1997 PLP 578 (CLC)

5. On the other hand, Sh.Sair Ali, Advocate while summing up the arguments maintained that the property was not evacuee but since its possession was taken over by the Custodian Evacuee Property and that was to continue till the notification by the Federal Government, which has not been issued till today. It was added that there is a difference between 'Evacuee' and, 'Evacuee property'. The notification dated 30‑8‑1961 only declared the bank as non evacuee and not the property owned by it, which continued to vest in the Custodian of Evacuee Property, therefore, the judgment of 'Punjab Cooperative Bank' was fully applicable. It was argued that the suit was competent as the petitioner was lessee of the Bank, person in possession and entitled to benefit of the scheme dated 8‑3‑1979 issued by the Federal Government for disposal of enemy property. The learned counsel also referred to paras. No.5 and 6 of the plaint to show that the case was not covered under Order VII, Rule 11, C.P.C. It was argued that the petitioner was not estopped as he was made to pay rent at least by misrepresentation. The learned counsel in support of these arguments referred to the judgments in the case of ' Mr. Muhammad Jamil Asghar' and 'Burmah Eastern Ltd.' (supra). The arguments were summed up with the submission that the defect in plaint cannot be made basis for its rejection and only open and shut cases are recovered by this provision.

6. Mr. Jahangir A. Jhojha, Advocate argued that the suit was competent under section 42 of the Specific Relief Act as the right was claimed by the plaintiff. It was added that the averments in the plaint were controverted by the Bank, therefore, could not be decided without framing issues and recording evidence and it was not a case of estoppel.

7. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provision of law and precedent cases. The admitted position is that the property belonged to the Punjab National Bank (hereinafter to be referred as Punjab Bank), which on the eve of the independence of the country, had its registered office at Jalandhar: Learned counsel for the parties referred to following statutes in their arguments:‑‑ (i) West Punjab Protection of Evacuee Property Ordinance, 1947 (ii) Ordinance XV of 1949 (iii) Act of 1957 The property of joint stock company with its head office situated in a territory forming part of the India was excluded from the definition of evacuee property in the Ordinance XV of 1949. The National Bank of Pakistan (hereinafter to be referred as respondent‑Bank) has relied on a notice/order (Annexure R.12) dated 25‑1‑1949 whereby the occupants of Punjab Bank wee informed to pay rent to the Bank, as it was not an evacuee property. This was obviously not issued under Ordinance XV of 1949, which was promulgated on 15‑10‑1949 and scrutiny revealed that the first piece of legislation on the subject was West Punjab Protection of Evacuee Property Ordinance 1947, which was promulgated on 1‑12‑1947. Thereafter, the West Punjab Protection of Evacuee Property Act VII of 1948 was enacted. It was thereafter that Ordinance XVIII of 1948 was promulgated on 18th October, 1948 by the Central Government, which was repealed by Act XV of 1949. It is interesting to note here that according to West Punjab Ordinance, 1947 and Act 1948 the property was to be taken over by the Custodian under general or special order published in the official Gazette. The word 'Evacuee Property' was defined as the owner of which cannot personally occupy or supervise or take delivery and or in the case of corporation the property which forms the assests of any business or undertaking which has ceased wholly or partially to operate owing to recent disturbance while the word ' evacuee' meant owner of any such property. This followed a general notification. While in the Act VII of 1948 the definition of 'evacuee' was made comprehensive and 'evacuee property' meant the property vesting in an evacuee. This Act was not repealed. The Central Government issued the Ordinance, 1948 without reference to either of the two provincial statutes referred to above. The petitioners have failed to place on record any notification issued under section 6 of the Ordinance XVIII of 1948 or Ordinance XV of 1949. On the other hand, the respondent‑Bank has relied the following order of Rehabilitation Officer (Housing):‑‑

.you are hereby informed that these flats do not fall under the term ' evacuee property' as along as the bank is functioning its routine in Pakistan. All allotments ‑issued by the House Magistrate or Rehabilitation Office in your name are hereby cancelled. You should, therefore, settle the question of rent and accommodation with the Manager, Punjab National Bank Ltd., Lahore within a week from the date of service of this notice, failing which you stand liable for prosecution. " It is clear from the above that the property was also not treated as evacuee under either Ordinance, 1947 or Punjab Act VII of 1948. This was followed by order of Rehabilitation Officer dated 6‑7‑1954. It is clear that the property never vested in the custodian and as such did not require any notification of divesting. This brings the discussion to post Act of 1957 period when Shabbir Sports, Sialkot filed a petition under section 40(4) of Ordinance XX of 1956 against the order dated 28‑12‑1956 of Sh. Abdul Majeed Asghar, Deputy Custodian Evacuee Property wherein he held that the Punjab National Bank Ltd. was not an evacuee concern. The appeal was partially allowed vide order dated 18‑8‑1959. The result was that the property of the Punjab National Bank was declared non‑evacuee property but at the same time it was held that it would continue to vest in custodian until such time a notification was issued by the Central Government to this effect. This order was challenged by the Punjab National Bank through Constitutional petition and during its pendency Notification dated 30‑8‑1961 was issued. The writ petition came up for limine hearing on 30‑11‑1961 and the learned Division Bench observed that since the petitioner has been exempted from the operation of all the provisions of Act of 1957, therefore, the writ petition has become infructuous and the same was disposed of accordingly. It is relevant to mention here that the custodian was represented by late Malik Muhammad Akram, Advocate as his Lordship then was while the Chief Settlement Commissioner was represented by late Maj. Ishaque Muhammad Khan, Settlement Commissioner (Legal) and none of the parties challenged this order in any forum. The same attained finality. For this reason alone the judgment in the case of Cooperative Bank is not relevant. This was judgment in PERSONAM and not in REM. The notification was not produced, therefore, not considered as is clear from page 622 of this judgment. The factual controversy was not the same as noted above.

8. Now coming to the legal controversy whether it was a fit case for rejection of the plaint under Order VII, Rule 11, C.P.C. Sh. Salr Ali, learned counsel for the petitioner heavily relied on the judgment in the case of 'Jewal and 7 others' (supra), which is clearly distinguishable as their Lordships held that, however, if there is some material before the Court apart from the plaint, the same could be looked into and taken into consideration. While in the case of Mst. Karim Bibi and others (supra) issues have been framed and the part of the evidence had already been recorded. From perusal of the judgments relied by both sides it is clear that mainly the following are the rules laid down by the superior Courts for the rejection of plaint:‑ (i) That the recording of evidence has yet not been commenced; (ii) that the averments in the plaint and other authentic documents produced by the parties could be taken into consideration; (iii) that the facts as to cause of action as stated by the plaintiff are to be assumed as proved and then it is to be decided whether the same legally constituted cause of action or not; and (iv) that the provisions of Order VII, Rule 11, C.P.C. are not exhaustive. The purpose is that still born suit should be properly buried at its inception so no time of the litigants and Court is consumed in fruitless litigation. We have to see whether there were any alive issue in the suit which furnished cause of action to the petitioners. The admitted position at least to the extent of Sh. Sabir Ali, Advocate is that the Punjab Bank was not an evacuee. It is clear from the record that the property was not treated as evacuee at any point of time. On the other hand the authorities as back as 25‑1‑1949 vide Annexure R.12 notified that the property was not an evacuee property and the occupants shall deal with the Punjab Bank, its owner. The petitioners are claiming right through either Custodian of Evacuee Property or Custodian of Enemy Property or Settlement Department, who did not claim the property or any interest, therefore, the petitioners could not maintain an action. They have neither locus standi nor cause of action in their favour. This legal position would have remained same even if the parties had been allowed to lead evidence. Sh. Sabir Ali, Advocate has categorically taken up the position that in case it is held that the case of his client is not covered by the judgment of the Hon'ble Supreme Court in the case of Cooperative Bank then the judgments of the two Courts are fully justified. I have already held that the judgment in that case is clearly distinguishable as observed in the earlier part of this judgment.

9. These were the suits for declaration and permanent injunction. The petitioner, Muhammad Sarwar in C.R. No.2208/90 has submitted a form for the transfer of the property. The claim of the petitioner and 15 others was considered by the Deputy Administrator (RP), Faridkot House, Lahore and their forms rejected vide order dated 17‑12‑1976 after holding that it was not established that the property was ever brought on the list of evacuee property. It was further observed that the applicants have not brought on record conclusive evidence to prove that the property in their possession was ever taken over, managed and controlled by the Custodian. This order was challenged by the said petitioners and others through a revision petition before Mr. Mukarrab Khan, Administrator, Residuary Property, who dismissed the same vide order dated 15‑3‑1979‑after holding that the property belonged to the respondent‑Bank and was not covered by scheme for disposal of residuary property. The matter was not pursued any further by any party, therefore, this order attained finality.

10. M/s. HAMCO, client of Sh. Sair Ali, Advocate in C.R. No.2236/90 were claiming transfer under the scheme framed for the enemy property. The property has seized to be that of Punjab Bank and vested in the respondent‑Bank much before 6‑9‑1965 when India attacked Pakistan, therefore, the same was neither part of the enemy property nor treated as such by the Custodian of Enemy Property at any point of time, therefore, the claim of the petitioner is just in the vacuum and if looked from this angle then it has no cause of action.

11. Now coming to the locus standi. The petitioners are claiming the property on account of possession whereas the property as noted above never vested in the custodian or formed part of the compensation pool, therefore., question of its transfer to the petitioners or anybody else did not arise. If looked from this angle the petitioners have no locus standi to file the civil suits. The principles involved in rejection of plaint are two‑fold: In the first place; it contemplates that a still‑born suit should be properly buried at its inception, so that no further time is consumed in a fruitless litigation. Secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may file a properly constituted cause. It is clear from the legal controversy involved and noted above that the petitioners have not raised any issue worth the name warranting trial of the suits. The plaints are stereo‑type and copies of each other. The cases were fully covered by the principles of rejection of the plaint under Order VII, Rule 11, C.P.C. as noted.

12. The upshot of the above discussion is that these revision petitions are without any merit, therefore, the same are dismissed with costs. A.A./R‑23/L Revision dismissed.