1994 PLP 94 (CLC)

"The Hon'ble Court be please to hold and declare that the respondent No.l has acted contrary to normal judicial practice and ought to have (i) issued notice to the respondents as well as (ii) ought to have himself called for the record, inspected the same and if found relevant documents coming on the record ought to have issued direction to the petitioner either to produce certified copies or otherwise the same ought to have been taken on record before hearing the final argument and/or passing any judgment thereon. The impugned order Annexure E‑1 thus be set aside and an appropriate order conducive to the dispensation of justice be passed upon by the Hon'ble Court and any other order/orders that in the circumstance is likely to be passed." The facts leading to the filing of the above Constitution petition are that Mian Mairaj Gul Syed Kakakhel "Al‑Maroof Hazarat Baba Laal Shah Tahir" (hereinafter referred to as "Baba Laal Shah") was a pious saint, who after leaving all the comforts of worldly life about 45 years back came to Clifton, Karachi and stationed himself in a cave behind Mazar of Hazrat Abdullah Shah Ghazi and devoted his life for preaching of Islam, Tassawaf and enlightenment, resulting into, with the passage of time, thousands of followers and desciples. Baba Laal Shah belonged to a Syed family of Kakakhel who are descendents of Hazrat Imam Zainul Abedin (Rehmatullah Alaih) and many saints and spiritual persons in past had devoted lives for Islam. Baba Laal Shah, seeing difficulty faced by his `Mureeds' (followers) constructed "Hujras" and rooms on the open space and rooms on the small hill for "Daras" where he used to sit, with the help of his "Mureeds" who had a great love and respect for him. On 26‑i1‑1983 Baba Laal Shah died and he was buried in his "Hujra" at the hill top and Mazar was constructed thereon. Mian Rahim Gul Syed Kakakhel was nominated Sajjada Nashin by Baba Laal Shah who started looking after the improving the tomb of Mazar and continued his mission of preaching of Islam. The Government of Pakistan has also acknowledged and accepted him as Sajjada Nashin. The respondent No.2 vide Notification No. AUQ (CAA) Misc. 83585, dated 5‑12‑1983 extended the area of management of the shrine and property of Mazar of Hazrat Abdullah Shah Ghazi situated at Clifton, Karachi, without including the Mazar of Hazrat Baba Laal Shah. The respondent No.3, however, under the garb of. taking possession under the above said notification, attempted to take possession of Baba Laal Shah Tahir as well with the aid and connivance of S.D.M. South, Karachi and through S.H.O. Clifton Police Station even much more before the issuance of the notification. The said Mian Rahim Gul filed a petition before the respondent No.l under section 11 of Ordinance IX of 1979 against the illegal acts of respondents. The said Rahim Gul as well filed Suit No.110/84 against the respondent No.2 in the Court of Civil Judge, Karachi since the Ordinance prohibited issuance of any injunction and prayed for interim order against the respondent No.2. The trial Court granted injunction which order was however set aside by Additional District Judge, Karachi. The said Mian Rahim Gul challenged the order in this Court. During the pendency of revision, Official Assignee was appointed as Commissioner to inspect the side and give his report as to whether disputed Mazar is situated within the area taken over by the Auqaf, in the notification of 7‑9‑1987, the Official Assignee was directed to appoint architect. The Official Assignee submitted his report as well as the report of architect and site plan of the measurement made by the architect appointed by the Official Assignee. The report shows that the area is 28,320 square yards and the area of Mazar of Baba Laal Shah comes to 2,908.40 square yards. The said Mian Rahim Gul moved an application under section 151, C.P.C. praying to allow to produce the inspection report and plans prepared by the Official Assignee and the Architect. The respondents contested the application. The application was rejected on 30‑8‑1988. While rejecting the application, the learned District Judge, Karachi South observed that the side of the petitioner was closed on 21‑1‑1988 and no reasonable ground had been shown by the late; production and granting of application would amount to give further opportunity for petitioner's evidence. The said Mian Rahim Gul had filed an application under Order XIII, Rules 10 and 11 read with Order XIII, Rule 2 and section 151, C.P.C. praying to send for the record of the Civil Judge as well as that of the record sent by this Court. This application was moved on 7‑12‑1988. This application was dismissed on 10‑12‑1988. It is necessary to reproduce the order which reads:‑‑ "A similar application was earlier moved. The same was dismissed by my learned predecessor by his order dated 30‑8‑1988. Accordingly it cannot be repeated. In fact, from record what I could gather is that on one ground or the other, the matter is being dragged on. Accordingly this matter being of 1984 cannot be permitted to be dragged any more." Being aggrieved by the aforesaid order, the said Mian Rahim Gul had filed the instant petition. The said Mian Rahim Gul died on 31‑3‑1991 and he was buried in Village Kehnian. Syed Inayat Hussain has filed an application under section 151 read with Order 1, Rule

10. C.P.C. for substituting his name in place of late Mian Rahim Gul. Syed Inayat Hussain stated in para. 4 of the application that late Syed Mian Rahim Gul in a meeting of his "Mureedain" and "Muhabeen" had nominated him as his successor on or about 10‑6‑1990. The respondents contested this application. The respondent pleaded that Mian Rahim Gul died, the applicant has no further cause of action. We have heard Mr. Z.U. Ahmed, learned counsel for the applicant, Syed Inayat Hussain, and Mr. Sadruddin Huda, learned counsel appearing for the respondents. Mr. Sadruddin raised the following preliminary objections: (1) Whether Syed Inayat Hussain has cause of action to continue and agitate the relief in this petition ? (2) The petition is not incompetent. On the other hand, Mr. Ahmed submitted that on the death of Mian Rahim Gul, the cause of action survives. The petition is competent. Rule 1 of Order XXII of the Code of Civil Procedure provides that the death of plaintiff or defendant shall not cause the suit, to abate if the right to sue survives. Abatement is a concept of procedural law and takes effect upon a proceeding becoming defective by the death of any of the parties to a cause and one prominent feature is that the proceedings may be revived by the substitution of parties up to which time they remain in a state of suspense. It is well‑settled legal position that all rights of action existing in favour of or against a party survive, but personal activities connected with the individuality of the deceased do not survive. Actio personalise moritur cum persona‑ person right of action dies with person. Late Mian Rahim Gul was not claiming to establish right to personal office. The prayer in petition under , section 11 of the Ordinance is that Mazar of Baba Laal Shah Tahir is beyond a the area of the shrine and property of Mazar of Hazrat Abdullah Shah Ghazi. The question whether right to sue survives in a particular case, falls within the realm of substantive law and is not a matter pertaining to the trial of a petition. In the present case, late Mian Rahim Gul had only claimed in his petition, that the order passed by the first respondent is without jurisdiction. In these circumstances, the conclusion is that on the demise of Mian Rahim Gul, his petition is not abated and his successor can continue the petition. In that view of the matter, we allow the application and substitute Syed Inayat Hussain in place of Mian Rahim Gul. Under section 12 of the Sindh Waqf Properties Ordinance, an appeal lies to the High Court. The word used is "decision". The word "decision" does not include any order. In that view of the matter that can only be by an extraordinary jurisdiction. In a case reported in PLD 1975 Karachi 448, it was , held that "in the first place even no appeal lies to the District Court, there are other means of correction as for example by an appeal to the extraordinary jurisdiction of this Court under Article 199 of the Constitution". Both the preliminary objections are overruled. A Court is competent to consider and modify its own orders and that it is even open to a successor‑in‑office to do so. The real test appears to us to be the nature of the order. It relates merely to the issue of process to summoning witnesses for production of evidence or for sending for papers from its own record or from other Courts not having the effect of a final decision, there can be no impediment for a Court to reconsider the order. Such an order is in the nature of a chamber order such as is referred to in Yousuf IA. Lalji v. Abdullahbhoy Lalji (No.l) 32 BLR 665: (AIR 1930 Bombay 294) and the matter is within the discretion of Court. In the case before us, the petitioner moved an application which was dismissed on 30‑8‑1988. The matter was adjourned from time to time on one ground or the other. The dragging of the matter could not be said to be deliberate. Nor was this circumstance by itself to jump to the conclusion that late Mian Rahim Gul was deliberately indulging in dilatory tactics or abusing the process of the Court. The trial Judge was over hasty in passing the impugned order. Promptitude and despatch in the dispensation of justice is a desirable thing but not at the cost of justice. All rules or procedure are nothing but handmaids of justice. They cannot be construed in a manner which would hamper justice. As a general rule, evidence should never be shut. The fullest opportunity should always be given to the parties to give evidence if the original omission to give evidence arises from negligence or carelessness. It should be allowed if that can be done without prejudice to other side. There is no injustice if the other side can be compensated by costs. Mr. Sadruddin Huda placed reliance on decision reported in 1976 SCMR 450 in support of his submission that the other adequate remedy is available. The contention is devoid of force: In a case reported in PLD 1961 SC 119, it was held that where a statutory functionary acts mala fide or in partial, unjust and oppressive manner, the High Court in the exercise of its Constitutional jurisdiction has power to grant relief to the aggrieved party. A question of jurisdiction is a matter of review, which is based not on the merits but on the legality of the lawyer authority's proceedings (See PLD 1958 SC (Pak.) 41) and PLD 1972 SC

279. We are aware of our limitations in exercise of power under Article 199 of the Constitution in respect of the findings arrived at by the lower Tribunals. Where the Tribunals exercising judicial function or quasi‑judicial functions, does not give reasons for its conclusion, the Court can interfere with such finding, in exercise of its jurisdiction under Article

199. Reasons in support of a conclusion ensure that the conclusion is t reached in accordance with law and is not an outcome of whim or fancy or policy or expediency. Action of the Tribunal exercising power under any statute in passing an order seriously prejudicing the rights of the party concerned without giving reasons for his conclusion, amounts to negation of the rule or law. In Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal (PLD 1987 SC 447), it was observed as follows:‑‑ "I cannot agree with the learned Judge in the High Court. The view of the learned Judge that this Court has ruled that even if the order of a Tribunal is wrong in law, the High Court still cannot intervene in exercise of its Constitutional jurisdiction is not justified and I feel that the judgments of this Court in cases of Muhammad Hussain Munir (PLD 1974 SC 139) and Zulfiqar Khan Awan (1974 SCMR 530) have not been read in their proper context. It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it `rightly or wrongly' because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction." In this view of the matter the preliminary objections are overruled. This brings us to the consideration of merits of the case. The side of the petitioner was closed on 21‑1‑1988. On 27‑11‑1988 Revision Petition No.159/87 was disposed of in terms of application under Order XXIII, Rule 1, C.P.C. and office was directed to send R & P as well as reports of the Official Assignee, report of the architect and site plan. The Official Assignee and the architect inspected the site in the presence of parties. These documents could not be manufactured by late Mian Rahim Gul. These reports had a great bearing on the decision of the case one way or the other and merely because Late Mian Rahim Gul by inadvertence failed to produce at an early stage of the proceedings would not disentitle Mian Rahim Gul from consideration of the reports on merits. The procedural law is a handmaid of justice and even if there was infraction of the same, if no valuable right had accrued to the opposite‑party, it was a fit case for sending the reports and site plan' from the Civil Judge to have the reports and site plan exhibited and proved. Accordingly, we are of the opinion that the first respondent committed an error in declining the production of the report of the Official Assignee and report of the Architect and site plan on record or sending for the record of suit. Accordingly we set aside the order of first respondent as being illegal. The first respondent had acted illegally in exercise of its jurisdiction and we further hold that if the order is allowed to stand, it will occasion a failure of justice. In view of the above, the impugned order of the first respondent dated 10‑12‑1988 is declared as without lawful authority and of no legal effect. The first respondent is directed to send for the reports of the Official Assignee and the architect and the site plan and record of Suit No.110/84 and RA. No.159/87 before this Court and to bring on record. However, the respondents shall be at liberty to adduce evidence in rebuttal. It is only thereafter that the first respondent will hear the arguments of the learned counsel for the parties and dispose of the petition in accordance with law. However, there will be no order as to costs. H.B.T./R‑252/K Petition allowed.