ISLAMABAD: In a landmark judgement, Chief Justice of Islamabad High Court (IHC) Justice Athar Minallah declared that overseas Pakistanis because of their unavailability cannot pursue their cases, especially in lengthy property-related disputes, so trial courts should consider this aspect before deciding such matters.

Justice Minallah restored the about 40 years old case filed by an expatriate which had been dismissed by the trial court because of his unavailability in Pakistan.

Hearing a petition filed by Mohammad Lehrasib against the order of an additional district and sessions judge, the IHC passed directions for hearing property-related disputes especially in which affected people were overseas Pakistanis.

The petitioner’s father, Akbar Hussain, had purchased a plot in F-6/1 which was transferred in his name by the Capital Development Authority (CDA).

Overseas Pakistanis cannot pursue their cases, especially property-related disputes, so trial courts should consider this aspect before any decision, chief justice remarks

Mr Hussain constructed a house and left for the United Kingdom (UK) where he got settled and the property was looked after by one of his nephews, Mohammad Banaras.

Mr Banaras rented out the property, received the rent in advance and went abroad in connection with his employment. On his return in 1977, he discovered that the property was in possession of Ghulam Ahmed Chaudhry.

When he lodged a complaint with the CDA, he was informed that the property had been transferred in the name of Tassaduq Hussain on April 2, 1977. The CDA said Tassaduq was son of Mr Hussain.

Subsequently, the original owner, Akbar Hussain, filed a written complaint with the Kohsar police stating Tassaduq was an impersonator and not his son. A suit was also filed in a court on Jan 20, 1979, seeking cancellation of documents, possession of the property and recovery of money.

The trial court on July 28, 1987, dismissed the suit filed by Mr Hussain on the sole ground that the defendant, Mr Chaudhry, was a bona fide purchaser. The former filed an appeal in Lahore High Court (LHC) which remanded the case back to the trial court on June 7, 2001.

The Supreme Court on April 18, 2002, upheld the LHC’s judgment and disposed of the petition directing the trial court to decide the suit within four months.

In the meanwhile, Mr Hussain died and Lehrasib as well as his mother filed an appeal in the LHC which was later transferred to the district judge of Islamabad. The petitioners were also overseas Pakistanis and settled in the UK.

They engaged senior lawyer Dr Babar Awan to pursue the case. However, Mr Awan became law minister after the 2008 general elections and their appeal was dismissed for want of prosecution on June 8, 2009.

Mr Lehrasib travelled to Islamabad in 2012 and was astonished to know that the appeal had been dismissed for non-prosecution. He had not received any notice nor was informed by his counsel that the appeal had been dismissed.

Subsequently, he filed another petition in the IHC in 2013. The counsel for Mr Chaudhry argued before the court that the petition was barred by time.

But Justice Minallah noted that it appears from the record that police officials had conducted investigations but could not find Tassaduq Hussain who had presented himself before the CDA as son of Mr Akbar Hussain.

The court observed that an overseas Pakistani having no one to pursue their litigation in Pakistan had no other option except relying on the counsel. It is ironic that a large number of litigation is pending in courts wherein overseas Pakistanis have alleged to have been deprived of their properties through fraud and deceit.

An overseas Pakistani is indeed vulnerable and exposed to fraud and remains at the mercy of those in whom he or she has reposed trust and confidence.

Citing various legal precedents, the court concluded that “the upshot of the above discussion is that the law of limitation is crucial for ensuring certainty as a matter of public policy so that there is an end to litigation and a litigant does not abuse the process by pursuing the matter for an infinite period of time.”

It added: “After the insertion of Article 10 A in the Constitution, observance of due process has become a guaranteed fundamental right and thus an order in violation of its principles is not sustainable in law because it is void and of no legal effect and such an order, even within the ambit of Article 168 of the Act of 1908, is a fit case for condoning the delay.”

An appeal is a valuable right and, therefore, its dismissal in a mechanical manner for want of prosecution would definitely be contrary to the settled principles of exercising discretion vested under the statute.

The court declared that the trial court order passed in 2009 was illegal and unambiguously shows that it was passed without taking all the relevant matters into consideration.

The court revived the case and remanded it to the trial court with a direction to hear the parties and decide the appeal at the earliest, preferably within 90 days.

Published in Dawn, May 21st, 2019