ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
C.P. No.D-546 of 2014.
|
DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
PRESENT:
Mr. Justice Nazar Akbar,
Mr. Justice Muhammad Saleem Jessar,
1. For orders on office objection as Flag ‘A’.
2. For orders on M.A.No.7603/2016
3. For orders on M.A.No.7604/2016.
4. For Katcha Peshi.
26.01.2017
Mr. Syed Fida Hussain Shah, advocate for the petitioners along with petitioners.
Mr. Munwar Ali Abbasi, Asstt. A. G.
-.-.-.-.-.-.-
NAZAR AKBAR, J- The petitioners are Government contractors and on 10.05.2014 they have filed joint petition for the following relief(s):-
(a) That this Hon’ble Court may be pleased to direct the respondents to make payment of all outstanding dues of the petitioners as mentioned in para No.4 of the petition towards their respective contract works completed by the petitioners, as appear in the bills prepared by the respondents, without further loss of time.
(b) ……….
(c) ……….
2. Precisely stated the claim of the petitioners was based on the contractual relationship with the respondents as averred in para No.3 & 4 of the petition, which are reproduced below:
3. That the respondents had given contracts of works viz. Construct of C.C Drains i/c Brick Payment (E.C.C Topping) for different villages Taluka Miro Khan Distt: Kamber Shahdadkot as well as Rehabilitation of Maturnity Home, Miro Khan, by the Administrator T.M.A Miro Khan which were completed by the petitioners to the entire satisfaction of all concerned.
4. That till completion of the above works the respondents did not make any payment to the petitioners towards their contract amount therefore, the petitioners completed the above works out of their own sources while going through hard efforts however, the respondents thereafter made nominal part payments towards huge liabilities of the petitioners, details regarding outstanding dues of each petitioner are submitted hereunder:
|
S.No. |
Name of petitioner |
Total Amount of Contract |
Part payment received |
Outstanding dues |
|
01. |
Fida Hussain |
Rs.4,08,034/- |
Rs.50,000/- |
Rs.3,58,034/- |
|
02. |
Gulam Mohammad |
6,30,997/- |
2,50,000/- |
3,80,997/- |
|
03. |
Mohammad Ali |
5,04,884/- |
50,000/- |
4,54,994/- |
|
04. |
Ghulam Fareed |
6,55,121/- |
Nil |
6,55,121/- |
3. On 13.5.2014, the first date of hearing, the following order were passed :
1. For orders on office objection Flag ‘A’.
2. For orders on M.A.No.2030/14
3. For orders on M.A.No.2031/14
4. For Katcha Peshi.
“13.5.2014.
Mr. Syed Fida Hussain Shah, adv. For petitioner.
---------
1. To be complied within seven days.
2. Granted.
3. Granted subject to all just exceptions.
4. Since contractual obligation issue is involved in the petition, we direct counsel for the petitioner to satisfy the Court about maintainability, however, in the interest of justice issue notice to respondents as well as A.A.G.
Sd/- Judge
Sd/- Judge”
After the above order, the petitioners never turned up to get their case fixed in Court. They were comfortable since it was either adjourned or discharged without being taken up by the Court. On 15.03.2016, after almost two years, and without complying the office objection, the counsel for the petitioners suddenly filed an application for urgent hearing and the case was ordered to be listed on 06.4.2016. On 06.4.2016, Assistant Advocate General, Mr. Munwar Ali Abbasi, informed the Court that respondent No.3, namely, Administrator, Taluka Miro Khan intends to engage a private counsel who will file his Vakalatnama on the next date of hearing.
4. On the next date i.e. 05.5.2016, the following consent order was obtained by the petitioners on the suggestion of counsel for respondent No.3: on the said date the petition was listed :-
1) For orders on office objection Flag ‘A’
2) For Katcha Peshi.
“05.5.2016.
Mr. Syed Fida Hussain Shah, Advocate a/w the petitioners.
Mr. Munwar Ali Abbasi, Asstt: A.G a/w Mr.Ameer Ahmed Narejo, State Counsel.
=======
Mr. Rabnawaz Soomro, advocate files vakalatnama on behalf of respondent No.3 and submits that the petitioners may be directed to file their claim in writing before the Town Officer, Town Committee, Miro Khan who will sympathetically consider the claim of the petitioners and make payment if their claim would be found genuine.
Learned counsel for the petitioners submits that the petitioners shall file their claim in writing before the Town Officer, Town Committee, Miro Khan within seven days.
In view of above circumstances, the said Town Officer is directed that after hearing the petitioners, he shall pass appropriate order within a period of 20 days. Adjourned to 11.8.2016.
Sd/-Judge
Sd/-Judge”
4. The question of maintainability of the petition remained un-answered and even without placing on record National Tax Number (NTN) in compliance of office objections, respondent No.3 in the cover of aforesaid consent order made the following payments to the petitioners:
1. Petitioner No.1 has received an amount of Rs.228,000/- & Rs.130,000/- aggregating to Rs.3,58,034/- on 12th July 2016 and 13th October 2016 respectively. Only one payment dated 12.07.2016 was through cheque and on 13.10.2016 receipt of total amount was issued by him.
2. Petitioners No.2, 3 & 4 were paid Rs.100,000/- each on 08.8.2016 towards part payment of their alleged contractual liabilities.
The remaining payment of petitioners No.2, 3 & 4 as claimed in para 4 reproduced above was not disbursed, therefore, on 21.11.2016, the petitioners filed Misc. Appln. No.7604/2016 for contempt of Court and on 30.11.2016 it was ordered to be fixed on 26.01.2017. Today this case is fixed for the following purposes:-
1. For orders on office objection as Flag ‘A’.
2. For orders on M.A.No.7603/2016
3. For orders on M.A.No.7604/2016.
4. For Katcha Peshi.
The petitioners have not complied with office objection. The office objection was to file their respective NTN. Even till today he has not filed NTN of the petitioners and without showing NTN, the petitioners have realized money from respondent No.3 as mentioned above. The petitioners’ counsel was directed to satisfy the Court that why the order dated 05.5.2016 obtained in collusion and by misrepresentation should not be recalled since he was on notice by the Court to answer the question of maintainability of the petition. It is pertinent to mention here that on 13.5.2014 Mr. Syed Fida Hussain Shah, advocate was directed to satisfy the Court on the maintainability of petition. Therefore, he cannot claim ignorance of the said order. It is indeed regretted that the Advocate General office as well as the counsel for respondent No.3 did not contest the petition on 05.5.2016 despite the fact that this Court in a judgment reported as Habib-ur-Rehman Unar and others v. Government of Sindh (PLD 2004 Karachi 728) has already dismissed several petitions of identical nature. It has been very elaborately discussed in the reported judgment that prayer clause (a) reproduced in para 1 above cannot be granted by this Court in exercise of its Constitutional jurisdiction. When confronted with this situation, the learned counsel has nothing to press his contempt application and has also suggested he does not press the petition.
5. In fact this Court has no jurisdiction to entertain this petition. Therefore the order dated 05.5.2016 was without jurisdiction. The relevant observations from the judgment reported in PLD 2004 Karachi 728 are reproduced below:
“39. The third and last point for consideration is that no other adequate and specific remedy is available and without which there would be a failure of justice. Adequate and specific remedy is provided by filing a suit for recovery of amount, specific performance of contract or damages. In the present Constitutional petitions the petitioners have prayed for the recovery of amounts. By filing such petitions the petitioners have avoided to make the payment of Court Fees, which are usually to be paid for the suit of recovery of amount or damages. Reliance is placed on a case of Musaffaruddin v. Chief Settlement Commissioner (1968 SCMR 1136).
40. In the above case the High Court had dismissed the petition with a short order on the ground that the writ petition could not be invoked for the enforcement of a contract. Hon’ble Supreme Court of Pakistan observed:
“On hearing the learned Advocate for the petitioner we found ourselves in complete accord with the view adopted by the learned Judges in the High Court that the only appropriate remedy open to the petitioner was to file a civil suit for the specific performance of the contact, if so advised.”
41. In the case of Shamshad Ali v. Commissioner 1969 SCMR 122, it has been observed:
“We feel that the writ petition filed by the petitioner was misconceived. At the highest it was a case of breach of agreement for which the remedy did not lie in the writ jurisdiction of the High Court. This petition is dismissed.”
42. Thus all the points which are required to be proved for the issuance of order of Mandamus have not been proved to exist, as such, no order of Mandamus can be issued.
43. The main question in these petitions is whether the breach of contract or contractual obligations are enforceable through writ petition, On this point the law is clear and settled as a Bench of 5 Hon’ble Judges of Supreme Court of Pakistan in a case of Momin Motor Co. v. R.T.A Dacca reported in PLD 1962 SC 108 at page 112 has observed as under :
“Learned counsel then attempted to argue that his client had contractual rights, because he had been made to spend a lot of money on making the road bus-worthy and the understanding was that no other permit-holder would be introduced in this route. The short answer to this contention is that contractual rights, if any, are not enforceable by recourse to writ jurisdiction.”
47. Analyzing the above legal position, we are of the considered view that it is a unanimous opinion of the Hon’ble Supreme Courts of Pakistan and India that a petition to enforce the contractual obligations does not lies, therefore, the petitions are not maintainable.” (Emphasis provided).
The Hon’ble Division Bench while dismissing the petitions to enforce the contractual obligations as not maintainable has relied on the following Supreme Court pronouncements:
1) 1968 SCMR 1136, M. Muzaffar-ud-Din Industries Ltd v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another.
2) 1969 SCMR 122, Shamshad Ali Khan v. Commissioner, Lahore etc.
3) PLD 1962 SC 108, Messrs Momin Motors Company v. The
Regional Transport Authority Dacca and others.
And therefore it has full binding force on this Bench.
6. The inescapable conclusion of the above facts and discussion is that the order dated 05.05.2016 was obtained by fraud and misrepresentation. The order was admittedly without jurisdiction and patently in violation of the judgments of the Hon’ble Supreme Court mentioned above. In these circumstances, the order dated 05.05.2016 is recalled. In recalling the said order we are fortified by the judgments reported as Chief Settlement Commissioner, Lahore V. Mohammad. Fazil Khan and others (PLD 1975 SC 331) and Nek Bibi v. Muhammad Tufail and others (1989 MLD 3990). The relevant paragraphs from the judgment of Hon’ble Supreme Court in PLD 1975 SC 331 at page No.339 and Page No.345 are reproduced below:
(Page 339)
“The first question which arises in this connection is whether an order obtained by practicing fraud on the Court, tribunal or authority concerned is a void order or only voidable. We are in respectful agreement with the view expressed by Waheeduddin Ahmed, J., in the case of Ali Iqtidar Shah Dara, that an order obtained by fraud is not void, but only voidable. It remains operative as long as it is not set aside, rescinded, or recalled, by a competent authority in proper proceedings. An order is to be treated as void only when it is made by a Court, tribunal, or other authority, which had no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose. Such an order would amount to “a usurpation of power unwarranted by law”, and accordingly it would be a nullity.
(Page 345)
It seems to us that while there are cases in which the power of a Court or tribunal of special or limited jurisdiction to suo motu recall or review an order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power to every authority, tribunal or Court on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practiced. We are, therefore, of the view that even a tribunal of limited or special jurisdiction has the power to suo motu re-call or review an order obtained from it by fraud.
The relevant paragraph of the judgment in 1989 M L D 3990 at page 3994 is as follows:
“The moment it is found that an order has been procured by fraud or misrepresentation, it is within the inherent powers of this Court to set aside the same under section 151 C.P.C. Reference in this respect can be made to Asghar Ali Mollah v. Surabindu Sen and others P L D 1968 Dacca 498 and Kartik Mondal alias Kartick Chandra Mondal v. Sreemati Pagali Dasi and others P L D 1969 Dacca 456. In the former case, the sale of the property by auction was in contravention of the order of the executing Court. The contention was that Korsha Jote right belonging to the respondent, in the High Court, in the plot in question was never ordered to be sold but by means of interpolation in the records of the case, his right and interest in the land was also sold out. The High Court in, the circumstances, held that the Court was quite competent to exercise its inherent power and to set aside the sale if it was satisfied that it was bad by practice of fraud on the Court. In the present case, since injustice has been done to the applicant by preventing her from appearing in the Court at the time of the hearing of the case, therefore, this injustice can be rectified by invoking the provisions of section 151, C.P.C. A Court has got the power of reviewing its own order on proper cause being shown and there are cases in which the Privy Council had allowed execution proceedings to be re-opened in review on the ground that there was no proper representation of the party affected. This being the position in law, limitation would not stand in the way of the applicant, if it is proved that the order in question was procured by misrepresentation and by practicing fraud on Court.”
7. In view of the above facts and legal position we are left with no option except to direct the beneficiary of the aforesaid order dated 05.05.2016 to return the benefits obtained by them by misrepresentation and patently on the force of an order which ought not have been passed by this Court for want of jurisdiction. Even a consent order passed by a Court of law which has no jurisdiction to entertain the lis is void and nullity. It is by now a settled law that when the Court has no jurisdiction, the parties by consent can not confer jurisdiction on Court. We cannot resist observing that respondent No.3 who was claiming to have complied with the order dated 05.05.2016 was the main person responsible for the order adverse to the interest of all the respondents, therefore, the petitioners who have realized the funds mentioned in para No.4 above pursuant to the order dated 05.05.2016 are directed to deposit the same in this Court within (15) fifteen days and the said amount shall be transferred back to the Treasury. If the order of depositing the amount in Court is not complied with by the petitioners within (15) fifteen days contempt proceedings shall be initiated against them as well as respondent No.3 for obtaining orders by playing fraud and then not complying with orders passed today. In case of non-compliance of this order, pending the possible contempt of Court proceedings the Additional Registrar shall obtain information about the bank accounts in the name of the petitioners by sending NIC number to the State Bank and then their accounts, if any, shall be attached to the extent of money recoverable from them.
8. In view of the above facts and law, this petition is dismissed as not maintainable. The contempt application has become infructuous. The Additional Registrar of this Court is directed to submit report on 10.02.2017 regarding compliance of the above order by the petitioners in Chamber for perusal by us and in case of non-compliance order shall be passed as suggested above.
Judge
Judge