ALL PAKISTAN TEXTILE MILLS ASSOCIATION through Secretary VS FEDERATION OF PAKISTAN through Secretary Commerce, Ministry of Commerce, Islamabad
2009 P T D 1298
[Lahore High Court]
Before Mian Saqib Nisar and Ali Akbar Qureshi, JJ
ALL PAKISTAN TEXTILE MILLS ASSOCIATION through Secretary
Versus
FEDERATION OF PAKISTAN through Secretary Commerce, Ministry of Commerce, Islamabad and 2 others
I.C.A. No.549 of 2008, heard on 13/05/2009.
(a) Constitution of Pakistan (1973)---
---Art. 199---Civil Procedure Code (V of 1908), O.VII, R.7---Constitutional petition--Moulding of relief---Theory of subsequent event---Applicability---Scope---Court seized of a matter, which is competent and maintainable before it, can always mould the relief as is warranted by the facts of the case, even taking into account the subsequent developments occurring during the pendency of the lis---Such rule, however, is subject to important limitations; that no prejudice is caused to the defendant/respondent by doing so; such events must have nexus with the cause of action or the defence of the case and should not amount to setting up a new case by the parties; either side must get a chance of meeting the effect of the subsequent events, which, in ordinary course should be incorporated by appropriate amendment of the pleadings.
Ch. Riyasat Ali, Advocate v. Returning Officer and 2 others 2003 CLC 1730; Capt. S.M. Aslam and others v. Karachi Building Control Authority through Chief Executive Nazim-e-Aala and others 2005 CLC 759; Mehrab Khan through Attorney v. Province of Sindh through Secretary, Irrigation and Power Department, Government of Sindh and 5 others 2005 CLC 441; Ardeshir Cowasjee v. Province of Sindh 2002 CLC 684; Marghub Siddiqi v !amid Ahmad Khan and 2 others 1974 SCMR 519 and Salahuddin and 2 others v. Fronteir Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244 ref.
(b) Constitution of Pakistan (1973)---
----Art. 199---Constitutional petition---Theory of subsequent event, applicability of Moulding of relict --Scope -Vices of specific order of the Commission had not been challenged in the constitutional petition, rather no ground, at all, had been set out on the basis of which it could, especially by the court, be ascertained, assessed, determined and adjudicated as to what was the illegality or vices (legal or factual) of the Commission's order, not only the court shall he in disadvantageous position to examine the order in this behalf, even the respondent shall not he in a position to defend the case on the basis of the present pleadings.
(c) Maxim---
----Ubi jus ibi remedium---Lex semper dabit retnediurn---No concept of a wrong without a remedy---Principles.
According to the maxim ubi jus ibi remedium there is no concept of a wrong without a remedy and the "remedium" may be defined to be the right of action, or the means given by law, for the recovery or assertion of a right; besides, in view of another maxim lex semper debet remedium, if a man has a right, he must have means to vindicate and maintain it, and should have a remedy if he is injured in the exercise and enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal, thus, it appears, that "remedium" in the above maxims has a more extended signification than the word "action" in its modern sense and an "action" is, in fact, one peculiar mode pointed out by the law for enforcing a remedy, or for prosecuting a claim or demand in the court of law.
Broom's Legal Maxims 10th Edn. P. 118 ref.
(d) Constitution of Pakistan (1973)---
----Art. 199--Anti-Dumping Duties Ordinance (LXV of 2000), S.64(5)---Non-establishment of Appellate Tribunal by Federal Government under S.64 of Anti-Dumping Duties Ordinance, 2000---Remedy---Maxims ubi jus ibi remedium and lex semper debet remedium---Applicability---In the present case, Association of Textile Manufacturers, subject to its locus standi undoubtedly had a right of appeal under the statute, which was the most sacred right, however, if for any reason the thrum of appeal had not been established enabling the exercise of such valuable right, the right, could not be allowed to be frustrated or stultified, for the lapse on part of the Federal Government as it was the fundamental principle of law that the rights and the remedies of the parties could not be left in vacuum, thus, in the situation the Association (Subject to its locus standi) shall have an independent right to challenge any such order under Art.199 of the Constitution, if it had been passed by a forum which could be construed to he a forum against which a writ of certiorari would lie, otherwise before the courts of plenary civil jurisdiction under S.9, C.P.C.
(e) Constitution of Pakistan (1973)---
---Art. 199(4), (4-A)---Constitutional jurisdiction---Interim injunction, grant of----Scope---Provisions of Art.199(4) or(4-A) of the Constitution would only be relevant, if a case for the grant of interim injunction is made out on the basis of the contents of the main petition Where however, the statutory body was not under challenge in the petition, how could the interim injunction beyond the scope of pleadings be granted against the said body even ignoring the rule that. Civil Procedure Code was applicable to the proceedings under Constitutional jurisdiction.
Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 and Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 ref.
(f) Anti-Dumping Duties Ordinance (LXV of 2000)---
----S. 64---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cause of action and entire structure of the case was rested upon one single grievance i.e. for the constitution of the Appellate Tribunal within the parameters of S.64, Anti-Dumping Duties Ordinance, 2000 which could not be granted particularly when the Bill for amendment of the same section of the Ordinance had been approved by the Standing Committee and also for the reason that as per the decision of the National Judicial Policy Making Committee dated 18/19-4-2009, may be the retired Judge of the Supreme Court could not be appointed as the Chairman of the Appellate Tribunal---If any such direction was given by the High Court, it shall be difficult to cope with and reverse a situation, which might emerge on account of the amendment.
Majid Ali Wajid for Appellant.
Ch. Aamir Rehman, D.A.G., Muhammad Nawaz Waseer, Standing Counse-1, Shahzad A. Elahi and Ahmed Sheraz for Respondents.
Date of hearing: 13th May, 2009.
JUDGMENT
MIAN SAQ1B NISAR, J.---The brief facts of the case are that upon an application of the domestic industry which produces/manufactures Polyester Staple Fibre, an anti-dumping investigation was conducted by respondent No. 1, which was initiated on 9- 8-2006 under the Anti-Dumping Duties Ordinance, 2000 ("the Ordinance). Finally, the National Tariff Commission respondent No.2, vide order dated 7-6-2007, in the above proceedings came to the conclusion that the anti-dumping law is being violated, and thus it imposed anti-dumping duties at the rate provided in the order on the Polyester Staple Fibre imported from Indonesia., Korea and Thailand. The appellant being the association of all Pakistan Textile Manufacturers (APTMA), feeling aggrieved that its members shall he adversely affected by the order as an "interested party" within the contemplation of section 64 of the Ordinance intended to file an appeal, however, due to the non-establishment of the Appellate Tribunal was precluded to do so, therefore, the Writ Petition No.7010 of 2007 was filed with the following prayer:--
"It is therefore, most humbly prayed that this Hon'ble Court may graciously be pleased to accept the instant constitutional petition, and respondent may be directed to establish the Appellate Tribunal under section 64(1) of the Anti-Dumping Duties Ordinance, 2000. The respondent may further be directed to make rules as to the form and the nature of information required in the Appeal as mandated under section 64(5) of the Anti-Dumping Duties Ordinance, 2000".
The matter came up before the learned Single Judge in Chambers, and vide impugned judgment dated 3-12-2008 it was disposed of, the relevant part of the judgment reacts as tinder:--
"Learned counsel for the respondent and learned Law Officers have no objection if the relief claimed as per above prayer is accorded to the petitioner. Mr. Muhammad Nawaz Waseer, Advocate representing Ministry of Commerce, Government of Pakistan has informed that bill in this regard has been submitted to the National Assembly for it's legislation. He is hopeful of positive outcome within a month or so. Learned Deputy Attorney General has also endorsed the views of learned counsel for Ministry of Commerce. Respondent No.1 is directed to expedient the matter and make every possible effort for the expeditious establishment of the Tribunal."
2. Learned counsel for the appellant states that the relief for the constitution of the Appellate Tribunal should have been straightaway granted as per the existing law, because it was so conceded by the respondent, otherwise awaiting the passing of the amendment bill, shall seriously prejudice the appellant's members, who have to make payments of heavy duties at the time of the import of the Polyester Staple Fibre, with the results that virtually such imports have been stopped, as no one can afford to pay heavy duties as directed by the order dated 7-6-2007.
3. On one of the last hearings, learned Deputy Attorney General sought time to seek instructions from the Federal Government, if a Tribunal can he constituted as per the prevalent law, awaiting the final outcome of the bill. However, today it has been apprised that the Standing Committee of the National Assembly has approved it and in the due course it shall be presented before the house. Besides, it is submitted that according to the recent decision of the National Judicial Policy Making committee dated 18/19-4-2009, a retired Judge cannot be appointed as the Chairman of the Appellate Tribunal as envisaged by section 64 of the Ordinance and the amended bill even though presented earlier in time to this decision is absolutely in line therewith.
4. Replying to the above, learned counsel for the appellant submits that subsequent events can always be looked into by the Court and the relief can be accordingly moulded. It is thus submitted that due to the above reasons if the "Tribunal cannot be immediately established, this Court should interfere in the matter and examine the legality and vires of the order dated 7-6-2007; considering it to be the order impugned in the writ petition. In support of his contention, he has relief upon Order VII, Rule 7, C.P.C. and the judgments reported as Ch. Riyasat Ali, Advocate v. Returning Officer and 2 others 2003 CLC 1730; Capt. S.M. Aslam and others v. Karachi Building Control Authority through Chief Executive Nasim-e-Aala and others 2005 CLC 759 and Mehrab Khan through Attorney v. Province of Sindh through Secretary, Irrigation and Power Department, Government of Sindh and 5 others 2005 CLC 411. The learned counsel in the alternative has prayed that while keeping this appeal pending till the bill is passed and the Tribunal is created, the injunctive relief should be granted to the appellant by suspending the order dated 7-6-2007, because even if the appellant has not sought the setting aside of the order in the writ petition, yet the grant or refusal of such relief is regulated by Article 199(4) and (4-A) of the Constitution of Islamic Republic of Pakistan, 1973, see Ardeshir Cowasjee v. Province of Sindh 2002 CLC 684 rather Order XXXIX, Rules 1 & 2, C.P.C. therefore, the judgment reported as Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 is not applicable to the case.
5. Heard. There can be no cavil with the rule that a Court seized of a matter, which is competent and maintainable before it, can always mould the relief as is warranted by the facts of the case, even taking into account the subsequent development occurring during the pendency of the his besides, the judgments cited by the appellant's counsel, reference in this behalf can also be made to Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244; however, the rule is subject to important limitations that no prejudce is caused to the defendant/respondent by doing so such events must have nexus to the cause of action or the defence of the case and should not amount to setting up a new case by the parties either side must get a chance of meeting the effect of the subsequent events, which in ordinary course should be incorporated by appropriate amendment of the pleadings.
The contention of the learned counsel for the appellant that under the theory of subsequent event, the writ petition now be treated to be a petition challenging the order dated 7-6 2007 passed by the National Tariff Commission cannot he taken into account and accepted (under the rule of moulding of relief) for the reasons that in the constitutional petition not only that the vires of such order has not been challenged, rather no ground at all has been set out on the basis of which it can, especially by the Court, be ascertained, assessed, determined and adjudicated as to what is the illegality or vices (legal or factual) of the order not only the Court shall be in disadvantageous position to examine the order in this behalf, even the respondent shall not be in a position to defend the case on the basis of the present pleadings.
6. Be that as it may, according to the maxim obi jus ibi remedium there is no concept of a wrong without a remedy and the "remedium" may be defined to be the right of action, or the means given by law, for the recovery or assertion of a right besides, in view of another maxim lex semper debet remedium, if a man has a right, he must have mean to vindicate and maintain it, and should have a remedy if he is injured in the exercise and enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal, thus, it appears, that "remedium" in the above maxims is a more extended signification then the word "action" in its modern sense and an "action" is, in fact, one peculiar mode pointed out by the law for enforcing a remedy, or for prosecuting a claim or demand in the court of law. See Broom's Legal Maxims 10th Edition page 118. The appellant (subject to its locus standi as the association) undoubtedly has a right of appeal under the statute, which is the most sacred right, however, if for any reasons the forum of appeal has not been established enabling the exercise of such valuable right, it (the right) cannot be allowed to be frustrated or stultified, for the lapse on part of the Federal Government as it is the fundamental principle of law that the rights and the remedies of the parties cannot be left in vacuum, thus in the situation the appellant (subject to its locus standi) shall have an independent right to challenge such order under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, if it has been passed by a forum which can be construed to be a forum against which a writ of certiorari would lie, otherwise before the Colors of plenary civil jurisdiction under section 9 of the C.P.C.
7. We have repeatedly asked the appellant's counsel during the course of arguments either to amend the writ petition to challenge that order, or to file a fresh constitutional petition, but for some reason he has been reluctant to take the advice. We are also told by the learned Deputy Attorney General in the Court, that it is mentioned in the comments filed by the respondents that the writ should be filed for assailing the order.
8. As regards the question whether the interim injunction can be granted under Article 199(4) or (4-A), suffice it to say that the said provisions would only be relevant, if a case for the grant of interim injunction is made out on the basis of the contents of the main petition, but where the order of the National Tariff Commission is not under challenge in the petition, how could the interim injunction beyond the scope of the pleadings be granted even ignoring the rule that C.P.C. is applicable to the proceedings under Constitutional jurisdiction as held in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 and also on the rule enunciated in Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519.
9. Before parting it may be pertinent to point out that we have thoroughly scanned the writ petition and even the memo. of appeal in this case, and find not a single word assailing the order dated 7-6-2007 passed by the National Tariff Commission. The cause of action and the entire structure of the case is rested upon one single grievance i.e. for the constitution of the Appellate Tribunal within the parameters of section 64 of the Ordinance, 2000, which as has been mentioned cannot be granted at the moment particularly when the bill for the amendment of the same section has been approved by the Standing Committee and also for the reason that as per the decision of the National Judicial Policy Making Committee, dated 18/19-4-2009, may be the retired Judge of the apex Court cannot be appointed as the Chairman of the Appellate Tribunal. And if any such direction is given now, it shall be difficult to cope with and reverse a situation, which may emerge on account of the amendment.
10. In the light of above, we do not find any merit in this appeal, which is hereby dismissed.
M.B.A./A-152/LAppeal dismissed.