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Civil Petition for Special Leave to Appeal No. K‑158 of 1981, decided on 28th March, 1982.

(On appeal from the judgment and order of the High Court of Sind, Karachi, dated 18‑5‑1981, passed in Civil Petitions Nos. 623 and 1550 of 1980).

‑‑‑Art. 185(3)‑‑Supreme Court Rules, 1980, O. XIII, r. 3‑‑Leave to appeal against common judgment given by High Court to dispose of two connected writ petitions‑‑Petitioner being aggrieved in one case, disallowed to challenge judgment in connected case‑‑Plea that petitioner was entitled to challenge entire judgment, repelled‑‑Held, it would amount to permitting provision to appeal against decision ‑in other connected case without there being a proper leave petition for it before Supreme Court‑‑Petitioner, therefore, could not be permitted to indirectly obtain review of decision in connected petition‑‑Petition dismissed.

Nasim Farooqi, Advocate and Faizanul Haq, Advocate‑on‑Record for Petitioner.

Fazle‑e‑Ghani Khan, Advocate and A. Aziz Dastgir, Advocate‑on -Record for Respondent No. 4.

Nemo for Respondents Nos. 1 to 3 and 5 to 10.

Date of hearing: 28th March, 1982.

‑The predecessor of respondents 4 to 10, one Muhammad Ikramuddin was granted permanent lease of shop No. 95 in the Super ,Market Building, situate at Abdullah Haroon Road, Karachi, by the Co‑operative Investment and Management Agency Limited, a Co‑operative Society registered under the Co‑operative Societies Act, 1912, on terms and conditions reduced to writing in an agreement executed by the parties on 27‑4‑1965. The affairs of this Co‑operative Society were being managed by an Administrator appointed by the Government under section 4 of the West Pakistan Co‑operative Board (Dissolution) Act, 1966.

The petitioner claims to have been inducted as a sub‑tenant in the said shop by Muhammad Ikramuddin. On 22‑12‑1977, the Project Manager, Co‑operative Development Fund and Projects, respondent No.3 herein, issued a notice to Muhammad 1kramuddin to show cause why his lease should not be cancelled for violating the terms and conditions of the lease agreement in subletting the shop unauthorizedly to the petitioner. It is alleged that no reply was given in pursuance of the show‑cause notice, and as such the Project Manager passed an order, dated 28‑1G‑1977, cancelling the lease agreement in favour of Muhammad Ikramuddin. An appeal filed by the latter against this order was dismissed by the Deputy Registrar, Co‑operative Societies, Karachi, for lack of jurisdiction. In the meantime, the Project Manager offered the shop to the petitioner by his letter, dated 29‑12‑1977, which was immediately accepted on the next day. This was followed by an agreement of perpetual lease in favour of the petitioner on 31‑12‑1977. Being aggrieved with the order of dismissal of his appeal by the Deputy Registrar, Muhammad Ikramuddin filed a representation with the Secretary, Co‑operation Department, Government of Sind, who happened to be the Administrator appointed under the West Pakistan (Act 11 of 1966) to manage the development fund and project, which administered the Super Market Building in question. He disposed of the representation by his order, dated 26‑3‑1980, in which he held that the action of Project Manager in cancelling the lease of Muhammad 1kramuddin and in giving the shop to the petitioner by a subsequent lease was illegal and mala fide, but without taking further action, referred the dispute between the parties to Arbitration in terms of clause 22 of the agreement executed between the parties. The petitioner challenged this order in the Constitutional jurisdiction before the High Court of Sind in Constitutional Petition No.23 of 1980. In the meantime, Muhammad 1kramuddin died and was succeeded by respondents Nos.4 to 10, who were impleaded as parties in the Constitutional Petition alongwith official authorities as respondents. The petitioner sought the following reliefs:‑

"(a) Declaring that orders, dated 26‑3‑1980 passed by the respondent No.1 ordering the reference of the matter for an arbitration between the Co‑operative Development Fund and Projects and the heirs of late 1kramuddin were passed by him without lawful authority and were thus ultra vires and of no legal effect;

(b) Direct the respondents Nos. 2 and 3 above-named to maintain the orders, dated 28‑12‑1977 passed by the respondent No. 3 cancelling the allotment of shop No. 95 in question."

Respondent No.4, who is widow of deceased Muhammad 1kramuddin also filed a Constitutional Petition No.1550 of 1980 before the same Court seeking the following relief:‑

"(i) That this Hon'ble Court may be pleased to declare that the petitioner's husband who had made full payment of price of shop No. 95, Super Market Co‑operative Housing Society, Limited, had become full‑fledged owner of that shop and his allotment was not liable to be cancelled.

(ii) That the show‑cause notice, dated 22nd December, 1977 (E) and the cancellation order, dated 28th December, 1977 (F) are illegal and void and have been passed by respondent No.2 without any legal authority and are of no legal effect against the interest of the petitioner.

(iii) That the order of respondent No.3 refusing to hear the appeal of the petitioner on the alleged ground that there existed an earlier order of his superior is bad in law, the said officer has wrongly refused to exercise his jurisdiction vesting in him by law.

(iv) That the order Annexure 'J' passed by respondent No.4 is without jurisdiction as the said officer has accepted all the contentions which were raised before him but instead of setting aside the impugned orders referred to above he has wrongly referred the case to the arbitration.

(v) That respondent No.1 not being a member Saddar Co‑operative Housing Society Limited, is not entitled to the allotment of Shop No. 95 and the order of allotment and its lease made in his favour on 31st December, 1978, is illegal, bad in law and has been made by an incompetent officer."

These two Constitutional Petitions were heard and disposed of by a Division Bench of the Sind High Court by a common judgment, dated 18‑5‑1981 the operative part of which reads as under:‑

"In view of the above discussion, we dismiss Petition No. 623/80, whereas we grant the following reliefs in Petition No. 1550/80:

(i) It is declared that the cancellation order, dated 28‑12‑1977 and the re‑allotment order of the shop in favour of S. Moharram Ali, dated 31‑12‑1977 and also the Secretary's order referring the dispute to arbitration, are without lawful authority.

(ii) The respondents in Petition 1550/80 are restrained from acting upon the aforesaid cancellation or re‑allotment order or the order of making reference to arbitration and from taking any shop in pursuance thereof."

In allowing Petition No. 1550/80 filed by respondent No.4, the learned Judges of the Division Bench took the view that admittedly no order was passed by the Administrator in 'regard to cancellation of the lease of Muhammad 1kramuddin or re‑allotment of the shop to the petitioners and since the Administrator was the only competent authority under section 4 of the West Pakistan Co‑operative Board (Dissolution) Act, 1966, the above said orders passed by the Project Manager and Director were wholly without jurisdiction and the Secretary being the Administrator was, therefore, competent to revoke the illegal orders passed by those authorities. But he failed to exercise his jurisdiction and referred the matter to Arbitration which was not sustainable.

The petitioner being aggrieved by the aforesaid judgment of the Division Bench seeks leave to appeal by the present petition.

We have heard Mr. Nasim Farooqi, Advocate for the petitioner. According to the learned counsel, the petitioner is aggrieved by the judgment in so far as it relates to the dismissal of the Constitutional Petition No. 623 of 1980 filed by the petitioner. Accordingly, the decision given by the learned Judges of the High Court in Constitutional Petition No.1550/80 filed by respondent No.4 is not before us in this petition A preliminary question has, therefore. arisen whether the petitioner can assail the judgment of the High Court in so far as it relates to his petition before it without seeking to challenge the decision in the connected Petition No. 1550/80 filed by respondent No.4. Learned counsel strenuously contended that since a common judgment has been given to dispose of both petitions he was entitled to challenge the entire judgment in this petition. We, however, cannot accept this submission. The perusal of the impugned judgment clearly shows that both Constitutional petitions were disposed of by the learned Judges and if the petitioner is permitted to challenge the judgment as a whole, it will amount to permitting him to appeal against the decision of Constitutional Petition No. 1550/80 without there being a proper leave petition before us. Such a procedure is not warranted and, therefore, we cannot permit the petitioner to indirectly obtain review of the decision in the connected petition and have it set aside after obtaining leave by means of the present petition.

For the foregoing reasons, this is not a case for grant of leave to appeal. The petition is accordingly dismissed.

M. I. Leave refused.

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