1983 PLP 1648 (CLC)

Muhammad Hussain Awan for Petitioners. Muhammad Yaqub Khan and Raja Muhammad Akram for Respondents Nos.. l to 6 and 11 to

15. Nemo for Respondents Nos. 7 to

10. Date of hearing : 16th May, 1983. This petition for civil revision calls in question the order dated 30th July, 1980 passed by the learned District Judge, Lahore, whereby he granted the application of Mirza Israr‑ul‑Qadir respondent No. 1 to sell the wakf property specified in the said. application forming part of the wakf created by late Mirza Sir Zafar Ali.

2. Mirza Israr‑ul‑Qadir respondent No. 1 son of late Khan Bahadur Sir Zafar Ali is the mutawalli of the Wak f‑alai‑Aulad created by Khan Bahadur Mirza Sir Zafar Ali through the Wakf Deed dated 24th June, 1936. The said respondent, petitioner and the other respondents are the beneficiaries of the wakf. Mirza Israr‑ul‑Qadir submitted an application to the learned District Judge, Lahore, seeking permission to sell the properties, namely, 7 flats known as Zafar Ali Mansions, Canal Bank and two bunga lows bearing Nos. 8 and 10 Zafar Ali Road, V‑Gulberg, Lahore, and that the sale proceeds thereof be allowed to be invested in a more income yield ing ‑ project for the interest and benefit of all the beneficiaries. It was maintained in the application that the wakf properties sought to be sold were very old and in dilapidated condition and that the income being derived by way of rent from these properties was very meagre and insufficient. The properties required extensive repairs which were likely to cost several lacs of rupees but even after incurring such huge expenditure they were not likely to yield income compatible to the expenditure which would thus be incurred. These properties in view of their location were likely to fetch a price of more than one and a quarter of crore which could yield the annual income of more than rupees fourteen lacs if the sale proceeds were deposited in a fixed‑deposit account. Thus, the proposal about the sale of the pro perties was claimed to be for the benefit of the beneficiaries.

3. The application for permission to sell the wakf property filed by respondent No. 1 was resisted by the present petitioner and certain other beneficiaries through their counsel Mr. Muhammad Rashid Ahmad, Advocate. The learned counsel for the contesting respondents appeared before the learned District Judge on 16th July, 1980 and was allowed an adjournment to seek instructions from his client. The matter was directed to be put up on 30th of July, 1980. On the said date (30th of July, 1980) the learned District Judge passed the order, which is sought to be revised through the present petition for civil revision, grant ing the application of respondent No. I for permission to sell the wakf property. It transpires from the contents 6f the order dated 30th July, 1980, that originally Mr. Muhammad Rashid Ahmad, Advocate, opposed the application but he agreed to the grant of application of respondent No. I subject to certain reservations and safeguards. He (Mr. Muhammad Rashid Ahmad, Advocate) demanded that the sale should be conducted under the supervision of the Court, that the sale proceeds should be deposit ed in a scheduled bank in the ‑name of wakf and not in the name of mutawalli and that the latter should not be permitted to operate the account without the permission of the Court. These conditions were accepted by the learned counsel for respondent No. 1 and, therefore, the petition of respondent No. 1 for permission to sell the property was granted and the panel of two learned Advocates was appointed to advertise in the press about the proposed sale of the wakf property and to negotiate and settle the terms and conditions of the sale with the intending purchasers and to submit feasibility report to the Court for approval.

4. The aforementioned order is sought to be revised mainly on the grounds; (1) that Mr. Muhammad Rashid Ahmad the learned counsel for the petitioner did not given his consent to the permission of sale of wakf pro perty by respondent No. 1, rather lie vehemently opposed the proposal; (2) that the property sought to be sold is admittedly a wakf property and thus an institution in perpetuity cannot be legally extinguished even with the consent of the beneficiaries; (3) that the learned District Judge while passing the impugned order has acted with undue haste and has failed to come to his own independent finding; (4) that the proposed sale is against the wishes of the wakf; and (5) that by passing the impugned order, the District Judge has abdicated his jurisdiction in favour of the mutawalli and beneficiaries while acting upon their alleged consent instead of arriving at his own independent conclusion.

5. So far as the question of consent of Mr. Muhammad Rashid Ahmad, Advocate is concerned, the learned Advocate has sworn an affidavit to the effect that he had never agreed to the acceptance of the application filed by Mirza Israr‑ul‑Qadir and had agreed only to the appointment of Mr. Khalil‑ur‑Rehman Khan and Sh. Maqbool Ahmad II, Advocates for the purpose of preparing simply a feasibility report as to what price the wakf property could fetch and this could by no means be construed as his consent to the permission to sell the property in question. It was clarified that after drawing the report, if the parties did not agree then the application for permission to sell the property was to be contested by the parties on merits. As against the affidavit sworn by Mr. Muhammad Rashid Ahmad, Advocate, Sh. Ijaz Nisar the then learned District Judge, Lahore in his comments has averred that he granted the application through the impugned order with the approval and consent of the learned counsel for the parties and that Mr. Muhammad Rashid Ahmad, Advocate had agreed to the sale of the wakf property on the conditions detailed as above. The sale, of course, was to take place subject to approval of the District Judge and the Local Commissioners were only to submit to Court a feasi bility report about the sale after advertising the sale in the press and con ducting negotiations and settling terms and conditions with the intending vendees. Sh. Ijaz Nisar categorically maintained in his comments that the contents of the affidavit of Mr. Muhammad Rashid Ahmad, Advocate were not based on correct facts. It is further maintained that if he had not agreed to the sale of the property how could Sh. Ijaz Nisar know about the conditions and safeguards which have been incorporated in the impugned order. In Muhammad Zaman v. Abdul Ghaffar and 3 others (P L D 1980 Lah. 582) it has been held that presumption of correctness is attached to judicial proceedings and such presumption arising from section 114 of the Evidence Act as to the legality and correctness of the Court proceedings can only be overturned by exceptionally strong evidence produced by a complainant on the record. In Abdul Wahab and others v. Habib Ali and others (P L D 1969 Lah. 365) it was ruled that if a party by its conduct, obliges the Court to adopt a course that party will be debarred from raising the objection as to the procedure on the very salutary principle that after having led the Court to do a certain thing for the benefit of the parties, none of them can be allowed to challenge the same. In Ghulam Rasul v. Ch. Din Muhammad (P L D 1967 Lah. 665) it was laid down that there is a strong presumption of correctness in favour of all judicial and official acts Which cannot be displaced by the mere allegation of a petitioner.

6. In the circumstances of the present case, it has already been observ ed that the learned District Judge has duly recorded in the impugned order about the consent of the learned counsel, namely, Mr. Muhammad Rashid Ahmad and in his comments furnished to this Court he has further reitera ted the fact that the consent referred to in the impugned order was in fact given by Mr. Muhammad Rashid Ahmad, Advocate. In view of the pre sumption attached to judicial acts under section 114 of the Evidence Act which has been further reinforced by the contents of the comments furnished by the District Judge, it is concluded that there is no substance in the allega tion that Mr. Muhammad Rashid Ahmad did not consent to the permission for the sale subject to the conditions incorporated in the impugned order. As regards the other contention that the learned District Judge proceeded with undue haste and that he abdicated his jurisdiction in favour of the mutual consent of the parties, it may be observed that in the impugned order the learned District Judge has duly recorded the circumstances which amply indicated that the wakf property sought to be sold was in dilapidated con dition, its income through rent was very meagre and the cost of repair which was likely to be incurred was not consistent with the income which the property yielded by way of rent. The learned District Judge also consider ed this aspect of the matter that in view of its location, the property sough to be sold was likely to fetch a very good price and if the same was kept in fixed deposit, it would yield sufficient profit for the benefit of the beneficiaries. The learned District Judge, therefore. keeping in view the interest of the beneficiaries and also the conditional consent of Mr. Muhammad Rashid Ahmad, Advocate passed the impugned order. In the circumstances, it can not be said that while passing the impugned order the learned District Judge proceeded with undue haste or that he failed to exercise his jurisdiction in the matter. In Muhammad Asad Ali Khan and others v. Sadiq Ali Khan and others (A I R1943 Oudh 91) it was held that a wakf is subject to the supervision of the Qazi and that Qazi can exercise his discretion in the matters pertaining to the management of the wakf. In Muhammadan Law by Syed Ameer Ali it has been provided that the Qazi has the power of empowering the mutawalli to grant leases for a longer period than provided for by the wakf if the same is considered advantageous to the wakf.

7. The petitioner's plea that the impugned order amounted to extinction of the waqf, an institution in perpetuity is devoid of any merit inasmuch as it has clearly been provided in the impugned order that the income derived from the sale of the wakf property would be deposited in Bank in the name of the wakf and not in that of mutawalli and that the profit thus derived from the deposit would be distributed among the beneficiaries in accordance with their shares as detailed in the Wakf Deed. The wakf is thus not going to be extinguished as a result of the sale for which permission has been accord ed by the learned District Judge through the impugned order.

8. It hag also been argued on behalf of the petitioner that wakf did not permit the sale of wakf property and, therefore, the learned District Judge could not pass the impugned order. Even in the absence of permis sion by the wakif in the Wakf Deed, the Qazi can competently authorise. the sale of the wakf property when the same is considered to be advan tageous for the wakf. In the commentary on Muhammadan Law by Syed Ameer Ali, it has been provided that the wakf can alter the investment only when the power of sale has been expressly reserved. In the absence of any such power, the Qazi if he deems it expedient, may authorise the sale of the wakf property and a re‑investment of the proceeds in any shape . conducive to the proper maintenance of the wakf.

9. It is noteworthy that on an earlier occasion also at the proposal and with the consent of the mutawalli and the beneficiaries of this very wakf, the learned District Judge, Lahore vide his order dated 6th August, 1977 permitted the mutawalli to sell some property forming part of this wakf subject to the condition that the proposed sale was to be advertised in the Daily "Nawa‑i‑Waqt" Lahore and Daily "Pakistan Times", Lahore. The sale was to be finalized by the mutawalli but the Court was to be informed first of the highest bid. It was also directed that sale price would be kept in the fixed deposit account in the scheduled bank and the amount of interest would be distributed amongst the beneficiaries strictly in accordance with their shares as detailed in the deed of wakf. The impugned order, in the circumstances, is not an unprecedented one and it too is based on the con sent of the parties. The permission to sell the wakf property has been accorded subject to similar conditions.

10. In the light of the foregoing observations, it is concluded that the impugned order has been passed by the learned District Judge, with the consent of Mr. Muhammad Rashid Ahmad, Advocate, the learned counsel for the petitioner, and that otherwise too the order does not suffer from an illegality or material irregularity calling for any interference by this Court in exercise of its revisional jurisdiction.

11. In this view of the matter, the petition for civil revision fails and is dismissed leaving the parties to bear their own costs. M. Y. H. Petition dismissed.