1992 PLP 1372 (MLD)

S.T.D. A/C No. 174 of 12‑9‑1988 10,000.00 Total: Rs.9.15.633.20 Roop Lal Mehta died on 22nd of January, 1986 and there is no dispute that the petitioners being his legal heirs succeeded to his assets including the amounts lying in the accounts aforesaid. It is also not disputed that on an application filed by the petitioners, the Court of Mr. Muhammad Ghulam Sarwar Qadr4 Civil Judge, Lahore, granted succession certificate to the petitioners on 22nd of December, 1988 authorising them as heirs of Roop Lal Mehta to collect and receive the amount from Banks. 2. It appears that on the strength of succession certificate the petitioners through their attorney approached the Banks in question for the payment of amounts. Their attorney was, however, informed by the United Bank Limited vide its letter, dated .7th March, 1989 that it has been directed by the State Bank of Pakistan that as the petitioners are Indian Nationals, the amount in question may be transferred to a non‑resident blocked account which should be opened in the names of the petitioners and the operation in the said account can only be made with the prior permission of the State Bank of Pakistan. Similar reply was sent by the Habib Bank Limited. The petitioner has challenged this direction issued by the respondents in this Constitutional petition. 3. Mr. Riaz Anwar, the learned counsel for the petitioners has contended that as Roop Lal Mehta was a citizen of Pakistan, residing at Lahore, the amounts lying with the Banks on his death became the property of the petitioners and could be withdrawn by them as legal heirs of Roop Lal Mehta and respondents have no lawful authority to place any restriction over the withdrawals. 4. It was next argued that as the amounts in question are in Pakistan rupee, the provision of Foreign Exchange Regulation Act, 1947, under which the respondents have purportedly acted could not be made applicable. In the last, it was contended that all restrictions on all the accounts including Foreign Exchange accounts have been removed by the Government of Pakistan and as such the respondents cannot restrict the right of the petitioners to withdraw the amounts. 5. Kh. Saeed‑uz‑Zafar, learned counsel for the respondent on the other hand contended that as the petitioners are non resident foreign nationals of India, the money belonging to them has to be kept in a blocked account which can only be operated with the permission of the State Bank of Pakistan. 6. From the respective contentions of the parties, it is evident that there is no factual dispute between them. The question, which, however, falls for decision is as to whether it is open to the respondents to restrict the right of the petitioners to withdraw the amounts in question from the Bank. 7. The provisions relevant for the determination of this controversy are contained in sections 5 and 6 of the Foreign Exchange Regulation Act VII of 1947, which reads as under:‑ "Section 5. Restrictions once ents: ‑‑(1) Save as may be provided in and in accordance with any general or special exemption from the provisions of this subsection which may be granted conditionally or unconditionally by (the State Bank) no person in or resident in Pakistan shall ‑‑ (a) make any payment to or for the credit of any person resident outside Pakistan. (b) draw, issue or negotiate any bill of exchange or promissory note or acknowledge any debt, so that a right whether actual or contingent to receive a payment is created or transferred in favour of any person resident outside Pakistan; (c) make any payment to or for the credit of any person by order or on behalf of any person resident outside Pakistan; (d) place any sum to the credit of any person resident outside Pakistan; (e) make any payment to or for the credit of any person as consideration for or in association with‑‑ (i) the receipt by any person of a payment or the acquisition by any person of property outside Pakistan; (ii) the creation or transfer in favour of any person of a right whether actual or contingent to receive a payment or acquire property outside Pakistan; (f) draw, issue or negotiate any bill of exchange or promissory note, transfer any security or acknowledge any debt, so that a right (whether actual or contingent) to receive a payment is created or transferred in favour of any person as consideration for or in association with any matter referred to in clause (e). (2) Nothing in subsection (1) shall render unlawful‑‑ (a) the making of any payment already authorised either with foreign exchange obtained from an authorised dealer under section 4 or. With to that litigation. I am `fortified in holding this view by AIR 1955 SC 481, relevant part reads as: "Where the Privy Council had construed a certain document, namely a will of a person not a party to that litigation, yet the decision operates as judicial precedent." As the entitlement of the respondent and his right to the grant of the disputed land, besides having been decided in the regular suit filed by the appellant himself, has been adjudicated and settled by the High Court in a suit filed by Qari Muhammad Yasin and others, it definitely operates as judicial precedent and the appellant is precluded from challenging the same, as the right of the party has been settled on the construction of the documents challenged afresh before the trial Court. The Courts while deciding the cases, besides laying down the judicial precedents, settle disputes of the parties, and disputes, which relate to a piece of land, definitely affect the persons of the locality. Thc, confidence of the public in the Courts will shatter, if settled matters are repeatedly reopened just on one pretext or the other. It is the duty of every , Court to throw out a matter, when it is brought to its notice that the matter has once been settled. The parties cannot be allowed to reopen the settled matters on the flimsy legal or procedural techniques. The substance of the matter is of essence in a judicial administration not the technique, unless it goes to the root of the matter. Dispensation of justice is a sacred duty, which has to be performed in accordance with the provisions of law, with a humane attitude. It is not a computerized function, but has to be performed keeping in view the human relations, affinity, mental attitude, conduct of the parties and nature of the case etc. It may be a business for the lawyers, petition‑writers, police and others who are benefited by the origin and continuance of disputes, but it is a sort of war between the parties. Courts have to keep in mind the horrifying effects of such a strife to put an end to it, moreso, when litigation is futile and flimsy. A prolonged false litigation first affects locally and when followed by one after other cases on the same subject between parties, it shakes the confidence in the legal institutions and the system as a whole which ultimately affects the nation. It is the duty of the Courts to uphold the confidence of the general public in the national institutions, the least one can do, is to stop the litigation like one in hand. 7. It is borne out from the record that the appellant and the other party (Qari Muhammad Yasin and others) have changed the sides and have come under new pleas and pretexts before the Court to deprive the respondent of the fruit of his legal grant by harassing him through different processes of Courts. I think this is the fittest case, in which the Court should, in view of the, circumstances‑ stated above, invoke its inherent powers under section 151, C.P.C., read with section 35 of the Courts and Laws Code Act, 1949, which respectively read as follows: "151 ‑ Saying of inherent powers of Court: Nothing in this Code shall foreign exchange retained by a person in pursuance of an authorisation granted by the State Bank; (b) the making of any payment with foreign exchange received by way of salary of payment for services not arising from business in, or anything done while in Pakistan. (3) Nothing in this section shall restrict the doing by any person of anything within the scope of any authorisation or exemption granted under this Act. (4) For the purposes of this section `security' also includes coupons or warrants representing dividends or interest any life or endowment insurance policies." Section 6 may also be reproduced:‑‑ "Section 6. Blocked accounts: ‑‑(1) Where an exemption from the provisions of section 5 is granted by the State Bank in respect of payment of any sum to any person resident outside Pakistan and exemption is made subject to the condition that the payment is made to a blocked account‑‑‑ (a) the payment shall be made to a blocked account in the name of that person in such manner as the State Bank may by general. or special order direct; and ‑ (b) the crediting of that sum to that account shall, to the extent of the sum credited, be a good discharge to the person making the payment. (2) No sum standing at the credit of a blocked account shall be drawn on except in accordance with any general or special permission which may be granted conditionally or otherwise by the State Bank. (3) In this section `blocked account' means an account opened as a blocked account at any office or branch in Pakistan of a Bank authorised in this behalf by the State Bank, or an account blocked, whether before or after the commencement of this Act, by order of the State Bank." It will be seen that section 5 places restriction upon any‑payment to or for the credit of any person residing outside Pakistan except with the permission of the State Bank of Pakistan. According to section 6 where an exemption is granted by the State Bank from the provisions of section 5 to any person, it can direct that the payment be made to a blocked account in such a manner as the State Bank may determine. Subsection (2) of section 6 ordains that no sum standing at the credit of blocked account shall be drawn except with general or special permission which may be granted by the State Bank. 8. The position has, however, undergone a change by virtue of the exchange reforms introduced by the Government of Pakistan inter alia in the sphere of exchange control and the promulgation of the Economic Reforms Ordinance, 1991. Under the directions of the Government, the State Bank of Pakistan has issued Foreign Exchange Circular No.129 of 31st August, 1991, whereby restrictions on operation on accounts of non‑residents have been completely removed. As already noticed, the probation to operate the account 't~ under section 6(2) of the Foreign Exchange Regulation Act, is subject to any general or special permission which may be granted by the State Bank of Pakistan. Consequently, in view of Circular No.129 of 31st August, 1991, it is no longer possible to restrict the right of the non‑residents to operate their accounts. 9. Kh. Saeed‑uz‑Zafar, learned counsel for the respondent, however, argued that the aforesaid Circular deals with non‑resident accounts and not blocked account. This contention of the learned counsel is not well‑founded. There is no distinction between the blocked account or non‑resident rupee account. Both these accounts are held by non‑residents and are in Pakistani rupee. There is no separate provision in the Foreign Exchange Regulation Act, 1947 with regard to non‑resident rupee account except for section 6. There is, therefore, no reason to hold that the Circular in question is not applicable to blocked account. If an account is held by a non‑resident and is in Pakistani rupee, the Circular would apply irrespective as to whether the name 'given to such account is a non‑resident aunt or blocked account as the essential characteristics of both the accounts are the same. It follows from the above that respondents are no longer justified in restricting the right of the petitioners or their attorney to withdraw the amounts lying in the Pakistani Banks. As a result, this petition is allowed and the impugned directions of the respondent to the effect that the accounts in question cannot be operated by the petitioners or their attorney, are declared to be without lawful authority and of no legal effect. There shall be no orders as to costs. AA./S‑73/L Petition accepted.