1979 PLP 177 (CLC)

A. M. Raffad for Respondent No.

1. Aftab Iqbal Chowdhary for Respondent No.

2. Date of hearing : 6th May 1979. This judgment will dispose of F. A. O. No. 101of 1979 and F. A. O. No. 45 of 1979, both of which have been filed against an order of remand dated 30‑1‑1979, passed by Ch. Muhammad Nasim, Additional District Judge, Gujrat, after accepting the appeal of Riasat Ali respondent, against an order of Mr. Muhammad Akhtar Khan, Civil Judge, Gujrat dated 23‑12‑1978, whereby he had rejected the said respondent's plaint.

2. The facts of the case are that Riase t Ali respondent No. 1, is a depot holder for village Thatta Paur, Tehsil Gujrat, whose depot authorisation was suspended by orders passed by the District Magistrate on 21‑11‑1978,.and conveyed to him by District Food Controller, Gujrat, pending an enquiry against him. In the meantime his sugar quota was attached with the depot of Muhammad Hussain respondent No.

2. Respondent No. 1 filed a suit on 2‑12‑1978 for perpetual injunction praying that the departmental authorities be restrained from cancelling his depot authorisation and from interfering with the running of his depot. ‑ By his order dated 23‑12‑1978, the learned Civil Judge rejected the respondent's plaint under Order VII, rule 11, C. P. C. on the ground that it did not disclose any cause of action and that it was premature. Riasat Ali filed an appeal on 23‑12‑1978 before the Additional District Judge, which was accepted on 30‑1‑1979, and the case was remanded to the trial Court. Learned Additional District Judge has observed in his order that the depot authorisation of respondent No. I could not be cancelled or suspended without giving him an opportunity of being heard, and that his sugar quota could not be attached with the depot of respondent No. 2, without giving any reasons for doing so. The learned Judge also held that the pendency of an enquiry against respondent No. I could not be regarded as being a valid reason for the action that had been taken by the authorities. He held that the suit was not pre‑mature and it should not have been disposed of without even obtaining a written statement from the defendants.

3. Against this order of remand the District Food Controller has filed F. A. O. 101 of 1979 and Muhammad Hussain has filed F. A. O. 45 of 1979. It is submitted on behalf of .the appellant that the order of suspension was made under provisions of section 6 of the West Pakistan Wheat, Wheat Atta, Maize, Rice and Sugar Distribution Order, 1967. It is also submitted that an enquiry is pending against the respondent in which he will be given an opportunity to defend his case. Under these circumstances, the respondent could not pray to the effect that the departmental authorities be restrained from cancelling his depot authorisation, which can be cancelled under section 6 of the above‑mentioned order if the finding at the enquiry will justify that action. The respondent under these circumstances had no cause of action to pray for the relief of injunction in terms mentioned in the plaint. Likewise it is submitted that no exception could be taken to the interim measures that the Department was taking, and the respondent had no cause of action to pray that the Department should not interfere with the running of the depot.

4. Learned counsel for the respondent on the other hand, supports the impugned order and submits that his plaint did disclose a cause of action, because his depot authorisation had been suspended without giving him an opportunity of being heard, and as such his plaint could not be rejected. He relies on Asghar All and 10 others v. Rationing Controller, Hyderabad and another (P L D 1979 Kar. 194) to submit that before cancelling a licence, the licence holder must be given an opportunity of being heard, even though the law under which the cancellation. is made does not provide for such opportunity. He also submits that the principle of granting opportunity of being heard applies at the stage of suspension of the licence also.

5. The plaint filed by the respondent however shows that it was not his grievance that no opportunity of hearing was granted to him before suspending his depot authorisation. His grievance was that an enquiry against him was initiated with ulterior motives, and not for his misconduct, and that his depot authorisation was going to be cancelled for ulterior motives too. It is in this context that he has prayed for a decree for permanent injunction against the respondents that not necessary to decide whether any show‑cause notice was necessary at the~ stage of suspension of the respondent's depot authorisation, because this) has not been his grievance in the plaint.

6. An enquiry has already been ordered against the respondent at which he will be given a proper opportunity of being heard. It is therefore clear that there is no scope for the view that the respondent's depot authorisation is going to be cancelled without hearing him. He will be properly heard before deciding the matter one way or the other. Since the respondents authorisation can be cancelled under section 6 of West Pakistan Wheat, Wheat Atta, Maize, Rice and Sugar Distribution Order, 1967, which Order has been made under section 3 of West Pakistan Act No. XX of 1958, the relief which the respondent has prayed for is barred under section 11 of the Act which reads as follows :‑ "(11) No order made in exercise of any power conferred by or under his Act shall be called in question in any Court." If the proceedings to be taken against the respondent are taken in accordance with law, any order that will be passed will be immune from being challenged in civil Courts. That stage has however not yet reached.' The plaint did not disclose a cause of action for the relief that was sought. The suit is also barred by section 11 of West Pakistan Act XX'~ of 1958. In these circumstances the plaint of the respondent was rightly rejected by the trial Court. The learned Additional District Judge could not remand the case to the trial Court for a fresh decision.

7. In view of the fat that an F. A. O., under Order LXIII, rule 1(u) C. P. C. read with section 102 of the Code, is not competent, when it arises from the suit, the jurisdictional value of which is less than Rs. 2,000 learned counsel have prayed that their appeals be treated as being revision petitions. F. A. O. 101 of 1979 filed by the District Food Controller is therefore treated as being a revision petition. It is accepted and the, order passed by the lower appellate Court is set aside. In view of this order; no separate relief is required to be given to the appellant in F. A. No. 45 of 1979, who in any case has no right independently of the District Food Controller. F. A. No. 45 of 1979 is therefore disposed of. There shall be no order as to costs. K. M. A. Orders accordingly,