2003 PLP 1823 (CLC)

(1) Messrs Pacific Multinational v. I.G. Police Sindh PLD 1992 Karachi 283, (2) K.N. Guruswamy v. The State of Mysore AIR 1954 SC 592, (3) Ramana Dayaram Shetty v. The International Airport AIR 1979 SC 1628, (4) Messrs Kasturi Lal Lakshmi Reddy v. The State AIR 1980 SC 1992: (5) Shaukat Ali v. Secretary Industries and Mineral 1995 MLD

123. Shri Anadi Mukta Sadguru Shree Muktajee Vandasjuswami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others AIR 1989 SC 1607, (7) Collector Customs v. Flying Kraft Paper Mills PLD 1999 SC 795, (8) Calicon (Pvt.) Limited v. Federal Government 1994 SCMR 1758, (9) Calicon (Pvt.) Limited v. Federal Government 1996 MLD 705, (10) Messrs Abdullah & Co. v. The Province of Sindh 1992 MLD 293, (11) Messrs Zasha Limited v. A.D.B.P. Islamabad PLD 1993 Lahore 914, (12) Messrs Haiderabad Commercials v. Indian Bank and others AIR 1991 SC 247, (13) Messrs Presson Manufacturing Ltd. v. Secretary Ministry of Petroleum and Natural Resources 1995 MLD 15 and (14) Gatron Industries, Ltd. v. Govt. of Pakistan 1999 SCMR 1072. Unreported judgment, dated 20-12-1995 in Writ Petition No. 15135 of 1995.

3. The learned Deputy Attorney-General raised following preliminary objections:

(i) Disputed questions of fact cannot be decided in Constitutional jurisdiction. (ii) During the pendency of the writ petition the petitioners sold the Company in question to Nishat Sons (Pvt.) Limited after securing no objection certificate from the respondents which was granted by the respondents after receiving balance amount which was paid- by the petitioner without reserving its legal rights. On merits he submits that according to report of the Auditor of the respective buyer the net worth of company was worked out at Rs.46.636 Million on the cut off date. Difference between the buyers auditors and Ghee Corporation of Pakistan auditors worked out at Rs.2,438 Million which fall short of (minus/plus) of 5% which according to clause 9 of the agreement was not liable to adjustment which formally was agreed between the parties as is evident from the terms of the agreement. He further submits that according to clause-9 of the agreement the cut off date is date of taken over the project by the petitioners. In the present case agreement was executed between the petitioners and respondent No.2 on 30-3-1992 and the project in question was taken over by petitioner No.2 on 23-4-1992. Therefore, petitioners cannot take the benefit of clause with regard to the variance in the value of assets other than fixed assets and liabilities as on 31-3-1991. He further submits that shares of the aforesaid units were sold much before execution of the agreement between petitioner No.2 and respondent No.2. He further submits that petitioner did not make any claim qua the aforesaid claims at the time of execution of the agreement. It was in the knowledge of petitioner No.2 at the time of bidding that respondent had already sold the shares in the Kakakhel Industries and Fazal Ghee Corporation. He further urges that claim for compensation with regard to drawback duty for the period 1990-1991 was also not sustainable in the eyes of law. This claim was also before the cut off date as the agreement was executed between the parties on 30-3-1992 and the joint audit report was dated 30-9-1993:

4. Learned counsel of respondent No.2 adopted the arguments of learned Deputy Attorney-General and in supplement to his arguments he submits that petitioners are estopped to file this Constitutional petition in view of their own conduct. Agreement was executed between the parties on 30-3-1992 whereas the petitioner filed this writ petition on 15-1-1996 which should be dismissed on the well known principle of laches. In support of his contention he relied upon Settlement Authority v. Mst. Akhtar,Sultana PLD 1976 SC

410. He further submits that balance was reconciled on the request of the petitioners by the respondents on 22-6-1999. The petitioners submitted an application before the respondents to secure no objection certificate for the purpose to sell the unit in question to Nishat Sons on 12-7-1999. The petitioner also discharged all the liabilities of respondent No.2 and thereafter respondent No.2 had issued N.O.C. to the petitioners on 15-7-1999. Additional payment was made by the petitioners on 20-7-1999. Therefore, there is no live issue existed between the parties and the petitioner has become infructuous as is evident from the prayer clause. The shares were sold by the aforesaid units in view of 'the resolution passed by the general body on 25-7-1991 and 15-10-1991. The shares were sold much prior to the floating of the unit in question for auction. The shares were sold in open market on 11-10-1991. The agreement was executed between the parties on 30-3-1992. The control of the unit in question was handed over to petitioner No.2 on 23-4-1992.

5. Learned counsel of the petitioners in rebuttal submits that facts are admitted in the written statement filed by the respondents. Therefore, preliminary objection raised by the learned Deputy Attorney-General has no force. He further submits that long term investments are not part of current assets in view of section 235 of the Companies Ordinance. 1984.. He further urges that this Court has ample jurisdiction to grant relief which was not claimed by the petitioners. In support of his contention he relied upon Collector of Customs v. Messrs Flying Kraft Paper Mills PLJ 1995 SC

795. He further submits that during the pendency of the writ petition the competent authority has issued Privatization Commission Ordinance, 2000 (Ordinance No.LII of 2000). According to section 28 the petitioners have to file petition before this Court and all legal proceedings whatsoever and matter related to or under or in connection with or arising from privatization shall transfer to the High Court in view of section 31 of the aforesaid Ordinance. He further submits that proceedings can be converted at any stage and the question of law can be raised at any stage. He summed up his arguments that public functionaries are duty bound to act within the four-corners of law and have no lawful authority to act over and above the law. He further submits that petitioners had paid the balance amount to respondent No.2 as claimed by respondent No.2 in terms of the agreement in spite of the restraining order passed by this Court in favour of the petitioners on 16-1-1996.

6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

7. I would like to decide whether writ petition can be converted into petition under section 28 of Privatization Commission Ordinance, 2000 or not. The aforesaid proposition of law was considered by the Division Bench of Karachi High Court in Mst. Akhtar Naseem's case PLD 1982 Kar. 130 and observed as under:-- "4(a) From the above-cited cases, it is evident that the Court with the view to foster justice may take appropriate action or to adopt a procedure which is not provided for if it is not expressly prohibited by any provision of law. Since there is no express prohibition against the conversion of the a writ petition into appeal, the Court has inherent power to adopt above procedure in a fit case in the interest of justice." The aforesaid proposition was also considered by the Division Bench of Karachi High Court in Saleh's case PLD 1982 Kar. 542 and observed that this Court can convert writ petition into an appeal. The above proposition of law was also considered in Mst. Samina Sohail's case 1989 CLC 1949 and observed as under:-- "We are no longer in those times when technicalities were everything and substance could be ignored or bypassed. Courts are required to do substantial justice and one form of proceedings, in the interest of justice, may be treated as another. Thus revisions, appeals, and Constitutional petitions have been treated one or the other interchangeably, to meet the ends of justice. I can think of no reason as to why this cannot be done here." The Honourable Supreme Court has laid down principle in Khuda Yar's case PLD 1975 SC 678 that technicalities should not defeat the ends of justice. The Honourable Supreme Court has also laid down a principle that after addition of Article 2-A in the Constitution, the cases must be decided on merits instead of technicalities in Sher Muhammad's case PLD 1989 SC

532. Subsequently, the aforesaid judgment was also considered in Mst. Sardaran's case 1993 SCMR 363 and followed the same proposition. I am also fortified by the following judgments:-- Alam Din's case and Messrs Gee Constructions Comp. Ltd.' case 1999 MLD 2146 and 1999 MLD 2202. In view of the aforesaid discussion, the request of petitioner's 'counsel is allowed and this Constitutional petition is converted into petition under section 28 of the Privatization Commission Ordinance, 2000.

8. Without adverting to the contentions of the learned counsel of the parties, I intend to decide the petition on the basis of the subsequent events. It is admitted fact that petitioners sold the project in question to Nishat Sons Private Limited. The petitioners also filed Civil Miscellaneous No. 1 of 1999 for impleadment of Nishat Sons Private Limited as petitioner in place of the petitioners. The contents of this application also reveal that the shares were transferred after obtaining permission from the respondents and NOC was also issued by the respondents in this regard. Meaning thereby the facts narrated by the learned counsel of the respondents qua the subsequent events were not controverted by the petitioner's counsel as the petitioner's counsel did not bring on record any document qua the subsequent events that petitioners secured NOC without prejudice to their legal rights. The respondents placed on record various documents including letter, dated 15-7-1999. Relevant para is reproduced hereunder:- "The Privatization Commission has no objection to the proposed sale of shares of Sheikh Fazlur Rehman and Sons Limited to Sheikh Nishat Ahmed, provided that Muslim Commercial Bank Limited first pays the Privatization Commission the outstanding balance sale price in an amount of Rs.36.633,086 (Rupees thirty six million six hundred thirty three thousand and eighty six only) in accordance with bank guarantee numbered 47/05 VPM47/28, dated April 13, 1995 issued by Muslim Commercial Bank Limited in favour of the Privatization Commission."

9. It is better and appropriate to highlight the case-law on the subject regarding subsequent events keeping in view the aforesaid circumstances to resolve the controversy between the parties. The Honourable Supreme Court has considered the proposition of law in the case of Mst. Ameena Begum v. Mehr Ghulam Dastgir PLD 1978 SC 220 and after considering all the case-law on the subject, upheld the observations made by the Madras High Court in Lakshmi Ammal and others v. Narayanaswami Naicker and others AIR 1950 Madras 321 to the following effect:-- "The ordinarily rule is that a Court should give its decision on the facts and circumstances as they existed at the date of institution of the suit or at the date of any subsequent amendment of pleadings and should not take notice of events or decision which have happened after such date. " In this very decision, the Honourable Supreme Court also produced the following passage from commentary under Rule 7 of Order '7 of C.P.C. by Mulla (12th Edition):-- "Ordinary decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But where it is shown that original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to have the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice at subsequent events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time of the decree is made."

10. The Honourable Supreme Court finally held in the aforesaid judgment in Mst. Ameena Begum v. Mehr Ghulam Dastgir PLD 1978 SC 220 which is as under:-- "Indeed in our considered opinion a discretion is vested in this behalf in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice. "

11. It is settled principle of law that the Court is entitled to take notice of the subsequent events for the purpose of doing full and complete justice to the parties and for giving the effective relief to the petitioner/appellant. In appropriate cases, it is not only the power but duty of the Court to consider the changed circumstances, where it is shown that the original relief claimed by the petitioner/appellant, has, by reason of subsequent change in the circumstances, become useless or inappropriate or where it is necessary to take notice of changed circumstances to shorten the litigation or a new relief may serve the purpose better or that a relief is required to be re-shaped or moulded in the light of change in facts or in law to do the complete justice between the parties, the Court is bound to depart from the general rule and mould the relief in the light of altered circumstances.

12. Similarly, if during the pendency of petition/appeal for getting admission, the petitioner/appellant himself has obtained the admission elsewhere, the Court taking into account that subsequent event, may not grant relief in his favour. In arriving to this conclusion I am fortified by Ashish Sharma's case 1986 Supreme Court Cases

1. The Indian Supreme Court has also considered the aforesaid proposition of law in Pasu Palti's case (1975) Supreme Court Cases

770. The relevant observation is as under:-- "It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inapt the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice

subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the judgment pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed."

13. I am also fortified by law laid down by the Honourable Supreme Court in Dr. Habib Ullah's case PLD 1973 SC

144. The ratio of said case is as follows:-- "Where the petitioner aggrieved by Selection by the Public Service Commission, participated in another selection subsequently, the petitioner cannot challenge previous selection as the previous matter is deemed to be past and closed."

14. I am also fortified by the law laid down by the Calcutta High Court in Smt. Swamalata Biswas v. State of West Bengal and others AIR 1952 Cal. 687 and the ratio is as follows:-- "The High Court is entitled to take notice on subsequent events for the purpose of giving complete and effective relief to the petitioner in Constitutional jurisdiction." The Indian Supreme Court has also considered this proposition of law in Kanaya Ram v. Rajendra Kumar AIR 1985 SC 371 and laid down the following principle:-- "Court must take into account subsequent event and mould relief accordingly." The aforesaid proposition of law is also supported by the following reported judgments:-- Muhammad Rashid's case 2001 MLD 548, WAPDA's case 2001 PLC 304; Muhammad Nazir's case 2001 CLC

767. In view of what has been discussed above, this Petition has no merit in view of subsequent events or the well known principle of approbate and reprobate, estoppel, waiver as per principle laid down by the Honcurable Supreme Court in Ghulam Rasool's case PLD 1971 SC 376 and the same is dismissed. M.B.A./F-178/L Petition dismissed.