PLJ 1987 AJK 76
Present : abdul majeed mallick, CJ MUHAMMAD KHALIQ-Appellant
vessus
ABDULLAH KHAN and 4
Others—Respondents
Civil Appeal No. 1 of 1987, allowed on 11-4-1987
(i) Ciyi! Procedure Code, 1908 (V of 1908) —
------ S. 9—Citizens—Civil rights of—Safeguard of—Civil courts—Juris diction of—Authority or tribunal created under special statute ousting jurisdiction of civil courts occasionally acting manifestly in arbitrary fashion — Held : Civil courts to assume jurisdiction in larger interest of equity, justice and good conscience to safeguard civil rights of citizers—Held further: Civil courts to ensure that citizens are not deprived of their civil rights by disregard of statute controlling such rights. [P. 82]E
(ii) Civil Procedure Code, 1908 (V of 1908)-
------- S. 9—Civil courts—Ouster of jurisdiction of ~ ES'ect of — Held : Civil courts to be competent to try all suits of civil nature unless their jurisdiction be ousted expressly or inapliedly —Jurisdiction of civil courts when ousted under special statute, action not to be entertained by such courts—Suit, however, to be competently tried to ascertain propriety and validity of order passed under special statute by tribunal or avithority as to whether such order passed in accordance with provisions of special statute or beyond its ambit, [Pp. 81 & 82>D
(iii) Cml Procedure Code, 1908 (V of 1908)
------ S 9—Tribunals created under special statute — Orders of—Suit against — Competent of — Held : Civil courts being required to jealoush watch and v.ifeguard rights of citizens, jurisdiction to be assumed by such courts to ensure that executive authority or tribunal created by special statute acts within ambit of four wails of special statute (creating such authority or tribunal)--Executive authonu or tribunal acting mala fide or in derogation to provisions c-f special statute or in arbitrary manner or transgressing its jurisdiction—Held . Such order to be struck down by decree or order of civil court-' P S21F
PLD 1970 AJK 44 : PI D 1959 Pesh. 136 ; AIR 1965
fir) Civil Procedure Code, 1908 (V of 1908)—
------ S. 9. read with New Mirpur Town Allotment of Land Act, 1964 — S. 10—Allotment-Cancellation of—Challenge to— Civil Court-Jurisdiction of—Authority of Allotment Committee challenged by plaintiff by ascribing conspiracy or deception as well as exercise of jurisdiction not vested under New Mirpur Town Allotment of Land Act, 1964—Held : Civil court to competently take cognizance of matter to satisfy whethir order of cancellation of committee and second allotment to defendant ii within Jurisdiction of committee not. [P. 83jG
(?) Civil Procedure Code, 1908 (V of 1908)—
------ O. Ill, Rr. 1 & 2—Recognised agent—Institution of suit by- Attorney not authorised to institute suit—Held: Subsequent ratifica tion (of his act to institute suit) by principal to validate his action. [P. 81]C
(Ti) Contract Act, 1872 (IX of 1872)—
—S. 196—Agent—Act of—Ratification of—Person authorised by principal to act as his attorney or agent in respect of particular property — Scope of such authority described in instrument—Held : Any incidental action to property of such attorney or agent to be binding on principal only when he accepts, acknowledges or undertakes by ratifying same —In absence of ratifaction of action constituting transgression of authority, principal not to be held responsible for such action—Even unauthorised action of attorney in suit or proceeding when ratified by principal (also) to be upheld. [P.80]A
(?ii) Contract Act. 1872 (IX of 1872)-
------ S. 196—Principal—Ratification of acts by-Definite rule of ratifica tion of acts of person by another person on whose behalf he acts laid down in S. 196 of Contract Act—Held : Principle of law enunicia- ted in such section to equally apply to acts of attorney if ratified by principal. fP. 80]B
AIR 194^ PC 66 ; AIR 1936
(viii) New Mirpur Town Allotment of Land Act, I960—
------ S. 10—Allotment—Cancellation of—Held : Allotment once com plete under Act, Allotment Committee or any other authority to have no power whatsoever to allot same plot to another person — Order of second allotment in such conditions to be without jurisdiction (and) as such mala fide. (P. 85]M
(ix) New Mirpur Town Allotment of Land Act, 1960—
—S. 10—Attotment — Cancellation of— Instalments — Defaullin payment of—Allottee making default in payment otynstalments or dues—Held: Committee to be free to cancel allotment provided default in payment be not bona fide or it be without sufficient cause —Default, on other hand, when found to be bona fide and genuine, allottee to be allowed to pay instalments or dues within time fixed by committee.
[P.
85]H
(x) Specific Relief Act, 1877 (I of 1877)-
------- S, 42 —Declaration—Suit for—Consequential relief — Omission to seek—Effect of—Hdd : It being within authority of court to allow consequential relief despite non-asking by plaintiff, suit for declaration under S. 42 of Specific Relief Act, 1877 not to be dismissed on account of omission to seek consequential relief. [P. 86JN
(xi) Allotment—
------- Delay in payment of dues—Condonation of—Effect of—Delay in payment of dues expressly condoned by specific order (of Committee)—Held : Payment of dues oricj acknowledged by issuance of certificate and delivery of possession, transaction of allotment (in favour of plaintiff) to be complete — Held further : Right in plot having been acquired on completion of transaction, plaintiff not to be deprived of his vested right without due course of law. [P, 8t]K & L
(xii) Audi tlterim part era—
——Rule of—Applicability of—Allottee not shown to have been issued show-cause notice in order to give him opportunity of hearing to explain reasons for d;lay in payment of dues — Held: Order of cancellation of allotment to be violative of rule of Audi alterant partem. [P. 85]J
Mr. M. S. Tariq, Advocate for Appellant.
Ch. Muhammad Taj Adjvocate for Respandents.
Date of institution : 1-1-1987.
judgment
The second appeal raises the propositions of :— (0 competence of attorney of plaintiff to institute the suit ; (ii) jurisdiction of civil court ; and (Hi) validity of allotment of plot in dispute.
Muhammad Khalid acquired allotment of plot No. 309, Sector F-l, measuring 2720 SFt (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. 1650/- 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 allotcd 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 m 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. 15.0CO-. 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 I he claim of t be plaintiff snd 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 trial 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 a^ 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
application^, raise construction, pay dues or fee and carry out incidental
actions, u 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 as aod 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 undemed 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
3. It is noticed that Muhammad Ashraf was delegated authority by Muhammad Kbaliq io 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 behalt, 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, XSuharnmad 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 \\a-, raised for the first time on July 8, 1981 through an application. The application wai opposed by the attorney by filing objections to it on July 26. As a safe-guard, Muhammad Khaliq, plaintiff who happened to t>c in England at that time, executed another power-of attorney on July 16, 1981. whereby he ractified all the acts, including institution of suit, by Muhammad Ashraf, his attorney. The power-ot-attorncv rati!ym,i; the past acts of attorney, was placed on the file of subordinate Court. Both the courts (ailed to apply mind to ratification of the authority as the judgments oi the subordinate Courts are silent en this point.
4, Term "powei of attorney'' is dehned 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 iu the name ot" the p:rson executing it. Fins definition, as a matter of fact, is given in consideration of payment of stamp duty on the documents. However, a distiction is made between the general power-oi-atu rncy and special power of attorney. As n- Controversy is raised in <ird," to ascertain tne nature of power-ot-aUorney as to whether it is gener.n ^r not, 1 need not go into depth of the proposition. At this stage, the obvious question is as to whether in absence >>S specific authority to lastitute 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 scupe of such authority is described in an instrument, anv incidental action to the property of such attorney or agent is binding on tbe principal only when he accepts, acknowledges or undertake by .aUt'ving the same, in absence of ratification of such ati action constituting tiansgresbion of authority, the principal cannot be held responsible for such an action. On this premises, it is always deemed expedient to uphold c%en ,ta unauthorised action of attorney in a Mill or ptov;;things, when it is so !*uiied by the principal. Mr. Tarkj, toe learned. Counsel tot the appellant. =>;•, ueJ my attention to Section 19t> 1,1 the Co-nr.ict Act and emphasised iii.a under the provisions of this Section. Uv-- pru.cipa! cd<) r.ur.i> an act o Section 196 posmia;, •> ilv.it \\hcrj u,t: are done t>: another, but, wuhjut in-- ko.;wieage or authority or to disowu such ,cis is lie ratitiss them, the they have been peiiorrutd n\ b;i authority. 11 (Act lay a definite rule of ra( whose behalf he ,;cis. 'applies to the acts 01 atd'rney -i rutiiied by the pru
5. In.J. R, Bliaam Smuika JUs/iA case (AIR )943 PC 66), a decree was transferred by assignment but the assignee enjoyid no authority at the time of assignment of decree. However, his action was ratified by the principal subsequent to the transaction. It was obwrvsd that the question whether ratification would in lavs 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 «as 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 aquivalent to previous authority: it may be express or it may be effected impliedly by conduct.
In .Sw.'i'/Jrij ,v<»/m case (AIR 193<i
"Where the supposed ratification relates to acts us to which there is no pretence of any priori 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 riie transaction and has a complete ratroactive efficacy."
In Allah liakiiyi's case (AIR 1926 Lahore 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. I' 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 apppeal has authority to file the appeal.
In Khyam films' case (1982 CLC 1275), it was observed that when inspite 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 would still be a validly instituted suit,
I approve the rule of ratification as enunciated in the aforesaidi authorities In nut-shell, Muhammad Ashraf though not authorised toL institute the suit, subsequent ratification, of his act to institute the suit, byl the principal has validated his action The finding of the subordinate! courts on this point is not sustained.
ft. The next point argued b> Mr. Tanq relates to jurisdiction of the civil court to try the suit, li 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 aot 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 povisions of the Act, The contention was opposed by Mr. Taj who contended that the jurisdiction of the civil Court was exprersly barred under Section 8 of the Act. Thus, the civil court was not empowered to look into the propriety of ihe impugned order.
7, The concensus is that civil courts
are competent to try all .suits ot| civil nature unless jurisdiction is ousted
expressly or impliedly. Whenever! under a special statute, the jurisdiction of
civil courts is ousted, civil couttj jcannot entertain an action
but it is
competent to try a suit to ascertain Jpropriety
iind 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 iu 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
8. In Ghulam Hussain's case (PLD 1970 AJK 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 of 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 (PLD 1959 Peshawar 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 autborhy to give a verdict whether the Depaty Commissioner had acted under Section 8 or not, or his act was fraud on the statute. Sections 10 and 60 which clearly hy 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 Depuu Commissioner was ultra vires, malicious, and a fraud on the >tatute,':
In Joi Singh's case (AIR 1965 Punjab 262), the question of bar of jurisdiction contained under the Punjab Gram Panchayat Act, 1^53, 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* (PLJ 1983 Lahore 236), 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
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.
Sections 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 jurisdic tion, 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 pratected
by the provisions of the Act, tha Court
is fully authorised to strike down
the order of second allotment for its
having been passed
withous jurisdiction. In the
case in band,
plaintiff has challenged the
authority of the Committee by ascribing conspiracy or decep tion as well as
exercising jurisdiction not vested by
the Act. It is, there
fore, 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 C >mmittee 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, Also see PLJ 1987 SC 160 produced by the defendant-respondents, that the plaintiff was duly allotted the plot in question but bis allotment was cancelled due to the non-payment of arrears of price of plot. Therefore, apart from documentary^, evidence produced on behalf of the plaintiff, the allotment of plaintiff is "" even accepted to the witness of the defendant?. 1 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, Ex. PA. acknowledgment of payment of piice, Ex. PB, delivery of possession, Ex. PC, certificate of the Bank acknowledging piyment of price of the plot by plaintiff, Ex. PD, order of condonation of restriction of payment of price within stipulated period, Ex PE and the report of the Municipal Engineer, Ex. PE/I. 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) (//") 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 Ex. PA, PB, PC, PD, PE and PE/1 are certified true copies of the originals and certificate is given by the Assistant 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 Ex PE. It was after condonation of the condition that the plaintiff paid rest of the price in the sum of Rs 16l5/-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 be stipulated period, impliedly tantamounls 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 chntrolled 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 Comtnittes, 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 bonafide or without sufficient cause, it is free to cancel the allotment. Conversely, when the default is found bonafide and genuine, it may not cancel the allotment and allow the allottes 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 Committes 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 or Abdullah Khan. The order of second allotment, esq. DA, 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 ths following reasons :
(i) The allottee-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 alieram partem ;
(if) 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 ths dues and once the payment of dues was acknowledged by acceptance of price and issuing a certificate to that effect, vide Exh. PB, and delivering possession to plaintiff, it completed the transaction of allotment in favour of plaintiff ;
(Hi) Moreover, from practice it appears that non-payment of arrears or dues, rarely results in cancellation of allotment. According to the testimony or 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 oa completion of transaction of allotment, the plaintiff acquired a right in the plot. The plaintiff could not bs deprived of his vested right in the plot without due course of law. The provisions of tbs 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 malafide. 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 derogation to the provisions of the Act, at such without jurisdiction, I have no hesitation to hold that Civil Courts are competent to examine the impugned action in order to redress the grievance of plaintiff. The order of second allotment being malafide and without jurisdiction, is unsustainable.
15, id 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 ths defendant No. i occupied the plot. Under the changed circumstances, plaintiff moved an application io this Court for granting him consequential relief in the shape of restoration of possession. Under Section 42 of the Specific Relief Acts it is provided that when consequential relief flows from the main relief, plaintiff cannot be denied such relief. By now, it is settled ruic of iaw that a suit fos , declaration covsred by Section 42 of the Specific Relief Act, cannot be dismissed an 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 1 have came to the conclusion that plaintiff is a bonafide allottee of the plot an«J the' iccotsd aiiettsem is «/:*bo'.it jurisdiction, the plaintiff is found entitled to consequential relief by rcstorsnor* cf pvs-ess'-^R of the plot to him,
16. In vie\v of the reasons listed above, the appeal succeeds. The orders of the subordinate Courts arc set aside and the suit is decreed. Plaintiff is the lawful allottee of plot No, 309, Sector F —1, Mirpur City. Second aHotrneot of Abdullah Khao, being ultra vires, 5>ss no effect on the interest and titie of plaintiff. Plaintiff » equally entitled is restoration of poueMton of the plot. No order as to costs,
(TQM) Appeal allowed.