P L D 2014 Lahore 635 (PLP)

Through this Intra Court Appeal, the appellants have assailed legality of order dated 18-4-2011 passed in Writ Petition (No.984 of 2008) whereby the learned Single Judge in Chamber directed the appellants to deliver tractors to respondent No.1.

2. Shorn of unnecessary details, the facts, forming factual canvass of the instant Intra Court Appeal, are that respondent No.1 filed writ petition with the averments that he got booked five tractors from the appellants and deposited the requisite amount but the appellants, instead of handing over the tractors within the due date, claimed price of the tractors according to revised rates. The said petition was disposed of by the learned Single Judge in Chamber through order dated 18-4-2011 whereby the appellants were directed to handover the tractors to respondent. Aggrieved by the said order, the appellants have filed the instant Irtra Court Appeal.

3. Learned counsel for the appellants, while opening his arguments, submits that the impugned order has been passed on the petition filed by respondent No. 1 which otherwise was not maintainable inasmuch as the appellants were not working in connection with the affairs of the Federal or Provincial Government; that the appellants do not fall within the definition of a "person" as postulated under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; that as respondent No.1 failed to get delivery of the tractors within the stipulated period, he was bound to pay the price according to the revised rates. In support of his contentions, learned counsel has relied upon the case reported as Wazir Ali Khoja v. Muslim Commercial Bank Ltd. and others (1998 PLC (C.S) 1068), Mst. Kancez Nargis v. Millat Tractors Ltd. Sheikhupura Road through Chief Executive and 3 others (2009 YLR 1462), Hussain Shah v. Chanar Match Factory Ltd. (2000 YLR 1745) and Abdul Malik v. Habib Bank Ltd. through President, Habib Bank Karachi and 3 others (2008 CLC 339).

4. Conversely, learned counsel appearing on behalf of defendant No.1, while defending the order impugned in this appeal, submits that as the appellants are under the supervision of Federal Board of Revenue (previously Central Board of Revenue) qua levy of any tax, so order was rightly passed by the learned Single judge in Chamber and that when respondent No.1 otherwise is entitled for delivery of tractors, he cannot be deprived of merely on the ground that writ petition filed by him was not maintainable.

5. We have head the learned counsel for the parties at considerable length and have also gone through the documents appended with this petition as well as those forming part of the writ petition filed by respondent No.1 . A cursory glance over Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 shows that constitutional jurisdiction of this court is confined to the persons who are performing functions in connection with the affairs of the Federation or a Province. Further, the word "person" has been defined under Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973, which for convenience of reference is reproduced herein below:-- "Person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan;" According to the afore-quoted definition of a person, writ petition is only maintainable against the authorities categorized hereinabove. Insofar as the matter in hand is concerned, appellant No.1 being Private Ltd. Company, jurisdiction of this court is not attracted. If any case-law is required, reference can be made to the cases reported as Salah ud Din and 2 others v. Frontier Sullar, Mills and Distillery Ltd. Tokht Thai and 10 others PLD 1975 SC 244), Syed Khalid Ali Bukhari and another v. Govt. of Pakistan and others (2012 PLC (C.S) 818), Muhammad Masood Butt and 3 others v. S.M. Corporation (Pvt.) Ltd. and 6 others (2011 CLD 496) and Muhammad Saleem v. Chief Controller of Boiling KESC Karachi and others (2010 YLR 2946).

6. It is of paramount importance that a court, prior to taking cognizance of a matter, is supposed to determine the question of its jurisdiction and any order passed without jurisdiction cannot be allowed to held the field for a moment.

7. There is no cavil with the preposition that respondent No.1, after having deposited the price of tractors, might have been entitled to their delivery but the question still remains that as to whether this court had the jurisdiction to direct the appellants to handover the tractors to respondent No.1 . The answer is negative.

8. As a necessary corollary to the discussion made in the preceding paragraphs, we have no hesitation in our mind to hold that writ petition filed by respondent No.1 against the appellants was not maintainable. Consequently, instant Intra Court Appeal is accepted and the order impugned is set aside with no order as to costs. MWA/A-78/L Appeal allowed.