CLC 2000 Judgments

2000CLC4

[Karachi]

Before Rasheed Ahmed Razvi, J

Haji SHARIF KHAN through

Legal Heirs and another‑‑‑Plaintiffs

versus

Raja ABDUR RAHMAN and 6 others‑‑‑Defendants

Suit No.318 of 1976, decided on 30th June, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXII, R.1‑‑‑Death of a party‑‑‑Appointment of legal representative‑‑­Object ‑‑‑Where party to a suit dies, his legal representatives are appointed in order that the suit may proceed and decision be given on the facts of the case‑‑­Original party's right and disabilities are to be considered and not of those of the legal representatives impleaded in place of the deceased party.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & 56‑‑‑Civil Procedure. Code (V of 1908), O.XXII, R.1‑‑‑Suit for declaration and permanent injunction‑‑‑Right to inherit directorship of company‑‑‑Entitlement of such right by legal representatives of the deceased plaintiff‑‑‑Validity‑‑‑Such right could not be granted to the legal representatives of the deceased plaintiff.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. I, R.9‑‑‑Misjoqinder or non joinder of parties in a civil suit‑‑‑Dismissal of suit‑‑‑Validity‑‑‑No suit shall be defeated by reason of misjoinder or non joinder of the parties and every suit will deal with the matter in controversy so far as regards the rights and interests of the parties before the Trial Court.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. I, R.9‑‑‑Misjoinder or non joinder of parties in civil suit ‑‑‑Company‑‑­Directors of a Company were arrayed as defendants but the Company itself was not made as a party in the civil suit‑‑‑Effect‑‑‑Where the Directors of the Company were present in the Court, it could be presumed that the Company was before the Court to all intents and purposes.

(e) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 15 & 16‑‑‑Contract‑‑‑Elements of coercion, undue influence and misrepresentation‑‑‑Proof‑‑‑Where such allegations were pleaded against a contract the same were to be proved in the manner as that of the allegations of fraud‑‑‑Allegations of coercion, undue influence and misrepresentation were to be proved through strong and independent evidence.

Shamir v. Faiz Elahi 1993 SCMR 145; Kazi Noor Muhammad v. Pir Abdul Sattar Jan PLD 1959 (W.P.) Kar. 348; Sheikh Muhammad Obaid v. Muhammad Rafi Qureshi PLD 1962 (W.P.) Kar. 409; Sayad Muhammad v. Fatteh Muhammad and others ILR 22 Cal. 325; Boyse v. Rossborough (1857) 6 HLC 1 (49) and Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624 ref.

(f) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 11‑‑‑"Agreement executed by a minor himself" and "an agreement entered into on behalf of minor by his guardian/parent for his benefit"‑‑‑Distinction‑‑­Where an agreement was executed by a minor himself, the same was nullity in law and did not confer any right or title on the purchaser‑‑‑Agreement by a minor was void as provided by S.11, Contract Act, 1872, and that in favour of a minor was valid and binding.

Ashraf Ali v. Etim Ali and others PLD 1959 Dacca 625; Mst. Amanat v. Mahboob Hussain PLD 1959 (W.P.) Kar. 362; Muhammad Mursaleen v. Syed Noor Muhammad Hussaini PLD 1968 Kar. 163; Haji Noor Muhammad Jamote and another v. Osman and 3 others PLD 1993 Kar. 26; Abdur Rahman v. Abdul Haq and others PLD 1960 Kar. 625; Muhammad Hussain v. Saleem Jan and others PLD 1995 Pesh. 98; Safdar Ali and 3 others v. Muhammad Malik and 4 others 1995 CLC 1751 and Dr. Khalida Malik and 2 others v. Mst. Fareeda Malik and 7 others 1994 MLD 2348 ref.

(g) Specific Relief Act (I of 1877)‑‑

‑‑‑‑Ss. 42 & 56‑‑‑Contract Act (IX of 1872), Ss. 11, 14 & 15‑‑‑Suit for

declaration and permanent injunction‑‑‑Appointment of defendants as Directors of Company‑‑‑Execution of agreement by defendants‑‑‑Contention raised by plaintiffs was that the agreement was a result of coercion, undue influence and misrepresentation and that the defendants were minors at the time of execution of agreement‑‑‑Validity‑‑‑Where the plaintiffs failed to establish that the agreement in question was obtained under duress and coercion, the plaintiff could not challenge the appointment of defendants as Directors or as share­holders of the company and the plaintiffs had become strangers to the company‑‑‑Plaintiffs were not entitled to be appointed as Directors of the Company merely on the fact that the defendants were minors at the relevant day‑‑‑Suit was dismissed accordingly.

Mercantile Cooperative Bank Ltd. v. Messrs Habib & Co. and others PLD 1967 Kar. 755; Muhammad Aslam v. Wazir Muhammad PLD 1985 SC 46; Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67; A. Majid Sama v. The Asbestos Cement Industries Ltd. and another 1996 MLD 803; Sardar Muhammad Ali v. Pakistan PLD 1961 Kar. 88; Government of Punjab and another v. Mst. Kamina and others 1990 CLC 404; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Syed Ghayyur Hussain Shah v. Aziz Alam PLD 1990 Lah. 432; M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83; Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others PLD 1978 Lah. 113; Anwar Hussain v. The Agricultural Development Bank of Pakistan and others 1992 SCMR 1112; Alavi Sons Ltd. v. The Government of East Pakistan PLD 194 Rar. 222; K.P. Ramakrishna Patter v. K.P. Narayana Patter and others ILR 39 Mad. 80; Muhammad Yasin Fecto and another v. Muhammad Raza Fecto and 3 others 1998 CLC 237; Messrs Chalna Fiber Company Ltd., Khulna and others v. Abdul Jabbar and others PLD 1968 SC 381; Fareed Sons Ltd. v. Karachi Cotton Association PLD 1956 Kar. 315 and Parvaiz Aslam Mian Aslam v. Synthetic Chemical Company Ltd., Karachi and another PLD 1980 Kar. 401 ref.

(h) Companies Act (VII of 1913)‑‑‑

‑‑‑‑S. 35‑‑‑Deceased member of Company‑‑‑Right of transfer of shares and other interest of such member to his legal representative‑‑‑Such right was protected by virtue of S.35, Companies Act, 1913.

Afsar Ali Abdi for Plaintiff. Saeed A. Sheikh for Defendants.

Dates of hearing: 27th May and 3rd June, 1999.

2000 C L C 90

[Karachi]

Before Sabihuddin Ahmed, J

Mst. ZUBEDA‑‑‑Plaintiff

versus

M. ABDUL SATTAR and another‑‑‑Defendants

Suit No.622 of 1994, decided on 28th January, 1998.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 113‑‑‑Admitted facts‑‑‑Proof‑‑‑Facts which were admitted need not be formally proved.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. II, R. 2‑‑‑Specific Relief Act (I of 1877), S. 8‑‑‑Suit for possession‑‑‑Suit for possession filed by plaintiff was resisted by defendant contending that plaintiff having failed to sue for possession in an earlier suit subsequent suit for possession was not maintainable under 0. 11, R. 2, C. P.C. ‑‑‑Defendant in earlier round of litigation had also raised question that plaintiff's omission to sue for possession was fatal, but such contention was repelled by Court‑‑‑Relief could not be denied to plaintiff on account of provision of 0.11, R.2, C.P.C. because bar under O.II, R.2, C.P.C. would be attracted only if plaintiff was entitled to relief for possession against defendant at time of filing earlier suit but had omitted to do so.

Abdul Hakeem and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63 ref.

S.A. Hassan for Plaintiff.

Wafi Khan Yousufzai for Defendant No. 1.

Aamir Naqvi for Defendant No.2.

Date of hearing: 15th January, 1997.

2000 C L C 99

[Karachi]

Before Sabihuddin Ahmed, J

GOVERNMENT OF SINDH through

Deputy Commissioner, District Dadu

and another‑‑‑Appellants

versus

RAMZAN and others‑‑‑Respondents

Civil Appeals Nos.95 of 1997 and 13 of 1998, decided on 22nd July, 1998

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 4, 18 & 23‑‑‑‑Acquisition of land‑‑‑Market value‑‑‑Determination of compensation‑‑‑Principles‑‑‑In assessing market value of acquired land for determining its compensation, present use of acquired land alone was not relevant, but its potential value or value on account of use to which such land could be put to use in future, was always relevant consideration for determining its market value.

Government of N.W.F.P. v. Allah Dad and others 1996 SCMR 384; Government of West Pakistan v. Arbab Haji Ahmad Ali Jan and others PLD 1981 SC 516; Collector of Karachi v. Haji Gola PLD 1965 Kar. 413; Muhammad Ibrahim and others v. Province of Sindh and another 1991 MLD 90; Umer Farooq Khan v. N.W.F.P. 1998 CLC 713; Government of Pakistan v. Sikandar Khan and others PLD 1987 Pesh. 68; Muhammad Farid Khan and others v. Collector No.5, Terbela Dam Project, WAPDA PLD 1990 Pesh. 97; Land Acquisition Collector v. Muhammad Iqbal 1992 SCMR 1245; Malik Aaman and others v. Land Acquisition Collector and others PLD 1988 SC 32; Government of Sindh v. Shakir Ali Jafri 1996 SCMR 1361; Abdul Qayoom and others v. Pakistan 1996 SCMR 1820; Province of Punjab v. Abdul Majeed and others 1997 SCMR 1692; Muhammad Rafiq Khan v. Province of Punjab 1992 CLC 1775; Muhammad Ibrahim and others v. Province of Sindh 1991 MLD 90 and Government of Sindh v. Shakir Ali Jafri 1991 MLD 1258 ref.

Rafiq Ahmad for Muhammad Saleem Samo, Addl. A. ‑G., Sindh for Appellant.

Ghulam Rasool Qureshi, for Respondents.

Date of hearing: 25th June, 1998.

2000 C L C 111

[Karachi]

Before Rasheed Ahmed Razvi, J

ROSHAN BAI‑‑‑Plaintiff

versus

PAKISTAN STEEL MILLS CORPORATION

through Managing Director

and 2 others‑‑‑Defendants

Suits Nos.697 and 707 of 1988, decided on'l0th August, 1998.

Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Suit for compensation‑‑‑Evidence on record had proved that deceased died in road accident due to negligent, fault and wrongful acts of defendant‑‑‑Suit filed by legal representatives of deceased was decreed by Court taking into consideration earning capacity and age of the deceased.

Qazi Arifuddin and another v. Government, of Sindh and others PLD 1991 Kar. 291; Messrs Hayat Services (Pakistan) Limited v. Kandan 1989 CLC 2153; Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Hasib and another 1993 SCMR 848; Bhurmal and Mitra Motor Association v. Raghunath Bansilal Kasat AIR 1963 Bom. 144; Halsbury's Laws of England and Parkway v. South Wales Transport Company Limited (1950) 1 All ER. 292; Syed Afzal Hussain v. Karachi Transport Corporation and another PLD 1997 Kar. 253; General Manager, Banglore Transport Services v. N. Narasima Haiah and others AIR 1977 Kar. 6; Mst. Qaiser Jehan and 3 others v. Pakistan 1985 MLD 255; Ehsan Ali v. K.R.T.C.. PLD 1968 Kar. 460; Mrs. Asima Ibrahim v. Sindh Road Transport Corporation PLD 1962 Kar 236 and S. Iqbal Hussain Jafferi v. K.E.S.C. 1994 CLC 1903 ref.

Nasir Maqsood for Plaintiff.

Akhlaq Ahmad Siddiqui for Defendants Nos. l and 2.

S. Mahmoodul Hasan (absent) for Defendant No.3.

Dates of hearing: 30th April and 29th May, 1998.

2000 C L C 121

[Karachi]

Before Syed Haider Ali Pirzada

and Salahuddin Mina, JJ

KARACHI TRANSPORT CORPORATION

through Secretary‑‑‑Appellant

versus

QAISAR ALI and another‑‑‑Respondents

High Court Appeals Nos. 105, 106, 107, 108, 109, .110 and 111 of 1986, decided on

11th October, 1989.

(a) Fatal Accidents Act (XHI of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Suit for compensation‑‑­Suit filed by legal representatives of deceased who had died in accident caused due to rash and negligent driving by driver of defendant/appellant Corporation, was decreed by High Court‑‑‑Defendant Corporation which was Government Corporation had filed appeal against judgment and decree of High Court‑‑­Validity‑‑‑Held, public functionaries were to act in aid of advancing cause of justice and not to frustrate or defeat same‑‑‑Public functionary in order to resist genuine claim arising out of a fatal accident spending considerable amount on litigation instead of settling the matter with heirs of deceased persons was deprecated with remarks that Government was under obligation to protect and help its citizens and not to harass them‑‑‑High Court appeal was dismissed, in circumstances.

(b) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Suit for compensation‑‑‑High Court appeal‑‑‑Legal representatives of deceased who had died in accident allegedly caused by driver of bus owned by defendant‑Corporation due to rash driving and negligence of driver, had filed suit for compensation against defendants‑‑‑Person who survived the accident had proved factum of negligence of driver of bus‑‑ Evidence produced by defendants in defence had not shaken evidence produced by plaintiffs in proof of their claim‑‑‑Suit filed by legal representatives for compensation was rightly decreed by High‑Court in circumstances.

Muhammad Aslam Qureshi for Appellant.

Muhammad Maqsood for Respondents.

Dates of hearing: 4th September and l lth October, 1989.

2000 C L C 135

[Karachi]

Before Rasheed Ahmed Razvi, J

TREASURER OF CHARITABLE ENDOWMENT

FOR PAKISTAN‑‑‑Plaintiff

INAMUR REHMAN ALVI‑‑‑Defendant

Suit No.407 of 1974, decided on 20th May, 1998.

(a) Administration of justice‑‑‑

‑‑‑‑ Courts were competent and had inherent powers to pass proper order to avoid multiplicity of proceedings, to shorten litigation and to do complete ‑justice between parties and to mould the relief according to altered circumstances to the larger interest of justice.

Fauji Foundation and another v. Shamimur Rehman P1.D 1983 SC 457; lnamur Rehman v. Federation of Pakistan and others 1992 SCMR 563; Abul A'la Maudoodi v. Government of Pakistan PLD 1964 SC 673; Ms.. Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Karamat Ali and another v. Muhammad Younas Haji and others PLD 1963 SC 191; Mst. Ghulam Bibi v Sarsa Khan PLD 1985 SC 345; Bashir Ahmed Khan v. Qaiser Ali Khan PLI} 1973 SC 503; National Shipping Corporation v. Messrs A.R. Muhammad Siddik and another 1974 SCMR 131; Muhammad lqhal v_ Mirza Begurn and others 1992 MLD 1257; Muhammad Ashraf Sheikh v. Messrs Aeroflot Air Lines, Lahore and another 1993 CLC 555; Sabir Ali v. Mst. Zubaida Bibi 199? MLD 321; Jan Muhammad v. Muhammad Munsif and 2 others PLD 1986 SC (AJ&K) 98; Mst. Barkat Bibi v. Khushi Muhamma¢ and others 1994 SCMR 2240; Muhammad Din v. Muhammad Shaft and others PLD 1971 SC 762; Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220; Qasim and others v. The State PLD 1967 Kar. 233; Mst. Qaiser Khatoon and 12 others v. Moulvi Abdul Khaliq and another PLD 1971 SC 334; Manaka v, ROA, AIR 1950 PC 25; Allah Din v. Habib PLD 1982 SC 465; Mst. Khatun v Malla and 5 others 1974 SCMR 341; Muhammad Aslam Khan v. Feroze Shah AIR 1934 PC. 228 and Nand Kishwar Bux v. Gopal Bux Rai AIR 1940 PC 93 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art, 117‑‑‑Burden of proof‑‑‑Question of burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion.

Mst. Qaiser Khatoon and 12 others v, Moulvi Abdul Khaliq

and another PLD 1971 SC 334 rel.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 117 & 118‑‑‑Burden of proof‑‑‑When of no significance‑‑‑Burden of proof loses its importance after all the relevant evidence has been adduced and placed on record.

Manaka v, ROA AIR 1950 PC 25 rel.

Saeed A. Sheikh for Plaintiff, Muhammad Ali Sayeed for Defendant.

2000CLC213

[Karachi]

Before Dr. Ghous Muhammad, J.

EJAZUDDIN ‑‑‑ Appellant

versus

Mst, ZAKIA SULTANA through her Attorney Mrs. Qudsia Durrani‑‑‑Respondent

First Rent Appeal No.330 of 1996, decided on 3rd February, 1999.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 2(f)(j) & 15(2)(ii) & (vii)‑‑‑Bona fide personal need of landlord‑‑­Default‑‑‑Relationship of landlord and tenant‑‑‑Tenant ' denied relationship of landlord and tenant between the parties‑‑‑Landlord filed his own affidavit‑in ­evidence and also of two witnesses and they all were cross‑examined by tenant and side of landlord was closed‑‑‑Tenant was given ample opportunity to lead evidence, but neither he filed` his affidavit‑in‑evidence nor produced evidence in proof of his claim‑‑‑Evidence of landlord having gone unchallenged, ejectment application filed by landlord against tenant on grounds of default in payment of rent and personal bona fide need, was rightly allowed by Rent Controller.

Abid Hameed Puri (absent) for Appellant.

Shoukat Hayat for Respondent.

Date of hearing 3rd February, 1999.

2000 C L C 230

[Karachi]

Before Syed Deedar Hussain Shah, J

ABDUL RAUF‑‑‑Appellant

versus

Mrs. SHEREEN HASSAN ‑‑‑Respondent

First Rent Appeals Nos. 155 and 156 of 1997, decided on 27th May, 1998.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Landlady had sought ejectment of tenant from premises in dispute on ground that she required premises for setting up a clinic for her daughter who was a qualified doctor as she had cleared her M.B.,B.S. Examination‑‑‑Landlady not only had produced academic certificate of her daughter showing that she was having a very brilliant academic career, but also had produced approved plan to show that she intended to set up a clinic and laboratory m premises in dispute which plea was not disputed or denied by tenant‑‑‑Tenant had also admitted that daughter of landlady was a qualified doctor‑‑‑Tenant had simply contended that landlady had filed ejectment application against him for enhancement of rent and that premises in dispute was not suitable for establishment of clinic‑‑Contention of tenant was repelled‑‑‑Landlady had the prerogative to choose any premises for business and having proved her personal bona fide need in respect of premises, tenant was rightly ordered to be ejected on that ground.

Syed Farzan Rizvi v. Khalilur Rehman 1981 CLC 1223; Muhammad Yousuf v. Abdullah PLD 1980 SC 298; Mrs. Zohra Begum v. Messrs Pakistan Burmah Shell Ltd. 1992 SCMR 943; Mst. Razia Begum v. Messrs Pakistan Medical and General Stores 1982 CLC 659; Mst. Farukh Nisa v. Safdar Ahmed and 6 others PLD 1985 Kar. 639; Messrs Habib Bank Limited v. Messrs Thal Jute Mills Ltd. 1988 CLC 2310; Zaheer Ahmad Khan v. Mst. Amina Begum 1989 SCMR 1370; Karim Bakhsh v. Haji Arthi Khan and others 1993 SCMR 178; M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200; Sheikh Abdus Sattar v. Malik Muhammad Afzal and others PLD 1985 SC 148; Muhammad Anwar v. Jamaluddin 1996 SCMR 771; Wasim Ahmad Adenwalla v. Shaikh Karim Riaz 1996 SCMR 1055; Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178 and Malik Muhammad Ramzan v. General Store and another 1995 SCMR 1125 ref.

Muhammad Amin Lakhani for Appellants.

Abubakar I. Chundrigar and M.G. Hasan for Respondents.

Dates of hearing: 9th; 30th March and 18th May, 1998.

2000 C L C 247

[Karachi].

Before Amanullah Abbasi, J

MUSHEER AHMED SIDDIQUI ‑‑‑ Appellant

versus

Mrs. BADARUN NISSA‑‑‑Respondent

First Rent Appeal No.58 and Civil Miscellaneous Application No.119 of 1998, decided on 20th April, 1999.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 15(2)(vii), 16(1)(2) & 18 ‑Change of ownership of premises ‑‑‑Non­compliance of tentative rent order‑‑‑Striking off defence of tenant‑‑‑Landlady after purchasing premises in dispute from original owner issued notice of intimation of transfer of ownership to tenant, who received notice and gave reply of said notice to landlady‑‑‑Rent Controller passed tentative rent order whereby tenant was directed to deposit arrears of rent and future monthly rent in name of landlady, but tenant denied relationship of landlord and tenant between the parties and deposited rent in name of previous owner of premises instead of landlady despite receipt of notice of change of ownership of premises‑‑‑Tenant, who earlier had accepted relationship of landlord and tenant between the parties, could not back out and say that no relationship of landlord and tenant existed‑‑‑Statutory tenancy had commenced as soon as notice under S.18, Sindh Rented Premises Ordinance, 1979 was received by tenant‑‑‑Once it was brought to the notice of tenant that ownership of premises had‑ changed, it was his responsibility to tender rent to the landlady‑‑‑Tenant, despite having knowledge of change of ownership of premises, having deposited rent in name of previous owner, his intention was not bona fide‑‑‑Defence of tenant, in circumstances, was rightly struck off for non‑compliance of tentative rent order.

PLD 1982 Lah. 519; 1984 CLC 1333; 1980 CLC 1163; PLD 1978 Kar. 145; 1996. CLC 1312; PLD 1991 SC 711; 1988 SCMR 970; 1991 MLD 1390; 1994 CLC 1094; 1995 CLC 23; 1991 SCMR 64; 1979 SCMR 496; 1981 SCMR 538; PLD 1983 SC 1; 1985 SCMR 24; 1986 SCMR 751; 1989 CLC Kar. 157; 1990 CLC 904; 1993 CLC 1696; 1995 CLC 1722; 1995 MLD 422; 1993 SCMR 1360 and 1990 CLC 661 ref.

Zahid Marghoob for Appellant.

S.M. Aamir Naqvi for Respondent.

2000 C L C 263

[Karachi]

Before Rasheed Ahmed Razvi, J

MUHAMMAD UMAR‑‑‑Appellant

versus

RIAZ HUSSAIN QURESHI and 3 others‑‑‑Respondents

First Rent Appeal No. 169 and 170 and Civil Miscellaneous Applications Nos. 1509 and 1510 of 1995, decided on 24th March, 1999.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 21‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.19‑‑‑Default in payment of rent‑‑‑Dismissal of appeal for non‑prosecution ‑‑‑Restoration‑‑­Appellant and his counsel having failed to appear in Court on date fixed for hearing of appeal, appeal was dismissed for non‑prosecution‑‑‑Appeal having been fixed for regular hearing, presence of appellant in person was‑not necessary‑‑‑Counsel for appellant had successfully shown that he was not in knowledge of date of hearing‑‑‑Absence of counsel for appellant neither was deliberate nor wilful‑‑‑Matter was of single day default‑‑‑Application for re­admission of appeal dismissed for non‑prosecution was filed within a period of fifteen days‑‑‑Appellant, having shown sufficient reason for restoration of appeal, application for restoration of appeal was accepted subject to payment of costs.

Mst. Mariam Bai and another v. Mst. Mehrunnisa Begum 1985 SCMR 2064; Inamur Rehman Gillani v. Jalal Din and another 1992 SCMR 1895; Zulfiqar Ali v. Lal Din and another 1974 SCMR 162; Muhammad Nawaz and 3 others v. Mst. Saktna Bibi and 3 others 1974 SCMR 223; Dhanlishaw Bahramli Ghadialy and another v. Abdul Latif PLD 1983 Kar. 121; , Bashir Ahmad and others v. Settlement and Rehabilitation Commissioner 1982 SCMR 188; Haji Abdul Hameed through Legal Heirs v Mrs. Mumtaz Ayub 1985 SCMR 1595; Jhanda v. Maqbool Hussain and others 1981 SCMR 126 and Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270 ref.

Abdul Hameed Lakhani for Appellants.

K.B. Bhutto and Arshad Hussain for Respondents.

2000 C L C 287

[Karachi]

Before Mushtaq Ahmed Memon, J

PICIC‑‑‑Petitioner

versus

FRONTIER CERAMICS LTD: and others‑‑‑Respondents

Suit No. 1,41 and Civil Miscellaneous Applications Nos.4746, 4747, 4791, 4789,‑4837, 4836, 4922, 7859, 7860, 7848 and 7849 of 1998, decided on 10th September, 1998.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 2(c) & 9‑‑‑Suit for recovery of Bank loan‑‑‑Expression "borrower" in S.2(c), Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Applicability‑‑‑Proceedings under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑­Validity‑‑‑Where defendants had not undertaken any personal liability in relation to the loan in question, recovery proceedings could not be maintained against such defendants‑‑‑Such defendants were struck off from the recovery proceedings.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 10‑‑‑Civil Procedure Code (V, of 1908), O.XXXVII, R.3‑‑‑Leave to appear and defend‑‑‑Provision of S.10. Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and O. XXXVII, R.3, C.P.C.‑‑‑Distinction‑‑‑Words "give leave to appear and to defend the suit" used in the latter provision have been substituted in the former provision with the words "give leave to defend the suit"‑‑‑Implication‑‑‑Defendant in a recovery suit under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 can appear even without leave to defend‑‑‑Change in both the provisions seems to be conscious and deliberate.

(c) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 9‑‑‑Civil Procedure Code (V of 1908), S.35‑A‑‑‑Misjoinder of parties ‑‑‑Misjoinder of parties in a banking suit would justify award of maximum amount of compensatory costs since upon service of summons, a defendant was required to take various steps for defending the proceedings.

Muhammad Akmal Waseem for Petitioner.

Saalim Salam Ansari for Defendants Nos. l to 6 and 7.

Bashir Ahmed Pan for Defendants Nos.3 and 8.

Makhdoom Ali Khan for Defendant No.4.

2000 C L C 320

[Karachi]

Before Rasheed Ahmed Razvi, J, Mst: ANEELA ‑‑‑ Petitioner

versus

Qari ABDUL MAJID and 2 others‑‑‑Respondents

Constitutional Petition No.S‑130 of 1996, decided on 17th March, 1999.

(a) Guardians and Wards Act (VIII of 189(1)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O.V, R.15, & O.IX, R.7‑‑­West Pakistan Family Courts Act (XXXV of 1964), S.8(6)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for custody of minors‑‑‑Service of notice on mother of minors (defendant)‑‑‑Ex parte order, setting aside of‑‑‑Service of notice of suit on mother (defendant) through her brother was held good and on failure of her to appear on adjourned date of hearing, ex parte order was passed against her‑‑‑Validity‑‑‑Trial Court, in all fairness should have ordered repetition of fresh notices in ordinary course as well as through registered post to the mother‑‑‑Where the defendant was a woman and where question of custody of minors was involved, Courts should adopt more reasonable approach and much caution while holding service of notice on a woman defendant‑‑‑Defendant having shown sufficient cause for her non‑appearance on adjourned date of hearing, order passed by Trial Court on said date declaring service of notice on defendant as good was incorrect and not warranted in law‑‑‑Order of Trial Court was set aside by High Court in exercise of its Constitutional jurisdiction.

(b) Guardians and Wards'Act (VIII of 1890)‑‑‑

‑‑‑‑Ss. 12 & 25‑‑‑Civil Procedure Code (V of 1908). O.V, R.15 & O.IX, R.7‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.8(6)‑‑‑Suit for custody of minors‑‑‑Service of notice on defendant (mother)‑‑‑Real dispute being not between the spouses, but Court being guardian, was duty bound to determine as to where welfare of ward/child lay and said finding could not be arrived at unless party in whose custody minors were living, was extended proper opportunity to contest matter on merits.

Muhammad Saad Qureshi for Petitioner.

Syed Abdul Waheed for Respondents.

Date of hearing: 17th March, 1999.

2000 C L C 364

[Karachi]

Before Mrs. Majida Razvi

and Saiyed Saeed Ashhad, JJ

TASNIM and another‑‑‑Appellants

versus

RUSTOM ALI and others‑‑‑Respondents

High Court Appeal No. 137 of 1997, decided on 14th January, 1999.

Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 290, 314 & 325‑‑‑Winding up of a company‑‑‑Jurisdiction of Court‑‑­Direction for purchase of shares of company by any one of the parties‑‑­Where the winding up of the company would unfairly prejudice the shareholders and creditors of the company, an application under 5.290, Companies Ordinance, 1984 could be made by any of the parties, provided requirements of S.290(l), Companies Ordinance, 1984, were met‑‑­Section 290(1), Companies Ordinance, 1984 empowered the Court to make such order as might be deemed fit with a view to bring an end to the matters complained of either by regularizing the affairs of the company in future or directing the purchase of share of the oppressed members of the company either by the company or by other members‑‑‑Two Chartered Accountants were appointed with the consent of the parties for determining/fixation of the value of the shares of the company‑‑‑Respondents could not avoid or wriggle out of the consent given by them‑‑‑Findings of said Chartered Accountants could not be said to be unfair, unjust and improper so as to discard or ignore them in spite of differences in the value/prices fixed by both of them‑‑‑ Respondents were directed to sell their shares in favour of the other party in circumstances.

Chander Krishan Gupta v. Pannalal Girdhari Lai (Private) Ltd. and others (1984) 55 Com. Cas. 702; Muhammad Aslam v. Member, Board of Revenue and others PLD 1980 SC 45; Muhammad Bibi and others v. Abdul Ghani PLD 1973 Kar. 444; Ladli Prasad Jaiswal v. The Karnal Distillery Co. Ltd. PLD 1965 SC 221; Brush Rehman Ltd. v. Brush Electrical Engineering Co. Ltd. 1986 SCMR 1612; Kruddson Ltd., Karachi PLD 1972 Kar. 376 and Iqbal Alam and another v. Plasticraftors (Pvt.) Ltd. and others 1991 CLC 589 ref.

Rajahmundry Electric Supply Corporation Ltd. v. A. Nageshwara Rao and others AIR 1956 SC 213; K.R.S. Narayana Iyengar and others v. T.A. Mani and others AIR 1960 Mad. 338 and Muhammad Aslam v. Board of Revenue and others PLD 1980 SC 45 ref.

Muhammad Ali Saeed for Appellant.

A.I. Chundrigar for Respondent.

2000 C L C 381

[Karachi]

Before Rasheed Ahmed Razvi, J

BIBI KHALIDA and‑4 others‑‑‑Plaintiffs

versus

GOVERNMENT OF SINDH through Secretary, Ministry of Health, Sindh Secretariat, Karachi

and 2 others‑‑‑Respondents, Suit No.693 of 1998, decided on 30th June, 1999.

Fatal Accidents Act (X111 of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for recovery of amount of compensation‑‑­Assessment‑‑‑Evidence on record had proved that deceased who was father of plaintiffs had died as a result of rash and negligent driving by defendant, who at the time of accident was driving the bus‑‑‑Employers had not denied that the driver of bus was not in their employment or that he was not performing his official duty on the date of accident‑‑‑Employers, in circumstances were responsible for acts of their driver who was their ,employee‑‑‑Suit filed by legal representatives of deceased was decreed and amount of compensation was assessed keeping in view earning capacity of deceased and his age and normal expectancy of life.

Mst. Sakina and 3 others v. Messrs National Logistic Cell and 2 ' others 1995 MLD 633; Anisur Rehman v. Government of Sindh and others 1997 CLC 615; Spin Gul and 2 others v. Ikramul Haq and another 1987 MLD 2402; Khursheeda and 3 others v. Haji Qudrutullah and another 1988 CLC 1062; Syed Afzal Hussain v. Karachi Transport Corporation and another PLD 1987 Kar. 253; Mrs. Gul Bano and 4 others v. Muhammad Ramzan and another 1982 CLC 1120; Mst. Zebunnisa and others v. Sindh Road Transport Corporation and another 1982 CLC 1228; Messrs Hayat Services (Pakistan) Ltd. v. Kandan 1989 CLC 2153; Federation of Pakistan and another v. Hafiza Malika Khatoon Begum and others 1996 SCMR 406; Qazi Arifuddin and another v. Government of Sindh and 2 others PLD 1991 Kar. 291; Pakistan Steel Mills Corporation Ltd. and another v. Malik Abdul Habib and another 1993 SCMR 848; Mst. Bibi Sooraj Jehan v. Mir Azam PLD 1993 Kar. 168; S. Iqbal Hussain v. K.E.S.C. 1994 CLC 1903; Shadman v. K.T.C. 1995 CLC 1714 and Gul Khan v. K.T.C. and another 1997 CLC 932 ref.

Nasir Maqsood for Plaintiffs.

Abdul Muqtadir Khan for Defendants.

Imdad Hussain Kazi (absent) for Defendant No.3.

Dates of hearing: 4th March, 1998 and 28th May, 1999.

2000 C L C 393

[Karachi]

Before Rana Bhagwan Das and Mushir Alam, JJ

YASIR ARFAT ‑‑‑ Petitioner

versus

VICE‑CHANCELLOR, MEHRAN UNIVERSITY

and others‑‑‑Respondents

Constitutional Petition No.D‑80 of 1998, decided on 6th October, 1999.

(a) Educational institution‑‑‑

‑‑‑‑Prospectus of educational institution established under the Act of Parliament‑‑‑Credence‑‑‑Prospectus of any educational institution is a complete code in itself providing for the courses in various disciplines and facilities offered by it, admission policy, hostel, eligibility, criteria and disciplinary regulations and other allied matters to regulate its day to day affairs and relationship between the students and the institute‑‑‑Prospectus are issued after due consultation by the institute in consonance with admission policy issued by the Government‑‑‑Prospectus having been issued in exercise of delegated authority has binding force and is to be respected and enforced.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Part II, Chap. 2 [Arts. 29 to 40]‑‑‑Principles of policy‑‑‑Invoking of such principles in the institutions established under the Act of Parliament‑‑­Scope‑‑‑State, under provisions of Part II, Chap.2 of the Constitution is responsible not only to promote social justice and to eradicate social evil, but also to decentralise the Government administration so as to facilitate expeditious disposal of its business to meet the convenience and requirement of public‑‑‑Such being cardinal rule of good governance is to be invoked in the institutions, established under the Act of Parliament.

(c) Prospectus of Mehran University of Engineering and Technology Jamshoro (1995‑96)‑‑‑

‑‑‑‑Regln.ll‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Educational institution‑‑‑Migration from one educational institution to the other on the directions of the Chief Minister of the Province‑‑‑Validity‑‑‑No authority howsoeverhigh might it be could be allowed to superimpose its dictates that might amount to bypass the Rules and Regulations framed under the delegated authority ‑‑‑Chief Minister, therefore, had no authority to issue direction for migration‑‑‑Migration of student from one institution to the other was not legal in circumstances.

Gul Khan v. Government of Balochistan PLD 1989 Quetta 8; Naeem Mirza v. Government of Sindh and 2 others 1987 CLC 1487; Inayatullah v. Altaf Hussain and another 1997 CLC 149; Miss Shazia Altaf v. The Secretary, Health Department, Government of Punjab, Lahore and 3 others 1997 CLC 358; Miss Aisha Rehman v. Government of Sindh and another 1998 CLC 1625 and Shahid Ali v. Karachi University and 3 others 1998 CLC 1449 ref.

Saifuddin Shah and Abdul Fattah Malak for Petitioner.

Niamatullah Soomro for Respondent No. 1.

Zawar Hussain lafferi, Addl. A‑G. for Respondent No.2.

Date of hearing; 17th August, 1998.

2000 C L C 406

[Karachi]

Before Rasheed Ahmed Razvi and Sabihuddin Ahmed, JJ

ZIAULLAH KHAN‑‑‑Petitioner

versus

DISTRICT MAGISTRATE, DISTRICT NAWABSHAH

and 3 others‑‑‑Respondents

Constitutional Petition No.D‑165 of 1997, decided on 15th October, 1997.

(a) Pakistan Citizenship Act (II of 1951)‑‑‑

----S, 17----Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑--‑Domicile certificate‑‑‑Refusal of District Magistrate to issue such certificate to the family of petitioner‑‑‑Ground for such refusal was shifting of ‑the family of petitioner to another district‑‑‑Validity‑‑‑Domicile of a person was related to the whole country and the same had nothing to do with the question of permanent residence of such person in a district or any particular part of the country‑‑‑District Magistrate having applied wholly irrelevant criteria and legal requirements for grant of a domicile certificate, his order was set aside and case was remanded for decision afresh in accordance with requirements of Pakistan Citizenship. Act.

Muhammad Yar khan v. Deputy Commissioner/Political Agent. Loralai end another 1980 SCMR 456 and Miss Mehurn Nissa Baloch N. Appellate Committee, Karachi and 2 others PLD 1978 Kar. 214 rel.

(b) Pakistan Citizenship Act (III of 1951)‑‑‑

‑‑‑‑S. 17‑‑‑Sindh Permanent Residence Certificate Rules, 1971, R.4‑‑­Don:icile certificate, issuance of‑ ‑Concept of domicile and that of certificate of permanent or ordinary residence‑‑‑Distinction‑‑‑Former related to the Status of a per‑on and involved a question of lam, while the latter was ‑a question of tact.

Muhammad Yar Khan v. Deputy Commissioner/Political Agent, Loralai and another 1980 SCMR 456 rel.

Ahsanul Siddiqui for Petitioner:

Ghulam Shabir Memon for Addl. A.‑G., Sindh for Respondents.

Date of hearing: 15th October, 1997. ‑ ‑‑

2000 C L C 414

[Karachi]

Before Mushir Alam, J

SOUTHERN GAS CO. LTD. and another‑‑‑Appellants

versus

Dr. ABDUL RASHID PIRZADA and others‑‑‑Respondents

First Civil Appeal No. 16 of 1990, decided on 13th October, 1999, (a) West Pakistan Civil Courts Ordinance (II of 1962)‑‑‑---

‑‑‑‑S. 18‑‑‑Civil Procedure Code (V of 1908), S.104‑‑‑Appeal before High Court‑‑‑Maintainability‑‑‑Valuation of suit was worked out to be Rs.115,165.31 and the appeal was filed on 15‑11‑1990‑‑--Pecuniary jurisdiction of District Judge at the relevant time was Rs.50,000 which limit was enhanced to Rs.2,50,000 by virtue of amendment made in S.18, West Pakistan Civil Courts Ordinance, 1962 on 22‑2‑1992‑‑‑Valuation of the suit worked out being more than the pecuniary jurisdiction of the District Judge, appeal was maintainable before the High Court.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 47‑‑‑Executing Court, power of‑‑‑Scope‑‑‑All questions arising between the parties to the suit, relating to the execution, discharge or satisfaction of the decree, are to be determined by the Executing Court.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 47 & 104‑‑‑Execution of decree‑‑‑Trial Court did not calculate the decretal amount and the same was calculated by the Executing Court‑‑‑Validity‑‑‑Executing Court had rightly undertaken to calculate such amount by appointing a Commissioner to calculate the same‑‑‑Both the parties laid their respective claims before the Commissioner, who verified the same and had worked out the amount‑‑‑Order passed by the Executing Court was based on sound proposition of facts and law which did not warrant any interference.

(d) West Pakistan Civil Courts Ordinance (II of 1962)‑‑‑

‑‑‑‑Ss. 2(b) & 18‑‑‑Value of suit, calculation of‑‑‑Purpose‑‑‑Value for purpose of suit was not only the amount that had been specifically mentioned by the plaintiff but was also the amount not calculated and later on worked out by the Executing Court‑‑‑For all intents and purposes, such amount calculated would be actual value for determining the forum of appeal and the same would also be equally relevant for the purpose of payment of court‑fee.

Dawid Lawrence for Appellants.

A.M. Mobeen Khan for Respondents .

Date of hearing: 17th September, 1999.

2000 C L C 443

[Karachi]

Before Rana Bhagwan Das and Mushir Alain, JJ

Mir GHULAM ABID KHAN‑‑‑Petitioner

versus

PAKISTAN through Secretary and another‑‑‑Respondents

Constitutional Petition No.D‑70 of 1986, decided on 7th October, 1999, (a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Part II, Chap.2 [Arts.29 to 40], Arts.274 & 199‑‑‑Constitutional petition‑‑‑Principles of Policy‑‑‑Liabilities and obligations of Government‑‑­Applicability‑‑‑Stopping of hereditary political pension‑‑‑Such pension was granted in favour of grandfather of petitioner which continued to be paid by the successive Governments from time to time and as such remained to be the duty and Constitutional obligation of the Federal Government‑‑‑Such obligation and commitment must be honoured to consolidate public confidence in the commitments made by the Government and the same could not be ignored and overlooked ‑‑‑Non-fulfilment of liabilities and obligations of the Government was violative of the fundamental Principles of Policy guaranteed under the Constitution.

(b) General Clauses Act (X of 1897)‑‑‑-

‑‑‑‑S. 21‑‑‑Locus poenitentiae, principle of‑‑‑Limitations on the power exercised by Competent Authority‑‑‑Scope‑‑‑Provisions of S.21 of General Clauses Act, 1897, postulate that an Authority which passes an order is competent to vary, rescind or cancel the order passed by that Authority but such power is not absolute as the same is subject to certain limitations‑‑­Where the order sought to be varied, rescinded or cancelled is communicated to other party and subsequent to that communication that party acts upon such order, a very valuable right accrues to that party‑‑‑Authority passing such order becomes functus officio to vary, rescind or cancel its earlier order as the law does not allow "volte face" to the Authority in circumstances.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 274‑‑‑Constitutional petition‑‑‑Liabilities and obligations of Government‑‑‑Stopping of hereditary political pension‑‑‑Such pension was granted in favour of grandfather of the petitioner and the same continued by the successive Governments‑‑‑Stoppage of payment of such pension‑‑­Validity‑‑‑Where the Government felt the sanction accorded by the President was not required to be implemented it was incumbent upon the Government to refer back the case to the Sanctioning Authority for review of the sanction if so permitted by law and the circumstances‑‑‑Without adopting such‑course Government declined implementation of lawful Presidential Order‑‑‑Act of the Government withholding political pension to the petitioner was without lawful authority and of no legal effect in circumstances.

Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Muhammad Nawaz v. Secretary, Irrigation and Power PLD 1973 Quetta 14; Muhammad‑Aslam Khaki v. Vice‑Chancellor, Gomal University, D.I. Khan PLD 1980 Pesh. 128 and Muneeb Nazir Shah v. Azad Kashmir Government PLD 1985 Azad J&K 17 ref.

S. Ali Aslam Jafri for Petitioner.

Abdul Ghani Shaikh, Dy.A.‑G. for Respondent No. 1.

Zawar Hussain Jafri, Addl. A.‑G. for Respondent No.2.

Date of hearing: 22nd September, 1999.

2000 C L C 519

[Karachi]

Before Syed Deedar Hussain Shah

and Anwar Zaheer Jamali, JJ

Ghazi QAISER PERVAIZ and another‑‑‑Appellants

versus

Ghazi FAISAL PERVAIZ and another‑‑‑Respondents

High Court Appeal No. 133 of 1999, decided on 11th October, 1999.

Civil Proce111T Code (V of 1908)‑‑‑

‑‑‑‑S. 104 & O. XII, R. 6‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑­High Court appeal‑‑‑Judgment on admission‑‑‑Suit for partition was filed by the appellants‑=‑All properties owned by the deceased father of the parties were not included in the suit ‑‑Application of the appellants under O.XII, R.6, C.P.C., was dismissed by Trial Court‑ ‑‑Contention of respondents was that unless all the properties were included, suit could not be decreed on the admission of respondents‑‑‑Validity‑‑‑Where certain other movable and immovable properties were left behind by the deceased, the same should also be the subject‑matter of partition proceedings in the suit‑‑‑Admission made by respondents in their written statement that suit property for which the partition had been sought by appellants was jointly owned by.4he parties and that the parties were "Sunni" Muslims and were entitled to their respective shares in the suit property would not constitute an unqualified and unconditional admission, entitling the appellants to get their suit decreed on such admission‑‑‑Appeal being without merits was dismissed in limine. Atatiliah Zia v. Pakistan Industrial Development Corporation 1986 MLD 754; Sheikh Mehmood Ahmad v. Dr. Ghaith Pharaon and 3 others 1987 CLC 2131; Sahib Din and another v. Mst. Hashacn Bibi and 2 others 1980 CLC 121 and Syed Niamat Ali and 4 others v. Dewan Jairam Dass and another PLD 1983 SC 5 distinguished.

Kassamali Alibhoy v. Shaikh Abdul Sattar PLD 1966 (W.P.) Kar. 75; Wazedunnessa Khatun v. Daliladdin alias Dalu and others 1971 DLC 703; Shah Zaman v. Alif Jan and another 1994 CLC 191; Izzat Khan and another v. Ramzan Khan and others 1993 MLD 1287 and Macdonald Layton & Company Pakistan Ltd. v. Uzin Export Import Foreign Trade Co. and others 1996 SCMR 696 ref.

S.M. Akhtar Rizvi fok Appellants. Muniruddin Alvi for Respondent No. l Ghulam Abbas SOOmro for Respondent No.2

2000CLC541

[Karachi]

Before Ghulam Rabbani, J, Syed BABAR HUSSAIN RIZVI‑‑‑Appellant

versus

STATE LIFE INSURANCE CORPORATION

OF PAKISTAN‑‑‑Respondent

First Rent Appeal No.219 of 1999, decided on 13th December, 1999.

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 15(2)(ii) & 19‑‑‑Ex parte order and ex parte proof‑‑‑Tenant having failed to appear on the date finally fixed for hearing, he was proceeded ex pane‑‑‑Application for dismissal of ex parte proceedings filed by tenant was dismissed and matter was adjourned for order as tenant had failed to disclose any reason for his absence on the date of hearing‑‑‑Affidavit‑in‑evidence was filed by employee of landlord for ex parte proof and Rent Controller on basis of material record and said affidavit, passed ex parte ejectment order against tenant and application of tenant for recalling said order was dismissed‑‑‑Validity‑‑=Affidavit‑in‑evidence filed by employee of landlord neither bore date of its presentation nor it bore signature or initial of Rent Controller or of any authorised officer of Court as a mark of presentation‑‑­Copy of the affidavit was also not supplied to tenant to afford him opportunity to challenge the affidavit or to cross‑examine the witness of landlord‑‑‑Tenant could not be prevented from participating in subsequent proceedings and he ought to have been given opportunity to cross‑examine witness of landlord‑‑‑Tenant having been deprived of said right, order of Rent Controller was set aside to the extent that matter was remanded for passing orders afresh on merits after affording the tenant an opportunity to cross‑examine witness of landlord.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss.l5(2)(ii), 19 & 20‑‑‑Ex parte order--‑Setting aside of‑:‑Provisions of Civil Procedure Code‑‑‑Application in rent cases‑‑‑Extent‑‑‑Tenant against whom ex parte ejectment order was passed, had contended that the order was passed without affording him opportunity of hearing of arguments and that before passing said order he ought. to have been given a chance to clarify controversy in his arguments ‑‑‑Validity‑‑‑Sindh Rented Premises Ordinance, 1979 though did not furnish any answer to deal with said situation, but Courts had always acted aptly to resolve controversy in like situation by referring to the provision of Code of Civil Procedure‑‑‑When the Ordinance did not provide to deal with an eventuality, in appropriate cases relevant provisions of Code of Civil Procedure could be resorted to in larger interest of justice and on the ground of equity.

Muhammad Saeed Daftri v. Mst. Razia Begum. 1996 CLC 1034 ref.

Hidayatullah Ghulam Ali with Syed Ahmed Farooqui for Appellant. Zahid Hussain for Respondent.

Date of hearing: 22nd November, 1999.

2000 C L C 595

[Karachi]

Before Rasheed Ahmed RazW, J

Mst. SHANTI‑‑‑Plaintiff

versus

KARACHI TRANSPORT CORPORATION and others‑‑‑Defendants

Suit No.318 of 1988; Civil Miscellaneous Applications Nos. 1353 of 1999 in Ex.30 of 1997, 1268 of 1999 in Ex.51 of 1996, 1357 of 1999 in Ex.51 of 1996, 1354 of 1999 in Ex.52 of 1996, 1269 of 1999 in Ex.53 of 1996, 1363 of 1999 in Ex. 53 of 1996, 1266 of 1999 in Ex. 4 of 1997, 1356 of 1999 in Ex.4 of 1999, 1360 of 1999 in Ex. 5 of 1999, 1267 of 1999 in Ex. 6 of 1999, 1362 of 1999 in Ex. 6 of 1999, 1264 of 1999 in Ex. 10 of 1999, 1363 of 1999 in Ex. 10 of 1999, 1265 of 1999 in Ex. 13 of 1999, 1355 of 1999 in Ex. 13 of 1997, 1569 of 1999 in Ex.62 of 1997, 1270 of 1999 in Ex.64 of 1998, 135.9 of 1999 in Ex.64 of 1998; Nazir Ref. dated 15‑9‑1999 and O.A.'s Refs., dated 27‑8‑1999, 18‑6‑1999, decided on 22nd January, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 82‑‑‑Decree against Government‑‑‑Scope‑‑‑One of the purpose of provisions of S.82, C.P.C. is to enable the Government to meet and face the demands of a decree‑holder and not to frustrate the same.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 73‑‑‑Principle of rateable distribution of proceeds of execution/sale among the decree‑holders‑‑‑Preference to Government liability over claim of secured creditors‑‑‑Scope‑‑‑Such liabilities of the Government arising subsequent to a charge on the properties cannot have preference over the claim of secured creditors.

Federation of Pakistan v. Pioneer Bank Ltd. PLD 1958 Dacca 535 and Industrial Development Bank Ltd. v. Messrs Maida Limited and 3 others 1989 CLC 143 ref.

(c) Income Tax Ordinance (XXXI of 1979)‑‑

‑‑‑‑S. 92‑‑‑Recovery of tax from persons holding money on behalf of an assessee‑‑‑Prerequisites‑‑‑Existence of assessee against whom income‑tax was due or payable and that the amount being retained by such person should belong to the assessee.

(d) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑S. 92‑‑‑Civil Procedure Code (V of 1908), S. 73‑‑‑Sindh Chief Court Rules (O.S.), R. 364‑‑‑Principle of rateable distribution of proceeds of execution/sale ‑‑‑Recovery of income‑tax of the judgment‑debtor from sale proceeds‑‑‑Preference to Government liabilities over claim of decree holders‑‑‑Property of the judgment‑debtor was publicly auctioned in execution proceedings to satisfy the decrees‑‑‑Income‑tax Department made a demand out of such proceeds for the recovery of income‑tax due on the judgment‑debtor‑‑‑Such demand was made without establishing that the claim of income‑tax was the result of duly conducted assessment proceedings‑‑­Validity‑‑‑Unless it was established that such claim by the defendant was well determined and settled, right to priority of the Government dues could not be given preference as against the decree‑holders‑‑‑High Court directed 'the Nazir of the Court to disburse the respective claims of the decree‑holders and remaining amount to be given to. the Income tax Department‑‑‑No preference was given to the Government dues over the decree‑holders in circumstances.

Saced Abu Mian v. Haji Abdul Ghani and another PLD 1974 Kar. 39; Messrs Anwar H. Pir Bhai & Co. PLD 1974 Kar. 42; Murli Tahilaram v. T. Asoomal & C«. \IR 1955 Cal. 423; Oudh Commercial Bank Ltd. v. Secretary of‑State AIR 19351ah. 319(2); Lala Muni Lal v. Dewan Chand and another AIR 1939 Lah. 488: Rex d‑. Wells (1812) 16 East 278; Quick's case 16 East 28'1; Henlay & Co 's case (1878) 9 Ch. D 469; New South Wales Taxation Commissioners v. Palmer (1907) AC 179; Secretary of State v. Bombay Landing and Shipping Co. 5 Dom. HCR (OC) 23; Ganpat Putaya v. Collector of Kanara 1 Bom. 7; Gulzari Lal v. Collector of Bareilly 1 All. 596; Union of India v. Mes,,rs Sofmsundaram Mills (P.) Ltd. and another AIR 1985 SC 407; Messrs Builders Supply Corporation v Union of India arid alters (1955;) 2‑8 ITR 979; Builders Supply Corporation v. Union of India and others AIR 1965 SC 1061 = (1965) 56 ITR SC 91 and Habib Bank Ltd. v. Rudolf Donhill and others (1999) 80 Tax 99 ref.

(e) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑Ss. 79 & 80‑‑‑Recovery of Government dues as arrears of land revenue‑‑‑Scope‑‑‑All the provisions of law which authorise any statutory authority to recover any amount as arrears of land revenue can be invoked only after determination of the amount of dues as fixed, ascertained and determined sum of money.

Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67; Abdul Latif v. Government of West Pakistan and others PLD 1962 SC 384; Muhammad Akbar Cheema v. The Province of West Pakistan and another 1984 SCMR 1047 and Raj Kumar and 3 others v. National Bank of Pakistan and another 1994 CLC 206 ref.

Hussain Shah Rashdi and Nasir Maqsood for the (Decree‑Holder). Nasrullah Awan for the Income‑tax Department.

Munirur Rehman, Addl. A‑G. alongwith Gul Muhammad Soomro, Legal Advisor, K.T.C.

2000 C L C 606

[Karachi]

Before Rana Bhagwan Das and Sabihuddin Ahmed, JJ

ARDESHIR COWASJEE and others‑‑‑Petitioners

versus

K.B.C.A. and others‑‑Respondents

Constitution Petition No.D‑103 of 1999, decided on 10th April, 1999.

(a) Bias‑‑‑

‑‑‑‑Concept‑‑‑Bias is a device with an ulterior motive to prevent a Judge from sitting on a Bench‑‑‑Where a Judge might not normally like to hear the case on account of an apprehension of bias, such Judge may continue to do so, where any of the parties was resorting to such device with an ulterior motive to prevent that Judge from sitting on the Bench for example, by engaging a counsel who was barred from appearing before him.

Federation of Pakistan v. Muhammad Akram Shaikh PLp 1989 SC 689 rel.

(b) Administration of justice‑‑‑

‑‑‑‑ Right to be heard by a particular Bench of High Court‑‑‑Tentative observations of Judges with respect to question of law involved in the case‑‑­Nature‑‑‑Effect‑‑‑Judges do make such observations while hearing cases but the same could never be treated as observations expressing their final opinion‑‑‑No principle of law available upon which a litigant could claim a right to be heard by a particular Bench of High Court or a right to seek retention or transfer of his cases on the basis of such tentative observations.

(c) Code of Conduct framed by the Supreme Judicial. Council‑

‑‑‑‑ Art. IV(i)‑‑‑Hearing of case by Judge, involving interest of his near relatives or close friends‑‑‑Effect‑‑‑Code of Conduct framed by the Supreme Judicial Council requires that a Judge must decline to act in a case involving the interest of those persons whom that Judge regards and treats as near relatives or close‑friends.

Federation of Pakistan v. Muhammad Akram Shaikh PLD 1989 SC 689 rel.

(d) Administration of justice‑

‑‑‑‑ Hearing of case by a Judge where one of the parties had remained his client at the time of his law practice‑‑‑Propriety‑‑‑Rule of law, or even propriety requires a Judge to disqualify himself from hearing such a case.

Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 2A, 3, 4, 37 & 199‑‑‑Civil Procedure Code (V of 1908), S.151‑‑­Constitutional petition‑‑‑Allegation of partiality of the Bench of High Court‑‑‑Petitioner raised objection to the hearing of. the case by a High Court Bench on the basis of certain articles published in newspapers by one of the parties in the case commenting and complimenting one of the Judges constituting the Bench‑‑‑Validity of effect‑‑‑Judges who had taken an oath to act strictly according to law and the Constitution were not so fragile as to be swayed by newspaper comments, such comments when made by a litigant himself, could cause apprehension in the maid of adversary parties‑‑‑Without going into the questions as to whether such comments constituted contempt or whether the petitioner as a journalist had a right to comment on issues of public concern, High Court strongly disapproved the same‑‑‑High Court observed that even when such petitioner .vas to approach the Court in the interest of public‑at‑large, such petitioner should have exercised restraint and refrained from creating impressions about proclivities of individual Judge‑‑­Must be ensured that faith of people in institutions of dispensation of justice was of the utmost importance, irrespective of the individuals occupying such offices, was not impaired‑‑‑Any hope or apprehension as to likelihood of a particular verdict emanating from a particular Bench of High Court must be dispelled and it must be known that justice according to law could be delivered by any Bench of High Court‑‑‑High Court, in the larger interest of justice maintaining public confidence in the system of administration of justice, decided that Bench would not hear the case.

Multilines' case 1995 SCMR 362; Benazeer Bhutto v. Federation of Pakistan PLD 1998 SC 416: M.H. Khundkar v. State PLD 1966 SC 140; President of Pakistan v. Justice Shoukat Ali PLD 1971 SC 585; Islamic Republic of Pakista.t v. Abdul Wali Khan PLD 1976 SC 57 and Asad Ali v. Federation of Pakistan PLI) 1998 SC 161 ref.

Naimur RcLiman for Petitioner.

Muhammad Ali Sayeed, Advocate.

Muhammad Salcem, Addl. A.‑G.

Farough Nasim, Advocate.

Muhammad lqbal Memon, Advocate.

Mubarak H. Siddiqui, Advocate.

Ziaul Haq Makhdoom, Advocate.

2000 C L C 633

[Karachi]

Before Rasheed Ahmed Razvi and Muhammad Ashraf Leghari, JJ

QAMARUDDIN SOOMRO‑‑‑Petitioner

versus

ADMINISTRATOR, MUNICIPAL COMMITTEE, RATODERO and 4 others‑‑‑Respondents

Constitutional Petition No.D‑186 of 1999, decided on 12th October, 1999

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 9, 14 & 199‑‑‑Constitutional petition ‑‑‑Maintainablity‑‑‑Non­payment of pension and gratuity to pensioners by Government Department‑‑­Reason for failure to pay such dues was non‑availability of funds‑‑­Validity‑‑‑Government functionaries were required to act according to law by promptly paying the dues‑of the pensioners‑‑‑Performance of the statutory obligation of State functionaries could be sought through Constitutional petition‑‑‑Ground of inability for not paying dues of a‑pensioner, who had put 37 years of his valuable life in service with the Government could not be sustained‑‑‑Such act of the Government functionaries being violative of Arts.9 & 14 of the Constitution, Constitutional petition was maintainable.

Mahmood Ali Butt v. Inspector‑General of Police, Lahore and 10 others PLD 1997 SC 823 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 9 & 14‑‑‑Expression "right to life"‑‑‑Meaning‑‑‑Illustrated.

Consumers Education and Research Centre and others v. Union of India and others AIR 1995 SC 922 and Ms. Shahla Zia and others v. WAPDA PLD 1994 SC 693 ref.

Asif Ali Abdul Razak Soomro for Petitioner. Gul Hassan Solangi for Respondents Nos. l to 3. G.A. Shahani, Addl. A.‑G. for Respondents Nos.4 and 5.

2000 C L C 650

[Karachi]

Before Rasheed Ahmed Razvi, J

DIVISIONAL FOREST OFFICER

and others‑‑‑Applicants

versus

Haji SHER MUHAMMAD ‑‑‑Respondent

Civil Revision No. 119 of 1994, decided on 14th October, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑‑Revision‑‑‑Laches‑‑‑Applicability‑‑‑Prior to the insertion of a period of 90 days for filing of a revision petition, under S.115, C.P.C. any such petition filed beyond the period of 90 days was held to be laches.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Condonation of delay‑‑‑Sufficient cause"‑ 'Petitioner a Government Department‑‑‑Delayed approval from Solicitor was not sufficient cause for condonation of delay Lahore High Court, Lahore v. Nazar Muhammad Fatiana and otters 1998 SCMR 2376; Province of East Pakistan v. Abdul Hamid Darji and others 1970 SCMR 558; Messrs Pakistan Pipe and Construction Co. Ltd. v. City Mukhtiarkar and another PLD 1984 Kar. 28 and The West Pakistan Agriculture Development Corporation and 2 others v. Soomar and 2 others PLD 1984 Kar. 190 ref.

(c) Civil Procedure Code (V of 1908)‑‑

‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Condonation of delay... Revision petition was filed with a delay of 13 days by a Government ]Department‑‑‑Reason for the delay was given as late approval by Solicitor‑‑­Justification‑‑‑Contention raised by the petitioner was that the respondent did not file a suit for declaration‑‑‑‑Validity‑‑‑Such reason was no ground for condonation of delay and it was a clear case of negligence on the part of Government Officials‑‑‑Where suit was filed for declaration, the same would be competent‑‑‑Claiming of the relief of declaration was not fatal‑‑‑Revision was dismissed as time‑barred in circumstances.

Government of N.‑W.F.F. through Chief Secretary and 3 others v. Abdul Malik 1994 SCMR 833; PLD 1992 Central Statutes 226; Shara! Faridi and 3 others v. Federation of Islamic Republic of Pakistan and another PLD 1989 Kar. 404; Mst. Amina Begum and others v. Mehar Ghulam Dastigir PLD 1978 SC 220: Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Ltd. PLD 1984 SC 38; Saiyyid Abdul A'la Maudoodi and others v. Government of West Pakistan and another PLD 1964 SC 673 and Sadullah Jan and 2 others v. Additional Secretary, Home and Tribunal Affairs, N.‑W. F. P. Peshawar and 4 others PLD 1991 SC 811 ref.

Abdul Hameed Khan for Petitioners. Nemo for Respondent.

Date of hearing: 14th October, 1999.

2000 C L C 657

[Karachi]

Before Rana Bhagwan Das and Mushir Alam, JJ

MUHAMMAD YAQ0013and others‑‑‑Petitioners

versus

P.O. SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑1311 of 1995, decided on 29th October, 1999. Pre‑emption‑‑‑‑‑‑‑Right of pre‑emption ‑‑‑.Pre‑emptor acquired pre‑emptive right before the target date of 31‑8‑1986 set by Supreme Court in Said Kamal's case reported as PLD 1986 SC 360‑‑‑Such right was not upset before said target date‑‑­Effect ‑‑‑Pre‑emptor was entitled to pre‑empt land subject to payment of price determined by the Deputy Commissioner in the initial order.

N.‑W.F.P. Government v. Said Kamal Shah PLD 1986 SC 360; Wafaqi Hakoomat‑e‑Pakistan v. Awamunnas PLD 1991 xSC 731 and Sardar Ali v. Muhammad Ali PLD 1988 SC 287 ref.

Ghulam Shabir, D. Memon for Petitioners.

Zawar Hussain Jafferi, Addl. A.‑G. and S. Ali Aslam Jafferi for Respondents.

Date of hearing: 7th October, 1999.

2000 C L C 680

[Karachi]

Before Rana Bhagwan Das, J

MUHAMMAD JAWED‑‑‑Appellant

versus

ANWAR ALI ‑‑‑Respondent

Civil Revision No.39 and Civil Miscellaneous Application No.222 of 1999, decided on 15th October, 1999.

(a) Civil Procedure Code (V of 1908)‑

‑‑‑‑0. IX, R.9‑‑‑Restoration of suit dismissed for non‑prosecution‑‑‑Failure to post the date of hearing in diary by counsel of defendant‑‑‑Such failure was not intentional but due to an oversight‑‑‑Trial Court refused to restore the case whereas the Lower Appellate Court restored the same ‑‑‑Validity‑‑­Application for restoration was supported by affidavit of the counsel owning to such oversight and failure on the part of the counsel to inform the defendant/respondent about next date of hearing‑‑‑No strong circumstances existed on the record tending to show that the defendant/respondent or his counsel acted with negligence muchless gross neglect in prosecution of the suit‑‑‑Restoration of case was not interfered by the High Court in circumstances.

Muhammad Afzal v. Small Business Finance Corporation 1997 CLC 1080; Begum v. Begum Kaniz Fatima Hayat 1989 SCMR 883; Abdul Qavi Siddiqui v. District Judge 1997 MLD 1261; Province of East Pakistan v. Sirajul Haq Patwari (1967) 1 PSCR 35 and Manager, Jammu and Kashmir Estate Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 ref.

Ahmed Hassan v. Aziz Ahmed 1979 CLC 629 distinguished.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. IX, R.9‑‑‑Expression "sufficient cause for non‑appearance"‑‑­Expression "sufficient cause for non‑appearance"‑‑‑Scope‑‑‑Failure to post the date of hearing in diary by counsel‑‑‑Effect‑‑‑Where such failure was not intentional but due to oversight, the same would amount to "sufficient cause" within the meaning of the term.

(c) Practice and procedure‑

‑‑‑‑ Conflict of judgments‑‑‑View taken by the Appellate Forum must be preferred unless it was shown that the view taken was contrary to the settled proposition of law, arbitrary, fanciful or perverse on‑ the face of it. [p. 682] C

G.M. Channa for Petitioner.

2000 C L C 709

[Karachi]

Before Wahid Bux Brohi, J

Mst. HUSNA BAND‑‑‑Applicant

versus

FAIZ MUHAMMAD MAGSI and another‑‑‑Respondents

Revision Application No.51 of 1992 (Hyderabad Circuit), decided on 4th November, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of fact by both the Courts below ‑‑‑Revisional jurisdiction, exercise of‑‑‑Scope‑‑‑While exercising such jurisdiction, it had to be seen whether the Courts below had misread the evidence or ignored any material piece of evidence on record or the findings were perverse‑‑‑Merely because a conclusion different from that arrived at by the two Courts below was possible, the same could not be made a ground justifying interference with a concurrent finding on a point of fact‑‑‑Findings of a Lower Appellate Court need not be disturbed in exercise of revisional jurisdiction unless it was established that such findings were based on no evidence and were result of conjectures in consequence of fallacious appraisal of evidence, misreading, non‑reading or perverse appreciation of evidence.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Gulzar Khan v. Razia Begum and 2 others 1982 SCMR 843; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; Mst. Khurshid Bibi v. Muhammad Rafique 1987 SCMR 1545; Muhammad Zaheer Khan and another v. Muhammad Zamir Khan 1987 SCMR 1144; Sadiq Muhammad v. Madad Ali and 2 others 1990 SCMR 694; Abdul Hakeem v. Habibullah 1997 SCMR 1139 and Naziran Begum v. Khursheed Begum 1999 SCMR 1171 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, R.31 & 5.115‑‑‑Setting aside of judgment‑‑‑Failure to frame points for determination‑‑‑Effect‑‑‑Requirements of O.XLI, R.31, C.P.C. were not fulfilled where the evidence on record had not been fully weighed and considered‑‑‑Such judgment was liable to be set aside in revision.

Nasir Abbas v. Manzoor Hyder PLD 1989 SC 568 and 1982 SCMR 542 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revision‑‑‑Technical flaws in judgment under revision‑‑­Effect‑‑‑While exercising supervisory jurisdiction under S.115, C.P.C. the technicalities may be avoided‑‑‑Merely because of technical flaws in the judgment, the finding based on assessment of the substantive evidence on record, was not to be disturbed.

(d) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement to sell‑‑‑Mentioning of a wrong survey number in sale‑deed‑‑‑Effect‑‑‑Where both the parties were unanimous that the suit land which was given in possession of the vendees was in fact sold to them and the parties did not act under any mistake with regard to identity of land sold, mere mentioning of wrong survey number was of no consequence.

Mst. Shah Begum and 7 others v. Raj Muhammad and 2 others 1985

CLC 1117 ref.

(e) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑(. 12‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑‑Specific performance of agreement to sell‑‑‑Concurrent findings of both the Courts below‑‑­Petitioner/plaintiff failed to establish that the agreement to sell was executed by the respondent/defendant in her favour‑‑‑Validity‑‑‑Judgments and decrees of both the Courts below were neither suffering from misreading of evidence nor such findings were perverse‑‑‑Case of the petitioner/plaintiff was full of infirmities and she had failed to establish her case, petitioner/plaintiff was not entitled to relief of specific performance and as such did not warrant interference‑‑‑Petitioner/plaintiff failed to establish that both the Courts below had exercised jurisdiction illegally or with material irregularity‑‑­Revision being without merit was dismissed in circumstances.

Jhamat Jethanand for Applicant.

Raja Khan for Respondent.

Date of hearing: 7th May, 1999.

2000 C L C 737

[Karachi], Before Sabihuddin Ahmed and Ghulam Rabbani, JJ

Miss AFSHAN ANWAR ‑‑‑ Appellant

versus

GOVERNMENT OF SIND14 and others‑‑‑Respondents

Constitutional Petition No.677‑D of 1999, decided on 15th November, 1999. , (a) Sindh Medical Colleges Act (V of 1987)‑‑‑

‑‑‑‑S. 3‑Admission in Medical Colleges‑‑‑Rules regarding such admissions‑‑‑Powers of Government to make such Rules‑‑‑Scope‑‑‑Provision of S:3, Sindh Medical Colleges Act, 1987, confers powers upon the Government to make Rules‑ regulating admissions, in medical colleges maintained by the State‑‑‑Such rule‑making power is conferred to provide for admissions on merit‑‑‑Eligibility, criterion for applying and the method of determination of merit has been laid down giving prime importance to performance in the entry test.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 25 & 37(c)‑‑‑Admissions in professional colleges maintained by the State‑‑‑Equal protection of law‑‑‑Promotion of social justice and eradication of social evils‑‑‑Applicability‑‑‑Scheme of such admissions needs to be considered from stand‑point of the Constitutional validity‑‑‑Article 25 of the Constitution guarantees that all citizens are equal under the law and entitled to equal protection of laws‑‑‑In the context of admissions to professional colleges, Art.25 of the Constitution is to be read alongwith Art.37(c) of the Constitution.

Abdul Qadir Sheikh v. N.E.D. University of Engineering and Technology 1992 CLC 2222 ref.

(c) Sindh Medical Colleges Act (V of 1987)‑‑‑

‑‑‑‑S. 3‑‑‑Prospectus of Liaquat Medical College, Jamshoro (1998‑99), Rr.10, 17 & 18‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Admission in medical college‑‑‑Candidates appearing in entry test on the basis of B.Sc. Examination‑‑‑Petitioner/candidate applied for admission in the medical colleges of Sindh for the 1998‑99 session and was eligible to do so on the basis of her passing the B: Sc. Examination‑‑­Petitioner/candidate passed the entry test and was placed at number 38 of the merit list‑‑‑Admission was denied to the petitioner/candidate on the ground that under the provision of R.10, Rules of Admission, preference was to be given to candidates passing their Intermediate Examination in Grade "B" or above and only upon exhaustion of that list of candidates having passed the Intermediate Examination the petitioner/candidate could be considered for admission‑‑‑Validity‑‑‑Once the rules had enabled those passing B.Sc. Examination eligible to apply, a stipulation that despite their better performance according to prescribed standards of merit evaluation, such candidates must be treated as an inferior class basis, was probably irrational and the, same bore no nexus whatsoever with the object of the law designed to regulate admissions on the basis of merit‑‑‑Expression "preference" in R.10 of the Rules of Admissions meant that where the marks of two candidates worked out under R.18 of the Rules of admission were equal, the one having applied on the basis of Intermediate Examination would be given preference and R. 17(v) would apply thereafter‑‑‑Authorities were directed to accord admission to the petitioner/candidate on the basis of her position in the merit list accordingly.

Hina Jawaid v. Government of N.W.F.P. 1998 SCMR 1469; Illahi Cotton Mills v. Federation of Pakistan PLD 1997 SC 582 and Sher Singh v. Union of India AIR 1984 SC 200 ref.

Ghulam Qadir Jatoi for Petitioner.

Sarwar Khan, Addl. A.‑G. for Respondents.

Date of hearing: 5th November, 1999.

2000 C L C 764

[Karachi]

Before Wahid Bux Brohi, J

GHULAM MUHAMMAD KHAN‑‑‑Appellant

versus

MUHAMMAD KHALID‑‑‑Respondent

First Rent Appeal No. 190 of 1999, decided on 13th September, 1999.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 15 & 21‑‑‑Ejectment of tenant‑‑‑Bona fide personal need of landlord‑‑‑Landlord filed affidavit of his. son to prove his plea of personal bona fide use and such statement was a false statement on oath‑‑‑Dishonesty of the landlord and unreasonableness of purpose were manifestly visualized from the facts‑‑‑Rent Controller dismissed the ejectment petition filed by landlord‑‑‑Validity‑‑‑Landlord was required to establish his case of personal bona fide use by proving that the premises were required honestly and in good faith without an oblique motive and that the purpose for ejectment of tenant was reasonable a&3 genuine‑‑‑When the landlord failed to do so, Rent Controller was justified in declining the relief of ejectment sought by the landlord who was not entitled to eviction order in circumstances.

Wasim Ahmed v. Shaikh Karim , Riaz 1996 SCMR 1055; Muhammad Atique v. Hanif Khan 1996 SCMR 1260; Sultan Press Ltd. v. Muhammad Hassan PLD 1985 Kar. 624; Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051; Mst. Farukh Nisa v. Safdar Ahmed and 6 others PLD 1985 Kar. 639; Binyameen and 3 others v. Ch. Hakim 1996 SCMR 336 and S.M. Nooruddin v. Sega Printers 1998 SCMR 2119 ref.

Khalid Doupota for Appellant.

Abdul Majeed Khan for Respondent.

Date of hearing: 13th September, 1999.

2000 C L C 774

[Karachi]

Before S. Ahmed Sanwana. J

NATIONAL BANK OF PAKISTAN‑‑‑Plaintiff

versus

Messrs TAUFIQ IMPEX INC. through Proprietor

Muhammad Taufiq and another‑‑‑Defendants

Suit No. 1282 of 1998 and Civil Miscellaneous Applications Nos.76 and 77 of 1999, decided on 5th October. 1999.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑S. 2(d)‑‑‑"Customer"‑‑‑Meaning‑‑‑Real beneficiary of the finance falls in the definition of a "customer".

(b) State Bank of Pakistan Prudential Regulations‑‑‑

‑‑‑‑ Reglns. III & XVIII‑‑‑Bank Officer, responsibility, of‑‑‑Failure to take reasonable degree of care in extending loan‑‑‑Effect‑‑‑Where an Officer of Bank acts negligently or omits to take such care as required by the State Bank of Pakistan Prudential Regulations and consequently Bank suffers loss, the Bank will be justified in suing such an Officer for recovery of the loss suffered by the. Bank.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 408‑‑‑Criminal breach of trust‑‑‑Failure to take reasonable degree of care in extending loan by Bank employee‑‑‑Where an Officer of Bank acted negligently or did not exercise degree of care and caution expected of a prudent banker, such Officer was also guilty of criminal breach of trust.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 9 & 10‑‑‑Civil Procedure Code (V of 1908), O. I, R.10 & S.151‑‑‑Suit for recovery of Bank loan‑‑‑Application for leave to defend the suit‑‑­Proceedings of recovery against Officer of Bank‑‑‑Validity‑‑‑Defendant/ account‑holder was just a front man while the defendant/Bank Officer was the real beneficiary of the amount‑‑‑Application under 0.1, R.10, C.P.C. for striking out the name of the defendant/Bank Officer from the plaint was dismissed, as the defendant was a necessary party and was rightly impleaded in the proceedings‑‑‑Defendant/Bank Officer neither produced any evidence nor gave any explanation to show that the defence taken by him was bona fide‑‑‑Documents placed on record showed that defendant/Bank Officer connived with the defendant/account‑bnlder and a huge amount was transferred to the account of the former for his personal benefit‑‑‑No serious bona fide dispute was raised‑‑‑Leave to defend the suit was refused and suit was decreed accordingly.

Zubair Qureshi for Plaintiff.

Muhammad Habib Khan for Defendants Nos. l and 2.

2000 C L C 787

[Karachi]

Before S. Ahmed Sanwana, J

HABIB BANK LIMITED‑‑‑Plaintiff

versus

SHAFIQ TEXTILE MILLS LTD. and others‑‑‑Defendants

Suit No. 130 and Civil Miscellaneous Applications Nos.6705 and 6706 of 1999, decided on 12th November, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. I, R10(2)‑‑‑Striking out name of defendant‑‑‑Execution of a document by Director/Officer of a company not in personal capacity‑‑‑Director was arrayed as defendant in a suit for recovery of Bank loan‑‑‑Validity‑‑‑Such Director could not be made party to the suit as no relief could be granted against such defendant Name of such defendant/Director was deleted from the plaint in circumstances.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 10‑‑‑Suit for recovers, of Bank loan‑‑‑Application for leave to defend the suit‑‑‑Defendant/applicant asserted 'that there were no signatures of defendant/applicant on any, of the guarantees submitted in the Bank for the grant of loan‑‑‑Effect‑‑‑Counsel for the plaintiff/Bank conceded that there were no signatures of defendant/applicant on the guarantees‑‑‑Contentions raised by the plaintiff/Bank were mala fide and vexatious and the same were rejected‑‑‑Leave to defend the suit was allowed in circumstance.

1993 CLC 1222 and 1983 CLC 1042 ref.

Abdul Star Pingar for Plaintiff.

Anwar Mansoor Khan for Defendants Nos. l to 5 and 7 to 10.

2000 C L C 800

Before Saiyed Saeed Ashhad, .J

REVEREND ERIC SARFRAZ through his General Attorney Solomen‑‑‑Applicant

versus

THE REV. SMART K. DASS

and 9 others‑‑‑Respondents

Civil Revision Application No.36 of 1998, decided on 8th May, 1998.

Specific Relief Act (I of 1877)‑‑‑

S. 42‑‑‑Civil Procedure Code V of 1908), O.XXXIX, Rr. & 2‑‑‑Interim injunction, . grant of Concurrent. findings of both the Courts' below‑‑­Election to the office of Bishop was assailed by the plaintiff in a declaratory suit‑‑‑Both the Courts below had refused to grant interim injunction against the defendant‑‑‑Validity‑‑‑Apparently the election could not be said to be proper, valid and in accordance with the provisions of the constitution of the Church of Pakistan‑‑‑Plaintiff had though succeeded in establishing a prima facie or in arguable case as against the validity and legality of defendant being elected as Bishop and his entitlement to hold such office but no legal .entitlement of right of the plaintiff was violated so as no cause him irreparable loss. and requirement of balance of convenience was also not in favour of the plaintiff as the entire work of the office was being conducted by the elected Bishop and same would become stand‑still‑‑‑Plaintiff having failed to make out a case for grant of temporary injunction, both the Courts below ‑did not commit any irregularity or illegality in refusing to grant the temporary injunction in favour of plaintiff‑‑‑Orders of both the Courts below did not require to be interfered with by High Court in revision.

Marghub Siddiqui v. Hamid Ahmed Khan and 2 others 1974 SCMR 519; Karachi Bus Owners Association and 3 others v. Karachi Yellow Mini Coach Owners Association and 5 others 1994 CLC 606; Mrs. Shahzadi Baber v. Hina Housing Project (Pvt.) Ltd. and others 1994 CLC 1601 and Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508 rel.

Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and Another PLD 1975 SC 678; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Haji Sher Muhammad v. WAPDA PLD 1988 Lah. 511; Balagamwala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. and 2 others PLD 1990 Kar. 1; Agha Saifuddin Khan v. Pak Suzuki Motors Company Limited and another 1997 CLC 302 and Mst. Salmi Jawaid and 3 others v. S.M. Arshad and 7 others PLD 1983 Kar. 303 ref.

Anwar Zaheer Jamali for Applicant. P.M. Amer for Respondents.

Date of hearing: 17th April, 1998.

2000 C L C 819

[Karachi]

Before Mushtaq Ahmed Memon, J

UNITED BANK LTD. ‑‑‑Plaintiff

versus

GOLDEN TEXTILE MILLS LTD. and 7 others‑‑‑Defendants

Old Suit No. 121 of 1996 (New Suit No.476 of 1998), decided on 26th August, 1999.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 62‑‑‑Novation of contract‑‑‑Effect‑‑‑Performance of original contract when can be dispensed with‑‑‑Where only one of the parties to the contract alleges novation or alteration in the original contract but fails to establish the same, the parties to the contract are not absolved of the liability and obligation under the original contract‑‑‑Substitution or novation of the contract takes place only by mutual consent of the parties.

The Central Bank of India Ltd. v. Muhammad Islam Khan PLD 1962 SC 251; Messrs Jugotekstil Impex, 61001, Lubijana Yugosalavia v. Messrs Shams Textile Mills Ltd. 1990 MLD 857 and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon 1994 SCMR 2189 rel.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 128 & 133‑‑‑Liability of surety‑‑‑Variance in terms of contract‑‑­Effect‑‑‑Provisions contained in S.133, Contract Act, 1872, gives discharge to the surety from any added liability subsequent to or caused as a result of change or alteration in the original terms settled between the parties.

(c) Banking Tribunals Ordinance (LVIII of 1984)‑‑‑

‑‑‑‑S. 5‑‑‑Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S.15‑‑‑Civil Procedure Code (V of 1908), O.XXXIV, Rr.l & 2‑‑‑Suit for recovery‑‑‑Credit facility on mark‑up basis‑‑­Award of mark‑up on decretal amount‑‑‑Plaintiff/Bank paid suit amount in relation to 7 bills of exchange till filing of the suit‑‑‑Plaintiff/Bank could not claim any mark‑up on the amount of bills which had rightly been converted into Pakistani currency on the respective dates of maturity‑‑‑Subsequent payments made by the plaintiff/Bank in relation to the remaining bills of exchange could not be taken into consideration in the suit, since the amount of such bills had not become due on the date of filing of the proceedings‑‑­Plaintiff/Bank might have filed separate proceedings for recovery of the amount which became due during the pendency of the suit‑‑‑Suit was decreed accordingly, with mark‑up and excise duty.

United Bank Limited v. Central Cotton Mills Ltd. 1999 CLC 1374 and Muslim Commercial Bank Ltd. v. Messrs Over Impex 1994 CLC 1 ref.

Ijaz Ahmed for Plaintiff.

Kamal Azfar, Abdul Ghafoor Mangi and M. Saleem Thepdawala for Defendants.

Nemo for Defendant No.8.

2000 C L C 831

[Karachi]

Before Muhammad Ashraf Leghari, J

ASSISTANT COMMISSIONER and others‑‑‑Appellants

versus

INAYAT ALI and others‑‑‑Respondents

First Civil Appeal No.2 of 1999, decided on 28th October,.1999.

(a) Administration of justice‑‑‑

‑‑‑‑ Government cannot claim to be treated in any manner differently from an ordinary litigant, nor it can be granted the facilities other than the ordinary litigants.

(b) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S. 54‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Condonation of delay in filing appeal by Government‑‑‑Delay was caused in obtaining sanction from the Government for filing of appeal‑‑­Validity‑‑‑Government functionaries were grossly careless, negligent and deliberately delayed the filing of appeal even after obtaining the copy of judgment under appeal‑‑‑Memorandum of appeal was neither accompanied by application under S.5, Limitation Act, 1908 nor affidavit in support thereof stating that the delay was due to the said reason was attached‑‑‑Delay in filing appeal beyond period of limitation was not condoned in circumstances.

Project Director, Darya Khan Bridge Project, D.I. Khan v. The Collector/Collector Land Acquisition, D.I. Khan and 205 others PLD 1998 Pesh. 21 and Punjab Province v. Muhammad Akhtar & Co. 1995 CLC 351 ref.

Abdul Hameed Khan for Appellants.

2000 C L C 839

[Karachi]

Before Sabihuddin Ahmed, J

Syed FAZIL ALI SHAH‑‑‑Plaintiff

versus

Syed ZAHEER HUSSAIN ‑‑‑Defendant

Suit No.813 of 1986, decided on 12th November, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VII, R.26 & OXXII, R.3‑‑‑‑Succession Act (XXXIX of 1925), S.278‑‑‑Letters of administration, grant of‑‑‑Non‑filing of application under O.XXII, R.3 of C.P.C. after demise of the plaintiff‑‑‑Effect‑‑‑Counsel informed the Trial Court about the death of the plaintiff‑‑‑Legal heirs of the deceased plaintiff were allowed to contest the proceedings without any application under O.XXII, R.3 C.P.C.‑‑‑Trial Court under the provision of O.VII, R.26, C.P.C. issued notices and pursuant thereto some legal representatives appeared to pursue the proceedings‑‑‑Evidence of the plaintiff had already been concluded before his death and only the evidence of the defendants was to be recorded and arguments were to be addressed‑‑‑No substantial interest of the defendants, in circumstances, was likely to be prejudiced where the legal representatives of the plaintiff were allowed to contest the proceedings.

Bibi Khndeja v. Pir Sarwaruddin 1999 MLD 490; Saifuddin v. Zainuddin 1995 CLC 1348; Ghulam Rasool v. Muhammad Hussain 1999 SCMR 2004; Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382; Bohra Kanahiyalal v. Gendo AIR 1928 All. 51; Fakir Alam and others v. Ajab Khan and others 1986 CLC 1320; P. Rama Naidu and others v. Rangayya Nido and others AIR 1933 Mad. 114 and Muhammad Siddiq v. Muhammad Sakhi PLD 1989 SC 755 ref.

Sadaruddin for Plaintiff. Muhammad Usman for Defendants. B.M. Bangish: Amicus curiae.

2000 C L C 866

[Karachi]

Before Zahid Kurban Alavi, J

N.V. NUTRICIA‑‑‑Plaintiff

versus, Messrs NUTRICIA FOODS INTERNATIONAL

(PRIVATE) LIMITED through Chief Executive/

Director/Secretary and another‑‑‑Defendants

Suit No.1488 and Civil Miscellaneous Applications Nos.7686 and 8178 of 1997, decided on 30th November, 1998.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑‑0. VII, R. 11 & O. XXIX, Rr.l, 2‑‑‑Application for rejection of plaint‑‑‑Subscription and verification of pleadings‑‑‑Objections raised on the signing and verification of pleadings‑‑‑Suit filed by a corporation registered abroad‑‑‑Conflict of laws‑‑‑Contention by plaintiff was that suit was properly instituted as the person who had signed and verified the plaint was an authorised person according to law of the country where such corporation was registered and no resolution of the Board of Directors was necessary‑‑‑ Validity‑‑‑Issue of the authority of the person could only be proved or disproved after the relevant law was produced before the Court‑‑‑Defendant would be within his rights to raise issue of the competency at the time of final arguments and burden would be upon the plaintiff to prove the same‑‑­Application was disposed of accordingly.

PLD 1971 SC 550; PLD 1971 SC 551; 1980 CLC 1932; NLR 1953 UC 184; PLD 1991 Lah. 381; 1994 CLC 2413; Halsbury's Law of England, 4th Edn., Vol. 8, para. 703; Corpus Juris Secundum, Vo1.19; Dicey and Morris on the Conflict of Law; Law and Regulation of International Finance States, Chap. IV, Corporate Capacity, p.27; Carl Zeiss of Heidenhim, Federal Republic of Germany v. Carl Zeiss Stiftung, Jena East Germany PLD 1968 Kar. 276; Modern Cotton Ginning and Pressing Factory (Pvt.) Ltd. of'Sarhari, District Sanghar (Sindh) v. Eastern Federal Union Insurance Company Ltd. 1996 CLC 1064 and 1996 CLC 1067 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Each party should be allowed to agitate his/her own point and the matter should be decided on merits.

Hassan Irfan for Plaintiff. Munawar Ghani alongwith Chaman Lal for Defendants.

2000 C L C 872

[Karachi]

Before Rana Bhagwan Das

and Sabihuddin Ahmed, JJ

LEVER BROTHERS PAKISTAN LIMITED‑‑‑Appellant

versus

Ms. ATIQA ODHO and another‑‑‑Respondents

High Court Appeals Nos. 151 and 155 of 1996, decided on 4th May, 1999.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Trade Marks Act (V of 1940), S.24‑‑‑Civil Procedure Code (V of 1908), OXXXIX, Rr.1 & 2‑‑‑‑Interim injunction, grant of‑‑‑Specific performance of contract‑‑‑Dispute between the parties was in relation to an interpretation of contract wherein the plaintiff asserted that after the termination of the contract the defendants did not have any right to use the publicity material containing the photographs of the plaintiff‑‑‑Conversely contention raised by defendants was that such material being the permanent property of the defendant could be used after the termination of that contract‑‑‑High Court, in its original jurisdiction, was of the view that while the defendant might be entitled to retain such publicity material but they were not entitled to use the same for advertising purposes after termination of the agreement‑‑‑Validity‑‑‑Defendants had been assigned the right to apply for registration of its trade mark and the material containing pictures of the plaintiff under S.24 of Trade Marks Act, 1940‑‑‑Retention of the property without its use was of no significance, the same would not carry any meaning and was without any use and utility‑‑‑View entertained by the High Court, thus, was not subscribed in the High Court appeal as the same suffered from misrepresentation of terms of the agreement between the parties‑‑‑Interim injunction granted by the Court was recalled in circumstances.

(b) Trade Marks Act (V of 1940)‑‑‑

‑‑‑‑Ss. 8 & 24‑‑‑Trade mark, validity of‑‑‑Scope‑‑‑After expiration of seven years from the original registration under S.24 of Trade Marks Act, 1940 trade mark is taken to be valid in all respects unless the same is obtained by fraud or offended against the provisions of S.8 of Trade Marks Act, 1940.

Munawar Ghani for Appellant (in H. C. A. No. 151 of 1996). Arshad Tayyebaly for Respondent No. l (in both the Appeals). Ghulam Abbas Pishori for Respondent No.2. Ghulam Abbas Peshori for Appellant (in H.C.A. No. 155 of 1996). Munawar Ghani for Respondent No. l (in H. C. A. No. 155 of 1996).

Date of hearing: 21st April, 1999.

2000 C L C 888

[Karachi]

Before Nazim Hussain Siddiqui, C.J.

and Ghulam Rabbani, J

MOHAN MAL alias MOHAN ‑‑‑ Petitioner

versus

GOVERNMENT OF SINDH and others‑‑‑Respondents, Constitutional Petition No‑316 and Miscellaneous Application No.879 of 1999, decided on 11th November, 1999.

(a) Sindh Excise Manual‑‑‑ .

‑‑‑‑Vol. I, para. 282‑A(19)‑‑‑Issuance of licence for liquor shop ‑‑‑Pre­condition‑‑‑Place of public worship existing‑‑‑Restriction is imposed on opening a liquor shop where a place of public worship is within 100 yards of such shop.

(b) Sindh Excise Manual ‑‑‑

‑‑‑‑Vol. I, para. 282‑A(19)‑‑‑Prohibition (Enforcement of I‑1~add) Order (4 of 1979), Art. 19‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Cancellation of licence of liquor shop‑‑‑Such licence was cancelled by Authority on the ground that there was a mosque within the radius of 230 feet of the shop‑‑‑Validity‑‑‑Licence was issued in the year 1996 which was renewed in subsequent years 1997 and 1998 making the same valid up to 30‑6‑1999‑‑‑Worship place was built after, the wine shop was allowed to be opened and even much after the renewal of licence in year 1997‑‑‑Authority did not exercise its jurisdiction legally and lawfully while cancelling such licence‑‑‑Order of Authority was set aside in circumstances.

J.J. Tajik v. Government of Balochistan PLD 1993 SC 445 ref.

Mohan Lal Shahani for Petitioner.

M. Iqbal Raad, A.‑G., Sindh for Respondents.

Date of hearing: 25th May, 1999.

2000 C L C 896

[Karachi]

Before S. Ahmed Sarwana, J

NATIONAL BANK OF PAKISTAN‑‑‑Plaintiff f:fa

versus

Messrs WEST PAKISTAN TANKS TERMINAL

(PVT.) LTD. ‑‑‑Defendant

Suit No. 1278 of 1999, decided on 19th November, 1999.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑

‑‑‑‑S. 10‑‑‑Leave to defend suit‑‑‑Limitation‑‑‑Starting point‑‑‑Court is required to take the first date of publication as the starting point of limitation for the purpose of filing an application for leave to defend the suit.

Qureshi Salt and Spices v. M.C.B. 1999 SCMR 2353 ref.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Rejection of application for leave to defend the suit‑‑­Effect‑‑‑Jurisdiction of Court‑‑‑Scope‑‑‑Where application for leave .to defend suit was rejected, Banking Court was empowered to decree the suit as prayed for‑‑‑Court before passing judgment and decree was bound to ensure that the claim of the plaintiff was in accordance with law and that the Court did not grant any relief to the plaintiff which the latter was not entitled to under the law.

(c) Islamic Jurisprudence‑‑‑

‑‑‑‑ Banking‑‑‑Mark‑up beyond the period of finance cannot be granted under the principles of Islamic Finance.

H.B.L.v. Farooq Compost 1993 MLD 1571 rel.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Contract Act (IX of 1872), S.74‑‑‑Suit for recovery of Bank loan‑‑‑Leave to defend suit‑‑‑Claim of liquidated damages by plaintiff/Bank‑‑‑Validity‑‑‑Person complaining of the breach of contract was entitled under S.74 of Contract Act, 1872 to claim reasonable compensation from the party committing such breach, not exceeding the amount specified in the agreement between the parties‑‑‑Reasonable compensation is a question of fact‑‑‑Where the plaintiff/Bank had neither shown nor indicated in any document as to how the liquidated damages had been calculated and how the liquidated damages claimed were reasonable compensation, such claim was contrary to the provisions of Contract Act, 1872 and the same was rejected.

(e) Banking Companies (Recovery of Loans, A_ dvances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Where no serious and bond fide dispute was raised by the defendant/borrower, the application. for leave to defend the suit was dismissed.

(f) Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑S. 33‑B‑‑‑Prudential Regulations, Reglns.III & XVIII‑‑‑Responsibilities of Bank Officers‑‑‑Where an Officer of a Bank, who is responsible for disbursement of loans. acts negligently or omits to take reasonable degree of care in extending a loan or credit facility as required by the Prudential Regulations and consequently, the Bank suffers loss, the Bank is justified in suing such Officer for recovery of the loss suffered by the Bank.

(g) Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑S. 33‑B‑‑‑Criminal breach of trust‑‑‑Bank Officer, when acts negligently or does not exercise the degree of care and caution expected of a prudent banker, such Officer of Bank is guilty of criminal breach of trust.

Noorullah Manji for Defendant No.1

2000 C L C 904

[Karachi]

Before Rasheed Ahmed Razvi, J

Ms. BENAZIR BHUTTO ‑‑‑Plaintiff

Versus

NEWS PUBLICATIONS (PVT.) LTD. and 4 others‑‑‑Defendants

Suit No. 127 and Civil Miscellaneous Application No.3977 of 1995, decided on 16th August, 1999. '

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XIV, R.2 & O.XV, R.3‑‑‑Legal issues‑‑‑Decision of such issues to be taken first‑‑‑Piecemeal decision‑‑‑Validity‑‑‑Legal issues going to the root of the subject‑matter of suit and not involving question of fact should be decided first in order to dispose of the whole cause and the same in no manner will amount to piecemeal decision.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 19‑‑‑Civil Procedure Code (Vi of 1908), O.XIV; R.2 & O.XV. R.3‑‑‑Freedom of speech and expression‑‑‑Question of protection provided by Art. 19 of the Constitution, is a mixed question of law and fact, such question could not be decided as a legal issue.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 19‑‑‑Freedom of Press ‑‑‑Object‑‑‑Freedom of Press is treated as one of the most essential part of democratic system‑‑‑Such freedom works as a check and balance on the other organs of the Government‑‑‑If any Authority exceeds its powers, it is the duty of the Press to bring such excess to the knowledge of people at large‑‑‑Press has been regarded as the mother of all liberties in a democratic society.

In re: Harijai Singh and another AIR 1997 SC 73 rel.

(d) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 19‑‑‑Civil Procedure Code (V of 1908), S.151, O.XIV. R.2 & O.XV. R.3‑‑‑Suit for damages‑‑‑Plaintiff claimed damages on the basis of news item published in the newspaper of the defendants‑‑‑Contention of the plaintiff was that the suit might be decided on the basis of two issues treating the same as legal issues and deciding the suit in the light of such findings‑‑‑Validity‑‑‑Question of fact was to be determined at the trial as to what were the limits within which the defendants were required to act and which were those areas where the defendants had exceeded the right of freedom of Press‑‑‑Defendants had contended that they had performed their duty to highlight the facts which were being conceded by the ‑ plaintiff, whereas the plaintiff had denied such allegations being false and baseless‑‑­Plaintiff had claimed damages in the shape of monetary compensation for the loss she had suffered as a result of her image being tarnished by the defendants within the country and abroad‑‑‑Where the Court had come to the conclusion, as a result of evidence produced by the parties, that the plaintiff did suffer loss to her reputation and good name by the misreporting made by the defendants, then the next question would arise as to what should be the quantum of damages---All such questions being a matter of evidence, could not be decided on the basis of affidavits the preliminary stage‑‑­Application for decision of the suit on the basis of two legal issue was dismissed accordingly.

Abdul Aziz and 18 others v. Muhammad Hassan and others PLD 1984 Quetta 101; Muhammad Saleem v. Hafiz Ahmed Din PLD 1975 Lah. 425; Bashir Ahmed and 8 others v. Aftab Ahmed and others PLD 1976 Lah. 1433; Sindbad Travels (Pvt.) Ltd., Lahore v. P.I.A. Corporation, Lahore 1990 MLD 2049; Murtaza Khan and 2 others v. Muhammad Zarif 1991 MLD 1017; Muhammad Yaqoob Khan v. Dalil Khan and 15 others 1993 CLC 633; Muhammad Hanif v. Provincial Election Authority 1982 CLC 1352 and' Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 19918 SC 823 ref.

Farooq H. Naek (absent) for Plaintiff. Muhammad Ali Mazhar for Defendants

2000 C L C 925.

[Karachi]

Before Hamid Ali Mirza and S.A. Rabbani, JJ

MUHAMMAD USMAN‑‑‑Appellant.

versus

K.B.C.A,‑‑‑Respondent

High Court Appeals Nos.99 and 100 and Civil Miscellaneous Applications k Nos.454 and 1480 of 1999, decided on 7th December, 1999.

Sindh Buildings Control Ordinance (V of 1979)‑‑‑ , ‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2‑‑‑Interim injunction, grant of‑‑‑Approved site plan, deviation from‑,‑Plaintiff while constructing his building deviated from approved site plan‑‑‑Injunction was sought against the Authority for not interfering in such construction of the plaintiff‑‑‑Contention raised by the plaintiff was that such deviations were compoundable at the cost of certain penalty‑‑‑Validity‑‑‑Where deviations, were of such nature which the Authority could have approved as a part of original plan under the Regulations, regularisation in such matter was ex post facto condonation ‑‑‑One could not deviate from the approved plan deliberately with a view to get the same regularised afterwards on payment of penalty‑‑‑Where the plaintiffs had made deviations from the approved plan, they were not entitled to the assistance of the Court in shape of equitable relief of injunction to continue such deviations.

Dr. Farogh Nasim, Muhammad Ali Sayeed and Mubarak Ali Siddiqui for Appellants. , Qazi Faez Isa for Respondent No. 1.

Dates of hearing: 4th, 11th, 18th, 23rd and 30th November, 1999.

2000 C L C 934

[Karachi]

Before Ghulam Nabi Soomro, J

versus

Mst. BIBI ZAITOON‑‑‑Respondent

First Rent Appeal No. 403 of 1996, decided on 31st August, 1999.

Sindh Rented Premises Order (XVII. of 1979)‑

‑‑‑‑5. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Landlady who was residing with one of her six sons for about twenty years, had no other accommodation except the premises in occupation of the tenant‑‑‑Fact of residing of landlady with his son, would not go to establish that her demand of personal need of premises at any subsequent point of time would be unjustified and not bona fide‑‑‑Landlady could not be forced to live with her son indefinitely and she also could riot be asked to go and live in house of any one of her other sons‑‑‑Landlady, in circumstances, had proved her personal bona fide need in respect of premises in question‑‑‑Tenant having failed to prove that landlady's claim of personal need was mala fide, Rent Controller had rightly ordered ejectment of tenant on ground of personal bona fide need of landlady.

PLD 1985 Kar. 639; J985 CLC 1007; 1986 CLC 1751; 1988 CLC 1833; 1980 CLC 1540; 1999 CLC 454; 1996 SCMR 1178; 1992 SCMR 1296; 1986 CLC 1747; PLD 1987 Kar. 462 and 1999 SCMR 1796 ref.

Ghulam Abbas Peshori for Appellant. S.M. Haider for Respondent.

Date of hearing: 20th August, 1999.

2000 C L C 942

[Karachi]

Before Hamid Ali Mirza, J

Shahzada MUHAMMAD MATEEN SIDDIQUI‑‑‑Applicant

versus

Shaikh QAYAMUDDIN SIDDIQUI and 5 others‑‑‑Respondents

Civil Revision Application No. 168 of 1990, decided on 31st October, 1998.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑0. VII, R. 11‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Limitation Act (IX, of 1908), Art. 120‑‑‑Suit for declaration‑‑‑Rejection of plaint‑‑‑Plaint could be rejected if from statement of facts narrated in plaint, Court had found that suit was barred by time Suit filed by plaintiff after few months from accruing the cause of action, could not be said to be time‑barred because Art. 120 of Limitation Act, 1908 providing period of six years was applicable to the suit. [pp. 945, 946] A, B & C Mst. Zeba and 12 others v. Members, Board of Revenue and others 1986 CLC 233; Ahmed Din v. Muhammad Shafi and others PLD 1971 SC 762; Mst. Hameeda Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Mst. Izzat v. Allah Ditta PLD 1981 SC 165; Jeewana v. MM. Sahbi PLD 1954 Lah. 253; Deen Muhammad and others v. Mehar Ali Khan and others PLD 1978 Kar. 267; Nisar Ali v. Noorabad Cooperative Housing Society PLD 1987 Kar. 676; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Habibullah and others v. Mst. Aziz Bibi NLR 1981 AC 3; Zohra Nigah v. Ali Automobiles PLD 1973 Note 8 at. p.16; Fatima Moin v. Additional District Judge, Sheikhupura 1992 SCMR 1199; Jeewana and 7 others v. Federation of Pakistan 1994 SCMR 826; Mst. Karim Bibi and others‑v. Zubair and others 1993 SCMR 2039; Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965 Dacca 439, Siraj Din through Legal Heirs v. Muhammad Ali and others PLD 1995 Lah. 313; Fatahuddin v. Zarshad and another 1973 SCMR 248 and Rambharosa Lal v. Sint. Binda Devi and another AIR 1956 Pat. 203 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Specific Relief Act (I of 1877), S.42 ‑‑‑ Limitation Act (IX of 1908), Art. 120‑‑‑Revisional jurisdiction, exercise of‑‑‑Concurrent findings of both Courts below on point of limitation were based on misreading of averments of plaint and misreading of provisions of law which had resulted in wrong conclusion‑‑‑Said findings were set aside by High Court in exercise of its revisions jurisdiction.

Mumtaz Ahmed Sheikh for Applicant. Narain Das C. Motiani for Respondents Nos. l and 2. Nemo for Respondents Nos. 3, 4 and 5. Nazar Hussain Dhoon for Respondent No.6.

Date of hearing: 22nd September, 1998.

2000 C L C 965

[Karachi]

Before Hamid Ali Mirza, J

SHAHID MIAN and another‑‑‑Appellants .

versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN‑»‑Respondent First Rent

Appeal No.211 of 1998, decided on 23rd December, 1998.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 10 & 15(2)(ii)‑‑‑Default in payment of rent‑‑‑Tenant who had failed to pay rent for four months, could not prove by reliable and satisfactory evidence that rent was being collected by landlord in lump sum which could be said to have overruled legal provisions of Ss.10 & 15 of Sindh Rented Premises Ordinance, 1979‑‑‑Rent Controller, in circumstances, rightly ordered ejectment of tenant on ground of default in payment of rent.

M.S. Qureshi for Appellant. Mian Mushtaq Ahmad for Respondent.

Date of hearing: 23rd December, 1998.

2000CLC978

[Karachi]

Before Amanullah Abbasi, J

Syed JAWAD AHMED ‑‑‑Plaintiff

versus

THE CHIEF CONTROLLER, KARACHI BUILDING CONTROL

AUTHORITY, KARACHI and 3 others‑‑‑Defendants

Suit No.567 and Civil Miscellaneous Application No.3246 of 1999, decided on 26th May, 1999.

Sindh Buildings Control Ordinance (V of 1979)‑‑‑

‑‑‑‑Ss. 6 & 7‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2‑‑­Deviation from approved building site plan‑‑‑Building was sealed by the Authorities as the same was constructed in deviation from the approved site plan‑‑‑Validity‑‑‑Controversy existed about modification in the premises‑‑­Authorities were directed to deal the premises immediately and plaintiff was directed to get the disputed modification regularized within six months and in case of failure of the plaintiff the/premises would be resealed.

Ghulam Ali Khokhar and Muhammad Younus for Plaintiff. Ikram Siddiqui for Defendant.

2000 C L C 992

[Karachi]

Before Ghulam Rabbani, J '

SOHAIL BHADKI‑‑‑Appellant

versus

Syed FAKHRE‑ALAM ZAIDI ‑‑‑ Respondent

First Rent Appeal No.312 and Civil Miscellaneous Application No.715 of 1999, decided on 30th August, 1999.'

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 16(1)‑‑‑Arrears of rent, determination of‑‑‑Holding a summary inquiry for such determination‑‑‑Validity‑‑‑No constraints on Rent Controller in holding a summary enquiry for determination of arrears of rent under S.16(1) of Sindh Rented Premises Ordinance,. 1979.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 16(2) & 21‑‑‑Ejectment of tenant‑‑‑Striking off defence‑‑‑Relationship of landlord and tenant was admitted between the parties and the rate of rent was admitted‑‑‑Rent Controller passed order under S.16(1) Sindh Rented Premises Ordinance, 1979 for the deposit of arrears of rent‑‑‑Tenant did not comply with such order of Rent Controller and failed to deposit not only arrears of rent but also future rent‑‑‑Effect‑‑‑Rent Controller was justified in striking off the defence of the tenant and passing further orders directing the tenant to vacate tenanted premises.

Ali Jan v. Shujauddin PLD 1985 Kar. 698; .1992 MLD 400; 1994 SCMR 159; PLD 1995 Kar. 31 and 1996 MLD 320 ref.

Syed Arif Ali Shah for Appellant.

Syed Sardar Azam for Respondent:

2000 C L C 997

[Karachi]

Before Hamid Ali Mirza , J

SULTANA JAFERY‑‑‑Appellant

versus

MUHAMMAD ALI ABIDI through his Legal Heirs‑‑‑Respondent

First Rent Appeals Nos.374 and 375 of 1998, decided on 14th October, 1999.

(a) Sindh Rented Premises Ordinance (XVD of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Bona fide personal need of landlord‑‑‑Application filed by landlords was resisted by tenant on the ground that the need of the landlords was not bona fide and rent of the premises was enhanced one month prior to the filing of ejectment application‑‑‑Validity‑‑‑Statement made in the cross­ examination showed that the tenant had not challenged specifically the personal requirement of the landlords with regard to their expansion in business in good faith‑‑‑Where the testimony and veracity of the landlord could not be shaken, fact that the rent was enhanced one month prior to the filing of ejectment application, would not show that the need of the landlords was riot in good faith‑‑‑Increase in the rent on account of increase in taxes could not be considered to be unjustifiable, barring and disentitling the landlords from seeking eviction of the tenant on the ground of personal requirements; in case the good faith was proved by the landlords‑‑‑Tenant failed to show anything which could disentitle in law the landlords from evicting the tenant from the premises‑‑‑Order of Rent Controller required no interference in circumstances.

Latif Ahmad v. Mst. Farrukh Sultana 1996 §,qMR 1233; Mrs. Ruby Misso v. Mrs. Kaniz Fatima and others 1990 CLC 1320; Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051; Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SC 394; Mst. Saira Bai v Syed Anisur Rahman 1989 SCMR 1366; Ejaz Ahmad Mir v. Mrs. Shamsa Khatoon 1996 MLD 648; Hajiani Zaina tai v. Messrs Allied Bank of Pakistan Limited 1989 CLC 729; Abdul Ghani v. Mst. Maryam 1989 CLC 989 and Khawaja Imran Ahmad v. Noor Ahmad and another 1992 SCMR 1152 ref.

(b) Sindh Rented Premises Ordinance (XVH of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Bona fide personal need of landlord‑‑‑Payment of "Pagri"‑‑­Effect‑‑‑Payment of "Pagri" would not be bar for seeking eviction of tenant by the landlord on the ground of personal requirement in good faith.

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Bringing structural changes by tenant without permission of landlrod‑‑‑Effect‑‑‑Structural changes made by tenant without prior permission of the landlord would be viewed from the point of view of the landlord and not that of the tenant‑‑‑Tenant had no, right to effect any structural changes without permission of landlords‑‑‑Evidence of landlords could not be rebutted or shaken by the tenant and the landlords had successfully proved their case that additions and alterations were made in the premises by the tenant without their permission‑‑‑Finding of Rent Controller was legal, proper and according to the evidence on record and the same could not be interfered with in circumstances.

Muhammad Mirza v. Muhammad Hussain Ghani PLD 1983 Kar.

162; Lala Niaz Ahmad v. Malik Ishtiaq Ahmad and others 1991 MLD 1655 and Khalifa Fateh Muhammad v. Ahmad Nasir Khan 1988 SCMR 689 ref.

Muhammad Ali Jan for Appellant.

Khalid Javed for Respondent.

Dates of hearing: 12th, 13th and 14th October, 1999.

2000 C L C 1005

[Karachi]

Before Rana Bhagwan Das and Mushir Alain, JJ

Mst. NOOR JAHAN‑‑‑Petitioner

versus

GOVERNMENT OF SINDH and 4 others‑‑‑Respondents

Constitutional Petition No.D‑897 of 1996, decided on 26th August, 1999.

(a) Sindh Katchi Abadis Act (B of 1987)‑‑‑

‑‑‑‑Preamble‑‑‑Objects of legislation ‑‑‑Sindh Katchi Abadis Act, 1987 was enacted to make provisions for the development and improvement of the areas of Katchi Abadis regularisation of such Katchi Abadis and to establish authority for such purpose.

(b) Sindh Katchi Abadis Act (II of 1987)‑

‑‑‑‑(. 4‑‑‑Creation of authority‑‑‑purpose‑‑‑Authority was created under provision of S.4, Sindh Katchi Abadis Act, 1987 with a view to develop, improve or regularise all the Katchi Abadis in accordance with the provisions of said Act.

(c) Sindh Katchi Abadis Act (H of 1987)‑‑

‑‑‑‑Ss. 19, 20 & 21‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Cancellation of plot allotted to petitioner under the provisions of Sindh Katchi Abadis Act, 1987‑‑‑Entitlement of petitioner for allotment of such property in her name‑‑‑Cancellation of allotment without notice‑‑‑Validity‑‑‑If petitioner was neither in unauthorized occupation of any area, nor found as such before the cut off date as a result of survey conducted by the staff of the Authority, allotment as well as execution of lease infavour of the petitioner was neither in accordance with provisions of Sindh Katchi Abadis Act, 1987, nor under any other law for the time being in force‑‑­Officials of Katchi Abadis Authority had acted in connivance with the petitioner and made collusive and fraudulent recommendations to justify transfer of the plot in favor of the petitioner without any factual or legal basis and justification‑‑‑Cancellation of allotment/lease might be vitiated for want of notice but the same could not be termed as altogether unlawful, without jurisdiction or of no legal effect.

BPgum Shams‑un‑Nisa v. Said Akbar Abbasi PLO 1982 SC 413; Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362; Engineering‑in­Chief Branch v. Jamaluddin 1989 SCMR 441 and Mumtaz Ali Mangi v. National Bank of Pakistan 1995 PLC (C.S.) 119 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Order in nature of writ of certiorari or mandamus‑‑‑Object‑‑­Such an order is discretionary order and is to foster justice and right a wrong.

Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 rel.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 199‑‑‑Discretionary power of High Court under Art. 199 of the Constitution‑‑‑Scope‑‑‑To invoke such discretionary power of High Court. petitioner must show that the order sought to be set aside had occasioned some injustice to the petitioner‑‑‑Where no injustice was caused to any party, rather such order of the Authority cured manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked.

Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; Muhammad Baran v‑. Member (Settlement and Rehabilitation) PLD 1991 SC 691; Chief Settlement Commissioner v. Muhammad Fazil Khan PLI) 1975 SC 331; Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal 1986 SCMR 1071 and Export Promotion Bureau v. Qaiser Shafullah 1994 SCMR 859 ref.

Manzar Alam and Zaheer Hasan for. Petitioner.

S. Zawar Hussain Jafri, Addl. A.‑G. for Respondent No: 1. M.A. Rasheed for Respondents Nos.2 to 5, Date of hearing 25th August, 1999.'.

2000 C L C 1045

[Karachi]

Before Zahid Kurban Alavi, J

SOCIETE DES PRODUITS NESTLE S.A.

through Vice‑President‑‑‑Plaintiff

versus

AFIQUE SWEETS through Proprietor and 4 others‑‑‑Defendants

Suit No.. 1109 of 1996 Civil Miscellaneous Applications Nos.9380 and 10302 of 1998, decided on 17th May, 1999.

Sindh Chief Court Rules (O.S.)‑‑‑

‑‑‑‑R. 159‑‑‑Civil Procedure Code (V of 1908), 5.151‑‑‑Restoration of suit‑‑­Defendant failed to file written statement within the time stipulated under the law‑‑‑Such application was hopelessly barred by limitation and no justification had been shown for such delay‑‑‑Effect‑‑‑Where the plaintiff had a very strong case and the applicant/defendant was using various methods to try and prolong the case, which should have been disposed of much earlier, permission to file written statement was not granted.

Hassan Irfan for Plaintiff. Faizuddin for Defendants.

2000 C L C 1056

[Karachi]

Before Rana Bhagwan Das and Mushir Alain, JJ

MUNIR AHMAD‑‑‑Petitioner

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petition No. D‑1132 of 1994, decided on 28th January, 2000.

(a) Sindh Local Government Ordinance (XII of 1979)‑‑‑

‑‑‑‑S. 45(4)‑‑‑Sindh Local Councils (Contract) Rules, 1980, R.5‑‑­Immovable property of Local Council‑‑‑Transfer of its immovable property by Local Council without auction‑‑‑Validity‑‑‑Local Council is not seized of authority to enter into any contract for transfer by grant, sale, mortgage or otherwise of immovable property without putting the same in open auction‑‑­Such contract without recourse to auction can be entered with the approval of Government accordingly.

(b) Sindh Local Government (Contract) Rules, 1980‑‑‑

‑‑‑‑8. 5‑‑‑Object of provisions of R.5 of Sindh Local Councils (Contract) Rules, 1980‑‑‑Awarding of contract‑‑‑While awarding any contract, pecuniary interests of the Council are to be safeguarded and ensured.

(c) Executive authority‑‑‑

, ‑‑‑‑Exercise of‑‑‑Laws are not ornamental piece of Legislature to be preserved on the statute books but are framed by Legislature to be respected and observed in letter and spirit, authority of executive/public functionaries emanates from law.

(d) Sindh Local Government Ordinance (XII of 1979)‑‑‑

‑‑‑‑S. 45(4)‑‑‑Immovable property of Local Council‑‑‑Jurisdiction of Local Council‑‑‑Scope‑‑‑Where provisions of Sindh Local Government Ordinance, 1979, and. rules framed thereunder circumscribe the authority of the Local Council to deal with immovable property or any interest or right therein such authority is to be exercised within the parameters set out therein and not otherwise‑‑‑Local Councils do not possess any plenary power to deal with public property in the manner they like, ignoring laws regulating their authority.

(e) Sindh Local Government Ordinance (XU of.1979)‑‑‑

‑‑‑‑S. 45(4)‑‑‑Public property, disposal of‑‑‑Rights of citizens‑‑‑Where question of disposal of such property or rights thereunder is concerned, all the citizens are entitled to have equal and fair opportunity to acquire the same in fair and equitable manner‑‑Such is the intent of provisions of Sindh Local Government Ordinance, 1979.

(f) Sindh Local. Government Ordinance (XII of 1979)‑‑‑

‑‑‑‑S. 45(4)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Allotment of plot, without auction‑‑‑Validity‑‑‑Where authority had flouted law and rules framed thereunder to benefit a single individual which was not permissible, such allotment of the plot in favour of the, respondent was without lawful authority and all actions based thereon were struck down. Kalat Press v. Secretary, Education Department 1998 CLC 833 ref.

Abdul Naeem for Petitioner.

Zawar Hussain Jafferi, Addl. A.‑G. for Respondent No. 1. Nemo for Respondent No.2.

Abdul Rehman Baloch and Kadir Bux Memon for Respondent No.3.

Date of hearing: 1st December, 1999.

2000 C L C 1083

[Karachi]

Before Rana Bhagwan Das and Mushir Alam, ii

QURBAN and 2 others‑‑‑Petitioners

versus

SENIOR MEMBER, BOARD OF REVENUE, SINDH and 2 others‑‑‑Respondents

Constitutional Petition No.D‑682 of 1992, decided on 20th October, 1999.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑

‑‑‑‑5. 164‑‑‑Review‑‑‑Misquoting of provision of 'law‑‑‑Effect‑‑‑Misquoting of provision of law would not render particular proceedings incompetent, provided the jurisdiction invoked was available to the forum under law‑‑­Review application filed wrongly under S. 163, instead of S.164 of West Pakistan Land Revenue Act, 1967 was competent.

(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 164‑‑‑West Pakistan Board of Revenue Act (XI of 1957). S.8‑‑­Review‑‑‑Limitation‑‑‑Starting point‑‑‑Power to review was available to the Member, Board of Revenue, both under S.164 of West Pakistan Land Revenue Act, 1967 as well as under S.8 of West Pakistan Board of Revenue Act, 1957‑‑‑Where the petitioners were not party in the proceedings before the Board of Revenue, knowledge of any order passed by the Board could not be attributed to them‑‑‑Limitation would only commence to run from the date of knowledge of the petitioners and not from the date of such order passed by the Board of Revenue.

(c) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 164‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Rights finally determined by Civil Courts‑‑‑Nullifying such rights in the proceedings before Revenue Authorities‑‑‑Validity‑‑‑Rights of the petitioners had already been adjudicated upon and determined by the Civil Court of plenary jurisdiction and the same were affirmed by the Lower Appellate Court‑‑‑Where such determination of rights had taken place before the competent forum and was not agitated further in appeal, such rights had attained finality and were binding on the litigating parties‑‑‑Respondent initiated proceedings before Revenue Authorities and by suppression of facts managed to get such rights nullified in those ex-parte proceedings ‑‑‑Effect‑‑­High Court under its Constitutional jurisdiction set such orders at naught‑‑­Orders obtained by respondent by misrepresentation and suppression of facts were set aside in circumstances.

S. Ali Aslam Jaffri for Petitioners.

Zawar Hussain Jaffri, Addl. A.‑G. for the Official Respondents Nos. l and 2.

Gul Hassan, Attorney for Respondent No.3 (in person).

Date of hearing: 20th October, 1999.

2000 C L C 1093

[Karachi]

Before'Mushtaq Ahmed Memon, J

Messrs SUZUKI MOTORCYCLE PAKISTAN LIMITED‑‑‑Plaintiff

versus

TARIQ JAWED‑‑‑Defendant

Suit No. 1151 of 1997, decided on 18th February, 1999.

Civil Procedure Code (V of 1908)‑

‑‑‑‑Ss. 9, 16, 17, 20 & 120‑‑‑Suit for recovery of money‑‑‑Territorial jurisdiction of Court ‑‑‑Determinant ‑‑‑Appointment of defendant as dealer of goods of plaintiff was approved by plaintiff at Karachi‑‑‑Delivery challans and sales invoices were also prepared at Karachi‑‑‑Defendant used to remit payment to plaintiff at Karachi‑‑‑Court at Karachi, in circumstances, was vested with territorial jurisdiction to decide the suit.

Messrs Agricides (Pvt.) Ltd. v. Messrs Ali Agro Supply Corporation Ltd. 1988 CLC 59; West Pakistan Industrial Development Corporation v. Messrs Sheikh Muhammad Amin & Co. 1992 CLC 2047 and Muhammad Yasin v. Ch. Muhammad Abdul Aziz PLD 1993 SC 395 ref.

S. Amjad Hussain for Plaintiff.

Defendant (absent)

Date of hearing: 18th February, 1999.

2000 C L C 1097

[Karachi]

Before Kamal Mansur Alam, C.J.

and Muhammad Roshan Essani, J

KHUSHI MUHAMMAD MANDAN ‑‑‑Petitioner

versus

PRINCIPAL AND CHAIRMAN, ACADEMIC COUNCIL, SINDLI MEDICAL COLLEGE, KARACHI

and another‑‑‑Respondents

Constitutional Petitions Nos.D‑57 of 1999,' D‑1883, D‑1973 of 1998 and Civil Miscellaneous Nos.5248 and 5249 of 1998, decided on 22nd January, 1999.

Pakistan Medical and Dental Council Regulations, 1965‑‑‑

‑‑‑‑Regln. 4(ii)‑‑‑‑Educational institution‑‑‑Candidates who failed to clear First Professional M.B.B.S. Examination in four attempts requested to appear for the fifth time in ensuing examination‑‑‑Regulation 4(ii) of Pakistan Medical and Dental Council Regulations, 1965 having provided only four chances to clear said examination, candidate who had already availed said chances, was debarred from appearing in said examination.

Shahid Ali v. Karachi University 1998 CLC 1449; Munaza Habib and others v. The Vice‑Chancellor and others 1996 SCMR 1790; Akhtar Ali Javed v. Principal, Quaid‑i‑Azam Medical College, Bahawalpur 1994 SCMR 532; Van Abdullah and another v. Government of Sindh and 3 others 1997 MLD 2581 and Asim Siddiqui v. Principal, Ayub Medical College, Abbottabad and another PLD 1992 Pesh. 52 ref.

Farrukh Zia Shaikh for Petitioner (in Constitutional Petition No.D‑1883 of 1998).

Raja Qasit Nawaz for Petitioner (in Constitutional Petition No.D‑1973 of 1998).

Bhajandas Tajwani for Petitioner (in Constitutional Petition No.D‑57 of 1999).

Shoaib Ali Khan for Respondent No.2.

Nadeem Azhar Siddiqui for Respondent No.3.

M. Iqbal Raad, A.G., Sindh.

2000 C L C 1107

[Karachi]

Before Ghulam Nabi Soomro, J

MUHAMMAD RIAZ‑‑‑Applicant

versus

KARACHI‑ METROPOLITAN CORPORATION through Director, Land and Estate and another‑‑‑Respondents

Civil Revision No.231 of 1998, decided on 5th April, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), Ss. 11, 115 & O. VII, R.11‑‑­Suit for declaration ‑‑‑Res judicata‑‑‑Revisional jurisdiction, exercise of‑‑­Matter directly and substantially in issue in subsequent suit was same as in former suit which was dismissed, but that fact was not disclosed by plaintiff/petitioner in subsequent suit‑‑‑Suppression of fact of filing of former suit and its non‑disclosure in subsequent suit alone could be sufficient ground to refuse to grant discretionary relief of declaration because said conduct of plaintiff/petitioner would disentitle him from getting such relief for having approached a Court of law with unclean hands‑‑‑Trial Court had dealt with all legal and factual issues in detail and its finding had not been disturbed in appeal by Appellate Court‑‑‑Concurrent judgment and decree passed by Courts below not suffering from any illegality, material irregularity or any misappreciation or non‑reading of evidence, could not be interfered with by High Court in exercise of its revisional jurisdiction. .

Muhammad Riaz v. K.M.C. and K.D.A. Suit No.393 of 1990; Haji Muhammad v. Karachi Municipal Corporation and 3 others 1979 CLC 815 and Muhammad Rafiq v. Divisional Engineer, P.W. Railways and others 1992 CLC 786 ref.

Imdad Hussain Kazi for Applicant. Tahawwar Ali Khan for Respondent No. l . S. Muzaffar Imam for Respondent No.2.

2000 C L C 1111

[Karachi]

Before Dr. Ghous Muhammad, J

MUHAMMAD YOUSUPKHAN‑‑‑Appellant

versus

Mgt. ABIDA BEGUM and 6 others‑‑‑Respondents

First Rent Appeal No. 118 of 1997, decided on 13th November, 1998.

Sindh Rented Premises Ordinance (XVII of 1979)

‑‑‑‑Ss. 15 84 21‑‑‑Bona fide personal reed of landlord of a shop‑‑‑Experience in business by landlord‑‑‑Onus to prove‑‑‑Landlord was to prove the bona fide personal need‑‑‑Landlord was jobless and had sufficient funds to establish the proposed business in the demised premises‑‑‑Not essential that landlord should possess experience of the proposed business‑‑‑Plea by tenant being devoid of any force was dismissed accordingly.

PLD 1988 SC 190; Dr. Wasif Ahmed Jalali's case 1996 MLD 1733; PLD 1982 SC 465; 1986 MLD 1237; .1989 CLC 34 and 1989 CLC 1116 ref:

M. Farooque Hashim for Appellant. S.M. Akhtar Rizvi for Respondents., Date of hearing: 6th October, 1998.

2000 C L C 1119

[Karachi]

Before Hamid Ali Mirza, J

JAVADAN CEMENT LIMITED‑‑‑Plaintiff

versus

GOVERNMENT OF SINDH through

Secretary Land Utilization Department, Karachi and 3 others‑‑‑Defendants

Suits Nos.38, 37 and 39 of 1994, decided on 12th January, 1999

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 10 & 12(2)‑‑‑Transfer of Property Act (IV of 1882), Ss.3 & 105‑‑­Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑Suit for declaration Cancellation of grant of lease‑‑‑Setting aside of judgment and decree on ground of fraud and misrepresentation‑‑‑Suit for declaration, cancellation of grant of lease in favour of original lessee without impleading subsequent purchasers of leased property from original lessee‑‑‑Plaintiff failed to make new purchasers/applicants as party to suit despite the fact that it had come to his knowledge that original lessee had sold away leased property to applicants/new purchasers prior to filing of the suit‑‑‑Act of plaintiff/respondent of not impleading appilcants/new purchasers as party to the suit, would amount to suppressing names of persons interested in property in dispute and would amount to fraud having been played by plaintiff‑‑‑Judgment and decree obtained by plaintiff, were set aside by accepting application filed by applicants/new purchasers of land in dispute under S.12(2), C.P.C. directing plaintiff to implead applicants/new purchasers as defendants in suit who would be given right to file written statement.

S.S. Jahangir for Applicants.

Dilawar Hussain for Plaintiff:

Chowdhary Muhammad Rafique, A.A.‑G. for Defendants.

2000 C L C 1129

[Karachi]

Before Sabihuddin Ahmed, J .

HASSAN IMAM and another‑‑‑Plaintiffs

versus

NAVAB KHAN and 2 others‑‑‑Defendants

Suit No. 1305 of 1989, decided on 5th October, 1999.

Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑West Pakistan Motor Vehicles Ordinance (XIX of 1965), S.95‑‑­Suit for damages‑‑‑Commutation of compensation‑‑‑Liability of insurance company‑‑‑Minor son of plaintiff aged about two years died in an accident which occurred due to rash and negligent driving of the defendant‑‑‑Plaintiffs claimed compensation for a sum of Rs.5,000,000 against the defendants‑‑­Contention by defendant/insurance company was that under S.95, West Pakistan Motor Vehicles Ordinance, 1965 third party insurance liability was extended only up to a sum of Rs.20,000‑‑‑Validity‑‑‑Where defendants failed to give any evidence in rebuttal of the contention that death of the minor was caused by rash and negligent driving of the defendant and the truck was owned by the other defendant, the assertion of the plaintiff was to be accepted‑‑‑Plaintiffs were entitled to the amount of Rs.5,94,400 in accordance with the established principles of calculation‑‑‑Contention of the defendant/insurance company was not controverted by the plaintiffs‑‑‑Decree in the amount of Rs.5,94,400 jointly and severally was issued against defendants.

Do,st Muhammad v. Pakistan Steel Mills Ltd. 1996 CLC 530 and Mairajuddin v. Government of Sindh 1998 MLD 1726 ref.

Hashim Padhiar for Plaintiffs. Nemo for Defendants Nos. l and 2. Riazul Hasan for DefendantNo.3. Nasir Maqsood: Amicus curiae.

Date of hearing: 5th October, 1999.

2000 C L C 1134

[Karachi]

Before Sabihuddin Ahmed, J

BABAR PARVEZ‑‑‑Appellant

versus

MUHAMMAD SAAD‑‑‑Respondent

First Rent Appeal No.529 of 1998 and Civil Miscellaneous Applicatioin

No. 1080 of 1999, decided on 27th January, 2000..

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.. 16(2)‑‑‑Failure to deposit rent in Court‑‑‑Striking off defence‑‑­Premises was owned by more than one persons and the landlord was one of them‑‑‑Tenant was depositing rent in the Court even prior to the filing of ejectment application‑‑‑Tenant, after passing of tentative rent order by the Rent Controller by mistake kept on depositing the rent in miscellaneous case‑‑‑Rent Controller struck off defence of the tenant as the rent was not deposited in his Court‑‑‑Validity‑‑‑Tenant having deposited the amount by mistake in a miscellaneous case instead of the case relating to ejectment application, as long as the amount payable was out of the pocket of the tenant, non‑compliance of the rent order, could at the best be treated as an irregularity or a technical default and the penal consequences of S,16(2) of Sindh Rented Premide Ordinance, 1979 could not ensue ...Orderof Controller was set aside and the case was remanded to the Rent Controller to be decided in accordance with law.

Maj. (Retd.) ASK Samad v. Lt.‑Col. (Retd.) A. Hussain 1987 SCMR 1013 and Abdullah Ghangro v. Tahira Begum 1988 SCMR 970 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S(. 16(2)‑‑‑Technical default‑‑‑Striking off defence‑‑‑Consequences of S.16(2), Sindh Rented Premises Ordinance, 1979, viz. striking off defence being penal, should not be applied to technical default.

Aftab Ahmad Khan v. Zaibunnisa 1998 SCMR 2085 ref.

Ali Ahmad Tariq for Appellant. S.M. Haider for Respondent.

2000 C L C 1140

[Karachi]

Before Saiyed Saeed Ashhad, J

INAM AHMED and another‑‑‑Appellants

versus

HAKIMUDDIN and another‑‑‑Respondents

First Rent Appeal No.371 of 1996, decided on 19th August, 1999.

(a) Sindh Rented Premises Ordinance (XVU of 1979)‑‑‑

‑‑‑‑S. 5 =‑Tenancy agreement providing no period of tenancy ‑‑‑Execution‑‑­Requirement‑‑‑Tenancy agreement providing no period of tenancy and suggesting the same to be in perpetuity ought to have been executed on the stamp paper of the required denomination and should have been registered as every document purporting to transfer leasehold rights in immovable property for a period exceeding 11 months requires payment of a particular stamp duty as well as registration.

Mst. Zehra Begum v. Pakistan Burma Shell Ltd. PLD 1984 SC 38; Muhammad Rizwan v. Mst. Naimat Bai 1991 CLC 156; Muhammad Hanif v. Mumtaz Ahmed PLD 1986 Kar. 16 and Mustafa Hussain Siddiqui v. Malik Islam Akbar 1984 CLC 2869 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15(2)‑‑‑Ejectment on ground of default and bona fide personal need of landlord‑‑‑Agreement between landlord and tenant executed for no fixed period‑‑‑Agreement also providing that the landlord would not eject the tenant under any circumstances‑‑‑Agreement relied upon was on non judicial stamp paper of Rs.10 and Rs.4 and the same was an unregistered document‑‑‑Effect‑‑‑Tenancy in question was not for unspecified period of time or in perpetuity and by execution of such agreement of tenancy, the landlord did not forego or surrender his right to seek ejectment of the tenant from the premises.

Muhammad Rizwan v. Mst. Naimat Bai 1991 CLC 156; Muhammad Hanif v. Mumtaz Ahmed PLD 1986 Kar. 16 ref.

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Tenant paying to landlord specified amount in addition to rent‑‑­Jurisdiction of Rent Controller whether taken away, where relationship of landlord and tenant was not denied‑‑‑Mere fact that the tenant had paid a specified amount in addition to rent would not take away the jurisdiction of the Rent Controller in a case in which relationship of landlord and tenant was not denied.

M.K. Muhammad v. Muhammad Abu Bakar 1993 SCMR 200 ref.

(d) Sindh Rented Premises Ordinance (XVU of 1979)‑‑‑

‑‑‑‑S. 15(2)‑‑‑Default in payment of rent‑‑‑Proof‑‑‑Burden‑‑‑Where landlord had categorically stated on oath that the tenant had committed default in the payment of rent for specified period, burden of proving payment of rent for period of such default was on the tenant.

(e) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 10‑‑‑Payment of rent‑‑‑Proof‑‑‑Presenting coupon of money order by tenant in proof of such payment‑‑‑Coupon of such money order did not bear any endorsement or report from Postal Authorities/postman that landlord had refused to accept the same‑‑‑Money order was not sent by the tenant but by his wife' who was not the tenant and no evidence was brought on record to, establish that she had been authorised to tender rent by way of money order on behalf of the tenant‑‑‑Effect‑‑‑Where there was no evidence on record to establish that the rent for the disputed period was remitted to the landlord by money order and he refused to accept the same, presenting of such money order coupon was of no assistance in establishing the payment of rent for disputed period.

(f) Sindh Rented Premises Ordinance (XVU of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Default in payment of rent‑‑‑Tenant paying to landlord specified amount in addition to rent‑‑‑Effect‑‑‑Where it was established that the landlord received an extra sum which he was not entitled to receive and such extra amount would be sufficient to cover up the arrears of rent for the period of default, tenant could not be held defaulter in circumstances.

M.K. Muhammad v. Muhammad Abu Bakar 1993 SCMR 200 ref.

(g) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 15(2) & 21‑‑‑Wilful default in payment of monthly rent‑‑‑Sub‑letting of premises‑‑‑Tenant relied on an agreement whereby the landlord had allowed sub‑letting of the premises and contention was raised by tenant that such plea could not be raised by the landlord in ejectment proceedings initiated against the tenant‑‑‑Rent Controller gave finding on the issue of sub­letting in favour of the tenant but ordered ejectment on the basis of willful default in payment of monthly rent‑‑‑Validity‑‑‑Parties could not contract out of statute and where the law permitted a landlord to eject the tenant on the grounds specified in the statute, then such grounds would always remain available to the landlord irrespective of any agreement envisaging surrender or waiver of such grounds by the landlord‑‑‑Finding of the Rent Controller on the issue of sub‑letting was illegal, based on wrong assumption and contrary to the principle of law and the same was set aside‑‑‑Where the tenant had sub‑let the premises; the landlord had acquired the right to eject the tenant or any other person put in possession by the tenant. (p. 1150] G

1984 CLC 2637; 1994 CLC 1866; Mukhtar Ahmed v. S.M.A. Naqvi 1992 SCMR 1144; Noor Ahmed and others v. Khawaja Imren Ahmed 1992 SCMR 1152; Muhammad Shafie Chaudhry v. Saeed Ahmed 1996 SCMR 1784; Malik Islam Akbar v. Mustafa Hussain 1992 CLC 1753; M.K. Muhammad v. Muhammad Abu Bakar 1991 MLD 801; Mst. Khursheed Begum and others v. Ahmed Bakhsh and others PLD 1985 SC 405; The Province of East Pakistan v. Muhammad Hassan Mir PLD 1965 SC 1; Abdul Mehdi v. Mst. Abdul Hakim 1990 MLD 2182; Abdul Haq and another v. Syed Basharat Ali 1985 CLC 1429; Muhammad Raees v. Imamuddin 1997 MLD 530 and Ejaz Khan v. Shahida Iqbal Qureshi 1994 CLC 932 ref.

Mubarak Hussain Siddiqui for Appellants. ' M. Akram Zuberi for Respondents.

Date of hearing: 1st June, 1999.

2000 C L C 1153

[Karachi]

Before Mushtaq Ahmed Memon, J

ALLIED BANK OF PAKISTAN LIMITED‑‑‑Plaintiff

versus

DIGITAL RADIO PAGING (PVT.) LTD.

and 4 others‑‑‑Respondents

Suit No. 1064 of 1997 and Civil Miscellaneous Application No.4264 of 1998, decided on 12th June, 1998.

(a) .Banking Companies (Recovery of Loans, Advances, Credits arid Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 7(2)‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑‑Expression "with respect to which the procedure has not been provided for in this Act"‑‑­Meaning and scope‑‑‑Expression means that whenever any provision about procedure for trial has been made in Banking Companies ‑(Recovery of Loans, Advances, Credits and Finances) Act, 1997, the same shall have overriding effect and‑ the procedure prescribed under C.P.C. shall stand excluded to that extent.

(b) Practice and procedure‑‑‑

‑‑=‑Where an enactment specifies a remedy, such remedy has to be considered exclusively and the party aggrieved by an order made in exercise of the special jurisdiction must seek only such remedy and no other.

(c) Review‑‑‑

‑‑‑‑ Power of review is not an inherent power `and must be based on specific conferment by the law.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 27‑‑‑Review‑‑‑Jurisdiction of Banking Court‑‑‑Scope‑‑‑Provisions of 5.27, Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 contain specific provision prohibiting the power of review‑‑‑Such prohibition includes procedural as well as substantive review without any exception.

Sami Pharmaceuticals Ltd. v. Sindh Labour Appellate Tribunii', and 3 others 1985 PLC 754 ref.

(e) Banking Companies (Recovery of Loans, Advances, Credit` and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 10‑‑‑Civil Procedure Code (V of 1908), S.151, & O.IX, .R.9‑‑­Application for leave to defend the suit was dismissed for non prosecution‑‑­Setting aside of such order‑‑‑Counsel for the defendants was waiting for his case before another Bench of High Court while the case was taken up for three times and finally application for leave to defend the suit was dismissed for non‑prosecution‑‑‑Dismissal of an application when the counsel was waiting for his case to be called for by another Bench‑‑‑Validity‑‑‑Counsel on such engagement could seek an order for keeping matter before another Bench .aside or, asked for adjournment‑‑‑No justification existed to entertain such application and same was dismissed accordingly.

Reference No.1 of 1988, made by the President of Pakistan under Article 186 of the Constitution of the Islamic Republic of Pakistan PLD 1989 SC 75; Pakistan Fisheries Ltd. v. United Bank Ltd. PLD 1993 SC 109; Grindlay's Bank Limited v. Central Government Industrial Tribunal and others 1985 PSC 21‑and Messrs Tank Steel and Re‑rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others PLD 1996 SC 77 ref.

(f) Practice and procedure‑‑‑

‑‑‑‑ Counsel who are engaged by the parties, can in all fairness, expect accommodation‑‑‑Indulgence shown by the Court cannot be misused and a counsel, while waiting for his case to, be taken up by one Bench cannot, on the ground of such engagement, seek an order for keeping matter before another Bench aside or ask for adjournment‑‑‑Bar is equally responsible to come out reasonably for coping with the mountihg pendency of cases.

Azizur Rehman for Plaintiff. M.L. Shahani for Defendants Nos. I to 4.

2000 C L .C 1161

[Karachi]

Before Hamid Ali Mirza, J

Messrs HABIB BANK LTD. ‑‑‑Appellant

.

versus

Messrs NAZAR & CO. ‑‑‑Respondent

First Rent Appeal No.930 of 1987, decided on 6th February, 1999, (a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15‑,‑Power of attorney, non‑filing of ‑‑‑Ejectment proceedings were initiated by Bank against its tenants‑‑‑Such proceedings were pursued by the Manager of that Bank‑‑‑Effect‑‑‑Plea raised by tenant was, that as the Manager did not file power of attorney executed in his favour to pursue the matter, such proceedings were not maintainable‑‑‑Validity‑‑‑If matter was being pursued by the Manager of the Bank, non‑filing of power of attorney would be mere irregularity in circumstances.

Khayam Film and another v. Bank of Bahawalpur 1982 CLC 1275 distinguished.

Muhammad Shafi Dad Khan v. Hassanul Azmi 1983 CLC 2238; Zamindar Cooperative Housing Society v. National Bank of Pakistan 1982 CLC 1276; Messrs Muhammad Siddique Muhammad Umer v. Australasia Bank Ltd. PLD 1966 SC 684; Mst. Rehmat Bibi v. Abid and others 1987 MLD 28J8; Munir Hussain v. Mst. Mehrun Nisa PLD 1982 Kar. 71 and Shahabuddin and another v. Mst.‑ Mariam Bibi and .others 1995 MLD 45 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑(. 15‑‑‑Ejectment proceedings‑‑‑Sub‑letting‑‑‑Proof‑‑‑Place of sign board outside premises in the name of a company of the tenant‑‑‑Validity‑‑‑Placing of such sign board would not prove the sub‑letting on the part of the tenant. [p. 1167] B

(c) Sindh Rented Premises Ordinance (XVH of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Ejectment of tenant‑‑‑Impairing materially value or utility of premises‑‑‑Construction of bath rooms‑‑‑Effect‑‑‑Sub‑letting of premises by tenant‑‑‑Landlord's ejectment application was dismissed by Rent Controller‑‑‑Validity‑‑‑No reliable and material evidence was produced by landlords to prove such allegations‑‑‑Landlords failed to prove that what alterations and constructions were made and raised by the tenants in the tenancy premises were of such a nature which could be said to have materially impaired the value, and utility of premises‑‑‑Even if.it be assumed that bath rooms had been constructed, which though the same not proved to have been constructed, such would not be an act which could be said to have materially impaired the value and utility of the premises‑‑‑Allegation had remained allegation which could not be proved by satisfactory evidence by the landlords, while the tenant had successfully rebutted the same‑‑‑No merit in the contention of the landlords having been found, no exception could be taken to the finding of the Rent Controller in circumstances.

Syed Zaki Muhammad for Appellant. Iqbal Kazi for Respondent.

Date of hearing: 13th October, 1998.

2000 C L C .1168

[Karachi]

Before Dr. Ghous Muhamnwd, J

Mrs. KANIZ FATIMA and others‑‑‑Appellants

versus

Miss NAUSHABA JABEEN and others‑‑‑Respondents

First Rent Appeals Nos.584, 585, 586, 587, 589 and 593 of 1991, heard on I lth February, 1999.

(a) Sindh Rented Premises Ordinance (XVB of 1979)‑‑.

‑‑‑‑Ss. 15(2) & 18‑‑‑Wilful default in monthly rent‑‑‑Notice of change of ownership‑‑‑Where tenant on service of notice under S.18, Sindh Rented Premises Ordinance, 1979, by the landlord failed to pay/tender rent due within 30 days of receipt of such notice, without valid reasons, that amounted to commission of wilful and deliberate default in the payment of rent‑‑‑Tenant was liable to be evicted in circumstances.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 18‑‑‑Notice of change of ownership‑‑‑Mentioning of rate of rent and arrears of rent in such notice‑‑‑Scope‑‑‑Landlord, under the provisions of S.18, Sindh Rented Premises Ordinance, 1979, is not duty bound to mention the rate of rent as well as arrears of rent in such notice‑‑‑Landlord is only required to send intimation to the tenant regarding change of ownership in writing by registered post and the tenant is required to pay rent due within 30 days of the receipt of such intimation.

(c) Sindh Rented Premises Ordinance (XVH of 1979)‑‑‑

‑‑‑‑S. 8‑‑‑Fixation of fair rent‑‑‑Dispute regarding rate of rent‑‑‑Tenants had accepted to pay the rent at revised rate and paid the same for a long period of 15 months‑‑‑Plea raised by the tenant was that landlord should get fair rent fixed by Rent Controller prior to the institution of ejectment proceedings‑‑­Validity‑‑‑Landlord was not required to get the fair rent fixed prior to the institution of the ejectment proceedings.

(d) Power of attorney‑‑

‑‑‑‑ General power of attorney and special power of attorney ‑‑‑Distinction‑‑­Forms can be used by principal to give powers to the attorney to do more than one act while through the latter the principal can give powers to his attorney to do only one act.

(e) Sindh Rented Premises Ordinance (XVH of 1979)‑‑‑

‑‑‑‑Ss. 15(2) & 21‑‑‑Special power of attorney ‑‑‑Scope‑‑‑Ejectment of tenant‑‑‑Wilful default in monthly rent‑‑‑Tenant was ordered by the Rent Controller to vacate the premises on ground of default ‑‑‑Ejectment proceedings were contested by Special Attorney on behalf of the tenant‑‑­Special Attorney did more than one act during the proceedings and filed the appeal, signed Vakalatnama and sworn affidavit in support of application on the basis of the same special power of attorney‑‑‑Validity‑‑‑Such appeals were filed by incompetent person and were liable to be dismissed‑‑‑Where counsel of the tenant did not make any submission on such aspect of the matter, such appeal was filed by the person not legally competent to do so and was not maintainable in law‑‑‑No misreading of evidence or misapplication of case‑law having been found, finding of the Rent Controller required no interference.

Habib Bux v. Mst. Bilqees Begum 1995 SCMR 448 fol.

Manzoor Ahmed v. Muhammad Ameeh 1982 SCMR 894(2); Haji Maqbool‑ur‑Rehman Khan v. D.C./Collector, Abbottabad 1991 SCMR 301; Alamdar Hussain.v. Emmanul Victor 1987 SCMR 2240; Muhammad Saleem Qureshi v. Muhammad Mohsin Butt . 1996 CLC 381; Pak Food Manufacturers v. Sadik Ishaque 1992 CLC 482; Munawar Hassan v. Badiul Hassan 1992 CLC 2495 Abdul Malik v. Mrs. Qaiser Jehan 1995 SCMR 204 and Zawar Hussain v. Abid Hussain 1994 MLD 2251 ref.

Zahid Marghoob for Appellants. S.M. Akhtar Rizvi and Arshad Mobin Ahmed for Respondents

Date of hearing: 11th February, 1999

2000 C L C 1177

[Karachi]

Before Muhammad Roshan Essani and S.A. Rabbani, JJ

Messrs INTERNATIONAL FINANCE INVESTMENT AND COMMERCE

BANK LIMITED‑‑‑Petitioner

versus

Messrs UNITED BANK LIMITED and 4 others‑‑‑Respondents

Constitutional Petition No.D‑495 of 1997, decided on 5th October, 1999.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance (XXV of 1997)‑‑‑

‑‑‑‑S. 23‑‑‑Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S. 28‑‑‑Civil Procedure Code (V of 1908), O.XXXVIII, R. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Suit for recovery of loan‑‑‑Attachment of property before judgment‑‑‑Repeal of law‑‑‑Effect‑‑‑Plaintiff‑Bank filed application under O.XXXVIII, R.5. C.P.C. before Banking Tribunal for attachment of properties and securities of defendants before judgment‑‑‑Banking Tribunal ordered attachment of properties and securities of defendants on the date when the Receiving Officer of the Court had ceased to function as Presiding Officer because of the reason that Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997 and Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 had repealed Banking Companies (Recovery of Loans) Ordinance, 1979 and Banking Tribunals Ordinance, 1984 whereby Banking. Tribunal was empowered to function‑‑‑Banking Tribunal having ceased to function after promulgation of repealing Ordinance and the Act, order attaching property and securities of defendants, was declared to be illegal and without lawful authority by High Court.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Repeal or expiry of law‑‑‑Effect‑‑‑Repeal of a law or expiry of an Ordinance, would not revive what the said law had deleted or repealed.

Azizur Rehman for Petitioner. Moinuddin Ahmed for Respondent No. 1. Salim Salam Ansari for Respondents Nos.2 and 3. Nemo for Respondents Nos.4 and 5.

Date of hearing: 23rd September, 1999,

2000 C L C 1182

[Karachi]

Before Dr. Ghous Muhammad, J

KATHIAWAR COOPERATIVE HOUSING SOCIETY LIMITED

through General Secretary‑‑‑Applicant

versus

MACCA MASJID TRUST through

Secretary and 9 others‑‑‑Respondents

Revision Application No'. 168 of 1997, heard on 9th December, 1998

(a) Civil Procedure Code (V of 1908)

‑‑‑‑S. 92‑‑‑Suit against public charities‑‑‑Consent of Advocate‑General‑‑­Requirement‑‑‑Scope‑‑‑No consent was obtained from the Advocate‑General for filing of regular suit‑‑‑Dispute of removal of trustees Lower Appellate Court dismissed suit being not maintainable‑‑‑Validity‑‑‑Trust deed, the subject‑matter of the suit, was for the benefit of "Namazis" in general and ‑as such it was a public trust and the same was covered under S.92, C.P.C.‑‑­Consent of Advocate‑General was condition precedent for filing of suit for seeking various kinds of relief in relation to public charities‑‑‑Where no such consent was obtained, Court had rightly dismissed the suit.

D.F. Mulla's Principles of Mohammadan Law, p.257; PLD 1993 Kar. 605; PLD 1994 Kar. 375; Khadam Hussain and others v. Ata Muhammad 1970 SCMR 127; Ghulam Muhammad v. United Estate Agency for International Development (US A/D) Mission, Islamabad 1986 SCMR 907; Gulzar Hussain v. Abdul Rehman and another 1985 SCMR 301 and Emirates Bank International Ltd. v. Super Drive‑in Ltd. 1990 MLD 53 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 92‑‑‑Public charities‑‑‑Trustee, nature of‑‑‑Not necessary, that the trustee should always be de jure, even de facto and constructive trustees are also covered under S.92, C.P.C.

Mian Jan v. Fakir Muhammad PLD 1960 Kar. 420 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 92‑‑‑Suit against public charities‑‑‑Maintainability Failure to obtain consent of Advocate‑General‑‑‑Effect‑‑‑Where no such consent was obtained, suit was not maintainable.

Abdul Latif A. Shakoor and Talmiz Burney for Appellant.

Shoukat Hussain Zubedi .for Respondents.

Date of hearing: 9th December, 1998.

2000 C L C 1189

[Karachi]

Before Sabihuddin Ahmed

and Ghulam Rabbani, JJ

Miss WARD AH SALMAN‑‑‑Petitioner

versus

GOVERNMENT OF SINDH and 2 others‑‑‑Respondents

Constitutional Petition No.D‑658 of 1999, heard on 30th June, 1999.

(a) Educational institution‑‑‑

‑‑‑‑ Admission to a professional college‑‑‑Domicile Certificate, requirement of‑‑‑Scope‑‑‑Such certificate issued by District Magistrate for enabling a person to be admitted in a professional college against sea reserved for that district/area is altogether different from that required to be issued under the provisions of Pakistan Citizenship Act,

Muhammad Yar Khan v. Deputy Commissioner‑cum‑Political. Agent, Loralai 1980 SCMR 456 ref.

(b) Sindh Permanent Resident Certificates Rules, 1971‑‑‑

‑‑‑‑Rr. 4 & 6‑‑‑"Domicile" and "Permanent residence"‑‑‑Distinction‑‑­Domicile is a question of legal status, a person may well‑qualify to be domiciled at two different countries if he so qualifies under the appropriate rules‑‑‑Permanent residence is a pure question of fact and a person cannot be assumed to be a permanent resident of two different areas.

Shaikh Muhammad Rashid v. Zamigar Qaiser Shaikh PLD 1980 Lah. 61; Mehrunnisa Baloch v. Appellate Committee, Karachi PLD 1978 Kar. 214 ref.

(c) Sindh Permanent Resident Certificates Rules, 1971‑‑

‑‑‑‑Rr. 4 & 6‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Admission in medical college‑‑­Candidates obtained resident certificates to be able to apply for admission in two Provinces (Punjab and Sindli)‑‑‑Selection Board on receiving such information found the candidate disqualified and ineligible for admission‑‑­Validity‑‑‑In view of limited seats available in medical college set up by the Government admission was highly competitive and to ensure that citizens from all areas had reasonable chance, the concerned Authorities had prescribed rules and policies stipulating that resident of one area should only apply from one selection centre, even if the candidate preferred to avail‑a seat in another college on reciprocal basis itself‑‑‑Even if the candidates were permanent residents of Karachi, mere fact that they chose to declare themselves otherwise for securing admission in Punjab was sufficient to disentitle them to claim relief under the equitable jurisdiction conferred upon the High Court by Art. 199 of the Constitution.

Khalid Shaikh v. Principal and Chairman, Academic Council PLD 1987 Kar. 255; Noor Fatima v. Alia Mueed and others PLD 1988 Lah. 437 and Ahmed Hassan v. Abdullah and others PLD 1992 Pesh. 1 ref.

(d) Sindh Permanent Resident Certificates Rules, 1971‑‑‑

‑‑‑‑Rr. 4 & 6‑‑‑Permanent Residents Certificate‑‑Issuance of‑‑­Requirement‑‑‑Such certificate cannot be granted mechanically without any inquiry under R.4 of Sindh Permanent Residents Rules, 1971.

Muhammad Zahid Khan for Petitioner:

Muhammad Sarwar Khan, Addl. A.; G. for Respondents

Date of hearing: 30th June, 1999.

2000 C L C 1196

[Karachi]

Before Dr. Ghous Muhammad, J

. PAKISTAN STATE OIL COMPANY LIMITED

through Attorney‑‑‑Applicant

versus

ABDUL KHALIQUE GANDAKWALA

through Attorney‑‑‑Respondent

First Rent Appeal No.85 of 1991, decided on 12th February, 1999.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 15(2) & 21‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Ejectment of tenant‑‑‑Setting aside of ejectment order on, the basis of fraud‑‑‑Dispute between the parties went up to Supreme Court where the tenant was given one year period to vacate the premises‑‑‑Contention by the occupant was that he was a licensee and had a right to remain in possession of the disputed plot till 13‑2‑1999‑‑‑Supreme Court had passed an order of ejectment and the licence was also revoked‑‑ ‑Applicant did not make any protest and when the period was about to expire, application had been moved‑‑‑Validity‑‑‑Such application was nothing but an abuse of process of the Court‑‑‑Application was dismissed in limine.

Ismail Brothers v. Keval Ram PLD 1981 SC 545; Ch. Jalal Din v. Mst. Asghari Begum and others 1984 SCMR 586 and Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCMR 1908 ref.

Mumtaz Ahmed Shaikh for Applicant Muhammad Ali Syed for Respondent.

2000 C L C 1198

[Karachi]

Before Dr. Ghous Muhammad, J

QUTUBUDDIN‑‑‑Appellant

versus

GHULAM RASOOL through

Legal Heirs‑‑‑Respondent

First Rent Appeal No.682 of 1988, decided on 24th December, 1998.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15(2)(vi)‑‑‑Reconstruction of premises ‑‑‑Proof‑‑‑Lanldord seeking ejectment of tenant on ground of reconstruction of premises had produced copy of plan duly approved/sanctioned by the Competent Authority‑‑­Approval of plan was accorded for one year and after expiry of said period, landlord applied to the Competent Authority for renewal thereof‑‑‑Landlord was asked by Authority to submit consent of tenant, which he could not get due to refusal of tenant‑‑‑Effect‑‑‑Renewal of approved plan of reconstruction being just a formality, it was not necessary for landlord to get the plan sanctioned/renewed every year during pendency of ejectment proceedings‑‑‑Landlord by producing oral as well as documentary, evidence, had proved that he required premises for reconstruction‑‑‑Contention of ‑tenant that landlord had no funds and other resources for reconstruction, was repelled as it was not necessary that landlord should have disclosed source and other details about the funds‑‑‑Very fact that landlord had got plan approved and his commitment to let out premises to tenant after reconstruction according to, law, had fully supported claim of landlord‑‑‑Plea of landlord for ejectment of tenant on ground of reconstruction of premises having fully been established, tenant was rightly ordered to vacate the premises .

Rana Muhammad Shabbir through his Legal Heirs v. Mulrammad Ismail and 3 others 1990 CLC 546: Abdul Rehman v. The State 1998 PCr.LJ 2347: Master Muhammad Rashir v Mcinuddin 1990` ('1.C703; Habib Bux v. Zahoor‑ul‑Hassan 1986 CLC 1119; Messrs Service Industries Ltd: v. Muhammad Marghoob and another 1986 SCMR 637; Syed Abdul Halim v. Ghulam Mohiuddin PLD 1994 SC 52; Hashwani Sales and Service Ltd. v. Karachi Building Control Authority and 15 others PLD 1986 Kar. 393; Naseem Ahmed v. Abdul Razzak 1987 CLC 702; Spectrum Communications Ltd., Karachi v. Mrs. Nasim Bashir 1996 CLC 936; Safdar Butchers v. Khawaja Pervezuddin Butt PLD 1996 Kar. 508; Saeed ,Ahmed Khan v. The Inspecting Assistant Commissioner of Income‑tax (Survey), Hyderabad Range and another 1995 MLD 155 and Rashid Brothers, Faisalabad v. Ch. Muhammad Anwar Khan 1981 SCMR 782 ref.

Khalid M. Said & Co. for Appellant. Muhammad Ishque Shams for Respondent.

Date of hearing: 26th November, 1998.

2000 C L C 1232

[Karachi]

Before Hamid Ali Mirza and Mushir Alam, JJ

GRACE KNITWEAR (PVT.) LTD. ‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Constitutional Petition No.D‑1953 of 1997, decided on 26th September, 1999.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 223,& 224‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Refund of duty drawback‑‑‑Limitation‑‑‑Delay, condonation of‑‑­Claim ‑of refund of duty drawback was declined by the Authority holding same to be time‑barred‑‑‑Federal Government, Central Board of Revenue or appropriate Officer of Customs having been bestowed power under S.224, Customs Act, 1969 to extend time limit prescribed in any of the sections of Customs Act, subject to conditions laid down in the section, delay of thirty ­two days in filing claim for refund of Duty Drawback, could be condoned.

Pakistan through the Secretary, Social Welfare and Local Government Department and another v. Ch. Din Muhammad and others PLD 1964 SC 21 and Pakistan v. Shaikh Abdul Hamid PLD 1961 SC 105 ref.

Amir Malik for Petitioner. S. Tariq Ali, Standing Counsel for Respondents.

Date of hearing: 26th'May, 1999.

2000 C L C 1239

[Karachi]

Before Rasheed Ahmed Razvi, J

Messrs MECHANISED CONTRACTORS OF

PAKISTAN LIMITED‑‑‑Plaintiff

versus

AIRPORT DEVELOPMENT AUTHORITY, KARACHI‑‑‑DEFENDANT

Suit No.513 of 1993, decided on 26th Februaty, 1999.

(a) Arbitration Act (X of 1940)‑‑

‑‑‑Ss. 14(2), 17 & 30‑‑‑Making award rule of Court‑‑‑Power of Court to look into legality or otherwise of award‑‑‑Scope‑‑‑Court while deliberating upon award under S.14(2), Arbitration Act, 1940, was competent to look into legality or otherwise of award even in absence of any objection being requirement of Ss. 17 & 30 of the Act.

Messrs Awan Industries Ltd. v. The Executive .Engineer, Lined Channel Division 1992 SCMR 65 and Muhammad Tayab v. Akbar Hussain 1995 SCMR 73 ref.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14, 16(3) & 26‑A‑‑‑Making award rule of Court‑‑‑Delay in filing award ‑‑‑Condonation‑‑‑Arbitrator filed award after delay of two and a half months without any explanation for the delay‑‑‑Award, in circumstances, would be treated to be void and could not be made rule of Court.

Messrs Qamaruddin Ahmad & Co. v. Government of Pakistan 1985 SCMR 1775 ref.

Naeemur Rehman for Plaintiff. Saeed A. Sheikh for Defendant

Date of hearing: 11th February, 1999

2000 C L C 1244

[Karachi]

Before Mrs. Majida Razvi, J

NATIONAL INSURANCE CORPORATION

through Chairman‑‑‑Applicant

versus

MUHAMMAD SADIQ‑‑‑Respondent

Revision Application No. 191 of 1992, heard on 12th January, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revision‑‑‑Scope‑‑‑Revision under S.115, C. P. C. could be filed only for purpose of correction of any jurisdictional error which might crept in the order/ judgment of Court below viz. wherein said Court had assumed jurisdiction not so vested in it by law or had failed to exercise jurisdiction so vested or if any material irregularity had been committed in exercise of its jurisdiction.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 115 & 100‑‑‑Revisional jurisdiction‑‑‑Scope‑‑‑Concurrent findings of fact of two Courts below could not be disturbed by High Court in second civil appeal muchless in exercise of revisional jurisdiction under 5.115, C.P.C. unless two Courts below while recording finding of fact had either misread evidence or had ignored any material piece of evidence on record or finding of fact recorded by two Courts below was perverse‑‑‑Jurisdiction of High Court to interfere with concurrent finding of fact in revisional jurisdiction under S.115, C.P.C. being narrow, High Court in exercise of said jurisdiction could only interfere with order of subordinate Courts on grounds; that Court below had assumed jurisdiction which did not vest in it or had failed to exercise jurisdiction vested in it by law or that Court below had acted with material irregularity affecting its iurisdiction in case.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 and Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88 ref.

Mahmoodul Hassan for Applicant. Abid S. Zuberi for Respondent.

Dates of hearing: l lth and 12th January, 1999.

2000 C L C: 1252

[Karachi]

Before Sabihuddin Ahmed, J

MUHAMMAD YOUSUF‑‑Appellant

versus

Mrs. NOOR JEHAN BI through

Attorney‑‑‑Respondent

First Rent Appeal No.384 of 1994, heard on 2nd September, 1999. , (a) Cantonments Rent Restriction Act (XI of 19631‑‑‑

‑‑‑‑S. 17(4)(a)(b)‑‑‑Bona fide personal need of landlord ‑‑‑Ejectment of tenant from commercial premises on ground of personal requirement of spouse and children‑‑‑Validity‑‑‑Landlord under Cantonments Rent Restriction Act, 1963, could seek ejectment of tenant from residential building if same was required in good faith by landlord/landlady for his/her own occupation or for occupation of any member of his/her family, but position with commercial premises, would be different‑‑‑Need of spouse, children of landlord/landlady or any other person in respect of commercial premises was irrelevant and it had to be shown that the premises was required by landhord/landlady for his/her own use.

Ghayoor Alam v. Muhammad Jameel 1983 CLC 1274; Nek Muhammad v. Hafiz Abdul Hameed 1989 CLC 732; Ghulam Mohiuddin v Nazir Bibi and others 1983 SCMR 715 and Muhammad Zaman , v.. Hasbunnisa 1991 SCMR 1307 ref.

(b) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑.. 17(4)(b)‑‑‑Ejectment of tenant from commercial premises to start business jointly with family member‑‑‑Validity‑‑‑If a landlord/landlady intended to start business in commercial premises after ejecting tenant jointly with a family member or even an outsider her bona fides could not be doubted.

(c) Muhammadan Law‑‑‑

‑‑‑‑Ownership‑‑‑Independent property rights of husband and wife and concept of joint ownership‑‑‑Muslim law recognised independent property rights of husband and wife and concept of joint ownership on account of marriage does not exist

(d) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17(4)(a)(b)‑‑‑Ejectment of tenant from "residential" and "commercial premises"‑‑‑Distinction‑‑‑Statute having made specified distinction, enabling ejectment of tenant from a residential premises on ground of need of any family member, but restricting said right to eject in case of commercial premises only in event of need of landlord himself, Court could not stretch its meaning to defeat legislative intent.

Abdul Rashid for Appellant. . S.M. Akhtar Rizvi for Respondent.

Date of hearing: 2nd September, 1999.

2000 C L C 1260

[Karachi]

Before Saiyed Saeed Ashhad, J

Khawaja SHAUKAT HASSAN. ‑Appellant

versus

Messrs AL‑NOOR EDUCATION SOCIETY ‑Respondent

First Rent Appeal No. 194 of 1999, decided on 14th September, 1999

Sindh Rented Premises Ordinance (XVII of 19791

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord ‑‑‑Ejectment application‑‑‑Maintainability‑‑‑Tenant, during pendency of ejectment application filed by landlord on ground of personal bona fide need of his son had raised monthly rent of premises and sent cheque to the landlord for rent of next twelve months in advance‑‑‑Landlord accepting said advance rent agreed to continuation of tenancy for period of twelve months‑‑‑Extended period of tenancy having not expired, ejectment application which had ceased to be maintainable ought to have been dismissed on that sole ground.

Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185 and Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Ltd. PLD 1984 SC 38 ref.

Nadeem Azhar Siddiqui for Appellant. Ghulatri Abbas Pishori for Respondent.

Date of hearing; 14th September, 1999.

2000 C L C 1276

[Karachi]

Before Muhammad Roshan Essani, J

Pirjee MUHAMMAD NAQI‑‑‑Appellant

versus

Messrs PAKISTAN STATE OIL CO. ‑‑‑Respondent

First Rent Appeal No.31 of 1989, decided on 8th June, 1999.

(a) Sindh Rented Premises Ordinance (XVH of 1979)‑‑‑

‑‑‑‑Ss. 15(2(vii) & 18‑‑‑Change in ownership‑‑‑Default in payment of rent after receipt of notice of change of ownership of the premises‑‑‑Original owner of premises in dispute having died, legal representatives of deceased owner who had become owners after, death of their predecessor, informed tenant of the change of ownership as required under S.18, Sindh Rented Premises Ordinance, 1979‑‑‑Tenant, who after receiving notice had become tenant under legal heirs of deceased, was under legal obligation to pay rent to them, but he had failed to do so‑‑‑Tenant, in circumstances, had committed wilful default and was liable to be ejected on that ground.

Arshad Me hmood Siddiqui v. Muhammad Haroon 1992 MLD 810; Habib Bux v. Mst. Bilquis Begum and others 1995 SCMR 448; Province of Sindh and '3 others v. Agha Sikandar Ali Khan 1990 CLC 1644; Pakistan Art Emporium Shop No.C‑6 v. Palace Hotel, Karachi 1989 CLC 34; Nisar Ahmed and another v. Sharafullah PLD 1996 Kar. 136; Mst. Hashmi Begurrt v. Mst. Alya Zohra Begum 1985 MLD 1514; Sarwar Abbas v. Mst. Hajra ttai and others 1983 CLC 337; PLD 1976 Kar. 169; Dr. Aftab Ahmad Khan v. Mst. Zaibun Nisa 1998 SCMR 2085; Noor Muhammad and another v. Mehdi PLD 1991 SC 711; Mst. Latifa Khanum and others v. Syed Zahnoorul Hassan 1984 CLC 1009; Muhammad Ilyas v. Qamaruddin 1984 CLC 757: National Bank of Pakistan v. Wadhu Mal 1985 CLC .1053; Syed Jalilur Rehman etc. v. Messrs Johar Trading Company 1982 CLC 219; Masjid‑e‑Humra v. Zamir Ahmed 1982 CLC 2193; Mirza Jawad Baig v. Pakistan State Oil Co. Ltd. 1985 MLD 536 and.Karimjee v Messrs Lakhani Steel Corporation C.P.S.L.A. No.97‑K of 1989 ref..

(b) Discretion‑‑‑

‑‑‑‑ Discretion must be‑ exercised by Courts judiciously and not arbitrarily or capriciously‑‑‑Courts had to act and work within parameters prescribed by law and any departure from same would tantamount to exercise of discretion arbitrarily which was not permitted/warranted by law‑‑‑Such rule was meant to safeguard legal rights of parties so that Authorities vested with discretion should not make misuse thereof and transgress limits prescribed by law‑‑­While deciding appeal, revision etc. superior Courts were. competent to examine exercise of discretionary powers by subordinate Courts and upon examination of material placed before the superior Courts, if they found that discretion was exercised illegally or capriciously, they could strike down the order impugned before them.

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 5 & 6‑‑‑Lease agreement for fixed period ‑‑‑Expiry of such period‑‑­Non‑renewal of agreement‑‑‑Effect‑‑‑Term of ten years of tenancy agreement, having expired, landlord refused to execute fresh tenancy agreement and tenant had not initiated any proceedings before competent Court for renewal of fresh tenancy agreement‑‑‑No fresh agreement having been executed by parties after the expiry of term of tenancy agreement, tenant would become statutory tenant‑‑‑Tenancy which had ended on a particular date. could rerhain in force only if parties would enter into a fresh agreement to keep lease in force.

Muhammad Yousuf v. Abdullah PLD 1980 SC 298 and Muhammad Ryas v. Qamaruddin 1984 CLC 757 ref.

(d) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 10‑‑‑Tender of rent through cheque‑‑‑Validity‑‑‑Tender of. rent through cheque was not valid tender of rent.

Zulfiqar Hussain v. Mrs. Tazeen Chaudhry 1986 CLC 393 ref.

K.M. Nadeem for Appellant. Usman Ghani Rashid and Muhammad Anis for Respondent.

Dates of hearing: 9th, 17th March; 7th, 15th, 19th April; 3rd and 17th May, 1999.

2000 C L C 1301

[Karachi]

Before Rasheed Ahmed Razvi,. J

Messrs EAST ASIA TEXTILE INDUSTRIES LTD..

through Director‑‑‑Appellant

versus

Mrs. SAMEERA HUMAYUN MATIN‑‑‑Respondent

First Rent Appeal No.586 of 1998, decided on 9th August, 1999.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15(2)(ii)‑‑‑Default in payment of rent and water and conservancy charges‑‑‑Tenant contended that established practice of paying rent of premises in lump sum was never objected to by the landlady‑‑‑Burden was upon tenant to prove that landlady had voluntarily agreed for receiving rent periodically in lump sum, but tenant had failed to prove the same by whatever evidence‑‑‑Landlady had proved that tenant had failed to tender agreed water charges and conservating charges‑‑‑Tenant, who had committed wilful ‑and deliberate default in payment of rent as well as payment of conservancy arid water charges,, was rightly ordered to be ejected from premises in circumstances.

Mst. Zohra Bai and another v. Messrs Standard Industries Ltd. PLD 1994 Kar. 209; Tahir Ali Bhai v. Mrs. Naz Parwar 1997 MLD 2283; Masroor Hasan and another v. Abbas Ali Khan 1981 CLC 669; Ghulam Muhammad and another v: Haji Muhammad Jamil 1982 CLC 1042; Malik Abdul Jalil v. Mst. Bargees 1987 CLC 405; Matiullah Khan v. Syed Afroz Ali NLR 1991 AC 514; Mst. Tayyaba Begum v. Taqi Haider 1994 SCMR 1913 and Amir Ali and others v. Messrs Burma Oil Mills Ltd. 1990 SCMR 1327 ref.

Abdul Karim Khan for Appellant. Moin Azhar for Respondent.

Dates of. hearing: 28th, 31st May and 4th June, 1999

2000 C L C 1328

[Karachi]

Before Wahid Bux Brohi, J

Mrs. FARIDA HANIF MOTIWALA‑‑‑Appellant

versus

QAIS MANSOOR SHEIKH‑‑‑Respondent

Execution Application No. 18 and Civil Miscellaneous Application No.699 of 2000, decided on 27th March, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 151 & O.XX, R.11(2)‑‑‑Payment of decretal amount in instalments‑‑­Application by judgment‑debtor that he be allowed to pay‑off decretal amount in instalments‑‑‑Validity‑‑‑Payment of decretal amount could be allowed to be made in instalments only with consent of decree‑holder as provided under O.XX, R.11(2), C.P.C.‑‑‑Decree‑holder could not be compelled by Court to accept payment of decretal amount in instalments‑‑­Decree‑holder having not agreed to grant of‑payment by instalments, power under S,151, C.P.C. could not be exercised in favour of judgment‑debtor.

Mehar Sultan Jung v. Qurban Hussain 1972 SCMR 73 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 51 & O. XXI, Rr.37, 38, 40‑‑‑Execution of decree‑‑‑Mode of=‑‑Mere arrest of judgment‑debtor would not be the only effective mode of execution of decree, but entire procedure prescribed under provisions of S.51, C.P.C. read with O.XXI, Rr.37, 38 & 40, C.P.C. would be followed‑‑‑Mere notice of execution application would not satisfy requirements of a show‑cause notice contemplated under R.37(1) of O.XXI, C.P.C., but judgment‑debtor should expressly be called upon to show cause why he should not be detained in prison.

Shah Nawaz Awan with Azhar Said Khan for the Decree‑Holder. Iqbal Asim for the judgment‑Debtor.

2000 C L C 1342

[Karachi] .

Before Ata‑ur‑Rehman, J

NASEER AHMAD SHAIKH‑through Attorney‑‑‑Plaintiff

versus

Lt.‑Col. MUNAWAR HUSSAIN SHAH‑‑‑Defendant

Suit No.957 of 1998 and Civil Miscellaneous Application No.3868 of 1999, heard on 12th November, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 11 & O. VII, R.11‑‑‑Specific Relief Act (I of 1877), Ss. 12 & 54‑‑‑Suit for specific performance and permanent injunction‑‑‑Rejection of plaint‑‑­Plaint was sought to be rejected on ground that plaintiff had earlier filed suit in respect of same subject‑matter and same cause of action‑‑‑Validity‑‑‑Suit earlier filed was withdrawn by plaintiff though without seeking any permission to file fresh suit‑‑‑Fresh suit already instituted and pending at the time of withdrawal of earlier suit was not barred‑‑‑Application for rejection of plaint in the fresh suit, was dismissed being not maintainable.

Muhammad Latif v. Muhammad Iqbal 1996. CLC 1672; Akbar Ali Malik v. Chairman, A.K.M.I.D.C. Jalalabad Colony, Muzaffarabad and another 1999 MLD 236; Mst. Bashiran Bibi and others v. Hidayatullah and others 1996 SCMR 1051; Ejaz Ali Siddiqui. v. Irshad Ahmed 1998 CLC 1973; Muhammad Iqbal v. Mukhtar Hussain 1996 SCMR 1047; Allah Bakhsh v. Abdul Waheed PLD 1996 Kar. 458; Muhammad Latif v. Muhammad Iqbal 1996 CLC 1672; Luqman Shah v. District Judge, Haripur 1997 CLC 27; National Bank of Pakistan v. Hashim Khan 1995 CLC 88; Pardool v. Gulzada PLD 1995 SC 410; Razzak v. Tallat 1995 CLC 57; Muhammad Yousuf Memon v. Karachi Stock Exchange 1995 CLC 183; Ejaz Hussain v. Abbas Ali 1993 CLC 2478; Shaheen Hassan v. Grindlays Bank, PIC 1992 MLD 1972; Asghar Ali v. P.K. Shahni 1992 CLC 2282; Allah Dad v. Mehmood Shah 1991 SCMR 418; Nazima Begum v. Hasina Begum 1991 SCMR 177; Sarwary Begum v. Muhammad Tufail 1991 MLD 2131; Muhammad Khan v. Arshad Jamil 1987 MLD 671; Muhammad Saifullah Khan v. Federation of Pakistan 1989 SCMR 22; Nazima Begum v. Hasina Begum 1989 SCMR 498; Nazeera Begum v. Hosina Begum 1989 MLD 4533; Abdul Shakoor v. Abdul Aziz 1996 MLD 1448; Hoosain Bux v. Dur Muhammad PLD 1963 Kar. 696 and Ghulam Nabi v. Muhammad Yaqoob PLD 1983 SC 344 ref.

Mrs. Tabasum Ghazanfar for Plaintiff. M.M. Tariq for Defendant. Ziaul Haq Makhdoom: Amicus curiae.

2000 C L C 1425

[Karachi]

Before S.A. Sarwana, J

HABIB BANK LIMITED‑‑‑Decree‑Holder

versus

Messrs AJMA CORPORATION and others‑‑‑Judgment‑Debtors

Execution Application No.106, Civil Miscellaneous Application Nos.2232 and 2234 of 1999, Suits Nos.2032 of 1995 (Old) and 844 of 1998 (New), decided on 31 st December, 1999.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 18‑‑‑Civil Procedure Code (V of 1908), S.51‑‑‑Execution of decree‑‑­Powers of Executing Court‑‑‑Property documents produced by judgment ­debtor during trial, whether to create a mortgage‑‑‑Documents produced by the judgment‑debtor could not be considered at the execution stage‑‑­Executing Court could not go behind the decree.

1989 SCMR 640; 1971 SCMR 594; PLD 1960 Kar. 946 and PLD 1978 Kar. 205 ref.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

'‑‑‑‑S. 18‑‑‑Civil Procedure Code (V of 1908), O.XXI, R.58‑‑‑Execution of decree‑‑‑Investigation of claim to attach property and objections to attachment of property‑‑‑Scope‑‑‑Executing Court under the provisions of O.XXI, R.58, C.P.C. is competent to examine objections to execution of a decree, where the claim or objection has not been designedly or unnecessarily delayed the execution proceedings‑‑‑Objector, during such proceedings has to prove that he has acquired the title in good faith and for consideration and that his predecessors‑in‑interest have not fraudulently omitted to make a claim or objection.

(c) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 18‑‑‑Transfer of Property Act (IV of 1882), S.52‑‑‑Execution of decree‑‑‑ Transferring of mortgaged property during pendency of suit for recovery of Bank loan‑‑‑Objection to attachment of such property‑‑­Validity‑‑‑Judgment‑debtor was the owner of the property which was clearly specified in the plaint as mortgaged property‑‑‑Decree‑holder was claiming an interest and right as a mortgagee over the property‑‑‑Property in view of the bar contained in S.52 of Transfer of Property Act, 1882 could not be validly transferred during the pendency of proceedings‑‑‑Documents filed by the objector did not show that the property was acquired in good faith for, consideration‑‑‑Where the transfer was collusive and was made to deprive the decree‑holder from recovery of their lawful dues, the objections were dismissed.

PLD 1969 Kar. 123 and 1985 CLC 391 distinguished.

AIR 1947 Mad. 347; AIR 1939 Pat. 532; Asghar Ali alias Sajid v. Fazal Karim 1989 SCMR 1781; Karam Elahi v. The Settlement Commissioner 1976 SCMR 143; Messrs Aman Enterprises v. Messrs Rahim Industries PLD 1993 SC 292 and Ardeshir Cowasjee v. K.B.C.A. 1999 SCMR 2883 ref.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 18‑‑‑Transfer of Property Act (IV of 1882), S.52‑‑‑Recovery of Bank loan‑‑‑Execution , of decree‑‑‑Mortgaged property transferred during pendency of suit‑‑‑Validity‑‑‑Held, if such practice was allowed, all Bank borrowers would transfer their mortgaged properties to third parties. with impunity to deprive the mortgagees of the benefit of the mortgaged security.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXI, R. 22(2)‑‑‑Execution without notice‑‑‑Objector not a party to original proceedings‑‑‑Execution proceedings started within a period of one year‑‑‑Contention by objector was that no notice was issued to him‑‑­Validity‑‑‑Where the Executing Court considered that issue of notice would cause unreasonable delay, under O.XXI, R.22(2), C.P.C. the Court was empowered to order execution without notice‑‑‑Objector who was neither a party to the original proceedings nor he had given any notice to the decree­ holder that the property had been transferred to him, such objector was not entitled to any notice in circumstances.

(f) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Preamble‑‑‑Application of Civil Procedure Code, 1908‑‑‑Special Law vis­a‑vis General Law‑‑‑Prevalence‑‑‑Act XV of 1997 was a special statute and the provisions of Special Law prevailed over general provision of C.P.C.

(g) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 18(1)‑‑‑Civil Procedure Code .(V of 1908), Preamble‑‑‑Execution of decrees‑‑‑Provisions of Civil Procedure Code, 1908‑‑‑Applicability‑‑­Applicution of provisions of C.P.C. is not mandatory but only directory and Executing Court has been given the discretion to execute the decree in accordance with the provisions of C.P.C. or in any other manner it may deem fit.

(h) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 39‑‑‑Expression "may" used in S.39, C.P.C.‑‑‑Effect‑‑‑Use of word "may" has made the provisions of S.39, C.P.C. as directory and not mandatory in nature.

(i) Banking Companies (Recovery of _ Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑S. 18‑‑‑Civil Procedure Code (V of 1908), O.XXI, R.22(2)‑‑‑Execution without notice to judgment‑debtor‑‑‑Validity‑=‑Judgment‑debtor was a party to the suit which was decided against her and she knew that her property would be sold in execution‑‑‑Where execution application was filed within one year of : rising of decree, no further notice was necessary in circumstances.

(j) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 18(5) Selling of mortgaged property‑‑‑Purchase of such property by judgment‑debtor‑‑‑Scope‑‑‑Bank has to give an opportunity to the judgment­debtor to purchase the property at a matching price within 30 days of such notice to him before concluding sale of the property.

(k) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 60(1)(c)‑‑‑Property not liable to attachment and sale, in execution of decree‑‑‑Provision of S.60(1)(c), C.P.C.‑‑‑Applicability‑‑‑Judgment‑debtor to qualify for exemption given in S.60(1)(c), C.P.C. must show that he/she is an agriculturist and is occupying the house in connection with his/her agricultural occupation‑‑‑Such house should be situated in agricultural area and must necessarily be connected with 'the use and enjoyment of the agricultural land.

Syed Mazhar‑ul‑Haq for the Decree‑Holder S. Abid Zuberi for the Judgment‑Debtor No.2. Nadeem Azhar for the Objector/Applicant.

2000 C L C 1438

[Karachi]

Before Syed Deedar Hussain Shah

and Anwar Zaheer Jamali, JJ

UNITED BANK LIMITED‑‑‑Appellant

versus

Messrs A.Z. HASHMI (PVT.) LIMITED

and 8 others‑‑‑Respondents

First Appeal No.44 of 1999, decided on 7th October, 1999.

Banking Companies (Recovery of Loans, Advances, Credits and finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 18‑‑‑Civil Procedure Code (V of 1908), O.XXI, R.92‑‑‑Executing proceedings‑‑‑Sale through auction‑‑‑Purchase of mortgaged property through auction‑‑‑Decree‑holder filed an application for withholding auction proceedings on the ground that judgment‑debtor was ready to pay more price of the mortgaged property than the auction‑purchase‑‑‑Such application was filed after the completion of auction proceedings and deposit of full auction price by the auction‑purchaser‑‑‑Validity‑‑‑Once the mortgaged properties had been lawfully punched by the highest bidders and they had fulfilled all other legal formalities regarding payment of purchase price etc. proceedings of such sale transaction could neither be withheld nor could be disturbed merely to accommodate the decree‑holder and the judgment‑debtor to negotiate for a settlement in the matter‑‑‑No allegation of any malpractice, irregularity or fraud in the process of auction conducted by Trial Court was levelled‑‑‑Even the judgment‑debtors had not come forward to question the legality of such auction proceedings‑‑‑Where full bid money was paid and sale was confirmed, the auction‑purchaser had acquired valuable rights in the property and the same could not be disturbed‑‑‑Such application filed by decree‑holder was rightly dismissed by the Trial Court .

Messrs Dawood Flour Mills and others v. National Bank of Pakistan 1999 MLD 3205 and Hudaybia Textile Mills Ltd. and another v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512 ref.

Aijaz Ahmed for Appellant. Nemo for Respondents Nos. l to 5. Respondent No. 8 in person. Akhtar Hussain for Respondent No.9.

Date of hearing: 5th October, 1999.

2000 C L C 1455

[Karachi]

Before Rasheed Ahmed Razvi, J

QATAR AIRWAYS PLC‑‑‑Plaintiff

versus

ANZ GRINDLAYS BANK‑‑‑Defendant

Suit No.585 and Civil Miscellaneous Application No.5230 of 1999, decided on 24th December; 1999.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 10‑‑‑Civil Procedure Code (V of 1908), O. VI, Rr.15 & 16‑‑‑Leave to defend the suit‑‑‑Expression "a serious and bona fide dispute" in S.10, Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Applicability‑‑‑Suit filed without verification‑‑‑Plaintiff refilled the suit with permission of Banking Court after due verification‑‑‑Contention by defendant was that since the suit was not properly filed, leave to defend the suit was to be granted unconditionally‑‑‑Validity‑‑‑Such was not sufficient to bring the case within the phrase "a serious and bona fide dispute" as appeared in S.10 of Banking Companies (Recovery of Loans Advances, Credits and Finances) Act, 1997‑‑‑Non‑compliance of the provisions of O.VI, Rr.15 & 16, C.P.C. was a mere technicality and could be cured even at a later stage‑‑‑Leave to defend the suit was refused in circumstances.

Bankers Equity Ltd. and 5 others v. Sunflo CIT RUSS Ltd. PLD 1999 Lah. 450 distinguished.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VI, Rr.15 & 16‑‑‑Non‑compliance of Rr.15 & 16 of O.VI, C.P.C. was a mere technicality and same could be cured at a later stage.

(c) Banker and customer‑‑‑

‑‑‑‑ Services extended by Commercial Banks to its customers‑‑‑Commercial Banks extend many services for their customers such as undertaking safe custody of valuables, act as executors or attestees, advising customers of financial matters, arranging amalgamation and reconstruction of companies in addition to issuance of national and international travellers cheques and credit cards facilities.

Shams Textile Mills Ltd., Lahore v. Federation of Pakistan and others PLD 1982 Kar. 513 and The Bank of Chettinad Ltd. of Colombo v. The Commissioner of Income‑tax, Colombo PLD 1948 PC 107 ref. .

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑ '

‑‑‑‑S. 9‑‑‑Civil suit based on commitments/obligations of a Commercial Bank arising out of a Bank guarantee‑‑‑Validity‑‑‑Such suit falls within the scope of S.9 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and is maintainable in law.

(e) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV. of 1997)‑‑‑

‑‑‑‑S. 2(e)‑‑‑"Finance"‑‑‑Definition‑‑‑Term "finance" includes Bank guarantee etc.‑‑‑Scope‑‑‑Definition of finance is so exhaustive that it includes Bank guarantees, no matter in which form they are issued, including performance bonds and mobilization advance bond.

(f) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 2(d) & 2(e)‑‑‑Terms "customer" and "finance"‑‑‑Connotation‑‑‑Such terms are so wide and comprehensive that they include nearly all business transactions of modern banking system.

(g) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 2(d) & 9‑‑‑Refusal to encash Bank guarantees‑‑‑Suit against Bank‑‑­Banking Court‑‑‑Maintainability‑‑‑Where Bank guarantee was duly executed by the Bank in favour of the plaintiff, who was real beneficiary of such finance, such plaintiff was a customer‑‑‑Suit filed by such customer was maintainable in the Banking Court .

(h) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 9 & 10‑‑‑Application for leave to defend the suit‑‑‑Suit was filed against the Bank as the Bank refused to encash Bank guarantees‑‑‑Jurisdiction of Banking Court‑‑‑Scope‑‑=Plaintiff was customer of the defendant‑Bank and the Bank guarantees were part of finance, therefore, the same fell within the scope of S.9 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Defendant‑Bank failed to make out a serious and bona fide dispute as the transaction was admitted and only technical objections were raised qua maintainability of the suit‑‑‑Application for leave to defend the suit was dismissed‑‑‑Suit was decreed accordingly.

Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1991 SC 550; H.M. Ebrahim Sait v. South India Industrials Ltd. AIR 1938 Mad. 962; 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; Messrs Banque Indosuez (Bangque Del Indochine Et De Suez) v. Syed Muhammad Sabir and others 1992' CLC 1641; Nasimuddin Siddiqui and another v. United Bank Limited and others 1998 CLC 1718; Haral Textiles Limited v. Bank Indosuez Belgium, S.A. and others 1999 SCMR 590; Sirafi Trading Establishment v. Trading Corporation of Pakistan Ltd. 1984 CLC 381 and United Bank Ltd. v. Messrs Adamjee Insurance Co. and 2 others 1988 CLC 1660 ref.

(i) Words and phrases‑‑‑

‑‑‑‑"Finance"‑‑‑Definition‑‑‑Term "Finance" includes Bank guarantee etc.‑‑­Scope‑‑‑Definition of finance is so exhaustive that it includes Bank guarantees, no matter in which form they are issued, including performance bonds and mobilization advance bond,

Zahid F. Ibrahim for Plaintiff. Ijaz Ahmed for Defendant.

2000 C L C 1497

[Karachi]

Before Hamid Ali Mirza and S.A. Rabhani, JJ

ABID HUSSAIN ‑‑‑Petitioner

versus

BOARD OF TRUSTEES ABANDONED PROPERTIES‑‑‑Respondent

Constitutional Petition No.D‑1841 of 1996, decided on 7th December, 1999

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of Factual controversies‑‑‑Petitioner sought declaration of Court to confirm genuineness and existence of sale agreement, payment of consideration and entitlement to transfer of property‑‑‑Such questions could not be determined in Constitutional petition‑‑‑Remedy for such matters was civil suit, where such issues may be decided on the basis of evidence‑‑‑Constitutional petition was not maintainable in circumstance.

(b) Abandoned Properties (Taking Over and Management) Act (XX of 1975)‑‑‑

‑‑‑‑S 13‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Abandoned properties‑‑‑Jurisdiction of Administrator ‑‑‑Disputed property was declared as an abandoned property whereas the petitioner claimed to be a bona fide purchaser of such property for consideration prior to such declaration‑‑‑Petitioner assailed the order declaring such property as abandoned property, before the Administrator on the basis of a purchase receipt‑‑‑Administrator instead of confining himself to the receipt, had tried to decide the right or interest or its legality‑‑‑Validity‑‑‑Such questions could only be determined by the Civil Court and the Administrator under S.13 of Abandoned Properties (Taking Over and Management) Act, 1975 had only to confirm that the creation or transfer of any right or interest in the abandoned property was in good faith and for adequate consideration‑‑‑Irrelevant for the purpose of Authorities whether the alleged receipt was a sale agreement or an acknowledgement of a complete sale transaction‑‑‑If the receipt was genuine, the same created some interest or right in favour of the petitioner and if the transfer was not legally complete, the confirmation could have been made subject to appropriate conditions, under the same provision of law‑‑­Provisions of S.13 of Abandoned Properties (Taking Over and Management) Act, 1975, did not provide that a complete transfer of title could only be confirmed‑‑‑Where the Administrator travelled beyond his jurisdiction, such order passed by him was not maintainable and the same was set aside accordingly.

Muneer Malik for Petitioner. Hisamuddin for Respondents.

2000 C L C 1502

[Karachi]

Before S. Ahmed Sarwana, J

HABIB BANK LTD. ‑‑‑Plaintiff

versus

SARMAST COOKING OIL LTD. and others‑‑‑Defendants

Suit No.846 of 199.8, decided on 31st December, 1999.

(a) Islamic Jurisprudence‑‑‑

‑‑‑‑ Banking‑‑‑Banks are not permitted to charge mark‑up on mark‑up under the non‑interest banking system of finance.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 62‑‑‑Novation of contract‑‑‑Scope‑‑‑Where the parties to a contract agree to substitute a new contract for the old one or to rescind or alter the same, the original contract need not be performed.

(c) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Contract Act (IX of 1872), S.62‑‑‑Suit for recovery of Bank loan ‑‑‑Novation of contract‑‑‑Agreement was a novation of old contract, the consideration of which was the agreement of Bank to extend time for payment of outstanding liabilities of the borrower‑‑‑Validity‑‑‑Such agreement being valid and legal, was binding upon the parties‑‑‑Rate of interest was not denied by borrower‑‑‑Such was decreed against the defendants severally and jointly in circumstances.

Banque Indosuez v. Banking Tribunal 1994 CLC 2272; National Bank. of Pakistan v. Punjab Building Company PLD 1998 SC 302 and United Bank Limited v. Chaudhary Ghulam Hussain 1998 CLC 816 ref.

(d) Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑S. 83‑B‑‑‑Every Officer of company is entrusted with the property belonging to the company‑‑‑Where such officer fails to exercise such degree of care as a reasonable person might be expected to take of his property in the circumstances and the company in consequence of such failure suffers loss, such officer is liable to the company for loss arising from his negligence.

(e) Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑S. 33‑B‑‑‑Prudential Regulations, Reglns. III & XVIII‑‑‑Responsibilities of Batik Officer‑‑‑Where an Officer of a Bank, who is responsible for disbursement of loans, acts negligently or omits to take the reasonable degree of care in extending a loan 'or credit facilities as required by the Prudential Regulations and under normal international banking practice and consequently the Bank suffers loss, the Bank is justified in suing such an officer for recovery of loss suffered by the Bank.

(f) Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑S. 33‑B‑‑‑Criminal breach of trust‑‑‑Bank Officer, when acts negligently or does not exercise the degree of care and caution expected of a prudent Banker, such officer of Bank is guilty of criminal breach of trust.

A.R. Akhtar for Plaintiff. Abid S. Zuberi for Defendants.

Dates of hearing: 5th March; 29th April and 3rd December, 1999.

2000 C L C 1510

[Karachi]'

Before Nazim Hussain Siddiqui, C. J.

and Ghulam Rabbani, J

S.I. T. E. ‑‑‑Appellant

versus

MUHAMMAD WAQAR MANOO‑‑‑Respondent

High Court Appeal No.99 of 1997 and Application No.1095 of 1998, decided on 28th October, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑‑Specific performance of agreement‑‑‑Plaintiff filed a suit .that the defendants entered into an agreement for purchase of his land against a consideration and after making part payment through cheque, failed to complete the transaction Such suit was decreed ‑‑‑ Validity‑‑Execution of agreement, amount of consideration and mode of payment was admitted by the defendant and as such never had any objection regarding any terms and conditions of the agreement---- judgment and decrees, therefore, had been rightly passed in favour of the plaintiff‑‑‑Appeal being without merit was dismissed in limine.

Province of East Pakistan v. Mia Muhammad Hossain PLD 1965 SC 14; Messrs Ch. Brothers Ltd., Sialkot v. Jaranwala Central Cooperative Bank Ltd. 1968 SCMR 804; Halsbury's Laws of England, Vo1.44, p.3302, para.435 and May & Butcher Ltd. v. Regem All ELR p.684 ref.

S.A. Samad Khan for Appellant. ‑

Afsar Ali Abdi for Respondent. ', Dates of hearing: 27th January and 2nd February, 1999. ‑.

2000 C L C 1524

[Karachi]

Before Shabbir Ahmed, J

Messrs SINDH ENGINEERING (PVT.) LTD.

through Managing Director‑‑‑Plaintiff

versus

OTIS ELEVATOR COMPANY and 3 others‑‑‑Defendants

Suit No. 1099 of 1998, decided on 24th March, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VII, R.11‑‑‑Rejection of plaint‑‑‑Object‑‑‑Under the provisions of O. VII, R.11, C.P.C. the principles involved are two‑folds; in the first place the provision contemplates that still born suit should be properly buried at its inception, secondly, it gives plaintiff a chance to retrace his steps at the earliest possible moment, so that if permissible under the law, the plaintiff may file a properly constituted suit.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXIII, R.1‑‑‑Unconditional withdrawal of suit‑‑‑Effect‑‑‑Where a suit is withdrawn by a party under O.XXIII, R.1(1), C.P.C. unconditionally, such party is precluded from bringing a fresh suit under O.XXIII, R.1(3), C.P.C. on the same cause of action.

Abdul Rasheed Saudagar v. S.M. Lalita Rai PLD 1959 SC 287; Mir Zaman v. Mst. Magum Jan PLD '1983 Pesh. 100; Abdul Karim Butt v. Government of Balochistan 1989 CLC 1625 and Bashiran Bibi v. Hidaytullah 1996 SCMR 1051 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0.11, R.2, O.Vll, RAI & O.XXIII, R.1‑‑‑Rejection of plaint‑‑­Unconditional withdrawal of earlier suit‑‑‑Second suit on same cause of action‑‑‑Validity‑‑‑Where earlier suit was withdrawn unconditionally under the provision of O.XXIII, R. 1(1), C.P.C., the plaintiff was precluded from instituting fresh suit on the same cause of action under O.XXIII, R.1(3), C.P.C.‑‑‑Such subsequent suit was barred under O.XXHI, R.1(3) & O.Il, R.2, C:P.C. and the plaint was liable to be rejected under O.VII, R.11, C.P.C.

Abdul Rasheed Saudagar v. S.M.. Lalita Rai PLD 1959 SC 287; Mir Zaman v. Mst. Magum Jan PLD 1983 Pesh. 100; Abdul Karim Butt v. Government of Balochistan 1989 CLC 1625; Bashiran Bibi v. Hidayatullah 1996 SCMR 1051; Naba Kumar Hazro and another v. Radhashyam Mahish\ and others AIR 1931 PC 229 and M.K. Abbasi v. United Bank Ltd. 1983 CLC 482 ref.

Ch. Zahid Jameel for Plaintiff. Khalid Rehman and Abdul Aziz Abbasi for Defendants.

2000 C L C 1535

[Karachi]

Before Saiyed Saeed Ashhad and Sabihuddin Ahmed, JJ

REHAN HASAN NAQVI‑‑‑Petitioner

versus

PAKISTAN DEFENCE OFFICERS' HOUSING AUTHORITY through Secretary‑‑‑Respondent

Constitutional Petition No.D‑2621 of 1994, decided on 19th May, 1999

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Cancellation of plot‑‑‑Question of fact‑‑‑Validity‑‑‑Where material on record was sufficient to decide the issue' in dispute or no controversial and intricate questions of fact were involved which could only be decided after evidence of parties was recorded, Constitutional petition was maintainable.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑Art. 199‑‑‑Constitu4ional petition‑‑‑ "Locus poenitentiae", Principle of‑‑‑ Applicability‑‑‑Cancellation of plot by Defence Housing Authority‑‑­Allotment of plot in favour of the petitioner conveyed to him by letter, dated 25‑10‑1975 was not made mistakenly or by inadvertence but was made legally in accordance with bye‑laws of the Society in balloting held for allotment of commercial plots‑‑‑Disputed allotment remained in force from 1975 till 1‑12‑1994 and during that period petitioner made payments towards the price and other dues relating to the plot, petitioner also complied with all other requirements as and when called upon by the Housing Authority to do so‑‑‑Petitioner had even made investments over the plot­ Allotment was cancelled on the ground that although the petitioner was member of the Society but was a retired civilian officer of Ministry of Defence and no plot could be allotted to a retired civilian officer ‑‑‑Validity‑‑­Bye‑laws of the Society did not contain any provisions that an eligible person once admitted to membership would cease to be a member after retirement from service‑‑‑Allotment in favour of the petitioner qua disputed plot could not be cancelled on the principle of locus poenitentiae‑‑‑Cancellation of plot was made in illegal exercise of power by the Authority and was of no legal consequence‑‑‑Order of cancellation of allotment of plot by Authority was set aside in circumstances.

Pakistan through Ministry of Finance v. Himayatullah Farukhi PLD 1969 SC 407 and Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992‑SCMR 1652 ref.

(c) General Clauses Act (X of 1897)‑‑‑

‑‑‑‑S, 21‑‑‑"Locus, poenitentiae", principle of ‑‑‑Applicability‑‑‑Authority competent to make order had power under S.21, General Clauses Act, 1897 to undo the same but the order could not be withdrawn or rescinded once it hart taken legal effect and certain rights were created in favour of an individual and that the principle of locus poenitentiae would be attracted in such situation.

Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCMR 1652 ref.

Qazi Faez Isa for Petitioner.

Nazar Hussain Dhoon for Respondent

Date of hearing: 11th February, 1998.

2000 C L C 1546

[Karachi]

Before Rasheed Ahmed Razvi, J

MUHAMMAD YAQOOB‑‑‑Plaintiff

versus

MOHSIN‑‑‑Defendant

Civil Suit No.307 of 1997 and Civil Miscellaneous Application No.882 of 1999, decided on 3rd December, 1999.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 2(r)‑‑‑Agreement for sale of immovable property‑‑‑Right of purchaser of the property‑‑‑Scope‑‑‑Purchaser of a property through an agreement of sale has no right, title or interest in the property proposed to be sold except to maintain a suit for specific performance.

Khayaban‑e‑Iqbal (Pvt.) Ltd. and 2 others v. Mustafa Haji Muhammad 1996 CLC 1758 and Manzoor Ahmed and others v. Mst. Iqbal Begum and others 1989 SCMR 949 ref.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2‑‑‑Sindh Rented Premises Ordinance (XVII of 1979), S.12‑‑‑Interim injunction, grant of‑‑‑Suit for specific performance of agreement to sell‑‑=Order of ejectment of plaintiff from the suit property was passed by Rent Controller‑‑­Contention by plaintiff was that there was an agreement to sell in favour of the plaintiff qua suit property and ejectment of the plaintiff from the suit property would create hindrance in execution of decree which might be passed in favour of plaintiff‑‑‑Validity‑‑‑Plaintiff was not entitled to resist his eviction as the same had been ordered by a competent forum of Rent Controller‑‑‑Defendant was directed not to create any third party interest in the suit property nor would part with the possession of the suit property‑‑­Such direction was made subject to deposit of balance consideration amount by the plaintiff‑‑‑Application for grant of interim injunction against order of eviction was disposed of accordingly.

Ismail Brothers v. Kaval Ram PLD 1981 SC 545; Iqbal and 6 others v. Rabia Bibi and others PLD 1991 SC 242; Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17; Allah Yar and others v. Additional District Judge and others 1984 SCMR 741 and Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1 ref.

(c) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), OXXXIX, Rr. 1 & 2‑‑‑Suit for specific performance‑‑‑Interim injunction‑‑‑Burden on plaintiff ‑‑‑Scope‑‑­Burden to prove is on person who seeks an ad interim injunction in such a suit, burden upon plaintiff is not that onerous as it would be for succeeding in obtaining a decree for specific performance.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑.‑O.XXXIX, Rr. Y & 2‑‑‑Interim injunction, grant of‑‑‑"Prima facie case "‑‑‑Meaning and scope‑‑‑Where plaintiff had established an arguable case as distinct from that of the plaintiff having no right at all, that was sufficient to establish a prima facie case.

Muhammad Matin v. Mrs. Dino Manekji Chinoy and others PLD 1983 Kar. 387 and Mrs. Dino Manekji Chinoy and others v. Muhammad Matin PLD 1983 SC 683 ref.

Abdul Wahab Baloch for Plaintiff.

S. Mukhtar Naqvi for Defendant.

2000 C L C 1551(2)

[Karachi]

Before Sabihuddin Ahmed

Abdul Ghani Shaikh, JJ

FEDERATION OF PAKISTAN‑‑‑Appellant versus

ALI AHMED QURESHI‑‑‑Respondent High Court Appeal No. 30 of 1995, decided on 31st January, 2000.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 114‑‑‑Damages‑‑‑Suit for‑‑‑Recovery of damages and arrears of salary‑‑Waiver‑‑‑Principles‑‑‑Applicability‑‑‑Dismissal from service‑‑­Validity‑‑‑Acceptance of legal dues by employee‑‑‑Effect‑‑‑Mere acceptance of legal dues on the part of the employee, would not amount to waiver so as to estop him from challenging the order of dismissal.

General Manager, National Radio Telecommunication v. Muhammad Aslam and others 1992 SCMR 2169 ref.

(b) Natural justice, principle of‑‑

‑‑‑‑ Rule of audi alteram partem‑‑‑Violation of‑‑‑Dismissal from service‑‑­Recovery of damages‑‑Respondent was employee of Chamber of Commerce and Industry and was prematurely retired from service‑‑‑Suit for recovery of damages and arrears of salary for the remaining period of service was filed by the respondent‑‑‑Appellant Authority raised the contention that the respondent was retired from service on his own request as he was found involved in gross irregularities and deliberate mismanagements against the interests of the appellant‑‑Validity‑‑‑Respondent could even be dismissed from service in the event of misconduct or being involved in an offence involving moral turpitude, but such action could only be taken after holding an appropriate inquiry and giving him a chance of personal hearing‑‑­Appellant though had persistently claimed that the respondent was found to have committed several irregularities but not a single instance of any irregularity had been mentioned either in pleadings or in evidence‑‑­Respondent was under the contract of employment embodied in the service regulations and was entitled to continue in the employment of the appellant up to the age of 58 years, subject to appellant's right to seek premature termination in accordance with rules‑‑‑Where safeguards provided in the rules were never given effect to, the premature retirement of the respondent was illegal.

S.S. Shetty v. Bharat Nidhi Ltd. AIR 1958 SC 12 ref.

(c) Master and servant‑‑‑

‑‑‑‑ Misconduct of servant‑‑‑Dismissal from service without notice‑‑­Validity‑‑‑Where employer is authorised to dispense with the services of its employees without notice, such notice ought to be given when allegations of misconduct or corruption form basis of termination of services.

Muhammad Siddique Jawaid v. Government of West Pakistan PLD 1974 SC 393 ref.

(d) Practice and procedure‑‑‑

Court cannot pass decree directing payment of an amount which a party may not be entitled to, under the law.

(e) Damages‑‑‑

‑‑‑‑Mitigation‑‑‑Recovery of damages and arrears of salary for remaining period of service on illegal termination of employment‑‑‑Plaintiff claimed such dues on the basis of his allegedly illegal premature retirement‑‑­Defendant had not even suggested to the plaintiff in his cross‑examination whether he had obtained any alternate employment and if so on what terms and no evidence to that effect was led by the defendant‑‑‑Plaintiff could not claim anything more than what he would receive for the full term of contract‑‑‑No deductions were made from the claim of the plaintiff on the ground of obligation to mitigate damages in circumstances.

Saeed A. Shaikh for Appellant. M.L. Shahani for Respondent.

Date of hearing: 29th November, 1999.

2000 C L C 1559

[Karachi]

Before Rasheed Ahmed Razvi, J

Messrs MUHAMMAD AMIN MUHAMMAD BASHIR

LIMITED and another‑‑‑Plaintiffs

versus

PAKISTAN through Secretary, Ministery of Communications, Rawalpindi and 5 others‑‑‑Respondents

Suits Nos. 185 and 324 of 1966, decided on 30th June, 1999.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 31‑‑‑Civil Procedure Code (V of 1908), O.VI, R.2 & O.VIII, R.5‑‑­Pleadings‑‑‑Use of written statement, as evidence‑‑‑Scope‑‑‑Pleadings are not evidence by themselves‑‑‑Statements made by defendant in written statement can be used as evidence in cases where such statements amount to admission of plaintiff's pleas‑‑‑Such admissions can be direct or even by implication and in both cases are proof in themselves‑‑‑Where defendant had failed to specifically deny any allegations of the plaint or where it was admitted even by implication, such fact being an admitted fact could be considered as part of admitted facts in circumstances.

Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Nazir Ahmad Khan and 2 others v. Muhammad Ashraf Khan and 2 others PLD 1975 Kar. 598; Muhammad Noor Alam v. Zair Hussain and 3 others 1988 MLD 1122; Riaz Muhammad and another v. Sarwar Shah and 2 others 1991 CLC 2462; J.B. Ross & Co. v. C.R. Seriven and others AIR 1917 Cal. 269; Muhammad Siddique v. Bhupendra Narayan Roy PLD 1962 Dacca 643 and K.A.H. Ghori v. Khan Zafar Masood and another PLD 1988 Kar. 460 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 121 & 122‑‑‑Burden to prove any particular issue‑‑‑Failure of plaintiff to appear in witness‑box in support of his case ‑‑‑Effect‑‑­Compelling plaintiff to appear in witness‑box and depose‑‑‑Drawing of presumption adverse to plaintiff for not appearing in witness‑box‑‑­Validity‑‑‑Such failure on the part of plaintiff is fatal when burden to prove any particular issue lies upon him and the facts are within his knowledge‑‑­Where a witness other than plaintiff is fully aware of the facts and has brought all relevant facts successfully before the Court, defendant cannot compel the plaintiff to appear in witness‑box and to depose‑‑‑Court may be Justified to draw presumption adverse to plaintiff or not appearing in witness‑box but it cannot be said that there is no evidence in the plaintiff's case in circumstances.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 151‑‑‑Suit, consolidation of‑‑‑Recording of separate evidence‑‑­Scope‑‑‑Once two suits are consolidated, there remains no need for recording of separate evidence‑‑‑Courts consolidate two suits for the purpose of avoiding conflicting judgments.

Shahzada Sultan Humayun v. Nasiruddin 1984 CLC 3090; Masood Bari v. Abdul Aziz PLD 1967 Kar. 55; Terath Ram v. Harbhog Singh AIR 1933 Lah. 1033; Muhammad Siddique and another v. Mst. Zahida Begum and another 1986 CLC 2963; Mst. Hafizan v. Muhammad Yasin and 2 others 1985 CLC 1448; Pakistan v. Messrs Agro Marketing Corporation Ltd. and 2 others 1981 CLC 443 and Sain Muhammad and 4 others v. Muhammad Younis 1993 CLC 723 rel.

Shabbir and 2 others v. Mst. Ghulam Fatima 1987 CLC 1407 ref.

(d) Constitution of Pakistan (1962)‑‑‑

‑‑‑‑Art. 131(3)‑‑‑Karachi Road Transport Corporation Ordinance (XXI of 1959), Preamble‑‑‑Repealing of central legislation, having effect in the province by Act of Provincial Legislature ‑‑‑Scope‑‑‑Karachi Road Transport Corporation Ordinance, 1959 was repealed by Provincial Legislature‑‑­Validity‑‑‑Central Legislature under the provisions of Art. 131(3) of Constitution of Pakistan (1962) had power to make laws having effect in the Province with respect to the matter enumerated in IIIrd Sched. of the said Constitution‑‑‑Any law made in pursuance of such power might be amended or repealed by an Act of the Provincial Legislature‑‑‑Provincial Legislature was legally competent to repeal Karachi Road Transport Corporation Ordinance, 1959 in circumstances.

PLD 1959 SC 174; PLD 1965 West Pakistan Statutes 57 and Syed Azizuddin v. Abdul Ghafoor Arain and 3 others PLD 1964 (W.P.) Kar. 88 ref.

(e) Companies Act (VII of 1913)

‑‑‑‑S. 34‑‑‑Karachi Road Transport Corporation Ordinance (XXI of 1959), Preamble‑‑‑Karachi Road Transport Corporation Ltd. (repealed) Ordinance (XXIV of 1964)‑‑‑Transfer of shares‑‑‑Dissolution of Karachi Road Transport Corporation Limited‑‑‑Shares of private persons, purchase of‑‑­Scope‑‑‑Provisions of S.34, Companies Act; 1913 provided for transfer of shares but where a company was incorporated by operation of law and where the company's dissolution or transfer was also effected by subsequent piece of legislation, provision of S.34 of Companies Act, 19? 3, would not come into play‑‑‑Certain provisions of Companies Act, 191? though were made applicable impliedly in respect of dissolved Corporation by virtue of provisions of S.35, Karachi Road Transport Corporation Ordinance, 1959 but winding up of the Corporation was left at the discretion of the Federal Government‑‑‑Corporation was dissolved under the provisions of Karachi Road Transport Corporation Limited (Repealed) Ordinance, 1964 but nothing was proposed in the repealing Ordinance about the mode of purchase of shares of private persons.

PLD 1960 Central Statutes 322; Karachi Electric Supply Corporation Ltd. v. Bank of India Ltd. PLD 1967 Kar. 144; Madhawa v. Canara Banking Corporation AIR 1941 Mad. 354 and Haji Sharif Khan and another v. Raja Abdur Rehman and 6 others PLD 1977 Kar. 814 ref.

(f) Karachi Road Transport Corporation Ordinance (XXI of 1959)‑‑‑

‑‑‑‑S. 35‑‑‑Karachi Road Transport Corporation Limited (Repeal) Ordinance (XXIV of 1964), Preamble ‑‑‑Vires of Karachi Road Transport Corporation Limited (Repeal) Ordinance, 1964‑‑‑Corporation was dissolved and shares of private parties were transferred to a newly formed company‑‑‑Plaintiffs had assailed in the suit such transfer of their shares‑‑‑Validity‑‑‑Karachi Road Transport Corporation Limited (Repeal) Ordinance, 1964 for all legal and practical purposes had dissolved the Corporation by repealing Karachi Road Transport Corporation Ordinance, 1959 and all the assets, liabilities, rights, charges, encumbrances and obligations of the Corporation were transferred to the new company‑‑‑Shares of the plaintiffs also stood transferred to the new company and they were to be dealt with at par with other shareholders.

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

‑‑‑‑Ss. 107, 151 & O. VII, R.7‑‑‑Relief, moulding of‑‑‑Scope‑‑‑Courts are competent to mould relief according to ‑ altered circumstances but such discretion is to be judicially exercised in the larger interest of justice with a view to avoid multiplicity of proceedings, to shorten litigation and to do complete justice between the parties.

Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 and Muhammad Aslam v. Wazir Muhammad PLD 1985 SC 46 rel.

Abdul Rauf for Plaintiffs.

Kazi Mehfooz for Defendant No. 1.

Haider Raza Naqvi for Defendant No.2.

Abrar Hassan for Defendant No.3.

Bashir Ahmed Memon, Official Assignee (on Court's Notice).

Dates of hearing: 13th, 17th, 18th, 19th and 27th May, 1999.

2000 C L C 1583

[Karachi]

Before Sabihuddin Ahmed

and Abdul Ghani Shaikh, JJ

MODERN TEXTILE MILLS LIMITED‑‑‑Petitioner

versus

COLLECTOR OF CENTRAL EXCISE AND LAND CUSTOMS and another‑‑‑Respondents

Constitutional Petition No.D‑1263 of 1986, decided on 20th December, 1999.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 18(2)‑‑‑Notification S.R.0.658(1)/86, dated 1‑7‑1986‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Imposition of 'regulatory duty‑‑‑Duty imposed exceeded the rate of 50% of rate of duty mentioned in First Sched. to Customs Act, 1969‑‑‑Validity‑‑‑Regulatory duty could not exceed the rate of 50% of the rate of duty mentioned in the Sched. of the Act‑‑‑Where rate of duty under the Sched. was 20% ad valorem, the regulatory duty imposed could not exceed the rate of 10%, accordingly such duty at the rate of 30% ad valorem could not be claimed‑‑‑Manner in which the responsible State functionaries some times act in delicate matters involving public revenues and rights of citizens or which causes the impression that public power is not exercised responsibly was lamented by High Court‑‑‑Levy of regulatory duty in excess of 50% of the rate of duty mentioned in the First Sched. to Customs Act, 1969, was invalid and petitioners were liable to pay only the duty at the rate of 10 % of import of the goods.

Yousuf Re‑Rolling Mills v. Collector of Customs PLD 1988 SC 232 fol.

Ittefaque Foundry v. Federation of Pakistan PLD 1990 Lah. 121 distinguished.

Shaikh Abdul Rahim Allahdita v. Federation of Pakistan PLD 1988 SC 670; Karachi Building Control Authority and others v. Hashwani Sales and Services Limited and others PLD 1993 SC 210; Ittefaque Foundry v. Federation of Pakistan PLD 1990 Lah. 121 and Collector of Customs v. Ravi Spinning Mills 1999 SCMR 412 ref.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 18(2)‑‑‑Levy of regulatory duty‑‑‑Levy of such duty was an attempt to undo the manifest expression of Legislature‑‑‑Validity‑‑‑Once it was recognised, that quantum of such duty at the relevant time could not exceed 50% of rate of duty specified in the First Sched. to the Act question of undoing the manifest expression of Legislature would not arise‑‑‑Regulatory duty could only be levied for certain limited purposes.

Collector of Customs v. Ravi Spinning Mills 1999 SCMR 412 ref.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 18(2)‑‑‑Imposition of regulatory duty‑‑‑Non‑mentioning of reason for such imposition in the notification‑‑‑Effect‑‑‑Not necessary that the reason for imposition of regulatory duty must be stated in the notification itself and non‑mentioning of such reason would not invalidate the levy.

Collector of Customs v. Ravi Spinning Mills 1999 SCMR 412 ref.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Striking down an instrument as ultra vires‑‑‑Court must explore all avenues for upholding the validity of an instrument before striking down same as ultra vires.

(e) Words and phrases‑‑‑

‑‑‑‑"Reasonable"‑‑‑Connotation and application‑‑‑Not possible to lay down a universal rule to determine what is "reasonable"‑‑'‑What may be reasonable in one set of circumstances may be altogether unreasonable in another‑‑?Question of reasonableness has to be considered always in the relevant context.

Muhammad Ali Saeed for Petitioners.

Date of hearing: 20th December, 1999.

2000 C L C 1593

[Karachi]

Before Rana Bhagwan Das

and Sabihuddin Ahmed, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN‑‑‑Petitioner

Versus

WAFAQI MOHTASIB, FEDERAL OMBUDSMAN SECRETARIAT, ISLAMABAD and another‑‑‑Respondents

Constitutional Petition No.D‑851 of 1991, decided on 30th November, 1998.

(a) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)‑‑‑.

‑‑‑‑Preamble & Art. 9, proviso‑‑‑Establishment of the Office of Wafaqi Mohtasib‑‑‑Purpose‑‑‑Jurisdiction of said office‑‑‑Scope‑‑‑Establishment of the Office. of Wafaqi Mohtasib (Ombudsman) Order, 1983 is an extraordinary statute enacted for taking expeditious action in order to redress and rectify injustice done to a person through maladministration‑‑‑Mohtasib's jurisdiction extends to a ministry, division, department, commission or office of the Federal Government or a statutory corporation or other institutions established or controlled by the Federal Government‑‑‑Such jurisdiction does not include Supreme Court, Supreme Judicial Council or the High Court.

Prince Glass Works Limited v. National Bewerages Ltd. PLD 1.987 Kar. 49 distinguished.

(b) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (i of 1983)‑‑‑

‑‑‑‑Art. 9, proviso‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Inquiring into agreement between the parties and enforcing compliance of any settlement‑‑‑Suit of the petitioner was decreed by Trial Court and the decree was upheld up to the Supreme Court‑‑­Respondent agitated the matter before Wafaqi Mohtasib after the same was finally decided by the Courts of competent jurisdiction ‑‑‑Wafaqi Mohtasib reduced the decretal amount on the ground that the parties had entered into a compromise and were bound to enforce that compromise reached at out of the Court‑‑‑Validity‑‑‑Parties could contract amicably out of Court notwithstanding any decree but it was not open to the Wafaqi Mohtasib to enquire into the agreement between the parties and to enforce compliance of any settlement in the exercise of jurisdiction vested in him under the law‑‑­Such order passed by Wafaqi Mohtasib was without any lawful authority and of no legal effect.

(c) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)‑‑‑

‑‑‑‑Art. 29‑‑‑Immunity from judicial review‑‑‑Scope‑‑‑Bar was imposed on the jurisdiction of Court under the provision of Art. 29 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 to question the validity of any action taken or intended to be taken or order made or anything done or purported to have been taken, made or done by Wafaqi Mohtasib‑‑‑Such protection was available only in case of the action taken within the four corners of the Order itself‑‑‑Any action taken or order made beyond the scope of authority could not be immune from judicial review.

(d) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)‑‑‑

‑‑‑‑Art. 32‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Maintainability‑‑‑Pendency of representation to President for review of order of Wafaqi Mohtasib‑‑‑Fffcct Such review petition pending before the President would not oust the extraordinary jurisdiction of High Court under Art. 199'of the. Constitution. [n‑ 1599] D

Habib Bank Ltd. v. Pak. Industrial Promoters (Pvt.) Ltd. PLD 1996 Kar. 218 ref. '

I.H. Zaidi for Petitioner. Standing Counsel for Respondent No. 1.

A. H. Lakho for Respondent No. 2.

Date of hearing: 17th November, 1998.

2000 C L C 1615

[Karachi]

Before Rasheed Ahmed Razvi, J

NAZIR and others‑‑‑Petitioners

versus

K. T. C. ‑‑‑Respondent

Execution No.30 of 1997, decided on 24th September, 1999.

Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Sindh Chief Court Rules (O.S.), R.364‑‑‑Civil Procedure Code (V of 1908), Ss.73 & 82‑‑‑Income Tax Ordinance (XXXI of 1979), S.92‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Withdrawal of decretal amount‑‑‑Priority of right of Income‑tax Department over the decree‑holders‑‑‑Suit for compensation having been decreed, decree‑holder filed applications under 8.364, Sindh Chief Court Rules (O.S.) seeking permission of withdrawal of decretal amount lying with Nazir of the Court‑‑‑Official Assignee had also filed a reference based on letter by Deputy Commissioner of Income‑tax through which certain amount .was claimed as liability of income‑tax outstanding against judgment‑debetor‑‑‑Income Tax Department had claimed priority of arrears of tax over private decree‑holders‑‑‑Provisions of S.92, Income Tax Ordinance, 1979, no doubt had authorised Deputy Commissioner of Income‑tax Department to require from any person through a notice in writing any tax due, if said amount was being held by that person, but first prerequisite for enforcing said provision of law was that there must be an assessee against whom income‑tax was due or payable; other condition was that amount retained by said person should belong to assessee‑‑‑Income­tax Department had not established that its claim was result of duly conducted assessment proceedings‑‑‑Despite objection from judgment‑debtor that it was not liable to pay amount of income‑tax as claimed by Income‑tax Department, no material was placed by the Department to show that its claim was well‑determined and settled‑‑‑Unless .it was established, right of priority of Income‑tax Department could not be given as against other decree‑holders ‑‑‑Nazir of Court was ordered to disburse respective claims of decree‑holders as earmarked by the Court and remaining amount would go to Income‑tax Department against its claim.

Saeed Abu Mian v: Haji Abdul Ghani and another PLD 1974 Kar. 39; Murli Tahilaram v. T. Asoomal & Company AIR 1955 Cal. 423; PLD 1974 Kar. 42; Oudh Commercial Bank Ltd. v. Secretary of State AIR 1935 Lah. 319(2); Lal Muni Lal v. Dwan Chand and another AIR 1939 Lah. 488; Rex v. Wells (1812) 16 East 278; Quick's case 16 East 282; Henlay & Co. (1878) 9 Ch.D. 469; New South Wales Taxation Commissioner v. Palmer (1907) AC 179; Secretary of State v. Bombay Landing & Shipping Co. 5 Bom. HCR (OC) 23; Ganpat Putaya v. Collector of Kanara 1 Bom. 7; Gulzari Lal v. Collector of Bareilly 1 All. 596; Union of India v. Messrs Sotnosundaram Mills (P.) Ltd. and another AIR 1985 SC 407; Messrs Builders Supply Corporation v. Union of India and others (1955) 28 ITR 979; Messrs Builders Supply Corporation v. Union of India and others AIR 1965 SC 1061 = (1965) 56 ITR 91; Habib Bank Ltd. v. Rudolf Donhill and others 1999 PT' 2940; Federation of Pakistan v. Pioneer Bank Ltd. PLD 1958 .Dacca 535; Industrial Development Bank Ltd. v. Messrs Maida Limited and 3 others 1989 CLC 143; Industrial Development Bank of Pakistan v. Commissioner of Income‑tax (H.C.A. No.85 of 1987); Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67; Abdul Latif v. Government of West Pakistan and others PLD 1962 SC 384; Muhammad Akbar Cheema v. The Province of West Pakistan and another 1984 SCMR 1047 and Raj Kumar and 3 others v. National Bank of Pakistan and another 1994 CLC 206 ref.

Hussain Shah Rashdi and Nasir Maqsood for the Decree‑holders. Nasrullah Awan for the Income‑tax Department.

Munir‑ur‑Rehman, Addl. A.‑G. alongwith Gul Muhammad Soomro, Legal Adviser, K.T.C.

Dates of hearing: 9th and 24th September, 1999.

2000 C L C 1646

[Karachi]

Before Anwar Zaheer Jamali. J

Syed SHARAF ALI SHAH ‑‑‑Applicant

versus

Syed LIAQUAT ALI SHAH‑‑‑Respondent

Civil Revision No:81 of 1998, decided on 11th January, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXVII, R.2‑‑‑Security‑‑‑Furnishing of‑‑‑Petitioner had contended that Court had directed respondent to furnish security, but Court instead of security had accepted surety in violation of spirit of its own order‑‑­Respondent not only had furnished security, but also had got executed bond by surety‑‑‑Furnishing of safety was also fully. covered by term "security".

Legu Venkataramanayya Setty and another v. Gunda Subbayya Chetty and others AIR 1962 Andh. Pra. 175 and Foulks v. Suppan Chettiar AIR 1945 Mad. 13 ref.

(b) Words and phrases‑‑‑

‑‑‑‑"Security"‑‑‑Connotation‑‑‑Meaning and import discussed.

Legu Venkataramanayya Setty and another v. Gunda Subbayya Chetty and others AIR 1962 And. Pra. 175 and Foulks v. Suppan Chettiar AIR 1945 Mad. 13 ref.

Sajjad Hussain Kolachi for Applicant.

Kalandar Bux Phulpoto for Respondent.

2000 C L C 1654

[Karachi]

Bejbre Ghulam Rabbani, J

MUHAMMAD ALI ‑‑‑Applicant

versus

YAR MUHAMMAD and 2 others‑‑‑Respondents

Civil Revision Application No.27 and Civil Miscellaneous Applications Nos.48 and 52 of 2000, decided on 28th February, 2000.

(a) Muhammadan Law‑

‑‑‑‑ Pre‑emption‑‑‑Suit for pre‑emption ‑‑‑.Making of Talb‑e‑Muwathibat‑‑­Delay‑‑‑Effect‑‑‑Evidence on record had established that first demand (Talb­e‑Muwathibat) was not made by the pre‑emptor immediately, but was made after getting knowledge of sale of suit land‑‑‑Effect‑‑‑Entitlement to right of pre‑emption could' only be created when pre‑emptor asserted his right immediately on receipt of information of sale of suit land ‑‑‑Talb‑e­Muwathibat having not been made by pre‑emptor immediately‑‑‑Suit was rightly dismissed.

Islamic Law (Principles of Muhammadan Law) ,by D.F. Mulla, Pakistan Edn. by Dr. M.A. Mannan, para.236 ref.

(b) Muhammadan Law‑‑‑

‑‑‑‑ Pre‑emptor‑‑‑Talb‑e‑Muwathibat made by attorney‑‑‑Only a person previously authorised by pre‑emptor could make the demand.

Islamic Law (Principles of Muhammadan Law) by D.F. Mulla, Pakistan Edn. by Dr. M.A. Mannan, para.236 ref.

Zahoor Ahmed Arain for Applicant.

2000 C L C 1667

[Karachi]

Before Mushtaq Ahmed Memon, J

Messrs HABIB BANK LIMITED‑‑‑Plaintiff

versus

Messrs T.D.C. VEHICLE. ENGINEERING

(PVT.) LTD. FORMARLY KNOWN AS TRAILER DEVELOPMENT

CORPORATION (PVT.) LTD. and 6 others‑‑‑Defendants

Suit No.1470 and Civil Miscellaneous Application No.8282 of 1997, decided on 11th May, 1998.

Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)‑‑

‑‑‑‑S. 6‑‑‑Civil Procedure Code (V of 1908), O.XXXVII, Rr.2 & 3‑‑‑Suit for recovery of loans‑‑‑‑‑application for leave to defend suit‑‑‑Deletion of names of certain defendants‑‑‑Directors of defendant‑Corporation who were arrayed as defendants in suit were not necessary party in proceedings, but only were joined on account of their being Directors of the Corporation‑‑‑Names of said defendants were struck off and no serious question for trial having been raised by defendants, their application for .leave to defend the suit was dismissed.

Habib Bank Ltd. v. Messrs Farooq Compost Fertilizer Corporation Ltd. and 4 others 1993 MLD 1571 ref.

Muhammad Zubair Qureshi for Plaintiff. Ch. Muhammad Jarneel for Defendants.

2000 C L C 1673

[Karachi]

Before Sarmad Jalal Osmany, J

Miss GUL‑E‑RANA‑‑‑Plaintiff

versus

MUHAMMAD MANSOOR KHAN and 4 others‑‑‑Defendants

Suit No.1046 of 1996 and Civil Miscellaneous Application No.8414 of 1997, decided on 29th March, 2000.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Specific performance of contract‑‑‑Existence of contract‑ ‑‑Proof‑‑­Onus to prove‑‑‑Scope‑‑‑Requisites‑‑‑Plaintiff, in a suit for specific performance has to assert that a contract exists between him and the defendant‑‑‑Plaintiff has to plead the facts regarding the contract which he desires to be specifically preformed and also regarding the status and factual aspects concerning others who are interested in denying his title.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O. VII, R. 11‑‑‑Suit fox specific performance of agreement to sell‑‑‑Plaint, rejection of‑‑‑Failure of plaintiff to mention in the plaint as to how the defendant would pass on title regarding suit property to the plaintiff‑‑‑Defendant entered into agreement to sell the suit property to the plaintiff but subsequent to such agreement executed a registered sale‑deed in favour of a third person‑‑ ‑Contention by the defendant was that as it was not mentioned in the plaint as to how such title would be passed on to the plaintiff, the plaint was liable to be rejected‑‑‑Validity‑‑‑Plaintiff was to prove the case through evidence and such issue would be decided at the trial stage‑‑‑Where the issue required evidence, it would be unfair as well as inequitable to dismiss the suit on such ground‑‑‑Application for rejection of plaint being without force was dismissed.

Muhammad Akram v. Muhammad Rafi 1989 CLC 15; Abdul Wahab v. Province of Punjab 1986 MLD 2049; Abdul Rashid Velmi v. Habib‑ur‑Rehman 1995 MLD 397; Liaquatabad Super Market v. Mayor of Karachi PLD 1981 Kar. 613; Civil Aviation Authority v. Data International PLD 1993 Kar. 700 and Parveen Begum v. Shah Jehan PLD 1996 Kar. 210 distinguished.

Ghulam Ali v. Asmatullah 1990 SCMR 1630; Muhammad Akhtar v. Abdul Hadi 1981 SCMR 878; Ghafooran v. K.M.C. 1996 MLD 1541; Zafar Ahmed Ansari v. Auqaf Department 1996 CLC 892; Noor Begum v. Muhammad Boota PLD 1995 Lah. 344; Sarfraz Khan v. Abdul Karim 1991 MLD 1230; Sehar Begum v. Salahuddin 1991 MLD 1594 and Aijaz Mehmood v. Muhammad Jamil 1996 CLC 1027 ref.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 2(h)‑‑‑Specific Relief Act (I of 1877), S.54‑‑‑Agreement of sale of immovable property‑‑‑Protection available; to buyer‑‑‑Scope‑‑‑Buyer under agreement of sale. did not have a title‑‑‑here possession of property in question had been given to the buyer in pursuance of such agreement such possession would confer on the buyer certain rights to be protected by law‑‑­One of the rights being that of injunction as provided under S.54, Specific Relief Act, 1877, whereby possession of the buyer could be protected.

Hyderabad Municipal Corporation v. Messrs Fateh Jeans Limited 1991 MLD 284 ref.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R. 11‑‑‑Rejection of plaint‑‑‑Object‑‑‑Provisions of O. VII, R.11, C.P.C. should be set in motion at the first available opportunity in order to ensure that a suit if not well‑founded in law should be laid to rest, so that further time is not wasted in fruitless litigation.

Burmah Eastern Limited v. Burmah Eastern Employees' Union PLD 1967 Dacca 190, Pakistan v Devanchand Muljimul PLD 1968 Kar. 107 and P.S.O. v K.E.S.C. PLD 1991 Kar. 365 ref.

Maqsood Hassan Khan for Plaintiff. Shaikh Riaz Ahmed for Defendants Nos. l and 4.

Date of hearing: 27th November, 1998.

2000 C L C 1682

[Karachi]

Before Mushtaq Ahmed Memon, J

Messrs MUSLIM COMMERCIAL BANK LTD. ‑‑‑Plaintiff

versus

Messrs TARBELLA COTTON AND SPINNING MILLS (PVT.) LTD. and 4 others‑‑‑Defendants

Suit No.218 and Civil Miscellaneous Application No.2751 of 1999, decided on 23rd August, 1999.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XXV of 1997)‑‑‑

‑‑‑‑S. 9‑‑‑Civil Procedure Code (V of 1908), O.XXXVII, Rr.2 & 3‑‑‑Suit for recovery of loan‑‑‑Application for leave to defend suit‑‑‑Defendants who had filed application for leave to defend suit beyond statutory period of twenty­one days, had sought condonation of said delay‑‑‑Validity‑‑‑Time for filing application for leave to defend suit could be extended only if Court was satisfied that defendants did not have knowledge of publication of summons pertaining to suit‑‑‑Defendants had not even made a bare statement that publication of said summons in newspaper was not within their knowledge‑‑­Defendants having failed to file application for leave to defend suit within time despite having knowledge of summon, no ground existed for extension of time for filing application for leave to defend suit.

Muhammad Zubair Qureshi for Plaintiff. Khalil‑ur‑Rehman for Defendants Nos.2 and 3.

2000 C L C 1696

[Karachi]

Before Sabihuddin Ahmed, J

Mrs. TAHIRA NAQVI‑‑‑Appellant

versus

ABDUL RAUF and 4 others‑‑‑Respondents

First Rent Appeals Nos.256, 252, 253, 254, 255, 257, 258 and 259 of 1999, decided on 24th February, 2000.

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Title of landlord, determination of‑‑‑Scope‑‑‑Where questions regarding title of a person claiming to be the landlord are involved, proper course is to allow such questions to be resolved in a civil suit rather than in a summary inquiry under Sindh Rented Premises Ordinance, 1979.

Rehmatullah v. Ali Muhammad 1983 SCMR 1064 and Allahyar and others v. Additional District Judge and others 1984 SCMR 741 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Default in monthly rent and subletting of premises‑‑‑Unregistered agreement to sell produced by tenant‑‑‑Landlord had purchased the premises and had a registered sale deed in his favour‑‑‑Tenant relied on an agreement to sell in his favour which was prior in time than the registered sale‑deed produced by the landlord‑‑‑Validity‑‑‑Registered sale deed had precedence over a prior unregistered agreement to sell‑‑‑Once the landlord had produced such sale deed in his favour, the tenant could not escape liability to pay rent on the basis of unregistered prior agreement and was liable to be ejected for default‑‑‑Tenant in circumstances, could not challenge the validity of sale in favour of the landlord in ejectment proceedings‑ ‑‑Rent Controller thus had rightly passed the orders for ejectment of the tenants in circumstances.

Rehmatullah v. Ali Muhammad 1983 SCMR 1064; Allahyar and others v. Additional District Judge and others 1984 SCMR 741; Iqbal and others v. Rabia Bibi and another PLD 1991 SC 242; Tahir Hussain Malik v. Najma Rafi 1995 SCMR 1407; Prevaiz Akhtar v. Dr. Muhammad Ahsan and others PLD 1988 SC 734 and Muhammad Ishaque‑v. Khursheed Alam PLD 1989 SC 353 ref.

Muhammad Sharif for Appellant.

K.A. Wahab for Respondents.

Dates of hearing: 22nd, 23rd September; 17th November and 15th December, 1999.

2000 C L C 1708

[Karachi]

Before Muhammad Roshan Essani, J

Mst. SABERUN NISA through

Attorney‑‑‑Appellant

versus

ABDUL GHANI MEMON‑‑‑Respondent

First Rent Appeal No. 12 of 1999, decided on 3rd December, 1999.

(a) Sindh Rented Premises Ordinance (XV II of 1979)‑‑‑

‑‑‑‑Ss. 15 (ii) & 18‑‑‑Default in payment of monthly rent‑‑‑Change of ownership of premises‑‑‑Notice under S.18, Sindh Rented Premises Ordinance, 1979, was received by the tenant and acknowledgment of transfer of ownership by previous owner was also received‑‑‑Tenant after receipt of the notice was required to pay the rent to new owner directly within 30 days from that notice but instead of doing so the tenant started depositing rent in the Court‑‑‑New owner received the rent for that period only when the Rent Controller passed such order‑‑‑Effect‑‑‑Default on the part of the tenant was clear in circumstances.

Fazal Elahi v. Gul Khan Ahmed Qureshi 1997 SCMR 945 and Abdul Malik v. Mrs. Qaiser Jehan 1995 SCMR 204 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15(vii)‑‑‑Bona fide personal need of landlord‑‑‑Proof‑‑‑Tenant had no knowledge about the ownership of any other property in the name of landlord, nor did she know about the recent position of the family of the landlord‑‑‑Landlord had stated on oath that he needed the property for his personal bona fide use‑‑‑Validity‑‑‑Where statement of the landlord was in consonance with the pleadings and remained unchallenged and unshaken, claim for requirement of property for bona fide personal use and occupation was established.

Allah Dino v. Din Muhammad and others 1986 CLC 395 and Fazal Sons v. Shabbir and othres 1999 SCMR 2612 ref.

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15(ii) & (vii)‑‑‑Default in payment of monthly rent‑‑‑Bona fide personal need of landlord‑‑‑Tenant after receipt of notice of change of ownership, instead of paying rent to landlord, started depositing the same in Court‑‑‑Tenant was not fair, she only wanted to create troubles for her landlord and was not sincere even to pay rent to her landlord‑‑‑Landlord had not only been deprived of his premises, for sufficient long time but had suffered a lot to collect the nominal rent which was fixed long back by the previous owner‑‑‑Effect‑‑‑Rent Controller had very rightly considered and discussed the evidence brought on record and passed a just and legal order‑‑­Ejectment application filed by the landlord was rightly granted on both grounds of default in payment of rent as well as personal requirement.

1997 MLD 923; 1986 CLC 107; 1998, MLD 43; 1987 CLC 472; 1987 CLC 1722; 1991 MLD 1; PLD 1987 SC (AJ&K) 93; 1989 SCMR 949; PLD 1996 Kar. 210; 1992 IvILD 810 and 1998 MLD 903 ref.

M. Farooque Hashim for Appellant. Abdul Aziz Khan for Respondent.

Date of hearing: 24th May, 1999.

2000 C L C 1715

[Karachi]

Before Sabihuddin Ahmed, J

Syed MUHAMMAD SOHAIL‑‑‑Appellant

versus

Khawaja MUSHTAQ AHMAD GHORI ‑‑‑ Respondent

First Rent Appeal No.211 of 1999, decided on 14th September, 1999.

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 14‑‑‑Bona fide personal need of landlord‑‑‑Expressions "a building" and "the building"‑‑‑Distinction‑‑‑Where a landlord is in occupation of a building (which means any building) owned by him in any locality, such landlord cannot avail of benefit of S.14(1) of Sindh Rented Premises Ordinance, 1979‑‑‑Expression "the building" used in S.14(1), proviso of Sindh Rented Premises Ordinance, 1979, only means the building which is subject‑matter of the dispute.

Amin Akhtar Jami v. Jehangir Alam 1993 MLD 1530 fol.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 14‑‑‑Bona fide personal need of landlord‑‑‑Building in occupation of landlord not suitable for his needs‑‑‑Validity‑‑‑Where a landlord is found to be in occupation of a building owned by him, he cannot invoke the provisions of S.14 of the Sindh Rented Premises Ordinance, 1979, merely because the building in question is not suitable for his needs.

Mrs. Najma Ashraf v. Mst. Noor Jehan 1993 MLD 866 and Abu Bakar v. Abdul Haleem PLD 1991 SC 302 ref.

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑Ss. 14 & 21(1)‑‑‑Bona fide personal need of landlord‑‑‑Requirement of

premises under provisions of S.14, Sindh Rented Premises Ordinance, 1979‑‑‑Tenant was ordered to be evicted from the premises as landlord was not in occupation of "any building" but was possessing a passage for some time used as a commercial premises‑‑‑Validity‑‑‑Mere fact that such passage was used as commercial premises would not alter its character and such fact would not per se exclude application of S. 14 of Sindh Rented Premises Ordinance, 1979.

Abu Bakar v. Abdul Haleem PLD 1991 SC 302 ref.

Ali Ahmad Tariq for Appellant.

Raja Sikandar Khan Yasir for Respondent.'

Date of hearing: 14th September, 1999.

2000 C L C 1722

[Karachi]

Before Hamid Ali Mirza

and Ghulam Rabbani, JJ

CIVIL AVIATION AUTHORITY‑‑‑Appellant

versus

Messrs PROVIDENCE AVIATION (PVT.) LTD. ‑‑‑Respondent

High Court Appeal No.2 of 2000, decided on 8th March, 2000.

(a) Limitation Act (1X of 1908)‑‑‑

‑‑S. 5‑‑‑Application for condonation of delay‑‑‑Non‑filing of counter­affidavit‑‑‑Effect‑‑‑Application for condonation of delay was supported by an affidavit and the same had gone unchallenged‑‑‑Contents of affidavit having gone unchallenged were deemed to be true‑‑‑Delay was condoned in circumstances.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXIX, Rr. 1, 2 & O. XLIII, RA(r)‑‑‑High Court appeal against interim injunction‑‑‑Dispute was regarding start of licence period‑‑‑High Court (Single Judge) granted interim injunction in suit filed by the respondents‑‑‑Contention raised by the respondents was that the period was to start from the date when the appellant had provided counters to the respondents to run their business‑‑‑Validity‑‑‑Licence agreement did not show any condition which obliged the appellant to provide such counters‑‑­Respondents were merely holders of a revocable licence and the appellant reserved his right to terminate the same at any time without notice and without cause being assigned and also without compensation‑‑‑Licence agreement explicitly stated that the same was to remain in force for a period of three years‑‑‑When the interim injunction was granted, the licence stood already expired‑‑‑Respondents did not have prima facie case for grant of injunction‑‑‑Order of interim injunction was set aside in High Court Appeal, in circumstances.

Amir Malik for Appellant. Shahenshah Hussain for Respondent.

Date of hearing: 8th March, 2000.

2000 C L C 1743

[Karachi]

Before Saiyed Saeed Ashhad, J

MUNEER AKHTAR‑‑Appellant

versus

Mst. SHAHNAZ BEGUM‑‑‑Respondent

First. Rent Appeal No.122 of 1998 and Civil Miscellaneous Applications Nos.219 and 220 of 1999, decided on 10th August, 1999.

Counsel and client‑‑‑

‑‑‑‑Authority of counsel to compromise‑‑‑Client had stated that he had never instructed his counsel to give an undertaking or to make statement before Court for having agreed to vacate premises in dispute on or before specified date and that his counsel had no authority to compromise the matter on his behalf‑‑‑Contention of client was repelled because in Vakalatnama filed in Court, client had authorised his counsel to withdraw or compromise proceedings‑‑‑All acts authorisedly taken by duly appointed counsel being binding on party appointing the counsel, statement relating to vacation of, premises in dispute, being very much subject‑matter of dispute before Court, was validly made by duly appointed counsel‑‑‑Civil Procedure Code (V of 1908), O.III, R.4.

Mst. Noor Jehan v. Azmat Hussain Farooqui 1992 SCMR 876 ref.

Appellant in person. Chaudhry A. Rashid for Respondent.

2000 C L C 1756

[Karachi]

Before Ghulam Rabbani,.J

ALMAS AHMED ;‑Appellant

versus

SALIM SABA ‑‑‑Respondent

First Rent Appeal No.334 of 1999, heard on 1st November, 1999.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Landlord seeking ejectment of tenant for personal bona fide use for his son, had produced sufficient evidence to prove that his son, who had become major, required to start his business in the shop‑‑‑Such evidence of landlord had not been shattered by tenant‑‑‑Tenant, in his own evidence also had not countered the evidence of landlord‑‑‑Landlord having fully proved that he wanted to accommodate his son in the shop bonafidely ejectment of tenant was rightly ordered by Rent Controller.

Muhammad Yameen v. Mst. Khalida Begum 1988 CLC 1297; Shah Zarin Khan v. Hameed Gul 1998 MLD 903; Khawaja Imran Ahmed v. Noor Ahmed 1992 SCMR 1152; M.F.K. & Co. v. Begum Feroze 1996 SCMR. 1178 and Noor Ahmad and another v. Khawaja Imran Ahmad 1988 CLC 1041 ref.

Fazlur Rahman for Appellant. Yousuf Moulvi for Respondent.

Date of hearing: 1st November, 1999

2000 C L C 1776

[Karachi]

Before Rana Bhagwan Das and Mashir Alam, JJ

WASI MAZHAR NADVI‑‑‑Petitioner

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑188 of 1991, decided on 2nd February, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Finding of fact‑‑‑Interference‑‑‑Scope‑‑‑High Court in Constitutional jurisdiction was justified in reversing a finding of fact which was unwarranted or based upon clear and manifest misreading of evidence.

Noora v. Settlement and Rehabilitation Commissioner 1969 SCMR 517 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Vested right, enforcement of‑‑­Scope‑‑‑Vested right having been created in favour of a party, denial thereof would justify direction by High Court in Constitutional jurisdiction to set right the wrong‑‑‑Where the petitioner failed to substantiate acquisition of any vested right, such right could not be enforced through Constitutional petition.

Muhammad Farooq M. Memon v. Government of Sindh 1986 CLC 1408 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Failure to file counter affidavit by public functionaries performing functions in connection with affairs of the State‑‑‑Effect‑‑‑Petitioner had assailed orders passed by two Tribunals created under West Pakistan Land Revenue Act, 1967, as being without lawful authority and of no legal effect‑‑‑Petitioner had contended that as no counter‑affidavit was filed by the respondents/Authorities, averments made in the petition must be deemed to have been accepted by the respondents/ Authorities‑‑‑Validity‑‑‑High Court in exercise of extraordinary jurisdiction ordinarily interpreted the law and confined its findings to the questions of law arising in a case‑‑‑Proposition advanced at the Bar could not be entirely accepted‑‑‑Where the orders, subject‑matter of the petition were authored by public functionaries, performing functions in connection with the affairs of the State, no counter‑affidavits were called for on the part of such respondents.

Manzoor Hussain v. Senior Member, Board of Revenue 1986 MLD 144 and Muhammad Ismail v. Government of Sindh PLD 1982 Kar. 833 ref.

A.M. Mobeen Khan for Petitioner. Zawar Hussain Jafri, Addl. A.‑G. for Respondents Nos. l to 4. Qadir Bux Memon for Respondents Nos.5 to 14.

Date of hearing: 2nd February, 2000.

2000 C L C 1786

[Karachi]

Before Amanullah Abbasi, J ‑'

Syed SHABBIR AHMED ‑‑‑Appellant

versus

Sheikh MUHAMMAD ASHRAF‑‑‑Respondent

First Rent Appeal No. 128 of 1994, decided on 12th January, 2000.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Default in payment of monthly rent‑‑‑Tenant failed to produce receipts showing payment of rent for a disputed period‑‑‑Certain rent receipts did not correspond to any counterfoil "of any receipt book and other receipts were on loose papers‑‑‑Writing on these loose papers could not be treated as payment of rent for disputed period‑‑‑Rent Controller had examined every aspect of the case and after examining the arguments advanced by both the parties, had given his own finding‑‑‑Rent Controller was justified in holding that the tenant had committed default in payment of rent.

PLD 1976 Lah. 1052; PLD 1978 Lah. 862; 1973 SCMR 608; PLD 1968 Dacca 167; PLD 1977 Kar. 711; PLD 1978 Kar. 263; 1997 SCMR 976; 1971 SCMR 598; PLD 1973 Kar. 56; 1975 SCMR 355; PLD 1979 Lah. 444; 1980 CLC 914; 1980 CLC 1077; 1980 SCMR 506; 1985 CLC 2109; 1984 CLC 1067; PLD 1989 SC 489 and PLD 1995 Kar. 179 ref.

M. Riazul Huda Shamsi for Appellant Farman A. Hashmi for Respondent.

Date of hearing: 25th February, 1999.

2000 C L C 1796

[Karachi]

Before Syed Saeed Ashhad, J

GOOL BANO and another‑‑‑Applicants

versus

AURANGZEB‑‑Respondent

Revision Application No.203 of 1995, decided on 20th October, 1999.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Declaration, grant of‑‑‑Contractual employment‑‑‑Remedy against ‑‑‑Scope‑‑‑Declaration under S.42, Specific Relief Act, 1877, is not available to contractual employment inasmuch as damages can be an adequate remedy for illegal or unlawful termination of service by employer‑‑.­Employee of a. private organization or a contract employee does not possess a legal character/status, as envisaged by S.42 of Specific Relief Act, 1877, for enforcement of which the employee can invoke the jurisdiction of a competent Court, under such provision of law‑‑‑Illegality or flaw in dismissing/terminating service of a private employee is of no consequence and does not provide a dismissed employee a right to seek reinstatement in service.

R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146 and Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194 rel.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Contractual employment, termination of ­Plaintiff was an employee of private organization whose service was terminated by the defendant organization‑‑‑Trial Court, on failure of the defendant to produce its evidence, decreed the suit on the basis of evidence led by the plaintiff and appeal filed by defendant was dismissed by Appellate Court‑‑‑Validity‑‑‑Both the Courts below did not take into consideration the provisions of S.42 of Specific Relief Act, 1877 which clearly barred the suit of the plaintiff and disentitled him from seeking relief of declaration in respect of illegal and unlawful termination‑‑‑Where both the Courts below erred in coming to their respective conclusions, such judgments could not be sustained and the same were set aside.

(c) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S_ 42‑‑‑Suit for declaration‑‑‑Discretionary relief‑‑‑Not every form of declaration could be sought under S.42 of the Specific Relief Act, 1877‑‑­Forms of declarations which could be made under the said provision and the principles applicable thereto stated.

M.G. Dastagir for Petitioner.

Raja M. Jalil Ashraf for Respondent. .

Date of hearing: 26th August, 1999.

2000 C L C 1806

[Karachi]

Before Ghulam Nabi Soomro,.J

Messrs PETROTECH through Managing Director‑‑‑Appellant

versus

Mrs. SHIREEN FAROOQ and another‑‑‑Respondents

First Rent Appeal No. 32 of 1995, decided on 27th November, 1998.

Cantonments Rent Restriction Act (XI of 1963)‑‑

‑‑‑‑Ss. 17 & 24‑‑‑Bona fide personal need of landlord‑‑‑Failure to produce evidence before Rent Controller‑‑‑Closing of evidence‑‑‑Relationship of landlord and tenant was not denied‑‑‑Tenants failed to shatter evidence led by the landlord and could not prove that landlord had no case‑‑‑Tenants failed to produce their evidence despite many opportunities, therefore, Rent Controller closed their evidence, accepted the ejectment application and passed order of ejectment of the tenants‑‑‑.Validity‑‑‑Where conduct of tenants was such and they deliberately failed to contest the case, order of the Rent Controller did not suffer from any illegality, irregularity or infirmity and the same did not call for any interference.

NLR 1982 (Civil) 655; 1980 CLC 67; 1992 CLC 102 and 1993 CLC 1325 ref.

Habibullah Samo for Appellant. Tasawar Ali Hashmi for Respondents.

Date of hearing: 24th November, 1998..

2000 C L C 1813

[Karachi]

Before Sabihuddin Ahmed, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN‑‑‑Appellant

versus

Mrs. SURRAYA SAJJAD‑‑‑Respondent

First Rent Appeal No. 189 of 1998, decided on 22nd October, 1999

(a) Bias‑‑‑

‑‑‑‑ Mere fact that a counsel (elevated later as a Judge) in course of his professional duties, appears against a particular party, does not in any manner, without further proof of anything more personal, indicate his personal bias against that party, particularly when such party happens to be a corporate entity.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 2(i)‑‑‑Expression "includes" in S.2(i), Sindh Rented Premises Ordinance, 1979‑‑‑Connotation‑‑‑Water charges, recovery of‑‑‑Scope‑‑­Provision of S.2(i) of Sindh Rented Premises Ordinance, 1979, does not mandate that in all cases water charges must be borne by tenant but leaves same to the parties to decide as to which of them is liable for payment and such charges are treated as rent only when the tenant is so liable‑‑‑Word "includes" indicates that when such charges are to be payable by the tenant they are deemed to constitute part of rent‑‑‑Unless rent agreement expressly required payment of water charges in addition to the agreed rent to be paid by the tenant, the composite amount stated to be rent of the premises would include such charges.

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 2(i) & 15‑‑‑Definition of "rent"‑‑‑Scope‑‑‑Default in payment of water charges‑‑‑Tenant on termination of agreement of tenancy remained in occupation‑‑‑Terms of agreement regulating the terms‑‑‑Relevance‑‑‑. Contention raised by landlord was that even if the tenant was not liable to pay water charges from commencement of the tenancy, the tenant would become so liable after the term of agreement expired‑‑‑Validity‑‑‑Even after the expiry of the original tenancy agreement, its provisions continued to remain effective unless such provisions were found to be repugnant to the provisions of the statute‑‑‑Definition of expression "rent" in S.2(i) of Sindh Rented Premises Ordinance, 1979, did not create any additional obligation upon the tenant and there was no other provision to which the agreement could be held to be repugnant‑‑‑Rent Controller had rightly dismissed the ejectment application filed on the ground of such default.

Zarina‑Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 ref.

Mian Mushtaq Ahmad for Appellant. Umer Qureshi for Respondent.

Date of hearing: 29th September, 1999.

2000 C L C 1821

[Karachi]

Before Muhammad Ashraf Leghari, J

MOHSIN ALI ‑‑‑Appellant

versus

Messrs SAIFEE WOOL HOUSE‑‑‑Respondent

First Rent Appeal No.669 of 1999, decided on 4th May, 2000.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15(2)(ii) & (vii)‑‑‑Default in payment of rent‑‑‑Bona fide personal need, of landlord‑‑‑Tenant on refusal of landlord to receive rent, started depositing rent in Court without committing any default‑‑‑Landlord who was seventy years old, owned other buildings and he had rented out many shops to other tenants and his sons were residing abroad‑‑‑Rent Controller, in circumstances, rightly dismissed ejectment application of landlord on grounds of default in payment of rent and personal bona fide need.

Dr. Ghulam Rasool v. Muhammad Iddrees Qureshi 1989 CLC 279; Mrs. Ram Lal and 8 others v. Mst. Nargis Khanum PLD 1996 Kar. 440; Messrs Bata Pakistan Limited v. Begum Ashraf Burney 1.993 MLD 697 and Muhammad Ahmed v. Mrs. Qamar Anwar Sheikh 1980 CLC 664 ref.

S. Mukhtar Hussain Naqvi for Appellant. Miss Salma Bano for Respondent. .

2000 C L C 1826

[Karachi]

Before Muhammad Ahsraf Leghari, J

EJAZ KARIMI‑‑‑Appellant

versus

ALI BAKSH‑‑‑Respondent

First Rent Appeal No.84 of 2000, decided on 2nd May, 2000

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord for his son‑‑‑Landlord to prove that shop in dispute was required for use of his son to establish business, had examined his son in Court who stated on oath that he needed shop for his own use in good faith as he intended to establish business of stationery and photostat machine‑‑‑Other witness examined by landlord had also corroborated testimony of landlord and his son‑‑‑Plea of tenant that shop in dispute was not suitable for use of landlord or his son had no force as it was for the landlord and his son to set things in their own way beneficial to them for setting business in right directions‑‑‑Tenant had failed to prove that landlord owned other shop suitable for running proposed business in the vicinity‑‑‑Rent Controller, in circumstances, had rightly allowed ejectment application of landlord on ground of personal bona fide need.

Mst. Bismillah Begum v. Fazal Muhammad 1987 CLC 1113; M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200; Muhammad Iqbal v. Saeeda Bano 1993 SCMR 1559; Mst. Saira Bai v. Syed Ansur. Rahman 1989 SCMR 1366; Dr. Major Abdul Ahad Khan v. Soofi Muhammad Yasin & Brothers PLD'1984 SC 200 and Mumtaz Hussain v. Muhammad Iqbal 1984 SCMR 576 ref.

Shaikh Muhammad Mushtaq for Appellant. Shamsuddin. Khalid Ahmed for Respondent

2000 C L C 1834

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD SHAFI BRIG‑‑‑Appellant.

versus

MUHAMMAD JAVED ‑‑‑ Respondent

First Rent Appeal No.550 of 1999, decided on 5th May, 2000.

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15(2) (ii)‑‑‑Default in payment of rent‑‑‑Proof‑‑‑Landlord seeking ejectment of tenant on ground of default in payment of rent had alleged that tenant was irregular in payment of rent, but had neither stated as to period during which tenant paid rent to him in irregular way nor period of default had been shown by him in his affidavit‑‑‑Effect‑‑‑Issue of default could not be decided in favour of landlord in absence of tangible evidence in that regard.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑‑

‑‑‑‑S 15(2) (vii)‑‑‑Bona fide personal need of landlord‑‑‑Landlord seeking, ejectment of tenant on ground of personal bona fide need had stated in his affidavit that he had grown up children and his present accommodation was not suitable for his occupation‑‑‑Testimony of landlord remained unshattered in his cross‑examination‑‑‑Tenant could not prove that landlord had any other premises, in the area‑‑‑Factum of personal bona fide need of landlord, in circumstances, stood proved‑‑‑Judgment of Rent Controller in that regard being based on logical reasoning and correct appreciation of evidence, would not call for interference.

Muhammad Naseeruddin v., Mst. Hashmat Bibi PLD 1993 Kar. 300; Mst. Mariam v. Mst. Zubaida Bai 1998 MLD 1031; Ulfat Ali v. Abdul Shakoor 1992 CLC 744; Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051; Abdul Rehman and others v. Pakistan State Oil Company Ltd. and others 1997 CLC 1085; Muhammad Yasin v. Shabbir Ahmad 1985 CLC 2111; Hajiani Zaina Bai v. Messrs Allied Bank of Pakistan Ltd. 1989 CLC 729; Dr. Juzar Ali v. Mrs. Mani Bai PLD 1987 Kar. 462; Haji Muhammad Ibrahim v. Hamzoo Khan PLD 1987 Kar. 520; Abdul Aziz and another v. Muhammad Ibrahim PLD 1977 SC 442; Mumtaz Hussain v. Muhammad Iqbal 1984 SCMR 576 and Dr. Maj. Abdul Ahad Khan v. Soofi Muhammad Yasin & Brothers PLD 1984 SC 200 ref.

Rasheeduddin for Appellant. Shahid Qadeer Suharwardy for Respondent.

2000 C L C 1841

[Karachi]

Before Sarmad J. Osmany , J

SAIFULLAH and another‑‑‑Appellants

versus

Ch. GHULAM GHOUS‑‑‑Respondent

First Rent Appeal No.79 of 1987, decided on 6th May, 2000.

(a) Affidavit‑‑

‑‑‑‑Not necessary that every application moved before Court of law should be supported by affidavit of a person who was a party to the proceedings‑‑‑Any person who was aware of factual aspects of the case could file a supporting affidavit.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Entitlement of co‑sharer to file ejectment application‑‑‑Co‑sharer was perfectly entitled to initiate ejectment proceedings without impleading other co‑sharers.

Abdul Ghani v. Abrar Hussain 1999 SCMR 348 ref.

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 2(f)(j)‑‑‑Relationship of landlord and tenant‑‑‑Where no rent agreement existed between the parties, law would presume that when a person who was not the owner of the premises occupied any portion thereof and had set up no title which was adverse to the' owner of premises, then such person by fiction of law would be tenant of premises.

Abrarul Haque v. Miss Asma‑Mumtaz 1992 MILD 322; Mst. Bibi Husan Bano v. Fazal Hussain PLD 2000 Kar. 119; _ Mst. Naseem v. Nabi Bux 2000 MLD 175 and Sharfuddin v..Riazuddin 1999 MLD 2137 ref., (d) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss. 2(f)(j) & 21‑‑‑Relationship of landlord and. tenant‑‑‑One of legal heirs of deceased owner and landlord of premises had successfully established that she was owner of the premises alongwith other heirs/co sharers by producing extract from Property Register which position was never controverted in cross‑examination‑‑‑Tenant had never claimed to be owner of premises or to have purchased same from either original owner or subsequent transferees‑‑­Tenant, in circumstances, occupied premises in no capacity other than as a tenant of original owner and after his death of legal heirs of the original owner.

(e) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑Ss. 2(f)(j), 15(2)(ii) & 21r‑‑Relationship of landlord and tenant‑‑‑Default in payment of rent‑‑‑Person who was in possession or occupation of premises owned by someone else, though could not have undertaken to pay rent to the owner, but was bound to pay, rent to him as consideration for being in possession or occupation of the premises‑‑‑Person who was in occupation of the premises in dispute denied existence .of relationship of landlord and tenant between the parties, but could not prove that he was owner of the premises‑‑‑Occupant/tenant who was proved to be tenant, did not pay rent to either original owner of the‑premises or after his death to his legal heirs until tentative rent order was passed by Rent Controller‑‑‑Occupant/tenant in his written statement had flatly denied any liability at all of payment of rent and he had also admitted that he had never paid rent to anyone before he ;emitted 'same in the Court‑‑‑Occupant/tenant, in circumstances, had‑ committed default in payment of rent and by so doing he had rendered himself liable to be ejected from premises on ground of default in payment of rent.

Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Pir Shah Mardan Shah and 3 others v. Chief Land Commissioner, Sindh and 2 others PLD 1974 Kar. 375; Sh. Muhammad Matin v: Mrs. ‑Khorshid Dosu Marker and 8 others 1983 CLC 1630; Zawar Hussain v. Abid Hussain Qureshi 1994 MLD 2251; The Pakistan Defence Officers' Housing Authority and 2 others v. Khadijabai and another 19.91 SCMR 1399; Qasirn and others v. The State PLD 1967 Kar. 233; Muhammad Shabir v. Hamida Begum 1992 MLD 323; Syed Hussain Ali Shah v. Shamsuddin 1998.MLD 394; Khuda Bux v. Muhammad Yasin 1992 MLD 2011; Noor Muhammad v. Mst. Hajira 1985 CLC 2085 and Abdul Rasheed Khan v. Muhammad Shaukat Hussain 1995 CLC 1078 ref.

Abdul Fatah Malik for Appellants. Shaikh' Abdul Ghani fof Respondent.

Dates of hearing: 14th, 21st and 24th April, 2000. '

2000 C L C 1869

[Karachi]

Before M. Ashraf Leghari, J

DEEN MUHAMMAD ‑‑‑ Appellant

versus

MUHAMMAD RASHID ‑‑‑Respondent

First Rent Appeal No.362 of 1998, decided on 1st May, 2000

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.‑ 16(1)(2)‑‑‑Non‑compliance of tentative rent order‑‑‑Striking off defence‑‑‑Tenant under tentative rent order was directed to deposit rent at the rate of Rs.2,500 per month‑‑‑Tenant for some time deposited rent at that rate, but thereafter he started depositing rent at rate of Rs.1,500 per month alleging that on taking special oath, plea of tenant that rate was Rs.1,500 per month having been accepted, rent was rightly deposited at Rs.1,500 per month‑‑‑On filing application by landlord under S.12(2), C.P.C. that order for depositing rent at Rs.1,500 was obtained by tenant with connivance of counsel for landlord, Rent Controller set aside said order and restored ejectment application‑‑‑Validity‑‑‑Tenant, in circumstances, was bound to pay rent at the rate of Rs.2,500 per month according to tentative rent order, but he failed to comply with that order‑‑‑Defence of tenant was rightly struck off by Rent Controller for non‑compliance of tentative rent order ‑‑‑Ejectment order passed, by Rent Controller not suffering from ‑ any illegality or irregularity, did ' not call for interference.

Agrics Cooperative Housing Society, Lahore v. F.L.C. and others 1996 MLD 1995; Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC f and Muhammad Saleem v. Muhammad Shafi 1982 SCMR 33 ref.

S.M. Alam for Appellant.

S.M'. Hyder for Respondent

2000 C L C 1892' .

[Karachi]

Before M. Shaiq Usmani, J

TRADING CORPORATION OF PAKISTAN‑‑‑Plaintiff

versus

INTER‑CONTINENTAL OCEANIC ENTERPRISES CORPORATION and 2 others‑‑‑Defendants .

Suits Nos.386 of 1982 and 781 of 1985, decided on 26th February, 1999.

(a) Admiralty Jurisdiction of High Courts Ordinance (XII of 1980)‑‑‑

‑‑‑‑Ss. 3, 4 & 7‑‑‑Hague Rules, Arts. l & 2‑‑‑Suit for recovery of amount of shortlanded goods‑‑‑"Carrier", determination and responsibilities of‑‑‑Carrier of consignment need not have to be the owner of vessel and it was the "carrier" who was responsible for any loss or damage to consignment. being responsible for the cargo from the time of loading till discharging of the cargo‑‑‑When vessel arrived at the port and consignee managed to retire Bill of Lading from the Bank, only then consignee had opportunity to learn about the identity of the carrier‑‑‑Occasionally name of the carrier was mentioned in ‑the forwarding letter of the Bill of Lading, but more often than not it bore the name of either Charterer of Managing Agents of the owners or the Charterers ‑‑‑If the consignment was shortlanded or was damaged then consignee had a claim against carrier, but when he or his under‑writer chose to initiate legal proceedings against the carrier, only person he knew definitely to be connected with carrier/vessel was Shipping Agent who entered the vessel in the port and who issued delivery order for the consignments‑‑‑If Bill of Lading indicated the name of a party in the forwarding letter then he invariably impleaded him as a defendant in the proceedings and then by way of abundant caution and also in view of .provisions of S.55, Customs Act, 1969 he impleaded local shipping agents as well‑‑True identity of carrier was of no concern to the consignee for his claim was against the carrier, whosoever that might be‑‑‑Carrier being principal of Shipping Agent who ~ entered the vessel in port, it would be sufficient if consignee, while suing the carrier, merely mentioned the Agent as primary defendant.

(b) Admiralty Jurisdiction of High Courts Ordinance (XIII of 1980)‑‑‑

‑-‑Ss. 3, 4 & 7‑‑‑Hague Rules, Arts.3.2, 3..4 & 4.2(m)‑‑‑Suit for recovery of amount of shortlanded goods‑‑‑Liability of carrier‑‑‑Once carrier loaded the consignment on board the vessel and issued a Bill of Lading, then the same would be deemed to have certified that goods that had been received were as described in the .Bill of Lading and carrier undertook to take care of goods and also discharged same at the port of discharge‑‑‑Bill of Lading prima facie was evidence of goods as described in Bill of Lading‑‑­Presumption was rebuttable inasmuch as it was for the carrier to show that the goods were in fact not as described in the Bill of Lading‑‑‑If carrier was not able to rebut presumption and if it was not able to deliver consignments as described in the Bill of Lading, it was liable for any shortage or any damage to the cargo‑‑‑Such principle would equally apply to dry cargo as well as oil cargo and no distinction could be drawn between liability of a carrier for one cargo or the other‑‑‑Only latitude that a carrier had was that it could show that cargo was not loaded in the same quantity or condition as was described in the Bill of Lading‑‑‑If carrier could show at the discharging point that shortage to the cargo occurred while goods were not in its custody then it could escape the liability‑‑‑Carrier could also escape liability if it could show that loss or damage fell within one or more exceptions described in Art.4 of Hague Rules‑‑‑If carrier would take such pleas then consignee, whose consignment had been lost or damaged, could show that vessel was not seaworthy or cargoworthy before and at the beginning of the voyage‑‑‑If that would happen then carrier could assert that it exercised due diligence to make the ship seaworthy‑‑‑Burde.i of proof would keep shifting between carrier and consitnee‑‑‑If a container/cargo was loaded in a sealed condition and was discharged in the same condition then carrier was not liable for loss or damage to the said cargo.

Canada and Dominion Sugar Company Ltd. 'v. Canadian National (West Indies} Steamship Ltd. (1947) AC 46; PLD 1992 SC 291; Pyrene Co. Ltd. v. Scindia Navigation Co. Ltd (1945) 2 QBD 402 and East and West Steamship Co..v. Hussain Brothers and others PLD 1968 SC 15 ref.

(c) Admiralty Jurisdiction of High. Courts Ordinance (XIII of 1980)‑‑‑

‑‑‑‑Ss. 3, 4 & 7‑‑‑"Delivery"‑‑‑Meaning and connotation of Ss.3, 4 & 7‑‑­Word "delivery" would mean "handing over", "giving to some other person" and‑ connoted the act of physical parting with something into custody of another‑‑‑Two co‑ordinates of said phenomenon were the act of discharge and incidence of passing into another's custody whatsoever it might be

(d) Words and phrases‑‑‑

‑‑‑‑‑ Delivery"‑‑‑Meaning.

Canada and Dominion Sugar Company Ltd. v. Canadian National (West Indies) Steamship Ltd. (1947) AC 46; PLD 1992 SC 291; Pyrene Co. Ltd. v. Scindia Navigation Co. Ltd (1945) 2 QBD 402; East and West Steamship‑Co. v. Hussain Brothers and others PLD 1968 SC 15; Centerchem Products Inc. v. A/S Rederiet Odfjell and Skibs A/S Haseel and A/S Special Bank 1972 AMC 373; 131 Fed. 229 (2 Cir. 1904); Calcot Ltd. v.

Isbrandlsen Co. 1963 AMC 1993 318 F (2d) 669(1 Cir. 1963); Northeast Petroleum Corporation v. S.S. Prairie Grove 1977 AMC 2139; PLD 1968 SC 15 and Amoco Oil Co. v. Parpada Shippin Co. Ltd. (1989) 1 LLR 369 ref.

(e) Admiralty Jurisdiction of High Courts Ordinance (XIII of 1980)‑‑‑

‑‑‑‑Ss. 3, 4 & 7‑‑‑Hague Rules, Art.4‑‑‑Suit for recovery of amount of shortlanded goods‑‑‑Burden of proof‑‑‑Legal burden would lay on claimants because he who alleged must prove the same‑‑‑When the quantity arrived was found to be short as compared to the one mentioned in Bill of Lading, then carrier would be liable for the shortage and burden would be on the carrier to show that shortage was covered under Exception laid down in Art.4.2 of Hague Rules.

Dow Chemical Co..(U.K.)'s case 1970 AMC 391, 297 F Supp at 708 and Palmco Inc. and Fireman's Fund Insurance Company v. American Resident Lines Ltd. and others 1978 AMC 1715 ref.

(f) Admiralty Jurisdiction of High Courts Ordinance (XII of 1980)‑‑

‑‑‑‑Ss. 3, 4 & 7‑‑‑Hague Rules, Arts.3, 4 & 7‑‑‑Suit for recovery of amount of shortlanded goods‑‑‑Transport losses‑‑‑Certain percentage of oil cargo was wasted during transportation by sea and said loss had been accepted to be up to 0.5 % of total quantity loaded, which could be extended in certain cases‑‑­Transportation losses to the extent of 0.5 % related to inflammable oil cargo only when losses attributed to evaporation amounted to about 0.2 % to 0.25 % while balance 0.25 % losses were attributed to other factors and those related to all oil cargoes including, edible oil cargo‑‑‑Cargo "transportation losses"‑‑‑The case of inflammable oil would not exceed 0.5 % and in case of edible ,oil cargo that would not exceed 0.25 %‑‑‑Carrier could press Exceptions permissible under Art,4.2(m), Hague Rules, and if arrived quantity of cargo was less than the one mentioned in the Bill of Lading, carrier would not be liable for shortage up to 0.5 % in case of inflammable oil cargo and 0.25 % in case of edible oil cargo.

1978 AMC 1715 ref.

(g) Admiralty Jurisdiction of High Courts Ordinance (XII of 1980)‑‑‑

‑‑‑‑Ss. 3, 4 & 7‑‑‑Hague Rules, Arts.3 & 4‑‑‑Suit.for recovery of amount of shortlanded goods‑‑‑Right to sue‑‑‑Generally it was underwriter who sued after being subrogaled to the rights of consignee who acquired such right only upon paying consignee's claim‑‑‑Subrogation rights would arise only after payment of claim, actual payment would be necessary.

(h) Admiralty Jurisdiction of High Courts Ordinance (XLH of 1980)‑‑‑

‑‑‑‑Ss. 3,, 4 & 7‑‑‑Hague Rules, Arts.3 & 4‑‑‑Customs Act (IV of 1969), 'Ss.55 & 156(1)‑‑‑.Suit for recovery of amount of shortlanded goods‑‑‑ Liability of shipping agent‑‑‑Provisions of 5.55(1)(8), Customs Act, 1969, which dealt with damage or short delivery of cargo, would not make shipping agent liable, but only "answerable for discharge of all claims for damage or short delivery"‑‑‑Such distinction between "liability" or "answerability" of customs penalty and cargo claim responsibility carried over to S.55(2) of the Act which made agent liable for payment of all custom penalties which could be imposed on Master of the Ship under 5.156(1) of Customs Act, 1969, but merely bound agent to discharge all cargo claims—

While law‑makers wanted to make shipping agent responsible with carrier for answering for cargo claim, but did not want the agent to be personally liable for payment of the claim‑‑‑Once liability of carrier was established, shipping .agent should discharge cargo‑ claims on behalf of their principal‑‑‑When consignee was unable to recover from carrier, either because of his refusal or avoidance, only then consignees undewriter could proceed to recover from ship agent.

Crescent Sugar Mills and Distillery Ltd. v. American Export Isbrandtsen Inc. PLD 1983 Kar. 29 and Haji Shakoor Ghani Firm v. Firm of Volert Bros. and another AIR 1937 Sindh 11 ref Nasarullah Awan for Plaintiffs (in Suit No.386 of 1982).

Muhammad Naeem and Javed Farooqi for Defendants (in Suit No.386 of 1982).

Shoib Ali Khan for Plaintiffs (in Suit No.781 of 1985).

Bashir Shaikh and Muhammad Naeem for Defendants (in Suit No:781 of 1985).

Imtiaz Lari, Jamil Ahmed Khan and Ghulam Muhammad Ebrahim Amicus Curiae.

Dates of hearing: 1st, 9th, 10th and 17th. December, 1998.

2000 C L C 1961

[Karachi]

Before Syed Deedar Hussain Shah, J

MUHAMMAD ASLAM‑‑‑Appellant

versus

Haji MUHAMMAD ZAHOOR‑‑‑Respondent

First Rent Appeal No.213 of 1998, decided on 30th January, 1999.

Sindh Rented Premises Ordinance (XV11I of 1979)

‑‑‑ Ss. 10(3) & 15(2)(ii)‑‑‑Wilful default in payment of rent‑‑‑Proof‑‑‑Tenant who used to pay rent to landlord and obtained receipts for rent, suddenly stopped payment of rent personally to landlord alleging that landlord had refused to accept the rent‑‑‑Tenant had failed to bring on record any evidence to prove that landlord had refused to accept the rent‑‑‑Effect‑.‑Even if landlord had refused to accept the rent, it was incumbent upon tenant first to remit rent to landlord. through postal money order and on refusal of same tenant should have deposited rent with Rent Controller with notice to landlord, but without first remitting rent to landlord through` postal money order, tenant directly started depositing rent with Rent Controller without notice to landlord‑‑‑Tenant who had failed to comply with provisions of S.10(3), Sindh Rented Premises Ordinance, 1979, was rightly ordered to be ejected holding him to be wilful defaulter in circumstances.

Mrs. Hamida Malik v. Mrs. Riffat Jehan Begum 1985 MLD 121; Mst. Sara Bai v. Messrs Anis Corporation and Firm 1985 MLD 1093; Munawar Hasan v. Badiul Hassan 1992 CLC 2495; Azeemuddin through his Legal Heirs v. Mst. Hamida Begum and 2 others PLD 1993 Kar. 50; Messrs Bamboath & Co. v. Messrs G.B. Constriction Co. 1995 MLD 816; Riazuddin v. Gul Khan Ahmed Qureshi 1996 CLC 1003; Muhammad Saleem Qureshi v. M. Mohsin Butt 1996 CLC 381; Sultan Ahmad v. Syed Kazim Raza Abidi and 3 others 1998 CLC 663; Muhammad Hussain v. Badiul Hasan Civil Petition No.517‑K‑ of 1992 end Muhammad Muslim through Legal Heir Muhammad v. Mst. Zubaida Begum and others Civil Petition No.208/K of 1996 ref.

S. Zaman Shah for Appellant. Syed Muhammad Haider for Respondent.

2000 C L C 1967

[Karachi]

Before Rang Bhagwan Das

and Sabihuddin Ahmed, JJ

S.K. ABDUL AZIZ‑‑‑Appellant

versus

MAHMOODUL HASSAN and others‑‑‑Respondents

High Court Appeal No. 106 of 1988, decided on 3rd December, 1998.

(a) Negotiable Instruments Act (XXVI of 1881)‑‑

‑‑‑‑5. 118‑‑‑Presumption as to negotiable instrument‑‑‑Presumption in terms of S.118, Negotiable Instruments Act, 1881, was of due execution of a negotiable instrument for valuable consideration and that every such instrument was accepted, endorsed, negotiated or transferred for consideration‑‑‑Presumption of law, which was rebuttable, was that negotiable instrument was made or drawn on such date which was duly recorded on such instrument.

(b) Law Reforms Ordinance (III of 1972)‑‑‑

‑‑‑‑S. 3‑‑‑Intra‑Court appeal‑‑‑Single Judge of High Court did not take material circumstances and evidence into consideration in its proper perspective and took an erroneous view of evidence which could not be upheld‑‑‑Judgment of Single Judge of High Court which did not conform to settled principles of appreciation of evidence, could not be sustained‑‑­Judgment and decree passed by Single Judge of High Court was set aside in Intra‑Court Appeal.

Akram Zuberi for Appellant. Amanullah Khan for Respondents.

Date of hearing: 26th November, 1998.

2000 C L C 1982

[Karachi]

Before Dr. Ghous Muhammad, J

Syed ADIL HUSSAIN ‑‑‑Appellant

versus

Mst. M AJDA‑‑‑Respondent

First Rent Appeal No.302 of 1996, decided on 16th December, 1998.

(a) Sindh Rented Premises Ordinance (XII of 1979)‑‑‑

‑‑‑‑Ss. 2(f)(j), 10(3) & 15(2)(ii)‑‑‑Relationship of landlord and tenant‑‑­Tenant in his case filed under S.10(3) of Sindh Rented Premises Ordinance, 1979 had admitted himself to be tenant under landlord, but in ejectment proceedings under S.15(2)(ii) of said Ordinance, he in his written statement denied relationship of landlord and tenant on a vague plea that landlord had sold away premises in dispute to some one else‑‑‑Such denial of tenant was contumacious and mala fide.

Allahdin v: Habib PLD 1982 SC 465; Muhammad Hussain v. Saleh Muhammad 1998 MLD 11; Saeed Ahmed v. S. Rais Pervaiz PLD 1997 Kar. 247; Muhammad Luqman Ahmed v. Munir Ahmad and another 1997 CLC 651; Naseem Begum.v. Mrs. Racesa Khatoon and 2 others 1997 MLD 1030; Feroz Khan v. Syed Zohra 1996 CLC 949; Noman Ahmed v. Mrs. Ghazala Iqbal 1996 MLD 1717; Mumtaz Ahmad v. Razia Zaheer 1993 CLC 1602; Abdul Aziz v. Syed Muhammad Afzal Shah 1990 CLC 336; Muhammad Bhai and 5 others v. Messrs Alia International Enterprises 1990 CLC 711; Mst. Roshan Habib v. Haji Usman through its 11 Legal Heirs 1987 CLC 1484; Jalees Ahmed v. Abida Ismail 1987 MLD 114; Syed Khadim Hussain Abdi v. Mst. Geti Ara Begum PLD 1986 Kar. 184; Ghulam‑ Samadani v. Abdul Hameed 1992 SCMR 1170; Madrissa Darul Uloom Al‑Baqiat‑ul­Salehat Registered v. The Additional District Judge (Appellate Court) PLD 1992 SC 401; Akbar Ali Khan Mirza v. The Additional District Judge and others 1989 SCMR 1399; Province of Punjab through Secretary Eduction and another v. Mufti Abdul Ghani PLD 1985 SC 1; Muhammad Islam Khan v. Cantonment Board, Kohat 1982 SCMR 1056; Muhammad Shah Alam v. Muhammad Abdul Ghafoor 1979 SCMR 443; Merajuddin and another v. Kh. Mehboob Elahi and 4 others 1992 CLC 2457; Sain Muhammad Tufail v. Anjuman‑e‑Darbar‑e‑Hussain 1993 MLD 316; Mst. Akhter Jehan Begum v. Muhammad Azam Khan PLD 1983 SC 1; Zia Ullah Shah v. Syed Riaz Ahmed 1981 SCMR 538; Mst. Jan Bibi 'and others v. Azam Khan and, another 1990 CLC 1858; Muhammad Saleem Qureshi v. M. Mohsin Butt PLJ 1996 Kar. 597; Abdul Rasheed v. Hanifur Rehman 1994 MLD 955; Munawar Hasan v. Badiul Hasan 1992 CLC 2495; Jamshed Baig v. Muhammad Ashique 1991 MLD 1048; United Bank Ltd. v. Ehasn Ellahi 1989 CLC 287; Messrs Kwality Food Products v. Mst. Sehba Nishat Haq 1991 MLD 1331; Syed Afroze Ali v: Mutiullah Khan NLR 1991 AC 514; Dr. Syed Ateeq Ahmed v. Mst. Nargis Jamal 1989 CLC 160; Mst. Noor Jehan and 3 others v. Piaray Lal 1990 ALD 580; Khursheed Ahmed v. Rahimuddin 1992 ALD 546; Shafiqur Rehman v. Saeed Ahmed 1991 MLD 1393; Muhammad‑ Shafi v. Mst. Sohra Khatoon 1983 CLC 346; Zohra Begum v. Pakistan Burmah Shell Ltd. 1984 CLC 2769; Zulfiqar Hussain v. Mrs. Tazeen Chaudhry 1986 CLC 393; Ghulam Samdani v. A. Hameed 1992 SCMR 1170 and Muhammad Shah Alam v. Muhammad Abdul Ghafoor 1979 SCMR 443 ref.

(b) Sindh Rented Premises Ordinance (XVI1 of 1979)‑‑‑

‑‑‑‑S. 16(1)(2)‑‑‑Non‑compliance of tentative rent order‑‑‑Effect‑‑‑Rent Controller by tentative rent order had directed tenant to deposit specified amount as arrears of rent‑‑‑Tenant deposited amount not as per direction of Rent Controller, but as per his own calculation‑‑‑Tenant should have complied with tentative rent order because he could have claimed adjustment of difference between two amounts which otherwise was meagre one‑‑‑Rent Controller, in view of deliberate non‑compliance of tentative rent order by tenant, could struck off defence‑ of tenant and pass order of ejectment against. tenant by summary disposal of case without any further proceedings.

Mst. Akhtar Jehan Begum v. Muhammad Azam PLD 1983 SC 1 ref.

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑

‑‑‑‑S. 15(2)(ii)‑‑‑Default in payment of rent of premises‑‑‑Burden to prove‑‑­If landlord had stated on oath that he had not received rent for the disputed period, landlord had discharged his burden of proof and same would shift to tenant.

Allahdin v. Habib PLD 1982 SC 465 ref.

(d) Sindh Rented Premises Ordinance (XII of 1979)‑‑‑

‑‑‑‑S. 10(3) & 15(2(ii)‑‑‑Default in payment of rent‑‑‑Non‑issuance of rent receipt by landlord‑‑‑Effect‑‑‑Tenant in his written statement as well as in affidavit‑in‑evidence of his attorney had alleged that landlord had never issued any rent receipt to tenant‑‑‑Duty of tenant who was an educated person and a lawyer by profession to have obtained rent receipt from landlord‑‑‑Evidence on record had nowhere indicated that tenant had ever protested for alleged non‑issuance of rent receipts‑‑‑If landlord had denied to issue rent receipts, tenant was required to act in accordance with provisions contained in S.10(3), Sindh Rented Premises Ordinance, 1979‑‑‑Evidence on record having clearly indicated that no attempt at all was made by tenant to. deposit rent through money order deposit of rent by tenant in Court was improper and invalid in circumstances.

(e) Sindh Rented Premises Ordinance (XII of 1979)

‑‑‑‑Ss. 2(i) & 15(2)(ii)‑‑‑Default in payment of rent‑‑‑Non‑payment of water and conservancy charges‑‑‑Effect‑‑‑Water and conservancy charges were not paid by tenant on the plea that said charges were included in monthly rent of the premises‑‑‑No tenancy agreement existed between parties whereby landlord was supposed to make payment of 'said charges‑‑‑Water and conservancy charges being included in definition of 'rent' as defined in S.2(i) of Sindh Rented Premises Ordinance, 1979, in absence of any evidence to the contrary, it was liability of tenant to pay said charges and on failure to do so, he would be considered defaulter.

Dr. Syed Atique Ahmed v. Mst. Nargis Jamal 1989 CLC 160 ref.

Abul Khair for Appellant. S.M. Akhtar Rizvi for Respondent.

Date of hearing: 11th December, 1998.

2000 C L C 1993

[Karachi]

Before Dr. Ghous Muhammad, J

ABDUL GHANI‑‑‑Appellant

versus

NUZHAT SHAHEEN‑‑‑Respondent.

First Rent Appeal No.75 of 1998, decided on 9th. February, 1999.

Sindh Rented Premises Ordinance (XVB of 1979)‑‑‑

‑‑‑‑5. 15(2)(vii)‑‑‑Bona fide need of landlord‑‑‑Proof‑‑‑Plea of landlady that premises was required for her own use and ,for use of her daughter remained totally unshaken in cross‑examination‑‑‑Findings of Rent Controller that landlady had proved her bona fide personal requirement in respect of premises in question, based on proper appreciation of evidence, were unexceptionable.

Ismail Padhiar & Co. for Appellant.

Shaikh Akram Aziz for Respondent.. .

Date of hearing: 9th February, 1999.

2000 C L C 1997

[Karachi]

Before Hamid Ali Mirza, J

RAFIQ ALI ‑‑‑Appellant

versus

KALIM ZIA KHAWAJA and another‑‑‑Respondents

First Rent Appeal No. 140 of 1997, decided on 9th March, 1998.

Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 24‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Appeal‑‑‑Limitation‑‑‑Delay‑‑­Condonation‑‑‑No sufficient cause had been shown by appellant for condonation of four days' delay in filing appeal whereas each day's delay was accountable‑‑‑Provisions of S.5, Limitation Act, 1908 being not' applicable to appeal filed under Cantonments Rent Restriction Act, 1963, appeal was dismissed being time‑barred.

Messrs BASCO Enterprises (Pvt.) Limited v. Muhammad Siddique and 2 others 1990 MLD 211; Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 88; Messrs Muqtada Khan Iqtida Khan v. Allah Rakh3 Begum 1981 CLC 568; MeSSIS.A.B.M. Engineering, Karachi v. Mst. Zeenat Zubair Siddiqui and 2 others 1987 CLC 2318; Leno Rozario v. Ghulam Muhammad Dossul 1996 MLD 821; Messrs Alba Industries v. Haroon 1985 CLC 2622; Mst. Sara Bai v. Messrs Anis Corporation 1987 MLD 49(2); Syed Anwar Ali v. Anwar Nadeem and others NLR 1986 CLJ 272; Muhammad Anis v. Mst. Akhtar Jehan Begum 1991 MLD 1386; Messrs M.S. Engineering Co. v. Muhammad Mushtaq and others 1992 CLC 492; Muhammad Shafi v. S.M. Enamal Haq end another 1986 CLC 1546; Syed Ashraf Ali v. Abdul Rashid 1984 CLC 2632; Muhammad Ibrahim v. Abdul Haseeb Khan CLC 2025 and Messrs Jahania Sons and another v. S.M. Younis and 2 otl 1984 CLC 2898 ref.

Pervez A. Ahmad for Appellant. Javad Kazi for Respondent No.2.

Date of hearing: 9th March, 1998.

2000 C L C 2012

[Karaclul

Before Muhammad Ashraf Leghari, J

ATTA MUHAMMAD ‑‑‑Petitioner

versus

Mst. MAJEEDAN‑‑‑Respondent

Constitutional Petition No.164 and Miscellaneous Application No.281 of 2000, decided on 15th May, 2000.

(a) Muslim Family Laws Ordinance (VII of 1961)‑‑‑

‑‑‑‑S. 8‑‑‑West Pakistan Family Courts Act (XXXV of 1964), Ss.5, Sched.. & 14‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Dissolution of marriage on ground of Khula‑‑‑During pendency of suit for dissolution of marriage filed by wife, husband had contracted second marriage without prior permission of the wife‑‑‑Family Court on basis of evidence on record had concluded that it was not possible for spouses to live within limits of God and granted dissolution of marriage on ground of Khula'‑‑‑Appeal against order of Family Court being barred under S.14 of West Pakistan Family Courts Act, 1964, husband filed Constitutional petition against judgment of Family Court simply on the ground that evidence on record should be re‑evaluated‑‑‑Husband had failed to point out any illegality or misreading of evidence on record by Family Court‑‑‑Appeal against judgment having .not been provided by law, Constitutional petition was not maintainable only on ground to re‑assess evidence on record‑‑­Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Scope‑‑‑Where a statute does not provide appeal against a judgment of the Court, Constitutional petition under Art.199 of the Constitution was not maintainable only on ground to reassess evidence on facts.

Muhammad Anwar Durani for Petitioner.

2000 C L C 2017

[Karachi]

Before Shabbir Ahmed, J

FIRST.GRINDLAYS MODARABA‑‑‑Plaintiff

versus

PAKLAND CEMENT LTD. and 2 others‑‑‑Defendants

Suit No. 268 of 2000, decided on 23rd May, 2000.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 2(a)‑‑‑"Banking company"‑‑‑Definition‑‑‑Modaraba company is included , in definition of "Banking company"‑‑‑Validity‑‑‑Definition of Banking company under S.2(a) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 is 'wide enough and includes "Modaraba" or "Modaraba Management Company" as Banking company.

Agrofoster (Pvt.) Ltd. and 2 others v. Judge, Banking Court No.5, Karachi PLD 1999 Kar. 398 ref.

(b) Modaraba Companies and Modaraba (Floatation and Control) Ordinance (XXXI of 1980)‑‑

‑‑‑‑S. 12(1)‑‑‑Modaraba, a legal entity ‑‑‑Scope‑‑‑Modaraba is a legal person with right to sue and to be sued in its name through the Modaraba Company under the provisions of S.12(a) of Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980.

(c) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 9‑‑‑Modaraba Companies and Modarabas (Floatation and Control). Ordnance (XXXI of 1980), S.25(1)‑‑‑Recovery of Modaraba assets and rentals‑‑‑Banking Court, jurisdiction of‑‑‑Scope‑‑‑Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, being a special and subsequent enactment supersedes the provisions of earlier special enactment‑‑‑Plaintiff has the option to file suit for recovery under S.9(1) of Banking Companies (Recovery of Loans, Advances,. Credits and Finances, Act, 1997, in addition to right available under S.25(1) of Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 10‑‑‑Terms "serious" and "bona fide"‑‑‑Defined.

(e) Banking Companies (Recovery of Loans, Advances, Credits and' Finances) Ad (XV of 1997)‑‑‑

‑‑‑‑S. 10‑‑‑Leave to defend the suit, grant of‑‑‑Suit for recovery of Modaraba assets and rental‑‑‑Failure to raise any serious and bona fide dispute in application for leave to defend‑‑‑If defendants had admitted availing of the facility execution of documents and liability to pay had not been disputed, defendant would be deed to have failed to make out a case for leave to defend.

Agrofoster (Pvt.) Ltd. and 2 others v. Judge, Banking Court No.5, Karachi PLD 1999 Kar. 398 ref.

(f) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 9‑‑‑Contract Act (IX of 1872). S. 126‑‑‑Liability of guarantors‑‑­Scope‑‑‑Liability of guarantor is limited to amount of guarantees.

Mian Munir Ahmed v. United Bank Limited and 3 others PLD 1998 Kar. 278 ref.

(g) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑

‑‑‑‑5. 9‑‑‑Suit for recovery of Modaraba assets and rental‑‑‑Recovery of salvage charges and terminal charges‑‑‑Validity‑‑‑Where the plaintiffs had claimed the leased machinery and equipment, they could not claim salvage charges, as the basis of such charges had not been given, furthermore, the plaintiffs were not entitled to recover terminal charges because such. were liquidated damages.

Arshad Tayebally for Plaintiff. Saalim Salacn Ansari for Defendants.

2000 C L C 1

[Lahore]

Before Malik Muhammad Qayyum, J

MUHAMMAD AZAM KHAN‑‑‑Petitioner

versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD

through Chairman‑‑‑Respondent

Review Application No.227 of 1997, heard on 4th October, 1999.

Civil Procedure Code (V of 1908)

‑‑‑‑0. XLVII, Rr.l & S‑‑‑Capital Development Authority Ordinance (XXII of 1960), S.4‑‑‑Review application‑‑‑Maintainability‑‑‑Division Bench of High Court in Intra‑Court Appeal in its judgment sought to be reviewed had observed that question as to whether record had been forged or not was essentially one of fact which could not be determined without recording any evidence‑‑‑At time of passing said judgment it was not brought to the notice of Division Bench that second enquiry was conducted by Additional Director Security who placed matter before officiating Chairman who duly approved the enquiry report‑‑‑Said report was to be taken as report of Capital Development Authority in terms of Capital Development Authority Ordinance, 1960‑‑‑As said aspect of matter was not considered earlier by Division Bench at the time of disposal of Intra‑Court Appeal, application for review and rehearing of appeal on its merits, was granted.

Raja Muhammad Anwar for Petitioner. Ch. Ghulam Hassan Gulshan for Respondent.

Date of hearing‑.4th October, 1999.

2000CLC3

[Lahore]

Before Tanvir Ahmad Khan, J

FAISAL FABRICS LTD. ‑‑‑Petitioner

versus

TOWN COMMITTEE, KHURRIANWALA

and others‑‑‑Respondents

Writ Petition•No.25363 of 1998, decided on 25th January, 1999.

Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑S. 137‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Imposition of octroi duty‑‑‑Petitioner had challenged imposition of octroi duty on imported material, firstly on ground that Mill of the petitioner was not situated within limits of Town Committee concerned and secondly that items so imported were used in the process of printing of cloth as well as its bleaching which cloth later on, in the processed form, was sent out of the limits of Town Committee‑‑‑Evidence on record had proved that Mill was situated within limits of Town Committee concerned and that imported material was being used in the Mill, products of which were exported out of Town Committee in processed form‑‑‑Authority, in circumstances, was competent to levy and recover octroi duty on material imported by the Mill.

Nemo for Petitioner. Ali Ahmad Awan for Respondents.

2000 C L C 27

[Lahore]

Before Syed Jamshed Ali and Syed Zahid Hussain, JJ

Rao INAYAT ALI ‑‑‑ Appellant

versus

DIWAN ALI ‑‑‑Respondent

Regular First Appeal No. 126 of 1998, heard on 10th March, 1999.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 2(a), 11 & 39‑‑‑Agreement to appoint Referee‑‑‑Revocation of appointment‑‑‑Rejection of application ‑‑‑Appeal‑‑ ‑of amount, agreed to appoint Referee to decide the matter‑‑‑Appellant/borrower filed application for revocation of appointment of Referee alleging that he had lost confidence in him as he was acting in a partisan manner‑‑‑Said application was rejected on sole ground that one could not be allowed to approbate and reprobate‑‑‑Validity‑‑‑Decision to be bound by the statement of a Referee, was outcome of a contract and parties were at liberty to revoke it before it was acted upon‑‑‑Appellant had applied for revocation of appointment of Referee before recording statement of Referee‑‑‑Contention of respondent that once appellant had agreed to be bound by the decision/statement of Referee, he was bound by his own word and could not be allowed to retract, had no significance in circumstances as statement of Referee had not been recorded, before filing application for revocation of his appointment.

Sher Zaman Khan v. Noor Zaman Khan and another PLD 1977 Lah. 672 ref.

Ch. Abdul Ghani for Petitioner. Ch. Muhammad Shafique for Respondent.

Date of hearing: 10th March, 1999.

2000 C L C 29

[Lahore]

Before Malik Muhammad Qayyum, J

Messrs NUMAN ADNAN INDUSTRIES‑‑‑Petitioner

versus

CHAIRMAN, C.B.R. and others‑‑‑Respondents

Writ Petition No.2487 of 1995, decided on 15th September, 1999.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 19‑‑‑Constitution of‑ Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Exemption from import duty‑‑‑Applicability of Notification S.R.0.499(1)/95‑‑­Non‑compliance of order of High Court‑‑‑Effect‑‑‑Petitioner was a manufacturer of Alloy Steel Ingote and a provisional certificate was issued to the petitioner for the import of certain quantities of raw material mentioned in that certificate, free of duty‑‑‑Utilization of permissible quantity of raw material was subsequently enhanced by the authority‑‑‑ Final certificate was not issued to the petitioner, but instead provisional certificate was also cancelled without assigning. any reason by respondents/Authority‑‑‑Petitioner assailed the act of Authority before High Court in Constitutional petition‑‑‑High Court remanded case of the petitioner for decision afresh‑‑‑Authority in post‑remand proceedings did not comply with the orders of High Court‑‑‑Consequences‑‑‑Provision of Notification NO.$.R.0.499(1)/95 exempted raw material, sub‑components, and components imported for the use in manufacture of goods specified in the table which were meant primarily for export or supply to industrial units, projects, agencies entitled to import them at concessionary rates from whole of customs duty and sales tax, subject to certain conditions‑‑‑Order of Authority refusing issuance of certificate to the petitioner was not sustainable as the same was against the order of remand which had become final and such order was also based upon misreading of the relevant notification‑‑‑Such an order of the Authority was without lawful authority and of no legal effect.

Mian Nazir Azhar and Ali Sibtain Fazli for Petitioner. ‑ .

A. Karim Malik for Respondents..

Date of hearing: 30th August, 1999.

2000 C L C 34

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

Ch. MUHAMMAD SAEED‑‑‑Appellant

versus

GENERAL TRADERS‑‑‑Respondent

Second Appeal from Order No.66 of 1992, decided on 7th June, 1999.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑‑S. 13(2)(ii)(a)‑‑‑Ejectment of tenant on ground of subletting‑‑‑Landlord contended that after demise of tenant his wife claimed to have been running business in said shop, but it was not possible that widow could run business and that it should be assumed that subletting had taken place‑‑‑Contention was repelled, because for running business, personal presence of tenant was not necessary and that ladies could run business through their servants and employees‑‑‑Not unusual that many ladies were running business in Pakistan‑‑­To assume subletting on ground that successor of tenant was a lady, would not be possible.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑‑S. 13(2)(ii)(a)‑‑‑Subletting of premises‑‑‑Proof‑‑‑Necessary for the landlord to prove that tenant had either sublet premises or had parted with possession‑‑­To prove change of business, some documentary evidence about change of business name, constitution of firm, registration mark and letter pad etc. could have been produced‑‑‑Landlord except producing two witnesses, had not produced any other. evidence and statements of said witnesses was sufficiently rebutted by tenant by producing oral evidence‑‑‑Landlord, in circumstances, had failed to discharge the onus to prove case of subletting or parting with. possession or transfer of lease rights.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑‑S. 15‑‑‑Second appeal‑‑‑Rent Controller as well as Appellate Authority below had considered entire evidence and recorded finding of fact against appellant‑‑‑Such concurrent finding of fact not suffering from any misreading or non‑reading of record, could not be interfered with in second appeal by High Court.

Syed Ahmad Saeed‑Karmani for Appellant. Aurangzeb Mirza for Respondent.

Date of hearing: 7th June, 1999.

2000 C L C 37

[Lahore]

Before Muhammad Akhtar Shabbir, J

JOHN through Legal Heirs‑‑‑Petitioner

versus

ABDUL MAJEED‑‑‑Respondent ._ ~> .

Civil Revision No. 1666 of 1992, decided on 19th May, 1999.

(a) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑‑Ss. 122 & 123‑‑‑Specific Relief Act (I of 1877). Ss.42 & 54‑‑‑Gift‑‑­Validity‑‑‑Requirements‑‑‑Suit for declaration and permanent injunction‑‑­Petitioner/defendant had claimed that suit property was gifted to him by his deceased father with his free consent by appearing before Revenue Officer‑‑­Respondent, who was real brother of petitioner denied claim of petitioner contending that he had been illegally deprived of his legal share and that petitioner had got mutation sanctioned in his favour fraudulently‑‑‑Petitioner had failed to establish on record three requirements of valid gift (i) declaration by donor of property; (ii) acceptance by donee; and (iii) delivery of possession under declaration of gift‑‑‑Property in, dispute was situated in village different to one in which mutation in that respect was sanctioned‑‑‑Mutation should have been sanctioned in the estate where property in dispute was lying‑‑‑Petitioner had also failed to bring on record special circumstances as to why donor had gifted the property to him and deprived his other son, the respondent, of the same‑‑‑Courts below, in circumstances, had rightly rejected claim of petitioner regarding gift of property in his favour.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑Concurrent findings of fact of Courts below, based on evidence on record and not suffering from any misreading/non‑reading of evidence, could not be interfered with by High Court in exercise of its revisional jurisdiction.

G.H. Khan for Petitioner. Khan Zahid Hussain Khan for Respondent.

Date of hearing: 19th May, 1999.

2000 C L C 48 ‑

[Lahore]

Before Malik Muhammad Qayyum, J.

'ASHFAQ AHMAD‑‑‑Petitioner

versus

UNIVERSITY OF AGRICULTURE through

Registrar; Jail Road, Faisalabad

and 2 others‑‑‑Respondents'

Writ Petition No.260 of 1998, decided on 11th October, 1999. '~‑ .

University of Agriculture Faisalabad Act (XII of 1973)‑‑‑

‑‑‑‑Ss. 2(W)(Z), 15(3), 21, 24 & 25‑‑‑University of Agriculture, Faisalabad (University Teachers) Election Statutes, 1973, Statute 23(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Election of Syndicate of University‑‑‑Eligibility of ad hoc employee to be enrolled as voter and contest election‑‑Respondent, who was appointed as an ad hoc lecturer in University having been elected as Member of Syndicate, petitioner who was permanent lecturer in the University had challenged election of respondent contending that ad hoc ' employee of University had no right to be enrolled as voter and he was not eligible to contest election to Syndicate of the University=‑‑Validity‑‑., powers to appoint University teacher though vested in Syndicate which was an executive body of University, but Vice‑Chancellor of said University could, in exercise of his emergency powers, create and fill temporary posts for a period not exceeding six months‑‑‑If contention of respondent that ad hoc employee could also contest Syndicate election, was accepted, it would lead to an anomalous result inasmuch as although tenure of appointment of ad hoc employees could not exceed six months, but he would become .Member of Syndicate and would hold that office for two years‑‑‑Even otherwise neither in University of Agriculture, Faisalabad Act, 1973 nor in University of Agriculture, Faisalabad (University Teachers) Election Statutes, 1973, ad hoc employees .were entitled to participate in election in any manner‑‑‑High Court in exercise of tonstitational jurisdiction declared election of respondent to Syndicate to be without lawful authority and of no legal effect..

Prof. Dr. Muhammad Bilal Sukhera v. Islamia University, Bahawalpur and 6 others PLD 1993 Lah. 474 ref.

Hafiz Tariq Nasim for Petitioner.

Shahan Sarwar for Respondents.

Date of hearing: 28th September, 1999.

2000CLC52

[Lahore]

Before Raja Muhammad Sabir, J

Hafiz QAMAR QAYYUM‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE, KASUR and 2 others‑‑‑Respondents

Writ Petitions Nos.4149 and 4150 of 1999, heard on 2nd July, 1999.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 6 & 35‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for pre‑emption ‑‑‑Petition filed by pre‑emptor under S.35, Punjab Pre‑emption Act, 1991 for restoration was neither pressed by vendor before Trial Court nor before the Appellate Court‑‑‑Effect‑‑‑Said issue having not been raised earlier, could not be allowed to be raised for the first time in Constitutional petition before High Court, for petitioner was estopped by his own conduct to argue case on a point abandoned by him in Courts below‑‑­Petitioner having failed to show any error in order passed by Appellate Court below, said order would not call for interference by High Court in exercise of its Constitutional jurisdiction.

Ch. Abdul Razzaq Kamboh for Petitioner.

Ch. Masood Ahmad Bajwa for Respondents.

Date of hearing: 2nd July, 1999.

2000 C L C 54

[Lahore]

Before Karamat Nazir Bhandari, J

Messrs PIONEER CEMENT LIMITED through

Kanwar Iqbal Talib, duly authorised Director‑‑‑Petitioner '`

versus .

PROVINCE OF THE PUNJAB through

Secretary, Local Government Department, Lahore

and another‑‑‑Respondents

Writ Petitions Nos. 14197 of 1994, 11180, 15555 of 1995, 1046, 1547, 14630, 14631 of 1996 and 7541 of 1997, decided on 6th October, 1999.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Non‑availing of alternate remedy‑‑‑Effect‑‑‑Where decision of petition depended upon the resolution of question of law, such petition was maintainable.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Locus standi to file Constitutional petition‑‑‑Not necessary that a person should have a right in stricto senso‑‑‑Sufficient if it was shown that the performance of a legal duty or action in accordance with law by the respondent had the tendency to benefit the person..

Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 fol.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Failure to raise objection before Authorities at relevant time‑‑‑Effect‑‑‑Petitioner failed to raise objection before Authorities at the relevant, time and assailed the order of the Authorities in the Constitutional petition‑‑‑Validity‑‑‑Such failure did not amount to acceptance of legal position maintained by Authorities‑‑‑Petition was maintainable in circumstances.

(d) Punjab Local Councils (Taxation) Rules, 1980‑‑‑

‑‑‑R. 10(2)‑‑‑Model Schedule, following of‑‑‑Scope‑‑‑To say that Model Schedule will serve as a guideline was different from saying that the Schedule will be followed and implemented.

(e) Words and phrases‑‑‑

‑‑‑‑‑‑Guided from something" and "acting in accordance with the same"‑‑‑Two different concepts.

(f) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑Ss. 137, 138, 139 & 144‑‑‑Punjab Local Councils (Taxation) Rules, 1980, Rr.4 & 5‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Increase in Local Council Tax‑‑‑Non‑filing of objection at relevant time against such increase‑‑‑Effect‑‑‑Where no objection was filed against quantum of increase, the same could not be examined in Constitutional petition.

(g) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑Ss. 137 & 139‑‑‑Punjab Local Councils (Taxation) Rules, 1980, R.10‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Model Tax ,Schedule‑‑‑Export tax, recovery of‑‑‑Changes made in Model Tax Schedule by Zila Council‑‑‑Validity‑‑‑Date on which obliging/binding nature of the Schedule came to an end, changes made by the Zila Councils, in Model Schedule, from the date onwards, could not be said to be without lawful authority‑‑‑Where again Model Tax Schedule was issued, Zila Councils were again obliged to follow the same and recover the export tax on the rates provided in the Schedule.

Zila Council, Sheikhupura v. Messrs Mian Tyre & Rubber Co. (Pvt.) Ltd., Lahore Cantt. and others PLD 1994 SC 212 distinguished.

Dandot Cement Co. Ltd. v. Deputy Commissioner/Collector and others PLD 1997 Lah. 533 and Qamar‑uz‑Zaman v. Zilla Council, Bahawalpur and others 1990 MLD 1748 ref.

Syed Najaf Hussain Shah for Petitioner (in Writ Petition No. 14197 of

1994)..

Muhammad Amin Lone, Asstt. A.‑G., Punjab for Respondent No.l (in Writ Petition No. 14197 of 1994).

Dr. Mohy‑ud‑Din Qazi for Respondent .No.2 (in Writ Petition No. 14197 of 1994).

Dates of hearing: 22nd June; 31 st August and 1 st September, 1999.

2000 C L C 63

[Lahore]

Before Ch. Ijat Ahmad, J

Mst. SHARMAN BEGUM and others‑‑‑Petitioners

versus

MUHAMMAD SHAHBAZ and others‑‑‑Respondents

Civil Revision No.369 of 1998, decided on 14th October, 1998.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑0. VII, R.11‑‑‑Rejection of plaint‑‑‑While considering question of cause of action for rejection of plaint under O.VII, R.11, C.P.C. Court has only to apply its mind to the facts given in the plaint and not to the other matters and it has to be presumed that any allegation made in plaint was true.

PLD 1976 Kar. 21 ref.

(b) Words and phrases‑‑‑

---------“Cause of action"‑‑‑Meaning and scope‑‑‑"Cause of action" would mean the whole bundle of material facts which it was necessary for the plaintiff to prove in order to entitle him to immediate judgment‑‑‑ "Cause of action" would mean the infringement of the right which furnished occasion for the action‑‑‑Contents of plaint would reveal cause of action.

PLD 1965 Lah. 172 ref:

(c) Constitution of Pakistan (1973)‑‑‑

_‑‑‑Art. 2A‑‑‑Injunctions of Islam‑‑‑Decision on rights of parties‑‑‑Rights .of. parties must be decided on merits instead of technicalities.

PLD 1989 SC 532 ref.

Zahid Hussain Khan for Petitioners Sh. Abdul Aziz for Respondents.

2000 C L C 66

Before Mian Allah Nawaz, J

Mst. ALLAH RAKHI and 2 others‑‑‑Petitioners

versus

DEPUTY SETTLEMENT COMMISSIONER‑=‑Respondent

Writ Petition No.52/R of 1981, decided on 5th August, 1999.

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑S. 10‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss.2 & 3‑‑‑Constitution of Pakistan (1973), Art.l99‑‑‑Constitutional petition‑‑‑Transfer of property‑‑‑Cancellation of transfer‑‑‑Permanent Transfer Deeds issued in favour of petitioners in respect of property in dispute, were challenged by respondent in their application before Deputy Settlement Commissioner in which respondents/applicants had alleged that they were auction‑purchasers of property in dispute and that transfer documents in favour of petitioners were sham and bogus‑‑‑Deputy Settlement Commissioner issued notices to petitioners to explain as to how they had come into possession of property in dispute, but petitioners instead of appearing before Deputy Settlement Commissioner in compliance of notices, filed civil suits against order of Deputy Settlement Commissioner which suits were finally dismissed and appeal against dismissal of suits was also dismissed‑‑‑Deputy Settlement Commissioner after affording petitioners opportunity to adduce evidence in proof of their claim, investigated matter of transfer of property in favour of petitioners and concluded that documents of transfer issued in favour of petitioners were forged, bogus and fraudulent and that property in dispute had already been auctioned in favour of respondents‑‑‑Deputy Settlement Commissioner being Custodian of Settlement Record, was competent to examine said record and decide whether same was forged‑‑‑Order of Deputy Settlement Commissioner based on evidence on record, was correct, just and fully commensurate with ground‑realities of the case‑‑‑Such order passed after affording opportunity of hearing to petitioners, could not be interfered with by High Court in Constitutional petition.

Muhammad Baran ,and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691; S.K. Masood and 3 others v. Special Committee through Member, Board of Revenue and others 1990 CLC 1174; S.K. Masood and 3 others v. Special Committee through Member, Board of Revenue (Settlement and Rehabilitation) and Secretary to Punjab Government and others 1990 CLC 1174;. Shamrooz Khan v.CLC Muhabat Khan 1989 SCMR 819; Cooper v. Wandsworth Board of Works (1963) 14 CB (NSK&L 366); Dawood Cotton Mills Ltd. v. Guftar Shah and another PLD 1981 SC 225 and The Chairman, Employees' Old‑Age Benefit Institution and others v. M. Ismail Munawar 1984 SCMR 143 ref.

Bashir Ahmad Ansari for Petitioner.

Malik Muhammad Afzal and Samad Mehmood for Respondents.

Date of hearing; 29th July, 1999.

2000CLC71

[Lahore]

Before Syed Jamshed Ali, J'

MUHAMMAD BOOTA‑‑‑Petitioner

versus

BASHIR AHMAD‑‑‑Respondent

Civil Revision No.306/D of 1997, heard on 3rd November, 1998.

Civil Procedure Code (V of 1908)‑‑

‑‑‑‑Ss. 9 & 115‑‑‑Suit for damages and mesne profits ‑‑‑Maintainability‑‑­Revisional jurisdiction, exercise of‑‑‑Plaintiff/respondent had purchased land in dispute, but defendant/petitioner not only refused 'to deliver possession of disputed land to plaintiff/respondent, but also refused to give share of produce to him‑‑‑Plaintiff/respondent filed suit for damages and mesne profits which was resisted by defendant/petitioner contending that Civil Court had no jurisdiction in the matter as same fell exclusively within jurisdiction of Revenue Authorities‑‑‑Contention of defendant/petitioner was repelled because the same was not only not raised before Courts below, but it was also not pleaded that the defendant/petitioner was a tenant under plaintiff/respondent‑‑‑Suit for mesne profits and damages for use and occupation of land in dispute filed by plaintiff/respondent was rightly found to be maintainable before Civil Court, concurrently by Courts below‑‑‑Findings of Courts below based on facts and evidence on record, could not be interfered with by High Court in exercise of its revisional jurisdiction.

Sh. Zia‑ud‑Din Ahmad Qamar for Petitioner.

Ch. Abdul Ghani for Respondent.

Date of hearing: 3rd January, 1998.

2000 C L C 73

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD NAEEM‑‑‑Petitioner

versus

DISTRICT COUNCIL, PAKPATTAN‑‑‑Respondent

Writ Petition No.3707 of 1999, heard on 7th June, 1999.

Punjab Local Councils (Lease) Rules, 1990‑‑‑

‑‑‑‑R. 7‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Contract to collect tax on transfer of immovable property‑‑‑Dispute as to such contract‑‑‑Arbitration clause in the agreement of contract‑‑‑Effect‑‑‑Petitioner who was granted contract for collection of tax on transfer of immovable property, had prayed in his Constitutional petition that action of Authority in claiming extra amount regarding period during which petitioner was not handed over charge for recovery of tax be declared illegal‑‑‑Validity‑‑‑Contract was granted to petitioner under agreement which had provided a specific clause for reference of dispute between parties to arbitration‑‑‑Parties, as per agreement, having agreed for arbitral mode for resolution of dispute, petitioner, who had agreed for such arbitration, was bound by terms of agreement‑‑‑Petitioner, in circumstances, had adequate remedy available to him for redressal of his grievance‑‑‑Constitutional petition was not maintainable in view of arbitration clause in the agreement arrived at between parties.

Mumtaz Ahmed v. Zila Council, Sahiwal through Administrator and others 1999 SCMR 117 ref.

Mian Arshad Latif for Petitioner. Ch. Shah Muhammad Din for Respondent.

Date of hearing 7th June, 1999.

2000 C L C 76

[Lahore]

Before Mian Allah Nawaz and Nasim Sikandar, JJ

GHULAM ALI SHAH and 4 others‑‑‑Petitioners

versus

CHAIRMAN, FEDERAL LAND COMMISSION, ISLAMABAD

and 5 others‑‑‑Respondents

Writ Petition No. 13552 of 1998, decided on 10th June, 1999.

(a) Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑

‑‑‑‑Para. 24‑‑‑Entitlement to retain land‑‑‑Object‑‑‑Provisions of Para. 24 of Land Reforms Regulation, 1972 were enacted to determine the entitlement to retain agricultural land within permissible limits as was ordained by Para.24 of the Regulation‑‑‑Provision of Para.24, however, had no concern with the nature or validity of transaction inter se between the parties.

Raj Bibi and another v. Additional Chief Land Commissioner and another PLD 1975 Lah. 408 ref.

(b) Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑

‑‑‑‑Para. 24‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Recovery of land sold by petitioner on the plea that such transaction was violative of Para.24 of the Regulation‑‑‑Validity‑‑‑Provision of Para.24, Land Reforms Regulation, 1972 having no concern with the nature or validity of transaction inter se between the parties such plea was untenable and could not help the petitioner to recover land already sold by him.

(c) Constitution of Pakistank1973)‑‑‑

.‑‑‑‑Arc. 199‑‑‑Constitutional jurisdiction‑‑‑Object‑‑‑Purpose of the jurisdiction is to foster justice between the parties and not to help those persons who come to Court with unclean hands.

Haji Noor Muhammad v. Ghulam Masih Gill PLD 1965 (W.P.) BJ 1 rel.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Scope‑‑‑While exercising Constitutional jurisdiction,, High Court does not act as a Court of appeal` to correct legal or factual irregularities committed by the lower forums:

The Commissioner and another v. Mian Sher Muhammad 1972 SCMR 395 and Muhammad Hussain Munir v. Sikandar and °ethers PLD 1974 SC 139 rel.

Zaka‑ur‑Rehman for Petitioners.

2000CLC82

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

ZAKA ULLAH‑‑‑Appellant

versus

SARDAR KHAN‑‑‑Respondent

Regular Second Appeal No.799 of 1978, decided on 5th October, 1999.

Civil Procedure Code (V of 1908)‑--

‑‑‑‑0. VII, R. 11(b)(c) & O.XLI, R.3‑‑‑Punjab Pre‑emption Act (I of 1913). S.15‑‑‑Second appeal‑‑‑Deficiency in court‑fee‑‑‑Lower Appellate Court rejected the memorandum of appeal on the ground of deficiency in court‑fee‑‑‑No time was allowed by the Lower Appellate Court for making up such deficiency‑‑­Validity‑‑‑Memorandum of appeal was not to be so rejected unless opportunity was provided to supply the required coup‑fee and at least one opportunity was to be given to supply the deficient court‑fee before rejection of the memorandum of appeal‑‑‑Provisions of O.VII, R.11(b)(c) of C.P.C. applicable to plaint were also applicable to memorandum of appeal‑‑‑Order of the Lower Appellate Court rejecting the memorandum of appeal was set aside in circumstances.

Balwant Singh v. Jagjit Singh AIR 1947 Lah. 210; Muhammad Nawaz Khan and another v Makhdoom Syed Ghulam Mujtaba PLD 1970 SC 37; Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 and Syed Manzoor Hussain Ghazi v. Syed Ejaz Hussain Shah, Settlement Commissioner, Lahore Division, Lahore PLD 1972 Lah. 743 ref.

M. Iqbal for Appellant.

C.M. Sarwar for Respondent.

Date of hearing: 29th September, 1999.

2000 C L C 85

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

Mrs. MUHAMMAD SHAFI through Agent‑‑‑Appellant

versus

SULTAN AHMED ‑‑‑Respondent

First Appeal from Order No.22 of 1994, heard on 28th September, 1999.

(a) Civil Procedure Code (V of 1908)‑‑--

‑‑‑‑Ss. 47 & 145‑‑‑Contract Act (IX of 1872), S.126‑‑‑Decree, enforcing of‑‑­Liability of surety/guarantor‑‑‑Scope‑‑‑Decree‑holder could successfully enforce decree against judgment‑debtor or in alternative against guarantor‑‑‑Liability of guarantor being co‑extensive with judgment‑debtor, decree‑holder had a right to enforce the decree straightaway against the surety.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXI, R. 58‑‑‑Second objection petition‑‑‑Validity‑‑‑Where earlier objection petition against order of attachment of property was dismissed by executing Court, second petition on the similar plea was not maintainable.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 47, 145 & 104‑‑‑Appeal, competency of‑‑‑Execution proceedings against surety‑‑‑Validity‑‑‑Surety under provisions of S.145, C.P.C. was deemed as party and objector within meaning of S.47, C.P.C.‑‑‑Appeal under S.104, C.P.C. against order deciding objection regarding executability of decree against surety was maintainable.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 12(2), 36 & O.XXI, R.10‑‑‑Execution of decree‑‑Pendency of application under S.12 (2), C.P.C.‑‑‑Effect‑‑‑Where no stay against execution of decree was passed, mere pendency of application under S.12(2), C.P.C. would not suspend the operation of decree passed by Court of competent jurisdiction.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 47, 1!45 & 104‑‑‑Contract Act (IX of 1872), S.126‑‑‑Recovery of decretal amount from surety‑‑‑Respondent stood surety in objection petition filed in execution proceedings‑‑‑Objection petition was dismissed and respondent was discharged of the surety by the Executing Court‑‑‑Validity‑‑‑In absence of any proof as to discharge of liability by the judgment‑debtors the executing Court ,could legally proceed against the surety for the recovery of the amount to the extent of decree‑‑‑Order of the Executing Court suffered from material illegality, perversity of reasoning and error of jurisdiction, hence the same could not sustain‑‑‑Order of discharge of surety was set aside in circumstances.

Muhammad Naveed Hashmi for Appellant. Ahmad Saeed Khan and Athar Rehman Khan for Respondent.

Date of hearing: 28th September, 1999.

2000 C L C 97

[Lahore]

Before Riaz Kayani, J

Mst. MOTIAN BIBI‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE, ARIFWALA

and 2 others‑‑‑Respondents

Writ Petition No.5207 of 1998, decided on 24th September, 1998.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Guardians and Wards Act (VIII of 1890), S.25‑‑‑Constitutional jurisdiction, exercise of‑‑‑Petitioner had failed to show that Courts below had misread or ignored some important piece of evidence which went to the root of case and also was unable to point out any irregularity‑‑‑Well‑reasoned judgments of Courts below could not be interfered with by High Court in exercise of Constitutional jurisdiction.

Muhammad Yousaf v. Anis Bibi PLD 1998 Lah. 67; Mst. Nighat Firdous v. Khadim Hussain 1998 SCMR 1593 and Mst. Nazir v. Hafiz Ghulam Mustafa and others 1981 SCMR 200 ref.

Syed Kabeer Mahmood for Petitioner. Mian Fazal Raful Joiya for Respondents

2000 C L C 108

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

MUHAMMAD IQBAL‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE, BHALWAL

and 2 others‑‑‑Respondents

Writ Petition No. 17738 of 1997, heard on 6th October, 1998.

(a) Guardians and Wards Act (VIII of 1890)‑‑‑

---S. 25‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Custody of minors‑‑‑Welfare of minors supreme consideration‑‑‑After death of mother, custody of minors was with maternal‑grand parents‑‑‑Petitioner, father of minors, claimed custody after four years‑‑‑Father neither provided maintenance, nor cared to meet minors‑‑‑Only lady in house of father, to look after minor, was his mother who herself was an old lady‑‑‑Father was in service and had no time to look after minors‑‑‑Held, it would be dangerous to disturb existing custody of minors and to place them at mercy of an old lady who was unable to take care of herself‑‑‑Petition was dismissed in circumstances.

(b) Muhammadan Law‑‑‑

‑‑‑‑Guardianship‑‑‑Custody of minors‑‑‑Death of mother of minor ‑‑‑Maternal­grandmother can legitimately claim custody of minors.

Mst. Nighat Firdous v. Khadim Hussain 1998 SCMR 1593 rel.

(c) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑ & 25‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Custody of minors‑‑‑Order of Appellate Court‑‑‑Interference in Constitutional jurisdiction‑‑‑Where no misreading of record or error of law was shown, no ground was made out for interference in Constitutional jurisdiction by High Court.

Ch. Muhammad Ashraf Azeem for Petitioner.

Mian Subah Sadiq Wattoo for Respondent.

Date of hearing: 6th October, 1998.

2000 C L C 117

[Lahore]

Before Amir Alam Khan, J

MUHAMMAD BASHIR‑‑‑Petitioner

versus

AHMED NAWAZ and others‑‑‑Respondents

Writ Petitions Nos. 13209 and 13508 of 1998, heard on 9th July, 1998.

(a) Punjab Local Councils (Elections) Rules, 1979‑‑‑

‑‑‑‑8. 40(5)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Election through only one polling station‑‑‑Election Tribunal had restrained successful candidate from acting as a Councillor‑‑‑Results of all candidates was reflected in Form No.XII duly signed by Assistant Presiding Officer‑‑‑While other contesting candidates had a result, of three candidates reflected in Form No.XIII duly signed by Presiding Officer‑‑‑Allegation was, that other candidates had abducted Presiding Officer and had got a fake result Form‑‑‑Effect‑‑‑Result ‑of single polling station constituency was to be prepared in Form No.XII‑‑‑No explanation having been ‑liven as to why result produced by other candidates was prepared in Form No.X11I instead of Form No.XII which was meant for single polling station as required by R.40(5) of the Punjab Local Councils (Elections) Rules, 1979‑‑‑Order restraining the successful candidate to act as Councillor was declared to be without lawful authority.

(b) Punjab Local Councils (Elections) Rules, 1979‑‑‑

‑‑ R. 40(5)‑‑‑Preparation of result by Presiding Officer‑‑‑Result of single polling station constituency has to be prepared in Form No.XII and that of more than one polling stations to be prepared in Form No.XIII.

(c) Punjab Local Government Ordinance (VI of 1979)‑--

‑‑‑‑S. 37‑‑‑Restraining a returned candidate to act as a Councillor‑‑‑Effect‑‑‑No proceedings can be rendered invalid even if some person is held to be not entitled to act as a Councillor, sit as such, vote or otherwise take part in proceedings‑‑‑Election Tribunal cannot disenfranchise a constituency.

S.M. Masud ‑for Petitioner.

Respondents Nos. 1, 3, 4, 6 and 7 in person.

Zahid Hussain Khan for Respondent No.2.

Zulfiqar Hussain Bokhari, A.A.‑G. for Respondent No.5.

Date of hearing: 9th July, 1998.

2000 C L C 126

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

JAVED IQBAL‑‑‑Appellant

versus

S.M. KHURAM WASTI, ADVOCATE‑‑‑Respondent

Second Appeal from Order Nos.70 and 71 of 1996, heard on 30th March, 1998.

(a) Administration of justice‑‑‑

‑‑‑‑ Law had always favoured decision on merits, rather than indulgence in technicalities‑‑‑Non‑suiting of parties, by strict adherence to technicalities, unless insurmountable, was not approved.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(2)(i)(ii)‑‑‑Default in payment of rent and allegation of subletting‑‑­Closing of evidence of tenant‑‑‑Effect‑‑‑Rent Controller, after closing evidence of tenant, did not record any independent reasons for findings against issues already framed‑‑‑Evidence had already been led by landlord who was under legal obligation to prove existence of default and also plea of subletting‑‑‑Mere fact that evidence of tenant was closed, would not mean that allegations raised by landlord, would automatically stand proved‑‑‑Since evidence had already been led, it was duty of Rent Controller to appraise entire evidence and then to record findings supported by independent reasons on the allegations of default and subletting‑‑‑Rent Controller did not deal with evidence nor considered any of the oral as well as documentary evidence and proceeded to assume default and sub­tenancy with the remarks that evidence of tenant having been closed, he could not prove that he was not a defaulter‑‑‑Order passed by Rent Controller, was perfunctory and did not satisfy requirements of law.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 15‑‑‑Appeal‑‑‑Disposal of‑‑‑Requirements‑‑‑Failure to adhere to such requirements‑‑‑Effect‑‑‑Order passed in appeal was indicative of fact that Appellate Authority did not reappraise evidence nor considered merits of decision rendered by Rent Controller nor attempted to determine as to whether findings of default and subletting of Rent Controller could sustain on evidence led by landlord‑‑‑Appellate Authority proceeded to dismiss appeal after observing that tenant could not produce evidence despite being given certain opportunities‑‑‑Appellate Authority under S.15 of West Pakistan Urban Rent Restriction Ordinance, 1959 was required to decide appeal by re‑appraising entire evidence as same was in fact a rehearing of entire case‑‑‑Order of Rent Controller, though was challenged seriously on the ground that same was not reflected by evidence on record and that Rent Controller had not decided issue involved by any independent reason, but Appellate Authority, without taking .into consideration evidence on record or defects in order of Rent Controller, proceeded to dispose of appeal mechanically‑‑‑Disposal of appeal, in the manner adopted by Appellate Authority could not be said to be lawful and proper disposal of appeal. [p. 132] C

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 5‑A‑‑‑Enhancement of rent‑‑‑Though 25 % enhanced rent in terms of S.5‑A of West Pakistan Urban Rent Restriction Ordinance, 1959, would become automatically due, but for seeking ejectment of tenant on that ground on plea of non‑payment of 25 % enhanced amount of rent, landlord had to allege that tenant was served with a notice and that despite notice tenant had failed to increase rent‑‑‑In absence of any notice, wilful default could not be assumed‑‑‑Mere non­payment of statutory increase of 25 % rent without notice, could not per se result in inference of wilful default.

Inayat Ullah Chaudhry for Appellant.

Respondent in person.

Date of hearing: 30th March, 1998.

2000 C L C 150

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

PROVINCE OF PUNJAB through Collector, Bhakkar‑‑‑Petitioner

versus

RULIA‑‑‑Respondent

Civil Revision No.3399 of 1994, heard on 30th September, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XX, R.5‑‑‑Judgment not containing .reasons for decision on each issue separately‑‑‑Effect‑‑‑Lower Appellate Court decided together issues relating to Limitation‑‑‑Contention raised by petitioner that it was not an issuewise finding was not tenable.

Ali Muhammad v. Muhammad Hayat arid others 1982 SCMR 816 ref.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Limitation‑‑‑Anybody whose ownership or possessory rights were interfered or threatened, might come to the Civil Court at any time when the same stood threatened‑‑‑No question of limitation arose in such cases.

Mohib Ali (Mahboob Ali) v. Amanullah Khan and 3 others 1981 CLC 251 rel.

(c) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Condonation of delay‑‑‑Non‑mentioning of sufficient cause for delay‑‑­Cause for delay as given by the petitioner, a Government Department, was misplacement of relevant files and papers‑‑‑Validity‑‑‑Application for condonation of delay not showing a sufficient ground and explanation for the period of delay, delay was not condoned and application was dismissed accordingly.

Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Limited 1990 SCMR 1059 ref.

Ch. Nizam‑ud‑Din Arif for Petitioner.

Qazi Khurshid Alam for Respondent.

Date of hearing: 30th September, 1999.

2000 C L C 154

[Lahore]

Before Nasim Sikandar, J

MUHAMMAD ASLAM‑‑‑Petitioner

versus

MUHAMMAD IBRAHIM and another‑‑‑Respondents

Civil Revisions Nos.561, 562, 563, 564, 565 and 566 of 1991, decided on 26th August, 1999.

(a) Malicious prosecution‑‑‑

‑‑‑‑"Malice"‑‑‑Connotation‑‑‑Malice is not spite or hatred against any individual but of malus animus and denotes the working of improper and indirect motive‑‑­Proper motive for a prosecution is the desire to secure the ends of justice and it should be shown that the plaintiff is not actuated by such desire but by his personal feelings.

Abdul Rauf v. Abdul Razzak and another PLD 1994 SC 476 ref.

(b) Malicious prosecution‑‑‑

‑‑‑‑ Burden of proof‑‑‑Damages‑‑‑Petitioner/defendant got a criminal case registered against the plaintiffs‑‑‑Plaintiffs were arrested by police, they remained under detention for five days; they were released on bail and finally plaintiffs were discharged by Trial Court‑‑‑Suits for damages were filed against the defendants wherein the plaintiffs brought home enmity between the parties the arrest and final acquittal read with the reasons of the acquittal order of the Magistrate‑‑‑Defendant did not appear in the witness‑box to stand the test of cross‑examination‑‑‑Trial Court dismissed the suits whereas the Lower Appellate Court found that plaintiffs were prosecuted without any reasonable cause and as such criminal charges were based upon malice and suits of the plaintiffs were partly decreed‑‑‑Validity‑‑‑Where plaintiffs had proved their case it was for the defendant to establish the reasonable and probable cause to prosecute‑‑‑High Court declined interference in circumstances.

Abrath v. The North Eastern Railway Company Court of Appeal Queen's Division Bench, dated 22nd June, 1883; Mst. Khair‑un‑Nisa v. M. Ishaque PLD 1972 SC 25; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1959 (W.P.) Pesh. 81; Abdul Rauf v. Abdul Razzak and another PLD 1994 SC 476 and Sub. (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700 ref.

Maqbool Elahee Malik for Petitioner. Miss Farzana Shehzad Khan for Respondent.

Date of hearing: 8th July, 1999.

2000 C L C 159

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

MUHAMMAD ISHAQ‑‑‑Petitioner

versus

ABDUL GHANI‑‑‑Respondent

Civil Revision No.715‑D of 1983, heard on 5th October, 1999.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 36‑‑‑Jurisdiction of Civil Courts‑‑‑Jurisdiction of Civil Court is barred under provisions of S.36, Colonization of Government Lands (Punjab) Act, 1912, in any matter in which the Collector, Additional Commissioner or the Board of Revenue is empowered to dispose of the matters and those matters stand disposed of within their lawful authority and exclusive jurisdiction‑‑‑Civil Courts shall not interfere or entertain disputes falling within the hierarchy of the Revenue Courts.

Noor Karim v. The State PLD 1975 (Rev.) 168; Jamal Din v. The Province of Punjab and others 1985 CLC 2387; Province of Punjab v. Allah Din 1989 CLC 2495; Nawab Din v. Province of Punjab 1986 MLD 921; Abdul Rahim and others v. Member (Colonies). Board of Revenue and others 1989 MLD 3148; Muhammad Ashraf v. Board of Revenue, West Pakistan and another PLD 1968 Lah. 1155; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 and Alam Sher through Legal Heirs v. Muhammad Sharif and 2 others 1998 SCMR 468 ref.

Ch. Shehbaz Khurshid for Petitioner. Masood Zakriya for Respondent

Dates of hearing: 4th and 5th October 1999,

2000 C L C 165

[Lahore]

Before Syed Zahid Russain, J

MUHAMMAD IBRAHIM and another---Petitioners

versus

JALAL DIN---Respondent

Civil Revision No. 165.6-D of 1993, heard on 29th September, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 96 & 99‑‑‑Appeal‑‑‑Non‑impleading necessary party within the period of limitation‑‑‑Effect‑‑‑Where any necessary party was left out in appeal, the same could not be allowed to be impleaded after the period of limitation.

Mst. Mehr Nishan v. Mst. Gulzar Begum and 2 others 1986 CLC 1706; Muhammad Suleman v. Abdul Rashid and 13 others PLD 1987 Lah. 387; Mehrajuddin represented by his Heir and others v. The Settlement Authorities and another 1982 SCMR 859; Sakhi Muhammad and 10 others v. Noor Muhammad and 28 others PLD 1988 SC (AJ&K) 156; Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46; Ghulam Muhammad and others v. Mehtab Beg and others 1983 SCMR. 849 and Sarshar Ali v. Roberts Cotton Association Ltd. and another PLD 1963 SC 244 rel.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 96, 99 & O.XLI, R.1‑‑‑Appeal‑‑‑Pro forma defendant left out from memorandum of appeal‑‑‑Dismissal of appeal on such ground ‑‑‑Validity‑‑­Appeal could not be dismissed for the simple reason that a pro forma defendant was left out from memorandum of appeal.

Munshi Ram v. Abdul Aziz AIR 1943 Lah. 252; Muhammad Amin v. Khamisa and another PLD 1956 Lah. 242 and Nagina Singh v. Jiwan Singh and others AIR 1925 Lah. 87 rel.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 96, 99 & O. XLI, Rr.1, 20, 33‑‑‑Appeal‑‑‑Non‑impleading of pro forma defendant in appeal within the period of limitation‑‑‑Appeal of the petitioner was dismissed by Lower Appellate Court for non‑impleading of pro forma defendant‑‑‑Validity‑‑‑Where no relief was claimed from the pro forma defendant, such pro forma defendant could not be regarded to be a necessary party to the appeal so as to render the appeal incompetent in absence of such party‑‑‑Where such pro forma defendant was considered to be a proper party, Lower Appellate Court had ample powers under O.XLI, Rr.20 & 33 of C.P.C. to permit such a party to be impleaded at any stage of the appeal‑‑‑Appeal could not have been dismissed for such reason‑‑‑Dismissal of appeal was wrong and illegal.

Sardar Muhammad and 2 others v. Haider Zaman and 3 others PLD 1993 Pesh. 81 and District' Council, Tharparker v. Syed Muhammad Wali and another 1998 CLC 911 ref.

Sh. Abdul Aziz for Petitioners.

Rana Nasrullah Khan for Respondent.

Date of hearing: 29th September, 1999.

2000 C L C 170

[Lahore]

Before Ali Nawaz Chowhan, J

BIAFO INDUSTRIES‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN‑‑‑Respondent

Writ Petition No. 824 of 1992, heard on 11th August, 1999.

(a) Taxation‑

‑‑‑‑ Taxation is that inherent power of Government to raise funds, with which it promotes general welfare and looks after the protection of citizens‑‑‑Tax, in fact, is a charge to pay the cost of Government without regard to special benefits conferred.

State v. Kromarek 52 NW 2d 713, 715, 78 ND 769 and In re: Shurtz's Will, 46 NW 2d 559, 562, 242 Iowa 448 rel.

(b) Words and phrases‑‑‑

......Fee" and "tax"‑‑‑Distinction‑‑‑Fee is meant to defray the cost of particular services rendered to particular individuals‑‑‑Tax is levied as a part of common burden or general revenue while a fee is a payment for special benefit or privilege‑‑‑Tax is imposed for public purposes and is not supported by any consideration of service rendered in return, whereas a fee is levied in view of services rendered and there is an element of quid pro quo between the payer of the fee and the authority which imposes the same‑‑‑In the matter of fee the Government has always to offer an explanation vis‑a‑vis the reasonableness and as long there is reasonableness the requirements of quid pro quo get satisfied.

Abdul Majid and another v. Province of East Pakistan and others PLD 1960 Dacca 502; Australian's case 60 CLC 263; Mahboob Yar Khan PLD 1975 Lah. 748; Sh. Muhammad Ismail's case PLD 1966 SC 388 and AIR 1963 SC 966 rel.

(c) Imports and Exports (Control) Act (XXXIX of 1950)‑‑‑

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (19731, Art.199‑‑‑Constitutional petition‑‑­Levy of import licence fee‑‑‑Industrial concern of the petitioner was situated in an area which was declared to be a rural area and 2% ad valorem licence fee was charged‑‑‑At the time when petitioner applied for an import licence for machinery the area of the petitioner had been excluded from such definition of rural area and 6 % ad valorem licence fee was demanded from the petitioner‑‑­Such 6 % fee was paid by petitioner under protest‑‑‑After issue of the licence and prior to import of machinery once again the area of the petitioner was declared as rural area and the rate of 2 % ad valorem licence fee, instead of 6 % , was trade applicable‑‑‑Petitioner demanded for the refund of excess fee which was refused by the Government‑‑‑Validity‑‑‑Case of the petitioner had not been rendered as a past and closed transaction at the time of declaring the area as rural area once again‑‑‑Machinery of petitioner was yet not imported meaning thereby that whatever services were to be rendered by the Government, were yet to be rendered‑‑‑Government was to charge the licence fee in accordance with the time frame when it rendered the service for which the fee was being taken‑‑‑Rate of 2 % was applicable to the petitioner in circumstances.

Rahimullah Khan and 65 others v. Government of N.‑W.F.P. 1990 CLC 550; The Indian Mica and Micanite Industries Ltd. v. The State of Bihar and others AIR 1971 SC 1182; Ayaz Taxtile Mills Ltd. v. Federation of Pakistan PLD 1993 Lah. 194; Abdul Majid and another v Province of East Pakistan and others PLD 1960 Dacca 502; Noon Sugar Mills Ltd. v. Market Committee and others PLD 1989 SC 449; Kewal Krishan v. State of Punjab AIR 1980 SC 1008 and Rahimullah Khan and 65 others v. Government of N.‑W.F.P. 1990 CLC 502 ref.

Salman K. Cheema for Petitioner.

Chaudhri. Afrasiab Khan, Standing Counsel for the Federal Government.

Dates of hearing: 10th and 11th, August, 1999.

2000 C L C 184

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi and Muhammad Akhtar Shabbir, JJ

Haji ABDUR REHMAN‑‑‑Appellant

versus

NIAZ ALI through Legal Heirs‑‑‑Respondent

Regular First Appeals Nos. 166 of 1989 and 211 of 1991, decided on 11th June, 1999.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 55‑‑‑Agreement of sale‑‑‑Time fixed in the agreement‑‑‑Time of the essence of contract‑‑‑Applicability‑‑‑Where time was not treated as of the essence of the contract, subsequently same could. not be pleaded to be a primary condition for the enforcement of the agreement.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 55‑‑‑Agreement of sale‑‑‑Time when the essence of contract‑‑‑Breach of said condition‑‑‑Effect‑‑‑Where time was of the essence of the contract, breach of such condition would automatically result in recission of the contract.

(c) Specific Relief Act (I of 1877)‑‑‑

‑‑‑S. 12‑‑‑Contract Act (IX of 1872), S.55‑‑‑Specific performance of agreement to sell‑‑‑Unilaterally fixing time for the enforcement of the contract ‑‑‑Validity‑‑­Where time was of the essence of the contract, no party to the contract could unilaterally fix any other time for the enforcement of the same and subsequently, resiling from the commitments by assuming the time as essence of the contract

Abdul Hamid v. Abbas Bhai‑Abdul Hussain Sodawaterwala PLD 1962 SC 1 ref.

(d) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 10‑‑‑Sale‑deed, expenses of‑‑‑Duty to pay‑‑‑Expenses including stamp paper, deed writer expenses, registration fee and Local Council fee are ordinarily borne by the vendee but the duty to pay taxes due against the property subject‑matter of sale and also to pay gain tax, if in force, always rest on the vendor.

(e) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Specific performance of agreement to sell‑‑ Appellant/vendee had proved execution of agreement of sale, payment of earnest money, readiness and willingness to perform obligations under the agreement, filing of application before the Sub‑Registrar and appearance before him for getting the sale‑deed attested and having filed the suit immediately after the notice‑‑‑Trial Court dismissed suit of the appellant/vendee on assumption that the appellant/vendee was intending to enforce different terms‑‑‑Validity‑‑‑Such refusal to grant specific performance was not warranted and the appellant/vendee was entitled to the exercise of discretion by the Trial Court in his favour‑‑‑Judgment and decree of the Trial Court was set aside by High Court in appeal.

(f) Equity‑‑‑

‑‑‑‑One who seeks equity must do equity.

Ch. Khurshid Ahmad for Appellant.

Mehdi Khan Chohan for Respondent.

Date of hearing: 9th June, 1999.

2000 C L C 191

[Lahore]

Before Ch. Ijaz Ahmad and Syed Najam‑ul‑Hassan Kazmi, JJ

MUBASSAR HUSSAIN CHEEMA, ADVOCATE‑‑‑Appellant

versus

NASRULLAH KHAN and 3 others‑‑‑Respondents

Intra‑Court Appeal No.703 in Writ Petition No..14208 of 1998, heard on 2nd October, 1999.

(a) Punjab Local Councils (Election Petitions) Rules, 1979‑‑‑

‑‑‑‑R. 3‑‑‑Election petition, filing of‑‑‑Proceedings before Election Authority prior to publication of result in official Gazette‑‑‑Validity‑‑‑Election petition can competently be filed under R.3, Punjab Local Councils (Election Petitions)­Rules, 1979, only after the result has been published in the official Gazette and before that, proceedings before the Election Authority would not be competent.

1981 SCMR 919 ref.

(b) Punjab Local Councils (Election Petitions) Rules, 1979‑‑‑

‑‑‑‑R. 3‑‑‑Election petition‑‑‑Limitation‑‑‑Date of declaration of result by Deputy Commissioner‑‑‑Relevance‑‑‑Such declaration of result has no nexus with the commencement of date for the purpose of limitation to file election petition or for the purpose of maintaining election petition.

James Ilyas Masih v. Punjab Local Councils Election Authority and 3 others 1981 CLC 237 ref.

(c) Punjab Local Councils (Election Petitions) Rules, 1979‑‑‑

‑‑‑‑R. 3‑‑‑Premature election petition‑‑‑Filing of second petition ‑‑‑Scope‑‑­Where the cause matured during the pendency of a premature petition, the petitioner had a right to insist that the case be decided on merit instead of returning the same on technical objection of having been filed before the accrual of cause of action‑‑‑Filing of second petition after maturity of the cause of action could not be said to be not maintainable in law.

(d) Punjab Local Councils (Election Petitions) Rules, 1979‑‑‑

‑‑‑‑R. 18‑‑‑Election petition, withdrawal of‑‑‑Requirements‑‑‑Election petition may be withdrawn with leave of the Election Tribunal at any time, during course of trial‑‑‑Only requirement of such withdrawal is that the petitioner may require to pay the cost incurred by the other side.

(e) Punjab Local Councils (Election Petitions) Rules, 1979‑‑‑

‑‑‑‑R. 8‑‑‑Civil Procedure Code (V of 1908), S.1‑‑‑Election petition‑‑‑Procedure of trial‑‑‑Applicability of provisions of C.P.C.‑‑‑In case of inconsistency between the provisions of C.P.C. and the provisions of Punjab Local Government Ordinance, 1979, or Punjab Local Councils (Election Petitions) Rules, 1979, the former will yield to the latter‑‑‑Where there was no specific provision or rule to the contrary, the provisions of C.P.C. will apply as nearly as possible, in the area, during trial of election petition.

(f) Punjab Local Councils (Election Petitions) Rules, 1979‑‑‑

‑‑‑‑R. 3‑‑‑Civil Procedure Code (V of 1908), O. XXIII, R. 1‑‑‑Premature election petition‑‑‑Filing of second petition‑‑‑Principle of O. XXIII, R. 1, C.P.C.‑‑‑Effect‑‑‑After withdrawal of premature election petition, principle of O. XXIII, R.1, C.P.C. barring the filing of second suit without permission of the Court will not adversely affect the maintainability of second petition.

Ghulam Nabi and another v. Seth Muhammad Yaqoob and another PLD 1983 SC 344 and Commissioner of Income‑tax v. Ashfaq Ahmad PLD 1973 SC 406 ref.

(g) Punjab Local Councils (Election Petitions) Rules, 1979‑‑‑

‑‑R. 8(4)‑‑‑Election petition, amendment of‑‑‑Raising of new ground in amended petition‑‑‑Validity‑‑‑Election Tribunal is competent to allow amendment in election petition in such a manner which may be necessary for ensuring a fair and effective trial and for determining the real questions in controversy‑‑‑New ground of challenge to the election by way of amendment cannot be allowed by the Election Tribunal.

Rai Mehmood Sultan v. Election Tribunal Zila. Council/District Judge, Gujranwala and others 1987 SCMR 458 ref.

(h) Punjab Local Councils (Election Petitions) Rules, 1979‑‑‑

‑‑‑‑Rr. 3 & 8‑‑‑Second election petition, filing of‑‑‑Raising new grounds to challenge the election in amended petition‑‑‑Validity‑‑‑Second petition to the extent of grounds already urged in the first petition could be maintained, while the additional or different grounds, taken in the second petition, not raised earlier, could neither be allowed nor entertained or taken into consideration in deciding the second petition.

Raja Noor Muhammad v. Raja Muhammad Sadiq and another PLD 1984 Lah. 239 and 1987 SCMR 458 ref.

Syed Najaf Hussain Shah and Mubassar Hussain Cheema for Appellant

Dr. M. Mohy‑ud‑Din Qazi for Respondents.

Dates of hearing: 23rd April and 2nd October, 1999

2000 C L C 202

[Lahore]

Before Mumtaz Ali Mirza, J

ABDUL HASEEB‑‑‑Petitioner

versus

CHAIRMAN, ARBITRATION COUNCIL and others‑‑‑Respondents

Writ Petition No. 1469 of 1999, heard on 22nd September, 1999.

(a) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑Ss. 7 & 8‑‑‑Divorce‑‑‑Delegated power of divorce‑‑‑Scope‑‑‑Only that divorce, would become final on the expiry of a period of 90 days which was pronounced by a person having validly delegated power of divorce‑‑‑Where the question of delegation of right of divorce to the wife was undisputed or was such as was admitted by the husband to be correct, in that event alone, the divorce would have become final on the expiry of a period of 90 days.

(b) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑Ss. 7 & 8‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Non‑delegation of right of divorce, plea of‑‑‑Holding of inquiry into the matter by Chairman, Arbitration Council‑‑‑Wife, by using delegated right of divorce sent notice of divorce to the husband‑‑‑Husband denied delegation of any such right to the wife‑‑‑Chairman, Arbitration Council held inquiry and found such plea of husband as incorrect‑‑‑Effect‑‑‑Chairman, Arbitration Council could pot record a binding determination of fact as to the existence or otherwise of a right in favour of the wife‑‑‑Order of the Chairman, Arbitration Council giving his finding after holding an inquiry with a question of fact was wholly without any jurisdiction and without lawful authority and the same was set aside.

Syed Ali Nawaz Gerdazi v. Lt.‑Col. Muhammad Yousaf PLD 1963 SC 51; Mst. Fehmida Bibi v. Mukhtar Ahmad and another PLD 1972 Lah. 694; Mst. Zakia Farooq v. Chairman, Union Council and another 1991 CLC 1720; Dr. Syed Qamber Murtaza Bokhari v. Chairman, Arbitration and Reconciliation Committee, Lahore and another 1995 CLC 1524; Mst. Shame Farooq v. Chairman, Union Committee, Ward No.4, Lahore. Cantt. 1996 CLC 673 and Bushra Qasim Khan v. Dr. Abdul Rashid and another PLD 1997 Lah. 484 rel.

Tariq Aziz for Petitioner.

Afnan Karim Kundi for Respondent No. 3.

Date of hearing: 22nd September, 1999.

2000 C L C 206

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD ILYAS KHOKHAR‑‑‑Petitioner

versus

IHSAN ILAHI MUGHAL‑‑‑Respondent

Civil Revision No.466 of 1993, heard on 7th July, 1999.

(a) Partnership Act (IX of 1932)‑‑‑

‑‑‑‑Ss. 39, 40 & 44‑‑‑Arbitration Act (X of 1940), S.34‑‑‑Suit for dissolution of partnership‑‑‑Stay of proceedings on ground of existence of an arbitration agreement between the parties‑‑‑On filing suit by plaintiff for dissolution of partnership, defendant's counsel appeared, filed his memo. of appearance and requested for adjournment of case for filing his power of attorney and written statement‑‑‑Counsel for defendant after filing Rower of attorney, requested for adjournment of case for filing written statement and case was adjourned subject to payment of costs‑‑‑Defendant on adjourned date of hearing filed application under S.34, Arbitration Act, 1940 for stay of legal proceedings contending that in view of arbitration clause in the agreement of partnership disputes/ controversies between the parties were to be referred to arbitration ‑‑‑Validity‑‑­Any party to proceedings could apply to Court for referring matter to arbitration at any time before filing a written statement or "taking any other steps in the proceedings" as provided under S.34, Arbitration Act, 1940‑‑‑Defendant's counsel who filed his memo. of appearance in Court and requested for adjournment of case for filing his power of attorney and written statement and thereafter, filed his power of attorney and got case adjourned for filing written statement, his such acts would amount to "taking any other steps in proceedings" and defendant would be deemed to have waived his right for stay of proceedings and sending matter to arbitration.

Island Textile Mills Ltd., Karachi v. V/O Technoexpert and another 1979 CLC 307; Sadhan Kumar Bhattacherjee v. Sunil Kumar Bhattachedee and others AIR 1948 Cal. 59; New Bengal Shipping Company v. Eric Lancaster Stump PLD 1952 Dacca 22; Muhammad Idris and others v. Tobarak Hossain PLD 1965 Dacca 260; Mubarik Cotton Factory v. Messrs General Agencies, Multan PLD 1980 BJ 1; Akbar Cotton Mills Ltd. v. Messrs VES/Ojuanojo Obtedinenije Tech/Amesh Export and another 1984 CLC 1605; Messrs ASLO Marines Ltd. v. M.T: Magda and another PLD 1985 Kar. 745; Eckhardt & Company Marine GMBH, West Germany and another v. Muhammad Hanif PLD 1986 Kar. 138; Uzin Export Import Enterprises v. Iftikhar & Company Ltd. PLD 1986 Kar. 1 and Messrs Alazizia Industries, Uch' Sharif Road, Ahmadpur East v. Messrs Alfalah Insurance Company Ltd. and 4 others PLD 1993 Lah. 306 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Appellate Court below after taking into consideration legal and factual aspects of the case reversed findings of Trial Court‑‑‑Petitioner (defendant) having failed to point out any illegality or jurisdictional defect in judgment of Appellate Court below, said judgment could not be interfered with by High Court in exercise of revisional jurisdiction.

Mian Israr‑ul‑Haq for Petitioner. Muhammad Zaheer for Respondent.

Date of hearing: 24th June, 1999.

2000CLC215

[Lahore]

Before Muhammad Nawaz Abbasi and Sh. Amjad Ali, JJ

FEDERATION OF PAKISTAN‑‑‑Appellant

versus

Messrs ALFAROOQ FLOUR MILLS LTD. ‑‑‑Respondent

Regular First Appeals Nos. 61 and 68 of 1997, decided on 15th June, 1999.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 73‑‑‑Breach of contract‑‑‑Compensation‑‑‑Claim for‑‑‑Compensation for breach of contract could be claimed only when damage was caused directly by the said breach‑‑‑Statutory recognition of the rule for recovery of damages for the breach of contract was different from that of general rule for damages and the damages not arising in the usual course of things from the breach, could not be claimed in consequence of the breach of contract‑‑‑Contracting party for his own default could not be allowed either to defeat the contract or claim better position without fulfilling his obligation.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 73‑‑‑Breach of contract‑‑‑Proof‑‑‑Damages‑‑‑Breach of contract by a party was specifically to be proved and unless it was done was not possible, on basis of general allegation, to ascertain as Who committed the breach‑‑­ Plaintiff in a suit could not claim any sum as damages, which arose on account of his own negligence‑‑‑Plaintiff was Bound to take all reasonable steps to mitigate the loss and if some damages were caused to him due to his own failure of performing his part of the contract, damages for breach of contract either under S.73, Contract Act, 1872 or under tort could not be granted.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 73‑‑‑Breach of contract‑‑‑Damages‑‑‑Calculation‑‑‑Damages either for breach of contract or for tort were to be calculated in terms of actual loss‑‑­Endeavour was to be made to place the injured person in the situation as if the contract had been performed‑‑‑Generally in case of breach of contract, party who suffered loss by the breach, was entitled to recover compensation from other party for the actual loss caused to said party, but in such a case, party complaining breach must prove that he was always ready and willing to perform his part of the contract and committed no fault‑‑‑General principle under S.73, Contract Act, 1872 was that only special damages arising in consequence to the breach of contract were allowed and the general damages usually concerning with non‑pecuniary losses such as loss of reputation, could not be estimated as special loss which was confined to the injury caused to an individual party as a result of breach.

(d) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 73‑‑‑Breach of contract‑‑‑Damages‑‑‑Entitlement to compensation‑‑‑In case 'of damages due to breach of contract, matter, would be governed by S.73 of Contract Act, .1872 and plaintiff' could get compensation for actual loss, but in any case general losses were not permitted for such breach of contract‑‑‑Term "compensation" undoubtedly was used for damages and was often measured with the rule of damages in terms of money and was paid as compensation for loss and injury sustained in consequence of breach of contract‑‑‑No compensation could be given for any remote or indirect loss or damage sustained for breach of contract by reason of one's own fault.

Saeed Ahmad Karmani v Messrs Muslim Commercial Bank, Islamabad 1993 SCMR 441: deputy Collector of Central Land Customs, Peshawar and 2 others v. Premier Tobacco Industries, Peshawar 1993 S: MR 447; Islah High school, Chiniot through Province of the Punjab v. Jawad Hussain 1996 SCMR 193: Soofi Muhammad lshaq v. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737 and Miss Waheed Shafi v. University of Engineering and Technology. Texila through Vice‑Chancellor and 3 others PLD 1996 SC ref. 1

Tort.‑‑

‑‑‑Breach of contract‑‑‑Damages, grant of‑‑‑Damages either for breach of contract or for tort were to be calculated in terms of actual loss‑‑Plaintiff in a suit could not claim any sum as damages, which happened on account of his own Negligence‑‑‑Plaintiff was bound to take all reasonable steps to mitigate the loss and if some damages were caused to him due to his own failure of performing ;its part of the contract. damages for breach of contract under tort could not be granted.

Maulvi Anwar‑ul‑Haq, Dy. A.‑G. for Appellant. Ch. Afrasiab Khan, Standing Counsel. Ch. Khurshid Ahmad and Qamar Riaz Hussain for Respondent.

Date of hearing: 2nd March, 1999.

2000 C L C 244

[Lahore]

Before Ch. Ijaz Ahmad, J

CHIEF ADMINISTRATOR OF AUQAF, GOVERNMENT OF THE PUNJAB, LAHORE‑‑‑Petitioner

versus

RASHEED MUHAMMAD and 7 others‑‑‑Respondents

Writ Petition No. 16960 of 1999, decided on 20th October, 1999.

(a) Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑‑‑Ss. 21 & 23‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11 ‑‑‑ Plaint, rejection of‑‑‑Jurisdiction of Civil Court‑ ‑‑Property in question belonged to the Auqaf Department, and Collector had fixed the lease amount on the request of the Administrator Auqaf‑‑‑Lessees assailed such action in a civil suit‑‑‑Auqaf Department filed application under O.VII, R.11, C.P.C. for the rejection of plaint on the ground that Civil Court had no jurisdiction in the matter‑‑‑Trial Court dismissed application of department and such order of Trial Court was upheld by Lower Appellate Court‑‑‑Validity‑‑‑Civil Courts had no jurisdiction to take the cognizance of the matter by virtue of Ss.21. & 23, Punjab Waqf Properties Ordinance; 1979‑‑‑Both the Courts below wrongly dismissed the application of the petitioner for rejection of plaint without adverting to S.21 of Punjab Waqf Properties Ordinance, 1979‑‑­Orders of both the Courts below were set aside.

Chief Land Commissioner, Punjab and others v. Chief Administrator, Auqaf, Punjab PLD 1998 SC 132; Chief Administrator Auqaf and others v. Haji Muhammad Sharif and another 1999 SCMR 2795; 19716 SCMR ‑4501; 1975 SCMR 104; Board of Intermediate and Secondary, Education v. Ch. Anjum Pervaiz 1989 CLC 64 and Muhammad Rafiq's case 1983 SCMR 1024 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 189‑‑‑Judgments of Supreme Court are binding on each and every organ of the State, by virtue of Art. 189 of the Constitution.

Muhammad Arif Raja for Petitioner.

Khalid Aseer Ch. for Respondents.

Date of hearing: 20th October, 1999.

2000 C L C 260

[Lahore]

Before Syed Jamshed Ali, J

SALMA KHALIL and 3 others‑‑‑Petitioners

versus

RASHIDA SIDDIQUEE and another‑‑‑Respondents

Civil Revision No. 1167 of 1999, heard on 13th October, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXIII, R. 1‑‑‑Permission to file fresh suit‑‑‑Lower Appellate Court allowed the respondent/plaintiff to withdraw the suit with permission to file fresh one‑‑‑Validity‑‑‑While granting such permission, Lower Appellate Court did not specify the formal defect in the suit‑‑‑Order of the Lowe Appellate Court was set aside in circumstances.

Abdul Manan and others v. Muhammad Ibrahim and others PLD 1999 Lah. 438 and Muhammad Ramzan v. Mirza Naseer Beg 198.0 CLC 1555 ref.

S.M. Masud for Petitioners.

Khurshid Alam Qazi for Respondents.

Date of hearing: 13th October, 1999.

2000 C L C 267

[Lahore]

Before Nasim Sikandar, J

SAJAWAL and others‑‑‑Petitioners

versus

MUHAMMAD DIN and others‑‑‑Respondents, Civil Revision No.274 of 1986, decided on 31st July, 1999.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Revision‑‑­Maintainability‑‑‑Suit for pre‑emption‑‑‑Concurrent findings .of fact by both the Courts below‑‑‑Suit filed by the pre‑emptor was decreed by Trial Court and appeal by petitioners/vendees was dismissed by lower Appellate Court‑‑­Effect‑‑‑Finding of fact, however, erroneous, could not be upset on re­appraisal of evidence and by taking a different view thereof‑‑‑Such finding of fact could only be disturbed by the High Court under S.115, C. P. C., where the Courts below had misread the evidence on record or while assessing or evaluating evidence had omitted from consideration some important piece of evidence‑‑‑Where record did not suggest the availability of any of conditions to warrant exercise of revisional jurisdiction, revision was maintainable.

Abdul Hakeem v. Habib Ullah and others 1997 SCMR 1139 fol.

Wazir Muhammad and 3 others v. Abdul Aziz and another 1981 CLC .814; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Atlantic Steamer's Supply Company v. m.v. Titisee and others PLD 1993 SC 88; Hazrat Fazal Alim Jan v. Ziarat Committee, Mazar Hazrat Jeo Sahib 1997 SCMR 1824; Mst. Fauzia Parveen v. Mst. Sahib Khatoon and others 1988 SCMR 552; Amir Shah v. Ziarat Gul 1988 SCMR. 593; Shahid Mahmood v. Mst. Bashiran Bibi 1998 CLC 1017; Muhammad Malik v. Haii Muhammad Bashir and another 1994 CLC 2020; Raj Muhammad and 2 others v. Munshi Khan and 2 others PLD 1989 SC (AJ&K) 56; Sardar Khan v. Ghulam Sarwar and ,2 others PLD 1982 SC (AJ&K) 128; Hayat Bakhsh v. Mansabdar Khan and others AIR 1935 Lah. 529; Muhammad Amin Khan v. Mst. Parveen Ramzan and others PLD 1998 SC 1506; Muhammad Mujtaba v. Ghulam Ali and others 1980 SCMR 7; Muhammad Akbar v. Muhammad Charagh 1995 CLC 2016; Abdul Rashid and others v. Khurshid Ahmad and others PLD 1989 SC 373(2); Mst. Fatima Bibi and 11 others v. Mst. Rahim Bibi and 3 others PLJ 1999 Lahore 128; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173; F.A. Khan v. The Government of Pakistan PLD 1964 SC 520; Juma Khan v. Mst. Shamim and 3 others 1992 CLC 1022; Amir Bakhsh and another v. Muhammad Ramzan and 3 others 1990 MLD 245 and Syed Farzand Raza Rizvi v. Syed Zaheer Mustafa 1988 MLD 463 ref.

(b) Pleadings‑‑‑

‑‑‑‑ Pleadings by Mufassal lawyers should be seen with a condoning eye.

(c) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑A‑‑‑Superior, right of pre‑emption ‑‑‑Transfer of share by one vendee in favour of other vendee during the pendency of pre‑emption suit‑‑­Effect‑‑‑Any such transfer would not affect the claim of the pre‑emptor and provisions of S.21‑A, Punjab Pre‑emption Act, 1913 would clearly tie attracted.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, R. 31‑‑‑Judgment of Appellate Court‑‑‑Plea of non‑compliance of provisions of O. XLI, R.31, C.P.C.‑‑‑Validity‑‑‑Where Appellate Court was to maintain the order of the lower forum for similar reasons, then the reasons earlier discussed by the lower forum need not be repeated‑‑‑Any such order of the lower Appellate Court could not be described as violative of the provisions of O.XLI, R.31 of C.P.C.

Shah Gul and others v. Mst. Shamim Akhtar and others 1990 SCMR 110; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and Muhibullah Khan v. Sadiq Khan 1986 SCMR 270 ref.

Ch. Arshad Mahmood for Petitioner.

Muhammad Aslam Nagi for Respondent No. 1.

Nemo for Respondent No‑2.

Date of hearing: 30th June, 1999.

2000 C L C 285

[Lahore]

Before Nasim Sikandar, J

MANZOOR HUSSAIN ‑‑‑Appellant

versus

WAPDA through Chairman, WAPDA, WAPDA House, Lahore‑‑‑Respondent

Regular Second Appeal No.244 of 1982, decided on 22nd July, 1999.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Preamble‑‑‑Omni bus or residuary Articles to the Limitation Act, 1908‑‑­Applicability‑‑‑Principle‑‑‑Where a particular Article of Limitation Act, 1908, was attracted, resort to omnibus and residuary Article could not be made.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 36 cases of malfeasance, misfeasance or non‑feasance independent of contract‑‑‑Limitation‑‑‑Plaintiff claimed damages for electricution of his two buffaloes clue to negligence on the part of the defendant to keep in proper maintenance of electric installations wherefrom electricity was being supplied to general consumers‑‑Suit for damages was filed after three years of the incident‑‑‑Validity‑‑‑Suit was covered by Art.36 of Limitation Act, 1908 and a period of two years was provided from the moment an injury on the basis of malfeasance, misfeasance or non‑feasance took place‑‑‑Suit filed beyond two years was barred by limitation.

Abdul Majeed Butt v. United Chemicals Ltd. PLD 1970 Lah. 298 distinguished.

Sh. Naveed Sheharyar for Appellant.

Syed Iftikhar Ahmad for Respondent.

Date of hearing: 29th June, 1999.

2000 C L C 290

[Lahore]

Before Nasim Sikandar, J

ABDUL HAMID and another‑‑‑Petitioners

versus

ILAM DIN and another‑‑‑Respondents

Civil Revision No.424‑D of 1983, decided on 13th July, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VII, R.11‑‑‑Rejection of plaint‑‑‑Failure to make up deficiency in the court‑fee‑‑‑Where an opportunity was allowed at the preliminary stage but plaintiff failed to make up such deficiency the plaint would be rejected.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑S. 2(2) &. O.VII, RAI ‑‑‑Decree, conditional‑‑‑Failure on the part of decree‑holder to fulfil condition‑‑‑Effect‑‑‑Rejection of plaint‑‑‑Where on the completion of trial conditional decree was passed, failure on the part of the decree‑holder to fulfil condition so imposed would result in dismissal, of the suit and words "rejection of plaint" would convey the same meaning.

Muhammad Nasurllah Khan v. M. Ajaz Khan PLD 1975 Lah. 886 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑Ss. 11 & 115‑‑‑Res judicata, principle of‑ ‑‑Applicability‑ Earlier suit on the same cause of action between the same I3arties was decreed 'conditionally in favour of the plaintiff‑‑‑Suit was dismissed due to non‑fulfilment of condition imposed in the decree‑‑‑Fresh suit on the same cause of action was filed by plaintiff which was dismissed by both the Courts below applying the principle of res judicata‑‑‑Validity‑‑‑Principle of res judicata operated both ways positively as well as negatively, and the result or outcome of the previous decision for or against a party to the lis was not material‑‑‑Principle of res judicata covered not only the parties but also the Courts as the principle enjoined upon them not to try a suit in the conditions given in S.11, C.P.C.‑‑‑Where all the necessary qualifications of the principle of res judicata were fully answered, no case for an interference was made out‑‑‑Revision was dismissed in circumstances.

Ram Singh v. Nodh Singh (Punjab Record) May, 1879, p.241; Mst. Maina Bibi and others v. Valil Ahmed and others AIR 1925 PC 63 and Mst. Nawasi Begum and another y Mt. Diffafroz Begum AIR 1927 All. 39 distinguished.

Asif Ali v. Muhammad Siddiq 1984 CLC 439; Muhammad Anwar v. Messrs Associated Trading Co. Ltd. PLD 1995 Kar. 214; Ilam Din and others v. Abdul Hamid and others 1980 CLC 807; National Bank of Pakistan v. Malaka Pukhraj and others PLD 1975 Lah. 1235 and Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139 ref.

Khalid Ikram Khotana for Petitioners.

Naghman Haider Zaidi for Respondents.

Date of hearing: 26th May, 1999.

2000 C L C 305

[Lahore]

Before Nasim Sikandar, J

NOOR MUHAMMAD‑‑‑Petitioner

versus

JAMAL DIN and others‑‑‑Respondents

Civil Revision No.656‑D of 1999, decided on 14th September, 1999, (a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revision‑‑‑Misreading and non‑reading of evidence ‑‑‑Effect‑‑­General power of attorney was executed in favour of petitioner/defendant who alienated the suit property in favour of his sons' and a stranger‑‑­Respondents/plaintiffs assailed the alienation of the suit property after 20 years‑‑‑Both the Courts below had decided the case in favour of respondents,' plaintiffs and decreed the suit‑‑‑Validity‑‑‑Two respondents/plaintiffs who were the only living persons who could support the facts given in the plaint or could explain the reasons for execution of documents and their silence for a period of 20 long years. did not enter into the witness‑box‑‑‑Failure of the respondents/plaintiffs to explain such facts had clearly non‑suited them‑‑­Case was not only the one of misreading and non‑reading of evidence but of a finding recorded and conclusions drawn against admitted facts‑‑‑Judgment and decrees of both the Courts below were set aside in revision by High Court.

Haji Faqir Muhammad v. Pir Muhammad 1997 SCMR 1811 and Muhammad Siddique v. Mst. Shagufta Begum 1994 CLC 1690 distinguished.

Re: Doward Dickson & Co. and others v. Williams & Co. Criminal Law Reports, Vol. VI of 1889‑90; Samart & Sandars and another English Reports 5 CB 895; Sardar Bir Singh v. Noor Ahmed and others AIR 1972 Gauhati 122; Abdul Ghaffar v. Zaiur Rahim and others 1991 SCMR 451; Khanzada Inamullah Khan v. Mst. Zakia Qutan and others PI.D 1998 Pesh. )~, Akhtar Hussain and others v. Settlement Commissioner and others 1985 SCMR 521; Haji Mitha Khan v. Nafees Begum 1995 CLC 896; Zaildar v. Allah Randa 1981 SCMR 1027; Ali Muhammad v. Muhammad Sharif 1990 ALD 398(2); That Development Authority v. Khushi Muhammad and another PLD 1994 Lah. 108: Mst. Khair‑ul‑Nisa and 6 others v. Malil Muhammad Ishaque and 2 others PLD 1972 SC 25 and Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PI.D 1959 Pesh. 81 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 118‑‑‑Proof‑‑‑Onus of‑‑‑Where onus of proof was on plaintiff, failure to produce cogent evidence, would not cast any responsibility on defendant to negatively disprove the same.

Ali Mohataram Naqvi v. Messrs Gogefar Astaldi Sidmail PLD, 1986 Kar. 574 rel.

(c) Fraud‑‑‑

‑‑‑‑Proof‑‑‑Onus‑‑‑Burden of proof lies upon the party alleging the fraud.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of fact‑‑‑Jurisdiction of High Court‑‑‑Principles‑‑‑If concurrent findings of fact could in no circumstances be disturbed by High Court, the same would make the provisions of S.115, C.P.C. redundant, as far as High Court was concerned‑‑‑Where the Courts below neither committed any misreading of evidence nor omitted from consideration any material piece of evidence and appreciation of evidence was also not perverse, the exercise of revisional jurisdiction was restricted in such cases of concurrent findings of facts by the Courts below.

Sirtaj Khan v. Jan Muhammad PLD 1998 SC 1502 rel.

Abdul Hafeez v. Ghulam Muhammad 1987 SCMR 1005; Muhammad Rafique v. Divisional Engineer, P.W. Railway 1992 CLC 786 and Abdul Hakeem v. Habib Ullah and others 1997 SCMR 1139 distinguished.

(e) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & 54‑‑‑Declaration and injunction, grant of‑‑‑Duty of Court‑‑­Scope‑‑‑Grant of such relief was discretionary‑‑‑Where a party approbated and reprobated, concealed necessary‑ facts from the Court and kept itself away from the witness‑box, such discretion could not be exercised in favour of such party.

M.D. Chaudhry for Petitioner.

A. K. Dogar and Muhammad Ahmad Alwari for Respondents.

Date of hearing: 25th August, 1999.

2000 C L C 323

[Lahore]

Before Raja Muhammad Sabir, J

TALIB HUSSAIN and another‑‑‑Petitioners

versus

MUHAMMAD SHARIF and 4 others‑‑‑Respondents

Civil Revision No.544 of 1999, heard oft 14th September, 1999.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 30‑‑‑General Clauses Act (X of 1897), S.2(34)‑‑‑Suit for pre emption‑‑‑Limitation‑‑‑Suit filed within prescribed period of four months from registration of sale‑deed in respect of pre‑empted lard was resisted by vendee contending that period of four months prescribed under S.30, Punjab Pre‑emption Act, 1991 for enforcing right of pre‑emption would mean "one hundred and twenty days" assuming "thirty days" in a month and that by calculating period on days basis, suit filed by pre‑emptor was time‑barred‑‑­Period of limitation for enforcing right of pre‑emption as pointed in S.30, Punjab Pre‑emption Act, 1991 was simply "four months"‑‑‑If intention of Legislature was "Islamic four months" or "one hundred and twenty days" it would have been specifically mentioned as "four lunar/Islamic months but that having not been incorporated, contention of vendee that period of four months was to be reckoned as lunar months was devoid of any force ‑‑‑Sale­deed in respect of pre‑empted land having been registered on 22‑10‑1997, pre‑emption suit filed by pre‑emptor on 20‑2‑1998, was well within time‑‑­Concurrent findings of Courts below that suit filed by plaintiff was barred by time, were set aside by High Court.

Sher Muhammad and 6 others v. Gul Fraz 1989 CLC 1344; Muhammad Zubair and another v. Saleh Muhammad and 2 others 1993 CLC 1047 and Dadu v. Balgounda 5 Born. HCR (ACJ) 39 ref.

(b) Practice and procedure—

‑‑‑‑Principles‑‑‑Plea/objection not earlier raised in lower Courts, could not be permitted to be agitated in the higher Court.

Taki Ahmed Khan for Petitioners.

Malik Noor Muhammad Awan for Respondents.

Date of hearing: 14th September, 1990.

2000 C L C 334

[Lahore]

Before Mrs. Fakhar‑up‑Nisa Khokhar, J

Mst. GHULAM SAKEENA‑‑‑Petitioner

versus

BASHIR AHMAD and others‑‑‑Respondents

'Writ Petition No. 14050 of 1994, heard on 9th December, 1999.

(a) Administration of justice‑‑‑

‑‑‑‑Technicalities‑‑‑Substantial justice could not be denied to litigant on mere technicalities.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 12(2), 96 & 115‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Conversion of appeal into revision‑‑‑Trial Court accepting application filed under S.12(2), C.P.C. set aside judgment passed by it and petitioner aggrieved by said order of Trial Court, instead of filing revision, filed appeal before Appellate Court below which was dismissed by Appellate Court being incompetent holding that on application under S.12(2), C.P.C., no right of appeal existed and that Court had no jurisdiction to convert appeal into revision‑‑‑Validity‑‑‑Appellate Court had jurisdiction to convert appeal into revision and decide case on merits after being satisfied that it was not hit by any other law‑‑High Court set aside judgment of Appellate Court below and remanded, case to be decided on merits.

Gahna Khan v. Mitha PLJ 1983 Lah. 166; Karamat 'Hussain and others v. Muhammad Zaman and others (?); Abdul Latif Niazi v. Punjab Province through Collector, Multan 1985 SCMR 27 and Lal Khan and another v. Rehmatullah and 5 others 1996 CLC 1696 ref.

K.M. Virk for Petitioner.

Respondent No. 2 in person and also on behalf of Respondent No. 1.

Respondent No.3: Ex parte.

Date of hearing: 9th December, 1999.

2000 C L C 340

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

MUHAMMAD LATIF‑‑Petitioner

versus

SHAMS‑UD‑DIN and others‑‑‑Respondents

Writ Petition No. 6707 of 1997; heard on 2nd December, 1999.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Punjab Pre‑emption Act (IX of 1991), S.34(2)‑‑‑Repeal of Punjab Pre‑emption Act, 1913‑‑‑Effect‑‑‑All cases and appeals filed under repealed Punjab Pre‑emption Act, 1913, in which judgments and decrees had been passed before target date (1‑8‑1986), further proceedings if any relating to said cases and appeals would. notwithstanding the repeal of said Act be governed and continued in accordance with provisions thereof‑‑‑Once a decree was passed prior to crucial date of 31‑7‑1986 in favour of pre‑emptor such case would be dealt with under Punjab Pre‑emption Act, 1913.

Muhammad Sharif v. Muhammad Sharif 1992 SCMR .1129 ref.

Muhammad Nazir Janjua for Petitioner.

Khalid Aseer Chaudhry for Respondents.

Date of hearing: 2nd December, 1999.

2000 C L C 349

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhr, J

MUHAMMAD HUSSAIN and others---Petitioners

versus

Sufi ABDUL RASHID and others---Respondents

Civil Miscellaneous No.226 in Writ Petition No.69 of 1998, heard on 6th

December, 1999.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 10 & 30---Civil Procedure Code (V of 1908), S.12(2)---Extension of lease of land---Application for setting aside judgment on grounds of fraud and misrepresentation---Respondent, who was temporary lessee of land in dispute under five years' scheme and was in cultivating possession thereof, applied to Board of Revenue for extension of his lease which application was accepted---Petitioners filed application against said order of Board of Revenue under S.12(2), C.P.C. alleging that respondent had obtained extension of lease concealing fact of his never been in possession of the land in dispute as he was never put in possession of that land---Evidence on record had proved that respondent had been in physical possession of land in dispute---Order by Board ' of Revenue passed in favour of respondent had obtained finality having never been challenged before any superior forum--­No fraud, misrepresentation or collusion on the part of respondent having been shown in application filed under S.12(2), C.P.C., same was rejected under O.Vll, R.11, C.P.C. by High Court.

Sardar Muhammad lqbal Khakwani for Petitioner.

Respondent No.1 in person.

Date of hearing: 6th December, 1999.

2000 C IL C 376

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

ASHIQ HUSSAIN ‑‑‑Appellant

versus

NIAZ MUHAMMAD ‑‑‑Respondent

First Appeal from Order No.23 of 1991, heard on 29th September, 1999

(a) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17(4), proviso‑‑‑Use of rented premises as hotel, Sarai, lodging houses ‑‑‑Ejectment of tenant from such premises‑‑‑Service of mandatory notice‑‑‑Benefit of proviso to S.17(4) of Cantonments Rent Restriction Act, 1963‑‑‑Scope‑‑‑Tenant was duty bound to prove that the premises was being used as hotel, at the time of commencement of Cantonments Rent Restriction Act, 1963, or the same was let out for hotel expressly, with the consent in writing of landlord‑‑‑In absence of any consent in writing, the tenant could not claim any benefit of the proviso to S.17(4), Cantonments Rent Restriction Act, 1963.

(b) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17(4)‑‑‑Ejectment petition‑‑‑Maintainability‑‑‑Non‑service of two years' prior notice‑‑‑Effect‑‑‑Basic purpose for which the property was let out was relevant as such the subsequent use of the property as hotel was not material‑‑‑Any subsequent conversion of the use by the tenant without the written consent of the landlord could not justify raising of objection to the maintainability of ejectment petition‑‑‑Where the tenant failed to establish any existence of such written consent of landlord, the ejectment petition was maintainable.

Lt.‑Col. (Retd.) Muhammad Hassan Safdar v. Malik Shabbir Ahmed and another 1994 CLC 286 and Kamil Khan and another v. Government of Sindh through Deputy Commissioner, Sanghar and 22 others PLD 1998 Kar. 268 ref.

(c) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Ejectment of tenant‑‑‑Non‑issuance of notice to tenant ‑‑‑Effect‑‑­Where notice was required, the ejectment petition itself could have been treated as a notice.

Aziz Begum v. Faiyaz Butt 1991 CLC htite 9 at p.6 ref.

(d) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Premature ejectment petition‑‑‑Effect‑‑‑Where any such petition was matured during the pendency of the case, the Rent Controller was not denuded of his power to decide the case on merits.

Abdul Razaq v. Abdul Hamid 1979 SCMR 534 and Raj Muhammad and 11 others v. Haji Muhammad Zareen and 3 others 1980 SCMR 339 rel.

(e) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S: 17‑‑‑Ejectment petition‑‑‑Moulding of relief‑‑‑Effect‑‑‑Rent Controller was competent to mould relief according to the changed circumstances. [p. 380] E

Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978

SC 220 rel.

(f) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlord‑‑‑Proof‑‑‑Landlord was expected to make statement on oath about the personal need and where such statement was consistent with the pleadings and nothing was extracted from landlord in cross‑examination, the same was sufficient to prove bona fide personal need of landlord‑‑‑Question of personal use had to be considered in context with the protective clause which provided adequate checks against mala fide eviction.

(g) Cantonments Rent Restriction Act (XI of 1963)

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlord‑‑‑Plea of intention to increase rent‑‑‑Effect‑‑‑Where bona fide need was otherwise ‑established on record, plea of intention to increase rent could not adversely affect the case for personal use.

Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. 1985 SCMR 1996 rel.

Syed Muhammad Ali Gillani for Appellant.

Pir Muhammad Asif Rafi‑ud‑Din Shah for Respondent

Date of hearing: 29th September, 1999

2000 C L C 387

[Lahore]

Before Muhammad Akhtar Shabbir, J, . .

SAID MUHAMMAD ‑‑‑Petitioner

versus

SULTAN AHMAD and 7 others‑‑‑Respondents

Civil Revision No.932 of 1999, decided on 2nd September, 1999.

(a) Contempt of Court Act (LXIV of 1976)‑‑‑

‑‑‑‑S. 3‑‑‑Contempt of Court‑‑‑Undertaking given to Court by a party‑‑­Nature‑‑‑Undertaking given to the Court by a party or his counsel has exactly the same force as an order made or injunction granted by the Court.

Mst. Kishwar Sultan Jehan ‑Begum v. Aslam Avais and 3 others

PLD 1976 Lah. 580 rel.

(b) Contempt of Court Act (LXIV of 1976)‑‑‑

‑‑‑‑Ss. 3 & 5(4)‑‑‑Penal Code (XLV of 1860), 5.228‑‑‑Contempt of Court‑‑­Subordinate Courts, jurisdiction of‑‑‑Subordinate Court could punish for contempt of Court under provisions of Ss.3 & 5(4) of Contempt of Court Act, 1976 and S.228, P.P.C. only where the contempt was committed in the face of the Court or its orders were disobeyed or disrespected.

Yat Muhammad v. The State 1990 PCr.LJ 1736 ref.

(c) Contempt of Court Act (LXIV of 1976)‑‑‑

‑‑‑‑Ss. 3, 4 & 5(4)‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, R.2(3)‑‑‑Contampt of Court‑‑‑Jurisdiction of subordinate Courts‑‑‑Suit was disposed of in the light of an undertaking given by the party‑‑‑Application under O.XXXIX, R.2(3), C.P.C.. was filed by the contemner for violating the undertaking and Trial Court convicted the respondent for committing the contempt of Court‑‑‑Validity‑‑‑Subordinate Court could punish for contempt of Court only where the contempt was committed in the face of the Court q when its orders were disobeyed or were not respected‑‑‑Civil Judge lacking the jurisdiction to try the contempt petition was directed to make reference to the High Court.

Yar Muhammad v. The State 1990 PCr.1J 1736 rel.

Ch. Saif Ullah Warraich for Petitioner.

Ghulam Haider Al‑Ghazali, Addl. A‑G. for Respondents.

2000 C L C 409

[Lahore]

Before Muhammad Akhtar Shabbir, J

FATEH MUHAMMAD and 2 others‑‑‑Petitioner

versus

GULSHER‑‑‑Respondent

Civil Revision No.378 of 1994, heard on 11th June, 1999.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 13(3)‑‑‑Pre‑emption suit‑‑‑Notice of Talab‑e‑Ishhad‑‑--‑Mere sending of notice is not enough in the .triatter, receipt of such notice by the defendant has to be established.

Muhammad Rafiq v. Ghulam Murtaza 1998 MLD 292 rel.

(b) Punjab Pre‑eruption Act (IX of 1991)‑‑‑

‑‑‑‑S. 13‑‑‑Right of pre‑emption ‑‑‑Non‑fulfilment of requirements of mandatory Talabs‑‑‑Effect‑‑‑Plaintiff/respondent failed to prove Talab‑e-­Muwathibat (first Talab), whereas Talab‑e‑Ishhad was always followed by that first Talab‑‑‑Where the first Talab was not completed in accordance with law, the second Talab could not follow and in case of missing any one of the three Talabs, the right of pre‑emption was extinguished‑‑­Plaintiff/respondent was supposed to make three Talabs in the manner prescribed by law and non‑fulfilment of such requirements of Talabs in prescribed order did not entitle the plaintiff/ respondent to the decree of pre­emption ‑‑‑Plaintiff/respondent failed to declare his intention to institute a suit for pre‑emption, as soon as he received the knowledge of sale in dispute‑‑­Such was a case of misreading/non‑reading of evidence by the Lower Appellate Court and High Court could interfere in revisional jurisdiction‑‑­Judgment and decree of the Lower Appellate Court was set aside and suit was dismissed accordingly.

Abdul Qayyum Khan v. Musa Khan and 5 others 1995 CLC 725: Abdul Hameed alias Abdul Majeed v. Altaf Hussain NLR 1998 Civil 182; Muhammad Ramzan v. Lal Khan 1995 SCMR 1510; Mir Sahib and others v Muhammad Rauf Khan 1992 SCMR 1780 and Muzaffar Ali v Zain‑ul‑ Abidin 1992 SCMR 1886 ref.

Allah Wasaya Malik for Petitioners.

Qazi Khurshid Alain for Respondent.

Date of hearing: 11th June, 1999.

2000 C L C 419

[Lahore]

Before Muhammad Akhtar Shabbir, J

MANZOOR AHMAD‑‑‑Petitioner

versus

Haji HASHMAT ALI through Legal Heirs‑‑‑Respondent

Civil Revisions Nos.843‑D and 844‑D of 1986, decided on 27th August, 1999.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 8‑‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(1) & (2)‑‑‑Possession of immovable property‑‑‑Filing of suit under S.8, Specific Relief Act, 1877 or filing of ejectment application under S.13, West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Validity‑‑‑Ejectment application under S.13, West Pakistan Urban Rent Restriction Ordinance, 1959, could only be filed, where there was a dispute between the landlord and a tenant of a building on the ground mentioned in S.13(2), West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Where there was no such dispute and it was a matter between the vendor and the vendee, suit under S.8, Specific Relief Act, 1877, was competently instituted for the recovery of the possession of the suit property.

(b) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑Ss: 32 & 87‑‑‑Registration of document‑‑‑Presentation of any document by incompetent person‑‑‑Curability of such defect under S.87, Registration Act, 1908‑‑‑Jurisdiction of Registering Officer would come into force only if and when any document was presented before such officer in accordance with law‑‑‑Presentation of document by an incompetent person was not a mere defect of procedure curable under S.87, Registration Act, 1908.

(c) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑S.34‑‑‑Registration of document‑‑‑Duty of Registering Officer ‑‑‑Scope‑‑­Mandatory duty of Registering Officer to make inquiry about the execution of the document and identity of the person appearing before him for registration of the document.

(d) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑S. 38‑‑‑Exempting the appearance of executant of a document‑‑­Appointment of Local Commission‑‑‑Scope‑‑‑Genuineness of document‑‑­Whether Local Commissioner can be appointed to look into ‑‑‑Executant who desires exemption as stated in S.38, Registration Act, 1908, will apply to the Registration Officer for the appointment of a Local Commission to examine such executant at his residence‑‑‑Local Commission for inquiry into the genuineness of any document cannot be issued by the Registering Officer.

(e) Registration Act (XVI of 1908)‑‑--

‑‑‑‑Chap. VI [Ss.32 to 35]‑‑‑Registration of document‑‑‑Duty of Courts‑‑­Scope‑‑‑Intention of the Legislature was that registration of deed should be null and void by reasons of non‑compliance of the provisions of Registration Act, 1908‑‑‑Duty of Court was not to allow the imperative provision of Registration Act, 1908 to be defeated.

Muhammad Ewaz v. Birj Lal (77) 1 All. 465 and Jambu Prasad v. Muhammad Nawab Aftab AIR 1914 PC 16 ref.

(f) Registration Act (XVI of 1908)‑‑

‑‑‑‑Chap. VI [Ss. 32 to 35]‑‑‑Registration of document‑‑‑Non‑Compliance of provisions mentioned in Chap. VI of Registration Act, 1908‑‑‑Such provisions are mandatory and not directory in nature‑‑‑Non‑compliance of provisions mentioned in Chap. VI of Registration Act, 1908 will make the document null and void.

(g) Transfer of Property Act (IV of 1882)‑‑

‑‑‑‑S.54‑‑‑Sale of immovable property‑‑‑Mere registration of sale‑deed would not operate to pass title to the vendee ‑‑‑Where there was neither the possession of the property alleged to have been sold nor any proof of payment of the consideration money was available, mere registration of sale­deed would not operate to pass title to the vendee.

Ali Muhammad and others v. Chief Settlement and Rehabilitation Commissioner 1984 SCMR 94 and Qazi Altaf Hussain v. Ashfaq Hussain 1986 SCMR 1427 ref.

(h) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 78‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Execution of registered sale‑deed denied‑‑‑Proof of sale‑‑‑Onus‑‑‑Where the execution of document of sale‑deed was denied by the executant/vendor, the onus to prove ' the registered sale‑deed shifted to the vendees/beneficiaries of the sale­deed‑‑‑Such vendees/beneficiaries were under obligation to prove the bargain and payment of money of the property by producing sufficient evidence.

Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1014 rel.

(i) Registration Act (XVI of 1908)‑‑

‑‑‑‑S. 60‑‑‑Endorsement made by Registrar on registered document‑‑­Effect‑‑‑Such endorsement did not prove that the document was executed by the vendor in favour of the vendee and the price/consideration was paid to the vendor‑‑‑Only presumption of correctness was attached to such endorsement.

Muhammad Tufail v. A. Aziz 1988 CLC 137; Pirala v. Noora PLD 1976 Lah. 6; Gopal Das and others v. Siri Thakir Das AIR 1943 PC 83; Muhammad Chiragh v. Daulay Khan PLD 1954 Dacca 134; National Bank of Pakistan v. Fine Arts Textile Industries 1991 CLC Note 75 at p.79; Muhammad Sher v. Muhammad Azim PLD 1977 Lah. 729 Siraj Din v. Mst. Jamila and another PLD 1997 Lah. 633 and Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 ref.

(j) Transfer of Property Act (V of 1882)‑‑‑

‑‑‑‑S. 54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Denial of execution of registered sale‑deed‑‑‑Suit of petitioner/vendor for cancellation of sale‑deed was dismissed by Trial Court and appeal before Lower Appellate Court also met the same fate‑‑‑Validity--‑‑Petitioner/vendor denied execution of any sale­deed‑‑‑Proper procedure as mentioned in Chap. VI of Registration Act, 1908, was not followed while registrating the sale‑deed in question‑‑­Respondent/vendee failed to prove the payment of consideration to the petitioner/vendor‑‑‑Possession of the suit property was not transferred and the same was with the petitioner/vendor‑‑‑Judgments and decrees of both the Courts below, in favour of the respondent/vendee were set aside.

(k) Civil Procedure Code (V of 1908)‑‑

‑‑‑‑S.115‑‑‑Revision‑‑‑Concurrent findings of facts‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑‑Where High Court was satisfied that the findings of both the Courts below were based on misreading or non‑reading of evidence, the Court in its revisional jurisdiction would legally set at naught such findings of both the Courts below‑‑‑Concurrent findings did not always stand in the way of High Court to set aside such findings in appropriate cases.

Syed Samer Hussain Shah for Petitioner.

Manzoor Hussain Butt for Respondent.

Date of hearing: 24th August, 1999.

2000 C L C 439

[Lahore]

Before Muhammad Akhtar Shabbir, J

ABDUL KHALIQ‑‑‑Petitioner

versus

MUHAMMAD HUSSAIN ‑‑‑Respondent

Civil Revision No.332‑D of 1992, decided on 15th October, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 12(2)‑‑‑Application to set aside decree‑‑‑Application under S.12(2), C.P.C.‑‑‑Scope‑‑‑Application under S.12(2), C.P.C.,‑ could be filed to challenge the decree of the Court, where such decree was passed on the basis of fraud, misrepresentation and want of jurisdiction.

Noor‑ul‑Amin and another v. Muhammad Hashim and 27 others 1992 SCMR 1744 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 12(2)‑‑‑Application to set aside decree‑‑‑Forum of such application‑‑­Application under S.12(2), C.P.C., could be filed in the Court which had passed the decree.

(c) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Land Reforms Regulations, 1972 (M.L.R. 115), para.26‑‑‑Pre­ emption suit on the basis of tenancy‑‑‑Jurisdiction to try such suit‑‑‑Filing of civil suit before Civil Court against a decree passed by Collector ‑‑‑Validity‑‑­ Revenue Authorities were competent to decide such suits under Land Reforms Regulation, 1972‑‑‑Decision of Revenue Authorities on any matter which the Authorities were competent to decide, could not be brought under challenge before a Civil Court in a civil suit in view of the provisions of para. 26, Land Reforms Regulation, 1972‑‑‑Judgment and decree passed by Collector in favour of the respondent could not be set aside by the Civil Court‑‑‑Order of Lower Appellate Court setting aside judgment and decree of Trial Court was unexceptionable and no illegality was committed.

Muhammad Hussain and others v. Malik Allah Ditta and others 1993 SCMR 1469 rel.

Muhammad Khalid Alvi for Petitioner.

Muhammad Naveed Hashmi for Respondent No.5.

2000 C L C 451

[Lahore]

Before Amir Alam Khan, J

HABIB BANK LIMITED‑‑‑Appellant

versus

Malik ATTA MUHAMMAD and 4 others‑‑‑Respondents

Civil Revision No.668 of 1993, decided on 16th August, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑---

‑‑‑‑Ss. 47 & 145‑‑‑Execution of decree‑‑‑Liability of surety‑‑‑Surety not arrayed as a party to suit or appeal‑‑‑Execution of decree against such surety‑‑‑Validity‑‑‑Decree passed against a judgment‑debtor could also be executed against such surety, which was not even arrayed as a party to suit or appeal‑‑‑Liability of the surety was co‑extensive with the judgment‑debtor and continued till such tune that the decree was either satisfied by the judgment‑debtor or by the surety.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 145‑‑‑Expression "deemed to be", appearing in S.145, C.P:C.‑‑­Meaning and scope‑‑‑Such expression refers to the law whereby a thing is presumed to be in existence while in fact it is not in existence‑‑‑Liability of 'surety in execution proceedings‑‑‑Surety need not be made a party to the proceedings until execution is sought against such Person.

Khan Muhammad Ishaq Khan v, Azad Sharma Transport Co. Ltd. and others PLD 1953 Lah 22; Cholappa Gattina Sanna and another v. Ramchandra Anna Pai AIR 1920 Bom. 331 and Parkash Chand Mahajan v. Madan Theatres Ltd. AIR 1936 Lah. 463 ref.

(c) Words and phrases‑‑‑

‑‑‑‑Expression "Deemed to be"‑‑‑Meaning‑‑‑Such expression refers to the law whereby a thing is presumed to be in existence, which in fact is not in existence.

Khan Muhammad Ishaq Khan v. The Azad Sharma Transport Co. Ltd. and others PLD 1953 Lah 22: Cholappa Gattina Sanna and another v. Ramchandra Anna Pai AIR 1920 Rom. 331 and Parkash Chand Mahajan v. Madan Theatres Ltd. AIR 1936 I ah 463 ref.

(d) Interpretation of agreement‑‑

‑‑‑‑ While interpreting an agreement, it is necessary to see the intention of the parties as can be gathered from the circumstances leading to the agreement itself and the words of various clauses used therein.

Raj Raghubar Singh and another v. Jai Indra Bahadur Singh AIR 1919 PC 55 ref.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 147 & 96‑‑‑Appeal‑‑‑Liability of surety‑‑‑Scope‑‑‑Appeal was continuation of suit‑‑‑If appeal was accepted, the liability of the surety was revived‑‑‑Such revived liability could be enforced against the surety.

Pindi v. U. Thaw Ma and another AIR 1931 Rang. 281(2); Tavvala Veeraswami v. Pulim Ramanna and others AIR 1935 Mad. 365 and Chhotey Lal and another v. Sohrab Ali Khan and another AIR 1925 Oudh 592 ref.

(f) Civil Procedure Code (V of 1908)‑‑---

‑‑‑‑S. 147 & O. XXI, R. 54‑‑‑Execution of decree‑‑‑Issuance of warrant of attachment against surety‑‑‑Revival of liability of the surety‑‑‑Petitioner stood surety against the defendant, before the Trial Court, in a suit for recovery of money‑‑‑Suit was dismissed by the Trial Court and the surety was discharged‑‑‑Appeal of the respondent/plaintiff was allowed and the suit was decreed‑‑‑Executing Court issued a warrant of attachment against the petitioner/surety‑‑‑Validity‑‑‑Attachment effected at the primary stage, though had ceased with the dismissal of the suit but the same revived on the decreeing of the suit in appeal or by the same Court‑‑‑Such revival would be considered to be in force from the date on which the attachment before .judgment was effected as provided for in the Civil Procedure Code‑‑‑Order discharging the surety would not stand in the way of executing the decree against the surety‑‑‑Act of the Court could not prejudice the rights of the parties as were available to them under the law and the facts constituting their cause‑‑‑Liability of the surety was co‑extensive with the principal‑‑­Petitioner/surety failed to prove that the Executing Court had proceeded with any material irregularity amounting to illegality in the exercise of its jurisdiction while issuing warrant of attachment against the petitioner/surety.

C. Soon Thin v. K.S.A.V. Chettyar Firm AIR .1936 Rang. 342; Daggupati Nayudamma v. Sait Sivaraji Dharmachand Kottuvaru and another AIR 1943 Mad. 515; D. Manackjee v. R.M.N. Chettyar Firm AIR 1927 Rang. 310; Balaraju Chettiar v. Masilamani Pillai and others AIR 1930 Mad. 514; Gollamudi Venkatasubba Rao v. Chaparala Rosayya and another AIR 1915 Mad. 653; Shankar v. Ram Kishen AIR 1915 Lah. 217; Iranguada Shidramgauda Patil v. Irbasappa Gangappa Dalal and others AIR 1927 Bom. 84; Thamipi Muhammad Abdulkhadhir v. Padmanabha Pillai Parameswaran Pillai AIR 1952 Tr.C 414 ref.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Jurisdiction of Court‑‑‑Scope‑‑‑While exercising revisional power under S.115, C. P.C. High Court can pass such orders as it thinks fit keeping in view the facts and circumstances of each case‑‑‑Such orders are to be passed within the bounds of law.

Nazim Ahmad Khan for Petitioner.

Sh. Naveed Shehryar for Respondent.

Nemo for Respondent No.5.

Dates of hearing: 16th November, 1998 and 31st July, 1999.

2000 C L C 463

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD RAMZAN‑‑‑Petitioner

versus

MUHAMMAD AMIN and 4 others ‑‑‑ Respondents

Civil Revision No.527‑D of 1995, heard on 22nd January, 1999.

Muhammadan Law‑‑‑

‑‑‑‑Gift‑‑‑Validity‑‑‑Gift deed was based upon fraud and product of impersonation‑‑‑Suit to set aside such gift‑‑‑Limitation‑‑‑Gift deed was got registered after the death of the owner of the suit property‑‑‑Date of the death of the owner before such registration of deed was established‑‑‑Trial Court decreed the suit and the Lower Appellate Court upheld the decision of the Trial Court‑‑‑Question of limitation raised‑‑‑Validity‑‑‑Where the gift deed was void, no limitation would run against the same‑‑‑No substantial misreading or non‑reading or material irregularity had been pointed out by the petitioner/defendant to warrant interference.

Malik Muhammad Iqbal Rasool for Petitioner. Ch. Gauhar Ali and Muhammad Ramzan Khalid for Respondents.

Date of hearing: 22nd January, 1999.

2000 C L C 471

[Lahore]

Before Tassaduq Hussain Jilani, J

STATE‑‑‑Petitioner

versus

M.D., WASA and others‑‑‑Respondents

Writ Petition No.5790 of 1997, heard on 1st August, 1997

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Public interest litigation‑‑­Concept‑‑‑Rationale behind such litigation in developing countries is the social and educational backwardness of its people, the dwarfed development of law of tort, lack of developed institutions to attend the matters of public concern, the general inefficiency and corruption at various levels‑‑‑In such a socio‑economic and political milieu, the non‑intervention by Courts in complaints of matters of public concern will amount to abdication of judicial authority‑‑‑Issues of public concern, enumerated.

Indian Constitution by Dr. (Justice) Durga Das Basu ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Minor daughter of the petitioner died because of an open manhole of sewerage‑‑‑Authorities had‑paid compensation to the petitioner‑‑‑High Court showed great concern over such negligence and to prevent the recurrence of such tragedy, ordered Authorities to take action against concerned officials in future.

Tahir Haider Wasti, A.A.‑G. for the State.

Bashir Ahmad Mirza for Respondent No. 1.

Sh. Ziauddin Ahmad Qamar, President, Multan High Court Bar. Multan

Gulzar Ahmad Ali for the Pakistan Railways

Date of hearing: 1st August, 1997.

2000 C L C 477

[Lahore]

Before Amir Alam Khan, J

SIDDIQUE MUHAMMAD MALIK and 4 others‑‑‑Appellants

versus

IMMAD IFTIKHAR MALIK and another‑‑‑Respondents

C.O. No.6 of 1998, decided on 12th November, 1999.

(a) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 76‑‑‑Shareholdings of company, transfer of‑‑‑Procedure‑‑‑Proper instrument duly stamped and executed by the transferor and the transferee has to be made‑‑‑When such instrument is delivered to the company alongwith the scrips, the shareholding of company is said to be legally transferred.

(b) Companies Ordinance (XLVII of 1984)‑‑--

‑‑‑‑Ss. 161(8) & 178‑‑‑Election of Directors‑‑‑Petition challenging such election‑‑‑Maintainability‑‑‑Voting power of the members was intrinsically linked with the shareholding ‑‑‑If the petitioners had 10% of the voting power, the petition under S.161(8) of Companies Ordinance, 1984 was maintainable.

(c) Interpretation of statutes‑‑‑

‑‑‑‑ Headings of sections‑‑‑Reference to such headings with regard to sections while ascertaining the intention of the Legislature‑‑‑Validity‑‑‑When the words used in a section are explicit anti clear, heading of the section cannot be referred to understand the meaning of the sections nor the headings control, curtail or restrict their scope and working.

Election Commission of Pakistan v. Asif 1qbal and others PLD 1992 SC 342 and Firdaus Cooperative Housing Society Ltd. v. Secretary Labour and Cooperative Department, Government of Sindh and 11 others 1987 CLC 1457 ref.

(d) Companies Ordinance (XLVII of 1984)‑‑

‑‑‑‑Ss. 7 & 161(8)‑‑‑Election of Directors, challenge to‑‑‑Jurisdiction of Civil Court‑‑‑When the field was occupied by a special law providing special forum for adjudication of a dispute, then the Civil Court would not have the jurisdiction to decide such matter‑‑‑Remedy to such election dispute was provided in the nature of a petition to Company Judge under S.161(8) of Companies Ordinance, 1984, therefore, the Civil Court was not the proper forum for the matter.

Messrs Chalna Fibre Company Limited, Khulna and 4 others v. Abdul Jabbar and 9 others PLD 1968 SC 381 and Mian Ijaz Siddique and others v. Mst. Kaneez Begum and 2 others 1992 CLC 1658 distinguished.

(e) Companies Ordinance (XLVH of 1984)‑‑‑

‑‑‑‑Ss. 50, 159, 161(8), 179 & 290‑‑‑Election of Directors, challenge to‑‑­Calling of extraordinary general meeting‑‑‑Issuance of notices of such meeting to the members jointly at the address of the company ‑‑‑Effect‑‑­Notice under S.50, Companies Ordinance, 1984 issued jointly was illegal and wrong, for, every member was to be issued separate and independent notice and the same should have been issued and served on that member individually on his address‑‑‑Joint notices were issued at the address of the company and the same were received by Accountant of the company‑‑­Address of the company was not the home address of the members and the Accountant of the company was. not their representative‑‑‑Such material defect in issuance of notice, had the resultant effect of preventing the petitioners from participating in the proceedings of the meeting‑‑‑When provisions as to issuance and service of notice as contained in S.50, Companies Ordinance, 1984, had not at all been adhered to, extraordinary meeting held was not lawful and proceedings taken therein were neither legal nor were binding on the company‑‑‑Such proceedings being illegal, were quashed in circumstances.

Haji Abdul Jabbar and others v. Haryana Asbestos Cement Industries 1987 CLC 726 and Naveed Textile Mills Ltd., Karachi and 3 others v. Central Cotton Mills Limited, S.I.T.E., Kotri, District Dadu and 2 others PLD 1997 Kar. 432 ref.

(f) Companies Ordinance (XLVH of 1984)‑‑‑

‑‑‑‑S. 173‑‑‑Minutes book, maintaining of‑‑‑Recording of minutes on loose papers‑‑‑Validity‑‑‑Minutes book of the company was of great importance as the same contained minutes of solemn proceedings of the company‑‑‑Minutes recorded on the loose papers might not be given any scanctity accordingly.

Kh. Saeed‑uz‑Zafar and Muzammil Akhtar Shabbir for Petitioners.

M. Saleem Sehgal, M. Naeem Sehgal, Shams Mahmood Mirza and Mrs. Rubina Yasmeen for Respondents.

Dates of hearing: 16th, 20th, 28th July; 11th and 12th November, 1999.

2000 C L C 492

[Lahore]

Before Ali Nawaz Chowhan, J

MADDAD KHAN‑‑‑Petitioner

versus

MEMBER, BOARD OF REVENUE and others‑‑‑Respondents

Writ Petition No. 14504 of 1999, decided on 26th August, 1999.

(a) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑Rr. 17 & 22‑‑‑l.umberdar, appointment of‑‑‑Matters to be considered‑‑­While keeping in mind the duties which are to be performed by a Lumberdar in a village, it is imperative that a person without much rivalry should be considered, if such person is otherwise eligible.

(b) West Pakistan Land Revenue Act (XVU of 1967)‑‑‑--

‑‑‑‑S. 164‑‑‑Board of Revenue,' powers of‑‑‑Scope‑‑‑Board in its supervisory capacity can always look into facts of the case and correct errors committed by the subordinate Authorities while exercising powers under S.164, West Pakistan Land Revenue Act, 1967.

(c) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑R. 17‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Lumberdar, appointment of‑‑‑Petitioner was appointed as Lamberdar by the District Collector‑‑‑Such appointment was contested by the respondent who was a brother of the petitioner‑‑‑Board of Revenue in revision directed the District Collector to re‑invite applications for the appointment of Lumberdar‑‑‑Board of Revenue did not find the petitioner to be a fit person for such appointment as the petitioner had rivalry in his village with the respondent‑‑‑Validity‑‑‑Such order passed by the Board of Revenue was within the competence of the Board‑‑‑Petitioner had an opportunity of contesting for the post alongwith any other member of the family of the previous Lumberdar‑‑‑Order of the Board of Revenue was not interfered with in circumstance.

Punjab Land Administration and Management Manual by McCdoule's and M Corrie ref.

Noor Muhammad Awan for Petitioner.

Khawaja Abdul Hameed Butt for Respondents.

Date of hearing: 26th August, 1999.

2000 C L C 506

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

PAKISTAN STATE OIL COMPANY LIMITED‑‑‑Petitioner

versus

Begum REHANA SARWAR‑‑‑Respondent

Second Appeal from Order No.86 of 1999, decided on 17th September 1999.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑Ss. 2(d) & .2(f)‑‑‑Terms "rented land" and "non‑residential building"‑‑­Meaning and scope‑‑‑Rented land is one which is let separately for the purpose of business or trade while non‑residential building is one which is being solely used for the purpose of business or trade.

Muhammad Khan and 18 others v. Mst. Alamtab and 8 others PLD 1973 Quetta 28; M. Imamuddin v. Mst. Surriya Khanum PLD 1991 SC 317 and Mistri Ahmad Hassan v. Abdur Rauf Khan and others 1986 SCMR 494 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 2(a), 2(d), 2(f) & 13‑‑‑Bringing ‑of premises within the definition of building/non‑residential building‑‑‑Proof‑‑‑If building was not rented out and all that was given on rent, was a plot which was acquired for principal use of business, rented land, held, was the subject‑matter in issue‑‑‑Mere fact that tenant raised construction with the implied or express consent of the landlord on a plot of land and rent of the land acquired on rental basis, would not bring such premises within the definition of non‑residential building as no structure alongwith the land was ever given on rental basis‑‑‑To bring the premises within the definition of building or non‑residential building, it was required to be proved that the building or building alongwith the land was let out for commercial use.

Noor Muhammad Khan v. Haji Muhammad Ali Khan and 24 others PLD 1973 SC 218 ref.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑

‑‑‑‑S. 5‑A‑‑‑Statutory increase in monthly rent‑‑‑Applicability‑‑‑Provisions of S.5‑A, West Pakistan Urban Rent Restriction Ordinance, 1959 are applicable to non‑residential building and not to the rented land or to the residential building‑‑‑Rent of non‑residential building stands automatically increased at the end of every three years of tenancy of 25 % of the rent already being paid by the tenant.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑----

‑‑‑‑S. 15(6) [as inserted by Punjab Urban Rent Restriction (Amendment) Act (III of 1991)]‑‑‑Second appeal‑‑‑Maintainability‑‑‑Right of second appeal under S.15(6), West Pakistan Urban Rent Restriction Ordinance, 1959 has been extended to cases of eviction from "residential building"‑‑‑No such right is available in the cases pertaining to the non‑residential building or rented land.

Muhammad Ali Bhatti v. State Life Insurance Corporation of Pakistan 1991 MLD 223 ref.

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13 & 15(6) [as inserted by Punjab Urban Rent Restriction (Amendment) Act (III of 1991)]‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Second appeal‑‑Maintainability‑‑‑Converting of such appeal into Constitutional petition‑‑‑Scope‑‑‑Appellant/tenant was leased out rented land and the order of ejectment was passed in regard to such land‑‑‑Second appeal was not competent or maintainable‑‑‑Too harsh if the appellant/tenant was non‑suited on the simple ground that such appeal would not lie and that the Constitutional petition should have been filed in the first instance‑‑‑Where second appeal had been found to be, incompetent, same was treated as Constitutional petition, by High Court and was disposed of accordingly.

(f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑

‑‑‑‑S. 15(6) [as inserted by Punjab Urban Rent Restriction (Amendment) Act (III of 1991)]‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Time‑barred second appeal‑‑‑Constitutional petition‑‑‑Converting of second appeal into Constitutional petition‑‑‑Contention by respondent/landlady was that the appeal was not filed within time and the period consumed by the appellant/tenant by withholding application form for the supply of certified copy, could not be excluded‑‑‑Validity‑‑‑When appeal was converted into the Constitutional petition, such objection of the respondent/landlady was not material.

(g) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑--

‑‑‑‑S. 13‑‑‑Landlord and tenant, relationship of‑‑‑Interest of agent of the tenant in lease‑hold rights‑‑‑Validity‑‑‑Rented land was leased out to the tenant who, for all intents and purposes, was a tenant‑‑‑When the tenant allowed his agent/dealer to run the business, such agent/dealer could not claim any interest in the lease‑hold rights nor could seek entry in the proceedings for eviction initiated by the landlady against the tenant‑‑­Agent/dealer of the tenant was not impleaded in the proceedings in circumstances.

(h) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑---

‑‑‑‑Ss. 5‑A & 13‑‑‑Default‑‑‑Claiming of amount of default in monthly rent for the period after the filing of ejectment petition‑‑‑Scope‑‑‑Default alleged in the payment of regular rent was with respect to period covering October, 1994 to September, 1995 whereas the petition was filed in July, 1995‑‑­Default could be claimed for the period before the filing of ejectment petition and not thereafter.

(i) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Excessive rent, demand of‑‑‑Non‑acceptance of rent by landlord‑‑­Effect ‑‑Neither such demand of excessive rent absolves the tenant of his obligation to pay or tender rent due, nor non‑acceptance of rent by landlord on one occasion, would exonerate the tenant from his liability to tender or deposit the same of the successive periods.

Khurshid Alain v. Sh. Fazal Karim 1983 CLC 2538 and Yousaf Shah through his brother represented by 9 legal heirs v. Haji Ghulam Jan Khan 1975 SCMR 464 ref.

(j) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Wilful default in monthly rent‑‑‑Scope‑‑‑Tenant did, not tender rent for the months of October, 1994 to February, 1995 and monthly rental for the successive periods within the stipulated time‑‑‑If the disputed rent was deposited in February, 1996, wilful default, held, was committed and the same would make the tenant liable to ejectment ‑‑‑Tenant was found to be wilful defaulter and the Lower Appellate Court validly allowed the ejectment on such ground‑‑‑No ground for interference in such order passed by the Lower Appellate Court having been made out, petition was dismissed.

Dr. A. Basit for Appellant.

Syed Muhammad Kalim Ahmad Khurshid and Ch. Muzammal Khan for Respondent.

Dates of hearing; 10th and 13th September, 1999

JUDGMENT

This second appeal arises from order, dated 20‑2‑1999 of the learned District Judge, Lahore, by which appeal of respondent was allowed and an order of ejectment was passed against the appellant.

1. Respondent instituted a petition under section 13 of the Urban Rent Restriction Ordinance, 1959, against the appellant, claiming that being landlady, she rented out to the appellant land measuring 2910 sq. ft. bearing Survey No.3025 at the McLeod Napier‑Road Crossing, Lahore, the appellant was tenant in respect of the said land, the land was rented out vide the Lease Agreement, dated 10‑10‑1969, for the installation of Petrol Pump and Service Station, the appellant was running the Petrol Pump and Service Station in the name and style of Sultan Bahu Petrol Pump, the monthly rental was payable for each year in advance by 10th of October; on the enforcement of the Punjab Urban Rent Restriction (Amendment) Act of 1991 the appellant was paying rent at the rate of Rs.2750 per month and in terms of newly‑added provision of section 5‑A of the Act, the appellant was duty bound to increase monthly rent by 25% w.e.f. 1‑7‑1989, the appellant failed to increase the monthly rental as required in law and that the appellant committed wilful default in the payment of regular rental from October, 1994 to September, 1995 and was thus, liable to eviction.

2. The appellant contested the ejectment petition and maintained that the respondent had no cause of action to file the petition, the petition was moved for causing unnecessary harassment to the appellant and to extract money over and above the agreed rent, the petition was mala fide, the respondent had no locus standi to file the petition, the petition was not maintainable under the Ordinance, it was violative of the terms and conditions of agreement, dated 10‑10‑1969, there being an Arbitration Clause, the proceedings under the Ordinance were not competent, the provisions of section 5‑A of the Ordinance were not applicable and that no arrears of rent were due.

3. Initially, the issue in regard to the applicability of provisions of section 5‑A of the Punjab Urban Rent Restriction Ordinance, was framed but later on the issues were amended and new issues were added. Resultantly, the parties were invited to lead evidence on the following issues:‑‑

(1) Whether the provisions of section 5‑A of the Rent Restriction Ordinance is applicable in the present case? If so, its effect? OPR

(1‑A) Whether the respondent has defaulted in payment of rent? OPA

(1‑B) Whether the petitioner has no cause of action, locus standi and the petition is mala fide and is liable to be dismissed? OPR

(1‑C) Whether the petition is incompetent in view of an arbitration clause in the agreement? OPR

(1‑D) Whether the petition is false, frivolous and vexatious and needs rejection with exemplary cost.

1. The learned Rent Controller vide order, dated 7‑9‑1998, dismissed the ejectment petition but in appeal, the order was set aside, the appeal was allowed, and in result the eviction order was passed against the appellant.

2. Learned counsel for the appellant argued that initially land measuring 2910 sq. ft. was leased out in favour of the appellant but on the widening of road, the appellant was deprived of a portion of the rented land which required rateable reduction in the rent but the appellant continued making payment of the rent on the agreed terms and since now the issue of default has been raised, the appellant is entitled to press for charging of the monthly rental by allowing rateable reduction therein, proportionate to the reduction of the leased area. It was contended that the provisions of section 5‑A of the Ordinance were attracted to the non‑residential buildings but in this case, no non‑residential building was rented out and, in fact, a piece of land was rented out for commercial purposes, and resultantly the appellant was neither obliged to make any increase in rent by 25 % nor can be adjudged as defaulter on account of its non‑payment. It was maintained that the provisions of section 5‑A would also be not attracted on account of executed agreement between the parties. It was added that on acquiring the rented land, the appellant gave dealership/licence to the respondent who did run Petrol Pump for some time and later assigned the rights to one Rauf who was attorned by the appellant as dealer, therefore, the dealer who is now running the Petrol Pump as an agent of the appellant would be necessary party to the proceedings and having not been joined, the petition could not proceed. Lastly, it was argued that there was no wilful default, the respondent had admitted that the cheque was not received and that the rent having been subsequently, tendered it would not be a case where the discretion could be exercised against the appellant. . .

3. While defending the impugned order, learned counsel for the respondent strenuously argued that the appeal was barred by time, there was no good ground for condonation of delay. Section 5 of the Limitation Act is not applicable to the second appeal, the time consumed by the appellant by retaining application could not be excluded under section 12 of the Limitation Act, the appeal itself would not be maintainable if the argument of appellant's counsel as raised is accepted and that there was a wilful default in the payment of rent from October. 1994 to September, 1995, the tender of rent through cheque was not a valid tender under section 13 of the Rent Restriction Ordinance, the findings of fact recorded by the learned District Judge did not suffer from any misreading of the evidence on record and that in the peculiar circumstances of the case, the discretion was rightly exercised against the appellant.

4. The learned Rent Controller, on apparaisal of the evidence, observed that the provisions of section 5‑A of the Punjab Urban Rent Restriction Ordinance, 1959 was applicable to non‑residential building and that the property in dispute was a rented land, therefore, the appellant was not obliged to increase rent by 25 % nor could be held to be defaulter on account of non‑increase of rent by 25%. To the contrary, the learned District Judge took the view that the property in dispute was a non‑residential building, the provisions of section 5‑A of the Ordinance were attracted and that the appellant having failed to increase the rent in terms thereof was liable to eviction.

5. The first and foremost question which requires attention is as to what is the nature of the premises in dispute. In the ejectment application, respondent claimed that she had rented out land measuring 2910 sq. ft ­bearing Survey No.3025 at the McLeod‑Napier Road Crossing, Lahore. Lease Agreement has been tendered in evidence as Exh.R.I. Recital of agreement (Exh.R.1) is to the following effect:‑‑ .

"Whereas the lessor is in rightful possession of the plot of land (more particularly described in the schedule ' A' attached). Hereto and hereinafter called 'The land' and has agreed with the company for the grant of a lease of the land to the company as hereinafter provided."

1. From the recital of the lease agreement and also various covenants therein, one gets an irresistible impression that the plot of land was given on rental basis for the use of business and for commercial purpose, with permission to raise construction of petrol pump and service station. The subject‑matter of lease was land "without structure" though there was express permission to raise construction for running a petrol pump:---

2. Section 2(f) of the Ordinance defines "rented land" as "any land" let separately for the purpose of being used principally for business or trade". The word "building" has been defined in clause (a) of section 2 of the Ordinance as "any building or part of a building', let for any purpose, whether being actually used for that purpose or not, including any land, godowns, out‑houses, together with furniture let therewith but does not include a room in a "Sarai", hotel, hostel or boarding house. Similarly, "non‑residential building" has been defined in section 2(d) of the Ordinance as "a building being used solely for the purpose of business or trade". From the definition of the term "non‑residential building" and "rented land", it is obvious that the rented land is one which was let separately for the purpose /a of business or trade while non‑residential building is a building which is being solely used for the purpose of business or trade. In Muhammad Khan and 18 others v. Mst. Alamtab and 8 others PLD 1973 Quetta 28, it was observed that the land not let out chiefly or mainly for purpose of business or trade would not fall in the definition of "rented land". In M. Imamuddin v. Mst. Surriya Khanum PLD 1991 SC 317, it was ruled that the land would fall within the definition of "rented land" if used for commercial purpose. In Mistri Ahmad Hassan v. Abdur Rauf Khan and others 1986 SCMR 494, it was observed that the tenant of rented land and superstructure thereon without any machinery would be a tenant at most of either rented land or non‑residential building which comes within ambit of Ordinance falling within the jurisdiction of Rent Controller.

3. From the rule in the precedent case, and keeping in view the definitions of words "rented land", "building" and "non‑residential ­building", if the facts of the present case are examined, one finds that no building was rented out and all that was given on rental basis was a plot which was acquired by the tenant for principal use of business. It is thus, a case in which the rented land was subject‑matter in issue. Mere fact that the tenant raised construction with the implied or express consent of the landlord, on a plot of land and rent of the land acquired on rental basis, would not bring the premises within the definition of non‑residential building as no structure alongwith the land was ever given on rental basis. To bring the premises within the definition of building/non‑residential building, one needs to prove that the building or building alongwith the land was let out for commercial use. If the tenant raised construction with the express or implied consent of the landlord, then he accepts the responsibility to remove the same at the time of eviction and any breach thereof empowers the Rent Controller to direct the removal of the superstructure for enforcing eviction order. Reference can be made to Noor. Muhammad Khan v. Haji Muhammad Ali Khan and 24 others PLD 1973 SC 218 where it was ruled that 'eviction" in section 13 of the Urban Rent Restriction Ordinance, includes ordering removal of superstructure. This being so, the learned Rent Controller in the cases of eviction from the rented land, on which the superstructure is raised by the tenant with the permission of the landlord will be empowered to direct eviction by removing the superstructure existing thereon.

4. Having found that the property in dispute in this case, was a "rented land" within the meaning of term as understood in the Ordinance. The next question would be as to whether section 5‑A of the Ordinance VI of 1959, was attracted and if not so, whether the tenant could be held to be defaulter due to non‑payment of rent by making 25 % increase after every three years. The provisions of section 5‑A of the Ordinance, make it obvious that the same are applicable to non‑residential building and not to the rented land or to the residential building. In terms of this provision, the rent of non­ residential building stands automatically increased at the end of every three years of tenancy by 25 % of the rent already being paid by the tenant, and this provision of law was made applicable w.e.f. 1st of July, 1989. Since in this case, the rented land was involved and no non‑residential building was rented out, therefore, the respondent could not possibly expect automatic increase of rent by 25 %. Reference was made to sub‑clause (6) of section 5‑A of the` Ordinance which contemplates that the provisions of subsections (1) to (5) of section 5‑A, shall not apply if the landlord and a tenant agree to increase the rent by an agreement in writing executed before the Controller. Of course, this situation does not exist in the present case as it is nobody's case that by an agreement before the Rent Controller rent was mutually agreed by the parties .

5. This brings the case to the third limb of the issue which pertains to the maintainability of the second appeal. Subsection (6) of section 15 of the Ordinance was inserted by the Punjab Act, III of 1991. In terms thereof, in case of non‑residential building. the person aggrieved by an order passed on appeal was given a right to prefer a second appeal before the High Court within 30 days from the date of the order of the appellate authority. The provision makes it obvious that the right of second appeal has been extended in cases of eviction from "non‑residential building", while no right of second appeal is available in the cases pertaining to the non‑residential building or rented land. Reference can be made to Muhammad Ali Bhatti v. State Life Insurance Corporation of Pakistan 1991 MLD 223 where it was observed that a tenant of rented land cannot maintain a second appeal before the High Court; on the force of amended subsection (6) of section 15 of the Ordinance. In view of the findings that the appellant was leased out rented land and the order of ejectment has been passed in regard to such land, the present second appeal will not be competent or maintainable.

6. In the course of hearing of this appeal, the learned counsel for the appellant, faced with the argument as to the competency of the appeal, had maintained that if the appeal would not be found to be competent, the same should be decided on merits by treating it as writ petition. On account of the findings hereinabove, the appeal has been found to be incompetent which is Being treated as writ petition and is being disposed of accordingly, as it will be too harsh if the appellant is non‑suited at this stage on the simple ground that the appeal would not lie and that writ petition should have been filed in the first instance.

7. Since the appeal has been treated as writ petition, therefore, the objection of 'the learned counsel for the respondent that the appeal was not filed within time and the period consumed by the appellant by withholding application form for the supply of certified copy could not be excluded, will not remain material. Had it been a case of appeal or the appeal had been found to be maintainable, then it would have been difficult for the appellant to explain the delay which occurred, due to the withdrawal of application for supply of certified copy and refiling the same after the expiry of limitation.

8. As to the merit, of this case, the objection of learned counsel for the petition was two‑fold viz. the rent should be reduced in proportion to the reduction of the leased area and secondly the cheque having been refused, the petitioner should not be treated to be wilful defaulter and that the dealer (Rauf) should have been impleaded as a party. In so far as the impleadment of dealer (Rauf) is concerned, it is observed that at the initial stage, he did make effort to become a party which could not succeed and accepted the fate of his application, and did not agitate the matter any further. No appeal was filed by the dealer against the order of ejectment, before the learned District Judge nor he made effort to become party in the proceedings of first appeal and, therefore, the impugned order cannot be challenged on the ground of his non‑impleadment. Even otherwise the rented land was leased out to the appellant who for all intents and purposes was a tenant and, if, being tenant it allowed its agent/dealer to run the business, the agent or dealer cannot claim any interest in the lease‑hold rights nor seek entry in the proceedings for eviction initiated by the landlady against the tenant. The objection raised is, therefore, devoid of substance.

9. As regards the reduction in lease area, the appellant never claimed reduction in the rate of monthly rental at any stage before the filing of ejectment proceedings and instead admits to have opted to pay rent at the agreed rate under the lease. It is also observed that the plea of rateable reduction of rent was never raised before the learned Rent Controller and in view thereof, it would be too late in the day to raise such objection. By its own conduct, the appellant will not be entitled to ask for any reduction in the monthly rental of the rented land.

10. The next question which needs determination is as to whether a 'wilful default was committed by the petitioner, if so, for what period. The default claimed is under section 5‑A of the Ordinance and also in the payment of regular rent. In so far as the plea of default under section 5‑A of the Ordinance is concerned, the same is untenable in view of the findings that the provisions of section 5‑A of Ordinance were not attracted in this case.

11. The default claimed in the payment of regular rent was with respect to period covering October, 1994 to September, 1995. The ejectment petition was filed on 25‑7‑1995. This being so, the default could be claimed for the period before the filing of ejectment petition and not thereafter. Defence of the appellant was that cheque, dated 2‑10‑1994 in the sum of Rs.33,000 was presented which was not received on the ground that it did not include 25 % increased amount of rent. Reliance was placed on the statement of landlady who did not deny that she had not received the cheque as it did not cover the entire rental of the property. In terms of the lease agreement, the yearly rental was payable in advance. Even if the mode of advance payment is ignored yet, in law, the tenant is expected to make regular payment of the monthly rental. The rent for the month of October, 1994 was due on the 1st of November, 1994 which appellant was expected to pay within 15 days from the date fixed for the payment of rent. In the absence of any such date, the rent should be paid within 60 days from the period for which the same would be due. The rent for the month of November, .1994 would be due on the 1st of December, 1994 while the rent for the month of December, 1994 would be due on the 1st of January, 1995. Similarly, the rent for January and February, 1995 would become due on the 1st of each succeeding month. The cheque which was statedly presented has been produced as Mark "R‑I" while forwarding letter, dated 19‑3‑1995 is Exh.R.7. Exh.R.7 would show that alongwith this forwarding letter, cheque Mark R/l, dated 2‑10‑1994 No.226635, was allegedly presented. Thus, as per the appellant's own showing, the cheque, dated 2‑10‑1994 was presented for the first time in March, 1995. The appellant was duty bound to prove that the rent for the month of October, 1994 was tendered or paid in November, 1994 and similarly, the rent for the month of November, 1994 was tendered or paid in December, 1994. In the like manner, the appellant had to prove that the rent for subsequent months was tendered or paid within the stipulated date in the succeeding months. As per own showing of the appellant, the rent from October, 1994 to February, 1995 was not tendered for payment within the stipulated period as provided in the Ordinance and instead, for the first time, the tender was allegedly made on 9‑4‑199. There was no use for preparing cheque, dated 2‑10‑994, retaining it in one's pocket and not presenting it in time. The presentation of cheque after 5 months was neither understandable nor would wash away the effect of default already committed. It was also not proved if the appellant had the money in the account in March, 1995 when the cheque, dated 2‑10‑1994 was allegedly presented. The perusal of the oral evidence would show that the appellant did not claim either sending of money order or deposit of rent from October, 1994 to February, 1995 during the stipulated period. Rather R.W.1 (representative/employee of the appellant) admitted in his testimony that the rent was neither tendered by money order nor deposited, and except the presentation of the cheque, which, of course, was presented after five months, no efforts were made to tender the rent in time. In so far as the other cheque is concerned, a copy of the same is produced as Mark R.II. This cheque was dated 17‑8‑1995 which was purportedly presented through Exh.R.8, forwarding letter which is dated 12‑9‑1995. This cannot help the appellant/petitioner for the reasons that on 25‑7‑1995, ejectment petition had already been filed. Even otherwise, the petitioner/appellant failed to prove that this cheque was ever presented to the 'respondent as the reference in the statement is to the presentation of one cheque. Be that a` it may, the alleged tender after the commission of default and that too during the pendency of ejectment, petitioner could not wash away the default already committed which cannot be overlooked. In law the tender is acceptable through money order or by deposit to the treasury. None of the two modes was ever adopted. The matter would have been otherwise, if the cheque had been received or deposited in the account of landlady and encashed, and in such situation, the tenant could plead that the cheque stood credited in the account of the respondent‑landlady, therefore, the plea of default would not be available. However, in a case where according to the appellant/petitioner, the cheque was not received nor credited in the account of respondent, it was necessary to either tender the rent through money order within time or to deposit it in the Treasury with the permission of the learned Rent Controller with notice to the landlady but this course was never adopted.

12. Another aspect relevant for deciding the question of default will be that after the alleged refusal to accept the cheque, dated 2‑10‑1994 in March, 1995, the appellant/petitioner never deposited the rent in the Treasury till such time, the Rent Controller passed the order under section 13(6) of the Ordinance. The amount is claimed to have been deposited, during the pendency of the ejectment petition, on 11‑2‑1996. If the cheque was not accepted as the appellant/petitioner had not increased the rent by 25 %, it would not exonerate the petitioner from making regular tender in the subsequent months or to deposit rent regularly in the Treasury. It is settled rule that the demand of excessive rent does not absolve the tenant of his obligation to pay or tender rent due. It is also a rule that if the landlord did not accept rent on one occasion, it would not exonerate the tenant of his liability to tender or deposit the same for the successive period. Reference can be made to Khurshid Alam v. Sh. Fazal Karim 1983 CLC 2538 and Yousaf Shah through his brother (represented by 9 legal heirs v. Haji Ghulam Jan Khan 1975 SCMR 464.

13. From the facts noted supra, it is thus, discernible that in the first instance the rent for the month of October, 1994 to February, 1995 was never tendered in time nor deposited within the stipulated period and thereafter the petitioner failed to tender or deposit the monthly rental for the successive period within the stipulated time and that the disputed rent was allegedly deposited in February, 1996. In this way, wilful default was committed which would make the appellant/petitioner liable to ejectment. The ejectment was allowed in appeal on the ground of default. In view of the above circumstances, the tenant having been found to be a wilful defaulter, therefore, no ground exists for interference in the order of ejectment.

14. For the reasons above, this appeal (treated as writ petition) is dismissed. The petitioner/appellant is allowed four months time to deliver the vacant possession to the respondent.

Q.M.H./M.A.K./P‑1/L Petition dismissed.

2000CLC517

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

PUNJAB TEACHERS HOUSING COOPERATIVE

SOCIETY LIMITED‑‑‑Petitioner

versus

SULTAN ALI and others‑‑‑Respondents

Civil Revision No.542 of 1999, heard on 27th May, 1999.

(a) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑S. 70‑‑‑Suit against society‑‑‑Two months' notice, requirement of‑‑­Scope‑‑‑All suits against society do not require notice but suit touching business of society cannot be filed without service of notice‑‑‑Issuance of two months' notice before filing of suit, touching business of society is mandatory.

(b) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑S. 70‑‑‑Civil Procedure Code (V of 1908), O.VII, RAI ‑‑‑Rejection of plaint‑‑‑Non‑issuance of notice two months prior to the filing of suit against 5ociiety‑‑‑Effect‑‑‑Plaintiff/respondent filed a suit for recovery of damages against the petitioner/society without issuance of notice as required under S.70 of Cooperative Societies Act, 1925‑‑‑Trial Court dismissed application for the rejection of plaint filed by the petitioner/society‑‑‑Validity‑‑‑Dispute between the parties pertained to business of the society and in the absence of the notice, the suit was not maintainable‑‑‑Provisions of S.70 of Cooperative Societies Act, 1925 being mandatory in nature, where no such notice was ever served or claimed to have been issued, the plaint was liable to be rejected.

Muhammad Ali Memorial Cooperative Housing Society v. Sayed Sibtey Hassan Kazmi PLD 1975 Kar. 428 and Messrs Sunshine Biscuits Ltd. v. Muhammad Hassan Lodhi and another PLD 1982 Lah. 189 ref.

Malik Khizar Hayat Khan for Petitioner.

Respondent No. 1 in person.

Date of hearing: 27th May, 1999.

2000 C L C 523

[Lahore].

'Before Syed Jamshed Ali and Syed Zahid Hussain, JJ

PROVINCE OF PUNJAB‑‑‑Petitioner

versus

Messrs MEHTABI TOWEL MILLS (PVT.) ‑‑‑Respondent

Regular First Appeal No.38 of 1995, decided on 24th November, 1998.

(a) Registration Act (XVI of 1908)‑‑

‑‑‑‑S. 2(6)(c)‑‑‑Expression "immovable property "‑‑‑While enacting Expln. "C" to S.2(6) of Registration Act, 1908, the Legislature intended to remove doubts as to the definition of "immovable property" as given in the Registration Act, 1908‑‑‑Machinery embedded in or attached to the earth when dealt with apart from the land is not immovable property.

(b) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑S. 2(6)(c)‑‑‑"Machinery", when an immovable property‑‑‑Effect‑‑‑Where one consolidated conveyance evinces transfer of land, building and machinery, it cannot be said the machinery is being dealt with apart from the land so as to attract the provisions of S.2(6) of the Registration Act, 1908, even if the cost of machinery is separately identified in the conveyance deed‑‑‑Such machinery ‑is part of immovable property in circumstances.

(c) Stamp Act (II of 1899)‑‑‑

‑‑‑‑S. 3, Sched 1, Art.23(b)‑‑‑Registration Act (XVI of 1908), S.2(6)(c)‑‑­Appeal‑‑‑Machinery‑. as immovable property‑‑‑Paying of stamp duty on the cost of machinery‑‑‑Validity‑‑‑One consolidated conveyance evinced transfer of land, building and machinery‑‑‑Building was constructed on a land leased for 99 years and the machinery was installed there‑‑‑Construction of building and installation of machinery was not meant for temporary use, as such it was an industrial unit situated in industrial estate owned by the Provincial Government‑ Instrument with regard to the selling of such industrial unit was liable to be stamped under cl.(b) of Art.23 of Sched. I to Stamp Act, 1899‑‑‑Judgment and decree passed by the Trial Court in a suit filed by respondent for the recovery of stamp duty was set aside and the suit was dismissed.

Meghraj and others v. Krishna Chandra Bhattacharii and others AIR 1924 All. 365; Khan Chand Creditor v. Nur Muhammad and others 1936 Lah. 242; Muhammad Bashir v. Haii Muhammad Siddique and 5 others 1997 CLC 466; Sh. Allah Rakha through Legal Heirs v. U.P. Church and others 1993 MLD 2126; Muhammad Aslam v. Suh‑Registrar and others 1995 CLC 674; Province of Punjab through District Collector Vehari v. Rana 1989 MLD 1009; Musai Kurmi v_ Sub. Karan Kurmi and others AIR 1914 All. 176(2); Kuppanna Chetty Ambati Ramayya Cheeti & Co. v. Collbstpr of Anuntapur and others AIR 1965 Andh. Pra. 457; Zafar‑ul‑Islam v. Mrs. Azra Malik PLD 1991 Kar. 377; Muhammad Din v. Muhammad Sadiq and 2 others 1990 MLD 2104; Ran Ranbijaya Prasad Singh v Chamaru Prasad and others AIR 1951 Pat. 625; Lukshan Jainudyong Mandir Ltd. v. Kalroram and others AIR 1965 Raj. 15 and Official Liquidator v. Sri Krishna Deo and others AIR 1959 All. 247 ref.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VII, Rr & 7‑‑‑Suit for recovery of money‑‑‑Cause of action‑‑­Disputed amount paid under protest‑‑‑Suit, maintainability of‑‑‑Scope‑‑­Where it w4s proved in evidence that the disputed amount was paid under protest, the suit was maintainable.

Akhtar Masood for Appellant.

Ch. Muhammad Hussain Jahania for Respondent.

Date of hearing; 2nd November, 1998.

2000 C L C 530

[Lahore]

Before Muhammad Akhtar Shabbir, J

WAPDA‑‑‑Appellant

versus

GFIULAM HUSSAIN ‑‑‑Respondent

Civil Revision No‑638 of 1997, heard on 5th November, 1999.

(a) Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑(. 10 ‑‑Civil Procedure Code (V of 1908), Ss.12(2) & O.V, R.20‑‑­Issuance of substituted service‑‑‑Requirements‑‑‑Pre‑conditions for substituted service‑‑Plaintiff directly sent a reference to the Trial Court against the award for the enhancement of compensation‑‑‑Notices through registered post were not issued to the Authority as the plaintiffs failed to deposit the process fee in Trial Court ‑‑Trial Court ordered for publication in newspapers and decreed the reference ex parte‑‑‑Validity‑‑‑Where the defendant. evaded service or could not be served in the ordinary way or refused to accept notice or had not been heard of for a long time and the service could not be effected in the ordinary manner, and the Court was satisfied of the same, substituted service under O.V, R.20, C.P.C., could be ordered‑‑‑Judgment of the Trial Court which was passed in a slipshod manner, was in violation of the principles of natural justice‑‑‑Ex parte proceedings against the Authority were without legal justification and the Trial Court had exercised the jurisdiction illegally and with material irregularities‑‑‑Order of the judgment of Trial Court dismissing the application of the Authority was set aside. [pp. 533, 534] A & D

M. Saadullah and 28 others v. Tahir Ali and 2 others 1986 CLC 2643; Maj. Taj‑ud‑Din and others v. Muhaihmad Akhtar and others 1989 CLC 2183; Shakoor Hussain v. Muhammad Sadiq 1991 MLD 67; Javed Raza v. Razi Ahmad 1991 MLD 2602 and Major (Retd.) Muhammad Yusuf Baig v. Mst. Saeeda Parveen 1984 CLC 668 rel..

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. V, R.20‑‑‑Substituted service ‑‑‑Object and essentials ‑‑‑ Substituted service was issued so that defendant might either himself learn about the proceedings pending against him in the Cohn or he might be informed by some other person, who had read such notice in the newspaper, in case the defendant had not read the same‑‑‑Another object behind service through publication was that the proceedings in the suit might continue and the same might not be defeated, merely because the defendant could not be served with summons in the ordinary manner‑‑‑Notice of a proceedings was a basic right of party and notice by substituted service could not be ordered unless Court came to the conclusion that party was avoiding service of notice or personal service was not reasonably practicable upon all defendants‑‑‑Mere issue of notice several times upon the defendants party without any report of bailiff, that it was not reasonably practicable for him to serve such notice, would not lay foundation for publication of notice.

Muhammad Ashraf Sheikh for Petitioner.

Syed Azhar‑ul‑Haq Gillani for Respondent.

Date of hearing; 5th November, 1999.

2000 C L C 535

[Lahore]

Before Karamat Nazir Bhandari, J

MUHAMMAD SHAFIQ SHAHID and others‑‑‑Petitioners

versus

U.E.T., LAHORE and others‑‑‑Respondents

Writ Petitions Nos.24330, 24921 and 24999 of 1998, decided on 25th August, 1999.

(a) Educational institution‑‑‑

‑‑‑‑ Admission to Engineering University‑‑Entry test, validity of‑‑‑Principle of estoppel ‑‑‑Applicability‑‑‑Candidates participated in the entry test and could not pass the same‑‑‑Such participation of the candidates was without protest‑‑‑Effect‑‑‑Where the candidates acquiesced in the holding of the test and took a chance of getting admission by doing so, in equity, such candidates were estopped from turning around and challenging such exercise‑‑‑Candidates were debarred from turning around and challenging the validity of such test in circumstances.

(b) University of Engineering and Technology Lahore Act (V of 1974)‑‑‑

‑‑‑‑S. 24(2)(aa)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Holding of entry test for admission to Engineering University ‑‑­Petitioner/candidate could not pass such test and assailed the same‑‑­Recommendation of such test was approved by the Syndicate and such approval assumed the force. of a decision of the University and became applicable immediately‑‑‑Academic Council or for that matter the Syndicate was competently entitled to take such decision under S.24(2)(aa) of University of Engineering and Technology, Lahore Act, 1974‑‑‑Holding of Entry Test was, therefore, valid and the same was beyond any legal objection.

Institute of Chartered Accountants of Pakistan, Karachi and others v. Federation of Pakistan and others 1998 SCMR 2679; Miss Hina Javed and others v. Government of N.W.F.P. and others 1998 SCMR 1469 and Maqbool Ahmed and another v. Military Accountant‑General and 2 others 1993 SCMR 119 ref.

(c) Educational institution‑‑‑

‑‑‑‑ Admission to Engineering University‑‑‑Holding of Entry Test‑‑‑Change in marking system‑‑‑Effect‑‑‑Candidates could not pass the Entry Test and objected to the change in marking system‑‑‑Validity‑‑‑Entire lot of the examinees were subjected to the same and identical marking system and no examinee was discriminated against‑‑‑Candidates failed to show that if the marking system could have not been changed, they would hare passed the test‑‑‑Objection was not sustainable in circumstances.

PLD 1962 SC 35 ref.

A.K. Dogar for Petitioners.

Syed Sajjad Hussain Shah for Respondents.

Date of hearing: 17th August, 1999.

2000 C L C 547

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

LAHORE CHEMICAL AND PHARMACEUTICAL

WORKS LTD., LAHORE, PAKISTAN‑‑ ‑Appellant

versus

UNILEVER N.V., NETHERLAND ‑‑‑Respondent

First Appeal from Order No.291 of 1999, heard on 6th December, 1999

Specific Relief Act (I of 1577)

‑‑‑‑Ss. 54 & 55‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & O.XLIII, R.1(r)‑‑‑Suit for permanent and mandatory injunction‑‑‑Agreement whereunder appellant was allowed to manufacture and sell products of respondent, was subsequently terminated and notice of said termination was duly served upon the appellant‑‑‑Appellant, despite knowledge of termination of agreement, continued to sell products of respondent‑‑‑Respondent filed suit for permanent and mandatory injunction against appellant alongwith application for temporary injunction which was accepted by Trial Court‑‑­Validity‑‑‑Appellant, after termination of agreement, could neither manufacture products of respondent nor could make use of its trade mark‑‑­Respondent in circumstances had a prima facie case for grant of injunction‑‑­Appellant prima facie did not have any right to infringe trade make of respondent or make use of its insignia, in view of termination of agreement providing agency rights‑‑‑Refusal to grant injunction against appellant was bound to cause inconvenience and irreparable loss to respondent‑‑‑Injunction, in circumstances, was rightly granted by Trial Court in favour of respondent‑‑‑Appellant having failed to point out any legal infirmity in the order of Trial Court and discretion having been exercised by Court on sound judicial principles, no ground existed for interference in the said order.

Tektronix Incorporated v. M. Abdul Mannan PLD 1973 Kar. 14 and Cooper's Incorporated (now named Jockey International Inc.) v. Pakistan General Stores and another 1981 SCMR 1039 ref.

Syed Muhammad Zafar Babar for Appellant. Shaharyar Sheikh with Javed Safdar Tanwiri for Respondent.

Date of hearing: 16th December, 1999.

2000 C L C 552

[Lahore]

Before Sheikh Abdur Razzaq, J

FALAK SHER ASIF---- Petitioner

versus

GOVERNMENT OF PUNJAB through

District Collector, Sahiwal and others‑‑‑Respondents

Writ Petition No.3746 of 1999, decided on 30th April, 1999.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Matter in dispute had already been agitated before a Court of competent jurisdiction and petitioner was in possession of order of status quo and proceedings for violation of said order of status quo were pending in Trial Court‑‑­Constitutional petition filed by petitioner was not maintainable in circumstances.

Tariq Muhammad Iqbal for Petitioner.

2000 C L C 553

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD RASHID and 2 others‑‑‑Petitioners

versus

DEPUTY COMMISSIONER, PAKPATTAN SHARIF and 2 others‑‑‑Respondents

Writ Petition No.6705 of 1999, heard on 8th November, 1999.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 30‑‑‑Colony Manual, 1940, Vol.I, para.580‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Restoration of path in the land owned by petitioners‑‑‑Sanctioning of the path through the land of the petitioners was not established by Revenue Authorities‑‑‑Authorities passed order for restoration of path and correction of Khasra Girdawari and record of rights of the land of the petitioner, without perusal of Revenue Record‑‑­Validity‑‑‑Where petitioners were full owners of the property. Thorough fare could be sanctioned through their land by acquiring the land for such purpose after adopting all formalities under Land Acquisition Act, 1894‑‑‑Order of the Authority restoring such path was without lawful authority and of no legal effect as there was no sanctioned path existing through the land of the petitioners which could be restored.

Elam Din v. Muhammad Din PLD 1964 SC 842 and PLD 1971 BJ 38 ref.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 30‑‑‑Colony Manual, 1940, Vo1.I, paras.580, 581 & 583‑‑‑Sanctioning of path from the land of full owner‑‑‑Procedure‑‑‑After issuance of proprietary deed, the property comes out of the purview of Colony hierarchy, therefore, the Collector cannot sanction such path without the consent of the owner‑‑‑Collector for such purpose has to adopt other measures for instance acquisition of that land under Land Acquisition Act, 1894, payment of compensation to the landowner in cash or transfer of alternate land in his favour‑‑‑Path cannot be sanctioned without consent of the owner in circumstances.

Mian Fazal Rauf Joya for Petitioners. Sardar Muhammad Sarfraz Dogar for Respondent No.3

Date of hearing: 8th November, 1999,

2000 C L C 558

[Lahore]

Before Syed Zahid Hussain, J

TAYYAB KHAN‑‑‑Petitioner

versus

NADIA KHAN‑‑‑Respondent

Writ Petition No.780 of 1999, decided on 22nd April, 1999.

Muslim Family Laws Ordinance (VIll of 1961)‑‑‑

‑‑‑‑S: 9‑‑‑West Pakistan Family Courts Act (XXXV of 1964). S.5 &

Sehed.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Maintenance‑‑‑Determination of amount‑‑‑Amount of past and future maintenance as fixed by Family Court was modified by Appellate Court below keeping in view financial position of the husband‑‑‑Quantum of maintenance as fixed by Appellate Court, keeping in view financial and other circumstances of the petitioner being fair, proper, just and reasonable, and based on evidence on record, could not be interfered with by High Court in its Constitutional jurisdiction.

Syed Murta7a Ali Zaidi for Petitioner Mian Abbas Ahmad for Respondents Nos. l to 3.

Date of hearing: 22nd April, 1999

2000 C L C 560

[Lahore]

Before Muhammad Akhtar Shabbir, J

ASHIQ HUSSAIN ‑‑‑Petitioner

versus

KHUDA BAKHSH and another‑‑‑Respondents

Civil Revision No.434 of 1981, heard on, 4th October, 1999.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 30‑‑‑Pre‑emption suit‑‑‑Limitation‑‑‑Suit property was transferred vide mutation‑‑‑Time of limitation would start running from the date of attestation of mutation.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 21 & 30‑‑‑Civil Procedure Code (V of 1908), S.149‑‑‑Pre‑emption suit‑‑‑Suit land was transferred through mutation and suit was filed within one year from the date of attestation of mutation‑‑‑Deficiency in court‑fee was made up under the order of the Trial Court‑‑‑Suit was dismissed by Trial Court, while the same was decreed by the Lower Appellate Court‑‑­Validity‑‑‑After the deficiency of the court‑fee had been made up under the order of the Court, plaint became valid and unless the Court formally reviewed or revised its earlier order, the same would not be reversed through any finding given by Court on issues framed in a general way‑‑‑No illegality in the judgment and decrees passed by the Lower Appellate Court existed and the same was unexceptionable.

Walayat Khatoon v. Khalil Khan and another PLD 1979 SC 821; Maulvi Abdul Aziz Khan v. Nawab Sarfraz Ali and others 1985 SCMR 98; Muhammad Siddiq and 2 others v. Dr. Muhammad Ibrahim PLD 1981 Lah. 97 and Siddiq Khan v. Abdus Shakoor PLD 1984 SC 289 ref.

Hameed A. Zahoor Malik for Petitioner. Malik Abdus Sattar Wajdani for Respondents.

Date of hearing: 4th October, 1999.

2000 C L C 566

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD IRSHAD‑‑‑Petitioner

versus

SMALL BUSINESS FINANCE CORPORATION

through Manager, S.B.F.C., Sahiwal

and another‑‑‑Respondents

Writ Petition No.3943 of 1999, decided on 6th May, 1999.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Re‑payment of loan‑‑‑Constitutional petition‑‑‑Petitioner had sought issuance of direction to respondent‑Corporation not to recover amount due from him by using coerci‑e means‑‑‑Amount obtained by petitioner from respondent‑Corporation was to be paid back in instalments ‑‑‑Respondent ­Corporation had directed petitioner that installment having become due he should deposit the amount within time specified in the notice‑‑‑Petitioner having failed to comply with notice issued to him, respondent‑Corporation was entitled to recover amount of instalments due in accordance with law.

Tariq Muhammad lqbal for Petitioner.

2000 C L C 567

[Lahore]

Before Muhammad Akhtar Shabbir, J

AHMAD YAR‑‑‑Petitioner

versus

MUHAMMAD YOUSAF and 9 others‑‑‑Respondents

Civil Revision No.32/D of 1‑999, decided on 22nd October, 1999.

(a) Civil Procedure Code (V of 1908)‑‑

‑‑‑‑S. 115‑‑‑Revision‑‑‑Re‑appraisal of evidence‑‑‑Scope‑‑‑Even if High Court can take a different view, the evidence cannot be re‑appraised at the stage of revision before High Court.

(b) Muslim Family Laws Ordinance (V111 of 1961)‑‑

‑‑‑‑S. 4‑‑‑Retrospective effect of provision of S.4, Muslim Family Laws Ordinance, 1961‑‑‑Scope‑‑‑Provisions of S.4 were not applicable retrospectively but were effective from the day when Muslim Family Laws Ordinance, 1961 was promulgated.

(c) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 4‑‑‑Repugnancy to Injunctions of Islam‑‑‑Position at present.

(d) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 4‑‑‑Inheritance to the children of a predeceased daughter‑‑‑Such inheritance was assailed in a civil suit‑‑‑Both the Courts below concurrently dismissed the suit as well as appeal respectively‑‑‑Contention was that provisions of S.4, Muslim Family Laws Ordinance, 1961 were contrary to the Injunctions of Islam and the legal heirs of predeceased daughter were not entitled to inherit share from the property of the predecessor of the parties‑‑­Validity‑‑‑Provisions of S.4, Muslim Family Laws Ordinance, 1961 still held the field and the legal heirs were entitled to inherit the shares‑‑‑Both the Courts below had validly passed the judgments and decrees and committed no illegality calling for interference.

Nazir Ahmad and others v. Abdullah and others 1997 SCMR 281; Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120; Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051; Muhammad Hassan Musa and others v. Sardar Muhammad Javed Musa 1995 CLC I; Gul Muhammad v. Nemat Bibi and 8 others PLD 1988 Lah. 186 and Nizam Din and 6 others v. Faiz Muhammad and 14 others PLD 1998 Lah. 321 ref.

Syed Asif Raza Gilani for Petitioner.

2000 C L C 572

[Lahore]

Before Ghulam Mahmood Qureshi, J ''

Mst. HANIFAN BIBI‑‑‑Petitioner

versus

LAL DIN through Legal Heirs

and another‑‑‑Respondents

Civil Revisions Nos. 1294‑D of 1996 and 132‑D of 1997, decided on 12th March, 1998.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), S.144‑‑‑Suit for specific performance of agreement of sale‑‑‑Ex parte decree, setting aside of‑‑‑Right of subsequent purchaser‑‑‑Suit for specific performance of agreement of sale filed by predecessor‑in‑interest of respondent in respect of land against owner thereof, was decreed ex parse‑‑‑Decree‑holder after execution of registered sale‑deed on basis of ex pr,.‑to decree, sold land in dispute to petitioner‑‑‑Ex parse decree passed in favour of predecessor‑in‑interest of respondents subsequently was set aside by Appellate. Court and case was remitted to Trial ‑ Court‑‑‑Application for transposition of petitioner as plaintiff was finally dismissed and appeal against said order was also dismissed by Appellate Court‑‑‑Ex parte decree passed in , favour of predecessor‑in‑interest of respondent in suit for specific performance of agreement on basis of which he became owner of land in dispute and he transferred same to petitioner, having been set aside, he was no more owner of said land‑‑‑Petitioner who after execution of ex parte decree had purchased said land could not claim better title after setting aside said ex parte decree than that of predecessor‑in‑interest of respondents.

1970 SCMR 639; PLD 1980 Kar. 296; 1992 SCMR 485; PLD 1992 SC 590; PLD1961 Dacca 263; PLD 1968 Kar. 345; PLD 1980 Kar.296 and PLD 1971 Lah. 359 ref.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 55‑‑‑Agreement to sell‑‑‑Right of vendee ‑‑‑Agreement to sell would not create any right in favour of person claiming such right under the agreement until and unless it was specifically got enforced through decree of the Court and sale‑deed was executed.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Petitioner having failed to point out any infirmity or illegality in concurrent judgments and decree of Courts below, same could not be interfered with by High Court in revisional jurisdiction.

Ch. Noor Elahi for Petitioner.

Nazir Ahmad Siddique for Respondents.

Date of hearing: 19th February, 1998.

2000 C L C 575

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD NAWAZ‑‑‑Petitioner

versus

ALLAH BAKHSH through Legal Heirs and 3 others‑‑‑Respondents

Civil Revision No.439 of 1986, heard on 14th December, 1999.

(a) Interpretation of statutes‑‑‑

‑‑‑‑Special provisions, to the extent of inconsistency, exclude the general provisions.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XX, R.14‑‑‑Decree in pre‑emption suit‑‑‑Mode of payment of pre­emption money by pre‑emptor to the vendee ‑‑‑Scope‑‑‑Such mode is distinguished from the payment of money by a judgment‑debtor to the decree‑holder‑‑‑Purchase money in pre‑emption suit to be paid into Court while other sums under the money and other decrees can be paid out of Court under certain conditions.

(c) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 17 & 21‑‑‑Civil Procedure Code (V of 1908), O.XX, R.14 & O.XXI, R.2‑‑‑Execution of pre‑emption decree‑‑‑Pre‑emption money, adjustment of out of Court‑‑‑Legality‑‑‑Trial Court decreed the pre‑emption suit between two rival pre‑emptors in the ratio of 7/8 and 1/8 shares of the suit property respectively ‑‑‑Pre‑emptor (petitioner having 7/8 share) instead of depositing the pre‑emption money in the Court, got such amount adjusted with the vendee out of the Court‑‑‑Other pre‑emptor (respondent having 1/8 share) applied to the executing Courtfor total decree in his favour as the pre‑emptor failedto deposit the money in the Court‑‑‑Executing Court allowed application of the pre‑emptor and total decree was passed in his favour‑‑­Lower Appellate Court dismissed appeal filed by pre‑emptor and order of the Executing Court was maintained‑‑‑Validity‑‑‑Provisions of O.XXI, Rr.l & 2, C.P.C. depended upon a vital pre‑condition that the payment out of Court was to be made to the decree‑holder and not to the judgment‑debtor, while in the pre‑emption decree same was reversed ‑‑‑Pre‑emption amount was payable by the decree‑holder to the judgment‑debtor‑‑‑Provisions of O.XXI, Rr.l & 2, C.P.C. were not applicable to the payment of purchase money under the decrees in pre‑emption suits.

Ghulam Mohyuddin v. Muhammad Bakhsh PLD 1979 Lah. 766; Dullah through Legal Heirs and another v. Muhammad Hanif PLD 1994 Lah. 200 and Siraj Din v. Sardar Khan 1993 SCMR 745 ref.

Khalid Alvi for Petitioner. Abdus Sattar Goraya for Respondents.

Date of hearing: 14th December, 1999.

2000 C L C 579

[Lahore]

Before Raja Muhammad Khurshid, J

IRSHAD HUSSAIN BOKHARI‑‑‑Petitioner

versus

Mst. ATHAR BIBI and others‑‑‑Respondents

Civil Revision No.2867 of 1994, decided on 15th July, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Suit four specific performance of agreement of sale‑‑­Plaintiff/petitioner filed suit for possession through specific performance of agreement of sale on the ground that

originalowner of land in dispute who was predecessor‑in‑interest of defendants/respondents, had entered into an agreement of sale of land with plaintiff through his attorney and that vendor had received earnest money‑‑Suit was decreed by Trial Court holding that original owner of the land had validly entered into agreement of sale with plaintiff through his attorney and that vendor had received amount of consideration‑‑‑Appellate Court below set aside judgment and decree of Trial Court holding that predecessor‑in‑interest of respondent who sold land through his attorney was not owner of land in dispute and that he had never executed any power of attorney in favour of attorney through whom he had allegedly sold land‑‑‑Evidence on record had fully proved that predecessor ­in‑interest of respondents was owner of land in dispute and that he had entered into valid agreement of sale with plaintiff/petitioner through his attorney who was duly and validly appointed through registered general power of attorney which was not denied by witnesses of respondents also‑‑­Judgment of Appellate Court below baredon misreading and misconstruction of oral and documentary evidence on record, was not sustainable in the eyes of law‑‑‑High Court set aside judgment and decree passed by Appellate Court below and upheld judgment and decree of Trial Court.

Arshad Mahmood for Petitioner. Muhammad Rashid Awan Malik for Respondents.

Date of hearing: 15th July, 1999.

2000 C L C 585

[Lahore]

Before Muhammad Akhtar Shabbir, J

RUKHSANA KAUSAR and another‑‑‑Petitioners

versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, KHANEWAL and 11 others‑‑‑Respondents

Writ Petition No.6502 of 1999, decided on 10th December, 1999.

(a) Succession Act (XXXIX of 1925)‑‑

‑‑‑‑Ss. 37, 373 & 384‑‑‑Succession Certificate, issuance of ‑‑‑Procedure‑‑­Only a summary procedure is provided for issuance of Succession Certificate under S.373 of Succession Act, 1925‑‑‑If any person wants a detailed determination of rights, remedy lies in shape of suit filed under S.37, Succession Act, 192.5‑‑‑Where a person is dissatisfied or aggrieved by issuance of a Succession Certificate, and appeal under S.384, Succession Act, 1925 lies.

(b) Succession Act (XXXIX of 1925)‑‑‑

‑‑‑‑S. 388(2), proviso‑‑‑Appeal against order of Civil Judge‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑‑Where a Succession Certificate was issued by a Civil Court inferior to the Court of District Judge, then by virtue of proviso to S.388 (2), Succession Act, 1925, appeal was maintainable before the District Court and not before the High Court.

Bisesar Sheudayal Soonar v. Jairam Bariyar Soonar AIR 1940 Nag. 162 'ref.

(c) Succession Act (XXXIX of 1925)‑‑‑

‑‑‑‑Ss. 373 & 383‑‑‑Civil Procedure Code (V of 1908), Ss. 114 & 115‑‑­Powers of review and revision, exercise of‑‑‑Review petition lies to the Court which has passed the order whereas revision petition under S.115, C.P.C. lies to the next higher Court‑‑‑No provision of revision petition before the District Judge has been provided under Succession Act, 1925.

(d) Succession Act (XXXIX of 1925)‑‑‑

‑‑‑‑Ss. 373 & 383‑‑‑Civil Procedure Code (V of 1908), S.114‑‑‑Succession Certificate, revocation of‑‑‑Powers of Court to review its order‑‑­Applicability of Civil Procedure Code, 1908‑‑‑Scope‑‑‑Special procedure having been provided for grant of Succession Certificate, Code of Civil Procedure was not applicable to the cases under Succession Act, 1925‑‑­Succession Certificate issued by Court could only be revoked on any of the grounds provided under 5.383, Succession Act, 1925 and any such order was not liable to review.

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

‑‑‑‑Ss. 114, 115 & O.XLVII, R.1‑‑‑Review‑‑‑Revision‑‑‑Maintainability‑‑­Pre‑conditions‑‑‑Where review application was rejected, a revision was competent when order to be revised was without jurisdiction or the Court had failed to exercise jurisdiction vested in it or had acted in exercise of jurisdiction illegally or with material irregularity.

(f) Succession Act (XXXIX of 1925)‑‑‑

‑‑‑‑Ss. 373 & 383‑‑‑Civil Procedure Code (V of 1908), Ss.114 & 115‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Issuance of Succession Certificate‑‑‑Respondents being dissatisfied with certificate, instead of filing an appeal, moved a review application to the Trial Court which was dismissed‑‑‑Lower Appellate Court accepted revision filed by respondents and allowed review of the order of the Trial Court ‑‑‑Validity‑‑­Order of issuance of Succession Certificate was not review able and the certificate could only be revoked on any of the grounds mentioned in S.383, Succession Act, 1925‑‑‑Respondents had adopted a wrong procedure for which there was no provision in the Succession Act, 1925‑‑‑Judgment of the Lower Appellate Court was without lawful authority and of no legal effect.

Fateh Muhammad v. Mst. Irshad Afzal 1999 MLD 1481; Allah Nawaz Khan and 2 others v. Farida Fatimah Khanam 1999 MLD 2738; Federal Government of Pakistan v. Public‑at‑Large PLD 1991 SC 731; Muhammad Mumtaz v. Umra Bevi 1999 CLC 806 and Syed Arif Shah v. Abdul Karim PLD 1986 Kar. 189 ref.

Muhammad Yunus Sheikh for Petitioner.

Abdul Majeed Jahanian for Respondents Nos. 3 to 11.

Date of hearing: 6th October, 1999.

2000 C L C 593

[Lahore]

Before Syed Jamshed Ali, J

FAZAL MUHAMMAD ‑‑‑ Petitioner

versus

MUHAMMAD ASHIQ KHAN and another‑‑‑Respondents

Civil Revision No.793 of 1989, decided on 16th April, 1999.

Civil Procedure Code (V of 1908)‑

‑‑‑‑5. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Courts below on basis of evidence on record had concurrently found that petitioner was not son of deceased to claim share from property left by the deceased‑‑‑Concurrent findings of fact based on record, could not be interfered with by High Court in its revisional jurisdiction.

Muhammad Akhtar Khan for Petitioner.

Tariq Iqbal Ch. for Respondents.

Date of hearing: 8th April, 1999.

2000CLC615

[Lahore]

Before Muhammad Akhtar Shabhir, J

MUHAMMAD AYYUB‑‑‑Appellant

versus

FAQIR MUHAMMAD and 4 others‑‑‑Respondents

Civil Revision No. 184‑D of 1999, decided on 5th October, 1999.

Punjab Pre‑emption Act (IX of 1991)‑--

‑‑‑‑S. 30‑‑‑Pre‑emption suit‑‑‑Limitation‑‑‑Sale was made vide mutation‑‑­Suit was filed about five months after the date of attestation of mutation‑‑­Contention of pre‑emptor was that period of limitation would start from the date of knowledge of the sale to the pre‑emptor ‑‑‑Validity‑‑‑Time in such case would start running from the date of attestation of the mutation‑‑‑Suit of pre‑emptor being time‑barred, there was no illegality in orders of both the Courts below which were unexceptionable.

Tariq Zulfiqar Ahmed Chaudhry, Advocate.

2000 C L C 617

[Lahore]

Before Ali Nawaz Chowhan, J

GHULAM HAIDER and 2 others‑‑‑Appellants

versus

FAIZ MUHAMMAD and another‑‑‑Respondents

Regular Second Appeal No.26 of 1981; heard on 28th September, 1999.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 15‑‑‑Partial pre‑emption ‑‑‑Scope‑‑‑Pre‑emption suit disclosed that pre‑emptors had themselves kept their entitlement to the extent of two "Khatas" and that act of the pre‑emptors gave a presumption that they had feeling that vendees had a better claim as compared to them in rest of the Khata numbers‑‑‑Trial Court decreed the suit to the extent of full transaction whereas Appellate Court modified the‑ judgment to the extent of two "Khatas"‑‑‑Validity‑‑‑Judgment and decree passed by Appellate Court suffered from no illegality nor the same called for any interference by High Court‑‑‑Suit, as such was not a suit for partial pre‑emption.

Mailk Hussain and others v. Lala Raam Chand and others PLD 1970 SC 299 ref.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 4‑‑‑Partial pre‑emption ‑‑‑Scope‑‑‑Partial pre‑emption could only be permitted if the same,was as of necessity and not because the pre‑emptor wanted so.

Mushtaq Ahmad Hashmi for Appellants.

Ihsan Ullah for Respondents.

Date of hearing: 28th September, 1999.

2000 C L C 623

[Lahore]

Before Syed Jamshed Ali, J

MANZOOR HUSSAIN and 3 others‑‑‑Petitioners

versus

MUHAMMAD SIDDIQUE‑‑‑Respondent

Civil Revision No.3996 of 1994, heard on 3rd November, 1999.

(a) Muhammadan Law‑‑‑

‑‑‑‑Gift‑‑‑Burden of proof‑‑‑Initial burden to prove gift was on the donees that the gift was made in their favour‑‑‑Oral as well as documentary evidence in shape of mutation having been produced by the donees, burden was discharged‑‑‑No evidence in rebuttal was produced except an allegation in the plaint that the mutation was an outcome of collusion of the Revenue Officials with the donees‑‑‑Basis of findings that the mutation was not attested in the village or that the Lambardar of that Village did not attest the mutation, was not sufficient to hold that the gift made in favour of the donees was the result of collusion of the Revenue Officials with the donees‑‑.‑Gift of land in favour of the donees was proved in circumstances

(b) Words and phrases‑‑‑

‑‑‑‑"Collusion"‑‑‑Definition‑‑‑Element of fraud is inbuilt in the expression "collusion". Black's Law Dictionary, Fifth Edn., Wharton's Law Lexicon, 14th Edn. and Zafarullah and 3 others v. Civil Judge, Hafizabad and 3 others PLD 1984 Lah. 396 ref.

(c) Qanun‑e‑Shahadat (1U of 1984)‑‑‑

‑‑‑‑Art. 129‑‑‑Entries of "Jamabandi"‑‑‑Presumption of correctness is attached to such entries.

(d) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑Ss. 41 & 52‑‑‑Jamabandi, value of‑‑‑Rebuttal of entries of such "Jamabandi"‑‑‑Proof‑‑‑"Jamabandi" being a title document, a very strong evidence was required to displace the title.

(e) Muhammadan Law‑‑‑

‑‑‑‑Gift‑‑‑Subsequent delivery of possession‑‑‑Effect‑‑‑Even subsequent delivery of possession cures the defect of initial non‑delivery.

(f) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. I, R.10‑‑‑Non‑joinder of necessary parties‑‑‑Effect‑‑‑Plaintiff claimed to be the only surviving legal heir of the deceased while in fact the deceased was survived by a widow and a sister which was concealed by the plaintiff‑‑­Effect‑‑‑Both the widow and the sister being necessary parties, suit by plaintiff, was bad, for non‑joinder of necessary parties which was liable to be 'dismissed on that account.

(g) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Declaration‑‑‑Discretionary relief‑‑‑Setting up false case and raising false pleas in case‑‑‑Effect‑‑‑Grant or refusal of declaration was essentially discretionary‑‑‑‑False case having been put up by the plaintiff he forfeited his right to an equitable relief.

Habib Khan v. Mst. Taj Bibi and others 1973 SCMR 228 and Asa Ram and another v. Sukha Singh AIR 1921 Lah. 336 ref.

Mian Javed lqbal Arain for Petitioner.

Syed Kaleem Ahmad Khursheed for Respondent.

Date of hearing: 3rd November, 1999

2000 C L C 628

[Lahore]

Before Syed Najum‑ul‑Hassan Kazmi, J

Messrs PHARMAX PAKISTAN (PVT.) LTD. and another‑‑‑Petitioners

versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Health and

4 others‑‑‑Respondents

Writ Petition No.2122 of 1996, heard on 25th October, 1999.

(a) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Maintainbility‑‑‑Contractual obligation‑‑‑Dispute between parties was with regard to terms and conditions of contract‑‑‑Arbitration clause was provided in the agreement of contract and without resolving dispute through Arbitrator, Constitutional petition was filed‑‑Validity‑‑‑Factual investigation was required to determine dispute with regard to terms and conditions of the contract‑‑‑Without investigation and evidence, dispute between the parties could not be decided in exercise of summary jurisdiction‑‑‑Where the contract was a private contract and not a statutory agreement, its enforcement ordinarily could not be secured by filing a Constitutional petition‑‑‑Petition being not maintainable was dismissed accordingly. AIR 1996 SC 3515 and Muhammad Azam Sohail and others v. Government of Pakistan and others 1998 SCMR 1549 ref.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 16‑‑‑Arbitration‑‑‑Once a party has agreed to resolve the controversy through arbitration, Arbitrator shall be fully competent to render decision relating to the rights flowing from the contract by attending to all the claims/objections of the respective parties‑‑‑Where dispute was of factual nature, the same could be resolved through the agreed forum. [p. 633] B

Ch. Aitzaz Ahsan for Petitioner.

Kh. Saeed‑uz‑Zafar, Dy. A‑G. for Respondents.

Dates of hearing: 22nd and 25th October, 1999.

2000 C L C 638

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi

and Mian Saqib Nisar, JJ

MEHDI KHAN and 2 others‑‑‑Appellants

versus

BOARD OF REVENUE, PUNJAB, LAHORE and 25 others‑‑‑Respondents

Intra‑Court Appeal No.47 of 1999 and Writ Petition No.20370 of 1996, heard on 4th November, 1999.

(a) Law Reforms Ordinance (XII of 1972)‑‑‑

‑‑‑‑S. 3(2), proviso ‑‑‑Constitiution of Pakistan (1973), Art. 199‑‑‑Intra‑Court appeal‑‑‑Maintainability‑‑‑Scope‑‑‑Where order under appeal was passed on a petition under Art. 199 of the Constitution arising out of proceedings under a statute providing for the remedy of appeal, revision or review, proviso to S.3(2) of Law Reforms Ordinance, 1972, barred the maintainability of Intra­Court appeal. Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre‑1, Lahore PLD 1985 SC 107 ref.

(b) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)‑‑‑

‑‑‑‑Ss. 10 & 15‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court appeal‑‑‑Maintainability‑‑‑Proceedings were initiated under S.10, West Pakistan Redemption and Restitution of Mortgaged Land Act, 1964 and an order was passed by the Collector‑‑‑Such order of the Collector was appealable and a remedy of revision was also available under S.15, West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964‑‑‑Order of the Collector and that of Board of Revenue passed in revision was assailed in Constitutional petition and the same was dismissed ‑‑‑Intra‑Court appeal‑‑­Maintainability‑‑‑Original order, subject‑matter of challenge in Intra‑Court‑appeal, having crossed the stage of appeal, revision and review, such intra‑Court appeal was barred by proviso to S.3(2) of Law Reforms Ordinance, 1972.

Malik Raees Khan v. Abdul Mannan and others 1992 SCMR 1822 ref.

(c) Void order‑‑‑

‑‑‑‑Void order being ‑a type of. illegal order, entailed consequence if not challenged or set aside within limitation‑‑‑Such orders could not be ignored simply because same were alleged to be void.

Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 and S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367 ref.

M.A.K. Dogar for Appellant.

Ch. Muhammad Ashraf Walah for Respondents.

Date of hearing: 4th November, 1999.

2000 C L C 643

[Lahore]

Before dyed Jamshed Ali, J, ABDUL MAJEED through Legal Heirs‑‑‑Petitioner

versus

GHULAM SHABBIR and 4 others‑‑‑Respondents

Civl Revision No. 1752‑D of 1986, decided on 4th November, 1999

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12, Explanation‑‑‑Specific performance of contract‑‑‑Compensation for breach of contact in money‑‑‑Validity‑‑‑Unless and until the contrary was proved, Trial Court would presume that breach of contract to transfer immovable property could not be adequately relieved by compensation in money.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Specific performance of contract‑‑‑Grant or refusal of such performance‑‑‑Scope‑‑‑Grant or refusal of specific performance of a contract is discretionary but such discretion must be exercised on sound judicial principles.

Mrs. Mussarat Shaukat Ali v. Mrs. Safia.Khatoon and others 1994

SCMR 2189 ref.

(e) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 12 & 20‑‑‑Refusal to grant specific performance of agreement‑‑­Agreement providing penalty for breach of the agreement‑‑‑Effect‑‑‑Specific performance of the agreement could not be refused on the basis of any such provision in the agreement.

(d) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Specific performance of agreement to sell ‑‑‑Co‑sharers not party to such agreement‑‑‑Trial Court decreed the suit for the performance of the contract to the extent of such co‑sharers also and the Lower Appellate Court upheld the judgment of the Trial Court‑‑‑Validity‑‑‑Where some of the co­-sharers were not party to the agreement, decree for specific performance of agreement could not be granted to the extent of their share‑‑‑Both the Courts below had acted illegally in exercising discretion against the petitioners‑‑­Judgments and decrees of both the Courts below were set aside in circumstances.

Abdul Karim v. Muhammad Shati and another 1973 SCMR 225; Haji Abdul Rehman and 3 others v. Noor Ahmad and 3 others PLD 1974 BJ 25; Muhammad Safdar Ansari and another v. Abdul Majecd PLD 1988 Lah. 216; Muhammad Shaft v. Muhammad Sarwar and others 1997 CLC 1231 arid Shah Muhammad v. Inayat Ullah and others PLD 1953 Lah. 87 ref.

Qamar Riaz Hussain for Petitioner.

Sahibzada Anwar Hamid for Respondent No.7.

Date of hearing: 21st October, 1999.

2000 C L C 654

[Lahore]

Before Malik Muhammad Qayyum and Ghulam Mahmood Qureshi. JJ

AZRA PARVEEN and 2 others‑‑‑Petitioners

versus

ADDITIONAL DEPUTY COMMISSIONER

(GENERAL)/DEPUTY LAND COMMISSIONER, MULTAN and another‑‑‑Respondents

Writ Petition No.2215 of 1992, decided on 10th November, 1999.

Land Reforms Act (11 of 1977)‑‑‑

‑‑‑S. 7(5)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Determining of holdings and resuming of excess land‑‑‑Issuance of notice under S.7(5), Land Reforms Act, 1977. whether a decisive step by the Authorities‑‑‑Such notice was issued to the petitioner long before 23‑3‑1990, the date of enforcement of judgment of Supreme Court wherein many provisions of Land Reforms Act, 1977, were declared against the Injunctions of Islam‑‑‑Effect‑‑‑Proceedings were pending against the petitioner on 23‑3‑1990, and a decisive step by issuance of notice under S.7(5), Land Reforms Act, 1977 had already been taken‑‑‑Case of the petitioner was not hit by the law declared by Supreme Court in Qazalbash Waqf's case PLD 1990 SC 99‑‑‑Authority was justified in dismissing the application of the petitioner objecting to the continuance of the proceedings‑‑‑Constitutional petition being without force was dismissed accordingly. Qazalbash Waqf and others v. Chief Land Commissioner. Punjab. Lahore and others PLD 1990 SC 99 ref.

Ch. Khurshid Ahmed for Petitioners. Ntmo for Respondents.

Date of hearing: Ist November, 1999.

2000 C L C 661

[Lahore]

Before Ihsan‑ul‑Haq Chaudhry, J

Messrs SANDAL DYE STUFF INDUSTRIES LTD. ‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Finance, Pakistan Secretariat, Islamabad and 5 others‑‑‑Respondents

Writ Petition No. 12025 of 1999, decided on 6th August, 1999.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Practice and procedure‑‑‑Non‑filing of appeals in earlier petitions on the same subject‑matter‑‑‑Effect‑‑‑Earlier petitions on the same subject‑matter were decided by High Court alongwith many other similar petitions‑‑‑Detailed judgment was given in one petition and rest of the other petitions were simply disposed of in the terms mentioned in that judgment‑‑‑Respondent/department filed appeal before Supreme Court against that judgment of High Court and the same was set aside by Supreme Court‑‑‑Effect‑.‑‑Where main judgment was challenged and was set aside by the Supreme Court, non‑filing of appeals in the earlier petitions was of no legal consequence.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 189 & 199‑‑‑Decision of Supreme Court binding on other Courts‑‑­Judgment of Supreme Court being binding on other Courts in view of Art. 189 of the Constitution, High Court could not re‑adjudicate upon issues already decided by Supreme Court.

(c) Judgment‑‑‑

‑‑‑‑"Judgment in personam" and "judgment in rem"‑‑‑Judgment declaring only legal position‑‑‑Nature‑‑‑Such judgment was not a "judgment in personam" rather it was in the nature of "judgment in rem".

(d) Judgment‑

‑‑‑‑‑ Judgment in personam"‑‑‑Meaning‑‑‑Judgment in personam is a declaration to one's rights personal and to property which would cover contract, title, property and marriage.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 189 & 199‑‑‑Decision of Supreme Court binding on other Courts‑‑‑ Judgment of High Court reversed by the Supreme Court‑‑‑Effect‑‑‑Where judgment of High Court was reversed by Supreme Court, there was nothing left in that judgment of High Court'to be followed.

(f) Words and phrases‑‑‑

‑‑‑‑"Misconstruction"‑‑‑Meaning.

Chambers' 21st Century Dictionary ref.

(g) Interpretation of statutes‑‑‑

‑‑‑‑Intention of Legislature was to be seen and given effect.

Crawford's Interpretation of Laws and Maxwell on Interpretation of Statutes ref.

(h) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 32(2)‑‑‑Sea Customs Act (VIII of 1878), S.39‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Untrue statement or error‑‑‑Application of a particular S.R.O. was sought without giving details of letter of credit and Bill of Entry etc. ‑‑‑Constitutional petition was filed without availing remedy of appeal before the department‑‑­Petitioner, who was aggrieved of an order of the department. had not availed remedy of three appeals in succession as Appellate Court was fully competent to adjudicate any legal point arising in the process of deciding the appeal‑‑‑Effect‑‑‑Constitutional petition was not competent in circumstances.

Al‑Ahram Builders (Pvt.) Ltd. v. Income‑Tax Appellate Tribunal 1993 SCMR 29 and I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division. Islamabad and others 1991 SCMR 1041 rel.

Collector of Customs anc[ others v. Ravi Spinning Ltd. and others 1999 SCMR 412; Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Muhammad Yusuf v. The Chief Settlement Commissioner and Rehabilitation Commissioner, Pakistan, Lahore and others PLD 1968 SC 101; Income‑tax Officer, Central Circle 11, Karachi and another v. Cement Agencies Ltd. PLD 1969 SC 322; Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63; Nainsingh v. Koonwarjee and others AIR 1970 SC 997; Haji Sultan Muhammad and another v. Muhammad Sadiq PLD 1973 SC 347; Mian Khalid Abdul Rauf v. Federation of Pakistan PLD 1987 SC 228 and Sakhi Muhammad and another v. Capital Development Authority, Islamabad PLD 1991 SC 777 ref.

(i) Customs Act (IV of 1969)‑‑‑

.‑‑‑S. 32(2)‑‑‑Constitution of Pakistan' (1973),."Art. 199‑‑‑Constitutional petition‑‑‑Untrue statement or error‑‑‑Non‑mentioning of a particular S.R.O. in the judgment‑‑‑Effect‑‑‑Where other S.R.Os. para materia had been discussed in other S.R.Os., rule would apply to the one not discussed in the judgment.

(j) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Non‑mentioning of earlier Constitutional petition in the fresh petition‑‑‑Effect‑‑‑Petitioner, in order to obtain injunction suppressed the fact of earlier petition in the certificate and gave serial number of another petition to achieve the desired object‑‑­Petitioner, held, committed a grave misconduct and both the petitions

Irfan Qadir for Petitioner. A. Karim Malik for Respondents.

Dates of hearing:. 15th, 22nd, 26th and 27th July, 1999.

2000 C L C 676

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD AZIM and 3 others‑‑‑Plaintiffs

versus

MUNAWAR HUSSAIN ‑‑‑Defendant

Regular Second Appeal No.9 of 1999, decided on 28th September, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal‑‑­Concurrent findings of facts by both the Courts below‑‑‑Appellant/plaintiff filed a suit for specific performance of an agreement to sell‑‑‑Such suit was dismissed by Trial Court and decision was upheld by Lower Appellate Court‑‑‑Validity‑‑‑Both the Courts below had fully appreciated the evidence and had come to a concurrent finding on fact that the agreement to sell was a forged document‑‑‑No misreading or non‑reading of evidence was found ­Appreciation of evidence by both the Courts below was also not based on any material irregularity‑‑‑Second appeal being without merit, was dismissed accordingly.

Mian Muhammad Jamal for Appellants. Mian Arshad Latif for Respondent.

2000 C L C 685

[Lahore]

Before Karamat Nazir Bhandari, J

Mst. TAJ BEGUM KHAN through

Legal Heirs‑‑‑Petitioner

versus

THE ADDITIONAL SETTLEMENT COMMISSIONER, LAHORE and 17 others‑‑‑Respondents

Writ Petition No. 1582/R of 1976, decided on 29th October, 1999.

(a) Evacuee Property and Di6laced Persons Laws (Repeal) Ordinance (XV of 1974)‑‑‑

‑‑‑‑S. 2‑‑‑Repeal of Evacuee and Settlement laws‑‑‑Effect‑‑‑All Evacuee and Settlement laws stood repealed from 1‑7‑1974 and only those cases were to be dealt with, which were pending at the time of repeal of said laws, or the cases, which had been remanded by. High Courts and Supreme Court‑‑‑Such cases were to be dealt with by a Notified Officer in accordance with the law which was repealed. [p. 688] A

(b) Settlement Scheme No.I‑‑‑

‑‑‑‑Para. 17‑‑‑Provision of para.17 of Settlement Scheme No.I required that pending decision of allotment of property, transfer of such property was to be postponed.

(c) Appeal‑‑‑

‑‑‑‑General‑‑‑Where appeal was pending and not disposed of, opinion of another officer on executive side, that such appeal was or was not disposed of was immaterial.

(d) Evacuee Property and Displaced Persons Laws (Repeal) Ordinance (XV of 1974)‑‑‑ '

‑‑‑‑S. 2‑‑‑Decision of appeals after repeal of Evacuee and Settlement Laws‑‑­Validity‑‑‑Where appeal remained undisposed of till 1‑7‑1974, pending cases could be heard and decided by Notified Officer‑‑‑Such appeals were rightly decided by the Notified Officer after the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974.

(e) Displaced Persons (Compensation and Rehabilitation) Act (XXVIIQ of 1958)‑‑‑

‑‑‑‑S. 20(2) [as amended]‑‑‑Evacuee Property and Displaced Persons Laws

(Repeal) Ordinance (XV of 1974), S.2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Converting of appeal into revision‑‑­Decision of such revision by a Notified Officer after 1‑7‑1974‑‑‑Validity‑‑­Appeal of the petitioner was pending before Deputy Settlement Commissioner, on the date when Evacuee Property and Displaced, Persons Laws (Repeal) Ordinance, 1974 was promulgated, such appeal by virtue of S.20(2), Displaced Persons (Compensation and Rehabilitation) Act, 1958 [as amended] was converted into a revision and the same was to be decided by the Settlement Commissioner as a Notified Officer‑‑‑Notified Officer was fully competent to decide pending appeal converted into revision by force of law‑‑‑Where order of the Settlement Commissioner cured a manifest illegality committed by the Deputy Settlement Commissioner, High Court could refuse to exercise Constitutional jurisdiction against such order even if that order was illegal, or even suffered from absence of jurisdiction.

Sh. Barkat Ali v. M.S. Zaman, Additional Settlement Commissioner with Powers of Settlement and Rehabilitation Commissioner, Lahore and 2 others PLD 1968 Lah. 770; Sh. Rahmatullah v. The Deputy Settlement Commissioner, Centre "A", Karachi and others‑ PLD 1963 SC 633; Ilam‑ud‑Din v. The Chief Settlement and Rehabilitation Commissioner and 4 others PLD 1965 SC 615; Mushtaq Ahmad v. Settlement and Rehabilitation Commissioner, Lahore and 2 others 1981 SCMR 706 and Ronaq Ali's case PLD 1973 SC 236 ref.

(f) Aministration of justice‑‑

‑‑‑‑ Observations of High Court without hearing the affected parties‑‑­Whether binding in nature‑‑‑Any observation made or finding recorded or decision given, without hearing the affected parties, was not binding on such parties.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Laches‑‑‑Applicability‑‑­Constitutional petition was pending for 21 years‑‑‑Inequitable to uphold objection of laches after 21 years of the pendency of such petition.

Zahid Hussain Khan for Petitioners.

Ch. Inayat Ullah for Respondent No. 1..

Syed Zamir Hussain for Respondents Nos.2 to 9.

Raja Muhammad Anwar for Respondents Nos. 10 to 17.

M. Naseem Khan for Respondent No. 18.

Dates of hearing: 6th, 7th July; 14th to 16th, 20th, 21st, 27th to 30th September and 4th October, 1999.

2000 C L C 695

[Lahore]

Before Ali Nawaz Chowhan, J

FATEH MUHAMMAD ‑‑‑Petitioner

versus

JAMILA AKHTAR and another‑‑‑Respondents

Civil Revision No.3017‑D of 1996, heard on 28th June, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, R.27‑‑‑Additional evidence, production of‑‑‑Procedure‑‑‑Where parties wanted to adduce any additional evidence, provisions of O.XLI, R.27, C.P.C. were applicable.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, R. 24‑‑‑Decision of a case on the basis of evidence already available on record‑‑‑Scope‑‑‑Non‑framing of certain issues by Trial Court‑‑­Effect‑‑‑Where certain issues were not framed by the Trial Court and there was sufficient evidence on record, Appellate Court could decide the case under O.XLI, R.24, C.P.C. on the basis of evidence available on record.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, Rr.23, 24 & 25‑‑‑Remanding of case‑‑‑Jurisdiction of Appellate Court, exercise of‑‑‑Scope‑‑‑Conditions‑‑‑Requirements‑‑‑Where Appellate Court could itself dispose of a case, it should refrain from remanding the case unless the Court was of the opinion that evidence on record was not sufficient‑‑‑Use of provisions of O.XLI, R.23, C.P.C. could be made under exceptional circumstances requiring a determination of essential fact at the level of Courts below.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 151‑‑‑Remand‑‑‑Inherent residuary powers under S.151, C.P.C.‑‑­Remand can also be made in exercise of inherent residuary powers under S.151, C.P.C.‑‑‑Conditions.

Remand can also be made in exercise of inherent residuary powers (section 151, C. P. C.) under the following circumstances:‑‑

(a) where there has been erroneous exclusion of evidence;

(b) where the burden of proof has been placed on the wrong party;

(c) where the trial Court has misunderstood the case;

(d) where material issues have not been determined by the lower Court;

(e) where the suit was dismissed on the ground that it was brought in the name of the wrong plaintiff or wrong defendant;

(f) where the suit was found to be bad for multifariousness;

(g) where the decision is based on inadmissible evidence and such an evidence is reversed;

(h) that relevant facts have not been taken into consideration; , (i) 'without parties' consent to a remand;

(i) where amendment is allowed in the pleadings at an appellate stage;

(k) where plaint was wrongly rejected for non‑payment of court‑fee.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, R. 23‑‑‑Remand‑‑‑Mechanical remands‑‑‑Curative measures‑‑First Appellate Court, before remanding the case should have gone through the record for ascertaining whether it should decide the new issues on the basis of evidence.

For checking the tendency of mechanical remands, it has become essential to ask all the District Judges to keep an account of cases remanded by their Courts and the Courts of the Additional District Judges working under them and where they find mechanical working in this connection, they should report the matter to the M.I.T. for curative measures by High Court.

Before .remanding the case, the first Appellate Court should have gone through the record for ascertaining whether it could decide the new issues on the basis of evidence.

(f) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, Rr.23 & 24‑‑‑Remanding of case‑‑‑Non‑framing of certain issues by Trial Court‑‑‑Sufficient evidence was available on record to decide additional issues framed by Appellate Court but the case was remanded to the Trial Court‑‑‑Validity‑‑‑Additional issues should have been decided by the Appellate Court itself either on the basis of evidence already recorded or any additional evidence which any party might have sought to adduce being necessary‑‑‑Order of Appellate Court to the extent of remand was set aside and the Court was directed by High Court to decide those additional issues itself after allowing opportunity of hearing to both the parties.

PLD 1993 Pesh. 127 ref.

Malik Amjad Parveez for Petitioner. Syed H.M. Naqvi for Respondents.

Date of hearing: 28th June, 1999.

2000 C L C 706

[Lahore]

Before Malik Muhammad Qayyum, J

TRUST LEASING CORPORATION LTD.

through Chief Executive‑‑‑Appellant

versus

LAHORE MEDICAL IMAGING (PVT.) LTD.

through Chief Executive and 2 others‑‑‑Respondents, Civil Original Suit No. l of 1998, decided on 12th August, 1998.

Banking Companies (Recovery of Loans, Advances, Credits ands:

Finances) Act (XY of 1997)‑‑‑

S. 9(4)‑‑‑Civil Procedure Code (V of 1908), O.XXXVII, R.2‑‑‑Suit for recovery of Bank loan‑‑‑Leave to defend the suit, refusal of‑‑‑Effect‑‑‑Where the defendants had failed to obtain leave to defend the suit the averments contained in the plaint were deemed to be correct‑‑‑Claim of the plaintiff was fully supported by the documents on record‑‑‑Suit of plaintiff was decreed in ' circumstances.

Zahid Malik for Plaintiff.

Shahzad Rabbani for Defendants.

2000 C L C 708

(Lahore]

Before Malik Muhammad, J

NAYYAR INDUSTRIES (PVT.) LIMITED

through Chief Executive‑‑‑Petitioner

Versus

PUNJAB COOPERATIVE BOARD FOR LIQUIDATION

through Chairman and another‑‑‑Respondents

Cooperative Petition No. 193/C of 1999, decided on 22nd January, 2000.

Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)‑‑‑

‑‑‑‑S. 11‑‑‑Auction of property‑‑‑Refund of earnest money‑‑‑Petitioner was a successful bidder of an immovable property for which offers were invited by the Punjab Cooperative Board for liquidation‑‑‑Earnest money was deposited by the petitioner, neither the offer was accepted by the Liquidation Board nor the earnest money was refunded‑‑‑Contention raised by the Board was that petitioner failed to fulfil his commitment‑‑‑Validity‑‑‑No details of default committed by the petitioner were furnished to the Court‑‑‑Receipt of earnest money was not denied and there was nothing on record to show that offer made by petitioner had even been accepted and the same was communicated to the petitioner‑‑‑Board had no right to retain such money of the petitioner and as such was directed to refund the earnest money in circumstances.

Zahid Malik for Petitioner.

Kh. Muhammad Saeed for Respondents. "

2000CLC718

[Lahore]

Before Maulvi Anwar‑ul‑Haq, J

Malik AHMED YAR and another‑‑‑Appellants

versus

Mst. SALMA SHAFIQ and another‑‑‑Respondents

Regular Second Appeal No. 109 of 1989, heard on 26th October, 1999.

(a) Punjab Pre‑emotion Act (I of 1913)‑‑‑

‑‑‑‑S. 22(5)(a)‑‑‑Zar‑e‑Panjum (pre‑emotion money)., withdrawal of‑‑­Effect‑‑‑Where during the pendency of appeal, such money was withdrawn, appeal was not maintainable.

(b) Punjab Pre‑emotion Act (I of 1913)‑‑‑

‑‑‑‑S. 4‑‑‑Pre‑emotion suit‑‑‑Non‑existence of custom of pre‑emotion‑‑‑ Effect‑‑‑Suit house was situated in an area which was a new "Abadi" and the area was an agricultural land before the Independence and in the year 1913 custom of pre‑emotion did not prevail in that area‑‑‑Trial Court decreed the suit whereas Appellate Court dismissed suit on the ground that custom of pre‑emotion did not exist in that area‑‑‑Validity‑‑‑Findings of Trial Court on such issue were rightly reversed by Appellate Court ‑‑‑Vendees having successfully proved by producing evidence relied upon by Appellate Court, the Appellate Court could not be said to have misread the evidence.

Nazir Ahmad v. Fateh Muhammad 1994 SCMR 529 fol.

Mst. Maqsooda Begum v. Maulvi Abdul Haq and others PLD 1968 Lah. 897; Muhammad Din v. Sh. Faqir Muhammad PLD 1987 Lah. 205 and Dr. Iqbal Ahmad Chaudhry v. Muhammad Inayat through Legal Heirs and another 1993 SCMR 1477 ref.

Syed Mumtaz Ahmad Gillani for Appellants.

Mirza Manzoor Ahmad and Malik Sharif Ahinad for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 26th October, 1999.

2000 C L C 722

[Lahore]

Before Karamat Nazir Bhandari, J

Malik QASIM NAWAZ‑‑‑Petitioner

versus

DISTRICT MAGISTRATE, SARGODHA

and 3 others‑‑‑Respondents

Writ Petition No.23002 of 1999, decided on 12th January, 2000.

Motion Pictures Ordinance (XLIII of 1979)‑‑‑

‑‑‑‑S. 8‑‑‑Punjab Cinematograph Rules, 1984, R.80‑‑‑Penal Code (XLV of 1860), S.292/294‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Raid, seizure and sealing of cinema‑‑‑City Magistrate alongwith Naib‑Tehsildar and some police constables raided cinema where blue film was allegedly being exhibited‑‑‑ Said officials took film in possession, sealed cinema and registered case against licensee of cinema‑‑‑Action taken against petitioner was penal in nature which under provisions of S.8(5) of Motion Pictures Ordinance, 1979, could be taken by Police Officer not below the rank of Inspector duly authorised by District Magistrate‑‑‑City Magistrate who raided cinema and sealed same, was not a Police Officer and even if authority conferred on him by order of District Magistrate be deemed valid, he could not have seized film nor sealed the cinema ‑Action taken by Authorities against petitioner was declared illegal by High Court in exercise of its Constitutional jurisdiction.

Pir S.A. Rashid for Petitioner.

Muhammad Amin Lone, Asstt. A.‑G., Punjab for Respondents.

Date of hearing: 21st December, 1999.

2000 C L C 725

[Lahore]

Before Muhammad Akhtar Shabbir, J

BAHADUR ALI and 10 others‑‑‑Petitioners

versus

MUHAMMAD SHARIF and another‑‑Respondents

Civil Revision No.2355 of 1986, heard on 21st May, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 8‑‑‑Suit for possession‑‑‑Courts below on the basis of evidence on record had concurrently found that plaintiffs/petitioners had failed to prove by producing cogent evidence that they were owners of disputed land‑‑­Petitioner having failed to point out any misreading/non‑reading of evidence by Courts below or any illegality or jurisdictional defect in concurrent judgments and decrees of 'Courts below, High Court in exercise of its revisional jurisdiction could not reappraise evidence to come to a different conclusion‑‑‑Concurrent findings of Courts below on question of facts being quite tenable, called for no interference.

Shahid Hussain Qadri for Petitioners.

Taki Ahmad Khan for Respondents.

Date of hearing: 21st May, 1999.

2000 C L C 729

[Lahore]

Before Amir Alam Khan, J

NATIONAL, BANK OF PAKISTAN‑‑‑Petitioner

versus

FATIMA FOOD INDUSTRIES (PVT.) LTD. through

Chief Executive‑‑‑Respondent

Civil Miscellaneous Application No. 1299/1, of 1999 in Civil Original No.86 of 1997, decided on 11th April, 1999.

(a) Sale of Goods Act (III of 1930)‑‑‑

‑‑‑‑Ss. 16 & 16‑A‑‑‑Sale of goods‑‑‑Quality, condition or fitness of goods‑‑­Goods were sold on "as is where is" basis‑‑‑Effect‑‑‑Where sale was concluded on the basis "as is where is" the purchasers could not be heard to say that the quality of the goods was otherwise than what was presented at the time of sale‑‑‑Such an objection was not maintainable in circumstances.

Wafaq‑i‑Pakistan v. Awamunnas 1988 SCMR 2041 ref.

(b) Sale of Goods Act (III of 1930)‑‑‑

‑‑‑‑Ss. 37 & 42‑‑‑Goods were sold on "as is where is" basis‑‑‑Quantity and quality of goods sold, objection to‑‑‑Acceptance of goods by the buyer‑‑­Proof‑‑=Buyer, after retrieving the goods from the warehouse utilized the same and thereafter raised an objection qua the quantity and quality of goods so sold‑‑‑Validity‑‑‑Under the provisions of Ss.37 & 42 of Sale of Goods Act, 1930, it was obvious from the conduct of the buyer that his act of retrieving the goods was inconsistent with the ownership of the seller, but in any case the buyer had not rejected the goods‑‑‑Objection of the buyer was rejected and the sale was confirmed in circumstances.

Kh. Haris Ahmad for Petitioner.

Noor Muhammad Khan Chandia for National Bank of Pakistan.

M.R. Sheikh for the Soneri Bank Limited.

M.A. Gohar and Abid Mumtaz Tirmazi.

2000 C L C 744

[Lahore]

Before M. Javed Buttar, J

Mst. BEGUM through Legal Heirs

and 27 others‑‑‑Appellants

versus

ALLAH DITTA‑‑‑Respondent

Regular Second Appeal No. 106 of 1990 and Civil Miscellaneous Nos.2‑C of 1998 and 1‑C of 1999, heard on 14th May, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, R. 27‑‑‑Additional evidence‑‑‑Appellate Court, jurisdiction of‑‑­Scope‑‑‑Appellate Court under O.XLI, R.27, C.P.C. could, on its own, look into fresh material placed before it to see whether the same was relevant or not for the purposes of bringing such material on record of the suit as an additional evidence‑‑‑Appellate Court had inherent jurisdiction also to take necessary steps for the just and proper decision of a suit.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, Rr.27 & 33‑‑‑Additional evidence‑‑‑Bringing on record disputed mutation alongwith judgments and decrees passed by Trial Court an earlier litigation‑‑‑Validity‑‑‑Controversy between the parties could not be resolved justly and properly and complete justice could not be done unless and until such documents were brought on record as additional evidence‑‑‑Judgments and decrees of both the Courts below were set aside‑=‑Case was remanded to the Trial Court for a fresh decision 'after bringing the attested copies of additional evidence on record‑‑‑Appeal was allowed accordingly.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 100, 151 & O.XLI, Rr.22, 23, 23(a), 25, 27, 33‑‑‑First appeal‑‑­Second appeal‑‑‑Power of 9ppeals conferred on High Court and District Court‑‑‑Scope‑‑‑High Court could take necessary steps, suo motu, and issue directions; could direct Trial Court on its own, to bring all the necessary and relevant documents on record of the suit as an additional evidence, even without the asking of either party to the suit and could remand the case back to the Trial Court for fresh decision on merits in the light of the additional evidence to be brought on record‑‑‑Such authority could not be exercised arbitrarily and jurisdiction was to be exercised with caution and only where necessary‑‑‑While exercising such jurisdiction Court had. to record reasons for the same‑‑‑High Court could on its own; take all the necessary steps for doing complete justice and such an authority could be exercised under O.XLI, R.33, C.P.C. or if heed be in the exercise of its inherent jurisdiction under S.151, C.P.C.‑‑‑District Judge was also vested with such an authority while hearing first appeals against judgments and decrees passed by the Courts of original civil jurisdiction.

High Court at the stage of second appeal also, can take all the necessary directions, can direct the trial Court, on its own, to bring, all the necessary and relevant documents on the record of the suit as an additional evidence, even without the asking of either party to the suit and can remand the case back to the trial Court for fresh decision on merits in the light of the additional evidence, to be brought on the record. Necessary steps can be taken or can be directed, by High Court, to be taken by Court blow at any, stage of the hearing of the appeal and the exercise of such an authority, power and jurisdiction by High Court is limited only by the rule that High Court cannot exercise such an authority arbitrarily and this jurisdiction must be exercised with caution and only where necessary. It goes without saying that at the time of exercise of such a jurisdiction the Court must ‑‑ record reasons for the same. The District Judges are also vested with such an authority while hearing first appeals against judgments and decrees passed by the Courts of original civil jurisdiction.

The appellate Court can on its own take all the necessary steps for doing complete justice and such an authority can be exercised by it under Rule 33 of Order XLI, C.R.C. or if need be in the exercise of its inherent jurisdiction under‑section 151. C.P.C.

Iqbal Ahmed and others v. Khurshid Ahmed and others 1987 SCMR 744; Muhabbat v. Asadullah Khan and others PLD 1989 SC 112; Amanullah and others v. Mst. Ghulam Jannat and others 1989 SCMR 547: Mst. Fazlan Jan v. Roshan Bibi and 2 others PLD 1992 SC 811; Messrs S.M. Yousaf & Brothers v. Mirza Ahmed Mehdi Pooya and another PLD 1965 SC 15; Ahmed Khan v. Sattar D.in PLD 1981‑ SC 148; WAPDA and another v. Khanzada Muhammad Abdul Haq Khan Khatak & Company PLD 1990 SC 359; Ghulam Hussain and another v. Fazal Muhammad and 7 others PLD 1991 SC 218; Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590; North‑West Frontier Province Government, Peshawar v. Abdul Ghafoor Khan PLD 1993 SC 418; Khyber Insurance Company Ltd. v. Pakistan National Shipping Corporation PLD 1994 SC 725: Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512; Nazir Ahmed and another v. Abdullah 1999 SCMR 342 and Sri Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi alias Mooka Reedi and others AIR 1922 PC 292 ref.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, R. 27‑‑‑Post‑remand proceedings‑‑‑Exercise of jurisdiction by Trial Court‑‑‑Scope‑‑‑Scope of the trial in post‑remand proceedings is not as wide as at the time when the suit was being tried by the Trial Court originally‑‑‑Post‑remand proceedings have to be regulated by the Trial Court in terms of order of remand passed by the higher Court‑‑‑Trial Court during such proceedings may seek guidance from guidelines laid down by High Courts.

Muhammad Hussain v. Fazal Haq and another PLD 1974 Lah. 208

and Jamil Ahmed v. Saif‑ud‑Din PLD 1994 SC 501 rel.

Abdus Samad Hashmi for Appellant.

M. Aftab lqbal Ch. for Respondent.

Hafyz Khalil Ahmed for Applicant (in Civil Miscellaneous Nos.2/C of 1998 and 1/C of 1999).

Date of hearing: 14th May, 1999.

2000 C L C 759

[Lahore]

Before Muhamntad Akhtar Shabbir, J

Malik MUHAMMAD AKRAM‑‑‑Appellant

versus

KHUDA BAKHSH‑‑‑Respondent

Regular First Appeal No.51of 1989, decided on 18th October, 1999.

(a) Stamp Act (B of 1899)‑‑‑

‑‑‑‑S. 35‑‑‑Instrument not duly stamped‑‑‑Effect‑‑‑Such an instrument is inadmissible in evidence and the same is considered non‑existent in the suit in which it is tendered.

(b) Stamp Act (B of 1899)‑‑‑

‑‑‑‑Ss. 12 & 35‑‑‑Adhesive stamps not cancelled‑‑‑Effect‑‑‑Instrument on which all the adhesive stamps had not been cancelled was rendered inadmissible in evidence.

K.M. Mumir v. Mirza Rashid Ahmad PLD 1963 (W.P.) Kar. 905; United Bank Ltd. v. Mian Abdul Khaliq PLD 1988 Lah. 225: United Bank Ltd. v. Kurnool Muhammad, Muneer 1991 CLC 1758 and Mirza Arif Baig v Mubarak Ali PLD 1992 Lah. 366 rel.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑‑

‑‑‑‑Art. 45‑‑‑Document admitted without challenge‑‑‑Effect‑‑‑Where the document was inadmissible and not a valid document, even if the same was admitted and exhibited, would not be looked into to establish the case on such document.

(d) Negotiable Instruments Act (XXVI of 1881)‑‑‑

‑‑‑‑S. 118‑‑‑Presumption attached to an instrument‑‑‑Scope‑‑‑Presumption is attached only to an instrument which is executed validly and required adhesive stamps are affixed on the same.

Abdur Rehman v. Muhammad Usman 19$2 CLC 1128 arid Ch. Karam Singh v. Lal Singh AIR 1933 All. 109 rel.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXXVII, R.2‑‑‑Stamp Act (II of ‑1899), Ss. 12 & 35‑‑‑Suit for recovery on the basis of pronotei‑‑‑Pronote in question was insufficiently stamped and out of all 20 stamps, 4 denomination of 40 paisas each had not been cancelled at the time of execution of such pronote‑‑‑Such pronote was invalid document and no decree could be passed on the basis of such document‑‑‑Judgment and decree of the Trial Court was set aside‑‑‑Appeal was allowed in circumstances.

Ch. Muhammad Hussain Jahania for Appellant.

Ch. Nawab Ali for Respondent. ‑.

Date of hearing: 18th October, 1999.

2000 C L C 769

[Lahore]

Before M. Jared Buttar, J

MUHAMMAD BIBI and 4 others‑‑‑Petitioners

versus

PROVINCE OF PUNJAB through

Collector, District Sialkot and another‑‑‑Respondents

Civil Revision No. 144‑D of 1994, decided on 15th October, 1999.

(a) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 118‑‑‑Exchange of property‑‑‑Absence of delivery of possession‑‑­Defendant refused such exchange on the ground of absence of delivery of possession‑‑‑Trial Court decreed the suit while the Lower Appellate Court dismissed the suit‑‑‑Validity‑‑‑Absence of transfer of possession was not relevant and a valid exchange could not be cancelled, set aside or declared to be illegal merely on the ground that the part), seeking setting aside of the exchange was not delivered the possession of land given to it under exchange.

Ch. Allah Bakhsh v. Karam Ellahi and 4 others PLD 1988 Lah. 419 ref.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑S. 118‑‑‑"Exchange"‑‑‑Scope‑‑‑Absence of transfer of possession‑‑­Effect‑‑‑Mere absence of delivery of possession could not form basis for holding the transaction of exchange as'illegal. [p. 773] B

(c) Words and phrases‑‑‑

‑‑‑ "Exchange"‑‑‑Meaning.

C.M. Latif Rawn for Petitioner.

Taki Ahmed Khan for Respondent No.2.

Date of hearing: 13th October, 1999.

2000 C L C 781

[Lahore]

Before M. Javed. Buttar and Seed Zahid Hussain, JJ

Mehr GHULAM DASTGIR KHAN LAK‑‑‑Appellant

versus

HAYAT and 2 others‑‑‑Respondents

Regular First Appeal No. 120 of 1997. heard on 28th October, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XVII, R.3‑‑‑Suit was dismissed by Trial Court for non‑availability of complete evidence of plaintiff‑‑‑Validity‑‑‑Trial Court, instead of dismissing the suit, ought to have recorded statements of witnesses present in the Court‑‑‑Suit having not been adjourned on the asking of plaintiff, Trial Court illegally applied the provisions of O.XVII, R.3, C.P.C.‑‑‑Judgment and decree of Trial Court was set aside by High Court.

Haji Muhammad Ramzan v. Mian Abdul Majid and others PLD 1986 SC 129 and Jind Wadda and others v. Abdul Hamid and others PLD 1990 SC 1192 rel.

PLD 1996 Lah. 702; Shirin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Abid Hussain and others v. Aziz Fatima and others PLD 1995 SC 399 and Lahore Development Authority v. Muhammad Rashid 1997 SCMR 1224 distinguished.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 96‑‑‑Appeal barred by time due to office objections‑‑‑Effect‑‑‑Law did not intend to make the appeal as barred by time due _ to non‑compliance of petty objections raised by the office, but it would be barred by time only if the nature of the objections was such, that same could only be removed by the defaulting party itself, like making of deficiency of court‑fee, the deposit of printing charges, furnishing of certified copies of impugned judgment and decrees etc.

PLD 1996 Lah. 702; Shirin.and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Abid Hussain and others v. Aziz Fatima and others PLD 1995 SC 399 and Lahore Development Authority v. Muhammad Rashid 1997 SCMR 1224 distinguished.

A.K. Dogar for Appellant. Malik Noor Muhammad Awan for Respondents.

Date of hearing: 28th October, 1999.

2000 C L C 790

[Lahore]

Before Seed JaInshed Ali. J

Mst. SHAKIRA KHATOON and another‑‑‑Appellants

versus

MUHAMMAD ASHFAQ Respondent

First Appeal from Order No.71 of 1990, heard on 5th November, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VIII. R.10 & O. XLIII. R.1‑‑‑Joint written statement of more than one defendants‑‑‑Trial Court directing defendants to file joint written statement‑‑‑Failure to comply with such direction of Trial Court ‑‑‑Effect‑‑­All the defendants had an individual right to defend the suit personally or through an agent or a counsel‑‑‑Defendants could have conflicting interests and right to defend a suit was a valuable right‑‑‑If defendants were called upon to, submit a joint written statement any of the defendants could be prejudiced in his defence‑‑‑No provision or principle of law could be invoked to compel the defendants to file a joint written statement‑‑‑Judgment and decree passed by the Trial Court under O.VII1, R.10, C.P.C. for not filing a joint written statement by the defendants was set aside.

Mushtaq Ahmad Khawaja for Appellants.

M.A. Khadim for Respondent.

Date of hearing: 5th November, 1999.

2000 C L C 795

[Lahore].

Before Muhammad Akhtar Shabbir, J

SARBULAND and others‑‑‑Petitioners

versus

ASHIQ ALI and others‑‑‑Respondents

Civil Revision No. 151 of 1989, decided on 6th October, 1999.

(a) Muslim Family Lakes Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 4‑‑‑Succession‑‑‑Heirsof predeceased children ‑‑‑Entitlement‑‑­Children of predeceased son or daughter are entitled to inherit the property of their grandfather on his death.

Mst. Fazal Jan and another v. 2nd Member, Board of Revenue, N.W.F.P., Peshawar and 3 others PLD 1983 SC 53; Gul Muhammad v. Nemat Bibi and 8 others PLD 1998 Lah. 186; Muhammad Fikree and 3 others v. Fikree Development Comoration Ltd. and 8 others Ali v. Shahzullah Khan alias Shazullah Khan and 4 others 1993 CLC 545; Amir Afzal and 2 others v. Ghulam Haider PLD 1993 Pesh. 117; Mir Ahmad and another v. Fazal Elahi and another 1995 MLD 1583; Nizamuddin v. Faiz Muhammad PLD 1988 Lah. 321; Lainul Hassan Mian and others v. Mst. Khuwand Naka and others 1998 MLD 1857; Mst. Zainab v. ~ Kamal Khan alias Kamala PLD 1990 SC 1051 and Muhammad Hassan Musa and others v. Sardar Muhammad Javaid Musa 1995 CLC 51 rel.

(b) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 4‑‑‑Succession‑‑‑Provisionsof S.4, Muslim Family Laws Ordinance, 1961, are not against Injunctions of Islam and hold good as valid law.

Mst. Farishta v. Federation of Pakistan PLD 1980 Pesh. 47 rel.

Mirza Aziz Akbar Baig for Petitioners. Mehr Khizar Hayat for Respondent No. 1. Ch. Sanaul Haq for Respondent No.2.

Date of hearing: 6th October, 1999.

2000 C L C 808

[Lahore]

Before Muhammad Akhtar Shabbir, J

IJAZ AHMAD KHAN‑‑‑Petitioner

versus

MUHAMMAD ASIF‑‑‑Respondent

Civil Revision No. 280‑D of 1999, decided on 5th October, 1999.

(a) Punjab Pre‑emption Act (IX of 199t)‑‑‑

‑‑‑‑‑S. 24‑‑‑Pre‑emption suit‑‑‑Deposit of pre‑emption money‑‑‑Extension of time for such deposit‑‑‑Competency‑‑‑Time for deposit of 1/3rd of pre­emption money (Zar‑e‑Soem) cannot be extended by Court‑

Haji Rana Muhammad Shabbir Ahmed Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 cell.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 189‑‑‑Judicial propriety required that principles laid down by the apex Courts of the country were followed.

(c) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 24‑‑‑Pre‑emption suit‑‑‑Non‑deposit of 1/3rd pre‑emption money (Zar­e‑Soem) within period fixed for such deposit‑‑‑Effect‑‑‑Time for such deposit was fixed by the statute, thus, Trial Court had rightly dismissed the suit of pre‑emptor, for non‑compliance of the order of depositing of Zar‑e‑Soem.

Awal Noor v. District Judge, Karak and 8 others 1992 SCMR 746 and Muhammad Ismaeel v. Jameel‑ur‑Rehman and 6 others 1995 MLD 1011 fol.

Syed Kabeer Mahmood for Petitioner.

2000 C L C 811

[Lahore]

Before Syed Zahid Hussain, J

Mirza ZAHOOR BAIG‑‑‑Petitioner

versus

SARDAR KHAN through Legal Heirs‑‑‑Respondents

Civil Revision No. 1417‑D of 1986, heard on 27th October, 1999.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 4‑‑‑Pre‑emption suit‑‑‑Superior right of pre‑emption ‑‑‑Onus to prove‑‑‑Pre‑emptor was to prove his superior right of purchase on the date of sale, the date of suit and to maintain the same till the date of decree‑‑‑Judgment of the Lower Appellate Court was not supported by the evidence on record and the same could not be sustained‑‑‑Judgment of the Lower Appellate Court was set aside and that of the Trial Court restored.

Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 883 and Mst. Sardar Begum v. Muhammad Ilyas and another 1983 CLC 1570 ref.

Zafar Iqbal Chaudhary for Petitioner. Khizer Abbas Khan for Respondents.

Date of hearing: 27th October, 1999..

2000 C L C 814

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD ALI and 2 others‑‑‑Petitioners

versus

BARKAT ALI and 5 others‑‑‑Respondents

Civil Revision No.2555 of 1995, heard on 17th November, 1999.

(a) West Pakistan Land Revenue Act (XVI1 of 1967)‑‑‑

‑‑‑‑S. 45‑‑Title through mutation‑‑‑Proof‑‑‑Onus‑‑‑Scope‑‑‑Person who claims a title through a mutation, burden of proving the transaction embodied in that mutation is upon such person.

(b) Sale‑‑‑

‑‑‑‑ Sale involving substantial piece of land and money‑‑‑Iii absence of any agreement or receipt wyh regard to such transaction, the quality of evidence has to be of convincing nature, free of inconsistencies and discrepancies.

(c) West Pakistan Land Revenue Act (XVH of 1967)‑‑‑

‑‑‑‑S. 45‑‑ Oral sale through mutation‑‑‑Plaintiff denied the sale and assailed hr mutation in a civil suit‑‑‑Trial Court dismissed the suit while the Lower appellate Court reversed the findings of the Trial Court and decreed the suit favour of the plaintiff‑‑‑Validity‑‑‑Clear convincing and satisfactory evidence was required when the transaction of sale had to be proved by the Pendants‑‑‑Preponderance of the evidence available on record did not spire confidence to come to a conclusion that such a sale deed indeed take ;ice‑‑‑Where the defendants were lessee on "Batai basis" their possession could not be regarded in pursuance of any transaction of sale‑‑‑Approach of the Lower Appellate Court was more convincing and supported by the facts and circumstances of the case yin was upheld.

Naia and 2 others v_ Shamand and 4 others PLD 1985 Lah. 60?: Hakim Ali and 3,others v. Sh. Muhammad Mazhar Ali 1997 CLC 1645; Hakim Khan v. Nazeer Ahmad Lughamani and others 1990 MLn 89; Hakim Khan v. Nazee‑ Ahmad Lughmani and 10 others 1992 SCMR 1832 and Inayat Ali Shah v Anwar Hussain 1995 CLC 1906.ref.

Aamar Raza A. Khan for Petitioners.

Atif Amin for Respondents.

Date of hearing: 17th November, 1999.

2000 C L C 825

[Lahore]

Before Syed Zahid Hussain, J

Syed KHURSHID AHMED alias WAHID HUSSAIN

through General Attorney‑‑‑Appellant

versus

Rao MUHAMMAD AKRAM KHAN‑‑‑Respondent

Regular Second Appeal No.35 of 1997, decided on 18th October, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 100‑‑‑Second appeal‑‑‑Concurrent findings of facts‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑‑Rule that ordinarily concurrent findings of fact could not be interfered was not an absolute rule‑‑‑High Court could not shut its eyes when there was an apparent misreading of evidence and manifestly illegal conclusions had been drawn by Courts below‑‑‑Manifest injustice could not be permitted to be perpetrated simply for the reason that in second appeal High Court should not have looked at the evidence which formed the basis for the findings recorded by the Courts below‑‑‑Where the findings could not be supported by the evidence on record or the evidence was misread or the decision was 'in disregard of the evidence or was arrived at without due regard to the same, High Court was amply justified to consider the evidence and if necessary to interfere with the findings of the Courts below.

Madan Gopal and 4 others v. Ma ran Bepari and 3 others PLD 1969 SC 617; Mst. Bibi Jan v. Habib Khan and another PLD 1975 SC 295; Nazar Muhammad and another v. Mst. Shahzada Begum and another PLD 1974 SC 22; Mst. Fatima v. Khuda Bux PLD 1959 Lah. 826 and Muhammad Afsar and 7 others v. Allah Ditta and 13 others 1970 SCMR 118‑ ref.

(b) Civil Procedure Code (V of 1908)‑‑‑ .

‑‑‑‑0. XLI, R. 31‑‑‑Judgment of Appellate Court‑‑‑Duty of Appellate Court‑‑‑Reasons to be recorded‑‑‑Affirmance of the view of Trial Court by the First Appellate Court simply for the reason that Trial Court had thoroughly examined the evidence‑‑‑Validity‑‑‑Such a reason was not enough as Court of First Appeal had to come to its own independent conclusion on appreciation of the evidence on record‑‑‑Where the Lower Appellate Court had drawn such conclusion, approach of the Appellate Court was not upheld by High Court.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 75, 78 & 79‑‑‑Execution' of document‑‑‑Proof‑‑‑Number of witnesses to be produced‑‑‑Scope‑‑‑Sufficiency of the number of witnesses to be produced in a case may depend upon the facts and circumstances of each particular case.

(d) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal‑‑­Specific performance of an agreement to sell‑‑‑Execution of such document denied‑‑‑Onus to prove‑‑‑Plaintiff failed to prove the execution of such agreement to sell by the evidence produced in the Trial Court‑‑‑Suit was decreed in favour of the plaintiff by the Trial Court and the Lower Appellate Court affirmed the view of the Trial Court simply for the reason that the Trial Court had thoroughly examined the evidence and the appeal was dismissed‑‑‑Validity‑‑‑Execution of the agreement did not find support from the evidence on record, as such, no sanctity could be attached to the same‑‑­Where the plaintiff failed to prove the execution of agreement to sell, the suit ought to have been dismissed‑‑‑Judgments and decrees of both the Courts below were set aside by High Court.

Muhammad Sarwar and another v. Fazal Rehman 1982 CLC 1286; Zafar Iqbal and others v. Yaqoob and others 1995 CLC 7: Abdul Khaliq v. Muhammad Asghar Khan and 2 others PLD 1996 Lah. 367; Manzoor Hussain v. Mst. Asia Begum and others PLD 1990 Lah. 1014; Shamsher Ali v. Sardar Khan 1991 CLC Note 133 at p.110; Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh 1998 SCMR 760; Muhammad Ramzan v. Mst. Yaqoob Begum and others 1991 SCMR 819; Mst. Noor Bibi and 9 others v. Ghulam Rasool 1991 SCMR f281 and Malik Muhammad Hayat Khan v. Sub. Yar Muhammad Khan PLD 1966 SC 612 ref.

Hafeez‑ur‑Rehman Mirza for Appellant. Hassan Ahmed Khan Kunwar for Respondent.

Dates of hearing: 12th and 14th October, 1999.

2000 C L C 835

[Lahore]

Before Syed Zahid Hussain, J

ZIA‑UD-DIN and 7 others‑‑‑Petitioners

versus

JAMEELA AKHTAR and 3 others‑‑‑Respondents

Writ Petition No. 17541 of 1999, heard on 24th November, 1999

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑Summoning of record.‑.Controversy as to birth certificate of the petitioners‑‑‑Application of petitioners for summoning of the record of Metropolitan Corporation was dismissed by Trial Court and said decision was upheld by the Lower Appellate Court, ‑‑‑ and perusal of record as applied to be summoned by the petitioners was essential for just decision of the case‑‑‑Both the Courts below having failed to comprehend the controversy and object of application for summoning of the. record and the necessity of the same, their orders were illegal and of no legal effect and‑ were set aside under Constitutional jurisdiction by High Court.

Mst. Fazal Begum v. Bahadur Khan and another PLD 1983 Lah. 365; Muhammad Khalid v.,Muhammad Munir and 2 others PLD 1982 Lah. 630 and Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822 ref.

Syed Zaheer Saghir for Petitioners.

Qamar Riaz Hussain Basra for Respondents. ..

Date of hearing: 24th November, 1999.

2000 C L C 843

[Lahore]

Before Syed Zahid Hussain, J

NAZAR ALI and 3 others‑‑‑Petitioners

versus

MUNIR HUSSAIN and 2 others‑‑‑Respondents

Writ Petition No.38/R of 1988, decided on 26th November, 1999.

(a) Constitution of Pakistan (1973)‑---

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Findings of facts assailed in Constitutional petition‑‑‑Dispute as to granting of proprietary rights to the respondents in land in dispute‑‑‑Assistant Commissioner in successive inquiries found the respondents to be the members of the family of the petitioner, hence entitled to the grant of proprietary rights in land in question‑‑‑Validity‑‑‑Such findings of fact recorded repeatedly in successive inquiries on the initiation of the petitioners were based on the material duly appreciated by the inquiring officers and the findings so recorded, could not be said to be without basis‑‑‑Such findings of facts could not be interfered with by the High Court in Constitutional petition.

(b) Constitution of Pakistan (1973)‑‑‑

----‑Art. 199‑‑‑Constitutional petition‑‑‑Writ, issuance of.‑‑Principle‑‑‑Writ could not be issued if substantial justice had been done to the parties.

Awan Muhammad Hanif Khan for Petitioners.

Muhammad Amin Dar for Respondents Nos. l and 2.

Shahid Mubeen, Asstt. A.‑G. with Sajid Baloch for Respondent No.3.

Date of hearing: 24th November, 1999.

2000 C L C 847

[Lahore]

Before Ihsan‑ul‑Haq Chaudhry and Muhammad Zafar Yasin, JJ

CITI BANK N.A., A BANKING COMPANY through Attorney‑‑‑Appellant

versus

RIAZ AHMED ‑‑‑Respondent

Regular. First Appeals Nos.329 and 283 of 1999, heard on 12th January, 2000.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 11 & 21‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Time‑barred appeal‑­Failure to file application for condonation of delay'‑‑Effect ‑‑Appeal was to be filed within 30 days whereas same was delayed by .13 days‑‑‑Where no application under S.5 of Limitation Act, 1908, was filed, explaining delay of each day, the delay could not be condoned‑‑‑Appeal was dismissed as time­ barred in circumstances.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. II, R.2(2)‑‑‑Agitating the relinquished part of claim‑‑‑Validity‑‑‑Claim once relinquished or abandoned could not be agitated in view of provisions. of 0.11, R.2(2), C.P.C.

Wali.Muhammad v. Ghulam Rasool 1970 SCMR 471 ref.

(c) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 21‑‑‑Appeal against consent decree ‑‑‑Maintinability‑‑‑Such appeal is not

maintainable.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 9‑‑‑Suit for recovery of Bank loan‑‑‑Claim of subsidiary of plaintiff ­Bank included in the plaint‑‑‑Validity‑‑‑Where such subsidiary was a limited company, the same was an independent entity‑‑‑Plaintiff‑Bank could not claim amount on its behalf in the suit.

Pak American Fertilizers Ltd., Mianwali v. Amir Abdullah Khan 1984 CLC 2170 ref.

(e).Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 9‑‑‑Bankers' Books Evidence Act (XVIII of 1891), S.4‑‑‑Suit for recovery of Bank loan‑‑‑Statement of account‑‑‑Proof‑‑‑Validity‑‑‑Entry in the statement of account alone was not sufficient to prove the claim of the plaintiff‑Bank, corroboration was necessary in circumstances.

Messrs Muhammad Siddiq Muhammad Umar v. The Australasia Bank Ltd. PLD 1966 SC 684 and The Australasia Bank Ltd. v. Messrs H.S. Mahmood Hassan Akbar PLD 1983 Kar. 431 ref.

(f) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 9‑‑‑Bankers' Books Evidence Act (XVIII of 1891), S.4‑‑‑Suit for recovery of .Bank loan‑‑‑Statement of account‑‑‑Validity‑‑‑Presumption of truth is not attached to the statement of accounts.

The Australasia Bank Ltd. v. Messrs H.S. Mahmood Hassan Akbar PLD 1983 Kar 431 and State v. Muhammad Abdullah 1982 PCr.LJ 658 ref.

(g) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S,9‑‑‑Civil Procedure Code (V of 1908), O.XLI, Rr.2 & 27‑‑‑Suit for recovery of Bank loan‑‑‑Raising of new plea in appeal‑‑‑Validity‑‑‑Party could not be permitted to raise new ground of attack or defence by departing from its previous pleas‑‑‑Such pleas could not be raised in absence of any supporting evidence‑‑Where no application for additional evidence was moved as there was no evidence available for supporting the new pleas, such new pleas were not accepted‑‑‑Appeal was dismissed in circumstances.

Elahi Bakhsh v. Mst. Sardar Begum PLD 1967 BJ 5; Wali Muhammad v. Ghulam Rasool 1970 SCMR 471; Ganga Ghulam v. Sheo Mangal Bajpai AIR 1943 Oudh 83; Prosanna Kumar Roy Choudury v. Sint Adya Sakti Dasi AIR 1942 Cal. 586; Haji Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690; Mst. Murad Begum v. Muhammad Rafiq PLD 1974 SC 322; Fazal Rahman v. Amir Haider 1986 SCMR 1814; Abdul Hameed v. Abdul Qayyum 1998 SCMR 671 and Mehr Allah Ditta v. Muhammad Ali PLD 1972 SC 59 ref.

(h) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 9‑‑‑Suit for recovery of Bank loan‑‑‑Charging of mark‑up on mark­up‑‑‑Validity‑‑‑Where the Banking Court had worked out mark‑up on mark­up, such amount was decreed illegally in favour of the Bank and the same was set aside accordingly.

Syed Salim‑ud‑Din Nasir for Appellant.

Uzair Karamat Bhandari for Respondent.

Date of hearing: 12th January, 2000.

2000 C L C 855

[Lahore]

Before Dr. Munir Ahmad Mughal, J

Mian RIAZ MAJEED and others‑‑‑Petitioners

versus, PROVINCE OF THE PUNJAB and others‑‑‑Respondents

Writ Petition No.5303 of 1997, decided on 24th September, 1999.

Thai Development Authority Act (XV of 1949)‑‑‑

‑‑‑‑Ss. 21 & 36‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑‑Acquisition :of land‑‑‑Adjustment of acquired land‑ ‑‑Assistant Commissioner, on report of Extra‑Assistant Commissioner (Revenue) who was not Competent Authority under Thal Development Authority Act, 1949, adjusted land of petitic tiers in acquired land which land was already reserved for adjustment to petitioners‑‑‑Such order was passed ex parte as petitioners were not given opportunity of hearing which was counter to the principle of "audi alteram partem"‑‑‑Ex parte order passed by Authority on report of unauthorised officer was set aside by High Court, in exercise of its Constitutional jurisdiction and case was remanded to be decided afresh after hearing the parties.

Administrator, Thal Development Authority v. Muhammad and others 1994 Law Notes 1091; Board of Revenue v. Bashir Ahmad Khan 1988 SCMR 432 and Hakeem Abdur Rahim Khan and others v. West Pakistan Government through Secretary, Resettlement and Claims, Lahore and others PLD 1986 SC 96 ref.

Ch. Abdul Sattar Goraya for, Petitioner. Khadim Nadim Malik, Addl. A.‑G. for Respondents Nos. l to 5. Nemo for Respondents Nos.6 to 15.

2000 C L C 863

[Lahore]

Before Malik Muhammad Qayyum

and Ghulam Mahmood Qureshi, JJ

Mrs. AZIZ FATIMA and 3 others‑‑‑Appellants

versus

Mrs. REHANA CHUGHTAI and 3 others‑‑‑Respondents

Regular First Appeal No.31 of 1997, decided on 18th January, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXI, R.66(4)‑‑‑Proclamation of sales by public auction‑‑‑Non­disclosure of reserve price of property in the proclamation‑‑‑Effect‑‑‑Such non‑disclosure would render the auction liable to be struck down.

Brig. (Retd.) Mazhar‑ul‑Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and another PLD 1993 Lah. 706 ref:

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXI, R.66 & S.96‑‑‑Proclamation of sales by public auction‑‑­ Omission to mention reserve price of property in the proclamation‑‑­ Executing Court, in a suit for partition ordered for auction of suit property‑‑­ Contention by the appellants was that as no reserve price was fixed in the proclamation by the Executing Court, auction proceedings were illegal and were liable to be set aside‑‑‑Validity‑‑‑Such omission had rendered the proclamation to be illegal‑‑‑Even if there was no objection from either side, still it was the duty of the Executing Court to conduct the auction in accordance with law, which had not been done‑‑‑Proclamation pamphlets available on record showed that one of the conditions was to the ‑effect that "‑‑‑Effect‑‑‑Such condition being in clear violation of provisions contained under O.XXI, R.66, C.P.C., judgment and decree were set aside and Court was directed to issue fresh proclamation in circumstances.

Munir Ahmad Bhatti for Appellants. .

Kh; Ahmad Tariq Raheem for Respondents., Date of hearing: 17th November, 1999.

2000 .C L C 876

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J. _ .

MUHAMMAD IQBAL‑‑‑Appellant

versus

P. I.D.C.‑‑‑Respondent

First Appeal from Order No. 13 of 1990, heard on 21st May, 1999.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 26‑A‑‑‑Object of S.26‑A, Arbitration Act, 1940‑‑‑Award‑‑‑Recording of reasons in sufficient details by arbitrator in the award ‑‑‑Purpose‑‑‑Non­-consideration of relevant matters by arbitrator‑‑‑Effect‑‑‑Purpose of addition of S.26‑A of Arbitration Act, 1940, was to enable the parties as well as the Court to know and agitate any question of law emerging from the non-consideration of relevant matters.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 30‑‑‑Award‑‑‑Misconduct‑‑‑Interference with award‑‑‑Scope‑‑‑Where the conclusion drawn by arbitrator was perverse or reasons given by him were neither based on evidence produced before arbitrator nor on the law applicable on the subject, such award could be interfered with on the ground of misconduct.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 31‑‑‑Award, objection to‑‑‑Jurisdiction of Court dealing with such objections‑‑Scope‑‑‑Court neither acts as a Court of appeal nor a substitute forum for adjudication of the issues which the parties have agreed to be decided by the arbitrator‑‑‑Where conclusions drawn by the arbitrator were perverse or the view taken by him was bad in law or was inconsistent or in total departure from evidence of the parties, Court dealing with objections to the award did possess jurisdiction to interfere in. the award.

(d) Arbitration Act (X of 1940)‑‑=

‑‑‑‑S. 13(d)‑‑‑Award, correction of‑‑‑Scope‑‑‑After the award has been made, the arbitrator can make correction of typographical errors.

(e) Arbitration Act (X of 1940)‑‑‑ .

‑‑‑‑Ss. 26‑A & 31‑‑‑Award‑‑‑Arbitrator failed to give any reason for the conclusion drawn and the award did not indicate the fact as to how the conclusion formed by the arbitrator was reached and how the documents in the light of the facts of the case were. dealt with by the arbitrator‑‑‑Validity‑‑‑Such award was not framed in accordance with the provisions of S.26‑A of Arbitration Act, 1940‑‑‑Trial Court refusing to remit such award to the arbitrator for securing reasons and to adjudicate on the objections raised, acted with material illegality‑‑‑High Court remitted the award to the arbitrator accordingly.

Province of the Punjab and others v. Messrs Industrial Tools, Lahore 1986 MLD 501 and J.F.C. Gollaher v. Samad Khan 1993 MLD 726 ref.

Abdul Shakoor Peracha for Appellant.

G.S. Khan for Respondents.

Dates of hearing: 19th, 20th and 21st May, 1999.

2000 C L C 885

[Lahore]

Before Karamat Nazir Bhandari, J

MUHAMMAD YASIN‑‑‑Petitioner

versus

CHAIRMAN, BOARD OF INTERMEDIATE

AND SECONDARY EDUCATION, SARGODHA

and another‑‑‑Respondents

Writ Petition No. 18139 of 1999, heard on 16th December, 1999.

Educational institution‑‑‑

‑‑‑‑ Charge of impersonation against the candidate in the Matriculation Examination‑‑‑Education Board having found the candidate guilty of offence directed him to return his Matriculation Certificate to the Board‑‑‑Acquittal of candidate by Criminal Court on the said charge did not debar the respondent‑Board to come to its own findings and conclusions‑‑‑Both the proceedings were independent, separate and were taken within the parameters of respective laws‑‑‑Where the candidate made the confessional statement, the findings of the Board that the candidate had been guilty of impersonation was beyond doubt‑‑‑Acquittal by Criminal Court was of no avail to the candidate and the penalty imposed by the Board had the backing of law.

M.M. Alan Chaudhry for Petitioner.

M. Mohy‑ud‑Din Qazi with Respondent No. 1.

Date of hearing: 16th December, 1999.

2000 C L C 887'

[Lahore]

Before Jawwad S. Khawaja, J

REX THEATRE through

Masood Arif Butt, Advocate‑‑‑Petitioner , ,~

versus

SECRETARY TO GOVERNMENT OF PUNJAB,.

EXECISE DEPARTMENT, LAHORE and 6 others‑‑‑Respondents

Writ Petition No. 10288 of 1999, decided on 1st December, 1999.

Entertainment Duty Act (X of 1958)‑‑‑

‑‑‑‑S. 8(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Exemption from entertainment duty‑‑‑Scope‑‑‑Contention by petitioner was that concession in entertainment duty given to certain theatres was not available to the petitioner who was similarly placed‑‑‑Validity‑‑‑Such concession could not be granted or disallowed on the basis of the whims fancies and dislikes of Government functionaries‑‑‑High Court directed the Excise and Taxation Department to ensure the formulation and implementation of a uniform and transparent policy for grant of concessions or exemptions from entertainment duty under S.8(2) of Entertainment Duty Act, 1958 and such policy should be equally and uniformly applicable to all theatres which were similarly placed‑‑‑Application of the petitioner pending before the Authority was also ordered to be so decided.

Muhammad Ghias‑ul‑Haq Sheikh assisted by Ms. Waheeda Yaqoob for Petitioner.

Tahir Haider Wasti, A.A.‑G. with Safdar Hussain Bokhari, E.T.O., Multan for Respondents.

2000 C L C 892

[Lahore]

Before Syed Zahid Hussain, J

MUBARIK ALI SHAH and another‑‑‑Petitioners

versus

NAZIR AHMAD SHAH and 10 others‑‑‑Respondents

Writ Petition No.3924 of 1982, heard on 20th December, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VI, R.17‑‑‑Amendment of plaint‑‑‑Accrual of vested right‑‑‑Validity of a gift deed was challenged‑‑‑Suit was still at initial stage and no evidence had yet been recorded when application for amendment of plaint was made‑‑­Effect‑‑‑Seeking of amendment was not a belated move as the same was within the limitation for challenging the gift deed‑‑‑Question of accrual of a vested right in favour of defendant was not relevant in circumstances.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VI, R.17‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Amendment of plaint‑‑‑Inadvertent omission in the plaint‑‑­Validity of a gift deed was challenged by the plaintiff in a suit but omitted to mention a land situated in other Mauza (village) whereas relevant prayer in that regard had already been made in the plaint‑‑‑Trial Court considering the same as inadvertent omission, allowed the amendment, but the Lower Appellate Court in exercise of revisional jurisdiction, reversed the order of the Trial Court‑‑‑Validity‑‑‑Trial Court was empowered to allow the amendment in the pleadings at any stage of the proceedings for the purpose of determining the real questions in controversy between the parties under the provisions of O. VI, R.17, C. P. C.‑‑‑Where the real controversy was the validity or otherwise of the gift deed, such omission in the plaint, for which prayer had already been made in the plaint was rightly considered by the Trial Court as an inadvertent omission and the amendment was accordingly allowed‑‑‑Order of the Lower Appellate Court being illegal and without lawful authority was set aside by High Court.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and SEMCO Salvage PTE Limited v. m.v. Kaptan Yusuf Kalkavan and another 1993 SCMR 593 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VI, R. 17 & S. 115‑‑‑Amendment in pleadings‑‑‑Exercise of revisional jurisdiction‑‑‑Scope‑‑‑Where the order of the Trial Court was not patently, arbitrary or unwarranted on facts and. law, such order was not open to' interference by the Lower Appellate Court, in exercise of revisional jurisdiction. [p. 896] C

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VI, R. 17' & &115‑‑‑Amendment in pleadings‑‑‑"Case decided"‑‑­Scope‑‑‑Order of amendment in pleadings is a "case decided" and may be interfered with in revision.

Bashir Ali Khan v. Qaiser Ali Khan and 2 others PLD 1973 SC 507 and Abdul Aziz Shah and another v. Abdul Ghafoor and another 1985 SCMR 221 rel.

Ch. Ahmad Din and 2 others v. The Australasia Bank Ltd., Bhalwal 1971 SCMR 507 distinguished.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction, exercise of ‑‑‑Revisional order‑‑‑Scope‑‑‑No hard and fast rule can be laid down that in no case Constitutional jurisdiction is invocable against the revisional order, but decision in such matter would depend upon the facts and circumstances of a case.

Badarul Arneer for Petitioner.

Mansoorur Rehman Khan Afridi for Respondents Nos.l to 3 and 5 to 10.

Respondent NoA: Ex pane.

Date of hearing: 20th December, 1999.

2000 C L C 913

[Lahore]

Before Ali Nawaz Chowhan, J

ASIF KHURSHID‑‑‑Petitioner

versus

SAEED AHMAD‑‑‑Respondent

Civil Revision No. 84 of 2000, decided on 24th February, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXXVII; Rr.2 & 3‑‑‑Summary suits on basis of bills of exchange, promissory notes, cheques, hundis, etc.‑‑‑Object and scope‑‑‑Provisions of O.XXXVII, C.P.C. are intended to foster justice and to avoid ex parte judgments as far as possible‑‑‑Object and spirit of O.XXXVII, C.P.C. is to provide mechanism for speedy, efficacious and summary remedy for recovery of money in respect of suits which are filed on basis of promissory notes, bills of exchange, cheques, hundis‑‑‑Essence of such suits is that the plaints should disclose an open and shut case for the plaintiff to prove and for the defendant to defend the same‑‑‑Provisions of O.XXXVII, C.P.C. and the spirit behind the law and its requirements, if appreciated only superfluously, the result will be that the purpose for which this alternate procedure has been provided with the desire of providing efficacious remedy in case of certain instruments, will be defeated and the cases will be prolonged on that account and infirmities will be found in the orders of Trial Courts, petitions for leave to defend and affidavits attached with , such petitions pursuant to the requirements of O.XXXVII, R.3, C.P.C. [pp. 916, 917, 918] A, C & J

Cotton Export Corporation of Pakistan (Pvt.) Ltd, v. Messrs Nagina Cotton Industries Ginning Pressing and Oil Mills and 6 others 1993 CLC 2217 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXXVII, R. 3‑‑‑Leave to appear and defend the suits, grant of‑‑­Jurisdiction of Trial Court‑‑‑Discretionary relief‑‑‑Scope‑‑‑Defendants in suits filed under OXXXVII, C.P.C. have no right to defend the suits without grant of leave by Trial Court‑‑‑Such is discretionary relief and the same has to be exercised judiciously on the basis of affidavits which may sufficiently support application for leave to defend‑‑‑Once leave is granted, the same may be' unconditional or subject to terms like security etc., which Trial Court may think fit‑‑‑Such leave may not be allowed on the basis that the defendant will ultimately succeed, rather it can be enough for defendant to give his case an arguable look‑‑‑Where grounds raised by the defendant are in shape of plausible defence so as to displace rebuttable presumption attached to documents on account of which the more efficacious remedy is sought, leave may be granted.

Messrs Chaudhry Textile Mills and others v. United Bank Limited 1987 CLC 1957 and AIR 1965 Mad. 218 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXXVII, R. 3‑‑‑Application for leave to defend suit‑‑‑Duty of Trial Court‑‑‑Trial Court has only to examine the defences and objections in such application and should not go into the truth or the falsity of the defence.

National Bank of Pakistan v. Messrs Elegzender & Company and 2 others PLD 1987 Lah. 290 and Messrs National Security Insurance Company Ltd. and others v. Messrs Hoechst Pakistan Ltd. and others 1992 SCMR 718 ref.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXXVII, R.2(2)‑‑‑Application for leave to defend suit‑‑‑Where the defence is said to be illusory, leave may .be refused and the suit decreed.

Banque Indosuez v. Jet Travels Ltd. and 4 others 1991 CLC 446; Allied Bank of Pakistan v. Messrs Faiz Ahmad Manzoor Ahmad and others PLD 1985 Lah. 188; Hamidullah Khan v. Muhammad Nawaz Qasuri PLD 1982 Lah. 203 and Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163 ref.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0 XXXVII, R.3‑‑‑Application for leave to defend the 4suit‑‑‑Grant of‑‑­Scope‑‑‑Where Court finds that claim of plaintiff is prima facie frivolous or untenable, or where substantial questions of law and facts arise or where triable issues are raised or where there is a question of limitation, leave has to be granted unconditionally.

Al‑Qaim Traders v. Habib Bank Ltd. 1989 CLC 1633 ref.

(f) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXXVII, R.3(2)‑‑‑Application for leave to defend the suit‑‑‑Grant of conditional leave‑‑‑Scope‑‑‑Where Court thinks that the defence is not bona fide, a conditional leave may be given after considering the pleadings, affidavits and other material‑‑‑Court may record evidence for ascertaining such fact.

Muhammad Arif v. Abdul Qayyum 1991 CLC 442 and Messrs Ark Industrial Management Ltd. v. Messrs Habib Bank Ltd. PLD 1991 SC 976 ref.

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

‑‑‑‑0. XXXVII, R. 3(2)‑‑‑Application for leave to defend the suit‑‑‑Grant of‑‑‑Furnishing security for costs‑‑‑Leave to defend the suit may be granted where payment is claimed to have been made.

K.M. Yousaf v. Muhammad Ahmad Sheikh 1986 CLC 950 ref.

(h) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXXVII, R. 3‑‑‑Leave to defend the suit, grant of‑‑‑Exercise of jurisdiction by Trial Court‑‑‑Duty of Court‑‑‑Court has not to pass the order arbitrarily or exercise its discretion without studying affidavit or application which it supports‑‑‑Court has to satisfy its conscience before allowing leave to defend suit conditionally or unconditionally and to see that there were plausible reasons for the same.

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

‑‑‑‑0. XXXVII, R. 3‑‑‑High Court (Lahore) Rules and Orders, Vol.IV, Part B, Chap. 12‑B, Rr.8, 9, 12, 14 & 15‑‑‑Application, for leave to defend the suit‑‑‑Affidavit filed by the defendant said nothing about the payment having been made as stated by the defendant in the application‑‑‑Such affidavit was neither in accordance with Rr.8, 9, 12, 14 & 15 of High Court (Lahore) Rules and Orders nor the same satisfied the requirement set by O.XXXVII, R.3, C.P.C.

Bashir Ahmad v. Abdul Waheed PLD 1.995 Lah. 98 ref.

(j) Civil Procedure Code (V of 1908)‑‑‑.

‑‑‑‑S. 115 & O. XXXVII, R.3‑‑‑Leave to defend the suit, grant of‑‑‑Trial Court while granting such leave directed the defendant to furnish Bank guarantee‑‑‑Order of Trial Court was not a speaking order as to why Bank guarantee was to be deposited instead of other security which was easily procurable‑‑‑Validity‑‑‑Requirement of furnishing of Bank guarantee without reasons imposed harshness on applicant for leave to defend‑‑‑Such order, to the extent of that condition was without judicial basis, could be cured by the High Court while exercising visitorial jurisdiction‑‑‑Words "furnishing of reliable security for the amount involved" were substituted in the leave granting order of the Trial Court by High Court in place of words "furnishing of the Bank guarantee".

Muhammad Nasir v. Muhammad Alam 1992 CLC 1705; Abdul Karim Jaffarani v. United Bank Ltd. and 2 others 1984 SCMR 568 and Haji Abdul Wahid v. Hoechst Pakistan Ltd. and another AIR 1965 Mad. 218 ref.

Ch. Abdul Ghani for Petitioner.

Mian Arshad Latif and Ahmad Usman Khan Miana for Respondent.

2000 C L C 920

[Lahore]

Before lhsan‑ul‑Haq Chaudhry, J

ABDUL BASIT and another‑‑‑Petitioners

versus

MUHAMMAD ASHRAF DAR and another‑‑‑Respondents

Civil Revision No.902 of 1996, heard on 15th December, 1999.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 30 & 33‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Award, challenge to‑‑‑Remedy‑‑‑Where only the award was challenged, the remedy available was provided under Ss.30 & 33 of Arbitration Act, 1940 Where, however, the judgment and decree was challenged on the basis of misrepresentation or fraud, no provision existed in Arbitration Act, 1940 providing remedy against such decree‑‑‑Application under S.12(2), C.P.C. was, thus, competent in circumstances.

Muhammad Yasin v. Sheikh Hanif Ahmed and 4 others 1993 SCMR 437 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 12(2) & 115‑‑‑Revision‑‑‑Maintainability‑‑‑Application under S.12(2), C.P.C. was dismissed by Trial Court and 'said order was assailed before High Court in revision‑‑‑Validity‑‑‑Where application under S.12(2), C.P.C. was competent, revision was maintainable‑‑‑Petitioners failed to make out any case for interference in the revisional jurisdiction‑‑‑Revision was dismissed in circumstances.

Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 1 ref.

Ahmad Awais for Petitioners.

Ch. Muzammal Khan for Respondent No. 1.

Respondent No. 2; Ex parse.

Date of hearing: 15th December, 1999. ‑

2000 C L C 929

[Lahore]

Before Syed Zahid Hussain, J

ZUBAIDA BEGUM and 6 others‑‑‑Petitioners

versus

Mst. MAJEEDA KAUKAB‑‑‑Respondent

Civil Revision No. 1402 of 1992, decided on 23rd December, 1999.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement to sell‑‑‑Defendant denied execution of any such agreement, but admitted her signatures on the document and money received‑‑‑Plea raised by defendant was that her signatures were obtained on a blank paper while the amount was received as a loan‑‑‑Trial Court decreed the suit and such findings were affirmed by Lower Appellate Court‑‑‑Validity‑‑‑No convincing and reliable evidence was brought on record to show that document was indeed for some other purpose than agreement to sell‑‑‑Where the deposition of the scribe of document remained un shaken and other evidence of plaintiff was confidence inspiring, findings of two Courts below were justified and warranted no interference. [pp. 932, 9331 A & C

Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395; Ghulam Nabi v. Muhammad Yusuf and 2 others 1993 CLC 314; Ghulam Hussain and 7 others v. Mehdi Hassan Khan and 6 others PLD 1993 Lah‑ 303; Muhammad Zairian Khan v. Sher Afzal Khan and 8 others PLD 1984 SC (A1&Kl 138; Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403 and The Allied Bank of Pakistan Ltd., Karachi v. Messrs Karomax Industries and 3 others OLD 1976 Kar. 983 ref.

(b) Specific Relief Act (I of 1877)‑‑‑ `

‑‑‑‑S. 22‑‑‑Specific performance of contract of sale of immovable property‑‑ Inadequacy of consideration money could not vitiate the transaction.

Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170 ref.

(c) Muhammadan law‑‑‑

‑‑‑‑ Oral gift‑‑‑Proof‑‑‑Gift could be made orally but the same was to be established through clear and convincing evidence under S.129, Transfer of Property Act, 1882‑‑‑Transfer of Property Act (IV of 1882), S.129.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings recorded by both the Courts below‑‑‑Scope of interference in revision‑‑‑Where such findings were duly borne out from the evidence on record, no exception could be taken to the conclusions and judgments of both the Courts below‑‑‑Concurrent findings of two Courts below were not upset in circumstances.

Mian Nisar Ahmad for Petitioners. Ghulam Qadir Sheikh for Respondent.

Dates of hearing: 17th, 19th, 22nd, 24th and 26th November, 1999.

2000 C L C 939

[Lahore]

Before Malik Muhammad Qayyum, J

GHULAM RASOOL and 3 others‑‑‑Appellants

versus

AHMAD through Legal Heirs‑‑‑Respondent

Regular Second Appeal No. 131 of 1981, decided on 1st November, 1999.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 15‑‑‑Pre‑emption suit‑‑‑Deficiency in court‑fee‑‑‑Controversy with regard to making up of deficiency in court‑fee‑‑‑Trial Court ordered for making up of such deficiency but failed to specify the amount of deficiency‑‑‑Trial Court, although admitted the superior right. of pre­emption of the pre‑emptor yet dismissed the suit on the ground of making up of the deficiency on the date fixed and not before that date as the same was ordered‑‑‑Appellate Court reversed the findings in appeals and decreed the suit‑‑‑Validity‑‑‑Where valuation of the suit for the purposes of court‑fee and jurisdiction was not determined by the Trial Court the suit of the pre‑emptor could not be dismissed, even if such order of the Trial Court was not complied with ‑‑‑Pre‑emptor applied for extension of one day time of making up of deficiency in court‑fee as the court‑fee was not available‑‑‑Although no order was passed on that application yet the court‑fee was accepted in presence of the other party without any objection‑‑‑Findings of Trial Court on the point of court‑fee was rightly reversed by the Lower Appellate Court in circumstances.

Shahna Khan v. Aulia Khan and others PLD 1984 SC 157; Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 and Muhammad Hanif v. Muhammad PLD 1990 SC 859 rel.

Aamer Sohail Saleemi for Appellants. Muhammad Nazir Janjua for Respondent.

Date of hearing: 19th October, 1999.

2000 C L C 948

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

AMANULLAH and others‑‑‑Petitioners

versus

MUHAMMAD ASHRAF BAJWA and others‑‑‑Respondents

Civil Revision No.3174 of 1994, heard on 29th February, 2000.

Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑Ss. 67 & 77‑‑‑Limitation Act (IX of 1908), Art.148‑‑‑Suit for foreclosure‑‑‑Right to redeem mortgaged property‑‑‑Limitation‑‑‑Mortgage which was hundred years old, was with possession, but terms of mortgage could not be determined due to non‑availability of mortgage‑deed‑‑‑Period of sixty years has been provided to redeem possession of mortgaged property under Art. 148 of Limitation Act, 1908, but mortgagor had failed to redeem possession despite hundred years had passed‑‑‑Time being a great factor, principles of equity and good conscience could not be applied especially when mortgagor was non‑suited for filing suit for possession of mortgaged property after expiry of statutory period of limitation‑‑‑Maxim that equity would help vigilant and not indolent would aptly came into play and only the person conscious of his right becoming vigilant to enforce his right before the right was destroyed, could seek aid of natural justice.

Ismail v. S.A.M. Khan and 35 others PLD 1972 Lah. 682; Abdur Rehman and 12 others v. Muhammad Akram and 79 others 1999 SCMR 100; Haji Yaqub Khan v. Murree Cantonment Board, Murree 1987 CLC 108; Messrs Habib Bank Ltd., Karachi and others v. Ghmlam Haider and another PLD 1975 Lah. 489; Muhammad Nadeem Butt v. Allied Bank of Pakistan PLD 1985 SC 298; Dilawar Khan and another v. Sher Afzal Khan and others 1988 CLC 815; 1975 Punjab Statute p.31; Mool Chand and others v. Ganga Jai and others AIR 1930 L ah. 356; Saifullah Khan v. Chaman Lal and others AIR 1936 Pesh. 43; Maqbool Ahmad's case 1991 SCMR 2063 and Anwar Ali and others v. Manzoor Hussain 1996 SCMR 1770 ref.

Ch. Muhammad Yaqoob Sindhu for Petitioners.

Muhammad Ashraf Bajwa for Respondents.

Date of hearing: 29th February, 2000..

2000 C L C 953

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD LIAQUAT and 5 others‑‑‑Petitioners

versus

MEMBER BOARD OF REVENUE (COLONIES), PUNJAB, LAHORE and 3 others‑‑‑Respondents

Writ Petition No. 1266 of 1995, heard on 22nd November, 1999.

(a) Colonization of Government Lands (Punjab) Act (V of.1912)‑‑‑

‑‑‑‑S. 30(2)‑‑‑Voidable conveyance ‑‑‑Voidable conveyance remains effective and does not, in any manner, impair the rights of the vendee to deal with the land conveyed, until the same is set aside on the ground of fraud.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑(. 30(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑7‑Constitutional petition‑‑‑Resumption of land by the Government‑‑‑Proprietary rights of the disputed land were granted to the respondent and as such a valid and alienable title vested in him‑‑‑Petitioners purchased said land from respondent for a valuable consideration‑‑‑Board of Revenue after such alienation, determined that respondent had acquired that land by means of fraud and the allotment and conveyance deed in favour of the respondent was cancelled and petitioners were directed to purchase the land on payment of market price‑‑‑Validity‑‑‑Any such subsequent determination by Board of Revenue could not possibly affact the title of the petitioners as the same was acquired at a time when such title was vested in the respondent‑‑‑Not open to the Board of Revenue to resume the land which already stood vested in the petitioners prior to the date of resumption in exercise of powers under S.30(2) of Colonization of Government Lands (Punjab) Act, 1912‑‑‑Order of Board of Revenue was set aside.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 30(2)‑‑‑Resuming the land for which proprietary rights had already been issued‑‑‑Powers of Board of Revenue‑‑‑Scope‑‑‑Where transferee had further conveyed the land to bona fide purchaser, such power could not have been exercised. [p. 957] C

Muhammad Khalid Alvi for Petitioners. Ch. Muhammad Hussain Jahanian for Respondents Nos. 3 and 4. Iftikhar‑ur‑Rashid, A.A.‑G. for Respondents.

Date of hearing: 22nd November, 1999.

2000 C L C 962

[Lahore]

Before Malik Muhammad Qayyum, J

COMMERCE AND INDUSTRIES CORPORATION, PAKISTAN (PRIVATE) LIMITED‑‑‑Petitioner

versus

CHINA NATIONAL MACHINERY AND EQUIPMENT

IMPORT AND EXPORT CORPORATION (BEIJING)‑‑‑Respondent

Review Application No. 16 of 1998, decided on 7th December, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 114‑‑‑Review application‑‑‑Maintainability‑‑‑Where judgment under review suffered from errors floating on the surface of the record and there was misreading and non‑consideration of material evidence, review application against such judgment was maintainable in 'circumstances.

(b) Civil Procedure Code (V of 1998)‑‑‑

‑‑‑‑S. 114‑‑‑Review of judgment‑‑‑Ignoring of important pieces of evidence in the judgment, while certain assumptions had been made which were not supported by evidence or were based upon misreading of the same‑‑­Effect‑‑‑Judgment and decree under review was set aside in circumstances.

Shahzad Jehangir for Petitioner. Faisal Islam for Respondent.

2000 C L C 968

[Lahore] v Before Malik Muhammad Qayyum, J

Messrs UNITED BANK LTD. ‑‑‑Plaintiff

versus

Messrs REDCO TEXTILES LTD. and 7 others‑‑‑Defendants

Civil Original Suit No. 146 of 1998, decided on 23rd November, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XII, R. 6‑‑‑Contract Act (IX of 1872), S.39‑‑‑Decreeing of suit on the basis of admission‑‑‑Repudiation of agreement‑‑‑Effect‑‑‑Contention raised by defendants was that the suit should be decreed in terms of agreement arrived at between the parties‑‑‑Defendants themselves had refused to admit the existence of any agreement and had dubbed the same to be fictitious and fake‑‑‑Where such repudiation was accepted by the plaintiff as provided by S.39, Contract Act, 1872, it could not be said that there was subsisting agreement between the parties in circumstances.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XIV of 1997)‑‑‑

‑‑‑‑S. 9‑‑‑Banks (Nationalization) Act (XIX of 1.974), S.3‑‑‑Suit for recovery of Bank loan‑‑‑Competence of person filing the suit‑‑‑Filing of suit by person authorised by the Executive Board of the Bank and not by the Board of Directors‑‑‑Validity‑‑‑Provisions of Banks (Nationalization) Act, 1974, originally provided setting‑up of Executive Board and it was only by the amendment made by the Banks (Nationalistaion) (Amendment) Act, 1974, that the concept of Executive Board was done away and the same was replaced by the Board of Directors‑‑‑Such an amendment was made much after the execution of power of attorney of person filing the suit‑‑‑When the power of attorney was executed it was the Executive Board which could authorise and appoint attorneys‑‑‑Power of attorney had authorised the attorney to commence, prosecute and defend all actions or proceedings, whether civil, criminal or revenue and to engage counsel on behalf of the bank‑‑‑Suit, in circumstances, was filed by a competent person.

Messrs United Bank Ltd. of Pakistan's case PLD 1997 Kar. 62 ref.

(c) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XIV of 1997)‑‑‑

‑‑‑‑5. ‑ 17(3)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 17‑‑‑Blank Banking documents‑‑‑Effect‑‑‑Under the provision of S.17(3) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, where such documents were executed prior to coming into force of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, and the same were not even attested in the manner laid down in Art. 17 of Qanun‑e‑Shahadat, 1984, such blank documents were not invalid.

(d) Banking Companies (Recovery of Loans, Advances, Credits and

Finances) Act (XIV of 1997)‑‑‑

‑‑‑‑S. 10‑‑‑Civil Procedure Code (V of 1908); O.XXXVII, R.3‑‑‑Leave. to defend the suit‑‑‑Provisions of S.10, Banking Companies, (Recovery of Loans, Advances, Credits and Finances Act, 1997 and provisions of O.XXXVII, R.3 of C.P.C., distinguished.

In suits filed under Order XXXVII of the Code of Civil Procedure, if a triable issue is disclosed, unconditional leave to appear and defend should be granted but if the defendants disclose a vague or indefinite plea, leave should be granted subject to certain conditions. This principle has applicability to the suits filed under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, section 10 of which provides that the Court shall grant leave to defend the suit only if a serious and bona fide dispute is raised thereby.

(e) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XIV of 1997)‑‑‑

‑‑‑‑Ss. 9 & 10‑‑‑Suit for recovery of Bank loan‑‑‑Leave to defend suit‑‑­Nowhere in the application for leave to defend, the defendant had denied or disputed the receipt of different amounts on different dates under the agreements for finance‑‑‑Only ground raised in that respect was that the amount had yet not fallen due‑‑‑Validity‑‑‑Such stand of the defendants stood negated from the report of the Chartered Accountant of the defendants themselves, as the same had. given the due dates for payment and had also mentioned the fact that the defendants were in default‑‑‑Dispute raised by the defendants was neither serious nor bona fide‑‑‑Leave to appear and defend the suit was not granted in circumstances.

Budho and others v. Ghulam Shah PLD 1963 SC 553; Amin Yousuf Nizami v. Rashid:Rayon Mills, Karachi PLD 1971 Kar. 505 and Ala‑ud‑Din v. Farkhanda Akhtar PLD 1953 Lah. 131 ref.

(f) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XIV of 1997)‑‑‑

‑‑‑‑Ss. 9(4) & 10‑‑‑Failure to obtain leave to appear and defend the suit‑‑­Effect‑‑‑Where no such leave was granted, the averments made in the plaint were deemed to be correct as provided in S.9(4) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, and the suit was decreed accordingly.

Sulman Akram Raja for Plaintiff. Sulman Aslam Butt for Defendants.

2000 C L C 987

[Lahore], Before Malik Muhammad Qayyum, J

Messrs MGM CORPORATION (PVT.) LIMITED‑‑‑Petitioner ‑

versus

THE PROVINCE OF PUNJAB through, Secretary, Revenue Department, Government of Punjab, Provincial

Secretariat, Lahore and 2 others‑ ‑‑Respondents

Writ Petitions Nos.18187, 18877, 18878; 18864, 17252, 17997, 15464, 15291, 15465, 16000, 16268, 16074,16075, 16130, 16129, 16128, 15824, 15945, 16590, 16695, 16408. 17163. 17164, 17165, 17166, 17167, 17910, 17911, 18372, 18375, 18374, 18373. 18376. 17742, 17741, 17744, 17743 and 191)51 of 1999, heard on 4th October, 1999.

Punjab Finance Act (XV of 1977)‑‑‑

‑‑‑‑S. 3, Sched. II‑‑‑Punjab Finance Act (IX of 1999)‑‑‑Constitution of Pakistan (1973), Arts.25 & 199‑‑‑Constitutional petition‑‑‑Classification of companies on the basis of their paid‑up capital‑‑‑Inconsistency between the charging section and the Sched. of Punjab Finance Act, 1977‑‑‑No inconsistency existed between charging section and Sched. II of the Punjab Finance Act, 1977 as the rates at which the taxes were to be paid by different classes and incorporated companies were laid down‑‑‑Under the provisions of the equality clause as enshrined in Art.25 of the Constitution, reasonable classification was not prohibited, though it required that all persons similarly placed should be treated alike‑‑‑Classification of companies on the basis of their paid‑up capital was rational and was in furtherance of the purpose for which the tax had been levied.

Siemen Pakistan Engineering Company Ltd. v. The Province of Punjab through Secretary, Revenue Department, Government of Punjab and 2 others PLD 1999 Lah. 244 distinguished.

Excise and Taxation Officer, Karachi and another v. Burmah Shell Storage and Distribution Company of Pakistan Ltd. and 5 others 1993 SCMR 338 ref.

Imtiaz Rashid Siddiqui for Petitioner.

M. Nawaz Bhatti, Addl. A.‑G. and Mian Shahid Iqbal, Asstt. A.‑G. for Respondents.

Date of hearing: 4th October, 1999.

2000 C L C 995

[Lahore]

Before Ali Nawaz Chowhan, .J

MURID ABBAS ‑‑‑Petitioner

versus

ZAFFAR HUSSAIN ‑‑‑Respondent

Civil Revision No. 147 of 1999, decided on 8th December, 1999.

Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑0. XXXVII, R.3‑‑‑Suit .for recovery on the basis of pronote‑‑‑Leave to defend the suit‑‑‑Trial Court refused such leave to the petitioner ‑‑‑Validity‑‑­ Where counsel for the respondent had no objection for grant of such leave to defend the suit provided the petitioner would furnish a Bank guarantee, order of the Trial Court was set aside‑‑‑Petitioner was directed to furnish such Bank guarantee and the case was remanded to the Trial Court for trial.

Muhammad Nasir v. Muhammad Alam 1992 CLC 1705; Abdul Karim Jaffarani v. United Bank Ltd. and 2 others 1984 SCMR 568 and AIR 1958 SC 321 ref.

Makhdoom Ijaz Hussain Bukhari for Petitioner.

Mian Abbas Ahmad for Respondent.

2000 C L C 1013

[Lahore]

Before Ali Nawaz Chowhan, J

KHUDA BAKHSH‑‑‑Petitioner

versus

BANKING COURT N0.2, MULTAN‑‑‑Respondent

Writ Petition No.6491 of 1999, decided on 9th February, 2000.

(a) Banking Companies (Recovery of Loans, Advances, ‑ Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 9(3)‑‑‑Suit for recovery of Bank loan‑‑‑Modes of service on defendants‑‑‑Purpose‑‑Modes of service mentioned in S.9(3) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, enable service upon defendant with convenient despatch so that banking cases to be tried under the special law, do not get delayed on account of service.

(b) Banking Companies (Recovea!y;of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 10‑‑‑Suit for recovery of Bank loan‑‑‑Leave to defend the suit, grant of‑‑‑Period for filing of application for leave to defend suit‑‑Extension of time‑‑‑Power of Banking Court‑‑‑Scope‑‑‑Where service to defendant has taken place in any of the modes other than publication of citation in newspaper, it becomes incumbent upon defendant to make a petition within period of 21 days from the date of ‑service to Banking Court asking for leave to defend the suit‑‑‑Such petition is made only where defendant demonstrates that a serious and bona fide dispute has been raised by him‑‑‑Where service is not possible through modes otherwise than publication of citation in newspaper, the Banking Court has been authorised to extend time for filing an application for leave to defend upon satisfaction that the defendant did not have knowledge about the proceedings. [p. 1017] B

(c) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 10, proviso‑‑‑Application for leave to defend suit‑‑‑Extension of tithe‑‑‑Object‑‑‑Information from third party after publication ‑‑‑Scope‑‑­Where service had been effected on defendant through Press publication, a concession with respect to limitation in such service has been provided under proviso to S.10 of cranking Companies (Recovery of Loans, Advances, Credits and Finances) Act; 1997‑‑‑Intention behind the concession is that there may be a possibility that the defendant has not read such publication in newspaper and may have come across it through information from‑ third party after the publication of the notice. [p. 1017] C , (d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of‑1997)‑‑‑

‑‑‑‑Ss. 9 & 10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Application for leave to defend suit, dismissal of‑‑‑Failure to file affidavit of third party which provided information to defendant after publication of notice in newspaper‑‑‑Effect‑‑‑Banking Court dismissed application for leave to defend the suit on the ground that the defendant did not produce the person who had informed the defendant about publication of the notice in Press‑‑‑Validity‑‑‑Where Banking Court had any doubt with respect to knowledge of the defendant. the Court could have asked him to furnish proof and that would have enabled the defendant to produce the person concerned‑‑‑Application for leave to defend suit was dismissed by the Court without any proof of service on the defendant‑‑‑While dismissing the application through mechanical process Banking Conrr had caused delay in disposal of case itself and the same wns against the spirit of the special law and the order was perverse ‑‑‑Higb Court, while exercising Constitutional jurisdiction, set aside the order and remanded the case to Banking Court for .hearing the application of the defendant seeking leave to defend. [p. 1017] D

(e) Affidavit‑‑.

‑‑‑‑Application for leave to defend suit, dismissal of‑‑‑Failure to file affidavit

of third party which provided information to defendant after publication o1

notice in newspaper‑‑ ‑Effect. [p. 1017] D '° 4:~"

Mian Mushtaq Ahmad for Petitioner. Mehmood Ashraf for Respondent.

2000 C L C 1018

[Lahore]

Before Muhammad Akhtar Shabbir, J

KAURA and others‑‑‑Petitioners

versus

ALLAH DITTA and others‑‑‑Respondents

Civil Revision No.310‑D of 1998, decided on 23rd December, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XIV, ‑R.1‑‑‑Framing of issues‑‑‑Duty of Court‑‑‑Failure to frame proper issues‑‑‑Effect‑‑‑Trial Court under provisions of O.XIV, R.1, C.P.C. is under obligation to frame issues from factual and legal controversies appearing on the pleadings of the parties alleged or denied by them‑‑‑Where Court fails to frame proper issue and parties are not satisfied, it is the duty of the parties to get proper issues framed. [p. 1026] A

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XIV, R.1 & S. 115‑‑‑Framing of issues‑‑‑Failure to raise objection in Trial Court with regard to the issues not properly framed‑‑‑Raising of such objection at revisional stage‑‑‑Petitioners being dissatisfied with framing of issues by Trial Court, neither applied to the Court for that purpose nor challenged the same in the next higher .forum‑‑‑Such objection was not even raised in memorandum of appeal filed in Lower Appellate Court, against ,judgment and decree of Trial Court‑‑‑Validity‑‑‑Where the petitioner failed to raise any objection qua the issue, in Trial Court or the Lower Appellate Court, such objection could not he raised at revisional stage. [p. 1026] B

Mir Afzal and 2 others v. Muhammad Raza Khan and 13 others 1990 CLC 1617 ref.

2000] Kaura v. Allah Ditta 1019

(Muhammad Akhtar thabbir, J)

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XIV, R. 1‑‑‑Omission to frame issue‑‑‑Effect‑‑‑Mere omission to frame issue by itself was not fatal where substantial justice had been done‑‑­Parties might have been aware of points requiring determination, evidence had been led and the matter had been decided by the Court‑‑‑Decision rendered by‑Trial Court was not illegal in circumstances. [p. 1026] C

Fazal Muhammad Bhatti v. , Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 ref.

(d) Civil Procedure. Code (V of 1908)‑‑‑

‑‑‑‑0. XIV, R. 1‑‑‑Issue not correctly framed‑‑‑Prejudice caused to parties‑‑­Issue framed by Trial Court, keeping in view pleadings of the parties was not happily worded and correctly framed‑‑‑Parties throughout trial of the case were fully cognizant of the issue and evidence was led in respect thereof‑‑­Effect‑‑‑No prejudice had been caused to the parties by not framing the proper issue in circumstances. [p. 1026] D

Mehr Din v. Dr. Bashir Ahmad Khan and 2 others 1985 SCMR 1 and Ahmad Khan v. Malik Fazal Dad 1983 CLC 74 ref.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VII, R. 3‑‑‑Immovable property, description of‑‑‑Scope‑‑‑Where Khata numbers of suit property had been given in plaint, suit could not be dismissed for non‑description of the suit property. [p. 1027] E

(f) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 99 & O. XXXII, R. 3‑‑‑Guardian ad litem, appointment of‑‑‑Object‑‑­Failure to appoint proper person to be guardian of minor‑‑‑Effect‑‑‑Object of appointment of guardian ad litem is that the minor should have proper representation in suit‑‑‑Such failure being an irregularity is covered by S.99, C.P.C. [p. 1028] F '

Kameen Khan and .15 others v. Ghazi Marjan and 9 others 1990 MLD 1865; Nadeem Shahid and 2 others v. Muhammad Sharif and another PLD 1986 Lah. 373 and Muhammad Ismail and others v. Muhammad Sarwar and others 1980 SCMR 254 ref.

(g) Specific Relief Act (I of 1877)‑‑

‑‑‑‑S. 42‑Limitation Act (IX of 1908), Art. 120‑‑‑Inheritance‑‑‑Suit for declaration‑‑‑Limitation‑‑‑Starting point‑‑‑Determination‑‑‑Right of. plaintiff in inheritance of father was a continuous right and under Art. 120, 'Limitation Act, 1908, time for filing suit for declaration was to start when the right to sue accrued to the plaintiff and the same was refused by the defendant‑‑‑No right to sue until there was an accrual of right asserted in the suit and its

infringement or its clear unequivocal threat to infringe that right by defendant against whom the suit was instituted. [p. 1029] G

(h) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42 ‑‑‑ Suit fol declaration‑‑‑Eutty in record of right‑‑‑Nature‑‑‑Every such entry was denial of right of plaintiff‑‑‑Plaintiff had notion to file suit for declaration on every denial of right and every such denial would furnish plaintiff afresh cause of action. [p. 1029] H , Wali and 10 others v. Akbar and 5 others 1995 SCMR 284; Atta Muhammad v. Nasiruddin PLD 1993 Pesh. 127 and Muhammad Yousaf v. Noor Din and others 1993 MLD 763 ref.

(i)' Specific Relief Act (I of 1877)‑‑‑

‑‑ ‑S. 42‑‑‑Inheritance‑‑‑Concurrent finding of fact ‑‑‑Co‑sharer, possession of‑‑‑Plaintiff was deprived of inheritance of her father‑‑‑Both the Courts below concurrently decreed the suit in favour of the plaintiff‑‑‑Contention by defendants was that simple suit for possession should have been filed instead of suit for declaration‑‑‑Validity‑‑=Plaintiff was denied to be a co4arer as she was legal heir of the deceased and was presumed to be in nossession of the suit property alongwith other co‑owners‑‑‑Both the Courts below had concurrently found the plaintiff entitled to 1 /2 share in the property of the deceased‑‑‑Courts below had committed no illegality in the judgments and decrees which were unexceptionable and called for no interference. [pp. 1029, 1030] 1 & J

Bashir Ahmad and others v. Ch. Nawab Din and others 1990 SCMR 1229; Mst. Jannat Bibi v. Sher Muhammad 1988 SCMR 1698; Shehzada Bibi v. Amir Hussain Shah PLD1956 SC 227; Muhammad Hussain and others v. Muhammad Nawaz PLD 1991 Lah. 262; Mst. Fazal Nishan v. Ghulam Qadir and others 1992 SCMR 1773; Lal and others v. Mst. Rehmat Bibi and another PLD 1991 SC 582; Muhammad Ali's case PLD 1994 SC 245; Shaukat Ali v. Sultan Mahmood 1988 SCMR 118; Sahib Noor v. Haji Ahmad 1988 SCMR 1703; A.R. Khan v. B.N. Boga PLD 1987 SC 107; Mst. Sughran Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 4; Mst. Noor Jehan v. Muhammad Rafique and others 1995 CLC 43; Hakim Ali v. Din Muhammad 1994 CLC 879; Nadeem Shahid and 2 others v. Muhammad Sharif and another PLD 1986 Lah. 373; Sharoo v. 'Fatima 1993 CLC 625: Mst. Zainab Bibi v Muhammad Yousaf and 4 others 1995 SCMR 868; Abdul Ghafoor and others v Ivluhammad Shaft and others PLD 1985 SC 407 and Mst. Salabat Bibi and 3 others v. Gul Muhammad and 13 others PI_D 1996 Pesh. 1 ref.

Mian Shamsul Haq Ansari for Petitioners. Sardar Muhammad Rafiq Khan for Respondents

Date of hearing: 5th November, 1999.

2000 C L C 1030 .

[Lahore]

Before Ghulam Mahmood Qureshi, J

ABDUL SATTAR‑‑‑Petitioner

versus

SECRETARY COLONIES, BOARD OF REVENUE, PUNJAB, LAHORE and 2 others‑‑‑Respondents

Writ Petitions Nos. 16737, 17994, 17396, 18825 and 20239 of 1999, heard on 8th February, 2000.

(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑S. 9‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Consolidation of lands‑‑‑Board of Revenue on the one hand issued notification in respect of consolidation proceedings on administrative side while on the other hand plea of petitioners/right‑holders for such consolidation was accepted on judicial side‑‑‑Validity‑‑‑Board of Revenue acted in a dual capacity‑‑‑Consolidation proceedings were controlled on the administrative side whereas matters arising out of such proceedings were dealt with on the judicial side by the Board of Revenue‑‑‑Once the matter had been decided on judicial side, exercise of executive authority to nullify the effect of judicial decision would be improper exercise of authority‑‑­Nullifying effect of judicial decision, even by legislative process, was not an accepted principle‑‑‑Order passed by Board of Revenue on administrative side having no legal sanction at its back was of no legal effect‑‑‑Notification issued by Board of Revenue was set aside.

Chuttan and others v. Sufaid Khan and others 1987 SCMR 503; Sufaid Khan and others v. M.B.R: (Consolidation) and others NLR 1982 Revenue 87 and Nizamuddin Yahya and others v. Additional Chief Land Commissioner, Sindh and others PLD 1987 SC 260 ref.

(b) Administration of justice‑‑‑

‑‑‑‑Revoking of judicial decision by administrative process disapproved.

Nizamuddin Yahya and others v. Additional Chief Land Commissioner, Sindh and others PLD 1987 SC 260 ref.

Malik Noor Muhammad Awen for Petitioner. Nasim Sabir Chaudhry, Addl. A.‑G. for Respondents.

Date of hearing: 8th February, 2000.

2000 C L C 1040

[Lahore]

Before Ch. Ijaz Ahmad, J

SARDAR MUHAMMAD ‑‑‑Petitioner

versus

Ch. MUHAMMAD BASHIR‑‑‑Respondent

Civil Revision No. 1492‑D of 1987, heard on 20th December, 1999.

(a) Malicious prosecution‑‑‑

‑‑‑‑ Suit for damages----Ingredients to file the suit for malicious prosecution were that the plaintiff was prosecuted by the defendant; that the prosecution ended in plaintiff's favour; that the defendant acted without reasonable and probable cause; that the defendant was actuated by malice; that the proceedings had interfered with plaintiff's liberty and had also affected his/her reputation and the plaintiff had suffered damage.

Muhammad Akram's case PLD 1990 SC 28 rel.

(b) Malicious prosecution‑‑‑

‑‑Acquittal in criminal case‑‑‑Effect‑‑‑Acquittal decides only that accused has not been proved guilty of the offences with which he had been charged.

(c) Malicious prosecution‑..

-----Suit for damages-----proof‑‑‑Concurrentfindings of two Courts below-----Question for determination in such cases wasnot whether the plaintiff committed offence or whether the defendant invented offence against the plaintiff, but question was whether the plaintiff had proved that the defendant invented and instigated whole proceedings for prosecution‑‑‑Where both the Courts below had decreed the suit of the plaintiff in violation of the principles of law, such judgments and decrees of both the Courts below were set aside in circumstances.

Muhammad Akram's case PLD 1990 SC 28; PLD 1994 SC 476 and 1999 SCMR 700 ref.

Kanwal Nain's case PLD 1983 SC 53 distinguished.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑(. 115‑‑‑Revisional jurisdiction of High Court, exercise of‑‑‑Concurrent findings of fact by both the Courts below‑‑‑Where decision on facts was based on no evidence or inadmissible evidence or was so perverse that grave ' injustice would result there from and material irregularity was committed, High Court had ample jurisdiction to disturb such findings of fact in circumstances.

Shaukat Nawaz's case 1988 SCMR 851 fol.

(e) Malicious prosecution‑‑­‑‑‑‑ .

Concurrent findings of facts by both the Courts below‑‑‑Magistrate had found charge against the plaintiff to be groundless but no cogent reasons were given as to why the charge was false and vexatious‑‑‑Magistrate was influenced by the act that the defendant failed to produce evidence and as such benefit of doubt was given to the plaintiff for acquittal in criminal case‑‑‑Suit for damages was filed by plaintiff on the basis of malicious prosecution and both the Courts below had decreed the suit‑‑­Validity‑‑‑Judgments of both the Courts below were result of misreading or non‑reading of record and the plaintiff failed to prove all ingredients necessary for malicious prosecution‑‑‑Such judgments of both the Courts below were not sustainable in the eyes of law and the same were set aside.

Muhammad Amin's case PLD 1947 PC 95; PLD1994 SC 291 and PLD 1994 SC 162 ref.

Muhammad Akram's case PLD 1990 SC 28 rel.

Ch. Bashir Hussain Khalid for Petitioner.

Muhammad Adeel Aqil Mirza for Respondent

Date of hearing: 20th December, 1999.

2000 C L C 1053

[Lahore]

Before Malik Muhammad Qayyum, J

Messrs AL‑KHAN CONSTRUCTION COMPANY

(PVT.) LTD. ‑‑‑Petitioner

versus

PAK AMERICAN FERTILIZERS LIMITED, SIKANDARABAD, DISTRICT MIANWALI

and another‑‑‑Respondents

Civil Revision No. 1409 of 1997, decided on 20th March, 2000.

(a) Arbitration Act (X of 1940)‑‑‑

---R g. 41----Arbitration proceedings----Interim injunction, grant of----Encashing of Bank guarantees----Petitioner arranged Bank guarantees in favour of the respondents with regard to mobilization advance and performance of contract‑‑‑Dispute and differences arose between the parties and the matter was referred to arbitrator‑‑‑Petitioner filed application before Trial Court for restraining the respondents from encashing the Bank guarantees ‑‑‑Validity‑‑­Where unconditional guarantees furnished by Banks in respect of mobilisation advance was issued, no temporary injunction could be granted restraining the respondents from encashing the same‑‑‑No special features in the case of the petitioner being present which would justify .the grant of temporary injunction restraining the respondents, revision was dismissed in circumstances.

Messrs National Construction Ltd. v. Aiwan‑e‑lqbal Authority PLD 1994 SC. 311; Messrs Jamia Industries Ltd. v. Pakistan Refinery Limited PLD 1976 Kar. 644; Sirafi Trading Establishment v. Trading Corporation of Pakistan Ltd. 1984 CLC. 381; Attock Industrial Products Ltd. v. Heavy Mechanical Complex (Pvt.) Limited 1999 MLD 1876 and PLD 1996 Kar. 183 ref. '

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 41‑‑‑Interim injunction, grant of‑‑‑Encashing of performance guarantees furnished by contractors‑‑‑No temporary injunction, as a general rule, could be granted, but there were certain exceptions to the rule like fraud or unequitable conduct of the opposite‑party.

Bilal Khawaja, Mian Hamid Farooq and Ahmad Awais for Petitioner.

Maqbool Sadiq and Shakil‑ur‑Rehman for Respondents.

Date of hearing: 4th February, 2000.

2000 C L C 1062

[Lahore]

Before Malik Muhammad Qayyum, J

Messrs ELEGANT FOOTWEAR (PVT.) LTD. ‑‑‑Petitioner

versus

SECRETARY TO GOVERNMENT OE PUNJAB, LOCAL GOVERNMENT DEPARTMENT, LAHORE

and 3 others‑‑‑Respondents

Writ Petition No. 16422 of 1996, decided on 29th February, 2000.

(a) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑Ss. 73, 137 & First Sched.‑‑‑Licence for trade or profession, requirement of‑‑‑Scope‑‑‑Licence is required only in respect of that trade or business which is specified in the First Sched to the Ordinance under the provisions of Punjab Local Government Ordinance, 1979.

(b) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑S. 137‑‑‑Levy of fee on licences‑‑‑Power of Zila Council ‑‑‑Scope‑‑‑Zila Council has been given power under the provisions of 5,137, Punjab Local Government Ordinance, 1979 to levy fee on licences, sanctions and permissions granted by the Council, when it is shown that for running a particular business a licence is required to be taken by some provision of law from Zila Council.

(c) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑S. 137 & First Sched‑‑‑Constitution of Pakistan (1973), Arts. 18 & 199‑­Constitutional petition‑‑‑Levy of fee on licence‑‑‑Demand of licence fee for business not mentioned in First Sched. of Punjab Local Government Ordinance, 1979‑‑‑Petitioner was running a shoe factory and Zila Council demanded licence fee from the petitioner‑‑‑Validity‑‑‑Article 18 of the Constitution had provided guarantee to enter upon any lawful trade or business and such guarantee was subject to proviso that Competent Authority may regulate any trade or profession by a licensing system‑‑‑Punjab Local Government Ordinance, 1979 had nowhere provided that the petitioner was under obligation to obtain any licence to run a shoe factory ‑‑‑Zila Council could neither direct the petitioner to obtain licence for running the factory nor could they demand any licence fee‑‑‑Notice issued by Zila Council demanding the fee was without lawful authority and of no legal effect.

Muhammad Akram Khawaja for Petitioner. Ch. Muhammad Ashraf, A.A. ‑G. for Respondent No. 1. Malik Ghulam Rasool for Respondents Nos.2 to 4.

Date of hearing: 29th February, 2000.

2000 C L C 1067

[Lahore]

Before Malik Muhammad Qayyum, J

NEMAT ALI alias NIAMAT ALI ‑‑‑Petitioner

versus

ABDUL GHAFFAR‑‑‑Respondent

Civil Revision No. 1183 of 1995, heard on 10th March, 2000.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 13‑‑‑Pre‑emption suit‑‑‑ "Talb‑i‑Muwathibat"‑‑‑Failure to make such Talb in same Majlis‑‑‑Effect‑‑‑Pre‑emptor on receiving the information about sale of suit land did not immediately declare that he intended to pre‑empt the sale, instead he went to the vendee and demanded return of the property‑‑­Validity‑‑‑First Talb namely "Talb‑i‑Muawthibat" had to be made immediately on gaining knowledge of the sale under S.13 of Punjab Pre­emption Act, 1991‑‑‑Where there was a delay of four days in making Talb‑i-­Muwathibat the same was fatal to the pre‑emption suit‑‑‑Failure to assert right of pre‑emption at the time when the pre‑emptor gained knowledge, resulted in extinguishment of right of pre‑emption vesting in the pre­emptor ‑‑‑Judgment and decree of Lower Appellate Court, whereby the suit of the petitioner was dismissed, was not interfered with.

Zafar Ali v. Zainul Abidin 1992 SCMR 1886 and Arif Hussain v. Abdul Qayyum Khan 1996 CLC 902 ref.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 13‑‑‑Talb‑i‑Muwathibat‑‑‑Scope‑‑‑Such declaration was to be made before disposal of Majlis in which the pre‑emptor gained knowledge of sale.

Zafar Ali v. Zainul Abidin 1992 SCMR 1886 ref.

G. Fareed Ahmad for Petitioner. PirAnwar Rehman for Respondent.

Date of hearing: 10th March, 2000.

2000 C L C 1070

[Lahore]

Before Malik Muhammad Qayyum, J

HUMAYUN ELAHI SHEIKH ALI ASGHAR

TEXTILE MILLS LTD. and 10 others‑‑‑Petitioners

versus

FEDERATION OF PAKISTAN through

Ministry of Commerce and Trade, Islamabad and another‑‑‑Respondents.

Writ Petition No.560 of 2000, heard on 9th March, 2000.

(a) Natural justice, principle of‑‑‑

‑‑‑‑No action detrimental to the interest of any person can be taken by a statutory functionary except after allowing him an opportunity of being heard which is the minimum requirement of natural justice.

(b) Trade Organizations Ordinance (XLV of 1961)‑‑‑

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition where alternate statutory remedy ‑available ‑‑‑Maintainability‑‑‑Conditions‑‑­Management of affairs of Association‑‑‑Pending election of Chairman of the Association, Managing Committee appointed petitioner to be its convener for managing of the affairs of. the Association‑‑‑Director, Trade Organization annulled the decision of the Managing Committee on the ground that the same was not in accordance with Memorandum and Articles of the Association‑‑‑Contention by the Authority was that since efficacious relief in the form of appeal to Federal Government, under S.15 of Trade Organizations Ordinance, 1961, was available to the petitioners, Constitutional petition was not maintainable‑‑‑Validity‑‑‑Order of the Director, Trade Organization was contrary to the provisions of law as also natural justice‑‑‑Where remedy of appeal appeared to be illusory, it was not necessary for the petitioners .to invoke the alternative remedy provided by law‑‑‑Constitutional , petition was maintainable, in circumstances.

Ali Sibtain Fazli for Petitioner. Kh. Saeed‑uz‑Zafar, Dy. A.G. for Respondents Nos. 1 and 2. Tariq Shamim for Respondent No.3.

Date of hearing: 9th March, 2000.

2000 C L C 1073

[Lahore]

Before Ch. Ijaz Ahmad, J

Ch. MUKHTAR AHMAD‑‑‑Petitioner

versus

GOVERNMENT OF PUNJAB and others‑‑‑Respondents

Writ Petition No.5065 of 1999, heard on 10th June, 1999.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑No body ‑ should be penalized by the act of public functionaries‑‑‑Each and every public functionary was duty bound to act in accordance with law.

PLD 1978 Lah. 912; PLD 1994 Lah. 3; PLD 1975 Lah. 7 and PLD 1995 SC 530 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Notification‑‑‑Notification which purported to impair an existing or vested right, could not operate retrospectively but must have a prospective effect.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 25 & 199‑‑‑Equality of citizens‑‑‑Authority having failed to consider case of petitioner at par with other similarly placed ones, action of Authority was in violation of Art.25 of Constitution of Pakistan (1973)‑‑­Yardstick must be identical in identical cases.

1991 SCMR 1041 ref.

(d) Administration of justice‑

‑‑‑‑ Nobody could be allowed to get benefits of his own misdeeds.

G.M. Malik's case 1996 CLC 1783 ref.

S.M. Masud for Petitioner. Muhammad Nawaz Bhatti, A.A. ‑G. for Respondents.

Date of hearing; 10th June, 1999.

2000 C L C 1077

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

HAMID QAYYUM and 2 others‑‑‑Petitioners

versus

ABDUL MAJEED and 9 others‑‑‑Respondents

Civil Revision No. 102‑D of 1998,decided on 16th November, 1999.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 5, 6 & 13‑‑‑Specific Relief Act (I of 1877), Ss. 12 & 22‑‑‑Pre‑emption suit‑‑‑Maintainability‑‑‑Suit property was transferred by Court on the basis of decree in a suit for specific performance‑‑‑Such suit for specific performance was filed by predecessor of vendees against predecessor of pre‑emptors ‑‑‑Suit property was devolved upon the pre‑emptors who tried to save the same by contesting the suit for specific performance and after they had lost the ease, the decree would be deemed to be one against them for all practical purposes ‑‑‑Pre‑emptors were vendors as the suit property sold was the one which vested in them at the time of execution of sale‑deed‑‑‑Where the Executing Court acted for and on behalf of the pre‑emptors, they would be deemed to be party to the deed of sale‑‑‑Right of pre‑emption under S.5, Punjab Pre‑emption Act, '1991 arose in a sale of immovable property and such right could be conferred by "Shaft Sharik", "Shaft Khalit" and "Shaft Jar" respectively under the provisions of S.6, Punjab Pre‑emption Act, 1991, such right was vested in those persons who were not party to the sale‑‑‑Such sale made by the pre‑emptors was not pre‑emptible at their option and instance, therefore, suit for pre‑emption filed, by pre‑emptors was rightly found to be not maintainable by both, the Courts below.

Hamid Qayyum and 2 others v. Muhammad Azeem and others PLD 1995 SC 381 ref.

Muhammad Nawaz v: Fida Hussaiw and others 1994 CLC 1487 distinguished.

Kh. Saeed‑uz‑Zafar for Petitioners. Sh. Ziaullah for Respondents.

Date of hearing: 28th October, 1999.

2000 C L C 1086

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi

and Mian Saqib Nisar, JJ

MUHAMMAD ANWAR ‑‑‑Appellant

versus

SHAUKAT ALI and another‑‑‑Respondents

Civil Revisions Nos. 1947 and 509 of 1999, heard on 8th December, 1999.

(a) Civil Procedure Code (V of 1908)‑‑

‑‑‑‑0. XXXVII, R.4‑‑‑'Ex parte decree, setting aside of‑‑Non‑signing of application‑‑‑Application for setting aside such decree was dismissed for non­prosecution‑‑‑Application for restoration was dismissed summarily on the ground that the same was not signed by applicant‑‑‑Contention by applicant was that due to sudden attack of Cholera, he was prevented to appear in the Trial Court on the day when the application under O.XXXVII, R.4, C.P.C. was dismissed‑‑‑Validity‑‑‑Non‑signing of the. application was just of procedural irregularity which could not vitiate the proceedings of the Court, nor the same .could .invalidate the institution of the application‑‑‑Such a procedural mistake could be rectified by an order of amendment‑‑‑Court could have asked the applicant to appear in person and sign the application‑‑‑Objection of non‑signing of application could not be given importance if the facts on record had justified the same‑‑‑Where such application was resisted and Trial Court had some reservation, the proper course was to frame issue and allow opportunity of evidence instead of dismissing the same summarily‑‑‑Generous consideration should weigh with the Court in dealing with the application for restoration of cases and every possible effort should be made to decide the cases on merit, rather than rendering decision ex parte‑‑‑Order of Trial Court, dismissing application, suffered from legal infirmities and jurisdictional error and same could not be sustained.

(b) Civil Procedure Code (V of 1908)‑‑

‑‑‑‑(. 51 & O.XXI, R.37‑‑‑Execution of decree‑‑‑Detention in civil prison‑‑­Failure to make inquiry by the Executing Court‑‑‑Effect‑‑‑Executing Court could not straightaway order detention in civil prison without making an inquiry‑‑‑Where Executing Court did not hold inquiry and recorded evidence in terms of O.XXI, R.37, C.P.C. and did not satisfy itself as to the pre­conditions for detaining the judgment‑debtor in prison as contemplated by S.51, C.P.C. and further failed to record reasons justifying such detention, such order passed by the Executing Court was illegal, without jurisdiction and the same was set aside accordingly.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 51‑‑‑Execution, enforcement of‑‑‑Detention in civil prison‑‑‑Such detention could not be ordered unless and until prerequisites of S.51; C.P.C. were proved‑‑‑Prerequisites of S.51, C.P.C. enumerated. Unless and until the prerequisites of section 51 of C.P.C. are proved, detention in the prison cannot be ordered. These pre‑conditions are that the judgment‑debtor should be proved to have made attempts to leave the limits of the Court, to obstruct the decree or execution thereof or had dishonestly transferred the property after the institution of the suit, to avoid the decree or had the means to pay the decree but neglected to do the same. Without satisfying these pre‑conditions, no mechanical order for detention in prison can be passed by the Court.

Mohsin Ali v. National Bank of Pakistan 1987 CLC 1419 ref.

Mrs. Nasira Iqbal for Petitioner. Muhammad Azeem Sheikh for Respondents.

Date of hearing: 8th December, 1999.

2000 C L C 1102

[Lahore]

Before Jawwad S. Khawaja, J

EMPLOYEES WELFARE ASSOCIATION through President and General Secretary, Employees Welfare Association Board of Intermediate and Secondary Education, Multan and 3 others‑‑‑Petitioners

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MULTAN

through Chairman and 2 others‑‑‑Respondents Writ Petition No.512 of 1998, heard

on 11th November, 1999.

(a) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)‑‑‑

‑‑‑‑S. 12‑‑‑Control of Government over use of funds by Board ‑‑‑Scope‑‑­Government is only a Controlling Authority and in such capacity can only exercise such limited functions which are delegated to it under S.12, Punjab Boards of Intermediate and Secondary Education Act, 1976‑‑‑Such functions do not include the authority to issue mandatory, directives to control the use of funds by Board

(b) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)‑‑‑

‑‑‑‑S. 12‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Board stopped paying overtime to its employees on the basis of a letter issued by Provincial Government, wherein under the austerity measures no honorariums were to be paid to the Government employees‑‑‑Contention raised by the employees was that the amount, though termed as "honourarium", was paid by the Board to its employees‑ as compensation for work done by such employees beyond normal working hours and beyond the normal call of duty‑‑‑Validity‑‑‑Word "honourarium" mentioned in the letter of Provincial Government did not govern such amount so received by the employees of the Board and the directive of the Government would be beyond the powers vested in the Government as Controlling Authority under the provisions of Punjab Boards of Intermediate and Secondary Education Act, 1976‑‑‑Letters of the Provincial Government were inoperative and without lawful authority in respect of the rights of the employees of the Education Board.

Mirza Manzoor Ahmad for Petitioners .Haji Muhammad Aslam Malik for Respondent No. 1. Iftikhar‑ur‑Rehman, A.A.‑G. for Respondents Nos.2 and 3

Date of hearing: 11th November, 1999.

2000 C L C 1201

[Lahore], Before Malik Muhammad Qayyum and Ghulam Mahmood Qureshi, JJ

GHAZALA ARIF‑‑‑Appellant

versus

UNION BANK LTD. (NOW EMIRATES BANK

INTERNATIONAL), LAHORE‑‑ ‑Respondent

Regular First Appeal No.352 of 1997, decided on 9th February, 2000.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance (XXV of 1997)‑‑‑

‑‑‑‑Ss. 10 & 21‑‑‑Suit for recovery of loan‑‑‑Leave to appear and defend suit‑‑‑Loan was sanctioned to the company and in order to secure loan, defendant had guaranteed repayment of loan by executing a letter of guarantee‑‑‑Company having failed to pay loan, Bank filed suit for recovery of loan‑‑‑Defendant filed application to appear and defend suit wherein it was claimed that defendant was a Director of company in name only; had resigned from the company and, had surrendered shares held by her‑‑­Defendant had also denied her signatures on letter of guarantee and alleged that said document was forged and fabricated one‑‑‑Application of defendant was dismissed and suit was decreed‑‑‑Validity‑‑‑Evidence on record had proved that account was opened by the defendant alongwith others and that letter of guarantee was executed and signed by the defendant‑‑‑Bare denial of signatures on letter of guarantee without any prima facie proof, could not furnish a ground for grant of leave to appear and defend suit‑‑‑Trial Court, in circumstances, was justified in refusing to grant leave to appear and defend suit to defendant/applicant.

American Express Bank Ltd. v. Adamjee Industries Ltd. 1995 CLC 880 ref.

Danishwar Malik for Appellant. Malik M. Rashid Awan for Respondent.

Date of hearing: 9th February, 2000.

2000 C L C 1204

[Lahore]

Before Syed Zahid Hussain, J

WALIDAD‑‑‑Appellant

versus

SHAH DIN and another‑‑‑Respondents

Regular Second Appeal No.845 of 1976, heard on 21st December, 1999

(a) Administration of justice‑‑‑

‑‑‑‑ Statutory functionaries are required to apply independent mind before passing any adverse order against any person‑‑‑Such functionaries are to pass a speaking order and not to act merely on a note/report submitted before them.

Ghulam Mohy‑ud‑Din v. Chief Settlement Commissioner (Pakistan), Lahore and others PLD 1964 SC 829 ref.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 24‑‑‑Cancellation of allotment of land without notice‑‑‑Collector cancelled land allotted to plaintiff merely on the basis of a report‑‑‑No notice was given to the plaintiff‑‑‑Both the Courts concurrently decreed the suit filed against such cancellation on the ground that no notice was given to plaintiff before taking action against him‑‑‑Contention of the defendant was that under the provisions of S.24, Colonization of Government Lands (Punjab) Act, 1912, notice was not required if the allottee had contravened the conditions of allotment‑‑‑Validity‑‑‑Where no notice was given by Collector before cancellation or resumption of the suit land from the plaintiff, notice was necessary under the 'law for such an action‑‑‑Judgments and decrees of both the Courts below were justified in circumstances.

Fazal Dad and 2 others v. Member, Board of Revenue (Colonies), West Pakistan and another PLD 1977 Lah. 164; Muhammad Rashid v. Collector and others PLD 1978 Lah. 1370; Kaley Khan and others v: Member, Board of Revenue 1989 MLD 2187; Fateh Muhammad v. Mushtaq Ahmad and 9 others 1981 SCMR 1061; Nura and others v. Mst. Sahib Bibi and others 1980 CLC 1617; Rehmatullah through his Legal Heir and another v. Province of Sindh through the Secretary, Government of Sindh Revenue Department, Karachi and 5 others 1990 MLD 2353; Shah Muhammad v. Administrator 1993 CLC 902; Province of Punjab through Collector Jhang, District Jhang v. Lal Khan. 1993 CLC 2444; Province of Punjab through Deputy Commissioner/Collector, Sargodha, District Sargodha v. Muhammad Akram PLD 1993 Lah. 114; Bahadur v. Collector, Jhang 1984 CLC 2955; Province of West Pakistan through Collector, Layallpur and another v. Amir Begum and 4 others 1993 MLD 885 and Messrs Siddiq Textiles Ltd. v: Board of Revenue, Punjab and others 1985 SCMR 887 ref.

Muhammad Aslam Tabassum for Appellant Lal Khan Baloch for Respondents.

Date of hearing: 26th November, 1999

2000 C L C 1208

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

ZAFAR ULLAH‑‑‑Petitioner

versus

Mst. RAZIA BIBI and others‑‑‑Respondents

Writ Petition No.5049 of 2000, decided on 28th March, 2000.

(a) West Pakistan Family Courts AM (XXXV of 1964)‑‑‑

‑‑‑‑S. 17‑‑‑Bar placed on application of C.P.C. and Evidence Act, 1872‑‑­Object‑‑‑Such bar is imposed for expeditious settlement and disposal of disputes relating to family affairs‑‑‑Family Court, however, has inherent powers to pass orders to avoid multiplicity of cases between the parties.

Ishrat Yar Khan v. S.C.J., Mardan and others PLD 1982 Pesh. 151 ref.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for maintenance‑‑‑Concurrent findings of fact ‑‑‑Effect‑‑­Matter was taken by the Courts below twice‑‑‑No legal infirmity was found in .the concurrent findings of fact arrived at by the Courts below‑‑­Constitutional petition was dismissed in limine.

Muhammad Younas Uppal for Petitioner.

2000 C L C 1210

[Lahore]

Before Syed Zahid Hussain, J

Mian SHER ALAM, ADVOCATE‑‑‑Petitioner

versus

DEPUTY COMMISSIONER, GUJRAT

and 7 others‑‑‑Respondents

Writ Petition No.23788 of 1998, heard on 8th October, 1999.

(a) Punjab Pre‑emption Act (IX of 1997)‑‑‑

‑‑‑‑Ss. 13 & 30‑‑‑Pre‑emption suit‑‑‑Bar of limitation‑‑‑Dispute with regard to date of attestation of mutation of suit land ‑‑‑Vendee, during the pendency of the suit, filed application before the Revenue Authorities to hold inquiry as to the correct date of attestation of the mutation‑‑‑Validity‑‑‑Where the suit was pending with the Civil Court, question as to whether the suit filed by the pre‑emptor was barred by time or not would be decided on the basis of material produced before the Civil Court in accordance with law‑‑­Proceedings before Revenue Authorities were not desirable or warranted‑‑­Assumption of jurisdiction in the matter by the Revenue Authorities was illegal and without jurisdiction.

Sher Zaman v. Mst. Nawab Khatoon and 7 others 1998 SCMR 133; Muhammad Safdar Ali Iqbal v. Sher Muhammad and 2 others 1980 CLC 520 and Sher Afgan v. Sheikh Anjum Iqbal 199,' MLD 98 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Quashing of proceedings‑‑­Scope‑‑‑Where the assumption of jurisdiction is without lawful authority and is apparent on the face of the proceedings, the same can be quashed in Constitutional jurisdiction.

Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 ref.

Petitioner in person. Muhammad Hanif Niazi for Respondents Nos.4 to 7.

Date of hearing: 8th October, 1999.

2000CLC1213

[Lahore]

Before Syed Zahid Hussain, J

DOST MUHAMMAD and others‑‑‑Appellants ,‑

versus

MUHAMMAD RAMZAN and others‑‑‑Respondents

Regular Second Appeal No.325 of 1979, heard on 18th November, 1999.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 15(c)‑‑‑Superior right of purchase ‑‑‑Pre‑emptor and vendee were at par so far their relationship with the vendor was concerned regarding the suit property‑‑‑Both the Courts below concurrently decreed the suit on the finding that vendee in addition had the inferior qualification of being owner in the estate ‑‑‑Validity‑‑‑Pre‑emptor in order to succeed in a suit for pre­emption had to prove that he was vested with a superior right of purchase‑‑­Additional qualifications of inferior degree were not relevant‑‑‑Both the Courts below misdirected themselves in granting a decree for pre‑emption in favour of the pre‑emptor on his plea of being an owner in the estate when both the parties were at par in stiperior qualification mentioned in S.15(b), clause thirdly in the Punjab Pre‑emption Act, 1913 which related to the relationship with the vendor‑‑‑Concurrent judgments and decrees of both the Courts were set aside in circumstances.

Ragha Ram and another v. Dewa Singh and others AIR 1926 Lah 300 and Asmatullah v. Muhammad Umar Khan and another AIR 1943 Pesh 75 ref.

Khan Muhammad Bajwa for Appellants G.H. Khan for Respondents.

Date of hearing: 18th November, 1999.

2000 C L C 1216

[Lahore]

Before Syed Zahid Hussain, .l

Messrs SAPRA SCALE MANUFACTURERS

through Proprietor and another‑‑‑Petitioners

versus

NATIONAL BANK OF PAKISTAN‑‑‑Respondent

Writ Petition No.3729 of 1981, heard on 23rd December, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 48‑‑‑Limitation for filing of execution application‑‑‑Money decree was passed against judgment‑debtor prior to the amendment in S.48, C.P.C.‑‑­Decree‑holder filed application for execution of decree after six years‑‑­Objection was raised by judgment‑debtor to the effect that after the amendment in S.48, C.P.C. such application was time‑barred‑‑‑Both the Courts below had dismissed such objection of the judgment‑debtor‑‑­Validity ‑‑‑Amendment was not retrospective in operation‑‑‑Execution application filed by the decree‑holder being within limitation under the unamended law which provided period of 12 years both the Courts below had rightly dismissed the objection of the judgment‑debtor.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; National Bank of Pakistan v. Messrs Hyderabad Tando Fazul Bus Service 1980 CLC 1146; National Bank of Pakistan v. Syed Ishrat Ali 1984 CLC 1907; Imam Bakhsh and 5 others v. Allah Ditta and 3 others 1988 CLC 1597; Mst. Tayyaba Begum v. Gul Rehman and 2 others 1988 CLC 2370 and Messrs Mian Brothers and 3 others v. The Additional District and Sessions Judge, Multan and others PLD 1985 Lah. 562 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Competency‑‑‑Failure to make the authority as party against whose order writ was to be passed‑‑‑Effect‑‑‑Where such authority had not been cited as party to the petition, petition would not be competent for such reason.

Sh. Khalil‑ur‑Rehman for Petitioners. Sardar Mashkoor Ahmad and Majid Khan for Respondents.

Date of hearing: 23rd December, 1999.

2000 C L C 1219

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

HAROON RASHID ‑‑‑Petitioner

versus

MEMBER, BOARD OF REVENUE and 5 others‑‑‑Respondents

Writ Petition No. 143 of 1980, heard on 24th March, 2000.

(a) Punjab Land Reforms Rules, 1972‑‑‑

‑‑‑‑(. 8‑‑‑Filing of application or written statement‑‑‑Format‑‑‑Application or written statement has to be drawn up and verified in the manner provided for drawing up and verification of a plaint or written statement in C.P.C. in respect of civil suits under R.8 of Punjab Land Reforms Rules, 1972.

(b) Punjab Land Reforms Rules, 1972

‑‑‑‑R. 12(2)‑‑‑Review. appeal against‑‑‑Scope‑‑‑No appeal under S.12(2) Punjab Land Reforms Rules, 1972, lies from an order refusing to review or confirming on review a previous order.

(c) Land Reforms Regulations, 1972 (M.L.R. 115)‑‑‑

‑‑‑‑Para. 24(3)‑‑‑‑Punjab Land Reforms Rules, 1972, R.8‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Unverified application‑‑‑Petition filed before District Collector was violative of R.8 of Land Reforms Rules, 1972‑‑‑Effect‑‑‑Such petition was taken up by Revenue Courts on executive side‑‑‑Where the petition was given to the Deputy Land Commissioner in view of S.24(3) of Land Reforms Regulation, 1972 and was not duly verified as provided by R.8 of Land Reforms Rules, 1972, the same was liable to be dismissed on its face and was not entertainable by Deputy Commissioner who otherwise dealt the same on revenue side.

Ilam Din v. Muhammad Din PLD 1964 SC 842; Zaffar Ullah Khan and others v. Abdur Rehman and others 1985 MLD 1594; Faiz Ali represented by Mst. Nur Jan and another v. Mst. Rafia Jan and 2 others PLD 1956 Lah. 94; Rehmat Ullah and others v. Muhammad Ismail and others PLD 1958 (W.P.) (Rev.) 77; Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173; Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others 1970 SCMR 323; Hashmat Ali and 2 others v. Province of the Punjab 1994 SCMR 30; Ibrahim v. Rajji PLD 1956 (W.P.) Lah. 609 and Rehmat Ali v. The Revenue Board, West Pakistan, Lahore 1973 SCMR 342 ref.

Ch. Shakeel‑ur‑Rehman for Petitioner. Rehan Bashir for Respondents.

Dates of hearing: 21st and 24th March, 2000. ‑

JUDGMENT

2000 C L C 1226

[Lahore]

Before Malik Muhammad Qayyum, J

MUHAMMAD MANSHA‑‑‑Petitioner

versus

ABDUL KARIM and another‑‑‑Respondents

Writ Petition No.9080 of 1996, heard on 11th April, 2(100.

Civil Procedure‑Code (V of 1908)‑‑‑

‑‑‑‑0. II, R.2‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Suit for declaration to the effect that plaintiff was entitled to get the sale‑deed registered in his f‑our on the basis of an agreement of sale‑‑‑Plaintiff, however, during the pendency of such suit filed another suit for specific performance of the same agreement and also prayed for permanent injunction‑‑‑Contention of the defendant was that subsequent suit was barred by 0.11, R.2, C.P.C.‑‑­Validity‑‑‑Only competent suit filed by the plaintiff being the suit for specific performance and earlier suit for declaration being not competent in law, plaintiff was not barren from filing the subsequent suit claiming an appropriate relief.

Ghulam Nabi and others v. Seth Muhammad Yaqoob PLD 1983 SC 344 ref.

M.M. Alain for Petitioner.

Mian Muhammad Ilyas for Respondents.

Date of hearing: 11th April, 2000.

2000 C L C 1236

[Lahore]

Before Maulvi Anwarul Haq, 3, GHULAM FARID and 2 others‑‑‑Petitioner

versus

MUHAMMAD NAWAZ and 12 others‑‑‑Respondents

Civil Revisions Nos. 1093‑D of 1996 and 341‑D 1998, heard on 3rd March, 2000.

West Pakistan Muslim Personal Law (Shariat Application) Act (V of 1962)‑

‑‑‑‑S. 2‑A‑‑‑Devolution of land‑‑‑Last Muslim male owner died in 1923 and his land was mutated in favour of his widow‑‑‑Said widow having remarried, land of deceased was mutated in favour of daughters of deceased male owner‑‑‑‑Daughters of deceased male owner having married, succession to estate of deceased male owner opened and his land was mutated in favour of brothers of the deceased‑‑‑Courts below had concurrently found devolution of suit land from year 1923 onward‑‑‑Petitioners, who were sons and daughters of daughters of deceased male owner who claimed to inherit estate of deceased male owner, had not been able to point out any misreading or non‑reading of evidence on record by Courts below‑‑‑In presence of brothers of deceased Muslim male owner of land, petitioners who were children of daughters of deceased male owner could not inherit anything in suit land which constituted estate of brothers of deceased who had acquired inheritance from a Muslim before 15‑3‑1948‑‑‑Concurrent judgment of Courts below based on law and fact could not be interfered with.

Malik Faqir Muhammad and others v. Chaudhry Ghulam Nabi and others 1994 CLC 1991 ref.

Malik M. Latif Khokhar for Petitioner.

Kanwar Akhtar Ali for Respondents.

Dates of hearing: 24th February and 3rd March, 2000.

2000 C L C 1243

[Lahore]

Before Jawwad S. Khawaja, J

AMANAT ALI and 2 others‑‑‑Petitioners

versus

NAZIR AHMAD‑‑‑Respondent

Civil Revision No.718 of 1999, heard on 24th February, 2000.

Qanun‑e‑Shahadat (10 of 1984)‑‑

‑‑‑‑Arts. 74, 76 & 77‑‑‑Revision‑‑‑Secondary evidence‑‑‑Production of‑‑‑No positive proof was available on record to establish existence of two documents in question‑‑‑Order of Trial Court allowing production of photo copies of said documents was premature as party producing photo copies should prove existence of said documents‑‑‑Once existence of documents had been established, respondents who intended to produce photo copies of said documents, could be allowed to produce documents by way of secondary evidence subject to compliance with provisions of

Arts.76 & 77 of Qanun‑e­Shahadat, 1984.

Sardar Bakhsh v. Mst. Maqsood Bibi PLD 1994 Lah. 452 ref.

Irfan Ahmad Khan for:Petitioner. Arshad Ali Chohan for Respondent.

Date of hearing: 24th February, 2000

2000 C L C 1249

[Lahore]

Before Muhammad Akhtar Shabbir, J

Malik MUHAMMAD ASLAM and

3 others‑‑‑Petitioners

versus

ADMINISTRATOR, MARKET COMMITTEE, BUREWALA, DISTRICT VEHARI‑‑‑Respondent

Writ Petition No.9691 of 1998, heard on 30th July, 1999.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Contractual obligation‑‑‑Subject‑matter of Constitutional petition being "contractual obligation" in case of breach of agreement arrived at between the parties, Constitutional jurisdiction of High Court, could not be invoked.

Shamshad Ali Khan v. Commissioner, Lahore and others 1969 SCMR 122 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Factual controversy could not be resolved in Constitutional jurisdiction of High Court.

Abdul Rasheed Sheikh for Petitioners. Muhammad Naveed Hashmi for Respondent.

Date of hearing: 30th July, 1999.

2000 C L C 1255

[Lahore]

Before Ch. Ijaz Ahmad, J

GHULAM MUHAMMAD and 8 others‑‑‑Petitioners

versus

MUHAMMAD HANIF and another‑‑‑Respondents

Civil Revision No. 1920 of 1999, heard on 20th March, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr1l, 2 & 5.115‑‑‑Suit for declaration and permanent injunction‑‑‑Interim injunction, grant of ‑‑‑Revisional jurisdiction, exercise of‑‑‑Interim injunction granted to plaintiff/petitioner having not been confirmed by Trial Court petitioner filed appeal against judgment of Trial Court which was dismissed by Appellate Court‑‑‑Both Courts below had given presumption of truth to the mutation regarding property in dispute which finding of Courts below was against fact and law‑‑‑Courts below having erred in law while exercising their discretion, High Court in exercise of revisional jurisdiction remanded case to decide afresh with direction that parties would maintain status quo qua possession and respondents were restrained to alienate property till decision of case.

Sardar Wali Muhammad v. Sardar Muhammad Iqbal Moaakal PLD 1975 Lah. 492; Mrs. Parveen Begum v. Raj Muhammad Sarwar Khan PLD 1956 Kar. 521; Mst. Aisha Bibi's case PLD 1957 Lah. 371; Muhammad Asmat Ullah's case 1998 CLC 295; Miss Parveen Begum's case 1992 CLC 1288 and Mst. Aisha Bibi v. Muhammad AIR 1926 PC 100 ref.

Sh. Naveed Shehryar for Petitioner. Mian Javed Iqbal Arain for Respondents

Date of hearing: 20th March, 2000.

2000 C L C 1258

[Lahore]

Before Ghulam Mahmood Qureshi, J

MUHAMMAD ARSHAD‑‑‑Petitioner

versus

ASSISTANT COMMISSIONER/CONTROLLING

AUTHORITY OF UNION COUNCILS, BAHAWALWPUR

and 2 others‑‑‑Respondents

Writ Petition No.3831 of 1998, decided on 28th March, 2000.

Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑5. 5(2)‑‑‑West Pakistan Rules under Muslim Family Laws Ordinance, 1961, R.7‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑.‑‑Grant of licence to Nikah Registrar‑‑‑Cancellation‑‑‑Authority, after thorough inquiry appointed petitioner as Nikah Registrar of the area concerned and granted him licence in that respect‑‑‑Authority only after 13 days, cancelled the licence granted to petitioner without any reason and without recording any finding about contravention of any condition of licence on part of petitioner‑‑‑Licence of Nikah Registrar granted to the petitioner was permanent and could be revoked or cancelled only for contravention of any of conditions of licence as provided under R.7(3), West Pakistan Rules under Muslim Family Laws Ordinance, 1961‑‑‑In absence of any finding about contravention of any of the conditions of licence, order cancelling licence granted to petitioner, passed without hearing the petitioner was set aside by High Court being illegal and passed without lawful authority.

Malik Muhammad Aslarn for Petitioner.

Syed Saleem‑ud‑Din Aftab for Respondents.

2000 C L C 1264

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD IQBAL ‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE and 2 others‑‑‑Respondents

Writ Petition No.2843 of 2000, decided on 28th March, 2000

(a) Guardians and Wards Act (VII[[ of 1890)‑‑‑

‑‑‑‑S. 25‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Custody of minor‑‑‑Petitioner had contracted second marriage with a lady who after giving birth to a daughter had died and was living with her maternal grandmother‑‑‑Petitioner after death of his said wife had contracted another marriage and children were born from that wife‑‑‑Welfare of minor whose mother died after giving birth‑‑‑Maternal grandmother of minor who had filed application for custody, of minor girl of aged eight years, had preference to retain custody of minor‑‑‑Welfare of minor was that being woman, grandmother would take care of needs of her grand‑daughter in better way than petitioner especially when from date of birth minor had been in custody of her maternal grandmother‑‑‑In absence of mother of minor, mother's mother was entitled to custody of female child unless she was found disentitled for custody due to some reasons recognised by Qur'an and Sunnah‑‑‑Lap of maternal grandmother was better for a minor girl than her step‑mother, particularly who had her own children.

(b) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑S. 25‑‑‑Constitution of Pakistan (19731 Art. 199‑‑‑Constitutional petition‑‑‑Custody of minor‑‑Both Courts below after taking into consideration evidence on record, had concluded that welfare of minor girl aged eight years was that her custody be given to her maternal grandmother‑‑‑Findings of Courts below on question of fact and law based on proper appreciation of oral as well as documentary evidence, could not be upset or substituted by High Court in exercise of Constitutional jurisdiction‑‑‑Finding recorded by two Courts below on question of fact could not be upset merely on the ground that another view of evidence was possible‑‑‑Father having not been able to point out any illegality, jurisdictional defect or misreading and non‑reading of evidence of Courts below, findings of Courts below, would not be amenable to interference in exercise of Constitutional jurisdiction of High Court.

Sardar Noor Akbar Khan for Petitioner.

2000 C L C 1267

[Lahore]

Before Bashir A. Mujahid, 'J

MUHAMMAD RAMZAN and 5 others‑‑‑Petitioners

versus

ABDUL AZIZ and another‑‑‑Respondents

Writ Petition No.311 of 1986, decided on 16th February, 2000.

(a) Civil Procedure Code (V.of 1908)‑‑‑

‑‑‑‑S. 2(11), 0.1, R.10 & O.XXII, R.2‑‑‑Impleading of legal representatives of deceased plaintiff‑‑‑Legal representative who could be impleaded as party after death of plaintiff would be a person who had some interest in estate of the deceased‑‑‑Such person could be a legal heir in someone else interested in maintaining his claim.

Malik Kasim Ahmad v. Malik Rasool Bakhsh and another PLD 1973 Lah 655; Riaz and others v. Razi Muhammad 1982 SCMR 741; PLD 1975 Lah. 1205 and Muhammad Aslam v. Wazir Muhammad PLD 1985 SC 46 ref.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 9‑‑‑Civil Procedure Code (V of 1908), S.2(11) & 0.1, R.10‑‑­Dispossession from property without due course of law‑‑‑Suit for restoration of possession‑‑‑Impleading of legal representative of deceased plaintiff‑‑­Deceased plaintiff had lost his claim over property in dispute up to level of Supreme Court‑‑‑Plaintiff who himself had lost his claim or interest in suit property,, his legal representatives had nothing to inherent in the suit property--‑In absence of any legal right in suit property, legal representatives of such plaintiff could not be allowed to proceed with suit merely on ground that their predecessor‑in‑interest/plaintiff was dispossessed without his consent‑‑‑Such legal representatives could not claim for restoration of possession of property in question in circumstances.

Ch. Habibullah Nahang for Petitioners. Rana Muhammad Aslam Javaid for Respondents.

Date of hearing: 8th February, 2000.

2000 C L C 1272

[Lahore]

Before Muhammad Akhtar Shabbir, J

MAQSOOD AHMED ‑‑‑Petitioner

versus

MUHAMMAD HUSSAIN ‑‑‑Respondent

Civil Revision No.454 of 1989, decided on 15th March, 2000

(a) Civil Procedure Code (V of 1908)‑

‑‑‑‑0. XLI, R. 27‑‑‑Additional evidence‑‑‑Production of‑‑‑Additional evidence could be produced in appeal, firstly if party had applied to Trial Court for production of additional evidence and Trial Court had refused to admit same and secondly that Appellate Court required or deemed necessary to enable it to pronounce judgment.

Ghulam Muhammad v. Muhammad Aslam PLD 1993 SC 336; Muhammad Ashiq and others v. Taj Bibi 1994 CLC 1585; Province of Balochistan v. Haji Muhammad Hassan 1988 CLC 1583; Mst. Fazal Jan v. Roshan Din PLD 1992 SC 811; Zar Wali Shah v. Yusuf Ali Shah and 9 others 1992 SCMR 1778; Bashir Ahmad Siddiqui v. Ahmad‑ul‑Haq Siddiqui 1985 SCMR 1232; Fazal Hussain v. Nawab Din 1990 CLC 1446 and Ghulam Hussain Arshad 1990 CLC 1819 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, R. 27‑‑‑Additional evidence‑‑‑Production of‑‑‑Where important evidence having a material bearing on merits of case was subsequently discovered, three courses were open to party in litigation, firstly he could apply for admission of fresh material as additional evidence before judgment was pronounced; secondly could apply for a review of judgment after it had been pronounced and thirdly could appeal from that judgment.

Secretary to the Government of West Pakistan, Communication and Works Department v. Gulzar Muhammad PLD 1969 SC 60 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, R. 27‑‑‑Additional evidence‑‑‑Production of=‑‑Provisions of O.XLI, R.27, C.P.C. are not meant to provide opportunity to a party to fill up lacuna left by the party in evidence before Trial Court‑‑‑Additional evidence under said provision of law could be allowed to be recorded if Appellate Court itself so required‑‑‑Additional evidence could not be allowed to enable a party to patch up weaker part or to enable ,it to raise a new point‑‑‑Additional evidence could be allowed only if it was required by Court on basis of appreciation of evidence already on record.

Bashir Ahmed v. Ahmadul Haq Siddiqui 1985 SCMR 1232; Ghulam Hussain Arshad and another v. Allah Ditta and others 1990 CLC 1819; Riazuddin v. Gul Khan Ahmed Qureshi 1996 CLC 1003 and Mst. Fazal Jan v. Roshan Din PLD 1992 SC 811 ref.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, R. 27 & S. 115‑‑‑Additional evidence, production of‑­Revision‑‑‑Petitioner seeking production of additional evidence in appeal neither had applied to the Trial Court for production of same nor Court had required said documents to come to a correct conclusion of case‑‑‑Evidence produced by parties already on record, was sufficient to lead Court for proper decision of case‑‑‑Order passed by First Appellate Court in disallowing application of petitioner for production of additional evidence was not suffering from illegalities or infirmities calling for interference of High Court in revision.

Malik Javed Akhtar Wains for Petitioner. Ch. Saghir Ahmad for Respondent.

Date of hearing: 7th March, 2000.

2000 C L C 1290

[Lahore]

Before Muhammad Akhtar Shabbir

and Nasim Sikandar, JJ

Mst. KHALIDA BEGUM and 2 others‑‑‑Appellants

versus

Mst. YASMEEN and 4 others‑‑‑Respondents

First Rent Appeal No.95 of 1997, heard on 27th March, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VII, R.10‑‑‑Return of plaint or appeal‑‑‑Returning of plaint or appeal was not final disposal of the matter, but it would be heard and decided by Court competent to hear the same‑‑‑Effect of order, for return of plaint or appeal passed under O VII, R.10, C.P.C. was to ensure proper adjudication of plaintiff's or appellant's claim‑‑‑Order returning plaint or appeal under O. VII, R.10, C. P. C. being not a decree, no appeal would lie against order returning plaint or appeal for presentation in proper Court‑‑‑Plaintiff or appellant had to file old plaint or appeal in the proper Court.

Mst. Hawabi and 6 others v. Abdul Shakoor and 8 others PLD 1970 Kar. 367; Sardraz Khan and 36 others v. Amir Ullah Khan and 34 others PLD 1995 Pesh. 86; Muhammad . Nawaz Khan v. Mst. Farrah Naz PLD 1999 Lah. 238; Sherin and 4 others v: Fazal Muhammad and 4 others 1995 SCMR 584; P.M. Amer v. Qabool Muhammad Shah and 4 others 1999 SCMR 1049 and Hari Chand v. Madan Lal and others AIR 1930 Lah. 832 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VII, R. 10‑‑‑Return of appeal to be filed in proper Court‑‑‑Appeal was returned to appellant by Appellate Court for filing the same in High Court which was the proper Court wherein the appeal could be filed‑‑‑Appellants retained memorandum of appeal with them and did not present in the High Court‑‑‑Memorandum of appeal was a public document and part of record of Court was not a private property ‑‑Appellants were under obligation to present the memo‑ of appeal to High Court as it was‑‑‑Appellants neither could file a fresh or amended appeal in proper Court.

(c) Civil Procedure Code (N of 1908)‑‑‑

10‑‑‑Return of appeal‑ Delay to filing before proper Court-----Condonation---Court returned memo. of appeal for‑ its. presentation in High Court which was the proper Court to hear appeal‑‑‑Incumbent on appellants to present memo. of appeal in High Court on the very next day of its return, but appellants retained same with them without any plausible reason‑‑‑Delay, of filing appeal in High Court could not be condoned as appellants were themselves responsible for said delay and could not get benefit of wrong advice.

Raja. Karamat Ullah v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892; Ghulam Ali v. Akbar alias Akoor and another PLD 1991 SC 957. Abdul Ghani v. Mst. Musarrat Rehana 1985 CLC 2529 and Government of Pakistan v. Rafi Associates Ltd. 1985 CLC 2234 ref.

Ch. Ayyaz Muhammad Khan for Appellants. Muhammad Hussain Jahania for Respondents.

Date of hearing: 27th March, 2000. ' . .

2000 C L C 1296 _

[Lahore]

Before Muhammad Akhtar Shabbir, J

Chaudhry MUHAMMAD ISMAIL ‑‑‑Petitioner

versus'

DEPUTY COMMISSIONER/DISTRICT COLLECTOR, MUZAFFARGARH and another‑‑‑Respondents

Writ Petition No. 1429 of 1989, heard on 28th January, 2000.

Punjab Agricultural Produce Markets Ordinance (XXHI of 1978)‑‑‑

‑‑‑Ss. 2(b), 4(3), 19 & 34(1)(3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Levy of market fee and imposition of penalty‑‑‑Authority demanded from petitioner, who was a shopkeeper, licence and market fee and on his failure to pay the amount within specified period, Authority decided to recover said amount as arrears of land revenue with five times penalty‑‑‑Petitioner had denied to be a dealer in agricultural produce contending that he had not been doing any such business in the shop‑‑‑Authorities had not produced on record any evidence showing petitioner to be dealer in agricultural produce in accordance with provisions of S.2(b) of Punjab Agricultural Produce Markets Ordinance, 1978----Effect‑‑‑Ingredients which must exist for the purpose of levying market fee were that commodity must be an agricultural produce; it must be bought or sold by licensee; it must be bought or sold in notified market areas; fee would be leviable only on parties to a transaction; transaction should be such in which delivery actually had taken place; and fee would become leviable as soon as an agricultural produce was bought or sold by a licensee‑‑‑If any of such ingredients was missing, no fee was leviable by the Authority‑‑‑No proof was available on record about the parties to transaction showing that the transaction was such wherein delivery had taken place‑‑‑Authority had failed to prove the petitioner as dealer in sale or purchase of agricultural produce nor they had been able to establish as to what kind of agricultural produce and how much quantity of said produce was subject‑matter of transaction‑‑‑Order for recovery of market fee and imposing penalty on petitioner passed by Authority without affording opportunity of hearing to petitioner, was declared to be illegal by High Court in circumstances.

Sunshine Jute Mills v. Market Committee, Sheikhupura 1988 CLC 2280 ref.

Petitioner in person.

Mian Mushtaq Ahmed for Respondent No.2.

Date of hearing: 28th January, 2000.

2000 C L C 1306

[Lahore]

Before Ch. Ijaz Ahmad, J

UTILITY STORES CORPORATION OF PAKISTAN

(PVT.) LTD., LAHORE REGION, LAHORE

through Regional Manager‑‑‑Petitioner

versus

ABDUL MAHBOOD KHAN and 3 others‑‑‑Respondents

Writ Petition No. 15703 of 1999, heard on 14th March, 2000

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 4, 5 & 5‑A‑‑‑Enhancement of rent, application for‑‑‑Landlord filed application under Ss.4 & 5, West Pakistan Urban Rent Restriction Ordinance, 1959 for enhancement of rent of the premises‑‑‑Application was objected to by tenant contending that it was not maintainable as the same was not filed under S.5‑A of the Ordinance and that Rent Controller had erred in law in converting application filed under Ss.4 & 5 into S.5‑A of the Ordinance‑‑‑Contention of tenant that Rent Controller had no authority to convert application and grant relief to landlord under S.5‑A of West Pakistan Urban Rent Restriction Ordinance, 1959 was repelled as same was merely a mis-description or mentioning of wrong provisions of law‑‑‑Mention of wrong provision of law in application would not deprive Court of power and jurisdiction otherwise available under law.

Mst. Safia Bibi's case 1982 SCMR 494 ref

(b). West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 5‑A‑‑‑Enhancement of rent of premises‑‑‑Tenancy in question was for six years and rent/tenancy deed did not contain provision to debar landlord to claim enhanced rent from tenant till expiry of terms of six years originally agreed between the parties‑‑‑Enhancement of rent of premises as provided under S.5‑A of West Pakistan Urban Rent Restriction Ordinance, 1959 being automatic, increase in rent would become .effective automatically and tenant was under obligation to pay rent at revised rate and landlord was under obligation to accept the same‑‑‑Parties no doubt, could agree to another rate of rent, but in that case it was a condition precedent that agreement. In that respect should be executed before Rent Controller and for that purpose no notice was required‑‑‑Object was to exclude possibility of fake plea of agreement at a fate less than 25 %‑‑‑Any terms of rent deed in violation of provision of S.5‑A, West Pakistan Urban Rent Restriction Ordinance, 1959 would be void.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 5‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Rent Controller after proper appreciation of evidence on record had given finding of fact with regard to enhancement of rent of premises‑‑­High Court had no jurisdiction to substitute its own decision in place of decision of finding of Rent Controller in Constitutional jurisdiction.

Haji Muhainmad Ibrahim's case PLD, 1996 Lah 308 and

Mussadaq's case PLD 1973 SC 600 ref.

Abdul Sadiq Chaudhry for Petitioner, Abdul Saboor for Respondents Nos. l to 3

Date of hearing: 14th March, 2000.

2000 C L C 1311

[Lahore]

Before Syed Zahid Hussain, J

Mst. SARDAR BIBI and 7 others‑‑‑Petitioners

versus

HAMEED and another‑‑‑Respondents

Civil Revision No.225 of 2000, heard on 11th April, 2000, .Specific Relief Act (I (if 1877)‑‑‑ .

‑‑‑‑S. 42‑‑‑Civil Procedure Code' (V of 1908), O.XVIII, Rr.5, 8 & S:115‑‑­Suit for declaration‑‑‑Recording evidence by Court official‑‑‑Remand of case‑‑‑Validity‑‑‑Judgment and decree passed by Trial Court in favour of plaintiff were set aside by Appellate Court and matter was remanded to Trial Court for trial afresh on ground that evidence before Trial Court led by parties was not recorded by Presiding Officer himself, but was recorded by Reader of the Court‑‑‑ Evidence produced by parties was recorded by Court Official in presence of Presiding Officer of Court‑‑‑Both parties had cross-­examined witnesses of each other through their counsel‑‑‑Counsel of parties had put signatures on order sheet in token of correction of proceedings, at the closure of evidence‑‑‑No such objection was taken before Trial Court nor even during course of arguments at final stage‑‑‑Matter was agitated before First Appellate Court and that too during course of arguments although it was not a ground of challenge in memorandum of appeal and defendant raised said objection when case was decided by Trial Court against him‑‑‑No prejudice whatsoever was caused to either party‑‑‑Remand of case, in circumstances, was wholly unwarranted and would result in duplication of proceedings only which could not be the object of procedural provisions of Civil Procedure Code which were meant for advancement of cause of justice‑‑‑Case was not of such a deviation or violation as would have rendered proceedings null and void‑‑‑Judgment of Appellate Court below was set aside by High Court, in exercise of revisional jurisdiction

Shamsul Haq amd 3 others v. Muhammad Jamil PLD 1996 Lah. 235 ref.

Sardar Abdul Majeed Dogar for Petitioner. Ch. Muhammad Tufail Kasuri for Respondents. , Date of hearing: 11th April, 2000.

2000 C C 1314

[Karachi]

Before Rasheed Ahmed Razvi, J

MUHAMMAD SHAKIL‑‑‑Appellant

versus

MUHAMMAD NASEEM‑‑‑Respondent

First Rent Appeal No.98 of 1997, decided on 5th March, 1999

(a) Sindh Rented Premises Ordinance (XVH of 1979)‑‑‑

‑‑‑‑Ss. 10 & 15(2)(ii)‑‑‑Default in payment of rent‑‑‑Landlord having refused to receive rent, same was tendered by tenant in time, by. money order‑‑­Tenant, on refusal of landlord to accept rent through money order deposited rent in Court‑‑‑Tenant, in circumstances, had not committed wilful and deliberate default in payment of rent.

Nadeem Ahmed Alvi v. Omar Haleem 1996 MLD 791; Bashir Ahmad v. Muhammad Shafi 1989 SCMR 538 and Jehangir Rustom Kakalia v. State Bank of Pakistan 1992 SCMR 1296; Abdul Majeed Memon v. Mst. Attiya Rehman 1993 CLC 1350; Muhammad Anwar v. Syed Muhammad Sadiq 1993 CLC 1819; Muhammad Sanaullah v. Mehran Feed Industries Ltd. and others 1994 CLC 2141; Bunyad Ali v. Karim 1990 CLC 999 and Hassan Malik v. K. R. S. Iyer 1990 CLC 1729 ref.

(b) Sindh Rented Premises Ordinance (XV111 of 1979)‑‑‑

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Principle of res judicata‑‑‑Applicability‑‑‑Ejectment application filed earlier on same ground (of personal bona fide need of landlord) was allowed and, thus, need of landlord stood satisfied to the extent of accommodation required by landlord‑‑‑Question whether subsequent ejectment application on same ground of personal bona fide need of landlord, was not barred by principle of res judicata, was not considered by Rent Controller‑‑‑Validity‑‑‑Principle of res judicata would apply for fair administration . of justice and to extend finality to litigation between landlord and tenant‑‑‑Such question having not been addressed to by lower forums, case was remanded to Rent Controller to frame issue on point of application of bar of res judicata and to decide said issue after affording opportunity to parties to lead evidence on said limited question.

Mohiuddin Ansari v. Muhammad Arif Siddiqui 1991 CLC 72; S.M. Hayat v. Commodore .(Retd.) Ikramul Haq Malik and another 1984 CLC 3176; Messrs Allied Bank Ltd. v. Messrs Rahmat Sons Ltd. 1993 MLD 844 and National Bank of Pakistan v. Muhammad Ali 1996 CLC 956 ref.

Zafar Iqbal Dutt for Appellant. Muhammad Arif for Respondent. Date of hearing: 22nd February, 1999. _

2000 C L C 1319

[Lahore]

Before Syed Zahid Hussain, J

KALU KHAN‑‑‑Petitioner

versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 3 others‑‑‑Respondents.

Writ Petition No.3803 of 1987, heard on 3rd April, 2000.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑Ss. 10 & 13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Consolidation of holdings‑‑‑Consolidation scheme confirmed by the Authority was disputed by respondent in earlier round of litigation bus order confirming scheme attained finality as Member, Board of Revenue, who was final Authority, had‑ affirmed the same and respondent had not challenged the confirmation any further‑‑‑Respondent who was party to earlier consolidation proceedings again agitated matter by filing appeal which appeal was dismissed by Collector, but Additional Commissioner (Consolidation) accepted revision filed by respondent against order of Collector‑‑‑Petitioner having been adversely affected by order passed in revision, filed revision before Board of Revenue which was dismissed by Member (Judicial), Board of Revenue‑‑‑Such order was then assailed by petitioner in Constitutional petition‑‑‑Order passed by Competent Authority in earlier round of litigation having attained finality, no "de novo" proceedings could be initiated by respondent who was party in the earlier litigation‑‑‑When a lis would come for adjudication before Tribunal, same should receive judicious application of mind and consideration in accordance with law‑‑‑Order of Member (Judicial) Board of Revenue did not evince application of mind t8' the fact and circumstances of case as revision petition filed by petitioner was dismissed without being conscious of earlier round of litigation‑‑‑‑Order passed by Member (Judicial), Board of Revenue, which could not be considered as judicious, and legal, was declared to be illegal and of no legal effect by High Court in exercise of its Constitutional jurisdiction.

Malik Noor Muhammad Awan for Petitioner. Muhammad Hanif Khatana, Addl. A.‑G. for Respondents.

Date of hearing: 3rd April, 2000

2000 C L C 1322

[Lahore]

Before Karamat Nazir Bhandari, J

THE CHAIRMAN, BOARD OF INTERMEDIATE

AND SECONDARY EDUCATION, SARGODHA‑‑‑Petitioner

versus

QAISER IQBAL, and another‑‑‑Respondents

Civil Revision No. 1334 of 1999, decided on 11th April, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Punjab Board of Intermediate and Secondary Education Act (XIII of 1976), S.29‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration‑‑‑Jurisdiction of Civil Court‑‑‑Suit for declaration to the effect that plaintiff was entitled to issuance of certificate from the Board of Education indicating that plaintiff had not only passed in other subjects, but in subject of Model Drawing also was decreed by Civil Court and the decree was upheld in appeal by Appellate Court‑‑‑Decree passed by Civil Court affirmed by Appellate Court was without Jurisdiction as S.29, Punjab Board of Intermediate and Secondary Education Act, 1976 had taken away the .jurisdiction of Court to question the act done, order made or proceedings taken by Board of Intermediate and Secondary Education‑‑‑Such a Jurisdiction could not be assumed by ignorance of law, but it had to be there and it was duty of Court to be aware of provision of law touching its jurisdiction‑‑‑Irrespective of the fact whether objection to jurisdiction had been taken or not it had to be given effect by the Court‑‑‑To examine Jurisdictional error and any excess committed being the purpose of revisional jurisdiction, judgment and decree passed by Courts below having no jurisdiction to pass the same were set aside by High Court in exercise of its revisional jurisdiction.

Dr. M. Mohi‑ud‑Din Qazi for Petitioner, Hafiz Khalil Ahmad for Respondent No. 1.

Dates of hearing: 4th and 7th April, 2000.

2000 C L C 1325

[Lahore]

Before Ch. Ijaz Ahmad and Muhammad Zafar Yasin, JJ

SPORTS GUNS EXPORTING ENTERPRISES

through Partners and 2 others=‑‑Appellants

versus

UNITED BANK LIMITED

through Attroneys ‑‑‑ Respondent

First Appeal from Order No.219 of 1999, heard on 14th March, 2000.

Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)‑‑‑

‑‑‑‑S. 6‑‑‑Suit for recovery of loan‑‑‑Ex parte decree‑‑‑Setting aside of‑‑‑Suit having .been transferred to other Court, transferee Court summoned defendant/borrower through citation in newspaper, but defendant/borrower having failed to appear in‑Court, ex parte decree was passed against him‑‑­Defendant who had been appearing before Tribunal which had transferred suit to other Court, filed application for setting aside ex parte decree‑‑­Application for setting aside ex parte decree was time‑barred and defendant had failed to show any sufficient cause for condonation of delay‑‑‑Application for condonation of delay having rightly been dismissed, ex parte decree passed against defendant was in accordance with law.

S. Irshad Hussain and another v. Azizullah Khan 1987 SCMR 150 ref.

Muhammad Hanif Chaudhry for Appellants. Muhammad Rafi‑ud‑Din for Respondent.

Date of hearing: 14th March, 2000.

2000 C L C 1330

[Lahore]

Before Malik Muhammad Qayyum, J

UNITED BANK LTD. ‑‑‑Plaintiff

versus

Messrs ZAFAR TEXTILE MILLS LTD. ‑‑‑Defendant

Civil Original Suit No.11 of 1996, Civil Miscellaneous Nos.706/B and 708/B of 1999, decided on 10th March, 2000.

Banking Companies (Recovery of Loans, . Advances, Credits and Finances) Act (XXV of 1997)‑‑‑

‑‑‑‑Ss. 3, 12 & 27‑‑‑Civil Procedure Code (V of 1908), S.12(2) & O.IX, R.13‑‑‑Suit for recovery of loans‑‑‑Applications under S.12(2) & O.IX, R.13, C.P.C.‑‑‑Maintainability‑‑‑Respondents had filed applications under S.12(2) & O.IX, R.13, C.P.C. for seeking setting aside judgment and decree passed against them by Special Banking Court‑‑‑Validity‑‑‑Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, had itself provided a mechanism for challenging decrees and subject to which all orders and decrees passed were deemed to be final and could not be brought under challenge by invoking any other law‑‑‑Provision of S.12 of the Act had empowered Special Banking Court to set aside decree passed by it on ground stated therein‑‑‑Provisions of S.12(2) & O.IX, R.13, C.P.C. whereunder applications were filed for setting aside judgment and decree of Special Banking Court, had stood excluded and to allow decree to be questioned by means of application under Civil Procedure Code, would amount to defeat clear intent of Legislature which was spelt out by S.27 of the Act‑‑‑Applications were dismissed in circumstances.

Emirates Bank International Ltd. v. Messrs Osman Brothers and others PLD 1998 Kar. 338; Mian Munir Ahmad v. United Bank Limited PLD 1998 Kar. 278 and Pakistan Fisheries Ltd., Karachi v. United Bank Ltd. PLD 1993 SC 109 ref.

Shamas Mahmood Mirza for Plaintiff Irfan Masood Sheikh for Defendant.

2000 C L C 1337

[Lahore]

Before Maulvi Anwarul Haq, J

RIAZ HUSSAIN ‑‑‑ Appellant

versus

ALLAH DITTA and 3 others=‑‑Respondents

Regular Second Appeal No. 113 of 1982, heard on 15th March, 2000.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Suit for pre‑ emption‑‑‑Making up deficiency in court‑fee‑‑‑Once suit was filed within time prescribed by law then it could not be held to be beyond time on ground that court‑fee' had been paid at a 'time when limitation for pre‑emption snit had expired‑‑‑Court was required first to determine whether there was any deficiency in court‑fee and then to work out same in precise terms and only then a direction could be issued to plaintiff in terms of O. VII, R.11, C.P.C. for making up deficiency in court‑fee.

(b) Punjab Pre‑emption Act (I of 1913)‑

‑‑‑‑Ss. 21 & 22‑‑‑Suit for pre‑emption ‑‑‑Deposit of Zare‑e‑Panjam‑‑‑Trial Court on application of plaintiff extended date for deposit,of Zar‑e‑Panjam and plaintiff before expiry of the extended date filed application wherein he prayed that because of ruined crop he being not in a position to pay cash, he should be permitted to furnish security which application was accepted and plaintiff furnished security within stipulated period‑ ‑‑Provisions of S.22, Punjab Pre‑emption Act, 1913, having not spelled out any fetters on powers of Trial Court to extend time , to deposit Zar-e‑Panjam in cash or by furnishing security in respect thereof, Trial Court had rightly allowed plaintiff to furnish security instead of depositing cash amount within stipulated time‑‑‑Order competently passed by Trial Court could not be interfered with.

Siddique Khan's case PLD 1984 SC 289 and Ch. Zulfiqar Ali v. Mian Akhtar Islam and another PLD 1967 SC 418 ref.

Mian Arshad Latif for Appellant. Wazir Khan Baloch for Respondents.

Date of hearing: 15th March, 2000.

2000 C L C 1345

[Lahore]

Before Maulvi Anwarul Haq, J

IMAM BAKHSH‑‑‑Appellant versus

ALLAH WASAYA and 4 others‑‑‑Respondents

Regular Second Appeal No.503 of 1978, heard on 28th March, 2000.

Punjab Pre‑emption Act (I of 1913)=‑‑

‑‑‑‑Ss. 4, 15 & 21‑‑‑Suit for pre‑emption ‑‑‑Right of pre‑emption ‑‑‑Nature and extent of‑‑‑Land owned by two sisters having been purchased by their brothers, son of one of vendors, claiming superior rights of pre‑emption filed suit for pre‑emption‑‑‑Trial Court accepting claim of pre‑emptor decreed his suit to the extent of half share of suit land‑‑‑Appellate Court below dismissed suit setting aside judgment and decree of Trial Court, holding that even if a pre‑emptor was found to have superior right of pre‑emption qua a part of property, decree could not be granted to said pre‑emptor unless and until sale was held to be divisible‑‑‑Finding of Appellate Court could not be sustained, because right of pre‑emption was a right of substitution and effect of pre­emption decree upon fulfilment of its conditions was that pre‑emptor would substitute vendee to the extent 'of his superior right of pre‑emption ‑‑‑Pre­emptor being son of one of vendors would be substituted for vendees to the extent of half share of land sold by his mother regarding which it had been concurrently found by two Courts below that pre‑emptor being son of one of vendors had superior right of pre‑emption ‑‑‑Order of Appellate Court being contrary to law was set aside and that of Trial .Court was restored.

Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140 and Ghulam Muhammad and 3 others v. Khushi Muhammad and another PLD 1973 SC 444 ref.

Mian Habibur Rehman Ansari for Appellant. Ijaz Ahmad Bhatti for Respondents.

Date of hearing: 28th March, 2000.

2000 C L C 1348

[Lahore]

Before Muhammad Akhtar Shabbir, J

NASEER AHMAD and another‑‑‑Petitioners

versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 3 others‑‑‑Respondents

Writ Petitions, Nos.1405 to 1408 of 1983, heard on 16th February, 2000.

e

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 15 & 21‑‑‑Land Reforms Regulation, 1972 (M.L.R. 115), para.25‑‑­Suit for pre‑emption ‑‑‑Superior right of pre‑emption ‑‑‑Plaintiffs at the time of sale of suit land were entered in column of cultivation as tenants alongwith other cp‑tenants and were never ejected from suit land from date of sale of the land‑‑‑Superior right of plaintiff to pre‑empt suit land was established, in circumstances and they, being tenants, were entitled to first right of pre­emption in respect of land sold which comprised in their tenancy‑‑‑Suit was decreed in favour of plaintiff to the extent of pre‑empted land in their possession.

Fateh Khan v. Abdul Rehman 1983 SCMR 293; Noor Muhatnmad v. Member, Board of Revenue and 3 others 1985 CLC 571; Muhammad Bakhsh v. Shahid Abbas 1997 MLD 2602; Khuda Bakhsh v. Mehdi Hassan PLD 1989 Lah. 78; Government of N.‑W.F.P. v. Malik Said Kamal PLD 1986 SC 360; Salhoon v. Nazir Ahmed 1996 MLD 1922; Muhammad Akbar and others v. Sher Muhammad and others 1995 MLD 505; Muhammad Sharif, Member (Judicial II), Board of Revenue, Punjab, Lahore and others 1998 SCMR 488; Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 and Bahadur Khan v. Muhammad Yousaf and another 1992 SCMR 2117 ref.

Mirza Manzoor Ahmad for Petitioner. Sajjad Hussain for Respondents.

Date of hearing: 16th February, 2000.

2000 C L C 1352

[Karachi]

Before Rasheed Ahmed Razvi, J

KARACHI DEVELOPMENT AUTHORITY

and 2 others‑‑‑Applicants

versus

TAJ MAHAL NURSERY and 3 others‑‑‑Respondents

Civil Revision Application No. 227 of 1991, decided on 21st January, 1999

Civil Procedure Code (V of 1908)‑‑‑ '

‑‑‑‑0. XLI, R.31 & 5.115‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑­Suit for declaration and injunction‑‑‑Trial Court decreed suit and Appellate Court confirmed the same in appeal‑‑‑Both Courts below passed orders in gross misreading of evidence and contrary to the documentary evidence brought on record‑‑‑No points for determination were framed by Appellate Court nor evidence of both parties was discussed keeping in view points for determination‑‑‑Concurrent judgment and decree of Courts below passed in violation of O.XLI, R.31, C.P.C. was set aside by High Court in revision‑‑­Matter was remanded to decide afresh on merits and strictly in accordance with provisions of O.XLI,,R.31, C.P.C.

Miran alias Mir Muhammad v. Ghulam Hussain PLD 1985 Kar. 674; Wazir Khan v. A. Aziz Burney and 2 others 1992 MLD 1758; Muhammad Mustaqeem through his legal heirs v. Abdul Haleem through his legal heirs and others 1992 CLC 435; Syed Hussain Shah v. Malook and another 1987 CLC 2281; Juma khan v. Mst. Shamim and 3 others 1992 CLC 1022 and Manzoor‑ul‑Haq and 3 others v. Mst. Kanzee Begum 1993 CLC 109 ref.

Muzaffar Imam for Applicants.

Respondents (absent).

Date of hearing: 21st January, 1999.

2000 C L C 1359

[Lahore]

Before Sheikh Abdur Razzaq, J

KHADIM HUSSAIN and 3 others‑‑‑Petitioners

versus

FAZAL DIN‑‑‑Respondent

Civil Revision No.408‑D of 1986, heard on 21st February, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 115 & 100‑‑‑Revision‑‑‑Second .appeal‑‑‑Concurrent findings of fact recorded by Courts below could not be disturbed by High Court either in second appeal or in revisional jurisdiction, unless Courts below, while recording finding of fact, had either misread evidence or had ignored any material piece of evidence on record or the same was perverse=‑‑Jurisdiction of High Court was narrow and fact that on reappraisal of evidence a different conclusion could be drawn, was no ground to interfere with a finding of fact muchless a concurrent finding recorded by Courts below‑‑­Courts below having returned findings in accordance with law, revision against such findings was devoid of any force and was liable to be dismissed.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Sirbaland v. Allah Loke and others 1996 SCMR 575 ref.

Ajmal Kamal Mirza for Petitioners. Bashir Ahinad Ansari for Respondents.

Date of hearing: 21st February, 2000.

2000 C L C 1363

[Lahore]

Before Mian Allah Nawaz, CJ

PROVINCE OF PUNJAB through

COLLECTOR, BAHAWALPUR‑‑‑Petitioner

versus

ANWAR ALI and 315 others‑‑‑Respondents

Writ Petitions Nos. 714 and 2793 of 1999, heard on 11th April, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 175‑‑‑Judiciary, responsibility of‑‑‑Scope‑‑‑Sole responsibility of judiciary is to interpret and apply the laws, resolve disputes between citizens, between States and citizens, between States and Federating Units.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 203‑‑‑Powers of High Court under Arts.199 &, 203 of the Constitution‑‑‑Distinction‑‑‑Provision of Art.203 of the Constitution empowers High Court to superintend and supervise subordinate judiciary, Courts and forums below, while Art.199 of the Constitution deals with the powers of High Court to issue writs‑‑‑Power under Art.203. of the Constitution can be exercised even suo motu by High Court as a custodian of all the system of justice within its territorial jurisdiction and for establishing the supremacy of law‑‑‑Such power can only be exercised over Courts and Tribunals subordinate to it under its jurisdiction‑‑‑Power under Art.199 of the Constitution can be exercised not only over Courts and Tribunals but over all other bodies, like Government and Governmental functionaries‑‑­Article 199 bestows a power which is known as the power of judicial review/power of issuing writs‑‑‑Power under Art.199 of the Constitution is meant to foster the justice and keep various functionaries of State,, local bodies and so forth and so on, within the area of gratifying principles‑‑­Power of superintendence is to be taken as a power separate from the power to issue the writ‑‑‑Both the powers are supplementary and complementary to each other‑‑‑Power of superintendence is to keep the mainstream of justice free from extraneous pollutions, judicial perversions and from abuse of the judicial process.

Bhagirathi and others v. The State AIR 1955 All. 113; Waryam Singh v. Amarnath AIR 1954 SC 215; Motilal v. State AIR 1952 All. 963; Aidal Singh and others v. Karan Singh and others AIR 1957 All. 414; Gopala Ganu Wagale v. Shri Nageshwardeo Patas Abhishekh Anusthan Trust, Patas AIR 1978 SC 347; Mst. Safia Begum v. Abdul Hamid PLD 1968 Lah. 1358; Karim. Bakhsh v. Mst. Mubarik Jan PLD 1970 Pesh. 169 and Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others PLD 1996 Lah. 542 ref.

(c) Constitution of Pakistan (1973)‑‑

‑‑‑‑Arts. 203 & 199‑‑‑Jurisdiction of High Court, exercise of‑‑‑Scope‑‑­Power under Art.203 of the Constitution is wider than the power to issue writs under Art.199 of the Constitution and is original in nature‑‑‑High Court in both the jurisdictional spheres can neither become an Appellate Court or a revisional Court, nor is to ordinarily interfere with working of subordinate judiciary‑‑‑Power of superintendence is to be exercised sparingly and in highly exceptional cases‑‑‑Where there is total absence of jurisdiction, the manifest excess of jurisdiction or criminal imminent abuse of jurisdiction, such cases, warrant exercise of power under Art.203 of the Constitution.

(d) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 10‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Constitution of Pakistan (1973), Arts. 199 & 203‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑­Constitutional petition‑‑‑Suit for declaration‑‑‑Superintending jurisdiction of High Court‑‑‑Applicability‑‑‑More than 300 plaintiffs jointly filed a declaratory suit, whereas none of them was the owner of any existing right in any property‑‑‑All such plaintiffs filed the suit to the effect that they were entitled to be allotted land in future under a circular of Board of Revenue‑‑­Validity‑‑‑Neither any order was passed by Collector under S.10 of Colonization of Government Lands (Punjab) Act, 1912 in favour of the plaintiffs, nor the Provincial Government had issued any statement of conditions‑‑‑Suit filed by the plaintiffs did not fall within the domain of S.42 of Specific Relief Act, 1877‑‑‑Held, Trial Court should have examined the plaint and had applied O.VII, R.11, C.P.C. in order to relieve the Provincial Government and functionaries from an incompetent suit‑‑‑Judgment and decree passed by Trial Court were without jurisdiction, of no lawful authority ana could not be maintained which was set aside in exercise of powers under Art.203 of the Constitution.

(e) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Declaration, seeking of‑‑‑Scope‑‑‑In order to succeed under the provision of S.42 of Specific Relief Act, 1877, a plaintiff must show that he is entitled to any legal character or to any right to any property individually at the time of initiating the action.

Sh. Rafiquddin v. Asghar Ali AIR 1922 Pat. 392 and MD Abdul Kadeer v. Finaly Fleming & Co. AIR 1928 Rang. 256 ref.

Ch. Ijaz Ahmad. Addl. A.‑G. for Petitioner.

Ch. Riaz Ahmad for Respondents Nos. 112, 113, 135, 136; 124, 180, 143, 160, 133, 132, 144, 131 and 149.

Date of hearing: 11th April, 2000;

2000 C L C 1374

. [Lahore]

Before Tassaduq Hussain Jilani, J

KHIZAR HAYAT and 4 others‑‑‑Petitioners

versus

MUNICIPAL CORPORATION, FAISALABAD through

Mayor and 2 others‑‑‑Respondents

Amended Writ Petition Nos.2444 of 1989 in Writ Petition No.877 of 1988, decided on 1st May, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

Art. 199‑‑‑Constitutional petition‑‑‑Factual controversy, inquiry into‑‑­Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Ordinarily High Court does not enter into the domain of factual inquiry‑‑‑Where, however, vires of an order are challenged on the ground that the jurisdictional facts were non­existent and the Authority could not pass the order with regard to property in question, High Court can undertake a factual inquiry in the matter.

M.Y. Khan v. M.M. Aslam and 2 others 1974 SCMR 196 and Ch. Pervaiz Elahi v. Province of Punjab and another PLD 1993 Lah. 595 ref.

(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 45‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.129(e)‑‑‑Register of Record of Rights‑‑‑Entries made in the Register‑‑‑Presumption‑‑‑Register of Record of Rights being public document has presumption of truth attached to it‑‑‑Entries made in the Revenue Record have to be accepted ac true in absence of pursuasive rebuttal.

1989 SCMR 1610 ref.

(c) Void order‑‑‑

‑‑‑‑Value‑‑‑Void orders are non‑existent and could be ignored.

Yousaf Ali v. Muhammad Aslam Zia and 2 others 'PLD 1958 SC (Pak.) 104 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Locus standi, question of‑‑‑Scope‑‑‑Person competent to maintain a Constitutional, petition should have a personal right or interest in the performance of a duty, from which that person would derive some benefit, or advantage.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Factual controversy‑‑‑Disputed property was allotted to the predecessor of the petitioners by Settlement Authorities‑‑‑Petitioners were in possession of the same but the property was not an evacuee property and the same was owned by a Hindu Religious Trust which had come into the ownership of Evacuee Trust Properties Board after creation of Pakistan‑‑‑Petitioners through the Constitutional petitions sought declaration qua the property‑‑‑Validity‑‑‑Relief sought by petitioners entailed an inquiry into existence or otherwise of jurisdictional facts without which the legality of the orders passed in petitioners favour could not be commented upon‑‑‑Person seeking relief in equity must come with clean hands and a transparent claim‑‑‑Where the bona fides of the petitioners' claim over the property in question had eroded, the petitioners could not seek any relief in equitable jurisdiction of High Court‑‑‑Petition was dismissed in circumstances.

M. Ghani v. M.A. Mullick & Brothers and 3 others 1973 SCMR 90; Mussarrat Afza v. Shaukat Iqbal, Deputy Commissioner, District Mandi Bahauddin and 4 others 1998 CLC 733; Evacuee District Trust Committee, Hyderabad v. Muhammad Ismail and another PLD 1968 Kar. 557; Muhammad Mustafa v. Excise and Taxation Officer, Lahore and another PLD 1992 SC 62; Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Maj. Syed Walayat Shah v. Muzaffar Khan and 2 others PLD 1971 SC 184 and Crescent Sugar Mills and Distillery Ltd. v. Central Board of Revenue, Islamabad and 2 others PLD 1982 Lah. 1 ref.

Maqbool Sadiq for Petitioner. Ch. Ali Muhammad for Respondent No. 1. Shahid Saeed for Respondent No.2 M. Bilal Khan, Addl. A.‑G. f6r Respondent No.3.

Dates of hearing: 20th, 21st, 22nd, 23rd, December, 1999; 29th, February; lst and 2nd March, 2000.

2000 C L C 1384

[Lahore]

Before Muhammad Nawaz Abbasi, J

Dr. SA13IRA SULTANA‑‑‑Petitioner

versus

MAQSOOD SULARI, ADDITIONAL DISTRICT

AND SESSIONS JUDGE, RAWALPINDI

and 2 others‑‑‑Respondents

Writ Petition No.2397 of 1999, heard on 4th May, 2000.

(a) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑Ss. 6(5) & 10‑‑‑Mandatory for a husband to pay entire amount of dower, whether prompt or deferred in case of entering into contract of second marriage in presence of first wife without her permission‑‑‑Principles.

It is clear from provision of section 6(5), Muslim Family Laws Ordinance, 1961 that the second marriage in existence of first marriage, without the permission of first wife and Arbitration Council, is not void, but in case of contract of second marriage in presence of #first wife without permission of first wife, it is an offence which is punishable with simple imprisonment which may extend to one year, or with fine which may extend to Rs.5,000 or with both and further if the marriage is contracted in contravention of these provisions of law, the husband is liable to pay immediately entire dower whether .prompt or deferred to the existing wife or wives and the same is recoverable as arrears of land revenue. The second and third marriage in Islam is permissible on the basis of principle of equality and justice in all matters including love and affection. Therefore, the answer to the question whether without proper maintenance and payment of dower, whether prompt or deferred to an existing wife or wives, on her demand, the second marriage would be prohibited, is that as per mandate of Islam as well as the enacted law dealing with the matter, subject to the fulfilment of conditions given therein, there is no prohibition to go for a second marriage and if some one contracts second marriage in violation of said condition, he is bound to face the consequence of the existing law, as not only the permission of an Arbitration Council but prior consent of existing wife, or wives is essential. The deviation therefrom will not invalidate the second marriage, but it is obligatory on the husband to make payment of dower to an existing wife or wives, forthwith in addition to arty other penalty provided under the law. In the present case, notwithstanding pleadings of the parties, it is an admitted fact that the husband contracted a second marriage without the permission of the first wife. The statement made on oath by the first wife that the husband contracted second marriage without her consent and permission remained unrebutted as he did not himself appear in the witness­box. The consent of the wife being a personal matter, would only be in the exclusive knowledge of the husband and could not be pleaded through a third person, therefore, the attorney of the husband, while appearing in the witness‑box on behalf of the husband; would not be in a position to rebut the statement of the wife on oath. Under the Family Laws Ordinance, 1961, the permission of an Arbitration Council to a person to contract second marriage without the knowledge and hearing of the wife, even if given, is neither binding on the wife nor valid and legal. Thus, such a permission, if any, by an Arbitration Council on an application of the husband, without the knowledge of the wife and behind her back, was of no legal force and would not be binding on her. Therefore, the plea that the ground of second marriage without permission of an Arbitration Council having not been specifically taken in the plaint, the presumption of the existence of permission would be raised in favouf of the husband had no force. ‑In a case in which husband seeks permission for second marriage in presence of first wife from an Arbitration Council, such Council, at the conclusion of proceedings, issues a certificate to the husband, but in the present case, the husband has not produced such certificate before the Court. The perusal of Nikahnama of the marriage of husband with second wife also did not show that he contracted second marriage with. permission of an Arbitration Council or that the consent of his first wife was obtained by him at any stage.

Notwithstanding the controversy, whether the dower is prompt or deferred, it is established that the dower is an exclusive right of the wife. However, there are no bounds to quantity or value of the dower, which is left entirely to the will of the husband and wife. The payment of dower should be specified in such a manner so as to remove uncertainty and the payment of dower is the responsibility of the husband. A woman is not obliged to surrender her person till she receives her dower. However, the position may be changed after the marriage is consummated but in any case, the dower being the property of the wife, she can insist for its payment and use as per her right and a husband cannot justifiably deprive her while withholding the payment of dower for an indefinite period on the ground that the dower was Muwajjal or deferred. The only difference of Muwajjal and Muajjal i.e. deferred and prompt is that deferred dower is not payable till the arrival of stipulated period whereas prompt dower is payable immediately on demand and if for the payment of deferred dower no stipulated time. is fixed, it would be treated as prompt, payable on demand. Thus, the only distinction between a prompt and deferred dower is that payment of prompt dower cannot be postponed without the consent of wife, whereas the payment of deferred dower cannot be demanded before the stipulated period and a woman in such case is not at liberty to refuse the embraces of her husband as she has dropped her right of payment of dower till a specified time and if no specified time is fixed the dower described as deferred shall be prompt in nature to be paid on demand. The deferred dower without specification of period or stipulation, shall be payable at any time and if the same is deferred till a particular date or time, it shall not be payable before that date. A woman in case of desertion and neglect of maintenance or in case of contract A second marriage by, the husband without her permission and consent may, with or without asking for Talaq, justifiably demand payment of dower. The )revisions of section 6(5) of the Muslim Family Laws Ordinance, 1961, in case of second marriage by the husband without dissolution of first. marriage or permission of the first wife and an Arbitration Council, protects the right 4 first wife for immediate payment of dower, whether it has been described ‑As prompt or deferred and this provision of law has no conflict with the alamic concept of payment of dower. In Islam, the payment of dower is an essential obligation of the husband and failure thereto tantamounts to injustice and inequity. The classification of dower as prompt and deferred has no legal sanction behind it except the general practice in the Muslim Society for the convenience of the parties. Normally, women do not demand payment of full dower which is fixed at the time of marriage and only a portion of the dower is paid before consummation of marriage, and the remaining dower is deferred to be paid later which does not mean that either it was waived or was treated as deferred till dissolution of marriage. The concept and wisdom in this classification of dower as prompt and deferred depend upon the better relations of parties and protection of right of a woman in unforeseen circumstances without taking away her right of demand of payment of dower till the marriage is not dissolved. A person who contracts second marriage without dissolving marriage with first wife or wives and without their permission, he cannot withhold the payment of dower to the first wife or wives on any excuse and the condition of dissolution of marriage for the payment of deferred dower is not required. The postponement of the payment of dower for an indefinite period‑ would not mean that the same cannot be claimed before the dissolution of marriage and if it is considered as such, it would negate the concept of dower in Islam as well as defeat the Muslim Family Laws Ordinance, 1961. A person is not supposed to contract a second marriage without maintaining the first wife and payment of dower and thus, in case of contract of second marriage without payment of dower to the first wife, the law does not permit withholding the payment of dower till the dissolution of marriage. The deferred dower is sort of guarantee for a woman against ill‑treatment, non‑maintenance, desertion or any other abnormality in the family life including ;rash and arbitrary divorce whereas the prompt dower is payable either at the time of marriage or at any subsequent time when it is demanded by the wife. Thus, the payment of deferred dower is deemed to be postponed till either the specified me and if no time is specified, till the wife demands it. It is laid down in Holy Qur'an in Verse 124, Sura Seeing that you derive benefit from them,.. give them their dowers as prescribed."

There being no classification of the dower as prompt and deferred in the ffoly Qur'an and Sunnah, the deferment of the payment of dower for an indefinite period with the consent of the wife is not prohibited, but if a wife makes demand of its payment, the husband being under an obligation to make payment of the same, cannot further defer it on any excuse. The provisions of section 6(5) of the Muslim Family Laws Ordinance, 1961 being snot in conflict with Islam, it is mandatory for a husband to pay entire amount of dower, whether prompt or deferred, in case of entering into contract of second marriage in presence of first wife without her permission.

Binyamin and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Kitab‑al‑Fiq Ala Al‑Madhahib‑Al‑Arbaha by Abdul Rehman Al‑Jazairi Vo1.4, Chapt. of Nikah, p.153 published at Dar‑al‑Fikr and Bidaie‑As­Sanaie Fi‑Tarteeb Ash‑Sharaie by Allama Abu Bakr Ala‑ud‑Din Al‑Kasmi Al‑Hanifi Vol. II, p.288 ref.

(b) Muhammadan Law‑‑‑

‑‑‑‑Dower‑‑‑Classification‑‑‑Principles with regard to payment of dower by husband and right to receive the same by wife, elucidated.

Ghufran Khurshid Imtiazi for Petitioner.

Raja Muhammad Aslam and Raja Muhammad Hamid for

Respondents.

Syed Zakir Hussain Shah: Amicus curiae.

Date of hearing: 4th May, 2000.

2000 C L C 1395

[Lahore]

Before Malik Muhammad Qayyum .

and Syed Zahid Hussain, JJ

MUHAMMAD SHARIF and 6 others‑‑‑Petitioners

versus

CHIEF LAND COMMISSIONER, PUNJAB, LAHORE and 3 others‑‑‑Respondents

Writ Petition No.2337 of 1982, heard on 18th April, 2000.

West Pakistan Land Reforms Regulation, 1959 (M.L.R. 64)‑‑‑

‑‑‑‑Para. 25‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Complete holding of petitioner was declared void by Chief Land Commissioner‑‑‑Validity‑‑‑Holding of petitioner would stand reduced only to the extent of violation of para.25 of the Regulation‑‑‑Order of Chief Land Commissioner being without lawful authority and of no legal effect was set aside.

Chief Land Commissioner, Punjab, Lahore and othres v. Ghulam Mehr and others 1986 SCMR 286 rel.

Sh. Abdul Aziz for Petitioners. Date of hearing: 18th April, 2000

1396

2000 C L C 1397

[Lahore]

Before Mian Nazir Akhtar, J

Mst. KHURSHID BIBI‑‑‑Petitioner

versus

ZULQARNAIN and 4 others‑‑‑Respondents

Writ Petition No. 3366 of 1989, heard on 21st December, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑5. 12(2)‑‑‑Compromise decree, setting aside of‑‑‑Plea of coercion, fraud and misrepresentation‑‑‑Failure to give details of such plea in application under S.12(2), C.P.C.‑‑‑Effect‑‑‑Petitioner claimed to be an illiterate and Pardanashin lady who did not have independent advice available to her at the time of compromise‑‑‑Validity‑‑‑Petitioner was accompanied by her real brother who had no interest adverse to that of his sister and that the Court had fairly explained object of compromise to her‑‑‑Claim of the petitioner that the compromise was result of coercion was without any basis in circumstances‑‑‑No such claim of being Pardanashin and illiterate lady was made in the application‑‑‑Details of alleged coercion. fraud and misrepresentation having not been given. mere making of ‑such allegation was not enough‑‑‑Where no sound factual bases were laid down by the petitioner for her such claim, she was rightly non‑suited.

Umar Bakhsh and 2 others v. Azim Khan and 12 others 1993 SCMR 374 and Muhammad Nazir and 3 others v. Mst. Nasira Sultana and 5 others 1995 CLC 1745 ref.

(b) Civil Procedure Code (V of 1908)‑‑=

‑‑‑‑S. 12(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Setting aside of decree on the basis of coercion, fraud and misrepresentation‑‑‑Both the Courts below concurrently dismissed the application‑‑‑Validity‑‑‑Both the Courts below had properly appreciated the material on record and rightly non‑suited the petitioner‑‑‑Where there was no jurisdictional defect in the judgments .passed by the Courts below, interference in exercise of Constitutional jurisdiction under Art. 199 of the Constitution was not justified.

Syed Zainul Abidin for Petitioner. Nemo for Respondents Nos. l and 3 to 5. Ch. Muzammal Khan for Respondent No.2.

Date of hearing: 21st December. 1999.

2000 C L C 1403

[Lahore]

Before Malik Muhammad Qavyum, J

PLAY PICTURES through

Proprietor and 8 others‑‑‑Petitioners

versus

THE CENTRAL BOARD OF REVENUE through

Member, Customs, Islamabad and

4 others‑‑‑Respondents

Writ Petition No.25932 of 1998, heard on 10th May, 2000.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 25 & 223‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Determination of value of imported goods for the purpose of import , duty‑‑‑Decision by Central Board of Revenue under 5.223 of Customs Act, 1969 for determination of normal value is quasi judicial functions of Customs Officers‑‑‑Effect‑‑‑Petitioners were importers of cinematographic films and the Customs Authorities imposed import duty after inclusion of royalty of the films in the normal value of the films imported‑‑‑Such imposition of customs duty was imposed under a circular issued by the Central Board of Revenue‑‑‑Validity‑‑‑No order or direction could be given to the Central Board of Revenue and its subordinates in view of proviso to S.223 of Customs Act, 1969 so as to interfere with their quasi­judicial functions‑‑‑Normal value of the imported goods had to be adjudged by Customs Authorities in terms of S.25 of Customs Act, 1969, and they could not be influenced by any decision made by the Central Board of Revenue‑‑‑Circular issued by the Central Board of Revenue was without lawful authority and of no legal effect as the same was violative of proviso to 5.223 of Customs Act, 1969.

Attock Cement Pakistan Ltd. v. Collector of Customs, Collector of Customs and Central Excise, Quetta and 4 others 1999 PTD 1892 and M.A. Rehman v. Federation of Pakistan and others 1998 SCMR 691 ref.

Ali Sibtain Fazli for Petitioners. A. Karim Malik for Respondents.

Date of hearing: 10th May, 2000.

2000 C L C 1405

[Lahore]

Before Tassaduq Hussain Jilani, J

T. ZUBAIR LIMITED and 2 others‑‑‑Petitioners

versus. .

JUDGE, BANKING COURT NO.III, LAHORE and another‑‑‑Respondents

Writ Petition No. 1292 of 2000, decided on 21st April, 2000.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 7‑‑‑Civil Procedure Code (V of 1908), S.20 & O.XXXVII, Rr.2 & 3‑‑‑Proceedings for recovery of loan initiated by Bank against the borrower‑‑‑Territorial jurisdiction of Banking Court‑‑‑No specific jurisdictional clause was incorporated in the loan agreement, between the parties‑‑‑Mere incorporation of defendant‑company in U.K. or their residence there at the time of execution of loan agreement would not necessarily exclude the jurisdiction of the Banking Court in Pakistan in the recovery proceedings initiated by tote Rank‑‑‑Subsequent conduct of borrowers, the change of their ordinary residence the law applicable to the parties and the forum which would be just and proper would also be decisive factors while deciding the question of territorial jurisdiction‑‑‑Borrowers having given their address in Pakistan tin the affidavit, in the identity card and having admitted in the correspondence with the Bank that they had shifted to Pakistan, they were estopped to raise the question of territorial jurisdiction by asserting that they resided in the United Kingdom when the agreement for loan was executed‑‑‑Contention of the borrower that since the witnesses which the parties had to produce resided in England and the properties mortgaged against the loan were also in U.K., therefore, a Court in U.K. would be more convenient forum was repelled being not tenable‑‑­Borrowers being citizens and residents of Pakistan were subject to ordinary law of the land and S.20, C.P.C. was relatable to the territorial jurisdiction where a suit was to be filed.

Dur Muhammad Piracha v. Judge, Special Court Banking and others 1982 CLC 1625; Sh. Muhammad Ramxan v. Special Judge Banking Court 1986 MLD 614; Lala Dhanpat Rai V. Sri‑ Prem Sunder Bharghava and others AIR 1962 All. 572; Ramdhari Lal and others v. Uday Narayan and others AIR 1957 Pat. 231; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Abdullah Khan v. Mst. Abbasi Begum etc. 1982 CLC 1956; Partap Singh Kairon v. Gurmej S ingh AIR 1958 Pb. 409; Janki Das and another v. Kalu Ram and another AIR 1936 Pat. 250; Udmi Ram, Ram Sarup v. Ghasi Ram, Sakhan Lal AIR 1933 All. 753; Spiliada Martime Crop v. Cansullex Limited 1986 All ER 843; The Abidin Daver's case (1984) All ER 470; Eleftheria v. Owners of Ship of Vessel Eleftheria (1969) 2 All ER 641; The Owners of the Atlantic Star v. The Owners of the Bona Spes 1973 All ER 176; Malik Ejaz v. Abdul Haleem and others 4999 MLD 1315; Muharpmad Zaki and another v. Muhamad Taqi PLD 1995 Kar. 416; Muhammad Sadiq v. Irshad Begum 1994 MLD 940 and Muhammad Yaqoob Khan v. Dalil Khan and 15 others 1993 CLC 633 ref.

(b) "Forum non‑conveniens", doctrine of‑‑‑

‑‑‑‑Applicability‑‑‑Term elucidated with reference to celeberated taxtbooks and case‑law on the subject.

Cheshire and North's Private Iriternational Law by PM North, JJ Fawcett, Thirteenth Edn. (Butterworths'), p.334; Black's Law Dictionary 'Eleftheria's case (1969) 2 All. ER 641; The Abidin Daver's case (1984) 1 All ELR 470; Spiliada Martime Crop v. C‑ansulex Limited 1986 All ER 843; J.G. Collier Conflict of Laws by J.G. Collier, 2nd Edn., Cambridge University Press p.96; Cheshire and North's Private Intemauunal Law by PM North, JJ Fawcett, Thirteenth Edn. (Butterworths): Pakistan National Shipping Case (Baghlaf A1 Safer Factory Company B.R. for Industry Limited v. Pakistan National Shipping Company (unreported); Pakistan National Shipping Case (Amicus curiae ‑‑‑Journal of the Society for Advanced Legal Studies, Issue No. 14, February, 1999; Connelly v. RTZ Corporation PLC (1977) 3 WLR 373 (HL) and Black's Law Dictionary, 6th Edn., Centennial Edn., 1891‑1991 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 20‑‑‑Banking Companies (Recovery of Loans,. Advances, Credits and Finances) Act (XV of 1997), S. 7‑‑‑Recovery of loan proceedings initiated by Bank against the borrower‑..Territorial jurisdiction of Banking Court‑..Forum non‑conveniens, doctrine of ‑‑Applicability‑‑‑Principles‑..No specific choice of forum clause in the loan agreement having been included, question of "proper jurisdiction" or "appropriate='forum" and the "natural forum" would have to be resolved in the light of canons of equity i.e. what was just and reasonable for the parties and with reference to the country with which the action had the most real and substantial connection.

In the present case there was no specific choice of forum clause in the loan agreement. In absence of that clause the questions of "proper jurisdiction" or "appropriate forum" and the "natural forum" would have to be resolved in the light of canons of equity i.e. what is just and reasonable for the parties and with reference to the country with which the action had most real and substantial connection.

Principles of natural justice and reasonableness had to be harmonized with "the normal lex fori rules" of the country where a suit is pending and stay of which was sought. In the present case borrowers besides being Pakistani citizens resided in Pakistan which was evident from their correspondence with the Bank, the affidavit tendered before the trial Court and the Identity Card which had been appended with the petitioner in terms of section 20 of the Civil Procedure Code, they had been rightly sued in Pakistan. They had been unable to demonstrate before the trial Court and before High Court as to how they would be at "relative disadvantage" if the trial is allowed to be held in Pakistan. No "personal" or "jurisdictional advantage" to the bank and "corresponding disadvantage" to the borrowers was apparent in the proceedings in Pakistan. The case was pending since 1989. Borrowers were granted leave to defend as far back as 1992. After seven years they had moved the, application for return of plaint to the Court in U.K.. During these years almost the entire evidence of the plaintiff except one witness" had been recorded. It would be unjust and unreasonable at this belated stage to terminate the proceedings before the trial Court and sent the case to United Kingdom.

Cheshire and North's Private International Law by PM North, ii Fawcett, Thirteenth Edn. (Butterworths), p.334; Black's Law Dictionary Eleftheria's case (1969) 2 All. ER 641; The Abidin Daver's case (1984) 1 All ELR 470; Spiliada Martime Crop v. Cansulex Limited 1986 All ER 843; J.G. Collier Conflict of Laws by J.G. Collier, 2nd Edn. p.96, Cambridge University Press p.96; Cheshire and North's Private International Law by PM North, JJ Fawcett, Thirteenth Edn. (Butterworths); Pakistan National Shipping Case (Baghlaf A1 Safer Factory Company B.R. for Industry Limited v. Pakistan National Shipping Company (unreported), Pakistan National Shipping Case (Amicus curiae ‑‑‑Journal of the Society for Advanced Legal Studies, Issue No.14, February, 1999; Connelly v. RTZ Corporation PLC (1977) 3 WLR 373 (HL) and Black's Law Dictionary, 6th Edn., Centennial Edn., 1891‑1991 ref.

Jawad Hassan for Petitioner. Muhammad Afzal Sandhu for Respondent.

Date of hearing: 28th March, 2000.

2000 C L C 1417

[Lahore]

Before Raja Muhammad Sabir, J

Messrs PRIME GLASS (PVT.) LTD. ‑‑‑Petitioner

versus

NATIONAL BANK OF PAKISTAN

and another‑‑‑Respondents

Writ Petition No. 1894 of 1997, heard on 20th December, 1999.

Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)‑‑‑

‑‑‑‑S. 6‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for recovery of loan‑‑‑Pending suit, defendant/borrower with leave of the Court sold part of mortgaged property and deposited its sale proceeds with Bank‑‑‑Court passed preliminary decree without adjusting the amount deposited‑ by defendant/borrower ‑‑‑Said amount was deposited by defendant/borrower under the order of the Court prior to passing of preliminary decree against defendant/borrower and Bank, while receiving said amount, gave undertaking that the amount would be drawn upon or adjusted only under orders of the High Court, but Bank, in violation of the undertaking utilized said amount against two small accounts of defendant/borrower and part payment in the third account instead of its adjustment towards the principal account of borrower‑‑‑Validity‑‑‑Amount deposited by borrower being still at the disposal of Court, defendant/borrower could validly utilize the same for settlement of account under incentive scheme‑‑‑Refusal of Bank to adjust the amount against principal amount, was declared illegal by High Court in exercise of its Constitutional jurisdiction.

P. Narasaiah v. , P. Rajoo Reddy 1990 MLD 431 (Andh. Pra. (India)) ref:

Malik Qamar Afzal Khan for Petitioner. Kh. Muhammad Farooq for Respondents.

Date. of hearing: 20th December, 1999.

2000 C L C 1422

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

SHAMSHAD ALI and others ‑‑‑Appellants

versus

CHIEF ADMINISTRATOR and others‑‑‑Respondents

First Appeal from Order No.232 of 1989, heard on 22nd May, 2000.

Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑‑‑S. I1‑‑‑Civil Procedure Code (V of 1908), S.96 & O.XXIII, R.1‑‑­Declaration of property as "Waqf property "‑‑‑Appeal, maintainability of‑‑­Property owned by predecessor‑in‑interest of appellant was taken over and was assumed in administrative control, management and maintenance as Waqf property by a notification‑‑‑Appellant filed petition against said order of Authority under S.11 of Punjab Waqf Properties Ordinance, 1979 after fourteen years of notification issued for declaring said property as Waqf property‑‑‑Case was fixed for evidence,. but no evidence was produced by either side‑‑‑Appellant filed petition under O.XXIII, R.1, C.P.C. for withdrawal of main petition for filing fresh one, but Trial Court dismissed main petition of appellant being barred by time‑‑‑Validity‑‑‑Appellant was possessed with power to challenge notification _ within thirty days of its publication, but he remained indolent for fourteen years‑‑‑“ Parcha Dakhal" regarding the property also related. to year when notification for taking over property was issued‑‑Trial Court, in circumstances, had rightly dismissed ,petition filed by appellant/petitioner under S.11 of Punjab Waqf Properties Ordinance, 1979, being barred by time‑‑‑Order of Trial Court could not be interfered within ‑appeal.

Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639; Elabi Bakhgh v. Chief Administrator, Auqaf Property 1982 SCMR 160; Ch. Naveed. Manzoor v. Chief Administrator, Auqaf Department, Punjab, Lahore and 2 others KLR 2000 Civil Cases 209 and 1972 SCMR 297 ref. Nadeem Aqil Mirza for Appellants. Raja Muhammad Arif for Respondents.

Date of hearing: 22nd May, 2000.

2000 C L C 1436

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD NADEEM BUTT‑‑‑Petitioner

versus

UNITED BANK LIMITED through

Manager and another=‑‑Respondents

Writ Petition No.21806 of 1999, heard on 19th April, 2000

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 7(6)(7)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Return of plaint‑‑‑Trial Court, on application of defendant for return/rejection of plaint, returned the plaint to plaintiff for presentation before appropriate Court instead of transferring the same‑‑‑Order passed by Trial Court could not be regarded as legal because in terms of S.7(6) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 suit pending before any other Court had to be transferred and it had to be deemed to have been transferred to Banking Court concerned‑‑­Order returning plaint to plaintiff, thus, could not be sustained‑‑‑Order of .„, Trial Court was declared without lawful authority by High Court in exerciseof its Constitutional jurisdiction.

Sh. Asgher Waheed Butt for Petitioner.

Ijaz Ahmad Awan for Respondents.

Date of hearing: 19th April, 2000.

2000 C L C 1442

[Lahore]

Before Ali Nawaz Chowhan, J

MOEEN NAWAZ KHAN‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE, KHANEWAL and another‑‑‑Respondents

Writ Petition No.5851 of 1999, decided on 13th March, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑ .

‑‑‑‑0. XXXIII, Rr.l, 2, 8 & 9‑‑‑Suit by pauper‑‑‑Object of O.XXXIII, C.P.C. dealing with applications and suits by paupers was three‑folds i.e. to protect bona fide claim of a pauper; to safeguard interests of revenue and to protect defendant's right not to be harassed.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXXIII, Rr.2, 3, 4, 5, 8 & 5.115‑‑‑Pauper. suit ‑‑‑Procedure‑‑­Application for permission to sue as pauper before its conversion into a suit, would be in nature of a composite application‑‑‑Once the application was admitted It would be numbered and registered as a plaint in a suit which would proceed in all respects as a suit in ordinary manner‑‑‑Where suit was not otherwise competent and where application in forma pauperis did not show a cause of action, such application was not maintainable‑‑‑Question whether application was maintainable or not and whether permission could be allowed or refused under R.8 of O.XXXIII, LP.C, would be decided by Civil Court of competent jurisdiction which would adhere to special procedure designed to ameliorate hardship of those who could not pay the court‑fee‑‑‑When value was fixed for jurisdiction which only a 1st Class Civil Judge could exercise, application would be submitted to such Court and not to any Court exercising civil jurisdiction‑‑‑Revision petition would be preferred against order allowing or disallowing application and a Court of error would hear revision petition corresponding to pecuniary jurisdiction, which it enjoyed in appeal‑‑‑Court could not correct the error committed by a subordinate Court which was not subordinate to it in view of pecuniary jurisdictional aspect.

Abdur Rauf v. Khalid PLD 1968 Lah. 423; Sardar Hari Chand v. Durga Devi AIR 1941 Lah. 128; Firm Bhajan Ram Gil Raj Mal v. Mst. Narain Devi AIR 1926 Lah. 642; Hafi Karishna Datta v. K.R. Khosfa AIR 1934 Lah. 231; Sadaqat Ali Khan v. Muhammad Sajjat Ali Khan AIR 1929 Lah. 257.; Venkatakrisnaya v. Sayamma AIR 1926 Mad. 958; Bihari Sahu v. Sudama Kuer AIR 1938 Pat. 209; Ma Ma Gale v. Ma Mi. AIR 1931 Rang. 318; Durga Prasad v. Gur Dularey AIR 1938 Oudh 146; Bai Chandan v. Chhotalal Jekisond AIR 1932 Bom. 584; Ram Dulari v. Alian Bibi AIR 1942 Oudh 240; Ramzan Ali v. Satul Bibi AIR 1948 All. 244; B.B. and C.I. Ry. Co. v. Nitthu AIR 1931 All. 659; Sundar Das v. Mst. Narain Devi 87 PR 1912 and Maratab Ali v. Madan Lal AIR 1934 Lah. 295 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S: 115‑‑‑Revisional jurisdiction, exercise of‑‑‑When Court of error would take up a matter under jurisdiction vested in it in view of S.115, C.P.C., it would take into consideration the fact whether Court below had exercised jurisdiction not vested in it by law or it had failed to exercise its jurisdiction so vested‑‑‑Question of jurisdiction in a revision petition was one of utmost importance and a Court of error could only exercise its powers when it exercised jurisdiction whether pecuniary ‑or territorial and not ,otherwise.

(d) Civil Procedure Code (V of 1908)‑‑‑

1‑‑‑‑S. 11 & OXXXIII, Rr.l, 2, 3‑‑‑Application for permission to sue as pauper‑‑‑Conversion of such application into plaint‑‑‑Effect‑‑‑Rejection of application on ground of res judicata‑‑‑Application for permission to sue as pauper, though would turn into a plaint only on ground of permission, but for all purposes it was a plaint‑‑‑Only extraordinary thing about said application was that it was asking for exemption from court‑fee and was submitted to test prescribed by OXXXIII, C.P.C. meant to safeguard interest of Government while also providing facility to the applicant‑‑

Merely because application subsequently, emerged or took nomenclature of a plaint, same would not take away its intrinsic value of being a plaint on the threshold of becoming a suit if permission was allowed with respect to exemption from , court‑fee‑‑‑Such application could not be treated as just a miscellaneous application to be filed anywhere without regard to pecuniary or territorial jurisdiction‑‑‑Court could not take step as envisaged by OXXXIII, C.P.C. without having competency and powers both pecuniary and otherwise‑‑‑Application for permission to sue as a pauper could even be rejected on ground of res judicata and bar of 1' it ion.

West Pakistan Province v. Hazrat Gul Khan and another PLD 1966 Pesh. 34; Haur Kur v. Muni Lal AIR 1919 Lah. 4; Bhino v. Tiri Nath AIR 1963 Orissa 223; Yousaf Abid v Secretary AIR 1936 Sindh 13(1 and Fazal v. Abdul Hussain pLD 1977 Kai‑_ 772 ref.

(e) Civil Procedure Code (V of 1908)‑‑‑40

‑‑‑‑0. XXXIII, Rr.2, 3 & 8‑‑‑Application for permission to sue at pauper‑‑­Conversion into suit‑‑‑Procedure‑‑‑Application under OXXXIII, C.P C‑ in forma pauperis had to follow dictates‑ of law with respect to jurisdiction of Court both pecuniary and territorial, though it qualified to be a suit upon a plaint on the date it received permission which itself had a retrospective effect‑‑‑Application in forma pauperis was allowed to be registered as a suit from the date of its filing‑‑‑Where dispute was as to valuation of the property, Court had not to go into such a dispute for purpose of ascertaining its pecuniary jurisdiction until it had allowed permission and matter was registered as a suit‑‑‑Where plaintiff would choose to affix valuation, no doubt was left about pecuniary jurisdiction on the face of application‑‑‑Best thing in circumstances was to file application before a Court having. jurisdiction in the matter.

AIR 1950 Pat. 309; Muhammad Ali v. Maj. Muhammad Aslam and others 1988 CLC 718 and Mst. Hassan Perveen and others v. Muhammad Zafar Ullah and others PLD 1986 Lah. 409 ref.

Syed Muhammad Ali Gilani for Petitioner. Riaz Muhammad Khan for Respondent No.2.

2000 C L C 1450

[Lahore]

Before Nasim Sikandar

and Maulvi Anwarul Haq, JJ

PUNJAB PUBLIC SREVICE COMMISSION

through Chairman and 2 others‑‑‑Appellants

versus

FAIZ BUKHSH MUJAHID ‑‑‑ Respondent

Intra‑Court Appeal No.203 in Writ Petition No.2509 of 1998, heard on 15th February, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑‑Competitive examination held by Punjab Public Service Commission‑‑‑Grace marks‑‑‑Rounding off fractional marks to next whole number‑‑‑Rule of arithmetic‑‑‑Applicability‑‑‑Candidate secured 273 marks out of, total 550 and. the requirement of selection was to achieve 50 % of the total‑‑‑Contention raised . by the candidate was that 273 marks amounted to 49.63 % and by application of rounding off fractional marks rule, candidate had passed such competitive examination‑‑‑High Court (Single Judge) accepted such plea and allowed the Constitutional petition filed by the candidate‑‑‑Validity‑‑‑Rule of rounding off a fraction to the next whole was only one of convenience and not that of law‑‑‑Such rule was applicable only in cases where a division in fraction had to be made perforce and then to attain clarity and certainty a figure was rounded off to the next whole‑‑­Requirement of rule once sacrificed, a deviation when candoned wittingly of unwittingly, the same would give way to even greater breaches and serious defalcation in the times to come‑‑‑Figure of 273 in any circumstances or case could not be read as 275‑‑‑Even if the percentage qua the total was kept in sight still 49.63 % did not amount to 50 %‑‑‑Marks obtained by the candidate, at any rate did not amount to the marks fixed‑ as the minimum standard in the recruitment rules‑‑‑Order passed by the High Court (Single Judge) was set aside in Intra‑Court Appeal.

JAM Ahmad v. Punjab Public Service Commission 1998 CLC 435; Abdul Rehman v. Prof. Ghulam Rasool Tanwir and others PLD 1985 Lah. 426; Punjab Public Service Commission etc. v. S. Maruf Ahmad Ali PLD 1988 SC 356; Sajid Karim v. Government of Punjab etc. PLD 1996 Lah. 575; Dr. Zia Suleman Farooq v. Punjab Public Service Commission etc. PLD 1994 Lah. 55; Jamil Ahmed Qureshi v. S.H.O. PLD 1980 Lah. 119; Dr. Muhammad Iqbal etc. v. Haji Muhammad Akram PLD 1991 Lah. 8; Riaz‑ul‑Haq v. Selection Committee Constituted for Admission to Bolan Medical College etc. 1997 SCMR 1845; Chairman, Selection Committee/Principal, King Edward Medical College etc. v. Wasif Zamir Ahmad etc. 1997 SCMR 15; The Province of East Pakistan and another v. Siraj‑ul‑Haq Patwari and another PLD 1966 SC 854; Kalsoom Malik . v. Assistant Commissioner 1996 SCMR 710 and Ch. Manzoor Elahi v. Federation of Pakistan etc. PLD 1975 SC 66 ref.

Mushtaq Ahmad Mohal, Law Officer and Akhtar Masood Ahmad for Appellant.

Rana Muhammad Khalid Ayyaz for Respondent.

Date of hearing: 15th February, 2000

2000 C L C 1464

[Lahore]

Before Nasim Sikandar, J

CHIEF ADMINISTRATOR AUQAF, PUNJAB, LAHORE‑‑‑Petitioner

versus

DISTRICT JUDGE, SAHIWAL, and another‑‑‑Respondents

Writ Petition No.545 of 1986, heard on 6th March, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Assailing the order of Civil Court in Constitutional petition‑‑‑Scope‑‑‑No such petition was maintainable‑ unless order of Civil Court was wholly void or coram non judice.

Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 and Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 ref.

(b) Auqaf (Federal Control) Act (LVI of 1976)‑‑‑

‑‑‑‑Ss. 7 & 11‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Order of District Judge declaring the disputed property as a "Waqf" property‑‑‑Validity‑‑‑Authorities withdrew the notification and District Judge decided the matter in accordance with the statement of the Authorities during the pendency of proceedings against notification of taking charge of the disputed property‑‑‑Constitutional petition was filed with a delay of 7 years, neither there was any reason for such delay nor any justification for failure to file an appeal against the order of District Judge‑‑‑Situation emerging from the record of the case did not justify exercise of Constitutional jurisdiction vested in High Court‑‑‑Petition was dismissed in circumstances.

The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan and 2 others PLD 1972 SC 279; Utility Stores corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987. SC 447: Zafar‑ul‑Ahsan v. The Republic of Pakistan through Cabinet Secretary, Government of Pakistan PLD 1960 SC 113; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Hira Lal Patni v. Sri Kali Nath AIR 1962 SC 199; Rampratab Brijmohandas and others v. Govrishankar Kashiram AIR 1924 Bom. 109; Cuttack Municipality v. Shyamsundar Behera AIR 1977 Orissa 137; Khan Bahadur v. Sher Ahmed and 3 others PLD 1993 Pesh. 241; Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246; Messrs Tank Steel and Re‑rolling Mills (Pvt) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others PLD 1996 SC 77; Chief Administrator of Auqaf v. Muhammad Ramzan and others PLD 1991 SC 102; Shaikh Gulzar Ali & Co. Ltd. and others v. Special Judge, Special Court of Banking and another 1991 SCMR 590 and Muhammad Sharif v. Chief Administrator of Auqaf, Punjab, Lahore 1971 SCMR 713 ref.

Mirza Manzoor Ahmad for Petitioner. Nemo for Respondent No. 1. Ch. Imdad Ali Khan for Respondent No.2.

Date of hearing: 6th March, 2000.

2000 C L C 1468

[Lahore]

Before Dr. Munir Ahmad Mughal, J

GULLU ‑‑‑ Petitioner

versus

RAMZAN and 6 others‑‑‑Respondents

Civil Revision No. 1375‑D of 1992, decided on 15th March, 2000.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 39(2)(a)‑‑‑West Pakistan Land Revenue Rules, 1968, R.72(i) & Form No.XXXIV‑‑‑Register Haqdaran Zamin‑‑‑Description‑‑‑Such register is the most important document of the record of rights as well as periodical record‑‑‑Details of each column of Form No. XXXIV highlighted.

(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 4(10)‑‑‑"Khewat" and "Khata"‑‑‑Connotation‑‑‑Words "Khewat" and "Khata" are Vernacular equivalent of term "holding" defined in S.4(10) of West Pakistan Land Revenue Act, 1967, as a share or portion of an estate held by one landowner or jointly by two or more landowners.

(c) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑(. 72(i) & Form No.XXXIV‑‑‑Register Haqdaran Zamin, Column No.l‑‑‑"Khewat Malik"‑‑‑Meaning and scope‑‑‑Number Khewat Malik (Khatedar) is the number given to an owner's holding‑‑‑Order in which Khewat holdings are arranged described.

(d) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑8. 72(i) & Form No.XXXIV‑‑‑Register Haqdaran Zamin, Column No.2‑‑‑Number of Khatauni cultivator (Kashtkar)‑‑‑Meaning and scope‑‑­Column No‑2 relates to the number of holding of the tenant or of the person responsible for cultivation‑‑‑Order in which 3Khatauni holdings within each Khewat is arranged, detailed.

(e) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑8. 72(i) & Form No.XXXIV‑‑‑Register Haqdaran Zamin, Column No.3‑‑‑Name of owner with description‑‑‑Landowner is a person as defined in S.4(13) of West Pakistan Land Revenue Act, 1967‑‑‑Where common (Shamilat) land exists in an estate the owner who has no share in common land is shown as Malik Kabza and the person who has no land but has a right in the common land is shown as right‑holder in common land (Haqdar Shamilat).

(f) West Pakistan Land Revenue Rules, 1968--

‑‑‑‑(. 72(i) & Form No.XXXIV‑‑‑Register Haqdaran Zamin, Column No.4‑‑‑Column No.4 contains name of cultivator with description‑‑‑This column described status of cultivator.

(g) Punjab Tenancy Act (XV1 of 1887)‑‑‑

‑‑‑‑S. 10‑‑‑"Occupancy tenant ".‑‑‑Defined.

(h) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 3‑‑‑"Tenant"‑‑‑Meaning and scope.

(i) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 39‑‑‑Term "Pattedar Miadi" as used in Revenue Record‑‑‑Meaning‑‑­Pattedar Miadi are tenants for a fixed term exceeding one year.

(j) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑R. 72(i) & Form No.XXXIV‑‑‑Register Haqdaran Zamin,. Columns Nos.5, 6, 7 & 8, explained.

(k) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑R. 72(i) & Form No.XXXIV‑‑‑Register Haqdaran Zamin, Columns Nos.9 & 10, explained.

(1) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 39(2)‑‑‑West Pakistan Land Revenue Rules, 1968, R.72(i) and Form No.XXXIV‑‑‑Civil Procedure Code (V of 1908), 5.115‑‑‑Register Haqdaran Zamin, entries in Columns Nos.4 & 8‑‑‑Adverse possession, basis of ownership‑‑‑Petitioner claimed his ownership on the basis of status of adverse possession‑‑‑ was entered in Column No.4 and entry of in Column No.8 of Register Haqdaran Zamin‑‑­Validity‑‑‑Such entries could not make the. petitioner the owner as in the column of ownership, the names of the respondents were intact and there was no mutation attested for such purpose by the Revenue Officer and the entry of Qabiz was, therefore, unauthorised and carried little evidentiary value‑‑­Elements of adverse possession in the case were wanting and the possession of the petitioner as could not ripe into ownership rights for extinguishment of rights of true owners of property in question‑‑‑Judgment and decree passed by Lower Appellate Court were unexceptionable and the same were upheld‑‑‑Revision was dismissed , in circumstances.

Shah Muhammad v. Khan Poor PLD 1986 SC 91; Shamsur Rehman v.,Hukumat Khan and another PLD 1967 Pesh. 304; Shad Muhammad v. Khanpur PLD 1979 Pesh. 93; Said Amir and others v. Ashraf Khan and others PLD 1986 SC 1.13; Lala v. Mst. Janie 1968 SCMR 131; Ahmad Khan v. Rasul Shah PLD 1975 SC 311; Khair Muhammad v. Khuda Bakhsh I 97t, SCMR 69; Munawar Hussain Shah v. Mss. Morn Bi PLD 1978 SC (AJ&K) 33; Bashir Ahmad v. Mushtnn Ahmad 198? CCMR 6611: Sohawa Singh v. Kesar Singh AIR 1932 Lah. 586; Mst. Bagh Bhar. v. Mst Bhagan PLD 1954 Lah. 356; Muhammad v. Salehop P1.D 1955 Lah. 483; Hayat v Muhammad Sadiq PLD 1956 (W.P.) Lah. 195; Mst. Jindo v. Custodian of Evacuee Property, West Pakistan, Lahore PLD 1964 (W.P.) Lah. 351; Wasan v. Hassan PLD 1977 Lah. 429; Umar Said v. Faiz Muhammad Khan PLD (961 (W. P.) Pesh. 110; Shamshad and others v. Mukammil Shah and others 1984 SCMR 912; Mehrab Shah through his Legal Heirs v. Shah Zaman and others 1985 SCMR 497; Fazal Ghani v. Khitab Gul 1968 SCMR 1040(2); Khanan and 2 others v. Fateh Sher through Ahmad and 15 others 1993 SCMR 1578; Ghulam Hussain and 6 others v. Rab Nawaz Khan and another 1993 CLC 1053 and Malik Ghulam Haider and others v. Haider and others PLD 1951 Lah. 92 ref.

Malik Noor Muhammad Awan for Petitioner. Malik Allah Wasaya for Respondents.

Date of hearing: 13th December, 1999.

2000 C L C 1482

[Lahore]

Before Syed Zahid Hussain, J

KHADIM‑ HUSSAIN and another‑‑‑Petitioners

versus

MUHAMMAD IDREES and 4 others‑‑‑Respondents

Civil Revision No. 173‑D of 1987, heard on 21st December, 1999.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Pre‑emption suit‑‑­Rule of sinker‑‑‑Application‑‑‑Exercise of revisional jurisdiction by High Court ‑‑‑Scope‑‑‑Vendee who was owner in Khata also associated with him other vendees who were strangers, thus, the vendee lost his right and sank to the status of a stranger‑‑‑Both the Courts below concurrently decreed the suit and appeal against decree also failed‑‑‑Where there was no misreading or non‑reading of any material piece of evidence, the concurrent findings of fact by both the Courts below could not be disturbed‑‑‑Judgments of both the Courts below were not interfered by High Court in circumstances.

Fazal Elahi v. Dewan Ali through Legal Heirs and others 1984 SCMR 1404 distinguished.

Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Mst. Fateh Bibi v. Ahmad Khan and 6 others PLD 1971 Lah. 171 and Sultan Muhammad and 3 others v. Nawab Khan and others PLD 1982 Lah. 568 ref.

Hafiz‑ur‑Rehman Mirza for Petitioners. Ch. Ali Muhammad for Respondents.

Date of hearing: 21st December, 1999.

2000 C L C 1485

[Lahore]

Before Jawwad S. Khaivaja, J

ALM (PVT.) LTD. through Chief

Executive‑‑‑Petitioner

versus

DIRECTOR‑GENERAL, EXCISE AND TAXATION, PUNJAB, MASSON ROAD, LAHORE

and 3 others‑‑‑Respondents ,, Writ Petition No. 10873 of 1999, decided on 5th August, 1999.

(a) Constitution of Pakistan (1973)‑‑­

‑‑‑‑Art. 199‑‑‑Cess on Private Educational Institutions Rules, 1998, R.10(2)‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑‑Remedy of departmental appeal or revision not availed‑‑‑Effect‑‑‑Recovery of educational cess‑‑‑Not reasonable to expect any functionary of Government Department to interpret the relevant statute in a manner which was different from that set. out by the Director‑General of the said Department and was endorsed by the Secretary of the Department‑‑‑Remedies of appeal and revision provided for in the Rules being inadequate and illusory Constitutional petition was maintainable without availing the departmental remedy.

Adamjee Insurance Company Ltd. v. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and others 1993 SCMR 1798 distinguished.

Messrs Chenab Cement Product (Pvt.) Ltd. v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672; Sky Rooms Ltd., Karachi v. Assistant Collector of Central Excise and Land Customs, Karachi PLD 1982 Kar. 244 and Collector of Customs, Lahore v. S.M. Ahmad & Company (Pvt.) Ltd. 1999 SCMR 138 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Punjab Finance Act (IX of 1997), S.9‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Interpretation of S.9 of Punjab Finance Act, 1997‑‑‑Recovery of Education. cess‑‑‑Two conflicting interpretations were put forth by the petitioner and the Government‑‑‑Effect‑‑‑Pronouncement of High Court on a question of law itself had become law for the Province until the same was varied by the Supreme Court or by legislation‑‑‑Where a pure question of law relating to the correct construction of S:9 of Punjab Finance Act, 1997, was involved, Constitutional petition before resorting to departmental remedies was competent.

(c) Punjab Finance Act (IX of 1997)‑‑‑

‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Interpretation of S.9 of Punjab Finance Act, 1997‑‑‑Recovery of educational cess‑‑‑Two interpretations were put forth, one by the petitioner and the other by the Government Department‑‑‑Effect‑‑‑Wording of S.9, Punjab Finance Act, 1997, did not make any mention of exemptions and the plain meaning of the section was to levy the educational cess only on such charges and fees received by a' private educational institution as were in excess of Rs.1,000 per month per student‑‑‑Demand raised by the Government Department on the entire amount of charges and fees received by such schools was illegal, void and of no legal effect.

Collector of Customs, Customs House, Lahore and 8 others v. Messrs S.M. Ahmad & Company (Pvt.) Ltd., Islamabad 1999 SCMR 138; Commissioner of Sales Tax, Central Zone, Karachi v. Crescent Pak. Soap and Oil Mills Ltd., Karachi 1986 PTD 238; Messrs Bisvil Spinners Ltd. v. Superintendent, Central Excise and Land Customs Circle, Sheikhupura and another PLD 1988 SC 370 and Central Cotton Mills Ltd. v. The Collector, Central Excise and Land Customs 1992 CLC 841 ref.

Aamar A. Raza Khan and Syed Ali Zafar for Petitioners (in Writ Petitions Nos. 12676 and 12685 of 1999).

Ashtar Ausaf Ali, A.‑G. with Ahmed Shahzad Rana for Respondent No.4.

Dates of hearing: 7th, 8th and 9th July, 1999.

2000 C L C 1493

[Lahore]

Before Mian Allah Nawaz and

Syed Zahid Hussain, JJ

Messrs NATIONAL BANK OF PAKISTAN, LAHORE‑‑‑Appellant

versus

MUHAMMAD AKRAM KHAN and 17 others‑‑‑Respondents

Regular First Appeal No.337 of 1998, heard. on 21st September, 1999.

(a) West Pakistan Civil Courts Ordinance (II of 1962)‑‑‑

‑‑‑‑S. 18(1)(a)‑‑‑Appellate forum, determination of‑‑‑Valuation of the suit as stated in the plaint was relevant and not the decretal amount, for determination of the appellate forum.

Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394; Sadar Din v. Elahi Bakhsh and another PLD 1976 Lah. 1; Muhammad Nawaz v. Sher Muhammad PLJ 1987 SC 262 and Ilahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 393 ref.

(b) Appeal (civil)‑‑‑

‑‑‑‑ Forum of appeal, changing of‑‑‑Effect‑‑‑Change of forum of appeal does not in any way impair any vested right of the party.

Adnan Afzal v. Sher Afzal PLD 1969 SC 167; Daraz Ali and others v. Nathu Khan 1982 CLC 2399 and Bashir v. Wazir Ali 1987 SCMR 978 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 96‑‑‑West Pakistan Civil Courts Ordinance (II of 1962), S.18(1)(a)‑‑­Appeal, forum of‑‑‑Suit for recovery of money was valued at Rs.1,38,869.13 whereas decree was passed for a sum of Rs.11,15,941.44‑‑‑Appeal was filed before High Court‑‑‑Validity‑‑‑Where value' of the original suit was Rs.1,38,869.13 and the same did not exceed Rs.2,00,000 appeal was not competent before High Court‑‑‑Appeal was returned for prosecution before the proper forum in circumstances.

Muhammad Akbar Gill for Appellant. Malik Waqar Saleem for Respondents.

Date of hearing: 21st September, 1999'.

2000 C L C 1518

[Lahore]

Before Jawwad S. Khawaja, J

MUSHTAQ AHMAD alias MASTAY KHAN

and another‑‑‑Petitioners

versus

AHMAD YAR and 9 others‑‑‑Respondents

Civil Revision No.466‑D of 1999., heard on 19th November, 1999.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Preamble & S.3‑‑‑Law of limitation sets out rules of governance and administration which have the effect of preventing Court from providing legal redressal of rights through judicial process even where such rights subsist.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14 & 17‑‑‑Limitation Act (IX of 1908), Art. l78‑‑‑Award, filing of‑‑­Limitation‑‑‑Award was made in presence of both‑ the parties‑‑‑Period of limitation had started from the date of knowledge of the award or from the notice given by the arbitrator under S.14(1), Arbitration Act, 1940‑‑‑Lower Appellate Court dismissed appeal on the ground that application of the petitioner was barred by time as the same was filed after period of 90 days as prescribed under Art. 178 of Limitation Act, 1908‑‑‑Validity‑‑‑In order to non‑suit a party on the technical ground of limitation, procedural and ministerial requirements of a separate written notice, independent of knowledge of the making of the award, were required‑‑‑Findings of Lower Appellate Court that period of limitation started from the date when the parties had knowledge of the making of the award, was based on a legal premise which did not accord with the wording of Art. 178, Limitation Act, 1908‑‑‑Order of Lower Appellate Court was set aside, as application under Ss. 14 & 17 of Arbitration Act, 1940 was not barred by time.

Muhammad Shafi and others v. Muhammad Sabir and others PLD 1960 Lah. 591 fol.

Aish Muhammad Khan Sava for Petitioners. Bashir Ahmed Chaudhry for Respondents.

Dates of hearing: 18th and 19th November, 1999.

2000 C L C 1521

[Lahore]

Before Maulvi Anwarul Haq, J

Hafiz GHULAM SARWAR and others‑‑‑Petitioners

versus

IMAM BAKHSH and others‑‑‑Respondents

Civil Revision No.75/D and Civil Miscellaneous No. 1‑C of 2000, decided on 15th February, 2000.

Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑S.122‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Gift of corpus‑‑‑Proof‑‑‑Suit for declaration‑‑­Plaintiffs/respondents had claimed that sale of suit land in favour of father of defendants/petitioners was Benami and plaintiffs were joint owners of the suit land‑‑‑Plaintiffs had further contended that defendants had executed a gift deed in respect of land in question in favour of plaintiffs‑‑‑Defendants had admitted execution of gift deed, but had asserted that it was only a gift of usufruct and not gift of corpus‑‑‑Gift deed executed in favour of plaintiffs clearly showed that gift was complete corpus gift‑‑‑Appellate Court below, in circumstances, had rightly declared plaintiffs as absolute owners in occupation of suit land vide gift of corpus or complete gift.

Mst. Khan Bibi v. Mst. Safia Begum and others PLD 1969 Lah. 338 and Abdul Hamid and 23 others v. Muhammad Mohyuddin Siddique Raja and 3 others PLD.1997 SC 730 ref.

Hakim Amir Bakhsh Awan for Petitioners.

2000 C L C 1532

[Lahore]

Before Maulvi Anwarul Haq, J

FIRDOS HUSSAIN SHAH‑‑‑Petitioner

versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE‑‑‑Respondent

Writ Petition No. 5141/Rev of 1996, heard on 8th February, 2000.

West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 164‑‑‑Land Reforms Regulation, 1972 (M.L.R.115), para. 25‑‑­Provisions for Restoration of Tenancies of Tenants Ejected in Unauthorised Manner under Notification No.LH‑III‑393‑77/947‑LC, dated 9‑3‑1977, para. 3(3)=‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Unauthorised ejectment ‑‑‑Restoration of possession ‑‑‑Revision‑‑­Competency‑‑‑Petitioner who allegedly was ejected unauthorisedly from land in question, filed application for restoration of possession under "Provision for Restoration of Tenant Ejected in Unauthorised Manner" made vide Notification No I,H‑III‑393‑77/947‑LC, dated 9‑3‑1977 which was finally allowed by the Commissioner‑‑‑Revision filed against order of Commissioner was accepted by Member, Board of Revenue and order of Commissioner was suspended‑‑‑Validity‑‑‑Contention of petitioner was that Member, Board of Revenue had no jurisdiction to entertain revision against order of Commissioner because according to para. 3(3) of said Scheme only tenant could file revision‑‑‑Memo of revision filed before Member, Board of Revenue though had narrated that revision had been filed under S.164 of West Pakistan Land Revenue Act, 1967, but mere wrong mention of provision of ‑law would not affect merits of proceedings‑‑‑Revision was competent under para.25(7) of Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑Constitutional petition filed against judgment of Board of Revenue passed in revision, was dismissed in circumstances.

Lucas alias Luci and others v. S.M. Nasim, Member (Revenue), Board of Revenue, Punjab, Lahore and another PLD 1984 SC 227; Haji Samad Khan v. Khalid Khan 1985 SCMR 770 and Haji Jam Rose Khan v. Wazir Muhammad and others 1992 SCMR 2103 ref.

Ijaz Baig Mirza for Petitioner.

Nemo for Respondent .

Date of hearing: 8th February, 2000.

2000 C L C 1543

[Lahore]

Before Maulvi Anwarul Haq, J

ASIAN CONSTRUCTION CO. (PVT.) LTD. ‑‑‑Petitioner

versus

GOVERNMENT OF THE PUNJAB through Secretary, Communications and Works Department Civil Secretariat, Lahore and 3 others‑‑‑Respondents

Writ Petition No.2245 of 2000, heard on 15th March, 2000.

Punjab Delegation of Financial Power Rules, 1950‑‑‑

‑‑‑‑R. 3 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 109 ‑‑‑ Constitutional petition‑‑‑Rejection of tender‑‑‑Respondent, Executive Engineer invited tenders from approved Government contractors for work of construction‑‑­Tender filed by petitioner despite being lowest was not approved by Superintending Engineer and was returned to Executive Engineer directing him to re‑invite tenders‑‑‑Petitioner‑contractor filed Constitutional petition against order re‑inviting tenders contending that only Chief Engineer could make decision regarding acceptance or rejection of tenders‑‑‑Tenders were invited by Executive Engineer and in notice of tender it was clearly stated that Authority inviting tenders reserved into himself right to reject any or all tenders without stating any reason‑‑‑Superintending Engineer or even Executive Engineer according to Departmental practice and instructions. could reject the tender‑‑‑Chief Engineer, according to the relevant Rules had power to accept a tender for work of value exceeding‑ Rs.50,00,000, but it was not the case where a tender had been accepted, but it was case of rejection of tender which was to be done by the Executive Engineer‑‑‑Authorities in rejecting tender of petitioner and re‑inviting tender thus, had not violated Punjab Delegation of Financial Power Rules, 1990.

Mian Abbas Ahmad for Petitioner.

Ghulam Murtaza Malik for Respondents.

Date of hearing: 15th March, 2000.

2000 C L C 1551(1)

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD HANIF‑‑‑Petitioner versus

Mst. ROBINA KAUSAR‑‑‑Respondent

Civil Revision No.609‑D of 1999, decided on 7th March, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Delay in filing revision‑‑­Condonation of‑‑‑Revision petition was time‑barred and petitioner had filed application under S.5, Limitation Act,, 1908 for condonation of delay‑‑­Provisions of S.5 of Limitation Act, 1908 being not applicable to revision petition, delay in filing revision petition could not be condoned under S.5, Limitation Act, 1908.

Mian Arshad Latif for Petitioner.

Muhammad Zakriya Sheikh for Respondent .

2000 C L C 1582

[Lahore]

Before Jawwad S. Khawaja, J

Haji MUHAMMAD SAEED‑‑‑Petitioner

versus

MUNICIPAL CORPORATION, CHICHAWATNI through Administrator and another‑‑‑Respondents

Writ Petition No. 11894 of 1999, heard on 14th March, 2000.

Punjab Local Councils (Taxation) Rules, 1980‑‑‑

‑‑‑‑Rr. 3 to 9‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Imposition of licence fee without advertisement‑‑‑Licence fee was imposed on "Arhaties" (Dealers or Commission Agents) dealing in hides and skins without advertising the scheme or proposal for levying said licence fee as required under Rr.3 to 9 of Punjab Local Councils (Taxation) Rules, 1980‑‑‑Validity‑‑‑Mandatory provisions of law for imposing licence fee having not been complied with, imposition of licence fee was declared to be illegal by High Court in exercise of Constitutional jurisdiction.

Rauf Trading Company Ltd. v. Faisalabad Municipal Corporation 1990 CLC 1732 ref.

Muhammad Zakria Sheikh for Petitioner.

Ch. Muhammad Nawaz for Respondents.

Date of hearing: 14th March, 2000.

2000 C L C 1589

[Lahore]

Before Ch. Ijaz Ahmad, J

IQTADAR KARAMAT CHEEMA‑‑‑Petitioner

versus

THE UNIVESITY OF THE PUNJAB through

Vice‑Chancellor, Lahore and 4 others‑‑‑Respondents

Writ Petition No.5509 of 2000, heard on 5th April, 2000.

Locus Poenitentiae, principle of‑‑‑

‑‑‑‑Applicability‑‑‑Candidate who appeared in B.A. Examination secured total 476 marks out of 800 by obtaining 87 marks in English out of 200 and 138 marks out of 200 in subject of History‑‑‑University sent invitation to candidate to attend Convocation as he was entitled for award of gold medal in subject of History at the Convocation‑‑‑Such invitation was subsequently withdrawn by University on ground that gold medal would be awarded to candidate who had first position in B.A. History and first position in B.A. English‑‑‑Validity‑‑‑Even if letter of invitation was issued by University under mistake, principle of locus poenitentiae was attracted to the extent of that candidate‑‑‑Once letter of invitation was issued to candidate by University Authorities and was received by the candidate, principle of locus poenitentiae was attracted in all respects and University Authorities had no authority to withdraw the same.

Farid Ahmad's case 1968 SCMR 88 and Themas and 16 others v. Dawar Khan PLD 1990 SC 629 ref.

Shaukat Rafique Bajwa for Petitioner. Raza Farooq, Legal Advisor for Respondents.

Date of hearing: 5th April, 2000.

2000 C L C 1598

[Lahore]

Before Malik Muhammad Qayyum

and Jawwad S. Khawaja, JJ

GOVERNMENT OF PAKISTAN‑‑‑Appellant

versus

Messrs ALLAH BAKHSH‑‑‑Respondent

Regular First Appeal No.245 of 1994, decided on 1st June, 1999

Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S. 7(iv)(f)‑‑‑Suits Valuation Act (VII of 1887), S.8‑‑‑Civil Procedure Code (V of 1908), S.96 & O.VII, Rr.2, 10‑‑‑Suit for rendition of account‑‑­Valuation of suit for purpose of court‑fee and jurisdiction of Court‑‑‑Return of memorandum of appeal‑‑‑Value of suit for purposes of court‑fee and jurisdiction was fixed at Rs.200 in the plaint‑‑‑Trial Court while passing preliminary decree had observed that suit fell under S.7(iv)(f) of Court Fees Act, 1887 and valuation as given in the plaint, though was correct, but plaintiff would be liable to court‑fee on amount found due from defendant/appellant at the time of passing of final decree‑‑‑Appellate Court on appeal against said preliminary decree, set aside finding of Trial Court on issue of court‑fee holding that suit amount being, Rs.8,00,000 suit for purposes of court‑fee and jurisdiction should have been valued, according to suit amount and sent case to Trial Court for ordering plaintiff to make up the deficiency in court‑fee‑‑‑Plaintiff paid additional fee on the plaint, but when case was resubmitted to Appellate Court it r‑turned memo. of appeal holding that court‑fee having been fixed at Rs.8,00,000, it had no jurisdiction to hear appeal on that amount and same could be heard by High Court ‑‑‑Validity‑‑­Value of suit for purposes of court‑fee and jurisdiction having been fixed at Rs.200 in the plaint, Appellate Court below was not justified in holding that value for purposes of court‑fee was Rs.8,00,000 and that appeal lay to High Court‑‑‑Plaintiff, according to S.7(iv)(1) of Court Fees Act, 1870, was entitled to fix notional value for purpose of court‑fee which, according to S.8 of Suits Valuation Act, 1887, would also be the value for jurisdiction and not the value which plaintiff was required by O.VII, R.2, C.P.C. to state an approximate amount which according to him would be payable by defendant‑‑‑Forum of appeal was dependent not on amount mentioned under O.VII, R.2, C.P.C. but on valuation fixed by plaintiff for purposes of court­fee and jurisdiction‑‑‑When a final decree was passed only then the Court could require plaintiff to pay difference between court‑fees actually paid and fee which would have been payable on the amount decreed‑‑‑Appeal having been filed against preliminary decree, at that stage valuation could not be finally determined‑‑‑Appeal, in circumstances, lay to Appellate Court below and not to the High Court‑‑‑Memorandum of appeal which was returned illegally, was directed to be returned to Appellate Court below to be decided according to law.

Muhammad Ramzan and another v. Nazir Ahmad and 2 others 1979 CLC 95 and Megh Raj v. Rupchand Uttand Chand AIR 1946 Lah. 280 ref.

Sheikh Anwar‑ul‑Haq, Dy.A.‑G. for Appellant. Ch. Inayat Ullah for Respondent.

Date of hearing: 1st June, 1999.

2000 C L C 1602

[Lahore] .

Before Mian Saqib Nisar, J

Ch. AMAN ULLAH‑‑‑Petitioner

versus

CHIEF ADMINISTRATOR, AUQAF, LAHORE‑‑‑Respondent

Civil Revision No.553, First Appeal from Order Nos.90 and 91 of 1993, decided on 3rd April, 2000.

Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑‑‑Ss. 7 & 11‑‑‑Declaration of property as "Waqf property" ‑‑‑Notification whereunder property was declared as Waqf property had been challenged by petitioner contending that property was not Waqf property as in Revenue Record he had been shown as owner in column of ownership and that it was never dedicated for any religious or charitable purpose‑‑‑Revenue Record produced had shown that property was "Ghair Mumkin Qabrestan" and "Khanqah" which was already attached to Khanqah and was being used for religious and charitable purpose recognized by Islam‑‑‑Property in dispute being proved to be a graveyard being used for public purpose as part of Khanqah, since time immemorial, express dedication in respect of said property was not necessary‑‑‑Notification issued under S.7 of Punjab Waqf Properties Ordinance, 1979, declaring property as Waqf, being in accordance with law could not be interfered with.

Pir Rashid‑ud‑Daula v. Chief Administrator, Auqaf PLD 1971 SC 401 and Faqir Muhammad Khurshid and others v. Chief Administrator, Auqaf PLD 1987 SC 60 ref.

Azam S. Soharwardi for Petitioner. Raja Muhammad Arif for Respondent. Muhammad Hussain Awan, Advocate.

Date of hearing: 14th March, 2000.

2000 C L C 1605

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

MUHAMMAD PERVEZ‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Writ Petition No.7946 of 2000. decided on 5th May, 2000, (a) Muhammadan Law‑‑‑

Legitimacy of child‑‑‑Presumption‑‑‑Two children were born during existence of inarriage of spouses‑‑‑Husband had alleged that one of the two children was illegitimate and it was not born in wedlock. If husband was so sure that child was illegitimate he could have pressed in Court for D.N.A. test or he could have brought other evidence on record to prove that the child was illegitimate‑‑‑Mere registration of F.I.R. against wife was no proof for alleged fornication committed by wife‑‑‑Evidence produced on record had shown that wife was living in house of husband in early days of pregnancy‑‑‑ Evidence produced by husband on record in respect of alleged illegitimacy of child had been proved to be not confidence inspiring and untrustworthy‑‑­Effect‑‑‑Islam had put great emphasis on sacred right of reputation of a person in the society especially of women, the weaker vessel‑‑‑Strictest. possible mode of scrutinising evidence of truthful witnesses, who had not committed minor sin and also the major sin, was required to prove allegation of Zina‑‑‑Any child being born after six months of wedlock, would be a legitimate child unless otherwise proved by solid evidence‑‑‑Disclaimer of legitimacy of child having not been proved with cogent and reasonable evidence, Courts below had rightly .found child to be legitimate‑‑­Constitution of Pakistan (1973), Art. 199.

(b) Muhammadan Law‑‑

‑‑‑‑ Legitimacy of child‑‑‑Determination‑‑‑Legitimacy of a child had to be determined in line with Islamic principles‑‑‑Paternity was to be established by marriage between parents of child‑‑‑Child born after six months from date of marriage and within two years of termination of marriage was presumed to be legitimate child under Sunni Law while in Shia law a little variation existed in respect of the period‑‑‑Starting point for counting six months was the date on which marriage was consummated and other limit was that of ten months from dissolution of the marriage‑‑‑Where legitimacy of child was questioned, primary evidence was of the mother of child who was the best person to testify that child was legitimate issue from her husband‑‑Whenever such evidence was proved to be disinterested, independent and impartial, it was always believed by the Court being truthful, trustworthy and confidence inspiring‑‑‑Discharge of negative onus was placed on father‑‑‑On establishment of paternity of child, legitimacy was also established‑‑‑Point of conception of pregnancy was essential during valid continuance of ‑,lawful wedlock‑‑‑In case of legitimate and valid marriage father was bound to take immediate step as soon as he came to know of any alleged adultery committed by his wife and he disclaimed child, the matter would be taken under principle of law.

Muhammad Ishaque v. Nadeem Ahmad PLD .1987 Azad J&K 1; Ashrufooddowla v. Hyder Hossain 11 MIA 93, 113 and Nasir Fatima v. Ghulam Fatima 1987 CLC 2073 ref.

Ch. Muhammad Rafiq Waraich for Petitioner. .

2000 C L C 1611

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs JAVED & CO. ‑‑‑Petitioner

versus

Messrs DAEWOO PAKISTAN MOTORWAY SERVICES LTD.

through Chief Executive‑‑‑Respondent

Civil Revision No.831 of 2000, decided on 28th April, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑Revisional jurisdiction, exercise of‑‑‑Suit for declaration with permanent injunction‑‑­Maintainability‑‑‑Both Courts below had given concurrent findings of fact against plaintiff/petitioner that suit for declaration with permanent injunction filed by plaintiff/petitioner was not maintainable‑‑‑Lease period having already expired, petitioner had alternative remedy to file suit for damages against defendant/respondent‑‑‑Concurrent findings of Courts below, were upheld by High Court in revision.

Sindh Industrial Trading Estate Ltd. v. Kemia Industries Ltd. 1999 CLC 1076 ref.

(b) Transfer of Property Act (IV of 1882)‑

‑‑‑‑S. 105‑‑‑Easements Act (V of 1882), Ss. 4, 52 & 60‑‑‑"Licence" or "lease"‑‑‑Determination‑‑‑Agreement executed between the parties whereunder petitioner was permitted to carry on business for a particular period having already expired, same would neither create lease in favour of petitioner within meaning of S.105 of Transfer of Property Act, 1882 nor would contemplate an easement as defined in S.4 of Easements Act, 1882‑‑‑ Said agreement could not be recorded as an irrevocable licence within meaning of S.60, Easements Act, 1882, but would amount to revocable licence within meaning of S.52 of the said Act and could be revoked by grantor.

Abdullah Bhai and others v. Ahmed Din PLD 1964 SC 106 and M.A. Naser v. Chairman; Pakistan Eastern Railways and others PLD 1965 SC 83 ref.

(c) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & 54‑‑‑Discretionary reliefs, grant of‑‑‑Court not to grant discretionary reliefs in such cases where they were liable to be frustrated by Authorities concerned by passing a fresh order or where they would lead to injustice or clothe a suitor with an undeserving advantage or would inflict unjustified loss on the department‑‑‑Necessary incident in the trial of judicial issues was that a suit which was on face of it incompetent under the law, should not be allowed to further encumber legal proceedings.

(d) Words and phrases‑‑‑

‑‑‑‑ Terms "licence" and "lease "‑‑‑Points of demarcation and distinction elaborately discussed.

Abdullah Bhai and others v. Ahmed Din PLD 1964 SC 106 ref.

M. Ramzan Chaudhry for Petitioner.

2000 C L C 1626

[Lahore]

Before Mian Saqib Nisar, J

RESHAM BIBI and 2 others‑‑‑Petitioners

versus

FAZAL through Legal Heirs‑‑‑Respondent

Civil Revision No.471‑D of 1998, decided on 9th May, 2000.

West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑Ss. 135 & 172(2)(xviii)‑‑‑Civil Procedure Code (V of 1908), 5.115‑‑‑Suit for partition‑‑‑Jurisdiction of Civil Court‑‑‑Suit for partition of land which had attained character of village immovable property, was allowed by Civil Court through preliminary decree holding that plaintiff was owner to the extent of 1/4th share‑‑‑Appellate Court found that the property including certain other Khasra numbers which was jointly held by parties had attained character of residential property and directed the plaintiff to include the said Khasra numbers also in partition and remanded the case ‑‑‑Validity‑‑‑Khasra numbers directed to be included by Appellate Court being agricultural land, Civil Court had no jurisdiction in respect thereof whereas land subject‑matter of suit was a built up property both properties, therefore, could not be joined in one suit‑‑‑Appellate Court below having committed jurisdictional error, in passing the judgment and decree, same were set aside by High Court and case was remanded to be decided afresh.

1997 SCMR 1792 ref.

Mehdi Khan Chohan for Petitioners. Shahid Hussain Qadri for Respondents.

Date of hearing: 9th May; 2000.

2000 C L C 1633

[Lahore]

Before Mian Allah Nawaz

and Ch. Ijaz Ahmad, JJ

Maj. (Rtd.) HAMID ALI KHAN‑‑‑Appellant

versus

Mian MUHAMMAD ANWAR ‑‑‑Respondent

Regular First Appeal No. 140 of 1992, decided on 29th April, 2000.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), S.2(2)‑‑‑Suit for specific performance of contract‑‑‑Preliminary decree‑‑‑Power of Court passing preliminary decree‑‑‑Original decree passed in suit for specific performance of contract which was conditional one was in the nature of preliminary decree‑‑‑Court which had passed decree would retain control over decree after passing the same and said Court would not become functus officio, but would retain control over the action‑ ‑‑Trial Court, in case of preliminary decree, would have ample jurisdiction to extend time for depositing remaining decretal amount in favour of judgment‑debtor‑‑‑Once order to extend time for depositing remaining decretal amount was passed, there would be no default on part of decree‑holder if said amount was deposited within extended time and decree would be valid and intact in favour of decree‑holder.

Inayatullah Begum's case PLD 1996 Lah. 582; Chaturbhuj Bhovanidas's case AIR 1927 Bom. 239; Abdul Shaker's case AIR 1923 Mad. 284; AIR 1937 Nag. 279; Shah Wali's case PLD 1966 SC 983; Messrs Ansari Brother's case PLD 1971 SC 700; Khurshid Akbar v. Mian Manzoor Ahmad 1982 SCMR 824; Muhammad Riaz Qamar's case 1985 CLC 474; Muhammad Shamoon's case PLD 1984 SC (AJ&K) 94; Union Eagle Ltd.'s case (1997) 2 All ER 215; Nizamud Din's case 1987 CLC 1682; M. Ismail's case PLD 1997 Lah. 177; Amjad Malik's,case 1992 MLD 31; Ashraf Ali's case PLD 1967 Dacca 1557; Muhammad Rafique Khan's case 1992 CLC 822; Ch. Abdul Rashid's case PLD 1959 Lah. 224; Mian Irshad Ali's case PLD 1975 Lah. 7; Rashid Ihsan's case PLD 1989 SC 146; Fazal Hussain's case 1998 MLD 974; Mian Muhammad Akram's case 1989 CLC 15; Muhammad Akhtar's case 1981 SCMR 878; Fazal‑ur‑Rehman's case 1987 SCMR 1036; Muhammad Yasin's case 1991 MLD 2295; Bashir Ahmad's case 1987 CLC 1862; Sindh Road Transport Corporation's case 1989 ALD 399; Kisan Dawoloo Mali's case AIR 1939 Nag. 279; AIR 1946 Nag. 29; Nisar Ahmad's case PLD 1994 Lah. 280; PLD 1960 Pesh. 37 and Mansab Ali's case PLD 1971 SC 124 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R.11‑‑‑Rejection of plaint‑‑‑Where plaintiff had concealed material facts in contents of plaint from the Court, material produced in evidence/document by way of , filing written statement or alongwith application under O.VII, R.11, C.P.C. could also be kept in mind for rejecting the plaint.

Muhammad Akhtar's case 1981 SCMR 878; Mian Muhammad Akram's case 1989 CLC 15 and Muhammad Yasin Khan's case 1991 MLD 2295 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VII, R. 11 & S.96‑‑‑Rejection of plaint‑‑‑Appeal‑‑‑Appellant having failed to point out any material irregularity or illegality committed by Trial Court in rejecting plaint, appeal against said order had no merits.

M. Saleem Sehgal for Appellant. Muhammad Ghani and Ms. Shagufta Anwar for Respondent.

Date of hearing: 15th December, 1999.

2000 C L C 1643

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD IQBAL KHAN‑‑‑Petitioner

versus

MUKHTAR AHMAD KHAN‑‑‑Respondent

Civil Revision No. 344 of 2000, decided on 19th May, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.' 115 & O. IX, R.13‑‑‑Punjab Pre‑emption Act (IX of 1991), S.6‑‑‑Suit for pre‑emption ‑‑‑Ex parte decree, setting aside of‑‑‑Suit having been decreed ex parte for non‑appearance of defendant, application under O.IX, R.13, C.P.C. for setting aside ex parte decree was filed by defendant contending that he was not duly served as plaintiff who had given wrong address of defendant had with connivance of process‑server, procured wrong report and marked his fictitious and forged signatures and had committed fraud on the Court‑‑‑Trial Court, after recording evidence of parties, dismissed application for setting aside ex parte decree, but Appellate Court reversed order of Trial Court and after setting aside ex parte judgment and decree passed by Trial Court remanded the case to be decided on merits ‑‑‑Validity‑‑­Statement of process‑server with regard to service of summons on defendant did not inspire confidence and his statement could not prove that defendant was duly served‑‑‑Appellate Court had rightly disbelieved evidence of process‑server for sound reasons and judgment of Appellate Court could not be interfered with‑‑‑Law favoured adjudication of dispute brought in Court on merits‑‑‑All efforts should be made to decide matter on merits instead of knocking out the parties on technical grounds.

Noor Muhammad v. Jamal Din and others 2000 CLC 305; Mst.. Jap Subhai v. Allah Diwaya and others 1992 MLD 1635; Madan Gopal and others v. Maran Bepari and 3 others PLD 1969 SC 617; Sultan MUhammal. v. Mst. Hamida Begum and 18 others 1970 SCMR 466; Hafiz Muhammad Hussain and another v. Abbas Khan and .another 1981 SCMR 1233; Muhammad Azeem v. Muhammad Yousaf and others 1985 CLC 2912 and Muhammad Faryad v. Muhammad Asif PLD 1993 Lah. 469 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ All efforts should be made to decide case on merits instead of knocking out parties on technical grounds.

Hafiz Muhammad Hussain and another v. Abbas Khan and another 1981 SCMR 1233 ref.

Rizwan Mushtaq for Petitioner. . Ameer Abdullah Khan Niazi for Respondent.

2000 C L C 1648

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

SALEEM ULLAH‑‑‑Petitioner

versus

ABADAT ALI MALIK and others‑‑‑Respondents

Writ Petition No.7551 of 2000, decided on 3rd May, 2000.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 13(3) & (4)‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss.80 & 4(7)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Decree of maintenance allowance‑‑‑Execution of‑‑‑Liability of surety‑‑‑Suit for maintenance allowance having been decreed, decree‑holder sought execution of said decree‑‑‑House, of which judgment‑debtor was owner up to one‑third share, was put to auction for recovery of decretal amount as recovery of land revenue‑‑‑Petitioner appeared as surety of judgment‑debtor before Court Auctioneer and undertook to pay decretal amount to decree­holder which undertaking was accepted on behalf of decree‑holder‑‑­Petitioner/surety had subsequently, contended that he, not being a party to judgment and decree passed by Court, could not be held liable to pay the decretal amount ‑‑‑Validity‑‑‑Decretal amount having been assessed as Land Revenue, provisions of S.80 of West Pakistan Land Revenue Act, 1967 were applicable and petitioner being surety having made himself bound to pay decretal amount, was responsible for payment of said amount.

Muhammad Iqbal Wehniwal for Petitioner.

2000 C L C 1651 .

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HUSSAIN and 33 others‑‑‑Petitioners

versus

SABBIR ALI KHAN and 9 others‑‑‑Respondents

Civil Revision No.381‑D of 1996, heard on 7th March, 2000.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑

‑‑‑‑Ss. 2 & 3‑‑‑West Pakistan Rehabilitation and Settlement) Scheme, Paras. 4(A)(viii) & 31(ix)‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 14‑B [as added vide Displaced Persons (Land Settlement) (Amendment) Act (XXXVI of 1974)]‑‑‑Allotment of land to occupancy tenant‑‑‑Petitioners who were occupying land in dispute subject to payment of one‑third share of produce to landlord were declared to be owners of two ­third share in the land and remaining one‑third was continued to be occupied by them‑‑‑Such position continued till enforcement of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975‑‑‑Remaining one‑third of land having never been allotted to anyone, entire land was in occupation of petitioners as occupancy tenants at the time of enforcement of said Act‑‑­Land having stood vested in Government on enforcement of Evacuee Property and Displaced Persons (Repeal) Act, 1975 same had to be disposed of in accordance with provisions of said Act which had laid down that in the first instance it was the right of occupants of land to purchase same on payment of price at prescribed rate‑‑‑Petitioners who were in possession of entire land were entitled to be offered said land 'for purchase‑‑­Petitioners having deposited price of said land at prescribed rate, Authorities were not justified to transfer land to predecessor of respondents dismissing suits of petitioners‑‑‑Authority having failed to exercise jurisdiction vested in it, orders of Authority were set aside and suit filed by petitioners was decreed by High Court in exercise of revisional jurisdiction.

Mirza Manzoor Ahmad for Petitioners. Mian Arshad Latif for Respondents.

Date of hearing: 7th March, 2000.

2000 C L C 1656

[Lahore]

Before Mian Saqih Nisar, J

MUHAMMAD USMAN and another‑‑‑Appellants

versus

KAUSAR BEGUM‑‑‑Respondent

Second Appeal from Order No.275 of 1999, heard on 7th March, 2000.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 2(c)(i), 13(3)(ii) & 13‑A‑‑‑Relationship of landlord and tenant‑‑­Transfer of ownership‑‑‑Original owner of shop i n question had transferred the same through sale to her daughter‑‑‑Daughter of original owner, who had become landlady of the shop, had served the tenant with notice of change of ownership under S.13‑A of West Pakistan Urban Rent Restriction Ordinance, 1959 and tenant, after receiving said notice, started tendering rent to landlady through money order‑‑‑Tenant, who had acknowledged transfer of shop in question in favour of landlady, had no right or locus standi to challenge validity of transaction of sale of shop in question in her favour alleging that said transfer through sale was "Benami" in nature‑‑­Relationship of landlord and tenant having come into existence between parties, ejectment proceedings against tenant were maintainable.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(3)(ii)‑‑‑Bona fide personal need of landlady‑‑‑Son of landlady for whom shop in dispute was required to start his own business, was of such age that he could conduct his business independently‑‑‑Son of landlady had no other shop in his possession suitable for his need‑‑‑Other shop was in possession of her husband where her son was simply extending helping hand to him and it could not be said, in circumstances, that son of landlady did not require shop to establish his own business independently simply because he was working with his father‑‑‑Tenant neither in his written statement nor in evidence had been able to establish facts militating against personal bona fide requirement of son of landlady‑‑‑Landlady had stated in Court that if her son would not occupy shop in question for purpose of starting his business therein, she not only would surrender possession of shop to tenant, but also would pay penalty‑‑‑Courts below, in circumstances. had rightly concluded that, landlady had proved her personal bona fide need in respect of the shop‑‑­Concurrent judgment of Courts below based on evidence on record, could not be interfered with in second appeal in.

Shahid Hussain Qadri for Appellants.

Waqar Ahmad Khan for Respondent.

Date of hearing: 7th March, 2000.

2000 C L C 1660

[Lahore]

Before Muhammad Nawaz Abbasi, J

Messrs UNITED REFRIGERATION INDUSTRIES

(PVT.) LTD. through General Manager‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN through

Secretary, Ministry of Finance, Government of

Pakistan, Islamabad and another‑‑‑Respondents

Writ Petitions Nos.964 and 1311 of 1998, heard on 20th January, 2000.

(a) Customs Act (IV of 1969)‑‑‑ .

‑‑‑‑S. 19‑‑‑Notification No.S.R.O. No.504(1)/90, dated 7‑6‑1990‑‑‑Customs General Order No.7 of 1998‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Withdrawal of exemption in customs duty under S.R.O. No.504(11/90. dated 7‑6‑1990 through Customs General Order No.' of 1998‑‑‑Validity‑‑‑Exemption was given in import of "compressors" for the reason that the same were not being manufactured in the country and were not available in the market‑‑‑Such concession was withdrawn firstly for the reason that a local industrial unit had started manufacturing the compressors and secondly the compressors in "knocked down condition" were to be imported‑‑‑Withdrawal of the concession, by the Authorities, without ensuring availability of locally made compressors in the market on mere presumption that the same were available in the market, was not justified‑‑­Without technical interpretation of the term "knocked down condition", withdrawal of the concession through Customs General Order was violative of S.R.O. No.504(1)/90, dated 7‑6‑1990 and such withdrawal was of no consequence‑‑‑Interpretation of notification by the Authorities under which the compressors were being imported on concessionary duty through the said Customs General Order was against the spirit of the Scheme and policy of law‑‑‑Petitioner was entitled to the concession of Customs duty under S.R.O. No.504(1)/90, dated 7‑6‑1990 which was illegally refused on the basis of Customs General Order No.7, dated 24‑3‑1998 in circumstances:

(b) Customs Act (IV of 1969)‑‑‑‑

‑‑‑‑Ss. 20 & 21‑‑‑Customs General Order, issuance of‑‑‑Purpose‑‑‑Customs General Order is issued for guidance of field staff to achieve the purpose of the statute‑‑‑Where such departmental instructions are in conflict with the statutory law or tends to undo any such law, then the same has no legal effect.

Waqar Azeem for Petitioner. Farhat Nawaz Lodhi for Respondents.

Date of haring: 20th January, 2000.

2000 C L C 1684

[Lahore]

Before Ch. Ijaz Ahmad, J

Miss SHAZIA UMAR CHOUDHRY‑‑‑Petitioner

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD through

Chairman and 2 others‑.‑‑Respondents.

Writ Petition No.5787 of 2000, heard on 18th April, 2000.

(a) Educational institution‑‑‑

‑‑‑‑ Cancellation of result by Education Board alleged to have been prepared by unfair means‑‑‑Candidate was afforded proper opportunity of hearing and to appear before Chairman of the Board of Intermediate and Secondary Education before cancellation of result but she failed to appear ‑‑‑Effect‑‑­Candidate having failed to appear and explain her position. result was rightly cancelled by the Board in circumstances.

Muhammad Afzal v. Munir Nabi Khan and 6 others PLD 1995 Quetta 50 ref.

(b) Educational institution‑‑‑‑

‑‑‑‑ Cancellation of result by Education Board alleged to have been prepared by unfair means‑‑‑Opportunity of being heard‑‑‑Where the Board simply sought to correct a mistake viz., to cancel an earlier declaration that candidate had passed the examination which was wrong because marks of the candidate were below minimum or a candidate had secured admission through a fraudulent device. Board was not obliged to offer an opportunity of being heard in circumstances.

Sureshi v. Berhunpur University AIR 1987 , Orissa 38; U.P.J.D.A.C. v. Nandwani (1990) 4 SCC 633 and Saeed Ahmad Khan's case PLD 1974 SC 151 ref.

(c) Educational institution‑‑‑

‑‑‑‑Cancellation of result by the Board alleged to have been prepared by unfair means‑‑‑Candidate appeared in F.Sc. Examination and got admission in medical college‑‑‑Board of Intermediate and Secondary Education issued a show‑cause notice to the candidate that result was ‑ found to be bogus‑‑­Candidate neither replied the show‑cause notice nor she appeared before the Chairman of the Board, in response to opportunities provided to her for hearing‑‑‑Ex parte decision was taken by the Chairman of the Board and result of the candidate was cancelled‑‑‑Validity‑‑‑External result sheet and conterfoils/award lists were verbatim and had proved the position of the Board‑‑‑High Court had seen the same which were in due course‑‑No justification existed to doubt the authenticity of such record‑‑‑Evidence of unfair means in the case of candidate was perfectly plain and transparent and candidate was beneficiary of the change in the marks‑‑‑No specific mala fide was pointed out against the Authorities ‑‑‑High Court pointed out some loopholes in the system of examination conducted by the Board which needed to be immediately plugged to attach a respectable status to the academic certificates issued by the Board‑‑‑High Court observed that Board could take recourse to criminal or disciplinary action, where any of its employee was found to be guilty in preparation or issuance of bogus certificates or other certificates of such kind and directed the Provincial Government to look‑ into the matter as to what was happening in the Boards and Universities‑‑‑Deep concern was also shown by the High Court that the students were penalized ultimately but no action was taken against the culprits who were instruments to provide facilities to the students to obtain bogus certificates‑‑‑Constitutional petition of the candidate was dismissed.

Irfan Nadir v. University 1996 CLC 550; Akhtar Ali's case 1979 SCMR 549; Haider Ali v. B.I.S.E. 1999 YLR 1243; Suleman Riaz Chaudhry v. B.I.S.E. 1999 YLR 1229; Amjad Yasin v. University of Engineering and Technology 1999 SCMR 2640 and Farrukh‑ud‑Din and others v. Government of Sindh PLD 2000 Kar. 154 ref.

(d) Constitution of Pakistan (1973)‑‑‑

Art. 199‑‑Constitutional petition‑‑‑Maintainability‑‑‑Failure to point out any specific mala fide act against the authority‑‑‑Constitutional petition was not maintainable.

Saeed Nawaz v. B.I.S.E. PLD 1981 Lah. 371; Chairman B.I.S.E., Lahore v. Ali Mir 1984 SCMR 433; R v. Dunsheath (1950). AER 741 and Thorne v. University (1966) AER 338 rel.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Scope‑‑‑Where petitioner does not come to the Court with clean hands, High Court refuse to exercise discretion in favour of such petitioner on the principle that "who seeks equity must come with clean hands".

Abdur Rashid's case 1966 SChiR 141; Principal King Edward Medical College v. Ghulam Mustafa 1983 SCMR 196; Nawab Syed Ronaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236: Rana Muhammad Arshad's casc 1998 SCMR 1462 and G.M. Malik's case 1990 CLC 1783 rel.

(f) Educational institution‑

‑‑‑‑ Preparation of bogus results for candidates and their admission in professional colleges‑‑‑Effects of such practice on society highlighted.

Zafarullah v. Board PLD 1981 Lah. 244; Zafarullah v. B.I.S.E. 1982 SCMR 571 and Faiz Malik's case PLD 1992 SC 324 ref.

Malik Abdul Sattar Chughtai for Petitioner. Dr. Mohi‑ud‑Din Qazi for Respondents.

Date of hearing: 18th April, 2000.

2000 C L C 1719

[Lahore]

Before Syed Zahid Hussain, J

Mst. KISHWAR SULTANA‑‑‑Petitioner

versus

MUHAMMAD NAZIR and another‑‑‑Respondents

Civil Revision No. 1891 of 1999, decided on 10th April, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 12(2) & 115‑‑‑Specific Relief Act (I of 1877), Ss.12 & 42‑‑‑Suit for declaration‑‑‑Compromise decree‑‑‑Decree was challenged on ground of fraud and misrepresentation‑‑‑Plaintiff/petitioner (wife) claiming ownership of suit property in lieu of dower, filed suit against defendant/respondent who was her husband‑‑‑Trial Court dismissed suit, but Appellate Court decreed the same on basis of compromise arrived at between the parties‑‑‑Other respondent who claimed agreement of sale in his favour in respect of suit property arrived at between him and. husband of plaintiff, had filed suit for specific performance of agreement which was pending adjudication‑‑­,Respondent, who had filed suit for specific performance of agreement against husband of petitioner, filed application under S.12(2), C.P.C. alleging that compromise decree had been obtained collusively (by wife against her husband) in order to frustrate agreement of sale arrived at between him and the other respondent (husband of petitioner)‑‑‑Said application was accepted by Court directing to add said respondent as party in the case‑‑‑Respondent, who was adversely affected by compromise decree to which he was not party, could file application under S.12(2), C.P.C.‑‑‑Application competently filed having been accepted by Appellate Court, order of Appellate Court passed after framing issues, and enabling parties to produce evidence in support of their .respective claims, could not be interfered with in revision.

Muhammad Sharif v. Dr. Khurshid Anwar Mian 1996 SCMR 781; Mst. Hamida Begum v. Muhammad Saleem 1988 CLC 2456; Altaf Parekh v. Delments Construction Company 1992 CLC 700; Mst. Shaheen v. ‑Karachi Building Control Authority PLD 1997 Kar. 659 and Khawaja Muhammad Yousaf v. Federal Government through Ministry of Kashmir Affairs and others 1999 SCMR 1516 ref.

Taqi Ahmad Khan for Petitioner. Kh. Saeed‑uz‑Zafar for Respondent No. 1. Ch. Muhammad Siddique for Respondent No.2.

Date of hearing: 10th April, 2000.

2000 C L C 1725

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

MUHAMMAD ASAD‑‑‑Petitioner

versus

Mst. HUMERA NAZ and others‑‑‑Respondents

Writ Petition No.7755 of 2000, heard on 8th June, 2000.

(a) Muhammadan Law‑

‑‑‑‑ Maintenance of wife by husband‑‑‑Concept and principles.

The definition of maintenance in Islam is Nifka. In the language of law it signifies all those things which are necessary to the support of life. such as food, clothes and lodging.

The subsistence of the wife is incumbent upon her husband. When a woman surrenders herself into the custody of her husband, it is incumbent upon him thenceforth to supply her with food, clothing and lodging, whether she be a Mussalman or an infidel, because such is the precept in Holy Qur'an. Such an obligation arises from the moment the wife is subject to the moral control of her husband and in certain cases for a time even after it is dissolved. A wife must be accommodated with a separate apartment. It is incumbent upon a husband to provide a separate apartment for his wife's habitation, to be solely and exclusively appropriated to her use, so that none of her husband's family, or others, may enter without her permission and desire, because this is essentially necessary to her, and is, therefore, her due the same as maintenance for the word of God appoints her a dwelling house as well as a subsistence, and as it is incumbent upon a husband to provide a habitation for his wife under his control. The maintenance is in all circumstances to be considered a debt upon the husband in conformity with his tenet.

It is really remarkable in Islam that as soon as two sui juris persons enter into contract of marriage so many rights arc created but as soon as the marriage is dissolved, those rights will continue according to the Injunctions of Holy Qur'an. Wife can justly claim maintenance from the date of accrual of cause of action and not necessarily from the date of first seeking redress.

Husband's obligation to maintain his wife commences with the performance of marriage subject to certain conditions. The marriage in Islam being in the nature of a contract, dower is the consideration agreed between the parties which the husband has to pay to the wife either promptly or subsequently, in accordance with the terms of the agreement. On the contrary, maintenance is in obligation which is one of the essential ingredients of marriage, liable to suspension or forfeiture under certain circumstances. The obligation of the husband to maintain his wife has been derived from Verse No.232 of the Sura Albaqra which enjoins upon the father of a suckling child to feed and clothe his wife:

Habib Bank Ltd. v. Muhammad Hussain and others PLD 1987 Kar. 612; Mohammaden Law by Mulla, Schedule, Ss.20, 278, 313; Mst. Maryam Bibi and others v. Muhammad Iqbal and others PLD 1976 Azad J&K 9; Mst. Ghulam Fatima v. Sh. Muhammad Bashir PLD 1958 (W.P.) Lah. 596; Syed Hamid Ali v. Mst. Razia Sultana 1991 CLC 766; Allah Dad ‑. Mukhtar and another 1991 SCMR 1273; 1990 CLC 1983; Mirza Qamar Raza v. Mst. Tahira Begum and others PLD 1988 Kar. 169; Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1; 1990 MLD 344; Zahid Hussain Dar v. Ahmad Shaukat Dar and others 1994 MLD 574; Haji Nizam Khan v. The Additional District Judge, Lyallpur and others PLD 1976 Lah. 930; Saleem Ahmad v. Khadija Begum and 2 others PLD 1977 Kar. 469; Mst. Razia Begun v. Mst. Sardar Begum and others PLD 1978 Lah. 696;

Mst. Hajran Bibi v. Abdul Khaliq PLD 1981 Lah. 761; Adnan Afzal v. Sher Afzal PLD 1969 SC 187; Muhammad Yousuf v. Mst. Nafisa Khatoon and another PLJ 1978 Kar. 404; Hedaya by Hamilton, 1957 Edn., Chap.XV, pp. 142, 143; Baillie, p.234; Abdul Marian v. Safuran Nessa 1970 SCMR 845; Mst. Ghulam Fatima v. Abdul Qayyum and others PLD 1981 SC 460; Muhammad Salah‑ud‑Din Khan v. Muhammad Nazir Siddiqi and others 1984 SCMR 583; Ziaur Rehman v. The State PLD 1986 Lah. 428; Ijaz Haroon v. Inam Durrani PLD 1989 Kar. 304; Hakam Khan's case PLD 1992 SC 595; Dr. Mehmood‑ur‑Rehman Faisal's case PLD 1994 SC 607; Malik Javid Ali v. Abdul Kadir and another 1987 SCMR 518; Alqaim‑ul‑Islam v. Mst. Hussain Bani and 4 others PLD 1976 Lah. 1466; Sardar Muhammad v. Naseema Bibi and others PLD 1966 (W.P.) Lah. 703; Mst. Gull Bibi v. Muhammad Saleem and another PLD 1978 Quetta 117; Syed Amir Ali's Digest on Mahomedan Law; Fataw‑e‑Kazee Khan relating to Mohammadan Law, 1977 Edn., Vol.l; Fatawa‑e‑Alamgiri, Vo1.II, p.689 and PLD 1972 SC 302 ref.

(b) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 7‑‑‑Provision of S.7, Muslim Family Laws Ordinance, 1961, providing for ' the effectiveness of Talaq on receipt of notice by the Chairman, whether against the Injunctions of Qur'an and Sunnah.

(c) Muhammadan Law‑‑‑

‑‑‑‑Divorce‑‑‑Kinds of divorce discussed.

A Talaq may be in writing or by word of mouth and no particular form is necessary. Under Sunni Law where a husband reduces the Talaq in writing and in clear words mentions the name of the lady whom he has divorced, it constitutes a valid divorce. A Talaqnama in writing is a record of the fact of an oral Talaq or it may be the deed by which the divorce is effected. It may be executed in the presence of Kazee or of the wife's father or of other witnesses. It must disclose a clear intention that the marriage stands terminated, but in the case of the oral Talaq, communication is necessary for the purpose of dower maintenance or a woman's right to pledge her husband's credit for means of subsistence. A Talaq becomes irrevocable in Ahsan mode on the expiry of Iddat. A Talaq in the Hasan mode becomes irrevocable and complete on the third pronouncement irrespective of the Iddat. A Talaq in the Badat mode becomes irrevocable immediately on its pronouncement irrespective of Iddat. It is called Talaq‑i‑Bain i.e. irrevocable Talaq. In the absence of word showing a different intention a divorce in writing operates as an irrevocable divorce (Talaq‑i‑Bain) and takes effect immediately on its execution.

Mohammadan Law by Mulla, Section 313 ref.

(d) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑Ss. 7 & 8‑‑‑Application and scope of Ss.7 & 8, Muslim Family Laws Ordinance, 1961.

Unless due sanction is spelled out to interpret and to apply the tenets of Muslim Law and evolutionary process is allowed to be undertaken and what better institution can there be for that purpose than the Judicial component of the State, with ample room for trial and error. the latter of course correctable at the level of the higher echelons or that of the Legislature. Muslim Law can never assume the character of the dynamic force which Almighty Allah wills it to be. There will, in such exercises, be errors and pitfalls but the corrective process of ultimate judicial dispensation and the appropriate legislative measures can always be counted to suppress the mischief and to advance the objectives. This will, in addition, be possessed of the advantages of evolutionary elements and relieve the society of abruptness and suddenness, not uncommonly associated with legislation alone, taken in isolation. Muslim Family Laws Ordinance (VIII of 1961) ‑sections 7 and 8 of the Ordinance are valid. Intention of Legislature, in codifying section 7 of the Ordinance was to abolish Talak‑ul‑Bidaat and legislate Islamic provisions pertaining to two forms of Talaq‑us‑Sunnat viz. Talaq Ahsan and Talaq Hasan as far as may be ‑ Legislative machinery, however, had not fully succeeded in doing so and Ordinance, being an "existing law" in terms of Article 260 of the Constitution read with Article 268(7), adaptations could be construed therein ‑ Court should be extremely slow in according restricted meanings to sections 7 and 8 of the Ordinance and brooking the defeat of the objectives of law on account of any technicalities and procedural flaws in the legislation ‑ Necessity of amending the law desired accordingly. Article 2A of the Constitution of Pakistan had been incorporated into the Constitution of Pakistan as a substantive clause since 1985. The fourth clause of this Article contemplates that the Muslims shall be enabled to order their lives in the individual and collective sphere in accordance with the teachings and requirements of Islam as set out in the Holy Qur' an and Sunnah. Previously it was a part of the preamble of the Constitution and was also enacted in Articles 31 and 230 of the Constitution of Pakistan. The primary ditty of the Court is to adjudicate by reference to positive law in a manner to lend certainty, clarity and precision to the application of law to concrete questions of law and fact necessarily required to be decided.

However, the basis of Islam is Qur'an, Sunnah, Ijmaa and Ijtehad where there is only a Hakam then the rest' is left to the Ijmaa to interpret in what manner it is to be implemented. It is` the duty of the Kazee to interpret and define the law. Therefore, unless and until the Legislature expresses its intention to amend a statute, the statute will remain under protection of the Article 268 of the Constitution of Pakistan, which says except as provided by this Article all existing laws shall, subject to the Constitution, continue in force so far as applicable and with the necessary adaptation, until altered or?amended by the appropriate Legislature.

Ijaz Haroon v. Inam ‑Durrani PLD 1989 Kar. 304; Hakam Khan's case PLD 1992. SC 595; Allah Rakha's case PLD 2000 FSC 1 and Dr. Mehmood‑ur‑Rehman Faisal's case PLD 1994 SC 607 ref. .

(e) Muhammadan Law‑‑‑

Maintenance of minors by parents‑‑‑Principles.

Qur'an specifically enjoins the parents about their children ‑ Chapter 4 Al‑Nisa, Verse No.ll. .Even though parents are mentioned as heirs but significantly the Verse starts with a stress on the obligation of the parents towards their progeny. This is further supported by the commandment contained in Chapter 6, Verse 151 and Chapter 17, Verse 31 where the parents are warned not to kill (physically and metaphorically) the progeny for fear of poverty because Allah has assumed the responsibility of providing for the needs of the parents as well as their children. .This leads to the conclusion that in fact it is the right of children to be protected and be provided for because their legal capacity is defective and it is the obligation of parents to protect and take steps to help/develop the potential of the children. The right in fact vests in the child right from the development of fetus in the womb. Chapter 4, Verse 6 amply proves that the rights, guarantees and protections of children is the legal requirement, the obligations; duties and the responsibility of the parents.

Zafar Iqbal Khan for Petitioner.

Muhammad Saleem Chaudhry for Respondents.

Date of hearing: 8th June, 2000.

2000 C L C 1745

[Lahore]

Before Syed Zahid Hussain, J

DOST MUHAMMAD through Legal Heirs‑‑‑Appellant

versus

JAHANGIR KHAN and another‑‑‑Respondents

Regular Second Appeals Nos. l and 55 of 1980, decided on 8th March, 2000.

(a) Civil Procedure Code (V of 1908)‑‑

‑‑‑‑S. 100‑‑‑Second appeal‑‑‑Two Courts below had concurrently found that respondent, who was nephew of applicant, was Benamidar‑‑‑Courts below had also concurrently concluded that respondents were bona fide purchasers for valuable consideration and that they had acted in good faith‑‑‑Such findings were recorded by two Courts below on due and fair appraisal of material brought on record by parties and no misreading or non­reading of any material piece of evidence had been pointed out so as to come to , any different conclusion‑‑‑Findings so recorded by two Courts below, did not warrant interference by High Court in second appeal.

Tarachand Mondal and others v. Hazari Shaikh and another PLD 1967 Dacca 203; Khair Din and another v. Mst. Zainab Bibi and 2 others PLD 1973 Lah; 586; Shukri and 3 others v. Ch. Muhammad Shaft Zaffar PLD 1975 Lah. 619; Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Annada Mohan Roy Choudhry v. Nilphamari Loan Office Limited and another AIR 1921, Cal. 549; Arta Rout, v. Bhagabat Baral and another AIR 1957 Orissa 157 and Tasang Chuen v. Li Po Kwai AIR 1932 PC 255 ref.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 41‑‑‑Transfer of ostensible owner‑‑‑Principle contained in S.41, Transfer of Property Act, 1882, is one of equity aimed at to protect an innocent person

Muhammad Zafar Chaudhary for Appellant.

Malik Noor Muhammad Awan for Respondent No, l (in R.S.A. No. l and for Respondent No. 2 in R. S. A. No'. 55 of 1980).

Dates of hearing: 29th February and 1st March, 2000.

2000 C L C 1752

[Lahore]

Before Ch. Ijaz‑Ahmad, J

SARDARA and 4 others‑‑‑Petitioners

versus

PROVINCE OF THE PUNJAB through Collector, District Jhang and 17 others‑‑‑Respondents

Civil Revision No.605 of 1987, heard on 29th March, 2000.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑

‑‑‑‑S. 26‑‑‑Civil Procedure Code (V of 1908), S.9 & O.XXXIX, Rr.l, 2--‑­Specific Relief Act (I of 1877), S.42‑‑‑Consolidation proceedings‑‑‑Civil suit‑‑‑Competency of‑‑‑Holdings of petitioner having been reduced in consolidation proceedings, petitioner filed suit for declaration and application for issuance of temporary injunction before Civil Court which suit was dismissed on ground that Civil Court had no jurisdiction to take cognizance of matter by virtue of S.26, West Pakistan Consolidation of Holdings Ordinance, 1960‑‑‑Judgment of Trial .Court was upheld by Appellate Court‑‑­Validity‑‑‑Provision of S.26, West Pakistan Consolidation of Holdings Ordinance, 1960 had clearly provided that any matter which Government, Board or Revenue or any Officer was empowered to determine, decide or dispose of in hierarchy of the Ordinance, could not be called into question by way of civil suit‑‑‑In presence of specific provision for ouster of jurisdiction of Civil Court to entertain such‑like matters, Courts below had rightly dismissed civil suit‑‑‑Concurrent judgment .of Courts below not suffering from any illegality or material‑ irregularity could not be interfered with by High Court.

Muhammad Shafi v. Ahmed Din PLD 1961 Lah. 183; Abdul Hakeem v. Habibullah 1997 SCMR 1139; Muhammad Rafiq's case 1983 SCMR 1024 and Mst. Hijiani and another v. W.P. Land Commissioner, Lahore PLD 1966 SC 114 and Feroze Mining Ltd., Abbottabad's case PLD 1990 Pesh. 174 ref.

Khizar Abbas Khan for Petitioners. .

Malik Akhtar Hussain Awan, Addl. A.‑G. for Respondents Nos. l and 2.

Hafiz Khalil Ahmad for Respondents Nos.3 to 18.

Date of hearing: 29th March, 2000.

2000 C L C 1760

[Lahore]

Before Ch. Ijaz Ahmad and Muhammad Zafar Yasin, JJ

MUHAMMAD ASHRAF‑‑‑Petitioner

versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN‑‑‑Respondent

Civil Miscellaneous No. 12/C of 1997 in Regular First Appeal No. 199 of 1996, heard on 14th March, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, R.19 & S. 151‑‑‑Dismissal of appeal for non‑prosecution‑‑­Restoration of‑‑‑Regular First Appeal was dismissed for non‑prosecution and application for restoration was filed after seventy‑four days from its dismissal‑‑‑Application for restoration of appeal was filed without application for condonation of delay under S.5 of Limitation Act, 1908‑‑­Effect‑‑‑Applicant who was‑ bound to explain each day's delay, failed to explain delay of seventy‑four days‑‑‑Contents of application also did not reveal any cogent/sufficient reason for condonation of delay‑‑‑Applicant himself was to pursue the matter, but he remained negligent‑‑‑No body should be allowed to get benefit of his own negligence‑‑‑Application for restoration of appeal was dismissed, in circumstances.

Maqbool Ahmad Chaudhry for Applicant. Muhammad Anwar Bhinder for Respondent.

2000 C L C 1771

[Lahore]

Before Bashir A. Mujahid, J

Syed HUSSAIN NAQVI and 2 others‑‑‑Petitioners

versus

BEGUM ZAKIRA CHATTHA and another‑‑‑Respondents

Civil Revision No. 1345‑D of 1994,. heard on 7th February, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Scope‑‑‑Process for upsetting concurrent finding of fact in exercise of power under S.115, C.P.C. was neither permissible nor warranted by law‑‑‑Interference with finding of fact by Courts below in exercise of revisional jurisdiction under S.115, C.P.C. by High Court could only be justified if said finding was found to be suffering from misreading of evidence or non‑consideration of important and material evidence or finding was result of perverse appreciation of evidence on record‑‑‑Wrong/erroneous conclusion on question of fact by Courts below was not open to interference by High Court in exercise of its jurisdiction under 5.115, C.P.C.

NLR 1983 (IC) SC 483; PLD 1992 Lah. 92; PLD 1993 SC 147; PLD 1983 SC 53; 1997 SCMR 1139; 1998 SCMR 708; 1993 SCMR 2018; 1997 SC 470 (sic); 1994 SCMR (sic); PLD 1981 (sic); PLD 1987 Lah. 666; 1984 SCMR 1139; PLD 1975 Kar. 930; 13LD 1973 SC.295; PLD 1983 SC 68; 1982 SCMR 542; PLD 1985 Lah. 458; PLD 1993 Pesh. 181; 1989 SCMR 1414; 1998 SCMR 708 and 1997 SCMR 1139 ref. , Kanwar Akhtar Ali for Petitioner. Mirza Manzoor Ahmad and Mr. Javaid for Respondents.

Dates of hearing: 28th and 31st January, 2000.

2000 C L C 1783

[Lahore]

Before Syed Zahid Hussain, J

Sardar GHULAM BAQIR ALI KHAN ‑‑‑ Petitioner

versus

SECRETARY TO GOVERNMENT PUNJAB, COOPERATIVE DEPARTMENT. LAHORE

and 2 others‑‑‑Respondents

Writ Petition No. 8741 of 199 1, heaid on 11th April, 2000.

(a) West Pakistan Cooperative Societies Act (VII of 1925)‑‑

‑‑‑‑S. 54‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Even quasi judicial functionaries while adjudicating upon matters concerning rights of parties were obliged to record reasons and pass speaking orders. Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2744 and M.H. Abidi v. State Life Insurance Corporation 199o‑ MLD 563 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Principle of‑‑‑Even quasi judicial functionaries while adjudicating upon matters concerning rights of parties were obliged to record reasons and pass speaking orders.

Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2744 and M.H. Abidi v. State Life Insurance Corporation 1990 MLD 563 ref.

(c) Laches‑‑‑

‑‑‑‑Laches is not the same thing as limitation and no period can be faxed to constitute laches‑‑‑In the absence of bar of limitation, the period within which the remedy is to be sought, has invariably to be reasonable one.

M.H. Abidi v. State Life Insurance Corporation 1990 MLD 563 rel, , Raja Shafqat Abbasi for Petitioner.

Ch. Muhammad Yaqub Sidhu for Respondent No.2.

Ch. Muhammad Hanif Khatana, Addl. A.‑G., Punjab for Respondent No. 3.

Date of hearing: 11th April, 2000.

2000 C L C 1790

[Lahore]

Before Ch. Ijaz Ahmad, J

JINNAH SPORTS CLUB (REGD.) through General Secretary‑‑‑Petitioner

versus

PAKISTAN CRICKET BOARD through Chairman and 5 others‑‑‑Respondents

Civil Revision No. 1495.of 1999, decided on 10th April, 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 24‑‑‑Transfer of case‑‑‑Duty and obligation of the party to find out the date when case was fixed before the Court to whom case .was entrusted.

S. Irshad Hussain and another v. Azizullah Khan and another 1987 SCMR 150 rel.

(b) Counsel and client‑‑‑‑‑‑‑

Client was fully responsible for the acts of his counsel.

Sh. Abdul Karim's case PLD 1950 Lah. 439 and National Bank of Pakistan v. Champhar (Pakistan Ltd.) 1988 MLD 984 ref.

(c) Counsel and client‑‑

‑‑‑‑ Client had to explain cause of non‑appearance of his counsel.

Rafiq Ahmad v. Abdul Haleem 1982 SCMR 1229; Chiragh Din and 4 others v. Mst. Jannat Bibi and others 1976 SCMR 399 and Zulfiqar Ali v. Lal Din and another 1974 SCMR 162 ref.

(d) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Delay, condonation of‑‑‑"Sufficient cause"‑‑‑Meaning 'and scope‑‑­"Sufficient cause" would mean . a cause beyond control of the party‑‑­"Sufficient cause" was a question of fact which varied from case to case and ultimately it would rest on decision of Court and it should receive liberal construction so as to advance cause of substantial justice‑‑‑Parameter of each case would primarily be on its own facts which would have to be taken into consideration for determining as to whether sufficient cause was shown or not.

Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat 1989 SCMR 883; Muhammad Sharif v. Settlement Department 1989 MLD 3342 and Abdul Karim v. Muhammad Ibrahim 1976 SCMR 79 ref.

(e) Administration of justice‑‑‑‑‑‑‑ .

Cases must be decided on merits instead of technicalities.

Sher Muhammad's case PLD 1989 SC 532; Mst. Sardaran's case 1993 SCMR 363 and Mst. Begum and others v. Mst. Kaniz Fatima Hayat ,1989 SCMR 883 ref.

Abdur Rashid for Petitioner. Naveed Rasool Mirza for Respondent No. 1. Muhammad Usman Subhani for Respondent No.5.

2000 C L C 1801

[Lahore]

Before Syed Zahid Hussain, J

Mst. RAZIA BIBI‑‑‑Petitioner

versus

JAFFAR ALI ‑‑‑Respondent

Civil Revision No. 1504‑D of 1997, heard on 14th March, 2000.

(a) West Pakistan Civil Courts Ordinance (1Q of 1962)‑‑

‑‑‑‑Ss.10 & 15‑‑‑Civil Court‑‑‑Local limits of jurisdiction‑‑‑Local limits of jurisdiction of a Civil Judge posted in a District would extend to entire District in absence of any direction to the contrary given by High Court.

(b) Jurisdiction‑‑

‑‑‑‑ Jurisdiction conferred and vested in a Court could not be taken away or curtailed except by law or in accordance with law.

Sharaf Faridi and 2 others v. M.A. Shahani and 16 others PLD 1975 Kar. 59; Jamil Ahmad v. Sayed Muhammad Ali and another PLD 1977 Kar. 901; Shahbaz Ahmad and 2 others v. Muhammad Shafi and 4 others 1984 CLC 1275 and 1985 SCMR 604 ref.

Ghulam Nabi Bhatti for Petitioner Nemo for Respondent.

Date of hearing: 14th March, 2000.

2000 C L C 1811

[Lahore]

Before Karamat Nazir Bhandari, J

KHALID ABBAS ‑‑‑Petitioner

versus

DEPUTY COMMISSIONER/COLLECTOR, OKARA and 5 others‑‑‑Respondents

Writ Petition No. 11002 of 1994, heard on 11th June, 1999.

Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)‑‑‑

‑‑‑‑S. 24‑‑‑Constitution of' Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Individual dispute and dispute related to matters connected with agriculture procedure‑‑‑Jurisdiction of Chairman of Market Committee as arbitrator‑‑‑Significance‑‑‑Passing and execution of decree‑‑‑Powers of arbitrator‑‑‑Petitioner and respondent who were parties in joint business of running a dealership under a licence from Market Committee, having separated, respondent made claim of certain amount from the petitioner‑‑­Such claim was adjudicated by Chairman and Vice‑Chairman of Market Committee (respondents) as arbitrators and passed decree for the amount of claim in favour of respondent‑‑‑Chairman and Vice‑Chairman of Market Committee in execution proceedings issued warrants against petitioner under West Pakistan Land Revenue Act, 1967 and arrested and confined him for some time‑‑‑Validity‑‑‑Dispute arising in notified market area relating to matter connected with agricultural produce could be referred to Board of Arbitrators under S.24 of Punjab Agricultural Produce Markets Ordinance, 1978, but individual disputes inter se between parties arising out of joint business could not be decided by Board of Arbitrators under the said Ordinance‑‑‑Decision of Arbitrators, decree passed by them against petitioner and consequent steps of execution of said decree as arrears of land revenue, being acts without jurisdiction, were set aside by High Court in exercise of Constitutional jurisdiction declaring them to be illegal.

Hasnat Ahmad Khan for Petitioner.

Nemo for Respondents Nos.3 to 5.

Khan Zahid Hussain Khan for Respondent No. 6.

Date of hearing: 11th June, 1999.

2000 C L C 1818

[Lahore]

Before Malik Muhammad Qayyum, J

HABIB BANK LTD., FOREIGN EXCHANGE BRANCH, KARACHI‑‑‑Plaintiff

versus

Messrs PEARL FABRICS LTD. Through CHIEF EXECUTIVE and 7 others‑‑‑Defendants

Civil Original Suit No.82 of 1998 and Civil Miscellaneous Nos. 1, 24‑B and 40‑B of 1999, decided on 1st March, 2000.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 9 & 12‑‑‑Civil Procedure Code (V of 1908), O.IX, R.13 ‑‑‑ Suit for recovery of loan‑‑‑Ex parte decree, setting aside of‑‑‑Suit having been decreed ex parte, defendant/judgment‑debtor had filed application for setting aside of the decree‑‑‑No separate address of defendant/judgment‑debtor was given in the plaint‑‑‑‑Defendant was resident of Karachi, but notices were sent to him at address of defendant‑company at Lahore which was registered office of the company of defendant‑‑‑Fact that defendant was residing at Karachi and not at Lahore was well within knowledge of plaintiff‑Bank, but despite that the address of Karachi was not mentioned in the plaint‑‑­Defendant having not properly been served, application for setting aside ex parte decree filed within prescribed period of limitation was accepted and the decree was set aside accordingly.

Emirates Bank Limited v. Messrs Osman Brothers PLD 1998 Kar. 338 ref.

Abid Aziz Sheikh for the Decree‑Holder. Ijaz Ahmad Awan for the Judgment‑Debtor No.4. Sajid Mehmood Sheikh for the Judgment‑Debtor No.5.

Date of hearing: 1st March, 2000.

2000 C L C 1823

[Lahore]

Before Muhammad Nawaz Abbasi, J

DAUD ABDUL KHALIQ MEHR‑‑‑Petitioner

versus

Dr. SABIRA SULTANA and 3 others‑‑‑Respondents

Writ Petition No.64 of 2000, heard on 17th February, 2000.

Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 9‑‑‑West Pakistan Family Courts Act (XXXV of 1964), Ss.5, Sched. & 14‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Suit for maintenance‑‑‑Quantum of maintenance allowance Petitioner/husband against whom decree for maintenance was passed concurrently by Courts below had assailed quantum of maintenance allowance without contesting judgment and decree on merits‑‑‑Courts below on basis of evidence on record determined quantum of maintenance allowance payable to respondent wife and minor son. who were not properly maintained by the petitioner‑‑‑Concurrent findings of fact based, on unrebutted evidence on record could not. be disturbed by High Court in exercise of its Constitutional jurisdiction when such judgments were not suffering from any misreading or non‑reading of evidence.

Rais Muhammad Aslam for Petitioner. Ghufran Khursheed Imtiazi for Respondents

Date of hearing 17th February, 2000.

2000 C L C 1829

[Lahore]

Before Ghulam Mahmood Qureshi, J

AKHTAR ALI and others‑‑‑Petitioners

versus.

EJAZ AHMAD and others‑‑‑Respondents

Writ Petition No. 13913 of 1998, decided on 28th May, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 9‑‑‑Oaths Act (X of 1873), S. 8‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for possession‑‑‑Administration of ‑oath, resiling from‑‑‑Plaintiff offered to have the case decided if defendants denied claim of plaintiff by taking oath on Holy Qur'an‑‑Defendants accepted that offer and Court on taking oath by defendants on Holy Qur'an according to offer of plaintiff, dismissed suit filed by plaintiffs, disallowing the plaintiff to resile from his statement with regard to the oath‑‑‑Judgment of Trial Court was upheld by Appellate Court‑‑‑Plaintiffs in their Constitutional petition had challenged concurrent judgments of Courts below firstly on ground that plaintiff having made statement in Court in his personal capacity, the statement was not binding on remaining plaintiffs and secondly that statements of parties containing offer and acceptance were not separately recorded and that Trial Court had put pressure on plaintiffs who himself was an Advocate‑‑‑Plea that statement made by one plaintiff with regard to oath was not binding on other plaintiffs . had no force because plaintiff who was holding power of attorney on behalf of other plaintiffs and had common interest with others had made offer voluntarily to defendants which was accepted by defendants and they took oath accordingly‑‑‑Offer made by plaintiff when accepted, had matured into agreement binding on parties and same was enforceable under law‑‑‑Plea that Court had failed to record separate statements of defendants containing precise wording of offer and acceptance also was of no significance because Oaths Act, 1873 did not prescribe any special form or procedure for recording offer made by one party and its acceptance by others‑‑‑Plaintiff had failed to point out that offer made by him was not same as was recorded by the Trial. Court‑‑To allow party to resile from oath without adequate reason would amount to allowing him to play a game of hide and seek with other party and even would amount to abuse process of Court‑‑‑Offer having been made by plaintiff voluntarily and Trial Court having disallowed him to resile from same, Appellate Court had rightly upheld order of Trial Court‑‑‑In absence. of any illegality, infirmity or jurisdictional defect in orders passed concurrently by Courts below, said orders could not be interfered with by High Court, in exercise of its Constitutional jurisdiction.

Muhammad Ali v. Maj. Muhammad Aslam and others 1988 CLC 718; Mst. Asifa Sultana v. Honest Traders PLD 1970 SC 331; Jalal Din v. Chiragh Din PLD 1972 Kar. 622 and Attiqullah v. Kafayatullah 1981 SCMR 162 ref.

Ch. Akhtar Ali for himself and on behalf of other Petitioners. R.A. Zafar for Respondents.

Date of hearing: 25th May, 1999.

2000 C L C 1838

[Lahore]

Before Ch. Ijaz Ahmad, J

Malik MUHAMMAD TUFAIL and another‑‑‑Petitioners

versus

Messrs FAUJI FERTILIZER CO. LTD. Through Attorney‑General and Marketing Manager‑‑‑Respondent

Civil Revision No. 1045‑D of 1999, decided on 2nd June,. 2000.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, R. 31‑‑‑Suit for recovery of amount‑‑‑Trial Court framed issues and dismissed suit after deciding certain material issues against plaintiff who filed appeal against judgment and decree of Trial Court‑‑‑Appellate Court accepted appeal without giving finding on said material issues which were decided by Trial Court against the plaintiff‑‑‑Appellate Court neither reversed the finding of Trial Court 'nor upheld the same‑‑‑Appellate Court was required to set out points for determination, record decision thereon and give its own reasons for decision in terms of O.XLI, R.31, C.P.C. but findings of Trial Court had been set aside by Appellate Court without setting aside or upholding finding on said issues and no reason had been shown for the decision‑‑‑Appellate Court having failed to apply its judicial mind to the extent of the issues, judgment of Appellate Court was not sustainable in law‑‑‑High Court set aside judgment of Appellate Court and remanded the case.

Madan Gopal and 4 others' case PLD 1969 SC 617; Fateh Muhammad's case 2000 CLC 695; Haji Sardar Ali's case PLD 1952 BJ 30; Messrs Mine Development Corporation's case 1991 CLC Note 359 at p.271; Juma Khan's case 1992 CLC 1022; Bagh Ali's case 1992 CLC 1407; Syed Hassan Shah's case 1987 CLC 2281 and Syed Iftikhar‑ud‑Din Haider Gardezi's case 1996 SCMR 669 rel.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 151‑‑‑Remand of case‑‑‑Remand could be made by High Court in exercise of inherent residuary powers under S.151, C.P.C. where material issues had not been determined by Courts below.

M.M. Alam Chaudhery for Petitioners. Ch. Abdur Rab for Respondents.

2000 C L C 1858

[Lahore]

Before Ali Nawaz Chowhan, J

HOSHIAR ALI ‑‑‑ Petitioner

versus

GHULAM SABIR‑‑‑Respondent

Civil Revision No. 1345 of 1983, decided on 4th June, 1999:

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Transfer of Property Act (IV of 1882), Ss.41 & 54‑‑‑Registration 'Act (XVI of 1908), Ss. 17 & 49‑‑‑Notification No.15246‑74/2237‑LP‑V, dated 30‑12‑1974‑‑‑Suit for declaration‑‑‑Sale of property‑‑‑Validity‑‑‑Shop in dispute earlier was transferred by original owner thereof in favour of respondent through consent decree and said transferee further alienated the shop in favour of plaintiff through registered sale‑deed‑‑‑Plaintiff through suit had sought declaration to the effect that he being bona fide purchaser of the shop was owner in possession thereof‑‑‑Respondent, son of the original owner of shop, had challenged vires of consent judgment and decree in favour of other respondent/vendee from original owner‑‑‑Subsequent sale of shop by vendee in favour of plaintiff had also been questioned by respondent‑‑‑Plea of respondent was that as value of shop in dispute which was situated in urban area was beyond Rs.100, consent decree had to be transferred through a registered sale‑deed which had not been done and that oral transfer of shop in favour of vendee was of no use in view of Ss. 1Z& 49, Registration Act, 1908, as it was, compulsorily registrable under S.54 of Transfer of Property Act, 1882‑‑‑Both Courts below concurrently dismissed suit of plaintiff holding that since sale‑deed in favour of respondent had not been registered same could not be acted upon and subsequent sale in favour of plaintiff was not valid‑‑‑Validity‑‑‑Suit whereby consent decree was obtained by respondent, pertained to year 1966 whereas provisions of S.54 of Transfer of Property Act, 1882 whereby registration of sale‑deed was made compulsory, we're extended to whole of the Province of Punjab from 30th December, 1974 vide Notification No.15246/74/2237/LR­V, dated 30‑12‑1974‑‑‑Provisions of S.54 of Transfer of Property Act, 1882 and Registration Act, 1908 being not applicable at the relevant time; oral sale of shop was valid and subsequent sale in favour of plaintiff was also valid‑‑­Concurrent judgment and decree of Courts below were set aside by High Court and case was remanded to decide afresh after hearing parties.

Zahid Mian Hussain Khan for Petitioner. Mian Sarfraz‑ul‑Hassan for Respondent No. 1. Mian Hamid Farooq for Respondent No.3. Mian Yaqoob Sabir for Respondent No.4.

Date of hearing: 4th June, 1999.

2000 C L C 1873

[Lahore]

Before Sheikh Abdur Razzaq, J

ABDUL ALEEM ANSARI‑‑‑Appellant

versus

Mst. ZUBAIDA SHAHEEN and another‑‑‑Respondents

Second Appeal from Order No.9 of 2000, heard on 15th May, 2000.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑5. 13(3)(ii)‑‑‑Bona fide personal need of landlord‑‑‑Proof‑‑‑Landlady seeking ejectment of tenant on ground of her personal bona fide need, had herself admitted in her statement that during pendency of previous ejectment proceedings a shop was got vacated by her and was rented out by her at enhanced rate of rent‑‑‑Such admission was sufficient to prove that landlady did not require shop in dispute for her personal use otherwise she would not have rented out the shop she got vacated, at enhanced rate of rent‑‑‑Ground of personal bona fide need having not been proved, ejectment application to that effect was dismissed.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 5‑A & 13(2)(i)‑‑‑Default in payment of increased rent under S.5‑A(2) of the Ordinance‑‑‑Tenancy remained continued even after expiry of three years and tenant according to provisions of S.5‑A(2) of West Pakistan Urban Rent Restriction Ordinance, 1959 was bound to increase rent at rate of 25 on completion of three years, but at time of filing ejectment application more than six years had passed and tenant had not increased rent according to law‑‑‑Effect‑‑‑Arrears which had become due as a result of increase of rent under law unless paid earlier, would be deemed to be rent due under S.13(2)(i) of West Pakistan Urban Rent Restriction Ordinance, 1959, on expiry of sixty days‑‑‑Tenant having not increased rent according to law, it would be presumed that rent due had not been paid by him and he would be considered having committed default in payment of .rent‑‑‑Tenant having failed to comply with mandatory provisions of law regarding increase of rent, he was liable to be ejected on that ground.

Dost Muhammad and another v. Muhammad Shabbir Hussain and another 1981 SCMR 528 ref.

M. Kowkab Iqbal for Appellant. Sardar Shaukat Hayat for Respondents.

Date of hearing: 15th May, 2000.

2000 C L C 1877

[Lahore]

Before Sh. Amjad Ali, J

Mst. KHURSHID BEGUM‑‑‑Petitioner

versus

SUB‑REGISTRAR and 2 others‑‑‑Respondents

Writ Petitions Nos.89, 189, 229, 263, 304, 397, 550 of 1986, 44, 249 of 1987, 63, 402, 589 of 1988, 206, 863 of 1994 and 416 of 1995, decided on 16th December, 1998.

(a) Stamp Act (II of 1899)‑‑‑

‑‑‑‑S., 27‑A‑‑‑Charging of ad valorem duty on instruments‑‑‑Registration Authorities by virtue of S.27‑A of Stamp Act, 1899 could insist for charging of ad valorem duty on instruments relating to transactions of land or land with construction raised thereon, whether for sale, exchange or gift, in accordance with rates specified in Valuation Table duly notified by the. Collector‑‑‑Discretion of parties fixing valuation of property for the purpose of payment of stamp duty had been done away provided Valuation Table determining valuation of properties was duly notified by Collector as provided by S.27‑A, Stamp Act, 1899.

Abdul Sattar v. Province of the Punjab and another 1995 CLC 187; Muhammad Aslam v. Sub‑Registrar and others 1995 CLC 674 and Mst. Sobia Hanif v. The Collector (Deputy Commissioner), Lahore District, Lahore and 5 others 1983 CLC 2073 ref.

(b) Stamp Act (II of 1899)‑‑‑

‑‑‑‑Ss. 33 & 64‑‑‑Impounding of documents‑‑‑Release‑‑‑Where document requiring registration was duly registered in accordance with law, Registering Authority could not impound said documents for being insufficiently stamped by under‑valuing properties in respect of which a deed was registered‑‑‑Registering Authority, which had finalised its function by registration of documents, though could not become functus officio but could address to the Collector for initiating any action under S.64 of Stamp Act, 1899, if any party had fraudulently under‑valued the property, but could not recall the registration‑‑‑Action of Registering Authority impounding documents after registration, therefore, was illegal and without lawful authority‑‑‑Registered documents were to be released to the concerned parties accordingly.

Thakar Das and others v. The Crown AIR 1932 Lah. 495; Komal Chand and another v. The State of Madhya Pradesh AIR 1966 Madh. Pra. 20 and Mst. Anwar Sultan v. The Collector, Lahore PLD 1964 W.P. (Rev.) 49 ref.

Mian Inam‑ul‑Haq for Petitioner. Malik Muhammad Kabir, Asstt. A.‑G. for Respondents.

Dates of hearing: 11th, 14th, 15th and 16th December, 1998.

2000 C L C 1886

[Lahore]

Before Ch. Ijaz Ahmad, J

MUZAFFAR ‑‑‑ Appellant

versus

AHMED SHER and 27 others‑‑‑Respondents

Regular Second Appeal No.321 of 1976, heard on 21st March, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Suit for declaration and permanent injunction‑‑‑Concurrent findings of fact‑‑­Appellate jurisdiction of High Court‑‑‑Scope‑‑‑Both Courts below had given concurrent finding of fact against plaintiff/appellant‑‑‑High Court while exercising powers under S.100, C.P.C. could disturb concurrent finding of fact only when evidence was misread and finding was passed on inadmissible evidence or there existed an error or defect in procedure which could possibly had introduced an error or defect in decision on merits‑‑‑Appellant had failed to point out any piece of evidence which was misread by both Courts below or decided case in violation of any mandatory provisions of Civil Procedure Code or rule‑‑‑Appeal was dismissed against concurrent judgments of Courts below, in circumstances.

Muhammad Iqbal v. S.A.M. Khan PLD 1970 Lah. 614; Muhammad Yunus v. Abdul Ghaffar 1998 MLD 1622; Abdul Karim v. Asadullah 1998 CLC 974 ; Zar Wali Shah v. Yousaf Ali Shah 1992 SCMR 1778; Mst. Fazal Jan v. Roshan Din PLD 1992 SC 811; Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051; Mst. Seetan v. Mirza 1998 KLR 225; Ghulam Muhammad v. Sultan Mahmud and others PLD 1963 SC 265; Saida v. Kala 1990 MLD 1189; Ejaz Muhammad Khan v. Mst. Sahib Bibi 1'996 SCMR 598; Abdul Hameed v. Abdul Qayyum 1998 SCMR 671; Sh. Muhammad v. Lal Khan 1997 MLD 1784; Land Acquisition Collector v. Rana Motors Ltd. 1989 MLD 1850; Muhammad Inayat's case PLD 1987 Lah. 537; Sultan Ahmed Sharif's case PLD 1958 Dacca 36; Abdul Hameed's case 1998 SCMR 671 and 1997 SCMR 1866 ref.

Tanvir Bashir for Appellant. Mumtaz Ahmad Bhalwana for Respondents. Ch. Riasat Ali: Amicus curiae.

Date of hearing: 21st March, 2000.

2000 C L C 1923

[Lahore]

Before Syed Zahid Hussain, J

Haji MUHAMMAD AKHTAR‑‑‑Petitioner

versus

ZILA COUNCIL, HAFIZABAD

through Chairman‑‑‑Respondent

Writ Petition No. 13481 of 1999, heard on 9th May, 2000.

(a) Punjab Local Councils (Lease) Rules, 1990‑‑‑

‑‑‑‑Rr. 5 & 6‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Auction of lease of holding cattle/fair market‑‑­Refund of security deposit‑‑‑Petitioner, in response to advertisement for auction of lease of holding cattle/fair market, participated in auction, gave highest bid and auction was confirmed in his name‑‑‑Petitioner, who after confirmation of auction had changed his mind and was not willing to proceed further in the matter, filed Constitutional petition for direction to‑ the Authority to refund his security deposit‑‑‑Validity‑‑‑Petitioner , for participation in auction, agreed to terms and conditions of auction which envisaged likelihood of some dispute between parties and had provided ‑a remedy in form of arbitration‑‑‑Petitioner had signed said terms and conditions, deposited security amount and participated in auction proceedings‑‑‑Effect‑‑‑Petitioner who had accepted terms and conditions of auction and had signed and executed agreement' in that respect was bound by the same and could not repudiate it or resile therefrom‑‑‑Parties having chosen forum by their own will and volition in view of arbitration clause same should be resorted to and Constitutional petition was not the appropriate remedy especially when matter involved factual determination of respective pleas of parties.

Mumtaz Ahmad v. Zila.Council, Sahiwal through Administrator and others 1999 SCMR 117; Nadeem Akhtar Niazi v. Zila Council, Khanewal 1999 YLR 685 and Muhammad Naeem v. District Council, Pakpattan 2000 CLC 73 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Constitutional obligations‑‑‑Writ petitioner cannot seek avoidance of contractual obligations by invoking Constitutional jurisdiction of High Court.

Nadeem Akhtar Niazi v. Zila Council, Khanewal 1999 YLR 685 and Muhammad Naeem v. District Council, Pakpattan 2000 CLC 73 ref.

Muhammad Asad Ullah Siddiqui for Petitioner.

Azam Nazir Tarar for Respondent., Dateof hearing: 9th May, 2000.

2000 C L C 1926

[Lahore]

Before Ch. Ijaz Ahmad, J

CHAIRMAN, WAPDA‑‑‑Petitioner

versus

NASEER AHMED ‑‑‑Respondent

Civil Revision No.669 of 1995, heard on 5th May, 1999.

(a) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S. I‑‑‑Suit for damages‑‑‑Negligence‑‑‑Proof‑‑‑Both Courts below on basis of evidence on record, had given finding of fact that buffalo of plaintiff had died due to negligence of the Authority‑‑‑ Authority had installed electric pole near tubewell of the plaintiff from where electricity was supplied to his tubewell which caused death of buffalo of the plaintiff‑‑‑Findings of Courts below were based on evidence on record and Authority had failed to point out any material irregularity or any misreading or non‑reading of evidence by .Courts below‑‑‑Concurrent findings of Courts below, could not be interfered with by High Court in circumstances.

PLD 1988 SC 625 and Ghulam Qadir's case 1985 CLC 657 ref.

(b) Fatal Accidents Act (XIH of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for damages‑‑Negligence‑‑‑Meaning and scope‑‑‑ "Negligence" would mean existence of right and duty on well‑known, principle that wherever there were rights, there were obligations also‑‑‑Word "negligence" consisted in omission to do something which reasonable man, guided by considerations which ordinarily regulated conduct of a man's affairs, would do, or doing something which a prudent and reasonable man would not do‑‑‑Negligence simpliciter would not be tortious, unless it was proved at the same time that defendants owed a duty to take care qua plaintiff ‑‑‑Electirc pole which caused death of buffalo of plaintiff was installed by defendant‑Authority near tubewell of plaintiff from where electric power was supplied to his tubewell‑‑‑Duty and obligation of officials of defendant‑Authority were to take care/to check all installations of electrification including said electric pole whether same was short‑circuit or not‑‑‑Plaintiff brought sufficient evidence on record that electric pole was short circuit and that buffalo died due to electric shock‑‑‑Where the person had suffered personal injuries on account of negligence of others, he was entitled to damages for personal suffering and for loss of enjoyment of life and also for actual pecuniary loss resulting to and expenses reasonably incurred by him‑‑‑Defendant‑Authority, in circumstances, was responsible for acts and omissions of its employees‑‑‑Authority was to show that it had not been guilty of negligence in ensuring that electric current did not run through electric pole which caused the death of buffalo‑‑‑Failure of Authority to offer any valid excuse for absolving itself of negligence,, plaintiff's suit was rightly decreed concurrently by Courts in circumstances.

River Steam Navigation Company Ltd.'s case PLD 1956 Dacca ,196; Ursubina R.D. Lina's case PLD 1960 Kar. 712; Tabbani Arif's case PLD 1963 Dacca 665; Malik Raza Khan's case PLD 1965 Kar. 2445; Buckland's case (1949) 1 KB 410; S. Iqbal Hussain Jaffery v. Karachi Electric Supply Co. 1994 CLC 1903 and Pakistan Steel Mills' case 1993 SCMR 848 ref.

(c) Words and phrases‑‑

‑‑‑‑ Word "negligence"‑‑‑Meaning elaborated.

Buckland's case (1949) IKB 410; Pakistan Steel Mills' case 1993 SCMR 848 and S. Iqbal Hussain Jaffery v Karachi Electric Supply Co. 1999 CLC 1903 ref.

(d) Words and phrases‑

‑‑‑‑ Expression "contributory negligence"‑‑‑Connotation.

Halsbury's Laws of England ref.

(e) Words and phrases‑‑

.‑‑‑‑Term "damages"‑‑‑Meaning stated.

Corpus Juris Secundum, Vol. 86 ref.

' (f) Words and phrases‑‑‑

‑‑‑‑Expression "duty qua the negligence"‑‑‑Meaning stated.

Abdul Majid and Khadim Hussain for Petitioner. Muhammad Younas Uppal for Respondent.

Date of hearing: 5th May, 1999.

2000 C L C 1943

(Lahore]

Before Raja Muhammad Sabir, J

Mst. SAID BIBI and others‑‑‑Petitioners

versus

Ms. HAYAT BIBI‑‑‑Respondent

Civil Revision No. 1637 of 1998, heard on 18th May, 2000.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

S 2‑A‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑Inheritance‑‑‑Suit for ‑declaration and permanent injunction‑‑‑Original owner of suit land having died, son of deceased showing himself to be the sole heir of deceased, got inheritance mutation sanctioned in his name in respect of entire land of deceased, depriving his sister, who was also entitled to one‑third share of land of deceased being his daughter‑‑‑Plaintiff in her suit had claimed that she being daughter of deceased was entitled to one‑third share and defendant being son of deceased was entitled to 2/3rd share of land of deceased and that mutation whereunder entire land of deceased was given to defendant showing him to be sole heir of deceased, was illegal, void and ineffective as plaintiff was entitled to 1 /3rd share of land‑‑‑Suit was dismissed by Trial Court, but in appeal findings of Trial Court were reversed and suit of plaintiff was' decreed‑‑‑Defendant challenging order in revision had claimed that under (a) of S.2‑A, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, he being male had acquired entire land of deceased under custom as absolute owner and such right was not available to a female and that plaintiff who was female could not claim any share from land of . deceased‑‑‑Validity‑‑‑No difference existed between male and female as far as inheritance of a Muslim deceased prior to 15‑3‑1948 was concerned in view of legal position that last full owner having acquired agricultural land under custom from a Muslim prior to 15‑3‑1948, would be deemed to have inherited under Muslim Personal Law and his heirs after his death would inherit in accordance with Muslim Law whether they s were male or female heirs‑‑‑Plaintiff being daughter of deceased, was entitled to 1/3rd share of deceased‑‑‑Appellate Court below in circumstances, had rightly decreed suit of plaintiff‑‑‑Findings of Appellate Court based on fact and law not suffering from any legal infirmity, would not call for interference.

Abdul Ghafoor and another v. Muhammad Shafi and others PLD . 1985 SC 407; Ghulam Ali and 2 others v. Ghulam Sarwar Naqvi PLD 1990 SC 1; Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667; Raja Muhammad Akbar and others v. Iftikhar Jillani PLD 1991 SC 71; Mst. Fazal Nishan and others v: Ghulam Qadir and others 1992 SCMR 1773; Mst. Zainab Bibi and 2 others v. Muhammad Yousaf and 4 others 1995 SCMR 868; Ch. Ghulam Nabi and 2 others v. Malik Faqir Muhammad and 29 others 1997 SCMR 1352; Shahro and others v. Fatima and others PLD 1998 SC 1512; Mohib Shah and 3 others v. Mst. Jannat Bibi and others 1997 CLC 659 and Qadir Bakhsh v. Bakhat Bhari and others 1998 CLC 41 ref.

Ch. Khurshid Ahmad for Petitioners.

Muhammad Zafar Chaudhry for Respondent.

Date of hearing: 18th May, 2000.

2000 C L C 1951

[Lahore]

Before Karamat NaZir Bhandari; J

SAIFULLAH KHAN alias BUDDAN KHAN‑‑=Petitioner

versus

ADDITIONAL DISTRICT JUDGE, KASUR and 4 others‑‑‑Respondents Writ Petition

No. 16181 of 1998, decided on 11th April, 2000.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑

‑‑‑‑Ss. 13 & 15(6)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Default in payment of rent and bona fide personal need of landlord‑‑‑High Court allowed tenant to withdraw appeal and to file Constitutional petition to. question orders of ejectment ‑‑‑Landlord objected to maintainability of Constitutional petition on ground that only an appeal under S.15(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 was competent‑‑‑Objection to maintainability of Constitutional petition was liable to be rejected on two grounds; firstly, that as landlord was seeking ejectment of tenant from a plot, no second appeal was competent in that case; secondly, that High Court had permitted withdrawal of appeal with permission to file Constitutional petition and that order remained final.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑

‑‑‑‑Ss. 2(c) (i), 13 &' 15 (6)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Landlord and tenant, relationship of‑‑‑Rent Controller and Appellate Authority had concurrently decided that relationship of landlord and tenant existed between the parties‑‑‑Question of fact concurrently decided by two Competent Authorities on basis of evidence on record, could not be interfered with by High Court in exercise of its Constitutional jurisdiction which jurisdiction was limited to examining jurisdictional errors and excesses‑‑‑Different finding though possible, but that alone was not sufficient to hold that concurrent order was without lawful authority.

Haji Muhammad Ramzan v. Mian Jamil Shah PLD 1967 Pesh. 380; Muhammad Umer v. Muhammad Qasim and another 1991 SCMR 1232; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Mst. Imtiaz Bibi and another v. Member, Board of Revenue and others 1983 CLC 2542; Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 and Mir Salah‑ud‑Din v. Qazi Zaheer‑ud‑Din PLD 1988 SC 221 ref.

(c) Civil Procedure Code (V of 1908)‑.

‑‑‑‑0. XLI, R. 27‑‑‑Production of additional evidence in Appellate Court‑‑­Permissibility‑‑‑Additional evidence could only be permitted if Court needed same for the purpose of decision‑‑‑Application in that regard would be considered when appeal itself was heard and Court applied its mind to the facts of the case. [p. 1954] C

Ch. Muhammad Luqman for Petitioner. Muhammad Saleem Sehgal for Respondent No.3.

Dates of hearing: 17th December, 1999 and 4th April, 2000.

2000 C L C 1959

[Punjab Bar Council Tribunal]

Before Justice Tassaduq Hussain Jilani, Chairman, Mian Muhammad Ameen Kalanauri and

Rana Ikram Ullah Khan, Members

MUHAMMAD RAMZAN SHAHID ‑‑‑Petitioner

versus

IKRAM ULLAH SALEEMI, ADVOCATE‑‑‑Respondent

File No.3 of 1995, decided on 10th April, 1999

Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑5. 41(4)‑‑‑Professional misconduct of Advocate‑‑‑Suit for recovery of rent amount‑‑‑Compromise having been arrived at between the parties, Advocate of complainant made a conceding statement to the effect that his client (complainant) did not want to pursue the matter‑‑‑Suit was dismissed as withdrawn in terms of compromise arrived at between the parties‑‑‑Terms of compromise arrived at between the parties having not been denied by complainant, Advocate did not commit any professional misconduct in making conceding statement that complainant did not want to pursue the matter‑‑‑Complaint against Advocate was disposed of in view of terms and undertaking given by the parties.

Complainant in person. M. Latif Rawn for Respondent. Respondent in person. Abdul Hafeez Butt, Advocate in person. Ghulam Haider Alghazali, Addl. A.‑G. Muhammad Akbar Bhatti, Secretary, Punjab Bar Council.

Date of hearing: 10th April, 1999.

2000 C L C 1972

[Lahore]

Before Ihsan‑ul‑Haq Chaudhry, l

RAB NAWAZ‑‑‑Petitioner

versus

ZILA COUNCIL, DISTRICT SHEIKHUPURA

and others =‑Respondents

Writ Petition No. 5182 of 1999, decided on 5th, May, 1999.

(a) Punjab Local Government Ordinance (VI of 1979)‑‑

‑‑‑‑5. 139‑‑‑Punjab Zila Councils (Export Tax) Rules, , 1990, R.8‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Exemption from Exit Tax‑‑‑Bank guarantee‑‑‑Genuineness‑‑‑Contractor, in his Constitutional petition, had objected to directions of Authority whereby he was directed to release goods of exporters without payment of Exit Tax against Bank guarantee‑‑.­Contractor had alleged that exemption from Exit Tax only being available under R.8; Punjab Zila Council (Export Tax) Rules, 1990 in respect of goods exported by charitable or welfare institutions, directions issued by, Authority to release goods of exporters, who did not fall under said rule, was illegal and that Bank guarantees were mostly not genuine, but fake‑‑­Validity‑‑‑Authorities had powers to suspend or abolish levy of any tax‑‑­Agreement was arrived at between contractor and Authority, whereby Authority could exempt goods meant for export to other countries from payment of Exit Tax subject to furnishing of Bank guarantee by exporters to the satisfaction of Zila Council‑‑‑If exporters failed to prove that goods, exempted had been exported abroad, Contractor could encash Bank guarantee, otherwise same could be refunded to exporters after ninety days.

Inpak Tech Industries (Pvt.) Ltd. v. Government of Punjab 1998 MLD 1383 and 1996 CLC 1970 ref.

(b) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑S. 139‑‑‑Punjab Zila Councils (Export Tax) Rules, 1990, R.8‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Exemption from Exit Tax‑‑‑Bank guarantee‑‑‑Genuineness‑‑‑Conditions‑‑‑Authority empowered under 5.139, Punjab Local Government Ordinance, 1979 in view of agreement arrived at between the contractor and Authority to exempt the goods meant for export to other countries from payment of Exit Tax on furnishing Bank guarantee by exporter directed contractor to release goods of exporter against Bank guarantee on proof that goods had been actually exported‑‑‑Contractor objected to said direction alleging that Bank guarantee furnished by exporters were not always genuine and enforceable, being photo copies‑‑‑Allegations of petitioner contractor being serious, High Court with consent of parties laid down conditions that Bank guarantee would be in favour of contractor who would be at liberty to verify its genuineness from Bank before clearing a consignment; that Bank guarantee would be encashed only after expiry of ninety days and that documents to prove the export to other countries would be submitted to Taxation Officer of Zila Council, who would fix a date within seven days of receipt of documents for the scrutiny‑‑‑Meeting would be attended by contractor and exporter or their nominees and contractor would allow an opportunity to exporter to prove that documents were not fake.

Nasim Sabir Ch. and Muhammad Hussain for Petitioner. Ali Ahmad Awan for Respondents Nos. l to 4. Raja Salman Akram for Respondent No. 9.

Date of hearing: 5th May, 1999.

2000 C L C 1976

[Lahore]

Before Ali Nawaz Chowhan, J

SARDAR ALI and others‑‑‑Appellants

versus

GUL ANAR and others‑‑‑Respondents

Regular Second Appeal No.247 of 1980, decided on 10th May, 1999.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 15 & 21‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal‑‑‑Scope‑‑‑Suit for pre‑emption ‑‑‑Superior right of pre‑emption‑‑­Appellate Court below after taking into consideration oral as well as documentary evidence on record had concluded that pedigree‑table produced on record by vendees did not connect them with common ancestor of vendor as claimed by them to prove their superior right of pre‑emption in respect of land in dispute‑‑‑Such relationship with vendor was never specifically pleaded by vendees from the very start of the case but was pleaded for the first time through amendment in their written statement‑‑‑High Court, in second appeal, had limited power and party coming in second appeal had to bring its case under ambit of S.100, C.P.C.‑‑‑Well‑reasoned judgment of Appellate Court below based on evidence on record, not contrary to law and not suffering from any procedural error or defect, could not be interfered with by High Court in second appeal.

AIR (sic) Pesh. 80(1) and PLD 1963 SC 191 ref. '

Ch. Muhammad Abdus Saleem for Appellants:

S.M. Masood for Respondents.

Date of hearing: 10th May, 1999.

2000 C L C 1991

[Lahore]

Before Karamat Nazir Bhandari, J

MUHAMMAD KAMRAN KHAN NIAZI‑‑‑Petitioner

versus

WAPDA and others‑‑‑Respondents

Writ Petition No. 10208 of 1999, decided on 8th June, 1999.

Electricity Act (IX of 1910)‑‑‑

‑‑‑‑S. 26(6)‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Correction of electricity bill‑‑‑Petitioner had called in question correction and legality of electricity bill issued to him by Authority on grounds which were purely factual‑‑‑Such factual matter could not be determined without investigation and enquiry which could not ordinarily be made under Constitutional jurisdiction of High Court‑‑‑Petitioner had adequate alternative . remedy to approach either Electric Inspector under S.26(6), Electricity Act, 1910 or Civil Court under S.9 of C.P.C. or to make a representation to Executive Engineer.

Saif‑ul‑Haq Ziay for Petitioner.

2000 C L C 1995

[Lahore]

Before Faqir Muhammad Khokhar, J

Mst. SAEEDA AKHTAR‑‑‑Petitioner

versus

ADDITIONAL COMMISSIONER/

ADMINISTRATOR (RESIDUAL PROPERTIES), BAHAWALPUR and others‑‑‑Respondents

Writ Petition No.522/R of 1985/BWP, decided on 15th December, 1998.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑ ‑

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Purchase of residual property through auction‑‑‑Constitutional jurisdiction, exercise of‑‑‑Property in dispute had been purchased by respondents in an open auction held by State functionaries and respondents being bona fide purchaser of said property; had constructed buildings/houses thereon after making payment of entire amount thereof to the State‑‑‑Orders confirming sale of property in dispute in favour of respondents who were bona fide purchasers thereof, being just and fair, and not suffering from any jurisdictional or other legal defects, could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Ejaz Ahmad Ansari for Petitioner. M. Ashraf Akhtar for Respondents Nos. l and 2. Muhammad Shamsher Iqbal for Respondent Nos.3 to 5.

Muhammad Jafar Hashmi for Respondent No.6.

Date of hearing: 15th December, 1998.

2000 C L C 1999

[Punjab Bar Council Tribunal]

Before Justice Tassaduq Hussain Jilani, Chairman

and Muhammad Ramzan Chaudhry, Member

MUHAMMAD AFZAL SHAH‑‑‑Applicant

versus

ASMAT KAMAL KHAN, ADVOCATE‑‑‑Respondent

File No.57 of 1995, decided on 17th April, 1999.

Legal Practitioners and Bar Councils Act (XXXV of 1973)‑

‑‑‑‑S. 41‑‑‑Pakistan Legal Practitioners and Bar Councils Rules, 1976, 8.175‑A‑‑‑Professional misconduct‑‑‑Allegation against accused Advocate was that he was engaged by complainant to challenge the order passed by Punjab Labour Court, Lahore, but despite having given undertaking he did not file petition end on account of the omission complainant not only incurred expenses, but also suffered from mental torture‑‑‑Accused Advocate, though denied the allegation, be had conceded that he did accept amount from complainant as initial expenses but advised him not to challenge the order of Labour Court as no case was made out‑‑‑Accused Advocate offered complainant Rs.10,000 to compensate him, which amount was readily accepted by complainant‑‑‑Matter having been settled mutually, in' absence of any other complaint against Advocate, Tribunal did not pass any order against the accused Advocate.

Complainant in person. Respondent in person.

Ghulam Haider Alghazali, Addl. A.‑G. Muhammad Akbar Bhatti, Secretary Punjab Bar Council.

Date of hearing: 17th April, 1999.

2000 C L C 2000

[Lahore]

Before Syed Najam‑ul‑Hasan Kazmi, J

MUNIR AHMAD‑‑‑Petitioner

versus

GHULAM QADIR‑‑‑Respondent

Civil Revision No.242BWP of 1983, decided on 23rd June, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XLI, Rr. 23, 24 & 25‑‑‑Remand of case‑‑‑All issues covering controversies arising out of pleadings including issues on basis of which case was remanded by Appellate Court below were framed and were decided by Trial Court after recording evidence but Appellate Court below without taking into consideration said facts remanded the case mechanically which had never been approved in law‑‑‑Rule was that unless judgment was reversed in appeal, no remand was permissible, simply for the reason that additional issue had been framed‑‑‑If any additional issue was framed, Court could proceed under O.XLI, Rr.24 & 25 of C.P.C.‑‑‑Remand of case on technical reason was not approved‑‑‑When no further issue was required and all issues had been framed and decided by Trial Court, Appellate Court was expected to render judgment on merits after considering entire evidence on record in the light of issues already framed‑‑‑Order of Appellate Court was set aside by High Court.

Malik Raheem Bakhsh Awan v. Ejaz Mahmood and another PLD 1990 Lah. 37 ref.

Ch. Muhammad Ashraf Mohandra for Petitioner. Ch. Abdus Sattar for Respondent.

Date of hearing: 23rd June, 1999.

2000 C L C 2002

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD AMIN ‑‑‑Appellant

versus

MANZOOR AHMED and another‑‑‑Respondents

Second Appeal from Order No.20 of 2000, decided on 2nd May, 2000

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑

‑‑‑‑Ss. 2(c)(i), 13(3)(ii), 13‑A & 15(6)‑‑‑Ejectment of tenant‑‑‑Relationship of landlord and tenant‑‑‑Change of ownership of premises‑‑‑Notice to tenant‑‑‑When the premises was rented out to tenant it was owned by two brothers‑‑‑Subsequently one brother purchased share of other brother and after said purchase vendee brother who had become absolute owner/landlord served‑ upon tenant notice under S.13‑A of West Pakistan Urban Rent Restriction Ordinance, 1959, intimating him change of ownership‑‑‑Tenant denied relationship of landlord and tenant between him and vendee brother contending that the brother who was holding half share of premises in dispute being not a new owner could not serve notice for change of ownership ‑‑‑Validity‑‑‑Vendee brother prior to purchase of share of other brother did not serve any notice of change of ownership, but after purchase of the share he, having become full owner of premises, had rightly become new owner and had rightly served upon tenant notice for change of ownership‑‑‑Tenant having denied relationship of landlord and tenant,, Rent Controller had rightly framed and decided issue of relationship of landlord and tenant between parties‑‑‑Rent Controller and Appellate Authority below had given unanimous finding of fact that relationship of landlord and tenant' existed between the parties‑‑‑ Such concurrent findings of fact based on record could not be interfered with.

Sirbaland v. Allah Loke 1996 SCMR 575 ref.

Muhammad Saleem Sheikh for Appellant

2000 C L C 2005

[Lahore]

Before Syed Najam‑ul‑Hasan Kazmi, J

Dr. Raja JAVED KAYANI‑‑‑Appellant

versus

MUHAMMAD IQBAL ‑‑‑ Respondent

First Appeal from Order No.27 of 1999, decided on 3rd September, 1999.

(a) Cantonments Rent Restriction Act (70 of 1963)‑‑‑

‑‑‑‑S. 17(4)(5) & (6)‑‑‑Bona fide personal need of landlord‑‑‑Application by landlord for ejectment of tenant on ground of personal bona fide need was dismissed by Rent Controller on two grounds, that earlier ejectment application by landlord was withdrawn after seeking increase of rent of premises and that landlord was owner of other properties‑‑‑None of the grounds which prevailed upon Rent Controller were in accordance with law‑‑‑Ownership of other premises by landlord was no ground to non ­suit landlord on plea of personal use because landlord had prerogative to decide which one of the properties he would like to occupy for his business or personal use and for that purpose he need not be guided to or advised by tenant‑‑‑If personal use of landlord was proved independently, mere increase of rent in the past, would ‑not be a basis for non‑suiting the landlord‑‑‑Mere withdrawal of earlier ejectment application by seeking increase of rent at the most would amount postponement of personal need, but would not be a­ground to non‑suit landlord or debar him for all time to come to move ejectment application on ground of personal need if landlord was able to prove that subsequently personal need had arisen in good faith.

(b) Cantonments Rent Restriction Ordinance (II of 1963)‑

‑‑‑‑S. 17(4)(5)(6)‑‑‑Bona fide personal need of landlord‑‑‑Protection of tenant‑‑‑Landlord for seeking ejectment of tenant on ground of personal bona fide need, had to make statement on oath, deposing, material facts‑‑‑Landlord had also to take Rent Controller in confidence and if his statement was not shaken in cross‑examination and was also consistent with pleadings, the question of personal need had to be read in context with protection (6) of S.17 of Cantonments Rent Restriction Ordinance, 1963, which had provided adequate check against mala fide ejectment ‑‑‑Rent Controller was to consider entire evidence in affirmation and also evidence in rebuttal by tenant and thereafter should conclude if personal need was made out or not‑‑‑Without reference to any statement or without giving an impression that evidence was minutely examined, plea of bona fide requirement could not be repelled on surmises and conjectures.

Syed Asghar Haider for Appellant: Respondent in person.

Date of hearing: 3rd September, 1999.

2000 C L C 2010

[Lahore]

Before Syed Najam‑ul‑Hasan Kazmi, J

MUHAMMAD ASIF‑‑‑Appellant

versus

INAYAT BEGUM‑‑‑Respondent

Second Appeal from Order No.246 of 1999, decided on 18th October, 1999.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑

‑‑‑‑(. 13(3)(4)‑‑‑Bona fide personal need of landlord‑‑‑Landlord for seeking ejectment of tenant on ground of personal bona fide need, had to appear and make statement as to his personal need and if his statement was not contradicted or shaken in cross‑examination the question for personal use had to be read in context with S.13(4) of West Pakistan Urban Rent Restriction Ordinance, 1959 which had provided adequate check against mala fide eviction‑‑‑Landlady appeared in witness‑boa and deposed that property was required by her for personal use and her statement having not been shaken in cross‑examination, same had to be given paramount importance‑‑‑Tenant having failed to produce any evidence worthy of credence, Rent .Controller had rightly concluded that, plea of personal use of landlady had been established beyond doubt‑‑‑Even otherwise, statement of landlady had to be given primary consideration.

Messrs F.K. Irani & Co. v. Begum Feroz 1996 SCMR 1178 and Juma Sher v. Sabz Ali 1997 SCMR 1062 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑(. 13(3), (4)‑‑‑Statement of landlord‑‑‑Evidentiary value‑‑‑Statement of landlord has to be given primary consideration.

Sajjad Mehmood Sheikh for Appellant. Abdul Wahid Chaudhry for Respondent No. 1.

2000 C L C 2029

[Lahore]

Before Ghulam Mahmood Qureshi, J

Rana MUHAMMAD IRFAN YOUSUF‑‑‑Appellant

versus

ISLAMIA UNIVERSITY through

Vice‑Chancellor and 2 others‑‑‑Respondents

Writ Petition No.924 of 2000/BWP, heard on 31st March, 2000

(a) Educational institution‑

‑‑‑‑ Fixation of date for examination by the University is a policy matter‑‑­High Court has no jurisdiction to disturb the schedule of any institution, as the same is its own prerogative to fix the date as per its convenience and taking in view the administrative problems i.e. regarding availability of examination centres and examiners‑‑‑Date of examination cannot, in any case, be extended on the grievance of an individual‑‑‑Dispute regarding fixation of the date can more properly be dealt with by the Administration of the University and should not ordinarily be taken to the law Courts.

Zamir Ahmad Khan v. Government of Pakistan and another 1978 SCMR 327 and Chairman, Board of Intermediate and Secondary Education, Lahore and another v. Ali Mir 1984 SCMR 433 ref.

(b) Constitution of Pakistan (1973)‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Condition precedent for maintainability‑‑‑Petitioner has to point out any violation committed by the respondent under the Rules and Regulations by which they are being governed.

(c) Constitution of Pakistan (1973)

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Dispute was with regard to the fixation of examination date by the University‑‑­Contention raised by the candidate was that the date was in contravention of the Calendar of University‑‑‑Validity‑‑‑Candidate had no vested right to raise such dispute‑‑‑Petition was not maintainable on the ground that no rule/law was violated by the University which necessitated issuance of directions by the High Court‑‑‑Such issuance of writ would amount to an interference with the internal autonomy and functioning of the University‑‑‑Petition was dismissed in circumstances.

Ghulam Mustafa v. Chairman, Board of Intermediate and others 1998 CLC 432 ref.

Muhammad Hussain Azad for Petitioner. M.M. Bhatti for Respondents.

Date of hearing: 31st March, 2000.

2000 C L C 2037

[Lahore]

Before Iftikhar Hussain. Chaudhry, J

Syed JALAL HUSSAIN SHAH‑‑‑Petitioner

versus

FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN

through Secretary, Ministry of Finance

and 5 others‑‑‑Respondents

Writ Petition No.5063 of 1999/BWP, decided on 6th March, 2000.

(a) Constitution of Pakistan (1973)‑‑‑, ‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Nature of‑‑‑High Court under Art. 199 of the Constitution exercises jurisdiction in cases of non‑feasance, malfeasance and misfeasance of public functionaries‑‑‑Since errors or omission and commission of public functionaries were addressed while acting under Art. 199 of the Constitution, the jurisdiction exercised by High Court was forensic in nature and not expropriatory as High Court was not required .or called upon to substitute its orders for .that of public functionaries, or assume the functions of lower Tribunal or decision‑makers.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199 & Part.II, Chap. 1 [Arts.8 to 28]‑‑‑Constitutional jurisdiction of High Court‑‑‑Enforcement of Fundamental Rights enumerated in Part II, Chap.1 of the Constitution‑‑‑Jurisdiction vesting, in High Court also comes into play where enforcement of Fundamental Rights is required.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑­Constitutionality of legislation, legality and rationality of executive orders and conformity by Tribunals with substantive and procedural due process are subject‑matters of judicial review of High Court under Art. 199 of the Constitution‑‑‑Law does not envisage any other role for High Court in this context.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 2A‑‑‑Article 2A of the Constitution of Pakistan is embodiment and expression of a resolve and desire by the State and the nation and is not a prime. mover for other Articles of the Constitution.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199, 227(1), 228 & Part VII, Chap. 3‑A [Arts.203‑A to 203‑J]‑‑­Council of Islamic Ideology‑‑‑Object‑‑‑Declaration of an existing law as repugnant to Injunctions of Islam‑‑‑Jurisdiction of High Court under Art. 199 of the Constitution‑‑‑Scope‑‑‑Council of Islamic Ideology has been assigned a special advisory role which is to give effect to provisions of Art.227(1) of the Constitution‑‑‑Provisions .of Chap. 3‑A of Part VII of the Constitution create a special jurisdiction for examination of vires of various laws (but not executive orders, decisions or actions) in the light of Injunctions of Islam and an existing law can be declared to be repugnant to Injunctions of Islam to the extent of repugnancy in the law or any other provisions thereof‑‑‑High Court in exercise of powers in general jurisdiction cannot examine the vires of such laws.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Riba‑‑Vires of interest claimed by Bank on loan advanced to the petitioner‑‑‑Petitioner entered into a lawful contract with the Bank according to a valid law in existence at the relevant time, with his free consent and without coercion‑‑‑Such contract was still in existence and was enforceable in accordance with valid existing law of the land‑‑‑Petitioner assailed the recovery of interest accrued on the loan availed=‑‑Validity‑‑‑Where the Bank was charging or trying to recover from, the petitioner certain amounts of money over and above what was agreed to between the parties at the time of signing of the contract, petitioner could urge any grievance in respect of recovery of amount due from him and should discharge his contractual liabilities in accordance with law as Bank was not doing anything which was forbidden by law‑‑‑Constitutional petition was dismissed in limine.

PLD 1996 Lah. 672; 1997 SCMR 1992; 1998 SCMR' 1899; Al­Qur'an: Sura Al‑Nisa, Verse 58 and Tafseer al=Manaar by Allama Rashid Raza ref.

M.A. Farani for Petitioner

2000CLC40

[Peshawar]

Before Mian Muhammad Ajmal

and Muhammad Azam Khan, JJ

WATER AND POWER DEVELOPMENT AUTHORITY

(WAPDA) through General Manager and

Project Director and another‑‑‑Petitioners

versus

ADMINISTRATOR, DISTRICT COUNCIL, SWABI and 5 others‑‑‑Respondents

Writ Petition No. 12 of 1999, decided on 9th September, 1999.

(a) North‑West Frontier Province Local Government Ordinance (IV of

1979)‑‑‑

‑‑‑‑S. 135‑‑‑North‑West Frontier Province Local Councils (Imposition of Taxes) Rules, 1980‑‑‑Constitution of Pakistan (1973), Arts.165 & 199‑‑‑Constitutional petition‑‑‑Exemption of certain public property from taxation‑‑‑Exemption of export tax and educational cess‑‑‑Contractors and Authority (WAPDA) claimed exemption from such taxes under provision of Art.165 of the Constitution‑‑‑ Validity‑‑‑Assignment of contractor was to undertake construction for which the contractor had to arrange for the material for construction and equipment on his own and the contractor was to be paid for the same by the Authority‑‑­Contractor in his trade or business of contract was likely to earn income for itself, and during the course of construction, the project assigned to the contractor would not yield any profit or income for the Authority rather the Authority would be an investing party, who wopld pay to the contractor under the contract executed between the contractor and Authority ‑‑‑Where neither the property of the Authority was involved nor the same earned any income, provisions of Art, 165, Constitution would not be attracted.

(b) West Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑‑

‑‑‑‑Preamble‑‑‑Service Tribunals Act (LXX of 1973), S.2‑‑‑Service under the Water and Power Development Authority being service of Pakistan every person holding a post under the Authority would be deemed to be a civil servant for the purpose of Service Tribunals Act, 1973.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 165‑‑‑Exemption from taxation‑‑‑Scope‑‑‑Property owned by Water arid Power Development Authority (WAPDA)‑‑‑Federal Government has complete control on WAPDA, and it is performing functions of State like a department of Government‑‑‑Property or income of WAPDA can. be said to be that of the Government and the same stands exempted from the liability of tax ‑‑‑WAPDA is entitled to the same exemption as are permissible to the Federal Government under the provision of Art. 165 of the Constitution.

(d) Constitution of Pakistan (1973)‑‑‑ ;

‑‑‑‑Art. 165‑‑‑Exemption from taxation‑‑‑Extension of such exemption to contractor who was assigned contract either by the Federal Government or, by an Authority or Corporation performing function of the State‑‑‑Scope‑‑‑Such exemption could not be extended to such contractor.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Enforcing of contractual liability‑‑­Contractual liability could not be enforced through Constitutional petition.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑ Estoppel ‑‑‑ Applicability ‑‑‑ Recovery of a tax was challenged by petitioner‑‑‑Where the petitioner had been paying that tax previously, he was estopped by his conduct to question such recovery later on in the Constitutional petition.

Yahya Khan Afridi for Petitioner. Muzammil Khan for Respondent No. 1. Jahanzeb Rahim for Respondent No.6. Sh. Abid Ali, Legal Adviser District Council, Haripur.

Date of hearing: 10th March, 1999.

2000 C L C 199

[Peshawar]

Before Talat Qayum Qureshi, J

Raja SAEED AHMAD KHAN‑‑‑Appellant

versus

SABIR HUSSAIN ‑‑‑Respondent

Regular First Appeal No.9 of 1999, decided on 17th September, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXXVII, R.3‑‑‑Suit upon. negotiable instrument‑‑‑Application for leave to defend suit‑‑‑Holder of cheque was not bound to prove consideration‑‑‑Mere denial of consideration by the drawer did not warrant the grant of leave to defend the suit.

Hamidullah Khan v. Muhammad Nawaz Qasoori PLD 1982 Lah. 203 rel.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXXVII, R. 3‑‑‑Leave to defend suit‑‑‑Defendant in his application for leave to defend suit had made vague and general averments‑‑‑Trial Court was justified in holding that the defendant had failed to make out a case for leave to defend the suit.

Haji Ali Khan & Co. v. Messrs Allied Bank of Pakistan Ltd. PLD 1995 SC 362 rel.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XXXVII, R.3‑‑‑Leave to defend suit‑‑‑Scope‑‑‑Grant of such leave is not a matter of course or of right‑‑‑Defendant has to show such fats which may warrant the proving of the consideration by the plaintiff or disclose a plausible defence which may give rise to triable issues‑‑‑Where no defence worth the name is made out on facts or in law in the application for leave to defend the suit or defence disclosed on affidavits is sham or colourable or illusory/imaginary and may not give rise to triable issues, then leave to defend shall be refused.

Messrs Platinum Insurance Company v. Messrs Highways Bridge Contractor International (Pvt.) Ltd. and another 1997 MLD 2394; United Sugar Mills Ltd. v. National Development Finance Corporation and 5 others 1997

MLD 3122; National Bank of Pakistan v. Muhammad Ashraf Sanik and another PLD 1987 Lah. 17 and Haji Ali Khan & Company and 8 others v. Allied Bank of Pakistan, Abbottabad PLD 1995 SC 362 ref.

Haji Ghulam Basit for Appellant.

Masoodur Rehman Awan for Respondent.

Date of hearing: 21st June, 1999.

2000 C L C 252

[Peshawar]

Before Talaat Qayyum Qureshi. J

BASHIR AHMED and 2 others‑‑‑Petitioners

versus

MURTAZA KHAN‑‑‑Respondent

Civil Revision No.22 of 1995, decided on 10th September, 1999.

(a) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), O. VI, R.2‑‑‑Pre‑emption suit‑‑‑Pleadings‑‑‑Specifying in plaint, names of witness in whose presence, pre emptor had made "Talb‑i‑Muwthibat" and also mentioning of time and place of such. "Talb" was not sine qua non for the pre‑emptor ‑‑‑Pre‑emptor could not be non‑suited on the ground that he failed to mention the time and place where "Talab‑e‑Muwathibat" was made.

Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 8133 ref.

(b) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑R . 13‑‑Right of pre‑emption ‑‑‑Such right is extinguished unless pre‑emptor makes demand of pre‑emption through "Talb‑i‑Muwathibat", "Talab­i‑Ishhad" and finally through "Talb‑i‑Khasumat".

(c) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Right of pre‑emption‑‑‑ "Talb‑i‑Muwathibat"‑‑‑ Proof of‑‑‑Any word indicative of intention of pre‑emptor to enforce his right of pre‑emption is sufficient to prove the same.

(d) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Pre‑emption suit‑‑‑Requirements of "Talbs"‑‑‑Pre‑emptor, on attaining the knowledge of sale of suit land immediately made "Talb‑i­Muwathibat" and in due time notice of "Talb‑i‑Ishhad" was posted to the vendee specifying the names of witnesses of "Talb‑i‑Muwathibat" and date of knowledge of sale‑‑‑Witnesses corroborated the pre‑emptor on all material facts‑‑‑Trial Court dismissed the suit while the Lower Appellate Court decreed the same in appeal‑‑‑Validity‑‑‑Statement of the pre‑emptor on: oath coupled with the written notice sent to the vendee within seven days of "Talb‑i‑Muwathibat" substantially complied the legal requirements of S.13(3) of North‑West Frontier Province Pre‑emption Act, 1987‑‑‑High Court declined interference in order of Appellate Court in circumstances.

Shah Hussain and 9 others v. Khani Zaman PLD. 1996 Pesh. 73; Abdul Hameed v. Haq Nawaz 1999 CLC 120; Allah Yar v. Shah Muhammad and others 1999 YLR 1663; SajaA Zaman and others v. Muhammad Yaqoob and others 1999 YLR 2716; Muhammad Ashraf v. Tahir and 6 others 1990 MLD 2399 and Muhammad Gul v. Muhammad Afzal1999 SCMR 724 ref. '

Ghulam Younis Khan Tanoli for Petitioners.

Muhammad Hussain Lughmani for Respondent.

Date of hearing: 10th September, 1999.

2000 C L C 274

[Peshawar]

Before Talaat Qayyum Qureshi, J

Sardar MUHAMMAD YAQOOB‑‑‑Appellant

versus

MUHAMMAD SALEEM‑‑‑Respondent

Regular First Appeal No. l of 1999, decided on 27th September, 1999.

(a) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Change of ownership‑‑‑Notice to tenant‑‑‑Provision for issuance of notice for such change to tenant does not exist in Cantonments Rent Restriction Act, 1963.

Sabz Ali Khan v. Bismillah Khan and others 1997 MLD 675 ref.

(b) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlord‑‑‑Failure to mention in ejectment petition by landlord that he was not occupying similar commercial property suitable for his needs‑‑‑Effect‑‑‑Non‑mentioning of' the same was not fatal to the case of the landlord.

Haji Mohibullah & Co. and others v. Khawaja Bahauddin 199(1 SCMR 1070 rel.

(c) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlord‑‑‑Mere assertion or claim by, landlord on oath that he required the premises for his personal use, if consistent with his statement in the ejectment petition and which was not shaken in cross‑examination or proved in rebuttal was to be accepted by Rent Controller as bona fide.

Muhammad Haleem Siddique and another v. Dr: Huma Khusro 1997 CLC 905 and Gohar Rashid v. Fazal Hussain.Mazhar PLD 1995 Lab. 469 rel.

(d) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlord‑‑‑Non‑mentioning of details of requirements in application for eviction by landlord‑‑‑Effect‑‑‑Such details need not be mentioned in the ejectment petition.

Zahoor Din v. Muhammad Anwar Baig 1981 SCMR 1081 Muhibullah v. Khawaja Bahaoddin 1990 SCMR 1070; Mst. Sahira Bhai v. Syed Anisur Rehman 1989 SCMR 1366; Muhammad Sharif v: Nisar Ahmad 1988 SCMR 1587 and M. Amjad Bhutta and another v: Malik Abdul Hameed Tawana, District Judge, Sialkot and others PLD 1990 Lab. 412 ref.

(e) Cantonments Rent Restriction Act (XI. of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlord‑‑‑Fact that another shop was owned by father of landlord‑‑‑Effect‑‑‑Such fact had no direct bearing on the question of bona fide requirement of the landlord.

Abdul Kalam v. Mst. Dilshad 1991 SCMR 1421 rel.

(f) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlord‑‑ Availability of more than one shop owned by landlord‑‑‑Effect‑‑‑Choice and prerogative of the landlord to choose a shop/shops for his business.

Dildar Hussain Dar v. Niaz Muhammad Dar and another 1985 SCMR 1769; Mst. Firdoos Sabir v. Haji Mushtaq Ahmad pervez 1994 SCMR 3.55; Bashir Ahmad v. Muhammad Shafi 1989 SCMR 538; Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SCMR 394 and Adeeba Musharaf v. Muhammad Ishaq and another 1993 SCMR 2354 rel.

(g) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Ejectment petition‑‑‑More than one ground raised in the petition‑?‑Effect‑‑‑Where landlord succeeds on one ground, it was not, necessary for Rent Controller to go into other grounds.

Messrs Rabka Pest Control Ltd. v. Mrs. Mahmooda Khalil 1989 SCMR 515 rel.

(h) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlord‑‑‑Conduct of tenant during proceedings‑‑‑Landlord proved his bona fide personal need before the Punt Controller‑‑‑Actual tenant had handed over the possession ,of '' a shop to another person, who had been wrongly shown as brother of the actual tenant‑‑‑Effect‑‑‑Such conduct of the actual tenant also disentitled him to any relief‑‑ ‑Eviction order of the Rent Controller was maintained in circumstances.

Muhammad Rishan Khan v. Ashfaq Ali 1995 CLC 702; Mst Ashraf Alia v. Dr. Asif Majeed 1991 CLC 53; Mst. Razia Khatoon through legal heirs v Abdur Razaq 1991 CI.C 12'16: Messrs Ibrahim Agencies. Panorama Interprises Ltd, 1997 MLD 3035: Muhammad saleem khan v Zameer Ahmad Khokhar 1997 CLC 1531; Muhammad Haleem Siddique v. Dr. Huma Khusro 1997 CLC 905; Anwar Habib v. Durdana Yousafi 1998 MLD 99; Mst. Sahira Bhai v. Syed Anisur Rehman 1989 SCMR 1366; Muhammad Siddiq and others 'v. Syed Mansoor Ali Shah 1989 SCMR 511 and Mst. Firdoos Sabir v. Haji Mushtaq Ahmad Parvez 1994 SCMR 355 ref.

Muhammad Younis Khan Tanoli for Appellant.

Syed Abdus Salam Sarwar for Respondent.

Date of hearing: 13th September, 1999.

2000 C L C 296

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ .

Sardar MUHAMMAD RAMZAN ‑‑‑ Appellant

versus

MUHAMMAD YAHYA KHAN‑‑‑Respondent

Regular First Appeal No.26 of 1996, decided on 10th June, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XIII, R. 4‑‑‑Stamp Act (II of 1899), S.35‑‑‑Document‑‑‑Admission in evidence‑‑‑Once a document was admitted to evidence without any objection, the same could not be questioned subsequently, on the ground that the document so admitted was not duly stamped or was under stamped.

Rehmat Wali v. Wahid Bakhsh NLR. 1979 Civil SC 809; Ch. Muhammad Saleem v. Muhammad Akram PLD 1971 SC 561; Farid Akhtar Hadi v. Muhammad Latif Ghazi 1993 CLC 2015; Muhammad Akbar Khan v. Saeed Khan PLD 1978 SC (AJ&K) 6; Samiullah v. Muhammad Ahmad PLD 1977 Kar. 49; V.E.A.. Annamalai Chettiar and another v. S.V.V.S. veerappa Chettiar and others AIR 1956 SC 12 and Abdul Hashim v. Serajul Haque and others PLD 1961 Dacca 596 ref.

(b) Stamp Act (II of 1899)‑‑‑

‑‑‑‑Preamble‑‑‑Object of Stamp Act, 1899‑‑‑Provisions of Stamp Act, 1899, are for the purpose of protecting the revenue‑‑‑Failure to comply with provisions of Stamp Act, 1899, may entail penalty.

(c) Negotiable Instruments Act (XXVI of 1881)‑‑‑

‑‑‑S. 118‑‑‑Negotiable instrument‑‑‑Execution for consideration‑‑Presumption ‑‑‑Scope‑‑‑Presumption that negotiable instrument was executed for consideration is in favour of the plaintiff under S.118. Negotiable Instruments Act. 1881.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXVII, R. 2‑‑‑Suit for recovery of loan on basis of pronote‑‑­Amount of loan was paid to the borrower and the instrument was produced and duly proved as having been admitted‑‑‑Where the execution of the instrument was not denied by the borrower, consideration was passed, the borrower was liable to pay the amount of `loan mentioned in the instrument alongwith interest to the creditor.

Sohan Lal Nehal v. Raghu Singh and others AIR 1934 Lah. 606 and Farid Akhtar Hadi v. Muhammad Latif Ghazi and another 1988 CLC 2397 ref.

Muhammad Younis Khan Tanoli for Appellant.

Sardar Muhammad Irshad for Respondent.

Date of hearing: 10th June, 1999.

2000 C L C 327

[Peshawar]

Before Talat Qayum Qureshi, J, Haji MUHAMMAD DAOOD‑‑‑Petitioner

versus

MUHAMMAD DAUD‑‑‑Respondent

Civil Revision No.20 of 1995, decided on 22nd October, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. VT. Rr. 2 & 3‑‑‑Contents of pleadings‑‑Essentials‑‑‑Plaintiff should state such facts in the pleadings which may put the defendant on his guard and tell him what he will have to meet when the case comes on trial‑‑‑Every pleading should contain only a statement in a concise form of the material facts on which the party relies for his claim or defence as the case may be‑‑­Pleadings should not contain the evidence by which such material facts are to be proved.

(b) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑S 13‑‑‑Pre‑emption suit‑‑‑Non‑mentioning of names of witnesses in plaint, in whose presence "Talab‑i‑Muwathibat" was made‑‑‑Effect‑‑‑Such mention was not sine qua non for pre‑emptor to specify in the plaint the names of the witnesses in whose presence the pre‑emptor had made "Talb‑i­Muwathibat" and also specify the time and the place to make such Talb under S.13, North‑West Frontier Province Pre‑emption Act, 1987.

Sar‑Injam v. Abdur Razaq 1999 SCMR 2167 ref.

(c) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Pre‑emption suit‑‑‑Making of "Talbs"‑‑‑Notice in terms of S.13(3), North‑West Frontier Province Pre‑emption Act, 1987 was served upon vendor within time and the same was received and duly replied‑‑‑Such action of the pre‑emptor was sufficient compliance as regards making of "Talb‑i‑Ishhad"‑‑‑Both the Courts below found that the "Talbs" were made in accordance with law‑‑‑Such concurrent findings of the two Courts below being based on evidence and the same being neither illegal nor irregular nor without jurisdiction, could not be interfered with by High Court.

Kala Khan v. Ayub Khan 1992 MLD 2536; Muhammad Gul v. Muhammad Afzal

1999 SCMR 724 and Muhammad Yousaf v. Sikandar PLD 1970 Pesh. 160 ref.

Sar Injam v. Abdur Razaq 1999 SCMR 2167 fol.

(d) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Pre‑emption suit‑‑‑Entitlement of vendee to receive registration fee, stamp duty and District Council fee ‑‑‑Validity‑‑‑Pre‑emptor wanted to step into the shoes of vendee, therefore, the pre‑emptor was liable to pay all the charges whatever the vendee had spent ‑‑‑Vendee was entitled to recover such charges accordingly.

Muhammad Sadiq v. Mst. Shakeela Jameel 1983 CLC 1705 rel.

Syed Abdus Salam Sarwar for Petitioner.

Saleh Mehmood Awan for Respondent.

Date of hearing: 4th October, 1999.

JUDGMENT

2000 C L C 336

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

HIKMAT ALI SHAH‑‑‑Petitioner

versus

Mst. MIRA ‑‑‑Respondent

Civil Revision No.22 of 1997; decided on 8th October, 1999.

(a) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑5. 13(3)‑‑‑Pre‑emption suit‑‑‑"Talb‑i‑Muwathibat"‑‑‑Non‑mentioning in the plaint details about time, date, place and the name of person in whose presence declaration of intention to pre‑empt the sale was made ‑‑‑Effect‑‑­Not necessary for the plaintiff/pre‑emptor to mention such details of "Talb‑i­Muwathibat" in the plaint.

Ameer Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 $C

883 ref.

(b) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑(. 13(3)‑‑‑Qanun‑e‑SHahadat (10 of 1984), Art.74‑‑‑Pre‑emption right; exercise of‑‑‑" Talb‑i‑Ishhad"=‑‑Sending of photo copy of the original notice ‑‑‑Validity‑‑‑Vendee under the provision of S.13(3), North‑West Frontier Province Pre‑emption Act, 1987 has, to be served with original notice of "Talb‑i‑Ishhad"‑‑‑Photo copy could. not be treated as original‑‑­Where the pre‑emptor retained the original notice with himself and sent photo copy of the same to the vendee, Lower Appellate Court dismissed the suit of the pre‑emptor ‑‑‑Suit was rightly dismissed for want of non‑compliance of S.13(3), North‑West Frontier Province Pre­emption Act, 1987.

E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; PLD 1978 SC (AJ&K) 37 and E.A. Evans v. Muhammad Ashraf NLR 1979 (Civil) 178 ref.

S. Zafar Abbas Zaidi for Petitioner.

Dost Muhammad Khan for Respondent.

Date of hearing: 4th October, 1999.

2000 C L C 343

[Peshawar]

Before Shahzad Akbar Khan, J

ALTAF HUSSAIN ‑‑‑Petitioner

versus

FIDA HUSSAIN SHAH‑‑‑Respondent

Civil Revision No.30 of 1999, decided on 1st October, 1999.

(a) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), O.VI, R.2‑‑‑Pre‑emption suit‑‑‑Failure to give details of material' facts in pleadings‑‑‑Effect‑‑‑Giving a detailed narration of the evidence in pleadings was not required as the same was likely to be produced during recording of evidence‑‑‑Mere mentioning of material facts in the pleadings as sufficient regarding which the parties were required to produce their evidence at the trial stage.

(b) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Pre‑emption suit‑‑‑Omission to mention name of the infoFmant of sale in notice of "Talb‑i‑Ishhad"‑‑‑Effect‑‑‑Such omission was of no significance and the same could very conveniently be ignored.

1995 SCMR 958 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XVIII, R.2‑‑‑Production of evidence‑‑‑Purpose‑‑‑Parties under the provision of O.XVIII, R.2, C.P.C. are required to prove the issues and not the pleadings.

(d) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. I3‑‑‑Pre‑emption suit‑‑‑ "Talb‑i‑Muwathibat"‑‑‑Onus to prove‑‑­Concurrent findings of both the Courts below ‑‑‑Pre‑emptor failed to establish the factum of "Talb‑i‑Muwathibat" as the same was a pre‑condition for filing a suit to enforce the right of pre‑emption ‑‑‑Effect‑‑‑Both the Courts below concurrently dismissed the suit of the pre‑emptor for non‑fulfilment of "Talb‑i‑Muwathibat"‑‑‑Judgments of both the Courts below were neither perverse nor illegal and there was no misreading of evidence.

1999 SCMR 958; 1997 MLD 3062 and PLD 1997 SC 883 ref.

Khurshid Anwar for Petitioner.

Muhammad Younis Thaheem for Respondent.

Date of hearing: 24th September. 1999

2000 C L C 353

[Peshawar]

Before Shahzad Akbar Khan, J

ABDULLAH KHAN‑‑‑Petitioner

versus

ZULFIQAR ALI ‑‑‑ Respondent

Civil Revision No.31 of 1999, decided on 15th October, 1999

(a) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 5‑‑‑Right of pre‑emption ‑‑‑Sale of suit land by vendee ‑‑‑Executing of power of attorney by vendee and entry of attested mutation in Revenue Record‑‑‑Effect‑‑‑Power of attorney or a mere unattested mutation would, in the least, import an irresistible conclusion of sale‑‑‑Such documents were a sine qua non for the enforcement of a right of pre‑emption. [p. 356] A

(b) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑5. 5‑‑‑Civil Procedure Code (V of 1908), O.VI1, R.11 ‑‑‑ Pre‑emption suit‑‑‑Delivery of possession of suit land by vendee to some other person‑‑­Such delivery of possession was based upon a power of attorney and an unattested entry of mutation in the Revenue Record‑‑‑Trial Court rejected the suit of the pre‑emptor and Lower Appellate Court upheld the decision of the Trial Court‑‑‑Validity‑‑‑Attributing of knowledge to the pre‑emptor qua the physical possession of the suit land to the subsequent purchaser was not the outcome of any legal evidence‑‑‑No consequential responsibility, thus, could be placed on pre‑emptor so as to deprive him of his valuable legal right‑‑­Both the Courts below had legally erred to be influenced by certain documents which did not assume the legal character‑‑‑Rejection of plaint under O.VII, R.11, C.P.C. was an overhaste and the same had resulted into grave miscarriage of justice‑‑‑Orders of both the Courts below were set aside being tainted with legal infirmities and case was remanded to Trial Court for trial according to law.

Haji Muhammad Iqbal Khan Kundi for Petitioner.

Muhammad Kamran Niazi and Tariq Aziz Baloch for Respondents.

Date of hearing: 15th October, 1999:

2000 C L C 357

[Peshawar]

Before Shahzad Akbar Khan, J

SALIM SHAH and another‑‑‑Petitioners

versus

IMAM DIN through Legal Heirs

and 13 others‑‑‑Respondents

Revision Petition No.36 of 1997, decided on 2nd July, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 8‑‑‑Suit for possession‑‑‑Plaintiffs claimed ownership of shop in dispute contending that shop was an evacuee property and was purchased by their predecessor‑in‑interest through auction from Settlement Department and after confirmation of said auction, permanent transfer deed was issued in their favour‑‑‑Defendants had claimed that the shop was not evacuee property, but was Muslim property and was in their possession right from times of their grandfather‑‑‑Plaintiff had admitted that predecessor‑in‑interest of defendants and defendants also were in possession of shop in dispute prior to issuance of permanent transfer deed‑‑‑Burden was on plaintiffs to prove that shop in dispute was evacuee property and that same was validly purchased by their predecessor‑in‑interest' through auction from Settlement Department, but they failed to discharge that burden as they could not produce even copy of permanent transfer deed allegedly issued in favour of their predecessor‑in‑interest‑‑‑Plaintiffs should prove their case on strength of their own evidence and they could not draw any benefit from any weakness of defendants‑‑‑Plaintiffs having themselves admitted possession of defendants of shop in dispute, said possession prima facie would raise good title in favour of defendants in respect of such property‑‑‑Plaintiffs in circumstances, had failed to prove their case.

Syed Mastan Ali Zaidi for Petitioners.

Khawaja Nawaz and Tariq Aziz Baloch for Respondents.

Date of hearing: 2nd July, 1999.

2000 C L C 399

[Peshawar]

Before Talat Qayum Qureshi, J

Mst. GUL BIBI and another‑‑‑Petitioners

versus

Mst. SAJIDA BIBI‑‑‑Respondent

Civil Revision No.81 of 1997, decided or. 29th October, 1999.

(a) Muhammadan Law‑‑‑

‑‑‑‑Gift‑‑‑Ingredients of valid gift‑‑‑Gift can be effective only if three ingredients, namely, declaration of gift, acceptance of gift and transfer of possession were proved.

(b) Muhammadan Law‑‑‑

‑‑‑‑Gift‑‑‑Gift deed executed by illiterate "Pardanasheen" lady ‑‑‑Validity‑‑­Where gift deed was not read ever and explained to such lady, execution of such deed would not be said to have been consciously executed.

Mst. Faridun Nisa v. Munshi Mukhtar Ahmad AIR 1925 PC 204 and Muhammad Nazir v. Muhammad Sarwar 1989 MLD 293 rel.

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

‑‑‑S. 115‑‑‑Inheritance‑‑‑Concurrent findings‑‑‑Suit for partition on the basis of inheritance‑‑‑Respondent/plaintiff filed such suit qua the property left by, the predecessor of patties‑‑‑Suit was contested by the petitioners/defendants, who relied on "Kabeen Nama" to substantiate that one of the petitioners/defendants was the sole owner of the disputed house‑‑­Petitioners/defendants during the trial failed to prove execution of such document and attempted to oust the respondent/plaintiff from the inheritance‑‑‑Trial Court decreed the suit and appeal was also dismissed by the Lower Appellate Court‑‑‑Validity‑‑‑Findings of both the Courts below were based on proper appreciation of evidence‑‑‑Both the Courts below had properly exercised jurisdiction vesting in them and there was no material irregularity affecting their jurisdiction‑‑‑No reason existed to interfere with the concurrent findings of facts of the Courts below‑‑‑Revision was dismissed in circumstances.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Sher Muhammad Bashir Ali and others v. Sufi Ghulam Muhayyud Din 1996 SCMR 813 ref.

Haidar Zaman Khan for Petitioners.

Khalid Rehman Qureshi for Respondents

Date of hearing: 18th October, 1999.

2000 C L C 433

[Bar Council Tribunal, Peshawar]

Before Justice Mian Muhammad Ajmal, Chairman, Muhammad Alam Khan and Syed Rahman Khan, Members

Mst. HUSSAIN ZARI‑‑‑Complainant

versus

SAID FAROSH, EX‑ADVOCATE, BUNER‑‑‑Respondent

Complaint No.T‑30 of 1998, decided on 28th August, 1999.

(a) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S. 2(A)‑‑‑Advocate‑‑‑Meaning‑‑‑Advocate means a person who is entered in any roll under the provisions of Legal Practitioners and Bar Councils Act, 1973.

(b) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S. 41‑‑‑Proceedings against Advocate‑‑‑Accused Advocate was enrolled with Bar Council of one Province and was practising law within the territorial jurisdiction of Bar Council of another Province‑‑‑Proceedings of professional misconduct against such Advocate‑‑‑Jurisdiction of Bar Council‑‑‑Tribunal of Bar Council where the accused Advocate was practising law had absolute jurisdiction in the matter.

(c) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S. 41(2)‑‑‑Complaint of misconduct‑‑‑Any person or Court can file a complaint that an Advocate has been guilty of professional or other misconduct under the provisions of S.41(2), Legal Practitioners and Bar Councils Act, 1973.

AIR 1934 Lah. 251 rel.

(d) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S. 41(2)‑‑‑Duties of Advocate‑‑‑Advocate has to uphold at all times the dignity of the legal profession as well as his own dignity as a member of the fraternity‑‑‑Courts of law always give the Advocates extreme respect and repose in them great ^trust and confidence and any betrayal of such trust not only hampers the legal profession but also the administration of justice‑‑Bar Councils have to curb such evils, in order to save the legal profession as well as the administration of justice from heing eroded.

Muazzam Jamil, Law Officer for Government of N.‑W.F.P.

Ghulam Ali Khan for the Complainant.

Shamoon Ahmad Bajwa for Respondent.

2000 C L C 793

[Peshawarl

Before Mian Mirhannrad Ajtnal

and Muliaminad‑Azam Khan, JJ

KARIM SHAH and 21 others‑‑‑Petitioners

versus

ZOOR BACHA and 21 others‑‑‑Respondents.

Writ. Petition No.570 of 1994, decided on 28th September, 1999.

Provincially. Administered Tribal Areas Civil Procedure (Special Provisions) Regulation (1I of 1975)‑‑‑ .

‑‑‑‑Constitution of Pakistan (1973), Art. 190‑Constitutional petition‑‑‑Share in royalty of forest‑‑‑Petitioners claimed 1/7th share in the royalty of the forest situated in their area which was a Provincially Administered Tribal Area‑‑‑"Jirga" was constituted to resolve such dispute‑‑‑Original members of "Jirga" were not attending the proceedings, therefore, with the consent of the parties new members of "Jirga" were appointed‑‑‑Trial Court on the basis of findings of "Jirga" decreed the suit of the petitioners‑‑‑Provincial. Government set aside the decisions of the forums below on the ground that the members of "Jirga" did not belong to the area of dispute ‑‑‑Validity‑‑­Order of the Trial Court passed on the unanimous recommendations of "Jirga" and upheld by the Additional Commissioner reflected no infirmity ­Where "Jirga" was constituted with the consent of both the parties in the light of compromise between them, the High Court could grant extraordinary relief to petitioners through such Constitutional petition‑‑‑Order of the Provincial‑ Government was set aside and that of the Trial Court restored‑‑­Petition was allowed accordingly.

Ataullah Khan for Petitioners.

Muhammad Amin Khattak for Respondents.

Date of hearing: 28th September, 1999.

2000 C L C 957

[Peshawar]

Before Jawaid Nawaz Khan Gandapur and Malik Hamid Saeed, JJ

KHIZAR AZAM KHAN‑‑‑Petitioner

versus

N.W.F.P. UNIVERSITY OF ENGINEERING

AND TECHNOLOGY through Vice‑Chancellor, Peshawar and others‑‑‑Respondents

Write Petition No. 1855 of 1999, decided on 21st December, 1999.

(a) Constitution of Pakistan (1973)‑‑­‑‑‑

.Part II, Chap. 1 (Arts. 8 to 28)‑‑‑Fundamental Rights‑‑‑Minutes of University Syndicate could not be treated as statutory in nature unless properly notified through notification/regulation/rules‑‑‑Mere provision in the minutes of Syndicate meeting could not be made basis for violation of fundamental right guaranteed in the Constitution.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Scholarship in a foreign university‑‑­Petitioner was nominated for M.Sc. Degree in Engineering Management Course in a foreign University‑‑‑Admission of petitioner was confirmed by the foreign University, but he could not proceed to complete the course on account of his transfer to some other department on deputation‑‑‑Petitioner, after his repatriation to his department approached the University in Pakistan to allow him to avail the scholarship facility which request of the petitioner was turned down‑‑‑Validity‑‑‑Agreement between the two Universities provided that every fifth nominee would be given free scholarship‑‑‑Four nominees having already joined the University abroad and petitioner being the fifth nominee would certainly qualify for grant of scholarship at the expense of foreign" University‑‑‑University in Pakistan would incur no monetary loss, if the petitioner was allowed to proceed on scholarship‑‑­Order of the University to Pakistan being illegal and without lawful authority, it was directed to refrain from interfering in the right of the petitioner to proceed and complete his two years course at foreign University.

(c) Administration of justice‑‑‑

‑‑‑‑ Judges of High Court, like other parents are also having parental feelings for the welfare of their children‑‑‑If any discrimination or injustice is done to son of a Judge and if he knocks at the door of Court for justice, the same cannot be denied to him merely on the ground that he is the son of a sitting Judge, unless some other sound reasons for depriving him to seek such remedy from a Court is shown.

Yahya Khan Afridi for Petitioner. Abdul Qadeer Khattak for Respondents.

Date of hearing: 21st December, 1999.

2000 C L C .980

[Peshawar]

Before Tariq Parvez, J

SHABBIR HUSSAIN and another‑‑‑Petitioners

versus

GOVERNMENT OF N.‑W.F.P and others‑‑‑Respondents

Civil Revisions Nos.466 and 511 of 1994 with Civil Miscellaneous No. 134 of 1998, decided on 22nd November, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑0. IX, R. 6‑‑‑Ex parte decree‑‑‑Absence of defendants‑‑‑Effect‑‑‑Date fixed for recording of evidence was in the knowledge of defendants or their representatives‑‑‑Absence of any or all representatives on such date being crucial, same was rightly considered sufficient cause to pass ex parte decree.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Q. IX, R. 13‑‑‑Ex pane, decree, setting aside of ‑‑‑Requirements‑‑­ Provisions of O. IX, R.13, C.P.C. required the proof that service of the date of hearing was not properly effected and defendant was to establish that his absence on the date fixed was under the circumstances beyond his control‑‑‑If next date of hearing was given in the presence of the defendants; no question of proper service would arise and ex parte decree could not be set aside in circumstances

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. IX, R.13‑‑‑Ex parte decree, setting aside of‑‑‑Next date was given in presence of defendants/respondents‑‑‑Trial Court passed ex parte decree‑‑‑ Application to set aside the decree was dismissed by Trial Court, but the Lower Appellate Court remitted the case to the Trial Court for decision on merits ‑‑‑Validity‑‑‑Stetting aside of ex parte decree was discretion of the Court and the same was subject to conditions as envisaged in OJIX, R.13, CIp.C.‑‑‑Where neither of the conditions mentioned in O. IX, R.13, C. P. C. could be fulfilled, setting aside such decree would tantamount to interference in the discretionary powers of the Trial Court‑‑‑Order of the Lower Appellate Court was set aside in circumstances.

Sh. Wazir Muhammad for Petitioner No. 1.

Imtiaz Ali, Addl. A.‑G. assisted by K.G. Sabri for Respondents.

Date of hearing: 19th November, 1999.

2000 C L C 1047

[Peshawar].

Before Talat Qayum Qureshi, J

SECR1yTARY TO GOVERNMENT OF N.‑W.F.P., FOREST DEPARTMENT, PESHAWAR and another‑‑‑Petitioners

versus

ABDUR REHMAN and 2 others‑‑‑Respondents

Civil Revision No. 178 of 1996, decided on 20th December, 1999.

(a) Civil‑Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 48‑‑‑Limitation Act (IX of 1908), Art.181‑‑‑Execution‑‑‑Limitation‑‑­Application for execution of a decree can be filed within a period of three years from the passage of the decree and the same is governed by residuary Art. 181 of Limitation Act, 1908.

(b) Words and phrases‑‑‑

‑‑‑‑"Fresh"‑‑‑Meaning: new, recent, newly made.

Oxford English Dictionary, ‑Vol. IV ref.

(c) Civil‑Procedure Code (V of 1908)‑‑‑

‑‑‑S. 48‑‑‑Execution proceedings‑‑‑Decision of such proceedings finally‑‑­Scope‑‑‑Decision of execution proceedings finally is the question of fact and the same has to be determined having regard to the facts and circumstances of a particular case.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 48‑‑‑Execution proceedings‑‑‑Application for execution of decree filed by the decree‑holder was kept pending due to proceedings initiated by judgment‑debtor‑‑‑Contention by judgment‑debtor was that since subsequent application for execution was filed beyond period of limitation, therefore, decree was not executable‑‑‑Validity‑‑‑Execution application was deemed to be pending so long as no final order disposing of same had been judicially passed thereon‑‑‑Any subsequent application in such a case for execution would be deemed to be one merely for the continuation of the original proceedings‑‑‑Where final judicial order terminating the execution proceedings had been passed on the application, such execution proceedings could not be revived and the subsequent application for execution would be regarded as fresh application and not one for revival and continuation of the original proceedings‑‑‑Both the Courts below repelled the contention raised by the judgment‑debtor and judgment‑debtor failed to bring any material irregularity, illegality in .exercise of jurisdiction by the Courts below‑‑‑Revision being without substance was dismissed in circumstances.

Venlappa and others v. Lakshmikant Rao AIR 1956 Hyd. 7; Muhammad Umar Khan v. Muqarab Khan and another PLD 1976 Pesh. 43 and Yar Muhammad Khan and others v. Amrumal Khushadar and others AIR 1946 Sindh 32 ref.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 48‑‑‑Limitation Act (IX of 1908), Art.181‑‑‑Execution application‑‑­Limitation‑‑‑Scope‑‑‑First application for execution of decree is governed by residuary Art.181 of Limitation Act, 1908 while the application made thereafter will be governed by six years' time limit prescribed by S.48, C.P.C.

Qazi Muhammad Ghazanfar, A.A. ‑G. for Petitioners.

Saleh Mehmood Awan for Respondents.

Date of hearing: 13th December, 1999. ,

2000CLC 1116

[Peshawar]

Before Malik Hamid Saeed

and Tariq Parvez. JJ

ANWAR RASHID ‑‑‑Petitioner

versus

Mst. MINHAJA and another‑‑‑Respondents

Writ Petition No. 1280.of 1999, decided on 11th January, 2000.

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 5, 10(3) & 12(2)‑‑‑Divorce‑‑‑Reconciliation proceedings‑‑­Constitution of Board for reconciliation‑‑‑Validity‑‑‑No such Board was required to be constituted for re‑conciliation.

(b) Provincially Administered Tribal Areas (Nifaz‑e‑Nizam‑e‑Shariah) Regulation (II of 1994)‑‑‑

‑‑‑‑Sched. I‑‑‑West Pakistan Family Courts Act (XXXV of 1964), Preamble‑‑‑Extension of West' Pakistan Family Courts Act, , 1964, to Malakand Division‑‑‑Provisions of West Pakistan Family Courts Act, 1964 are extended to Malakand Division, under Sched. I of North‑West Frontier Province Regulation, 1994.

(c) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 5, 10(3) & 12(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Dissolution of marriage‑‑‑Wife filed suit for repudiation of her Nikah on attaining the age of puberty‑‑‑Marriage between the spouses was not consummated‑‑‑Family Court after following the proper procedure for trial decreed the suit‑‑‑Contention raised by the husband was that Family Court was supposed to constitute a Board for reconciliation between the spouses‑‑‑Validity‑‑‑Wife on attaining the age of puberty, exercised her right under the law and proper procedure was followed by the Family Court‑‑‑Where on illegality or irregularity had been committed by the Family . Court, such judgment could not be interfered with in the Constitutional jurisdiction of High Court‑‑‑Constitutional petition being without merit was dismissed in circumstances.

Mehmood Butt v. Mst. Bibi Hanfa 1986 CLC 3025 ref.

Sikandar Khan for Petitioner. Zia‑ur‑Rehman for Respondent No. l (on Pre‑Admission Notice).

2000 C L C 1122

[Peshawar]

Before Jawaid Nawaz Khan Gandapur

and Malik Hamid Saeed, JJ

AMIR ALAM KHAN‑‑‑Petitioner

versus

Mst. JEHAN PARI and 4 others‑‑‑Respondents

Writ Petition No. 1438 of 1996,. heard on 22nd December, 1999.

(a) West Pakistan Family Courts Act (XXXV of 1964)•‑‑

. S, 5…..Provincially AdministeredTribal Areas (Nifax‑emNizam‑e‑Shariah) Regulation (11 of 1994), 3,7 & Sched, 1, Item 2.‑.Suit for dissolution of marriage by wife and suit for conjugal rights by the husband=‑‑Appointment of niedlator with consent of parties‑‑.Objection was raised to the disposal of suit for dissolution of marriage and suit for restitution of conjugal rights by the Courts below having exercised the jurisdiction under the pmvisiuns of Provincially Administered Tribal Areas (Nifaz‑e‑Nizam‑e‑Shariah) Regulation. 1964‑‑‑Validity‑‑‑No miscarriage of justice was caused by adjudication of the matter by the Courts established under the said statute. .

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑S. 5‑‑‑Provincially Administered Tribal Areas (Nifaz‑e‑Nizam‑e‑Shariah) Regulation (Il of 1994), S.7 & Sched. Item 2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dissolution of marriage‑‑­Appointment of mediator with consent of parties‑‑‑Respondent/wife filed a' suit for dissolution of marriage whereas the petitioner/husband filed a suit for restitution of conjugal rights‑‑‑Trial Court with the consent of both the parties appointed a mediator‑‑‑Marriage was dissolved on the basis of Khula' a and suit of petitioner/husband was dismissed‑‑‑Objection was raised by t petitioner/husband over the jurisdiction of the Courts below‑‑‑Validity‑‑‑ . Courts below had decided the case keeping in view the evidence on record and exercising their own discretion in the matter‑‑ ‑Petition being without merit was dismissed accordingly.

Afridi Khan for Petitioner. Saleem Dil Khan for Respondent No. 1.

Date of hearing: 22nd December, 1999.

2000 C L C 1124

[Peshawar]

Before Jawaid Nawa2 Khan Garulapur and Malik Hamid Saeed, JJ

MUHAMMAD JAMIL and 35 others‑‑‑Petitioners

versus

UNIVERSITY OF PESHAWAR through

Registrar, University of Peshawar

and 3 others‑‑‑Respondents

Writ Petition No. 1348 of 1999, decided on 22nd December, 1999.

University of Peshawar Act (11 of 1974)‑‑‑

‑‑‑‑S. 31(1)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Candidates appeared for the examination of M.Ed. conducted by the University‑‑‑Institution to which such candidates belonged being not affiliated with the University, candidates were not allowed to take the examination‑‑‑Candidates were allowed to take examination under the direction of High Court passed in a Constitutional petition at their own risk and cost and the result of the candidates was to be subject to the decision of the representation of the said institution by the Syndicate of the University‑‑‑University Syndicate having rejected the representation for affiliation made by the institution dispute arose with regard to the declaration of the result of the candidates‑‑‑Validity‑‑‑Admission granted to the candidates was without affiliation of the institution with the University and the same was in violation of the provisions of the University of Peshawar Act, 1974‑‑‑When the , representation was rejected by the Syndicate, High Court was unable to issue any direction to the University, to declare such result of the candidates‑‑‑Matter having already been decided in earlier Constitutional petition, fresh petition was dismissed in limine.

Qazi Zakiuddin Khan for Petitioners. Mrs. Nusrat Yasmeen for Respondents.

Date of hearing: 22nd December, 1999.

2000 C L C 1127

[Peshawar]

Before Jawaid Nawaz Khan Gandapur, J , KARIM KHAN‑‑‑Petitioner.

versus

ALLAH DAD KHAN and another‑‑‑Respondents

Civil Revision No. 86 of 1999, decided on 9th December, 1999.

(a) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

.i ‑‑‑‑S. 13‑‑‑Pre‑emption suit‑‑‑ "Talb‑i‑Muwathibat"‑‑‑Meaning and scope‑‑‑ "Talb‑i‑Muwathibat" is a demand made immediately after acquiring knowledge of sale ‑‑‑Pre‑emptor has to declare his intention to exercise his right of pre‑emption in the sitting or meeting (Majlis) in which he comes to know about the sale transaction.

(b) North‑West Frontier Province Pre‑eruption Act (X of 1987)‑‑

‑‑‑‑S. 13‑‑‑Pre‑emption suit ‑‑‑Talb‑i‑Muwathibat, making of‑‑‑Delay in such Talb‑‑‑Concurrent findings of Courts below ‑‑‑Pre‑emptor did not make such demand in the meeting where he came to know about the sale of the suit property, rather he went to Patwari Halqa to inquire about the sale and there the pre‑emptor made such demand‑‑‑Validity‑‑‑Where the pre‑emptor did not make any declaration regarding his intention to pre‑empt .the suit transaction in the presence of the person who first of all informed the pre‑emptor about the sale, pre‑emptor had lost his‑right of pre‑emption by delaying such pronouncement of his intention to pre‑empt the transaction‑‑‑Delay caused in making the requisite Talb‑i‑Muwathibat invalidated the right of pre‑emption­‑Both the Courts below committed no illegality or irregularity nor the evidence was misread or non‑read‑‑‑High Court in exercise of revisional jurisdiction refused to interfere in such order of both the Courts below‑‑­ Revision was dismissed in. limine. Haji Saadullah Khan Miankhel for Petitioner.

2000 C L C 1131

{ Peshawar}

Before Abdur Rauf Khan Lughmani, J

Mst. MUMTAZ alias MANO‑‑‑Petitioner

versus

FALAK SHER and 2 others‑‑‑Respondents

Revision Petition No.54 of 1996, decided on 22nd December, 1999.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 127‑‑‑Good faith ‑‑‑Pardahnashin lady‑‑‑Transaction of property‑‑­Onus to prove‑‑‑Plaintiff a Pardahnashin lady was sister of the defendant‑‑­Mutation of gift allegedly made by plaintiff in favour of the defendant‑‑­Validity‑‑‑Where the plaintiff and the defendant were closely related and latter stood in fiduciary relation to the former, defendant had to exercise and establish good faith in dealing with the plaintiff‑‑‑Good faith, absence of fraud and undue influence as a general rule was to be presumed but there was an exception where fiduciary or quasi‑fiduciary relations existed‑‑‑Such exception was reflected in Art.127, Qanun‑e‑Shahadat, 1984‑‑‑Burden of proof shifted to the defendant to establish that the gift mutation was rightly attested in circumstances.

(b) Specific Relief AM (I of 1877)‑‑‑.

‑‑‑‑S. 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.127‑‑‑Suit for declaration‑‑­Transaction of property ‑‑‑Pardahnashin lady‑‑‑Good faith‑‑‑Onus to prove mutation of gift allegedly made in favour of defendant by the plaintiff, who was a Pardahnashin lady‑‑‑Defendant was brother of the plaintiff and onus to prove such transaction was on the former‑‑‑Trial Court decreed the suit while the Lower Appellate Court reversed the judgment and dismissed the suit‑‑­Validity‑‑‑Where the defendant failed to establish that such transaction was made in his favour out of free‑will and the disputed mutation was correct and genuine, judgment and decree of the Lower Appellate Court was set aside and that of the Trial Court was restored. Inche Norih Binte Muhammad Tahir v. Sahik Allie Bin Omar Bin Abdullah AIR 1929 PC 3 ref..

Rustam Khan Kundi for Petitioner..

Muhammad. Iqbal Khan Kundi for Respondents Nos.2 and 3.

Date of hearing: 3rd March, 1999.

2000 C L C 1138

[Peshawar]

Before Muhammad Azam Khan, J

NOOR REHMAN and others‑‑‑Petitioners'

versus

MUHAMMAD YOUSUF‑‑‑Respondent

Civil Revision No .196 of 1999, decided on 6th January, 2000.

(a) Co‑sharer‑‑‑

‑‑‑‑Where no regular partition has taken place between the contesting parties, co‑sharer has a right in each and every Khasra number of the suit land irrespective of the quantity and quality ‑‑‑Co‑sharer who is ‑in exclusive possession of a specific portion of a Joint property cannot alienate, transfer or change the same unless a regular partition takes place between the co­sharers.

1989 SCMR 130 and 1999 CLC 598 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑S. 115 & O. XXXIX, Rr. 1, 2‑‑‑Partition of joint property‑‑‑Dispute between co‑sharers‑‑‑Defendants were in possession of some portion of undivided property and intended to construct on the same‑‑‑Plaintiff preferred suit against such act of defendants‑‑‑Trial Court refused to grant interim injunction, but the same was granted by Lower Appellate Court‑‑­ Validity‑‑‑Defendants failed to show that order of the Lower Appellate Court was either without jurisdiction or was suffering from material irregularity or illegality‑‑‑Effect‑‑‑Where none of the ingredients contained in S.115, C.P.C. were brought on record, revision petition was dismissed in. limine.

Abdul Qayum Sarwar for Petitioner.

Ziaur Rehman Rspondent (on Pre‑Admission Notice).

2000 C L C 1228

[Peshawar]

Before Mrs. Khalida Rachid and Nasirul Mulk, JJ

SANI GUL‑‑‑Petitioner

versus

CIVIL JUDGE‑III, SWAT and another‑‑‑Respondents

Writ Petition No.276 of 1999, decided on 27th January, 2000.

(a) Muhammadan Law‑‑‑

‑‑‑‑Marriage‑‑‑Foster brother and sister ‑‑‑Nikah between such relations is prohibited in Islam and Shariah and such marriage is void, which is perpetual and absolute‑‑‑Such marriage, therefore, does not create any civil rights or obligations between the parties ‑‑‑Offsprings of such void marriage are illegitimate.

Al‑Qur'an: Surah Nisa, Verse 23, Section (para.) 4 and Jamea

Tirmizi Sharif, Vol, l, Hadith No.782, p.531 ref.

(b) Muhammadan Law‑‑‑

‑‑‑‑ Foster brother and sister‑‑‑Proof‑‑‑Evidence of the woman who has nurtured both spouses is valid and enough to prove the relationship by reason of fosterage. B

Jamea Tirmizi Sharif, Vol. l, Hadith No.782, p.533; Sahih Bukhari, Vol. III, p.80 and Sahih Bukhari, Vol. 1, p.915 ref.

(c) West Pakistan Family. Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dissolution of, marriage on ground of fosterage ‑‑‑Spouses were foster brother and sister and Family Court dissolved the marriage‑‑­Contention raised by husband was that to prove such ground one or two males or two female witnesses were to be produced‑‑‑Validity‑‑‑Where evidence of the woman who had nurtured both the spouses was produced such evidence was valid enough to prove the relationship‑‑‑Marriage was rightly dissolved by the Family Court.

A1 Qur'an: Surah Nisa, Verse 23, Section (para.) 4; Jamea Tirmizi, ,Sharif, Vol.l, Hadith No.782, p.533; Sahih Bukhari, VOl.III, p.80; Sahih

Bukhari, Vo1.1, p.915 and Jamea Tirmizi Sharif, Vo1.1, p.531, Hadith No.779 ref..

Said Tahar Khan for Petitioner.

2000 C L C 1627

[Peshawar]

Before Nasirul Mulk and Shah Jehan Khan, JJ

Mst. SHAHEEN ‑‑‑Petitioner

versus

JAFFAR KLAN and another‑‑‑Respondents

Writ Petition No.784 of 199'8, decided on 5th May, 2000.

(a) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑S. 25‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Custody of minor‑‑‑Two Courts below had concurrently found the welfare of minor son in living with his mother‑‑‑Concurrent findings of fact recorded by two Courts below could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

PLD 1953 Lah. 73; PLD 1956 Lah. 484; PLD 1975 Lah. 86; PLD 1985 Pesh. 156; 1999 SCMR 1834 and 1993 CLC 2116 ref.

(b) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑S. 25‑‑‑Constitution of Pakistan ‑(1973), Art. 199‑‑‑Constitutional petition‑‑‑Custody of female minor‑‑‑Marriage between spouses had been dissolved through divorce and after the divorce both had contracted second marriage‑‑‑Mother under Injunction of Islam had been held entitled for custody of minor girl aged about 8/9 years till the age of puberty‑‑‑Trial Court after evaluating evidence led by parties granted custody of minor daughter to mother, but Appellate Court influenced by the fact of second marriage of mother of minor girl, found that mother after second marriage had lost her right of custody over minor girl‑‑‑Validity‑‑‑Minor girl, who had not attained age of puberty, would remain in Hizanat of her mother under Injunction of Islam‑‑‑Welfare of minor being dominant consideration in matter of custody mother of minor girl though had contracted second marriage, but being a teacher by profession could provide better welfare to her daughter as against her father who had also contracted a second marriage‑‑‑Order of Appellate Court whereby it was found that mother had lost her right of custody over minor girl was declared illegal by High Court in exercise of its Constitutional jurisdiction.

1999 SCMR 1834 and PLD 1953 Lah. 73 ref.

Nawabzada Saleem Dil Khan for Petitioner.

Abdus Samad Khan for Respondents.

Date of hearing: 5th May, 2000.

2000 C L C 1669

[Peshawar]

Before Talat Qayurn Qureshi, J

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Petitioners

versus

Messrs COMRADE CONSTRUCTION CO. LIMITED‑‑‑Respondent

Civil Revision No.86 of 1999, decided on 14th February, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 82 & O. XXI, R. 41‑‑‑Execution of decree‑‑‑Attachment during execution proceedings‑‑‑Executing Court during execution proceedings attached vehicles and development funds of judgment‑debtor‑‑‑Attachment order had been called in question by judgmnt‑debtor on two grounds firstly, that Executing Court had not given specific time to Government/judgment‑ debtor for payment of decretal amount prescribed in S.82, C.P.C. and Executing Court in circumstances had not followed procedure as laid down in said section; secondly, that Court which had passed decree did not prepare decree‑sheet, as provided under the law and that in absence of decree‑sheet, decree could not be executed‑‑‑Validity‑‑‑Both the grounds were baseless and after filing execution application notice was issued to judgment‑debtor and representative of judgment‑debtors appeared before Executing Court and sought various adjournments to make payment of decretal amount, but despite lapse of more than three months judgment‑debtor could not pay the said amount‑‑‑Sufficient time was granted to judgment‑debtor for payment of decretal amount, but they failed to make payment‑‑‑Contention of judgment‑debtors that Court had not followed procedure laid down in S.82, C.P.C. was repelled, in circumstances‑‑‑Objection of judgment­ debtors that no decree‑sheet was prepared by Court passing decree, had also no force because decree‑sheet was duly prepared by Court and copy of said decree.‑sheet was submitted to Executing Court‑‑­Judgment‑debtors having failed to show that order passed by Executing Court was without jurisdiction or illegal or Executing Court had failed to exercise jurisdiction vested in it or had committed any irregularity, order of Executing Court could not be interfered with in revisional jurisdiction of High Court.

Punjab Province v. Shah Abdul Ghani 1988 MLD 2912; Pakistan through Director Works v. Sarwar & Co. 1988 CLC 1817 and Pakistan through Secretary, Ministry of Works v. Mrs. Khalid Nazir 1991 CLC 563 ref.

Qazi Muhammad Ghazanfar, A.A..‑G. for Petitioner. Muhammad Tariq Khan Tanoli for Respondents.

Date of hearing: 14th February, 2000.

2000 C L C 1680

[Peshawar]

Before Sardar Muhammad Raza

and Mrs. Khalida Rachid, JJ

ABDUL JALIL‑‑‑Petitioner

versus

Mst. NUSRAT BEGUM and others‑‑‑Respondents

Writ Petition No. 1754 of 1998, decided on. 14th March, 2000.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑‑Ss. 5 & Sched. 14 & 19‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.9‑‑‑Court Fees Act (VII of 1870), S.7(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for maintenance‑‑‑Appeal against judgments and decree of Family Court‑‑‑Court‑fee payable‑‑‑Family Court granted decree for maintenance at the rate of rupees one thousand per month in favour of plaintiff‑wife including past maintenance as well‑‑­Appellate Court, on appeal against judgment and decree of Family Court, directed appellant/husband to affix court‑fee on memorandum of appeal under S_7(2) of Court Fees Act, 1876, within specified period‑‑‑Appellant husband having failed to pay court‑fee his appeal was dismissed‑‑‑Validity‑‑­Court‑fee of rupee one was to be affixed on plaint before Family Court under S.19 of West Pakistan Family Courts Act, 1964. in North‑West Frontier Province‑‑‑Section ~19 of the said Act had specifically mentioned word "plaint" which would be deemed to have excluded memorandum of appeal‑‑­Memorandum of appeal, in circumstances, would be liable to be affixed ad valorem court‑fee on subject‑matter of dispute as provided by S.7 of Court Fees Act, 1870‑‑‑Mode of valuation for purpose of court‑fee on memorandum of appeal would be ten times the value of maintenance granted for a period of one year‑‑‑Value for purpose of court‑fee in the case amounted to Rs.1,20,000‑‑‑Appellant/petitioner having failed to affix a required court‑fee within specified period, this appeal was rightly dismissed by Appellate Court below.

Mirza Daud Baig v. Additional District Judge, Gujranwala 1987 SCMR 1161 ref.

Muhammad Aman Ullah for Petitioner. Murtaza Khan Durrani for Respondent.

Date of hearing: 14th March, 2000.

2000 C L C 1704

[Peshawar]

Before Mian Shakarullah Jan

and Talat Qayum Qureshi, JJ

INHAM KHAN‑‑‑ Petitioner

versus

Mst. ROBINA GUL and 2 others‑‑‑Respondents

Writ Petition No.96 of 1999, decided on 15th March, 2000.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss.‑5, Sched. & 9(6)‑‑‑West Pakistan Family Courts Rules, 1965, R.13‑‑­Constitiution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for jactitation of marriage‑‑‑Ex parte decree, setting aside of‑‑‑Suit having been decreed ex parte, defendant/ petitioner filed application for setting aside said decree, but such application was concurrently dismissed by Courts below or, ground that application having been filed after two and half months from passing of decree, was barred by time‑‑‑Defendant/petitioner who was involved in a murder case, was confined in jail and .summons through registered post were despatched only one day before the date of hearing of case which could not reach the petitioner in time‑‑‑Service of petitioner, in circumstances, was not proper‑‑‑Application for setting aside ex parte decree had to be made "within reasonable" time as provided in S.9(c) of West Pakistan Family Courts Act. 1964 and no fixed time of limitation had been prescribed‑‑‑Rule 13, West Pakistan Family Courts Rules, 1965, providing thirty days for setting aside ex pane decree, being not in' consonance with positive provision of the Act whereunder application for setting aside ex parte decree could be filed within reasonable time, would not prevail over the provisions of said Act‑‑‑Considering that petitioner was confined in jail and summons having not been served on him properly, his application for setting aside decree filed through his attorney was within reasonable time‑‑‑High Court set aside concurrent judgments of Courts below in exercise of its Constitutional jurisdiction, remanded case for deciding the application for setting aside ex parte decree afresh, within specified period.

Matloob Ali Khan v. Additional District Judge, East Karachi and others 1988 SCMR 747 ref.

Qazi Muhammad Asif for Petitioner. Khan Afzal Khan for Respondents.

Date of hearing: 15th March, 2000.

2000 C L C 1740

[Peshawar]

Before Mian Shakirullah Jan

and Talat Qayum Qureshi, JJ

MUHAMMAD IQBAL alias KALA KHAN‑‑‑Petitioner

versus

CIVIL JUDGE‑V having Jurisdiction

as Rent Controller, Abbottabad

and 2 others‑‑‑Respondents

Writ Petition No.42 of 2000, decided on 30th March, 2000.' .

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 2(c)(i) & 13(3)(ii)‑‑‑Relationship of landlord and Tenant‑‑‑Proof‑‑­Tenant denied, relationship of landlord and tenant between the parties contending that the shop was owned by his brother who had purchased same through registered, sale‑deed and that his brother had challenged validity of registered deed in respect of said shop in the name' of grandfather of landlord in a suit which was pending adjudication in a competent Court‑‑‑Contention of tenant had .been repelled by both Rent Controller and Appellate Authority‑‑‑Validity‑‑‑Tenant not only himself had admitted tenancy in his cross‑examination, but also had failed to produce his brother who allegedly was owner of the shop‑‑‑Independent witnesses produced by landlord had deposed that tenant had paid rent of shop to landlord in their presence‑‑­Statements of said witnesses were sufficient to establish that relationship of landlord and tenant ‑ existed between the parties‑‑‑Concurrent findings of Courts below with regard to existence of relationship of landlord and tenant between the parties based on unrebutted evidence on record, cold not be interfered with.

1. CLC 1146; Karim Bakhsh v. Haji Ghulam Dastgir and 5 others 1996 CLC 1940; Muhammad Ashraf v. Faqir Muhammad 1994 MLD 601; Sub‑Divisional Officer v. Vidya Parchank Mandil 1997 MLD 933; Iqbal and others v. Mst. Rabia Bibi PLD 1991 SC 242 and Muhammad Ishaq v. Syed Muhammad Zubair 1996 MLD 797 ref.

Malik Zulfiqar Hussain for Petitioner. Fazal‑e‑Gul Khan for Respondents.

Date of hearing: 30th March, 2000.

2000 C L C 1855

[Peshawar]

Before Shahzad Akbar Khan, J

Mst. NUSRAT KHURSHID‑‑‑Petitioner

versus .

SHAH JEHAN‑‑‑Respondent

Civil Revision No. 55 of 1999. decided on 25th February. 2000.

(a) North‑West Frontier Province Pre‑emption Act, (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Pre‑entption‑‑‑Failurc to make 1'a1b‑e=f.1uwathibat and Talb‑e­Ishhad‑‑‑Effect‑‑‑Failure in making Talbs is a cause which produces the effect of extinguishing/invalidating the right of pre‑emption ‑‑‑Pre‑emptor is required to establish that lie has carried out the purposes of law by making such Talbs (demands) in such a manner which is not incompatible with the relevant circumstances of the case.

(b) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Pre‑emption‑‑‑Failure to prove Talb‑e‑Muwathibat‑‑‑Effect‑‑‑Such Talb was the basis on which further proceedings were dependent‑‑‑Where the first Talb was not proved. the second Talb would have no footing‑‑­Non‑proving of the first Talb would dissolve the effect of the second Talb

(c) North‑West Frontier Province Pre‑emption Act (IX of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), 5.115‑‑‑Revision‑‑­Interference by High, Court‑‑‑Scope‑ ‑Pre emption suit‑‑‑Concurrent findings of fact by the Courts below‑‑‑Failure to make Talb‑e‑Muwathibat and Talb‑e­Ishhad according to law‑‑‑Delay in making "Talb‑e‑Muwathibat"‑‑‑Effect‑‑­Both the Courts below concurrently found that the two Talbs were not made in accordance with law‑‑Validity‑‑‑Where there was no element of misreading or non‑reading or perversity in the judgments of both the Courts below and the same were based on sound reasons, such judgments did not call for any interference by High, Court in exercise of its revisional jurisdiction under S.115, C.P.C.

Zafar Ali v. Zainul Abidin 1992.SCMR 1886 ref.

Sardar Allah Nawaz Khan Sadozai for Petitioner. Syed Mastan Ali Zaidi for Respondent.

Date of hearing: 25th February, 2000.

2000 C L C 1863

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

HASHIM KHAN and others‑‑‑Petitioners

versus

MIR BAZ KHAN through Legal Heirs and others‑‑‑Respondents

Civil Revision No. 10 of 1999, decided on 25th April, 2000.

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

‑‑‑‑S. 3‑‑‑Alienation of property by limited owner beyond. her legal share‑‑­Widow of the deceased was a limited owner in the estate and she sold the whole estate to the respondents‑‑‑Petitioners were also legal heirs of the deceased and had assailed such transactions on the ground that the widow could not alienate the suit property beyond her legal share‑‑‑Trial Court decreed the suit whereas the Appellate Court reversed the findings of the Trial Court and dismissed the suit‑‑‑Validity‑‑‑Widow was entitled to inherit the property only to the 'extent of her share under the provision of S.3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and the remaining was to devolve on the other legal heirs of the deceased‑‑‑Widow, thus, .was not entitled to dispose of the property by way' of sale beyond her legal share in the estate of the deceased‑‑Judgment and decree of the Appellate Court was set aside and that of the Trial Court restored by High Court.

Muhammad Shaft v. Ibrahim. PLD 1955 FC 102: Rehmat Bibi v. Ibrahim PLD 1966 SC 349 and Haider Shah and 5 others v. Mst. Roshanaee and 9 others,1996 SCMR 901 ref.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art. 120‑‑‑Suit by co‑sharer‑‑‑Limitation‑‑‑Losing title or remedy on account of influx of time‑‑‑Validity‑‑‑Where property in dispute was situated in joint "Khata" and both the parties were co‑sharers, question of losing title or remedy on account of influx of time hardly arose.

Allah Wasaya arid 3 others v.. Rahim Bakhsh and another 1991 SCMR 1369; Mst. Namdara and 3 others v. Mst. Sahibzada and 2 others 1998 SCMR 996 and Nazir Ahmad and others v. Abdullah and others 1997 SCMR 281 ref:

Dost M.uhamaiad Khan for Petitioners.

H. Saadullah Khan Mian Khel‑for. Respondent, No.1 (through legal heirs).

Date of hearing: 25th April, 2000.

2000 C L C 1932

[Peshawar]

Before Shah Jehan Khan, J

MUHAMMAD HUSSAIN‑‑Petitioner

versus

MUHAMMAD IBRAHIM KHAN and others‑‑‑Respondents

Civil Revision No.225 of 1993, decided on 22nd May, 2000.

Specific Relief Act (1 of 1877)‑‑

‑‑‑‑Ss. 9, 42 & 54‑‑.‑Qanun‑e‑Shahadat (10 of 1984), Art 100‑‑‑Forcible dispossession from property‑‑‑Suit for declaration, permanent injunction and possession‑‑‑Plaintiff had claimed that suit land which was validly purchased by his father remained in ownership/possession of his father till his death and thereafter it devolved upon him through inheritance and he remained in its possession as owner, but later on in 1974 possession of suit property was forcibly taken by father of one defendant and predecessor‑in‑interest of rest of the defendants‑‑Plaintiff by producing documentary and oral evidence had fully established that land in dispute was purchased by his father and was in his cultivating possession‑‑‑Deposition of person Who had been in cultivating possession of land on behalf of father of plaintiff, could not be shattered in cross‑examination‑‑‑Suit filed by plaintiff was decreed by Trial Court, but Appellate Court reversed said decree on two grounds firstly, that sale‑deed in respect of property in dispute was neither registered nor presumption of truth was attached with it; ‑secondly, that scribe of sale‑deed or marginal witness was not produced at the trial and also that description of property had not been given in sale‑deed‑‑‑Finding of Appellate Court regarding non­-registration of sale‑deed was not justified because at the time of execution of sale‑deed, Registration Act, 1908 was not applicable in the .area concerned and deeds were used to be executed under prevailing local customs of area commonly known as "Dastoor‑ul‑Amal Chitral" wherein no formal procedure for execution of sale‑deed existed‑ but sale‑deeds were to be executed to the satisfaction of parties concerned‑‑‑Said deed was not required to be attested by marginal witnesses nor it was necessary to disclose name of, scribe‑‑‑Sale‑deed in respect of property in dispute, therefore, could not be brushed aside for want of registration or production of marginal witnesses or scribe thereof‑‑‑Presumption of truth was attached to the sale‑deed in view of Art. 100 of Qanun‑e‑Shahadat, 1984 as the deed was more than thirty years old‑‑‑Plaintiff having fully established that he had been forcibly dispossessed by defendants from suit land, Trial Court had rightly decreed plaintiff's suit‑‑‑Judgment. of Appellate Court whereby judgment and decree passed by Trial Court were reversed, suffering from misinterpretation of law and facts, was set aside and judgment and decree passed by Trial Court were restored by High Court.

Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others 1985 SCMR 214; Ali Ahmad alias Ali Ahmed Mian v. The State PLD 1962 SC 102; S.M. Zahir v. ~ Fazal Ali Ajmeri 1974 SCMR 490; Hafiz Muhammad Ramzan and others v. Muhammad Khalique 1991 CLC 417; Faizul Haque and others v. Noor Mealy and another PLD 1960 Dacca 835 and Ghulam Rasool and others v. Sardar‑ul‑Hassan and another 1997 SCMR 976 ref.

Jehazeb Rahim, Bar‑at‑Law for Petitioner. M. Sabahuddin Khattak for Respondents.

Date of hearing: 17th April, 2000.

2000 C L C 1955.

[Peshawar]

Before Mian Shakirullah Jan

and Talat Qayum Qureshi, JJ

Messrs FRIENDS VEGETABLE GHEE MILLS

(PRIVATE) LIMITED‑‑‑Appellant

versus

PRIVATIZATION COMMISSION, MINISTRY

OF FINANCE, GOVERNMENT OF PAKISTAN

through Chairman and 2 others‑‑‑Respondents

First Appeal from Order No. l of 1998, decided on 6th April, 2000.

(a) Civil Procedure Code (V of 1908)‑

‑‑‑‑S. 114, O.VIII, R.10, O.XVII, R.3 & O.XLVII, R.1‑‑‑Non‑filing of written statement‑‑Striking off defence of defendants‑‑‑Review‑‑‑Defendants having failed to file written statement as per direction of Trial Court, defence of defendants was struck off by Trial Court under OXVII, R.3, C.P.C.‑‑­Validity‑‑‑Non‑filing of written statement at the most would attract provisions of O.VIII, R.10, C.P.C. and not O.XVII, R.3, C.P.C. which was for the non‑production of evidence‑‑‑None of said provisions contained striking off defence which completely disentitled defendants to participate in subsequent proceedings‑‑‑Defendants having offered sufficient reasons for non‑filing of written statement as per direction of Court, Trial Court rightly set aside order of striking off defence of defendants accepting their review application holding that case should have been decided on merits instead of technicalities especially when huge amount was involved in case.

Qamrul Islam v. Institute of Chartered Accountants of Pakistan 1999 MLD 1805; Riaz Qasim v. Messrs A.M.A. (Pvt.) 1999 CLC 445; United Bank Ltd. Canadian Apparel Company Ltd. PLD 1995 Kar. 577; Lal Shah v. Muhammad Ishaq PLD 1977 Lah. 1058; Dost Muhammad and another v. Rais Satik and another PLD 1962 (W.P.) Quetta 82; 1997 MLD 2348; 1999 CLC 1856; PLD 1987 SC 22 and PLD 1997 Lah. 722 ref.

(b) Administration of justice‑

Courts always lean in favour of adjudication on merits rather than stifling proceedings on technicalities.

PLD 1997 Lah. 722 ref.

Malik Fazal Hussain for Appellant. Khalid‑ur‑Rehman Qureshi for Respondents.

Date of hearing: 4th April, 2000..

2000 C L C 2008

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

MUHAMMAD YASIN KHAN and 15 others‑‑‑Petitioners

versus

AKHTAR NAWAZ KHAN and 21 others‑‑‑Respondents

Civil Revision No. 10 of 1995, decided on 7th April, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑0. XIV, R. 1‑‑‑Issues, framing of‑‑‑Object‑‑‑Failure to decide suit according to the issues framed‑‑‑Jurisdiction of Court‑‑‑Validity‑‑‑Where a material point not raised in the pleadings had come to the knowledge of the Trial Court during the course of evidence, the Court might frame an issue regarding same and then try the suit‑‑‑Object of framing of issues was to ascertain the real dispute between the parties by narrowing down the area of conflict and determining where the parties differ‑‑‑Both the Courts had decided the suit against the plaintiff on the point which was not in. issue‑‑­Judgments and decrees of both the Courts below were set aside and the case was remanded to the Trial Court for decision afresh in accordance with the pleadings of the parties.

S. Zafar Abbas Zaidi for Petitioners.

Dost Muhammad Khan for Respondents.' .

Date of hearing: 27th March, 2000.

2000 C L C 2015

[Peshawar]

Before Sardar Muhammad Raza

and Mrs. Khalida Rachid, JJ

NARGIS BEGUM‑‑‑Petitioner

versus

ZEBAR SHAH and others‑‑‑Respondents

Writ Petition No. 1402 of 1999, decided on 30th March, 2000.

(a) Muslim Family Laws Ordinance (VIB of 1961)‑

‑‑‑‑8‑‑‑Constitution.of Pakistan (1973), Art..199‑‑‑Khula'‑‑‑Dissolution of marriage on the basis of Khula'‑‑‑Validity‑‑‑If spouses were thrusted upon each other they would not live within the limits ordained by God‑‑‑High Court declined to interfere with the decree passed on the basis of Khula'.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑

‑‑‑‑(. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dissolution of marriage on the basis of Khula'‑‑‑Unconsummated marriage‑‑‑Return of gold ornaments‑‑‑Family Court while dissolving the marriage on the basis of Khula' directed the wife to return 15 Tolas of gold ornaments received by her as dower‑‑‑Plea of the husband regarding giving of gold ornaments was inconsistent and he failed to prove the payment of dower‑‑‑Family Court relied upon a receipt produced by the husband which was not a proved document‑‑‑Validity‑‑‑Findings of the Family Court were not in accordance with law as well as evidence‑‑‑Where marriage was not consummated, the wife was entitled to half of the dower‑‑‑Decree of Khula' granted to the wife was modified to the extent that the wife would relinquish half of the portion of the dower to which she otherwise was entitled.

Syed Sardar Hussain for Petitioner. Ashraf Khan Gadoon for Respondents.

Date of hearing: 30th March, 2000

2000 C L C 2025

[Peshawar]

Before Shahzad Akbar Khan, J

ZOREDAST‑‑‑Petitioner

versus

YAQOOB KHAN and another‑‑‑Respondents

Civil Revision No.85 of 1998, decided on 3rd April, 2000.

(a) Specific Relief Act (I of 1877)‑‑

‑‑‑‑S. 42‑‑‑Limitation Act (IX of 1908), S.28‑‑‑Suit for declaration‑‑‑Failure to redeem mortgaged land within sixty years‑‑‑Plaintiff filed suit on the basis of prescriptive right‑‑‑Trial Court decreed the suit as the defendants failed to redeem the mortgaged property within the period of sixty years‑‑‑Appellate Court reversed the findings of the Trial Court and dismissed the suit‑‑­Validity‑‑‑Basis of the right of the plaintiff was S.28 of Limitation Act, 1908, and long before the institution of the suit by the plaintiff said S.28 was no more a part of the statute, as the same ceased to exist after 31‑8‑1991‑‑­Judgment and decree of the Appellate Court called for no interference in circumstances.

Maqbool Ahmad v. Hakumat‑e‑Pakistan 1991 SCMR 2063 and Abdur Rehman v. Muhammad Akram 1999 SCMR 100 ref.

(b) Civil Procedure Code (V of 1908)‑‑

‑‑‑‑Ss. 115 & 151‑‑‑Consolidation of suits‑‑‑No such plea was raised either during trial or during pendency of appeal before Appellate Court‑‑‑Effect ‑Such plea could not be considered in revision for the reason that the case had not only been decided by the Trial Court but also by the appellate forum‑‑‑

Question of consolidation of two cases at the stage of revision proceedings did not arise.

Gohar Zaman Khan Kundi for Petitioner. Dost Muhammad Khan for Respondents.

Date of hearing: 3rd April, 2000.

2000 C L C 2033

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

SAADULLAH KHAN‑‑‑Petitioner versus

Prof. ABDUR RAZZAQ KHAN and 4 others‑‑‑Respondents

Civil Revision No. 108 of 1997, decided on 7th April, 2000.

North‑West Frontier Province Tenancy Act (XXV of 1950)‑‑

‑‑‑‑S. 4‑A‑‑‑Occupancy rights, . transfer of‑‑‑Such transfer was alleged to be the result of fraud played in collusion with Revenue Staff‑‑‑Effect‑‑‑Once transfer of such rights were found to be the result of fraud played in collusion with the Revenue Staff, all subsequent transfers were void and as such ineffective on the right of the plaintiff‑‑‑Appellate Court had rightly decreed the suit of the plaintiff in circumstances.

Abdul Hamid v. Aziz Bakhsh 1973 SCMR 510 ref.

Sardar Allah Nawaz Khan Sadozai for Petitioner.

Khuda Bakhsh Khan Baloch for Respondents.

Date of hearing: 13th December, 1999.

2000 C L C 467

[Quetta]

Before Fazal‑ur‑Rehman, J

SIRAJUDDIN‑‑‑Petitioner

versus

NAJAMUDDIN‑‑‑Respondent

Civil Revision No.295 of 1999, decided on 5th November, 1999

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Limitation Act (IX. of 1908), S.5‑‑‑Condonation of delay‑‑­Petitioner assailed the judgment and decree of Lower Appellate Court, dated 26‑3‑1999‑‑‑Application for certified copies was made on 17‑4‑1999 and the copies were delivered on 19‑4‑1999 whereas the revision before High Court was filed on 22‑10‑1999‑‑‑Reason for delay in filing the revision was stated to be that petitioner was engaged in‑getting his pre‑arrest bail in a criminal case‑‑‑Validity‑‑‑Bail, in question was confirmed on 22‑7‑1999 and under the provisions of S.115, C.P.C. period prescribed for revision was 90 days‑‑­Revision having been filed after much delay without furnishing sufficient explanation, same was not condoned and revision was dismissed.

PLD 1993 Quetta 121 rel.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115 & O.XX, R. 5‑‑‑Revision‑‑‑Concurrent findings of both the Courts below‑‑‑All the issues. not discussed by the Trial Court in its judgment and dismissed the suit on the basis of findings on only one issue‑‑­Validity‑‑‑Held, where finding of one issue was sufficient for disposal of the cage then the Trial Court did not need to dilate on other issues and in not deciding other issues no prejudice would be caused to any party‑‑‑No illegality or irregularity having been pointed out in the judgments and decrees of both the Courts below, revision was dismissed.

Anwar‑ul‑Haque for Petitioner.

Jamal Khan Mandokhail for Respondent.

Date of hearing: 1st November, 1999.

2000 C L C 500

[Quetta]

Before Fazal-ur-Rehman, J

AASA---Petitioner

Versus

IBRAHIM ---Respondent

Civil Revision No.92 of 1999, decided on 16th November, 1999

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

----S. 115---Revision---Judgments of lower Courts at variance ---Revisional jurisdiction of High Court---Scope---Where the judgments of both the Courts below are in conflict, the view expressed by the Lower Appellate Court shall ordinarily be preferred unless the same is contrary to evidence on record or in violation of the settled principles of administration of justice.

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

----S. 115---Revision---Substituting the conclusion drawn by Lower Appellate Court---Jurisdiction of High Court---Scope---Where the Lower Appellate Court had analysed the evidence on record and the same was drawn by such Court by proper appreciation of evidence, the High Court could not substitute such conclusion---If no error of law or defect in procedure had been committed in coming to a finding of fact, the High Court could not substitute such a finding merely because a different finding could be given.

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

----S. 115---Dastoor-ul-Amal Dewani, Riasat Kalat (1952)---Court of Qazi, jurisdiction of---Judgments of Lower Courts at variance---Suit was filed for declaration but the Trial Court decreed the same directing the defendant to hand over the possession also---Lower Appellate Court reversed the findings of the Trial Court and dismissed the suit---Validity---Court of Qazi in view of Dastoor-ul-Amai Diwani, Riasat Kalat, 1952 was bound to decide the matter in accordance with "Shariat"---Judgment and decree of the Lower Appellate Court had neither any jurisdictional defect, nor any irregularity or illegality warranting interference in exercise of revisional jurisdiction was pointed out---Revision being without merit was dismissed in circumstances.

Tahir Muhammad Khan for Petitioner

Malik Sikandar Khan for Respondent.

Date of hearing: 4th November, 1999.

2000 C L C 503

[Quetta]

Before Mir Muhammad Nawaz Marri and Fazal‑ur‑Rehman, JJ

Haji GHULAM MUHAMMAD‑‑‑Petitioner

versus

THE UNION COUNCIL, TAFTAN

through Administrator, District Chagai and another‑‑‑Respondents

Constitutional Petition No.205 of 1999, decided on 18th October, 1999.

West Pakistan Municipal Committees Octroi Rules, 1964‑‑‑

‑‑‑‑8. 2(i)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constituional petition ‑‑‑Octroi/Zila Tax on goods in transit‑‑‑Petitioner imported goods from Iran‑‑‑Such goods entered Pakistan at border and were to be cleared at Customs Dry Port‑‑‑Goods came from the border up to the Dry Port under the customs squad ‑‑‑Octroi Contractor charged the Zila tax from the petitioner at the border ‑‑‑Validity‑‑‑Octroi Contractor had no lawful authority to charge Zila tax on such goods‑‑‑Action of the Council was without lawful authority and Council was directed to refund the amount recovered from the petitioner.

Raja M. Afsar for Appellant.

Nemo for Respondent:

Date of hearing: 6th October, 1999.