1993 M L D 772

[Lahore]

Before Gul Zarin Vani, J

MUHAMMAD GHANI---Appellant

Versus

All AHMAD and 3 others---Respondents

Regular Second Appeal No.72 of 1970, heard on 24th January 1993.

(a) Punjab Pre-emption Act (I of 1913)--

----S.15---Pre-emption suit whether embraced the whole transaction of sale or part of it to

attract principle of partial pre-emption ---Plaintiff intended to claim pre-emption in
respect of the entire transaction and expressed his unequivocal mind in the plaint about
it---Counsel, however, omitted to mention one Khasra number, but added a note at the
end of the plaint for comprehending entire transaction of sale in the pre-emption suit---
Such omission appeared to be a clear inadvertent omission of pen which did not
materially impunge upon merits of the cause; at the most same was an error respecting
description of land sold and did not tantamount to leaving out a portion of land or exclude
same from the ambit of the claim for pre-emption ---Plaintiff's suit was, thus, not one of
partial pre-emption.

(b) Civil Procedure Code (V of 1908)---

----S. 151---Inherent powers of Court---Court's inherent powers to correct errors

respecting description of property were readily available for exercise at any tune to
prevent miscarriage of justice.

Ch. Muhammad Asif Ranjha for Appellant. Taki Ahmad Khan for Respondent No.1.

Date of hearing: 24th January 1993.

JUDGMENT
Solitary point surviving for decision in the second appeal was, whether the plaintiff sued
for partial pre-emption of the sale and was rightly non-suited in appeal by learned District
Judge, Sialkot, on 3-12-1969, and, if it was found otherwise that the plaintiff intended to
sue for pre-emption in respect of the whole of the land conveyed in the registered sale-
deed, judgment given in appeal deserved to be quashed and that of the trial Court entitled
to be restored.

Facts lie within a short campass. By a sale-deed executed on 19-3-1966, and, registered
on 22-3-1966, Abdul Ghani and his two sisters Mst. Roshan Bibi and Mst. Resham Bibi
sold five Kanals of agricultural land out of Khata No.26, situate at Mauza Chak Kala of
Tehsil and District Sialkot for a consideration of Rs.2,000 to Ali Ahmad. Muhammad
Ghani as plaintiff claimed pre-emption in respect of the above sale. He asserted his
superior right of pre-emption on the grounds of being a collateral to the vendors, a co-
owner in the joint Khata and owner of the estate. Pre-emption suit was instituted on 18-3-
1967. Vendee of the land resisted the suit. He contested the plaintiff's right to pre-empt
the sale, amongst other grounds on account of partial pre-emption. Contentions pleadings
gave rise to as many as seven issues including that of relief. Issue No.3 covered the point
regarding plea of partial pre-emption. It was resolved in favour of the plaintiff by the trial
Court but was found against him, in the lower appellate Court. So, the question would be,
whether the pre-emption suit embraced the whole transaction of sale or a part of it to
attract the principle of partial pre-emption. Upon careful reading of the Plaint and
considered analysis of the evidence, I was left in no doubt that the plaintiff intended and
did pre-empt the sale of the entire land conveyed in the registered sale-deed dated 22-3-
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1966 marked Exh.D.l. It showed sale of five Kanals of land from Khasras Nos.52, 154,
155,160,161, 162, 352/163, 353/163, 164, 165 comprised in Khataunis Nos.48 to 54 of
Khewat No.26 recorded in the Jamabandi for the year 1963-64, and situated at Mauza
Chak Kala of Tehsil and District Sialkot. In the plaint of the pre-emption suit, plaintiff
gave full description of the land sold through the registered sale-deed. The area described
was five Kanals; numbers of Khataunis and Khata were correctly noted in para. 1 of the
plaint, but Khasra No.52 came to be omitted from it, while numbers of other Khasras
were correctly given in the aforesaid para of the plaint. Reference to the date of sale-deed
and consideration for the sale were also correctly noticed. At the end of the plaint, a note
was appended that the plaintiff claimed pre-emption in respect of the entire land sold
through the registered sale-deed. The vendee admitted sale of five Kanals of land in his
favour, through the registered sale-deed, but made a mountain out of a molehill1 of the
omission of Khasra No.52 from the plaint and described it a case of partial pre-emption
and took an exception to maintainability of the pre-emption suit on this score. Learned
District Judge appeared to agree with this hyperbolical 2 technical view of the record and
found it to be a case of partial pre-emption by the plaintiff. Unfortunately for the
contesting respondent, I could not subscribe to his view and uphold it upon any rational
view of the record. Plaintiff intended to claim pre-emption in respect of the entire
transaction evidenced by Exh.D.l and expressed his unequivocal mind in the plaint about
it. However, while drafting the plaint, the Advocate omitted to mention one Khasra
number, but added a note at the end of the plaint for comprehending entire transaction of
sale in the pre-emption suit. It appeared to be a clear inadvertent omission of pen which
did not materially impinge ~R upon the merits of the cause. At the most, it was an error
respecting description of the land sold and did not tantamount to leaving out a portion of
the land or excludes it from the ambit of the claim for pre-emption. In giving effect to the
plea of partial pre-emption, learned District Judge made fetish of a minor technicality
regarding description of the property sold. In my view, nothing material turned on the
omission. The Court could have easily rectified the error without infringing any principle
of law favouring the vendee. Inherent powers to correct errors respecting description of
the property were readily available for exercise at any time to prevent miscarriage of
justice. A fair view of the plaint led to an irresistible conclusion that it covered the entire
land conveyed in the registered sale-deed and by no stretch of imagination it could be
held to be a case of partial pre-emption. View taken in the lower appellate Court was
clearly incorrect. As for the, superior right of pre-emption possessed by the plaintiff,
Exh.P.l left no doubt that he was a co-owner in the joint Khata, out of which the land-in-
dispute was sold to the vendee. Learned counsel for the respondent made a vain attempt
for refuting it, though the point was not agitated in first appeal by the vendee. Purchase
price had since been deposited in time fixed in the decree of the trial Court.

In view of aforesaid, appeal is allowed with costs. Impugned judgment and decree of
learned District Judge dated 3-12-1969 are set aside and those of the trial Court restored
to take effect in accordance with law.

Original records be returned.

A,A./M-842/L Appeal accepted.

1
Exaggerate the importance of something, create a major problem out of a small one.
2
Of or pertaining to hyperbole, exaggerated, overstated; of or pertaining to a hyperbola
(Mathematics).
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2 0 0 7 S C M R 351

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

COLLECTOR OF CENTRAL EXCISE AND SALES TAX----Appellant

Versus

PAKISTAN FERTILIZER COMPANY LTD.----Respondent

Civil Appeal No.2079 of 2004, decided on 10th October, 2006.

(On appeal from the judgment, dated 11-5-2005 of the High Court of the Sindh at
Karachi, passed in J.M. No.24 of 1982 in C.M.A. No.198 of 2004).

(a) Procedure Code (V of 1908)---

----S. 151---Inherent jurisdiction of Court---Scope---Where jurisdiction of Court is

expressly limited to decision of particular questions, the decision of other questions must
be regarded as impliedly removed from its jurisdiction.

(b) Civil Procedure Code (V of 1908)---

----S. 151---Inherent jurisdiction of Court---Scope---Powers as conferred upon a Court

under 5.151 C.P.C. can only be exercised with respect to procedural matters---Exercise of
such inherent powers must not affect the substantive rights of parties.

Padam Sen v. State of U.P. AIR 1961 SC 218 rel.

(c) Civil Procedure Code (V of 1908)---

----S. 151---Inherent powers, exercise of---Principles---Such inherent powers cannot be

used when some other remedy is available and more so, it cannot be exercised as
appellate powers---Inherent powers as conferred upon a Court under S.151 C.P.C. applies
only to the exercise of jurisdiction, where some lis is pending before the Court and does
not confer jurisdiction to entertain a matter which was not pending adjudication.

Rasab Khan v. Abdul Ghani 1986 CLC 1400; Sajjad Amjad v. Abdul Hameed PLD 1998
Lah. 474; Nazar Muhammad v. Ali Akbar PLD 1989 Kar. 635; Muhammad Ayub Khan v.
Riyazul Hasan 1985 CLC 619; Commerce Bank Limited v. Sarfraz Autos PLD 1976 Kar.
973; Muhammad Ashfaq v. Shaukat Ali PLD 1976 Lah. 15; Commerce Bank Limited v.
Sarfraz Autos PLD 1976 Kar. 973; Mian Muhammad Ashfaq v. Lt.-Col. Shaukat All 1975
Law Notes Lah. 725; Ganisons Indus. Ltd. v, Akhiaque Ahmed PLD 1974 Kar. 339; Lai
Muhammad v. Niaz Parwara PLD 1971 Pesh. 157; Karamatullah v. Government of West
Pakistan PLD 1967 Lah. 171; Bashir Begum v. Abdul Rehman PLD 1963 Lah. 408; Sher
Muhammad v. Khuda Bux PLD 1961 Lah. 579; Inayatullah Butt v. Cantonment Board,
Rawalpindi PLD 1957 Lah. 583; in re: Subramania Desika AIR 1958 Mad. 284 and
Muhammad Usman Khan v. Miraj Dili PLD 1978 Lah. 790 rel.

(d) Civil Procedure Code (V of 1908)---

----S. 151---"Ends of justice" and "abuse of the process of Court" contained in S.151,
C.P.C.---Connotation---Effect--- Inherent powers contained in S.151 C.P.C. can only be
exercised to secure the ends of justice or for the purpose of preventing abuse of the
process of Court---. Words "ends of justice" and "abuse of the process of Court" should
be construed with due regard to rest of the provisions of Civil Procedure Code, 1908---
Main object of S.151 C.P.C. is to prevent Court from being rendered powerless on
account of any omission in Civil Procedure Code, 1908, and empower the Court to make
necessary orders and no other orders.

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Emirates Bank International Ltd. v. Adamjee Industries Limited 1993 CLC 489 rel.

(e) Constitution of Pakistan (1973)---

----Art. 23---Transfer of Property Act (IV of 1882), S.7---Contract Act (IX of 1872),
S.57---Civil Procedure Code (V of 1908), S.151---Right to hold and transfer of
property---Inherent powers of High Court---Changing terms and conditions of Indenture
of Lease---Land in dispute was leased out to a company by Federal Government for
establishing a Fertilizer Plant---Company was liquidated in year, 1982, and land was
purchased by respondent being the highest bidder---Auction purchaser in the year 2003,
entered into an agreement to sell with some other persons, in respect of a portion of the
land in question---Revenue authorities declined to issue `No Objection Certificate' for
execution of sale deed of leasehold rights of the portion of land intended to be sold by
auction purchaser, on the ground that the sale was in violation of the clauses of the
Indenture of Lease executed by Federal Government---High Court, on application filed
by auction purchaser under S.151 C.P.C. directed the authorities to issue the requisite `No
Objection Certificate'---Plea raised by the authorities was that High Court had no
authority to make any amendment in the Indenture of Lease---Validity---Conditional title
regarding land in question was conferred upon original lessee and no superior title could
have been conferred upon auction purchaser---High Court had no authority to make any
amendment, deletion, insertion or addition in Indenture of Lease---Sale certificate in
favour of auction purchaser was issued on behalf of Court but it could not violate or
change the terms and conditions of Indenture of Lease, without impleading the necessary
parties i.e. the President of Pakistan through the concerned Ministry, by whom Indenture
of Lease was executed---Liquidation of company did mean that Federal Government was
deprived of the land pertaining to it---Auction purchaser and subsequent purchasers could
not take benefit of huge amount worth whereof ran into billions by depriving
Government of Pakistan without any legal or moral justification---Auction purchaser and
subsequent buyers had no legal right whatsoever to distribute the land between them as it
was not an ancestral property and the same was subject to the terms and conditions
enumerated in Indenture of Lease---Legal provisions were exploited by invoking
provisions as contained in S.151 C.P.C.---In the case 'of subsequent purchasers, even
provisions of S.7 of Transfer of Property Act, 1882, could not render any assistance as
title of auction purchaser was disputed because after three years, land in question should
have been reverted to Government of Pakistan because initial purpose i.e. establishing a
plant of fertilizer could not be achieved---Auction purchaser could not sell leasehold
rights in violation of Indenture of Lease---High Court had no authority whatsoever to
pass any order in violation of the terms and conditions as enumerated in Indenture of
Lease having no legal authority to get it changed---High Court had no authority to resolve
such a controversial issue by exercising its jurisdiction under S.151 C.P.C. and without
impleading Government of Pakistan as necessary party---Order passed by High Court
was set aside being unlawful---Appeal allowed.

Province of Punjab v. Muhammad Yaqoob 1992 CLC 2065 ref.

(f) Constitution of Pakistan (1973)---

----Art. 23---Word "property" occurring in Art.23, Constitution---Scope---Property, which

is illegal to hold is not property.

Raza Kazim v. District Magistrate, Lahore PLD 1958 Lah. 706; S.M. Transports (P.) Ltd.
v. Sankaraswamigal Mutt AIR 1963 SC 864; Rajah of Bobbili v. State of Madras AIR
1952 Mad. 203; AIR 1952 Cl. 184; Iswari Prosad v. N.R. Sen .AIR 1952 Cal. 273 and
Nasirabad Properties Ltd. v. Chittagong Development Authority PLD 1966 Dacca 472
rel.

(g) Constitution of Pakistan (1973)---

----Art. 24---Protection to hold property---Principles---Where a person is deprived of his

property under the authority of law and according to the provisions of law, such person
has no ground for complaint under the Constitution.

2 of 1
Amar Singh v. Custodian, E.P. AIR 1957 SC 599 and Tika Ramji v. State of U.P. AIR
1956 SC 676 rel.

Raja Muhammad Irshad, D.A.-G. and M. Zafar Iqbal, Advocate-on-Record for Appellant.

Sharifuddin Pirzada, Senior Advocate Supreme Court and Raja Qureshi, Advocate
Supreme Court for Respondent.

Date of hearing: 6th April, 2006.

JUDGMENT

AVED IQBAL, J.---This appeal with leave of the Court is directed against the order,
dated 11-5-2005 whereby C.M.A. No.198 of 2004 has been allowed.

2. Leave granting order dated 9-12-2004 is reproduced hereinbelow for ready reference to
appreciate the legal and factual aspects of the controversy:---

"Petitioner seeks leave to appeal against the judgment dated 11th May, 2004 passed by
the High Court of Sindh, Karachi in J.M. No.24 of 1982 in C.M.A. No.198 of 2004.

2. Precisely stating facts relevant for disposal of instant petition are that vide indenture of
lease dated 15th July, 1969 executed between the President of Pakistan being lessor and
Messrs Pakistan Fertilizer Co. Ltd. (hereinafter referred to as "the Company") being the
lessee. The lease of a piece of land measuring 70 Acres lying within the limits of Central.
Excise and Land Customs Department at Mauripur, Karachi for establishment of a
Fertilizer plant for a term of 99 years inter alia with the following two conditions:--

(4) The lessee shall use the demised land only for the purpose of installing 'a plant or
complex for producing Phosphatic Fertilizers and related by-products, and shall establish
a plant or complex within a period not exceeding three years from the date of the
execution of this deed, failing which the lease shall stand terminated.

(5) The lessee will not assign or underlet the demised premises or any part thereof or the
rights and privileges hereby granted or any of them to any person nor create a charge on
this land in' respect of the lessees rights thereto in favour of Pakistan Industrial Credit and
Investment Corporation Limited for securing any loans granted by or through that agency
without the previous consent in writing of the Government of Pakistan (hereinafter called
the "Government") or the Government Officer for the time being incharge (Collector,
Central Excise and Land Customs, Karachi)."

(2) It so happened that the Company was liquidated by a Company Judge of the High
Court of Sindh, Karachi, as a result whereof its assets including 70 Acres lease land was
taken over by the Nazir of the High Court of Sindh who was appointed as official
liquidator. Assets of the Company along with said 70 Acres lands was purchased iii
auction by Abdul Rehman Jinnah son of A.S. Jinnah being highest bidder. Sale in his
favour was confirmed 6y the High Court of Sindh on 9th February, 1989 which was duly
registered with the Sub-Registrar. The auction purchaser later on mortgaged the land with
National Bank of Pakistan, Nadir Branch Karachi, liability whereof accrued subsequent
thereto was finally settled in execution proceedings filed in pursuance of the decree
passed in two different Suits bearing Nos.432 of 1997 and 662 of 1994 before the
Banking Court No.III, Karachi respectively.

3. Meanwhile auction-purchaser Mr. Abdul Rehman Jinnah vide agreement dated 25th
October, 2003 agreed to sell leasehold rights in respect of 60 Acres out of 70 Acres of the
disputed land to Messrs Khawaja Amir Ishaque son of Khawaja Muhammad Raza and
Syed Rizwan Ahmed son of Syed Furqan Ahmed. And thereafter auction-purchaser
approached on 12th January, 2004 to the Collector Central Excise and Sales Tax to
ascertain the outstanding dues in respect of the property towards annual ground tax for
the completion of sale transaction and ultimately deposited an amount of Rs.13,10,991
through a pay order with the Collector Central Excise and Sales Tax Karachi on 19th
January, 2004. However, the petitioner declined to issue N.O.C. as the execution of' the

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sale-deed of leasehold rights was in violation of clauses (4) and (5) of the lease deed
which have already been reproduced hereinabove. As such the purchaser submitted an
application No.198 of 2004 before the Company Judge seeking direction to the Excise
Department and Mukhtiarkar Revenue Kcamari Town to issue Deh Form II as well as
N.O.C. duly countersigned by D.D.O. (Revenue) or alternatively direct the Registrar "T"
Division "X" Karachi to register the document which could entitle the purchaser to
acquire, hold, dispose of or enjoy the property etc.

4. The petitioner contested the application, inter alia, on the ground that the land in
dispute can only be used for the purpose of installing a plant or complex for producing
Phsophatic Fertilizer and related by-products within a period of three years from the date
of execution of lease deed failing which the lease shall stand terminated. It was also
alleged that the purchaser had no right under the lease deed to bifurcate 70 Acres into two
portions i.e. 60 and 10 Acres, which he did so without the written consent of the Central
Excise and Land Customs Department Karachi.

However, other functionaries namely Sub-Registrar and Mukhtiarkar (Revenue) agreed to

register the sale-deed subject to supply of certain documents. Details whereof are not
necessary to be mentioned here.

5. The learned Company Judge allowed the application vide order, dated 11th May, 2004.
As such instant petition has been filed.

6. Learned counsel for petitioner contended that in terms of conditions Nos.4 and 5 of
indenture of lease, the auction-purchaser Abdul Rehman Jinnah had no right to sell the
leasehold rights to the intended purchaser i.e. Khawaja Amir Ishaque and others because
the Company had obtained the land only for the purpose of installing a plant or complex
for producing Phosphatic Fertilizer and related by-products, therefore, this land cannot be
used for any other purpose. He further stated that the Company Judge had also erred in
law in auctioning 70 Acres land considering it to be one of the Company's component
without noticing that the Company had got only leasehold right for utilizing the same for
a limited purpose. Besides it the Company had failed to utilize the same within a period
of three years, therefore, as per the lease agreement the lease was liable to be determined.
According to him since the petitioner had objected to the issuance of NOC by the learned
Company Judge, therefore, same can be treated notice on behalf of petitioners to the
auction-purchaser to determine the leasehold rights. It was also contended by him that the
Company Judge had no jurisdiction under the law to issue direction on accepting an
application for issuance of NOC because after having disposed of petition for winding up,
it has become functus officio. Besides it the auction-purchaser had divided 70 Acres plot
into two portions i.e. 60 and 10 Acres without the consent of the petitioner which is
entirely against the provisions of rules and regulation, therefore, learned Company Judge
of the High Court of Sindh should not have granted ally relief to respondent.

7. Learned counsel on caveat opposed the petition and stated that auction-purchaser had
purchased the leasehold rights in open auction as far back as on 31st March, 1989 and he
had been enjoying the proprietary rights in respect of this land as the same was
mortgaged by him and no objection was raised by the petitioner in this behalf. No notice
for determining the leasehold rights which has been purchased by Abdul Rehman Jinnah
was ever issued. The conditions Nos.4 and 5 being relied upon by the petitioner of the
indenture of the lease dated 15th July, 1969 were never pressed into service by the owner,
therefore, at this belated stage when the property had already changed different hands the
leasehold rights cannot be determined. The petitioner department after having received
arrears of the rent amounting to Rs.13,10,991 is legally and morally bound to issue NOC.
Present proceedings are not competent because the matter is already pending on the file
of Company Judge of the High Court of' Sindh, therefore, petition be dismissed.

After hearing both the sides and having gone through the record available on record leave
to appeal is granted, inter alia to examine respective contentions put forward by the
learned counsel for the parties.

Leave to appeal is accordingly granted."

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3. Raja Muhammad Irshad, learned Deputy Attorney-General appeared on behalf of
appellant and urged with vehemence that the winding up process qua Pakistan Fertilizer
Company Limited was finalized on 19-2-1989 and thereafter no further application could
have been moved in a past, closed and finalized transaction as such the Miscellaneous
Application No.189 of 2004 in J.M. No.24 of 1982 moved in the year 2004 after about 14
years should have not been entertained by the learned Single Judge of the High Court of
Sindh as the Court had become functus officio after final adjudication i.e. winding up of
the company. It is next contended that by virtue of indenture of lease executed on 15-7-
1969 whereby 70 Acres of land situated at Mauripur Road Karachi was leased for a
period of 99 years to Messrs Pakistan Fertilizer Company Limited could not have been
sold by Abdul Rehman Jinnah, auction-purchaser as it was allotted for a specific purpose
to Messrs Pakistan Fertilizer Company Limited and exclusively meant for establishing a
fertilizer plant. It is also contended that 70 Acres of land could not have been bifurcated
into two pieces of sixty and ten Acres of land in violation of the indenture of lease and
therefore, NOC for execution of sale-deed could not be issued as it would be in violation
of clauses (4) and (5) of the indenture of lease which aspect of the matter went unnoticed
by the learned single Judge in Chambers causing serious prejudice against the appellant.
It is further argued that the comments furnished by the appellant and arguments made to
substantiate the claim have not been appreciated in its true perspective which resulted in
serious miscarriage of justice. It is contended emphatically that the learned single Judge
in Chambers had assumed jurisdiction in the company's. matter without taking into
consideration that the main J.M. 24 of 1982 was disposed of on 19-2-1989 and without
having gone through the relevant record of the main J.M. No.24 of 1982 and allowed the
miscellaneous application filed by the purchaser namely Abdul Rehman Jinnah. It is also
argued that no reliance could have been placed in case Province of Punjab v. Muhammad
Yaqoob 1992 CLC 2065 being distinguishable. It is lastly argued that the order impugned
being illegal may be set aside.

4. Mr. Sharifuddin Pirzada, learned Senior Advocate Supreme Court duly assisted by
Raja Qureshi, learned Advocate Supreme Court entered appearance on behalf of
respondent and controverted the view point as canvassed at bar by the learned Deputy
Attorney-General. Mr. Sharifuddin Pirzada, learned Senior Advocate Supreme Court on
behalf of respondent highlighted the background and mainly contended that the leasehold
rights of the land in question have been sold by Abdul Rehman Jinnah who was
competent to do so by virtue of the sale auction certificate duly issued by the Court being
the highest and successful bidder. It is also contended that the process of winding up was
initiated and finalized at the behest and consent of the Government hence the question of
any objection from any quarter does not arise. In order to substantiate his esteemed view
it is pointed out by Mr. Sharifuddin Pirzada, learned Senior Advocate Supreme Court on
behalf of respondent that the winding up of the company was finalized with the consent
of Ministry of Petroleum. It is also pointed out that sale was free from all liabilities and
encumbrances pursuant to the order, dated 19-12-1989 passed by the learned Court and
the lawful rights conferred upon the respondent could have been used in any manner as
may be deemed fit and proper. It is stressed time and again that leasehold rights could
have been sold by the respondent and no legal restriction can be imposed and therefore,
the agreement to sell with Khawaja Amir Ishaque and Syed Rizwan Ahmed (intervenors)
cannot .be questioned as it was being executed pursuant to the title which Abdul Rehman
Jinnah had on 25-10-2003 initially conferred upon him vide order, dated 19-12-1989 of
the Court. Mr. Sharifuddin Pirzada, learned Senior Advocate Supreme Court also referred
the Economic Reforms Order, 1972 (President's Order No.1 of 1972) and pointed out that
various powers have been conferred upon the Federal Government by virtue of clause (5)
and Article 7F of the Economic Reforms Order,' 1972. The Board of Directors entered
upon office on 9th September, 1979. It is also contended, that the project for which the
company was formed was not considered viable economically and finally it was decided
by the Ministry of Production, Government of Pakistan in consultation with the Ministry
of Finance that the company be liquidated and the letter, dated 23-5-1982 containing
direction for initiating measure for dissolving the company was issued by the Ministry of
Production, Government of Pakistan. It is lastly argued that a line of distinction is to be
made between the ownership and leasehold rights which are being sold by Abdul Rehman
Jinnah in favour of Khawaja Amir Ishaque and Syed Rizwan Ahmed and no legal bar
whatsoever could be imposed in this regard.

5 of 1
5. We have carefully examined the rival contentions as agitated on behalf of the parties,
scanned the entire record with the eminent assistance of learned counsel and perused the
order impugned. It is an admitted feature of the case that winding up process qua Pakistan
Fertilizer Company Limited was finalized on 19-2-1989 and sale certificate to that effect
was also issued. It is not understandable that how an application (C.M.A. No.198 of
2004) could have been moved after 15 years and that too under section 151, C.P.C. which
by no stretch of imagination can be invoked in view of the peculiar circumstances of the
case in hand. How and under which provision of law the learned single Judge in
chambers has reopened a final and closed transaction without examining the previous
orders and more so, exercised the powers of the Company Judge which in this case were
not specifically conferred upon him. No separate Bench was constituted to deal with such
matters and obviously for the reason that nothing was pending since winding up process
qua Pakistan Fertilizer Company Limited was finalized. It is unconceivable that how the
learned Judge without having examined the entire previous record set the dispute at
naught which could not have been done on an application moved under section 151,
C.P.C. The learned single Judge heard the application (C.M.A. No.198 of 2004) in J.M.
No.24 of 1982 on 10-2-2004, 16-2-2004, 19-2-2004, 20-2-2004, 9-3-2004, 16-3-2004,
24-3-2004, 25-3-2004 and final hearing was held on 11-5-2004 whereby the
miscellaneous application (198 of 2004) was allowed. It is worth mentioning that the
learned High Court has passed .the order dated 11-5-2004 on miscellaneous application
of the purchaser whereas the order, dated 19-2-1989 was passed on J.M. No.24 of 1982
whereby the matter was finally decided and it became a past and closed transaction.
Insofar as the provisions as contained in section 151, C.P.C. are concerned the same could
not have been pressed into service for the simple reason that where the jurisdiction of a
Court is expressly limited to the decision of particular questions, the decision of other
questions A must be regarded as impliedly removed from its jurisdiction. The powers as
conferred upon a Court under section 151, C.P.C. can only be exercised with respect to
procedural matters and the exercise of such B inherent powers must not affect the
substantive rights of the parties. In this regard we are fortified by the dictum as laid down
in case Padam Sen v. State of U.P. AIR, 1961 SC 218 wherein it was held that "the
inherent powers saved by section 151, of the Code are with respect to the procedure to be
followed by the Court in deciding the cause before it. These powers are not powers over
the substantive rights which any litigant possess. Specific powers have to be conferred on
the Courts for passing such orders which would affect such rights of a party. Such powers
cannot come within the scope of inherent powers of the Court in the matters of procedure,
which powers have their source in the Court possessing all the essential powers to
regulate its practice and procedure." It may not be out of place to mention here that such
inherent powers cannot be used when some other remedy is available and more so, it
cannot be exercised as appellate powers. The inherent powers as conferred upon a Court
under section 151, C.P.C. applies only to the exercise of jurisdiction where some lis is
pending before the Court and does not confer jurisdiction to entertain a matter which was
not pending for adjudication. In this regard, reference can be made to case Rasab Khan v.
Abdul Ghani 1986 CLC 1400; Sajjad Amjad v. Abdul Hameed PLD 1998 .Lah. 474;
Nazar Muhammad v. Ali Akbar PLD 1989 Kar. 635; Muhammad Ayub Khan v. Riyazul
Hasan PLJ 1985 Pesh. 22; Commerce Bank Limited v. Sarfraz Autos PLD 1976 Kar. 973;
Muhammad Ashfaq v. Shaukat Ali PLD 1976 Lah. 15; Commerce Bank Limited v.
Sarfraz Autos PLD 976 Karc. 973; Mian Muhammad Ashfaq v. Lt.-Col. Shaukat Ali 1975
Law Notes Lah. 725; Ganisons Indus. Ltd. v. Akhlaque Ahmed PLD 1974 Kar. 339; Lal
Muhammad v. Niaz Parwara PLD 1971 Pesh. 157; Karamatullah v. Government of West
Pakistan PLD 1967 Lah. 171; Bashir Begum v. Abdul Rehman PLD 1963 Lah. 408; Sher
Muhammad v. Khuda Bux PLD 1961 Lah. 579; Inayatullah Butt v. Cantonment Board,
Rawalpindi PLD 1937 Lah. 583; in re: Subramania Desika AIR 1958 Mad. 284 and
Muhammad Usman Khan v. Miraj Din PLD 1978 Lah. 790. There is no cavil with the
proposition that pursuant to the provisions as contained in section 151, C.P.C. the
inherent powers can only be exercised to secure the ends of justice or for the purpose of'
preventing abuse of the process of the court and the words "ends of justice" and "abuse
of' the process of the Court" should be construed with due regard to rest of the provisions
of the Code because the main object of section 151, C.P.C. is to prevent the Court from
being rendered powerless on account of any omission in the Code and empowers the
Court to make necessary orders and no other orders. If any authority is needed reference
can be made to case Emirates Bank International Ltd. v. Adamjee Industries Limited
1993 CLC 489. The case in hand has been examined on the touchstone of the criterion as
mentioning herein above and we are of the considered opinion that inherent powers could
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not have been exercised in this case. For the sake of argument if it is admitted that the
matter could have been reopened or reconsidered but even then it could have been done
only to solve any dispute between Abdul Rehman Jinnah and that of Pakistan Fertilizer
Company Limited being relevant parties during the winding up proceedings. The learned
High Court was not at all concerned with any subsequent dispute which has arisen
between Abdul Rehman Jinnah and new buyers to whom the land in question was sold by
Abdul Rehman Jinnah and any other department of the Government? How learned Single
Judge in Chambers could have interfered, dilated upon and decided the dispute having no
jurisdiction at all being functus officio. Any new dispute between Abdul Rehman Jinnah
and new buyers namely Khawgja Amir Ishaque and Sycd Rizwan Ahmed and any of the
department on any point could have been resolved by invoking the jurisdiction of Civil
Court or by writ jurisdiction subject to all legal exceptions. There was no moral or legal
justification whatsoever available for the learned single Judge to have interfered with in
the matter which was already decided in J.M. No.24 of 1982 filed by Pakistan Fertilizer
Company Limited under section 166 of the Companies Act, 1913 for the winding up of
the company i.e. Pakistan Fertilizer Company Limited which was done fifteen years
back. A notable and alarming feature of the case is that the learned Judge did not bother
to sec as to whether the Federal Government was impleaded as party or otherwise? And
no reason whatsoever was given for such omission having substantial bearing on merits
of the case which smacks of mala fides on the part of Abdul Rehman Jinnah as well as the
interveners. It escaped from the notice of learned single Judge in Chambers that initial
agreement was executed between the President of Pakistan and that of Pakistan Fertilizer
Company Limited and as such it was necessary to implead the Federal Government as a
party.

6. We have also adverted to the Indenture of Lease which was executed between the
parties on the terms and conditions as enumerated therein. The relevant clauses of
Indenture of Lease are reproduced hereinbelow for ready reference:

"(4) The lessee shall use the demised land only for the purpose of installing a plant or
complex for producing Phosphatic Fertilizer and related by-products and shall establish
such a plant or complex within a period not exceeding three years from the date of the
execution of this deed, failing which the lease shall stand terminated.

(5) The lessee will not assign or underlet the demised premises or any part thereof or the
rights and privileges hereby granted or any of them to any person nor create a charge on
this land in respect of the lessees rights thereto in favour of Pakistan Industrial Credit and
Investment Corporation Limited for securing any loans granted by or through that agency
without the previous consent in writing of the Government of Pakistan (herein after
called the "Government") or the Government Officer for the time being incharge
(Collector, Central Excise and Land Customs, Karachi)."

7. A bare perusal of the Indenture of Lease would reveal that;

(i) the Indenture of Lease was executed between the President of Pakistan and Pakistan
Fertilizer Company Limited;

(ii) the lease was executed for the establishment .of a fertilizer plant based on phosphatic
and mixtures of phosphate cold with all ancillary and supporting or needed facilities;

(iii) the lease was granted for a term of 99 years commencing from the 15th day of July,
1969. It was agreed between the parties that the land shall be used only for the purpose of
installation of plant or complex for producing fertilizer etc. within a period not exceeding
three years from the date of execution of the deed;

(iv) it was also agreed that in case of failure the lease shall stand terminated;

(v) it was binding upon the lessee that he will not assign or underlet the demised premises
or any part thereof;

(vi) it was also agreed that the lessee will not create a charge on this land in respect of the
lease rights thereto in favour of the Pakistan Industrial Credit and Investment Corporation

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Limited for securing any loan granted by or through that agency without having the prior
consent of the Government of Pakistan in black and white;

(vii) it was agreed that the Government of Pakistan could resume whole or any portion of
the demised premises if so required by the Government for any purpose and lessee shall
be bound to deliver the possession forthwith;

(viii) the entire dealing qua payment etc. could have been made to the Officer appointed
by the Central Government.

It is worth-mentioning that no other Ministry including the Ministry of Petroleum was

ever mentioned at any place.

8. After having gone through the Indenture of Lease the only unescapable conclusion
would be that the land in question could not have been used for any other purpose except
installation of fertilizer plant and moreso, it could not have been mortgaged for obtaining
any loan. It may not be out of place to mention here that the Indenture of Lease was
executed in between the President of Pakistan through Ministry of Finance which was
never impleaded being a necessary party which has resulted in a huge loss to the
Government Exchequer. Pursuant to the terms and conditions as enumerated in the
Indenture of Lease the Pakistan Fertilizer Company Limited obtained the status of lessee
for 99 years but the leasehold rights were not absolute but conditional as pointed out
hereinabove. The lessee was bound that in case of failure of the installation of plant the
lease shall be terminated. The leasehold rights were 'conferred upon the lease pursuant to
the Indenture of Lease which could not have been violated and hence the further transfer
of leasehold rights or its sale would be in violative of Indenture of Lease and would have
no legal sanctity as well, The Pakistan Fertilizer Company Limited had obtained loan in
violative of the terms and conditions as enumerated in the Indenture of Lease and
moreso, no permission from the Government of Pakistan was obtained in this regard. A
careful perusal of the Indenture of Lease would reveal that a conditional title qua the land
in question was conferred upon the lessee i.e. Pakistan Fertilizer Company Limited and
no superior title could have been conferred upon Abdul Rehman Jinnah the auction-
purchaser of the land in question. The learned Single Judge in chambers had absolutely
no authority to make any amendment, deletion, insertion or addition in the Indenture of
Lease. We are conscious of the fact that sale certificate was issued on behalf of the Court
but it cannot violate or change the terms and conditions of the Indenture of Lease without
impleading the necessary party i.e. the President of Pakistan through Ministry of Finance
by whom the Indenture of Lease was executed. How could the sale certificate bring such
a drastic changes in the Indenture of Lease which aspect of the matter went unnoticed by
the learned single Judge in chambers'? It appears that the sale certificate was neither
perused nor examined before its issuance. The Nazir of the Court has absolutely no
authority to mention in the sale certificate that the land in question could have been used
for industrial purposes as it was never so stipulated in the Indenture of Lease which was
immediately accepted by Abdul Rehman Jinnah and the interveners being beneficial to
their interest. There is no denying the fact that Pakistan Fertilizer Company Limited was
liquidated but it does not mean that the Federal Government be deprived of the land
pertaining to it. How Abdul Rchman Jinnah and the interveners could take benefit of
huge amount worth whereof runs into billions by depriving the Government of Pakistan
without any legal or moral justification. The auction purchaser and the interveners had no
legal right whatsoever to distribute the land between them as it was not an ancestral
property and the same was subject to the terms and conditions enumerated in the
Indenture Lease. We are of the considered view that the legal provisions have been
exploited as there was no justification whatsoever to get the matter reopened by invoking
the provisions as contained in section 151, C.P.C. At this juncture we have also examined
the provisions as contained in Article 23 of the Constitution of the Islamic Republic of
Pakistan. The word "property" used in the Article means "the property in respect of which
a right of proprietorship may be asserted". Raza Kazim v. District Magistrate, Lahore
PLD 1958 Lah. 706. "It includes every possible interest which a party may have in
property, including abstract and concrete rights". S.M. Transports (P.) Ltd. v.
Sankaraswamigal Mutt AIR 1963 SC 864. A careful analysis of Article 23 of the
Constitution would reveal that property which is illegal to hold is not property "unless
there is a transfer of property from one person to another or vesting and divesting of
property, there cannot be said to be any "acquisition" or property". Rajah of Bobbili v.
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State of Madras AIR 1952 Mad. 203. We are conscious of the fact that "the right to hold
property includes the right to hold it in any manner that the owner chooses, and also the
right to enjoy it. When the right of an individual proprietor of a property is restricted with
regard to free user, it amounts to putting restriction on his right to hold that property. The
right to free exercise of possession is a right which is pertinent to or flows from, the right
of ownership." AIR 1952 Cl. 184; Iswari Prosad v. N,R. Sen AIR 1952 Cal. 273;
Nasirabad Properties Ltd. v. Chittagong Development Authority PLD 1966 Dacca 472.
We have no hesitation in our mind to hold that Abdul Rehman Jinnah' had no legal right
to dispose of the land in question as has been done and he was not in a position to confer
a better title in favour of the interveners which was never conferred upon him. The
provisions as contained in Article 24 of the Constitution of Islamic Republic of Pakistan
makes the position crystal clear and it is well-settled by now that where a person is
deprived of his property under the authority of law and according to the provisions of H
law, he has no ground for complaint under the Constitution as mentioned hereinabove any
action can be taken by the lessor as may be deemed fit and proper qua the land in
question. In this regard we are fortified by the dictum laid down in cases Amar Singh v.
Custodian, E.P. AIR 1957 SC 599 and Tika Ramji v. State of U.P. AIR 1956 SC 676.

9. We may point out that even section 7 of the Transfer of Property Act, 1882 hardly
renders any assistance to the case of interveners as the title of Abdul Rehman Jinnah
(auction-purchaser) is disputed as after three years the land in question should have been
reverted to the Government of Pakistan as the initial purpose i.e. establishing a plant of
fertilizer could not be achieved. Abdul Rehman Jinnah (auction-purchaser) by no stretch
of imagination can sell leasehold rights in violation of the Indenture of Lease as
mentioned hereinabove. We have also adverted to the provisions as contained in section
57 of the Contract Act, 1872 and in our considered view the learned single Judge in
Chambers had no authority whatsoever to pass any order in violation of the terms and
conditions as enumerated in the Indenture of Lease having no legal authority to get it
changed.

10. In the same wake of events it has been observed that the learned single Judge in
Chambers was conscious of the fact that he had become functus officio and therefore, he
observed that "as a matter of principle, I would agree with the learned counsel once the
company had been wound up, its assets sold and the money received therefrom
distributed amongst its creditors, the proceedings initiated under the Companies
Ordinance for winding up of the company as in the present case would come to an end.
Thereafter, any further dispute with regard to the property would give a fresh cause of
action to the auction-purchaser which could only be agitated through a separate
proceeding" and after concluding so the assumption of jurisdiction appears to be without
any legal base wherein Khawaja Amir Ishaque and Syed Rizwan Ahmed (the interveners)
or Abdul Rehman Jinnah (auction purchaser) are involved would give them a new cause
of action, cognizance whereof could not have been taken on an application simipliciter
moved under section 151, C.P.C. and its disposal in a casual and cursory manner by
ignoring the nature of dispute. It must not be lost sight of that the learned single Judge in
chambers has held that the property in question continues to be vested with the Federal
Government but ignored the fact that the Federal Government was never impleaded as a
party. The learned single Judge in Chambers could have examined the Indenture of Lease
to find out the necessary parties, impleadment whereof was essential to set the
controversy at naught. It is not known what prevailed upon the learned single Judge in
chambers to resolve the dispute without impleading of the Federal Government. Besides
that the learned single Judge in Chambers has absolutely no legal authority whatsoever to
declare clause (4) of the Indenture of Lease as redundant which has been declared in
oblivion of the fact that lease deed was executed by the President of Pakistan through
Ministry of Finance and the Pakistan Fertilizer Company Limited, how it could have been
done without affording proper opportunity of hearing to the Federal Government. The
fact that land in, question could not be got redeemed by the .Federal Government within a
period of three years would not confer the right of ownership or leasehold rights to Abdul
Rehman Jinnah and its subsequent sale to Khawaja Amir Ishaque and Syed Rizwan
Ahmed (the interveners). For the sake of argument if it is' conceded as held by the
learned single Judge in Chambers that clause (4) of the Indenture of Lease became
redundant how clause (5) of the Indenture of Lease can be kept intact? The reasoning
given by the learned single Judge in Chambers that "while bifurcation of the property and
sale of such potions does not come within the meaning of assigning or under-letting the
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same to any person or for that matter creating a charge thereon as postulated in clause (5)
of the lease deed the fact remains that where such transactions which fall short of an
outright sale have been prohibited without the sanction of the Federal Government by
necessary analogy sale of the property or any of its bifurcated' areas should also have the
sanction of the Federal Government. Consequently, I would hold that the auction-
purchaser would have to obtain such sanction both for the bifurcation of the property and
its sale to the purchaser. However, having said as much I would also direct the
Government of Pakistan that once it is approached by the auction-purchaser for the
necessary bifurcation/permission to sell it shall act reasonably in the matter in accordance
with past precedents and where such permission is refused cogent reasons should be
given for the same", seems to be fallacious, arbitrary and non-convincing. On one hand
all the rights have been conferred upon the auction purchaser and interveners and on the
other they have been directed to approach the Government of Pakistan which appears to
be contradictory as the learned single Judge in Chambers could have very conveniently
impleaded the Government of Pakistan to know its point of view instead of making the
above observations.

11. We have also examined C.M.A. No.198 of 2004 which inter alia enumerates that
pursuant to the title conveyed to the purchaser (Abdul Rehman Jinnah) on 25th October,
2003 he entered into an agreement with Khawaja Amir Ishaque and Syed Rizwan Ahmed
(interveners) to sell 60 Acres of land out of 70 Acres and retain 10 Acres for himself
which is not a correct picture of the events as no title could have been conferred upon
Abdul Rehman Jinnah on 25-10-2003 as mentioned in ' C.M.A. No.198 of 2004. In fact
everything has been done which was not provided under the Indenture of Lease. We are
of the considered view that Abdul Rehman Jinnah (auction-purchaser) was not legally
entitled to sell sixty Acres of land pertaining to Government of Pakistan and retain 10
Acres of land for his own use. It was neither the ancestral property nor inherited by Abdul
Rehman Jinnah and as such its disposal in such a manner cannot be declared lawful. We
have also adverted to the prayer clause of C.M.A. No.198 of 2004 which is reproduced
hereinbelow for ready reference:

"in view of the aforesaid it is respectfully prayed that the Collector Sales Tax and Excise,
Karachi/Mukhtiarkar Kemari Town, Karachi be directed to issue Form II as well as NOC
duly countersigned by DDO (Rev.) or alternatively direct the Registrar T Division-X
Karachi, to register the document which could entitle the present purchaser to acquire,
hold and dispose of and enjoy the property. Conveying the spirit of the order of Sale
made by this Honourable Court in favour of the titled purchaser in the aforementioned
proceedings."

12. A bare perusal of the prayer clause would indicate that whatever had been demanded
or prayed for could not have been granted by the learned single Judge in Chambers while
exercising his powers under section 151, C.P.C. which have been misconstrued and
misinterpreted. We have also examined the winding up application preferred on behalf or
Pakistan Fertilizer Company Limited (J.M. No.24 of 1982) wherein it has been admitted
in a categoric manner "that amongst the principal assets of the petitioner Company are
some of the plant and machinery which were imported and are lying idle and a plot of
land measuring 70 Acres situated within the limits of Central Excise and Land Customs
Department at Mauripur in Karachi Taluka, Karachi District was acquired from the
Federal Government on lease for a term of 99 years commencing from 15th July, 1969".
In view of' the categoric admission that land in question was leased out in favour of
Pakistan Fertilizer Company Limited by the Government of Pakistan how it could have
been sold or leasehold rights transferred in favour of the interveners by the auction-
purchaser. It is an admitted feature of the case that Ministry of Finance and Ministry of
Petroleum have decided for liquidation pursuant to the direction of Ministry of
Production, Government of Pakistan but it would have no bearing on the Indenture of
Lease which could not have been changed except that of lessor himself i.e. Government
of Pakistan which was never impleaded as a party. Even otherwise the Ministry of
Finance and Ministry of Petroleum had never suggested that in violation of the Indenture
of' Lease the land in question could have been sold or its leasehold rights could be
transferred. It is not known how Abdul Rehman Jinnah (auction purchaser) has become
the owner of the land merely on the basis of sale certificate which was issued by the
Nazir which fact was never examined by the learned single Judge in Chambers. It
transpired from the scrutiny of record that the total liability of Abdul Rehman Jinnah
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comes to rupees three crores fifty lacs whereas the leasehold rights have been transferred
in lieu of rupees twenty-eight crors and he had earned a net profit of rupees 25 crores
which should have been gone to the Government of Pakistan as Abdul Rehman Jinnah
had no better title than that of Pakistan Fertilizer Company Limited to whom the land in
question was leased out for specific purpose.

In sequel to above mentioned discussion we are of the considered opinion that the learned
single Judge in Chambers had no authority to resolve such a controversial issue by
exercising his jurisdiction under section 151, C.P.C. and without impleading the J
Government of Pakistan as necessary party. In such view of the matter the appeal is
accepted and the order impugned being unlawful is set aside. The parties concerned may
approach to the forum concerned for the redressal of their grievances, if so desired.

M.H./C-22/SC Appeal allowed.

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