P L D 1954 Sind 212 (PLP)

LARI, J.‑This is an application under Order 39 Rules 1 and 2 and section 151 C. P. C. praying that a temporary injunction be issued to the defendant from taking possession of plot of land known as Plot No. 74, C. F. situated at Clifton Karachi. The plot is admittedly an evacuee property. My brother Justice Inamullah ordered issue of ad interim injunction and notice on 12th May, 1953. The defendant appeared and contested the application primarily on two main grounds.

1. That the suit was barred in view of the provisions of section 16 sub‑clause 1 of Ordinance No. 19 of 1948 Pakistan Rehabilitation Ordinance, and

2. That the application itself was not maintainable because of section 12 of Ordinance No. 15 of 1949 and sub -clause 2 of section 16 of Ordinance No. 19 of 1948. Section 16 of Ordinance No. 19 of 1948 runs thus:- "Subject to the provisions of sections 12 and 34 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, no order passed by a Rehabilitation Authority under this Ordinance shall be called in question in any Civil Court in any suit, appeal, execution application or other proceeding." The order that is challenged by this suit is an order of allotment of the plot in question in favour of the defendant made under the provisions of the Ordinance. The allegations are that the plot was owned by one Mr. Brij Lal Aggarwal, an evacuee who left for Bharat after giving possession of the plot to the plaintiff in the year 1948. The plaintiff made certain constructions on the plot, has been paying rent to the Custodian of Evacuee Property and applied to the Rehabilitation authorities for the allotment of the land to him but the Rehabilitation authorities without any notice to the plaintiff allotted the plot to the defendant who was a high Government official. The order of allotment was alleged to be not in conformity with the provisions of the Ordinance and violates fundamental principles of judicial procedure. Section 16 of the Ordinance quoted above, no doubt, says that an order passed. by Rehabilitation authority shall not be called in question in any Civil Court in any suit, but it is well settled that even if jurisdiction of Civil Court is excluded it has jurisdiction to examine cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. Reference may be made to the Privy Council decisions Secretary of State v. Mask & Co. (AIR 1940 PC 105), Emperor v. Sibnath Banerji and others (AIR 1945 PC 159.), Muhammad Din and others v. Imam Din and another (AIR1948 PC 33=PLD 1947 PC 317). All these cases lay down that where an act of a tribunal is not in conformity with the provisions of the Act or the statutory tribunal has violated any of the fundamental principles of judicial procedure, the Civil Court can go into it in spite of the bar and give appropriate relief to the person aggrieved. So far as executive orders are concerned, there can be no question of violation of any fundamental principle of judicial procedure and in such cases Civil Courts have only to see whether the executive act complained of is or is not in conformity with the provisions of relevant statute. But where proceeding is judicial or quasi judicial Civil Courts have not only to see whether the act complained of is in conformity with the provisions or not but they can further see whether the act violates any of the principles of .the judicial procedure. Reference may be made to the case Abdul Majid Haji Muhammad v. P. R. Nayak (A I R 1951‑Bom. 440.). However, it is a question of fact in each case whether the allegations bring the act complained of within ‑the ambit of the rule mentioned above. The basis of the present suit is that although the plaintiff had made applications for allotment to the Rehabilitation authorities, they did not give notice of hearing of the matter and allotted the plot to the defendant behind the back of the plaintiff. This is not for the first time that such allegations have been made. It appears that in several cases valuable open plots were allotted without due publication and without taking adequate steps to ensure that claims of various applicants are properly investigated. It is, no doubt, the duty of Court in such cases to investigate and find out if orders passed are in conformity with the provisions of the Ordinances and whether fundamental principles of judicial procedure have been violated. It is stressed by Mr. Wahiduddin on behalf of the plaintiff that an order of allotment in respect of an open plot is not open to appeal or even revision by the Central Government. This is so and it becomes all the more imperative for the Civil Courts to entertain a suit where the allegations are made that allotment has ‑been made in the face of the provisions of the Ordinance and not in keeping with principles of natural justice, but unfortunately, application for injunction must fail on another ground. Section 12 sub-clause 1 of Ordinance No. XV of 1949 runs thus: " Property which has vested in, or of which possession has been taken by, the Custodian 'shall be exempt from all legal process, including seizure, distress, ejectment, attach ment or sale by any officer of a Court or any other authority, and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority." Sub‑clause 3 of section 16 of Ordinance No. XIX of 1948 is to the following effect:‑ " Subject to the provisions of subsection (1) no Civil Court shall be competent to eject or dispossess a person to whom any immovable property has been allotted, or leased by a Rehabilitation Authority or by a Custodian ox to issue an injunction or other order in relation to any act done or intended to be done by a Rehabilitation Authority under the provisions of this Ordinance." The scope of the two sections quoted above is very wide and to my mind there appears to be no doubt that no injunction of any kind can be issued by this Court in respect of evacuee property or in relation to any act done or intended to be done by a Rehabilitation Authority. A similar question came up before the Bench of the Lahore High Court in case Irshad Mian v. Ch. Muhammad Ishaq and others (P L D 1953 Lah. 293.) His lordship Mr. Justice M. R. Kayani observed:- " The shop in question is admittedly evacuee property. According to section 12 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949, evacuee property is exempt from legal process and no injunction or other order of whatever kind in respect of such property can be granted or made by any Court. The order granting temporary injunction is consequently void. The petition is accepted with costs and the order of the lower Courts vacated ". Same is the view expressed by my Lord, the Acting Chief Judge, Agha, J. in suit No. 524 of 1950. His Lordship observed:- " Section 12 bars the issue of any legal process mentioned in it ". My brother Inamullah, J., observed in suit No. 101 of 1953: " In view of the Privy Council decision mentioned above, though Civil Court has jurisdiction to entertain suit against the orders of the Rehabilitation authority passed without jurisdiction, it is doubtful if it can pass any order of injunction during the pendency of the suit in respect of the evacuee property ". My brother Muhammad Bukhsh, J., however, took a different view in suit No. 309 of 1952. In dealing with an application in that suit on 13th May, 1952, his Lordship observed:- " The only objection that the learned defence counsel could raise was that under the Ordinances Nos. 15 and 19 of 1948 and 1949, this Court can't go into this question and can't issue injunction. Reliance is specially placed on section 12 of Ordinance No. XV of 1949. In reply to this, the plaintiff's advocate has relied on Privy Council ruling reported in 1940 p. 105, where it was clearly laid down by their Lordships that even when the jurisdiction of Courts had been expressly excluded, the Court could go into the question whether the provisions of law have been fully complied with and whether the special Tribunal had really followed the proper procedure. I think this reliance must be followed

I accordingly confirm the rule:- Their Lordships of the Privy Council in the case mentioned by my brother Muhammad Bukhsh, J., did not deal with the effect of a provision like that contained in section 12 of the Ordinance No. XV of 1949. The jurisdiction to entertain a suit is not the same thing as the power to issue a particular process. A suit for permanent injunction can be entertained but under provisions of section 56 Specific Relief Act, injunctions cannot be issued in certain cases. Under the C. P. C., a Civil Court has got jurisdiction to entertain an application for execution but because of provisions of section 60 of the C. P. C., the executing Court cannot order attachment of a house in the actual possession of an agriculturist. Difference must be made between lack of jurisdiction to entertain a suit and lack of power to grant a particular relief. His Lordship does not seem to have noticed the difference between the two. It further appears that my brother Muhammad Bakhsh, J., took a different view in case No. 799 of 1952. An application for injunction in this case came up for disposal before his Lordship on 6th October 1952. He rejected the application for injunction with a short order which runs as follows:- "Prima facie the order is final under the law hence no intervention is possible ". In view of the comprehensive provisions of section 12 subsection 1 and section 16 subsection 3 of Ordinance No. XV of 1949 and XIX of 1948 respectively and the preponderance of authority, I am bound to hold that the application for injunction is barred, I would, however, take note of and deal with the contentions of the learned counsel appearing on. behalf of the plaintiff. The first contention on behalf of the plaintiff is that issue of temporary injunctions is regulated by Order XXXIX of the Code of Civil Procedure and it may be that ultimately the Court may come to the conclusion that permanent injunction should not be issued but that cannot prevent the exercise of powers conferred on it by Order

39. It is pointed out that clause (d) of section 56 of the Specific Relief Act forbids granting of an injunction which would interfere with public duties of any department of the Government of Pakistan or the local Government or with the sovereign acts of a Foreign Government, but notwithstanding this clause, temporary injunctions have been granted. Reference is made to the case Kazi Muhammad Ahbar v. Province of Sind, (P L D 1952 Sind 32). Their Lordships Tyabji, C. J. and Constantine, J., observed:- " It appears to us to be clear that the considerations upon which a Court may grant or refuse to grant an interim injunction, pending the disposal of the suit, may be, and often must be, entirely different from the considerations upon which a Court may grant or refuse to grant a perpetual injunction at the end of the suit ". Other authorities are to the same effect, and lay down that even though a permanent injunction may ultimately be withheld because of section 56 of the Specific Relief Act still temporary injunction may be issued if Order 39 C. P. C., warrants so. The above contention, however, overlooks the provisions of section 4 of the Ordinance. Section 4 of Ordinance No. XV of 1949 runs thus:- " The provisions of this Ordinance, and any rule or order made thereunder, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any such law ". Section 4 of Ordinance No. XIX of 1948 is as under " The provisions of this Ordinance and the rules made thereunder shall be in addition to and not in derogation of the provisions of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, and the rules made thereunder, and shall have effect notwithstanding anything inconsistent with the Ordinance contained in any other enactment or in any instrument having effect by virtue of such enactment ". The clear effect of the two sections is that any law inconsistent with the provisions of the Ordinances shall stand repealed so far as evacuee property or orders under the Ordinances are concerned. It is true that conditions required for a reveal by implication are stringent. It has been laid down in Kutner v. Phillips (1891 2 Q. B. 267.), that " A repeal by implication is only effected when the provisions of a later enactment are so inconsistent with or repugnant to the provision of an earlier one that the two cannot stand together., Unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied ; or unless there is a necessary inconsistency in the two Acts standing together ". The same is the effect of observations in Clyde Engineering Co., Ltd., v. Cowburn vide (37 Com. W L R 466). " The test of inconsistency, therefore, is whether proposed Act is consistent with obedience to directions contained in two statutes ". Keeping this test in view one cannot but come to this con clusion that the provisions of Order XXIX are inconsistent with and repugnant to the provisions contained in section 12 of Ordinance No. XV of 1949 and section 16 sub‑clause 3 of Ordinance XIX of 1948. These conclusions find support from. a Punjab (India) case (A. I. R. 1951 Punjab at p. 434). The question in the case was whether a Receiver could be appointed and whether the provisions of section 51 and Order 40 C. P. C., were repealed impliedly in view of section 13 and section 30 of the‑ Administration of Evacuee Property Act, 1950, then‑in force in Bharat. Section 13 runs as follows:- " (1) Any amount due to any evacuee in respect of any property which has vested in the Custodian or in respect of any transaction entered into by the evacuees shall be paid to the Custodian by the person liable to pay the same. (2) Any payment made otherwise than in accordance with subsection (1) shall not discharge the person paying it from his obligation to pay the amount due and shall not affect the right of the Custodian to enforce such obligation against any such person ". Section 30 enacted was to the following effect: "Any person who pays to or receives from any other person any sum of money‑in respect of any property which he knows or has reason to believe to be evacuee property shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both ". Their Lordships Harnam Singh and Soni, JJ., came to the conclusion:- Clearly, the provisions of section 51 and Order 40 C. P. C., are not consistent with sections 13. and 30 of the Act for the two laws cannot be obeyed at the same time ". The provisions of these Ordinances cannot possibly stand side by, side with Order 39 and it must, be held that section 41, of the two Ordinances repealed by implication the provisions' of Order

39. In view of the above the first contention fails. The second contention is to the effect that injunction is sought to be issued against a party and not against a Rehabili tation Authority and consequently such an application for injunction is not hit by the provisions of the two ordinances. Reference was made to the case of Lahore Electric Supply Co. Ltd: v. Province of Punjab (A I R 1943 Lah. 41). This was a suit against the Provincial Government and it was argued that it was impossible to issue an injunction against the Government as it would in fact mean an injunction against the Governor and that section 306 of the Government of India Act prohibited the making of any such order. Their Lordships .of the Lahore High Court, however, held that section 305 of the Government of India Act is no bar to an action against the Provincial Government. On analogy it is sought to be argued that although an injunction cannot be issued against the Rehabilita tion Authority, a party can be prohibited from proceeding in a particular manner. This contention fails to take note of the wordings of the provisions under consideration. Section 12 of the Ordinance exempts an evacuee property from legal processes and issue of injunction is barred in respect of every evacuee property. Section 16 sub-clause 3 of Ordinance No. XIX of 1948 also disables the Court from issuing injunction in relation to an act done by Rehabilitation authority. The issue of processes is not merely prohibited against any party but in respect of a certain matter. The prohibitions contained in the provisions, therefore, would hit every order of injunction, does not ratter to whom it is going to be addressed so long as it relates to an order under the Ordinance or is in respect of an evacuee property. Reliance was also placed in this connection on the case Punjab and Sind Bank Ltd. v. Muhammad Yakub and another (A I R 1952 Pb. 151,). There the question was whether a mortgage decree could be passed or not and justice Falshaw and Kapur, JJ. held that a decree under Order 34 C. P. C. could be passed. The case was decided on the basis that section 46 of the relevant Act enforced in Bharat took away jurisdiction of the Civil Court in respect of certain matters and the passing of a mortgage decree was not covered by the relevant provisions: Section 46 relied upon by the learned Judges was as follows:- "Save as otherwise expressly provided in this Act, no civil or revenue Court shall have jurisdiction‑ (a) to entertain oradjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or (b) to entertain or adjudice upon any question whether any person is or is not an intending evacuee; or (c) to question the legality of any action taken by the Custodian‑General or the Custodian under this Act or (d) in respect of any matter which the Custodian‑General or the Custodian is empowered by or under this Act to determine." It is obvious that the Civil Court had jurisdiction to pass a decree under Order 34 Rules 4 and 5 and the jurisdiction of the Civil Court was not barred in this respect, but the question of executing a mortgage arose in the same High Court. It was held that property could not be sold in spite of directions in the mortgage decree on account of bar of section 17 of the Act enforced in India, which is equivalent to all intents and purposes to section 12 of Ordinance 15 of 1949. In a case Sh. Muhammad Din Sh. Mehtab Din v. Thakar Sing and another (A I R 1952 Pb. 428), it was held by their Lordships Khosal and Harnam Singh JJ. that section 17 barred the sale of the mortgaged property in execution of a decree despite the fact that the decree itself contains a direction for the sale of the property. As I have said earlier jurisdiction to entertain a suit is one thing and to give a particular relief is quite different. A Civil Court may have power to entertain a suit but may be denied the power to grant a particular relief in that very suit. The two cases from Punjab (India) support this conclusion. It was open to the Civil Court to entertain a suit and pass a mortgage decree in as much as jurisdiction in this respect was not barred but when the question arose whether the decree could be executed or not provisions of the Act in the shape of section 17 stood in the way. The observations of their Lordships in this case deserve notice "The object of evacuee property law is not to give protection to the judgment‑debtor; its object is the preserva tion and administration of evacuee property and this so, irrespective of the fact whether the property is under mortgage or not. The evacuee legislation is directed to the property and not to the individual". Again their Lordships observed at p. 431:- "From what I have said above it is clear that the purpose of the evacuee legislation from the very beginning was to keep property intact and safe from any orders of a Court or other authority. The wording was gradually altered so as to make it more and more comprehensive. Even the appointment of a receiver is prohibited by section 17 as it finally stands". Any attempt to evade the provisions of section 12 of Ordinance No. XV of 1949 and sub‑clause 3 of section XVI of Ordinance No. XV of 1948 would defeat the very object of the legislation and hamper the scheme of economic rehabili tation and settlement of refugees. There is no warrant for circumventing the above provisions, and I am clearly of the opinion that whatever be the form in which injunction is sought in so far as it relates to evacuee property it is not sustainable in law. My attention was also drawn to the case Sardar Muhammad Nawaz Khan v. Bhagata Nand (A I R 1938 P C 219). Their Lordships of the Privy Council observed at p. 221: "The purpose of the prohibition in subsection 3 is to prevent claims which are intended to be decided by the Revenue Court being in effect carried before the Civil Court by altering the form in which the matter is raised. As many matters are brought under subsection 3 of section 77 it is important to notice that the mere fact that the 'dispute or matter' is one which might arise incidentally in a suit of the character mentioned in such a clause as (j) is not sufficient to exclude it from the jurisdiction of the Civil Court. For example, the ordinary suit in the Civil Court for declaration of title to immovable property would not become incompetent merely by reason that one consequence of the plaintiff getting a decree would be that as a proprietor he could not be charged with village cess. In such a title suit the `dispute or matter' of the action would not be the question of the plaintiff's liability to village cese. Of the present case it is clear that the matter in dispute is the very thing with respect to which a suit of the class described in (j) would be concerned as its .subject matter". The observations of their Lordships support the con clusions which I have reached. It is the substance and not the form of the relief which is sought has to be considered. The application itself says that injunction be issued to prevent the defendant from taking possession of the plot in question which is an evacuee property. Obviously, such an injunction cannot be granted to whomsoever it is sought to be directed because the dispute or matter is one regarding which no process can be issued by any Court or authority. Another‑‑case relied' upon on behalf of the plaintiff is The Corporation of Calcutta v. Bijoy Kumar and others (A I R 1924 Cal. 334.) It is argued that although section 56 (e) of the Specific Relief Act prohibited issue of injunction to stay proceedings in any criminal matter, their Lordships of the Calcutta High Court ordered issue of such an injunction. There is no warrant for this assumption. What their Lordships said is this: "It is consequently unnecessary to consider the terms of section 56 (e) of the Specific Relief Act, which provides that an injunction cannot be granted to stay proceedings in any criminal matter, and, which, it has been suggested, should be construed to imply that there is no bar to enjoining contemplated prosecutions where proceedings are only threatened and are not yet pending. Nor need we adopt the extreme view that an injunction should not be granted to prevent the institution of criminal proceedings for non‑compliance with requisitions of Municipal authorities merely because the person concerned when prosecuted for an alleged default, may be acquitted on proof that the action of the Corporation ultra vires". It is clear from the above that their Lordships did not hold that even in spite of prohibition in section 56 (e) of the Specific Relief Act they could issue an injunction. What they seemed to be of opinion was that the clause did not apply to contemplated prosecutions and was restricted to prosecutions already launched. I have given fullest consideration to the points that have been raised at the Bar and I am of opinion that though the suit may be entertainable if it be shown that the order of the Rehabilitation Authority challenged in the suit was not in conformity with the provisions of the Ordinance, no injunction whatsoever can be issued in respect of the property in question which is admittedly an evacuee property. Such an application is barred by the provisions of the two Ordinances. In fact the provisions of Order 39 under which the application has been made stand repealed in so far as evacuee property is concerned. The application consequently has to be rejected. I accordingly vacate the interim order passed by my brother Inamullah, J. and dismiss the application with costs. A. H. Application dismissed.