PLJ 2002 SC (AJK) 154

specified area from District "B" and inclusion of the same in District "P^H-Appellant's constitutional petition against the same was dismissed-Validity-Plea of appellants that area in question, has been included in District "P" arbitrarily and with mala fide intentions was falsified by the fact that such notification would take effect after general elections-Plea of non-publication of such change in official Gazette having been raised for the first time in replication filed by appellants before High Court, was rightly rejected by the High Court in as much as, such plea had not been taken in plaint and that replication was strictly not a part of pleading as a result whereof, respondents had no opportunity to file their reply—No pleading subsequent to written statement other by way of defence of set off can be filed by a party as a matter of right-Party to proceedings cannot be allowed to take plea inconsistent with the plea taken earlier and admission once made by a party cannot be revoked without the leave of the Court-Writ petition against inclusion of specified area was although filed by appellants in their representative capacity, yet necessary ingredients of O. 1, R. 8 C.P.C. have not been complied with-Appellants do not represent popular will of the people as they were neither representatives of people of the area, nor they represent any of the constituency of Assembly from District "B" from which such area has been excluded-Finding of High Court was maintained in circumstances.

[Pp. 158, 159 & 161] A, B, C & D

PLD 1974 Lah. 458; 1997 SCR 318; PLD 1992 SC (AJK) 45; PLD 1995 SC

(AJ&K) 47; 2000 SCR 273; 1993 CLC 31; AIR 1943 Lahore 241;

PLD 1978 Lah. 391 and PLD 1986 Lahore 140 ref.

Syed Nazir Hussain Shah Kazmi, Advocate for Appellants.

Mr. Irndad Ali Mallick, Advocate for Respondents Nos. 7 to 10, 13 to 16, 19, 20, 22 & 23.

Date of hearing: 11.10.2001.

judgment

Muhammad Yunus Surakhvi, J.-This appeal, with the leave of the Court, has been directed against the judgment passed by the High Court on 26.1.2001, whereby the writ petition filed by the appellants herein was dismissed.

2. The necessary facts, giving rise to the present appeal, are that the appellants are residents of village Singola, Tehsil and District Bagh. The dispute between the parties started when on the representation of the people of village Singola the Government issued a Notification No. 2035-45/1996 dated 20.6.1996 through which three Mauziat, namely, Northern Singola, Southern Singola and Central Singola, were excluded from District Bagh and included in Tehsil Rawalakot of District Poonch. Feeling aggrieved by the aforesaid notification, the appellants herein filed a writ petition before the High Court of Azad Jammu and Kashmir, which was dismissed on

20.1.2001. It is the aforesaid judgment of the High Court which is the subject matter of present appeal.

3. In support of appeal it was vehemently contended by Syed Nazir Hussain Shah Kazmi, the learned counsel for the appellants, that the village Singola had been the part of Tehsil Bagh since long in accordance with its geographical location and political background and it should have been kept as a part of Tehsil Bagh. There was no popular demand from the inhabitants of village Singola for the delimitation of the said village. The High Court without any justification brushed aside the contention of the appellants regarding the publication of notification in official Gazette. It was wrongly held by the High Court that the said plea was raised through replication which was strictly speaking not the part of pleadings of the parties, therefore the respondents could not repudiate the said plea. According to the learned counsel for the appellants it is well settled principle of law that a legal point which goes to the root of the case can be agitated at any time and even before the Supreme Court for the first time. Therefore the impugned judgment being against the pronouncements of the apex Court is liable to be set aside on the said sole ground. The learned counsel further contended that the High Court erred in law to hold that Rule 23 of the Rules of Business was not applicable as the matter was not of vital public importance. The High Court, according to the learned counsel for the appellants, should not have substituted its own opinion with that of the will of the people who were directly affected by the notification and who treated the said notification as an assault on their political right. The learned counsel further contended that the matter was not presented before the Cabinet, and the same could not have been assented to by the Prime Minister. The learned counsel also submitted with vehemence that one of the Members of the Standing Committee, i.e. Raja Muhammad Yasin Khan, the then Minister for Usher and Zakat, who belonged to District Bagh, did not agree with the proposal of Members of the Committee. In this view of the matter, it was urged that the impugned judgment of the High Court being violative of law be set aside. The learned counsel further contended that the said notification was politically motivated in order to give undue advantage to the candidates in the election, as such the same was based on the mala fides of the respondents. The learned counsel for the appellants contended that the notification which is not published in the official gazette is a nullity in the eye of law. The learned counsel contended that the respondents could have filed their additional written statement under Order VIII, Rule 9 C.P.C. but they failed to do so. The learned counsel for the appellants placed reliance on Mst. Fattan Bi and 2 others vs. Fateh Muhammad and 6 others [PLD 1974 Lah. 458], Muhammad Tariq Khan vs. The State and another [1997 SCR 318], Barkat, Hussain vs. Sardar Alisri Khan [PLd 1992 SC (AJK) 45], Azad Govt. of the State of Jammu and Kashmir and 3 others vs. Nafees Bakers and 2 others [PLD 1995 SC (AJK) 47] and Abdul Ghani Farooqi vs. Chairman AJ&K Council and 2 others [2000 SCR 273].

4. in reply it was contended by Mr. Imdad Ali Mallick, the learned counsel for the respondents, that in view of popular demand of the
inhabitants of village Singola, the then Government took up the matter. Initially the Local Union Council passed the resolution for the inclusion of
three Mauziat of village Singola in Tehsil Rawalakot. Thereafter a CvJinmittee was constituted to look into the aforesaid matter which also
included Members of Cabinet which unanimously recommended that the same may be included in Rawalakot District. The inhabitants of the area
through numerous resolutions demanded the aforesaid areas to be included in Rawalakot District. The Government after thorough inquiry reached at a
conclusion which culminated into the impugned notification. Thus the order passed by the High Court did not suffer from any infirmity or illegality as the
notification was issued under Section 6 of the Land Revenue Act as applicable in Azad Jammu and Kashmir. The learned counsel further
maintained that the Prime Minister is competent to issue such a notification which was issued after consideration of relevant facts and law. The learned
counsel urged that from the notification itself it appears that it was sent for publication to the Printing Press and the presumption of law would be that
the official acts are performed in a lawful manner. However, the point of publication of notification in the official gazette was not raised in the writ
petition, therefore the respondents had no opportunity to repudiate the said claim of the appellants. The learned counsel pressed into service the
submission that the points raised during the arguments were not pleaded in the writ petition. The learned counsel also contended that in the replication
a new point, if at all, could have been raised with the permission of the Court so that the opposite party should have been given chance to repudiate the
said point.

5. We have given our due consideration to the arguments-advanced by the learned counsel for the parties and perused the relevant record. It
may be stated that the claim of the appellants is that village Singola is a part of Tehsil Bagh since long time and it was included in Tehsil Rawalakot
arbitrarily and with mala fide intentions in order to give undue benefit to the respondents or the political elements in the coming elections, whereas
according to its geographical position and its location and having common features with the residents of District Bagh could not have been included in
Rawalakot District a few days before the general elections. The argument is not tenable for the simple reason that it has been provided in the notification
itself that it shall take effect after the general elections. Therefore the contention that the impugned notification was issued with a mala fide
intention of giving undue advantage to the respondents in the coming elections has no legs to stand upon. The other contentions raised by the
learned counsel for the appellants is that the impugned notification was not published in the official gazette, as such the same was a nullity in the eye of
law. Reliance in this regard was placed on a reported case of this Court titled Muhammad Tariq Khan us. The State and another [1997 SCR 318], wherein
it was observed that law which creates rights and obligations must be made

known to public at large. It must at least be published in official gazette. Private or limited circulation of an Ordinance cannot be accepted as promulgation. The learned counsel for the appellants cited another authority titled Mst. Fattan Bi and 2 others vs. Fateh Muhammad and 6 others [PLD 1974 Lah. 458] wherein it was observed as follows:

"The last point may be taken first. There is an unequivocal admission in the replication about the ancestral nature of the property. There is nothing on the present record that this admission is factually incorrect. This admission is in the replication which is a better statement of plaint and is a part of the pleadings. In the absence of there being anything on record to show that the admission is incorrect the respondents cannot be allowed to go back upon it and to urge anything to the contrary now."

We will be adverting to this authority in the later part of the judgment of the Court as the authorities cited from the other side are much more relevant to the proposition involved in the present case.

6. It may be clarified that the point with regard to the notification having not been published in official gazette was not raised in the writ petition filed by the appellants but the same was for the first time raised in Para No. 6 of replication of the appellants. Thus the respondents had no opportunity to repudiate the aforesaid point which was not raised in the writ petition. It was observed by the High Court that the replication is strictly not a part of pleading as such the respondents had no opportunity to file their reply. Similarly the point that the recommendations of the Cabinet's Sub-Committee were also not published in the official gazette was not even raised in the replication. Thus the respondents had no opportunity to file their reply. The point with regard to the publication of recommendations of Cabinet's Sub-Committee was raised during the arguments. Thus it was opined by the High Court that the point not raised in the writ petition could not be resolved as the other party had no opportunity to reply it. The learned counsel for the appellants, as stated earlier, contended that under Order VIII, Rule 9 C.P.C., the respondents were at liberty to file their additional written statement and to repudiate the said point but having not repudiated the said point it shall be deemed that the same stands admitted by them. For proper perception of the proposition involved, we deem it expedient to reproduce the provisions of Order VIII, Rule 9 C.P.C. which read as follows:-

"Subsequent pleadings.--No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court thinks, fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same."

The bare reading of Order VIII, Rule 9 C.P.C. enables the Court to require a written statement or additional written statement from any of the parties at

any time. After the plaint is amended, the Court should call upon the defendant to file an additional written statement if he chooses to do so, particularly after the newly added defendant's plea in his written statement. In fact it is the duty of the Court to have given an opportunity to the original defendant after the plaint has been amended and new pleadings have been brought on record. The object of the Code is to decide rights of the parties and not to punish thf m for the mistakes committed in the conduct of their cases. A party cannot be allowed to take a plea inconsistent with the plea taken earlier and the admission once made by a party cannot be revoked without the leave of the Court. No pleading subsequent to the written statement other than by way of defence of set-off can be filed by a party as a matter of right.

In a case reported as Muhammad Ibrahim us. Sindh Industrial Trading Estate Limited and 3 others [PLD 1985 Kar. 95] it was observed that no pleadings subsequent to written statement of defendant other than by way of defence of set-off could be filed by a party as a matter of right. Such pleadings could be filed only with the permission of the Court after making out a case for filing the same or the Court may direct a party to file written statement or additional written statement.

In a case reported as Syed Mohsin Raza Bukhari and 4 others vs. Syeda Azra Zenab Bukhari [1993 CLC 31] it was observed that the replication is a supplement of plaint and is also supposed to clarify such ambiguities which are left in the plaint or pointed out by the defendant in his written statement and the altogether a new case cannot be allowed to be presented in a replication as there will be no opportunity for the defendant to convert such a new case set up in the replication. The same view finds support from cases reported as Zamani Begum vs. Fazal-ur-Rehman [AIR 1943 Lah. 241], Muhammad Sarwar vs. Abdul Lateef [PLD 1978 Lah. 391] and Mudassar Hussain us. Mst. Kaniz Fatima [PLD 1986 Lah. 140].

7. The bare reading of Order VIII, Rule 9 C.P.C. provides that a new plea cannot be taken even in the written statement except with the
permission of the Court; what to talk of the replication because when a new point is raised in the replication the opposite party has no chance to rebut
the same. Therefore in our considered view the High Court rightly observed that a plea not raised in the petition, the respondents had no opportunity to
repudiate the same. Similarly a point which has not been raised in the pleadings cannot be raised for the first time before the Supreme Court.

8. The authority cited by the learned counsel for the appellants titled Muhammad Tariq Khan vs. The State and another [1997 SCR 318],
having nothing common with the facts of the case in hand is distinguishable. Similarly the other authorities, referred to by the learned counsel for the

appellants, on the point that the point which goes to the root of the case can be allowed to be raised with the permission of the Court has also no application in the instant case as no such permission was sought from the Court for raising a new plea in the replication by the appellants.

9. The main claim of the appellants in their writ petition had been that due to geographical position and historical background the three
Mauziat of Bagh which were included in District Rawalakot were part of Tehsil Bagh but this point was not substantiated by bringing any evidence
on record supporting the case of the appellants. The executive authority of the Azad Jammu and Kashmir Government, as pointed out by the High
Court, is exercised in the name of President by the Government consisting of the Prime Minister and the Ministers, which acts through the Prime
Minister who is the Chief Executive of Azad Jammu and Kashmir. In the performance of his functions, the Prime Minister may act either directly or
through Ministers under Section 12 of the AJ&K Interim Constitution Act, 1974. The Prime Minister issued the aforesaid notification keeping in view
the circumstances prevailing therein and the aforesaid area was included in Tehsil Rawalakot under Section 6 of the Land Revenue Act as applicable in
Azad Jammu and Kashmir. The contention raised by the learned counsel for the appellants that the matter involving vital political policy under Rule 23 of
the Rules of Business should have been placed before the Cabinet, despite the fact that the same was placed before the Cabinet's Sub-Committee has
rightly been repelled by the High Couit as the same was not raised in the pleadings. Even otherwise there was hardly any political importance
involved to place the same before the Cabinet.

10. So far as the matter entrusted to the Sub-Committee is concerned, the previous Government headed by Sardar Muhammad Abdul
Qayyum Khan, constituted a Committee, consisting of certain Cabinet Members; Sardar Muhammad Sayab Khalid, Minister for Electricity, Raja
Muhammad Yasin Khan, Minister for Usher and Zakat and Kh. Muhammad Sadiq Dar, Commissioner Muzaffarabad Division, to make report on the said
matter which recommended that three "Mauziat" of village Singola may be included in Tehsil Rawalakot and be deleted from Tehsil Bagh. The
contention of the learned counsel for the appellants that Raja Muhammad Yasin Khan, Minister for Usher and Zakat, did not sign the
recommendations of the Committee but at the same time he never objected to the inclusion of certain "Mauziat" of village Singola in District Rawalakot.
Therefore the Prime Minister of the time accorded his sanction. The Prime Minister in view of prevailing situation could pass such orders even without
asking for any report from any Sub-Committee.

11. It may also be highlighted that on the basis of popular demand of the people of village Singola all the seven Members of the Union Council
Singola unanimously passed a resolution on 23.10.1994 and placed their demand before the Azad Kashmir Government that whole of the village

Singola may be attached to Rawalakot. The resolution of seven Members of Union Council is annexed with the written statement as annexure 'A'. Even after the issuance of notification dated 20.6.1996 the successor Government headed by Barrister Sultarf Mehmood Chaudhry issued another notification on 19.12.1996 and constituted another Committee for reconsideration of earlier notification and to submit its recommendations. The said Committee was consisting of Sardar Qamar Zanian, Minister for Education, Sardar Muhammad Ashraf Khan, Member Legislative Assembly Poonch, Deputy Commissioner Poonch and Deputy Commissioner Bagh. The said Committee enquired into the matter again and heard the people of village and obtained their consent. Resultantly the people of Singola strongly recommended that their area should be attached with Rawalakot. Thus another notification was issued on 19.12.1996 which fully justified the earlier notification dated 20.6.1996. As well all know that Sardar Qamar Zaman was one of the strongest Ministers in the Cabinet of Barrister Sultan Mehmood Chaudhry and particularly representing the District Bagh as a Member of Legislative Assembly and then as a Minister for Education. Had the previous notification dated 20.6.1996 been against the interests of District Bagh at least he would not have approved the previous notification dated 20.6.1996 which was issued by a Government which was totally opposed to the Government headed by Barrister Sultan Mehmood Chaudhry. Even the Committee constituted by the Government headed by Barrister Sultan Mehmood Chaudhry approved the previous notification issued by the Government of Sardar Muhammad Abdul Qayyum Khan on 20.6.1996 vide notification dated 19.12.1996. The notification dated 20.6.1996 acted upon and another notification was issued on 31.3.2001, whereby village Singola has been included in Constituency No. 3 of Rawalakot, Poonch.

12. It also appears that the writ petition was filed by the appellants in their representative capacity but the necessaiy ingredients of Order I,
Rule 8 C.P.C. have not been complied with. The appellants,-in our view, do not represent the popular will of the people as they are neither
representatives of people in any of the Union Councils of Singola nor they represent any of the Constitutency of Assembly from District Bagh.
However, we are not going to dismiss the writ petition filed by the appellants on this ground as the same was not attended to by the High Court. We also
therefore refrain from making comments on the filing of writ petition in a representative capacity.

13. So far as the other points are concerned, the High Court, in our view, committed no illegality in dismissing the writ petition filed by the
appellants. The appeal having no merits in it, therefore, stands dismissed with no order as to costs.

(A.P.) Appeal dismissed