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Civil Miscellaneous Appeal No. 1178 of 198,i in Constitutional Petition No.1038 of 1986, decided on 11th June, 1987.

‑‑‑Art. 199(4‑A)‑‑Income‑tax Ordinance (XXXI of 1979), Ss. 56 & 61‑‑Stay of operation of notices‑‑ Extension of period of stay‑‑Maxim actus curiae neminem gravabit (act of the Court shall prejudice no man)‑‑ Application‑‑Maxim can be pressed into service so long as it does not violate any express provision of law and can be given effect to in exercise of inherent power of the Court which has not been negatived by any express provision of law‑‑Court, therefore, cannot negate mandatory provision of Art. 199 (4‑A) by extending period of stay on the basis of the maxim. ‑‑[Maxim].

Broom's Legal Maxims, Tenth Edition; Paul Williams and another v. Hatiz Nasir Ali P L D 1960 (W.P.) Kar. 174; Mian Arshad Ali v. Government of Pakistan through Secretary Ministry of Rehabilitation, Islamabad and 13 others P L D 1975 Lah. 7 and Fazal Haq v. The State P L D 1982 Lah. 452 ref.

‑‑‑Court cannot add anything in the Constitution what has not been provided therein.

Divisional Superintendent, P.W.R. Karachi v. Bashir Ahmed and others P L D 1973 S C 589; Soshi Goomar Banerjee and another v. Mrs. D.J. Hill and others A I R (36) 1949 F C 135; Ramchandiram Mirchandani v. India United Mills Ltd. and others AIR 1962 Bom. 92; Har Charan Singh v. Shiv Rani and others A I R 1981 S C 1284; Chaibasa Cement Works Jhinkpani v. Their Workmen A I R 1960 S C 56 distinguished.

‑‑‑ Art. 199 (4‑B)‑‑ Income‑tax Ordinance (XXXI of 1979), Ss. 56 & 61‑‑Stay of operation of notices‑‑ Extension of period of stay‑‑Provision of Art. 199 (4‑B) does not empower Court to extend period of stay order beyond six months

‑‑‑Art. 199 (4‑A)‑‑Income‑tax Ordinance (XXXI of 1979), Ss. 56 & 61‑‑Stay of operation of notice s‑‑ Extension of period of stay‑‑Principle that Court having power to grant final relief can grant interim relief being ancillary and incidental to the main relief, held, could be invoked so long as there was no express prohibition.

Syed Sardar Bokhari v. The Chief Justice and Judges of the High Court of West Pakistan, Lahore P L D 1965 S C 479; Commissioner, Khairpur Division Khairpur and another v. Ali Sher Sarki P L D 1971 S C 242; Sind Employees Social Security Institution v. Adamjee Cotton Mills Limited P L D 1975 S C 32; Falah ul Momineen Trust v. V.P. Abdullah P L D 1970 Kar. 179; Zafar Iqbal v. The Province of Sind and 2 others P L D 1973 Kar. 383 and Board of Trustees of the Port of Karachi v. Messrs National Construction Co. Pak. Ltd. and another P L D 1981 Kar. 123 distinguished.

‑‑‑Art. 199(4‑A) & ( 4‑B )‑‑Extension of period of stay‑‑High Court observing that either in Art. 199(4‑A), period of six months be extended to a reasonable period or Courts may be empowered under Art. 199 (4‑B) to extend period of stay in cases where a petitioner is not on fault.

Notwithstanding the fact that clause (4‑B) of the Constitution provides that the High Court shall dispose of the case on merits within six months from the date on which an order on an application under clause (1) of Article 199 of the Constitution has been passed, the period of six months provided for in clause (4‑A) of the above Article cannot be extended even if the case would not be disposed of within a period of six months in terms of above clause (4‑B). 'The Court observed that it would be the proper that either in Clause (4‑A) the period of six months be extended to a reasonable period or the Courts may be empowered under Clause (4‑B) to extend the period of stay in cases where a petitioner is not at fault.

Hassan Mahmood and others v. Federal Land Commission and others 1985 C L C 2665; Federation of Pakistan v. United Sugar Mills P L D 1977 S C 397 and Allah Wasaya and 6 others v. F.L.C. P L D 1979 S C 44 ref.

Muhammad Amin Butt for Petitioner.

Imam Ali Kazi Dy. A.‑G. and Shaikh Hyder for Respondents.

This is an application under Section 151, C.P.C. read with Article 199 (4‑B) of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, in which the petitioners have prayed the following relief:

"It is therefore respectfully prayed that as an ancillary and incidental step to the exercise of jurisdiction this Hon'ble Court may grant stay for a further period of 3 months and direct that the case may be decided within this period."

The brief facts leading to the filing of the above petition are that the petitioners filed the above petition impugning the notices issued against them under sections 56 and 61 of the Income Tax Ordinance, 1979 by the Income Tax Officer, Central Circle B‑11, Karachi on the ground that they being a Trust under the Trusts Act, 1882 are not liable to be assessed. Alongwith the above petition an application for interim relief for the stay of the operation of the notices (C M A No.2405 of 1986) was filed, which was granted by a Division Bench of this Court by an order dated 20‑11‑1986 but it was also observed that the stay would continue for six months from the above date and that by afflux of time it would lapse on the expiry of six months from the above date.

2. The above petition was listed for regular hearing first time on 19‑5‑1987 when the petitioner filed the above application on which notice was ordered to Deputy Attorney‑ General, When the above application came up for hearing on 25‑5‑1987, by consent of the learned counsel for the parties it was adjourned to 8‑6‑1987.

Mr. Muhammad Amin Butt learned counsel for the petitioners, in support of the above application has urged as follows:‑

(i) That since the main petition has not been disposed of by the Court within six months period as contemplated by Clause (4‑B) of Article 199 of the Constitution, without any fault of the petitioners, the petitioners cannot be prejudiced or penalised on account of acts/omissions on the part of the Court.

(2) That Clause (4‑B) of Article ‑199 of the Constitution being a curative/ remedial provision should be given liberal construction as to advance the cause of justice.

(3) That once the above clause (4‑B) is attracted to, the Court can grant an ad interim injunction even beyond the period of six months on the principle that the Court which can grant the final relief can also grant interim relief which is being ancilliary to the main relief.

3. On the other hand Mr. Imam Ali Kazi, learned Deputy Attorney General, on Court notice has urged as under:‑

(1) That since in the aforesaid order dated 20‑11‑1986, it was specifically provided that the stay order would operate for six months, grant of extension in the above period would amount to review of the above order which is not warranted by law.

(2) That the petitioners have not shown what steps they have taken for getting the above petition disposed of within six months and, therefore, they cannot complain or make a grievance on account of non‑disposal of the above petition within six months.

(3) That since Clause (4‑B) of. Article 199 of the Constitution does not provide any consequence in case of non‑disposal of a petition within the period of six months. The above provision is directory in nature and not mandatory.

Mr. Shaikh Hyder, learned counsel for respondents has adopted the arguments of Mr. Imam Ali Kazi, learned Deputy Attorney‑General.

4. Mr. Muhammad Amin Butt, learned counsel for the petitioners in support of his above first submission that since the main petition has not been disposed of by the Court within six months period as contemplated by Clause (4‑13) of Article 199 of the Constitution, without any fault of the petitioners the petitioners cannot be prejudiced or penalised on account of acts/omissions on the part of the Court, has referred to a passage on the maxim "Actus Curiae Neminem Gravabit" that an act of the Court shall prejudice no man, from Broom's legal Maxims, Tenth Edition, which reads as follows:‑

‑An act of the Court shall prejudice no man."

This maxim "is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law" (b). In virtue of it, where a case stands over for argument on account of the multiplicity of business in the Court, or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case (c); and therefore, if one party to an action die during a curia advisari vult, judgment may be entered none pretunc, for the delay is the act of the Court, for which neither party should suffer (d)".

He has also referred to the following cases:

(i) Paul Williams and another V. Hafiz Nasir Ali reported in PLD 1960 (W.P.) Karachi 174, in which while accepting a Revision against an ex parte decree, a learned Single Judge of erstwhile High Court of West Pakistan has held that the defendant was entitled to notice of an application for setting aside dismissal of the suit and since no such notice was given by the Court, a party should not suffer by act of Court.

(ii) Mian Irshad Ali V. Government of Pakistan through Secretary, Ministry of Rehabilitation, Islamabad and 13 others reported in PLD 1975 Lahore 7. In the above case a learned Single Judge of the Lahore High Court while dealing with the settlement case referred to the maxim Actus curiae neminem gravabit and held that the above principle was applicable to quasi‑judiclal tribunals e.g. , Settlement authorities.

(iii) Fazal Haq v. The State, reported in PLD 1982 Lahore 452, in which a Division Bench of the Lahore High Court held that under section 561‑A read with sections 369 and 35, Cr.P.C. a High Court has inherent power to give effect to the maxim that nobody should suffer for acts and omission of Court, the court can invoke section 561‑A.

There cannot be any cavil to the proposition of law pounded in the above maxim and the cases cited by the learned counsel for the petitioners. Apart from the fact that it is a debatable point, whether it is on account of any acts or omission on the part of the Court, that the above petition could not be disposed of within the period of six months, 'the above maxim cannot be pressed into service in the instant case even if it is to be held that it was possible to have decided the case within six months period. The maxim Actus curiae neminem gravabit can be pressed into service so long as it does not violate any express provision of law and can be given effect in exercise of inherent power of the Court which has not been negatived by any express provision of law. In the present case Clause of Article 199 of the Constitution expressly provides that the stay shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier, Nothing contrary to this has been provided in Clause (4‑B) of the above Article 199. The Court, therefore, cannot negate the above mandatory provision of Clause (4‑A) by extending the period of stay on the basis of the above maxim, Actus curiae neminem gravabit.

5. Adverting to Mr. Muhammad Amin Butt learned counsel for the petitioners' contention that Clause (4‑B) being curative/ remedial provision should be given liberal construction so as to advance the remedy and suppress the mischief, it may be observed that he has referred to the following cases:

(i) Divisional Superintendent, PWR. Karachi v. Bashir Ahmed and others, reported in PLD 1973 SC 589.

(ii) Rai Ram Taran Banerjee Bahadur (since deceased and after him Soshi Goomar Banerjee and another v. Mrs. D.J. Hill and others reported in AIR (36) 1949 Federal Court 135.

(iii) Ramchandiram Mirchandani v. India United Mills Ltd. and others reported in AIR 1962 Bombay 92.

(v) Har Charan Singh v. Shiv Rani and others reported in AIR 1981 Supreme Court 1284.

(v) The Associated Cement Companies Ltd; Chaibasa Cement Works, Jhinkpani v. Their Workmen reported in AIR 1960 Supreme Court 56.

In‑the above cases inter alia, it has been held that while construing a remedial statute or remedial provision the same should be construed in a manner so as to advance the remedy and suppress the mischief, otherwise it would frustrate the legislative intentment.

In our view, the above cases have no application to the present case. It is also well‑settled principle of interpretation of constitutional provision that the Court cannot add anything in the Constitution to what has not been provided therein. In this regard, it may be pertinent to reproduce herein below clause O‑B) of the Constitution, which reads as follows:

11(4‑B) Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded."

Admittedly, the above quoted Clause (4‑B) does not empower the court to extend the period of a stay order beyond six months as provided in Clause (4‑A) of the same Article 199. If two constructions of the above clause would have been possible, one which would have empowered the Court to extend the period of a stay order beyond D six months and the other which would not have empowered the Court to extend the period of a stay order, the Court would have preferred the former. But the language of the above clause is clear and freel from any ambiguity and does not warrant the former construction.

6. Reverting to Mr. Muhammad Amin Butt's contention that once Clause (4‑B) is attracted of this Court can grant interim relief on the basis of the principle that the Court which can grant final relief can also grant interim relief being ancillary to the main relief, it may be observed that he has referred to the following cases:

(i) Syed Sardar Bokhari v. The Chief Justice and Judges of the High Court of West Pakistan, Lahore reported in PLD 1965 Supreme Court 479.

(ii) Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki reported in PLD 1971 Supreme Court, 242.

(iii) Sin6 Employees Social Security Institution v. Adamjee Cotton Mills Limited reported in PLD 1975 Supreme Court, 32.

(iv) Falah‑ul‑Momineen Trust v. V.P. Abdullah reported in PLD 1970 Karachi 179.

(v) Zafar lqbal v. The Province of Sind and 2 others, reported in PLD 1973 Karachi 383.

(vi) Board of Trustees of the Port of Karachi v. Messrs National Construction Co. (Pakistan) Ltd. and another reported in PLD 1981 Karachi 123.

In some of the above cited cases, it has been held that even in the absence of any express provision to grant interim relief, the Court having the power to grant the final relief can grant interim relief as it is being ancillary and incidental to the main relief.

We are inclined to hold that the above principle can be invoked so long as there is no express prohibition. In the present: case as pointed out Clause (4‑A) expressly provides that the stay shall not operate for more than six months and, therefore, the above principle cannot be pressed into service.

7. Mr. Imam Ali Kazi, learned Deputy Attorney General has referred to the case of Hassan Mahmood and others. v. Federal Land Commission and others reported in 1985 CLC 2665 in which a Division Bench of the Lahore High Court while construing Clause O‑A) of the Constitution and Article 2‑A of the Laws (Continuance in Force) Order 1977 held that the power of the High Court to pass interim order is restricted to a period of six months and, therefore, any order beyond the above period was in violation of the above provision and hence was liable to be vacated. Reliance was placed on the case of Federation of Pakistan v. United Sugar Mills P L D 1977 S C 397 and the case of Allah Wasaya and 6 others v. F.L.C. PLD 1979 S.C. 44).

8 We are of the view, that notwithstanding the fact that Clause (4‑B) of the Constitution provides that the High Court shall dispose of the case on merits within six months from the date on which an order on an application under clause (1) of Article 199 of the Constitution has been passed, the period of six months provided for in Clause (4‑A) of the above Article cannot be extended even if the case would not be disposed of within a period of six months in terms of above Clause (4‑13). It may be observed that the above petition could not be disposed of on account of heavy work load and shortage of Judges.

In our view, it will be proper that either in Clause 01‑A) the period of six months be extended to a reasonable period or the Courts may be empowered under Clause (4‑13) to extend the period of stay in cases where a petitioner is not at fault.

9. For the aforesaid reasons the above application has no merits and, it is, dismissed with no order as to costs.

M.B.A./S‑92/K Petition dismissed.

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