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Writ Petition No. 165 of 1960, decided on 15th February, 1963.
Treating property as evacuee property‑Bar contained in S. 3 not absolute‑Previous treatment of person or property as evacuee must be lawful and legal and not based on7 fraud or deception‑Order, obtained prior to 1‑1‑57 concerning; non‑evacuee character of property, alleged to have been obtained by fraud‑Could be set aside by Custodian in exercise of powers; conferred under S. 43 (4).
Kishanchand Jethanand and others v. Custodian of Evacuee Property and others P L D 1961 Kar. 589 ref.
Kerr : "Fraud and Mistake," 7th Ed., p. 3 ref.
‑Court bound to proceed on maxim: "he who seeks equity must do equity"‑Person guilty of fraud --Debarred from obtaining equitable relief‑Constitution of Pakistan, 1962, Art. 98.
Dingomal for Petitioners.
Saeed A. Shaikh for Respondent No. 1.
N. A. Farooqi for Respondents Nos. 3‑A and 3‑B.
Date of hearing : 7th February 1963.
This writ petition is directed in the main against the order of the Custodian of Evacuee Property, Karachi dated 22‑3‑1960, setting aside the order of the Additional Custodian dated 16‑11‑1955 and upholding the previous order of the Assistant Custodian dated 24‑2‑1955. The main contention of the learned Advocate appearing on behalf of the peti tioners is that the order of the Custodian of 22‑3‑1960 is illegal and without jurisdiction being in contravention of the express and clear provisions of section 3 of the Pakistan (Adminis tration of Evacuee Property) Act XII of 1957. In order to appreciate this contention of the learned Advocate and decide it, it is necessary to set out a few relevant facts.
2. The petitioner No. 1 Ahmad Khan is the son of one Khaliqdino and the petitioners Nos. 2 and 3 are two nieces of the said Khaliqdino who is now dead. In the year 1916 this Khaliqdino being in need of money raised a loan of Rs. 3,000 on behalf of himself and his two neices from one Surat Singh Harkishen Singh of Hyderabad and executed a Deed of Sale in favour of the said Surat Singh Harkishen Singh in respect of the agricultural lands measuring 185.8 acres situated in Deh Amri, Taluka Tando Allahyar, District Hyderabad. Although the document evidencing this transaction purported to be a Sale peed, the petitioners' contention is that it was in fact a mortgage transaction under which Khaliqdino and after his death the petitioners continued to remain in possession of the mortgaged lands which were to be redeemed on repayment of the loan of Rs. 3,000. Soon after Partition the said Surat Singh Harkishen Singh, the mortgagee of the aforesaid lands, migrated to India leaving the petitioners in possession of the said lands which they continued to cultivate and maintain themselves on its produce. On 2‑7‑1952 the petitioners presented an application to the Deputy Custodian, Evacuee Property, Hyderabad, praying for a declaration that they were the owners in possession of the said agricultural lands and that the document dated 12‑4‑1916 executed by the petitioners father on behalf of himself and the petitioners Nos. 2 and 3 was in fact a mortgage. This application was dismissed by the Assistant Custodian, Evacuee Property, Hyderabad, by his order dated 24‑2‑1955. The petitioners then preferred an appeal against this order to the Additional Custodian (Judicial) Evacuee Property, Federal Capital, Hyderabad and Khairpur Divisions, Karachi, which appeal was accepted by the Additional Custodian by his order dated 16‑11‑1955 in which he set aside the previous order of the Assistant Custodian, Evacuee Property, Hyderabad, and declared that the appellants‑petitioners were the owners of the above‑mentioned lands and the transaction of sale in favour of Surat Singh Harkishen Singh was merely a mortgage. The petitioners then submitted an application under section 17 of Ordinance XV of 1949 to the Deputy Custodian, Evacuee Property, Hyderabad, praying for a certificate granting them permission to get the lands mutated in their names in the Record -of‑Rights. On 18‑5‑1956 the Deputy Custodian, Hyderabad granted this application on the petitioners depositing Rs. 3,000 in his office in the account of the respondent. This order went on to say that‑
"on payment of the above sum the mortgage shall stand redeemed and the applicants will be entitled to get mutation effected in their names m the revenue record."
The petitioners deposited this sum of Rs. 3,000 and received a certificate from the Deputy Custodian, Evacuee Property, Hyderabad, dated 8‑6‑1956 acknowledging the receipt of the mortgaged amount of Rs. 3,000 due to Surat Singh Harkishen Singh and granting permission for mutation of the Record‑of -Rights in the names of the petitioners. Pursuance to this certificate the lands in question were mutated in the names of these petitioners.
3. It appears that some three years later in 1959 the Rehabilitation Authorities moved the Additional Custodian, Evacuee Property, Karachi for a review of the order of the Additional Custodian dated 16‑11‑1955 and on 8‑8‑1959 this officer accepted this revision application, set aside the order of the Additional Custodian dated 16.11‑1955 and declared the lands in dispute as evacuee property. A revision petition against this order of 8‑8‑1959 was presented by the applicants to the Custodian of Evacuee Property, Karachi, who in his order dated 22‑3‑1960 while setting aside the order of the Additional Custodian of 8‑8‑1959 for the reason that the Additional Custodian had no power to review his previous order proceed in exercise of his own suo motu revisional powers conferred upon him by subsection (4) of section 43 of the Pakistan (Adminis tration of Evacuee Property) Act, 1957 to set aside the Additional Custodian's order dated 16‑11‑1955, uphold the Assistant Custodian's order dated 24‑2‑1955 and dismiss the petitioners revision application. It is this last order of 22‑3‑1960 which is the impugned order in this matter.
4. Appearing on behalf of the petitioners Mr. Dingomal advanced a short argument that the revisional powers of the Custodian under section 43 (4) of Act XII of 1957 are limited by section 3 of the same Act and, therefore, the Custodian had no jurisdiction to pass his order of 22‑3‑1960. Mr. Dingomal pointed out that the language of section 3 creates a bar to the exercise of the revisional powers of the Custodian in this case and this contention, he said, is emphasised and accentuated by the opening words of section 3 namely: "notwithstanding anything contained in this Act". By reason of this section, no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee or as evacuee property on or after the said date. The petitioners have three orders all prior to 1‑1‑1957 and dated respectively 16‑11‑1955, 18‑5‑1956 and 8‑6‑1956, declaring the lands in question as non‑evacuee. In view of these three orders Mr. Dingomal argued that the door was finally shut, barred and bolted against the Custodian who had no power to re‑open this matter after 1‑1‑1957 and declare these lands as evacuee property.
5. On the other hand, it was contended by Mr. Saeed A. Shaikh appearing on behalf of the Custodian that the order of the Additional Custodian dated 16‑11‑1955 was procured as a result of fraud. The petitioners had produced certain receipts before this Additional Custodian showing that they had been paying revenue for this land and on the basis of these receipts the Additional Custodian came to the conclusion that this land had been in their possession throughout. But, it later transpired, that these receipts did not relate to the land in dispute but to some other land so that the Additional Custodian had been misled into passing his order of 16‑11‑1955. The correct position only came to light when this matter was before the Custodian, and therefore, the Custodian was fully empowered in the exercise of his suo moto revisional powers under section 43 (4) of the Act to set aside the order dated 16‑11‑1955 of the Additional Custodian. Mr. Shaikh referred us to the judgment of Munir, C. J., Lahore as he then was, reported in P L D 1950 Lah. at page 745 (sic).
6. In reply to this contention of the Custodian Advocate Mr. Dingomal made two further submissions : (i) he invited our attention to a ruling of a Division Bench of this High Court reported in P L D 1961 Kar. at page 589 which, he said, is on all fours with the facts of this case and (ii) he contended that if an order procured by fraud be a nullity, the fraud alleged must first be proved and the order in question then set aside. But, by reason of the bar contained in section 3, the Custodian has no jurisdiction at all to enquire into the fraud alleged and to reach a conclusion as to whether the fraud has been in fact proved.
7. Dealing with the first of these final two submissions made by the learned counsel on behalf of the petitioners we have ourselves examined the case relied upon by him and reported in P L D 1961 Kar. at page 589. We have laboriously considered the facts of the reported case and we find that although the respondent No. 3 in this reported case Mr. Abdul Khalik Abdul Razzak had moved the then Custodian of Evacuee Property for the setting aside of the orders of confirmation of the sale in favour of the Hindu purchasers in the exercise of his power of suo motu revision under section 43 of Act XII of 1957 on the ground that these were obtained by fraud and that the sale in their favour was a bogus transaction, yet, this allegation of fraud does not appear to have been stressed in the arguments before that Division Bench and we find no reference to it in the lengthy judgment delivered in that matter. Mr. Saeed A. Shaikh who appeared in this reported case also for the Custodian and, therefore, has in his possession the files relating to this matter from the Custodian's office, informed us that this allegation of fraud in this reported case was not even pressed before the Custodian. In these circumstances then, we are unable to derive any assistance from this reported case when deciding the present matter. Nor as contended by Mr. Dingomal can we take this reported case as an authority for the proposition that the bar contained in section 3 is absolute so as even to shut out an enquiry into an order obtained before 1‑1‑1957 concerning the non‑evacuee character of property even where such an order has been said to have been procured by fraud.
8. There remains for consideration the last point urged by Mr. Dingomal that even if it be admitted that the order or orders prior to 1‑1‑1957 declaring the property in question as non -evacuee are a nullity having been obtained by fraud, yet, this alleged fraud has first to be proved, the previous order or orders declared null and void and in order to do this the Custodian will of necessity have to embark upon an enquiry which by reason of the language of section 3, he is prohibited from doing. While considering this argument, it is of importance to remember that the Custodian was not only seized of this matter when passing his order of 22‑3‑1960, but that he had been moved through a Revision Petition filed before him by the petitioners themselves. The petitioners had presented this Revision Petition against the order of the Additional Custodian dated 8th August 1959 review ing suo motu his previous order dated 16th November 1955 and setting it aside. It was while dealing with this Revision Petition of the petitioners that the Custodian alighted upon the fraud that had been practised by them when securing the order in their favour of 16‑11‑1955 and the Custodian having come across this fraud while legally seized of this matter declared the order of 16‑11‑1955 to have been based on insufficient evidence and, A therefore, he set it aside in exercise of the powers conferred upon him by subsection (4) of section 43 of Act XII of 1957. We cannot bring ourselves to believe that the Custodian having, in these circumstances, come across this fraud was, by reason of section 3, rendered powerless in the matter and unable to take any action upon this discovery made by him. No doubt section 3 says that‑
"no person or property not treated as evacuee or as evacuee property immediately before the 1st day of January 1957, shall be treated as such after the said date."
But in our view, this "previous treatment" must be a lawful and legal treatment and not one based on fraud or deception. In his book on Fraud and Mistake (7th Edition) at page 3 Kerr says that‑
"Fraud vitiates everything, even judgments and orders of the Court."
Therefore, this previous treatment, if based on fraud, is bad and vitiated and, therefore, it must be reversed or set aside when it comes to light in circumstances such as those of the present case. We may add here that the petitioners' learned counsel did not dispute or deny that such a fraud had occurred all he contended was that the Custodian by reason of section 3 had no power or jurisdiction to enquire into it or to declare it as such.
9. Besides, there is a further consideration that weighs with us in dealing with this argument. It is this the petitioners have come to this Court in its writ' jurisdiction seeking equitable relief. Now, it is well‑known that
"He who seeks equity must do equity,"
and that any Court administering equitable relief is bound to h proceed on this maxim. The petitioners in practising this fraud cannot be said to have done equity ; nor can they be said to have come to this Court with clean hands. Consequently, as a result of their own conduct they have plainly debarred themselves from obtaining any equitable relief from this Court.
10. The result, therefore, is that this writ petition is dismissed with costs.
K. B. A.
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