P L D 1989 Karachi 71 (PLP)

Rehanul Hassan Farooqui for Defendants. Date of hearing: 13th November, 1988. These are two applications and out of then; C.M.A. 7256/88 which seeks grant of an injunction is, for the present, deferred. Through C.M.A. 7375/8.8, an application under section 151, C.P.C., the plaintiff seeks the cross-examination of S.Fazle Hassan, Assistant Director, Institute of Business Administration, Karachi (referred herein as I-B.A.), on the grounds detailed in the affidavit annexed to such application. Another prayer in this application is for seeking the production of an alleged Resolution of the Board of I.B.A. regarding distribution, amongst members of the faculty, of proceeds in relation to Admissions and other programmes. The same application is also directed to secure production of paid bills regarding distribution of such proceeds from Admission tests as from July, 1977 upto date together with a list of members of the faculty who participated in the various phases of tests conducted by the I.B.A. on 4-11-1988. The application under section 151, C.P. C. is resisted, inter alia, on the ground that as its express object was relatable to the Admission tests scheduled for 4-11-1988 and as this application was filed on 7-11-1988, it was still born, is infructuous, and therefore, should be dismissed as such. However, as I find that this application is moved in the context of the Application under Order XXXIX, Rules 1 & 2, C.P.C. (C.M.A. 7256/88 deferred as above) and as the latter application deals with various tests and programmes of a recurring nature, it cannot be dismissed on the technical grounds pleaded to resist it. The background of this controversy, as reflected in the plaint is that the plaintiff alleges discriminatory treatment at the hands of the defendant No.2. the present incumbent of the Office of Director, I . B..4. , whose appointment, he alleges to have questioned as such Director. Plaintiff also alleges that he also questioned the constitution of the Board of Governors of I.B.A., per Constitutional Petition No. D-1646 of 1982 in this Court, and that such petition is pending. As a result of these controversies plaintiff alleges discrimination and financial losses in relation to which he states to have filed earlier Suits bearing No.2491/85 in the Court of the learned II Senior Civil Judge, Karachi (East) and No.363 198 in this Court both of which suits are said to be pending. The present suit is for recovery of Rs.4,13,503 on account of alleged financial losses to the plaintiff on account of alleged denial of remunerative ,work to the plaintiff' and one such work is said to be participation in the Admission tests held by the I.B.A. from time to time. Plaintiff also seeks Declaration of his Rights and a Permanent injunction vis-a-vis interference of such Rights. It will be premature to offer any comment about the allegations of the plaintiff at this stage except perhaps that these controversies, for what they may be worth, should be resolved quickly. Nearly a month, after the filing of this suit the plaintiff filed the above-referred application for Injunction (C.M.A. 7256/88) seeking restraint against the defendants from discriminating against him and depriving her of participation in the Admission programmes to be conducted by I.B.A. In support it was urged that participation in Admission tests by the members of the faculty was a right as it carried extra remuneration and that it was long ago decided by I.B.A that 80% of the revenue secured from such tests would he ;distribution amongst the participant teachers but that the plaintiff had been ignored in this behalf. In the plaint the plaintiff, however, asserts that on 18-4-1974 a Resolution was passed by the Board of Governors of I.B.A. to the affect that the faculty members organizing management development programmes would be entitled to 80$ of the gross revenue generated by such programmes. It is alleged that the plaintiff and some others participated in such programmes in 1978 and submitted their bills which, however, were not paid and instead another resolution was passed in July, 1978 whereby the share of teachers in sue gross receipts was materially reduced and, subsequently, by yet another Resolution of the Board of Governors the July, 1978 Resolution was made retrospectively applicable thereby hitting the plaintiff and others. It is thus uncertain as to what is the precise effect of the Resolution of I.B.A., if any, and whether such Resolution still hold<, the field, retroactive or not. In response to the application for Injunction Prof. Syed Fazl Hasan, Assistant Director, I.B.A. filed counter-affidavit and ha: pointed out that the plaintiff has failed to establish any entitlement or vested right to participate in any programme of the I.B.A. a; referred. The allegations of discrimination have been questioned a; being general and lacking in adequate particulars. It is maintained that the various functions of teaching, setting examination papers checking answer books, assessing marks in examinations, holding viva voce tests for admission and other examinations, are all matters it which no member of the staff has any legal or contractual entitlement. Duties are assigned taking into consideration several factors by the various authorities of the Institute responsible to sponsor the programmes. Such jobs are assigned not by an individual but by r panel or committee formed from time to time. It is further maintained that the plaintiff has failed to establish any entitlement for "all the members of the staff" to participate in any particular programme. In conclusion, it is denied that the plaintiff has been victimised despite the plaintiff, allegedly, maligning the deponent himself. As adverted to above the said counter-affidavit gave rise to plaintiff seeking the cross-examination of the deponent and other reliefs through C.M.A. 7375/88, which is the subject-matter of this order. In support of the various prayers in this application, as reproduced in the earlier part of this order, the plaintiff refers to and seeks the production of Resolution of the Board of Governors whereunder 80% of the proceeds generated by holding Admission tests are, allegedly, allocable amongst the faculty members whereas the plaintiff himself has narrated about the fabulous nature of this resolution in his own plaint, as reflected above. He alleges vagueness in the counter-affidavit regarding qualifications for participations in the programmes in question but there is no vagueness as it is expressly stated in the counter-affidavit that such assignment of duties takes place on the basis of "Status, qualifications, experience etc. in the relevant field". Plaintiff further says that the deponent does not disclose the names of those 'who were allowed to participate in the said programmes of if any outsiders were also invited. But then the plaintiff has to establish his own right and, in any case, the defendants in their counter-affidavit to the instant application claim a discretionary power in these matters which question of course, shall have to await adjudication at the time of final disposal of this suit. Lastly, the plaintiff seeks cross-examination on the ground that the same is necessary to bring on record relevant documents essential for the determination of the controversy involved. If this, however, be the object no cross-examination for such purpose appears to be permissible in law. On hearing the learned Counsel on this application I find that no case for cross-examination of Deponent-- S.Fazle Hassan, Assistant Director, I.B.A: is made out. Cross-examination of a Deponent under Order XIX, Rule 2, as per practice in the Courts of Pakistan, can be ordered if the Deponent has been ambiguous in his deposition or has indulged in wilful evasions of relevant questions or has made A contradictory assertions in his deposition. In appropriate cases where permission to cross-examine a deponent may give rise to delay the Court may resolve the difficulty by ordering submission of an additional affidavit of such deponent.. Learned Counsel for the Plaintiff in this context has relied on Barlas Bros. (Karachi) & Co. v. Yangtse PLD 1959 Kar. 423 and Ataullah Malik v. Custodian Evacuee Property PLD 1964 S C

236. In the first of these cases which pertained to an Award matter Kaikaus & Wahiduddin J J. held that Order XIX, Rules 1 and 2 contained distinct provisions regarding evidence through affidavits and that the power under Rule 2 thereof being discretionary would not be exercisable unless it was to advance the cause of justice and was not calculated to cause delay. In the second case, from the Supreme Court jurisdiction, right to cross-examine was considered in relation to a main application in the hierarchy under the Custodian and an obligation to submit to cross-examination was spelled out in such proceedings. None of these cases pertain exclusively to the disposal of matters through affidavits submitted at an interlocutory level which, obviously. is different from the requirements in relation to regular disposal of cases which are contemplated by Rule 1 of Order XIX. ' Mr.Rehanul Hassan Farooqui on the other hand has cited WId.Ismail Ali Charan v. Pakpor Ceramics Ltd. P L D 1973 Kar. 491 in which Dorab Patel, J., as he then was, explaining the case of Barlas Bros. ibid, held that it was only in exceptional circumstances that cross-examination on interlocutory applications is permitted. In this view of the matter, no case for cross-examination of Deponent s. Fazle Hassan, Assistant Director, I.B.A. is made out and he I cannot, at this stage of the proceedings, be permitted to be cross examined. However, in so far as the alleged Resolution of the Board of I . B . A . regarding distribution of proceeds is concerned, the same pertains to a question which is pivotal to the main controversy in the Suit and if such Resolution exists, it would be the basic document on which the points in controversy in this case are ultimately to come up for consideration. As it would be the right of the plaintiff to seek the production of such document, if any, at the time when this case comes up for regular hearing, I cannot see as to why a request for production of the same, if any such Resolution exists, can be denied to him at this stage particularly when the matter of interim relief sought by him through C.M.A. 7256/88, would largely hinge on the production of such document. A perusal of the counter-affidavit, in question does not bring out a categorical denial of the existence of such a document though it may be that such document does not in fact exist. But if such Resolution does subsist even though in some form different than that alleged, the relevancy of such document, even though remote, cannot be denied. This being the case, I would, in exercise of powers under section 151, C.P.C. allow this application to the extent that defendants shall produce any such Resolution on the subject of distribution of proceeds relevant to Admissions tests amongst the members of the staff of I.B.A. This they will do, of course, if such a document exists and such production shall take place even though its form may be different from that alleged by the plaintiff or even if more resolutions than one subsist on the subject in - which later case all such relevant resolutions shall be produced. This is to be done within 15 days from today. As regards the request of plaintiff for seeking production of the paid bills for the period July, 1977 upto date, I think that such a request is premature as a question of this kind can only arise, if at all., when this case comes up for regular hearing. Accordingly in so far as this request is concerned while it is rejected at this stage, it will be open for the plaintiff to repeat it at the time of regular hearing at which stage it will be dealt with on its own merits. Regarding the last prayer in the application namely the disclosure of the names of persons who participated in various phases of tests conducted by I . B. A . on 4-11-1988, I am tentatively of the view that such a request would be relevant only if the detailed qualifications and entitlements of these persons are taken up for consideration which would be, if at ell, at the regular hearing of this case. This relief also is denied at this stage subject to such rights of the plaintiff as he may have at the regular hearing. In these terms C.M.A. 7375/88 is disposed of. The case shall now be put up for hearing of C.M.A. 7256/88 on a date to be fixed by office after the expiry of a period of 15 days upto which time the Defendants have been allowed to file the Resolution(s) as above-referred. A. A. /A-437/K Order accordingly.