1992 PLP 1454 (SCMR)

M. Bilal Senior Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record (absent) for Appellant. Iqbal Ahmad Qureshi, Advocate‑on‑Record (absent) for Respondents. Date of hearing: 24th February, 1992. RUSTAM S. SIDHWA, J.‑‑‑This is an appeal by Munir Ahmad, appellant, against the judgment of a learned Single Judge of the Lahore High Court accepting the writ petition filed by Barkhurdar respondent, setting aside the order of the learned Additional Sessions Judge dated 13‑2‑1990 and ordering that the Wagon SGE 5430 be given on Superdari to Khizar Hayat son of Barkhurdar respondent, subject to the result of suit filed by Munir Ahmad appellant in the Civil Court.

2. Leave was granted to consider the question as to which of the two parties was legally entitled to the Superdari of the wagon in dispute. The interim order of this Court suspending the order of the High Court on the condition of the appellant depositing Rs.1,90,000 (one lac ninety thousand) with the trial Court within a week, which amount would not be paid to the respondent till the disposal of this appeal, was allowed to remain with the trial Court pending the disposal of this appeal.

3. The brief facts of the case are that on 7‑7‑1988 Barkhurdar respondent entered into an agreement with the Agricultural Development Bank of Pakistan (ADBP), Chiniot for the purchase of a van. The Bank sanctioned a loan of Rs.2,90,000 to Barkhurdar. According to the terms and conditions of the loan, the van was to remain in the name of ADBP. The registration book showed that the vehicle registered as No. SGE 5430 was non‑transferable and was shown in the name of ADBP, Chiniot, and that of Barkhurdar.

4. Without fulfilling the condition of the ADBP Barkhurdar, without the payment of the full consideration to the ADBP and in violation of the terms and conditions which he had entered into with the ADBP, sold the van on 11‑7‑1988 i.e. four days after he took the van (with the loan of the bank) to one Gulzar for Rs.3,62,000 (Rupees three lac sixty‑two thousand) and entered into an agreement dated 11‑7‑1988 with the said Gulzar Ahmad. Gulzar Ahmad paid Rs.1,30,000 (Rupees one lac thirty thousand) in cash to Barkhurdar and agreed to pay the remaining amount in instalments of Rs.3,500 (Rupees thrpe thousand five hundred) per month. Gulzar Ahmad in total paid Rs.1,92,000 (Rupess one lac ninety‑two thousand). Meanwhile Gulzar Ahmad sold the vehicle to one Khalid on 10‑9‑1988 for Rs.2,24,000 (Rupees two lac twenty‑four thousand) in cash and received the full consideration from said Khalid. Khalid .in turn sold the van to Munir Ahmad, appellant, against cash payment of Rs.2,30,000 (Rupees two lac thirty thousand) vide agreement dated 25‑6‑1989 and receipt of the same date on the basis of an open transfer letter duly signed by Barkhurdar. Khalid handed over to the appellant the above‑mentioned documents alongwith the registration book of the van. The appellant then applied to the registration authority Sargodha and got the van transferred in his name on 11‑7‑1989. Later, Barkhurdar respondent tried to secure the van from the appellant, who was constrained to institute a suit in the Civil Court, where the Court granted stay order in favour of the appellant. Khizar Hayat son of Barkhurdar then got an F.I.R. registered at Police Station Sargodha Cantt. on 7‑11‑1989 under sections 406, 420, 467, 468 and 471, P.P.C. against Gulzar and the appellant, alleging that the transfer of the van in the name of the appellant had been procured on the basis of false documents. During investigation, the Investigating Officer seized the vehicle from the possession of the appellant. The learned Magistrate granted Superdari to Khizar Hayat on 1‑1‑1990, which order was set aside by the learned Additional Sessions Judge on 13‑2‑1990, who granted Superdari to the appellant.

5. Barkhurdar, though not an applicant for Superdari, impugned the order of the learned Additional Sessions Judge in a writ petition where he succeeded, which order is now before us in appeal.

6. It cannot be denied that the van was seized from the possession of the appellant. It is yet to be seen whether the documents produced by the appellant I in the Civil Court are based on forgery or not and it is only the Civil Court which can determine the question of title. Prima facie appellant is entitled to the custody of van in dispute.

7. Nobody is here on behalf of the respondents to oppose this appeal.

8. For the foregoing reasons, this appeal is accepted, the judgment of the learned Single Judge dated 28‑11‑1990 is set aside and the order of the learned Additional Sessions Judge dated 13‑2‑1990 is restored. The amount of Rs.1,90,000 (Rupees one lac ninety thousand) deposited in this Court shall not be withdrawn till the claim of the ADBP Chiniot, against the said van is satisfied or a release is given by the said Bank with the permission 'of the trial Court. When an application is made for the withdrawal of the said amount, the case shall be put up before a learned Single Judge of this Court for necessary scrutiny. A copy of this order should be sent to ADBP, Chiniot. AA./M‑1628/5 Order accordingly.