P L D 1965 (W (PLP)

MUHAMMAD AKRAM, J.‑Hafizud Din, the petitioner, was married to Mst. Hamida, respondent No. 2, on 3rd of December 1962. Afterwards differences arose between them. These led to a suit by the petitioner for restitution of conjugal rights and a counter suit by the wife for dissolution of her marriage.

2. On 28th of June 1963, respondent No. 2 filed an application against the petitioner under section 9 of the Family Laws Ordinance (VIII of 1961) (hereinafter referred as the Ordinance) for maintenance at the rate of Rs. 200 per mensem, before the Chairman, Union Council Ward No. 25, Lytton Road, Lahore. In the course of those proceedings on an application of the petitioner before Mr. Khadim Husain, Additional Deputy Commissioner, Lahore acting in his capacity as the Collector, Lahore, the proceedings were removed from Sh. Zafar Husain, the Chairman of the Union Committee and were entrusted to Mr. Khakan Babar to, act as the Chairman of the Union Committee. There was another application to him by the petitioner for removal of his arbitrator. Ultimately on 5th of January 1964, the Chairman and the two members of the Arbitration Council gave a unanimous decision awarding Rs. 200 per month as the maintenance to respondent No.

2. Dissatisfied with this decision, the petitioner filed a revision under section 9(2) of the Ordinance, which was heard and disposed of by Mian Khadim Husain, Additional Deputy Commissioner, Lahore, purporting to exercise the powers of Collector under the Ordinance, and on the 9th of April 1964, he reduced the amount of maintenance allowed by the Arbitration Council to Rs. 100 per mensem.

3. In this writ petition under Article 98 (2) of the Constitu tion of Islamic Republic of Pakistan, 1962 the petitioner has called in question the order dated the 9th of April 1964 passed by respondent No. 1 on the ground that he was not competent to entertain and dispose of the revision under section 9 (2) of the Ordinance. The precise objection is that Mian Khadim Hussain, respondent No. 1, was the Additional Deputy Commissioner, Lahore, and had no powers of the Collector under the Ordinance to hear the revision.

4. On the 8th of May 1964, this Court bad called a report from respondent No. I on this objection raised by the petitioner. The report received from him shows that by virtue of the Government of West Pakistan. Notification No. LR. 31/15‑60 dated the 6th of October, 1960 in certain specified districts of West Pakistan including the District of Lahore, the Governor of West Pakistan, in exercise of the powers conferred on him by sub section (1) and subsection (2) of section 27 of the Punjab Land Revenue Act, 1887 and section 105 of the Punjab Tenancy Act, 1887, had, subject to the control of the Collector of the District, invested every officer holding the post of Additional Deputy Commissioner (Revenue) or Additional Deputy Commissioner (Consolidation) or Additional Deputy Commissioner, with the powers of the Collector under the said Acts. It was in that capacity that Mr. Khadim Husain, respondent No. 1, who is the Additional Deputy Commissioner, Lahore, had assumed the powers of the Collector, Lahore District, and passed tile impugned order on revision after hearing both the parties.

5. Under section 9 (2) of the Ordinance such a revision lies to the Collector. The term "Collector" has not been defined in the Ordinance or the Rules made thereunder. So reliance has to be placed on clause (10) of section 2 of the General Clause Act, 1897 (Act X of 1897) (as adapted) for this definition. "Collector" means the chief officer incharge of the revenue administration of district and shall include a Deputy Commis sioner of such district. For the purposes of section 9(2) of the Ordinance it is the chief officer of the revenue administration of the district or the Deputy Commissioner of the district who is competent M entertain the revision. An Additional Deputy Commissioner, not being the chief officer incharge of the revenue administration in the district is not competent to dispose of the revision under the Ordinance. The appointment of the Additional Deputy Commissioners of the various districts to exercise the powers of a Collector under the Land Revenue Act, 1887 and the Tenancy Act, 1887 by virtue of notification dated 6th of October 1960 is valid for the purposes of those two Acts only. It cannot enure for the purposes of any of the powers vested in the Collector under the Family Laws Ordinance, 1961. In Zahiruddin and others v. The Collector, Lahore (P L D 1962 Lah. 453) a somewhat similar situation arose. Under the Basic Democracy Election Rules, 1959, the Collector with the approval of the Commissioner was authorised to change the election programme. The word "Collector" is not defined in those Rules but the definition of the term is to be found in the Basic Democracies Order (President's Order No. 18 of 1959). Sub‑clause (2) of clause 2 of that Order which defines the term "Collector" is similar. It means "the chief officer incharge of the revenue administration of the district concerned and includes a Deputy Commissioner and any other officer specially appointed by the Government to perform all or any of the functions of a Collector under this Order." In that case it was held that Kanwar Zulfiqar 'Ali Khan, the Additional Deputy Commissioner, who had been granted all the powers of the Collector under the Land Revenue Act did not possess the powers of the Collector under subsection (2) of section 2 of the Basic Demacracies Order, 1959, because he was not appointed by the Government to perform the duties of a Collector under that Order.

6. From this discussion it follows that Mian Khadim Hussain, Additional Deputy, Commissioner, Lahore, was not competent to entertain the revision under section 9(2) of the Ordinance and, therefore, his order dated 9th of April 1964, was without jurisdiction.

7. However, the learned counsel for respondent No. 2 has strenuously argued before us that the petitioner has disentitled himself by his own conduct and acquiescence to raise this objection. He should not be heard to raise this objection for the first time in this Court, especially in the exercise of our equitable jurisdiction vested in us under Article 98 of the Con stitution. It is stressed before us that the petitioner had himself approached respondent No. 1 on at least two different occasions during the course of the proceedings before the Arbitration Council, once for the removal of the Chairman and for the transfer of the case from 'him and then again for change of his arbitrator and had obtained favourable orders from him. Again after the decision of the Arbitration Council, the petitioner himself applied to respondent No. I in revision against the certificate granted by the Arbitration Council and never raised any objection to the jurisdiction of respondent No. 1 in these matters under the Ordinance. It is asserted that at this late stage, the petitioner, who was all along sitting on the fence, cannot be permitted to raise these objections. He cannot blow hot and cold in the same breath.

8. In Ghulam Haider v. Mst. Bhago and others (P L D 1962 Lah. 326), cited by the learned counsel for the petitioner, in this respect it was held that orders passed in the absence of jurisdiction are not binding; in the eye of law, an order passed without jurisdiction does not exist at all and can be ignored by any one who chooses to treat it as a waste paper, which it is; and, therefore, the omission of the petitioner in the writ petition to attack that order on the ground that it was without jurisdiction, is immaterial. Similarly, to Yousaf Ali v. Muhammad Aslam Zia and others (P L D 1958 S C (Pak.) 104), their Lordships of the Supreme Court have held that where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of law such order being void and non‑existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with super‑structure of rights and obliga tions built upon them, must, unless some statute or principle of law recognizing as legal, the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded. There can be no doubt that an order without jurisdiction is no order at all in the eye of law and is not worth the paper on which it is written. But the question to be seen in this case is different. Assuming, as found by us the impugned order passed by Mian Khadim Husain, Additional Deputy Commissioner, Lahore on the 9th of April 1964. was without jurisdiction, can it be said that the petitioner by his conduct and acquiescence is debarred from challenging it? This question is answered by a reference to Ghulam Mohyuddin v. Chief Settlement Commissioner (P L D 1964 S C 829). In that case, their Lordships of the Supreme Court have held that in deciding whether or not a particular remedy shall be granted, the Court is entitled to enquire into the conduct of the applicant and the circumstances of the case, in order to ascertain whether it is proper or not to grant the remedy sought, depending upon the discretion of the Court. The principle upon which the writ is refused in such cases is not that the jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction. The person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself. Their Lordships have further held in that case that the order passed by the Settlement Commissioner, was a nullity in the eye of law, but it did not follow from that that a writ of certiorari must issue as a matter of course to quash such an order. One of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal, whose illegal order he seeks to have quashed by writ, if he was aware, that the Tribunal lacked the jurisdiction it purported to exercise. In a case reported from the Indian jurisdiction reported as Messrs Panna Lal Bingrag and others v. Union of India and others (AIR 1957 S C 397) it was observed that where none of the petitioners raised any objection to their case being transferred under section 5 (7‑A), Income‑tax Act, and in fact submitted to the jurisdiction of the Income‑tax Officers to whom their cases had been trans ferred; the petitioners having acquiesced in the jurisdiction of the Income‑tax Officers were not entitled to invoke the jurisdiction of the Supreme Court under Article 32 of the Indian Constitution and that is well‑settled that such conduct of the petitioners would disentitle them to any relief at the hands of the Supreme Court. In Rex v. Williams Phillips : Ex parte ((1914) 1 KB608), Channell, J. has emphasised this principle and observed: "A party may by his conduct preclude himself from claiming the writ 'ex debito justitiae', no matter whether the proceedings which he seeks to quash are void or voidable. 'If they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted `ex debito justitiae' to a person who fails to state in his evidence on moving for the Rule nisi that at the lime of the proceedings impugned he was unaware of the facts on which he relies to impugn them."

9. There is no odium attached to this doctrine. It is not employed to exclude the truth and to shut it out. Its whole force is directed against the party to close his mouth to allege or plead the truth. It is well‑settled that a party litigating must act consistently. It is a wholesome doctrine of law that a party cannot be allowed to play fast and loose; blow hot and cold and approbate and reprobate, to the detriment of his opponent. Where a person knowingly and wilfully invites the Court to adopt procedure, he cannot be permitted to turn round and blame the Court for the very same procedure which he himself invited the Court to follow. When the conduct of the applicant has been such as to disentitle him to the assistance of this Court, no writ can be issued at his instance even though the impugned order may in fact be found to have been passed by the authority concerned without any jurisdiction. It is not that the order under attack has been clothed with any legality but because of the fact that the mouth of the person who has acquiesced in it is shut against it and in equity he cannot be heard to say anything against it. The Court will refuse to exercise its discretion in his favour in those circumstances. A person can be said to have acquiesced when he was aware or could have been aware of the defect of jurisdiction in the Tribunal with the exercise of due diligence but did not object to the usurpation of the power by the Tribunal and invited it to exercise the jurisdiction which it lacked.

10. Turning to the facts of the present case, the petitioner has not even alleged in his writ petition that he was unaware that respondent No. 1 had no jurisdiction to entertain his revision and that he, had participated in those proceedings in ignorance. It is apparent that the petitioner had himself invoked the jurisdiction of respondent No. 1 on at least three different occasions. On the application of the petitioner to respondent No. 1 the proceedings which were started before Mr. Zafar Husain, the Chairman of the Union Council concerned were withdrawn from him and entrusted to Mr. Khakan Babar. Again on another occasion on the application of the petitioner before respondent No. 1, he was allowed to change the arbitrator nominated by him. Finally on his revision, respondent No. 1 reduced the maintenance awarded by the Arbitration Council from Rs. 200 per month to Rs. 100 per month only. Having procured these orders in his favour from respondent No. 1, the petitioner cannot be heard in this Court to challenge his jurisdiction. The decision of the Arbitration Council allowing Rs. 200 per month as the maintenance to respondent No. 2, was unanimous to which the representative of the petitioner had also agreed. The marriage between the parties was admitted. The case of the petitioner was that the wife was under a legal obligation to live with him, perform her conjugal obligations towards him and that she had no right to clam the maintenance by living away from her husband. The petitioner had levelled serious allegations against the chastity of his own wife and said that she was not a virgin at the time of his marriage with her. The Arbitration Council tried its utmost for an amicable settlement between the parties but the petitioner was not prepared to trust his wife and it was of the opinion that under those circumstances created by the husband it was not safe for the respondent to put up with him. Her very honour was in danger. In these circumstances the respondent No. 2 was justified in claiming the maintenance from him. The petitioner is a partner of Sabir & Company which is doing lucrative business and is assessed to income‑tax. The Arbitration Council had, on the basis of the evidence before it, fixed the maintenance at the rate of Rs. 200 per month. As already mentioned the amount was reduced to Rs. 100 per month on the revision filed by the petitioner. In law the petitioner is bound to maintain her wife and in the circumstances of this case the maintenance of Rs. 100 per month allowed to her is not excessive. The equities of the care are against the petitioner and his conduct disentitles him from claiming any relief from this Court in the exercise of our jurisdiction under Article 98 of the Constitution.' Therefore, we decline to interfere in this case at the instance of the petitioner.

11. For the reasons discussed above, this writ petition must fail and is dismissed. No costs. K. B. A. Petition dismissed.