Find a Lawyer

Civil Appeal No. 43 of 1969, decided on 17th March 1971.

(On appeal from the order of the High Court of West Pakistan, Lahore, dated the 25th April 1966, in Writ Petition No. 658 of 1959).

Enemy Property (Custody and Registration) Order, 1965,

para. 4(iv)‑Writ petition by a Bank against order of Custodian, Evacuee Property declaring Bank and its property evacuee‑Pending petition Bank becoming enemy alien‑Petition dismissed by High Court on ground that Bank no longer had any locus standi to main tain petition and power of attorney filed on behalf of Custodian, Enemy Properly to continue petition also rejected on ground that "he was not party to proceeding" and position could not be different even if it were so‑Held, view of High Court was plainly incorrect and writ petition as also "other legal proceeding" which Custodian of Enemy Property could continue under para. 4(iv) of Enemy Pro perty (Custody and Registration) Order, 1965.

Reference No. 1 of 1965 P L D 1966 Kar. 160 considered.

Raja Muhammad Anwar, Advocate Supreme Court instructed by S. Inayat 1lussain, Attorney for Appellant.

Mian Hidayat Ali Taib, Advocate Supreme Court for Respon dents Nos. 4 and 5.

Respondents Nos. 1‑3: Ex parte.

Date of hearing: 17th March 1971.

MUHAMMAD YAQUB ALI, J. ‑

The appellant called in question in the High Court by a Writ Petition the order of the Custodian of Evacuee Property that the appellant and its property were evacuee. The matter coming up before a Division Bench, the petition was dismissed on 25th April 1966, on the ground that in the meantime the appellant had become an enemy alien and under para. 4(iv) of the Enemy Property (Custodian and Registration) Order, 1965, framed under the Defence of Pakistan Rules, 1965, it had no locus standi to continue with the petition. Reliance was placed on Reference No. 1 of 1965 (P L D 1966 Kar.160).

The power of attorney filed by Mr. Ihsanul Haq, Advocate, on behalf of the Custodian, Enemy Property, to continue with the petition was also rejected on the ground that "he was not a party to the proceedings and even if he was the position could not in any way, be different.

Leave to appeal was given to consider whether the High Court had rightly refused to allow the Custodian of Enemy Property to continue with the writ petition.

The view expressed by the High Court was plainly incorrect. Clause (iv) of sub‑para (2) of Paragraph 4 of the aforementioned Order expressly gives a right to the Custodian of Enemy Property to "institute", defend or continue any suit or other legal proceed ings, refer any dispute to arbitration and compromise any debts, claims or liabilities". A writ petition is certainly "other legal proceedings" which the Custodian could continue in the High Court. The decision reported in P L D 1966 Kar. 160 is based on the provisions of section 83 of the Civil Procedure Code, but at page 172 of the Report it is remarked :‑

"(2) The suits in which the defendants are enemy aliens can proceed. If the enemy property is involved and vests in the Custodian of Enemy Property it is open to him to continue or defend the suit."

As seen the Custodian of Enemy Property had appointed Mr. Ihsanul Haq as his Advocate to continue with the Writ Petition, but contrary to the provisions of Rule 4(iv), the learned Judges did not permit him to continue with it. It appears that the attention of the learned Judges was not drawn to the rule as well as to the observations in the Karachi case reproduced above.

The appeal is, accordingly, allowed and the case is remanded to the High Court for disposal is accordance with law. There will be no order as to costs.

Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.