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Civil Appeal No.l of 1987, decided on 11th April, 1987.

‑‑‑O.III,Rr. 1 & 2‑‑Filing of suit on behalf of principal by attorney‑ Power of attorney silent on factum of institution of suit by such attorney‑‑Suit filed by such attorney whether maintainable‑‑Power of attorney, held, would have to be interpreted strictly in order to ascertain scope of authority conferred by a principal on his attorney‑‑Suit filed by attorney without power of institute such suit would not be maintainable‑‑Where, however, principal ratified past acts of attorney, such attorney though not authorized to institute the suit, subsequent ratification of his act to institute suit by the principal would validate his action of filing suit.

‑‑‑S. 2(21)‑‑Contract Act (IX of 1872), S. 196‑‑Phrase "power of attorney"‑‑Meaning and scope‑‑Principal empowered to ratify acts of his attorney or agent‑‑Scope of ratification stated.

Term "power of attorney" is defined in section 2(21) of the Stamp Act. It is described that a power of attorney includes any instrument, not chargeable with a fee under the law relating to court‑fees for the time being in force, empowering a specified person to act for and in the name of the person executing it. This definition, as a matter of fact, is given in consideration of payment of stamp duty on the documents. However, a distinction is made between the general power of attorney and special power of attorney. The obvious question is as to whether in absence of specific authority to institute the suit, the ratification of the actions of attorney can validate the institution of the suit or not. When a person is authorised by principal to act as his attorney or agent in respect of particular property and the scope of such authority is described in an instrument, any incidental action to the property of such attorney or agent is binding on the principal only when he accepts, acknowledges or undertakes by ratifying the same. In absence or ratification of such an action constituting transgression of authority, the principal cannot be held responsible for such an action. On this premises, it is always deemed expedient to uphold even an unauthorised action of attorney in a suit or proceedings, when it is so ratified by the principal. Section 196 postulates that where acts are done by one person on behalf of another, but, without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will flow as if they have been performed by him authority. The provisions of Contract Act lay a definite rule of ratification of acts of a person by another person on whose behalf he acts. The principle of law enunciated therein equally applies to the acts of attorney if ratified by the principal.

A I R 1943 P C 66; A I R 1936 Cal. 87; A I R 1926 Lah. 223 and 1982 C L C 1275 ref.

‑‑‑S. 9‑‑New Mirpur Town Allotment of Land Act, 1964, S. 8‑‑Jurisdiction of civil Courts whether barred to look into propriety of allotment order‑ Extent of bar of jurisdiction‑‑Civil Courts, held, were competent to try all suits of civil nature unless jurisdiction thereof was ousted expressly or impliedly‑‑Where under a special statute jurisdiction of civil Courts was ousted, such Courts could not entertain any action‑ Civil Court, however, would be competent to try a suit to ascertain propriety and validity of an order passed under special statute by a tribunal or authority as to whether such order was passed in accordance with provisions of special statute or beyond its ambit‑‑Such jurisdiction could be assumed in the larger interest of equity, justice and good conscience to safeguard civil rights of citizens which by ouster of jurisdiction of civil Court were likely to be affected by arbitrary action of authority under special statute‑‑Civil Courts as custodians of civil rights were required to jealously watch and safeguard rights of citizens‑‑Where executive authority or tribunal created by a special statute had acted mala fide or in derogation to provisions of special statute or in arbitrary fashion or transgressed its jurisdiction, such action was permissible to be struck down by a decree or order of civil Court.

Ghulam Hussain's case P L D 1970 Azad J & K 44 rel.

‑‑‑S.100‑‑New Mirpur Town Allotment of Land Act, 1964, S.8‑‑Second appeal‑‑View of subordinate Court that allotment of land to plaintiff though validly made was cancelled for his failure to pay the price within stipulated time repelled‑‑Subordinate Courts fell in error by misunderstanding the documentary evidence consisting of true attested copies of order of allotment, acknowledgment of payment of price, delivery of possession, certificate of Bank acknowledging payment of price of plot by plaintiff, order of condonation of restriction of payment of price within stipulated period and report of Municipal Engineer‑‑Such documents having been proved and admitted in evidence without any objection, disbelief thereof by Courts below without any reasons brought on record, could not be sustained.

‑‑Ss. 74 & 76‑‑Contents of documents‑‑Mode of proof‑‑Proof of documents by primary and secondary evidence stated.

The rule of evidence is that the contents of a document are proved either by primary or by secondary evidence. The primary evidence is the document itself. The secondary evidence, of course, includes certified copies given under the provisions of the Evidence Act, when such copies are compared with the original ones. It is undisputed that the documents containing entries of allotment of plot, payment of price and delivery of possession are public documents as defined under section 74 (1) (ii) of the Evidence Act. Section 76 of the Evidence Act lays down that every public officer having custody of public documents, shall issue their copies, on payment of legal fee thereof, together with a certificate to be given on the foot of the copy that it is a true copy of such document or part thereof, as the case may be. Under the Explanation, an officer authorised to deliver such copies is deemed to have custody of such documents.

‑‑‑S. 10‑‑Cancellation of plot‑‑Allotment Committee's jurisdiction to cancel allotment of plot for breach of conditions or condonation of such breach‑‑Word, "may" used in S.10 of Allotment of Land Act, 1964, connotation of‑‑Use of word "may" in S.10 of the Act vests discretion in Allotment Committee either to cancel, allotment of plot for non‑fulfilment of conditions within stipulated period or where non‑fulfilment of such conditions was bona fide and genuine, it may allow allottee to pay the instalments within such time as may be fixed for such payment‑‑Cancellation order could be passed only after ascertainment of cause or default in payment of price‑‑Such course would be possible when defaulter was issued show‑cause notice and provided an opportunity of being heard‑‑Acceptance of price subsequent to the stipulated period would impliedly tantamount to condonation of conditions‑‑Where second allotment order of plot was silent about cancellation of first allotment, it would be reasonable to believe that no order of cancellation of first allotment had been passed by the Committee‑‑In the alternative if it was deemed that order of second allotment impliedly included the cancellation, such would be a bad order in law.‑‑[Words and phrases).

‑‑‑S. 10‑‑Civil Procedure Code (V of 1908), S. 9‑‑Allotment order, a vested right‑‑Such right, held, could not be taken away without due process of law‑‑Cancellation of allotment would not be valid without show‑cause notice‑‑Cancellation of allotment order without show‑cause notice and allotment thereof to another person would be without jurisdiction and mala fide‑‑Civil Courts would be competent to examine the impugned action in order to redress grievance of plaintiff in circumstances.

‑‑S. 42‑‑Suit for declaration‑‑Consequential relief how granted‑‑Where consequential relief flows from the main relief, plaintiff, held, could not be denied such relief even if he had omitted to ask for the same‑‑Where plaintiff was found to be bona fide allottee of plot, second allotment thereof being without jurisdiction, plaintiff would be entitled to consequential relief by restoration of possession of plot to him.

‑‑S.10‑‑Civil Procedure Code (V of 1908), 5.100‑‑Second appeal‑ Cancellation of allotment of plot effected without due course of law‑ Effect‑‑Where plaintiff's allotment of plot was cancelled without show‑cause notice to him, such cancellation being without jurisdiction and mala fide was set aside by High Court in second appeal and allotment thereof to plaintiff was restored with entitlement to possession.

M.S. Tariq for Appellant.

Ch. Muhammad Taj for Respondents

The second appeal raises the propositions of:

(i) competence of attorney of plaintiff to institute the suit;

(ii) jurisdiction of civil Court; and

(iii) validity of second allotment of Plot in dispute.

Muhammad Khaliq acquired allotment of plot No. 309, Sector F‑1, measuring 2720 sq. ft. (10 Marlas). The allotment was made by Allotment of Land Committee, Mirpur on November 25, 1966. According to the terms of the allotment, 10% of the value of the plot was paid as earnest money and balance in the sum of Rs.1,650 was paid on March 16, 1968. The possession, as alleged by plaintiff, was delivered to him on June 2, 1968. Muhammad Ashraf, attorney of plaintiff, applied for sanction of the proposed design of the house when he learnt that the plot was allotted to Abdullah Khan. On this, by virtue of power of attorney executed by Muhammad Khaliq, in favour of Muhammad Ashraf on March 10, 1975, suit for declaration and perpetual injunction was instituted in the Court of Sub‑Judge Mirpur on January 2, 1977. It was averred that the plaintiff was allotted the plot in dispute by the competent authority and acquired its possession on payment of full price and also raised compound wall and a room at the cost of Rs. 15,000. It was further stated in his pleadings that the plaintiff learnt that in consequence of a conspiracy, plot was allotted to Abdullah Khan without lawful authority. He challenged the validity of action of the Allotment Committee relating to second allotment and sought declaration in his favour by seeking consequential relief in the manner of perpetual injunction. The defendants repudiated the claim of the plaintiff and also raised an objection of jurisdiction of the Court. The Sub‑Judge dismissed the suit as, in his view, the allotment of plot was rightly cancelled by the Committee and further that the civil Court had no jurisdiction in the matter. The order was passed on January 23, 1984. On appeal before the District Judge, the finding of the Sub‑Judge was affirmed by dismissing the appeal.

2. The first point raised by Mr. Tariq, the learned counsel for the appellant pertains to the authority to institute the suit. Both the subordinate Courts arrived at the conclusion that Muhammad Ashraf enjoyed no power to institute the civil suit as the power of attorney conferred no such authority on him. The power of attorney executed by Muhammad Khaliq in favour of Muhammad Ashraf, on March 10, 1975, confers the authority on the attorney in relation to the plot in dispute to look after the plot, to move applications, raise construction, pay dues or fee and carry out incidental actions, to acquire proprietary rights, to transfer plot by mortgage, gift, sale‑deed by receiving consideration and in case it is required to move a revision, review petition, he was authorised to do so and also to file objections and writ petition and to engage a counsel on his behalf. The power of attorney was silent on the point that the attorney, among others, could also institute a suit. In absence of express description of authority to file a suit, the subordinate Courts construed that the suit was instituted without lawful authority. I have perused the document. It is undenied that the document, though confers wide powers on the attorney, but contains no recitals empowering the attorney to institute a suit. It has been held by the Supreme Court of Azad Jammu and Kashmir that a power of attorney is to be interpreted strictly in order to ascertain the scope of authority conferred by a principal on his attorney. In the light of the aforesaid dictum, it has to be accepted that Muhammad Ashraf was not expressly authorised to institute a civil suit. At this stage, I do not want to dilate on this point as in presence of the dictum of this Court as well as Supreme Court, it will be a useless exercise to stretch the scope of the language to bring authority to institute a suit, within the ambit of power of attorney.

3. It is noticed that Muhammad Ashraf was delegated authority by Muhammad Khaliq in respect of the suit property; though it included no power to bring a civil suit, the fact remains that Muhammad Ashraf was authorised to look after the plot, secure proprietary rights in favour of allottee and do all other acts necessary in that behalf, including transfer of plot by any legal manner. Under the impression that the attorney was vested with power to take a suitable action to defend the interest and title of the allottee in the plot, Muhammad Ashraf instituted a suit. No objection was raised in the written statement to the competence of authority of the attorney to institute a suit but it was raised for the first time on July 8, 1981 through an application. The application was opposed by the attorney by filing objections to it on July 26. As a safeguard, Muhammad Khaliq, plaintiff who happened to be in England at that time, executed another power of attorney on July 16, 1981, whereby he ratified all the acts, including institution of suit, by Muhammad Ashraf, his attorney. The power of attorney ratifying the past acts of attorney, was placed on the file of subordinate Court. Both the Courts failed to apply mind to ratification of the authority as the judgments of the subordinate Courts are silent on this point.

4. Term "power of attorney" is defined in section 2 (21) of the Stamps Act. It is described that a power of attorney includes any instrument, not chargeable with a fee under the law relating to court‑fees for the time being in force, empowering a specified person to act for and in the name of the person executing it. This definition, as a matter of fact, is given in consideration of payment of stamp duty on the documents. However, a distinction is made between the general power of attorney and special power of attorney. As no controversy is raised in order to ascertain the nature of power of attorney as to whether it is general or not, I need not go into the depth of the proposition. At this stage, the obvious question is as to whether in absence of specific authority to institute the suit, the ratification of the actions of attorney can validate the institution of the suit or not, When a person is authorised by principal to act as his attorney or, agent in respect of particular property and the scope of such authority is described in an instrument, any incidental action to the property of such attorney or agent is binding on the principal only when he accepts, acknowledges or undertakes by ratifying the same. In absence of ratification of such an action constitution transgression of authority, the principal cannot be held responsible for such an action. On this premises, it is always deemed expedient to uphold even an unauthorised action of attorney in a suit or proceedings, when it is so ratified by the principal. Mr. Tariq, the learned counsel for the appellant, invited my attention to section 196 of the Contract Act and emphasised that, under the provisions of this section, the principal can ratify an act of his attorney or agent. Section 196 postulates that where acts are done by one person on behalf of another, but, without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will flow as if they have been performed by hi authority. The provisions of Contract Act lay a definite rule of ratification of acts of a person by another person on whose behalf he acts. The principle of law enunciated therein equally applies to the acts of attorney if ratified by the principal.

5. In T.R. Bhavani Shunkar Joshi's case A I R 1943 P C 66, a decree was transferred by assignment but the assignee enjoyed no authority at the time of assignment of decree. However, his action was ratified by the principal subsequent to the transaction. It was observed that the question whether ratification would in law validate an assignment executed by an agent who was not authorised at the time of execution of an assignment of a decree, depends on the exact language of sections 196 to 200. Under these sections, it was observed, it is open to the decree‑holder to ratify the act of unauthorised agent who had purported to act on the decree‑holder's behalf in assigning the decree. Ratification in law is equivalent to previous authority; it may be express or it may be effected impliedly by conduct.

In Surendra Nath's case A I R 1936 Cal. 87, the proposition relating to ratification was resolved as:

"Where the supposed ratification relates to acts as to which there is no pretence of any prior authority, where it is not a question merely of excess of authority, full knowledge of the facts and unequivocal adoption after such knowledge must be proved, or in the alternative, the circumstances of the alleged ratification must be such as to warrant the clear inference that the principal was adopting the supposed agent's acts whatever they were or however culpable they were. Ratification relates back to the time of inception of the transaction and has a complete retroactive efficacy."

In Allah Bakhsh's case A I R 1926 Lah. 223, an appeal was preferred by an unauthorised person but the appellant, subsequent to the filing of the appeal ratified the act of his attorney. It was held that when a person on whose behalf the appeal is filed, has accepted or ratified the action of the person who filed the appeal on his behalf, the person filing the appeal has authority to file the appeal.

In Khyam Films' case 1982 C L C 1275, it was observed that when in spite of objections relating to authority of an attorney, the principal continues to recognise the authority of the agent to institute the suit, it was held, this would amount to ratification and the suit woud still be a validly instituted suit.

I approve the rule of ratification as enunciated in the aforesaid authorities. In nutshell, Muhammad Ashraf though not authorised to institute the suit, subsequent ratification, of his act to institute the suit, by the principal has validated his action. The finding of the Subordinate Courts on this point is not sustained.

6. The next point argued by Mr. Tariq relates to jurisdiction of the civil Court to try the suit. It was emphasised that the ordinary Courts are conferred jurisdiction to try all the suits of civil nature except such suits of which cognizance is barred expressly or impliedly. The ouster of jurisdiction of civil Court under the New Mirpur Town Allotment of Land Act, 1964 (hereinafter referred to as the Act) does not restrict the authority of the civil Court, so much so to deprive it to look into the propriety of an order of allotment when it is patently passed in derogation to the provisions of the Act. The contention was opposed by Mr. Taj who contended that the jurisdiction of the civil Court was expressly barred under section 8 of the Act. Thus, the civil Court was not empowered to look into the propriety of the impugned order.

7. The consensus is that civil Courts are competent to try all suits) of civil nature unless jurisdiction is ousted expressly or impliedly. Whenever under a special statute, the jurisdiction of civil Courts is ousted, civil Court cannot entertain an action but it is competent to try a suit to ascertain propriety and validity of an order passed under special statute by a tribunal or authority as to whether such order is passed in accordance with the provisions of special statute or beyond its ambit. The jurisdiction is assumed in the larger interest of equity, justice and good conscience to safeguard civil rights of citizens as it is noticed that the authority or tribunal created under a special statute ousting the jurisdiction of civil Court, occasionally act manifestly in an arbitrary fashion. It is enjoined upon civil Courts to ensure that citizens are not deprived of their civil rights, by disregard of the statute controlling such civil rights. In democratic society, in a free State where basic rights fully in force, are respected and honoured, it is doubly enjoined upon civil Courts as custodian of civil rights, to jealously watch and safeguard the rights of citizens. In order to achieve the intended object, the civil Courts assume jurisdiction to ensure that an executive authority or tribunal created by a special statute, act within the ambit and four walls of such special statute. On the satisfaction that executive authority or a tribunal has acted in mala fide or in derogation to the provisions of special statute or in arbitrary fashion or transgressed its jurisdiction, such an action is permissible to be struck down by a decree or order of the civil Court. This view finds complete approval from the dictum of the superior Courts of the country.

8. In Ghulam Hussain's case P L D 1970 Azad J & K 44 to settle the proposition of jurisdiction apparently ousted by sections 13 and 18 of the Rehabilitation Ordinance, it was observed:--

"Civil Courts are the principal Courts in the country to adjudicate upon civil rights of the citizens either between themselves or between them on the one hand and the Government on the other. Their jurisdiction to entertain disputes of civil nature is plenary. It has been very often said that they should not throw away their jurisdiction, of course, not because that may mean any diminution of their authority but because at stake are the rights of citizens, a matter of fundamental importance in the modern political State. So, within the bounds of law, the right or interference by the Civil Court is not only permissible but also desirable in the best interest of the State itself."

In Abdul Hamid's case P L D 1959 Pesh. 136, the proposition of ouster of jurisdiction under the Frontier Crimes Regulations, sections 10 and 60, was settled as:-

"If a party to a dispute brings a suit, alleging that the Deputy Commissioner has taken action under section 8, F.C.R. not for the reasons mentioned in the section, but for reasons extraneous to it, namely, on account of some ulterior motive or under pressure from higher authority, then, the civil Court has authority to give a verdict whether the Deputy Commissioner has acted under section 8 or not, or his act was fraud on the statute. Sections 10 and 60 which clearly lay down that the acts done "under the Regulation" are protected, do not cover the cases in which acts are not done "under the Regulation". It is within the jurisdiction of the Civil Court to go into the question whether a decree granted by the Deputy Commissioner was ultra vires, malicious, and a fraud on the statute."

In Jai Singh's case A I R 1965 Punj. 262 the question of bar of jurisdiction contained under the Punjab Gram Panchayat Act, 1953, was resolved as:--

"The exclusion of the jurisdiction of the civil Courts is not to be readily inferred and even when it is excluded, the civil Courts have jurisdiction to examine into cases when the provisions of an Act creating special tribunals have not been complied with or the statutory tribunals have either acted without jurisdiction or assumed jurisdiction not vested in them."

The view expressed in the aforesaid authorities was followed in Anjuman Talimul Islam's case P L D 1983 Lah. 294, wherein it was held:‑---

"Thus, if it is shown that the order passed cannot be accommodated within the ambit of power of a particular authority, the civil Court would intervene. Similarly, the civil Court can intervene in case of fraudulent and mala fide orders. In this view of the matter, jurisdiction of the civil Court could only be ousted if it was found that the order passed by the statutory functionary lay within the ambit of its power and was neither based on fraud nor mala fide."

9. The law controlling the allotment of plots in Mirpur city is contained in the Act. As noticed earlier, the allotment in favour of plaintiff was made on November 25, 1966. It was controlled by the provisions of the Act of 1964. Section 8 of the Act postulated that an order or proceedings of the appellate authority or the Committee or of any person to whom powers of the Committee are delegated under the Act, shall not be questioned in any Court. A reading of the provisions of section 8 indicates that the jurisdiction of the Court to examine an order of the Allotment Committee or appellate authority or any person authorised in that behalf cannot be scrutinized. There is an express ouster of jurisdiction of the civil Court. In presence of ouster of jurisdiction, next it is to be examined as to whether action of the Allotment Committee is supported by the provisions of the Act. In case the impugned order is found protected by the provisions of the Act, the plaintiff, of course, has no case. On the satisfaction, conversely, that the order of second allotment is not protected by the provisions of the Act, the Court is fully authorised to strike down the order of allotment for its having been passed without jurisdiction. In the case in hand, plaintiff has challenged the authority of the Committee by ascribing conspiracy or deception as well as exercising jurisdiction not vested by the Act. It is, therefore, permissible to civil Court to take cognizance of the matter, to satisfy whether the order of cancellation of allotment of plaintiff and second allotment to defendant, is within the jurisdiction of the Committee or not.

10. Both the subordinate Courts were of the view that the plaintiff was allotted plot in question but its allotment was cancelled by the Committee, for his failure to pay the price within stipulated period, resulting in violation of terms and conditions of the allotment. This is even accepted by Syed Shabbir Haider Shah, a clerk of Mirpur Development Authority, produced by the defendant‑respondents, that the plaintiff was duly allotted the plot in question but his allotment was cancelled due to non‑payment of arrears of price of the plot. Therefore, apart from documentary evidence produced on behalf of the plaintiff, the allotment of plaintiff is even accepted to the witness of the defendants. I do not agree with the subordinate Courts as their findings do not reconcile with the evidence. They fell in error by misconstruing the documentary evidence consisting of true attested copies of order of allotment, Exh.P.A. acknowledgment of payment of price, Exh. P.B., delivery of possession, Exh. P.C., certificate of the Bank acknowledging payment of price of the plot by plaintiff, Exh.P.D., order of condonation of restriction of payment of price within stipulated period, Exh.P.E. and the report of the Municipal Engineer, Exh. P.E./1. All the documents are true attested copies of the original orders. The copies are attested by the Assistant Estate Officer, M. D. A . These documents are proved and admitted in evidence without any objection. But for reasons not brought on record, the documentary piece of evidence has been disbelieved.

11. The rule of evidence is that the contents of a document are proved either by primary or by secondary evidence. The primary evidence is the document itself. The secondary evidence, of course, includes certified copies given under the provisions of the Evidence Act, when such copies are compared with the original ones. It is undisputed that the documents containing entries of allotment of plot, payment of price and delivery of possession are public documents as defined under section 74 (1) (ii) of the Evidence Act. Section 76 of the Evidence Act lays down that every public officer having custody of public documents, shall issue their copies, on payment of legal fee thereof, together with a certificate to be given on the foot of the copy that it is a true copy of such document or part thereof, as the case may be. Under the Explanation, an officer authorised to deliver such copies is deemed to have custody of such documents. The documents listed as Exhs. P.A., P.B., P.C., P.D., P.E. and P.E./1 are certified true copies of the originals and certificate is given by the Assistants Estate Officer. These documents are not found defective as evidence. A reading of the documentary evidence, undoubtedly, proves that the plaintiff was allotted the plot in dispute. It is true that according to the terms of allotment, the arrears of the price of the plot were to be paid within two months from the date of receipt of order of allotment as in case of default, the allotment was likely to be cancelled but this condition was condoned by the Authority vide Exh.P.E. It was after condonation of the condition that the plaintiff paid rest of the price in the sum of Rs.1,615 in the account of the Authority, through Habib Bank Ltd., Mirpur, on March 16, 1968. Thus, non‑compliance of terms and conditions of allotment, if any, was duly condoned by the competent authority. The order condoning conditions is express and even if, for arguments sake, no express order is passed, acceptance of price subsequent to the stipulated period, impliedly tantamounts to condonation of the conditions. Thus, the allotment of plaintiff is found, for all purposes, a valid allotment of the plot.

12. On the satisfaction that plaintiff acquired a valid allotment of the plot, next it is to be resolved as to whether his allotment is cancelled in accordance with law. It is already noticed that allotment and cancellation of allotment is controlled by the provisions of the Act. Section 10 of the Act postulates that the Committee may, in case of default in the payment of instalments or dues, cancel the allotment and the amount paid shall stand forfeited to the Government. The language used in section 10 empowers the Committee, that it may cancel an allotment when it is satisfied that the allottee made default in payment of instalments or dues. The use of word "may" vests discretion in the Committee. This discretion is to be exercised in the light of circumstances of each case. Once the Committee is satisfied that default in payment of price is not bona fide or without sufficient cause, it is free to cancel the allotment. Conversely, when the default is found bona fide and genuine, it may not cancel the allotment and allow the allottee to pay the instalments or dues within such time as the Committee may fix. The spirit of law appears to be that an order of cancellation is to be passed after ascertainment of cause of default in payment of price. This is only possible when an allottee ascribed default in the payment is issued show‑cause notice and provided opportunity of hearing. In no other circumstances, the Allotment Committee can cancel an allotment. In present case, the defendant‑respondents failed to produce order of cancellation of allotment. The omission to produce order of cancellation of allotment, raises a presumption that in fact, no order of cancellation of allotment was ever passed by the Committee. We are in possession of only second allotment order made in favour of Abdullah Khan. The order of second allotment, Exh.D.A., is silent about cancellation of the first allotment. It is, therefore, reasonable to believe that no order of cancellation of first allotment has been passed by the Committee. In the alternative, if it is deemed that order of second allotment impliedly includes the cancellation, even in that case it is a bad order in law, for the following reasons:

(i) The allot tee‑plaintiff is not shown to have been issued a show‑cause notice in order to give him an opportunity of hearing, to explain the reasons for delay in payment of the dues. The order is violative of the rule of Audi Alteram Partem;

(ii) The so‑called delay in payment of dues lost its importance as by a specific order passed on March 14, 1968, the delay was expressly condoned. On condonation of delay, plaintiff paid the dues and once the payment of dues was acknowledged by acceptance of price and issuing a certificate to that effect, vide Exh.P.B., and delivering possession to plaintiff, it completed the transaction of allotment in favour of plaintiff;

(iii) Moreover, from practice it appears that non‑payment of arrears or dues, rarely results in cancellation of allotment. According to the testimony of Mr. Shah, Clerk, second allottee equally failed to pay the dues within the stipulated period and yet his allotment has been left intact.

13. It cannot be denied that on completion of transaction of allotment, the plaintiff acquired a right in the plot. The plaintiff could not be deprived of his vested right in the plot without due course of law. The provisions of the Act do not empower the Committee or, for that matter, any other authority to annul an allotment once it is complete.

Thus, once an allotment is complete under the Act, the Allotment Committee has no power, whatsoever, to allot the same plot to another person. The order of second allotment, in such conditions, is without jurisdiction, as such mala fide. The subordinate Courts failed to appreciate this aspect of the proposition despite the fact that the decision of this Court recorded in Muhammad Afzal's case decided on October 28, 1978, was placed before them.

14. Reaching the conclusion that the order of second allotment is in dergation to the provisions of the Act, as such without jurisdiction. I have no hesitation to hold that civil Courts are competent to examine I the impugned action in order to redress the grievance of plaintiff. The order of second allotment being mala fide and without jurisdiction, is unsustainable.

15. In his pleadings, plaintiff prayed for perpetual injunction by restraining the defendants from interfering in his possession. On decision of the first appeal, it is disclosed that the defendant No.l occupied the plot. Under the changed circumstances, plaintiff moved an application in this Court for granting him consequential relief in the shape of restoration of possession. Under section 42 of the Specific Ralief Act, it is provided that when consequential relief flows from the main relief, plaintiff cannot he denied such relief. By now, it is settled rule of law that a suit for declaration covered by section 42 of the Specific Relief Act, cannot be dismissed on account of an omission to seek consequential relief as it is within the authority of the Court to allow consequential relief despite non‑asking by plaintiff. In present case, under the changed position, plaintiff rightly felt advised to move for grant of consequential relief. As I have come to the conclusion that plaintiff is a bona fide allottee of the plot and the second allotment is without jurisdiction, the plaintiff is found entitled to consequential relief by restoration of possession of the plot to him.

16. In view of the reasons listed above, the appeal succeeds. The orders of the subordinate Courts are set aside and the suit is decreed. Plaintiff is the lawful allottee of Plot No. 309, Sector F‑1, Mirpur City. Second allotment of Abdullah Khan, being ultra vires, has no effect on the interest and title of plaintiff. Plaintiff is equally entitled to restoration of possession of the plot. No order as to costs.

A.A./307/H.A. Appeal accepted.

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