CLC 2001 Judgments

2001 C L C 63

[Karachi]

Before Sabihuddin Ahmed, J

NAJEEB AHMED ‑‑‑Petitioner

versus

GOVERNMENT OF SINDH through

Secretary Local Bodies Housing and

Town Planning, Karachi and another‑‑‑Respondents

Constitutional Petition No.1146 and Miscellaneous No.2443 of 1998, decided on 16th May, 2000.

Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Purchase of plots in auction‑‑­Cancellation of plots‑‑‑Failure to issue allotment order‑‑‑Petitioner was successful bidder and had paid 50% of the occupancy value in accordance with the terms of auction‑‑‑Authorities did not issue the allotment order and the petitioner failed to pay the balance price within specified time‑‑‑Plots were cancelled from the name of the petitioner without any show‑cause notice‑‑‑Validity‑‑‑Value of the plots was tremendously increased and it was not fair to tie down the Authorities to deliver possession on the basis of terms agreed several years ago because of negligence of their officers‑‑­Petitioner having agreed to pay Rs.1,00,000 over and above the occupancy value of the plots. Authorities were directed by High Court to deliver allotment order and possession of plots upon payment of Rs.1,00,000 to the petitioner.

Ch. A. Rashid for Petitioner.

Muzaffar Inam for Respondent No.2.

Ainuddin Khan, Addl. A.‑G.

2001 C L C 69

[Karachi]

Before Sarmad Jalal Osmany, J

Syed SHABIH HAIDER ZAIDI‑‑‑Plaintiff

versus

Shaikh MUHAMMAD ZAHOOR UDDIN‑‑‑Defendant

Suit No. 115 and Civil Miscellaneous Application No.507 of 2000, decided on 19th June, 2000.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 27‑‑‑Restraint of trade‑‑‑Sale of goodwill‑‑‑Contract having tendency to such restriant‑‑‑Powers of Courts to consider restraint of trade‑‑‑Scope and principles‑‑‑Courts are empowered to consider restraint of trade upon the touchstone of reasonableness‑‑‑Broad principles on reasonable restraint where good‑will is sold are that the restraint sought to be imposed must be in the interest of the parties and such restraint should be justified in the public interest.

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

‑‑‑‑Ss. 42 & 54‑‑‑Contract Act (IX of 1872) S.27‑‑‑Civil Procedure Code (V of 1908) O.XXXIX, Rr. 1 & 2‑‑‑Interim injunction, grant of‑‑‑Good‑will, selling of‑‑‑Dispute regarding restraint on business of photography‑‑‑Plaintiff purchased shop owned by the defendant alongwith its equipment, fixtures and good‑will‑‑‑Agreement executed between the parties imposed restrain upon the defendant to carry on the similar business not only in that city but in the whole Province‑‑‑Defendant denied such agreement and relied upon another agreement which was a novation of the agreement produced by the plaintiff‑‑‑Contention by the plaintiff was that the defendant could not be allowed to do the same business in whole of the Province‑‑‑Validity‑‑‑Where the defendant was a skilled photographer, it would be unfair to deny his expertise to the residents of the city as the same would not be in the public interest‑‑‑Placing of just, reasonable and fair restraint on the defendant both in terms of space and time was possible but vide restraint as contemplated by the agreement relied upon by the plaintiff could not be justified‑‑‑Defendant was restrained from doing the same business in certain areas specified by the High Court for a period of five years‑‑‑Application was allowed accordingly.

H.B.F.C. v. Shahinshah Humayun House Building Cooperative Housing Society, Ltd. 1992 SCMR 19; Khatoon Begum v. Hyesons Corporation 1980 CLC 1666; Commentaries on the Contract Act by S. Sanjive Rao and Dr. Avtar Singh; Connors Brothers Ltd. v. Bernard Connors AIR 1941 PC 75; Mulluk Chand v. Surendra Nath AIR 1957 Cal. 217; Trego v. Hunt (1896) AC 7; Mc Ellistrim v. Ballymaclligot (1919) AC 548 and Esso Petroleum Co. Ltd. v. Harpers Garage (Stourport) Limited (1968) AC 781 ref.

Nordenfelt v. Maxim Nordenfelt Co. (1894) AC 535; Jenkins v. Reid (1984) IAER 471; Routh v. James (1947) IAER 758; Unichmichem Corporation v. Abdullah Ismail 1992 MLD 2374; Submiimanian v. Kizhakaru Poduval AIR 1922 Mad. 519; District Board v. Hari Chand AIR 1934 Lah. 474; Amba Parsad v. Jugal Kishore AIR 1936 Allah. 112 and Ramamurthy v. Nandi Ramwalmma AIR 1940 Mad. 558 distinguished.

Khawaja Shamsul Islam for Plaintiff.

Khawaja Naveed Ahmed, Shaukat Hayat, Munawar Ghani and Nasir Shaikh for Defendant.

Dates of hearing: 24th, 25th 26th May and 5th, 12th and 13th June, 2000.

2001 C L C 87

[Karachi]

Before humid Ali Mirza and Ahmad Zaheer Jamali, JJ

KOHINOOR FIBRES LIMITED and 2 others‑‑‑Appellants

versus

FIRST U.D.L. MODARABA and another‑‑‑Respondents

Special High Court Appeal No.360 of 1998, decided on 16th November, 1999.

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

‑‑‑‑Ss. 15 & 21‑‑‑Payment of decretal amount in instalments as provided in 5.15 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Scope‑‑‑Banking Court, prior to exercise of powers with regard to the repayment of decretal amount by way of instalments had to obtain the detailed and reasoned opinion of the concerned banking companies in writing for such purpose‑‑‑Where no ground for instalment was placed before the High Court, no such opinion or consent of the bank was called for by the High Court‑‑‑Appeal was dismissed in limine.

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

‑‑‑‑S. 9‑‑‑Contract Act (IX of 1872) Ss. 127 & 128‑‑‑Suit for recovery of bank loan‑‑‑Liability of guarantors‑‑‑Scope‑‑‑Where the borrower had committed default in payment of loan to the bank the guarantors were liable jointly and severally for such loan under the provisions of Ss. 127 & 128 of Contract Act, 1872.

Tasawar Ali Hashmi for Appellants.

Arshad Mohsin Tayebaly for Respondent No. 1.

Rizwan Ahmad Siddiqui for Respondent No.2.

Date of hearing: 28th October, 1999.

2001 C L C 99

[Karachi]

Before Mushtaq Ahmed Memon, J

GHULAM RASUL NAEEM and 9 others‑‑‑Plaintiffs

versus

Mrs. SHERNAZ and another‑‑‑Defendants

Suit No. 100 and Civil Miscellaneous Application No.677 of 1999, heard on 29th October, 1999.

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

‑‑‑‑S. 14‑‑‑Civil Procedure Code (V of 1908), O.XV, R.1‑‑‑Disposal of suit‑‑‑Absence of any triable issue‑‑‑Withdrawal of notice subject‑matter of the suit‑‑‑Effect‑‑‑Suit property was declared dangerous by the Authorities and proceedings under S.14 of Sindh Buildings Control Ordinance, 1979, were initiated‑‑‑Suit was filed against such proceedings‑‑‑Where during pendency of the suit notice issued by the defendant was withdrawn no triable issue remained in the field and the suit was to be disposed of under O.XV, R.1, C.P.C.‑‑‑High Court directed the Authorities to initiate proceedings under S:14 of Sindh Buildings Control Ordinance, 1979, de novo, if the circumstances so required‑‑‑Suit was disposed of accordingly.

R.F. Virjee for Plaintiffs Nos. 1 to 10.

Abdul Karim Siddiqui for Plaintiff No. 11.

Kausar Amin for Defendants Nos. l(a) to (c).

Latifur Rehman Sarwari for Defendant No.2.

2001 C L C 104

[Karachi]

Before Sarmad Jalal Osmany, J

Messrs BUSINET INTERNATIONAL (PVT.) LTD. ‑‑‑Plaintiff

versus

Messrs ARAMEX INTERNAITONAL (PVT.) LTD. ‑‑‑Defendant

Suit No.666 and Civil Miscellaneous Application No.9665 of 1998, decided on 12th June, 2000.

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

‑‑‑‑S. 20‑‑‑Term "cause of action"‑‑‑Connotation‑‑‑Term "cause of action" consists of every fact if traversed, it should be necessary for the plaintiff to prove in order to support his right to judgment and if not proved gives the defendant a fight to judgment.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Binding and valid contract‑‑‑Essentials of‑‑‑Offer, its acceptance and consideration are essentials of a binding and valid contract.

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

‑‑‑‑S. 20‑‑‑Contract Act (IX of 1872) S.4‑‑‑Cause of action, accrual of‑‑‑ Execution of contract between the parties‑‑‑Disputed contract was despatched from a ,foreign country by defendant and the same was signed by plaintiff at place "K" and returned to the defendant in foreign country‑‑‑Plaintiff filed suit on the basis of the contract at place "K"‑‑‑Defendant raised objection to the jurisdiction of Courts at place "K". on the ground that the contract was never executed in Pakistan‑‑‑Validity‑‑‑Where there was a concluded contract between the parties, the despatch of the contract from foreign country would amount to an offer and return of the same by the plaintiff after execution thereof to. the defendant in foreign country and affixation of his signature thereafter would be an acceptance by the plaintiff of such offer‑‑‑Contract was made at place "K" and as such was accepted in the same city by the .plaintiff, therefore, High Court would have the jurisdiction to entertain the suit as the cause of action for filing of the suit also accrued at place ."K" to the plaintiff‑‑‑Objection qua jurisdiction raised by the defendant was dismissed accordingly.

Messrs Bubna More .& Co. v. Modern Trading Co. PLD 1960 Dacca 668; Messrs Brady & Co. v. Sayed Saigal Industries PLD 1981 SCMR 494; Rehmania Trading Co. v. Messrs Eagle Star Insurance Co. Ltd. PLD 1960 SC 202; Muhammad Farooque v. Province of Punjab PLD 1993 Lah. 56; WAPDA v. Ghulam Boyi PLD 1991 SC 780; I.T.O. Mardan v. Sanaullah Khan 1976 SC 790 and Lahore Development Authority v. Sanbean Corporation PLD 1984 Lah. 430 ref.

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

‑‑‑‑S. 20(c), Expln. II‑‑‑Contract Act (IX of 1872) S.4‑‑‑Cause of action, accrual of‑‑‑Jurisdiction of Courts‑‑‑Scope‑‑‑Court will have jurisdiction to entertain the suit concerning the rights and obligations of the parties in terms of their undertaking at the place where contract had to be performed and where some was breached.

S.M.. Qasim & Co. v. Azimuddin PLD 1962 Lah. 95 ref.

Nemo. for Plaintiff.

Z.U. Ahmed for Defendant.

Dates of hearing: 18th May,‑ 1999 and 2nd June, 2000.

2001 C L C 126

[Karachi]

Before Kamal Mansur Alam, C.J.

and Amanullah Abbasi, J

Mrs. SHAHIDA SALEEM and another‑‑‑Appellants

versus

HABIB CREDIT AND EXCHANGE

BANK LIMITED and 4 others‑‑‑Respondents

First Appeal No..96 of 1996, decided on 29th April, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXI, R.66 & O. XLIII, R.1(j)‑‑‑Banking Tribunals Ordinance (LVIII of 1984), S.11‑‑‑Execution proceedings‑‑‑Setting aside of sale through auction‑‑‑Failure to give reserve price in auction proclamation of the property under auction‑‑‑Effect‑‑‑Contention by the judgment‑debtor was that no reserved price of the property was fixed and the same was auctioned at much lower price‑‑‑Validity‑‑‑Neither requisite notice was issued to the judgment‑debtor nor the reserved price of the property was settled with the result that no one knew about the value of the property and without determining the same offer of the auction‑purchaser was accepted‑‑‑Effect‑‑­If in the first attempt for sale of the property sufficient members of bidders were not available at the site, the auction should have been postponed‑‑­Provisions of O.XXI, R.66, C.P.C. were violated and the property was sold at throw away price without making serious efforts to sell the same at prevailing market price‑‑‑Where the property was sold in complete disregard of rules and in questionable circumstances; even suo Motu action for setting aside the sale would be justified‑‑‑High Court directed for re‑auction of mortgaged property strictly under the rules‑‑‑Auction proceedings were set aside in circumstances.

AIR 1963 Mad. 156; AIR 1926 Mad. 959; AIR 1970 SC 2037; AIR 1974 SC 1331; PLD 1957 Lah. 1054 and 1996 CLC 192 ref.

Tasawar Ali Hashmi for Petitioner. Muhammad Shahid and Azhar Faridi for Respondent No. 1.

2001 C L C 148

[Karachi]

Before Saiyed Saeed Ashhad and Zahid Kurban Alavi, JJ

Messrs BROOKE BOND PAKISTAN LIMITED

through Chief Executive‑‑‑Petitioner

versus

PROVINCE OF SINDH through

Secretary, Ministry of Finance, Sindh and 3 others‑‑‑Respondents

Constitutional Petitions Nos. D‑1183 of 1999, 209, 252, 741, 742, 802, 901 to 913, 1691, 2040, 2126 to 2128 of 1995, 250, 332, 1031, 1032 of 1996, 835 of 1997, 669 and 670 of 1999, decided on 27th April, 2000;

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

‑‑‑‑Art. 163‑‑‑Imposing of taxes in respect of professions etc. ‑‑‑Provincial Assembly, powers of‑‑‑Scope‑‑‑Provincial Assembly, under the provision of Art.163 of the Constitution, has been given powers to impose taxes in respect of professions etc., subject to limitations, which may be fixed by an Act of Majlis‑e‑Shoora (Parliament) on any person engaged' in any profession, trade, calling and employment‑‑‑Power exercisable by Provincial Assembly in imposing such tax is subject to limitations contained in an Act of Parliament, that is to say a Federal Statute.

(b) Interpretation of statute‑‑‑

‑‑‑‑Newly enacted statute violating or infringing upon any provision of existing statute‑‑‑Such provision of newly enacted statute would be void to the extent which offended or violated any provision of existing statute.

(c) Interpretation of Constitution‑--

‑‑‑‑ Conflict between a statute and any provision of Constitution‑‑‑Where there is a conflict between the two, then the provision of the Constitution is to prevail as the same is the Supreme Law of Land and all other laws whether Federal or Provincial are subservient to the same.

(d) West Pakistan Finance Act (XXXIV of 1964)‑‑

‑‑‑‑S. 11 [as amended by Sindh Finance Acts, 1975 and 1994]‑‑‑Professions Tax Limitation Act (XX of 1941), S.2‑‑‑Constitution of Pakistan (1973), Arts. 163 & 199‑‑‑Constitutional petition ‑‑‑Vires of S.11 of West Pakistan Finance Act, 1964, as amended by Sindh Finance Acts (XX of 1975) and (XIII of 1994)‑‑‑--Professional tax‑‑‑Imposing of tax by Provincial Assembly on various categories of persons engaged in professions, trades, callings and employments as mentioned in Art.163 of the Constitution‑‑‑Provincial Assembly enhanced the Professional tax on such category of persons over and above Rs.50 per annum‑‑‑Validity‑‑‑Where amendments were made in S.11 of West Pakistan Finance Act, 1964, by Sindh Finance Acts, 1975 and 1994 empowering the Provincial Government to impose such tax without putting any limitation on the rate or amount of tax, amendment so made was illegal, ultra vires, without lawful authority and of no legal effect as the same were incomplete disregard and violation of Art.163 of the Constitution and S.2 of Professions Tax Limitations Act, 1941‑‑‑Amendments enhancing the rate of professional tax at more than Rs.50 per annum could not be sustained, same being null and void and of no legal effect‑‑‑Amendments made in S.11 of West Pakistan. Finance Act, 1964, by Sindh Finance Acts, 1975 and 1994 were set aside in circumstances.

Muhammad Hanif Khan for Petitioners (in C.P. No.D‑1183 of 1999).

Mazhar Ali for Petitioners (in C.P. No.209 of 1995).

Anwar Mansoor for Petitioners (in C.P. No.252 of 1995).

Tasawwur Ali Hashmi for Petitioners (in C.Ps. Nos.741, 742 and 2040 of 1995).

Abid Zuberi for Petitioners (in C.P. No.802 of 1995).

Khalid Javed Khan for Petitioners (in C.Ps. Nos. 901 to 913, 2126 to 2128, 1691 of 1995, 250, 332, 1031, 1032 of 1996 and 835 of 1997).

Muhammad Raghib Baqi for Petitioners (in C.Ps. Nos.669 and 670 of 1999).

Munirur Rehman, Addl. A.‑G., Sindh for Respondents.

Date of hearing: 2nd February, 2000.

2001 CLC221

[Karachi]

Before Sabihuddin Ahmed and, Wahid Bux Brohi, JJ

KARACHI WATER AND SEWERAGE BOARD

through Managing Director and another‑‑‑Appellants

versus

MUHAMMAD MOOSA‑‑‑Respondent

High Court Appeal No. 174 of 1997, decided on 10th July, 2000.

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

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Contributory negligence‑‑‑Proof‑‑‑Determination of amount of compensation‑‑‑Death of three years old daughter of plaintiff occurred by her falling into uncovered manhole in a street close to her parents' house‑‑‑Defendant had contended that it was plaintiff's own duty to take care of the child‑‑‑Validity‑‑‑Burden to prove contributory negligence was on the party alleging same, but defendant failed to lead any evidence to show that plaintiff or his wife were particularly negligent‑‑‑Even otherwise lack of caution and care on part of parents of deceased child would not absolve defendant of its legal and moral obligations to ensure that manhole was duly covered and that defence of contributory negligence on part of Civic Agencies could not be allowed to be set up in such‑like cases‑‑‑Court had rightly determined and awarded amount of compensation to plaintiff for deprivation of love and affection that parents/plaintiffs of the child suffered on account of tragedy.

Karachi Water and Sewerage Board v. Merajuddin and others 2000 MLD 112 ref.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Delay in filing of appeal ‑‑‑Condonation‑‑‑Matter normally to be decided on merits rather than technicalities‑‑‑Delay caused on account of some confusion was condoned.

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

‑--‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Persons entitled to amount of compensation‑‑‑Suit under S.1 of Fatal Accidents Act, 1855 ensured for benefits of all persons entitled to compensation and it was not necessary that all of them should be arrayed as plaintiffs, but person filing suit would be deemed to be the representative of all beneficiaries.

Karachi Water and Sewerage Board v. Merajuddin and others 2000 MLD 112 ref.

Abdul Karim Khan for Appellants. Nasir Maqsood for Respondents.

Date of hearing: 21st April, 2000.

2001 C L C 227

[Karachi]

Before Sabihuddin, Ahmed and Mushir Alam, JJ

KARACHI ELECTRIC SUPPLY CORPORATION

through Secretary‑‑‑Appellant

versus

SAGHIR AHMAD ANSARI and another‑‑‑Respondents

High Court Appeal No.372 of 1999 and Suit No.1063 of 1991, decided on 31st August, 2000.

Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Claim for compensation‑‑‑Respondent, the husband of the deceased had alleged that accident had taken place due to negligence of appellant (Electric Supply Company) in maintaining electric wire in proper form‑‑‑Court accepting claim of respondent held the appellant liable and awarded compensation to the respondent‑‑‑Appellant had failed to prove that accident had taken place because an unauthorized connection was taken from the electric pole by the organizers of marriage party which was attended by deceased‑‑‑Appellant was required to maintain electricity wire in proper shape and take appropriate measures to prevent accidents‑‑‑Guard wires were required to be installed in every electric pole to ensure that whenever live wire would fall its effect was neutralised, but no explanation Was available on the part of appellant for non‑existence of guard wires‑‑‑Appellant, in circumstances, was tightly held liable and compensation was rightly awarded to respondent.

Abdul Saeed Khan Ghori for Appellant.

2001 C L C 234

[Karachi]

Before Rasheed Ahmed Razvi, J

Mst. HASEENA BANO‑‑‑Plaintiff

versus

KARACHI TRANSPORT CORPORATION, through Chairman and 2 others‑‑‑Defendants

Suit No.959 of 1987, decided on 21st September, 1999.

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

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for recovery of compensation‑‑‑Determination of amount of compensation‑‑‑Plaintiff by producing reliable and unrebutted evidence on record had proved that death of deceased was caused by actionable wrong, negligence, default and wrongful act of defendant who was the driver of the bus which caused accident and who was employee of the other defendant‑‑‑Defendants were held liable to pay monetary compensation to plaintiffs who were parents of deceased who had been deprived of benefits from life of their son‑‑‑Amount of compensation was determined keeping in view age of deceased and his earning capacity accordingly.

Federation of Pakistan v. Hafiza Malika Khatoon Begum 1996 SCMR 406 ref .

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

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Contributory negligence, plea of‑‑‑Contributory negligence to be, proved by party alleging the same‑‑‑Defence of contributory negligence arises where damage is caused partly by the negligence of person who suffers and partly by the fault of wrongdoer‑‑­ Contributory negligence even if established, plaintiff's claim for damages not to be defeated but the damage to be reduced as the Court may think just and equitable.

Federation of Pakistan v. Hafiza Malika Khatoon Begum 1996 S C M R 406 ref.

Nasir Maqsood for Plaintiff.

Shafaat Hussain for Defendant No. 1.

Defendant No.2: Ex parte.

Muhammad Qasim Mirjat, A.A.‑G. for Defendant No.3.

Date of hearing: 21st September, 1999.

2001 C L C 251

[Karachi]

Before Sabihuddin Ahmed, J

SHAUKAT‑Appellant

versus

Mst. SHAMAS RAFIQ‑‑‑Respondent

First Rent Appeal No.699 and Civil Miscellaneous Application No. 1410 of 1998, decided on 24th April, 2000.

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

‑‑‑‑S. 21‑‑‑Appeal‑‑‑Raising of new plea‑‑‑Opportunity to lead additional evidence ‑‑‑Tenant, in the appeal against ejectment order, denied existence of relationship of landlord and tenant‑‑‑Such being the new stand in appeal, contention by the tenant was that opportunity to lead evidence before Rent Controller might be granted regarding such new plea‑‑‑Validity‑‑‑Where additional question of fact and law was raised in appellate proceedings, Appellate Court, in a proper case, might direct that evidence be led as the same would not prejudice any of the parties‑‑‑Plea raised by the tenant was contradicted by his stand before the Rent Controller‑‑‑Party could not be allowed to blow hot and cold and kept on experimenting with different factual pleas at different stages of proceedings as to allow parties to do so would destroy sanctity of judicial system.

Mobarak Ahmed for Appellant.

Muhammad Latif Shaikh for Respondents.

2001 C L C 321

[Karachi]

Before Sabihuddin Ahmed and Mushir Alam, JJ

Messrs ERUM HEIGHTS RESIDENTS

WELFARE ASSOCIATION‑‑‑Petitioner

versus

KARACHI ELECTRIC SUPPLY CORPORATION LTD, through Managing Director and 3 others‑‑‑Respondents

Constitutional Petition No.D‑1427 of 2000, decided on 28th September, 2000. r

Electricity Act (IX of 1910)‑‑‑---

‑‑‑‑S. 36‑‑‑Constitution of Pakistan (1973), Art.9‑‑‑Constitutional petition‑­Controversy with regard to legality of electricity bill‑‑‑Forum to resolve‑‑­Controversy with regard to legality or illegality of electricity bill ought to be resolved through statutory forum of Electric Inspector available under Electricity Act, 1910, and it was not proper for High Court to enter into such controversy‑‑‑High Court, however, granted interim relief of immediate restoration of power supply because denial of electric power to citizens might amount to infringement of right of life guaranteed by Art.9 of Constitution of Pakistan (1973).

Nazar Akber for Petitioners.

Ikram Ahmed Siddiqui for Respondents Nos. 1, 2 and 3.

2001 C L C 326

[Karachi]

Before Sabihuddin Ahmed and Anwar Zaheer Jamali, JJ

M. ZUNNOON KHAN, ADVOCATE‑‑‑Petitioner

versus

NISAR AHMAD SIDDIQUI, MEMBER BOARD OF

REVENUE, SINDH and 2 others‑‑‑Respondents

Constitutional Petition No.D‑714 of 1999; decided on 2nd March, 2000, (a) Interpretation of statutes‑‑‑

‑‑‑‑ Administrative functionaries while interpreting the laws cannot add to the words of a statute nor assume the jurisdiction to interpret laws‑‑‑Such jurisdiction only vests in Courts of law.

(b) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑S. 33‑‑‑Sindh Permanent Residence Certificate Rules, 1971, R.3‑‑­Registration of power of attorney‑‑‑Permanent Residence Certificate‑‑­Purpose‑‑‑Permanent Residence Certificate is required to be obtained by a person for securing employment under the Government or admission into higher/professional institute of learning‑‑-Certificate obtained under Sindh Permanent Residence Certificate Rules cannot be treated as necessary for the purpose of Registration Act, 1908.

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

‑‑‑‑S. 17‑‑‑Domicile‑‑‑Person can only be a domicile of country and not that of a particular district or areas therein under the provision of Pakistan Citizenship Act, 1951.

Yar. Muhammad v. District Magistrate, Loralai 1981 SCMR 154 'ref.

(d) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑Ss. 33 & 35‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Power of attorney, registration of‑‑‑Requirements‑‑‑Board of Revenue issued a circular whereby Registrars and Sub‑Registrars were directed to get certain documents from executant in proof of his permanent residence of a particular place‑‑‑Validity‑‑‑Held, it was a solemn obligation of the Registering Officer to satisfy himself that the person appearing before him was genuine‑‑‑Stipulation that the Registration Officer should obtain a copy of one of the six types of documents and place on record, might enable the Officer to shed his responsibilities of identifying the maker of the document and enable the Officer to act mechanically by registering a power of attorney after obtaining copies of one of the said six documents whose authenticity might be open to serious doubts‑‑‑Instead of issuing omnibus directives, strict measures should be taken against those who were found guilty of malpractices ‑‑‑Circular issued by the Board of Revenue being without lawful authority was of no legal effect‑‑‑High Court observed that the Authorities should take any appropriate measures for prevention of fraud within the scope of authority conferred by law or to seek amendment of the relevant law.

Asad Zaheeruddin and others `v. Sub‑Registrar, T‑Division‑I and others 1987 CLC 786 ref.

Petitioner in person.

Munir‑ur‑Rehman, Addl. A.‑G. for Respondents.

Date of hearing: 16th February, 2000.

2001 C L C 333

[Karachi]

Before Muhammad Musa K.Leghari, J

ABDUL WAHEED KHAN and another---Application

versus

ALEEMUDDIN KHAN‑‑‑Respondent

Civil Appeal No.3 of 1986 and Civil Miscellaneous Applications Nos.207 of 1997, 305 and 306 of 1999, decided on 24th October, 2000.

(a) Counsel and client‑‑‑

‑‑‑‑ Parties and their counsel must act vigilantly in prosecuting their causes and if there is contumacy on their part, the other party should not suffer for that.

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

‑‑‑‑O. XLI, R.19‑‑‑Expression "sufficient cause"‑‑‑Scope‑‑‑"Sufficient cause" is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases‑‑‑Such question depends on facts and circumstances of each case and the same lies within discretion of the Court‑‑­For "sufficient cause" very strict view should not be taken and the discretion of the Court is to be exercised on judicial principles.

Muhammad Halim and others v. H.H. Muhammad Naim and others PLD 1969 SC 270, . Mariam Bai and another v. Mst. Mehrun Nisa Begum 1985 SCMR 2064 and Mst. Begum v. Mst. Begum Kaniz Fatima Hayat 1989 SCMR 883 ref.

(c) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Expression "sufficient cause"‑‑‑Scope‑‑‑Expression should receive a liberal construction so as to advance cause of substantial justice and to include grounds of justice; equity and good conscience.

Muhammad Nazir v. The Secretary, Cooperative Department 1989 MLD 1156 and 1994 MLD 1965 ref.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Expression "sufficient cause" in a provision of law has to receive a liberal construction so as to advance cause of substantial justice and to include grounds of justice, equity and good conscience.

Muhammad Nazir v. The Secretary, Cooperative Department 1989 MLD 1156 and 1994 MLD 1965 ref.

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

‑‑‑‑O. XLI, R.19‑‑‑Appeal, readmission of‑‑‑Appeal was dismissed for non­prosecution and ground for non‑appearance of the appellant was failure to receive notice of hearing of appeal‑‑‑Validity‑‑‑Law favours adjudication on merits and cases should be decided on merits by affording ample and adequate opportunity of hearing to the parties so that substantial justice can be done and no party should be deprived of his right‑‑‑Appeal was ordered to be re‑admitted accordingly.

1974 SCMR 162; 1985 MLD 1616; PLD 1991 SC 1082; PLD 1992 Lah. 156; 1984 CLC 3332; 1996 SCMR 1508; 1992 MLD 967; 1986 CLC 1441 and 1999 MLD 553 ref.

Kamaluddin for Appellants.

Abdus Salam Qureshi for Respondents.

Ahmed Ali Shaikh for the Surety.

2001 C L C 347

[Karachi]

Before Sabihuddin Ahmed anal S.A. Rabbani, JJ

ABDUL FARID‑‑‑Petitioner

versus

N.E.D. UNIVERSITY OF ENGINEERING

AND TECHNOLOGY, KARACHI and another‑‑‑Respondents

Constitutional Petition No.338‑D of 2000, decided on 12th June, 2000.

(a) Educational institution‑‑‑

‑‑‑‑Admission‑‑‑Change of Rules‑‑‑Scope‑‑‑Competent Authority can always change rules of admission and the candidate cannot claim to have acquired vested right of admission according to the old admission rules or policy‑‑­Rules and policies laying down prerequisite for admission to specialised course and for determining the equivalence for one degree with another, ought to be left to the best judgment of the experts and Courts should be slow to interfere with their decisions‑‑‑Decision taken by such experts is altogether sacrosanct and the experts can act within the framework of the Constitution and the law.

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

‑‑‑‑Art. 25‑‑‑Reasonable classification‑‑‑Concept‑‑‑Scope‑‑‑All persons cannot be alike in all circumstances and the concept of reasonable classification is implicit in Art.25 of the Constitution‑‑‑Where the classification is rational and based on intelligible differentia bearing a direct nexus with the object of law, such classification passes the test of constitutionality.

(c) N.E.D. University of Engineering and Technology Act (III of 1977)‑‑‑

‑‑‑‑S. 16(2)(a)‑‑‑Regulating admission in the University‑‑‑Power of‑‑­Scope‑‑‑Provisions of N.E.D. University of Engineering and Technology Act, 1977, empower the Authorities in the University to regulate admission‑‑‑Such power is in the nature of public power and the same must not only be exercised according to law and the Constitution but also in the public interest, reasonably, fairly and justly.

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

‑‑‑‑Arts. 25 & 37(c)‑‑‑Principles of policy‑‑‑Educational institution‑‑­Admission into institution of higher learning‑‑‑Classifications for such admission‑‑‑Scope‑‑‑Provision of Art.25 of the Constitution has to be read with Art.37(c) of the Constitution and the same implies that any classification made for the purpose of admission into institutions of higher learning on basis other than merit is invidious and violative of Art.25 of the Constitution.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Employees of Pakistan Law Commission v. Ministry of Works 1994 SCMR 1548 ref.

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

‑‑‑‑Art. 29(1)‑‑‑Principles of Policy‑‑‑Responsibility of State functionaries‑‑­,Scope ‑‑‑Every organ of the State under Art.29(1) of the Constitution has been conferred responsibility to act in accordance with principles of Policy enshrined in Part 11, Chap.2 of the Constitution‑‑‑Assumption, thus, must be made that any law conferring authority upon a State functionary, subject to a specific provision to the contrary, implies that such authority has to be exercised for the purpose of implementing such principles.

(f) N.E.D. University of ‑Engineering and Technology Act (III of 1977)‑‑‑

‑‑‑‑S. 16(2)(a)‑‑‑Constitution of Pakistan (1973), Arts.25, 37(c) & 199‑‑­Constitutional petition‑‑‑Educational institution‑‑‑Admission in Engineering University‑‑‑Classification for such admission ‑‑‑Vires of classification‑‑­University denied admission to the candidate for the reason that he acquired the required qualification from some other University of the same Province‑‑‑Validity‑‑‑University failed to point out any provision of N.E.D. University of Engineering and Technology Act, 1977, which could enable the University Authorities to accord admissions or lay down a criterion based on something other than merit for the purpose of admission‑‑‑Power available to the Authorities was only exercisable according to such principles and laying down the policy violating the same was ultra vires the said powers‑‑‑Classification by the University, therefore, was ultra vires the Constitution and law and the same was set aside.

Humayun Nizami v. Government of Sindh PLD 1988 Kar. 343; Naim Mirza v. Government of Sindh 1987 CLC 1487; Muhammad Siddiq v. Government of Punjab 1987 SCMR 302; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Employees of Pakistan Law Commission v. Ministry of Works 1994 SCMR 1548 ref.

Abdul Qadir Shaikh v. Registrar, N.E.D. University of Engineering and Technology 1992 CLC 2222 fol.

Shamsuddin Khalid for Petitioner.

Rehanul Hassan Farooqui for Respondent No. 1.

Date of hearing: 12th June, 2000.

2001 C L C 360

[Karachi]

Before Mushir Alam, J

SHAUKAT & RAZA (PVT.). LTD.‑‑‑Decree‑Holder

versus

K.D.A. (KARACHI DEVELOPMENT AUTHORITY)‑‑‑Judgment‑Debtor

Execution Application No. 104 in Suit No. 1145 of 1999 and Civil Miscellaneous Applications Nos.996 and 459 of 2000, decided on 11th September,2000.

Civil Procedure Code (V of 1908)---

‑‑‑‑O. XXI, Rr.46 & 56‑‑‑Attachment of property owned by judgment debtor‑‑‑Failure to give details of the property of judgment‑debtor at the time of filing of execution petition‑‑‑Effect‑‑‑Decree‑holder was entitled to seek attachment of any property of the judgment‑debtor till the entire amount of the decree was satisfied‑‑‑Mere failure/non‑listing of the property at the time of making of execution application would not deprive the decree‑holder to enforce or claim the execution till the same was satisfied‑‑‑Property of the judgment‑debtor was allowed to be attached accordingly.

Samiuddin Sami for the Decree‑Holder.

Afzal Nabi for the Judgment‑Debtor.

2001 C L C 365

[Karachi]

Before Sabihuddin Ahmed, J

ABDUL HAKEEM and another‑‑‑Plaintiffs

versus

ABDUL RAHIM ARIF‑‑‑Defendant

Suit No. 1259 and Civil Miscellaneous Applications Nos.7481 and 7482 of 1999 and 2715 of 2000, decided on 20th April, 2000.

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

‑‑‑‑O. XXXIX, Rr.l & 2‑‑‑Intrim injunction, grant of‑‑‑Consent of the parties‑‑‑Where both the parties agreed not to create third party interest and maintain status quo, temporary injunction was allowed in said terms.

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

‑‑‑‑O. XL, R. 1‑‑‑Appointment of Receiver‑‑‑Scope‑‑‑Defendant was 50 owner of the suit property but was receiving rent of one shop and was in possession of the other‑‑‑Effect‑‑‑Dispossessing the defendant being harshest step, High Court, directed the defendant to deposit the rent of the shop received by him in the Court regularly‑‑‑Application for appointment of Receiver was disposed of accordingly.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 21, 22, 23 &.34‑‑‑Arbitration‑‑‑Referring the matter to arbitrator by Court‑‑‑Scope‑‑‑Where one of the parties was not ready and willing for the same, the matter could not be referred to arbitrator especially when the defendant failed to invoke the provisions of S.34 of the Arbitration Act, 1940 for the stay of said proceedings and to seek directions for reference to arbitration‑‑‑Application was dismissed in circumstances.

Shamdas B. Chhangani for Plaintiffs.

Muhammad Hanif Kashmiri for Defendant.

2001 C L C 370

[Karachi]

Before Saiyed Saeed Ashhad, J

ABDUL GHAFOOR and 2 others‑‑‑Applicants

versus

ALLAH BUKSH and 5 others‑‑‑Respondents

Revision Application No.87 of 1999, decided on 21st February, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 8 & 42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Recovery of possession ‑‑‑Encroacher or trespasser, right of‑‑‑Land included in Katchi Abadi‑‑‑Both the Courts below concurrently decided the suit in favour of the plaintiff‑‑‑Validity‑‑‑Unauthorised occupation or any encroachment over a property did not provide a right to the encroacher or trespasser either for the transfer of the suit property or for claiming to be the owner/title‑holder of such property‑‑‑Where the judgments of both the Courts below were arrived at by ignoring the provisions of law and by .illegal exercise of jurisdiction vested in them, such judgments could not be sustained‑‑‑Suit filed by the plaintiff was dismissed in circumstances.

Abdul Ghafoor v. Settlement Commissioner and others 1968 SCMR 1286; Anjuman Araian, Bhera v. Abdul Rashid and others PLD 1982 SC 308 and Sabir Hussain v. Gulzar Begum 1989 MLD 3084 ref.

Muhammad Hanif Kashmiri for Applicants.

Muhammad Ashraf Kazi for Respondent No.3.

Date of hearing: 7th December, 1999.

2001 C L C 419

[Karachi]

Before Zia Perwez, J

THE COLLECTOR OF CUSTOMS (APPRAISEMENT), COLLECTORATE OF CUSTOMS, GOVERNMENT

OF PAKISTAN, CUSTOMS HOUSE, KARACHI and others‑‑‑Applicants

versus

Messrs IMRAN ENTERPRISES through

Proprietor and others‑‑‑Respondents

Revision Applications Nos.44 to 60 of ‑1999, decided on 6th November, 2000.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 217‑‑‑Civil Procedure Code (V of 1908), O. XXX, Rr.l & I0‑‑‑Suit by and against proprietary concern‑‑‑Proprietary concern could be sued in its name, but such a concern could not sue in its own name.

Ismail Haji Sulaiman v. Messrs Line and another PLD 1961 Dacca 693; Habib Bank Limited v. Iqbal I.I. Chundrigar 1983 CLC 1964 and Ahan Saz Contractors v. Pak Chromical Limited 1999 MLD 1781 ref.

Shakeel Ahmed for Applicants. Nemo for Respondents. ,

2001 C L C 438

[Karachi]

Before Syed Ali Aslam Jafri, J

Mrs. SULTANA BEGUM‑‑‑Appellant

versus

MANSOOR JAVEED and another‑‑‑Respondents

First Rent Appeal No.494 of 1998, decided on 15th November, 2000.

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

‑‑‑‑S. 5‑‑‑Attestation of rent agreement‑‑‑Rent agreement executed before coming into force of Sindh Rented Premises Ordinance, 1979 would not require any attestation by the Rent Controller or the First Class Magistrate.

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

‑‑‑‑Ss. 19 & 20‑‑‑Civil Procedure Code (V of 1908), S.1‑‑‑Applicability of Civil Procedure Code‑‑‑Code of Civil Procedure was not applicable to cases under Sindh Rented Premises Ordinance 1979 on all fours.

Habib Bux v. Zahoor‑ul‑Hassan 1986 CLC 1119 ref.

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

‑‑‑‑S. 15(2)‑‑‑Ejectment application‑‑‑Maintainability‑‑‑Procedure‑‑‑If verification of ejectment application was not duly attested, such omission was a mere irregularity and could be cured at any stage by directing the party to get the formality observed‑‑‑Application could not be held as not maintainable for such an omission.

Alif Din v. Khadim HAssain 1980 SCMR 767; Muhammad Akbar v. Shaikh Nasiruddin 1991 MLD 1338; Shafique Ahmad v. Abdul Rehman 1987 MLD 2243; Allauddin v. Ghazanfar Ali and another 1988 CLC 1343; Messrs Aziz Flour Mills and 2 others v. The Industrial Development Bank of Pakistan 1990 CLC 1473 and Muhammad Munshi and another v. Mst. Rakiya Bi 1990 CLC 301 ref.

Miss Sofia Saeed for Appellant. Hafiz A. Baqi for Respondents.

Date of hearing: 13th October, 2000.

2001 C L C 460

[Karachi]

Before Muhammad Roshan Essani

and Muhammad Ashraf Leghari, JJ

UNITED BANK LIMITED‑‑‑Appellant

versus

ABDUL HAMID and others‑‑‑Respondents

First Civil Appeal No.3 of 2000, decided on 7th November, 2000.

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

‑‑‑‑S. 21(5)‑‑‑Appeal against interlocutory order of Special Court‑‑­Maintainability‑‑‑Order passed by Special Court was neither suffering from any illegality or impropriety nor was passed without jurisdiction‑‑‑Appeal against said order being not maintainable under S.21(5) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 was dismissed.

Muhammad Haroon Memon for Appellant. Madad Ali Shah Masoomi for Respondent No. 1.

2001 C L C 479

[Karachi]

Before S. Ahmed Sarwana, J

MASOOD ASIF and others‑‑‑Plaintiffs

versus

UNITED BANK LIMITED‑‑-Defendant

Suit No. 1700 of 1999, decided on 13th October, 2000.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 28‑‑‑Civil Procedure Code (V of 1908). S.13‑‑‑Agreement in restraint of legal proceedings‑‑‑Exclusive jurisdiction clause in the agreement‑‑­Effect‑‑‑If there is no express choice of the proper law, it is open to the Court to determine whether there is any implied or inferred choice of the proper law in the contract‑‑‑Question of choice does not arise, where the parties have agreed to submit their dispute to the Court or arbitration in a particular country‑‑‑Intention of the parties is to be implemented.

Karachi Gas Company Limited v. Hasham Issaq PLD 1981 Kar. 197 ref.

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

‑‑‑‑S. 10‑‑‑Contract Act (IX of 1872), S.28‑‑‑Leave to defend the suit‑‑­Recovery of damages from Bank‑‑‑Jurisdictional clause in the agreement‑‑­Agreement between the parties was executed in England and both the parties agreed to the adjudication of their disputes by the Courts in England‑‑­Plaintiffs filed the instant suit against the Bank for the reason that the Head Office of the Bank was in Pakistan‑‑‑Bank had already invoked the jurisdiction of English Courts according to the agreement‑‑‑Effect‑‑‑Where the parties had agreed to a forum for adjudication of their dispute they were directed by the High Court to resort to that forum and proceedings in the suit were stayed‑‑‑Bank having raised serious and bona fide dispute, leave to defend the suit was granted to it.

Muhammad Akram Shaikh for Plaintiffs. Sajid Zahid for Defendant.

Dates of hearing: 17th, 28th, February; 15th, 16th, March and 5th April, 2000.

2001 C L C 492

[Karachi]

Before S. Ahmed Sarwana, J

NATIONAL DEVELOPMENT FINANCE CORPORATION‑‑‑Plaintiff

versus

Messrs BHITAI RUBBER INDUSTRIES LTD.

and 7 others‑‑‑Defendants

Suit No.1294 and Civil Miscellaneous Applications Nos.9592 to 9594 of 1999, decided on 1st February, 2000.

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

‑‑‑‑S. 9‑‑‑Recovery of Bank loan‑‑‑Liquidated damages and mark‑up for cushion period‑‑‑Borrower accepted the statement of account except a specific sum of amount which amount plaintiff‑Bank agreed to reduce accordingly‑‑‑High Court refused to allow liquidated damages and mark‑up .for cushion period‑‑‑Suit was decreed accordingly.

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

‑‑‑‑S. .10‑‑‑Leave to defend suit‑‑‑Forged signatures on the guarantees‑‑­Defendant denied his signatures on the guarantees as the same were alleged to be fabricated‑‑‑Effect‑‑‑Where on comparison with the admitted signatures of the defendant, the signatures on the guarantees prima facie appeared to be different, leave to defend the suit was granted.

A.H. Mirza for Plaintiff. Noorullah Manji for Defendants Nos. 1, 2, 3, 6, 7 and 8. Amer Raza Naqvi for Defendant No.3.

2001 C L C 507

[Karachi]

Before Muhammad Ashraf Leghari, J

ALI JAN‑‑‑Petitioner

versus.

Mst. AKBAR and others‑‑‑Respondents

Constitutional Petition No.S‑1074 of 1999 and Civil Miscellaneous Application No. 1078 of 2000, decided on 31st August, 2000.

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 5 & 14(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Right of appeal‑‑‑Dissolution of marriage on the basis of Khula'‑‑­No right of appeal in such case having been provided under the provisions of S.14(2) of West Pakistan Family Courts Act, 1964, Constitutional jurisdiction could not take place of appellate jurisdiction.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Findings of fact recorded by Court of competent jurisdiction'‑‑,Contractual obligation-‑‑Interference of High Court in exercise of Constitutional jurisdiction‑‑‑Scope‑‑‑Relief touching the contractual elements cannot be granted in Constitutional jurisdiction‑‑­Finding of fact recorded by competent Courts is not open to interference by High Court in exercise of such jurisdiction‑‑‑Court which has jurisdiction in the matter can decide the matter rightly or wrongly and such order cannot be interfered with in the Constitutional jurisdiction unless the same is mala fide, arbitrary, perverse or the Court has acted in excess of its jurisdiction.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Discretion‑‑‑Scope‑‑‑Exercise of Constitutional jurisdiction is discretionary and the same is to be used in good faith having looked at all the attending circumstances and relevant factors of the case‑‑‑Such discretion is to be used in just, fair and reasonable ways.

(d) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dissolution of marriage on the basis of Khula'‑‑‑Relation of young spouses was severely strained and they could not live together as husband and wife‑‑‑Marriage between the parties was rightly dissolved by Family Court on the basis of Khula'‑‑‑Constitutional petition being not maintainable was dismissed in limine.

Mughul Mumtaz Ali Khan for Petitioner. Ghulam Hussain for Respondent No. 1

2001 C L C 514

[Karachi]

Before Muhammad Roshan Essani

and Muhammad Ashraf Leghari, JJ

ABDUL QAYOOM‑‑‑Petitioner

versus

Messrs SHELL PAKISTAN (LTD.) and others‑‑‑Respondents

Constitutional Petition No.D‑422 of 2000, decided on 27th September, 2000.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Locus standi‑‑‑Where the order does not create any vested right in favour of any person, such person has no locus standi to challenge such order in Constitutional petition.

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

‑‑‑‑Art. 199(1)(a)‑‑‑"Aggrieved party" or "person aggrieved"‑‑­Connotation‑‑‑Terms do not really mean that a man who is disappointed of a benefit which he might have received if some other orders have been made‑‑­Aggrieved person must be a man who had suffered a legal grievance, a man against whom a decision had been pronounced which had wrongfully deprived that person of something or wrongfully refused him something which he had a right to demand or wrongfully affected his title in something.

Muhammad Hussain Shah v. Board of Revenue and others 1984 CLC 1146 ref.

(e) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Disputed question of fact‑‑­Installation of petrol pump in residential area‑‑‑None of the residents of the vicinity had come forward with the grievance before the Authorities or any Court that the installation of the pump would be hazardous to their health and safety‑‑‑Petitioner himself was running a petrol pump at some distance from the disputed site‑‑‑Effect‑‑‑Constitutional petition having been filed on account of professional jealousy or with some ulterior motives, controversies or disputed facts could not be resolved in Constitutional jurisdiction.

David Lawrence for Petitioner. Manzar Alam for Respondents Nos.1 to 3.

Gul Bahar Korai and Saifuddin Shah for Respondent No.5.

S. Zawar Hussain Jafferi, Addl. A.‑G. for Respondents Nos.6 and 7.

Sardar Abdul Sattar Chohan for Respondent No.8.

2001 C L C 522

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

GHULAM SARWAR‑‑‑Appellant

versus

NATIONAL BANK OF PAKISTAN‑‑‑Respondent

First Civil Appeal No. 14 and Civil Miscellaneous Application No.360 of 2000, decided on 26th September, 2000.

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

‑‑‑‑S. 10‑‑‑Leave to defend the suit‑‑‑Pre‑condition for grant or refusal of leave‑‑‑Scope‑‑‑Where there is a "serious" and "bona fide" dispute with regard to the amount involved in the matter only then the leave can be granted‑‑‑Where the amount involved is not disputed the Court is competent to refuse leave to defend the suit in circumstances.

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

‑‑-‑S. 10‑‑‑Recovery of Bank loan‑‑‑Adjustment of loan from G.P. Fund of the borrower who was employee of the Bank‑‑‑Amount of loan was not disputed and the Banking Court decreed the suit in favour of the Bank‑‑­Borrower who was employee of the Bank was removed from service and his service appeal` was pending‑‑‑Contention by the borrower was that the amount of loan could be adjusted from his G.P. Fund after the success of service appeal‑‑‑Validity‑‑‑Dispute was not bona fide as the borrower did not pay a single installment towards the loan advanced to him‑‑‑Where advance of principal amount was not denied, the dispute between the parties being not serious, leave to defend the suit could not be granted‑‑‑Plea raised by the borrower qua adjustment of his back benefits in the loan was not tenable.

Haji Abdul Latif Memon for Appellant.

Abdul Razzak Bhutto for Respondent.

2001 C L C 548

[Karachi]

Before Muhammad Roshan Essani

and Muhammad Ashraf Leghari, JJ

REHMAT ALI ‑‑‑Petitioner

versus

MUSLIM COMMERCIAL BANK LTD. and others‑‑‑Respondents

Constitutional Petition No. 1036‑D and Civil Miscellaneous Application No.2097 of 2000, decided on 15th November, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Concurrent findings of Courts below could only be disturbed in Constitutional jurisdiction of High Court when patent illegality was in the order of Court or Court had acted without jurisdiction.

S. Manzar Alain for Petitioner.

2001 C L C 653

[Karachi]

Before Sabihuddin Ahmed, J

ASIF NADEEM‑‑‑Plaintiff

versus

Messrs BEXSHIM CORPORATION and others‑‑‑Defendants

Civil Miscellaneous Application No.297 in Suit No. 186 of 1997, decided on 14th December, 1998.

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

‑‑‑‑O. XXXVII, Rr. 2 & 3‑‑‑Suit for recovery of amount on basis of cheques‑‑‑Application for leave to defend suit‑‑‑Court, while granting leave to defend suit, was required to examine all the questions, which could arise by way of defence as deducible on the plea raised by the defendant.

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

‑‑‑‑O. XXXVII, Rr. 2 & 3‑‑‑Suit for recovery of amount on the basis of cheques‑‑‑Application for leave to defend suit‑‑‑Limitation‑‑‑Limitation period for filing application to defend suit would start running from the day when the copy of the plaint was supplied to the defendant/applicant‑‑‑Application filed within ten days of receipt of copy of plaint, was within time.

Ali Akbar v. Gulzar Ali Shah PLD 1984 Kar. 252 and Aziz Ahmed v. Ashraf 1991 CLC 1261 ref.

(c) Negotiable Instruments Act (XXVI of 1881)‑‑‑

‑‑‑‑S. 118‑‑‑Presumption as to negotiable instrument‑‑‑Presumption that a negotiable instrument was made, drawn, accepted or endorsed for consideration, was a rebuttable presumption and the onus would be on the person denying consideration to allege and prove the same.

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

‑‑‑‑O. XXXVII, Rr. 2 & 3‑‑‑Suit for recovery of amount‑‑‑Leave to defend suit‑‑‑Principles for grant of leave to defend suit explained and detailed.

The following are the principles for grant of leave to defend the suit:‑‑

(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.

(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.

(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend. That is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.

(d) If the defendant. has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.

(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then, although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition and thereby show mercy to the defendant by enabling him to try to prove a defence.

Messrs Mechalee Engineers and Manufacturers v. Messrs Basis Equipment Corporation AIR 1977 SC 577 and Sint. Kiranmoyee Dassi v... Dr. J. Chatterjee (1945) 49 CWN 246 ref.

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

‑‑‑‑O. XXXVII, Rr. 2 & 3‑‑‑Suit for recovery of amount‑‑‑Unconditional leave to defend suit‑‑‑Defendant had raised plausible defence by asserting question of fact and law to be tried or investigated into, more particularly whether any business transaction existed between the plaintiff and the defendant and whether cheques were without consideration‑‑‑Defendant having raised the triable issues indicating that he had fair and reasonable defence, though not a positively good defence, was entitled to unconditional leave to defend suit.

Mustafa Lakhani for Plaintiff. S.M. Akhtar Rizvi for Defendants Nos. l and 2.

2001 C L C 671

[Karachi]

Before Sabihuddin Ahmed and Zahid Kurban Alavi, JJ

Mir AMJAD ALI ‑‑‑Appellant

versus

THE OFFICIAL ASSIGNEE, HIGH COURT OF SINDH, KARACHI and others‑‑‑Respondents

High Court Appeal No.87 of 2000, decided on 26th May, 2000.

(a) Auction Notice----

‑‑‑Expression where is" in an auction notice respecting motor vehicle‑‑‑Import‑‑‑Expression was only referable to the physical attributes of the vehicles to terms of auction notice and did not relate to motor vehicle tax liability against the auctioned vehicles.

(b) Words and phrases‑‑

...... As is where is "‑‑‑Connotation.

Samiuddin Sami for Appellant.

Ainuddin Khan and Sheikh Munir‑ur‑Rehman, A.A.‑Gs. for Respondents.

2001 C L C 676

[Karachi]

Before Rana Bhagwan Das

and Sabihuddin Ahmed, JJ

JAVED MASOOD KHAN‑‑‑Appellant

versus

ZAHID HUSSAIN and others‑‑‑Respondents

High Court Appeal No.25 of 1999, decided on 17th March, 1999.

Partnership Act (IX of 1932)‑‑‑

‑‑‑‑S. 69‑‑‑Civil Procedure Code (V of 1908),,O.VII, R.11 & O.XXXVII, Rr.2 & 3‑‑‑Suit for recovery of amount‑‑‑Rejection of plaint‑‑‑Plaint was sought to be rejected on the ground that in absence of registration of the partnership firm, suit could not be filed against the firm and was liable to be summary rejection without further proceedings‑‑‑Validity‑‑‑Plaintiffs had sued the defendant for recovery of amount in their individual capacity and not for and on behalf of the firm‑‑‑Order rejecting the application for rejection of plaint, not suffering from any legal infirmity or impropriety, could not be interfered with by High Court.

Nasir Ahmad Khan for Appellant. Hashim Badhiar for Respondents.

2001 C L C 679

[Karachi]

Before Saiyed Saeed Ashhad, J

ALI BAKHSH‑‑‑Appellant

versus

EJAZ KARIMI‑‑‑Respondent

First Rent Appeal No.293 of 1997, decided on 19th May, 1999.

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

‑‑‑‑Ss. 15(2)(ii), (vii) & 21‑‑‑Default in payment of rent and bona fide personal need of landlord‑‑‑Landlord had alleged default w.e.f. December, 1992, but Rent Controller only took into consideration the default w.e.f. July, 1994 without giving any reason for not taking into consideration the earlier period‑‑‑Rent Controller had also failed to give any plausible or reasonable ground for holding that personal requirement or need of landlord was not established‑‑‑Landlord was not required to show or disclose the names of tenants who were in occupation of other shops which had been rented out by landlord and no provision of law required the landlord to give reasons for his choice or preference for a particular shop for his own use when he m owned other shops as well‑‑Order passed by Rent Controller being absolutely in disregard of the evidence and material available on ‑record, based on misreading and misconstruing the evidence and contrary to the principles relating to the question of default and personal requirement, was set aside remanding the matter to be decided afresh accordingly.

Shamsuddin Khalid Ahmed for Appellant.

Shaikh Muhammad Mushtaque for Respondent.

Date of hearing: 19th May, 1999.

2001 C L C 690

[Karachi]

Before Amanullah Abbasi, J.

Syed ARSHAD ALI HASHMI‑‑‑Appellant

versus

KHURSHEED BEGUM‑‑‑Respondent

First Rent Appeal No.322 of 1998, decided on 12th January, 2000.

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

‑‑‑‑S. 15(2)(ii)‑‑‑Default in payment of rent‑‑‑Burden of proof ‑‑‑Non­ payment of rent was a negative fact and once the landlord stated on oath to have not received the rent for specific period, the burden to prove would shift upon the tenant who had to, prove affirmatively to have paid or tendered rent.

PLD 1982 SC 465; 1997 CLC 216 and 1995 SCMR 323 ref.

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

‑‑‑‑Ss. 15(2)(ii) & 21‑‑‑Default in payment of rent‑‑‑Landlord had insisted that disputed rent of premises had not been paid to him‑‑‑Tenant failed to produce any oral or documentary evidence to show that rent of the said period was paid to landlord but despite that Rent Controller had found that tenant had not committed any default‑‑‑Finding of Rent Controller not based on the material and evidence available on record and suffering from misreading of evidence and misconception of law, was reversed to appeal r holding that tenant had committed default in payment of rent.

K.B. Bhutto for Appellant. Hidayatullah Ghulam Ali for Respondent.

Date of hearing: 10th December, 1998.

2001 C L C 701

[Karachi]

before Shabbir Ahmad, J

BORE MUHAMMAD ‑‑‑Plaintiff

versus

Mst. AZIZA BEGUM and others‑‑‑Defendants

Suit No. 1549 of 1998, decided on 19th November, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. 1, R.3‑‑‑Suing officials by their designation‑‑‑Where, however, plaintiff was offended by any act or action of the officials/defendants in their personal capacity, they could be sued in their personal names‑‑‑Only persons who could be made parties in the suit under 0.1, R.3, C.P.C. were either the natural or the legal persons.

Secretary, B & R v. Fazal Ali Khan PLD 1971 Kar. 625 ref.

Z.U. Mujahid for Plaintiff. N.K. Kurd for Defendant No.7.

2001 C L C 707

[Karachi]

Before Zahid Kurban Alavi, J

BROKEN HILL PROPRIETARY COMPANY LIMITED‑‑‑Plaintiff

versus

GHEE CORPORATION OF PAKISTAN (PRIVATE)

LIMITED and others‑‑‑Defendants

Suit No.230 of 1999, decided on 20th October, 1999.

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

‑‑‑‑S. 47‑‑‑Suit relating to execution of decree‑‑‑Maintainability‑‑‑All questions arising between parties to the suit in which decree was passed, should be determined by the Court executing the decree and not by a separate suit as suit relating to execution of a decree would not be maintainable.

PLD 1965 Pesh. 108; PLD 1986 Lah. 912 and AIR 1930 PC 86 ref.

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

‑‑‑‑S. 47‑‑‑Execution of decree‑‑‑Executing Court, subject to any objection as to limitation and jurisdiction, could treat proceedings under S:47, C.P.C. as a suit or a suit as proceedings and could if necessary, order payment of any additional court‑fee.

Abid T. Japanwalla for Plaintiff. Samiuddin Sami for Defendants.

2001 C L C 713

[Karachi]

Before Rasheed Ahmed Razvi, J

Messrs HUFFAZ SEAMLESS PIPE INDUSTRIES

LTD., KARACHI‑‑‑Plaintiff

versus

ALLIED BANK OF PAKISTAN LIMITED, KARACHI‑‑‑Defendant

Suit No.1338 and Civil Miscellaneous Application No.9013 of 1999, decided on 9th December, 1999.

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

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Interim injunction, grant of‑‑‑Plaintiff was required to prove that he had a good prima facie case and that the balance of convenience lay in favour of granting interim injunction and that unless the same was granted, he would suffer irreparable loss and injury.

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

‑‑‑‑S. 9‑‑‑Specific Relief Act (I of 1877), Ss. 10, 42 & 55‑‑‑Civil Procedure

Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑‑Suit for declaration, mandatory injunction and recovery of amount‑‑‑Plaintiffs alongwith plaint had filed application seeking interim injunction against Bank restraining ' it from sending the names of plaintiff‑company and its Directors to the State Bank of Pakistan as defaulters‑‑‑Amount claimed by defendant‑Bank had not finally been determined or adjudicated by the competent Banking Court‑‑­Apprehension of the plaintiffs that the mark‑up had been wrongly and maliciously calculated and that huge penalties had been imposed, could not be ruled out as the amount the plaintiffs were liable to pay was yet to be determined by a competent Banking Court‑‑‑Before adopting coercive methods in order to recover statutory dues, there should be a well‑ascertained and determined sum of money‑‑‑Efforts of the Banks and the State Bank of Pakistan should be to recover the stuck up loans, but at the same time some efforts should be adopted for recovery of outstanding loans from a non‑wilful defaulter without destroying the company which had obtained such loan‑‑­Defendant‑Bank before forwarding the name of the plaintiff as defaulter to the State Bank of Pakistan should consider all such facts as well as all the circulars of the State Bank of Pakistan issued from time to time.

Shahzad Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139; Deputy Custodian of Enemy Property v. K.E.S.C. Ltd. 1986 CLC 2808; Ali Khan Junejo and 7 others v. I.D.B.P. and 2 others C.M.A. No.9657 of 1999 in Suit No.1560; Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1986 SC 67; Abdul Latif v. Government of West Pakistan and others PLD 1962 SC 384 and Raj Kumar and 3 others v. National Bank of Pakistan and another 1994 CLC 206 ref.

Mansoor‑ul‑Arfin for Plaintiff. A.I. Chundrighar for Defendants.

2001 C L C 719

[Karachi]

Before Zahid Kurban Alavi, J

NAZIR HUSSAIN and another‑‑‑Plaintiffs

versus

GOVERNMENT OF SINDH through

Secretary, Local Self Department

and another‑‑‑Defendants

Suit No.936 of 1990, decided on 10th October, 2000.

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

‑‑‑‑S. 1‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 117 & 118‑‑‑Fatal accident‑‑­Suit for compensation‑‑‑Liability of defendant, burden to prove‑‑‑Deceased had died due to fall of latrine constructed and managed by the defendants‑‑­Defendants (Municipal Committee) denied their responsibility to pay compensation to the plaintiff contending that latrine was kept and managed by the contractor and he was responsible to maintain the same‑‑‑Defendants had failed to produce any document or witness to support their version‑‑­When anybody denied liability on the ground that the worker was engaged by contractor, the burden to prove existence of contract and terms thereof lay on the shoulders of owner and in case owner had no evidence to prove such contract, such burden having not been discharged, the owner would be held liable to pay compensation‑‑‑Defendants, held, were responsible for the proper maintenance of latrine and also were responsible to pay compensation to the plaintiffs.

1974 SCMR 269 ref.

(b) Fatal Accidents Act (X111 of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Maintainability‑‑‑Plaintiffs had alleged that their deceased son had died on account of negligence and default in performance of duties on the part of defendants (Municipal Committee etc.) as they had failed to take reasonable care in construction and maintenance of public latrine which collapsed and consequently the roof and wall fell down on the deceased while he was using the same‑‑‑Defendants had failed to produce any oral or documentary evidence to shift the responsibility of keeping the latrine in safe conditions upon the contractor‑‑‑Defendants could not be absolved from their responsibility to pay compensation to the plaintiffs‑‑‑Suit filed by plaintiffs was fully maintainable and was covered under Fatal Accidents Act, 1855‑‑‑Suit was decreed and amount .of compensation was awarded to plaintiffs keeping in view expected life span of deceased and his earning capacity.

Municipal Corporation of Delhi v. I. Subhagwanti AIR 1966 SC 1750 and Kuppammal v. M.&S.M. Ry. Co. Ltd. AIR 1938 Mad. 117 ref.

(c) Fatal Accidents Act (X111 of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Assessment of damages‑‑­Deceased, who was unmarried, died in accident leaving behind mother aged forty years and father aged forty‑five years‑‑‑Life span in Pakistan for the purpose of determination of question of damages in fatal accident cases was seventy years‑‑‑Since deceased was unmarried, his life expectancy would not be considered for the purpose of assessment of damages,, because whenever unmarried person died leaving behind the father and mother who were the specified beneficiaries under the scheme of Fatal Accidents Act, 1855, the beneficiary having the lesser of the age among them would be considered for the purpose of quantum of damages‑‑‑Age of mother of the deceased being lesser than the age of father, same would be considered for finding the years for which the pecuniary loss was sustained on account of death of deceased‑‑­Thirty years (70‑40-30) would be age for which the compensation would be granted to the plaintiffs‑

Nasir Maqsood for Plaintiffs. Nemo for Defendants, Date of hearing: 25th August, 2000.

2001 C L C 730

[Karachi]

Before Zia Perwez, J

ASLAM RAZA‑‑‑Applicant

versus

MUHAMMAD NAWAZ‑‑‑Respondent

Civil Revision Application No.29 of 2000, decided on 22nd December, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), $. 115 & O. XLI, R.31‑‑‑Suit for specific performance of contract ‑‑‑Revisional jurisdiction, exercise of‑‑­Scope‑‑‑Judgment of Trial Court based on conclusion arrived at after examination of evidence, was upheld by Appellate Court below‑‑‑Concurrent finding of facts recorded by Courts below, was not suffering from any misreading, non‑reading or misconstruction of the facts and Courts below had not committed any irregularity and illegality in exercise of their jurisdiction‑‑‑Said finding of Courts below based on record, could not be interfered with by High Court in exercise of its revisional jurisdiction.

Iftikharuddin Hyder Gardezi v. Central Bank of India 1996 SCMR 669; Nasir Abbas v. Manzoor Hyder Shah PLD 1989 SC 568; Mehrban v. Hamid Khan 1985 CLC 1780; Hassan Shah v. MalOQk Shah 1987 CLC 2281; Dr. Major Abdul Ahad Khan v. Muhammad Iqbal PLD 1989 Kar. 102; Muhammad Kabeeruddin v. Muhammad Muneeruddin 1993 CLC 747; Roshi v. Mst. Fateh 1982 SCMR 542; Umeruddin v. Ghazanfar Ali PLD 1985 Lah. 498; Sindh Flour Mills Ltd. v. Abdul Hussain Masooji Jafferi PLD 1965 (W.P.) Kar. 567; Akhtar Begum v. Allah Jawaya AIR 1936 Lah. 543; Darya Thathera v. Narain Thathera AIR 1931 All. 597; Mst. Ummatul Waheed v. Mst. Nasira Kausar 1985 SCMR 214; Ghulam Rasool v. Sardar­ul‑Hassan 1997 SCMR 976; Messrs Waqas Enterprises v. Allied Bank of Pakistan 1999 SCMR 85; Muhammad Sadiq v. Imamuddin 1994 CLC 103; Haji Ghulam Rasool v. The Chief Administrator of Auqaf 1995 CLC 696; 1994 CLC 102; Muhammad Umer Baig v. Sultan Mahmood Khan PLD 1970 SC 139; Abdul Khaliq v. Rashid Ahmed 1999 MLD 2156; Kanwal Nain v. Fateh Khan PLD 1983 SC 53 and Zareen Khan v. Mureed Khan 1998 CLC 1794 ref.

Illahi Bux Kehar for Applicant.

Ali Ahmed Qureshi for Respondents.

2001 C L C 737

[Karachi]

Before S. Ali Aslam Jafri, J

BANKERS EQUITY LTD. and others-‑‑Applicants

versus

KHANPUR SUGAR MILLS and others‑‑‑Respondents

Suit No.1338 of 1997 in Civil Miscellaneous Application No.436 of 2000, decided on 22nd December, 2000.

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

‑‑‑‑Ss. 3, 7 &. 27‑‑‑Civil Procedure Code (V of 1908), S.152‑‑‑Amendment of judgments, decrees or orders‑‑‑Application for‑‑‑Powers of Banking Court‑‑‑Application was objected to on the ground that Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 being a special enactment, S.152, C.P.C. was not applicable and application under S.152, C.P.C. was not sustainable‑‑‑Validity‑‑‑Banking Court was not divested of its powers under S.152, C.P.C. in making necessary corrections or amendments in a decree if the same was found to be not in consonance with the terms of compromise filed by parties as a result of accidental slip or omission‑‑‑Application t1nder S.152, C.P.C. in a banking case was maintainable and Court was competent to correct/modify the mistakes in a decree if caused due to some clerical or arithmetical mistake due to accidental slip or omission, but in a consent decree the Court was not expected to insert something from outside to which the parties to the compromise had not agreed.

(Moulvi) Zahirulsaid Allvi v. R,S. Seth Lachmi Narayan AIR 1931 PC 107; Mst. Ashraf Bibi v. Barkat Ali PLD 1956 Lah. 27; National Development Finance Corporation v: Anwarzaib White Cement Limited and others Banking Suit No. 1472 of 1997 and Messrs Gold Star International and another v. Muslim. Commercial Bank Limited 2000 MLD 421 ref.

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

‑‑‑‑S. 21‑‑‑Civil Procedure Code (V of 1908), S.152‑‑‑Amendment of judgments, decrees or orders‑‑‑Application for‑‑‑Maintainability‑‑‑Judgment and decree not according to compromise‑‑‑Remedy‑‑‑Scope of amendments and correction under S.152, C.P.C. was only to the extent of clerical and arithmetical mistakes‑‑‑Compromise application, the judgment accepting and allowing the compromise and decree prepared by Court in pursuance thereof had shown difference between the term of compromise and judgment and decree prepared‑‑‑Such judgment and decree was not due to any accidental slip or omission but Court while passing the judgment and preparing the decree had incorporated so many other things, not finding place in the compromise‑‑‑Decree being not in accordance with the terms of the compromise, case did not fall within the ambit of S.152, C.P.C. but remedy available to judgment‑debtor/applicant was by way of appeal under S.21 of Banking Companies (Recovery of Loans, Advances, Credits and Finances Act, 1997 and application under S.152, C.P.C. was not maintainable

Mansoorul Arfin for Applicants/Defendants. Bashir Ahmad Khan for Objectors/Plaintiffs.

ORDER

2001 C L C 745

[Karachi]

Before Zia Perwez, J

QAIMUDDIN and 3 others‑‑‑Petitioners

versus

MUHAMMAD HANIF and 6 others‑‑‑Respondents, Civil Revision No.42 of 1998, decided on 22nd December, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O.IX, R.9‑‑‑Dismissal of suit for non‑prosecution‑‑‑Restoration of‑‑‑Case was fixed for plaintiffs' evidence but neither the plaintiff nor his counsel appeared in the Court and suit was dismissed for non‑prosecution‑‑‑Plaintiff could not appear due to his illness and his counsel was out of station as he was appearing in other case there‑‑­Plaintiff/petitioner had stated that he would not seek any adjournment and that it was in the interest of justice and fairplay that the matter be decided on merits rather than the shutting out him on technical ground‑‑‑Justice could not be sacrificed on the altar of technicalities and case could be decided on facts yet to be proved in evidence‑‑‑Plaintiff should be afforded an opportunity .for the decision of the case on merits after recording the evidence in the interest of justice‑‑‑Refusal to allow plaintiff/petitioner to produce his evidence would not only amount to shutting out the evidence but also denial of justice on technical grounds.

Moosa Khan v. Abdul Haque 1993 SCMR 1304; Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051; Dummar Coal Company v. Akbar Khan 1986 CLC 2458; Muhammad Saddique and 2 others' case 1993 CLC 1158; Muhammad Ramzan v. The Director, Military Land Cantonment, Rawalpindi and another 1986 CLC 245; Ghulam Rasool and others v. Karim Bakhsh and others 1990 CLC 1439; Zakirullah Khan v. Faizullah Khan and others PLD 1999 SC 971; Abdul Hamid Ismail v. Messrs Abdul Rehman Abdul Ghani PLD 1959 Kar. 376 and Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822 ref.

Gural Das M. Chhawria for Petitioner. Mazhar Ali M. Siddiqui for Respondents.

Date of hearing: 11th December, 2000.

2001 C L C 834

[Karachi]

Before Amanullah Abbasi, J

Mrs. NAJMA MUJTABA‑‑‑Appellant

versus

Mrs. SHAHNAZ ANWAR ‑‑‑Respondent

First Rent ,Appeal No.401 and Civil Miscellaneous Applications Nos.880 and 1405 of 1998, decided on 1st March, 1999.

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

‑‑‑‑Ss..17(4)(e) & 24‑‑‑Bona fide personal need of landlord‑‑‑Landlady in her affidavit‑in‑evidence had stated that her husband had been transferred to Karachi and she herself was residing in her father's house‑‑‑Said affidavit had not been controverted by the tenant‑‑‑Landlady had proved through her evidence that premises in question was required by her for personal bona fide use and for use of her family‑‑‑Tenant in circumstances was rightly ordered to be ejected from the premises on round of bona fide personal need of landlady.

PLD 1995 Pesh. 9; 1987 CLC 1716; NLR 1980 Al. 451 ; 1985 CLC 2094; 1989 CLC 662; 1989 CLC 662; 1989 CLC 975; 1991 CLC 2039; 1995 MLD 847 and 1991 SCMR 1421 ref.

Gulzar Ahm for Appellant. Kamaluddin Ahmed for Respondent.

Dates of hearing: 12th and 22nd February, 1999.

2001 C L C 848

[Karachi]

Before Muhammad Mujibullah Siddiqui, J

QAMARUDDIN‑‑‑Applicant

versus

MUHAMMAD SADIQ and others‑‑‑Respondents

Civil Revision Application No.261 of 1998, decided on 20th October, 2000.

(a) Words and phrases‑‑‑

...... Shall" and "may"‑‑‑Connotation‑‑‑Ordinarily the word "shall" is construed as couching a mandatory provision, but very often the words "shall" and "may" connote interchangeable concepts.

Statutory Construction by Crawford, 1940 Edn" pp.261‑262 and Interpretation of Statutes by Maxwell, 12th Edn., p.314 ref.

(b) Interpretation of Statutes‑‑‑

‑‑‑‑ Mandatory or directory nature of a statute ‑‑‑Determination‑‑­Considerations necessary for determination of such question ‑‑‑Scope‑‑­Answer has to depend on several questions in regard to the correct ‑interpretation of the statute itself, the objects which the statute wants to fulfill the consequence which follows the non‑compliance of the rule; the prejudice and quantum thereof that it causes to the other party by non­compliance; the penalty which the statute prescribes in the event of non­compliance and the nature of the provision, whether it is for the benefit of the entire populace, or, is in the limited sense‑‑‑While determining the nature of the provision of a statute, all such questions need to be considered.

Interpretation of Statutes by Maxwell, 12th Edn., p.3,14 and Statute Law by Craies, 6th Edn. ref.

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

‑‑‑‑O. XLIII, R.3‑‑‑Notice before presentation of appeal‑‑‑Object and scope of O.XLIII, R.3, C.P.C.‑‑‑Before enactment of O.XLIII, R.3, C.P.C., no less than three or four successive dates of hearing were consumed, so that the parties could become ready by knowing the case of each other‑‑‑Order XLIII, R.3, C.P.C. was enacted, so that such wastage of time could be avoided but just for that reason, O.XLIII, R.3, C.P.C. could not be termed to be mandatory rule‑‑‑Non‑compliance with O.XLIII, R.3, C.P.C. must not inevitably result in dismissal of appeal.

Mrs. Dino Maneku Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693 ref.

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

‑‑‑‑O. XLIII, R.3‑--‑Notice before presentation of appeal‑‑‑Failure to give such notice‑‑‑Effect‑‑‑Dismissal of appeal‑‑‑Validity‑‑‑When Lower Appellate Court gives pre‑admission notice to the respondent, such defect stands cured‑‑‑Appeal cannot be dismissed on such legal ground accordingly.

Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693 ref.

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

‑‑‑‑O. XLIII, R.3 & O.XXXIX, Rr.l, 2‑‑‑Interim injunction, grant of‑‑­Failure to give notice under O.XLIII, R.3, C.P.C.‑‑‑Petitioner preferred appeal against status quo order granted by Trial Court, but due to failure to give notice prior to the filing of appeal, Lower Appellate Court dismissed the appeal‑‑‑Validity‑‑‑Where the counsel for respondent had appeared in Lower Appellate Court prior to the consideration of merits and application of mind by the Court, substantial compliance was made with the provisions under O.XLIII, R.3, C.P.C.‑‑--Appeal in the present case, was not decided on merits and the same was dismissed for technical non‑compliance of the provisions contained in O.XLIII, R.3, C.P.C.‑‑‑Order passed by Lower Appellate Court had caused miscarriage of justice and the same was illegal‑‑­Order was set aside and the case was remanded to Lower Appellate Court for decision on merits.

Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693; Nazir Ahmed Jagirani Baloch 1987 CLC 1750; Salahuddin v. Syed Mansoor Ali Shah 1997 SCMR 414; 1997 CLC 659; Muhammad Matin v. Mrs. Dino Manekji Chinoy and others PLD 1983 Kar. 387; PLD 1990 Lah. 266; Sirja Din and others v. Province of Punjab 1984 CLC 1287; Muhammad Shafi v. Muhammad Amin 1984 CLC 1528; Muhammad Siddique and 6 others v. Boota PLD 1985 Lah. 243.; Ghulam Rasul v. Mst. Fatima 1987 CLC 1177; Messrs Haji Suleman Gowawala & Sons Ltd. v. Usman and 13 others 1985 CLC 168; Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others 1988 CLC 448; Haji Muhammad Naeem and another v. Malik Ghulam Nabi and 5 others PLD 1988 Quetta 9; Abdul Ghani v. Settlement and Rehabilitation Commissioner and another 1983 NLR Civil 558 and Elite D. Silve v. Dilawar Hussain 1993 CLC 361 ref.

Rizwan Ahmed Siddiqui for Applicant.

Mehmood Habibullah for Respondents.

Date of hearing: 20th October, 2000.

2001 C L C 867

[Karachi]

Before Muhammad Ashraf Leghari, J

Mst. AZIZ KHATOON and 7 others‑‑‑Applicants

versus

LUDHARAM and 6 others‑‑‑Respondents

Civil Revision No.4 of 1997, decided on 25th May, 2000.

(a) Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S. 9‑---‑Qanun‑e‑Shahadat (10 of 1984); Art.100‑‑‑Suit against forcible dispossession from property‑‑‑Document more than thirty years old‑‑­Presumption‑‑‑Suit property was purchased by predecessor of plaintiffs in 1926 through registered sale‑deed and sale‑deed was not challenged by the defendants ‑‑‑Vendee thereafter in 1957 had gifted suit land to plaintiffs and gift‑deed executed by their father in favour of plaintiffs was also not challenged by the defendants and property was also in possession of the plaintiffs since long‑‑‑Sale‑deed and gift‑deed being documents of more than thirty years old, their genuineness could not be challenged‑‑‑Possession of suit property was with plaintiffs and same was also entered in Revenue Record in their names and they were paying land revenue to the Government‑‑‑Courts below, in circumstances, had rightly decreed the suit.

PLD 1968 SC 241; PLD 1987 Rev. (Sindh) 25 and Jekamdas and 'another v. Abdul Nabi PLD 1968 SC 241 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Scope of civil revision was very limited‑‑‑Petitioners having failed to point out any mis-appreciation of evidence or misreading of the same, concurrent judgments of Courts below could not be interfered with by High Court in exercise of its revisional jurisdiction.

Ali Ahmed Qureshi for Applicants.

Lachmandas for Respondents Nos. l to 4.

Ali Azhar Tunio, Asstt. A.‑G. for Respondents Nos.5 to 8.

Date of hearing: 25th May, 2000.

2001 C L C 875

[Karachi]

Before Anwar Mansoor Khan, J

KANEEZ BEGUM‑‑‑Plaintiff

versus

KARACHI ELECTRIC SUPPLY CORPORATION

through Chairman/Managing Director or

Secretary‑‑‑Defendant

Suit No.320 of 1997, decided on 1st February, 2001.

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

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Rule of "res ipsa loquitur", meaning and applicability of‑‑‑Case of plaintiff was that her son aged eleven years had died on account of electric shock caused to him when he came into contact with an energized electric pole erected by the Electric Company‑‑‑Plaintiff had claimed that death of her son was caused due to the negligence, default and wrong act of the company which had failed to take adequate measures to curb the danger that prevailed in the street‑‑‑Death of son of plaintiff, cause of death and place of death were not denied by the company‑‑‑Onus of proof, in circumstances, shifted on the company to show that it was not due to their negligence that the death occurred‑‑‑Plaintiff as a general rule has to prove negligence of defendant‑ and it was not for the defendant to disprove same, but in cases where true cause of death lay solely within the knowledge of defendant then such hardship would be avoided by invoking the rule of "res ipsa loquitur" (the thing speaks for itself)‑‑‑Cause of death of deceased was electrocution by electric poles erected by the company and it was within the knowledge of company that electricity could cause damage and even could kill a person‑‑‑Had company been cautious and carried out its duty diligently, the accident could have been avoided‑‑‑Plaintiff could prove the accident, but could not prove as to how it happened so as to show its origin in the negligence of the defendants‑‑­Company could not establish by whatever evidence that it was not liable and had miserably failed to show that it acted diligently‑‑‑Case of plaintiff having fully been proved against the company, suit was decreed and amount of compensation was determined taking into consideration age and earning capacity of the deceased.

(b) Maxim‑‑‑

----Res ipsa loquitur"‑‑‑Meaning, scope and applicability dilated upon.

Mst. Kamina .v. Al‑Amin Goods Agency 1992 SCMR 1715; Ursulina D'Lima and others v. Orient Airways Limited and another PLD 1960 Kar. 712; Pakistan Steel Mills Corporation Ltd. V. Malik Abdul Habib 1993 SCMR 848; Qazi Arifuddin _ and another v. Government of Sindh through Secretary, Ministry of Health and others PLD 1991 Kar. 291; Kulsoom v. Jalil Ahmed Khan PLD 1964 Kar. 72; P.I.A. v. Ursulina D.Lima PLD 1966 Kar. 580; Nasreen v. Quality Steel and others PLD 1981 Kar. 561; Kandan v. Al‑Hayat Services (Pvt.) Ltd. 1988 CLC 525; Khatoon v. Noor Sher Khan 1988 MLD 1236; Al‑Hayat Services v. Kandan 1989 CLC 2153; Bhurmal and, Mitra Motor Association v. Reghunath Bansilal Kasal AIR 1963 Born. 144; Barkway v. South Wales Transport Co. Ltd. (1950) 1 All ER 392; Government of Punjab v. Mst. Kamina 1990 CLC 404 Billard v. North British Railway Co. (1923) SC 11 L 43; Cream v. Smit (1965) 1 WIR 1454; KTC v. Mst. Hajra H.C.A. No.70 of 1988; Pakistan Steel Mills v. Malik Abdul Habib H.C.A. No.55 of 1990; Farrakh Hamid Rizvi v. Managing Director and others 1989 MLD 3533; Mst. Hajira Begum v. KTC Suit No.610 of 1985; Iqbal Hussain Jafery v. K.E.S.C. 1994 CLC 1903; Hassan Nawaz Khan v. Municipal Corporation Multan 1994 MLD 1995; K.T.C. v. Kaisar Jahan 1995 CLC 196; Road Transport Board N.­W.F.P. v. Mst. Gul Zarina 1995 CLC 83; Jahangir Services Pvt. Ltd. v. Rukhsana Begum PLD 1995 Kar. 329; Amina v. Government of Pakistan 1995 MLD 1922; Nisar Ahmed v. Mst. Uroos Fatima 1996 MLD 1913; Mst. Shamim Akhtar v. Javedan Cement 1997 CLC 955; Karim Bux v. K.E.S.C. 1997 CLC 507; Shah Bashir Alam v. Arokey Chemical Industries Ltd. 1997 MLD 2308; Punjab Road Transport Corporation, Lahore v. J.V. Gardner 1998 CLC 199; Mst. Nafisa Begum v. Muhammad Ismial 1989 CLC 2218; Farrukh Hamid v. M.D. Pak Arab Refinery 1989 MLD 1228; Qazi Rafiuddin v. Government of Sindh PLD 1991 Kar. 291; Din Muhammad v. Faqir Muhammad PLD 1970 Lah. 442; Mst. Momina Bai v. Ghulam Muhammad PLD 1977 Kar. 685; Mst. Kamina v. Al‑Amina Goods Transport. Agency 1988 CLC 898; Government of Pakistan and others v. Ishrat Begum and others 1999 MLD 768 and Vicar Ahmed v. Blue Lines (Pvt.) Ltd. 1989 CLC 229 ref.

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

‑‑‑‑S. 1‑‑‑Electricity Rules, 1973, R.49‑‑‑Fatal accident ‑‑‑Suit for compensation‑‑‑ Responsibility of defendant‑‑‑Death of son of plaintiff occurred on account of electric shock caused to him when he came into contact with an energized electric pole erected by defendant which was liable to be insulated in the proper manner so that the electrical current passing through the wires, would not energize the pole‑‑‑Company under provision of R.49 of Electricity Rules, 1973 was required to maintain the electrical system‑‑‑Where it was proved that the death was direct cause of electrocution, burden would shift upon the concerned Authority to prove that all care, caution and precautionary measures were taken to possibly avoid happening of energisation of the poles‑‑‑Law had been made to protect the people who were not aware of the lurking danger of the electrical equipments ‑‑‑Electrical installations had to be properly. earthed‑‑‑Had the company strictly followed said rule, deceased could have been saved‑‑­Negligence of the company having caused the death of the young boy, it was liable for the consequences.

Chairman, WAPDA v. Naseer Ahmed 2000 CLC 1926; Sultana Babi and another v. Karachi Electric Supply Corporation 1999 CLC 273; Mst. Rafiqan through Attorney v. K.E.S.C.‑1999 CLC 1812; Shah Bashir Alam and others v. Messrs Arokey Chemical Industries Ltd. 1997 MLD 2308; Karim Bakhsh v. K.E.S.C. 1997 CLC 507; S. Iqbal Hussain Jaffery v. K.E.S.C. 1994 CLC 1903; Barkat Ali Khan and others v. K.E.S.C. PLD 1983 Kar. 204; Mst. Sharifan and others v. K.E.S.C. PLD 1981 Kar. 701 and Iftekhar Hussain and others v. K.E.S.C. PLD 1959 (W.P.) Kar. 550 ref.

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

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Determination of quantum of compensation‑‑‑Life span of a Pakistani was about seventy years which could be less or more, but it would be in respect of a person of an ideal health, surroundings and the manner in which person stood‑‑‑Life span of deceased was taken seventy years‑‑‑Plaintiff (mother of deceased) who was thirty‑eight years of age at time of death of her son, had calculated the total earning of deceased for the period up to thirty‑two years being the number of years remaining for the plaintiff to enjoy the benefits of the earning of the deceased which was incorrect because plaintiff had not considered that at a certain point of time deceased would have married and would have his own family‑‑‑Benefit; therefore, had to be substantially reduced to the plaintiff after the marriage of her son‑‑‑Court had divided the pecuniary benefits in two parts, namely, the period during which deceased would have remained unmarried and the period after he had married, but still taking care of his mother‑‑‑Court estimated the age of the deceased, at which he would have married as twenty‑six years and till the deceased would have reached said date, Court had allowed the deduction of personal expenses of the deceased at the rate of one‑third of his income and determined quantum of compensation accordingly.

Nasir Maqsood for Plaintiff.

Muhammad Ikram Siddiqui for Defendant.

Date of hearing: 8th January, 2001.

2001CLC913

[Karachi]

Before Zahid Kurban Alavi, J

ASHIQ MASIH and 5 others‑‑‑Plaintiffs

versus

ABBOT LABORATORIES PAKISTAN LIMITED

through Director or Managing Director

and another‑‑‑Defendants

Suit No.312 of 1988, decided on 16th January, 2001.

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

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Defendant had denied the allegation that deceased was hit by the wagon driven by him, but stated that deceased was hit by a car driven by a foreigner‑‑‑Defendant could not prove his claim by producing independent and reliable evidence‑‑‑Once the defendant had pleaded that deceased was not hit by his vehicle, but by another' one, he had taken upon himself burden to prove such fact by independent and reliable evidence, which he had failed to do, despite accident took place on a busy road where at the time of accident the place of the accident was surrounded by many pedestrians‑‑‑Defendant had also failed to give particulars of other car which allegedly had caused the accident‑‑­Plaintiffs, in circumstances, had proved their case against the defendants.

Mrs. Gut Bano v. Muhammad Ramzan and another 1982 CLC 120 and KW&SB v. Mirza Qasim Baig H.C.A. No.67 of 2000 ref.

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

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Acquittal/punishment of defendant driver which allegedly had caused the accident would not have any bearing on the outcome of the cases under Fatal Accidents Act, 1855--- Determination of guilt in criminal cases would not have any value before the Civil Court in adjudicating civil matters.

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

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Plaintiffs having proved their case against defendants, suit was decreed and amount of compensation was awarded to plaintiffs keeping in view the health, age and earning capacity of the deceased.

Nasir Maqsood for Plaintiffs.

Bashir Ahmad Khan for Defendants.

Date of hearing: 14th December, 2000.

2001 C L C 928

[Karachi]

Before Zahid Kurban Alavi, J

Mst. NUSRAT IRFANA‑‑‑Plaintiff

versus

FEDERAL GOVERNMENT OF PAKISTAN through

Secretary, Ministry of Defence, Islamabad

and 3 others‑‑‑Defendants

Suit No.647 of 1991, decided on 10th December, 1999.

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

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Suit could be filed by any one of the legal heirs of the deceased by showing other legal heirs as beneficiaries and even if all the legal heirs were not impleaded as plaintiffs the suit still would be competent by virtue of S.1 of Fatal Accidents act, 1855.

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

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Plaintiff had alleged that tractor which caused accident was being driven rashly and negligently by the defendant driver who was an employee of the other defendants‑‑‑Defendants who denied allegations of plaintiff had contended that motorcycle was being driven rashly, negligently and with high‑speed by the deceased which resulted in an accident‑‑‑Defendants had failed to prove their version of such accident satisfactorily‑‑‑Once the accident was admitted the presumption of negligence would arise and moreso when the defendants would give their own version of accident which was different from the version given by the plaintiffs then, the burden would shift upon the defendants to prove the case‑‑-Defendants having failed to discharge their burden of proving their version suit w reed accordingly.

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

‑‑‑Fatal accident‑‑-Suit for compensation‑‑‑Evidence of defendants which was beyond the pleading, was liable to be ignored as party could not be allowed to prove which he had not alleged‑‑‑Between cyclist and a driver of the bus the responsibility of the driver of the bus to use care and diligence was greater‑‑‑Duty to use care would increase proportionately with the danger involved in dealing with the particular type of vehicle‑‑‑Evidence of driver was of no consequence being an interested witness unless supported by independent evidence to corroborate the same‑‑‑Suit was decreed and amount of compensation was determined keeping in view the health and earning capacity of the deceased.

Nasir Maqsood for Plaintiff. Defendants (absent).

2001 C L C 942

[Karachi]

Before Zahid Kurban Alavi, J

IL HASSAN and 6 others‑‑‑Plaintiffs

versus

KARACHI TRANSPORT CORPORATION through

Managing Director and 2 others‑‑‑Respondents

Suit No. 1168 of 1990, decided on 10th October, 2000.

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

‑‑‑‑S. 1‑‑‑Fatal accident‑‑‑Suit for compensation ‑‑‑Factum of incident as disclosed by plaintiffs in plaint had not been denied by the defendants who did not put forward any defence at all, but generally denied the allegations of the plaintiffs‑‑‑Witnesses produced by plaintiffs in proof of their version with regard to rash and negligent driving of bus by the defendant and consequent death of the deceased owing to carelessness of defendant, were cross-examined by the defendant, but evidence of witnesses remained unchallenged‑‑‑Plaintiffs, in circumstances, had fully proved their case against defendants and were entitled to recover amount of compensation from the defendants‑‑‑Suit was decreed and amount of compensation was awarded keeping in view age, health and earning capacity of the deceased.

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

‑‑‑‑O. VIII, Rr. 3 & 4‑‑‑Denial of defendant in written statement‑‑‑Denial was to be specific and it would not be sufficient for a defendant to deny generally the grounds alleged by the plaintiff in his written statement, but the defendant must deal specifically with each allegation of fact of which he did not admit the truth except damages‑‑‑If a defendant denied an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance.

(c) Qanun-e-Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 132 & 133‑‑‑Omission to cross‑examine witnesses ‑‑‑Effect‑‑­Omission to cross‑examine a witness on a material part of his evidence would give rise to inference that truth of his statement had been accepted‑‑‑Such unchallenged statement of witness should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence.

Nasir Maqsood for Plaintiffs.

Naraindas C. Motiani for Respondents.

Date of hearing: 25th August, 2000.

2001 C L C 957

[Karachi]

Before Zahid Kurban Alavi and S.A. Rabbani, JJ

KARACHI WATER AND SEWERAGE BOARD through

Managing Director‑‑‑Appellant

versus

Mst. FAREEDA‑‑‑Respondent

High Court Appeal No.365 of 1998, heard on 10th November, 2000.

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

‑‑‑‑S. 1‑‑‑Death of child by falling into 1 uncovered manhole‑‑‑Suit for compensation‑‑‑Judgment decreeing the suit had been challenged by judgment‑debtors contending that death of child being result of contributory negligence on the part of his parents, the civic agencies were not liable to pay the compensation‑‑‑Validity‑‑‑Lack of caution and care on the part of the parents would not absolve the Authority of their legal and moral obligation to ensure the safe and secured maintenance of sewerage lines including, maintenance of manholes‑‑‑Defence of contributory negligence .could not be permitted to be set up by the civic agencies in such cases.

Karachi Water and Sewerage Board v. Mairajuddin 2000 MLD 112; Karachi Water and Sewerage Board v. Muhammad Moosa 1997 CLC 925 and AIR 1999 Punj. and Har. 32 ref.

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

‑‑‑‑S.1 Death of child by falling into uncovered manhole‑‑‑Suit for compensation‑‑‑Decree passed in suit had been challenged by judgment debtors contending that suit having been filed by the mother of child alone, granted to compensate the other beneficiaries‑‑­Validity‑‑‑Suit filed under S. 1 of Fatal Accidents Act, 1855 enured for the benefits of all the persons entitled to compensation thereunder and it was not necessary that all of them should be arrayed as plaintiffs, but the person filing the suit would be deemed to be the representative of all the beneficiaries.

Malik Raza Khan v. Pakistan PLD 1965 Kar. 441 ref.

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

‑‑‑‑S. 1‑‑‑Death of child by falling into uncovered manhole‑‑‑Suit for compensation‑‑‑Determination of amount of compensation ‑‑‑Judgment/debtors had contended that award of compensation was unconscionable and had been determined without reference to settled legal principles‑‑‑Validity‑‑­Court had awarded amount in suit for deprivation of the love and affection that the parents of the child suffered on account of the tragedy‑‑‑Loss of human life could not be measured in terms of coins‑‑‑Where deprivation of life was caused by a public functionary on account of breach of a public duty, exemplary or penal damages could be awarded‑‑‑Fixation of compensation could not be interfered with, in circumstances.

Abdul Karim Khan for Appellant.

Nasir Maqsood for Respondent.

Date of hearing:,10th November, 2000.

2001 C L C 1029

[Karachi]

Before Anwar Mansoor Khan, J

ASHRAF HANIF‑‑‑Plaintiff

versus

Mst. NAJMA ALAVI‑‑‑Defendant

Suit No. 128 of 1994, decided on 17th January, 2001.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑S. 55‑‑‑Time as essence of the contract ‑‑‑Expiry of stipulated time‑‑­Effect‑‑‑Where even time is of the essence of contract, the contract does not come to an end immediately upon expiry of the agreed time‑‑‑Only the non­-breaching party acquires an option to put the contract to an end and the party may or may not exercise such option.

Haji Muhammad Yaqoob v. Shah Nawaz 1998 CLC 21 ref.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 55‑‑‑Contract‑‑‑Time as essence of contract‑‑‑Determination‑‑‑Factors to be considered‑‑‑Mere insertion of term in agreement that certain act has to be performed up to a fixed time does not automatically make time as essence of the contract‑‑‑Intention of the parties in such regard can be gathered not only from the' terms of the contract. but also from the surrounding circumstances, the nature of property and transaction involved in the matter.

Abdullah v. Mohommed Siddique 1992 CLC 1561 ref.

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

‑‑‑‑S. 12‑‑‑Contract Act (IX of 1872), S.55‑‑‑Suit for specific performance of agreement to sell‑‑‑Whether time ‑was of the essence of contract‑‑­Determination ‑‑‑Plaintiff was pursuing the matter and was ready and willing to perform his part of contract‑‑‑Defendant failed‑to show the plaintiff clear title to the suit property‑‑‑Effect‑‑‑Defendant had acted mala fidely and purposely delayed the process‑‑‑Had the relevant documents been shown clear to the plaintiff, the conveyance would have been concluded, as such the time given in the agreement could not be taken as essence of the contract‑‑­Suit was decreed accordingly.

Sindh Industrial Trading Estate Ltd. v. Kemia Industries Ltd. 1999 CLC 1076 and Isso and another v. Mohammed Ismail and 2 others 1992 MLD 1787 ref.

Tufail H. Ebrahim for Plaintiff.

Abdul Ghafoor Mangi for Defendant.

Dates of hearing: 14th, 15th and 23rd November, 2000.

2001 C L C 1048

[Karachi]

Before Shabbir Ahmed, J

QAYYUM SHEIKH and another‑‑‑Plaintiffs

versus

PAK SUZUKI MOTOR COMPANY LIMITED, KARACHI and 2 others‑‑‑Defendants

Suit No. 1067 of 1990, heard on 21st March, 2001.

(a) Maxim-------

“Res ipsa loquitor”—Applicability--‑‑‑Pre‑conditions‑‑‑Res ipsa loquitur is which is applied where although the offending act is proved, the cause of negligence canhot be established by the plaintiff due to non‑accessibility to such evidence or because such evidence is exclusively within the knowledge of the defendant‑‑‑Rule of res ipsa loquitur applies when the occurrence suggests as a matter of reasonable inference, that it was the result of the negligence of the defendant or of some one for whose act or omission he is responsible; when the cause of occurrence is unknown and when the presumption of negligence raised by the occurrence is not rebutted by any explanation based on additional facts proved.

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

‑‑‑‑S. 1‑‑‑Suit for damages‑‑‑Maxim "Res ipsa loquitur"‑‑‑Applicability‑‑­Son of the plaintiffs died in road accident while he was driving a vehicle manufactured and sold by the, defendants‑‑‑Plaintiffs raised the plea that the accident was due to manufacturing fault of the vehicle, hence the defendants were responsible for the accident‑‑‑Evidence regarding manufacturing or technical defect of the vehicle could have been secured and produced by getting the same examined by the Motor Vehicles Inspector which had not been done‑‑‑Effect‑‑‑Such evidence was not exclusively within the knowledge or, domain of the defendants and plaintiffs had accessibility to such evidence‑‑‑Where the vehicle that inflicted the damage was not under the management and control of the defendants at the time of incident, but was with the deceased and the cause was known, rule "Res ipsa loquitur" had no application‑‑‑Suit was dismissed in circumstances.

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

‑‑‑‑Ss. 1 & 2‑‑‑Damages‑‑‑Loss to person and property‑‑‑Compensation for such losses‑‑‑Scope‑‑‑Compensation to the family of the person for loss occasioned to it by his death is provided under the provisions of S.1 of Fatal Accidents Act, 1855, and loss to. the estate of deceased may also be added in terms of S.2 of Fatal Accidents Act, 1855.

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

‑‑‑‑S. 1‑‑‑Suit for damages‑‑‑Recovery of damage caused to the vehicle‑‑­Validity‑‑‑Claim of damage caused to the vehicle in the accident cannot be recovered in suit under the Fatal Accidents Act, 1855.

Syed Zaki Muhammad for Plaintiffs.

Kamal Azfar and Kazi Faiz Isa for Defendants.

Date of hearing: 21st March, 2001.

2001 C LC 1084

[Karachi]

Before Anwar Mansoor Khan, J

COTTON EXPORT CORPORATION OF PAKISTAN

(PVT.) LIMITED, KARACHI‑‑‑Plaintiff

versus

Messrs FAZAL COTTON INDUSTRIES

and 5 others‑‑‑Defendants

Suit No.204 of 1991 and Civil Miscellaneous Application No.10351 of 2000, decided on 15th January, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXVII, R.2‑‑‑Constitution of Pakistan (1973), Art.2A‑‑‑Interest, setting aside of‑‑‑Question as to recovery of such interest against ‑Injunctions of Islam‑‑‑Dictum laid down by Supreme Court in case titled Dr. Muhammad Aslam Khaki v. Syed Muhammad Hashmi reported as PLD 2000 SC 225‑‑­Applicability‑‑‑Specific provisions of Civil Procedure Code whereby the interest was granted under the various decrees had been held to be unIslamic by Supreme Court, but in view of the specific declaration that the said provisions would cease to have effect from June 30, 2001, the provisions contained under the Civil Procedure Code would remain effective till 30th June, 2001‑‑‑Judgment and decree having been passed under the provisions of a‑ valid statute could not be modified or set aside‑‑‑Application was dismissed in limine.

Dr. Muhammad Aslam Khaki v. Syed Muhammad Hashmi PLD 2000 SC 225 ref.

Salim Salam Ansari for the Judgment‑Debtor.

2001CLC1156

[Karachi]

Before Anwar Mansoor Khan, J

NASIR AHMAD‑‑‑Plaintiff

versus

PAKLAND CEMENT LIMITED‑‑‑Defendant

Suit No. 1116 and Civil Miscellaneous Applications Nos.7911 and 7912 of 1999, decided on 14th March, 2001.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 34‑‑‑Civil Procedure Code (V of 1908), OXXXVII, R.3‑‑‑Application for leave to defend the suit‑‑‑Suit for recovery of, money‑‑‑Dispute was with regard to dishonouring of cheques‑‑‑Stay of proceedings before Civil Court under the provisions of S.34 of Arbitration Act, 1940‑‑‑Validity‑‑­Dishonouring of cheques being an independent cause of action, S.34 of Arbitration Act, 1940, was not applicable‑‑‑Application for leave to defend had to be decided on its own merits.

Messrs Pioneer Cables Limited v: Messrs Saadi Cement Limited 1999 CLC 1841 ref.

(b) Negotiable Instruments Act (XXVI of 1881)‑‑‑

‑‑‑‑S. 118‑‑‑Negotiable instruments issued without consideration ‑‑‑Effect‑‑­Such negotiable instruments cannot be acted upon.

United Bank Limited v. Ch. Ghulam Hussain 1998 CLC 816 and Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395 ref.

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

‑‑‑‑O. XXXVII, Rr.2 &.3‑‑‑Negotiable Instruments Act (XXVI of 1881), S.118‑‑‑Leave to defend the suit, grant 4f‑‑‑Suit for recovery of money on the basis of negotiable instruments‑‑‑Dispute was with regard to dishonoured cheques‑‑‑Issuance of the cheques and the same being without consideration required evidence to be led‑‑‑For the purpose of determining as to whether the disputed cheque was issued without consideration leave to appear and defend the suit was granted‑‑‑Such leave was granted subject to the defendant, furnishing security, of the amount mentioned on the face of the cheques‑‑‑Application for leave to defend the suit was disposed of accordingly.

Sultan Ahmed Shaikh for Plaintiff.

Salim Salam Ansari for Defendant.

2001 C L C 1172

[Karachi]

Before Anwar Mansoor Khan, J

UNITED BANK LIMITED‑‑‑Plaintiff

versus

Messrs AZMAT TRADING CO. (PVT.) LTD. and 5 others‑‑‑Respondents

Suit No. 1701 of 1997, heard on 14th March, 2001.

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

‑‑‑‑S. 9‑‑‑Negotiable Instruments Act (XXVI of 1881), S.118 ‑‑‑ Suit for recovery of Bank loan on the basis of negotiable instruments‑‑‑Failure to produce original instrument‑‑‑Effect‑‑‑Where Bank had bought negotiable instrument for value, unless the document in original was produced, the Bank could not claim the amount against such bill.

(b) Negotiable Instruments Act (XXVI of 1881)‑‑‑

‑‑‑‑Ss. 46 & 47‑‑‑Negotiable instrument‑‑‑Bill of exchange, failure to produce the original‑‑‑Effect‑‑‑Only one original bill of exchange is negotiable‑‑‑Where the original bill is not presented it has to be presumed and that too without exception, that the same has been negotiated‑‑‑Upon negotiation, the amount mentioned on the face of bill is deemed to have been received.

(c) Banking Companies (Recovery of Loan Advances, Credit and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 9‑‑‑Suit for recovery of Bank loan on the basis of bill of exchange‑‑­Failure to produce the original bill‑‑‑Goods exported against Letter of Credit were released without original Bill of Exchange and other shipping documents‑‑‑Effect‑‑‑Without the Bill of Exchange and other shipping documents, the goods exported against the Letter of Credit could not have been released‑‑‑Where the Bill had not been produced, High Court declined to accept the fact that the customer was liable as against the amount paid for bills purchased unless the originals were produced‑‑‑High Court rejected the claim on the ground that the price of the bills was only payable on production of the negotiable instrument‑‑‑High Court took serious note of the negligence committed in the case and recommended severe action against the officers and all concerned‑‑‑High Court further recommended that the officials/persons concerned should be made liable for the entire amount if the Bank had suffered any loss that had been caused by the finances being granted/disbursed or by the order passed in the present case‑‑Suit was dismissed accordingly.

Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315 ref.

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

‑‑‑‑S. 9‑‑‑Suit against person not a "borrower" or "customer" ‑‑‑Provisions of Banking Companies. (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Applicability‑‑‑Such person cannot be sued under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 .

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

S. 35‑A‑‑‑Compensatory costs‑‑‑Scope‑‑‑Where unnecessary harassment was caused by filing of plaint and vexatious claim was made by the plaintiffs against the defendants, compensatory cost under S.35‑A, C.P.C. was granted against the plaintiffs payable to each defendant m circumstances.

Nafees Siddiqui for Plaintiff.

Kamal Azfar, M. Saleem Thepdawala for Defendant No. 1.

Salim Salam Ansari for Defendants Nos.2 to 5.

Azizur Rehman for Defendant No. 6.

Date of hearing: 14th March, 2001.

2001 C L C 1187

[Karachi]

Before Sabihuddin Ahmed and Mushir Alam, JJ

NATIONAL BANK OF PAKISTAN‑‑‑Appellant

versus

KHAIRPUR TEXTILE MILLS LTD. and others‑‑‑Respondents

High Court Appeal No.31 of 1998, Civil Miscellaneous Applications Nos. 120 and 427 of 1999, decided' on 21st February, 2001.

(a) Void order‑‑‑

‑‑‑‑ Limitation against void order‑‑‑Statutes of limitation do no operate in respect of void orders as the same are nullity in law.

Ali Muhammad v. Hussain Bux and others PLD 1976 SC 37; Rehmat Bibi v. Punhoon Khan 1986 SCMR 362 and Malik Khawaja Muhammad and others v,. Murdman Babar and others.1987 SCMR 1543 ref.

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

‑‑‑‑S. 12(2)‑‑‑Void order and order premised on fraud and misrepresentation‑‑‑Setting aside of such orders‑‑‑‑Procedure‑‑‑Limitation‑‑­Limitation does not run against void order as the same is nullity in law and does not require to be formally set aside‑‑‑Where the law provides mechanism for setting aside order premised on fraud or misrepresentation, it presupposes that such order creates legal consequences and must be set aside in proper proceedings under S.12(2), C.P.C. or through separate suit as was the case prior to the enactment of the statutory provision of S.12(2), C.P.C.

(c) Void order‑‑‑

----"Void order" and "illegal order"‑‑‑Distinction‑‑‑Setting aside of 'such order‑‑‑Limitation‑‑‑Clear distinction exists between illegal and void orders though line of demarcation‑is not always precisely drawn‑‑‑Illegal order must be set aside through appropriate proceedings before proper forum presented within time stipulated by statutes of limitation‑‑‑Void order is such an order which can even be ignored and statutes of limitation may not he allowed to stand against such order.

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

‑‑‑‑S. 12(2)‑‑‑Order obtained by fraud or misrepresentation, setting aside of‑‑‑Such order is not nullity in law‑‑‑Order so obtained can be set aside under the provisions of S.12(2), C.P.C. by the Court which has passed the same‑‑‑Such order has to be given effect unless the same is set aside‑‑‑Order obtained by fraud or misrepresentation cannot be described as nullity in law.

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

‑‑‑‑S. 21‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Provisions of S.12(2), C.P.C.‑‑‑Applicability to proceedings before Banking Court having jurisdiction under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Dispute was regarding passing of the order of settlement of outstanding loan by Banking Court‑‑‑Contention by the Bank was that the borrower had attained the order from Banking Court by way of fraud‑‑‑Appeal against such order was filed before High Court under S.21 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 instead of initiating proceedings under S.12(2), C.P.C. before the Banking Court‑‑‑Validity‑‑‑Provisions of S.12(2), C.P.C. were applicable to such proceedings but since the Bank had already chosen to avail a remedy which was available to it, no further order was needed to be made‑‑‑Appeal was dismissed in limine.

S. Sharif Ahmed Hashmi v. Chairman, Screening Committee 1978 SCMR 367; Mian Muneer Ahmed v. United Bank Limited PLD 1998 Kar.278; Tawakal Export Corporation and others v. Muslim Commercial Bank and another 1997 CLC 1342 and Bolan Bank Limited v. Capricon Limited 1998 SCMR 1961 ref.

Gulzar Ahmed for Appellant.

Shahenshah Hussain for Respondent No. 1.

Rizwan Ahmed Siddiqui for Respondent No.9.

2001 C L C 1199

[Karachi]

Before Faiz Muhammad Qureshi, J

ABDUL HAMEED ‑‑‑ Appellant

versus

MUHAMMAD SARFRAZ KHAN‑‑‑Respondent

First Rent Appeal No. 1164 of 2000, decided on 24th January, 2001.

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

‑‑‑‑Ss. 15 & 21‑‑‑Appeal‑‑‑Ejectment of tenant‑‑‑Suppression of material facts‑‑‑Default in payment bf `rent‑‑‑Tenant had come to the Court of Rent Controller as well as High Court with pack of lies ‑‑‑ Effect ‑‑‑ Where the 'tenant had suppressed the material facts and had not come to the Court with clean hands, order of ejectment passed by Rent Controller was not interfered with by High Court.

1998 CLC 697; 1999 CLC 969 and 1995 MLD 470 distinguished.

Agha Faquir Muhammad for Appellant.

Abul Inam for Respondent.

Date of hearing: 19th January, 2001.

2001 C L C 1214

[Karachi]

Before Wahid Bux Brohi, J

DANISH HUSSAIN ‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE‑I, CENTRAL, KARACHI and others‑‑‑Respondents

Constitutional Petition No.S‑32 of 2000, decided on 14th November, 2000.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Maintenance allowance, fixation of‑‑‑Petitioner was father of the minor and was a practising lawyer having five years standing‑‑­Family Court fixed a sum of Rs.1,500 per month as maintenance allowance which was maintained by the Appellate Court‑‑‑Validity‑‑‑Maintenance allowance of Rs.1,500 per month in the metropolitan city of Karachi was hardly up to the standard of the son of a well‑to‑do Advocate‑‑‑Family Court had fully adverted to the evidence on record and assessed the same in true perspective, therefore, the Appellate Court was justified in not interfering with the same‑‑‑High Court refused to substitute its own decision for that of ‑the Courts below‑‑‑Constitutional petition was dismissed in circumstances.

Shah Jahan v. Amjad Ali, Hawaldar 2000 SCMR 88 ref.

Ms. Kausar Arnin for Applicant.

Ch. M. Ratiq, A. A.‑G. and M.M. Tariq for Respondents.

Date of hearing: 14th November, 2000.

2001 C L C 1216

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

KAURAL alias KARO‑‑‑Applicant

versus

MUHAMMAD CHUTTAL‑‑‑Respondent

Civil Revision No.70 of 1999, decided can 14th March, 2001.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 17, 21 & 30‑‑‑Award‑‑‑Allegation of‑‑‑Misconduct on the part of arbitrator‑‑‑Scope‑‑‑Refusal to make award rule of Court‑‑‑.Sole arbitrator was appointed by the Trial Court on the request of parties who submitted his award after providing opportunity to both the parties‑‑‑Respondent alleged commission of misconduct by. the arbitrator and both the Courts below refused to make the award rule of the Court‑‑‑Neither the arbitrator had committed any misconduct nor there was any tangible evidence to believe that the allegations forming the basis of objection against the award were admissible‑‑ ‑Orders of the two Courts below suffered from material illegalities and findings were perverse to the evidence on record‑‑‑Both the Courts below had illegally refused to exercise jurisdiction to make the award rule of the Court‑‑‑Orders passed by the two Courts below were set aside and the award was made rule of the Court accordingly.

Haji Tayab and 2 others v. Eastern Textile Mills Ltd., Chittagong and 12 others PLD 1970 Kar. 357; Messrs Naseem Bhai & Co. v. Messrs Pak Jute Balers Ltd. PLD 1965 Dacca 258; Kh. Ghulam Rasool Lone v. Azad Jammu and Kashmir Government PLD 1971 Azad J&K 127; Abdul Razaq and another v. Sharif Khan and 6 others 1986 CLC 281; Messrs Design Group of Pakistan v. Clifton Cantonment Board 1990 MLD 261; Mst. Murad Begum v. Muhammad Rafiq and others PLD 1974 SC 322 and Mst. Maqbool Begum and others v. Ghullan and others PLD 1982 SC 46 ref.

(b) Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑Sched. II, Art. 1, Cl.(2)‑‑‑Civil Procedure Code (V of 1908), S.115‑‑­Revision‑‑‑Court‑fees, fixation of‑‑‑Revision petition is governed by Sched. 11 of Art. 1, Cl.(2) of Court Fees Act, 1908, for which court‑fee prescribed is Rs.4 which is exempted under the law.

Syed Zaheer Hassan for Applicant.

Abdul Naeem for Respondent No. 1.

2001 C L C 1222

[Karachi]

Before Abdur Rauf Khan Lughmani, J

MUHAMMAD ALI KHAN and 33 others‑‑‑Petitioners

versus

GOVERNMENT OF N.‑W.F.P. through Collector, District Bannu and 7 others‑‑‑Respondents

Civil Revision No.41 with Civil Miscellaneous No.20 of 2000, decided on 20th March, 2000.

Land Acquisition Act (1 of 1894)‑‑‑

‑‑‑‑S. 17‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Plaint, rejection of‑‑‑Acquisition of land‑‑‑Assailing the acquisition proceedings in civil suit‑‑‑Trial Court rejected the plaint under O.VII, R.11, C.P.C. being incompetent and appeal before Appellate Court was also dismissed‑‑­Contention of the plaintiffs was that their land was acquired on the basis of political motivation and with mala fide intentions‑‑‑Validity‑‑‑Authorities had occupied the land owned by the plaintiffs after observing all formalities under the provisions of S.17 of Land Acquisition Act, 1894‑‑‑In case the plaintiffs were aggrieved of the acquisition process, they were required to file reference/objection before the proper forum but instead they tiled a civil suit‑‑‑Trial Court as well as Lower Appellate Court had rightly dismissed the suit and the appeal respectively, as the suit was not maintainable.

Gauhar Zaman Kundi for Petitioners

2001 C L C 1224

[Karachi]

Before Zia Perwez, J

Mrs. HASEENA‑‑‑Plaintiff

versus

Mrs. SHAFQAT MALIK ‑‑‑Defendant

Suit No.542 and Civil Miscellaneous Application No.10629 of 2000, decided on 16th March, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O.XII, R.6‑‑‑Specific performance of agreement to sell‑‑‑Admission of facts in written reply‑‑­Effect ‑‑‑Plaintiff was a foreign national‑‑‑Defendant demanded "No ­Objection Certificate" issued by Government, regarding permission to purchase property‑‑‑Execution of agreement was admitted by the defendant and at the time of receipt of consideration amount the defendant knew about the nationality of the plaintiff‑‑‑Refusal to execute sale‑deed on such ground‑‑‑Validity‑‑‑Receipts of the amount of sale consideration and handing over the possession of the suit property was admitted in clear, unambiguous, unqualified and unequivocal terms‑‑‑Only objection pertaining to issue of "No‑Objection Certificate" had been overcome as N.O.C. had since been issued to the petitioner by the Government‑‑‑Where facts were admitted by the defendant, application under O.XII, R.6, C.P.C. was allowed and the suit was decreed in circumstances.

Sheikh Mahmood Ahmad v. Dr. Ghaith Pharaon and 3 others 1987 CLC 2131; H. Gharibullah v. Mst. Mumtaz Begum and others 1990 CLC 1609; Mercantile Fire and General Insurance Co. of Pakistan v. Messrs Imam & Imam Ltd. 1989 CLC 2117; Premsuk Das Assaram v. Udairam Gunga Bux ILR 45 Cal. 138; J. C. Galstaun v. E. D. Sasoon AIR 1924 Cal. 190: Devi Narain v. Hassanand AIR 1927 Sindh 25; Abdul Rehman & Brothers v. Parbati Devi AIR 1933 Lah. 403 and Kassamali Bhoy v. Shaikh Abdul Sattar PLD 1966 Kar 75 ref.

Raja Sikandar Khan Yasir for Plaintiff.

Iftikhar Javed Qazi for Defendant.

Date of hearing: 22nd February, 2001.

2001 C L C 1246

[Karachi]

Before Muhammad Ashraf Leghari and S. Zawwar Hussain Jaffery, JJ

SAMO KHAN and another‑‑‑Petitioners

versus

DISTRICT RETURNING OFFICER and others‑‑‑Respondents

Constitutional Petition No,D‑199 of 2000 and Civil Miscellaneous Applications Nos.430 and 408 of 2001, decided on 14th March, 2001.

Sindh Local Government Election Rules, 2000‑‑‑

‑‑‑‑Rr. 16(4), 17 & 18(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutionai petition‑‑‑Declaration Form, non‑submission of‑‑‑Rejection of nomination papers‑‑‑Petitioner was candidate for the seat of Nazim and Naib­ Nazim‑‑‑Returning Officer accepted his nomination papers but the District Returning Officer rejected the same on the ground of non‑submission of declaration Form as required under R.16(4) of Sindh Local Government Election. Rules, 2(00‑‑‑Validity‑‑‑Where the petitioner had tiled invalid nomination papers, the same were rightly rejected by the District Returning Officer‑‑‑Order Passed by the District Returning Officer did not suffer from any illegality or infirmity and High Court declined to interfere with the same‑‑‑Constitutional petition was dismissed in circumstances.

Ernisin Equipment and Chemicals Ltd. v. State of West Bengal and another AIR 1975 SC 266, Afta6 Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863 and S.M. Ilyas and another v. Karachi Building Control Authority through Chief Controller of Buildings and another PLD 2001 Kar. 85 ref.

Gul Bahar Korai for Petitioners.

Khadim Hussain Mangi for Respondent No.3.

Ghulam Dastagir A. Shahani, Addl. A.‑G. for the State.

2001 C L C 1253

[Karachi]

Before Muhammad Ashraf Leghari and Sayed Zawwar Hussain Jaffery, JJ

HAMIDA BEGUM‑‑‑Petitioner

versus

RETURNING OFFICER and others‑‑‑Respondents

Constitutional Petition No.D‑221 and Civil Miscellaneous Application No.546 of 2001, decided on 16th March, 2001.

Sindh Local Government Election Ordinance (X of 2000)‑‑‑

‑‑‑‑S. 14‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Qualification for candidate‑‑‑Grievance of the petitioner was that her Form was rejected by the Returning Officer‑‑‑Petitioner was enlisted in two electoral lists and was convicted in a criminal, case which was later on compromised by the complainant party‑‑‑Validity‑‑‑Under the provisions of S. 14(d) of Sindh Local Government Election Ordinance, 2000, candidates and elected members should be of good character and not commonly known as violative of Islamic Injunctions and must be abstainer from major, sins‑‑­Name of the petitioner appeared in two lists, thus, she was not qualified to contest the elections‑‑‑Even otherwise factual controversies being involved in the same could not be decided in exercise of Constitutional jurisdiction.

Dr. Muhammad Islam v. Government of N.‑W.F.P. through Secretary, Food 1998 SCMR 1993 ‑ref.

Sardar Abdul Sattar Chohan for. Petitioner.

Ghulam Qadir Jatoi for Respondent No.4.

Ghulam Dastagir Shahani, Addl. A.‑G.

2001 C L C 1258

[Karachi]

Before Zahid Kurban Alavi and Mushir Alam, JJ

MUHAMMAD SHARIF‑‑‑Petitioner

versus

GOVERNMENT OF SINDH, COOPERATIVE DEPARTMENT through Secretary, Sindh Secretariat, Karachi and 2 others‑‑‑Respondents

Constitutional Petition No.D‑1054 of 1999, Civil Miscellaneous Applications Nos.4732, 4733 of 2000 and 3379 of 1999, decided on 14th December. 2000.

Cooperative Societies Act (VII of 1925)---

---S.43---Constitution of Pakistan (1973), Art.199----Constitutional petition------Affairs of Cooperative Society---Administrator—Duties and functions-----Appointment of Administrator----Scope of functions and duties of the Administrator should be restricted to investigating the affairs of the Society providing a detailed report and thereafter creating a situation conducive to the holding of elections of the Society and handling the Society back to its members‑‑‑Inquiry report having not been communicated to the Registrar, Cooperative Societies by the Administrator which was mandatory petitioner could contest show‑cause notice after receipt of the inquiry report t and after hearing the petitioner the Deputy Registrar would pass appropriate order as required under the Cooperative Societies Act, 1925 ­High Court observed that the patties might avail remedy as provided under the Cooperative Societies Act, 1925 and disposed the petition accordingly.

Kazi Wali Muhammad for Petitioner.

Sarwar Khan, Addl. A.‑G. for Respondent No. 1.

Arif Bilal Sherwani for Respondents Nos.2 and 3.

2001 C L C 1263

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

MUHAMMAD TASNIM‑‑‑Appellant

versus

MUHAMMAD NADEEM and others‑‑‑Respondents

First Rent Appeal No.77 of 2000, decided on 26th January, 2001.

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

‑‑‑‑S. 16(2)‑‑‑Ejectment of tenant‑‑‑Defence, striking off‑‑‑Tenant had deliberately disregarded the order of the Rent Controller, and there was a wilful default on his part‑‑‑Effect‑‑‑Where the tenant had not been able to substantiate his plea that he had complied with the order of the Rent Controller regarding deposit of rent, Rent Controller had rightly struck off his defence.

Athar Ali Jafri v. Sh. Akbar Amin 1995 CLC 115; Asadullah khan v. Abdul Karim 1995 CLC 1889; Ali Ahmed v. Dr. Akhtar Ali 1996 ('LC 1312; Mst. Ghulam Bibi and others v. Abdul Hameed and others 2000 MLD 245 and Noor Muhammad and another v. Mehdi PLD 1991 SC 711 distinguished.

S. Bahadur Ali Shah for Appellant.

Ghulam Hassan for Respondents.

Date of hearing : 15th January, 2001.

2001 C L C 1273

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

HAFEEZ‑UR‑REHMAN‑‑‑Petitioner

versus

Mst. NAJMA BANO and others‑‑‑Respondents

Constitutional Petition No. 8‑1148 of 1999, decided on 11th January, 2001.

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintenance allowance, fixation of‑‑‑Concurrent findings of fact by the Courts below‑‑‑Husband had not taken the plea of his weak financial position‑‑‑Family Court decreed the suit and Lower Appellate Court maintained the same‑‑‑Validity‑‑‑Both the Courts below had properly evaluated the evidence produced by the parties and had given valid reasons in their conclusions‑‑‑Judgment of Family Court was neither arbitrary/perverse, nor suffered from any jurisdictional error‑‑‑High Court declined to interfere with such judgment by exercising extraordinary powers under Art. 199 of the Constitution which could be exercised only in exceptional cases‑‑‑Amount of maintenance worked out by the Family Court being reasonable, judgments of both the Courts below were maintained‑‑‑Constitutional petition was dismissed in circumstances.

PLD 1961 Pesh. 66; 1991 CLC 739; 1987 SCMR 670; PLD 1985 Azad J&K 212; AIR 1929 All. 236 and 1995 CLC 327 distinguished.

1997 MLD 2655; 1999 SCMR 2331; PLD 1991 SC 543 and 1998 SCMR 457 ref.

(b) Islamic Law‑‑‑

‑‑‑‑Maintenance of children‑‑‑Father is bound to maintain his sons and daughters until sons attain the age of puberty and daughters are married.

Ghulam Muhammad Khan Durrani for Petitioner.

Shaikh Fazal Din for Respondents.

Date of hearing: 11th January, 2001.

2001 C L C 1280

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

Hafiz MUHAMMAD ISMAIL and others‑‑‑Petitioners

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑656 of 1999, decided on 27th February, 2001.

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

‑‑‑‑S. 17‑‑‑Acquisition of land‑‑‑Urgency‑‑‑Provisions of S.17, Land Acquisition Act, 1894‑‑‑Applicability‑‑‑Where after applying provisions of S.17 of Land Acquisition Act, 1894, neither possession of the suit ­land was taken by the Authorities, nor boundaries had been prepared or the land was surveyed, no urgency was shown in the proceedings‑‑­Provisions of S.17, Land Acquisition .Act, 1894 were not applicable in circumstances.

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

‑‑‑‑Ss. 4, 6, 17(1) & 48(1)‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Acquisition of land‑‑‑Initiation of acquisition proceedings after withdrawal of earlier notice‑‑‑Failure to issue fresh notice qua acquisition proceedings regarding the same land‑‑‑Disputed land was acquired in year 1994, and possession on papers only was said to have been taken over by the Authorities‑ ‑‑Compensation had not been paid to the owners‑‑‑Neither any progress had been made at the site, nor any action had been taken towards the preparation of alleged "tongs‑donkey cart stand" and "fruit and vegetable market"‑‑‑Effect‑‑‑Proper course, after withdrawal of notification for the Authorities was to initiate fresh' proceedings under the Land Acquisition Act, 1894‑‑‑Where the same had not been done, the order passed by the Authorities without issuing notice and without hearing the parties, was fanciful and mala fide‑‑‑Order passed by the Authorities was set aside but High Court did not debar the Authorities from initiating the proceedings afresh in accordance with the provisions of law, it the land in question was required by the Authorities in the larger interest of public.

PLD 1992 FSC 398, Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others 1991 SCMR 2180; Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCMR 2193; Abdul Rouf and others v. Abdul Hamid Khan and others PLD 1965 SC 671; Malik Salahuddin and others v. Collector, Land Acquisition, Peshawar and 3 others 1999 CLC 776 and The State v. Ziaur‑Rehman and others. PLD 1973 SC 49 ref.

(c) Discretion‑‑‑

‑‑‑‑ Exercise of discretion by Administrative Officers‑‑‑Government officials cannot be allowed to exercise coloured and unfettered powers to proceed with the matter outside the four corners of statute‑‑‑Officers have to exercise discretion honestly, reasonably and not arbitrarily.

M.A. Rasheed for Petitioners.

Parya Ram for Respondent No.5.

Abdul Sattar Soomro on behalf of A.A.‑G. for Respondents.

Date of hearing: 24th January, 2001.

2001 C L C 1312

[Karachi]

Before S. Ahmed Sarwana and Anwar Zaheer Jamali, JJ

Haji HAROON MANDRAH and another‑‑‑Petitioners

versus

ABDUL RAHIM and others‑‑‑Respondents

Constitutional Petition No.1021 of 1997 and Miscellaneous Application No. 1096 of 2001, decided on 1st March, 2001.

(a) Karachi Building and Town Planning Regulation, 1979‑‑‑

‑‑‑‑Regln. 24‑‑‑Regularizing deviation in approved building plan‑‑‑Scope‑‑­Power to regularize is intended and designed to be exercised when irregularity is of the nature, which does not change the complexion or character of the original construction.

Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Courts do not come to the rescue of a person who has committed a wrong or violated any law.

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

‑‑‑‑S. 7‑A‑‑‑Contract Act (IX of 1872), S.23‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Removal of unauthorized construction‑‑‑Maxim "Caveat emptor"‑‑‑Applicability‑‑‑Builders had constructed three floors in total violation of the approved building plan, Karachi Building and Town Planning Regulation, 1979 and Sindh Buildings Control Ordinance, 1979‑‑­Authorities passed an order for removal of such unauthorized construction and the order was upheld by the Court‑‑‑Occupants of the building filed application as intervenors and claimed to be the bona fide purchasers of the flats constructed on the disputed floors‑‑‑Validity‑‑‑Under the principle of caveat emptor it was the duty of occupants to have verified the title of the builder before purchasing and occupying the premises‑‑‑Builder, in the present case, had no title and could not transfer any title in respect of the flats on the disputed floors to any person and sale agreement in respect of the flats on the disputed floors was void under S.23 of Contract Act, 1872, being violative of the provisions of Sindh Buildings Control Ordinance, 1979‑‑­Occupants had no enforceable right or title in the premises purchased by them on the disputed floors‑‑‑Occupants should have asked the builder to file application for regularization of the building plan before buying the flats or while the Constitutional petition was pending and should have mentioned this fact when they filed the application under S.12(2), C.P.C. but they did not do so‑‑‑High Court declined to grant the same relief which had already been denied in earlier application‑‑‑Application was dismissed in circumstances.

Muhammad Saleem v. Administrator, K.M.C. 2000 SCMR 1748 and Muhammad Usman v. K.B.C.A. 2000 CLC 925 ref.

(d) Counsel and client‑‑‑

‑‑‑‑ Negligence of counsel‑‑‑Remedy‑‑‑Where the clients had suffered loss due to the negligence of their counsel the remedy for the loss suffered by them was against him.

Bashir Ahmed v. Government of Punjab and others 1985 SCMR 333 ref.

(e) Administration of justice‑‑‑

‑‑‑‑ Violation of law‑‑‑Where person violating the law is brought before the Court, he has to undergo the process of law and face the consequences in accordance with law‑‑‑If the violator is found or proved guilty of violation, such person must not be allowed to delay or frustrate implementation of Court orders and judgments‑‑‑Where violation of law is overlooked or permitted unchecked, the same would disturb the entire equilibrium of society, create law and order situation resulting in total anarchy in the country and the same cannot be allowed under any circumstances.

(f) Canons of professional conduct and etiquette of Advocate‑‑‑

‑‑‑‑Duty of Advocates‑‑‑Advocates are officers of the Court and their duty to the Court has precedence over their duty to the client‑‑‑Duty of counsel is to research the relevant law thoroughly and advise their clients honestly‑‑‑When a counsel signs, files or submits to the Court any application it is assumed that the application is not being presented for any improper purpose, such as to harass or to cause unnecessary delay, that the legal contentions therein are warranted by existing law and practice‑‑‑Where a counsel succumbs to temptation of money offered by a client and .takes up a brief without ascertaining true facts and researching the law such counsel would be deemed to be a party to vexatious claim and his duty to the Court would be subordinated to his client.

Jalil Ahmed and others v. Muhammad Ishaq and others PLD 1972 Kar. 341; Muhammad. Yaseen Khan v. Azad Government of Jammu and Kashmir 1991 MLD 2295; Muhammad Siddiq v. Mst. Ruqaya Khanum PLD 2001 Kar. 60 and Muhammad Dawood Khan v. Elyas Ameen PLD 2001 Kar. 20 ref.

(g) Counsel and Client----

‑‑‑‑Mala fide and vexatious proceedings‑‑‑Effect‑‑‑Where the counsel had not advised his clients and had filed such proceedings, such application was dismissed by High Court with costs to be paid by the applicants and the counsel equally.

Ashiq Raza for Applicants.

Ali Bin Adam Jafri for Respondent No.5.

2001 C L C 1328

[Karachi]

Before Zahid Kurban Alavi, J

ABDUL FATEH BABAR SANI‑‑‑Petitioner

versus

Mst. NAUREEN and others‑‑‑Respondents

Constitutional Petition No.S‑355 and Miscellaneous Application No.611 of 2000, decided on 15th February, 2001.

(a) Marriage‑‑‑

‑‑‑‑ Husband, duties of‑‑‑Living in foreign country‑‑‑Where a lady gets married and agrees to live with her husband in a foreign country in foreign environment, she forsakes a set social and cultural atmosphere to adjust in the new environment which requires a lot of efforts‑‑‑Total support of the husband in that respect is necessary and he must help her in her adjustment‑‑­Husband has to be patient, gentle and understanding‑‑‑Rashness and impatience generally lead to disputes which ultimately end up in the break‑up of the marriage‑‑‑Penalty for such a break has to be paid by the child.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dissolution of marriage‑‑‑Evidence of an attorney in a matrimonial matter‑‑‑Credibility‑‑‑Scope‑‑‑Suit for dissolution of marriage was filed by wife whereas the husband had filed suit for restitution of conjugal rights‑‑­Husband contested both the suits through his attorney‑‑‑Family Court dissolved the marriage on the basis of Khula' while the suit for restitution of marriage was dismissed‑‑‑Validity‑‑‑Any statement made reflecting the emotional and physical relationship of the husband and wife by an attorney would be a hearsay and was not acceptable‑‑‑Such pleadings and evidence ,should not be allowed to be signed by an attorney on behalf of , the husband/wife‑‑‑Apparently in cases of such nature husband, in order to punish the wife for seeking an anullment of marriage, authorizes a person to conduct proceedings‑‑‑High Court deprecated such practice‑‑‑Attorney should be allowed only in very rare and extraordinary circumstances and that too after sufficient reason had been given by the attorney for signing or verifying the pleadings or giving evidence‑‑‑Except for verifying certain documents, under no circumstances could an attorney state even on oath as to what' transpired between the husband and wife which led ultimately one of them coming to the Court‑‑‑Judgment and decree of Family Court was not interfered with‑‑‑Petition was disposed of accordingly.

Nadeem Azhar Siddiqui for Petitioner.

Khalid Lateef for Respondent No. 1.

2001 C L C 1339

[Karachi]

Before Zia Perwez,.J

Messrs AZEEM & SONS through Partner‑‑‑Plaintiff

versus

MINISTRY OF DEFENCE and 3 others‑‑‑Defendants

Civil Suit No.312 and Civil Miscellaneous Applications.Nos.3117 and 4063 of 1999, decided on 8th March, 2001.

(a) Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1968)‑‑

‑‑‑‑S. 10‑‑‑Bar jurisdiction of Civil Court‑‑‑Scope‑‑‑Where mala fide was attributed with regard to enforcement of the agreed terms of contract pertaining to the adjudication of the dispute under the terms of contract and determination of compensation no bar under the provisions of S.10 of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1968, was imposed.

Zafar‑ul‑Ahsan v., Republic of Pakistan PLD 1960 SC (Pak.) 113; Ahmed Din v. Abdullah Bhai and others PLD 1962 (W.P.) Kar. 663 and Muhammad Hussain v. District Council, Muzaffargarh through Chairman and another 1987 CLC 1098 ref.

(b) Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1968)‑‑‑

‑‑‑‑S. 10‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Plaint, rejection of‑‑‑Bar of jurisdiction of Civil Court‑‑‑Possession of suit property was recovered by the Authorities under the provisions of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1968‑‑‑Plaintiff assailed such recovery of possession before Civil Court‑‑­Authorities filed application under O. VII, R.11, C.P.C. on the ground that the jurisdiction of Civil Court was barred under S.10 of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1968‑‑‑Validity‑‑­Where conclusion was arrived at that the suit was barred by law plaint could be rejected under O.VII, R.11, C.P.C.‑‑‑Where the suit was for determination of the rights and liabilities of the parties under the contract not covered under the provisions of Ss. 10 & 11 of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1968, application for rejection of plaint was not sustainable.

Burma Eastern Limited v. Burma Eastern Employees' Union PLD 1967 Dacca 190 distinguished.

Nadeem Azhar for Plaintiff. Dastagir Ghazi for Defendants Nos. 1, 2 and 3.

Date of hearing: 20th February, 2001

2001 C L C 1352

[Karachi]

Before Zia Perwez, J

Messrs PAKISTAN NATIONAL SHIPPING CORPORATION---Applicant

versus

Messrs ADAMJEE INSURANCE COMPANY LTD. ---Respondent

Revision Application Na.149 of 1998 and Civil Miscellaneous Application No.275 of 2000, decided on 12th February, 2001.

(a) Review---

----Limitation---Time consumed for obtaining certified copies can be excluded in case of review.

Jawed Singh v. Ala Singh AIR 1938 Lah. 295; Wali Muhammad v. Wali Muhammad PLD 1974 SC 1956; Dada Steel Mills v. Government of Balochistan 1986 SCMR 1602; Nadir Khan v. Liaquat Ali 1999 SCMR 1132; Mst. Zojan v. Muhammad Hasan 1999 MLD 2096 and Ghulam Nabi v. Rashid PLD 2000 SC 63 ref.

(b) Provincial Small Cause Courts Act (IX of 1887)---

----Ss. 24 & 25---Appeal---Revision---Judgment passed by Small Cause Court---Remedy against such judgment---Jurisdiction of District Judge--­Scope---Where cases did not fall under any of the specified cases under S.24 of Provincial Small Cause Courts Act, 1887, such cases were not subject to appeal before the District Judge but attracted the provisions of S.25 of Provincial Small Cause Courts Act, 1887---Review application under S.25 of Provincial Small Cause Courts Act, 1887, before High Court was the only remedy available in circumstances.

(c) Provincial Small Cause Courts Act (IX of 1887)---

----S. 25---Revision---Judgment passed by Small Cause Court---Review under S.114, C.P.C. was filed by the applicants against the judgment and decree of the Small Cause Court---Case of the applicants was not covered under .the provisions of S.24 of Provincial Small Cause Courts Act, 1887--­Validity---Revision before High Court under the provisions of S.25 of Provincial Small Cause Courts Act, 1887, was the proper remedy---Where the error of law was apparent on the face of record, the same called for indulgence by way of review to prevent injustice being done to the applicants by the Court---Revision application under S.25, Small Cause Courts Act, 1887 by the applicants was treated as appeal by Court and the same was dismissed---Such order by the Court was recalled and review application was allowed in circumstances.

M. Imtiaz Agha for Applicant. Jamil Khan for Respondent.

Date of hearing: 17th January, 2001.

2001 C L C 1363

[Karachi]

Before Sabihuddin Ahmed and Zahid Kurban Alavi, JJ

Messrs BAGHPOTEE SERVICES (PRIVATE) LTD. and others---Appellants

versus

Messrs ALLIED BANK OF PAKISTAN LTD. ---Respondent

First Appeals Nos.143 and 144 and Civil Miscellaneous Application No.3257 of 2000, decided on 30th January, 2001.

(a) Review--­

---- Defined.

Black's Law Dictionary, VIth Edn. ref.

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

---S. 27---"Review" and "recalling of order"---Distinction---Non-appearance of a party---Recalling of the order was passed on account of such non-appearance---Clear distinction between review of an earlier order and recalling order passed on account of non-appearance of a party exist---In review the merits of an earlier order are considered but in recalling the order only the cause of non-appearance is to be taken into consideration---Power, in case of review must be conferred by statute but in case of recalling the power stems from the principles of natural justice required to be read into every law---Review of order is excluded by S.27 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, but the recalling of order passed on account of' non-appearance of a party remains available to the Banking Court.

(c) Review---

---- Power to review must be expressly conferred by law as no question of any such implied power can possibly arise.

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

----S. .27--Restoration of application dismissed for non-appearance--­Banking Court, jurisdiction of---Application filed by the appellant was dismissed by Banking Court due to his non-appearance and the Court refused to restore the same because of bar contained in~S.27 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997--­Validity---Power to recall ex pane order Was altogether different power than one of review and the same emanated from a different source---Where the Banking Court decided the application on the question of jurisdiction without considering the merits i.e. sufficiency of the cause of non-appearance of the appellant, the provisions of S.27 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, were not applicable---Order passed by the Banking Court was set aside and the case was remanded for decision afresh---Appeal was allowed accordingly.

Muhammad Aslam Mirza v., Khursheed Begum PLD 1972 Lah. 603; Allied Bank of Pakistan v. Digital Radio Paging (Pvt.) Limited and others 2000 CLC 1153; Haji Fateh Muhammad v. Maula Bux and others PLD 1963 SC 311 and ~aji Khuda-e-Nazar v. Haji Abdul Bari 1997 SCMR 1986 ref.

M. Saleem Thepdawala for Appellants.

Asim Mansoor Khan for Respondent.

2001 C L C 1368

[Karachi]

Before Anwar Mansoor Khan, J.

SAYYED ENGINEERING---Plaintiff

versus

TRISTAR INDUSTRIES (PVT.) LTD. ---Defendant

Suit No.42 and Civil Miscellaneous Application No. 156 of 2000, decided on 10th April, 2001.

(a) Trade mark---

--"Notoriety"---Connotation---Word "notoriety" is nothing but to state of it being infamous or notorious.

(b) Trade Marks Act (V of 1940)---

----S. 10---Registration of trade mark---Word common to a trade ---Effect--­Word that has become common to trade cannot be claimed by any individual as his trade mark.

Formica Corporation v. Pakistan Formica Ltd. 1989 SCMR 361; COCA Co. of Canada Ltd. v. PEPSI of Canada Ltd. 59 RPC 127; Tapal Tea (Pvt.) Ltd. v. Lever Brothers (Pakistan) Ltd. 1997 MLD 1277 and Burberrys v. J.C. Cording & Co. Ltd. 26 RPC 693 ref.

(c) Trade Marks Act (V of 1940)---

----S. 10---Registration of trade mark---Honest and concurrent user---Effect-­Where the case is of concurrent use in respect of two contesting marks, any one of the marks cannot be isolated and one person cannot be allowed to use the same.

Formica Corporation v. Pakistan Formica Ltd. 1989 SCMR 361; COCA Co. of Canada Ltd. v. PEPSI of Canada Ltd. 59 RPC 127; Tapal Tea (Pvt.) Ltd. v. Lever Brothers (Pakistan) Ltd. 1997 MLD 1277 and Burberrys v. J.C. Cording & Co. Ltd. 26 RPC 693 ref.

(d) Trade Marks Act (V of 1940)---

----S. 14---"Passing off"---Connotation---Factors to be proved---When people use goodwill of companies' businesses and their products that they have worked their way to the top in order to sell their wares, these reputable establishments are deprived of their rightful benefits---People use trade marks or marks similar to the ones used by those well-known companies, thereby confusing the customer and inducing him to buy their wares---Such acts attract the doctrine of 'passing off'--- Ingredients that have to be established in a successful action of passing off stated.

When people use the goodwill of companies, businesses and their products that they have Worked their way to the top in order to sell their wares these reputable establishments are deprived of their rightful benefits. Several people use the trade marks or marks similar to the ones used by those well-known companies, thereby confusing the customer and inducing him to buy their wares. The acts are against the doctrine of passing off. The ingredients that have to be established in a successful action of passing off are:

(a) There is a goodwill or reputation to the goods or services supplied by the claimant in the mind of the public to the extent that the identifying image used by the claimant is recognised by the public as distinctive of the claimant's goods or services.

(b) There is a misrepresentation by the defendant leading, or likely to lead the public to believe that the goods that are being offered by the defendant are those of the claimant, whether or not that misrepresentation is intentional.

(c) There is some likelihood of damage being suffered by the plaintiff because of misrepresentation.

(e) Trade Marks Act (V of 1940)---

----Ss. 10 & 14---Proprietary rights---Proof of---Exclusive prior use of mark was sufficient to cause proprietary rights to be created.

Tabaq Restaurant v. Tabaq Restaurant 1987 SCMR 1090 ref.

(f) Trade Marks Act (V of 1940)

----Ss. 10 & 14---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2--­Interim injunction, grant of ---Proprietary rights, infringement of--­Unregistered trade mark---Dispute was with regard to use of word 'Crystal' on ball pens manufactured by the parties---Plaintiff claimed to be the prior user of the word 'Crystal' on his product---Contention of the defendant was that the were 'Crystal' only described the pen and the same was common to trade ---Validity ---Continuous use of a mark over a length of time did not characterise the word as used by the user, and was in the mind of the public as identify,, them that the product was that of the person using the same regularly as such it was misconceived that because the word was used on a transparent pen, it described the pen and because of that reason all could use the word---Such act would amount to infringing upon the right and goodwill created by the user of the word---Subsequent user, in such a case, would be trying to cash upon the reputation attached to the product of the manufacturer using the word and the same would amount to misrepresentation and there was likelihood of damage being suffered by such use to the previous user--­Where, notwithstanding the transparency, the look, the design and/or other marked features of the pen, which might be descriptively similar, use of the word 'Crystal' could disclose no other intention of the defendants except to pass off their goods as the goods of the plaintiff---Even if the defendants were manufacturing a transparent/clear ball point pen, it could not be said that the same would be descriptive of the pen, as the plaintiff over the years started use of the word 'Crystal' and the plaintiff over the years had acquired, by advertisements and otherwise reputation, goodwill and the said word therefore, would be deemed to be in the mind of the public, as a product of the plaintiff---Defendant, in the present case, would not be entitled to mark their product by describing the same as 'Crystal'--- Plaintiff had made out a strong prima facie case---By the use of word 'Crystal' the defendants had committed an actionable wrong of passing off injuring substantially the reputation and goodwill of the genuine user of the word 'Crystal' and the same would amount to misrepresenting their product as the product of the plaintiff and would also, therefore, amount to damaging their goodwill---Interim injunction was granted in circumstances.

Zakauddin v. Muhammad Zahid and 2 others PLD 1993 Kar. 766; T.G. Balaji Chettiar v. Hindustan Lever Ltd., Bombay AIR 1967 Mad. 148; The Sanitas Company Limited v. Condy 4 RPC 530; Harvard's Law Review, Vol. 68 (1954-55); Century Traders v. Roshan Lal Duggar & Co. and others AIR 1978 Delhi 250; Messrs K.S. Sulemanji Esmailji & Sons v. Messrs M Sulemanji & Company Ltd. 1986 CLC 775; Messrs Manoj Plastic, India v. Messrs Bhola Plastic Industries AIR 1984 Delhi 441; Jamia Industries Ltd. v. Caltex Oil (Pak.) Ltd. and another PLD 1984 SC 8; Guide to The Trade Marks Laws and Procedure in Pakistan, a Publication of Government of Pakistan: Erven Warnink BV and others v. J. Townend & Sons (Hull) Ltd. and others (1979) 2 All ER 927 ref.

(g) Trade Marks Act (V of 1940)---

----S. 6---Proprietor of trade mark---Descriptive word, use of---Effect Under the provisions of S.6(1) of Trade Marks Act, 1940, where it could bye established that the proprietor of the mark, was using such words that were descriptive in nature for the period of time which eventually could be equated to a specified product, such might be at times treated as a mark of that proprietor.

Cases and Material on Trade Marks and Allied Laws, Vo.1, edited by K.L. Aggarwal and Ajay Sahni, 1997 Edn., p.472; Parker Knoll Ltd, v. Knoll International Ltd. (1926) RPC 265 and Brinsmead v. Brinsmead (1913) 30 RPC 493 ref.

(h) Trade Marks Act (V of 1940)AW

S. 10(2)—Trade mar- mark, registration of--- Doctrine of passing off--­ S. of word already in use of plaintiff since long---Effect-- Such would amount to misleading the purchasers into thinking that the defendant's firm had intimate connection with the plaintiff and by misrepresentation of such use and connection with the plaintiff, was to constitute the tort of unfair trading forming part of passing off.

B.K. Engineering Co. v. Ushi Enterprise AIR 1985 Delhi 210; Bollinger v. Costa Brava Wine Co. Ltd. (1961) 1 All ER 561; Vine Products Ltd. v. McKenzie & Co. Ltd. (1969) RPC 1 and Walker (John) & Sons Ltd. v. Henry Ost & Co. Ltd. (1970) 2 All ER 106 ref.

(i) Trade Marks Act (V of 1940)---

----S. 14---Proprietary rights, infringement of---Passing off---Proof---Test to be applied in matters of passing off is as to whether a man of average intelligence and of imperfect recollection can be confused.

Corn Products v. Shangrila Food Products AIR 1960 SC 140 and Amritdhara Pharmacy v. Stya Deo AIR 1963 SC 449 ref.

Khawaja Mansoor for Plaintiff.

Abid Zuberi alongwith Asghar N. Farooqui for Defendant.

Dates of hearing: 7th, 9th, 21st and 24th February, 2001.

2001 C L C 1486

[Karachi]

Before Faiz Muhammad Qureshi, J

Messrs S.M. AYUB & SONS‑‑‑Appellant

versus

ABDUL JABBAR QURESHI and another‑‑‑Respondents

First Rent Appeal No‑687 of 1998, decided on 25th January, 2001.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑

‑‑‑‑S. 16(1)(2)‑‑‑Failure to comply with the tantative rent order by tenant‑‑­Striking off defence of tenant‑‑‑Defence of tenant was struck off by Rent Controller on the ground that tenant had failed to comply with tentative rent order‑‑‑Order was vague as Rent Controller before passing the said order did not take into consideration the report of Nazir of the Court with regard to deposit of rent in the Court‑‑‑Rent Controller, in tentative rent order had neither mentioned amount of arrears nor the month from which future rent was to be deposited, was specified‑‑‑Tenant, even. if had committed any default in depositing rent according to tentative rent order, that default was only a technical one and not wilful‑‑‑Defence of tenant could not be struck off on such defective order by the Rent Controller‑‑‑Order was set aside and case was remanded to Rent Controller to decide the same on merits and according to law.

PLD 1982 Lah. 519; 1996 CLC 1312; 1984 CLC 68 and PLD 19.78 Kar. 145 ref.

Zahid Marghoob for Appellant.

Abdul Aziz Khan for Respondents.

Date of hearing: 18th January, 2001.

2001 C L C 1494

[Karachi]

Before Zia Pervez, J

S. RAZA QULI‑‑‑Applicant

versus

Miss HYDERI Qh1LI and 13 others‑‑‑Respondents

Civil Revision Application No.2 of 2000, decided on 19th January, 2001.

Civil Procedure Code (V of.1908)‑‑

‑‑‑‑O. VII, R. 10 & S.115‑‑‑Return of plaint‑‑‑Trial without jurisdiction‑‑­Despite the fact that Trial Court had reached the conclusion that the Court had no jurisdiction, the plaint was not returned to the plaintiff rather the suit was decreed and the judgment was upheld by Lower Appellate Court‑‑­Validity‑‑‑Where at any stage of the suit, the Trial Court had arrived at a decision that suit should have been instituted in any other Court having jurisdiction, the mandatory procedure proceeded under O.VII, R.10, C.P.C. was attracted‑‑‑Duty of Trial Court, under tile circumstances, was to return presentation to the proper Court‑‑‑Course prescribed by law had neither been followed by Trial Court nor by Appellate Court‑ ‑‑Appellate Court had acted and exercised jurisdiction beyond what Was vested by law in it and had acted with material irregularity‑‑‑Judgment and decree passed by Lower Appellate Court was set aside and the plaint was returned for presentation before the Court of competent jurisdiction‑‑‑Revision was allowed by High Court accordingly.

Elahi Bux v. Noor Muhammad PLD 1985 SC 41; Muhammad Ali v. Muhammad Shafi PLD 1996 SC 292 and Twaha v. M.V. Asian Queen­ PLD‑1982 Kar. 749 ref.

Mirza Saeed Baig for Applicant.

Hyder Raza Naqvi for Respondents Nos. 1, 3 and 14.

Dates of hearing: 20th to 22nd November, 2000.

2001.C L C 1530

[Karachi]

Before Zia Perwez, J

MUHAMMAD NAQI‑‑‑Applicant

versus

Malik LAL MUHAMMAD IQBAL‑‑‑Respondent

Revision Application No.64 of 1996, decided on 15th February, 2001.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 45‑‑‑Document, proof of‑‑‑Witnesses are only witnesses to signatures of the executing parties‑‑‑Where both the executants admit their respective signatures on the document further proof is not necessary.

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

‑‑‑‑Ss. 6, 115 & O.VII, R.2‑‑‑Mesne profits, recovery of‑‑‑Concurrent findings of fact by Courts below‑‑‑Pecuniary jurisdiction of Civil Court. Suit for mesne profits was decreed by Trial Court and the judgment and decree was upheld by Lower Appellate Court‑‑‑Contention was that Trial Court had exceeded its pecuniary jurisdiction as the case was beyond the limits of the Court‑‑‑Validity‑‑‑Original suit was instituted in the Court which was competent to entertain the plaint at the time of filing of suit‑‑­Amount of mesne profits was neither ascertained nor determined and had increased with the efflux of time which was only a matter of calculation to arrive at the final figure‑‑‑Both the Courts below had dealt with the facts of the case as well as the case‑law applicable in detail and no material irregularity could be pointed out‑‑‑Concurrent findings of fact by the Courts below were not interfered with by High Court in exercise of jurisdiction under S.115, C.P.C.‑‑‑Judgments and decrees of both the Courts below had no error of jurisdiction nor any material irregularity under the provisions of S.115, C.P.C.‑‑‑Revision was dismissed in circumstances.

S. Zafar Ahmed v. Abdul Khaliq PLD 1964 Kar. 386; Muhammad Anwar Khan v. Additional District Judge, Rawalpindi PLD 1978 Lah. 716 and Mirza Daud Baig v. Additional District Judge, Gujranwala 1987 SCMR 1161 distinguished.

Abdul Khaliq v. Muhammad Asghar Khan PLD 1996 Lah. 367; Gulzar Hussain v. Abdur Rehman and another 1985 SCMR 301; Walayat Khan v. Muhammad Sadiq PLD 199? Lah. 90; Abdul Hamid alias Md. Abdul Hamid v. Dr Sadeque Ali Ahmed PLD 1969 Dacca 357; Mafizuddin Khan v. Jadu Pramanik PLD 1960 Dacca 103; Farman Ali Dewan v. Mansu Ali PLD 1962 Dacca 214; Mst. Tabassam Bibi v. Abdur Rashid Khan 1999 CLC 1216; Sheikh Muhammad Bashir Ali v. Sufi Ghulam Mohi‑ud‑Din 1996 SCMR 813; Anwar Zaman v. Bahadur Sher 2000 SCMR 431; Abdul Khaliq v. Rashid Ahmed 1999 MLD 2156; Municipal Committee, Bannu v. Muhammad Iqbal Khan 1998 CLC 1714: Kanwal Nain v. Fateh Khan PLD 1993 SC 53 and Haji Zareen Khan v. Mureed Khan 1998 CLC 1794 ref.

A. Iqbal Qadri for Applicant.

Shaikh Muhammad Usman for Respondent:

Date of hearing: 15th November, 2000.

2001 C L C 1541

[Karachi]

Before Zia Perwez, J

Messrs AZEEM TEXTILE AND GARMENTS INDUSTRIES (PVT.) LTD. through

Chief Executive ‑‑‑Plaintiff

verses

Messrs SEASON & STYLE MODEHANDLES G.M.B.H. through Buyor Claudia Kampmann‑‑‑Defendant

Suit No. 1439 of 1999, decided on 23rd February, 2001.E

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 3‑‑‑Suit for recovery of money‑‑‑Limitation.‑‑‑Dispute was regarding recovery of price of goods shipped by the plaintiff to the defendant in foreign country‑‑‑Suit was filed after delay of six years‑‑‑Effect‑‑‑Where the suit for recovery of the price of the goods shipped and sold was filed after over six years of shipment of the consignments, the same was hit by S.3 of Limitation

Act, 1908‑‑‑Suit was dismissed in circumstances.

East & West Steamship Co. v. Qeensland Insurance Co. PLD 1963 SC 663 ref.

Sher Ali Rizvi for Plaintiff.

Nemo for Defendant.

Date of hearing: 23rd February, 2001.

2001 C L C 1551

[Karachi]

Before Anwar Mansoor Khan, J

Messrs PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT CORPORATION LIMITED‑‑‑Plaintiff

versus

SULTAN AHMAD and 3 others‑‑‑Respondents

Suit No.B‑78 of 2000, decided on 7th November, 2000.

(a) Islamic Jurisprudence‑‑‑

‑‑‑‑Riba‑‑‑Any increase in actual debt payable amounts to Riba and the same is against the Qur'anic Injunctions.

Dr. M. Aslam Khaki and others v. Syed Muhammad Hashim and others PLD 2000 SC 225 rel.

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

‑‑‑‑S. 9‑‑‑Recovery of Bank loan‑‑‑Rebate on prompt payment within due dates‑‑‑Rebate had already been included for the purpose of arriving at the purchase price and in the event of delay in payment the said amount of rebate would be charged but, if the payments were made within due dates the interest amount would be reduced‑‑‑Validity‑‑‑Such rebate was nothing but mark up on the marked‑up price which was not allowable.

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

‑‑‑‑S. 9‑‑‑Recovery of Bank loan‑‑‑Penalty for non‑utilization of facility‑‑­Agreement was prepared by plaintiff and the same had been delayed‑‑­Effect‑‑‑Where the delay had not been caused by the defendants, the defendants could not be penalized for an act not done by them‑‑‑Penalty for non‑utilization was not allowed in circumstances.

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

‑‑‑‑S. 9‑‑‑Recovery of Bank loan‑‑‑Central Excise Duty, court‑fee and legal expenses‑‑‑Inclusion of such charges in recovery suit‑‑‑Court‑fee and legal expenses were not allowed as the same would be included in the costs awarded to the plaintiff while Central Excise Duty was allowed.

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

‑‑‑‑S. 9‑‑‑Recovery of Bank loan‑‑‑Liquidated damages‑‑‑Where such damages were not proved by the plaintiff the same were not allowed.

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

‑‑‑‑S. 9‑‑‑Recovery of Bank loan‑‑‑Ex parte proceedings‑‑‑Defendants were proceeded ex parte‑‑‑Statement of accounts verified on oath was filed by plaintiff‑‑‑Suit was decreed against the defendants jointly and/or severally with mark‑up thereon‑‑‑Mark‑up would not be compounded in any manner whatsoever‑‑‑Suit was decreed accordingly.

Miss Sofia Saeed for Plaintiff.

2001 C L C 1559

[Karachi High Court]

Before S. Ahmed Sarwana and Ghulam Rabbani, JJ

NAGINA BAKERY‑‑‑Petitioner

versus

SUI SOUTHERN GAS LIMITED and 3 others‑‑‑Respondents

Constitutional Petition No. D‑310 and Miscellaneous Application No. 1145 of 2000, decided on 8th August, 2000.

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

---Art. 199--- Service Tribunals Act (LXX of 1973), S.2-A---Penal Code (XLV of 1860), S.21----- Constitutional petition ----- Maintainability-----Civil servant-----Employees of Sui Southern Gas Company Ltd. ----- Status of ------Sui Southern Gas Company is public limited and incorporated under the Companies Act, 1913, and is quoted on Stock Exchanges‑‑‑Although the majority shares in the Company are held by the President of Pakistan, yet the same does not make the Company a department of Government of Pakistan‑‑­Insertion of S.2‑A in Service Tribunals Act, 1973, does not in any way make employees of the Company civil servants or public functionaries to make them amenable to the Constitutional jurisdiction of High Court‑‑­Constitutional petition was not maintainable against the employees of Sui Southern Gas Company in circumstances.

Badruddin H. Mawani v. Messrs Commerce Bank Ltd. PLD 1975 Kar. 182 and Darab Shah B. Dalal v. Muslim Commercial Bank PLD 1977 SC 457 ref.

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

‑‑‑‑Art. 199‑‑‑Expression 'performing functions in connection with the affairs of Federation or Province'‑‑‑Scope‑‑‑Transmitting supply or sale of natural gas‑‑‑Company which was carrying on such business, could not be said to be performing functions in connection with the affairs of the Federation or the Province.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Local authority‑‑­Employees of Sui Southern Gas Company do not have status of employees of local authority‑‑‑Company is a public limited company quoted on stock exchange and has not been entrusted by the Government with the control or management of a municipal or local fund as such the Company cannot be regarded as a local authority against which writ can be issued under Art. 199 of the Constitution.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Contractual obligation, enforcement of‑‑‑Scope‑‑Such obligation cannot be enforced by filing petition under Art. 199 of the Constitution.

M. Muzaffar‑ud‑Din Industries Ltd. v. Chief Settlement and Rehabilitation Commissioner 1968 SCMR 1136 and Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector‑General of Police, Sindh PLD 1992 Kar. 283 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Filing of petition against legal or natural person‑‑‑Scope‑‑‑Where the petition was filed against designations and titles of officers of the Company who were not legal or natural persons, Constitutional petition was not maintainable.

Secretary, B & R Government of West Pakistan v. Fazal Ali Khan PLD 1971 Kar. 625 ref.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Mala fides ‑‑‑Impleading Government as party in Constitutional petition just to avoid office objection ‑‑‑Effect‑‑­Where no relief was sought against the Government and it was impleaded just to make the petition maintainable, High Court deprecated such act of the petitioner as the same was prima facie mala fide.

(g) Canons of Professional Conduct and Etiquette of Advocates‑‑‑

‑‑‑‑ Duty of Advocate towards Court and client‑‑‑Failure to prepare brief properly‑‑‑Effect‑‑‑Advocate is an officer of Court and is concerned in the proper administration of justice and owes an overriding duty to the Court, to the standards of his profession and to the public, to ensure that it is achieved‑‑‑Where Advocate has not prepared his brief properly and has not placed the relevant law before the Court, such counsel has failed in his duty by not maintaining the standards expected of an Advocate‑‑‑Where counsel does not come to the Court ready with the facts and law on the legal propositions, such lapse on his part would show disrespect to the standards of the profession, duty to the Court in the administration of justice and negligence of his duty to client‑‑‑Such counsel has not only committed breach of the Injunctions of Islam but has also committed breach of promise to his client.

Holy Qur'an: Surah 5, Al‑Maida, Ayat 1 ref.

(h) Counsel and client‑‑‑

‑‑‑‑ Counsel not preparing brief properly‑‑‑Remedy for client‑‑‑Counsel was duty‑bound to fulfil his obligation and undertaking of carrying out extensive research and argue the case to the best of his ability‑‑‑Where the counsel fails to fulfil his duty, such counsel not only violates the Canons of Professional Ethics but he is also guilty of professional misconduct and if his client suffers injury because of his negligence such counsel is liable for the loss or injury suffered by his client.

Halsbury's Laws of England, 4th Edn., Vo1.44 and Bashir Ahmed v. Government of Punjab 1985 SCMR 333 ref.

(i) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Counsel and client, relationship of‑‑Filing of vexatious petition‑‑‑Petition was not maintainable and the counsel had not advised his client properly‑‑‑Effect‑‑‑Where the petition was vexatious to the knowledge of the counsel, he should not have filed the same even if his client insisted on the same‑‑‑Counsel should never allow himself to be tempted by financial gains to commit a breach of his duty to the Court which has precedence over his duty to the client‑‑‑High Court dismissed the petition with costs to be paid by the counsel in circumstances.

Shoaib Shibli for Petitioner. Abdul Sattar Kazi for Respondents Nos. l to 3.

ORDER

S. AHMED SARWANA, J.‑‑‑The brief facts as available from the pleadings are that Nagina Bakery through its proprietor Muhammad Nasir (Petitioner), a consumer of Sui Southern Gas Company Limited (SSGC/Respondent No. 1) has filed this petition challenging the demand of Rs.1,74,826 made by SSGC. The facts giving rise to the petition as stated in the petition are that on 23‑5‑2000, some representatives of SSGC came to premises of the petitioner, took away his Gas meter for testing in the laboratory after replacing it with a new one. The following observations were made in the Testing Report dated 23‑5‑2000 relating to the Meter:

"Meter is physically checked and proved in presence of vig. rep. As the portion of upper case was found removed meter found the carbon in to valve/valve seal and chamber. It was observed that meter found slow. Meter found 50% should be bill charge from consumer. (sic)

On the basis of the report, the Chief Engineer of SSGC (respondent No.2) ordered that recovery be made accordingly. Consequently, SSGC by letter dated 14‑7‑2000 demanded Rs.1,74,826 as arrears and informed the petitioner that if this was not done, the said amount would be included in the following bill for the month of July, 2000. The petitioner requested the respondents to withdraw the aforesaid letter and demand but in vain. It is alleged that on 3‑8‑2000 some staff members of SSGC came to the petitioner's premises and threatened to disconnect his gas supply: consequently; the petitioner immediately filed the present Petition against (i) Sui Southern Gas Company Limited (SSGC) through Chief Manager as respondent No.1 (ii) The Chief Engineer, SSGC as respondent No.2. (iii' Deputy General Manager (Marketing and Billing), Sui Southern Gas Company as respondent No.3 and (iv) Government of Pakistan through Ministry of National Resources. Islamabad, as Respondent No.4, seeking the following relief:

"The petitioner, therefore, humbly prayed that demand of Rs‑1,74,826 as arrears by the respondents from the petitioner may kindly be declared illegal, mala fide, baseless, void ab initio, without justification, without lawful authority and without jurisdiction. Because the petitioner had paid all the previous bills issued by the respondents and the petitioner is not in arrears. And the respondent may kindly be restrained from receiving said amount and they may kindly also be restrained from disconnecting the gas supply of the petitioner due to non‑payment of said demanded amount. (sic)

1. On 4‑8‑2000, the Court issued pre‑admission Notice to respondents for 8‑8‑2000. Today, Mr. Abdul Sattar Kazi, Advocate filed power on behalf of respondents Nos. l to 3 and requested for time to file a counter­ affidavit/comments to challenge the maintainability of the petition. We asked Mr. Shoaib Shihli. learned Counsel for the Petitioner to satisfy the Court as to how the Constitution petition was maintainable. In reply, he submitted as follows:

(i) Sui Southern Gas Company Limited is owned and controlled by the Government of Pakistan and as such it is a department of the Government of Pakistan. Alternatively, , it is a local authority, and therefore, its working and conduct is amenable to the jurisdiction of the High Court under Article 199 of the Constitution.

(ii) Respondents Nos. l to 3 being employees of Sui Southern Gas Company are public officers/functionaries whose mala fide action is subject to correction by the High Court under its Constitutional Jurisdiction.

(iii) SSGC letter dated 14‑7‑2000 demanding arrears of Rs.1,74,826 is mala fide and liable to be set aside.

1. We asked Mr. Shibli to support his arguments with reference to the relevant provisions of law or by any reported judgment, he submitted that there was substantial law in support of his contentions and Mr., Kazi should be directed to file a counter‑affidavit or comments on the petition whereafter he would submit the relevant law. We informed him that on 4‑8‑2000 on his request Pre‑admission Notice was issued to the respondents for 8‑8‑2000 and consequently the matter was fixed for Katcha Peshi today and he should satisfy the Court as to how the Constitution petition was maintainable as apparently there are several judgments of the superior Courts against the propositions he had advanced. He did not place any law in support of his contentions and asked the Court to decide the petition on the basis of the legal contentions/arguments advanced by him.

2. We have researched the law ourselves and have found several judgments of the superior Courts relating to the issues raised by Mr. Shibli, the learned Counsel for the petitioner, some of which are as follows:‑‑

(i) The contention of Mr. Shibli that SSGC is owned and controlled by the Government of Pakistan and as such, it is a department of the Government is incorrect. Admittedly. SSGC is a public limited A company incorporated under the Companies Act, 1913 (now the Companies Ordinance, 1984) and is quoted on the Karachi, Lahore and Islamabad Stock Exchanges. We confronted Mr. Shibli with a copy of the Karachi Stock Exchange Report published in the daily Dawn of R‑8‑2000 which quoted the price of shares of SSGC at Rs.14.80 per share. It is obvious that the shares of SSGC are freely sold and purchased at the various Stock Exchanges of Pakistan. In these circumstances, we fail to understand how Mr. Shibli can argument that SSGC is a department of the Government of Pakistan. On further research we found that the President of Pakistan owns majority shares in SSGC. Even the fact that the majority shares in SSGC are held by the President of Pakistan does not make it a B Department of the Government of Pakistan. In this connection, we may mention here that after nationalization of Pakistani Banks in 1974, the entire share capital of all the banks vested in the Government of Pakistan; nevertheless, in the case of Badruddin H. Mawani v. Messrs Commerce Bank Ltd. PLD. 1975 Karachi 182 wherein a question arose whether the banks after nationalization under the Banks Nationalization Act, 1974, continued to exist as legal persons, the Honorable High Court of Sindh, after considering the provisions of the Banks Nationalization Act, 1974, observed that the banks continued to exist after nationalization as legal entities independent of the Federal Government though they might be subject to the directions of the Federal Government directly or indirectly through the Banking Council. Again in the case of Darab Shah B. Dalal v. Muslim Commercial Bank, PLD 1977 SC 457, the Honourable Supreme Court of Pakistan held that after the Banks Nationalization Act, 1974, the corporate status of the banks was not affected and their rights and obligations continued to subsist as before. Therefore, SSGC which is a public limited company cannot by any stretch of imagination be regarded as a department of the Government.

(ii) Under Article 199 of the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, on the application of an aggrieved party may make an order declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or local authority has been done or taken without lawful authority. 1t is not the function of the Government of Pakistan to transmit and supply/sell gas to the public. , SSGC, a company incorporated under the Companies Ordinance, 1984, which is carrying on the business of transmission and supply/sale of natural gas cannot by any logic be said to be performing functions in connection with the affairs of the Federation or the Province of Sindh. ‑

(iii) Under section 3(28) of the General Clauses Act, 1897 "local authority" means a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund.

Admittedly, SSGC is a public limited company quoted on the Stock Exchange and has not been entrusted by the Government with the control or management of a municipal or a local fund. SSGC, therefore, cannot be regarded as a local authority against which a writ can be issued under Article 199 of the Constitution.

(iv) The term "Public Servant" has been defined in Pakistan Penal Code as follows:

"21. 'Public servant.' The words 'public servant' denote a person falling under any of the descriptions hereinafter following, namely:‑‑

First.‑‑‑Every covenanted servant of the State;

Second.‑‑‑Every Commissioned Officer in the Military, Naval or Air Forces of Pakistan while serving under the Federal Government or any Provincial Government;

Third. ‑‑‑Every Judge;

Fourth.‑‑‑Every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make authenticate, or keep .any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court and every person specially authorized by a Court of Justice to perform any of such duties;

Fifth.‑‑‑Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;

Sixth.‑‑‑Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of J ice, or by any other competent public authority;

,Seventh. ‑‑‑Every person who holds any office by virtue of which‑ he is empowered to place or keep any person in confinement;

Eighth. ‑‑‑Every officer of the Government whose duty it is, as such officer, to prevent offences to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

Ninth.‑‑‑Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government or to make any survey, assessment or contract on or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty;

Tenth.‑‑‑Every officer whose duty it is as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town, or district, or to make, authenticate or keep any document for the ascertaining of the rights .of the people of any village, town or district;

Eleventh. ‑‑‑Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election. "

The argument of Mr. Shibli, learned counsel for the petitioner that the Chief Manager (respondent No. 1), the Chief Engineer (respondent No.2) and the Deputy General Manager (Marketing and Billing) (respondent No.3) are public servants/functionaries is not bona fide. These persons cannot by any stretch of imagination be deemed to be public servants as discussed above. It appears that Mr. Shibli learned counsel for the petitioner, while advancing this argument had in mind section 2‑A which has been added in the Service Tribunals Act, 1973, on 10‑2‑1997 whereby service under any authority, company, corporation or organization owned and controlled by the Federal Government has been declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for purpose of Service Tribunals Act, 1973. The deeming clause was added in the statute to provide a convenient and speedy remedy for .the redress of the grievances of employees of companies owned or controlled by the Government of Pakistan e.g., Pakistan Industrial Development Corporation, Karachi Electric Supply Corporation, Nationalized Banks and Sui Southern Gas Company Limited, etc. The amendment does not in any way make such employees civil servants or public functionaries to make them amenable to the writ jurisdiction of the High Court. Mr. Shibli, learned counsel for the petitioner, can only be complimented for his fertile imagination for advancing such an argument.

(v) The argument of Mr. Shibli that SSGC letter dated 14‑7‑2000 demanding arrears of Rs.1,74,826 is mala fide and liable to be set aside is not tenable. According to the statements made in the petition by the petitioner himself, the gas meter on physical examination was found defective and running slow by‑50% (sic­ actual defect was to the extent of 45% only). Consequently, in the circumstances, the demand of SSGC for arrears is justified as the defective meter had been recording lower consumption by 45 % .

(vi) Further, the petitioner has alleged that he is a consumer of SSGC through Meter No.00174485 for the last six years and has beer paying the bills regularly. The gas is obviously being supplied under a contract between the parties which lays down the terms and conditions of supply, the rights and obligations of SSGC and the consumer (petitioner) and the circumstances in which the petitioner would have the right to demand supply of gas and SSGC has the right to disconnect the same and consequences of breach of contract committed by either party. In the present case, the petitioner has prayed for declaration that the demand of Rs.1,74,826 as arrears by SSGC is illegal and mala fide and an injunction to restrain SSGC from disconnecting the gas supply to the petitioner allegedly in breach of the provisions of the agreement between them. The petitioner is thus, seeking enforcement of obligations arising from the contract between himself and SSGC. It is well established that a party cannot procure enforcement of purely contractual obligations by filing a petition under Article 199 of the Constitution (See M. Muzaffar‑ud‑Din Industries Ltd. v. Chief Settlement and Rehabilitation Commissioner, 1968 SCMR 1136 and Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector‑General of Police, Sindh. PLD 1992 Karachi 283). Consequently, this petition is not maintainable and liable to be dismissed in limine.

(vii) It is settled law that legal proceedings can be filed by or against natural or legal person only and cannot be filed against official designations or titles. The petitioner has filed the petition against the designations and titles of officers of SSGC who are not legal or G natural persons and, therefore, the petition to that extent is bad in form and not maintainable. [Secretary, B & R Government of West Pakistan v. Fazal Ali Khan, PLD 1971 Karachi 6251.

(viii) The petitioner has also sued the Government of Pakistan through the Ministry of Natural Resources, Islamabad, as respondent No.4, but has neither made any allegation nor sought any relief against it in the petition. It appears that the learned Counsel impleaded Government of Pakistan as a party/respondent to overcome any objection that might be raised by the Writ Branch on the h maintainability of the petition and thereby justify the petition by misleading the clerks of the Writ Branch. The action of the learned counsel in making the Government of Pakistan respondent No.4 is, prima facie, mala fide which act cannot but be disapproved by this Court.

1. It is well‑established that an Advocate is an Officer of the Court and is concerned in the proper administration of justice and owes an overriding duty to the Court, to the standards of his profession and to the public, to ensure that it is achieved. We regret to note that Mr. Shibli, learned counsel for the petitioner failed in his duty by not maintaining the standards expected of an Advocate as an officer of this Court in the administration of justice by1 not preparing his brief properly and placing the relevant law before the Court. The petition was fixed for Katcha Peshi and it was his bounden duty to come ready with the facts and law on the legal propositions he was going , to advance which he failed to do. Such lapse on the part of the Counsel shows disrespect to the standards of the profession, duty to the Court in the administration of justice and negligence of duty to client.

2. We may add here that when Mr. Shibli 'accepted the brief of his client, petitioners herein, he undertook to prepare and file the petition on behalf of his client as a gentleman and an honest advocate. When he charged his fee for professional service he promised his client that he shall draft the petition, research the law and present the arguments to the best of his ability for the benefit of his client at the time of Katcha Peshi and thereafter handle the matter responsibly until its conclusion. He was duty bound to fulfil his obligations to his client In Surah 5. 'Al‑Maida, Ayat 1 the Holy Qur'an ordains:‑‑

"O you who believe; Fulfil (your) obligations"

In Surah 17. Al‑Isra, Ayat 34. it is enjoined:

"And fulfil (every) covenant."

As a Muslim and as an Advocate, it was obligatory on the part of Mr. Shibli to prepare and present his clients case to the best of his ability when the matter was fixed for Katcha Peshi. From his conduct and the manner in which he argued the case before us, it is evident that he not only committed breach of the Injunctions of the Holy Qur'an but also committed a breach of promise to his client.

1. It would not be out of place to mention here that when an Advocate enters into an agreement with a client to represent him in Court and charges his fee, he contracts with that client to be skilful and careful. It is his duty to fulfil his obligation and undertaking of carrying out extensive research and argue the case to the best of his ability. If he does not do so, he not only violates the Canons of Professional Ethics but is also guilty of professional misconduct and if his client suffers injury because of his negligence he would be liable for the loss or injury suffered by his client. In Halsbury's Laws of England, 4th Edition. Volume 44, Paragraph 134 the responsibilities and conduct of counsel is discussed as follows:‑‑

"135. Liability for negligence.‑‑A solicitor holds himself out to his clients as having adequate skill and knowledge properly to conduct all business that he undertakes, whether contentious or non­-contentious. He owes a duty to his client both in contract and in tort, and he may be liable to a third person for the tort of negligence. Where the solicitor is in breach of his contractual duty to his client or where he fails to use proper care to his client or a third person, where he owes a duty of care to that third person, suffers loss as a result, he is liable in damages even if the claim in negligence is for purely financial loss. "

Further, in the case of Bashir Ahmed v. Government of Pubjab, 1985 SCMR 333, the Honourable Supreme Court has observed as follows:

"In a case of gross negligence of law or negligence on the part of the counsel, the client has to seek a redress against the counsel..."

The above two authorities have been reproduced by us to show the importance of the standard to skill and conduct which is expected from the Advoctes in a civilized society.

1. In view of the above discussion, it is crystal clear that the petition is not maintainable and the counsel should have advised his client not to pursue the same. The petition is patently vexatious to the knowledge of the petitioner's counsel and he should not have filed it even if his client insisted Counsel should never allow himself to be tempted by financial gains to commit a breech of his duty to the Court which has precedence over his duty to the client. It is accordingly dismissed with costs I of Rs.5,000 to be paid by the petitioner's counsel from his pocket to the respondents who have been unnecessarily inconvenienced and harassed and had to engage an Advocate to defend the petition after receipt of notice from the Court. Mr. Abdul Sattar Kazi, learned counsel for respondents Nos. 1 to 3 states that the costs, instead of being paid to him, may be deposited in the High Court Bar Library for purchase of books. The request made by the Respondents Counsel is commendable and appreciated. Accordingly, Mr. Shibli shall deposit Rs.5,000 with the concerned officer of the High Court Bar Library and provide a photo copy of the receipt of such deposit to Mr. Kazi within 30 days hereof.

Mr. Shibli shall also provide a photo copy of the receipt to the Additional Registrar of this Court within 30 days. In case of any dereliction by the petitioner's Counsel, the Additional Registrar shall, after notice to Mr. Shibli, bring the matter to the attention of anyone of the members of this Bench.

Q.M.H./M.A.K./N‑53/K Petition dismissed.

2001 C L C 1569

[Karachi]

Before Wahid Bux Brohi, J

Syed AKBAR ALI ‑‑‑Petitioner

versus

ADDITIONAL RENT CONTROLLER, CLIFTON CANTONMENT BOARD and others‑‑‑Respondents

Constitutional Petition No. 180 of 2000, decided on 30th October, 2000.

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

‑‑‑‑S. 17‑‑‑Ejectment of tenant‑‑‑Jurisdiction of Rent Controller, determination of‑‑‑Failure to frame issue on such point‑‑‑Effect‑‑‑Landlord and tenant relationship was denied by the tenant‑‑‑Rent Controller had taken into consideration the facts placed on record according to which the landlord had established his ownership whereas the tenant failed to prove the same‑‑­Undertaking of the tenant was also available on record whereby he had acknowledged himself to be the tenant in the premises‑‑‑Validity‑‑‑Rent Controller had rightly formed his view that the tenant had failed to pay the rent and. tentative rent order was rightly passed in circumstances.

Hasan Mohiuddin v. Muhammad Hanif 1985 CLC 1606 and Muslim Raza v. Mst. Saghira Bano 1987 MLD 3269 distinguished.

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

‑‑‑‑Ss. 17(8) & 24‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Tentative rent order‑‑‑Tenant invoked the Constitutional jurisdiction of the High Court against tentative rent order which was interim in nature‑‑‑Validity‑‑‑Appropriate course of seeking redressal of grievance available to a tenant against an interim order was the exercise of indefeasible right of appeal against final order leading to ejectment of tenant‑‑‑Where an adequate remedy was available, the procedure of invoking Constitutional jurisdiction was uncalled for‑‑‑Although the tenant had denied the relationship of landlord and tenant, yet the Constitutional petition was not competent for the reason that the tenant could assail the same in appeal if an adverse order was finally passed against him.

Sh. Muhammad Saddiq v. Khurram Gulraiz and others 1998 MLD 624; Kamran Industries v. Collector of Customs (Exports) PLD 1996 Kar. 68; Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Rana Motors Ltd. v. Razi‑ud‑Din 1983 CLC 1987; Noorul Qadir Darabu v. Ejaz Ahmed PLD 1997 Kar. 501; Habib Alvi Athar v. Hassan 1986 MLD 1656; Abdur Rehman v. Mir Ahmad Khan PLD 1983 SC 21; Arshad Kamal Khan v. Saeeda Khalid Kamal Khan 1993 SCMR 1360; Malik Rehmatullah v. Sh. Muhammad Amjad PLD 1979 Note 86 at p.60; Pakistan Burmah Shell Ltd. v. Nasreen Irshad 1989 SCMR 1892; Muhammad Munir v. Collector Customs 1999 CLC 1232; Muhammad Saeed v. Mst. Sartul Fatima and another PLD 1978 Lah. 459; Rashid Ahmed v. Soon Muhammad Saleem PLD 1976 Lah. 1450 and Ibrahim v. Muhammad Hussain PLD 1975 SC 457 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Non‑availability of right of appeal‑‑‑Assailing such order before High Court in exercise of Constitutional jurisdiction‑‑‑Validity‑‑‑If the Constitutional jurisdiction was allowed to be invoked in cases where appeal was specifically barred the same would negate the very purpose of the statute and render the provisions meaningless‑‑‑Constitutional petition was not maintainable in circumstances.

Agha Faquir Muhammad for Applicant.

Umer Qureshi for Respondent No. 1.

Iftikhar Javed Qazi for Respondents Nos.2 and 3

Date of hearing: 26th September, 2000.

JUDGMENT

The petitioner, through this petition under Article 199 of the Constitution, has called in question the order, dated 4‑4‑2000 passed by the Additional Controller of Rent, Clifton Cantonment, Karachi whereby he has been directed to deposit in the said Court an amount of Rs.3,30,000 being arrears of rent for the period from July, 1997 to March, 2000 (33 months) at the rate of Rs.10,000 per month within 30 days from the date of the said order. The petitioner has also been directed to deposit future monthly rent for the month of April, 2000 before 5th of May, 2000 and the rent for the subsequent months, before 5th of each succeeding calendar month till further orders.

1. Background of the matter is that the respondent No.2 namely Mamun Ali Bimasuk Private Limited, a Company incorporated under the Companies Ordinance, 1984 (hereinbelow to be referred to as the Company or the landlord as the case may be) filed a rent case for eviction of the petitioner before the Additional Controller of Rent, Clifton Cantonment, Karachi claiming that they are the owners/landlords and the petitioner is their tenant in respect of Apartment No.FF/2, Block‑1, Sea View Township, Defence Housing Authority, Karachi (the rented premises/apartment) at the rate of Rs.10,000 per month excluding water conservancy, electricity, gas. telephone charges etc. The said respondent stated in the application that the petitioner was previously one of the Directors of the said Company and in such capacity he was allowed to utilize premises in question as his residence and although he resigned from the directorship of the Company on 3‑12‑1992 he continued to remain in possession of the apartment and did not vacate the same despite repeated requests made in that behalf. During correspondence, the petitioner set up a claim that he is owner of the premises in question which claim the Company did not admit. It is the case of respondents that ultimately, the petitioner admitted himself as tenant and acknowledged the status of the Company as landlord in respect of the rented premises through his undertaking dated 10‑5‑1997 whereby he undertook to pay the rent at the rate of Rs.10,000 per month w.e.f. May, 1997 and to vacate the premises within one year from execution of said undertaking and also paid Rs.20,000 as rent for the months of May and June, 1997 for which appropriate receipts were issued in his favour. It was alleged that from July, 1997 and onwards the petitioner failed to pay rent and other utility charges etc. Consequently., on the basis of default in payment of rent and utility charges the responde4f No.2 sought eviction of the petitioner through the said application under section 17 of the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as the Act).

2. The petitioner resisted the proceedings and filed his written statement taking at the outset the preliminary legal objection that there was no relationship of landlord and tenant between the Company and the petitioner as such the Court had no jurisdiction. He also challenged the status of the Chief Executive of the Company and raised the plea that on that account the rent application was not maintainable. Elaborating the factual aspects of the dispute he took the plea that he was never the tenant of the Company in respect of the rented premises but he was true owner and the Company was ostensible owner since the time the rented premises/the apartment was purchased in the name of the (?) further explained that the company is, in fact, a family concern and the so‑called Chief Executive of the Company namely Syed Muhammad Ali is his real brother. He claimed that he has worked as Director and was entitled to remuneration as also the profit, being a shareholder, in the form of dividend. He alleged in his written statement that the said Chief Executive under coercion and threat took his signatures on blank paper for resignation from the directorship. As regards the undertaking, dated 10‑5‑1997 he totally denied the execution and contents thereof. He also denied the payment of rent subsequent to execution of the aforesaid undertaking.

3. The learned Rent Controller on consideration of the documents filed by the parties for the purpose of passing tentative rent order within the meaning of subsection (8) of section 17 of the Act proceeded on the basis of the contents of the undertaking, dated 10‑5‑1997 passed the impugned order in terms stated in the opening para. of this order. The petitioner being confronted with the provisions of section 24 of the Act relating to filing of appeal preferred this Constitutional petition.

4. I have heard learned counsel, Mr. Agha Faquir Muhammad for petitioner, Mr. Umer Qureshi for res on dent No.1 and Mr. Iftikhar Javed Qazi for respondents Nos.2 and 3.

5. Mr. Agha Faquir Muhammad, learned counsel for the petitioner submitted that the impugned order passed by the Rent Controller was illegal and without jurisdiction and since no efficacious remedy was available to him by way of filing an appeal, the petition under Article 199 of the Constitution was competent. He contended that the petitioner had outright denied the execution of undertaking dated 10‑5‑1997 and had in unambiguous terms taken the plea in his written statement that he was the real owner of the premises in question and had never been tenant, the learned Rent Controller was, therefore, under a legal obligation, first to adjudicate upon the question of relationship between landlord and tenant after framing an issue and allowing the parties to lead evidence, otherwise the petitioner not being a tenant within the meaning of section 2(j) of the Act the learned Rent Controller possessed no jurisdiction and the impugned order was, therefore void ab initio. It was, according to him, not an order passed under the provisions of the Act, the only course available to him, as such, was of filing a Constitutional petition. He sought support from the principles laid down in the cases reported as Sh. Muhammad Saddiq v. Khurram Gulraiz and others 1998 MLD 624, Hasan Mohiuddin v. Muhammad Hanif 1985 CLC 1606, Muslim Raza v. Mst. Saghira Bano 1987 MLD 3269, Kamran Industries v. Collector of Customs (Exports) PLD 1996 Kar. 68, Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 and Rana Motors Ltd. v. Razi‑ud‑Din 1983 CLC 1987.

6. Mr. Umer Qureshi learned counsel for respondent No.1 submitted that the impugned order was, no doubt interim in nature and no appeal would lie against such order within the meaning of subsection (1,) of section 24 of the Act, yet the aggrieved person could challenge the same by way of an appeal against the final order passed by the Rent Controller. He explained that the violation of the impugned order, if committed by the petitioner, would at the most result in an eviction order and in that event the petitioner would certainly have a chance to file an appeal under the aforesaid provision of law in case he did not intend to vacate the premises. According to him, the petitioner would be fairly within his rights to question the impugned order besides taking other pleas, therefore, if the remedy by way of appeal in the aforesaid manner is available to the petitioner the petition under Article 199 of the Constitution shall not lie. He submitted that the object of law‑makers while legislating the Act was to secure speedy disposal of the disputes arising out of rent matters which would undoubtedly be defeated, if the proceedings before the Rent Controller are delayed. He further submitted that the Rent Controller had afforded ample opportunity to the parties to place relevant documents on record and had passed the impugned order after satisfying himself that the relationship of landlord and tenant existed between the parties, therefore, it would matter a little, if formal issues are not framed before delivering such finding. He further contended that there is no specific denial on the part of petitioner against the execution of deed of undertaking on the basis of which the Rent Controller founded his finding, but he has only taken the plea that his signature was obtained under coercion and threats. He argued that the existence and proof of such facts would require factual enquiry which could not be undertaken by invoking the jurisdiction of the High Court under Article 199 of the Constitution, as such the petition shall fail. On the whole he sought support from the authorities Noorul Qadir Darabu v. Ejaz Ahmed PLD 1997 Kar. 501, Habib Alvi Athar v. Hassan 1986 MLD1656 and Abdur Rehman v. Mr. Ahmad Kh PL 1983 SC 21.

7. Mr. Iftikhar Javed nazi, learned counsel for respondents Nos.2 and 3, relying on Arshad Kamal Khan v. Saeeda Khalid Kamal Khan 1993 SCMR 1360, Malik Rehmatullah v. Sh. Muhammad Amjad PLD 1979 Note 86 at p.60 and Pakistan Burmah Shell Ltd. v. Nasreen Irshad 1989 SCMR 1892, submitted that the Rent Controller was justified in examining the material available on record for the purpose of arriving at a conclusion on the point of relationship of landlord and tenant between the parties. However, referring to Muhammad Munir v. Collector Customs 1999 CLC 1232 and Pakistan Burmah Shell's case 1989 SCMR 1892, he submitted that no issue need be framed when abundant material is available before the Rent Controller on the points involved. Arguing on the same lines as contended by learned counsel for respondent No. 1, he submitted that the petition under Article 199 of the Constitution was not maintainable in the circumstances of the case. He referred to PLD 1979 Note 86 at p.60 on this point.

8. The impugned order has been mainly assailed on the ground that learned Rent Controller omitted to frame an issue on the point of relationship between landlord and tenant despite the fact that plea of denial of such relationship was expressly raised by the opponent. No doubt determination of jurisdiction by a Tribunal/Forum is always cardinal to the cause and when the jurisdiction is questioned it has to be determined but in the instant case the learned Rent Controller has not altogether ignored this aspect; he has embarked upon this controversy and after taking into consideration the relevant documents has passed a tentative rent order. He has observed that the landlord/respondent No.2 has placed on record ample proof of the said property duly entered in their name in the record of D.H.A., M.E.O. and Cantonment Board, Clifton while the tenant, the petitioner herein, has failed to furnish such documents proving his ownership of the premises in question. He has heard the learned counsel for parties and has perused the record including the undertaking, dated 10‑5‑1997 whereby the petitioner has acknowledged himself as tenant of the premises at the rate of Rs.10,000. He has also taken into consideration the fact of payment of taxes etc. by respondent No.2. Consequently, on the basis of the documents produced, he has formed the view that the petitioner had failed to pay the rent.

9. True that the Rent Controller has not framed an issue and recorded separate evidence on such issue in order to determine relationship of landlord and tenant and this Court has time and again, insisted upon framing of such issue and in some cases remanded the matter to Rent Controller where the evidence was not led on the controversy as to relationship of landlord and tenant, but that exercise has always been undertaken by this Court in regular rent appeals. The precedent cited by learned counsel for petitioner: Hasan Mohiuddin v. Muhammad Hanif 1985 CLC 1606 re rates to a judgment passed in first rent appeal where the case was remanded to the Rent Controller with direction to frame preliminary issue on the question of relationship and to provide opportunity to the parties to lead evidence and decide the same whereafter if the question of relationship was decided in affirmative fresh tentative rent order be passed. So also in Muslim Raza's case 1987 MLD 3269 the order of ejectment of tenant on the ground of non‑compliance of tentative rent order passed by the Rent Controller without first determining issue of relationship of landlord and tenant between the parties was set aside in first rent appeal and not in a Constitutional petition. What I want to emphasize is that the appropriate course of seeking redressal of grievance available to a tenant against an interim order is the exercise of indefeasible right of appeal against final order leading to ejectment of the tenant. An adequate remedy being available, the 8 procedure of invoking Constitutional jurisdiction is simply uncalled for. Superior Courts have by and large dilated upon this issue and settled the a same in plain terms. The Courts have invariably discouraged piecemeal decision of the controversy whenever an interim order is passed in the form of tentative rent order or any other interlocutory order.

10. In Abdul Rehman v. Mir Ahmed Khan PLD 1983 SC 21 the proceedings before the Rent Controller were instituted under West Pakistan Urban Rent Restriction Ordinance, 1959 but the issue involved therein was almost similar to the main point in the instant petition such as decision in piecemeal and challenging the interim order through writ petition. The legal position was exhaustively examined and in their exposition their Lordships referred to a number of precedents and quoted the relevant portions therefrom. The following portions were cited from Muhammad Saeed v. Mst. Sartul Fatima and another PLD 1978 Lah. 459:‑‑

"The Legislature manifested its intent unequivocally by prescribing two broad categories of all orders passed under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) by making the more determinative orders constituting the smaller category appealable and all others forming the larger category non‑appealable. The scheme of such a categorization, the limits and the rationale thereof has been fully considered in Mian Manzar Bashir v. M.A. Asghar. It, therefore, follows that what the Legislature held to be an interlocutory order not by itself fit to be appealable, should not by such a device be held fit enough to attract the more important, and at a higher level, the Constitutional jurisdiction. Any contention, or practice to the contrary, would defeat and deflect the legislative intent, which has been disapproved in Mumtaz Hussain Bhutto v. Chief Administrator Auqaf etc.

There is yet another aspect of the case. The Constitutional jurisdiction is invoked and made available in cases of imminent, grave and tangible threats to valuable personal and property rights and that too subject, inter alia, to the condition that the legal remedy, if at all any available in the circumstances, is not efficacious or adequate. In this case, an order which by itself caused no tangible damage to the appellant, and is incapable of causing any, was challenged. In order to pose a real threat to him it has to be substituted by another order and the moment it so happens, a right of appeal would accrue to the appellant which right is certainly more extensive and beneficial being available in the same hierarchy and on both questions of law as well as of facts. Thus, the case of the petitioner was not a fit one to be‑ entertained in Constitutional jurisdiction. "

1. Again, in the said reported case observations relevant to the subject in issue were also reproduced from Rashid Ahmed v Soofi Muhammad Saleem PLD 1976 Lah. 1450 which run as under:‑‑

"No doubt sometimes in some cases a direction under section 13(6) of the Ordinance might look oppressive but that by itself is tt9t enough to ignore the ratio decidendi of and spirit underlying, the ruling of their Lordships of the Supreme Court in. Ibrahim v. Muhammad Hussain. It was observed that the provisional fixation of current rent and the amount of arrears under the first part of subsection (6) of section. 13 remains provisional' until it is followed by a final determination or striking off of the tenant's defence. It was also held that fragmentary decisions of the type, as involved in this case on preliminary points, leaving the main controversy about the liability of the tenant for ejectment, are most inconvenient and 'tend to delay administration of justice'.

The mischief, their Lordships were at pains to highlight, would be done if instead of appeal, the High Court were to entertain writ petition against directions made by Rent Controller under first part of subsection (6) of section 13 of the Ordinance. Obviously, if, as a result, and in pursuance of such a direction, the defence of a tenant is struck off, he would have an immediate remedy by filing an appeal. I do not agree with the learned counsel, that the said remedy would not be efficacious simply because it would be difficult to obtain stay order, when filing an appeal. The practice however, it seems, is to the contrary."

1. Their Lordships held that in view of the trend of authorities regarding exercise of writ jurisdiction in rent matters the petition before the High Court was liable to be dismissed on the short ground of availability of adequate remedy to the petitioner if ever any adverse final order was passed against him.

2. The principle laid down in Abdur Rehman's case (supra followed by this Court in the case Noorul Qadir Darabo v. Aijaz Ahmed PLD 1997 Kar. 501 which related to ejectment proceedings under the Cantonments Rent Restriction Act, 1963 wherein the learned Rent Controller had directed the petitioner to deposit the arrears and future rent of the premises in question. The petitioner assailed the aforesaid interim order through Constitutional petition and the foremost plea taken by him was that it was incumbent upon the learned Rent Controller to have determined the question of existence of relationship of landlord and tenant between the parties but without doing so he passed the said order. This Court repelled the above contention and observed that bar on appeal against an interim rent order of the Rent Controller was imposed under section 24 of the Cantonments Rent Restriction Act, 1963 with a view to avoiding the piecemeal decision in cases and to ensure expeditious disposal under the Act, therefore, if the Constitutional jurisdiction was allowed to be invoked in cases where appeal is specifically barred it would negate the very purpose of the statute and render the provision meaningless. Besides Abdur Rehman's case reference in this context in the said authority was also made to Ibrahim v. Muhammad Hussain PLD 1975 SC 457; Muhammad Saeed v. Mst. Sartul. Fatima and another PLD 1978 Lah. 459 and Habib Alvi Athar v. Hassan and' 7 others 1986 MLD 1656 wherein piecemeal decision in a matter and invocation of Constitutional jurisdiction to challenge interim orders in rent cases was plainly disapproved.

3. In 1986 MLD 1656 some interlocutory orders passed by the Rent Controller were challenged through a Constitutional petition but this Court dismissed the petition keeping in view the principle laid down in Abdur Rehman's case (supra). It was observed by this Court that section 21 of Sindh Rented Premises Ordinance, 1979 specifically bars an appeal from an interlocutory order and the object seems to avoid delay of the decision of the main application and if Constitutional petition is entertained against interlocutory orders the very object of the Ordinance would be defeated. It was further observed that the petitioner could raise the grounds taken in the constitutional petition in appeal in the final order being passed against him.

4. View taken in 1989 SCMR 1892 is also directly relevant to the instant case as it arises out of a matter under the Cantonments Rent Restriction Act, 1963. The Honourable Supreme Court observed that the question of jurisdiction could appropriately be raised by means of a Constitutional petition notwithstanding the availability of an appeal and the alternate remedy, but in the rent control matters not only special law has been enacted and Tribunal has been set up for that purpose, the law itself envisages such interlocutory or jurisdictional determinations; and so also appropriate provision and the stage has been prescribed for challenging them. The objections may be of the absence of relationship of landlord and tenant etc., but, as further held, when the law takes notice of a particular situation and makes provision of it then legislative intent must be given effect to and respected. The interim orders which decide questions which had not concluded the proceedings or have the finality cannot, under the scheme of the Act, be appealed against. If all these questions touching jurisdiction are allowed to be raised by Constitutional petition then the same authority which has jurisdiction in appeal would be deciding those questions in Constitutional petitions when it has been precluded from questioning them in appeal. This will amount to defeating the manifest intention of the law as such. The Honourable Supreme Court finally held that question of jurisdiction could more appropriately be dealt with when the matter was brought before the High Court if at all in appeal.

5. Similarly it was held in PLD 1979 Note 86 at p.60 that writ petition under Article 199 of, the Constitution was not competent in the circumstances.

6. Learned counsel for petitioner, however, relied on an order passed by the Lahore High Court in a Constitutional petition under Article 199. Shaikh Muhammad Siddique's case reported as 1998 MLD 624 where the petition was allowed and the Rent Controller was directed to determine tree matter pending before him by striking an issue as to cessation of tenancy between the parties and dependant issue of jurisdiction of Rent Controller. Although the leading case Abdur Rahman v. Haji Noor Muhammad PLD 1983 SC 21 was cited before the Court in the said case, besides othe­r reported cases, the Court observed that the objection to the very proceedings was not only foundational but also jurisdictional, therefore, the Rent Controller had no jurisdiction to pass order under section 13(6) of the Ordinance. With due respects it is difficult to subscribe to this view unrestrictedly, particularly when the view taken in Abdur Rahman's case and the other authorities quoted above is clear on the point holding that, despite objection as to the relationship of landlord and tenant between the parties it would not be proper to have recourse to Constitutional petition for determining such question. Moreover, the objection as to jurisdiction is at the most a plea taken by a party; by itself it does not take away jurisdiction of a Tribunal or forum, the moment it is taken. If it is so readily presumed that Rent Controller or for that matter any Tribunal should at once stop the proceedings on such objection being raised, the adversaries would certainly be hit hard unheard.

7. The precedent cited by learned counsel for petitioner, therefore, does not help the case of petitioner when the rule laid down by the Honourable Supreme Court is manifestly otherwise.

8. The case of Messrs Kamran Industries PLD 1996 Kar..68 is also not helpful to the petitioner. It was a matter under Customs Act. This Court observed that where the impugned action was completely without jurisdiction and patently illegal it was not essential to avail the alternate remedy In order to make the aforesaid dictum applicable to this case the learned counsel for petitioner ventured to assert that the document termed as undertaking alleged to have been executed by the petitioner was denied by him and further he had taken the plea that relationship of landlord and tenant did not exist as such the Rent Controller had no jurisdiction and the order passed by Rent Controller was, therefore, void ab initio. As already observed in the foregoing paras mere taking a plea in the form of denial of relationship between landlord and tenant does not take away the jurisdiction of the Rent Controller nor his orders become illegal. He is at the most required to determine the above question which in the instant case he has already done through the impugned order.

9. Learned counsel for petitioner also referred to the Utility Stores Corporation's case PLD 1987 SC 487 wherein it has been held that when a Tribunal goes wrong in law it goes outside jurisdiction conferred on it because the Tribunal has jurisdiction to decide rightly and not the jurisdiction. to decide wrongly. It was rightly contended by learned counsel for respondents that if, at all, the Rent Controller has exercised jurisdiction wrongly the same can appropriately be assailed and such point can be raised in appeal in view of the law discussed in foregoing paras. This authority, therefore, does not extend any support to the case of petitioner. On the same premises the observations of Lahore High Court in 1983 CLC 1987 would not afford any assistance to petitioner.

10. In consequence of the foregoing discussion, it may be concluded that a Constitutional petition under Article 199 against an interim rent order passed by the Rent Controller despite the fact that the tenant has denied the relationship of landlord and tenant, would not be competent for the reason that the tenant can assail the same in appeal if an adverse order is finally passed against him in pursuance of such interim order. In other words it may be said that a Constitutional petition in aforestated circumstances is not maintainable, as adequate alternate remedy is available by way of appeal. In the instant case the petitioner has impugned the interlocutory order, dated 4‑4‑2000 through this petition which cannot be sustained. Consequently, the petition is dismissed in limine with no order as to costs.

Q.M.H./M.A.K./A‑142/K Petition dismissed.

2001 C L C 1599

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

QURIB ALI alias MUHAMMAD QABIL ‑‑‑ Appellant

versus

Dr. SHAH NAWAZ and others‑‑‑Respondents

First Civil Appeal No.7 of 1982, decided on 6th April, 2001.

(a) Benami transaction‑‑‑

‑‑‑‑Proof‑‑‑Documentary evidence is not invariably essential to support a finding for Benami character of a transaction.

(b) Benami transaction‑‑‑

‑‑‑ Benami character of a transaction‑‑‑Determination‑‑‑Points for consideration enumerated.

Following are the points for determination of Benami character of transaction.

(i) Source of consideration.

(ii) From whose custody title document and other documents came in evidence.

(iii) Who is in possession of suit‑property, and

(iv) Motive for the Benami transaction.

(c) Benami transaction‑‑‑

‑‑‑‑ Benami nature of transaction‑‑‑Motive for such transaction‑‑‑Where a person is issueless, the same makes out a strong motive for a Benami

(d) Benami transaction‑‑‑

‑‑‑‑ Benami nature of transaction‑‑‑Validity‑‑‑Law of Benami transaction has full recognition in Pakistan and the Legislature by any general measure has not declared such transaction as void. [p. 1608] D

(e) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 23‑‑‑Benami nature of transaction against public policy‑‑‑Purchase of property by Government servant in name of his relatives‑‑‑Where no such restriction was imposed on Government servant to purchase immovable property in the name of other person, provisions of S.23 of Contract Act. 1872 were not applicable.

(f) Benami transaction‑‑‑

‑‑‑‑Nature of transaction‑‑‑Proof‑‑‑Plaintiff had produced original as well as attested copies of Revenue Record and utility bills‑‑ ‑Contention of the plaintiff was that he being in Government service could not purchase the property in his name, therefore, the same was purchased in the name of the defendant who was his real brother‑‑‑Source of income of the defendant was not such out of which he could have purchased the suit‑property ‑‑‑Effect‑‑‑­Plaintiff had proved his case through oral and documentary evidence and as such was the real owner of the suit‑property‑‑‑Judgment and decree passed by both the Courts below whereby suit of the plaintiff was dismissed were set aside.

Maj. (Retd.) Mazhar Mahmood Khan v. Khushal Khan Jadoon 1995 MLD 316; Syed Habib Mehmood v. Mrs. Bilqees Fatima 1997 MLD 390; Mst. Sardar Khatoon and others v. Dost Muhammad and another 1988 SCMR 806; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Sultan v. Nawab Mouladad PLD 1969 Kar. 221; Mani Ram Misra v. Purshotam Lal and another AIR 1930 A1_l. 732; Mst. Halima v. Muhammad Kassam and others 1999 MLD 2934 and Ganesa Naicken v. Arumugha Naicken AIR 1954 Mad. 811 ref.

Qadir Bux Memon and Zaheer Hassan for Appellant.

Ahmed Ali Shahani for Respondents.

Date of hearing: 19th February, 2001.

JUDGMENT

The instant appeal has been remanded by the Honourable Supreme Court on the ground that the evidence produced by the parties respectively had not received proper consideration in the light of law bearing Benami transaction. In the opinion of the worthy apex Court no documentary evidence was invariably essential in order to support a finding of a Benami character of a transaction. The matter is remanded to the High Court for a fresh decision after taking into consideration the evidence already on record and on a proper evaluation thereof in the light of relevant law.

The above appeal was remanded on 3rd July, 1991 and for ten long years it could not be disposed of for one reason or the other. It was argued seriously by the parties on 14‑2‑1991 and 19‑2‑2001 and finally it was fixed for judgment which is given hereunder:

The facts of the case are already given in the judgments of the learned Senior Civil Judge, Khairpur and the Honourable High Court and for the sake of brevity, need not be repeated. However, for co‑relating the submissions of the parties, the main features of the case are narrated below: ‑‑

Qurib Ali was in the employment of erstwhile Khairpur State when he purchased certain land specifically described in paras.7 and 11 of the plaint, in the name of his brother Muhammad Chuttal. The reason for purchasing the above property in the name of his, brother was that Qurib Ali was a Government servant and an embargo was placed on the purchase of land by the Government servant without obtaining permission from the Government. Qurib Ali paid the entire sale consideration, and claimed to have remained in possession and enjoying of the said property and paid the Government dues (Dhal etc.). He also possessed the documents of title of the land purchased by him and the various receipts paid towards the instalments of the land. He was also in possession of a registered document for the piece of land purchased by him from a private person in the name of his brother. Qurib Ali has thus produced revenue receipts ranging from the year 1950 to 1977, Village Form 8‑A and 8‑B in respect of the land purchased by him in the name of his brother. Besides he examined five witnesses who were all unanimous in supporting his claim of Benami transaction in favour of Muhammad Chuttal.

In defence, Shahnawaz son of Muhammad Chuttal and 2 other witnesses namely Bagh Ali and Bux Ali were examined, who denied that Qurib Ali had remained in possession of the land in question. P.W. Shahnawaz has also produced certain documents, which are mostly the duplicates of the original documents produced by Qurib Ali. D.W. Bagh Ali and Bux Ali have denied that Qurib Ali remained in possession of land after its purchase.

The learned trial Court did not believe the oral testimony of the witnesses on the point of Benami character of the property, and insisted upon production of any written undertaking wherein Muhammad Chuttal would have promised to return the land to Qurib Ali when he so desired. He also repelled the contention that any embargo was placed on Government servants in Khairpur State for purchasing property in his own name. For such reasons, it was held that the plaintiff had given insufficient proof of the Benami character of the transaction. Consequently, the suit was dismissed.

The plaintiff assailed the above judgment and decree in appeal before Honourable High Court but he could not succeed in appeal also. The learned Single Judge of this Court was also of the opinion that nothing documentary was produced to prove the Benami character of the transaction anti reliance was placed only on oral evidence which, in his worthy opinion, was not sufficient. Besides, Muhammad Chuttal has all along remained the recorded owner of the land in question. It was also held that the plaintiff/appellant has failed to show any law under which fetters were placed on his powers to purchase the land in his own name being a Government servant. Summing up his findings, the learned Judge observed that the appellant utterly failed to prove that he had provided the funds for the purchase of the property and that he exercised a domain over the property as absolute owner thereof. The simple copy produced of the Circular of Khairpur State imposing a ban on the purchase of property by Government servants was also discharged as inadmissible as its genuineness, in his worthy opinion, was highly questionable. For such reasons, appeal was dismissed which obliged the appellant to move an application for leave to appeal which was allowed and consequently the matter is remanded to this Court for fresh decision after a careful reappraisal of the evidence on record, and after proper evaluation thereof. The parties were also given an opportunity to produce proper circulars, instructions and Rules relevant on the question of acquisition of immovable property by civil servants of Khairpur State at the relevant time. The question of law contained in section 23 of the Contract Act demanded consideration for final decision of the case and its impact on the legality of the claim of the appellant, was also to be judged.

The learned counsel for the appellant has relied upon the case of Major (Recd.) Mazhar Mahmood Khan v. Khushal Khan Jadoon reported in 1995 MLD (Kar.) 316.

The learned counsel for the respondent has relied upon the following case‑law:‑‑‑

(1) Syed Habib Mehmood v. Mrs. Bilqees Fatima 1997 MLD 390. (2) Mst. Sardar Khatoon and others v. Dost Muhammad and another 1988 SCMR 806, (3) Muhammad Sajjad Hussain V: Muhammad Anwar Hussain 1991 SCMR 703, (4) Sultan v. Nawab Mouladad PLD 1969 Kar. 221, (51 Mani Ram Misra v. Purshotam Lal and another AIR 1930 All. 732, (6) Mst Halima v. Muhammad Kassam and others 1999 MLD (Kar.) 2934 part (a) and (7) Ganesa Naicken v. Arumugha Naicken AIR 1954 Mad. 811.

I have heard the learned counsel for the parties at length, perused the record and have also carefully gone through the various rulings produced on their behalf.

During the course of proceedings, the counsel for the appellant moved application for summoning the original Circular referred to above to the Deputy Commissioner, Khairpur, who is the Custodian of old record of Khairpur State. It appears that proper interest was not taken and consequently an "unsigned" circular was sent which was neither authentic nor carried any more evidentiary value than the one already on record. After a passage of time, the counsel for the appellant was successful in getting original Book captioned as "A manual of Khairpur State special circulars". It was published in the year 1936 under the authority of Government of Khairpur State. This book contains many circulars on different subjects including the relevant Circular No.24, which appears at page 48 of this book. The original copy of the book is kept on record.

The learned counsel appearing on behalf of defence vehemently challenged the authenticity of the above book on the solitary ground that it was not signed by any authority. This objection is manifestly based on misconception of law. In this connection it may be stated that section 52 of the Qanun‑e‑ Shahadat completely repels the contention raised on behalf of defence. For ready reference, the contents of section 52 of Qanun‑e‑ Shahadat are reproduced below:‑‑

"Section 52. Relevancy of statement as to any law contained in law books.‑‑‑ When the Court has to form an opinion to a law of any country any statement of such law contained in a book purporting to be printed or published under the Authority of the Government of such country and to contain any such law and any report of a ruling of the Courts of such country contained in a book purporting to be a report of such ruling, is relevant. "

Thus, the motive of the appellant for making a Benami transaction in the name of his brother stands fully proved. The other criteria for proving the character of Benami transaction is also proved by the evidence, which is discussed below, under Issue No.5 which is apparently the most important issue

The appellant has examined himself as Exh.72. In his statement, Qurib Ali has fully supported his contentions as put forth in his pleadings. He has stated that he was in the Government service of Khairpur State and was issueless. These were persons for making Benami transaction and the same appear to be plausible. Qurib Ali, the appellant has further stated that he made the payment and incurred expenditure on the improvement of the land. He claimed that his brother was only a grazier and cultivated small pieces of lands which were hardly enough for his own maintenance. He has produced 5 true copies of Form 8‑A as Exhs.74/1 to 74/5, Revenue Receipt for Flat rate as Exh.75, 81 Land Revenue Receipts as Exhs.76/1 to 76/81, o Land Revenue Bills as Exhs.77/1 to 77/6.

True copy of Form A No. 1072 as Exh.78, true copy of Khasra of two Dehs as Exhs.80 and 81, true copies of "A' Forms Nos.496, 633/496 etc. as Exhs.81 to 85, Revenue Bill Form as Exh.86. Land Revenue Receipts as hxns.87/1 to 87/2. Original Challan as Exh.88, True copy of flat rate bill as Exh. 92. All these documents are originals or certified true copies and I have no reason to disbelieve them or doubt their authenticity or genuineness. In presence of such overwhelming evidence of purchase of land and possession thereof, I cannot subscribe to the observations of the two Courts that Qurib Ali only confined his case to oral testimony.

As for the other evidence, as already stated, Qurib Ali examined as many as 7 witnesses, who are all either the close relatives of the parties, their close acquaintances. To appreciate and evaluate their evidence, the gist of each evidence is given below:‑‑

P.W. Jiand'Exh.45

He stated that Qurib Ali was Government servant and because of the ban on purchase of immovable property by Government servants, Qurib AL being issueless purchased the land in question in the name of his brother Muhammad Chuttal. Qurib Ali paid the sale consideration and bore the improvement charges of the land. Muhammad Chuttal used to graze buffaloes. Qurib Ali used to get the land cultivated and his brother used to live separately. In cross, he stated that three sons were born to Qurib AU after his retirement. I was often present when Qurib Ali purchased the land. He has repelled all suggestions vehemently that the land was not purchased by Qurib Ali, or the same was being cultivated by Muhammad Chuttal.

P.W. Sodho Exh.46

He stated that Qurib Ali purchased the land when he was in Government service in the name of his brother and he used to enjoy' its produce, and make expenditure on cultivation. He stated that Muhammad Chuttal had no interest in the land in question. In cross, he admitted that he was cultivating different Survey Nos. of plaintiff Qurib Ali as his Hari. He has also denied' ail suggestions put forward by defence about the title of Muhammad Chuttal over the land in question.

P. W . Rahim Bux Exh.47

He has stated about the theft of the bag of Qurib Ali which was stolen by the defendants and which contained important documents. As for the factum of ownership, this witness has pleaded ignorance.

P.W. Gulzar Exh.48

He has deposed in unambiguous terms that the land belonged to Qurib Ali who has purchased it while in Government service in the name of his brother. Qurib Ali used to keep Haries and he also acted as a witnesN of the sale‑deed Exa.49 which was a Benami sale in the name of Muhammad Chuttal for which sale consideration was paid by Qurib Ali. He is the maternal‑uncle of the parties, and is supposed to be well‑versed with the facts of the case. He was also not prepared to admit that Muhammad Chuttal had any interest in the land in question. IMF

P.W. Mian Bux Exh.50

He deposed that he cultivated the land in question as a Hari of Qurib Ali. He used to give him seed and fertilizer. About three‑four years back, defendants have occupied the land.

P.W. Sahib Khan Exh.51

The land was given to me on Harrap by Qurib Ali and he used to give seed and fertilizer to me and take Batai. At present land is in possession of Shahnawaz (his statement was recorded on 2‑9‑1980).

P.W. Muhammad Ayub Exh 70

He is a witness about the theft of the bag of Qurib Ali. He has stated that Abdul MaJ'eed took away the bag without informing us.

I now propose to summarily deal with the evidence produced in defence.

D. W.1 Shah Nawaz, who is son of Muhammad Chuttal, who died prior to the retirement of Qurib Ali and who was subsequently married with the daughter of Qurib Ali, occupied the land in the year 1976 and got the Foti Khata Badal in favour of L.Rs. of Muhammad Chuttal. He has stated that the land in question was purchased by his late father and during his lifetime has remained in possession and enjoyment of the same. He had denied all contentions of the plaintiff Qurib Ali and has further denied that he has not occupied the land but it has developed upon him in due course of law. He has produced a number of documents which are listed below as Exhs.113 to 142. It is noticed that most of such documents are duplicate copies of the documents produced by Qurib Ali. or receipts for Dhal etc. after the occupation of the land by him. The witnesses examined by the defence are 13ux Ali and Bagh Ali. Their evidence may also be summarized as under:‑‑

D.W. Bagh Ali (Exh.98)

He deposed that the suit‑land was purchased by Muhammad Chuttal and I used to cultivate the land as Hari on a portion. Prior to me Nizamuddin and Abdul Majeed used to cultivate the land as Haries. (Such persons have not been examined). He has strongly asserted that Qurib Ali neither purchased the land nor he had any concern with the same. He has never remained in possession. In cross, he has admitted that 30‑40 years ago he used to sell fuel. His Goth is situated 2 miles away from the land in question.

D.W.3 Bux Ali (Exh.101)

He deposed that after death of Muhammad Chuttal, Nizamuddin used to cultivate the land and sons of Bagh Ali are cultivating the land. In cross, he admitted that for the last 10‑12 years he was working as Beldar. I heard that Muhammad Chuttal purchased the land and I do not know who paid the consideration. He repelled the suggestion that the suit‑land belonged to plaintiff Qurib Ali.

After analysing the evidence discussed above and making evaluation, there remains no room for doubt that the appellant has succeeded in proving the Benami character of the transaction. The overwhelming evidence which is unimpaired by cross‑examination has tilted the balance in his favour. It would be worthwhile to mention that D.W. Shahnawaz was no born when the purchases were made and thus whatever he has stated in this behalf is hearsay. No direct evidence has been produced to show that the purchased were made by Muhammad Chuttal in his benefit. Judged from the surrounding circumstances, also, the nature of transaction is proved to be Benami I have no hesitation to respectfully subscribe to the view of the learned Judge of the Honourable Supreme Court that documentary evidence is not invariably essential to support a finding for Benami character of a transaction. In the instant case, the appellant has not confined to production of oral evidence but he has placed on record authentic and genuine record in support of his claim. As has been rightly pointed out that the true touchstone for determining Benami nature of transaction as consistently formulated by the superior Courts through various judicial pronouncements. Some of them are also mentioned in the remand order which are reproduced as under:‑_

(i) Source of consideration.

(ii) From whose custody title documents and other documents came in evidence.

(iii) Who is in possession of suit‑property.

(iv) Motive for the Benami transaction.

In the light of evidence on record, I wish to make my observations on each point as under:‑‑

Points Nos. (i) and (ii)

Admittedly, the documents produced as Exhs.79 to 86 are the title documents which .remained in possession of the person who is the real owner. Similarly, documents produced as Exh.88 is the original challan for paying money which is supported by Revenue Receipts Exhs.76/1 to 76/81 and the entries in the name of Qurib Ali in Form VIII‑A, Exhs.74/1 to 74/5 as well as Exh.80 clearly and manifestly prove that the land in question was purchased by Qurib Ali and he made the payment of sale consideration.

Point No.(iii)

The documents produced above clearly establish that since before 1976, the appellant was in possession when he was forcibly dispossessed by respondent No.1 through force. The statement of various persons examined as P. W s. and D. Ws. are in consonance on this point.

Point No.(iv)

The circular placing a ban on the purchase of land by Government servants in Khairpur State is reproduced as under:‑‑

The Book containing such notification/circular is beyond any doubt genuine, original and relevant. Besides, the above reason the fact that at the relevant time, Qurib Ali was issueless, makes out a strong motive for a "Benami transaction". The above discussion exhaustively covers the main Issue No.5 which is pivotal in the whole case and is replied in favour of appellant. Incidentally, Issues Nos.6 and 7 are also covered under this discussion and these are also decided in favour of appellant.

As for Issue No.8 is concerned, the learned trial Court has rightly pointed out that the suit having been filed by the appellant, this issue is declared as redundant.

Issues Nos.9 and 10 are discussed in the concluding paragraph of this judgment while Issues Nos. 1 to 4 were not pressed by the parties. Thus, all the issues are discussed as framed in the suit.

Referring to the legal objection relating to section 23 of Contract Act, suffice it to say that in the instant suit, an agreement implied or concluded is not to be enforced against the Government. Therefore, section 23 of Contract Act shall have no impact on the brevity of contract between Qurib Ali and Muhammad Chuttal. The law of Benami transaction has full recognition in Pakistan and the Legislature by any general measure has not declared such transaction as void. The Circular No.24 issued by the erstwhile State imposes restrictions on purchase of property by a Government servant. It does not restrain a Government servant from purchasing immovable property in the name of other person for various reasons. In my opinion section 23 of Contract Act has no application on the present case.

The upshot of the above discussion is that the appellant has successfully proved his case through oral and documentary evidence. He is the real owner of the land in question and the judgment and decree passed by the learned Senior Civil Judge and affirmed in appeal are liable to be set aside. Consequently, the suit of the appellant is decreed as prayed with cost. The learned trial Court is directed to ascertain the mesne profits by appointing a Commissioner and pass final decree in accordance with law.

Q. M. H. /M. A. K./Q‑11/K Appeal allowed.

2001 C L C 1618

[Karachi]

Before Mushir Alam, J

Messrs M.R. TRANSPORT CO.‑‑‑Plaintiff

versus

Messrs NATIONAL GENERAL INSURANCE CO. LTD. ‑‑‑Defendant

Suit No.859 of 1995, decided on 14th February, 2001.

(a) Insurance Act (IV of 1938)‑‑‑

‑‑‑‑S. 47‑C(2)‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Bar of jurisdiction of Civil Court under the provisions of S.47‑C(2) of Insurance Act, 1938‑‑­Motor Insurance claims‑‑‑Powers of Civil Court to adjudicate the insurance dispute‑‑‑Scope‑‑‑Selection of forum, choice of plaintiff‑‑‑Any party may take the dispute before "Settlement Board" constituted under the provisions of S.47‑C(2) of Insurance Act, 1938, but the provision cannot be read as a barring clause‑‑‑Jurisdiction of Civil Court in terms of S.9 of C.P.C. extends to all claims of civil nature unless expressly or impliedly barred‑‑‑Civil Courts jealously guard their jurisdiction‑‑‑Provision of S.47‑C(2) of Insurance Act, 1938, only signifies the existence of alternate remedy for resolution of dispute over motor insurance claim‑‑‑Where there are more than one forums available for resolution of a dispute, then generally choice of forums rests with the plaintiff‑‑‑Unlike Constitutional jurisdiction mere existence of alternate remedy does not divest Civil Court of its inherent jurisdiction to adjudicate dispute of civil nature unless otherwise barred‑‑­Disputes arising out of insurance claims can be adjudicated by Civil Court accordingly.

(b) Insurance Act (IV of 1938)‑‑‑

‑‑‑‑S. 47‑‑‑Dispute between insured and insurer‑‑‑Risk‑‑‑Proof of‑‑‑Onus‑‑‑Factors necessary to be proved to repudiate the claim of the insured enumerated.

Once the insured proves that the loss, damages or injury on account of "Risk" covered has been sustained, then heavy burden lies upon insurer to dislodge and repudiate such claim by establishing any of the factors namely:‑‑

(i) Risk was not covered;

(ii) Risk was excluded by exception clause;

(iii) Policy was obtained by (a) suppression of material fact, (b) misrepresentation, (c) fraud, by the insured;

(iv) Breach of material term/condition on which policy was issued.

(c) Insurance Act (IV of 1938)‑‑‑

‑‑‑‑S. 47‑‑‑Insurance contract‑‑‑Assigning any different meaning to a word after execution of contract‑‑‑Scope‑‑‑Party cannot be unilaterally allowed to apply or assign any restricted or particular shade of meaning to a word or the risk covered, to avoid or repudiate the contract and avoid its obligation and/or liability arising thereunder.

(d) Insurance Act (IV of 1938)‑‑‑

‑‑‑‑S. 47‑‑‑Insurance claim‑‑‑Repudiation of claim by the insurer‑‑‑Particular nature of risk was not printed in General exception clause of Policy Form due to an oversight‑‑‑Insurer, on such plea, refused to pay the insurance claim‑‑‑Validity‑‑‑After expiry of policy such plea could hardly justify the stance taken by the insurer‑‑‑Even if such was the case, then it was the insurer to suffer and not the insured‑‑‑Foundation of all commercial contracts including insurance contract was based on trust, if the foundation of contract was allowed to be defeated, then no more sanctity could be attached to any contract‑‑‑Insurance companies were expected to be even more beneficial not only in their outlook but must practise beneficial and generous attitude while settling claims of insured rather than finding lame excuses like the one in the present case to refute and dislodge the claim at any cost‑‑‑Such tendency was rampant, which needed to be. changed‑‑‑Repudiation of the claim of the insurer was unfounded and policy was admitted‑‑‑Suit was decreed in circumstances.

(e) Insurance Act (IV of 1938)‑‑‑

‑‑‑‑S. 47‑B‑‑‑Interest rate 5% higher than prevailing Bank rate‑‑‑Object and scope‑‑‑Provisions of S.47‑B of Insurance Act, 1938, have been grafted by the Legislature with an object to ensure that claims are settled and paid promptly and without delay‑‑‑In event of unjustified delay the insured may be adequately compensated which would also serve as a deterrent for the insurer not to deprive insured of his due and legitimate claim without any legitimate excuse.

Akhtar Ali Mehmood for Plaintiff.

Iftikharuddin Siddiqui for Defendant.

Date of hearing: 14th February, 2001.

JUDGMENT

Plaintiff has filed instant suit for the recovery of insurance claim in respect of Mitsubishi Pajero Jeep Model 1993, Registration No.BC‑3275. Said vehicle was comprehensively insured under the Insurance Policy No.KR‑A‑063/1193 in the sum of Rs.8,00,000 from the defendant insurance company, covering risk mentioned therein, for a period from 24‑11‑1993 to 23‑11‑1994 in accordance with the terms as set insurance policy Exh.P.l/3.

Briefly stating facts are that on 24‑8‑1994 subject vehicle was snatched on gunpoint from the plaintiff. F.I.R. No.494 of 1994 of the incident was lodged with the Police Station Gulshan‑e‑Iqbal on the same date.

Plaintiff lodged the claim with the defendant insurance company. Survey was carried out and all code formalities as required by the defendant before settling the claim were carried out but, the defendant through their letter, dated 1‑10‑1995, repudiated the claim of the plaintiff, consequently instant suit was filed.

Record shows that the defendant was served. However, the written statement was not tiled within the time prescribed. Defendant was debarred from filing written statement on 24‑4‑1996. Even the application filed by the defendant under 'Order 9, Rule 13, C.P.C. was dismissed on merits. Defendant was ordered to be proceeded ex parte.

Case came up for final disposal plaintiff evidence was recorded on 12‑9‑2000, such evidence had gone unrebutted as the counsel for the defendant again chose not to appear and cross‑examine the plaintiff, though chance was given.

It is contended by Mr. Akhtar Ali Mehmood, learned counsel for the plaintiff that plaintiff had lodged his claim within 'time, but the defendant without any just cause, one year after expiry of the Insurance Policy, rejected the claim. Insurance policy expired on 23‑11‑1994, incident which formed the basis of claim took place on 24‑8‑1994. The defendant through letter, dated 1‑10‑1995 (EXh.P.l/8) unjustly repudiated the claim. It was further contended that the insurance policy provided for the indemnity against loss in terms of section 1 of the said policy, whereunder, the defendant insurer undertook to indemnify the insured against loss or damages to the insured vehicle on happening of the eventuality mentioned therein. It is also pointed out that the said incident does not find mention in the General Exceptional Clause, of the Insurance Policy. Under the circumstances the claim of the plaintiff had gone unrebutted and he is entitled for the same.

The plaintiff has claimed judgment and decree in the sum of Rs.8,00,000 being value of the subject vehicle and has also claimed interest at the rate of 5% above prevailing bank rate with monthly rest w.e.f. 29‑10‑1994, till realization.

It was further contended by the learned counsel that the claim of interest is made pursuant to subsection (2) to section 47‑B of the Insurance Act, 1938 (hereinafter referred as "Act").

Mr. S.M. Shuja learned counsel for the defendant strenuously contended firstly that, the claim of the plaintiff is barred by law. In the first instance the plaintiff ought to have taken the dispute to the "Claims Settlement Board" as constituted under subsection (2) to section 47‑C of the Insurance Act, 1938. Secondly the policy does not cover the risk as notified in letter, dated 10‑8‑1995. I have heard both the learned counsel and perused the record.

I deem appropriate to deal with the legal objections as urged by the learned counsel for the defendant. In order to appreciate his 1st objection section 47‑C(1) of the Act is reproduced as under:

"Where any dispute arises under a policy insuring a motor vehicle or covering any liability of its owner arising out of the use of the vehicle, any party to the dispute may make an application for adjudication to the 'Claims Settlement Board' constituted under subsection (2)."

Bare perusal of the above‑referred provision suggests that any dispute arising under insurance policy in respect of a motor vehicle or encompassing any liability of its owner arising out of use of insured vehicle, any party may take up such dispute before the "Settlement Board" constituted under subsection (2) to section 47‑C of the Act of 1938. Such provision cannot be read as a barring clause. Jurisdiction of the, Civil Court in terms of section 9 of Civil Procedure Code, 1908 extends to all claims of civil nature unless expressly or impliedly barred. Civil Courts jealousy guard their jurisdiction. Above‑referred provision only signifies the existence of alternate remedy for resolution of dispute over motor insurance claim. Where there are more than one forum available for the resolution of a dispute, then generally choice of forum rest with the plaintiff.‑

Unlike Constitutional jurisdiction mere existence of alternate remedy will not divest Civil Court of its inherent jurisdiction to adjudicate dispute of civil nature unless otherwise barred. Even otherwise, no prejudice is shown to have been caused to the defendant, who was extended full and fair opportunity to defend, which was not availed.

Only provision I could lay hand under the Act, that apparently creates a conditional bar to invoke jurisdiction of Civil Court is section 1071, of the Act, which too, stipulates previous sanction of Advocate‑General for invoking jurisdiction of Civil Court against persons mentioned therein, who offers or induces directly or indirectly to take out, continue or renew a policy, any rebate in his commission or premium in terms of section 41(1) of the Act. Admittedly claim in suit is not hit by this provision. First objection, therefore, is not sustainable and is accordingly rejected.

Now adverting to second limb of the arguments of learned counsel for the defendant that, subject claim is not covered under the policy. As stated above comprehensive insurance coverage was provided under section 1 of the policy, which runs as follows:‑‑

"Section 1. Loss or damage.‑‑‑ The company will indemnify the insured against loss of or damage to the motor car and/or its accessories whilst thereon‑‑

(a) by accidental external means;

(b) by fire external explosion, self‑ignition or lightening or frost or burglary or house‑breaking or theft;

(c) by malicious act;

(d) whilst in transity by road, rail, inland, waterway, lift or elevator.

Even the General Exception Clause does not find mention of the incident forming basis of plaintiff's claim. Very fact that, the defendant while tufting the claim of the plaintiff for the first time came up with following justification through letter, dated 1‑10‑1995:

"We have to state that our letter of 9‑4‑1995 was in the light of conditions etc. contained in the current Motor Tariff wherein loss/damage due to act of terrorism, is excluded under head 'General Exceptions'. Due to oversight while printing the Policy Forms concerned clause remained unchanged causing inconvenience to you, for which we regret very much. (Emphases added).

Above repudiation shows that the incident/theft depriving the. plaintiff of his vehicle was not excluded under the General Exception Clause.

By issuance of insurance policy against agreed premium, the insurer assumes the responsibility to indemnify the insured against possible loss, damage or injury that may be sustained or occasion on account of any contingency, hazard, danger or on happening of any act/event, commonly known as "Risk" covered that may occur or take place at a future date, but during the currency of the policy. Once the insured proves that the loss, damages or injury on account of "Risk" covered has been sustained. Then the heavy burden lays upon the insurer to dislodge and repudiate such claim by establishing any of the .factors namely:‑‑

(i) Risk was not covered.

(ii) Risk was excluded by exception clause.

(iii) Policy was obtained by (a) suppression of materia: fact, (b) misrepresentation, (c) fraud by the insured.

(iv) Breach of material term/condition on which policy was issued.

In the instant case plaintiff's claim was repudiated by the defendant through letter, dated 1‑10‑1995 on the ground that the risk or loss/damage due‑to act of terrorism "due to oversight while printing the policy form was not included in the exception clause.

Subject policy was issued on 24‑11‑1993, loss occasioned on account of theft on 24‑8‑1994, during the subsistence of the policy. Repudiation was made after more than one year from the date of reporting­ loss and expiry of policy. The reason assigned for the repudiation was not attributable to the insured admittedly loss was sustained by the plaintiff on account of "theft" as specified in sub‑clause (b) to section 1 reproduced above. Burglary, house‑breaking and theft are all acts of terrorism, and such "risk" are covered under the policy. Defendant cannot be allowed to wriggle out of its contractual obligation to indemnify the insured by assigning restricted or any of the several shades of meaning to a particular risk agreed to be covered. A word used in a contract or specifically speaking in case of a insurance contract a particular "risk" covered are understood to mean and include with all its incidents, concomitant, and shades of meaning which may be attributable to such word or "risk" in common parlance, unless a particular or restricted meaning is agreed to be assigned by the parties to a contract. After a contract is executed then a party cannot be unilaterally allowed to apply or assign any restricted or particular shade of meaning to a "word" or the "risk" covered to avoid or repudiate the contract and avoid its obligation and/or liability arising thereunder.

Once an insurance contract' is executed then on happening of any art event or contingency compassing "risk" covered the liability of the insurer to indemnify the loss crystallizes. An insurer cannot be allowed to wriggle out or repudiate its liability on the ground not available under law, moreso alleging that due to oversight while printing the "Policy Form I particular nature of risk was not included in the General Exception Clause such excuse that too after expiry of the policy can hardly justify the stance taken by the defendant. Even if such be the case, then it is the insurer to suffer and not the insured. Under circumstances the second objection is also rejected. The repudiation of the claim was without any legal justification.

Adverting to merit of the claim, defendant failed to lead any evidence to‑ rebut the claim. The policy is admitted.

There is no dispute that the policy was taken out in the sum of Rs.8,00,000. The defendants were obliged to indemnify the plaintiff for any eventual losses on account of happening of the contingence or "risk covered" therein. That the plaintiff was deprived of his vehicle on gunpoint. Plaintiff successfully established the claim. Questions as‑to whether plaintiff is also entitled to interest at the rate of 5 % higher than the prevailing bank rate, is concerned. Answer to this question is provided by section 47‑B of the Act which stipulated that whenever claim under the policy issued by the insurer matures and becomes due and the beneficiary thereto has complied with the coddle formalities then within 90 days from the date when the claim becomes due and payable or from the date when the formalities are complied with, the insurer is obliged to settle such claims, otherwise insurer is saddled to bear to pay interest at the rate of 5 % higher than the prevailing bank rate on such claim. Section 47‑B of the Act has been grafted by the Legislature apparently with an object to ensure that claims are settled and paid promptly and without delay. In event of unjustified delay the insured may be adequately E compensated and at the same time is the deterrent for the insurer not to' deprive insured of his due and legitimate claim without any legitimate excuse.

Foundation of all commercial contracts including insurance contract is based on trust, if the foundation of contract is allowed to be defeated, then no more sanctity could be attached to any contract. Insurance companies play vital role in commercial world they are expected to be even more beneficial not only in their outlook but must practise beneficial and generously attitude while settling claims of insured rather than finding lame excuses like the one in instant case to refute and dislodge the claim at any cost, such tendency which is rampant, need to be changed.

In the instant case as has been held above the repudiation of the claim of the defendant was unfounded, therefore, I have no option but to decree the suit as prayed with cost.

Q.M.H./M.A.K./M‑152/K Suit decreed.

2001 C L C 1778

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

LIAQAT ALI SHAH and others‑‑‑Appellants

versus

NOOR AHMED ‑‑‑Respondent

First Rent Appeal No.41 of 2000, decided on 14th March, 2001.

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

‑‑‑‑S. 15(2)(vi)‑‑‑Reconstruction of premises‑‑‑Owner of the premises wad in the best position to determine whether, despite the fact that the building was relatively recent or structure thereof was quite firm, he would like to remove or reconstruct it for its benefit‑‑‑For reconstruction of premises, it was mandatory for the owner of premises to produce a sanctioned plan of the proposed building.

Abdul Aziz v. Rent Controller and others 1987 SCMR 2074 and Muhammad Akbar and another v. Dr. Muhammad Rafique and others 1980 SCMR 483 ref.

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

‑‑‑‑S. 15(2)(vi)‑‑‑Ejectment of tenant on ground of reconstruction of premises‑‑‑Landlord seeking ejectment of tenant on ground of reconstruction had not filed original or certified copy of the approved building plan of premises, but had filed only photo copy of plan alongwith his ejectment application, which could not be considered to be an evidence‑‑‑Landlord having neither produced nor exhibited in evidence approved building plan, Rent Controller was not justified to order ejectment of tenant on ground of reconstruction of premises.

Muhammad Israr v. Sh. Muhammad Salim 1982 CLC 1592; Naik Muhammad v. Bagh Ali PLD 1987 Lah. 208; Abdul Aziz v. Rent Controller and others 1987 SCMR 2074; Muhammad Akbar and another v. Dr. Muhammad Rafique and others 1980 SCMR 483; Muhammad Sadiq v. Abdul Rauf 1999 MLD 2592; Safdar Butcher v. Khawaja Pervezuddin Butt PLD 1996 Kar. 508 and Muhammad Iqbal through Legal Heirs and others v. Khan Muhammad through Legal Heirs and others PLD 1999 SC 35 ref.

Abdul Naeem for Appellants.

S. Manzar Alam for Respondent.

Date of hearing: 7th February, 2001.

JUDGMENT

This first rent appeal arises out of the order passed by the learned Rent Controller, Sukkur on 17‑5‑2000, whereby he had allowed the said application of the respondent for eviction of the appellants from the disputed house on the ground of reconstruction only. The appellants are directed to vacate the premises in question and hand over the same to the respondent within 30 days from the date of the order. The appellants being aggrieved with the impugned orders have preferred this appeal on the following facts.

That the appellants are in occupation/possession of the house/property bearing C.S.No.D‑572 situated at Shikarpur Road, Sukkur, as tenants at the rent of Rs.15 per month. The said house was rented out to the father of the appellants, namely, Muhammad Ali Shah by its previous owner/landlord namely Abdul Karim son of Abdul Ghafoor. The said previous owner/landlord of the said property had filed ejectment case against the father of the appellants, naively, Muhammad Ali Shah, in the Court of Rent Controller, Sukkur, being R.A. No.9 of 1978 titled as Abdul Karim v. Muhammad Ali Shah, on the ground of default in payment of rent at the rate of Rs.15 per month. The said ejectment case was dismissed by the learned Rent Controller, Sukkur, by his order, dated 25‑3‑1981. The father of the appellants, namely, Muhammad Ali Shah had filed application under section 10(3) of the. Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the "Ordinance"), for deposit of rent, against the said previous owner/landlord, namely, Abdul Karim, being R.A. No. 16 of 1982, in the Court of Rent Controller, Sukkur, which was allowed and as such the father of the appellants during his lifetime had regularly been depositing the rent of the said house in the Court at the rate of Rs.15 per month and after his death, the appellants being sons of the said Muhammad Ali Shah are in occupation/possession of the said house as tenants by operation of law. The appellants had deposited the rent of the said house in the Court in the said case up to February, 1999.

On 4‑3‑1999, the respondent alongwith one Lutfullah Siddiqui came to the aforesaid house of the appellants and informed them that the respondent had purchased the aforesaid house/property on 22‑2‑1999 from its previous owner/landlord, namely Abdul Karim and asked the appellants to vacate the aforesaid house within a few days, failing which the appellants would be dispossessed from the aforesaid house by force and through illegal means. The appellants apprised the respondent and said Lutfullah Siddiqui that they are in occupation/possession of the aforesaid house as tenants of the previous owner/landlord, namely, Abdul Karim and after purchase of the aforesaid house/property by the respondent they have become his tenants by operation of law. The appellants offered the respondent that they are ready to pay the rent of the aforesaid house to him at the rate of Rs.15 per month from the date of his purchase viz. 23‑2‑1999, but the respondent refused to receive the rent from the appellants. Thereafter, the respondent and the said Lutfullah Siddiqui went away by issuing threats to the appellants that they would come again for illegal eviction of the appellants from the aforesaid house/property. On 6‑3‑1999, the appellants approached the office of Sub?-Registrar, Sukkur and enquired about the change of ownership of the aforesaid house/property from the name of its previous owner/landlord to the name of the respondent, where they came to know that the aforesaid house/property had been purchased by the respondent from its previous owner/landlord namely Abdul Karim on 22‑2‑1999. According to the appellants, the respondent with ulterior motive and mala fide intention has not served any notice upon the appellants so far as required under section 18 of the Ordinance. However, the appellants on 4‑3‑1999 for the first time came to know about the change of ownership of the aforesaid house/property. Thereafter, the appellant had remitted the rent of the disputed house to the respondent through postal money order bearing M.O. No. 136, dated 22‑3‑1999 for Rs.15 being rent from 22‑2‑1999 to 21‑3‑1999 at the rate of Rs.15 per month but the respondent had refused to receive and accept the said money order and the same was returned to the appellants. Finding no other way, the appellants on 3‑4‑1999 had filed an application under section 10(3) of the Ordinance, for deposit of rent against the respondent being R.A. No.21 of 1999 in the Court of the learned 1st Senior Civil Judge and Rent Controller, Snkkur, which was allowed on 3‑4‑1999. Hence, the appellants have regularly been depositing the rent of the disputed house in the Court in the said case up to date, at the rate of Rs.15 per month and no rent is outstanding against the appellants.

On 7‑3‑1999, according to the appellants, the respondent and one Lutfullah Siddiqui (the general attorney of the respondent) alongwith some unknown persons had come to the disputed house/property and they had tried to demolish the disputed house by force in order to evict the appellants illegally. Since the respondent and said Lutfullah Siddiqui had issued threats to the appellants for their eviction/dispossession from the disputed house by force, therefore, the appellants on 8‑3‑1999 had filed a civil suit for declaration and perpetual injunction against the respondent and said Lutfullah Siddiqui in the Court of Joint Civil Judge, Sukkur, being Civil Suit No.3 of 1999. Alongwith the plaint of the said suit the appellants had also moved an application under Order 39, Rules 1 and 2 read with section 151, C.P.C. for restraining the respondent and the said Lutfullah Siddiqui from evicting/dispossessing the appellants from the disputed house/property by force or in any other manner without due process of law till decision of the said suit. The learned Joint Civil Judge, Sukkur, was pleased to grant the status quo in favour of the appellants and against the respondent and the said Lutfullah Siddiqui. On 6‑8‑1999, by consent 'of the parties, the said suit was disposed of by the learned Joint Civil Judge, Sukkur and as such the respondent and the said Lutfullah Siddiqui had been permanently restrained from evicting/dispossessing the appellants from the disputed house/property and from demolishing any portion of the disputed house/property by force or in any other manner without due process of law. Vide order, dated 6‑8‑1999, passed by the learned Joint Civil Judge, Sukkur, Civil Suit No.3 1999.

Apart from the disputed property, which is in possession of the appellants, the respondent is also owner of other properties bearing C.S. No.D‑567 measuring 310‑8 square Yards, D‑568 measuring 46‑0 square yards and D‑569 measuring 37‑0 square yards, situated at Shikarpur Road, Sukkur. According to the appellants, in the month of May, 1999, the respondent had filed a false ejectment case against the appellants being R.A. No.37 of 1999, in the Court of 1st Senior Civil Judge and Rent Controller Sukkur, seeking eviction of the appellants from the disputed house on alleged grounds of default in payment of rent and the alleged personal use of the respondent after reconstruction of the disputed property. It is also alleged that in his main application/case had not specifically pleaded the grounds of personal use and reconstruction. It is submitted that the respondent in his main application/case had claimed the rent of the disputed house from the appellants at the rate of Rs.5,000 per month instead of actual rent of Rs.15 per month.

The appellants had filed their written statement, wherein inter alia they denied the allegation of the default in payment of rent and the alleged requirement of the disputed house for the use of respondent after reconstruction of the disputed property. The parties had led their evidence before the learned trial Court by way of affidavits. The attorney for the respondent, namely, Lutfullah Siddiqui had filed his affidavit‑in‑evidence. It is alleged that the said attorney of the respondent had not produced/filed any document whatsoever with his affidavit‑in‑evidence. The said attorney of the respondent was cross‑examined by tae counsel for the appellants. Appellant No. 1, who is real brother and general attorney for rest of the appellants, had filed his affidavit‑in‑evidence with copy of general power of attorney as well as certified true copies/original documents duly exhibited as Exh. 23 to Exh. 56. The appellant No .1 who is general attorney for rest of the appellants was cross‑examined by the counsel for the respondent.

After hearing the arguments of the counsel for the parties, the learned trial Court framed the following issues/points:‑‑

"(1) Whether there exists relationship of landlord and tenant between the parties?

(2) Whether the opponents have committed wilful default in payment of rent since 23‑2‑1999, if so, at what rate?

(3) Whether the applicant requires the premises in question for reconstruction and for personal bona fide use?

(4) What should the order be?"

The learned trial Court decided the issue/point No. 1 in affirmative while the issue/point No.2 decided in favour of the appellants and against the respondent. Regarding issue/point No.3 it is submitted that the learned trial Court decided the ground of personal use against the respondent and in favour of the appellants while ground of reconstruction decided in favour of the respondent and against the appellants. The learned trial Court by giving its finding under issue/point No.4, allowed the ejectment of the appellants from the disputed house through the impugned order on the ground of reconstruction only.

I have heard Mr. Abdul Naeem, learned counsel for the, appellants as well as Mr. S. Manzar Alam, learned counsel for the respondent and also gone through the material available on record.

It has been urged by the learned counsel for the appellants that the trial Court has failed to consider and appreciate that respondent had neither specifically pleaded/taken ground of reconstruction of the disputed property in his said application nor in affidavit‑in‑evidence of‑his attorney (Lutfullah Siddiqui) and, therefore, the findings of the trial Court in respect of Issues Nos.3 and 4 on the grounds of reconstruction are liable to be set aside on this ground alone. It is further stated by him that respondent had neither produced in evidence original sanctioned/approved building plan nor any approval letter from competent authority viz. Sukkur Municipal Corporation, Sukkur. Not only this but no documents whatsoever was produced/exhibited on behalf of the respondent in support of his case. It is further urged that the documents produced by the appellants in affidavit‑in‑evidence of Liaquat Ali Shah exhibited as Exh.23 to Exh.56 are available on‑the record but the same are without signatures of the learned Presiding Officer. In this respect, it is settled law that the act of the Court shall prejudice no man, since the same is liable to be set aside. The learned counsel for the appellants has placed reliance on the following cases:‑‑

(1) Muhammad Israr v. Sh. Muhammad Salim 1982 CLC 1592(b) 1593, (2) Naik Muhammad v. Bagh Ali PLD 1987 Lah. 208(b), (3) Abdul Aziz v. Rent Controller and others 1987 SCMR 2074 and (4) Muhammad Akbar and another v. Dr. Muhammad Rafique and others 1980 SCMR 483.

Mr. S. Manzar Alam, learned counsel for the respondent has contended that premises in question is needed for reconstruction and for personal bona fide use. The said premises is in dilapidated condition and requires for reconstruction. He has also produced photo copy of the approved plan, which shows that the respondent intends to reconstruct the premises. In support of his contentions, learned counsel for the respondent referred to the following cases:‑‑

(1) Muhammad Sadiq v. Abdul Rauf 1999 MLD 2592; (2) Safdar Butcher v. Khawaja Pervezuddin Butt PLD 1996 Kar. 508 and (3) Muhammad Iqbal through Legal Heirs and others v. Khan Muhammad through Legal Heirs and others PLD 1999 SC 35(a).

Learned Rent Controller has decided the issue of reconstruction in favour of the respondent/landlord and ordered eviction of the appellant.

As far reasonableness of decision to reconstruct the building is concerned, it is the owner of the premises who is in the best position to determine whether despite the fact that the building is relatively recent or structure thereof is quite firmed, he would like to remove or reconstruct it for its benefit. Then it is mandatory for consideration for the owner of the property to produce a sanctioned plan of the proposed building. It is advantageous to rely on a case of Abdul Aziz v. Rent Controller and others in 1987 SCMR 2074. The operative part of the judgment is reproduced as under:‑‑

"The contention raised by the learned counsel for the petitioner also overlooked that it has been repeatedly held by this Court in cases under clause (iv) of section 13(2) that if the owner of a building seeks eviction of the tenant on the ground of reconstruction, the only condition that he is required to fulfil is to produce a copy of duly sanctioned plan of the proposed building and that in view of the provisions of subsection (5) of section 13 it shall be presumed that the landlord requires the building for reconstruction (or material, alteration) both reasonably and bona fide. "

The same view was reiterated in Muhammad Akbar and others v. Dr. Muhammad Rafique and others 1980 SCMR 483, operative part thereof is reproduced as under:‑‑

"The requirement of the law is that there should be sanctioned plan of construction or reconstruction of the property, and it is, therefore, immaterial whether the forwarding letter of the Municipal Authority concerned is produced or not, if the Court is satisfied that the plan produced is, indeed, a sanctioned plan as required by law None of the three Courts which have dealt with the case, have doubted the genuineness of the sanctioned plan. The learned Additional District Judge, who decided the matter against the landlords, proceeded on the basis that the plan had been sanctioned during the pendency of the ejectment petitions and that one of the landlords, named Muhammad Bashir was already residing in a rented house. In other words even he did not doubt the genuineness of the sanctioned plan. In the circumstances, there is no merit in the submission that the sanctioned plan was not duly proved on the record."

It is further observed that the respondent has not filed original nor the certified copy of the approved plan, but a photo copy has been placed on record, which was filed alongwith ejectment application, the same cannot be considered to be an evidence. Therefore, the finding of the trial‑Court on the ground of reconstruction is without any basis and same is not sustainable in law. The trial Court has failed to consider and appreciate that in the instant case the ground of reconstruction was linked with the ground of personal requirement. The alleged requirement of reconstruction was on account of personal requirement. Since the latter fails, its effect will be that the formal will also fall. From the above observations, it appears that the Rent Controller has not fully applied his mind judiciously to the facts of the case, as it is admitted position on record that neither any approved building plan was produced nor exhibited in evidence on behalf of the respondent before the trial Court. Therefore, finding of the trial Court on such ground is without any basis and same is not sustainable in law.

Accordingly, I accept this appeal and set aside the order of the Rent Controller and dismiss the application for ejectment filed by the present respondent. However, there will be no order as to costs.

H.B.T./L‑111/K?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.

2001 C L C 1799

[Karachi]

Before Faiz Muhammad Qureshi, J

MUHAMMAD RAFIQ‑‑‑Appellant

versus

Hakeem MUHAMMAD GHAFOOR RANA ‑‑‑Respondent

First Rent Appeal No. 1263 of 2000, heard on 2nd‑April, 2001.

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

‑‑‑‑Ss. 2(f)(j) & 15(2)(ii)‑‑‑Relationship of landlord and tenant‑‑‑Default in. payment of rent‑‑‑Tenant had denied relationship of landlord and tenant between the parties‑‑‑Rent Controller formulated the issue in respect of existence of relationship of landlord and tenant between the parties and did not formulate issue with regard to default in payment of rent‑‑‑Rent Controller in his order had discussed matter with regard to default in payment of rent though no issue was framed in that respect‑‑‑Rent Controller despite framing issue with regard to relationship of landlord and tenant between the parties, did not discuss the said issue‑‑‑Rent Controller not only had not formulated issue of default in payment of rent, but also had not taken into consideration entire facts of the case while deciding issue of relationship of landlord and tenant between the parties‑‑‑Tenant had also not been given chance to cross‑examine landlord and his witnesses‑‑‑Judgment of Rent Controller was set aside and case was remanded to be decided afresh after giving full opportunity to the tenant for cross‑examination of landlord and his witnesses‑‑‑Rent Controller was also directed to give elaborate judgment on the issue of relationship between the parties and also to give detailed findings on the issue of default in payment of rent.

(b) Administration of justice‑

‑‑‑‑ Case has to be decided on merits and not on mere technicalities.

Mustufa Lakhani for Appellant.

Khursheed Ahmed Qureshi for Respondent.

Date of hearing: 2nd April, 2001.

JUDGMENT

At the request and consent of the learned counsel for both the parties, I am deciding this F. R. A. at the stage of Katcha‑Peshi.

Present appellant has called in question the impugned judgment dated 21‑7‑2000 passed by VIth Rent Controller, Karachi, East in Rent Case No.850 of 1997 whereby the appellant has been directed to hand over the vacant possession of the demised premises within 90 days from the date of the impugned order, hence this appeal.

Brief facts of the case are that the opponent/appellant had been lawful tenant of previous owner Mst. Zohra Jan on monthly rent of Rs.600 in respect of Shop No. 1 on ground floor. Khan Zaman Manzil, situated at Natha Khan Goth. Shah Faisal Colony No. 1, Karachi. The applicant/respondent purchased the building in question vide sale agreement, dated 9th June, 1997 from its previous owner and took over the constructive possession of the tenants of the ground floor consist upon two shops including the demised premises and one big room on the first floor which is in physical possession of the applicant/respondent. After purchasing the building in question, the applicant/respondent got transferred the same in the record of area Excise and Taxation Office for the purpose of payment of property tax. Soon after the purchase, the applicant/respondent served a notice, dated 10‑6‑1997 for change of owner upon the opponent/appellant and other tenant through registered A.D. asking to pay the rent in future to the applicant/respondent. The said notice was duly acknowledged/received by the opponent/appellant, but even after the receipt of the notice, the opponent/appellant did not pay/tender the due rent in the terms of the said notice to the applicant/respondent in respect of the demised premises. The applicant/respondent gave another notice, dated 18‑9‑1997 by registered post A.D. which was also acknowledged by the opponent/appellant but despite that the opponent/appellant did not pay the due rent to the applicant/respondent intentionally and thus, committed default in payment of rent. The opponent/appellant fled written statement in which he has denied the relationship of landlord and tenant, stating therein that the ownership rights have not been transferred to the applicant/respondent as yet and the applicant/respondent is not entitled to claim the rent. He has also denied that the opponent/appellant had been the tenant of Mst. Zohra Jan on monthly rent of Rs.600 in respect of the demised premises. It is stated that the opponent/appellant, was originally inducted as tenant in the demised premises by late Khan Zairian, the husband of Mst. Zohra Jan under the tenancy agreement, dated 21‑10‑1965 at the rate of Rs.50 per month and the opponent/appellant is running a tailoring shop under the name and style of "Rightway Tailors". In the month of April, 1973 Khan Zaman was killed, hereafter the opponent/appellant became the tenant of late Mir Zaman, the real brother of late Khan Zaman who enhanced the rent of the demised premises from time to time and accordingly the rent was paid to Mir Zaman after 31st May, 1985 to his son Ashiq Khan who never issued the rent receipt to the opponent. It is further stated that there was litigation between Mst. Zohra Jan and late Mir Zairian with regard to the properties left by late Khan Zaman and Mr, Abdul Aziz Shaikh, Advocate was appointed as Court receiver to whom the opponent/appellant had paid rent of 8 months i.e. June, 1989 to January, 1990. After receiving the legal notice from Mst. Zohra Jan, the opponent/appellant accepted her in respect of demised premises at monthly rent of Rs.250. The reply of the notice was given on 3rd March, 1990 but Mst. Zohra Jan refused to receive the rent for the month of February, 1990 at the rate of Rs.250 per month and demanded rent at the enhanced rate of Rs.600 per month. On refusal of rent by Mst. Zohra Jan, the rent for the period from 1‑2‑1990 to 30‑4‑1991 was deposited in M.R.C No. 157 of 1990 in Court at the rate of Rs.250 per month. Mst. Zohra Jan had filed Rent Case No.188 of 1990 under section 15 of the Sindh Rented Premises Ordinance, 1979 for the ejectment of the opponent/appellant on the ground of default in payment of rent and personal requirement which was dismissed vide order, dated 2‑8‑1993 against which F.R.A. No.388 of 1993 was filed in the Honourable High Court of Sindh which was also dismissed in default. After the dismissal of Rent Case No‑188 of 1990, she refused to accept the rent at the rate of Rs.250 per month, therefore, the opponent/appellant started depositing rent in Court in M.R.C. No.583 of 1993 from 1st August, 1993. In order to harass the opponent/appellant and to extort rent at Rs.600 per month. Mst. Zohra Jan on 13‑3‑1990 disconnected the electricity supply for which the opponent/appellant had filed Rent Case No. 189 of 1990 but it was dismissed. It is denied that Mst. Zohra Jan wanted to dispose off the demised premises to the opponent/appellant and he was given offer for its purchase. It is also denied that the building in question is under the process of its regularization. It is stated that the unauthorized possession of the occupants of plots in Natha Khan Goth where the building in question is situated have been regularised. It is further stated that the title and rights of Mst. Zohra Jan have not been transferred to the applicant/respondent and the agreement of sale and receipt of payment of Rs.4,00,000 are denied. It is further stated that since Mst. Zohra Jan could not succeed in Rent Case No.188 of 1990, therefore, the present case has been filed in the name of the applicant/respondent under a false and bogus sale agreement. The service of notice under section 18 of the Sindh Rented Premises Ordinance, 1979 has not been denied but the applicant/respondent cannot claim the rent of the demised premises from the opponent/appellant for the period prior to the change of the ownership and the opponent/appellant is paying rent to Mst. Zohra Jan by depositing the same .in Court. It is, however, denied that the opponent/appellant had not given reply of the notice, dated 7‑7‑1997 informing the applicant/respondent that he was not required to pay the rent to him being tenant of Zohra Jan at the rate of Rs.250 per month and the same is being deposited by the opponent/appellant in M.R.C. No.583 of 1990. It is further stated that the applicant/respondent malafidely refused to receive the said reply which was sent to him and finally the opponent/appellant in his written statement has prayed for dismissal of the rent application.

The learned trial Court formulated the following points/issues for determination:‑‑

(1) Whether there exists relationship of landlord and tenant between the parties, if so what is its effect?

(2) What should the order be?

After hearing learned counsel for the parties and going through the affidavit‑in‑evidence and the material available on record viz. Newspaper cutting, sale agreement, postal receipt coupon, notice, the learned Rent Controller passed the judgment in terms as stated above.

Mr. Mustufa Lakhani, Advocate for the appellant, has invited my attention on the affidavit‑in‑evidence filed by respondent/landlord namely Hakeem Muhammad Ghafoor and according to him the cross‑examination has not been done by the learned counsel for the appellant to this witness. He has further submitted that second affidavit has been filed by the respondent/landlord and there was no order to file such second affidavit alongwith two witnesses. According to Mr. Lakhani the relationship of landlord and tenant exists there. Finally he has argued that no chance has been given to hurt to cross‑examine the witnesses although he had made an application on 3‑11‑1999 stating therein that his client has gone to Mansehra and he seeks certain instructions from him to cross‑examine the respondent/landlord and his witnesses but the same was rejected by the learned Rent Controller. He has further argued that on 10‑12‑1999 he filed an application for recalling the witnesses but without success. Finally he had argued that he had been condemned unheard. He has very frankly suggested if the case is remanded to the trial Court affording the appellant/opponent a chance to cross‑examine the respondent/landlord and his witnesses.

On the other hand Mr. Khurshid Ahmed Qureshi, learned counsel for the respondent, has opposed and has submitted that the delaying tactics have been adopted from the side of the appellant and there is no fault at all.

I have considered the arguments rendered by the learned counsel for the parties. I have very carefully examined the judgment and have gone through other material available on record and affidavit‑in‑evidence. Admittedly the learned Rent Controller has formulated. two issues (1) Whether there exists relationship of landlord and tenant between the parties? and (2) What should the order be?

The judgment reveals that the learned Rent Controller has discussed with regard to default in payment of rent with regard to the demised premises and yet no issue has been framed by the trial Court. Whether there is a default on the part of the appellant being tenant and from which date the default begins and such issue has not been framed. Admittedly affidavit‑in­-evidence has been filed by the respondent/landlord and his witnesses and there is second affidavit‑in‑evidence filed by the appellant and the application on 3‑11‑1999 was moved by the learned counsel for the appellant stating therein that his client has gone to Mansehra and he seeks certain instructions to enable him to cross‑examine the landlord and his witnesses but the appellant/opponent has been deprived of the chance and has been condemned unheard. I am of the considered view that the learned Rent Controller has not formulated issue of default and has not taken into consideration entire facts of the case while deciding Issue No. 1. I am also of the considered view that the appellant has not been given chance to cross‑examine the respondents/landlord and his witnesses and there is also second affidavit and it has been settled by the superior Courts that the case is to be decided on merits and not on mere technicalities. Upshot of the above discussion is that the appellant has not been given chance to cross‑examine the landlord/respondent. The issue of relationship between tenant and landlord has not been discussed elaboratively by the leaned Rent Controller, no issue of default has been framed by the learned Rent Controller. Accordingly, set aside the impugned judgment, dated 21‑7‑2000 passed by the learned VI, Rent Controller, Karachi, East and remand the case to the trial Court with directions to give full opportunity to the appellant for cross‑examination. of the respondent/landlord and his witnesses and after giving full opportunities to the parties. The learned trial Court is further directed to give elaborate judgment on the issue of relationship between the parties and so also to give elaborate findings on the issue of default and decide the matter in accordance with law. The appellant/opponent is strictly directed‑not to indulge in delaying tactics and if once again he follows the same path, the trial Court would be at liberty to reject his defence. Parties are directed to appear before the trial Court on 18‑4‑2001. The office is directed to send R&P as soon as possible.

In above terms the appeal is allowed.

H.B.T./M‑154/K Order accordingly.

2001 C L C 1808

[Karachi]

Before Anwar Mansoor Khan, J

RAZA ENTERPRISES‑‑‑Applicant

versus

ASSISTANT COMMISSIONER, BIN QASIM‑‑‑Respondent

Suit No.1201 and Civil Miscellaneous Application No.8276 of 1998, decided on 15th March, 2001.

(a) Works of Defence Act (VII of 1903)‑‑‑

‑‑‑‑Ss. 3, 4 & 7‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑­Interim injunction, grant of‑‑‑Occupation of land by National Logistics Cell of Pakistan Army‑‑‑Verbal approval of General Headquarters‑‑‑Applicability of the provisions of Works of Defence Act, 1903‑‑‑Legality‑‑‑Land in question was occupied by the National Logistics Cell without any notice or publication under S.3(2) of Works of Defence Act, 1903‑‑‑Suit was filed by the plaintiff to restrain the National Logistics Cell from interfering into the lawful construction of the plaintiff‑‑‑Plea of the Cell Authorities was that the land was occupied on the oral instructions of the General Headquarters‑­Validity‑‑‑National Logistics Cell of Pakistan Army was required to act in accordance with law and it was not the job of Pakistan Army or any unit o force which was under the army to take over, acquire, or capture any portion of Pakistani territory without the exercise of lawful authority‑‑‑Land it question had neither been purchased, rented or leased out to National Logistics Cell as such the National Logistics Cell had not become owner of the land in question just because of it's occupation‑‑‑High Court restrained the National Logistics Cell from taking any adverse, coercive or other action so as to disturb the possession of the plaintiff‑‑‑Interim injunction was granted in circumstances.

(b) Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance (III of 2001)‑‑‑

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art.23‑‑‑Right of possession of property‑‑‑Vines of Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001‑‑‑Lease of the land in favour of the plaintiff was cancelled under the provisions of S.3 of Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001, by the Authorities‑‑‑Validity‑‑‑Ordinance in question was in excess of authority, jurisdiction, and impugning on the Fundamental Right to property‑‑‑Where third party interests had been created, such law might not act against such third party as valuable rights had been created‑‑‑Under the provisions of Art.23 of the Constitution, a person could acquire and possess the property and such possession could not be disturbed only because by an Ordinance the Government chose to dispossess the plaintiff or cancel his lease‑‑‑Lease having created valuable rights in favour of plaintiff could only be cancelled in terms of the document itself.

Farogh Naseem for Applicant.

Abdul Rauf Khan and Ch. Muhammad Iqbal for Respondent.

2001 C L C 1808

[Karachi]

Before Anwar Mansoor Khan, J

RAZA ENTERPRISES‑‑‑Applicant

versus

ASSISTANT COMMISSIONER, BIN QASIM‑‑‑Respondent

Suit No.1201 and Civil Miscellaneous Application No.8276 of 1998, decided on 15th March, 2001.

(a) Works of Defence Act (VII of 1903)‑‑‑

‑‑‑‑Ss. 3, 4 & 7‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑­Interim injunction, grant of‑‑‑Occupation of land by National Logistics Cell of Pakistan Army‑‑‑Verbal approval of General Headquarters‑‑‑Applicability of the provisions of Works of Defence Act, 1903‑‑‑Legality‑‑‑Land in question was occupied by the National Logistics Cell without any notice or publication under S.3(2) of Works of Defence Act, 1903‑‑‑Suit was filed by the plaintiff to restrain the National Logistics Cell from interfering into the lawful construction of the plaintiff‑‑‑Plea of the Cell Authorities was that the land was occupied on the oral instructions of the General Headquarters‑­Validity‑‑‑National Logistics Cell of Pakistan Army was required to act in accordance with law and it was not the job of Pakistan Army or any unit o force which was under the army to take over, acquire, or capture any portion of Pakistani territory without the exercise of lawful authority‑‑‑Land it question had neither been purchased, rented or leased out to National Logistics Cell as such the National Logistics Cell had not become owner of the land in question just because of it's occupation‑‑‑High Court restrained the National Logistics Cell from taking any adverse, coercive or other action so as to disturb the possession of the plaintiff‑‑‑Interim injunction was granted in circumstances.

(b) Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance (III of 2001)‑‑‑

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art.23‑‑‑Right of possession of property‑‑‑Vines of Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001‑‑‑Lease of the land in favour of the plaintiff was cancelled under the provisions of S.3 of Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001, by the Authorities‑‑‑Validity‑‑‑Ordinance in question was in excess of authority, jurisdiction, and impugning on the Fundamental Right to property‑‑‑Where third party interests had been created, such law might not act against such third party as valuable rights had been created‑‑‑Under the provisions of Art.23 of the Constitution, a person could acquire and possess the property and such possession could not be disturbed only because by an Ordinance the Government chose to dispossess the plaintiff or cancel his lease‑‑‑Lease having created valuable rights in favour of plaintiff could only be cancelled in terms of the document itself.

Farogh Naseem for Applicant.

Abdul Rauf Khan and Ch. Muhammad Iqbal for Respondent.

2001 C L C 1825

[Karachi]

Before Saiyed Saeed Ashhad, C.J. and Wahid Bux Brohi, J

Miss REETA‑‑‑Petitioner

versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑845 of 1998, decided on 22nd February, 2001.

(a) Sindh Permanent Residence Certificate Rules, 1971‑‑‑

‑‑‑‑R. 8, proviso‑‑‑Declaring order passed by Permanent Residence Certificate Appellate Committee as illegal and void‑‑‑Scope‑‑‑Validity‑‑‑In the absence of any defect in the constitution of the Permanent Residence Certificate Appellate Committee or in the absence of any one of the members of the Appellate Committee other than the Chairman, such defect or shortcoming would not be a ground for rendering unanimous decision of the remaining members as illegal or void.

(b) Fraud‑‑‑

--‑Allegations of fraud and forgery‑‑‑Where such allegations are made and proved against a party in obtaining a document or a judgment or an order from a Court or Tribunal then the entire proceedings together with the judgment/decree or the order of the Court or the Tribunal are to be treated as void and nullity in the eye of law as fraud vitiates most solemn of the transactions.

Abdur Rehman Khan v. Muhammad Altaf and 3 others 1997 CLC 1260 ref.

(c) Limitation‑‑‑

‑‑‑‑ Principle of limitation, applicability of‑‑‑Order based on fraud and forgery‑‑‑Such order is to be treated as a void order and nullity in the eye of law‑‑‑Law of limitation does not apply for challenging an order, which is nullity in the eye of law.

Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962 and Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543 ref.

(d) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 3‑‑‑Decree passed in violation of mandatory provisions ‑‑‑Limitation‑‑­Decree in a suit passed in utter contravention of mandatory provisions of law was to be treated as a nullity, and against such decree no limitation would run.

1987 SCMR 1543 quoted.

(e) Sindh Permanent Residence Certificate Rules, 1971‑‑‑

‑‑‑‑R. 8‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Cancellation of admission to medical college‑‑‑Permanent Residence Certificate was obtained by the candidate on the basis of forged and fabricated documents‑‑‑After the admission in medical college the Authorities cancelled the certificate of the candidate and her seat in medical college‑‑‑Contention of the candidate was that the order passed by the Authorities was time‑barred‑‑‑Validity‑‑‑Where the Domicile Certificate and Permanent Residence Certificate was granted on the basis of forged and fabricated documents/official record, and the same was in utter contravention of the mandatory provisions of law, no limitation would run against challenging the order of the Authorities by way of appeal‑‑­Admission of the candidate on the basis of such forged documents can never be protected as the law does not favour a person who has obtained undue advantage by misrepresentation, forgery and playing fraud on the Authorities‑‑‑Granting discretionary relief to the candidate in such a case would amount to perpetuating the fraud committed by the candidate and retention of ill‑gotten gains which the candidate had obtained on account of issuance of the Certificate on the basis of misrepresentation and fraud‑‑‑Authorities had rightly cancelled the certificate and High Court refused to interfere with the orders passed by them in circumstances.

Zahoor Ahmad v. Province of Balochistan and 2 others PLD 1979 Quetta 55 ref.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑High Court, jurisdiction of‑‑‑Scope‑‑­High Court would not pass an order which would have the effect of continuation or perpetuating an illegality or a wrong.

Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 ref.

Nooruddin Sarki for Petitioner.

M. Sarwar Khan, Addl. A.‑G., Sindh for the Official Respondents.

Usman Ghani Rashid for the Private Respondents.

Date of hearing: 16th January, 2001.

2001 C L C 1850

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

Messrs AL‑NOOR CONSTRUCTION COMPANY through Managing

Partner‑‑‑Petitioner

versus

PROVINCE OF SINDH through Secretary Irrigation, Sindh Secretariat, Karachi

and 3 others‑‑‑Respondents

Constitutional Petition No.D‑369 of 2000, decided on 3rd May, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑­Constitutional petition intended to enforce contractual obligations for which Court was to resolve factual controversy‑‑‑Maintainability of petition‑‑‑High Court was competent to issue directions to the persons or Authorities performing their functions in connection with the affairs of the Federation or the Province on the application of aggrieved party‑‑‑Rights exclusively founded on the basis of contract, howsoever clear those may be, were not enforceable by invoking the Constitutional jurisdiction of High Court‑‑­Where factual controversy was involved, Constitutional petition under Art. 199 was not a proper remedy‑‑‑Constitutional jurisdiction, though discretionary with the High Court, had to be exercised with extra care and caution.

State of Pakistan v. Miraj PLD 1959 SC (Pak.) 147; Chandpur Mills Ltd. v. District Magistrate PLD 1958 SC (Pak.) 267; Momin Motor Company v. Regional Transport Authority PLD 1962 SC 108; Muhammad Younis Khan and 12 others v. Government of N.‑W.F.P. 1993 SCMR 618; Federation of Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476; Bendict F.D. Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918; Khawaja Muhammad Akhtar v. President, Cantonment Board, Sialkot Cantt./Election Authority (Tribunal) and another 1981 SCMR 291; Ghulam Muhammad and another v. Mst. Noor Bibi and 5 others 1980 SCMR 933; Dr. M.A. Haseeb Khan and others v. Sikandar Shaheen and 9 others PLD 1980 SC 139 and Revenue Employees Cooperative Housing Society Limited and 8 others v. Mst. Bachoo and others 2001 SCMR 155 ref.

Abdul Ghafoor Bhurgari for Petitioner.

Muhammad Bachal Tonyo, Addl. A.‑G. for the State.

2001 C L C 1896

[Karachi]

Before Muhammad Ashraf Leghari and Muhammad Roshan Essani, JJ

Moulvi SHAHZADO DREHO‑‑‑Petitioner

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑1291 of 1999 and Civil Miscellaneous Application No. 1795 of 2000, decided on 20th December, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Review‑‑‑Disputed question of fact‑‑­Possession of the respondent on the disputed plot was admitted and construction over the plot was raised according to approved plan‑‑‑Entry in record of rights maintained by city survey office had not been denied by the parties‑‑‑Constitutional petition was dismissed by the High Court and the petitioner filed review application‑‑‑Validity‑‑‑Where there were disputed facts which required evidence, such facts could not be resolved in Constitutional jurisdiction‑‑‑Review application was dismissed being not maintainable.

Petitioner in person.

2001 C L C 1904

[Karachi]

Before S. Ahmed Sarwana, J

NADEEM GHANI‑‑‑Plaintiff

versus

UNITED BANK LIMITED and others‑‑‑Respondents

Suit No. 1336 and Civil Miscellaneous Applications Nos.8015 and 9830 of 1999, decided on 19th April, 2001.

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

‑‑‑‑S. 16‑‑‑Expression "property" appearing in S.16, C.P.C.‑‑‑Meaning‑‑­Expression relates to property situated in Pakistan.

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

‑‑‑‑S. 20‑‑‑Jurisdiction of Civil Court‑‑‑Defendant having its head office in Pakistan‑‑‑Cause of action arose in a foreign country‑‑‑Institution of suit in Pakistan‑‑‑Validity‑‑‑Under the provisions of S.20, C.P.C. a suit could be instituted in a Court within whose jurisdiction the cause of action had arisen or where the defendant carried on business or worked for gain-‑Head office of the defendants, in the present case, was situated in Pakistan and they resided and worked for gain in Pakistan‑‑‑Court in Pakistan had jurisdiction to try the suit.

Value Gold Ltd. v. U.B.L. PLD 1999 Kar. 1 ref.

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

‑‑‑‑S. 56‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2, 4 & S.151‑‑‑Ad interim injunction, grant of‑‑‑Stay of proceedings pending in Court of competent jurisdiction‑‑‑Defendant filed a suit against the plaintiff in a foreign country where the proceedings were pending in a Court of competent jurisdiction‑‑‑By filing of the suit in Court in Pakistan the plaintiff intended to stay the proceedings pending in the foreign Court ‑‑‑Validity‑‑­Proceedings before the foreign Court were initiated earlier in time in accordance with law before a Court of competent jurisdiction prior to the filing of the present suit‑‑‑High Court, under the provisions of S.56 of Specific Relief Act, 1877, declined to stay the proceedings pending in a foreign Court‑‑‑Plaintiff had neither any prima facie case nor balance of convenience was in his favour and he would not suffer irreparable loss if the proceedings in the foreign Court were not stayed‑‑‑Application was dismissed in circumstances.

Abdul Rahim v. U.B.L. PLD 1997 Kar. 62; Unjust Enrichment and the Law of Restitution in U.K. PIJ 1999 Magazine 271; 1993 MLD 1753; PLD 1994 Lah. 100; 1991 MLD 821; 1992 MLD 1711; PLD 1977 Azad J&K 70; 1974 SCMR 519 and Value Gold Ltd. v. U.B.L. PLD 1999 Kar. 1 ref.

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

‑‑‑‑Ss. 21 & 56‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑­Interim injunction, grant of‑‑‑Specific performance of agreement­ Compensation in terms of money, an adequate relief‑‑‑Effect‑‑‑Where compensation in terms of money was adequate relief for the plaintiff, relief by way of injunction was not proper.

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

‑‑‑‑Preamble & Ss. 1(2), 2(a)(i), 2(b), 2(c), 2(d) & 2(e)‑‑‑Establishment of Banking Court under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Object and scope‑‑­Banking Court, jurisdiction of‑‑‑Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, was promulgated to provide exclusively to the banking companies operating in Pakistan, a speedy procedure for recovery of loans and finances extended by them to their borrowers and customers‑‑‑Banking Court established under the provisions of Banking Companies (Recovery. of Loans, Advances, Credits and Finances) Act, 1997, in addition to the powers available to them under the Civil Procedure Code, 1908, were permitted to follow or use any other manner as they might deem fit for the purpose of expeditious recovery of the loans or finances‑‑‑Such special law was enacted to meet the alarming economic situation which had arisen in the country on account of the defaults in payments of the loans and finances by the borrowers and customers of the domestic banking companies‑‑‑Jurisdiction of Banking Court was limited to the cases where default was committed by a banking company or a customer in fulfilling their obligations arising out of the loan or finance agreements executed by them i.e. the special law applied to the agreements executed and transactions entered into in Pakistan primarily under the non‑interest banking system barring a few exceptions relating to transaction involving foreign exchange and interest payable thereon.

(f) Jurisdiction‑‑‑

‑‑‑‑ Territorial jurisdiction‑‑‑Scope‑‑‑All legislation of a country is territorial, all exercise of jurisdiction is territorial in nature and the laws of a country apply to all its subjects, things and acts within its territory.

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

‑‑‑‑S. 1(2)‑‑‑Territorial jurisdiction under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Scope‑‑‑Provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, extend to Pakistani territory and, the Act, does not envisage extra‑territorial application and the same would not apply to banking transactions conducted beyond the territories of Pakistan in another country.

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

‑‑‑‑Ss. 5, 7(4) & 9‑‑‑Civil Procedure Code (V of 1908), O. VII, R.10‑‑­Plaint, return of‑‑‑Dispute between borrower and Bank arose in a foreign country and litigation between the parties was pending there in the foreign country‑‑‑Plaintiff filed the suit on the ground that the Bank had its head office in Pakistan‑‑‑High Court did not treat the suit as one under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, as provisions thereof were not applicable in the case‑‑‑Plaint was, however, returned to the office and the same was converted into civil suit to be adjudicated in original jurisdiction of High Court accordingly:

Anwar Mansoor Khan and Muhammad Akram Shaikh for Plaintiff.

Sajid Zahid for Defendant No. 1.

Habibur Rehman for Defendant No.2.

Dates of hearing: 16th; 30th November; 1st December, 1999; 12th January; 31st March; 2000; 22nd; 29th January and 7th February, 2001.

2001 C L C 1930

[Karachi]

Before Anwar Mansoor Khan, J

SAMAD CHARITABLE TRUST‑‑‑Plaintiff

versus

Syed SABAHAT ALI and others‑‑‑Defendants

Suit No.848 of 1985, decided on 9th February, 2001.

(a) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑S. 47‑‑‑Power of attorney‑‑‑Registered document‑‑‑Time from which the document operates‑‑‑Power of attorney was executed on 27‑12‑1983 and the same was registered on 26‑1‑1985‑‑‑Date of operation of the power of attorney‑‑‑Date of operation of a document under the provisions of S.47 of Registration Act, 1908, can be earlier from the date when the same was registered‑‑‑Power of attorney, thus, was to take effect from 27‑12‑1983 and not from 26‑1‑1985.

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

‑‑‑‑S. 12‑‑‑Registration Act (XVI of 1908), S.47‑‑‑Specific performance of agreement to sell‑‑‑Registration of document‑‑‑Power of attorney was executed in the year 1983 and the same was registered in the year 1985‑‑­Attorney, on the basis of such power entered into an agreement to sell immovable property owned by the principals‑‑‑Principals disowned the agreement on the ground that they had revoked the attorney in year 1996‑‑­Effect‑‑‑Registration of the power of attorney might have been a subsequent event and even if it was accepted that it was delayed due to some dispute between the principals and the attorney and the same was subsequently registered, implying that such dispute had been settled, principals were bound by the act of their attorney‑‑‑Plaintiff could not be made to suffer on account of the dispute among the principals and the attorney‑‑‑Suit was decreed in circumstances.

Noor Muhammad and another v. Muhammad Ishaq and another 2000 MLD 251; Ahmad Khan v. Settlement Commissioner and others 1975 SCMR 64; Abdul Majeed and others v. Muhammad Akram and others 1989 SCMR 1298; Syed Abdul Khader v. Rami Reddy and others AIR 1979 SC 553; Board of Intermediate and Secondary Education, Lahore v. Mst. Salma Afroze and 2 others PLD 1992 SC 263; The Chief Settlement Commissioner, Lahore v. Muhammad Fazil Khan and others PLD 1975 SC 331; Muhammad Ibrahim v. Ibrahim PLD 1965 Azad J&K 20; Salma Abbasi v. Ahmed Suleman 1981 CLC 462 and Syed Humayun Zaidi and 4 others v. Mst. Hussain Afroza 1999 SCMR 2718 ref.

(c) Power of attorney‑‑‑

Remedy against attorney‑‑‑Where attorney acts otherwise than what has been agreed between the parties, the principal may sue the attorney for damages.

Tufail H. Ebrahim for Plaintiff.

Abdul Aziz Khan for Defendants Nos.2 to 5.

Dates of hearing: 8th and 9th February, 2001

2001 C L C 1951

[Karachi]

Before Wahid Bux Brohi, J

AYOUB MUHAMMAD KHAN‑‑‑Appellant

versus

Mst. SHAMA KHALID‑‑‑Respondent

First Rent Appeal No.548 of 1994, decided on 15th February, 2001.

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

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Landlady was residing in a house alongwith her family which was not owned by her, but was owned by her father‑in‑law and after his death had been inherited by the husband of the landlady and his other brothers and sisters‑‑‑Landlady neither had any share in the house inherited by her husband nor she had any other house of her own to live except the premises in question‑‑‑Mere fact that her husband owned a share in the house where she was previously residing alongwith her husband and children would not defeat the plea personal need of landlady nor would make the bona fides of her requirement questionable‑‑‑Landlady having proved her bona fig personal need, tenant was rightly ordered to be ejected by the Re Controller.

Vector Joseph v. Muhammad Amin 1999 CLC 1676; Mst. Say Hassan v. Ishrat Hussain 1986 CLC 1751; Manzoor Ahmed v. Karim Bux PLD 1986 Kar. 637; Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Mst. Sara Bai v. Godhra Muslim Association PLD 1993 Kar. 496 and S.M. Zaffar Pervez v. Syed Nasiruddin K. Kamal Shah 1995 CLC 1719 ref.

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

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Choice of house for his need a prerogative of landlord‑‑‑Choice of landlord to select a particular accommodation for residence irrespective of the suitability of the area was prerogative and personal affair of the person selecting such area.

M. Khalid Farooqui for Appellant.

M. Ahsan Shaikh for Respondent.

Date of hearing: 15th February, 2001.

2001 C L C 1956

[Karachi]

Before Muhammad Ashraf Leghari, J

SADAR UDDIN‑‑‑Applicant

versus

Messrs PAKISTAN BURMA SHELL and others‑‑‑Respondents

Civil Revision Application No.33 and Civil Miscellaneous Applications Nos. 187 and 499 of 2000, decided on 26th March, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Constitution of Pakistan (1973), Art. 18‑‑‑Interim injunction, grant of‑‑‑Establishing prima facie case and irreparable loss‑‑­Cancellation of licence of petrol station‑‑‑Violation of principle of natural justice and fundamental rights‑‑‑Plaintiff had been running petrol station for the past seven years‑‑‑Authorities without giving any prior notice to the plaintiff cancelled his licence, without hearing him‑‑‑Effect‑‑‑Action of Authorities was against the principles of natural justice‑‑‑Balance of convenience was in favour of the plaintiff as he was running the business of petrol station‑‑‑Free and lawful trade was the Constitutional right of the plaintiff which could not be snatched from him without hearing him or without airy justified cause‑‑‑Plaintiff would suffer irreparable loss if his established business was closed before the verdict was given in civil suit by the competent Court, where the matter was pending‑‑‑Plaintiff having shown prima facie case in his favour, interim injunction was granted to him.

Raja Ram for Applicant.

Manzar Alam for Respondent (absent).

2001 C L C 1966

[Karachi]

Before S. Ali Aslam Jafri, J

Messrs AL‑RIAZ AGENCIES‑‑‑Plaintiff

versus

CHAMBERS OF COMMERCE AND INDUSTRIES, KARACHI and

others‑‑‑Defendants

Suit No.1441 and Civil Miscellaneous Applications Nos.8907 and 9261 of 2000, decided on 20th March, 2001.

(a) Trade Organizations Ordinance (XLV of 1961)‑‑‑

‑‑‑‑S. 12(1)‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑‑Rejection of plaint‑‑‑Election dispute in defendants' organization‑‑‑Registered trade organization‑‑‑Bar in filing of suit‑‑‑Scope‑‑‑Before getting' matter referred to and decided by Arbitration Tribunal, the provision of S.12(1) of Trade Organizations Ordinance, 1961, had put complete bar on filing of suits or other proceedings against registered trade organization in respect of its affairs which included election or appointment to the Executive Committee of such organization‑‑‑Where sole cause of dispute between the parties was election of Vice‑President, bar contained in S.12 of Trade Organizations Ordinance, 1961, was attracted‑‑‑Suit was rejected in circumstances.

Abdul Razzak Rajwani v. M.Y. Industries Civil Appeal No. 13‑K of 1986 (unreported) fol.

Sultan Mawjee and 3 others v. Federation of Pakistan Chamber of Commerce and Industry, Karachi and 3 others PLD 1982 SC 174 and Khalid Tawab and another v. Shaikh Maqbool Ahmad and 2 others 1986 MLD 335 distinguished.

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

‑‑‑‑O. VII, R.11‑‑‑Rejection of plaint‑‑‑Documents filed by defendant‑‑­Admitted documents produced in defence and not only the plaint can be looked into for the purpose of deciding application under O.VII, R.11, C.P.C.

Rasheed A. Razvi for Plaintiff.

Abdul Sattar Pingar for Defendant No. 1.

Khalid Latif for Defendant No.2.

Dates of hearing: 12th, 13th, 14th, 19th, 21st and 22nd December, 2000; 4th and 8th January, 2001.

2001 C L C 2001

[Karachi]

Before Sabihuddin Ahmad and Wahid Bux Brohi, JJ

Syed MUHAMMAD AFAQ‑‑‑Petitioner

versus

FEDERAL PUBLIC SERVICE COMMISSION through Secretary and 2

others‑‑‑Respondents

Constitutional Petitions Nos. 1119, 1938, 1894, 2072, 3331 of 1999, 461 837 and 933 of 2000, decided on 7th August, 2000.

(a) Federal Public Service (Rules of Competitive Examination) Rules, 1997‑‑‑

‑‑‑‑‑R. 6(c)‑‑‑Constitution of Pakistan (1973), Art.25‑‑‑Quota reserved for specified area‑‑‑Allocation of such quota‑‑‑Migrant from foreign country and migrant from some other part of Pakistan ‑‑‑Vires of provisions of R.6(c) of Federal Public Service (Rules of Competitive Examination) Rules, 1997‑‑­Candidate who was migrant from a foreign country and applied for citizenship of Pakistan under the provisions of R.6(c) of Federal Public Service (Rules of Competitive Examination) Rules, 1997 could choose the place where he intended to reside and thus, could get admission against the quota reserved for that area and on the other hand the candidate who was born citizen and had guaranteed Fundamental Right to reside or settle anywhere in Pakistan was tied down to the place of birth or origin of his father though the candidate might not have any connection with that place or area‑‑‑Child of a person who had migrated to Pakistan might be entitled to be admitted into Government service as a candidate from an area in respect whereof his father had obtained a certificate of domicile‑‑‑Such facility was not available to the candidate whose‑father happened to be born or originated from one of the Provinces in Pakistan and the candidate would be tied down to the area of birth or origin of his father‑‑‑Provision of R.6(c) of Federal Public Service (Rules of Competitive Examination) Rules, 1997, was liable to be struck down as being violative of Art. 25 of the Constitution.

(b) Pakistan Citizenship Rules, 1952‑‑‑

‑‑‑‑R. 28‑A‑‑‑Acquiring of Domicile Certificate in respect of another area‑‑­Validity‑‑‑Person having acquired certificate of domicile from one area can always surrender the same and obtain one in respect of another area in terms of R.28‑A of Pakistan Citizenship Rules, 1952.

(c) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 27‑‑‑Federal Public Service‑‑‑Quota system‑‑‑Object and scope‑‑­Uneven state of economic development and educational opportunities in different parts of country/sub‑continent was recognised right from the formation of Pakistan, therefore, the need for affirmative action in aid of people from less developed areas was recognised and it is with this object that quota system was introduced in federal services even before the separation of East Pakistan‑‑‑Quota system may be justified, the same tends to provide weightage to residents of certain areas on the basis of disadvantages and lack of opportunities that such people have faced because of inadequacy or inequality of educational or cultural opportunities.

(d) Federal Public Service (Rules of Competitive Examination) Rules, 1997‑‑

‑‑‑‑‑R. 6(a)(iii)‑‑‑Pakistan Citizenship Rules, 1952, R.28‑A‑‑‑Constitution of Pakistan (1973) Arts.25, 27 & 199‑‑‑Constitutional petition‑‑‑Expression "belonging" as appearing in Art.27 of the Constitution ‑‑‑Applicability‑‑­Appointment in service of Pakistan‑‑‑Quota system‑‑‑Domicile of father of candidate‑‑‑Effect‑‑‑Federal Public Service Commission refused to consider the candidates for the quota allocated for the area in which the candidates had been living for past many years‑‑‑Contention of the Commission was that as the place of birth of the fathers of the candidates were different from that of their permanent residence, therefore, the candidates were not entitled to the quota allocated for their place of permanent residence ‑‑‑Validity‑‑­Reservation of posts, under first proviso to Art.27 of the Constitution, could be made for persons belonging to a class or areas ostensibly with the object of wiping out the disadvantage that the candidates had suffered on account of residing in less developed areas leading to unavailability of equal opportunities‑‑‑Interpretation of the expression "belonging" by the Commission of its own was wrongly extended to the candidates who had enjoyed the best educational facilities in developed areas, merely on the ground of their ancestry‑‑‑Provisions of R.6(a)(iii) of Federal Public Service (Rules of Competitive Examination) Rules, 1997, were ultra vires the first proviso to Art.27(1) of the Constitution‑‑‑High Court directed the Federal Public Service Commission to allocate seats to different candidates on the basis of their permanent residence or the areas in which the candidates had lived and acquired a substantial part of their education irrespective of the areas to which their fathers belonged‑‑‑Constitutional petition was allowed accordingly.

Miss Sumaeea Zareen v. Selection Committee, Bolan Medical College, Quetta 1991 SCMR 2099; Miss Salina Mughal v. Selection Committee, Bolan Medical College, Quetta 1993 SCMR 2083; Mushtaque Ahmed Mohal v. Honourable Lahore High Court 1997 SCMR 1043; Shireen Munir v. Province of Punjab PLD 1990 SC 292; Griswold v. Connecticut (1965) 381 US 479 and Pardeepjain v. Union of India AIR 1984 SC 1428 ref.

(e) Interpretation of Constitution‑‑‑

‑‑‑‑ Articles of Constitution cannot be read in isolation and the Constitution must be read and construed as an organic whole.

Munib Ahmed for Petitioners (in C.Ps. Nos.1119, 1938 of 1999 and 461 of 2000).

Muhammad Nawaz Shaikh for Petitioners (in C. Ps. Nos. 1894 and 2072 of 1999).

K. M. Nadeem for Respondent No. 3 (in C.P. No. 3331 of 1999).

Syed Zaki Muhammad, Dy. A.G. for Respondent.

2001 C L C 1

[Lahore]

Before Iftikhar Hussain Chaudhry, J

Ch. MUHAMMAD SIDDIQ BAJWA‑‑‑Petitioner

versus

CANTONMENT BOARD, RAWALPINDI ‑‑‑Respondent

Writ Petitions Nos.2087, 537, 1913, 1931, 2032 and 2092 of 2000, decided on 15th September, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Issue of notice by Cantonment Board to the petitioners and other cattle owners to remove the cattle from the limits of Cantonment Area‑‑‑Validity‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑­Number of questions of fact and several forbidding ground realities were required to be taken into consideration by the High Court before the matter involved was to be adjudicated‑‑‑Such controversies could not be resolved in the Constitutional jurisdiction of High Court‑‑‑High Court, however, instead of deciding the matter issued directions with consent of the parties and left the matter to the good sense and conscience of the parties to settle in a manner which should achieve the projected objective of the Authorities and would also cater to the interest of the petitioners as well as general public.

Ibad‑ur‑Rehman for Petitioner.

Sardar Muhammad Ghazi for Respondent.

2001 CLC4

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑I)

FEROZE SHAH through Legal Heirs and others‑‑‑Petitioners

versus

SADIQ HUSSAIN SHAH and others‑‑‑Respondents

R. O. R. No. 110 of 1993, decided on 24th October, 2000.

West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)‑‑‑

‑‑‑‑Ss. 10 & 15‑‑‑Redemption of mortgaged property‑‑‑One‑fourth share of land comprising of four Khasra numbers which was under usufructuary mortgage of petitioners was ordered to be redeemed‑‑‑Respondents filed application for restitution of said land and on their application Collector issued warrant of possession wherein possession of one Khasra number was ordered to be delivered to respondents‑‑‑Warrant of possession not being in conformity with earlier order of redemption by Collector, petitioners filed application to the effect that land described in warrant of possession being not in line with earlier decision of Collector, same could be corrected which was done by the Collector accordingly‑‑‑Subsequent order passed by Collector was merely to implement earlier decision and being procedural in nature, permission from next higher Authority for review of the order was not required.

PLD 1987 Lah. 537; PLD 1957 Lah. 70; PLD 1975 SC 331 and 1992 CLC 1349 ref.

Mian Sher Alain for Petitioners.

Ch. Muhammad Ahsan for Respondents.

2001CLC7

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

ABID HUSSAIN and 4 others‑‑‑Petitioners

versus

The COLLECTOR OF CUSTOMS (APPRAISEMENT)

and another‑‑‑Respondents

Writ Petition No.5169 of 1999, heard on 2nd April, 1999.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 2(kk)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑ Constitutional petition‑‑‑ Detention of vehicle‑‑‑Investigation against petitioner had not been completed, evidence had not been finally collected to conclude that custom duty had been evaded or that relevant law had been violated nor any matter had been referred for adjudication‑‑‑Restraint against use of vehicle in question, could not be justified especially when petitioners had undertaken not to create any charge against said vehicle or to dispose of the same and also to produce same as and when required by Customs Authorities‑‑­Petitioners, in view of the undertaking, were permitted to use vehicle pending investigation and adjudication of the case‑‑‑Petitioners would be bound by their undertaking to produce vehicle as and when required by Customs Authorities and would also not create any charge against the vehicle nor would dispose of the same during pendency of proceedings against them.

Shahryar Sheikh for Petitioners.

A. Karim Malik for Respondents.

Date of hearing: 2nd April, 1999.

2001CLC9

[Lahore]

Before Ch. Ijaz Ahmad, J

YAHYA GULZAR‑‑‑Petitioner

versus

PROVINCE OF PUNJAB through

Secretary Health, Government of Punjab, Lahore and 3 others‑‑‑Respondents

Writ Petition No.7979 of 2000, decided on 26th July, 2000.

(a) Constitution of Pakistan (1973)‑‑­

‑‑‑‑Preamble‑‑‑Constitution of Pakistan is based on trichotomy.

Zia‑ur‑Rehman's case PLD 1973 SC 49 and Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473 ref.

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

‑‑‑‑Art. 199‑‑‑Educational institution‑‑‑Prospectus‑‑‑Power to make changes in Prospectus of the educational institution by High Court‑-‑Validity‑‑‑High Court had power only to interpret the law and had no power whatsoever to take the role of policy‑maker‑‑‑Prospectus of educational institution could not be changed through verdict of High Court.

Zaheer Aslam's case 1995 CLC 1152 ref.

(c) Administration of justice‑‑‑

‑‑‑‑ Rule of law‑‑‑Existence of rule of law is paramount consideration.

Rifaqat Javid's case 1995 CLC 1155 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Change in Prospectus of educational institution by deleting / quota for doctors' children‑‑‑Validity‑‑‑Decision of deletion of quota, for doctors' children having been taken by Competent Authority same was within the realm of policy‑making and High Court had no jurisdiction to take the role of policy­maker.

Zameer Ahmad's case PLD 1975 SC 667 and Zameer Ahmad's case 1978 SCMR 327 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Where no malice was pointed out against the Authorities, Constitutional petition was not maintainable.

Saeed Nawaz's case PLD 1981 Lah. 371 ref.

(f) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Estoppel, principle of‑‑‑Admission in medical college‑‑‑Candidate had not challenged the vires of prospectus before appearing in the entry test for admission‑‑‑Candidate was estopped to file Constitutional petition against the entry test on the principle of estoppel.

Ghulam Rasool's case PLD 1971 SC 376 ref.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 201‑‑‑Judgment of Division Bench of High Court is binding upon Single Judge of High Court.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 185(3) & 189‑‑‑Leave granting order passed by Supreme Court is not "judgment".

Adam Khan Mirza's case PLJ 1975 SC 21 ref.

(i) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Principle of consistency‑‑­Applicability‑‑‑High Court having dismissed similar petition qua the same subject‑matter, refused to change its view on the principle of consistency and dismissed the fresh petition.

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9 ref.

(j) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 114‑‑‑Estoppel, principle of‑‑‑Admission in medical college‑‑­Candidate had not challenged the vires of prospectus before appearing in the entry test for admission‑‑‑Candidate was estopped to file Constitutional petition against the entry test on the principle of estoppel.

Akhtar Mehmood Khan for Petitioner.

Tahir Haider Wasti, Asstt. A. G. (on Court’s call)

2001 C L C 13

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑I)

MUHAMMAD IBRAHIM and another‑-=‑Petitioners

versus

ABDUL REHMAN and 8 others‑‑‑Respondents

R.O.R. No.2064 of 1997, decided on 12th September, 2000.

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

‑‑‑‑O. XVII, R.1‑‑‑Adjournment‑‑‑Sine die adjournment of case ‑‑‑Effect‑‑­Application for hearing, whether an application for review‑‑‑Non‑fixing date for hearing‑‑‑Effect‑ ‑‑Non‑fixing a date for hearing of the case for whatever reason was not an order which had determined any right qua the parties‑‑­Application seeking hearing of the case earlier adjourned sine die, was not an application for review.

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

‑‑‑‑S. 164‑‑‑Revision by Commissioner‑‑‑Contention that prior permission of the Board of Revenue was required before revision petition could be heard by the Commissioner, was repelled being misconceived.

(c) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑‑

‑‑‑--S. 4‑‑‑Inheritance‑‑‑Contention that pronouncement of Federal Shariat Court whereby provisions of S.4 of Muslim Family Laws Ordinance, 1961 were declared repugnant to Injunctions of Islam did not have retrospective effect, was valid‑‑‑Provision of S.4 of the Ordinance being applicable at the time of passing of order of Collector as well as Commissioner, heirs of deceased could not be deprived of their share of inheritance.

PLD 2000 FSC 1 ref.

Muhammad Mohsin for Petitioner.

Muhammad Zafar Chuadhry for Respondents.

2001 C L C 15

[Lahore]

Before Syed Zahid Hussain, J

Messrs ALPHA INSURANCE CO. LTD.

and another‑‑‑Petitioners

versus

Messrs MUSLIM COMMERCIAL BANK LTD.

and 2 others‑‑‑Respondents

Civil Revision No. 1590 of 2000, heard on 5th October, 2000.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 9 & 33‑‑‑Insurance Act (IV of 1938), S.44‑B‑‑‑Insurance claim‑‑­Arbitration‑‑‑Insured invoked the arbitration clause and appointed the arbitrator‑‑‑Insurance company in spite of receipt of notice neither appointed arbitrator nor joined the arbitration proceedings‑‑‑Award was given by the sole arbitrator‑‑‑Insurance company moved application under S.33 of Arbitration Act, 1940 for setting aside the award‑‑‑Trial Court rejected the application of‑ insurance company‑‑‑Validity‑‑‑When the insurance company rejected claim of the insured and did not allege any fraud, order of Trial Court dismissing the application was unexceptional.

The Eagle Star and British Deminions Insurance Company v. Dinanath and another AIR 1923 Bom. 249; Chiranjiv Lal and others v. The Tropical Insurance Co. Ltd. AIR 1952 Pb. 63; The Great American Insurance Co. Ltd. v. Bodh Raj AIR 1953 Pb. 50; Great American Insurance Co. Ltd. v. Dina Nath AIR 1957 Pb. 152; General Insurance Co. v. Khyber Textile Mills Ltd. and others PLD 1976 Kar. 540; The National Security Insurance Company Ltd. v. Messrs Pak Oriental Tapis and others 1992 MLD 215 and Ismail Abdul Sattar & Brothers v. Eastern Federal Union Insurance Company Ltd. PLD 1959 (W.P.) Kar. 179 ref.

M .M. Arshad for Petitioners.

Pervez I. Mir for Respondent No. 1.

Khalid Mehmood Khan for Respondent No.2.

Shahram Sarwar for Respondent No. 3.

Date of hearing: 5th October, 2000.

2001CLC19

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑I)

Mst. RABIA BIBI and others‑‑‑Petitioners

versus

Mst. AYESHA SUL‑TANA ‑‑‑Respondent

R.O.R. No.503 of 1994, decided on 24th October, 2000.

Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑S. 122‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.164‑‑‑Gift, validity of‑‑‑Allegation of the petitioner was that gift deed was a forged document which could not be incorporated in Revenue Record owing to the reasons that donor who had 23 Kanals of land could not alienate 20 Kanals out of the said holding; and that donee was not an owner in the revenue estate‑‑‑Non‑delivery of possession to donee was also cited as ground for non‑completion of gift deed‑‑‑Revenue Authorities were not competent to quash registered deed and petitioners who had disputed validity of gift deed could take recourse to Civil Court for obtaining declaration based on said point agitated before Member, Board of Revenue in revision, to prove that document of gift deed could not be implemented on the ground of forgery‑‑­Delivery of possession by donor to donee, was not prerequisite for validity of gift in all cases‑‑‑If possession could not be delivered because same was not with donor' at the time of the execution of gift deed or for any other reason, but donor did all that he could do to divest himself of the ownership of gifted property, non‑delivery of possession would not render gift as invalid.

PLD 1963 W.P. (Rev.) 12; PLD 1974 Lah. 208; 1993 CLC 1084 and 1986 CLC 118 ref.

Ch. Ihsan‑ul‑Haq for Petitioners.

Ch. Nasir Ahmad Khan for Respondents.

2001 C L C 24

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SARWAR and 12 others‑‑‑Petitioners

versus

THE MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 25 others‑‑‑Respondents

Writ Petition No. 1482 of 1984, heard on 25th September, 2000

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Principle of consistency—­Applicability ‑‑‑Controversy between the parties was the same and High Court had disposed of earlier Constitutional petition with the observation that the disputed question of fact could not be decided in the Constitutional jurisdiction‑‑‑Keeping in view the principle of consistency, High Court declined to take different view in the fresh petition‑‑‑Where alternate remedy by filing civil suit before competent Court was available to the petitioners, Constitutional petition was not maintainable.

Muhammad Muzaffar Khan's case PLD 1959 SC 9 and Muhammad Younas's case 1993 SCMR 618 fol.

Mst. Alam Khatoon's case PLD 1965 Lah. 73; Mst. Umtul Bano and others' case 2000 SCMR 81; PLD 1982 SC 723; Abdul Ghafoor and others' case PLD 1985 SC 407; 1983 SCMR 618; Benedict F.D. Souza's case 1989 SCMR 918 and Shah Jehan and others' case 2000 SCMR 88 ref.

Ch. Khurshid Ahmad for Petitioners.

Raja Shafqat Abbasi for Respondents.

Date of hearing: 25th Sept‑tuber, 2000.

2001 CLC28

[Lahore]

Before Karamat Nazir Bhandari, J

IJAZ AHMAD‑‑‑Appellant

versus

GENERAL MANAGER (PERSONNEL), SUI NORTHERN GAS PIPELINES LIMITED, LAHORE and 3 others‑‑‑Respondents

Writ Petition No.21940 of 1997, decided on 7th April, 2000.

Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Appointment of disabled person‑‑‑Petitioner/disabled person had prayed for a writ of mandamus to appoint him against one of the posts reserved for disabled persons‑‑‑Contention of company was that at present no vacancy being available for disabled persons, It was unable to accommodate the petitioner-----In face of stand taken by respondent-company that no vacancy against disabled quota was available, onus to prove otherwise fell upon petitioner, but petitioner could not bring on record anything to disprove Constitutional jurisdiction of High Court, but could invoke jurisdiction of National or Provincial Council which was proper forum to see that the relevant law was duly implemented.

Muhammad Amin Javed for Petitioner.

Muhammad Saleem Sehgal for Respondents Nos. 1 and 2.

Date of hearing: 14th March, 2000.

JUDGMENT

It is asserted by the petitioner that he is a disabled person and applied in 1994 to respondent No .l for a job as helper against the disabled quota, but this job has been illegally denied. Petitioner earlier filed writ petition in this Court, in which respondent assured that petitioner will be duly accommodated but that assurance never materialised. Petitioner prays for a writ of mandamus to appoint the petitioner against one of the posts reserved for disabled persons.

1. In the initial comments filed by respondents Nos.l and 2, position taken by them was that in lieu of non‑employment of disabled person, the company has been making contribution as required under section 11 of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 and therefore, the company cannot be said to have violated any provisions of law. In the additional comments filed by the respondents it is pleaded that at present there is no vacancy for disabled persons and as such the company is unable to accommodate the petitioner. The assertion that the law has fixed 2% quota for disabled persons, is denied and is stated that it is an executive order of the Prime Minister and 2% quota be fixed. It is claimed that total number of employees in the company is 7161. Out of which 79 disabled persons have already been employed in terms of section 10 of the said Ordinance.

2. During the course of hearing learned counsel for the petitioner asserted that quota of disabled persons has been enhanced to 2°% by way of amendment in the law. However, he could not produce the amendment. It is actually the Prime Minister's directive that quota be enhanced to 2%. Under section 10 of the Ordinance the requirement is that not less than 1 % of the total number of persons shall be disabled persons, whose names have been registered with the Employment Exchange of the area. It is, therefore, not correct that the law has enhanced the quota to 2%.

3. In the face of the stand taken by the respondent‑company that there is no vacancy against disabled quota, the onus to prove otherwise fell upon the petitioner. There is no material on record to disprove the assertion of the company. The petitioner, therefore, has to fail in this Court. However, that is not the end of the matter. Under the Ordinance, the machinery has been provided to see that law is duly implemented. It is for the National or the Provincial Council to examine such complaints and to investigate whether the company or the employer is duly complying with the provisions of the Ordinance or not. If so advised the petitioner may invoke such jurisdiction of the National or the Provincial Council.

4. This petition, in the circumstances, is disposed of with no order as to costs. This Court, however, expects that as disabled human being, the petitioner deserves. full sympathetic treatment from respondents Nos. l and 2. It is expected that treatment will not be denied to the petitioner.

H.B.T./I‑16/L Order accordingly.

2001 CLC30

[Lahore]

Before Syed Zahid Hussain, J

ALLAH DITTA through Legal Heirs and another‑‑‑Appellants

versus

SAEED AHMAD and others‑‑‑Respondents

Regular Second Appeal No.965 of 1969, heard on 31st March, 2tW.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXIII, R.3, Ss. 96(3) & 100‑‑‑Suit for possession decreed on basis of compromise‑‑‑Appeal‑‑‑Defendants filed appeal against said decree contending that some of the defendants who were minors were not duly represented before Trial Court and that defendants being illiterate persons,, had no proper opportunity of understanding the import of compromise which had adversely affected their rights‑‑‑None else other than two defendants had challenged compromise by filing appeal and matter was not challenged by them before Trial Court which recorded the compromise‑‑‑Both defendants who were represented by their counsel had accepted compromise, made their statements in Court in presence of their counsel before Court decided the matter on basis of the compromise‑ ‑‑Appellants, in circumstances, could not take advantage of non‑representation of other defendants, who had not even chosen to challenge compromise‑‑‑Other defendants, among whom some were minors and were represented by guardian ad litem who otherwise had not challenged compromise, were merely pro forma defendants whose share was not in dispute and were not even necessary parties‑‑‑Minors who, at the relevant time were minors, had since become majors, .had not challenged the compromise‑‑‑Attempt of defendants to challenge compromise being afterthought, their appeal was rightly dismissed.

Muhammad Ismail v. Muhammad Ashraf PLD 1982 Lah. 197; Muhammad Sadiq Gondal v. Additional District Judge and others 1986 CLC 326; Moulvi Zahir‑ul‑Said Alvi v. Rai Sahib Seth Lachhmi Narayan AIR 1931 PC 107; Sajjad Hussain v. Musarat Hussain Shah and others 1989 SCMR 1826 and Muhammad Hussain Shah and others v. Sajjad Hussain and another 1989 SCMR 1752 ref.

Ch. Muhammad Muzammil Khan for Appellants.

Nemo for Respondent No. 1.

Date of hearing: 31st March, 2000.

2001 C L C 47

[Lahore]

Before Ch. Ijaz Ahmad, J

BABAR JAVED ‑‑‑ Petitioner

versus

PRINCIPAL, PUNJAB MEDICAL COLLEGE, FAISALABAD and 2 others‑‑‑Respondents

Civil Revision No.574 of 2000 and Writ Petition No.17293 of 1998, heard on 19th May, 2000.

Educational institution‑‑‑

‑‑‑‑ Cancellation of admission‑‑‑Admission obtained by candidate in Medical College under Self‑Finance Scheme was cancelled on the ground that candidate had obtained 802 marks in F.Sc. Examination instead of 812 marks‑‑‑No allegation was levelled against candidate that he had obtained certificate by using unfair means as Board of Intermediate and Secondary Education did not allege any allegation of fraud or misrepresentation against the candidate, except that he had obtained 802 marks and not 812 marks in examination‑‑‑Sufficient seats were lying vacant under Self‑Finance Scheme due to non‑deposit of amount whereas candidate had deposited required amount which had been utilized by the College Authorities‑‑‑Candidate was studying in final year and had to appear in final examination‑‑‑Board of Intermediate and Secondary Education had admitted that candidate had not obtained certificate by using unfair means, but it was inadvertent wrong committed by official of Board in grand total‑‑‑Sufficient seats which were lying vacant were not offered by Authorities to eligible candidates‑‑­Candidate could not be penalized by inaction of Public Functionaries who did not offer said seats to other eligible candidates on merit list of Self-­Finance Scheme‑‑‑Candidate was allowed to continue his studies by the High Court in the interest of justice and fairplay and to save career of candidate who had successfully passed all examinations and was to appear in final examination.

Summer Prevez's case PLD 1971 SC 838; Faiza Malik's case PLD 1992 SC 324 and Ahmed Latif's case PLD 1994 Lah. 3 ref.

Mahmood A. Sheikh for Petitioner.

Dr. Qazi Mohy‑ud‑Din, Legal Advisor and Malik Akhtar Hussain Awan, Addl. A.‑G. for Respondents.

Date of hearing: 19th‑May, 2000.

2001CLC51

[Lahore]

Before Sheikh Abdur Razzaq, J

Mst. AKBARI BEGUM‑‑‑Petitioner

versus

Haji MUHAMMAD AYUB‑‑‑Respondent

Civil Revision No.593 of 1996, heard on 1st May, 2000.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 2(a) & 6‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for pre­emption ‑‑‑Competence‑‑‑Suit property being situated within urban area of Municipal Committee, Trial Court dismissed suit holding that the property could not be pre‑empted under S.2(a) of Punjab Pre‑emption Act, 1991‑‑­Appellate Court reversed findings of Trial Court finding that transaction was competent as S.2(a) of Punjab Pre‑emption Act, 1991 had been declared against the Injunctions of Islam by Supreme Court as per its judgment (PLD 1994 SC 1)‑‑‑Validity‑‑‑Provisions of S.2(a), Punjab Pre‑emption Act, 1991 no doubt had been declared by Supreme Court as repugnant to Injunctions of Islam but transaction took place about two years prior to announcement of said judgment of Supreme Court‑‑‑Provisions of S.2(a) of Punjab Pre­emption Act, 1991 being in field on the date of sale of land in dispute as well as on date of filing of suit, Trial Court was justified in dismissing suit as said property was not pre‑emptible at the relevant time‑‑‑Judgment and decree passed by Appellate Court were set aside and those of Trial Court stood restored.

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 and Qazi Muhammad Shahab‑ud­-Din v. Muhammad Qasim 1996 CLC 480 ref.

Abdul Shakoor Paracha for Petitioner.

Zaheer Ahmad Qadri for Respondent.

Date of hearing: 1st May, 2000.

2001 C L C 54

[Lahore]

Before Ghulam Mehmood Qureshi, J

MUHAMMAD HUSSAIN ‑‑‑Petitioner

versus

RAJ BIBI and 2 others‑‑‑Respondents

Writ Petition No.347 of 2000, heard on 31st May, 2000.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 5, Sched., 14 & 19‑‑‑Court Fees Act (VII of 1870), S.7(ii)‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for recovery of dowery articles‑‑‑Deficiency in court‑fee‑‑‑Suit for recovery of dowery articles by wife having been decreed, husband filed appeal against same which was dismissed on the ground that he had failed to make up deficiency in court‑fee as per direction of the Appellate Court‑‑‑Contention of husband was that suit for recovery of dowery being included in Sched. of West Pakistan Family Courts Act, 1964, no court‑fee was required to be paid and court‑fee of R.15 having been affixed on plaint as well as on memo. of appeal no further court‑fee was required on memo. of appeal‑‑‑Plaint was rightly stamped according to S.19 of West Pakistan Family Courts Act, 1964 and provisions of S.7(ii) of Court Fees Act, 1870, which were applicable to the plaint regarding maintenance and annuities etc. were not applicable to appeal arising out of decree passed by Family Court and court‑fee on memo. of appeal was to be paid according to the value of subject‑matter of appeal determined on date of decree‑‑‑Amount payable under decree which was subject‑matter of appeal, exceeded Rs.25,000, court‑fee was to be paid on decretal amount which was subject‑matter of appeal‑‑‑Husband having failed to make up deficiency in court‑fee as per direction of the Court his appeal was rightly dismissed‑‑‑Husband had prayed that if he was granted time to make up deficiency in court‑fee, he would make up the deficiency‑‑­Respondent having no objection if opportunity was granted to petitioner for making up deficiency in court‑fee and his appeal be decided on merits, order dismissing appeal was set aside and appeal before Appellate Court was deemed to be pending and husband was ordered to make up deficiency in specified period and to decide appeal on merits:

Naqash Ahmad and another v. Muhammad Sharif and another PLD 1996 Lah. 436 ref.

Kh. M. Tahir Majid for Petitioner.

Hafiz Khalil Ahmad for Respondents.

Date of hearing: 31st May, 2000.

2001 C L C 57

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. AISAN‑‑‑Petitioner

versus

MANAGER, AGRICULTURAL DEVELOPMENT BANK

OF PAKISTAN, CHUNIAN, DISTRICT KASUR

and 2 others‑‑‑Respondents

Writ Petition No.8532 of 2000, decided on 15th May, 2000.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑Matter raised by petitioner in Constitutional petition was a contractual matter which had arisen out of an agreement executed between parties of their own sweet­will‑‑‑Jurisdiction of High Court under Art.199 of Constitution of Pakistan (1973), would not be attracted.

Mumtaz Masood's case 1994 SCMR 2287; The Chandpur Mills Ltd. v. The District Magistrate, Tippera and others PLD 1958 SC 267; Messrs Momin Motor Company v. The Regional Transport Authority, Dacca and others PLD 1962 SC 108 ref.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Arts. 199 & 203‑G‑‑‑Constitutional petition‑‑‑Charge of interest‑‑­Validity‑‑‑Charge of interest was though not only a violation of Holy Qur'an and Sunnah, but was also against judgment of Shariat Appellate Bench of Supreme Court, High Court, in view of Art. 203‑G of Constitution of Pakistan (1973) had no authority under law to determine the matter‑‑­Interest/Riba no doubt had been declared un‑Islamic by Supreme Court but past and closed transactions were not to be re‑opened.

PLD 1992 FSC l and Muhammad Aslam Khaki's case PLD 2000 SC 225 ref.

Ghulam Nabi Bhatti for Petitioner.

2001 C L C 60

[Lahore]

Before Sheikh Abdur Razzaq, J

ABDUL RASHID and another‑‑‑Appellants

versus

SULEMAN and 4 others‑‑‑Respondents

Regular Second Appeals Nos.810, 809, 820 and 821 of 1979, heard on 20th April, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 9‑‑‑Suit for possession‑‑‑Plaintiffs had alleged that defendant had encroached upon their land and had dispossessed them from their land‑‑‑Trial Court dismissed suit, but Appellate Court had decreed suit on basis of evidence on record‑‑‑Plaintiff had proved by producing oral as well as documentary evidence on record like Jamabandi and Khasra Girdawari that they were owners in possession of suit land and that defendants had encroached upon said land and had dispossessed them from the land‑‑­Defendants had failed to bring on record any evidence to rebut oral and documentary stand of plaintiffs‑‑‑Evidence on record had proved that plaintiffs had been in possession of their respective land since years‑‑‑Trial Court, in circumstances, was not justified to dismiss the suit‑‑‑Appellate Court had rightly set aside judgment and decree of Trial Court‑‑‑Judgment of Appellate Court based on evidence on record, could not be interfered with.

Munshi and 2 others v. Muhammad Shafi and 3 others Law Notes 1966 Lah. 58; Fazil and others v. Manzoor Hussain and others PLD 1979 Note 9 at p.6 and Abdullah and others v. Muhammad Nawaz and others 1994 SCMR 83 ref.

Tajamal Murad for Appellants.

Syed Qalb‑i‑Hassan for Respondents.

Date of hearing: 20th April, 2000.

2001 C L C 65

[Lahore]

Before Tanvir Ahmad Khan, J

NEW KHAN TRANSPORT C0. LTD. ‑‑‑Petitioner

versus

PROVINCE OF PUNJAB through Secretary Transport, Lahore

and 4 others‑‑‑Respondents

Writ Petitions Nos. 16241 and 20431 of 2000 and 18520 of 1999, decided on ).8th September, 2000.

(a) Illegal order‑‑‑

‑‑‑ Order having illegal base/foundation‑‑‑Effect‑‑‑Where base/foundation of any order is illegal then whole superstructure built thereupon cannot be sustained.

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

----‑Art. 199‑‑‑Constitutional petition‑‑‑Allotment of bay at general business‑‑‑Disputed bay was allotted to the respondent on direction 'of the Minister ‑‑‑Validity‑‑‑Allotment of bays was not regulated by any statutory rule and it was merely a contractual matter governed by the terms and conditions under which the same was allowed‑‑‑Nobody had a vested right to claim a particular bay‑‑‑Orders for allotment of bay so passed by the Authority were without lawful authority and of no legal effect and the same were set aside‑‑‑Matter was remanded to the Authority for a decision afresh in circumstances.

Mrs. Nasira Iqbal for Petitioner.

Syed Kalim Ahmad Khurshid, Khawaja Muhammad Afzal, Mrs. S~lma Malik, A.A.‑G. for Respondents.

Date of hearing: 12th September, 2000.

2001 C L C 78

[Lahore]

Before Dr. Munir Ahmad Mughal, J

Syed NAJMUL HASSAN‑‑‑Petitioner

versus

Mst. NABEELA TABASSUM and 3 others‑‑‑Respondents

Writ Petition No. 10933 of 1999, heard on 14th September, 2000.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art.199 ‑‑‑ Constitutional petition‑‑‑Maintenance allowances, claimed by wife and minor daughter‑‑­Appropriateness‑‑‑Suit filed by wife and minor daughter was decreed by Family Court‑‑‑Lower Appellate Court modified the decree and fixed a sum of Rs.2,000 and Rs.1,000 per month as maintenance for wife and minor daughter respectively‑‑‑Validity‑‑‑Where monthly income of the petitioner was Rs.6,000 per month, Lower Appellate Court had correctly fixed the maintenance which was proper considering the financial position of the petitioner‑‑No illegality having been committed by the Lower Appellate Court in exercise of its jurisdiction, Constitutional petition was dismissed.

Respondent in person.

Date of hearing: 14th September, 2000.

2001 CLC81

[Lahore]

Before Syed Zahid Hussain, J

JAMAL‑UD‑DIN‑‑‑Petitioner

versus

MEMBER, BOARD OF REVENUE and 4 others‑‑‑Respondents

Writ Petition No.217/R of 1997, heard on 11th September 2000.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑S. 10‑‑‑Permanent transfer deed, issuance of‑‑‑Powers of Settlement Authorities to interfere in allotment‑‑‑Subsequent to issuance of title documents‑‑‑Extent‑‑‑After the issuance of title documents i.e. Permanent transfer Deed, the property absolutely vests in the transferee and the Settlement Authorities become functus officio, subject to fraud or forgery.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S. 2(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Re-opening of matter‑‑‑Permanent Transfer Deed was issued in favour of the petitioner on 24‑4‑1962‑‑‑Settlement Authorities in the garb of application for inspection of the premises prepared a report, dated 24‑9‑1997, whereby the premises were stated to be owned by the Settlement Department and not transferred to the petitioner‑‑‑ Validity‑‑‑Authorities did not act in accordance with law in re‑opening of the matter on the basis of such application‑‑‑Report prepared by the Settlement Authorities was without lawful authority.

Muhammad Ali Hassan and others v. Deputy Settlement Commissioner and others 1991 CLC Note 66 at p.50; Province of Punjab and others v. Mufti Abdul Ghani PLD 1985 SC 1; Ali Muhammad v. Haji Hussain and 2 others PLD 1975 Kar. 971; S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others PLD 1971 SC 669; Mst. Hajiani Fatima Bai and 6 ethers v. Ibrahim and 13 others PLD 1972 Kar. 610; Sh. Fazal‑ur‑Rehman v. Pakistan through The Secretary, Ministry of Works and Rehabilitation, Islamabad 1987 SCMR 1036; Bilqis Begum and others v. Fazal Muhammad and others 1987 SCMR 1441; Khawaja Bashir Ahmad v. The Additional Settlement Commissioner, Rawalpindi and others 1991 SCMR 1604 and Dost Muhammad v. Member, Board of Revenue (Settlement and Rehabilitation Wing) and others 1991 SCMR 84 ref.

Shaikh Khalil‑ur‑Rehman for Petitioner.

Khan Muhammad Younas Khan for Respondents.

Date of hearing: 11th September, 2000.

2001 C L C 97

[Lahore]

Before Faqir Muhammad Khokhar, J

MUHAMMAD HANIF‑‑‑Appellant

versus

Raja MUHAMMAD ASLAM KHAN and 8 others‑‑‑Respondents

Regular Second Appeal No.552 of 1971, decided on 20th December, 1999.

(a) Lunacy Act (IV of 1912)‑‑‑

‑‑‑‑S. 3(5)‑‑‑"Lunatic"‑‑‑Connotation‑‑‑Person of unsound mind as well as incapable of managing himself and his affairs was a "lunatic".

(b) Lunacy Act (IV of 1912)‑‑‑

‑‑‑‑S. 3(5)‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal‑‑‑ Plea of lunacy‑‑‑Suit was filed assailing alienation of suit property on the ground that the appellant was lunatic and any transaction on behalf of the appellant was void transaction‑‑‑Trial Court decreed the suit‑where--- As Lower Appellate Court dismissed the same as to the Court, the appellant was not a lunatic and guardian of appellant was appointed in oblivion of the provisions of Lunacy Act, 1912‑‑‑Validity‑‑‑Where the appellant appeared in Trial Court voluntarily as a witness, the judgment of Lower Appellate Court was not open to interference.

Muhammad. Munir Paracha for Appellants.

Ajmal Kamal Mirza for Respondents.

Date of hearing: 20th December, 1999.

2001 CLC 101

[Lahore]

Before, Syed Zahid Hussain, J

ARIF MANSOOR AHMAD‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Writ Petition No. 15797 of 1995, heard on 12th June, 2000.

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

‑‑‑‑O. I, R.10 & O. XX, R. 13‑‑‑Succession Act (XXXIX of 1925), S.278‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Administration suit‑‑‑Impleading as necessary party to proceedings in the suit‑‑‑Person not impleaded in proceedings for Succession Certificate, whether could be allowed to be impleaded in administration suit‑‑‑Petitioner had invested some money in the business of the deceased and was not allowed to be impleaded in the proceedings for Succession Certificate‑‑‑Trial Court, during the pendency of administration suit qua property of the deceased, impleaded the petitioner as a necessary party----Lower Appellate Court reversed the order of the Trial Court for the reason that he was not allowed to join the proceedings for Succession certificate ‑‑‑Validity‑‑‑ Petitioner had come out with a certain claim and the same could only be adjudicated upon if he had appeared before the Court as a ply and was allowed opportunity to substantiate his claim‑‑‑Petitioner could not be non-­suited for the reason that his application for being impleaded as a party to the proceedings for the grant of Succession .Certificate was disallowed‑‑‑Trial Court had rightly allowed the petitioner to be impleaded as a party to the proceedings in administration suit‑ ‑Lower Appellate Court had erred in law in rejecting his application and setting aside the order of the Trial Court‑‑­Order passed by the Lower Appellate Court was illegal and the same was set aside in circumstances.

(b) Succession Act (XXXIX of 1925)‑‑‑

‑‑‑‑Ss. 278 & 273‑‑‑Administration suit and grant of Succession Certificate proceedings‑‑‑Distinction‑‑‑In administration suit the claims of the respective claimants/contestants are to be decided on the basis of the material brought on record in support of their respective pleas‑‑‑Scope of the two proceedings is quite distinct as proceedings for the certificate are of summary nature, whereas the other is a regular suit.

C.M. Sarwar for Petitioner.

Masood A. Malik for Respondent.

Date of hearing: 12th June, 2000.

2001 C L C 113

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑I)

MUHAMMAD ASHIQ and 5 others‑‑‑Petitioners

versus

MUHAMMAD USMAN and 2 others‑‑‑Respondents

R. O. R. No. 1155 of 1998, decided on 3rd August, 2000.

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

‑‑‑‑Ss. 135 & 164‑‑‑Partition of land‑‑‑Revision‑‑‑Revenue Officer in ex parte proceedings accepted the words of respondents in absence of petitioner who was co‑sharer in land in dispute‑‑‑Revenue Courts were duly bound to strictly adhere to requirements of law‑‑‑Even if petitioners who were co­sharers in land were absent intentionally or otherwise, Revenue Officer was bound to act in accordance with provisions of law‑‑‑Revenue Officer was required to consider all aspects of partition such as title in property to be decided, possession of each co‑sharer, classification of land, proximity of any portion of land near Abadi Deh before drawing up scheme of partition‑‑­Absence of co‑sharers from partition proceedings could not in any way absolve Revenue Officer from his laid down duty‑‑‑Order of Revenue Officer upheld by Additional Commissioner whereby partition of land was allowed on basis of Wandas proposed by respondents, was bad in law‑‑‑Such order was set aside in revision and case was remanded to be decided afresh.

Ghulam Mustafa Shah for Petitioners.

Muhammad Ahmad Ali for Respondents.

2001 C L C 115

[Lahore]

Before Ch. Ijaz Ahmad

and Mian Saqib Nisar, JJ

GHULAM HAIDER and 4 others‑‑‑Appellants

versus

MEMBER, BOARD OF REVENUE/CHIEF

SETTLEMENT COMMISSIONER, OLD ANARKALI

LAHORE and 11 others‑‑‑Respondents

Intra‑Court Appeal No.495 of 1999 in Writ Petition No. 149 of 1996, decided on 26th June, 2000.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Laches, principle of‑‑‑Applicability‑‑­Disputed property was finally allotted on 2‑2‑1993, and the order of such allotment was challenged in Constitutional jurisdiction on 9‑9‑1996 Effect----Constitution was rightly dismissed on the principle of laches.

Khiali Khan's case PLD 1997 SC 304 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Substituting finding of Tribunal‑‑‑Scope‑‑‑High Court has no jurisdiction to substitute its own finding in place of the finding of Tribunal in exercise of Constitutional jurisdiction.

Mussaduq's case PLD 1973 Lah. 600 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Petitioner was an unauthorised occupant of disputed property‑‑‑Unauthorised occupant being not an aggrieved person, relief through extraordinary Constitutional jurisdiction could not be granted to him.

Khiali Khan's case PLD 1997 SC 304 ref.

(d) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)----

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Unauthorised occupants of disputed land‑‑‑Disputed land was not available as residue property since the same had already been allotted to the predecessors of respondents by the Competent Authority and that order of allotment was upheld by High Court in an earlier Constitutional petition‑‑­Petitioner claimed to be occupants of the land and wanted the same to be allotted to them‑‑‑Settlement Authorities declined the claim of the petitioner‑‑‑Validity‑‑‑Where the disputed land was not available under S.3 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, such property could not be disposed of as a residual property‑‑‑Notified Officer was justified to non‑suit the petitioner and High Court had rightly refused to exercise discretion in favour of the petitioners as they were unauthorised occupants of the disputed property‑‑‑Petitioners having not approached the High Court with clean hands, no illegality or irregularity was committed by the High Court to refuse the relief under Art. 199 of the Constitution of Pakistan.

Allah Dixta and. others' case 1983 CLC 219; Muhammad Din's case PLD 1991 SC 1 and Nawabzada Ronaq Ali's case PLD 1973 SC 236 ref.

Malik Noor Muhammad Awan for Appellants.

Qazi Khurshid Alam for Respondents Nos.3 to 12.

2001 C L C 120

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑1)

ABDUL QAYYUM KHAN‑‑‑Petitioner

versus

AHMAD KHAN and another‑‑‑Respondents

R.O.R. No. 1288 of 1989, decided on 15th August, 2000.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss. 4 & 10‑‑‑Tenancy under Horse/Mule Breeding Scheme‑‑‑Nature and grant of‑‑‑Such tenancies being scheduled tenancies, were not heritable‑‑­Government was under no obligation to grant lease to heirs of deceased tenant‑‑‑Such tenancy could be granted to anyone of the heirs of deceased tenant who was considered to be fully capable of satisfactorily carrying out conditions of grant in all respects for the unexpired period of lease‑‑­Discretion had to be exercised in terms of the report of District Remount Officer about suitability of any of the heirs of deceased tenant.

PLD 1976 SC 435, NLR 1979 (Revenue) 113 and Manual of Colonization Laws issued between 1942 to 1963 ref.

Muhammad Anwar Bhinder and Muhammad Hanif Niazi for Petitioner.

Malik Ghulam Siddique Awan for Respondents.

2001 C L C 130

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑I)

SARDAR ALI ‑‑‑Petitioner

versus

SAJID NAZIR and 2 others‑‑‑Respondents

R.O.R..No.2203 of 1991, decided on 19th September, 2000.

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

‑‑‑‑S. 163‑‑‑Review‑‑‑Scope‑‑‑Commissioner, Collector and Assistant Collector had been empowered under S.163 of West Pakistan Land Revenue Act, 1967 to review any order passed against any aggrieved person on an application made within stipulated period subject to proviso to S.163(2)(d), West Pakistan Land Revenue Act, 1967 to the effect that an order against which an appeal or revision had been preferred, would not be reviewed.

PLD 1985 Rev. 237 ref.

Muhammad Nawaz Kasuri for Petitioner.

Sardar Shaukat Ali for Respondent No. 1.

2001 C L C 133

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD IQBAL‑‑‑Petitioner

versus

Mst. TANVEER ASMAT and others‑‑‑Respondents

Writ Petition No.2516 of 1999, heard on 15th December, 1999.

Guardians and Wards Act (VHI of 1890)‑‑‑

‑‑‑‑Ss. 12 & 25‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Temporary custody of minor‑‑‑Father of minor alongwith petition for custody of minor, had also filed application under S.12 of Guardians and Wards Act, 1890 for temporary custody of the minor‑‑‑Trial Court on the said application ordered that on each and every date of hearing minor should be produced in Court and handed over to father for four hours‑‑‑Trial Court, on review, modified the order to the effect that minor should be given in custody of father for eight hours in one day of each month‑‑‑Appellate Court on appeal by another set aside subsequent order passed by Trial Court on review petition and restored the previous order of Trial Court‑‑‑Validity‑‑‑' Age of minor being a bit more than one and half year, handing him to father for eight hours in a month, was not reasonable‑‑‑Minor being of very tender age, previous order passed by Trial Court was justified and Appellate Court had rightly restored the previous order setting aside subsequent order passed by the Trial Court.

Mst. Nasera Begum v. VIth Additional District Judge, Karachi and 2 others PLD 1985 Kar. 645; Mst. Naushaba v. Dr. Nasim and others 1987 SCMR 974 and Raja Qureshi v. Mrs. Yasmeen Qureshi PLD 1981 Kar. 61 ref.

Sardar Zaheer Ahmad Khan for Petitioner.

Muhammad Siddique Awan for Respondents.

Date of hearing: 15th December, 1999.

2001 C L C 136

[Lahore]

Before Ch. Ijaz Ahmad, J

ANJUMAN TAJRAN, OUTSIDE DELHI GATE, LAHORE and 15 others‑‑‑Appellants

versus

CHIEF ADMINISTRATOR OF AUQAF, PUNJAB AWAN‑E‑AUQAF and another‑‑‑Respondents

First Appeal from Order No. 173 of 2000, heard on 7th July, 2000.

(a) Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑‑‑Ss. 11 & 12‑‑‑Civil Procedure Code (V of 1908), O.XX, R.5‑‑‑Appeal‑‑­Notification of Waqf property‑‑‑Petition under S.l1 of Waqf Properties Ordinance, 1979, filed by the appellant was dismissed by Trial Court without discussing the evidence on record‑‑‑Validity‑‑‑Where judgment of the Trial Court was given without discussing the evidence on record, such judgment was not in accordance with the mandatory provisions of O.XX, R.5 of C.P.C.‑‑‑Judgment was set aside and the case was remanded for decision afresh after hearing the parties and in accordance with the provisions of O.XX, R.5, C.P.C.‑‑‑High Court declined to give findings on the issues between the parties so that parties might not be deprived of remedy of appeal before High Court‑‑‑Appeal was allowed accordingly.

(b) Judgment‑-----

‑‑‑‑ Judgment is the result of accumulative effect on the mind of the Court that finds expression in its final opinion‑‑‑Court is obliged to consider the evidence present on record, judge its value .in the light of legal principles applicable thereto and then pronounce its final opinion.

(c) Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑S. 11‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑‑Petition under S.11 of Punjab Waqf Properties Ordinance, 1979‑‑‑Applicability of provisions of Civil Procedure Code, 1908‑‑‑Provisions of C.P.C. are applicable to such proceedings.

Abdul Latif Dar for Appellants.

Nasim Ahmed Khan and Asad Ali Shah Gilani for Respondents.

Date of hearing: 7th July, 2000.

2001 C L C 138

[Lahore]

Syed Najam‑ul‑Hassan Kazmi and Nasim Sikandar, JJ

GHULAM RASOOL‑‑‑Appellant

versus

BASHIR AHMAD and 4 others‑‑‑Respondents

Regular First Appeal No.1 of 1988, decided on 11th October, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement of sale‑‑‑Defendant vendor denied execution of agreement, but plaintiff vendee proved execution of said agreement by producing marginal witnesses of sale agreement and deed‑writer‑‑‑Marginal witness had proved beyond doubt that sale‑deed was prepared and registered with consent of vendor and that earnest money was exchanged between the parties‑‑‑Deed‑writer had also proved execution of document by stating that document in question was prepared under instructions of vendor who had thumb‑marked and signed the same and statements of said witness remained unshaken in cross‑examination‑‑­Vendees, on production of said two witnesses, had sufficiently discharged onus to prove execution of agreement of sale which otherwise was a registered document‑‑‑Vendor, who had taken a counter‑version to the effect that he intended to execute lease deed and not sale‑deed, was legally bound to prove the same, but he could not do so by any evidence‑‑‑Execution of agreement of sale having been proved beyond doubt, suit was rightly decreed by Trial Court.

Mian Muhammad Ashraf Salimee for Appellant.

Ch. Abdul Ghani and Ch. Masood Ahmad Dogar for Respondents.

Date of hearing: 11th October, 1999.

2001 C L C 142

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑1)

MAHBOOB KHAN‑‑‑Petitioner

versus

ALAM KHAN and another‑‑‑Respondents

R.O.R. No. 137 of 1998, decided on 3rd July, 2000.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑Ss. 11 & 13‑‑‑Consolidation proceedings‑‑‑Revision petition before Board of Revenue‑‑‑Board of Revenue remanded case to Additional Commissioner for fresh decision after hearing parties‑‑‑Respondent having failed to appear before Additional Commissioner, case was consigned to record for non­appearance‑‑‑Validity‑‑‑Direction of Member, Board of Revenue being for decision of case afresh after hearing parties, in case any of parties was not present, Additional Commissioner to whom case was remanded, ought to have adverted to facts of case and law on the subject and passed comprehensive order after hearing whichever party was present before him‑‑­Order passed by Additional Commissioner was set aside with direction that case would be deemed to be pending before Additional Commissioner who would decide same afresh after hearing parties, who might choose to appear before him.

Raja Irshad-ul-Haq Kiani for Petitioner.

G.H.Khan for respondent.

2001 C L C 145

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD RAFI‑‑‑Appellant

versus

GOVERNMENT OF PAKISTAN‑‑‑Respondent

Regular Second Appeal No. 128 of 1973, heard on 7th October, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 100‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Second appeal‑‑‑Delay condonation of‑‑‑Appeal which was to be filed within stipulated period o: ninety days, was filed after 527 days‑‑‑Appellant had sought condonation of the delay contending that he was suffering from asthma and in support of his claim had annexed a photostat copy of medical certificate of a Doctor‑­Appellant had not annexed any other document to prove that he was unable to approach his counsel for filing the appeal‑‑‑Validity‑‑‑Delay of each and every day in filing appeal had to be explained by appellant, but he had failed to do so‑‑‑Appellant having failed to prove that he was prevented by any sufficient cause to file appeal within stipulated period of ninety days application for condonation of delay was devoid of any force and appeal was liable to be dismissed being barred by time.

Ch. Sadiq Muhammad Warraich for Appellant.

Ch. Afrasiab Khan, Standing Counsel for Respondent.

Date of hearing: 7th October, 1999.

2001 C L C 153

[Lahore]

Before Ghulam Mahmood Qureshi, J

ALI MUHAMMAD and others‑‑‑Appellants

versus

MUHAMMAD TUFAIL and others‑‑‑Respondents

Writ Petition No.3670 of 2000, decided on 29th May, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.XIII, R.2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for declaration‑‑­Production of additional evidence‑‑‑Case remained pending for full nineteen years and parties adduced their evidence which was closed but application for production of additional evidence was filed, by plaintiffs when case was fixed for final arguments which was dismissed by Trial Court as well as by revisional Court‑‑‑Application for production of additional evidence was rightly dismissed concurrently by Courts below‑‑‑Plaintiff having failed to point out any illegality or infirmity in orders of Courts below, same could not be interfered with by High Court in exercise of Constitutional jurisdiction.

Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR970 rel.

Manzoor‑ul‑Haq for Petitioners.

Shahid Hussain Qadri for Respondents.

Date of hearing: 29th May, 2000.

2001 C L C 155

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASLAM‑‑‑Petitioner

versus

ABDUL WAHID and 3 others‑‑‑Respondents

Civil Revision No.485‑D of 1996, heard on 7th April, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Qunan‑e‑Shahadat (10 of 1984), Art.85(5)‑‑‑Suit for declaration‑‑­Defendants who were cousins of plaintiff and were cultivating his land, on basis of forged and fabricated agreement to sell and power of attorney in collusion with another defendant got land owned by plaintiff mutated in their favour in absence of plaintiff‑‑‑Plaintiff in his suit denied execution of agreement of sale in favour of defendants and execution of power of attorney in favour of other defendant and sought declaration that said documents be declared to be illegal and void and that plaintiff was owner of land in dispute and had not sold land to the defendants‑‑‑Suit was decreed by Trial Court, but on filing appeal Appellate Court dismissed the suit‑‑‑Validity‑‑‑Power of attorney on basis of which land of plaintiff was got mutated in names of defendants and execution of which was denied by plaintiff, was not even produced on record and no explanation for the omission, was given by defendants‑‑‑Defendants had claimed that power of attorney being registered one was a public document and its certified copy was admissible in evidence‑‑Contention was repelled because under Art.85(5) of Qanun‑e-­Shahadat, 1984 only such registered document could be a public document, execution whereof was not disputed, whereas plaintiff had totally denied the execution of the power of attorney‑‑‑No evidence whatsoever had been led by defendants to prove proceedings of mutation‑‑‑Appellate Court below was not justified to hold that since mutation stood incorporated in Revenue Record same enjoyed a presumption of correctness and need not be proved‑‑­If mutation was incorporated in Revenue Record, defendants claiming benefit thereunder were not absolved of their obligation to prove the same as a fact‑‑‑Judgment and decree passed by Appellate Court being not based on any evidence and having been passed in. exercise of jurisdiction not vesting in it, could not sustain‑‑‑High Court set aside judgment of Appellate Court and restored the judgment and decree of Trial Court in circumstances.

Muhammad Ibrahim v. Mst. Basri and others 1988 SCMR 96; Muhammad and others v. Sardul PLD 1965 Lah. (W.P.) 472; Abdul Majeed and 6 others v. M. Subhan and 2 others 1999 SCMR 1245 and Allah Dino and 2 others v. Muhammad Umar and others 1974 SCMR 411 ref.

Muhammad Naveed Hashmi for Petitioner.

Syed Kabeer Mehmood for Respondents.

Date of hearing. 7th April, 2000.

2001 C L C 158

[Lahore]

Before Ch. Ijaz Ahmad and

Muhammad Zafar Yasin, JJ

MUHAMMAD RAMZAN‑‑‑Appellant

versus

CITIBANK N.A. ‑‑‑Respondent

Regular First Appeal No.64, of 1999, decided on 18th April, 2000, (a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑

‑‑‑‑Ss. 9 & 15‑‑‑Constitution of Pakistan (1973), Art.203‑G‑‑‑Suit for recovery of loan‑‑Defendant/borrower had contended that S.15 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 relating to mark‑up, was against the Injunctions of Islam‑‑‑Contention was repelled having no force by virtue of Art.203‑G, Constitution of Pakistan (1973) qua relief with regard to mark‑up as defendant had alternate remedy to agitate matter before Federal Shariat Court ‑‑‑Interest/Riba though was un­-Islamic in view of Supreme Court verdict but past and closed transactions were not to be opened because agreement was executed between parties before the said verdict of Supreme Court which had prospective and not retrospective effect.

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

‑‑‑‑Ss. 4 & 9‑‑‑Civil Procedure Code (V of 1908), O.XXXVII, Rr.2 & 3‑‑­Suit for recovery of loan‑‑‑Leave to defend suit‑‑‑Defendant who obtained loan from plaintiff‑Bank, having failed to discharge his liability in terms of agreement, suit filed by plaintiff‑Bank was decreed and application to defend suit filed by defendant was dismissed which was challenged by him in appeal‑‑‑Legality‑‑‑‑Defendant, who utilised facility of loan, had accepted his liabilities‑‑‑Suit was based on statement of accounts attached with plaint which was duly verified by Bank Authorities in accordance with Bankers' Book Evidence Act, 1881 and was not rebutted by defendant‑‑‑Such statement having presumption of truth by virtue of S.4 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 suit was rightly decreed and Court had rightly concluded that defendant had failed to make out any plausible case for grant of leave to defend suit.

United Bank Limited v. Central Cotton Mills Limited and others 1999 CLC 1374; United Bank Limited v. Messrs Novelty Enterprises Ltd. and others PLD 1998 Kar. 199; Ghulam Rasool's case PLD 1971 SC 376 and Munir Ahmad Autos v. Allied Bank of Pakistan PLD 1990 SC 497 ref.

Malik Imran Nazir Awan for Appellant.

Shahid Ikram Siddiqui for Respondent‑Bank.

Date of hearing: 18th April, 2000.

2001 C L C 165

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL MAJEED and another‑‑‑Appellants

versus

Mst. MOMINA SYEDA FATIMA ‑‑‑Respondent

Regular Second Appeal No.58 of 1984, decided on 8th May, 2000.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 21 & 30‑‑‑Suit for pre‑emption filed by minor collateral of vendor‑‑­Maintainability of‑‑‑Suit filed by minor daughter of vendor through her mother as her next friend was objected to by vendees alleging that plaintiff being minor daughter of vendor, it would be presumed that suit was filed for benefit of vendor‑‑‑Validity‑‑‑Law had given right of pre‑emption to collaterals of vendor and it could never be presumed that suit filed by minor daughter of vendor or even wife of vendor was collusive or for benefit of vendor even if proved that litigation was financed by vendor especially in absence of any evidence to the effect that suit had not been filed for benefit of minor daughter‑‑‑Suit, being bona fide filed, was maintainable.

Imam Ali Shah v. Muhammad Sharif Khan 1976 SCMR 362; Ruqaya Bibi and others v. Abdul Majid 1986 MLD 534 and Lal Din v. Allah Ditta PLD 1967 Lah. 703 ref.

(b) Punjab pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 30‑‑‑Pre‑emption suit‑‑‑Limitation‑‑‑Suit filed within one year of attestation of mutation was not barred by time.

Ch. Ayyaz Muhammad Khan for Appellants.

Muhammad Jahangir Arshad for Respondent.

Date of hearing: 8th May, 2000.

2001 C L C 169

[Lahore]

Before Syed Zahid Hussain, J

BANKERS EQUITY LTD. ‑‑‑Plaintiff

versus

IQAS WEAVING MILLS (PVT.) LTD. ‑‑‑Defendant

Civil Original Suit No.34 of 1999, decided on 26th May, 2000.

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

‑‑‑‑S. 9‑‑‑Civil Procedure Code (V of 1908), OXXXVIII, Rr.2, 3 & O.VII, R.10‑‑‑Suit for recovery of loan‑‑‑Jurisdiction of Court‑‑‑Institution of suit in Banking Court at Lahore had been objected to on ground that according to agreement arrived at between the parties, both parties had agreed that Court of appropriate jurisdiction at Karachi would .be the proper Court to entertain all matters arising under the agreement‑‑‑Defendant‑company though was situated at Lahore and cause of action had also partly arisen at Lahore, but choice with regard to forum made by parties as per agreement was of binding nature and same being neither illegal nor contrary to public policy, should have been kept in mind and acted upon‑‑‑Plaint filed in Court at Lahore, was directed to be returned for presentation before appropriate Court at Karachi.

State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393; Messrs Kadir Motors (Regd.), Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1174; Messrs E.F.U. General Insurance Limited and others v. Fahimul Haq 1997 CLC 1441 and Muhammad Yasin and 2 others v. Ch. Muhammad Abdul Aziz PLD 1993 SC 395 ref.

Muhammad Saeed Akhtar for Plaintiff.

Shahid Ikram Siddiqui for Defendants.

2001CLC171

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi and Mian Saqib Nisar, JJ

CITIBANK N.A. ‑‑‑Appellant

versus

JUDGE, BANKING COURT‑IV and 2 others‑‑‑Respondents

Regular First Appeal No. 158 of 1998, heard on 8th November, 1999.

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

‑‑‑‑S. 9‑‑‑Civil Procedure Code (V of 1908), O.XXXVII, Rr.2 & 3‑‑‑Suit for recovery of loan‑‑‑Leave to appear and defend suit‑‑‑Suit filed by Bank was dismissed being incompetent simply on ground that copy of power of attorney was not annexed by the plaintiff with plaint ‑‑‑Validity‑‑­Requirement of law was to file plaint alongwith statement of account and that requirement was fulfilled by plaintiff‑‑‑Plaint, though was to be filed by a duly and lawfully authorised person, but S.9 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, had not provided that if copy of power of attorney was not filed alongwith plaint the plaint would be rejected and suit would be dismissed‑‑‑Absence of copy of power of attorney at best could have been a ground for consideration while deciding question of granting leave to appear and defend suit. but suit could not be dismissed straightaway, due to non‑filing of copy of power of attorney‑‑‑Whether or not suit was instituted by a duly authorised person, would be a question of fact, which could not be decided without proper evidence‑‑‑Court could have allowed time for filing of power of attorney and attended to question thereafter by granting opportunity of evidence‑‑­Dismissal of suit in summary manner and that too in violation of rules of natural justice, was neither proper nor permissible in law‑‑‑Judgment of Court was set aside, directing that suit be treated as pending before Judge, Banking Court to be decided according to law.

National Bank of Pakistan and others v. Karachi Development Authority and others PLD 1999 Kar. 260 ref.

Shahid Ikram Siddiqi for Appellant.

Waqar Mushtaq Ahmad for Respondent.

Date of hearing: 8th November, 1999.

2001 C L C 174

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM MUHAMMAD ‑‑‑Petitioner

versus

NOOR MUHAMMAD ‑‑‑Respondent

Civil Revision No.35‑D of 1993, heard on 5th April, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 12, 14, 15 & 17‑‑‑Suit for specific performance of agreement‑‑‑Suit earlier filed by plaintiff was decreed by Trial Court holding that plaintiff had proved execution of agreement of sale in his favour by defendant and the receipt of part payment by him, but on filing appeal, judgment and decree passed by Trial Court was set aside by Appellate Court on ground that as defendant had not acquired proprietary rights in respect of land in dispute suit filed by plaintiff was premature‑‑‑Appellate Court below in circumstances had not reversed findings of Trial Court regarding execution of agreement of sale and receipt of part payment by defendant‑‑‑Plaintiff in suit by producing scribe of agreement and marginal witness and also Bank record pertaining to cheques issued by him in name of defendant for sale of price of land, had proved execution of valid sale agreement and payment of price thereof‑‑‑Minor discrepancies in statement of said witnesses could be ignored in view of fact that they were made to testify in respect of said transaction after twenty‑five years‑‑‑Statement of plaintiff, who was cross-examined by defendant, remained firm and in line with plaint and defendant had failed to prove that plaintiff could not abide by terms of agreement‑‑­Appellate Court below, in circumstances, had rightly decreed suit after setting aside judgment and decree passed by Trial Court.

Habibullah v. Mehmood 1984 CLC 309 and Ali Nawaz Gardezi v. Muhammad Yousaf PLD 1963 SC 51 ref.

Syed Kabeer Mehmood for Petitioner.

Muhammad Khalid Alvi for Respondent.

Date of hearing: 5th April, 2000.

2001 C L C 180

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

Mirza MUHAMMAD IQBAL‑‑‑Appellant

versus

CHIEF SECRETARY and 4 others‑‑‑Respondents

Intra‑Court Appeal No.359 of 2000, decided on 7th June, 2000.

Law Reforms Ordinance (XII of 1972)‑‑­

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑­ Competency ‑‑‑Intra‑Court Appeal‑‑‑Maintainability‑‑‑Appellant/petitioner, who claimed to be Chief Editor of National Service Gazette and taxpayer, had challenged in his Constitutional petition drawing of increments in BS‑19 by respondents‑‑‑Appellant had alleged that respondents were drawing increments without any justification and in violation of Rules and Regulations‑‑‑Appellant had no personal interest of his own and having approached the Court on a bare plea of financial propriety for funds of Public Exchequer, was a pro bono publico, and was not an aggrieved person‑‑­ Effect‑‑‑Taxpayer could not maintain Constitutional petition pro bono publico‑‑‑Constitutional petition filed by private person in respect of matters relating to actions or omissions by a person alleged to have misappropriated Government Fund/Public Exchequer, was not en aggrieved person and, thus, was not entitled to file Constitutional petition‑‑‑Constitutional .petition filed by appellant was rightly dismissed‑‑Appellant having failed to point out any illegality or infirmity committed by High Court, Intra‑Court Appeal was dismissed being not maintainable.

Shahjehan Begum's case PLD 1972 Lah. 546; Anjuman‑e‑Arain Bhera's case PLD 1973 Lah. 500; Abdul Haleem's case 1987 MLD 2457; Naraindas and others' case 1987 MLD 464; 1987 CLC 649 and M. Ramiz-ul‑Haq's case PLD 1992 SC 221 ref.

Ch. Anwar‑ul‑Haq for Petitioner.

Ijaz Ahmad Chaudhery, Addl. A.‑G. (on Court's call).

2001 C L C 182

[Lahore]

Before Maulvi Anwarul Haq, J

Ch. MUHAMMAD MUMTAZ ‑‑‑Appellant

versus

Mst. SAJIDA SULTANA and 8 others‑‑‑Respondents

Regular Second Appeal No.41 of 1989, heard on 3rd April, 2000.

Specific Relief Act (I of 1877)‑‑­

‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement‑‑‑Agreement of sale of land in dispute arrived at between vendee and predecessor of vendor had fully been proved by evidence brought on record‑‑‑Suit which was well within time was rightly decreed by Trial Court‑‑‑Appellate Court, without taking into consideration evidence on record and acting under misconception, set aside judgment and decree passed by Trial Court even without recording a single reason for disbelieving testimony of witnesses who were scribe of agreement and marginal witnesses of agreement‑‑ Findings of Appellate Court suffering from misreading and non‑reading of evidence on record, were set aside in second appeal restoring finding of Trial Court.

Javed Masih and 3 others v. The State PLD 1994 SC 314 ref.

Mirza Manzoor Ahmad for Appellant.

Mirza Aziz Akbar Beg for Respondents.

Date of hearing: 3rd April, 2000.

2001 C L C 185

[Lahore]

Before Ch. Ijaz Ahmad, J.

AMIR NAWAZ KHAN and 2 others‑‑‑Petitioners

versus

GOVERNMENT OF PAKISTAN through

Secretary, Finance, Islamabad and 5 others‑‑‑Respondents

Writ Petitions Nos. 19770, 23488, 21918, of 1997, 26432 of 1998, 12635, 2692, 974, 975, 1383, 1384, 12003 and 16882 of 1999, heard on 4th April, 2000.

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

‑‑‑‑Art. 19‑‑‑Constitutional petition‑‑Maintainability‑‑‑Principle of approbate and reprobate‑‑‑In presence of arbitration clause in the agreement executed between the parties, Constitutional petition was not maintainable‑‑­Constitutional petition was also not maintainable on principle of approbate and reprobate.

Zia Ullah Khan's case PLD 1989 Lah. 554; Muhammad Ansar and others v. Administrator, Town Committee, Kabirwala, District Khanewal and 4 others 1999 YLR 950; Bismillah & Co. v. Secretary, Government of the Punjab and others 1997 PTD 747; Adam Khan Mirza v. Muhammad Sultan PLJ 1975 SC 21; Ali Sher v. The State 1994 SCMR 1884; Murad Ali & Company's case 1999 SCMR 121 and Ghulam Rasool's case PLD 1971 SC 376 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Agreement arrived at between parties could not be enforced through Constitutional jurisdiction of High Court as petitioner would have alternative remedies either to file a civil suit or to invoke arbitration clause contained in the agreement.

Shameer v. Board of Revenue 1981 SCMR 604; Pakistan Mineral Development Authority v. Pakistan Water and Power Development Authority PLD 1986 Quetta 181; The Chandpur Mills Ltd.'s case PLD 1958 SC 267; Messrs Momin Motor Company v. The Regional Transport Authority PLD 1962 SC 108; Bismillah & Co. v. Secretary Finance, Government of Pakistan 1997 PTD 747; Rehman Corporation, Hyderabad v. The Income‑tax Officer 1985 PTD 787; Trustees of the Port of Karachi v. Central Board of Revenue 1989 PTD 1048; Idara‑e‑Kissan v. Registrar of Trade Unions and others NLR 1995 Tax (Lahore) 51 = 1995 PTD 493; Muhammad Younus v. Chairman, Municipal Committee, Sahiwal PLD 1984 Lah. 345; Messrs Sardarpur Tex Zahur Textile Mills, Mandiwalla Mauser Messrs Sh. Spinning Mills and another v. Federation of Pakistan 1997 PTD 70; Muhammad Ansar's case 1999 YLR 950; Pir Muhammad v. Government of Sindh 1990 MLD 869; Writ Petition No. 16358 of 1997; Khairullah's case 1997 SCMR 906; Miss Benzair Bhutto's case PLD 1988 SC 416; Malik Ghulam Mustafa Khar's case PLD 1989 SC 26 and Muhammad Ismail's case PLD 1996 SC 246 ref.

(c) Precedent‑‑‑

‑‑‑‑ Binding effect‑‑‑Previous decision of High Court to be accepted by said High Court as binding.

Muhammad Muzaffar Khan v. Muhammad Yousaf Khan PLD 1959 S C (Pak.) 9 ref.

Maqbool Elahi Malik for Petitioners.

Shafqat Chohan for Respondents.

Date of hearing: 4th April, 2000.

2001 C L C 192

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD ARIF‑‑‑Petitioner

versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, KASUR and 2 others‑‑‑Respondents

Writ Petition No. 10682 of 1999, heard on 11th April, 2000.

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

‑‑‑‑S. 148 & O. VII, R. 11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Deficiency in court‑fee, making up of‑‑‑Plaintiff who failed to make up deficiency in court‑fee within time specified by Court filed application under S.148, C.P.C. for extension of time in payment of court‑fee contending that he was not aware of time fixed by Court for making up the deficiency‑‑‑Validity‑‑‑Court could extend time for making up deficiency in court‑fee under 5.148, C.P.C. but subject to condition that Court retained control over the action and had full power to make a necessary order therein‑‑‑Court which had finally disposed of revision filed by plaintiff against order for making up, deficiency of court‑fee, having no control over the lis, had become functus officio and would have no authority in law to extend time fixed by it in its order while finally disposing the revision‑‑‑Plaintiff having failed to act with bona fides and due vigilance in pursuing matter to make up the deficiency of court‑fee, application for extension .of time for making up deficiency of court‑fee was rightly dismissed by Appellate Court‑‑‑No illegality or infirmity having been found in order of Appellate Court which could be termed to be without lawful authority and without jurisdiction calling for interference in Constitutional jurisdiction of High' Court, Constitutional petition was dismissed.

Siddique Khan and others v. Abdul Shakur Khan' and another PLD, 1984 SC 289; PLD 1966 SC' 983; 1987 CLC 1682 and 1991 MLD 2109 ref.

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

‑‑‑‑S. 148‑‑‑Constitution of Pakistan (1973); Art.199‑‑‑Constitutional petition‑‑‑ Extension of time to make up deficiency in court‑fee‑‑­Discretionary orders, which were perverse, arbitrary, fanciful and against settled norms of justice, could be interfered with by High Court in exercise of Constitutional jurisdiction‑‑‑Order passed by Appellate Court dismissing application for extension of time for making up deficiency of court‑fee, not suffering from any such vice, Constitutional petition, was not competent against such order.

Amjad Pervaiz Malik for Petitioner.

Masood Akhtar Sheikh for Respondents.

Date of hearing: 11th April 2006

2001 C L C 200

[Lahore]

Before Ch. Ijaz Ahmad, J

METROPOLITAN CORPORATION OF LAHORE

through Administrator and another‑‑‑Petitioners

versus

LEASE PAK LIMITED‑‑‑Respondent

Civil Revision No. 1365 of 2000, heard on 4th October, 2000.

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

‑‑‑‑O. VIII, R.10 & O.XLIII, R.1(b)‑‑‑Appeal against order‑‑­Maintainability‑‑‑Failure to pronounce judgment‑‑‑Where defence of defendant had been struck off by the Trial Court, the defendant had no right to file appeal as the order of the Trial Court did not fall in the category of judgment.

Jagat Singh's case AIR 1931 Lah. 77; M.C. Bahawalpur's case PLD 1970 SC 506; Government of Punjab v. Shah Muhammad 1981 Law Notes 648 and Muhammad Yousuf Khan's case 1981 SCMR 590 ref.

Municipal Committee, Bahawalpur v. Sh. Aziz Elahi PLD 1970 SC 506 and Cantonment Board, Rawalpindi v. Muhammad Sharif PLD 1995 SC 472 distinguished.

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

---‑‑O. VIII, R.10‑‑‑Provision of O. VIII, R.10, C. P. C. is a penal provision and the same has to be strictly construed.

Sardar Sakhawat‑ud‑Din v. Muhammad Iqbal 1987 SCMR 1365 ref.

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

‑‑‑‑O. VIII, R.10‑‑‑Defence, striking off‑‑‑No direction by Trial Court to file written statement‑‑‑Case was adjourned on each date on the request of the petitioner, to file written statement‑‑‑Trial Court did not pass a speaking order and struck off the defence of the petitioner‑‑‑Validity‑‑‑Order of the Trial Court was not in accord with the law laid down by Supreme Court in Sardar Sakhawat‑ud‑Din's case reported in 1987 SCMR 1365‑‑‑Order passed by the Trial Court was set aside in circumstances.

Sardar Sakhawat‑ud‑Din v. Muhammad Iqbal 1987 $CMR 1365; Province of Punjab v. Ch. Pervaiz Ahmad 1993 CLC 660; Deputy Collector of Customs and 2 others v. Muhammad Tahir and another PLD 1989 SC 627; Manager, Forest Operation (Malakand Circle v. Muhammad Zaman and another PLD 1992 Pesh. 173 and Secretary, Board of Revenue, Punjab v. Khalid Ahmad 1991 SCMR 2587 ref.

Sardar Sakhawat‑ud‑Din v. Muhammad Iqbal 1987 , SCMR 1365 fol.

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

‑‑‑‑O. VIII, R.10‑‑‑Written statement, failure to file‑‑‑Striking off defence‑‑­Scope‑‑‑Provision of O.VIII, R.10, C.P.C. applies only to the specific requirement by the Trial Court to the filing of a written statement and not to a general direction in the summons that such a written statement may be filed.

Thakurain Dhiraj Kuwar's case AIR 1925 Oudh 567 ref.

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

‑‑‑‑O. V, R.2 & O.VIII, R.10‑‑‑Copy of plaint not annexed with summons‑‑­Striking off defence for not filing written statement in statutory period‑‑­Copy of the plaint was received by the defendant in Court and the written statement was filed within time‑‑‑Trial Court struck off the defence of the defendant on the ground that the written statement was not filed in the specified time‑‑‑Validity‑‑‑Where previous orders of the Trial Court did not contain any word that the defendant received copy of the plaint, the defendant still had time to file written statement within the specified period under the provisions of C.P.C:‑‑‑Where such fact was not considered by the Trial Court defence was struck off without application of independent mind‑‑‑Such order of the Trial Court was set aside in circumstances.

Islamic Republic of Pakistan v. Babar & Company '1984 CLC 1535; Sh. Abdul Hamid's case 1993 SCMR 1071 and AIR 1976 Delhi 97 ref.

(f) Administration of justice‑‑‑

‑‑‑‑ Technicalities should not be hindrance in the way of justice.

Khuda Yar's case PLD 1975 SC 678 and Imtiaz Ahmad's case PLD 1963 SC 382 ref.

(g) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 2A‑‑‑Decision of cases on merits‑‑‑After addition of Art.2A in the Constitution cases must be decided on merits instead of technicalities.

Said Muhammad's case PLD 1989 SC 532 ref.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Scope‑‑‑High Court has jurisdiction to set aside order of Trial Court.

Shaukat Nawaz's case 1998 SCMR 851 ref.

Faiz M. Bhatti for Petitioners.

Asif Mehmood Khawaja for Respondent.

Date of hearing: 4th October, 2000.

2001 C L C 207

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑1)

ZAHID ARFAN and another‑‑‑Petitioners

versus

NAZIR MASIH‑‑‑Respondent

R.O.R. No.2538 of 1997, decided on 22nd August, 2000.

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

‑‑‑‑S. 163‑‑‑Power of review by District Collector‑‑‑Scope‑‑‑District Collector being custodian of record‑of‑rights in the District, had been empowered under West Pakistan Land Revenue Act, 1967, Land Administration Manual, Land Records Manual and the Instructions of the Board of Revenue, to order for correction of entries of Revenue Record and was bound to ensure that record was updated and maintained correctly‑‑­District Collector was authorised to sanction or accord permission for review of an order passed by predecessor of a Subordinate Revenue Officer‑‑‑If an application pointing out defective entries of Revenue Record was submitted to District Collector and such application was marked by District Collector to Subordinate Revenue Officer for investigation and report, District Collector could not be viewed to have transgressed his power‑‑‑When a report from Subordinate Revenue Officer, who was competent to review any order passed by his predecessor with permission of his superior officer, was received by District Collector on which he formulated view that Revenue Record was not correctly maintained and certain order of Subordinate Revenue Officer required review and he accorded permission for review of such order, District Collector had merely facilitated the fulfilment of conditionality imposed on Revenue Officer under S.163(2)(ii) of West Pakistan Land Revenue Act, 1967‑‑‑Sanction to review under proviso to S.163(3)(a)(ii) of the Act not an order, as defined in 5.104, C.P.C. but was merely a permission accorded to a Subordinate Revenue Officer to subject the order of his predecessor to judicious scrutiny in presence of concerned 'parties‑‑‑Concerned Revenue Officer, who had been allowed to review order, was not bound after hearing the parties to necessarily modify or reverse order, but previous order could be confirmed‑‑‑Practice that except District Collector no other Revenue Officer including Board of Revenue entertained application for review of an order of a Subordinate Officer, could not be made a ground to infer that an application submitted to District Collector praying for grant of sanction to a Revenue Officer for review of an order passed by his predecessor‑in-office was illegal and not acceptable.

1995 CLC 389 ref.

Ch. Muhammad Rafiq Warraich for Petitioners.

Abdul Hamid for Respondent.

2001CLC218

[Lahore]

Before Malik Muhammad Qayyum, J

THE ADMINISTRATOR‑GENERAL OF AUQAF, GOVERNMENT OF PAKISTAN and another‑‑‑Petitioners

versus

THE DISTRICT JUDGE, SARGODHA and 7 others‑‑‑Respondents

Writ Petition No.4982 of 1978, heard on 26th September, 2000.

(a) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)‑‑‑

‑‑‑‑Ss. 6 & 7‑‑‑Notification of taking over Waqf property‑‑‑Remedy‑‑‑Where notification under S.6 of West Pakistan Waqf Properties Ordinance has been issued, remedy against such notification lies in filing application before District Court and not by instituting civil suit.

Chief Administrator of Auqaf v. Muhammad Ramzan and others PLD 1991 SC 102; Syed Muhammad Ali Shah Bokhari v. The Chief Administrator of Auqaf Punjab, Lahore 1972 SCMR 297 and Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf, Punjab, Lahore 1976 SCMR 450 ref.

(b) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)‑‑‑

‑‑‑‑Ss. 6 & 7‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑Decree passed by Civil Court assailed in Constitutional petition‑‑‑Suit property was taken over by Chief Administrator Auqaf vide notification under S.6 of West. Pakistan Waqf Properties Ordinance, 1961‑‑‑Notification was challenged in civil suit‑‑‑Trial Court decreed the suit and appeal filed by the Authorities before Lower Appellate Court was also dismissed‑‑‑Contention was that decrees of both the Courts below were to be challenged in revision petition and not by invoking Constitutional jurisdiction‑‑‑Validity‑‑‑Disputed notification could only be assailed by filing application under S.7 of West Pakistan Waqf Properties Ordinance, 1961 and jurisdiction of Civil Court was totally barred‑‑­Judgments and decrees rendered in the suit were void ab initio and were nullity in the eyes of law, which were set aside.

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

‑‑‑‑S. 115‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Revision‑‑‑Void order‑‑‑Remedy‑‑‑Civil Court passed decree in a matter where jurisdiction of Civil Court was barred‑‑‑Such decree was assailed in Constitutional petition‑‑‑Contention was that in such matter revision petition was to be filed‑‑‑Validity‑‑‑No impediment existed in the way of High Court treating the Constitutional, petition as a civil revision as the same would be a matter of technicality‑‑‑Availability of remedy of revision did not bar the jurisdiction of High Court but it only regulated the discretion vesting in it.

Muhammad Arif Raja for Petitioners.

Ch. Riasat Ali for Respondents.

Date of hearing: 26th September, 2000.

2001 C L C 224

[Lahore]

Before Raja Muhammad Sabir, J

Rai NAEEM SHAHADAT‑‑‑Petitioner

versus

Mst. QAMAR MUNIR and another‑‑‑Respondents

Writ Petition No. 13485 of 2000, decided on 6th October, 2000.

(a) West Pakistan Family .Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 14(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑Adequate and efficacious remedy, non‑availing of‑‑‑Suit for recovery of dowry articles was decreed against ex‑husband‑‑‑Ex­-husband instead of filing appeal before District Judge under S.14 of West Pakistan Family Courts Act, 1964, assailed the judgment and decree before High Court in Constitutional jurisdiction‑‑‑Validity‑‑‑Where the judgment and decree passed by the Family Court did not fall within the prohibition contained in S.14(2) of West Pakistan Family Courts Act, 1964, appeal against such judgment was maintainable under S.14 of West Pakistan Family Courts Act, 1964‑‑‑Such adequate and efficacious remedy provided under law having not been availed, Constitutional petition was not maintainable.

Mst. Rushda Zareen v. Muhammad Saleh PLD 1976 Lah. 1327 ref.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 14‑‑‑West Pakistan Civil Courts Ordinance (II of 1962), Preamble‑‑­Suits Valuation Act (VII of 1887), Preamble‑‑‑West Pakistan Civil Courts Ordinance, 1962 and Suits Valuation Act, 1887‑‑‑Applicability‑‑‑Appeal‑‑­Maintainability‑‑‑Amount of decree passed by Family Court‑‑‑Relevance‑‑Irrespective of any amount of decree included in a family suit, appeal is competent before District Judge, except the three categories mentioned in S.14(2)(a), (b) & (c) of West Pakistan Family Courts Act, 1964‑‑‑Provisions of Suits Valuation Act, 1887, and West Pakistan Civil Courts Ordinance, 1962, are not applicable to a suit under West Pakistan Family Courts Act, 1964.

Shabbir Hussain v. Mst. Ansar Fatima and 3 others PLD 1985 Lah. 491 and Muhammad Yousaf and another v. Naghar Fayyaz 1985 CLC 2609 ref.

(c) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑Ss. 5 & 14‑‑‑West Pakistan Civil Courts Ordinance (II of 1962), S.18‑‑‑ Pecuniary limits‑‑‑Civil Judge, notified as Family Court ‑‑‑Jurisdiction‑‑­Determination of forum of appeal‑‑‑Scope‑‑‑Matrimonial disputes exclusively fall within the jurisdiction of Family Courts created under special statute‑‑­Provisions of special statute prevail against all other laws‑‑‑Pecuniary limits of Civil Judge notified as Family Court are totally irrelevant‑‑‑Amount decreed by Family Court has no place in determining forum of appeal as provision of S.18 of West Pakistan Civil Courts Ordinance, 1962 is not applicable.

Rai Muhammad Tufail Khan Kharal for Petitioner.

2001 C L C 229

[Lahore]

Before Sheikh Abdur Razzaq, J

Mst. FATIMA through her legal heirs and another‑‑‑Appellants

versus

LAL KHAN and 19 others‑‑‑Respondents.

Regular Second Appeal No.30 of 1976, heard on 24th May, 2000.

(a) Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑‑Sect of Pakistani Muslims‑‑‑Onus to prove‑‑‑Presumption is that all inhabitants of Pakistan are Sunni Muslims‑‑‑Person who claims otherwise, onus lies on him to discharge the onus.

(b) Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑‑Sect of deceased‑‑‑Onus to prove‑‑‑Deceased was without any male issue and was survived by a widow and a daughter‑‑‑Mutation of inheritance was attested as per Sunni law of inheritance‑‑‑Both the ladies (widow and daughter of the deceased) claimed that the deceased was Shia by sect‑‑‑Disputed inheritance was assailed in civil suit‑‑‑During trial the ladies produced Pesh Imam as witness and relying on his evidence the Trial Court decreed the suit‑‑‑Lower Appellate Court reversed the findings of the Trial Court for the reason that the witness produced by the ladies did not belong to that village and had never conducted funeral prayer in the past ‑‑‑Validity‑‑­Widow and daughter of deceased being directly inheritors of the deceased were not to be given credence without any independent corroboration‑‑­Where the ladies alleged the deceased to be not Sunni but Shia, burden to prove the same was on the ladies who failed to discharge the burden‑‑­Judgment of Appellate Court was passed in accordance with law and the same was upheld in circumstances.

Mst. Rehmat v. Mst. Amiran and others 1992 ALD 457 distinguished.

M. Iqbal Begum v. Mst. Syed Begum and others AIR 1933 Lah. 80 ref.

Syed Qalb‑e‑Hassan for Appellants.

Ch. Afrasiab Khan for Respondents Nos. l to 12.

Mahmood‑ul‑Hassan Awan for Respondents Nos. 15 to 20.

Date of hearing: 24th May, 2000.

2001 C L C 239

[Lahore]

Before Ch. Ijaz Ahmad, J

FIDA HUSSAIN and 2 others‑‑‑Petitioners

versus

PROVINCE OF PUNJAB through

Secretary Settlement, Board of Revenue, Punjab, Lahore and 4 others‑‑‑Respondents

Writ Petition No.8798 of 2000, heard on 28th September, 2000.

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

‑‑‑‑S. 48‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Withdrawal from acquisition of land‑‑‑Disputed question of fact‑‑­Amenability to Constitutional jurisdiction‑‑‑Notification for acquisition qua land owned by the petitioner was issued by the Authorities but the same was withdrawn under S.48 of Land Acquisition Act, 1894‑‑‑Contention of the petitioners was that the notification could not be withdrawn as the possession of land was taken over by the Authorities which plea was denied by respondents‑‑‑Maintainability of Constitutional petition‑‑‑Where delivery of possession was denied by the Authorities, such question would be a disputed question of fact‑‑‑High Court had no jurisdiction to decide the disputed question of fact in exercise of Constitutional jurisdiction‑‑‑Provincial Government under the provisions of S.48 of Land Acquisition Act, 1894 had unlimited power to withdraw from the acquisition provided the power was exercised in cases to which S.36 of Land Acquisition Act, 1894 did not refer and possession of the land proposed to be acquired had not taken place‑‑‑Constitutional petition was not maintainable in circumstances.

Muhammad Yunus's case 1993 SCMR 618 and Fortpress Company Ltd. v. Municipal Corporation of the City of Bombay 21 Born. LR 1014 ref.

Government of Sindh v. Ramzan and others 2000 CLC 99; Ali Akbar v. The Land Acquisition Collector 1999 CLC 29; Land Acquisition Collector v. Sardai Muhammad Safdar Khan 1998 SCMR 2142; Ahbab Cooperative Housing Society v. Commissioner, Lahore Division PLD 1978 Lah. 273 and National Police Foundation Cooperative Housing Society Ltd. v. Board of Revenue, Government of Punjab, Lahore PLD 1984 Lah. 191 distinguished.

(b) Malice‑‑‑

‑‑‑‑ Allegation of‑‑‑General allegation of malice is not sustainable in the eyes of law.

Saeed Ahmad' Khan's case PLD 1974 SC 151 and Amaan Ullah Khan's case PLD 1990 SC 1092 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑If petitioners do not approach High Court with clean hands, discretion in favour of such petitioners is not exercised

Nawabzada Ronaq Ali's case PLD 1973 SC 236 and Rana Arshad's case 1998 SCMR 1462 ref.

(d) Equity‑----------

‑‑‑‑ He who seeks equity must come with clean hands.

Nawabzada Ronaq Ali's case PLD 1973 SC 236 and Rana Arshad's case 1998 SCMR.1462 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Alternate remedy‑‑‑ Question of fact‑‑‑Where the petitioners had alternate remedy available for resolution of disputed question of fact by filing civil suit before competent Court, Constitutional petition was not maintainable.

Syed Kazim Bokhari for Petitioners.

Malik Akhtar Hussain Awan, Addl. A.‑G. for Respondents Nos.l to 4.

Aamir Farooq for Respondent No. 5.

Date of hearing: 28th September, 2000.

JUDGMENT

The brief facts out of which the present writ petition arises are that the petitioners are owners of land in question measuring 42 Kanals, 18 Marlas situated in Chak No.32‑NP Tehsil Sadiqabad District Rahim Yar Khan. The District Collector Rahim Yar Khan acquired the land of the petitioners under section 4(1) of the Land Acquisition Act for construction of Additional Carriage Way by respondent No.5. The Revenue Authorities determined the value of the property in question as Rs.25,000 per Marla for commercial land of the petitioners whereas Rs.1,54,482 was fixed per acre of the agricultural land of the petitioners. The Deputy Commissioner sent the case of the petitioner for confirmation of the price through Commissioner to the Member, Board of Revenue who referred the case back to the Deputy Commissioner/Collector Rahim Yar Khan for verification that the price determined by the revenue staff is excessive. The subordinate staff of revenue authority re‑assessed the value twice thereafter and confirmed and approved the earlier assessment but the Member Board of Revenue did not, approve the same and finally Notification under section 4(1) of the Land Acquisition Act was withdrawn by the Deputy Commissioner/Collector Rahim Yar Khan vide order, dated 15‑10‑1998 under section 48 of the said Act. During the process of the acquisition proceedings the possession of the land in question was taken by the respondent No.5. The road was also constructed over the land in question.

1. The learned counsel of the petitioner submits that action of respondents Nos. l to 4 is without lawful authority as the subordinate revenue staff of respondents Nos. l to 4 assessed and determined the price of the petitioners' land in accordance with the law laid down by the Superior Courts. In support of his contention he relied upon the following judgments:‑‑

Government of Sindh v. Ramzan and others 2000 CLC 99, Ali Akbar v. The Land Acquisition Collector 1999 CLC 29 and Land Acquisition Collector v. Sardar Muhammad Safdar Khan 1998 SCMR 2142.

He further submits that respondents Nos. l to 4 have taken action against the petitioner with malice, therefore, same is not sustainable in the eyes of law. In support of his contention he relied upon the following judgments:‑‑

Ahbab Cooperative Housing Society v. Commissioner Lahore Division PLD 1978 Lah. 273 and National Police Foundation Co­Operative Housing Society Ltd. v. Board of Revenue, Government of Punjab, Lahore PLD 1984 Lahore 191.

1. The learned counsel ‑of respondent No.5 supported the case of the petitioner and further submits that action of the respondents is not in public interest as the road has already been constructed over the disputed property.

2. The learned Additional Advocate‑General submits that action of the respondents is in accordance with law as the price of the land in question was determined/assessed by the subordinates of respondents Nos. l to 4 excessively with the connivance of the petitioners. The Member Board of Revenue was justified to refuse to accept the price determined by the subordinates of respondents Nos.3 and 4 on the ground that the price determined by them was very excessive which is not in accordance with the market price of the land in question. The petitioners themselves delivered the possession of land in question to the Acquiring Department without the intervention of the revenue authorities and without awaiting for the final approval of the Board of Revenue regarding the compensation, therefore, respondents were competent to withdraw the Notification under section 48(2) of Land Acquisition Act, 1894. He further submits that petitioners approached this Court with unclean hands, therefore, writ petition is liable to be dismissed. He further submits that this Court has no jurisdiction to decide the disputed question of fact in Constitutional jurisdiction.

3. The learned counsel of the petitioner in rebuttal submits that respondent No.5 has already deposited Rs. one Crore to the respondent No.4 and respondents withheld the same without any justification. This fact alone is sufficient that action of the respondents is without lawful authority. He further submits that respondents have no authority whatsoever to withdraw the notification under section 48 of the Land Acquisition Act as the possession of the land has already been taken from the petitioner. He further submits that respondent No.3 sent the case of petitioner for approval of the price determined by the revenue staff to the Member, Board of Revenue, through Commissioner but he did not pass any order, therefore, action of respondent No.3 is without lawful authority.

4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the operative paragraphs of the writ petition, parawise comments of respondents to resolve the present controversy between the parties:

| | | | | | --- | --- | --- | --- | | Writ Petition | Parawise Comments Respondent No.2 (M.B.R.) | Parawise comments Respondent No. 3 (D.C.) | Parawise comments Respondent No.4 (A.C.) | | (6) That after the receipt of report from Tehsildar the D.C. Rahim Yar Khan prepared a summary and forwarded the a case to the Commissioner, Bahawalpur Division vide letter, dated 19-2-1997, the copy of summary and letter is attached herewith as Annexures "F" and "G" respectively. | It is correct. But since the amount of Rs.86,08,857.50 was assessed as compensation of the land with connivance of the Revenue Field Staff, as the assessed amount was excessive than the prevalent market value and average price of sale transactions of land pertaining to the period from 2‑11‑1995 to 19‑11‑1996, therefore, Board of Revenue did not approve it and made an observation vide Letter No.469‑97/477‑S‑IV, dated 29‑4‑1997 addressed to Commissioner, Bahawalpur for providing rationale for proposing such exorbitant rates. | It is correct. But since the amount of Rs.86,08,857.50 was assessed as compensation of the land with connivance of the Revenue Field Staff, as the assessed amount was excessive then the prevalent market value and average price of sale transactions of land pertaining to the period from 2‑11‑1995 to 9‑11‑1996, therefore, Board of Revenue did not approve it and made an observation vide Letter. No.469‑97‑477‑SIV, dated 29‑4‑1997 addressed to Commissioner, Bahawalpur for providing rationale for proposing such exorbitant rate. | | | (14) That on the receipt of report from Tehsildar the learned D. C. was pleased, to reply to the objection of Board of Revenue where the Deputy Commissioner specifically mentioned that he after double check of the value of the acquired land, submitted the report. Copy of the said letter, dated 27‑8‑1997 is attached herewith as Annexure "Q". | It is correct to the extent that the then Deputy Commissioner submitted report to the Commissioner, Bahawalpur Division, Bahawalpur. But later on it revealed that the Revenue Field Staff assessed the compensation of the land measuring 42 Kanals and 18 Marlas to be acquired for Rs.86,08,857.05 considering the same as commercial land, because there was shown a Gatta Factory in that vicinity with the mutual connivance of the affectees and Revenue Field Staff. But no such factory existed in the locality. In fact the assssed compensation .was excessive than the prevalent market value and average price of sale transaction of land taken place during the period of 12 months preceeding the date of notification under section 4(l) of Land Acquisition Act. Later on the aforesaid notification was withdrawn by the order of the D.C., Rahim Yar Khan vide No. LAC/260‑61, dated 22‑7‑1998 under the direction of the Commissioner, Bahawalpur contained in Letter No.ACO/RVK/2‑938.1649, dated 15‑6‑1998. | It is correct to the extent that the then D.C. submitted report to the Commissioner, Bahawalpur Division. But later on it revealed that the Revenue Field Staff assessed the compensation of the land measuring 42 Kanals, 81 Marlas to be acquired for 86,08,857.05 considering the same as commercial land because there was shown a Gatta Factory in that vicinity with the mutual connivance of the affectees and Revenue Field Staff. But no such factory existed in that locality. In fact assessed compensation was excessive than the prevalent market value and average price of sale transaction of land taken place during the period of 12 months preceding the date of notification under section 4(1) of Land Acquisition Act. Later on the aforesaid notification was withdrawn by the order of the D.C. Rahimyar Khan vide No.LAC/260/61, dated 22‑7­1998 under the direction of the Commissioner, Bahawalpur contained in Letter No. Acq/RYK/2‑938.1649, dated 15‑6‑1998. | Needs no comments. | | (15) That it would be pertinent to mention here that the possession of the land was handed over to respondent No.5 by the Government of Pakistan through proceedings in writing on 8‑6‑1994, the ,copy of letter from Land Acquisition Collector, National Highway Authority is attached herewith as Annexure "R". The copy of possession letter duly signed by the Project Director of National Highway Authority and other officers is attached as Annexure "S". | It relates to Respondent No.5 (National Highway Authority). However, the Petitioner himself delivered the possession of land to the acquiring department without the intervention of the Revenue authorities and without waiting for the final approval of the Board of Revenue regarding the compensation. Transfer of possession of land was purely voluntary with mutual understanding and consent of petitioners with the National Highway Authority. Therefore, National Highway Authority may make the payment of suitable compensation to the petitioners through private negotiations. | It relates to respondent No.5 (National Highway Authority). However, the petitioner himself delivered the possession of land to the acquiring department without the intervention of the Revenue Authorities and without waiting for the final approval of the Board of Revenue regarding the compensation. Transfer of possession of land was purely voluntary with mutual understanding and consent of petitioners with the National Highway Authority. Therefore, National Highway Authority may make the payment of suitable compensation to the petitioners through private negotiations. | Does not relate to respondent No. 4. | | (27)Compensation to the petitioners through private negotiations. That if the respondents will not be directed to make the payment of acquired land at the earliest possible the petitioners will suffer irreparable loss and will also be deprived from their fundamental rights. | It is incorrect. The petitioners are not entitled for the payment of the price of land under Land Acquisition Act, 1894 because notification under section 4(1) issued by the undersigned for the acquisition of land has been withdrawn. The petitioners delivered the possession of land to the acquiring department on their own without the intervention of the Revenue Authorities and without waiting for the final approval of the Board of Revenue, regarding the payment of compensation. Transfer of possession of land was purely voluntary with mutual understanding and consent of petitioner with the National Highway Authorities. Therefore, the petitioners may receive the payment of compensation from respondent No. 5 (National Highway) through negotiation. | It is incorrect. The petitioners are not entitled for the payment of the price of land under Land Acquisition Act, 1894 because notification under section 4(1) issued by the undersigned for the acquisition of land has been withdrawn. The petitioners delivered the possession of land to the acquiring department on their own without the intervention of the Revenue Authorities and without waiting for the final approval of the Board of Revenue regarding the payment of compensation. Transfer of possession of land was purely voluntary with mutual understanding and consent of petitioner with the National Highway authorities. Therefore, the petitioners may receive the payment of compensation from respondent No.5 (National Highway Authority) through private negotiation. | Needs no comments. |

In case the aforesaid paragraphs are put in a juxtaposition then it brings the case in the area of disputed questions of fact to the extent whether the possession of the land in question was given by the petitioners themselves to respondent No.5 or with the intervention of respondents Nos.3 and 4. It is settled proposition of law that this Court has no jurisdiction to decide the disputed question of fact in a Constitutional jurisdiction as per principle laid down by the Honourable Supreme Court in Muhammad Yunus's case 1993 SCMR 618. Subsection (1) of section 48 of Land Acquisition Act is reproduced hereunder for the purpose of just decision in the present case:‑‑

"Completion of acquisition not compulsory, but compensation to be awarded when not completed. (1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken."

The plain reading of the aforesaid section shows that section 48 is quite comprehensive and confers almost unlimited power on the Provincial Government ,to withdraw from the acquisition provided that power is exercised in cases to which section 36 does not refer and possession of the land proposed to be acquired has not been taken. Section 48 makes no distinction between an acquisition made for public purpose and an acquisition for a company. Meaning thereby the power of withdrawal rests with the Government whoever the requiring authority as is held by the Bombay High Court in Fortpress Company Ltd. v. Municipal Corporation of the City of Bombay 21 Born. L.R. 1014. It is settled principle of law that the authority to withdraw notification by the Government lapses when the possession has passed on to the Government. In the present case as mentioned above the respondents Nos.2 and 3 have taken definite stand that the possession of the land in question was not taken by respondent No.5 with the intervention of respondents Nos.3 to 4. This fact as mentioned above brings the case of either party in the area to record evidence which is not permissible in the eyes of law. The aforesaid case of National Police Foundation Cooperative Housing Society PLD 1994 Lahore 191 relied by the learned counsel for the petitioner does not support the case of the petitioner as the petitioner failed to disclose specific allegations of mala fide against respondents Nos. l to 4. This case in fact supported the case of the respondents Nos. 1 to 3. Case of Ahbab Cooperative Housing Society PLD 1978 Lahore 273 relied by the learned counsel for the petitioner does not support the cause of the petitioners as petitioners failed to bring on record any specific allegations of mala fide against the respondents Nos. l to 3 to withdraw the notification under section 48 of Land Acquisition Act. It is settled proposition of law that general allegations of malice are not sustainable in the eyes of law as per principle laid down by the Honourable Supreme Court in Saeed Ahmad Khan's case PLD 1974 SC 151 and in Amanullah Khan's case PLD 1990 SC 1092. Respondent No.2 did not approve the price of the land in question being excessive as the price was determined by the subordinates of respondent No.3 with the connivance of the petitioners. Therefore, petitioners do not approach this Court with clean hands. It is settled proposition of law that he who seeks equity must come with clean hands. In this view of the matter am not inclined to exercise my discretion in favour of the petitioners as per principle laid down by the Honourable Supreme Court in the following judgments:‑‑

Nawabzada Ronaq Ali's case PLD 1973 SC 236 and Rana Arshad's case 1998 SCMR 1462.

Even otherwise as mentioned above, the writ petition is not maintainable as the petitioner has alternative remedy for resolution of the disputed questions of fact by filing the civil suit before the competent Court. The other citations by the learned counsel for the petitioners are distinguished on law and facts and have no relevancy qua this present case. Learned counsel for the petitioners submits that case of the petitioners was forwarded through the Commissioner by respondent No.3 to respondent No.2 but he did not take any action on the recommendations of the respondent No.3. In case the Member Board of Revenue has not passed any order on the recommendations of the respondent No.3. In this view of the matter and fair‑play respondent No.2 is directed to pass an appropriate order strictly in accordance with law within reasonable time with reasons in the interest of justice and fair­play. It is pertinent to mention here that respondent No.3 has taken action against the petitioners by withdrawing the notification through, impugned letter, dated 18‑9‑1998 but the respondents Nos. l to 2 did not take any action against their own subordinates who excessed the price over and above the market price of the land in question. In this view of the matter, the Member Board of Revenue is directed to constitute a high powered committee to find out who is responsible for determining the price of the land in question over and above the market price. In case the committee finds any person guilty then action be taken against the responsible officer/officers under E & D Rules.

In view of what has been discussed above, the writ petition is disposed of with the aforesaid observation.

Q.M.H./M.A.K./F‑21/L Order accordingly.

2001 C L C 252

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD ISMAIL ‑‑‑Petitioner

versus

MAQBOOL AHMAD and 8 others‑‑‑Respondents

Civil Revision No. 26 of 1995 and Civil Revision No. 1568 of 1999, heard on 4th February, 2000.

(a) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 54‑‑‑Sale of tangible immovable property‑‑‑Passing of title‑‑‑Valid title cannot be passed ‑ to the buyer unless a registered sale‑deed is executed.

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

‑‑‑‑S. 12‑‑‑Suit for possession‑‑‑Electricity connection, whether a proof of right in suit property‑‑‑Electricity is not provided to the owners only but any occupant can get its connection after fulfilling the formalities required by Power Supplying Authority‑‑‑Such installation of electricity connection does not confer any right in the suit property.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 1.02 & 103‑‑‑Evidence‑‑‑Documentary evidence‑‑‑Oral evidence cannot be given preference over documentary evidence.

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

‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Revision‑-‑Barred by more than four years‑‑‑Plaintiff in his suit for possession failed to establish that the suit property was sold in his favour by the defendant‑‑‑Trial Court, on the basis of oral evidence, decreed the suit but the same was dismissed by the Lower Appellate Court‑‑‑Validity‑‑‑Suit was a counterblast to the suit filed by the defendant‑‑‑Lower Appellate Court had properly appreciated the evidence on record and judgment was supported by cogent evidence which called for no interference‑‑‑Revision petition was barred by more than four years and no sufficient ground was shown for seeking condonation of delay‑‑‑Revision was dismissed in circumstances.

Malik Muhammad Ashhab for Petitioner.

Khan Zahid Hussain Khan for Respondents.

Date of hearing: 4th February; 2000.

2001 C L C 256

[Lahore]

Before Tanvir Ahmad Khan, J

Messrs Syed TASNIM HUSSAIN NAQVI‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN through

Secretary/Chairman, Railway Board, Islamabad

and 10 others‑‑‑Respondents

Writ Petition No.13109 of 2000, decided on 11th August, 2000.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Exercise of discretion on whimsical ground‑‑‑Validity‑‑‑Accepting or rejecting pre‑qualification application for tender‑‑‑Scope‑‑‑Where the Competent Authority has got ample discretion to accept or reject such application, the discretion is not of personal nature attached to the holder of the office‑‑‑Such Authority cannot exercise its discretion on whimsical ground.

Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Railway contract, approval of‑‑­Petitioner was not declared qualified by the Vigilance Directorate of the Railway Authorities, to participate in the contract‑‑‑Railway Authorities only informed the successful contractors regarding the holding of the auction three days prior to the scheduled date‑‑‑News in two daily news paper was also flashed but on the day when the auction was to take place‑‑‑Competent Authority accepted/approved the contract on the same day in spite of the fact that the offer of the petitioner had already reached before the Authority alongwith Bank draft for a sum of Rs.10 lacs‑‑‑Offer of the petitioner for the contract was for a sum of Rs.8 crores whereas Railway Authorities accepted the contract for a sum of Rs.6 crores‑‑‑Petitioner was disqualified on account of his litigation with the Railway Authorities in some earlier contract whereas that matter was sub judice before Supreme Court‑‑‑Offer of the petitioner was not accepted by the Authorities on the ground that tendered amount could not be recovered by the contractor unless involved in malpractice‑‑‑Validity‑‑‑Simply on the ground that the petitioner had given a higher offer for the contract would not deprive him of his right particularly so when the contract on the face of it was neither open nor transparent‑‑‑ Where the Railway Authorities, without taking into consideration the interest of the exchequer, in a very hastily manner, had dolled up the contract for Rs.6 crores, such auction could not be sustained on any ground same having been made without lawful Authority and being of no legal effect‑‑‑High Court directed the Railway Authorities to hold fresh auction by making baseline of the same at Rs.8 crores.

Dawood Corporation (Private) Limited and another v. The Director General Department of Supplies, Government of Pakistan, Ministry of Industries, Karachi and 2 others 1988 CLC 788; Mahabir Auto Stores and others v. Indian Oil Corporation and others AIR 1990 SC 1031; Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v Government of Pakistan through Secretary Finance, Islamabad and others 1998 SCMR 1404, Tata Cellular v. Union of India AIR 1996 SC 11; Syed 10 Sarfraz Hussain Bukhari v. District Magistrate, Kasur and another PLD 1983 SC 172; Messrs Muhammad Safdar & Co. v.' The Province of the Punjab PLD 1996 Lah. 22; Javaid Iqbal Abbasi & Co. v. Province of Punjab and 6 others 1996 SCMR 1433; Muhammad Shafiq Khan v. Secretary to the Government of the Punjab Local Government and Rural Department, Lahore and 2 others 1996 CLC 2045 ref.

Ali Ahmed Awan, Ashtar Ausaf Ali, Ind Ahmad Awan and Khalid Mehmood Ansari for Petitioner.

Syed Afzal Haider, Jahangir A. Jhoja for Respondents Nos. l to 6. Irfan Qadir for Respondents Nos. 8 and 11.

Dates of hearing: 18th and 20th July, 2000.

2001 C L C 265

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑I)

MUHAMMAD ALI and 6 others‑‑‑Petitioners

versus

Mst. HAMEEDAN BEGUM‑‑‑Respondent

R. O. R. No. 1079 of 1996, decided on 20th July, 2000.

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

‑‑‑‑Ss. 135 & 161‑‑‑Application of partition‑‑‑Rejection‑‑‑Appeal‑‑‑Delay, condonation of‑‑‑Application for partition of land having been rejected by Assistant Collector, Grade‑I, applicant filed appeal against the same which was accepted by Collector despite being hopelessly time‑barred, after condoning delay although no satisfactory explanation was given for condonation of delay in filing appeal‑‑‑Validity‑‑‑Delay of even one day was fatal in absence of any satisfactory explanation‑‑‑Court was duty bound to take cognizance of delay even if limitation was not set up as a defence by any party‑‑‑Arguments against or in support of proposition whether S.5 of Limitation Act, 1908 was applicable to cases covered under West Pakistan Land Revenue Act, 1967 being special and local law, could not be of any benefit to either party‑‑‑In absence of any satisfactory explanation for delay in filing appeal, Collector was not justified to condone the delay.

1992 CLC 1609; 1980 CLC 110; PLD 1970 Lah. 6; 1985 SCMR 356; PLD 1987 SC 636; 1988 CLC 654; PLD 1973 Lah. 546; 1978 SCMR 457 and 1984 CLC 1724 ref.

Ch. Muhammad Hussain for Petitioners.

Alamgir for Respondents.

2001 C L C 272

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD IQBAL KHAN and 2 others‑‑‑Appellants

versus

KHAN MUHAMMAD and 2 others‑‑‑Respondents

Regular Second Appeal No.350 of 1977, heard on 28th March, 2000.

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 15 & 16‑‑‑Rehabilitation Settlement Scheme, Part I, Chap. II, para.7‑‑‑Allotment of land‑‑"Full proprietary rights" and "mortgagee rights"‑‑‑Distinction‑‑‑Evacuee who was full owner of lands left behind by him in the areas forming part of India, was entitled to allotment of land in Pakistan‑‑‑Evacuee owners of mortgagee rights, however, had no statutory right to allotment of land in Pakistan.

Muhammad Yaqub v. Member, Board of Revenue PLD 1973 SC 304 distinguished.

(b) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

‑‑‑‑Ss. 3 & 5‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 15 & 16‑‑‑Rehabilitation Settlement Scheme, Part I, Chap. II, para.7‑‑­Limited estate‑‑‑Right of widow over income out of such estate‑‑‑Property purchased out of such income, whether exclusive ownership of widow‑‑­Disputed property was purchased by the widow out of income received from limited estate‑‑‑Such payment was made under the provisions of Rehabilitation Settlement Scheme‑‑‑Plea was that as the property was purchased from income of limited estate, the widow was not the exclusive owner of the same‑‑‑Validity‑‑‑Where the land in question was allotted/purchased by the widow against mortgagee rights of her deceased husband and the amount for such allotment/purchase was made out of income received from the limited estate, widow would not become trustee for the reversioners and she would acquire the land as her own exclusive property r, r not forming part of the estate.

Jagat Singh and others v Mst. Raj Devi and others AIR 1938 Lah. 554 fol.

Muhammad Yaqub v. Member, Board of Revenue PLD 1973 SC 304 distinguished.

Sher Muhammad v. The Additional Rehabilitation Commissioner PLD 1968 Lah. 329; The Additional Settlement Commissioner (Lands), Sargodha v. Muhammad Shafi and others PLD 1971 SC 791; Dal Singh v. Bukhsheesh Singh and another 19 IC 8; Durga Kunwar v. Matrumal and others 19 IC 138; Mushtaq Ahmed alias Mushtaq Hussain v. Mst. Hakim Bibi PLD 1969 SC 338 and Mst. Began v. Mst. Bai PLD 1971 Lah. 567 ref.

Mian Shamsul Haq Ansari, Kanwar Akhtar Ali and Kanwar Muhammad Younas for Appellants.

Shahzad Shaukat for Respondents.

Date of hearing: 28th March, 2000.

2001 C L C 280

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial-1)

ALLAH WASAYA and another‑‑‑Petitioners

versus

FALAK SHER and another‑‑‑Respondents

R.O.R. No.724 of 1999, decided on 1st August, 2000.

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

‑‑‑‑Ss. 42 & 164‑‑‑Gift‑‑‑Validity of entry of gift in mutation ‑‑‑Revision‑‑­Donor/father of parties gifted his land to his three sons, excluding respondent the fourth one‑‑‑Entry of mutation, though was made in mutation register, but could not be sanctioned due to non‑payment of District Council fee‑‑‑Contention was that all legal requirements of gift like offer, acceptance and delivery of possession in the context of gift were complete‑‑­Respondent/left out son of donor had challenged gift in favour of donees alleging that report in Roznamcha Waqiati on basis of which mutation of gift was attested, could not be made basis of forged gift‑‑‑Authority below was directed that disputed mutation of gift should be decided in open assembly after hearing respondent, but the Authority had not given opportunity of hearing to respondent at the time of attestation of mutation in question‑‑­Validity‑‑‑Mutation in dispute having been attested after death of donor, Revenue Officer should have made order under S.42(6) of West Pakistan Land Revenue Act, 1967 in presence of person/respondent whose right had been acquired‑‑‑Since donor was no longer alive when mutation of gift was sanctioned the same was sanctioned in contravention of mandatory provisions of law‑‑‑Whether donor and donee had accepted offer and delivery of possession took place before demise of donor, were matter which ought to have been taken to and adjudicated upon by Civil Court‑‑‑Since respondent had right to inherit property left by his father, gift in favour of petitioner/donee was ordered to be struck down.

PLD 1966 W.P. (Rev.) 78 and 1984 MLD 272 ref.

Ch. Abdul Saleem for Petitioners.

Ch. Muhammad Zafar Iqbal for Respondents.

2001 C L C 283

[Lahore]

Before Muhammad Akhtar Shabbir

and Nasim Sikandar, JJ

COLLECTOR OF CUSTOMS AND CENTRAL

EXCISE, CUSTOM HOUSE, MULTAN‑‑‑Appellant

versus

Messrs HABIB RAFIQUE‑‑‑Respondent

Custom Appeal No.48 of 1998, decided on 10th April, 2000.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 156(1), cf. (2) & 196‑‑‑Notification S.R.O. No.279(i)/94, dated 2‑4‑1994‑‑‑Violation of conditions of Notification S.R.O. No.279(i)/94, dated 2‑4‑1994‑‑ ‑ Removal of duty‑free material to some other projects‑‑‑ Respondent imported duty free material under the Notification for one project but removed that material to be used in another project of similar nature‑‑‑Customs Authorities intercepted the material and penalty of fine was imposed on the respondent‑‑‑Order of Customs Authorities was set aside by Customs, Excise and Sales Tax Appellate Tribunal on the ground that the material and equipment having been mentioned in the relevant notification no violation of any condition of the notification was committed by the respondent‑‑‑Validity‑‑‑Customs Authorities had rightly taken that the removal of the material from authorised project to unauthorised project was a violation of conditions of Notification S.R.O. No.279(i)/94, dated 2‑4‑1994‑‑‑Tribunal failed to appreciate that the use of material imported under concessionary notification was per se a violation of the concession and needed. to be dealt with under the provisions of Customs Act, 1969‑‑‑Order of Tribunal was set aside and that of the Authorities was restored in circumstances.

Ch. Sagheer Ahmad for Appellant.

2001 C L C 286

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑I), ABDUL SHAKOOR and others‑‑‑Petitioners

versus

FAZAL DIN and others‑‑‑Respondents

R.O.R. No.30 of 1992, decided on 10th October, 2000.

West Pakistan Land Revenue Act (XVH of 1967)‑‑‑

‑‑‑‑Ss. 42 & 164‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Correction in Revenue Record‑‑‑Revision‑‑‑Respondents who were recorded as tenants in Register Haqdaran Zamin in respect of land in dispute, claimed that they had acquired certain rights in their tenancy on basis of agreement to sell‑‑­Revenue Authorities below changed entries in Revenue Record in accordance with alleged agreement of sale in favour of respondents‑‑‑Application of petitioners for correction of Register Haqdaran Zamin and Register Girdawari were turned down by District Collector and also by Additional Commissioner on ground that long‑standing entries in Revenue Record could not be changed‑‑‑Agreement to sell would not create any title in favour of respondents/prospective transferees as no charge or right could be created in favour of respondents unless agreement was completed between the parties or decree obtained in suit for specific performance‑‑‑Since no right or title was created, respondents being prospective acquirors of right, could not even invoke provisions of S.42 of West Pakistan Land Revenue Act, 1967 to have the entry recorded in Roznamcha Waqiati and Register of Mutations‑‑­Perception of Revenue Officers that a right was created in favour of respondents on basis of agreement to sell, could not be allowed to subsist by an entry in Revenue Record‑‑‑Orders of Authorities below were set aside in revision by the Board of Revenue.

1994 SCMR 1188 and 1989 SCMR 949 ref.

Rafiq Javaid Butt for Petitioners.

Asghar Ali for Respondents Nos. l to 4.

Remaining Respondents: Ex parte.

2001CLC289

[Lahore]

Before Muhammad Akhtar Shabbir, J

Messrs ALPHA INSURANCE CO. LIMITED‑‑‑Appellant

versus

Messrs CH. NIZAM DIN & SONS and another‑‑‑Respondents

First Appeal from' Order No.30 and Cross‑Objection No.3‑C of 1995, decided on 4th July, 2000.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 75 & 76‑‑‑Arbitration Act (X of 1940), Ss.30 & 33‑‑‑Secondary evidence‑‑‑Filing of objections to award by an unauthorised person‑‑‑Power of attorney was neither registered nor the same was attested by Notary Public‑‑‑Validity‑‑‑Where the executant of power of attorney was alive at the time of recording of evidence and did not appear in evidence nor the original document was produced on record, copy of such power of attorney was not proved in accordance with provisions of Arts.75 & 76 of Qanun‑e‑Shahadat, 1984‑‑‑Inadmissible document could not be read in evidence and the same was excluded from consideration‑‑‑Power of attorney was not proved on the basis of which the objections were filed by a person not authorised and competent to sign, verify and file the objections‑‑‑Objections filed by such person were considered non‑existent in circumstances.

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

---‑O.III, Rr. 1 & 2‑‑‑Appearance through counsel‑‑‑Appointment of counsel by unauthorised person‑‑‑ Effect‑‑‑Where proceedings were initiated by unauthorised person, the appointment of counsel by such unauhorised person was not valid.

Thal Development Authority v. Nisar Ahmed Qureshi PLD 1962 (W.P.) Lah. 830 ref.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 8‑‑‑Appointment of arbitrator‑‑‑Powers of Court‑‑‑Provisions of S.8, Arbitration Act, 1940 are applied to such cases where the arbitrator of arbitrators are to be appointed by the consent of all parties and not to those where each party is to appoint his own arbitrator.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 9(b)‑‑‑Sole arbitrator‑‑‑Failure to appoint substitute arbitrator within specified time‑‑‑Effect‑‑‑Such failure would justify the appointment of arbitrator by the other party to act as sole arbitrator.

Haroon Oil Mills v. Kohinoor Cotton Ginning Factory PLD 1961 Kar. 175; Abdul Hakim K. Khan v. Begum Khanum Jan and others 1989 MLD 1304 and Azhar Farooaui v. Pervez Anwar and another 1986 CLC 359E ref.

(e) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 9‑‑‑Notice, issuance of‑‑‑Failure to receive the notice issued by sole arbitrator‑‑‑Onus to prove‑‑‑Where registered notice was issued by the sole arbitrator to the other party, presumption was that the notice was issued‑‑­Burden was upon the other party to prove that he was not served.

Paracha Textile Mills Ltd., Karachi v. Nanikaram Shamandas PLD 1977 Kar. 37 ref.

(f) Arbitration Act. (X of 1940)‑‑‑

‑‑‑‑S. 31‑‑‑Award‑‑‑Examination of legality of award‑‑‑Jurisdiction of Court‑‑‑Scope‑‑‑ Court while examining the legality of award does not act as a Court of appeal‑‑‑In order to discover error or infirmity in the award, the Court, while hearing the objections to the award, cannot undertake re­appraisal of evidence recorded by the arbitrator.

Messrs Joint Venture/Rist through D.P. Giesler G.M. Bangard Strassee 34000 Dusseldorf 30; Federal Republic of Germany v. Federation of Pakistan PLD 1996 SC 108; Zaka Ullah Khan v. Government of Pakistan through Secretary, Building and Roads Department PLD 1998 Lah. 132 and Champsey Bhara Company v. Jivarajh Ballooc Spinning and Weaving Company AIR 1923 PC 66 ref.

(g) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Preamble‑‑‑Law leans in favour of upholding the award and not vitiating the same.

Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1985 SCMR 597 and Abdul Rouf v. Muhammad Saeed Akhtar PLD 1985 W.P.) Kar. 145 ref.

(h) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 39‑‑‑Objections against award‑‑‑Refusal to set aside award‑ ‑‑Award was given by sole arbitrator for the reason that the appellant failed to appoint his arbitrator in the specified period‑‑‑Trial Court set aside the objections on the ground that notice was duly served on the appellant and the sole arbitrator had rightly given the award‑‑‑Validity‑‑‑Where award passed by arbitrator was without lawful authority and suffered with illegalities and infirmities, the same would not be immune from the judicial scrutiny of the Court, otherwise the Court would uphold the award and not vitiate the same‑‑‑Appellant having failed to point out any glaring illegality in the judgment of the Trial Court which could call for interference, findings of Trial Court were maintained by High Court.

Messrs Muhammad Siddique, Muhammad Usman v. The Australia Bank Ltd. PLD 1996 SC 684; Abubakar Saleh v. Abbot Laboratories 1987 CLC 367; Millat Tractors Ltd. v. Ch. Tawakal Ullah NLR 1991 AC 432; Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lah. 381; Water and Power Development Authority v. Saeed Badar PLD 1991 SC 660; Harihar Banerji and others v. Ramshashi Roy and others AIR 1918 PC 102; Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1985 SCMR 597 and Abdul Rouf v. Muhammad Saeed Akhtar PLD 1985 (W.P.) Kar. 145 ref.

(i) Arbitration Act (X of 1940)‑‑‑---

‑‑‑‑S. 29‑‑‑Award‑‑‑Interest on the award till actual payment ‑‑‑Validity‑‑­Interest having been declared against Injunctions of Islam, same was not granted.

Dr. M. Aslam Khaki v. Syed Muhammad Hashim and 2 others PLD 2000 SC 225 ref.

Mian Abbas Ahmed for Appellants.

Ch. Imdad Ali Khan for Respondents.

Date of hearing: 12th June, 2000.

2001 C L C 307

[Lahore]

Before Amir Alam Khan, J

PAKISTAN INDUSTRIAL CREDIT AND

INVESTMENT CORPORATION‑‑‑Petitioner

versus

UNITED TEXTILE MILLS LTD. ‑‑‑Respondent

C.O. No.23 of 1975, decided on 25th October, 2000.

Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 401 & 404‑‑‑Provincial Insolvency Act (V of 1920), S.47(2)‑‑­Winding up of company‑‑‑Appointment of Official Liquidator by Court‑‑­Sale under Court's order of the commodity which was pledged with the creditor Bank‑‑‑Official liquidator deposited the amount realized from the said sale with the creditor Bank in his own name and in shape of Term Deposit Receipt‑‑‑Creditor Bank refused to encash the said Term Deposit Receipt with interest on the ground that Bank being a secured creditor was entitled' to adjust the amount of Term Deposit Receipt towards the amount of loan advanced to the company under liquidation‑‑‑Validity‑‑‑Creditor Bank having entered the liquidation proceedings was to line up with the other creditors to wait and obtain its share from the liquidation proceedings‑‑‑Cash in question deposited by the Liquidator could not, by any stretch of imagination, be treated as security‑‑‑Creditor Bank, therefore, was not entitled to retain the amount of Term Deposit Receipt with interest deposited by the liquidator ‑‑‑High Court directed the Bank to encash the Term Deposit Receipt with interest and deliver to the official liquidator.

Moti Ram v. E.H. Rodwell and another AIR 1923 All. 159 ref.

M. Naeem Sehgal for Petitioner.

S.M. Zamir Zaidi and Mian Abdul Rashid for Respondents.

2001CLC314

[Lahore]

Before Mian Saqib Nisar, J

SAID MUHAMMAD ‑‑‑Petitioner

versus

PROVINCE OF THE PUNJAB through

Collector, District Gujrat and 9 others‑‑‑Respondents

Civil Revision No.74‑D of 1986, heard on 5th October, 2000.

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S. 2‑‑‑Pending proceedings‑‑Revival of revision after repeal of Evacuee Laws‑‑‑ Revision consigned to Record Room for want of correct address of the respondents‑‑‑Effect‑‑‑Matter was pending before Notified Officer for the purposes of S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975‑‑‑Consignment of a case to record room did not mean the disposal of the matter or termination of the lis‑‑‑Such consignment was temporary arrangement where it was considered by the concerned Authority that the matter could not proceed for the time being and, therefore, no further action was called for‑‑‑Revision was pending at the time of the repeal of Evacuee Laws and the same was revived and heard for valid reasons accordingly.

Messer Delite House Ltd. v. Fayyaz Akbar 1989 SCMR 595 ref

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S. 2‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.10‑‑‑Evacuee property, auction of‑‑‑Disputed property was allotted to the petitioner on 30‑6‑1960 and Permanent Transfer Deed was also issued in his favour‑‑‑Respondent himself claimed to be auction ­purchaser of 1 /2 share of the suit property‑‑‑Settlement Authorities on revision application by the allottee set aside the auction proceedings‑‑­Auction‑purchaser assailed the order of Notified Officer in civil suit and Trial Court set aside the order passed by the Notified Officer and decreed the suit‑‑‑Lower Appellate Court reversed the findings of the Trial Court and restored the order of the Notified Officer‑‑‑Validity‑‑‑Where entire house was allotted to the allottee, and it was so mentioned in the Permanent Transfer Deed, the entire house went out of compensation pool, therefore, the Settlement Authorities, in law, had no jurisdiction to sub‑divide the property and put for auction any portion thereof‑‑‑Suit property was never sub‑divided by any competent officer and the same was never treated as a separate unit of the main house‑‑‑Lower Appellate Court had rightly concluded that the suit property was transferred to the allottee as a whole and portion thereof was not "an available property" which could be put to auction‑‑‑Auction in dispute was illegal and unlawful and judgment of Lower Appellate Court called for no interference.

Ch. Riasat Ali for Petitioner.

Shahid Hussain Qadri for Respondents.

Date of hearing: 5th October, 2000.

2001 C L C 318

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD RAFIQUE‑‑‑Appellant

versus

MUHAMMAD NAWAZ‑‑‑Respondent

Regular First Appeal No.39 of 1999, decided on 18th October, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXVII, Rr.2 & 3‑‑‑Negotiable Instruments Act (XXVI of 1881), S.4‑‑‑Recovery of money on the basis of pronote‑‑‑Execution of pronote admitted ‑‑‑Pronote whether to be treated as promissory note‑‑‑Plaintiff had established his case on the basis of evidence both documentary as well as oral and the Trial Court decreed the suit against the defendant ‑‑‑Validity‑‑­Pronote could be executed to secure the payment of monetary obligations even where there was no debt or payment involved not necessary that payment should be contemporaneous with the execution of pronote‑‑­Contents of the document would bring the document within the definition of promissory note‑‑‑Heading given to such document was not legally relevant‑‑‑Document forming basis of the decree against the defendant was in fact a promissory note as defined in S.4 of Negotiable Instruments Act, 1881, even though the same was described as a pronote‑‑‑Provisions of Negotiable Instruments Act, 1881, did not make a promissory note invalid, if consideration for execution of the same was not contemporaneous with such execution.

Nasir Hussain Haideri for Appellant.

Malik Mehboob Ali Sindeela for Respondent.

Dates of hearing: 27th September and 18th October, 1999.

2001 C L C 322

[Lahore]

Before Maulvi Anwarul Haq, J

SHER KHAN and another‑‑‑Petitioners

versus

ANWAR SAEED and 2 others‑‑‑Respondents

Writ Petition No.5152 of 1998, decided on 14th June, 1999.

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

‑‑‑‑S. 12(2)‑‑‑Degree, setting aside of‑‑‑Plea of fraud‑‑‑Contention that the decree could only be .set aside where fraud was committed ‑‑‑Validity‑‑­Decree could as well be set aside on the basis of misrepresentation under the provision of S.12(2), C.P.C.

Allah Wasaya and others v. Irshad Ahmad and others 1992 SCMR 2184 ref.

(b) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑S. 50‑‑‑Registered document‑‑‑Credibility‑‑‑Registered document has to take precedence over unregistered document.

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

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Constitutional petition‑‑‑Decree, setting aside of‑‑‑Plea of misrepresentation and fraud‑‑­Respondent was having a registered sale‑deed qua the suit property in his favour‑‑‑Suit was decreed in favour of the petitioner on the basis of unregistered agreement while the respondent was not a party to the suit‑‑­Application under S.12(2), C.P.C. filed by the respondent in the Trial Court was dismissed but the lower Appellate Court allowed the revision and the decree was set aside‑‑‑Validity‑‑‑Agreement in favour of the petitioner, prima facie, appeared to be inequitable and violative of the time honoured principle that there could be no clog on the equity of redemption‑‑‑Appellate Court had passed a lawful order which promoted the ends of justice‑‑‑High Court refused to interfere in exercise of Constitutional jurisdiction.

S.R. Masood Gangohi for Petitioners.

Abdur Razzaq Kamboh for Respondent No. 1.

Nemo for Respondent No.2.

Dates of hearing: 11th and 14th June, 1999.

2001 C L C 330

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. SADIA KHAN‑‑‑Petitioner

versus

MUHAMMAD ASIM KHAN and another‑‑‑Respondents

Writ Petition No.26010 of 1998, decided on 5th May, 1999.

(a) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑‑

‑‑‑‑S. 7‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Notice of divorce, withdrawal of‑‑‑Such notice 'was given to the Chairman, Arbitration Council on 31‑7‑1997 by the husband but the same was withdrawn on 17‑9‑1997‑‑­Contention by wife was that the divorce had become effective‑‑‑Husband assailed the notice of Talaq in a declaratory suit on the grounds of undue influence, fraud, misrepresentation and coercion‑‑‑While the suit was pending before a Court of competent jurisdiction, Constitutional petition was filed‑‑‑Validity‑‑‑Court could take notice of subsequent events‑‑‑Where the matter was pending adjudication before the competent Court for adjudication of divorce deed, question regarding the validity of the deed would be determined by that Court‑‑‑Wife would be well within her rights to rebut the assertions of the husband by filing written statement in the suit or to file independent suit‑‑‑High Court refused to give any finding about the contention of the parties, lest the case of either party might be prejudiced‑‑­Constitutional petition was dismissed accordingly.

Muhammad Sarwar's case PLD 1988 FSC 42; Allah Ditta's case 1992 SCMR 1273; Rehmat Ara's case 1998 MLD 486; Dr. Iftikhar Ahmad's case 1997 CLC 1985; Mst. Kaniz Fatima's case PLD 1993 SC 901 and PLD 1989 Lah. 490 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Disputed facts‑‑‑Factual controversies cannot be resolved in Constitutional jurisdiction of High Court.

1993 SCMR 618 rel.

Tariq Shakoor for Petitioner.

Shahid Bilal Hassan for Respondents.

Date of hearing: 5th May, 1999.

2001 C L C 338

[Lahore]

Before Sheikh Abdur Razzaq, J

Mst. BAKSHISH and others‑‑‑Petitioners

versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Writ Petition NoA12 of 2000, heard on 10th April, 2000.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 5, Sched. & 14‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Suit for maintenance‑‑‑Appeal against judgment and decree of Trial Court‑‑‑Petitioner (wife) filed suit for maintenance for herself and for her son whereas (husband) filed suit for restitution of conjugal rights‑‑‑Trial Court decreed the suit of the wife but in appeal allowance of son was maintained but that of wife was refused‑‑‑Suit of husband for restitution of conjugal rights was also decreed‑‑‑Judgment of Appellate Court was challenged by wife in Constitutional petition contending that Appellate Court below having not appreciated evidence on record properly, High Court could embark upon appraisal of evidence brought on record‑‑‑Validity‑‑‑Evidence could be appraised by Appellate Court only and not by High Court in exercise of its Constitutional jurisdiction‑‑‑Petitioner having failed to point out any irregularity or jurisdictional defect in judgment passed by Appellate Court below,, finding of fact recorded by it, could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Malik Ghulam Rasool for Petitioners.

Muhammad Shoaib Abbasi for Respondents.

Date of hearing: 10th April, 2000.

2001 C L C 340

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑I)

SHAFIQUE AHMAD and others‑‑‑Petitioners

versus

MUHAMMAD AKBAR and others‑‑‑Respondents

R.O.R. Nos.3715, 3716, 3717 and 3718 of 1995, decided on 3rd August, 2000.

Colonization of Government Lands (Punjab) Act (Y of 1912)‑‑‑

‑‑‑‑S. 10‑‑‑West Pakistan land Revenue Act (XVII of 1967/, S.164‑ Allotment of land‑‑‑Conversion of classification of land‑‑-Revision petition‑‑‑Collector allotted land reserved for common use of community to petitioners converting .same for use of residential purposes of petitioners‑‑­' Larger interest of community could not be allowed to be hurt for convenience of a few‑‑‑Even otherwise Collector had no power to convert classification of land‑‑‑Order of Collector suffering from legal infirmity was set aside in revision by Additional Commissioner.

Sheikh Abdul Latif for Petitioners.

Ch. Ihsanullah for Respondents.

2001 C L C 342

[Lahore]

Before Ch. Ijaz Ahmad and Muhammad Zafar Yasin, JJ

Malik NISAR AHMED ‑‑‑Appellant

versus

Messrs KOHISTAN GOODS FORWARDING

AGENCY and 4 others‑‑‑Respondents

Intra‑Court Appeal 344 in Writ Petition No.829 of 1999, heard on 19th June, 2000.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court has jurisdiction only to interpret the law and has no jurisdiction to take the role of policy‑maker‑‑‑High Court can only set aside the action of Government functionaries if the same is based on mala fide and in violation of rules and regulations.

Zia‑ur‑Rehman's case PLD 1973 SC 49; Mian Nawaz Sharif's case PLD 1993 SC 473 and Akhtar Mir's case 1984 SCMR 433 ref.

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

‑‑‑‑Art. 199‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑‑Decision on disputed question of fact, in exercise of Constitutional jurisdiction by High Court‑‑‑Advisability‑‑‑Petitioner approached the High Court with unclean hands‑‑‑Award of contract on the direction of High Court in exercise of its Constitutional jurisdiction‑‑‑Validity‑‑‑Both the parties raised counter‑version before the High Court but the High Court, without adverting to the contentions qua the disputed question of fact, directed the Authorities to award contract to the respondent as such the same was not in accordance with law‑‑‑Where the petitioner had approached the High Court by concealing the material facts, High Court erred in law to exercise discretion in favour of the petitioner.

Agricultural Development Bank of Pakistan's case 1997 SCMR 1089; Millat Tractor Employees' case PLD 1992 Lah. 68 and Messrs M.Y. Khan & Company and another's case 1987 MLD 2581 ref.

Muhammad Younas Khan's case 1993 SCMR 618; Nawabzada Ronaq Ali's case PLD 1973 SC 326; Rana Muhammad Arshad's case 1998 SCMR 1462 and G.M. Malik's case 1983 SCMR 196 fol.

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

‑‑‑‑Art. 4‑‑‑Public functionaries, duties of‑‑‑Scope‑‑‑Public functionaries are bound to act in accordance with law, without fear, favour and nepotism.

Zahid Akhtar's case PLD 1995 SC 530 and Shaukat Ali's case PLD 1997 SC 342 ref.

Muhammad Saeed Ahmad for Appellants.

Taffazul Haider Rizvi for Respondent No. l .

Muhammad Aslam Sindhu for the Railway.

Date of hearing: 19th June, 2000.

2001 C L C 345

[Lahore]

Before Sheikh Abdur Razzaq, J

Mst. KHANUM JAN‑‑‑Petitioner

versus

MEMBER, BOARD OF REVENUE and others‑‑‑Respondents

Writ Petition No.363 of 2000, decided on 24th February, 2000.

Punjab Tenancy Act (XVI of 1887)‑‑‑

‑‑‑‑S. 70‑‑‑Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977, R.6‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Ejectment of tenant‑‑‑Petition for grant of compensation‑‑‑Tenants who were ejected from land in dispute filed petition for grant of compensation, which was dismissed by Tehsildar and said order was upheld up to the Board of Revenue‑‑‑Tenants had contended that Tehsildar while dismissing their petition had not conducted any investigation as required under S.70 of Punjab Tenancy Act, 1887 and under R.6 of Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977, and that petitioners were not given any notice of rejection of their petition and Tehsildar had no jurisdiction in the matter after expiry of sixty days‑‑‑Validity‑‑‑Order passed by Board of Revenue upholding order of Tehsildar had revealed that all contentions raised by petitioners before High Court had been looked into by Tehsildar while passing order‑‑‑Tenants having enjoyed benefit of the land for four decades without paying a single penny to landlords, all Courts below were justified in holding that they were not entitled to any compensation‑‑­Concurrent orders of Courts below having been passed in accordance with law, could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Muhammad Raft and others v. Additional Commissioner (Rev.), Sargodha and others 1981 SCMR 1181 ref.

Mian Abdul Rauf for Petitioner.

Date of hearing: 24th February, 2000.

2001 C L C 355

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

MUHAMMAD ASHRAF and 7 others‑‑‑Petitioners

versus

PROVINCE OF PUNJAB through Secretary, Rehabilitation, Lahore and 4 others‑‑‑Respondents

Writ Petition No.547 of 1976, heard on 9th December, 1999.

Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (XXV of 1975)‑‑‑

‑‑‑‑Ss. 2 & 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Forum deciding effect of provisions of S.3, Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975‑‑­Dispute with regard to pendency of proceedings under S.2 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975, before Assistant Commissioner‑‑‑Validity‑‑‑Forum before which the application under S.2 of the Act was pending was to decide as to the effect of S.3 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975‑‑‑Where the decision rendered was that the application was competent, the same would be heard and decided on merit and where the forum concluded that the parties should go to Civil Court, the order would be passed accordingly‑‑‑Maintainability of petition under S.2 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 was to be examined under S.3 of the Act by the forum concerned which was to render the decision in accordance with law.

Ch. Qadir Bakhsh for Petitioners.

Zahid Hussain Khan for Respondents.

Date of hearing: 9th December, 1999.

2001 C L C 357

[Lahore]

Before Sheikh Abdur Razzaq, J

ASTASAB HUSSAIN ‑‑‑Petitioner

versus

SARFRAZ KHAN JHAWARI and others‑‑‑Respondents

Writ Petition No.2280 of 1999, heard on 28th February, 2000.

Guardians and Wards Act (VII of 1890)‑‑

‑‑‑‑S. 25‑‑‑Constitution of Pakistan (1973), Art.199 ‑‑‑ Constitutional petition‑‑‑Custody of minor ‑‑‑Welfare of minor‑‑‑Petitioner (father of minor) who was living abroad contended that he had got his visa cancelled and ire had decided to settle down in Pakistan‑‑‑Such fact alone was not to be kept in mind while deciding question of welfare of minor‑‑‑Custody of minor, who was living with his mother, since his birth, could not be handed over to an alien father who at the fag‑end had decided to settle in Pakistan‑‑‑Past conduct of parties had to be evaluated while deciding sensitive issue of custody of minor‑‑‑Father was abroad when minor was born and he had not paid a single penny to wife as maintenance allowance since birth of the child‑‑‑Father had no knowledge as to the details of education of the minor‑‑­Father himself was not a properly educated person and was ignorant about educational qualification of his wife‑‑‑Father had filed application for custody of minor as a counterblast and not for any love and affection for the minor as wife had already filed suit for maintenance against him‑‑‑Courts below in circumstances, had rightly decided that welfare of minor lay in allowing custody of minor with mother of minor.

Lt: Col. (Retd.) Ijaz Ali Khan v. Mst. Shaheen and 2 others 1993 CLC 2088; Muhammad Afzal v. Mst. Sameena Akhtar and another 1995 CLC 1519 and Syed Ali Mehdi v. Baqar Ali Rana, Additional District Judge, Islamabad and 2 others 1998 MLD 1003 ref.

Dr. Z. 'Babar Awan for Petitioner.

Sardar Muhammad Aslam for Respondent No.3.

Date of hearing: 28th. February, 2000.

2001 C L C 362

[Lahore]

Before Mian Saqib Nisar, J

SULTANA BEGUM and others‑‑‑Petitioners

versus

SARDAR ALI and others‑‑‑Respondents

No.673 of 1995, decided on 9th March, 2000.

(a) Prejudice---

‑‑‑‑Issuance of Permanent Transfer Deed, by Settlement Authorities ‑‑‑Non-­associating the petitioner in the proceedings of issuance of the Permanent Transfer Deed‑‑‑Where the petitioners remained unsuccessful up to Supreme Court after having full opportunity of hearing and the Settlement Authorities had only implemented the orders of High Court and Supreme Court, no prejudice was caused to the petitioners by Settlement Authorities while passing the orders of Permanent Transfer Deeds in compliance with the orders of the High Court and Supreme Court.

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

‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Delay, condonation of‑‑­Revision was barred by 31 days‑‑‑Cause of delay was alleged to be serious illness of the petitioner‑‑‑No proof was placed on record about the serious ailment of the petitioner which prevented her to challenge the judgment of Lower Appellate Court within time‑‑‑Effect‑‑‑Where the son of the petitioner was looking after the matter and nothing was shown that the son was also prevented by a sufficient cause to file the petition within time, delay was not condoned.

M.A. Zafar for Petitioners.

Tafazzal H. Rizvi for Respondent No. 1.

Khan Zahid Hussain for Respondent No.2.

2001 C L C 367

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ABU BAKAR AFTAB QURESHI‑‑‑Petitioner

versus

FEDERAL PUBLIC SERVICE COMMISSION through

Chairman, Islamabad and others‑‑‑Respondents

Writ Petitions Nos. 1522, 1538 and 1685 of 2000, decided on 22nd August, 2000.

Federal Public Service Commission Rules for Competitive Examination, 1999‑‑

‑‑‑‑‑. 7(viii)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Vires of R.7(viii) of Federal Public Service Commission Rules for Competitive Examination, 1999‑‑‑Re‑evaluation of marks obtained in examination by the candidate‑‑‑Candidate being dissatisfied with the result wanted to have his papers re‑evaluated‑‑‑Federal Public Service Commission turned down the demand of the candidate in view of R.7(viii) of the Federal Public Service Commission Rules for Competitive Examination, 1999‑‑­Validity‑‑‑Provision for re‑evaluation or prohibition on re‑evaluation in Calendars and Rules of Educational Institutions was not ultra vires of any law.

Avadhani Meena and others v. Board of Secondary Education KLR 1982 CC 300; Board of Intermediate and Secondary Education, Lahore v. Mst. Salina Afroz and 2 others PLD 1992 SC 263; Board of Intermediate and Secondary Education, Lahore v. Sauna Azad 1996 SCMR 676 and Tahir Saeed Qureshi v. Board of Intermediate and Secondary Education, Sargodha and 3 others 1996 SCMR 1872 ref.

Amjad Hameed Ghauri for Petitioner.

Raja Iftikhar Javed, Standing Counsel for the Federation.

Dates of hearing: 21st and 22nd August, 2000.

2001 C L C 375

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑I)

SHAUKAT ALI and 26 others‑‑‑Petitioners

versus

PROVINCE OF THE PUNJAB through

Secretary (Revenue), Punjab, Lahore‑‑‑Respondent

R.O.R. No.2469 of 1995, decided on 18th July, 2000.

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

‑‑‑‑Ss. 44, 45 & 172(vi)‑‑‑Allotment of land‑‑‑Jurisdiction of Civil Court to issue directions to Revenue functionaries‑‑‑Extent‑‑‑Directions could be issued by Civil Court to Revenue' functionaries to give effect to any determination made by it in respect of title, right, interest of an individual in some property.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑­-

‑‑‑‑Ss. 4.& 10‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975); S.2‑‑‑Repeal of Displaced Persons (Land Settlement) Act, 1958‑‑‑Effect‑ ‑‑Jurisdiction of Settlement Authority‑‑‑Settlement Authority could not interfere after repeal of Displaced Persons (Land Settlement) Act, 1958 except in cases which were instituted before 1‑7‑1974 or which had been remanded by Supreme Court or a High Court‑‑‑Allotment obtained on the basis of forged or fabricated orders was total nullity in the eyes of law and should be ignored as non‑existent and land should be treated as still available for disposal.

PLD 1991 SC 691 ref.

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

‑‑‑‑S. 164‑‑‑Revisional jurisdiction, exercise of‑‑‑Concurrent findings of Authorities below not suffering from any legal lacuna, could not be interfered with in revision.

Ch. Muhammad Rafique Warraich for Petitioners.

2001 C L C 385

[Lahore]

Before Muhammad Nawaz Abbasi, J

Messrs SHADMAN COTTON MILLS LIMITED, RAWALPINDI ‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Federal Secretariat, Islamabad and another‑‑‑Respondents

Writ Petition No. 505 of 1997, decided on 31st July, 2000.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 18‑‑‑Sales Tax Act (VII of 1990), S.13‑‑‑Customs duty and sales tax‑‑­Date for charging of such duties‑‑‑Dates of chargeability of customs duty and sales tax. are the date of filing of Bill of Entry and establishment of Letter of Credit respectively.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 19‑‑‑Service charges, imposition of‑‑‑Scope‑‑‑Imposition of such charges is illegal.

Collector of Customs and others v. Ravi Spinning Ltd. and others 1999 SCMR 412 rel.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 18 & 19‑‑‑Sales Tax Act (VII of 1990), S.13‑‑‑Notification No.S.R.O. 279(1)/94, dated 2‑4‑1994‑‑‑Customs duty and sales tax, recovery of‑‑‑Benefit under Notification No.S.R.O. 279(1)/94, dated 2‑4‑1994‑‑­Execution of Power Purchase Agreement with WAPDA and KESC or Government‑‑‑Only condition to avail the benefit under the notification was that the machinery and equipment being imported would be used for power projects without any requirement of such agreement.

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

‑‑‑‑Art. 25‑‑‑Principle of equality‑‑‑Exercise of discretion and reasonable classification‑‑‑Essential conditions‑‑‑All persons placed in similar circumstances must be treated alike and the reasonable classification must be based on reasonable grounds in a particular set of circumstances, but the same in any case must not offend the spirit of Art.25 of the Constitution‑‑­Person equally placed must be treated alike in the matter of privileges and liabilities under the rule of equal protection of law.

Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652; Messrs Gadoon Textile' Mills 'and others v. WAPDA and others 1997 SCMR 641; Government of Balochistan through Additional Chief Secretary v. Aziz‑ullah Memon and others PLD 1993 SC 341 ref.

(e) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 18 & 19‑‑‑Sales Tax Act (VII of 1990), S.13‑‑‑Notification No.S.R.O. 279(1)/94, dated 2‑4‑1994‑‑‑Customs duty and sales tax, recovery of‑‑‑Benefit under Notification No.S.R.O. 279(1)/94, dated 2‑4‑1994‑‑­Subsequent change in policy through legislative measures in the form of notifications‑‑‑Effect‑‑‑Rights already accrued under the original notification in favour of such importers would remain available to them till the date of withdrawal of the same.

Rafi‑ud‑Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1971 SC 252.ref.

(f) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.18 & 19‑‑‑Sales Tax Act (VII of 1990), S.13‑‑‑Notification NO.S.R.O. 279(1)/94, dated 2‑4‑1994‑‑‑Customs duty and sales tax, recovery of‑‑­Benefit under Notification No.S.R.O. 279(1)/94, dated 2‑4‑1994‑‑‑Execution of Power Purchase Agreement with WAPDA and KESC or Government‑‑­Operation of amending notification‑‑‑Retrospective effect‑‑‑Where the condition of execution of Power Purchase Agreement by the importers of equipment and machinery for Power Generation Projects was not made part of Notification No.S.R.O. 279(1)/94, dated 2‑4=1994, the exemption from payment of customs duty, sales tax, regulatory duty and Iqra surcharge subject to the fulfillment of the conditions contained in the notification would be available to all those importers of such machinery and _ equipment under the Power Policy of the Government, who had filed Bill of Entry or opened the Letter of Credit before 1‑7‑1995 on which date amendment in the notification was made without any discrimination as the amending notification would not be operative retrospectively‑‑‑Exemptions allowed under Notification No.S.R.O. 279(1)/94, dated 2‑4‑1994, would be available to all such importers till 1‑7‑1995, without any discrimination‑‑­Amended notification would take effect from the date. of its amendment.

Messrs M.Y. Electronic Industries Ltd. through Manager and another v. Government of Pakistan through Secretary Finance and others 1998 SCMR 1404 ref.

(g) Customs Act (IV of 1969)‑‑‑

‑‑‑Ss. 18(2) (3) (4) & 19‑‑‑Regulatory duty, levy of‑‑‑Jurisdiction of Government‑‑‑Exemption from payment of regulatory duty‑‑‑Provisions of S.18 of Customs Act, 1969, were valid and the regulatory duty would remain enforced from the date of publication of notification till the end of financial year during which the same was issued‑‑‑Regulatory duty being transitory in nature was always imposed subject to the limitations contained in S.18(2) (3) (4) of Customs Act, 1969, and also the existence of conditions essential for such levy ‑‑‑Government being entitled to exercise the discretion of levying such duty could continue the imposition of the duty through a fresh notification on the expiry of earlier notification if such conditions still existed‑‑‑Exemption from the payment of customs duty would not by itself exempt from the payment of regulatory duty unless the same was specifically provided through a notification under S.19 of Customs Act, .1969, and such notification could not ipso facto be applied to the duty not already enforced‑‑‑Where it was provided in the exemption notification, in addition to its application to the existing charge of customs duty, same could also cover future levy of such duty.

(h) Estoppel‑‑‑

‑‑‑‑Doctrine of promissory estoppel ‑‑‑Principle of‑‑‑Doctrine of promissory estoppel is founded on equity which arises when a person acting on the representation by the Government or a person competent to represent on behalf of the Government changes his position to his detriment, t4kes a decisive step, enters into a binding contract or incurs a liability‑‑­Government in such a case will not be allowed to withdraw from its prose or representation‑‑‑Doctrine of promissory estoppel cannot be invoked against the Legislature or the laws framed by it because the Legislature­ cannot make a representation.

(i) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 18(2) & 19‑‑‑Regulatory duty, exemption from‑‑‑Non‑mentioning of such duty in exemption notification under S.19 of Customs Act, 1969‑‑­Effect‑‑‑In absence of specific mention of regulatory duty in exemption notification, the customs duty would not include the regulatory duty leviable under S.18(2) of Customs Act, 1969‑‑‑Exeniption from regulatory duty could not be claimed in general under a notification giving such exemption beyond the financial year, during which the same was imposed.

(j) Customs Act (IV of 1969)‑‑‑ '

‑--‑‑Ss. 18 & 19‑‑‑Sales Tax Act (VII 'of 1900), S.13‑‑‑Notification NO.S.R.0.279(1)/94, dated 2‑4‑1994‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Customs duty, sales tax, regulatory duty and service charges, levy of‑‑‑Benefit of Notification No.S.R.O. 279(1)/94, dated 2‑4‑1994, withdrawal of‑‑‑Retrospective effect of the notification‑‑­Petitioners imported power generating plants under the power policy framed by the Federal Government‑‑‑Such duties were, exempted by the Government vide Notification S.R.O. No.279(I)/94, dated 2‑4‑1994, and the exemptions were withdrawn through subsequent notifications issued by the Government‑‑‑Petitioners claimed exemptions from the duties on the basis of the notification‑‑‑Validity‑‑‑Notification through which the exemption was granted remained operative so long the same existed and in case the exemption was withdrawn, the notification of withdrawal of exemption being prospective in its operation would not operate retrospectively and the, exemption already made through earlier notification would remain available till the time the same was not taken away‑‑‑Exemption in sales tax given through the Notification S.R.O. No.279(I)/94, dated 2‑4‑1994, would be given to the petitioners indiscriminately till the same was withdrawn through a subsequent notification‑‑‑Such exemption on the import of machinery and equipment which were imported within the target date would be available under the notification and would continue till the issuance of notification of withdrawal‑‑‑Where the notification through which the exemptions were allowed was neither issued far a specific time nor the power of the Government to withdraw the benefits given under the notification were restricted by any condition, consignment relating to the contract already entered into for the import of machinery and equipment of power generation projects, in which the Letters of Credits were established before the target date would be unconditionally entitled to avail the exemption from the payment of sales tax under S.R.O. No.279(I)/94‑‑‑Grants and withdrawal of exemptions were subject to certain conditions which must not be discriminatory and under the principle of prospective application of the notification the petitioners were entitled to get the benefit of the notification for the period during which the same held the field in its original form qua the imports made before the date of its amendment.

Collector of Customs and others v. Ravi Spinning Ltd. and others 1999 SCMR 412; Messrs M.Y. Electronic Industries Ltd. through Manager and another v. Government of Pakistan through Secretary Finance and others 1998 SCMR 1404; Molasses Trading. and Export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCMR 1905; Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652; Messrs Gadoon Textile Mills and others v. WAPDA and others 1997 S~MR 641; Government of Balochistan through Additional Chief Secretary v. Aziz‑ullah Memon and others PLD 1993 SC 34and Rafi‑ud‑Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1971 SC 252 rel.

(k) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 18 & 19‑‑‑Sales Tax Act (VII of 1990), S.13‑‑‑Customs duty and sales tax. exemption from‑‑‑Power to withdraw such exemption ‑‑‑Scope‑‑­Notification which purports to impair an existing right or imposes new liability or an obligation cannot operate retrospectively, whereas the notification which confers benefits can operate retrospectively but no one car claim exemption from payment of customs duty, sales tax or any other tax as of right without legal sanction‑‑‑Grant of exemption being discretionary°, the Authority which enjoys the ‑power to grant exemption is also empowered to withdraw such exemption subject to the condition that the exemption, if already allowed would not be withdrawn from the previous date‑‑‑Where exemption was granted subject to the existence of certain conditions andwithdrawal of the same was also made conditional, the Government while fulfilling such condition would be justified in withdrawing the exemption‑‑­No estoppel can be pleaded against the law or the legislative power of the Government for the grant of exemption or withdrawal thereof.

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

(l) Vires of statute‑

‑‑‑‑Judicial interference into the functions of legislation of representative body or Government‑‑‑Scope‑‑‑Legislature is presumed not to legislate a law manifestly causing injustice or abuses of the jurisdiction of legislation‑‑­Where such abuses of jurisdiction are manifest the Courts have the exclusive powers to examine the validity of the same.

Raja Muhammad Akram and Salman Akram Raja for Petitioners.

Farhat Nawaz Lodhi and Raja Bashir Ahmad Kiani for Respondents.

Date of hearing: 19th May, 2000.

2001 C L C 408

[Lahore]

Before Muhammad Akhtar Shabbir, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN

through Chairman and 3 others‑‑‑Appellants

versus

SAFIA BEGUM‑‑‑Respondent

Nos.23 and 24 of 1993, heard on 5th October, (a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & 55‑‑‑Limitation Act (IX of 1908), S.14‑‑‑Suit for declaration and mandatory injunction‑‑‑Limitation‑‑‑Exclusion of period spent in proceedings before Wafaqi Mohtasib‑‑‑Claim of plaintiff having been repudiated by defendant, plaintiff filed complaint with the Wafaqi Mohtasib which was rejected and plaintiff filed suit after about two years of rejection of the complaint‑‑‑Office of Wafaqi Mohtasib being not a Court, proceedings before Wafaqi Mohatasib would not be deemed to be the proceedings in the wrong Court‑‑‑Benefit of S.14 of Limitation Act, 1908, in circumstances, would not be attracted to the case of plaintiff.

Masud Ahmad and 2 others v.. United Bank Ltd. 1992 SCMR 424; Said Ahmad Khan v. Syed Altaf Hussain 1986 MLD 2283 and Muhammad Sharif Khan v. Mst. Manzooran Begum 1992 CLC 22 ref.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 19 & Art.86‑‑‑Computation of limitation period‑‑‑Where on acknowledgement of liability in respect of property or right had been made in writing by the party against whom said property or right was claimed, a fresh period of limitation would be computed from the time when the acknowledgement was so signed.

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

‑‑‑‑Ss. 42 & 55‑‑‑Limitation Act (IX of 1908), Art.86‑‑‑Suit for declaration and mandatory injunction‑‑‑Limitation‑‑‑Defendant in its evidence had nowhere stated that the suit was hit by limitation nor it was on file of the Court that as to when the claim of the plaintiff was lastly refused by defendant‑‑‑Effect‑‑‑Incumbent on the defendant to establish on record the date when the claim of the plaintiff was refused‑‑‑Onus to prove that suit was barred by limitation, was on the defendant but he had failed to discharge the onus by producing sufficient and convincing evidence‑‑‑Presumption, thus, would go against the defendant‑‑‑Suits, in circumstances, were rightly decreed by Courts below.

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

‑‑‑‑Ss. 42, & 55‑‑‑Limitation Act (IX of 1908), Art.86‑‑‑Suit for declaration and mandatory injunction‑‑‑Limitation‑‑‑Date of death of insured person (deceased husband of plaintiff) though was the starting point for running limitation under Art.86(a) of Limitation Act, 1908, but where the insurer (defendant) had acknowledged liability to the sum insured by a letter refusing to pay, limitation would start from the date of signing such letter.

Messrs State Life Insurance Corporation v. Mst. Kausar Jehan Begum 1982 CLC 1658 ref.

(e) Proof‑‑‑

‑‑‑‑Onus‑‑‑He who alleges, must prove and in case he fails to prove the issue, the presumption goes against him.

Muhammad Zaman Khan v. Sher Afzal Khan PLD 1984 Azad J&K 138 ref.

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

‑‑‑‑S. 100‑‑‑Appellate jurisdiction, exercise of‑‑‑Appellants had . failed to point out any illegality and material irregularity in judgments and decrees passed by Courts below‑‑‑Appeals against judgments and decrees were dismissed by High Court.

Athar Rehman Khan for Appellants. . Sh. Ziauddin Ahmad Qamar for Respondents.

Date of hearing: 5th October, 2000.

2001 C L C 424

[Lahore]

Before Munir A. Sheikh, J

DAEWOO CORPORATION through

Director Contract & Follow‑Up‑‑‑Petitioner

versus

PROVINCE OF THE PUNJAB through

Secretary, Local Government and Rural Development, Lahore and 2 others‑‑‑Respondents

Writ Petition No.6754 of 1994, decided on 12th January, 1995.

(a) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑Ss. 153, 156 & 157‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Adequate remedy, availability of‑‑‑Model Schedule‑‑‑Validity‑‑‑General superintendence over the affairs of Local Council was vested in Provincial Government under the provisions of S.153, Punjab Local Government Ordinance, 1979, whereas the Government had been vested with the powers under S.157 of the Ordinance to issue direction from time to time‑to the Local Council‑‑‑Sections 153 & 157 of the Ordinance had not provided any remedy, and the same could not be termed as alternate adequate remedy available to aggrieved person barring the maintainability of Constitutional petition.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Failure of petitioner to mention pendency of civil suit in the petition ‑‑‑Effect‑‑‑Mala fide on the part of petitioner‑‑‑Where the scope of the suit was different and the same was based on independent cause of action, such omission in the petition would not have adverse effect on the bona fides of the petitioner or on its merits‑‑‑High Court refused to exercise discretion to dismiss the petition in circumstances.

(c) Estoppel‑‑‑

‑‑‑‑No estoppel against law.

(d) Words and phrases‑‑‑

......Produce"‑‑‑Meaning.

Words and Phrases legally defined by Johan B. Saunders, 2nd Edn., Vo1.4, p.87; English Dictionary; Black's Law Dictionary and Chamber's Twentieth Century Dictionary ref.

(e) Punjab Zila Councils (Export Tax) Rules, 1990‑‑‑

‑‑‑‑R. 5‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Export Tax, recovery of‑‑‑Expression "produced" as appearing in 8.5(1) of Punjab Zila Councils (Export Tax) Rules, 1990‑‑‑Applicability‑‑­Petitioner was excavating stone from leased area situated within the limits of Town Committee and after the same being crushed had to pass through the territorial limits of District Council‑‑‑While leaving the limits of the District Council, Export Tax was charged from the petitioner‑‑‑Contention by the petitioner was that as no production was carried out within the limits of District Council he was not liable to pay the Export Tax ‑‑‑Validity‑‑­Production of stone was deemed to have taken place when the same was excavated from the leased hill/quarry and the leased area was situated within the limits of Town Committee and not in the territorial limits of the District Council as such the stone was not produced within the limits of the District Council‑‑‑No Export Tax, thus, could be levied on transportation of the stone to a place outside the limits of District Council, though the same passed through the limits of District Council‑‑‑Recovery of Export Tax by District Council for the excavation of stone within the territorial limits of Town Committee was without lawful authority and had no legal effect‑‑‑High Court directed the concerned Authorities to return the tax already recovered from the petitioner.

Al‑Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29; Wealth Tax Officer and another v. Shaukat Afzal and 4 others 1993 SCMR 1810; Nur Muhammad v. Deputy Commissioner/ Controlling Authority, D.G. Khan and others 1992 PLC (C.S.) 368; Superintendent to Central Excise, Lyallpur v. Ch. Faqir Muhammad PLD 1959 SC 103; Pakistan v. Muhammad Aqil PLD 1960 SC 4; Colony Sarhad Textile Mills Ltd. v. Collector, Central Excise and Land Customs and another PLD 1969. Lah. 228; Federation of Pakistan v. Messrs Noori Trading Corporation (Private) Limited and 14 others 1992 SCMR 710; Messrs Sethi Straw Board Mills Ltd. v. Pakistan through the Secretary to the Government of Pakistan, Ministry of Finance and 3 others 1994 SCMR 1872; Hilal Tanneries Ltd,. v. Zila Council, Gujrat and others 1994 MLD 2366 and Pakistan Petroleum Ltd. v. The Collector, Central Excise and Land Customs, Hyderabad and another PLD 1971 Kar. 221 ref.

(f) Punjab Zila Councils (Export Tax) Rules, 1990‑‑‑

‑‑‑‑R. 5(1)‑‑‑Expression "produced"‑‑‑Connotation‑‑‑Stone crushing‑‑­Breaking of stones through crushing to smaller pieces of stone does not conic within the meaning of "produced" as envisaged under 8.5(1) of Punjab Zila Councils (Export Tax) Rules. 1990‑‑‑Export Tax is levied on stone. Bajri, Chalk Mitti, sand, earth and brick Pacca of all kinds irrespective of its size and not on the act of crushing of the stone‑‑‑Crushing of stone does not come within the meaning of "produced" as mentioned in 8.5(1), Punjab Zila Councils (Export Tax) Rules, 1990.

Noori Trading Corporation (Pvt.) Ltd. v. Federation of Pakistan PLD 1989 Quetta 74 rel.

Federation of Pakistan v. Messrs Noori Trading Corporation (Private) Limited and 14 others 1992 SCMR 710 distinguished.

(g) Punjab Local Government Ordinance (VI of 1979)‑‑

‑‑‑‑Ss. 137, 138 & 139‑=‑Punjab Local Councils (Taxation) Rules, 1980, R.10‑‑‑Model Schedule‑‑‑Object‑‑‑Goods Exit Tax Model Schedule is issued by the Provincial Government to serve as guideline for Zila Council and the same does not absolve the Zila Councils of their responsibilities to observe all formalities prior to imposing the Export Tax though Ziia Council could recover the Export Tax at the rates mentioned in the Schedule sanctioned‑ and issued by itself.

Zila Council, Sheikhupura through its Chairman v. Messrs Mian Tyre and Rubber Co. (Pvt.) Ltd., Lahore Cantt. and others PLD 1994 SC 212 ref.

M.R. Shaikh for Petitioner.

Masood Sadiq for Respondent No.‑l.

Shahid Hamid with Ch. Saeed Shafqat, Legal Adviser, Zila Council, Jhang for Respondents Nos.2 and 3.

Dates of hearing: 2nd and 3rd November, 1994.

2001 C L C 433

[Lahore]

Before Karamat Nazir Bhandari, J

SAJID BIN NAWAZ‑‑‑Petitioner

versus

PUNJAB UNIVERSITY‑‑‑Respondent

Writ Petition No. 14993 of 2000, heard on 22nd September, 2000.

Calendar of the University of the Punjab‑‑‑

‑‑‑‑ Regln. 37‑‑‑Constitution of . Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Grace marks, grant of‑‑‑Candidate was short of 4 marks in aggregate of Part I and Part II of M.A. Examination‑‑­University officials refused to extend benefit of Regln.37 of Calendar of the University of the Punjab without any decision of Board of Examiners‑‑­Validity‑‑‑Matter of grace marks could only be decided by the Board of Examiners and not any other functionary from the University‑‑‑Refusal of grace marks by the University officials was without lawful authority and of no legal effect‑‑‑High Court directed the University to place the case of the candidate before Board of Examiners who would proceed to decide the claim in accordance with law‑‑‑Petition was allowed accordingly.

Petitioner in person. Muhammad Saleem Shaikh for Respondent.

Date of hearing: 22nd September, 2000.

2001 C L C 435

[Lahore]

Before Muhammad Zafar Yasin, J

WALAYAT SHAH and another‑‑‑Petitioners

versus

BOOTAY SHAH and 11 others‑‑‑Respondents

Writ Petitions Nos. 10979 and 11962 of 1997, decided on 27th September, 2000.

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

‑‑‑‑S. 42(7)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Entries in Record of Rights‑‑‑Consolidation Officer, jurisdiction of‑‑‑Change in long‑standing entries in Revenue Record‑‑‑Disputed mutation was entered by the Consolidation Officer without giving any opportunity of hearing to the respondents‑‑‑Such change in the Record of Rights was set aside by the Board of Revenue‑‑‑Validity‑‑‑Change in the share of the petitioners in the disputed Khata was neither declared by any Court of competent jurisdiction nor the Consolidation Officer had changed the long­standing entries in the Record of Rights after providing opportunity of hearing to the respondents‑‑‑Order passed by the Board of Revenue was neither void nor without lawful authority.

Waheed Anwar for Petitioners.

Shahzad Shaukat with Muhammad Akram Javed for Respondent No. 1.

2001 C L C 444

[Lahore]

Before Sheikh Abdur Razzaq, J

Malik MUHAMMAD ASLAM, ADVOCATE‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE‑II, BAHAWALPUR

and 2 others‑‑‑Respondents

Writ Petition No. 151 of 1990, heard on 13th November, 2000.

Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 144 & 145‑‑‑Putting question to witness‑‑‑Initiating legal proceedings against counsel‑‑‑Counsel of plaintiff while cross‑examining defendant witness, put certain questions to said witness whereby his credibility was allegedly impeached‑‑‑Said questions were put to witness by counsel on instructions of his client and not on his own nor to defame or disgrace the witness‑‑‑Such action of the counsel stood protected under Art.144 of the Qanun‑e‑Shahadat, 1984 against initiating legal proceedings against him.

M. Moosa v. Mahomed and others PLD 1954 Sindh 70; Azam Beg Mirza v. Tajammal Hussain and another 1983 PCr.LJ 1476 and Malik Ghias­ud‑Din v. Muhammad Saeed PLD 1993 Lah. 509 ref.

Malik Muhammad Aslam for Petitioner.

Nemo for Respondents.

Date of hearing: 13th November, 2000.

2001 C L C 446

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD ASHRAF and another‑‑‑Petitioners

versus

FAISAL MASOOD and 2 others‑‑‑Respondents

Civil Revision No.633/D of 1999, heard on 27th September, 2000.

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

‑‑‑‑S. 45‑‑‑Islamic Law‑‑‑Inheritance‑‑‑Mutation‑‑‑Correction of‑‑‑Suit‑land was gifted to the plaintiff on account of murder of his father as a Diyat‑‑­Revenue Authorities mutated the suit‑land in favour of the brothers of the deceased‑‑‑Plaintiff assailed the disputed mutation before Civil Court‑‑‑Suit was dismissed by the Trial Court, but the Lower Appellate Court allowed the appeal and decreed the suit‑‑‑Validity‑‑‑Defendants were not the legal heirs of the deceased and the donor had denied to have gifted the suit‑land to them‑‑‑Judgment of the Lower Appellate Court did not suffer from any illegality and the High Court refused to interfere in the same‑‑‑Plaintiff being not the only heir of the deceased, High Court modified. the judgment and decree of the Lower Appellate Court and directed the Revenue Authorities to also include the names of the other legal heirs in the mutation of suit‑land according to their respective shares.

(b) Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑‑Distribution of shares among legal heirs‑‑‑Regulations about inheritance recorded.

Holy Qur'an: IV: 7 ref.

(c) Islamic Law‑‑‑

‑‑‑‑ Inheritance‑‑‑Tarka (legacy), distribution of‑‑‑Procedure discussed.

Holy Qur'an: IV: 11 to 14 ref.

(d) Islamic Law‑‑

‑‑‑‑ Diyat, payment of‑‑‑Guidelines.

The Holy Qur'an:II: 178 and 179; XVII: 33 and XVII: 34 ref, Ehsanullah Khan Lilla for Petitioner. Sh. Naveed Shaharyar for Respondents.

Date of hearing: 27th September, 2000.

2001 C L C 455

[Lahore]

Before Mian Saqib Nisar, J.

KHUDA BUX and 8 others‑‑‑Appellants'

versus

SHAMIR and 6 others‑‑‑Respondents

Regular Second Appeal No.34 of 1986, heard on 18th October, 2000.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 15, 21 & 28‑A‑‑‑Suit for pre‑emption ‑‑‑Superior right of pre­emption‑‑‑Right of pre‑emption was claimed by plaintiffs as owners in the estate‑‑‑One of the vendees was minor at the time of filing of suit and was sued through his father as his guardian ad litem while the other vendee also claimed ownership in the estate on the basis of sale made in his favour‑‑‑Said sale was assailed by another person through pre‑emption suit which was decided in his favour and he obtained possession of the suit‑land in execution of decree passed in his favour‑‑‑Effect‑‑‑Guardian ad litem of minor pre­emptor and the other vendee admitted superior right of plaintiffs in respect of suit‑land on account of the decree passed in favour of said persons‑‑­Once a decree was passed, executed and satisfied, . subsequent application filed on the same subject was fictitious, ill‑motivated and amounted to defeat respondents' right of pre‑emption ‑‑‑Abandonment of an issue on part of next friend or guardian ad litem in course of suit does not amount to compromise and leave of the Court was not necessary ‑‑‑Vendees having lost their status of ownership of estate as claimed by them and having failed to defeat superior right of the plaintiffs in respect of the suit­land, suit was rightly decreed in favour of plaintiffs in circumstances.

Muhammad Malik v. Haji Muhammad Bashir and others 1994 CLC 2020; Mawas Khan v. Subedar Meher Dill PLD 1985 SC 215; Muhammad Mumtaz v. Muhammad Shaf 1992 SCMR 1814; 1925 Punj. Rec. 140 and 1930 ILR 128 and PLD 1968 Lah. 1218 ref.

Talib H. Rizvi and Tafazzal Rizvi for Appellants. Malik Muhammad Hussain Awan for Respondents.

Date of hearing: 18th October, 2000.

2001 C L C 462

[Lahore]

Before Syed Zahid Hussain, J

SOHANRA and 4 others‑‑‑Petitioners

versus

MEMBER (CONSOLIDATION), BOARD OF REVENUE, PUNJAB, LAHORE and 2 others‑‑‑Respondents

Writ Petition No.928 of 1986, decided on 19th. October, 2000.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Judgment "in personam"‑‑‑Scope‑‑­Order of Authority concerning the parties and the subject‑matter which gave rise to Constitutional petition decided by High Court was a judgment "in personam" whereby the parties were bound and the matter could not be later reopened nor its efficacy eroded.

Pir Bakhsh and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.

(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑Ss. 9 & 10‑‑‑Constitution. of Pakistan (1973), Art.199‑‑‑Constitutional petition‑ ‑‑Consolidation proceedings‑‑‑Judgment "in pprsonam"‑‑‑Scope‑‑­Grievance of landowners was against the Consolidation Scheme confirmed by the Board of Revenue‑‑‑In earlier round of litigation, the matter was decided finally by the High Court and the order attained finality‑‑‑Revenue Authorities finalized scheme which was confirmed by the High Court earlier but the same was disturbed by the Board of Revenue‑‑‑Petitioners filed a review petition before the Board of Revenue which was also dismissed‑‑­Validity‑‑‑Judgment rendered by the High Court in earlier petition inter se the parties was judgment "in personam" and the same was binding on the parties which had attained finality‑‑‑Efficacy of the judgment could not be eroded through subsequent order passed by the Board of Revenue‑‑‑Parties were bound by the order of the High Court and they could not be allowed to reopen and reagitate the matter over and again‑‑‑Order passed by Board of Revenue subsequently could not sustain in law and the same was illegal and of no legal effect.

Sheikh Naveed Sheharyar for Petitioner No. 1.

Farooq Qureshi Chishti for the Remaining Petitioners.

Nemo for Respondents.

2001 C L C 466

[Lahore]

Before Syed Zahid Hussain, J

Mrs. AZRA SUALEH‑‑‑Petitioner

versus

GOVERNMENT OF PUNJAB IN MINERAL DEVELOPMENT

DEPARTMENT through Secretary, Industries and Mineral Development, Civil Secretariat, Lahore and 3 others‑‑‑Respondents

Writ Petition No. 12285 of 1996, heard on 1st December, 2000.

(a) Punjab Mining Concession Rules, 1986‑‑‑

‑‑‑‑R. 15‑‑‑Priority‑‑‑Rule .of first come first served ‑‑‑Applicability‑‑­Authorities have discretion to ignore the rule under the provision of R.15 of Punjab Mining Concession Rules, 1986.

Messrs Kohinoor Aluminium v. Province of East Pakistan and others PLD 1969 Dacca 293 and Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmed Khan PLD 1975 SC 667 ref.

(b) Punjab Mining Concession Rules, 1986‑‑‑

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Priority in grant of licence‑‑‑Rule of first come first served‑‑­Applicability‑‑‑Grievance of the petitioner was that she had applied earlier but ignoring her application the licence of disputed mines was given to the respondents‑‑‑Validity‑‑‑Authorities had reason to ignore the rule of priority and preferential treatment‑‑‑Licence was granted to public sector organization fully equipped to undertake the requisite prospecting/developing work who had ambitious plan for the purpose‑‑‑Where the non‑grant of the licence to the petitioner had valid foundation, as such the same was not arbitrary or unreasonable in any way‑‑‑Petitioner could neither compel the Authorities for grant of the licence, nor any direction could be issued‑‑‑Petition was dismissed in circumstances.

Aslam Hayat for Petitioner. Fauzi Zafar, Asstt. A.‑G., Punjab for Respondents.

Date of hearing: 1 st December, 2000.

2001 C L C 468

[Lahore]

Before Raja Muhammad Sabir, J

NAZIR AHMAD‑‑‑Petitioner

versus

Mst. GHAZALA BASHIR‑‑‑Respondent

Civil Revision No.2033 of 2000, decided on 14th September, 2000.

Evidence‑‑‑

‑‑‑‑ Shifting of evidence of one case to the other‑‑‑Validity‑‑‑Evidence of one case could not be shifted verbatim to the other case for decision for such procedure was unknown to the Civil Procedure Code‑‑‑Consent of parties could not change prescribed procedure because law would not permit the change of procedure through consent.

Muhammad Younas v. The Crown PLD 1953 Lah. 321; Shabbir and 2 others v. Mst. Ghulam Fatima 1987 CLC 1407; Sheikh Abdul Hamid v. Muhammad Siddique PLD 1981 Lah. 42 and Malik Aman v. Haji Muhammad Tufail PLD 1976 Lah. 1446 ref.

Ch. Arshad Mehmood for Petitioner.

2001 C L C 471

[Lahore]

Before Syed Zahid Hussain, J

Mst. AYESHA BIBI‑‑‑Petitioner

versus

Mst. NAJAM‑UN‑NISA and 8 others‑‑‑Respondents

Writ Petition No.3145 of 1990, decided on 17th November, 2000.

(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑Ss. 9, 10, 11 & 13‑‑‑Consolidation of holdings‑‑‑Prerequisites and procedure for the preparation of scheme stated.

The Consolidation of Holdings Ordinance, 1960 provides for the prerequisites and procedure for consolidation to be followed by the Consolidation Officer who prepares the scheme, if agreed to by the landowners or to prepare a scheme by himself in view of section 9 of the Ordinance. Before approving the scheme, he has, however, to publish the same for objections by any person interested and after considering such objections the scheme is to be confirmed under section 10(3) of the Ordinance. The aggrieved parties then are left to avail remedies of appeal or revision provided by sections 11 and 13 of the Ordinance. The scheme of the law indicates the importance of consent and consensus of the landowners.

(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑Ss. 9 & 10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Consolidation of holdings‑‑‑Preparation of scheme‑‑‑Interference of Chief Minister's Secretariat‑‑‑Scheme was prepared by the Authorities under the direction of the Chief Minister's Secretariat as Member of Provincial Assembly required the same to be done‑‑‑Validity‑‑‑Statutory functionaries alone were competent to pass order in respect of consolidation schemes, under the provisions of Consolidation of Holdings Ordinance, 1960‑‑‑Minister for consolidation had not been conferred with any authority in that regard and he was not permitted to interfere either directly or indirectly in judicial/quasi‑judicial proceedings finalized by the Competent Authorities under the Consolidation of Holdings Ordinance, 1960‑‑­Consolidation proceedings initiated on the directive issued by Chief Minister's Secretariat had no lawful authority and were illegal as the same could not be regarded as fair and independent exercise of statutory powers‑‑­High Court directed the petitioners to apply for consolidation in accordance with law and the Authorities were ordered to process the proceedings in a just and fair manner uninfluenced by any extraneous interference or pressure.

Bashir Ahmad and others v. Malik Jehangir Khan, Member (Consolidation), Board of Revenue and others 1992 MLD 1566; Ahmad Khan v. Member (Consolidation), Board of Revenue, Punjab, Lahore and others PLD 1990 SC 1070 and Ghulam Rasul v. Mahmood Ahmad and 42 others 1992 SCMR 136 ref.

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

‑‑‑‑Art. 4‑‑‑Constitutional guarantees‑‑‑Violation of‑‑‑Interference of elected representatives into the field reserved for statutory functionaries ‑‑‑Effect‑‑­Such interference is violation of the Constitutional right of citizens to be treated in accordance with law.

Syed Zafar Ali for Petitioner.

Nemo for Respondents Nos. 1 to 7. Fouzi Zafar, Asstt. A.‑G. for Respondents Nos.8 and 9.

Date of hearing: 17th November, 2000.

2001 C L C 477

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD RASHID ‑‑‑Petitioner

versus

JUDGE, FAMILY COURT, CHISHTIAN, DISTRICT BAHAWALNAGAR and another‑‑‑Respondents

Writ Petition No.3022 of 2000/BWP, heard on 26th September, 2000.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dissolution of marriage on ground of Khula'‑‑‑Wife filed suit for dissolution of marriage on ground of option of puberty, but Court declined to grant dissolution of marriage on the said ground as the same was not established and instead ordered dissolution of marriage on ground of Khula'‑‑‑Validity‑‑‑Ground of Khula' was though not agitated by wife in the plaint, but Court in view of the conduct of parties concluded that parties could not live within the limits of God; that there was no use to order the continuation of hateful union of the parties and that it was in the interest of the parties that they should be separated so as to lead their independent and amicable life‑‑‑High Court declined interference in the judgment of Trial Court.

Muhammad Abbasi v. Mst. Sarnia Abbasi 1992 CLC 937; Syed Dilshad Ahmad v. Mst. Sarwat Bi PLD 1990 Kar. 239 and Bashir Ahmad v. Mst. Nasreen and another 1991 CLC 1234 ref.

Mian Muhammad Saleem Akhtar for Petitioner. M. Sultan Wattoo for Respondents.

Date of hearing: 26th September, 2000.

2001 C L C 490

[Lahore]

Before Sheikh Abdur Razzaq, J

SHAUKAT and another‑‑‑Petitioners

versus

MUHAMMAD SALEEM‑‑‑Respondent

Civil Revision No.257/D of 1999, heard on 19th June, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 8‑‑‑Recovery of possession of immovable property‑‑‑Plaintiffs filed the suit on the basis of declaratory decree passed by Civil Court‑‑‑Trial Court dismissed the suit ex parte and decided the matter in favour of the party found unsuccessful in the earlier suit‑‑‑Lower Appellate Court set aside the ex parte judgment on the ground that the Trial Court could not sit over the judgment and decree earlier passed and having already attained finality‑‑­Validity‑‑‑Earlier decree could only be set aside by a Court of competent jurisdiction‑‑‑Where the plaintiff was declared as owner of the disputed property and such decree was still in the field, Trial Court was not justified to pass the ex parte judgment dismissing the suit of the plaintiff‑‑‑Judgment of Lower Appellate Court did not suffer from any illegality or misreading of evidence in circumstances. [p. 492] A

Muhammad Fazzil Bhatti and Muhammad Idrees ,Siddiqui for Petitioners.

Malik Ghulam Shabbir for Respondent.

Date of hearing: 19th June, 2000.

2001 C L C 494

[Lahore]

Before Ch. Ijaz Ahmad, J

KOHINOOR INDUSTRIES LIMITED

(KOHINOOR TEXTILE MILLS) through

P&A Manager‑‑‑Petitioner

versus

GOVERNMENT OF PAKISTAN through

Chairman, Central Board of Revenue, Islamabad

and 2 others‑‑‑Respondents

Writ Petition No.4080 of 1986, heard on 6th October, 2000.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑New plea, raising of ‑‑‑Validity‑‑­Petitioner could not be allowed to raise plea in Constitutional petition, which was not agitated before Authorities below.

Dost Muhammad Cotton Mills' case PL,D 1976 Kar. 1078 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Concurrent findings of fact‑‑‑Where the Tribunals below had given concurrent findings of fact against the petitioner, Constitutional petition was not maintainable.

Khuda Bakhsh's case 1974 SCMR 279; Muhammad Sharif's case PLD 1981 SC 246 and Abdul Rehman Bajwa's case PLD 1981 SC 522 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Scope‑‑‑Substituting decision of Tribunal below by High Court‑‑‑High Court has no jurisdiction to substitute its own decision in place of the findings of fact of the Tribunal below.

Mussaduq's case PLD 1973 Lah. 600 rel.

(d) Central Excises Act (I of 1944)‑‑‑

‑‑‑‑S. 35‑A‑‑‑Excise Duty on Production Capacity (Cotton Yarn) Rules, 1975, R.8(2)‑‑‑Constitution of Pakistan (1973), Art.99‑‑‑Constitutional petition‑‑‑Disputed question of fact‑‑‑Penalty was imposed by the Authorities on the ground that the petitioner contravened provisions of R.8(2) of Excise Duty on Production Capacity (Cotton Yarn) Rules, 1975‑‑‑Petitioner denied the allegations made against him‑‑‑Validity‑‑‑Allegations being are disputed question of fact, High Court had no jurisdiction to resolve the same in Constitutional petition.

Muhammad Younis's case 1993 SCMR 618 rel.

Central Textile Mills v. Deputy Collector and others 1985 MLD 143 distinguished.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Alternate remedy‑‑‑Jurisdiction of High Court under Art. 199 of the Constitution‑‑‑Scope=‑‑Where the petitioner had alternate remedy for resolution of the disputed question of fact, by filing civil suit under S.9, C.P.C. before the competent Court, Constitutional. petition was not maintainable.

Muhammad Ismail's case PLD 1996 SC 246 ref.

Munir A. Bhatti for Petitioner. A. Karim Malik for Respondent.

Date of hearing: 6th October, 2000. _

2001 C L C 499

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑I)

Malik MUHAMMAD NAWAZ‑‑‑Petitioner‑

versus

Malik HAMEEDULLAH and 12 others‑‑‑Respondents

R.O.R. Nos.941, 942 and 943 of 1996, decided on 16th October, 2000.

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

‑‑‑‑S. 163‑‑‑Power of review by District Collector‑‑‑Scope‑‑‑Revenue Officers of various tiers could review their respective order or orders of their predecessors under provisions of S.163 of West Pakistan Land Revenue Act, 1967 subject to fulfillment of certain conditions either suo rnotu or on an application made by aggrieved person‑‑‑Procedure laid down in S.163 of the Act required Revenue Officer to obtain permission of his immediate next superior officer when he was satisfied that an order of his predecessor needed review‑‑‑District Collector being custodian of record‑of‑rights in the District, had been empowered under West Pakistan Land Revenue Act, 1967, Land Administration Manual, Land Record Manual and Instructions of the Board of Revenue to order for correction of entries of Revenue Record and he was duty bound to ensure that record was updated and maintained correctly‑‑‑District Collector was authorised to sanction or accord permission for review of an order passed by predecessors of a subordinate Revenue Officer‑‑‑If an application pointing out defective entries of Revenue Record was submitted to District Collector and said application. was marked to the subordinate Revenue Officer for investigation and report, District Collector could not be viewed to have transgressed his power‑‑‑When a report from subordinate Revenue Officer, competent to review any order passed by his predecessor with permission of his superior officer was received by District Collector on which he formulated view that Revenue Record was not correctly maintained and certain order of a subordinate Revenue Officer required review and he accorded permission for review of the said order, District . Collector had merely facilitated the fulfilment of conditionality imposed on said Revenue Officer under S.163(2)(ii) of West Pakistan Land Revenue Act, 1967‑‑‑Sanction to review under proviso to S.163 was not an order as defined in S.104, C.P.C. but was merely a permission accorded to a subordinate Revenue Officer to subject order of his predecessor to judicious scrutiny in presence of concerned parties‑‑‑Concerned Revenue Officer, who had been allowed to review order was not bound after hearing the parties to necessarily modify or reverse order, but previous order could be confirmed‑‑‑Long standing entries of Revenue Record which had no legal foundation and were result of fraud and forgery could be changed under order of District Collector.

1995 CLC 389; 1998 CLC 1423 and 1993 CLC 1134 ref.

Ch. Abdur Rashid Gujjar for Petitioners. Aamar Zahoor Chohan for the Border Area Committee. Respondents: Ex parte.

2001 C L C 510

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. SAKINA BIBI‑‑‑Appellant

versus

MUHAMMAD ARIF‑‑‑Respondent

Regular Second Appeal No.38 of 1984, heard on 21st March, 2000.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 19‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Specific performance of agreement to sell‑‑‑Bar contained under S.19 of Colonization of Government Lands (Punjab) Act, 1912‑‑‑Applicability‑‑‑Vendor had received major portion of the consideration amount in presence of witnesses and possession of the suit‑land was delivered to the vendee ‑‑‑Decree passed by the Trial Court in favour of the vendee was set aside by the Lower Appellate Court for the reason that the agreement was hit by the bar contained in S.19 of Colonization of Government Lands (Punjab) Act, 1912‑‑‑Validity‑‑‑Matter of registration of sale‑deed or attestation of mutation in favour of vendee was postponed because of the fact that proprietary rights had not been conferred on the vendor by the time the agreement was executed‑‑‑Bar contained in S.19 of Colonization of Government Lands (Punjab) Act, 1912 was no: applicable in circumstances‑

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

‑‑‑‑Ss. 12 & 27(b)‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Specific performance of agreement to sell against subsequent vendee ‑‑‑Trial Court decreed the suit while the Lower Appellate Court dismissed the same‑‑‑Second appeal‑‑‑Contention by the plaintiffs was that the subsequent vendee was a purchaser having notice of earlier agreement in favour of the plaintiffs‑‑‑Validity‑‑‑Plaintiffs were entitled to seek specific performance of the agreement even against the subsequent vendee except bona fide vendee without notice and with consideration‑‑‑Both the Courts below had concurrently found the subsequent vendee as not such vendee as such the earlier agreement to sell could be enforced without getting the sale‑deed cancelled‑‑‑Not the sale‑deed but the bona fides of the subsequent vendee that mattered‑‑‑Where such bona fides was lacking, the judgment and decree of the Lower Appellate Court was set aside and that of the Trial Court was restored.

Muhammad Afzal and another v. Rehmat Ali and others 1991 SCMR 1785; Said Ali Shah v. Muhammad Shafi 1989 SCMR 1594 and Haji Abdullah Khan and others v. Nisar Muhammad Khan PLD .1965 SC 690 ref.

Abdul Sattar Goraya for Appellant. ‑Nemo for Respondents.

Date of hearing: 21st March, 2000.

2001 C L C 518

[Lahore]

Before Ch. Ijaz Ahmad, J

KHALIQ DAD and 31 others‑‑‑Petitioners

versus

MEMBER (COLONIES) BOARD OD REVENUE PINJAB, LAHORE and 12 others---Respondents

Write Petition No.6147 of 1989, heard 9th October,2000.

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

‑‑‑‑S. 45‑‑‑Civil Procedure Code (V of 1908), S.11‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Res judicata, principle of‑‑‑Applicability‑‑‑Mutation on the basis of decree passed by Civil Courts‑‑­Matter was finally settled between the parties up to High Court in favour of the petitioners and the order of High Court was not assailed before Supreme Court‑‑‑Revenue Authorities did not implement the decree passed by Civil Court which had attained finality‑‑‑Validity‑‑‑Where order passed by High Court was not challenged before Supreme Court such order of High Court had attained finality and on the basis of principle of res judicata, the same was binding between the parties.

Pir Bakhsh v. Chairman, Allotment Committee and others PLD 1987 SC 145 and Ali Ahmad and another's case 1972 SCMR 322 ref.

(b) Administration of justice‑‑‑

‑‑‑‑Act of public functionary‑‑‑Nobody should be penalized by the act of public functionary.

Abdul Latif's case PLD 1994 Lah. 3 ref.

Qazi Khurshid Alain for Petitioners. Malik Noor M. Awan for Respondents.

Date of hearing: 9th October, 2000.

2001 C L C 527

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

NAZIR AHMAD and others‑‑‑Petitioners

versus

ZEBAN BIBI and others‑‑‑Respondents

Civil Revision No. 131 of 1999/BWP, decided on 22nd June, 1999, (a) Specific Relief Act (I of 1877)‑‑

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Plaintiff in her suit had claimed that she had not transferred her property in favour of defendant by way of "Tamleek" arid that mutation of Tamleek was attested without her consent‑‑‑Onus to prove that valid Tamleek existed and that mutation of said Tamleek was attested with consent of plaintiff had been shifted upon defendant, but defendant had failed 'to discharge the onus by any evidence‑‑‑Defendant having failed to discharge onus, Trial Court was not justified to dismiss the suit‑‑‑Appellate Court, therefore, had rightly set aside judgment of Trial Court‑‑­Finding of Appellate Court not suffering from any misreading or non­-reading of evidence on record, could not be interfered with by High Court.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 30‑‑‑Erroneous admission‑‑‑Any erroneous admission was not conclusive‑‑‑If admission was factually untrue maker thereof could retract.

Ch. Aamir Faheem for Petitioners. Haji Khair Muhammad Budhera for Respondents.

Date of hearing: 22nd June, 1999.

JUDGMENT

This judgment will decide Civil Revision No. 131 of 1999 which calls in question judgment and decree, dated 1f‑3‑1999 of the learned Additional District Judge, Chishtian.

1. Facts necessary for the decision of this revision are that Mst. Zeba Bibi respondent No.1 herein filed a suit for declaration to challenge Mutations Nos. 136 and 137 of 17‑1‑1989. It was claimed that respondent had not transferred her property in favour of petitioner No.2 (Mst. Niamat Bibi) by way of "Tamleek" and that Mutation No. 136 was attested without her consent. It was added that the second Mutation No. 137 by which Niamat Bibi transferred the same property to Nazir Ahmad petitioner No.1 was also invalid as no property was ever transferred to Niamat Bibi.

2. Petitioners resisted the suit, maintaining that the land was lawfully mutated in favour, of Niamat Bibi and that Niamat Bibi validly alienated it in favour of petitioner No.1 Nazir Ahmad.

3. After issues and evidence the suit was dismissed by learned Civil Judge vide judgment, dated 8‑11‑1997.

4. Feeling aggrieved Mst. Zeba Bibi filed appeal which was accepted by learned Additional District Judge vide impugned judgment, dated 16‑3‑1999.

5. In this revision petition the judgment of the Appellate Court is subject‑matter of scrutiny.

6. I‑earned counsel for the petitioners argued that respondent No.1 Mst. Zeba Bibi appeared as P. W.3 and‑ admitted that she made "Tamleek" but the word " %‑' " was inserted in her statement which was also taken note of by the Appellate Court. It was added that on accou4t of admission this suit should have been dismissed.

7. In reply it was argued that the evidence in toto was considered by the Appellate Court whereafter findings recorded were that "Tamleek" could not be proved.

8. With the assistance of learned counsel for the parties I had the opportunity to look into the evidence on record.

10, The perusal of the record indicates that the way of "Tamleek" in favour of Niamat Bibi which was given effect through Mutation No:136, dated 17‑1‑1989 and that she transferred it to Nazir Ahmad petitioner No.2 vide Mutation No.137 of even date. The question for consideration was if any "Tamleek" had taken place and whether the mutation was attested with the consent and knowledge of Zaiba Bibi. Once Zaiba Bibi appeared in the Court as P.W.3 and stated that she got knowledge of mutation two years before the onus had shifted. upon the petitioner to prove that there existed a valid "Tamleek" and that mutation was attested with the consent of Mst. Zaiba Bibi. Neither the Tehsildar who attested the mutation was produced 'f nor the Patwan who entered the mutation appeared as a witness. Muhammad Arif was the person who identified the alleged transferor but he was also not produced in the witness‑box. On being asked it was not denied by learned counsel for the petitioner that Muhammad Arif was alive but he did not appear as witness. The explanation is'that Muhammad Arif had conspired with the other party. Record reveals that the petitioner never made any such statement in the Court below that Muhammad Arif had sided with the other party. The non‑production of the material witnesses, would obviously give rise to an adverse presumption...

1. As to the plea that the word was inserted later, one need not to enter upon this controversy for the reason that the statement as a whole has to be looked into. The perusal of the statement of Mst. Zaiba Bibi as a whole does not give the impression that she was inclined to accept the genuineness of the mutation or existence of "Tamleek". Instead she supported her case throughout and maintained that she had no knowledge of the mutation of "Tamleek". In this view of the matter, it will be to far­fetched if one assumes that she admitted the existence of mutation of "Tamleek". Even otherwise, any erroneous admission is not conclusive and if the admission is factually untrue the maker thereof can retract. Be that as it may, the existence of any valid "Tamleek" in favour of Niamat Bibi was never proved. The findings recorded by the Appellate Court, therefore, do not suffer from any misreading or non‑reading of record and no error of jurisdiction is pointed out. .

2. Resultantly, there is no merit in this revision which is accordingly dismissed.

H.B.T./N‑45/L Revision dismissed.

2001 C L C 529

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs KHAN BROTHERS‑‑‑Petitioner

versus

GOVERNMENT OF PUNJAB and others‑‑‑Respondents

Writ Petition No. 1183 of 1999, decided on 24th June, 1999.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 4, 25 & 199‑‑‑Constitutional petition‑‑‑Duty of public functionaries‑‑‑Application filed by petitioner before Chairman, Regional Transport Authority in 1998 was not decided and was referred in 1999 to Mayor, Municipal Corporation for necessary action, who also did not take any action on that application due to political pressure‑‑‑Effect‑‑‑Public functionaries were duty. bound to act in accordance with law without fear, favour and nepotism as envisaged by Art.4 of Constitution of Pakistan‑‑­Petitioner who was suffering loss on account of inaction of Authority, had inherent right to have his. application decided within a reasonable time‑‑­Nobody should be penalized by act of public functionaries‑‑‑High Court directed the Authority to decide application. of the petitioner strictly in accordance with law within specified time.

Anjam Nawaz's case NLR 1990 CLJ 518; I.A. Sherwani's case 1999 SCMR 1041; Zahid Akhtar's case PLD 1995 SC 530; Ghulam Mohy­ud‑Din's case PLD 1964 SC 829 and PLD 1964 Lah. 3 ref.

Irfan Masood Sheikh for Petitioner.

Muhammad Nawaz Bhatti, A.A. ‑G. for Respondents Nos. l,, 2, 4, 5 and 6

Ali Ahmad Awan for Respondent No.3

Tariq Nasim for Respondent No.7.

2001 C L C 533

[Lahore]

Before Muhammad Nawaz Abbasi, J

IKRAM‑UL‑HAQ‑‑‑Petitioner

versus

PROVINCE OF PUNJAB through Secretary, Housing and Physical Planning

Department, Lahore and 7 others‑‑‑Respondents

Writ Petitions Nos.938, 939 and 884 of 1999, decided on 4th July, 2000.

(a) Cantonments Act (XI of 1924)‑‑‑

‑‑‑‑S. 181 & Chap. XI [Ss. 178‑A to 197]‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Restraining construction by Cantonment Board‑‑‑Security risk in sensitive areas‑‑‑Jurisdiction of Cantonment Board‑‑­Dispute was with regard to location of the plots purchased by the petitioners in open auction from Provincial Government‑‑‑Plots were adjacent to the residential houses of the most senior military officials‑‑‑Land in question was situated in cantonment area but the same was not owned by the Cantonment Board‑‑‑Cantonment Board restrained the petitioners from raising construction on the plots for the reason that the plots were a security risk to the senior military officials‑‑‑Validity‑‑‑No building in the cantonment area could be created without the permission of Cantonment Board as provided under Chap. XI of Cantonments Act, 1924‑‑‑Cantonment Board without being owner of land, in exercise of powers, under the provisions of S.181(2) of Cantonments Act, 1924, could, in sensitive cases, prohibit erection of building‑‑‑Provincial Government realized that the disputed housing scheme was a security risk and agreed for exchange of land with the land of Federal Government under the Control of Ministry of Defence‑‑­Petitioners agreed to surrender their rights in the disputed plots subject to return of their principal amount with 12‑1/2% mark‑up‑‑‑Authorities were directed by the High Court for the return of the principal amount with mark­up.

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

‑‑‑‑Arts. 23 & 24‑‑‑Protection to properties‑‑‑Every citizen has a right to acquire, hold and dispose of property in any part of Pakistan‑‑‑Government in public interest, on payment of compensation as provided under Art.24 of the Constitution, can take private property of a person.

Tauhid‑ud‑Rehman for Petitioner.

Sardar Muhammad Ghazi, Legal Advisor, Cantonment Board, Rawalpindi.

Lt.‑Col. Iqbal Hashmi, Asstt. Judge, A.‑G. for Ministry of Defence.

Raja Iftikhar Ahmad Javaid, Standing Counsel.

Raja Saeed Akram, Asstt. A.‑G.

2001 C L C 544

[Lahore]

Before Syed Zahid Hussain, J

LIAQAT ALI ‑‑‑Petitioner

versus

SENIOR MEMBER/MEMBER (REVENUE), BOARD OF

REVENUE, PUNJAB, LAHORE and another‑‑‑Respondents

Writ Petition No. 19708 of 1998, decided on 15th December, 2000.

(a) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑R. 19(2)‑‑‑Lambardar, appointment of‑‑‑Rule of primogeniture‑‑­Applicability ‑‑‑Scope‑‑‑Although R.19(2) of West Pakistan Land Revenue Rules, 1968, concedes some preference in favour of the elder son, yet the rule of primogeniture is of directory nature in its effect.

Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484; Ghulam Hussain v. Ghulam Muhammad and another 1976 SCMR 75; Nazir Ahmad v. Roshan Din and others 1987 MLD 2269; Muhammad Yousaf v. Member, Board of Revenue and 4 others 1996 SCMR 1581 and Muhammad Younus v. The Member (Judicial‑I), Board of Revenue, Punjab, Lahore and others 1994 MLD 1480 ref.

(b) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑R. 19(2)‑‑‑Lambardar, appointment of‑‑‑Criteria‑‑‑No one has a right to claim the appointment on the basis of any preference and the main criteria is the fitness‑ of the person qua the responsibilities and duties.

Muhammad Shaffi v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others 1972 SCMR 253; Abdul Wahid v. The Member, Board of Revenue and another 1971 SCMR 719; Allah Ditta v. Mian Nasir Ahmad and another PLD 1973 Lah. 359; Masood Ahmad v. Member (Revenue), . Board of Revenue and others 1982 CLC 357; Muhammad Yousaf v. Member, Board of Revenue and 4 others 1996 SCMR 1581 and Ch. Ghulam Ullah v. Board of Revenue, West Pakistan, Lahore and 4 others 1984 CLC 2973 ref.

(c) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑R. 19(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Lambardar, appointment of‑‑‑Absentee candidate‑‑‑Revenue Authorities, jurisdiction of‑‑‑Petitioner was employee of a Bank and Board of Revenue having not found the petitioner as full time available for the appointment, appointed the respondent, as Lambardar‑‑‑Validity‑‑‑Matter of appointment of Lambardar vested exclusively in the domain of the Revenue Authorities who because of their experience and training were in better position to make a suitable choice than the Courts of general jurisdiction‑‑­Choice made by the Board of Revenue did not warrant interference in Constitutional jurisdiction of High Court.

Nawab Sajjad Ali Khan v. Ch. Fazal Ilahi, Speaker Legislative Assembly and others PLD 1957 Lah. 940; Abdul Ghafoor v. The Member (Revenue), Board of Revenue and another 1982 SCMR 202 and Sharaf Din v. Qazi Abdul Jalil and another 1986 SCMR 1368 ref.

Muhammad Yousaf v. Member, Board of Revenue and 4 others 1996 SCMR 1581 fol.

Jari Ullah Khan for Petitioner.

Syed Farooq Hassan Naqvi and Muhammad Aslam Buttar for Respondent No. 2.

Date of hearing: 13th December, 2000.

2001 C L C 551

[Lahore]

Before Maulvi Anwarul Haq, J

MUSADDAQ ALI KHAN and 6 others‑‑‑Petitioners

versus

SHARIF RAHAT QURESHI and 10 others‑‑‑Respondents

Civil Revision No. 1548/1) of 1988, heard on 10th November, 2000.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 11‑‑‑Contract‑‑‑Voidability of‑‑‑Major legal heirs of the deceased transferred plot left by the deceased through agreement of sale to the transferee‑‑‑Other legal heirs of the deceased were minors at the time of said transaction and no lawfully appointed or authorised guardian was entered into the transaction of sale on behalf of minors‑‑‑Contract of sale purported to be on behalf of minors, was void as the same fell within mischief of S.11, Contract Act, 1872 and being void ab initio was incapable of ratification.

Govind Ram v. Piran Ditta and others AIR 1935 Lah. 561 and Chairman, District Screening Committee, Lahore _ and another v. Sharif Ahmad Hashmi PLD 1976 SC 258 ref.

(b) Contract Act (IX of 1872)‑‑

‑‑‑‑S. I1‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Courts below had acted without jurisdiction and without lawful authority in upholding a contract which was void ab initio‑‑­Judgments of Courts below fell within mischief of S.115, C.P.C.‑‑‑Judgment and decrees passed by Courts below were set aside.

Mian Nisar Ahmad for Petitioners.

Nemo for Respondents Nos. l to 9.

Syed Iftikhar Hussain Shah for Respondents Nos. 10 and 11.

Date of hearing: 10th November, 2000.

2001 C L C 560

[Lahore]

Before Maulvi Anwarul Haq, J

Messrs AL‑IBLAGH LIMITED, LAHORE through Hafeez‑ur‑Rehman Ahsan, Managing Director‑‑‑Petitioner

versus

THE COPYRIGHT BOARD, KARACHI and 2 others‑‑‑Respondents

Writ Petition No. 1079 of 1985, heard on 14th November, 2000.

Copyright Ordinance (XXXIV of 1962)‑‑‑

‑‑‑‑Ss. 2(d), 10 & 46‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Application for registration of copyright‑‑‑Speeches and lectures delivered by renowned scholar in public 'were tape‑recorded by petitioner with consent of the speaker and petitioner compiled books from that record and filed application for registration of copyright in respect thereof‑‑‑Authority refused to accord registration and appeal against such refusal was rejected by two of the Members of Copyright Board including Chairman who differed with other two members, holding that petitioner was not the author of the speeches and lectures‑‑‑Validity‑‑‑Speaker who delivered speeches and lectures in general public had no copyright in respect of the speeches and lectures‑‑‑Petitioner, in circumstances, would be considered as author of the work as defined in S.2(d) of Copyright Ordinance, 1962‑‑‑Orders of Authorities were set aside by High Court.

Caird v. Sime 1887 AC 326 and Walter v. Lane 1900 Cr.C 289 ref.

Irshad Ahmad Qureshi for Petitioner. Azmat Saeed for Respondents.

Dates of hearing: 13th and 14th November, 2000.

2001 C L C 564

[Lahore]

Before Syed Zahid Hussain, J

Ch. MUHAMMAD WASI and 9 others‑‑‑Petitioners

versus

MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB, LAHORE‑‑‑Respondent

Writ Petition No.740 of 1990, heard on 14th December, 2000.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 30(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Past and closed transaction‑‑‑Grow More Food Scheme‑‑­Proprietary right, grant of ‑‑‑Suo motu revisional powers of Board of Revenue‑‑‑Proprietary rights granted in favour of the petitioner were confirmed up to the Board of Revenue as far back as 1967‑‑‑Long thereafter in exercise of suo motu jurisdiction, Board of Revenue re‑opened the matter‑‑‑Application of the petitioner objecting the proceedings was dismissed by the Board of Revenue on 1‑2‑1990‑‑‑Validity‑‑‑Transaction which had matured and had come into existence as a result of judicial orders passed in the hierarchy was not open to scrutiny over again by the Board of Revenue on the same allegations already dealt with properly‑‑‑Assumption of jurisdiction, in circumstances, by the Board was illegal and without lawful authority.

Ghous Muhammad v. Member (Colonies), Board of Revenue, Punjab, Lahore 1986 MLD 997; Mst. Abeda Begum v. Government , of Pakistan and others 1985 CLC 2859; Shameer and others v. Member (Colonies), Board and others 1994 CLC 904; Anjuman‑e‑Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and others PLD 1966 SC 639 and The Majlis‑e‑Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore PLD 1975 SC 355 ref.

Shehzad Shaukat for Petitioners. Muhammad Hanif Khatana, Addl. A.‑G. for Respondent.

Date of hearing: 14th December, 2000.

2001 C L C 567

[Lahore]

Before Muhammad Akhtar Shabbir, J

MAQSOOD AHMAD‑‑‑Petitioner

versus

JUDGE, FAMILY COURT, BUREWALA

and 5 others‑‑‑Respondents

Writ Petition No.9477 of 1999, heard on 4th October, 2000.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5, Sched. Ss. 10 & 17‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for recovery of maintenance allowance‑‑­Striking off defence for . non‑filing of written statement‑‑‑Defence of defendant was struck off for non‑filing of his written statement ‑‑‑Validity‑‑‑Provisions of West Pakistan Family Courts Act, 1964 or rules framed thereunder having nowhere authorised Family Court to strike off defence of defendant on non‑filing of his written statement, order striking off defence of defendant was declared to be illegal by the High Court.

Bashir Ahmad v. Mst. Zaubida Bibi and another 1990 ALD 180 and Muhammad Ashraf v. Nasreen Begum PLD 1989 Lah. 69 ref.

Qazi Khalid Pervez for Petitioner.

Nemo for Respondents Nos.2 to 6: Ex parte.

Date of hearing: 4th October, 2000.

2001 C L C 569

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SADIQ through General Attorney‑‑‑Petitioner

versus

Khawaja KHALID SAEED, CHAIRMAN, CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD and another‑‑‑Respondents

Writ Petition No. 14504 of 2000, heard on 21st November, 2000.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Principle of approbate and reprobate‑‑‑Applicability‑‑‑Earlier Constitutional petition which was decided with consent of the counsel for parties was binding and final between parties‑‑‑Respondents, in circumstances, had no authority to wriggle out from operative part of the judgment passed in that case on principle of approbate and reprobate especially when said judgment subsequently was acted upon by both the parties.

Hussain Bakhsh's case PLD 1970 SC 1; Ghulam kasool's case PLD 1971 SC 376; Saleem Ahmad v. Khushi Muhammad 197_4 SCMR 224 and Khuda Bakhsh's case 1994 SCMR 771 ref. .

(b) Administration of justice‑‑‑

‑‑‑‑ He who seeks equity must come with clean hands.

(c) Mutation‑‑‑

‑‑‑‑ Judgment and decree of Civil Court would take precedence over the mutation.

Pir Bakhsh's case PLD 1987. SC 145 ref.

Raja Muhammad Anwar for Petitioner. Malik Muhammad Nawaz for Respondents.

Date of hearing: 21st November, 2000.

2001 C L C 579

[Lahore]

Before Malik Muhammad Qayyum, J

Mst. TABASSAM NAZIR and another‑‑‑Petitioners

versus

LIAQAT. HAYAT and 5 others‑‑‑Respondents

Civil Revision No. 1927 of 2000,~decided on 7th December, 2000.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Maintainability‑‑‑Remedy of appeal‑‑‑Availability of‑‑‑Bypassing forum prescribed by law‑‑‑Petitioners, instead of filing appeal before Lower Appellate Court filed revision petition before High Court‑‑‑Plea raised by the petitioners for filing of the revision petition was that the Lower Appellate Court had earlier rejected the plaint and the same was revived by Supreme Court‑‑‑Validity‑‑‑Revision petition, in exceptional cases, was maintainable notwithstanding that the remedy of appeal was available‑‑‑Mere fact that on an earlier occasion Supreme Court had interfered in the matter, such plea did not confer any right upon the petitioners to approach the High Court directly bypassing the provision of law‑‑‑Forum prescribed by law could not be bypassed in circumstances.

Naseem Ahmad and others v. Air Botswana (Pvt.) Ltd. and others 1993 SCMR 64 ref.

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

‑‑‑‑S. 115, O.XXXIX, Rr.1, 2 & O.XLIII, R. 1 (viii) ‑‑‑Revision‑‑‑Maintainability‑‑‑Filing of revision in High Court instead of appeal‑‑­Valuation of suit was fixed as Rs.400 in the plaint‑‑‑Application under O.XXXIX, Rr.1 & 2, C.P.C. was dismissed by the Trial Court‑‑‑Instead of filing appeal in the Lower Appellate Court, the plaintiff filed revision petition in High Court‑‑‑Validity‑‑‑Where the valuation of the subject‑matter for the purposes of jurisdiction was fixed at Rs.400 by the plaintiff, revision was to be filed before the Lower Appellate Court‑‑‑Revision was not maintainable in circumstances.

Ch. Muhammad Ashraf Wahlah for Petitioners. Jari Ullah Khan for Respondents.

2001 C L C 588

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑I)

Mst. HASHMAT BIBI and 7 others‑‑‑Petitioners

versus

PROVINCE OF THE PUNJAB through

Collector, Sheikhupura‑‑‑Respondent

R.O.R. No.2888 of 1994, decided on 3rd October, 2000.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 30‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss.163 & 164‑‑‑Allotment of land under Fifteen Years Temporary Cultivation Lease Scheme‑‑‑Resumption of land‑‑‑Proprietary rights in respect of land were granted by Assistant Commissioner/Collector to the allottee, but Deputy Commissioner/Collector on recommendation of Head Clerk Colony, ordered resumption of land by a non‑speaking order and that order was upheld by Additional ~ Commissioner‑‑‑Validity‑‑‑Order passed by Assistant Commissioner/Collector could be reviewed by Collector only after obtaining permission of the Commissioner as provided under S.163(2)(a)(ii), West Pakistan Land Revenue Act, 1967‑‑‑Collector lacked jurisdiction to require Assistant Commissioner/Collector to .review an order of his predecessor‑‑­Order of Collector upheld by Additional Commissioner was set aside by the Board of Revenue in revision.

(b) Executive instructions‑‑‑

‑‑‑‑ Provisions of executive instructions could not overrule the provision of a substantive law.

Ch. Nazar Hussain for Petitioners.

2001 C L C 591

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

INAYAT MASIH and others‑‑‑Appellants

versus

MUNSHI MASIH and others‑‑‑Respondents

First Appeal from Order No. 31 of 1987, decided on 1st November, 2000.

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

‑‑‑‑0. XLI, Rr. 17 & 19‑‑‑Appeal, dismissal in default‑‑‑Adjourned hearing;‑‑Meaning of‑‑‑Appeal was adjourned by Reader of the Court‑‑­Lower Appellate Court admitted the appeal for regular hearing and notices were issued to the respondent‑‑‑Presiding Officer was absent on the next date and notices in the name of counsel and respondents were issued by the Reader‑‑‑Appellant failed to appear on the date fixed by the Reader and the appeal was dismissed in default‑‑‑Application for restoration of appeal was filed and the same was dismissed by the lower Appellate Court ‑‑‑Validity‑‑­Date fixed by the Reader could not be termed as a date of hearing as the Presiding Officer was absent‑‑‑Order passed by the Lower Appellate Court dismissing the application for restoration of appeal was set aside and appeal was restored.

Nowsheri Khan v. Said Ahmad Shah 1983 SCMR 1092 rel.

(b) Administration of justice‑

‑‑‑‑ Cases to be heard on merits.

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

‑‑‑‑0. XLI, R.17‑‑‑Appeal dismissed in default‑‑‑Adjourned date fled by Reader of the Court in absence of the Presiding Officer‑‑‑Validity‑‑‑Date fixed by the Reader of the Court could not be called as a "date of hearing".

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

‑‑‑‑O. XLI, Rr.17 & 19‑‑‑Appeal dismissed in default‑‑‑Application for restoration‑‑‑Non‑filing of affidavits of counsel or clerk of the counsel‑‑­Effect‑‑‑Where affidavit of the appellant was available on record, it was not necessary that the affidavit of the counsel or his clerk be also required for restoration of appeal.

Bashir Ahmad Chaudhry for Appellants. Sh. Zia‑ud‑Din Ahmad Qamar for Respondents.

Date of hearing: 1st November, 2000,

2001 C L C 595

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD ZAKRIA and 3 others‑‑‑Appellants

versus

BASHIR AHMAD‑‑‑Respondent

Regular Second Appeal No.272 of 1984, decided on 12th October, 2000.

(a) Contract Act (IBC of 1872)‑‑‑

‑‑‑‑S. 196‑‑‑Ratification, principle of‑‑‑Act done by one person on behalf of another‑‑‑Provision of S.196, Contract Act, 1872‑‑‑Applicability‑-‑Prerequisites‑‑‑Act should have been performed by a person acting for the other but without the knowledge of the, other‑‑‑Before ratifying unauthorised act of agent, the principal must be proved to have the knowledge of the action he is approving so that the principal can exercise the option of ratifying or disowning‑‑‑Person ratifying the contract must know fully all the material circumstances, under which the act is so done‑‑‑Act cited to be ratified must not be a void act.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 196‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal‑‑‑Doctrine of ratification‑‑‑Specific performance of agreement to sell‑‑‑One co‑sharer entered into the agreement with the plaintiff, regarding his share as well as on behalf of the other co­-sharers‑‑‑Such agreement was executed without the consent and knowledge of the other co‑sharers‑‑‑Executant was not acting as attorney for the other co­-sharers, while executing the agreement‑‑‑Trial Court dismissed the suit to the extent of specific performance whereas the lower Appellate Court allowed the appeal and decreed the suit‑‑‑Validity‑‑‑Where the executant was not acting as attorney and the other co‑sharers were not aware of the agreement on their behalf, doctrine of ratification was inapplicable‑‑‑Lower Appellate Court failed to take into consideration the essentials of the provisions of S.196 of Contract Act, 1872, but had restricted itself to draw inferences which were not justified on the basis of evidence adduced by the plaintiff‑‑­Judgment and decree of the Lower Appellate Court were set aside and that of the Trial Court were upheld.

Abdul Majid and 2 others v. Waris Ali and another 1999 YLR 1668; Imperial Bank of Canada v. Mary Victoria Begley AIR 1936 PC 193; Halsbury's Laws of England, 2nd Edn., p.231; Health v. Chilton (1844) 12 M&W 632 and Easten Construction Co. v. National Trust Co., 1914 AC 197 ref.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 35‑‑‑Document‑‑‑Proof‑‑‑Non judicial record accepted without objection‑‑‑Validity‑‑‑Where the documents were not copies of judicial record, such documents should not be received in evidence, without the proof of signatures and handwriting of the person alleged to have signed or written the instrument,, even if, the documents were brought on record and were accepted without objection.

Muhammad Yousaf Khan v. S.M. Ayub and 2 others PLD 1973. SC 160 rel.

S.A. Mannan for Appellants. Abdul Qudus Rawal for Respondent. .

Date of hearing: 2nd October., 2000.

2001 C L C 605

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑I)

Mst. SARDARAN BEGUM and others‑‑‑Petitioners

versus

Mst. TAHIRA FATIMA ABBASI‑‑‑Respondent

R.O.R. No.3552 of 1995, decided on 27th November, 2000.

West Pakistan Land Revenue Act (XVU of 1967)‑‑‑

‑‑‑‑Ss. 45 & 164‑‑‑Correction of entries in Revenue Record‑‑‑Total area of land in question was allotted to two allottees respectively‑‑‑Total land was exhausted, but in two entries in Register R.L.II additional area was created and said additional area, which in fact did not exist, was allotted to predecessors‑in‑interest of the petitioner‑‑‑On application of successor‑in-­interest of allottee of land, Authorities corrected entries of Revenue Record‑‑‑Additional area created in Register R.L.II factually being non­existent, Authorities rightly ordered for correction of Revenue Record as fictitious entries could not be allowed to stay in the revenue documents.

PLD 1998 Lab. 473, PLD 1986 Lah. 109, 1984 SCMR 228; 1981 CLC 543; 1986 CLC 54; PLD 1982 Lah. 569; 1981 SCMR 503; 1981 SCMR 899; 1984 SCMR 332; PLI 2000 Lah. 849; 1982 CLC 2500; 1983 CLC 414; 1,991 CLC 865; 1993 MLD 76; 1987 MLD 332 and 1996 MLD 1102 ref.

Razaque A. Mirza for Petitioners. Respondent in person.

2001 C L C 608

[Lahore]

Before Iftikhar Hussain Chaudhry, J

MAHMOOD AKRAM and others‑‑‑Petitioners

versus

GOVERNMENT OF PAKISTAN and others‑‑‑Respondents

Writ Petition No. 16336 of 2000, heard on 20th November, 2000.

(a) Jurisprudence‑

‑‑‑‑ Law of land‑‑‑Object‑‑‑Law of land exists for the betterment of society and for curbing the evils in the society‑‑‑Law has to be interpreted, enforced and applied in order to obviate any illegal activity and cannot be permitted to be stretched in favour of wily or the tricky‑‑‑Government is under obligation and has right to curb any illegal economic activity‑‑‑Constitution or the precedent does not provide any protection to a business or trade which inherently is illegal, unlawful or injurious to public at large.

(b) Prize Bonds Rules, 1999‑‑‑

‑‑‑‑S. 2‑‑‑Prize bonds, sale of‑‑‑Prize Bonds can be purchased and sold at its face value by State Bank of Pakistan or authorized banks only or National Savings Centres.

(c) Public Debt Act (XVHI of 1944)‑‑‑

‑‑‑‑Ss. 4 & 5‑‑‑Prize Bonds Rules, 1999, R.2‑‑‑Prize Bonds, trading of‑‑­Prize Bonds are issued under the provisions of Public Debt Act, 1944, and are Federal Government security as such the prize bonds are as good as money and their trading is fully regularized by the State Bank of Pakistan under the Prize Bonds Rules, 1999.

(d) Prize Bonds Rules, 1999‑‑‑

‑‑‑‑R. 2‑‑‑Prize Bonds‑‑‑Fractional sale‑‑‑Neither any dealer was permitted to sell the prize bonds nor the fractional sale or purchase of prize bond was permissible.

(e) Prize Bonds Rules, 1999‑‑‑

‑‑‑‑R. 2‑‑‑Prize bonds, sale and purchase of‑‑‑Commission, charging of‑‑­Validity‑‑‑Neither commission can be charged nor any business activity was permissible under the Rules.

(f) Prize Bonds Rules, 1999‑‑

‑‑‑‑R. 2‑‑‑Penal Code (XLV of 1860), S.420‑‑‑Prevention of Gambling Act (XII of 1977), Preamble‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Government of Punjab Circular No.SO(CB&A)1‑9/99, dated 19‑4‑1999‑‑­Constitutional petition ‑‑‑Prize bonds, trading of‑‑‑Chit system‑‑‑Petitioner was involved in sale of only prize bond numbers commonly known as "Parchi (Chit) System"‑‑‑Government of Punjab issued a circular whereby the system was declared as an act of gambling‑‑‑Validity‑‑‑Such trade was illegal and unauthorized; rather, the business was intrinsically criminal‑‑­Petitioner or others doing the business could be prosecuted for commission of offences under 5.420, P.P.C. read with other enabling provisions of penal laws and/or provisions of Prevention of Gambling Act, 1977‑.‑Cirrcular issued by the Government being competent, High Court directed the public functionaries to enforce the circular.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Interim order‑‑‑Such orders do not stand in the way of public functionaries in the exercise of their statutory functions as lawful exercise of power is never injuncted.

Muhammad Tahir Chaudhry for Petitioners.

Salma Malik, A.A.‑G. for the State.

Date of hearing: 20th November, 2000.

2001CLC613

[Lahore]

Before Amir Alam Khan and Syed Zahid Hussain, JJ

PROVINCE OF PUNJAB through COLLECTOR, JHANG and 2 others‑‑‑Appellants

versus

Messrs SHER MUHAMMAD & CO. and 23 others‑7‑Respondents.

Regular First Appeal No. 642 of i1999, decided on 21st November, 2000.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 39(1)(vi)‑‑‑Appeal‑‑‑Maintainability‑‑‑Objections to set aside award rejected by Trial Court‑‑‑Effect‑‑‑Where objections have been rejected, the order falls within the scope of S.39(1)(vi) of Arbitration Act, 1940, and appeal is maintainable.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 39‑‑‑Civil Procedure Code (V of 1908), S.105‑‑‑Appeal‑‑‑Arbitrator, appointment of‑‑‑Such appointment was by interlocutory/intermediary order, and the same was the subject‑matter of appeal against final order ‑‑‑Validity‑‑­On filing of appeal against the ultimate decision of the Court below, the whole matter gets reopened and the legality and propriety of any adverse interim order can also be examined by the Court of appeal‑‑‑Order appointing the arbitrators by the Trial Court can be challenged before the Court of appeal, when filed against a final order or decree in view of S.105, C.P.C.‑‑‑Appeal was maintainable in circumstances.

Shah Jahan v. Inayat Shah and others AIR 1919 Lah. 38; Divisional Superintendent, P.W.R., Lahore v. Muhammad Naseer‑ud‑Din PLD 1972 Lah. 301; Mst. Khurshid Begum v. Ahmad Bakhsh and another PLD 1985 SC 405 and Sewa v. Mst. Santi and others 1992 SCMR 1306 rel.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 21 & 39‑‑‑Arbitration‑‑‑Appointment of arbitrator, without the consent of all the parties‑‑‑Joining of arbitration proceedings by non­-consenting party‑‑‑Effect‑‑‑During pendency of suit one of the parties applied for appointment of arbitrator, Trial Court without the consent of all the parties appointed arbitrator and made award rule of the Court ‑‑‑Although there was arbitration clause in the agreement, yet none of the parties resorted to that clause of the agreement prior to the filing of the suit ‑‑‑Validity‑‑­Arbitration in suit pending before a Court, could only be possible under S.21 of Arbitration Act, 1940, by agreement of all the parties and not at the choice or option of one party‑‑‑Despite the objection by one of the parties, Trial Court proceeded to refer the matter to arbitrators which was not permissible as the Court had no such power in view of S.21 of Arbitration Act; 1940‑‑‑Order of reference to arbitrator and award thereby was invalid and nullity‑‑‑No amount of acquiescence or participation by the objecting party in the proceedings before arbitrators, could validate what was invalid from its inception‑‑‑Judgment and decree passed by the Trial Court, on the basis of such award was set aside.

Abdul Mateen and 3 others.v. Yousuf Bilal and 4 others PLD 1985 Kar. 422; Gopal Das v. Baij Nath and others AIR 1926 All. 238; Messrs

S.M. Qasim & Co. v. Messrs Sh. Azimuddin PLD 1962 (W.P.) Lah. 95; Abdul Qayyum Khan v. Government of Punjab through Secretary; Local Government and Rural Development Department and another PLD 1995 Lah. 205; Director Housing, A.G.'s Branch, Rawalpindi v. Messrs Makhdum Consultants Engineers and Architects 1997 SCMR 988 and Messrs Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another 1992 SCMR 65 ref.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 21‑‑‑Arbitrator‑‑‑Appointment without consent of all the parties‑‑­Joining of arbitration proceedings by non‑consenting party‑‑‑Effect‑‑­Participation of non‑consenting party before arbitrators in the proceedings would not validate the reference.

Nand Kishore v. Mercantile Corporation (India) Ltd. AIR 1953 Cal.415 and Chabbalal v. Kallu Lal AIR 1946 PC 72 ref.

(e) Arbitration Act (X of 1940)‑

‑‑‑‑Ss. 21 & 30‑‑‑Award, setting aside of‑‑‑Reference to arbitrator without consent of all the parties‑‑‑Joining of non‑consenting party to the proceedings before arbitrator, subsequently‑‑‑Effect‑‑‑Where initial reference was illegal, participation in the proceedings could not cure the illegality and the award given by the arbitrator could be set aside by invoking the provisions of S.30(c) of Arbitration Act, 1940, as the same was otherwise invalid.

Ijaz Ahmad Ch., Addl. A.‑G. with Ch. ashir Ahmad,Asstt. A.‑G. for Appellants.

Ch. Arshad Mahmood for Respondents Nos. 1, 2, 9 to 13, 15 to 20 and 22 to 24.

Date of hearing: 30th October, 2000.

2001 C L C 623

[Lahore]

Before Dr. Munir Ahmad Mughal, J

NOOR MUHAMMAD ‑‑‑Petitioner

versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN

and another‑‑‑Respondents

Writ Petition No.21969 of 2000, decided on 16th November, 2000.

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

‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Bank loan, installments of‑‑‑Petitioner received Bank loan from the respondent‑Bank but failed to repay the same in due time‑‑‑Suit for recovery of the same was filed and the same was pending before the Banking Court‑‑­Petitioner was willing to repay the same and requested for the installments of the amount to be recovered‑‑‑Validity‑‑‑High Court, directed the petitioner to pay the loan in five monthly installments, failing which the amount would be recovered as arrears of land revenue.

Al‑Qur'an Surah AI‑Baqarah 2: 280 ref.

Malik Amjad Pervaiz for Petitioner.

Karamat Ali Awan for Respondents.

2001 C L C 628

[Lahore]

Before Mian Saqib Nisar, J

JAFFAR HUSSAIN and another‑‑‑Petitioners

versus

Mian MUHAMMAD HANIF‑‑‑Respondent

Civil Revisions Nos. 1369/D, 1370 of 1987, 1394 and 1395 of 1998, heard on 4th October, 2000.

(a) Islamic Law----

‑‑‑‑Waqf‑‑‑Creation of Waqf by way of will‑‑‑Validity‑‑‑Declaration, dedication and objects for which Waqf was created must be made by the dedicator himself, therefore, a Waqf could not be constituted through a will.

(b) Islamic Law‑‑‑

----Waqf‑‑‑Creation of Waqf by‑ way of will‑‑‑Object of Waqf‑‑‑Document not executed by all successors of deceased‑‑‑Trial Court declared the property of the deceased to be a Waqf property on the basis of will executed by the deceased‑‑‑Neither all the successors of the deceased were made party before the Trial Court nor the decree indicated the objects of the Waqf‑‑­Validity‑‑‑Where the objects of Waqf were not indicated with reasonable certainty, the Waqf was void for uncertainty.

Mohammedan Law, Sec. 179 by Mulla ref.

(c) Islamic Law‑‑‑

---Waqf of Mushaa (undivided property)‑‑‑Concurrent findings of facts by the Courts below‑‑‑Disputed property was undivided property owned by issueless deceased‑‑‑Plaintiff purchased major portion of the property through registered sale‑deed from some of the legal heirs of the deceased‑‑­Suit for possession was filed by the plaintiff which was decreed by the Trial Court and appeal was dismissed by the Appellate Court‑‑‑Contention of the defendants was that the suit property was Waqf property and the same could not be sold‑‑‑Validity‑‑‑Where dedication was made for mosque or burial ground and the property was not capable of division, Waqf of Mushaa (undivided property) under Islamic Law was not permissible and Wakfnama regarding such property had no legal value.

Arshad Mehmood Chaudhry for Petitioner.

Ch. Muhammad Rasheed for Respondents.

Date of hearing: 4th October, 2000.

2001 C L C 632

[Lahore]

Before Syed Zahid Hussain, J

ABDUL GHANI and 84 others‑‑‑Petitioners

versus

THE MEMBER (CONSOLIDATION), BOARD OF REVENUE, PUNJAB, LAHORE and 9 others‑‑‑Respondents

Writ Petition No.710 of 1987, heard on 1st November, 2000.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Consolidation Scheme, annulment of‑‑‑Majority of the land‑holders were not satisfied with the Consolidation Scheme‑‑‑Additional Commissioner (Consolidation) annulled the scheme and remanded the case to the Consolidation Officer‑‑‑Revision as well as review petition before the Board of Revenue were dismissed and the matter was not agitated any further‑‑­Board of Revenue in exercise of suo motu revisional jurisdiction set aside the order of the Additional Commissioner and restored the scheme ‑‑‑Validity‑‑­Board of Revenue failed to notice that two judicial orders were revised by the Board one passed in revisional jurisdiction and other passed in review jurisdiction‑‑‑Such powers were not vested with the Board of Revenue under S.13 of West Pakistan Consolidation of Holdings Ordinance, 1960, and while passing the order the Board had overstepped the jurisdictional sphere and as such the order was not sustainable in law‑‑‑Order passed by the Board of Revenue in exercise of suo motu revisional jurisdiction was illegal and of no legal effect.

Sufaid Khan and others v. M.B.R. (Consolidation) and others NLR 1982 Revenue 87 and Noor Khan v. Lal Khan and 2 others PLD 1983 Rev. 11 ref.

G.H. Khan for Petitioners, Nemo for Respondents.

Date of hearing: 1st November, 2000..

2001 C L C 636

[Board of Revenue Punjab]

Before Shahzad Hassan Pervez, Member (Judicial‑I)

MASETAY KHAN through Legal Heirs‑‑‑Appellants

versus

Mst. GHULAM FATIMA alias GULLAN and others‑‑‑Respondents

R.O.A. No.61 and R.O.R. No. 814 of 1996, decided on 17th October, 2000.

Fraud‑‑‑

‑‑‑‑ Fraud would vitiate the most solemn proceedings‑‑‑Person appearing before a Court with unclean hands could not press into service legal technicalities to support his unworthy cause.

1989 SCMR 864 ref.

Ch. Jahanzeb Wahla for Appellants (in R.O.A. No.61 of 1996). Muhammad Mohsin for Petitioners (in R.O.R. No.814 of 1996). Ch. Ismatullah for Respondents (in R.O.R. No.814 of 1996).

2001 C L C 641

[Lahore]

Before Iftikhar Ahmad Cheema, J.

GHULAM MUHAMMAD and 2 others‑‑‑Petitioners

versus

MUHAMMAD BASHIR and 23 others‑‑‑Respondents

Writ Petition No.2592 of 2000, decided on 24th November, 2000.

Specific Relief Act (I of 1877)-----

‑‑‑‑S. 9‑‑‑Civil Procedure Code (V of 1908), O.XLI, Rr.23, 24 & 25‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit against dispossession from property‑‑‑Framing of additional issue by Appellate Court‑‑‑Suit was decreed by Trial Court, but in appeal case was remanded by Appellate Court after framing additional issue‑‑‑Sufficient oral and documentary evidence was available on record on the basis of which Appellate Court could arrive at the truth regarding dispossession of plaintiffs from the suit land as alleged by them‑‑‑Appellate Court being fully competent to adjudicate controversy between the parties in the light of evidence available on the file, framing of additional issue by Appellate Court, in circumstances was wholly unwarranted‑‑‑Judgment of Appellate Court below was set aside by High Court in exercise of its Constitutional jurisdiction.

Ajmal Kamal Mirza for Petitioner.

Sardar Muhammad Aslam for Respondents Nos, l to 5.

2001 C L C 643

[Lahore]

Before Ghulam Mahmood Qureshi, J

PROVINCE OF PUNJAB, SETTLEMENT AND, REHABILITATION WING‑‑‑Petitioner

versus

MOMNA KHATOON and 14 others‑‑‑Respondents

Writ Petition No. 182/R of 1983, decided on 22nd November, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑High Court on a Constitutional petition, filed earlier, stayed the proceedings and petitioner (Provincial Government) aggrieved by such order of the High Court filed another Constitutional petition which was supported by affidavit of Deputy Settlement Commissioner‑‑‑Maintainability of petition‑‑‑If Deputy Settlement Commissioner was aggrieved by the order passed by High Court with regard to stay of proceedings, remedy provided under law was to file an application for vacation of stay order‑‑‑Even otherwise Deputy Commissioner was the Competent Authority to act on behalf of the Province and the Deputy Settlement Commissioner/Notified Officer in his capacity could not be said to be an aggrieved person in relation to judicial order regarding affairs of Provincial Government‑‑‑Constitutional petition filed without any valid authority, therefore, was not maintainable‑‑‑Deputy Settlement Commissioner could not bind and use name of the Province of Punjab and institute litigation on its behalf.

Manthar and another v. Province of Sindh through Deputy commissioner, Sangnar and 4 others 1996 MLD 1510 ref.

Muhammad Hanif Rana for Petitioner.

Ch. Amir Hussain and Shahzad Shaukat for Respondents.

2001 C L C 647

[Lahore]

Before Mian Saqib Nisar, J

HABIB‑UR‑REHMAN ‑‑‑ Appellant

versus

Mst. MAQSOODAN BEGUM and another‑‑‑Respondents

Second Appeal from Order No.201 of 2000, decided on 26th October, 2000.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Limitation Act (IX . of 1908), S.5‑‑‑Ejectment Proceedings ‑‑­Condonation of delay‑‑‑Provisions of Limitation Act, 1908‑‑‑Applicability‑‑­Provisions of S.5 of Limitation Act, 1908, were not applicable to proceedings under West Pakistan Urban Rent Restriction Ordinance, 1959.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(6)‑‑‑Ejectment proceedings‑‑‑Defence, striking off‑‑‑Time‑barred arrears of rent‑‑‑Failure to file appeal within time against order passed under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Rent Controller struck off the defence of the tenant for non‑compliance of the tentative rent order‑‑‑Appeal against the order was dismissed by the Appellate Court as being time‑barred‑‑‑Contention of the tenant was that since the order was regarding the time‑barred arrears of rent, therefore, the ,order of the Rent Controller was void and limitation did not run against the void order‑‑‑Validity‑‑‑Parties were bound to file appeals within limitation against the void orders after the same had come to their knowledge‑‑‑Where tenant was aware of the orders of the Rent Controller and no appeal was filed within time, appeal was rightly dismissed by the Appellate Court.

Muhammad Raz Khan v. Government of N.‑W.F.P. PLD 1997 SC 397 rel.

Ch. Shaukat Ali Saqib for Appellant. Muhammad Amjad Butt for Respondent No. 1.

2001C L C 649

[Lahore]

Before Nazir Ahmad Siddiqui, J

ABDUL HAMEED‑‑‑Appellant

versus

MUHAMMAD ASLAM and 2 others‑‑‑Respondents

Regular Second Appeal No. 6 of 1978, heard on 20th October, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VI, R.17‑‑‑Amendment of pleadings‑‑‑Amendment could be allowed in the pleadings at any stage and plaint could be amended only with leave of the Court, since ordinarily the Court would not suo motu direct for the amendment.

Irfan Iqbal and 2 others v. Ch. Muhammad Hanif and 4 others PLD 1985 Lah. 523; PLD 1978 Lah. 679 and 1996 MLD 1959 ref.

Sardar Muhammad Hussain Khan for Appellant.

Malik Muhammad Aslam for Respondents.

Date of hearing: 20th October, 2000.

2001 C L C 660

[Lahore]

Before Najam‑ul‑Hassan Kazmi, J

SIGALLO ASIA LIMITED and another‑‑‑Petitioners

versus

AKBAR ENTERPRISES (PVT.) LIMITED and 4 others‑‑Respondents

Civil Revision No. 1724 of 1995, heard on 22nd January, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑, ‑‑‑‑O. VII, R.11‑‑‑Rejection of plaint‑‑‑Plaint could be rejected if the suit was barred by law.

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

‑‑‑‑S. 19‑‑‑Specific performance of contract‑‑‑Breach of contract‑‑‑Award of compensation‑‑‑Party alleging breach of contract, could either ask for specific performance of the agreement or for the payment of compensation/damages, in the alternative or in addition to the relief already claimed.

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

‑‑‑‑S. 19‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17‑‑‑Suit for specific performance of contract‑‑‑Amendment of plaint‑‑‑Court was competent to grant the relief to which the party was entitled to the peculiar circumstances of the case, no matter same had not been specifically asked for‑‑‑Suit could not be dismissed on account of any defect in its form and the Court was competent to direct amendment in the plaint for giving the relief to which the party was entitled on merits.

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

‑‑‑‑O. VI, R.17‑‑‑Amendment of plaint‑‑‑Amendment to be liberally allowed where same was required to do substantial justice to decide real matter in issue.

(e) Specific Relief Act (I of 1877)‑‑

‑‑‑‑S. 19‑‑‑Civil Procedure Code (V of 1908), O. VI, R.17‑‑‑Suit for specific performance of contract‑‑‑Breach of contract‑‑‑Amendment of plaint‑‑‑Relief of specific performance or for damages on the basis of the initial allegation of breach of contract, could be claimed in the ordinary circumstances‑‑‑If the Court was not in a position to grant relief of specific performance, it would not be denuded to its powers to grant damages, provided a case of breach of contract and entitlement to recover damages was made out‑‑‑By addition of relief of damages, neither the cause of action would change nor any cause of action would be added, but only result would be the addition of a relief which the party was entitled to claim, in the alternative or in. addition to the relief of specific performance‑‑‑By granting permission to amend the plaint for including relief of damages, it could not be said that the nature of the suit had been changed.

Samar Gul v. Central Government and others PLD 1986 SC 35; Ahmad Din v. Muhammad Shafi PLD 1971 SC 762; S. Sibtain Fazli v. Star Film Distributors and Muhammad Ali Khan PLD 1964 SC 337; PLD 1978 SC 220 and Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 ref.

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

‑‑‑‑S. 19‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17 & O.VII, R.11 Suit for specific performance of contract‑‑‑Amendment of plaint‑‑­Application for rejection of plaint‑‑‑Trial Court allowed amendment in plaint, which did not in any way, either change the nature of the suit or resulted in introduction of a different cause of action‑‑‑Insertion of additional relief was necessary to do substantial justice and to determined the real matter in issue effectively and conclusively‑‑‑Objection as to the maintainability of the suit was no longer available on the grant of permission to amend the plaint‑ ‑Application for rejection of plaint was rightly rejected by Trial Court in circumstances.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑In absence of any jurisdictional error, order of Court below could not be interfered with by the High Court in exercise of its revisional jurisdiction.

Mian Muhammad Qamar‑uz‑Zaman for Petitioners. M.R. Sheikh for Respondents.

Date of hearing: 22nd January, 1999.

2001 C L C 664

[Lahore]

Before Zahid Kurban A1avi, J

Ch. ABDUR RAUF‑‑‑Plaintiff

versus

Mrs. ZUBEDA KALEEM and others‑‑‑Defendants

Civil Miscellaneous Application No.3758 of 1998 in Suit No.222 of 1977, decided on 21st October, 1999.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 41 & Second Sched.‑‑‑Application for interlocutory order‑‑‑Where both parties had admitted most of the facts but were contesting on interlocutory application when the main dispute was sub judice before the sole arbitrator then the Court had to consider whether by granting such an application or refusing to grant the same which side would suffer irreparable loss and injury.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 41 & Second Sched.‑‑‑Powers of Court under Second Sched., exercise of‑‑‑Such powers could be exercised even in a case where reference to arbitration had been made by intervention of the Court‑‑‑Effect of the provision of S.41(b), Arbitration Act, 1940 was to clothe the Court with the same powers in relation to the arbitration proceedings and to issue interim order for the preservation and safety of the subject‑matter of the dispute.

Asadullah Khan & Company Ltd. v. Karachi Shipyard and Engineering Works Ltd. 1979 CLC 625 and Island Textile Mills Limited, Karachi v. Techno-export and another 1979 CLC 307 ref.

Habibur Rehman for Plaintiff. Samiuddin Sami for Defendants.

2001 C L C 669

[Lahore]

Before Malik Muhammad Qayyum

and Ghulam Mahmood Qureshi, JJ

JALAL DIN‑‑‑Appellant

versus

Messrs NATIONAL BANK OF PAKISTAN, HEAD OFFICE I.I. CHUNDRIGAR ROAD, KARACHI through President and 4 others‑‑‑Respondents

First Appeal from Order No.223 of 1999, decided on 1st March, 2000.

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

‑‑‑‑S. 21(5)‑‑‑Civil Procedure Code (V of 1908), S.104, O.XXI, Rr.62, 69 & 103‑‑‑Execution of decree‑‑‑Objection to‑‑‑First appeal‑‑‑Suit for recovery of amount filed by Bank against borrower/judgment‑debtor having been decreed, Bank filed execution petition and Court ordered auction of property owned by judgment‑debtor‑‑‑Objection petition filed by appellant having been dismissed, appeal was filed by him against dismissal order‑‑­Documents on record had proved that property under auction was altogether different from that owned by the appellant/objector‑‑‑Banking Court in dismissing objection petition having not committed any illegality or infirmity, appeal against dismissal order had no merit and was dismissed.

Mian Khalid Habib Elahi for Appellant. Sheharyar Sheikh for Respondents.

2001 C L C 673

[Lahore]

Before Ghulam Mahmood Qureshi, J

FAQIR MUHAMMAD ‑‑‑ Petitioner

versus

CHAIRMAN, EVACUEE TRUST PROPERTY BOARD, GOVERNMENT OF PAKISTAN, LAHORE

and 3 others‑‑‑Respondents '

Writ. Petition No.252/R of 1983, heard on 19th December, 2000..

(a) Evacuee Trust Properties (Management and Disposal) Act (XIB of 1975)‑‑‑

‑‑‑‑Ss. 8 & 10(b)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Declaring evacuee property as trust property‑‑‑Issuance of Permanent Transfer Deed after target date‑‑‑Disputed property was allotted to the petitioner and Permanent Transfer Deed was issued in the name of the petitioner on 2‑7‑1970‑‑‑Chairman, Evacuee Trust Properties Board, on 9‑9‑1982, declared the property as trust property under the provisions of S.10(b) of Evacuee Trust Properties (Management and Disposal) Act, 1975, consequently the allotment of the petitioner was cancelled‑‑‑Validity‑-‑Where only Permanent Transfer Deed was issued prior to June, 1968, even after full payment of the price, the provisions of S.10(b) of Evacuee Trust Properties (Management and Disposal) Act, 1975 were not applicable‑‑‑Permanent Transfer Deed must have been issued prior to June, 1968 for application of S.10(b) of the Act‑‑‑Chairman was justified in not validating the transfer of the petitioner and the orders were just and proper‑‑‑High Court declined to interfere in the orders‑‑‑Petition was dismissed accordingly..

Mst. Maryam Bai and others v. Islamic Republic of Pakistan and others 1993 SCMR 515 ref:

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), Ss.8 & 10‑‑‑Evacuee trust property ‑‑‑Ejectment of tenant ‑‑‑EXecution proceedings‑‑‑Allotment of landlord was cancelled by Chairman, Evacuee Trust Properties Board and the execution application was dismissed by Rent Controller‑‑‑Validity‑‑‑Where the Permanent Transfer. Deed in favour of the landlord was cancelled, the Rent Controller had rightly dismissed the execution proceedings in circumstances.

M.A. Zafar for Petitioner. Ch. Fazal Hussain for Respondents.

Date of hearing: 19th December, 2000.,

2001 C L C 677

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD MUZAFFAR ALAM JAWAID‑‑‑Petitioner

versus

CHIEF ADMINISTRATOR, AUQAF, PUNJAB, LAHORE and 3 others‑‑‑Respondents

Writ Petition No. 1525 of 1990, heard on 15th December, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Auction for renting out residential unit‑‑‑Delivery of possession‑‑‑Petitioner claimed to be the highest auction bidder of the residential unit, whereas the respondent stated that the unit was taken by the petitioner on rent by suppressing material facts and misrepresentation‑‑‑Documents produced by the petitioner did not show that the unit was allotted in his favour‑‑‑Effect‑‑‑Where the premises in question was very small and the documents did not show that the same was allotted to the petitioner, High Court declined to issue any direction to the Authorities for delivery of possession to him‑‑‑Petition was dismissed in circumstances.

Kamil Hussain Naqvi for Petitioner.

Raja Dilshad A. Khan for Respondent No.3.

M.A. Zafar for Respondent No.4.

Date of hearing: 15th December, 2000.

2001 C L C 681

[Lahore]

Before Karamat Nazir Bhandari, J

NETWORK TELEVISION MARKETING LTD.‑‑‑Appellant

versus

GOVERNMENT OF PAKISTAN and another‑‑‑Respondents

Writ Petition No.26526 of 1997, decided on 5th December, 1997.

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

‑‑‑‑Art. 199(5)‑‑‑Expression "person" ‑Company managed by Federal Government and performing the functions of public purpose was "person" under the provisions of Art. 199(5) of the Constitution‑‑‑Maintenance and operation of television station was a public purpose and the company was performing that purpose, as such the company would be a "person" performing function in connection with the affairs of the Federation, within the meaning of Art. 199 of the Constitution.

Muhammad Aslam Saleemi, Advocate v. The Pakistan Television Corporation and another PLD 1977 Lah. 852 and Messrs Sandal Fibres Ltd. v. Government of Pakistan and others PLD 1992 Lah. 400 ref.

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

‑‑-‑Art. 199‑‑‑Constitutional petition‑‑‑Judicial review of acts of company connected with public purpose managed by Federal Government‑‑‑Scope‑‑‑If a limited company is connected with public purpose, as such its action can be judicially reviewed in exercise of the powers conferred by Art.199 of the Constitution.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Grant of contract‑‑‑Judicial review‑‑­Scope‑‑‑Court, in exercise of power of judicial review, can examine the grant of contracts, their validity and also enforce rights and liabilities accruing thereunder.

Messrs Zasha Limited (Public) Limited Company, Lahore v. Agricultural Development Bank of Pakistan, Islamabad and others PLD 1993 Lah. 914 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Termination/breach of contract‑=‑, Judicial review‑‑‑Scope‑‑‑Power of judicial review can be exercised in favour of aggrieved party, where termination of contract or breach of the same has taken place in violation of principles of natural justice like absence of notice or the termination is arbitrary, fanciful and unconscionable or repugnant to the conscience of Court.

Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232 and Ch. Anwar Muhammad Khan and others v. The Director of Industries and Mineral Development, Government of Pakistan, Islamabad Capital Territory, Islamabad and another PLD 1994 Lah. 70 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑ Principles of natural justice‑‑­Violation ‑‑‑Termination/breach of contract‑‑‑Judicial review‑‑‑Exercise of such power by High Court‑‑‑Petitioners had entered into contract with Television Authorities and established small television stations in various cities of the country‑‑‑Duration of contract was ten years but the Authorities terminated the same before time without any prior notice‑‑‑Termination was arbitrary and no order showing reasons for termination of the contract by the Authorities had been placed on record‑‑‑Validity‑‑‑Refusal of the Authorities to further perform the contract or terminating the same was without prior show‑cause notice under principles of natural justice oar notice within the meaning of the agreement between the parties‑‑‑Parties were though governed by contract but the adverse action had been taken by a public functionary/respondent against the. principles of natural justice as such the termination of the contract by the Authorities was without lawful authority and of no legal effect‑‑‑Constitutional petition was allowed in circumstances.

Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232 fol.

Ch. Khushi Muhammad and others v. Administrator, District Council (Deputy Commissioner), Sheikhupura 1975 SCMR 189; Mir Rasool Bux Khan Sundrani & Co. v. People's Municipality, Sukkulr and others PLD 1975 Kar. 878; Shamshad Ali Khan v. Commissioner, Lahore 1969 SCMR 122; Al‑Mahmood Industries (Pak.) Ltd. v. The Trading Corporation of Pakistan Ltd. and others 1974 SCMR 51; Pakistan Mineral Development corporation Ltd. v. Pakistan Water and Power Development Authority and others PLD 1986 Quetta 181; Messrs Abdullah & Co. v. The Province of Sindh and others 1992 MLD 293; Messrs Presson Manufacturing Ltd. and another v. Secretary, Ministry of Petroleum and Natural Resources and others 1995 MLD 15; Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector‑General of Police, Sindh Police Headquarters and others PLD 1992 Kar. 283; Messrs Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and others AIR 1979 SC 621; Ramana Dayaram Shetty v. International Airport Authority of India and others (1979) 3 SCC 489;

Harminder Singh Arora v. Union of India and others (1986) 3 SCC 247 and Messrs Zasha Limited (Public) Limited Company: Lahore v. Agricultural Development Bank of Pakistan, Islamabad and others PLD 1993 Lah. 914 ref.

Sibtain Fazli, Ch. Aitzaz Ahsan and M. Naeem Sahgal for Petitioner.

Khawaja Saeed‑uz‑Zafar, Dy. A.‑G. for Respondent No. 1. Hamid Khan and Javed S. Khawaja for Respondent No.2.

Date of hearing: 25th November, 1997.

2001 C L C 694

[Lahore]

Before Ch. Ijaz Ahmad, J

SHAUKAT ALI ‑‑‑Petitioner

versus

ZILA COUNCIL, MIANWALI through Administrator/Deputy Commissioner, Mianwali and 2 others‑‑‑Respondents

Writ Petition No.26800 of 1997, decided on 19th January, 20001.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Disputed question of fact‑‑‑High Court, jurisdiction of‑‑‑Scope‑‑‑High Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction.

Muhammad Younas Khan's case 1993 SCMR 618 ref..

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Arbitration clause in the agreement‑‑‑Effect‑‑‑Where there was arbitration clause in the agreement, Constitutional petition was not maintainable.

Raja Muhammad Ramzan's case 1994 SCMR 1484 and Project Director, Balochistan Irrigation's case 1999 SCMR 121 ref.

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

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), Preamble & S.1‑‑­Constitutional petition‑‑‑Provisions of C.P.C.‑‑‑Applicability‑‑‑Principles of C.P.C. are applicable in the Constitutional proceedings.

Hussain Bakhsh's case PLD 1970 SC 1 ref.

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

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), S.11‑‑‑Constitutional petition ‑‑‑Res judicata, principles of‑‑‑Applicability‑‑‑Second Constitutional petition on the same subject‑matter‑‑‑Validity‑‑‑Where subject‑matter of the petition was already decided in an earlier Constitutional petition, the second petition qua the same subject‑matter was not maintainable on the principle of constructive res judicata‑‑‑Provisions of S.11, C.P.C. and principles laid down in S.11 were also attracted in the Constitutional proceedings.

Saif‑ur‑Rehman and others' case PLD 1967 SC 344; Government of Pakistan's case PL.D 1969 Dacca 930; Muhammad Anwar's case PLD 1995 Kar. 214; Dr. Asghar Alam etc. case 1982 CLC 68; Muhammad Khan's case 1994 CLC 500; Managing Committee of Masjid Mahajran's case 1974 SCMR 230 and Sahera Bibi and others' case PLD 1967 Dacca 384 rel.

Municipal Committee, Multan's case PLD 1976 Lah. 726; Raja Muhammad Ramzan's case PLD 1992 Lah. 324; Dr. A.A. Aziz's case PLD 1966 SC 188; Messrs Karimi & Company's case PLD 1968 Kar. 79; Lahore Municipal Corporation's case PLD 1986 Lah. 386; Messrs METCO Ship Brakers' case 1996 MLD 144; Muhammad Adrees's case PLJ 1979 Lah. 354; Messrs Hata Construction Company's case 1995 CLC 187; Multan Chemicals Ltd.'s case 1991 MLD 910; Sher Bahadur's case 1997 CLC 718; Karachi Metropolitan Corporation's case 1997 SCMR 1228 and Muhammad Sarwar Bhatti's case 1996 CLC 1970 distinguished.

Dr. M. Mohy‑ud‑Din Qazi for Petitioner.

Arif Chaudhry for Respondents.

2001 C L C 702

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD AZAM and another‑‑‑Petitioners

versus

TARIQ TRANSPORT COMPANY LTD.

HEAD OFFICE THE MALL, LAHORE through

Managing Director and 2 others‑‑‑Respondents

Writ Petition2688 of 1987, decided on 22nd December, 2000

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 2(c), 14, 20, 31 & 33‑‑‑Civil Procedure Code (V of 1908), Ss. 12(2) & 6‑‑‑Making award rule of Court‑‑‑Objection to‑‑‑Jurisdiction of Court‑‑­Award, the value of which was Rs.30,000 was made rule of Court by Civil Judge 1st Class‑‑‑Decree of award was objected to in application filed under S.12(2), C.P.C. and Ss.20 & 33 of Arbitration Act, 1940, alleging that same was a result of fraud and misrepresentation‑‑‑Application was accepted by Civil Judge 3rd Class who had pecuniary limitation up to Rs.25,000‑‑­Validity‑‑‑Held, since the value of the subject‑matter of the reference, the award and the decree passed by Civil Judge 1st Class was beyond the pecuniary limits of Civil Judge 3rd Class, he lacked jurisdiction in the matter and could not decide the application as expression "Court" used in S.12(2), C.P.C. had to be construed as a Court having jurisdiction in the matter.

M.A. Jalil v. Group Capt. (Recd.) Salah‑ud‑Din Khan 1983 CLC 1685; Province of Punjab through Secretary to Government of Punjab Housing and Physical Planning Department, Lahore and another v. District Judge, Lahore and 3 others PLD 1984 Lah. 515; Hitachi Limited and another v. Rupali Polyester and another 1998 SCMR 1618; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 and Suba Khan v. Rehmat Din and 2 others 1980 CLC 589 ref.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 2(1), 14, 20; 31 & 33‑‑‑Making award rule of Court‑‑‑Objection to‑‑­Jurisdiction of the Court‑‑‑If the market value of the reference was the test for determining the forum of appeal or revision, the same test and principle would determine the forum for any application under Arbitration Act, 1940.

Abid Hassan Minto for Petitioners.

Mubashir Latif Ahmad for Respondent No. 1.

Dates of hearing: 21st and 22nd December, 2000.

2001 C L C 710

[Lahore]

Before Maulvi Anwarul Haq, J

Rana MUHAMMAD ANWAR through Legal Heirs‑‑‑Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY through

Director‑General‑‑‑Respondent

Civil Revision No. 10891) of 1989, heard on 6th December, 2000.

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

‑‑‑‑S. 42‑‑‑Land Acquisition Act (I of 1894), Ss.4 & 17‑‑‑Suit for declaration‑‑‑Acquisition of land‑‑-Policy of the Authority vide its resolution was that plaintiff/owner of acquired land was entitled to adjust plots against 2/3rd of his land and to be paid compensation against 1 /3rd of said land‑‑­Plaintiff had proved to be the owner of land which had been taken over by the Authority ‑on a certain promise and representation through its resolution‑‑‑Suit filed by plaintiff neither barred by time nor by laches, could not be dismissed when plaintiff had proved his claim in respect of adjustment of plots and compensation to be paid to him.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Arts. 4, 23 & 24‑‑‑Protection of property right‑‑‑Citizens were vested with a fundamental right to hold, to own and to acquire property and their property was not to be taken away otherwise than in accordance with law.

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

‑‑‑‑S. 115‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑­Revisional jurisdiction, exercise of‑‑‑Courts below had refused to exercise jurisdiction vested in them by law by passing impugned judgments and decrees and had acted with material irregularity in exercise thereof‑‑‑Both judgments and decrees of Courts below were set aside and suit was decreed with costs.

Mian Nisar Ahmad for Petitioner. Sardar Mohabbat Ali Dogar for Respondent.

Date of hearing: 6th December, 2000.

2001 C L C 725

[Lahore]

Before Mian Saqib Nisar, J

ATTA MUHAMMAD and another‑‑‑Appellants, versus

BAHADAR through Legal Heirs‑‑‑Respondent

Regular Second Appeal No. 1,96 of 1983, heard on 24th October, 2000.

(a) Qanun‑e‑Shahadat (10 of 1984 ‑‑‑

‑‑‑‑Art. 64‑‑‑Forming opinion by Court as to relationship of one person to another‑‑‑Essentials‑‑‑Evidence led by the parties to prove such relationship would be admissible only if such evidence qualified the criteria laid down in Art.64 of Qanun‑e‑Shahadat, 1984‑‑‑Witnesses testifying about relationship must lay down the foundation of existence of their knowledge about the relationship on the basis of express conduct such as being the family member or other having special means of the knowledge or relationship e.g. friends of the family which must be founded upon the existence of their conduct with the family of whom the relationship was to be proved.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑

‑‑‑‑S. 6‑‑‑Suit for pre‑emption ‑‑‑Superior right of pre‑emption‑‑‑Plaintiff claimed, superior right of pre‑emption on the basis of being collateral of the vendor, but he could not prove his relationship with vendor by oral or documentary evidence‑‑‑Witness got examined by plaintiff otherwise being interested person, could not elaborate the pedigree, but had merely stated that plaintiff's grandfather as also the grandfather of vendor were the real brothers and could not prove relationship with exactitude‑‑‑Pedigree‑table was also absolutely inadequate to prove that the plaintiff and the vendor were related‑‑‑Suit was rightly dismissed.

Rehman v. Noora through his Legal Heirs 1996 SCMR 300; Muhammad Naeem and others v. Ghulam Muhammad 1994 SCMR 559; Ahmed and others v. Allah Diwaya and others 1998 SCMR 386; Ghulam Muhammad and others v. Allah Yar and others PLD 1965 (W.P.) Lah. 482 and Shah Nawaz and others v. Nawab Khan PLD 1976 SC 767 ref.

Ch. Muhammad Anwar Bhindar for Appellant. Hasnat Ahmad Khan for Respondents.

Date of hearing: 24th October, 2000..

2001 C L C 734

[Lahore]

Before Ch. Ijaz Ahmad, J

Major (Rtd.) REHMAT ELAHI‑‑‑Petitioner

versus

GOVERNMENT OF THE PUNJAB through

Secretary, Local Government and Rural

Development Department, Civil Secretariat, Lahore and 2 others‑‑‑Respondents

Writ Petition No.7122 of 2000, decided on 24th January, 2001.

Punjab Local Councils (Taxation) Rules, 1980‑‑‑

‑‑‑‑Rr. 3 & 4‑‑‑Punjab Local Government Ordinance (VI of 1979), S.166‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑When alternate remedy available‑‑‑Maintainability‑‑‑Tax structure of Municipal Committee‑‑‑Enhancement in licence fee‑‑‑Petitioner in his Constitutional petition had taken exception to the notification issued by the Authority directing enhancement in licence fee on the basis of a Resolution passed by the respondent‑Authority‑‑‑Petitioner in his petition, had raised question of fact which could not be resolved by High Court in exercise of its Constitutional jurisdiction‑‑‑Alternative remedy by filing appeal before Deputy Commissioner, being available to the petitioner under S.166 of Punjab Local Government Ordinance, 1979, Constitutional petition was not maintainable.

Glaxo Laboratories' case 1991 CLC 354; Rauf Trading Company 1732; Muhammad Younis's case 1993 SCMR 618: Raja Muhammad Ramzan’s case 1994 SCMR 1484; Raja Muhammad Ramzan's case 1994 MLD 930; ICI Pakistan's case 1993 MLD 32; Kh. Abdul Waheed's case PLJ 1978 Lah. 253 and Muhammad Ismail's case PLD 1946 SC 246 ref.

Rana Muhammad Arif for Petitioner.

Ijaz Ahmad Chaudhery, Addl. A.‑G. for Respondents.

2001 C L C 742

[Lahore]

Before Maulvi Anwarul Haq, J

PADAHABI alias PAT SHAHI‑‑‑Petitioner

versus

LAL DIN‑‑‑Respondent

Civil Revision No. 1632/1) of 1989 and Writ Petition No.3168 of 1984, heard on 15th January, 2000.

(a) Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑

‑‑‑‑Paras. 2(13) & 25‑‑‑Punjab Pre‑emption Act (IX of 1991), S.6‑‑‑Suit for pre‑emption on ground of non‑occupancy tenancy‑‑‑Plaintiff on basis of evidence on record had proved that suit land was in his non‑occupancy tenancy ‑‑‑Vendee having failed to prove that plaintiff was mere lessee of suit land, suit was rightly decreed on the basis of superior right of pre‑emption of plaintiff on ground of his non‑occupancy tenancy.

Faqir Muhammad and others v. Muhammad Rafique and others 1986 CLC 1028 and Muhammad Ashraf v. Member, (Revenue), Board of Revenue, Punjab, Lahore and 18 others 1984 CLC 2950 distinguished.

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

‑‑‑‑S. 52‑‑‑Column of "possession" and column of "Lagan"‑‑‑Presumption. of correctness‑‑‑Presumption of correctness is not attached to the column of Lagan‑‑‑Such presumption is, however, attached to the column of possession.

Shad Muhammad v. Khan Poor PLD 1986 SC 91 ref.

Arshad Mahmood Ch. for Petitioner.

Muhammad Zafar Ch. for Respondent.

Date‑ of hearing: 15th January, 2001.

2001 C I. C 751

[Lahore]

Before Malik Muhammad Qayyum, J

Ch. SHAFAAT MAHMOOD‑‑‑Petitioner

versus

MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE and 2 others‑‑‑Respondents

Writ Petition No.3075 of 1983, heard on 15th January, 2001.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 30‑‑‑Limitation Act (IX of 1908), Art. 1.0‑‑‑Registration Act (XVI of 1908), S.47‑‑‑Right of pre‑emption, enforcement of ‑‑‑Limitation‑‑­ Registered document under the provisions of S.47 of Registration Act, 1908, operates from the time from which the same would have been commenced to operate, if no registration of a document is required or made and not from the date of its registration‑‑‑Limitation for enforcement of pre‑emption right under the provisions of Art. 10 of Limitation Act, 1908, is to be computed from the date of registration of sale‑deed and not from the execution.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 30‑‑‑Limitation Act (IX of 1908), Art.10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Right of pre‑emption, enforcement of‑‑‑Limitation‑‑‑Date from which limitation would be construed would be the date on which the document was actually registered and not from the date of its execution.

Muhammad Meher Ali v. Muhammad Karam Ali Sarkar PLD 1965 Dacca 305 and Gobardhan Bar v. Gunadhar Bar AIR 1941 Cal. 78 ref.

Shamim Abbas Bokhari for Petitioner.

Nemo for Respondents Nos. l and 2.

Ch. Zafar Iqbal for Respondent No. 3.

Date of hearing: 15th January, 2001.

2001 C L C 759

[Lahore]

Before Karamat Nazir Bhandari, J

Hafiz AHMAD SUFYAN ARSHAD‑‑‑Petitioner

versus

BOARD OF INTERMEDIATE AND SECONDARY

EDUCATION, FAISALABAD through Chairman‑‑‑Respondent

Writ Petition No. 18204 of 2000, decided on 21st December, 2000.

Calendar of ‑ the Board of Intermediate and Secondary Education, Faisalabad, 1992‑‑‑

‑‑‑‑Chap. 5, R.5(ii)‑‑‑Constitution of Pakistan (1973), . Art.199‑‑­Constitutional petition‑‑‑Using of unfair means in examination‑‑­Disqualification of candidate and cancellation of result‑‑‑Candidate passed the F.Sc. Examination, Part I, but in Part II he was found using unfair means in examination‑‑‑Candidate accepted punishment and after suffering the same applied to appear in the examination‑‑‑Application form of the candidate was accepted, he appeared and passed Part II Examination, but in the result card issued to the candidate he was declared as "full fail and will appear next time in full subjects "‑‑‑Result of Part I was never in dispute as the candidate was never disqualified in that examination and only Part 11 Examination was in dispute in which he was declared to be disqualified‑‑‑Board at no stage had notified that candidate should show cause against cancellation of the result of Part I Examination nor the Disciplinary Committee had cancelled the result of Part I Examination‑‑‑Board, in circumstances, could not cancel the result of Part I Examination because if candidate was found using unfair means in subsequent examination and was punished, his result of previous undisputed. examination could not be annulled.

Haq Nawaz v. The Province of Punjab through Secretary, Home Department, Lahore and others PLD 1976 Lah. 1013 and Board of Intermediate and Secondary Education, Lahore v. Ala‑ud‑Din and another 1972 SCMR 13 ref. .

Ch. Ali Muhammad for Petitioner.

Dr. M. Mohy‑ud‑Din Qazi for Respondent.

Date of hearing: 6th December, 2000.

2001 C L C 767

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD NAZIR and 140 others‑‑‑Petitioners

versus

COLLECTOR/DEPUTY COMMISSIONER, LAHORE

and 2 others‑‑‑Respondents

Writ Petition No.850 of 1983, heard on 13th December, 2000.

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

‑‑‑-Art. 199‑‑‑Constitutional petition‑‑‑Subsequent events‑‑‑High Court has ample power to look into subsequent events.

1990 CLC 1069 ref.

(b) Punjab Acquisition of Land (Housing) Act (VIII of 1973)‑‑‑

‑‑‑‑Ss. 4, 6 & 13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Acquisition of land‑‑‑Statutory notices, non‑issuing of‑‑‑Scheme for graveyard was formulated by the Authorities and notification of acquisition of land owned by the petitioners was published‑‑‑Validity‑‑‑No provision existed in Punjab Acquisition of Land (Housing) Act, 1973 or in Lahore Development Authority Act (XXX of 1975), regarding framing of any scheme exclusively for graveyard‑‑‑Omission to serve statutory notice in a case relating to compulsory acquisition of property rendered the proceedings as invalid‑‑‑Issuance of notification by the Authorities was in violation of settled law.

Mst. Sardar Begum v. Lahore Improvement Trust PLD 1972 Lah. 458 fol.

Syed Muhammad Khurshid Abbas Gardezi's case PLD 1983 SC 151; Abdul Ghani's case PLD 1982 Quetta 63; The Province of Punjab and 2 others v. Zahoor Elahi and 3 others PLD 1981 Lah. 696; Haji Hashmatullah and others v. Karachi Municipal Corporation and others PLD 1971 Kar. 514; Col. Bashir Hussain and others v. Land Acquisition Collector and others PLD 1970 Lah. 320; Mst. Sardar Begum v. Lahore Improvement Trust, Lahore PLD 1972 Lah. 452 arid Mst. Maryam Bibi v. The Lahore Improvement Trust 1973 Law Notes 178 ref.

M.. Saeed Ahmad for Petitioners. , Malik Akhtar H. Awan, A.A.‑G. and Mian Muzaffar Hussain for Respondents.

Date of hearing: 13th December, 2000.

2001 C L C 777

[Lahore]

Before Ghulam Mahmood Qureshi, J

PROVINCE OF PUNJAB through Collector, District Mianwali

and 4 others‑‑‑Petitioners

versus

ASHIQ HUSSAIN and another‑‑‑Respondents

Civil Revision No.220‑D of 2000, decided on 26th May, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & 54‑‑‑Suit for declaration and permanent injunction‑‑‑Trial Court decreed suit to the extent of ownership of land in dispute, but dismissed to the extent of ownership of trees grown on said land, but on filing appeal against judgment and decree of Trial Court, Appellate Court decreed suit with regard to ownership of trees also‑ ‑‑Validity‑‑‑Defendants having not disputed ownership of plaintiff with regard to land on which trees were grown ownership of trees standing on said land would automatically vest in plaintiff‑‑‑Appellate Court, in circumstances', was justified in reversing findings of Trial Court with, regard to trees standing on land of plaintiff.

Government of N.‑W.F.P. through Deputy Commissioner, Bannu and 2 others v. Muhammad Khan alias Aan 1990 CLC 1898 ref.

Muhammad Riaz Lone for Petitioners.

2001 C L C 781

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD RAFIQUE‑‑‑Petitioner

versus

KHALID MASOOD and 22 others‑‑‑Respondents

Civil Revision No.543 of 1999, heard on 15th May, 2000.

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

‑‑‑‑S. 96 read with S.107‑‑‑Appeal‑‑‑Appeal by stranger ‑‑‑Competency‑‑­Stranger was also competent to file an appeal if he was adversely affected by order, passed in suit or proceedings‑‑‑When defendant in a suit died during pendency of suit, his legal heirs would have locus standi to file appeal against judgment passed in the suit in which their deceased father was defendant.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Appellate Court had passed decree validly and remanded the case‑‑‑Petitioner having failed to point out any illegality in the judgment and decree passed by Appellate Court same could not be interfered with in revisional jurisdiction of High Court.

H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65; Inayatullah Khan v. Haji Muhammad Ayaz Khan through Legal heirs PLD 1988 Pesh. 33 and Nemat Ali and others v. Mst. Bakhtawar and others 1995 MLD 484 ref.

Hameed Azhar Malik for Petitioners. Ahmed Usman for Respondents Nos. l to 8. Mian Arshad Latif for Respondents Nos.20 to 23.

Date of hearing: 15th May, 2000.

2001 C L C 791

[Lahore]

Before Maulvi Anwarul Haq, J

HIDAYATULLAH and others‑‑‑Appellants

versus

MUHAMMAD NASEEB and others‑‑‑Respondents

Regular Second Appeal No.443 of 1980, heard on 17th May, 1999.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 21 & 25‑‑‑Suit for pre‑emption ‑‑‑Valuation of suit for purposes of jurisdiction‑‑‑Value of suit for land for purpose of jurisdiction of Court was thirty times of land revenue to which such suit land was assessed.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 21 & 25‑‑‑Suit for pre‑emption ‑‑‑Value of suit for purpose of court­-fee and jurisdiction‑‑‑Maxim "Actus curiae nominem gravabit" (an act' of Court shall cause no wrong to party) ‑‑‑Applicability‑‑‑Pre‑emptor on direction of Court amended valuation for purposes of court‑fee as well as jurisdiction of Court ‑‑‑Pre‑emptor could not be made to suffer for wrong committed by Court in light of maxim "Actus curiae neminem gravabit".

Ellahi Bukhsh v. Bilquees Begum PLD 1985 SC 393; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 and Rodger v. The Comptoir d' Escompte de Paris (1871) 3 PC 465 ref.

Ch. Hamid‑ud‑Din for Appellants. Malik Noor Muhammad Awan for Respondents.

Date of hearing: 17th May, 1999.

2001 C L C 801

[Lahore]

Before Syed Jamshed Ali, J

FATEH MUHAMMAD ‑‑‑ Appellant

versus

FAQIR ULLAH‑‑‑Respondent

Regular Second Appeals Nos. 5 and 4 of 1980, heard on 31st March, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 12 & 21(c)‑‑‑Suit for specific performance of agreement‑‑‑Suit was dismissed on grounds that payment of earnest money by plaintiff to defendant was not proved and that terms of agreement of sale could not be determined with reasonable certainty and that property subject‑matter of agreement could not be identified‑‑‑Land in dispute was described in agreement of sale quantitatively only without any detailed description‑‑­Agreement did not provide for the time for its completion and payment of sale consideration and did not recite that any consideration was passed on at the time of execution of said agreement‑‑‑Agreement which did not contain material terms within contemplation of S.21(c) of Specific Relief Act, 1877, was not capable of enforcement‑‑‑Appellate Court below on appraisal of evidence had found that payment of consideration of agreement of sale was not proved‑‑‑Suit, in circumstances, was rightly dismissed by Appellate Court below. Shajar Ali Hoti v. Esmail Sohani 1987 CLC 2307 ref.

Muhammad Farooq Khawaja for Appellant. Sh. Abdul Aziz for Respondent.

Dates of hearing: 30th and 31st March, 2000.

2001 C L C 807

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. SHEEDAN and 2 others‑‑‑Petitioners

Versus

ABDUL GHAFOOR and 6 others‑‑‑Respondents

Civil Revision No.483 of 1986, heard on 3rd May, 2000.

(a) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Validity‑‑‑Gift in favour of wife and minor children by donor was found to be invalid by Appellate Court simply on ground that possession of land was not delivered to the donees‑‑‑Donees as per entries in Register Haqdaran‑e‑Zamin were recorded to be the owners and in possession thereof through a tenant‑‑‑Effect‑‑‑Where gift was made by donee to wife or minor children, physical departure of donor from gifted land and delivery of actual possession to donees was not necessary‑‑‑Appellate Court having acted with material irregularity in exercise of its jurisdiction and its findings being based on misreading of evidence, judgment and decree passed were set aside by High Court.

Mehr Din through Legal Heirs v. Azizan and another 1994 SCMR 1110; Chief Land Commissioner and another v. Maula Dad and others 1978 SCMR 264; Mst. Talawatun Nisa and 2 others v. Officer on Special Duty, Land Commission, Karachi and another 1984 CLC 1712 and Murid Hussain and others v. Ghulam Ahmad alias Ghulam Muhammad and another PLD 1984 SC 392 ref.

(b) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Gift in favour of wife and minor children‑‑ ‑Delivery of possession ‑‑‑Requirement.

When gift was made by donor in favour of wife or minor children, physical departure of donor from the subject‑matter of gift was not necessary.

Malik Muhammad Afzal for Petitioners.

Kanwar Akhtar Ali for Respondents.

Date of hearing: 3rd May, 2000.

2001 C L C 820

[Lahore]

Before Iftikhar Ahmad Cheema, J

PETROSIN PRODUCTS PAKISTAN

(PVT.) LIMITED‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN‑through­

Secretary, Privatization Commission, Ministry of Finance, Government of Pakistan, Islamabad and 5 others‑‑‑Respondents

Writ Petition No.2254 of 2000, decided on 1st December, 2000.

(a) Public auction‑‑‑

‑‑‑‑ Auction of public property‑‑‑Considerations‑‑‑Where public property is to be disposed of, the auction should take place publicly and public interest should be of paramount consideration‑‑‑Appearance of public justice is as important as doing the justice‑‑‑Nothing should be done which gives appearance of bias, jobbery or nepotism in auction of public property.

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

‑‑‑‑Art. 25‑‑‑Equality of citizens‑‑‑Discrimination‑‑‑State entering into contract‑‑ scope‑‑‑Where the State has right to trade it has also the duty to observe equality‑‑‑Government cannot choose to exclude persons by discrimination‑‑‑In case the State acts to the prejudice of a person as such the same has to be supported by legality‑‑‑Where the State can enter into a contract with any person it chooses, every citizen has a right to claim equal treatment to enter into a contract which may be proper, necessary and essential to his lawful calling, but no person has fundamental right to insist that the Government must enter into a contract with him.

(c) Constitution of Pakistan (1073)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Privatization of State‑owned business‑‑‑Highest bid, non‑acceptance of‑‑‑Privatization Commission offered an establishment owned by the Federal Government for public auction‑‑‑Grievance of the petitioners was that they were the highest bidders and the Commission without assigning any reason rejected their bid‑‑­Validity‑‑‑Where the Commission was looking for the best price; it was the discretion and prerogative of the Commission "to decide whether the offer made by the highest bidder was fair and in the national interest‑‑‑Petitioner had no vested right to compel the Commission to accept his bid on the sole ground that he was the highest bidder‑‑‑Where the bidders participating in the bid process had made a pool among themselves and offered to purchase some public property on a ridiculously low price, it would not be legal, valid and logical that public property must be surrendered in favour of someone simply because he was the highest bidder‑‑‑Petitioner was not clothed with any right in the auctioned property, therefore, he had no locus standli to challenge the business of the Authorities in circumstances.

Meraj Din v. Noor Muhammad and others 1970 SCMR 542; Munshi Muhammad and others v. Faizan‑ul‑Haq and others 1971 SCMR 533; 1972 SCMR 63; Babu Pervaiz Qureshi v. Settlement Commissioner, Multan and Bahawalpur Divisions 1974 SCMR 337; Moeen‑ud‑Din's case PLD 1987 SC (AJ&K) 99; Messrs Javed (Pvt.) Ltd. v. Govqrnment of Pakistan 1991 CLC 313; Muhammad Ali v. The District Council, Gujrat and others 1993 MLD 1500; AIR 1947 Mad. 366; AIR 1988 Dehli 224; AIR 1972 Madh. Pra. 131; AIR 1971 SC 2295; AIR 1954 SC 592; AIR 1972 SC 2142; AIR 1982 SC 1234; AIR 1995 SC (sic) and AIR 1980 SC 1992 ref.

AIR 1990 SC 1031; AIR 1988 SC 157; AIR 1979. SC 1628; 1995 MLD 15; Pacific Multinational (Pvt.) Ltd. v. Inspector‑General of Police PLD 1992 Kar. 283; Abdullah & Company v. Province of Sindh 1992 MLD 292; 1998 CLC 1890 and 1994 SCMR 1758 distinguished.

(d) Words and phrases‑‑‑

...... Natural justice" ‑‑‑Defined.

I Natural justice by Paul Jackson, 2nd Edn., p. l ref.

(e) Words and phrases‑‑‑

...... Natural justice" and "natural law "‑‑‑Distinguished.

(f) Natural justice, principles of‑‑‑

‑‑‑‑Principle of natural justice described in the form of Latin tags; these twin principles are audi alteram partern (nobody should be condemned unheard) and nemo judex in resua (nobody should be a Judge in his own cause)‑‑­Rules of natural justice can operate only in the areas not covered by any law validly made, as such the rule can supplement the law but cannot supplant the same‑‑‑Where a statutory provision either specifically or by inevitable implication excludes the application of the rules of natural justice, then the Court cannot ignore the mandate of the Legislature‑‑‑Whether or not the application of the principles of natural justice in a given case has been excluded, wholly or in part, in the exercise of statutory powers, depends upon the language and basic scheme of the provisions conferring the powers, the nature of the power, the purpose for which it is conferred and the effect of the exercise of that power.

(g) Maxim‑‑‑

-----Audi alteram partem"‑‑‑Applicability‑‑‑Maxim has many facts, two of them are notice of the case to be met; and opportunity to explain‑‑‑Rule of audi alteram partem ‑is universally respected and the same cannot be sacrificed at the altar of administrative convenience or celerity, for convenience and justice.

General Council of Medical Education v. Spakman (1943) AC 627 ref.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑Scope‑‑‑Writ of mandamus‑‑‑Scope‑‑‑Writ of mandamus can only be issued in respect of a legal right‑‑‑In the absence of such right petition is not competent.

Abdul Hafeez Pirzada for Petitioner.

Raja Muhammad Akram for Respondents.

2001 C L C 838

[Lahore]

Before Mumtaz Ali Mirza, J

MANAGING COMMITTEE, REVENUE EMPLOYEES, COOPERATIVE HOUSING SOCIETY, RAWALPINDI

through Secretary‑‑‑Petitioner

versus

SECRETARY, COOPERATIVE SOCIETIES, GOVERNMENT OF PUNJAB, LAHORE

and 3 others‑‑‑Respondents

Writ Petition No.2489 of 2000, decided on 24th October, 2000.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 129(g)‑‑‑Factual foundation had to be laid on the basis of record/evidence for urging a plea before a Court or Tribunal‑‑‑If a person was in possession of a piece of evidence in support of his case, but he did not produce the same before a Court or Tribunal seized of that person's case, the presumption would be that the evidence not produced was withheld by the said person for the reason that if produced that could have gone against his version of the case.

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

‑‑‑‑O. XLI, Rr.5 & 9‑‑‑Cooperative Societies Act (VII of 1925), S.64‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Interim relief, grant of‑‑‑Petitioner filed appeal before Appellate Authority under the Cooperative Societies Act, 1925 alongwith petition for grant of interim relief‑‑‑Authority admitted the appeal for regular hearing, but declined to grant interim relief‑‑‑Order declining interim relief had been challenged by petitioner in Constitutional petition contending that in the event of appeal being admitted to regular hearing, the grant of interim relief was sine qua non‑‑‑Validity‑‑‑Admission of a suit or appeal for regular hearing was one thing and the grant of interim relief pending the decision of the suit/appeal was another thing and legal justifications for the two were different‑‑­Admission of the suit/appeal for regular hearing would only mean that a party filing the same had a prima facie case in its favour‑‑‑Court, for admission of the suit/appeal had to tentatively assess the merits of party's case and had to be satisfied that it had a prima facie case for the admission of the suit or appeal.

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

‑‑‑‑O. XXXIX, Rr.l & 2‑‑‑Interim relief, grant of‑‑‑Ingredients‑‑‑Person seeking interim relief against his adversary had not only to show that he had a prima facie case in his favour, but he had also to establish other two ingredients before the Court, which were balance of convenience and irreparable loss‑‑‑Such three considerations were‑ must for the grant of interim relief, but balance of convenience and irreparable loss had no relevance to the admission of the suit/appeal for regular hearing‑‑‑Merits had not to be gone into, but only consideration to form the basis of an order granting interim relief, was the three ingredients‑‑‑Presence of one or the two of said three ingredients was not sufficient for the grant of interim relief, but in order to entitle a party to the grant of interim relief, all the three ingredients must be present and co‑exist‑‑‑Party could not be held to be entitled to the grant of interim relief as a matter of right in the event of even one ingredient being missing.

(d) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑S. 8‑‑‑Appointment of Administrator by Registrar of Cooperative Society‑--‑Order of Registrar whereby Administrator was appointed being perfectly legal in the facts and circumstances of the case, deserved to be maintained.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Factual assertions, which needed recording of evidence, could not be determined by High Court in exercise of its Constitutional jurisdiction.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Cooperative Societies Act (VII of 1925), S.64‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Refusal of interim relief challenged in Constitutional, petition‑‑‑Appeal was filed before Appellate Authority under the Cooperative Societies Act, 1925 alongwith petition for interim relief‑‑­Authority admitted the appeal for regular hearing, but denied the grant of interim relief‑‑‑Pending appeal before the Authority, petitioner challenged the order of denial by the Authority in Constitutional petition‑‑‑Appeal filed before the Authority having not been disposed of, Constitutional petition against interlocutory order of the Authority was not maintainable.

Mst. Amera Saeed v. Syed .Hassan Hamid and others 1985 CLC 792; Mst. Hafeez Barohi v. Guardian/Family Judge 1987 CLC 1630 and Syed Sajad Hussain v. Sye4 Izhar Hussain and others 1983 Law Notes (Lahore) 630 ref.

(g) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑Ss. 64 & 64‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Non‑availing of alternate remedies‑‑‑Effect‑‑‑Grievance arising out of the exercise of powers by Departmental Authorities under Cooperative Societies Act, 1925, must be brought under challenge before Appellate/Revisional Authorities provided under the said Act‑‑‑Recourse could not be had for seeking relief against the impugned action to the High Court in its Constitutional jurisdiction‑‑­Alternate remedies of appeal and revision being available to the petitioner for redressal of his grievance, Constitutional petition was not maintainable.

Election Commission of Pakistan v. Javed Hashmi and others PLD 1989 SC 396 ref.

Raja Imran Aziz and Munawwar‑us‑Salam for Petitioner.

2001 C L C 863

[Lahore]

Before Ch. Ijaz Ahmad, J

LAHORE DEVELOPMENT AUTHORITY

through Director‑General‑‑‑Petitioner

versus

Ch. SHAKIL AHMED NASER and 2 others‑‑‑Respondents

Writ Petitions Nos. 10646 and 10647 of 1997, heard on 17th January, 2000.t.

(a) Interpretation of statutes‑‑‑

‑‑‑‑ Repeal of an enactment‑‑‑Consequence laid in S.6, General Clauses Act, 1897 would follow in the case of repeal of an enactment‑unless the enactment itself indicated different intention‑‑‑When the repeal was followed by fresh legislation on the same subject, it was necessary not only to look into the provision of repealed. Legislation, but also the provisions of repealing enactment.

Syed Muhammad Khurshid Abbas Girdezi's case PLD 1983 SC 151. ref.

(b) Punjab Acquisition of Land (Housing) (Repeal) Act (XII of 1985)‑‑‑

‑‑‑‑S. 3‑‑‑Acquisition of land‑‑‑Supplementary award‑‑‑Collector had earlier announced award for the acquired land with remarks that supplementary award qua the building and trees etc. could be decided later on and subsequently announced award for the tubewell of landowners‑‑‑Second award being in continuation of the first award, contention that Collector had no authority to announce supplementary award, had no force in circumstances.

Muhammad Zafar Rai's case PLD 1991 Lah 337 and Mst Mehboob Fatima's case PLD 1963 SC 333 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Constitutional petition was not maintainable against the concurrent findings of fact given by Tribunals below‑‑‑High Court had no jurisdiction to substitute its own finding in place of the finding of the Tribunal below.

Muhammad Hanif and another's case 1974 SCMR 279; Muhammad Sharif and another's case PLD 1981 SC 246 and Abdul Rehman Bajwa's case PLD 1981 SC 522; Mussadaq's case PLD 1973 Lah. 600 and Nawab Ronaq Ali's case PLD 1973 SC 236 ref.

M. Rashid Ahmad for Petitioner.

Ch. Shoukat Ali Saqib for Respondents.

Date of hearing: 17th January, 2001.

2001 C L C 871

[Lahore]

Before, Nasim Sikandar, J

Messrs GULF INDUSTRIES‑‑‑Appellant

versus

Messrs HEBEI (CMEC) MACHINERY AND EQUIPMENT

INCORPORATED, CHINA‑‑‑‑Respondent

First Appeal from Order No. 232 of 2000, heard on 1st March, 2000.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 34‑‑‑Suit for damages‑‑‑Stay of suit-‑‑Application for stay of suit must succeed if three conditions stated in S.34, Arbitration Act, 1940 were shown to be present namely the existence of an agreement to arbitrate; absence of any sufficient cause to the contrary as to why the matter should not be referred in accordance with the arbitration agreement and that the applicant was ready and willing to do all things necessary for the proper conduct of the arbitration‑‑‑Where said conditions were shown to exist, application for arbitration could not be refused simply because various other parts of the agreement negotiated at different times did not contain any arbitration clause.

Akbar Cotton Mills Ltd. v. Messrs Ves. Ojuanojo Objedenenije Tech/Amesh Export and another 1984 CLC 1605; Messrs Hohnson and Philips (Pakistan) Ltd. through Chief Executive v. Sahibzada Muhammad Ayaz and another 1997 CLC 1177; Sheikh Azizullah v. Haji Qismat Khan and another PLD 1996 SC 831; Messrs Rupali Polyester Ltd. v. Dr. Nael G. Bunni and others PLD 1994 Lah. 525; Diamond Food Industries Ltd. v. Messrs Wemer & Peleiderer Gmbh, Federal Republic of Germany 1992 MLD 926; Messrs Uzim Export and Import Enterprises for Foreign Trade v. Messrs M. Iftikhar & Company Ltd. 1993 SCMR 866; Hashmi Can Company v. Hysong Corporation of Karachi PLD 1999 Kar. 25 and Hitachi Linuted and another v. Rupali Polyester and others 1998 SCMR 1618 ref.

Noor Muhammad Khan Chandia for Appellant.

Aftab Ahmad Khan, M.R. Sheikh and Azhar Maqbool Shah for Respondent.

Date of hearing 1st March, 2001

2001 C L C 899

[Lahore]

Before Syed Najam‑ul‑Hassan Kazmi, J

COTECNA INSPECTION SA and another‑‑‑Petitioners

versus

Messrs ISMAIL & CO. and 6 others‑‑‑Respondents

Civil Revision No. 1025 and First Appeal from Order No. 186 of 1997, heard on 3rd December, 1998.

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

‑‑‑‑O. VII, R.11‑‑‑Rejection of plaint‑‑‑Requirement‑‑‑Facts as given in the contents of plaint were to be looked into and nothing extraneous could be seen‑--Facts alleged in the plaint were to be admitted as correct curd if the same would not make out a cause of action, the plaint could be rejected‑‑­Where plaint disclosed cause of action, it was a different matter that the plaintiff was not able to prove the averments made in the plaint, but that itself would not be a ground for rejecting the plaint under O.VII, R.11, C.P.C.

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

‑‑‑‑O. XIV, Rr.l & 2‑‑‑Deciding suit on decision of legal issues‑‑‑Objection to jurisdiction‑‑‑If a suit or part thereof could be decided on the decision of legal issues, then the trial of legal issues would be segregated from the trial of issues on merits‑‑‑Objection of jurisdiction would be treated as preliminary issue as the same would go to the very root of the case.

M.R. Sheikh for Petitioner. Sayed Asghar Haider for Respondents.

Date of hearing: 3rd December, 1998.

2001 C L C 902

[Lahore]

Before Maulvi Anwarul Haq, J

WAQAR HUSSAIN BUTT‑‑‑Petitioner

versus

DISTRICT RETURNING OFFICER, GUJRANWALA

and 2 others‑‑‑Respondents

Writ Petition No.4318 of 2001, decided on 16th March, 2001.

Punjab Local Government Elections‑Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14‑‑‑Disqualification of candidate and rejection of nomination papers‑‑‑Nomination papers filed by candidate were rejected by Returning Officer on the ground that Matric Certificate relied upon by him was bogus‑‑‑Returning Officer had made sufficient enquiry with reference to the record of the relevant Board of Education and also the school record of the candidate and found the certificate bogus on the basis of said record‑‑­Nomination papers of candidate, had rightly been rejected by Returning Officer on basis of the allegation against him.

C.A. Rehman for Petitioner.

Muhammad Jehangir Wahla, A.A.‑G. (on Court's call).

2001 C L C 903

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD IQBAL KHAN and 2 others‑‑‑Petitioners

versus

Malik ZAWAR HUSSAIN, MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and another‑‑‑Respondents

Writ Petition No.4114 of 1988 and Civil Miscellaneous Nos. 1572, 1573 and 1574 of 2000, decided on 14th December, 2000.

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

‑‑‑‑O. XII, R. 3 [as amended by Law Reforms Ordinance (XII of 1972)]‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Failure to implead legal representatives of parties‑‑‑Petitioner died during the pendency of the petition and his legal representatives were not impleaded within limitation‑‑‑Effect‑‑‑Petition having been filed after the amended R.3 of O.XXII, C.P.C. it was not necessary to implead legal representatives of the parties and Constitutional petition could be proceeded with and decided as if the petitioners had not died‑‑‑Application to implead the legal representatives of deceased petitioner was allowed in circumstances.

Saif‑ud‑Din's case 1995 CLC 1348; Sardar Noor Hussain's case PLD 1983 SC 62; Sh. Inayat Ali's case 1976 SCMR 12; Sultan Ahmed's case 1989 ALD 272; Muhammad Riaz's case 1994 MLD 2270; Ismail and others' case NLR 1980 Unreported Cases 287; Khuda Yar's case PLD 1975 SC 68; Said Muhammad's case PLD 1989 SC 532; Alam Din's case 1999 MLD 2146; Messrs Adam Gee Constructions Company's case 1999 MLD 2202; Allah Ditta's case 1992 SCMR 1974; Allah Wasaya's case 1992 SCMR 2184; PLD 1975 SC 68; PLD 1963 SC 382 and Allah Dad v. Hakim Dad PLD 1960 Lah. 900 ref.

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

‑‑‑‑S. 164‑‑‑Land Reforms Regulation, 1972 (M.L.R.115), Para. 25(7)‑‑­Speaking order ‑‑‑Revisional jurisdiction of Board of Revenue‑‑‑Failure to give reasons in order passed by Board of Revenue‑‑‑Appeal of the petitioner was accepted by Appellate Authority but Board of Revenue reversed the decision in exercise of its revisional jurisdiction‑‑‑Board of Revenue while passing the order neither adverted to oral evidence nor addressed himself to the Revenue Record‑‑‑Revision was accepted with observations consisting of few lines based on surmises and conjectures‑‑‑Validity‑‑‑Board of Revenue had to look into the record, but the judgment did not indicate so‑‑‑Effect‑‑­Party bringing his cause to Court for adjudication was entitled to know the reasons as to how his cause was‑held with‑‑‑Brief and sketchy judgment did not make the requirements of law and also failed to satisfy the searching mind of litigants‑‑‑Order passed by Board of Revenue was result of misreading and non‑reading of record and the same was set aside‑‑‑Case was remanded to the Board of Revenue for decision afresh.

Shah Muhammad and others' case 1994 SCMR 579 and Muhammad Zaman and 10 others' case 1993 SCMR 197 ref.

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

‑‑‑‑S. 24‑.A‑‑‑Grievance of citizen‑‑‑Redressing of‑‑‑It is duty and obligation of public functionaries to redress the grievances of citizens with reasons after applying independent mind.

Messrs Airport Supports Co.'s case 1998 SCMR 2268 ref.

Ch. Qadir Bakhsh for Applicant (in Civil Miscellaneous No. 1572 of 2000 and Writ Petition No.4114 of 1988).

M. Saleem Chaudhry for Applicant (in Civil Miscellaneous No. 1573 of 2000 and Writ Petition No.4114 of 1988).

Date of hearing: 14th December, 2000.

2001 CLC917

[Lahore]

Before Maulvi Anwarul Haq, J

Rana FAISAL RAUF‑‑‑Petitioner

versus

DISTRICT RETURNING OFFICER, GUJRANWALA‑‑‑Respondent

Writ Petition No.3923 of 2001, decided on 14th March, 2001

Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14‑‑‑Rejection of nomination papers‑‑‑Nomination papers of the candidate were rejected on the ground that he failed to clear the loan taken by him from the Bank despite he was given a chance to clear the same‑‑­Candidate had undertaken that in order to show his good faith, he was prepared to pay certain amount which could be adjusted against principal amount and also against the mark‑up and that said entire exercise would be subject to the decision of a Court of competent jurisdiction in proceedings either filed by him or by the Bank concerned‑‑‑In view of said undertaking of candidate and also for the reason that prima facie adjudication regarding the determination of the entire liability of the candidate was yet to be made, order rejecting nomination papers of candidate was set aside subject to payment of agreed amount to the Bank.

Kh. Muhammad Azhar Khan v. Returning Officer 1999 AC 464 ref.

Dr. A: Basit for Petitioner.

Siraj‑ul‑Islam for Respondent.

Muhammad Jehangir Wahla, A.A.‑G. (on Court's call).

2001 C L C 924

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM MUSTAFA and another‑‑‑Petitioners

versus

RETURNING OFFICER, UNION COUNCIL

N0.71‑78/ASSISTANT COMMISIONER, DASKA

and 3 others‑‑‑Respondents

Writ Petition No.3946 of 2001, heard on 15th March, 2001.

(a) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14(d)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑ Constitutional petition‑‑‑ Objection against acceptance of nomination papers‑‑‑Order accepting nomination papers of candidate had been challenged on the ground that candidate was practising as an Advocate while he had not passed his LL.B. Examination and had forged result card of examination showing him to have passed the same‑‑‑Result card of examination of LL.B. was proved to be bogus‑‑‑Candidate, on the basis of said forged and bogus result card had obtained licence from the Bar Council to practise and also got himself enrolled in the Bar Association‑‑‑Fraud and misrepresentation committed by candidate had reflected upon his character and said acts of candidate were violative of Islamic Injunctions‑‑‑Candidate, who lacked the qualifications as mentioned in S. 14(d) of Punjab Local Government Elections Ordinance, 2000 was not a person qualified under the law to contest the elections‑‑­Order accepting nomination papers of the candidate, was set aside by High Court in exercise of its Constitutional jurisdiction.

Raja Muhammad Afzal v. Ch. Altaf Hussain 1986 SCMR 1736 ref.

(b) Words and phrases‑‑‑

‑‑‑‑"Character"‑‑‑Meaning.

Muhammad Aslam Hayat for Petitioner.

Muhammad Jehangir Wahla, A.A.‑G. (on Court's call).

Abid Saqi for Respondent No.3.

Muhammad Iqbal Mohal for Respondent No.4.

Secretary, Punjab Bar Council with Record.

Date of hearing: 15th March, 2001.

2001 C L C 932

[Lahore]

Before Maulvi Anwarul Haq, J

RAZIA SULTANA and another‑‑‑Petitioners

versus

RETURNING OFFICER, SIALKOT and 3 others‑‑‑Respondents

Writ Petition No.4083 of 2001, heard on 19th March, 2001.

Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑Ss. 2(10) & 14‑‑‑Punjab Local Government Elections Rules, 2000, Rr.44 & 47‑‑‑Election for seats reserved for peasants (female) workers‑‑‑Candidate filed nomination papers for contesting elections of the said seat‑‑‑Only a landless worker or a person owning less than five acres of land and dependant entirely upon the same for his substance, was a peasant qualified under S.2(10) of Punjab Local Government Elections .Ordinance, 2000 to contest election to a seat reserved for peasants‑‑‑Owner of less than five acres of land must be dependent directly upon the land for his subsistence, which condition precedent was missing in case of the candidate‑‑‑Candidate not falling within definition of "peasant", thus, could not contest election‑‑­Order accepting nomination papers of such candidate was set aside being illegal.

Ahmad Bakhsh v. The District Judge/Election Tribunal and others PLD 1986 SC 223; Anwar Ali Cheema v. Muhammad Aslam PLD 1984 Jour. 96 and M. Saifullah Khan v. Muhammad Afzal and 2 others PLD 1982 Lah. 7? ref.

Miss Gulzar Butt and Mian M. Ayub for Petitioners. Amir Khan Raja for Respondent. Muhammad Jehangir Wahla, A.A.‑G. (on Court's call).

Date of hearing: 19th March, 2001.

2001 C L C 935

[Lahore]

Before Muhammad Asif Jan, J

MUNICIPAL COMMITTEE, MURREE through

Administrator‑‑‑Appellant

versus

HOMI JAMSHED KAIKOBAD‑‑‑Respondent

Civil Revision No.359‑D of 2000, heard on 25th October, 2000.

(a) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑S. 77(4)‑‑‑Sanction of site plan‑‑‑Authority under S.77(4) of Punjab Local Government Ordinance, 1979 was required to pass the order on the application filed for the sanction of site plan within sixty days from filing of the same‑‑‑Where Authority even long after expiry of statutory period of sixty days had failed to decide application, proposed site plan would be deemed to have been sanctioned by the Authority.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Scope‑‑‑Petition under S.115, C.P.C. was competent only if Courts below had exercised jurisdiction not vested in them by law or failed to exercise jurisdiction so vested or had committed illegality or material irregularity in exercise of jurisdiction.

Sar Anjam v. Abdul Raziq 1999 SCMR 2167; Abdul Rehman Wahla v. Dr. Sher Dil Batra PLD 1986 SC 234; Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88; Gulzar Khan v. Mst. Razia Begum and 2 others 1982 SCMR 843; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 and Administrator, City of Lahore v. Abdul Majeed AIR 1945 Lah. 81 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Scope‑‑‑Interference by way of revision under S.115, C.P.C. was neither permitted nor warranted when neither was an infirmity nor material irregularity in the judgment of the Courts subordinate to the High Court‑‑‑Re‑appraisal of evidence was not to be undertaken in revisional jurisdiction particularly when there was a concurrent finding of facts.

Sar Anjam v. Abdul Raziq 1999 SCMR 2167; Abdul Rehman Wahla v. Dr. Sher Dil Batra PLD 1986 SC 234; Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88; Gulzar Khan v. Mst. Razia Begum and 2 others 1982 SCMR 843; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 and Administrator, City of Lahore v. Abdul Majeed AIR 1945 Lah. 81 ref.

Muhammad Ittifaq Abbasi for Petitioner. Syed Afaal Haider for Respondent.

Dates of hearing: 24th and 25th October, 2000

2001 C L C 961

[Lahore]

Before Raja Muhammad Sabir, J

Mst. SHABNAM RASHID ‑‑‑Petitioner

versus

DISTRICT COLLECTOR and others‑‑‑Respondents

Writ Petition No.21604 of 1999, decided on 19th January, 2001.

Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Maintenance‑‑‑Arbitration Council, jurisdiction of‑‑‑Fixing of maintenance when the wedlock did not exist‑‑‑Application under S.9 of Muslim Family Laws Ordinance, 1961, was filed by the wife after the divorce had already been effected‑‑‑Chairman, Arbitration Council allowed the application and granted a sum of Rs.3,500 per month‑‑‑Order of the Chairman was assailed in revision before the Collector/Deputy Commissioner who allowed the revision and set aside the order passed by the Chairman‑‑‑Validity‑‑‑Where the relationship of husband and wife subsisted, the provisions of S.9 of Muslim Family Laws Ordinance, 1961 were applicable‑‑‑Divorce had already taken place between the parties, therefore, application for grant of maintenance was not competent before the Chairman, Arbitration Council‑‑‑Order passed by the Collector/Deputy Commissioner was based on proper assumption of law and facts, warranting no interference.

Mst. Naziran v. Collector, Sialkot 1990 SCMR 803 ref.

Kh. Muhammad Farooq Mehta for Petitioner.

Pir Kaleem Khurshid for Respondent No.3.

2001 C L C 967

[Lahore]

Before Mumtaz Ali Mirza, J.

Messrs MACDONALD LAYTON & COMPANY LIMITED‑‑‑Appellant

versus

SAFDAR ALI SHAH & COMPANY‑‑‑Respondent

First Appeal from Order No.53 of 2000, decided on 6th December, 2000.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14, 17, 30 & 39‑‑‑Award, setting aside of‑‑‑Award was sought to be set aside on the ground that as per agreement between the parties, the venue for the arbitration in the event of the dispute was agreed 'to be "Karachi". the proceedings of arbitration held by the arbitrator at Islamabad were wholly without jurisdiction and without lawful authority‑‑‑Validity‑‑‑Karachi, though vas agreed to be the venue of arbitration proceedings, but the arbitrator was appointed at Islamabad, the arbitration proceedings were completed at Islamabad and award was also made there and objector joined arbitration proceedings at Islamabad without any reservation and objection‑‑­Objector had himself suggested names of three persons and had also requested in writing to adjourn arbitration proceedings for two months‑‑­Throughout the proceedings of arbitration and till after making of the award by the arbitrator, objector did not raise any objection as to the venue of the arbitration proceedings‑‑‑Objector,, in circumstances, could not be permitted to turn around and find fault with the arbitration proceedings and the resultant award on account of the venue being different from the one agreed to in the agreement between parties.

(b) Administration of justice‑‑‑

‑‑‑ When the Legislature had made the provision for something to be done in a certain manner and within time prescribed by it, that thing must be done in that manner and. within the time prescribed‑‑‑Holding to the contrary and permitting a party to act according to its own convenience rather than in that manner as enjoined by law and within the prescribed time limit, would render the statutory provision wholly meaningless‑‑‑Efforts to be made to strictly construe the provisions providing for something to be done within a prescribed time limit‑‑‑No party should be given any latitude to act casually and against the provisions of the statute.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14, 17 & 30‑‑‑Objection to award‑‑‑Objections filed out of time, could not be taken notice of and could be ruled out of consideration by the Court.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Provision prescribing time limit to do something‑‑‑Construction‑‑‑Efforts to be made to strictly construe the provisions providing for something to be done within a prescribed time limit.

M. Kowkab Iqbal for Appellant.

Syed Qalb‑e‑Hassan for Respondent.

Date of hearing: 20th October, 2000.

2001 C L C 975

[Lahore]

Before. Ch. Ijaz Ahmad, J

JAMEELA PEER BAKHSH and 11 others‑‑‑Petitioners

versus

APPELLATE AUTHORITY UNDER RENT

RESTRICTION ORDINANCE, 1959/ADDITIONAL DISTRICT

JUDGE, LAHORE and 3 others‑‑‑Respondents

Writ Petitions Nos.981, 983 of 1990 and 2589, 2588 and 2586 of 1984 and Civil Miscellaneous Application No.l/C of 2001, heard on 9th February, 2001.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 2(c)(i) & 13(2)(vi)‑‑--Ejectment of tenant on ground of re‑construction of premises‑‑‑Question of title in respect of premises ‑‑‑Ejectment petition filed by landlords on grounds of re‑construction of premises was dismissed on the ground that title/ownership of landlords qua the premises was doubtful and they, were directed to approach the Civil Court for determination of question of title of the premises‑‑‑Landlords during pendency of ejectment proceedings had obtained their .status as landlords‑‑­Orders, passed against landlords, in circumstances, were nullity in the eyes of law and were liable to be set aside‑‑‑Transfer of title effected during the pendency of proceedings, could not be disregarded, but deserved to be noticed.

Muhammad Mushtaq's case 1996 SCMR 1384; Dr. Capt. Ajaz Hussain's case 1989 SCMR 1696; Mansab Ali's case PLD 1971 SC 124; Rashid Ahmed 's case PLD 1972 SC 271 and Chittaranjan, Cotton Mills Ltd.'s case PLD 1971 SC 197 ref.

(b) Jurisdiction‑‑‑

‑‑‑‑ Question relating purely to the jurisdiction of the Court could be raised at any stage of the proceedings.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(2)(vi)‑‑‑Ejectment of tenant on ground of re‑construction of premises‑ ‑‑Application for ejectment on the ground of re‑construction made out of bona fide requirement, was purely a question of law.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑--

‑‑‑‑Ss. 13(2)(vi) & 13(5‑B)‑‑‑Ejectment of' tenant on ground of re­construction of premises‑‑‑Protection of tenant‑‑‑Landlord was required to take into, consideration the rights conferred on the tenant under S.13(5‑B) of West Pakistan Urban Rent Restriction Ordinance, 1959, so that the new construction was capable to accommodate the tenant and subject to said restriction the landlord was free in , the matter of nature and type of construction for the purposes of the new building.

Ghulam Haider's case 1979 SCMR 396 ref.

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 2(c)(i) & 13‑‑‑Denial of title of landlord in the rented premises‑-­Effect‑‑‑Simpliciter denial of the title of the landlord by the tenant in the demised premises, could not, by itself and independently be a ground sufficient for passing ejectment order.

Makhan Bano's case PLD 1984 SC 17 and Nasir Jamal's case 1990 CLC 1069 ref.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑High Court had no jurisdiction to substitute its own findings in place of the findings of the Tribunal below.

Mussadaq's case PLD 1973 Lah. 600 ref.

(g) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 14‑‑‑Principle of res judicata‑‑‑Applicability‑‑‑Principle of res judicata read with S.14 of West Pakistan Urban Rent Restriction Ordinance, 1959 was not attracted in the rent proceedings on account of subsequent events.

Muhammad Rafique and others' case 1984 CLC 2135; Syed Azhar Imam Rizvi's case 1985 SCMR 24; Messrs Maqbool Co. Ltd.'s case 1985 CLC 2635 and Sh. Muhammad Hariif's case 1991 CLC 99 ref.

(h) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13(2)(vi) & 13(5‑B)‑‑‑Ejectment of tenant on ground of re­construction of premises‑‑‑Protection of tenant‑‑‑Provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 had given certain rights to the tenant in case of re‑construction as was envisaged by S.13(5‑B) of‑ said Ordinance coupled with the facts that building period had already expired.

Dr. A. Basit for Petitioners.

Kh. Saeed‑uz‑Zafar, Ali Aasim Syed, Nasim Ahmad Khan and Malik Sher Bahadar for Respondents.

Date of hearing: 9th February, 2001.

2001 C L C 987

[Lahore]

Before Malik Muhammad Qayyum

and Raja Muhammad Sabir, JJ

KARIM BAKHSH‑‑‑Petitioner

versus

SENIOR MEMBER, FEDERAL LAND COMMISSION, RAWALPINDI and 9 others‑‑‑Respondents

Writ Petition No. 1259 of 1986, heard on 31st January, 2001

Punjab Land Revenue Act (XVII of 1887)‑‑‑

‑‑‑‑S. 16‑‑‑Land Reforms Regulation, 1972. (M.L.R.115), para.4‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Revenue Record, correction of‑‑‑Entries in Khasra . Girdawari‑‑‑Federal Land Commission dismissed the revision of the petitioner whereby correction of Khasra Girdawari was sought in exercise of powers under Land Reforms Regulation‑‑‑Validity‑‑‑Such entries could not be corrected in exercise of such powers but could only be corrected under S.16 of the Punjab Land Revenue Act, 1887.

Zafar Iqbal Khan for Petitioner.

Nemo for Respondents Nos. l to 4.

Badar‑ul‑Amir on behalf of Malik Muhammad Nawaz for Respondents Nos.5 to 10.

Date of hearing: 31st January, 2001.

2001 C L C 1001

[Lahore]

Before Sheikh Abdur Razzaq, J

KHAIR MUHAMMAD and 4 others‑‑‑Petitioners

versus

NAWAB BIBI and 7 others‑‑‑Respondents

Civil Revision No.86‑D of 1977/BWP, heard on 16th November, 2,000

Registration Act (XVI of 1908)‑‑‑-----

‑‑‑‑Ss. 49 & 50‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Specific performance of agreement to sell‑‑‑Unregistered agreement ‑‑‑Effect‑‑­Agreement relied upon by the plaintiffs pertained to immovable property of value of more than Rs.100 and the same required compulsory registration‑‑­Vendor executed general power of attorney in favour of his daughter who, in consequence of that document, executed mutation of the suit‑land in favour of her husband‑‑‑Contention of the plaintiffs was that the agreement was prior in, time to the execution of mutation of the suit land ‑‑‑Validity‑‑­Where agreement was an unregistered document, same did not create any title in favour of the plaintiffs‑‑‑Nothing was available on record to restrain the attorney from executing mutation in favour of any person including her husband‑‑‑Agreement being an unregistered document did not create any title in favour of plaintiffs and the attorney was perfectly within her right to execute the mutation‑‑‑Both the Courts below had returned their findings in accordance with law and the suit was rightly dismissed.

Subedar Muhammad Yousuf v. Muhammad Sarwar Khan and others PLD 1955 Lah. 521; Pyare Lal and others v. Mt. Kalawati AIR 1949 All. 340 and Official Receiver of Salem v. Chinna Goundan and another AIR 1957. Mad. 630 distinguished.

Moosa and others, v. Muhammad Yakoob and others PLD 1966 (W.P.) Kar. 376 ref.

Muhammad Mahmood Bhatti for Petitioners.

Muhammad Sultan Wattoo for Respondents.

Date of hearing: 16th November, 2000.

2001 C L C 1011

[Lahore]

Before Muhammad Nawaz Abbasi and Mian Saqib Nisar, JJ

UNIVERSITY OF THE PUNJAB through

Vice‑Chancellor and 2 others‑‑‑Appellants

versus

SAJID BIN NAWAZ‑‑‑Respondent

Intra‑Court Appeal No.712 in Writ Petition No‑.14993 of 2000, decided on 7th December, 2000"

Calendar of the University of the Punjab‑‑‑

‑‑‑‑Regln. 37‑‑‑Educational institution‑‑Grace marks, grant of-‑‑Candidate had passed M.A. (English) Part I and Part ‑II, individually but there was shortage of four marks in the aggregate‑‑‑High Court, in exercise of Constitutional jurisdiction, directed the University to place the case of the candidate before the Board of Examiners for decision in accordance with law‑‑‑Contention of the University was that the matter of grace marks was to be dealt with exclusively by the University Authorities and not by, the Board of Examiners‑‑‑Validity‑‑‑Matter relating to the educational career of the candidate should be dealt with by the Board of Examiners in preference to the Executive Authority of the University‑‑‑Board of Examiners was independent body which was established and controlled by the University of the Punjab, therefore, there could be no legitimate objection to the entrustment of the matter to the Board.

Muhammad Saleem Sheikh for Appellants.

2001 C L C 1019

[Lahore]

Before Sheikh Abdur Razzaq, J

IQBAL HUSSAIN ‑‑‑ Petitioner

versus

PROVINCE OF PUNJAB through

Collector, Bahawalpur District‑‑‑Respondent

Civil Revision No. 212‑D of 1981/BWP, heard on 11th October, 2000.

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

‑‑‑‑S. 172‑‑‑Allotment of land‑‑‑Jurisdiction of Civil Court‑‑‑Failure to avail proper remedy before filing of civil suit‑‑‑Dispute with regard to allotment of land‑‑‑Father of the plaintiff was a Lambardar and under the scheme the disputed land was to be allotted to his father‑‑‑Certain amount was deposited by the father of the plaintiff towards the cost of the land but no notice for deposit of remaining amount was issued‑‑‑Request in that behalf was made to the Collector but the same was turned down‑‑‑Plaintiff, instead of filing appeal before the Revenue Authorities, preferred civil suit‑‑‑Both the Courts below dismissed the suit for the reason that the plaintiff did not agitate the matter before the higher Revenue forum and chose to file the, civil suit‑‑­Validity‑‑‑Institution of suit was not warranted by law as the only remedy available to the plaintiff was to agitate his claim before an appropriate higher forum and having been unsuccessful, he could agitate the matter before the Civil Court‑‑‑Both the Courts below had rightly non‑suited the plaintiff in circumstances, however, the decision of the High Court would not debar petitioner from agitating the matter before a competent forum.

Chaudhry Abdul Sattar for Petitioner.

Saleem Nawaz Abbasi, A.A.‑G., Punjab for Respondent.

Date of hearing: 11th October, 2000.

2001 C L C 1025

[Lahore]

Before M. Javed Buttur and Ali Nawaz Chawhan, JJ

Dr. Mrs. NASREEN‑‑‑Appellant

versus

PAKISTAN and others‑‑‑Respondents

Regular First Appeal No.34 of 1988, heard on 21st March, 2001.

(a) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑‑S.116‑‑‑"Tenancy in sufferance"‑‑‑Connotation‑‑‑Tenancy in sufferance is one where a tenant continues in possession without the consent of his lessor whereas tenant at sufferance is one who after rightfully being in possession of rented premises continues after his right has terminated‑‑‑Such tenant has no estate nor title but only naked possession without right and wrongfully, and stands in no privity to landlord‑‑‑Tenant at sufferance is not entitled to notice to quit, and is a bare licensee to whom landlord owes merely the duty not to wantonly or wilfully injure him.

Welch v. Rice 61 Wyo. 511, 159 P.2d 502, 506, 509 ref.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑‑S. 116‑‑‑Holding over, effect of‑‑‑Where, a lessor accepts rent or otherwise assents to the lessee's continuing in possession, he is obviously a lessee who is "holding over".

(c) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 116‑‑‑Holding over, principle of‑‑‑Applicability‑‑‑Revised rent rates‑‑‑ Entitlement of the, lessor‑‑‑Lessor by receiving rent sent by the lessee had through her conduct established that there was some sort of permission from her side for the lessee to continue‑‑‑Lessor had issued legal notice on 10‑12‑1985, whereas lease had expired on 31‑7‑1984 and the suit was filed on 13‑1‑1986‑‑‑Effect‑‑‑Tenant was "holding over" and the principle of the holding over as enunciated in S.116 of Transfer of Property Act, . 1882, would be applicable as if the tenancy was on a month to month basis‑‑‑Where the rates had been revised by the Government, such rates should be applicable to the lessor for the period the lessee was "holding over" in the premises‑‑‑Trial Court had wrongly denied the revised rates to the lessor and there was no justification for withholding the revised rates to the premises in question‑‑‑High Court allowed the revised rates to the lessor till the premises were vacated‑‑‑Decree passed by the Trial Court was modified accordingly.

Thetford Corpn. v. Tyler (1845) 8 QB 95 at 101 and Wedd v. Porter (1916) 2 KB 91, CA ref.

Dr. G.S. Khan for Appellant. Qazi Ahmad Naeem, Standing Counsel for Respondents.

Date of hearing: 21st March, 2001.

2001 C L C 1045

[Lahore]

Before Ali Nawaz Chawhan, J

JALIL KANWAR and 2 others‑‑‑Appellants, versus

IFTIKHAR ALI MALIK ‑‑‑ Respondent

First Appeal from Order No.62 of 1997 connected with First Appeal from Order No. 16 of 1999, heard on 19th February; 2001.

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

‑‑‑‑S. 2(d)‑‑‑Rent Controller‑‑‑Functions and duties‑‑‑Rent Controller is a persona designata and performs quasi‑judicial functions which do not absolve him from attending to a case wholeheartedly and conscientiously‑‑‑Rent Controller performs an adjudicatory function where the adversaries look to him for justice in a more informal manner than which is used in the disposal of civil matters under the Civil Procedure Code as such the same calls for a judicial approach reaching a reasonably correct finding.

Iqbal Ahmad Naqi v. Qamar‑un‑Nisa 1989 CLC 1505; Mst. Amni Bi and another v. Hafiz Muhammad Taqi 1990 CLC 984; Abdul Majeed v. Lutfi Siddiqi and 2 others 1987 CLC 455 and Muhammad Nasim Butt v. Mehmood‑ul‑Hassan 1992 CLC 767 ref.

(b) Practice and procedure‑‑‑

‑‑‑‑ In brevity there is virtue, but brevity to the extent that it creates a mystery, is not, taken as a‑virtue in judicial matters.

Irshad Hussain's case NLR 1981 UC 482 and Syed Musharraf Raza's case 1983 CLC 2068 ref.

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

‑‑‑‑Ss. 17(8) & 24‑‑‑Ejectment of tenant‑‑‑Failure to deposit tentative rent‑‑­Defence, striking off‑‑‑Non‑speaking order‑‑‑Failure to give details about the failure on the. part of the tenant in depositing the tentative rent fixed by Rent Controller in prescribed period‑‑‑Effect‑‑‑Order passed by the Rent Controller was inferior in quality which reflected lack of application of mind and hard work and showed a tendency on his part to leave the work of a serious nature to his subordinate staff‑‑‑Such attitude had to be checked through the exercise of visitorial jurisdiction of High Court‑‑‑Order passed by the Rent Controller was set aside and the case was remanded for decision afresh.

Hafiz‑ur-Rehman for Appellants.

Sheikh Zamir Hussain for Respondent.

Date of hearing: 19th February, 2001.

2001 C L C 1055

[Lahore]

Before M. Javed Buttur and Ali Nawaz Chawhan, JJ

AKBAR KHAN through Legal Heirs and 2 others‑‑‑Appellants

versus

PAKISTAN through Secretary, Ministry of Defence, Government of Pakistan, Islamabad and 2 others‑‑‑Respondents

Regular First Appeals Nos.38 to 40 of 1981, heard on 9th January, 2001.

Per M. Javed Buttur, J.‑‑‑

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

‑‑‑‑S. 23‑‑‑Acquisition of land‑‑‑Compensation, determination of‑‑‑Matters to be considered‑‑‑Market value of different pieces of land in one village may be different and the same depends on the quality, classification (of the soil), fertility, location, special characteristic, if any, of the land and the use to which the land can be put by the landowners.

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

‑‑‑‑Ss. 18 & 23‑‑‑Acquisition of land‑‑‑Compensation, determination of‑‑­Determining market value of the lands collectively‑‑‑Validity‑‑‑Duty of Court‑‑‑Landowners were not satisfied with the compensations awarded by the Authorities, 'references under S.18 of Land Acquisition Act, 1894, were made to the Court‑‑‑Trial Court decided the references without separately recording evidence in, each case‑‑‑Validity‑‑‑Where the Court had not determined the market value separately, the orders passed by the Court were set aside and the cases were remanded to the Trial Court for decision afresh.

Per Ali Nawaz Chawhan, J.‑‑‑

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

‑‑‑‑Preamble, Ss. 18 & 23‑‑‑Object‑‑‑Raison d'etre of Land Acquisition Act, 1894, is two‑fold: firstly to fulfil the needs of Government and companies for land required by them for their projects and secondly, to determine and pay compensation to those private persons or, bodies whose land is so acquired‑‑‑Exercise of power of acquisition has been limited to public purposes‑‑‑One of the main intentions of the Legislature is to ensure protection of the rights of the persons whose property is being acquired.

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

‑‑‑‑S. 23‑‑‑Acquisition of land‑‑‑Determination of compensation‑‑'‑Composite award‑‑‑Duties of Court‑‑.‑Failure to comply with the guidelines framed by superior. Courts in determination of compensation‑‑‑Effect‑‑‑Guidelines and the spirit behind S.23 of Land Acquisition Act, 1894, were not followed in full‑‑‑Such attitude had led to prolonged litigation on the one hand, while on the other hand, influential people were benefited through payment of fat compensation than what they deserved‑‑‑Exercising such discretion with capriciousness and arbitrariness led to a lot of injustice which was deprecated by the High Court‑‑‑Trial Court had lost sight of criteria and the guidelines fixed by superior Courts for the ,purposes of compensation‑‑‑Potential of land, its future trends and nature of each land might differ from, case to case‑‑‑Composite award being against the spirit of S.23 of Land Acquisition Act, 1894, orders passed by the Trial Court were set aside.

Pakistan Burmah Shell Ltd. v. Province of N.‑W.F.P. and others 1993 SCMR 1700; Collector, Land Acquisition v. Muhammad Ayub Khan 2000 SCMR 1322 and N.‑W.F.P. v. Haji Ali Asghar Khan and others 1985 SCMR 767 ref.

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

‑‑‑‑S. 23‑‑‑Acquisition of land‑‑‑Compensation,, determination of‑‑‑Some of the guidelines for determination of compensation stated.

The following are some of the guidelines which have been given by the superior Courts from time to time:‑‑

(i) The best method to work out the market value is the practical method of a prudent man laid down in Article 2, Qanun‑e‑Shahadat, 1984, to examine and analyse all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land.

(ii) Subsection (1) of section 23 of the Land Acquisition Act provides that in determining the amount of compensation the Court shall take into consideration the market value, loss by‑reason of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition.

(iii) The best method of determination of the market price of the plots of land under the acquisition is to rely on instances of sale of it near about the date of notification under section 4(i) of the Land Acquisition Act. The next best method is to take into consideration the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of sale of land in the neighbouring locality, the potential value of the land need not be separately awarded because such sales cover the potential value.

(iv) The law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt for determining the market value, classification or the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value may be tremendously high because other benefits.

(v) While determining the value of the compensation the market value of the land at the time of the requisition/acquisition and its potentially have to be kept in consideration.

(vi) Consideration should be land can be put, as well as all the advantages, present or future, land possesses in the hands of the owners.

(vii) In determining the quantum of fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction.

(viii) The measure, of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser... this means that Court has toy determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not. exist.

(ix) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the "past sales" should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as Court‑witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in question, because of the prevalent tendency that in order to save money on the purchases of stamp papers and to avoid the imposition of heavy gain tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The 'previous sales' of the land, cannot, therefore, be always taken to be an accurate measure for the determining the price of land intended to be acquired.

(x) The sale‑deed and mutation entries do serve as an aid to the prevailing market value.

(xi) In cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act.

(xii) The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted, should be taken into consideration.

(xiii) The phrase 'market value of the land' as used in section 23(1) of the Act means 'value to the owner' and, therefore, such value must be the basis for determination of. compensation. The standard must be not a subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition 'at the time of the determination but its potential value must be taken into consideration.

Sh. Zamir Hussain for'Appellant.

Qazi Ahmad Naeem Qureshi, Standing Counsel for Respondents.

Date of hearing: 9th January, 2001.

2001 C L C 1065

[Lahore]

Before Amir Alam Khan, J, MANSOOR TEXTILE MILLS LIMITED, SHORKOT through Syed Jamaat Ali Shah, Managing Director and another‑‑‑Appellants

versus

JAMAIL AKHTAR NASEEB, TEXTILE CONSULTANT, FAISALABAD ‑‑‑Respondent

Regular First Appeals Nos.25, 26, 27 and. 28 of 1987, ,decided on 20th

March, 2001.'

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

‑‑‑‑O. XXIX, Rr. l & 2‑‑‑Limited company‑‑‑Status of‑‑‑Limited company is a. juristic person having independent and distinct entity of its own‑‑‑Such concern need not to be sued through anybody and the simple description of limited company is enough.

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

‑‑‑‑O. XXIX, R.2‑‑‑Service on limited company‑‑‑Procedure‑‑‑Director of the company was party to proceedings‑‑‑Handing over the copy of plaint to the counsel of the Director instead of delivering the same to the company‑‑­Service to the limited company whether good‑‑‑In case of corporations, the summons could have been served on any of the Directors of the corporation‑‑‑Where the counsel for the Managing Director .was in attendance, offering of copy of the plaint to him was enough service on the company in circumstances.

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

‑‑‑‑O. I, R. 10(4) & O. XXXVII, R. 2‑‑‑Summary suit‑‑‑Adding of defendant‑‑‑Failure to issue summons under 'Form IV of Appendix "B"‑‑­Effect‑‑‑Where defendant was added to the suit, summons were required to be‑issued as per, provisions of O.I, R:10(4), C.P.C. and that too in Form IV of Appendix "B", C.P.C.‑‑‑Issuance of such summons was the intent of O.XXXVII, R.2, C.P.C.

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

‑‑‑‑O. XXXVII, R.2 & S.96‑‑‑Suit for recovery of money‑‑‑Failure to issue separate summons to limited company‑‑‑Summons issued to Managing Director of the company whether sufficient for the purpose of summoning of the limited company‑‑‑Omission by the Court‑‑‑Effect‑‑‑Company was arrayed as defendant in the suit by order of Trial Court but no summons in Form IV, Appendix "B", C.P.C. were issued to the company‑‑‑Summons issued to the Managing Director of the company were considered to be sufficient for the purposes of process and the suit was decreed ex pane against the company‑‑‑Validity‑‑‑Act of Court could not prejudice any of the parties to the suit‑‑‑Where the Trial Court neither issued any summons to the company nor the offer whereby amended copy of the plaint was offered to the counsel for the Managing Director was considered to be enough service on the company, prejudice was caused to the company‑‑‑No ex parte decree could be passed against the company‑‑‑Judgment and decree passed by the Trial Court suffered from vitiative infirmity insofar as service of company was concerned and the same was not sustainable‑‑‑Judgment passed by Trial Court was set aside by High Court and the case was remanded for proceedings in accordance with law.

Sebro Pherma Ltd. v. Commercial Printers and Publishers 1989 MLD 1979 rel.

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

‑‑‑‑O. XXXVII, R.3‑‑‑Leave to defend the suit‑‑‑Limitation‑‑‑Failure to issue summons to the defendant in Form IV, Appendix "B", C.P.C.‑‑­Effect‑‑‑Limitation prescribed for to appear and defend the case did not start running against such defendant.

(f) Negotiable Instruments Act (XXVI of 1881)‑‑‑

‑‑‑‑S. 123‑A‑‑‑Civil Procedure Code (V of 1908), O.XXXVII, R.2‑‑‑Suit for recovery of money‑‑‑Cheque crossed with endorsement "payees account only" whether a bill of exchange‑‑‑Such cheque was negotiable or non­negotiable, it was a bill of exchange as understood under O.XXXVII, C.P.C.‑‑‑Bill of exchange need not be negotiable‑‑‑Payees being entitled to receive the proceeds of the crossed cheque, the same did not make any difference if the cheque was crossed with the endorsement of "payees account only"‑‑‑Such cheque remained to be a bill of exchange‑‑‑Suit under the provisions of O.XXXVII, C.P.C. on the basis of crossed cheque marked "payees account only" was maintainable in circumstances.

(g) Interpretation of statutes‑‑‑

‑‑‑‑ Headings of section‑‑‑Referring such headings in interpreting the section‑‑‑Validity‑‑‑Headings of certain sections cannot be referred to, unless there was ambiguity in understanding the clear words of the Section, Order or the Rule.

Messrs Hoosen Brothers Ltd., Karachi v. Messrs Lakhani Corporation, Karachi PLD 1976 Kar. 116 rel., Malik Muhammad Nawaz for Appellant No. l .

Kh. Abdul Hameed Butt for Respondent.

Date of hearing: 12th March, 2001.

2001 C L C 1078

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM BHEEK and others‑‑‑Appellants

versus

Mst. SALAMAT BIBI and others‑‑‑Respondents

Regular Second Appeal No.28 of 1989, heard on 18th January, 2001.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 79‑‑‑Proof of execution of document‑‑‑Article 79, proviso to Qanun­e‑Shahadat, 1984 did not restrict the denial of execution by the executant of the document‑‑‑Proviso to. Art.79, Qanun‑e‑Shahadat, 1984 would not be applicable where execution of the document was denied in a suit or proceedings involving a registered document‑‑‑Party relying upon a registered document was only relieved of the duty of calling the attesting witness but was not absolved ‑ of its duty to prove the document.

Mst. Chandra Kali v. Bhabhuti Prasad and another AIR 1943 Oudh 416; Zaharul Hussain v. Mahadeo Ramji Deshmukh and others AIR 1949 Nag. 149 and Kartar Singh v. Didar Singh and others AIR 1934 Lah. 282 ref.

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

‑‑‑‑S. 27(b)‑‑‑Gift‑‑‑Suit for specific performance of contract‑‑‑Gift being gratuitous transaction the defence available to subsequent vendee under S.27(b) of the Specific Relief Act, 1877 would not be available to the alleged donee‑ even in case of proof of a valid gift, had a valid agreement been proved by the plaintiff and had she (alleged donee) been found to be entitled to specific performance of the agreement.

S.M. Masood for Appellants.

Zafar Iqbal for Respondents.

Date of hearing: 18th January, 2001.

2001 C L C 1086

[Lahore]

Before Muhammad Nawaz Abbasi and M. Javed Buttur, JJ

PAKISTAN through Military Estates Officer, Military Estate Office, Rawalpindi ‑‑‑Appellant

versus

ABDUL AZIZ and another‑‑‑Respondents

Regular First Appeals Nos.28 to 31 of 1985, heard on 26th March, 2001.

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑‑Ss. 4 & 18‑‑‑Acquisition of land‑‑‑Compensation‑‑‑Factors for determination of compensation‑‑‑Disputed property was acquired by the Government and Notification under S.4 of Land Acquisition Act, 1894, was issued‑‑‑Authorities fixed the compensation which was not accepted by the landowners and reference under S.18 of Land Acquisition Act, 1894, was made to the Court‑‑‑Suit land was situated on the main road, a Bank and residential colony was, situated just opposite the suit land‑‑‑Such facts established that the suit land at the time of its acquisition was a building site and the size and location of plots of the landowners showed that the same were commercial in nature and could fetch far greater price than the residential plots which did not abut the main road‑‑‑Trial Court, after recording of evidence enhanced the compensation-‑‑Contention of the Authorities was that the Trial Court failed to consider the "Aust Yak Sala" while. determining the compensation‑‑‑Validity‑‑‑Authorities fell in error in not appreciating the commercial nature of the suit land and the reliance by the Authorities upon "Aust Yak Sala" of the sales in the entire area was not proper as the same would not reflect the commercial nature of the suit land‑‑­Where the Notification under S.4 of Land Acquisition Act, 1894, was issued on 28‑6‑1978, and the award was announced by the Authorities on 29‑12‑1981, i.e. three and half years after the issuance of the Notification, by then the price of the land must have gone further higher than the one ascertained by the Trial Court‑‑‑High Court declined to interfere with the judgment passed by the Trial Court.

Province of Punjab through Collector, Attock v. Engineer Jamil Ahmad Malik and others 2000 SCMR 870 ref.

Qazi Ahmad Naeem Qureshi, Federal Counsel for Appellant.

Babar Bilal for Respondents.

Date of hearing: 26th March, 2001.

2001 C L C 1096

[Lahore]

Before Amir Alam Khan and

Maulvi Anwarul Haq, JJ

MUBARAK DAIRIES LIMITED and 4 others‑‑‑Appellants

versus

AGRICULTURAL DEVELOPMENT BANK

OF‑PAKISTAN through Manager‑‑‑Respondent

Execution First Appeal No.316 of 2000, heard on 22nd February, 2001

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

‑‑‑‑Ss. 9 & 12‑‑‑Contract Act (IX of 1872), S.59‑‑‑Suit for recovery of loan‑‑--Execution of decree‑‑--Application of payment made by debtor' to discharge debt‑--‑Conditions‑‑‑Debtor making payment for discharge of a particular debt‑‑‑Entitlement‑‑‑Debtor would have vested right to indicate that the payment was to be applied towards the liquidation of a particular debt‑‑‑Provisions of S.59, Contract Act, 1872 provided in mandatory terms that where a payment was made with the said indication and creditor accepted the same, then the payment was to be applied according to the indication made by the debtor.

Munshi Emamuddin Ahmad's case PLD 1952 Dacca 279 ref.

Yaqub Khan for Appellant. Qaiser Javed Mian for Respondent..

Date of hearing; 22nd February, 2001

2001 C L C 1100

[Lahore]

Before Maulvi Anwarul Haq, J

Syed NASIR ALI SHAH‑‑‑Petitioner

versus

Syed RIAZ ALI SHAH and another‑‑‑Respondents

Civil Revision No.928 of 1989, heard on 25th January, 2001.

(a) Pleadings‑‑‑

‑‑‑‑Pleadings are not a substitute for evidence.

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

‑‑‑‑S. 27(b)‑‑‑Protection to subsequent vendee ‑‑‑Subsequent vendee of land in dispute being not aware of any agreement of sale earlier arrived at between the vendor and previous vendee, subsequent vendee was entitled to the protection of proviso to S.27(b) of Specific Relief Act, 1877.

(c) Administration of justice‑‑‑

‑‑‑ Civil matters would be decided on basis of probabilities, if material was thereto draw an inference.

Fazle Ghafoor v. Chairman, Tribunal Land Disputes, Dir, Swat at Chitral at Mardan and 6 others 1993 SCMR 1073 ref.

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

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for specific performance of agreement‑‑‑Judgment and decree passed by Trial Court were set aside by Appellate Court dismissing the suit‑‑‑Inference drawn by Appellate Court based on evidence on record was neither perverse nor the result of misreading or non‑reading of evidence‑‑Judgment and decree passed by Appellate Court could not be interfered with by High Court in exercise of its revisional jurisdiction.

Ch. Khurshid Ahmad for Petitioner.

Nemo for Respondent No. 1.

Ch. Nasarullah Warraich for Respondent No. 2.

Date of hearing: 25th January, 2001.

2001 C L C 1112

[Lahore]

Before Raja Muhammad Sabir, J

KARAM BI and another‑‑‑Appellants

versus

KHAN BAHADUR through Mukhtar Aam

Muhammad Hayat and 11 others‑‑‑Respondents

Regular Second Anneal No.4 of 1976, heard on 27th November, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Contract Act (IX of 1872), S.20‑‑‑Suit for declaration‑‑‑Appellate jurisdiction of High Court in second appeal‑‑‑Mistake as to matter of fact‑‑‑Effect‑‑‑Plaintiffs in their suit had assailed judgment and decree passed in earlier suit on the ground that parties in that suit were under a bona fide mistake as to suit property‑‑­Plaintiffs had also asserted that the agreement on basis of which decree was passed was void as both parties were under mistake as to matter, of fact essential to the agreement‑‑‑Trial Court decreed the suit and decree earlier passed was declared to be ineffective and inoperative against the rights of the plaintiffs and said findings of the Trial Court were concurred by Appellate Court below‑‑‑Concurrent findings of fact recorded by both Courts below being perfectly in accordance with the evidence on record,, warranted no interference by High Court in second appeal.

Malik Kabir Ahmad for Appellants.

Ajmal Kamal Mirza for Respondents.

Date of hearing: 27th November, 2000.

2001 C L C 1119

[Lahore]

Before Maulvi Anwarul Haq, J

KHUDA BAKHASH and others‑‑‑Appellants

versus

PUNJAB PROVINCE through Collector, Sargodha and others‑‑‑Respondents

Regular First Appeals Nos.29, 43 of 1982 and Writ Petition No.21545 of 1998, heard on 15th December, 2000.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss. 10 & 30‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Proprietary rights, entitlement to‑‑‑Suit for declaration‑--‑Original lessee of land in dispute was found to be entitled to conferment of its proprietary/occupancy rights and proceedings in that respect were started, but due to some inaction on the part of the State Functionaries, the formalities could not be taken up and completed‑--‑Authorities resumed the land on the ground that order of conferment of proprietary/occupancy rights having not been passed in favour of plaintiff/legal heirs of the deceased lessee, they were not entitled to the proprietary rights‑ Plaintiffs were ready to fulfil all the conditions applicable for conferment of said rights, but Courts below, concurrently dismissed the suit under the erroneous assumption that since a formal document or order of conferment of rights had not been passed in favour of the plaintiffs; they were not entitled to proprietary/occupancy rights‑‑­Validity‑‑‑Entitlement to the proprietary rights and the conferment of the same were two different things‑‑‑Former (entitlement) could lend to the latter (conferment), but latter would not show that former did not exist‑‑‑Plaintiffs who were in possession of suit land and had not violated any terms of the lease, were entitled to the grant of occupancy/proprietary rights subject to fulfilment of terms and conditions‑‑‑Concurrent erroneous orders of Courts below were set aside by High Court.

Ibrahim v. Mst. Rajji and others PLD 1956 Lah. 609 ref.

Ch. Khurshid Ahmad for Appellants.

Muhammad Farooq Qureshi Chishti for Petitioners (in Writ Petition No.21545 of 1998).

Kh. Muhammad Akram for the Private Respondents.

Ch. Muhammad Jehangir Wahla, A.A.‑G. for the Official Respondents.

Dates of bearing: 14th and 15th December, 2000

2001 C L C 1128

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD SHARIF and 6 others‑‑‑Petitioners

versus

BORDER AREA COMMITTEE, LAHORE, through Chairman and 2 others‑‑‑Respondents

Writ Petition No. 161/R of 1989, heard on 24th January, 2001.

West Pakistan Border Area Regulation, 1959 (M.L.R.9)‑‑‑

‑‑‑‑Sched. III, Para. 9, Condition No. l 1 [as amended through West Pakistan Border Area Regulation, 1959 (Punjab Amendment) Ordinance (III of 1981)]‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Allotment of land‑‑‑Cancellation‑‑ ‑Original allottee after payment of requisite dues to the Authority had become full owner of land and proprietary rights were conferred on him and mutation in respect of said land was also sanctioned in his name‑‑‑Allottee thereafter sold some of the land through registered sale‑deed for consideration to vendee who further sold the same‑‑­Allotment of said land and subsequent sales thereof were cancelled by the Authority on the ground that sale of land by original allottee made without obtaining sanction of the General Headquarter was in contravention of West Pakistan Border Area Regulation, 1959 (M.L.R.9)‑‑‑Validity‑‑‑When the sale‑deed in respect of land in dispute was presented for registration, Sub-­Registrar had not raised any objection regarding violation of any conditions of M.L.R.9 of 1959 and Government Functionaries had also not cared to check the restrictions on the sale of land in dispute‑‑‑Innocent vendee of land in dispute had checked the Revenue Record and found the same free from all incumbrances and entered into bargain and purchased it after paying huge amount to the original allottee‑‑‑Deputy Commissioner under the Scheme could get the sanction from General Headquarter for the transfer of land in favour of vendee if any objection with regard to his suitability was found but no such reference was made to General Headquarter as contemplated by conditions of allotment which could be made even by the Authority before passing cancellation order ‑‑‑Vendee of land in dispute could not be deprived of valuable property on mere technical objection‑‑‑Order of Authority cancelling allotment and subsequent sale in favour of vendee was declared to be illegal and case was remanded to be decided afresh after obtaining requisite sanction.

Ch. Muhammad Abdullah for Petitioners.

Aamir Zahoor Chawhan for Respondents.

Date of hearing: 24th January, 2001.

2001 C L C 1139

[Lahore]

Before Dr. Munir Ahmad Mughal, J

ABDUL LATIF and 2 others‑‑‑Petitioners

versus

ADDITIONAL SESSIONS JUDGE, SAHIWAL

and others‑‑‑Respondents

Writ Petition No.6468 of 2000, heard on 29th January, 2001..

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 133‑‑‑Pakistan Environmental Protection Act (XXX of 1997), Preamble, Ss.2(xvi), 7, 11 & 16‑‑‑Factories Act (XXV of 1.934), S.10‑---Constitution of Pakistan (1973), Arts.18 & 199‑‑‑Constitutional petition‑‑­ Shifting of factory for abatement of nuisance‑‑‑Executive Magistrate in exercise of powers, under, Criminal Procedure Code, 1898, by his order, directed that leather factory owned by petitioner be shifted and that order was upheld in revision by Additional Sessions Judge holding that factory was causing nuisance to the inhabitants of the locality ‑‑‑Validity‑‑­.Pakistan Environmental Protection Act, 1997 was a complete code for prevention/elimination of any pollution amounting to public nuisance as visualized by S.133, Cr.P.C.‑‑‑Said Act being special statute would override the provisions of general statute i.e. Code of Criminal Procedure, in respect of matters covered by it and provisions of S.133, Cr.P.C. by implication would stand repealed‑‑‑Executive Magistrate and then the Additional Sessions Judge, could not legally pass order for shifting factory of petitioners and they, by passing said order, had overstepped the limits of their jurisdiction‑‑‑High Court in exercise of its Constitutional jurisdiction declared the orders without lawful authority.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Subsequent fegislation on the same subject would, by necessary implication, repeal the earlier law to the extent of material inconsistency or repugnancy.

Muhammad Yusuf Ali Shah v. Federal Land Commission, Government of Pakistan, Rawalpindi and 2 others 1995 CLC 369; Rehmani Gul v. Rent Controller and others 1987 SCMR 866; Punjab Province v. Sita Ram and others PLD 1956 FC 153; Queen v. Champneys (1870‑71) CPLR 344; I.‑G. Police v. Mumtaz Ahmad Waraich PLD 1985 SC. 159 and Mehtab Khan v. Rehabilitation Authority and another PLD 1973 SC 451 ref.

Ch. Abdul Sattar Goraya for Petitioners.

Muhammad AbdulWadood for Respondent.

Date of hearing: 29th January, 2001.

2001 C L C 1160

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL MAJEED LODHI‑‑‑Petitioner

versus

RETURNING OFFICER, HALQA N0.156 TO 163, TEHSIL KAMOKI, DISTRICT GUJRANWALA and 5 others‑‑‑Respondents

Writ Petition.No.3980 of 2001, decided on 14th March, 2001.

Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑Ss. 13, 14 & 18‑‑‑Punjab Local Government Elections Rules, 2000, Rr.9, 10, 16 ‑‑Constitution of Pakistan (1973), Art‑199 ‑‑‑Constitutional petition‑‑‑Nomination papers‑‑‑Rejection of‑‑‑Nomination papers. of candidate were rejected on the ground that number of the ward was wrongly mentioned in the said papers‑‑‑Candidate on coming to know about his mistake filed application for its correction, but same was disallowed by the Returning Officer and nomination papers of the candidate were rejected‑­Order‑of Returning Officer was upheld in appeal by the District Returning Officer‑.‑‑Validity‑‑‑Returning Officer for both the wards (right nub and mistaken number) was the same and wrong description of the number of the ward was just a clerical mistake‑‑‑Returning Officer, in circumstances, ought to have allowed correction especially when prayer in that respect was made well in time by the candidate‑‑‑Nomination .papers for all purposes was an application and was to be treated at par with any other pleading and clerical mistakes or misdescription in the pleadings were to be allowed by Courts to be corrected liberally‑‑‑High Court in exercise of its Constitutional jurisdiction set aside orders of Returning Officer and District Returning Officer being without lawful authority and the candidate was allowed to correct number of ward in his nomination papers.

Mian Muhammad Aslam for Petitioners.

Jahangir Wahla, A.A.‑G. (on Court's call).

2001 C L C 1166

[Lahore]

Before Raja Muhammad Sabir, J

ABDUL KHALIQ through Legal Heirs and another‑‑‑Appellants

versus

MUHAMMAD ANWAR KHAN through Legal Heirs and another‑‑‑Respondents

Regular Second Appeal No. 1010 of 1979, heard on 4th December, 2000.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4, 17 & 21‑‑‑Civil Procedure Code (V of 1908), 5.100‑‑‑Suit for pre­emption‑‑‑Rival suit‑‑Second appeal‑‑Plaintiff who filed suit for pre­emption on ground of being collateral of vendor had resisted rival suit filed by daughter of the vendor alleging that suit filed by. her was collusive and was filed not for her own benefit, but for the benefit of vendee and at the instance of vendee ‑‑‑Daughter of vendor who was a simple, illiterate and Pardahnashin village lady, though in her examination‑in‑chief had stated that she had filed suit at the instance of vendee, but in her cross‑examination, she had clarified that she wanted suit‑land for herself and no one had forced her for filing suit‑‑‑In order to prove collusion of rival pre‑emptor with the vendee, strict and cogent evidence was necessary but except the admission of daughter of vendor (clarified in her reply to a Court question) no relevant evidence was on record to prove alleged collusion‑‑‑To appreciate evidence of daughter of vendor, her social set‑up, status and her village background would have to be kept in mind‑‑‑Claim of pre‑emptor that rival suit filed by daughter of vendor was collusive and was for the benefit of vendee, could have carried weight had she not been a Pardahnashin, illiterate and simple villager woman‑‑‑Finding of Appellate Court below that no collusion existed between daughter of vendor/rival pre‑emptor and the vendee, arrived at after properly appreciating evidence on record, could not be interfered by High Court in second appeal.

Ghulam Qadir v. Mst. Chattal 1983 CLC 2572; Mst. Shehnaz v. Akhlaq Khan 1996 MLD 1060; Altaf Hussain v. Abdul Majid 1991 SCMR 2523; Jam Pari v. Muhammad Abdullah 1992 SCMR 786; Muhammad Amin v. Maqbool Ahmed 1993 SCMR 498: Lal Din v. Allah Ditta PLD 1967 Lah. 703; Mehr Kamir v. Wali Muhammad and 5 others PLD 1973 Lah. 137 and Muhammad Shafi v. Sardar Khan PLD 1974 Lah., 235 ref.

Hafiz S.A. Rahman for Appellants.

Syed Qalb‑i‑Hassan and Maulvi Ijazul Haq for Respondents.

Date of hearing:. 4th December, 2000.

2001 C L C 1180

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

M.D. TAHIR, ADVOCATE‑‑‑Appellant

versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and another‑‑‑Respondents

Intra‑Court Appeal No.41 of 1998, decided on 15th February, 2001.

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

‑‑‑‑Arts,. 199 & 203(g)‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑ Whether Basant Festival was un‑Islamic‑‑‑Determination‑‑‑High Court, in view of Art.203(g) of the Constitution has no authority in law to determine that Basant Festival is un‑Islamic.

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

‑‑‑‑Arts. 199 & 203‑D‑‑‑Constitutional petition‑‑‑Declaration of any event as un‑Islamic by High Court‑‑‑High Court, jurisdiction of‑‑‑Scope‑‑­Constitution is based on trichotomy ‑‑‑High Court has only jurisdiction to interpret the law and has no jurisdiction to take the role of Legislature‑‑­Proper forum for resolution of such question of law is either to invoke the jurisdiction of Federal Shariat Court under Art.203‑D or to approach the Council‑of Islamic Ideology.

Zia‑ur‑Rehman's case PLD 1973 SC 49 and Mian Nawaz Sharif's case PLD 1993 SC 473 ref.

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

‑‑‑‑Arts. 199, 203‑B & 228‑‑‑Constitutional petition‑‑‑Whether Basant festival was un‑Islamic‑‑‑Constitutional petition was filed to declare the festival as un‑Islamic‑‑‑High Court disposed of the petition on some undertaking given by the Authorities‑‑‑Allowing both the bodies i.e. Federal Shariat Court and Council of Islamic Ideology to operate in the respective sphere, was mandate of the Constitution‑‑‑All such laws, which applied to Muslims in their capacity as Muslims, whether the same were statutory law or otherwise, were left to be dealt with by the Council of Islamic Ideology‑‑­High Court directed the Authorities to act in accordance with their undertaking given by them at the time of disposal of Constitutional petition‑‑‑Council of Islamic Ideology was directed by High Court to consider the matter and to send its recommendation to the competent bodies for further action.

Federation of Pakistan's case PLD 1981 SC 120 rel.

Benazir Bhutto's case PLD 1988 SC 416; Mrs. Shela Zia’s case PLD 1994 SC 693; Muhammad Yousaf's case PLD 1969 SC 153 and Ramzan Welfare Trust's case PLD 1997 Lah. 235 ref.

Petitioner in person.

Malik Maqbool Elahi, A.‑G., Punjab for Respondents.

2001 C L C 1185

[Lahore]

Before Maulvi Anwarul Haq, J

PROVINCE OF PUNJAB and others‑‑‑Petitioners

versus

FAZAL AHMAD and others‑‑‑Respondents

Civil Revision No. 2290 of 1989, heard on 13th December, 2000.

Privately‑Managed Schools and Colleges (Taking Over) Regulation; 1972 (M.L.R. 118)‑‑‑

‑‑‑‑Paras. 4, 5, 6 & 8‑‑‑Nationalization of privately‑managed schools‑‑‑owners of the property had claimed that their father had given a part of their house on rent to Authority for running a school but the Authority had neither paid rent nor had delivered possession of the house to them‑‑‑Authority contended that school having been nationalised ownership of house in question vested in the Authority‑‑‑Validity‑‑‑Privately‑Managed Schools and Colleges (Taking Over) Regulation, 1972 was not intended to take over the properties of the persons who were running privately‑managed schools and colleges‑‑‑Only the administration and the operation of such college or school stood vested in the Provincial Government‑‑‑Title of the properties wherein the schools were being run would remain intact and remain vested it the owners thereof‑‑‑Case of the Authority was not that owner of the property had gifted away the property or had made a Waqf of the same in favour of the Provincial Government‑‑‑Claim of Authority that school having stood nationalized ownership of property in question vested in the e Authority. was rightly rejected.

Board of Foreign Missions of the Presbyterian Church to the United States of America through Lahore Church Council v. The Government of the Punjab through Secretary Education, Civil Secretariat, Lahore and another 1987 SCMR 1197 ref.

Abdul Majid Sheikh for Petitioners.

Nemo for Respondents.

Date of hearing: 13th December, 2000.

2001 C L C 1193

[Lahore]

Before Mian Saqib Nisar, J

KHALID MEHMOOD‑‑‑Petitioner

versus

Syed NAZAR HUSSAIN BOKHARI and 2 others‑‑‑Respondents

Writ Petition No.9428 of 2000, heard on 29th September, 2000.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(3)(a)(i)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Bona fide personal need of landlord‑‑‑Landlord who was resident of another city had not stated that he permanently wanted to reside in the premises in question, but had simply stated that whenever he came to the city where the property was located he had no other place. to stay‑‑‑Was not established that as to how often and for how long he came to the city and stayed there‑‑‑To prove personal requirement its bona fide nature was a condition precedent‑‑­Landlord having failed to prove his bona fide personal requirement in respect of the premises in question, two Courts below should not have allowed the ejectment application on ground of bona fide personal need of landlord.

A.D. Naseem for Petitioner.

Khalid Aziz Malik for Respondents.

Date of hearing: 29th September, 2000.

2001 C L C 1194

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ILYAS and others‑‑‑Appellants

versus

MUHAMMAD SHARIF and others‑‑‑Respondents

No.44 of 1987, heard on 15th December, 2000

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

‑‑‑‑S. 27(b)‑‑Transfer of Property Act (IV of 1882), S.41‑‑‑Suit for specific performance of contract‑‑‑Plaintiffs had claimed that subsequent vendees of suit‑land were aware of agreement earlier arrived at between the plaintiffs and original executor/vendor thereof‑‑‑Subsequent vendees in their written statement had claimed to be bona fide purchasers without notice being in ignorance of earlier sale agreement‑‑‑Case was covered under S.27(b) of Specific Relief Act, 1877 and unlike rigours of S.41 of Transfer of Property Act, 1882 the burden of subsequent purchasers under S.27(b) of Specific Relief Act, 1877 was very light and could be discharged by statement on oath denying the knowledge of earlier agreement‑‑‑Onus to prove in positive terms attributing knowledge of agreement to subsequent vendees thereafter would shift to the plaintiff seeking performance of the contract‑.‑‑In absence of any evidence on record in support of the plea that subsequent vendees were aware of existence of agreement alleged by plaintiff in their plaint, suit was rightly dismissed by the Trial Court and Appellate Court below was not justified to set aside judgment of the Trial Court.

(b) Pleadings‑‑‑

‑‑‑‑Proof‑‑‑Pleadings would not constitute evidence of their contents‑‑‑Facts pleaded, unless admitted by the other party, had to be proved. [p. 1198] B .

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

‑‑O. VIII, R.I‑‑‑Specific Relief Act (I of 1877), S.27(b)‑‑‑Suit for specific performance of contract‑‑‑Written statement as piece of evidence‑‑‑None of the defendants who had filed written statement appeared in Court to support the contents of their written statement‑‑‑Effect‑‑‑Without cross‑examination of defendants the written statement could not have been read into evidence‑‑­Written statement, even if could be referred to as a piece of evidence, could not be relied upon as an evidence of the fact stated in it.

Abdul Majid v. Syed Muhammad Ali Shamim and 10 others 2000 SCMR 1391 and Khair‑un‑Nisa.v. Muhammad Ishque and others PLD 1972 SC 25 ref.

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

‑‑‑‑O. VI, R.1 & O.VIII, R.1‑‑‑Pleadings as evidence‑‑‑Statement of defendant in written statement as piece of evidence‑‑‑Pleadings were not evidence by themselves and a statement of defendant in written statement could not be used as evidence when amounting to admission of plaintiff's pleas.

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

‑‑‑‑O. VIII, R.1‑‑‑Qanun‑e‑Shahadat (10 of 1984),' Art.31‑‑‑Written statement as piece of evidence‑‑Admission of party‑‑‑Written statement even if could be used as evidence of its contents, then at the most the same would constitute an admission on the part of a party under whom the defendant claimed‑‑‑According to provisions of Art. 31. of Qanun‑e‑Shahadat, 1984 the statement made by said party was to constitute admission only if same was during the subsistence of their interest in suit land.

M. Aftab Iqbal for Appellants.

Ahmad Waheed Khan for Respondents.

Date of hearing: 15th December, 2000.

2001 C L C 1203

[Lahore]

Before Dr. Munir Ahmad Mughul, J

MUHAMMAD HUSSAIN ‑‑‑Petitioners

versus

FAIZ BAKHSH and another‑ ‑‑Respondents

Civil Revision No.374/D of 1987, heard on 9th January, 2001

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Scope‑‑‑Concurrent findings of fact by Courts below‑‑‑Interference with by High Court‑‑‑Principles elaborated.

Scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. cannot upset a finding of fact, however, erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such finding of facts can only be interfered with by the High Court under section 115, C.P.C. If the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C., if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record.

(b) 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

Malik Muhammad Akram v. Khuda Bakhsh 2000 CLC 759 ref.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 45‑‑‑Document‑‑Proof‑‑‑Scribe of document failed to appear as witness‑‑‑Effect‑‑‑Such document was not proved in circumstances.

Muhammad Jamil v. Muhammad Sharif 1985 CLC 2353 ref.

(d) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑‑S. 21‑‑‑Land Reforms Regulation, 1972 (M.L.R. No. 115), para.25(3)(d)‑‑‑Partial pre‑emption ‑‑‑Decree to the extent of the share held by the pre‑emptor ‑‑‑Vendee was tenant in the suit‑land and the pre‑emptor claimed his superior right of pre‑emption on the basis of co‑owner of the estate‑‑‑Trial Court passed the decree in favour of the pre‑emptor excluding the proportionate area held by the vendee ‑‑‑Lower Appellate Court upheld the judgment passed by Trial Court‑‑‑Contention by the vendee was that on the basis of his tenancy he was entitled to the exemption of the whole land purchased by him‑‑‑Validity‑‑‑Held, in pre‑emption case it was the sale which was pre‑empted ‑‑‑Share sold was the foundation for claiming of exemption ‑‑‑Vendee was only entitled to the proportionate share of the land under his tenancy‑‑‑Both the Courts below having correctly appreciated the facts and rightly followed the law laid down by Supreme Court in the case of Fateh Khan reported as 1983 SCMR 293, revision was dismissed in circumstances.

PLD 1986 SC 360; Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 and Muhammad Din v. Nizam‑ud‑Din and others 1989

Abdul Rahman 1983 SCMR 293 fol.

Malik Abdul Haq for Appellant.

Kanwar Akhtar Ali for Respondents.

Date of hearing: 9th January, 2001.

2001 C L C 1211

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD RAMZAN through Legal Heirs and another‑‑‑Petitioners

versus

MUHAMMAD AMIR KHAN and another‑‑‑Respondents

Civil Revision No.395‑D of 1988, heard on 28th November, 2000.

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

‑‑‑‑S. 135‑‑‑Specific Relief Act (I of 1877), S.9‑‑‑Dispossession of co­owners in possession by other co‑owner ‑‑‑Requirement‑‑‑Co‑owner in possession could not be dispossessed by the other co‑owners otherwise than by filing a suit for partition or for possession under S.9 of Specific Relief Act, 1877.

Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325 ref.

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration‑‑­Revisional jurisdiction, exercise of‑‑‑Judgments and decrees of Courts below suffering from material irregularity were set aside by the High Court in exercise of its revisional jurisdiction.

Malik Noor Muhammad Awan for Petitioners.

Muhammad Sarwar Rana for Respondents.

Date of hearing: 28th November, 2000

2001 C L C 1265

[Lahore]

Before Malik Muhammad Qayyum, J

Mst. SHAMIM AKHTAR and 3 others‑‑‑Petitioners

versus

DISTRICT JUDGE, NAROWAL and 9 others‑‑‑Respondents

Writ Petition No. 17953 of 1995, heard on 11th April, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 12(2) & O.XLI, R.23‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Application under S.12(2), C.P.C.‑‑‑Limitation‑‑­Framing of additional issue by Lower Appellate Court‑‑‑Remand of case‑‑­Trial Court dismissed the application under S.12(2), C.P.C. as being time­-barred, whereas Lower Appellate Court having found the limitation as mixed question of fact and law framed additional issue and remanded the case to the Trial Court‑‑‑Validity‑‑‑Limitation being a mixed question of law and fact the case was rightly remanded by the Lower Appellate Court after framing of additional issue‑‑‑Constitutional petition was dismissed in circumstances.

Noor Muhammad v. Additional District Judge, Chakwal and others PLD 1994 Lah. 170 ref.

S.M. Masood for Petitioners.

Muhammad Yaqub Sindhu for Respondents.

2001 C L C 1267

[Lahore]

Before Amir Alam Khan, J

PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT CORPORATION LIMITED‑‑‑Petitioner

versus

SHAHDIN LIMITED‑‑‑Respondent

Civil Original No.23 of 1996 and Civil Miscellaneous No.447‑L, 439‑L, 621/L and 622/L of 2000, decided on 10th April, 2001.

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

‑‑‑‑S. 47 & O.XXI, R.64‑‑‑Judicial sale‑‑‑Concept‑‑‑Receiving better offer than the one achieved in auction proceedings‑‑‑Judicial sale, setting aside of‑‑‑Effect‑‑‑Proceedings of judicial sale are held under the umbrella of Executing Court and total steps taken towards such a sale are also taken under the orders passed by the Court‑‑‑Concept of stability of judicial sale is nothing but the sanctity attached to the commitment of the Court‑‑‑Apart from the interest of the two contracting parties, the interest of public at large and commercial morality is also to be considered in the matter of judicial sales‑‑‑Setting aside the sale simply on the basis of better offer may encourage contracting parties to proceed to annul or rescind their commitments if they get better offer than the one settled/accepted by them‑‑­Such setting aside of sale definitely would lead to absurd results inasmuch as the same would tend to develop a culture in the mind of public that if the Judicial sale can be set aside on receiving a better offer why cannot a common man refuse to abide by his commitments if a better offer is received by him‑‑‑One should remain bound to his commitment be it a case of common man or that of a Court.

(b) Companies Ordinance (XLVII of 1984)‑‑

‑‑‑‑Ss. 309 & 319‑‑‑Civil Procedure Code (V of 1908), O.XXI, R.64‑‑­Winding up proceedings‑‑‑Judicial sale, setting aside of‑‑‑After the auction was completed, contributories/shareholders had come forward with a proposal which was to be fulfilled by a third party‑‑‑On the basis of such proposal the shareholders were seeking to stall the winding up proceedings as also setting aside of the judicial sale‑‑‑Validity‑‑‑Judicial sale could not be set aside on the basis of such proposal.

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

‑‑‑‑O. XXI, R.92‑‑‑Sale, confirmation of‑‑‑Duty of Court‑‑‑While processing a sale or confirming the same, the Executing Court is expected to act as a prudent common man/commercial person.

(d) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 309, 319 & 320‑‑‑Civil Procedure Code (V of 1908), S.47 & O.XXI, Rr.64, 65, 66 & 92‑‑‑Execution of decree‑‑‑Auction of mortgagee property‑ ‑‑Offering better price than the one achieved in auction proceedings‑‑‑Setting aside, of sale on the basis of such offer ‑‑‑Validity‑‑­Where the auction proceedings were conducted in continuation of the advertisement. the whole process was transparent and the sale was not concluded by way of restricted auction in the chambers or in the Court‑‑­During the auction proceedings, the bidders had offered their bid in response to the advertisement and continued to compete with each other till such time that one of the bids was accepted by the Joint Official Liquidators and the bid was approved by the Court‑‑‑High Court declined to set aside the sale in circumstances.

Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512 ref.

Azmat Saeed for Petitioner.

Zafar Iqbal Awan and Chaudhry Zafar for Respondents.

Noor Muhammad Khan Chandia for NBP.

2001 C L C 1277

[Lahore]

Before Mumtaz Ali Mirza, J

FAKHAR‑UZ‑ZAMAN ALI CHEEMA‑‑‑Petitioner

versus

GOVERNMENT OF PAKISTAN through Secretary to Government of Pakistan, Cabinet Secretariat, Establishment Division, Islamabad and 2 others‑‑‑Respondents

Writ Petition No.2211 of 2000, heard on 9th March, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Competitive examination ‑‑‑Re­-allocation of group‑‑‑Petitioner qualified Federal Public Service Commission examination and was allocated Accounts Group‑‑‑Due to non‑joining of one other candidate in Income‑tax Group vacancy was created‑‑‑Authorities refused to re‑allocate the vacancy to the petitioner for the reason that common training programme had started in the Academy‑‑‑Validity‑‑‑Where the petitioner had already joined the Academy and was undergoing the Common Training Programme, the request of the petitioner could not be turned down by the Authorities on the plea raised‑‑‑Order passed by the Authorities refusing to allocate Income‑tax Group in place of Accounts Group was illegal, without jurisdiction and without lawful authority‑‑‑ High Court directed the Authorities to allocate Income‑tax Group to the petitioner on account of the vacancy occurring as a result of non‑joining of the candidate‑‑‑Constitutional petition was allowed accordingly.

Petitioner in person.

Mansoor Ahmad, Dy. A.‑G. for Respondents.

Date of hearing: 9th March, 2001.

2001 C L C 1291

[Lahore]

Before Muhammad Nawaz Abbasi, J

Syed HUMAYAN ARSHAD‑‑‑Petitioner

versus

GHULAM RASOOL‑‑‑Respondent

Civil Revision No.3496 of 1994, decided on 3rd April, 2001.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 30‑‑‑Pre‑emption suit, tiled after 31‑7‑1986 on which date the Punjab Pre‑emption Act, 1913 ceased to have effect‑‑‑Limitation provided under Punjab Pre‑emption Act, 1913 would not be applicable to the suits tiled after 31‑7‑1986 on which date the Punjab Pre‑emption Act, 1913, ceased to have effect.

Government of N.‑W:F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Ahmad v. Abdul Aziz PLD 1989 SC 771; Muhammad Shabbir Ahmad Khan v. Government of Punjab PLD 1994 SC 1; Aziz‑ul‑Haq v. Muhammad Asad 1995 MLD 1954 and Iqbal Hussfiin v. Ashiq Hussain 1994 CLC 506 ref:

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 35(2)‑‑‑Punjab Pre‑emption Ordinance (V of 1990), S.30‑‑‑Pre­emption suit‑‑‑Limitation‑‑‑Benefit of S:35(2) of Punjab Pre‑emption Act, 1991‑‑‑Applicability‑‑‑Sale of suit‑property took place on 31‑11‑1989 and the suit was filed on 16‑6‑1990 after promulgation of the Punjab Pre‑emption Ordinance, 1990 on 29‑3‑1990 where period of 4 months for filing the suit for pre‑emption was provided‑‑‑Both Trial Court and Appellate Court dismissed the suit‑‑‑Validity‑=‑After promulgation of Punjab Pre‑emption Ordinance, 1990 on 29‑3‑1990 further delay uptil 16‑6‑1990 in filing of the suit would not be permissible or in any case after 29‑3‑1990‑‑‑Benefit of the provisions of S.35(2) of Punjab Pre‑emption Act, 1991 were not available to the pre‑emptor in circumstances.

(c) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Pre‑emption suit‑‑­Talb, non.‑fulfilment of‑‑‑Limitation‑‑‑Suit was filed during the period when no law of pre‑emption was in existence in the Province of Punjab‑‑‑Where the pre‑emptor failed to fulfil Talabs, the same would automatically take away the right of pre‑emption and question of providing period of limitation for one year would not arise.

Muhammad Shabbir Ahmad v. Government of Punjab PLD 1994 SC 1 ref.

Naseer Ahmad Mirza for Petitioner.

Masood Ahmad Mirza and M.A. Zafar for Respondent.

Date off hearing: 5th December, 2000.

2001 C L C 1298

[Lahore]

Before Ali Nawaz Chowhan, J

ABDUR REHMAN and others‑‑‑Petitioners

versus

MASKEEN and others‑‑‑Respondents

Civil Revision No.402‑D of 1987, decided on 31st May, 2001

Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 2(i)(j)‑‑‑Limitation Act (IX of 1908), Art.91‑‑‑Voidable and void agreement‑‑‑Distinction‑‑‑Limitation‑‑‑Where property had been transferred under a void agreement, the plaintiff was entitled to bring his suit for possession within 12 years and Art.91, Limitation Act, 1908 would have no application.

There is wide difference between an agreement which is voidable and one which is void. A voidable contract is a good contract so long as it is not avoided by the person who has the right to avoid the same, while a void contract is no contract in law, and in the eye of law it does not exist. When a party seeks to avoid a voidable contract and gets certain ancillary relief it follows that if his claim for avoidance of the contract is barred by limitation he cannot get the ancillary reliefs while if the contract is void it is not necessary to have the contract set aside and the rights of the parties can be determined independently of the deed. So, even if the claim for the cancellation of the deed or for declaration that it is void is barred by limitation, the rights of the parties can still be determined independently of the same. Therefore, where property has been transferred under a void agreement; the plaintiff is entitled to bring his suit for possession within 12 years and Article 91 of the Limitation Act, 1908 would have no application.

Mst. Aisha Begum v. Mt. Kundan Jan and others AIR 1945 All. 367; Abdur Rehman v. Abdul Haq and others PLD 1960 (W.P.) Kar. 625; Muhammad Akbar Shah v. Muhammad Yousaf Shah and others PLD 1964 SC 329; Abdul Hamid alias MD. Abdul Hamid v. Dr. Saddique Ali Ahmad and others PLD 1969 Dacca 357 and Dhuman Khan and others v. Gurmukh Singh and others AIR 1936 Lah. 394 ref.

Maulvi Ijazul Haq for Petitioners.

Muhammad Munir Paracha for Respondents.

Date of hearing: 22nd May, 2001.

2001 C L C 1303

[Lahore]

Before Ali Nawaz Chowhan, J

ELAHI BUX and others‑‑‑Appellants

versus

Syed BAQIR BOKHARI and others‑‑‑Respondents

Regular Second Appeal No. 113 of 1983, decided on 23rdMay, 2001.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑A‑‑‑Pre‑emption suit‑‑‑Improvement of status through inheritance by the vendee ‑‑‑Provisions of S.21‑A, Punjab Pre‑emption Act, 1913 speaks of the improvement of status through inheritance by the vendee himself and not by his legal heirs who, upon his death, inherit his status as the pre­emptor in substitution while they may be also having their own status and ownership.

Razzaq A. Mirza and Muhammad Munir Paracha for Appellants.

Bashir Ahmad Ansari for Respondents.

Date of hearing: 4th May, 2001.

2001 C L C 1305

[Lahore]

Before Ali Nawaz Chowhan, J

ARJUMAND ZAHEER AFZAL KHAN‑‑‑Petitioner

versus

REVISING AUTHORITY (CIVIL JUDGE), FATEH JANG and 5 others‑‑‑Respondents

Writ Petition No. 1628 of 2001, decided on 28th May, 2001.

(a) Electoral Rolls Act (XXI of 1974)‑‑‑

‑‑‑‑S. 7‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Cancellation of the name of the petitioner as a voter of the village‑‑Validity‑‑‑Resident for purposes of the Electoral Rolls‑‑­Determination ‑‑‑Factors‑‑‑Principles.

Section 7 of the Electoral Rolls Act, 1974, creates by its deeming clause 7(1) a legal fiction whereby a person though not ordinarily living in an electoral area, is to be considered a resident of that area if he owns or is in possession of a dwelling house or other immovable property in that area. The word "or" appearing in subsection 7(l) is to be used in the disjunctive sense for purposes of this section as this alone preserves the spirit of section 7. It is said in present case that the petitioner did not own property until 28‑4‑2000 in K.K. and as such his National Identity Card and his name appearing in the telephone directory of another place, were ample grounds for considering that he was not a resident of K.K. Whereas, it is to be appreciated that a citizen has a right to migrate to any other place in Pakistan as has been permitted by Article 15 of the Constitution, and a place of residence can always be changed and keeping this in view the words "ordinarily resides" have been used in section 7. According to the petitioner, he had migrated from G.K. in the year 1998 and was living at K.K. with his wife and son. His vote is also not reflected at any other place, which further reflects that presently he has the intention of living in the village K.K. The past history of residences cannot come in his way after he decides to migrate to another place and opts for a change in his residence. A person can always change his domicile and his place of residence. The fact that his wife and son own property in K.K. since long and are voters in that village, should support the case of the petitioner that he also resides with them.

Merely because he acquired through Hiba a property in village K.K. after 15‑4‑2001 when the objections for correction of the electoral rolls were to be made, is not to be read as an evidence against him because his name was already in the electoral list until it was sought to be deleted by the Revising Authority. But the fact of the matter today is that when this case was decided by the Revising Authority on 11‑5‑2001 on remand, the factum of gift of a pre‑date to the date of the decision had to be considered as a factor in his favour.

Admittedly, the petitioner is not a voter in any constituency except the present one, therefore, depriving him of his vote in the constituency of K.K. merely on the ground that the address given in his National Identity Card was different or that his name appeared in the Telephone Directory at a different place, would not be enough as persons may have more than one places of residences and may also move. from a previous residence to a new residence while his name continues to appear at the old address. The Revising Authority had applied the law in a very narrow sense without appreciating its spirit while also not appreciating that a living organism like a human being keeps moving. It was also forgotten that when his family lived at K.K. there is every possibility that he may be eating and sleeping at K.K. aloongwith his family.

The order of Revising Authority was unlawful. It was set aside and it was directed that the petitioner be entered as a voter of village K. K.

Franchise is one of the most valuable rights in a citizen. No one should be deprived of it at any stage.

The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes, he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode.

One must consider the residence to be where the voter sleeps habitually.

The word "resident" when used as a noun, means a dweller, habitant or occupant; one who resides or dwells in a place for a period of more or less duration; it signifies one having a residence, or one who resides or abides.

Inland Revenue Commissioner v: Lysaight (1928) AC 234; Hanson v. P.A. Peterson Home Ass'n 35 III. App.2d 134, 182 N.E.2d 237, 240; Chaudhry Abdur Razzaq v. The Registration Officer, Okara 1988 SCMR 291; Muhammad Shafi v. Assistant Commissioner/Registration Officer NLR 1992 Civil 235 and Election Commission of Pakistan v. Asif lqbal and others PLD 1992 SC 342 ref.

(b) Words and phrases‑‑‑

‑‑‑‑"Resident"‑‑‑Meaning‑‑‑Word "resident" when used as a noun, means a dweller, habitant or occupant; one who resides or dwells in a place for a period of more or less duration; it signifies one having a residence, or one who resides or abides.

Ch. Afrasiab Khan for Petitioner.

Sardar Zaheer Ahmad Khan for Respondent No.6.

2001 C L C 1319

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

NAZAR MUHAMMAD and 3 others‑‑‑Appellants

versus

ROSHAN IQBAL and 3 others‑‑‑Respondents

Intra‑Court Appeal No. VC of 2000, decided on 7th February, 2001.

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

‑‑‑‑S. 24‑‑‑Transfer of case‑‑‑High Court, jurisdiction of‑‑‑High Court has wide powers under S.24, C.P.C. to transfer a case even outside the territorial limits of the District for administrative reasons in the interest of justice and fairplay.

Messrs Agriculture Traders' case 1993 CLC 1892 ref.

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

‑‑‑‑S: 24‑‑‑Constitution of Pakistan (1973), Art.2G3‑‑‑Transfer of cases‑‑­High Court, jurisdiction of‑‑‑Power of High Court under S.24, C.P.C. is equivalent to power under Art.203 of the Constitution.

Diwan Azmat Saeed Muhammad's case 1996 CLC 1427 ref.

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

‑‑‑‑S. 24‑‑‑Transfer of case‑‑‑Notice to other party‑‑‑Failure to give such notice‑‑‑Effect‑‑‑District Judge, under the provisions of S.24, C.P.C. has to decide the case after notice to other party‑‑‑Where the case is decided without notice to the other party the same would be an irregularity especially when no prejudice is proved.

Mst. Nichhawar Jan's case 1979 CLC 613 ref.

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

‑‑‑‑S. 24‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑‑Transfer of case without notice to other party‑‑‑District Judge without notice to the appellant transferred the case from one Trial Court to the other Court‑‑‑Appellant filed application under S.24, C.P.C. in High Court and the same was dismissed‑‑‑Validity‑‑‑Sole grievance of the appellant for the transfer of the case was that the respondent was Member of Provincial Assembly‑‑‑When the respondent was no more the member and no allegation was made against the Presiding Officer of Trial Court, High Court declined to interfere in intra‑Court appeal in circumstances.

Ahmad Khan v. The Chief Justice and Judges of the High Court of West Pakistan PLD 1968 SC 171; Asad Ali's case PLD 1974 Kar. 345; Ilyas Khan's case PLD 1996 SC 543 and Begum D.F. Hussain's case PLD 1974 Lah. 117 ref.

Mrs. Sadiqa Altaf for Appellants.

Sardar Roshan Ali Sindhu for Respondents.

2001 C L C 1323

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD IBRAHIM through Legal Heirs‑‑‑Petitioner

versus

Malik AKHTAR ALI and 15 others‑‑‑Respondents

Civil Revision No.740 of 1991, heard on 15th February, 2001.

(a) Islamic Law‑‑‑

‑‑‑‑Will‑‑‑Testator could not make bequest of all his property in favour of his heirs without the consent of all the heirs and the consent was to be expressed both in the lifetime of the testator as also after his death‑‑‑If the testator after making the will proceeded to alienate the said property or any part thereof, then such act of alienation would constitute revocation of will.

Zil Muhammad and 3 others v. Mst. Hayat Bibi and 2 others 1971 SCMR 514; S. Sibtain Fazli v. Star Film Distributors and another PLD 1964 SC 337 and Mst. Sardar Bibi and others v. Abdul Latif and others PLD 1952 Lah. 294 ref.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 20‑‑‑ Void agreement‑‑‑Where both the parties to an agreement, were under a mistake as to a matter of fact essential to the agreement, the agreement would be void.

(c) Islamic Law‑‑‑

‑‑‑‑ Will‑‑‑Once it was found that the will was non‑existing for having been revoked, the property owned by testator would devolve upon the parties in accordance with their Muslim Personal Law shares immediately upon death of testator and they would become co‑sharers.

Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

Riyasat Ali Chaudhary for Petitioners.

Mian Nisar Ahmad for Respondents.

Dates of hearing: 13th, 14th and 15th February, 2001.

2001 C L C 1332

[Lahore]

Before Raja Muhammad Sabir and Zafar Pasha Chaudhary, JJ

Mst. GHAFOORAN JAN through Legal Heirs‑‑‑Appellant

versus

MUHAMMAD ANWAR KHAN through Legal Heirs and 15 others‑‑‑Respondents

Regular First Appeal No.20 of 1988, heard on 14th December, 2000

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

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Plaintiff had sought declaration to the effect that sale and mortgage transaction in respect of suit property by her brother, who was her general attorney, were illegal, without jurisdiction, null and void without consent of plaintiff, inoperative against her right and liable to be cancelled‑‑‑Plaintiff had alleged that defendant being her general attorney was empowered only to supervise and manage suit‑land and had no authority to sell or mortgage the same‑‑‑General power of attorney executed by plaintiff and her other sisters in favour of their brother/defendant which was thumb‑marked by plaintiff and others showed that defendant, under registered power of attorney, was empowered to sell, gift, exchange or execute will in respect of said property‑‑‑Defendant being holder of general power of attorney having unrestricted power to alienate the property, transfer of some of the suit‑land by him in favour of his sons and grandsons, could not be objected to by the plaintiff‑‑‑Judgment and decree passed by Trial Court on proper appreciation of evidence, could not be interfered with by High Court in exercise of its appellate jurisdiction.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 70, 72 & 95‑‑‑Oral and documentary evidence‑‑‑Presumption of truth‑‑‑Oral evidence could not be given preference over documentary evidence‑‑‑Documentary evidence and particularly registered document, would carry presumption of truth and a very strong and exceptional evidence is needed to rebut the same.

Bashir Ahmad Ansari for Appellant.

Muhammad Munir Peracha for Respondents.

Date of hearing: 14th December, 2000.

2001 C L C 1337

[Lahore]

Before Maulvi Anwarul Haq, J

AAZAZ AHMAD and 15 others‑‑‑Petitioners

versus

Mst. SHAUKAT BEGUM and 22 others‑‑‑Respondents

Civil Revision No.2243/D of '1986, heard on 8th March, 2001. .

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 96, 115 & 0.1, R.10‑‑‑Non‑impleading of party‑‑‑Appeal against judgment and decree of Trial Court was dismissed by Appellate Court on the ground that one female who was impleaded as one of the defendants in the suit before the Trial Court, had not been impleaded as a party to the appeal‑‑­Reason for non‑impleading of said female was that her name stood omitted in decree‑sheet prepared by the office of the Trial Court, but Appellate Court had failed to take into consideration that fact‑‑‑Appellate Court in dismissing appeal had acted with material irregularity in exercise of its jurisdiction, while dismissing the appeal on short ground that the female had not been impleaded‑‑‑High Court in exercise of its revisional jurisdiction set aside order of Appellate Court.

Said Muhammad and others v. M. Sardar and others PLD 1989 SC 532 ref.

Usman Subhani for Petitioners.

Nemo for Respondents.

Date of hearing: 8th March, 2001.

2001 C L C 1344

[Lahore]

Before Asif Saeed Khan Khosa, J

Mst. HANIFAN BIBI and 3 others‑‑‑Petitioners

versus

Mst. FATIMA and 4 others‑‑‑Respondents

Writ Petition No.2649 of 1989, heard on 10th January, 2001.

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

‑‑‑‑O. XLI, R.25 & S.115‑‑‑Remand of case‑‑‑Jurisdiction of revisional Court‑‑‑Scope‑‑‑Power to remand a case under the provisions of O.XLI, R.25, C.P.C. is attached only in exercise of appellate jurisdiction and the power is not available while exercising revisional jurisdiction.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Scope‑‑‑Court is primarily concerned with jurisdictional aspect of the matter so as to determine whether judgment impugned before High Court suffers from want of authority or jurisdiction or not.

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

‑‑‑‑O. VIII, Rr. 1 & 9‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Piling of another written statement‑‑‑Trial Court did not allow the defendant to file another written statement and her application under O. VIII, Rr. 1 & 9, C.P.C. was dismissed‑‑‑Lower Appellate Court in exercise of revisional jurisdiction allowed the application‑‑‑Validity‑‑­Plaintiffs were unable to point out any jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning on‑the part of Lower Appellate Court so as to warrant interference by High Court in exercise of its extraordinary Constitutional jurisdiction‑‑‑Constitutional petition was dismissed in circumstances.

Kanwar Akhtar Ali for Petitioners.

Respondents Nos. 1, 2 and 3: Ex parte.

Rana Abdul Hakim for Respondent No.4.

Date of hearing: 10th January, 2001

JUDGMENT

The necessary facts giving rise to the present Constitutional petition are that in the year 1982 one Ghulam Hussain, father of the present petitioners, allegedly gifted the property in dispute to the present petitioners. Subsequently upon the demise of the said Ghulam Hussain a mutation of inheritance bearing No. 1122 was attested on 29‑5‑1982 whereby the land in dispute was mutated in favour of the present respondents out of whom respondents Nos. l and 2 are the widows of Ghulam Hussain and respondents Nos.3 and 4 are distant kindred. Aggrieved of that mutation of inheritance the present petitioners filed a suit for declaration and permanent injunction against the respondents on 31‑5‑1982. Respondents Nos. l and 4 submitted a written statement before the .learned trial Court on 27‑3‑1983 wherein it was conceded by them that Ghulam Hussain deceased had in fact gifted the suit‑land to the petitioners during his lifetime and it was further admitted that the mutation of inheritance was wrongly attested in favour of the‑ respondents. On 12‑9‑1982 respondents Nos.2 and 3 had also submitted their written statement but they had opted to contest the gift in question and had supported the mutation of inheritance in favour of the respondents. On 20‑12‑1983 respondent No.4 tiled an application before the learned trial Court under Order VIII, Rules 1 and 9, C.P.C. for permission to file another written statement to replace the one already filed on her behalf and it was maintained by respondent No.4 in the said application that she had never filed the earlier written statement purported to have been filed on her behalf by Sh. Ahsan Hafeez, Advocate and that she had never conceded the factum of the alleged gift in favour of the petitioners. That application of respondent No.4 was contested by the petitioners through a reply which was tiled on 2‑1‑1984. For a proper decision of the said application the learned trial Court framed the following issues:‑‑

(1)Whether defendant No.4‑petitioner had not appointed counsel and that the written statement was not filed at her dictation or instruction? OPA.

(2) Relief

1. In support of her application respondent No :4 appeared before the learned trial Court as A.W.1 and made a statement in that regard. She also produced Sikandar as A.W.2 in support of that application. As against that the petitioners produced Jahangir as R. W .1 before the learned trial Court who happens to be the husband' of petitioner No.
2. The, learned trial Court also recorded the statement of Sh. Ashan Hafeez, Advocate as C.W.1. On the basis of the evidence so recorded tie learned Civil Judge 1st. Class, Sahiv,al dismissed respondent No.4's application in question vide order, dated 21‑1‑1987. That order passed by the learned trial Court was assailed by respondent No. l through a revision petition before the learned District Judge, Sahiwal. Vide order, dated 21‑1‑1988 the‑learned District Judge, Sahiwal framed an additional issue in the following terms:‑‑

"What is the effect of the defendant No.4 being illiterate villager and old lady on the case? OPA"

and sent the file of case to the learned trial Court directing it to her the arguments of the parties on the said additional issue and return its findings thereon to the learned District Judge for proper decision of the revision petition. On 17‑3‑1988 the learned trial Court recorded his findings on issue No.2 and returned the tile of the case to the learned District Judge and subsequently vide judgment, dated 20‑11‑1989 the learned District Judge, Sahiwal accepted the revision petition filed by respondent No.4 and allowed the abovementioned application of respondent No.4 regarding filing a fresh written statement. That judgment of the learned District Judge, Sahiwal has been assailed by the petitioners before this Court through' the present Constitutional petition.

1. In support of the present petition it has been argued by the learned counsel for the petitioners that the learned District Judge had absolutely no jurisdiction to invoke Order XLI, Rule 25, C.P.C. and to frame an additional issue and then to send the case to the learned trial Court for recording a finding thereon as the matter pending before the learned District Judge was a revision petition and not an appeal. According to the learned counsel for the petitioners it is only an appellate Court which can exercise jurisdiction under Order XII, Rule 25, C.P.C. and even in proper exercise of that jurisdiction the matter can be sent to the learned trial Court only for recording of evidence and not for rendering a finding thereon which finding can ultimately be given on such an additional issue by the appellate Court alone and not by the trial Court. The learned counsel for the petitioners has further maintained that the learned District Judge had imported an aspect of Pardanashin lady into this case from nowhere as no such plea had been taken by respondent No.4 in her application in question. He has also argued that the question of Pardanashin lady was also not a part of the additional issue framed by the learned District Judge and, therefore, the learned District Judge was not legally justified in basing the impugned judgment on the said aspect of the case. As against that the learned counsel for respondent No.4 has supported the impugned judgment and has maintained that the exercise of jurisdiction by the learned District Judge, Sahiwal in the matter does not call for any interference by this Court in exercise of this Court's extraordinary Constitutional jurisdiction.

2. After hearing the learned counsel for the parties and going through the record it may straightaway be observed by this Court that .the learned counsel for the petitioners is quite justified in maintaining that the learned District Judge, Sahiwal had no jurisdiction to invoke Order XLI, Rule 25, C.P.C. while exercising revisional jurisdiction. A bare perusal of the scheme of the Civil Procedure Code shows that Order XLI, Rule 25 is attracted only in exercise of appellate jurisdiction and the said power is not to be readily, available while excising revisional jurisdiction. It may also be observed that the learned counsel for the petitioners is once again quite right in maintaining that the question of Pardanashin lady vis‑a‑vis respondent No.4 was quite alien to the matter pending before the learned District Judge; Sahiwal. Respondent No.4 had not taken that plea in her application submitted under. Order VIII, Rules 1 and 9, C.P.C. and, therefore, the said concept could not be imported into this case by the learned District Judge from nowhere. Be that as it may it has been found by this Court that even if both these considerations are taken out of the impugned judgment passed by the learned District Judge, Sahiwal still the impugned judgment can be upheld by this Court on the basis of the evidence available on the record and the other reasons advanced by the learned District Judge.

3. The learned District Judge, Sahiwal had passed a detailed and elaborate judgment in this case in which the entire record of the case had been scrutinized and scanned. It had been found by the learned District Judge that the learned trial Court had not adverted to the evidence properly and some important aspects of this case were ignored by the learned trial Court. The learned District Judge had also observed that the learned trial Court had misread the relevant record and such misreading and non‑reading amounted to material irregularity which warranted interference in revisional jurisdiction. In order to satisfy my own conscience I have also gone through the evidence in this case with the assistance of the learned counsel for the parties. I may observe here that the evidence available on the record is such that the equities of this case did flow in favour of respondent No.4 and her plea that she had not filed the written statement in question before the learned trial Court and had not engaged. Sh. Ahsan Hafeez, Advocate as her counsel merited acceptance. The statement made by Sh. Ahsan Hafeez, Advocate before the learned trial Court as C.W.1 could leave any Court with no option but to hold that it was not proved on the record that respondent No.4 had ever actually engaged the said learned Advocate as her counsel or had submitted the written statement in question through him.

4. As regards the question of exercise of jurisdiction under Order XLI, Rule 25, C.P.C. by the learned District Judge and the illegality in respect thereof it has already been observed above that even if the additional issue framed by the learned District Judge, Sahiwal in this case is taken out of consideration still the evidence on the record remained the same and any reasonable Court could have arrived at the conclusions which had been arrived at by the learned District Judge on the basis of the said evidence.

5. It has also been noticed by this Court that the learned District Judge had already arrived at a definite conclusion that the evidence available on the record had been misread by the learned trial Court which amounted to a material irregularity warranting interference in revisional jurisdiction before he had gone on to advert to the aspect of respondent No.4 being a Pardanashin lady. In .this view of the matter even if the consideration regarding Pardanashin lady is taken out of the impugned judgment passed by the learned District Judge, Sahiwal the said judgment is still sustainable on its merits. Thus, notwithstanding an improper importation of the concept of Pardanashin lady and its legal implications by the learned District Judge into this case it has been found by this Court that the said consideration had no great bearing on the findings of the learned District Judge which were otherwise sustainable on the merits of the case.

6. I am also mindful of the fact that the present petition before this Court is a Constitutional petition filed under Article 199 of the Constitution. In a Constitutional petition the Court is primarily concerned with jurisdictional aspect of the matter so as to determine whether the judgment impugned before this Court suffers from want of authority or jurisdiction or, not. In the present case, apart from the abovementioned inconsequential lapses on the part of the learned District Judge, the learned counsel for the petitioners has remained unable to point out any other jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning on the part of the learned District Judge, Sahiwal so as to warrant an interference by this Court in exercise of its extraordinary Constitutional jurisdiction. This petition is, therefore, dismissed. There shall be no order as to costs.

Q.M.H./M.A.K./H‑31/L Petition dismissed

2001 C L C 1349

[Lahore]

Before Mumtaz Ali Mirza, J

GHULAM MURTAZA‑‑‑Appellant

versus

GUL ZAMAN and 2 others‑‑‑Respondents

Second Appeal from Orders Nos.52 and 53 of 1999, decided on 14th February, 2001.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13(4), (5‑B) & 15‑‑‑Withdrawal of ejectment application ‑‑‑Re­delivery of possession to tenant‑‑‑Entitlement‑‑‑During pendency of ejectment application an agreement was arrived at between the parties and in view of the said agreement landlord withdrew ejectment application‑‑­Landlord, `later on took possession of the premises in occupation of tenants not through execution of any order of ejectment as no ejectment order was passed by Rent Controller at the time of withdrawal of ejectment application but was taken otherwise‑‑‑After reconstruction of the premises, tenants filed application under S.13(4) & (5‑B) of West Pakistan Urban Rent Restriction Ordinance, 1959 for re‑delivery to them the possession of vacated premises, but application was concurrently dismissed by Rent Controller and Appellate Authority‑‑‑Validity‑‑‑Question of the maintainability of the application moved by the tenant for re‑delivery of reconstructed premises, would have arisen only if there had been a formal order of ejectment in favour of the landlord and against the tenants‑‑‑When the ejectment application was withdrawn by the landlord in view of agreement between the parties, there arose no question of passing a formal order of ejectment against the tenants---If any agreement between the parties was alleged to have been violated by the landlord, proper course for the tenants teas to enforce the same against the landlord by having recourse to the Civil Court---Question of applicability of S.13(4) & (5-B) of West Pakistan Urban Rent Restriction Ordinance, 1959 would arise only if the possession of the premises in dispute had been taken by the landlord in pursuance of an order of ejectment, same having not been done, application filed by tenants, was rightly dismissed being misconceived.

Muhammad Ramzan v. Abdul Hadi and others 1983 CLC 2820 and Phool Muhammad v. Abdul Ghaffar 1982 CLC 2575 ref.

Malik Shamsher Ali for Appellants.

ORDER

This order will dispose of S.A.Os. Nos.52 and 53 of 1999 respectively. The facts of forming background of these S.A.Os. are that Masjid Malik Ramzani Paracha situate in Mohallah Sheikh Abdullah Street No. 1 Bhabra Bazar Rawalpindi City through its President Gul Zaman, instituted ejectment petitions under section 13 of the Urban Rent Restriction Ordinance, 1959 against Ghulam Murtaza and Muhammad Yameen tenants in the shops of the said Masjid. During the pendency of the ejectment petitions, the appellants/tenants filed an agreement mark A before the learned Rent Controller seized of the ejectment petitions. As per the said agreement, the appellants/tenants claimed to have arrived at a settlement with the landlord as to the matter of ejectment pending before the learned Rent Controller. The prominent conditions of the agreement mark A were as follows:--

(a) that with effect from the month of December, 1997, the rate of rent of the property in possession of the tenants would be Rs.500 instead of Rs.250:

(b) that the tenants shall vacate the shops in their occupation as arid when the same shall be required by the Masjid for its extension.

1. Upon the said applications being moved by the tenants before the learned Rent Controller, the landlord i.e. Masjid above-named withdrew the applications for ejectemnt filed by it against the tenants. As the ejectment petitions had been withdrawn by the Masjid in terms of the aforesaid compromise, there was no question of a formal order of ejectment being passed against the tenants or in favour of the Masjid. The Masjid/landlord later took the possession of the shops in occupation of the appellants/tenants not through execution of any order of ejectment as there was no order of ejectment at all but otherwise. After the reconstruction of the shops by the Masjid, the appellants/tenants filed applications before the learned Rent Controller for re-delivery to them the possession of the shops vacated by them in favour of the Masjid. Their applications were dismissed by Mr. Khizar Hayat Gondal, learned Rent Controller Rawalpindi vide his orders, dated 15-5-1999 holding that as there was no formal, order of ejectment passed by the learned Rent Controller and instead the landlord/Masjid had withdrawn the ejectment petitions against the appellants/tenants, there was no question of directing the delivery of the possession of shops to the appellants/tenants. Against this orders of the learned Rent Controller made on the applications of the appellants/tenants, they preferred appeals before the learned- District Judge which came to be laid before Kh. Imtiaz Ahmad, a learned Additional District Judge at Rawalpindi. He dismissed the appeals filed by the appellants/tenants vide his orders, dated 25-6-1999, holding to the same effect as was held by the learned Rent Controller. Thus, feeling themselves aggrieved of the orders of the learned Rent Controller and those of the learned appellate Court, the appellants/tenants. have approached this Court in second appeal.

2. Malik Shamsher Ali, Advocate appeared for the appellants while the respondents were represented by Mr. Muhammad Akmal Khan, Advocate Sardar Muhammad Aslam, Advocate a senior member of the Bar Association, was appointed as amicus curiae to assist the Court in attending to the question raised in these S.A.Os.

3. Learned counsel for the appellants submitted that order allowing withdrawal of the ejectment petitions ought to have been read with the agreement mark A by the Courts below and if so read, it would show that the order allowing withdrawal of the ejectment petitions and the compromise mark A constituted an order of ejectment within the meaning of section 13 of the Urban Rent Restriction Ordinance, 1959. That being so, the appellants/ tenants were very much entitled to seek re-delivery of the shops previously in occupation and vacated by them in favour of the landlord/Masjid.

4. Learned counsel for the respondents on the other hand submitted that a perusal of the record placed before this Court by the appellants/tenants would show that on the agreement mark A being placed before the learned. Rent Controller, the landlord/Masjid withdrew the ejectment petitions against the appellants/tenants. No formal order of ejectment within the meaning of section 13 of the Urban Rent Restriction Ordinance, 1959 was passed by the learned Rent Controller nor the possession was taken by the landlord/Masjid in execution of any such order of ejectment. He maintained that in that view of the matter, there was no question of re-delivery of the reconstructed shops to the appellants/tenants within the meaning of section 13(4) and (5-B) of the Urban Rent Restriction Ordinance, 1959. Learned counsel for the respondents in support of his this plea placed reliance on Muhammad Ramzan v. Abdul Hadi and others 1983 CLC 2820 and Phool Muhammad v. Abdul Ghaffar 1982 CLC 2575. -

5. I have considered and evaluated the respective submissions of learned counsel for the parties and, have gone through the orders passed by the learned Tribunals below very carefully. The admitted position on the record is that on the compromise having been arrived at between the parties i.e. Masjid and its tenants, the landlord withdrew the ejectment petitions. It is plain that when the ejectment petitions were withdrawn by the landlord, there was no question of passing a formal order of -ejectment against the tenants within the meaning of section 13 of the Urban Rent Restriction Ordinance, 1959. It is also a matter of record that as there was no formal order in favour of the landlord and against the tenants, the shops in occupation of the appellants/tenants were also not taken possession of by the landlord through the execution of any formal ejectment order. For, there was none. The question of the maintainability of the application moved by the appellants/tenants and re-delivery of the reconstructed shops by the Masjid would have arisen only if there had been a formal order of ejectment in favour of the landlord and against the tenants. If there was any agreement between the parties which was alleged to have been violated by the landlord/Masjid, proper course for the appellants/tenants was to enforce the agreement against the landlord/Masjid by having recourse to the Civil Court. The question of section 13(4)(5-B) of the Urban Rent Restriction Ordinance, 1959 being attracted would arise only if the possession of the shops in dispute had been taken by the landlord in pursuance of an order of ejectment. The same not having been done, as aforesaid, the applications moved by the appellants/tenants before the learned Rent Controller were wholly 'misconceived and were rightly dismissed by the learned Tribunals below. There is no force in these S.A.Os. and the same are dismissed in limine.

H.B.T./G-70/L Appeals dismissed.

2001 C L C 1355

[Lahore]

Before Ch. Ijaz Ahmad, J

YOUSAF ABBAS ---Petitioner

versus

DISTRICT MAGISTRATE and others---Respondents

Writ Petition No.4728 of 2001, heard on 26th March, 2001.

(a) Constitution of Pakistan (1973)---

----Preamble---Characteristics of the Constitution---Obligation of citizens--­Constitution was a commitment of the Nation to work within its framework and it was duty and obligation of the citizens to follow the mandate of the Constitution---Under Constitution it was imperative to put the Nation on the right path and it was moral duty of Nation to follow the footprints of Founder of Pakistan and to follow his basic character for the purpose of strengthening the country and to remove existence of colourable exercise of power in each and every sphere of activity of Governmental officials.

Muhammad v. State PLD 1980 Kar. 1; Abdul Hameed's case PLD 1973 Kar. 344; Government of Sindh through Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283; Maul ana Shah Ahmed Noorani's case PLD 1984 Lah. 222; Riaz Malik's case PLD 1968 Dacca 382; Malik Ghulam Jillani's case PLD 1967 SC 373; Begum Sardar Muhammad Hayat Khan Tuman's case PLD 1969 Lah. 985; Kausar Ali alias Kausri's case PLD 1999 Pesh. 82; Mir Abdul Baqi Baluch's case PLD 1968 SC 313; Dr. Muhammad Shoaib Siddiqui's case 1999 PCr.LJ 747; Mohtrama Benazir Bhutto's case PLD 1998 SC 388; Zahid A4tar's case PLD 1995 SC 530 and Ghulam Mohy-ud-Din's case PLD 1964 SC 829 ref.

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

----S. 24-A---Duty and obligation of public functionaries---Duty and obligation of public functionaries is to redress the grievance of citizens with reasons after applying independent mind.

Messrs Airport Support Service's case 1998 SCMR 2268 and Zain Yar Khan's case 1998 SCMR 2419 ref.

(c) Constitution of Pakistan (1973)---

----Arts. 189 & 190---Judgment of Supreme Court was binding on each and every organ of State.

Ashhad Ausaf Ali for Petitioner. Ch. Ijaz Ahmad, Addl. A.-G. for Respondents.

Date of hearing: 26th March, 2001.

2001 C L C 1401

[Lahore]

Before Jawwad S. Khawaja, J

HASHWANI HOTELS LTD. ‑‑‑Petitioner

versus

CAPITAL DEVELOPMENT AUTHORITY and others‑‑‑Respondents

Writ Petition No.251 of 1998, heard on 19th January, 2001

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Filing of Constitutional petition during the pendency of civil suit‑‑‑Petitioner found civil suit to be an adequate remedy which was why the suit was filed‑‑­ Constitutional petition was tiled only after petitioner's failure to obtain interim relief in the suit proceedings‑‑‑Validity‑‑‑Adequate remedy could not become inadequate merely because the party invoking such remedy had been denied some interim relief‑‑‑Constitutional petition `vas not maintainable in circumstances.

Lahore Development Authority/Traffic Engineering and Transport Planning Agency (TEPA) through Managing Director, Lahore and 3 others v. Metropolitan Corporation, Lahore through Administrator, Jinnah Hall, Lahore and 2 others PLD 1998 Lah. 79; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLO 1975 SC 244; Muhammad Talib v. Karachi Development Authority and 4 others 1999 CLC 813 and Messrs Essem Hotels (Pvt.) Ltd. through its Director v. Capital Development Authority, Islamabad through its Chairman and 2 others 1998 CLC 1453 distinguished.

Muhammad Idrish v. East Pakistan Timber Merchants Group and another PLD 1968 SC 412; M.O. Ghani, Vice‑Chancellor, University of Dacca v., Dr. A.N.M. Mahmood PLD 1966 SC 802; Haji Muhammad As hraf v. The District Magistrate, Quetta and 3 others 2000 SCMR 238 and Ch. Tanbir Ahmed Siddiky v. The Province of East Pakistan and others PLD 1968 SC 185 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Disputed question of fact‑‑­Controversies between the parties were of substantial nature and needed to be gone into by the Civil Court at a proper trial‑‑‑Effect‑‑‑Where there were various issues which were disputed between the parties and needed in‑depth consideration, Trial Court was the only appropriate forum in circumstances.

Essem Hotels (Pvt.) Ltd. through its Director v. Capital Development Authority, Islamabad through its Chairman and 2 others 1998 CLC 1453 distinguished.

Muhammad Raza Farooq for Petitioner. Hamid Khan and Ghulam Hassan Gulshan for Respondents.

Dates of hearing: 16th, 17th, 18th and 19th January, 2001.

2001 CLC 1410

[Lahore]

Before Abdul Shakoor Paracha, J

MUGHLA and others‑‑‑Petitioners

versus

JAFFAR and others‑‑‑Respondents.

Writ Petition No. 7590 of 2001, decided on 9th May, 2001.

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

‑‑‑‑S. 115, proviso [as added by Code of Civil Procedure (Amendment) Act (VI of 1992)‑‑‑Revision‑‑‑Limitation‑‑‑Revision application by virtue of proviso added by Code of Civil Procedure (Amendment) Act, 1992, in S.115, C.P.C. has to be made within 90 days of the decision of the subordinate Court‑‑‑Revision application filed beyond prescribed period of limitation is, thus, not entertainable.

Deputy Commissioner, Pishin v. Abdul Salam and others PLD 1993 Quetta 121; Mirza Ali Asghar v. Qadeer Ahmad 1993 CLC 1869 and Allah Dino and another v. Muhammad Shah 2001 SCMR 286 ref.

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

‑‑‑‑S.. 115‑‑‑Limitation Act (IX of 1908), Ss.5 & 29‑‑‑Constitution of Pakistan (1973), Art.,199‑‑‑Constitutional petition ‑‑‑Revision‑‑‑Condonation of delay‑‑‑Provisions of~S.5, Limitation Act, 1908‑‑‑Applicability‑‑‑Revision was filed against order passed by Trial Court after delay of four years‑‑­Lower. Appellate Court did not condone the delay and the revision was dismissed‑‑‑Validity‑‑‑Delay in filing of revision petition could not be condoned, as S.5 of Limitation Act, 1908, had not been made applicable in accordance with S.29 of Limitation Act, 1908, on the revision petition under 5.115, C. P.C.‑‑‑Lower Appellate Court had rightly refused to entertain the application under S.5 of Limitation Act, 1908‑‑‑Constitutional petition dismissed in limine.

Mirza Ali Asghar v. Qadeer Ahmad 1993 CLC 1869 ref.

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

‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), 5.115‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Case decided by Court, in its revisional jurisdiction‑‑‑Assailing such order in Constitutional jurisdiction ‑‑‑Validity‑‑‑ Once the case is decided by the Court in its revisional jurisdiction against the order passed by the Court of competent jurisdiction, such order cannot be challenged before High Court in Constitutional jurisdiction.

Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 ref.

Ikram‑ud‑Din Khan for Petitioners.

2001 CLC 1412

[Lahore]

Before Ali Nawaz Chowhan and M. Javed Buttur, JJ

PETROSIN PRODUCTS (PVT.) LTD. ‑‑‑Appellant

versus

FEDERATION OF PAKISTAN through Secretary, Privatization Commission‑‑‑Respondent

Infra‑Court Appeal No.2 of 2001, heard on 19th April, 2001.

(a) Auction‑‑‑

‑‑‑‑Auction of property‑‑‑Bidding‑‑‑Object‑‑‑Rationale behind bidding 9s well‑known to the commercial world and the purpose is to earn maximum price for a property through open competition in the market.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Discretion used by Executive Branch of Government‑‑‑Judicial, review of‑‑‑Scope‑‑‑Courts have to ensure that discretion which is vested in executive branch of Government is exercised fairly and not arbitrarily and wherever discretion by the executive branch of Government smacks of arbitrariness, discrimination or unfairness, a need arises for judicial review of such administrative actions‑‑‑Purpose of the judicial review is to control the abuse of power and unfairness.

(c) Discretion‑‑‑

‑‑‑‑Connotation‑‑‑Discretion is the principal source of creativeness in Government and law, yet every truth extolling discretion may be matched by a truth about its dangers‑‑‑Discretion is a tool only when properly used; like an axe, it can be a weapon for mayhem or murder.

Rookke's case parte (1598), 5 Co. Rep. (9‑b) and Sharp v. Wakefield (1891) A.C. 173/ .179 ref.

(d) Discretion‑

‑‑‑‑ Use of discretion‑‑‑Pre‑condition‑‑‑Discretion under the provisions of administrative law should fulfil the requirements i.e. open plans; open policy statement; open rules; open findings; open reasons open precedents and fair informal procedure‑‑‑Where, discretion is to be structured, the object is its regularization, its organization and giving it an order.

(e) Auction‑‑‑

‑‑‑‑ Bid, non‑acceptance of‑‑‑Refusal to give reasons‑‑‑Validity‑‑‑Where results achieved at the time of bidding are not to be approved, there is demand of propriety and also of reasonableness that the successful bidder is informed of the reasons for the non‑acceptance of his bid and of providing him opportunity so that legitimate expectancy of tire bidder gets satisfactory answer.

R. v. Secretary of State for the Home Department, ex. parte Khan (1985) 1 All‑ER (sic) ref.

(f) Constitution of Pakistan (1973)‑‑­

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Judicial review of public auction‑‑‑Principles of natural justice, violation of‑‑‑Refusal to give reasons for non‑acceptance of highest bid‑‑‑Privatization Commission of the Government offered State‑owned establishment 'for sale through public auction‑‑‑Bid of highest bidder was not confirmed by the Cabinet. Committee on Privatization, despite the fact that recommendation for the approval was submitted by the Privatization Commission and Board of Directors‑‑‑No reason was assigned for the refusal of the bid‑‑‑Validity‑‑‑Where the Cabinet Committee on Privatization deviated from the recommendations on the basis of the summary submitted to it, the Committee had violated the principles of natural. justice‑‑‑Committee ought to have provided a fair opportunity to the bidder of explanation as to why its bid was cancelled‑‑‑As the Committee was taking an aberration from what was recommended to it, propriety and norms required providing of an opportunity of hearing to the bidder and the same was not done‑‑‑Where a wrong had come into being, the same called for correction‑‑‑High Court, referred the matter to the Cabinet Committee for Privatization to provide an opportunity of hearing to the bidder and taking a proper decision keeping in view the principles of fairness and justice‑‑‑Constitution petition was maintainable in circumstances.

Ram and Shyam Company v. State of Haryana and others AIR 1985 SC 1147; Meraj Din v. Noor Muhammad and z others 1970 SCMR 542; Munshi Muhammad and another v. Faizanul Haq and another 1971 SCMR 533; Muhammad Sharif v. Sharifuddin and 3 others 1972 SCMR 63; Babu Parvez Qureshi v. Settlement Commissioner, Multan arid Bahawalpur Divisions, Multan and 2 others 1974 SCMR 337: Muhammad Ali v. District Council, Gujrat and another 1993 MLD 1500; Calicon (Pvt.) Ltd. through Chief Executive The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad 1994 SCMR 1758; Shri Hariminder Singh Arora v. Union of India and others AIR 1986 SC 1527: Javed Hotel Ltd. v. C.D.A. PLD 1994 Lah. 315 and Shrimpton v. Commonwealth (1945), 69 CLR 613 ref.

Abdul Hafeez Pirzada assisted by Mian Gul Hassan Aurangzeb and Mian Feroze Jamal Shah for Appellant.

Raja Muhammad Akram for Respondent.

Dates of hearing: 18th and 19th April, 2001.

2001 C L C 1422

[Lahore]

Before Malik Muhammad Qayyum and Raja Muhammad Sabir, JJ

GOVERNMENT OF THE PUNJAB through Chief Secretary, Punjab, Lahore‑‑‑Appellant

versus

NASEER AHMAD KHAN through Legal Heirs‑‑‑Respondents

Intra‑Court Appeal No.411 of 1980, heard on 20th March, 2001.

(a) Judicial proceedings‑‑

‑‑‑‑Validity‑‑‑Test‑‑‑Such proceedings cannot be valid unless they proceed upon inquiry and render judgment only after trial.

Treatise on the Constitutional Limitations by Thomas M. Cooley (English Edition Vo1.tI) at p.736 ref.

(b) Interpretation of statutes---

‑‑‑‑"Law of the land"‑‑‑,Legislative enactment is not necessarily the law of the land.

Treastise on the Constitutional Limitations by Thomas M. Cooley (English Edition Vo1.II) at p.736 ref.

(c) West Pakistan Acquisition of Property (Residence of Government Officials) Ordinance (XXV of 1963)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Property had been allotted under Settlement laws and Permanent Transfer Deed had been issued‑‑‑Martial Law Order No. 115 by Martial Law Administrator Zone "B" was issued to acquire the said property‑‑­Constitutional petition was filed to assail the validity of the acquisition of the property‑‑‑Validity‑‑‑High Court while allowing the petition had held that West Pakistan Acquisition of Property (Residence of Government Officials) Ordinance, 1963 did not qualify as law, as the same was passed for the purposes of acquiring one property of ~a single individual and was not general in nature‑‑‑Ordinance issued was a legislative judgment which the Legislature was not permitted by the Constitution to pass as the same would be encroaching the field reserved for the judiciary.

(d) Legislative judgment‑‑‑

‑‑‑‑ Connotation and scope‑‑‑ Legislation when a legislative judgment‑‑­Distinctive features‑‑‑Ordinance promulgated for the purpose of acquiring property of a single individual and was not general in nature was a legislative judgment which was not permitted by the Constitution as the issuance of such an Ordinance would be encroaching the field reserved for judiciary.

Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Young v. Sun Alliance and London Insurance Ltd. (1976) 3 All ER 561; Nawabzada Muhammad Umar Khan through Legal Heirs and 4 others v. Pakistan through Secretary, Cabinet Division and 2 others PLD 1982 Pesh. 1 and Pakistan through Secretary, Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan and others 1992 SCMR 2450 ref.

Muhammad Ashraf, Asstt. A.‑G. for Appellant. Abid Hassan Minto for Respondent.

Date of hearing: 20th March, 2001.

2001 C L C 1427

[Lahore]

Before Maulvi Anwarul Haq, J

SAJJAD AHMAD and 4 others through L. Rs.‑‑‑Appellants

versus

WALAYAT KHAN and 5 others‑‑‑Respondents

Regular Second Appeal No.269 of 1984, heard on 15th February. 2001.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 4‑‑‑Right of pre‑emption ‑‑‑Claim of children and wife of vendor as against the other pre‑emptors who were collateral of the vendors‑‑‑Validity‑‑‑Mere fact that the pre‑emptors were children and wife of the vendor would not lead to any adverse inference against them, particularly when the other pre‑emptors were claiming to be collateral of the vendor.

Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 distinguished.

Altaf Hussain v. Abdul Majeed 1991 SCMR 2523 and Saulat Hussain Shah through his Legal Heirs and another v. Amanat Ali and 4 others PLD 1992 SC 228 ref.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Pre‑emption suit‑‑‑Filing of two suits against one transaction‑‑­ Subsequent filing of suit by the children and wife of the vendor ‑‑‑Effect‑‑­ Filing of such suit did not give rise any adverse inference when both the suits were filed within time prescribed by law.

(c) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Pre‑emption suit‑‑‑Rival pre‑emptor ‑‑‑Collusion with vendees‑‑One suit was filed by the respondent on the basis of being collateral of the vendor whereas other suit was filed by the children and wife of the vendor‑‑­Trial Court decreed both the suits wherein first chance to deposit the purchase price was given to the appellants and in case of their failure to deposit, respondent had a right to deposit the sale price‑‑‑Appellate Court reversed the findings of Trial Court and dismissed the suit filed by the appellants for the reason that the suit was collusive‑‑‑Validity‑‑‑No evidence was available on record to prove that the suit had been filed in collusion with the vendees‑‑‑Judgment passed by Appellate Court was based on conjectures while holding the suit to be collusive‑‑‑Judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored by High Court in circumstances.

Muhammad Shahid Saeed for Appellants.

Amar Raza A. Khan for Respondents Nos. 1 to 4.

Nemo for Respondents Nos.5 and 6.

Date of hearing: 15th February, 2001.

2001 C L C 1440

[Lahore]

Before Amir Alam Khan, J

ALI MUHAMMAD ‑‑‑Appellant

versus

GHULAM HAIDER and 4 others‑‑‑Respondents

Regular Second Appeals No.52 and 53 of 1982, decided on 26th December, 2000.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 21‑‑‑Pre‑emption suit‑‑‑Divisible transaction‑‑‑Determination of‑‑‑In order to see whether the transaction is divisible, sale‑deed as also endorsement of Registrar made thereon is to be looked at‑‑‑Intention of the parties at the time of concluding the sale can be gathered from the contents of sale‑deeds as also the endorsement of the Registrar to see as to whether the shares of the parties have been specified and described therein and that the sale price has been contributed in accordance with the shares or whether the same had been paid in lump sum‑‑‑Where neither the shares of the vendees were specified in the sale‑deed, nor the consideration was received by the vendors in proportion to the shares rather it was paid in lump sum, such sale was not divisible.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 21‑‑‑Pre‑emption suit‑‑‑Divisible transaction‑‑‑Intention of parties‑‑‑Factors determining such intention‑‑‑Statement of the vendees contrary to sale‑deed‑‑‑Value of‑‑‑Real intention of the contracting parties to the `sale agreement is to be gathered from the sale‑deed itself and is not to be determined by an act or conduct of the vendees subsequent thereto.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 102 & 103‑‑‑Documentary evidence to exclude oral evidence‑‑­Contradicting contents of documents by oral evidence‑‑‑Validity‑‑‑Oral---evidence led to contradict the contents of a document would be inadmissible in view of the provisions contained in Arts.102 & 103 of the Qanun‑e­-Shahadat, 1984.

Maghi v. Narain and others 6 P.R. 1914 ref.

(d) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 21‑‑‑Right of pre‑emption ‑‑‑Doctrine of sinker ‑‑‑Applicability‑‑­Joint transaction indivisible transaction‑‑‑Joining stranger to the transaction‑‑‑One of the vendees had received his share from the pre‑emptor and made statement in favour of the pre‑emptor but later on had stated that the sale was not joint and the transaction was divisible‑‑‑Contention of the contesting vendee was that the transaction was divisible and doctrine of sinker was not applicable to the transaction ‑‑‑Validity‑‑‑Co‑vendee having made a statement subsequent to the sale transactions could not improve the status of the contesting vendee ‑‑‑Where the contesting vendee failed to point any infirmity in the findings recorded by the two Courts below, High Court declined to interfere with such concurrent findings.

Abdullah and 3 others v. Abdul Karim and others PLD 1968, SC 140; Manghta Khan and others v. Mst. Hamida Begum and others PLD 1981 SC 51 and Muhammad Riaz and others v. Fateh Muhammad and others PLD 1991 SC 1099 distinguished.

Ch. Riyasat Ali for Appellant.

Ch. Khan Muhammad Bajwa for Respondent.

Date of hearing: 12th December, 2000.

2001 C L C 1445

[Lahore]

Before Malik Muhammad Qayyum, J

Messrs SYED BHAIS‑‑‑Petitioner

versus

CHAIRMAN, C.B.R. and others‑‑‑Respondents

Writ Petition No. 17624 of 1998, decided on 22nd.March, 2000.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.19‑‑‑Sales Tax Act (VII of 1990), S.3‑‑‑Constitution of Pakistan (1973), Art. l99‑‑‑Notification No. SRO 506(1)/94, dated 9‑6‑1994 [as amended by Notification No. SRO 384(1)/96, dated 13‑6‑1996]‑‑­Constitutional petition‑‑‑Exemption from customs duty and sales tax‑‑­Wrong mention of Notification‑‑Effect‑‑‑Customs Authorities denied benefit of exemption Notification to the importer, on account of mis-description of Notification‑‑‑Validity‑‑‑Where a person was otherwise found entitled to the benefit of the Notification same could not be refused to him merely on account of wrong mention of the Notification‑‑‑Goods in question were exempted from customs duty partly and the sales tax wholly, when the same were imported‑‑Authorities were directed by High Court to allow the importer the benefit of Notification No. SRO 506(1)/94, dated, 9‑6‑1994 and Notification No. SRO 384(1)/96, dated 13‑6‑1996 accordingly.

Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 fol.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.19‑‑‑Exemption from customs duty‑‑‑Locus standi‑‑‑Goods were imported by another party and the exemption was claimed by some other party‑‑‑Validity‑‑‑Where name of the importer was changed with the consent of the Federal Government and bill of entry was filed by another party, such other party had a right to claim the exemption in circumstances.

(c) Sales Tax Act (VII of 1990)‑‑‑

‑‑‑‑S.3‑‑‑Sales tax. recovery of‑‑‑Doctrine of 'promissory estoppel' and 'vested right'‑‑‑When not applicable‑‑‑Where the importer had taken decisive steps and opened the letters of credit before the withdrawal of exemption, the importer could not be asked to pay sales tax on the theory of "promissory estoppel" and "doctrine of vested rights".

Alsamrez Enterprises v. Government of Pakistan and others 1986 SCMR 1917 ref.

Syed Mansoor Ali Shah for Petitioner.

K.M. Virk for Respondents.

Date of hearing: 22nd March, 2000.

2001 C L C 1447

[Lahore]

Before Bashir A. Mujahid, J

BASHIR AHMAD and 3 others‑‑‑Appellants

versus r

Mst. NASEEM FATIMA and 5 others‑‑‑Respondents

Regular Second Appeal No. 131 of 1970, decided on 15th December, 2000.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4, 15 & 21‑‑‑Suit for pre‑emption ‑‑‑Suit filed by plaintiff through her brother as her general attorney was resisted on ground that same was not properly instituted‑‑‑Power of attorney on basis of which suit was filed through general attorney was executed by plaintiff at time when land in dispute was not even purchased by the vendees‑‑‑General attorney, in circumstances, had no authority to file suit against vendees‑‑‑General attorney being not properly constituted attorney of plaintiff to file the suit, it was incumbent upon plaintiff to appear in Court in support of her plaint, failing which the inference could be drawn against pre‑emptor particularly when specific objection was taken by the defendants that the plaint had not been signed by the plaintiff herself‑‑‑Plaintiff having failed to put herself in the witness‑box for cross‑examination on the facts alleged in the plaint, there was strong possibility to discredit the truth of her case‑‑‑Plaint having not been instituted under the proper authority, findings of Courts below that suit was properly instituted, were erroneous and not sustainable under the law.

Murid Hussain and others v. Muhammad Sharif and another 1996 AC 299; Gul Taj Begum v . Lal Iqbal Hussain PLD 1980 SC (AJ&K) 60; Feroz Khan and others v. Mst. Waziran Bibi 1987 SCMR 1647; PLD 1985 SC 345; Qadir Bakhsh v. Kh. Nizam‑ud‑Din PLD 1997 SC 1267; 1995 CLC 1541 and 1996 CLC 161 ref.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4, 15 & 21‑‑‑Suit for pre‑emption ‑‑‑Partial pre‑emption‑‑­Maintainability of suit‑‑‑Plaintiff had sought decree only for 422 Kanals and 17 Marlas out of 434 Kanals and 17 Marlas‑‑‑Suit was hit by partial pre-­emption‑‑Pre‑emptor had to sue for whole of the property under sale and when departure was made from that rule, the suit would not be maintainable.

Mst. Imam Hussain v. Sher Ali Shah 1994 SCMR 2293; 1998 SCMR 1195 and 1990 CLC 1580 ref.

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

‑‑‑‑O. VI, R. 17‑‑‑Amendment of pleadings‑‑‑Allowing the amendment in a casual manner was not legal.

(d) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 3(1), 4, 15 & 21‑‑‑Suit for pre=emption‑‑‑Superior right of pre emption‑‑‑Plaintiff claimed superior rights of pre‑emption on ground that she owned land in Khata wherefrom vendees had purchased the land‑‑‑Land allegedly owned by the plaintiff was not assessed to land revenue‑‑‑Plaintiff could not claim superior right of pre‑emption on said ground, because the owner of the estate under S.15 of Punjab Pre‑emption Act, 1913 would mean the proprietary body of the village and as a man who owned a small piece of land un assessed to revenue being uncultivated could not be regarded ~as one of the owner`s of the estate‑‑‑Plaintiff who did not own agricultural land, could not be said to be the owner of land in estate and could not claim superior right of pre‑emption against the vendees‑‑‑Mere ownership of land in revenue estate would not be of much assistance to the plaintiff because to be an owner of estate, one must own land in revenue estate which was also assessed to land revenue.

1997 CLC 127; Kint Ram v. Harbat Singh AIR 1940 Lah. 344; 7 Indian Cases 213; PLD 1989 SC 373(2) and PLD 1986 Lah. 242 ref.

(e) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. .3(1)‑‑‑Land. definition of‑‑‑Land must be used for agricultural purposes or for pasture‑‑‑Land of the plaintiff was not being cultivated since long nor same was assessed to land revenue and in spite of plaintiff's being co‑sharer in Khata or owner in estate she did not possess superior right of pre‑emption against the defendants.

(f) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4, 15 & 21‑‑‑Suit for pre‑emption ‑‑‑Superior right of pre‑emption on basis of kinship with the vendor‑‑‑Plaintiff, who claimed superior pre‑emption on ground of kinship with the vendor, could not produce pedigree‑table to show the relationship with the vendor‑‑‑Oral evidence led by the plaintiff on question of her relationship with the vendor was inadmissible‑‑‑Plaintiff, in circumstances, had failed to prove her superior right to purchase the land in question.

Muhammad Hanif v. Ghulam Rasool 1980 SCMR 340 and PLD 1976 SC 767 ref.

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

‑‑‑‑S 100‑‑‑Second appeal‑‑‑Scope‑‑‑Concurrent finding though would not be interfered with in second appeal, but if the same was based on inadmissible evidence and was recorded in disregard of other provisions of Qanun‑e‑Shahadat, 1984 same could be reversed.

1980 CLC 1611 ref.

(h) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4, 15 & 21‑‑‑Suit for pre‑emption ‑‑‑Superior right of pre‑emption‑‑­Wisdom of Legislature by giving superior right of pre‑emption on the basis of ownership in estate or co‑ownership in Khata, was to maintain the exclusiveness of particular tribe or proprietors in the revenue estate and the Joint ownership of family in a Khewat to the exclusion of strangers‑‑‑Concept of superior right, however, had undergone a radical change and had lost its basic purpose by passage of time.

(i) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 15‑‑‑Superior right of, pre‑emptor‑‑‑Concept‑‑‑Concept of superior right of pre‑emptor has undergone a radical change due to migration of large scale of population and their scattered settlement and has lost its basic purpose.

Ch. Saghir Ahmad and Mirza Farrukh Aftab Chughtai for Appellants.

Malik Sharif Ahmad for Respondents.

Date of hearing: 13th December, 2000.

2001 C L C 1455

[Lahore]

Before Abdul Shakoor Paracha, J

MANZOOR AHMAD‑‑‑Appellant

versus

GHULAM NABI‑‑‑Respondent

Second Appeal from Order No.23 of 2001, decided on 3rd May, 2001.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Ejectment of tenant‑‑‑Landlord and tenant, relationship‑ of‑‑­Proof‑‑‑Rent Controller, jurisdiction of‑‑‑Provisions of Civil Procedure Code, 1908, and Evidence Act (Qanun‑e‑Shahadat Order, 1984)‑‑­Applicability‑‑‑Tenant denied the relationship on the ground that he had purchased the premises‑‑‑Neither any agreement of sale nor any sale‑deed had been executed between the parties‑‑‑Tenant failed to produce any receipt in proof of payment to the landlord‑‑‑Suit for specific performance was also not filed by the tenant‑‑‑Both the Courts below had found the plea of the tenant as false and there was no objection on behalf of the tenant regarding admissibility of rent‑deed‑‑‑Effect‑‑‑After having found that the relationship of landlord and tenant existed between the parties and the plea of the tenant proved as false, tenant should not have been permitted to approbate and re-approbate by holding further inquiry into the matter under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Proceedings under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, were summary in nature and the provisions of Civil Procedure Code, 1908, and Evidence Act (Qanun‑e‑Shahadat Order, 1984) were not applicable stricto senso‑‑‑Matter involving title was to be resolved by the Civil Court‑‑­Rent Controller being sure that the tenant was not owner/landlord had proceeded to decide the issue which incidentally might also had included a decision on the question of title‑‑‑If Appellate Court had considered that a deeper and a more detailed examination of title was necessary and title of the alleged landlord suffered from some doubt, the Court should have dismissed the ejectment petition leaving the landlord to move the Civil Court for adjudication of his title‑‑‑Both the Courts below having rightly decided the matter in favour of the landlord‑‑‑Second appeal was dismissed by High Court in limine.

Nisar Ahmad v. Nazar Muhammad PLD 1974 Lah. 489; Rehmatullah v. .".li Muhammad and another 1983 SCMR 1064 and Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1 ref. .

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 72‑‑‑Document‑‑‑Proof of‑‑‑Once document is admitted, the same shall be read in evidence.

Malik Din and others v. Muhammad Aslam PLD 1969 SC 136 ref.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 15(6)‑‑‑Second appeal‑‑‑New. plea, raising of‑‑‑Validity‑‑‑Plea which was not raised or which was abandoned before First Appellate Court, could not be allowed to be raised in second appeal.

Abdul Majeed and others v. Province of Punjab 1990 SCMR 846; Wali Muhammad and others v. Ghulam Rasool 1970 SCMR 471; Government of Punjab v. Jamida Malik and others 1991 MLD 824 and Muhammad Akram v. Syed Imro Ali. Shah 1988 CLC 2228 ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 72‑‑‑Signatures and contents of document‑‑‑Proof of‑‑‑Document admitted in evidence without objection by the other party is sufficient proof of signature and its contents.

Muhammad Yousaf Khan Khatak v. S M. Ayub and others PLD 1972 Pesh. 175 ref.

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 15(6)‑‑‑Second appeal‑‑‑Finding of fact recorded by the forums below on the basis of evidence on record‑‑‑Validity‑‑‑Where there was neither any misreading or non‑reading of evidence, nor there was any ground showing that the decision was based on misreading of evidence, such finding could not be disturbed in second appeal.

Muhammad Shoaib Alam and others v. Muhammad lqbal.and others 2000 SCMR 903 ref.

(f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 15(6)‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal‑‑­Maintainability‑‑‑Provisions of 5.100, C.P.C.‑‑‑Applicability‑‑‑Principles‑‑‑

Second appeal being maintainable under S.15(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 on a question of law principles as mentioned in S.100, C.P.C. were applicable.

Mirza Khalid Mehmood for Appellant.

2001 C L C 1461

[Lahore]

Before Nasim Sikandar and Jawwad S. Khawaja. JJ

COLLECTOR OF CUSTOMS, CUSTOMS HOUSE NABHA ROAD. LAHORE‑‑‑Appellant

versus

ABDUL MAJEED‑‑‑Respondent

Customs Appeal No. 11, Civil Revision I 1 of 1997 and Civil Appeals Nos,42 to 47 of 2000. decided on 23rd April. 2001.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 194‑A. 2 (bbb) & 156‑Appeal to Appellate Tribunal ‑‑‑Jurisdiction of Appellate Tribunal ‑‑Scope and extent‑‑‑Conditions‑‑Right of appeal under S.194-A(1). Customs Act 1969 both before and after amendment) conferred upon a person or Customs Authorities being not with reference to any particular provision of the Customs Act 1969 including its S.156, the assumption of jurisdiction by the 'tribunal with reference to S.156 or Import and Export Regulations was totally unwarranted‑‑‑Appellate Tribunal by interpreting the word "baggage" its denied in S.2 (bbb) of the Customs Act. 1969 by relying upon penalty provisions of S.156 of the Act stretched itself unnecessarily and against clear and simple words of the statute to entertain the appeal and to adjudicate upon the same‑‑‑Ouster of jurisdiction of Appellate Tribunal as contained in proviso to S.194‑A of the Customs Act. 1969 is total and absolute‑‑‑Purpose of S.194‑A of the Customs Act. 1969 is that certain matters of every day occurrence should be left to the discretion of the administrative machinery‑‑Such matters are mostly dependent upon the policy of the Government which keeps on changing in view of changing economic requirements‑‑‑Matters which are purely of administrative nature and need immediate action have been kept out of the ambit of the Appellate Tribunal‑‑ Principles.

Section 194‑A(1) of the Customs Act. 1969 provides for appeals to the Appellate Tribunal in four conditions (three after amendment by Ordinance NO.XXI of 2000. dated 19‑6‑2000). The power of the Tribunal to hear appeals against the aforesaid categories is, however subject to the proviso to subsection (1), which goes to state another four situations in which the Tribunal has no jurisdiction to decide an appeal though the order may very well fall in anyone or more of the classes enumerated in subsection (1).

Appellate Tribunal stretched itself unnecessarily and against clear and simple words of the statute to entertain the appeal and to adjudicate upon the same. In the present case the word "baggage" as defined in section 2 (bbb), Customs Act, 1969 was attempted by the Appellate Tribunal to be interpreted by relying upon penalty provision of section 156. The stated rationale being that since the appellant before them had been found punishable by reference to the said provisions including those providing for penalties against violations of import and export regulations his case was covered by their plenary jurisdiction. This was a novel way to confuse the meaning of a simple word which even a layman will not find difficult to understand. The word "baggage" finds mention in a number of sections of the Act but nowhere there is any indication that it could be interpreted in the light of the penal provisions of section 156.

An appeal without an iota of doubt is a creature of statute and it has to be confined within the limits of statute a right of appeal can be taken away in the same manner it is given. The Legislature is competent to give a qualified or unqualified right of appeal to an aggrieved party. Under the provisions of section 194‑A of the Customs Act, 1969 the right of appeal has been restricted in the four situations contemplated in proviso to subsection (1). One of such situations being where the order though passed by any of the officers mentioned in the main provision no right of appeal will exist if such order relates to any goods imported or exported as "baggage". A similar provisions is also available in Central Excise Act, 1944. Section 35‑B(1) has a similar proviso to oust the jurisdiction of Tribunal in as many as five cases, An ouster of jurisdiction must be taken to be complete where an intendment of the Legislature is clear and the words spelling out the same can readily and conveniently be found in it. The interpretation of ouster of jurisdiction clauses in cases of superior. Courts is different from those provisions which contain an ouster clause in respect of Tribunals of special jurisdiction. While in case of former it is not readily inferred, in case of latter a reasonable inference from the language employed in the statute will be sufficient to constitute ouster.

The interpretation of the Tribunal could have been acceptable only if right of appeal was conferred with reference to the acts punishable under the provisions of section 156. It may be noted that in a number of statutes including the Income Tax Ordinance, 1979 a right of appeal is conferred with reference to an order under a particular section of the statute. However, in case of section 194‑A of the Customs Act, 1969 the matter is somewhat different inasmuch as sub‑clause (a) of subsection (1) confers a right of appeal on any person including the customs authorities to assail "a decision or order" passed by an officer of the customs. Even before the recent amendment made in the provision whereby the word "Collector of Customs" was deleted a decision/order was appealable without reference to any particular section of the Act. Sub‑clause (b) of the section which now stands omitted did contain a reference to section 193 under which the erstwhile Collector of Appeal used to hear and dispose of his appeals. The power to hear appeal as conferred on Collector under the omitted section 193 was also not with reference to any particular provision of law or a section. The only requirement being that officer making the order should be lower in rank than Collector of Customs. Since the right of appeal under section 194‑A(1) (both before and after amendment) conferred upon a person or custom authorities is not with reference to any particular provision of the Act including section 156, the assumption of jurisdiction by the Tribunal with reference to that section or Import and Export Regulations was totally unwarranted.

The golden rule of interpretation of statutes being that every word of the statute must first be assigned its natural meaning. It is only if these meanings do not work or lead to a manifest absurdity that the stage of interpretation is reached. The word "baggage" obviously is not a term of art. If the interpretation of the Tribunal is accepted then almost whole of Chapter XV, sections 139 to 145 and a number of other provisions shall stand removed from the face of the statute. The purpose and use of a provision and the rules interpreting it are so known that no useful purpose will be served by repeating them The intention of the Legislature to oust the jurisdiction of the Tribunal in respect of matters detailed in the proviso is absolutely clear. It appears that the legislature was conscious that an attempt shall be made on the part of the Tribunal to extend its jurisdiction to certain matters which are better left to the discretion of the administrative authorities in the Customs hierarchy, make its intention clear the Legislature after providing for a positive ouster used a specific negative that the "Tribunal shall not have jurisdiction to decide any appeal" if such order related to the matters specified in the proviso. The principle that. an interpretation ought to be made to extend and not to restrict a jurisdiction is certainly not applicable to Tribunals of special jurisdictions. That principle is applicable only to Courts of general jurisdiction particularly those exercising Constitutional jurisdiction. Therefore, the Appellate Tribunal wrongly ignored the double stress employed in the proviso to oust its jurisdiction.

The word "baggage" according to Chambers English Dictionary means, the tents, provisions and other necessaries of an army; a traveller's luggage. The part of the argument based upon the definition of the word in different rules is quite noel. It is that wearing apparel and other personal; professional or household effects of a passenger are baggage but the container, a box or suit‑case is not included in the term. This interpretation however, is not acceptable for two reasons. Firstly the definition of word "baggage" as given in the Baggage Rules enforced from time to time cannot control or restrict the meaning of the word as given in section 2 (bbb) of the Act. Secondly these definitions being peculiar to the purpose for which the rules were being made, cannot be of general import and consequence. The provisions of section 194‑A conferring jurisdiction on the Tribunal to hear appeals against and to respect of certain orders cannot be made dependent upon the quantum or the nature of goods brought in or taken out as "baggage" 'The interpretation of the Tribunal has made the said ouster clause totally redundant One cannot figure out as to how references to the penalty provisions to the Customs Act or the Import and Export Regulations could be taken to support the proposition that suit‑cases and contraband goods concealed therein were not "baggage". The use of words "goods" as well as "baggage" in the proviso rather goes to show that it is not only the goods or the material but also the container in which it is kept comprises a "baggage". Tribunal has not explained as to what issue is likely to arise for determination by the Administrative Authorities or by the Tribunal if passenger brings in or takes out only personal wearing apparel and other professional or household effects to accordance with the prescribed allowances which are neither for sale nor are in commercial quantity The acceptance of this interpretation means that the Legislature in its wisdom mentioned the word "baggage" in the proviso only to keep the record straight inasmuch as the "baggage" conforming to the law and the rules was not to all within the jurisdiction of the Tribunal in any case This assumption is totally unwarranted both as a fact and a legal proposition.

An ouster of jurisdiction is complete where the intendment of Legislature is clear and the words spelling out the ouster can readily and conveniently be found in it The rule of interpretation of an ouster of jurisdiction regarding Tribunals of special jurisdiction and those of superior Courts are totally different. In cases of the Tribunals and other forums of restricted jurisdiction an ouster clause is readily accepted if the words used in the statute sufficiently convey these meanings. The ouster of jurisdiction as contained in proviso to section 194‑A of the Customs Act 1969 in the case of the Tribunal is total and absolute. Its purpose is very clear. It is that certain matter of every day occurrence should be left to the discretion of the administration machinery. These matters are mostly" dependent upon the policy of the Government which keeps on changing in view of changing economic requirements. The other clauses of the proviso also indicate that the matters which are purely of administrative nature and need immediate action have been kept out of the ambit of the Tribunal. Another‑reason for the ouster appears that the first two matters covered the proviso an wholly dependent on appreciation of facts at the given time while the other two categories pertains either to recovery of duties or their repayment from the public exchequer. All such situations fall within the domain of executive functions of the Revenue.

The argument that the Tribunal could not adopt a different view from already taken by it is also not convincing. The precedent as a source of law as we understand it in the common law regime is restricted only to the judgments of the superior Courts A decision by a Tribunal of special or restricted jurisdiction cannot have the force 'of law irrespective of its antiquity It is correct that a consistency of view adopted by a forum exercising judicial functions is necessary for its harmonious working. Particularly for a forum like the Customs Tribunal which is seated at different cities of the Federating units.

In the present case however the earlier decision of the Bench of the Tribunal being per incurrium did not at all hind even a single Bench of the Tribunal. A decision per incurrium does not bind either the same forum or even a lower forum.

The Tribunal had no jurisdiction to entertain appeal.

Behram Khursandian v. The Collector of Customs. Karachi 1968 PCr.LJ 229: Muhammad Rafiq v The State 1980 P Cr. LJ 318. Sh. Muhammad Omer v. Collector of Custom AIR 1966 Cal 37; Muhammad Fareed Jan v. Colonization Officer, Hyderabad PLD 1965 SC 399: Shafiq Hanif (Pvt.) Ltd. v. Bank of Credit PLD 1993 Kar 107 and Abdul Razzak s Collector of Custom 1995 CLC 1453 ref.

(b) Customs Act (IV of 1969)‑‑‑

‑‑S. 2(bbb)‑‑‑"Baggage'"‑‑‑Connotation‑‑‑Word "Baggage" is not a word of art.

(c) Jurisdiction‑‑‑

‑‑‑‑Ouster of jurisdiction must be taken to be complete where an intendment of the Legislature is clear and the words yelling out the same can readily and conveniently be found to it.

Shafiq Hanif (Pvt.) Ltd. v. Bank of Credit PLD 1993 Kar 107 ref.

(d) Interpretation of statutes‑‑‑

‑‑‑‑Ouster of jurisdiction clause in a statute‑‑Interpretation of such clauses in cases of superior Courts is different from those which contain an ouster clause in respect of Tribunals of special Jurisdiction ‑‑While in case of former it is not readily inferred, to case of matter a reasonable inference from the language employed in the statute will be sufficient to constitute ouster‑‑?Principle that an interpretation ought to be made to extend and not to restrict a jurisdiction is not applicable to Tribunals of special jurisdiction and is applicable only to Courts of general jurisdiction.

Shafiq Hanif (Pvt ) Ltd v. Bank of Credit PLD 1993 Kar. 107 ref.

(e) Interpretation of statutes‑‑‑

‑‑‑‑ Every word of the statute must first be assigned its natural meaning and it is only if these meanings do not work or lead to a manifest absurdity that the stage of interpretation is reached.

(f) Precedent‑‑‑

‑‑‑‑ Precedent as a source of law as is understood in the common law regime is restricted only to the judgments of the superior Courts‑‑‑Decision by a Tribunal of special or restricted jurisdiction cannot have the force of law irrespective of its antiquity‑‑‑Consistency of view adopted by a forum exercising judicial functions is, however, necessary for its harmonious working particularly for a Tribunal seated at different cities of the Fedrating, unit.

A. Karim Malik with Khan Muhammad Virk for Appellant.

Ashtar Ausaf Ali, Mian Abdul Ghaffar for Appellants (in Civil Appeals Nos.42 to 47 of 2000).

Dates of hearing: 28th February; 1st, 13th and 14th March, 2001.

2001 C L C 1473

[Lahore]

Before Malik Muhammad Qayyum and Raja Muhammad Sabir, JJ

PAKISTAN NATIONAL SHIPPING CORPORATION, P.N.S.C. BUILDING, KARACHI‑‑‑Appellant

versus

SAMSUNG CO. LTD and 3 others‑‑‑Respondents

Regular First Appeals Nos. 116, 165 and 96 of 1990, decided on 26th February, 2001.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 10‑‑‑Contract‑‑‑C&F contract‑‑‑Meaning‑‑‑In C&F contract, freight is included in cost of goods and the seller is liable to deliver the same at the place named in the contract.

(b) Carriage or Goods By Sea Act (XXVI of 1925)‑‑‑

‑‑‑‑Sched., Art.4(c)‑‑Contract Act (IX of 1872), Ss. 126 & 128‑‑‑Suit for recovery of money ‑‑‑Encashment of Bank guarantee‑‑‑Title in goods when passed to the purchaser‑‑‑Contract between the patties was for the supply of goods from foreign country by plaintiff on C&F basis and the goods were to be delivered in Pakistan‑‑‑plaintiff furnished Bank guarantee in favour of the defendant for due performance of the agreement‑‑‑After loading of the goods, vessel went aground and resulted in total loss of consignment‑‑­Defendant encashed the Bank guarantee as the plaintiff failed to supply the goods‑‑‑Plea by the plaintiff was that as it had performed its part of contract and the delivery was complete, the defendant was not entitled to encash the Bank guarantee as the title of the goods had passed to the defendant ‑‑‑ was filed for recovery of such amount and the same was decreed by the Trial Court‑‑‑Validity‑‑‑Where according to the contract between the parties it was the responsibility of the plaintiff to have supplied the goods in Pakistan, it could not be said that the title in the goods had passed to the defendant when the goods were loaded on the vessel‑‑‑Bank guarantee `itself provided in unequivocal terms that the plaintiff was under an obligation to supply the goods in Pakistan and, therefore, on failure of the plaintiff to supply, the goods for any reason, whatsoever, the defendant was entitled to encash the Bank guarantee‑‑‑Trial Court had wrongly found that the plaintiff was entitled to recover the amount from the defendant‑‑‑Judgment and decree of Trial Court was set aside‑‑‑Appeal was allowed in circumstances.

Mehta & Co. v. Messrs Parmeshardas Parshotamdas AIR 1924 Sindh 4 and Law and Bonar Limited v. British American Tobacco Company, Limited 1916 KB 605 ref.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 126 & 128‑‑‑Bank guarantee‑‑‑Bank guarantee, encashment of‑‑­Failure to supply the goods at the place of delivery‑‑‑Purchaser encashed the Bank guarantee after the seller failed to supply the consignment ‑‑‑Validity‑‑­Bank guarantee constituted independent contract which was quite separate from the main agreement between the seller and the purchaser‑‑‑Where no delivery of goods was made at the place of delivery as undertaken by the Bank, the purchaser Was well within its rights to enforce the guarantee and receive the amount.

Messrs National Construction Limited v. Aiwan‑e‑Iqbal Authority PLD 1994 SC 311 and Haral Textile Limited v. Banque Indosuez Belgium S.A. and others 1999‑SCMR 591 ref.

Yawar Ali Khan, Deputy Attorney‑General for Appellants. Ijaz‑ul‑Hassan for Respondents Nos.1 and 2. MA. Sheikh for Respondent No.3.

Date of hearing: 10th October, 2000.

2001 C L C 1477

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs ROYAL FLYING COACH (PVT.) LTD. through Chairman---Petitioner

versus

COLLECTOR (APPEALS), CUSTOMS AND EXCISE, LAHORE and another---Respondents

Writ Petition No. 1894 of 1989, heard on 2nd February, 2001.

(a) Customs Act (IV of 1969)---

----Ss. 33, 193, 194, 195, 195-A & 196---Constituon of Pakistan (1973). Art. 199---Constitutional petition---Refund of custom duty---Petitioner, after dismissal of appeal by Collector, Customs, without exhausting other remedies available to him under provisions of the Customs Act, 1969, filed Constitutional petition---Maintainability---Once the petitioner had adopted a specific procedure to avail alternate remedy by filing appeal before Collector Customs he had to resist all the other remedies available to him under the relevant law---Petitioner having failed to point out that the order passed by the Authorities was without lawful authority, coram non judice and mala fide. Constitutional petition was not maintainable and was liable to be dismissed in view of alternate remedy available to the petitioner.

Mst. Hussain Bibi's case 1976 SCMR 395; Messrs Kamran Interprises' case PLD 1996 Kar. 68; ALM (Pvt.) Ltd.'s case 2000 CLC 1485; Mrs. Shreen G. Kandawala's case PLD 1989 Kar. 471; Messrs Tripple EM (Pvt.)'s case 1998 CLC 187; Collector of Customs, Custom House, Lahore's case 1999 SCMR 138; Gulistan Textile Mills' case 1983 CLC 1474; K.M. Asif's case PLD 1976 Lah. 158; Messrs M. Bhai Electronic Industries' case 1998 SCMR 1404; Messrs South East Trader's case PTCL 1999 CL 742; collector of Customs' case PTCL 1999 CL 777; PLD 1998 SC 87; Messrs Dada Soap Factory's case PLD 1984 Kar. 302; Messrs Army' Welfare Sugar Mills' case 1992 SCMR 1652; Salah-ud-Din's case PLD 1991 SC 546; Chenab Woollen and Textile Mills' case PLD 1968 Lah. 1116 and Alahram Builders' case 1993 SCMR 29 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Where it was open to an aggrieved person to move another forum or Tribunal for his remedy in the manner prescribed in a statute, High Court would not by entertaining petition under Art.199(1) of Constitution of Pakistan (1973) permit the machinery provided in a statute to be bypassed---Primarily it was discretion of the Court to grant or refuse the relief if it was satisfied that an aggrieved party could have an alternate remedy elsewhere---Relief under Art. 199 of Constitution of Pakistan (1973) was not to be provided where the alternative remedy existed unless there was any exceptional reasons warranting exercise of extraordinary power under Art.199---Exceptional circumstances being that order was wholly without authority; without jurisdiction or the functionary acted mala fide or in unjust manner Existence of alternative remedy by way of appeal or revision was no bar if the case fell in the exceptional circumstances---Rule of alternative remedy was rule of discretion.

Mst Hussain Bibi's case 1976 SCMR 395; Ghazi Fabric International Ltd.'s case PLD 2000 Lah. 349; Alam (Private) Ltd.'s case 2000 CLC 1485; Collector of Customs, Customs House's case 1999 SCMR 138; Mrs. Shreen G. Kandawala's case PLD 1989 Kar. 471; Messrs Kamran Industries' case PLD 1996 Kar. 68; Sh. Gulzar Ali's case 1991 SCMR 590; K.M. Asif's case PLD 1976 Lah. 158; Pir Sabir Shah's case PLD 1995 SC 66; The Collector Customs, Karachi's case PLD 1994 SC 366; Rifat Askari's case PLD 1997 Lah. 285; Kh. Muhammad Munir's case 2000 SCMR 702 Badrud Din's case PLD 1993 SC 399; Abdur Rehman's case PLD 1983 SC 21; Messrs Chappal Builders 's case 1993 SCMR 1108; Shaukat Afzal's case 1993 SCMR 1810; Aslam Traders' case 2000 SCMR 65 and Muhammad Muzaffar Khan's case PLD 1959 SC (Pak.) 9 ref., Sh. Izhar-ul-Haq for Petitioner.

A. Karim Malik for Respondents.

Date of hearing: 2nd February, 2001.

2001 C L C 1489

[Lahore]

Before Maulvi Anwarul Haq, J

PERVEZ ALAM KHAN and 15 others‑‑‑Petitioners

versus

MUHAMMAD MUKHTAR KHAN through Legal Heirs‑‑‑Respondent

Civil Revision No. 1609/1) of 1987, heard on 2nd February, 2001.

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

‑‑‑‑Ss. 39 & 52‑‑‑Record of rights‑‑‑Presumption of correctness‑‑­Presumption of correctness would be attached only to the columns of ownership and of possession given in Record of Rights and no such presumption would be attached to the column of Lagan.

Shad Muhammad v. Khan Poor PLD 1986 SC 91 ref.

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

‑‑‑‑S. 8‑‑‑Transfer of Property Act (IV of 1882), S.118‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for possession‑‑‑Exchange of land‑‑‑Proof‑‑‑. Plaintiffs claimed possession of suit land on the basis of exchange agreement arrived at between predecessors‑in‑interest of parties but defendants denied the title of plaintiffs on basis of alleged exchange‑‑‑Defendants had pleaded that‑alleged exchange was a temporary arrangement and never meant to take effect, but plaintiffs had proved that land in dispute was given in exchange which later on was sold away by defendants‑‑‑Such claim of plaintiffs was not challenged in cross‑examination‑‑‑Plea raised by defendants was proved to be false whereas statement made on oath by one of the plaintiffs with regard to exchange transaction was fully supported by the documentary evidence on record‑‑‑Courts below having misread evidence on record, concurrent judgments and decrees passed by them were set aside by High Court in exercise of its revisional jurisdiction and suit was decreed.

(c) Oaths Act (X of 1873)‑‑‑

‑‑‑‑S. 4‑‑‑Special oath‑‑‑Person refusing to take special oath would not be presumed to have made a false statement.

Muhammad Aslam Nagi for Petitioners.

Ch. Abdur Rehman‑II for Respondent.

Date of hearing: 2nd February, 2001.

2001 C L C 1497

[Lahore]

Before Ch. Ijaz Ahmad, J

Rana MUHAMMAD SHARIF‑‑‑Petitioner

versus

COMMISSIONER, GUJRANWALA DIVISION, GUJRANWALA and 3 others‑‑‑Respondents

Writ Petition No. 1900 of 1987, heard on 6th February, 2001.

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 4 & 17(4)‑‑‑Punjab Land Acquisition Rules, 1983, R.7‑‑‑Acquisition of land‑‑‑Notification prepared under S.4 of Land Acquisition Act, 1894 was published in official Gazette after more than two years after its preparation and no further progress was made for acquisition of land even after more than one year of publication of said notification‑‑‑Authorities had failed to take further steps within prescribed period of one year‑‑‑Authorities had to exercise powers within the reasonable time in absence of any rule in that respect and reasonable would mean not extreme, arbitrary, capricious or confiscatory and it would depend upon variety of considerations and circumstances‑‑‑Authorities having failed to take action in reasonable time, acquisition proceedings were confiscatory in nature and they should be construed strictly since the owner of the land was deprived compulsorily from his own land‑‑‑Compensation of acquired land must be determined as early as possible in terms of Land Acquisition Act, 1894 and Rules framed thereunder.

Province of Punjab v. Mufti Muhammad Ishaque and others PLD 1984 Lah. 261; Government of Pakistan, Secretary, Works Communication Physical Plannings' case 1996 SCMR 968; Nazar‑ul‑Hassan's case PLD 1990 Lah. 472; Qadrat Ullah and 4 others' case 19$9 CLC 680; Syed Mehboob Alam and others' case 1989 CLC 1801; 1989 CLC 1801; Allah Ditta's case PLD 1997 Lah. 499; State of Madhya Pradesh v. Krishna Prasad Sharma AIR 1966 SC 1593; Rati Lal v. State of Gujarat AIR 1970 SC 984; Muhammad Musthaq Ahmad Khan's case. PLD 1983 Lah. 178; Abdul Rahim's case 1983 CLC 1478; Sardar and others' case 1997 CLC 812; PLD 1983 Lah. 355; PLD 1994 Lah. 3 and Noor‑ud‑Din's case 1997 CLC 1971 ,ref.

M. Abdul Aziz Sheikh for Petitioner.

Ch. Saeed Akhtar, Dy. A.‑G. for Respondents, Date of hearing: 6th February, 2001.

2001 C L C 1509

[Lahore]

Before Maulvi Anwarul Haq, J

SIRAJ MUNIR through Legal Hiers and 3 others‑‑‑Appellants

versus

Rai SARWAR KHAN and 4 others‑‑‑Respondents

Regular Second Appeal No. 173 of 1987, heard on 17th January, 2001.

(a) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑‑S. 41‑‑‑Specific Relief Act (I of 1877), S.27(b)‑‑‑Transfer of property‑‑­Enforcement of contract‑‑‑Unlike the case of purchaser who sought protection of S.41 of Transfer of Property Act, 1882, the burden on a subsequent purchaser under S.27(b) of Specific Relief Act, 1877, was much lighter and ordinarily ,vas discharged by a statement made by such vendee that he had no knowledge of earlier agreement.

(b) Pleadings‑‑‑

‑‑Rule of "secundum allegata et probata", meaning and applicability‑‑‑Plea had to be taken in the pleading before it could be allowed to be proved‑‑­Rule of "secundum allegata et probata" was that in case the plea was not, taken in the pleading the party would not be allowed to lead evidence in support thereof and even if some evidence was allowed, the same would no: be looked into.

Amir Shah v. Ziarat Gul 1998 SCMR 593 .ref.

(c) Evidence‑‑‑

‑‑‑‑Rules of evidence are prima y rules of prudence‑‑‑Fact is stated to have been proved to exist if a prudent person can be said to have believed that the same‑could have existed.

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

‑S. 12‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Suit fog specific performance of agreement‑‑‑Judgment of the Trial Court was supported by evidence as also the pleadings on record and was in line with law declared by the superior judiciary, whereas judgment passed by the Appellate Court was a result of gross misreading of evidence on record and non‑reading of the pleadings of the parties‑‑‑High Court while allowing second appeal set aside judgment of First Appellate Court restoring that of the Trial. Court dismissing the suit.

Mst. Surraya Begum and others v. Mst. Suban Begum and others 1992 SCMR 652; Muhammad Ashraf v. Ali Zaman and others 1992 SCMR 1442: Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Ayub Ali Khan and others v. Brig. Gut Sher Khan 1989 MLD 261 and Malik Muhammad Ishaque and another v. Mirza Almas Ali Beg and others PLD 1969 Lah. 762 ref.

Amjad Pervaiz Malik for Appellants. Ch. Muhammad Anwar Bhinder for Respondents.

Date of hearing: 17th January, 2001.

2001 C L C 1526

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

Qazi MUHAMMAD BUKHSH and 20 others‑‑‑Appellants

versus

GHULAM SARWAR and 13 others‑‑‑Respondents

Regular First Appeal No.98 of 1987, heard on 7th December, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 12 & 27‑‑‑Specific performance of agreement to sell‑‑‑Bona fide purchasers for valuable consideration without notice‑‑‑Failure to enter agreement to sell in Revenue Record‑‑‑Publication in newspaper regarding the agreement in favour of plaintiffs‑‑‑Effect‑‑‑Agreement to sell suit‑land in favour of the plaintiffs was revoked by the vendors and after such revocation the suit‑land was sold to the defendants vide registered sale‑deed‑‑­Contention of the plaintiffs was that publication in newspaper was made regarding the agreement in favour of the plaintiffs and the suit was decreed by Trial Court‑‑‑Validity‑‑‑After entering of the plaintiffs into agreement to sell with the vendors, the Revenue Record pertaining to the suit‑land had remained unaltered and no indication was available in the record regarding the agreement to warn any prospective buyer to remain away from the suit­land during the subsistence of the agreement‑‑‑Publication of notice in newspaper by the plaintiffs, after revocation of the agreement by the vendors, was meant only to scare away any prospective purchaser of the suit­land‑‑‑Defendants had purchased the suit‑land while entertaining honest belief that the earlier agreement between the vendors and the plaintiffs was over and done away with and the suit‑land was available for its purchase by the defendants‑‑‑Where the claim of having entered into the bargain was nothing but bona fide on the part of the defendants had remained unrebutted, the findings of Trial Court were reversed by High Court‑‑‑Judgment and decree passed by Trial Court was set aside and the suit was dismissed.

Mian Ashfaq Ahmad for Appellant No. 1. Ch. Abdul Hakim for Appellants. Zafar Iqbal Khan for Respondents Nos. 1 to 12.

Date of hearing: 7th December, 2000.

2001 C L C 1537

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD HAYAT‑‑‑Petitioner

versus

SETTLEMENT COMMISSIONER (LAND), LAHORE and 9 others‑‑‑Respondents

Writ Petition No.625/R of 1981, heard on 15th February, 2001.

Displaced Persons (Land Settlement) Act (XLVH of 1958)‑‑‑

‑‑‑‑Ss. 10/11‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Pre‑emption‑‑‑Allotment of land, cancellation of‑‑‑Effect on vendee and pre‑emptor of the land‑‑‑Allotment of land in dispute made in favour of allottee thereof was subsequently cancelled on the ground that" claim form submitted by allottee was bogus and fictitious‑‑‑Land, prior to its cancellation, was sold by allottee to different vendees and said sale was successfully pre‑empted by petitioner‑‑‑Allotment of respondent‑allottee having become void and without jurisdiction after cancellation of allotment, sale made in favour of vendees and pre‑emption decree obtained by the petitioner, were of no consequence ‑‑‑Vendees as well as petitioner/pre­empt6r had stepped into the shoes of the allottee and claim of allottee having been cancelled, petitioner was not entitled to retain the property merely on account of being successful pre‑emptor against the sale made by allottee‑‑­Order of cancellation of allotment based on proper appreciation of evidence which was supported by record produced from the Central Record Office, not suffering from any legal infirmity, did not warrant any interference of the High Court in exercise of its Constitutional jurisdiction.

Syed Wajih‑ul‑Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901; Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC (Pak.) 104; Khuda Bakhsh v. Khushi Muhammad PLD 1976 SC 208 and Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 ref.

Malik Amjad Pervaiz for Petitioner.

Rana Muhammad Hanif for the Settlement Department.

Respondents Nos.2 to 10: Ex parte.

Date of hearing: 15th February, 2001.

2001 C L C 1544

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD YOUSAF and others‑‑‑Petitioners

Versus

GOVERNMENT OF PAKISTAN and others‑‑‑Respondents

Writ Petitions Nos. 10206, 10214, 9315, 9316, 9317 10207, 10226 of 1998, 13621, 13622, 13623, 13624, 13625, 13626, 17098 of 1999, 24552, 24553, 24712 and 23039 of 2000, decided on 15th December, 2000.

(a) National Accountability Bureau Ordinance (XXIV of 2000)‑‑‑

‑‑‑‑Ss. 9 & 22‑‑‑Public administration‑‑‑Corruption and corrupt practices‑‑­Responsibilities of the State‑‑‑One of the essential responsibilities of the State/Government is to protect its citizens against fraud and illegal practices moreso when its name has also been used in the commission of a public wrong‑‑‑Rampant corruption and corrupt practices having eroded the confidence of the people in the Government and have widened the credibility gap between the people and the State, State could not exist without having a patent credibility.

(b) National Accountability Bureau Ordinance (XXIV of 2000)‑‑

‑‑‑‑Ss. 9 & 22‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Corruption and corrupt practices, investigation of ‑‑‑Awami Tractor Scheme‑‑‑Failure to provide tractors to the petitioners despite the receipt of payments from them‑‑‑Government functionaries were involved in the imports of the tractors for such fraud committed against the petitioners‑‑­ Effect‑‑‑High Court sent the matter to the Chairman, National Accountability Bureau for investigation and proceedings in accordance with law‑‑‑High Court directed the Chairman of the National Accountability Bureau that he might take the help of provincial police for investigation‑‑­ National Accountability Bureau' was directed to provide relief to the petitioners through return of their money with reasonable mark‑up or in the alternate the delivery of tractors for which the petitioners had paid money individually‑‑‑Constitutional petition was disposed of accordingly.

Naeem‑ul‑Hassan Sherazi and Aziz Ahmad Malik for Petitioners.

Muhammad Iqbal Abid, Rana Ijaz Ahmad Khan and Sardar Muhammad Anwaar Ahmad Khan for Respondents.

2001 C L C 1589

[Lahore]

Before Ch. Ijaz Ahmad, J

NEW GARDEN TOWN WELFARE SOCIETY (REGISTERED) through President‑‑‑Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY and 2 others‑‑‑Respondents

Writ Petition No.5495 of 1988, heard on 7th February, 2001.

(a) Lahore Development Authority Act (XXX of 1975)‑‑‑

‑‑‑‑Ss. 14, 38 & 48‑‑‑Lahore Development Authority (Building Control) Regulation, 1984, Reglns. 17 & 96(4)‑‑‑Town Improvement Trust Act (IV of 1922), Ss. 13, 14 & 48‑‑‑Constitution of Pakistan (1973), Art.199‑­fonstitutional petition‑‑‑Allocation of plots‑‑‑Plots earmarked for allotment /n petitioner, a Welfare Society, were allotted by Authority to the respondents without providing the petitioner‑Society an opportunity of being hoard and without inviting objections‑‑‑By virtue of S.48 of Lahore Development Authority Act, 1975, provisions of old Act, viz. Lahore Improvement Trust Act, 1922 were applicable unless and until same were inconsistent with the provisions of Act of 1975‑‑‑Provisions of Ss. 13 & 14 of Lahore Improvement Trust Act, 1922 had cast duty upon Authority to invite objections for the purpose of change in the Scheme‑‑‑Plots in dispute were reserved for specific purpose for welfare centre under Scheme and once the Scheme was acted upon Authority could only change the same under law which had provided to invite the objections and provide opportunity to be heard to the affected party as the vested rights had accrued to the residents‑‑­Authority, in circumstances, had no authority under the law to change the Scheme in derogation of law without inviting objections and without providing personal hearing to the petitioner‑Society.

Ahmed Javed Shah's case 1996 CLC 748; Lahore Grammar School Pvt. Ltd.'s case PLD 1996 Lah. 442; Muhammad Iqbal and another's case 1995 CLC 1881; Mst. Shamim Rizwan's case PLD 1997 Lah. 580; Aerdeshik Kavasgee's case PLD 1993 Kar. 237; Writ Petition No.4758 of 1990 (unreported); Massi Ullah Khan and 3 others' case 1994 MLD 603; Muhammad Sharif and others' case 1989 MLD 95; Messrs Farid Sons Ltd.'s. case PLD 1961 SC 537; Sh. Ahmed's case 1984 CLC 3304; Fazal Din's case PLD 1969 SC 223; Muhammad Nawaz's case 1992 SCMR 1420; PLD 1969 SC 223; Kanwal Nain's case PLD 1983 SC 53; Ch. Muhammad Salim's case 1997 SCMR 315; Muhammad Sharif's case 1989 MLD 95; Abdul Razzaq's case PLD 1994 SC 512 and Ardeshir Cowasjee's case 1999 SCMR 2883 ref.

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

‑‑‑O. I, R. 3‑‑‑Constitution of Pakistan (1973, Art. 199‑Constitutional petition, maintainability of‑‑‑Petitions were objected to on the ground that same were filed in representative capacity without adopting proper procedure as prescribed under 0.1, R.3, C.P.C.‑‑‑Petitioner‑Society being resident of the same locality, had locus standi to file petitions.

Ardeshir Cowasjee's case 1999 SCMR 2883 and Fazal Din's case PLD 1969 SC 223 ref.

(c) Administration of justice‑‑‑

‑‑‑‑ When a thing is to be done in a particular manner, it must be done in that way and not otherwise.

(d) Administration of justice‑‑‑

‑‑‑‑ When the basic order was without lawful authority then the superstructure (built on it) would fall on the ground automatically.

Crescent Sugar Mill's case PLD 1982 Lah.1 and Yousaf Ali's case PLD 1958 SC 104 ref.

Zahid Hamid and Fayyaz H. Qadri for Petitioner.

S.M. Baqir, Rashid Ahmad and Atif Amin for Respondents.

Date of hearing: 7th February, 2001.

2001 C L C 1608

[Lahore]

Before M. Javed Buttar, NOOR SHAH through Legal Heirs and 21 others‑‑ ‑Petitioners

versus

ADDITIONAL COMMISSIONER (REVENUE), RAWALPINDI/THE SETTLEMENT COMMISSIONER (LAND), RAWALPINDI and 20 others‑‑‑Respondents

Writ Petitions Nos.9/R and 39/R of 1986, heard on 1st March, 2001.

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.3‑‑‑Constitution of Pakistan (1973), Art.199‑‑constitutional petition‑‑‑Evacuee property ‑‑‑Mukhbari of illegal allotment‑‑­Investigation‑‑‑Failure to join necessary parties‑‑‑Disputed property was transferred in the names of the petitioners (pre‑emptors) as a result of decrees passed in their favour in pre‑emption suits‑‑‑Vendors were the allottees of the property against their verified claims‑‑‑Notified Officer on Mukhbari application had cancelled the allotment having found the same to be illegal‑‑­Petitioners/pre‑emptors were not made party to the investigation proceedings and the order of cancellation was passed at their back ‑‑‑Validity‑‑‑Pre­emption decrees were executed, transfer mutations on the basis of the decrees were attested m favour of the petitioners/pre‑emptors by Revenue Authorities and the transfers were incorporated in the Revenue Record‑‑‑Valuable rights, thus. had been created in favour of the petitioners/pre‑emptors‑‑‑Where the. petitioners/pre‑emptors were not afforded opportunity of being heard and inquiries and investigations were conducted at their back, orders passed by Settlement Authorities were violative of the principle of natural justice of audi alteram partem‑‑‑Petitioners/pre‑emptors were necessary parties and the order of cancellation of allotment of the disputed property passed in their absence was ab initio void and suffered from basic illegality‑‑­Such orders were set aside and the case was remanded to the Authorities for decision afresh‑‑‑Constitutional petition was allowed accordingly.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.3‑‑‑Informer‑‑‑Benefit, extent of ‑‑‑Informer after repeal of the Settlement Laws could get benefit only to the extent of his unsatisfied pending claim which had been resumed on the basis of information given by him‑‑‑Such was the benefit which could be extended to the informer under the provisions of Displaced Persons (Land Settlement) Act, 1958, at the time when the same was repealed, informer could not askfor any more benefit in circumstances.

(c) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.3(1), first proviso ‑‑‑Mukhbari‑‑‑Cancellation of allotment‑‑‑Procedure‑‑‑Allotment of the resumed land to informer‑‑­Occupants, entitlement of‑‑‑Scope‑‑‑Where inquiry revealed that the informer had no unsatisfied verified claim, in such case the Settlement Authorities cancelling the allotment under Ss.10 & 11 of Displaced Persons (Land Settlement) Act, 1958, were bound to conduct inquiry in regard to the rights of the occupants as envisaged in first proviso to S.3(1) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975‑‑‑Occupants of such resumed lands who had occupied the same continuously for four harvests immediately preceding "Khareef" year 1973, were entitled to the first right of purchase as against the rest of the world at the prescribed rates.

(d) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.3‑‑‑Cancellation of allotment‑‑‑Entitlement Certificate‑‑‑Failure to produce original of the Entitlement Certificate‑‑­Effect‑‑‑Where the order passed by the Authorities was based on photostat COPY of the Certificate of allotment, Settlement Authorities while cancelling the allotment had to check up the record thoroughly.

(e) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.3‑‑‑Informer associating other persons having unsatisfied claims‑‑‑Effect‑‑‑Practice that after repeal of the Settlement Laws the informers had started associating other persons also with them who were originally not the informers deprecated being illegal‑‑‑Such association was done merely because those persons had unsatisfied pending claims whereas the informers either did not have any unsatisfied pending claim or their unsatisfied pending claim was not to the extent of the lands likely to be resumed because of the information supplied by them‑‑‑Any other‑ person associated by the informer after the repeal of the Settlement Laws could not get any benefit because of such an association as the claim of the informer could not be termed as a pending case or a pending proceeding on 30‑6‑1974 within the meaning of S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.

(f) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑ Ss. 10 & I1‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.3‑‑‑Informer acting as general attorney of other persons having unsatisfied claims‑‑‑Allotment of resumed land in such cases‑‑‑Guidelines‑‑‑Informer or attorney, determination of ‑‑‑Where informers had obtained special/general power of attorney from the claimants whose claims had not been satisfied and had posed to be acting on behalf of such claimants for securing allotment such practice of the informers was totally illegal‑‑‑To determine whether any person was an informer or not, the Notified Officer was under a duty to peruse and scrutinize the original record of application cider Ss. 10 & 11 of Displaced Persons (Land Settlement) Act, 1958, and the Notified Officer had to see whether the application was moved by the informer in his own capacity or in his capacity as general attorney or special attorney of other persons and the deeds of general power of attorney and special power of attorney should also be checked.

Bashir Ahmad Ansari for Petitioners. Syed Aftab Ahmad for Respondent No‑4.

Date of hearing: 1st March, 2001.

2001 C L C 1625

[Lahore]

Before Tassaduq Hussain Jilani, J

ZAMAN CEMENT‑‑Petitioner

versus

CENTRAL BOARD OF REVENUE and others‑‑‑Respondents

Writ Petition No. 16071 of 1996, decided on 9th January, 1997.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 19 & 31‑A‑‑‑Sales Tax Act (Ill of 1951), S.13‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Notification No.S.R.O. 484(1)/92, dated 14‑5­ 1992‑‑‑Constitutional petition‑‑‑Levy of Customs Duty ‑‑‑Exemption‑‑­ Federal Government under provisions of S.19 of Customs Act, 1969 and S.13(1) of Sales Tax Act, 1990, had the power to levy the Customs Duty as also the power to exempt any imported goods from the‑levy of the duty subject to conditions specified therein ‑‑‑Exemption was granted under Notification on goods subject to conditions that same were imported "during the period commencing on 1st December, 1990 and ending on 30th June, "‑‑‑Importers seeking exemption, had not imported goods during the period as Letter of Credit was issued in November, 1995 and the Bill of Lading was dated 29th August, 1996‑‑‑Importer, in circumstances, could not claim exemption on the basis of said notification‑‑‑Contention that on the basis of principle of legitimate expectation the exemption once granted could not be rescinded as the contract for the import was executed during the currency of the exemption period, was repelled for the reasons firstly that the notification on the basis of which the importer was claiming exemption, itself had stipulated that concession would be available only to those goods which were imported during the period specified therein and secondly that S.31‑A of Customs Act had clearly laid down that the amount of duty was payable irrespective of the fact whether the withdrawal took place before or after the creation of a contract for the sale of goods or opening of a Letter of Credit.

Al‑Samrez Enterprises v. The Federation of Pakistan 1986 SCMR 1917; Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCMR 1905 and Flying Board v. C.B.R. Writ Petition No. 17231 of 1995 ref.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 18(1)(2)‑‑‑Levy of customs duty‑‑‑Levy and chargeability of Customs Duty had nexus with the day on which the goods were to be imported.

The Lahore Textile and General Mills Limited v. The Collector of Customs, Lahore and 2 others PLD 1988 Lah. 563 and East and West Steamship Company v. The Collector of Customs PLD 1976 SC 618 ref.

Irfan Qadir for Petitioner.

Izhar‑ul‑Haq Sheikh for Respondents.

Dates of hearing: 11th and 12th November, 1997.

2001 C L C 1631

[Lahore]

Before Ch. Ijaz Ahmad, J

MUSHTAQ ARMAD‑‑‑Petitioner

versus

UNIVERSITY OF THE PUNJAB through Vice‑Chancellor, Lahore and another‑‑‑Respondents

Writ Petition No.2608 of 2000, heard on 26th March, 2001.

(a) Educational institution‑‑‑

‑‑‑‑ Using ' unfair means in examination‑‑‑Respondent‑Authorities after verification, without hearing the petitioner declared that B.A. Degree issued to the petitioner/candidate was false and bogus‑‑‑Petitioner who had never appeared in examination, had inserted his name in place of real candidate by committing fraud and misrepresentation‑‑‑Petitioner who simply alleged mala fides against respondent‑Authorities, could not allege any enmity against the Authorities‑‑‑General allegations of mala fides were not sustainable in the eye of law, in circumstances‑‑‑Obligation to ‑offer an opportunity of being heard to the petitioner would not arise as Authorities had simply sought to correct mistake to cancel an earlier declaration whereby petitioner was shown to have passed the examination which was wrong‑‑‑Lapse of time would not sanctify the action based on fraud and misrepresentation committed by the petitioner‑‑‑Petitioner who did not approach High Court with clean hands, had failed to point out that action of Authorities was in violation of relevant rules and regulations‑‑‑Discretion of High Court under Art.199 of the Constitution, therefore, could not be exercised in favour of petitioner‑‑‑Constitutional petition was dismissed in circumstances.

Dil Bahadur Khan's case 1999 PLC (C.S.) 1464; Ms. Aneesa Rehman's case 1994 SCMR 2232; Fouzia Ahmad's case 1999 PLC (C.S.) 1194; Muhammad Malook's case 1999 PLC (C.S.) 1391; Mansab Ali's case PLD 1971 SC 124; Saeed Nawaz's case .PLD 1981 Lah. 371; Sureshi v. Berhampur University AIR 1987 Orissa 38; UPJADAC v. Nandwani (1990) 4 SCC 633; Saeed Ahmad Khan's case PLD 1974 SC 151; Akhtar Ali's case 1979 SCMR 549; Haider Ali's case 1999 YLR 1243; Suleman Riaz v. B.I.S.E. 1999 YLR 1229; Amjad Yasin's case 1999 SCMR 2640; Farrukh­ud‑Din's case PLD 2000 Kar. 154; Jalal‑ud‑Din's case PLD 1992 SC 207; Rehat Siddiqui's case PLD 1975 Lah. 257; 1977 SCMR 213; Samar Pervaiz's case PLD 1971 SC 838 and Ali Mir's case 1984 SCMR 433 ref.

(b) Administration of justice‑‑‑

‑‑‑‑Principle‑‑‑He who seeks equity must come with clean hands.

Abdur Rashid's case 1969 SCMR 141; Ghulam Mustafa's case 1983 SCMR 196; Nawab Syed Raunaq Ali's case PLD 1973 SC 236 and G.M. Malik's case 1990 CLC 1783 ref.

Nazir A. Qureshi for Petitioner. Sh. M. Saleem, Legal Adviser for Respondent.

Date of hearing: 26th March, 2001.

2001 C L C 1636

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD MUSHTAQ‑‑‑Petitioner

versus

MUKHTAR AHMAD and 2 others‑‑‑Respondents

Civil Revision No.918 of 1989, decided on 8th February, 2001.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVM of 1958)‑‑‑

‑‑‑‑Sched., Part I‑‑‑Agreement of association‑‑‑Non‑appearance of auction­ purchaser before Settlement Authority‑‑‑Effect‑‑‑Where the auction‑purchaser had denied his signatures on the agreement, mere submission of agreement of association did not confer any right on the person submitting the

Mst. Sabira Begum and others v. Fazal Din and others 1982 SCMR 437 and Mst. Hafizan Begum and ,6 others v. Deputy Settlement Commissioner, Lahore and 2 others PLD 1974 Note 17 at p.51 ref.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑Sched., Part I‑‑‑Agreement of association‑‑‑Failure to record statements of parties by Settlement Authority‑‑‑Permanent Transfer Deed was issued on the basis of agreement of association without verification of genuineness supported by statements of executants‑‑‑Validity‑‑‑Permanent Transfer Deed was void ab initio in circumstances.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of facts by the Courts below‑‑­Interference by High Court‑‑‑Scope‑‑‑Where evidence of parties was critically examined by both the Courts below and the findings were based on proper appreciation of available evidence, High Court refused to interfere under its revisional jurisdiction.

(d) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑Sched. Part I‑‑‑Agreement of association‑‑‑Forged document Incorporation of name in Permanent Transfer Deed on the basis of the agreement‑‑‑Predecessor‑in‑interest of the plaintiffs did not execute the agreement of association but the predecessor‑in‑interest of the defendants got his name incorporated in the Permanent Transfer Deed in collusion with Settlement Functionaries‑‑‑Ownership of the defendants in the suit‑property was assailed in a civil suit‑‑‑Both the Courts below decided the matter in favour of the plaintiffs‑‑‑Validity‑‑‑Where deed of association itself had no legal consequences, both the Courts were justified in decreeing the suit‑‑­Judgments and decrees passed by the Courts below were not interfered with in circumstances.

Syed Wajih‑ul‑Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901; Khuda Bakhsh v. Khushi Muhatpmad and 3 others PLD 1976 SC 208; Dr. Zahir Ansari and others v. Karachi Development Authority and others PLD 2000 Kar. 168 and Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 ref.

Khaliq Ahmad Ansari for Petitioner.

Sh. Naveed Shehryar for Respondent.

Dates of hearing: 7th and 8th February, 2001.

2001 C L C 1641

[Lahore]

Before Ch. Ijaz Ahmad; J

SAKHA ULLAH‑‑‑Appellant

versus

Mst. TAHIR ALMAS alias TAHIRA SHABBIR and another‑‑‑Respondents

Second Appeal from Order No. 167 of 1999, heard on 30th March, 2001.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 15‑‑‑Second appeal‑‑‑Scope‑‑‑Interference‑‑‑Condition‑‑‑Appellate Authority had passed order after proper appreciation of evidence‑‑‑High Court could not interfere in finding of fact arrived at by the Appellate Authority in second appeal unless and until the Authority had misread or non‑read the record.

Nazir Ahmad's case NLR 1980 SCJ 54 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(3)(a)(ii)‑‑‑Bona fide personal need of landlord‑‑‑Even the sole testimony of the landlord was sufficient to establish his personal bona fide requirement.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 132 & 133‑‑‑Specific assertion made by the witness ‑‑‑Credibility‑‑­If a specific assertion material to the controversy of the case made by the witness was not challenged in cross‑examination by putting contrary suggestions, then same was to be given full credit and accepted as true unless rebutted by reliable, cogent and clear evidence.

Noor Jehan Begum's case 1991 SCMR 2300; Luqman's case 1985 CLC 2327; Abdul Ghafoor v. Abdul Qadir 1986 MLD 1636; Qamar‑ud­Din's case 1988 SCMR 819; S.M. Noor‑ud‑Din's case 1998 SCMR 2119; Jehangir Rustam Kaka's case 1992 SCMR 1296; Hassan Khan v. Ms. Munawar Begum PLD 1976 Kar. 832 and Mst. Taheed Khanam v. Muhammad Shamshad 1980 SCMR 593 ref.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(3)(a)(ii)‑‑‑Bona fide personal need of landlord‑‑‑Proof‑‑‑Assertion or claim of landlord if consistent with his averments in his application and not shaken in the cross‑examination or disproved in rebuttal, was sufficient to prove that need of landlord was bona fide‑‑‑Landlord had to establish his bona fide need and assign reasons for such need‑‑‑If need of the landlord was mentioned in the application and duly established through evidence for which the landlord must enter in the witness‑box and depose on oath about the personal bona fide need and assign reasons for such need, the Court would normally not question such need.

Gulla Jan v. Ghulam Habib and others 1993 CLC 1149; Syed Anisur Rehman v. Mst. Saira Bi PLD 1985 Kar. 714; Muhammad Saleem Khan v. Zameer Ahmad Khokhar 1997 CLC 1531; Sardar Nabil Wali v. The Additional District Judge/Appellate Authority, Sahiwal PLD 2000 SC 829; Muhammad Shafique v. Shahid Naveed and 5 others 1999 CLC 1273; Dilshad Khan v. Zahid Masood and 6 others 1994 CLC 531; Adam Jee v. Haji Ghulam Ali 1986 CLC 2376; Mst. Hajiyani Ayesha Bai v. Zahid Hussain 1999 MLD 2761; Messrs F.K. Irani & Company v. Begum Feroz 1996 SCMR 1178; Malik Muhammad Ramzan v. Messrs General Iron Stores and another 1995 SCMR 1125; Sh. Muhammad Jamil v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others 1998 MLD 1049; Sajjad Ahmad v. Muhammad Younas 1994 MLD 1244; United Bank Ltd. and another v. Abdul Wahab Khan 1983 CLC 824; Sardar Khan v. Riaz Ahmad and another 1986 SCMR 1981; Qamar‑ud‑Din through his Legal Heirs v. Hakim Mehmood Khan 1988 SCMR 819; National Development Finance Corporation's case PLD 1997 SC 564 and Sardar Khan's case 1986 SCMR 1981 ref. .

(e) Administration of justice‑‑­

‑‑‑‑ Each and every case was to be decided on its peculiar circumstances and facts.

M.A. Gauhar for Appellant.

Alamgir for Respondents.

Date of hearing: 30th March, 2001.

2001 C L C 1650

[Lahore]

Before Maulvi Anrvarul Haq, J

BASHIR and 2 others‑‑‑Petitioners

versus

NOOR HASSAN and 2 others‑‑‑Respondents

Civil Revision No.1349/D of 1990 and Writ Petition No.3898 of 1991, heard on 29th January, 2001.

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

‑‑‑‑S. 42‑‑‑Transfer of Property Act (IV of 1882), S.122‑‑‑Contract Act (IX of 1872), S.25‑‑‑Suit for declaration‑‑‑Gift, validity of‑‑‑Plaintiffs had alleged that they had never made gift of suit‑land in favour of the defendants and that mutation of gift allegedly attested and further sale of the suit‑land by defendants by means of sale‑deed, were bogus and illegal‑‑‑ ‑Defendants had claimed that plaintiffs were their "Murids" and defendants had been friends in need of the plaintiffs and out of gratitude the plaintiffs had gifted away the suit‑land to the defendants‑‑‑Copy of mutation of gift was alleged to have been entered by Patwari on the statement of one of the plaintiffs, but neither there was any reference to any report in Roznamcha Waqiati nor any report was mentioned in the mutation‑‑‑Possession of suit‑land was still with the plaintiffs and was never delivered to the defendants ‑‑‑Patwari and original mutation were not produced and Chairman who alleged to have identified the plaintiffs before Revenue Officer had also not been produced‑‑‑Except the self‑serving statement of one of the defendants, no evidence was on record to the effect that plaintiffs were "Murids" of defendants and that plaintiffs had gifted away suit‑land to defendants out of gratitude‑‑‑One of the plaintiffs had entered the witness‑box but no suggestion was put to him that plaintiffs were "Murids" of defendants nor that they had appeared before the Revenue Officer at the time of attestation of mutation‑‑‑Gift though was a gratuitous transaction, but under S.25, Contract Act, 1872 it had to be for love and affection which were missing in the case‑‑‑Trial Court had rightly decreed the suit and Appellate Court below was not justified to set aside the decree passed by Trial Court.

Muhammad and others v. Sardul PLD 1965 Lah. 472; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Ashiq Hussain v. Nisar Ali and others 1969 SCMR 341 and Ghulam Ali and 2 others v: Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 72 & 114‑‑‑Estoppel‑‑‑Documentary evidence‑‑‑Witness of a document could not be attributed with the knowledge of the contents thereof‑‑‑No concept of estoppel by attestation.

Sardar Roshan Ali Sindhu for Petitioners.

Kh. Haris Ahmad for Respondents.

Date of hearing: 29th January, 2001.

2001 C L C 1655

[Lahore]

Before Ch. Ijaz Ahmad, J

TAHIR MEHMOOD‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN through, Secretary, Ministry of Finance, Islamabad

and 2 others‑‑‑Respondents

Writ Petition No.3491 of 2001, heard on 13th March, 2001.

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

‑‑‑‑Arts. 199 & 203‑G‑‑‑Constitutional petition‑‑‑Repayment of loan‑‑­Charge of interest/mark‑up‑‑‑Petitioner who had secured loan by executing agreement, had claimed that he had paid almost all t1fe principal amount and the remaining amount claimed by the respondents was "interest" which had already been declared to be un‑Islamic by the superior Courts ‑‑‑Validity‑‑­Petitioner and respondents had executed agreement of their own sweet‑will and petitioner sought enforcement of contract through Constitutional petition, which was not permissible and High Court in view of Art.203‑G of Constitution of Pakistan (1973) had no authority to determine the charge of interest as un‑Islamic‑‑‑Interest/Ribs, no doubt was un‑Islamic, but past and closed transactions were not to be re‑opened.

Mehmood‑ur‑Rehman's case PLD 1992 FSC 1; Dr. Muhammad Aslam Khaki's case PLD 2000 SC 225; Mumtaz Masood's case 1994 SCMR 228 and Chand Pur Mills Ltd.'s case PLD 1958 SC 267 ref.

(b) Judgment‑‑‑

‑‑‑‑ Admission order or leave granting order was not a judgment.

Mirza Adam Khan's case PLD 1975 SC 9 ref.

(c) House Building Finance Corporation Act (XVIII of 1952)

‑‑‑Ss. 24, 26 & 30‑‑‑Constitution of Pakistan (1973); Art.199‑‑­ Constitutional petition‑‑‑Maintainability‑‑‑Petitioner having alternative remedies under the provisions of House Building Finance Corporation Act, 1952 to approach the Authorities for redressal of his grievance or to file the suit against them, Constitutional petition was not maintainable.

Muhammad Ismael's case PLD 1996 SC 246 ref.

Abid Saqi for Petitioner.

2001 C L C 1658

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL SHAKKOOR‑‑‑Petitioner

versus

AHMAD ALI ‑‑‑Respondent

Civil Revision No.283 of 1990, heard on 21st March, 2001.

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

‑‑‑‑S. 8‑‑‑Suit for possession‑‑‑Plaintiff by producing evidence on record had proved that he had acquired property in dispute through exchange from its original owner and factum of said exchange was nor denied by the defendant‑‑‑Defendant neither could prove his alleged adverse possession over the suit‑land nor the oral sale by its original owner in his favour‑‑­Plaintiff, who had proved his title in respect of suit‑property, was entitled to possession of the property‑‑‑Defendant, who had claimed adverse possession could not be allowed to approbate and reprobate by pleading a valid title in respect of suit‑property on the one hand and pleading the adverse possession at the same time on the other hand‑‑‑Judgment and decree passed by Appellate Court below in favour of plaintiff could not be interfered with by High Court in exercise of its revisional jurisdiction.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑Arts. 72, 74 & 76‑‑‑Documentary evidence‑‑‑Admissibility in evidence‑‑­Registered document‑‑‑Where the execution of a registered document was not disputed by any one, its certified copy was admissible in evidence.

Syed Zafar Ali Shah for Petitioner.

Muhammad Zaheer for Respondent.

Dates of hearing: 25th January and 21st March, 2001.

2001 C L C 1661

[Lahore]

Before Ch. Ijaz Ahmad, J

Agha MUHAMMAD MEHDI and 5 others‑‑‑Petitioners

versus

MEMBER (COLONIES), BOARD OF REVENUE PUNJAB, LAHORE and 2 others‑‑‑Respondents

Writ Petition No.3586 of 1984, heard on 23rd February, 2001.

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

‑‑‑‑Ss. 161, 163 & 164‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Appeal by petitioners against order of Collector was dismissed by Additional Commissioner‑‑­Revision against order passed by Additional Commissioner and review petition there against were dismissed by Member, Board of Revenue‑‑‑Appeal as well as revision by petitioners were dismissed on merits and being time­barred‑‑‑Petitioners neither had filed application for condonation of delay, nor could bring on record any cogent reason for condonation of delay‑‑­Authorities below, in circumstances, were justified to dismiss appeal revision and review by the petitioners‑‑‑Concurrent finding of fact of Tribunals below based on evidence on record, could not be interfered with in Constitutional jurisdiction of High Court.

Atta Ullah Malik's case PLD 1964 SC 236; Nawabzada Ronaq Ali's case PLD 1973 SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462 and Khudah Bakhsh's case 1974 SCMR 279. ref.

(b) Administration of justice‑‑‑

‑‑‑‑ He who wanted to seek equity must come with clean hands and nobody could be allowed to get the benefit of his own misdeeds.

Nawabzada Ronaq Ali's case PLD 1973 .SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462; Khudah Bakhsh's case 1974 SCMR 279 and G.M. Malik's case 1990 CLC 1783 ref.

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

‑‑‑‑Art. 199‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss. 161, 163 & 164‑‑‑Civil Procedure Code (V of 1908), O.1, R.9‑‑‑Constitutional petition‑‑‑Necessary party ‑‑‑Non‑impleading of‑‑‑Maintainability of petition‑‑‑Parties in whose favour vested rights had accrued having not been impleaded as respondents in the proceedings, Constitutional petition was liable to be dismissed.

Rehmat Ali's case 1993 SCMR 168 and M. Rameez‑ul‑Haq's case PLD 1992 SC 221 ref.

Ch. M. Abdullah for Petitioner. Ch. Nisar Ahmad Dhiloon for Respondents Nos.6 to 10.

Date of hearing; 23rd February, 2001.

2001 C L C 1667

[Lahore]

Before Malik Muhammad Qayyum, J

Messrs AYESHA TEXTILE MILLS LIMITED, LAHORE‑‑‑Petitioner

versus

GOVERNMENT OF PAKISTAN, CENTRAL BOARD OF REVENUE and 4 others‑‑‑Respondents

Writ Petition No.6612 of 1988, decided on 12th April, 2001.

Customs Act (IV of 1969)‑‑‑

‑‑‑S. 19‑‑‑Notification S.R.O. 500(1)/84, dated 14‑6‑1984‑‑‑Notification S.R.0.512(I)/86, dated 29‑5‑1986‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Customs duty, exemption from‑‑‑Refusal to grant exemption‑‑‑Justification‑‑‑Both the Notifications granting exemption from customs duty were in field and were operative‑‑‑Exemption available under the Notification S.R.O.‑500(1)/84, dated 14‑6‑1984, was intact and the Notification S.R.O.‑512(1)/86, dated 29‑5986, did not rescind the exemption granted vide earlier Notification‑‑‑Effect‑‑‑Held, there was no bar under any law which barred the importer from claiming benefit under both the Notifications so long as both held the field‑‑‑Petitioner could validly claim benefit of both the Notifications‑‑‑Order passed by Central Board of Revenue whereby exemption was not allowed to the petitioner was without lawful authority and of no legal effect‑‑‑Constitutional petition was allowed accordingly.

M. Nasar Ahmad for Petitioner.

Nemo for Respondents.

Date of hearing: 12th April, 2001.

2001 C L C 1669

[Lahore]

Before Maulvi Anwarul Haq, J

Rana ASGHAR HUSSAIN alias Rana ASGHAR ALI ‑‑‑ Petitioner

versus

SHER MUHAMMAD and 5 others‑‑‑Respondents

Civil Revisions Nos.431 of 1996 and 738 of 1997, heard on 11th December, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for specific performance of contract‑‑‑Execution of agreement arrived at between the patties had fully been proved by plaintiff by producing oral as well as documentary evidence on record‑‑‑Trial Court on the basis of evidence on record decreed the suit, but Appellate Court reversed the judgment and decree of Trial Court and dismissed the suit‑‑‑Judgment of Appellate Court suffered from misreading as well as failure on its part to read the evidence on record‑‑‑High Court, in exercise of its revisional jurisdiction, set aside judgment and decree passed by Appellate Court and restored that of trial Court.

Mrs. Nasira Iqbal for Petitioner. Ch. Mushtaq Ahmad Khan for Respondents.

Date of hearing: 11th December, 2000.

2001 C L C 1673

[Lahore]

Before Dr. Munir Ahmad Mughal, J

ABDUL SALAM through Legal Heirs and 3 others‑‑‑Petitioners

versus

DISTRICT COLLECTOR, MUZAFFARGARH and. 4 others‑‑‑Respondents

Writ Petition No.868 of 1998, heard on 10th April, 2001.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑Ss. 10 & 13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Consolidation Scheme‑‑‑Failure to give notice to the landowners‑‑­Land of the petitioners was not entered in Register Haqdaran Zamin after the approval of the scheme‑‑‑Revenue Authorities refused to make the correction of the Revenue Record‑‑‑Validity‑‑‑Valuable rights had accrued to the petitioners which could not be undone without notice to them which was against the principle of natural justice‑‑‑High Court directed the Authorities to decide the matter after hearing the parties‑‑‑Constitutional petition was allowed accordingly.

Mian Fazal Rauf Joya for Petitioners.

Nemo for Respondents Nos.1, 2 and 3.

Respondent No.4 in person.

Date of hearing: 10th April, 2001.

2001 C L C 1676

[Lahore]

Before Maulvi Anwarul Haq, J .

Mst. ZANEB BIBI‑‑‑Petitioner

versus

ABDUL RASHID and another‑‑‑Respondents

Civil Revision No. 1635/1) of 1984, heard on 1st February, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 8 & 42‑‑‑Transfer of. Property Act (IV of 1882), Ss.122 & 123‑‑­Gift‑‑‑Validity‑‑‑Suit for possession and declaration‑‑‑Plaintiff had sought declaration to the effect that mutation of gift of her property allegedly sanctioned in favour of defendants, was illegal, collusive, ultra vires, void and ineffective against her interests‑‑‑Defendants had claimed that plaintiff who was their sister, had gifted away disputed property to them through validly sanctioned mutation‑‑‑Evidence led by defendants to prove valid gift in their favour was discrepant and they had not come out with any reason as to why plaintiff had made gift to them when she had her own children and she was under no obligation whatsoever to the defendants‑‑‑Plaintiff was living with her husband in her house and the defendants had not even alleged arty service having been rendered by them to the plaintiff and it had not come )n record that plaintiff had so much love and affection for the defendants that she would gift away her property depriving her own children‑‑‑Trial Court decreed the suit after appreciation of evidence on record, but Appellate Court set aside the judgment and decree passed by Trial Court‑‑‑Appellate Court had acted with material irregularity in the exercise of its jurisdiction while setting aside the judgment and decree of the Trial Court in face of the pleadings, evidence and the attending circumstances of the case‑‑‑Judgment and decree passed by Appellate Court were set aside by High Court in exercise of its revisional jurisdiction and those of Trial Court were restored.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

Ch. Muhammad Abdul Salim for Petitioner. Hasnat Ahmad Khan for Respondents.

Date of hearing: 1st February, 2001.

2001 C L C 1680

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs SYED CATERERS‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN through Chairman, Pakistan Railways, Islamabad and 3 others‑‑‑Respondents

Writ Petitions Nos.2039 and 1090 of 2001, decided on 29th March, 2001.

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

‑‑‑‑Arts. 4, 25 & 199‑‑‑Constitutional petition‑‑‑Allegation of discrimination‑‑‑Authorities directed the petitioner and other contractors to ensure that the products of a certain manufacturer only were to be sold in the Dining Car‑‑‑Petitioner in his Constitutional petition challenged the vires of the orders of the Authorities on ground of discrimination‑‑‑Authorities as a policy matter passed order not only for the petitioner, but for all the contractors who were nine in number and al[ other contractors except petitioner, had accepted the instructions by Authorities‑‑‑Question of discrimination, in circumstances, would not arise‑‑‑Policy matter was accepted by other eight contractors, which was determined with reference to the domestic need, their priorities and multitudes of other factors of which the Authorities were the sole arbiter in exercise of their executive authority‑‑­High Court declined interference in circumstances.

Shaukat Ali's case PLD 1997 SC 342 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Constitution being based on trichotomy of power High Court had power only to interpret the law and had no jurisdiction to take the role of policy‑maker‑‑‑Petitioner, otherwise having not approached the Court immediately, Constitutional petition was liable to be dismissed on principle of laches.

Zia‑ur‑Rehman's case PLD 1973 SC 49; Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473; Zameer Ahmad Khan's case PLD 1975 SC 66; 1978 SCMR 327; Haji Saif Ullah's case PLD 1989 SC 166 and Khiali Khan's case PLD 1997 SC 304 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑High Court had ample power to set aside the order which was passed mala fide by the Authorities.

Shaukat Ali's case PLD 1997 SC 342 and Messrs Airport Support Services' case 1998 SCMR 2268 ref.

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

‑‑‑‑Arts. 4 & 5‑‑‑Obligation of public functionaries‑‑‑Duty and obligation of the public functionaries to act in accordance with law without fear, favour and nepotism‑‑‑Constitution was a commitment of the nation and it was the duty of each and every citizen including the public functionaries to discharge the duty in obedience to Constitution and law by virtue of Art. 5(2) of the Constitution of Pakistan‑‑‑Nobody was above the Constitution.

Ch. Zahoor Elahi's case PLD 1975 SC 383 ref.

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

‑‑‑‑Arts. 189 & 190‑‑‑Judgment of Supreme Court was binding on each and every organ of the State.

Irfan Qadir for Petitioner.

Jehangir A. Jhoja for Respondents.

2001 C L C 1686

[Lahore]

Before Maulvi Anwarul Haq, J SHAH NAWAZ‑‑‑Appellant

versus

FERHAT ALI KHAN and 2 others‑‑‑Respondents

Regular Second Appeal No. 116 of 1987, decided on 18th December, 2000

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 17‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal‑‑­Concurrent findings by two Courts below‑‑‑Interference by High Court in second appeal‑‑‑Scope‑‑‑Suit for specific performance of contract‑‑‑Partial performance‑‑‑Defendant/vendor vide agreement to sell had agreed to sell 521 Kanals of land, but plaintiffs/vendees had filed suit to the extent of 96 Kanals and 14 Marlas only‑‑‑Evidence on record had proved that defendant/vendor was ready to perform his part of contract, but plaintiffs/vendees had failed to perform their part of contract by paying the balance amount and getting suit‑land transferred in their names in accordance with terms of agreement‑‑‑Courts below, in circumstances, had rightly dismissed the suit and concurrent findings of Courts below could not be interfered with by High Court in second appeal.

Mrs. Anwara Chowdhury v. M. Majid and others PLD 1964 SC 807; Mirza Tasawar Ali Beg v. Abdur Rashid Khan and another 1989 SCMR 868; Haji Muhammad Sadiq v. Haji Syed Muhammad Sharif and others 1997 SCMR 1994; Razia Sultana Bano and 4 others v: Muhammad Sharif and 9 others 1993 SCMR 804 and Wali Jahania and another v. Manak Ali and 2 others PLD 1965 SC 651 ref.

Malik Allah Wasaya for Appellant. Arshad Mehmood Chaudhary for Respondents.

Dates of hearing: 14th and 18th December, 2000.

2001 C L C 1689

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA, WAPDA House, Lahore‑‑‑Appellant

versus

GULF COMMERCIAL BANK LTD. and 5 others‑‑‑Respondents

Regular First Appeals Nos.471 and 472 of 1998; heard on 14th March, 2001.

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

‑‑‑‑S. 151‑‑‑Extension of time‑‑‑Words "sufficient" and "sufficient cause"‑‑­Meanings‑‑‑Construction‑‑‑Mode‑‑‑Whether liberal or strict‑‑‑Inherent powers of the Courts under S.151, C.P.C.‑‑‑Object and scope.

The word "sufficient" means adequate, effective according to the word "sufficient" means adequate, effective according to Chamber's 20th Century Dictionary. According to the Oxford Universal Dictionary it means a quantity, or scope, adequate to a certain purpose or object. In Black's Law Dictionary word "sufficient" means adequate, enough; as much as may be necessary, equal or fit for end proposed. A sufficient cause can properly be said to be a cause which is beyond control of the party invoking aid of section 151, C.P.C. Sufficient cause should receive liberal construction so as to advance substantial justice. Yet it must be determined by a reference to the circumstances of the particular cause. The Court has inherent powers under section 151, C.P.C. to secure the ends of justice.

Chamber's 20th Century Dictionary; Oxford Universal Dictionary; Black's Law Dictionary; Krishna's case ILR 13 Mad. 269 and Girdhari Lal's case AIR 1937 Oudh 436 ref.

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

‑‑‑‑S. 151‑‑‑Inherent powers of the Court‑‑‑Court under S.151, C.P.C. has inherent powers to secure the ends of justice‑‑‑Sufficient cause could properly be said to be a cause which was beyond control of the party invoking provisions of 5.151, C.P.C.

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

‑‑‑‑Ss. 7 & 9‑‑‑Suit for recovery of loan‑‑‑Leave to defend suit‑‑‑Leave was granted by Banking Court subject to furnishing security within one month‑‑­Application for extension of time for furnishing security was dismissed on the ground that applicant/borrower could not furnish sufficient cause for extension of time‑‑‑Application filed for extension of time had shown that applicants had given sufficient ground for extension of time‑‑‑Order dismissing application was set aside and applicants were directed to furnish security/guarantee before Banking Court within specified time.

(d) Words and phrases‑‑‑

......Sufficient" and "sufficient cause"‑‑‑Meaning.

Chamber's 20th Century Dictionary; Oxford Universal Dictionary and Black's Law Dictionary ref.

(e) Interpretation of statutes‑‑‑

‑‑‑‑ Expression "sufficient cause" in a statute should receive liberal construction.

Krishna's case ILR 13 Mad. 269 and Girdhari Lai's case AIR 1937 Oudh 436 rel.

Abdul Rehman Madni for Appellant.

Date of hearing: 14th March, 2001.

2001 C L C 1693

[Lahore]

Before Maulvi Anwarul Haq. J

GULZAR AHMAD‑‑‑Petitioner

versus

SARDAR ALAM and 9 others‑‑‑Respondents

Civil Revision No.283 of 2001, decided on 8th February, 2001

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 6 & 24‑‑‑Suit for pre‑emption ‑‑‑Deposit of one‑third of probable value of suit property‑‑‑Court was mandated to require deposit of one‑third of probable value of the property where the price mentioned in the mutation or the sale‑deed appeared to be inflated‑‑‑Where allegation was that the price mentioned in the mutation or the sale‑deed was inflated, the Court was under obligation to examine the plaint and whatever documents were accompanying it and after said examination and upon being satisfied that the price did not appear to be inflated, Court was bound by law to determine by approximation the probable value and then to direct the plain to deposit one‑third thereof.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 6 & 24‑‑‑Suit for pre‑emption ‑‑‑Deposit of one‑third of probable value of suit property‑‑‑Court entertaining suit, ought to examine the plaint and any material accompanying it while passing orders for deposit of one‑third of purchase price and should work out the amount payable and direct the parties to deposit the said amount in order to avoid any complication later on‑‑‑Such action was of great importance as consequences provided for non­ compliance of order of deposit were the dismissal of the suit.

Awal Noor v. District Judge, Karak 1992 SCMR 746 and Sherin and others v. Fazal Muhammad and others 1995 SCMR 584 ref.

Alamgir for Petitioner.

2001 C L C 1695

[Lahore]

Before Ch. Ijaz Ahmad, J

SHAH JEHAN KHAN‑‑‑Appellant

versus

FAZAL‑UR‑REHMAN KHAN and another‑‑‑Respondents

First Appeal from Order No.309 of 1999, heard on 8th March, 2001.

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

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Interim injunction, grant of‑‑‑Grant of interim injunction was a discretionary relief, but in passing such an order Court was not expected to go by its whims and generally accepted principles, governing exercise of such discretion had to be abided by, for, if it was not done, miscarriage of justice would be occasioned‑‑‑Trial Court on having weighed and considered all attendant facts and circumstances of the case, had to pass, rational, judicious and equitable order‑‑‑Total relief could not be granted in the garb of interim relief.

Farid Ahmed's case 1968 SCMR 88 ref.

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

‑‑‑‑O. XXXIX, Rr.1, 2 & O.XLIII, R.1(r)‑‑‑Dismissal of application for temporary injunction‑‑‑Appeal‑‑‑Jurisdiction of Appellate Court‑‑‑Trial Court did not apply its mind and decided the application for grant of interim injunction in mechanical manner without recording evidence and without framing the issue‑‑‑High Court, having ample powers to look into the subsequent events, set aside order passed by Trial Court which was not in accordance with law.

Mollah Ejahar Ali's case PLD 1970 SC 173 and Nasir Jamal's case 1990 CLC 1069 ref.

Ch. Nasrullah Warraich for Appellant.

Ch. Safdar H. Tarar and Ch. Asif Bhindar for Respondents Nos.1 and 2.

Date of hearing: 8th March, 2001.

2001 C L C 1698

[Lahore]

Before Nazir Ahmad Siddiqui, J

TASSAWAR SHAH and others‑‑‑Appellant's

versus

Mst. SADIQAN and others‑‑‑Respondents

Regular Second Appeal No.78 of 1976, decided on 29th January, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 100‑‑‑Second appeal‑‑‑First Appellate Court had passed the judgment and decree on due appreciation of law and fact and after discussing each and every piece of material evidence, had arrived at just and fair conclusion which could not be termed as perverse or arbitrary‑‑‑Conclusion so arrived at by First Appellate Court based on evidence, unless proved perverse or arbitrary, was immune from the scrutiny in the second appeal filed under S.100, C. P. C.

Syed Murtaza Ali Zaidi for Appellants.

Sikandar Javed for Respondents.

Date of hearing: 29th January, 2001.

2001 C L C 1701

[Lahore]

Before Muhammad Naseem Chaudhri, J

Messrs MODERN FOOD INDUSTRIES‑‑‑Petitioner

versus

Messrs SACO FURNITURES and others‑‑‑Respondents

Civil Revision No.2012 of 1991, decided on 26th October, 1998.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 9, 12, 42 & 54‑‑‑Allotment of plot, cancellation of‑‑‑Suit for declaration, permanent injunction and specific performance of agreement‑‑­Plot in dispute was duly allotted to the plaintiff and possession of same was also delivered to him‑‑‑Plaintiff after submitting the building plan for pits sanction to the Authority, constructed boundary wall, small room and a store on the said plot‑‑‑Authority subsequently cancelled allotment of the plot from the name of plaintiff/allottee without serving any show‑cause notice or allowing the plaintiff an opportunity of being heard‑‑‑Authority after cancelling allotment of plot in dispute from the name of the plaintiff by non­-speaking order, allotted the same to the defendant who was not legally entitled for such allotment and the plaintiff was dispossessed from the plot‑‑­Trial Court dismissed the snit of the plaintiff against order of the Authority, but Appellate Court accepting appeal, set aside judgment and decree passed by Trial Court and decreed the suit‑‑‑Validity‑‑‑Document on record had proved that plaintiff was entitled to allotment of plot in dispute and Authority had acted illegally to facilitate defendant for his wrongful gain and to cause wrongful loss to the plaintiff an had acted in an arbitrary and capricious manner in favour the defendant‑‑‑Appellate Court, in circumstances, had rightly accepted appeal against judgment and decree of Trial Court‑‑‑Judgment of Appellate Court not suffering from any infirmity, could not be interfered with by High Court.

Ch. Khurshid Ahmad for Petitioner.

S.M. Zafar for Respondent No.1.

Nizam Din for Respondents Nos.2 to 4.

Mian Muzaffar Hussain, Addl. Legal Advisor for the .D.A.

Date of hearing: 1st October, 1998.

2001 C L C 1716

[Lahore]

Before Tassaduq Hussain Jilani and Muhammad Zafar Yasin, JJ

Malik JAMSHED AHMED and another‑‑‑Petitioner

versus

DISTRICT AND SESSIONS JUDGE/APPELLATE AUTHORITY/DISTRICT RETURNING OFFICER, SAHIWAL and 2 others‑‑‑Respondents

Writ Petition No.4001 of 2001, decided on 14th May, 2001.

(a) Punjab Local Government Election Rules, 2000‑‑‑

‑‑‑‑S. 16(10)‑‑‑Mere F.I.R. registered against the candidate was not a conclusive proof of guilt.

(b) Punjab Local Government Election Rules, 2000‑‑‑

‑‑‑‑Rr. 16(9)(10) & 18(3)(iii)‑‑‑Nomination for election ‑‑‑Scrutiny‑‑­Procedure‑‑‑Returning Officer and in appeal the District Returning Officer has to consider the objections which are recorded under R.16(9) of the Punjab Local Government Election Rules, 2000‑‑‑Where, however, the objection with regard to the candidate having not a good moral character on account of his dancing with a dancing girl, was not raised before the Returning officer, such ground could not be a ground on the basis of which the District Returning Officer could have rejected the nomination papers of the candidate.

(c) Punjab Local Government Election Rules, 2000‑‑‑

‑‑‑‑Rr. 16(9)(10) & 18(3)(iii)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑ I nquiry which is contemplated under R. 16, Punjab Local ‑‑‑ Procedure‑‑‑Constitutional petition ‑‑‑ Nomination for election ‑‑‑ Scrutiny I Government

Election Rules, 2000 is a summary inquiry which does not envisage the recording of evidence in detail‑‑‑Allegation against the candidate was that he had not a good moral character on account of his dancing with a dancing girl and a video cassette of such actions of the candidate was also produced before the District Returning Officer‑‑‑District Returning Officer had never seen the cassette himself nor commented upon its authenticity i.e. the date of its having been recorded. the identity of the person who recorded the video as also even the identity of the candidate‑‑‑District Returning Officer merely relied on seven affidavits of Advocates and there was nothing on record to indicate that the candidate was provided any opportunity even to cross-­examine such persons‑‑‑Seven affidavits produced against the candidate had been sought to be countered before the High Court through 28 affidavits of persons of the locality‑‑‑Validity‑‑‑Procedure adopted by the District Returning Officer was not in accord with the Punjab Local Government Election Rules, 2000 as special law under which he was dealing with the matter but was repugnant to the mandatory provisions of the Qanun‑e-­Shahadat‑‑‑Order of the District Returning Officer rejecting the nomination papers of the candidate, in circumstances, could not be sustained and was thus, set aside by the High Court‑‑‑Candidate's nomination papers, therefore, stood accepted and he was allowed to contest the election and would be issued the election symbol accordingly‑‑‑Notification/order with regard to the election if already issued same would also be set aside‑‑‑Any observation made in the judgment of the High Court, however, shall not affect the merits of the election petition if the same was filed at appropriate stage.

1998 MLD 1054; 1984 SCMR 1172; 1988 MLD 1948; 1988 CLC 109; 1991 CLC 57; PLD 1976 SC 57; 1988 MLD 1751; 1997 MLD 612; 1995 CLC 158; 1925 All ER 1009; 1965 All ER 464; 1974 All ER 465 and 1972 All ER 699 ref.

Ch. Imdad Ali Khan, Muhammad Zakria Shaikh and Anwarul Haq for Petitioners.

Ch. Abdul Sattar Goraya for Respondents.

2001 C L C 1721

[Lahore]

Before Abdul Shakoor Paracha, J

Haji ABDUL GHAFOOR AKHTAR‑‑‑Petitioner

versus

Malik TAHIR MUKHTAR ASGHAR‑‑‑Respondent

Civil Revision No.611 of 2000, heard on 18th May, 2001.

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

‑‑‑‑O. XLI, R.27‑‑‑Additional evidence‑‑‑Application for production o1 additional evidence at appellate stage could not be dismissed independently without the decision of the appeal.

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

‑‑‑‑O. XLI, R.27‑‑‑Application for production of additional evidence in Appellate Court‑‑‑Appellate Court had not yet heard the arguments on appeal nor had perused the record nor appreciated the evidence‑‑‑Court, held, was not able to make a decision regarding requirement of the document which the applicant intended to produce as additional evidence.

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

‑‑‑‑O. XLI, R.27‑‑‑Application for production of additional evidence at appellate stage‑‑‑Documents which the applicant wanted to produce in additional evidence had been mentioned in the plaint and had nexus with the ultimate purpose for the just decision‑‑‑Evidence which was sought to be adduced had direct bearing on the point in issue and the Appellate Court could require the documents to enable it to pronounce judgment and thus, there was a substantial cause‑‑‑Dismissal of application for production of additional evidence by the Appellate Court in circumstances was a material illegality as the Court had not exercised its vested jurisdiction‑‑‑High Court set aside the said order of Appellate Court and allowed the production of additional evidence mentioned in the application with direction that the respondent shall have the right to produce the evidence in rebuttal.

Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811; R&W Younus and 2 others v. Abdul Ghaffu and others 1998 MLD 1622; Hassan and another v. Hussain 1996 CLC 650 and Zar Wali Shah v. Yousaf Ali Shah and others 1992 SCMR 1778 ref.

Sheikh Shafique Iqbal for Petitioner. Khadim Hussain Bhatti (absent) for Respondent.

Date of hearing: 18th May, 2001.

2001 C L C 1726

[Lahore]

Before Jawwad S. Khawaja, J

JAMAL DIN‑‑‑Petitioner

versus

MUHAMMAD AZIZ and others‑‑‑Respondents

Civil Revision No.62‑D of 1999, decided on 3rd May, 2000.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑S. 26‑‑‑Consolidation proceedings‑‑‑Jurisdiction of Civil Court‑‑‑Bar‑‑­Courts below had concurrently decided that order passed by the Consolidation Officer in absence of respondent, was void and that all subsequent orders passed by the Revenue Forums were also void because original order had been passed without affording opportunity of hearing to the respondent‑‑‑Deficiency in original order on account of the fact that respondent was not heard, had stood rectified by subsequent proceedings where respondent was afforded an opportunity of being heard‑‑‑Findings of Courts below that all orders passed by the Revenue Forums subsequent to original order were void, could not be maintained, especially when Courts below had no jurisdiction in the matter relating to the Revenue Forum‑‑­Concurrent judgments and decree of Courts below in favour of respondent were set aside by the High Court.

M.R. Khalid Malik for Petitioner.

Altaf Ibrahim Qureshi for Respondents.

Date of hearing: 3rd May, 2000.

2001 C L C 1727

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD RAUF KHAN‑‑‑Petitioner

versus

MEHMOOD KHAN and 14 others‑‑‑Respondents

Civil Revision No.873 of 1990, heard on 16th November, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Plaintiff had claimed that her husband had gifted the land to her and his other wife in equal shares, but defendant who was son of the owner from other wife had resisted claim of plaintiff alleging that original owner had never made any gift as asserted by the plaintiff‑‑­Defendant had claimed that on the death of original owner, half of the land was mutated in favour of plaintiff as a childless widow while other half was mutated in favour of the defendant being son of the deceased‑‑‑Defendant had further claimed that plaintiff was holding land of the deceased as a limited estate‑‑‑Courts below concurrently decreed the suit despite the fact that plaintiff had failed to prove the gift in her favour‑‑‑No witness had stated that original owner of the land in dispute had made gift as claimed by the plaintiff or that both the ladies had accepted the gift with delivery of possession of land to them under the gift‑‑‑Appellate Court below upheld judgment and decree of Trial Court stating that though no evidence was available in support of the gift in favour of plaintiff but since in the Revenue Record she was recorded as full owner, Trial Court had rightly declared plaintiff to be full owner on basis of the gift‑‑‑Courts below had grossly misread the evidence on record and had failed to take note of the correct legal provisions while decreeing the suit‑‑‑High Court in exercise of revisional jurisdiction, set aside concurrent judgment and decree of Courts below.

Taqi Ahmad Khan for Petitioner.

Syed Aftab Sherazi for Respondent No.2.

Ch. Muhammad Rafiq Warraich for Respondents Nos.4 to 14.

Nemo for the Remaining Respondents.

Date of hearing: 16th November, 2000.

2001 C L C 1732

[Lahore]

Before Malik Muhammad Qayyum and Raja Muhammad Sabir, JJ

TAHIR HABIB CHEEMA‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Writ Petition No.3772 of 1998, decided on 25th March, 1998.

(a) Educational institution-‑‑

‑‑‑‑ Admission in medical colleges s‑‑‑Conversion of "A" level to F.Sc. Marks‑‑‑Conversion formula for evaluation of merits of candidate holding "A" level/Higher Senior Cambridge or American Qualification must have logical, rational and. reasonable basis for determining the merits‑‑‑Formula adopted for conversion of "A" level/Higher Senior Cambridge to F.Sc. marks prescribed in prospectus of medical college, could be considered just and fair as their standard of education, method of marking and setting of paper excluded all possibilities of favouritism‑‑‑Foreign Examination Organizations had external examiners of their institutions, marking was made in U.K. and papers were set in their Head Office‑‑‑Standard of marking and setting papers for " A" level etc. could fairly compete with system of education in Pakistan‑‑‑American System of education was entirely on different footing, under American System the papers were set by the internal examiners and marking was also made by them and grades were awarded to the students by the internal examiners‑‑‑Principle of equivalence applied in the prospectus in respect of American qualification , in circumstances, was

(b) Educational institution­

‑‑‑‑ Admission in medical colleges-----Quota system for admission to medical colleges----- Quota system in respect of category of special persons who were physically handicapped and could not compete on open merits, could not be interfered with and reserved quota for Federally Administered Tribal Areas (FATA) who had got education in advanced areas like Lahore, Islamabad, were not entitled to get admission on special quota as all the facilities like others were available to them, but if a student of such a backward area got F.Sc. Education from district of his domicile he would be entitled for admission on reserved seat for FATA candidates.

(c) Educational Institution‑‑‑

‑‑‑‑ Admission in medical colleges‑‑‑Reserved seats for Doctor's children‑‑­Such quota was not permissible as same deprived the other deserving candidates‑‑‑Sons and daughters of teachers of the medical college could legitimately claim for that quota as an incentive for the children to teach in the medical colleges‑‑‑Reservation of seats, except those for category of special persons/handicapped FATA and children of teachers of medical colleges, was un‑Islamic and in conflict with Arts.2A, 18, 25 & 27 of Constitution of Pakistan (1973) as no discrimination on basis of race, sex territory etc. was permissible under Islam‑‑‑All seats in medical colleges, except said three categories should be filled on open merits‑‑‑Constitution of Pakistan (1973), Arts.2A, 18, 25 & 27.

Habib Subhani Chaudhry v. Chairman, Admission Board for Medical Colleges 1996 MLD 849; Mushtaq Ahmed Mohal v. The Lahore High Court and others 1997 SCMR 1043; Musarat UZman Usmani's case PLD 1987 Lah. 178; Province of Punjab and another v. Miss Khaqan Mehmood and others PLD 1985 Lah. 300 and Nusrat Baig Mirza v. Government of Pakistan and another PLD 1992 FSC 412 ref.

Irshadullah Chattha for Petitioner.

Nemo for Respondent No.1.

Kh. M. Sharif, A.‑G. and Mian Shahid lqbal for Respondents Nos. 2 and 3.

Mahmood A. Shakil for Respondent No.4.

Date of hearing: 14th March, 1998.

2001 C L C 1741

[Lahore]

Before Ch. Ijaz Ahmad, J

ISLAMIC REPUBLIC OF PAKISTAN‑‑‑Petitioner

versus

Messrs CONFORCE LIMITED and others‑‑‑Respondents

Civil Revision No.551 of 1999, decided on 29th November, 1999.

(a) Act of the Court‑‑‑

‑‑‑‑ Nobody should be penalized by the act of the Court or by the act of the public functionaries.

PLD 1970 SC 196; PLD 1960 Lah. 211; PLD 1975 Lah. 7 and PLD 1994 Lah. 3 ref.

(b) Jurisdiction‑‑‑

Conferring of jurisdiction by consent of parties‑‑‑Validity‑‑‑Jurisdiction could not be conferred by the consent of the parties against the provisions of law.

PLD 1996 SC 292 ref.

(c) Estoppel‑-

‑‑‑‑No estoppel against statute.

PLD 1977 Lah. 588 ref.

(d) Unlawful order‑‑‑

‑‑‑‑ Where the basic order was without lawful authority then the superstructure built on it would fall on the ground automatically.

Sadiq Qureshi's case PLD 1982 Lah. 1 and PLD 1958 SC 104 ref.

(e) Review‑‑‑

‑‑‑‑ Judgment of the Trial Court being in violation of the mandatory provisions of law, it should have reviewed its order.

Kh. Saeed‑uz‑Zafar for Petitioner.

Muhammad Atif Amin for Respondents.

Date of hearing: 29th November, 1999.

2001 C L C 1743

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HASSAN and another‑‑‑Appellants

versus

LIAQAT ALI KHAN‑‑‑Respondent

Regular Second Appeal No.158 of 1987, decided on 18th December, 2000.

(a) Punjab Pre‑emption Act (I of 1913)‑‑­

‑‑‑‑Ss. 4, 15, 21 & 30‑‑‑Suit for pre‑emption ‑‑‑Limitation‑‑‑Vendees by producing unrebutted evidence on record had proved that mutation was entered; price was paid by them to the vendor and possession of suit‑land was also delivered to them prior to the attestation of mutation‑‑‑Suit filed with delay of four days counting from payment of sale price and delivery of possession to the vendees, was liable to be dismissed being barred by time.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 132 & 133‑‑‑Cross‑examination‑‑‑Where a portion of statement of a witness was not challenged in cross‑examination then it would be presumed that the party against whom the evidence was being given had accept the same.

Masood Zikariya for Appellants.

Nemo for Respondent.

Date of hearing: 18th December, 2000.

2001 C L C 1746

[Lahore]

Before Amir Alam Khan and Syed Zahid Hussain, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA, WAPDA House, Lahore and 3 others ‑‑‑ Appellants

versus

TAHIR SALEEM and 4 others ‑‑‑ Respondents

Regular First Appeals Nos.32, 29, 30, 31, 33 to 35 of 1999, heard on 15th

Land Acquisition Act (I of 1894)‑‑-

‑‑‑‑Ss. 4, 18 Sc 23‑‑‑Acquisition of land‑‑‑Determination of compensation‑‑­Referee Court determined amount of compensation of acquired land taking into consideration nature of land and its location‑‑‑Land was situated at ‑a distance of about five miles from the centre of the city and had become a residential area and was surrounded by various famous housing schemes and other residential colonies‑‑‑Land had acquired great potential and value on account of its location‑‑‑Potential value of land and the use to which it could be put in future was a relevant factor for determination of its value‑‑­Referee Court, in circumstances, had rightly determined market value of the land taking into consideration situation of the land, its vicinity and potential value.

Collector, Land Acquisition, Nowshera and others v. Abdur Rashid and others 1996 CLC 1193; Province of Punjab and others v. Muhammad Rashid and others 1997 MLD 2568; Land Acquisition Collector, Rawalpindi and others v. Dina and others 1999 SCMR 1615; Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647; Government of Sindh through Deputy Commissioner, District Dadu and another v. Ramzan and others 2000 CLC 99 and Province of Punjab through Collector, Attock v. Engineer Jamil Ahmad Malik and others 2000 SCMR 870 ref.

Ch. Muhammad Hussain Naqshbandi for Appellants.

M. Saleem Sheikh for Respondents.

Date of hearing: 15th November, 2000.

2001 C L C 1751

[Lahore]

Before Maulvi Anwarul Haq, J

ASHFAQ AHMAD‑‑‑Appellant

versus

GHULAM HUSSAIN and 2 others‑‑‑Respondents

Regular Second Appeals Nos. 910 and 1036 of 1978, heard on 7th June, 2000.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4, 15 & 21‑‑‑Land Reforms Regulation, 1972 (M.L.R.115), para. 25‑‑ Suit for pre‑emption ‑‑‑Superior right of pre‑emption, determination of‑‑‑Plaintiff claimed superior right of pre‑emption on the ground that the vendees were strangers whereas he being an owner in the estate and brother of the vendor had superior right of pre‑emption ‑‑‑Plaintiff in his plaint had further stated that he also had superior right of pre‑emption as he was a non­-occupancy tenant in the suit land at the time of sale‑‑Trial Court decreed the suit, but Appellate Court below dismissed judgment and decree of Trial Court holding that since plaintiff had claimed right of pre‑emption on the basis of being a non‑occupancy tenant, the suit stood automatically transferred to the Court of Collector and that the Civil Court had no jurisdiction to deal with the matter‑‑‑Validity‑‑‑Plaintiff not only had based his suit on the right conferred by para.25 of M.L.R. 115 above, but had also claimed to be an owner in the estate and brother of the vendor‑‑‑Plaintiff during course of trial had never pressed the plea of tenancy‑‑‑Trial Court decreed the suit assuming superior right of pre‑emption of the plaintiff on the ground of his being owner in the estate and being brother of vendor‑‑­Assumption was that Trial Court had abandoned plea of his, right based on occupancy tenancy‑‑‑Contention that claim of pre‑emption should first be sent to the Court of Collector where he should abandon his plea of tenancy and. then should come back to the Civil Court for a trial de novo, was repelled‑‑‑Judgment and decree passed by the First Appellate Court were set aside and that of Trial Court were restored.

Muhammad Ramzan and 2 others v. Noor Muhammad and 4 others PLD 1987 Lah. 268 ref.

Athar Rehman Khan for Appellant.

Kh. Muhammad Akram for Respondents.

Date of hearing: 7th June, 2000.

2001 C L C 1755

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD RAMZAN‑‑‑Appellant

versus

CHIEF ADMINISTRATOR AUQAF, PUNJAB, LAHORE and 3

others‑‑‑Respondents

Regular Second Appeal No.22 of 1976, heard on 2nd October, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. ‑VII, R.2‑‑‑Suit for recovery of amount‑‑‑Plaintiff had claimed that he was entitled to recovery of amount which he had spent on construction of mosque under the implied consent of the defendants‑‑‑Plaintiff could not produce evidence on record to prove that defendants had given consent in writing or that they had their implied permission for raising the construction of mosque‑‑‑Suit was rightly dismissed concurrently by Courts below as plaintiff had failed to prove his claim.

Muhammad Abdullah Qureshi for Appellant.

Shamshir Iqbal Chughtai for Respondents.

Date of hearing: 2nd October, 2000.

2001 C L C 1757

[Lahore]

Before Maulvi Anwarul Haq, J

Syed MUBASHAR ALI and others‑‑‑Petitioners

versus

Mst. RAZIA BIBI‑‑‑Respondent

Civil Revision No.60‑D and Civil Miscellaneous Application No.2. of 2000, decided on 22nd May, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 12 & 42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration and specific performance of contract ‑‑‑Revisional jurisdiction, exercise of-‑Suit was concurrently decreed by Courts below‑‑‑Concurrent findings of facts of Courts below based on evidence on record, and not suffering from any illegality could not be interfered with by High Court in exercise of its revisional jurisdiction.

Syed Murtaza Ali Zaidi for Petitioners.

Date of hearing: 22nd May, 2000.

2001 C L C 1759

[Lahore]

Before Sheikh Abdur Razzaq, J

GHULAM NAZAK‑‑‑Petitioner

versus

FATIMA BIBI and another‑‑‑Respondents

Writ Petition No.5332 of 2000, decided on 17th November. 2000.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5 & Sched.‑‑‑Suit for dissolution of marriage on ground of Khula'‑‑­Plaintiff had categorically stated that she would prefer to die or drown in the river than to live in the house of her husband, the defendant‑‑‑Court in view of such clear‑cut statement of plaintiff should not allow hateful union between the parties to continue any further‑‑‑In absence of any evidence brought by parties with regard to benefit given to defendant‑husband, in lieu of dissolution of marriage on the ground of Khula', Court was justified not to impose any condition while granting dissolution of marriage on basis of Khula'.

Ch. Habib Ahmad Mand for Petitioner.

Date of hearing: 17th November, 2000.

2001 C L C 1762

[Lahore]

Before Nazir Ahmad Siddiqui, J

Messrs SUBHAN DEEPWELL CORPORATION, BAHAWALPUR‑‑‑Petitioner

versus

PROJECT DIRECTOR, PUNJAB RURAL WATER SUPPLY AND SANITATION

PROJECT HUD AND PHE DEPARTMENT, LAHORE and another‑‑‑Respondents

Writ Petitions Nos. 5473 and 5458 of 2000/BWP, decided on 1st December, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Tenders‑‑‑Constitutional petition‑‑‑Invitation of tender and participation by bidders‑‑‑Petitioners who claimed to be approved Government contractors in Category "A" having not been allowed to participate in the tender invited from registered renewed contractors assailed such act of exclusion in Constitutional petition‑‑‑Condition precedent to participate in the tender was that of pre‑qualification approved by the Asian Development Bank which had financed seventy‑two percent. of the cost of project in question, which had not yet been received by the petitioners‑‑­Petitioners, in circumstances, could not lawfully maintain or claim a right in respect of participation in the tender‑‑‑Authority in circumstances had rightly refused petitioners try participate in tender in question and order of the Authority could not be declared to be unlawful by High Court in Constitutional petition.

M. Shamshir Iqbal Chughtai for Petitioner.

Mian Muhammad Bashir, A.A.‑G. for Respondents.

Date of hearing: 1st December, 2000.

2001 C L C 1765

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

AYESYA AFZAL‑‑‑Petitioner

versus

CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD and another‑‑‑Respondents

Intra‑Court Appeal No. 109 of 2001 in Writ Petition No. 18527 of 2000, decided on 9th April, 2001.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Disputed question of fact‑‑‑Such question cannot be resolved by High Court in Constitutional jurisdiction.

Muhammad Younis Khan's case 1993 SCMR 618 ref.

(b) Mala fides‑‑‑

‑‑‑‑ Malice or mala fides‑‑‑General allegations of malice or mala tides are not sustainable in the eyes of law.

Saeed Ahmad Khan's case PLD 1974 SC 151 and Aman Ullah Khan's case PLD 1990 SC 1092 ref.

(c) Law Reforms Ordinance (XII of 1972)‑‑‑

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Intra‑Court Appeal‑‑‑Maintainability‑‑‑Failure to implead necessary party to‑the proceedings‑‑‑Tampering with examination result was alleged against the candidate and the Authorities withheld his result---Board of Intermediate and Secondary Education was not impleaded either in Constitutional petition or in Intra‑Court Appeal‑‑‑Effect‑‑‑Where the Board s not impleaded, neither the Constitutional petition, nor the Intra‑Court peal was maintainable.

Rameez‑ul‑Haq's case PLD 1992 SC 221 ref.

(d) Locus poenitentiae‑‑‑

--‑Principle of‑‑‑Nobody should be allowed to get benefit of his own misdeeds and the principle of locus poenitentiae is not attracted in cases of ill-go­tten gains or misdeeds.

Rehat Siddiqui's case PLD 1975 Lah. 257, Rehat Siddiqui's case 77 SCMR 213 and Jalal‑ud‑Din's case PLD 1992 SC 207 ref.

(e) Educational institutions‑‑‑

--‑Examination‑‑‑Forged marks sheet‑‑‑Authorities withheld the result of the candidate‑‑‑Candidate denied any manipulation in the admission form‑‑­Validity‑‑‑Where the candidate did not implead any person who was responsible to make that forgery, the candidate was held to be responsible of same as he was the beneficiary of the forgery‑‑‑Candidate, in the present the failed to point out any violation of rules committed by the Authorities‑‑‑Order passed by the Authorities was neither illegal nor there was any infirmity‑‑‑High Court upheld the order passed by the Authorities in circumstances.

Ahmad Latif Qureshis case PLD 1994 Lah. 3 distinguished.

Akhtar Ali's case 1979 SCMR 549 and Azhar Ali's case PLD 1971 Lah. 972 and Ali Mir's case 1984 SCMR 433 ref.

Ghulam Farid Sanotra for Appellant.

2001 C L C 1769

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. KHURSHID BEGUM‑‑‑Petitioner

versus.

JUDGE, BANKING COURT NO. II, LAHORE and another‑‑‑Respondents

Writ Petition No. 6291 of 2001, decided on 19th April, 2001.

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

‑‑‑‑Ss. 7(2) & 18(6)‑‑Civil Procedure Code (V of 1908), S.141‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Execution proceedings‑‑‑Auction of attached property, setting aside of‑‑­Banking Court allowed objection raised by the judgment‑debtor, subject to deposit of 20%, of bid money‑‑‑Contention of the judgment‑‑debtor was that such condition was illegal‑‑‑‑Validity‑‑ No provision of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, was in conflict with the provisions of Civil Procedure Code, 1908‑‑‑Where the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances,) Act, 1997, were silent qua certain situation then provisions of the general law were applicable by virtue of S.141, C.P.C. read with S.7(2) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑High Court declined to interfere with the order passed by the Banking Court‑‑‑Constitutional petition was dismissed in circumstances.

Hudaybia Textile Mills' case PLD 1987 SC 512; Messrs Ajma Corporation's case 2000 CLC 1245 and Habib Bank Ltd.'s case 2000 CLC 1425 distinguished.

Brig. Mazhar‑ul‑Haq's case PLD 1993 Lah. 706 ref.

(b) Decree‑‑‑

‑‑‑‑Technicalities'‑‑‑Courts are bound to do justice and not allow technicalities to come in their way and deprive the decree‑holders of the fruit of their decrees.

(c) Administration of justice‑‑‑

‑‑‑‑Technicalities‑‑‑Courts arc bound to do justice and not allow technicalities to come in their way.

Syed Waqar Hussian Naqi for Petitioner.

2001 C L C 1775

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD TAUQIR ANWAR AWAN‑‑‑Petitioner

versus

Haji MUHAMMAD ASGHAR and 2 others‑‑‑Respondents

Writ Petition No. 6142 of 2001, decided on 17th April, 2001.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art. 109 ‑‑‑ Constitutional petition ‑‑‑Ejectment of tenant‑‑‑Defence, striking off‑‑‑Failure to file written reply‑‑‑Despite many opportunities given by the Rent Controller, the tenant failed to file written statement whereupon defence of the tenant was struck off‑‑‑Plea raised by the tenant was that he was not required to file written statement and his defence was wrongly struck off‑‑‑Validity‑‑‑Where the tenant had failed to file written, statement, the Rent Controller had rightly struck off the defence‑‑‑Constitutional petition was dismissed in limine.

The Secretary, Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad Khan 1991 SCMR 2527 ref.

Mst. Hakumat Bibi v. Imam Din and others PLD 1987 SC 22 fol.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Ejectment petition‑‑‑Adjournment of proceedings‑‑‑Rent Controller is not required to adjourn the case at all and even if an adjournment is unavoidable, it should not be made for a period exceeding three days.

Barkat Ali v. Muhammad Ehsan and another 2000 SCMR 556 ref.

(c) Administration of justice‑‑‑

‑‑‑‑ Judicial record‑‑‑Sanctity of the judicial record cannot be sacrificed at the altar of expediency of a litigant.

Abdullah v. Shaukat 2001 SCMR 60 ref.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Ejectment proceedings‑‑‑Raising, of new plea‑‑‑Validity‑‑‑Plea not raised before ‑the Courts below was not allowed by High Court to be raised in Constitutional petition.

Ijaz Feroze for Petitioner

2001 C L C 1785

[Lahore]

Before Maulvi Anwarul Haq, J

CHIRAGH DIN‑‑‑Petitioner

versus

SUBA and 3 others‑‑‑Respondents

Civil Revisions Nos. 1655‑D and 1734 of 1986, heard on 30th March, 2001.

(a) Colonization of Government Lands (Punjab) Act (IV of 1912)‑‑‑

‑‑‑‑Ss. 20 & 21‑‑‑Tenants on Government lands‑‑‑Succession‑‑‑Provisions of S.20 of Colonization of Government Lands (Punjab) Act, 1912, are applicable to succession to original tenants but the case of tenants who have acquired tenancy by succession, their case is covered by S.21 of Colonization of Government Lands (Punjab) Act, 1912.

(b) Colonization of Government Lands (Punjab) Act (IV of 1912)‑‑‑

‑‑‑‑S. 21 (b)‑‑‑Succession Act (XXXIX of 1925), S.33(b)‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Revision‑‑‑Tenants on Government lands‑‑­Succession‑‑‑Parties were not the original tenants and they had succeeded to the tenancy‑‑‑Dispute to succession arose when the widow of the original tenant had transferred her share‑‑‑Appellate Court decided the matter in view of the provisions of S.33(b) of Succession Act, 1925, as the parties were Christian by faith‑‑‑Validity‑‑‑Appellate Court had correctly expressed the legal position in the factual background of the case‑‑‑Where no ground stated in S.115, C.P.C. for the purpose of invoking jurisdiction existed, High Court declined to interference in revision with the judgment passed by the Appellate Court.

Noman Qureshi for Petitioner.

Masood Akhtar Sheikh for Respendent.

Date of hearing: 30th March, 2001.

2001 C L C 1796

[Lahore]

Before Maulvi Anwarul Haq, J

MUKHTAR AHMAD through Legal Heirs‑‑‑Petitioner

versus

MUHAMMAD YUNUS and 4,others‑‑‑Respondents

Regular Second Appeal No.219 of 1988 and Civil Miscellaneous No. 1/C of 1999, heard on 19th April, 2001.

Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 75 & 76‑‑‑Document‑‑‑Proof‑‑‑Secondary evidence, production of‑‑‑Condition precedent for leading secondary evidence‑‑‑Disputed sale‑deed was not produced before Trial Court and secondary evidence to prove the' same was allowed by the Trial Court‑‑‑Validity‑‑‑Proof of loss of document was the condition precedent to permission to lead secondary evidence‑‑­Where the loss of the document was not proved, secondary evidence would become valueless‑‑‑Entire proceedings stood vitiated because of the failure of the Trial Court to act in accordance with provisions ‑of relevant law‑‑­Judgments and decrees passed by both the Courts were set aside‑‑‑Case was remanded to the Trial Court for decision afresh.

Mst. Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCMR 1237 ref.

Ch. Khurshid Ahmad for Appellant.

Mian Nisar mad for Respondent.

Dates of hearing: 9th, 16th, 17th and 19th April, 2001.

2001 C L C 1842

[Lahore]

Before Karamat Nazir Bhandari, J

MURREE BREWERY CO. LTD. Through Manager Tops, M.B.C.‑‑‑Petitioner

versus

PROVINCE OF PUNJAB through Secretary, Excise and Taxation, Lahore and another‑‑‑Respondents

Writ Petition No.25286 of 1997, decided on 26th April, 2001.

(a) Punjab Excise Act (I of 1914)‑‑‑

‑‑‑‑S. 31‑‑‑Consitution of Pakistan (1973), Arts.151(1)(2)(3) & 199‑‑­Constitutional petition‑‑‑Export duty, levy of ‑‑‑Vires of S.31, Punjab Excise Act, 1914‑‑‑Petitioner was manufacturer of alcohol which was mostly exported to the other Provinces of the country‑‑‑Provincial Government imposed export duty under the provisions of S.31, Punjab Excise Act, 1914‑‑‑Contention of the petitioner was that imposition of the duty was un-Constitutional as manufacturers in the other Provinces were not imposed with such duty‑‑‑Validity‑‑‑Provincial Government under, Art. 151(3) of the Constitution had no power to impose a tax, which, as between the goods manufactured or produced in the Province and similar goods manufactured or produced in any area in Pakistan would tend to discriminate in favour of the former‑‑‑By imposing the duty, Provincial Government had discriminated between the goods produced by the petitioner and the goods produced by the rivals in the other Provinces‑‑‑Imposition of export duty under S.31, Punjab Excise Act, 1914, was violative of Art.151(1) of the Constitution‑‑Provincial Government was not authorised to impose and recover export duty under the provisions of S.31, Punjab Excise Act, 1914 in circumstances.

Mirpurkhas Sugar Mills Ltd. v. District Council, Tharparkar and 2 others 1990 MLD 317; Sayphire Textile Mills Ltd. and 9 others v. Government of Sindh and others PLD 1990 Kar. 402 and Atiabari Tea Co. Ltd. v. The State of Assam and others AIR 1961 SC 232 ref.

(b) Punjab Excise Act (I of 1914)‑‑‑

‑‑‑‑S. 31‑‑‑Interpretation of S.31, Punjab Excise Act, 1914‑‑‑Word "or" as appearing in cls. (a), (b) & (c) of S.31, Punjab Excise Act, 1914‑‑‑Effect‑‑­Word "or" separates all the three clauses, which would indicate the intention of the Legislature that the ditty can be imposed either under cl. (a) or (b) or (c) but cannot be imposed under cl. (a) and also under cls. (b) & (c) of S. 31 and the clauses are disjunctive.

Mrs. Nasira Iqbal for Petitioner.

Fauzi Zafar, Asstt. A.‑G., Punjab for Respondents.

Dates of hearing: 28th February; 20th and 27th March, 2001.

2001 C L C 1878

[Lahore]

Before Raja Muhammad Sabir, J

PRIVATIZATION COMMISSION OF PAKISTAN CONSTITUTION AVENUE, ISLAMABAD‑‑‑Petitioner

versus

Messrs PETROSIN PRODUCTS (PVT.) LIMITED and 2 others‑‑‑Respondents

Civil Revision No.369‑D of 1999, heard on 2nd August, 2000.

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

‑‑‑‑Ss. 96, 100 & 115‑‑‑Revision, treated as appeal‑‑‑Scope‑‑‑If deficiency of court‑fee and bar of limitation is not involved, it would be only a formality for treating a revision as an appeal.

Abdul Aziz and others v. Sheikh Abdur Rehman and others PLD 1984 SC 164 rel.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 15, 16, 17, 20 & 41‑‑‑Award, making rule of Court‑‑‑Matter finalized by arbitrator on direction of the Trial Court‑‑‑Arbitration clause was present in the agreement between the parties‑‑‑Dispute was referred to the sole arbitrator as per agreement‑‑‑Appellant was delaying the matter on one pretext or the other‑‑‑Trial Court directed the arbitrator to himself evaluate and finalize the dispute‑‑‑Arbitrator in compliance thereof delivered the award and filed the same in the Trial Court which was made rule of the Court‑‑‑Validity‑‑‑Trial Court examined the contents of the award and also the objections raised by the appellant and made the same as rule of the Court‑‑‑Civil Court was not a Court of appeal against an arbitration award‑‑­Where contents of such award did not spell out any disqualification therein rendering the same invalid and no allegation of misconduct was raised against the‑ arbitrator, such award was based on proper assumption of law and facts and the same did not warrant interference.

Muhammad Hanif v. Muhammad and others PLD 1990 SC 859; Abdul Aziz and others v. Sheikh Abdur Rehman and others PLD 1984 SC 164; National Construction Co. v. WAPDA PLD 1987 SC 461; Messrs Valika Woollen Mills Company Ltd., Karachi v. Government of Pakistan through Director‑General Procurement (Army), Ministry of Defence, Rawalpindi and another 1993 MLD 1291 and Lahore Development Authority v. Messrs Khalid Javed & Co. 1983 SCMR 718 ref.

Raja Muhammad Akram for Petitioner.

Hassan Aurangzeb for Respondent No. 1.

Sikandar Bashir for Respondent No.2.

Dates of hearing: 31st July; 1st and 2nd August, 2000.

2001 C L C 1958

[Lahore]

Before M. Javed Buttar, J

MEHMOOD AHMAD QURESHI‑‑‑Petitioner

versus

GOVERNMENT OF PAKISTAN through The Additional Secretary (Customs), Ministry of Finance, Islamabad and 2 others‑‑‑Respondents

Writ Petition No.81 of 1988, heard on 25th April, 2001.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 16‑‑‑Imports and Exports (Control) Act (XXXIX of 1950), S.3(1)‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Confiscation of foreign currency‑‑‑Petitioner was charged with smuggling of foreign currency out of Pakistan‑‑‑Currency so recovered from the petitioner was confiscated by the Authorities‑‑‑On the charge of smuggling the petitioner was acquitted from the Court of competent jurisdiction and no appeal was filed by the Authorities‑‑‑Effect‑‑‑Authorities could only confiscate the currency, where the attempt of smuggling was established‑‑­Where acquittal of the petitioner attained finality, order of confiscation was illegal, void and without jurisdiction and the same was set aside­ High Court directed the Authorities to restore the confiscated currency to the petitioner‑‑‑Constitutional petition was allowed accordingly.

Muhammad Shahid v. Khalid Mehmood Tabassum and 4 others 1993 MLD 1247 and The Collector, Central Excise and' Land Customs and others v. Rahm Din 1987 SCMR 1840 ref.

Abdur Rashid Awan for Petitioner.

Farhat Nawaz Lodhi for the Collectorate of Customs, Rawalpindi.

Date of hearing: 25th April, 2001.

2001 C L C 1986

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

SULTAN AHMAD‑‑‑Petitioner

versus

ADDITIONAL COMMISSIONER‑‑‑Respondent

Writ Petitions Nos. 1928 of 1990, 603 and 604 of 1991, heard on 24th April, 2001.

(a) Thal Development Authority Act (XV of 1949)‑‑‑

‑‑‑‑Ss. 2(a)(b) & 4‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.161‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Jurisdiction of Additional Commissioner under Thal Development Authority Act, 1949‑‑‑Scope and extent‑‑‑Petition under Art. 199 of the Constitution‑‑­Maintainability‑‑‑Principle‑‑‑Power of Additional Commissioner under Thal Development Authority Act, 1949, is similar to that provided in the West Pakistan Land Revenue Act, 1967, where Commissioner may delegate his power to Additional Commissioner in certain matters‑‑‑Additional Commissioner under the Thal Development Authority Act, 1949 enjoys the administrative authority‑‑‑Jurisdictional power of the Additional Commissioner, therefore, cannot be challenged in Constitutional petition.

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

‑‑‑‑Art. 194‑‑‑Constitutional jurisdiction of High Court‑‑‑Object and scope‑‑­Where order cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked‑‑‑Object of Constitutional jurisdiction is to foster justice and not to perpetuate illegality and the jurisdiction must be exercised lit aid of justice.

1995 SCMR 678; Messrs Bisvil Spinners (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others PLD 1992 SC 96; Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 and Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 ref.

(c) Thal Development Authority Act (XV of 1949)---

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Aft.199‑‑‑Constitutional petition‑‑‑Factual controversy‑‑‑Dispute was with regard to ownership of suit‑land‑‑‑Both the parties claimed their ownership over the disputed land‑‑­On one side litigation between the parties was pending adjudication in Civil Court, whereas on the other side matter was pending before Board of Revenue‑‑‑Effect‑‑‑Factual controversy was to be determined by the Court of general jurisdiction and the forums where the matter was pending adjudication were the proper forums to determine the factual controversy as well as the legal entitlement of the parties‑‑‑Constitutional jurisdiction could be exercised only in the aid of justice‑‑‑High Court, therefore, declined to interfere in the matter and the petition was dismissed in circumstances.

PLD 1982 FSC 1478; 1979 SCMR 191 1985 SCMR 333; PLD 1984 SC (AJ&K) 104; 1979 SCMR 45; 1983.SCMR 677; PLD 1969 SC 167; PLD 1964 SC 260; 1979 CLC 247; 1994 CLC 871 : 1998 SCMR 858; 1995 SCMR 678 and Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 ref.

Ch. Abdul Sattar Goraya for Petitioner.

Muhammad Qasim Khan, A.A. ‑G. for Respondents Nos. 1 to 5.

Abdul Rashid Sheikh for Respondent No.6.

Date of hearing: 24th April, 2001.

2001 C L C 1996

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. BEVI‑‑‑Petitioner

versus

GHULAM MURTAZA and others‑‑‑Respondents

Civil Revision No.222 of 1991, decided on 30th May, 2001.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 13‑‑‑Pre‑emption Suit‑‑‑Judgment of Supreme Court passed in Said Kamal Shah's case, reported as PLD 1986 SC 360‑‑‑Effect‑‑‑Where judgment and decree was passed on 31‑7‑1986 by the Trial Court appeal was rightly allowed by Lower Appellate Court and the suit was dismissed as the Trial Court had no jurisdiction to decree the suit on 31‑7‑1986.

Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Sardar Ali and another v. Muhammad Ali and others PLD 1988 SC 287; Mst. Aziz Begum and others v. Federation of Pakistan and others PLD 1990 SC 899; Bahadur Khan v. Muhammad Yousaf and others 1992 SCMR 2117; Muhammad Latif v. Shams‑ud‑Din and others 2000 CLC 340; Said Ameer Khan v. Mst. Shahzadi Khatoon and others 1993 SCMR 2050; Syed Hassan Mehmood v. Bashir Ahmad and 6 others 1994 SCMR 1624 and Ch. Bashir Ahmad v. Ghulam Rasool through Legal Heirs and others PLD 1994 Lah. 13 ref.

Muhammad Anwar Warraich for Petitioner.

Nazir Ahmad Nasim for Respondent.

Date of hearing: 25th May, 2001.

2001 C L C 2011

[Lahore]

Before Maulvi Anwarul Haq and Mian Hamid Farooq, JJ

JAVAID MAHMOOD‑‑‑Appellant

versus

UNITED BANK LIMITED and 4 others‑‑‑Respondents

First Appeal from Order No. 129 of 2001, decided on 31st May, 2001.

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

‑‑‑‑S. 7(2)‑‑‑Civil Procedure Code (V of 1908), O.XXX. R.3‑‑‑Service upon partners of firm‑‑‑Procedure‑‑‑Banking Court had rightly effected service on the firm through partners of the firm as under the provisions of S.7(2) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, procedure prescribed under O.XXX, R.3, C.P.C. could be followed by the Banking Court‑‑‑Where one of the partners had been served, it was deemed to be service upon all .the partners.

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

‑‑‑‑S. 9‑‑‑Civil Procedure Code (V of 1908), O.XXX, R.3‑‑‑Suit for recovery of Bank loan‑‑‑Service upon one of the partners of defendant firm‑‑­Appellant contended that he was not duly served with the notices issued by Banking Court as he was living abroad‑‑‑Suit was filed against a firm itself and its partners were also impleaded and the appellant was one of the partners of the firm‑‑‑Service was effected on one of the partners and the suit was decreed by Banking Court‑‑‑Validity‑‑‑Where service was effected on one of the partners of the firm, by virtue of O.XXX, R.3, C.P.C. the service would be held good notwithstanding that the appellant was within Pakistan or not‑‑‑Service had duly been effected by all the modes prescribed under S.9(3) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑High Court refused to interfere with the judgment passed by Banking Court.

Messrs United Bank Ltd. v. Mrs. Rehmat and another 1991 MLD 1803; Messrs Habib Bank Ltd. v. Amanatullah Khan and others NLR 1986 Civil 582 and National Bank of Pakistan v. Tradewell (Pakistan) Corporation and 2 others 1991 CLC 1243 distinguished.

Zahid Malik for Appellant.

2001 C L C 2016

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

Maj. (Recd.) MAHMOOD HUSSAIN ‑‑‑Appellant

versus

HABIB BANK LIMITED, FAISALABAD and another‑‑‑Respondents

First Appeal from Order No.87 of 2001, heard on 9th May, 2001.

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

‑‑‑‑S. 47‑‑‑Execution‑‑‑Procedure‑‑‑Decree can be enforced by any of the modes authorized by Civil Procedure Code, 1908.

Ramachandrarao Gangadkarrao and another's case AIR 1948 Bom. 143; Gurappa Gurushiddappa Neeli's case AIR 1941 Bom. 90 and Ishrat Hussain Siddiqui's case PLD 1968 Kar. 537 ref.

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

‑‑‑‑S. 47‑‑‑Executing Court, duty of‑‑‑Scope‑‑‑Duty of executing Court is to provide assistance to the decree‑holder for execution of his decree and it should, therefore, offer the decree‑holder every possible and reasonable facility for realizing the decretal amount in a short time as possible.

Mahary Bahadur Singh's case AIR 1936 Cal. 238 ref.

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

‑‑‑‑S. 47‑‑‑Executing Court, jurisdiction of‑‑‑Scope‑‑‑While executing a decree, the Executing Court has inherent jurisdiction to determine how and to what extent and in what manner the decree has to be executed, as decree may be executed simultaneously against both, the person and the property of judgment‑debtor.

Vqnkappa and others' case AIR 1956 Hyd. 7 and Sayed Muhammad Hussain Shah's case PLD 1943 (sic) Lah. 166 ref.

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

‑‑‑‑S. 21‑‑‑Civil Procedure Code (V of 1908), O.XXI, Rr.37 & 66‑‑‑Execution of decree‑‑‑Sale by auction for recovery of decretal amount‑‑­Banking Court issued notice under O.XXI, R.37, C.P.C. against the judgment‑debtor and ordered for issuance of proclamation under O.XXI, R.66, C.P.C.‑‑‑Validity‑‑‑Courts were to do justice and not to allow technicalities to come in their way and deprive the decree‑holder of the fruit of his decree‑‑‑High Court declined to interfere with the orders passed by the Banking Court.

M. Kazim Khan for Appellant.

Mian Nasir Mehmood for Respondents.

Date of hearing: 9th May, 2001.

2001 C L C 2019

[Lahore]

Before Jawwad S. Khawaja, J

INTEGRATED TECHNOLOGIES & SYSTEMS LTD. ‑‑‑Petitioner

versus

INTERCONNECT PAKISTAN (PVT.) LIMITED through Acting Chief Executive

and others‑‑‑Respondents

Civil Original No.33 of 2001, heard on 24th July, 2001.

(a) Companies Ordinance (XLVII of 1984)‑‑

‑‑‑‑S. 21‑‑‑Alteration of Memorandum of Association‑‑‑Non‑compliance of the provisions of S.21, Companies Ordinance, 1984 by the company cannot be justified on the basis of any rules, which do not have the sanction of law.

(b) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 159 & 164‑‑‑Holding of general body meeting of the company for the purpose of passing a special resolution‑‑‑Issuance of the notice required to be given to all the shareholders prior to such meeting was mandatory‑‑‑Where such notice was not issued, shareholder was deprived of his right as a shareholder, to participate in the affairs of the company.

(c) Companies Ordinance (XLVII of 1984)—­

‑‑‑‑Ss. 157 & 164‑‑‑Holding of annual general meeting of the company‑‑­Shareholder was not provided with the notice of meeting, the audited accounts and financial statements which were to be approved at the meeting‑‑‑Effect‑‑‑Breach of law and consequent denial of shareholder's right as a shareholder of the company was established from the circumstances.

(d) Companies Ordinance (XLVII of 1984)‑‑

‑‑‑‑Ss. 162 & 161‑‑‑Representation of body corporate at a general meeting of company as shareholder‑‑‑Power of attorney by the body corporate to the person as its representative for attending the meeting of the company as shareholder, was not a proxy, no; was a proxy required from the body corporate for representing in the said meeting‑‑‑Power of attorney conferred proper authority on the person holding the same to represent the body corporate at the general meeting‑‑‑Exclusion of such authorised person was not based on any consistently applied principle but was motivated by the mala fide intent of the person controlling the affairs of the company which established lack of good faith and fairness on his part dealing with shareholders of the company and also in the context, it demonstrated the conduct which was oppressive to the shareholders who were in minority.

(e) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 305‑‑‑Petition for winding‑up of company by the Court‑‑‑Allegation of the shareholder that thief Executive of the company had diverted the funds of the company to his personal account could not be denied by the Chief Executive satisfactorily‑‑‑Such lack of probity on part of Chief Executive of the company in conducting the affairs of the company was, by itself, sufficient to justify the passing of the winding‑up order.

(f) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 305‑‑‑Petition for winding‑up of company by the Court‑‑‑Agreement between shareholder and Chief Executive of the company for sale of shares by the shareholder‑‑‑High Court, in proceedings under S.305 of the Ordinance cannot apportion responsibility between the said parties for their failure in completing the agreement or to determine their respective rights thereunder‑‑‑Whatever the dispute between the parties relating to the said agreement, fact remained that shareholder having not sold his shares continued to remain a shareholder‑‑‑Company in the proceedings seeking the winding‑up has to address the serious allegations levelled against the company.

(g) Companies Ordinance (XLVII of 1984)‑

‑‑‑‑Ss. 305, 263 & 275‑‑‑Petition for winding‑up of company by the Court‑‑­Scope‑‑‑Contention while assailing the petition was that complaint had been filed before Securities and Exchange Commission of Pakistan under S.263 of the Ordinance and the Commission was already seized of the said complaint‑‑‑Such contention was repelled for there was no basis statutory or otherwise for limiting the scope of S.305, Companies Ordinance, 1984 and proceedings under Ss. 263 to 275 of the Ordinance did not constitute an alternative remedy and relief prayed for in the petition under S.305 of the Ordinance which could only be granted by the High Court and not by the Commission.

(h) Companies Ordinance (XLVII of 1984)‑‑

‑‑‑‑Ss. 305 & 230(7)‑‑‑Petition for winding‑up of company by the Court—­Fact that a penalty had been prescribed for an act could not be construed as limiting the power of the Court to wind‑up a company on account of commission of such impermissible act.

(i) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 157, 158 & 305‑‑‑Petition for winding‑up of company by the Court‑‑­Statutory annual general meeting of the company‑‑‑Ex post facto approval cannot be accorded to an annual general meeting held by a company after the expiry of the statutory period for holding of such meeting‑‑‑Such approval substantiates the ground in support of petition under S.305 of the Ordinance that the company had failed to hold two consecutive annual general meetings.

Messrs K.S.B. Pumps Co. Ltd., Lahore's case PLD 1974 Lah. 362 ref.

(j) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 305 & 314(4)‑‑‑Petition for winding‑up of company by the Court‑‑­Petitioner though had successfully demonstrated the existence of justification for making of a winding‑up order, but in view of the fact that company was fully operational and had undertaken very substantial projects which were being executed and also substantial sums, by way of direct foreign investment, had been arranged by the company for functioning and completing the said projects, and being not unmindful of the fact that the making of winding‑up order was likely to prejudice the shareholders. of the company and those having dealings with it, including the petitioner and also possibly the creditors of the company, High Court found the case fit where the Court should have exercised its powers under S.314(4) of the Companies Ordinance, 1984 to pass an order which could result in bringing to an end the matters complained of by the petitioner without straightaway ordering the winding‑up of the company‑‑‑High Court, in circumstances, made an order providing for an alternative to winding‑up which potentially could enable the company to continue functioning as a viable entity‑‑‑While considering the terms of the order under S.314(4) of the Ordinance, High Court, took into account the price of the shares of the company freely negotiated between the ,petitioner and the Chief Executive of the Company (as set out in unexecuted agreement between them) and laid down the terms of the order under S.314(4), Companies Ordinance, 1984 accordingly.

Saleem Zulfiqar and Asad Munir for Petitioner.

Malik Qamar Afzal for Respondents.

Dates of hearing: 23rd and 24th July, 2001.

2001 CLC33

[Peshawar]

Before Mian Muhammad Ajmal, C. J.

and Shah jehan Khan, J

ABDUL SAMAD KHAN and others‑‑‑Appellants

versus

PROJECT DIRECTOR, MARDAN DEVELOPMENT

AUTHORITY, MARDAN‑‑‑Respondent

Regular First Appeals Nos.70, 86, 88 and 104 of 1997, decided on 18th April, 2000.

Land Acquisition Act (I of 1894)----

‑‑‑‑Ss. 4, 5, 5‑A, 11, 18 & 23‑‑‑Acquisition of land‑‑‑Compensation, assessment of‑‑‑Project Director informed the Land Acquisition Collector through a letter that agreement had been arrived at between some of the landowners and acquiring department m terms whereof rate of compensation of acquired land had been fixed‑‑‑Land Acquisition Collector without verifying genuineness of the agreement proceeded to pass award on basis of the agreement without taking into consideration nature and situation of land in question‑‑‑Referee Court, enhanced rate of compensation of acquired land taking into consideration the nature of the land‑‑‑Agreement on basis of which amount of compensation of land was fixed was not proved to be genuine one, as same was neither properly stamped nor signed and it appeared that it was constructed by Project Director of Acquiring Department and then signatures/thumb‑impressions of individual owners of acquired land were procured‑‑‑Assessment of compensation of acquired land on basis of said agreement was rightly set aside by Referee Court in circumstances‑‑‑Acquired land was commercial in nature and was highly potential and Referee Court, after taking into consideration the nature, potential and location of land had rightly enhanced the rate of compensation‑‑‑Assessment of rate of compensation for trees owned by owners of acquired land as assessed by Local Commissioner appointed by Referee Court in that respect, was approved and owners entitled to compensation of trees as determined by Local Commissioner.

AIR 1946 PC 75; N.‑W.F.P. through Collector v. Haji Ali Asghar Khan and others 1985 SCMR 767; Fazalur Rehman and others v. General Manager, S.I.D.B. and another 1986 SCMR 158; Malik Aman and others v. Land Acquisition Collector and others PLD 1988 SC 32; Sub. Haider Zaman and others v. Government of N.W.F.P. and others 1987 SCMR 465; Sadiq Niaz Rizvi v. The Collector, District Lasbella and another PLD 1993 SC 80 and PLD 1992 FSC 398 ref.

M. Alam Khan for Appellants.

M. Parveez Younas Khan for Respondent.

Date of hearing: 2nd March, 2000.

2001 C L C 108

[Peshawar]

Before Talat Qayum Qureshi, J

TOOR‑‑‑Petitioner

versus

ABDUL QADIR‑‑‑Respondent

Civil Revision No.339‑of 1998, decided on 29th September, 2000.

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

‑‑‑‑S. 48‑‑‑Limitation Act (IX of 1908), Art.181‑‑‑Execution application‑‑­Limitation‑‑‑Period prescribed under Art.181 of Limitation Act, 1908 is three years for the first execution application from the date of preparation of decree.

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

‑‑‑‑Ss. 48 & 115‑‑‑Limitation Act (IX of 1908), Art.181‑‑‑Limitation‑‑­Computation of period of limitation‑‑‑Suit was decreed by the Trial Court and the judgment of the Trial Court was upheld by Lower Appellate Court on 27‑11‑1993‑‑‑Judgment‑debtor preferred revision in High Court which was dismissed in limine on 11‑4‑1994‑‑‑First application for execution was filed by the decree‑holder on 17‑2‑1997 after the dismissal of revision application‑‑‑Contention by the judgment‑debtor was that the application was time‑barred as the same was filed after a period of three years ‑‑‑Validity‑‑­Where High Court had drawn decree‑sheet the limitation period would start from the date of decree passed by High Court even in revision‑‑‑Revision was dismissed in limine and no decree‑sheet was drawn by tire High Court, thus, the limitation period of three years started from 27‑11‑1993 i.e., date of order of Appellate Court and not from 11‑4‑1994‑‑‑Execution application filed by decree‑holder on 17‑2‑1997 was barred by two months and 20 days‑‑‑Judgment and order passed by the Lower Appellate Court on 27‑5‑1998 was set aside and that of Civil Judge/Illaqa Qazi, dated 28‑6‑1997 was upheld‑‑‑Execution application filed by the decree‑holder was dismissed in circumstances.

Mrs. Alice Walter v. Islamud Din Qtreshi PLD 1968 Kar. 19 ref.

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

‑‑‑‑S. 48‑‑‑Execution‑‑‑Merger, rule of‑‑‑Exception‑‑‑Where a decree was passed by revisional Court, in such a case rule of merger was applicable to the judgment and decree of the revisional Court‑‑‑Where, however, no decree was passed by the revisional Court while disposing of revision petition either in limine or otherwise, the rule of merger was not applicable.

Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 ref.

Haji Abdur Razziq Khan for Petitioner.

Khan Bahadur Khan for Respondent.

Date of hearing: 11th September, 2000.

2001 C L C 196

[Peshawar]

Before Shah Jehan Khan, J

MUHAMMAD SHERIN and others‑‑‑Petitioners

versus

MUHAMMAD SAREER and others‑‑‑Respondents

Civil Miscellaneous No.145 with Civil Miscellaneous No.502 of 2000 in Civil Revision No.395 of 1991, decided on 22nd September, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 12(2)‑‑‑Limitation Act (IX of 1908), Art. 181‑‑‑Petition under S.12(2), C.P.C.‑‑‑Limitation‑‑‑Pendency of review petition before Supreme Court‑‑­Petitioners failed to file the instant petition within 3 years under Art. 181 of Limitation Act, 1908, from the date when alleged fraud came into their notice-‑‑Effect‑‑‑If matter was pending in Supreme Court, the same could not be made sub judice in any other Court‑‑‑Petition 'was dismissed in circumstances.

Government of Sindh and others v. Khalil Ahmad 1992 CLC 1958; Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197;‑ Mst. Amtul Kabir and others v. Safia Khatoon and others 1991 SCMR 1022; Mst. Fatima Bibi and others v. Additional District Judge 1992 MLD 1395; Land Acquisition Collector v. Abdul Ghafoor Khan‑1991 MLD 554 and Iqbal Sultan v. Miss Chand Sultan and 2 others 1990 CLC 366 ref.

Mian Muhammad Yousaf Shah for Petitioners.

Muhammad Aman Khan for Respondents. Nos. 1 to 19.

Date of hearing: 18th September, 2000.

2001CLC214

[Peshawar]

Before Shah Jehan Khan

and Talat Qayum Qureshi, JJ

Mst. MUSARRAT NIGAR‑‑‑Petitioner

versus

PRINCIPAL, GOVERNMENT DEGREE COLLEGE

FOR WOMEN, SWAT and 2 others‑‑‑Respondents

Writ Petitions Nos.767 and 768 of 2000, heard on 19th October, 2000.

(a) North‑West Frontier Province Government Colleges Admission Rules, 1997‑98‑‑‑

‑‑‑‑‑.13(a)‑‑‑Constitution of Pakistan (1973), Art.22‑‑‑Educational institution‑‑‑ Admission‑‑‑ Provincial Government has the power to make provisions for admissions in Colleges but the policy must be made in the light of Art.22 of the Constitution and no one should be deprived of the right by any law passed by the Government.

(b) North‑West Frontier Province Government Colleges Admission Rules, 1997‑98‑‑‑

‑‑‑‑R. 13(a)‑‑‑Constitution of Pakistan (1973), Arts.23 & 199‑‑­Constitutional petition‑‑‑ Educational institution‑‑‑Admission to F.A., First Year‑‑‑Candidates were denied such admission on the ground that they were not residents of the locality‑‑‑Contention by the candidates was that non‑local having lesser marks than the local candidates were given admission‑‑­Validity‑‑‑Admissions to the non‑local under R. 13(a) of North‑West Frontier Province Government Colleges Admission Rules, 1997‑98, were to be made on merit and not according to the wishes and whims of the Principals of Colleges‑‑‑Candidates who had secured marks which entitled them to the admission had been wrongly ignored‑.‑‑Act of the Authorities refusing admission to the candidates was without lawful authority‑‑‑High Court directed the Authorities to give admission to the candidates without disturbing other students who had already been admitted in the college.

Syed Sardar Hussain for Petitioner.

M. Tariq Javed, A.A.‑G. for Respondents.

Date of hearing: 19th October, 2000.

2001 C L C 304

[Peshawar]

Before Shahzad Akbar Khan and Ijaz‑ul‑Hassan, JJ

MUHAMMAD BASHARAT‑‑‑Petitioner

versus

Mst. MEHAR FAZOON and another‑‑‑Respondents

Writ Petition No. 168 with Civil Miscellaneous No. 195 of 2000, decided on 24th October, 2000.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dissolution of marriage‑‑‑Cruelty as ground for dissolution of marriage‑‑‑Portion of statement of wife regarding her allegations of cruelty against the husband remained unchallenged in cross‑examination‑‑‑Family Court dissolved the marriage on the basis of such allegation‑‑‑Contention by the husband was that if the Family Court was satisfied that the spouses could not live together within the limits prescribed by Allah, then the marriage could have been dissolved on the ground of Khula'‑‑‑Validity‑‑‑Where the wife was not cross‑examined on the point of cruelty, the husband had accepted her such statement‑‑‑Cruelty was one of the grounds recognised by law for dissolving the marriage‑‑‑Family Court had taken into account all the evidence of the parties‑‑‑Judgment and decree of the Family Court did not suffer from any jurisdictional defect or misreading or non‑reading of evidence or any error patent on the face of the record‑‑‑Petition was dismissed in limine.

PLD 1982 Pesh. 42 ref.

Khursheed Khan for Petitioner.

Khalid‑ur‑Rehman Qureshi for Respondents.

Date of hearing: 24th October, 2000.

2001CLC310

[Peshawar]

Before Malik Hamid Saeed

and Tariq Parvez, JJ

SAADIA ABDUL QAIYUM‑‑‑Petitioner

versus

JOINT ADMISSION COMMITTEE (for B.D.S.)

through Principal Khyber College of Dentistry, Peshawar as Chairman and 2 others‑‑‑Respondents

Writ Petition No. 131 of 2000, decided on 1st June, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Admission in B.D.S.‑‑‑ Special quota seats‑‑‑Candidate who was daughter of a doctor registered with P.M.D.C. and domiciled in N.‑W.F.P. applied in category of seats for other Doctors‑‑‑Admission was denied to the candidate for the reason that she could not produce General Practitioner Certificate of her father instead admission was given to respondent who fell in the category of "children of doctors of Health Department"‑‑‑Validity‑‑‑Candidate fell in different category, while admission was given in different category‑‑‑Where both the categories were distinct and separate for their independent allocation of quota of seats, denial of admission to the candidate was illegal and wrong‑‑‑High Court directed the Authorities to give admission to the candidate in B.D.S. on the basis of her merit‑‑‑Respondent did not secure admission through misrepresentation or by committing fraud or misstatement and she was not at fault, rather it was because of the interpretation of different categories given by the Authorities‑‑‑High Court recommended the Authorities to regularize admission of the respondent so that her academic career and session was not wasted.

M. Saleemdil Khan for Petitioner.

A.A. ‑G. for Respondents Nos. l and 3.

Wasimuddin Khattak for Respondent No.2.

Date of hearing: 23rd May, 2000.

2001 C L C 414

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

GHULAM RAHIM and 11 others‑‑‑Petitioners

versus, NAUROZ and 39 others‑‑-Respondents

Civil Revision No.402 of 1996, heard on 25th September, 2000.

Provincially Administered Tribal Areas (Nifaz‑e‑Nizam‑e‑Shariah) Regulation (II of 1994)‑‑‑

‑‑‑‑Ss. 7 & 11‑‑‑Civil Procedure Code (V of 1908), 5.115‑‑‑Revision‑‑­Failure to adopt new procedure‑‑‑Suit was filed by the respondent under the provisions of North‑West Frontier. Province Regulation (I of 1975)‑‑­Procedure was changed and Provincially Administered Tribal Areas (Nifaz‑e­Nizam‑e‑Shariah) Regulation, 1994 was enforced during the pendency of suit‑‑‑Trial Court did not follow the new procedure and dismissed the suit according to the repealed law‑‑‑Lower Appellate Court allowed the appeal and remanded the case for retrial‑‑‑Validity‑‑‑Trial Court was obliged to adopt the new procedure in order to proceed further in the matter or would have sought the consent of the parties regarding adopting the evidence and proceedings already taken under the repealed law‑‑‑Where the Trial Court did not follow the same, the manner and method of trial was effected‑‑‑Order of the Lower Appellate Court was in consonance with the spirit/theme of the North‑West Frontier Province Regulation (II of 1994) and had rightly remanded the case back to the Trial Court for decision afresh to accordance with the new law‑‑‑Judgment and decree of the Lower Appellate Court was maintained in circumstances.

Abdul Samad and others v. Painda Muhammad and others PLD 1997 Pesh. 35 ref‑

Muzz Ullah Barkangi for Petitioner. Muhammad Alain Khan for Respondents.

Date of hearing: 25th September, 2000..

2001 C L C 453

[Peshawar]

Before Muhammad Qaim Jan Khan, J

AMAN ULLAH KHAN‑‑‑Petitioner

versus

GOVERNMENT OF N.‑W.F.P. through Secretary, Local Government and Rural

Development Department, Peshawar and 5 others‑‑‑Respondents

Revision Petition No.83‑A of 1998, decided on 31st October, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 9 & O. VII, R.10‑‑‑North‑West Frontier Province Public Properties (Removal of Encroachment) Act (V of 1977), Ss.2, 11 & 13‑‑‑Return of plaint‑‑‑Plaintiff claimed that property in dispute was a private property whereas claim of defendant was that it was a public property‑‑‑Dispute between the parties was with regard to lease of said property also‑‑‑Only forum to decide matter was Special Tribunal created under North‑West Frontier Province Public Properties (Removal of Encroachment) Act, 1977 and the jurisdiction of the Civil Court was totally barred‑‑‑Court had rightly returned the plaint in circumstances.

Rustam Khan Kundi for Petitioner.

Shaukat Hayat Khan Khakwani, A.A. ‑G. for Respondents Nos. l to 4.

Gohar Zaman Kundi for Respondent No.5.

Syed Abid Hussain for Respondent No.6.

Date of hearing: 31st October, 2000.

2001 C L C 541

[Peshawar]

before Tariq Parvez and Muhammad Qaim Jan Khan, JJ

QAIZAR KHAN‑‑‑Petitioner

versus

GOMAL UNIVERSITY, D.I. KHAN through Vice‑Chancellor, Gomal University, D.I. Khan and 4 others‑‑‑Respondents

Writ Petition No.221 of 1999, decided on 12th October, 2000.

Educational institution‑‑‑

‑‑‑‑Admission in LL.B. Class‑‑‑Regulation of the Institution had provided that holder of one professional degree could not take admission in another professional course‑‑‑Candidate who was holder of M.P.A. degree which was a professional degree, could not take admission in the LL.B. class which was also a professional degree.

Shujaullah Khan Gandapur for Petitioner.

Syed Zafar Abbas Zaidi for Respondents.

Date of hearing 12th October, 2000.

2001 C L C 557

[Peshawar]

Before Mrs. Khalida Rachid and Talat Qayum Qureshi, JJ

HAMESH GUL‑‑‑Petitioner

versus

Mst. BAKHT MANA and another‑‑‑Respondents

Writ Petition No. 1349 of 2000, decided on 29th November, 2000

(a) Custom‑‑‑

‑‑‑‑"Swara"‑‑‑History and concept.

Swara is a Pushto word that means "to ride". This tradition evolved in olden days, when the conqueror clan with the booty, also used to capture the women of the conquered clan. Women were taken to the conqueror camp riding a camel or horse. Following the same tradition, in some class of society the disputes are, settled in the same manner. The defeated party receives the same treatment when a settlement is made between two conflicting parties, especially in murder cases. A woman is sacrificed as the reward to settle a dispute and is rode to the house of the claimant of the dispute. This is rather a sign more of winning and humiliating the other party than honorary solution of a dispute or controversy.

Elegance of in genuineness in tyranny is further compounded when beneficiary of such oppression sometime refuses to marry the victim of such tyrant act. The Legislature, realising this violent innovation, had made a provision in the Pakistan Penal Code, 1860. Section 310, P.P.C. which clearly forbids such an act. '

In the pursuance of section 310, P.P.C., the practice of such a tradition is nothing but is the degradation, humiliation and abasement of the importance and value of human being given by the Allah Almighty to "Ashraf‑ul‑Makhluqat" (the most eminent of created things; mankind).

To eradicate this menace from the society once for all, there should be a severe penalty for such an oppressed act. The Courts shall not accept i such a condition for settlement of blood‑feud.

It is an extreme form of the "Bid 'at" flourishing in the society. The respondent woman has been subdued and rewarded as valid "Badal‑i‑Sulh", against the law and for twenty‑five years she was left in the house of parents like an "Uzv‑e‑Mti'attal", a useless limb of the society. She has been condemned as a "good‑for‑nothing" member of the society. This is a barbaric act and not compatible with the law of Shariat, as often claimed.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dissolution of marriage on ground of Khula'‑‑‑Wife had stated that it was not possible for her to reside and develop conjugal relation with her husband at all and she had been condemned as a "good‑for‑nothing" member of the society which was not compatible with the law of Shariat‑‑‑Wife had been subdued and rewarded under "Swara" custom of the area as valid "Badal‑e‑Sulh" against the law and for twenty‑five years she was left in the house of her parents like an "Uzv‑e‑Mu'attal", useless limb of the society‑‑‑Marriage having rightly been, dissolved by Family Court on ground of Khula', High Court declined interference in the matter.

Muhammad Amin Khattak for Petitioner.

2001 C L C 576

[Peshawar]

Before Muhammad Qaim Jan Khan, J

KAMRAN ALI KHAN‑‑‑Petitioner

versus

Mst. RASHEEDA BIBI‑‑‑Respondent

Civil Revisions Nos.96, 97, 98 and 99 of 2000, decided on .1st November, 2000.

North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑Ss. 6, 27 & 28‑‑‑Suit for pre‑emption ‑‑‑Determination of sale price‑‑‑Two different criteria for determination of sale price i.e. one year average or the registered sale‑deed‑‑‑Presumption of truth would be attached to the payment made through registered sale‑deed because it was a public document‑‑‑Where the value of a right, interest or title was stated in the document, Court would not go behind that value and would see whether the consideration for a deed was stated in terms of money‑‑‑Question of liability to the registered deed must be determined with reference to the amount so entered and not the real value of the property.

S. Zafar Abbas Zaidix for Petitioner. Kamron Khan Kazi for Respondent.

Date of hearing: 1st November, 2000.

2001 C L C 645

[Peshawar]

Before Shahzad Akbar Khan, J, SHER ZAMAN‑‑‑Appellant

versus

ALLAH DAD‑‑‑Respondent

Regular First Appeal No.3 of 1999, decided on 26th May, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXVII, Rr.2 & 3‑‑‑Suit for recovery of amount on basis of promissory note‑‑‑Application for leave to defend‑‑‑Summary procedure had been provided in cases where leave to defend was to be granted on very cogent reason which should be sufficient to satisfy the Court to the effect that applicant had made out a case for obtaining leave to defend.

1994 SCMR 560 ref.

Malik Muhammad Bashir for Appellant. Muhammad Waheed Anjum for Respondent.

Dates of hearing: 26th and 29th May, 2000.

2001 C L C 784

[Peshawar]

Before Talat Qayum Qureshi, J

Haji MUHAMMAD BASHIR and 3 others‑‑‑Petitioners

versus

Mst. ZARDAN BI and 23 others‑‑‑Respondents

Civil Revision No.271 of 1994, decided on 26th May, 2000.

(a) Hazara Settlement Report (1868‑1874)‑‑‑

‑‑‑‑P. 122‑‑‑"Serikhor" as used in revenue record‑‑‑Connotation‑‑‑Expression "Serikhor" is Malik‑e‑Qabza‑‑---‑Such person is owner of land in village who does not enjoy the other rights of proprietorship.

Abdul Jabbar v. Azizul Haq AIR 1942 Pesh. 35 ref.

(b) Hazara Settlement Report (1868‑1874)‑‑‑

‑‑‑‑S. 155‑‑‑Term‑‑‑"Seri" as used in revenue record ‑‑‑Connotation‑‑­Expression "Seri" is a grant and the term is generally used about lands granted in ownership to religious character‑‑‑" Seri" is also applied to grants to a chief in excess of his "Warasat" tribal share, or to other service grants.

Hazara Settlement Report by E.G. Wace, 1868‑74, p.122; Muhammad Atiq and others v. Tayubbuddin PLD 1998 Pesh. 47 and Azizur Rehman v. Attai Khan PLD 1976 Pesh. 60 ref.

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

‑‑‑‑S. 42‑‑‑West Pakistan Land Revenue Act (XVII of 1967), 5.161‑‑‑Suit for declaration‑‑‑Wrong entries in revenue record‑‑‑Predecessors of plaintiffs were shown to be in possession of suit land as "Serikhor"‑‑‑Trial Court decreed the suit and the Appellate Court in post remand proceedings upheld the judgment and decree of the Trial Court‑‑‑Validity‑‑‑Predecessors of the plaintiffs had been shown in possession of the property in dispute for more than 100 years and had constructed "Paka" houses thereon, grown trees and even made a graveyard‑‑‑Defendants raised no objection when the plaintiffs were making improvements in the property in dispute‑‑‑Such possession of the plaintiffs' predecessors was admitted by the defendants' witness‑‑‑Property in dispute had been assigned for Imam Masjid ‑‑‑ Where the predecessors of the plaintiffs had never paid rent to any one and they were in possession due to Khidmat‑e‑Masjid, status of such persons would be that of "Serikhor"‑‑‑Entries in revenue record showing them as "tenant‑at­will" were ineffective on the rights of the plaintiffs‑‑‑Judgments and decrees of both the Courts below did not call for any interference in circumstances.

Nadar Ali v. Mst. Hussain Bibi 1997 CLC 1549; Shaukat Ali v. Mst. Raisa Bibi 1999 CLC 62; Abdul Jabbar and others v. Azizul Haq and another AIR 1942 Pesh. 35; Muhammad Atiq and others v. Tayabuddin and others PLD 1998 Pesh. 47 and Azizur Rehman and another v. Atai Khan and others PLD 1976 Pesh. 60 ref.

Alhaj Sardar Bahadur Khan for Petitioners. Syed Abdus Salam Sarwar for Respondent No. 1.

Date of hearing: 24th April, 2000.

2001 C L C 795

[Peshawar]

Before Shahzad Akbar Khan, J

ABDUL FAHEEM and 5 others‑‑‑Petitioners

versus

PIR MUHAMMAD ‑‑‑Respondent

Civil Revision No.44 of 1997, decided on 5th July, 1999.

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

‑‑‑‑O. XVIII, R.18‑‑‑Spot inspection‑‑‑Failure to prepare inspection notes‑‑­Effect‑‑‑Findings of Trial Court were reversed by Appellate Court on the basis of spot inspection conducted by Appellate Court‑‑‑Validity‑‑‑No spot inspection notes were prepared and placed on record and no statement of any witness was recorded during the course of inspection‑‑‑Where neither any application was submitted by the parties for spot inspection, nor any record of inspection was available for the scrutiny by the higher forums, conclusion drawn by the Court on the basis of such spot inspection was not warranted by law.

Asia Begum v. Nehmat Ali and 6 others 1993 MLD 338; AIR 1952 Mad. 181; Kaliammal v. Pongiammal and others AIR 1958 Mad. 331; Muhammad Ilyas v. Muhammad Shafi 1993 MLD 1677; Muhammad Juman and another v. Mst. Aqlan and 2 others PLD 1980 Kar. 108; Nur Muhammad and another v. Khushi Muhammad and 6 others PLD 1975 Lah. 515; Tirath Main and others v. Muhammad Abdul Rahim Shah and others AIR 1923 Lah. 546 and Muhammad Nawaz v. Jiand Rai and 2 others 1981 CLC 867 ref.

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

‑‑‑‑O. XVIII, R.18‑‑‑Spot inspection‑‑‑Value‑‑‑Judgment and decree of Trial Court was reversed by the Appellate Court on the basis of spot inspection conducted. by the Appellate Court‑‑‑Such spot inspection was made without any application by either party‑‑‑Neither spot inspection notes were prepared, nor record of inspection was available on the file of the case for scrutiny by the higher forums‑‑‑Effect‑‑‑Appellate Court had fallen into error in appreciating the evidence of the parties in its true perspective and the law on the subject under O.XVIII, R.18, C.P.C. was also misconceived by the Court‑‑‑Judgment and decree of the Appellate Court was set aside in circumstances.

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

‑‑‑‑O. XVIII, R.18‑‑‑Spot inspection‑‑‑Spot inspection is no substitute for evidence and a case cannot be decided merely on the basis of opinion or impression formed by spot inspection.

Muhammad Ilyas v. Muhammad Shafi 1993 MLD 1677 ref.

Haji Samiullah Khan Miankhel for Petitioners. Zafar Iqbal for Respondent.

Date of hearing: 11th June, 1999.

2001 C L C 804

[Peshawar]

Before Abdur Rauf Khan Lughmani and Shahzad Akbar Khan, JJ.

GOVERNMENT OF N.‑W.F.P. through

Deputy Commissioner/Collector, Bannu and 3 others‑‑‑Appellants

versus

DILAWAR KHAN and 7 others‑‑‑Respondents

Regular First Appeal No.22 of 1995, decided on 3rd November, 1999.

(a) Administration of justice‑‑‑

‑‑‑‑ Unlawful act cannot be made lawful by consent of the parties.

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

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Market value of suit land, determination of‑‑‑Trial Court found the plaintiff owner of the suit property which was wrongly transferred by the defendant in his own name‑‑‑Suit was decreed by Trial Court in terms of payment of Rs.20 million as compensation of the suit land‑‑‑Validity‑‑‑Plaintiff was entitled to compensation of the suit land on the basis of market value marked out by the Patwari Halqa‑‑‑Compensation of the suit land was reduced to Rs.1,41,952 plus interest from the date of acquisition till the date of final payment.

Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287 ref

(c) Public office‑‑‑

‑‑‑‑Land grants‑‑‑Public office cannot be given on land grants.

S. Saeed Hassan Sherazi, A.A.‑G. for Appellants.

Sanaullah Khan Gandapur and S. Zafar Abbas Zaidi for Respondents.

Date of hearing: 3rd November, 1999.

2001CLC810

[Peshawar]

Before Talat Qayum Qureshi, J

MUHAMMAD HAROON‑‑‑Petitioner

versus

Mst. RAZIA BEGUM and 6 others‑‑‑Respondents

Civil Revision No. 155 of 1994, decided on 8th May, 2000.

(a) Age‑----

‑‑Age of a person‑‑‑Determination‑‑‑Age of a person can be proved by the opinion of radiologist and the evidence of radiologist is to be preferred over the school certificate.

Haseeb v. Election Authority, Sindh at Karachi and 3 others PLD 1986 Kar. 179; Muhammad Nawaz Khan v. Collector, Gujranwala and another PLD 1960 (W.P.) Lah. 1123; AIR 1941 Pesh. 38; Chaudhry Muhammad Hussain v. Muhammad Nawaz alias Dilawar Khan and another PLD 1969 Election Tribunal 111; Board of Intermediate and Secondary Education, Lahore v. Sultan Khan NLR 1980 AC 339 and Iftikhar v. The State PLD 1972 Pesh. 27 rel.

(b) Fraud‑‑‑---

‑‑‑‑Proof‑‑‑Scope‑‑‑Vague and general allegations, however strong may be, the words in which they are stated, are insufficient even to make the averment of fraud of which any Court ought to take notice.

Ghulam Sarwar v. Noor Begum and others PLD 1977 SC 75 and Muhammad Azeem v. Pakistan Employees' Cooperative Housing Society .. Ltd. PLD 1973 Note 84 at p.119 ref.

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

‑‑‑‑S.42‑‑‑Limitation Act (IX of 1908), Art. 120‑‑‑Suit for declaration ‑‑­Limitation‑‑‑Suit filed after 10 years of attestation of disputed mutation‑‑­Validity‑‑‑Period of limitation prescribed under Art. 120 of Limitation Act. 1908, for filing declaratory suit was six years‑‑‑Where no explanation worth the name for the delay had been given by the plaintiff, such suit was hopelessly time‑barred.

Noor Bibi and 6 others v. Fazal Hussain and others 1998 SCMR 230 and Shah Muhammad and others v. Central Government and others, 1998 SCMR 341 ref.

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

‑‑‑‑S. 42‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.161‑‑‑Suit for declaration‑‑‑Concurrent finding of‑ fact by both the Courts below‑‑­Disputed mutations were attested ten years prior to filing of the suit‑‑­Plaintiff alleged commission of fraud‑‑‑Both the Courts below concurrently dismissed the suit as the same was hopelessly time‑barred and the allegations of fraud were not only vague and illusory but baseless also‑‑‑Not a single jurisdictional error or of evidence which was either overlooked or misread or misinterpreted, was pointed out by the plaintiff in the concurrent findings of two Courts below on the question of fact decided against them‑‑‑High Court refused to interfere with the concurrent finding of the Courts below.

Noor Bibi and 6 others v. Fazal Hussain and others 1998 SCMR 230; Khanwal Nain and 3 others. v . Fateh Khan and others PLD 1983 SC 53; Shahzad Mir and others v. Provincial Government and others PLD 1999 Pesh. 57; Fida Muhammad and 3 others v. All residents of Ramboar Valley 1997 SCMR 846; Sheikh Muhammad Bashir Ali v: Ghulam Muhiyddin 1996 SCMR 813,.Haji, Muhammad Din v. Malik Muhammad Abdullah.PLD 1994 SC 291; Mst. Husna Bibi and others v. Niaz Gul and others 1984 SCMR 203; Gul Zar Khan v. Mst. Razia Begum 1982 SCMR 843; Waheed Gul v. Mst. Saida Jan 1998 MLD 3; Taj Muhammad v. Mst. Zaitooney and others PLD 1995 Pesh. 135 and Haji Khan Baz Khan v. Abdul Rahim PLD 1993 Pesh. 36 ref.

Ejaz Afzal Khan for Petitioner.

Syed Sajjad Hussain Shah for Respondents..

Dates of hearing: 24th March and 17th April, 2000.

2001 C L C 963

[Peshawar]

Before Shahzad Akbar Khan, J

JANIS KHAN‑‑‑Petitioner

versus

MIR AFZAL alias MANTRARI

and 4 others‑‑‑Respondents

Civil Revision No.820 of 1994, decided on 10th November, 2000.

North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑----

‑‑‑‑S. 13‑‑‑Suit for pre‑emption ‑‑‑Non‑making of Talb‑‑‑Effect‑‑­Requirement of Talb both on the point of Talb‑i‑Muwathibat and Talb‑e-­Ishhad having not been complied with by the plaintiff, suit filed by him was rightly dismissed.

Muhammad Aman Khan for Petitioner.

Zulfiqar Ali for Respondents.

Date of hearing: 10th November, 2000.

2001 C L C 972

[Peshawar]

Before Nasirul Mulk, J

SAIMA ILTAF‑‑‑Petitioner

versus

PRINCIPAL, JUNIOR BURN HALL GIRLS

COLLEGE, ABBOTTABAD and 2 others‑‑‑Respondents

Civil Revision No.78 with Civil Miscellaneous No.84 of 2000, decided on 22nd September, 2000.

Educational institution‑‑‑--

‑‑‑‑Examination‑‑‑Date of birth of student, determination of‑‑‑Date of birth recorded according to Matric and Intermediate Certificates had been sought to be corrected by student contending that date of birth recorded in Medical Certificate by the doctor of the hospital where the student was born was correct and same could not be disbelieved‑‑‑Validity‑‑‑Medical Certificate was not issued at the birth of the candidate, but was freshly issued after more than fourteen years and was not substantiated by production of the relevant Register‑‑‑Such Medical Certificate would ‑not be enough to dislodge the documentary evidence against claim of student with regard to date of birth.

Sardar Nasir Aslam Khan for Petitioner.

Mir Afzal Malik for Respondents Nos. 2 and 3.

2001 CLC 981

[Peshawar]

Before Talat Qayum Qureshi, J

KHURSHID AKBAR‑‑‑Petitioner

versus

SAADULLAH KHAN‑‑‑Respondent

Civil Revision No.288 of 1995, decided on 30th January, 2001, (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 ‑‑‑Talb‑e‑Muwathibat‑‑--‑Non‑mentioning in plaint the date, time and place as well as the names of the persons in whose presence the Talb was made‑‑­Effect‑‑‑Not necessary to mention such details in the pleadings.

Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 883 and Muhammad Zarin v. Aamer Mehmood PLD 2000 Pesh. 20 ref.

(b) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Pre‑emption suit‑‑‑Delay in making Talb‑i‑Muwathibat and Talb­i‑Ishhad‑‑‑Effect‑‑‑Pre‑emptor had failed to ‑ make Talb‑i‑Muwathibat immediately and Talb‑i‑Ishhad was made after two weeks of gaining knowledge of sale transaction‑‑--Requirements of S.13. of North‑West Frontier Province Pre‑emption Act, 1987, were not fulfilled‑‑‑Judgment passed by Lower Appellate Court was set aside and that of Trial Court was restored‑‑‑Suit of the pre‑emptor was dismissed in circumstances.

(c) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908). O.XIII, Rr.l & 4‑‑‑Qanun‑e­Shahadat (10 of ~ 1984), Art.75‑‑‑Pre‑emption suit‑‑‑Notice of Talb‑i­Ishhad‑‑‑Proof‑‑‑Failure to exhibit the notice itself‑‑‑Postman, clerk of Post Office and the witnesses of the notice were produced in Trial Court during evidence but the notice itself was not exhibited‑‑‑Effect‑‑‑Such document neither pleaded nor exhibited in evidence could riot be taken into consideration.

Pakistan Insurance Corporation v. Asian Mutual Insurance Co. Ltd. 1999 MLD 3298 ref.

Maazullah Khan Barakandi for Petitioner.

Abdul Samad Khan for Respondent.

Date of hearing: 26th January, 2001.

2001 C L C 988

[Peshawar]

Before Sardar Muhammad Raza, C.J.

and Shah Jehan Khan, J

ABDUL SAMAD KHAN and others‑‑‑Appellants

versus

GOVERNMENT OF N.‑W.F.P and others‑‑‑Respondents

Regular First Appeals Nos.68 and 69 of 1997, decided on 13th March, 2001.

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 4, 18 &. 54‑‑‑Transfer of Property Act (IV of 1882), Ss. 122 & 123‑‑­ Acquisition of land‑‑‑Compensation‑‑‑Entitlement‑‑‑Gift, validity of----Appellants had claimed ownership of acquired land in dispute on the ground that land had been gifted away to them by their grandfather through gift mutation and they being owners of the land were entitled to receive compensation thereof‑‑‑Respondents had also claimed the ownership of land in dispute on the ground that the same was purchased by their father from grandfather of the appellants through sale‑deed duly executed and mutated in Revenue Record‑‑‑Alleged gift mutation was not given effect to in subsequent Jamabandis and possession of land was never transferred to the appellants/alleged donees as in the column of cultivation of Khasra Girdawari the names of appellants were not recorded, which was one of the essential ingredients for establishing a valid gift‑‑‑Respondents on the other hand had produced sufficient undisputed evidence on record to prove that sale‑deed was executed by grandfather of the appellants in favour of the father of respondents and sale transaction was duly mutated and was included in subsequent Jamabandis and possession was also transferred to the vendee and respondents being owners had not only raised construction over land in dispute by spending huge amount, but had also transferred certain portions to other respondents‑‑‑Alleged gift mutation in respect of land in dispute, even if presumed to be entered and attested, it could be said that donor had subsequently, revoked the same which was not given effect in Revenue Record ,and possession was also not transferred to the appellants (donees)‑‑­Gift mutation, in circumstances, was declared invalid and sale‑deed in favour of father of respondents was valid and genuine‑‑‑Respondents, in circumstances, were rightly held entitled to receive compensation of acquired land and cost of superstructure duly determined and appellants who could not prove their ownership in respect of land in dispute, were rightly held not entitled to receive the compensation‑‑‑No misreading or non‑reading of evidence in the finding of Trial Court having been pointed out, appeals, were dismissed by the High Court with modification in the rate of compensation..

Abdul Samad Khan v. Project Director, Mardan Development Authority PLJ 2000 Pesh. 259; Ghulam Hussain v. Sarfraz Khan and others PLD 1956 SC (Pak.) 309; Ashiq Hussain's case 1972 SCMR 50; Shamshad Ali Shah's case PLD 1960 (W.P.) Lah. 300; Mst. Resham Bibi's case PLD 1990 Azad J&K 34 and Malik Mahram Khan v. Baz Khan and 2 others PLD 1955 Lah. 516 ref.

Muhammad Alam and Abdul Sattar for Appellant.

M. Pervez Younas, Mian Hissamuddin and Javed A. Khan assisted by Sher Bahadar for Respondents.

Date of hearing: 16th January, 2001.

2001 C L C 1007

[Peshawar]

Before Talat Qayum Qureshi, J

SHAMSHER and others‑‑‑Petitioners

versus

YAR MUHAMMAD KHAN and others‑‑‑Respondents

Civil Revision No.486 of 1995, decided on 23rd February, 2001. (a) Islamic Law‑

‑‑‑.Gift‑‑‑Gift to minors‑‑‑Islam had though prescribed that for validity of gift delivery of possession was necessary, but where property was gifted, away to the minors, delivery of possession to the minors was not necessary.

Abdullah v. Maqbool Ahmad 1988 CLC 1633; Sardar Ikramullah Khan and another v. Federal Land Commissioner, Pakistan, Rawalpindi and 6 others PLD 1984 Pesh. 260 and Rabia Khatun v. Azizuddin Biswas and others PLD 1965 SC 665 ref.

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration‑--Revisional jurisdiction, exercise of‑‑‑Suit was concurrently dismissed by Trial Court and Appellate Court‑‑‑In absence of any misreading or non­-reading of evidence or any material irregularity or wrong exercise or non-­exercise of jurisdiction vested in Courts below, concurrent findings of the said Courts could not be interfered with by High Court in exercise of its revisional jurisdiction.

Abdul Samad Khan for Petitioners.

Attaullah Khan Tariq for Respondents.

Date of hearing: 19th February, 2001.

2001CLC1013

[Peshawar]

Before Ejaz Afzal Khan, J

Mst. ROHEELA and others‑‑‑Petitioners

versus

Syed MAZHAR ALI SHAH, and others‑‑‑Respondents

Civil Revisions Nos. 110, 135, 136 of 1997 and 508 of 1999, decided on 22nd December, 2000.

(a) Transfer of Property Act‑(IV of 1882)‑‑‑

‑‑‑‑‑Ss. 122 & 123‑‑‑Gift, validity of‑‑‑Gift in respect of property made by husband in favour of his wife was objected to contending that even though the gift was made by husband to his wife, delivery of possession was to be proved and in absence of any such proof gift could not be held to be valid‑‑­Validity‑‑‑Where the property had been gifted away by a husband to his wife, .proof of delivery of possession to donee would not be necessary particularly when the control and management of the property was in the hands of the donor husband and possession with the donor after the gift would be deemed to be on behalf of the donee ‑‑‑Rationale behind delivery of possession, was to ensure that property forming subject‑matter of the gift had been 'transferred and that the donor had divested himself of that once for all‑‑-Donor by' getting the gift‑deed registered and subsequently by getting the mutation attested on the basis of the registered deed, had left nothing unturned in divesting himself of the subject‑matter of the gift‑‑‑Gift would not become invalid for want of delivery of possession where donee was a ferriale because possession with the donor after gift would be deemed to be on behalf of the donee ‑‑‑Change of possession would be complete if a recital was made in the gift‑deed about the same;

Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others PLD 1991 SC 466; Khuresheedul Islam v. Mrs. Qamar Jehan 1989 CU 1467; Mst. Waziran. v. Kalu etc. 1995 CLC 1532; K.S. Aglia Mir Ahmad Shah and others v. K.S. Agha Mir Yaqub Shah and others PLD 1957 (W.P.) Kar. 258; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Ashiq Hussain and another v. Ashiq Ali 1972 SCMR 50; Ghulam Hassan and others v. Sarfaraz Khan and others PLD 1956 SC (Pak.) 309 and Mst. Manzoor Mai v. Abdul Aziz 1992 CLC 235 ref.

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

‑‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), S:115‑‑‑Suit for declaration and injunction ‑‑‑Revisional jurisdiction, exercise of‑‑‑Appellate Court below in: reversing findings of Trial Court had not only misread the evidence on the record, but had also shown ignorance of latest dictums of superior Courts‑‑‑Appellate Court below exercised jurisdiction not vested in it by setting aside .and reversing well‑reasoned judgment of Trial Court without any legal and factual justification‑‑‑High Court, in exercise of its revisional jurisdiction, set aside judgment and decree of .appellate Court and restored that of Trial Court which was based on proper appreciation of evidence and was perfectly in conformity with the latest pronouncement of superior Courts.

Sli. Wazir Muhammad assisted by Muhammad Jamil for Petitioners.

M. Sardar Khan assisted by Sami Ullah Jan for Respondents.

Dates of hearing: 8th and 18th December, 2000.

2001 C L C 1021

[Peshawar]

Before Talat Qayum Qureshi, J

ITBAR SHAH and others‑‑‑Petitioners

versus

AHMAD SHAH and others‑‑‑Respondents

Civil Revision No.708 and Civil Miscellaneous Application No.75‑7 of 1994, decided on 2nd February, 2001.

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

‑‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration and perpetual injunction ‑‑‑Revisional jurisdiction, exercise of‑‑­Trial Court on basis of evidence on record decreed the suit and Appellate Court on reappraisal of evidence, concurred with the Trial Court‑‑‑In absence of any misreading/non‑reading of evidence or any jurisdictional error or defect, concurrent findings of facts recorded by Courts below could not be interfered with by High Court in ‑exercise of its revisional jurisdiction.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑‑S. 41‑‑‑Transfer by ostensible owner‑‑‑Provisions of S.41 of Transfer of Property Act, 1882 could be invoked if the transferee could establish that the transferor was the ostensible owner; that he was so by the consent, express or implied, of the real owner; that the transfer was for consideration and that the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer.

Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others 1999 SCMR 2874 ref.

(c) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑‑S. 7‑‑‑Transfer of title/right‑‑‑One could not transfer a better title/right than he had in the property.

Haji Muhammad Zahir Shah for Petitioners.

Abdul Samad Khan for Respondents.

Date of hearing: 2nd February, 2001.

2001 C L C 1041

[Peshawar]

Before Ijaz‑ul‑Hassan, J

Sardar MUHAMMAD ZAMAN KHAN‑‑‑Petitioner

versus

GOVERNMENT OF N.‑W.F.P. through Secretary, C&W, Peshawar and 2 others‑‑‑Respondents

Civil Revision No.223 of 1994, decided on 12th March, 2001.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court‑‑‑Concurrent findings of fact by the Courts below‑‑‑Setting aside of such findings‑‑‑Where High Court was satisfied that the concurrent findings were based on misreading or non-­reading of evidence, it was competent to set at naught such findings of fact in exercise of its revisional jurisdiction.

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

‑‑‑‑S; 115‑‑‑Revision‑‑‑Interference by High Court‑‑‑Scope‑‑‑Where the Courts below committed error m the mode prescribed for the exercise of jurisdiction, High Court has powers to interfere under 5.115, C.P.C.‑‑‑Such interference is only to correct gross and palpable errors of subordinate Court so as to prevent gross injustice in non‑appealable cases

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

‑‑‑‑S. 115‑‑‑Revision‑ ‑Misreading or omitting material piece of evidence‑‑­Interference by High Court in revision‑‑‑Scope‑‑‑Where evidence on record was neither misread nor omitted from consideration any material piece of evidence on the appreciation of evidence by the Courts below, same could not be described as perverse‑‑‑High Court declined to interfere with such findings of the Courts below in exercise of revisional jurisdiction under S.115, C.P.C.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of facts by the Courts„ below‑‑­Suit was dismissed by Trial Court and Appellate Court‑: ‑Validity‑‑‑Fair chance was afforded to both the parties to produce evidence before the Trial Court and the same was availed‑‑‑Both the Courts below had neither acted illegally nor had committed any material irregularity

Sardar Ghulam Mustafa for Petitioner. Muhammad Ayub Khan, A.A.‑G. for Respondents.

Date of hearing: 2nd March, 2001.

2001 C L C 1162

[Peshawar]

Before Malik Hamid Saeed and Ejaz Afzal Khan, JJ

NISAR HUSSAIN ‑‑‑ Petitioner

versus

Haji ABDUL FATEH and another‑‑‑Respondents

Writ Petition No.333 of 2000, decided on 8th November, 2000.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 2(a)(b)‑‑‑"Building"‑‑‑Definition‑‑‑Status of premises, determination of‑‑‑Jurisdiction of Rent Controller‑‑‑Expression "building" as defined in S.2(a) of West Pakistan Urban Rent Restriction Ordinance, 1959 was wide enough to include land leased out or let out for the purpose of being used for business or trade‑‑‑In order to oust the jurisdiction of the Rent Controller and to take a property out of the purview of expression "building", it had to be established that at the time of lease, it was an industrial unit or a factory‑‑‑If the property leased or let out was a piece of land or a vacant site at the time of creation of its lease, it would essentially be covered by the, expression "building "‑‑‑Subsequent conversion of the same into a factory or industry unit, would not be taken to oust the jurisdiction of the Rent Controller‑‑­Premises in question consisted of a piece of land at the time when it was rented out to the tenant and , saw machine was installed therein subsequently‑‑‑Premises, in circumstances, would not fall outside the scope of "building" so as to oust the jurisdiction of the Rent Controller.

Muhammad Ismail v. Abdul Habib PLD 1993 Kar. 181; Bashir Ahmad v. Mst. Zubeda Khatoon 1983 CLC 390; Muhammad Sharif v. Saeed Akhtar Hussain and 8 others PLD 1985 Lah. 365; Noor Muhammad Khan v. Haji Muhammad Ali Khan and 24 others PLD 1973 SC 218 and Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. PLD 1976 SC 781 ref.

H. Muhammad Zahir Shah for Petitioner.

Sheikh Wazir Muhammad for Respondents.

Date of hearing: 26th October, 2000.

2001 C L C 1249

[Peshawar]

Before Sardar Muhammad Raza Khan, C. J. and Shah Jehan Khan, J

Mst. ABIDA and others‑‑‑Appellants

versus

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Respondents

Regular First Appeals Nos.81 and 91 of 1997, decided on 13th March, 2001.

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 18 & 23‑‑‑Acquisition of land‑‑‑Compensation, determination of‑‑­Landowners were dissatisfied by the compensation fixed by the Court in exercise of jurisdiction under S.18 of ‑Land Acquisition Act, 1894‑‑‑High court had already fixed compensation of similar land in an earlier case‑‑­Landowners although demanded higher compensation, yet they were satisfied if the compensation fixed by the High Court in the earlier case be allowed to them which was acceded to by High Court and compensation was adjudged accordingly.

WAPDA v. Aurangzeb Khan PLD 1975 Pesh. l; Province of the Punjab v. Naseeruddin 1994 SCMR 2091; Pir Khan. v. Military Estate Officer PLD 1987 SC 485 and Military Estate Officer v. Assistant Commissioner‑cum‑Collector, Quetta and 4 others 1997 CLC 556 ref.

Abdul Samad Khan and others v. Project Director, Mardan Development Authority 2001 CLC 33 rel.

Javed A. Khan for Appellants.

M. Pervez Younas and M. Alam for Respondents Nos. 11 to 21 (in R.F.A. No.91 of 1997).

Date of hearing: 16th January, 2001.

2001 C L C 1256

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

MUHAMMAD IRFAN KHAN and 4 others‑‑‑ Petitioners

versus

Mst. NASREEN ANWAR ‑‑‑Respondent

Civil Revision No. 120 of 1996, decided on 12th May, 2000.

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

‑‑‑‑O. XLI, R.27‑‑‑Additional evidence at appellate stage‑‑‑Production of‑‑­Scope‑‑‑Filling in lacunae of either party‑‑‑Permissibility‑‑‑Petitioner during the trial intended to produce additional evidence but Trial Court did not allow the same for the reason that the evidence required to be produced was already in possession of the petitioner and the same was not produced at the appropriate time‑‑‑Appellate Court during the appeal also refused to grant permission for the production of the. evidence‑‑‑Validity‑‑‑Such evidence could be allowed only if it was deemed essential for pronouncing the judgment‑‑‑Where the material brought forth did not enable the Appellate Court to come to a definite conclusion, additional evidence could not be allowed to till in the lacunae of either party‑‑‑High Court declined to interfere with‑ the judgment passed by the Appellate Court as the Court had rightly rejected the prayer for recording additional evidence.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of fact by the Courts below‑‑­Interference by High Court‑‑‑Scope‑‑‑Concurrent findings of the two Courts below are not to be lightly interfered with by High Court in exercise of revisional jurisdiction unless the same are the result of the jurisdictional error or some material irregularity.

S. Mushtaq Ali Shah for Petitioners.

S. Allah Nawaz Khan Sadozai for Respondent.

Date of hearing: 12th May, 2000.

2001 C L C 1260

[Peshawar]

Before Shah Jehan Khan and Talat Qayum Qureshi, JJ

G.M. OF PAK ORDNANCE FACTORY‑‑‑Appellant

versus

Messrs PREMIER SUGAR MILLS AND DISTILLERY COMPANY, MARDAN‑‑‑Respondent

Regular First Appeal No. 116 of 2000 and Civil Miscellaneous No.375 of 2001, decided on 3rd April, 2001.

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

‑‑‑‑S. 18(a)‑‑‑Forum of appeal‑‑‑Determination of‑‑‑Preamble‑‑‑Such forum has to be determined on the basis of valuation made in the plaint and not on the basis of valuation ascertained by the Trial Court.

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

‑‑‑‑Ss. 2(h) & 18(a)‑‑‑Value of suit‑‑‑Forum of appeal‑‑‑Suit for recovery of sum of Rs.224,022.05 was tiled by the plaintiff which was decreed by the Trial Court alongwith 14% interest‑‑‑Appeal was filed directly in the High Court‑‑‑Plaintiff objected to the jurisdiction of High Court as according to him appeal was to be tiled before the District Judge‑‑‑Validity‑‑‑Determining factor was the amount or value of the subject‑matter of the suit, thus, the forum of appeal was to be determined according to the value of the suit as mentioned in the plaint‑‑‑Grant of decree regarding interest at the rate of 14% was irrelevant because the judgment was yet to attain its finality‑‑‑High Court, keeping in view the provisions of law and dictum laid down by Supreme Court in the case of Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others reported as 1999 SCMR 394, was of the view that the appeal would lie before District Judge as the valuation of the suit was Rs.224,022.05‑‑‑Memo, of appeal was returned to the appellant for presentation before the proper forum.

Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394 ref.

Hafiz Amanfer Appellant.

Muhammad Alam Khan for Respondent.

Date of hearing: 29th March, 2001.

2001 C L C 1431

[Peshawar]

Before Talat Qayum Qureshi, J

DARVESH ALI ‑‑‑Petitioner

versus

MUNIR KHAN and others‑‑‑Respondents

Civil Revision No.4.61 of 1996, decided on 30th March 2001.

(a) Co‑sharer‑‑‑

‑‑‑‑Joint possession‑‑‑Law of Limitation ‑‑‑Application‑‑‑Question of a limitation does not arise in case of joint possession as co‑sharer.

Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3, others PLD 1994 SC 462 ref.

(b) Limitation Act (X of 1908)‑‑‑

‑‑‑‑S. 18‑‑‑Effect of fraud‑‑‑Limitation‑‑‑Computing of period‑‑‑Fraud vitiates the most solemn proceedings‑‑‑Question of fraud is always open to scrutiny by competent Court and no fraudulent transaction can be given protection due to bar of limitation where a party was kept away from the knowledge of his right to sue or file a suit because of fraud of other party, for purpose of limitation, time would be computed from the date of discovery of fraud.

Mst. Slaoo Bibi and 3 others v. Gul Rehman and 13 of others PLD 1996 Pesh. 1 ref.

(c) Possession‑‑‑

‑‑‑ Party in possession of suit‑property‑‑‑imitation‑‑‑Were a party continued to be in possession of proprietary rights question of limitation would not arise.

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

‑‑‑‑S. 18‑‑‑Imperfect title of vendor ‑‑‑Vendee, bona fide purchaser for consideration‑‑‑Effect‑‑‑Where the vendor had defective title regarding suit property, vendee had the right under S.18 of Specific Relief Act, 1877, to compel, the vendor to make good the agreement out of his other property.

(e) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑‑S.43‑‑‑Transferor, acquiring interest in property subsequent to transfer‑‑‑Effect‑‑‑Where the transferor who had professedly transferred property for consideration upon a fraudulent or erroneous representation, when the transferor acquired interest in the property, under the provisions of S.43 of Transfer of Property Act, 1882, he was authorised to make such transfer of immovable property.

Sayyed Ghulam Muhammad Shah v. Sayyed Fateh Muhammad Shah PLD 1955 FC 1 and Ziauddin Rafi v. Muhammad Khan and others PLD 1962 (W. P ) Lah. 321 ref.

(f) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 43‑‑‑Specific Relief Act (I of 1877), S.18‑‑‑Imperfect title of vendor‑‑­Vendee, bona fide purchaser for consideration‑‑‑Compensation from other property owned by vendor‑‑‑Subsequent acquisition of title by vendor‑‑­Registered sale‑deed was executed in favour of the vendee and possession was handed over‑‑‑After death of the vendor proceedings against the vendee were initiated before Revenue Authorities on the ground that the vendee was wrongly put into possession over certain portion of land‑‑‑Predecessors of the vendee filed a civil suit regarding compensation from the other property owned by the vendor‑‑‑Validity‑‑‑None of the defendants had challenged the validity of the sale‑deed and the same was proved before Trial Court in accordance with law without any objection‑‑‑Such sale‑deed was binding on the successors of' the vendor who were liable to compensate the plaintiffs from the property left by the vendor according to the proportionate shares inherited by them‑‑‑Judgments and decrees passed by the Courts below were modified‑‑‑Plaintiffs were declared owners the suit property in circumstances.

Abdul Latif and others v. Manzoor Ahmad and others 1993 MLD 178 and Ziauddin Raft. v. Muhammad Khan and others PLD 1962 (W. P.) Lah. 321 ref.

Mazullah Barkandi for Appellant.

M. Alam Khan assisted by Ghulam Ali for Respondent.

Date of hearing: 26th March, 2001.

2001 C L C 1804

[Peshawar]

Before Ijaz‑ul‑Hassan, J

Mian MAQBOOLUR REHMAN through Legal Heirs and another‑‑‑Petitioners

versus

Mst. MUNAWAR‑UN‑NISA and 8 others‑‑‑Respondents

Civil Revision No.376 of 1994, decided on 19th March, 2001.

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

‑‑‑S. 115‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑­Revision‑‑‑Scope‑‑‑Courts below while recording the finding of fact, had neither misread the evidence nor had ignored any material piece of evidence on record‑‑‑High Court in exercise of its revisional jurisdiction was empowered to set at naught the concurrent finding of fact of two Courts below if the High Court was satisfied that the finding was based on misreading or non‑reading of evidence‑‑‑Concurrent finding of fact would not always stand in the way of the‑High Court to correct the same in the appropriate cases‑‑‑High Court, in exercise of its jurisdiction under S.115, C.P.C. could only interfere with the orders of the subordinate Courts on the ground that the Courts below had assumed jurisdiction which did not vest in them or had failed to exercise the jurisdiction vested in them by law or that the Courts below had acted with material irregularity affecting the jurisdiction in the case.

Ghulam Hussain and others v. Imam Bakhsh and 9 others 1995 MLD 1165; Atta Muhammad v. Nasir‑ud‑Din PLD 1993 Pesh. 127; Khan Mir Daud Khan and others v. Mahrullah and others PLD 2001 SC 67; Mst. Amina Bi v. Mst. Bivi and others 1993 MLD 1207; Jam Pari v. Muhammad Abdullah 1982 SCMR 786; Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi‑ud‑Din 1996 SCMR 813; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 S 291 and Abdul Hakeem v. Habibuilah and 11 others 1997 SCMR 1139 ref.

(b) Islamic Law‑‑‑

‑‑‑‑ Marz‑ul‑Maut‑‑‑ Characteristics‑--‑To constitute a malady "Mart‑ul‑Maut" apprehension of death; so that there was a preponderance of apprehension of death; some degree of subjective apprehension in the mind of sick person; and some external indicia, chief among which would be inability to attend to ordinary avocations.

Syed Mehboob Ahmad Shah for Petitioners.

Shakeel Ahmad Khan for Respondents.

Date of hearing: 12th February, 2001.

2001 C L C 1814

[Peshawar]

Before Ijaz‑ul‑Hassan, J

Mst. ZAINUM NOOR through Legal Heirs and 7 others‑‑‑Petitioners

versus

Mst. NOOR NISHAN and 5 others‑‑‑Respondents

Civil Revision No.225 of 1994, decided on 20th April, 2001.

Civil Procedure Code (V of 1908)‑-‑

‑‑‑‑S. 115‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑Suit for declaration and permanent injunction‑‑‑Revision‑‑‑Exercise of revisional jurisdiction‑‑­Scope‑‑‑Limitations‑‑‑Principles‑‑‑Suit was concurrently decreed by Courts below and the defendant could not point out any error in the concurrent judgments, warranting interference by High Court‑‑‑High Court in its revisional jurisdiction, was not competent in undertaking its own appraisal of evidence in the face of the concurrent findings of the two Courts below in the absence of any jurisdictional error or material irregularity ‑‑‑Revisional powers under S.115, C.P.C. were primarily intended for correcting errors made by the subordinate Courts in the exercise of their jurisdiction‑‑­Erroneous decisions of fact, ordinarily, were not revisable except in cases where the decision was based on no evidence or inadmissible evidence was relied upon or the orders sought to be reviewed were so perverse that grave injustice would result there from‑‑‑Defendant had not been able to point out any jurisdictional defect in concurrent judgments of Courts below nor. he could show any misreading of relevant evidence or overlooking any important evidence‑‑‑Revision against concurrent judgments of Courts below was dismissed, in circumstances.

Muhammad Sana Mondal v. Muhammad Ahmad Sheikh and others PLD 1963 Dacca 816; Syed Mehboob Shah v. Sher Afzal 1984 CLC 2499; Ali Muhammad Brohi v. Haji Muhammad Hashim 1983 CLC 2052; Muhammad Hayat and others v. Ali Muhammad and others 1983 CLC 2380; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Abdul Latif v. Abdul Qayum PLD 1992 Pesh. 103; Abdul Ghafoor v. Government of Sindh and others PLD 1993 Kar. 52; Rashmin and another v. Abdur Rahim and others PLD 1993 Pesh. 239; Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289; Suba through his 8 L.Rs. v. Mst. Fatima Bibi 1992 SCMR 1721; Ghulam Haqani and another v. Mst. Zulekhan and others PLD 1953 Pesh. 65; Muhammad Imran v. Malik Aman and others 1979 SCMR 481; Waheed Gul v. Mst. Saida Jan 1998 MLD 3; Sheikh Muhammad Bashir Ali v. Sufi Ghulam Muhiyuddin 1996 SCMR 813; Fida Muhammad and 3 others v. All residents of Rumboor Velly 1997 SCMR 846 and Mehr Jan and 2 others v. Gul Azam 2001 MLD 412 ref.

Abdul Karim Malik for Petitioners.

Altaf Sardar Bahadur Khan for Respondents.

Date of hearing: 2nd April, 2001.

2001 C L C 1819

[Peshawar]

Before Sardar Muhammad Raza, CJ

MUHAMMAD DAUD‑‑‑Petitioner

versus

Mst. SURRIYA IQBAL and 3 others‑‑‑Respondents

Civil Miscellaneous No.104 of 2000 in Civil Revision No.71 of 1996, decided on 6th June, 2001.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13(6) [as amended by West Pakistan Urban Rent Restriction (Amendment) Ordinance (XXX of 1960)] & 17 [as amended by North‑West Frontier Province Urban Rent Restriction (Amendment) Ordinance (IX of 1979)]‑‑‑Determination of rent‑‑‑Execution of order‑‑‑Rent Controller before framing of the issues would call' upon the tenant to deposit the rent of premises approximately or tentatively‑‑‑Fixation of tentative rent under S.13(6) was merely an interim order and the Rent Controller was statutorily bound to finally determine the rent‑‑‑Proceedings before the Rent Controller would not legally conclude until the rent was finally determined despite the fact that the tenant might be ejected for non‑compliance of the interim order under S.13(6) of the Ordinance‑‑‑If rent was determined finally, it would be an order executable under S.17 of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Rent Controller in Punjab was empowered to execute their own orders, but in the manner in which a Civil Court decree was executed under O.XXI, C.P.C.

1974 SCMR 504 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 17 [as amended by North‑West Frontier Province Urban Rent Restriction (Amendment) Ordinance (IX of 1979)]‑‑‑Execution of order of Rent Controller‑‑‑Order of Rent Controller in North‑West Frontier Province, would not be executed by the Rent Controller, but by a Civil Court as if it was a decree of that Court under O.XXI of C.P.C.‑‑‑Once the Rent Controller, in North‑West Frontier Province, passed an order in the shape of final order it would become functus officio like the Cantonment Rent Controller and the execution proceedings would not directly be filed before the Rent Controller who would become functus officio ‑‑‑Exeuction proceedings, in circumstances, were required to be filed before the Senior Civil Judge who could either execute the order himself or entrust the same to any other Civil Court having jurisdiction in the area‑‑‑Filing of execution proceedings before the same Rent Controller who had passed the ejectment order was a procedural irregularity committed on account of confusion that the same entity happened to be a Rent Controller as well as a Civil Judge‑‑­Both those entities were never mixed in one as was in the Province of Punjab since in the North‑West Frontier Province those were separate entities and when the order of a Rent Controller was brought for execution, it was for the first time brought before the Civil Court and should be filed before the Senior Civil Judge.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13(6) [as amended by West Pakistan Urban Rent Restriction (Amendment) Ordinance (XXX of 1960)] & 17 [as amended by North‑West Frontier Province Urban Rent Restriction (Amendment) Ordinance (IX of 1979)]‑‑‑Rent Controller according to S.13(6) as amended by Ordinance (XXX of 1960) was bound to finally determine the amount of rent due from tenant, and if so determined finally, then such order would become executable under S.17 of the Ordinance as amended in N.‑W. F. P. and no separate suit would be required to be filed for recovery of rent.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13(6) [as amended by West Pakistan Urban Rent Restriction (Amendment) Ordinance (XXX of 1960)] & 17 [as amended by North‑West Frontier Province Urban Rent Restriction (Amendment) Ordinance (IX of 1979)]‑‑‑Order passed by Rent Controller in North‑West Frontier Province was executable by a Civil Court having jurisdiction in the area as if it were a decree of that Court and the execution proceedings would be filed in the Court of Senior Civil Judge who could either execute the same himself or entrust the same to any other Civil Court for execution.

Mushtaq Ali Tahirkheli for Petitioner.

Abdur Rehman Qadar for Respondents.

2001 C L C 1833

[Peshawar]

Before Mian Shakirullah Jan, J

STATE BANK OF PAKISTAN‑‑‑Petitioner

versus

INDUS BANK LIMITED through Chairman‑‑‑Respondent

Company Application No.8 of 2000, heard on 29th January, 2001.

(a) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 7 & 8‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑‑Company Bench constituted by Chief Justice under the provisions of Ss.7 & 8 of Companies Ordinance, 1984 from amongst the Judges of High Court would exercise jurisdiction vested in High Court in the matters pertaining to company matters.

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

‑‑‑‑S. 2‑‑‑Expression "save as hereinafter expressly provided" in S.2, Banking Companies Ordinance, 1962‑‑‑Connotation‑‑‑Such expression provides the application of the Companies Act, 1913, unless there is bar for its application.

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

‑‑‑‑S. 2‑‑‑General Clauses Act (X of 1897), S.8‑‑‑Repealed enactment‑‑Companies Ordinance, 1984 and Companies Act, 1913‑‑‑Application‑‑­Scope‑‑‑Companies Ordinance, 1984 being a successor statute of the Companies Act, 1913, would be read in place of the companies Act, 1913 in Banking Companies Ordinance, 1962, S.2 by virtue of S.8 of General Clauses Act, 1897.

(d) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 7, 8 & 503‑‑‑Banking Companies Ordinance (LVII of 1962), Ss.2, 49 & 52‑‑‑Banking Companies Peshawar High Court Rules, 1972, R.2(iv)‑‑­Winding‑up of Banking Company‑‑‑Jurisdiction of High Court‑‑‑Objection was raised to the jurisdiction of Company Bench of High Court qua winding ­up proceedings of a Ban‑king 'Company ‑‑‑Validity‑‑‑Cumulative effect of provisions of Ss.7, 8 & 503 of Companies Ordinance, 1984 and Ss.2, 49 & 52 of the Banking Companies Ordinance, 1962 read with notification issued by Chief Justice for constitution of Company Bench, was that the High Court which had the jurisdiction to adjudicate the application‑‑‑Objection was overruled in circumstances.

Khadim Mohyuddin and another v. Ch. Rehmat Ali Nagra and another PLD 1965 SC 459; Bolan Bank Limited v. Capricorn Enterprises (Pvt.) 1998 SCMR 1961 and Khan Bahadur A.G. Khan v. Shujauddin Qureshi and others PLD 1961 SC 1 distinguished.

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

‑‑‑‑S. 27(b)‑‑‑State Bank of Pakistan Act (XXXIII of 1956), S.10‑‑‑Licence of Banking Company, cancellation of‑‑‑Jurisdiction of Governor, State Bank‑‑‑Contention of the Banking Company was that the Governor, State Bank could not cancel the licence as under the provisions of S‑27(b) of Banking Companies Ordinance, 1962, Central Board of State Bank had powers to review and only the Board could cancel the licence ‑‑‑Validity‑‑­When the Governor, State Bank in exercise of powers under S.10 of State Bank of Pakistan Act, 1956 could control the affairs of the Bank on behalf of the Central Board, the licence was rightly cancelled by the Governor, State Bank.

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

‑‑‑‑Ss. 27(4) & 49‑‑‑Winding‑up of Banking Company‑‑‑Revocation of licence of the Banking Company by State Bank of Pakistan‑‑‑Effect‑‑‑Where in the opinion of the State Bank the continuance of the Banking Company was prejudicial to the interest of its depositors then it became obligatory for the Court to pass‑the winding‑up order under the provisions of S.49(1) of Banking Companies Ordinance, 1962‑‑‑Banking Company was ordered to be wound up in circumstances.

Joseph Kuruvilla v. Reserve Bank of India AIR 1962 SC 1371 and Reserve Bank of India v. Palai Central Bank AIR 1961 Ker 268 ref.

(g) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 330‑‑‑Joint Official Liquidator ‑‑‑Powers of‑‑‑Assets of wound‑up company and deposits held by or entrusted to it could be taken into custody by the Joint Official Liquidators under the provisions of S.330 of Companies Ordinance, 1984.

Hidayatullah Khan for Petitioner.

Yahya Khan Afridi for Respondent.

Date of hearing: 29th January, 2001.

2001 C L C 1847

[Peshawar]

Before Sardar Muhammad Raza Khan, C. J. and Qazi Ihsanullah Qureshi, J

KHAISTA KHAN‑‑‑Petitioner

versus

SENIOR MEMBER, BOARD OF REVENUE, N.‑W.F.P., PESHAWAR and 4

others‑‑‑Respondents

Writ Petition No. 832 of 1999, decided on 16th March, 2001.

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

‑‑‑‑S. 141(5)‑‑‑Partition of land‑‑‑Disposal of question of title qua property, to be divided‑‑‑Jurisdiction of Revenue Court‑‑‑Scope‑‑‑Whenever title becomes disputed before Revenue Court seized of the partition proceedings, the Court can assume jurisdiction as a Civil Court under S.141(5 of West Pakistan Land Revenue Act, 1967.

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

‑-- Ss. 33 & 96‑‑‑Purpose of drawing decree‑sheet‑‑‑Whenever a decree is passed by a Civil Court, it is bound to draw a decree‑sheet as appeal lies against a decree‑sheet and not against, a judgment.

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

‑‑‑‑Ss. 135 & 141(5)‑‑‑Partition of land‑‑‑Title to property, dispute in respect of‑‑‑Deciding the matter by Revenue Court in the capacity of Civil Court under the provisions of S.141(5) of West Pakistan Land Revenue Act, 1967‑‑‑Revenue hierarchy refused to interfere with the matter ‑‑‑Validity‑‑­Where Trial Court had decided the matter in its capacity as Civil Court, revenue hierarchy had rightly not interfered with the matter, they had no jurisdiction to do so.

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

‑‑‑‑Ss. 135 & 141(5)‑‑‑Civil Procedure Code (V of 1908), S.33‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutiorial petition‑‑‑Act of Court‑‑‑Failure to draw decree‑sheet‑‑‑Dispute as to title of the property during partition proceedings‑‑‑Revenue Court in the capacity of Civil Court passed a judgment but failed to draw decree‑sheet‑‑‑Petitioner filed appeal before Additional District Judge and the same was dismissed on the ground that the appeal was not filed against the decree‑‑‑Petitioner filed appeal before Revenue Authorities instead of preferring revision against the order of Additional District Judge who refused to decide the matter as the Trial Court had exercised jurisdiction as Civil Court‑‑‑Validity‑‑‑Entire anomaly was created by the Trial Court which committed rave illegality by not drawing a decree‑sheet‑‑‑Trial Court had failed seriously to exercise a most important jurisdiction vested in it ‑‑‑whatever time was wasted by any of the parties and whatever time would be wasted in future would not absolve the Trial Court from not exercising a jurisdiction vested in it‑‑‑Where Trial Court, under the law, was bound to draw a decree‑sheet, it would remain bound forever, regardless of what the parties had been doing on their part‑‑‑Such duty on the part of Trial Court was so binding that it was bound and would remain bound forever to draw a decree‑sheet even if the parties had gone no where to seek redressal of their grievance‑‑‑Order of Additional District Judge was set aside and Constitutional petition was allowed in circumstances.

Atiqur Rehman Qazi for Petitioner.

Muhammad Jamil for Respondents.

Date of hearing: 13th March, 2001.

2001 C L C 1853

[Peshawar]

Before Mian Shakirullah Jan and Talaat Qayyum Qureshi, JJ

ZAFEER GUL and 19 others‑‑‑Petitioners

versus

N.W.F. PROVINCE through Secretary, Government of N.‑W.F.P. Revenue

Department and Senior Member, N.W.F.P., Board of Rev Peshawar and 5

others‑‑‑Respondents

Writ Petition No. 1452 of 2000, decided on 22nd March, 2001.

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

‑‑‑‑S. 3(e)‑‑‑Expression "company "‑‑‑Housing society registered under Cooperative Societies Act, 1925 is qualified as "company" for the purpose of land acquisition.

People's Housing Society and others v. Collector, Lahore and others 1979 CLC 180 ref.

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

‑‑‑‑S. 3(f)‑‑‑Expression "public purpose" Public purpose" is an object in which the general interest of community as opposed to particular interest of individuals is directly and vitally concerned‑‑‑Such is a purpose which is in furtherance of general interest of the community at large as opposed to the particular interest of an individual.

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

‑‑‑‑S. 3(f)‑‑‑"Public purpose"‑‑‑Scope‑‑‑Land acquired by WAPDA Cooperative Housing Society for construction of residential colony would fall under the definition of "public purpose".

People's Housing Society and others v. Collector, Lahore and others 1979 CLC 180; Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. through .the Secretary, Fortress Stadium, Lahore Cantt. and 2 others PLD 1983 Lah. 552; Raja Muhammad and others v. Province of Punjab and others PLD 1983 Lah. 355; Babu Barya Thakur v. State of Bombay AIR 1960 SC 1203; Hambai Framjee Petil v. Secretary of State for India AIR 1914 PC 20; Jhandu Lal Budh Ram and others v. The State of Punjab and another AIR 1959 Pb. 479; Tej Ram Jag Ram v. Union of India, Ministry of Works, Housing and Supply, New Delhi and others AIR 1959 Pb. 478; Radha Raman v. State of Uttar Pradesh and others AIR 1954 All. 700; R.L. Arora v. The State of Uttar Pradesh and others AIR 1962 SC 764; Pakistan through Ministry of Works, Government of Pakistan, Karachi and another v. Muhammad Ali and others PLD 1960 SC 60; Anand Kumar and another v. State of Madhya Pradesh and others AIR 1963 Madh. Pra. 256 and Veeraraghavachariar and others v. Secretary of State for India AIR 1925 Mad. 837 ref.

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

‑‑‑‑S. 4‑‑‑Notification under S.4 of Land Acquisition Act, 1894‑‑‑Object‑‑­Government's intention to acquire land is notified vide Notification under S.4 of Land Acquisition Act, 1894‑‑‑Purpose of Notification under S.4 of Land Acquisition Act, 1894, is to carry on a preliminary investigation with a view to find out, after necessary survey, and taking levels, and if necessary digging or boring into the sub‑soil whether the land was adapted for the purpose, for which it was sought to be acquired‑‑‑Proposal which is submitted after such inquiry becomes the subject‑matter of definite proceedings for acquisition under the Land Acquisition Act, 1894.

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

‑‑‑‑Ss. 4, 5‑A‑, 40 & 41‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Acquisition of land‑‑‑Housing society registered under Cooperative Societies Act, 1925, acquired the land‑‑‑Agreement between the Government and the Society was executed under the provisions of S.41 of‑Land Acquisition Act, 1894‑‑‑Validity‑‑‑Coded formalities under the law were fulfilled and the Authority was competent to issue Notification under S.4 of Land Acquisition Act, 1894.

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

‑‑‑‑Ss. 4 & 5‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Alternate remedy, availability of‑‑‑Effect‑‑­Challenge to the issuance of Notification under S.4 of Land Acquisition Act, 1894‑‑‑Remedy of filing appeal under S.5‑A of the Land Acquisition Act, 1894, being available, Constitutional petition was not maintainable.

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

‑‑‑‑Ss. 4 & 54‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Alternate remedy, availability of‑‑‑Lands owned by the petitioners were acquired by the Government for the purpose of establishing housing society and Notification under S.4 of Land Acquisition Act, 1894, was issued by the Competent Authority‑‑‑Constitutional petition against the Notification ‑‑‑validity‑‑‑High Court was repository of ultimate jurisdiction conferred by Land Acquisition Act, 1894‑‑‑Petitioners, after availing all the remedies under Land Acquisition Act, 1894, could file appeals under S.54 of Land Acquisition Act, 1894, in the High Court‑‑­Where no such appeals were filed and instead Constitutional petition was filed against the Notification under S.4 of the Land Acquisition Act, 1894, Constitutional petition was dismissed.

Khalid Mehmood v. Collector of Customs 1999 SCMR 1881 ref.

Samiullah Jan for Petitioners.

A.‑G. for Respondents Nos. 1 to 3.

Maazullah Khan Barkandi for Respondents Nos. 4 to 6.

Date of hearing: 20th February, 2001.

2001 C L C 1890

[Peshawar]

Before Mian Shakirullah Jan, J

In re: MERGER/REORGANIZATION OF ISLAMIC INVESTMENT BANK

LIMTED AND FIRST ISLAMIC MODARABA

Company Case No. 7 of 2000, heard on 28th May, 2001.

Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 284(1), 285, 286, 287, 288 & 503(i)(c)‑‑‑Modaraba Companies and Modaraba (Floatation and Control) ‑ Ordinance (XXXI of 1980), S.10‑‑­Amalgamation of companies‑‑‑Approval of scheme of arrangement for amalgamation‑‑‑Both the petitioners were having distinct system of their business opposed to each other‑‑‑Business of the company intended to be merged had the business based upon Modaraba while the other had interest based business and the same was in complete deviation from the concept of Modaraba and in violation of object clause of the prospectus of the merging company‑‑‑Certificate holders of merging company subscribed in the fund of the Modaraba considering the same as Riba‑free business and the proposed merger would change the status of their investment altogether and it would be at the cost of those whose subscription in the term of share/amount might be less but their number might be large one‑‑‑Report of State Bank of Pakistan showed that the surviving company was financially unstable while according to Registrar Mo3uaba Companies, the merging company had paid dividend to its certificate holders‑‑‑Attempt of amalgamation was based upon mala fides, as the surviving company had poor performance and the State Bank of Pakistan had advised the company for re‑capitalising it and in order to meet such requirement the petition had been filed at the cost of certificate holders‑‑‑Effect‑‑‑Where the petition was filed at the cost of certificate holders, High Court refused to grant permission for amalgamation‑‑‑Petition was dismissed in circumstances.

PLD 2001 Kar. 5 ref.

Samiullah Jan for Petitioner.

Nemo for Respondent.

Date of hearing: 28th May, 2001.

2001 C L C 1899

[Peshawar]

Before Ijaz‑ul‑Hassan, J

IRSHAD ALI and another‑‑‑Petitioners

versus

MUNAWAR KHAN‑‑‑Respondent

Civil Revision No.37 of 2000, decided on 16th April, 2001.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Scope‑‑‑Jurisdiction under S.115, C.P.C. was discretionary and the Court would not interfere under S.115, C.P.C. to correct every irregularity in the exercise of jurisdiction, but only where grave injustice or hardship would result on account of non-­interference‑‑‑Section 115, C.P.C. would apply only to cases involving the illegal assumption, non‑exercise or the irregular exercise of jurisdiction and could not be invoked against conclusion of law or fact which had not in any way affected the jurisdiction of the Court, no matter, howsoever, erroneous, wrong or perverse the decision might be either on a question of fact or law, unless, of course, the decision involved a matter of jurisdiction‑‑‑If the Court had jurisdiction, it had jurisdiction to decide one way or the other and erroneous conclusion of law or fact could be corrected accordingly‑‑‑Court would be hesitant to interfere in revision if the order was just and proper though some irregularities might have been committed in its recording‑‑Court would also not interfere where substantial justice had been done between the parties and where the petitioner had taken shelter behind technicalities or where the discretion had been exercised properly.

(b) North‑West Frontier Province Pre‑emption Act (IX of 1987)‑‑‑

‑‑‑‑Ss. 6 & 13‑‑‑Civil Procedure Code (V of 1908), OXVII, R.3‑‑‑Suit for pre‑emption ‑‑‑Closing of evidence‑‑‑Partial evidence of the plaintiff was recorded, but his complete evidence could not be recorded for one reason or the other and evidence of plaintiff was closed under O.XVII, R.3, C.P.C.‑‑­Appellate Court set aside the order of the Trial Court and remanded the same with direction to examine witness of the plaintiff‑‑‑Defendant had challenged order of Appellate Court in revision‑‑‑Held, Appellate Court had passed order in the interest of safe administration of justice, complete justice had been done and the discretion had not been exercised by the Appellate Court capriciously or arbitrarily in allowing the plaintiff to examine witness and penal provisions could only be invoked if the delinquent party was guilty of contumacy‑‑‑Since plaintiff could not be held guilty of contumacy, order passed by Appellate Court was unexceptionable, and could not be interfered with by High Court.

Allah Ditta and others v. Hafiz Zaheer Ahmad and another 1993 CLC 1359; Siraj Din v. Lahore Development Authority and others 1992 CLC 102; Muhammad Bakhsh and 4 others v. Province of Punjab and 2 others 1994 SCMR 1836; Shaukat Nawaz v. Mansab Dar and another 1988 SCMR 851; Sabir Ali v. Muhammad Mansha and others 1998 MLD 2068; Muhammad Ishaq and others v. Fazal Sher and another 1988 SCMR 853; S. Tasleem Ahmad Shah v. Sajawal Khan and others 1985 SCMR 585; Zahoor Ahmad v. Mehra and others 1999 SCMR 105; Sheikh Abdul Aziz v. Bashir Ahmad 1989 CLC 103; Wali Ahmad v. Collector, Land Acquisition and others 1985 SCMR 224; Pakistan Burma Shell Ltd. v. Tariq. Brothers 1997 CLC 761 and Riasat Ali and 3 others v. Chaudhry Muhammad Mushtaq Ahmad Sindhu and 2 others 1999 CLC 1195 ref.

Mushtaq Ali Tahir Kheli for Petitioner.

Muhammad Ismail Tanoli for Respondent.

Date of hearing: 30th March, 2001.