F L D 1972 Karachi 341 (PLP)

This Civil Miscellaneous Application No. 519 of 1971 filed under section 148 read with section 151, C. P. C. by the applicants, seeks to extend the time for holding election to the office of the President of the Masjid‑e‑Faruqui, 4‑C, Landhi. The background of the case may shortly be stated that on 28‑4‑1970, respondent No. 1 Muhammad Ishaque acting as President of the Managing Committee of Masjid‑e‑Faruqui along with two other persons filed a suit for declaration and injunction against the present applicants in the Court of Civil Judge First Class, Karachi, with a prayer to be declared as legally elected office‑bearers of the Managing. Committee of the Mosque. An application under Order XXXIX, rules 1 and 2, C. P. C. was filed along with the suit with a prayer for temporary injunction against the applicants restraining them from disturbing the Managing Committee in administration of Masjid‑e‑Faruqui till the disposal of the suit. This application for temporary injunction was however, rejected by the trial Court after duly hearing the counsel for the parties and after perusal of the documents produced before him, vide his order dated 26th May 1970.

2. An appeal was filed against the above order in the Court: of 11 Additional District Judge, Karachi, who, however, came to a different conclusion and set aside the order of the trial Court and directed the applicants (defendants) not to interfere with the management of Masjid‑e‑Faruqui controlled by the respondents (plaintiffs) till the decision of the suit or till they are removed by holding fresh elections under the bye‑laws of the mosque which: ever is earlier.

3. Feeling aggrieved against this order, the applicants/ defendants moved a revision application under section 115, C. P. C. in this Court on 20th June 1970, which was admitted on 29‑6‑1970 for regular hearing and interim stay was, as well, granted which was confirmed by this Court vide its order dated 21‑9‑1970, due to the reason of the absence of all the three respondents. The matter came for regular hearing on 4‑2‑1971 and the following order was passed by my learned brother Mr. Justice Muhammad Ali Sayeed "Mr. Syed Ansar Hussain for the Petitioners. Mr. M. A. Naqvi for Respondents. By consent the orders of the two Courts below are set aside. A fresh election to the office of the President of Masjid‑e= Fartiqui, 4‑C, Landhi, will be held under the direction and supervision of the following two gentlemen : ‑

1. Mr. Akhtar Mahmood Khan, Advocate.

2. Mr. Mushtaq Ahmed Shaikh, Advocate, Rashid Bldg. ~~. M. 10, Frere Road, Karachi. The programme for holding the fresh election will be notified by the above two gentlemen to the counsel of the parties who will in turn take adequate measures for giving it due publicity. Election to be held within three weeks and result thereof to be filed in the Court in which the original suit in pending disposal. Petitioners' learned counsel undertakes to deposit Rs. 100 provisionally to meet the out of pocket expenses. Copy of this order may be delivered to the gentlemen appoint ed to conduct the election. This Revision application stands disposed of in the above terms"

5. As the election could not be held within three weeks time, as per above order, the present C. M. A. 519 of 1971 sup ported by an affidavit of Syed Ansar Hussain, Advocate of the A applicant was filed by the applicants for extension of time to hold the proposed election, on the grounds that in pursuance of the above consent order of this Court dated 4‑2‑1971, he got prepared the ballot papers and lists of entire voters of 4‑C and 36‑C, Landhi Colony, Karachi. And before the expiry of due date (i.e. on or about 25th February 1971) for holding election he gave all the papers to Mr. M. A. Naqvi, Advocate for the respondents, with a request that the voters list may be scrutinized and the result . be intimated to him so that he may request the Commissioners (by which he means Mr. Akhtar Mahmood Khan, Advocate and Mr. Mushtaq Ahmed Shaikh, Advocate, who were appointed by this Court to hold the election) for holding election. As no reply was forthcoming, he twice met Mr. Naqvi and appraised him with the situation, that the time for election may not elapse. It is alleged by the deponent that Mr. Naqvi assured him that if the time will expire, he will make a joint application for oxtcnsion of time, yet he could not get any reply from him up to 25th February 1971, and on that date he wrote a letter to the two Advocates referred above, informing them that he had got prepared the voters list and printed ballot papers and handed over them to Mr. Naqvi, Advocate of the other side. As no intimation has come from his side, a request was made to them to make programme for holding election as early as possible. A copy of this letter has been placed on record of this case. It is further alleged by the deponent that on 6‑3‑1971, he was called by Mr. Akhtar Mahmcod Khan, Advocate to discuss the matter with him in the High Court Bar Room, because he was busy, he instructed his client to meet him to find the programme for election. His client after meeting Mr. Akhtar Mahmood told him that the election has been decided to be held on Friday the 12th of March 1971, after Jumma Prayers. On this date, as lie was seriously ill, his client came to him and shoed him a notice from the Civil Judge Court No. 8, Karachi (presumably an order restraining the parties to hold election due to the expiry of the time given by this Court) copy of this order has not been filed by the applicant). It was further alleged that the respondents have superseded Mr. M. A. Naqvi and are bent upon for retarding election and it was prayed finally that unless the time for election extended and the Commissioners are directed to supervise the same, peace of the locality shall be at stake:

6. Before the notice of this application was served on the other side, the applications moved C. M. A. 596 of 1971 under section 3 of the Contempt of Courts Act, supported by an affidavit of one Muhammad Yousaf applicant No. 2 claim= Ing to be the Vice‑President of the Managing Committee of Masjid‑e‑Faruqui with a prayer to institute contempt proceedings against all the respondents as they have tried to interfere with the order of this Court on the ground, that on 12‑3‑1971, when they were holding election, a notice along with an application under Order XXXIX, rule 1, C. P. C. from 8th Civil Judge First Class. Karachi was served upon them to the effect, that since the time allowed by the Honourable High Court has passed, no election could be held. This notice, or order according to the applicants, "had violated the order of this Honourable Court as such they should be punished."

7. In view of the fairly complicated nature of the legal points involved as well as apparent non‑execution of the order of this Court referred above, I issued notice not only to the ,opposite side but to Mr. Kazi Akh;ar Ahmed, Advocate‑General Bind to attend the Court. On 13‑9‑1971, 1 have heard the learned counsel for the parties as well a: the views of the learned Advocate‑General according to whom the application for con tempt of the Court by the applicants was misconceived and the, applicants themselves were equaily responsible with the respon dents for non‑execution of the order of this Court, because he should have moved this Court prior to 25th February 1971, in case the other party was deliberately avoiding the execution of its order They however, moved an application on 16‑3‑1971 tot extension of time and the contempt application moved subse quently on 24‑3‑1971 which is an obvious afterthought. There is sufficient force in the contentions of the learned Advocate‑General. Besides, it appears to me that the applicants themselves are a party to the non‑execution of order of this Court within the time us shown by their letter dated 25th February 1971 requesting the two Advocates appointed by the Court to arrange for the election, now this date is the "date of expiry" and none of the parties could be notified and hold election on the last date. I also observe that the applicant himself according to his own affidavit agreed with the respondents to hold election on 12‑3‑1971 admit tedly by then the time for election had expired and no valid election could be held on that date, without an order of extension eitber by this Court or from the trial Court. May be, the appli cant was misled by the respondents so that as alleged, the time for election should elapse. If so, he must suffer the consequences of his own negligence and the other party cannot be penalized for the same.

8. However, when I pointed out the apparent difficulties to the counsel for the applicants, to prove that a deliberate cono tempt of the order of this Court has been committed by the other side, he realized the same, and requested at the Bar for permission to withdraw the contempt application. As so much time of this Court was wasted In hearing the application much the appli cants were not in a position to prove sufficiently, I allowed him to withdraw the application but burdened them with the costs of the other side as well as of the learned Advocate. General and dismissed the application by my order dated 13‑9‑1971.

9. Now I take up C. M. A. 519 of 1971 under section 148, C. P. C. read with section 151, C. P. C. for extension of time which is for disposal before me. The reasons given for extension of time by the applicants have already been discussed by me as stated in the affidavit by the applicant during the course of discussion with regard to contempt application. Objections for extension of time were filed by counsel for the respondents to this application dated 17‑5‑71 as under t "(1) That the consent given by the learned counsel for the respondents for holding elections was not within his au thority. The said consent given without the respondents agreement to it is not binding and the order based upon the same is liable to be recalled. (2) That the order does not even otherwise provide as to who would be the voters and the qualifications of the voters are also not prescribed. It is also not clear that who would be the candidates nor any qualifications are prescribed. (3) That the elections sought to be held would result in serious religious conflict. and it would be against public policy.

4. That the time for holding elections has already expired. This Honourable Court has no jurisdiction to extend the time." 10. 1 have heard Mr. S. Ansar Hussain, Advocate, for the applicants and Mr. K. A. Ghani, Advocate for the respondents. I must say that the above objections of the respondents apart from being belated have no force whatsoever. The consent order was admittedly passed on 4‑2‑1971 by this Court and if the respon dents have any objection to this order, on the ground that their counsel has no authority to give consent for holding election, they should not have slept over it for about three months ; and should have moved this Court at the earliest opportunity. But nothing has been done ; even otherwise under the terms con tained in the vakatatnama, an Advocate has the general authori ty to give consent or compromise or withdraw a case on behalf of his client. Therefore, this objection appears to be frivolous. The second objection that the order does not provide who would be the voters, what would be their qualifications or who would bb the candidates, is equally without any force, because at the time of passing of the consent order it must have been within the knowledge of the parties or their counsel as to who would be the voters and the procedure to be adopted and, in fact list of voters as referred earlier has been prepared by the applicants from the people who normally take interest in the administration of the mosque and attend the prayers and I find from Exh. "D" at page 5, a list containing the names of 142 persons of the locality shown as Nim‑azi the persons who are said to be interested in the election. Besides, the respondents could take this objection and seek clarification if it was imperative, from this Court earlier. They cannot be allowed to raise this objection after a lapse of three months particularly so when they are a consenting party to the consent order, and it must be presumed therefore, that they knew very well as to who should be the voters, candidates and their qualifications. The election of a Managing Committee of a mosque is nothing novel in the town of Karachi or in this sub continent, so that an elaborate procedure has to be laid down by this Court. The Managing Committee of Masjid‑i‑Faruqui has been duly registered under Societies Registration Act, 1860 and a copy of the Registration Exh. F is on record, therefore, there should not be any difficulty for holding election in view of Manag ing Committee of the Mosque being registered and having its own bye‑laws. The normal practice and the procedure of election was intended by the order of 24‑71 which is of day to day occurrence in this town was to be followed under the supervision of the two Advocates of this Court. 1 may however, observe here that it was not for the respondents to raise the objections and seek clarifications if any, on the contrary it was the duty of the two Advocates named above to approach this Court to seek any clarification In case there was any doubt with regard to procedure, list of voters and the candidates. But I find no such request made by any of the two Advocates in this regard, it therefore, must be presumed that at the time of passing of the consent order, the two Advocates appointed by this Court as well as the Advocates for the parties were very clear to their minds as :q how to hold the election of the mosque. This objection therefore !s nothing but an afterthought by the respondents.

11. The main objection however, on behalf of the ream pondents in this case worth considering was "that the time for holding election had already expired and this Court had no jurisdiction to extend the time" and the main argument addres sed by the counsel for the respondents was on this point. It appears to me that in the circumstances of this case as I shall presently show, this objection equally has no force, and must be replied. Counsel for the respondent relied on Sheikh Ayezuddin v. Priya Sanker Choudhury (1) a Single Bench decision, Mooriantakath Ammoo v. Matathankandy Vatakkayll Pokkan (2) a Single Bench decision, Feroze Din v. Shaikh Ahmad (3) a Single Bench decision, Faizullah Khan v. Pir Mukamal Shah (4) and some other cases of the Indian jurisdiction which I do not find relevant to refer, to show that this Court bas no power to extend the time under section 148, C. P. C. which has already expired C. P. C. read with section 151, C. P. C., and also that the said consent order cannot be executed at this stage. A perusal of these cases goes to show that ratio decidendi in all these cases cited above, does not help the respon. dents' contention. Before I refer to the cases let me reproduce section 148, C. P. C. which is as under :‑ '‑f

148. Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period even though the period originally fixed or granted may have expired.'. A bare reading of this section goes to show that the underlyin principle as regards to the applicability of section 148, C. P. C. to a 'case depends on the question whether the matter h been finally disposed of by the Court or the Court is still seized of ‑ the matter and has control over it. If the orde is not final, obviously the Court is seized of the matter. that case it has power to make any just or necessary order, In proper cases, to extend time under the above section. On the other hand it is to be seen that if the effect of the order is that the Court has finally disposed of the matter, and there la nothing ‑for it to ‑intervene further, only in that case the Court ceases to have any control over the matter and becomes funetus officio, therefore only in that case it cannot gran extension of the period which has already passed. I howev find that the situation is reverse in the case before me, the consent order passed by this Court has not in my opinion, finally disposed of the matter because something still bad to be done to hold the election of the Managing Committee of the mosque. The order could only be termed as final, had the election been held and the result of the same had been filed before the trial Court, as has been ordered, only then, perhaps, It could be validly argued that this Court has lost (1) P L D 1965 Dacca 280 (2) A I R 1940 Mad. 817 (3) P L D 1970 Penh. 54 (4) P L D 1961 S C 34 control over the matter as regards to section 148, C. P. C. and not the residuary powers of section 151, C. P. C. which this Court still can exercise in the proper cases in the interest of justice. Be that as it may, admittedly election has not been held, the order of this Court dated 4‑2‑1971 has yet to be carried out. It cannot therefore, legidcrately be presumed that this Court has no power to extend the time to see that its orders are duly executed.

12. Now I will take up the cases relied upon by the counsel for the respondents. The Dacca case P L D 1956 Dacca 280, relates to the delayed payment of some decretal amount where a Misc. application was made by the petitioner for extension of time to deposit the decretal amount and can 31st July 1951, an order was passed by the Court on that application that the case shall stand dismissed if the amount was not paid by 11th August 1951. However, date was extended till 29th August 1951, by the Court. Even, then, the amount was not paid, the suit was dismissed, and it was observed by the learned Single Judge in revision that‑ "In the circumstances, there is no room for doubt that the proceeding terminated on that date and in the words of Rekewitch, J. the action was dead. Thereafter, the Munslf being functus ofctm had no jurisdiction to extend the time. The principle laid down in the above case does not apply to the present case before me, because in my opinion, the action in this case is not dead, the election has yet to be held and this is the first application for extension of time and the order of this Court dated 4‑2‑1971 cannot be said to be a final decree as held in the Dacca case. The Madras case A I R 1940 Mad. 817, also concerns with the delayed deposit of the decretal amount where instead of making deposit within nine months in terms of the compromise decree, the plaintiff did nothing for about three years without any explanation for the delay or any application to extend the time and he sought to execute the decree just as if it was an ordinary decree in on eviction suit passed after a full trial. Mr. Justice Wadsworth refused to extend time on the ground that it was made not only after the expiry of the period fixed by the decree of nine months but within three years and no application for extension was made nor any explanation was given for non. deposit of the amount; therefore, the above case in my opinion Is of no help to the present respondents. The Peshawar case P L D 1970 Pesh. 54 also does not help the respondents because that was also a case with regard to deposit of the decretal amount in a pre‑emption suit where the plaintiff failed to deposit the requisite amount by the fixed date and the Court refused to extend the time on the ground that provision of sections 148 and 151, C. P. C. could not be Invoked to seek extension of time for deposit of pre‑emption money. It is obvious that the case before me does not relate to a decree or deposit of pre‑emption money. P L D 1961 S C 34, was an appeal before their Lordships of the Supreme Court concerning essentially the question of professional misconduct by the Advocate reported by another Advocate to the High Court with regard to certain litigation wherein certain consent decree was obtained by one of the parties before the trial Court in certain rent suits. This consent decree was objected to by the other side along with other litigants, as amounted to professional misconduct. Their Lordships of the Supreme Court while dealing with the matter were pleased to hold that :‑ "There is nothing of turpitude or sharp practice in a person obtaining for the protection of his rights, a consent decree against persons who are prepared to concede his rights in his favour by reason of harmonious relations." It appears to me that instead of being of any help the principle in the above case goes against the respondents, because In the case before me, it was the applicant who wanted election to be held and the consent order for holding election and setting aside the judgment of the lower Courts amounted in a way to acceptance of his revision application; therefore, this case even does not advance the contention of the respondents any further.

13. On the other hand counsel for the applicants relied on a Division Bench decision Parsettans Dass v. Shiam Lai (1), the Bench consisted of Walsh and Ryves, Judges and the judgment was delivered by Walsh, J. The facts of this case were that there was a dispute between the parties who were relatives, they went to Arbitration and the Arbitrator passed an award leaving certain matters outstanding with regard to division of certain property for which a machinery had to be created. The parties in that case got the award filed in the form of a decree in the Court and the parties by their pleaders also agreed that certain relative, who happened to be a Vakil of High Court should make division or partition of the outstanding matters ire accordance with the award and it was to be made without any delay. The initial order was passed on the 13th of January 1921, and Mr. Dang who was appointed by the Court as per award or decree to divide or partition the property, was unable to carry out the task which he had accepted on behalf of the parties. Parsotam Dass defendant/appellant taking the advantage of the liability of Mr. Dang to carry out the task entrusted by the Court, filed an appeal for the purpose to render the whole compromise a nullity. against an order of the Judge passed in favour of the plaintiff/respondent Shiam Lai for enforcement of the compromise or rather that part of it which was still unperformed. In that case an objection was raised by the appellant that the appointment of Mr. Dang was merely a personal matter which failed by his refusal to act, and that not only a substitute could not be appointed, but the order itself could not be executed and even the Court could not carry out its own order, and it was also objected that there was no decree in the case which could be executed and the appointment of Mr. Dang was no (1) A I R 192 3 All. 460 part of any executable decree and therefore, beyond the reach of the Court. These objections did not weigh with the learned Judges of Allababad High Court and Walsh, J. while delivering the judgment observed "It seems to me that such a view, if sound, would turn the law as an engine for the administration of justice for the settlement of disputes, into an absurdity. I do not think it can be contended for a moment that there is riot abundant provision to be found in the Code apart from section 151 applicable to this order. But even, if there were none, it would not create any difficulty to my mind, because every Court obviously has the power to enforce its own orders, and to vary a matter of detail en an order made by the consent of parties, when by the accident of circumstances the carrying out of such detail according to agreement can no longer be achieved. in my view it is sufficient for this purpose to refer to section 151 of the Code of Civil Procedure. I cannot imagine a state of circumstances to which that section can apply, if this is not one." The learned Judge went on to observe further "It recognises the natural power of the Court to do all things necessary to determine matters in controversy and to prevent the ends of justice being defeated. It would be A lamentable thing indeed if, in a matter of this kind the gentleman, either from sudden illness or other inability to fulfil his task, had to retire, a compromise accepted in substance by everybody as being the best method of settling the dispute, should be wrecked at the will of one obstinate party." The appeal was dismissed and it was ordered that the Commissioner now to be appointed by the Court on the applica tion of respondent, or the Court itself, if no such person .can be found. In my opinion the principle laid down in this case, fully supports the contention of the applicant and I therefore, hold that this Court has power to extend the time under section 148 read with section 151, C. P. C. to hold the election of the managing Committee of Masjid‑e‑Faruqui.

14. I am constrained however, to observe that Mr. Akhtar Mahmood, Advocate and Mr. Mushtaque Ahmed Shaikh, Advocate, who were appointed by this Court with their consent because no application for request has been moved by either of them to show their inability or otherwise or withdraw to act as appointees of the Court to supervise and hold the disputed election, who were further directed by the said order to file the results of election in the trial Court has neither reported their failure to hold election, in the trial Court nor in this Court so far, and the record before me does not show any such report by either of them. Apart from this as Advocat are officers of this Court, they are a part of the judicia machinery and it is the prime duty of every Advocate to se that orders of this Court are in no way allowed to be flouted o remain unexecuted. Particularly so when the two gentlem were epwilircally appointed to hold the election by this COuW! order dated 4‑21971. In my opinion the main burden to see that this Court's orders were executed, fell upon them and it was their duty to intimate this Court within the time prescribed, if there was any difficulty or hitch created by any of the parties to get the election held, but nothing it appears has been done by either of them.

15. For the reasons given above I accept this C. M. A. No. 519 of 1971 with cost and extend the time and direct that Mr. Akhtar Mahmood and Mr. Shaikh Mohd. Mushtaq, Advocates, to hold the election of the Managing Committee of Masjid‑e‑Faruqui within one month f om the date of announce ment of this order according to the directions contained in the order of this Court dated 4‑2‑1971. Application accepted.