1999 PLP 541 (CLC)

7. The suit was resisted in the Court below on the ground that it did not disclose any cause of action nor the plaintiffs had come to the Court with clean hands; that the value of the subject‑matter was shown as Rs.50,00,000, but no court-fee was allegedly affixed and as such the plaint was liable to be rejected. The averments made in the plaint were denied except to the extent that the plaintiffs were the owners of the property in dispute. However, allegedly they had ceased to be the owners of the property after the said property was declared as "enemy property" and the possession of the same was taken over by the Custodian of "Enemy Property". The boundary given in the plaint in respect of the property in question was admitted. It was also admitted that the property in question was in possession of Civil Defence Academy at the time of its taking over by the Custodian of Enemy Property. That after the abolition of the West Pakistan Enemy Property Management Board, Lahore, all the Enemy property vested in the Deputy Custodian of Enemy Property, Islamabad with effect from 1‑10‑1973. It was also contended that the sale‑deed, dated 25‑10‑1976 was legally executed and registered. The pendency of the execution proceedings were admitted in which the Government had applied for becoming a party, but that application was dismissed by the learned executing Court. Finally it was contended that the suit of the plaintiffs had no merit and was rightly dismissed. A similar position was taken by defendants/respondents Nos‑3 and 4 in their written statements with the emphasis that the property now vested in the Government of Punjab after its sale by the Federal Government through the Deputy Custodian Enemy Property i.e defendant No.2. The tenancy of the Civil Defence Academy under plaintiffs was denied as the disputed property vested in defendants Nos.3 and 4.

8. During the proceedings in Court below, the deficiency of court‑fee was made up, hence the question regarding the proper court‑fee was settled.

9. The plaintiffs examined their Attorney and other oral evidence apart from documentary evidence to prove their case. The defendants/respondents also examined their oral as well as documentary evidence in support of their claim.

10. The learned Civil Judge vide the impugned judgment, however, dismissed the suit on the ground that the property in question was treated as "enemy property" through originally it was owned by the plaintiffs. Besides that it was held that the suit was hopelessly barred by time because the property was taken over in 1974 whereas the suit was instituted somewhere in 1994, without any convincing justification for its delay. Similarly the sale‑deed, dated 25‑10‑1976 in favour of defendant No.3 i.e. Government of Punjab was also considered to have been executed rightly.

11. During the arguments, the learned counsel from both sides based their contentions on the points annotated above.

12. We have given our anxious consideration to the controversial points and have also gone through the record of the learned Trial Court with the able assistance of the learned counsel from both sides. One thing is clear that before to the alleged declaration of the disputed property as "enemy property" it was the ownership of the plaintiffs. This fact has not even been denied by the defendants and is supported by the documents placed on record such as assessment of the rating area of the Lahore Municipal Corporation for the year 1952‑53 Exh.P.3, which showed that both the plaintiffs were recorded as owners of the property in question. Yet in another assessment i.e. Exh.P.4 for the year 1971‑72 i.e. immediately before the impugned notification, the plaintiffs were shown as owners (non‑Evacuee) in the column of ownership. The Civil Defence Academy and Aur Parkeel were shown to be in possession as tenants on a rent of Rs.900 and Rs.100 respectively. Similarly the entry in respect of the assessment for the year 1962‑63 Exh.P.5 showed that the plaintiffs were non‑Evacuee owners and were in self‑occupation. The extracts from the Revenue Record i.e. Exh.P.6 would support the ownership of the plaintiffs, in the disputed property. The passport Exh.P.8 shows that the plaintiff W.Gopal Das was a Pakistani National and had finally left for Uganda (Kenya) under a visa issued by the aforesaid country. Earlier to that he had visited India on an Indian visa. "However, entries at pages 14 and 15 of the passport will show that he left again for Uganda Protectorate in May, 1968. This makes it amply clear that the plaintiffs were Pakistani Nationals and possessed Pakistani Passport and lived in Pakistan before they had gone to Uganda (Kenya). The right of a Pakistani citizen to be dealt with in accordance with law in respect of his life, liberty, body, reputation or property is guaranteed under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. This recognises the supremacy of law for providing the aforesaid guarantee to every citizen till he is disqualified in accordance with law. Since it is a Constitutional guarantee, therefore; any law, which restricts or invades such right should be strictly construed. The mere fact that a citizen is out of the country would not deprive him of his Fundamental Rights guaranteed to him under the supreme law of the land. Any action, contrary to the guarantee provided under Article (supra) can be challenged for appropriate relief. Likewise Article 24 of the Constitution ensures that no person shall be compulsorily deprived of his property save in accordance with law. Although exceptions are provided under the Article to the aforesaid right, but those are to be construed strictly wherever an action is intended to deprive a citizen of his property. The protection of proprietary rights in a property is a fundamental right and cannot be allowed to be taken away easily at whims of the Government functionaries. Likewise every citizen of Pakistan has a right to be treated equally and to have equal protection of law under Article 25 of the Constitution. .

13. In the background of the aforesaid Constitutional guarantees, it is to be seen whether or not the plaintiffs have been deprived of their property, in accordance with law. In this respect both the parties have relied upon SRO1142(I)/74, dated 26‑8‑1974, photo copy of which appears as Annexure "E" at page 117 of the paper book. It reads as under:‑‑ "In exercise of the powers conferred by sub‑rule (I‑A) of Rule 182 of the Defence of Pakistan Rules, as continued in force by Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969 (I of 1969), the Federal Government is pleased to direct that all those enemy properties which stood vested in the Vice‑Chairman, West Pakistan, Enemy Property Management Board, Lahore on the 30th September, 1973, shall vest and shall be deemed to have so vested in the Deputy Custodian of Enemy Property for Pakistan, Islamabad on the 1st October, 1973. " A bare perusal of the aforesaid S.R.O. will show that it was an omnibus type of order wherein the detail of enemy property, which vested in the Enemy Property Management Board, Lahore and further vested in the Deputy Custodian of Enemy Property, Islamabad has not been given. Least to say that the property in question was mentioned therein. It is, thus, obvious that the defendants/ respondents have failed to place on record any notification published in the Official Gazette whereby the property in question was treated as "enemy property" and vested in the Custodian of Enemy Property for Pakistan. The S.R.O. aforesaid has, therefore, no legal sanctity under any law whereby the plaintiffs were deprived of their right to hold property. It is also an admitted fact that no show‑cause notice was issued nor the plaintiffs were heard before their property was taken over. On the contrary, it appears that while the plaintiff were out of the country, the defendants took over their property without invoking any valid provision of law' to deprive the petitioners of their property. Even the oral evidence examined at the trial will show that there was no notification with the Government whereby it could be shown that the property in question was ever declared as enemy property or the plaintiffs were declared as "Enemy" or "Enemy Subject" under the relevant law i.e. Defence of Pakistan Ordinance, 1971 read with Defence of Pakistan Rules, 1971. The S.R.O. aforementioned is totally silent about the property in question nor it has given the details of any other property which vested in the Deputy Custodian, nor plaintiffs had any occasion to show cause against the wrongful application of the provisions contained in Defence of Pakistan Ordinance, 1971 or Defence of Pakistan Rules, 1971. As such the defendants/respondents acted in flagrant violation of the universally known principle of natural justice namely audi alterm partem, which has now been fully entrenched in the judicial system of Pakistan. A reference to PLD 1970 Lah. 6 may be made with advantage. It is observed in the cited judgment that‑‑

"There are innumerable pronouncements by the superior Courts, Particularly by the Supreme Court, laying it down as a rule that nobody can be made to suffer any harm to his rights including those relating to property, person or reputation without giving him sufficient opportunity of showing cause. The approach of Courts, in application of this principle to individual cases, has been pragmatic. No technical consideration is allowed to bar the application of the abovementioned principle. Barring a few exceptions, e.g. exercise of purely police power in preventive measures, this principle applies to all situations. Ordinarily, therefore, when a statute does not expressly bar the application of this principle, the Courts shall presume that its application is included in the provisions of that statute. It is a necessary corollary of the acceptance of this principle that the procedural laws will have to be interpreted in such a way as to avoid conflict with this principle. This being a basic reality, all considerations, incidentally and consequentially related to the above principle, will have to be brought into operation in order to see that the said principle is fully satisfied. "

14. Now a question would arise if defendants Nos. l and 2/respondents Nos. l and 2 c old transfer the property in question to defendants/respondents Nos.3 and

4. Since the property did not vest in the defendants/respondents Nos. l and 2, therefore, they could not pass a better title than they possessed in it. Apparently they did not possess any title in the aforesaid property, therefore, they could not enter into any sale‑deed with any person i.e. defendants/respondents Nos.3 and 4.

15. We have gone through the documentary evidence as well as oral evidence examined at the trial in respect of the sale transaction. The correspondence on the subject appears on the original file of the Trial Court as Exh.D.l, Exh.D.2, Exh.D.3, Exh.D.4, Exh.D.5 and Exh.D.6. Although it was proposed that the property in question shall be sold to the Province of Punjab for a consideration of Rs.3,80,000 for which the aforesaid amount was allocated by order of the Governor of Punjab, but the sale did not mature, nor any sale‑deed was ever registered. A photo copy of draft sale‑deed, dated 25‑10‑1976 appears in the file as Annexure "F" page

32. It has not been got exhibited, but its perusal shows that it being merely a draft was never got registered so as to gain finality. This fact has been admitted even by the defendants during the hearing of this appeal in reply to an application moved by the apI31icants (C.M. No.2/C of 1996) whereby they had brought on record Letter No.3(31)CEP‑I/68/Vol‑II, dated 6‑11‑1994 issued by Jamil‑ud‑Din Qureshi, Deputy Custodian, Enemy Property for Pakistan, Government of Pakistan, Ministry of Communication. Islamabad, and was addressed to Mr. W. Gopal Das, son of Pretum Das, West Land, Brook Side, Groova No.8 Nairobi, Kenya. This letter was admitted as correct, by the learned counsel for the defendants Nos. l and 2 and was brought on record as mark "A" without airy objection from any s}de. It makes the whole situation clear. It says as follows:‑‑-- "It is intimated (to) you that I examined the record of said property and documents provided by you, I hereby declare/clarified (clarify) that Property No.S‑48‑R‑11, known as 22 Aikman Road, Lahore does not fall in Notification No.SRO 1142(1)/74, dated 26‑8‑1974. Moreover, the Government of Pakistan was (had) sold the property to Government of Punjab in consideration (of) Rs.3,80,000 such sale transaction could not mature. Hence sale‑deed was not registered by the Deputy Custodian in favour of Government of Punjab. " Note. (the words in brackets were added by us to eliminate clerical mistakes from the original text to make it meaningful).

16. A perusal of the contentions of the aforesaid letter as reproduced above will show that it settled the controversy between the parties that the property in question was never notified to be the enemy property vide S.R.O. in dispute. Likewise, though its sale proceedings, were initiated, and a draft sale‑deed was prepared, but it never matured nor it was admittedly ever got registered by the defendants/respondents Nos. l and 2 in favour of defendants/respondents Nos.3 and

4. This is also in line with the oral evidence examined at the trial as none of the witnesses examined by the defendants/respondents could clearly show that the property in question was validly acquired under the disputed S.R.O. or that the sale‑deed had ever become final.

17. In the last an objection was raised that the suit was not properly instituted or‑that the same was time‑barred. In this regard, it was alleged that General Power of Attorney was given by the plaintiffs to Muhammad Ramzan, who further on constituted Special Attorney namely Abdul Ghafoor vide Exh.P.I., who instituted the present suit. It was contended that since Haji Muhammad Ramzan was not competent to constitute Special Attorney, therefore, the suit was not properly instituted. In this respect perusal of Exh.P.2 i.e. General Power of Attorney which was attested by the High Commission of Pakistan in Nairobi and later on registered before the Sub‑Registrar, Lahore showed that the executants i.e. the plaintiffs had delegated amongst others all powers to their General Attorney Muhammad Ramzan in the following words:‑‑

"And we hereby agree all acts and things lawful done by us said General Attorney Muhammad Ramzan shall be constructed as acts, deeds and things done by us we undertake to rectify and confirm all such things done on this 27th April, 1993. " The aforequoted clause of the General Power of Attorney gives legal cover to all type of the acts, deeds and things done by the aforesaid Attorney on behalf of the executants to which they undertook to rectify and confirm. In that background, the Special Power of Attorney executed by the General Attorney in favour of Abdul Ghafoor to pursue this matter would be well within the ambit of the deed of General Power of Attorney and, therefore, all the acts done by the Special Attorney would be considered to be the acts of the original owners. The suit having been instituted by the duly authorised Special Attorney would, therefore, be within the ambit of law and hence maintainable.

18. The question of limitation would not come in the way of plaintiffs because the very action on the part of the defendants to deprive the plaintiffs of their Constitutional right to hold their property was not only bad in the eyes of law, but could be considered as a non‑entity qua the rights of the plaintiffs. Hence there was continuous breach of fundamental right which provided continuous cause of action and as such the suit shall not be considered as time barred. In this context reference may be made to Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1968 SC (Pak.) 104, Hussain Bakhsh and others v. Settlement Commissioner and another reported as PLD 1969 Lah. 1039 and Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others reported as 1987 SCMR 1543. . It was held in the rulings referred above that if an order is without jurisdiction and void, then it need not be formally set aside and no question would, therefore, arise to hold that the matter cannot be considered on merits on account of any bar of limitation; that where the order allotting the land in question in favour of the petitioners was void, ab initio, being without jurisdiction, the question of limitation would not arise, hence if on the basis of a void order subsequent orders have been passed either by same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, it must unless some statute or principle of law recognizing as legal, the changed position of parties is in operation, fall to the ground because such orders have as little legal foundation as void order on which they are founded. As such a void order will have no value whatever and is simply to be ignored and consequently no question of limitation will arise against such an order.

18. Keeping in view the above enunciation of law and since the notification in question and subsequent sale on its basis was illegal and without jurisdiction, therefore, the entire series of act on the part of respondents/defendants will be void, ab initio and as such no question of limitation will arise for getting those orders set aside at any point of time.

19. In view of our above discussion, we come to an irresistible conclusion that the plaintiffs/appellant have proved their case that they are the owners of the property in question and that they were illegally deprived of the same as such SRO 1142(1)/74, dated 26‑8‑1974 and the sale‑deed, dated 25‑10‑1976 are held to be of no legal effect. The appeal is accordingly accepted and the judgment and decree, dated 13‑9‑1995 passed by the learned Civil Judge 1st Class, Lahore is set aside and the suit of the plaintiffs is decreed against the defendants/respondents. The parties are, however, left to bear their own costs throughout. H.B.T./M‑880/L Appeal accepted