1968 SC MR 574 (PLP)

S. A. RAHMAN, J.-This appeal by Mst. Shohrat Bano who was allowed to prosecute t as a pauper, arises in the following circumstances: The respondent, Ismail Dada Adam Soomar, brought a suit fora declare a that he was the real and absolute owner of the various grope lies mentioned in the plaint, including the business of Bakers and Confectioners, Karachi, run under the name and style of Ismail Dada Adam Soomar & Company and that the defendant-appellant was merely a benamidar in respect of these properties, for the plaintiff. It may be mentioned that the appellant, is plaintiff's wife. The suit was tried on the, original side of the High Court of West Pakistan, Karachi Bench, by a learned Single Judge. It was decreed and,a declaration granted to the plaintiff to ft 'feet that the defendant-appellant was never a partner in the Business Ismail Dada Adam Soomar & Company,lBakers and Confectioners, that the plaintiff was the sole proprietor thereof, that he was the sole and absolute owner of the Garden East Property named Shohrat Villa, in respect of which the defendant was only a benamidar for him and that he also -owned the Nash car maintained at the house and decreed its possession to him. In respect of the other properties mentioned in clauses (d) and (e) of paragraph 16 of the plaint, the suit was decreed declaring the plaintiff to be the owner of those properties, except for the ornaments and cash which were held to be the personal property of the defendant. These are all movable properties of which the possession was directed to be given to the plaintiff. The plaintiff's claim in respect of Peer Illahi Bakhsh, Colony House No. 146/V was, however, dismissed. There was a Letters Patent Appeal taken by the defendant-appellant to a Bench of two Judges who affirmed the findings arrived at by the learned Single Judge and dismissed the appeal by order dated the 17th February 1964. Subsequently, another Division Bench of the High Court granted a certificate of fitness for appeal to this Court, at the instance of the defendant-appellant, by order dated the 5th February 1965. The appellant having been found to be a pauper was permitted to prosecute this appeal without the assistance of an Attorney though she had engaged a counsel for presenting arguments on her behalf in the person of Mr. Sirajur Rahman, Mr. A. K. Brohi, who appears for the respondent-plaintiff, has raised a preliminary objection in this case attacking the validity of the certificate of appeal granted to the appellant under section 110 of the Code of Civil Procedure. The learned counsel points out that the Bench that decided to issue the certificate was of the opinion that two questions of law of some general import ance required consideration in the case, namely, (1) whether the suit was barred by limitation, and (2) whether the plaintiff was estopped by his conduct from suing. The learned Judges also mentioned that the question of benami, raised in the suit, was one of difficulty in the circumstances of this case and that the property involved ran into lacs of rupees. Mr. Brohi has invited our attention to the fact that before the learned Single Judge, in the High Court, the two issues relating to the plea of estoppel and the bar of limitation were not at all pressed on behalf of the defendant and that these two issues were, apparently not at all agitated before the Letters Patent Bench, as the judgment of that Bench makes no reference to them. Mr. Brohi, therefore, suggests that the certificate was not validly granted as the, only two points of law on which the learned Judges relied for the certificate, were such as had not even been pressed in the Court below on behalf of the appellant. In reply, the learned counsel for the appellant, Mr. Sirajur Rahman, has argued that even if the point of limitation, arising on the admitted facts of the case, has not been taken by any of the parties, it is incumbent on the Court to apply its mind to it, suo moto, and to give effect to it, if the circumstances so warrant. It was also attempted to be maintained on behalf of the appellant that the suit having been decided on the original side of the High Court on the 3rd June 1960, and the property involved being valued at lakhs of rupees, an appeal lay as of right to this Court under Article 158 of the 1956 Constitution. It is urged that even though the Letters Patent Bench may have delivered its judgment on the 17th February 1964, after the present Constitu tion of 1962 had been promulgated, the appellant had acquired a vested right of appeal to this Court under the old Constitution? which had not been taken away. Mr. Brohi on the contrary, raised the contention that Article 58 of the present Constitution restricts the right of appeal to this Court to a considerable extent and that no appeal, as of right, lies from the judgment of the Letters Patent Bench in the circumstances of this case because of the provisions of this Article. If this Article applies with its full rigour, it is clear that an appeal could be brought to this Court from the pugned order only by special leave. While disposing of Civil Petitions No. 74 of 1961 and Nos. 12, 13, 38, 91, 92, 93 and 99 of 1962, on the 22nd October 1962, it was held by this Court that leave to appeal to the.. Supreme Court, against orders of the High Court passed before the commencing date of the present Constitution, would be governed by the late Constitution of 1956, despite the lame abrogation. It was pointed out therein that by the Laws (Continuance in Force) Order, 1958, the provisions of Article 160 of the 1956 Constitution were continued and could be invoked, in such a case, as under Article 250 of the new Constitution the old Constitution must be deemed to have been repealed and all rights accrued, prior to that repeal, must be held to be available to the litigants entitled thereto, under the old Constitution. Reference in that case was made to The Colonial Sugar Refining Co. Ltd. v. Irving (i) in which the Judicial Committee of the Privy Council, on an appeal filed from Australia, held that the right of appeal, vesting in a litigant, could not be taken away except by retrospective enact ment, as such right was not a mere matter of procedure but of substantive right. That right, according to their Lordships, accrued to the plaintiff when he brought his suit and would continue at all stages of the litigation, in spite of the repeal of the provision which created the right. Mr. Brohi bas relied on observations made by this Court in that case to the effect that it was not necessary to go to the extent of saying that a right of appeal, which exists at the time when a suit is filed, will enure for the benefit of a party at all subsequent stages. He has, therefore, argued that this Court has not fully accepted the principle laid down by Privy Council in that case. But in Sutlej Cotton Mills Ltd. v. Industrial Court (2) this Court had occasion to refer to that Privy Council decision again and the principle laid down therein was approved. The objection raised by Mr. Brohi, therefore, that the right of appeal was taken away by the mere intervention of the Letters Patent Bench judgment which was delivered after the enforcement of the present Constitution, does not appear to have a solid foundation. Mr. Brohi further attempted to argue that only the final order of the High Court was appealable under the relevant provisions of the 1956 Constitution and that the judgment of the learned Single Judge having merged in that of the Letters Patent Bench, it was the judgment of that Bench which could give rise to an appeal. Such an appeal bad to fall within the four corners of Article 158 of that Constitution. Article 158 of theli Constitution of 1956 permits an appeal to the Supreme Court (1) Y L R 1905 A C 369 (2) P L D 1956 S C (Pak.) 472 from "any, judgment, decree or fi 'ai order of the High Court.''' The qualifying word "final" appears before the word "feeder" and not before "judgment" or "decree". Apart from the fact, therefore, that a decision by a Letters Patent Bench relates merely to an inter-Court appeal, there seems to be reason for thinking that the judgment of the learned Single Judge, as such, would have been open to appeal under the Constitution. However, we feel that the circumstances of the case are such that In order to resolve any doubts that may arise in this behalf, we are prepared to grant special leave to appeal to the appellant and we order accordingly. Coming to the merits of the case, it was contended by Mr. Sirajur Rahman, on behalf of the appellant, that according to the evidence on record, the respondent had met the appellant who was a public woman at the time, in 1921 and began paying her Rs. 500 per mensem, He did not marry her till the year 1923. From this the learned counsel wanted to infer that a certain ' amount of money was available to the appellant, which she could have put into the business, claimed to be joint by her with the plaintiff-respondent. That was apparently a family business of the respondent originally. The business was taken over by the plaintiff-respondent after his father's death, in 1941. On the 29th April 1942, a partnership deed was executed between the plaintiff and the appellant in which it was recited that the appellant had contributed Rs. 3,000, in cash, out of a total capital of Rs, 4,000 for the business and had, therefore, become its partner to the extent of 3/4th share, The plaintiff-respondent bad contributed the remaining one thousand rupees and since the alone was to manage the business, he was to get Rs. 150 as salarly, per mensern, for the duties of management, in addition to 1/4th profit. The learned counsel, therefore, suggested that the. Courts below were not right in holding that the appellant was merely a benamidar of the plaintiff-respondent in this basiness. The position adopted by the plaintiff in his plaint was that this was a fictitious partnership, entered into, "to avoid the incidence of taxation and on grounds of expediency." He denied that the appellant had contributed any money to the business. The partnership was pot accepted by the Income-tax authorities for the assessment year 1945.46 and the plaintiff-respondent was assessed as an individual for this business by order dated the 6th May 1946. It seems that on that occasion, the plaintiff had himself asked to be assessed as an individual, in the face of the relevant provisions of the Income-tax Act, the other partner being his wife, But the real question was whether the plaintiff had at all contributed any money as partner, to the business. On this paw lite learned Single Judge as well as the Letters Patent Bench have found that no such contribution was made by the appellant. The sum of Rs. 3 000 mentioned in the partnership deed as tllo contribution of the appellant, was said to have been paid to two creditors, Malik Swaim- Ahmed and Hingorani. Malik Sardar it Untied nen aopeeted as witness in the case and denied that he had been paid any thing, thugorani, the other alleged creditor, was probably an evacuee at the time of the proceedings in the Court below and, therefore, was not available as a witness,, Thel question being one of fact and both the learned Single Judge and! the Letters Patent Bench having concurred in holding that no contribution was made by the appellant to the partnership business, it is not open to the appellant now to convass that finding in the absence of any special circumstances justifying that course. The normal rule is that with such a concurrent finding this Court would not normally interfere, even if another view of the evidence was possible. This being the position, no question of estoppel by conduct on the part of the plaintiff-respondent, arises for consideration. 'With regard to the acquisition of other properties too, the position is the same as has been found to obtain in respect of the alleged partnership business and there is a concurrent finding that the properties decreed, belong to the plaintiff.respondent alone. it was probably on account of being confronted with this situation that the plea of estoppel was not pressed in the Court below. In any event there are no facts brought out on which an' argument of estoppel could be built up. It has finally to be considered whether the suit brought by the respondent was barred by time or not. In this context the learned counsel for the appellant has referred to the evidence given by the plaintiff as his own witness, at page 55 of the record, in which Incadmission was made that the dispute between the parties started in 1949, The second dispute took place in 1950 and thereafter there 'used to be quarrels every now and then. In the plaint brought on the 8th May 1956, it was alleged that the cause of action arose to the plaintiff in or about April 1950, when the defendant eventually set up her right to the property in dispute. This was contested to be a false recital, on behalf of the appellant. It is contended that the defendantsappellantaves always claiming her rights and exercising them as owner. However, the learned counsel was forced to concede that ma the immoaable properties involved in the suit, the limitation for a suit was 12 years, if it was found that the name of the defendantsappeilant had been brought in merely as a benamidar for the plaintiff, The learned counsel, therefore, confined his argument to the movable property and tried to maintain that at least in respect of the movables, namely, the car arid furniture, etc,, in Shohrat Villa, the suit had been brought out of time. But the'plaintiff had claimed that there was a settlement between the parties in 1953 so that the previous difficulties were smoothed over. The suit having been brought in 1956, was also within time in respect of the movables as a three years' limitation was available. The learned counsel for the appellant drew attention to Exh. 31, a letter dated the 1st May 1950, written by the plaintiff-respondent to the appellant in which he seems to have confessed to, having made mistakes and to have apologised to the appellant for his past misdeeds. The effect of this letter has been, however, assessed in the Court below and the concurrent findings of the learned Single Judge and of the Letters Patent Bench on that point are against the appellant. Moreover, if the furniture and the car that were maintained as Shohrat Villa, were to go with that property, there would be no question of limitation arising, even in respect of these ovable the face of the finding that Shohrat Villa stood in the name of the defendants appellant, merely as a benamidar. Her plea that she supplied the money for purchase and for its furnishings has been examined in the Court below and rejected as without substance. This being a finding of fact endorsed by the judgment of the Letters Patent Bench, we are unable to interfere with it at this stage. No other point arises for consideration in this appeal which fails and is hereby dismissed. In the circumstances, however, we make no order al to costs; Appeal dismissed