(a) Income Tax Ordinance (XXXI of 1979)----

----Ss.162 & 146---Civil Procedure Code (V of 1908), S.9 & O. VII, R.11-- Specific Relief Act (I of 1877), Ss.42 & 56---Bar of suits in Civil Courts-- Where Legislature had established a special Forum or Tribunal for redress of grievance, bringing such grievances before Civil Court after bypassing remedy provided under relevant statutes, would be contrary to the spirit of such special law and S.9, C.P.C. would come into play and no suit would lie---In order to maintain a such challenging any order passed by any Authority duly constituted under Income Tax Ordinance, 1979. a plaintiff wars required to show: mala tides on part of Authority which had passed order that was subject-matter of suit; any illegality which was patent on face of record and lastly absence of jurisdiction to pass order under challenge.

Jewan and222 7 others v. Federation of Pakistan and 2 others 1994 SCMR 826; Abbas S. Shroff and another v. Miss Farzana and 4 others Suit No. 1118 of 1990; Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29; The Batala Engineering Co. Ltd. v. The Income- tax Officer, Lahore 1973 SCMR 282; Pooran Mal v. Director of Inspection, Income-tax, New Delhi and others-(1974) 93 ITR 505; Usman Panjwani and another v. Government of Sindh and another 1996 CLC 311. The Province of East Bengal v. Dewan Abdul Alim PLD 1960 Dacca 274; The State of Tripura v. The Province of East Bengal AIR 1951 SC 23; Income-tax Officer and another v. M/s. Chappal Builders 1993 SCMR 1108, Al-Ahram Builders (Pvt.) Ltd. v. Income-tax Appellate Tribunal 1992 PTD 1671; The Commissioner of Income-tax, Karachi and 2 others v. M/s. N.V. Philip's Gloeilampenfabriaken PLD 1993 SC 434; Regional Commissioner of Income-tax, Corporate Region and 2 others v. Shafi Muhammad Baloch 1998 SCMR 376; Dayaram Ramdas v. Secretary of State AIR 1925 Sindh 130; Raleigh Investment Company Ltd. v. The Governor-General-in-Council PLD 1947 PC 19 = AIR 1947 PC 78; Ravi Paint Colour and Varnish Works Ltd. v. Federation of Pakistan PLD 1954 Lah. 551; Nagina Silk Mills Ltd., Lyallpur v. Income-tax Officer, Lyallpur PLD 1963 SC 322; Zafarul Hasan v. The Republic of Pakistan PLD 1960 SC 113; Abbasia Cooperative Bank and another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3; Dhulabhai etc. v. The State of Madhya Pradesh and another AIR 1969 SC 78 and Raja Ram Kumar Bhargava v. Union of India AIR 1988 SC 752 ref.

(b) Income Tax Ordinance (XXXI of 1979)----

----S.162---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2-- Specific Relief Act (I of 1877), Ss.42 & 56---Bar of suit in Civil Courts-- Interlocutory application---Adjudication---Court should avoid giving any final opinion while deciding an interlocutory application, but in order to ascertain whether suit filed by plaintiff fell within purview of 5.162 of Income Tax Ordinance, 1979. it was imperative to examine whether prima facie facts as alleged in plaint were such which could constitute mala fide and illegality on part of Income-tax Department.

Federation of Pakistan v. Saeed Ahmed Khan and others PLD 1974 SC 151; Pir _ Sabir Shah v Federation of Pakistan and others PLD 1994 SC 738; Senairam Doongarmal Agency (P) Ltd. and others v. K.E. Johnson and others (1964) 52 ITR 637; Pooran Mal v. Director of Inspection (Investigation), Income-tax and others (1974) 93 ITR 505 and AI Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1992 PTD 1671 ref.

(c) Income Tax Ordinance (XXXI of 1979)

----S.146---Power to enter and search business premises---Prerequisites to invoke provisions of S.146, Income Tax Ordinance, 1979---There must be an Authorised Officer including Inspecting Additional Commissioner or a Deputy Commissioner or any other officer duly authorised by Central Board of Revenue or an Inspector of Income-tax, if authorised in writing by Inspecting Additional Commissioner or Deputy Commissioner, such authorised person was permitted to enter premises where a person carried on his business; entry and search of business premises must be for purpose of making, an inquiry---Powers so conferred on officers of Income-tax Department, were to search business premises and to inspect any book of accounts or documents to stamp such accounts or to take extracts or copies thereof; to impound such documents or accounts and to retain them for a limited period which might be necessary for examination or for purpose of prosecution and to make an inventory of articles found in premises ---Income tax Department was not competent to remove each and every book of accounts, documents, and other record pertaining to business transaction, vouchers, computers and disks that being not the spirit of S.146 of Income Tax Ordinance, 1979---Prior to removing any book of accounts or documents from business premises an inquiry has to be pending against person from whose business premises such things were to be removed---Before impounding any accounts or documents an element of satisfaction of concerned authority to the effect that such record and documents were necessary for making any person or company liable to assessment or for reopening of assessment order or that case of concealment must exist---Provisions of S.146 of Income Tax Ordinance, 1979 do not authorise Income Tax Department to remove entire business record of assessee and, thereafter, to fish grounds from said record to make an assessee subject to reopening of a case or make such assessee liable for concealment.

Nawab Iftikhar Hussain Khan Mamdot v. Ghulam Nabi Corporation Ltd. PLD 1971 SC 550; Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lah. 384; Standard Hotels (Pvt.) Ltd. v. M/s. Rio Centre and others) 994 CLC 2413; Board of Control for Cricket in Pakistan v. K.D.A. 1997 CLCJ95; Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684; Abdul Rahim and 2 others v . Messrs United Bank Ltd. of Pakistan PLD 1997 Kar. 62; Abubakar Saley Mayet v. Abbot Laboratories and another 1987 CLC 367; Shahab-ud Din and others v. Mst. Mariam Bibi and others 1995 MLD 45; Dumez Boric v. Int. Forwards NLR 1983 UC 184; Secretary. B & R Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625; Province of the Punjab and others v. Muhammad Hussain and others PLD 1993 SC 147; Alavi Sons Ltd. v. Government of East Pakistan and 2 others PLD 1968 Kar 222 and Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others PLD 1978 Lah. 113 ref.

(d) Qanun-e-Shahadat (10 of 1984)---

----Art.129---Presumption of correctness---Presumption of correctness was attached to all acts done by Government functionaries, but such presumption was rebuttable.

Majid Ali Naqvi v. Additional District Judge and another 1970 SCMR 375 ref.

(e) Mala fides---

---- If sufficient material was produced before a Court and a tentative view was formed by a Court that such material constituted an element of mala fides on part of Authority, suit would be maintainable subject to proof of such mala fides burden of which lay upon plaintiff.

(f) Income Tax Ordinance (XXXI of 1979)---

----Ss. 3, 5 & 146---Power to enter and search business premises---Jurisdiction of Income-tax Officer---Income-tax Officer, being below, the rank of Income-tax Commissioner, Inspecting Assistant Commissioner or Appellate Assistant Commissioner, would not be in a position to declare acts of superior Authorities to be violative, of provisions of Income Tax Ordinance, 1979 or to declare such act violative of Fundamental Rights of assessee.

Commissioner, Income Tax v. Hamdard Dawakhana (Waqf), Karachi PLD 1992 SC 847 and The Commissioner of Income-tax, Karachi and 2 others v. Messrs N. V. Philip's Gloeilampenfabriaken PLD 1993 SC 434 ref.

(g) Civil Procedure Code (V of 1908)---

----O. VII, R.11---Rejection of plaint---Plaint would be liable to be rejected where person who had filed suit appeared to be unauthorised and incompetent and where status of plaintiff was in doubt.

(h) Income Tax Ordinance (XXXI of 1979)---

----S.146---Civil Procedure Code (V of 1908), O. VII, R.11---Specific Relief Act (I of 1877), Ss.42 & 56---Power to enter and search business premises-- Rejection of plaint--- Plaintiffs had alleged that they had been deprived of their properties comprising books of accounts, documents and other office record as well as computer and disk---Such allegations, prima facie had given right to plaintiffs to approach Court for declaration---Suit filed by plaintiffs was not hit by S.42 of Specific Relief Act, 1877, because same was not only for d6claration, but plaintiffs had also prayed for permanent injunction, return of documents as well as for damages---Plaint filed by plaintiffs could not be rejected in part.

(i) Civil Procedure Code (V of 1908)---

---O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 56-- Interim injunction, grant of---Presence of irregularities and mala fides in acts of defendants was sufficient to bring case of plaintiffs within ambit of a good prima facie case---Remaining two ingredients namely balance of convenience and causing irreparable loss and injury also existed in favour of plaintiffs-- Interim arrangement already made by Court in favour of plaintiffs, would continue till disposal of suit filed by plaintiffs.

Abid S. Zuberi alongwith Muhammad Akhtar Saeed for Plaintiffs.

Nasrullah Awan and Munirur Rehman for Defendants

ORDER

This suit is filed by some nine plaintiffs who claim that they are Tri -Star Group of Companies and duly registered under the provisions of the Companies Ordinance, 1984. The defendants are various authorities working under the Commissioner of Income-tax as established by the provisions of the Income Tax Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979). This suit is for recovery of Rs.200,000,000 (Rupees two hundred million only) as damages. There are three applications pending in this suit. The first application which I intend to deal first is C.M.A. 5242 of 1996 filed by the defendants under Order VII, Rule 11, of the Code of Civil Procedure, 1908 (hereinafter referred to as C.P.C.), seeking rejection of the plaint. The second application is under Order XXXIX, Rules 1 and 2, C.P.C. (C.M.A. 5117 of 1996) filed by the plaintiffs. The last application is again filed by the plaintiffs under section 151, C.P.C. (C.M.A. 4340 of 1998) seeking appointment of Commissioner for the purpose of supervising return of the original record seized by the Income Tax Authorities during a raid conducted on 10-9-1996.

2. The facts leading to filing of the instant suit are, that on 10-9-1996 at about 11-40 a.m. a team comprising several Income-tax Officers inclusive of defendant No.3 namely M. Musharraf Akhund, Additional Commissioner of Income-tax Range-III, Companies-III, Karachi, raided the two offices of plaintiffs situated at F-498 and F-538, S.I.T.E., Karachi and collected/seized all office record, documents, books of accounts, computers and diskettes etc. etc. without preparing any memo/inventory and after packing them into 19 gunny bags and 54 cartons, took them away to the Income-tax Office. It is claimed in the plaint that the said acts and deeds of the defendants were highly unauthorised, illegal and mala fide. It is further claimed that such acts are also violative of the fundamental rights as guaranteed in the Constitution, 1973. It is further alleged in the plaint that despite all efforts of the plaintiffs, these documents and record were not delivered back to them and that the proceedings for assessment have been initiated on the basis of all such record seized during the above raid. It is this act of raid and confiscation of record which has been impugned in this suit with the following reliefs:----

"A. Declaration that the action of defendants in impounding/confiscating all the records of the plaintiffs, without preparation of the inventory at the plaintiffs' business premises is arbitrary, illegal, mala fide and is violative of rules of natural justice and Constitution.

B. Permanent injunction against the defendants, their subordinates, person(s) working under or through them, restraining them from taking any coercive and prejudicial action against the plaintiffs and its Directors pursuant to their unlawful and arbitrary action based on unlawfully obtained evidence, if any, and/or from creating any hindrance in the management and operation of the plaintiffs' business.

C. Direct the defendants to return the plaintiffs' seized record including F.E.B.Cs, Bearer NIT Units and other valuables in excess of Rs.100 Million, forthwith.

D. In the alternative damages in the sum of Rs.200 Million may be paid by the defendants jointly and severally to the plaintiffs with mark-up at the rate of 20% from the date of filing the suit till realization thereof. "

3. Defendants have filed their written statement as well as counter affidavit denying various allegations of ill-will and mala fide as alleged in the plaint and justifying the act of raid and seizure of records. In addition to the denial of these allegations of the plaintiffs, some four preliminary legal objections were also raised in their written statement namely:---

(i)That the suit is barred under section 162 of the Income Tax Ordinance, 1979;

(ii)that the suit is also barred by sections 42 and 56 of the Specific Relief Act;

(iii)that the suit is bad for non-joinder of necessary parties, namely, Federation of Pakistan and Central Board of Revenue; and

(iv)that the suit has been filed by an unauthorised person.

3. For early determination of the above objections, the defendants have also filed an application under Order VII, Rule 11, C.P.C. (C.M.A. 5242 of 1996] with the prayer that the plaint be rejected. Since the plaintiffs have alleged to paras. 2 and 3 of their plaint that a very large number of items of records were removed from their office, which fact has not been specifically denied by the defendants in their written statement, and since it has come on record as a result of Commissioner's report have a very large number of documents and computer diskettes were recovered from the office of the plaintiff, I am inclined to take into consideration these admitted facts for the purpose of deciding the application under Order VXI, Rule 11, C.P.C. I am fortified in my view by the rule laid down in the case Jewan and 7 others v. Federation of Pakistan and 2 others 1994 SCMR 826 at 830, where it was held, inter alia, by the Hon'ble Supreme Court that in addition to the plaint, if there is some other material before the Court at the stage when no evidence is recorded and which is admitted by the plaintiff, the same can also be looked into and taken into consideration by the Court while rejecting the plaint under Order VII, Rule 11, C.P.C. Why and under what circumstances the Commissioner was appointed is reflected in the order of this Court, dated 6-3-1997 which reads as follows---

"Learned counsel for the defendants at the initial stage of the hearing of this application requested for time to file their counter -affidavits but they were refused since in my view sufficient time was granted to them and no plausible explanation was offered for not submitting the same today. I have heard all the parties. It is contended by Mr. Abid S. Zuberi that the defendants are not returning to the plaintiffs their records, computers, N.I.T. Units, F.E.B.Cs. etc. etc. which is creating hurdles in running of their business. Perusal of counter-affidavit filed by the defendants in reply to injunction application shows that on 21-9-1996, one Assistant Commissioner of Income Tax, Karachi has already written to the plaintiffs that they should collect their documents on 21-9-1996 at 2-00 p.m. but the plaintiffs were not able to appear before the said officer. Even today, learned counsel for the defendants have taken the same stand that they are willing and prepared to deliver those documents as mentioned in Annexure 'D-XIX' to their counter-affidavit as referred above. In view of these circumstances, I grant this application with the following conditions:

(i)Mr. Waqar Lodhi, Advocate, having office at 1st Floor, Assad Chambers, near Passport Office, Sadar, Karachi, is appointed Commissioner in whose presence the plaintiffs, defendants and/or their nominees shall search and locate for records and after preparation of inventories the same shall be handed over to the plaintiffs or their nominees in presence of the said Commissioner. Defendants shall be entitled to retain copies of all such documents as provided under section 146 of the Income Tax Ordinance, 1979. In case, any N.I.T. Units, F.E.B.Cs. or any other valuable securities are found, the same shall be returned to the plaintiffs after obtaining acknowledgment. All such acceptance, search, sealing, desealing, acknowledgments, preparation of inventories etc. etc. shall be done in the presence of the abovenamed Commissioner.

(ii)The defendants shall also hand over all the six computers to the plaintiffs after the Commissioner has obtained the print outs of all the entries. The learned Commissioner shall deposit all such print outs, diskettes etc. with the Nazir of this Court in sealed envelopes which are to be retained till further orders from this Court."

Tentatively, fee of the Commissioner is fixed at Rs.2,000 (Rupees two thousand only) per day as an interim arrangement The plaintiffs, shall deposit a sum of Rs.10,000 as advance Commissioner's fee with the Nazir of this Court within one week. All the parties are directed to assemble on 12-3-1997 at 3-00 p.m. in the office Dr. Muhammad Ali, Deputy Commissioner, Income-tax, Company Zone-II. This inspection shall be carried out on day to day basis in-between 3-00 p.m. to 5-00 p.m. (minimum two hours every day) 4. Pursuant to the above order, learned Commissioner Mr. Waqar Lodhi, Advocate, High Court conducted inspection of the record and filed his report dated 24-4-1997 which came up for consideration on 9-2-1998 when by consent but subject to all just exceptions, the Commissioner's report was accepted and was brought on record. According to the Commissioner's report, the proceedings were conducted for 22 days with minimum two working hours each day. During these proceedings, computer print outs were taken out of six computer process units and were kept in the envelopes whereafter they were sealed and signed in the presence of the parties; that some 13 disketts/floppies which were impounded were delivered by the Income Tax Authorities to the Commissioner. Nearly 45 full size envelopes were sealed containing computer print outs and disketts/floppies. The said record comprising of books of accounts and registers etc. were checked and were locked in eight Almirahs in the premises of Income-tax office. Inventories of the record were also prepared by the learned Commissioner in the presence of the parties which he has also filed alongwith his report. These inventories are spread over 51 pages. I have referred all these facts as both the parties have heavily relied upon the provisions of section 146 of the Income Tax Ordinance, 1979 justifying and challenging the acts and deeds of the Income Tax Authorities in raiding and seizing of the aforesaid record. In order to understand their submissions, it would be pertinent to reproduce section 146 of the Income Tax Ordinance, 1979 which reads as follows:---

"146. Power to enter and search business premises.---The Inspecting Additional Commissioner or the Deputy Commissioner or any other officer authorised in this behalf by the Central Board of Revenue or if so authorised in writing by the Inspecting Additional Commissioner or the Deputy Commissioner to whom he is subordinate, an Inspector of Income-tax may, for the purpose of making any inquiry, enter the premises in which a person carries cut, or is believed to carry on, his business or profession, and may--

(a)search such premises and inspect any accounts or documents

(b)stamp such accounts or documents or take extracts or copies thereof;

(c)impound such accounts or documents and retain them for so long as may be necessary for examination thereof. or for the purpose of prosecution; and (d) make any inventory of any articles found in such premises.

(2)The Director-General of Investigation and Intelligence, the Commissioner and the Inspecting Additional Commissioner may make any enquiry which they consider necessary as respects any person liable or believed to be liable to assessment under this Ordinance or require any such person to produce or cause to be produced any accounts or documents which they consider necessary, and shall have the same powers for the purpose of making any such enquiry of requiring the production of accounts or documents under this Ordinance as the Deputy Commissioner has.

(3)Notwithstanding anything contained in this Ordinance, the Deputy Commissioner may, with the prior approval of the Commissioner, authorise any valuer to enter any place and inspect such accounts and documents as may be necessary` to enable him to make a valuation of any asset for the purpose of section 67. "

5. I have heard Mr. Abid S. Zuberi and Mr. Athar Saeed, Advocates for plaintiffs and M/s. Nasrullah Awan and Munirur Rehman, Advocates for defendants. Mr. Nasrullah Awan has attacked the maintainability of suit and prayed for rejection of the plaint on the following four grounds:---

(a)that the suit is barred by section 162 of the Income Tax Ordinance, 1979;

(b)that the suit is also barred by sections 42 and 56 of the Specific Relief Act;

(c)that the suit is bad for non joinder of necessary parties, namely, Government of Pakistan and Regional Commissioner of Income tax;

(d)and that the suit was filed without any resolution passed by any of the plaintiff companies and without any power of attorney as provided under Order XXIX, Rule 1, C.P.C.

6 Firstly, I intend to deal with the question of bar contained in section 162 of the Income Tax Ordinance, 1979 which reads as follows:---

" 162. Bar of suits in Civil Courts. ---No suit shall be brought in any Civil Court against any order made under this Ordinance, and no prosecution, suit or other proceeding shall lie against any person for anything in good faith done or intended to be done under this Ordinance."

In support of his submissions that this Court has no jurisdiction, Mr. Nasrullah Awan has referred to an unreported case of Abbas S. Shroff and another v. Miss Farzana and 4 others (Suit No. 1118 of 1990), Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCMR 29) and The Batala Engineering Co. Ltd. v. The Income-tax Officer, Lahore (1973 SCMR 282). He has also relied upon the case of Pooran Mal v. Director of Inspection, Income-tax, New Delhi and others (1974) 93 ITR 505). It was argued chat once the law has provided an hierarchy for settling income-tax disputes, a plaintiff cannot be permitted to circumvent the same by filing a suit. He has referred to the provisions of sections 129, 134 and 138 of the Income Tax Ordinance, 1979 and contended that the remedy, if any, available to the plaintiff is before the Income Tax Authorities. He has termed the acts of raid on the offices of the plaintiffs and seizure/impounding of their records as bona fide, legal and authorised. Reliance was placed on the provisions of section 146 of the Ordinance, 1979. In reply to the submissions of Mr. Awan, it was argued by Mr. Abid S. Zuberi that there is no assessment order in the field and that the plaintiffs are challenging the acts of the defendants, which are beyond the scope of section 146. To meet this situation, it was contended by Mr. Nasrullah Awan that the raid conducted under section 146 is a step towards an assessment, and, therefore it is to be deemed to be part and parcel of an act amounting to assessment, thus the Jurisdiction of this Court is barred and no suit will be maintainable. Mr. Abid S. Zuberi has placed reliance on the cases of Abbas S. Sharoff (supra), Usman Panjwani and another v. Government of Sindh and another (1996 CLC 311). The Province of East Bengal v Dewan Abdul Alim PLD 1960 Dacca 274 and The State of Tripura v. The Province of East Bengal (AIR 1951 SC 23).

7.Mr. Abid S. Zuberi as well as Mr. Nasrullah Awan both have relied upon the case of Abbas S. Sharoff and another v. Miss Marzana and 5 others (Order dated 2-4-1998 in Suit No. 1118 of 1990) and argued for and against the maintainability of this suit. In the said unreported case, a suit for declaration and mandatory injunction was filed in respect of sale of an immovable property. One of the reliefs sought in the plaint was that the assessment order dated 31-8-1988 be declared to be mala fide, illegal, null and void and that the defendant No.5, who, in that case, was Income-tax Officer be declared to have no jurisdiction to pass the said order. Almost all the cases cited by Mr. Nasrullah Awan in this case were considered, in the case of Abbas S. Sharoff (supra) namely. Income-tax Officer and another v. M/s. Chappal Builders (1993 SCMR 1108), Al-Ahram Builders (Pvt.) Ltd. v. Income-tax Appellate Tribunal (1992 PTD 1671), The Commissioner of Income-tax, Karachi and 2 others v. M/s. N. V. Philip's Gloeilampenfabriaken (PLD 1993 SC 434) and Regional Commissioner of Income-tax, Corporate Region and 2 others v. Shafi Muhammad Baloch (1998 SCMR 376). In addition to these cases, some more cases from the Indian jurisdiction as well as from Pakistan jurisdiction were noted where question of jurisdiction of a Civil Court in an Income-tax matter was considered namely, Dayaram Ramdas v. Secretary of State (AIR 1925 Sindh 130), Raleigh Investment Company Ltd v. The Governor-General-in Council (PLD 1947 PC 19 = AIR 1947 PC 78), Ravi Paint Colour and Varnish Works Ltd. v, Federation of Pakistan (PLD 1954 Lah. 551), Nagina Silk Mills Ltd. Lyallpur v. Income-tax Officer, Lyallpur (PLD 1963 SC 322). After resume of the above case-law, it was then held by me that where the legislators have established a special forum or Tribunal for redress of grievances, bringing such grievances before the Civil Courts after by passing the remedy provided under the relevant statute, is contrary to the spirit of such special law and that section 9 of the C.P.C. will come into play and no suit would lie. It was further held that in order to maintain a suit challenging any order passed by any authority duly constituted under the Income Tax Ordinance, 1979, a plaintiff is required to show presence of three elements, i.e. mala fides on the part of the authority who has passed the order which is subject-matter of the suit; secondly, any illegality which is patent on the face of record and lastly, absence of jurisdiction to pass order under challenge.

8. The question of ouster of jurisdiction of Civil Court was earlier considered by a Full Bench of the Hon'ble Supreme Court in the case of Zafarul Hasan v. The Republic of Pakistan (PLD 1960 SC 113). In that case an objection was raised by the then Attorney-General that in view of section 10 of the Public Conduct (Scrutiny) Ordinance, 1959 jurisdiction of all the Courts including the Supreme Court is ousted. It was held, inter alia, "If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an Appellate Authority is provided by the statute, the omissions or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of law. Of course, where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute. " Recently, the same view was renewed by another Bench of Hon'ble Supreme Court in the case Abbasia Cooperative Bank acid another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3 at 8 where it was held as follows:---

" ....It is a well-settled principle of interpretation that the provision contained in a statute ousting the jurisdiction of Courts of general jurisdiction is to be construed very strictly and unless the case falls within the letter and spirit of the barring provision, it should not be given effect to. It is also well-settled law that where the jurisdiction of the Civil Court to examine the validity of an action or an order of Executive Authority or a Special Tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the Tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or Tribunal was not mala tide; (c) that the order- passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or Tribunal; and (d) that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the Tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it follows that where the authority or the Tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court."

9. The scope of section 9 of the Indian Civil Procedure Code, which is similar in nature to section 9 of the Pakistani, C.P.C., camp up for consideration before the Indian Supreme Court in reference to the provisions of Madhya Bharat Sales Tax Act, 1950 in the case Dhulabhai etc. v. The State of Madhya Pradesh and another AIR 1969 SC 78. In that case different suits were filed for declaration that the provisions of law relating to assessment under the M.B. Sales Tax Act, 1950 be declared ultra vires and for consequential relief. It was prayed by the plaintiffs in that suit that the amount of the tax illegally collected be refunded. As much as 17 reported cases from Indian and English jurisdiction were considered. The four appeals arising out of the same question of law, were accepted, judgments of the High Courts were set aside and the suits filed by the. appellants were decreed. After considering the adverse views expressed in different reported cases, it was held, inter alia, by the Indian Supreme Court that where the statute gives a finality to the orders of Special Tribunal and if there is an adequate remedy to do what the Civil Courts would normally do in a suit, the Civil Court's jurisdiction is excluded. It was further held that such provision shall not exclude the jurisdiction of a Civil Court where the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure; that where the Special Act contains no machinery for refund of tax collected in excess of the Constitutional limits or illegally collected then suit lies for such recovery and that a civil suit does not lie questioning the correctness of assessment if the orders of the authorities are declared to be final. The view held in the case Dhulabhai (supra) was followed by another Bench of Indian Supreme Court in the case of Raja Ram Kumar Bhargava v. Union of India AIR 1988 SC 752. In that case the appellants were the legal successors of the deceased plaintiff who filed a suit for recovery of interest on certain refunds of income-tax and Excess Profit Tax which were made under the Indian Income-tax Act; 1922 and the Excess Profit Tax Act, 1940. The appeal was partly allowed by the Indian Supreme Court. It was held, inter alia, that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provides a machinery for the enforcement of such right, both the right and the remedy having been created uno flatu and a finality is attached to the result of the statutory proceedings, then, even in the absence of exclusionary provisions, the Civil Court's jurisdiction is impliedly barred. It was further observed that "where a right pre-existing in common law is recognized by the statute and a new statutory remedy for its enforcement is provided, without expressly excluding the Civil Court's jurisdiction, then both the common law and the statutory remedies might become concurrent remedies leaving open an element of election to persons of inherence".

10. Now, I will proceed to examine the case of plaintiffs from the point of view whether the acts of the defendants in resorting to the modalities provided under section 146 of the Ordinance, 1979 are mala fide, in excess of authority conferred by the law and unauthorised as alleged by the plaintiffs. I am fully conscious of the rule that the Court should avoid giving any final opinion while deciding an interlocutory application. But in order to ascertain whether this suit falls within the purview of section 162 of the Ordinance, 1979, it is imperative to examine whether there exist, prima facie, such facts as alleged in the plaint which may constitute mala fide and illegality on the part of Income Tax Department. Mr. Munirur Rehman has referred to the case of the Federation of Pakistan v. Saeed Ahmed Khan and others PLD 1974 SC 151 and contended that presumption of regularity is attached to all official acts and that the burden to prove mala fide lies on the plaintiff. He has referred to the observation at page 171 of the said judgment that, "In order to establish a case of mala fide, some such specific allegation is necessary and that it must be supported by some prima facie proof to justify the Court to call upon the other side to produce evidence in its possession". This view was reiterated by another Full Bench of Hon'ble Supreme Court in the case of Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738 at 824-825. Keeping in view the rule laid down in the cases Saeed Ahmed Khan and Pir Sabir Shah (supra), I have examined the contents of the plaint. As earlier observed, it has not been denied by the defendants that the books, documents, records and other articles impounded from the two offices of the plaintiffs were collected in 19 gunny bags and 54 cartons. In addition to these allegations in the plaint, several photographs of the plaintiffs' office were also filed as Annexure ' A' to ' A-6' (fifteen in number) which indicate that the drawers of almirahs, desks and all other file cabinets are all lying totally empty. The inventories of the documents and record recovered from the offices of the plaintiffs which were produced before the Commissioner appointed by this Court comprises of some 51 pages It is this act of defendants which are claimed by the plaintiffs to be illegal, unauthorised and mala fide It is claimed in para. 2 of the plaint that there was no case/assessment pending against the plaintiff in respect of non- payment of income-tax or any notice was given to the plaintiff in respect of any proceedings as provided under the Ordinance, 1979; that the two employees of the plaintiffs company, one Accountant and the other Secretary were detained in Income Tax Building for 26 hours; that the request of the plaintiffs to return their Bearer N.I.T. Units, Share Certificates, F.E.B.Cs. and other valuable securities were declined by the defendant; that four computer sets and 71 disketts/floppies were also removed; that no documents or other record were returned to the plaintiffs till filing of the suit; that all these documents were recovered to fabricate false cases against the plaintiffs. All these acts of the defendants were alleged by the plaintiffs to be 'colourable exercise of powers calculated to harass and to destroy the plaintiffs financially'. In para. 4, it is also claimed that the actions taken by the defendants are collusive, mala fide and arbitrary. In short, there are more than sufficient instances, which defendants may say that such allegations require proof but still there are, allegations in the plaint, which, prima facie, constitute mala fide and illegality allegedly committed by the defendants.

11. It was strenuously argued by Mr. Abid S. Zuberi and Mr. Athar Saeed that the exercise of the powers by the defendants under section 146 was unlawful and arbitrary. They have claimed such action of the defendants to be violative of Articles 4 and 17 of the Constitution, 1973. Reliance was placed on Saneiram Doongarmal Agency (P) Ltd. and others v. K.E. Johnson and others (1964) 52 ITR 637. As against this, Mr. Awan has referred to a case of Indian Supreme Court, Pooran Mal v. Director of Inspection (Investigation), Income-tax and others (1974) 93 ITR 505. In the case Saneiram Doongarmal (supra) as cited by Mr. Zuberi the two Judges of Assam High Court of India declared section 37(2) of the Income-tax Act. 1922 being violative of the fundamental rights as guaranteed under Article 19(1)(g) of the Indian Constitution which view was dissented by the Chief Justice of Assam High Court. However, the Full Bench was unanimous on the facts of the case and held that the exercise of power under section 37(2) of the Income-tax Act, 1922 (now repealed) by the Indian Income-tax Authority was mala fide and contrary to law. The Indian Income- tax Act, 1922 was subsequently repealed and in its place a new law namely, Income Tax Act, 1961 was enacted where the provisions of section 37(2) of the repealed Act, 1922 was saved and was re-enacted as section 132 of the Income Tax Act, 1961. It is this section which was challenged in the case of Pooran Mal (supra) which was held not to be violative of Article 19(1)(f) and (g) of the Indian Constitution which guarantees freedom of trade and business. In the case of Pooran Mal (supra), the provisions of section 37(21 of the repealed Income-tax Act was considered, however, the case of Saneiram Doongarmal was not cited. I may observe here that a comparative study of section 146 of Pakistani Income Tax Ordinance, 1979 will indicate that there is a clear distinction in both these provisions. It will be seen that the provisions of section 132(1)(a) to (c) do not find place in section 146 of the Pakistani Income Tax Ordinance, 1979. In the provisions cited above of the Indian Income Tax Act, 1961 there are requirements for issuance of summons to any person to produce or cause to produce any documents, books of accounts and if he omitted or failed to do so, then the officer is authorised to enter and search any business place, to break open the lock and to impound documents, whereas there are no such provisions iii section 146 of the Ordinance, 1979. In the case of Pooran Mal (supra), it was held by the Indian Supreme Court that whatever is seized from an assessee cannot be kept indefinitely by the departmental authorities with them. It was further observed (at page 517) that the method of search and seizure in connection with the taxation laws would be objectionable if its implementation is not accompanied by safeguard against its undue and improper exercise. All such safeguards are not provided in section 146 of the Ordinance, 1979. It will be advantageous to reproduce an observation from the said case in order to consider what may be one of the objects for enacting section 146. It reads as follows:---

"...All evaders of tax can be proceeded against under section 132. Only in some cases the search may be useful; in others it may not be. If the Director of Inspection gets timely information about the undisclosed income and its location, he .can direct a search and seizure. Otherwise, it is futile to direct a search and seizure because the whole manoeuvre will be fruitless. The provision for seizure is designed with the object of getting at the income which has been concealed illegally by the assessee. Only when he is honestly satisfied that some undisclosed income of a person is likely to come to his hands if a search is directed, he will be in a position to issue the necessary authorisation. He cannot, however, direct a search in respect of an evader of tax who is astute enough to spend all his income or otherwise make it impossible to be traced..."

12. There are certain prerequisites to invoke section 146 of the Ordinance, 1979. Firstly, there must be an authorised officer including Inspecting Additional Commissioner or a Deputy Commissioner or any other officer duly authorised in this behalf by the Central Board of Revenue or an Inspector of Income-tax, if authorised in writing by the Inspecting Additional Commissioner or the Deputy Commissioner, such authorised person is permitted to enter the premises where a person carries on his business. The second requirement is that the entry and search of a business premises must be for the purpose of making an inquiry. The powers so conferred on the officers of the Income-tax Department, as mentioned above, is to search business premises and to inspect any book of accounts or documents; secondly, to stamp such accounts or to take extracts or copies thereof; thirdly, to impound such documents or accounts and to retain them for a limited period which may be necessary for examination or for the purpose of prosecution and lastly, to make an inventory of articles found in such premises. After these powers conferred on Income Tax Authorities by virtue of section f46 are examined, I am unable to subscribe to the views of Mr Awan that for such purpose, the Income Tax Department is competent to remove each and every books of accounts, documents and other record pertaining to the business transactions, vouchers, computers and disketts etc This is not the spirit of section 146. In my humble view, prior to removing any books of accounts or documents from a business premises there should be an inquiry pending against such person, and, secondly, before impounding any accounts or documents, there should be an element of satisfaction of the concerned authority that such records and documents are necessary for making any person or company liable to assessment; or for reopening of an assessment order or that there exists a case of concealment. This provision does not authorise the Income Tax Department to remove entire business record of a company and thereafter to fish grounds from such record to make an assessee subject to reopening of a case or make such assessee liable for concealment. To further illustrate this view, I would like to quote a passage from the Circular Letter No.4(40) WIVI/86, dated March 20, 1988, as incorporated in the book 'S. A. Salam's Complete Income-tax Law, 6th Edition, 1995, Volume-I, Lahore' at page 410. It reads as follows:---

"According to the provisions of subsection (1) of section 146 of the Income Tax Ordinance, 1979 read with C.B.R.'s Circular No. 10 of 1979, the Income-tax Officer or an Income-tax Inspector can enter and search business premises of an assessee for the purpose of making an inquiry after obtaining prior permission of the Inspecting Assistant Commissioner. While granting permission, the I.A.C. is expected to use his discretion in a judicious manner and satisfy himself that such entry and search of the business premises is necessary. Therefore, on each occasion, facts and circumstances of the matter necessitating an inquiry should be carefully examined before the required permission is granted by the Inspecting Assistant Commissioner.

2.A case has come to notice of the Federal Ombudsman, where this was not done; he has taken serious adverse notice of lapse. While action in that particular case is in hand, separately, this is to advise you specifically to ensure, through all possible means at your command, that the powers under section 146(1) are not exercised arbitrarily but judiciously; anyone not doing so or not preventing it, will render himself liable to serious adverse notice and consequential disciplinary action."

13. The plaintiffs have not challenged any order in writing passed by the defendants. It is the act of the raid conducted by the defendants on 10-9-1996 which is being challenged through this suit. However, on the day of raid, i.e. 10-9-1996, several orders were passed by the Commissioner of Income-tax, Companies Circle-I and III which the plaintiffs have filed as Annexures A/7 to A/11 with their plaint. Through these communications, the defendant No.3 was permitted to 'enter' the business premises of .the plaintiffs for the limited purposes as provided in section 146(1)(a) to (d). It may be the subsequent acts of the defendant No.3 and his subordinate staff, which have given rise to the cause of action to the plaintiffs to file and maintain this suit. Tentatively, it does not appear that the acts, search and seizure by the defendant No.3 and other officers were strictly in accordance with, the authority conferred upon them by virtue of Annexures P/7 to P/ 11. The first part of section 162 of the Ordinance, 1979 bars filing of suit against any order made thereunder. Since there is no order in writing, which is being challenged in this suit, the first part of section 162 is not attracted. The second part bars all prosecution, suit or other proceedings against any person for anything done in 'good faith' or intended to be done under the Ordinance, 1979. This second portion is attracted in the circumstances of the present case as plaintiffs are challenging the acts of the Income-tax Authorities. Indeed, a presumption of correctness is attached to all acts done by the Government functionaries but this presumption is rebuttable. Reference is made to Article 129, Illustration (c) of the Qanun-e-Shahadat, 1984 and Majid Ali Naqvi v. Additional District Judge and another 1970 SCMR 375. If sufficient material is produced before a Court and where a tentative view is formed by a Court that such material constitutes an element of mala fide on the part of authority then the suit would be maintainable subject to the proof of such mala fide which burden lies upon the plaintiff.

14.It was argued that any action taken under section 146 of the Ordinance, 1979 is not appealable. Some apprehension has been expressed in the body of the plaint that the defendants are proceeding to initiate action on the basis of accounts and records seized by them. None of the parties have argued on the point whether plaintiffs would be entitled to challenge the acts of the defendants during an assessment proceedings conducted by an Income- tax Officer. I am of the tentative view that an Income-tax Officer, being below the rank of an Income-tax Commissioner, Inspecting Assistant Commissioner or Appellate Assistant Commissioner, will not be in a position to declare their acts to be violative of the provisions of Income Tax Ordinance, 1979 or for that matter to declare such' acts violative of the fundamental rights of an assessee. No remedy is available to the plaintiffs to call in question the acts of the defendants dated 10-9-1996 as no appeal, review or revision is provided under the Ordinance, 1979 challenging the seizure and raid conducted under section 146 of the Income Tax Ordinance, 1979. Section 129 provides right of appeal to the Appellate Assistant Commissioner against the order of an Income-tax Officer passed under sections 59, 59-A, 62, 63, 65, 68, 75, 80, 80-A, 91, 98, 99, 105, 112 and some other provisions but no appeal is provided for an act done under section 146. Then section 134 provides appeal to the Appellate Tribunal against the order of Appellate Assistant Commissioner passed under sections 111, 132, 148(2) and section 156. There is also remedy of revision before the Commissioner as envisaged under section 138. It provides that the Commissioner, either on his own or on an application made by an assessee may call for record of any proceeding where an order has been passed by an authority subordinate to the Commissioner and after making inquiry may pass any appropriate order. Recently, there was an amendment in the Income Tax Ordinance, 1979 through which section 136 was substituted and now any question of law arising out of an order passed by an Appellate Tribunal under section 135 was made appealable to the High Courts. (See Finance Act, 1997). In the instant case, plaintiffs have filed Annexures A/7 to A/11 all signed by the Commissioners of Income Tax Companies Circles-I and III, Karachi authorising the defendant No.3, namely, Musharraf Akhund, Additional Commissioner to conduct raid. Therefore, these directions as contemplated in Annexures A/7 to A/ 11 being passed by the Commissioner, the remedy of revision as provided under section 138 is also not available to the plaintiffs. To sum up, in my tentative view there is no remedy available to they plaintiffs to challenge the acts of the defendants as impugned in the present suit, before the hierarchy established under the Income Tax Ordinance, 1979. It will be unfair and unjust to ask the plaintiffs to wait till the final assessment order is passed by a competent authority and then to challenge all the acts as alleged in the instant suit before an Appellate Assistant Commissioner who, as I have expressed earlier, will not be competent to declare the orders and acts of his superiors to be violative of Income Tax Ordinance 1979. Availability of any remedy before the Income Tax Authority, is thus, not available to the plaintiffs. This fact coupled with the allegations of mala fide and illegalities in the plaint give vital support to the maintainability of this suit. I am of the considered view that the rule laid down by the Hon'ble Supreme Court in the cases Commissioner, Income Tax v. Hamdard Dawakhana (Waqf), Karachi PLD 1992 SC 847 and The Commissioner of Income-tax, Karachi and 2 others v. Messrs N. V. Philip's Gloeilampenfabriaken PLD 1993 SC 434 is not attracted in the circumstances of this case.

15. I have considered the arguments of all the parties in depth. While following the rule laid down by the Hon'ble Supreme Court of Pakistan in the cases Zafarul Hasan and Abbasia Cooperative Bank (supra), in order to ascertain whether the jurisdiction of this Court is barred, the first thing to be seen is whether Annexures (A/7) to (A/11) filed with the plaint were passed by the Authority validly constituted under the Ordinance, 1979. In my tentative view the directions passed by the Commissioners of Income Tax, Companies-I and III, Karachi on 10-9-1996 to search and impound records and documents of the plaintiffs were over and above the authority as specified in section 146. However, there is sufficient material placed by the plaintiffs which I have discussed in the earlier part of this order which in my tentative view constitutes mala fides on the part of the defendants. It is to be seen that the direction issued to the defendant No.3 filed as Annexures A-7 to A-11 was strictly in accordance with the subsection (a) to (d) of section 146 but the persons who conducted the raid and seizure of accounts and other record exceeded their authority by removing the entire record, books, documents, computers, disketts etc. etc. of the plaintiffs from their respective offices which were admittedly taken away in some 19 gunny bags and 54 cartons, besides four computers which were taken away separately. The case of Abbas S. Sharoff (supra) will not help the defendants as in that case, neither any mala fide nor any illegality, as of the instant case, were alleged keeping in view the allegations of the plaintiffs as levelled in the plaint and for the facts and law stated hereinabove, I am of the considered view that in the peculiar circumstances of this suit, the jurisdiction of this Court is not barred. For this view, I am fortified by the observations made in the case of Al-Ahram Builders (supra, also reported in 1993 SCMR 29) where at page 38/39 it was held that "in certain cases invoking of Constitutional jurisdiction of the High Court instead of availing of remedy provided for under the relevant statute may be justified, for example when the impugned order/action is palpably without jurisdiction and/or mala fide. To force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper".

16. On the point that the suit was filed in violation of the provisions of Order XXIX, Rule 1, C.P.C. and that the plaint is liable to be rejected on this score as well, it was contended by Mr. Nasrullah Awan that the plaintiffs are required to disclose in the body of plaint that the person filing the suit and verifying the contents of plaint has been authorised by the Company and for that purpose a resolution or a power of attorney is to be filed. It was argued that this was not done by the plaintiff and the plaint is liable to be rejected. Learned counsel has placed reliance on the cases (i) Nawab Iftikhar Hussain Khan Mamdot v. Ghulam Nabi Corporation Ltd. PLD 1971 SC 550, (ii) Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lah. 384 (iii) Standard Hotels (Pvt.) Ltd. v. M/s. Rio Centre and others 1994 CLC 2413 and the case (iv) Board of Control for Cricket in Pakistan v. K.D.A. 1997 CLC 795. On the other hand, Mr. Zuberi has referred to the case Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684 and submitted that through an additional affidavit dated 3-11-1996 which was filed on the same date, the plaintiffs have filed copies of all the resolutions duly passed by the plaintiffs companies which were adopted prior to filing of the suit authorising the person who has signed the plaint, to file and maintain the suit. It was contended by Mr. Awan that it is not the requirement of law; 'firstly, no leave was obtained from this Court by the plaintiffs to place these documents on record and, secondly, this fact that the resolutions were passed by the plaintiff companies should have been incorporated in the body of plaint.

17. Recently, a Division Bench of this Court has also considered in detail the question whether the person filing the suit had to do so under an expressed authority backed by a resolution from the Banking Company in the case of Abdul Rahim and 2 others v. Messrs United Bank Ltd. of Pakistan PLD 1997 Kar. 62. All the case-law as noted above alongwith other reported judgments from Indian jurisdiction were also considered. It was held, inter alia, that. Order XXIX, Rule 1, C.P.C. only deals with signature and verification of pleadings and that the said rule is irrelevant to determine a person's competence or authority to institute a suit; that the default in compliance of Order XXIX, Rule 1, C.P.C. is not a fatal defect and can be cured even after the suit has been instituted; that there appears to be some inconsistency as to how such competence/authority of a person to institute a suit has to be determined and that a plaint can be rejected on grounds of incompetence to institute the same. The matter was remanded back to Banking Tribunal by the Division Bench with the- direction to decide the entire case afresh after calling the Articles of the respondent and to decide the same in terms of the guidelines mentioned in the reported case. Indeed, a plaint would be liable to be rejected where the person who has filed the suit I appears to be unauthorised and incompetent and where the status of the plaintiff is in doubt as in the case of B.C.C.P. (supra). In the instant suit, it has not been denied by the defendants that the plaintiffs are duly incorporated private limited companies as these plaintiffs are the assessees of the Income -tax Department. The only objection is that neither any power of attorney nor any resolution of the plaintiffs company was filed at the time of presenting the plaint. The person who has verified the plaint has claimed himself to be one of the Directors acting in furtherance of the resolutions, which have been subsequently filed. At present it is to be seen whether there appears any defect in the plaint calling for its rejection.

18. In the case of Board of Control for Cricket in Pakistan (supra) I had considered all the five cases relied upon by both the parties. In addition to these cases, some other cases on the point under discussion were also considered, namely, Abubakar Saley Mayet v. Abbot Laboratories and another 1987 CLC 367, Shahab-ud-Din and others v. Mst. Mariam Bibt and others 1995 MLD 45 and Dumez Borie v. Int. Forwards NLR 1983 UC 184. In that suit (B.C.C.P. v. K.D.A.) the plaint was rejected on the ground that the status of the plaintiff, whether it is an Association registered with the Registrar of the Firms or a limited company incorporated with the Registrar of the Joint Stock Companies was not clear neither any authority nor any resolution was filed despite the fact that these objections were raised by the defendants of that suit through an application under Order VI1, Rule 11, C.P.C. which remained pending for full 15 months. The rule laid down by the Hon'ble Supreme Court in the case of Nawab Iftikhar Hussain Khan Mamdot (supra) was followed and the plaint in the reported case of B.C.C.P. (supra) was rejected. The facts of the instant case are quite distinguishable from the case of B.C.C.P. (supra). In the instant suit, this objection was, for the first time, raised by the defendants vide their application under Order VII, Rule 11, C.P.C. which was filed on 1-10-1996 while the same objections were again raised through their written statement which was filed on 28th January, 1997. It-is to be noted that immediately after filing of the aforesaid application by the defendants and before its service, the plaintiffs filed their further affidavits alongwith copies of the resolutions, all dated 21st September, 1996, while the instant suit was filed on 25-9-1996. It has been rightly argued by Mr. Awan that this is not the proper procedure for bringing a document on record. In these circumstances, the question which arises is whether the plaint is still liable to be rejected on the ground of irregularity, when the plaintiffs, rightly or wrongly, have cured the said irregularity which was prevailing at the time of filing of the suit.

19. In the case of Messrs Muhammad Sadiq Muhammad Umar (supra) the suit was filed by a public limited company, namely, Australasia Bank through Muhammad Khan who claimed himself to be the Principal Special Officer of the plaintiff-Bank. One of the issues at trial was whether the said person was competent to file the suit on behalf of the plaintiff-Bank. Despite framing of such issue, the plaintiff-Bank neither filed Articles of Association nor any resolution of the Board of Directors or adduced any evidence to prove the competency of the person who had filed the suit and who had signed and verified the plaint. It was held by the trial Court that the suit was filed by an unauthorised person. However, on appeal before the High Court, one of the learned 'Judges agreed with the trial Court while the other Judge differed. The matter, then was referred to a referee Judge who directed the plaintiff-Bank to file the Articles of Association and other documents through which Muhammad Khan was appointed as attorney to file suit. After examining these documents the third Judge of the erstwhile West Pakistan High Court came to the conclusion that the suit was competently instituted. The appeal filed against the majority view of the West Pakistan High Court was dismissed with cost by the Hon'ble Supreme Court. It was held, inter alia, that calling of additional evidence by the third Judge at the appellate stage was not improper. In the instant suit, the plaintiffs have filed copies of the resolutions at an early stage prior to framing of issues. The plaint has been signed by a Director of the Company which fact appear from the rubber seal affixed on the plaint. The same Director namely Asad Ahmed has verified the contents of the plaint on solemn affirmation and has claimed that he has been authorised by the plaintiffs companies to verify the same and file the suit. It will not be just and proper in the aforesaid circumstances to reject the plaint on this ground. However, in the interest of justice, I permit the plaintiff to amend the plaint up to the extent of incorporating the resolutions of the Companies in the body of plaint subject to payment of cost of Rs.10.000 and subject to the condition that it will be open to the defendants to challenge the competence of Asad Ahmed during the trial. Compliance of this order to be made within three weeks.

20. Next, it was argued by Mr. Nasrullah Awan and Mr. Munirur Rehman that the suit is bad and that the plaint is liable to be rejected on the grounds that the necessary parties namely, Government of Pakistan and the Regional Commissioner of Income-tax have not been impleaded. In support of this contention, reliance is placed on Secretary, B & R Government of West. Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625. Mr. Munirur Rehman has placed reliance on section 3 of the Income Tax Ordinance, 1979 wherein Central Board of Revenue and Regional Commissioner of Income-tax have been shown as one of the Income-tax Authorities. On the other hand, Mr. Muhammad Ather Saeed has referred to section 5 of the Income Tax Ordinance, 1979 and states that the authorities mentioned in this section are to be impleaded as defendants and are the necessary and proper parties. Section 3 of the Ordinance, 1979 defines the different classes of Income Tax Authorities for the purpose of the said Ordinance which include Central Board of Revenue,Regional Commissioners .of Income-tax as well as Commissioners of Income-tax. Section 5 of the Ordinance, 1979 deals with the jurisdiction and powers of those authorities as mentioned in section 3. In the present suit, the plaintiffs have impleaded two Commissioners of Income-tax namely Companies-I and Companies Circle-III and at the same time four individuals in their personal names. These individuals were arrayed as defendants 3 to 6 respectively who are performing the duties of Additional Commissioner, Deputy Commissioner and Assistant Commissioner of Income-tax.

21. In the case of Fazal Ali Khan (supra), it was held by a Division Bench of this Court that only legal and natural persons can be sued as defendants in terms of Order 1, Rule 3, C.P.C. In that case the suit was brought by Fazal Ali Khan against some five officials of the then Government of West Pakistani who were impleaded in their official capacities and not by name as in the instant suit where defendants Nos.3 to 6 are impleaded by their personal names. Therefore, the instant suit is not hit by the rule laid down in the case of Fazal Ali Khan. However, the plaintiffs have not impleaded the Government of Pakistan as one of the defendants as provided under section 79, C.P.C. None of the parties have addressed this Court on this implication whether it is fatal to the maintainability of this suit. There is a recent pronouncement of the. Hon'ble Supreme Court of Pakistan in the case Province of the Punjab and others v. Muhammad Hussain and others PLD 1993 SC 147. I would, therefore, leave this question open to be decided later on. All the parties are directed to make submissions on this question as well as on the question whether the plaint is liable to be rejected in the absence of necessary party, namely, Government of Pakistan keeping in view the provisions of Order I, Rules 9 and 10, C.P.C. To come up on 13th August, 1998.

22. The fourth attack of Mr. Nasrullah Awan is on the basis of provisions of sections 42 and 56 of the Specific Relief Act, 1877. According to the learned counsel, the plaintiffs are not entitled to declaration as prayed in the instant suit since no question pertaining to their status or character in' relation to any property is involved. He has also referred to section 56(d) of the Specific Relief Act, which provides that an injunction cannot be granted to interfere with the public duties of any department of Central or Provincial Government. On the other hand, it was argued by Mr. Zuberi that since the plaintiffs have alleged that their valuable securities including Foreign Exchange Bearer Certificates (F.E.B.Cs.) were taken away by the Income Tax Authorities, they are entitled for a declaration in respect of such properties and that the acts as challenged in this suit amounts to denying the legal character and status of the plaintiffs. He has relied upon an unreported case Javed Malik v. National Sailing Centre (Suit No.1308 of 1997). The phrase "legal character " was defined by a learned Single Judge of this Court in reference to the definition given by Professor Holland in the case of Alavi Sons Ltd. v. Government of East Pakistan and 2 others PLD 1968 Kar. 222. It was held that the word "status" is usually confined to personal legal conditions or personal capacities and incapacities or compulsory, as opposed to functional personal conditions. Some 15 legal conditions were referred which include profession. In Abdur Rehman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others PLD 1978 Lah. 113, it was held by a Division Bench of Lahore High Court, inter alia, that section 42 would be attracted where the plaintiff approaches the Court for the safeguard of his right to legal character or property. In the instant case, as alleged by the plaintiffs, they have been deprived of their properties comprising books of accounts, documents and other office record as well as computer and diskettes. This, prima facie, gives right to the plaintiffs to approach this Court for declaration. For the time being, I hold that this suit is not hit by section 42 of the Specific Relief Act. It is also observed that this is not a suit for declaration only but the plaintiffs have also prayed for permanent injunction, return of documents as well as for damages. Therefore, the plaint cannot be rejected in part. Accordingly, C.M.A. 5242 of 1996 stands dismissed but subject to the observations made in paras. 19 and 21 above.

23. Now, I am left with two other applications filed by the plaintiffs namely, C.M.A. 5117 of 1996 which is an application under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C. seeking interim injunction against the defendants, their subordinates or any other person working under their control from taking any coercive and prejudicial action against the plaintiffs and its Directors on the basis of documents and record seized by them. The second application C.M.A. 4340 of 1998 is under section 151, C.P.C. read with section 94, C.P.C. seeking interim injunction against the defendants from taking any action pursuant to the notices issued under various provisions of the Ordinance, 1979 till the original record is returned to the plaintiff. It is further prayed in the last application that a Commissioner be appointed to inspect the record of the receipts obtained by the Income-tax Department in order to ascertain whether originals were returned by them. The reliefs sought in both these applications are widely worded and if granted, it will amount to interfering in the process of recovery of Income-tax. But, at the same time, since I am of the tentative view that the presence of irregularities and mala fides in the acts of the defendants cannot be ruled out, this fact is sufficient to bring the case of plaintiffs within the ambit of a good prima facie case. I am also of the view that the remaining two ingredients namely, balance of convenience and causing irreparable loss and injury also exists in favour of plaintiffs. On 13-11-1996 an interim arrangement was made by this Court for the purpose of proceeding with the assessment. In my view, this arrangement should continue till disposal of the suit but with the following four conditions, namely : ---

(i)Suit be fixed for framing of issues on 13-8-1998 when all the parties are directed to submit draft issues.

(ii)After framing of issues, suit be fixed for Regular Hearing within three months. It is desired that the evidence be recorded through Commission for which the parties are advised to propose name of the Commissioner.

(iii)The defendants Nos. l and 2 are directed to submit their report keeping in view the provisions of section 146(c) declaring how much more time they would need to return the impounded documents and record. Such report to be filed within 15 days.

(iv)All the assessment cases pending against the plaintiffs companies shall be placed before the Regional Commissioner, Income-tax, Corporate Region, Karachi who will refer the said cases to such officers for assessment who are neither defendants nor their subordinates. The concerned officer to whom assessment cases are referred by the Regional Commissioner as mentioned above, shall proceed strictly in accordance with the provisions of the Income Tax Ordinance, 1979 as well as in accordance with the principles of natural justice.

(v)After finalisation of assessment proceedings, the Income-tax Department will produce its findings before the Court and no action for its execution will be initiated without order of this Court.

With the above directions all the three applications stand disposed of

IFI.B.T./T-36/KOrder accordingly.