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Civil Miscellaneous Application in Writ Petition No. 47 of 1962, decided on 17th June, 1963.
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--‑Ex‑parte hearing‑Petitioner running outside Court with knowledge of dates of hearing‑No ground for setting aside ex parte order‑Civil Procedure Code (V of 1908), O. IX. r. 13.
S. S. Shaikh for Petitioner.
Shah Jamil Alam for Respondents.
Dates of hearing : 23rd and 29th May 1963.
‑This writ petition was accepted by our ex parte order dated the 30th of January 1963. Before making that order, we had explained in our previous order of the same date that respondents Nos. 1 and 2 were served personally on the 4th of April 1962, but had not supplied their personal addresses thereafter. Respondent No. 3 was served on the 24th of March 1962. In view of these facts, we decided to proceed ex parte against all the respondents.
2. Nobody appeared before us to explain as to why no appearance had been made by the respondents or by any‑one on their behalf even to explain the reason of their absence.
3. After the writ petition was accepted, an application was made on the 1st‑of February 1963, for getting the ex parte order set aside. An affidavit was attached to the application con taining the explanation of the inability of respondent No. 1 to appear in Court in response to the notices which were issued to him. We may mention here that, according to his counsel, Mr. S. J. Alam, he was served firstly on the 29th of March 1962, for that same date. He allegedly came to Court and was informed that‑ the hearing had been adjourned to the 10th of April 1962. His visits were not known to this Court ; therefore, another notice was ordered, which was admittedly served on him on the 15th of January 1963 for the 30th of January 1963 ; that was the date on which the writ petition was accepted. His counsel has explained that he attended the Court on that date and found that we were dictating the judgment when he looked into the Court room. He rushed out of the Court room immediately and is said to have gone to the office of the Attorney‑General to induce a clerk, of his office to accompany him to Court. A clerk Ahmad Hasan, is said to have accompanied him and found that the case had been decided in favour of the petitioner. Having assured himself of the final decision of the case, he made the application, dated the 1st of February 1963, for getting the order set aside.
4. It is to be noted that in the affidavit which accompanied the application there is no other explanation of the failure of the respondents to defend the writ petition excepting that they were trying to collect information from Government departments as the case file on which the respondents intended to rely was not being made available to respondent No. 1. On the 15th of February 1963, respondent No. 1 has submitted another affidavit in support of his previous application of the 1st of February 1963. This affidavit does not improve the case for getting the ex parte order set aside.
5. On the 21st of February 1963, respondent No. 1 appears to have thought of a further ground for pressing his application for getting the ex parte order set aside. He, therefore, made another application on that date which is accompanied by a further affidavit. In this affidavit, the new ground taken by him is as follows :‑
"2. That in the petition very relevant facts within the knowledge of the petitioner were concealed. The film was seized by Customs Intelligence and a case was registered in Martial Law Court where the importers of the films namely Messrs Rainbow Films were prosecuted. The result of the prosecution was that the Special Military Court fined two partners of the importers Rs. 30,000 and Rs. 25,000 and ordered the confiscation of the film and dupe negative. Subsequently, fine was remitted but the order of confiscation remained."
6. The above facts and the contents of the affidavit taken together disclose two grounds in support of the request of respondent No. 1 for getting the ex parte order set aside. They are
1stly, that respondent No. 1 has been running around and keeping himself in touch with the proceedings of the Court, at the same time making efforts to collect information to contest the writ petition ; and
2ndly, that the ex parte order of this Court by which the writ petition was accepted had been, according to him, obtained by misrepresentation made by the suppression of facts.
7. We have, therefore, to see whether the above two grounds are adequate for setting aside our ex parte order. The first ground has obviously no substance, because running around outside the Court with the knowledge of the dates of hearing and without taking care to put in an appearance and to ask for adjournments, does not disclose any convincing kind of diligence in prosecuting the defence of the writ petition. On the contrary it shows that respondent No. 1 might have been trying to delay the decision of the writ petition by keeping himself in touch with the proceedings, yet keeping away from them so that he could get the maximum of time and then at the last moment by making an application to get the ex parse order set aside to get still more time. This amounts to abuse of the process of Court. We, therefore, attach no importance to the first ground.
8. The second ground has a weight irrespective of the conduct of the respondents, because we are not for a moment inclined to allow a wrong order obtained from us by misre presentation to remain on record. If we are satisfied that the order has been obtained from us in a manner which was fraudu lent in nature, then we are inclined, within the scope of the present enquiry, to go out of our way and set it aside in the interest of justice and fairplay. We have, therefore, to examine whether the allegation that there was misrepresentation is right or wrong.
9. The main contention of Mr. S. J. Alam in support of the alleged misrepresentation is that all the property that was seized and produced before the Military Court in the case against Abdul Hameed and Khursheed Safri was confiscated by that Court. They were tried by the Martial Court under C. M. L. Regulations Nos. 27, 46 and 20 (a). Regulation No. 27 relates to smuggling: Regulation No. 46 to making misdeclarations and Regulation No. 20 (a) is as follows :‑‑
"No person shall commit any act or be guilty of an omis sion or make a speech (a) which is to the prejudice of good order or the public safety ;".
Abdul Hameed and Khursheed Safri were acquitted of the charges under Regulations Nos. 27 and 46, but they were convicted under Regulation No. 20 (a) and sentenced to fine of Rs. 20,000 and Rs. 30,000 respectively : (See copy of the order of that Court produced by Mr. S. J. Alam). The sentences ended as follows :‑
"Seized property is confiscated to the State."
Subsequently the convicts made a mercy petition, which was partially accepted as follows :‑
"Sub : Trial by Special Military Court‑Khursheed Safri and Abdul Hamid in the case of Smuggling of Indian Film Yahoodi Ki Ladki.
Your mercy petitions dated 18th May and 19th May 1962, against your conviction by Special Military Court, Karachi under CMLA Reg. No. 20 (a) were placed before Commander 1 Corps, who on general review of the case, has been pleased to remit the whole of the fine awarded by the Court to you but the seized property of the case shall remain confiscated to the State."
(See photostat copy produced by Mr. Shaikh).
10. Mr. S. S. Shaikh has explained that the dupe negative, which was the subject‑matter of the writ petition, did not belong to Abdul Hameed and Khursheed Safri at the time of their prosecution and that it was produced by Qasim Haji Sattar, Partner of Messrs Mercantile Overseas Corporation who sub sequently filed the writ petition in this Court. This explanation shows, according to counsel that the dupe negative not being the property of the convicts, could not have been confiscated by the Military Court. We are not quite sure of the soundness of this argument, but we would not like to go into the question of the correctness of the order of the Martial Law Court if it had in fact confiscated the dupe negative. Our first anxiety, therefore, is to find out as to whether in fact that Court had confiscated the dupe negative or not.
11. Mr. S. S. Shaikh, therefore, emphasized the words which appear in the order made on the mercy petition as follows t‑
"Commander 1 Corps . . on general review of the case, has been pleased to remit the whole of the fine awarded by the Court to you (Abdul Hamid and Khursheed Safri) but the seized property of the case shall remain confiscated to the State."
He argued, firstly, that the seized property of the case did not include the dupe negative because, according to him, it was not produced in Court, and, secondly, even if it was produced and exhibited; it was not connected with the crime of which Abdul Hameed and Khursheed Safri were convicted. In this view, according to counsel, the dupe negative could not have been among the articles that were ordered to be confiscated.
12. Mr. S. J. Alam disputed the meaning given by Mr. Shaikh to the words the seized property of the case', and said that all that property which was produced before the Martial Law Court and exhibited by it was the case property, and that, in any event, the order of the Martial Law Court was that the entire property that was seized, whether it was produced in Court and exhibited or not, was to be confiscated.
13. As counsel for the parties were not in agreement on facts, we gave time to Mr. S. J. Alam to produce paper docu ments to our satisfaction in support of his contention. He was reluctant to undertake to do this, and has today produced the reply from the Judge Advocate‑General, dated the 28th of May 1963, which shows that the Judge Advocate‑General is not willing to allow Mr. S. J. Alam to inspect the record of the Martial Law trial, but has stated that any information called for by this Court would be supplied if a request in that respect was wade by this Court. Counsel, therefore, requested us to issue an order to the Judge Advocate‑General to produce the record of the Martial Law trial, but we do not find ourselves willing to comply with this request because at this stage, when the respondents are trying to get the ex parte order set aside, we do not think it to be our duty to enable them to make investigations for collecting information in support of their respective stands, particularly in support of the stand of the party who was negligent.
14. Mr. S. S. Shaikh came to the rescue of Mr. S. J. Alam at this stage. He said that he would not press his objection that the dupe negative was not produced in the trial by the Martial Law Court but would only argue from the legal point of view that even if it was so produced, it could not be confiscated. We have, therefore, heard counsel for the parties on the basis of the above concession made by Mr. S. S. Shaikh.
15. We have accordingly to decide whether the dupe negative can be said to have been legally confiscated by the Martial Law Court or not. The language, we should note, of the order that Court to which reference has been made above, and of the Order made by Commander 1 Corps on the mercy petition with respect to confiscation is not exactly the same and leaves us in doubt. The expression used in the Order of that Court is "seized property" and the expression used in the order of Commander 1 Corps on the mercy petition is "seized property of the case." The words of the case' in the latter expression, make a substantial difference. Mr. S. S. Shaikh has produced a photostat copy of the order of Commander 1 Corps but Mr. S. J. Alam has only produced a copy of the order of the Martial Law Court from the private file which was maintained by the prosecuting Advocate. In addition to this uncertainty, our attention has been drawn by Mr. S. S. Shaikh to the remit tance of fine by the Commander 1 Corps while retaining the penalty with respect to the confiscation of the seized property. This invites our attention to the rather anomalous situation that the substantive sentence has been remitted but the incidence of confiscation has been allowed to stand. Mr. Shaikh argued that even if confiscation was substantive evidence, the sen tence of confiscation and its combination with fine were not contemplated by M. L. Regs. Without expressing any opinion on his last two contentions we have to note that Abdul Hameed and Khursheed Safri had been acquitted of the charges of smuggling and misdeclaration and were convicted only with respect to an act contrary to good order under Regulation No. 20 (a). The stress, therefore, which is laid by the respon dents on smuggling and misdeclaration is not supported by the provisions of the law under which the confiscation took place.
16. Against the above background the petitioner had represented to us during the ex parte proceedings of the writ petition that Abdul Hameed and Khursheed Safri had been acquitted of the charges of smuggling and misdeclaration ; there was, therefore, nothing which vitiated the import of the dupe negative, and emphasized that the blame with respect to the main film having been washed away, no objection could be taken to the return of the dupe negative to Qasim, the petitioner. This stand of the petitioner does not appear to us, in view of what has been brought to our notice up to this time, to have been a misrepresentation in the true sense. It may be possible for the respondents to dispute the conclusions of the petitioner, but the disclosure of a disagreement in regard to conclusions of a nature which leaves a good deal in doubt cannot be considered to be the disclosure of misrepresentation or fraud.
17. The conclusion of the above discussion is that we are not satisfied that the petitioner obtained the ex parte order by which we have accepted the writ petition by misrepresentation and concealment of facts.
18. We would like to note here that we are not impressed by the manner in which the respondents have tried to defend this petition. Kamaluddin Ahmed, respondent No. 1, seems to be the only person who is keen on defending the writ petition and getting the ex parte order set aside, but no other respondent, no other Department nor the former Military Authorities appear to have been co‑operative with him in his efforts. He himself has not, in our view, acted in a manner which amounted to a fair conduct of the defence. Moreover, looking at his affidavit we find that he has nowhere disclosed that Abdul Hameed and Khursheed Safri were acquitted of the charges of smuggling and misdeclaration.
19. In conclusion of all that has been said above, we dismiss the application for setting aside the ex parte order. This con clusion was announced in Court on the 29th of May 1963. Its reasons are contained in this Order.
K. B. A.
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