P L D 1961 (W (PLP)

SHABIR AHMAD, J ‑This appeal has come before this Court on being transferred from the Court of the Additional District Judge, Lahore, before whom it was pending. The order of transfer was passed on the 15th of June 1961 during the hearing of Wri petition No.653 of 1960 because it appeared that it was desirablei that this appeal should be heard by this Court. Most of the relevant facts in this appeal and the Writ petition are common for which reason both of them will be disposed of by this order.

2. Some of the relevant facts are these : In a meeting of tke Regional Transport Authority, Lahore, held from the .27th to 29th of May 1957, stage‑carriage permits were granted to the Ravi Cooperative Transport Society, Lahore, to run their buses between Lahore and Gojra via Sheikhupura, Shahkot and Lyallpur. The Society had applied for permits from Lahore to Gojra via Sharaqpur, Jaranwala and Lyallpur, but the Reigonal Transport Authority, for reasons which were stated at the hearing of the appeal presented against the grant of permits to the Board of Revenue, West Pakistan to be that some of the shareholders of the Society were relatives of an official in the Regional Transport Department, granted the permits for another route. AI‑Kisan Transport Company Limited Lyallpur, held permits for running buses between Lyallpur and Gojra and as they felt aggrieved against the order of the Regional Transport Authority they instituted an appeal before the Board of Revenue, West Pakistan. A number of stage‑carriage permits had been granted at the meeting held by the Regional Transport Authority Lahore, from the 27th to 29th of May 1957, but the grant of some of these permits was challenged as ultra vires by means of a writ petition (No. 815 of 1957) presented to this Court. This writ petition was accepted on the 14th of January 1958 by this Court whereupon a Member of the Board of Revenue, West Pakistan, consigned to the record room, on the ground that they had become infructuous, all the appeals presented against orders passed by the Regional Transport Authority, Lahore at the meeting held from the 27th to 29th of May 1957. The Tariq Transport Com pany, Lahore, appealed to the Supreme Court against the decision of this Court and the appeal of this company was accepted by means of a decision which is reported as the Tariq Transport Company, Lahore. v The Sargodha‑Bhera Bus Service, Sargodha etc. (P L D 1958 S C (Pak) 437), On the acceptance of the appeal by the Supreme Court, the appeals to the West Pakistan Board of Revenue, which had been consigned to the record room as having become infractuous, were restored by a Member of the Board of Revenue, and it was directed that they should be disposed of on merits. The appeal presented to the Board of Revenue by AI‑Kisan Transport Com pany was heard by Mr. M. W. Abbasi. Member of the Board of Revenue, West Pakistan, and was accepted on the ?th of May 1960 mainly on the ground that the Ravi Transport Society had been granted stage‑carriage permits for routes regarding which they had made no application and no reason was apparent on the record why the route applied for had been substituted by the route for which the permits had been granted. On the expiry of the permits granted to the Ravi Transport Society at the meeting of the Regional Transport Authority, Lahore, held from the 27th to 29th of May 1957, the Society applied for renewal of the permits granted to them. This application was considered by the Regional Transport Authority, Lahore, on the 14th of May 1960, and was rejected with the following order : ‑ "As the Appellate Authority has cancelled these permits, the question of renewal does not arise." Within a couple of days of the dismissal of their application for renewal of permits, trite Ravi Transport Society instructed a suit against the Regional Transport Authority, Lahorre, for a declaration that the order of the Regional Transport Authority, Lahore, dated the 14th of May 1960, whereby the renewal of the permits of the Society to run stage‑carriages between Lahore and Gojra. via Sheikhupura‑Lyallpur was refused, was void and inoperative and also applied for a temporary injunction. This suit was entrusted for trial to Malik Nazir Ahmad, Civil Judge, Lahore, but before it made any material progress it was with drawn. A few days after this withdrawal, however, another suit was instituted by the Ravi Transport Society against the Regional Transport Authority, Lahore. This suit was entrusted for trial to Mr. Z. A. Tirmizey, Civil Judge, Lahore, who, without hearing the Regional Transport Authority, issued a temporary injunction on the 23rd of May 1960, the result of which was that the Ravi Transport Society, Lahore, could ply their stage‑carriages between Lahore and Gojra via Sheikhupura, Shahkot and Lyallpur, in spite of the fact that they had no permit for that purpose issued by the Regional Transport Authority competent under the Motor Vehicles Act, 1939, to do so. The Al‑Kisan Transport Company, which is the appellant In this app‑‑al and the petitioner in the writ petition, applied under Order, I, rule 10 of the Code of Civil Pro cedure for being impleaded as a party to the suit as their interests would be adversely affected in the event of the success of the suit and were being affected by reason of the issue of the temporary injunction his application was not disposed of but on the 11th of June :

950. Mr. Z. A. Tirmizey confirmed the temporary injunc tion issued by him on the 23rd of May 1960 and adjourned the hearing of the case, including the application of Al‑Kisan Transport Company to be impleaded as a party to the suit, to the 19th of September 1960. Feeling that the relief it was entitle) to was being unjustifiably refused the Al‑Kisan Transport Company presented the Writ Petition under consideration for an order that the Ravi Transp3rt Society could not ply their buses without permits issued by the Regioaal Transport Authority. The petition was admitted to a hearing on the 23rd of August 1960. Before, however, the writ petition could be heard, the learned Judge hearing the suit instituted by the Ravi Transport Society accepted the petition of the AI‑Kisan Transport Company and impleaded it as one of the defendants to the suit instituted by the Ravi Transport Society, Lahore. After being impleaded as a party to the suit, the Al‑Kisan Transport Company put in an application on the 13th of February 1961 for the vacation of the temporary injunction issued on the 11th of June 1960 on which date, as already mentioned, the interim temporary injunction issued by the learned trial Judge was confirmed. By the time the application for vacation of the injunction came up for hearing, Mr. Z. A. Tirmizey Civil Judge, had been succeeded by Mr. Mahmud A. Soofi who, on the 8th of April 1961, dismissed the application of the AI‑Kisan Transport Company which had been presented on the 13th of February 1961. The main reason given by Mr. Mahmud A. Soofi for refusing to vacate the temporary injunction issued by Mr. Z. A. Tirmizey was that the balance of convenience was in favour of the Ravi Transport Society, Lahore.

3. It appears desirable to dispose of the appeal before taking up the writ petition. I might mention that when the argu ments in the writ petition started. Mr. Karam Elahi Chauhan, who appeared for the Ravi Transport Society raised an objection that as the question which the Al‑Kisan‑Transport Company wanted to' have determined by means of their writ petition also arose in the suit instituted by the Ravi Transport Society, Lahore, the writ petition should be rejected and the Al‑Kisan Transport Company Lahore, left to seek relief by means of the suit which was pending. The argument raised by Mr. Karam Elahi Chauhan made it clear that the facts that fell for determination in the writ petition were not materially different from those that arose in the appeal instituted against the order of Mr. Z. A. Tirmizey whereby he issued a temporary injunction on 11th of June 1960, and it was for this reason that the transfer of the appeal vi, this Court from the Court of the Additional District Judge, Lahore, before whom it was pending, was considered neces sary. At the hearing of the appeal the Ravi Transport Society was represented by Mr. S. M. Zafar, Advocate, but it continued to be represented by Mr. Karam Elahi Chauhan in the writ petition. The Regional Transport Authority, Lore, whish was a party both in the appeal and the writ petition, was represented by Maulvi Mushtaq 'Hussain, Additional Advocate‑General, West Pakistan while Mian Mahmud Ali and Mr. Muhammad Saleem Chaudhari represented Al‑Kisan Transport Company both in the appeal and the writ petition.

4. Before the appal was heard on merits, Mr. S. M. War, learned counsel for the Ravi Transport Soc4ety raised some pre liminary objections. The first of these objections was that the appeal was not to be considered as existing because it was not presented by a person competent to do so. The memorandum of appeal bears the signature of Mr. Muhammad Salim Advocate, who was admittedly one of the counsel for the A1‑Kisan Trans port Company in the suit in which the appeal was instituted. Some entries on the memorandum of appeal show that on the 27th of April 1961 it was taken out of the box meant for depositing the memorandum of appeal which lay outside the Court‑room of the District Judge, Lahore. When the memorandum of' ppeal was laid before Malik Abdul Hami d, District Judge, Lahore, on the 28th of April 1961, he passed an order transfer ring its hearing to the Court of Mr. S. S. Jan, Additional District Judge, Lahore. This order shows that at the time it was passed, Mr. Munir Sultan, a legal petitioner, appeared for the counsel for the appellant before the learned District Judge. The contention of Mr. S. M. Zafar was that Mr. Munir Sultan not being a pleader engaged by the Al‑Kisan Transport Company was incompetent to present the appeal and therefore, it must be held that no appeal had been presented at all in the Court of the District Judge with the result that the appeal has to be dismissed by this Court on the ground that the documents before the Court are not a memorandum of appeal. It appears to me that this preliminary objection raised by Mr. S. M. Zafar is entirely misconceived. The appeal was presented in the Court of the District Judge under Order XLIII rule 1 (r) of the Code of Civil Procedure, the relevant part of which reads as follows :‑ "An appeal shall lie from the following orders under the provisions of section 104, namely :‑ ************ ************ ************ (r) an order under rule 1, rule 2, rule 4 or rule 10 of Order XXXIX." Rule 2 of Order XLIII of the Code of Civil Procedure is to the effect that the rules contained in Order XLI of the Code shall apply,, so far as may be, to appeals from orders, Order XLI, rule 1 of the Code of Civil Procedure deals with appeals against decrees and clause (1) of this rule is in the following terms :‑ "Every appeal shall be preferred in the form of a memoran dum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded." That the document which Mr. S. M. Zafar wanted not to be recognised as a memorandum of appeal was preferred in the form of a memorandum of appeal signed by the Pleader of the appel lants admits of no doubt and the first condition occurring in clause (1) of rule 1 of Order XLI, Civil Procedure Code, was, therefore, satisfied. Bat, contended Mr. S. M. Zafar, the appeal could not be deemed to have been presented by the appellant or his Pleader and was a waste paper on that account. Clause (1) of rule 1 of Order XLI of the Code of Civil Procedure does not in so many words lay down that the appeal is to be presented by the appellant or by his Pleader as distinguished from its being preferred by one of them, but even if I assume that the law requires the presentation must be by the appellant or his Pleader, I do not see how, in the circumstances of the present case, that preliminary objection of Mr. Zafar can succeed. I have indicated already that the memo randum of appeal was recovered from a box kept outside the Court‑room of the District Judge, Lahore for the documents to be presented in Court being deposited therein. By placing the box outside the Court‑room, the learned District Judge had, at least indirectly, given an order to the general public that the documents which the law required to be presented either to him or to an officer appointed by him to receive documents had to be deposited in the box. If this order was illegal on the ground the a box could not be deemed to the an officer appointed to receive documents to be presented to Court, the fault lay with the learned District Judge and not with the litigant public. In this view of the matter it can hardly be doubted that the presentation of the appeal did not offend against Order XLI rule 1 of the Code of Civil Procedure. Mr. S. M. Zafar pressed into service a decision B of the High Court of Judicature at Lahore reported as K. b. Gauba v. The Iddo‑Swiss Trading Company Ltd. (I L R 17 Lah. 610) to support his cotention that the appeal was not properly preferred and presented. The facts of the case relied upon by learned counsel are so entirely different from those of the present case that the decision can lend no support at all to his argument. The facts of the case Mr. S. M. Zafar cited were that the memoran dum of appeal had not been signed by the Pleader appointed by the appellant but by another Pleader who had not been given any power of attorney either by the appellant or by the Pleader appointed by the appellant. It was in these circumstances that it was held that the appeal was not properly presented and thane can be no doubt that on the facts of that case that was the only correct decision. The first preliminary objection raised by Mr. Zafar is, therefore, overruled.

5. The next preliminary objection raised by Mr. Zafar was that the appeal was barred by time. He pointed out that the temporary injunction was issued of the 11th of June 1960 and tihe appeal, was presented in the Court of the District Judge, Lahore, in the end of April 1961, though under the law of limita tion it should have been presented within thirty days of the passing of the order appealed against while giving some of the material facts of the case in an. earlier paragraph, I have said that in spite of its application under Order 1, rule 10 of the Code of Civil Procedure, presented in May 1960, to be impleaded as a party before the issue of temporary injunction, the Al‑Kisan Transport Company was not made a defendant to the suit by Mr. Z. A. Tirmizey, Civil Judge, till the end of September 1960. It is, therefore, obvious that at the time the interim injunction was issued on the 11th of June 19. 0, the At‑ Kisan Transport Company was not a party to the suit. Mr. Zafar contended, however, that in spite of the fact that the Al‑Kisan Transport Company was nova party to the suit in which the temporary injunction was issued, there was nothing to prevent it from instituting an appeal against the order issuing the injunction. He asserted that any person aggrieved by a decree or order against which an appeal lies could according to the provisions of the Code of Civil Procedure, institute an appeal in spite of the fact that he was not a party to the proceedings in which the order appealed against was passed. The contention of Mr. Zafar that the Code of Civil Procedure does not enjoin that it is only a party to a suit who can file an appeal is not entirely correct because, one finds that the language employed in some of the provisions of the Code, for example, Order XLI, rule 4, would make it appear that it is only a party to a proceeding who can appeal against the order or decision passed therein. The only reasonable interpretation that can be placed on the language employed in the relevant provisions of the Code of Civil Procedure is that an appeal can be instituted by a party to the proceedings in which the order sought to be appealed against was passed and this conclusion is inevitable even if I proceed on the assumption that the Code of Civil Procedure did not in terms say that an appeal could be presented by a party to the proceedings in which the order appealed against was passed. It is inconceivable that the intention of the authors of the Code of Civil Procedure, parts of which devote meticulous attention to the question what persons could or should be parties o to proceedings in Courts, was that an appeal could be lodged by person who was not a party to the proceedings in which the order intended to be appealed against was passed. If this were so, numerous rules occurring in the Code of Civil Procedure with regard to impleading persons as parties to the proceedings governed by that Code would be entirely redundant and in the absence of very cogent proof to that effect I am not prepared to hold that the legislature which was responsible for passing the Code of Civil procedure had indulged in redundancy on a very prolix scale.

6. Mr. S. M. Zafar; Advocate contended next that the appeal was in any case barred by time. He said that the order granting the injunction was passed on the 11th of June 1960 and though the application made by the Al‑Kisan Transport Company to have that order vacated was rejected in April, 1961, the period of limitation could not be said to start from the latter date.' Learned counsel supported this contention of his by a reference to a decision given by me in Lever Brothers, Port Sunlight Ltd. v. Insaf Soap Faetory, Sargordha (2 Pak. L R (1957) Lah. 629 : P L D 1957 Lah. 523). If the decision relied upon by Mr. S. M. Zafar is subjected to a merely cursary glance it would appear to support his contention because I held. therein that where an order granting an injunction was riot; appealed against and an appeal was institued against an order refusing to set oside that injunction on an application made in that behalf, the appeal would be barred by time if it was instituted' after the period of limitation prescribed for an appeal against the order issuing the injunction had expired. Those ramarks were' made in case of the ordinary type, i. e., one in which a person who' appealed against an order passed under Order XXXIX, rule 4 of the Code of Civil Procedure was a party to the proceedings at the tithe when the order of injunction was passed. In the present case, how ever, the facts were rather peculiar and indeed unique. The Al‑Kisan Transport Company was not impleaded as a party to the suit till the 24th of September 19:)0, in spite of its application in that behalf, while the injunction had been issued on the l lth of June 1960. If an appeal had been lodged by the Al‑Kisan Transport Company before it was impleaded as a defendant under the orders of the Court passed on the 24th of September 1960, the appeal would have been dismissed on the short ground that it was presented by a person who wag not a party to the suit in which the injunction had been issued. By the time the Al‑Kisan Transport Company became a party to the suit as a defendant, the appeal against the issue of. injunction which under the law to force had to be presented to the Court of the District Judge, Lahore, within a month of the order appealed against, had become barred by time by many a month, and it is, therefore, obvious that the only course open to the Al‑Kisan Transport Company was to put in an application under Order XXXIX rule 4 of the Code of Civil Procedure for having the order \ issuing the injunction vacated. It is hardly open to question that the appeal was presented in the Court of the District Judge within the period prescribed by law for such an appeal, and I would, therefore, cold that the preli minary objection of Mr. Zafar that the appeal was barred by time is just as untenable as his other preliminary objection which has been disposed of already.

7. I will now take up the consideration of the appeal on merits. Mr. Mahmood Ali, learned counsel for the appellants, contended that the result of the injunction issued by Mr. Z. A. Tirmizey on the 11th of June 1960, was that the stage‑carriage permits of the Ravi Transport Society, Lahore, which had been cancelled by the Board of Revenue, West Pakistan, on appeal and had not been renewed by the Regional `transport Authority, Lahore became renewed till such time as the injunction remained in force and that the injunction was, therefore, invalid because under section 58 of the Motor Vehicles Act, 1939, it is only the Regional Transport Authority or an authority competent to hear appeals against the orders of the Regional Transport Authority which could issue or renew permits' to run stage carriages. The only reply which Mr. S. LEI. Zafar, learned counsel for the Ravi Transport Society, gave to this weighty argument of Mr. Mahmood Ali was that the order of the learned Civil Judge did not say that the stage‑carriage permits of the Ravi Transport Society had been renewed but this argument, which banks on the words used rather than their effect, is obviously without force. I am clear in my mind that if a Court cannot pass an order it cannot achieve the results that that order can achieve by purport ing to issue an injunction in a case in which a declaration is sought that an order of the competent authority whereby a relief was refused was ultra vires. The result of such an order is the passing of an order which a Civil Court cannot pass and I have no doubt that an order of this type, which is an indirect manner of granting a party a relief the Court cannot in a direct manner grant clears contravenes the law.

8. In view of what I have said above, I would hold that the order of Mr. Z. A. Tirmizey dated the 11th of June 1960, by which he, issued the injunction was misconceived and the order dismissing‑the application for cancelling that injunction was not correct. Consequently, I would accept the appeal and vacate the injunction issued by Mr. Z. A. Tirmizey on the 11th of June 1960.

9. I will now take up the consideration of the writ petition. In view of the decision given in the appeal, the writ petition has become infructuous and is therefore, dismissed.

10. As regards costs, I would direct that the Al‑Kisan Transport ‑Company shall have its costs from the Ravi Transport Society in both these matters. No costs are being awarded against the Regional Transport Authority, Lahore, because its position in both these matters was that the Al‑Kisan Transport Company was entitled to the relief prayed for by it. BASHIR AHMAD, J.‑I agree with my brother in the conclusion reached by him on all points, but would wish only to add that the objection based on non‑presentation of the appeal by the proper person is already covered by a case reported as Mst. Barkat v. Feroze Khan and another (I L R Lah. Vol. 26, p. 274) where the case‑law is fully reviewed, and also the case on which the learned counsel for the respondents has relied clearly distinguished. I am in complete agreement with the view, and the reasons on which it is based, expressed in that judgment. A. H. Appeal accepted.