2019 PLP 943 (YLR)

SYED ARSHAD ALI, J.

The petitioner, Hamayun Khan, through the instant petition has challenged the order dated 24.2.2017 of learned Additional District Judge-III, Abbottabad and alleges that the learned Additional District Judge, while deciding revision petition filed by Raja Muhammad Ayaz, respondent No.1 against the order dated 04.2.2017 of learned Executing Court, has not allowed the petitioner to argue and assist the Court and, resultantly, the revision petition against the same order of execution was illegally accepted.

2. Brief, but essential, facts of the case are that Raja Muhammad Ayaz, respondent No.1 being owner of land measuring 04 kanals 11 marlas situated in Mauza Jhangi Tehsil and District Abbottabad ("Property") through registered lease deed 16.6.2001, demised the Property to Messrs Shell Pakistan Limited for a period of 20 years, for the purpose of establishing a petrol pump. Accordingly, Messrs Shell Pakistan Limited has established a petrol pump which has since been commonly known as Messrs Madina Filling Station. Through another agreement (Retail Franchise Fee Agreement) Messrs Shell Pakistan Limited appointed Raja Muhammad Ayaz, respondent No.1, as the authorized retailer on the terms and conditions mentioned in the said agreement. Messrs Shell Pakistan Limited through letter dated 12.5.2015 terminated Retail Franchise Fee Agreement executed with Raja Muhammad Ayaz, respondent No.

1. Subsequently, the petitioner Hamayun Khan was appointed as retailer for Messrs Madina Filling Station vide agreement deed dated 03.6.2015.

3. It is further evident from the record that Raja Muhammad Ayaz, respondent No.1, through an agreement had handed over possession of the petrol pump to Syed Murtaza Hussain Shah on the terms and conditions mentioned in the aforesaid agreement. Raja Muhammad Ayaz had filed an ejectment petition before Rent Controller Cantonment Board, Abbottabad against Syed Murtaza Hussain Shah. The learned Rent Controller vide order dated 11.3.2015 passed ejectment order against Syed Murtaza Hussain Shah. Accordingly, Raja Muhammad Ayaz, respondent No.1, filed an application for execution before the Executing Court. Syed Murtaza Hussain Shah challenged the aforesaid order of ejectment before this Court through F.A.O.No.10-A of 2015, which was dismissed by this Court vide order dated 29.5.2015. Through the said order, this court directed the appellant Syed Murtaza Hussain Shah to vacate the premises before 11.6.2015. On 01.7.2015 Messrs Shell Pakistan Limited challenged the order of this Court dated 29.5.2015 through a petition under section 12(2) of the Civil Procedure Code, 1908, ("C.P.C.") which was later withdrawn on 25.3.2016. The petitioner as well as Messrs Shell Pakistan Limited filed their separate objection petitions under Order XXI, Rule 99 of the C.P.C., before the Executing Court stating therein the afore-said events and claiming to be in possession of the Property on basis of the afore-said lease deed and also apprised the Court of termination of franchise agreement by Messrs Shell Pakistan Limited with Raja Muhammad Ayaz, respondent No.1. They further prayed for dismissal of the execution petition. Raja Muhammad Ayaz, respondent No.1, contested both the applications by filing his replies. The learned Executing Court, after hearing both the parties on preliminary objections raised by respondent No.1 regarding the maintainability of objection petitions, overruled the preliminary objections of the respondent No 1, Raja Muhammad Ayaz vide order dated 14.6.2016. The learned Executing Court also framed issues and allowed the parties to produce their respective evidence.

4. Raja Muhammad Ayaz, respondent No.1, filed another application for dismissal of the objection petition filed by Messrs Shell Pakistan Limited on the ground that the same has not been competently filed. The learned Executing Court on 27.7.2016 sustained the objection of respondent No.1, Raja Muhammad Ayaz, and dismissed the objection petition filed by Messrs Shell Pakistan Limited being incompetently filed. Messrs Shell Pakistan Limited challenged the said order through Civil Appeal 48/13 of 2016 before learned District Judge, Abbottabad, which was assigned to learned Additional District Judge-III, Abbottabad for disposal. The learned Additional District Judge accepted the appeal on 16.1.2017 and remanded the case back to the Executive Court with the direction to proceed with the same in accordance with law and decide the same after recording evidence. At the end of his order, learned Additional District Judge-III, Abbottabad passed certain observations. Since such observations have led to the present controversy, therefore, the same are needed to be reproduced below: "Needless to mention that my this judgment should not be considered in a manner so as to impose any restriction on the jurisdiction of executing court to proceed with the execution proceedings as both can run simultaneously and possession of the decreed pump can be handed over to respondent No.1 subject to the decision of objection petition. Original file be send back to learned trial Court forthwith. Parties are directed to appear before the learned trial court on 19.1.17. No order as to cost. File of this court be consigned to the record room after necessary completion."

5. These observations prompted Raja Muhammad Ayaz, respondent No.1, to file an application before the Executing Court seeking the possession of the Property. The learned counsel for Raja Muhammad Ayaz argued before Executing Court that in view of aforesaid observations the Executing Court should pass order for delivery of possession. The learned Executing Court vide order dated 04.2.2017 dismissed the same being premature. Aggrieved from the aforesaid order Raja Muhammad Ayaz, respondent No.1, filed revision petition before learned District Judge, Abbottabad, who assigned the same to learned Additional District Judge-III, Abbottabad for disposal. Despite the fact that counsel for respondents Messrs Shell Pakistan Limited and Humayun Khan, the present petitioner appeared before the Court, they were refused the right to address their arguments by the learned Additional District Judge. The learned Judge through the impugned order has only clarified his observations mentioned in order dated 16.1.2017 and has held that:-- "

5. The portion of cited judgment is clarified as under:-- Possession of the Shell Pump situated opposite to the PC Hotel Mansehra Road, Abbottabad, in respect of which Execution Petition No.16/10 of 2015 titled as Raja Muhammad Ayaz v. Syed Murtaza Hussain Shah is pending, be handed over to the decree holder/petitioner forthwith subject to the condition that if the objection petition if decided against the present petitioner then possession would be taken back from him and would be delivered to the party entitled to it. It further implies that mere pendency of objection petition, the execution proceedings cannot be allowed to remain suspended."

6. The petitioner also challenged the said order through an application for review but could not succeed and his review petition was dismissed vide order dated 27.2.2017.

7. The learned counsel appearing on behalf of respondent No.1 at very outset, raised two-fold preliminary objections. Firstly, that present petition is not maintainable as the petitioner Hamayun Khan vide special power of attorney has not authorized Shoaib Khan to file constitution petition before this Court and the power of attorney available on file is only for proceedings before Civil Court, Sessions Court and High Court. Further, the said power of attorney is also not attested. Secondly, the petitioner has failed to challenge the order dated 16.1.2017 of learned Additional District Judge-III, Abbottabad, whereby the aforesaid observations were made and only order dated 24.2.2017 and 27.2.2017 have been challenged wherein only order dated 16.1.2017 was clarified.

8. Learned counsel appearing on behalf of petitioner has contended that the power for attorney was obtained for the purpose of filing the instant petition and present Petitioner, who is present in Court, owns and endorses the said power of attorney. The learned counsel for the petitioner contended that Revisonal Court has committed great injustice to the petitioner and erred while not allowing the counsel for petitioner to argue the case. He further stated that the Additional District Judge-III, Abbottabad while hearing revision petition against the order of Executing Court, had no authority to interpret his earlier observation which was otherwise clear and was appreciated by Executing Court.

9. Arguments heard and record perused.

10. What has irked this Court is the conduct of learned Court below denying the opportunity of hearing to the present petitioner as well as Messrs Shell Pakistan Limited while hearing the impugned petition. In any judicial proceedings when the Court is seized of a matter, finally adjudicating upon the rights of the parties, it is required to give full opportunity of hearing to the contesting parties. This principal is not only embodied in almost every statute but is a centuries old golden principle of administration of justice developed through judge-made laws.

11. In Chief Commissioner, Karachi and another v. Messrs Dina Sohrab Katrak (PLD 1959 Supreme Court 45) in which the question before the august Court was whether the Chief Commissioner, before disposing of an appeal of respondent, was obliged to hear her. The august Supreme Court observed:-- "As argued by Mr. Sharifuddin, the learned Advocate for the respondent and indicated by the learned Judges of the High Court the above rule of justice is not confined to proceedings before Courts but extends to all proceedings, by whosoever held, which may affect the person or property or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of a judicial proceeding though administrative in form. If authority is needed for this proposition, it is to be found in the cases cited by Mr. Sharifuddin". The law laid down in the aforesaid judgment has been reaffirmed in University of Dacca and another v. Zahir Ahmed (PLD 1965 Supreme Court 90), Mst. Maryam Yunus v. Director of Education, Cantonment, G.H.Q, Rawalpindi and others (PLD 1990 Supreme Court 666), Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232) and Hazara (HILL TRACT) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others (2005 SCMR 678).

12. In case of Messrs MFMY Industries Ltd. and others v. Federation of Pakistan through Ministry of Commerce and others (2015 SCMR 1550) the Apex Court has not only laid down the basic principles for the Courts while hearing the cases but also structured its discretion in the following words:-- "There is no specific provision in the C.P.C., which confers the right upon the parties to make oral arguments before the trial Court, but per convention, the oral submissions of the parties are also heard, which exercise, however, must be concluded within 30 days' time from the conclusion of the trial, as prescribed by law. If the parties, despite the opportunity granted by the court to make oral submissions, do not avail the same, the court is not bound to wait indefinitely for them and keep on adjourning the matter. This is highly deprecated and should discouraged, rather the Court should pronounce the judgment without their arguments and this (such judgment) shall not be in violation of the rule of hearing".

13. Similarly, in case Mst. Parveen Begum v. Habib Gul and another (1997 MLD 2473) the Hon'bIe Court has observed:-- "The mechanical findings based upon surmises and conjectures are not warranted in law as the Court, created under the law and rules, are bound to pass judicial orders and their findings must be sustainable on record. They are servants of the law and they have to act within the parameters of law and the rules, which create and vest authority in such Courts. If they pass wrong orders in such eventuality they travel outside the jurisdiction and act as despots and such course is not permissible in our system of dispensation of justice".

14. From resume of the aforesaid judgments, it is by now a settled principle of law that violation of principles of natural justice has been considered enough to vitiate even most solemn proceedings. Where adverse action is contemplated to be taken against the person(s), he/she would have a right to defend such action notwithstanding the fact that statute governing his/her rights do not contain the provision of the principle of natural justice and in absence thereof, it is to be read/ considered as part of such statute in the interest of justice [Hazara (HILL TRACT) Improvement Trust case (supra)]. Hence, the order impugned is not sustainable in the eye of law and is accordingly set-aside.

15. Now, coming to the preliminary objections of the respondent No.1, Raja Muhammad Ayaz, although the order dated 16.1.2017 has not been challenged before this Court, however, it is observed that while passing the said order, the learned Revisional Court was only seized of the matter arising out of order of the Executing Court dated 27.07.2016, whereby the learned Executing Court has held that the objection petition filed by Messrs Shell Pakistan Limited was not maintainable and the only issue before the learned Appellate court while passing the order dated 16.1.2016 was as the maintainability of the objection of Messrs Shell Pakistan Limited. It is settled principle of law that the Appellate/Revisonal Court has to restrict itself to the issues raised before it and cannot dilate upon any other issue, although the same might be pending before the subordinate court, hence the observation mentioned in the order dated 16-01-2017 which was later, interpreted by the learned Additional District Judge in the impugned order was obviously beyond mandate of learned Additional District Judge-III, Abbottabad. To support this view, this court is fortified with the judgment of Honourable High Court of Lahore rendered in case titled Messrs Aziz Flour Mills and 2 others v. The Industrial Development Bank, Pakistan (1990 CLC 1473). In the said Judgment the Honourable High Court has laid down:-- "the plaintiff' suit for recovery of bank loan having been dismissed in default and subsequently had been restored by the competent court, appeal against order of restoration could be heard only with regard to the matter relating to order of restoration and not about the merit of the suit, same being beyond the scope of appeal" This view was also reaffirmed in Nishan Ali v. Sher Muhammad (2004 MLD 1809). The perusal of impugned order reveals that learned Revisional Court has not given any findings on the issues decided by learned Executing Court vide order dated 04.2.2017 and has rendered interpretation of his observations already recorded in his order dated 16.1.2017. The explanation rendered by learned Additional District Judge-III, Abbottabad does not appear to be true interpretation of his earlier observation. The perusal of his earlier observation recorded in his order dated 16-01-2016 does not give any impression that mandatory directions were given to the Executing Court for handing over the possession of the Property. To easily understand the interpretation rendered by the leaned Additional District Judge in the impugned order and the one recorded in his earlier order, both are required to be read together hence reproduced:-- Observations recorded in the order dated 16-01-2016 Interpreted in the impugned order dated 24-02-2017 "Needless to mentioned that my this judgment should not be considered in a manner so as to impose any restriction on the jurisdiction of executing court to proceed with the execution proceedings as both can run simultaneously and possession of the decreed pump can be handed over to respondent No.1 subject to the decision of objection petition. Original file be send back to learned trial Court forthwith. Parties are directed to appear before the learned trial court on 19.1.17. No order as to cost. File of this court be consigned to the record room after necessary completion." "5.The portion of cited judgment is clarified as under:-- Possession of the Shell Pump situated opposite to the PC Hotel Mansehra Road, Abbottabad, in respect of which execution petition No.16/10 of 2015 titled as Raja Muhammad Ayaz v. Syed Murtaza Hussain Shah is pending, be handed over to the decree holder/petitioner forthwith subject to the condition that if the objection petition if decided against the present petitioner then possession would be taken back from him and would be delivered to the party entitled to it. It further implies that mere pendency of objection petition, the execution proceedings cannot be allowed to remain suspended." Therefore, the objection is accordingly overruled.

16. The second objection of the learned counsel for respondent No.1 is regarding the power of attorney executed by the present petitioner in favour of Shoaib Khan, who has filed this writ petition against the impugned order. The said power of attorney exhibits that it was executed on 06.3.2017 and the writ petition was filed on 09.3.2017, which means this power of attorney was executed for the purpose of filing the present writ petition. Furthermore, the said power of attorney contained the following words:--

17. Hence, the only inference which can be drawn from the contents of the power of attorney is that it was executed for the filing of present petition. The other objection that power of attorney has not been attested has also no force as this power of attorney is only for the purpose of filing/pursuing Courts and does not create any title over any immovable property, therefore, is not required to be attested. Hence this objection is also overruled.

18. In view of the above, this writ petition is accepted, the impugned orders are set aside, the revision petition of the respondent No.1, Raja Muhammad Ayas shall be deemed pending and the case is remanded back to the learned District Judge, Abbottabad who shall either himself decide the case or shall assign it for disposal to any other Additional District Judge, Abbottabad except Additional District Judge-III, Abbottabad, who has already expressed his opinion. ZC/332/P Case remanded.