P L D 1956 Federal Court 50 (PLP)

MUHAMMAD MUNIR, C. J.‑

This is an application for review of the judgment of this Court in Civil Appeal No. 8 of 1952, Mirza Iftikhar Ali v. Mirza Akbar Ali etc., (P L D 1954 F C 208). In order to understand the nature and substance of the prayer in the application and the grounds on which it is made, it is necessary briefly to state the relevant facts. The dispute between the parties to the litigation relates to Masjid Wazir Khan which, together with the property attached to it, was made Wakf by Nawab Wazir Khan in 1641 by a deed under the seal of the Qazi of Lahore. By the deed, the Wakif appointed his elder son, Muhammad Saeed Khan, as the first and Mirza Muhammad Anwar, the other son of the Wakif as the next Mutawalli. On Mirza Muhammad Anwar's 'death the ‑‑office of Mutawalliship, according to the interpretation of the relevant provision in the deed accepted by both the Courts below and this Court, was to devolve on the arshad‑uz‑zakur of the male lineal descendants of Mirza Muhammad Anwar, Mirza Muhammad Saeed Khan having died sonless. The last Mutawalli of the Trust was Mirza Sir Zafar Ali who died on the 20th September 1942. Long before his death, to be more exact, on the 13th July 1936, the Mirza had, by an instrument; appointed his son Mirza Iftikhar Ali as the Mutawalli. On the death of the Mirza a dispute as to Mutawalliship arose among the members of the family and rival claims to the office were put forward by Mirza Akbar Ali, the son of the elder brother of Mirza Sir Zafar Ali on the one side, and Mirza Iftikhar Ali on the other. On 12th May 1948 Mirza Akbar Ali brought a suit in the Court of Mian Muhammad Saleem Sub‑Judge, 1st Class, Lahore, against Mirza Iftikhar Ali and his two brothers, Mirza Israrul Qadir and Mirza Anwarul Qadir. The plaint in the suit alleged that on Mirza Sir Zafar Ali's death the plaintiff had, according to the usage governing the Wakf, been elected a Mutawalli by the members of the family, that Mirza Iftikhar Ali was setting up his own title to Mutawalliship by alleging that he had not only been appointed a Mutawalli by Mirza Sir Zafar All long before his death when he was in perfect health but also in his death illness, that according to the provisions in the deed of wakf and the usage' governing the institution the plaintiff had a superior right to appointment as Mutawalli, and that Mirza Iftikhar Ali was wrongly in possession of the mosque and the properties attached to it, and praying that a declaration be granted by the Court to the effect that the plaintiff and not the defendant Mirza Iftikhar Ali was the rightly appointed Mutawalli. These allegations were controverted by Mirza Iftikhar Ali who in his written statement denied not only the existence of the usage by which the members of the family were entitled to elect the Mutawalli but also the fact that the plaintiff had ever been elected by the members of the family. He founded his own title to the office on his oral appointment by the last Mutawalli, Mirza Sir Zafar Ali, during his death illness. The Subordinate fudge framed the necessary issues in the case and after recording the evidence adduced by the parties in support or rebuttal thereof and hearing arguments held: (1) that there was no usage governing the institution by which the members of Mirza Muhammad Anwar's family were to elect the Mutawalli ; (2) that even if any such usage prevailed, Mirza Akbar Ali, the plaintiff, was not proved to have been duly elected by such members ; (3) that the defendant Mirza Iftikhar Ali was appointed by Mirza Sir Zafar Ali in his death illness as the next Mutawalli and such appointment was valid under law. The plaintiff's suit was therefore dismissed. From the decree dismissing the suit an appeal was taken by the plaintiff to the High Court where by their judgment dated the 2nd May 1951 Kayani and Rahman, JJ, upheld the finding that the plaintiff had not been duly elected as the Mutawalli of the institution, The learned Judges, however, proceeded to find that the evidence proved that the wakf was governed by a usage according to which the arshad‑uz-zakur of Mirza Muhammad Anwar's male descendants was to be chosen as Mutawalli by the male members of the family. They also upset the finding of the Subordinate Judge that Mirza Sir Zafar Ali during death illness had appointed the defendant Iftikhar Ali as the next Mutawalli, and observed that even if such appointment had been proved it could only have a temporary effect. On these findings the appeal was dismissed. Though the plaintiff's case had been negatived and his suit dismissed not only by the Subordinate Judge but also by rice High Court, Mirza Iftikirar Air defendant heeling aggrieved by some of the findings recorded by the High Court against him applied to that Court for a certificate in order to appeal to this Court, The requisite certificate having been granted, an appeal was lodged in due course which was heard by the full Court. The Court accepted the appeal and reversed the findings which had been recorded by the High Court against Mirza Iftikhar Ali. The opinion of the Court was written by Abdul Rashid, C. J., with which Shahabuddin and Cornelius, JJ. Agreed the fourth Judge Akram, J. delivering a dissenting opinion. the Court upset the findings of the High Court that the wakf was governed by a usage according to which the Mutawalli had to be elected by the male members of the family, that Mirza Sir Zafar Ali had not on death bed appointed Mirzi Iftikhar Ali as the next Mutawalli, and that even if any such appointment had been proved, it could merely have a temporary effect. On the first two points Akram, J. agreed with the majority but sail nothing on the third. His own judgment he based on the ground that since the deed of wakf provided that the office of the Mutawalli was to go to the arshad‑uz‑zakur of the family, there was in the deed a provision to the contrary, taking away from the Mutawalli the power to appoint a person who did not answer to that description and that Mirza Iftikhar Ali not being the arshad‑uz zakur could riot be appointed a Mutawalli. The‑ application for review alleges that in deciding these issues in favour of Mirza Iftikhar Ali the Court went wrong. The application puts two grounds for review in the forefront : (1) that the Bench was not properly constituted, because one of the Judges who sat on the Bench and concurred in the majority view was an old friend of Mirza Iftikhar Ali, and (2) that the appointment, of Mirza Iftikhar Ali by Mirza Sir Zafar Ali was illegal because (a) there is a provision in the deed of wakf relating to the appointment of Mutawalli according to which Mirza Iftikhar Ali could not have been appointed ‑a Mutawalli ; and (b) the last Mutawalli, namely, Mirza Sir Zafar Ali, had no authority to make the appointment which rested with the members of the family. Though on this application we did not require any argument from the respondent, the question whether an application for review lies has nevertheless to be determined at the very outset. In answering this question, the important distinction between an application for the rehearing of a decided case and reconsidering in a subsequent case a question of law previously decided must borne in mind. In the latter class of cases the view taken in Anwar v. Crown (P L D 1955 F C 185) is that this Court on whom rests the ultimate a responsibility of interpreting the law of the land is, like the Privy Council, entitled to change its opinion and to take a different vie from the one it has hitherto held. For other cases which support this proposition reference may be made to Tooth v. Power ((1891) A C 284), Ridslade v. Clifton (2 P D 276), Read v. Bishop of Lincoln ((1892) A C 644) In re payment of compensation to civil servants under Article 10 of Agreement for Treaty between Great Britain and Ireland ((1929) A C 242) and Attorney General of Ontario and others v. Canada Temperance Federation and others (A I R (33) 1946 P C 88) where it was held by their Lordships of pie Privy Council that they were at liberty to examine the reasons upon which an earlier decision of the Board was arrived at, and if they should fined themselves forced to dissent from those reasons, to decide upon their own view of the law. An application for the rehearing of a case, however, stands on a different footing and in this class of cases the Board had consistently refused to reopen the matter except where the law had been applied on a mistaken assumption of fact as was the case in North‑West Frontier Province v. Suraf Narain Anand (P L D 1949 P C 1) or where by inadvertence the Order‑in‑Council did not give effect to the inten tion of the Board as expressed in the judgment which appears to have been the position in Jatindranath Chorrdhury,v. Uday Kumar Das (58 I A 141). As explained in In re Payment of Compensation to Civil Servants under Art. 10 of Agreement for a Treaty between Great Britain and Ireland the result of decisions of the Privy Council in this class of cases is that there is no inherent in competency in ordering a rehearing of a case already decided by the Board, even when a right of property is involved, but that such an indulgence, which is of the nature of an extraordinarium remedium, will be granted in very exceptional circumstances.. We A think it is a salutary rule for us to follow and hold that we have, if in the circumstances we consider it necessary so to do, the power to review the judgment. The next question is whether in this case we should exercise that extraordinary power. As regards the first ground for review, namely, that one of the Judges being an old friend of Mirza Iftikhar Ali was disqualified from sitting on the Bench, all that we need say is that the allegation is scandalous. Friendship is too vague and general a term to he judicially recognised as a factor disqualifying a Judge to hear a cause to which one of tire parties is his friend. Such relationship, in the case of a Court like the Federal Court or the High Court, should never create an apprehension in the mind of a party that his cause will not b impartially heard and determined ; nor can it ever be urged that friendship with a party creates in the mind of the Judge such bias as to paralyse his mind from rightly adjudicating on the merits of the dispute or that for that reason the Judge become a party interested in the cause and therefore disqualified to be a Judge in that cause, The matter is essentially one of propriety and good sense, and though Judges art, always alive to the susceptibilities of the parties in this respect, the situation is entirely outside the principle that justice should not only be done but should manifestly appear to be done. It may be mentioned that at the commencement of tile hearing of the appeal the Judge concerned had himself pointed out his relationship with the appellant arid that tile objections to the constitution of the Bench which is now being stressed was expressly waived by the applicant. The findings of fact arrived at by this Court in disagreement with the High Court, namely that no usage had been proved governing the appointment of the Mutawalli and that Mirza Iftikhar Ali had been appointed by Mirza Sir Zafar Ali during death illness as his successor cannot be reopened or reviewed. The findings were recorded after hearing full arguments and on a, consideration of the entire evidence anal the reasons given by the High Court, and there is no allegation that any material fact which was apparent on the record escaped the notice of the Court. All that is alleged by Mr. Abdul Qayyum Khan is that the restrictions on the power of a Court to review imposed by the Code of Civil Procedure are not applicable to the Federal Court and that its powers to reopen and rehear cases finally determined are untrammelled and unrestricted. This contention, if accepted, would shake the very foundations of this Court's adjudications because on this view the losing party may always ask for a review of the judgment, however, carefully and thoughtfully delivered it might be. We therefore hold that neither of these questions, which are questions of fact, can be reopened. The second ground for review, namely, that the judgment of this Court proceeds on an erroneous conception of the law relating to wakfs need not detain us long if the true effect of the judgment sought to be reviewed is fully understood. With the possible exception of Mr. Tyabji's view expressed at page 622 of the 1940 edition of his book on Muhammadan Law that a death bed act of appointment of his successor by a Mutawalli cannot affect the power of the proper authorities to appoint another successor, whether such proper' authority is the wakif himself or the executor or the Court, the authorities are agreed that to the absence of a provision in the deed or a custom or a usage to the contrary, a F Mutawalli, if the wakif is not alive and has not left' an executor, may appoint his successor. The applicant's contention is that in the present case there is a provision to the contrary in the deed of wakf inasmuch as ft directs that only the arshad‑uz‑zakur of the male lineal descendants of Mirza Muhammad Anwar may be appointed the Mutawalli, 'but the judgment of this Court expressly recognises this position and gives , to the plaintiff the right to sue for the removal of Mirza Iftikhar Ali on the ground that he is not the arshad‑uz-zakur of the descendants of the wakif. This position is mentioned in two places in the judgment. In one place, it is remarked. "It is obvious that if an unsuitable person is appointed by the last Mutawalli. and he is not the arshad‑uz zakur out of the descendants of the wakif, it is open to any one. to institute a suit for the removal of the Mutawalli. If such a suit is instituted, it would be the duty of the Court to give effect to the provisions of the deed of wakf. In the present litigation, no issue was ever framed whether the appellant or the respondent was the arshad‑uz‑zakur, or whether any one out of the other living descendants of the wakif could be regarded as the arshad‑uz‑zakur". In another place, it is observed "It was next urged that there was nothing on the record to prove that Mirza Iftikhar Ali was the arshad‑uz‑zakur or that Mirza Sir Zafar Ali took into con sideration the claims of all the descendants of Mirza Muhammad Anwar before making the appointment. These contentions were not raised by the respondent by his pleadings and no issue was therefore framed as to whether Mirza Iftikhar Ali was or was not the most upright of the descen dants of Mirza Muhammad Anwar. If he is so advised, he might institute a suit for the removal of Mirza Iftikhar Ali on any grounds that might be open to him. In the present litiga tion, the respondent merely stated, that Mirza Zafar Ali was unconscious for a period of two months before he died and that no death‑bed appointment had in fact been made by him." It is true that the view of the High Court that an appoint ment of his successor by a Mutawalli on death‑bed can only have a temporary effect has been set aside, but this must be read in the light of the position clearly stated elsewhere that any one may by suit ask for the removal of Mirza Iftikhar Ali on the ground that he is not the arshad‑uz‑zakur of the family. In permitting such a course the Court did no more than give effect to the provisions in the deed of wakf relating to the appointment of a Mutawalli. We do not, therefore, see what grievance the applicant can have against the judgment of this Court on this part of the case. On the applicant's own view if he himself is not the arshad‑uz‑zakur of the family he could not have been appointed, whether the appointing authority be the Judge or the family or the wakif. And if Mirza Iftikhar Ali is not, in fact the arshad‑uz‑zakur, his removal can under the judgment of this Court be obtained on proof of that fact. The Subordinate Judge and the High Court had both held that the applicant had not been duly elected as a Mutawalli and with this finding he was satisfied because he himself did not appeal to this Court or put in any cross objections. All that can possibly hurt 'him therefore is the finding of this Court in disagreement with the High Court that no usage had been proved according to which the Mutawalli could be elected by the members of the family. This was a finding recorded after hearing full arguments and balancing the whole evidence, oral and documentary, and beyond alleging that the finding is wrong, no ground has been suggested on which that finding may be reviewed. For these reasons, we dismiss this application for review with costs. A.H. Application dismissed: