. The State and another" (PLD 2005 Lahore 568 ) and "Province of Punjab v . Zafar Ali Shah" ( 1994 SCMR 482 ) to reinforce his submissions. 9. The counsel for respondent No.7 i.e. the person on whose complaint the Cane Commissioner addressed the correspondence to the District Police Officer concerned, has adopted the arguments of the learned AAG and submits that there is no need for this Court to interfere in the matter . He further submits that the respondent supplied sugarcane to the petitioner and received part payment. That rest of the payment is still due to him and any interference at this stage will compromise the said payment. 10. The issue before this Court can be encapsulated in a nutshell. This being whether the order passed on 26.7.2021 in an application under section 151, C.P.C., filed alongside, and for seeking temporary relief in Constitutional Petition No.47206/ 2021 is a stay order or an injunction? This is the only question before this Court because if it is a stay order all consequential activity ensuant to the stay order becomes irrelevant and stands eclipsed. However , not so, if it is an interim injunction. 11. The following order was passed on the application on 26.7.2021. C.M. No.1 of 2021 3. Notice. Till the next date of hearing the impugned orders mentioned in para 9 of this petition shall remain suspended." 12. It is manifest from a perusal of the Order passed by a learned Single Judge of this Court that he has suspended the operation of the correspondence-cum-complaint and by doing so has tempor arily halted the operation of the impugned order . In the case of Messrs Pak Furnishing Stores PLD 1985 Karachi 201, a learned Single Judge has defined the term "suspend" in the following manner: - "The word 'suspend' has been defined in Black's Law Dictionary as follows: 'Suspend: to interrupt, to cause or cease for a time, to postpone, to stay, delay or hinder to discontinue temporarily , but with an expectation or purpose of resumption, to cause a temporary cessation as of work by an employee. In Ballantine's Law Dictionary the word 'suspend' has been defined as follows: 'Temporarily inactive or inoperative, held in abeyance'. The word 'suspend' does not connote the meaning of cancellation or revocation of any permission or licence. It only temporarily deprives of the permission or privileges under the permission." 13. The practical effect of a stay order varies, depending on the context. Where the public authority has yet to make a final decision, the grant of stay prohibits it from taking further steps to make a decision. According to De Smith, where the final decision has been made but not yet implemented, a stay will preven t implementation of the decision which is suspended for the time being and any formal order that is so suspended is treated as temporarily being of no effect. Unlike an injunction, a stay of proceedings is an order directed not at a party but at the decision making process of the decision-maker . If the order passed by this Court dated 26.7.2021 is measured in these terms then it becomes clear that from all angles and in terms of any benchmark, the order qualifies as a stay order since it suspends the operation of the correspondence-cum-complaint in general and not by addressing it to a particular party or individual. 14. In Halsbury's Laws of England, 4th Edition, Volume-37, it has been noted that a stay puts a stop on the further conduct of proceedings. Therefore in its general meaning, 'to stay' is to forbearto act, vr to stop. A stay is generally
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a suspension of the case or of some designated proceedings whereas an interim injunction is a judicial order operating in personam and requiring a person to whom it is directed to do or refrain from doing a particular thing. An injunction and a stay have typically been understood to serve different purposes. While the former is a means by which a Court tells someone what to do or not to do and operating in personam, by contrast a stay operates upon the proceedings itself, postponing some portion of the proceedings or temporarily divesting an order of its enforceability (Black's Law Dictionary 6th Edition 1990 at Page-1413). Both, a stay and an injunction can have the practical effect of preventing some action before legality of that action has been conclusively determined. A stay achieves this result by temporarily suspe nding the source of an authority to act and not by directing the actors' conduct. A stay simply suspends variation or modification of the status quo. 15. It may also be worthwhile to mention here that in constitutional petitions, stay orders are granted against public functionaries and not prohibitory orders by way of injunction unless the language so prescribes and which language is conspicuously amiss in the present matter before this Court. According to a judgment of the Sindh High Court "Ardeshir Cowsjee v. Province of Sindh" (2002 CLC 284), "a stay order obtained in constitutional jurisdiction is passed under Article 199 and not under Order XXXIX; Rules 1 and 2, C. P.C. " The order dated 26.7.2021 since it is not addressed to any person and does not have any recipient and merely seeks to take life out of the correspon- dence-cum-complaint dated 17.7.2021, is a stay order . In this respect, very learned observations have been recorded in "Karam Ali and others v . Raja and others" ( PLD 1949 Lahore 100 ). 16. It may be added here that the Cane Commissioner was not restrained from writing to the police. The suspension order passed by the High Court did not direct him to do anything. Its effect was to make the letter-cum- complaint non-existent in law and take away the ef fect of the said letter-cum-complaint. 17. In the case reported as "Messrs Shoaib Bilal Corporation v. The Commissioner of Income Tax and another"( 1993 PTD 332), where the question in issue was whether in the presence of a stay order by the High Court suspending tax assessment, the plea of the revenue officials pertaining to ignorance of the order was acceptable or not, it was held that "the communication of the order was not relevant. Even if the Income Tax official was not aware of the stay order granted by this Court, all proceedings taken subsequent to the stay order were a nullity in the eye of law ." 18. In the case reported as "M.A. Aziz Khan v. Jamshed Ali Khan Mirza and 3 others" (1986 CLC 248), where the question pertained to a Director of the Housing Department having issued a title deed in the presence of the stay order of this Court, it was held, "even if the contention of the learned counsel about the Director not being informed of the stay order is correct, nevertheless, the order will have its effect from the moment it was made. Non- intimation would only have the effect that the person against whom the order of status quo is passed will not be punished for its violation." 19. In "Pervaiz Bashir Warraich and another v. Election Tribunal/District and Sessions Judge, Mandi Baha- ud-Din and 4 others" (2006 CLC 1407 ) it has been held that, "there is no cavil about the proposition that the prohibitory injunctions issued by subordinate courts under Order XXXIX, Rules 1 and 2, C.P.C. become operative upon service of those whom it directs to be effective but as regards stay orders issued by the Superior Courts of this country including this Court, these become operative the moment these are passed." Similar observations have been recorded in " Ms. Bushra Khanum v . Habib Bank Ltd. and others" ( 2003 CLD 528 ). 20. At any rate, the stay order/ suspensio n order passed by this Court in W.P. No.47206/2021 on 26.7.2021 was passed in the presence of a learned Assis tant Advocate General who accepted notice on behalf of the respondents and thus respondents were fully aware of the stay order . Additionally , the counsel for the petitioner has been at pains in informing the Court that the Moharrar of the relevant police station had also been conveyed the requisite information telephonically . He also volunteered to bring the Call Record Data (CDR) to reinforce his arguments, if so directed. 21. In "Messrs Hakimuddin Hamnusji & Sons v. Messrs Ghafoor Textile Mills" (PLD 1978 Karachi 152), it has been held that, "the nature and incidence of an order of stay as understood in our judicial system is that it is addressed and binds a subordinate Court, Tribunal or Authority whereas an injunction is essentially directed against a party and that an order of stay takes effect immediately being passed even if it is not brought to the notice
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of the subordinate court or authority , whereas an injunction becomes operative only upon being served on the party against whom it is so directed." 22. In "Syed Nazir Ahmad v. Syed Muhamma d Saeed and another" (PLD 1955 Lahore 34), this Court while discussing the status of a decree passed after proceedings of the civil court had been stayed by the High Court prescribed a test which has to be applied to see if an order is an injunction or a stay. It was held that when a High Court has power to declare any proceedings as being invalid at the time of final determination of the matter , it follows that the intention of passing a stay order was that such order is to be operative immediately upon its pronouncement . "One has only to answer the question: Had the High Court jurisdiction to take away by its order the jurisdiction of the lower forum in respect of the proceed ings? It is a power of an entirely different kind, a power to deprive proceedings of their validity . If the answer to the question be, as it ought to be, in the affirmative, there can be no doubt that the 'intention in passing the order was to take away jurisdiction from the moment the order was passed." 23. The power of granting a certiorari being available to a High Court by way of ultimate and final relief, allowing it to declare any exercise or activity as being of no legal effect, the Order providin g interim relief dated 26.7.2017 eminently qualifies, therefore, as a stay order! 24. The U.S. Supreme Court in NKEN v. Holder , Attorney General 556 U.S. (2009), drew a distinction between a stay and an injunction, explaining the root of the difference between the two "a stay pending appeal certainly has some functional overlap with an injunction, particularly a temporary one. Both can have the practical effect of preventing some action before the legality of that action has been conclusively determined, a stay achieves this result by temporarily suspending the source of authority to act and not by directing an actors conduct." 25. The above judgments clearly state that an injunction is issued against a party prohibiting it from doing a certain act whereas a stay is dispossessing the order stayed of its effective force. Referre d to by the U.S. Supreme Court in [556 U.S. (2009) above] as "judicial alteration of the status quo" i.e. placing the parties at a position where they were prior to the passing of the assailed and stayed order . The position might reverse in future by the final decision but for now the stayed order does not exist for the purpose of operation. EFFECTIVE TIME OF ST AY ORDER v . EFFECTIVE TIME OF INJUNCTION: 26. The question if an order staying the proceedings of a lower court takes effect from the time of its passing or when the order is communicated to the lower court was referred to a Full Bench of this Court in "Karam Ali and others v. Raja and others" (PLD 1949 Lahore 100). The reference was made since a number of judicial authorities passed by various High Courts (of the Indian sub-continent prior to Partition) held colliding views and the following question was referred to the Full Bench: "Does a stay order made by the High Court staying the execution of a decree or order under appeal take effect from the moment when it is passed or does it become operative only after it is communicated to the Court in which the execution is pending?" 27. A Full Bench of this Court evaluated all authorities and held that unlike an injunction, stay order , operates from the time it is made and at the very instant deprives the executing court of proceeding any further . This Court further evaluated if the proceedings so taken after the passing of stay order (before the communication of the same) could be allowed to stand or the those will be considered vitiated and held that if the order passed by the Higher Courts is of the nature of "Stay" and not "Injunction", the same is effective immediately upon its pronouncement and any action taken after the passing of such order before the communication of the same shall be invalid and will be liable to be recalled i.e. parties shall be placed at the position where they were at the time of passing of the stay order . "I respectfully agree with these cases where the distinction between stay order simpliciter and an injunction or prohibitory order has been brought out. A prohibitory order or injunction restrains a party from doing something and is necessarily addressed to the person whose act is intended to be restrained . Such order is not, therefore, effective unless it is communicated . But an order under Rule 5 is not and injunction or a prohibitory order in that sense but an order in the proceedings which give rise to a changed legal position the moment it is made. As pointed out by Woodroffe and Mookerjee JJ. in Hukum Chand Boid v. Kamalanand Singh I L R 33 Cal. 927, the
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question of communication of an order arises only in these cases where absence of the knowledge of that order is under the substantive law a defence to any action proposed to be taken on the ground of disobedience of that order . But no question of disobedience of an order arises in cases under Rule 5 because that Rule relates to the respective powers of the appellate Court and the lower Court and unlike Rule 2(3) of Order 39 has nothing to do with the disobedience of any order . Naturally the Court will proceed until it is apprised of the stay order and will require the party , resisting execution on the ground that a stay order by the appellate Court has been made, to produce that order , but this does not mean that the proceedings taken by it in ignorance of the stay order must be held to be with jurisdiction if as a matter of fact the stay order had been made though it was not communicated to it can, therefore, see no injustice or inconvenience if a sale in favour of an auction-purchaser is set aside or treated void on the ground of its having been held after a stay order was made. On the other hand, if communication to the executing Court were made a condition precedent to the operation of an order of stay , great inconvenience will result "A stay usually operates upon all subsequent proceedings, within the purpose of the stay order . " "The principle of the American cases and the English cases is in my humble judgm ent relevant to a determination of the point before us. I consider that both on principle and authority as well as on a plain construction of Order XLI, Rule 5 the answer to the question referre d is that a stay order under Order XLI, Rule 5 operates from the time that such order is made and not from the time it is communicated to the executing Court." 28. The rule decided by the Lahore High Court in "Karam Ali and others v. Raja and others" (PLD 1949 Lahore 100) was sought to be revisited in "Abdul Rashid Khan and 2 others v. Mst. Nasim Akhtar" (1974 SCMR 509). Subsequent to a stay of proceedings granted by the High Court after a suit for possession was decreed, possession was delivered by the executing court to the Decree Holder . Upon an application of the Judgement Debtor informing the Executing Court about the prior stay order , the possession was restored i.e. parties were placed at the position they were at the time of passing of the stay order . The Hon'ble Supreme Court of Pakistan dismissed the appeal and held that: "........learned counsel for the petitioners, has contended that contrary view expressed by the Calcutta High Court, Dacca High Court, and Allahabad High Court should be taken into consideration and the decision of the Lahore High Court requires reconsideration. We have considered the contention of the learned counsel and in our opinion, the view expressed by the Lahore High Court is in accordance with law. It is not necessary to re- examine the question already decided." 29. In "Hail Abdul Jalil v. Javid Ahmad" (1983 SCMR 869), the Hon'ble Supreme Court of Pakistan held that when a stay order and an order alleged to be passed in contravention of the same are of the same date, the time of passing of each will be the deciding factory . "5. There is no dispute with the principle that stay order takes effect from the time it is passed irrespective of the fact whether or not it has been served on the person concerned. But the question in this case is whether the stay order dated 2.11.1976 was passed by the learned District Judge, Peshawar , prior to the passing of the ex parte order of ejectment by the Rent Controller on 2.11.1976. Since it is the respondent who alleges that ,the stay order was already operative when the learned Rent…
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