CLC 2002 Judgments

2002 C L C 833

[N.‑W.F.P. Bar Council Tribunal]

Before Chief Justice Mian Shakirullah Jan, Chairman Muhammad Alam and Saeed Akhtar, Members

AURANGZEB, SUB‑DIVISIONAL EDUCATION OFFICER, SWABI‑‑‑Complainant

versus

ISTIKHAR ALI ‑‑‑Respondent

Complaint No.T/31 of 1998, decided on 11th January, 2002.

Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S. 41‑‑‑Misconduct‑‑‑Jurisdiction of Bar Council Tribunal ‑‑‑Scope‑‑­Respondent was alleged to be a school teacher and was engaged in legal practice‑‑‑Respondent only admitted his being a school teacher‑‑­Contention of the respondent was that although he had been a law graduate yet he was neither, enrolled as an Advocate nor he was engaged in legal practice and challenged the proceedings before the Tribunal‑‑­Validity‑‑‑Jurisdiction of Bar Council Tribunal had been conferred by S.41 of the Legal Practitioners and Bar Councils Act, 1973, and the rules framed thereunder‑‑‑Tribunal could take action under S.41 of the Legal Practitioners and Bar Councils Act; 1973, against a person who was enrolled as alt Advocate‑‑‑Where the respondent did not appear on any roll of the Bar Council, the Tribunal had no jurisdiction to entertain the complaint regarding allegations that the respondent lead been drawing salary from the Education Department ‑‑‑Complaint was returned to the petitioner in circumstances.

Akhtar Naveed; Dy.A.‑G. for the Government of N.‑W.F.P.

Fazal Elahi Khan for the Complainant.

Amjad Ali for Respondent.

Date of hearing : 14th December, 2001.

2002 C L C 1907

[N.‑W.F.P. Bar Council Tribunal]

Before Justice Muhammad Qaim Jan Khan, Chairman, Muhammad Alam Khan and Said Rehman, Members

GULZADA‑-‑Complainant

versus

JAMIL KHAN, ADVOCATE‑‑‑‑Respondent

Civil Miscellaneous No.6 of 2002 in Complaint No.T/29 of 2001, decided on 29th June, 2002.

(a) Civil Procedure Code (V of 1.908)‑‑‑

‑‑‑‑O. IX, R., 6‑‑‑Ex parte proceedings, joining of‑‑‑Scope‑‑‑When a person is proceeded ex parte, he can join the proceedings at any stage of the case.

Azizullah and others v. Arshad Hussain and others PLD 1975 Lah. 879 rel.

(b) Legal Practitioners and Bar .Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S. 43‑‑‑Civil Procedure Code (V of 1908), O.IX, R.7‑‑‑Ex parte proceedings, setting aside of‑‑‑Non‑service of process‑‑‑Complaint was filed against the applicant (Advocate) and the ex parte proceedings were initiated by the Disciplinary Committee against him‑‑‑Neither the applicant, nor his clerk was served for the date fixed by the Disciplinary Committee‑‑‑Effect‑‑‑Law insists decision on merits on the well‑known maxim of law, "that nobody should be condemned 'unheard" ‑‑‑Tribunal noted that the maxim was well‑entrenched in our legal system and the same was to be saved from being violated‑‑Order of ex parte proceedings passed against the applicant by the Disciplinary Committee was set aside‑‑‑Application was allowed in circumstances.

Azizullah and others v. Arshad Hussain and others PLD 1975 Lah. 879 rel.

Abdul Haq for the Complainant.

1. Shaukat Hayat; A. A.‑G. for the Government of N.‑W. F. P.

Muhammad Siyar for Respondent.

2002 C L C 1922

[N.‑W.F.P. Bar Council Tribunal]

Before Justice Muhammad Qaim Jan Khan, Chairman, Muhammad Alam Khan and Syed Rehman Khan, Members

Mst. ZARQA SHAHEEN ‑‑‑Complainant

Versus

KHURSHID AHMAD KHAN, ADVOCATE‑‑‑Respondent

T. A. No. 13 of 2000, decided on 29th June, 2002.

(a) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S. 41(4)‑‑‑Investigation of complaint‑ ‑‑Procedure ‑‑‑Duty of Disciplinary Committee‑‑‑If the Members of Disciplinary Committee an receipt of complaint come to the conclusion that the same does not disclose a cause of action, the Committee under S.41(4) of Legal Practitioners and Bar Councils Act, 1973, can summarily dismiss the complaint‑‑‑Once cognizance is taken by the Disciplinary Committee it is bound to make inquiry and give the parties an opportunity of hearing and only then either reject the complaint or refer the same to the Tribunal for final adjudication.

(b) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S. 43(3)‑‑‑Investigation by Tribunal‑‑‑Preliminary issues, deciding of‑‑‑Tribunal or any member empowered by the Chairman is invested with jurisdiction to consider and decide preliminary issues under S.43(3) of Legal Practitioners and Bar Councils Act, 1973.

(c) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑Ss. 41 & 43‑‑‑Complaint‑‑‑Summary disposal‑‑‑Complaint against Advocate was dismissed by Disciplinary Committee as being not maintainable‑‑‑Contention of the complainant was that the Advocate had submitted a detailed written statement controverting the allegations contained in the complaint which could only be resolved by producing evidence pro and contra‑‑‑Validity‑‑‑Order passed by the Disciplinary Committee was illegal and without jurisdiction and was liable to be struck down‑‑‑Tribunal remanded the case to the Disciplinary Committee with direction to decide the same afresh on merits after giving the parties opportunity to produce evidence‑‑‑Appeal was allowed accordingly.

Muhammad Ishaq, General Attorney for the Complainant.

Respondent in person.

Sardar Shaukat Hayat, Asstt. A.‑G. for the Government of N.‑W.F.P.

2002 C L C 1931

[N.‑W.F.P. Bar Council Tribunal]

Before Justice Muhammad Qaim Jan Khan, Chairman, Muhammad Alum Khan and Syed Rehman, Members

Mst. SURRIYA BEGUM‑‑‑Complainant

versus

MUHAMMAD ASLAM, ADVOCATE‑‑‑Respondent

Complaint No.T/14 of.2000, decided on 29th June, 2002.

Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S. 41‑‑‑Pakistan Legal Practitioners and Bar Councils Rules, 1976, R.148‑‑‑Professional misconduct‑‑‑Representing conflicting interests‑‑‑Withdrawal of complaint‑‑‑Advocate was close relative of the complainant who was appointed special attorney by her‑‑‑Grievance of the complainant was that the Advocate had accepted brief of the opponent of the complainant and such act of the Advocate was a professional misconduct‑‑‑Plea raised by the Advocate was that the matter had been compromised by the complainant‑‑‑Validity‑‑‑Advocate was morally bound not to have betrayed the trust reposed by the complainant in him‑‑­Any violation of the sacred trust by the Advocate would amount to professional misconduct‑‑‑Withdrawal of complaint would not exonerate the Advocate because in a case of misconduct withdrawal could not exonerate the Advocate‑‑‑Withdrawal of complaint could be taken as mitigating circumstance while determining the quantum of punishment‑‑‑Tribunal found the Advocate guilty of professional misconduct but taking into consideration the compromise arrived at between, the parties only reprimanded him‑‑‑Appeal was disposed of accordingly.

Mst. Surriya v. Sohail, Advocate, Peshawar 1999 YLR 2315; 1992 CLC 1556; lrshad Khan v. Gohar Rahman Khatak, Advocate 2000 MLD 1264; Wajid Ali v. Zafar Khalid, Advocate 2000 MLD 1275 and Ali Rehman v. Zaheer‑ud‑Din‑Baber, Advocate 2001 MLD 895 ref.

Nemo for the Complainant (being exempted)

Respondent in person.

Sardar Shaukat Hayat, A.A.‑G. for the Government of N.‑W. F. P.

2002 C L C 1632

[Board of Revenue, N.W.F.P.]

Before Mazhar Ali Shah, Senior Member

AMIRUL MULK OF CHARSADDA‑‑‑Petitioner

Versus

TAUHEED JAN OF CHARSADDA‑‑‑Respondent

Case No.6 of 2002, decided on 18th April, 2002.

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

‑‑‑‑S. 117‑‑‑Nishan Dehi or demarcation of land‑‑‑Application for Nishan Dehi or demarcation of land was resisted on ground that there was no provision to the Revenue Law for "Nishan Dehi"‑‑‑Validity‑‑‑Provision of S.117 of West Pakistan Land Revenue Act, 1967 had authorized Revenue Officer to define limits of any estate or any holding on application of any person‑‑‑Collector had done no wrong if he had ordered for defining limits of property of applicant on his application which he made for ascertaining whether or not any outsider had encroached on his property and there was no wrong with application filed by applicant for Nishan Dehi of his land‑‑‑Word "defining" had been used in S.117 of West Pakistan Land Revenue Act, 1967 as to mean "to limit", "to make clear in outline", "to determine" and "to describe"‑‑­Revenue Officer under S.117 of West Pakistan Land Revenue Act, 1967 on an application of any interested party thus could conduct survey and define limits of estate or any holding or field no matter if one would call word "define" with any of meaning of the word.

(b) Words and phrases‑‑‑

‑‑‑‑"Define"‑‑‑Connotation.

Muhammad Ullah for Petitioner.

Muhammad Alain for Respondent.

2002 C L C 376

[Board of Revenue (Punjab)]

Before Muhammad Ayub Malik, Member (Judicial‑IV)

WALI MUHAMMAD ‑‑‑Petitioner

versus

MANZOOR HUSSAIN ‑‑‑ Respondent

R. O. R. ‑ No.146 of 1995, decided on 9th April, 2001.

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

‑‑‑‑S. 164‑‑‑Obtaining land on Mustajri‑‑‑Non‑payment of Mustajri money‑‑‑ Petitioner made application to Collector that respondent, who obtained land from him on Mustajri, did not pay Mustajri money for two years‑‑‑Collector decreed amount claimed by the petitioner without ascertaining the basic issue and his order did not indicate as to the basis on which he calculated the decreed amount‑‑‑Appeal filed against order of the Collector was accepted by Additional Commissioner on the ground that the petitioner had received disputed money through someone, but did not mention name of that person‑‑‑Additional Commissioner did not take the case in. its correct perspective as the same was a case of Mustajri and not that of relationship of landlord and tenant‑‑‑Order passed by Collector was a badly non‑speaking order which was passed arbitrarily and findings of the Collector were based on no worthwhile and acceptable evidence‑‑‑Additional Commissioner also did not decide matter in appeal in its correct perspective‑‑‑Orders of both the Collector and of Additional Commissioner being not maintainable were set aside in revision and case was remanded to be decided afresh in accordance with law.

Zahid Hussain Khan for Petitioner.

G.H. Khan for Respondent.

Date of hearing: 19th February, 2001.

2002 C L C 1230

[Board of Revenue Punjab]

Before Mian Muhammad Jamil, Member (Judicial‑II)

SARDAR MUHAMMAD‑‑‑Petitioner

versus

MEMBER (JUDICIAL‑II), BOARD OF REVENUE, PUNJAB, LAHORE and another‑‑‑Respondents

R. O. R. No. 1232 of 1988, decided on 23rd July, 2001.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 19‑A‑‑‑Succession to tenancy‑‑‑All legal heirs after death of tenant, were entitled to succeed to whatever rights persisted to the tenant‑‑­Tenant having died before application for proprietary right or, even before declaration of eligibility for proprietary rights in respect of leased' property, right of tenant was that of only a temporary tenant under' 15 Years' Lease Scheme‑‑‑Said temporary lease/tenancy would devolve upon all legal heirs of deceased tenant.

Riaz Hussain Khan for Petitioner.

Malik Ghulam Siddique Awan for Respondents.

2002 C L C 1980

[Board of Revenue, Punjab]

Before Tariq Mahmud, Member (Revenue)

MUHAMMAD USMAN‑‑‑Petitioner

versus

PROVINCE OF PUNJAB through Collector, Hafizabad and 3 others‑‑‑Respondents

R.O.R. Nos.2149 and 2150 of 2000, decided on 7th January, 2002.

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

‑‑‑‑Ss. 40, 41, 42, 52, 163 & 164‑‑‑Altering entry in Jamabandi‑‑‑No disputed entry in Jamabandi should be altered either on ground of mistake or fraud except on basis of obvious clerical error or patent fact ‑‑‑Long­standing entries in Jamabandi supported by constructive and physical possession of a party, certainly were not open to changes through review proceedings at any time‑‑‑Variables impinging on any entry giving it a long‑standing character were to be weighed equally while determining "timing" for suo motu review of mutation‑‑‑Collector, if at all, had to exercise review power at any time, must satisfy that entries were not of long‑standing did not deny factum of continuous possession and did not need detailed evidence and cross‑examination‑‑‑Order passed at the back of petitioners could not be countenanced by Revisional Authority moreso when the same sought to alter an entry existing for 50 years.

Allah Bakhsh Gondal for Petitioners.

2002 C L C 1992

[Board of Revenue Punjab]

Before Muhammad Ayub Malik, Member (Judicial‑IV)

Mst. KHALIS BIBI‑‑ ‑Petitioner

versus

COMMISSIONER, MULTAN DIVISION MULTAN and others‑‑‑Respondents

R. O. R. No. 1013 of 1999, decided on 19th December, 2000.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 10‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.164‑‑­Allotment of land under Islamabad Oustees Scheme‑‑‑Land was allotted in Tehsil Burewala under Islamabad Oustees Scheme, but on filing declaratory suit by the previous occupant of the. land, allotment was cancelled ‑‑‑Allottee filed application to District Collector for alternate allotment of land situated in Tehsil Mailsir which was allotted to Lamberdar under the Pedigree Livestock Breeding Scheme in 1965 and was resumed in 1982‑‑‑Widow of successor Lamberdar had asserted claim on the said land, but District Collector allotted the same to the Oustees of Islamabad under Islamabad Oustees Scheme‑‑‑Allotment was cancelled on appeal and was allotted to the successor of Lamberdar by the Commissioner‑‑‑Validity‑‑‑Claim of allottee under Islamabad Oustees Scheme, requiring to be satisfied, allotment of land in dispute was rightly made to him by District Collector against his claim ‑‑‑Allottee had also deposited cost of land‑‑ ‑Successor of Lamberdar on no lawful ground could assert claim on disputed land under Pedigree Livestock Scheme as leases under said Scheme were governed by specific instructions of Board of Revenue and under those instructions leases in favour of only sitting lessees were to be extended under certain specified terms and conditions‑‑‑Land in question could not be allotted on lease to successor Lamberdar‑‑‑Commissioner in appeal having not indicated as to under which Rules/Policy he had ordered lease in favour of successor of Lamberdar, his order was declared without jurisdiction and was set aside in revision.

Dr. Ehsan‑ul‑Haq Khan for Petitioners.

Syed Anis Sadiq .for Respondent.

Date of hearing: 7th November, 2000.

2002 C L C 71

[Karachi]

Before Wahid Bux Brohi, J

Mrs. ASMAT BEGUM‑‑‑Applicant

versus

BADIUZZAMAN KHAN‑‑‑Respondent

Revision Application No.241 of 2000, decided on 23rd August, 2001.

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

‑‑‑‑O. XVII, Rr.2 & 3‑‑‑Prominent factors requisite for application of O.XVII, R.3, C.P.C. in contradistinction with R.2‑of O.XVII, C.P.C. enumerated.

The predominant factors requisite for the application of rule 3 in contradistinction with rule 2 of Order XVII, C.P.C. would be as follows:‑

(1) The case must have been adjourned or time granted on the request of a party.

(2) The purpose of granting time/adjournment to the party shall be: (i) to produce his evidence, (ii) to call the attendance of his witnesses, or (iii) to perform any, other act necessary to further progress of the suit.

(3) The party to whom adjournment/time .was granted defaulted/failed to perform the act(s) for which the adjournment/time was granted.

(4) There shall be some material on record and the Court shall proceed to decide the suit forthwith on the basis of such material.

(5) Such decision shall be made within a reasonable time if not on that very day.

(6) All these conditions shall co‑exist and absence of any of these conditions shall exclude the applicability of this rule and in that event in case of default the case may, fall within the domain of rule 2 of Order WIT, C.P.C.

Abdul Aziz's case PLD 1971 SC 434; Qutub Din's case PLD 1991 SC 1109 and Abdul Shakoor's case PLD 1963 (W.P.) Kar. 356 ref.

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

‑‑‑‑O. XVII, Rr.2 & 3 read with Ss.96, 115, O.IX, R.9 & O.XLIII, R.1‑‑‑Dismissal of suit for want of evidence‑‑‑Trial Court, while refusing to grant adjournment to plaintiff dismissed suit on 22‑3‑1999 for want of evidence‑‑‑Plaintiff filed application under O.IX, R.9, C.P.C. for recalling the order, which was dismissed being not maintainable‑‑­Plaintiff's appeal under O.XLIII, R.1, C.P.C. was also dismissed on the ground that suit was dismissed for want of evidence, against which the only remedy was to file regular appeal and not miscellaneous appeal‑‑­Contention was that order of Trial Court squarely fell within scope of O.XVII, R.2, C.P.C. against which miscellaneous appeal was maintainable‑‑‑Validity‑‑‑Trial Court on 11‑3‑1999 after framing issues adjourned the proceedings to 22‑3‑1999 with direction to parties to file their list of witnesses/documents within 7 days‑‑‑Neither such adjournment was granted on plaintiff's request nor Trial Court while dismissing suit had touched merits of the case, thus, it was not an order within purview of O.XVII, R.3, C.P.C., but it could be in substance an order under O. XVII, R.2, C.P.C. hence it was not a decree against which no appeal was required to be filed under S.96, C.P.C.‑‑‑Plaintiff's application under O.IX, R.13, C.P.C. was competent, which was illegally dismissed by Trial Court‑‑‑Both the impugned orders were illegal and had resulted in grave miscarriage of justice, as such were amenable to revisional jurisdiction of High Court‑‑‑Impugned orders were set aside and case was remanded to Trial Court for its decision in accordance with law.

Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474; Naseem Javed v. National Bank of Pakistan PLD 1985 Pesh. 91 and National Bank of Pakistan v. Abdul Majeed 1984 CLC 2893 ref.

(c) Administration of justice‑‑‑

‑‑‑‑ Law favours decision on merits rather than on technicalities unless the party concerned is guilty of gross negligence.

Zahoor Ahmed v: Mehra 1999 SCMR 105 rel.

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

‑‑‑‑O. XVII, R.2 read with S.96 & O.XLIII, R.1‑‑‑Appeal against order under O. XVII, R. 2, C.P.C. does not lie; appropriate remedy is to seek redress under O.IX, R.9 or 13, C.P.C. as the case may be.

Zahoor Ahmed v. Mehra 1999 SCMR 105 rel.

Shabbir Ahmed Shaikh for Applicant.

Muhammad Ali Abbasi for Respondent.

Date of hearing: 10th August, 2001.

2002 C L C 78

[Karachi]

Before Shabbir Ahmed, J

Messrs SHERANI BROTHERS‑‑‑Appellant

versus

Mst. SARWAT AKHTAR and another‑‑‑Respondents

First Rent Appeal No.630 of 2000, decided‑ on 4th October, 2000.

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

‑‑‑‑Ss. 17 & 24‑‑‑Eviction of tenant‑‑‑Denial of relationship of landlord and tenant‑‑‑Eviction application filed by landlady was resisted by appellant on the ground that he was looking after the premises as attorney of his principal, who after purchasing same from landlady through agreement to yell, rented it out to his brother‑‑Rent Controller Allowed the eviction application after holding her as landlady, respondent as her tenant and appellant as sub‑lettee‑‑‑Contention was that in suit pending between the parties, Civil Court had restrained appellant's eviction from premises except in due process of law‑‑‑Validity‑‑‑Application for eviction was permissible under law, as such judgment of Civil Court would not come in way of landlady for initiating proceedings as provided under S.17 of Cantonments Rent Restriction Act, 1963‑‑‑Rent Controller being a Court of limited jurisdiction had no jurisdiction to determine the issue, whether landlady had agreed to sell the premises to principal of appellant‑‑‑Suit filed by principal of appellant for specific performance of agreement to sell against landlady was dismissed under O.XVII, R.3, C.P.C., which judgment was not further challenged in appeal‑‑Dismissal of such suit had falsified the plea taken by appellant that his principal was the owner/landlord‑‑‑Finding recorded by Rent Controller was sound, proper and based on evidence on record‑‑‑High Court dismissed appeal in circumstances.

Rehmatullah v. Nasir Khan and 7 others 1991 MLD 1011 and Malik Abdul Qayyum v. Muhammad Hussain 1990 SCMR 1716 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 163‑‑‑Special oath‑‑‑Court can decide the matter on special oath, provided both the parties are agreeable‑‑‑In absence of any such agreement, Court cannot force an unwilling party for decision on special oath.

Umar Farooq Khan for Appellant.

Ahmed Pirzada for Respondents.

Date of hearing: 4th October, 2000.

2002 C L C 96

[Karachi]

Before Mushir Alam, J.

Mrs. RAHAT ALI ‑‑‑Plaintiff

versus

Dr. SAEEDA REHMAN‑‑‑Defendant

Suit No.562 of 1992, decided on 12th July, 2001.

(a) Tort‑‑‑

‑‑‑‑ Negligence by professionals‑‑‑Damages‑‑‑Recovery of‑‑‑In case of such negligence generally Courts are very slow in attributing negligence to professionals like doctors and surgeons in performance of their regular duties‑‑‑General presumption is attracted that the professionals have performed their duties to the best of their abilities and with due care and caution‑‑‑Where it is established through cogent evidence that a doctor or a surgeon failed to take necessary precaution, due care and attention or acted carelessly and negligently, then action in tort is maintainable.

(b) Maxim‑‑‑

‑‑‑‑"Res ipsa loqitur"‑‑‑Applicability‑‑‑Towel wag left inside the abdomen of the plaintiff by surgeon and the same was recovered/removed by another surgeon who appeared in the witness‑box and testified such facts, such is a circumstance which speaks for itself and the doctrine of res ipsa loqitur (facts speak for themselves) is attracted.

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

‑‑‑‑O. VIII, Rr. 1 &. 5‑‑‑Written statement‑‑‑Plea raised by defendant‑‑‑Proof‑‑‑Such plea not supported by any evidence ‑‑‑Effect‑‑­Defendant despite opportunity failed to appear or adduce any evidence in support of plea raised in written statement‑‑‑Effect‑‑‑Defence plea based on factual aspect, howsoever, plausible was of no significance and value, without supportive and corroborative, evidence‑‑‑Plea raised by the defendant was not proved in circumstances.

(d) Tort‑‑‑

‑‑‑‑ Vicarious liability (as under law of tort)‑‑‑Defined‑‑‑Vicarious liability under tort means financial liability a person is made to suffer or bear for the actionable wrong or conduct of another based on nature of either fiduciary or contractual relationship between the two.

(e) Tort‑‑‑

‑‑‑‑ Tortfeasor‑‑‑Doctrine of' vicarious liability ‑‑‑Applicability‑‑­Wrongdoer cannot seek refuge behind the doctrine of vicarious liability‑­‑Victim or those affected by the injury, only can claim compensation from the principal, master or insurance company as the case may be, who by virtue of such relationship with wrongdoer, may be considered joint tortfeasor‑‑‑Liability of wrongdoer is co‑extensive with that of his principal, master or, indemnifier.

(f) Tort‑‑‑

‑‑‑‑‑ Tortfeasor‑‑‑Proceedings against‑‑‑Prerogative of the plaintiff to proceed against the principal wrongdoer alone or join other tortfeasor.

(g) Tort‑‑‑

‑‑‑‑Damages‑‑‑Recovery of loss‑‑‑In an action for damages in tort, a person injured, physically or otherwise, is entitled to be compensated both for pecuniary loss, as well as for non‑pecuniary loss‑‑‑Pecuniary loss is firstly relatable to the loss of earning of the injured during period of such injury or even as an aftermath of the same, secondly injured is also entitled for the reimbursement of all the actual expenses which he Incurred in treatment or curing such injury including medical/hospitalisation expenses etc.

Abdul Qadir v. S.K: Abbas Hussain PLD 1997 Kar. 566 and Nazar Ali Siddiqui v. Pakistan 1986 CLC 1370 ref.

(h) Tort‑‑­‑‑‑‑

Damages‑‑‑Non‑pecuniary losses‑‑‑Classification‑‑‑Such losses may be classified as pain and suffering; loss of amenities of life and loss of expectation of life.

(i) Tort‑‑‑

‑‑‑‑ Damages ‑‑‑Suit for damages‑‑‑Onus to prove‑‑‑Burden, in such suit, is on the plaintiff to plead and establish his suffering and damages.

(j) Qanun‑e‑Shahadat (10 of 1984)‑‑

‑‑‑‑Art. 125‑‑‑Civil Procedure Code (V of 1908), O. VI, R.2‑‑‑Tort‑‑­Damages‑‑‑Determination of ‑‑‑Any fact which enables the Court to determine the amount of damages, which ought to be awarded is relevant

under the provisions of Art.125 of Qanun‑e‑Shahadat, 1984‑‑‑Necessary for the ,plaintiff under the provisions of O.VI, R.2, C.P.C. who is interested to recover damages, on account of any injury suffered at the hand of wrongdoer, to plead with clarity all such facts upon which he relies in support of his claim for damages and to quantify the amount claimed under each head‑‑‑Mere assertion claiming inflated amount without corroborating evidence is of no avail to the plaintiff.

(k) Tort‑‑‑

‑‑‑‑Damages‑‑‑Suit for‑‑‑Pecuniary loss‑‑‑Proof of‑‑‑During operation, towel was left inside abdomen of the plaintiff by the defendant surgeon‑‑­Plaintiff had to again undergo surgery for removal of the towel by another surgeon‑‑‑Plaintiff was housewife and non‑working woman, she did not lead any evidence, either to show that, she suffered any pecuniary loss on account of her injury nor it was shown that on account of her injury or incapacitation during period of her injury or ailment any other family member while attending her suffered financially ‑‑‑Effect‑‑­Plaintiff could not claim to be awarded any compensation or damages on such count, as none were established to have been incurred or sustained by her or her husband‑‑‑High Court took notice of the injury sustained by the plaintiff and the pain and agony suffered by her and considered the aftermath of ~ach injury as well as incapacitation of the plaintiff for such injury‑‑‑Compensation was awarded keeping in view all such factors‑‑‑Suit was decreed accordingly.

Achutrao Haribhan Khodwa and others v. State of Maharashtra and others AIR 1996 SC 2377; Kaneez Begum v. KESC 2001 CLC 875; Mahon v. Osborne King's Bench Division 1993 p.14 and Morris v. Winsbury While King's Bench Division 1937, p.494 ref.

(l) Tort‑‑‑

‑‑‑‑Damages‑‑‑Reimbursement‑‑‑Claim of‑‑‑In cases where injured is compensated/reimbursed for such treatment by a third person like employer, or by insurance company, as the case may be, then the injured cannot be allowed to claim any reimbursement from the wrongdoer on such count‑‑‑Only the injured who has suffered pecuniary loss personally is entitled to claim reimbursement from the wrongdoer‑‑‑Pecuniary compensation is awarded to reimburse the actual expenses incurred and not to make profit out of injury.

(m) Tort‑‑‑

‑‑‑‑Damages‑‑‑Non‑pecuniary losses‑‑‑Assessment of‑‑‑Facts to be considered, enumerated‑‑‑Such losses are by nature discretionary and it is not possible to lay down any formula or yardstick by which it can be measured or translated in terms of money‑‑‑Attending circumstances, age, sex, nature, intensity, duration, resulting pain and possibility of total or partial recovery aggravating or mitigating condition, effect on overall quality of life of an injured person may lead, are some of the relevant considerations for determining fair and reasonable compensation for such loss or suffering‑‑‑Discretion to award such compensation must be exercised judicially keeping in view all' the attending circumstances varying from case to case as damages under such head in tort are consolatory and compensatory but not punitive.

(n) Tort‑‑‑

‑‑‑‑Damages‑‑‑Award of compensation‑‑‑Considerations‑‑‑Scope‑‑‑In order to mitigate the suffering and the pain of the injured, the award of compensation is remedial and consolatory, and the same is not inflicted as a punitive measure on the wrongdoer as cost for mitigating such suffering and pain may vary from person to person, vocation to vocation and place to place depending on other attending circumstances as well as in each case.

Mrs. Shiraz Iqbal for Plaintiff.

Nayyar Ziauddin for Defendant.

Dates of hearing: 19th April and 4th May, 2001.

2002 C L C 113

[Karachi]

Before Wahid Bux Brohi, J

ADNAN AZIZ‑‑‑Petitioner

versus

CIVIL/FAMILY JUDGE, EAST KARACHI‑‑‑Respondent

Constitutional Petition No.S‑497 of 2000, decided on 6th August, 2001.

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

‑‑‑‑Ss. 10 & 12‑‑‑Reconciliation proceedings‑‑ ‑Failure to record details of dialogue between the parties‑‑‑Mention of the fact that post‑trial and pre‑trial reconciliation proceedings failed was enough and it was not necessary for Family Court to record details of dialogue and harsh words used by the parties during proceedings‑‑‑Failure of such trials would indicate that all possible efforts to bring about reconciliation and to persuade the parties to live as spouses within the limits of Allah, culminated in failure.

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

‑‑‑‑S. 5 & Sched.‑‑‑Dissolution of marriage by way of Khula'‑‑‑Aversion and hatred‑‑‑Proof of‑‑‑Evidence recorded on oath was sufficient to display aversion and hatred against husband which was a pre‑eminent consideration in the matter of divorce by Khula.

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

‑‑‑‑S. 5 & Sched.‑‑‑Dissolution of marriage by way of Khula'‑‑‑Aversion and hatred‑‑‑Duty of Family Court‑‑‑Court has to reach the level of complete satisfaction that there existed disliking or hatred resulting in serious disharmony and incompatibility between the parties to live together within the limits of Allah.

Aali v. Additional District Judge‑I 1986 CLC 27 ref.

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

‑‑‑ S. 5 & Sched.‑‑‑Dissolution of marriage ‑‑‑Khula'‑‑‑Version of wife‑‑‑Need for due consideration by Court‑‑‑Scope‑‑‑Where Family Court considered all the ambient circumstances including the attitude of the wife and had come to the conclusion that at the time of recording of evidence the wife displayed intense hatred on her face, wife was entitled to right of divorce by way of Khula' ‑‑‑While deciding the question of dissolution of marriage on the ground of Khula', the Courts would have to assign due significance to the version of wife and unless the same appeared to be a flagrantly whimsical and fanciful, desire of wife to secure the dissolution of marriage, her words could not be struck down or ignored.

Rehmatullah v. Mst. Shamim Akhtar 1989 CLC 3; Shahid Javid v. Sabba Jabeen 1991 CLC 805; Mst. Rashidan Bibi v. Bashir Ahmed PLD 1983 Lah. 549; Sughran Begum v. Additional District Judge 1992 CLC 1733 and Abdul Ghafoor v. Judge, Family Court 1999 SCMR 2631 ref.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.l99‑‑?Constitutional petition‑‑‑Dissolution of marriage by way of Khula'‑‑?Findings of Family Court‑‑‑Wife proved aversion and hatred against her husband in suit for dissolution of marriage‑‑‑Family Court dissolved the marriage on the basis of Khula'‑‑‑Validity‑‑‑Where the question of fact had been satisfactorily discussed and appraised, High Court declined to interfere with the findings of Family Court granting the dissolution of marriage by way of Khula'‑‑‑Petition was dismissed in circumstances.

Abdul Ghafoor v. Judge, Family Court 1999 SCMR 2631 and Muhammad Rafiq v. Kaniz Fatima 2000 SCMR 1563 ref.

Amir Malik for Petitioner.

Mehmood Hussain for Respondent.

Date of hearing: 19th March, 2001.

2002 C L C 147

[Karachi]

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

ZAHEERUDDIN SHEIKH and 30 others‑‑‑Petitioners

versus

UNITED BANK LIMITED ‑‑‑‑Respondent

Constitutional Petitions Nos.D‑394. and D‑415 of 1999, decided on 17th May, 2001.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Retrenchment Scheme prepared by the Bank‑‑‑Petitioners were retrenched by the Bank in compliance of the scheme‑‑‑Petitioners invoked the Constitutional jurisdiction of High Court for enforcement of statements made by the Prime Minister of the Country whereby he promised to provide employment to the retrenched employees of the Bank ‑‑‑Validity‑‑­Question of the legality and propriety of the termination/retrenchment of the petitioners by the Bank did not require to be considered as the matter stood finally decided by the Supreme Court in case titled United Bank Limited v. Shamim Ahmed Khan and 41 others reported as PLD 1999 SC 990, pronouncing that the Bank had the right and the authority to retrench the petitioners, who were found to be in excess of their requirement‑‑‑Petitioners would also be entitled to the benefits/relief provided by the Supreme Court to other retrenched employees of the Bank‑‑‑Constitutional petition was not maintainable in circumstances.

United Bank Limited v. Shamim Ahmed Khan and 41 other PLD 1999 SC 990 rel.

Mian Muhammad Nurullah and 2, others v. District Magistrate, Lahore and 3 others 1970 SCMR 214; Zohra and 5 others v. The Government of Sindh, Health Department through its Secretary, Sindh Secretariat, Karachi and another PLD 1996 Kar. 1 and Akram Zahoor v. Federation of Pakistan 2000 SCMR 1232 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Establishing a legal right‑,‑‑Pre‑condition‑‑‑Party invoking the Constitutional jurisdiction of High Court has to establish the existence of a clear legal right and further that such legal right must be so clear so as not to admit of a reasonable doubt or a controversy‑‑‑Such legal right must be a personal and individual right and that it must be . a statutory right or a right recognized by law‑‑‑Jurisdiction of High Court under Art.199 of the Constitution can be invoked only by an aggrieved person and a person can be said to be aggrieved only when he is denied a legal right by someone, who has a legal duty to perform relating to the right‑‑­Aggrieved party for invocation of the Constitutional jurisdiction of High Court, has to establish not only a legal right but a right which is justiciable in a Court of law, in the absence of which no order can be issued under Art.199 of the Constitution‑‑‑Incumbent upon the party invoking the Constitutional jurisdiction High Court under Art.199 of the Constitution to satisfy that some illegal wrong had been inflicted or was about to be inflicted on the petitioner.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Promise/desire of Prime Minister‑‑‑Petitioners invoked the Constitutional jurisdiction of High Court for enforcement of promise, offer or announcement of Prime Minister‑‑‑Validity‑‑‑Such promise, offer or announcement could at the best be treated as a desire or intention on the part of the Prime Minister to provide relief to the involuntarily retired employees of the nationalized Banks‑‑‑Such intention or desire did not have the backing or support of any statute, law or the rules and regulations framed under any statute‑‑‑Mere words of the Prime Minister without having the support or backing of any law or statutory provision would not amount to conferring any legal right on or vesting any right in the petitioners, which could be enforced by a Court of law.

Majlis Intizamia Jamia Masjid, Ghulam Muhammadabad Colony, Lyallpur v. Secretary to Government of West Pakistan, Communication and Works Department, Lahore PLD 1967 Lah. 709; Haji Ghulam Zamin and another v. A.B. Khondkar and others PLD 1965 Dacca 156 and Haji Ghulam Sabir v. Pan Allotment Committee and another PLD 1967 Dacca 607 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Executive order/policy decision‑‑­Scope‑‑‑Every executive order for being enforceable or for conferring legal rights on the citizens or a class of citizens must have the backing of law‑‑‑Policy decisions taken by the Executive are not justiciable in exercise of the Constitutional jurisdiction of High Court or before any Court of law and can only be resolved by Executive or the Legislature.

M.D. Tahir v. Chief Secretary, Government of Punjab and another 1995 CLC 1687 ref.

Abdul Mujeeb Pirzada for Petitioners. Shahid Anwar Bajwa for Respondent No.3.

Date of hearing: 6th February, 2001.

2002 C L C 166

[Karachi]

Before Saiyed Saeed Ashhad, C.J. and Mushir Alam, J

Messrs DADABHOY CEMENT INDUSTRIES LIMITED and others‑‑‑Appellants

versus

Messrs NATIONAL DEVELOPMENT FINANCE CORPORATION‑‑‑Respondent

Special High Court Appeals Nos.159 to 162 of 2001; decided on 19th September, 2001.

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

‑‑‑‑S. 12(2)‑‑‑Setting aside of judgment and decree‑‑‑Plea of fraud and misrepresentation‑‑‑Essential requirement‑‑‑Courts possess inherent powers to set aside their own judgment, decree or final order which had been obtained fraudulently by way of misrepresentation and concealment/ suppression of facts or acting collusively‑‑‑Provisions of S.12(2), C.P.C. provide an aggrieved person with a right to file application for recalling or setting aside a decree, final order or judgment which had been obtained by fraud or misrepresentation‑‑‑Essential requirement for such an application is that full particulars of. fraud and misrepresentation must be given in the application‑‑‑Provisions of S.12(2), C.P.C. are not attracted when the alleged fraud or misrepresentation was not in connection with the proceedings but prior to their initiation‑‑‑Party alleging, commission of fraud or misrepresentation in obtaining the decree, judgment or final order has to state facts and circumstances which could warrant a presumption or the possibility of commission of fraud or representation.

Abdur Rehman Khan v. Muhammad Altaf and 3 others 1997 CLC 1260 ref.

(b) Fraud‑‑‑

‑‑‑‑ Main ingredient of fraud is intention to deceive or to induce the person by misrepresentation to enter into a contract on a false belief‑‑‑Fraud also includes untrue statement by one who did not believe it true, and active concealment of facts.

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

‑‑‑‑S. 12(2)‑‑‑Setting aside of judgment and decree‑‑‑Plea of fraud‑‑‑ Validity‑‑‑Where the facts on the basis of which the validity of decree, judgments or final order has been questioned on the ground of fraud or misrepresentation, application under S.12(2), C.P.C. on the basis of such assertion is not sustainable if the facts were within the knowledge of the aggrieved party during the course of proceedings.

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

‑‑‑‑S. 12(2)‑‑‑Consent decree, setting aside of‑‑‑Plea of fraud and misrepresentation‑‑‑Suit for recovery of Bank loan was decreed in terms o€ compromise arrived at between the parties‑‑‑Borrower filed application under S.12(2), C.P.C. on the ground that the financial institution had committed a fraud while calculating the outstanding amount towards the borrower hence the decree was liable to be set aside‑‑‑Mode in which the financial institution had determined the principal amounts as against the various loans/advances/ finance facilities and charge of further mark‑up thereon as appearing in the compromise was within the knowledge of the borrower‑‑‑Application under S.12(2), C.P.C. filed by the borrower was dismissed by the Banking Court‑‑‑Contention of the borrower was that the financial institution had made misrepresentation, concealment of facts and making statements contrary to the Circulars issued by the State Bank of Pakistan in that regard‑‑‑Validity‑‑‑Statements and disclosures made by the financial institution could not be said to be fraudulent or having been made by way of misrepresentation as the borrower had the knowledge of such facts‑‑‑Where the borrower, at no stage, objected to the veracity and correctness of such facts /representations, thereby implicitly accepting them to be correct‑‑‑Mode of calculation of the principal amount and determination thereof together with the stipulation for charging further mark‑up, in the present case could not be said to be fraudulent or result of concealment or suppression so as to amount to misrepresentation‑‑­Financial institution in the circumstances could not be held responsible for having made misrepresentation, concealment or suppression of fact and making statements contrary to the Circulars having sanction of law‑‑­Allegation of fraud, misrepresentation,' concealment and/or suppression of facts and making statements contrary to law was not established and accordingly the consent decree based on "Memorandum of Understanding" was not suffering from any illegality as the same was not the result of fraud. misrepresentation of statements contrary to any document having sanction of law and it could not have been challenged on the ground of fraud and misrepresentation under S.12(2), C.P.C.‑‑­Where neither the compromise nor the consent decree was based on fraud, misrepresentation and/or concealment of facts nor it was a case of "want of jurisdiction" as envisaged in S.120), C.P.C. recourse to S.12(2), C.P.C. was not permissible‑‑‑Appeal was dismissed in circumstances.

Zafar Ahmad and 5 others v. Government of Pakistan through Secretary, Ministry of Production, Islamabad and 6 others 1994 MLD 1612; Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 7?2; Union Carbide Corporation and others v. Union of India and others (1991) 4 SCC 584; State of Punjab (now Haryana) and others v. Amar Singh and another (1974) 2 SCC 70; Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.‑W.F.P. and another PLD 1995 SC 66; Malik Asad Ali and others v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161; Muhammad Ayub Khan v. The Custodian of Evacuee Property and others PLD 1963 Kar. 551; Muhammad Umar v. Muqarab Khan and another 1968 SCMR 983; Mst. Sahib Noor v. Haji Ahmad 1988 SCMR 1703; Kunjabehari Chakrabarty v. Krishnadhone Majumdar AIR 1940 Cal. 489; Muhammad Khan and another v. Massan and others 1999 SCMR 2464; Rehmat Ali v. The Additional District Judge, Multan and others 1‑998 SCJ 761; Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22; Muhammad Usman v. Pehlwan and 4 others 2000 YLR 2324; Saifuddin v. Zainuddin and others 1992 MLD 631; Bolan Bank Limited v. Capricorn Enterprise (Pvt.) Ltd. 1998 SCMR 1961; United Bank Limited v. Messrs Central Cotton Mills Ltd. and 5 others 2001 MLD 78; Mushtaq Ahmed and others v. Government of Pakistan and others 1998 SCMR 749 = 1998 PLC (C.S.) 488; Municipal Committee v. Shaikh Aziz Illahi PLD 1970 SC 506 and The Commissioner, Hyderabad Division v. Muhammad and another 1969 SCMR 515 ref.

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

‑‑‑‑S. 12(2)‑‑‑Consent decree, setting aside of‑‑‑Even a consent decree is liable to be recalled, set aside or cancelled if it can be proved that the same was the result of fraud or misrepresentation.

Ruby Sales and Services (P.) Ltd. and another v. State of Maharashtra and others (1994) 1 SCC 531 ref.

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

‑‑‑‑S. 12(2)‑‑‑Setting aside of judgment and decree‑‑‑Plea of fraud‑‑­Proof‑‑‑Where a party levels allegation of fraud then it must specify and mention the details of the fraud and further same was required to be proved beyond reasonable doubt and not on the basis of surmises, conjectures and suspicion‑‑‑Facts/representations made by the financial institution in the memo of understanding, in the present case, were neither deceitful nor were based on misrepresentation as the borrower had been informed of such facts/ statements which were to form the basis of the compromise prior to the making of the compromise.

Central Bank of India Ltd. v. Guardian Assurance Co. Ltd. and another AIR 1936 PC 179 and A.L.N. Narayanan Chettyar and another v. Official Assignee, High Court Rangoon and another AIR 1994 PC 93 ref.

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

‑‑‑‑S. 12(2)‑‑‑Setting aside of judgment and decree‑‑‑Issues, non­-framing of‑‑‑Contention was that the judgment passed by the Court suffered from illegality on the ground that Court has neither framed issues nor provided opportunity to the appellants to establish their plea that the compromise and the decree suffered from fraud and misrepresentation, which had resulted in miscarriage of justice and caused prejudice to the appellants‑‑‑Validity‑‑‑Where the facts of the case did not warrant framing of issues and providing an opportunity to the parties to lead evidence, no illegality was committed by Court in deciding the application under S.12(2), C.P.C. without framing of issues.

Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662; Abdul Razzaq v. Muhammad Islam and 3 others 1999 SCMR 1714 and Abdur Rehman Khan v. Muhammad Altaf and 3 others 1997 CLC 1260 distinguished.

(h) Notification‑‑‑

‑‑‑‑Operation of Notification‑‑‑Notifications, Instructions, Circulars, etc. issued by Government or statutory bodies, operate prospectively and not retrospectively.

Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315 and Messrs Army Welfare Sugar Mills Ltd. And others v. Federation of Pakistan and others 1992 SCMR 1652 ref.

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

‑‑‑‑S. 25‑‑‑Circulars issued by the State Bank of Pakistan‑‑‑Effect on Commercial Banks‑‑‑Scope‑‑‑Such Circulars are issued by Banking Control Department of the State Bank of Pakistan in exercise of the powers conferred by S.25 of the Banking Companies Ordinance, 1962 and that the Circulars are in the nature of Instructions and/or Directives to the Commercial Banks whether private or Government‑owned and the Banks are duty‑bound to observe such Instructions/Circulars.

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

‑‑‑‑S. 12(2)‑‑‑Setting aside of compromise decree‑Invoking of jurisdiction of Court under S.12(2), C.P.C.‑‑‑Where the applic9nt failed to establish that the compromise and the consequential decree based thereon was the result. of fraud, misrepresentation and/or want of jurisdiction, jurisdiction of Court under S.12(2), C.P.C. could not be invoked.

Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246; Mushtaq Ahmed and others v. Government of Pakistan and others 1998 SCMR 749 1998 PLC (C.S.) 488; Municipal Committee v. Shaikh Aziz Illahi PLD 1970 SC 506 and The Commissioner, Hyderabad Division v. Muhammad and another 1969 .SCMR 515 ref.

(k) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

Art. 114‑‑‑Waiver‑‑‑Principle‑‑‑Object and scope‑‑‑Provisions of Art.114 of Qanun‑e‑Shahadat, 1984, deal with waiver or acquiescence and describe same as intentional relinquishment of a known right or such conduct as warrants inference of relinquishment of such right; implying consent to dispense with or forgo something to which a person is entitled‑‑‑To constitute waiver there must be some conscious giving up of a right and a person cannot be held bound unless he is aware of what exactly he is waiving and what right he is giving up with knowledge of all the facts‑‑‑Where a person, in spite of having full knowledge of violation of any of his rights of personal nature, remains silent and does not take any measure for safeguarding same then such person is deemed to have impliedly waived his such right‑‑‑Principle of waiver is applicable in circumstances.

(l) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 114‑‑‑Waiver‑‑‑Principle‑‑‑Public right or public policy‑‑­Infringement of‑‑‑Principle of waiver is that a person has a right to waive the benefit of a law or rule made solely for the benefit and protection of individuals in their private capacity provided that such waiver does not result in any infringement of any public right or public policy.

Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Ltd. PLD 1984 SC 38 and Yaqoob Ali v. Ismail 1987 CLC 526 ref.

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

‑‑‑‑O.XXI, R. 22(2)‑‑‑Execution of decree‑‑‑Non‑issuance of notice‑‑­Validity‑‑‑Executing Court for reasons to be recorded, can issue process in execution of a decree without issuing notice in view of O.XXI, R.22(c), C.P.C.

Syed Sharif‑ud‑Din Pirzada for Appellants.

Khalid Anwar for Respondent.

Dates of hearing: 15th, 21st, 28th, 29th, 30th August and 4th September, 2001.

2002 C L C 236

[Karachi]

Before Saiyed Saeed Ashhad, C. J. and Muhammad Afzal Soomro, J

MUHAMMAD ASLAM and another‑‑‑Petitioners

versus

PROVINCE OF SINDH through Secretary, Local Bodies and others‑‑‑Respondents

Constitutional Petition No.D‑767 of 2001, decided on 31st May, 2001.

(a) Administration of justice‑‑‑

‑‑‑‑Order of Court‑‑‑Effect‑‑‑No person or party should be made to suffer adversely or injustice be caused to him by: an order of Court.

The State v. Asif Adil and others 1997 SCMR 209; Muhammad Mansha and others v. Sabir Ali 1999 SCMR 1782; Sherin and others v. Fazal Muhammad and others 1995 SCMR 584 and Jai Behram v. Kedar Nath AIR 1922 PC 269 ref.

(b) Educational institution‑‑‑

‑‑‑‑Admission in medical college‑‑‑Cancellation of‑‑‑Order of Court‑‑­Effect‑‑‑Candidate was granted admission in medical college for the year 1996‑97 Session‑‑‑By virtue of order passed by High Court in earlier proceedings, seats of five least qualified candidates were to be cancelled and some other five candidates were to be given admission in place of the least qualified candidates‑‑‑Authorities, in compliance of the order passed by the High Court, gave admissions to the other five candidates in year 1997‑98 Session‑‑‑Petitioner was one of those five least r qualified candidates for the year 1996‑97 Session and his admission was cancelled by the Authorities on the basis of order passed .by High Court‑‑‑Plea raised by the said candidate was that as the other five candidates were given admission in the subsequent Session, therefore, cancellation of his admission was not justified‑‑‑Validity‑‑‑Strict compliance of the order passed by High Court in earlier proceedings would result in causing injustice and severe punishment to the candidate as his admission would be cancelled but corresponding gain would not be provided to anybody inasmuch as the person, who was to gain by cancellation of the admission of the candidate had already been accommodated by providing admission in medical college‑‑‑Since the Authorities were not justified in ordering cancellation of the admission of the candidate, he would continue to be the student of medical college and would be entitled to pursue his studies in circumstances.

Miss Humaira Kaukab v. Punjab Government and others 1992 CLC 446 ref.

Shamsuddin Khalid for Petitioners.

Sarwar Khan, Addl. A.‑G., Sindh for Respondents Nos. l and‑2.

Date of hearing: 31st March, 2001.

2002 C L C 256

[Karachi]

Before Muhammad Ashraf Leghari and S. Ali Aslam Jafri, JJ

MUHAMMAD YOUNUS through his brother‑‑‑Appellant

versus

IRFANULLAH KHAN through his Attorney and another‑‑‑Respondents

First Rent Appeal No. 120 of 2000, decided on 14th July, 2001.

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

‑‑‑‑S. 5‑‑‑Tenancy agreement‑‑‑Providing a method for execution of tenancy agreement in S.5 of the Ordinance with an object to avoid any doubt or ambiguity in execution thereof, does not mean that oral tenancy is prohibited under the Ordinance‑‑‑Had it been the intention of Legislature, then it would have provided such provision in the Ordinance excluding the jurisdiction of Rent Controller in respect of dispute between landlord and tenant based on oral tenancy.

Habib Hameed v. Liaquat Hussain P LD 1985 Kar. 741 rel.

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

‑‑‑‑S. 15(2)(ii)‑‑‑Default in payment of rent‑‑‑Proof‑‑‑plea of landlord was that tenant had defaulted in payment of rent for 7 months‑‑‑Tenant denying default had contended that landlord had never issued him any receipt‑‑‑Landlord produced in evidence number of counterfoils of receipts having been issued to the tenant‑‑‑Rent Controller on the ground of wilful default passed ejectment order against tenant‑‑‑Contention of tbc tenant was that all the counterfoils of receipts had been subsequently managed, which had no value in absence of signatures of payee of rent thereon‑‑‑Validity‑‑‑After evidence on oath and production of counterfoils of receipts by landlord, burden had heavily shifted upon tenant, but there was only word of the tenant in this regard and no evidence was led to prove that in fact no receipts were being issued to present tenant or any other tenant by landlord‑‑‑Non‑examination of any other tenant of landlord was fatal to the case of present tenant‑‑‑Signatures of tenant on counterfoils of receipts was not always necessary nor landlord was required to obtain signatures of tenant thereon nor it was necessary to have a joint receipt book for all tenants‑‑‑Tenant had failed to prove the payment of rent for disputed period and Rent Controller had rightly found him a wilful defaulter.

Abdul Latif v. Syed Akhtar Ali 1993 CLC 1951; Mst. Fatima v. Mst. Hanifa 1986 CLC 1613; Syed Abdul Rasheed v. Mst. Tajunnisa 1982 CLC 954; Abdul Samad Khan v. Asif Malik NLR 1990 AC 212; Mursaleen v. Ghulam Sarwar and another 1991 SCMR 2042; Muhammad Shafi Chaudhry v. Saeed Ahmed 1996 SCMR 1784; Jalees Ahmed v. Abida Ismail 1987 MLD 114 and Syed Abu Jafar v. Shaikh o Karim Bux 1985 CLC 1952 ref

Kazi Munawar Ali for Appellant.

Raja Khan for Respondents.

Date of hearing: 15th January, 2001.

2002 C L C 271

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

GHULAM ALI ‑‑‑Petitioner

Versus

Makhdoom RAFIQUE‑UZ‑ZAMAN and 5 others‑‑‑Respondents

Civil Petition No. 537 of 2001, decided on 1st July, 2001

Sindh Local Government Elections Ordinance (VIII of 2000)‑‑‑

‑‑‑‑Ss. 2, 3 & 14(1)(c)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Eligibility to contest election of Zila Council‑‑­Nomination Form of respondent for seat of Naib‑Nazim was challenged by petitioner on the ground that he and his wife were enrolled as voters in electoral roll of Cantonment area, while they were permanent resident of another area‑‑‑Returning Officer accepted the nomination Form, which order was unsuccessfully challenged by petitioner in appeal before District Returning Officer‑‑‑Validity‑‑‑Deputy Election Commissioner on application of respondent after due verification deleted his name from electoral roll of Cantonment area and entered same in electoral roll of the other area vide order, dated 7‑7‑2001, which was not challenged by the petitioner‑‑‑Chief Election Commissioner vide Notification, dated 20‑7‑2001 had clarified that local area under S.3 of the Ordinance for the purpose of elections of Zila Council would be the entire district including Cantonment areas and eligibility of candidates for elections of Zila Council would be determined accordingly under S.140)(c) of the Ordinance‑‑‑Petitioner had not challenged vires of said Notification, but had only challenged the orders passed by Returning Officer and District Returning Officer, which did not suffer from any illegality or infirmity warranting interference by High Court‑‑‑Constitutional petition was dismissed in circumstances.

Jhamat Jethanand for Petitioner.

Masood A. Noorani, Addl. A.‑Q, and Hakim Ali Siddique for the Official Respondents.

Hassan Mehmood Baig, Kazi Abdul Sattar and Allah Bachayo Soomro for the Private Respondents.

Date of hearing: 31st July, 2001.

2002CLC281

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

HUSSAIN BUX and another‑‑‑Petitioners

versus

DISTRICT & SESSIONS JUDGE/DISTRICT RETURNING OFFICER AND APPELLATE AUTHORITY, SANGHAR and 3 others‑‑‑Respondents

Constitutional Petition No. D‑539 of 2001, decided on 31st July, 2001.

(a) Sindh Local Government Elections Ordinance (VIII of 2000)‑‑‑

‑‑‑‑S. 14‑‑‑Criminal Procedure Code (V of 1898), Ss.87, 88 & 512‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑­Election of Nazim and Naib‑Nazim‑‑‑Candidate, a proclaimed offender‑ Effect‑‑‑Returning Officer rejected nomination form of petitioner being a proclaimed offender in a criminal case, and his appeal before District Returning Officer was also dismissed‑‑‑Contention was that on account of grant of protective bail by High Court, petitioner had remained no more a proclaimed offender‑‑‑Validity‑‑‑Criminal case was pending against the petitioner bciore Sessions Court for the last 6 years, and non‑bailable warrants could not be executed upon him‑‑‑Order of his abscondence under S.512, Cr.P.C. had been issued and proceedings under Ss.87 & 88, Cr.P.C. had been initiated against him‑‑‑Protective bail granted to him by High Court for a limited period would not have the effect to undo the abscondence order and proclamation order, thus, it could not be said that petitioner was enjoying good character or possessing good of the candidate was hit by the provisions of S.14 of Sindh Local Government Elections Ordinance, 2000 in circumstances‑‑­Impugned orders did not suffer from any infirmity or illegality warranting interference by High Court‑‑‑ Constitutional petition was dismissed.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Constitutional jurisdiction can only be exercised and used in aid of justice and not to promote injustice and has to be used and exercised fairly, justifiably and reasonably.

Muhammad Yousif Leghari for Petitioners.

Masood A. Noorani, Addl. A.‑G., Hakim Ali Siddiqui, Standing Counsel for Dy.A.‑G. and Ahsan Ali Shah for the Private Respondents.

Date of hearing: 31st July, 2001.

2002 C L C 290

[Karachi]

Before S.A. Sarwana and Zia Parvez, JJ

DEPUTY COLLECTOR, CENTRAL EXCISE LANDHI DIVISION, KARACHI and another‑‑‑Petitioners

Versus

Messrs RAJI AVIATION (PVT.) LTD. through

Chief Executive, Raji Hangar, Quaid‑e‑Azam International

Airport, Karachi and another‑‑‑Respondents

Constitutional Petition No. 1089 of 1998, decided on 6th July, 2001.

Central Excises Act of 44)‑‑‑

‑‑‑‑Ss. 3, 4, 11 & 35‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑Central Excise Duty‑‑‑Non‑payment of‑‑­Imposition of penalty‑‑‑Respondent who was in aviation business and providing services of journey by air, had failed to deposit assessed Central Excise Duty on sale of tickets‑‑‑Authority after issuing notice required the respondent to pay assessed duty and penalty for non‑payment of said duty‑‑‑Respondent by devious means fabricated a letter allegedly written by Assistant Collector and addressed to him communicating that penalty imposed on the respondent had been waived off and finally assessed amount of duty could be paid in meagre instalments and payment could be postponed‑‑‑Assistant Collector totally denied, alleged letter and filed a written complaint with F.I.A. against the respondents‑‑‑Appellate Tribunal on basis of said letter allowed payment of amount of Central Excise Duty by meagre instalments of Rs.10,000 per month‑‑‑Authority challenged said order of Appellate Tribunal in Constitutional petition alleging that the order was illegal, unreasonable and unjust‑‑‑No notice was given to the Authority by Appellate Tribunal before passing the order‑‑‑Validity‑‑‑Any payment under a' forged and fabricated letter which was denied by the writer thereof; would not create any vested right in favour of respondent‑‑‑Order of Appellate Tribunal passed without notice and without hearing the Authority, was set aside by the High Court, in exercise of its Constitutional jurisdiction and case was remanded to be decided afresh on merits after giving proper opportunity of hearing to the Authority.

Lt.‑Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty PLD 1961 SC 119 and Muhammad Swaleh and another v. Messrs United Grain and Fodder Agency PLD 1964 SC 72 ref.

Abdul Saeed Khan Ghori for Petitioners.

Abdul Rauf for Respondent No. 1.

2002 C L.C 331

[Karachi]

Before S.A. Rabbani, J

Syed DOSTDAR HASSAN ‑‑‑Appellant

versus

Mst. RAIS FATIMA ‑‑‑Respondent

First Rent Appeal No.526 of 2000, decided on 29th November, 2000.

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

‑‑‑‑S. 15(iii)(c) &. (iv)‑‑‑Impairing the value and utility of the premises by raising construction thereon‑‑‑Infringement of terms and conditions of tenancy ‑‑‑Ejectment application was filed by the landlady on the ground that tenant by raising certain constructions on the first floor of the premises without her permission had impaired the value and utility of the premises‑‑‑Rent Controller allowed ejectment application holding that tenant had infringed the terms and conditions on which the premises was let out to him‑‑‑No rent agreement was on record to prove that there was any terms or conditions which had been violated‑‑‑Rent Controller had not allowed the ejectment application on the ground that structure raised by the tenant had impaired the value or utility of the premises‑‑­Apparently the structure had added to the value and utility of the premises‑‑‑If construction was raised without an approved plan, the Authority concerned could be approached for its removal‑‑‑Construction without approved plan itself was no ground for ejectment of tenant‑‑­Finding of the Rent Controller that the tenant had infringed the terms and conditions on which the premises was let out to him, was not maintainable because there could be no finding on violation of a term of an agreement in the absence of agreement itself there being no default in payment of rent, appeal was allowed in circumstances.

Muhammad Shafiq Qureshi for Appellant.

Abdul Muqtadir Khan for Respondent.

Date of hearing: 29th November, 2000.

2002 C L C 353

[Karachi]

Before S. Ali Aslam Jafri, J

S.G. RAYON MILLS (PVT.) LIMITED‑‑‑Plaintiff

versus a

FIDA HUSSAIN & ASSOCIATES‑‑‑‑Defendant

Suit No. 132 of 1997, decided on 6th August, 2001.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 30 & 33‑‑‑Setting aside of award‑‑‑Jurisdiction of Court‑‑Taking of other view of material available on record‑‑‑Validity‑‑‑Where the various findings recorded by the sole Arbitrator on all the issues framed by him in respect of the controversy between the parties were well­-reasoned, based on material available on record and no error of law and facts appeared in the findings, High Court declined to differ with the findings or to take another view of the matter, which even otherwise was not permissible under the law‑‑‑Other view could not be taken as High Court was not hearing appeal against the award‑‑‑ If award was to be scrutinized while applying the yardstick of appeal, the very purpose of referring the matter for arbitration would be frustrated‑‑‑Some technical defects or infirmity in an award did not make the same inadmissible‑‑­Award in the present case, which was based on appreciation of law and facts did not suffer from any illegality or infirmity calling for any interference by High Court and the same was made Rule of the Court in circumstances.

Messrs Joint Venture KG/Rist v. Federation of Pakistan PLD 1996 SC 108; K.F: Development Corporation Limited v. Messrs Dawood Cotton Mills Limited 1999 MLD 2953; Messrs Abdullah Traders v. Trading Corporation of Pakistan Limited 1999 CLC 2047; Pakistan v. Messrs Overseas Enterprises (Pvt.) Limited 1992 CLC 1138 and Province of Sindh and others v. Waseem Construction Company 1991 CLC 66 ref.

M. Akram Zubari for Plaintiff.

Zahid F. Ibrahim for Defendant.

2002 C L C 388

[Karachi]

Before Zahid Kurban Alavi and Muhammad Mujeebullah Siddiqui, JJ

MAYZONE PAK INTERNATIONAL‑‑‑Petitioner

Versus

ADDITIONAL SECRETARY, GOVERNMENT OF PAKISTAN‑‑‑Respondent

Constitutional Petition No.D‑1618 of 1998, heard on 27th September, 2001.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 223, proviso-‑‑Instructions issued by Central Board of Revenue‑‑­Quasi‑judicial functions, exercise of‑‑‑Instructions and directions of Central Board of Revenue not binding on the functionaries discharging their judicial or quasi‑judicial functions‑‑‑Central Board of Revenue could not issue any administrative directions of the nature which might interfere with the judicial or quasi‑judicial functions entrusted to the various functionaries under the statute and such instructions and directions were binding on the functionaries so long as they were confined to administrative matters.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 223, proviso‑‑Notification S.R.O. No. 187(1)/1991, dated 10‑3‑1991‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Judicial/quasi‑judicial functions of Custom Authorities‑‑­Decision of the matter, on the instructions of Central Board of Revenue‑‑­Duty draw back, claim of‑‑‑Petitioner exported 100% polyester bleached and dyed table covers and claimed duty draw back under the provisions of Notification S.R.O. No.187(I)/1991, dated 10‑3‑1991‑‑‑Authorities declined to give such benefit to the petitioner‑‑‑Matter was remanded to the Authorities for interpreting the Notification and deciding the matter judicially on earlier round of litigation‑‑‑Authorities made reference to Central Board of Revenue for clarification and decided the matter in the light of the instructions issued by the Board‑‑‑Validity‑‑‑Reference made by the Authorities to the Central Board of Revenue while engaged in adjudication proceedings in compliance of the directions of the High Court, ruling given by the Central Board of Revenue and acceptance thereof by the Authorities as of binding nature, were all violative of the provisions contained in the proviso to S.223 of the Customs Act, 1969‑‑­Authorities, in the present case, instead of examining the issue adopted course not warranted in law and as such their action was unwarranted and illegal, which had resulted in miscarriage of justice‑‑‑Central Board of Revenue had itself by mere process of interpretation, directed that 'cushion covers' should be treated under the heading `pillow covers' and in. the cognate Notification 'table covers' manufactured from cotton were allowed the facility of export rebate‑‑‑High Court directed the Authorities to allow the export rebate to the petitioner as admissible in law‑‑‑Constitutional petition was allowed in circumstances.

(c) Administration of justice‑‑‑

‑‑‑‑Administrative decisions‑‑‑Exercise of jurisdiction by functionaries‑‑­If law enjoins upon a particular functionary/Authority to exercise particular jurisdiction, the same should be exercised by the said functionary/Authority independently by application of its own mind‑‑‑If any judicial/quasi‑judicial or even administrative discretion is not exercised independently and on application of mind by the functionary/Authority who is enjoined under the law to exercise the discretion and if the proceeding is controlled or decision is dictated it amounts to non‑exercise of jurisdiction by the functionary/Authority vested with jurisdiction and wrong exercise of jurisdiction by Authority not vested with jurisdiction‑‑‑All such proceedings are always deemed to be invalid, nullity in law and of no legal effect‑‑‑Where under a scheme of statute, something is required to be considered and decided in judicial/quasi‑judicial proceedings then the matter should be decided accordingly, without any interference from any higher or superior authority or under any administrative instruction‑‑‑Things should be done as they are required to be done or not at all.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Administration of justice‑-Issuance of writ instead of remanding the case to Authorities‑‑‑ Scope‑‑­Matter had been lingering on since year 1991, and full one decade had already passed without any final decision in the matter‑‑‑Further remand of the case to the Authorities would not be warranted because of the principle that the justice delayed was justice denied‑‑‑Where the Authorities had failed to exercise their jurisdiction in consonance with the law, High Court, instead of remanding the case to the Authorities, finally decided the matter itself by issuance of writ to the Authorities to act in accordance with law.

(e) Interpretation of statutes‑‑‑

‑‑‑‑ Definition clause of an enactment‑‑‑Use of expressions "means", "included" and "including"‑‑‑Connotation‑‑‑While interpreting the statutes whenever a definition is given using the expression "means" it is exhaustive and wherever, the expression used is "included" or "including", "means and includes", the definition is not exhaustive but it is inclusive which is always supposed to extend the meaning of items/things/acts of similar nature and can be legitimately included in the definition, if the circumstances so warrant.

(f) Words and phrases‑‑‑

--------"Means", "included" and "including"‑‑‑Connotation.

Aziz A. Shaikh for Petitioner.

Raja M. Iqbal for Respondent.

Date of hearing: 27th September, 2001.

2002 C L C 431

[Karachi]

Before Zia Perwez, J

JAVED AHMAD‑‑‑Plaintiff

Versus

ABDUL QADIR and others‑‑‑Defendants

Suit No. 1592 of 1998, Civil Miscellaneous Applications Nos. 106 of 1999 and 7398 and 7399 of 2001, decided on 24th October, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss 16. 17, 120 & O.VII, R.11‑‑‑Rejection of plaint‑‑‑Territorial jurisdiction‑‑‑Suit for partition of immovable properties situated in two Provinces‑‑‑Application under O.VII, R.11, C.P.C. was filed by the defendant on the ground that except one property all the remaining suit properties were situated beyond the territorial jurisdiction of High Court‑‑‑Validity‑‑‑Where any of the reliefs could be granted by the Court, the plaint was not liable to be rejected‑‑‑Provision of S.16, C. P.C. was not applicable in view of provisions of S.120, C.P.C. in the proceedings before High Court in exercise of original civil jurisdiction‑‑‑Since one of the properties, in the present case, was situated within the jurisdiction of High Court, the matter pertaining to all other ancestral properties as well as relief for recovery of cash money was maintainable, before the High Court‑‑‑Application for rejection of plaint was dismissed in circumstances.

Lchhman Das v. Jimni Das AIR 1930 Lah. 418 and Syed Mir Shah v. Muhammad Badshah PLD 1985 Pesh. 74 ref.

M. Umer Qureshi for Plaintiff.

Safdar. Hussain Shah Bokhari for Defendant No. 1.

Basheer Ahmed A. Qureshi for Defendant No. 3.

Miss Razia Sultana for Defendant No.4.

Date of hearing: 24th October, 2001.

2002 C L C 447

[Karachi]

Before Wahid Bux Brohi, J

Mst. AQEELA MAJEED KHAN Appellant

Versus

ABDUL JABBAR KHAN‑ Respondent

First Appeal No.21 of 1999, decided on 26th September, 2001

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

‑‑‑‑S. 18‑‑‑Appeal (civil)‑‑‑Forum of appeal‑‑‑Determination‑‑‑Forum of civil appeal was to be determined in accordance with the value of the suit as mentioned in the plaint irrespective of fixation of price of disputed property by the Trial Court.

Muhammad Ayub v. Obaidullah 1999 SCMR 394 and National Bank of Pakistan v. Muhammad Akram Khan 2000 CLC 1493 ref.

Muhammad Yaseen Azad for Appellant.

Syed Riaz Haider for Respondent.

Date of hearing: 21st September, 2001.

2002 C L C 449

[Karachi]

Before Zia Perwez, J

QATAR AIRWAYS‑‑‑Plaintiff

Versus

GENYIS INTERNATIONAL (PVT.) LTD. ‑‑‑Defendant

Suit No.613 of 2001, decided on 31st October, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XII. R. 6‑‑‑Judgment on admission‑‑‑Recovery suit‑‑‑Cross‑case by defendant‑‑‑Clear, unambiguous and unqualified admission of amount by defendant‑‑‑Relying on the admission of the defendant, the plaintiff filed application under O.XII, R.6, C.P.C.‑‑‑Defendant resisted the application on the ground that suit for damages was also filed by the defendant which was pending against the plaintiff, and the plaintiff was a foreigner company‑‑‑Validity‑‑‑Mere institution of a suit for damages by the defendant against the plaintiff or the plaintiff being a foreigner company, did not constitute a valid ground to reject the application‑‑‑Where the admission of the amount claimed by the plaintiff was clear, unambiguous and unqualified, High Court decreed the suit in favour of the plaintiff‑‑­Application was allowed in circumstances.

State Life Insurance Corporation of Pakistan v. Walli Muhammad Akbarji and others 1985 CLC 2870; Shaikh Mahmood Ahmed v. Ghaith Pharaon 1987 CLC 2131; Mian‑Tajamul Hussain and 3 others v. State Life Insurance, Corporation of Pakistan 1993 SCMR 1137; Mrs. Haseema v. Mrs. Shafqat Malik 2001 CLC 1224; Mercantile Fire and General Insurance Co. of Pakistan Ltd. v. Messrs Imam & Imam Ltd. 1989 CLC 2117; H. Gharibullah v. Mst. Mumtaz Begum and others 1990 CLC 1609 and Sher Bahadur and others v. Muhammad Amin and others AIR 1929 Lah. 569 ref.

Zahid F. Ebrahim for Plaintiff.

Abid Sheerazi for Jawed Siddiqui for Defendant.

Date of hearing: 30th October, 2001.

2002 C L C 459

[Karachi]

Before S.A. Rabbani, J

MUZAFFAR HUSSAIN ‑‑‑Petitioner

Versus

PROVINCE OF SINDH and 3 others‑‑‑Respondents

Constitutional Petition No.D‑275 of 1999, decided on 25th July, 2001.

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

‑‑‑‑Art. 204‑‑‑Contempt of Court Act (LXIV of 1976), Ss.3 & 4‑‑­Contempt of Court‑‑‑Direction by High Court‑‑‑High Court, in exercise of Constitutional jurisdiction, declared that the provisions of statute were liable to be declared invalid‑‑‑Contention of the applicant was that the contemners did not act according to the direction passed by the High Court‑‑‑Validity‑‑‑Order passed by the High Court did not declare the provisions of law invalid and it was practically an advice to the main respondent viz. Province of Sindh through Secretary, Irrigation and Power ... 'to act accordingly .to repeal the said section" ‑‑‑Where the alleged contemners had no role to perform and they were not authorized to deduce their own interpretation to act on the order passed by the High Court, there was no violation committed by them rendering them liable to action for contempt of Court‑‑‑Application for the contempt of Court was dismissed in circumstances.

(b) Contempt of Court Act (LXIV of 1976)‑‑

‑‑‑‑Ss. 3 & 4‑‑-Civil Procedure Code (V of 1908), O.XXXIX, R.2(3)‑‑; Contempt application‑‑‑Action provided under O.XXXIX, R.2(3), C.P.C.‑‑‑Applicability‑‑‑Application under Ss.3 & 4 of the Contempt of Court Act, 1976, was filed but the action sought through the same was one provided in O.XXXIX, R.2(3), C.P.C.‑‑‑Validity‑‑‑Such action could only be taken in case of disobedience in respect of injunction granted under O.XXXIX, R.2, C.P.C.‑‑‑High Court declined to take such action in application under Ss.3 & 4 of Contempt of Court Act, 1976 in circumstances.

Jhamat Jhetanand for Petitioner.

Nizamuddin A. Memon for Contemner No. 1.

Suleman Habibullah, A.A.‑G. for the State.

Date of hearing: 11th July, 2001.

2002 C L C 468

[Karachi]

Before Shabbir Ahmed, J

ABDUL MAJEED‑‑‑Plaintiff

Versus

KHALID YASIN and 2 others‑‑‑Defendants

Civil Suit No. 1524 of 1998, Civil Miscellaneous Applications Nos. 10550, 11262, 11263 of 1998 and 2311 of 1999, decided on 18th December, 2000.

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

‑‑‑‑O. XXVI, Rr.9, 18 & O.XXXIX, R.7‑‑‑Commission to make local investigation‑‑‑Appointment of Commissioner without notice to other party‑‑‑Effect‑‑‑Court could not appoint the Commissioner for inspection without notice to the defendants except in cases where issuance of notice might frustrate the purpose of such appointment, but Commissioner hat to execute the commission with notice to opposite‑party‑‑­Commissioner's report in respect of the inspection conducted without reasonable notice specifying the time and date of inspection and prepared in violation of mandatory provisions, was liable to be excluded from consideration.

Modalvasam Latchan Naidu and another v. Rama Karishna Ranga Rao Bahadur Bobbili Samasthanam AIR 19 4 Mad. 548 and Barkat Ali and another v. Mst. Fatima Bai and 2 others 1995 CLC 1012 ref.

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

‑‑‑‑O. XXVI, Rr.9, 18 & O.XXXIX, R.7‑‑‑Commission to, make local investigation‑‑‑Inspection conducted by Commissioner without notice to defendants and initiation of contempt proceedings on basis thereof‑‑­Validity‑‑‑Rule 18 of O.XXVI, C.P.C. was mandatory and intended to ensure that parties had notice of the appointment of Commissioner and they must attend the investigation‑ ‑‑Inspection without notice to defendants notifying the time and date of inspection, could not be considered for contempt application.

Modalvasam Latchan Naidu and another v. Rama Karishna Ranga Rao Bahadur Bobbili Samasthanam AIR 1934 Mad. 548; Barkat Ali and another v. Mst. Fatima Bai and 2 others 1995 CLC 1012 and Syed Ahmad Shah and another v. The State and another PLD 1967 SC 42 ref.

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

‑‑‑‑O. VI, R.17‑‑‑Amendment of pleading‑‑‑Court can permit the amendment of pleadings at any stage of the proceedings according to changed circumstances in order to avoid the multiplicity of proceedings, to shorten the litigation and to do complete justice between the parties.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Mst. Amina Begum and others v. Mehar Ghulam Dastagir PLD 1978 SC 220 ref.

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

‑‑‑‑‑O. VI. R.17‑‑‑Amendment of plaint‑‑‑When suit was at the stage of issues, plaintiff sought amendment of plaint on the basis of subsequent happening and claimed relief on that basis‑‑‑Such amendment could not be refused by directing the plaintiff to file a suit for the relief on the cause of action which had accrued subsequent to the filing of suit‑‑‑Such amendment would not change the nature of suit and was necessary for determination of real question and avoiding the multiplicity of proceedings‑‑‑Amendment was allowed in circumstances.

(e) Contempt of Court‑‑‑

‑‑‑‑ Contempt proceedings could not be initiated on the basis of verbal notice to the defendant about order of Court.

K.B. Bhutto for Plaintiff.

Sajjad Ali Shah for Defendants Nos. 1 and 2.

Muhammad Arif Khan for Defendant No.3.

Date of hearing: 29th November, 2000.

2002 C L C 492

[Karachi]

Before Sabihuddin Ahmed and Mushir Alam, JJ

Messrs UMAR KHAN‑‑‑Appellant

Versus

CHIEF ENGINEER, ROADS AND BUILDINGS, GOVERNMENT OF

BALOCHISTAN, QUETTA ‑‑‑Respondent

High Court Appeal No.358 of 1999, decided on 13th June, 2001.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 20, 30, 31(4) & 39(v)‑‑‑Award, setting aside of‑‑‑Objection as to jurisdiction of Court making the reference‑‑‑Arbitrator filed award in High Court which had referred him the dispute in terms of arbitration agreement‑‑‑Objection that award had been illegally procured as the High Court had no territorial jurisdiction to appoint the Arbitrator and make the reference‑‑‑Validity‑‑‑Such objection was not raised though available to the appellant when application under S.20 of the Arbitration Act was filed in High Court, which would be deemed to have been waived and could not be raised subsequently even in appeal under S.39(iv) of the said Act‑‑‑Such objection would not be even sustainable on general principle of acquiescence‑‑‑Once the reference and award made pursuance thereto was found to be valid, then a decree in terms of the award could only be made by the Court making the reference‑‑‑High Court was the only competent Court in which award could have been filed in terms of S.31(4) of the Act.

Combine Enterprises v. Water and Power Development Authority PLD 1988 SC 39; Chief Engineer, Building Department v. Pakistan National Construction 1988 SCMR 723; Mst. Chaghi and others v. Bachoo PLD 1984 Quetta 92; Prasun Roy v. Calcutta Metropolitan Development Authority 1989 MLD 3235; Project Director and another v. Nawab Brothers Limited 1982 CLC 1147; Sundardas Prem Singh v. Porum Chand AIR 1933 Lah. 599; General Papers Limited v. A.P.A. Pakkir Mohidden and Brothers AIR 1958 Mad. 483; Janan Chand Chugh v. Gogal Kishor Agerwal AIR 1960 Cal. 331; Kumbha Mawji ' v. Dominion of India AIR 1953 SC 313; Shakrullah and another v. Rehmat Bibi and others AIR 1947 All. 304; M.A. Jalil v. Group Captain (Retd.) Salahuddin Khan 1983 CLC 1685; Pakistan Fisheries v. United Bank Limited PLD 1993 SC 109; Brothers Steel Mills v. Mian Ilyas Siraj PLD 1996 SC 543 and Province of Sindh and another, v. S. Zaheeruddin Hussain 1982 CLC 175 ref.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 20 & 39(iv)‑‑‑Civil Procedure Code (V of 1908), S.21‑‑‑Award made with intervention of Court‑‑‑Order passed under S.20 of Arbitration Act, 1940, can be appealed against under S.39(iv) of the Act, but objection as to territorial jurisdiction of Court passing such order cannot be raised in view of specific bar under S.21 of Civil Procedure Code, 1908.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 30‑‑‑Award made by an Arbitrator could only be objected to on the grounds enumerated in S.30 of Arbitration Act, 1940.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 31(4) read with S.20‑‑‑Where in any reference an application under Arbitration Act, 1940 had been made in a Court competent to entertain it, that Court alone would be competent to entertain any subsequent application arising out of that reference and arbitration proceedings‑‑­Application under S.20 of the Act was covered by the expression "any reference" used in S.31(4) of the Act:

Abdul Hafeez Lakho for Appellant.

Muhammad Ashraf Tanoli, A.‑G., Balochishtan.

Makhdoom Ali Khan: Amicus Curiae.

2002 C L C 512

[Karachi]

Before Sarmad Jalal Osmany, J

Messrs QUETTA TEXTILE MILLS LIMITED through Chief Executive‑‑‑Plaintiff

Versus

PROVINCE OF SINDH through Secretary, Excise and Taxation, Sindh Secretariat, Kamal Attaturk Road, Karachi and another‑ ‑Defendants

Suit No.277 of 2001, decided on 28th March, 2001.

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

‑‑‑‑O. XXVII‑A, R.1‑‑‑Expression "proceed to determine the question" as used in O.XXVII‑A, R.1, C.P.C. relates to final determination of such question by Court of law or Tribunal‑‑‑Final determination could not be made at ad interim stage, when only ad interim arrangements were to be made to regulate rights and liabilities of the parties‑‑‑Such a determination would be made after hearing the parties both at interim stage and at the stage of final decision of suit.

Federation of Pakistan v. Aftab Ahmed Khan Sherpao PLD 1992 SC 723 ref.

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

‑‑‑‑O. XXVII‑A, R.I‑‑‑Specific Relief Act (1 of 1877), Ss.42 & 53‑‑­Constitution of Pakistan (1973), Art.199(4)(b)‑‑‑Suit for declaration and injunction‑‑‑Contention that Court was bound to issue notice at interim stage to prescribed Law Office in terms of Art.199(4)(b) of Constitution of Pakistan (1973) was not always true‑‑‑Specific provisions had been made in O.XXVII‑A, R.1, C. P. C. regarding notice in a suit to Advocate ­General/Attorney‑General‑‑‑Such notice could be dispensed with in appropriate cases before issuance of interim orders.

Khan Abdul Aziz Khan v. Secretary, Government of Punjab and others 1981 SCMR 672; Mian Arif Iftikhar v. Election Tribunal, West Pakistan and another PLD 1968 Lah. 1387; Mirpurkhas Sugar Mills Ltd. v. District Council 1991 MLD 715 and Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCMR 1905 ref.

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

‑‑‑‑O. XXVII‑A, R.1‑‑‑Notice to Advocate‑General/Attorney‑General‑‑­Exceptions‑‑‑Where impugned notice/law was prima facie of such a nature as to come within the well‑known exceptions i.e. it was issued without jurisdiction, coram non judice, mala fide or against the principles of natural justice, and where urgency of the matter so demanded then ad interim orders without issuing notice to Advocate‑General/Attorney ­General would be in the interest of justice‑‑‑Where such ingredients were not present, then no ad interim order could be issued without notice to Advocate‑General/Attorney‑General under. O.XXVII, R. I, C.P.C.

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

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑­Constitutional petition‑‑‑Provisions of Civil Procedure Code are applicable to Constitutional petition.

Federation of Pakistan v. Aftab Ahmed Khan Sherpao PLD 1992 SC 723 ref.

Makhdoom Ali Khan for Plaintiff.

Raja Qureshi, A.‑G., Sindh for Defendants.

2002 C L C 522

[Karachi]

Before Faiz Muhammad Qureshi, J

DOST MUHAMMAD K. SHAIKH ‑‑‑Appellant

Versus

Syed LALA MIR KHAN‑‑‑Respondent

First Rent Appeal No.50 of 1996, heard on 6th April, 2001.

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

‑‑‑‑Ss. 15(2)(ii), (vii) & 21‑‑‑Default in payment of rent‑‑‑Bona fide personal need of landlord‑‑‑Rent Controller accepted the ejectment application on both the grounds of default by tenant and need of the landlord‑‑‑Order of the Rent Controller was based on surmises and conjectures as he had not taken into consideration the entire facts of the case and the evidence available on record‑‑‑Tenant had clearly stated that he had been paying rent since the inception of tenancy, but the landlord had never issued any receipt for the rent paid and that tenant due to long cordial relations had never insisted for rent receipts‑‑‑Burden with regard to issuance of receipts was on landlord, but the Rent Controller shifted the burden on the shoulders of the tenant without taking into consideration submission of the tenant‑‑‑Finding of the Rent Controller on issue of personal need of the landlord was also not elaborate and he decided matter in favour of the landlord without any proper reason‑‑­Validity‑‑‑Rent Controller having not taken into consideration properly the issues involved in the case and having passed the order on mere conjectures and surmises, such order was set aside and case was remanded to decide afresh after giving parties opportunities over the issues involved in the matter and taking into consideration entire evidence on record, in accordance with law.

1986 CLC 1280; 1986 CLC 1551; 1994 CLC 755; 1985 CLC 562; 1993 MLD 386; 1993 MLD 1825; 1986 CLC 2550; 1994 MLD 1958; PLD 1990 SC 394; 1999 SCMR 538; 1989 CLC 34 and 1981 MLD 1486 ref.

Muhammad Sadiq for Appellant.

Ms. Rashida Siddiqua for Respondent.

Date of hearing: 2nd April, 2001.

2002 C L C 530

[Karachi]

Before Muhammad Ashraf Leghari, J

M. FAREED ‑‑‑ Petitioner

Versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Constitutional Petition No.S‑380 of 2001, decided on 4th October, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Registration of F. I. R. ‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Registration of F.I.R. through Constitutional petition was a discretionary relief and the same could only be granted H hen it was found to be justified, fair and reasonable‑‑‑Where it was neither justified, nor reasonable and alternate adequate remedy was available to the petitioner by way of filing of direct complaint High Court declined to exercise such discretion in favour of the petitioner‑‑‑Constitutional petition was dismissed in circumstances.

Altai Hussain v. Government of Sindh through Home Secretary, Government of Sindh and another PLD 1997 Kar. 600 and Jamshed Ahmed v. Muhammad Akram Khan and another 1975,SCMR 149 ref.

Abdul Wahab Baloch for Petitioner.

Abbas Ali, A.A.‑G. for the State.

Date of hearing: 4th October, 2001.

2002 C L C 533

[Karachi]

Before Wahid Bux Brohi, J

Syed AFZAL HUSSAIN ‑‑‑Applicant

Versus

MUHAMMAD AMIN and others‑‑‑Respondents

Revision Application No.64 of 2001, decided on 21st September, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. IX, R.9 & S.115‑‑‑Setting aside ex parte order‑‑‑Noting of wrong date‑‑‑Date mentioned on cause list‑‑‑Appellate Court allowed the appeal against judgment and decree passed by Trial Court as the petitioner failed to appear on the date fixed for hearing‑‑‑Plea raised by the petitioner was that there was overwriting on the cause list regarding the next date of heating, hence the order passed by the Appellate Court was liable to be set aside‑‑‑Validity‑‑Writings on the cause list did not bear authenticity over and above the regular Court record‑‑‑Where the petitioner° failed to demonstrate any illegal exercise of jurisdiction or lack of exercise of jurisdiction or any material irregularity in the order passed by the Appellate Court, the same could not be interfered with in revisional jurisdiction under S.115, C.P.C.‑‑‑Order passed by the Appellate Court did not suffer from any perversity and on the contrary it was 'made out that the petitioner himself was to be blamed for his conduct in remaining absent on the crucial date‑‑‑Appeal, in the present case, was decided on merits and not on any technical ground and there was no ground to invoke provisions of S.115, C.P.C.‑Revision was dismissed in limine.

M. Shafi Muhammadi for Applicant.

Abdul Sattar Memon for Respondents.

Date of hearing: 14th September, 2001.

2002 C L C 536

[Karachi]

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

ABDUL QADIR and another‑‑‑Petitioners

Versus

K.B.C.A. and another‑‑‑Respondents

Constitutional Petition No.D‑1750 of 1998, decided on 26th September, 2001.

Karachi Building and Town Planning Regulations, 1969‑‑‑

‑‑‑‑Regln. 13‑‑‑Sindh, Cultural Heritage (Preservation) Act (XII of 1994), Ss.8, 11 & 12‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Building plan, sanction of‑‑‑Disputed building was declared as protected heritage by Culture and Tourism Department‑‑­Authorities did not approve or disapprove the building plan submitted by the petitioners within 30 days of its submission‑‑‑Petitioners after notice to the Authorities started construction over the disputed property assuming approval of the plan under the Karachi Building and Town Planning Regulations, 1969‑‑‑Petitioner, after notice to the Authorities could proceed to carry out the building work within one year from the delivery of such notice‑‑‑Contention of the petitioners was that neither the disputed property was acquired under Ss.11 & 12 of the Sindh Cultural Heritage (Preservation) Act, 1994, nor the Authorities entered into any agreement with the owner‑‑‑Petitioners further contended that under Regln. 13 of the Karachi Building and Town Planning Regulations, 1969, they were entitled to start construction after sixty days of submission ‑of the plan for approval‑‑‑Validity‑‑‑Petitioners, in the present case, were being punished for lapses on the part of officials of Karachi Building Control Authorities and Culture and Tourism Department‑‑‑Petitioners were entitled to carry out building work to the extent which did not contravene Town Planning Regulations, Master Plan or Site Development Scheme, if any‑‑‑High Court restrained the Authorities from interference with the building work being carried out by the petitioners, till there was no contravention‑‑‑High Court directed the Authorities that in case of any contravention its details should be specified in a notice to be given to petitioners‑‑‑Constitutional petition was allowed accordingly.

K.B. Bhutto for Petitioners.

Ali Bin Adam Jafri for Respondent No. 1.

Abbas Ali, A.A.‑G. for Respondent No.2

Date of hearing: 20th September, 2001.

2002 C L C 542

[Karachi]

Before Muhammad Ashraf Leghari, J

Syed MUMTAZ ALI ‑‑‑Petitioner

Versus

Mst. ZAIBUN NISA and others‑‑‑Respondents

Constitutional Petition. No.S‑203 of 2001, decided on 30th October, 2001

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

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Factual controversies‑‑‑Concurrent findings of fact by the Courts below‑‑‑Two suits, one for dissolution of marriage and the other for recovery of dowry articles, were decreed by the Family Court, in favour of the wife and the judgment and decree were maintained by Appellate Court‑‑‑Husband raised plea that both the Courts below had misread the evidence on record‑‑‑Validity‑‑‑Husband failed to advance any legal plea‑‑‑Controversial factual aspect of case could not be resolved in exercise of Constitutional jurisdiction‑‑‑Both the Courts below had discussed and examined facts and evidence adduced by the parties in detail‑‑‑Where no misreading, or mis-appreciation of evidence was seen on the record, the High Court declined to interfere with the judgments and decrees passed by the Courts below‑‑‑Constitutional petition was dismissed in circumstances.

Deutsche Dampschiffaharts Gesellschaft and Another v. Central Insurance Co. Ltd., Karachi PLD 1975 Kar. 819; President of Pakistan v. Ms. Benazir Bhutto 1992 MLD 382 and Water and Power Development Authority v. Ghulam Shabir 1998 MLD 1592 ref.

Abdul Karim Siddiqui for Petitioner.

Muhammad Rafi for Respondent No. 1.

2002 C L C 548

[Karachi]

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

SATTAR and others‑‑‑Petitioners

Versus

SENIOR CIVIL JUDGE AND R.C. No.3 and others‑‑‑Respondents

Constitutional Petition No.D‑1013 of 1990, decided on 17th September, 2001.

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

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art. 199‑Constitutional petition ‑‑‑Ejectment of tenant ‑‑‑Impleading of legal heirs of tenant as party to the eviction proceedings after death of the tenant‑‑‑Contention of the legal heirs was that they had been impleaded in the proceedings without prior notice‑‑‑Validity‑‑‑Legal heirs admitted themselves to be the tenants as they had been living in the tenement with their father‑‑­Rent Controller had rightly joined the legal heirs in the proceedings and the contention of the legal heirs was devoid of any force ‑‑‑Joinder of the legal heirs was itself a notice to them to contest the claim and case of the landlord‑‑‑Legal heirs were joined only to provide them an opportunity to contest the case‑‑‑Case was like the one where a fresh rent case was filed against the tenants‑‑‑No illegality was committed by the Rent Controller in the order passed for joinder of the legal heirs‑‑‑Constitutional petition was filed only to prolong the possession of the premises which was dismissed accordingly.

Zia Qureshi for Petitioners.

Nemo for Respondents.

Date of hearing: 12th September, 2001.

2002 C L C 551

[Karachi]

Before Zahid Kurban Alvi and Mushir Alam, JJ

QAID JAUHAR and another‑‑‑Appellants

Versus

Mst. Hajiani HAJRA BAI and another‑‑‑Respondents

High Court Appeal No. 16 of 1992, decided on 14th October, 2001.

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

‑‑‑‑O. VI, R.17‑‑‑Amendment of pleadings‑‑‑Object, scope and extent‑‑­Power to allow amendments are to be exercised liberally, but at the same time such liberal exercise of power are not to be stretched to an extent where it adversely affects the other party‑‑ Usually amendments are liberally allowed in cases where there appears to be some error or omission or misdiscription in the pleadings‑‑‑‑Amendment which does not change the complexion of case is allowed even at the, terminal stage‑‑­Basic rule governing amendment of pleadings being that through amendment a party cannot be allowed to change the complexion of claim or to set up altogether new case or a case diabolically opposed to the one set up in earlier set of pleadings in the same proceedings‑‑‑Amendment can only be made up to the extent allowed by the Court.

Ghulam Nabi v. Sardar Nazir Ahmed 1985 SCMR 824; Wazir Muhammad v. Abdul Azia and another 1982 SCMR 189 and 1999 YLR 1511 ref.

(b) Words and phrases‑‑‑

------“Subject to all just exceptions"‑‑‑Connotation‑‑‑Expression "subject to all just exceptions" is used with purpose to preserve the right of opposing party to object to proceedings or matter, in the course of a trial, being improper and illegal‑‑‑Under the expression the party excepting does not acquiesce in the decision of the Court but. reserves to itself the right to secure its reversal at subsequent stage of proceedings.

Shamimur Rehman v. Government of Pakistan PLD 1980 Kar. 345 and Ghulam Muhammad v. Irshad Ahmad PLD 1982 SC 282 ref.

(c) Words and phrases‑‑‑

‑‑‑‑‑‑ Without prejudice." and "subject to all just exceptions"‑‑­Comparison‑‑‑Phrase "subject to all just exceptions" is similar to phrase "without prejudice" used in relation to negotiations, agreements, compromise offer or correspondence by parties, in order to guard against any waiver of right or privilege.

Abdul Razak v. Standard .Insurance Co. 1990 MLD 1842 and Pakistan Refinery Ltd. v. Pakistan National Shipping Corporation 1986 CLC 2555 ref.

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

‑‑‑‑O. VI, R. 17 & O.VIII, R.5‑‑‑Amendment of pleadings‑‑‑Appellants intended to amend the written statement filed by their predecessor‑in­-interest in the year 1979, wherein admission of certain fact had been made‑‑‑Validity‑‑‑Where legal notices which were given before litigation corresponded to the defence taken earlier, by the appellants in their written statement, there was no reason to take a different view from the one that what had been taken by the Court‑‑‑Written statement filed in the year 1979, could not be allowed to retract from the admission made therein as same amounted to admission under O.VIII, R.5, C.P.C.

Mst. Dharan Bibi and others v. Khushi Muhammad and another 1995 MLD 290; Haji Salman Ali v. Ali Ahmed and another PLD 1982 Kar. 111 and Secretary to Government v. Abdul Kalil PLD 1978 SC 242 ref.

Abid S. Zubari for Appellants.

I.G. Chundrigar for Respondents.

Date of hearing: 15th December, 2000.

2002 C L C 566

[Karachi]

Before Saiyed Saeed Ashhad, C.J. and Mushir Alam, J

KARACHI WATER AND SEWERAGE BOARD through Managing

Director‑‑‑Appellant

Versus

Messrs M.A. MAJEED KHAN and 2 others‑‑‑Respondents

High Court Appeal No. 105 of 2001, heard on 10th August, 2001.

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

‑‑‑‑S. 151‑‑‑Consolidation of suits‑‑‑Object and scope‑‑‑Prerequisites‑‑‑To avoid likelihood of conflict of opinion, discourage multiplicity of proceedings, duplication of trial of same issue between the same set of parties, to expedite decision, avoid delay and inconvenience, consolidation or joinder of several actions into one may be ordered by the Court, where it is satisfied that all the causes are; between the same parties; before the same Court; point in issue, defence are substantially common in all such action; common evidence is to be recorded and consolidation is applied at an earliest opportunity, before evidence is recorded.

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

‑‑‑‑O. II, R. 7‑‑‑Objection to non‑joinder ‑‑‑Scope‑‑‑Any such objection is analogous to misjoinder of the causes of action in terms of O.II, R.7, C.P.C. and ought to be taken at earliest possible opportunity.

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

‑‑‑Ss. 151 & 11, Expln. III‑‑‑Consolidation of two suits‑‑‑Principle of constructive res judicata‑‑‑Applicability‑‑‑Two suits on the same cause of action between the same parties were pending before the same Trial Court‑‑‑Earlier suit was at the final stage of decision whereas the subsequent suit was at a preliminary stage‑‑‑Appellant filed application for consolidation of both the suits but the Trial Court declined to do the same‑‑‑Instead of assailing the order of the Trial Court before higher forum, the appellant filed another similar application after one year in the other suit which was also dismissed‑‑‑Validity‑‑‑Where the application for consolidation was repeated after more than one year, on substantially same facts and grounds the appellant could not avoid the implication of principle of constructive res judicata as the same was also applicable to orders passed on applications‑‑‑Appeal was dismissed in circumstances.

Shahzada Sultan Humayun v. Nasiruddin 1984 CLC 3090 and Black's Law Dictionary, 6th Edn. ref.

Ahmed Zamir Khan for Appellant.

G.M. Saleem for Respondents.

Date of hearing: 10th August, 2001.

2002 C L C 571

[Karachi]

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

SHAHJEHAN KHAN and others‑‑‑Appellants

Versus

MUHAMMAD TARIQ and others‑-‑Respondents

High Court Appeal No.215 of 2001, decided on 26th September, 2001.

(a) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 54‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.45‑‑­Conclusive proof of ownership‑‑‑Registered sale‑deed or mutation‑‑­Whether conclusive proof of ownership‑‑‑Where title and ownership is expressly disputed and challenged by defendants in their written statement, registered sale‑deed or mutation may, of course, be an evidence of the ownership in favour of plaintiffs but the same cannot be treated as conclusive proof of their legal right.

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

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑­Interim injunction, grant of‑‑‑Registered sale‑deed was questioned‑‑­Interim injunction in favour of the plaintiffs‑‑‑Contention of the defendants was that as the plaintiffs had not sought declaration about their ownership and title in the suit whereas the other relief, in the form of injunction, possession and mesne profits being dependent upon ownership of plaintiffs, same could not be granted without a declaration about their ownership‑‑‑Validity‑‑‑Where plaintiffs had not sought declaration of their ownership in the suit, a consequential relief of injunction, permanent or interim, could not be granted to them‑‑‑Due to the material omission in the prayer clause in the suit, the plaintiff, prima facie, had no case for grant of an interim injunction in their favour‑‑‑High Court set aside the interim injunction granted in favour of the plaintiff.

(c) Suit‑‑‑

‑‑‑‑ Maintainability of‑‑‑Where there was preliminary objection regarding maintainability of the suit, same should have been decided before any other question involved in the matter.

Muhammad Muzaffarul Haq for Appellants.

Rana Muhammad Ahmed Khan for Respondents.

Date of hearing: .18th September, 2001:

2002 C L C 592

[Karachi]

Before Muhammad Ashraf Leghari, J

Mst. NANHI BEGUM‑‑‑Petitioner

Versus

CUSTODIAN EVACUEE PROPERTY‑‑‑Respondent

Constitutional Petition No.S‑872 of 1974, Civil Miscellaneous Applications Nos.236 and 595 of 1996, decided on 7th February, 2001.

Contempt of Court Act (LXIV of 1976)‑‑‑

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Disobedience of Court order‑‑‑Accused persons were not party to the proceedings in which Court passed the order‑‑‑Neither possession of the petitioner was disturbed, nor the accused persons were party to the proceedings in which the order allegedly disobeyed, was passed by the High Court‑‑‑One of the accused persons had died during pendency of the contempt proceedings‑‑‑Petitioner failed to prove on record that the accused persons were served with the order or they were in knowledge of the order and they had deliberately disobeyed or violated the Court ‑order ‑‑‑Effect‑‑‑No offence of contempt of Court had been proved in circumstances.

Syed Ahmed Shah and another v. Malik Abdul Aziz PLD 1967 SC 42; Muhammad Swaleh v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Abdul Majid and another v. Bashir Ahmed 1988 CLC 1370; Mst. Saeeda Akhtar and others v. Lal Din and others PLD 1981. Lah. 623; Soomar v. Noor Confectionary Works 1988 MLD 206; Lal Chand v. Sohan Lal and others AIR 1938 Lah. 220 and Puzhakkal Edom v. Mahdeva Patter AIR 1919 Mad. 772 ref.

M. Saleem for Petitioner. M. Sharif for Respondent.

Naraindas Motiani for Respondent No.3.

2002 C L C 601

[Karachi]

Before Dr. Ghous Muhammad, Hamid Ali Mirza and Saiyed Saeed Ashhad, JJ

ARIF KHAN and 7 others‑‑‑Petitioners

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Constitutional Petition No.D‑1824, Civil Miscellaneous Applications Nos.5105, 5350 and 5609 of 1998, decided on 1st March, 1999.

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

‑‑‑‑0. XXXIX, Rr. 1 & 2‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Interlocutory application for suspension of impugned action‑‑‑Court, without passing ad interim order, issued notices to opposite‑party, which were served upon them‑‑‑Effect‑‑‑Where notices of a lis were issued to the other side, the latter was expected to maintain a status quo.

Noor Muhammad v. Civil Aviation Authority 1987 CLC 393; Civil Aviation Authority v. Noor Muhammad PLD 1988 Kar. 401; Royal Foreign Currency v. C.A.A. 1998 CLC 374; Sh. Liaquat Hussain v. Federation of Pakistan and others PLD 1999 SC 504 and Ashiq Hussain v. The State PLD 1994 SC 879 ref.

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

‑‑‑‑Art. 204‑‑‑Contempt of Court Act (LXIV of 1976), S.3‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑‑Contempt of Court‑‑‑Party could not be punished for. contempt of Court on mere service of notice of a pending lis, if he did not choose to maintain a status quo‑‑‑Concept of contempt of Court necessitated, inter alia, violation of Court orders.

Ghulam Sarwar v. Ghulam Rabbani PLD 1992 Pesh. 130 ref.

K.M. Nadeem for Petitioner.

S. Sami Ahmed for the Government of Sindh.

Iqbal Raad, A.‑G., Sindh.

Date of hearing: 1st March, 1999.

2002 C L C 607

[Karachi]

Before Mushir Alam, J

Messrs RICE EXPORT CORPORATION‑‑‑Plaintiff

Versus

Messrs A. H. CORPORATION and 3 others‑‑‑Defendants

Suit No. 764 of 1981, decided on 5th November, 2001.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 1 ‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.103, proviso 5‑‑­Interpretation of contract‑‑‑Duty of Court‑‑‑Usage of custom of trade‑--

Effect‑‑‑While interpreting terms of contract, Courts do not employ any consideration or term which is not expressly provided therein‑‑‑Only where any usage, custom of trade or incident of any contract comes on record or where both the parties either concede to existence of any such usage, custom of trade or incident of any contract, or otherwise same is established, then such incident of contract, custom of trade or usage, as may be reasonable and necessary, are read as term and condition of the contract in order to effectively determine rights and obligations of the contracting parties.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 1‑‑‑Mercantile usage‑‑‑Essential features‑‑‑Such features must be universal; precise and certain, uniform in application in particular trade and business must be fair; reasonable and equitable; it is so universally practised that every body in the particular trade knows it or might know if he took pains to acquire; it must be continuous in that it should have existed without interruption as controlling the subject‑matter affected; and it must not be illegal or immoral or opposed to public policy of the State.

Commentary of Contract Act and Law relating to Tenders etc. 9th Edn., p.678 ref.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 148, 149 & 150‑‑‑Bailment contract‑‑‑Faults in the goods bailed‑‑­Failure to disclose the same to bailee‑‑‑Effect‑‑‑In order to constitute effective bailment contract, it is obligatory on the part of the bailer to put the bailee in possession of the goods‑‑‑There must be actual tender and delivery of the goods and acceptance thereof by the bailee‑‑‑Where the bailor fails to bring on record facts which show as to what quantity of goods has been actually handed over to the bailee, then it is only admission on the part of the bailee that can be considered relevant for the purposes of fixing any liability as to the quantity handed over to him‑‑‑In such contract bailor is also obliged to disclose to the bailee the faults in the goods bailed or circumstances that may expose the bailee to extraordinary risk‑‑‑If bailor does not make such disclosure, it is the bailor and not the bailee who has to suffer as provided for under S.150 of the Contract Act, 1872.

(d) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 148, 149 & 150‑‑‑Bailment contract‑‑‑Suit for damages‑‑‑Shortage in quantity of rice stock handed over to the defendant for handling‑‑­Claim of the plaintiff was. that there was shortfall of 19505.3665 Metric Tons of rice stock which was handed over to the defendant‑‑‑Witness appeared on behalf of the plaintiff admitted the shortfall only to the tune of 4078.66 Metric Tons‑‑‑Plea raised by the defendant was that in grain handling natural losses in stock always occurred and the same was normal course as per international practice the loss ranged between 3 % to 5 % ‑‑­Validity‑‑‑In grain handling contract there was inherent risk of diminishing quantity and quality of the foodgrains and ratio of losses was inversely proportionate to the tenure of storage, which might vary from case to case basis‑‑‑Longer the duration, greater the quantum of losses‑‑­Shortfall, in the present case, that had come on record was to the extent of 1.6% which was merely fraction loss even less than acknowledged by research studies‑‑‑Defendant could not be called upon to submit the account for the shortfall which was not only on account of inherent risk but a natural incident and consequences of grain handling contract‑‑­Defendants as bailee could be held liable for the losses if accrued for want of contractor/bailee's due care and negligence‑‑‑Where the plaintiffs failed to show that the defendants were negligent or careless in handling such contract or that the alleged shortfall was in excess of the normal and incidental losses and/or was not the result of natural losses inherent in the foodgrain handling contract, no damage could be claimed from the defendants‑‑‑Suit was dismissed in circumstances.

Arif Hussain Khilji for Plaintiff.

Muhammad Mateen, Attorney, Manager for Defendants.

Dates of hearing: 22nd May and 31st October, 2001.

2002 C L C 634

[Karachi]

Before Muhammad Moosa K. Leghari, J

KANWAR QUTUBUDDIN KHAN‑‑‑Plaintiff

Versus

KARACHI DEVELOPMENT AUTHORITY through Director‑ General ‑‑‑‑Defendant

Civil Suit No.794 of 1999, Civil Miscellaneous Applications Nos.4119 and 9782 of 2000 and 5358 of 1999, decided onl8th October, 2001.

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

‑‑‑‑O. VII, R.11‑‑‑Rejection of plaint‑‑‑For the purpose of disposal of an application for rejection of plaint under O.VII, R.11, C.P.C., the Governments contained in the plaint alone were to be taken into consideration and the same were presumed to be correct.

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

‑‑‑‑S. 9‑‑‑Bar of jurisdiction, inference of‑‑‑Bar of jurisdiction could not readily be inferred unless it was expressly or impliedly barred‑‑‑Even if the jurisdiction of Civil Court was conferred upon Special Tribunal, the Civil Courts being the Courts of ultimate jurisdiction, would have the jurisdiction to look into the illegality or mala fides in the orders passed by the administrative Authorities.

(c) Administration of justice‑‑‑

‑‑‑‑Principle‑‑‑Where a statute had created a right and also had provided a machinery for its enforcement, the party complaining of infringement of such a right must first avail himself of the remedy provided by the statute for such breach before coming to the Civil Court.

Tariq Transport Co., Lahore v. Sargodha‑Bhera Bus Service, Sargodha and 2 others PLD 1958 SC (Pak.) 437; Shagufta Begum v. The Income‑tax Officer, Circle XI, Zone‑B, Lahore PLD 1989 SC 360 and Government of Sindh and others v. Mst. Najma 2001 SCMR 8 ref.

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

‑‑‑‑O. VII, R.11‑‑‑Rejection of plaint‑‑‑No prejudice had been caused to the plaintiff as no final order had been passed‑ against him‑‑‑No cause of action having accrued to the plaintiff to file the suit, plaint was rightly rejected.

PLD 1993 Lah. 301; PLD 1993 Lah. 294; PLD 1979 Kar. 706; PLD 1966 (W.P.) Pesh. 34; 1991 MLD 284; 1974 SCMR 356; PLD 1978 Kar. 464; PLD 1999 SC 41; 2001 SCMR 953; 2001 SCMR 398 and 2000 MLD 1537 ref.

Hafiz Abdul Baqi for Plaintiff.

Nazar Hussain Dhoon for Respondent.

2002 C L C 647

[Karachi]

Before Wahid Bux Brohi, J

Mst. AQEELA MAJEED KHAN‑‑‑Appellant, Versus

ABDUL JABBAR KHAN ‑‑‑Respondent

First Appeal No.21 of 1999, decided on 26th September, 2001.

Appeal (civil)‑‑‑

‑‑‑‑Forum of appeal‑‑‑Determination‑‑‑Foam of civil appeal was to be determined in accordance with the value of the suit as mentioned in the plaint irrespective of fixation of price of disputed property by the Trial Court.

Muhammad Ayub v. Obaidullah 1999 SCMR 394 and National Bank of Pakistan v. Muhammad Akram Khan 2000 CLC 1493 ref.

Muhammad Yaseen Azad for Appellant.

Syed Riaz Haider for Respondent.

Date of hearing: 21st September, 2001.

2002 C L C 673

[Karachi]

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

ARDESHIR COWSJEE and 7 others---Petitioners

Versus

K.B.C.A: and others---Respondents

Constitutional Petition No.D-179 and Miscellaneous Nos.541, 974 and 9 of 2001, decided on 6th September, 2001.

Constitution of Pakistan (1973)---

---Art. 199(1)---Constitutional petition---Necessary parties---Only an aggrieved party and the official person, whose orders or actions are challenged, are parties to a Constitutional petition.

(b) Constitution of Pakistan (1973)---

----Art. 199(1)---"Aggrieved person"---Scope---Public interest litigation---Scope of .definition of "aggrieved person" has been enlarged to accommodate public interest litigation, the private parties, whose rights and interest are involved in the dispute, cannot be deprived of an opportunity to defend their interest and rights under the provisions of Art.199 of the Constitution.

(c) Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code, (V of 1908), 0.1, R.10--­Constitutional petition ---Impleading of necessary parties---Provisions of 0.1, R.10, C.P.C.---Applicability---Intervenors filed application under 0.1, R.10, C.P.C. for impleading them in the petition---Plea raised by the intervenors was that they had already been heard by the-High Court at the time of deciding the question of maintainability of the petition--­Validity---Provisions of O.I, R.10, C.P.C. had no applicability to the Constitutional petition and the intervenors were entitled to join the proceedings to defend their interest as their alleged rights and interest were more relevant for the purpose than the rights and interest claimed by the petitioners---Where the proposed intervenors were heard in the case on the question of maintainability of the petition, High Court declined to debar them from contesting the matter further----Intervenors were allowed to be impleaded in the petition---Application was, allowed in circumstances.

(d) Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), O.XXXI, Rr. 1 & 2--­Constitutional' petition---Interim order, grant of---Provisions of O.XXXIX, Rr. 1 & 2, -C.P.C.---Applicability---Interim order in Constitutional petition is to be passed in exercise of jurisdiction given by Art.199 of the Constitution itself and not under O.XXXIX, Rr. 1 & 2, C.P.C.

(e) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Persons to whom directions can be issued by High Court, in exercise of Constitutional jurisdiction--­--Direction to a builder in private business---Validity---Persons expressly mentioned in the Art.199'of the Constitution include persons performing functions in connection with the affairs of the Federation, .a Province or z local authority---Builder in a private business is not a "person performing functions in connection with the affairs of the Federation, a Province or a local. authority"---No direction to, or order against a private person can be made in a Constitutional petition.

(f) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope--­Direction under Constitutional petition can be issued to an official respondent to do what the law requires him to do, or to refrain from doing what is against law.

(g) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Interim order---Petitioner sought direction in alteration in approved site plan, regularization of construction or issuance of certificate or permission in respect of sale or occupation on the ground that the same were against law ---Validity---­High Court declined to pass any such direction at the interim stage.

(h) Constitution of Pakistan (1970---

----Art. 199---Constitutional, petition---Interim order restraining Authorities from providing utility connection in the building subject-matter of the petition---Validity---Authorities were to see whether the connection being. provided to the respondents was in accordance with law---Where it had not been shown that providing such connection was in violation of any specific legal provision, High Court declined to issue any interim direction to the Authorities.

(i) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Sealing of premises---Dispute was with regard to construction of a building alleged to be against law--­Petitioner sought sealing of non-occupied area of the building--­Validity---Sealing of the building was beyond the scope of jurisdiction given by Art. 199 of the Constitution in circumstances.

Naimur Rehman for Petitioners.

Ali Bin Adam for Respondent No. 1

Farrogh Naseem for Respondent No. 10, Abdul Hafeez Pirzada and Arif Khilji for the Proposed Intervenors.

Abbas Ali, A.A.G. for the State.

Date of hearing: 28th August, 2001.

2002 C L C 679

[Karachi]

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

SHAUKAT ICE FACTORY‑ ‑Appellant

Versus

K.E.S.C. and others-‑‑Respondents

High Court Appeal No.324 of 2000, decided on 7th September, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Interim injunction grant of‑‑‑Necessary ingredients‑‑‑For grant of interim injunction, the Court had to see whether there was an arguable prima facie case in favour of the plaintiff a balance of convenience in his favour and that the plaintiff would suffer irreparable loss in case an interim injunction was nor granted‑‑‑Where none of the ingredients had been considered and discussed in the order the sane/could no: be maintained and was set aside.

Gul Zaman Khan and Gohar Iqbal for Appellant.

Muhammad Sadiq for Respondents.

Date hearing: 21st August, 2001.

2002 C L C 684

[Karachi]

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

ARDESHIR COWSJEE‑‑‑Petitioner

Versus

PROVINCE OF SINDH‑‑‑Respondent

Constitutional Petition No. 1490 and Civil Miscellaneous Applications Nos.4430, 3934 and. 3935 of 2001, decided on 6th September, 2001.

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

‑‑‑‑Art. 199(4)(4‑A)‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑‑Constitutional petition‑‑‑Interim injunction, grant of‑--­Provisions of O.XXXIX, Rr.1 & 2, C. P.C. ‑‑‑Applicability ‑‑‑ High Court has jurisdiction under Art. 199(4) & (4‑A) of the Constitution to made interim order‑‑‑Neither necessary nor permissible to resort to O.XXXIX, Rr.1 & 2, C.P.C. for the purpose of interim order as the provisions of C.P.C. are meant for civil suits, only‑‑‑Existence of cl. (4‑A) in Art. 199 of the Constitution establishes that interim orders in Constitutional petition are to be made in exercise of powers and jurisdiction given by Art.199(4‑A) and riot under O.XXXIX, Rr.1 & 2, C.P.C.‑‑‑Prayer for interim injunction made in Constitutional petition is to be examined with reference to Art. 199 of the Constitution.

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

‑‑‑‑Art. 199(1)(a) & (c)‑‑‑Expression "any person"‑‑‑Issuance of direction to any private person‑‑‑Validity‑‑‑Direction can only be given to `persons performing functions in connection with the affairs of Federation, a Province or a local authority "‑‑‑Persons not performing such functions are excluded‑‑‑Words "any person" are part of the phrase "any person or authority, including any Government, exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court.." and the same is in line with Art.199(1)(a) of the Constitution‑‑‑Words "any person" are to be read it light of the definition of "person" given in Art.199(5) of the Constitution‑‑‑Private and non‑official patties are not subject of the Constitutional provision‑‑‑No order, interim or final, can be passed against such private persons accordingly.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Interim injunction, grant of‑‑­Grievance, of the petitioners was that respondents, were constructing building in violation of the rules prescribed for the construction‑‑‑Interim injunction was sought against sale or occupation of any part of disputed plot or building‑‑‑Validity‑‑‑Petitioners had neither mentioned as to which of the official respondents intended to issue certificate or permission for sale of the disputed property nor same was prohibited by‑law‑‑‑General and blanket prohibition could not be granted‑‑‑Application for grant o1 interim injunction was dismissed in circumstances.

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

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), O.XVIII, R.18‑‑­Constitutional petition‑--‑Site inspection‑‑‑Dispute between the parties was with regard to construction of building against the rules‑‑‑Petitioners filed application under O.XVIII, R.18, ‑C.P.C. for inspection of the site‑‑­Validity‑‑‑High Court dismissed the application as the object was to ascertain disputed facts which could not be done in Constitutional petition.

Naimur Rehman for Petitioner.

Muneer A. Malik along with Abid S. Zuberi for Respondent No.4.

Mushtaq Ahmed Memon for Respondent No.5.

Suhail H.K. Rana for Respondent No.8.

Raja Qureshi, A.G. for the State.

Date of hearing: 30th August, 2001.

2002 C L C 747

[Karachi]

Before Anwar Mansoor Khan, J

AISHA BIBI---Decree-holder

Versus

NATIONAL LOGISTIC CELL, MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN through Commander having its Head Office at Headquarter, National Logistic Transport Fleet New Haji Camp, Moulvi Tamizuddin Khan Road, Karachi and 2 others---Judgment-debtors

Execution No. 165 of 2000, decided on 7th May, 2001.

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

----S. 47---Executing Court cannot go behind the decree.

(b) Sindh Chief Court Rules (O.S.)---

----R. 176---Execution of decree---Claim against another defendant--­Judgment-debtor objected to the execution proceedings on the ground that the Court should recover the decretal amount from the other defendant against whom the Trial Court had not passed any decree and who being an Insurance Company was liable to pay the damages which were decreed against the judgment-debtor---Validity---Judgment-debtor was free to file appropriate and separate proceedings against the insurance company for the recovery of the decretal amount if allowed in law---Such recovery could not be allowed in execution proceedings---Where the judgment­-debtor had paid colossal amount and premium to the insurance company, High Court, in the interest of justice, deferred execution for three months on the request of judgment-debt6r.

Nasir Maqsood along with Aleem Akbar Sheikh for the Decree- Holder.

Abdul Rauf for the Judgment-Debtors Nos. l and 2.

2002 C L C 757

[Karachi]

Before S.A. Rabbani, J

MUHAMMAD YOUNUS‑‑‑Applicant

Versus

NATIONAL INSURANCE CORPORATION and 2 others‑‑‑Respondents

Civil Revision Application No.21 of 2000, decided on 20th May, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 47‑‑‑Executing Court, jurisdiction of‑‑‑Re‑determination of liability‑‑‑One of the judgment‑debtors raised an objection before the Executing Court that since its liability had been limited to certain extent, therefore, decretal amount beyond that extent could not be recovered‑‑­Executing Court rejected the objection but the Appellate Court allowed the appeal and restricted the liability of the judgment‑debtor to the extent that was fixed by the statute‑‑‑Validity‑‑‑Executing Court had no jurisdiction to re‑determine the liability or reconsider the law for the purpose‑‑‑Where decree had become final, the Executing Court had no option but to execute same as it was passed‑‑‑Appellate Court had materially erred in holding that the decree was unexecutable as the liability of the judgment‑debtor was limited by law‑‑‑Appellate Court had wrongly considered the objection at the execution stage‑‑‑Order passed by the Appellate Court was set aside by High Court in circumstances.

Mst. Nasim Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22 ref.

Nasir Maqsood for Applicant.

Siddiq Mirza for Respondent No. 1.

Abdur Rauf Khan for Respondents Nos.2 and 3.

Date of hearing: 18th May, 2001.

2002 C L C 765

[Karachi]

Before Sarmad Jalal Osmany, J

MUHAMMAD HANIF and 2 others‑‑‑Plaintiffs

Versus

KARACHI TRANSPORT CORPORATION through Chairman, Secretary or Director having its office at 3rd Floor, Gulshan‑e‑Iqbal, Civic Centre. Karachi and 2 others‑‑‑Defendants

Suit No. 688 of 1988, decided on 21st October, 2001.

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

‑‑‑‑S. 1‑‑‑Limitation Act (IX of 1908), Ss.6, 7 & First Sched. Art.21‑‑­Suit for damages‑‑‑Limitation‑.‑‑Minor as well as major legal heirs of the deceased jointly filed suit after period of limitation claiming benefit of Ss.6 & 7 of Limitation Act, 1908‑‑‑Validity‑‑‑Provisions of S.7 of Limitation Act taking away a valuable right given under S.6 thereof had to be construed strictly‑‑‑Valuable right had accrued to minor plaintiffs upon death of their father viz. to receive compensation as prayed for in the suit, and the widow or major son of deceased could not give any discharge as regards such right‑‑‑Section 7 of Limitation Act, thus would not apply to such a case.

Farzazzudin v. Pakistan Navy 1991 CLC 1866; Muhammad Aqil v. Akhtar Hussain PLD 1971 Kar. 864; Marium v. Ali Bahadur 1996 CLC 692; Iftikhar Hussain v. K.E.S.C. PLD 1959 (W.P.) Kar. 550; Shamsun Nisa v. K.T.C. PLD 1975 Kar. 914; Bakhtawar v. K.T.C. Suit No.879 of 1986; Marium v. Ali Bahadur Suit No.937 of 1990 (unreported); Pakistan v. Raeesa Begum Civil Petition No.201‑K of 1997; Sindh Employees' Social Security Institutions v. Spencer & Company (Pak.) Ltd. 1998 SCMR 440 and Shaheen Airport Services v. Sindh Employees' Social Security Institution 1994 SCMR 881 ref.

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

‑‑‑‑Ss. 1 & 2‑‑‑Death due to rash and negligent driving‑‑‑Damages, quantum of‑‑‑Average expectancy of life in Pakistan was 70 years‑‑­Deceased at the time of death was aged 53 years‑‑‑Average income of deceased was Rs.7,000‑‑‑Pecuniary benefit to be awarded for 17 year came to Rs.14,28,000 to which 20% was added as increment, and therefrom 116th was deducted as personal expenses of the deceased‑‑­Compensation awarded was Rs.14,28,000 with mark‑up @ 14°6 per annum from the date of filing of suit till payment.

Gul Khan v. K.T.C. 1997 CLC 932; Saeeda Begum v. Government of Sindh Suit No.656 of 1996 (unreported); Roshan Bai v. Pakistan Steel Mills Suit No.697 of 1988; Pakistan Steel Mills Corporation v. Malik Abdul Habib 1993 SCMR 848; Mst. Zaibun Nisa Begum v. Pakistan Coast Guards 1987 MLD 883 and Ameena v. Government of Pakistan 1995 MLD 1922 ref.

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

‑‑‑‑S. 1‑‑‑Suit for damages‑‑‑Death of deceased in traffic accident‑‑­Allegations in the plaint was that death had taken place due to rash and negligent driving of bus owned by defendant‑Corporation by defendant/driver‑‑‑Plaintiffs in support of such allegations, produced in evidence the witness, who had seen the incident himself‑‑‑Statement made in examination‑in‑chief by such witness could not be displaced during his cross‑examination‑‑‑Presence of such witness on the day, time and place of incident had gone unrebutted under cross‑examination ‑‑‑Defendant-­Corporation during evidence took up a plea different than that raised in written statement‑ ‑‑Death of deceased had been caused by wrongful act of defendant/driver while driving bus owned by defendant‑Corporation in a rash and negligent manner.

Syed Afzal Hussain v. K.T.C. PLD 1997 Kar. 253; Fazal Mehmood v. Sardar Khan PLD 1996 Kar. 475; Inam Naqshbandi v. Haji Shaikh Ijaz Ahmed PLD 1995 SC 314; Khursheeda v. Qudratullah 1988 CLC 1062; Rah‑e‑Manzil Transport v. Muhammad Aamin PLD 1963 Kar. 182; Shaikh Abdul Sattar v. Union of India AIR 1970 SC 479; Badat & Co. v. East India Trading C0. AIR 1964 SC 538; 1991 SCMR 2300; Aziza v. Muhammad Sarwar 1997 MLD 2013; Maryam Mirza v. M.M. Kazi 1988 MLD 1651; Roshan Jan v. Pakistan 1997 CLC 1517; Aamir Shah v. Ziarat Gul 1998 SCMR 593; Gul Bana v. Muhammad Ramzan 1982 CLC 1120; Abdul Haque v. Pak Railway 1987 MLD 1703; Nimmi Francis v. M. Saeed Qureshi 1982 CLC 1703; Sher Bano v. Kelh Patel 1986 MLD I11 and Khatoon v. Noor Sher Khan 1988 MLD 1236 ref.

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

‑‑‑Ss. 1 & 1‑A‑‑‑Legal Representatives' Suits Act (XII of 1855). S.1‑‑­Limitation Act (IX of 1908), Ss.6, 7 & First Sched., Art.21‑‑‑Suit for damages‑‑‑Limitation‑‑‑Major as well as minor legal heirs of deceased tiled joint suit after period of limitation claiming benefit of Ss.6 & 7 of Limitation Act‑‑‑Defendant's objection was that under S.1‑A of Fatal Accidents Act, a suit was to be filed in a representative capacity, thus major legal heirs on their'6wn behalf as well as on behalf of minors could file such suit within limitation period particularly in view of S.1 of Legal Representatives' Suits Act, 1855‑‑‑Validity‑‑‑Period of limitation prescribed under Limitation Act for filing of suits, appeals and applications ceased to run by virtue of Ss.6 & 7 thereof against persons being minors or suffering from any other legal disability to file suit‑‑­Suits under S.1 of Fatal Accidents Act, 1855, were to be filed for benefit of deceased's legal heirs/representatives in order to get their rightful share from any compensation awarded by Court‑‑‑Both such provisions of law operated independently of each other and none could defeat the other‑‑‑Suit could be filed in a representative capacity by major legal heir Jf deceased for the benefit of minors, but non‑filing thereof by the former could not come in the way of saving of limitation under Ss.6 & 7 of Limitation Act as the right of minors to claim compensation under Fatal Accidents Act was a statutory right, which could not be allowed to be defeated merely due to non‑filing of suit by major legal heirs for one reason or the other.

Muhammad Aqil v. Akhtar Hussain PLD 1971 Kar. 864 rel.

Gul Bana v. Muhammad Ramzan 1982 CLC 1120; Abdul Haque v. Pak Railway 1987 MLD 1703; Nimmi Francis v. M. Saeed Qureshi 1982 CLC 1703; Sher Bano v. ,Kelli Patel 1986 MLD 111; Khatoon v. Noor Sher Khan 1988 MLD 1236; Gul Khan v. K.T:C. 1997 CLC 932; Saeeda Begum v. Government of Sindh Suit No.656 of 1996; Roshan Bai v. Pakistan Steel Mills Suit No.697 of 1988 ref.

(e) Pleadings‑‑‑

‑‑‑‑ Parties could not be allowed to go beyond their pleadings, otherwise it could give an unfair advantage to the other party.

Syed Afzal Hussain v. K.T.C.. PLD 1997 Kar. 253 and Bin Yamin v. Hakim 1996 SCMR 336 ref.

Muhammad Maqsood for Plaintiffs.

Ch. Muhammad Iqbal, Addl. A.‑G. for Defendants.

Dates of hearing: 5th April, 1999; 20th September, 2nd and 5th October, 2001.

2002 C L C 784

[Karachi]

Before Anwar Mansoor Khan, J

HAKIM ALI‑‑‑ Petitioner

versus

PAKISTAN HERALD PUBLICATION and others‑‑‑Respondents

Suit No. 154 of 1991, decided on 12th September, 2001

Tort‑‑‑

‑‑‑‑ Suit for damages against press publication‑‑‑Fair comments in news item‑‑‑Plaintiff was involved in a criminal case and defendant newspaper published the news with fair comments on the news item‑‑‑Plaintiff was later on exonerated of the charge and assailed the act of publication of comments etc. in suit for damages‑‑‑Validity‑‑‑Plaintiff failed to establish in any manner whatsoever that the news item was in any manner incorrect or that it was not a fair comment‑‑‑Where the news was based on the incident that had occurred, such news was required to be published as it was the matter of public interest for which in fact the newspaper were required to be vigilant‑‑‑Publication and the newspapers were watchdogs‑‑‑It was duty of the newspapers to report any incidence that might have happened with all fair comments‑‑‑Case being not of misreporting at the stage when the news item was published, suit was dismissed.

Dr. Q.M. Qarni v. Khalil‑ur‑Rehman and others PLD 1975 Kar 379; Muhammad Ismail v. Dr. Afzal Mirza 1999 CLC 958 and Hussain Bibi v. Saleh Muhammad PLD 1996 Lah. 50 distinguished.

Halsbury's Laws of England, IVth Edn., Vol. 28, para. 109 ref.

Zameeruddin Ahmed for Plaintiff.

Ziaul Haq Makhdoom for Defendants.

Date of hearing: 12th September, 2001

2002 C L C 805

[Karachi]

Before Zia Perwez, J

DAWOOD and others ‑‑‑Plaintiffs

versus

MUHAMMAD YOUNUS‑‑‑Defendant

Summary Suit No. 1037 and Civil Miscellaneous No.6302 of 2001, heard on 1st November, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXVII, R.3‑‑‑Leave to defend suit‑‑‑Plausible defence‑‑‑Plaintiff on the basis of promissory note, filed suit under O.XXXVII, R.1, C.P.C. for recovery of amount‑‑‑Defendants had attached photo copies of receipt issued by plaintiff acknowledging payment of certain amounts ‑‑‑Effect‑‑­Defendants, had produced sufficient material on record to substantiate that there existed a plausible defence in the suit‑‑‑Leave to defend the suit was allowed subject to furnishing of surety.

Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163; Messrs Kohinoor Textile Mills Ltd. v. Messrs Gharo Textile Mills Ltd. PLD 1986 Kar. 157(2) and Abdul Karim Jaffarani v. United Bank Ltd. and 2 others 1984 SCMR 568 ref.

Mustafa Lakhani for Plaintiffs.

Muhammad Sharif for Defendant.

Date of hearing: 1st November, 2001.

2002 C L C 808

[Karachi]

Before Muhammad Ashraf Leghari, J

LIAQUAT ALI ‑‑‑Appellant

versus

Mst. HAYAT BI‑‑‑Respondent

Miscellaneous Appeal No. 6 of 1990, decided on 11th October, 2001.

(a) Islamic Law‑‑‑

‑‑‑‑Will‑‑‑Alienation of property‑‑‑Extent‑‑‑Muslim under Islamic Law, cannot dispose more than 1/3rd of the surplus of his estate after payment of funerwa'1 expenses and debts‑‑‑Bequest in excess of the one-­third cannot take effect unless the heirs consent thereto, after the death of the testator‑‑‑Half of the property, in the present case, was bequeathed to other persons and half of the property was left for legal heirs‑‑‑If the will was in violation of the principle of Islamic Law, same was illegal and bequest abated ratably,‑if the legal heirs refused to give their consent.

(b) Succession Act (XXXIX of 1925)‑‑‑

‑‑‑‑Ss. 264 & 372‑‑‑Letter of administration and succession, grant of ‑‑­Respondent relied on will duly executed in her favour by the deceased‑‑­Appellant alleged that the will was forged‑‑‑Property in question was jointly allotted in the names of the deceased, his brother, his wife and his younger sister‑‑‑Deceased was not the sole owner of property ‑‑‑Effect‑‑­Where the legal heirs of deceased had not given no objection to the, appellant in his favour, the issuance of letter of administration and succession certificate was rightly refused by the Trial Court as the, appellant was not the only surviving legal heir of deceased‑‑‑High Court declined to interfere with the judgment and decree passed by the Trial Court in succession appeal.

Muhammad Ishaque's case 1991 CLC 1150 ref.

Date of hearing: 18th September, 2001.

2002 C L C 825

[Karachi]

Before Muhammad Afzal Soomro, J

QAMARUDDIN‑‑‑Applicant

versus

PROVINCE OF SINDH through Secretary, Land Utilization, Board of Revenue, Hyderabad through Deputy Commissioner Ghotki and 4 others‑‑‑‑ Respondents

Civil Revision No.45 of 1996, decided on 7th September, 2001.

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

‑‑‑‑O. XX, R.5 & O.XLI, R.31‑‑‑Judgment‑‑‑Contents of judgment‑‑­Failure to give decision on each issue‑‑‑Trial Court while deciding the suit had framed six issues but did not extend reasons separately on all issues and decreed the suit‑‑‑While deciding appeal the Appellate Court had also not decided the appeal issue‑wise‑‑‑Validity‑‑‑Both the Courts below had disregarded mandatory provision of O.XX, R.5, C.P.C. & O.XLI, R.31, C.P.C. respectively‑‑‑Where in the judgment, the Appellate Court had not stated points for determination, decisions thereon and the reasons for its findings, the same was not a "judgment" according to law‑‑‑ Trial Court and Appellate Court having acted in exercise of its jurisdiction with material irregularity, such judgment and decree was set aside and the case was remanded to the Appellate Court for decision afresh.

Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816; Muhammad Hayat and others v. Ali Muhammad and others 1982 CLC 2380; Muhammad Hafeez v. Jalaluddin and others 1981 SCMR 1171; Khawaja Muhammad Akbar v. Khawaja Fateh Muhammad 1993 MLD 76; Bashir Ahmed v. Ghulam Hyder 1991 MLD 360; Mian Muhammad Latif v. Province of West Pakistan PLD 1970 SC 180 and Anwar Hussain v. Deputy Settlement Commissioner, Larkana 1983 CLC 851 ref.

(b) Judgment‑‑‑

‑‑‑‑ Good judgment‑‑‑Characteristics‑‑‑Good judgment must be self-­evident and self‑explanatory‑‑‑In other words it must contain reasons which should justify conclusions arrived at and the reasons should be such that a disinterested reader can find same convincing or at least reasonable.

Abdul Fatah Malik and Abdul Sattar Soomro for Applicant.

Abdul Ghafoor Mirani and Mumtaz Ali Siddiqui for the State.

Date of hearing: 20th August, 2001.

2002 C L C 836

[Karachi]

Before Ghudam Nabi Soomro and Muhammad Mujeebullah Siddiqui, JJ

CORPORATION ENGINEERING (PVT.) LIMITED‑‑‑Appellant

Versus

PAK ARAB REFINERY LIMITED‑‑‑Respondent

High Court Appeal No.323 of 1999, decided on 4th February, 2002.

Arbitration Act(X of 1940)‑‑‑

‑‑‑‑S. 28‑‑‑Power of Curt to enlarge time for making award‑‑‑Appellant requesting for extension of time‑‑‑Refusal of Trial Court to enlarge such time‑‑‑Validity‑‑Appellant had not been diligent in pursuing arbitration proceedings, but had been lethargic and negligent‑‑‑Arbitration proceedings commenced in year 1.984, but even after expiry of 17 years, no progress had been made whatsoever‑‑‑No evidence was left with respondent, because with the lapse of time, all the concerned persons working with respondent had either retired or died‑‑‑Appellant had been himself responsible for inordinate delay in completion of arbitration proceedings‑‑‑Discretion vested in Court could not be exercised fn favour of a per‑son who had adopted dilatory tactics‑‑‑Even otherwise enlargement of time would amount to putting a premium on a person on his‑ own fault and delaying tactics‑‑‑Trial Court while looking to all the circumstances and facts on record had rightly refused to extend time, to which no exception could be taken‑‑‑Appeal was dismissed in circumstances.

Pakistan v. Gayer & Co., Karachi PLD 1964 Kar. 9; Civil Aviation Authority, Karachi v. Rist Consultants (Pvt.) Ltd. 1998 SCIt1R 2393; Messrs Vaseem Construction Company v. Province of Sindh and 4 others 1985 MLD 397 and J.W. Oliver v. Mian Dost Muhammad AIR 1935 Lah. 191 ref.

Bilal A. Khawaja for Appellant.

H. A. Rehmani for Respondent.

Dates of hearing: 9th; 10th and 16th October, 2001.

2002 C L C 857

[Karachi]

Before Zia Perwez, J

Syed AZIZ AHMAD‑‑‑Plaintiff

versus

Messrs BOLAN BANK LIMITED through President‑‑‑Respondent

Civil Miscellaneous Applications Nos.5954 in Suit No. 1091 of 2001 and 5998 of 2001 in Suit No. 1097 of 2001, decided on 7th January, 2002.

(a) Enforcement of Shariah Act (X of 1991)‑‑‑

‑‑‑‑S. 4(b)‑‑‑Interpretation of laws‑‑‑Two or more interpretations of a law‑‑‑Where two or more interpretations of law are equally possible, the provisions of S.4(b) of the Enforcement of Shariah Act, 1991, would be applicable.

(b) Master and servant‑‑‑

‑‑‑‑ Unwilling master‑‑‑Forcing of servant upon unwilling master‑‑­Validity‑‑‑Not possible in law to grant servant a decree against unwilling master that he is still his servant‑‑‑Servant cannot be forced upon his master‑‑‑Master is always entitled to say that he is prepared to pay damages for breach of contract of service but does not accept the services of the servant.

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

‑‑‑‑Ss. 21(a)(b) & 42‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2‑‑‑Interim injunction, grant of‑‑‑Master and servant, relationship of‑‑‑Contract of personal service, enforcement of‑‑‑Plaintiff being employee of the defendant‑Bank, filed the suit assailing termination letter‑‑‑Interim injunction was sought against operation of termination letter‑‑‑Validity‑‑‑Contract for personal service could not be specifically enforced as the same appeared from the provisions of S.211b) of the Specific Relief Act, 1877‑‑‑Was not even necessary to invoke 5.21(b) of the Specific Relief Act, 1877, for such a contract was unenforceable on account of S.21(a) of the Specific Relief Act, 1877, wherein it was provided that a contract for the non‑performance of which compensation in money was adequate relief, could not be specifically enforced‑‑‑Where there was a contract between a master and a servant the master agreeing to pay the salary and the servant agreeing to render personal service it was obvious that money compensation was full relief, for, all that the servant was entitled to under the contract was his salary‑‑‑Breach of contract could give rise to only two reliefs, damages or specific performance‑‑‑If specific performance was barred, the only relief available was damages‑‑‑When a master, in breach of his contract refused to employ the servant the only right that survived to the servant was the right to damages and the decree for damages was the only decree that could be granted to him‑‑‑Where the servant was entitled to money from the master, he could not claim a declaration as to his such entitlement and servant, in such a case must sue for money‑‑‑Only right that survived on account of breach of contract was the right to sue for damages‑‑‑For purpose of termination, it was sufficient that the master when he filed the written statement or appeared in Court, took up the position that the servant was no longer his servant and that his services had been terminated by him‑‑‑Assuming that before the suit there was no valid termination of services there was a breach of contract when the master appeared and made a statement to the effect that the relationship of master and servant had necessarily ended‑‑‑Where ‑master was a defendant to the suit, he was contesting the suit and contended that the plaintiff was not his servant, no decree for declaration that the servant held the post could be passed against the master‑‑‑By allowing interim injunction, a new situation would be created in the present case‑‑‑High Court declined to grant interim injunction to the servant against the master‑‑‑Application was dismissed in circumstances. ‑‑‑[Master and servant].

M. Daryab Yousuf Qureshi v. Chairman, WAPDA PLD 1983 FSC 17; Commissioner of Income‑tax, Peshawar Zone, Peshawar v. Messrs Siemen A.G. 1991 PTD 488; Commissioner of Income‑tax, Peshawar v. Messrs Siemen A.G. PLD 1991 SC 368; Shahid Mehmood v. Karachi Electric Supply Corporation 1997 CLC 1936; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Co. Ltd. PLD 1991 SC 14; Sui Southern Gas Company Ltd. v. Engineer Naraindas and others 2001 PLC (C.S.) 743; Muhammad Ramzan Qureshi v. Federal Government and others PLD 1986 FSC 200; Province of West Pakistan through Deputy Commissioner, Hyderabad and another v. Malik Asghar Khan 1971 SCMR 569; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139; Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. 1995 SCMR 453; Mst. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; United Bank Ltd. and others v. Ahsan Akhtar and others 1998 SCMR 68; Messrs Telephone Industries of Pakistan v. Sindh Labour Appellate Tribunal 1998 PLC (C.S.) 221; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Pakistan International Airline Corporation and 5 others v. Muhammad Izharul Ahsan Qureshi PLD 1979 Kar. 640; Agricultural Development Bank of Pakistan and 3 others v. Anwar Hussain Jatoi PLD 1982 Kar. 313; Mothey Krishna Rao v. Grandhi Anjaneyulu and others AIR 1954 Mad. 113; Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508; Pakistan and others v Public at Large and others PLD 1987 SC 304; Managing Director, Ittehad Chemicals Ltd., Kala Shah Kaku, District Sheikhupura and 2 others v. Mushtaq Ahmed 1997 MLD 798; Federation of Pakistan v. Ali Ahmed Qureshi 2000 CLC 1557; The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176; The State of Orissa v. Madan Gopal Rungta AIR 1952 SC 12; Imtiaz Hussain v. Government of Pakistan through Secretary, Ministry of Work, Estate Islamabad and 2 others 1992 CLC 1122; Chairman, Pakistan Board Casting Corporation, Islamabad v. Nasir Ahmed and 3 others 1995 SCMR 1593 and Union of India v. Ramchandra AIR 1981 SC 101 ref.

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

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Interim injunction, grant of‑‑‑Jurisdiction of Court‑‑‑Scope‑‑‑While granting interlocutory relief, the Court maintains the situation as prevailing at the time of institution of proceedings and does not create a new situation.

Kh. Shamsul Islam for Plaintiffs (in both Suits).

Faisal Arab for Defendants (in Suit No. 1091 of 2001).

Shahid Anwar Bajwa for Defendants (in Suit No. 1097 of 2001).

Dates of hearing: 27th and 29th November, 2001.

2002 C L C 866

[Karachi]

Before S. Ahmed Sarwana, J

LAND ACQUISITION OFFICER/COLLECTOR, KHAIRPUR‑‑‑Appellant

versus

Mir GHULAM ABID and 9 others‑‑‑‑Respondents

Civil Appeal, No.1 of 2001, decided on 8th February, 2002.

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

‑‑‑‑Ss. 23(2), 34 [as amended by Land Acquisition (West Pakistan Amendment) Act (III of 1969)] & 54‑‑‑Land Acquisition (West Pakistan (Amendment) (Repeal) Ordinance (VI of 1971), S.3‑‑‑Civil Procedure Code (V of 1908), Ss.114, 151, 152, 153 & O.LXVII, R.1‑‑‑Award of compulsory acquisition charges and interest‑‑‑Trial Court omitted to pass order with regard to such amounts‑‑‑Landowners' application under Ss. 114, 151, 152, 153 & O.LXVII, R.1, C.P.C., for granting payment of such amounts was allowed by the Trial Court‑‑‑Contention of the Authority was that original order determining the compensation as well as rectification order were void ab initio; and that non‑specification of date of deposit by Land Acquisition Officer in both such orders had made them void‑‑‑Validity‑‑‑While determining the award, Trial. Court had inadvertently omitted to include such two payments, which it was required to do under the law‑‑‑Defect/omission/error crept in judgment did not‑fall either within the purview of S.152, C.P.C., as there was no clerical or arithmetical mistake in the order or under S.153, C.P.C. as there was no defect or error in the proceedings‑‑‑Such defect/omission/ error in judgment would fall under S.114, C.P.C., as the same was apparent on the face of record that Trial Court had overlooked the relevant applicable provisions and had made the mistake of not awarding compulsory acquisition charges under S.22(3) and interest under S.34 of the Act‑‑‑Trial Court could‑ remove such defect, rectify such error or, fill in the omission in exercise of its inherent powers‑‑‑Trial Court had corrected the mistake/filled in the omission by exercising its power under S.114 and/or S.151, C.P.C.‑‑‑Impugned judgment/order in its un­amended or unrectified state could not under any principle of law be termed as void or unenforceable‑‑‑Judgment supported the purpose for which the same had been passed except that the same had not provided the full benefit, which defect could be cured by taking action under S.114 and/or S.151, C.P.C.‑‑‑Such simple omission by oversight of Court could be filled in, corrected, ,cured or rectified at any time‑‑‑Non-­inclusion of payment of interest under S.34 of the Land Acquisition Act could not render the award as unenforceable or that Trial Court had no jurisdiction to correct its inadvertent omission‑‑‑Trial Court had committed mistake while ordering payment of interest @ Rs.8 per cent. under S.34 of the4 Act‑‑‑Amendment made by Land Acquisition (West Pakistan Amendment) Act, 1969, had been withdrawn by Land Acquisition (West Pakistan Amendment) (Repeal) Ordinance, 1971 and by virtue of newly added S.3 thereof the interest payable would not be in excess of 6 % per annum‑‑‑High Court in exercise of powers under Ss.114 & 151, C.P.C. amended the award and ordered that landowners were entitled to payment of simple interest on award @ 6 % only‑‑‑Impugned order read with rectification order could not be termed as void by any stretch of imagination in circumstances.

PLD 1964 SC 97 and Conforce Ltd. v. Syed Ali Shah PLD 1977 SC 599 ref.

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

‑‑‑‑S. 54‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.33‑‑‑Appeal, dismissal of‑‑‑Award of compensatory costs‑‑‑Grounds urged in support of appeal by counsel were, prima facie, vexatious to the knowledge of appellant as he had neither researched the law nor advanced any cogent argument nor cited any law in support thereof‑‑‑Appellant had wasted precious time of the Court, which could have been utilized fruitfully in the administration of justice in other cases‑‑‑High Court while dismissing the appeal ordered the appellant to pay compensatory costs of Rs.10,000 to the respondents.

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

‑‑‑‑S. 54‑‑‑Limitation Act (IX of 1908), Art.156‑‑‑Appeal filed on 2‑2‑2001 against impugned order, dated 9‑10‑1995 and 7‑4‑1996, was barred, by limitation.

(d) Words and phrases‑‑‑

-----Void"‑‑‑Meaning.

Black's Law Dictionary, 6th Edn., 1990; Corpus Juris Secundum, Vo1.92 pp.1021‑1022 and Tamizuddin Ahmed v. Government of East Pakistan PLD 1964 Dacca 795 ref.

(e) Words and phrases‑‑‑

-------- Void order"‑‑‑Connotation‑‑‑"Void order" is an order, which has no legal force or binding effect or which is not capable of being enforced by law or unable in law to support the purpose for which the same was intended or an order passed by a Court or Tribunal, which lacks competence or is ineffectual so that nothing can cure it.

Zahoor Ahmed v. Mahmood Ali and another PLD 1977 Lah. 1377; Chief Settlement Commissioner v. Muhammad Fazil PLD 1975 SC 331 and Conforce Ltd. v. Syed Ali Shah PLD 1977 SC 599 rel.

Ghulam Dastagir Shahani, Addl. A.‑G. for Appellant.

Imdad Ali Awan for Respondents.

Dates of hearing: 4th September and 19th October, 2001.

2002 C L C 876

[Karachi]

Before Shabbir Ahmed and Muhammad Moosa K. Leghari, JJ

IMAM BUX ‑‑‑ Petitioner

versus

SENIOR CIVIL JUDGE/RENT CONTROLLER, DISTRICT MALIR, KARACHI and others‑‑‑Respondents

Constitutional Petition‑ No.2530 of 2001, decided on 26th December, 2001.

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

‑‑‑‑S. 15‑--Constitution of Pakistan (197.3), Art.199‑‑‑Constitutional petition‑‑‑Default in payment of rent‑‑‑Denial of relationship of landlord and tenant‑‑‑Tenant during continuance of tenancy entered into sale agreement with landlord‑‑‑Tenant denied his liability to pay the rent after execution of sale agreement‑‑‑Rent Controller accepted the application‑‑--First Appeal filed by tenant was dismissed‑‑‑Contention of tenant was that since there was dispute with regard to relationship of landlord and tenant between ‑the parties, he was not liable to pay rent till his suit filed for specific performance of agreement to sell was finalized; and that Rent Controller had not passed any order for deposit of rent, thus his ejectment on ground of default was illegal‑‑‑Validity‑‑‑Possession of tenant over disputed premises was not in pursuance of sale agreement, but by virtue of his being tenant in the premises‑‑‑Tenant had disputed the relationship of landlord and tenant and had committed default in payment of rent quite wilfully and deliberately‑‑‑Issuance of directions to tenant for deposit of rent, in such circumstances, was not the mandatory requirement‑‑‑Findings of fact recorded by two Courts below were just, proper, legal and valid, wherein no perversity was found‑‑‑Constitutional petition was dismissed in limine.

Iqbal and others v. Mst. Rabia Bibi and another PLD 1991 SC 242 and Nabi Bux v. Mst. Naseem 2000 SCMR 1604 ref.

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

‑‑‑‑S. 15‑‑‑Landlord entering into sale agreement with tenant ‑‑‑Effect‑‑­Such contract would not create any interest in or charge on such property‑‑‑Such tenant of premises would continue to be tenant and would be bound to pay rent to landlord.

Khawaja Anwar Hussain's case PLD 1986 Kar. 74 rel.

Muhammad Saleem for Petitioner.

2002 C L C 884

[Karachi]

Before Anwar Mansoor Khan, J

Master ABDUL MAJEED‑‑‑Appellant

versus

Haji MUHAMMAD BACHAL and another‑‑‑Respondents

First Rent Appeal No. 116 of 1987, heard on 11th December, 2001.

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

‑‑‑‑S. 15‑Civil Procedure Code (V of 1908), O.VI, R.17‑‑‑Eviction proceedings‑‑‑Pleadings, amendment of‑‑‑Application was filed by tenant to raise new plea in defence‑‑‑Such amendment Was sought after the close of evidence of landlord‑‑‑Validity‑‑‑Amendment sought was an afterthought and amounted to change the entire pleadings by bringing new plea in defence and the same could not be allowed at such stage ‑‑‑No amendment could be allowed which would change the nature of the pleadings and bring new' grounds and documents that were available before and could be pleaded at the first instance‑‑‑Rent Controller had rightly dismissed the application as through the amendment the tenant intended to introduce new facts to change the entire complexion of the pleadings‑‑‑Tenant should have introduced the facts and documents which were with him and had not been procured or acquired at a subsequent date‑‑‑No plausible ground was given by the tenant in the application as to why the documents or grounds were not taken up at the time of the filing of the objections at the initial stage‑‑‑High Court declined to interfere with the order passed by the Rent Controller in circumstances.

Abdul Rashid alias Muhammad Rashid v. Muhammad Hanif and 2 others 1994 SCMR 2035; Tariq Mehmood Niazi v. Nadeem Afzal and Another PLD 1996 Lah. 429; Abdul Ghaffar v. Raees Muhammad Khan and 5 others 1991 CLC 185; Malik Riaz Ahmad Khan and others v. Inayatullah Qureshi and others 1989 MLD 244; Muhammad Ashraf v. Jehan Shah 1989 MLD 446; Azizur. Rehman v. Muhammad Yasin 1989 MLD 1445; Sher Khan v. Haji Naqeebuddin 1995 MLD 148 and Mrs. Freni A. Cavina v. Mrs. Dhunmai Phiroze Dalal PLD 1991 SC 265 ref.

(b) Pleadings‑‑‑

‑‑‑‑ Amendment of pleadings‑‑‑Principles‑‑‑Any amendment, that is sought which changes the nature of the pleadings cannot be allowed.

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

‑‑‑‑S. 15‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17‑‑‑Ejectment proceedings‑‑‑Adjustment of rent in property tax‑‑‑Procedure‑‑‑Upon payment of tax, the tenant was liable to give notice to the landlord and upon landlord refusing to accept the same, the tenant would have the authority thereafter to adjust the same from the rent.

Mrs. Afia Baig v. Messrs Pakistan State Oil Company Ltd. PLD 1991 Kar. 239; Habib Ahmed Bhai v. Allah Noor and others 1992 MLD 2399 and Mrs. Hazarbai Merchant and another v. Muhammad Ismail 1984 SCMR 406 ref.

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

‑‑‑‑S. 15‑‑‑Ejectment of tenant‑‑‑Default in monthly rent‑‑‑Raising of new plea‑‑‑Adjustment of property tax‑‑‑Payment of the tax was never stated in the written statement and did not appear till the evidence of the landlord had been led‑‑‑Tenant filed application for the amendment of pleadings wherein he wanted to introduce the plea of adjustment of the property tax in monthly rent‑‑‑Reason for non‑mention of the fact was inadvertence‑‑‑Tenant had continued to deposit rent even before the death of the first landlord and had not claimed adjustment of the property tax from the earlier landlord during his lifetime‑‑‑Rent Controller dismissed the application and having found the tenant defaulter in the monthly rent allowed the ejectment petition‑‑‑Validity‑‑‑Mere reference to the fact that the tenant had forgotten to mention the fact of adjustment of rent in property tax was not sufficient‑‑‑In the absence of any agreement, there was malice in attempting to show that the property tax was the liability of the landlord‑‑‑In view of low rent, the property tax was also accepted by the tenant to be his liability as such, never demanded the same either from the previous landlord or from the new landlord till such time it was seen from the evidence that the tenant would not have a case to defend‑‑­Rent Controller had rightly dismissed the application for amendment as the tenant intended to introduce new facts‑‑‑Eviction order passed by the Rent Controller was correct and High Court declined to interfere with the same‑‑‑Appeal was dismissed in circumstances.

Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Ch. Abdul Rashid v. Ch. Muhammad Tufail and others PLD 1992 SC 180; Atlantic Steamer's Supply Company v. m.v. Titisee ‑and others PLD 1993 SC 88; Mst. Saeeda Khatoon v. Muhammad Ahmad Latifi 1985 CLC 1392; National Shipping Corporation v. Messrs A.R. Muhammad Siddik and another 1974 SCMR 131; Ghulam Nabi v. Sardar Nazir Ahmad 1985 SCMR 824, Kaniyalal v. Muhammad Ismail 1982 CLC 1106; Aftab Ahmed v. Mrs. Haziq and 5 others PLD 1985 Quetta 108; National Bank of Pakistan and another v. Messrs Film Exhibitors Ltd. 1987 CLC 1547; Lithocraft Corporation v. A. Habib through his 9 Legal Heirs 1988 CLC 272; Pakistan Steel Products, Karachi v. The Controlling Authority, Karachi Municipal Corporation, Karachi and 2 others PLD 1977 Kar. 1027; Commerce Bank Ltd. v. Mst. Sugaran Bai and 3 others PLD 1987 Kar. 136; Mrs. Sarwat Siddique and others v. Muhammad Yousaf NLR 1985 Civil 569 and Abdul Hameed v. Abdul Aziz 1992 MLD 1361 ref.

Raja Khan for Appellant.

Ahmed Ali Shaikh for Respondent.

Date of hearing: 11th December, 2000.

2002 C L C 899

[Karachi]

Before Wahid Bux Brohi, J

DABIR‑UR‑REHMAN‑‑‑ Appellant

versus

Dr. Syed BAQUR ASKAARY‑‑‑Respondent

First Appeal No.63 of 1995, decided on 6th September, 2001.

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

‑‑‑‑O. XXXVII, Rr.2, 3, 4 & S.9‑‑‑Limitation Act (IX of 1908), S.3 & Art.64‑A‑‑‑Suit for recovery of amount‑‑‑Limitation‑‑‑Delay, Condonation of‑‑‑Question of limitation‑‑‑ Whether such question can be raised before passing of leave granting order‑‑‑Suit which was decreed ex parte was barred by time as it was filed after a period of three years and five months from the date when cheque issued by the defendant was dishonoured‑‑‑Application filed by the defendant under S.9 & O.XXXVII, R.3, C.P.C. and then under O.XXXVII, R.4, C.P.C. for setting aside ex parte decree passed against him remained undecided‑‑­Court under S.3 of Limitation Act, 1908, which was a mandatory provision of law, was under legal obligation to consider the point of limitation‑‑‑Defendant was in no way responsible for the delay on the part of the plaintiff for filing time‑barred suit‑‑‑Absence of order granting would not counteract the effect of limitation and would not make a time‑barred suit a maintainable one‑‑‑Judgment and decree passed by the Trial Court were set aside and suit was dismissed as barred by time.

Muhammad Buta v. Habib Ahmed PLD 1985 SC 153; Cotton Export of Pakistan (Pvt.) Ltd. v. Nagina 1993 CLC 2217; S.M. Akil Fikree v. Muhammad Qamaruz Zaman PLD 1982 Kar. 745; Muhammad Yousaf v. Abdul Majid PLD 1993 Lah 244 and Binyameen v. Hakim 1996 SCMR 336 ref.

(b) Practice and procedure‑‑‑

‑‑‑‑Practice of lower Courts of ignoring the interlocutory applications and not passir3 any judicial order thereon was deprecated by High Court.

Ibrahim v. Ismail PLD 1976 Kar. 1075 and Pak Carpet Industries Limited v. Government of Sindh 1993 CLC 334 ref.

Ms. Sadaf for Appellant.

Kazim Hussain for Respondent.

Date of hearing: 15th August, 2001.

2002 C L C 906

[Karachi]

Before Shabbir Ahmed, J

Dr. Malik MUHAMMAD ARSHAD KHAN‑‑‑Petitioner

versus

Ch‑ MUHAMMAD ASHRAF and another‑‑‑Respondents

Judicial Miscellaneous No. 18 of 2001, decided on 28th January, 2002.

Sindh Chief Court Rules (O.S.)‑‑‑

‑‑‑‑R. 128(v), Chap. 1, Appendix C‑‑‑Nazir's entitlement to fee‑‑‑Nazir could not claim. fee in respect of attachment of property only‑‑‑If Nazir was appointed as a Commissioner for sale of property in suit or execution, he was entitled for fee, but no fee was permissible on attachment.

Hassan Inamullah for Petitioner.

Saalim Salam Ansari for Respondent No. l.

2002 C L C 907

[Karachi]

Before Zahid Kurban Alvi and Muhammad Mujeebullah Siddiqui, JJ

COLLECTOR OF SALES TAX AND CENTRAL EXCISE (WEST), KARACHI‑‑‑Appellant

versus

Messrs CALTEX OIL PAKISTAN LIMITED and another‑‑‑Respondents

Special Central Excise Appeal No.120 of 2000, decided on 15th September, 2001.

Central Excises Act (I of 1944)‑‑‑

‑‑‑‑S. 3‑‑‑Central Excise Rules, 1944, Rr.139 & 143‑‑‑Transfer of goods from one portion of premises to another‑‑‑Liability to pay central excise duty‑‑‑Company stored goods in warehouse for which it had paid excise duty‑‑‑On transfer of goods from one portion of premises to another, company was not liable to pay central excise duty.

Shakeel Ahmed for Appellant.

Mrs. Navin Merchant for Respondent No. 1.

Date of hearing: 21st August, 2001.

2002 C L C 921

[Karachi]

Before Nasim Hussain Siddiqui and Ghulam Rabbani, JJ

PAHLWAN and others‑‑‑Petitioners

versus

GOVERNMENT OF SINDH and others‑‑‑‑Respondents

Constitutional Petition No.2068 and Miscellaneous Application No.5431 of 1997, decided on 10th May, 1999.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Auction proceedings‑‑‑Petitioners had challenged auction proceedings disputing the manner and mode of those proceedings and had prayed for re‑auction of the land,‑Petitioners, however, raised a new plea travelling beyond averments of Constitutional however, raised a new plea travelling beyond averments of Constitutional petition‑‑‑Such plea could not be permitted to be raised‑‑‑No legal point had been raised by petitioners but had prayed only to upset auction proceedings without impleading the auction‑purchaser‑‑‑Petitioners having come with unclean hands‑‑‑Constitutional petition was not maintainable.

P.M. Amer for Petitioners.

Naseem Qamar for Respondent No.2.

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

Date of hearing: 13th April, 1999.

2002 C L C 925

[Karachi]

Before Sabihuddin Ahmed and Shaiq Usmani, JJ

HAJI and others‑‑‑Petitioners

versus

SINDH GOVERNMENT and others‑‑‑Respondents

Constitutional Petition No.51‑D of 1998, decided on 25th June, 1998.

Sindh Seed Corporation Act (II of 1976)‑‑‑

‑‑‑‑Ss. 3, 14 & 15‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Occupancy right in respect of Government land‑‑‑Petitioners who claimed to be Haris in cultivating possession of agricultural land in dispute had claimed that they had been in cultivating possession of the land for several years, had raised construction thereon and had acquired occupancy rights‑‑‑Petitioners had challenged sate of lands pursuant to a public auction contending that they were entitled to be, granted proprietary rights in respect of lands under policies issued by Government from time to time‑‑‑Petitioners were unable to show any provision of law whereby they had acquired a right to have lands transferred to them and no restriction was on powers of Government to dispose of lands‑‑‑Petitioners who had more efficacious remedy by way of civil suit could not challenge sale of lands through auction in Constitutional petition.

Mumtaz Ali and others v. Government of Sindh and others C. P. D. 968 of 1997 ref.

Muhammad Yousif Leghari for Petitioners.

Naseem Qamar for Respondent No. l

Mian Khan Malik, A.A.‑G. for Respondent No.2.

Abdul Hayee Memon for Respondent No.3.

2002 C L C 1095

[Karachi]

Before Zahid Kurban Alvi and Muhammad Mujeebullah Siddiqui, JJ

Messrs REGAL CERAMICS LIMITED‑‑‑Appellant

versus

CUSTOMS, SALES TAX AND CENTRAL EXCISE APPELLATE TRIBUNAL, KARACHI and another‑‑‑‑Respondents

Special Customs Appeals Nos.126 to 132 of 2000, decided on 31st August, 2001.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 32(2)‑‑‑Notification S.R.O.1284(I)/90, dated 13‑12‑1990, Table‑l‑‑‑Customs duty‑‑‑Recovery notice‑‑‑Limitation‑‑‑Benefit of Notification S.R.O.1284(I)/90, dated 13‑12‑1990‑‑‑Applicability‑‑‑Notice was issued to the importer on 22‑4‑1995, alleging that the machinery imported by him in the year 1991, was cleared duty free but since the same was not installed 10 kilometers away from the Municipal Limits, therefore, benefit of the Notification could not be granted‑‑‑Contention of the importer was that the notice was barred by limitation ‑‑‑Validity‑‑­Where the Customs Authorities intended to apply the provisions of S.32(2) of the Customs Act, 1969, then the notice Was to be served within three years of the relevant date‑‑‑Show‑cause notice, in the present case, was barred by limitation‑‑‑Finding of the Tribunal based on the interpretation of the Notification S.R.O.1284(I)/90, dated 13‑12‑1990 was illegal and unjustified keeping, in view that nowhere it had been alleged that the machinery had been shifted from the place where it was installed‑‑‑Appeal was allowed in circumstances.

Maula Dad Khan v. West Pakistan Bar Council PLD 1975 SC 469 and Federation of Pakistan v. Ibrahim Textile Mills 1992 SCMR 1898 ref.

Makhdoom Ali Khan for Appellant

Jawaid Farooqui for Respondents

Date of hearing: 16th August, 2001

2002 C L C 1109

[Karachi]

Before Sabihuddin Ahmed and Syed Ali Aslam Jafri, JJ

Mst. YASMEEN KAUSAR‑‑‑Petitioner

versus

KARACHI DEVELOPMENT AUTHORITY (K.D.A.) through Director‑General and 3 others‑‑‑Respondents

Constitutional Petition No.D‑1438 of 1993, heard on 19th February, 2002.

(a) Karachi Development Authority Allotment Regulations‑‑-

‑‑‑‑Reglns. 6(d) & 23‑‑‑Allotment of plot‑‑‑Power to enhance rates of occupancy value‑‑‑Prospective effect of the enhanced rates‑‑‑Karachi Development Authority could not enhance the rate of occupancy value without approval of the Provincial Government‑‑‑Even if such approval was accorded, the new rates would not exceed 3 % of the original occupancy value and could only apply prospectively and not to the allotments made earlier.

Abdul Majeed v: K.D.A. 1992 MLD 2401 ref.

(b) Karachi Development Authority Allotment Regulations‑‑‑

‑‑‑‑Reglns. 6(d) & 23‑‑‑Contract Act (IX of 1872), S.74‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Occupancy value rates, enhancing of‑‑‑Charging of impost‑‑‑Dispute was with regard to the increase of rates of the occupancy value and charging of the impost‑‑­Principles‑‑‑Impost could neither be treated as a tax levied under statutory authority nor a fee for services rendered‑‑‑Impost could only be treated as penalty for breach of contract, which could be claimed under S.74 of the Contract Act, 1872, provided that was reasonable and did not exceed the amount mentioned in the contract‑‑‑Authorities could riot claim mark‑up on non‑utilization fee and the maximum limit must be confined to 3% of the original occupancy value‑‑‑Demand made by the authorities was set aside‑‑‑Petition was allowed in circumstances.

S.M. Yaqoob for Petitioner.

Nazar Hussain Dhoon for. Respondent No. 1.

M. Iqbal Memon for Respondent No.2.

Dates of hearing: 12th, 13th, 14th and 19th February, 2002.

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2002 C L C 1228

[Karachi]

Before Mushtaq Ahmed Memon, J

Mst. SHAHIDA ALI ‑‑‑ Plaintiff

versus

KARACHI ROAD TRANSPORT CORPORATION through Chairman and another‑‑‑‑Defendants

Suit No‑676 of 1987, Civil Miscellaneous Applications Nos.2306 and 2307 of 1997, decided on 21st November, 1997.

Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Civil Procedure Code (V of 1908), S.64 & O.XXI, R.52‑‑‑Suit for compensation‑‑‑Execution of decree‑‑‑Application for issuance of writ of attachment‑‑‑Writ of attachment issued by Court remained unexecuted‑‑‑Decree‑holder pointed out that judgment‑debtors who was deliberately avoiding execution of writ of attachment, had placed attached property, which were three buses, at disposal of Authority concerned to be auctioned‑‑‑Decree‑holder sought order of restraint prohibiting judgment‑debtor from transferring or charging or creating third part), interest to respect of attached buses‑‑‑Order of attachment already issued involved restraint against transfer of attached property by virtue of principle contained in S.64, C.P.C. and further order of restraint was not required to be passed‑‑‑Court, however, on oral motion of decree‑holder issued writ of attachment in terms of O.XXI, R.52, C. P. C. directing‑ the Incharge Motor Registration, Excise and Taxation Authority not to effect any mutation or permit change of ownership in respect of attached three buses; until further orders of the Court.

Nasir Maqsood for Plaintiff.

2002 C L C 1275

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

SALAHUDDIN‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN and others‑‑‑‑Respondents

Constitutional Petition No.D‑548 of 2000, decided on 27th March, 2001.

(a) Vested right‑‑‑

‑‑‑‑ Concept.

The term "vested right" has not been defined by any statute.

It is an immediate fixed right of present or future enjoyment, and rights are vested in contradistinction to being expectant or contingent.

It must be a title to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another.

In Constitutional law, rights which have so completely and definitely accrued to or settled in a person that they are not subject to be defeated or cancelled by the act of any other private person, and which it is right and equitable that the Government should recognize and protect, as being lawful in themselves, and settled according to the then current rules of law, and of which the individual could not be deprived arbitrarily without injustice, or of which he could not justly be deprived otherwise than by the established methods of procedure and for the public welfare. Such interest as cannot be interfered with. by retrospective laws, interests which it is proper for State to recognize and protect. Immediate or fixed right to present or future enjoyment and one that does not depend on an event that is uncertain. A right complete and consummated, and of such character that it cannot be divested without the consent of the person to whom it belongs, and fixed or established, and no longer open to controversy.

Messrs Mardan Industries Ltd., Sakhakot, Malakand Agency and another v. Government of Pakistan and another PLD 1965 (W.P.) Pesh. 47 and Black's Law Dictionary quoted.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 30‑‑‑Date of determination of rate of import duty‑‑‑Rate of duty applicable to any imported goods shall be the rate of duty in force on the date on which a Bill of Entry is manifested‑‑‑ importer, therefore, acquires a vested right, when the Bill, of Entry is manifested.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑S. 18‑‑‑Finance Act (IV of 1999), S.18‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑S.R.O. 116(1)/2000, dated 7th March, 2000‑‑­Constitutional petition‑‑‑Rate of duty‑‑‑Determination of ‑‑‑Exemption‑‑­Provision of S.18, Finance Act, 1999 having overriding effect by virtue of its non‑obstante clause the rate of duty prescribed thereunder shall be applicable to the imports between the first July, 1999 and 30th June, 2000, in respect of the goods specified in the Tables I to IV in S.18(1) of the Finance Act, 1999 until and unless any conditions, limitations or restrictions, for carrying out the purposes of said S.18 are specified or any amendment is made in the Tables I to IV by the Federal Government‑‑‑Dump Truck was imported on 4‑3‑2000, and was manifested on 8‑3‑2000 and Notification S.R.O.116(I)/2000 omitting the Column No. 1, Serials Nos. 1, 2, 3 and 4 in Table III of S.18, Finance Act, 1999, was issued on 7‑3‑2000, but was published in the official Gazette on 10‑3‑2000‑‑‑Notification S.R.O.116(I)/2000 shall be effective from the date it was published in the official Gazette and not from the date of issuance of the notification‑‑‑Principles‑‑‑Vested right was created in favour of the importer on 8‑3‑2000 with the manifestation of Bill of Entry‑‑‑Notification No.S.R.O.116(I)/2000, issued in exercise of the powers conferred by S.18(7)(b) of the Finance Act, 1999 became effective from 10‑3‑2000 and Customs Duty on Dump Truck was determined from 8‑3‑2000 when the Bill of Entry was manifested under S.30, Customs Act, 1969 and therefore, S.R.O. No.116(I)/2000, dated 10‑3‑2000 would not be applicable to the import of Dump Truck which was a concluded past and closed, chapter prior to the S.R.O. became effective‑‑‑Importer, in circumstances, was entitled for concession and exemption contained in S.18, Finance Act, 1999 in import of Dump Truck‑‑‑Action and acts of Department detaining the said Truck for the purpose of determining the customs duty and sales tax were illegal, unlawful, without jurisdiction and mala fide, having no legal effect.

Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; Messrs Tharparkar Sugar Mills Ltd. v. Federation of Pakistan 1996 MLD 1221; Messrs Polyron Ltd. v. Government of Pakistan and others PLD 1999 Kar. 238; Messrs Flying Kraft Paper Mills (Pvt.) Ltd. v. Central Board of Revenue and others 2000 SCMR 945: Collector of Customs and others v. Ravi Spinning Ltd. and others 1999 SCMR 412; Messrs Mardan Industries Ltd., Sakhakot, Malakand Agency and another v. Government of Pakistan and another PLD 1965 (W.P.) Pesh. 47 and Black's Law Dictionary ref.

(d) Legislation‑‑‑

Subordinate legislation by delegated Authority by issuance of notification‑‑‑Categories of provisions illustrated.

(e) Interpretation of statutes---

‑‑‑Purport of legislation‑‑‑Method to discern and ascertain the purport of legislation by comparing different provisions of the same statute or analogous provisions contained in different statutes is one of the recognized methods under the principles of interpretation of statutes‑‑‑If on comparison of different provisions contained in a statute it is found that different expressions have been used then it shall be inferred that the provisions of law convey different intentions.

Ch. Abdul Rasheed for Petitioner.

Raja M. Iqbal for Respondents

Date of hearing: 24th January, 2001.

2002 C L C 1295

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

ABDULLAH and others‑‑‑Applicants

versus

FATEH MUHAMMAD and others‑‑‑Respondents

Revision Application No.77 of 1988, decided on 8th February, 2002.

(a) Precedent‑‑

‑‑‑‑Ratio of a judgment should be discerned from the law, facts and circumstances of each case and be applied with all care and caution otherwise there is likelihood of misapplication of ratio of judgment and causing of injustice to the parties.

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

‑‑‑‑O. XLI, R.27‑‑‑Production. of certified copy of document at appellate stage‑‑‑Simple copy of which had already been admitted by Trial Court‑‑­Recording of evidence by Appellate Court not necessary‑‑‑Trial Court as well as the counsel for the defendants were not vigilant at the time of production of document which was not a certified copy, therefore, a simple copy of the document was allowed to be produced in evidence‑‑­Trial Court was obliged to see at the time of production of the document as to whether it was admissible in evidence or not and at the same time it was the duty of Advocate for the defendants to raise objection to the production of document in evidence‑‑‑Nobody should suffer on account of lapse on the part of Court‑‑‑Appellate Court, in circumstances, was fully justified in allowing the production of certified copy of the power of attorney for the substantial cause of justice and there was no necessity of recording the evidence merely for the production of certified copy of the power of attorney because the copy thereof was already produced in evidence and was exhibited without any objection from the Advocate for the defendants‑‑‑Contention that judgment of the Appellate Court suffered from illegality was repelled by High Court.

National Bank of Pakistan v. Mst. Hajra Bai PLD 1985 Kar. 431; Fida Muhammad v. Pir Muhammad PLD 1985 SC 341 and Jannat Bibi v. Sikandar Ali PLD 1990 SC 642 distinguished.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of fact by two Courts below‑‑‑When findings of fact required reappraisal of evidence, revisional Court should not reappraise the evidence and come to any other conclusion, even if, another view could be taken by the revisional Court.

Jhamat Jethanand for Applicants.

Syed Masood Ali for Respondents.

Date of hearing: 8th February, 2002.

2002 C L C 1307

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

LOUNG and others‑‑‑Applicants

versus

ALLAH DITTO and others‑‑‑Respondents

Revision Application No. 185 of 1986, decided on 8th February, 2002.

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

‑‑‑‑O. VIII, R.2‑‑‑Facts to be specifically pleaded‑‑‑Defendant must raise by his pleading all matters, which show the suit not to be maintainable or that the transaction was either void or voidable on any point of law and all such grounds of defence, if not raised, would be likely to take the opposite party by surprise or would raise issue of facts, not arising out of the plaint‑‑‑Plea of defendant, in the present case, that plaintiff "B" was married to "K" or she had relations with said "K" of the nature, which could give birth to a child plaintiff "L" out of such relationship, was not the fact arising out of the plaint and such plea was likely to take the plaintiffs to surprise‑‑‑Defendants, in circumstances, were duty bound to raise specific plea in the written statement‑‑‑Raising of new point by defendants‑‑‑Procedure‑‑‑Principles.

The defendant must raise by his pleading all matters, which show the suit not to be maintainable or that the transaction is either void or voidable on any point of law and all such ground of defence, if not raised, would be likely to take the opposite‑party by surprise or would raise issues of facts, not arising out of the plaint. Admittedly, the plea that plaintiff "B" was married to "K" or she had relations with said "K" of the nature, which could give birth to plaintiff "L" out of such relationship was not the fact arising out of the plaint and such plea was likely to take the plaintiffs by surprise and thus, the defendants were duty bound to raise specific plea in the written statement which they failed to raise.

Order VIII, rule 2 makes it obligatory on the defendant to particularize in his evidence or points, either of fact or of law, which he desires to take up, so that, the plaintiff should not be taken by surprise and should have an opportunity to establish or revert to any factual or legal question by adducing necessary evidence. If the new point is to be allowed to be raised, the Court should require the‑defendant to amend his written statement, frame an issue on the point and allow the parties to adduce further evidence, if any, in support of respective cases on that point. Where that is not done, the trial Court cannot take into consideration a new point raised by the defendant and his decision to that point, therefore, cannot be allowed to stand.

1991 CLC 324; PLD 1969 Pesh. 241 and AIR 1963 Pat. 400 ref.

(b) Islamic Law‑‑‑

‑‑‑‑Marriage‑‑‑Validity‑‑‑Presumption regarding Muslim marriage in absence of direct proof can be raised and acted upon with prolonged and continuous cohabitation as husband and wife‑‑‑Factors to be kept in view by the Court pointed out.

Mulla's Mohammadan Law, para. 268 ref.

(c) Islamic Law‑‑‑

‑‑‑‑Marriage‑‑‑Validity‑‑‑Defendants specifically did not deny the relationship of husband and wife in their written statement but took plea that lady was not legally wedded wife of the man‑‑‑Held, in view of such a plea, it was incumbent on the defendant to establish that under what circumstances the lady was living with the man, if she was not legally wedded wife of the man‑‑‑Plaintiff, no doubt was also to produce the lady in evidence, on the point of marriage between her and the man but that would not have the effect of brushing aside the evidence brought on record.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Findings of two Courts below suffered from material irregularities and misreading of evidence, established principles of law had been totally ignored by the said Courts with the result that they had come to the erroneous conclusion that "K" was not wife of "D" and "L" was not son of "D" and that Mst. "H" mother of plaintiff "R" died during the lifetime of her father with the result that the plaintiff "R" was deprived of his right of inheritance‑‑‑Effect‑‑‑Such findings were open to revision by High Court and were consequently set aside and the suit was decreed as prayed.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Mst. Najabat and others v. Mst. Sawan Bibi and others PLD 1982 SC 187; Haji and others v. Khuda Yar PLD 1987 SC 453; Mst. Noorun Nisa v. Abdul Salam and others PLD 1982 Pesh. 42; Abdul Majeed Khan v. Anwari Begum PLD 1989 SC 362; Nazir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Muhammad Atayat Khan v. Rahmat Khatoon 2001 MLD 1083; Muhammad Subhan v. Muhammad Qadam Khan 2001 MLD 1716; Sardar Muhammad Mushtaq v. Sardar Muhammad Pervez Khan 2001 MLD 1725; Abdul Qayyum v. Mushk‑e?-Alam 2001 SCMR 798; PLD 1980 Pesh. 40; PLD 1978 Lah. 994; PLD 1980 BJ 29; PLD 1989 Lah. 484; PLD 1964 Kar. 549; PLD 1974 SC 22; 1980 SCMR 760; 1991 CLC 324; PLD 1969 Pesh. 241; AIR 1963 Pat. 400 and Mulla's Mohammadan Law, para.268 ref.

Jhamat Jethanand for Applicants.

Allah Bachayo Soomro for Respondents

Date of hearing: 25th January, 2002.

2002 C L C 1331

[Karachi]

Before Shabbir Ahmed and Sarmad Jalal Usmani, JJ

SUJAWAL KHAN through Legal Heirs‑‑‑Petitioners

versus

DEPUTY COMMISSIONER AND ADDITIONAL SETTLEMENT COMMISSIONER HYDERABAD, and 5 others‑‑‑Respondents

Constitutional Petition No.S‑97 of 1985, decided on 29th November 2001.

Displaced Pens (Land Settlement) Act (XLVII of 1958)‑‑‑

‑S. 5‑‑‑Scrutiny of Claims (Evacuee Property) Regulation C.M.L.A.'s] Nos.84 & 89 [as amended by] C.M.L.A:'s Regln. No.91]­‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Evacuee land‑‑‑Surrender of excess land after its allotment‑‑‑Return of such land to compensation pool‑‑‑Scope‑‑‑Evacuee claimant after promulgation of Martial Law Regulation No.84 surrendered excess land allotted to her in year 1970 in satisfaction of her claim, but she purchased such surrendered land in exercise of her option‑‑ ‑Evacuee claimant challenged duplicate allotment of surrendered land in favour of respondent‑‑‑Assistant Rehabilitation Mukhtiarkar/Assistant Settlement Commissioner allowed her application, but Deputy Rehabilitation Commissioner rejected the same‑‑‑Such order was challenged in 'Constitutional petition filed by son of evacuee claimant, which was dismissed for non‑prosecution on 27‑1‑1997, while present Constitutional petition filed by sitting tenant/Hari of evacuee claimant was pending adjudication ‑‑‑Validity‑‑‑Paras. 8 & 9 of Martial Law Regulation 89 provided that once land was allotted against the entitlement of a claimant and after verification thereof, any excess land would not revert to Compensation Pool, but the same had to ‑be disposed of in accordance with the scheme framed under Martial Law Regulations 89/91‑‑‑First option to purchase excess land under the scheme had to be given to the person surrendering the same, and after his failure to exercise such option within prescribed period, the same had to be offered to sitting tenant, and if no such option was exercised, then the same would vest in Provincial Government for its disposal in accordance with the scheme specifically framed for the purpose‑‑‑Land could be allotted, if the same was available for allotment or where claimant had failed to file M.R.‑1 in respect of land allotted against his entitlement‑‑­Evacuee claimant in the present case had filed M.R.‑1 and her entitlement was reflected in M.R.‑V, whereby she retained certain land and surrendered the excess land‑‑‑Neither such surrendered land could be reverted to Compensation Pool nor subjected to allotment against any claim/entitlement‑‑‑Assertions made in Constitutional petition by Hari/petitioner claiming to be sitting tenant since 1960 had not been controverted by respondent by filing counter‑affidavit or comments denying the said facts‑‑‑Since issue of re‑purchase after surrender of land stood closed by dismissal of Constitutional petition filed by son of evacuee claimant, right of Hari/petitioner emanated from the ashes of entitlement of evacuee claimant and on termination of her right on 27‑1‑1997, when Constitutional petition filed by Hari/petitioner was already pending for disposal‑‑‑High Court accepted the Constitutional petition and set aside the impugned order in circumstances.

Jhamat Jethanand for Petitioner.

Kamaluddin for Respondents Nos.3 to 5.

Dates of hearing: 12th, 25th, 29th October and 1st November, 2001.

2002 C L C 1347

[Karachi]

Before Syed Zawwar Hussain Jafri, J

GHULAM MUHAMMAD AND OTHERS---Appellants

Versus

PROVINCE OF SINDH through

Secretary, Home Department, Government of Sindh and

others‑‑‑Respondents

First Civil Appeals Nos. 15 and 16 of 1991, heard on 15th October, 2000.

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

‑‑‑‑S. 12‑‑‑Agreement to sell‑‑‑Onus to prove‑‑‑Mesne profits and damages, grant of‑‑‑Sale agreement was made on the date with defendant when he was in police custody in murder charge‑‑‑Plaintiffs who were in possession of the suit property failed to prove their version about the sale agreement‑‑‑Validity‑‑‑Burden of proving the issues was upon the plaintiff but no tangible evidence was produced to prove that the sale agreement was executed for the said land‑‑‑Where the plaintiffs themselves had admitted to be in possession of the property and availed the benefits of sugarcane crop and cultivating the other crops in the suit land the Trial Court had rightly awarded the damages and mesne profits‑‑‑Trial Court had rightly disbelieved the evidence adduced by the plaintiffs and found the same to be unreliable‑‑‑Findings of the Trial Court did not suffer from any inherent defect or misreading of evidence‑‑‑High Court declined to interfere with the findings of the Trial Court‑‑‑Appeal was dismissed in circumstances.

PLD 1968 Lah. 1076; PLD 1968 Pesh. 70; PLD 1972 SC 59; PLD 1960 Dacca 1333; PLJ 1975 Kar. 215; PLD 1962 Pesh. 105; PLD 1961 Kar. 486; PLD 1980 Kar. 41; PLD 1989 SC 503; PLD 1989 Lah. 399; 1988 CLC 2388; 2000 SCMR 204; 1987 SCMR 624; 1987 MLD 3016 and PLD 1986 Lah. 399 ref.

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

‑‑‑‑O. XLI, R. 25, O. XIV, Rr.1 & 5‑‑‑Additional issues framing of‑‑‑New plea‑‑‑Contention of the appellant was that no additional issues were framed by the Trial Court in respect of status of the land ‑‑‑Validity‑‑­Such plea had not been taken before the Trial Court as the same was ground for permitting the additional issue related to the Court of original jurisdiction‑‑‑High Court declined to consider such plea to remand the case.

Habibullah Shaikh for Appellants.

A.M. Mobeen Khan for Respondents.

Date of hearing: 15th October, 2000.

2002 C L C 1367

[Karachi]

Before Wahid Bux Brohi, J

MIANDAD‑‑‑Appellant

Versus

ABDUL QADEER and others‑‑‑Respondents

First Appeal No. 18 of 1998, decided on 2nd March, 2002.

Specific Relief Act (I of 1877)----

‑‑‑‑Ss. 12, 15, 16 & 22‑‑‑Agreement by a co‑owner to sell entire undivided land without having authority from other co‑owners thereof‑‑­Whether not enforceable‑‑‑One of the co‑owners executed agreement to sell pertaining to joint property without any authority from the other co­-owners who denied execution of such agreement‑‑‑Plaintiff instituted the suit for specific performance of the agreement‑‑‑Trial Court having found the agreement not enforceable dismissed the suit‑‑‑Validity‑‑‑Plaintiff failed to establish if the agreement for sale of land by one co‑sharer in absence of the other co‑sharers could validly make out a case for transfer of the entire undivided land to the plaintiff‑Where there was no such transaction or agreement for sale between the plaintiff and the other co-­sharer and the agreement was not a genuine document, there was no question of specific performance of such contract‑‑‑Suit had rightly been dismissed by the Trial Court as its findings were not open to exception.

Abdul v. Suhrab PLD 1997 Kar. 985; Dil Murad v. Akbar Shah 1986 SCMR 306; Muhammad Subhan v. Mst. Bilquis Begum PLD 1994 Kar. 106 and Siraj Din v. Mst. Jamilan PLD 1997 Lah. 633 ref.

Ahmed Ali Shaikh for Appellant.

Muhammad Munawar Khan for Respondents Nos. l to 4.

Date of hearing: 7th December, 2001.

2002 C L C 1378

[Karachi]

Before Anwar Zaheer Jamali, J

IMTIAZ ALI ‑‑‑Appellant

Versus

Mst. NASEEBAN‑‑‑Respondent

Guardian Wards Act Appeal No.S‑1, Miscellaneous Application Nos.7, 8 and 9 of 2002, decided on 23rd January, 2002.

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

‑‑‑‑S. 14(b)‑‑‑Appeal‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑‑Appeal against judgment of Family Court lies before District Court except in case where the Family Court is presided over by a District Judge or Additional District Judge‑‑‑Appeal preferred before High Court against judgment of Family Judge was not maintainable in circumstances.

Muhammad Saleem G.N. Jesser for Appellant.

2002 C L C 1382

[Karachi]

Before Zia Pervez, J

FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN‑‑‑Applicant

Versus

YOUSAF A. HAROON and another‑‑‑Respondents

Review Applications Nos.222 along-with 166 of 1996, decided on 6th December, 2001.

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

‑‑‑‑S. 9‑‑‑Pecuniary jurisdiction of Civil Court‑‑‑Subject‑matter of the suit was beyond Rs.50,000 which was adjudicated by Civil Court‑‑‑Suit was decreed in the favour of the plaintiff and appeal was dismissed by the Lower Appellate Court‑‑‑Defendant raised the plea of lack of jurisdiction on behalf of the Courts below‑_‑Validity‑‑‑From the evidence available on record it was apparent that the subject‑matter of the suit pertained to assets worth of several lacs of Rupees much beyond the jurisdiction of the Trial Court which was only up to Rs.50,000‑‑­Subject‑matter of the suit was beyond the pecuniary jurisdiction of the Trial Court and the Trial Court proceeded without jurisdiction‑‑­Judgment and decree passed by the Lower Appellate Court was set aside with costs.

Lord Porter, Sir Madhavan Nair and Sir John Beaumont v: The Hindu Religious Endowments Board, Madras AIR 1949 PC 156; S. Zafar Ahmed v. Abdul Khaliq PLD 1964 (W.P.) Kar. 149; Farid Khan v. Atiqur Rehman and another PLD 1983 Kar. 510; Tila Muhammad v. Maqsood and 3 others PLJ 1984 Pesh. 28; Abdul Shakoor v. Hafiz Muhammad Rafique NLR 1995 UC 87; Shafi,Muhammad and others v. Mst. Rasheeda Bibi through Attorney Qameruddin 1997 MLD 385; Waheed Gul v. Mst. Saida Jan 1998 MLD 3; Province of Punjab through Collector, Mianwali v. Muhammad Hassan and another 1999 MLD 1084; Riasat Ali and 3 others v. Ch. Muhammad Mushtaq Ahmed Sindhu and 2 others 1999 CLC 195 and Fateh Muhammad v. Barkat Ali 1999 YLR 1788 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Decision should be according to law and the power conferred was not a power to make decision wrongly.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

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

‑‑‑‑O. VII, R. 1(i)‑‑‑Suits Valuation Act (VII of 1887), S.11‑‑‑West Pakistan Civil Courts Ordinance (II of 1962), S.9‑‑‑Value of suit for purpose of court‑fee‑‑‑Pecuniary jurisdiction of Court ‑‑‑Determination‑‑­Value of suit for purpose of court‑fee does not bring a suit within the jurisdiction of the Court where the subject‑matter of the suit exceeds its pecuniary limits of jurisdiction.

Acharya Davendra Prasadji and 2 others v. Tirthdas and 10 others PLD 1972 Kar. 251; Imamuddin and another v. Abdul Ghani PLD 1959 Kar. 802; S. Zafar Ahmed v. Abdul Khalique PLD 1964 Kar. 386 and Muhammad Sadiq v. Haji Ahmed & Company and Badrul Islam v. Qamarul Islam and 4 others PLD 1971 Kar. 682 ref.

Mirza Hanif Baig for Applicant.

Kamaluddin Ahmed for Respondent.

Date of hearing: 9th February, 2001

2002 C L C 1419

[Karachi]

Before Syed Ali Aslam Jafri, J

ABDULLAH and others‑‑‑Applicants

Versus

MUHAMMAD HAROON and others‑‑‑Respondents

Revision Application No. 255 of 2000, decided on 11th March, 2002

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

‑‑‑‑S. 164‑‑‑Order passed by member, Board of Revenue in exercise of his revisional powers and jurisdiction under S.164, West Pakistan Land Revenue Act; 1967 could not be deemed to be a void order in the absence of material to justify the same.

Muhammad Younus Khan and others v. Government of N.W.F.P. 1993 SCMR 618; Muhammad Riaz Munna v. The State PLD 1982 Kar. 172 and Mst. Fatima Bibi v. Mst. Raheem Bibi 1999 MLD 1026 ref.

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

‑‑‑‑S. 115(1)‑‑‑Object of S.115(1), C.P.C. was to avoid delay in disposal of revisional proceedings ‑‑‑Revision‑‑‑Maintainability‑‑‑Principles‑‑­Copies of the pleadings and the evidence produced by the parties before the Trial Court had been filed along-with revision petition which were very much available on record‑‑‑Failure to file other documents with the revision was not always fatal to revision resulting in its dismissal‑‑­Procedural technicalities not to be allowed to come in the way of administration of justice.

Muhammad Younus Khan and others v. Government of N.W.F.P. 1993 SCMR 618; Muhammad Riaz Munna v. The State PLD 1982 Kar. 172; Mst. Fatima Bibi v. Mst. Raheem Bibi 1999 MLD 1026; .Muhammad Bashir and others v. Muhammad Hussain 1994 CLC 1207; Riasat Ali v. Muhammad Jaffar Khan 1991 SCMR 496 and Muhammad Hanif v. Muhammad and others PLD 1990 SC 859 ref.

(c) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 14‑‑‑Applicability and scope of S.14, Limitation Act, 1908‑‑­Expression "act or order of an officer of the Government" within meaning of S.14, Limitation Act, 1908 must necessarily refer to the executive act or administrative act and not to a "judicial order".

Said Khan v. Mst. Fauzia Parveen 1984 CLC 494 and Jagun Nath Hazarvimal v. State AIR 1963 Born. 83 ref.

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

‑‑‑‑Chap. XIII [Ss.161 to 167]‑‑‑West Pakistan Board of Revenue Act (XI of 1957), Ss.7 & 8‑‑‑Limitation Act (IX of 1908), S.14‑‑‑Judicial order‑‑­Order passed by a Revenue Officer under Chap. XIII of West Pakistan Land Revenue Act, 1967, or under Ss.7 & 8 of the West Pakistan Board of Revenue Act, 1957 was to be deemed to be "judicial order" for all intents and purposes and could not be deemed to be an act or order of the officer of the Government" as referred to in Art. 14, Limitation Act, 1908.

(e) Words and phrases‑‑­‑‑‑‑‑

Judicial order" ‑‑‑Meanings.

The word "judicial order" is defined as "one which involves exercise of judicial discretion and affects a final result of, litigation".

Blacks Law Dictionary VIth Edn quoted.

C.P. No.270 of 2001 and Ghulam Mustafa's case Civil Petitions Nos.356‑K and 359‑K of 2001 ref.

(f) Words and phrases‑‑­--

‑‑‑‑‑‑ Judicial proceedings" ‑‑‑Meaning.

The words "judicial proceedings" are defined as "A proceeding wherein there are parties, who have opportunity to be heard, and wherein the Tribunal proceeds either to a determination of facts upon evidence of law upon proved or conceded facts".

Blacks Law Dictionary VIth Edn. quoted.

C.P. No.270 of 2001 and Ghulam Mustafa's case Civil Petitions Nos.356‑K and 359‑K of 2001 ref.

(g) Judicial forum‑‑­

‑‑‑‑ Requisites characterized.

There are four requisites for a forum to be characterized as judicial:‑‑

(i) Presentation of a case by a party;

(ii) Ascertaining facts by means of evidence;

(iii) Submission of legal arguments if dispute involve a question of law; and

(iv) Pronouncement of decision which disposes of the whole matter by finding of facts and application of law to facts as found.

C. P. No.270 of 2001; Ghulam Mustafa's case Civil Petitions Nos.356‑K and 356‑K of 2001 and Philips Electrical Industries of Pakistan v. Pakistan and others SBLR 2001 Kar. 760 ref.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑View of Appellate Court having not been based on correct appreciation of the law and facts involved in the suit was liable to be set aside‑‑‑Appellate Court, however, in the present case, had not recorded its finding on all the issues or the points for determination as framed by it, it was, thus not possible for the High Court, in the absence of the findings. on said issues to decide the suit as a whole completely at revisional stage, as such it was found necessary by the High Court to send back the case to the Appellate Court to decide the matter afresh on merits on all the issues (except the issue pertaining to limitation, which already stood decided by High Court that the suit was within time), after providing a reasonable opportunity of hearing to the parties.

(i) Civil Procedure Code (V or 1908)‑‑‑

‑‑‑‑S. 115(1)‑‑‑Failure to produce certified copies of documents along-with revision petition‑‑‑Effect‑‑‑Such production would be deemed to be impliedly dispensed with after admission of revision petition for hearing.

Qamar Muhammad Khan for Applicants.

Partab Rai for Respondents Nos.1 to 3.

Dates of hearing: 17th September, 2001 and 12th January, 2002.

2002 C L C 1430

[Karachi]

Before S. Ahmed Sarwana, J

CIVIL AVIATION AUTHORITY‑‑‑Plaintiff

Versus

Messrs AER RIANTA‑--‑Defendant

Suits Nos.548 of 1994 and 689 of 1995, and Civil Miscellaneous Applications Nos.5547 of 1994, 1824 and 5913 of 1999 and 9166 of 2002, decided on 4th March, 2002.

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

‑‑‑Ss. 114 & O.XLVII, R.1‑‑‑Licence and licensee‑‑‑Suit for specific performance and seeking injunction against licensee to perform its part of the contract under the terms of the Licence agreement‑‑‑Disposal of the application by the Court Review Conditions‑‑‑Provision of 5.114, C.P.C. grants a right of review subject to the conditions and limitations prescribed in O.XLVII, R.1, C.P.C.‑‑‑Party seeking review, in order to succeed, must prove to the Court, inter alia, that on account of some mistake or error apparent on the face of the record or for any other sufficient reason, the judgment or the order may be reviewed so that justice may be done‑‑‑Party must fulfil the conditions and limitations, stated in O.XLVII, R.1, C. P. C. ‑‑‑In the present case neither any error of law or fact had taken place in the order which was so manifest and clear that no Court would permit such an error to remain on record nor any important piece of evidence had been overlooked, order was also not based upon erroneous assumption of facts but was simply based upon the provisions of the agreement between the parties‑‑‑All the arguments advanced for review were nothing but a repetition of the arguments advanced in support of the application for stay of proceedings in the suit and referring the matter to Arbitration‑‑‑Applicant for review wanted the Court to look at the documents exchanged between the parties prior to the execution of the agreement and the changes had occurred‑‑‑Application for review under S.114, C.P.C. read with O.XLVII, RJ, C.P.C. was rejected‑‑‑Principles.

A simple reading of section 114, C.P.C. and Order XLVII, rule 1, C.P.C. shows that section 114, C.P.C. grants a right of review subject to the conditions and limitations prescribed in Order XLVII, rule 1. Therefore, in order to succeed, the party seeking a review must prove to the Court, inter alia, that on account of some mistake or error apparent on the face of the record or for any other sufficient reason, the judgment or the order may be reviewed so that justice may be done. He must fulfil the conditions and limitations stated in the above provision as interpreted by the superior Courts.

In order that an error may be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self‑evident and floating on the surface, and does not require any elaborate discussion or process of ratiocination.

Judgment can be reviewed if the Court had overlooked some important piece of evidence which was present on the record.

Review of such part of the judgment could be allowed which was based upon erroneous assumption of facts brought to the notice of the Court.

In the present case there was neither any error of law or fact in the order which was so manifest and clear that no Court would permit such an error to remain on record nor any important piece of evidence had been overlooked. The order was also not based upon erroneous assumption of facts. The order was simply based upon the provisions of the Licence Agreement between the parties and the fact that a dispute had arisen between them on the clause requiring to pay Licence Fee.

All the arguments advanced for review were nothing but a repetition of the arguments advanced in support of the application for stay of the proceedings in the suit and referring the matter to Arbitration. Applicant wanted the Court to look at the documents exchanged between the parties prior to the execution of the agreement and the changes that had occurred.

The main purpose of construction of terms of a written agreement was to find out the intention of the parties to the agreement By looking to the words used one had to construe the intention which had persuaded the parties to enter into the agreement.

In case of any ambiguity in a contract document, the Court in order to resolve it and to ascertain the real intention of the parties, could have resort to the correspondence preceding and/or subsequent to the execution of the contract document, conduct of the parties and the attending circumstances.

The intention of both the parties was very clear from the agreement and there was no ambiguity in the same. It was, therefore, not necessary to refer to the correspondence preceding and/or subsequent to the execution of the agreement. Court had taken reasonable care to safeguard the interest of both the parties.

Any order until it is reviewed continues to be in operation and does not entitle any party to violate the terms of the order unless specifically permitted to do so. The position is similar to that of filing of an appeal which does not stay the operation of the order or judgment appealed against unless specifically ordered by the Court.

Application for review under section 114 read with Order XLVII, rule 1, C.P.C. is rejected.

1995 SCMR 922; 1997 CLC 1332; PLD 1979 SC 741; AIR 1966 All. 516; Zulfikar Ali Bhutto v. The State PLD 1979 SC 741; Messrs M .Y. Malik & Co. v. Messrs Spendlour International 1995 SCMR 922; Maulana Abdul Quddus Bihari v. Member (Land Utilization), Board of Revenue, Sindh 1997 CLC 1332; Housing Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society 1992 SCMR 19 and Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431 ref.

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

‑‑‑‑S. 114, O. XLVII, R.1 & O.XLI, R.5‑‑‑Review‑‑‑Any order until it is reviewed continues to be in operation and does not entitle any party to violate the terms of the order unless specifically permitted to do so‑‑?Such position is similar to that filing an appeal which does not stay the operation of the order or judgment appealed against unless specific ordered by the Court.

(c) Interpretation of documents‑‑‑

‑‑‑‑ Ambiguity in a document‑‑‑Determination‑‑‑Intention of, parties‑‑?Court can resort to correspondence preceding and/or subsequent to execution of contract document, conduct of parties and attending circumstances.

(d) Interpretation of documents‑‑‑

‑‑‑‑ Intention of the parties‑‑‑Intention persuading the parties to enter into an agreement can be gathered from the words used therein.

Faisal Arab and Zahid Ebrahim for Plaintiff.

Sajid Zahid for Defendant.

Dates of hearing: 18th February and 4th March, 2002.

2002 C L C 1454

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

Syed ASLAM SHAH and others‑‑‑Applicants

Versus

DIVISIONAL FOREST OFFICER, SANGHAR

AT KHIPRO and 2 others‑‑‑Respondents

Revision Application No.192 of 1984 and Civil Miscellaneous Applications Nos.210, 212, 213 and 214 of 2000, decided on 24th May, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115, O.XXII, R.10 & O. IX, R.9‑‑‑Transfer of Property Act (XI of 1882), S.54‑‑‑Registration Act (XVI of 1908), S.17‑‑‑Limitation Act (IX of 1908), Art.181‑‑‑Sindh Land Revenue Code, 1879, S.74‑‑-Revision, dismissal or abatement of‑‑‑Restoration‑‑‑Limitation‑‑‑Relinquishment of occupancy by an occupant of the land‑‑‑"Occupant" as per S.2(16) of the Sindh Land Revenue Code, 1879, means a holder in actual possession of unalienated land other than a tenant provided that where the holder is a tenant, the landlord or superior landlords as the case may be, shall be deemed to be the occupants‑‑‑Alienation under S.2(20) of the Code means transfer in so far as the rights of the Government to payment of the rent or land revenue are concerned wholly or partially, to the ownership of. any person‑‑‑Ownership, in case of an unalienated land is not transferred while in the present case the land was under the ownership of the revision petitioner where petition had been dismissed and was alleged to have sold the land to the father of applicants‑‑‑Petitioner, moving the Court under O.XXII, R.10, C.P.C. & O.IX, R.9, C.P.C. for restoration of the revision which had been dismissed, and claiming title of the said land through their father who was stated to have acquired interest in the land in question through a simple statement to have been recorded by the Mukhtiarkar‑‑‑Validity‑‑‑Provisions contained in O.XXII, R.10, C.P.C. could be invoked if there was a case of assignments creation or devolution of any interest during the pendency of a suit‑‑‑Suit could be allowed to be continued by or against the person upon whom such interest had come or devolved‑‑‑Mere entry in the record of rights would not confer any title‑‑‑Title in the movable property agricultural land for the value above Rs.100 could be transferred by way of registered deed only‑­‑Provision contained in S.54, Transfer of Property Act, 1882 and S.17, Registration Act, 1908 were very clear in that regard and transfer of title in agricultural land was no exception‑‑‑No interest had been created in favour of the applicants during the pendency of the suit/appeal/revision and therefore, applicants could not avail the provisions contained in O.XXII, R.10, C.P.C.‑‑‑No interest in the land having been created in favour of the father of the applicants and consequently in favour of the applicants who were claiming the title in the land through their father, therefore, they had no right to submit. an application under OAX, R.9, C.P.C. or under any other provision for restoration of the revision petition which was dismissed on merits and abated as the revision petitioner had died leaving no legal representative and his right to pursue the proceedings had not survived‑‑‑Application for restoration of revision petition was barred by time and S.5 of the Limitation Act, 1908 was not applicable to the revision.

Motibhai Jijibhai and another v. Desaibhai Gokalbhai and another 1916 ILR 170 distinguished.

Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411; Rashid Ahmed v. Mst. Jiwan and 5 others 1997 SCMR 171; Allah Dino v. Muhammad Shah 2001 SCMR 286 and Usman Khan and another v. Miraj Din .and another PLJ 1978 Lah. 177 ref.

Jhamat Jethanand for Applicants.

Riazuddin Siddiqui for A.A.‑G. for the State.

Date of hearing: 10th May, 2002.

2002 C L C 1464

[Karachi]

Before Shabbir Ahmed, J

NAZAZ ALI (Nizar Ali)‑‑‑Plaintiff

Versus

KARACHI BUILDING CONTROL AUTHORITY

through Director‑General/Controller of Buildings, Civic Centre, University Road, Karachi

and 2 others‑‑‑‑Defendants

Suit No.508 of 2000, decided on 10th May, 2002

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

‑‑‑‑S. 42‑‑‑Declaration, both for breach of proprietary rights or legal character or status could be sought‑‑‑Plaintiff who was admittedly a co­-owner in the amalgamated plot, denial of his right in respect of the property would fall under the provision of S.42, Specific Relief Act, 1877 and suit under S.42 was not barred.

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

‑‑‑‑S. 4(3)‑‑‑Specific Relief Act (I of 1877), S.56(d)‑‑‑Jurisdiction, grant of‑‑‑Karachi Building Control Authority being a corporate body arid an independent juristic person with right to sue and to be sued, plea that injunction could not be granted against the said Authority was untenable.

(c) Karachi Building and Town Planning Regulation‑‑‑

‑‑‑‑ Regln. 26 & Sched. "D", Part II‑‑‑Sindh Buildings Control Ordinance (V of 1979), Preamble‑‑‑Amalgamation of plot‑‑‑Plots in question did not fall in any of the Karachi Development Authority's Schemes but were located in the Scheme controlled by the Federal Government which had granted land to the Housing Society which after framing the Scheme had leased the plots to different persons‑‑‑Lessor being the Competent Authority for amalgamation of the plots, Karachi Building Control Authority had no such power under Sindh Buildings Control Ordinance, 1979 and Regn.26 and Sched. "D" of Part II of the Karachi Building and Town Planning Regulation could not be forced by Karachi Building Control Authority under Sindh Buildings Control Ordinance, 1979, being ultra vires of the Ordinance Amalgamation of the plots and its commercialization were legal and any action/order/ decision/direction taken/passed or given by the Karachi Building Control Authority adversely affecting the amalgamation/its commercialization was unwarranted unjust and of no legal effect and "No‑objection Certificates" issued for such amalgamation/ commercialization in substance were fully operative and approval of building plan could not be withheld by the Karachi Building Control Authority.

Muhammad Rashid Bhatti v. K.D.A. PLD 1986 Kar. 130; Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others PLD 1993 SC 210; Messrs Neelam Textile Mills Ltd. v. State Bank of Pakistan and 2 others PLD 1999 Kar. 433; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Ardeshir' Cowasjee and 10 others v. Karachi Building Control Authority (K.M.C.) and 4 others 1999 SCMR 2883; Messes Excell Builders and others v. Ardeshir Cowasjee and others 1999 SCMR 2089; Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134; Mst. Nawab Bibi v. Mst. Rafiq Bano PLD 1971 SC 481; Maulana Nur­ul‑Haq v. Ibrahim Khalil 2000 SCMR 1305; Major Shujat Ali v. Mst. Surriya Begum PLD 1978 SC (AJ&K) 118; Syed Ali Asghar and 3 others v.. Creators Builders and 3 others 2001 SCMR 279; Ardeshir Cowasjee v. Government of Sindh 1998 MLD 1219; Abdul Razzak v. Karachi Building Control Authority PLD 1994 SC 512; Mehmooda Begum v. D.M. Sialkot PLD 1991 Lah. 230: Chairman Selection Committee/ Principal, King Edward Medical college v. Wasif Zamir Ahmed 1997 SCMR 15; Manzoor Hussain and 3 others v. Muhammad Siddique 2000 CLC 623; Black's Law Dictionary 5th Edn.; Warton's Law Lexicon 14th Edn.; Black's Law Dictionary, (sixth Edn.) and The Engineer in Chief Branch v. Jalaluddin PLD 1992 SC 207 ref.

(d) Karachi Building and Town Planning Regulation ‑‑‑

‑‑‑‑Sched. "D", Part 11, Para. 2‑‑‑Area restriction‑‑‑Consequence of failure to comply with Para.2, Sched. D; Part 11 of the Regulations regarding area restriction, being a directory provision, its non­-compliance in the process of issuance of No‑Objection Certificate would not make the same ineffective, illegal or void.

Maulana Nur‑ul‑Haq v. Ibrahim Khalil 2000 SCMR 130 Niaz Muhammad Khan v. Mian Afzal Raqeeb PLD 1974 SC 134; Major Shujat Ali v. Mst. Surriya Begum PLD 1978 SC (AJ&K) 118 and Mst. Nawab Bibi v. Mst. Rafiq Bano PLD 1971 SC 481 ref.

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

‑‑‑S. 6(3)‑‑‑Scope of S.6(3) of the Ordinance‑‑‑Provision of S.6(3) of the Sindh Building Control Ordinance, 1979 pertains to power of the Authority under the Ordinance to permit conversion of the building in terms of S.6(3) for the use or purpose other than for which its plan was approved‑‑‑Provision of ‑S.6(3) thus, cannot be stretched any further to include land/plot in view of the definition of "building" as given in S.3(I)(d) of the Ordinance.

Syed Ali Asghar and 3 others v. Creators Builders and 3 others 2001 SCMR 279; Ardeshir Cowasjee v. Government of Sindh 1998 MLD 1219; Excell Builders v. Ardeshir Cowasjee 1999 SCMR 2098 and Abdul Razzak v. Karachi Building Control Authority PLD 1994 SC 512 ref.

(f) Judgment per incurieam‑‑‑

‑‑‑‑Judgment which has been rendered without considering the relevant provisions of law or the legal decisions on the point would b a judgment per incuriam.

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

‑‑‑‑S. 21‑‑‑Locus poenitentiae‑‑‑Principle of‑‑‑Applicability‑‑‑Principles‑­‑Conversion of plots, in the present case, had been granted and acted upon and the plaintiff had claimed to have invested huge amount and construction on the plots was not disputed, as such decisive steps had been taken and valuable rights had been created‑‑‑Principle of locus poenitentiae would not be available to the Authority for recalling of the "no objection certificate" in the year 2000 which was issued in the year 1996.

H. A. Rehmani for Plaintiff.

Raja Sikandar Khan Yasir for Defendants.

Dates of hearing: 10th, 16th and 24th April, 2002.

2002 C L C 1495

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

DAWOOD SHAH‑‑‑Applicant

Versus

FAQIR MUHAMMAD and others‑‑‑Respondents

Revision Applications Nos. 157 and 158 of 1996, decided on 19th April, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Specific Relief Act (I of 1877), Ss.8 & 9‑‑‑Suit for declaration of possessory title‑‑‑Revision‑‑‑Observations made and the findings given by the Appellate Court were so perverse that it was totally shocking to the judicial conscience‑‑‑Trial Court had considered the entire material on record and had rightly found that the Municipal Corporation to whom the subject plots belonged had accepted the right of plaintiff/applicant over the suit plots and had shown the plaintiff/applicant as owner in its record‑‑‑Appellate Court, however, ignored overwhelming evidence on record and gave a finding which was not sustainable in law at all‑‑‑Grave injustice had been done by the Appellate Court‑‑‑High Court observed that the case was a fit one in which the High Court should interfere in exercise of its revisional jurisdiction to undo the miscarriage of justice and obviate the same‑‑­Judgment and decree by the Appellate Court was set aside and that of Trial Court restored.

Abdul Qadir v. Haji Ghulam Qadir 1996 CLC 1216: Muhammad v. Mst. Banuk Naz Khatoon 1989 CLC 1819 and Abdul Jabbar v. Muhammad Latif 1986 CLC 603 ref.

K. B. Bhutto for Applicant (in Revisions Applications Nos.157 and 158 of 1996).

S. M. Afzal for Respondent No (in Revisions Applications Nos. 157 and 158 of 1996).

Hidayatullah Ghulam Ali for Respondent No.2 (in Revision Application No. 157 of 1996).

Date of hearing: 18th February, 2002

2002 C L C 1502

[Karachi]

Before Wahid Bux Brohi, J

Mst. BUSHRA FAROOQ‑‑‑Plaintiff

Versus

Ms. SHABANA RAFIQUE‑‑‑Defendant

Suit No.42 of 2001, decided on 4th April, 2002.

(a) Benami transaction‑‑‑

‑‑‑‑ Determining factors to be borne in mind while assessing the nature of a transaction to be Benami or otherwise‑‑‑In case of movable properties and particularly in case of securities, bonds, certificates, while looking for the general principles governing Benami transactions peculiar features, related to purchase, transfer and disposition of such properties, shall bear dominating effect.

The following factors are to be borne in mind while assessing the .nature of a transaction to be Benami or otherwise: ‑‑

(i) The person asserting that a transaction is Benami shall bear the burden of proving the same;

(ii) In case purchase money is added or provided by person other than the person in whose favour the property is transferred or held, the purchase be assumed to be for the benefit of the person who supplied the purchase money unless the contrary is established;

(iii) The intention of the person who supplied the purchase money bears prime importance in determining the true character of the transaction.

(iv). In ascertaining the intention of such person the attending circumstances, including relationship between the parties, the motive inviting their action, in getting the transaction materialized ,and their subsequent conduct shall have adequate bearing;

(v) Possession of original title deeds in circumstances may also be added to the determining factors.

(vi) In case these principles are to be applied to securities, certificates/bonds etc. arising out of certain financial schemes the law/ rules governing the same and the spirit with which such schemes are floated shall have paramount consideration.

In case of movable properties and particularly in case of securities, bonds, certificates, while looking for the general principles governing Benami transaction peculiar features, related to purchase, transfer and disposition of such properties shall bear dominating effect.

Jamia Khatoon v. Yasin PLD 1959 Dacca 690: Ismail Dada Adam Soomar v. Shohart Bano PLD 1960 Kar. 852; Muhammadi Begum v. S. Salahuddin Ahmed PLD 1992 Kar. 86; Kishwar Malik v. A.M. Sadiq Malik PLD 1995 SC 457; Muhammad Siddiqi v. T.J. Ibrahim & Company 2001 SCMR 1443; Ouspeh Chaek v. Reman Nair AIR 1989 Ker. 317; Bhim Singh v. Kan Singh AIR 1980 SC 727 and Rajesh Kumar v. Virandra Kumar AIR 1994 All. 135 ref.

(b) Benami transaction‑‑‑

‑‑‑‑ Burden of proof‑‑‑Person against whom allegation of being Benami is levelled has to furnish evidence about the source of income but the person who alleges that the transaction is Benami has to shoulder the burden in the first instance‑‑‑Practically, in all cases it is the purchaser of property who claims that he purchased the same in the name of ostensible owner.

(c) Benami transaction‑‑‑

‑‑‑ Defence Saving (certificates‑‑‑Proof of ownership‑‑‑Determining factors‑‑‑Certificates themselves are the determining factor in view of the law governing the Scheme and they speak manifestly in favour of the person in whose name the same have been issued in accordance with relevant rules.

(d) Benami transaction‑‑‑

‑‑‑‑ Suit for ownership of Defence Saving Certificates‑‑ Plaintiff. daughter of the deceased had failed to discharge her burden that purchase of Defence Saving Certificates in question bearing the name of alleged Benamidar was in fact for the benefit of the children of the plaintiff, that the purchase money was paid by the father of the plaintiff or drawn front the funds of her father's business or from any account of her deceased father; presumption that the Benamidar had no source to provide such purchase money had adequately been rebutted; nothing‑could come on record that the money was provided by the deceased purchaser with a different intention; Defence being Certificates Rules lay down express provision to make nomination, but no such nomination was made in favour of children of the I?laitaiff or his two other heirs by the deceased; face value assigned to the certificates issued in the name of alleged Benamidar read with the entries made in accordance with the Rules governing the scheme of Defence Saving Certificates was by itself sufficient to defeat the presumption of Benami7ansaction and the only fact that the certificates in question were in the custody of the plaintiff was not enough to alter the position ‑‑‑Held, certificates in the name of alleged Benamidar were and be treated as her property and the transaction could not be said to be a Benami purchase made by the deceased father of the plaintiff for his heirs‑‑‑Defence :Saving Certificates in the name of alleged Benamidar, in circumstances, belonged to her and she was entitled to encash the same and realize the value thereof with profits thereon as she was not a Benamidar but a real owner of the Certificates.

(e) Defence Savings Certificate Rules, 1966‑‑‑

‑‑‑‑R. 13‑‑‑Amount and profit on the Defence Saving Certificates was the property of the purchaser which ordinarily had to be inherited by his heirs in case of his death‑‑‑Provision of nomination in the Rules, wherever defeated the rights of heirs was to be interpreted strictly as the said provision of Rules derogated from the general law that to case of inheritance the Muslim personal law was applicable to the parties‑‑‑Rule 13, Defence Saving Certificates Rules, 1966 which made a provision for nomination claim of a person under the said R.13, which was flagrantly in direct conflict with the substantive law of inheritance., the substantive law was to prevail and the Defend. Saving Certificate Rules, 1966 being the subordinate legislation were to give way to it and it was imperative to give effect to the provisions of law of inheritance notwithstanding the conflict‑‑‑Defence Saving Certificates in the name of deceased and profit; thereon were to be inherited by his legal heirs in accordance with law.

Muhammad Ayaz Khan for Plaintiff.

Rizwan Ahmed Siddiqui for Defendant No. 1.

Date of hearing: 29th January, 2002.

2002 C L C 1554

[Karachi]

Before Syed Zawwar Hussain Jafery, J

JUMMA KHAN and another---Applicants

Versus

BASHIR AHMED and 5 others---Respondents

Civil Revision No. 10 of 2001, decided on 11th February, 2002.

Pakistan (Administration of Evacuee Property) Act (XII of 1957) ---

----S. 22---Civil Procedure Code (V of 1908), O. VII, R.11 & S.115--­Plaint, rejection of---Evacuee property---Failure to get sale-deed confirmed by the Custodian---Suit property was evacuee property which was purchased by the father of the plaintiff on 25-11-1947 vide registered sale-deed---Such sale-deed was subject to confirmation by the Custodian as provided under S.22 of the Pakistan (Administration of Evacuee Property) Act, 1957---On the basis of unconfirmed sale-deed, the, plaintiff sought declaration of ownership qua the suit property---Trial Court rejected the plaint under O.VII, R.11, C.P.C. and appeal of the plaintiff was also dismissed by the Appellate Court---Validity---Where the sale-deed was not confirmed, the view taken by both the Courts below was in accordance with law---Plaintiff failed to point out any material irregularity for setting aside orders of the two Courts below--­High Court declined to interfere with the said orders in circumstances.

State through Custodian PLD 1996 SC 234 ref.

Abdul Haq Comboh for Applicants.

Zulfiqar Ali Jatoi for Respondents.

2002 C L C 1562

[Karachi]

Before Zahid Kurban Alvi and

Muhammad Mujeebullah Siddiqui, JJ

WORLDWIDE MOTORS (PVT.) LTD. ‑‑‑Appellant

Versus

COLLECTOR OF CUSTOMS and another‑‑‑Respondents

Special Custom Appeals Nos. 15 to 30 of 2001, decided on 31st August, 2001.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 32‑‑‑False information‑‑‑Recovery of duty short levied‑‑‑Dispute was with regard to the assessment of imported vehicles‑‑‑Appellants were the agents of the company from which the vehicles were imported‑‑­Vehicles after import were checked by the Authorities and duty was levied, resultantly the vehicles were released‑‑‑Later on the Authorities discovered that less duty was paid by the importers by declaring wrong seating capacity of the vehicles‑‑‑Authorities acquired information from the appellants about the vehicles and initiated proceedings under S.32 of the Customs Act, 1969‑‑‑Since the Authorities failed to locate the importers, therefore, proceedings were initiated against the appellants and penalty was imposed under S.32 of the Customs Act, 1969 on the ground that forged and manipulated catalogue was provided to them‑‑­Validity‑‑‑Where the appellants were not the importers within the meaning of S.32 of the Customs Act, 1969, and the importers for any reasons did not challenge or contest the matter, it did not mean that the appellants would be liable‑‑‑If indeed the Customs Authorities felt that forged and manipulated catalogue was provided to them, the Authorities could have verified the contents through many other means‑‑‑Foreign firm which supplied the vehicles was represented in Pakistan and it would not have been difficult to confirm whether the catalogue so produced was forged or not‑‑‑When the actual importers had gone court free, such penalty could not be imposed on the appellants‑‑‑Order of imposing the penalty was set aside-‑‑Appeal was allowed in circumstances.

Sohail Muzaffar for Appellants.

Shakeel Ahmed for Respondent.

Date of hearing: 23rd August, 2001.

2002 C L C 1573

[Karachi]

Before Zahid Kurban Alvi, J

DIN MUHAMMAD WAGAN‑‑‑Plaintiff

Versus

Mst. RASHIDA KHATOON through

Legal Heirs‑ ‑‑Respondents

Suit No.413 of 1986, decided on 14th January, 2002.

Benami‑‑‑

‑‑‑‑Benami transaction‑‑‑Onus to prove‑‑‑Property of deceased lady who died issueless was subject‑matter of the suit‑‑‑Plaintiff was husband of the deceased and to exclude the defendant, who was the only sister of the deceased, from the inheritance and the plea of Benami ownership was raised by the plaintiff who asserted that the suit properties were purchased by him as Benami in the name of his deceased wife‑‑­Validity‑‑‑Burden to prove such issue was on the plaintiff‑‑‑ Plaintiff had produced the documents which were in the name of his wife and he had not produced anything on record to show that the price of suit land was paid by him out of his own resources‑‑‑Where the defendant belonged to Sunni Hanafi Muslim Law, she was entitled to her share as per the Sunni Law‑‑‑Plaintiff failed to prove his case of Benamidar‑‑‑Suit was dismissed in circumstances.

Ali Muhammad Memon for Plaintiff.

.Muhammad Zia Kiyani for Respondents.

Date of hearing: 5th December, 2001.

2002 C L C 1584

[Karachi]

Before Muhammad Roshan Essani and

Muhammad Mujeebullah Siddiqui, JJ

AGHA MUHAMMAD ‑‑‑Appellant

Versus

ADDITIONAL COLLECTOR, PAKISTAN COAST GUARDS‑‑‑Respondent

Special Custom Appeal No.148 of 2000, decided on 21st December, 2001.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 223‑‑‑Customs General Order No. 10 of 1974 issued by Central Board of Revenue‑‑‑Directions issued by Central Board of Revenue‑‑­Guidelines to adjudicating officers‑‑‑Examination of prosecution witnesses‑‑‑Scope‑‑‑Guidelines given by Central Board of Revenue in the Customs General Order No. 10 of 1974, contained the established principles of natural justice based on sound principles of administration of justice‑‑‑Adjudicating Authority under the provisions of Customs General Order No.10 of 1974, was bound to observe and follow the instructions of the Central Board of Revenue in pursuance of the powers vested in the Board under S.223 of the Customs Act, 1969.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Provisions of special law and general law‑‑‑Effect‑‑-Special provision overrides the general provision and the special enactment prevails over the general enactment.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 187‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 117, 118, 119 & 122‑­Burden of proof‑‑‑Procedure to be followed ‑‑‑Qanun‑e‑Shahadat, 1984 is a general law and Customs Act, 1969, is a special law, therefore, the provisions contained in 5.187 of the Customs Act, 1969, prevail over and override the general provisions contained in the Qanun‑e‑Shahadat 1984.

(d) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 187‑‑‑Possession of contraband goods‑‑‑Onus to prove‑‑‑If there are any question whether a person was in possession of any goods or not, the burden to prove such fact is on the Customs Authorities and it is not the burden of a person alleged to have possessed some contraband goods to establish that he was not possessing the goods‑‑‑Once the possession of goods by any person is established then the burden of proof is cast upon him to show that he had the lawful authority to possess the same.

Muhammad Yousuf v. Assistant Collector of Customs, Karachi PLD 1970 Kar. 97 ref.

(e) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 156(2), 187 & 196‑‑‑Appeal‑‑‑Confiscation of smuggled goods‑‑­Goods validly imported‑‑‑Onus to prove‑‑‑Failure to maintain account of goods validly imported‑‑‑Consignment of betel nuts was intercepted by the Authorities in the year 1998‑‑‑Appellant in order to prove the validity of the consignment produced Bill of Entry pertaining to the year 1994‑‑­Authorities refused to accept the Bill of Entry and confiscated the consignment under S.168 of the Customs Act, 1969‑‑‑Appellate Tribunal allowed the release of the confiscated goods against redemption fine‑‑­Appellant raised the plea that since he had produced the Bill of Entry, therefore, it was the duty of the prosecution to prove the offence against the appellant‑‑‑Validity‑‑‑Gap of four years existed in filing of Bill of Entry on which the appellant placed reliance and confiscation of goods, therefore, burden heavily lay on 'the appellant to prove that the seized/confiscated betel nuts were covered by the Bill of Entry filed in the year 1994‑‑‑Where no such evidence was produced by the appellant, the appellant failed to discharge the burden cast upon him under S.187 of the Customs Act, 1969‑‑‑Appellate Tribunal rightly disbelieved the contention of the appellant to the effect that the seized goods were covered by Bill of Entry which was filed in the year 1994‑‑‑Importers and exporters under the provisions of S.211 of the Customs Act, 1969, were required to maintain accounts in respect of the goods imported or exported, except the goods imported/exported for bona fide private or personal purposes‑‑‑Appellant did not produce at any stage any accounts or stock register of the goods allegedly imported under the Bill of Entry filed in the year 1994 and thus the appellant had failed to establish that the seized/confiscated goods were covered by the Bill of Entry, filed in the year 1994‑‑‑High Court declined to interfere with the order passed by the Appellate Tribunal‑‑‑Appeal was dismissed in circumstances.

Muhammad Yousuf v. Assistant Collector of Customs, Karachi PLD 1970 Kar. 97 ref.

Sohail Muzaffar for Appellant.

Syed Ziauddin Nasir, Standing Counsel for Respondent.

Date of hearing: 21st December, 2001.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.‑‑‑ This appeal under section 196 of the Customs Act, 1969 is directed against the order, dated 3‑10‑2000 in Appeal No.789 of 1998 by the Customs Excise and Sales Tax Appellate Tribunal Karachi Bench.

1. Briefly stated the relevant facts giving rise to this appeal are that the appellant booked 260 bags of betel‑nuts by Train from Quetta to Karachi. The Pakistan Coast Guards received an information that the betel‑nuts comprised smuggled goods, and therefore, intercepted the same when it reached at Karachi City Railway. Station and seized the same. Before seizing of the goods a notice under section 163 of the Customs Act. 1969 was handed over to the Station Master The goods were seized under section 168 of the Customs Act and a notice under section 171 for violation of section 2 (s) and section 16 of the Customs Act. Intimating that the act was punishable under section 161(1), 168 and 89 of these Customs Act, was also pasted. The alleged smuggled betel­-bunts were examined and found to be worth Rs.619,200.

2. According to the respondent import of these goods is restricted under Federal Government Notification S.R.O.599(I)/91, dated 1‑7‑1991 issued under section 3(1) of the Import and Export (Control) Act, 1950, except on production of import authorization.

3. During the course of adjudication, the appellant took plea that the goods so seized were not smuggled one but were lawfully imported by him in the year 1994. The Bill of Entry filed in the year 1994 was also produced in support of the contention. The Adjudicating Authority got the goods examined physically by Association of Pakistan Commodity Traders and vide report, dated 25‑6‑1998, they reported that the betel‑nuts pertained to the crop of 1997, and therefore, the Bill of Entry, dated 6‑11‑1994 produced by the appellant does not cover the same. It was held that the Bill of Entry produced by the appellant was not related to the seized goods. The Adjudicating Authority confiscated the goods and the appellant preferred appeal before the Collector of Customs (Appeals) who directed to release the betel‑nuts against payment of redemption fine equal to 50% of the value thereof in addition to duty and taxes leviable thereon.

4. The appellant still dissatisfied preferred appeal before the Customs, Excise and Sales Tax Appellate Tribunal Karachi Bench (hereinafter referred to as the Appellate Tribunal). It was contended before the appellate Tribunal that the Adjudicating Authority did not afford opportunity to cross‑examine the witnesses who allegedly claimed the betel‑nuts to be smuggled. It was further contended that the Adjudicating Authority had no material to prove that the betel‑nuts so seized were smuggled. It was pleaded that the Bill of Entry produced by the appellant was duly verified, and therefore, there was no justification for confiscation of the goods. It was also pleaded that after production of the Bill of Entry, the burden was on the seizing agency to prove that the betel‑nuts were smuggled. Another plea was taken by the appellant that in the absence of any evidence on record the seizure of the goods and confiscation thereof was violative of the basic principle of the law. The main contention was that there was no restriction on sale of imported betel‑nuts in any prescribed manner and the betel‑nuts were duly covered under the Bill of Entry. With the production of Bill of Entry, the appellant discharged the onus of proof and the prosecution failed to come out with any evidence to rebut the claim. The existence of Pakistan Commodity Traders Association was also denied and it was contended that it was figment of imagination.

5. The learned members of the Appellate Tribunal, heard the representative of Pakistan Commodity Traders Association also, who confirmed that, to the best of their knowledge and experience the sample of betel‑nuts examined by them was of good quality and appeared to be of crop 1997 and was of Indonesian origin. The Appellate Tribunal did not accept the contention that the confiscated goods were covered by the old Bill of Entry representing clearance of consignment from Chamman Custom House. It was observed that, it was normal modus operandi adopted by the smugglers of betel‑nuts to justify movement of betel nuts smuggled originally imported for Afghan Transit but meant for Pakistani market, as the market for the same does not exist in Afghanistan. It was held that the circumstances, in this case were not different from similar other cases. It was further observed that the person claiming to be the owner of goods was declared absconder in another case of seizure/ confiscation in Hyderabad Collectorate in which an attempt to smuggle and justify the movement claiming legitimate import against many years old Bill of Entry failed and the goods were confiscated. It was held that in this case very lenient view was taken by the Customs officials in respect of the offence committed by the appellant as the confiscated goods were allowed to be released against‑nominal redemption fine.

6. With the above observations/findings, the appeal was dismissed.

7. The appellant still feeling aggrieved, preferred this appeal before us.

8. We have heard Mr. Sohail Muzaffar, learned counsel for the appellant and Syed Ziauddin Nasir, learned Standing Counsel for the respondent.

9. The sole point pressed by the learned counsel for the appellant before us is that the goods under consideration were covered by the Bill of Entry which was duly verified by the concerned Collectorate and, therefore, the onus was on the seizing agency to establish that the betel­nuts were smuggled. He has contended that the seizing agency has failed to establish that the betel‑nuts so seized were in fact smuggled and were not imported as claimed by the appellant. He has maintained that the Appellate Tribunal was not justified in placing reliance on the certificate issued by the Pakistan Commodity Traders Association, as the appellant was not afforded any opportunity to cross‑examine the person who examined the betel‑nuts in question and certified it to be pertaining to the crop of 1997. We asked specifically if the appellant, in addition to the production of Bill of Entry, which was filed in the year, 1994, produced any evidence to establish that the confiscated betel‑nuts were the same which were imported under the 'Bill of Entry filed in the year 1994. It was pointed out that the Bill of Entry under which the confiscated 'goods are alleged to have been imported pertained to the year 1994 and the goods under consideration were seized in the year 1998. There is a gap of four years in between the date of Bill of Entry and the date of seizure. The learned counsel was asked if any evidence was produced as to where the betel‑nuts were scored after its alleged import in the year 1994 and whether any accounts were maintained in respect of the imported goods. The learned counsel Stated that no such evidence was produced by the appellant. We then specifically asked, the learned counsel whether there was any material on record to establish the nexus between the confiscated goods and the Bill of Entry from which it could be held that the confiscated goods were lawfully imported and were duty paid having been covered under the Bill of Entry. The learned counsel for the appellant frankly conceded that except the production of Bill of Entry, no other evidence/material was produced by the appellant to establish the nexus between the confiscated goods and the Bill of Entry filed in the year 1994. He, however, submitted that once the Bill of Entry was produced by the appellant, it amounted to the discharge of burden by the appellant and shifting of the same to the prosecution to establish that the seized/confiscated goods were smuggled one.

10. On the other hand, the learned Standing Counsel, submitted that the burden to establish that the seized/confiscated goods were not smuggled one, was on the appellant and the said onus was not discharged as held by the Appellate Tribunal and consequently, the Appellate Tribunal has rightly dismissed the appeal.

11. We have carefully, considered the contentions raised by the learned Advocates for the parties. We have perused the impugned orders and the material available on record. We are persuaded to agree with the submission of Mr. Sohail Muzaffar, on the point that the Adjudicating Authority and the Appellate Authorities including the Appellate Tribunal could not place any reliance on the certificate issued by the Pakistan Commodity Traders Association and the Appellate Tribunal has misdirected in hearing the representative of the said association and place reliance thereon. Mr. Sohail Muzaffar, has rightly placed reliance on CGO 10/1974 issued by the C.B.R. which reads as follows: ‑‑

“(i) It is becoming very common for the Adjudicating Officer not to examine the prosecution witnesses in the presence of parties concerned and not to keep a record of the proceeding. Time after time it has been held by 'the High Court and the Supreme Court that if the party concerned is not allowed to cross‑examine the witnesses or to produce his defence, it offends the principle of natural justice. The Supreme Court in Sardar Ali's case in PLD 1959 (SC) p.25 had held that if a witness is not examined by the Adjudicating Officer in presence of the party concerned, it violates the principles of natural justice and that evidence cannot be taken into consideration.

(ii) Adjudication proceedings should be proper judicial proceedings and a diary should be kept of each happening and the order passed from day to day should be recorded. .

(iii) Even if the party has not summoned any witness, it is the duty of the prosecution to produce all the witnesses .and documents before the ~ Adjudicating Officer in presence of the party concerned. Without this the proper hearing is not given and there is a violation of principle of natural justice.”

1. The above guidelines given by the C.B.R. at, the instance of D.A.‑G. contained the established principles of the natural justice based A on very sound principles of the administration of justice. The Adjudicating Authority was bound to observe and follow the instructions of the C. B. R. in pursuance of the powers vested in C. B. R. under section 223 of the Customs Act, 1969.

2. However, the acceptance of contention of Mr. Sohail Muzaffar, on the point of non‑acceptance of the evidence furnished by. Pakistan Commodity Traders Association, for want of proper opportunity to the appellant, is not the end of matter. The moot point for consideration is, as to, on whom lies the onus of proof to establish that the goods were the smuggled goods or not. The general principles of law in this regard are contained in Articles 1.17, 118, 119 and 122 of the Qanun‑e‑Shahadat Order, 1984, which read as follows: ‑‑

"117. Burden of proof.‑‑‑ (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

1. On whom burden of proof lies.‑‑‑ The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

2. Burden of proof as to particular fact.‑‑‑ The burden of proof as to any particular fact lies on that persons who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

3. Burden of proving fact especially within knowledge.‑‑‑When any fact is especially within the knowledge of any person the burden of proving that fact is upon him.”

4. However, there is a special provision contained in section 187 of the Customs Act, 1969, which is as follows: --‑‑

“187. Burden of proof as to lawful authority, etc.‑‑‑When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force the burden of proving that he had such authority, permit licence or other document shall lie on him.

1. It is established principle of law that special provision B overrides the general provision and the special enactment prevails over the general enactment. The Qanun‑e‑Shahadat Order, 1984 is a general law and Customs Act, 1969, is a special law, therefore, the provisions contained in section 187 of the Customs Act, 1969, shall prevail over and override the general provisions‑ contained in the Qanun‑e‑Shahadat Order, 1984.

2. A perusal of section 187 of the Customs Act, 1969, shows that when a person is found in possession of any goods, the burden of proof is cast upon him to show that he was holding such goods under lawful authority, permit or licence. At this juncture, we would like to clarify that if there is any question whether a person was in possession of any goods or not, the burden to prove this fact is on the Customs Authorities r and it is not the burden of a person alleged to have possessed some contraband goods to establish that he was not possessing the said goods. I However, once the possession of goods by any person is established then the burden of proof is cast upon him to show that he had the lawful authority to possess the same. The question of burden of proof came for consideration before a Division Bench of this Court in the case of Muhammad Yousuf v. Assistant Collector of Customs,, Karachi PLD 1970 Kar. 97. The relevant facts in the cited case were that certain contraband cigarettes and betel‑nuts were confiscated under the provisions of Sea Customs Act, 1878 read with provisions of Import and Export (Control) Act, 1950. The petitioner was found in possession of large quantity of betel‑nuts of foreign origin and as a result of search 528 bags of betel‑nuts were seized. It was the case of petitioner that they had purchased the goods in question from a firm of Karachi who had lawfully imported them into the country and that a large quantity of betel‑nuts of foreign origin, were open auctioned at Karachi by the Sea Customs Authorities and the petitioner purchased some of these goods in the open market against regular bills, invoices, cash memos and receipts: On the basis of this plea it Was contended that the seizure of betel‑buts in May, 1966 was without lawful authority. The petitioner could not succeed before the Departmental Authorities and the C.B.R. The matter was ultimately brought before this Court in a Constitution petition. It was contended before this Court that the petitioner had produced cogent evidence before the Customs Authorities to the effect that he had acquired the goods lawfully and consequently, the impugned action could not be properly taken. The contention was not accepted by the Honour-able Judges of the Division Bench of this Court. It was held as follows, and the petition was dismissed.

"Even otherwise the petitioner does not appear to have any case on merit. His contention before the respondents was that he had acquired a part of the goods from one Muhammad Arif, who had earlier purchased them in an auction at the City Court, Karachi and a part from bona fide passengers. In support of his contention he produced various receipts before the respondents which on scrutiny were found not to cover a part of the goods. The further conclusion of the respondents was that the petitioner had failed to produce any satisfactory evidence to show that he had purchased a part of the goods from bona fide passengers. They also disbelieved the petitioner that he had purchased some of the goods from one Muhammad Arif, as, according to them, the goods seized from the petitioner were altogether fresh while the goods which were auctioned at the City Court about three and a half months earlier were from an old stock. These findings of the respondents, based as they are on proper evidence, were not open to interference by us while exercising jurisdiction under Article 98 of the Constitution, notwithstanding the fact that on reappraisal of the evidence on record we might have come to a different conclusion.

Mr. Muzaffar Hassan, also faintly argued that the respondents have wrongly placed the onus on the petitioner to prove that the goods had not been imported into the country in contravention of the notification under section 3(3) of the Import Export Act, 1950. We find no force in this contention either it is an admitted position that the goods were of foreign origin and their import into the country was prohibited. Therefore, according to section 177‑A of the Sea Customs Act, it was the burden of the petitioner to prove that goods in question had not been imported into the country unlawfully and further that no act was committed in relation to those goods so as to defraud the Government of any duty payable on them."

1. Section 177‑A of the Sea Customs Act, 1878, corresponds to section 156(2) of the Customs Act, 1969, which reads as under: ‑‑

“156(2) Where any goods specified in clause(s) of section 2 or in a notification issued there-under are seized under this Act in the reasonable belief that an act to defraud the Government of any duty payable thereon or to evade any prohibition or restriction for the time being in force by or under this Act has been committed in respect of such goods, or that there is intent to commit such an act, the burden of proving that no such act has been committed or there was no such intent shall be on the person from whose possession the goods were seized.”

1. There are various points of similarities in the cited judgment and the facts of the present case. We, therefore, respectfully following the dictum laid down in the cited judgment hold that the provisions contained in section 187 of the Customs Act, clearly cast burden on the appellant to show that the confiscated goods were held by him under lawful authority. In the cited case betel‑nuts were purchased in open auction in the years 1964 and 65 and the plea that betel‑nuts confiscated in the year 1966 were covered by the said purchase was not accepted for the reason that the petitioner in the cited case was not able to establish by producing evidence that the confiscated goods were .covered by the invoices through which the betel‑nuts were purchased in the open auction. Likewise, in the present case there is a gap of four years in the filing of Bill of Entry on which the appellant placed reliance and the confiscation of goods, therefore, burden heavily lay on the appellant to prove that the seized/confiscated betel‑.nuts were covered by the Bill of Entry filed in the year 1994. As it is admitted by the learned counsel for the appellant that no such evidence was produced by the appellant, therefore, it is held that the appellant failed to discharge the burden cast upon him under section 187 of the Customs Act and consequently, the appellate Tribunal rightly disbelieved the contention of the appellant to the effect that the seized goods were covered by Bill of Entry which was filed in the year 1994. The impugned finding of the Appellate Tribunal is in consonance with the law and requires no interference.

2. We, would further like to point out that under section 211 of the customs Act, 1969, the importers and exporters are required to maintain accounts in respect of the goods imported or exported, except the goods imported exported for bona fide private or personal purposes. The appellant has not produced at any stage any accounts or stock register of the goods allegedly imported under the Bill of Entry filed in the year 1994 and thus the appellant has miserably failed to establish that the seized/confiscated goods were covered by the Bill of Entry, filed in the year, 1994.

3. For the foregoing reasons, the appeal stands dismissed.

Q.M.H./M.A.K/A‑319/K

Appeal dismissed.

2002 C L C 1598

[Karachi]

Before Sarmad Jalal Osmany, J

Messrs INDUS MEDICAL STORE through duly

Constituted Attorney‑‑‑Appellant

Versus

MUHAMMAD SAEED ANSARI‑‑‑Respondent

First Rent Appeal No.491 of 1999, decided‑on 14th May, 2001

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

‑‑‑‑S.15‑‑‑Default in monthly rent‑‑‑Proof‑‑‑Landlord denied receipt of rent for the alleged default period‑‑‑Landlord in his affidavit in evidence had reiterated the contents of application under S.15 of the Sindh Rented Premises Ordinance, 1979, that no rent had been received by him from the tenant for the default period‑‑‑Rent Controller allowed the application and ordered eviction of the tenant‑‑‑Validity‑‑‑Where payment of rent for the period was not proved by the tenant, the default was proved‑‑‑High Court declined to interfere with the order of eviction passed by the Rent Controller‑‑‑Appeal was allowed in circumstances.

Mst. Nur Jehan Begum v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Shafique Ahmed v. Abdul Rehman 1987 MLD 2243; Mrs. Shamshad Anwar v. Saeed Ahmed 1992 CLC 2077 and Mst. Qamer Jahan v. Haji Habib Judira 1990 CLC 591 ref.

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

‑‑‑‑S. 15‑‑‑Default in monthly rent‑‑‑Adjustment of rent from amount of Pugree/goodwill‑‑‑Tenant failed to bring on record the payment of Pugree/goodwill either to the landlord or previous owner of the premises‑‑‑Effect‑‑-Adjustment of arrears of rent from Pugree/goodwill could not be claimed by the tenant in circumstances.

M. K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200 distinguished.

Muhammad Ashraf v. Ismail 2000 SCMR 498 and Nargis Latif v. Feroz Afaq Ahmed Khan 2000 SCMR 99 ref.

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

‑‑‑‑S. 15‑‑‑Monthly rent‑‑‑Mode of payment‑‑‑Practice of tender and acceptance of rent on lump sum basis‑‑‑Effect‑‑‑Such practice cannot negate the express provisions of Sindh Rented Premises Ordinance, 1979, whereby a particular methodology had been enacted for the payment of rent which the tenant has to abide by in order to avoid being evicted on the ground of default.

Pragma Leather Industries v. Mrs. Saadia Sajjad PLD 1996 SC 724; Aleema Ahmed v. Amir Ali PLD 1984 SC 32 and Shezan Limited v. Abdul Ghaffar and others 1992 SCMR 2400 ref.

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

‑‑‑‑S. 15‑‑‑Ejectment of tenant‑‑‑Default in monthly rent‑‑‑Specific mode of payment of rent‑‑‑Established practice existed between the parties of tender and acceptance of rent on lump sum basis and issuance of receipts after such tender had been made‑‑‑Validity‑‑‑By not issuing receipt for a particular period, the ‑landlord could not say that a default had been occurred‑‑‑Such conduct would be an engineered default and not a wilful default in circumstances.

Pragma Leather Industries v. Mrs. Saadia Sajjad PLD 1996 SC 724 ref.

Aijaz Ahmed Khan for Appellant.

Mehmood Ahmed Khan for Respondent.

Dates of hearing: 10th and 13th November, 2000.

JUDGMENT

This is a first rent appeal arising from the order, dated 30‑4‑1999 passed by the learned Vth Senior Civil Judge arid Rent Controller, Karachi (South) whereby in Rent Case No. 1270 of 1993 the application for ejection was allowed and the appellant was directed to vacate the rented premises i.e. Shop No.5, IIIrd Floor, Rehman Chambers, Katchi Gall No.2, Marriat Road, Karachi hereinafter referred to as the demised premises and hand over peaceful vacant possession thereof to the respondent within sixty (60) days from tile date of the order.

1. The facts in brief are that the respondent is the owner and landlord of the demised premises and the appellant is the tenant thereof on a monthly rent of Rs.200. It is alleged that the appellant had committed default in payment of rent from the month of January, 1993 and hence ejection was sought on this ground as also on, the ground of .personal bona fide need. The defence put up by the appellant before the learned Rent Controller was that in fact he had always been paying rent regularly to the respondent and in this regard has produced various rent receipts beginning from the year 1984 till December. 1992 and has also pleaded that there was a confirmed practice between the parties that rent was received in lump sum sometime for six months at a time and on other occasions for one year. As regards the default period, it is the appellant's case that rent for the period January to June, 1993 was tendered on 15‑5‑1993 to the respondent who accepted it but did not issue any receipt immediately and as per practice promised to do so in due course. Thereafter, on or about 15th August, 1993 when the appellant's son went to the respondent to collect the receipt and also to render rent for the second half of the year 1993 viz. from 1‑7‑1993 to 31‑12‑1993 the respondent avoided to deliver the receipt as well as to accept the rent for the second half of the year 1993. This prompted the appellant to remit the rent for the second half of the year 1993 by means of money orders which was not accepted by the respondent and finally the appellant was constrained to deposit the entire rent for the year 1993 before the learned Rent Controller. It is the appellant's further case that the respondent never required the demised premises for his own personal bona fide need etc.

2. Based upon the parties' pleadings the learned Rent Controller framed the following issues:

(i)???????? Whether the opponent has committed wilful default in payment of rent?

(ii)??????? Whether the demised premises was required by the applicant for his personal bona fide need?

(iii)?????? What should the order be?

1. The parties led their evidence and after having heard the arguments of the respective counsel the learned Rent Controller came to the conclusion that default had been committed by the appellant but the demised premises were not required by the respondent for his personal bona fide need. Consequently, ejection was ordered on this basis and hence the appeal.

2. Mr. Aijaz Ahmed Khad, in support of the appeal, has contended that as per the cross‑examination of the respondent, he had admitted that the contents of paragraph 4 of the written statement are true and correct. Learned counsel has submitted that in such paragraph 4 it is clearly mentioned that the respondent used to collect cumulative rent for six months and used to issue receipts) subsequently at his own convenience and also that the respondent had collected the rent for the demised premises for the period from January, 1993 to June, 1993 on or about 16th May, 1993 amounting to Rs.1,200 Consequently learned counsel has submitted that in view of this clear admission of receipt of rent for the disputed/default period nothing further, remains to be established by the appellant and accordingly, the learned trial Court fell into grave error by holding that the respondent in his cross‑examination had specifically denied the suggestion of the learned counsel of the appellant that he had received the rent for the disputed/ default period and has not issued the rent receipt. Similarly, learned counsel has referred to the affidavit‑evidence of the appellant where in paragraph 4 thereof he had deposed that on or about 16th May, 1993 the rent for the period January to June; 1993, amounting to Rs.1,200, was paid to the respondent as usual without receipt being furnished by the latter as per established practice on which aspect of the matter the appellant has not been cross‑examined at all. Similarly, learned counsel has referred to the affidavit‑in‑evidence of the appellant's son namely Muhammad Abdullah who also had deposed on the same lines as per paragraph 4 of his affidavit‑in‑evidence and on which too he has not been cross‑examined at all. Consequently learned counsel has submitted that where the facts deposed in an affidavit‑in-?evidence have not been challenged they would be deemed to have been admitted as per Mst. Nur Jehan Begum v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 Similarly he has submitted that the Pugree/goodwill money of the demised premises amounting to Rs.12,500 had been paid by the appellant to the respondent which should be adjusted against the default if any, and in this respect has relied upon the case of M. K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200. Learned counsel has submitted further in this regard that under cross‑examination, the respondent has displayed his ignorance as to the receipt of Pugree/ goodwill which means admission as per Shafique Ahmed v. Abdul Rehman 1987 MLD 2243.

3. On the other hand, Mr. Mehmood Ahmed Khan, appearing for the respondent, has submitted that the appellant's entire case is based on the cross‑examination of the respondent where he admits that the contents of paragraph 4 of the written statement, filed by the appellant are true anti correct. However, as per learned counsel this admission is to be seen to conjunction with the earlier question, particularly, as earlier he had denied receipt of rent for the default period. According to learned counsel the earlier question posed to the witness was whether he was aware of the contents of the written statement to which he replied in the affirmative and then the contents of paragraph 4 of the written statement were read over to the witness to which he said that the same were true and correct. This, according to the learned counsel only amounts to the admission that he had knowledge of the written statement and not necessarily that paragraph 4 thereof was factually correct. As to the contention put forward by learned counsel for the appellant that the factum of payment of rent for the disputed period was asserted by both the appellant and his son and they were not cross‑examined on the same, this per learned counsel, is totally incorrect. According to learned counsel the cross‑examination of both these witnesses would display that suggestions were made to them that the rent for the disputed period was not paid, which they have denied. Further learned counsel has relied upon the fact that the rent receipts on the record would display that these had been issued without delay although being for a lump sum period of six months each. Hence, it is inconceivable as to why after tendering rent for the disputed period on 15‑5‑1993, the landlord should wait up till August, 1993 in order to obtain a receipt for such period as the same was highly improbable. In view of these circumstances learned counsel has submitted that the appellant has failed to prove payment of rent for the default period the onus of which lay upon him as per Mrs. Shamshad Anwar v. Saeed Ahmed 1992 CLC 2077. Learned counsel has also relied upon Pragma Leather Industries v. Mrs. Saadia Sajjad PLD 1996 SC 724 for the proposition that the practice of lump sum tender and acceptance of rent between the parties cannot negate the tenant's obligation to pay rent within the statutory period which had not been done in the present case by the appellant.

4. As regards adjustment of Pugree/goodwill, learned counsel has submitted .this could not be done per Mst. Qamer Jahan v. Hail Habib Judira 1990 CLC 591 so also he has submitted that this plea was never taken either the written statement or the evidence produced before the Rent Controller by the appellant and hence could not be taken at the appellate stage particularly when there was nothing on the record as to the terms and conditions on which such Pugree/goodwill was given etc.

5. I have heard both learned counsel and my conclusions are as follows:

It would be seen that the case of the appellant is based, inter alia, on the alleged admission by the respondent in his cross‑examination before the learned trial Court that para. 4 of the appellant's written statement was correct whereby it had been averred that the rent for the default period had been paid to the respondent by the appellant amounting to Rs.1,200. However, in my opinion, this alleged admission has to be seen to the context of the overall cross‑examination of the respondent as well as that of the appellant. Considering this aspect of the matter, it is quite clear that the respondent just prior to his alleged admission that the contents of para.4 of the written statement were correct has also averred that he knew the contents of the written statement and hence it is quite possible that he viz. the respondent while admitting that the contents of para.4 of the written statement were true and correct meant that he was aware of said para.4. So also it is significant to note that earlier in his cross‑examination the respondent has denied receipt of rent for the disputed/default period, Consequently. in my view, these is no admission by the respondent of receipt of rent for such period, A particularly, when in his affidavit‑of‑evidence he has reiterated the contents of the application under section 15 of the Sindh Rented Premises Ordinance, 1979 that no rent has been received by him from the appellant after December, 1992.

1. As to the learned counsel for the appellant's contention that the appellant and his witness were not cross‑examined at all on their plea taken in their affidavit‑in‑evidence that they had paid the rent for the disputed period, it would be seen that such cross‑examination is present on the record of the learned trial Court wherein suggestions have been put to both of them to the contrary, which they have denied.

2. Learned counsel for the appellant's next contention is that in any event the rent for the default period could be adjusted from the goodwill/Pugree in the amount of Rs.12,500 which was given by the appellant to the previous owner of the rented premises. In this regard it would be seen that nothing has come on the record as far as payment of such Pugree amount is concerned either to the respondent or previous owner of the rented premises. In any event, in my opinion adjustment of arrears of rent from goodwill/Pugree could tint be claimed by the appellant from the respondent as admittedly such amounts had been paid to the original owners of the rented premises for which proposition Muhammad Ashraf v. Ismail 2000 SCMR 498 can be cited. As to the case cited at the bar by the learned counsel for the appellant M.K. Muhammad and another v. Muhammad Abu Bakar (supra) In my opinion the same is not relevant as in that case it had been held both by the trial Court and the Appellate Court the landlord had received the amount of Rs.17.000 as goodwill money, which the Honourable Supreme Court allowed to be adjusted against arrears of rent. However, in the present case, as observed above, nothing has come on the record as to the receipt of any amount of goodwill money by the respondent, which has not been proved in the circumstances of the cast:. In Nargis Latif v. Feroz Afaq Ahmed Khan 2000 SCMR 99, the Honourable Supreme Court also disallowed adjustment of goodwill money as it had riot been proved.

3. However, having said as much the other aspect of the matter is with regard to the tender of rent by the appellant on the basis of the alleged established practice of such tender on lump sum basis for prolonged periods and acceptance of the same by the respondent. In this connection, it would be seen that as per the rent receipts on the record of the Warned trial Court viz. Exhs.A/2 to A/11, beginning from 1983 such receipts would establish a practice between the parties of lump sum tender and acceptance of rent. For example for the period from July to December. 1983 receipt No.529 is available and is dated 1‑12‑1983. Similarly for the period from January to May, 1984, the receipt, is dated 28‑5‑1984. For June to December, 1985 the receipt is, dated 24‑12‑1985. January to June, 1987, the receipt is again dated 13‑8‑1987, July to December. 1987, receipt is dated 13‑8‑1987, July, to December, 1989, receipt is dated 20‑I 1‑1989 January to June, 1990, it is again dated 6‑11‑1990. For July to December. 1991 it is dated 14‑5‑1992 and January to December, 1992 it is dated 20‑8‑1992.

4. From a perusal of the above receipts it transpires that whereas rent was accepted in some cases for six months at a time in other cases it was accepted for the whole year and some times in advance as well.. For example for the period January to December, 1987 at least for the months of .August. September, October. November and December, 1987 rent was paid in advance as the receipt is dated. 13‑8‑1987. The same is the. case too the period from January to December. 1990 where for the entire period rent was tendered on 6‑11‑1990, which would denote that rent for the months of November and December, 1999 rent was given in advance. However, as per dictum of the Hon'ble Supreme Court laid down in Aleema Ahmed v. Amir Ali PLD 1984 SC 32 and Shezan Ltd. v. Abdul Ghaffar and others 1992 SCMR 2400, it has been held that the practice of IC tender and acceptance of rent on lump‑sum basis cannot negate the express provisions of the Sindh Rented Premises Ordinance. 1979 whereby a particular methodology has beet enacted for the payment of the rent which the tenant has to abide by in order to avoid being evicted oh the ground of default. Nevertheless the Hon'ble Supreme Court whilst discussing the above mentioned cases in Pragma Leather Industries v. l Sadia Sajjad (supra) has opined that the question as to whether a tenant is guilty of a wilful default depends on the facts of each case and consequently if a landlord by fraud or by any sharp practice creates a default the Rent Controller in such a case may hold that there is no wilful default tin the part of the tenant concerned warranting his/her eviction. In sucks an event the High Court would be justified not to interfere with the above finding as an Appellate Court and so also the Supreme Court would be reluctant to upset the above concurrent findings of fact. In my opinion, therefore, where there has been an established practice between the parties as in the present case of tender and acceptance of rent on lump‑sum basis and issuance of receipts after such tender has been made, then, by not issuing a receipt for a particular period, the landlord cannot be heard to say that a default has occurred. This would indeed be a sharp practice as contemplated in the case of Pragma Leather Industries (supra) which would then be an engineered default and not a wilful one.

5. In the circumstances the appellant could be given the benefit of the doubt as far as default is concerned up to August 15, 1993 when as per the appellant's own admission the respondent had failed to hand over the receipt for the rent received by him on 16‑5‑1993 for the first half of 1093 (which would amount to refusal) and also refused to accept the rent for the second half of the year 1993 which were subsequently sent through money order twice. However thereafter it was the appellant's duty to deposit the rent as per the provisions of the Sindh Rented Premises Ordinance, 1979 within the statutory period. In this connection it would be seen that rent up to August. 1993 should have been deposited with the learned Rent Controller within sixty days courting from the date when the appellant had knowledge that the money order in the amount of said rent was refused. The first money order was dispatched on 19‑8‑1993 and the second one on 7‑9‑1993 both in the amount of Rs.1.200 each being rent for the period July to December 1993 and finally the entire amount for the year 1993 in the sum of Rs.2,400 was deposited with the learned Rent Controller on 12‑11‑1993 in M.R.C. No.1603/1993 filed on 11‑11‑1993. There is nothing on the record to establish when the first money order was returned to the appellant upon refusal by the appellant as no postman was examined for this purpose. However, a reasonable time may be presumed in this regard, say a week to ten days from dispatch of; the same which would mean for the first money order, the appellant would be presumed to have received it back upon refusal by the latest on 26‑8‑1993. In the circumstances, deposit of the rent for January to June, 1993 on 12‑11‑1993 (even if it were presumed that the first money order was for the period January to June, 1993) would not be within the statutory period of two months. In my view, therefore, default for the period January to June, 1993 stands proved and consequently I would pass orders for the ejectment of the appellant from the premises in question. E The appellant is directed to hand over the vacant possession of the premises to the respondent within three months from today as it is an old tenancy. Order accordingly. This F.R.A. is in the circumstances dismissed.

Q.M.H./M.A.K./I-57/K

Appeal dismissed.

2002 C L C 1609

[Karachi]

Before Anwar Mansoor Khan,. J

Dr. IDREES‑‑‑Plaintiff

Versus

NATIONAL LOGISTIC CELL, MINISTRY

OF DEFENCE, GOVERNMENT OF

PAKISTAN through Commander

and 2 others‑‑‑Defendants

Execution Application No. 166 of 2000, decided on 2nd May. 2001.

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

‑‑‑‑S. 47‑‑‑Executing Court ‑‑‑Re-determination of liabilities ‑‑‑Validity‑‑­Not open to the Executing Court to go behind a decree or re-determine the liabilities of the parties.

Mst. Naseem Akhtar‑and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22 eel.

(b) Sindh Chief Court Rules (O. S.)‑‑‑

‑‑‑‑R. 176‑‑‑Civil Procedure Code (V of 1908). S.47‑‑‑Execution of decree‑-‑Rectification of mistake by Executing Court‑‑‑Contention of the judgment‑debtor was that there had been omission in the decree and the same could be rectified by the Executing Court‑‑‑Validity‑‑‑Such rectification would be going of the Executing Court behind the decree which could not be allowed‑‑‑Application was dismissed in circumstances.

(c) Words and phrases‑‑‑

‑‑‑‑"Logistics"‑‑‑Meaning.

Dr. Aon Muhammad Khan v. Lt.‑Gen. (Retd) Saeed Qadir and others PLD 1987 SC 490 ref.

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

‑‑‑‑S. 47‑‑‑Execution petition‑‑‑National Logistics Cell, decree against‑‑­Plea raised by the judgment‑debtor was that the National. Logistics Cell was a part of Pakistan Army and Pakistan Army Act, 1952 was applicable to its personnel, therefore, the judgment against the Cell was coram non judice‑‑‑Validity‑‑‑National Logistics Cell was not a part of the Pakistan Army and not controlled by it‑‑‑National Logistics Cell worked for profit and gains and was therefore, a body corporate‑‑‑Since the judgment‑debtor, the, National Logistics Cell, was not a part of Pakistan Army the question that applicability off' Pakistan Army Act, 1952, might bar the jurisdiction would not arise‑‑‑High Court had jurisdiction to proceed in the matter‑‑‑Objection on behalf of the judgment‑debtor was set aside‑‑‑Execution was allowed in circumstances.

Mst. Naseem Akhtar and 4. others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22; Mst. Sakina and 3 others v. Messrs National Logistic Cell and 2 others 1995 MLD 633; Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362; Rasheed Ahmed v. The State PLD 1972 SC 279; Muhammad Aslam v. Incharge National Logistic Cell and others C.P. No. 87 of 1998; Dr. Aon Muhammad Khan v. Lt.‑Gen. (Retd.) Saeed Qadir and others PLD 1987 SC 490; Brigade Commander Headquarters Field Command. NLC. Karachi v. The State 1996 MLD 469; Mrs." Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Sh. Liaqat Hussain and others v. Federation of Pakistan and others PLD 1999 SC 504: Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286 and Federation of Pakistan and 2 others v. Khurshid Ahmed and another 1999 SCMR 664 ref.

Nasir Maqsood for the Decree‑Holder.

Abdul Rauf for the Judgment‑Debtors Nos. 1 and 2.

ORDER

Judgment‑debtors have filed an application under Rule 176 of Sindh Chief Court Rules being C.M.A. No. 568 of 2001 wherein it has been prayed that as the National Insurance Corporation was the Insurance Company which had insured the vehicles of the judgment­debtor No. 1, as such they are liable to pay the decretal amount. Since the said application is not fixed today, by consent the application is taken up and heard.

1. Major (Recd.) Abdul Rauf, Advocate has stated' at the bar that the application under Rule 176. SCCR has been moved on the basis of and under his right created in consequence of the judgment delivered in the present case in which it has been stated: ‑‑‑

Should the defendants Nos, 1 and 2 wish to claim indemnity from the defendant No.3 under a separate contract of insurance they could file an application under rule 176 of Sindh Chief Court Rules which proposition the learned counsel for defendants Nos. l and 2 accepts ...."

“According to him, therefore, this application could be moved in the present Execution Application and this Court would have the authority, therefore, to pass an order directing the insurance company to make the payment of the decretal amount. According to him, they .have already given the premium by insuring the vehicles in question and other vehicles belonging to NLC in the sum of Rs.33,423,349.00.

1. A perusal .of the said judgment passed by a Single Judge categorically states:

“………….Consequently, the suit is disposed of against the defendant No.3 as well.”

In suit the plaintiffs had prayed for a judgment and decree against the defendants Nos. l, 2 and 3 jointly and/or severally. The judgment, however as is evident has not decreed the suit against the defendant No.3. the Insurance Company namely National Insurance Corporation. The decree also categorically states:

“......Be that as it may insofar as this suit is concerned on the basis of admission by defendants Nos. 1 and 2 who are primarily liable for this claim in this suit, this suit is decreed against the defendants Nos. l and 2 as prayed.”

Ex facie the decree is only against the defendants Nos. l and 2 and that no doubt leave has been given to the said defendants Nos. l and 2 to proceed against the insurance company but the executing Court shall have no authority or jurisdiction to pass an order directing the defendant No.3 to make the payments. It is a well‑settled principle of law that it is not open to the Executing Court to go behind a decree or re‑determine the liabilities of the parties. I am supported in this by the judgment in the case of Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22. It is argued by Mr. Abdul Rauf that in the event the decree is coram non judice, the order shall be void and not executable. It is further stated by Mr. Abdul Rauf that the judgment in all the 16 suits were passed and that the judgment was passed jointly and/or severally and not as shown in the present judgment.

1. Presently, the executing Court is sitting only to execute an existing decree an& if any error is on the face of it or otherwise if the order was void as passed without jurisdiction appropriate remedies were available to the said defendants to have the judgment modified. Admittedly, no application for rectification or reviewing the judgment was made. Admittedly, no appeal has been filed against the said judgment or decree. It is the case of Mr Abdul Rauf that as the order was coram non judice, he was not bound to tile any appeal and the executing Court itself can ignore the said order. He sates that as the judgment was passed coram non judice, it is upon the Court to determine and refuse to execute the decree.

2. Mr. Abdul Rauf has also referred to the case of Mst. Sakina and 3 others v. Messrs National Logistic Cell and 2 others 1995 MLD 633 to which the decree that was passed was against the defendants jointly and/or severally. The question was taken up in Execution No. 44 of 1994; a copy of order passed therein has been produced in Court by Mr. Abdul Rauf and states that in view of this order a similar order is liable refers to the case of Multi-line Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 in which it has been held that a judgment of an equal bench on the same point is binding upon the second bench and if a contrary view is to be taken, it is to be done by a larger bench. The said case was in reference to petitions in which the order was passed by a Division Bench and it was held that the order of a Division Bench is liable to be followed by another Division Bench of the same Court. Though this case may be distinguishable in the present case but even if it is taken to be binding and that an order of a Single Judge of the same Court be treated to be binding on the other Single Judge the order in Execution No. 44 of 1994 in fact does not support the contention of Mr. Abdul Rauf. The relevant portion that has been read out by Mr. Abdul Rauf is reproduced as under: ‑‑‑

“6. At the hearing there was no contest with regard to the point that no appeal from the judgment and decree was preferred by any of the parties with the admitted position in law that the judgment and decree has attained finality The case canvassed by J/D No‑3 at the bar appears to be that the liability of the Insurance Company is confined to the payment of Rs.20.000 only .in terms of section 95(2)(x) of the Motor Vehicles Act, 1939. From the record it appears that such plea was not raised before the trial Court and if raised it was not accepted by the trial Court who proceeded to pass the decree against all the J/Ds jointly and severally. It is well‑settled that executing Court is not entitled to go behind or re‑determine the disputed question of fact and law as held by the apex Court in Mst. Naseem Akhtar v. Shalimar General Insurance Company Ltd. 1994 SCMR 22. In this view of the matter I am inclined to allow both the applications made by D/H and dismiss the application for refund of the amount. With the credit of the balance amount by the HBL, the decree shall stand satisfied. This disposes of the applications as well as the statements filed by the parties counsel.”

In this case, as referred to above, the execution was to execute a decree passed in the case of Mst. Sakina and 3 others v. Messrs National Logistic Cell and 2 others 1995 MLD 633 in which the judgment passed was against the defendants jointly and/or severally. What the learned Juu~e has said in the order passed on 12‑4‑1999 afore‑referred is:

“It is well‑settled that the Executing Court is not entitled to go behind or re‑determine the disputed question of fact and law.”

“In that case the determined question was that the Insurance Company was made liable as jointly and severally with the other defendants. In this case, however, the decree has not been passed against the insurance company. The argument of Mr. Abdul Rauf is that there has been an omission in all the 16 cases and that the said omission has to be taken care of or rectified by the executing Court. If that view was to he taken, it would seem that the executing Court is going behind the decree which in view of the above discussion, cannot be allowed. The judgment‑debtors are free to move appropriate proceedings against the insurance company, but in the present case such an application is not maintainable M.A. No. 568 of 2001 therefore, is dismissed.

1. The hearing of Main Execution Application is taken up. Mr Abdul Rauf on behalf of the judgment‑debtors has argued that the decree passed by this Court is coram non judice on the ground that the judgment‑debtor, No.1 is a part of Pakistan Army and the judgment­-debtors No. 2 is subject to the Army Act, 1952. In view of the above, it is the case of Mr. Abdul Rauf that the judgment‑debtors cannot be made liable under this execution. He refers to the case of Rasheed Ahmed v. The State PLD 1972 SC 271 and argues that the question of jurisdiction can be raised at any stage. There is no cavil to this proposition. According to him, in an unreported case of Muhammad Aslam v. Incharge National Logistic Cell and others (C. P. No. 87 of 1998), the entire law has been placed and discussed and it has been held that the individuals are bound by the Army Act. He refers to the following: ‑‑‑

“The plain reading of the above provisions of law clearly shows that the present before this forum is 'coram non judice'.”

In the case of Force Commander, Airport Security Force. Karachi and others v. Haji Muhammad Rashid and another 1996 SCMR 1614, it was observed by the apex Court at page 1629 as under: ‑‑

"It may be stated that subsection (I) of section 5 empowers the Federal Government to apply all or any provisions of the Army Act to any force raised and maintained in Pakistan under the authority of the Federal Government or a Provincial Government, whereas subsection (2) thereof lays down that on such notification being made any provisions of the Army Act so applied shall have effect in respect of persons belonging to any such force as they have effect in respect of persons subject to the Army Act holding in the Pakistan Army the same rank as or equivalent to that which the aforesaid persons hold for the time being in the said force and shall have effect in respect of person employed by or are in the service of, or are followers of, or accompany any portion‑of any such force, as they have effect in respect of person subject to the Army Act under clause (c) of subsection (1) of section 2. It may also be pointed out that subsection (3) provides that while any of the provisions of the Army Act applies to any such force, the Federal Government may, by notification, direct by what authority any jurisdiction powers or duties incidental to the operation of these provisions shall be exercised or performed in respect of that force and may suspend the operation of any other enactment for the time being applicable to that force."

In the case of Dr. Aon Muhammad Khan v. Lt.‑Gen. (Recd.) Saeed Qadir and others PLD 1987 SC 490. it was observed at page 493 as under:‑‑‑

“(xiii) 1978‑85. Chief Executive and then, from 1981 onward, Chairman, National Logistics Cell. This appointment was held by the answering respondent in addition to his duties as Q.M.G. The answering respondent created the National Logistics Cell (NLC). He did so in pursuance of a directive received by him on 23‑7‑1978. By 6‑8‑1978 the action plan prepared by the answering respondent was approved by the Federal Cabinet. The NLC successfully undertook the re‑organization of Karachi Port so as to clear 2 million tons of wheat through this period in between October, 1978 and April, 1979. The NLC moved this wheat from Karachi to the remotest corners of the country. During the last 7 years the NLC has organized the Karachi Port, built and rehabilitated hundreds of miles of roads, undertaken rapid handling of rice crop exports, built 150.000 tons of rice storage facilities, built another 150,000 tons of fertilizer storage facilities, transported fertilizer to the remotest corners of the country, moved crude oil from the oilfields throughout the country and operated and maintained the largest transport fleet in Pakistan. The NLC has also created large engineering workshop facilities; re‑organized the Lahore. Dry Port and established facilities in the country for major repairs of traction motor of locomotives for the Pakistan Railways.”

Again in the same citation at page 500, the word "logistics" has been defined as under:‑‑‑

"The word 'logistics' according to the Chambers Twentieth Century Dictionary means `the art of movement and supply of troops'. This necessarily involved the management. operation and control of mechanically propelled vehicle. Therefore logistics apparently is an allied field with the automobile I engineering."

In an unreported C. P. No. 2502 of 1995, the legal status of National Logistic Cell (NLC) was determined by a Division Bench of this Court and it was observed that the entire set‑up of National Logistic Cell (NLC) is controlled by Army Officers. The Establishment is neither commercial nor industrial. The civil man power working in National Logistic Cell (NLC) is incidentally connected with the Armed Forces.

In the case of Brigade Commander Headquarters Field Command, NLC. Karachi v. The State 1996 MLD 469, it was observed that the trial of the Army Personnel could only be held by the Military Court.

In the case of Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 Supreme Court 632, it was observed that under Article 199(3), the jurisdiction of High Court is barred and it cannot superintend the affairs of the Armed Forces.

In the case of Sh. Liaqat Hussain and others v. Federation of Pakistan and others PLD 1999 SC 504, it was observed that civil offences committed by civilians having nexus with the Armed Forces are triable by the Military Courts.

In the case of Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286, it was observed that under Article 199 for grant of relief under sub‑Article (1) thereof the relief regarding fundamental rights is included in sub‑Article (1) is clearly barred under Article 199(3) with reference to sub‑Article (1) thereof, therefore, High Court has no jurisdiction in such matters.

The decision of Apex Court in case of Federation of Pakistan and 2 others v. Khurshid Ahmed and another 1999 SCMR 664, relied upon by the learned counsel for the petitioner is of no avail to the petitioner as it also supports the contention of the respondents.

The upshot of the above discussion is that the petition is not maintainable and is misconceived. Consequently, it stands dismissed along-with listed application, with no order as to costs. However, the petitioner may exhaust his remedy before the proper forum provided under law."

It is the case of Mr. Abdul Rauf, therefore, that the judgment-­debtor No. l is also not liable. In an unreported case of Raza Enterprises v. Government of Sindh (Suit No. 1201 of 1998), a similar question had been raised by Major (Recd.) Abdul Rauf, Advocate, and similar arguments were advanced by him. Whilst distinguishing the above judgment and all that is mentioned therein, it was held that in fact the National Logistics Cell is not a part of the Pakistan Army and not controlled by them. It was further held that the NLC works for profit and gains and is therefore, a body corporate. Otherwise also, as is evident in the present case and arguments that have been led that the National Logistics Cell has insured its vehicles. This categorically shows that the NLC is capable of entering into contractual obligations in their own name. An application under Order VI1, Rule 11, C.P.C. was also filed in which all the above objections were taken. After hearing, the J.Ds. withdrew the said application and abandoned the plea. The case, therefore, of Mr. Abdul Rauf as regards in the present case is not maintainable. It has already been held that the J.Ds. are not a part of the Pakistan Army wherefor the question of applicability of Pakistan Army Act, 1952 which may bar the jurisdiction cannot be taken into account. E The judgment, passed earlier in suit has not been appealed against. It is the case of the judgment‑debtors that the judgment being coram non judice is not liable to be executed. In the case of Gul Muhammad Mir Bahar v. National Logistic Cell and 2 others 1999 CLC 2032, it has been held that this Court has jurisdiction to proceed in the matter. The relevant portions are reproduced as under: ‑‑‑

“....The second ground is that this Court has no jurisdiction in view of the rule laid down by the Honourable Supreme Court in the case of Force Commander. Airport Security Force. Karachi and others v. Haji Muhammad Rashid and another 1996 SCMR 1614. During the course of hearing, learned counsel for the defendant No.1 referred further cases in support of his contention that the jurisdiction of this Court is barred. Reliance was placed on Mrs. Shahida Zaheer Abbasi and 4 others v. President of Pakistan and 6 others PLD 1996 SC 632, Abdul Ghaffar Lakhani v. Federal Government of Pakistan and others PLD 1986 Kar. 525. Brigade Commander Headquarters Field Command N.L.C., Karachi v. The State 1996 MLD 469 and the case of Muhammad Nawaz Baloch v. President of Pakistan and 4 others 1999 MLD 359.

.......... In the case of Mrs. Shahida Zaheer Abbasi (supra) again the matter was considered in reference to the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan, 1973. While following the rule laid down in the case of Brigd. (Retd.) F. B. Ali v. The State PLD 1975 SC 506 it was held that the bar contained in Article 199, (3) of the Constitution on the powers of High Court for exercising writ jurisdiction is not absolute in nature and that it could be exercised in the cases, namely, where the impugned action is mala tide or without jurisdiction or coram non judice. Again, in that case, section 9 of the Code of Civil Procedure, 1908 in reference to Act, 1855 was not considered. Therefore, the rule laid down in the case of Mrs. Shahida Zaheer Abbasi is of no help to Mr. Abdul Raul. No provision of any statute or enactment or any judicial precedent was cited at bar which may indicate that a Civil Court has no jurisdiction to entertain a claim under the Fatal Accidents Act, 1855 against an Army Organisation.

1. In the case of Abdul Ghaffar Lakhani (supra), one of the question involved was in reference to the Constitutional jurisdiction to be exercised by the High Court under Article 199 of the Constitution. 1973; the rule laid down in the case of F. B. Ali was reiterated. The case of Muhammad Nawaz Baloch also refers to the jurisdiction of High Court under Article 199. In the instant case, it is yet to be established by the defendant No.2 that the Tribunal constituted for his trial was constituted under some special law barring jurisdiction of the ordinary Civil Court and that such Tribunal was lawfully constituted and the trial conducted was concluded in a lawful manner exonerating the said defendant from the delegations. Only under such circumstances ouster of jurisdiction is completed. No material was placed to show that the jurisdiction of this Court is ousted in the aforesaid manner. I am fortified in my view by the rule laid down by the Honour-able Supreme Court to the case Zafarul Ahsan v. Republic of Pakistan PLD 1960 SC 113. Section 9 of the C. P. C., indeed, bars a suit which is even impliedly barred. There is no element of impliedness in this case In the case of Zafarul Ahsan (supra) the appellant was retired from service for misconduct by the President under sub‑clause (b) of clause (5) to Article 6 of the Laws (Continuance in Force) Order, 1958 against which the appellant moved High Court of West Pakistan through writ petition against the President's Order which was dismissed on the ground that the Court had no Jurisdiction to consider the merits of the case The appeal was dismissed with no order as to cost but following observation was made by the Full Bench of Honourable Supreme Court while defining as to how the jurisdiction of Court is ousted:‑‑‑

“If a statute provides that an order made by an authority action under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Court is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omissions or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of law. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and to this sub‑continent be treated as an order under the statute.”

1. The objection to the maintainability of these suits were raised for the first time in these proceedings by the learned counsel appearing for the National Logistic Cell. In previous suits which were decreed against the same defendant and wherein the same counsel was appearing, such objections were not raised. Therefore, I have dealt in detail with the respective submission of both the learned counsel. Mr. Nasir Maqsood has drawn my attention to the case Rukhsana Parveen Nazir v. National Logistic Cell through Commander and 2 others 1995 MLD 633 and Mai Nooran v. National Logistic Cell, Ministry of Defence, Government of Pakistan through its Commander and 2 others 1995 CLC 1969. In all the said three cases, judgments/decrees were passed against one of the same defendant, now, the defendant No. l in the present suits. I am told that the appeals filed against these reported cases were also rejected by the Division Benches of this Court. Even in the case Syed Ghaffar Hussain and 3 others v. The Commander (Commanding Officer) Headquarters National Logistic Cell, Karachi and 3 others 1994 MLD 2010, the Commander/respondent himself appeared but he did not raise any objection to the maintainability of that suit ........”

7‑A. In a case being Execution No. 153 of 2000 filed by the same Gul Muhammad Mir Bahar (being an execution of the judgment of Gul Muhammad Mir Bahar v. National Logistic Cell and 2 others 1999 CLC 2032) referred hereinabove it has been ordered:‑‑

......In this view of the matter execution application is allowed and it is ordered that the assets of the judgment‑debtor as mentioned in the schedule of the properties annexed with this execution application be attached by the Nazir of this Court and thereafter proceedings for sale of the said articles be carried out The sale proceeds be deposited in Court and same be used in the first instance for the satisfaction of the decretal amount. Orders accordingly Nazir may seek assistance of the Law Enforcement Agency, if felt necessary under the circumstances."

In another case being Execution No. 165 of 2000 filed by one Aisha Bibi against NLC, the following order was passed: ‑‑‑

“Judgment and decree was passed on 20‑I1‑1995, execution was filed on 13‑1‑2000, which apparently was served on the judgment‑debtor No. 1, against whom it is sought to be executed, service was effected on 3‑1‑2001 but no objection appears to have been filed as till to-date. The execution is allowed. Nazir is accordingly directed to attach the property mentioned in the schedule attached to the execution application, on the pointation of the decree‑holder. Nazir may seek assistance of the law enforcement agency if felt necessary under the circumstances.”

1. In view of the above, the objections taken by Mr. Abdul Rauf are not well founded. The Execution Application is allowed. I direct the Nazir of this Court to proceed to attach the articles, goods, motor vehicles or other such items as may have been mentioned in the Execution Application for the purposes of satisfaction of the decretal amount. In the event upon attachment the said amount is not paid within 30 days, the Nazir shall proceed to sell the said movable items and deposit the sale proceeds in Court for the purposes of satisfaction of the decretal amount. In the event of the refusal of the judgment‑debtors to allow attachment, the Nazir may seek assistance of the law enforcement agency if felt necessary under the circumstances.

Q.M.H./M.A.K./I‑59/K

Execution petition allowed.

2002 C L C 1620

[Karachi]

Before Sarmad Jalal Osmany, J

UME AIMAN and 43 others‑‑‑Plaintiffs

Versus

MUHAMMAD YOUSUF and 10 others‑‑‑‑Defendants

Suit No.300 of 1988 and Civil Miscellaneous Application No.62511 of 1991m decided on 25th May, 2001.

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

‑‑‑‑S. 11‑‑‑Dispute as to ownership of the property‑‑-Principles of res judicata‑‑‑Applicability‑‑‑Essence of S.11, C.P.C.‑‑‑Where any matter directly and substantially in issue between the two parties in the latter suit had been decided in a former suit then the latter suit would be barred‑‑­Provision of Expin. IV to S.11, C.P:C. provided for the doctrine of constructive res judicata viz. that where any matter which might or ought to have been made a ground for defence or attack in the previous suit shall be deemed to be a matter in issue in the latter suit‑‑‑Section 11, C.P.C. essentially postulated that the parties litigating against each other in the present suit must have been arrayed against each other in the past suit‑‑‑Record and facts, in the present case. showed that the parties had never litigated in any adverse capacity previously except once, which in any event did not result in any final adjudication of their rights and obligations as the defendants' application was dismissed on the point of jurisdiction‑‑‑Parties' rights and obligations as regards the suit property viz. as to who were the actual owners thereof in circumstances had not been determined in any forum whatsoever‑‑‑Ingredients of S.11, C. P.C. , therefore, were not attracted to the facts of the matter.

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

‑‑‑‑O VII, R. 11‑‑‑Rejection of plaint‑‑‑Considerations‑‑‑Even the contents of written statement/affidavits, in appropriate cases can be looked into when considering an application under O.V11, R.11, C.P.C.

Ghulam Abbas v. Syed Abid Hussain Shah and 6 others 1994 MLD 2345; Muhammad Zaman v. Tariq Mahmood and 28 others 1994 MLD 207; Muhammad Yaqoob and 63 others v. The Province of Punjab through Home Secretary and another 1993 MLD 2419; Abdul Latif v. Manzoor Ahmed 1993 MLD 177 and Muhammad Buta v. Habib Ahmed PLD 1985 SC 153 ref.

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

‑‑‑‑S. 11‑Res judicata, principle of‑‑‑Applicability‑‑‑Scope‑‑‑Said principle can be applied to proceedings other than suits viz. Constitutional petitions, rent applications and cases before the Settlement Authorities.

Wali Muhammad v. Mst. Meena and others 1994 SCMR 2243: Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146; Asif Jah Siddiqi v. Government of Sindh PLD 1983 SC 46; Muhammad Anwar v. Messrs Associated Trading Co. Ltd. and 2 others PLD 1987 Kar. 535; Rahat Mahmood v. Tariq Rashid and another PLD 1993 Kar. 648 and Pir Bukhsh representing by his L.Rs. and others v. The Chairman. Allotment Committee and others PLD 1987 SC 145 ref.

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

‑‑‑‑S. 11‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 114‑‑‑"Principle of res judicata" and "principle of estoppel"‑‑‑ Distinction‑‑‑Principle of estoppel cannot be equated to the principle of res judicata as the two principles are entirely separate and distinct and operate within their own particular spheres viz. estoppel being a weapon of defence in trial and res judicata being a principle on which a party can be non‑suited altogether.

A.A. Fazeel for Plaintiffs.

Aijaz Ahmed for Defendants.

Dates of hearing: 5th, 18th, 25th May; 1st, 4th, June: 10th. 13th, 24th August, 1999; 8th, 14th March and 2nd May, 2001.

ORDER

This is an application under Order 7. rule 11 filed on behalf of the defendants whereby it is prayed inter alia that since the issues raised in the matter, viz. plaintiffs' claims to the suit property etc. have already been decided by various forums including the judgments of the learned Custodian, Evacuee Property, Sindh, dated 27th June, 1974, of this Court in C.P. 1429 of 1974, dated 20‑6‑1984 and of the Honour-able Supreme Court in C.As. Nos.251‑255/K of 1986, dated 20‑12‑1990 in favour of the defendants and in the presence of the plaintiffs the suit be dismissed as barred under section 11 of the C.P.C. It is also prayed that the suit being time‑barred is also fit for dismissal on this ground too.

1. The brief facts of the matter as disclosed in the plaint are that the plaintiffs are the legal heirs of one late Haji Ghulam Auliya, who was a landlord residing at Delhi in pre‑Partition India. He was survived by three sons, late Haji Rasheeduddin, Lat Haji Salahuddin and Late Haji Fariduddin and also three daughters late Mst. Noor Jehan, late Mst. Ahmed Bi and Mst. Qamar Jehan. The plaintiffs Nos. l to 43 are the sons and daughters of the abovementioned deceased sons and daughters of Haji Ghulam Au liya, whereas the plaintiff No.44 Mst. Qamar Jehan is the only surviving daughter of Haji Ghulam Auliya and all of them are thus, entitled to inherit from the estate of the deceased. The defendants Nos. l to 9 are the legal heirs/representatives of late Haji Muhammad Ishaq whose sister was married to late Haji Ghulam Auliya.

2. The suit property which belonged to late Haji Ghulam Auliya was located at Delhi and admeasured approximately 11,00,000 sq. yds. After the family migrated to Pakistan, the predecessors‑in‑interest of plaintiffs Nos. l to 43 as well as Mst. Qamar Jehan, plaintiff No.44 filed their respective claims for all the properties of Haji Ghulam Auliya including the properties which were Benami and owned as such by Haji Muhammad Ishaque. Haji Muhammad Ishaque also filed a separate claim for his own properties left behind by him in India which excluded the properties ostensibly owned by him and whose real owner was Haji Ghulam Auliya. The, Claim Commissioner vide order, dated 27‑8‑1959 and 30‑12‑1959 verified the claims in favour of the predecessors‑in-­interest of the plaintiffs and Haji Muhammad Ishaque, copies of such orders are filed as Annexures "E" and "F" to the plaint:

3. Haji Muhammad Ishaq persued the matter of allocation of Haji Ghulam Auliya's claims in Pakistan and succeeded in obtaining the Karachi Properties in his own name as Benamidar vide Custodian, Evacuee Properties Order of 27th June, 1974 (Annexure "G" to the plaint) which was against 4,65,000 sq. yds. of the property left behind in India. These were obtained in exchange from Hindu owners for the property in India. Thereafter the predecessors‑in‑interest of the plaintiffs filed an application for substitution of their names for the name of Haji Muhammad Ishaque's legal heirs which was granted by the Custodian on 26‑7‑1974 per Annexure "H" to the plaint Similarly 5.00,000 sq. yds. of the property was given in exchange in Lahore whereas for the remaining land viz. 1,35,000 a claim was filed by the legal heirs of late Haji Ghulam Auliya through Haji Muhammad Ishaque. All these properties were held Benami by the latter.

4. Thereafter, the predecessor‑in‑interest of the plaintiffs tiled a Civil Suit bearing No.29 of 1955 in Lahore against Haji Muhammad Ishaq for a declaration praying that the real ownership of the Lahore property rested with Haji Ghulam Auliya and Haji Muhammad Ishaq was only the ostensible owner. Haji Muhammad Ishaq admitted the claims of Haji Ghulam Auliya's legal heirs and accepted that he was the ostensible owner of the said property on which basis the suit wag decreed. The predecessor of the plaintiffs Nos.1 to 43 as well as Mst. Qamer Jehan received their full shares from the Lahore property.

5. It is also stated that the plaintiffs had not been able to obtain the possession of the Karachi properties since litigation is still pending in the Supreme Court in between themselves and the occupants of the property. However, the Government had acquired some of these properties for the construction of Saddar Cooperative Market on payment of compensation in the sum of Rs.10,25,762.50 which the plaintiffs also claim in the suit including interest etc. The plaintiffs' predecessors‑in‑interest filed an application to be joined as parties in C.P. 1429 of 1974 which was pending in between the occupants/allottees of the Karachi properties and Haji Muhammad Ishque on the basis that they were the rightful owner of the properties. This was eventually allowed and so also C.P. 1429 of 1974 dismissed in favour of the parties to the suit. The occupants/ allottees then filed an appeal before the Honourable Supreme Couri which is still pending.

6. That up to 1984 neither late Haji Muhammad Ishaque nor defendants Nos. 1 to 9 raised any objection as to the real ownership of the suit property of Haji Ghulam Auliya but on 13‑10‑1984 a frivolous application was moved by the defendants Nos. l to 9 before the Custodian, Evacuee Property, Sindh in R.A. 52 of 1974 from which it appeared that the defendants Nos. l to 9 were questioning the right, title and interest of the plaintiffs in the said property and consequently there was an apprehension that they may also claim the sum of Rs.10,25,762.50 along-with interest lying with the Settlement Department, Government of Pakistan and hence the suit. It is specifically pleaded that the cause of action for filing of the suit accrued to the plaintiffs when the above-said application was moved by the defendants Nos. l to 9 in the Court of Custodian of Evacuee Property, Sindh. A copy of the application is filed as Annexure "L". Consequently it is prayed that (his Court declare the plaintiffs to be the successors‑in‑interest of the properties shown in Schedule "A" as real owners of which HAP Muhammad Ishque was an ostensible owner only and further that the defendants Nos. l to 9 have no right, title or interest therein. So also that the plaintiffs are entitled to recover the amount of Rs.10.25.762.50 with interest which is lying with the Government as compensation and that defendants Nos. l to 9 have no right, title or interest in the said amount. Similarly, it is further prayed that defendants Nos. l to 9 be permanently restrained from claiming ownership of the suit property or making any claim to the above-said compensation amount and also a decree in the said amount be passed in favour of the plaintiff and as against the Government of Sindh and defendants Nos. 1 to 9.

7. On the basis of the above pleadings Mr. Aijaz Ahmed, learned counsel for the defendants has submitted that the documents filed along-with the plaint would adequately establish that all along right from 1952 onwards in all matters pertaining to the properties claimed in the suit by the plaintiffs, Haji Muhammad Ishaq has been shown as the real owner and in fact he was pursuing the claims in this capacity. In this regard he has referred to the application filed before the Deputy Custodian, Evacuee Properties by Haji Muhammad Ishaq regarding the suit properties which was rejected on 22‑11‑1952 and the order of the Custodian of the same date a copy of which has been filed along-with the written statement. Similarly learned counsel has referred to the appeal filed before the Additional Custodian which was also rejected on 28‑4‑1953 as well as the revision filed before the Custodian which was again rejected on 21‑12‑1954 as per copies of these orders filed along-with the written statement. Again the matter was referred to the Central Government and was rejected on 14‑12‑1956 and finally by the Custodian on 2‑3‑1957 as per copies of such orders contained in the written statement.

8. Thereafter, Haji Muhammad Ishaq filed Writ Petition No. 131 of 1957 before the West Pakistan High Court which was dismissed on 14‑6‑1958. Upon L.P.A. No.26 of 1.958 being filed against such order of dismissal the matter was referred back to the Custodian who in turn remanded it to the Additional Custodian before whom detailed evidence was recorded including statement of Haji Muhammad Ishaq as well as late Haji Salahuddin and late Haji Hafeezuddin and finally the exchange deed was confirmed in R.A. No.52 of 1974 on 27‑6‑1974 as per order of the Additional Custodian. Then as per learned counsel some of the tenants of the suit property filed C. P. No. 1429 of 1974 in order to ventilate their grievances in which proceedings the plaintiffs tiled an application under Order 1, rule 10 on the basis that they are the real owners as per order, dated 26‑71974 in R.A. No.52 of 1974 which was allowed. The said writ petition was dismissed on 20‑6‑1984 where-after appeals were filed in the Honourable Supreme Court being Nos.251 and 255‑K of 1986 in which the plaintiffs also filed an application under Order 1, rule 10 which was granted subject to all just exceptions. Thereafter, the defendants filed an application on 13‑10‑1984 in R. A. No.52 of 1974 to set aside the order, dated 26‑7‑1974, which was dismissed on 26‑,1‑1986 for the reason that since Evacuee Property Laws have been repealed no further cause of action remained with the defendants.

9. In the background of this history of litigation between the parties learned counsel for the defendants has urged firstly that the cause of action accrued to the plaintiffs to file suit in 1951 and consequently the present suit filed in 1988 is patently time‑barred under Article 120 of the First Schedule of the Limitation Act which provides for a period of six years for filing of suits such as the present one counted from the date the right to sue accrued. In this connection he has urged that besides the plaint the contents of the written statement should also be looked into in order to do complete justice between the parties. For this proposition he has relied upon: ‑‑

(1) Ghulam Abbas v. Syed Abid Hussain Shah and 6 others 1994 MLD 2345.

(2) Muhammad Zaman v. Tariq Mahmood and 28 others 1994 MLD 207.

(3) Muhammad Yaqoob and 63 others v. The Province of Punjab through Home Secretary and another 1993 MLD 2419, (4) Abdul Latif v. Manzoor Ahmed 1993 MLD 177 and

(5) Muhammad Buta v. Habib Ahmed PLD 1985 SC 153.

1. Learned counsel has also argued that the suit is barred under section 11 of the C.P.C. under the doctrine of constructive res judicata. In this regard learned counsel has referred to the statement on oath by one of the plaintiffs a copy of which has been filed along-with the written statement admitting that Haji Muhammad Ishaq is the actual owner. So also learned counsel has referred to the rejoinder filed on behalf of the plaintiffs to the counter‑affidavit in C.M.A. No.422 of 1990 whereby it is stated that Haji Muhammad Ishaq was only Benami and Haji Ghulam Auliya was the owner which meant that the latter had expired since the properties were purchased in 1946. He has also submitted that the controversy in suit has been finally decided by this Court in C. P. No.1429 of 1974 and by the Honourable Supreme Court in C.As.

Nos.251 and 255‑K of 1986 and hence cannot be re‑opened. In support of his submissions learned counsel has relied upon:‑‑

(1) Wali Muhammad v. Mst. Meena and others 1994 SCMR 2243, (2) Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146, (3) Asif Jah Siddiqi v. Government of Sindh PLD 1983 SC 46, (4) Muhammad Anwar v. Messrs Associated Trading Co. Ltd. and 2 others PLD 1987 Kar. 535, (5) Rahat Mahmood v. Tariq Rashid and another PLD 1993 Kar. 648 and

(6) Pir Bakhsh representing by his L.Rs. and others v. The Chairman Allotment Committee and others PLD 1987 SC 145.

1. In rebuttal Mr. Ali Ahmed Fazeel. learned counsel for the plaintiffs, has submitted that the suit had been filed, inter alia, for the declaration that the real owners of the suit property are the plaintiffs as against the defendants, who are merely the ostensible owners. In this regard he has referred to Annexure "E" to the plaint viz. verification order issued by the Deputy Commissioner (Claims) whereby the Karachi and Lahore Properties were received and exchanged by the defendants for the properties left behind by late Haji Ghulam Auliya in Delhi. This confirmation was upheld by this Court in C. P. No. 1429 of 1974 per order, dated 20‑6‑1984. Similarly, the Honourable Supreme Court upheld the High Court's order on 20‑12‑1990 and so also the review tiled against such orders was dismissed on 30‑5‑1991. Learned counsel has further submitted that on 25‑I‑1955 Suit No.29 of 1955 was filed before the Civil Court at Lahore by the legal heirs of late Haji Ghulam Auliya regarding the ownership of the Lahore Property and in the written statement filed by Haji Ghulam Ishaque, the contents of the plaint were admitted and consequently, the suit was decreed in favour of the legal heirs of late Haji Ghulam Auliya as per copy of the decree. Learned counsel has also referred to Annexure "G" to the plaint, copy of which appears at page 81 of the file whereby the Custodian Department has confirmed the Karachi properties in favour of Haji Ghulam Auliya. He also referred to a copy of C.M.A. 508 of 1976 filed in C. P. No. 1429 of 1974 whereby the legal heirs of Haji Ghulam Auliya had sought to be made a party to the petition, which was not objected to by the defendants and such C.M.A. was allowed vide order, dated 6‑11‑1977. Finally, learned counsel has referred to para. 12 of the plaint whereby it has been stated that up to 13‑10‑1984 the defendants have always admitted that Haji Ghulam Auliya was the real owner of the suit property but on that date they, for the first time, challenged this fact and hence the suit. Consequently, learned counsel has submitted that there is no issue of res judicata at all whether constructive or otherwise and similarly as the cause of action accrued to the plaintiffs in October, 1984, the suit was well within time having been filed in 1988.

2. As regards the issue of limitation learned counsel has submitted that the law is very well‑settled i.e., only the plaint has to be looked into and the Court has to see that where all the allegations in it are assumed to be true still the plaintiff would not be entitled to the relief claimed. In support of this submission learned counsel has relied upon: ‑‑

(1) Muhammad Ahmad Butt v: Lahore Development Authority PLD 1981 Lah. 153, (2) K.D.A. through its Secretary v. Evacuee Trust Board through its Administrative Evacuee Trust Property at Karachi and 5 others PLD 1984 Kar. 34, (3) Muhammad Rashid Bhatti v. K.D.A. through its Secretary and another PLD 1986 Kar. 130, (4) Ali Ahmad v. Mst. Ghulam Zohra PLD 1987 Quetta 189, (5) Nizar Ali v. Nooriabad Cooperative Housing Society Ltd. And others PLD 1987 Kar. 767 and

(6) Messrs H.B.L. v. Messrs Central Cotton Mills Ltd. 1988 CLC 474.

1. Learned counsel has distinguished Muhammad Buta v. Habib Ahmed (supra) on the basis that this case, which was cited by the learned counsel for the defendants is not applicable to the facts of the present case.

2. In reply Mr. Ejaz Ahmed appearing for the plaintiffs has asserted ‑that the .basis of the Benami transaction as pleaded by the plaintiffs is that Haji Ghulam Auliya was not an agriculturist and thus, the suit property was purchased Benami in the name of Haji Ghulam Ishaque as he was an agriculturist. This, however, is not borne out from the facts of the case as both are brothers and, therefore, why one is an agriculturist and the other is not.

3. I have heard both learned counsel My conclusions are as follows:‑‑

4. It may be seen that as far as the issue of res judicata, is concerned, the modalities thereof are provided under section l I of the C. P. C. which are as follows: ---‑

Res judicata.‑‑‑ No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.‑‑‑ The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto; , Explanation II.‑‑‑ For the purposes of the section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.‑‑‑ The matter above‑referred to must in the former suit have been alleged by one party and either denied or admitted expressly or impliedly, by the other.

Explanation IV.‑‑‑ Any matter which might and ought to have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.‑‑‑ Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI.‑‑‑ Where persons litigate bona fide in respect of a public right or of a private right claimed in common fir themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating.

1. It would thus be seen that the essence of section 11 is that where any matter directly and substantially in issue between two parties in the present suit has been decided in a former suit than the present suit would be barred. Explanation IV to section 11 provides for the doctrine of constructive res judicata viz. that where any matter which might or ought A to have been made a ground of defence or attack in the previous suit shall be deemed to be a matter in issue in the later suit. It would thus be seen that essentially section 11 postulates that the parties litigating against each other in the present suit must have been arrayed against each other in the further suit.

2. The facts of the present case as well as from the documents filed would disclose that the parties have never before litigated in any adverse capacity. In this regard it could be seen that the predecessors‑in‑interest of the parties viz. late Haji Salahuddin, late Haji Rashiduddin, late Haji Fariduddein. Late Mst. Noor Jehan, late Mst. Ahmad Bi, and Mst. Qamar Jehan (the legal heirs of late Haji Ghulam Auliya) and late Haji Muhammad Ishaq had filed their respective claims before the Deputy Claims Commissioner, Karachi and Lahore respectively vide Annexures "E" and "F" to the plaint and the same were verified and passed in the amount of Rs.29,04,200 and Rs.1,10,880. It is also apparent from a perusal of Annexure "E" that the property claimed by the legal heirs of late Haji Ghulam Auliya was a double‑storeyed residential building with a covered area of 1200 sq. yds. having 22 to 25 rooms along-with servant quarters located at Mouza Kahrera along-with some land attached to the said building situated within the Municipal limits of the city of Delhi, i.e. Unit No. 1. So also there was an additional claim for open land having an area of 2,69,000 sq. yds. being Unit No.2. As far as the claim against Unit No.2 is concerned, the verification order Annexure "E" to the plaint clearly stipulates that late Haji Muhammad Ishaq and late Haji Salahuddin were both Benamidars and the land itself actually belonged to late Haji Ghulam Auliya. Per Annexure "F" to the plaint the property claimed by late Haji Muhammad Ishaq was also double‑storeyed hosue of 200 sq. yds. containing about 20 rooms of all sizes and description along-with all the amenities.

3. It would further be seen that after verification oh said claim the question of compensation/allotment of land in Pakistan was pursued by late Haji Muhammad Ishaq being the elder of the family viz. brother­in‑law of late Haji Ghulam Auliya and finally as far as the properties of late Haji Ghulam Auliya are concerned, the legal heirs were enable to obtain the order from the Custodian Evacuee Property, Sindh in R.A. No.52 of 1974 dated 27‑6‑1974, whereby the said revision was allowed and the Karachi properties being two open plots of land at Victorte Road and two bungalows along-with a sum of Rs.75,000 was confirmed in the name of the defendants. In the order itself the exchange deed between late Haji Muhammad Ishaq and Bhai Partab Dialdas and others whereby the Delhi properties were exchanged with the Karachi properties was also upheld and so also it was observed in the said order that the predecessor ­in‑interest of the defendants late Haji Muhammad Ishaq being an ostensible owner of the properties was the Benamidar of late Haji Ghulam Auliya in respect of the properties which had been exchanged viz. located in Delhi. A copy of the order has been filed as Annexure "G" to the plaint. Finally as per Annexure "H" to the plaint, which is a copy of the order, dated 26‑7‑1974, the names of the legal heirs of late Haji Ghulam Auliya viz. the predcessors‑in‑interest of the plaintiffs were substituted for the names of the defendants on the original application filed under sections 16 and 17 of the Pakistan (Administration Evacuee Property Ordinance, 1949).

4. Thereafter, in subsequent litigation in between the occupants of the Karachi property and the predecessors‑in‑interest of the plaintiffs and the defendants viz. C.P. No.1429 of 1974 filed before this Court, the parties in the suit were arrayed as respondents against petitioners who claimed a portion of the Karachi property. In the said petition also the Benami transaction between late. Haji Ghulam Auliya and late Haji Ghulam Ishaq as regards the Delhi property was recognized. It is also significant to note that as far as the Lahore properties were concerned which were obtained vide deed of exchange between the Nairang Bank and late Haji Ghulam Ishaq, the latter ultimately admitted the Benami nature of the transaction between himself and late Haji Ghulam Auliya and accordingly a consent decree was passed whereby the predecessors­in‑interest of the plaintiffs were given the Lahore properties. Finally it would be seen that it was only in 1984 that the defendant challenged the order, dated 26‑7‑1974, passed in R.A. No.52 of 1974 whereby the Custodian Evacuee Property, Sindh had substituted the names of the defendants with that of the predecessors‑in‑interest of the plaintiff which was disposed off vide order, dated 26‑1‑1986 by the Custodian Evacuee Property, Sindh on the basis that after repealing of Pakistan (Administration of Evacuee Property) Act, 1957 he was left with no jurisdiction to decide the matter. In fact it is the plaintiffs' case that all along the defendants and their predecessor‑in‑interest late Haji Ghulam Ishaq had admitted that the latter was the Benamidar of late Haji Ghulam Auliya and it was only in October, 1984, when the defendants had filed the application before the Custodian did it dawn upon the plaintiffs that the defendants were claiming the Karachi properties in their own right, upon which cause of action the suit was filed in 1988.

5. From a perusal of the abovementioned documentation/orders passed by the various forums, I am of the opinion that the ingredients of section 11 of the C.P.C. are not at ail attracted to the facts of the matter as the parties have never litigated in any adverse capacity previously other than in R. A., No.52 of 1974 for the first time in October, 1984 which in any event did not result in any final adjudication of their rights and obligation as the defendant's application was dismissed on the jurisdictional point. Consequently it cannot be said I that the parties rights and obligations as regards the suit property, viz as to who are the actual owners thereof have been determined in any forum whatsoever.

6. As regards the cases cited at the Bar by learned counsel for the defendants, there is no cavil with the same as it is settled law that in appropriate cases even the contents of the written statement/affidavits may be looked into when considering applications under Order V11, rule C 11. So also the principles of the res judicata may be applied to proceedings other than suits viz. Constitutional petitions, rent D applications and cases before the Settlement Authorities. However, learned counsel has not been able to cite any case whereby res jirdicata has made applicable to a matter where the parties were not arraigned against each others. In this respect, the final order passed in C. P. 1429 of 1974, dated 20‑6‑1984 nowhere decides the Benami nature of the transaction between the parties which is the crux of the matter and on which the plaintiffs cause of action is based. In fact as adverted to earlier the order only recognizes late Haji Ghulam Auliya as the real owner of the suit property on the basis of which the exchange deed between the Hindu owners of the suit property and late Haji Muhammad Ishaque was upheld and the petition, which challenged such deed, dismissed. Similarly in C. As. Nos. 251‑K to 255‑K of 1986 which had been filed against the dismissal order. the Honourable Supreme Court while dismissing these petitions also recognize the Benami transaction between late Haji Ghulam Aulyia and late Haji Muhammad Ishaque. It may be that in some of the proceedings before the Settlement Authorities, the predecessors‑in‑interest of the plaintiff may have admitted that the real owner of the suit property was Haji Ghulam Ishaque. However, at the most, then the plaintiffs could be estopped from pleading otherwise on the doctrine of estoppel. This of course would depend upon whether or not estoppel could be established by the defendants by leading evidence and even so this can never be equated to res judicata as the two principles are entirely separate and distinct and operate within their own E particular spheres viz. estoppel being a weapon of defence in a trial and res judicata being a principle on which a party can be non‑suited altogether.

7. As far as the issue of limitation is concerned, per Article 120 of the Limitation Act the time prescribed for filing the suit is six years counted from the date the right to sue accrued. It would be seen that as per the averments contained in the plaint the right to sue accrued to the plaintiffs in October, 1988 when the plaintiffs had moved an application before the Custodian praying that the earlier order, dated 22‑7‑1974 be recalled and it is specifically urged that it was on this date when for the first time the defendants ever laid claim to the suit property in their own personal right. Consequently in my opinion, prima facie, at this stage it appears that the suit is within time. However, as the issue of limitation is in the circumstances of the case a mixed issue of fact and law it would be framed as an issue when the same are struck by this Court and decided along-with the other issues.

8. The foregoing are the reasons for the dismissal of this application vide a short order, dated 17‑5‑2001. As this is an old matter and pertains to a family dispute, in the interest of justice, it is further ordered that the same shall be heard and decided within six months after framing of the issues. The parties would be free to nominate a Commissioner for recording evidence in order to expedite the proceedings.

Order accordingly.

M.B.A./U‑24/K

Order accordingly.

2002 C L C 1714

[Karachi]

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

AMIN TEXTILE MILLS

and others‑‑‑Petitioners

Versus

FEDERATION OF PAKISTAN

and others‑‑‑‑Respondents

Constitutional Petition No.D‑1405 of 1998, decided on 22nd December, 2000.

(a) Central Excises Act (I of 1944)‑‑‑

‑‑‑‑Ss. 2(19)(20), 3 & First Sched.‑‑‑Constitution of Pakistan (1973), Art.279 & Fourth Sched:, Entry 44‑‑‑Expressions "excisable goods" and "excisable services"‑‑‑Definition of such expressions as given in S.2(19) & (20) of the Act‑‑‑Scope‑‑‑Term "services" has to be read as part of Entry 44 of Fourth Sched. of the Constitution as per force of the judgment of Supreme Court reported as 1993 SCMR 1342‑‑‑No guiding definition of the term "services" is given in the Act, except that whatever is mentioned in the Schedule is excisable services‑‑‑Definition clause in the Act cannot be interpreted to bring within the tax net any subject-­matter by merely mentioning same in the Schedule, even if the same by no stretch of imagination be termed as "goods" or 'services" ‑‑‑While looking from the standpoint of interpretation of statutes or from the angle of interpretation of legislative entries in the Constitution the ordinary plain and grammatical meaning of the words will have to be seen‑‑‑Courts have to look whether in pith and substance the subject‑matter of levy in question comes within the ambit of Constitutional entry‑‑‑Courts have to give a very liberal and stretched connotation to Constitutional entries and in pith and substance, the ordinary, grammatical and literal meaning of the terms will have to be seen.

Central Insurance v. C.B.R 1993 SCMR 1232; C.I.T. v. Noor Hussain PLD 1964 SC 657; Madras v. Gammon AIR 1958 SC 560; Zaman Textile Mills Limited v. Central Board of Revenue PLD 1993 SC 305; Molasses Trading v. Federation of Pakistan 1993 SCMR 1905; C.I.T. v. Olympia 1987 PTD 739; Mehran Associate v. C.I.T. 1993 SCMR 274 1993 PTD 69; South Behar Sugar Mills Ltd. v. Union of India AIR 1968 SC 922; Abdul Rahim v. U.B.L. PLD 1997 Kar. 62; Shamroz Khan v. Muhammad Amin PLD 1978 SC 89; Hirjina v. Islamic Republic of Pakistan 1993 SCMR 1342; P.I.D.C. v. Federation of Pakistan 1992 SCMR 891; C.I.T. v. S.K. & F 1991 PTD 999 = 1991 SCMR 2374; Tolaram v. State of Bombay AIR 1954 SC 496; State of Madras v. Chitturi AIR 1957 AP 675; Berger v. Indemnity (1900) 2 QB 348; Brett v. Rajers (1897) 1 QB 525; Lord Glanely v. Whightman (1933) AC 618; (1949) 1 All ER 865 (HL); Excise and Taxation Officer v. Burma Shell 1993 SCMR 338; Buxa Dooars v. State of West Bengal (1989) 3 SCC 211; Gavin Saran v. C.S.T. (1985) 155 ITR 144 (SC); Ghulam Hyder Shah v. Chief Land Commissioner 1983 CLC 1585; Muhammad Abdullah v. Government of Pakistan PLD 1992 Kar. 266; C.I.T. v. Siemens PLD 1991 SC 368; Province of Punjab v. Amin Jan PLD 1994 SC 141; Moopil Nayer's case (1961) 3 SCR 77; I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Inam‑ur‑Rehman v. Federation of Pakistan 1992 SCMR 563; Government of Pakistan v. Hashwam Hotel Ltd. PLD 1990 SC 68 Whitney v. Commissioners of Inland Revenue (1924‑26) 10 TC 88; Rustam F. Cowasjee v. C.B.R. 1985 PTD 529; Government of Pakistan v. Mardan Industries 1988 SCMR 410; Chief Land Commissioner v. Gulam Hyder Shah 1988 SCMR 715; Mercantile Fire v. I.T.O. 1989 PTD 221; Collector of Central Excise v. Azizuddtn PLD 1970 SC 439; Rachna Chemical Industries v. Government of Pakistan 1991 PTD 1; Province of West Pakistan v. Din Muhammad PLD 1964 SC 21; Agriculture Income Tax v. BWM Abdul Rehman 1973 SCMR 445; A&B Food Industries v. C.I.T. 1992 SCMR 662; Province of East Pakistan v. Sirajul Patwari PLD 1966 SC 854; Multi Line Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Haffaz Seamless Pipe v. Sui Northern Gas 1998 CLC 1890; Elahi Cotton v. Federation of Pakistan PLD 1997 SC 582; Assistant Commissioner v. Buckingham (1970) 75 ITR 603; Elel Hotels v. Union of India AIR 1990 SC 1664, Nawabzada Muhammad Amir Khan v. Controller of Estate Duty PLD 1961 SC 190; Don Basco v. Assistant Director PLD 1989 SC 128; Darya Khan v. C.B.R. 1995 MLD 1737; Amin Soap Factory v. Government of Pakistan PLD 1976 SC 277; Collector of Central Excise v. Azizuddin PLD 1970 SC 430; . Al‑Samrez v. Federation of Pakistan 1986 SCMR 1917; Army Welfare Sugar Mills v. Federation of Pakistan 1992 SCMR 1652; Government of Pakistan v. Muhammad Ashraf PLD 1993 SC 176; R.K. Garg v. Union of India (1982) 133 ITR 239; Avinder v. State of Punjab, (1979) 1 SCC 137; Madurai District Cooperative v. 3rd ITO AIR 1975 SC 2016; PIDC v. Federation of Pakistan 1992 SCMR 891; United Provinces v. Mst. Atiqua Begum AIR 1941 FC 16; Navin Chandra Mafatlal v. C.I.T. 26 ITR 758; Bisvil Spinners v. Superintendent Central Excise PLD 1988 SC 370; Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others PLD 1991 SC 546; Ram Nawas Guppy and others v. State of Haryana through Secretary Local Self Government Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916; Colony Sarhad Textile Mills Ltd., Nowshera v. Superintendent Central Excise and Land Customs, Muhammad Younus v. Central Board of Revenue, Government of Pakistan and others PLD 1964 SC 113; Mondi's Refreshment Room and Bar, Karachi v. Islamic Republic of Pakistan and another PLD 1983 Kar. 214; Messrs Abdul Wajid, Abdul Majid v. Government of Pakistan and others 1993 SCMR 18; C.I.T. v. Noor Hussain PLD 1964 SC 657; State of Madras v. Garrission PLD 1958 SC 560 and C.I.T. v. Olympia 1987 PTD 739 ref.

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

‑‑‑‑Ss. 5 & 7‑‑‑Central Excises Act (I of 1944), First Sched. Part II, Item 14.14 [as mended by Finance Act (XII of 1991)]‑‑‑Expression "services provided or rendered" "in respect of advances made by various financial institutions‑‑‑Scope‑‑‑Levy of excise duty on bank loans, advances and facilities‑‑‑Validity‑‑‑"Service" in the context of advancing of ‑loans would be managing portfolios, issuance of cheque books or something relatable to advancing of loans‑‑‑Banking is "business" and not `service" as per definition of word "banking" given in S.5 read with S.7 of Banking Companies Ordinance, 1962‑‑‑Legislative has for such reason mentioned in Item 14.14, Col. II, services "in respect of advancing of loans", which on its plain meaning implies that what has been taxed is not mere advancing of loans,, but rather services, which may have been rendered in relation to giving of such loans‑‑‑Mere advancing of loans or financial facilities or quantum thereof does not constitute rendering of services and same cannot be subject to excise duty‑‑‑Yardstick to measure the levy according to Col. III of Item 14.14 is the outstanding balance of loan/advance at the end of every‑ month, whereas the charge is on services "in respect of" loans‑or advances‑‑‑Loan amount may be greater and services rendered may be very meager or vice versa‑‑‑No nexus between yardstick exists to measure the tax and nature and character of subject‑matter of tax‑‑‑Legislature by use of expressions "provided" and "rendered" in Item 14.14 has intended a one‑time levy, but calculation of levy on a continuing basis as mentioned in Third Column of Item 14.14 conflicts the charge mentioned in Second Column‑,of Item 14.14‑‑­Impugned levy, thus, is both ultra vires the Act and Constitution, and cannot be sustained.

Abdul Rahim v.. United Bank Limited PLD 1997 Kar. 62 rel.

(c) Interpretation of statutes‑‑‑

‑‑‑‑ Fiscal statutes‑‑‑Court cannot supply any omission or extra words "or" cannot change the expressions used therein on the ground that Legislature would have used a different word, had it thought about it i.e. there is no scope for any intendment.

Bisvil Spinners v. Superintendent Central Excise PLD 1988 SC 370 ref.

(d) Taxation‑‑‑

‑‑‑‑ Yardstick to measure the tax must have nexus with the nature and character of the subject‑matter of tax.

(e) Interpretation of statutes‑‑‑

Court should lean in favour of finding possible explanations to uphold rather than destroy legislation.

(f) Vires of statutes‑‑‑

‑‑‑‑Determining factors‑‑‑Presumption regarding constitutionality of laws is rebuttable‑Where on a plain reading of a statute and the Constitution, the legislation is so ultra vires that the same cannot be saved despite a very liberal connotation, it is the duty of Courts to strike down the same.

Sabir Shah v. Shah Muhammad Khan PLD 1995 SC 66 fol.

Siraj‑ul‑Haq, Dr. Muhammad Farogh Naseem and Munib Akhtar for Petitioner.

Rizwan Ahmed Siddiqui, Khalid Javed, Qazi Faiz Essa, Muhammad Naeem, Amir Hani Muslim, Faisal Kamal and Raja Qureshi for Respondents.

2002 C L C 1744

[Karachi]

Before Wahid Bax Brohi, J

HASHAM SADARUDDIN GANGJI‑‑‑Petitioner

versus

2ND ADDITIONAL DISTRICT JUDGE (SOUTH), KARACHI and others‑‑‑Respondents

Constitutional Petition No.89 and Civil Miscellaneous Applications Nos.465, 466 and 491 of 2002, decided on 11th March, 2002.

(a) Islamic Law‑‑‑

‑‑‑‑ Nikah‑‑‑Second Nikah over and above an already existing valid Nikah between the same parties is not recognized in Islam nor dissolution of such second Nikah is a judicial separation.

(b) West Pakistan Family Courts Rules, 1965‑‑‑

‑‑‑‑R. 5‑‑‑Dissolution of Muslim Marriages Act (VIII of 1939), S.2‑‑­Muslim Family Laws Ordinance (VIII of 1961), Ss.1(2) & 5‑‑‑West Pakistan Family Courts Act (XXXV of 1964), Ss.5, 14 & Sched.‑‑‑Civil Procedure Code (V of 1908), O.VII, R.10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for dissolution of marriage‑‑‑Return of plaint for its presentation before competent Court‑‑­Parties were married at Karachi, where their Nikahnama was registered‑­‑Parties, after going to Canada entered into another Nikah to satisfy the requirements of law of Canada‑‑‑Judicial separation was obtained at Canada through concerned Supreme Court‑‑‑Family Court returned the plaint to wife‑‑‑Appellate Court set aside said order and remanded the case for its decision after recording evidence of the parties‑‑‑Contention of husband was that order of Appellate Court was not legal as .both the parties were Canadian nationals‑‑‑Validity‑‑‑Husband, despite raising such plea had not shown that parties had lost their Pakistani citizenship‑‑­Registration of Nikahnama as well as residence of wife at Karachi was not disputed by husband nor said marriage had legally been dissolved‑‑­Second Nikah at Canada was an exercise in futility as second Nikah over and above an existing valid Nikah was not recognized in Islam nor its judicial separation‑‑‑Wife was justified in instituting suit at Karachi-‑­Impugned order was not suffering from any legal infirmity' or jurisdictional error‑‑‑High Court dismissed Constitutional petition in limine.

Khurshid Bibi's case PLD 1967 SC 97 and Fazal Khitah v. Mst. Naheed Akhtar PLD 1979 SC 864 ref.

Noorallah A. Manji and Muhammad Akram for Petitioner.

Date of hearing: 11th March, 2002.

2002 C L C 1754

[Karachi]

Before Wahid Bux Brohi, J

FAISAL HANIF‑‑‑Petitioner

versus

Baby MAHNOOR and others‑‑‑Respondents

Constitutional Petition No.S‑416 and Civil Miscellaneous Application No.763 of 2001, decided on 19th March, 2002.

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

‑‑‑‑Ss. 5, 14 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional jurisdiction‑‑‑Scope‑‑‑Maintenance, quantum of‑‑‑Factual controversy‑‑‑High Court in a Constitutional petition while dealing with a factual controversy would not sit as Appellate Court‑‑‑Errors and mistakes in assessment and scrutiny of evidence could be taken note of‑‑­Where impugned order on the face of it was perverse and was not sustainable in the eyes of law, the same could be set aside leaving the same again to Family Court or Appellate Court to satisfy themselves about the quantum of maintenance etc.

Shah Jehan v. Syed Amjad Ali 2000 SCMR 88 and Ghulam Nabi v. Additional District Judge, Jhelum 2001 SCMR 683 rel.

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

‑‑‑‑Ss. 5, 14 & Sched.‑‑‑Constitution of Pakistan (1973), Art 199‑‑‑Constitutional petition‑‑‑Maintenance of minor‑‑‑Family Court granted past and future maintenance to the minor, which judgment was upheld by Appellate Court with modification in current maintenance‑‑‑Contention of petitioner (father) was that maintenance had been granted beyond his capacity‑‑‑Validity‑‑‑Evidence had been duly assessed and no miscarriage of justice had occurred‑‑‑Petitioner claimed his entire source of income to be Rs.5,000 from rent of shop, but was prepared to pay Rs.3,500 (i.e. Rs.2,000 as current maintenance and Rs.1,500 as instalment towards past maintenance)‑‑‑Not conceivable as to how petitioner would maintain himself, his second wife and child from second wife, while living in a posh area from remaining income of Rs.1,500‑‑‑Reasonableness was patently lacking in such contention of petitioner‑‑‑No cogent ground was available to upset the findings of Appellate Court‑‑‑Constitutional petition as against such findings could not be .entertained.

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

‑‑‑‑Ss. 5, 14 & Sched.‑‑‑Constitution of Pakistan (1973), Ari.199‑‑­Constitutional petition‑‑‑Maintenance of minor‑‑‑Family Court fixed past maintenance at Rs.2,500 p.m. rv.e.f. 12‑10‑1997 and future maintenance, at Rs.5,000 p.m. ‑‑‑Appellate Court modified the judgment by reducing current maintenance of Rs.5,000 and fixed the same at Rs.3,000 p.m. w.e.f. 12‑10‑1997‑‑‑Contention of father was that Appellate Court order was erroneous in that the current maintenance of Rs.5,000 had been reduced, but the date from which the same had been given effect to viz. 12‑10‑1997 was eventually the commencing date for past maintenance granted by Family Court‑‑‑Validity‑‑‑Order of the Appellate Court suffered from technical error, which had to be rectified by the said Court itself‑‑‑High Court remanded the case to Appellate Court for rectifying the impugned order.

Muhammad Arif for Petitioner.

Nooruddin Sarki and Ghulam Nabi Shaikh for Respondents

2002 C L C 1764

[Karachi]

Before Ghulam Nabi Soomro and Muhammad Mujeebullah Siddiqui, JJ

CYANAMID PAKISTAN LTD. ‑‑‑Petitioner

versus

COLLECTOR OF CUSTOMS (APPRAISEMENT)

through Assistant Collector Customs Group‑X, Karachi and 2 others‑‑‑Respondents

Constitutional Petitions Nos.519, 535, 793, 794, 795, 797, 856 and 952 of 1997, decided on 15th March, 2002.

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

‑‑‑S. 6‑‑‑Repeal‑‑‑Effect‑‑‑Once any Act, Regulation or any other law is expressly repealed in whole or part or any notification is rescinded, the same cannot be revived until and unless it is revived expressly by another enactment/notification.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 18(2) & First Sched.‑‑‑S. R. O. No.1050(I)/95, dated 29‑10‑1995 & S.R.O. No.1147(I)/89, dated 27‑11‑1989‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑ Constitutional petition‑‑‑Imposition of regulatory duty‑‑‑ Exemption‑‑‑ Scope‑‑‑ Notification S.R.O. No.1147(I)/89, dated 27‑11‑1989, with reference to which the applicability of S.R.O. No.1050(I)/95, dated 29‑10‑1995 was assailed, granted exemption from customs duty as was in excess of 10% ad valorem specified in the First Schedule to Customs Act, 1969‑‑‑In consonance with the principle laid down by Supreme Court in case` titled Collector of Customs v. Ravi Spinning Mills Ltd. reported as 1999 SCMR 412, the regulatory duty imposed vide S.R.O. No.1050(I)/95, dated 29‑10‑1995 had been validly levied on the goods imported by the petitioners‑‑‑Petition was dismissed in circumstances.

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

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 19‑‑‑Exemption notification‑‑‑Implementation‑‑‑Scope‑‑‑Such notification is to be seen and applied as it stands at a particular point of time‑‑‑Nobody can be allowed to take plea that a notification should be read as it stood at some time in the past or the exemption granted through a preceding notification which stands rescinded should be read in the subsequent notification which is a distinct and independent notification in itself and does not narrate that it is a continuation of the earlier rescinded notification.

Aziz A. Shaikh and Ms. Tayyaba Jabeen for Petitioners.

Raja M. Iqbal for Respondent No. 1.

Date of hearing: 1st November, 2001.

2002 C L C 1770

[Karachi]

Before Wahid Bux Brohi, J

GHULAM RASOOL‑‑‑Applicant

versus

MUHAMMAD SALEEM and others‑‑‑Respondents

Revision Application No. 187 of 1995, decided on 15th May, 2002.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 133‑‑‑Witness not cross‑examined by opposite‑party ‑‑‑Effect‑‑­Statement of a witness material to controversy was not challenged‑‑‑Such unchallenged statement should be given full credit and accepted as true unless displaced by reliable, cogent and clear evidence.

Nur Jehan Begum v. Mujtaba Ali Naqvi 1991 SCMR 2300 fol.

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

‑‑‑O. VIII, R.1‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.133‑‑‑Written statement‑ ‑Defendant after filing written statement did not appear as witness before Court‑‑‑ Effect‑‑‑ Much reliance could not be placed upon such written statement‑‑‑Written statement alone was not rebuttal of the evidence whatsoever placed on record by plaintiff.

Nur Jehan Begum v. Mujtaba Ali Naqvi 1991 SCMR 2300; Messrs Shalimar Ltd., Karachi v. Raisuddin Siddiqui 1979 CLC.338 and Khairul Nisa v. M. Ishaque PLD 1972 SC 25 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Scope‑‑‑Concurrent findings of fact‑‑‑Interference when justifiable‑‑‑Judgment passed by Courts below was manifestly perverse, suffering from non‑reading and misreading of evidence on material points‑‑‑High Court would be justified to interfere with such concurrent findings in exercise of powers under S.115, C.P.C.

Abdul Hakeem v. Habibullah 1997 SCMR 1139; Kanwal Nain v. Fateh Khan PLD 1983 SC 53 and Anwar Bibi v. Abdul Hameed 2002 SCMR 144 rel.

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

‑‑‑‑Ss. 8, 42 & 55‑‑‑Civil Procedure Code (V of 1908), S.115 & O.VIII, R.1‑‑‑Qanun‑e‑Shahadat (10 of '1984), Art.133‑‑‑Suit for declaration, possession and mandatory injunction‑‑‑Plaintiff in support of his claim produced oral and documentary evidence‑‑‑Defendants neither cross­-examined plaintiff's witnesses nor themselves led any evidence in rebuttal‑‑‑Trial Court dismissed suit, which decision was upheld by Appellate Court‑‑‑Validity‑‑‑Courts below had committed a grave legal error by overlooking the admitted position that evidence of plaintiff and his witnesses had gone unchallenged thus, in law the facts stated by them had to be taken as admitted by defendants‑‑‑Cross‑examination of plaintiff was reserved at the request of defendants' Advocate, but they remained absent on the relevant date‑‑‑Defendants apparently had chosen not to cross‑examine plaintiff‑‑Plaintiff while producing his documentary evidence had adopted his earlier deposition on record, which covered all material points. of fact, but defendants did not opt to cross‑examine him then‑‑Alleged agreement to sell on the basis of which defendants claimed to have purchased disputed plot from plaintiff could not come on record‑‑‑Courts below had put entire burden on plaintiff to prove alleged agreement to sell to be a forged document‑‑‑Courts below had fallen into a grave mistake in overlooking the admitted fact that plaintiff's oral evidence had gone unchallenged as he was not cross‑examined by defendants‑‑‑Resultantly, plaintiffs' version that such was not a sale agreement, but was a document executed in token of loan obtained by him from predecessor‑in‑interest of defendants on the condition that in case of non‑payment, the amount would be adjusted towards rent payable by defendant in respect of disputed plot rented out to him, stood accepted for all practical purposes‑‑‑Defendants had failed to prove the existence of alleged agreement to sell‑‑‑Alleged agreement to sell was not a registered document and was not adequate by itself to confer a title upon defendants‑‑‑No evidence on record to rebut such ‑evidence of plaintiff beyond the averments in written statement, which alone were not rebuttal of plaintiffs' evidence‑‑‑Documentary evidence of plaintiff had been rejected as being managed documents without assigning any justifiable reason therefore‑‑‑Concurrent findings of Courts below were manifestly perverse, suffering from non‑reading of evidence on material points and flagrant misreading of evidence on record‑‑‑High Court was such, circumstances to interfere with concurrent findings in jurisdiction under S.115, C.P.C.‑‑‑High Court set aside judgments/decree and remanded the case to Trial Court for its decision in accordance with law on all highlighted points after affording ample opportunity to parties to produce evidence, if they desired so.

Nur Jehan Begum v. Mujtaba Ali Naqvi 1991 SCMR 2300; Messrs Shalimar Ltd., Karachi v. Raisuddin Siddiqui 1979 CLC 338; Sh. Manzoor Ahmed v. Mst. Iqbal Begum 1989 SCMR 949; Muhammad Yousif v. Syed Wali Muhammad Shah 1994 CLC 132; Orient Match Company (Pvt.) Ltd. v. Banking Tribunal for Karachi and Sukkar 1996 CLC 1718; Khairul Nisa v. M. Ishaque PLD 1972 SC 25; Abdul Hakeem v. Habibullah 1997 SCMR 1139; Kanwal Nain v. Fateh Khan PLD 1983 SC 53 and Anwar Bibi v. Abdul Hameed 2002 SCMR 144 ref.

K.B. Bhutto for Applicant.

Karim Ayoob Memon and Muhammad Yasin Kiani for Respondents.

Date of hearing; 13th May, 2002.

2002 C L C 1784

[Karachi]

Before Wahid Bux Brohi, J

Mst. SHAMIM ASHFAQ‑‑‑Plaintiff

versus

MUHAMMAD RAFIQ and others‑‑‑Respondents

Suits Nos.325 and 274 of 1995 and Civil Miscellaneous Application No.7902 of 1998, decided on 7th March, 2002.

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

‑‑‑‑O. II, R.2‑‑‑Bar on second suit‑‑‑Applicability‑‑‑Order II, R.2, C.P.C. would be attracted, where causes of action were exactly the same and same evidence would sustain both the suits‑‑‑Same party could not be vexed twice for the same relief omitted in earlier suit.

The Rivers Steam Navigation Co. Ltd. v. The District Council of Bakarganj PLD 1970 SC 63 and Muhammad Khan v. Arshad Jamil 1987 MLD 671 ref.

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

‑‑‑‑O. II, R.2 & O.VII, R.11‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑Sindh Buildings Control Ordinance (VI of 1979), Ss.7 & 16‑‑­Karachi Building and Town Planning Regulations, 1979, Regln. 13‑‑‑Bar under O.II, R.2, C.P.C.‑‑‑ Applicability‑‑‑ Test to determine identity of causes of action‑‑‑Plaintiff in earlier suit for declaration and permanent injunction alleged that defendants while demolishing construction of adjoining house had damaged partition wall and blocked the passage. of her house‑‑‑Plaintiff in earlier suit also stated that seemingly there were plans of defendants to raise high‑rise building on adjoining plot‑‑­Plaintiff, after coming to know about approval of plan for high‑rise building, filed second suit against defendants by adding Karachi Building Control Authority as defendant and sought relief in the form of injunction‑‑‑Defendants objected to second suit being barred by O. II, R.2, C.P.C, and sought rejection of plaint under O.VII, R.11(d), C.P..C.‑‑‑Validity‑‑‑Plaintiff's case in second suit was that raising of high‑rise building was against the rules and regulations‑‑‑Violation of rules had been alleged against Karachi Building Control Authority, who was 'not party in earlier suit‑‑‑Allegations of blocking the passage and other amenities might be common to some extent, but cause of action was quite distinct in both the suits as the test of evidence required to prove the controversial issues would be varying in many respects‑‑‑Set of evidence being different, it could not be contended that there was a common cause of action and second suit was barred under O.11, R.2, C.P.C.‑‑‑High Court dismissed the application of defendants and consolidated both the suits treating the second suit as the leading suit.

The Rivers Steam Navigation Co. Ltd. v. The District Council of Bakarganj PLD 1970 SC 63; Muhammad Khan v. Arshad Jamil 1987 MLD 671; Abdur Rashid v. Burmah Shell PLD 1966 (W.P.) Kar. 126; Mst. Saleema Begum v. Aulad Ali Shah PLD 1981 SC (AJ&K) 128 and Syed Luqman Shah v. District Judge, Haripur 1997 CLC 27 ref.

M. Naimur Rehman for Plaintiff.

Faisal Kamal for Defendant No .1.

Date of hearing: 7th March, 2002.

2002 C L C 1788

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafari, JJ

Mrs. AFZAL JEHAN‑‑‑Appellant

versus

Mrs. RAZIA SULTANA‑‑‑Respondent

High Court Appeal No. 185 of 2001, decided on 3rd August, 2001.

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

‑‑‑‑Ss. 12(2) & 35‑A‑‑‑Specific Relief Act (1 of 1877), Ss. 12, 42 & 54‑‑­Non‑performance of agreement of sale‑‑‑Frivolous litigation‑‑‑Special costs‑‑‑Vendor entered into an agreement of sale of her property with vendor, but she despite receiving considerable amount in advance as part of sale consideration, could not complete sale within the agreed time‑‑­Further agreement was entered into between the parties whereby vendor agreed to refund amount received by her in advance from vendee together with compensation within stipulated time‑‑‑Parties also agreed that in event of failure of vendor to refund amount within specified period, vendor would perform her earlier agreement and would transfer property in favour of the vendee ‑‑‑Vendor having failed to refund amount and also to transfer property according to terms of the agreement, vendee filed suit for declaration, injunction and specific performance‑‑‑Court pronounced consent decree to the effect that vendor would pay amount by way of refund and compensation to vendee within stipulated period‑‑­Vendor, instead of complying with consent decree, filed application under S.12(2), C.P.C. alleging that consent decree had been obtained in collusion of vendee and counsel of vendor who was not authorised by the vendor to consent to the passing of consent decree‑‑‑Said application was dismissed with maximum compensatory costs under S.35‑A, C.P.C.‑‑­Conduct of vendor had been most reprehensible as she despite receiving huge amount in advance from the vendee, had neither transferred property to vendee according to terms of agreement after receiving balance amount, nor had refunded the amount with compensation according to order of Court, but attempted to avoid her obligation by taking contradictory pleas through frivolous litigation‑‑‑Such litigation must be effectively discouraged and vendor should be burdened with maximum costs‑‑‑Application filed by vendor under S.12(2), C.P.C. was rightly dismissed with maximum compensatory costs under S.35‑A, C.P.C.

Lal v. Siddique PLD 1961 Lah. 823; Umer Bux and others v. Azeem Khan and others 1993 SCMR 374 and Mst. Bashiran Bibi and others v. Jewni and others 1997 SCMR 1079 ref.

(b) Counsel and client‑‑‑

‑‑‑‑‑Members of Bar owe a very delicate responsibility towards Court, their clients and public in general‑‑‑Any effort to streamline system of administration of justice and create public confidence therein might be futile without their cooperation‑‑‑Member of legal fraternity ought to be conscious that frivolous litigation was one of the major causes of making our justice delivery system ineffective and resultant public outcry.

Muhammad Muzaffar‑ul‑Haq for Appellant.

Arshad Tayebaly for Respondent.

Date of hearing: 3rd August, 2002.

2002 C L C 1804

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

JAVEDAN CEMENT LIMITED‑‑‑ Petitioner

versus

DEPUTY COMMISSIONER, DISTRICT WEST KARACHI

and 51 others‑‑‑Respondents

Constitutional Petition No.D‑2037 of 1993, decided on 3rd April, 2002.

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

‑‑‑‑O. XVIII, R.18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Power of Court to inspect site/property‑‑‑Site inspection can be conducted for proper appreciation of facts, but same can never be a substitute for evidence and cannot be taken as evidence per se.

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

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Constitutional jurisdiction‑‑‑ Disputed question of facts, investigation of‑‑‑Scope‑‑­Extraordinary Constitutional jurisdiction conferred under Art.199 of the Constitution cannot be converted into original civil jurisdiction, wherein pleadings of parties are taken on record, issues are framed, evidence furnished by parties is recorded, and thereafter disputed questions of facts are determined‑‑‑Disputed question of fact cannot be decided in Constitutional petition.

Abdul Aziz For Petitioner.

Muhammad Rgfiq, Addl. A.‑G. for Respondents Nos. l and 4.

Ikram Ahmed for Respondents Nos.2 and 3.

Date of hearing: 28th March, 2002.

2002 C L C 1807

[Karachi]

Before Saiyed Saeed Ashhad, C. J. and Ghulam Rabbani, J

ZUBAIR AHMED CHANDIO and another‑‑‑Petitioners

versus

WDISTRICT RETURNING OFFICER ‑‑‑ Respondent

Constitutional Petition No. D‑357 of 2002, decided on 17th May, 2002

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

‑‑‑‑Ss. 14, 16 & 18‑A‑‑‑Sindh Local Government Elections Rules, 2000, Rr. 16, 18, 81, 83 & 86‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Nazim having been adjudged as defaulter was not qualified to be elected or hold an elective office or membership of Local Government‑‑‑Disqualification of one of candidates, either as Nazim or Naib‑Nazim shall have the repercussions on the other joint candidate‑‑‑ Election Tribunal was empowered to make an order declaring the election of returned candidates to be void and the other contesting candidates to have been duly elected‑‑‑Principles.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Civil Petition No.442=K of 2001; Muhammad Iqbal v. District Returning Officer and others 2001 YLR 855; Black's Law Dictionary and C.P. No.D‑1215 of 2001 ref.

Kamal Azfar and Abdul Ghafoor Mangi for Petitioners.

Muhammad Sarwar Khan, Addl. A.‑G., Sindh for Respondents Nos. l to 3.

I.A. Hashmi for Respondents Nos.4 and 5.

Date of hearing: 14th March; 2002.

2002 C L C 1845

[Karachi]

Before Ata‑ur‑Rehman, J

FEROZA BEGUM‑‑‑Plaintiff

versus

GOVERNMENT OF SINDH through Secretary, Ministry of Local Self‑Government and 2 others‑‑‑Defendants

Suit No. 1360 of 1989, decided on 10th March, 1999.

Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Death of deceased in road accident caused by rash and negligent driving of defendant‑‑‑Suit for compensation‑‑‑Eye‑witness in his affidavit‑in‑evidence had supported case of plaintiff regarding rash and negligent driving of defendant resulting into death of the deceased‑‑­Eye‑witness having not been cross‑examined by defendants, his statement remained unrebutted‑‑‑Omission to cross‑examine eye‑witness on material aspect of evidence, would lead to conclusion that defendants had admitted veracity and truth of statement of eye‑witness‑‑‑Statement of eye‑witness in respect of rash and negligent driving of defendant would be deemed to have been admitted and would be relied upon by Court‑‑Finding of Court in respect of issue regarding death of deceased caused on account of rash and negligent driving of defendant being in affirmative, defendants were liable for payment of compensation to plaintiff jointly and severally‑‑­Calculation of amount of loss for which plaintiff was entitled foe accidental death of deceased was not questioned by defendants‑‑‑Amount of compensation determined keeping in view average life span in Pakistan, earning capacity of deceased and other losses, being in consonance with law in respect of quantification of compensation, suit was decreed accordingly.

Muhammad Maqsood for Plaintiff.

Date of hearing: 10th March, 1999.

2002 C L C 1854

[Karachi]

Before S.A. Sarwana and Muhammad Mujeebullah Siddiqui, JJ

Mst. TABASSUM‑‑‑Petitioner

versus

GOVERNMENT OF SINDH through Secretary, Cooperation Department, New Sindh Secretariat Building, Karachi and 5 others ‑‑‑ Respondents

Constitutional Petition No.D‑1405 of 1991, decided on 14th September 2001.

Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑S. 54‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Arbitration proceedings‑‑‑Writ of certiorari, issuance of‑‑­Petitioner purchased plot from persons to whom same was leased out for 99 years by Karachi Development Authority‑‑‑Respondent who claimed the same right in the plot, filed application for Arbitration under S.54, Cooperative Societies Act, 1925, against the Housing Society‑‑‑Nominee of Registrar, Cooperative Societies to whom case was referred gave award in favour of .respondent without recording any evidence and without seeing whether necessary parties had been impleaded in the case‑‑‑Validity‑‑‑Two essential conditions must be ‑fulfilled before invoking provisions of S.54, Cooperative Societies Act, 1925, firstly, that the dispute must be touching the business of Society and secondly, that it must be between Society or its members or between the members or past members or those who claimed through them‑‑‑Petitioner had purchased the 'plot from lessees of the plot and original lessees of plot and Karachi Development Authority which had leased out plot to the said lessees being not members of the Society could not be a party to the arbitration proceedings‑‑‑Deputy Registrar, Cooperative Societies, in circumstances, had no authority to refer matter to nominee of Registrar, Cooperative Societies under S.54, Cooperative Societies Act, 1925 and Arbitrator had no jurisdiction to cancel lease‑deed executed by Karachi Development Authority‑ ‑‑Arbitration proceedings, award announced by Registrar's nominee and judgments by Appellate and Revisional Authorities were quashed through writ of certiorari by High Court.

Azizuddin Ahmed v. Aziz Ahmed PLD 1959 Kar. 497 ref.

Afsar Abidi for Petitioner

Abbas Ali, A.A.‑G. for Respondents Nos 2 and 3

Shall Muhammadi for Respondent No.4.

Nazar Hussain Dhoon for Respondent No.6

Date of hearing: 9th February, 2001.

2002 C L C 1863

[Karachi]

Before Shabbir Ahmed and Anwar Zaheer Jamali, JJ

Mst. ZOHRA‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN through Chief Secretary, Government of Pakistan

and 8 others‑‑‑Respondents

Constitutional Petition No.D‑74 of 2000, decided on 16th October, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Writ of mandamus‑‑‑Petitioner, in her Constitutional petition, had urged to. restrain respondents (Government functionaries) from entering into her house and subject her or her family members to torture and harassment and had further prayed that respondents should not exceed limits of their powers while performing their duties‑‑­Respondents had denied visit or raid to the house of petitioner‑‑­Petitioner had submitted that she would be satisfied if her petition was disposed of in terms that respondents would act in accordance with law while discharging their duties and would not cause any harassment‑‑­Constitutional petition was disposed of accordingly with observation that petitioner could invoke jurisdiction of competent Court for redressal of her grievance to claim compensation.

Qubran Ali Chohan for Petitioner.

Hakim Ali Siddiqui for Dy.A.‑G. for Respondents Nos. l to 7.

Hidayatullah Abbasi for Respondents Nos.8 and 9.

Masood A. Noorani, Addl. A.‑G., Sindh.

2002 C L C 1870

[Karachi]

Before Saiyed Saeed Ashhad, C. J. and Mushir Alam, J

Messrs LUCKY WINE SHOP STORE through Proprietor‑‑ ‑Petitioner

versus

GOVERNMENT OF SINDH through Secretary, Excise and Taxation Department

and another‑‑‑Respondents

Constitutional Petition No. 1133 of 1999, decided on 6th. December, 2001.

(a) Sindh Excise Manual‑‑‑

‑‑‑‑ Vol. 1, para. 100(8)‑‑‑Excise shops‑‑‑Change in venue‑‑‑Inter‑District change‑‑‑ Sanction to change in venue can be allowed within same town or village and the provision of Vol. I, Para.100(8) of the 'Sindh Excise Manual does not provide for inter‑District transfer/change.

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

‑‑‑‑S. 21‑‑‑Locus poenitentiae, principle of ‑‑‑Applicability‑‑‑Scope‑‑­ Authority having power to make an order; also has the power to undo it, subject to the exception that where the order has taken legal effect and in pursuance thereof certain rights have been created in favour of any individual such order normally cannot be withdrawn or rescinded to the detriment of the right created by virtue of such order‑‑‑Such rule is not absolute‑‑‑Where an order has been passed by a functionary in exercise of purported authority under misconception , of law or for any other extraneous consideration then even if pursuant to such order any decisive step is taken or the order is implemented, no right is created or vests in the beneficiary‑‑‑On discovery of such illegality the successor functionary can always retrace the steps after due notice, undo the wrong and restore the state and position as it was before passing of such illegal order and not beyond.

(c) Sindh Excise Manual‑‑‑

‑‑‑‑Vol. I, paras. 100, 100(8) & 282‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Licence, cancellation of‑‑‑Petitioner was running a wine. shop on the basis of a licence for a specific area issued by the Authorities‑‑‑Petitioner applied for change of venue of the shop from one district to the other district‑‑‑Permission was accorded to the petitioner on his deposit of a sum of Rs.50,000‑‑‑Successor‑in‑office in the department found the permission against para.100 of Vol.I of Sindh Excise Manual and licence was cancelled‑‑‑Contention of the petitioner was that firstly the successor‑in‑office could not rescind the permission and secondly the licence could not be cancelled ‑‑‑Validity‑‑­Succeqsor‑in‑office while undoing a wrong had exceeded the authority and instead of rescinding the wrong step alone, proceeded to cancel the licence and for such action there was no justification‑‑‑State functionary could undo and rescind the order to the extent it was wrong or illegal and not beyond‑‑‑Order of the Authorities to the extent of cancellation of licence was unwarranted and uncalled for‑‑‑Petitioner conceded the order to the extent of change of venue‑‑‑Order passed by the Authorities to the extent of cancellation of licence was set aside‑‑‑Constitutional petition was allowed accordingly.

Neel Keshav for Petitioner.

Sarwar Khan, A.A.‑G. for Respondents.

Date of hearing: 10th October, 2001.

2002 C L C 1880

[Karachi]

Before Zia Perwez, J

Messrs HANOVER CONTRACTORS‑‑‑Plaintiff

versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY‑‑‑ Defendant

Suit No.363 and Civil Miscellaneous Applications Nos.5592, 6203, 7512 and 7592 of 2001, decided on 4th December, 2001.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 2(a)‑‑‑Arbitration agreement‑‑‑Necessary requirements‑‑­Arbitration agreement under S.2(a) of the Arbitration Act, 1940, is required to be in writing and may be contained in one or more documents.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 2(a), 33 & 34‑‑‑Arbitration agreement‑‑‑Conditions mentioned in the agreement‑‑‑ Stay of proceedings before Civil Court‑‑‑Contract of construction was awarded by defendants to the plaintiffs‑‑‑Dispute arose between the parties regarding the contract and the matter was referred to the consultant as it was settled between the parties in the agreement‑‑­Consultant gave a decision in favour of the plaintiffs which was not challenged in the time period mentioned hr the agreement‑‑‑Plaintiffs filed suit for recovery of their amount and filed application under S.33 of the Arbitration Act, 1940, while the defendants sought stay of proceedings under S.34 of the Arbitration Act, 1940, and wanted to invoke the arbitration clause mentioned in the agreement‑‑‑Documents were prepared by the defendants and they themselves incorporated the condition of prior reference of the claim to the consultant and agreed to treat the decision as final in case it was not challenged within a period of 28 days‑‑‑Effect‑‑‑Where there was a pre‑condition contained in the arbitration clause, the same was binding upon the parties‑‑‑Parties were not allowed to turn around and disown the conditions laid down by them which had been‑relied and acted upon‑‑‑High Court declined to allow invoking of arbitration clause in circumstances‑‑‑Both the applications filed by the parties were dismissed.

Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaner PLD 1981 SC 553; B.R. Harman and Motatta Ltd. v. Ghee, Corporation of Pakistan Ltd. PLD 1980 Kar. 40; Ahmed Construction v. Neptune Textile Mills and another PLD 1990 Kar. 216 and Mst. Shamim Akhtar v. Najma Baqai and 3 others 1977 SCMR 409 ref.

Plaintiff in person.

Munawar Malik for Defendant.

2002 C L C 1889

[Karachi]

Before Mushir Alam, J

AVARI HOTELS LIMITED through Chairman and Chief Executive‑‑‑Plaintiff

versus

INVESTMENT CORPORATION OF PAKISTAN through Managing Director/

Principal Officer and 6 others‑‑‑Defendants

Suit No. 1204 of 1999 and Civil Miscellaneous Applications Nos.5058 of 2001 and 128 of 2002, decided on 21st January, 2002.

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

‑‑‑‑S. 153‑‑‑Power of Court to amend any defect or error in proceeding in a suit‑‑‑Scope‑‑‑Such powers could be exercised at any time on such terms as to cost or otherwise even after the Court had disposed of the suit for the purpose of determining the real question or issue raised by or depending on such proceedings.

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

‑‑‑‑O I, R. 10 & O.XLI, R.33‑‑‑Supreme Court Rules, 1980, O.XXXIII, R.5‑‑‑Power to implead a party‑‑‑Scope and purpose ‑‑‑Joinder or transaction of proper and necessary parties was always carried out by Court liberally in order to avoid multiplicity of proceedings and bringing an end to controversy effectively and finally between all the parties‑‑­Such powers could be exercised by High Court under O.XLI, R.33, C.P.C. and by Supreme Court under O.XXXIII, R.5 of Supreme Court Rules, 1980, whether such parties had filed an appeal or objections to the proceedings or not.

Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590 and Muhammad Sharif v. Dr. Khurshid Anwar Mian 1996 SCMR 781 ref.

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

‑‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), Ss.151, 152, 153, O.I, Rr.6, 10 & O.XXIII, R.3‑‑‑Contract Act (IX of 1872), S.43‑‑‑Suit for declaration and permanent injunction ‑‑‑Joinder of party liable on same contract‑‑‑Disposal of suit in terms of compromise without deciding the application of proposed co‑plaintiff made under O.I, R.10, C.P.C. seeking his joinder as such being liable under such compromise­ validity ‑‑‑Proposed co‑plaintiff was not privy to contract of finance and restructuring, out of which suit filed by plaintiff against defendants‑Bank had arisen‑‑‑Dispute was compromised between defendants as one party and plaintiff and proposed co‑plaintiff as other party through compromise deed, whereunder proposed co‑plaintiff had assumed pendent lite certain rights and obligations vis‑A‑vis the defendants, on the basis of which the suit was decreed‑‑‑Proposed co‑plaintiff being co‑compromisor in compromise deed had covenanted to discharge the liability of plaintiff in terms thereof‑‑‑Interest of all the defendants who are banking companies and financial institutions would be seriously affected and jeopardized in absence of proposed co‑plaintiff/co‑compromisor‑‑‑Addition of proposed co‑plaintiff would not cause prejudice to any party, rather same would protect the rights and interest of all the parties ‑‑‑Co‑plaintiff, if not necessary party, had become proper party to the proceedings‑‑‑Decree had not yet been prepared‑‑‑Order I, R.10, C.P.C. envisaged addition or substitution of a party at any stage of suit‑‑‑High Court accepted the application while observing that suit would be deemed to have been disposed of in presence of and after joinder of proposed co plaintiff.

Muhammad Sher v. Muhammad Khan PLD 1975 Lah. 1016; Fazal Din v. Rehabilitation Commissioner (Land) 1988 MLD 2401; Muhammad Qasim Khan and 6 others v. Mst. Mehbooba and 6 others 1991 SCMR 515; Daw Aye Mya v. U Kwe Nyo and another AIR 1933 Rang. 23 and Dinanath Kumar v. Nishi Kanta Kumar AIR 1952 Cal. 102 ref.

Muhammad Ali Saeed for Plaintiff and Co‑Plaintiff.

Mahmood Mandviwala for Defendants.

Date of hearing: 5th November, 2001.

2002 C L C 1968

[Karachi]

Before Muhammad Afzal Soomro, J

KHUSHI MUHAMMAD ‑‑‑Appellant

versus

KARACHI DEVELOPMENT AUTHORITY‑‑‑Respondent

Civil Review Application No.181, of 1997 and Civil Miscellaneous Application No.938 of 2001, decided in 24th May, 2002.

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

‑‑‑‑Ss. 115 & 151‑‑‑Limitation Act (IX of 1908), Art.181‑‑‑Revision, restoration of‑‑‑Limitation‑‑‑Jurisdiction of Court‑‑‑Revision was dismissed for non‑prosecution‑‑‑Applicant filed application for restoration of the revision after about more than four months of the dismissal order‑‑‑Validity‑‑‑In the absence of specific provisions, the Court exercises inherent jurisdiction under S.151, C.P.C. for restoration of revision‑‑‑As no limitation is prescribed under Limitation Act, 1908, for submission of application for restoration of revision, the residuary Art. 181 of Limitation Act, 1908, is applicable which stipulates period of three years for filing of application from the date when the right to apply accrues‑‑‑While restoring the revision dismissed for non‑prosecution, the Court has to keep in mind the reasons which are shown for non­appearance due to which the main case had been dismissed‑‑‑Application for restoration of revision was not time‑barred in circumstances.

Messrs Ganisons Industries Limited, Karachi v. Mirza Akhlaque Ahmed PLD 1974 Kar. 339 distinguished.

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

‑‑‑‑Ss. 115 & 151‑‑‑Revision, restoration of‑‑‑Relevant file missing from the office‑‑‑Failure of counsel to check cause list‑‑‑Revision was dismissed for non‑prosecution on 3‑11‑2000, as the counsel of the petitioner inadvertently could not check the cause list properly‑‑­Application for restoration of the revision was filed on 19‑3‑2001, because the file in the office could not be located by the staff and the counsel personally checked all the registers and came to know that the case was dismissed for non‑prosecution‑‑‑Validity‑‑‑Applicant failed to give any justifiable/sufficient reason to restore the revision‑‑‑High Court declined to allow the application for restoration of revision‑‑‑Application was dismissed in circumstances.

House Building Finance Corporation v. Mrs. Sarwar Jehan PLD 1992 Kar. 329 ref.

S.M. Alam for Applicant.

Muzaffar Imam for Respondent.

Date of hearing: 24th May, 2002.

2002 C L C 1971

[Karachi]

Before S. Zawwar Hussain Jaffery, J

MAQSOOD AHMAD through Legal Heirs‑‑‑Applicant

versus

Shrimati BHAGWANI BAI and another‑‑‑Respondents

Civil Revision Application No.9 of 1992, heard on 8th April, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 8 & 42‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.30‑‑‑Recovery of possession‑‑‑Illegal possession‑‑‑Statutory tenant, status of‑‑‑Failure to seek declaration of title by plaintiff‑‑‑Defendant resisted the suit on the ground that he had taken the suit shop on rent for which he was regularly depositing rent with the Rent Controller and as such he was tenant‑‑‑Defendant had also claimed the status of a statutory tenant labouring under misconception that the property was an evacuee property and claimed privilege of S.3o of Displaced Persons (Compensation and Rehabilitation) Act, 1958, for his eventual eviction from the shop‑‑‑Defendant also challenged the maintainability of the suit .on the ground that a declaration of the title should have been obtained by the plaintiff in the suit‑‑‑Validity‑‑‑Trial Court, in the present case, had dealt with all issues separately in exhaustive manner against which High Court declined to take any exception‑‑‑After the confirmation of title by the Settlement Authorities and finally by the High Court through Constitutional petition it was futile for the plaintiff to insist upon the grant of declaration of title by Civil Court‑‑‑As the defendant could neither produce any rent agreement nor any receipt for payment of rent in the Trial Court as well as in Appellate Court, the plea of being tenant was rejected by High Court being false, and fabricated and invented to perpetuate his illegal possession over the shop for more than 30 years without any legal justification‑‑‑Defendant had no right of occupation of the shop in question‑‑‑Defendant had perpetuated his illegal possession depriving the real owner to enjoy the benefits of his property for about 30 years‑‑‑High Court expressed its deep indignation for the inordinate delay which was caused by the various reasons created by the defendant which resulted in delaying the dispensation of justice.

PLD 2001 SC 443 ref.

Shaikh Fazaluddin for Applicant

S. Zaheer Hassan for Respondents.

Dates of hearing: 1st and 8th April, 2002.

2002 C L C 1985

[Karachi]

Before Zahid Kurban Alvi, J

SADIQ MASIH and another‑‑‑Plaintiffs

versus

KARACHI TRANSPORT CORPORATION through Chairman, Managing Director or Directors and 2 others‑‑‑Defendants

Suit No.259 of 1988, decided on 20th March, 2000.

Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Damages‑‑‑Computation‑‑‑Compensation claimed in, plaint‑‑­Death was proved to be the result of rash and negligent driving of defendant‑‑‑Plaintiffs who were father and mother of the deceased were aged about 52 years and 45 years respectively‑‑‑High Court taking maximum age limit expected to be upto 70 years held the plaintiffs entitled to compensation, 20% increase in aggregate income of deceased and also included inflationary charges in the compensation‑‑‑Out of total amount so calculated by High Court, deduction of 1/3rd amount was made as compulsory spending by the deceased on himself‑‑‑Total amount calculated by High Court was Rs.7,20,000 but the plaintiff claimed only a sum of Rs.6,00,000 as compensation‑‑‑Effect‑‑‑High Court declined to award more than what had been claimed by the plaintiffs in the suit‑‑‑Suit was decreed accordingly.

Nasir Maqsood for Plaintiff.

Ch. Rafiq. Addl. A.‑G. for Defendants.

Date of hearing : 28th February, 2000.

2002 C L C 1989

[Karachi]

Before Syed Zawwar Hussain Jaffery and Muhammad Afzal Soomro, JJ

Mst. SAMI and 8 others‑‑‑Petitioners

versus

Mst. FIRDOS BEGUM and 15 others‑‑‑Respondents

Constitutional Petition No.281 of 2001, decided on 14th March, 2002.

(a) Qanun‑e‑Shahadat (10 of 1914)‑‑‑

‑‑‑‑Art. 133‑‑‑Re‑examination of witness‑‑‑Object and scope‑‑‑Object of re‑examination of a witness is to clear an ambiguity which has arisen upon cross‑examination‑‑‑Re‑examination does not provide a chance to the party for making improvement in the examination‑in‑chief‑‑‑Condition essential for re‑examination is the existence of some ambiguity which has crept into the examination‑in‑chief by some embarrassing question asked in cross‑examination.

(b) Words and phrases‑‑‑

---“Ambiguity" ‑‑‑Meaning‑ ‑‑Ambiguity is doubtfulness, double meaning and obscurity.

(c) Qanun-e-Shahdat (10 of 1984)---

‑‑‑‑Art. 133‑‑‑Constitution of Pakistan (1973), Art .199‑‑‑Constitutional petition‑‑‑Re‑examination of witness‑‑‑Dispute was to clarify payment of consideration amount‑‑Petitioners sought re‑examination of the witness on the ground that some ambiguity was caused in the evidence and the same required clarification by the witness as to whether the amount was paid or not‑‑‑Both the Courts below disallowed re‑examination of the witness on the ground that no ambiguity had been caused by the evidence and the same did not require re‑examination‑‑‑Validity‑‑‑Question proposed to be asked would make the position of the petitioner still worse‑‑‑Proposed question could be answered in affirmative or in negative, in the former case, the question would confirm the fact that consideration was not paid in his presence and if answered in negative, it would adversely affect the credibility of the witness‑‑‑In both situations it would lead to results not favourable to the petitioners‑‑‑High Court did riot find any flaw or infirmity in the two orders passed by the Courts below to which no exception could be taken‑‑‑Petition was dismissed in circumstances.

PLD 1987 SC 447; PLD 1999 SC 632; PLD 1999 Kar. 257 and PLD 1993 SC 399 ref.

Moohanlal K. Makhijani for Petitioners.

Sardar Akbar Ali Ujjan for Respondents Nos. 1, 2, 3, 6 and 7

Date of hearing: 28th February, 2002.

2002 C L C 1996

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

MUHAMMAD YOUSIF--‑Petitioner

versus

Mst. RAFIA BEGUM and 6 others‑‑‑Respondents

Civil Revision No. 18 of 2001, heard on 21st June, 2002.

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

‑‑‑‑S. 11‑‑‑Res judicata, principle of‑‑‑Applicability‑‑‑Where there is a judgment inter parties it prevents a fresh suit between them regarding the same matter‑‑‑Maintenance of public order repose of society and the quiet of the families require that what has been definitely determined by Competent Authorities is to be accepted as irrefrangible legal truth and it is an admitted position that rule of res judicata is applicable in such cases‑‑‑if it is not for the conclusive effect of all such determinations there will be no end to litigation and no security for any person‑‑‑Rights of parties would be involved in endless confusion and great injustice would ensue under cover of law.

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

‑‑‑‑Ss. 33 & 42‑‑‑Civil Procedure Code (V of 1908), Ss.11 & 115‑‑­Declaration and cancellation of document ‑‑‑Principle of res judicata‑‑­Petitioner claimed ownership over suit property without any legal authority‑‑‑Petitioner being unauthorized occupant of the property had deprived the real owners to enjoy the benefit of their property for about 50 years‑‑‑Matter had already been decided in favour of the respondents by the Courts up to Division Bench of High Court‑‑‑Petitioner once again agitated the same matter between the same parties‑‑‑Validity‑‑‑Petitioner had no right of occupation over the suit property‑‑‑Matter was delayed by the petitioner in the Courts and assumed various manoeuvrings which had resulted in delaying the dispensation of justice‑‑‑Appellate Court had rightly decided the matter against the petitioner and High Court declined to interfere with the same in exercise of revisional jurisdiction under S.115, C.P.C.

1999 MLD 595; 1999 MLD 824; PLD 1979 SC 203; PLD 1983 SC (AJ&K) 89; NLR 1979 Lah. 614 ref.

David Lawrance for Petitioner.

Abdul Fateh Malik for Respondents.

Date of hearing: 26th April, 2002

2002 C L C 8

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD HUSSAIN ‑‑‑Appellant

versus

ABDUL QUDDUS and 4 others‑‑‑Respondents

First Appeal from Order No.230 of 2001, decided on 6th August, 2001.

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

‑‑‑‑O. III, R.4(5)‑‑‑Appointment of pleader‑‑‑Withdrawal of application by pleader appointed by counsel‑‑‑Effect‑‑‑Where the application was withdrawn by the counsel appointed by the principal counsel of the party, withdrawal of the application would be deemed to be by the principal counsel‑‑‑Principal counsel cannot take exception to the acts done by second counsel appointed by him .

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

‑‑‑‑O. III, R.4(5), proviso & S.104‑‑‑Appointment of pleader‑‑­Withdrawal of application by pleader appointed by the counsel of the appellant‑‑‑Pleader was also a counsel and son of the principal counsel who was engaged to plead the case on behalf of the appellant and was appointed to act on behalf of the appellant in the Trial Court without any authority in writing‑‑‑Under the implied authority, the pleader had withdrawn application for temporary injunction moved on behalf of the appellant‑‑‑Appellant denied the authority of the pleader to withdraw the application‑‑‑Validity‑‑‑Presumption in the present case would be that the pleader must have been authorized to do so on behalf of principal counsel/his father‑‑‑Order passed by the Trial Court was unexceptionable and did not call for any interference by High Court‑‑‑Appeal was dismissed in limine.

Mst. Nawab Bibi and 3 others v. Ch. Allah Ditta and others 1998 SCMR 2381 and Karim Bakhsh and another v. Hussain1984 CLC 2154 ref.

Mian Sarfraz‑ul‑Hassan for Appellant.

ORDER

2002 C L C 22

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD ASLAM KHAN---Petitioner

versus

MUHAMMAD ANWAR KHAN---Respondent

Civil Revision No.450-D of 1994/BWP, decided on 15th May, 2001.

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

----Arts. 72 & 119---Specific Relief Act (I of 1877), S.12--­Agreement ---Onus to prove---Specific performance of the agreement was sought by the plaintiff---Principal onus of proving execution of the agreement was upon the plaintiff and the evidence in that respect had to be strong, consistent and cogent.

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

----Arts. 72 & 119---Specific Relief Act (I of 1877), S,12---Agreement--­Onus to prove---Non-appearance of defendant in witness-box---Effect--­Where specific performance of the agreement was sought by the plaintiff, non-appearance of the defendant in the witness-box was of not much consequence, as the initial burden of proof was upon the plaintiff.

Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890; Fazal Dad and others v. Jehandad and others 1991 CLC 1783 Riasat Ali v. Muhammad Jaffar Khan and 2 others 1991 SCMR 496 and Noorul Amin and another v. Muhammad Hashim and 27 others 1992 SCMR 1744 ref.

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

S' 12---Civil Procedure Code (V of 1908), S.115---Specific performance of agreement---Concurrent findings of fact by the Courts below---Effect---Scope of civil revision under S.115, C.P.C. being limited where concurrent findings of the Trial Court and the Appellate Court did not suffer from any misreading or non-reading of evidence, the same did not warrant interference in revisional jurisdiction as there was no illegality or material irregularity in the judgments passed by both the Courts below---Revision was dismissed in circumstances.

Mst. Sabiran Bi v. Ahmad Khan and another 2000 SCMR 847 ref.

Muhammad Jaffar Hashmi for Petitioner.

M.M. Bhatti and Ch. Abdul Sattar for Respondent.

Date of hearing: 15th May, 2001.

2002 C L C 31

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD ASHRAF‑‑‑Appellant

versus

Haji MUHAMMAD HANIF ‑‑‑Respondent

Regular Second Appeals Nos.70, 68 and 69 of 1984/BWP and 7 of 1985/BWP, decided on 30th May, 2001.

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

‑‑‑‑O. XLI, R.1(2)‑‑‑Memorandum of appeal‑‑‑Abandoning of issues‑‑­Findings of Trial Court on certain issues which were adverse to the appellant and the same had resulted in the dismissal of the suit, were abandoned and given up by the appellant‑‑‑Effect‑‑‑Such conduct of the appellant would amount to admitting the judgment of the Trial Court as correct and binding upon him.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 15‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Superior right of pre‑emption‑‑‑Proof of ‑‑‑Pre‑emptor claimed his superior right on the basis of his being owner in village on the strength of oral sale‑‑Both the Courts below concurrently decided the suit in favour of the pre emptor ‑‑‑Validity‑‑‑Pre‑emptor failed to prove the origin of his title of being owner in the village as the same was not borne out from the record‑‑‑Effect‑‑‑Any oral sale or long standing entries in the Revenue Record would not create title in the pre‑emptor ‑‑‑Any sale of immovable property of the value of more than Rs.100 according to the provisions of S.54 of Transfer of Property Act, 1882 was to be made through a registered instrument‑‑‑Where the provisions of S.54 of Transfer of Property Act, 1882, were applicable to the sale, any sale in violation of the requirement of the same was void ‑‑‑Pre‑emptor, in order to succeed, must show his superior right of pre‑emption at the time of sale, the institution of suit and the passing of the decree ‑‑‑Pre‑emptor having failed to prove his superior right of pre‑emption at any stage judgments and decrees passed by the First Appellate. Court and the Trial Court were set aside.

Haji Sultan Muhammad v. Muhammad Siddiq PLD 1973 SC 347; Jangi v. Jhanda and others PLD 1961 BJ 34; Haji Noor Muhammad v. Ghulam Masih Gill PLD 1965 (W.P.) BJ 1; Muhammad Bakhsh v. Zia Ullah and others PLD 1971 (W.P.) BJ 42; Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988; Muhammad Khan and another v. Fazal Muhammad and another 1994 SCMR 281; Pir Bakhsh v. Budhoo NLR 1978 Civil 249 and Muhammad Fazal v. Kaura 1999 SCMR 1870 ref.

Aejaz Ahmad Ansari and Ch. Abdul Sattar for Appellants.

M.M. Bhatti and Malik Manzoor Ahmed for Respondents.

Date of hearing: 25th May, 2001.

2002 C L C 39

[Lahore]

Before Asif Saeed Khan Khosa, J

Miss ROBINA SHEIKH‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN‑‑‑‑Respondent

Writ Petition No.8691 of 2001, decided on 18th October, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope‑‑­Constitutional petition was based upon the petitioner's personal perceptions about different concepts of religion and not upon any Constitutional or legal issue‑‑‑Petitioner sought direction of the High Court to the Federal Government to amend certain law so as to highlight the difference between "Jihad" and "Terrorism" and not to persecute certain organizations by branding them as terrorist organizations‑‑‑

Validity‑‑‑High Court under Art. 199 of the Constitution cannot direct the Government to amend any law‑‑‑Courts of justice are not proper fora for canvassing matters which essentially lie in the sphere of public policy or interpretation of religious beliefs‑‑‑Constitutional petition, being misconceived, was dismissed in limine.

Ch. Muhammad Farooq for Petitioner.

2002 C L C 40

[Lahore]

Before Maulvi Anwarul Haq, J

FAZAL HUSSAIN ‑‑‑Petitioner

versus

Mst. ASMAT BIBI and another‑‑‑‑Respondents

Writ Petition No. 1228 of 2000, heard on 19th July, 2001.

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

‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Suit for dissolution of marriage on ground of Khula' ‑‑‑Suit was decreed with a condition that wife would pay amount and golden ornaments to the husband‑‑‑Appellate Court on appeal, removed condition from the decree of the Trial Court with regard to the payment of amount and ornaments‑‑‑Husband though in his written statement had alleged that the wife had left his house taking away ornaments and cash, but he did not make a specific demand that some benefits were conferred by him upon the plaintiff and that she should return the same as consideration for Khula`‑‑‑In the absence of any demand made by the defendant either in his pleadings or in evidence for payment of amount and ornaments to him, the Family Court was not bound to order payment of the said items‑‑‑Appellate Court had rightly set aside order of the Trial Court removing condition of payment of amount and the ornaments.

Noor Muhammad v. Judge, Family Court, Burewala, District Vehari and another PLD 1989 Lah. 31 and Dilshad v. Mst. Musarat Nazir and another PLD 1991 SC 779 ref.

Basharatullah Khan for Petitioner. Hussain Abuzar Pirzada for Respondent No. 1.

Date of hearing: 19th July, 2001.

2002 C L C 47

[Lahore]

Before Syed Zahid Hussain, J

GHULAM ABBAS and 7 others‑‑‑Petitioners

Versus

Malik MUHAMMAD IJAZ and 16 others‑‑‑Respondents

Civil Revision No. 1276 of 1998, heard on 20th March, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), 0.1, R.10 & S.115‑‑­Transfer.of Property Act (IV of 1882), S.52‑‑‑Doctrine of lis pendens‑‑­Application‑‑‑Suit for specific performance of contract ‑‑‑Impleading of party‑‑‑Application was filed by the petitioners to be impleaded as parties in the suit on the ground that they were vendees of suit‑land from one of the plaintiffs vide mutation‑‑‑Application was contested on the ground that the transaction was hit by the principle of lis pendens‑‑‑Application filed by petitioners for impleading them as party in the suit was rejected by the Trial Court simply on the ground that the same was not supported by any proof of sale in their favour so as to implead them as party of the suit‑‑‑Plaintiffs, in reply, had not denied transaction of sale of suit‑land in favour of petitioners but only principle of lis pendens was invoked against the petitioners and the Trial Court had omitted to advert to the reply filed by the plaintiffs‑‑‑Reason which weighed with the Trial Court in rejecting the application for impleading petitioners as party was not sustainable, especially when one of the vendees, pending litigation had been ordered to be impleaded as defendant in the suit‑‑‑Petitioners who had acquired some interest in the suit‑land, were entitled to be impleaded as party and heard by the Trial Court‑‑‑Effect of the transaction pending litigation and the rule of lis pendens would be examined by the Trial Court in the due course of time‑‑‑Order of the Trial Court was set aside in circumstances.

Akhtar Masood Khan for Petitioners.

Javed Iqbal Sheikh for Respondents.

Date of hearing: 20th March, 2000.

2002 C L C 54

[Lahore]

Before Ch. Ijaz Ahmad, J

Master SAID‑‑‑Petitioner

Versus

Ch. IFTIKHAR HUSSAIN, DISTRICT JUDGE, JHANG and others‑‑‑Respondents

Writ Petition No. 187 of 19.95, decided on 18th September, 2001.

(a) Punjab Conciliation Courts Rules, 1982‑‑‑

‑‑‑‑R. 16‑‑‑Conciliation Courts Rules, 1962, R.20(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Revision against judgment of Conciliation Court was rejected on the ground that the petitioner had failed to attach the certified copy of the decree of impugned order alongwith revision petition‑‑‑Validity‑‑‑Duty was cast upon the petitioner to attach certified copy of the decree or order with revision petition as provided under R.16 of Punjab Conciliation Courts Rules; 1982 or R.20(2) of Conciliation Courts Rules, 1962‑‑‑Word "or" used in the Rules, had clearly revealed the intention of the Rule­making Authority, that either certified copy of the decree or order passed by the Conciliation Court be filed alongwith memorandum of the revision; word "or" was used by the Law‑making Authority in the sense of its being disjunctive‑‑‑If the certified copy of the order of Conciliation Court had been attached with the memorandum of the revision, revision petition was filed properly in terms of the Rules.

(b) Conciliation Courts Ordinance (XLIV of 1961)‑‑‑

‑‑‑‑S. 15(1)‑‑‑Proceedings before Conciliation Court‑‑‑Applicability of Civil Procedure Code, 1908 and Qanun‑e‑Shahadat, 1984‑‑‑Provisions of Qanun‑e‑Shahadat, 1984 and Civil Procedure Code, 1908 were not applicable to the proceedings before the Conciliation Court.

(c) Interpretation of statutes‑‑‑

‑‑‑‑"Or" and "and" ‑‑‑Connotation and distinction‑‑‑Word "or" signifies a disjunctive sense and it could not be read as "and" unless, of course, the context would provide so‑‑‑Words "and" and "or" though are interchangeable, but in ordinary usage the word "and" is conjunctive and the word "or" is disjunctive‑‑‑To implement the legislative intent, it may become imperative to read "and" in place of "or" and vice versa, but that could not be done if the meaning of the relevant provision of the statute was clear or if the said construction would operate to change the meaning of the law.

Statutory Construction by Crawford, 1940 Edn., pp.322‑323; Muhammad Sana Ullah v. Allah Din 1993 MLD 399; Ebrahim Brothers Ltd. v. Wealth Tax Officer, Circle III, Karachi and another PLD 1985 Kar. 407 and Abdul Qadir and others v. Seth Byramji D. Mama PLD 1963 (W.P.) Kar. 300 ref.

(d) Administration of justice‑‑‑

‑‑‑‑ Cases must be decided on merits instead of technicalities.

Manager, Jammu and Kashmir, State. Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 ref.

(e) Words and phrases‑‑‑

‑‑‑‑"Or" and "and" ‑‑‑Connotation and their inter changeability.

Taffazul H. Rizvi for Petitioner.

Malik Akhtar Hussain Awan, Addl. A.‑G. for Respondents.

2002 C L C 59

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

MUHAMMAD ZIA ‑‑‑Appellant

versus

Ch. NAZIR MUHAMMAD, ADVOCATE and 4 others‑‑‑Respondents

Intra‑Court Appeal No.21 of 2001 in Writ Petition No.22965 of 2000, decided on 10th September, 2001.

Per Mian Saqib Nisar, J.‑‑‑

(a) Electricity Act (IX of 1910)‑‑‑

‑‑‑‑S. 24‑‑‑Civil Procedure Code (V of 1908), S.35‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑­Constitutional petition‑‑‑Imposition of special costs‑‑‑Disconnection of electric supply‑‑‑Disconnection having been ordered by the Appellate Authority without prior notice to the consumer as envisaged under S.24 of Electricity Act, 1910, High Court issued direction for restoration of electric supply to the consumer and had imposed Rs.10,000 as costs upon the Authority to be paid to the consumer‑‑‑Authority in Intra‑Court Appeal had challenged only costs part of order of High Court contending that special costs under S.35‑A, C.P.C. could only be imposed as penalty, but not as a compensation‑‑‑Validity‑‑‑Authority by disconnecting electric supply without complying with the mandatory provisions of S.24 of Electricity Act, 1910, having unnecessarily dragged the consumer into litigation, it was a ‑clear encroachment upon the rights of the consumer which was without any basis and jurisdiction‑‑‑High Court in exercise of its extraordinary Constitutional jurisdiction; had ample power to do justice and to prevent the misuse or abuse of authority by the public functionaries‑‑‑Provisions of S.35‑A, C.P.C. in no way had limited the Constitutional jurisdiction of High Court and in appropriate cases Court could impose costs.

Per Ch. Ijaz Ahmad, J. agreeing‑‑‑

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

‑‑‑‑S. 35‑A‑‑‑Constitution of Pakistan (1973), Arts.4 & 199‑‑­Constitutional petition‑‑‑Imposition of special costs‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑‑High Court had ample jurisdiction to impose costs upon any party who approached the Court with ulterior motive or concealed material facts or on public functionary who passed the orders against the citizen in violation of the procedure prescribed under the law‑‑‑Public functionaries were duty‑bound and obliged to act in accordance with law as envisaged by Art.4 of Constitution of Pakistan (1973).

Khurshid Ahmad Naz Faridi v. Bashir Ahmed 1993 SCMR 639; Arwinder Singh Bagga v. State of U.P. and others AIR 1995 SC 117; Rudul Shah v. State of Bihar AIR 1983 SC 1086; Bhim Singh Mila v. State of Jammu and Kashmir AIR 1986 SC 494 and M.C. Mehta v. Union of India AIR 1987 SC 1086 ref.

Muhammad Ilyas Khan for Appellant.

2002 C L C 63

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SIDDIQUE and 5 others‑‑‑Petitioners

versus

MUHAMMAD NISAR and 2 others‑‑‑Respondents

Civil Revision No. 2130/1) of 1988, heard on 11th September, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Plaintiffs had alleged that defendant un-authorisedly and fraudulently procured a registered power of attorney from their illiterate and Pardahnashin mother and on basis of said power of attorney defendant gifted away land of their mother in favour of his son vide attested mutation and had prayed that power of attorney in favour of the defendant and mutation of gift in favour of his son should be declared illegal and void‑‑‑Suit was concurrently dismissed by the Courts below‑‑‑Validity‑‑‑Mother of the plaintiffs had her own children including sons‑‑‑Not a word was said either in the pleadings or in the statement of defendant's witness as to why mother of the plaintiffs would have gifted her land to the son of the defendant, especially when the defendant had not pleaded any love or affection for them and nor he had pleaded having rendered any service to that lady‑‑‑No evidence was available on record to show that relationship of the lady with her children was strained‑‑‑Both Courts below, in circumstances, had acted without lawful authority in dismissing concurrently suit filed by the plaintiffs‑‑­Only findings of fact recorded by the Courts below that mother of the plaintiffs did appoint defendant as an attorney and that he gifted away land to his son, were not enough to sustain the dismissal of the suit‑‑­Judgments and decrees of Courts below were set aside by the High Court in exercise of its revisional jurisdiction.

Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 ref.

Nemo for Petitioners. Respondents Ex parte.

Date of hearing: 11th September, 2001.

2002 C L C 66

[Lahore]

Bef9re Mian Saqib Nisar, J

MUHAMMAD AHSAN and 5 others‑‑‑Petitioners

versus

DAULAT KHAN and another‑‑‑Respondents

Civil Revision No. 1379 of 2001, decided on 6th September, 2001.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4, 15 & 21‑‑‑Transfer of Property Act (IV of 1882), Ss.54 & 118‑‑‑Suit for pre‑emption‑‑‑"Sale" and "exchange" of property‑‑­Distinction‑‑‑Suit was concurrently dismissed by the Trial Court and Appellate Court holding that transaction in question was not "sale" but was "an exchange" which was not pre‑emptible‑‑‑Validity‑‑‑Exchange of property was not amenable to pre‑emptory action and nothing would prevent a Court from holding that an alienation pertaining to be other than a sale, was in fact a sale ‑‑‑Provision of S.4, Punjab Pre‑emption Act, 1913 had clearly spelled out the intention of the Legislature not to allow a pre‑emption claim of any transaction other than a sale and it was only the sale which had been made subject of pre‑emptory action and no other transaction including "exchange" of an immovable property, was pre‑emptible‑‑‑Contention that in case where the transaction had been effected between Muslims as per Shariat Law, an "exchange" was to be considered as a "sale" and would be pre‑emptible, was repelled because the provisions of Punjab Pre‑emption Act, 1913 were applicable to all persons having right of pre-emption which included Hindus, Sikhs and persons of other religions and no distinction was provided in the Act to the effect that any transaction had been made by Muslims or others‑‑­Definition of "sale" under Muslim Common Law, could not .be imported in the Punjab Pre‑emption Act, 1913 for Laying. down a different scale and definition of the pre‑emption of the sale in cases of Muslim transferors, transferees and pre‑emptors‑‑‑Courts below taking into consideration evidence on record had concurrently concluded that transaction was "exchange" and not "sale" which conclusion was based on proper appreciation of evidence on record which could not be interfered with by High Court when no significant misreading and non‑reading of evidence had been pointed out by the petitioner.

Said Kamal's case PLD 1986 SC 360; Begum and others v. Muhammad Yakub and another 16 All. 344; Janki v. Girjadat and another 7 All. 482; Digest of Muhammadan Law by Baillie, p.475; Muhammadan Law by Mulla, para~232; Hedaya by Charles Hamilton pp.241; 243 and PLD 1986 SC 603 ref.

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

‑‑‑‑S. 115‑‑‑Re‑appraisal of evidence by revisional Court ‑‑‑Scope‑‑‑Re­appraisal of the evidence by the revisional Court to upset a concurrent finding of fact, was not permissible.

A.K. Dogar for Petitioner.

2002 C L C 84

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD YAQOOB and another‑‑‑Petitioners

versus

SHAH NAWAZ and 2 others‑‑‑Respondents

Civil Revision No.62‑D of 1991, heard on 6th August, 2001.

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

‑‑‑‑Ss. 8 & 42‑‑‑Transfer of Property Act (IV of 1882), Ss. 122 & 123‑‑­Land Reforms Regulation, 1972 (M.L.R.115), para.25‑‑‑Suit for possession and declaration‑‑‑Gift, validity of‑‑‑Case of the plaintiffs was that original owner of the suit property, comprising of agricultural land and a house had gifted away the same in their favour who were daughter and grandson of the donor and claimed that possession was delivered to them‑‑‑Defendants admitted that suit property was in the name of the donor, but denied the factum of the gift and contended that the gift was violative of M.L.R.115 and claimed that house was in their adverse possession for more than 12 years‑‑‑Defendants also contended that gift was bad qua the suit‑land being undivided share‑‑‑Validity‑‑‑Gift was evidenced by a registered document‑‑‑Defendants had failed to establish their claim of adverse possession over the suit house‑‑‑Land in question though was undivided share, but at the relevant time there was embargo upon partition of suit‑land as contained in M. L.R.115 and the gift would not be irregular on that ground as plaintiffs/donees being co‑sharers could always get their possession by filing a suit for partition‑‑‑Donor not only had delivered the possession of the subject‑matter of the gift to the plaintiff/donees, but she was residing with them in the house‑‑‑Possession of plaintiffs/donees over the suit‑land having been proved, Court below had rightly decreed the suit‑‑‑No case had been made out for interference with judgment and decree passed by Appellate Court in revisional jurisdiction of High Court.

(b) Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑

‑‑‑Para. 25‑‑‑Neither Civil Court nor the Revenue Officer would be having jurisdiction to declare a transaction to be violative of provisions of M. L.R,115.

Hakim Khan v. Aurangzeb and another PLD 1975 Lah. 1170 ref.

Malik Abdul Qayyum Khan for Petitioners. Talib Hussain Abbasi for Respondents:

Date of hearing: 8th August, 2001.

2002 C L C 88

[Lahore]

Before Tanvir Bashir Ansari, J

NOOR MUHAMMAD‑‑‑Appellant

versus

ABDUL GHANI-‑‑Respondent

Regular Second Appeal No.2 of 1977/BVIP, decided on 28th May, 2001.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 79‑‑‑Evidence Act (I of 1872). S.68‑‑‑Execution of document‑‑­Attesting witnesses‑‑ ‑Document was attested by two witnesses‑‑‑One of the two witnesses supported the execution of the document while the other witness denied the execution in his presence‑‑‑Effect‑‑‑Such evidence fell far short of the required standard to discharge the onus‑‑­Document was not proved in circumstances.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 53‑A‑‑‑Possession‑‑‑Protection of S.53‑A of Transfer of Property Act, 1882‑‑‑Protection was claimed on the basis of agreement to sell‑‑­Party in possession failed to prove the agreement‑‑‑Effect‑‑‑Where execution of the document was itself not proved, as a corollary the obtaining of possession under the agreement to sell did not arise‑‑­No protection as offered by S.53‑A of Transfer of Property Act, 1882, could be extended in circumstances.

Naib‑Subedar Taj Muhammad v. Yar Muhammad Khan and 6 others 1992 SCMR 1265 ref.

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

‑‑‑‑S. 45‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.79 & 129(e) ‑‑‑ Mutation, attestation of‑‑‑Presumption of truth‑‑‑Scope‑‑‑Where owner of land and attesting witness of sale‑deed denied the sale, such mutation would not have any probative value as the presumption stood rebutted in circumstances.

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

‑‑‑‑S. 45‑‑‑Entries in Roznamcha Waqiati‑‑‑Evidentiary value‑‑‑Where entry in Roznamcha Waqiati was not proved to have been made at the instance of the landowner and also not proved to have been signed by him, such entry would have no evidentiary value in circumstances.

(e) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 54‑‑‑Sale‑‑‑Validity‑‑‑No sale can be validated which is in violation of S.54 of Transfer of Property Act, 1882.

Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 distinguished. .

(f) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 2(d)‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Sale‑‑­Concept‑‑‑Concept of sale in Punjab Pre‑emption Act, 1991, does not correspond to the mandatory requirement of S.54 of Transfer of Property Act, 1882.

(g) Specific Relief Act (I of 1887)‑‑‑

‑‑‑‑S. 8‑‑‑Transfer of Property Act (IV of 1882), Ss.53‑A & 54‑‑‑Suit for joint possession‑‑‑Oral sale‑‑‑Protection of provision of S.53‑A of Transfer of Property Act. 1882‑‑‑Plaintiff denied execution of sale of suit land in favour of defendant and delivery of possession was also denied‑‑‑Defendant claimed to be in possession of suit‑land on the basis of oral sale made in his favour‑‑‑Suit was decreed by the Trial Court whereas the First Appellate Court allowed the appeal and judgment and decree passed by the Trial Court were set aside‑‑‑Validity‑‑‑Alleged sale having been made without registered sale‑deed offended against the provisions of S.54 of Transfer of Property Act, 1882`, and the same was ineffective upon the rights of the plaintiff ‑‑‑Khata in dispute was a joint Khata and it was not proved on record that possession of any specific piece of land was allegedly given to the defendant‑‑‑Effect‑‑‑Where evidence did not prove handing over of any specific area or portion out of joint Khata, the provision of .S.53‑A of Transfer of Property Act, 1882 was not attracted‑‑‑Judgment and decree passed by the Appellate Court was against the law and facts of the case and the same was set aside in circumstances.

Fazla v. Mehr Din and 2 others 1997 SCMR 837; Muhammad Amin and others v. Mian Muhammad PLD 1970 BJ 5 and Muhammad Ali and others v. Muhammad Amir PLD 1995 Lah. 124 ref.

Nadeem Iqbal Chaudhry for Appellant.

Ch. Abdul Sattar and Bashir Ahmad Chaudhry for Respondents.

Date of hearing:‑ 28th May, 2001.

2002 C L C 107

[Lahore]

Before Mian Hamid Farooq, J

HAMID RAZI SARWAR‑‑‑Petitioner

versus

ROHI SARWAR and others‑‑‑Respondents

Civil Revisions Nos.1601, 1602 of 2000 and Civil Miscellaneous Nos.441‑C and 442‑C of 2001, decided on 10th September, 2001.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 21‑‑‑Reference to Arbitrator‑‑‑Application in writing to Court for reference‑‑‑Pre‑condition‑‑Under the provision of S.21 of Arbitration Act, 1940, it is a condition precedent for referring any matter to the Arbitrators that all the parties must agree to refer the same to the Arbitrators and all of them are also under legal obligation to file such application before the Court.

Messrs S.M. Qasim & Co. v. Messrs Sh. Azimuddin PLD 1962 (W.P.) Lab. 95; Allah Bakhsh v. Mst. Shamshad Begum and 2 others 1990 MLD 1937 and.Mst. Hashmat Bibi v. Muhammad Rafi and another 1980 CLC 967 ref.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 47, proviso‑‑‑Reference to Arbitrator without intervention of Court‑‑‑Principles‑‑‑To get the benefit of proviso to S.47 of Arbitration Act, 1940, award must be obtained with the consent of all the parties interested.

Jugaldas Damodar Modi & Co. v. Pursottam Umedbhai & Co. AIR 1953 Cal. 690 ref.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 21‑‑‑Word "suit" as used in S.21 of Arbitration Act, 1940‑‑­Scope‑‑‑Word "suit" used in S.21 of the Arbitration Act, 1940 includes appeal, revision and, thus, includes appellate or revisional Court, as the case may be.

Messrs United Builders Corporation v. Azad Jammu and Kashmir Mineral and Industrial Development Corporation and another 1989 CLC 1825 ref.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 21, 23 & 47‑‑‑Arbitration proceedings ‑‑‑Pendency of revision before High Court‑‑‑Failure to file application under S.21 of Arbitration Act, 1940, for reference to Arbitrator‑‑‑Respondents denied joining of any arbitration proceedings rather they stated to be ignorant of the proceedings‑‑‑Contention of petitioners was that the revision be decided in terms of award announced by the Arbitrator‑‑‑Validity‑‑‑Such arbitration proceedings were violative of Ss.21, 23 & 47 of Arbitration Act, 1940, and the award procured, while the proceedings in the revision petitions were pending before High Court, without the intervention of the Court was nullity‑‑‑Award so procured could not be made rule of Court in accordance with the provisions of Ss.14 & 17 of Arbitration Act, 1940‑‑‑Where all the parties interested consented to the award, the same could be used as a compromise/adjustment of the suit‑‑‑Application was dismissed in circumstances.

Hashmat Ali v. Muhammad Rafi and others 1982 CLC 2377 ref.

Ch. Muhammad Aslam Sandhu for Petitioner. Ch. Muzammal Khan for Respondents.

2002 C L C 119

[Lahore]

Before Mian Hamid Farooq, J

AHMAD BAKHSH‑‑‑Petitioner

versus

NASIR,KHAN and others ‑‑‑Respondents‑

Civil Revision No .1873 of 2001, decided on 27th September, 2001.

(a) Interpretation of statutes‑‑‑

‑‑‑‑ Provision of law couched with consequences on its non‑compliance is mandatory.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 24‑‑‑Suit for pre‑emption ‑‑‑Petitioner deposited 1/3rd of pre‑emption money one day after expiry of 30 days‑‑‑Trial Court rejected the plaint an Appellate Court dismissed the‑ appeal filed by petitioner ‑‑‑Validity‑‑­Provisions of S.24, Punjab Pre‑emption Act, 1991, being mandatory in nature, its non‑compliance would result into dismissal of plaint‑‑‑Time for deposit of 1/3rd pre‑emption money having been statutorily fixed, same could not be extended or enlarged even by Court nor any discretion vested with Court to extend same‑‑‑Petitioner was aware before filing of suit that he would have to deposit 1 3rd of pre-emption money within 30 days from the date of filing of suit, for which he should have been ready‑‑‑Petitioner had violated mandatory provision of law by failing to deposit 1/3rd of pre­-emption money within period fixed by statute itself, therefore, he had to face its consequences in shape of rejection of plaint‑‑‑Conduct of petitioner in attempting _ to deposit amount on the last day, if not contumacious, was surely indolent‑‑‑Petitioner 'was not vigilant and had to suffer the consequences‑‑‑Both the judgments and decrees being in accordance with' law, did not call for interference by High Court in revisional jurisdiction‑‑‑Revision petition was dismissed in circumstances.

Malik Hadayat Ullah and 2 others v. Murad Ali Khan PLD 1972 SC 69 ref.

Bashir Abbas Khan for Petitioner.

2002 C L C 123

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. ASGHARI SULTANA‑‑‑Petitioner

versus

Chaudhry SHAMIM AHMAD and 2 others‑‑‑Respondents

Writ Petition No.1885 of 1999, heard on 20th August, 2001.

Dissolution of Muslim Marriage Act (VIII of 1939)‑‑

‑‑‑‑‑S. 2(ii)‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑‑Suit for dissolution of marriage on ground of non‑payment of maintenance‑‑‑Court, whether has power to impose any condition on wife‑‑­Record proved that the plaintiff (wife) was entitled to maintenance, but had not been maintained by the husband for a period of more than two years‑‑­Plaintiff, in circumstances, was entitled to dissolution of marriage on that ground‑‑‑Once it was found that wife was entitled to dissolution of marriage on ground of non‑maintenance, any direction by the Court to the plaintiff lady to forego her dower and maintenance, would be utterly without lawful authority.

Mrs. Naheeda Mehboob Elahi for Petitioner. Raja Ali Akbar Khan for Respondent No. 1. Sardar Muhammad Aslam: Amicus curiae.

Date of hearing: 20th August, 2001.

2002 C L C 127

[Lahore]

Before Ch. Ijaz Ahmad, J

AMANAT KHAN‑‑‑Petitioner

versus

SUB‑REGISTRAR and others‑‑‑Respondents

Constitutional Petition No. 12708 of 2001, decided on 24th September 2001.

Registration Act (XVI of 1908)‑‑‑

‑‑‑‑Ss. 71, 72 & 77‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Refusal to register sale‑deed by the Sub‑Registrar‑‑­Constitutional petition was challenged on the ground that the same was not maintainable as the petitioner had alternative remedies of suit and appeal under the relevant provisions of the Registration Act, 1908‑‑­Validity‑‑‑Order impugned was passed by the Sub‑Registrar without applying mind to the facts of the case, by giving no reason and without considering the report of his subordinate‑‑‑Sub‑Registrar was obliged under provisions of S.24‑A of General Clauses Act, 1897, to redress the grievance of the citizen with reason‑‑‑Order passed by the Sub‑Registrar in violation of mandatory provisions of S.24‑A of General Clauses Act, 1897, was not maintainable in the eye of law‑‑‑Petitioner though had alternative remedies of suit and appeal, but it was not absolute rule that in presence of an alternative remedy, the Constitutional petition was not maintainable.

Messrs Airport Support Service v. The Airport Manager, Quaid­e‑Azam, International Air Port, Karachi and others 1998 SCMR 2268 ref.

M.A. Zafar for Petitioner. Malik Maqbool Elahi, A.‑G., Punjab. Sher Zaman, Dy. A.‑G. for Pakistan for Respondents. Malik A.M. Awan, A.A.‑G.

2002 C L C 129

[Lahore]

Before Mian Saqib Nisar, J

Dr. AMIR ALI MALIK ‑‑‑Appellant

versus

Messrs TRANSPAK CORPORATION LTD. ‑‑‑Respondent

First Appeal from Order No. 105 of 1992, heard on 30th August, 2001.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 20, 26‑A, 30 & 39‑‑‑Making award rule of the Court‑‑‑Grounds for setting aside the award‑‑‑Appeal against judgment of the Trial Court‑‑‑Award pronounced and signed by the Arbitrator was made rule­ of the Court by the Court rejecting objections to the award filed by the appellant and decree was granted in favour of the respondent‑‑‑Award was objected to alleging that the Arbitrator being an interested person, was disqualified to act as such and to pronounce the award and that the Arbitrator had committed an error of misreading and non‑reading of evidence produced before him; that the Arbitrator had taken into consideration the photocopies of the cheques issued by the appellant and allegedly dishonoured by the Bank and in absence of the original, photocopies of the cheques were inadmissible in evidence; that Arbitrator had wrongly awarded compensation/damages to the respondent and that the Arbitrator had violated the provisions of S.26‑A of Arbitration Act, 1940‑‑‑Validity‑‑‑Appellant had failed to prove by producing any evidence that the Arbitrator had any .interest in the matter and was disqualified to act as an Arbitrator and as regards objection to consider photocopies of cheques, it was sufficient to say that issuance of the cheques had not been disputed by the respondent and at the time cheques were accepted on the record by the Arbitrator, no objection was raised by the respondent‑‑‑Even otherwise provisions of Qanun‑e‑Shahadat, 1984 being not applicable to the arbitration proceedings, even if the photo copies were taken on record by the Arbitrator and had been relied upon by him, it could not be said that proceedings stood violated‑‑­Arbitrator having taken pains to give the reasons in granting amount which was qua the dishonoured cheques it could not be said that provisions of S.26‑A of Arbitration Act, had been violated‑‑‑Objection with regard to award of compensation/damages, was upheld because the Arbitrator, just on the basis of his assumption, had awarded that amount for which no valid reasons had been given in the award, to that extent the award was bad and could not be made rule of the Court, except to that extent. Arbitrator, while pronouncing his award, had not committed any error of misreading or non‑reading of record before him which could result in vitiating the award‑‑‑Award to the extent of granting compensation/damages was set aside and was upheld for the remaining amount.

Ashfaq Ali Qureshi's case 1985 SCMR 597 ref.

Riaz Karim Qureshi for Appellant. Iftikhar Ahmad Dar for Respondent.

Date of hearing: 30th August, 2001.

2002 C L C 134

[Lahore]

Before Ch. Ijaz Ahmad, J

Sh. AZHAR MAHMOOD‑‑‑Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary, Local Government and Rural Development, Civil Secretariat, Lahore and 2 others‑‑‑Respondents

Writ Petition No.6665 of 1992, heard on 16th July, 2001.

(a) Constitution of Pakistan (1973)‑‑­

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑High Court has no jurisdiction to resolve the disputed question of facts in Constitutional jurisdiction, Mustahkam Cement v. Zila Council Rawalpindi 1992 CLC 1176; I.C.I. Pakistan Ltd. v. Zila Council, Jhelum 1992 CLC 458; Raja Muhammad Ramzan v. Zila Council, Attock PLD 1992 Lah. 324; I.C.I. Pakistan Ltd. v. Zila Council, Jhelum 1993 SCMR 454 and Muhammad Younus Khan and 12 others v. Government of N.‑W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618 ref.

(b) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑Ss. 13, 139 & 166‑‑‑Punjab Local Council Taxation Rules, 1980, Rr.3 & 4‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Enhancement of taxes‑‑‑Petitioner had challenged order of the Authority whereby rate of taxes on certain items was enhanced‑‑‑Petitioner had the alternative remedy of appeal before Competent Authority tinder provisions of S.166 of Punjab Local Government Ordinance, 1979 and Rules framed thereunder, in presence of said alternative remedy Constitutional petition was not maintainable.

Raja Muhammad Ramzan's case 1994 SCMR 1484; Raja Muhammad Ramzan's case 1994 MLD 930; I.C.I. Pakistan's case 1993 MLD 32; Kh. Abdul Waheed's case PLJ 1978 Lah. 253; Muhammad Ismail's case PLD 1996 SC 246; Syed Sabir Shah and others v. Shah Muhammad Khan PLD 1995 SC 66; Collector Customs, Karachi v. New Electronic (Pvt.) Ltd. and others PLD 1994 SC 363 and Riffat Askari v. The State PLD 1997 Lah. 285 ref.

Munawar H. Awan on behalf of original counsel for Petitioner.

Nemo for Respondents.

Date of hearing: 16th July, 2001.

2001 C L C 137

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD RAZZAQ‑‑‑Petitioner

versus

Mst. NAUREEN BIBI and another‑‑‑Respondents

Writ Petition No.2435 of 2000, decided on 16th July, 2001.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑ Constitutional petition‑‑‑Suit for dissolution of marriage on ground of Khula'‑‑‑Family Court decreed the suit. subject to the return of golden ornaments to husband, but Appellate Court on appeal modified the decree of the Family Court by removing the condition of return of golden ornaments to the husband‑‑‑Husband had never demanded that the ornaments be returned to him as a consideration of Khula'‑‑‑Husband was required not only to prove benefits given by him to his wife as a result of marriage, but he should specifically demand the return of the same‑‑‑Decree passed by the Family Court was rightly modified by the Appellate Court by removing the condition of return of golden ornaments to the husband.

Dilshad v. Mst. Nusrat Nazir and another PLD 1991 SC 779 ref.

Ghulam Habib Rana for Petitioner.

Mansoor‑ul‑Islam Khatak for Respondent No.1

2002 C L C 139

[Lahore]

Before Ijaz Ahmad Chaudhary, J

BASHIR AHMED ‑‑‑Petitioner

Versus

Chaudhry GHULAM SARWAR NOOR, M.I.C., LAHORE and 3 others‑‑‑Respondents

Writ Petitions Nos.2653, 2654 and 2829 of 1991, decided on 10th September, 2001.

Punjab Vagrancy Ordinance (XX of 1958)‑‑‑

‑‑‑‑S. 7‑‑‑Constitution of Pakistan (1973), Arts.2A, 4, 10, 15, 25 & 199‑‑‑Constitutional petition‑‑‑Arrest and search of vagrants‑‑‑Restriction on begging‑‑‑Violation of Fundamental Rights‑‑‑Petitioners who were of tender age, were rounded up by the police and were detained under relevant provisions of Punjab Vagrancy Ordinance, 1958‑‑‑Vires of various provisions of the Ordinance were challenged by the petitioners on the ground that same were in violation of the Fundamental Rights guaranteed by the Constitution of Pakistan (1973), as those had encroached upon the free movement and free choice of profession of the citizens‑‑‑Validity‑‑‑Begging as envisaged by Punjab Vagrancy Ordinance, 1958 had been disapproved by Islam because beggars using fraudulent means of begging were professionals and even though able bodied they prepared to remain idle‑‑‑Begging had not been approved by Islam except in the case of stress and dire necessity and begging by use of fraudulent means was condemned‑‑‑Provisions of Punjab Vagrancy Ordinance, 1958 were not repugnant to the Injunctions of Islam ‑and it could not be said that the Ordinance was either contrary to Fundamental Rights or was violative of Injunctions of Islam.

PLD 1985 FSC 344 ref.

(b) Legislation‑‑‑

‑‑‑‑ Making of law‑‑‑State could classify the people for the purpose of Legislation and make law applicable only to persons of particular class.

Asfand Yar Walt's case PLD 2001 SC 607 ref.

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

‑‑‑‑Art. 25‑‑‑Reasonable classification‑‑‑Making of law‑‑‑State should classify the people for the purpose of legislation and make law applicable only to persons of particular class.

Ms. Asma Jahangir for Petitioner.

Muhammad Shan Gull for A.A.‑G. for Respondents.

Date of hearing: 26th June, 2001.

2002 C L C 143

[Lahore

Before Mian Hamid Farooq, J

SULEMAN MASHKOOR --- Petitioner

versus

ABDUL GHAFOOR and others----Respondents

Writ Petition No.2625 of 1993, heard on 19th September, 2001.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.2(c)---"Landlord"---Meaning and connotation of.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 2(c)(i) & 13---Ejectment---Relationship of landlord and tenant--­Proof---Person asserting himself to be landlord of a building and claiming that a particular person is tenant under him has to establish either through documentary evidence or unimpeachable oral evidence that said particular person is his tenant---Mere bald assertions regarding relationship of landlord and tenant would not be enough.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan (1973), Art. 199-Constitutional petition ---Ejectment of tenant---Denial of relationship of landlord and tenant---Rent Controller passed ejectment order against petitioners, which was confirmed by Appellate Court relying upon ownership of respondents qua the house in question---Validity---"Ownership" and "land lordship" of a person are two distinct expressions in law conveying different meanings---No documentary evidence was led to prove relationship of landlord and tenant between the parties' and mere bald assertions by respondents' witnesses regarding such relationship could not be of any avail---Entire thrust of such witnesses was regarding ownership of respondents qua the house in question, who might be owners but not landlords thereof---Respondents had failed to prove that relationship of landlord and tenant existed between the parties within the parameters of law---Impugned judgments suffering from non-reading and misreading of evidence on record warranted interference by High Court in exercise of its Constitutional jurisdiction, which were set aside by accepting the Constitutional petition.

Ch. Muhammad Sadiq for Petitioner.

Khalid Mehmood Ansari for Respondents.

Dates of hearing: 18th and 19th September, 2001.

2002 C L C 159

[Lahore]

Before Maulvi Anwarul Haq, J

BOARD OF GOVERNORS, DIVISIONAL PUBLIC HIGH SCHOOL, LYALLPUR‑‑‑Appellant

versus

Sh. FAZAL HUSSAIN & COMPANY‑ ‑‑Respondent

First Appeal from Order No. 158 of 1970, heard on 1st October, 2001.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 20‑‑‑Civil Procedure Code (V of 1908), S.21‑‑‑Award by Arbitrator‑ ‑‑Territorial jurisdiction of Trial Court‑‑‑Objection to‑‑­Arbitrator was appointed on joint request of parties and neither any objection was raised to the territorial jurisdiction of the Trial Court at the time of the appointment, nor any appeal was filed against the appointment‑‑‑Validity‑‑‑Where the Arbitrator was appointed on the joint request of the parties, the appellant stood debarred from raising objection to the territorial jurisdiction of the Trial Court deciding the application under S.20 of the Arbitration Act, 1940‑‑‑Appeal was dismissed accordingly.

Ashfaq Ali Qare0i v. M.C., Multan 1985 SCMR 597 ref.

(b) Jurisdiction‑‑‑

‑‑‑‑ Inherent jurisdiction and irregular jurisdiction ‑‑‑Distinction‑‑­Distinction has to be drawn between want of inherent jurisdiction and irregular exercise or assumption of jurisdiction because the former does render the decree a nullity but the latter cannot be impugned in a collateral action and it can be set aside only in proceedings like appeal.

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

‑‑‑‑S. 21‑‑‑Territorial jurisdiction‑‑‑Objection‑‑‑Scope‑‑‑Such objection cannot be allowed by an Appellate Court unless there has been a consequent failure of justice as a result of assumption of territorial jurisdiction by wrong Court.

(d) Arbitration‑‑‑

‑‑‑‑ Remanding award to Arbitrator‑‑‑Mistake of law or fact‑‑‑Where Arbitrator was chosen by the parties who preferred a domestic Tribunal which was not bound rigidly by the rules of evidence, therefore, a mistake of law or fact was not, per se, a ground for sending back the award of such a Tribunal.

Muhammad Aslam Sindhu for Appellant.

Riaz Karim Qureshi for Respondent.

Date of hearing: 1st October, 2001.

2002 C L C 165

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

Messrs AMIN ICE FACTORY through Chief Executive and 4 others‑‑‑Appellants

versus

NATIONAL BANK OF PAKISTAN‑‑‑Respondent

Regular First Appeal No.564 of 1999 and Civil Miscellaneous No. l of 2001, decided on 3rd October, 2001.

Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S. 13‑‑‑Appeal‑‑‑Court‑fee, refund of‑‑‑Appeal was disposed of as withdrawn‑‑‑Contention of the appellant was that the court‑fee affixed on the appeal be returned‑‑‑Since the appeal was not decided on merits, High Court, in accordance with the principle laid down by Supreme Court in the case titled Sh. Riaz‑ud‑Din v. Aqil‑ur‑Rehman Siddiqui reported in PLD 1993 SC 76, directed the office to issue the certificate for refund of court‑fee to the appellant‑‑‑Appeal was disposed of accordingly.

Sh. Riaz‑ud-Din v. Aqil‑ur‑Rehman Siddiqui PLD 1993 SC 76 ref.

Malik Imran Nazir for Appellants.

Nemo for Respondents.

Muhammad Hanif Khatana, A.A.‑G.

2002 C L C 197

[Lahore]

Before Jawwad S. Khawaja, J

Messrs AVARI HOTELS LTD., Owners and Operators of Avari Hotels, Lahore‑‑‑Petitioner

versus

PROVINCE OF PUNJAB through Secretary, Excise and Taxation Department, Punjab, Lahore and 2 others‑‑‑Respondents

Writ Petition No. 16465 of 2001, decided on 4th October, 2001.

West Pakistan Immovable Property Tax Act (V of 1958)‑‑‑

‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Recovery of enhanced property tax without show‑‑cause notice to the party‑‑‑Validity‑‑‑Contention of the petitioner was that if the Department would issue notice and hear the petitioner, the petitioner's grievance would be redressed‑‑‑Department had agreed to issue a fresh show‑cause notice affording an opportunity of hearing to the petitioner‑‑­Notice for the enhanced demand of the tax was set aside by High Court‑‑­Constitutional petition was allowed accordingly.

Tariq Kamal Qazi for Petitioner.

Zahid Aslam Khan, Asstt. A.‑G. for Respondents.

2002 C L C 198

[Lahore]

Before Muhammad Akhtar Shabbir, J

M. JAVED DAULAT ZAI‑‑‑Petitioner

versus

RETURNING OFFICER/ADDITIONAL DISTRICT AND SESSIONS JUDGE, BAHAWALPUR and 3 others‑‑‑Respondents

Writ Petitions Nos.1211, 1212 and 1275 of 2001/BWP, decided on 16th March, 2001.

(a) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14‑‑‑Punjab Local Government Elections Rules, 2000, Rr.13(2), 16(1), 16(6) & 16(7)‑‑‑Qualification of candidates‑‑‑Two nomination papers, filing of‑‑‑Candidate for the seat of Nazim filed two nomination papers and was not proposed by the same proposed in both the nomination papers‑‑‑Validity‑‑‑Where candidate was proposed and seconded by different persons in both nomination papers, bar contained in R.16(7) of the Punjab Local Council Elections Rules, 2000 was not attracted to the case‑‑‑No embargo on filing more than one nomination paper exists for the same seat of local councillor as well as for filing nomination papers for two different seats but after .the election, the elected person had to retain one seat only‑‑‑Nomination papers filed by candidate for more than one seat were rightly accepted.

(b) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14‑‑‑Punjab Local Government Elections Rules, 2000, Rr. 13(2), 16(1), 16(6) & 16(7)‑‑‑Qualification of candidates‑‑‑Two nomination papers, filing of‑‑‑Validity‑‑‑No bar under the law exists against filing more than one nomination paper in the same electoral ward‑‑‑Person intending to contest election for the post of Nazim, Naib‑Nazim or a member of a Union Council, can file more than one nomination paper but the only restriction is that if any person subscribes as a proposed or seconder to more than one nomination paper, all such nomination papers, except the one received first by the Returning Officer would be void.

(c) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R.19‑‑‑Bar against double membership‑‑‑Filing of more than one nomination papers‑‑‑Scope‑‑‑No bar on filing of more than one nomination paper exists for one seat or for different seats‑‑‑Bar in the law is that if the candidate is holding an office, he must resign before filing his nomination paper to the new office.

(d) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 13(2), 16(1), 16(6), 16(7) & 20‑‑‑Qualification of candidates‑‑­Filing of more than one nomination papers‑‑‑Effect‑‑‑No penalty under the election laws is provided for filing more than one nomination paper provided these were filed under different proposers and seconders.

(e) Interpretation of statutes‑‑‑

‑‑‑‑ Special law and general law‑‑‑When special law is silent on some point, then the guidance can be taken from the general law and in that case provisions of general law are attracted to the case.

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

‑‑‑‑Art. 223‑‑‑Double membership‑‑‑Bar against a person is not prevented under the provisions of Art.223 of the Constitution from being a candidate for two or more seats‑‑‑Such member within a period of 30 days after he is elected to the last seat, is required to resign from all but one of the seats and if he does not do so, all the seats to which' he has been elected become vacant after the period of 30 days except the seat to which he has been elected last.

Muhammad Ahmad Kham for Petitioner.

Ch. Riaz Ahmed for Respondents Nos.3 And 4.

2002 C L C 204

[Lahore]

Before Amir Alam Khan, J

Messrs SAUDI ARABIAN AIRLINES through

Sales Manager, Lahore and another‑‑‑Petitioners

versus

Miss HIRA KHAN and another‑‑‑Respondents

Civil Revision No. 1893 of 1997, decided on 24th August, 2001.

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

‑‑‑S. 9‑‑‑Territorial jurisdiction‑‑‑Objection‑‑‑Objection as to the territorial jurisdiction is definitely a root question, and the same should have been decided at the earliest without taking a step further in the proceedings.

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

‑‑‑‑Ss. 9, 20(ii) & O.VII, Rr.10,. 11‑‑‑Territorial jurisdiction‑‑­Corporation having registered office outside Pakistan‑‑‑Suit against the Corporation instituted in Pakistan‑‑ ‑Objection was raised to the maintainability of the suit on the ground that the Courts in Pakistan lacked territorial jurisdiction over the matter‑‑‑Application for rejecting/returning of the plaint was disposed of by the Trial Court by framing issues on the total controversy between the parties including pleas forming subject‑matter of the application‑‑‑Validity‑‑‑Question of territorial jurisdiction was a mixed question of fact and law which could not be decided otherwise than recording evidence‑‑‑Trial Court had not committed any illegality while framing issues on the said questions but had definitely committed illegality in the exercise of its jurisdiction while proposing to decide the issues along with the issues on merits‑‑‑Questions forming subject‑matter of the Corporation's application under O.VII; Rr.10 & 11, C.P.C. being root questions should have been tried at the earliest without taking any further step in the proceedings‑‑‑High Court directed the Trial Court to decide the issues relating to territorial jurisdiction and lack of cause of action as preliminary issues‑‑‑Revision was dismissed accordingly.

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

‑‑‑‑O. VII, R.1‑‑‑Plaint‑‑‑Failure to sign and court‑fee on the first date‑‑‑Effect‑‑‑Plea that the court‑fee had not been paid or that the plaint was not properly signed and verified might not be of any consequence as the court‑fee had been paid and the same would be deemed to have been paid tan the date of filing of the plaint‑‑‑Signing or verification of the plaint was a minor irregularity which could be cured by obtaining proper signatures on the plaint.

Talmiz S. Burney and Tariq Mahmood Mughal for Petitioners.

Respondents: Ex parte.

Date of hearing: 9th May, 2001.

2002 C L C 214

[Lahore]

Before Syed Zahid Hussain, J

Mst. RAHIM‑UN‑NISA‑‑‑Petitioner

versus

MEMBER, BOARD OF REVENUE, PUNJAB

(SETTLEMENT AND REHABILITATION)

WING/CHIEF SETTLEMENT COMMISSIONER, PUNJAB, LAHORE and 2 others‑‑‑Respondents

Writ Petition No. 211/R of 1991, decided on 24th September, 2001.

Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Constitution of Pakistan (1973), Art.199‑­Constitutional petition‑‑‑Cancellation of allotment‑‑‑Principle of natural justice, violation of‑‑‑ Non‑providing the opportunity of rebutting the material relied upon by Settlement Authorities while passing cancellation order‑‑‑Application against the petitioner was' filed before the Settlement Authorities alleging that the petitioner had committed fraud for the allotment of the disputed property‑‑‑Petitioner relied upon Jamabandi for the year 1961‑62 in which she was shown to be in possession of the disputed property, whereas the Authorities relied upon Jamabandi for the year 1957‑58, which was produced by the respondent along with his written arguments‑‑‑Allotment of disputed property was cancelled by the Authorities on the basis of the material produced by the respondent‑‑‑Contention of the petitioner was that she was condemned unheard and no opportunity was provided to rebut the said material‑‑‑Validity‑‑‑Where right to be apprised of adverse material and right to rebut and controvert the same had been denied. to the petitioner, contention of the petitioner was not without substance‑‑‑Adjudication so made by the Settlement Authorities did not fulfill the requirements of and was in negation of the principle of natural justice‑‑‑For recording a finding as to the commission of fraud, there had to be a clear basis for the same and definite finding in clear terms ought to have been recorded by affording full opportunity to the petitioner‑‑‑High Court in exercise of Constitutional jurisdiction refrained from embarking upon inquiry into factual realm or appreciation of evidence‑‑‑Order passed by the Authorities being illegal and without lawful Authority matter was remitted to the Settlement Authorities for deciding the same afresh after affording opportunity of hearing to both the parties. ‑‑‑[Fraud].

Iftikhar Hussain and others v. Mian‑ Irshad Ali and others 1987 SCMR 2059; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531 and Administrative Law by H.W.R. Wade and C.F. Forsyth, Eighth Edn. 2000, p.506 ref.

Ch. Khurshid Ahmad and Ch. Shahbaz Khurshid for Petitioner.

Ch. Muhammad Abdullah for Respondent No.2.

Dates of hearing: 14th, 17 and 18th September, 2001.

2002 C L C 226

[Lahore]

Before Ejaz Ahmad Chaudhary, J

Major (Rtd.) MUHAMMAD SULEMAN KHAN‑‑‑Petitioner

Versus

D.C./REGISTRAR, LAHORE DISTRICT‑‑‑Respondent

Writ Petition No.3549 of 1993, decided on 14th September, 2001.

Stamp Act (II of 1899)‑‑‑

‑‑‑‑S. 27‑A‑‑‑Notification Memo. No. HRC/20277, dated 20‑10‑1992‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Charging of stamp duty as per revised rates prescribed by the Collector‑‑‑Refusal to register sale‑deed in compliance of execution of decree‑‑‑Sale‑deed was presented to Sub‑Registrar for registration and the property was valued at the rate which was accepted by the Court‑‑‑Sub‑Registrar raised objection to the valuation of the property and directed the petitioners for affixing the valuation as per rates prescribed by the Collector vide Notification Memo. No.HRC/20277, dated 20‑10‑1992‑‑‑Validity‑‑‑Valuation was not duly notified and had not been published in the Official Gazette, thus, the same had no legal effect‑‑‑Notification could only be taken as having legal effect if it had duly been published in the Official Gazette‑‑­Where the Notification was not published in the Official Gazette, the same could not be accepted under S.27‑A of the Stamp Act, 1899‑‑­Sub‑Registrar was not competent to ignore the decree of the Court or to dictate his own terms and could not direct the party to pay additional stamp duty on the self‑inflated rates calculated on surmises and conjectures‑‑‑Such demand was illegal, of no legal effect and the same was set aside‑‑‑High Court directed the Sub‑Registrar to register the sale‑deed after calculating total consideration fixed by the Court as the amount of property on which it was sold‑‑‑Petition was allowed in circumstances.

1999 CLC 450; 1995 CLC 674; 1995 CLC 187 and 1993 CLC 2073 ref.

Tahir Malood Khokhar for Petitioner.

Muhammad Jehangir Wahia, A.A.‑G.

2002 C L C 231

[Lahore]

Before Mansoor Ahmad, J

MUHAMMAD AMIN ‑‑‑Petitioner

versus

MUHAMMAD YASIN and another‑‑‑‑Respondents

Civil Revision No.948 of 1991, heard on 8th August, 2001.

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

‑‑‑‑Art. 185(3)‑‑‑Leave granting order by the Supreme Court is not a precedent.

(b) Punjab Pre‑emption Ordinance (V of 1990)‑‑‑

‑‑‑‑Ss. 13 & 30‑‑‑Suit for pre‑emption ‑‑‑Limitation‑‑‑Sale of suit‑land though took place prior to the promulgation of Punjab Pre‑emption Ordinance, 1990, providing limitation period of four months for filing suit from the date of registration of sale‑deed, but suit was filed by the pre‑emptor after a period of eight months and three days from the date when sale took place during the period when Punjab Pre‑emption Ordinance, 1990 providing limitation of four months had already been enforced‑‑‑Suit was rightly dismissed being barred by limitation in circumstances.

Bashir Ahmad v. Nazeer Ahmad Khan 2000 SCMR 1850; Muhammad Hussain and others v. Muhammad and others 2000 SCMR 367; 1993 CLC 2053; 1993 CLC 105; PLD 1994 Lah. 263; 1993 SCMR 1083; 2001 CLC 1291; Sarup Singh and another v. Pal Singh and another AIR 1923 Lah. 642 and Yow Bon Tev v. Kenderaan Bas Mara 1983 PSC 1200 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑In absence of any illegality, infirmity or material irregularity in concurrent judgments of the two Courts below, revision petition filed before High Court was devoid of any merits and was liable to be dismissed.

(d) Precedent‑‑‑

‑‑‑‑ Leave granting order by the Supreme Court is not a precedent.

Malik Noor Muhammad Awan for Petitioner.

Malik Muhammad Qasim Joya for Respondents.

Date of hearing: 8th August, 2001.

2002 C L C 233

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

Messrs MODERN CONTINENTAL BUSINESS (PVT.)

LIMITED through Chief Executive‑‑‑Appellant

versus

GOVERNMENT OF PAKISTAN through

Secretary, Ministry of Finance, Revenue and

Economic Affairs, Pak Secretariat, Islamabad and another‑‑‑Respondents

Intra‑Court Appeals Nos.552 and 551 of 2000, decided on 24th September, 2001.

(a) Law Reforms Ordinance (XII of 1972)‑‑‑

‑‑‑‑S. 3‑‑‑Intra‑Court appeal‑‑‑Maintainability‑‑‑Single Judge of High Court dismissed the Constitutional petition in view of a case decided by Supreme Court which was subsequently set aside by Supreme Court in review proceedings‑‑‑Judgment of Single Judge, in circumstlan7es, was not in accordance with law as laid down by the Supreme Court in the review petition‑‑‑Bar contained in proviso to S.3 of Law Reforms Ordinance, 1972 was not attracted in the case.

Government of Pakistan through Ministry of Finance and Economic Affairs and another v. Facto Belarus Tractors Limited 2000 SCMR 112 and Pir Bakhsh's case PLD 1987 SC 145 ref.

(b) Estoppel‑‑‑

‑‑‑‑Question of estoppel would not arise against the law.

Nauman Akram Raja for Appellant.

Jawaher A. Naqvi for Respondents.

2002 C L C 244

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ILYAS LODHI‑‑‑Petitioner

versus

PRESIDENT, ISLAMIC REPUBLIC OF PAKISTAN, ISLAMABAD

and 2 others‑‑‑Respondents

Writ Petition No.2421 of 2001, heard on 6th August, 2001.

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

‑‑‑‑Art. 32‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Repayment of amount of loan‑‑‑Demand of service charges‑‑­Amount of loan sanctioned to the petitioner for construction of house was paid by the petitioner before expiry of one year period, but Authority raised a demand of amount as service charges ‑‑‑Petitioner approached Federal Mohtasib with the plea that there was no term in the agreement between the parties justifying the amount of service charges when he had repaid the entire loan before the stipulated period ‑‑‑Mohtasib/ Ombudsman, after hearing the matter, recorded findings that demand of service charges amounted to maladministration in the absence of any provision in the contract to the contrary‑‑‑On filing representation by the Authority before President of Pakistan, it was found that demand by the Authority could not be termed as maladministration and finding of the Wafaqi Mohtasib/ Ombudsman was set aside‑‑‑Validity‑‑‑Ombudsman had recorded a finding with reasons that the agreement between the parties being not based on concept of payment of interest, the Authority could not demand amount, as service charges‑‑‑Order passed by the President of Pakistan did not disclose any reason as to how it had been found that demand by the Authority could not be termed as maladministration ‑‑‑Order of President of Pakistan which did not answer any of the reasoning furnished by the Ombudsman was set aside by the High Court.

Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2744 and 1999 SCMR 2189 ref.

Petitioner in person.

Qazi Ahmad Naeem Qureshi; Federal Counsel

2002 C L C 247

[Lahore]

Before Mansoor Ahmad, J

MUHAMMAD YASIN‑‑‑Appellant

versus

AMANAT KHAN‑‑‑Respondent

Regular Second Appeal No. 746 of 1977, decided on 1st October, 2001.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 21 & 30‑‑‑Limitation Act (IX of 1908), Art.10‑‑‑Suit for pre­emption ‑‑‑Limitation‑‑‑Agreement to sell suit land though was executed in favour of vendee in 1966, but the vendee got the mutation of sale sanctioned in his favour in 1971‑‑‑Suit filed by the pre‑emptor in 1972 within one year from the attestation/sanction of mutation in favour of vendee was not barred by limitation because agreement to sell could not be said to be a registered instrument of sale as envisaged under Art .10, Limitation Act, 1908‑‑‑Limitation for filing suit would not start from execution/registration of agreement to sell but would start from the date of attestation/sanction of mutation of sale or when physical possession of the whole property sold was delivered.

(b) Interpretation of statutes‑‑‑

‑‑‑Provisions of law should not be interpreted to defeat the right of the citizen or encourage devious conduct of the parties.

Sardar Muhammad Anwar for Appellant.

Ghulam Rasool Mian for Respondent.

Date of hearing: 17th September, 2001.

2002 C LC 250

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD SHAM and another ‑‑‑ Petitioners

versus

MUHAMMAD ANWAR and 7 others ‑‑‑ Respondents

Writ Petition No. 37 of 1989/BWP, heard on 17th November, 2000.

Specific Relief Act (I of 1877)‑‑‑

----S. 12‑‑‑Civil Procedure Code (V of 1908), S. 12(2) & O. III, Rr. 1, 4‑‑­Constitution of Pakistan (1973), Art.199 ‑‑‑ Constitutional petition ‑‑‑ Suit for specific performance of contract ‑‑‑ Application for setting aside decree on allegation of fraud ‑‑‑ Parties, during the pendency of the suit, entered into a compromise and recorded their statements to that effect through their counsel and suit was decreed in terms of the compromise ‑‑‑ Plaintiffs filed application under S.12(2), C.P.C. for setting aside the decree on the ground that they had not authorized their counsel to make the statement‑‑­Said application was dismissed to the extent of five defendants, but was accepted to the extent of sixth defendant‑‑‑Revision filed against said judgment having been dismissed, Constitutional petition had been filed against judgment passed in revision‑‑‑Validity‑‑‑Contention of plaintiffs/petitioners that they had not authorized their counsel to make statement was devoid of any force as their counsel was duly appointed and as such was authorized to make statement on their behalf‑‑­Concurrent judgments of Courts below arrived at after scrutiny of evidence on record and not suffering from any irregularity or material irregularity, could not be interfered with in Constitutional jurisdiction of High Court.

Dilshad v. Additional District Judge, Multan and others 1986 SCMR 1396; Mst. Zaidat v. Shahadat and others 1989 SCMR 1392; Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 199 , I SCMR 970 and Hasan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65 ref.

Aijaz Ahmad Chaudhry for Petitioners.

Respondents Nos.1 to 5: Ex parte.

Ch. Abdus Sattar for Respondent No.6.

Date of hearing‑, 17th November, 2000.

2002 C L C 254

[Lahore]

Before Maulvi Anwarul Haq, J

Haji NOOR MUHAMMAD KHAN‑‑‑Petitioner

versus

S.A. MAJEED and another‑‑‑Respondents

Writ Petition No. 1731 of 2001, heard on 2nd August, 2001

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

‑‑‑‑S.17(8)‑‑‑Tentative rent order after framing issues by the Rent Controller‑‑‑ Validity‑ ‑‑Contention of tenant that Rent Controller had no jurisdiction to pass tentative rent order after he had framed the issues, was repelled because mere fact that said order was passed after framing of issues, would not render the same void‑‑‑Omission of Rent Controller to pass an order for deposit of rent before framing of issues would not mean that he was deprived of jurisdiction to do so at a subsequent stage.

Altaf Amin v. Qazi Muhammad Naeem and 4 others PLD 1987 Pesh. 148; Kohitex (Pvt.) Ltd. v. Muhammad Mukhtar and 2 others 1995 CLC 781 and Mst. Mahmooda Begum v. Mst. Mahmooda Jan 1973 SCMR 131 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑ Interlocutory order‑‑‑ Constitutional petition could not be maintained against an interlocutory order.

Muhammad Saeed v. Mst. Saratul Fatima and another PLD 1978 Lah. 1459 ref.

Ibadur Rehman Lodhi for Petitioner.

Hafiz Hafizur Rehman for Respondent No. 1.

Date of hearing: 2nd August, 2001.

2002 C L C 263

[Lahore]

Before Abdul Shakoor Paracha, J

GHULAM AMIR‑‑‑Appellant

versus

IIZSHAD AHMAD and others‑‑‑Respondents

Regular Second Appeal No. 35 of 1994, decided on 1st October, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 96 & 100‑‑‑Limitation Act (IX of 1908), Ss. 5, 14 & Art. 156‑‑­West Pakistan Civil Courts Ordinance (II of 1962), S.18 [as amended by Punjab Civil Courts Ordinance (Amendment) Act (V of 1986)]‑‑­Appeal‑‑‑Limitation‑‑‑Increase in pecuniary jurisdiction of District Judge during pendency of appeal‑‑‑Effect‑‑‑Decree of Trial Court was challenged before District Judge, who due to lack of pecuniary jurisdiction returned memorandum of appeal to the appellants for presentation before proper forum‑‑‑High Court in revision filed by appellants remanded the case for hearing appeal on its merits including question of limitation‑‑‑Additional District Judge dismissed the appeal on grounds of limitation and lack of pecuniary jurisdiction ‑‑‑Validity‑‑­Decree was passed on 13‑4‑1986 and limitation for filing appeal before High Court was 90 days, which could be filed up to 31‑7‑1986‑‑­Appellants had one month's time on 14‑6‑1986 to approach the High Court, when S.18 of Civil Courts Ordinance, 1986 was amended, whereby pecuniary jurisdiction of District Judge to hear appeal was enhanced from Rs.50,000 to Rs.2 lacs‑‑‑Pecuniary jurisdiction of District Judge had been increased while passing order dated 28‑3‑1988 for return of appeal, which order was later on set aside by High Court in revision‑‑­Question of limitation in such circumstances, lost significance and appeal before District Judge would be deemed to have been presented within time‑‑‑High Court accepted second appeal and set aside the impugned judgment and decree and remanded the case to Additional District Judge for its decision on merits.

Daraz Ali and another v. Nathoo Khan 1982 SCMR 1219 and Mirza Muhammad Saeed v. Shahab‑ud‑Din and 8 others PLD 1983 SC 385 ref. '

Khan Muhammad Bajwa for Appellant.

Ch. Muhammad Naeem for Respondents Nos. 1 to 3.

Ch. Naseer Ahmad Siddique for Respondents Nos. 7 and 8.

Date of hearing: 1st October, 2001.

2002 C L C 266

[Lahore]

Before Maulvi Anwarul Haq and Mian Hamid Farooq, JJ

MUHAMMAD ASHRAF, Proprietor Messrs Ashraf & Company‑‑‑Petitioner

versus

SUB‑REGISTRAR‑I, DISTRICT COURTS, GUJRANWALA and 4 others‑‑‑Respondents

Writ Petition No. 6543 of 1994, decided on 11th September, 2001.

Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981‑‑‑

‑‑‑‑Rr. 9 & 4‑‑‑Punjab Board of Revenue Memo. No. 1525‑93/2152­ST(1), dated 9‑8‑1993‑‑‑Punjab Government Notification No.S.O.V.I(L.G.)‑97, dated 2‑6‑1991‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Tax on the transfers of immovable property made through gift deed‑‑‑Exemption‑‑‑Extent‑‑‑Gift of immovable property made, if not covered under the exemption provided under R.9, Punjab Local Government (Tax on Transfer of Property) Rules, 1981, was liable to be taxed‑‑‑Principles‑‑‑Memorandum of the Board of Revenue Punjab No. 1525‑93/2152‑ST(1), dated 9‑8‑1993 having no legal value, was declared, to be illegal by the High Court ‑‑‑[Mubarak Ahmad v. Sub‑Registrar, District Courts, Faisalabad and 4 others 1993 CLC 1666 dissented from].

Mubarak Ahmad v. Sub‑Registrar, District Courts, Faisalabad and 4 others 1993 CLC 1666 dissented from.

Ch. Khurshid Ahmad for Petitioner.

Muhammad Jahangir Wahlah, A.A.‑G. for Respondents.

Date of hearing: 11th September, 2001.

2002 L C 270

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD SHARIF‑‑‑Petitioner

versus

JUDGE, FAMILY COURT, BAHAWALPUR and 3 others‑‑‑‑Respondents

Writ Petition No. 3158 of 2000/BWP, heard on 28th March, 2001

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

‑‑‑‑Ss. 5, Sched. & 14‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Recovery of maintenance‑‑‑Suit for‑‑‑Trial Court decreed suit and granted maintenance for minors at the rate of Rs.700 per month each‑‑‑Defendant/petitioner had filed Constitutional petition against judgment and decree of the Trial Court‑‑­Maintainability of petition was challenged by respondent‑‑‑Validity‑‑‑Had the maintenance allowance of each minor been fixed up to Rs.500 p.m. the appeal under S.14 of West Pakistan Family Courts Act, 1964 could not be filed and the only remedy was to challenge the said order by way of filing Constitutional petition‑‑‑If the maintenance allowance of each minor was fixed at the rate of Rs.700 per month, only recourse available to defendant/petitioner was first to go to the District Judge by filing appeal and thereafter he could approach the High Court if he had felt aggrieved of the decision of Appellate Court‑‑‑Defendant/petitioner having not resorted to the legal recourse, Constitutional petition was dismissed being not maintainable.

Khawaja Muhammad v. District Judge, Mansehra and others 2001 MLD 310 ref.

Khan Muhammad Hussain Azad for Petitioner Abdul Jalil Khan for Respondents.

Date of hearing: 28th March, 2001

2002 C L C 279

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD SHAFEEQ‑‑‑Petitioner

versus

MEMBER, BOARD OF REVENUE (COLONIES), PUNJAB, LAHORE and another‑‑‑Respondents

Writ Petition No. 1296 of 1989/BWP, heard on 29th March, 2001.

Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss.10 & 11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Cancellation of allotment of land‑‑‑Land in dispute was allotted to the allottee vide allotment order and proprietary rights were also conferred upon him‑‑‑Allotment was subsequently cancelled on the application of Mukhbar mainly on the ground that allottee was a minor at the time of allotment in his favour‑‑‑Authority while coming to the conclusion that the allottee was minor, had placed reliance upon School Leaving Certificate as well as Form B filed with Registration Office which were annexed with the application of Mukhbar‑‑‑Allottee got himself medically examined from Medical Superintendent, District Headquarters Hospital and was adjudged to be of 24 years' old at the time of allotment in his favour‑‑‑Such aspect of the matter was not taken into consideration by the Authority while cancelling the allotment‑‑‑Land allotted to the allottee having been cancelled after 11 years of its allotment on the ground that the allottee was a minor, without adopting proper procedure regarding the determination of his age, order cancelling allotment was set aside in the interest of justice and case was remanded with direction to the Authorities to get allottee medically examined from a competent surgeon and to dispose of the matter in accordance with law.

Raja M. Sohail Iftikhar for Petitioner.

M.A. Farazi for Respondents.

Date of hearing: 29th March, 2001.

2002 C L C 285

[Lahore]

Before Ghulam Mehmaod Qureshi, J

MUHAMMAD SHARIF through Legal Heirs and 5 others‑‑‑Petitioners

Versus

NAWAB ALI and 2 others‑‑‑Respondents

Civil Revision No.2359 of 2000, heard on 25th September, 2001.

Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 4‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Succession‑‑­Entitlement of grandsons to get their share from the inheritance left by their grandfather‑‑‑ Respondents/grandsons of the deceased were declared owners of 1/4th share in property left by the deceased grandfather in the order passed by Appellate Court‑‑‑Petitioners who were sons of the deceased had challenged the order passed by Appellate Court in revision filed before the High Court, contending that in view of the 'dictum laid down by the Federal Shariat Court in case reported as Allah Rakha and others v. Federation of Pakistan PLD 2000 FSC 1, the respondents were not entitled to get any share from the inheritance left by their grandfather as S.4 of Muslim Family Laws Ordinance, 1961 had been declared repugnant to Injunctions of Islam by the Federal Shariat Court‑‑­Contention of the petitioner was repelled because the date given in the said judgment of Federal Shariat Court from, where S.4 of Muslim Family Laws Ordinance, 1961 would cease to have effect was 31‑3‑2000 and the judgment had no retrospective effect‑‑‑Grandfather of the respondents died in 1969 and mutation of inheritance was sanctioned in 1970 and respondent had filed suit to inherit their share in 1981 and since then they were pressing for their rights‑‑‑Federal Shariat Court having power to make a declaration to give effect to its judgment only from a future specified date, would leave the pending proceedings ineffective‑‑­Decision of Federal Shariat Court would not take effect before the date specified by it in the decision‑‑‑Prior to that date neither‑the decision would take effect nor the lady would cease to have effect and the relevant law would continue to remain in force till the day prior to the date fixed by the Court‑‑‑Inheritance of the deceased having opened in 1969, respondents being grandsons of the deceased were entitled to inherit his estate under S.4 of Muslim Family Laws Ordinance, 1961, which was very much in force at the relevant time‑‑­Judgment and decree passed by Appellate Court being just and correct, could not be interfered with in revisional jurisdiction of High Court.

Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1; Muhammad Akbar v. Iftikhar Gillani PLD 1991 SC 71; Muhammad Masood Khan Bhatti v. Mst. Ghulam Fatima 1987 SCMR 1206; Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287; Nusrat Wahid and 3 others v. Administrator, Thal, Bhakkar 1980 CLC 334; Taj Deen and 8 others v. Karim Bakhsh and 11 others 2000 SCMR 1463 and Nazeef v. AbMM haffar and others PLD 1966 SC 267 ref..

Abdul Aziz Qureshi for Petitioners.

Ch. M. Anwar Bhindar for Respondents.

Date of hearing: 25th September, 2001.

2002 C L C 295

[Lahore]

Before Tanvir Bashir Ansari, J

GHULAM MUHAMMAD ‑‑‑ Petitioner

versus

Malik ABDUR RASHID and 2 others‑‑‑Respondents

Civil Revisions Nos. 119‑D and 150‑D of 1990/BWP, heard on 15th August, 2001.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Concurrent findings of fact‑‑­Effect‑‑‑Concurrent findings of fact arrived at by Courts below would be conclusive and would not be open to challenge in revisional jurisdiction without pointing out any specific misreading or non‑reading of evidence on record.

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

‑‑‑‑O. I, R. 10(2)(5)‑‑‑Adding defendants in suit for damages‑‑­Limitation‑‑‑Suit for recovery of damages for causing injury by negligent driving filed against original defendant/driver was within time‑‑‑Original defendant stated to be an employee of Government Transport Service and Punjab Road Transport Board, plaintiff impleaded them‑as defendants‑‑­Objection that suit against newly‑added defendants was time‑barred was repelled, because such impleadment would not be material circumstances and that judgment and decree passed in plaintiff's favour was jointly and severally against defendant/driver and Punjab Road Transport Board/Corporation.

(c) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), Ss.96 & 115‑‑‑"Time requisite"‑‑‑ Connotation‑‑‑Filing of appeal‑‑‑Limitation‑‑‑Certified copy of judgment and decree of Trial Court dated 7‑10‑1987 was applied for on 17‑10‑1987, which was prepared and ready for delivery on 26‑11‑1987, but petitioner obtained its delivery on 17‑12‑1987‑‑­ Appellate Court fund the appeal filed on 19‑12‑1987 as time‑barred‑‑­Validity‑‑‑Time requisite to obtain copy of judgment and decree had commenced from the date of application submitted for obtaining certified copy,, which had ended on the day when it was prepared and was ready for delivery‑‑‑Negligence of a party in obtaining delivery of such copy at his leisure could not be counted as "time requisite" under the law‑­‑Record did not show that petitioner was misled by any act of Copying Agency‑‑‑High Court dismissed revision petition in circumstances.

(d) Tort---

‑‑‑‑Claim for damages on account of injury by negligent driving of defendant‑‑‑Trial Court decreed the suit holding the evidence produced by plaintiff to be confidence inspiring and trustworthy, and defendant's plea that no accident took place was found to be fallacious‑‑‑Medical evidence had proved the fracture on plaintiff's bone‑‑‑Plea of contributory negligence or want of care and caution on the part of plaintiff was of no avail to defendant as he had denied the very occurrence of accident‑‑‑Question of quantum of damages depended upon judicial conscience of the Court trying the case‑‑‑Appellate Court as a final Court of fact had examined the evidence on record again and concurred with findings of Trial Court‑‑‑Such findings would not be open to challenge in revisional jurisdiction without pointing out any specific misreading or non‑reading of evidence‑‑‑Revision petition was dismissed in circumstances‑‑‑Civil, Procedure Code (V of 1908), S.115.

Nemo for Petitioner.

Malik Muhammad Aslam and M. Shamshir Iqbal Chughtai for Respondents Nos.2 and 3.

Date of hearing: 15th August, 2001.

2002 C L C 304

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD SAIFULLAH KHAN‑‑‑Petitioner

versus

APPELLATE AUTHORITY, B.N.S.P.

LOCAL COUNCILS ELECTIONS, DISTRICT RAHIM­

YAR KHAN/DISTRICT AND SESSIONS JUDGE, RAHIMYAR KHAN and 2 others‑‑‑Respondents

Writ Petition No. 1190 of 2001/BWP, decided on 13th March, 2001.

(a) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑S. 18(4)‑‑‑Appeal filed before Appellate Authority against order of Returning Officer accepting nomination papers‑‑‑Competency‑‑‑Remedy of appeal under R.18(4) of Punjab Local Government Elections Rules, 2000, was available only against rejection of nomination papers, but no such remedy had been provided against acceptance of nomination papers‑‑‑Notification issued by Chief Election Commissioner providing appeal against acceptance of nomination papers would not have the effect to override statutory provisions of law not providing such remedy.

(b) Appeal‑‑‑

‑‑‑‑ Remedy of appeal/review/revision is the creation of some Act, Ordinance or Rules made thereunder, which cannot be created through notification nor such notification would have the effect to override statutory provisions of law not providing such remedy.

Petitioner in person.

2002 C L C 310

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD AFZAL ‑‑‑ Petitioner

versus

DISTRICT JUDGE/DISTRICT RETURNING OFFICER, SARGODHA

and 3 others‑‑‑Respondents

Writ Petition No. 14302 of 2001, heard on 2nd November, 2001.

Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 8(a)(c)‑‑‑Punjab Local Government Elections Rules, 2000, Rr.42, 43 & 70‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Petitioner's name was notified in Gazette Notification as successful candidate on Muslim General seat, and he took oath of his office‑‑‑District Returning Officer subsequently, on the basis of direction issued by Provincial Election Commissioner deprived the petitioner of his success as General Councilor and in his place declared the respondent as successful candidate of non‑Muslim seat‑‑‑Validity‑‑‑Provincial Election Commissioner did not figure anywhere in the Punjab Local Government Ordinance, 2000, and he could not pass any direction to District Returning Officer for change of result and deprive any successful candidate of his success‑‑‑Returning Officer and District Returning officer after publication of notification of election in Gazette, had become functus officio, and the only remedy available was that of filing of an election petition under R.70 of Punjab Local Government Elections Rules, 2000‑‑‑High Court accepted Constitutional petition and declared order of District Returning Officer and direction of Provincial Election Commissioner as without lawful authority and jurisdiction.

Dr. M. Mohy‑ud‑Din Qazi for Petitioner

Date of hearing: 2nd November, 2001.

2002 C L C 312

[Lahore]

Before Nasim Sikandar, J

MESSERS PETROSIN RAVI INDUSTRIES LIMITED‑‑‑Appellant

versus

CUSTOMS, CENTRAL EXCISE AND SALES TAX

(APPELLATE) TRIBUNAL, LAHORE and 3 others‑‑‑Respondents

Appeal No.290 of 2001, decided on 16th October, 2001

(a) Central Excises Act (I of 1944)‑‑‑

‑‑‑‑S. 3(1) & First Sched.‑‑‑S.R.O. No.501(I)/94, dated 9‑6‑1994‑‑­S.R.O. No.456(I)/96, dated 13‑6‑1996‑‑‑Containers made of steel and iron for compressed or liquefied gas‑‑‑Levy of duty‑‑‑Such type of goods manufactured and cleared by assessee were covered by P.C.T. Heading No.7311.0000, and were liable to central excise duty Q10% ad valorem by virtue of S.R.O. No.456(I)/96, dated‑13‑6‑1996 ‑‑‑Goods mentioned in Heads Nos.7309.0000 and 7310.0000 covered various types of storage tanks and containers except those properly falling under P.C.T. Heading 7311.0000‑‑‑Where both general and specific heads were applicable, then specific head would be invoked.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Tax charging provisions‑‑‑Exemption granting provisions‑‑‑Principles of interpretation‑‑‑ Ambiguity in tax charging provisions ought to be resolved in favour of assessee‑‑‑Exemption granting provisions pre­supposes levy of duty, therefore, the burden of proof would squarely lie on the person claiming exemption, and while interpreting such provisions, Courts would lean towards the Revenue rather than assessee.

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

(c) Taxation‑‑‑

‑‑‑‑ Duty payable under both general and specific heads ‑‑‑Applicability‑‑­Where goods fell under both specific and general heads, then the specific head should be invoked.

Mian Nazir Azhar for Appellants.

A. Karim Malik for the Revenue.

ORDER

2002CLC318

[Lahore]

Before Syed Jamshed Ali, J

Mst. KHUDIJA SHAMIM AKHTAR and 2 others‑‑‑Petitioners

versus

MUHAMMAD SARWAR and 14 others‑‑‑Respondents

Civil Revision No. 1312 of 1990, decided on 13th August, 2001.

(a) Easements Act (V of 1882)‑‑‑‑

‑‑‑‑Ss. 13 & 28‑‑‑Punjab Municipal Act (III of 1911), S.3(13)(a) & (b)‑‑­Public street/passage (a) defined in Municipal Laws)‑‑‑Creation of public 'street/passage‑‑‑ Principles‑‑‑Even if a street of a passage over land is not a declared public street within the meaning of Municipal Laws, a public street can come into existence by express dedication .of the owner of the land for the use by public.

Qazi Muhammad Ishaq v. Abdul Waheed PLD 1975 Pesh. 82; Jatindra Nath Borat and another v. Corporation of Calcutta AIR 1931 Cal. 433; Rana Ganpat Singh v. Kangra Valley Slate Co. 62 PR 1898 and Kumman and another v. Stijan Singh AIR 1938 Lah. 619 ref.

(b) Easements Act (V of 1882)‑‑‑

‑‑‑‑Ss. 13 & 28‑‑‑Specific Relief Act (I of 1877), S.54‑‑‑Public passage‑‑­Obstruction of‑‑‑Judgment at variance‑‑‑Dispute was with regard to use of suit land as public streets/passages‑‑‑Defendants claimed to have purchased the whole Khasra Nos. and no public street was included in the same‑‑‑Trial Court, on the basis of evidence available on record, was of the view that the previous owners had abandoned the suit land for the purpose of public streets and the area used as streets was not included in the sale‑deed executed in favour of the defendants, hence, the suit‑was decreed‑‑‑Appellate Court reversed the findings recorded by the Trial Court and allowed the appeal‑‑‑Validity‑‑‑Where suit land was established to be a passage for the residents dedicated by the previous owners and the defendants had not purchased the entire area of the Khasra No., the defendants had no right to convert the disputed land to their exclusive use by closing the streets‑‑‑Appellate Court had erred in assuming that the plaintiffs were before the Court to enforce a right of easement when in fact they were seeking injunction against obstruction of public passage‑‑­Judgment and decree passed by the Appellate Court were set aside.

(c) Easements Act (V of 1882)‑‑‑

‑‑‑‑S. 4‑‑‑Right of way and public passage‑‑‑Distinguished‑‑‑Public right of way being unconnected with a dominant tenement is a right in gross and clearly distinguishable from easement.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Maintainability‑‑‑Filing of revision petition without power of attorney on behalf of all petitioners‑‑‑Validity‑‑‑Where the power of attorney on behalf of remaining petitioners was filed subsequently, the defect was cured‑‑‑Revision was maintainable in circumstances.

Muhammad Farooq Qureshi Chishti for Petitioners.

M. Mehmood for Respondents Nos. l to 4.

Sarfraz Ali Khan for Respondents Nos.5 to 15.

Date of hearing: 16th May, 2001.

2002 C L C 333

[Lahore]

Before Sheikh Abdur Razzaq, J

KHAN MUHAMMAD and another‑‑‑Petitioners

versus

MUNAWAR HUSSAIN and another‑‑‑Respondents

Civil Revision No. 186‑D'of 1983/BWP, heard on 22nd November, 2000.

(a) Canal and Drainage Act (VIII of 1873)‑‑‑

‑‑‑‑S. 20‑‑‑Shifting of water outlet (Moga)‑‑‑Presence of affected parties in proceedings‑‑‑Effect‑‑‑Where orders for shifting of water outlet (Moga) were passed in presence of affected parties, violation of the provisions of S.20 of the Canal and Drainage Act, 1873, was not relevant.

Ghulam Muhammad and others v. Hafiz Ahmed and others PLD 1960 (W.P.) Lah. 1179; Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61 and Ghazanfar Khan and others v. Taj Muhammad and others 1970 SCMR 139 ref.

(b) Canal and Drainage Act (VIII of 1873)‑‑‑

‑‑‑‑S. 20‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Civil Procedure Code (V of 1908), O.I, R.10‑‑‑Suit for declaration‑‑‑Proper and necessary parties‑‑‑Order for shifting of water outlet (Moga)‑‑‑Failure to implead the officers making the order‑‑‑Effect‑‑‑Where the officers who passed the order for shifting of water outlet (Moga) were not impleaded as defendants in the suit the plaint was not properly constituted‑‑‑Suit was rightly dismissed by the Appellate Court.

Zulfiqar Ali and another v. Superintending Engineer, Multan and others PLD 1957 (W.P.) Lah. 703; Mst. Maqbool Bibi v. Ibrahim and others 1982 SCMR 78; Fateh Muhammad and others v. Muhammad Bashir and others 1968 SCMR 1220 and Muhammad Ishaq and 13 others v. Muhammad Iqbal and 3 others PLD 1975 Lah. 1314 ref.

Ch. Abdus Sattar for Petitioners.

M.M. Bhatti for Respondents.

Date of hearing: 22nd November, 2000.

2002 C L C 342

[Lahore]

Before Muhammad Nawaz Abbasi, J

MUHAMMAD SHAVEZ KHAN and another‑ ‑‑Petitioners

versus

DISTRICT RETURNING OFFICER, ATTOCK a and another‑‑‑Respondents

Writ Petition No.2588 of 2001, heard on 31st July, 2001.

(a) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑R. 18(3)‑‑‑Nomination papers, rejection of‑‑‑Procedure‑‑‑Returning Officer or Appellate Authority, as the case may be under the provisions of R.18(3) of the Punjab Local Government Elections Rules, 2000, may, either suo motu or upon any objection, conduct summary inquiry before rejection of nomination papers, to satisfy himself that the candidate is not qualified to be elected as a member for any of the reasons mentioned in the Punjab Local Government Elections, Rules, 2000.

(b) Punjab Local Government Elections Ordinance (V of 2000)‑‑­

‑‑‑‑R. 14(i)‑‑‑Punjab Local Government Elections Rules, 2000, R.18(3)‑‑­ Transfer of Property Act (IV of 1882), S.54‑‑‑Constitution of Pakistan (1973), Art‑199 ‑‑‑Constitutional petition‑‑‑Nomination papers, rejection of‑‑‑Declaration of assets‑‑‑ Nomination papers of the candidate were rejected by Appellate Authority on the ground that the assets declared by the candidate did not include certain properties which, existed in his name‑‑‑Plea raised by the candidate was that although the properties were in the name of the candidate, yet the same had already been sold vide unregistered deed and possession of the same had been delivered to the vendees‑‑‑Validity‑‑‑Where payment of consideration and delivery of possession were fulfilled, the transaction would constitute a "sale" under the provisions of S.54 of the Transfer of Property Act, 1882, notwithstanding that the same was oral or in writing‑‑‑Matter relating to legal defect in sale being between vendor and vendee, the Returning Officer would not be required to go into the question of defective title‑‑­ Question whether the properties in question would be deemed to be the properties of the candidate due to defect in the document through which proprietary rights were transferred by him and would affect his candidature .would not be answerable without proper determination of the question of title by competent forum on the basis of evidence‑‑‑Where the evidence relied upon by the parties was rebuttable, the same would not be a conclusive proof of title‑‑‑Candidate, in the present case, having entered into transaction of sale passed title and non‑incorporation of title of the vendor in official record would neither undo the transaction nor affect the candidature of the candidate as such the disputed assets were not being possessed by the candidate on the day of filing of the nomination papers and exclusion of the same from declaration with bona fide belief that same was no more property of the candidate would not be a disqualification under S.14(i) of the Punjab Local Government Elections Ordinance, 2000‑‑‑Order of the Appellate Authority whereby nomination papers of the candidate were rejected, was illegal and of no consequence and the same was set aside‑‑‑Constitutional petition was allowed in circumstances.

(c) Punjab Local Government Elections Rules, 2000‑‑­

‑‑‑‑R. 18‑‑‑Nomination papers, scrutiny of‑‑‑Title of property declared by the candidate‑‑‑Determination‑‑‑Such question being purely a question of fact cannot be decided without recording of 'evidence and cannot be determined in summary process of scrutiny of nomination papers.

(d) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑Rr. 18 & 70-‑‑Election petition‑‑‑Pre‑election disqualification‑‑­Adjudication of‑‑‑In addition to process of scrutiny of nomination papers, pre‑election disqualification to become candidate in local bodies can also be adjudicated through the remedy of election petition, if the candidate succeeds.

Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456; Muhammad Shafique v. Muhammad 1989 CLC 1318; AIR 1936 Mad. 918; PLD 1971 SC 516; 1985 CLC 2481; 1988 MLD 2047; 1992 SCMR 1265; PLD 1995 Lah. 124 and PLD 1997 Lah. 709 ref.

Muhammad Ilyas Siddiqui and Mustafa Ramday for Petitioners

Ch. Zammurad Hussain and Raja Saeed Akram Khan, A.A.‑G. for Respondents.

Date of heating: 31st July, 2001.

2002CLC361

[Lahore]

Before Syed Jamshed Ali, J

JAMAL DIN alias MUHAMMAD JAMAL‑‑‑Petitioner

Versus

Mst. MAHMOODA BEGUM‑‑‑Respondent

Civil Revision Petitions Nos. 1283‑D and 1284‑D of 1989, heard on 4th October, 2001.

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

‑‑‑‑O. VI, R.4‑‑‑Suit for cancellation of agreement to sell‑‑‑Plea that defendant in collusion with petition‑writer had converted mortgage deed into agreement to sell‑‑‑Trial Court and Appellate Court dismissed the suit‑‑‑Validity‑‑‑Plaintiff neither led any evidence to support such plea nor during cross‑examination suggested to defendant that agreement was outcome of fraud or collusion‑‑‑Plaintiff's own admission that he had handed over sale‑deed in his favour and PTD in favour of his vendor to defendant, whereas in case of mortgage, delivery of such documents would not have been required‑‑‑Particulars of fraud had not been given in plaint as required by O.VI, R.4, C.P.C.‑‑­Agreement had concurrently been found to have been proved, which was not liable to be cancelled, thus, suit had rightly been dismissed‑‑‑Such finding was not open to any exception, High Court dismissed the revision petition.

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

‑‑‑‑O. VI, R.17‑‑‑Amendment of pleadings ‑‑‑Suo motu power of Court‑‑­Power to direct amendment in the pleadings is available to the Court even suo motu under the provisions of O.VI, R.17, C.P.C.

(c) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 53‑A‑‑‑Agreement to sell‑‑‑Party can defend his possession delivered under agreement to sell under S.53‑A of Transfer of Property Act, 1882, but cannot press such agreement as a sword.

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

‑‑‑‑Ss. 42 & 12‑‑‑Transfer of Property Act (IV of 1882), S.53‑A‑‑­Civil Procedure Code (V of 1908), O.VI, R.17‑‑‑Agreement to sell‑‑‑Suit for declaration of title‑‑‑Maintainability‑‑‑Two suits were filed with respect to same property one by respondent for declaration of her title on the basis of agreement to sell and the other by petitioner for cancellation of such agreement‑‑‑Trial Court and Appellate Court dismissed the respondent's suit being not maintainable, whereas petitioner's suit was dismissed on the ground that agreement to sell having been proved was not liable to be cancelled‑‑‑Validity‑‑‑Respondent was entitled to defend her possession obtained under agreement to sell under S.53‑A of Transfer of Property Act, 1882, but she could not press such agreement as a sword, thus, her suit for declaration was not maintainable‑‑‑Dismissal of both the suits had given rise to a situation, where neither respondent would be able to perfect her title nor could petitioner obtain possession from respondent because of protection available to her under S.53‑A of Transfer of Property Act, 1882‑‑‑Such a situation had to be avoided by directing the respondent to amend her plaint by claiming relief of specific performance in exercise of sup motu power available to Court under provisions of O.VI, R.17, C.P.C.‑‑‑High Court set aside impugned judgment and decree, and allowed the respondent to amend prayer paragraph of plaint to claim relief of specific performance, paragraph relating to valuation of suit for purpose of court‑fee and jurisdiction and to pay proper court‑fee, if attracted‑‑‑Case of respondent was remanded to Trial Court for ~tt, decision afresh in accordance with law after allowing petitioner to‑raise all pleas of law and fact in defence to suit for specific performance, framing further issues if necessary and allowing the parties to lead further evidence.

Ahmed Din v. Muhammad Shafi and others PLD 197 ref.

Muhammad Sharif Chohan for Petitioner.

Ch. Bashir Ahmed for Respondent.

Date of hearing: 4th October, 2001.

2002 C L C 372

[Lahore]

Before Muhammad Sair Ali, J

EHMATULLAH‑‑‑Petitioner

versus

ALLAH RAKHA and 18 others‑‑‑Respondents

Civil Revision No.759 of 1993, heard on 21st September, 2001.

Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 54‑‑‑Sale of property by joint owner in possession of specific Khasra numbers‑‑‑Joint owner in possession of specific Khasra numbers was competent to sell the same to a vendee so long as such joint owner/vendor, did not sell land exceeding his share in the joint holding.

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9; Shah Hussain v. Abdul Qayum and others 1984 SCMR 427; Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 SC (AJ&K) 75 and Chaudhary Ghulam Abbas v. Barkat Ali and another 1999 YLR 2190 ref.

Petitioner in person.

Ch. Amir Hussain for Respondent No. 1.

Respondents Nos. 14 to IS in person.

Date of hearing: 21st September, 2001.

2002 C L C 384

[Lahore]

Before Syed Zahid Hussain, J

Syed AHMAD NUSRAT ULLAH and others‑‑‑Petitioners

versus

MEMBER, BOARD OF REVENUE and others‑‑‑Respondents

Writ Petition No.210‑R of 1991, decided on 24th September, 2001.

Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2‑‑‑Ccnnstitution of Pakistan (1973), Art.199‑‑­Constitutional petition--‑Cancellation of allotment‑‑‑Suo motu jurisdiction of Settlement Authorities exercise of‑‑‑On Mukhbari application against wife of the allottee, the allotment in the name of the allottee was cancelled‑‑‑Validity‑‑‑Where no proceedings whatsoever of any nature were pending against the allottee on 1‑7‑1974 (cut off date) there was no jurisdiction resting in Settlement Authorities to cancel the allotment‑‑­Order of cancellation could not be passed in exercise of suo motu powers as the proceedings had been commenced on an application filed by private person‑‑‑Whenever suo motu power was intended to be exercised express mention of the same was to be made in the order itself‑‑‑Where the Settlement Authority did not make any mention in the order that it was proceeding in the matter against the allottee in exercise of any purported suo motu jurisdiction, the Authority acted without jurisdiction and lawful authority in proceeding against the allottee and in cancelling his allotment‑‑‑Order passed by the Settlement Authority was set aside‑‑­Constitutional petition was allowed accordingly.

Iftikhar Hussain v. Mian Irshad Ali and others 1987 SCMR 2059; Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691; Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others 1999 SCMR 1719; Syed Istijab Hassan and 4 others v. Member (Settlement and Rehabilitation Wing), Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore 1999 YLR 1627; Jamal‑ud‑Din v. Member, Board of Revenue and 4 others 2001 CLC 81 and Muhammad Irshad and others v. Chairman, Evacuee Trust Board and others 2001 SCMR 704 ref.

Ch. Khurshid Ahmad and Ch. Shahbaz Khurshid for Petitioners.

Muhammad Hanif Khatana for Respondents Nos. 1 and 2.

Ch. Muhammad Abdullah for Respondent No.3.

Dates of hearing: 14th, 17th and 18th September, 2001.

2002 C L C 402

[Lahore]

Before Abdul Shakoor Paracha, J

NOOR KHAN‑‑‑Petitioner

Versus

KHAN MUHAMMAD ‑‑‑Respondent

Constitutional Petition No.4385 of 1991, decided on 8th October, 2001.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 22‑‑‑Civil Procedure Code (V of 1908), S.148 & O.XX, R.14(1)‑‑­Deposit of pre‑emption money‑‑‑Extension of time fixed in decree-jurisdiction of 'Court‑‑‑Scope‑‑‑Trial Court and Appellate Court has jurisdiction to extend time fixed in a decree for deposit of pre‑emption money, provided the decree is alive‑‑‑Grant of extension of time for deposit of purchase price under S.148, C.P.C. was the discretion of Trial Court‑‑‑After the expiry of original period fixed in the decree, no order for deposit of pre‑emption money can be passed by Trial Court, Appellate or revisional Court.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 22‑‑‑Civil Procedure Code (V of 1908), S.148 & O.XX, R.14(I)‑‑­Deposit of balance of pre‑emption money‑‑‑Grant of reasonable time‑‑­Ordinarily, the appellate or revisional Court should grant "reasonable time" while dismissing appeal or revision, as the case may be, but in exceptional cases, the Court may, in its discretion, refuse to extend such time.

(c) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 22‑‑‑Civil Procedure Code (V of 1908), O.XX, R.14(1) & S.148‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Failure to deposit pre‑emption money within time fixed in decree‑‑­Effect‑‑‑Trial Court through decree, dated 20‑5‑1974 directed pre‑emptor to deposit balance of pre‑emption money by 22‑7‑1974, otherwise his suit would stand dismissed‑‑‑Such order of Trial Court was not suspended by Appellate Court while admitting appeal of pre‑emptor for regular hearing‑‑‑During pendency of appeal on 23‑10‑1974, nobody appeared in Court on behalf of pre‑emptor nor pre‑emption money was deposited, as such Appellate Court dismissed appeal ‑‑‑Pre‑emptor, after remaining unsuccessful up to Supreme Court, made application for deposit of pre­emption money which was rejected by Trial Court as well as by Appellate Court‑‑‑Contention was that while dismissing appeal, neither the Appellate Court nor revisional Court or Supreme Court fixed any time for deposit of pre‑emption money, thus, pre‑emptor could deposit it within reasonable time after dismissal of petition by Supreme Court‑‑­Validity ‑‑‑Pre‑emptor was granted time to deposit pre‑emption money till 20‑7‑1974, when the same was not done, then there was no decree in field by the time when Appellate Court dismissed his appeal on 23‑10‑1974 and there was no question for extension of time‑‑‑No vested right was available to pre‑emptor for deposit of pre‑emption money‑‑­Pre‑emptor had not deposited pre‑emption money nor had made application for extension of time under S.148, C.P.C.‑‑‑In application made after 14 days of dismissal of petition by Supreme Court, pre‑emptor had not stated any ground for extension of time ‑‑‑Pre­emptor had failed to, make out a case for grant of time on the rule of "reasonable time" laid down in case of Shah Wali v. Ghulam Din PLD 1976 SC 983‑‑‑Constitutional petition was dismissed in circumstances.

Haji Ishtiaq Ahmad and .2 others v. Bakhshaya and 7 others 1976 SCMR 420; Shah Wali v. Ghulam Din PLD 1976 SC 983; Ansari Brothers v. Holy Trinty Church Trust PLD 1971 SC 700; Ghulam Muhammad and another v. Irshad Ahmad and another PLD 1982 SC 282; Khurshid Akbar v. Mian Manzur Ahmad and others 1992 SCMR 824; Dost Muhammad and others v. Nazar Hussain Khan and others 1'984 SCMR 325; Bhai Khan v. Allah Bakhsh and others 1986 SCMR 849; Hakim Ali and another v. Iftikhar Ahmad Khan 1990 SCMR 1571 and Muhammad Irsliad v. Ch. Fazal Haq and 5 others 1991 SCMR 2149 ref.

(d) Discretion‑‑‑

‑‑‑‑ Exercise of discretion was a delicate matter and a judicial act‑‑‑When discretion was found to have been exercised arbitrarily or on wrong notion or conception of law, then it was equally the duty of Appellate or Revisional Court to interfere with it and pass an order, which would be in the circumstances of the case in consonance with justice and law.

Bhai Khan v. Allah Bakhsh and another 1986 SCMR 849 ref.

Raja Mahmood Akhtar for Petitioner.

Dost Muhammad for Respondent.

Date of hearing: 27th September, 2001.

2002 C L C 409

[Lahore]

Before Tanvir Bashir Ansari, J

MUSHTAQ AHMED ‑‑‑Petitioner

Versus

ATTA MUHAMMAD and others‑‑‑Respondents

Writ Petition No. 781 of 1991, heard on 24th October, 2001.

(a) Conciliation Courts Ordinance (XLIV of 1961)‑‑‑

‑‑‑‑S. 6(2)‑‑‑Conciliation Courts, jurisdiction of‑‑‑Parties were residents of two different villages (Chak) of the same area‑‑Matter was decided by the Conciliation Court of the village (Chak) where cause of action had arisen‑‑‑Validity‑‑‑Where one of the parties was resident of village (Chak) of the same city or the municipality, it would the concerned Conciliation Court of its power of conciliation party resided within its jurisdiction and the cause of within the limits of such Conciliation Court.

(b) Jurisdiction‑‑‑

‑‑‑‑Challenge to jurisdiction‑‑‑Principle‑‑If a party has participated in the proceedings of Tribunal and allowed the same to assume jurisdiction, such party could not be allowed to turn around and challenge the jurisdiction when adverse order was passed against the party.

(c) Conciliation Courts Ordinance (XLIV of 1961)‑‑‑

‑‑‑‑S. 6 & Sched., Part I, Sec. B‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Conciliation proceedings‑‑‑Recovery of sum of Rs.14,000‑‑‑Jurisdiction of Conciliation Court‑‑‑Dispute between the parties was decided against the petitioner by the Court and revision petition was also dismissed by the Appellate Court being, time-­barred‑‑‑Contention of the petitioner was that as there was neither any written document, nor written contract nor any receipt; therefore, the Conciliation Court ‑had wrongly assumed the jurisdiction in the matter‑‑­Validity‑‑‑Where claim of the respondent before the Court was in a sum of Rs.14,000 such dispute fell under Part II, Section B of the Schedule to the Conciliation Courts Ordinance, 1961‑‑‑Revision filed by the petitioner was time‑barred and the petitioner made no attempt to justify the delay thus, findings of the Appellate Court regarding the revision being time-­barred was unexceptionable‑‑‑High Court declined to interfere with the judgments passed by the Courts below‑‑‑Constitutional petition was dismissed in circumstances.

Shaukat Ali Mian for Petitioner.

Ch. Irshad Ahmad Jajja for Respondents.

Date of hearing: 24th October, 2001.

2002 C L C 421

[Lahore]

Before Tanvir Bashir Ansari, J

Haji ANWAR ALI and others‑‑‑Petitioners

Versus

BASHIR AHMAD‑‑‑Respondent

Civil Revisions Nos.341‑D and 342‑D of 1990/BWP, heard on 8th January, 2001.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 33‑‑‑Arbitration Act (X of 1940), S.21‑‑‑Referee, appointment by parties themselves‑‑‑Decision by referee‑‑‑Acquiring further information by referee‑‑‑Validity‑‑‑Although a referee has to decide according to his personal knowledge yet his act of acquiring further information does not vitiate his decision.

Muhammad Arif and others v. Farrukh Hafeez KLR 2000 Civil Cases 387 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 33‑‑‑Arbitration Act (X of 1940), S.21 ‑‑‑Resolving of dispute by referee‑‑‑Gathering of information by referee through other sources‑‑­Such inquiry is not violative of Art.33 of Qanun‑e‑Shahadat, 1984‑‑­Although a referee must have previous knowledge of the dispute referred to him, yet there is nothing wrong if the referee, in order to supplement or augment his knowledge, chooses to affirm or re‑affirm the same through other sources‑‑‑Inquiry which is supplementato and in addition to his personal, knowledge is not violative of the provisions of Art. 43 of Qanun‑e‑Shahadat, 1984.

Naveed Aziz and another v. Rauf Ali Syed 1996 CLC 1932 ref.

(e) Arbitration Act (X of 1940)‑‑‑‑

------S. 21‑‑‑Reference to arbitrator‑‑‑Pre‑condition‑‑‑Mandatory requirement of S.21 of Arbitration Act, 1940, is that in case the parties desire to resort to arbitration, the same has to be done through application in writing.

Mahabit v. Manohar Singh AIR 1924 All. 540, Waliullah v. Bhaggan AIR 1925 Oudh 269 and Gudipoodi Subbayya and another v. Katapalli Seshayya and others AIR 1928 Mad. 48(2) ref

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 21‑‑‑Reference to arbitrator‑‑‑Proceedings pending before Civil Court‑‑‑Filing of application a mandatory requirement‑‑‑Incumbent upon the parties to change such course for resolution of their dispute through application in writing‑‑‑Requirement of application in writing as envisaged in S.21 of the Arbitration Act, 1940, was mandatory.

Messrs S.M. Qasim & Co. v. Messrs Sh. Azimuddin PLD 1962 (W.P.). Lah. 95; Municipal Committee, Fazilka v. Fazilka Electric Supply Co. Ltd. AIR 1947 Lah. 309; A.B. Mitchell v. J.C. Dutt AIR 1928 Cal. 209 and Dwarkanath Roy and others v. Fanindra Nath Roy and other, AIR 1919 Cal. 232 ref.

(e) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 21‑‑‑Decision by referee‑‑‑Concurrent findings of fact by the Courts below‑‑‑Non‑filing of any application in Trial Court for reference to referee‑‑‑Suit for recovery of a sum of Rs.21,000 was pending when the parties decided to get their dispute resolved through referee‑‑‑Referee decided the matter in favour of the plaintiff and both the Courts below concurrently maintained decision of the referee‑‑‑Defendant raised the plea that referee was like an arbitrator and before the matter was referred for decision by referee, requirements of S.21 of the Arbitration Act 1940 had not been complied with‑‑‑Validity‑‑‑Where there was no request to the Trial Court, it could not be said that the reference was made to an arbitrator‑‑‑Parties, in the present case, had themselves opted for a particular mode of resolving their dispute and there was nothing illegal in the course which was adopted‑‑‑Trial Court had only approved the agreement of the parties by referring the matter to the person named by both the parties and the, person named also had implicit nexus with the dispute‑‑Nothing in the exercise of jurisdiction by Trial Court could be termed as irregular or infirm‑‑‑Where no illegality or infirmity was found in the judgments of the two Courts below, High Court declined two interfere with the same.

Sher Zaman Khan v. Noor Zaman Khan and another PLD 1977 Lah. 672 and Muhammad Ashraf v. Abdur Rehman 1993 CLC 1875 ref.

Ijaz Ahmad Chaudhry for Petitioners.

Nemo for Respondent.

Date of hearing: 8th January, 2001.

2002 C L C 433

[Lahore]

Before Tanvir Bashir Ansari, J

Malik ELLAHI BUX and others‑‑‑Petitioners

Versus

MUHAMMAD ASLAM‑‑‑Respondent

Civil Revisions Nos.481‑D and 480‑D of 1984/BWP, decided on 27th September, 2001.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 55‑‑‑Time as of the essence of contract‑‑‑Principles‑‑‑Where specific dates were mentioned for payment of instalments, such specific stipulation, in the absence of any other material on record, would show that the intention of the parties was to treat time as of the essence of the contract.

Muhammad Sharif v. Mst. Fajji 1998 SCMR 2485 ref.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 53‑A‑‑‑Benefit of S.53‑A of the Transfer of Property Act, 1882‑‑­Principles‑‑‑In order to seek such protection or benefit, the petitioners must show that the possession is in pursuance of an agreement to sell which still subsists‑‑‑Having committed default in performing his part of contract, a vendee cannot continue to remain in possession in the garb of protection of agreement to sell.

(c) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 53‑A‑‑‑Contract Act (IX of 1872), S.55‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Specific performance of agreement to sell‑‑‑Time as of the essence of contract, claiming benefit of S.53‑A of the Transfer of Property Act, 1882‑‑‑Agreement to sell contained specific time frame for payment of consideration amount‑‑‑Plaintiffs failed to pay the amount accordingly‑‑‑Ground on which the non‑payment of balance price was sought to be justified had been found against the plaintiffs by both the Courts below‑‑‑Effect‑‑‑Where the plaintiffs by their own conduct were responsible for rescission of the sale agreement, their possession had become unauthorized and unlawful‑‑‑Benefit of S.53‑A of the Transfer of Property Act, 1882, could not be extended to the petitioners‑‑‑Appellate Court had rightly reversed the finding of Trial Court and dismissed the suit‑‑‑Discretion exercised by the Appellate Court was unexceptionable and High Court declined to form a different view‑‑‑Judgment and decree passed by the Appellate Court were upheld in circumstances.

Zaheer Ahmad and another v. Abdul Aziz and another 1983 SCMR 559; Dr. Aftab A. Khan v. Muhammad Iqbal and 2 others 1984 CLC 3158; Isso and another v. Muhammad Ismail and 2 others 1992 MLD 1787; Messrs Pioneer Housing Society (Pvt.) Limited v. Messrs Babar & Co. PLD 1999 Lah. 193 and Haji Abdul Rehman v. Niaz‑ Ali 2000 CLC 184 ref.

Malik Abdul Ghafoor Awan for Petitioner.

M.M. Bhatti for Respondent.

Date of hearing: 27th September, 2001.

2002 C L C 443

[Lahore]

Before Tanvir Bashir Ansari, J

AMANULLAH‑‑‑Petitioner

Versus

SIRAJ DIN‑‑‑Respondent

Civil Revision No. 159‑D of 1988/BWP, heard on 26th September, 2001.

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

‑‑‑‑S. 45‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Oral sale through mutation‑‑‑Benefit of S.54 of Transfer of Property Act, 1882‑‑­Availability‑‑‑Where the vendors had entered into oral sale through mutation, it was not possible for them to turn around and claim any benefit under S.54 of the Transfer of Property Act, 1882.

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

‑‑‑‑S. 115‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.45‑‑­Revision ‑‑‑Concurrent findings of fact by two Courts below‑‑‑Dispute was with regard to oral sale of the suit land made by the petitioners in favour of one of the respondents‑‑‑Petitioners assailed the sale mutation in a civil suit‑‑‑Both the Courts below had decided the matter concurrently in favour of the respondent and against the petitioners‑‑­Validity‑‑‑Petitioners failed to point out any illegality or irregularity m exercise of jurisdiction by the Courts below‑‑‑Concurrent findings of fact were also supported by judgment passed by High Court in earlier round of litigation on the subject between the same ‑parties‑‑‑High Court declined to interfere with the judgments and decrees passed by the two Courts below‑‑‑Revision was dismissed in circumstances.

Raja Muhammad Sohail Iftikhar for Petitioner.

Sardar Muhammad Hussain Khan for Respondent No. 1.

Date of hearing: 26th September, 2001.

1002 C L C 455

[Lahore]

Before Jawwad S. Khawaja and Muhammad Sair Ali, JJ

MUHAMMAD ASGHAR‑‑‑Appellant

Versus

NASEEM AKHTAR and others‑‑‑Respondents

Regular First Appeal No.533 of 2001, heard on 6th December, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XX, R.18‑‑‑Decree of partition‑‑‑Compromise/settlement alleged by appellant with regard to payment of money for shares of respondents (his sisters) was taken note of by Trial Court and had rightly been decided to have no bearing on the partition suit between the parties, because the same was based on inherited title‑‑‑Trial Court had rightly found that agreement itself could not, in the eyes of law, create any right or title in the suit land in favour of appellant‑‑‑Appellant, however, could assert his rights before a Civil Court on the basis of his alleged agreement subject to law‑‑‑Appeal was dismissed being without merit.

Mirza Iqrar Beg v. M.V. Hannan PLD 1979 Kar. 620 ref.

Rafiq Javed Butt for Appellant.

Mian Muhammad Ashraf Tanvir for Respondents.

Date of hearing: 6th December, 2001.

2002 C L C 456

[Lahore]

Before Muhammad Nawaz Abbasi, J

MANSUR HUSSAIN ‑‑‑Petitioner

Versus

Mst. SIFTAN and others‑‑‑‑Respondents

Civil Revision No.233‑D of 1988, decided on 16th March, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XLI, R.23 & 33‑‑‑Speciiic Relief Act (I of 1877), S.42‑‑‑Suit for declaration ‑‑‑Remanding ca a to the Trial Court by Appellate Court‑‑‑Appellate Court remanded ease to the Trial Court for fresh decision after recording further evidence despite sufficient oral and documentary evidence including the question of possession of suit property was available for disposal of the appeal on merits‑‑‑Appellate Court instead of remanding the case to the Trial Court should have pronounced the judgment itself especially when neither any party had prayed for the production of the additional evidence nor further evidence was required for the disposal of appeal‑‑‑Order remanding case being not proper, was set aside.

Liaqat Baig v. Board of Intermediate and Secondary Education, Multan through its Chairman 1987 CLC 2425; Arshad Ameen v. Messrs Swiss Bakery and others 1993 SCMR 216 and Manzoor Hussain v. Malkhan Khewat No.40 through Shukar Din and 3 others PLD 1998 Lah. 172 ref.

Ajmal Kamal Mirza for Petitioner.

Nemo for Respondent.

Date of hearing: 16th March, 2001.

2002 C L C 462

[Lahore]

Before Tanvir Ahmed Khan, J

Messrs AL‑NOOR TRADERS‑‑‑Petitioner

Versus

DISTRICT HEALTH OFFICER, SARGODHA DISTRICT, SARGODHA‑‑‑Respondent

Writ Petition No. 11968 of 2000, decided on 22nd June, 2000.

Drugs Act (XXXI of 1976)‑‑­

‑‑‑‑Ss. 6 & 23‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Drug sale licence, issuance of‑‑‑Writ of mandamus‑‑‑Application for issuance of drug sale licence filed by the applicant after completing all legal formalities on a prescribed Form and depositing required fee was not entertained in view of ban allegedly imposed by the Government‑‑‑Applicant of such licence in his Constitutional petition had sought direction in the nature of writ of mandamus to direct the functionaries to process his application for the issuance of drug sale licence in accordance with law ‑‑‑Validity‑‑­Provincial Government was authorized under S.6 of Drugs Act, 1976 to regulate sale of drugs in the prescribed manner and could issue such directions to dealers of drugs as it deemed fit‑‑‑Government on the issuance of drug sale licence could impose certain conditions having sanction of law, but was not authorised to impose ban as there was no provision in the Rules authorizing the Government functionary to put such ban‑‑‑Direction was issued to the functionary to dispose of application of petitioner strictly in accordance with law.

N.A. Butt for Petitioner.

2002 C L C 464

[Lahore]

Before Mian Saqib Nisar, J

ATTA MUHAMMAD and 6 others‑‑‑Petitioners

Versus

MEMBER (CONSOLIDATION), BOARD OF REVENUE, PUNJAB, LAHORE

and 9 others‑‑‑Respondents

Writ Petition No. 1626 of 1991, heard on 25th September, 2000.

(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑Ss. 10, 11 & 13‑‑‑Consolidation of holdings‑‑‑Order confirming Consolidation Scheme was challenged in appeal and appeal was dismissed‑‑‑Appellants, after rejection of their appeal, kept silent for about three years and thereafter moved a miscellaneous application before Consolidation Officer which was rejected‑‑‑Appellant instead of challenging said rejection order, re‑agitated original order of dismissal of appeal through another appeal‑‑‑Second appeal against order earlier passed in first appeal was not competent in law in absence of any plausible explanation given by the appellants as to why the matter was not further challenged when their first appeal was dismissed‑‑‑Even if original order was void, subsequent appeal was barred by time and the appellant had failed to satisfy the Court that second appeal was competent as earlier appeal having been dismissed, appellant did not opt to challenge that order‑‑‑Matter could not be re‑agitated through a fresh appeal under the principle of past and closed transaction‑‑‑Even otherwise Consolidation Authorities after finalization of the Consolidation Scheme had become functus officio and the matter could not be re‑agitated through miscellaneous application or through fresh appeal.

Bashir‑ud‑Din and others' case PLD 1985 SC 220 ref.

(b) Limitation‑‑‑

‑‑‑‑ Commencement of limitation‑‑‑Person who was well aware of the order passed against him, even if said order was void, could not sleep over his right and to choose his own time to challenge such order on the plea that the same was void‑‑‑Limitation for impugning such order at the best would commence from the time when it would come to the knowledge of the aggrieved party.

Malik Azam Rasul for Petitioners.

Sheikh Naveed Shahryar for Respondents.

Date, of hearing: 25th September, 2000.

2002 C L C 484

[Lahore]

Before Dr. Munir Ahmad Mughal, J

LIAQUAT ALI ‑‑‑Petitioner

Versus

Mst. AKBARI and others‑‑‑Respondents

Civil Revision No.36 of 2000, decided on 20th September, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss1. 12(2) & 115‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑‑Suit for recovery of possession of land as Haq Mahar/Dower ‑‑‑Application for setting aside decree on allegation of fraud‑‑‑Suit was finally decreed up to Supreme Court‑‑‑Defendant/judgment‑debtor filed application under S.12(2N, C.P.C. alleging that after decision of Supreme Court he came to know that Nikahnama and Kabin Nama on basis of which suit was decreed were forged and fictitious‑‑‑Validity‑‑‑Supreme Court having finally decided matter after taking into consideration Nikahnama, Kabin Nama and plea of fraud, application filed under S.12(2), C.P.C. was rightly dismissed and the dismissal order could not be interfered with by the High Court.

Mubarak Ali v. Fatal Muhammad and another PLD 1995 SC 564 ref.

Ch. Anwar‑ul‑Haq Pannun for Petitioner.

Noorul Hassan for Respondents.

Date of hearing: 20th September, 2000.

2002 C L C 489

[Lahore]

Before Syed Zahid Hussain, J

INAYAT KHAN‑‑‑Petitioner

Versus

HAJI MUHAMMAD through Legal Heirs‑‑‑Respondent

Civil Revision No.59 of 1992, heard on 20th September, 2001.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 30‑‑‑Civil Procedure Code (V of 1908), S.115 Limitation‑‑‑Agreement to sell and delivery of posse on 26‑5‑1983, as the sale‑deed was executed on 14‑7‑1982, agreement to sell was executed in favour of the vendee on 11‑12‑1974, alongwith delivery of possession‑‑‑Trial Court decreed the suit while the same was dismissed by Lower Appellate Court as being time‑barred‑‑­Validity‑‑‑Agreement was not sale of the suit land in itself but was merely agreement whereas the sale of the land was made when the sale­deed was executed and registered‑‑‑Possession of land earlier delivered to the vendee under agreement of sale could not be construed to be delivery of possession under sale‑‑‑Where vendee was already in possession when sale was made, his possession could not be treated to be possession under the sale‑‑‑Construction placed by the Lower Appellate Court on the agreement dated 11‑12‑1974, in his judgment was untenable and was a result of misreading of the same‑‑‑Judgment and decree passed by the Lower Appellate Court were set aside:

Sh. Naveed Shahryar for Petitioner.

Falak Sher Malik for Respondents.

Date of hearing: 20th September, 2001.

2002 C L C 503

[Lahore]

Before Tanvir Bashir Ansari, J

Haji BASHIR MUHAMMAD ‑‑‑Appellant

Versus

ATTA MUHAMMAD and others‑‑‑Respondents

Regular Second Appeal No.4 of 1984/BWP, decided on 16th May, 2001.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4, 21 & 30‑‑‑Civil Procedure Code (V of 1908), Ss. 147 & 149‑‑‑Suit for pre‑emption ‑‑‑Deficiency in court‑fee, making up of‑‑­Grant of time‑‑‑Trial Court was fully competent to grant time to the plaintiffs/pre‑emptors for supplying deficient court‑fee and upon compliance with said order of the Court, it would be deemed as if the court‑fee was paid in the first instance and the question of bar of limitation would not arise.

Muhammad Siddique v. Muhammad Ibrahim PLD 1981 Lah. 97 and Mst. Parveen v. Mst. Jamsheda Begum and another PLD 1983 SC 227 ref.

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

---S. 100‑‑‑Second appeal‑‑‑Scope‑‑‑Concurrent findings of fact of both the Trial Court and First Appellate Court could not be interfered with by the High Court in second appeal when no illegality and irregularity was pointed out in concurrent findings of Courts below.

Sardar Ashiq Muhammad Khan for Appellant.

Pirzada M.M. Aslam for Respondents.

Date of hearing: 16th May, 2001.

2002 C L C 506

[Lahore]

Before Naseem Sikandar and Mansoor Ahmad, JJ

Sheikh NIZAR ALI ‑‑‑ Appellant

Versus

CUSTOMS, CENTRAL EXCISE AND SALES TAX APPELLATE TRIBUNAL, LAHORE and another‑‑‑Respondents

Custom Appeal No.21 of 1997, decided on 3rd October, 2001.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 156(1)(89), 157 read with Ss.7 & 195‑‑‑West Pakistan Rangers Ordinance (XIV of 1959), S.6(d)‑‑‑S.R.O. No.29(1)/73, dated 21‑1‑1973‑‑‑Seizure of gold‑‑‑Raid by Rangers in heart of city‑­Validity‑‑‑Raiding party headed by Commandant, Anti‑Smuggling Rangers alongwith Customs Inspector and Police Officer conducted raid within municipal limits of a city‑‑‑Seizure of gold by Rangers in the heart of city way against law as such raid was beyond normal powers as entrusted to Rangers under West Pakistan Rangers Ordinance, 1959 and S.R.O. No.29(1)/73, dated 21‑1‑1973 issued by Central Board of Revenue‑‑‑Any illegal act including smuggling certainly needed to be properly checked and forestalled, but only by an Authority which was so empowered‑‑‑If such exercise by Rangers was condoned by mere mention in F.I.R. name of a Customs Officer/Inspector and a Police Officer, then there would be no way to check their intrusion into cities‑‑‑Conducting of raid by Rangers and putting up a Naka in the heart of the city was not supported by any provision of law or even by exigency of the situation‑‑‑High Court accepted appeal and declared all 'the proceedings to be without lawful authority.

Bank of Bahawalpur v. Siddiq Textiles Ltd. PLD 1969 Kar. 599; Dalilur Rahman Chaudhry v. Crown 1969 SCMR 602; S.M. Yousaf v Collector Customs 1972 SCMR 87; Muhammad Zubair v. Pak Government PLD 1986 Pesh. 186 and Sher Bahadur v. Chairman, Industrial Relations PLD 1975 Kar. 483 ref.

(b) Customs Act (IV of 1969)‑‑‑

‑‑-‑Ss. 156(1)(89), 157 & 195‑‑‑West Pakistan Rangers Ordinance (XIV of 1959), S.6(d)‑‑‑Attempt to smuggle‑‑‑Seizure of gold by Rangers in heart of city‑‑‑Allegations in F.I.R. and show‑cause notice was that gold seized from custody of appellant in centre of city was to be supplied by him to some one else in a village situated near border area ‑‑‑Validity‑‑­Such information of attempt to smuggle gold to India, if believed to be correct, would not empower Rangers to seek the intended smuggler right in his house‑‑‑Rangers were obliged to wait till accused as carrier or alleged receiver of village had actually entered their area of jurisdiction i.e. the border area‑‑‑Seizure of gold by Rangers was illegal in circumstances.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 7‑‑‑West Pakistan Rangers Ordinance (XIV of 1959) S.6(d)‑‑­S.R.O. No.29(1)/73, dated 21‑1‑1973‑‑‑Prevention of smuggling‑‑­Operational area of Rangers‑‑‑Extent‑‑‑Notified Officer 'of Rangers by virtue of S.R.O. dated 3‑1‑1973 issued by Central Board of Revenue could operate as Customs Officer only within his operational area and not beyond.

(d) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 156(1)(89) & 157‑‑‑Seizure of gold from goldsmith‑‑­Allegation of smuggling‑‑‑Recovery of 670 Tolas gold bearing foreign mark from a person, goldsmith by, profession was not out of proportion to normal requirements of a person engaged in such business particularly when his claim of being a goldsmith by profession was never challenged‑‑‑Gold bearing foreign mark' was by itself not a proof, much less a conclusive proof, that it was brought into Pakistan from outside nor its better degree\of refinement would prove that the same could not be obtained in Pakistan‑‑‑Prosecution had failed to establish that accused was found in possession of smuggled goods or any goods with respect to which there could be a reasonable suspicion that those were smuggled goods‑‑‑Accused was acquitted in circumstances.

Barkat Ali and another v. The State PLD 1973 Kar. 659 ref.

Kh. Adrian Ahmed for Appellant.

Jawahar A. Naqvi for Respondent.

2002 C L C 518

[Lahore]

Before Maulvi Anwarul Haq and Mian Hamid Farooq, JJ

Mst. FALAK NAZ‑‑‑Petitioner

Versus

FEDERAL LAND COMMISSION, ISLAMABAD and another‑‑‑Respondents

Writ Petition No.796 of 1977, heard on 16th October, 2001.

(a) Land Reforms Regulation, 1972 (M.L.R.115)‑‑‑

‑‑‑‑Para. 7‑‑‑Transaction of transfer of land in lieu of dower in favour of wife stood completed at the time of Nikah on 14‑10‑1971, which fact found mention in Nikahnama itself‑‑‑Entry of such transaction in Revenue Record was a mere formality‑‑‑Federal Land Commission had no jurisdiction to invalidate such transaction as it stood completed before 20‑12‑1971 i.e. the date prescribed in para.7(1)(a) of Land Reforms Regulation, 1972.

(b) Land Reforms Regulation, 1972 (M.L.R.115)‑‑‑

‑‑‑‑Para. 20‑‑‑Revision‑‑‑Transaction of transfer of land by husband in favour of wife in lieu of her dower was set aside by Federal Land Commission in exercise of suo motu revisional jurisdiction without associating wife in such proceedings‑‑‑Validity‑‑‑All such proceedings which took place without notice to wife were void ab initio.

(c) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 5‑‑‑West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, Rr.7 & 8(1)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.85(4), 87 & 89‑‑‑Nikahnama is a public document and its certified copy can be issued by Nikah Registrar or Secretary of Union Council, which is admissible in evidence.

Mst. Zubaida Bibi and others v. Mst. Majidan and another 1994 SCMR 1978 ref.

(d) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 5‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑Dower‑‑‑Non‑attestation of mutation‑‑‑Effect‑‑‑Transaction of dower stood completed on date of registration of marriage‑‑‑Title in the land given to wife as dower had passed in her favour, which could not be postponed till attestation of mutation.

Tahira Begum v. Federal Land Commission, Islamabad 1983 CLC 663 ref.

Syed Asghar Hussain Sabzwari for Petitioner.

Nemo for Respondent.

Date of hearing: 16th October, 2001.

2002 C L C 539

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD MALIK ‑‑‑Petitioner

Versus

RETURNING OFFICER and another‑‑‑Respondents

Writ Petition No.12803 of 2001, decided on 19th October, 2001.

Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R. 47‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Mistake apparent on record‑‑‑Correction of mistake in calculation of votes‑‑‑Returning Officer by mistake had shown 499 votes as having been secured by the returned candidate whereas total votes polled at the polling station were 517, out of which 18 were found invalid, thus, total valid votes were 499, which were secured by different candidates including the returned candidate‑‑‑Notification of election had not been issued‑‑‑Contention was that though the mistake was apparent on record, but the Returning Officer had become functus officio to make such correction after announcement of the result‑‑‑High Court had already stayed the declaration of result and if any Notification had been issued in that regard, that would be illegal‑‑High Court directed the Returning Officer to correct the mistake and issue correct result and then fresh Notification be issued by the Election Commission.

Qadeer Ahmad Siddiqui for Petitioner.

Ch. Imtiaz Elahi for Respondent No.2.

Ch. Muhammad Jehangir Wahla, A.A.‑G. for Respondents.

2002 C L C 557

[Lahore]

Before Amir Alam Khan and Muhammad Sair Ali, JJ

BARKAT ALI and another‑‑‑Appellants

Versus

MUHAMMAD ASHRAF and 4 others‑‑‑Respondents

Regular First Appeal No. 140 of 1996, decided on 3rd October, 2001.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 14‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Appeal‑‑‑Time spent in wrong forum ‑‑‑Condonation of delay‑‑‑Decree was passed by Trial Court on 13‑7‑1995‑‑‑Appeal against decree was filed before District Judge on 19‑7‑1995, which according to jurisdictional value of suit should have been filed before the High Court‑‑‑One appellant was illiterate and the other was educated‑‑­Both having engaged a law man remained satisfied that their interest would be looked after, who in turn proceeded to file appeal before wrong Court‑‑‑Counsel had sworn an affidavit that it was done under his bona fide mistaken advice‑‑‑Appellants had gained nothing out of it‑‑‑Had appeal been checked at the time of its filing or at preliminary stage, there was enough time for appellants to file it before High Court, but such mistake was pointed out on 14‑3‑1996 , i.e. almost 9 months after its filing‑‑‑All such factors had contributed towards delay in filing appeal before High Court‑‑‑Delay was condoned in circumstances.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Karachi Electric Supply Corporation Ltd. v. Lawari and 4 others PLD 2000 SC 94 and Mst. Sanober Jan v. Shaukat Ali and others 2001 MLD 321 eel.

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

‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement to sell‑‑‑Such agreement was alleged by defendants to be based on fraud and collusion between plaintiffs and vendor‑‑‑Trial Court decreed the suit ‑‑‑Validity‑‑­Agreement had been drawn on plain paper, over which an undated adhesive stamp had been affixed‑‑‑Document had not been scribed by a regular scribe‑‑No explanation was given as to why it was drawn on plain paper ‑and by a person, who was not regular scribe or petition­ writer‑‑‑Scribe had no register to show that agreement had at all been executed on the date mentioned therein‑‑‑One plaintiff stated that stamp was purchased from Bank and amount thereof was deposited by him, but no receipt of Bank had been produced nor any evidence was produced on the record to prove that such an amount was at all deposited in the Bank‑‑‑Accountant of Treasury Office stated that adhesive stamp affixed on agreement had not been issued by his office, as it did not bear the date and number and that whenever an adhesive stamp had been issued, they had always endorsed number thereon and themselves affixed it on the document‑‑‑One plaintiff initially stated that he had drawn amount of sale consideration from the Bank, but later on said that he had paid it from sale proceeds of his property‑‑‑Executing registered sale‑deed in favour .of defendants and also conceding plaintiff's suit had made the conduct of vendor as fraudulent and mala fide‑‑‑Sale to favour of defendants had been incorporated in Revenue Record‑‑‑Reasoning of Trial Court that plaintiffs had produced scribe and attesting witness of document and that it was enough to prove the same was erroneous for it would be very ease for a person to ante‑date an agreement and produce two witnesses to show that it had in fact been executed‑‑‑Evidence showed that plaintiff in collusion with the vendor had created an ante‑dated agreement to sell and in furtherance thereof had also issued notice to create evidence that such agreement was executed‑‑‑Case should have been appreciated in view of the fact that agreement to sell forming basis of the suit was not drawn on a stamp paper‑‑‑Plaintiffs had failed to prove valid execution of agreement to sell and Trial Court had erred in law in decreeing the suit‑‑­High Court set aside impugned judgment and decree and dismissed the suit.

Malik Amjad Pervaiz for Appellants.

Tabi Ahmed Khan for Respondents.

Date of hearing: 26th June, 2001.

2002 C L C 574

[Lahore]

Before Mansoor Ahmad, J

CHANAN DIN‑‑‑Petitioner

Versus

GHULAM HAIDER and 8 others‑‑‑‑Respondents

Civil Revision No. 1417 of 1995, heard on 28th September, 2001.

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

‑‑‑‑O. XVII, R.3‑‑‑Provisions of O.XVII, R.3, C.P.C. being penal in nature have to be interpreted and applied strictly.

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

‑‑‑‑O. XVII, R.3 & S.115‑‑‑Closing of defendant's evidence for its non­-production on a date, which was granted on the request of both the parties to effect compromise‑‑‑Validity‑‑‑Provisions of O.XVII, R.3, C P.C.‑being penal in nature had to be interpreted and applied strictly‑‑­Adjourned date was not granted at the instance of defendant alone, therefore, his evidence could not be closed under O.XVII, R.3, C.P.C.

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

‑‑‑‑O. XX, R.18(2)‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑­Preliminary decree, preparation of‑‑‑Suit for declaration, partition, possession and permanent injunction‑‑‑Plaintiff claimed her right and share in suit house being daughter of deceased‑‑‑Defendant denied that the plaintiff was the daughter of deceased‑‑‑Suit was dismissed by Trial Court, but was decreed by Appellate Court‑‑‑Validity‑‑‑Suit, was for partition of property inter se the legal heirs of deceased‑‑‑Appellate Court while allowing the appeal had granted a declaratory decree, whereas after holding that plaintiff was one of the legal heirs of deceased, a preliminary decree was required to be passed‑‑‑Mere declaratory decree would not redress the grievance of plaintiff in circumstances‑‑­Revision petition was accepted and impugned judgments and decrees were set aside and case was remanded for its decision within specified time.

Naseer Ahmad v. District Judge, Multan and others PLD 1992 Lah 92 ref.

A.K. Dogar for Petitioner.

Tariq Mehmood Chohan for Respondents.

Date of hearing: 28th September, 2001.

2002 C L C 587

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

Mst. BUSHRA BIBI and 2 others‑‑‑Appellants

Versus

MUHAMMAD SHARIF and 23 others‑‑‑Respondents

Regular First Appeal No. 114 of 1991, heard on 17th September, 2001.

(a) Adverse possession‑‑‑

‑‑‑‑ Pleas of title to property and adverse possession are mutually destructive.

Maqbool Ahmed and others v. Munir Ahmed and others 1995 SCMR 482; PLD 1987 SC 1295; Maqbool Ahmed v. Government of Pakistan 1991 SCMR 1295; Ghulam Ali and others v. Ghulam Sarwar Naqvi PLD 1989 Lah. 372 and Ghulam Hussain v. Nazir Ahmed and others 1987 CLC 1255 ref:

(b) Adverse possession‑‑‑

‑‑‑‑ Mere non‑payment of share of produce is no reason to hold acquisition of title on the basis of adverse possession.

(c) Adverse possession‑‑‑

‑‑‑‑ Question of maturity of title on account of adverse possession would not arise in a case, where right to possession was claimed on the basis of 'title which was not proved to be valid.

(d) Practice and procedure‑‑‑

‑‑‑‑ Party contending that an issue mentioned in judgment as not pressed was in fact argued by him before Trial Court should file affidavit of his counsel to that effect in Court before whom such judgment is being challenged.

(e) Islamic Law‑‑‑‑

‑‑‑‑Inheritance‑‑‑Limitation‑‑‑No bar of limitation for the purpose of enforcement of right of inheritance.

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

‑‑‑‑0. VI, R.7‑‑‑Pleadings‑‑‑Party could not be allowed to plead beyond the scope of his pleadings, and even if any evidence had been led beyond scope thereof, then it had to be ignored by the Court.

Taki A. Khan for Appellant. M. Zafar lqbal Chaudhry for Respondent.

Date of hearing: 17th September, 2001

2002 C L C 597

[Lahore]

Before Naseem Sikandar and Mansoor Ahmad, JJ

RAFIQ & COMPANY through Managing Partner‑‑‑Appellant

Versus­

APPELLATE TRIBUNAL, CUSTOMS, EXCISE AND SALES TAX, LAHORE and 3 others‑‑‑Respondents

Custom Appeal No.43 of 1998, heard on 10th September, 2001.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 19, 32(1) & 156(1)‑‑‑S.R.O. 505(1)/88, dated 20‑6‑1988‑‑­S.R.0.500(I)/88, dated 26‑7‑1988‑‑‑Import of goods‑‑‑Exemption from customs duty‑‑‑Importer who imported tyres and tubes meant for agricultural tractors, had claimed exemption from customs duty provided under the notifications‑‑‑Authorities did not accept the claim of the importer contending that the tyres and tubes were not meant exclusively for agricultural tractors plying in Pakistan, but were for use of vibratory rollers, earth‑moving machines, combined harvesters and log skidders‑‑­Importer produced sufficient material in the form of booklets and the information provided by the foreign manufacturers/suppliers that said tyres and tubes were usable for agricultural tractors as well ‑‑‑Validity‑‑­Authorities were to establish that said tyres and tubes could not be used for agricultural purposes, but Authorities instead of controverting the material produced by the importer in proof of his claim, resorted to consider circumstantial evidence, which was totally unfair and was not sufficient to disallow the exemption claimed by the importer‑‑‑Orders passed by the Authorities were set aside in appeal with the direction that consignment imported should be processed in terms of Bill of Entry and the declaration. made therein for its release from customs duty and sales tax in terms of the notifications.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Taxation laws ‑‑‑No principle of interpretation is more established than the one that where two equally acceptable interpretations of a statutory provision are possible one favouring the taxpayer is to be adopted.

Mian Qamar‑ud‑Din for Appellant.

Jawahar A. Naqvi for Respondents.

Date of hearing: 10th September, 2001.

2002 C L C 605

[Lahore]

Before Naseem Sikandar and Mansoor Ahmad, JJ

COLLECTOR OF CUSTOMS---Appellant

Versus

Messrs AYUB BEARING STORE---Respondent

Custom Appeal No.296 of 2001, decided on 9th October, 2001.

(a)Customs Act (IV of 1969)---

----Ss. 196 & 194-B---Appeal to the High Court lies in respect of any question of law, which arises out of an order recorded by the Tribunal under S.194-B of the Act---Question of law can be said to have arisen out of an order of Tribunal only if either it was mooted and ruled upon by Tribunal or else it arose as a natural consequence thereof.

(b) Customs Act (IV of 1969)---

----Ss. 196 & 194-B---Qanun-e-Shahadat (10 of 1984), Art.114---Appeal to High Court---Contention was that Tribunal had decided the issue of valuation on the basis of office noting and that no formal adjudication had been made by concerned Authority nor conveyed to appellant, thus, Tribunal had no jurisdiction to entertain any appeal and decide same--­Validity---Such question could hardly be said to have arisen out of 'the order of Tribunal as it was never raised before Tribunal, rather Department had supported the order impugned before Tribunal and also the ascertained value describing the same to be fair and normal--­Question of law could be said to have arisen out of an order of Tribunal only if either it was mooted and ruled upon by Tribunal or else it arose as a natural consequence thereof---Department having owned and supported the impugned order before Tribunal, it could not be allowed to turn around and say that order assailed could not be subject of appeal before Tribunal---High Court dismissed the appeal in limine.

A. Karim Malik for the Revenue.

Mian Abdul Ghaffar for Respondent.

2002 C L C 616

[Lahore]

Before Naseem Sikandar and Mansoor Ahmad, JJ

Messrs SAIRA INDUSTRIES (PRIVATE BONDED WAREHOUSE)' INDUSTRIAL AREA, KOT LAKHPAT, LAHORE‑‑‑Appellant

Versus

COLLECTOR OF CUSTOMS (APPRAISEMENT) and another‑‑‑Respondents

Customs Appeal No. 166 of 1999, decided on 22nd October, 2001.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 30 & 79‑‑‑Determination of date and rate of duty‑‑‑Rate of custom duty to be charged on imported goods, if cleared for home consumption, would be the one in force on the date on which a Bill of Entry is presented for release of such goods‑‑‑Where clearance of goods is not sought immediately, but they are in‑bonded in a licensed warehouse, then the rate applicable would be the one in force on the day on which a Bill of Entry for clearance of such goods is presented.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 30, 79 & 104‑‑‑Difference between rates of duty in force on the day of filing of in‑bonding and ex‑bonding Bill of Entry‑‑‑Effect‑‑‑Goods in‑bonded in a licensed private warehouse was removed by importer without payment of duties‑‑‑Date and rate of duty‑‑‑Goods chargeable to duty according to S.30 of Customs Act, 1969 would be released on payment of custom duty at the rate prevalent either at the time of releasing such goods for home consumption by filing Bill of Entry or when Bill of Entry for ex‑bonding goods was presented‑‑‑If the importer had neither presented ex‑bond Bill of Entry nor communicated actual date of removal of goods, date of detection of removal of goods would be taken as the date of ex‑bonding and in such a situation, out of two rates, one prevalent on the day of in‑bonding and the other on the day ‑of ex­-bonding would be taken into comparison, and whichever was higher would be applied‑‑‑Rate on the day of in‑bonding in the present case being higher, it was correctly applied.

National Construction Company (Pvt.) Ltd. v. Government of Pakistan and others PLD 1989 Kar. 174 ref.

Mian Abdul Ghaffar for Appellant.

A. Karim Malik for Respondents.

Date of hearing: 4th October, 2001.

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2002 C L C 639

[Lahore]

Before Tanvir Bashir Ansari, J

FATEH MUHAMMAD ‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB‑‑‑Respondent

Civil Revision No:256/D/BWP and Regular Second Appeal No.42 of 1986, decided on 25th .October, 2001.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑Ss. 10, 19 & 36‑‑‑Sale of allotted land ‑‑‑Allottees of land in dispute, sold their rights to vendees and the Collector granted permission of said sale under S.19 of Colonization of Government Lands (Punjab) Act, 1912‑‑‑Vendees who were put in possession had acquired the status of tenants under the Government in accordance with S.10(4) of Colonization of Government Lands (Punjab) Act, 1912‑‑Subsequently after about two years the Collector passed order whereby the permission granted by him was set aside holding that said permission was only effective for a period of six months and as the mutation of sale transaction was not attested within said period, permission granted had automatically lapsed ‑‑‑Period of six months as contained in cl.(64) of Part IV of Colony Instruction was merely directory in nature and was primarily for the guidance of the officials performing functions under Colonization of Government Lands (Punjab) Act, '1912 and did not lay down a prescribed period of limitation as was understood under the law of limitation‑‑‑Non‑compliance of mutation within the period of six months would not ipso. facto nullify the permission granted for alienation because period of six months had never been treated to be mandatory within which the mutation had to be attested‑‑‑Collector who had acted as a delegatee of the Commissioner, could not exercise any power of re‑calling or revoking the permission once granted by him, especially when he had no power to review his own order‑‑‑Order cancelling permission was also a nullity in the eyes of law as Collector did not even issue notice to the vendee before passing order cancelling permission‑‑‑Procedure undertaken by Collector was wholly without authority and being against the principles of natural justice, was null and void.

Engineer‑in‑Chief v. Jalal‑ud‑Din PLD 1992 SC 207; Masud Ali v. Ali Haibat Khan PLD 1958 (W.P.) Lah. 340; Sher Muhammad Khan v. Ilam Din 1994 SCMR 470 and Mst. Rehmat Bibi v. Jhando Bibi 199; SCMR 1510 ref.

Muftiu‑ur‑Rahim for Petitioner.

Mian Muhammad Bashir, A.A.‑G. on behalf of Respondent No. l

Malik Abdul Ghafoor Awan for Respondent No.8.

Muhammad Mehmood Aslam Pirzada for Respondents Nos.9 and 10.

Aejaz Ahmed Ansari for Appellants (in R.S.A. No.42 of 1986).

Date of hearing: 5th October, 2001.

2002 C L C 649

[Lahore]

Before Tanvir Bashir Ansari, J

Ch. GHULAM MUHAMMAD ‑‑‑Petitioner

Versus

MUHAMMAD YASIN and others‑‑‑Respondents

Civil Revision No.445/D of 1984/BWP, decided on 2nd October, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑‑O. XXIII, R.3‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑‑Compromise of suit‑‑‑Family settlement‑‑‑Meaning and scope‑‑‑Respondent earlier filed suit claiming that he being an adopted son of the deceased owner of the suit‑land, was entitled to receive property of the deceased‑‑‑Said suit was decreed on basis of compromise whereby petitioners accepted the claim of the respondent subject to the condition that respondent could not claim inheritance in the estate of the deceased‑‑‑Plaintiffs who were widow and brother of the deceased brought suit for declaration against the respondent to the effect that alleged consent decree was the result of fraud and misrepresentation besides being unlawful‑‑-Suit was decreed by the Trial Court, but Appellate Court set aside the judgment and decree of the Trial Court holding that compromise arrived at between the parties would amount to a family settlement‑‑‑Validity‑‑‑Family settlement was an adjustment among the co‑sharers with an object to preserve peace and amity between members of a family and had to be based upon legal and equitable considerations‑‑‑If the family settlement was based upon an illegal consideration, same would itself become illegal and would not create any rights inter se the parties‑‑‑Compromise arrived at between the parties could not be considered as a lawful family settlement and could not be given effect to as such ‑‑‑Compromise in violation of principle of law was illegal and ineffective and would not operate as estoppel against a party to that compromise‑‑‑Judgment passed by Appellate Court below was set aside by High Court in revision.

Muhammad Irfan Azad v. Mst. Sultana Begum and 8 others PLD 1971 Kar. 91; Hussain Ali Khan v. Firoza Begum PLD 1971 Dacca 112; Binyameen and 3 others v. Ch. Hakim and another 1996 SCMR 336 and Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan PLD 1961 SC 376 ref.

Ch. Naseer Ahmad for Moeen‑ud‑Din Qureshi for Petitioners. Muhammad Jaffar Hashmi for Respondents Nos. l to 4. Ch. Parmoon Bashir for Respondents Nos. 19 and 20.

Date of hearing: 1st October, 2001.

2002 C L C 655

[Lahore]

Before Mushir Alam, J

MUHAMMAD ABID---Plaintiff

Versus

Mst. NASREEN YOUSUF and another----Defendants

Suit No.998 of 1999, decided on 12th November, 2001.

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

----S. 75 & O. XXVI, R.16---Local Commissioner---Powers---Scope--­Local Commissioner appointed under direction of High Court performs function of the Court and for all intents and purposes enjoys the same powers as the Court itself possessed---Non-compliance of direction of the Commissioner amounts to disobedience of the orders of the Court and all consequences attached thereto follows.

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

----O. VII, R.14, O. XI, Rr. 1 & 12, O.XIII, R.1 & O.XIV, R.4--­Production of document in a civil suit---Procedure.

Code of Civil Procedure lays down elaborate procedure where ­under documents sought to be relied upon may be produced or caused to be produced by a party to the proceedings.

First stage in a suit for production of documents for the plaintiff is at the time of filing of suit or presentation of plaint (Order 7, rule 14, C.P.C.) and for the defendant is at, the time of filing of written statement (see also 1991 SCMR 1935) if first stage is not availed of and a party considers that a document he seeks to rely upon in support of its claim or defense is in possession or control of other, then recourse to Order XI, rule 1, C.P.C. may be had whereby a party may be called upon to deliver interrogatories and in case it is not followed then a party to the proceedings may take recourse to Order XI, rule 12, C.P.C. and call upon other party to disclose all the documents in his possession relating to the question in issue. On disclosure of such documents same can be sought to be produced and inspected under the order of the Court. On the first date of hearing i.e. date of framing of issues, parties to the suit are required to produce all the documentary evidence of every description in their possession or power on which they intend to rely and which has not already been filed in Court (Order XIII, rule 1, C.P.C.) or where the Court is of opinion that issues cannot be correctly framed without inspection of some documents not produced in suit Court may compel the production of any ,such document by the person in whose possession or power it is (Order XIV, rule 4, C.P.C.), such exercise was neither undertaken by the defendant No. 1 nor necessity was felt by the Court at the time , of framing of issues to call for any such document.

1991 SCMR 1935 rel.

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

----Arts. 76, 77 & 159---Document, production of---Issuance of notice for production of the document---Requirement---Scope---Where a party seeks to rely upon a document which is in the possession/control of the party entering the witness-box, the recourse may be had to the provisions of Arts.76, 77 & 159 of the Qanun-e-Shahadat, 1984, calling upon the party through notice to produce the same---If notice is not complied with, the requisite essentials for adducing secondary evidence by producing copy of such document becomes available unless it is privileged or classified document.

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

----O. XIV, R.4---Production of documents---Powers of Court ---Scope--­Court can direct production of any document which in its opinion is necessary for striking any issue in terms of O.XIV, R.4, C. P. C.

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

----Arts. 76, 77, 159 & 161---Production of document---Person required to produce the document when in witness-box---Procedure---No notice as required under Arts.76, 77 & 159 of the Qanun-e-Shahadat, 1984, can be given in such a case---Only the Court in exercise of powers under Art.161 of Qanun-e-Shahadat, 1984, may direct production of the documents.

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

----Art. 161---Putting questions and direction to produce a-document--­Power of Court---Scope---Court, under the provisions of Art.161 of Qanun-e-Shahadat, 1984, has the power to compel a witness to answer any question or to produce any document that the Court may think necessary or relevant to discover the truth or obtain proper proof of the relevant fact---Such powers are to be used with great care and only when it is absolutely necessary in the interest of justice or of its own independent evaluation and assessment of the case and not otherwise and in doing so, Court is not swayed by the whims and fancy of any party.

State v. Balahadri Das Sutradhar PLD 1962 Dacca 467 and Kanchan Ali v. Shahjahan PLD 1962 Dacca 192 ref.

(g) Qanun-e-Shahadat (10 of1984)---

----Art. 161---Civil Procedure Code (V of 1908), O.VII, R.14, O.XI, Rr. 1, 12, O.XIII, R.1 & O.XIV, R.4---Production of documentary evidence---Jurisdiction of Court---Exercise of such jurisdiction--­Principles---Where -any party considers production of any document necessary, such party may have recourse to the provisions of Civil Procedure Code, 1908, but a party cannot compel a Court to exercise its power merely because the party considers production of any document necessary for proving its own case or to discredit the case of other party---If, the Court is of the opinion that production of any document is relevant and necessary for the just decision of the case, the powers under Art.161 of the Qanun-e-Shahadat, 1984, are to be exercised by the Court with circumspection in the interest of justice tin its own accord and initiative---Necessity and relevancy of the document must be felt by the Court itself and not at the behest or motion of any party--­Courts are required to maintain their neutrality and impartiality while exercising such powers, otherwise, the Court may be blamed of siding with a party in its expedition to fish evidence or to fill up the lacuna in the case.

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

----Art. 159---Calling a document in possession of other party---Failure to give notice for production of the document ---D6fendant had not served any notice calling upon plaintiff, who was in witness-box, for production of the documents that were considered necessary by him---Effect—High Court declined to compel or direct the plaintiff to produce the documents at the motion of the defendant in circumstances.

A I R 1954 SC 700 ref.

M.G. Distgir and Muhammad Sharif for Plaintiff.

Shaikh Mir Muhammad, Khalil-ur-Rehman and Adrian Ahmed for Defendants.

Date of hearing: 24th May, 2001.

2002 C L C 662

[Lahore]

Before Mansoor Ahmad, J

MUHAMMAD RAFIQUE through Legal Heirs and 2 others‑‑‑Petitioners

Versus

Mst. MARZIA SULTANA and 44 others‑‑‑Respondents

Civil Revision No.353/D of 1986, decided on 13th September, 2001.

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

‑‑‑‑O. XLI, R. 22, Ss.96 & 115‑‑‑Non‑filing of cross‑objections‑‑­Effect‑‑‑Assailing judgment and decree passed by Appellate Court in exercise of jurisdiction under S.96, C.P.C.‑‑‑Validity‑‑‑Where there was no divisible decree, mere--‑non‑filing of objections on the part of the petitioners would not militate their right to challenge the decree of the Appellate Court through revision petition.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑Ss. 53‑A & 41‑‑‑Part performance, principle of‑‑‑Object‑‑‑Doctrine of equity of part performance is enunciated by S.53‑A of the Transfer of Property Act, 1882 as such the same should be inured from the legally and enforceable contract between the transferor and the transferee‑‑­Provision of S.53‑A of the Transfer of Property Act, 1882 does not dilute the provisions of S.41 of the Transfer of Property Act, 1882, and the same merely lays down a principle of equity where transferee has paid the consideration and in part performance of a written contract he is in possession of the property‑‑‑Claim of possession of transferee should be under proper valid agreement‑‑‑Where the possession of transferee was not under proper, legal and enforceable' contract, the protection of S.53‑A of the Transfer of Property Act, 1882, was not available to him and the transferee could not use the same as a weapon to obtain a decree for declaration.

(c) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑Ss. 53‑A & 54‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑‑Holding possession in part performance of agreement to sell‑‑‑Imperfect title of owner at the time of executing agreement to sell in favour of plaintiffs‑‑‑Suit for declaration was filed by the plaintiffs which was dismissed by the Trial Court but the judgment and decree were reversed by the Appellate Court and the suit was decreed‑‑­Validity‑‑‑Contract for sale of immovable property under S.54 of the Transfer of Property Act, 1882, was a contract that sale of ‑such property would take place on terms settled between the parties‑‑‑Such contract by itself did not create any interest in or charge on such property‑‑‑Where owner of suit property was not having a perfected right in the property at time of execution of the agreement and she was only an allottee, such agreement to sell executed in favour of the plaintiffs did not create any right or interest in or charge on the suit property and the plaintiffs were merely holder of agreement to sell‑‑‑Plaintiffs, in the present case, did not acquire any right under the agreement to sell and even if they had acquired any semblance of right the same was lost with the flux of time‑‑­In absence of any valid subsisting contract in favour of the plaintiffs, the Appellate Court was not legally justified to award a decree of declaration in their favour‑‑‑Judgment and decree passed by the Appellate Court were set aside and suit was dismissed.

The Chief Land Commissioner, Punjab and another v. Ch. Atta Muhammad Bajwa and another 1991 SCMR 736; Sheikh Nazeer Ahmad v. Haji Ghulam Hussain 1985 CLC 7; M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore PLD 1966 (W.P.), Lah. 953; Muhammad Ali Akbar v. Mst. Fatima Begum AIR 1931 Lah. 591; Shah Nawaz Khan v. Province of Punjab 1997 MLD 173; Messrs Capital Farms, Islamabad v. National Development Finance Corporation PLD 1996 Lah. 99; Ilamuddin v. Syed Sarfraz Hussain 1999 CLC 312; Mst. Gulzar Bibi v. Public in General 1995 CLC 1551; Dosabai v. Mathurdas Govinddas AIR 1980 SC 1334; Sabir Ali v. Muhammad Mansa and others 1998 MLD 2068; Directorate of Industries and Mineral Development and others v. Messrs Masood Auto PLD 1991 Lah. 174; Amir Bakhsh and another v. Muhammad Ramzan and others 1990 MLD 245; AIR 1980 All. 36; Karam Dad v. Ghulam Qasim and others 1999 SCIVIR 2784; Afzal Khan v. Muhammad Lateef 1995 CLC 1951; Mst. Akhtar Begum v. Mian Aziz and others 1985 SCMR 1617 and Rama Asra and another v. Allah Jawaya and another AIR 1931 Lah. 595 ref.

Shahbaz Khurshid for Petitioners.

Saadia Malik on behalf of Kh. Haris Ahmad for Respondents.

Date of hearing: 19th July, 2001.

2002 C L C 678

[Lahore]

Before Naseem Sikandar and Mansoor Ahmad, JJ

SHAFI ULLAH---Appellant

Versus

TOUSIF AHMAD QURESHI, DEPUTY COLLECTOR and 3 others---Respondents

Custom Appeal No.232 of 2001, decided on 22nd October, 2001.

Customs Act (IV of 1969)---

----Ss. 194 & 196---Dismissal of appeal by Appellate Tribunal was barred by time by 318 days---Contention of the petitioner was that Tribunal had not considered the prayer for condonation of delay in its correct perspective, and that he being a Pushto-speaking could not communicate with public in general or know that he was being defrauded by his counsel---Validity---Every subject as against revenue was at a disadvantageous position once a demand had been created against him--­Prayer for condonation of delay by a subject in revenue matter, must be considered objectively, as the subject would never gain anything by. delaying an appeal or application---High Court partly accepted appeal and directed the Tribunal to reconsider the prayer of appellant for condonation of delay.

Aziz Ahmad Malik for Appellant.

Khan Muhammad Virk and Jhawar Hussain Naqvi for Respondents.

2002 C L C 681

[Lahore]

Before Mansoor Ahmad, J

Messrs VULCAN COMPANY (PVT.) LIMITED‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF FINANCE, CENTRAL BOARD OF REVENUE through Additional Secretary, and 2 others‑‑‑Respondents

Writ Petition No.5961 of 1996, heard on 17th October, 2001.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 32(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Show‑cause notice, corrigendum of‑‑‑Originally the notice was issued to the petitioner on the ground of under valuation but subsequently corrigendum was issued mentioning miscalculation instead of under valuation‑‑‑Contention of the petitioner was that the Authorities had to issue the notice de novo‑‑‑Validity‑‑‑Notice was issued to the petitioner within a period of six months and the corrigendum merely substituted the expression under valuation with that of miscalculation‑‑‑Such corrigendum could not be construed as notice de novo‑‑‑Error in calculating duties was either an innocent error or a deliberate mistake but the fact remained that the petitioner instead of making the payment of duties on whole consignment paid duty on less number of the goods imported‑‑‑Authorities observed that the error was not deliberate, therefore, the original show‑cause notice was rectified by substituting misdeclaration with miscalculation‑‑‑Authorities were well within their right to rectify and amend its original notice‑‑‑High Court refused to interfere in the matter‑‑‑Constitutional petition was dismissed accordingly.

Dr. Sohail Akhtar for Petitioner.

A. Karim Malik for Respondents.

Date of hearing: 17th October, 2001.

2002 C L C 689

[Lahore]

Before Tanvir Bashir Ansari, J

Mst. NOOR FATIMA ‑‑‑Petitioner

Versus

SHAH JI‑‑‑‑Respondent

Civil Revision No.334 of 1993, heard on 4th December, 2001.

(a) Punjab Laws Act (IV of 1872)‑‑‑

‑‑‑‑S. 5‑‑‑Muslim Personal Law (Shariat) Application Act.(XXXVI of 1937), S.2‑‑‑Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), S.2‑‑‑West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S.2‑A [as amended by Punjab Ordinance NO.XIlI of 1983)]‑‑‑Inheritance laws governing the Muslims‑‑‑History of laws discussed.

Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407 ref.

(b) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

‑‑‑‑S. 2‑A [as incorporated by Punjab Ordinance No.XIII, of 1983)]‑‑­Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), S.2‑‑‑Inheritance‑‑‑Legal shares‑‑‑While attesting mutation of inheritance, the plaintiffs were excluded from the property left by the predecessor‑in­-interest of the parties‑‑‑Contention of the plaintiffs was that the predecessor‑in‑interest of the plaintiffs was governed by Muslim Law of Succession‑‑‑Trial Court as well as the Appellate Court decided the suit against the plaintiffs as the predecessor‑in‑interest died before the promulgation of Punjab Muslim Personal Law (Shariat) Application Act, 1948‑‑‑Validity‑‑‑Question of death of the predecessor‑in‑interest of the plaintiffs before or after the promulgation of. Punjab Muslim Personal Law (Shariat) Application Act, 1948 was irrelevant‑‑‑Within the meaning of S.2‑A of the Punjab Muslim Personal Law (Shariat) Application. Act, 1962 [as incorporated by Punjab Ordinance No.XIII of 1983)], the predecessor‑in‑interest who had acquired the property in dispute before the commencement of West Punjab Muslim Personal Law (Shariat) Application Act, 1948, would be deemed to be the absolute owner of such land as if such land had devolved on him under Muslim Personal Law (Shariat) Application Act, 1937 and after his death all his Muslim legal heirs would inherit in accordance with their legal shares‑‑­Judgments and decrees passed by the two Courts below were set aside and suit of the plaintiffs was decreed by the High Court in exercise of revisional jurisdiction.

Ch. M. Yousaf for Petitioner.

Noor Muhammad Niazi for Respondent.

Date of hearing; 4th December, 2001.

2002 C L C 696

[Lahore]

Before M. Javed Buttar and Muhammad Saeed Akhtar, JJ

MUHAMMAD NIAZ MALIK and others---Appellants

Versus

PROVINCE OF PUNJAB and others---Respondents

Intra-Court Appeal No. 1 of 2002, decided on 3rd February, 2002.

(a) Punjab Minor Minerals Concession Rules, 1990---

----S. 48---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Maintainability---Notification issued by Governor of Punjab---Contention of the respondent was that since appeal under R.48 of the Punjab Minor Minerals Concession Rules. 1990, was provided, therefore the Intra-Court Appeal was not maintainable---Validity---Appeal was competent under R.48 of the Punjab Minor Minerals Concession Rules. 1990, before the Director of Industries and Mineral Development if a person was aggrieved by order of Licensing Authority passed under the Rules---Notification, in the present case, had been issued by the Governor Punjab and no appeal was provided against the order---Where the notice subject-matter of the appeal had been issued by the Authorities as a consequence of Notification issued by the Governor, the Intra-Court Appeal was maintainable.

(b) Regulations of Mines and Oilfields and Mineral Development (Government Control) Act (XXIV of 1948)---

----S. 6---Term "appropriate Government"---Meaning---Provincial Government is "appropriate Government".

(c) Punjab Minor Minerals Concession Rules, 1990---

----R. 31---Exclusion of land for public purposes---Scope---Whenever an area or a portion thereof held under a lease: is required by the Government at any time for any public purposes, the lessee under the provisions of R.31 of the Punjab Minor Minerals Concession Rules; 1990, is bound to hand over the same to the Licensing Authority.

(d) Environmental protection---

----Protection of environment---Responsibility of Government---Scope--­Consciousness regarding environmental protection is of recent origin and this sense is on the increase---Human society is always progressing, law cannot be static---Society changes and the law has to help in the form o1 such transformation---Balance has to be maintained between the conflicting interests---Plants posing danger to the health in the neighborhood have to be weighed against various considerations., such as welfare of the people---Government has the responsibilities in relation to environmental matters, river pollution, clean air and noise control.

Rural Litigation and Entitlement Kendra, Dehradun and others v. State of U.P. and others AIR 1985 SC 652 and Rural Litigation and Entitlement Kendra and others v. State of U.P. and others AIR 1987 SC 359 ref.

Environmental protection---

---- Protection of environment---Methods---Generally environmental matters can be tackled in three ways; voluntary efforts, regulatory regimes and economic means such as environmental taxation---Voluntary efforts have their limits---Regulations should be minimized so as not to hurt long term economic growth.

(f) Regulations of Mines and Oilfields and Mineral Development (Government Control) Act (XXIV of 1948)---

----S. 2---Punjab Minor Minerals Concession Rules, 1990, R.31---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Land required for public purposes---Protection of environment---Appellants were lessees of land and running business of stone crushing---Governor issued a notification whereby the land leased out to the appellants was declared as "buffer zone" ---Authorities directed the appellants to hand over the land to the Licensing Authorities as the same was required for public purpose---Appellants assailed vires of the Notification issued by the Governor in Constitutional petition---High Court disposed of the petition and directed the Government to look into the matter and to pass a lawful order after hearing the appellants--­Validity---To protect the environment the Government had chosen the process of regulation---Notification had been rightly issued in the public interest for public purpose in view of the importance of the area---High Court had provided ample relief to the appellants by allowing them to urge their contentions before the Government where all such matters could be thrashed out---Division Bench of High Court, in Intra-Court Appeal, declined to interfere with the order passed by the High Court.

Javaid Iqbal Abbasi & Company v. Province of Punjab and 6 others 1996 SCMR 1433; Saeed Afzal v. Mumtaz Hussain and others 1994 SCMR 2085; Pakistan through Ministry of Works, Government of Pakistan, Karachi and another v. Muhammad Ali .and others PLD 1960 SC 60; Hamabai Framjee v. Secretary of State for India AIR 1914 PC 20; Pakistan through the Secretary, Ministry of Defence v. Province of Punjab and others PLD 1975 SC 37; Muhammad Akbar through Legal Representatives and 7 others v. The Commissioner, Rawalpindi Division and 2 others PLD 1976 Lah. 747 and Muhammad Ashraf Khan v. Revenue E.A.C. and 7 others 1980 CLC 1504 ref.

Sh. Zameer Hussain for Appellants.

Maqbool Elahi Malik, A.G., Punjab for Respondents.

Date of hearing: 17th January, 2002.

2002 C L C 705

[Lahore]

Before Jawad S. Khawaja, J

KHAN TRADING COMPANY, GUJRANWALA‑‑‑Petitioner

Versus

COLLECTOR OF CUSTOMS, EXCISE AND SALES TAX (ADJUDICATION), LAHORE‑‑‑Respondent

Writ Petition No. 13890 of 2001, decided on 2nd August, 2001.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 194‑A(1)(a) & 195‑‑‑Term "Collector of Customs" as used in 5.195 of the Customs Act did not .include a Collector acting as an adjudicating Authority‑‑‑Any construction of the provision to the contrary would result in the odd situation, where an aggrieved person, who had obtained relief from Additional Collector (Adjudication), would stand deprived of his remedy before Appellate Tribunal against an adverse revisional order passed by Collector (Adjudication), because revisional order, not being an adjudication, would fall outside the scope of 5.194‑A(1)(a) of the Act.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 194‑A(1)(a) & 195‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Show‑cause notice issued by Collector (Adjudication) for re‑opening of petitioner's case already decided by competent adjudicating Authority vide order‑in‑original‑‑­Objection of Department as to maintainability of Constitutional petition was that decision of Collector (Adjudication) was appealable before Tribunal under 5.194‑A of the Act, thus, an alternate remedy was available to the petitioner‑‑‑Validity‑‑‑Only such decision or order could" be assailed in appeal under S.194‑A(1)(a) of the Customs Act, which had been passed by an officer of Customs functioning as an adjudicating Authority‑‑‑Decision of Collector (Adjudication) to issue impugned show­-cause notice had been made by him in purported exercise of revisional powers and not as an adjudicating Authority‑‑‑Issuance of impugned notice court not be termed as a decision of Collector (Adjudication) functioning as an,, adjudicating Authority, which decision could not be assailed before Appellate Tribunal‑‑‑Constitutional petition was maintainable, because law did not provide an alternate remedy to petitioner against the decision of Collector (Adjudication) to issue impugned show‑cause notice.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 3, 5, 179 [as substituted by Finance Ordinance (XXI of 2000)], 194‑A & 195‑‑‑Central Board of Revenue Notification No.S.R.0.448(I)/2000‑‑‑Segregation of functions between Adjudicating and Executive Authority‑‑‑Hierarchy established for adjudication of disputes between Customs Department and persons dealing with the same such as importers is separate and distinct from Collectorate of Customs exercising function of administering Customs Act and effecting recoveries there under on executive side ‑‑‑Collectorate on executive side entrusted with collection of revenue has been deliberately removed from the adjudicatory process ‑‑‑Revisional power set out in 5..195 of the Customs Act has to be examined in the light of various statutory provisions including 5.179 of the Act and Notification NO.S.R.0.448(1)/ 2000 issued there under by Central Board of Revenue‑‑‑Distinction between. Collector of Customs on executive side and Collector of Customs working as an adjudicating Authority is an essential feature of Customs Department as envisaged by various provisions of the Act including Ss.194‑A, 179, 5 & 3 thereof‑‑‑Officers of Customs designated as adjudicating Authorities are no longer Collectors of Revenue, but are meant to be impartial adjudicators, whose decisions are subject to appellate jurisdiction of Appellate Tribunal and High Court as provided for in the Act.

(d) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 18, 25, 26 & 195‑‑‑Constitution of Pakistan (1973'), Art. 199‑‑­Constitutional petition‑‑‑Show‑cause notice issued by Collector (Adjudication) for reopening of petitioner's case already decided by competent adjudicating Authority vide order‑in‑original, which was not challenged in appeal before Tribunal either by petitioner or respondent---­Department‑‑‑Contention of petitioner was that Collector (Adjudication) had no power to reopen the case and as such had no jurisdiction to issue the show‑cause notice‑‑‑Validity‑‑‑‑Collector (Adjudication) was not competent to reopen the case of petitioner, which had attained finality, resultantly, he had no jurisdiction to issue the impugned show‑cause notice.

(e) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 194‑A & 195‑‑‑"Revisional" and "Appellate" jurisdiction‑‑­Distinction ‑‑‑Revisional jurisdiction is in essence a supervisory jurisdiction, whereby a superior forum or functionary is empowered to oversee the functioning of a subordinate forum or functionary Revisional power is essentially a matter between the revising Authority and the subordinate forum or Authority, whose action is being overseen‑‑‑Revisional jurisdiction in such a sense is distinguishable from the power vested in an Appellate forum and that which is exercised by an adjudicating Authority of first instance.

Maqsood Ahmed Butt, Mian Sultan Tanvir and Imran Shafiq for Petitioner.

Khan Muhammad Virk for Respondent.

2002 C L C 711

[Lahore]

Before Malik Muhammad Qayyum, J

ZULFIQAR and others‑‑‑Petitioners

Versus

NOOR MUHAMMAD and others‑‑‑Respondents, Civil Revision No.701‑D of 1995, decided on 30th March, 2001.

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

‑‑‑‑S. 54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for permanent Injunction ‑‑‑Revisional jurisdiction, exercise of‑‑‑Objection as to maintainability of suit though was not specifically raised before the Courts below, but that being a legal objection could be raised at the time of revision before High Court.

Akhtar Nawaz khan and others v. Danial Khan and others NLR 1995 SCJ 169 and Ali Gohar Khan v. Sher Ayaz and others 1989 SCMR 130 ref.

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

‑‑‑‑S. 8‑‑‑Suit for possession of property by co‑sharers‑‑­Maintainability‑‑‑No suit for possession simpliciter should be filed by co­-sharers of suit‑land who must have asked for partition of the land if they were aggrieved by any action of other co‑sharers/defendants.

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

‑‑‑‑S. 54‑‑‑Civil Procedure Code (V of 1908), S.11‑‑‑Suit for permanent injunction ‑‑‑Res judicata‑‑‑Suit earlier filed by plaintiffs on same cause of action and with same prayer having been dismissed by the Trial Court could not be re-agitated by filing a second suit.

Noor Muhammad Awan for Petitioners.

Zahid Hussain Khan for Respondents.

Date of hearing: 30th March, 2001.

2002 C L C 714

[Lahore]

Before Mansoor Ahmad, J

Rai WALAYAT KHAN‑‑‑Petitioner

Versus

MUHAMMAD ASLAM‑‑‑Respondent

Civil Revision No.3578 of 1994, decided on 29th October, 2001.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 6 & 13‑‑‑Suit for pre‑emption ‑‑‑Trial Court dismissed suit holding that Talh‑e‑Muwasibat and Talb‑e‑Ishhad were not proved to have teen made by the plaintiff, but Appellate Court reversed the findings of Trial Court holding that both Talbs were proved‑‑‑Trial Court while rendering its findings on issue of Talbs had discussed in detail the evidence brought on record, but Appellate Court did not discuss the evidence to see whether Talb‑e‑Muwasibat was sufficiently proved or not and without offering any reason or discussion found that the Talbs were proved‑‑­-Validity‑‑-Judgment of Appellate Court suffered with misreading and non-reading of evidence---Appellate Court jurisdiction vested in it, judgment and decree passed by it were set aside and that of Trial Court were restored by High Court.

Muhammad Akram Salik for Petitioners.

M.M. Arshad for Respondent.

Date of hearing: 29th October, 2001.

2002 C L C 718

[Lahore]

Before Syed Jamshed Ali, J.

MUHAMMAD HANIF and others‑‑‑Petitioners

Versus

ABDUL HAMID and others‑‑‑Respondents

Civil Revision No. 1530 of 1997, decided on 27th March, 2001.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Maintainability‑‑‑Apart from the fact that revision petition was barred by time, record appended to revision petition had shown that even copy of decision of Appellate Court below was not placed on record‑‑‑Revision petition was liable to be dismissed on that short ground.

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

‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), S.5-‑‑Revision‑‑‑Limitation‑‑‑Delay, condonation of‑‑‑Petitioner had sought condonation of delay in filing revision petition contending that one of the legal heirs of deceased was abroad and was unaware of impugned judgment passed by Appellate Court‑‑‑Validity‑‑‑Ten appellants were before Appellate Court besides the said heir of deceased and any one of them could obtain certified copies to challenge judgment of Appellate Court‑‑‑Copies of judgment were obtained after more than one and a half year of judgment and revision was filed after more than one month from obtaining certified copies of judgment‑‑‑No case for condonation of delay having been made out, revision was liable to be dismissed being barred by time.

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.IX, Rr.8, 9 & O.XX, R.5‑‑‑Suit for declaration‑‑‑Dismissal of earlier suit for non‑appearance of plaintiff‑‑‑Fresh suit‑‑‑Maintainability‑‑‑Fresh suit was filed after about 10 years from dismissal of the earlier suit‑‑‑Plaintiffs had not urged that ‑fresh suit was based on different cause of action, but emphasis of the plaintiffs was that issues touching the merits of the controversy should have been decided by the Courts below‑‑‑Validity‑‑‑Contention was repelled because in accordance with O.XX, R.5, C.P.C. the Court had to state its finding or decision with reasons thereof upon each separate issue unless finding upon any one or more of the issues was sufficient for decision of the suit‑‑‑If after deciding one issue Trial Court had clearly recorded that in view of finding on that issue, other issues were not required to be determined, that course was permissible and no exception could be taken thereto.

Abdul Haq v. Mst. Ghulam Fatima and 3 others PLD 1987 Lah. 574 ref.

Rashid Murtaza Qureshi for Petitioners.

Zahid Hussain, Khan for Respondent No. 1

Date of hearing: 27th March, 2001.

2002 C L C 728

[Lahore]

Before Syed Jamshad Ali, J

DILSHAD MASIH and others‑‑‑Petitioners

Versus

SARFRAZ MASIH‑‑‑Respondent

Civil Revision No. 18 of 2000, decided on 17th October, 2000.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 8‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for possession‑‑‑Case set up in plaint by the plaintiff was that he had purchased land measuring 10 Marlas through registered sale‑deed and constructed his house thereon‑‑‑Plaintiff had claimed that on measurement of land it was found that the defendants had encroached upon the area purchased by him‑‑‑Trial Court decreed the suit‑‑‑Judgment and decree of the Trial Court were upheld in appeal holding that in demarcation made with the consent of parties it had been proved that area owned by the plaintiff was in illegal possession of the defendants/ petitioners‑‑‑Matter having stood concluded by concurrent findings of two Courts below, no case was made out for interference by High Court.

Anwar‑ul‑Haq Pannu for Petitioners.

Raza Hussain Shamsi for Respondent.

Date of hearing: 17th October, 2000.

2002 C L C 733

[Lahore]

Before Tanvir Bashir Ansari, J

SAJJAD MUNIR‑‑‑Petitioner

Versus

Mst. MURAD KHATOON and others‑‑‑‑Respondents

Civil Revision No.272‑D of 1986, decided on 29th January, 2002.

(a) Punjab Laws Act (IV of 1872)‑‑‑

‑‑‑‑S. 5‑‑‑Personal Law and Customary Law‑‑‑Applicability‑‑‑Muslim Law, under the provisions of.S.5 of the Punjab Laws Act, 1872, was the governing rule for the purposes of succession etc.‑‑‑Such governing rule was subject to any modification made by any custom which had to be specifically alleged and proved to have modified the Islamic Law‑‑‑Such proof had to be strong and creditworthy as the same was to override the Personal Law.

(b) Punjab Laws Act (IV of 1872)‑‑‑

‑‑‑‑S. 5‑‑‑Customary Law‑‑‑Overriding effect‑‑‑Scope‑‑‑Overriding effect of the custom to the extent provided by S.5 of the Punjab Laws Act, 1872, was unacceptable as the same was against the principles of Islamic Law and through legislative intent the effect of custom was done away with in phases.

(c) Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)‑‑‑

‑‑‑‑Preamble‑‑‑West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S.2‑A [added by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983), S.21‑Muslim Personal Law‑‑‑Retrospective effect‑‑‑Scope‑‑‑Overriding control of custom upon Muslim Law was done away with by promulgation of Punjab Islamic Personal Law (Shariat) Application Act, 1948‑‑‑With the incorporation of S.2‑A in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, retrospectivity was given to the application of Muslim Personal Law in all matters including succession.

Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407 ref. .

(d) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

‑‑‑‑S. 2‑A [added by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983), S.2)]‑‑‑Muslim Personal Law‑‑­Retrospective effect‑‑‑Concurrent finding of fact by the Courts below‑‑­Plaintiffs being daughters were excluded from the mutation of inheritance in the property left by deceased father of the parties‑‑‑Both the Courts below, concurrently decreed the suit in favour of the plaintiffs‑‑­Contention of the defendant was that the provisions of S.2‑A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, were not applicable retrospectively‑‑‑Validity‑‑‑Where the predecessor‑in‑interest of the parties was Muslim, upon his death, he was governed by Muslim Rule of Succession, notwithstanding that it occurred before 15‑3‑1948‑‑­Defendants even failed to prove the existence of any custom whereby the female heirs (plaintiffs) had been excluded from inheritance‑‑‑Estate of the predecessor‑in‑interest of the parties devolved upon all his legal heirs including the plaintiffs‑‑‑Concurrent findings of both the Courts on facts as well as on law did not suffer from any infirmity‑‑‑Revision was dismissed in circumstances.

Sajawal Shah and another v. Syed Rahim Shah and others PLD 1975 SC 325; Rati Ram and others v. Shera Ram and others AIR 1939 Lah. 53; Umar Din and another v. Mst. Sharifan and another PLD. 1995 SC 686; Shankar Lal and others v. Kailash Chand and others AIR 1939 Lah. 105; Sharu and 2 others v. Mst. Fatima and others 1993 CLC 625 ref.

Aejaz Ahmad Ansari for Petitioner.

Sh. Hakim Ali for Respondents.

Date of hearing: 29th January, 2002.

2002 C L C 760

[Lahore]

Before Tanvir Bashir Ansari, J

SARDAR MUHAMMAD ---Petitioner

Versus

Mst. SHAKURAN BIBI---Respondent

Civil Revision No.394 of 1990, decided on 24th October, 2001.

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

----Ss. 141, 115 & O.IX, R.2---Failure to deposit process fee---Revision was dismissed under O.IX, R.2, C.P.C. as the petitioner failed to deposit process-fee---Validity---Although the provisions of O.IX, R.2, C.P.C. were not ipso facto applicable to proceedings in revision, yet its principles were applicable upon the strength of S.141, C.P.C.

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

----Ss. 96, 115 & 141---Appellate and revisional jurisdiction of Courts--­Distinction---Interlocutory order; re-determination of---Validity--­Jurisdiction of Appellate Court in first appeal is wider than its revisional jurisdiction---First Appellate Court can go into all questions of law and fact and can lawfully reconsider and re-determine any interlocutory order passed by the Trial Court while the Appellate Court in proceedings to decide the appeal, cannot be influenced by the fact that an earlier revision against the interlocutory order has been dismissed by the Trial Court for non-deposit of process fee.

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

----S. 96, O.IX, R.2 & S.115---Re-determination of question subject-­matter of earlier revision petition---Application for comparison of thumb­ impression was dismissed by the Trial Court and the order of dismissal was assailed in revision petition before the Revising Court---Revision petition was dismissed by the Revising Court for non-deposit of process fee---Question of comparison of the thumb-impression was again agitated before the First Appellate Court at the time of disposal of first appeal--­Appellate Court found it necessary to have the thumb-impression compared, therefore, the appeal was allowed and the case was remanded to Trial Court for getting the thumb-impression compared by the Finger Print Expert---Contention of the petitioner was that once the revision petition for comparison of the thumb-impression had been dismissed by the Lower Revising Court, the same question could not be decided by the same Court in exercise of appellate jurisdiction under S.96, C.P.C.--­Validity---Same question which was the subject-matter of the earlier revision petition dismissed under O.IX, R.2, C.P.C. could be agitated through appeal filed against the final judgment and decree of the Trial Court---Where the Appellate Court considered that it was necessary to have the disputed thumb-impression compared with the purported thumb-­impression on the registered power of attorney and the relevant register, the Court should have proceeded to do the same itself at the appellate stage---Order of the Appellate Court to the extent of remanding the case to the Trial Court for comparison of thumb-impression was set aside and High Court directed the Appellate Court to itself get the disputed thumb-­impression compared with the alleged thumb-impression appearing on the alleged power of attorney and on the register of the Sub-Registrar, through Finger Prints Expert and thereafter decide the appeal in the light of evidence in accordance with law---Revision was allowed accordingly.

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

----Art. 84---Civil Procedure Code (V of 1908), S.151---Comparison of thumb-impression---Application for referring the matter to Finger Prints Expert---Objection was raised to the application that the same could not be filed after framing of issues or conclusion of evidence ---Validity--­Such objection was devoid of force as no law prohibited the filing of such application at any stage of the proceedings.

(e) Administration of justice---

---- Courts should act in aid of expeditious justice rather than protracting the same through unnecessary remand orders.

Ch. Naseer Ahmad for Petitioner.

Muhammad Mehmood Bhatti for Respondent.

Date of hearing: 24th October, 2001.

2002 C L C 722

[Lahore]

Before Amir Alam Khan and Muhammad Sair Ali, JJ

Rana BASHIR AHMAD‑‑‑Appellant

Versus

MUHAMMAD AFZAL‑‑‑Respondent

Regular First Appeal No.230 of 2001, decided on 7th November, 2001.

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

‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement‑‑‑Plaintiff, who was tenant of the defendant in respect of shop in question had filed suit contending that an agreement to sell the shop in his possession as tenant had been executed by the defendant whereby defendant had agreed to sell shop to the plaintiff‑‑‑Plaintiff had claimed that considerable amount had been paid by him to the defendant as earnest money and remaining amount was payable on specified date upon execution of the sale‑deed‑‑­Plaintiff had also alleged that instead of finalizing the sale‑deed, defendant had filed ejectment petition against the plaintiff in respect of the suit shop‑‑‑Trial Court dismissed suit filed by plaintiff for specific performance of agreement and accepted ejectment application filed by defendant against the plaintiff‑‑‑Validity‑‑‑Plaintiff not only had failed in proving the alleged agreement of sale, but also could not rebut the allegation of defendant that alleged agreement was forged, fabricated and fraudulent which was set up simply as defence to ejectment petition filed by defendant/landlord against plaintiff/tenant‑‑‑Suit was rightly dismissed by the Trial Court.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑‑

‑‑‑‑Art. 82‑‑‑Execution of document‑‑‑Proof‑‑‑Provisions of Art.82 of Qanun‑e-Shahadat, 1984 would come into play to obtain proof of the document through other evidence only when the attesting witnesses either denied or did not recollect the execution' of the document.

Fazal‑e‑Ghafoor v. Chairman, Tribunal Land Dispute, Dir and others 1993 SCMR 1073 ref.

Syed Kaleem Ahmad Khurshid for Appellant.

Date of hearing: 7th November, 2001.

2002 C L C 780

[Lahore]

Before Maulvi Anwar‑ul‑Haq, J

Messrs AIR HOME INTERNATIONAL‑‑‑Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary, Finance Civil Secretariat, Lahore and another‑‑‑Respondents

Writ Petitions Nos. 23229, 23193 to 23196, 23499, 23500, 23506, 22585, 23586 and 23283 of 2000, heard on 26th September, 2001

(a) Punjab Specified Instruments Stamp Rules, 1997‑‑‑

‑‑‑‑R.4‑‑‑Stamp Act (II of 1899), S .3 & Sched. I, Art. 11‑A [as inserted by Punjab Finance Act (XV of 1977)]‑‑‑Travel Agents Rules, 1977, R.4‑‑­ Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition Charging stamp duty on Air Tickets‑‑‑Duty of Travel Agents‑‑‑Provincial Government directed petitioners/Travel Agents to present record and deposit the amount received by them on account of stamp duty from sale of Air Tickets‑‑‑Validity‑‑‑Petitioners, by virtue of R.4(1)(2)(3) of Punjab Specified Instruments Stamp Rules, 1997, themselves had acted as agents of Provincial Government in the matter of receipt of such duty on sale of Air Tickets by them, and which under sub‑rule (4)‑ thereof were bound to immediately deposit with the Government‑‑‑Provincial Government under no principle of law and equity, could be restrained from recovering such amount received by petitioners‑‑‑Very purpose of Constitutional petitions was retention of ill‑gotten gains, therefore, no case was made out for exercise of Constitutional jurisdiction, which would not be exercised in such‑like matters‑‑‑Constitutional petitions were dismissed.

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

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑High Court would not allow retention of ill‑gotten gains in exercise of its Constitutional jurisdiction.

(c) Stamp Act (II of 1899)‑‑‑

‑‑‑‑Ss. 2(14), 3 & Sched. 1, Art. 11 ,A [as inserted by Punjab Finance Act (XV of 1977)]‑‑‑Constitution of Pakistan (1973), Art. 199, Fourth Sched., Federal Legislative List, Items Nos. 22 & 24‑‑‑Constitutional petition‑‑‑Levy of stamp duty on Air Tickets‑‑‑Contention was that Provincial Government was not competent to impose such duty, and that Air Tickets could not be deemed an instrument as defined in S.2(14) of Stamp Act 1899‑‑‑Validity‑‑‑Such contention would not carry weight, because by the time petitioners filed Constitutional petitions, such duty had already been withdrawn by the Provincial Government.

Dr. Ilyas Zafar for Petitioner.

Naseem Sabir, Addl. A.‑G. for Respondents.

Date of hearing: 26th September, 2001.

2002 C L C 790

[Lahore]

Before Amir Alam Khan and Muhammad Sair Ali, JJ, FIDA HUSSAIN and 2 others‑‑‑Appellants

versus

PROVINCE OF PUNJAB through Secretary, Settlement, Board of Revenue, Punjab, Lahore and 4 others‑‑‑Respondents

Intra‑Court Appeal No. 724 in Writ Petition No. 8798 of 2000, heard on 27th September, 2001.

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

‑‑‑‑Ss. 4, 6, 11, 16, 17 & 48‑‑‑Acquisition of land‑‑‑Withdrawal of notification‑‑‑Scope‑‑‑Notifications under Ss. 4 & 17, Land Acquisition Act, 1894 were issued‑‑‑Acquiring Department took over the possession of land and constructed road over the same and opened it for public use‑‑‑Notifications were withdrawn thereafter‑‑‑Validity‑‑‑Acquiring Department had taken over physical possession of the land in 1994, and had also deposited its compensation in 1996 and upon publishing notification in 1997 under S.17(4) of the Act, Government had technically acquired legal possession of land, which came to vest in it absolutely free from all burdens and encumbrances by virtue of S.17(1)‑‑­Government's power and discretion to withdraw from acquisition of land came to an end also by virtue of S.48 of the Act, except making and filing of award qua compensation to the landowners under S.11 of the Act‑‑‑Government had no authority, power or jurisdiction to recede from acquisition and withdraw such notifications for any reason whatsoever‑‑­Road having been completed receding from acquisition could not be said to be for the benefit of Government‑‑‑Impugned order was mala fide and being violative of S.48 of the Act was patently without jurisdiction and lawful authority.

Attorney‑General v. De Keyser's Royal Hotel Ltd. 1920 AC 508; M.S. Sheshagiri Rao and another v. The Special Land Acquisition and Rehabilitation Officer AIR 1965 Mys. 222; National Police Foundation Cooperative Housing Society Ltd, v. Board of Revenue, Government of Punjab, Lahore and 2 others PLD 1984 Lah. 191; Janana­ D‑Maloocho Textile Mills v. Commissioner, Peshawar Division NLR 1986 SCJ 42; Sadiq Hussain Qureshi and others v. Ahbab Cooperative Housing Society Ltd., Lahore and others NLR 1979 Revenue SC 210 and Ahbab Cooperative Housing Society Ltd., Lahore etc. v. Commissioner, Lahore Division, Lahore and 61 others PLD 1978. Lah. 273 ref.

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

‑‑‑‑Ss. 4, 11, 12 & 17‑‑‑L w Reforms Ordinance (XII of 1972), S.3‑‑­Constitutional petition‑‑‑Acquisition of land‑‑‑Non‑payment of compensation‑‑‑Notifications under Ss. 4 & 17 of Land Acquisition Act, 1894 were issued‑‑‑Acquiring Department took over possession of land in 1994 and deposited its compensation in 1996‑‑‑Authorities held number of inquiries, but no award was made in terms of 5.11 of Land Acquisition Act, 1894‑‑‑Petitioners' Constitutional petition seeking payment of compensation for acquired land was dismissed‑‑‑Validity‑‑‑Authorities were under statutory duty to finalize the last stage of acquisition by announcing the award in terms of S.11 of Land Acquisition Act, 1894, without any further delay‑‑‑Authorities having failed to perform their duty under the law Intra‑Court appeal was, accepted, order of Single Judge of High Court was set aside and Authorities concerned were directed to make and file an award under Ss. 11 & 12 of Land Acquisition Act, 1894 within a specified time.

AIR 1965 Mys. 222; Pannalal Maheshwari v. State of Bihar and others AIR 1955 Pat. 63 and Messrs Mehraj Flour Mill and another v. The Provincial Government and others 2001 SCMR 1806 ref.

Syed Kazim Bokhari for Appellants.

Muhammad Amin, Deputy District Officer (Revenue) for Respondents.

Date of hearing: 27th September, 2001.

2002 C L C 813

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Ch. WAHEED-UD‑DIN and another‑‑‑Petitioners

versus

Syed ASAD RAZA SHAH and 3 others‑‑‑Respondents

Writ Petition No. 14167 and Civil Miscellaneous Application No.3 of 2001, heard on 25th September, 2001.

(a) Punjab Local Government (Elections) Rules, 2000‑‑‑

‑‑‑‑R.18(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Rejection of nomination papers‑‑‑Factual controversies‑‑­Explanation to objection raised on nomination papers‑‑‑Objection raised to the nomination papers of returned candidate was that the same had not been signed by the candidate as he was in foreign country at the time of filing of the papers‑‑‑Returning Officer accepted the papers while District Returning Officer rejected the same‑‑‑Validity‑‑‑Intention of Legislature was not to reject the nomination papers at any cost‑‑‑If some reasonable explanation was made by any candidate same had to be considered‑‑­Whether the explanation was correct or incorrect that could only be decided after the recording of evidence and nomination papers could not be rejected in a summary proceedings where the factual controversies were involved and the matter required recording of evidence‑‑‑To contest the election was the vested right and no one could be deprived of such right merely on surmises and conjectures and could not arrive at conclusion based on oral assertions‑‑‑Procedure adopted by the District Returning Officer and rejection of nomination papers in the present case, had been done in illegal manner and the same could not be allowed to continue‑‑‑Order passed by the District Returning Officer was set aside and that of Returning Officer was maintained‑‑­Objectors could file election petition and could raise the objection before the competent forum‑‑‑Constitutional petition was allowed accordingly.

(b) Punjab Local Government (Elections) Rules, 2000‑‑‑

‑‑‑‑R.70‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Assailing of election‑‑‑Non‑raising of objection before earlier forums‑‑‑Validity‑‑‑Where any party had any grievance or wanted to raise some objections on the election of the returned candidate, such party could file election petition which was the only proper forum available to him in case the party had not contested the issue before earlier forums, that party could not challenge the same in the Constitutional petition.

Muhammad Yawar Ali for Petitioners.

Dr. Abdul Basit for Applicants in C.M. No. 3 of 2001.

Date of hearing: 25th September, 2001.

2002 C L C 819

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD YAQUB and others‑‑‑Petitioners

versus

MUHAMMAD IBRAHIM and others‑‑‑Respondents

Civil Revision No. 173 of 1980/BWP, heard on 2nd October, 2001.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.28 & Art. 144‑‑‑Suit for possession‑‑‑Limitation‑‑‑Inheritance mutation sanctioned on 5‑5‑1958 was challenged through suit filed on 10:5‑1974‑‑‑Plaintiffs claimed to be in joint possession of suit land on the basis of gift made in their favour by grandfather‑‑‑Trial Court decreed the suit, but Appellate Court dismissed the same being barred by time‑‑‑Validity‑‑‑Plaintiffs were not validly gifted the suit land, therefore, question of their being in joint possession would not arise‑‑‑Mutation was attested on 5‑5‑1958‑‑‑After expiry of 12 years, plaintiffs could not agitate such matter by bringing suit for possession‑‑‑Plaintiff's earlier possession was not in their own rights as co‑owners, therefore, their contention that for co‑owners to seek possession of specific portion of their share, no period was prescribed, was not well‑founded‑‑‑View taken by Appellate Court that suit was time‑barred was unexceptionable in circumstances.

Nazir Ahmed and others v Abdullah and others 1997 SCMR 281 ref.

(b) Islamic Law‑‑‑

‑‑‑ Gift of undivided property is not permissible under Islamic law.

(c) Islamic Law‑‑‑

‑‑‑Succession‑‑‑Entitlement to the succession is to be determined at the time when succession was opened.

(d) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S.4‑‑‑Succession‑‑‑Last full owner died before 1958 and immediately on' his death, succession opened and according to Islamic Law, children of his predeceased sons were not entitled to inherit the estate of deceased‑‑‑Provisions of S.4 of Muslim Family Laws Ordinance, 1961 has no retrospective effect and would not affect the past and closed transaction.

Manzur Ahmed and others v. Abdul Khaliq and others 1990 SCMR 1677 ref.

(e) Pleadings‑‑

‑‑‑‑No person could be allowed to plead beyond the scope of his pleadings.

(f) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

‑‑‑‑S. 2‑A [as inserted by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983)]‑‑‑Applicability‑‑­Section 2‑A [as amended for Punjab] was only applicable to the agricultural land acquired under the custom, and had no relevance to succession under Islamic Law, which had opened before its enforcement.

Muhammad Qasim Khan and others v. Mst. Mehbooba and others 1991 SCMR 515; Mst. Began v. Bai 1983 SCMR 80; Hakim Ali and others v. Barkat Bibi and others 1988 SCMR 293; Sardar v. Mst Nehmat Bi and others 1992 SCMR 82 and Mst. Naseeban and others v. Maqbool Ahmed PLD 1987 Lah. 654 ref.

M.M. Bhatti for Petitioner.

Masud Ahmad Khan for Respondent

Date of hearing: 2nd October, 2001

2002 C L C 909

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASHRAF‑‑‑Petitioner

versus

ABDUL AZIZ and 1l others‑‑‑‑Respondents

Civil Revision No. 191 of 1991, heard on 8th August, 2001.

(a) Land Reforms Regulation, 1972 (M.L.R.115)‑‑‑

‑‑‑‑Para. 22‑‑‑Civil Procedure Code (V of 1908), Ss.9 & 115‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.172‑‑‑Suit for declaration that order of partition passed by Revenue Officer was violative of M.L.R.115‑‑‑Maintainability‑‑‑Trial Court declared such order to be partly void, whereas Appellate Court declared same to be wholly void‑‑‑Validity‑‑‑Objection qua violation of M.L.R. 115 had to be raised before Revenue Officer and to be dealt with in accordance with the Rule of law laid down by Supreme Court in case of Mst. Aisha Bibi v. Nazir Ahmad and 10 others 1994 SCMR 1935, which by analogy would be applicable to an order of partition also‑‑­Neither Revenue Officer nor Civil Court nor Appellate Court while dealing with the case could take cognizance of the violation of M.L.R 115 and proceed to declare partition order to be void‑‑‑Provisions of Para.22 of Land Reforms Regulation. 1972 (M.L.R.115) had already been declared to be repugnant to Injunction of. Islam by Shariat Appellate Bench of Supreme Court‑‑‑High Court accepted revision petition and set aside both the impugned judgments and decrees with costs.

Mst. Aisha Bibi v. Nazir Ahmad and 10 others 1994 SCMR 1935 ref.

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

‑‑‑‑S: 141‑‑‑Partition proceedings‑‑‑Question of title requiring decision by Revenue Officer under S.141 of West Pakistan Land Revenue Act, 1967, would not arise in a case, where there was no private partition between parties and the land remained joint.

Muhammad Munir Peracha for Petitioner.

Waqas Rehman for Respondents Nos. l to 3.

Nemo for the Remaining Respondents.

Date of hearing: 8th August, 2001.

2002 C L C 918

[Lahore]

Before Shaikh Abdur Razzaq, J

KHADIM HUSSAIN ‑‑‑ Petitioner

versus

MUHAMMAD NAWAZ‑‑‑Respondent

Civil Revisions Nos.585‑D to 587‑D of 2000, decided on 28th November, 2000.

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5 & Art. 152‑‑‑Condonation of delay‑‑‑Appeal barred by ‑ ‑ ‑ damages was decreed against defendant‑‑‑Appeal against judgment and decree of Trial Court was dismissed by the Appellate Court being time‑barred‑‑‑Plea raised by the defendant was that he came to know about decision of Trial Court when he was arrested as a result of execution petition filed against him‑‑‑Record showed that the defendant remained present throughout during the trial and it was only when he failed to produce any evidence in spite of innumerable opportunities granted to him the suit was decreed‑‑‑Judgment and decree passed by Trial Court on 24‑3‑1998 was assailed by the defendant after the expiry of about two years‑‑‑Validity‑‑‑Delay of each and every day had to be explained while seeking condonation of delay in filing time-­barred appeal or revision as the case might be‑‑‑Since the defendant failed to satisfy the Court as to how he remained oblivious of the judgment and decree passed by the Trial Court, High Court declined to interfere with the impugned judgments and decrees‑‑­Revision was dismissed in limine.

Syed Masood Ahmed Gillani for Petitioner.

2002 C L C 924

[Lahore]

Before Jawwad S. Khawaja, J

FAYSAL BANK LIMITED‑‑‑Petitioner

versus

THE PROVINCE OF PUNJAB through Secretary, Excise and Taxation Department, Punjab, Lahore and 3 others‑‑‑Respondents

Writ Petition No.22307 of 2001., decided on 10th January, 2002.

West Pakistan Urban Immovable Property Tax Act (V of 1958)‑‑‑

‑‑‑‑Ss. 9 & 10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Valuation, assessment of‑‑‑Alternate remedy of appeal‑‑­Petitioner objected to the assessment made by the Authorities‑‑‑Plea of the Authorities was that the petitioner did not avail the remedy of appeal provided under S.10 of the West Pakistan Urban Immovable Property Tax Act, 1958‑‑‑Validity‑‑‑Remedy of appeal was available where the objection had been decided by the Authorities‑‑‑New building had been constructed in the present case, and the Authorities could only have assessed valuation in accordance with S.9 of the West Pakistan Urban Immovable Property Tax Act, 1958‑‑‑Where the statutory provisions had not been complied with, the notice for recovery of property tax was set aside‑‑‑High Court allowed the Authorities to decide the matter afresh after affording opportunity of hearing to the petitioner‑‑‑Petition was allowed accordingly.

Tariq Kamal Qazi for Petitioner.

Zahid Aslam Khan, Asstt. A.‑G.

2002 C L C 929

[Lahore]

Before Ch. Ijaz Ahmad, J

WAHEED AZMAT SHEIKH---Petitioner

versus

CHAIRMAN, HABIB BANK LIMITED and 2 others----Respondents

Writ Petition No. 17484 of 2001, decided on 25th October, 2001.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Concealment of facts--­Effect---High Court refused to exercise discretion in favour of petitioner for not having mentioned in Constitutional petition even a single word with regard to filing and dismissal of his earlier Constitutional petition and pendency of his appeal before Service Tribunal.

Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayat Ullah Farukhi PLD 1969 SC 407; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Nawab Syed Raunaq Ali's case PLD 1973 SC 236 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), Preamble---Principles of Civil Procedure Code, 1908, are applicable to proceedings under Art. 199 of the Constitution.

Hussain Bakhsh's case PLD 1970 SC 1 ref.

(c) Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), S.11---Constitutional petition ---Res judicata---Second writ petition qua same subject-matter, cause of action and relief would not be maintainable by virtue of principles of S. 11 of C.P.C. as well as by principles of constructive res judicata.

Pir Bakhsh's case PLD 1987 SC 145 ref.

(d) Equity---

---- He who seeks equity trust come with clean hands.

Nazir Ahmad Qureshi for Petitioner

Mian Muhammad Saleem for Respondents.

2002 C L C 937

[Lahore]

Before Ch. Ijaz Ahmad, J

JAVED IQBAL‑‑‑Petitioner

versus

ZILA COUNCIL, SIALKOT through Chairman and 4 others‑‑‑Respondents

Writ Petition No.6455 of 1992 and Review Application No.132 of 1993. decided on 27th September, 2001.

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

‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), O. XLVII, Rr.l & 2‑‑­Constitutional petition‑‑‑Review‑‑‑Notice was not received by the respondents well in time‑‑‑Petition was disposed of in absence of the respondents‑‑‑Validity‑‑‑Where the respondents were not present in the Court, order passed on that date was recalled‑‑‑Review petition was allowed accordingly.

(b) Punjab Local Councils (Lease) Rules, 1990‑‑‑

‑‑‑‑R. 4(1)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Auction‑‑‑Petitioner being the highest bidder, agreement was executed between the parties‑‑‑After conclusion of auction proceedings, third party raised objection to the proceedings on the ground that the same were conducted five days after the press publication, instead of seven days as required under R.4(1) of the Punjab Local Councils (Lease) Rules, 1990‑‑‑Third party made an offer to pay 10% over and above the highest bid given by the petitioner‑‑‑Authorities accepted the offer of the third party‑‑‑Validity‑‑‑Where period for holding auction was at least 7 days in terms of R.4(1) of the Punjab Local Councils (Lease) Rules, 1990, and the same was not given, auction proceedings were held in violation of the mandatory provisions of Rules‑‑‑High Court, to avoid multiplicity of proceedings, directed the petitioner to pay 10% more over and above the auction price and disposed of the petition accordingly.

Abdul Hamid's case 1997 CLC 540 ref.

(c) Illegal order‑‑‑

‑‑‑‑ Where basic order is without lawful authority, the superstructure falls on ground automatically.

Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104 and Crescent Sugar Mills' case PLD 1982 Lah. 1 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Subsequent events‑‑­Consideration‑‑‑High Court has ample power to look into subsequent events at the time of deciding Constitutional petition.

Nasir Jamal v. Zubeida Begum 1990 CLC 1069 ref.

Ali Ahmad Awan for Petitioner.

C.A. Rehman for Respondents.

Malik Akhtar Hussain Awan, Addl. A.‑G.

2002 C L C 942

[Lahore]

Before Muhammad Khalid Alvi and Nazir Ahmad Siddiqui, JJ

MUHAMMAD INAYAT and another‑‑‑Appellants

Versus

MUHAMMAD SIDDIQUE and 8 others‑‑‑Respondents

Regular First Appeal No.34 of 1989, heard on 1st October, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.59‑‑‑Suit for specific performance of agreement to sell‑‑‑Defendant termed such agreement to be a forged document‑‑‑Trial Court dismissed the suit‑‑‑Validity‑‑‑High Court on plaintiffs' request got thumb‑impression of defendant and compared the same with thumb‑impression on disputed agreement attributed to defendant, and found marked difference between the two‑‑­High Court refused to get an expert opinion in the matter as such difference was evident and clear to naked eyes‑‑‑Stamp paper of disputed agreement as per record was purchased from M, whereas suit‑land was situated at ML and agreement was executed at V‑‑‑Scribe of agreement was neither having licence as petition‑writer nor did he sign same nor he was in possession of relevant register, wherein disputed agreement was entered‑‑‑Marginal witness of agreement had been involved in 8/10 criminal cases‑‑‑Defendant had no male issue and one of the plaintiffs was his cousin, who had tried to grab the property of defendant‑‑­Statement of stamp‑vendor denying to have sold stamp paper of disputed agreement was not subjected to cross‑examination by plaintiffs‑‑‑Number of National Identity Card on disputed agreement attributed to defendant was also found to be incorrect when compared with his original National Identity Card‑‑‑Disputed agreement to sell was a forged document, which could not be relied upon.

Ch. Abdul Ghani for Appellants.

Mirza Manzoor Ahmad for Respondents.

Date of hearing: 1st October, 2001.

2002 C L C 945

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. NUSRAT MASOOD CH. ‑‑‑Petitioner

versus

PRESIDENT, LAHORE DEVELOPMENT AUTHORITY TRIBUNAL and 2 others‑‑‑Respondents

Writ Petition No.5897 of 1991, heard on 12th November, 2001.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Constitutional jurisdiction is discretionary in character‑‑ ‑Where substantial justice has been done between the parties, High Court would not exercise discretion in favour of petitioner.

Syed Nawab Raunaq Ali's case PLD 1973 SC 236 and Mst. Irshad Begum v. L.D.A. 1987 SCMR 816 ref.

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

‑‑‑‑Preamble‑‑‑Land Acquisition Act, 1894, is a complete Code in itself prescribing mainly provisions for fair and adequate compensation to land­owners whose lands have been acquired compulsorily.

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

‑‑‑‑S. 23‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.57‑‑‑Market value, determination of‑‑‑Previous decisions in land acquisition cases are relevant in subsequent cases, where market value of land in the same neighbourhood is in issue.

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

‑‑‑‑S. 53‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑‑No inconsistency exists between provisions of Land Acquisition Act, 1894 and Civil Procedure Code, 1908.

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

‑‑‑‑S. 18‑‑‑Civil Procedure Code (V of ‑1908), O.XXIII, R.3‑‑‑Punjab Town Improvement Act (IV of 1922), S.36‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Reference pending before Development Authority Tribunal‑‑‑Parties executed agreement after issuance of Exemption Policy, whereunder some of the petitioners' plots were exempted and she was also to get compensation for remaining land at assessed rate‑‑‑Tribunal under provisions of O.XXIII, R.3, C.P.C. non‑suited the petitioner on the basis of such agreement ‑‑‑Validity‑‑­Order XXIII, R.3, C.P.C., was applicable as petitioner had voluntarily executed agreement with the Authorities‑‑‑Petitioner had accepted exempted developed plot to the extent of 2/3rd of her acquired land, whereas her 1/3rd land had been taken by Authorities for proportionate contribution for roads and other utilities‑‑‑Petitioner had paid development charges of exempted plot during pendency of reference and had already constructed house over it‑‑‑Petitioner had also to get compensation for additional land, which she was entitled to get at such enhanced rate as had been awarded by Tribunal in another case qua adjacent land acquired through same notification‑‑‑Constitutional petition was liable to be dismissed on principle of approbate and reprobate‑‑Substantial justice having been done between the parties, High Court refused to exercise discretion in favour of petitioner‑‑‑Constitutional petition was partly accepted with direction to the Authorities to pay compensation to petitioner for her remaining land at the rate determined by Tribunal in another case.

PLD 1981 SC 516; AIR 1930 PC 64; 1985 SCMR 1865; Ezra v. Secretary of State for India‑in‑Council and others 32 IC 93; PLD 1980 SC 516; AIR 1965 Mys. 222; AIR 1946 PC 75; Pakistan through Secretary v: Abdul Aleem 1987 CLC 2403; Government of Pakistan v. Abdul Aleem 1991 SCMR 1920; Maung May v. U.Ge AIR 1939 Rang. 300; Zardad Khan and others v. Government of N.‑W.F.P. and others 1987 SCMR 1387; Jajatput Dugar v. Puran Chand Nahatta and another AIR 1924 PC 200; Muhammad Hafeez and another v. Lahore Development Authority PLD 1980 Lah. 553; Ghulam Rasool's case PLD 1971 SC 376; Madan Mohan Burman v. Secretary of State of India 1978 IC 557; AIR 1925 Cal. 481; Ram Ranjan Chuckerbutty v. Narain Singh and others (1894) 22 IA 60 and Bitto Kunwar's case (1897) 24 IA 10 ref.

(f) Practice and procedure‑‑‑

‑‑‑‑ Each and every case has to be decided on its own peculiar circumstances.

Masood Zakria for Petitioner.

Mian Muzaffar Hussain for Respondents.

Date of hearing: 12th November, 2001.

2002 C L C 959

[Lahore]

Before Shaikh Abdur Razzaq, J

MUHAMMAD TARIQ‑‑‑Petitioner

versus

JUDGE, FAMILY COURT, KHANPUR and 2 others‑Respondents

Writ Petition No.2848 of 2001/BWP, decided on 12th June, 2001.

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

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Interim order‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Family Court while staying execution of decree directed petitioner to deposit Rs.1,000 per month as maintenance allowance of his wife and daughter till decision of his application for setting aside ex parte decree‑‑‑Constitutional petition was disposed of with observation that such interim order could be challenged at the time of filing appeal against final decision of application for setting aside ex parte decree.

Muhammad Akram v. Mst. Raheela Aslam and 2 others PLD 1999 Lah. 33 ref.

Muhammad Aslam Khan Dhukkar for Petitioner.

2002 C L C 960

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD ISLAM KHAN‑‑‑Petitioner

versus

MUHAMMAD ANWAR KHAN and another‑‑‑Respondents

Civil Revision No.450‑D of 1994/BWP, heard on 15th May, 2001.

(a) Qannn-e-Shahadat (10 of 1984)---

----Arts. 117 & 119---Burden of proof---Non-appearance, of defendant in witness-box---Effect---Where burden of proof was on the plaintiff, non­appearance of defendant in witness-box was not of much consequence.

Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890; Fazal Dad and others v. Jehandad and others 1991 CLC 1783; Riasat Ali v. Muhammad Jaffar Khan and 2 others 1991 SCMR 496 and Noorul Amin and another v. Muhammad Hashim and 27 others 1992 SCMR 1744 ref.

(b) Qanun-e-Sbahadat (10 of 1984)---

----Arts. 117 & 119---Specific Relief Act (I of 1877), S.12---Specific performance of agreement---Concurrent findings of fact by the Courts below---Burden of proof---Non-appearance of defendant in witness-box--­Both the Courts below concurrently found that disputed agreement was not executed by defendant hence suit as well as appeal were dismissed--­Contention of the plaintiff was that as the defendant did not appear in the witness-box, the judgments and decrees passed by the Courts below were illegal and against the facts---Validity---Where initial burden of proof was upon the plaintiff and he failed to discharge the same, non-appearance of the defendant was not material---Concurrent findings of both the Courts below did not suffer from any misreading or non-reading of evidence which could warrant interference in revisional jurisdiction.

Mst. Sabiran Bi v. Ahmad Khan and another 2000 SCMR 847 ref.

Muhammad Jaffar Hashmi for Petitioner, M.M. Bhatti and Ch. Abdul Sattar for Respondents.

Date of hearing: 15th May, 2001

2002 C L C 967

[Lahore]

Before Marssoor Ahmad, J

NAZIR AHMAD---Petitioner

versus

ALLAH DITTA alias BAGHA KHAN---Respondent

Civil Revision No.3897 of 1994, decided on 26th October, 2001.

Punjab Pre-emption Act (I of 1913)---

---S. 15---Pre-emption decree passed on 19-1-1978---Rule laid down in Sardar Ali's case PLD 1988 SC 287 would apply to such decree having been passed before 31-7-1987---Pre-emptor would be entitled to seek restoration of such decree, though it might be ex parte in his favour, on ire basis of pre-existing law, and all other proceedings in connection Herewith would be governed and decided under the provisions of Punjab pre-emption Act, 1913.

PLD 1990 SC 865; Sardar Ali's case PLD 1988 SC 287; .ahadur Khan v. Muhammad Yousaf and others 1992 SCMR 2117; Ghulam Rasool and others v. Faiz Bakhsh 1992 SCMR 1328 and Muhammad Salam and others v. Wali Muhammad and other 1997 SCMR 108 ref.

Agha Taj Muhammad for Petitioner.

Syed Fayyaz Ahmed Sherazi for Respondent.

Date of hearing: 4th October, 2001.

2002 C L C 969

[Lahore]

Before Ghulam Mahmood Qureshi, J

Haji MUHAMMAD AQIL---Petitioner

versus

GHULAM MUHAMMAD and another---Respondents

Civil Revision No. 19-D of 1981/BWP, heard on 10th January, 2001.

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

---Ss. 96 & 100---"Appeal from original decree" and "appellate decree"---Scope and distinction---In an appeal from original decree, the appeal is both on facts and law, whereas in an appeal from appellate decree, the appeal is only on law---In original appeal, commonly called first appeal, the First Appellate Court is final Court of facts.

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

----S. 96 & :O.XLI, R.11---Dismissal of first appeal in limine---First Appellate Court is final Court of facts---Dismissal of first appeal under O.XLI, R.11, C.P.C. is not a general rule---If facts are not simple, then first appeal should not generally be dismissed in limine.

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

----S. 96 & O.XLI, R.11 read with S.115---Appeal---Dismissal of appeal in limine without summoning record of Trial Court and without considering grounds specifically taken in memo. of appeal ---Validity--­Appellate Court had dismissed the appeal without considering the plea of limitation taken in memo,, of appeal- and recording proper findings on the issue---.Both such issues-could not be decided without summoning record and affording opportunity of hearing to parties concerned---Both on facts and law, it was not a case, which could be dismissed in limine by final Court of facts---High Court accepted revision petition and set aside impugned judgment/decree holding that appeal. would be deemed to be pending and would be decided in accordance with law.

Sh. Hakim Ali for Petitioner.

Qamar Hameed Hashmi for Respondents.

Date of hearing: 10th January, 2001.

2002 C L C 971

[Lahore]

Before Muhammad Sair Ali, J

Subedar (Retired) MUHAMMAD KHAN---Petitioner

versus

ADALAT KHAN and another---Respondents

Civil Revisions Nos.3557/D of 1994 and 1855/1) of 1995, decided on 21st September, 2001.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 24(2) & 35---Punj&P Pre-emption Ordinance (V of 1990), S.36--­Dismissal of suit for non-deposit of "Zar-e-Soam"---Suit was revived on 19-4-1992 by virtue of S.36 of Punjab Pre-emption Ordinance, 1991--­Plaintiff was ordered to deposit within 20 days "Zar-e-Soam" after deducting "Zar-e-Punjam" deposited by him after filing of suit on 9-9-1988---Plaintiff failed to deposit such amount within 20 days, therefore, Trial Court rejected his application for extension of time and dismissed the suit---Contention of the plaintiff was that date of revival of suit could not be taken to be the date of filing of suit, which had been filed on 9-9-1987---Validity---Revived suit had to be "decided afresh" under S.35 of the Punjab Pre-emption Act, 1991--=Expression "Decision afresh" as used in S.35 would include all the processes and proceedings required to be undertaken under the Act including deposit of "Zar-e­Soam" by plaintiff---Trial Court was legally justified in fixing 20 days period for deposit of balance "Zar~e-Soam" by plaintiff---Suit had validly been dismissed under S.24(2) of •he Act on the failure of plaintiff to deposit the balance amount of Zar-e-Soam alongwith rejection of application for extension of time.

Ghulam Hassan v. Jamshed Ali and others 2001 SCMR 1001; Jamshed Ali v. Ghulam Hassa" 1995 CLC 957; Riaz Ahmed v. Additional District Judge, Sargodha and another 1999 YLR 336. and Khalid Mahmood v. Abdur Rashead and another 2000 YLR 1249 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 30 & 35(2)---Punjab Pre-emption Ordinance (V of 1990), S. 36---Suit for pre-emption was revived on 26-6-1991 on application made tinder S.36 of Punjab Pre-emption Ordinance, 1991 and dismissed on 14-2-1994 being beyond period of 4 months fixed under S.30 of Punjab Pre-emption Act, 1991, in view of judgment of Supreme Court titled Haji Rang Muhammad Shabbir Ahmad Khan v. Government of Punjab Province (PLD 1994 SC 1)---Plaintiff's appeal was dismissed by Appellate Court---Validity---Supreme Court having declared S.35(2) of Punjab Pre­emption Act, 1991 to be repugnant to Injunctions of Islam w.e.f. 31-12-1993, Courts below had exceeded their jurisdiction and committed material irregularity in misinterpreting the judgment of Supreme Court by giving same retrospective effect, which could not be applied to suits filed prior to 31-12-1993---High Court accepted revision petition, set aside impugned judgments and decrees, and remanded the suit to Trial Court for its decision afresh in accordance with law.

PLD 1986 SC 360; Mst. Safia Begum's case PLD 1989 SC 314; Ghulam Hamdani v. Muhammad Iqbal and 9 others 1993 SCMR 1083; Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province PLD 1994 SC 1; Ghulam Hassan v. Jamshed Ali and others 2001 SCMR 1001; Jamshed Ali v. Ghulam Hassan 1995 CLC 957; Riaz Ahmed v. Additional District Judge, Sargodha and another 1999 YLR 336; Khalid Mahmood v. Abdur Rasheed and another 1999 YLR 1249; Jamal-ud-Din and another v. Allah Bakhsh and another 1994 CLC 1957; Muhammad Khan v. Subah Sadiq and another 1999 YLR 923; Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200 and Muhammad Hussain and others v. Muhammad and others 2000 SCMR 367 ref.

(c) Punjab Pre-emption Act (IX of 1991)---

---Ss. 35 & 24(2)---Words "decided afresh" as used in S.35, Punjab 're-emption Act; 1991---Connotation and scope---Words "decided afresh" would mean to pass new orders and take all decisions required by Punjab Pre-emption Act, 1991 including deposit of "Zar-e-Soam". by the pre-emptor.

Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 ref.

(d) Interpretation of statutes---

---Judgment declaring a provision of statute as ultra vires applies prospectively and not retrospectively.

(e) Words and phrases---

---Afresh"---Word' "fresh" means new, recent, newly made.

Oxford Dictionary, Vol. IV ref.

(f) Words and phrases---

--"Afresh"---Meanings---Word "fresh" pre-fixed with letter "a" grammatically assumes wider dimension to mean "anew", new and recent all respects

Mehdi Khan Chohan for Petitioner.

Mian Sher Alam for Respondents.

Date of hearing: 12th June, 2001.

2002 C L C 985

[Lahore]

Before Amir A lam Khan and Muhammad Sair Ali, JJ

DIVISIONAL ENGINEER (DEV.) N-II T&T, GUJRANWALA and 3 others---Appellants

versus

Rana MUHAMMAD SHARIF----Respondent

Intra-Court Appeal No. 167 of 2001, arising out of Writ Petition No. 190) of 1987, heard on 15th October, 2001.

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

----Preamble---Interpretation of Land Acquisition Act, 1894---Land Acquisition Act, 1894, is a confiscatory statute designed to deprive citizens of their valuable rights in property through coercive measures by State exercising authority under a Statute---Provisions of the Act are to be strictly construed to jealously ensure protection, preservation and maintenance of rights and interests of citizens.

Province of Punjab v. Mufti Muhammad Ishaq PLD 1984 Lah. 261 ref.

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

----S. 5---Delay in acquisition proceedings---Effect---Without reasonable, plausible and compelling explanation of delay in completion of process of acquisition and payment of compensation to affected persons, Acquiring Authority should not be crowned for its inaction, delay, indifference and lack of vigilance in performance of its statutory duties as provided under the Act.

(c) Land Acquisition Act (I of 1894)---

----S. 5---"At any time"---Meaning---Words "at any time" as used in S.5 of the Act would not mean time ad infinitum, but would mean within a reasonable time.

Allah. Ditta and others v. Province of Punjab PLD 1997 Lah. 499

(d) Land Acquisition Act (I of 1894)---

----Ss. 4, 5, 5-A, 6 & 17---Constitution of Pakistan (1973), Art.199---Law Reforms Ordinance (XII of 1972), S.3---Constitutional petition---Acquisition proceedings---Preliminary notification under S.4 of the Act was published after two years of its issuance---Neither notification under S.4 nor declaration under S.5 of the Act was issued thereafter---After 4 years and 3 months of issuance of preliminary notification and about 2' years and 2 months after its publication, appellants issued notification under S.17 of the Act, which was published 1-1/2 months thereafter and order for taking over possession was issued---Constitutional petition filed by respondent was accepted and notification and order of taking over possession was declared to be illegal and without lawful authority--­Validity---Such events, notifications and orders clearly demonstrated lethargic, indolent, inactive and indifferent manner of Acquisition Authorities throughout the acquisition proceedings---Authorities appeared to be unconscious of prompt and efficient performance of statutory duties and enjoined upon them in section-to-section mandate provided in the scheme of the Act---Authorities seemed to be indifferent to dispensation of corresponding rights vesting in respondent, whose land had been compulsorily acquired---Provisions of Ss.5 & 5-A of the Act became inapplicable qua determination of compensation and objections thereto on account of protection available to appellant under S.17---Authorities had probably been under impression that their discretion and actions were not subject to period constraints ---Miscomprehensions of the Authorities had enlarged the legally restricted period of "at any time" to mean "all the time"---Such misinterpretation would obviously make the performance of duties by Acquiring Authorities as without time cap and open ended which could not be the purpose and meaning of the law of acquisition, which in no way could be taken to be an instrument of injustice, oppression, defeat and frustration for citizens---Notifications, orders and actions of appellants were justifiable on the touchstone of duties and obligations placed upon them by the Act---High Court had jurisdiction to grant such declaration while examining the illegality of actions of appellants---High Court under its Constitutional, jurisdiction, therefore, was justified in accepting the Constitutional petition.

Government of Pakistan, Secretaries, Works, Communications and Physical Planning v. Tauqir Ahmad Khan and others 1996 SCMR 968; Attorney-General v. De Keyser's Royal Hotel 1920 AC 508 ref.

Kh. Saieed-uz-Zafar, Dy. A.-G. for Appellants.

Sh. Abdul Aziz for Respondents.

Date of hearing: 15th October, 2001.

2002 C L C 992

[Lahore]

Before Maulvi Anwarul Haq, J

Mirza ASAD ULLAH through Legal Heirs---Petitioner

versus

SHARIF AHMAD---Respondent

Civil Revision No.353/D and Writ Petition No.599 of 2000, heard on 18th July, 2001.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Specific Relief Act (I of 1877), S.12---Ejectment proceedings and suit for specific performance of agreement to sell the rented property---Consolidation---Objection---Tenant raised the objection with regard to consolidation of proceedings before High Court after the Rent Controller allowed the ejectment application and the order of ejectment was upheld by the Appellate Court---Tenant, in the present case, had been afforded the luxury of fighting out the case of specific performance of agreement with the landlord while remaining in possession of the premises notwithstanding the fact that he was not complying with the terms of tenancy or the landlord had become entitled to the possession of the premises---Validity---The matter was consolidated on the request contained in application of the tenant and the proceedings were conducted accordingly, no prejudice had been claimed because of the consolidation at any stage---Objection raised by the tenant was repelled in circumstances.

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

----S. 12---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Civil Procedure Code (V of 1908), S.115---Qanun-e-Shahadat (10 of 1984), Art.84---Specific performance of agreement to sell---Signatures on agreement---Comparison. by Court---Petitioner being tenant in the suit property claimed to be owner on the basis of agreement to sell and the matter was decided against him by the Rent Controller as well as by the Civil Court---Landlord denied execution of any agreement to sell in favour of the tenant---Both the Courts below concurrently dismissed the claim of the tenant and suit for specific performance of agreement to sell was dismissed and the ejectment of the tenant was allowed ---Validity--­Judgments and decrees were passed after reading the entire evidence on record---Both the Courts below had neither acted with material irregularity in exercise of their jurisdiction nor had acted without authority---High Court itself compared the admitted signatures of the landlord with those on the agreement to sell and found that there was a difference between the two---High Court declined to interfere with the concurrent findings of fact by the Courts was dismissed in circumstances.

Manzoor Ahmed v. Messrs Facto (Pakistan) Ltd. And others .1996 MLD 265; Dr. Arslan Razaq v. Ali Hussain PLD 1973 Lah. 97; Haji Jumma Khan v, Haji Zarin Khan PLD 1999 SC 1101; Met, Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 897 and Iqbal and 6 others v. Met. Rabia Bibi and another PLD 1991 SC 243 ref.

Mian Inamul Haq for Petitioners.

Mian Zahoor Akhtar for Respondents.

Date of hearing: 18th July, 2001.

2002 C L C 998

[Lahore]

Before Mansoor Ahmad, J

SUBA and 20 others---Petitioners

versus

CIVIL JUDGE, 1ST CLASS CHINIOT, DISTRICT JHANG and 4 others---Respondents

Writ petition No.3892 of 1994, heard on 5th October, 2001.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction ---Scope---Interference--­Conditions---Mere conclusion in law or facts-would not furnish ground for interference to High Court in Constitutional jurisdiction---Grounds for such interference must be the conclusion in law or facts shaking up the very foundation of jurisdiction; jurisdictional defects resulting in assumption of jurisdiction not vested; failure to exercise jurisdiction so vested; exercise of jurisdiction in breach of law or mandatory part of procedure.

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

----S. 12(2) read with S.115---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Ex parte decree obtained by fraud and misrepresentation---Trial Court after recording evidence, dismissed application under S.12(2), C.P.C. which order was upheld by revisional Court---Validity---Report on initial summons was that address of petitioners was not correct---Summons were again issued on old address, but process-server reported that petitioners had refused .to accept service---Both power of attorney of Advocate and written statement on behalf of several petitioners were filed in Court on the same date, but thereafter their counsel did not seriously oppose the passing of decree---­Report of Finger Print Expert stated that majority of thumb-impressions on such written statement and power of attorney were not clear for comparison---Statement of one of the petitioners, which remained unchallenged during his cross-examination, was to the effect that they were not served; some of them were minors and were not living at the address given in the plaint; and they did not appoint anybody as their counsel---Minority of some petitioners at relevant time was admitted by one of the respondents while appearing as witness---Decree under challenge was not passed on merits---Courts below had not considered the entire evidence on record and the summons, from which it was proved that service of petitioners had been effected---High Court accepted application under S.12(2), C.P.C. filed by petitioners and set aside impugned judgments and decrees passed by Courts below with directions that suit would be deemed to be pending and would be decided on merits after proper service of petitioners/defendants.

Muhammad Aslam Riaz for Petitioners.

Muhammad Hussain Awan for Respondents.

Date of hearing: 5th October, 2001.

2002 C L C 1003

[Lahore]

Before Ch. Ijaz Ahmad, J

SERVICE SALES CORPORATION (PRIVATE) LIMITED---Petitioner

versus

AAMIR ALI CHISHTI---Respondent

Writ Petition No.7850 of 2001, decided on 29th October, 2001.

(a) Constitution of Pakistan (1973)---

----Art. 199(1)---Constitutional petition---Adequate alternate remedy--­Scope---Where it is open to an aggrieved person to move any other Forum or Tribunal for his remedy in the manner prescribed in statute, High Court cannot by entertaining petition under Art.199(1) of the Constitution permit machinery provided in statute to be bypassed---High Court would exercise its discretion in granting or refusing relief to the petitioner if it is satisfied that aggrieved party have alternate remedy elsewhere---Relief under Art. 199 of the Constitution is not to be provided where alternate remedy exists unless there are exceptional reasons warranting exercise of such extraordinary power.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Disputed question of fact--­Petitioner was convicted and sentenced on his confessional statement, whereas the statement was denied by the petitioner---Effect---Such confessional statement was disputed question of fact and High Court had no jurisdiction to resolve such question in Constitutional jurisdiction.

Muhammad Younas Khan's case 1993 SCMR 618 ref.

(c) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Alternate remedy---Petitioner was convicted by Trial Court on the basis of his confessional statement--­Instead of assailing the conviction before proper forum, the petitioner preferred Constitutional petition---Validity---Where petitioner had alternate remedy, Constitutional petition was not maintainable--High Court advised the petitioner to avail the alternate remedy under law--­Constitutional petition was disposed of accordingly.

Nazar Khan v. The State 1991 PCr.LJ 1709; Rahim alias Rehmak v. The State 1999 PCr.LJ 1068 Muhammad Rashid's case 2000 MLD 1830; Riffat Askari v. The State pLD 1997 Lah. 285 and Pir Sabir Shah v. Shah Muhammad Khan PLD 1995 SC 66 ref.

Muhammad Shah Gul for Petitioner.

Mian Muzaffar Hussain for Respondent.

2002 C L C 1006

[Lahore]

Before Muhammad Sair Ali, J

MUNICIPAL COMMITTEE, JHANG MAGHIANA through Administrator---Petitioner

Sh. MUHAMMAD MEHTAB---Respondent

Civil Revision No. 90 of 1997, heard on 26th September, 2001.

Contract Act (IX of 1872)---

----S. 11---Civil Procedure Code (V of 1908), S.115---Contract by minor---Liability to return benefit received under such contract---Suit for recovery of amount outstanding against defendant on account of contract secured by him for realizing tax from Rehriwalas at Bus Stand--­Defendants' plea was that at relevant time, he being minor was suffering from legal incapacity to enter into a contract, and in absence of a valid contract, no recovery could be made from him---Trial Court decreed the suit but Appellate Court set aside the decree---Contention was that despite minority, defendant was bound to return benefit attained by him on the basis of contract secured through fraudulent representation and concealment of his minority---Validity---Contract granted by plaintiff to defendant was void ab initio, as at that time, defendant had been suffering from incapacity to enter into contract---No rights and liabilities could be attached 'to or arise out of a void contract---Minor could not be burdened with liability of a void contract, thus Court had validly dismissed the plaintiff's suit---Had it been a suit brought by minor to get a contract avoided, then Court could validly refuse relief to minor till realization of benefit received by minor from his contracting party---Revision petition was dismissed in circumstances.

The Chairman, District Scrutiny Committee and another v. Sharif Ahmad Hashmi PLD 1976 SC 258; Firm Bhola Ram Harbans Lal v. Bhagat Ram and others AIR 1927 Lah. 24n Lily nhar v. Piarey Lal AIR 1921 All. 326 ref.

(b) Contract Act (IX of 1872)---

----S. 11---Contract by minor---Effect---Contract with a mincer is void ab initio and no rights and liabilities arise out of such contract---Minor cannot be burdened with liability of a void contract---Court, in a suit brought by minor to get such contract avoided, can validly refuse relief to him till realization of benefits received by minor from his contracting party.

Irshad Ahmad Qureshi for Petitioner.

Abdul Ghafoor Ramay for Respondent.

Date of hearing: 26th September, 2001,

2002 C L C 1010

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AMIN SABIR SHAH alias PIR SABIR PIA---Petitioner

versus

FEHMEEDA KHANAM and 4 others---Respondents

Writ Petition No. 17228 of 2000, decided on 22nd October, 2001.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---New point---Point not raised in the proceedings at lower forums could not be allowed to be raised for the first time in Constitutional jurisdiction.

(b) West Pakistan Family Courts Act .(XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Suit for maintenance of wife and sons---Decree passed by Family Court was affirmed by Appellate Court ---Validity--­Both the Courts below after considering evidence on record had concurrently found that petitioner was liable to make payment to both his children, who were still minors and also to make payment of six months to his divorced wife---Finding of fact could' not be interfered with in Constitutional jurisdiction unless shown to be unwarranted or based on misreading of evidence---Impugned judgments were based on cogent reasons and evidence on record---No illegality or misreading or non-­reading of evidence was pointed out by petitioner---Constitutional petition was dismissed in circumstances.

PLD 1989 Lah. 69; PLD 1993 Lah. 549; Shagufta Bani v. Musarrat Hanif and others 1982 CLC 1821; Naeem Gul's case 1989 ALD 93; Mst. Kausar Parveen v. Ghulam Rasool PLD 1981 Lah. 511, Muhammad Tufail v. Additional District Judge 1985 MLD 1275

(c) West Pakistan Family Courts Act (XXXV off 1964)---

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Islamic, Law---Constitutional petition---Suit for maintenance of sons---Decree passed by Family Court was affirmed by Appellate Court---Contention was that under Islamic Law, age of puberty was the age of majority, but Courts below had not fixed the date uptil which petitioner (father) had to make payment to his minor sons---Validity---Petitioner had raised such ground neither in written statement nor in appeal nor any issue was framed in this respect---Petitioner had moved number of applications, but not a single application had been moved in this regard---Such ground was taken for the first time in Constitutional jurisdiction, which could not be allowed.

Irfan Qureshi for Petitioner.

Ch. M. Saleem and M.A. Aziz for Respondents Nos. 1 to 3.

2002 C L C 1015

[Lahore]

Before Mansoor Ahmad, J, LAHORE DEVELOPMENT AUTHORITY through Director-General---Petitioner

versus

Messrs NAZIR & CO. (PVT.) LTD. ---Respondent

Civil Revision No.902 of 2000, heard on 27th September, 2001.

(a) Arbitration Act (X of 1940)---

----S. 5 read with S.33---Application under S.5 of Arbitration Act, 1940, seeking revocation of authority of arbitrator---Trial Court dismissed such application being premature---Validity---Revocation of subsisting authority of an appointed arbitrator could' be sought only under S.5 of the Arbitration Act---Several circumstances and reasons for seeking such revocation might exist---Trial Court was bound to decide application under S.5 of the Act on its own merits, but equating such application wrongly with that-of an objection under S.33 of the Act, Court had failed to exercise jurisdiction vested in it---High Court set aside the impugned order and remanded the case to Trial Court for its fresh decision within the parameter of S.5 of Arbitration Act, 1940.

(b) Words and phrases--­-

----"Revocation"---Means withdrawal, recall, annulment or repudiation.

Manzoor Hussain Basra and Ch. M. Rashid for Petitioner.

Aamer Sana for Respondent.

Date of hearing: 27th September, 2001.

2002 C L C 1017

[Lahore]

Before Ch. Ijaz Ahmad, J

KHALID BASHIR BHATTI, SECRETARY­ GENERAL, PAKISTAN AMATEUR BASKETBALL FEDERATION---Petitioner

versus

PAKISTAN SPORTS BOARD through Director-General, Pakistan Sports Board Complex, Aabpara, Islamabad and 2 others---Respondents

Writ Petition No. 12324 of 2001, decided on 25th October, 2001.

(a) Constitution of Pakistan (1973)---

Art. 199---Constitutional jurisdiction---Scope---Acquiescence---Party having acquiesced in erroneous order or irregular proceedings would not be entitled to question the same subsequently by invoking a high prerogative jurisdiction.

Begum Zainab Tiwana's case PLD 1967 Lah. 977; Riyasat Ali Azad's case PLD 1965 Lah. 56 and Malik Muhammad Din's case PLD 1968 Lah. 544 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---Gross negligence--­Constitutional jurisdiction being equitable jurisdiction could not be exercised in favour of a person, who had come to the Court with gross negligence.

Mohsin Khan's case 1969 SCMR 306 and Suleman's case 1970 SCMR 574 ref.

(c) Pakistan Sports Board Rulis, 1962---

----R. 4(xi)---Sports (Development and Control) Ordinance (XVI of 1962), S.5--Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Ad hoc Committee & Election held by said Committee---Validity---Impugned notification of appointment of Ad hoc Committee was not challenged till holding of election by the same--­Petitioner had already participated in the election conducted by such Committee---High Court dismissed Constitutional petition on the ground of waiver and estoppel in circumstances.

Abdul Sattar Yousuf's case 1984 CLC 194 and Suleman:'s case 1970 SCMR 574 ref.

Muhammad Saeed Ansari for Petitioner.

Sher Zaman, Deputy Attorney-General for Pakistan for Respondent No. 1.

Muhammad Nawaz Kasuri for Respondent No.2.

Respondent No.3 in Person.

2002 C L C 1022

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL WAHID --- Plaintiff

versus

Haji NOOR AHMAD---Respondent

Regular Second Appeal No.41 of 1991, heard on 16th October, 2001.

(a) Limitation Act (IX of 1908)---

----S. 14---Limitation---Computation---Exclusion of time---In computing period of limitation prescribed for any suit, time during which plaintiff had been prosecuting civil proceedings with due diligence, whether in Court of first instance or in Court of appeal against defendant, would be excluded, where such proceeding was founded upon same cause of action and was prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature was unable to entertain it--­Time to be so excluded would be the entire period of pendency of suit including the date on which it was instituted and the day on which proceedings therein ended.

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

----S. 12---Registration Act (XVI of 1908), Ss.36, 73 & 77---Limitation Act (IX of 1908), S.14 & Art.113---Suit for specific performance of agreement to sell---Entitlement to benefit of S.14 of Limitation Act, 1908---Plaintiff's application, dated 9-9-1974 seeking registration of sale­deed under S.36 of Registration Act, 1908, was dismissed by Sub­Registrar on 2-11-1974, application filed before Registrar under S.73 of Registration Act, 1908 was dismissed on 16-6-1979 and suit under S.77 of Registration Act, 1908 was dismissed on 23-10-1982, while his appeal' was dismissed on 18-3-1987---Plaintiff - filed suit for specific performance of agreement to sell on 16-12-1982 alongwith application under S.14 of Limitation Act, 1908---Trial Court decreed the suit, but First Appellate Court dismissed the same being time-barred--­Validity---Performance of agreement by 30-6-1974 had been admitted--­Appellant in spite of having received defendant's notice dated 17-8-1975 informing him that because of non-performance, agreement stood cancelled w.e.f. 30-6-1974 and earnest money stood forfeited, still persisted in continuing proceedings under Registration Act, 1908---Plaintiff, according to Art. 113 of Limitation Act, 1908 had to file the suit within 3 years either of 30-6-1974 or 1i-8-1975---Proceedings pending before Sub-Registrar and Registrar were neither civil proceedings nor were they pending in a Court of first instance or in a Court of appeal within the meanings of S.14 ofl1 Limitation Act, 1908---Terms of cause of action and civil proceedings used in S.14 of Limitation Act, 1908, were relateable to civil suit or a civil appeal---"Court of first instance" and "Court of appeal" were such terms to be used in C.P.C., with reference to suits and appeals filed thereunder---Neither applications before Sub-Registrar and Registrar nor suit under. S.77 of Registration Act, 1908. could be said to be "proceedings" entitling appellant to exclusion of time spent in their prosecution nor such proceedings were dismissed for want of jurisdiction, nor it could be said that appellant had conducted such proceedings in good faith or with due diligence---Impugned judgment and decree being not suffering from any error of law, High Court dismissed the second appeal.

Khurshid Ahmad Chaudhry for Appellant.

Riayasat Ali Chaudhry for Respondent.

Date of hearing: 16th October, 2001.

2002 C L C 1027

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD HUSSAIN and another---Appellants

versus

FEDERAL GOVERNMENT through Ministry of Culture and Sports, Tourism, Islamabad and 10 others---Respondents

Intra-Court Appeal No.822 of 2001, decided on 17th October, 2001.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Claim not based on any legal right---Maintainability---Motorcycle rally was not organized by the Administration---Petitioner's claim was not based on any legal right, but it was a dispute between two brothers, which could not be resolved in Constitutional jurisdiction---High Court was justified to dismiss Constitutional petition.

(b) Jurisdiction---

---- Legal right and moral right---Scope of enforceability through Court--­Court can enforce only legal right and not simply a moral right, however, strong may be the urge to enforce the same in view of moral ascendancy.

(c) Words and phrases---

"Legal right", means a right, which is created, recognised and enforceable by law.

Malik Saeed Hassan for Appellant.

2002 C L C 1029

[Lahore]

Before Mansoor Ahmad, J

PROVINCE OF PUNJAB through Collector, Faisalabad and 2 others---Petitioners

versus

NISHAT TEXTILE MILLS LIMITED SHEIKHUPURA ROAD, FAISALABAD ---Respondent

Civil Revision Petition eNo.89-D of 1991, heard on 6th November,2001.

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

----O. VIII, R.6---Counter-claim in written statement---Nature of set-off-­-Provisions for setting up a counterclaim are not available in C.P.C.--­Nature of set-off has been defined in O.VIII, R.6, C.P.C. which is provided as weapon of defence for balancing the claim of plaintiff and that too in a money suit.

Syed Niamat Ali and others v. Dewan Jay Ramdaas PLD 1983 SC 5 ref.

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

----O. VIII, R.6---Doctrine of equitable set-off---Claim of counter­ declaratory decree under the garb of counterclaim is not covered by the doctrine of equitable set-off, which permits the defendant on equitable consideration to raise a plea of set-off even in respect of unascertained sum of money, but the basic principle remains that it has to be a claim of money to balance the claim of plaintiff.

Syed Niamat Ali and others v. Dewan Jay Ramdaas PLD 1983 SC 5 ref.

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

----O. VIII, R.6---Plea of set-off ---Counter-declaratory decree--­-Appellate Court, while dismissing the suit, awarded a decree in favour of defendant on the basis of his counterclaim made in. written statement--­-Validity---Claim of set-off under O.VIII, R.6, C.P.C. and under doctrine of equitable set-off was available to defendant, but his claim for a counter-declaratory decree was not tenable in law ---Counter-declaratory decree did not fall within the ambit of set-off, therefore, it could only be a counterclaim---Assuming that counter-declaratory decree could be awarded in favour of defendant, then plaintiffs were acquired to be put to notice and a written statement in the form of replication by plaintiffs to the claim of defendant was required to be obtained by Trial Court--­ Failure to call for a replication and failure to provide proper opportunity on such score, had caused prejudice to plaintiff, which was a material irregularity---High Court accepted the revision petition, set aside the judgments and decrees of Courts below and remanded the case to Trial Court for its decision afresh after allowing the plaintiff an opportunity to file replication as a written statement to counterclaim of defendant and allowing the parties to produce additional evidence.

Mhlik Khizar Hayat Khan, Asstt. A.-G. for Petitioners.

Malik Allah Yar and Aurangzaib for Respondent.

Date of hearing: 6th November, 2001.

2002 C L C 1033

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD RASHEED---Petitioner

versus

DISTRICT COORDINATOR OFFICER and 2 others---Respondents

Writ Petition No. 18802 of 2001, decided on 18th October, 2001.

(a) Constitution of Pakistan (1973)---

----Art. 199(1)---"Person"---Definition---Constitutional petition by an employee of the club would not be maintainable, because club did not fall within the definition of a "person" given in Art.199 of Constitution.

Muhammad Ibrahim Siddiqui v. Thal Industries Corporation PLD 1974 SC 198 and Abdul Rashid Qureshi v. Industrial Court of Pakistan, Lahore PLD 1967 SC 367 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Alternative remedy---Constitutional petition would not be maintainable, where alternative remedy to file civil suit before the competent Court was available to the petitioner for redressal of his grievance.

Ghulam Farid Sanotra for Petitioner.

2002 C L C 1035

[Lahore]

Before Ijaz Ahmad Chaudhry. J

SHAHID KHAN---Petitioner

versus

SENIOR CIVIL JUDGE/RETURNING OFFICER FOR THE ELECTION OF SPECIAL SEATS, TEHSIL SHAKARGARH and 9 others ---Respondents

Writ Petition No. 14923 of 2001, decided on 15t October, 2001.

(a) Punjab Local Government Elections Ordinance (V of 2000)---

----S. 2(10)---Punjab Local Government Elections Rules, 2000, R.70--­Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Words "directly depends upon it" appearing in S.2(10) of the Punjab Local Government Elections Ordinance, 2000---Significance and effect--­Advocate contesting election for local bodies against seat reserved for peasants---Advocate contended that he was covered within the definition of peasant as mentioned in S.2(10) of the Punjab Local Government Elections Ordinance, 2000---Validity---Words used in the law being dependant directly upon the income of the land, it required recording of evidence whether the Advocate was dependant upon the income of land or had the other sources also---Such question could only be resolved before Election Tribunal---Time fixed for election petition had already expired, High Court remitted the Constitutional petition to the Election Tribunal and directed the Tribunal to treat the same as election petition---High Court further directed the Tribunal to decide the petition after affording opportunity to the contesting parties---Constitutional petition was allowed accordingly.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Election dispute---Factual controversy ---Assailing election after 'notification---Jurisdiction of High Court---Scope---Constitutional petition can only be entertained when there is no need for resolving of any factual controversies through recording of evidence.

(c) Punjab Local Government Elections Rules, 2000---

----R. 70---Limitation Act (IX of 1908), S.14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Proceeding bona fide in Court without justification---Condonation of delay---Petitioner had challenged election through Constitutional petition in wrong forum but within prescribed time and the same remained pending there for considerable period, notices were issued to the respondents and, hearing was also given---Effect---Where time for filing of election petition had already elapsed, it would be equitable, and just if the Constitutional petition would be remitted to Election Tribunal to treat the same as election petition---Delay was condoned and the petition was remitted to Election Tribunal in circumstances.

Government of the Punjab v. Hudabia Textile Mills 2001 SCMR 209 rel.

Pir S.A. Rashid for Petitioner.

Ghulam Farid Sanotra for Respondents Nos.3 and 4.

Taqi Ahmad Khan: Amicus curiae.

Muhammad Jahangir Wahlah, A.A.-G.

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2002 C L C 1049

[Lahore]

Ch. Ijaz Ahmad, J

MUHAMMAD SADIQ---Petitioner

versus

SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINISTRY OF RELIGIOUS AFFAIRS ZAKAT AND USHR AND MINORITY AFFAIRS, ISLAMABAD and 4 others---Respondents

Writ Petition No.7556 of 1999, heard on 14th November, 2001.

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 17---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Public property---Disposal of---Government property must be allotted to a citizen in accordance with law---In case public functionaries allot land in derogation of law to any citizen, then heavy duty lies upon the Court to rectify mischief:

Pervaiz Oliver and others v. St. Gabrial School PLD 1999 SC 26 rel.

(b) Administration of justice---

---- Courts have to protect the interest of taxpayers as well as public exchequers notwithstanding follies and illogical and some time even casual attitude of the custodian of the public exchequer.

Province of Punjab and 30 others v. Muhammad. Dawood Khan Tariq 1993 SCMR 508 rel.

Javed Iqbal Abbasi & Company v. Province of Punjab 1996 SCMR 1433 ref.

(c) Administration of justice---

---- National interest must take precedent over private interest and individual rights.

Haji Saif Ullah's case PLD 1989 SC 166 rel.

(d) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Public property disposal of---Misreading and non-reading of record---Allotment of disputed property was cancelled by Chairman, Evacuee Trust Property Board, after providing proper opportunity of hearing and recording of evidence---Federal Government in exercise of revisional jurisdiction set aside the order passed by the Chairman--­Validity---Where order passed-by the Chairman was valid, based on reason and the Federal Government did not give any cogent reason to reverse the findings of the Chairman, order passed by the Federal Government was not sustainable in the eyes of law---Such order passed by the Federal Government being the result of misreading and non­reading of record the same was without lawful authority---High Court set aside the order passed by the Federal Government and restored that of the Chairman.

Muhammad Afzal and others v, Government of Pakistan and others 1987 SCMR 2078; Muhammad Akhtar v. Abdul Aziz and 2 others PLD 1996 Lah. 232 and S.A. Matin and another v. Province of Sindh through Secretary, Department of Excise, Taxation, Housing, Town Planning and Local Government and 9 others PLD 1976 Kar. 36 ref.

(e) Constitution of Pakistan (1973)---

----Art. 4---Protection of law---Scope---Public functionaries were duty bound to pass orders in accordance with law as envisaged by Art.4 of the Constitution.

Utility Corporation's case PLD 1987 SC 447 rel.

(f) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 17---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Allotment order of public property was assailed in High Court by tenant of the property---Objection was raised to the maintainability of the petition---Validity---Where property of Government was allotted in derogation of law and the orders of the Authorities were set aside by the . Federal Government without any justification, Constitutional petition filed by the tenant would be maintainable.

Atdeshir Cowasjee and 10 others v. Karachi Building Control Authority (K.M.C.l, Karachi 1999 SCMR 2883; Messrs Pioneer Cemem Limited through Kanwar Iqbal Talib, duly authorized Director v. Province of the Punjab 2000 CLC 54 -and Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223 ref.

(g) General Clauses Act (X of 1897)---

----S. 24-A---Decision of matters by public functionaries ---Principles--­Public functionaries are duty bound to decide the controversy with reason as provided by S.24-A, General Clauses Act, 1897---Where the order does not contain any reason, such order is not sustainable in the eyes of law.

Messrs Airport Support Services v. The Airport Manager, Quid­e-Azam International Airport, Karachi and others 1998 SCMR 2268 ref.

(h) Constitution of Pakistan (1973)---

Art. 189---Dictum laid down by Supreme Court---Violation of--­Where order passed by Authorities is not in accordance with the dictum laid down by Supreme Court, such order is in violation of mandate of the Constitution.

Taqi Ahmed Khan for Petitioner.

N.A. Butt for Respondent No.2.

Date of hearing: 14th November, 2001.

2002 C L C 1057

[Lahore]

Before Maulvi Anwarul Haq, J

MITCHELL'S FRUIT FARMS (PVT.) LTD. ---Petitioner

versus

ADDITIONAL SECRETARY, GOVERNMENT OF PAKISTAN, (C.B.R.) MINISTRY OF FINANCE KARACHI and 3 others---Respondents

Writ Petitions Nos.5662 and 5663 of 1990, heard on 15th November, 2001.

(a) Administration of justice---

---- Authorities appointed to interpret statutory provisions governing a matter, are required to read such provisions properly while deciding matters concerning the application of the same.

(b) Central Excises Act (I of 1944)---

----S. 3 & First Sehed. Item No.02-02-B(a) & (b) read with Exemption B(a)---West Pakistan Pure Food Rules, 1965, R.85---Constitution of Pakistan (1973), Art.199---Constitutional petition---Excise Duty---Levy of---Show-cause notice was issued to petitioners alleging evasion of Excise Duty on Tinned Juices (Grape juices and Orange juices) by paying Duty @ 0.5 % , which they were required to pay @ 5 % of the retail price---Reply of petitioners was not accepted by authorities--­Appeal and revisions filed against such order were dismissed--­Petitioners' contention was that products in question were "Beverages made from Juices" in the manner prescribed under West Pakistan Pure Food Rules, 1965, as such were liable to duty of Paisa 40 per litre--­Validity---Combined effect of Item No.02-O1-B(b) of the Central Excises Act, 1944 and R.85 of West Pakistan Pure Food Rules, 1965, was that beverages prepared from fruit juices in manner prescribed in R.85 would fall within ambit of Para.B(a) of the Act and if not, then the same would fall in Para.B(b) thereof---Products in question were got analysed from Laboratories, which had confirmed the same to the standards prescribed in R.85 of West Pakistan Pure Food Rules, 1965---Authorities had proceeded to act without lawful authority completely ignoring such statutory provisions and followed some directions of Central Board of Revenue, which was against the express letter of the statute---Appellate and revisional Authorities had completely ignored such provisions of law---Constitutional petition was accepted and impugned orders were set aside declaring that products in question were covered by Para.B(a) of Exemption to Item No.02-01B(b) of Schedule of Central Excises Act, 1944 and the Duty had been correctly paid by respondent at the rate prescribed therein.

Ali Sibtain Fazli for Petitioner.

A. Karim Malik for Respondents.

Date of hearing: 15th November, 2001.

2002 C L C 1061

[Lahore]

Before Maulvi Anwarul Haq, J

TARIQ IQBAL---Petitioner

versus

GOVERNMENT OF PAKISTAN, COLLECTORATE OF CUSTOMS through Collector Customs, Lahore and 7 others---Respondents

Writ Petition No.5323 of 2001, heard on 13th November, 2001.

(a) Customs Act (IV of 1969)---

----S. 169---Disposal of confiscated goods---Where Court was Of the opinion that the thing confiscated was not liable to confiscation, the authorities were liable to hand over the same to the owner.

(b) Customs Act (IV of 1969)---

----Ss. 169 & 201---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Sale of seized currency---Foreign currency in the shape of U.S. Dollars was seized from the petitioner by the Authorities--­Matter was finally decided by Supreme Court in favour of the petitioner and the Authorities were directed to hand over the currency seized from the petitioner---Authorities instead of returning the amount in U.S Dollars, returned the amount equivalent in local currency and that too at the exchange rate prevailing at the time of seizure---Contention of the Authorities was that the foreign currency was sold seven years after its confiscation---Validity---Authorities were bound to take absolute care in the matter of disposal of currency in terms of S.169 read with 5.201 of the Customs Act, 1969---Where the Authorities had failed to do so without any just cause, the Authorities were bound to hand over the amount of foreign currency to the petitioner or pay its equivalent in local currency as per prevalent exchange rate on the date when the amount was actually tendered to the petitioner---Officials concerned, in the present case, had proceeded with negligence and in dereliction of their duty, thus High Court directed the Authorities to initiate departmental inquiry and fix individual responsibility who would be proceeded against under the Efficiency and Discipline Rules---High Court further directed the Authorities to recover the loss suffered by the department from the officials concerned---Sale of the foreign currency seized from the petitioner being without lawful Authority, Constitutional petition was allowed accordingly.

Kh. Haris Ahmad and Syed Hamid Ali Shah for Petitioner.

Sh. Izharul Haq for Respondents.

Date of hearing: 13th November, 2001.

2002 C L C 1066

[Lahore]

Before Naseem Sikandar and Jawwad S. Khawaja, JJ

ABU BAKAR SIDDIQUE---Appellant

versus

COLLECTOR OF CUSTOMS and others---Respondents

Custom Appeal No.26 of 1997, heard on 6th December, 2000.

(a) Customs Act (IV of 1969)---

----Ss. 194-A & 196---Appeal before High Court---Question of law--­Scope---Question can be said to have arisen out of the order of the Tribunal only if the same was placed before the Tribunal and was ruled upon by them---Where the issues had not been raised before the Tribunal and in absence of any such evidence to the contrary even if the points were taken as grounds of appeal, the same would be presumed that the points were not as such argued or pressed---Issues not raised before the Tribunal could not be raised before High Court as question of law.

(b) Customs Act (IV of 1969)---

----S. 181---Option to pay fine in lieu of confiscated goods---Jurisdiction of Customs Authorities---Scope---Allowing of such option under S.181 the Customs Act, 1969, is discretionary with the revenue and the exercise of discretion necessarily depends upon the facts of every case. Such option cannot be made available in every case nor can be claimed a matter of right.

(c) Foreign Exchange Regulation Act (VII of 1947)---

----S. 8---Imports and Exports (Control) Act (XXXIX of 1950), S.3(1)---Customs Act (IV of 1969), Ss.2(s), 16, 139 & 181---Declaration passenger---Failure by passenger to declare gold recovered from hi$ baggage---Authorities confiscated the gold so recovered from the baggage and no option under S.181 of the Customs Act, 1969, to pay the fine was given to the passenger---Validity---Exercise of discretion to give option depended upon facts of every case and the same could not be claimed as 0 matter of right---High Court declined to interfere with the order passed by the Authorities---Appeal was dismissed in circumstances.

Mian Abdul Ghaffar for Appellant.

Khan Muhammad Virk for Respondent.

Date of hearing: 6th December, 2000;

2002 C L C 1070

[Lahore]

Before M. Jayed Buttar, J

MUHAMMAD ISHAQ and another---Petitioners

versus

DEPUTY SETTLEMENT COMMISSIONER, RAWALPINDI and 2 others---Respondents

Writ Petition No. 1220/R of 1978, decided on 4th October, 2001.

Displaced Person (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----Ss. 4, 20 & 22---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)---Settlement Scheme for the Management and Disposal of Available Urban Properties, 1977, Para.31---Settlement Scheme No.VIII, para.2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Settlement Commissioner transferred property in terms of compromise to petitioner and respondent---Deputy Settlement Commissioner vide order, dated 30-7-1976 cancelled transfer in favour of petitioner due to non-payment of transfer price---Respondent, on resumption of property from petitioner, filed Form under Settlement Scheme for the Management and Disposal of Available Urban Properties, 1977---Petitioner on coming to know about passing of order, dated 30-7-1976, filed application for its recalling, which was accepted by Deputy Settlement Commissioner vide order, dated 26-6-1978, who not only recalled resumption order, dated 30-7-1976, but in his capacity as Deputy Administrator (Residual Properties) vide separate order of even dated i.e. 26-6-1978 rejected Form of the respondent---Respondent filed revision petition against rejection of his Form before Administrator (Residual Properties) under para. 31 of Scheme for the Management and Disposal of Available Urban Properties, 1977, but he did not challenge order, dated 26-6-1978, whereby resumption order, dated 30-7-1976 was recalled---Administrator (Residual Properties) accepted revision petition and set aside both the orders passed on 26-6-1978 by same officer in his capacity of Deputy Settlement Commissioner and. Deputy Administrator (Residual Properties), and remanded the case for disposal of Form filed by respondent---Validity---Resumption order, dated 30-7-1976 having been passed at the back of petitioner was illegal and void ab initio being violative of principle of natural justice and provisions of para.2 of Settlement Scheme No.VIII---Subsequent order, dated 26-6-1978 passed by Deputy Settlement Commissioner recalling resumption order had attained finality in absence of challenge thereto before higher forum including High Court---Revision against such order was not even competent after repeal of Settlement Laws---Property was no more available after recall of resumption order, thus Form of respondent had rightly been rejected and his revision petition filed against rejection of his Form had no merits---Scope of such revision petition was limited to the extent of validity of order, dated 26-6-1978 passed by Deputy Administrator (Residual Properties) and while hearing such petition, Administrator (Residual Properties) could neither go into validity of order, dated 26-6-1978 passed by Deputy Settlement Commissioner nor had jurisdiction to sit in judgment over an order passed by Deputy Settlement Commissioner---Administrator (Residual Properties) through impugned order had restored an illegal and void ab initio order passed by Deputy Settlement Commissioner on 30-7-1976 which was not permissible under the law---Constitutional petition was accepted and impugned order passed by Administrator ( Residual Properties) was set aside.

Raza Muhammad v. Settlement Commissioner and others 1985 SCMR 1267; Ghazi Khan v. Republic of Pakistan through the Secretary to Government of Pakistan Ministry of Refugee and Rehabilitation, Rawalpindi and others PLD 1973 Kar. 624; Subedar Major Aziz Ahmad v. Mst. Sardar Begum and 3 others 1971 SCMR 730; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Mst. Amina Begum v. Deputy Settlement Commissioner, Circle I, Lahore and 3 others PLD 1980 Lah. 571; Muhammad Hidayatullah v. The Settlement and Rehabilitation Commissioner, Sargodha Division, Sargodha and 3 others PLD 1971 Lah. 931; Muhammad Ali v. Member, Board of Revenue and 7 others 198.1 SCMR 852; Sughran Begum v. Nawab Din and others 1986 CLC 819; Muhammad Shafi v. Mauj Din Khan and 3 others PLD 1976 Lah. 17; Ch. Sardar Ali v. Ch. Ali Muhammad and another PLD 1970 Lah. 647; Muhammad Siddique v. Settlement and Rehabilitation Commissioner and other PLJ 1975 Lah. 294; Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore and 2 others PLD 1971 SC 61; Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and 2 others PLD 1964 SC 829; Mst. Chanda Begum v. Settlement Commissioner, and another PLD 1977 SC 503; Muhammad Musa v. Settlement and Rehabilitation Commissioner and 2 others 1974 SCMR 352; Sher Muhammad and others v. Settlement Commissioner and others 1988 SCMR 576; Israr Ahmad and others v. Member, Board of Revenue/Chief Settlement Commissioner, Lahore and another 1997 SCMR 1559; Abdul Hamid v. Settlement Commissioner and others Writ Petition No. 118/R of 1979 and Headmaster Muslim High School No. 1, Rawalpindi and another v. Asghari Khanam and 2 others 1984 SCMR 332 ref.

A.R. Shaukat for Petitioners.

Khan Muhammad Younis Khan for Respondents

Date of hearing: 4th October, 2001.

2002 C L C 1082

[Lahore]

Before Shaikh Abdur Razzaq, J

FAZAL DIN---Petitioner

Versus

Mian LIAQUAT ALI and 4 others---Respondents

Civil Revision No. 1041 of 1997, heard on 25th October, 2001.

Punjab Tenancy Act (XVI of 1887)---

---Ss. 50 & 77, Second Group (g)---Specific Relief Act (I of 1877), S.9---Civil Procedure Code (V of 1908), S.115 & O.VII, R.10--Suit for possession---Plaintiffs' claim was that defendants, without having awful authority, had dispossessed him from suit-land, whereas he could only be dispossessed by owner and that too in accordance with law---Civil Court returned the plaint--Validity---Assuming that plaintiff had been dispossessed by defendants without adopting due process of law and of even being owner/landlord of plaintiff, even then a procedure for storation of such possession had been provided under Punjab Tenancy ct, 1887---Relief against wrongful dispossession or ejectment could be ought by a tenant by filing suit as required under S.50 of Punjab Tenancy Act, 1887 in a Revenue Court as contemplated by S.77, Group­II, sub-clause (g)---No other Court could take cognizance of any such dispute or matter with respect to which any suit might be instituted under such section---Impugned order did not suffer from any infirmity.

Murad Murad v. Mgt. Moondan through her legal heirs and another 1988 MLD 1397 and Karam Khan v. Azizullah Khan and others PLD 1951 Pesh. 27 ref.

Ch. Muhammad Rasheed for Petitioner.

Hamid Ali Mirza for Respondents.

Date of hearing: 25th October; 2001.

2002 C L C 1085

[Lahore]

Before Amir Alam Khan and Muhammad Sair Ali, JJ

Mst. NAJMA YASMIN and another---Appellants

versus

Mst. FIRDOUS KHALID and 2 others---Respondents

Regular First Appeal No.71 of 1997, heard on 1st November, 2001.

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

----O. VIII, Rr.l & 10---Written statement,-non-filing of---Closing of defence---Case was fixed for filing of written statement on 18-9-1996, and right to file the same was closed under O.VIII, R.10, C.P.C. on 16-10-1996, i.e. within a period of 28 days---Validity---Trial Court had neither specifically required a written statement nor allowed time of 30 days to the defendants to submit their written statement---High Court disapproved the restricting and reducing of the period of 30 days to a period of 28 days by the Trial Court as the same had deprived the defendants of (heir right to file written statement---Order passed by the Trial Court under O.VIII C.P.C. was set aside in circumstances.

The Secretary Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad Khan 1991 SCMR 2527; Mst. Hakumat Bibi v. Imam Din and others PLD 1987 SC 22 and Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 ref.

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

----O. VIII, R.10 & O.IX, R.13---Limitation Act (IX of 1908), ,Ss.5 & 14---Condonation of delay---Exclusion of time of bona fide proceedings in Court without jurisdiction ---Trial Court decreed the suit against the defendants under O.VIII, R.10, C.P.C.---Defendants, instead of filing appeal against the judgment and decree, preferred application under O. IX, R.13, C. P. C. ---Such application was summarily dismissed by the Trial Court without holding any inquiry---Plea raised by the defendants was that on the date when defence was struck off, none appeared on behalf of the defendants and they had wrongly been marked present through their counsel further that there was confusion qua the dates---Validity---Defendants pursued their case in good faith and diligently as application against order, dated 16-10-1996, was filed diligently on 17-10-1996---Where no inquiry was held by the Trial Court upon the plea raised by the defendants regarding their absence on 16-10-1996, and about confusion of the date, it could not be said with certainty that the legal course adopted by the defendants was on the basis of wrong or mistaken legal advice---High Court condoned the delay in filing of the appeal---Order passed by the trial Court was set aside and the case was remanded to Trial Court to decide the suit afresh.

Shah Muhammad v. Ghulam and another PLD 1970 SC 196; Bashir Ahmad v. Muhammad Sharif and 4 others PLD 2001 SC 228 and Ghulam Ali v. Akbar alias Akoor and another PLD 1991 SC 957 distinguished.

Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365; Sherin and 4 others v. Faza Muhammad and 4 others 1995 SCMR 584; The Traders Bank Ltd. v. Avtar Singh AIR 1988 Delhi 55; Satya Narayan Sah v. Brij Gopal Mundra AIR 1991 Pat. 60; Sheikh Abdul Hamid v. Khurshid Ahmad 1993 SCMR 1071 and Azad Hussain v. Haji Muhammad Hussain PLD 1994 SC 874 ref.

Syed Misbah-ul-Hassan Abidi and Tafazzal H, Rizvi for Appellants.

2002 C L C 1102

[Lahore]

Before Ch. Ijaz Ahmad, J

SHABBIR ANWAR ---Petitioner

Versus

Sh. TARIQ MEHMOOD and 2 others---Respondents

Civil Revision No. 101 of 2000, decided on 12th November, 2001

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

----O. XX, R.5---Judgment, pronouncement of---Failure to give finding on each issue---Effect---When the basic issues have been discussed and remaining issues are outcome of the same issues, discussion at length of such remaining issues is not required having become redundant---Where finding on certain issues is sufficient for the disposal of the case, the Appellate Court may not dilate upon other issues---No prejudice was caused to the parties in not deciding the other issues.

Gul Wali Khan v. Safdar Saleem and 10 others 1997 MLD 3075 and Muhammad Bashir v. Haji Muhammad Siddiq and others 1997 MLD 3263 ref.

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

----Arts. 73, 117, 118 & 119---Execution of document by illiterate person/Pardanashin lady---Onus to prove---Extent---Where the document is allegedly executed by illiterate person/Pardah observing lady, the beneficiaries of the document are bound to establish by highly satisfactory and strong evidence that not only the document has been executed by such illiterate person/Pardah-observing lady but also that such person had fully understood the contents of the document.

Mst. Fareed-un-Nisa's case AIR 1925 PC 205 ref.

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

----Arts. 73, 117 & 120---Execution of document---Onus to prove---Plea of being Pardanashin lady---Effect---Duty of the beneficiary of the document to establish that the document was executed by Pardanashin lady having independent legal advice at the time of execution of the document in question.

Ghtflam Ali and 2 others v. Mst..Ghulam Sarwar Naqvi PLD 1990 SC 1 and Malik Riaz Ahmad and others v. Mien Inayat Ullah 1992 SCMR 1488 ref.

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

----Arts. 117, 118, 119 & 129(g)---Execution of document by illiterate Pardanashin lady---Onus to prove---Withholding of best evidence--­Dispute was with regard to execution of sale agreement and general power of attorney by the defendant illiterate and Pardanashin lady in favour of plaintiffs---Power of attorney was revoked by the defendant/lady and was executed in favour of some other persons--­Adopted son of the defendant/lady was admitted to be present at the time when the lady put her thumb-impression on a blank paper---Plaintiff failed to produce the adopted son as witness, to prove the execution of the documents---Suit was decreed by the Trial Court, whereas the Appellate Court reversed the findings of the trial Court and dismissed the suit---Contention of the plaintiff was that-as the defendant/lady did not produce the adopted son as witness, therefore, judgment and decree passed by the Appellate Court was in violation of Art. 129(g) of Qanun-e­Shahadat, 1984---Validity---Where the plaintiff was beneficiary of the documents in question, it was his duty and obligation to bring the adopted son as witness---Plaintiff in the present case, had withheld the best evidence to resolve the controversy---Judgment and decree passed by the Appellate Court was not in violation of Art.129(g) of Qanun-e-Shahadat Order, 1984---High Court declined to interfere with the judgment and decree passed by the Appellate Court.

Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816 distinguished.

(e) Practice and procedure---

---- Each and every case has to be decided on its own peculiar circumstances and facts.

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

----S. 115---Revision---Findings on question of fact or law recorded by Court of competent jurisdiction---Interference by High Court in revisional jurisdiction---Principles---Such findings, howsoever, erroneous those may be, if recorded by a Court of competent jurisdiction, cannot be interfered with by High Court, in exercise of its revisional jurisdiction, under S.115, C.P.C. unless such findings suffer from jurisdictional defect, illegality or material irregularity.

N.S. Venkatagiri Ayyangar and others v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 ref.

Haji Abdul Waheed Butt for Petitioner.

Sh. Muhammad Hanif for Respondent No. 1

Mian Muzaffar Hussain for Respondents Nos.2 and 3.

2002 C L C 1111

[Lahore]

Before Muhammad Khalid Alvi and Nazir Ahmad Siddiqui, JJ

GHULAM QADIR alias QADIR BAKHSH---Appellant

versus

Haji MUHAMMAD SULEMAN and 6 others---Respondents

Regular First Appeal No.87 of 1999, decided on 16th October, 2001.

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

----O. XVII, Rr.1(3) (Lahore Amendment) & 3---Closing of evidence--­Suit, dismissal of---Despite many opportunities, granted to plaintiff he failed to produce his evidence---Trial Court, closed evidence of plaintiff and dismissed the suit under O.XVII, R.3, C.P.C.---Plea raised by the plaintiff was that instead of dismissing the suit under O.XVII, R.3, C.P.C., the Trial Court, should have proceeded under O.XVII, .R.1(3), C.P.C.---Validity---Where the adjournments were made on the request of the plaintiff and he failed to comply with the order of the Trial Court in producing his evidence, the Court had rightly proceeded under O.XVII, R.3, C.P.C. instead of O.XVII, R.1(3), C.P.C.---Order passed by the Trial Court, whereby evidence of the plaintiff was closed and the suit was dismissed, was unexceptionable and the same was not interfered with by the High Court.

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

----O. XVII, R.1(3)---Evidence, failure to produce---Dismissal of suit under O.XVII, R.1(3), C.P.C.---Jurisdiction of Trial Court ---Scope--­Where it has been made impossible for the Trial Court by defaulting party, to proceed with the matter by failing to bring any material on record, provisions of O.XVII, R.1(3), C.P.C, does not debar the Trial Court from dismissing the suit.

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

----O. XIV, R.5---Issues, amendment of---Delay of 4-1/2 years in filing application for amendment of issues---Effect---Where the application was filed with the object to delay final disposal of the case and to avoid production of evidence, the application was rightly dismissed by Trial Court.

Mian Shamsul Haq Ansari for Appellant.

Syed Nizam-ud-Din Shah and Syed Qaisar Hassan Shah for Respondents.

Ch. Saghir Ahmad for Respondent No.2.

Date of hearing: 8th October, 2001.

2002 C L C 1116

[Lahore]

Before Jawwad S. Khawaja, J

Messrs PAKISTAN TELECOMMUNICATION COMPANY LTD. through General Manager (South)---Petitioner

versus

GOVERNMENT OF THE PUNJAB, through Secretary, Excise and Taxation, Lahore and another---Respondents

Writ Petition No.20840 of 2001, heard on 27th November, 2001.

Punjab Finance Act (XV of 1977)---

----S.3---Constitution of Pakistan (1973), Art.199 & 70(4), Fourth Sched., Part .1, Item No.48---Constitutional petition---Professional tax---Imposition of tax on corporations by Provincial Government under S.3 of the Punjab Finance Act, 1977---Contention of the petitioner was that by virtue of Item No.48 in the Federal Legislative List in Fourth Sched. of the Constitution, it was only the Federal Government which could impose the Professional tax---Validity---Levy of Professional tax by a Province or by local authority on a corporation was constitutionally not permissible---Levy of Professional tax by the Provincial Government was set aside---Constitutional petition was allowed accordingly.

Syed Abrar Hussain Naqvi for Petitioner

Zahid Aslam Khan, A.A.-G. for Respondents

Date of hearing: 27th November, 2001.

JUDGMENT

2002 C L C 1173

[Lahore]

Before Mian Saqib Nisar, J

ABDUL REHMAN and 5 others‑‑‑Petitioners

versus

MUHAMMAD BAKHSH ‑‑‑‑ Respondent

Civil Revision No.653/D of 1993, heard on 27th September, 2001.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑‑

‑‑‑‑S. 13(3)‑‑‑Talb‑i‑Ishhad, notice of‑‑‑Limitation‑‑‑Sale had taken place through mutation, dated 30‑8‑1990 and the pre‑emptor had the knowledge of sale on 5‑9‑1990‑‑‑Notice of Talb‑i‑Ishhad was issued on 1‑10‑1990‑‑­Validity‑‑‑Such notice was beyond the period of two weeks as prescribed in the provisions of S.13(3) of the Punjab , Pre‑emption Act, 1991.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 13‑‑‑Pre‑emption suit‑‑‑Talb‑i‑Muwathibat and Talb‑i‑Ishhad‑‑­Onus to prove‑‑‑Concurrent findings of fact by the Courts below ‑‑‑Non-­mentioning of date of knowledge of sale in the plaint‑‑‑Effect‑‑‑Sale had taken place through mutation, dated 30‑8‑1990 and the pre‑emptor had the knowledge of sale on 5‑9‑1990‑‑‑Notice of Talb‑i‑Ishhad was issued on 1‑10‑1990‑‑‑Both the Courts below decreed the suit in favour of the pre‑emptor ‑‑‑Contention of the vendee was that there were contradictions in the evidence produced by the pre‑emptor hence, the suit was liable to be dismissed‑‑‑Validity‑‑‑Contradictions were floating on the surface of the record and were consequential and vital for the purpose of proof of the issue of Talb‑i‑Muwathibat and also Talb‑i‑Ishhad, burden of which primarily was on the pre‑emptor ‑‑‑No date was mentioned in the plaint, in the present case, and the same could not be proved through evidence‑‑­Pre‑emptor, in order to avoid the consequence of not having made b9th the demands (Talbs) in accordance with law, had concocted story about learning of sale on unspecified date‑‑‑Inherent and vital discrepancies had been overlooked by the two Courts below and such was the case of non­-reading of evidence on record‑‑‑Judgments and decrees passed by the two Courts below were set aside and the suit filed by the pre‑emptor was dismissed.

Abdul Malik v. Muhammad Latif 1999 SCMR 717 and Altaf Hussain v. Abdul Hameed and others 2000 SCMR 314 ref.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of fact by the Courts below‑‑­Interference by High Court in exercise of revisional jurisdiction‑‑­Scope‑‑‑Such findings cannot be interfered with if the Courts below have properly considered and read the relevant evidence but where the concurrent findings of fact are based upon ignoring, overlooking or misreading the vital piece of evidence, the same can always be interfered with in revisional jurisdiction.

Muhammad Farooq Chishti Qureshi for Petitioners.

Malik Noor Muhammad Awan for Respondent.

Date of hearing: 27th September, 2001.

2002 C L C 1177

[Lahore]

Before Ghulam Mahmood Qureshi, J

COOPERATIVE MODEL TOWN SOCIETY (1962) LIMITED, Model Town, Lahore through Secretary‑‑‑Appellant

versus

Mst. ASGHARI SAFDAR and another‑‑‑Respondents

Regular Second Appeal No.36 of 1999, heard on 2nd October, 2001.

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

‑‑‑‑O. XLI, R.1‑‑‑Memorandum of appeal‑‑‑Necessary documents to be appended with‑‑‑Power of Appellate Court to dispense with copy of the decree appealed from‑‑‑Scope‑‑‑Appellant under O.XLI, R.1, C.P.C. is required to append with memorandum of appeal two documents, viz. the copy of decree appealed from and copy of judgment on which the decree is founded‑‑‑Appellate Court has power to dispense with the copy of judgment but has no power to dispense with the copy of decree‑‑‑Appeal cannot be considered to be properly and legally constituted unless the memorandum of appeal is accompanied with copy of decree appealed from.

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

‑‑‑‑O. XLI, R.I‑‑‑Appeal‑‑‑Non‑filing of certified copy of decree‑sheet alongwith the appeal is not a bona fide mistake.

Muhammad Latif Butt v. Muhammad Usman 1991 YLR 704; 1990 MLD 2094 and 1997 MLD 1795 ref.

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

‑‑‑‑O. XLI, R.1‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Appeal‑‑‑Failure to file copy of decree‑sheet in time ‑‑‑Condonation of delay ‑‑‑Validity‑‑­Mere filing of appeal before the Court and prosecution thereof could not be said to be an act of due diligence and in good faith‑‑‑Non‑filing of certified copies of decree alongwith memorandum of appeal‑‑‑Appeal filed without complying with mandatory requirements could not be said to be a properly instituted appeal‑‑‑Lower Appellate Court had rightly dismissed the appeal on the ground that copies of judgment and. decree were not appended with the memorandum of appeal.

1992 CLC 1204; PLD 1983 Pesh. 215 and 1985 CLC 1711 distinguished.

1997 MLD 1795 and Akbar Khan v. Muhammad Razaq alias Abdul Razaq PLD 1979 SC 380 ref.

(d) Words and phrases‑‑‑

--Due diligence‑‑‑Connotation‑‑‑Due diligence is performance of act with care and caution expected of a reasonable and prudent man in particular circumstances.

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

‑‑‑‑Ss. 100 & 115‑‑‑Second appeal, conversion into civil revision‑‑­Principles‑‑‑Revision was only competent where no right of appeal was available‑‑‑Where appellant had availed the remedy of filing of appeal, second appeal could not be treated as civil revision.

Chaudhry Muhammad Rashid for Appellant.

Mian Hamid‑ud‑Din Kasuri for Respondents.

Date of hearing: 2nd October, 2001.

2002 C L C 1198

[Lahore]

Before Amir Alam Khan, Karamat Nazir Bhandari and Mian Hamid Farooq, JJ

Malik AHMAD SAEED‑‑‑Petitioner

versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA and 22 others‑‑‑Respondents

Writ Petitions Nos.1569 and 2075 of 1998, decided on 10th October, 2001.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Laches‑‑‑Power (energy) Purchase Agreement‑‑‑Judicial interference‑‑‑Energy policy was announced in the year 1994 and the agreements were entered into in the year 1995‑‑‑Most of the projects went into production towards middle of the year 1997‑‑­Petitioner did not seek judicial interference in the years 1995, 1996 and in 1997 and it was only in April, 1998 when the Constitutional petition was filed‑‑‑Validity‑‑‑Petitioners were debarred from challenging the validity of agreement at such a belated stage‑‑‑Petition was suffering from laches and the same was dismissed in circumstances.

(b) Constitution of Pakistan (1973)---

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Power (energy) Purchase Agreements‑‑‑Judicial interference‑‑‑Grievance of the petitioners was that by entering into such agreements, the cost of electricity recoverable from consumers went up‑‑‑Validity‑‑‑In the present case, High Court arrived at a result that by allowing the petitioner, all the Power Producers would shut down their projects and remove their machinery etc. pack up and would go home‑‑‑Such act of the Power Producers would be a disastrous consequence not only to production of electricity but also to the economy as a whole and resultantly the foreign investors would loath to come to Pakistan as their agreements entered into with Government and containing sovereign guarantee could be declared void, even years after the agreements had been duly acted upon‑‑‑High Court observed with anguish that if it be case of two evils, the Court would lean in favour of lesser evil i.e. costly electricity was not within the province of Courts to sit over judgment upon the wisdom behind the policy‑‑‑Policy making was the exclusive domain of other two organs‑of the State and the Courts were not entitled to interfere in the policy‑‑‑High Court declined to interfere with the Power Purchase Agreements ‑‑‑Constitutional petition was dismissed in circumstances.

Sh. Maqbool Sadiq and Shakil‑ur‑Rehman Khan for Petitioner.

Tariq Kamal Qazi for Respondent No. 1.

Kh. Asif Mehmood for Respondents Nos.4 and 6.

Syed Ali Zafar, Haider Zaman Qureshi and Hamid Shabbir Aazar for Respondents Nos.7, 11, 12, 13, 15 and 17.

Ashtar Ausaf Ali for Respondent No. 17.

Salman Talib‑ud‑Din Aslam Hayat and Shahana Ahmed Ali Respondents Nos.3 and 23.

Umar Ata Bandial for Respondent No. 14

M. Nawaz Bhatti, Dy. A.‑G. for Government of Pakistan.

Nemo for the remaining Respondents.

Dates of hearing: 4th, 8th, 9th and 10th October, 2001.

2002 C L C 1203

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD HUSSAIN‑ ‑Petitioner

versus

MUHAMMAD ISMAIL and 4 others‑‑‑Respondents

Civil Revision Petitions Nos.473 and 222 of 1993, heard on 23rd October, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XLI, R. 22‑‑‑Cross‑appeal‑‑‑Dismissed as time‑barred‑‑‑Two appeals were filed in the Lower Appellate Court one by the petitioner and the other by the respondent‑‑‑Appeal filed by the respondent was allowed whereas that of the petitioner was dismissed as time‑barred‑‑‑Contention of the petitioner was that even if the appeal of the petitioner was barred by time, the same could have been treated and disposed of as cross‑objections‑‑‑Validity‑‑‑Where the cross ‑ appeal was time-­barred, the same could be treated and disposed of as cross­objections and the objections could be filed within 30 days of service of notice on the respondent‑‑‑Judgment and decree passed by the Lower Appellate Court was set aside by High Court in exercise of revisional jurisdiction and the case was remanded to the Lower Appellate Court for decision afresh after considering the appeal of the petitioner as cross­-objection.

Bawa Singh and others v. Thakar Singh and others AIR 1922 Lah. 423; Mihan. Singh and another v. Tilak Ram AIR 1934 Lah. 273; Mst. Nausha Bi v. Rangbaz and others PLD 1954 Lah. 265 and Dr. S.S. Naeemul Hameed v. Mst. Tahira Sultana and others 1989 MLD 3441 ref.

Ch. Shahbaz Khurshid for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd October, 2001.

2002 C L C 1209

[Lahore]

Before Mian Nazir Akhtar, J

MUHAMMAD ZAMAN‑‑‑Petitioner

versus

Sheikh ABDUL HAMID ‑‑‑ Respondent

Civil Revisions Nos.2046/D and 2047 of 1996, decided on 7th September, 2001.

(a) Benami transaction‑‑‑

‑‑‑‑ Benami character of transaction‑‑‑Relevant factors were the source of consideration and its payment; motive for Benami transaction; real intention of parties; Possession and production of original title deeds; possession and use of property in dispute and subsequent conduct of the parties including any act done in exercise of right of ownership‑‑‑Out of the above factors/considerations, one or more may assume greater importance in the given circumstances of a case‑‑‑Where alienation in favour of a son or a daughter particularly a minor who has no independent source of income and sufficient funds to purchase a property, the factor that price was actually paid by his/her father or a guardian is very material to show that the ostensible owner is Benami owner and the title actually vests in the father or guardian with whose money the property has been purchased‑‑‑Same may be the position of a wife or a sister or any other female relative who neither has independent source of income nor sufficient funds to purchase a property‑‑‑Where both the ostensible owner and the person claiming to be the real owner are financially well‑off and have independent sources of income, the position in such case is different‑‑‑Mere payment of price in such case. by a person claiming to be the real owner, per se, does not establish his title‑‑­Other factors like intention of parties and motive for Benami transaction and subsequent conduct of the parties may outweigh the consideration of payment of price through the hands of a person claiming to be the real owner.

Mst. Muhammad Bibi and 2 others v. Abdul Ghani and 2 others PLD 1975 Kar. 979; Sher Muhammad v. Muhammad Sharif PLD 1984 Lah. 117; Mst. Zohra Begum and 6 others v. Muhammad Ismail 1995 CLC 242; Jane Margrete William v. Abdul Hamid Mian 1995 CLC 1437; Mst. Halima v. Muhammad Kassan and others 1999 MLD 2934 Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 and Mrs., Kishwar Malik v. Lt.‑Col. M. Sadiq Malik PLD 1995 SC 457 ref.

(b) Motive‑

‑‑‑‑Motive and intention‑‑ Object and scope‑‑‑Distinction‑‑‑Motive for doing something is the basic reason to show as to why a person has committed certain act‑‑‑Act done without motive is done without any reason‑‑‑Subtle difference exists in motive and intention‑‑‑If a person picks up a glass and drinks water, his motive is to quench thrust and intention to pick up a glass and drink water‑‑‑If a person hits somebody with a weapon his intention may be to cause hurt to him although his motive may be to take revenge or create terrorism or merely to demonstrate his chivalry‑‑‑In some cases motive and intention may coincide but generally both are distinguishable‑‑‑Matters where law requires a party to prove its motive for doing an act, failure to establish motive defeats the claim made by such party.

(c) Benami transaction‑‑‑

‑‑‑‑Motive‑‑‑Onus to prove‑‑‑Motive for alienation in favour of a Benamidar must be proved by the person claiming to be the real owner.

(d) Benami transaction‑‑‑

‑‑‑Motive‑‑‑Onus to prove‑‑‑Motive inconsistent with pleadings‑‑‑Title documents not in possession of ostensible owner‑‑‑Suit property was in the name of the petitioner but respondent claimed himself to be the owner of the property and alleged the petitioner as only Benamidar‑‑‑Respondent was in possession of the property whereas title documents were in possession of the petitioner‑‑‑Both the Courts below decided the matter in favour of the respondent and concurrently dismissed the suit filed by the petitioner‑‑‑Validity‑‑‑Motive canvassed by the respondent in evidence regarding Benami purchase of the suit property was inconsistent with his plea set up in the written statement and as such there was no cogent motive for the respondent to have the property transferred in the petitioner's name‑‑‑Title documents were in possession of the petitioner and the subsequent conduct of the parties firmly established that the petitioner was the real owner of the property and the respondent was simply allowed to use the property as a licensee due to his close relationship with the petitioner‑‑‑Where respondent failed to prove the transaction to be Benami, mere use and possession of the property by the respondent could not be given much weight for holding that the petitioner was Benami owner‑‑‑Both the Courts below had not only misread the record but also drew wrong conclusion therefrom which did not legitimately flow from the same‑‑‑Judgments and decrees passed by both the Courts against the petitioner were set aside and the suit filed by the petitioner was decreed.

(e) Benami transaction‑‑‑

‑‑‑‑ Intention of Benami transaction‑‑‑Scope‑‑‑Intention is also a latent state of mind and can be gathered from the acts of omission or commission of the parties and all the attendant circumstances of the case including their conduct as such the same is relatable to the ultimate aim purpose or design of parties.

Allah Wasaya Malik for Petitioner.

Malik Noor Muhammad Awan for Respondent.

Date of hearing 8th June, 2001.

2002 C L C 1233

[Lahore]

Before Ali Nawaz Chowhan, J

ISLAMABAD CRICKET ASSOCIATION‑‑‑Petitioner

versus

CHAIRMAN, PAKISTAN CRICKET BOARD and others‑‑‑Respondents

Writ Petition No. 160 of 2002, decided on 15th March, 2002.

Constitution of Pakistan Cricket Control Board‑‑‑

‑‑‑Notification No.S.R.O.555(KE)/95, dated 22‑2‑1995‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Cricket Control Board‑‑‑Divisional Cricket Association‑‑‑Suspension of membership‑‑‑Ad hoc Committee appointed to take the position of suspended member‑‑­Divisional Cricket Association was aggrieved of the suspension of its membership by the Pakistan Cricket Control Board‑‑‑Plea raised by the Association was that the order of suspension and appointment of ad hoc committee was unlawfully passed by the Chairman of the Board exercising all its powers and had become the repository of all powers of General Body and the Council‑‑‑Validity‑‑‑Despite paragraph No.14 of the Constitution of the Pakistan Cricket Control Board, the act of the Chairman had element of maladministration and had to be checked‑‑‑High Court observed that when it was ad hoc committee heading a suspended body, it was not expected to remain in that position for an indefinite period‑‑‑Ad hoc committee having been functioning since October 26, 2000, and status quo had been brought about bickering which were not at all good for the game of cricket, the same was taken as a ground for suspension of the membership of the Association‑‑‑High Court directed the Federal Government to look into such aspect of the matter and to ensure that the Constitution of Pakistan Cricket Control Board was to be followed in letter and spirit as reflected in the Notification NO.S.R.O.555(KE)/95, dated 22‑2‑1995‑‑‑High Court depreciated the ad hoc state to continue and directed the Pakistan Cricket Control Board to arrange for the election of new members representing the territory of Islamabad within a period of seven weeks‑‑‑Petition was disposed of accordingly.

Syed Zulfiqar Abbas Naqvi for Petitioner.

Syed Asghar Haider for Respondent No. 1.

Dr. Sohail Akhtar for Respondent No.3..

2002 C L C 1323

[Lahore]

Before Ch. Ijaz Ahmad, J

GHULAM MUHAMMAD ‑‑‑Petitioner

versus

GOVERNMENT OF THE PUNJAB through Additional Chief Secretary, Services General Administration and Information Department, Civil Secretariat, Lahore and 3 others‑‑‑Respondents

Writ Petition No.8253 of 1997, heard on 5th November, 2001.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Government accommodation, allotment of‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑‑Prerogative of competent Authority to allot or not to allot the accommodation under its policy to the Government officials/officers‑‑‑High Court has no jurisdiction to take cognizance of the matter.

Dr. Munir Ahmad, Medical Officer v. Chairman House Allotment Committee 1983 CLC 1783; Iris Sammuel Gill v. Government of Punjab PLD 1979 Lah. 467 and Imtiaz Hussain v. Government of Pakistan through Secretary and others 1992 CLC 1122 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Clean hands‑‑‑Government accommodation, allotment of‑‑‑Petitioner retired from service in Grade­17, whereas his son was in Grade‑7‑‑‑Recommendation was secured by the petitioner from the Chief Minister in relaxation of entitlement rules for allotment of accommodation to his son under the prevalent scheme for allotment of Government accommodation‑‑‑Authorities did not comply with the recommendation and refused to allot accommodation beyond the entitlement of the son of the petitioner‑‑‑Validity‑‑‑Where the recommendation was not in accordance with law, the authorities were well within their rights not to obey the direction of the Chief Minister‑‑ ‑Authorities stated that three/four roomed quarters were allotted under, parent concession scheme under political pressure and the same was causing unnecessary litigation and that the Government had decided not to allot any accommodation in relaxation of rule in future‑‑‑Petitioner, in the present case, had not approached the Court with clean hands, therefore, High Court declined to exercise its discretion in favour of the petitioner‑‑‑Petition was dismissed in circumstances.

Imtiaz Hussain v. Government of Pakistan through Secretary. and others 1992 CLC 1122 distinguished.

Muhammad Iqbal Khokhar v. Government of Punjab PLD 1991 SC 35; Captain (R) Abdul Qayyum v. Muhammad Iqbal Khokhar PLD 1992 SC 184; Zahid Akhtar v. Government of the Punjab PLD 1995 SC 530 and Syed Nawab Raunaq Ali's case PLD 1973 SC 236 ref.

Ch. Muhammad Zahoor Nasir for Petitioner.

Malik Akhtar Hussain Awan, Addl A.‑G. for Respondents Nos. l to 3.

Jawaad Hassan for Respondent No.4.

Date of hearing: 5th November, 2001.

2002 C L C 1327

[Lahore]

Before Mansoor Ahmad, J

MUHAMMAD MALIK and 3 others‑‑‑Petitioners

versus

Mst. RASOOL BIBI and 6 others‑‑‑Respondents

Civil Revision No.267/D of 1991, decided on 1st November, 2001.

(a) Islamic Law‑‑‑

‑‑‑Gift‑‑‑Undivided share of agriculture estate‑‑‑Such estate can form subject‑matter of gift.

(b) Islamic Law‑‑‑

‑‑Gift of Musha‑‑‑Validity‑‑‑Requirements‑‑‑Such gift is valid if the donor has done all that law requires to do to divest himself from the property‑‑‑One of the important test that is applied in cases of gift under Islamic Law is to see the intention on the part of the donor‑‑­Delivery of possession in gift of Musha is not necessary as all parties of undivided share arc presumed to be in constructive possession‑‑­Test of delivery of possession is not rigorously applied in Musha gift.

Nazir and others v. Muhammad Shah and others AIR 1936 Lah. 92; Sheikh Muhammad Mumtaz Ahmad v. Zubada Jan and others Indian Appeal case Vo1.XVI 205 and Mrs. Razia v. Wajid Ali 1986 CLC 118 ref.

(c) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Extent‑‑‑Muslim under Islamic Law can dispose of his property in favour of a heir completely excluding other heirs and no restriction or fetters exist under the Muslim Law to prevent a person from gifting the whole or any part of his property to one of his legal heirs.

Noor Muhammad Khan and others v. Habib Ullah Khan PLD 1994 SC 650 ref.

(d) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Gift of undivided agriculture land‑‑‑Failure to deliver possession‑‑‑Plaintiffs assailed gift deed in favour of defendant made by father of the parties‑‑‑Registered gift deed was produced by the defendant and the deed was not objected to‑‑‑Both the Courts below dismissed the suit as well as appeal, filed by the plaintiffs‑‑‑Contention of the plaintiffs was that the possession of suit property was never delivered to the defendant as the same was part of undivided joint estate‑‑‑Validity‑‑‑Gift deed being a registered document carried presumption of correctness until and unless rebutted‑‑‑Plaintiffs could not produce any evidence to rebut the contents of the Registered gift deed, therefore, both the Courts below had correctly upheld the same‑‑‑Property gifted was a part of undivided joint estate, therefore, the possession of the defendant as a constructive possession held good for the purpose of completion of gift‑‑‑Judgments and decrees passed by the Courts below were maintained.

Chaudhry Muhammad Anwar for Petitioners

C.A. Rehman for Respondents

Date of hearing : 27th September, 2001

2002 C L C 1339

[Lahore]

Before Mansoor Ahmad, J

FIDA HUSSAIN ‑‑‑Petitioner

versus

JALAL KHAN‑‑‑Respondent

Civil Revision No. 1472 of 1992, decided on 23rd October, 2001.

(a) Words and phrases ‑‑‑

‑‑‑‑Bandi‑‑‑Connotation‑‑‑Bandi is small traditional book of record maintained by individual in rural areas of Punjab.

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

‑‑‑‑S. 21 (c)‑‑‑Term "certainty" occurring in S.21(c), Specific Relief Act, 1877‑‑‑Connotation‑‑‑Certainty must be reasonable one having regard to subject‑matter of contract‑‑‑Principle for certainty is that description must be such as to enable the Court to determine with certainty the subject-­matter of the contract.

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

‑‑‑‑Ss. 12 & 21(c)‑‑‑Specific performance of agreement to sell written on a "Bandi‑‑‑Contract not specifically enforceable‑‑‑Failure to prove particulars of land‑‑‑Plaintiff filed suit for specific performance on the ground that the suit land was agreed by defendant to be sold to the plaintiff for a consideration‑‑‑Defendant denied execution of any agreement and also denied receipt of any part payment of consideration‑‑­Plaintiff relied upon personal note book to establish the agreement‑‑‑Note book did not contain particulars of land to identify the same ‑‑‑Effect‑‑­Where particulars to identify the land were missing in the agreement to sell, the Appellate Court had rightly found that the agreement to sell lacked certainty and was not enforceable in view of the principle enshrined under S.21(c) of the Specific Relief Act, 1877‑‑‑Neither any material irregularity was committed in appraisement of evidence by the Appellate Court, nor any jurisdictional defect or any other legal infirmity was found in the judgment‑‑‑ Plaintiff having failed to prove the agreement to sell, High Court declined to interfere with the judgment and decree passed by the Appellate Court.

Khizar Abbas Khan for Petitioner.

Nemo for Respondent.

Date of hearing: 10th October, 2001.

2002 C L C 1343

[Lahore]

Before Syed Zahid Hussain, J

EJAZ AHMAD KHAN and 20 others‑‑‑Petitioners

versus

ADDITIONAL COMMISSIONER (REV.)/SETTLEMENT COMMISSIONER (NOTIFIED OFFICER), LAHORE DIVISION, LAHORE and another‑‑‑‑Respondents

Writ Petition No.33/R of 1992, herd on 20th November, 2001.

(a) Administration of justice‑‑‑

‑‑‑‑ Ex parte report‑‑‑Validity‑‑‑Report prepared ex parte in the absence of a party could not be made basis for the decision.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑Ss. 2 & 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Transfer of Evacuee property‑‑‑Notified Officer ordered transfer of entire property to respondent while non‑suiting the predecessor of petitioners on ground of belated submission of C. H. Form and that respondent was not found in possession as per report of Naib­-Tehsildar, dated 16‑7‑1991‑‑‑Contention of petitioners was that such report being ex parte had little value in law‑‑‑Validity‑‑‑Report prepared ex parte in absence of a party could not be made basis for decision‑‑­Survey List had shown both the parties in possession of house, which fact also stood verified by first spot inspection carried out by Deputy Settlement Commissioner as per order, dated 11‑6‑1960‑‑‑Respondent had stated before Deputy Settlement Commissioner on 27‑2‑1960 that one room was in his possession, thus, he could not claim the whole of it nor was entitled to the same‑‑‑High Court instead of entering into controversy as to who had preferential claim to the house, found that both the parties could appropriately be accommodated therein instead of excluding totally the other, therefore, it was considered just, fair and appropriate to transfer them half portion each vertically‑ ‑‑Parties were directed by High Court to appear before Notified Officer having jurisdiction in the matter, who would demarcate and divide the premises by keeping in view the convenience and easements of the parties and issue title documents for the respective portions‑‑‑Constitutional petition was disposed of accordingly.

Ch. Altaf Hussain and others v. The Chief Settlement Commissioner and others PLD 1965 SC 68; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; Mst. Shah Jahan Begum v. Mst. Shabbir Fatima and another PLD 1991 SC 614 and Sh. Fazal Hussain v. Abdul Waheed and others 1992 SCMR 931 ref.

Kh. Muhammad Akram for Petitioner.

Ch. Mushtaq Masood (on Court's call).

Muhammad Hanif Niazi for Respondent No.2.

Date of hearing: 20th November, 2001.

2002 C L C 1354

[Lahore]

before Abdul Shakoor Paracha, J

ANJUMAN‑E‑KHADMAN RASOOL

“MASJID JAMIA HANFIA FAROOQIA”

GULISTAN COLONY, MUSTAFA ABAD, LAHORE through President of the Anjuman‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE

WITH POWERS OF RENT CONTROLLER, LAHORE and another‑‑‑Respondents

Writ Petitions Nos. 13236, 13237, 13238 and 13239 of 2001, heard on 24th October 2001.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13(2)(i) & 5‑‑‑Ejectment of tenant‑‑‑Default in payment of monthly rent‑‑‑Enhancement in rent‑‑‑Monthly rent of the premises was enhanced from Rs.175 to Rs.250 and the same ‑had been tendered by the tenant‑‑‑Landlord demanded Rs.500 per month as rent instead of Rs.250 as agreed between the parties‑‑‑Tenant started paying agreed rent, firstly through money order and subsequently started depositing in the Court‑‑­Validity‑‑‑No justification existed for the landlord to ask for enhancement in rent of Rs.500 per month instead of getting the agreed rent‑‑‑No default thus, was committed by the tenant in circumstances.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ‑‑‑

‑‑‑‑S, 13(2)(vi)‑‑‑Ejectment of tenant‑‑‑Reconstruction, plea of‑‑‑Extension of mosque Principle‑‑‑Where mosque has to be extended, the, only way of getting vacation of the premises from tenant is to get the plan approved from local Authorities and then ejectment petition can be filed under S.13(2)(vi) of the West Pakistan Urban Rent Restriction Ordinance, 1959.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(3)(a)(I‑a)‑‑‑Expression "own occupation" and "requires"‑‑­Impact‑‑‑For initiating proceedings under S.13(3)(a) of the West Pakistan Urban Rent Restriction Ordinance, 1959, the emphasis is more on the words "own occupation" rather than on the word "requires"‑ ‑‑Need of landlord should not always be present in the sense of constituting strictly individual and personal need but the premises may be needed for landlord or for his children and no other relation.

Muhammad Saeed v. Anjuman‑e‑Jamia Hanfia (Regd.) Al‑Minar Mosque PLD 1982 Lah. 657 rel.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Ejectment of tenant‑‑‑Ground of extension of the building‑‑‑Scope‑‑‑No provision exists in West Pakistan Urban Rent Restriction Ordinance, 1959 for ejectment of tenant on the ground of extension of the building.

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(2)(i)‑‑‑Constitution of Pakistan (1973), Art.194‑‑‑Constitutional petition ‑‑‑Ejectment of tenant‑‑‑Default in monthly rent‑‑‑Landlord demanded 100% increase in monthly rent and refused to accept the agreed enhancement in the rent‑‑‑Tenant initially tendered the rent through money order and later on started depositing the same in the Court‑‑‑Rent Controller allowed the ejectment petition and passed the order of eviction of the tenant‑‑‑Lower Appellate Court reversed the finding of Rent Controller on default and dismissed the petition‑‑­Validity‑‑‑Landlord had failed to prove the default against the tenant, and as no other ground for ejectment was available to the landlord, Appellate Court had rightly dismissed the ejectment petition‑‑‑High Court declined to interfere with the judgment passed by the Appellate Court.

Muhammad Saeed v. Anjuman‑e‑Jamia Hanfia (Regd.) Al‑Minar Mosque PLD 1982 Lah. 657 and Mst. Zulekha and 7 others v. Masjid‑e­Merajun Nabi Trust and 5 others 1984 CLC 3057 ref.

Mian Javed Rashid and Mian Muhammad Tahir for Petitioner.

Sh. Afzaal Ahmed Qureshi and Zahid Iqbal Qureshi for Respondents.

Ms. Roshan Ara Begum, Asstt. A.‑G.

Date of hearing: 24th October, 2001.

2002 C L C 1361

[Lahore]

Before Ch. Ijaz Ahmad

and Mian Saqib Nisar, JJ

MUHAMMAD ARIF‑‑‑Appellant

Versus

Malik MUHAMMAD FAROOQ and 4 others‑‑‑Respondents

Regular First Appeal No.436 of 2000, heard on 21st November, 2001.

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

‑‑‑‑ S. 151, O. XLI, R.33 & O. I, R.10‑‑‑ Qanun‑e‑Shahadat (10 of 1984), Art.57‑‑‑ Evidence recorded in one suit and relied upon by the Trial Court in the other without consolidating both the suits‑‑‑Effect‑‑‑Two suits were pending before' the same Trial Court‑‑‑Application to consolidate both the suits was filed by the appellants but the suits were not consolidated‑‑‑On the basis of ex parte evidence recorded in the suit in which the appellants were not party, Trial Court decided both the suits and passed judgment and decree against the appellants‑‑‑Validity‑‑‑High Court directed the Trial Curt to implead the appellants in the other suit and consolidate both the suits‑‑‑Judgment and decree passed by the Trial Court were set aside and the case was remanded for decision afresh.

Muhammad Mehrban v. Sadar Din and others 1992 MLD 2179; Mukhtar Baig and others v. Sardar Baig, and others 2000 SCMR 45: Industrial Development Bank of Pakistan v. Mst. Saadia Azmat Ullah and others 1999 SCMR 2874; Haji Ghulam Rasool v. Sh. Imdad Hussain and others PLD 1968 Lah. 501, Mst. Jahana Bibi v. Iqbal 1991 CLC 553; M.A. Khan v. Khan PLD 1984 Lah. 396; Raam Naraianan and others v. Nawab Sajad Ali Khan AIR 1946 and Hirnavan v. Basson AIR 1943 Cal. 227 ref.

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

‑‑‑‑O. I, R. 10 & O. XLI, R. 33‑‑‑Impleading or deleting a party‑‑­Jurisdiction of Courts‑‑‑Scope‑‑‑Trial Court has ample power under O. I, R.10, C.P.C. to transpose or implead any proper party in the proceedings‑‑‑High Court has also same power in view of O. XLI, R.33, C.P.C.

Suleman Khan's case PLD SC 590 rel.

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

‑‑‑‑O. VI, R. 17 & O. VIII, R. 9‑‑‑Amendment in pleadings‑‑‑Leave of Court‑‑‑Requirement‑‑‑Subsequent to filing of written statement, the defendants, without permission of the Trial Court, filed consenting written statement‑‑‑Trial Court decided the suit in the light of the consenting written statement‑‑‑Validity‑‑‑Trial Court had erred in law to decide the case on the basis of such consenting written statement.

Haji Suleman Ali Muhammad's case PLD 1982 Kar. 111 rel.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 57‑‑‑Evidence recorded in another case‑‑‑Reliance on such evidence is not permissible by virtue of Art.57 of the Qanun‑e‑Shahadat, 1984.

Noor Elahi v. The State PLD 1966 SC 708 ref.

Syed Muhammad Kaleem Ahmad Khurshid for Appellant.

Ch. Mushtaq Hussain for Respondents.

Date of hearing: 21st November, 1001.

2002 C L C 1372

[Lahore]

Before Amir Alam Khan, J

MUHAMMAD SHAFIQ and another‑‑‑Petitioners

Versus

MAQSOOD AHMAD and 2 others‑‑‑Respondents

Writ Petition No. 15897 of 1995, decided on 14th November, 2001

(a) Conciliation Courts Ordinance (XLIV of 1961)‑‑‑

‑‑‑Ss. 3, 4, 6, 7 & Sched. Parts I & II; Section B‑‑‑Constitution of Pakistan (1973), Arts.175(2) & 199‑‑‑Constitutional petition‑‑‑Suit for damages‑‑‑Conciliation Court decreed the suit‑‑‑Revision petition filed against such decree was dismissed being time‑barred‑‑‑Validity‑‑‑Suit by plaintiff was not the one mentioned at Serial No.3 of section B of Part‑I of Schedule of the Conciliation Courts Ordinance, 1961 i.e. suit for compensation for wrongfully taking or damaging movable property‑‑­Plaint showed that no movable property of plaintiff had wrongfully been taken or damaged by defendants, rather it was the plaintiff, who had removed the furniture and fixtures himself and had to suffer loss because of the same‑‑‑No suit for such voluntary act of plaintiff was competent‑‑­No jurisdiction vested in the Conciliation Court to entertain such suit or decree the same‑‑‑Judgment/decree of Conciliation Court was wholly without jurisdiction, void and non‑existent‑‑‑No limitation would run against a void order, thus revisional Court had fallen in error to dismiss revision petition on ground of limitation‑‑‑Section 3 of the Conciliation

Courts Ordinance, 1961, provided that cases falling under Part‑II of Schedule could be referred to Conciliation Court only with consent of all the parties thereto‑‑‑Defendants had never agreed to any such reference, thus suit filed by plaintiff could not be tried by Conciliation Court by treating the same to be a suit as described in Section B of Part‑II of the Schedule to the Ordinance‑‑‑High Court accepted Constitutional petition and declared the impugned orders to be without lawful authority and of no legal effect.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 3‑‑‑Void order‑‑‑No limitation runs against a void order.

Syed Mumtaz Hussain Bokhari for Petitioner.

Respondent proceed Ex parte.

Date of hearing: 25th October, 2001.

2002 C L C 1379

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. ZOHRA BEGUM‑‑‑Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY, LAHORE through Director‑General, and 4 others‑‑‑Respondents

Writ Petition No.24357 of 2000, decided on 15th November, 2001.

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

‑‑‑‑O. I, R. 10‑‑‑Impleading of party‑‑‑Finality of order‑‑‑Failure to assail the order before any higher forum‑‑‑Effect‑‑‑Where application under O.I, R.10, C. P. C. was allowed by the Trial Court after hearing the parties and vires of the order was not challenged before any higher forum, the same had become final between the parties in circumstances.

Pir Bakhsh's case PLD 1987 SC 145 ref.

(b) Practice and procedure‑‑‑

‑‑‑‑ Observations of Court in interim orders‑‑‑Effect‑‑‑Any such observation is not final between the parties and the same is tentative in nature which cannot operate to prejudice any party at the time of decision of suit.

Mehr Muhammad Tari v. Muhammad Shafi and others 1986 SCMR 1976 ref.

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

‑‑O. I, R. 10‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition Deletion of necessary parties‑‑‑Respondents filed application before Trial Court for deletion of their names from the plaint as they were not necessary, parties‑‑‑Trial Court dismissed the application but the Appellate Court allowed the revision against that order and deleted the names of the respondents‑‑‑Validity‑‑‑Where the Appellate Court did not advert to the reasoning of the Trial Court and decided the case merely on surmises and conjectures, the same was in violation of the law‑‑‑In the present case, it was in the interest of the parties to avoid multiplicity of litigation and the respondents were necessary and proper party‑‑‑Order passed by the Appellate Court was set aside and that of the Trial Court was upheld‑‑‑Constitutional petition was allowed accordingly.

Mst. Nooran and another v. Shah Muhammad alias Shahu PLD 1968 Lah., 433; Abdul Hakim and 2 others v. Saaduliah Khan and 2 others PLD 1970 SC 63; Raja and others v. Hussain and others PLD 1957 (W.P.) Lah. 52 and Abdul Wali Khan's case 1975 SC 463 ref.

Mirza Hafeez‑ur‑Rehman for Petitioner.

Mian Muzafar Hussain for Respondents Nos. 1 and 2, Ashtar Abbas for Respondents Nos.3 and 4.

2002 C L C 1396

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD JAVED IQBAL‑‑‑Petitioner

Versus

Mst. TAHIRA NAHEED and others‑‑‑Respondents

Writ Petition No.5556 of 2001, decided on 10th April, 2002.

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

‑‑‑‑S. 5 & Sched.‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.113‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for recovery of dowery articles Document exhibited without objection‑‑­List of ,articles was annexed with the plaint and it was in the notice of the defendant right from the inception which was not only the basis of the suit but was mentioned in the plaint and the same was exhibited by the Family Court without any objection from the defendant‑‑‑Suit was decreed by the Family Court in favour of the plaintiff as per the list and the judgment and decree was maintained by the Appellate Court‑‑­Contention of the defendant was that the list of the articles was not proved hence the judgments and decrees passed by the Courts below were liable to be set aside‑‑‑Validity‑‑‑List was exhibited without objection from the defendant and the same was in the knowledge of the defendant right from the inception of proceedings‑‑‑Such document could not be objected to in the proceedings under Art.199 of the Constitution‑‑Both the Courts below had neither exceeded their jurisdiction nor acted without jurisdiction‑‑‑Family Court had examined/assessed the evidence and its findings were based on evidence‑‑‑High Court in exercise of jurisdiction under Art. 199 of the Constitution declined to interfere with the findings recorded by the Family Court‑‑‑Constitutional petition was dismissed in circumstances.

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

‑‑‑‑S. 17‑‑‑Civil Procedure Code(V of 1908), Preamble‑‑‑ Qanun‑e-­Shahadat (10 of 1984), Preamble‑‑‑Proceedings before Family Court‑‑­provisions of Civil Procedure Code, 1908, and Qanun‑e‑Shahadat, 1984‑‑‑Applicability‑‑‑Said provisions do not apply to proceedings before Family Court.

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

‑‑‑‑S. 5 & Sched.‑‑- Dowery articles‑‑‑Value‑‑‑Determination‑‑‑Family Court decreed the‑ suit for recovery of articles according to the list annexed with the plaint but did not determine the value, of the articles‑‑­Validity‑‑‑List contained particulars of each and every item of the dowery, therefore, the list could be executed to the extent of the articles specified therein‑‑‑If evidence as regard the value of the articles was not available on record, no illegality was committed by the Family Court in not determining the value of the articles.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 163‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Special oath, non‑taking of‑‑‑Suit for recovery of dowery articles was decided in favour of the plaintiff on the basis of evidence as the defendant was unwilling to decide the matter on special oath‑‑­Validity‑‑‑Judgment passed by the Family Court was returned on the basis of evidence after correct appraisal and the finding was not based on any adverse presumption against the defendant for his unwillingness to decide the matter in issue on special oath under Art.163 of Qanun‑e­-Shahadat, 1984‑‑‑High Court declined to interfere with the .judgment passed by the Family Court in circumstances.

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

‑‑‑S. 18‑‑‑Appearance through agent‑‑‑Non‑appearance of plaintiff in witness‑box‑ Defendant raised an objection that the plaintiff did not appear herself in the suit but had produced her father as special attorney in the Family Court‑‑‑Validity‑‑‑Appearance through agent was legally permissible under S.18 of West Pakistan Family Courts Act, 1964‑‑­Family Court had rightly not drawn adverse inference due to non­appearance of the plaintiff in the witness‑box in support of her claim.

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

‑‑‑‑Art. 199‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.14‑‑­Constitutional petition‑‑‑New plea‑‑‑Petitioner raised a plea which was not raised before the Appellate Court‑‑‑Effect‑‑‑Ground not agitated before the Appellate Court could not be raised in the Constitutional petition.

Muhammad Naveed Hashmi for Petitioner.

Islam Ali Qureshi for Respondents

Date of hearing: 27th March, 2002

2002 C L C 1405

[Lahore]

Before Mian Nazir Akhtar, J

MUHAMMAD AMIN ‑‑‑Petitioner

Versus

DISTRICT NAZIM, FAISALABAD and another‑‑‑Respondents

Writ Petition No. 19163 of 2001, decided on 24th May, 2002:

(a) West Pakistan Rules under Muslim Family Laws Ordinance, 1961‑‑‑

‑‑‑‑‑7(3)‑‑‑Licence of Nikah Registrar‑‑‑Nature of such licence ­Revocation Conditions Licence to act as Nikah Registrar is granted under the provisions of R.7 of the West Pakistan Rules under Muslim Family Laws Ordinance, 1961 as such the licence is permanent in nature and can be revoked only for violation of any of the conditions of the licence.

(b) West Pakistan Rules under Muslim Family Laws Ordinance, 1961‑‑‑

‑‑‑. 7(3)-‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Natural justice, principle of‑‑‑Revocation of licence of Nikah Registrar‑‑‑Shifting of residence‑‑‑Petitioner was granted licence to act as Nikah Registrar and the licence was revoked by the Authorities on the complaint that he had shifted his residence‑‑‑No opportunity of hearing was given to the petitioner to show that he had not shifted his residence‑‑­Validity‑‑‑Where no such opportunity was given to the petitioner to rebut the allegation made against him, he was condemned unheard‑‑‑Authorities were not competent to pass the order of revocation of licence without hearing the petitioner and recording a specific finding to the effect that he had violated any of the conditions of the licence‑‑‑Order passed by the Authorities was without lawful authority and of no legal effect‑‑‑High Court set aside the order and restored the licence in circumstances.

Syed Wasaf Ali Shah v. Secretary Interiors, Government of Pakistan 1991 PCr.LJ 32 ref.

(c) Natural justice, principles of‑‑‑

‑‑‑‑Principles of natural justice are part of every law unless their application is specifically excluded.

The University of Dacca through Vice‑Chancellor v. Zakir Ahmed PLD 1965 SC 90 ref.

Malik Mahmood Ahmad Rehan for Petitioner

Nemo for Respondents.

2002 C L C 1409

[Lahore]

Before Farrukh Lateef, J

HASHIM‑‑‑Petitioner

Versus

JUDGE, FAMILY COURT and others‑‑‑Respondents

Writ Petition No. 1954 of 2002, decided on 18th March, 2002.

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

‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑ Khula‑‑‑Return .of benefits‑‑‑Amount received by father of wife‑‑‑Marriage was dissolved on the basis of Khula‑‑­Nikahnama mentioned that the father of the wife obtained a sum of Rs.95,000 for giving her hand to the husband‑‑‑Plea raised by the husband was that the Family Court had not ordered return of the amount which was received by the father‑‑‑Validity‑‑‑Husband could not prove as to what benefits were received by wife during subsistence of marriage‑‑­As the amount was not received by the wife herself, therefore, no illegality was committed by the Family Court in not making any order for the return of the alleged benefit by way of Khula'‑‑‑Petitioner failed to point out as to which portion of evidence was not read or what piece of evidence was misread by the Family Court‑‑‑Family Court had the jurisdiction to entertain and dispose of the suit for dissolution of marriage as well as that of restitution of conjugal rights‑‑‑High Court declined to interfere with the judgment and decree passed by the Family Court, as the same was not without lawful authority‑‑‑Constitutional petition was dismissed in limine.

Sh. Abdul Samad for Petitioner.

2002 C L C 1411

[Lahore]

Before Mian Saqib Nisar. J

GHULAM ALI and 26 others‑‑‑Appellants

Versus

SAMAILA and 21 others‑‑‑‑Respondents

Regular Second Appeal No.84 of 1975, heard on 31st October, 2001.

(a) Question of law‑‑‑

‑‑‑‑ Misinterpretation or misconstruction of a document is a question of law.

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

‑‑‑‑S. 100‑‑‑Second appeal‑‑‑Concurrent findings of fact based on gross misinterpretation and misreading of documentary evidence‑‑‑High Court set aside such findings in second appeal.

(c) Punjab Tenancy Act (XVI of 1887)‑‑‑

‑‑‑‑S. 114(2)(b)‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Qanun‑e­-Shahadat (10 of 1984), Arts.31, 103 & 114‑‑‑Contract Act (IX of 1872), S.62‑‑‑Ownership claim by Taraddadkars‑‑‑Plaintiffs filed. suit for declaration that they being Taraddadkars of suit land by virtue of Mutation No.83 were entitled by operation of law to ownership of 10/16th share thereof and not 1/4th share as had been given to them through Mutation No.227‑‑‑Trial Court decreed the suit‑‑‑Appellate Court upheld the decree‑‑‑Validity‑‑‑Main condition of Mutation No.83 (containing terms and conditions of Taraddadkari) about share of produce agreed upon between parties was up to 1/4th share, which remained unchanged‑‑‑Mere oral‑statement of one of defendants' witness admitting the share of produce to the extent of~10/16th share, could not be given much weight in the light of admitted document on record i.e. Mutation No.83 and particularly when there was no written instrument between the parties changing terms and conditions thereof‑‑‑Had parties intended to change the terms and conditions of Mutation No.83, they could have easily done so by another written instrument, which could have fallen within the category of notation of contract‑‑‑Plaintiffs though present at the time of attestation of Mutation No.227, but had not raised any objection against it and had filed suit after considerable time, which had adversely reflected upon their conduct‑‑‑Mutation No.227 had rightly been attested in the light of provisions of S.114(2)(b) of Punjab Tenancy Act, 1887, where-under Taraddadkars were entitled to ownership of that part of land under Taraddadkari, which corresponded to the share of produce‑‑‑Both the Courts below had grossly misinterpreted and misread Mutation No.83‑‑‑High Court accepted appeal and set aside impugned judgments and decrees with the result of suit of the plaintiff stood dismissed.

(d) Punjab Tenancy Act (XVI of 1887)‑‑‑-

‑‑‑‑S. 114(2)(b)‑‑‑Taraddadkar under S.114(2)(b) of the Punjab Tenancy Act are entitled to ownership of that part of land under Taraddadkari, which corresponds to their share of produce.

Settlement Manual by Douie's paras.173 and 211 ref.

Dr. A. Basit for Appellants.

S. M. Tayyab for Respondents.

Date of hearing: 31st October, 2001

2002 C L C 1442

[Lahore]

Before Farrukh Lateef, J

ALTAF HUSSAIN and others‑‑‑Appellants

Versus

MUNICIPAL CORPORATION, MULTAN‑‑‑Respondent

Regular Second Appeal No.86 of 1986, decided on 30th April, 2002.

Damages‑‑‑

‑‑‑‑ Suit for damages against Municipal Corporation‑‑‑Plaintiffs in their suit had claimed damage on account of illegal demolition of their tannery by staff of defendant/ Corporation‑‑‑ ‑Trial Court after hearing parties, dismissed suit and Appellate Court upheld judgment and decree passed by Trial Court‑‑‑Second appeal‑‑‑Plaintiffs had failed to show as to how it was proved from documents filed by them in support of their claim that building in question was unlawfully demolished by the Corporation‑‑­Even if those documents were considered by Courts, it could not be inferred or established from said documents that tannery of appellants was illegally demolished by staff of the Corporation‑‑‑In order to prove that plaintiffs were entitled to damages on account of unlawful or unwarranted act of the Corporation, it was necessary that plaintiffs should have produced evidence showing that alleged demolition was ordered by the Administrator or some other competent officer of the Corporation and that said order was executed by Corporation through its staff and without such an evidence Corporation could not be saddled with liability of paying damages‑‑‑Even otherwise the Corporation could not be held liable and responsible for act of its employees which could be done without any authority or direction from the Corporation, in that event liability of unauthorized act would be on employees in,their personal capacity‑‑‑Evidence produced on record showed that it .was not proved that tannery was demolished by staff of Corporation‑‑‑Appeal was dismissed by the High Court being devoid of merits.

Amin‑ud‑Din Khan for Appellant.

Haji Muhammad Aslam Malik for Respondent.

Date of hearing: 17th April, 2002.

2002 C L C 1450

[Lahore]

Before Farrukh Lateef, J

ARSHAD ALI ‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, VEHARI and others‑-‑‑Respondents

Writ Petition No. 5514 of 2001, decided on 11th June, 2002.

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

‑‑‑‑S. 5 & Sched‑‑‑Constitution of Pakistan (1973),Art.199‑‑‑Constitutional petition Suit for maintenance‑‑‑Right of maintenance of wife‑‑‑Conditions‑‑‑Husband though was bound to maintain his wife, but right of maintenance of wife was subject to conditions; that she must be faithful to the husband and obey his reasonable order and if refused herself to husband, he was not bound to maintain her‑‑‑Wife was not entitled to maintenance when she lived apart from husband except for non‑payment of her dower in which case her right of maintenance would continue even though she was living apart‑‑‑If wife of her own accord was living apart from her husband and was not willing to live with him at any cost, she was not entitled to maintenance‑‑‑Finding of Family Court that wife was not entitled to maintenance, was based on evidence coupled with personal observation of Court about demeanour of parties‑‑‑Findings of Family Court could not be brushed aside lightly without assigning any reason, as had been done by Appellate Court‑‑‑Findings of Appellate Court were not based on evidence and no reason was assigned by Appellate Court in its judgment‑‑‑Arbitrary and fanciful judgment of Appellate Court was declared illegal, in circumstances.

Rao Jamshed Ali and Muhammad Javed Iqbal for Petitioner.

Rana A.D. Kamran for Respondent No.3.

Date of hearing: 11th June, 2002.

2002 C L C 1513

[Lahore]

Before Farrukh Lateef, J

Mst. RUKHSANA KAUSAR‑‑‑Petitioner

Versus

MUHAMMAD ALI and others‑‑‑Respondents

Writ Petition No.8590 of 2001, decided on 30th April, 2002.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Scope‑‑‑High Court in exercise of its Constitutional jurisdiction could not sit as Court of appeal and could not reappraise evidence to come to its own independent conclusion where finding of facts had been recorded by Courts below after giving good reasons in support of the same.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for dissolution of marriage on ground of Khula'‑‑‑Consideration for Khula'‑Suit having been decreed by Family Court, plaintiff wife filed appeal against judgment of Family Court only to the extent that consideration of Khula determined by Family Court as 7 Tolas of gold ornaments was illegal as she had not received the same in her dower‑‑‑Wife prayed that consideration for Khula' be set aside and

her suit be decreed unconditionally but Appellate Court dismissed the appeal‑‑‑Finding of Family Court that 7 Tolas of gold ornaments were given on occasion of Nikah as dower was based on entry to that effect in Nikahnama coupled with testimony of witnesses‑‑‑Plaintiff/petitioner could not point out as to which of the evidence was misread or what piece of evidence was overlooked by Courts below‑‑‑Judgments of Courts below not suffering from any misreading and non‑reading of evidence, could not be interfered with in Constitutional jurisdiction of High Court.

(c) 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'‑‑­Consideration for Khula‑‑‑Marriage was dissolved on sole ground of Khula' as no other ground for dissolution of marriage was available‑‑­Family Court, in circumstances was bound to determine terms and conditions for Khula' and in doing so no illegality was committed by the Family Court.

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

‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1913), Art. 199‑‑­Constitutional petition‑‑Suit for dissolution of marriage‑‑‑Recording of evidence by Reader of Family Court‑‑‑Petitioner raised objection before High Court that evidence in the case was not recorded by Family Court, but was recorded by its Reader‑‑‑Said objection having not been raised by petitioner before First Appellate Court, same could not be agitated in Constitutional jurisdiction of High Court‑‑‑Even otherwise Constitutional petition was not maintainable against concurrent finding of facts.

Mehr Muhammad Altaf Hussain for Petitioner

Aslam Tahirul Qadiri for Respondents.

Date of hearing: 24th April, 2002.

2002 C L C 1549

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. PARVEEN AKHTAR‑‑‑Petitioner

Versus

AZHAR ALI and 2 others‑‑‑Respondents

Writ Petition No. 1823 of 1991, heard on 5th October, 2001.

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

‑‑‑‑Ss. 39 & 42‑‑‑Court Fees Act (VII of 1870), S. 7(iv)(c), Sched. II, Art. 17(iii)‑‑‑Declaration and cancellation of document ‑‑‑Court‑fee‑‑­Where suit is to obtain simple declaratory relief, court‑fee payable in such suit is under Art. 17(iii) of the Sched. II to the Court Fees Act, 1870‑‑‑Not necessary by implication for the plaintiff in suit for declaration to ask for consequential relief as contemplated under S.39 of the Specific Relief Act, 1877‑‑‑Where the plaintiff has not asked for such consequential relief it cannot be held that he should have made a prayer for such a relief but if a suit is framed as one for declaration that certain document is void and is to be treated as one under S.39 of the Specific Relief Act, 1877, and partly under S.42 of the Specific Relief Act, 1877, in such a case the plaintiff is liable to pay ad valorem court‑fee under S.7(iv)(c) of the Court Fees Act, 1870.

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

‑‑‑‑Ss. 39 & 42‑‑‑Court‑Fees Act (VII, of 1870), S.7(iv)(c), Sched.11, Art. 17(ii)‑‑-Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Fixation of court‑fees‑‑‑Suit for declaration and cancellation of agreement to sell was filed by the plaintiff alleging the same to be void ab initio on the ground that it was not executed by her but was an act of fraud‑‑‑Defendant filed application under O. VII, R.11, C.P.C. for the rejection of plaint as the plaintiff failed to fix ad valorem court‑fee‑‑‑ Application was dismissed by the Trial Court but the Appellate Court allowed the same and directed the plaintiff to affix the court‑fee under S.7(iv)(c) of the Court Fees Act, 1870‑‑‑Validity‑‑‑Where the plaintiff had asked for declaration under S.42 and for cancellation of the document under S.39 of the Specific Relief Act, 1877, she was liable to pay ad valorem court‑fee under S.7(iv)(c) of the Court Fees Act, 1870‑‑­Appellate Court had, rightly exercised its jurisdiction vested in it under the law and directed the plaintiff to affix the requisite court‑fees.

Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965 Dacca 439 distinguished.

Abdul Harrild alias MD. Abdul Hamid v. Dr. Sadeque Ali Ahmad and others PLD 1969 Dacca 357; Mst. Bhagan through L.Rs. v. Mubar.ik Begum and others NLR 1984 Civil 59; Ghulam Hussain Shah v. Hidayatullah Khan PLD 1981 Azad J&K 55; Mst. Nasim Akhtar v. Muhammad Sabeel and others PLD 1991 Azad J&K 66 and Muhammad Afzal Khan v. Muhammad Hayat Khan and another 2000 MLD 1611 ref.

M. A. Aziz for Petitioner.

Ms. Roshan Ara Begum, Asstt. A.‑G. for Respondents.

Date of hearing: 5th October, 2001.

JUDGMENT

Through this writ petition the petitioner has assailed the order, dated 28‑1‑1991 passed by the Additional District Judge, Toba Tek Singh, praying that the same has been passed without lawful authority and of no legal effect.

1. Mst. Parveen Akhtar, petitioner herein, filed a suit for declaration that agreement to sell dated 12‑10‑1989 as well as receipt of the same date has been procured by the respondents through fraud, misrepresentation and on the pretext that a power of attorney is required from the petitioner to prosecute a pending suit in the Court of Civil Judge, Kamalia titled Wahid Ullah v. Raja Nasir and others. The suit was contested by respondent No. 1 by filing a written statement, and from the divergent pleadings of the parties issues were framed. The respondent filed an application under Order VII, rule 11, C.P.C. for amendment of para.7 of the plaint to show that the value of the suit for purposes of jurisdiction and court‑fee as Rs.3.lacs according to the value of the agreement to sell. The learned Civil Judge dismissed the application of the respondent vide order, dated 3‑12‑1990. In revision petition, the learned Additional District Judge; Toba Tek Singh (respondent No.3) accepted the same and allowed the application of the respondent under Order VII, rule 11, C.P.C. vide order, dated 28‑1‑1991 and determined the value of the suit for the purposes of jurisdiction and Court as Rs.3 lacs. This order of the learned Additional District Judge, dated 28‑1‑1991 has been assailed in this writ petition.

2. The learned counsel for the petitioner contends that the .issues have been framed in the suit from the divergent pleadings of the parties and without recording the evidence the learned Additional District Judge was not competent to pass the impugned order for determination of the value of the suit for purposes of court‑fee. Further contends that the suit filed by the petitioner was for declaration that the agreement has been obtained through fraud and misrepresentation, therefore, the suit was correctly valued at Rs.200.

3. Conversely, the learned Assistant Advocate‑General argued that the suit is not for declaration simplicitor but in consequence of that the document, i.e. agreement to sell, dated 12-10‑1989 and receipt have been prayed to be cancelled. In this view of the matter, she is of the opinion that the order of learned Additional District Judge is correct.

4. To my mind, a perusal of the plaint would show that the petitioner has filed suit under section 42 of the Special Relief Act (I of 1877) for declaration that the agreement to sell is fraudulent and also for cancellation of the same under section 39 of the said Act. In this view of the matter, the interpretation of section 7(iv)(c) and Article 17(iii) Schedule II of the Court Fees Act is involved. The suit for declaration that a certain document was void, ab initio on the ground that it was not executed by the plaintiff but by somebody else and the document has no effect on the right, title and interest of the plaintiff, is a suit to obtain simple declaratory relief and as such the court‑fee payable in the suit is under Article 17(iii) of the IInd Schedule to the Court Fees Act and not under section 7(iv)(c) of the Act. It is not necessary by implication for the plaintiff in a suit for declaration to ask for consequential relief as contemplated under section 39 of the Specific Relief Act and if the plaintiff has not asked for such a consequential relief he cannot be held that he should have made a prayer for such a relief. But if a suit is framed as one for declaration that certain document is void and is to be treated as one under section' 39 of the Specific Relief Act, 1877 and partly under that section and partly under section 42 of the Specific Relief Act, the plaintiff would be liable to pay ad valoram court‑fee under section 7(iv)(c) of the Court Fees Act.

5. Now I on the touch stone of the above expression of the two different provisions of the Court Fee Act, i.e. Article 1.7(ii) of the IInd Schedule and section 7(iv)(c) of the Court Fees Act (VII of 1870), it is to be clinched that the plaintiff has asked for declaration under section 42 and for cancellation of the document under section 39 of the Specific Relief Act (I of 1877), and therefore, was liable to pay ad valorem court-­fee under section 7(iv)(c) of the Act.

6. The prayer clause of the suit filed by the petitioners on 9‑7‑1990 reads as follows:‑‑

URDU TYPING 1552

In case reported as Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965 Dacca 439 it was held: --‑‑

“(a) A suit for a declaration that a certain document was void ab-initio on the ground that it was not executed by the plaintiff but by somebody else and that the document has not affected the right, title and interest of the plaintiff is a suit to obtain a simple declaratory relief, and, as such, the, court‑fee payable in the suit is under Article 17(iii) of the Second Schedule to the Court Fees Act and not under section 7(iv)(c) of that Act.”

The interpretation of the above two provisions i.e. section 7(iv) (c) of the Court Fees Act along-with provision of sections 42 and 39 of the Specific Relief Act (I of 1877) came for interpretation before a Division Bench of Dacca High Court in case reported as Abdul Hamid alias MD Abdul Hamid v. Dr. Sadeque Ali Ahmad and others PLD 1969 Dacca 357 and it was held: ‑‑

“(d) Court Fees Act.(VII of 1870), S.7(iv)(c)‑‑‑Suit for avoiding to which plaintiff was party on grounds of fraud, misrepresentation and undue influence‑‑‑A suit for declaration with consequential relief‑‑‑Ad valorem court‑fee, held; payable in circumstances.

A suit for avoiding documents to which the plaintiff was a party on grounds of fraud; misrepresentation and undue influence is a suit for declaration with consequential relief and in such view of the matter it was held that the trial Court was perfectly justified in directing the petitioner to put in ad valorem court‑fee."

In the above‑referred two judgments of the Dacca High Court, the distinction has been drawn in a suit for declaration simplicitor under section 42 of the Specific Relief Act and suit for declaration along-with cancellation of a document under sections 42 and 39 of the Specific Relief Act. The first judgment of Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965 Dacca 439 is distinguishable and is not applicable to the facts and circumstances of the case and judgment in case Abdul Hamid alias MD. Abdul Hamid v. Dr. Sadeque Ali Ahmad and others PLD 1969 Dacca.357 which is D.B. judgment of the Dacca High Court, is to be followed, and it is held that the petitioner was liable to pay ad valorem court‑fee on the plaint of the suit. The above‑referred judgment of Division Bench of the Dacca High Court has been followed in case reported as Mst. Bhagan through L.Rs. v. Mubarik Begum and there NLR 1984 Civil 59 and it was held that ad valorem court‑fee on suit for declaration and cancellation of sale‑deed, which is not void but void-able at option of the party whose consent was procured by fraud, was payable on such a suit.

The plaintiff has fixed Rs.200 for the purposes of court‑fee and jurisdiction in the plaint. In this view of the matter, it is argued that the impugned order is not warranted under the law. This contention/ argument has no force. It is not necessary for the court‑fee and jurisdictional value to be same except in cases covered by section 8 of the Suit Valuation Act (VII of 1887). See case of Ghulam Hussain Shah v. Hidayatullah Khan PLD 1981 Azad J&K 55. In case reported as Mgt. Nasim Akhtar v. Muhammad Sabeel and others PLD 1991 Azad J&K 66 while interpreting different provisions of the Court Fees Act. (VII of 1870) the Court has ruled: ‑‑

“Where plaintiff could not ask or main relief viz. possession without asking for a declaration, such suit would be one for declaration with consequential relief for possession‑‑‑Suit in such a case would be covered by provision of section 7(iv)(c) and not by section 7(v)(d), Court Fees Act, 1870‑‑‑Where, however, it was proved that without seeking declaration, plaintiff was entitled to seek relief of possession then suit would be covered by provision of section 7(v)(d), Court Fees Act, 1870‑‑‑Where from the nature of the suit consequential relief could be allowed only when plaintiff through declaration from competent Court had succeeded in removing any other obstacle then in such‑like cases declaration would be the legal necessity for obtaining the real relief from the Court.”

In a recent judgment reported as Muhammad Afzal Khan v. Muhammad Hayat Khan and another 2000 MLD 1611 (D.B.) the Court has finally settled the matter at rest by observing that, “where further relief would flow from declaration suit filed by plaintiff fell under section 7(iv)(c) of Court Fees Act, 1870 read with Schedule 11, Article 17(iii) of said Act.

For what has been discussed above, the order of the learned Additional District Judge, Toba Tek Singh, dated 28‑1‑1991 is legally IC correct. He exercised his jurisdiction vested in him under the law. This writ petition has no force and the same is dismissed.

Q.M.H./M.A.K./P‑65/L

Petition dismissed.

2002 C L C 1557

[Lahore]

Before Abdul Shakoor Paracha, J

RASOOL BAKHSH alias GHULAM RASOOL

and 3 others‑‑‑Petitioners

Versus

MEMBER (JUDICIAL‑11), BOARD OF REVENUE, PUNJAB, LAHORE and 3 others‑‑‑Respondents

Writ Petitions Nos. 15283 and 15284 of 2000, heard on 22nd October, 2001.

(a) Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑

‑‑‑‑Para. 25(3)(d)‑‑‑Pre‑emption‑‑‑Preferential right of tenant‑‑­Relationship of landlord arid tenant‑‑‑Principles‑‑‑First right of pre­emption in respect of the land comprising tenancy of tenant has been conferred under Para.25(3)(d) of the M.L.R. No. 115, and the same prescribes three attributes of tenant, that he is holding land; that he is holding the land under another person/landlord, and that he is liable to pay rent for the use and occupation of it to such person‑‑‑All such attributes when combined create legal relationship of landlord and tenant ‑‑‑Pre‑emptor, in order to succeed, is required to establish by unimpeachable evidence that he has been in possession of the suit land at the time of sale and has been paying rent to the vendors.

(b) Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑

‑‑‑‑Para. 25(3)(d)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional, petition ‑‑‑Pre‑emption suit‑‑‑Preferential right of tenant ‑‑­Pre‑emptor on the plea of being tenant in the suit land filed the ,suit before the Revenue Authorities‑‑‑Suit was decreed in favour of pre­emptor by the Trial Court and the judgment and decree was maintained up to Board of Revenue‑‑‑Contention of the vendee was that the pre­emptor was unauthorized occupant of the suit land‑‑‑Validity‑‑‑Where the pre‑emptor failed to produce evidence sufficient in quality and quantity to prove that he was occupying the pre‑empted land at the relevant time as tenant, judgment and decree passed in his favour was set aside by High Court as the same was without lawful authority and of no legal effect‑‑‑Suit filed by the pre‑emptor was dismissed in circumstances.

Khushi Muhammad v. Mst. Zakiya Mushtaq Ahmad and 7 others 1998 SCMR 253; Muhammad Sharif v. Member (Judicial‑II), Board of Revenue, Punjab, Lahore and others 1998 SCMR 488 and Sher Muhammad v. Ghulam and others 1989 SCMR 543 rel.

Ch. Muhammad Khan for Petitioners.

Ms. Roshan Ara Begum, Asstt. A.‑G. for Respondents.

Date of hearing: 22nd October, 2001.

JUDGMENT

I intend to dispose of this writ petition along-with Writ Petition No. 15284 of 2000 as common questions of law and facts are involved in both of them.

1. Through this Writ Petition (W. P. No. 15283 of 2000) the petitioners have assailed the orders., dated 13‑11‑1985 of A.C. (Collector) Ferozewala, Sheikhupura (respondent No. 3), dated 24‑I1‑1987 of Additional Commissioner, Lahore Division (Revenue) (respondent No.2) and order, dated 30‑5‑2000 of Member (Judicial‑1I), Board of Revenue, Lahore (respondent No. 1)

2. Writ Petition No.15283 of 2000

The disputed land, the subject‑matter of this petition was 8 Kanals bearing Khewat No.225, Khatuni No.224, Square No.24, Killa No.13(2‑4), Khatoni No. 582, Square No. 78, Killa No.5(5‑16) situated in village Hardo Ladheke, Tehsil Ferozewala, District Sheikhupura, which was pre‑empted by respondent No.4 Din Muhammad, out of land measuring 605 Kanals, 12 Marlas situated in the above‑stated Mauza purchased by petitioners Rasul Bakhsh etc., for consideration of Rs.2,20,000 from Messrs Nawab Zada Raziq Ali Khan, Nawabzada Abid Ali Khan sons of Nawab Arshid Ali Khan, and Mst Abdul Nisa Begum widow of Nawabzada Sajid Ali Khan.

1. Writ Petition No. 15284 of 2000

Subject‑matter of this writ petition is land measuring 26 Kanals, 19 Marlas, bearing Khewat No.225, Square No.24, Killa No.2/2 (1‑13) and 8(1‑6), Khatooni No.724, Square No.22, Killa No.7(8‑0), Square No.24; Killa Nos.9(8‑0) and 10(8‑0) situated in the abovementioned Mauza, which was pre‑empted by respondent No.4 Mst. Zaitoon daughter of Naul Khan, out of land measuring 605 Kanals, 12 Marlas situated in village Hardo, purchased by the petitioners Rasool Bakhsh etc. for consideration of Rs.2,20,000 from the above‑named persons.

1. The suit was filed in the Court of A. C., Ferozewala under para.25(3)(d) of Martial Law Regulation No. 115, which was resisted by the petitioners on the ground that the respondent was not a tenant within the meaning of para.25(3)(d) of M.L.R. 115.

2. From the divergent pleadings of the parties issues were framed by the Assistant Commissioner/Collector, Ferozewala. The suit was decreed on 13‑11‑1985 by the learned Collector on the ground that the respondent was a tenant at the relevant time within the meaning of the above provision of Martial Law Regulation, 1972. Appeal of the petitioners was dismissed on 24‑11‑1987 by the Additional Commissioner (Revenue) Lahore Division, and revision filed there against also met the same fate as it was dismissed by the Member (Judicial‑II), Board of Revenue vide his order, dated 30‑5‑2000. Hence this writ petition.

3. The Member, Board of Revenue while dismissing the revision petition observed:

"If we strictly interpret the law, the respondents might not fall in the strict sense of the definition as tenant but so far as pre­emption suit is concerned, I will treat them as tenant. I will determine their tenancy from Kharif, 1977 on the basis of their possession."

1. The learned counsel for the petitioners has argued that the respondent was not a tenant in the suit land within the meaning of para. 25(3)(d)of the M.L.R. No.115 and that the definition as envisaged in section 4(26) of the Land Revenue Act, 1967, which gives the definition of the tenant, has to be applied in this case because no definition of tenant has been given in para.25 of the Land Reforms Regulation, 1972.

2. The writ petition was admitted for regular hearing vide order, dated 25‑6‑2000 in presence of learned counsel of respondent No.4, namely Mr. Karamat Ali Butt, Advocate, who accepted notice on behalf of respondent No.4. In view of the above, it was ordered that no formal notice need be issued to the said respondent. Nobody entered appearance on behalf of the respondent in spite of the fact that name of the learned counsel for the respondent namely Mr. Karamat Ali Butt, Advocate has appeared in the cause list.

3. The only question for consideration by this Court is whether the respondent was a tenant at the relevant time in the suit property and, therefore, had superior right of pre‑emption being a tenant under para. 25(3)(d) of the M. L. R. No. 115. It is admitted position that there is no definition of the tenant given in para. 25 of the M.L.R. No. 115. The definition of the tenant as contemplated in section 4(26) of the Land Revenue Act, 1967 is as under: ‑‑

“(26) `tenant' means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent to that other person, and includes the predecessors and successors‑in‑interest of such person, but does not include:

(a) mortgagee of the rights of land ownership or.

(b) a person to whom a holding has been transferred, or an estate or holding has been let in from, under the provisions of this Act, for the recovery of an arrears of Land Revenue or of a sum recoverable as such an arrear.

(c) a person who takes from Government a land of unoccupied land for the purpose of sub‑letting it.. Similarly I tenancy means a parcel of land held by a tenant under one set of condition and this has been defined under section 4(27) of Land Revenue Act."

From the perusal of the record, it is clear that suit property in the column of ownership Central Government was shown, whereas in column of cultivation it was shown as Maqbooza Central Government, Din Muhammad Ghair Moroosi. The same was the position as regards to the land which is subject‑matter of the connected Writ Petition No. 1528‑1 of 2000, in which in ownership column it is entered as Central Government, and in the cultivation column the name of Naul Khan, (respondent No.4's father) has been entered as 'illegal occupant' in Square No.24, Killa No.2/2/1‑13, Rabi, 1978 measuring 13 Marlas as Khali, whereas 1 Kanal is Banjar Qadeem. Regarding other Killas i.e. 8, 9 and 10 Central Government has been shown as owner and in cultivation column it has been shown as Maqbooza Central Government, Naul Khan Batai Behissa Nisfi. Muhammad Hussain, Nawazish Ali 'Najaiz Qabiz'.

From the foregoing narration of facts, the circumstances of the case, the evidence on the record, this Court has to consider that whether the respondents were in occupation of the suit land as tenant at the time of sale and so possessed better pre‑emption right qua the petitioners. No doubt tie first right of pre‑emption in respect of the land comprising tenancy of a tenant was conferred under sub‑para. (3)(d) of para. 25 of the M.L.R. No. 115, but the above‑stated clause prescribes three attributes of tenant; firstly that he shall hold land; that he shall hold it under another person/landlord, and thirdly, that he is liable to pay rent A for the use and occupation of it to such a person. All these three attributes concur to create legal relationship of landlord and tenant. Seen from this angle, it can safely be said that the respondent in order to succeed was required to establish by unimpeachable evidence that he was in possession of the suit 'land at the time of sale and used to pay rent to the sellers. The learned Collector has relied on the statement of P.W.2 IA and P.W.3 Muhammad Sharif and Khushi Muhammad and Khasra Girdawari Exhs.P.2 and P.3. Muhammad Sharif, Patwari P .W.2, according to the Collector, has stated that in accordance with register Girdawari from Kharif Crop, 1975 to Rabi, 1978, Square No.22, Killa No.7/8‑0 in column of ownership Central Government has been shown, and Square No.24, Killa No.2/2/1‑13 in ownership column the entry is shown as Central Government and Kharif, 1976 in cultivation column Din Muhammad has been shown as unauthorized cultivator. Similarly Square No.78, Killa No.5/5‑16 up to Rabi, 1977 in cultivation column the same has been shown as Banjar Qadeem. Exhs.P.2 and P.3 show that Din Muhammad was unauthorized cultivator in 2 Kanals and 4 Marlas and remaining 5 Kanals and.16 Marlas was Banjar Qadeem. The Collector has misread the documents‑ Exlis.P.2, P.3, and D.I. It has been ruled by the Honourable Supreme Court in case reported as Khushi Muhammad v. Mst. Zakiya Mushtaq Ahmad and 7 others 1998 SCMR 253 and Muhammad Sharif v Member (Judicial-­II), Board of Revenue, Punjab, Lahore and others 1998 SCMR 488 that unauthorized cultivators do not fall within the definition of section 4(26) of the Land Revenue Act.

There is also abundant proof of the fact that certain land pre­empted by the respondent was Banjar Qadeem. In this view of the matter, the respondent could have not been considered as tenant within the above definition of the tenant. See case of Sher Muhammad v. Ghulam and others 1989 SCMR 543.

From the above analysis it is clear that no evidence sufficient in quality and quantity was led by the respondent in order to prove that he was occupying the pre‑empted land at the relevant time as tenant.

For what has been discussed above, this writ petition is allowed, I the orders, dated 13‑11‑1985 of respondent No.3, dated 24‑11‑1987 of respondent No.2 and order, dated 30‑5‑2000 of respondent No.1 are declared to have been passed without lawful authority and of no legal effect, which are set aside. In consequence of the same the suit filed by respondent No.4 shall stand dismissed with costs.

Q.M.H./M.A.K./R‑98/L

Petition allowed.

2002 C L C 1566

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs RUPALI POLYESTER LIMITED -----Petitioner

Versus

GOVERNMENT OF THE PUNJAB through

Secretary, Local Government and Rural

Development Department, Civil Secretariat, Lahore and 2 others‑‑‑Respondents

Writ Petitions Nos. 3267 of 1993, 13158 of 1994, 13877 of 1993, 15153 of 1994, 8614 of 1992, 1859 of 1996, 18624 of 1995, 18622 of 1995, 1857 of 1996, 16599 of 1995, 16598 of 1995, 16599 of 1995, heard on 23rd October, 2001.

(a) Punjab Zila Councils (Export Tax) Rules, 1990‑‑‑

‑‑‑‑R. 5 ‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition Maintainability‑‑‑Disputed question of fact‑‑‑Collection of goods exit by the Authorities‑‑‑Petitioners contended that the Authorities had wrongly collected the tax from them as their goods were either in transit or the same were imported from abroad ‑‑‑Validity‑‑­Controversy between the parties in the present case related to disputed question of fact‑‑‑High Court had no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction‑‑‑ Petition was not maintainable in circumstances.

Muhammad Younis Khan's case 1993 SCMR 618 ref.

(b) Punjab Zila Councils (Export Tax) Rules, 1990‑‑‑

‑‑‑‑R. 5‑‑‑Punjab Local Government Ordinance (VI of 1979), S.143‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Alternate remedy‑‑‑Recovery of goods exit tax‑‑‑Petitioners, instead of availing remedies available under relevant law, filed the Constitutional petition‑‑‑Validity‑‑‑Where the petitioners had alternative remedies under the provisions of Punjab Local Government Ordinance, 1979 and rules framed therein, Constitutional petitions were not maintainable.

Raja Mehmood's case 1994 SCMR 1484; Raja Ramzan's case 1994 MLD 930; KID. Abdul Waheed's case PLD 1978 Lah. 811; Ch. Muhammad Ismail's case PLD 1996 SC 246 and ICI Pakistan's case 1993 MLD 32 ref.

(c) Punjab Zila Councils (Export Tax) Rules, 1990‑‑‑

‑‑‑‑R. 5‑‑‑Punjab Local Government Ordinance (VI of 1979), S.137, Sched. II, item 7‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Recovery of goods exit tax by Local Councils‑‑­Petitioners were either importers of the goods from foreign countries or were manufacturing the same outside the limits of the Local Councils‑‑‑Grievance of the petitioners was that the Local Councils were not entitled to recover such tax from the petitioners‑‑‑Validity‑‑‑Courts have to protect interest of taxpayer as well as public exchequer notwithstanding follies or illogical and some time even casual attitude of the custodians of the public exchequer‑‑­Where the petitions had been pending adjudication before the High Court since 1993, the same were sent to the Provincial Government, and High Court directed the Government to pass appropriate orders strictly in accordance with law‑‑‑Constitutional petitions were disposed of accordingly.

Sunny Woollen Mills (Pvt.) Ltd. v. Government of the Punjab 1993 MLD 2170; Seth Nisar Ahmad v. Tasawar Hussain and others 1993 MLD 2316; United Business Lines, S. I. E. Gujranwala v. Government of Punjab and others PLD 1997 Lah, 456: Messrs Rupali Polyester Ltd. v. Government of the Punjab and others 1992 CLC 796; Multan Chemical Ltd. v. District Council, Lahore 1991 MLD 910; Sher Ali and others v. Bashir Ahmad and others 1994 MLD 2236; ICI Pakistan Ltd. v. Zila Council, Jhelum and others 1992 CLC 458; Messrs Mian Tyre and Rubber Co. Ltd. v. The Government of Punjab and others 1992 MLD 122; Zila Council, Jhelum v. ICI (Pvt.) Ltd. 1993 SCMR 454; Glaxo Laboratories Ltd. v. Union Council, Dulu Khurd and others 1991 CLC 354; Aijaz Ahmad and others v. District Council, Sukkur and others 1990 CLC 1367; Syed Sabir Shah and others v. Shah Muhammad .Khan PLD 1995 SC 66; Collector, Customs, Karachi v. New Electronic (Pvt.) Ltd. and others PLD 1994 SC 363 and Riffat Askari v. The State PLD 1997 Lah. 285 ref.

Mian Nisar Ahmad for Petitioners.

Malik Akhtar Hussain Awan, Addl. A.‑G., Ali Ahmad Awan and Malik Ghulam Rasool for Respondents.

Dates of hearing: 22nd and 23rd October, 2001.

JUDGMENT

I intend to decide the following writ petitions by one consolidated judgment having similar facts and law: --‑

(1) Writ Petition No.3267 of 1993, (2) Writ Petition No. 13158 of 1994; (3) Writ Petition No. 13877 of 1993, (4) Writ Petition NO. 15153 of 1994, (5) Writ Petition No. 8614 of 1992, (6) Writ Petition No. 1859 of 1996, (7) Writ Petition No. 18624 of 1995, (8) Writ Petition No. 18622 of 1995, (9) Writ Petition No.1857 of 1996, (10) Writ Petition No.16591 of 1995, (11) Writ Petition No.16598 of 1995 and (12) Writ Petition No. 16599 of 1995.

Writ Petitions Nos. l to 4 filed by the petitioners that respondent No.2 had no authority under the law to recollect and re‑impose export tax on the imported raw material of the petitioners which after clearance from the custom barrier at Dryport Mughalpura. Lahore was transported to the plant. They have prayed that respondent No.2 and its functionaries be directed to return amounts already illegally collected by them in the sum of Rs. 10.97,060 (for the period from 23‑9‑1992 to 17‑10‑1992), Rs.13,41,560 (for the period from 6‑6‑1994 to 12‑12‑1994), Rs.7,12,040 (for the period from 19‑4‑1993 to 19‑9‑1993) and Rs.8,34,805 (for the period from 1‑8‑1993 to 9‑10‑1994) respectively.

1. The writ petitions at serial Nos.5 and 6 filed by the petitioners with the prayer that action of respondent No.2 recovering export tax/goods exit tax upon produced by the petitioners be declared without lawful authority and respondents be directed to restrain from recovering the aforesaid taxes and tax already recovered from the petitioners be refunded to them.

2. The writ petitions at serial Nos.7 to 9 filed by the petitioners with the prayer that the respondents be restrained from charging/levying "Goods Exit Tax" upon the petitioners with reference to the 'number' of the items produced rather than "weight" thereof in disregard of Government's directive, dated 15‑10‑1992

3. The writ petitions at serial Nos. 10 to 12 filed by the petitioners with prayer that respondent No.2 may kindly be restrained from recovering export tax from the Goods produced by the petitioners through respondents Nos.5 and 6 and action of respondents for recovering of Export‑tax be declared without lawful authority.

4. Mian Nisar Ahmad, Senior Advocate counsel of the petitioners in writ petitions at Serial Nos. l to 4 submits that no exit tax can be charged on the goods imported from abroad. He further submits that even while in transit the goods, do not pass through the area falling within the jurisdiction of Zila Council at Lahore as the municipal limits of Lahore Municipal Corporation adjoins those of Zila Sheikhupura. He further urged that the petitioners filed Writ Petition No.9162 of 1992 which was disposed of on the statement of the learned counsel of the parties on 11‑3‑1991. The aforesaid order of this Court was not agitated by any of the parties before any higher forum. He further urged that. the respondents are lawful authority to recover the export tax on goods which are produced within local limits of Zila Council which export out‑side the limits; whereas in the present case, the petitioners imported goods from the abroad and after clearance from the custom barriers, remained in the transit from Mughalpura Dryport, Lahore till the goods were taken by importers to their manufacturing plants He summed up his arguments that action of the respondents is in violation of mandatory provision of Punjab Local Government Ordinance, 1979 and rules framed there-under. He further urged that action o1 the respondents is in violation of the law laid down by the Superior Courts. In support of his contention, he relied upon the following judgments:‑‑

Sunny Woollen Mills (Pvt.) Ltd. v Government of the Punjab 1993 M.L.D. 2170, Seth Nisar Ahmad v, Tassawar Hussain and others 1993 MLD 2316,United Business Lines S.I.E., Gujranwala v. Government of Punjab and others PLD 1997 Lah. 456, Messrs Rupali Polyester Ltd. v. Government of the Punjab and others 1992 CLC 796 and Multan Chemical Ltd v. District Council, Lahore 1991 MLD 910.

1. Mr. Shahzad Shaukat, Advocate appearing on behalf of the petitioners in writ petitions at serial Nos.5 to 9 submits that according to the petitioners, their factories are situated within limits of Town Committee Kot Abdul Malik. According to the rules, no goods exit tax leviable by the Zila Council Sheikhupura, can be recovered on the goods produced by them as the said goods cannot be‑ said to have originated within limits of Zila Council, Sheikhupura. He further submits that the respondents have no authority to recover tax in‑question .from the petitioners on the basis of "number" rather than weight of consignment which is totally illegal and without authority. He further urged that the action of the respondents is in violation of mandatory provisions of Punjab Local Ordinance, 1979 and rules framed there-under. In support of his contention, he relied upon the following judgments:‑‑

Sher Ali and others v. Basher Ahmad and others 1994 MLD 2236, ICI Pakistan Ltd. v. Zila Council, Jhelum and others 1992 CLC. 458 and Messrs Mian Tyre and Rubber Co, Ltd. v. The Government of Punjab and others 1992 MLD 122.

1. Mr. Abid Aziz, Advocate appearing on behalf of the petitioners in writ petitions at serial Nos.9 to 12 submits that since the place of manufacturing of the petitioners is not within territorial limits of District Council, therefore, levying and collection of export tax by the respondents from the petitioners is without legal

2. Malik Ghulam Rasool, Advocate for respondents in writ petitions at serial Nos. i to 4 submits that the petitioners did not attach a single receipt qua the tax recovered from them by Zila Council or of Zila Council. He further submits that the petitioners did not attach a single receipt to show that the petitioners had taken goods in‑question to their manufacturing plants within prescribed period i.e. 24 hours. He further submits that the petitioners tiled these writ petitions at belated stage without approaching the authorities under the law within prescribed period. He further submits that the petitioners want resolution of disputed question of facts through these Constitutional petitions which cannot be resolved without recording the evidence and this Court generally cannot record evidence while exercising powers under Article 199 of the Constitution. He further submits that the petitioners have more than one alternative remedies under the provision of Punjab Local Government Ordinance, 1979 and rules framed there‑under. He further submits that definition of Zila Council was amended through Punjab Local Government (IV Amendment) Ordinance, 1996 which comes into force on 4‑2‑1996 w.e.f. 1‑7‑1996 which extended meaning of Zila Council to the extent that for purposes of tax on export of goods and animals, the Zila Council including its urban area.

3. Mr. Ali Ahmad Awan, Advocate. counsel for respondents 'it, writ petitions at Serial Nos.5 to 12 submits that Zila Council has lawful authority to recover the tax in question from the petitioners under the provisions of Punjab Local Government Ordinance, 1979 and rules framed there-under. He further submits that the petitioners relied upon the judgment of Zila Council, Jhelum which was set aside by the Honourable Supreme Court of Pakistan in case of Zila Council Jhelum v. ICI (Pvt.) Ltd. 1993 SCMR 454. He also adopted the arguments of Malik Ghulam Rasool, Advocate counsel for the respondents.

4. Malik Akhtar Hussain Awan, learned Additional Advocate ­General adopted the arguments of the learned counsel of the parties.

5. Learned counsel for the petitioners in rebuttal submit that since the respondents have no authority under the law to recover the tax from the petitioners, therefore, the petitioners have no efficacious remedies under the provisions of Punjab Local Government Ordinance. 1979 and rules framed thereunder. In support of their contention, they relied a on the following judgments: ‑‑

United Business Lines, S.I.E. v. Government of Punjab and others PLD 1997 Lah. 456, Glaxo Laboratories Ltd. v. Union Council, Dulu Khurd and others 1991 CLC 354 and Aijaz Ahmad and others v. District Council, Sukkur and others 1990 CLC 1367.

1. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

2. In case the contentions of the learned counsel of the parties are put in juxtaposition, then controversy between the parties comes in the area of disputed question of facts. It is settled principle of law that this Court has no jurisdiction to resolve the disputed question of facts in Constitutional jurisdiction, as per principle laid down by the Honourable Supreme Court in Muhammad Younis Khan's case 1993 SCMR 618. It is also admitted fact that the petitioners have alternative remedies under the provisions of Punjab Local Government Ordinance, 1979 and rules framed therein. In this view of the matter, the writ petitions are not maintainable. In arriving to this conclusion, I am fortified by the following judgments: ‑‑

In Raja Mehmood's case 1994 S.CMR 1484, in Raja Ramzan's case 1994 MLD 930, in Kh. Abdul Waheed's case PLD 1978 Lah, 811, in Ch. Muhammad Ismail's case PLD 1996 SC 246 and in ICI Pakistan's case 1993 MLD 32.

The aforesaid preposition of law was considered by my learned brother the then Mr. Ehsan‑ul‑Haq Chaudhry, J. in Writ Petition No.4174 of 1998 and laid down the following principle. "There is recent tendency to file Constitution petition without exhausting remedies under the statute. This recent trend is dangerous. The Honourable Supreme Court clearly held in the case reported as Syed Sabir Shah and others v. Shah Muhammad Khan PLD 1995 SC 66, Collector Customs Karachi v. New Electronic (Pvt.) Ltd. and others PLD 1994 SC 363 and Riffat Askari v The State PLD 1997 Lah. 285. In this view of the matter, the writ petitions are not maintainable. As it is not against any principle of the Courts of this country to protect interest of taxpayers as well as public Exchequer notwithstanding follies or in logical and some time even casual attitude of the custodians of the public exchequer.

1. Keeping in view of above said principle, the writ petitions are pending adjudication before this Court since 1993. In this view of the matter, let a copy of writ petitions be sent to the Secretary Local Government and Rural Development Department, Civil Secretariat, Lahore, who is directed either to look into the matter personally and pass appropriate order strictly in accordance with law preferably within three months after receiving the order of this Court after. providing proper hearing to all the concerned, or to constitute a High Power Committee to proceed in this matter, who is also directed to look into the matter and pass appropriate order strictly in accordance with law. Within prescribed time.

2. The petitioners are directed to appear before respondent No. 1 on 2‑11‑2001, who is directed to proceed with the matter keeping in view the aforesaid direction strictly in accordance with law. He is further directed to submit his report to the Deputy Registrar (Judicial) of this Court within stipulated period i.e. 2‑2‑2002.

With these observations, the writ petitions are disposed of.

Q.M.H./M.A.K./R-99/L

Order accordingly.

2002 C L C 1578

[Lahore]

Before Ch. Ijaz Ahmad

and Mian Saqib Nisar, JJ

SHAUKAT ALI and 3 others‑‑‑Appellants

Versus

JAVEED QURESHI and 5 others‑‑‑Respondents

Regular First Appeal No.405 of 1995, heard on 29th October, 2001.

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

‑‑‑‑S. 12‑‑‑Registration Act (XVI of 1908), Ss.17 & 52‑‑‑Specific performance of agreement to sell‑‑‑Failure of defendant (vendee) to appear before Sub‑Registrar‑‑‑Proof‑‑‑Plaintiff asserted that the defendant failed to appear before the Sub‑Registrar for execution of registered sale‑deed in his favour‑‑‑Plaintiff, in proof of his assertion, relied on an application presented to the Sub‑Registrar wherein the defendant was marked absent and the application was returned to the plaintiff‑‑‑Validity‑‑‑Sub‑Registrar,' under the law could only register the instrument of sale. if the same was duly presented before him by the executor‑‑‑Such application did not in any way prove the case of the plaintiff about his readiness and willingness to perform his part of agreement.

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

‑‑‑‑S. 12.‑‑‑Specific performance of agreement to sell ‑‑‑ Proof‑‑‑ ‑Evidence of friends and relatives‑‑‑Evidentiary value‑‑‑In presence of documentary evidence produced by the defendants to establish that the plaintiff was not ready rather was unwilling in making payment of balance consideration amount, the evidence of friends or closely related persons of the plaintiff could not be relied upon.

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

‑‑‑‑S. 12‑‑‑Specific performance of agreement to sell‑‑‑ Extension of time for performance of the agreement‑‑‑Proof‑‑‑Where no endorsement of extension of time was made on the agreement, High Court declined to accept the plea of extension of time for performance of the agreement.

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

‑‑‑‑S. 12‑‑‑Specific performance of agreement to sell‑‑‑Failure in performance of agreement to sell‑‑‑Notices were issued by the vendor to the vendee for payment of the balance consideration of amount and to complete the agreement ‑‑‑Vendee did not respond to the notices and adduced oral evidence to prove that he was willing to perform the agreement ‑‑‑Validity‑‑‑Vendee was the one who failed to perform his part of agreement by not making the payment of balance consideration amount to the vendor as stipulated‑‑‑Oral evidence adduced by the vendee was cogently displaced and belied by the notices of the vendor which were never responded by the vendee and thus in order to make up the deficiency, the oral testimonies were fabricated‑‑‑Where the vendee by his own act and conduct was not ready and willing to perform his part of agreement, the discretionary relief for enforcement of the agreement was not available to him‑‑‑Judgment and decree passed by the Trial Court in favour of the vendee was set aside and the suit filed by the vendee was dismissed.

Zafar Iqbal Awan Malik for Appellants.

Tariq Rasheed for Respondents.

Date of hearing: 29th October, 2001.

JUDGMENT

MIAN SAQIB NISAR, J.‑‑‑ Suit for specific performance filed by the respondents side was decreed by the learned trial Court vide impugned judgment and decree, dated 1‑11‑1995, hence this appeal.

1. Briefly stated the facts of the case are, that the appellants vide agreement, dated 24‑9‑1989, agreed to sell the disputed house/premises to the respondents predecessor‑in‑interest namely Muhammad Nazar Qureshi for total consideration of Rs.4,70,000, out of which, a sum of Rs.1,00,000 was paid at the time of execution of the agreement; whereas the balance amount was to be paid by the purchaser by or before 25‑1‑1990, on which date, the appellants were obliged to effect the sale in favour of the purchaser. It is the case of the plaintiff/purchaser that he went to the office of the Sub‑Registrar on 25‑1‑1990, when the appellant did not turn up and accordingly, he was marked presence by the Sub-?Registrar, Thereafter, he served upon the appellants/defendants with a telegram and also sent legal notice seeking specific performance, but without any success. Besides, the plaintiffs/respondents on different occasions, visited the appellants and asked for the completion of the sale, but on each occasion, they have been delaying the matter and finally refused, when the present suit was filed on 8‑2‑1992.

2. The appellants/defendants filed their written statement. Though they admitted the execution of the agreement to sell and also receipt of the part consideration amounting to Rs.1,00,000, but took up the defence that the plaintiff did not pay the balance amount of Rs.3,70.000 by the target date. The appellants/defendants served upon the plaintiff/ respondent with the notice, dated 23‑1‑1990, requiring him to finalize the deal by or before 25‑1‑1990 by making the payment of balance consideration amount. This was not done. Thereafter, legal notice was issued to the plaintiff/respondent on. 7‑3‑1990 and he was required to make the balance payment by 17-3‑1990 the plaintiff did not make the payment, therefore, in term of the agreement, said agreement of sale, has been rescinded and thus, there is no valid agreement for enforcement. In the light of pleadings of the parties, the learned Civil Judge was pleased to frame the following issues: ‑‑

(1) Whether the suit is not maintainable? OPD

(2) Whether the plaintiff is estopped by his act and conduct to file the suit? OPD

(3) Whether the plaintiff has no cause of action? OPD

(4) Whether the plaintiff is entitled to decree for specific performance of contract, if so on what terms? OPD

(5) Whether the defendants are entitled to special costs under section 35‑A, C,P.C.? OPD

(6) Relief.

1. The plaintiff/respondent in order to prove his case, examined P.W.1, who stated that he along-with the plaintiff/respondent had been visiting the appellants/defendants on different occasions, but they delayed the matter on one pretext or the other. P. W.2 has also made the statement to 'the same effect. P. W.3 is the plaintiff himself, who has deposed in line the contents of his plaint. Exh. P.1 is the agreement to sell. Exh.P.2 is the receipt envisaging the payment of Rs.1,00,000. Exh.P.3 is the receipt of some telegram, dated 25‑11‑(without year), which is alleged to have been given by the respondent to the appellants Exh.P.4 is the envelope bearing an endorsement of the postal department dated, 7‑2‑1990, whereby the respondent claims that a notice was served by the appellants. Exh.P.5 is the postal receipt, as per whereof, some letter/notice was served to the appellants and their counsel by the respondent and his counsel. Exh.P.6 is the Jamabandi for the year 1988‑89. Exh.P.7 is the application, dated 25‑1‑1990, which according to the respondent/plaintiff was submitted to the Sub‑Registrar, who made an endorsement on the application, marking the presence of the respondent and the same was returned to him. The appellants also examined three witnesses to prove that the respondent/plaintiff was in fact responsible for not getting the sale finalized, as he was not possessed with the requisite funds. Moreover, EXh. D.I is the notice, dated 23‑1‑1990 issued by Ch. Nawazish Ali, Advocate to the respondent requiring him to finalize the transaction by making the payment by 25‑1‑1990. Exh.D.2 is a notice dated, 7‑3‑1990 through which, same Advocate asked the respondent to be present at the office of the Sub‑Registrar on 17‑3‑1990, so that the sale can be concluded. Exh.D.3, Exh.D.4.and Exh.D.5, are the receipts of postal service.

2. The learned Civil Judge by giving findings on Issue No. 5, came to the conclusion that the respondent/plaintiff was ready and willing to perform his part of the agreement. He was present in the office of the Sub‑Registrar on 25‑ 1‑1990 for making the payment of balance consideration and seek the execution and finalization of the sale‑deed but the appellants did not turn up and, therefore, it was held, that because the agreement to sell, and the payment of consideration amount of Rs.1,00,000 has been admitted by the appellants/defendants thus, the respondent is entitled to the decree.

3. Learned counsel for the appellants has contended that the certified copy of the telegram alleged to have been sent by the respondent has not been produced on the record; likewise, no notice was tendered in evidence to prove that the respondent ever required the appellants to finalize the transaction as alleged in the plaint; the learned Civil Judge has mainly relied upon Exh.P.7 the application of the respondent, submitted to the Sub‑Registrar, who appeared as P.W.4 and deposed that this application was moved before him and‑ was returned, but the application is not a certified copy of the official record and once this application was returned to the respondent, it cannot prove through the statement of the said witness. It is also submitted that under the law, there was no requirement for the respondent to have moved any application to the Sub‑Registrar thus, no reliance can be placed upon Exh.P.7 to hold that the respondent was ready and willing to perform his part of the agreement. Contrarily, the appellants have placed on record the documentary evidence such as EXh. D.I the notice, dated 23‑1‑1990 issued by the counsel for the appellants requiring the respondent to finalize the transaction by making the payment of balance consideration amount. Exh.D.2 is the notice, dated 7‑3‑1990 by same counsel, when the appellants again asked the respondent to pay the balance consideration amount by 17‑3‑1990, otherwise, agreement shall stand cancelled, still the respondent did not make the payment and consequently, because of his unwillingness and being not ready to finalize the transaction, he was disentitled to any discretionary relief.

4. We have heard the learned counsel, for the parties. In the plaint itself, the respondent/plaintiff has admitted the notice, dated 23‑1‑1990 Exh.D.1, notice, dated 7‑3‑1990 Exh.D.2 issued by the appellants. Both these notices clearly envisage that the appellants had been asking the respondent/plaintiff to pay the balance amount of consideration and to get the sale‑deed executed, but these notices were never responded by the respondent. The respondent has failed to show if, he ever issued any notice to the appellants for the purpose of getting the sale‑deed effected in his favour. The telegram or the notice allegedly .issued by the respondent has not been proved on the record. Even if considering that such original documents were in possession of the appellants, the respondent did not serve upon the appellants with any notice for the production of these documents nor ever sought the permission of the Court to lead secondary evidence. The learned trial Court has mainly relied upon Exh.P.7 i.e. the application allegedly submitted by the respondent/ plaintiff to the Sub‑Registrar for making his presence and the endorsement made by the Sub‑Registrar thereupon Suffice it to say that this application was not received by the Sub‑Registrar and it was not made part of the official record. The same was returned to the respondent and it is not clear from such application as to point of time, when this application was submitted and returned to the respondent. Even otherwise, under the law, there was no requirement for the .respondent to move such application to the Sub‑Registrar and the Sub-?Registrar could entertain the same. As per law, the Sub‑Registrar could only register the instrument. of sale if, it was duly presented before him by the executor, therefore, the basis of the respondent's case that he applied to the Sub‑Registrar and the application was returned to him, does not in any way, prove his case of ready and willingness to perform his part of the agreement, particularly, when the respondent has not responded to the appellants qua the notices issued to him by their counsel nor the respondent has been able to establish that he ever through writing, had asked the appellants to perform their part of the agreement by executing the sale‑deed. The notice/telegram allegedly issued by the respondent, are conspicuously missing from the record. The envelope, which according to the respondent contained a notice, but was returned by the postal department because the appellants' address could not be ascertained, though has been produced in original, but the notice contained in this envelope is again missing; as mentioned above, even, secondary evidence has not been led by the respondent. Above all, admittedly, the agreement to sell stipulated 25‑1‑1990 as date for the finalization of the transaction, but the present suit was filed on 8‑2‑1992. There is no significant documentary material available on the record that during this period, the respondent ever asked the appellants to effect the sale. The oral evidence led by the respondent such‑statement of P.W.1 and P.W.2 clearly shows that these witnesses are either friend or closely known to the respondent/plaintiff and their deposition cannot be safely relied upon in the presence of the documentary evidence produced by the appellants to establish that that the respondent was not ready rather unwilling in making the payment of balance' consideration amount. It may be pertinent to state here that, if the parties genuinely intended to further enlarge the period of agreement, they could easily and safely had made an endorsement on the agreement of the extension of time, but there is no extension of time in writing ever agreed upon between the parties. Moreover, the learned trial Court has not bothered to refer the documentary evidence of the appellants such as Exh. D.1, Exh. D.2. Thus, the trial Court had fallen in sheer error of non‑reading of evidence on the record.

In the light of above, we find that in fact, it is the respondent, who has failed to perform his part of the agreement by not making the payment of balance consideration amount to the appellants as stipulated and the present suit was filed after delay of about two years, for which, there is no valid explanation given or proved by the respondent. The oral evidence adduced by the respondent is cogently displaced and belied by the notices of the appellants, which as stated above, were never responded by the respondent, and thus in order to make up the deficiency, the oral testimonies were fabricated. Therefore, we are constrained to hold that as the respondent by his own act and conduct, was not ready and willing to perform his part of the agreement, therefore, discretionary relief for enforcement of the agreement, was not available to him. Consequently, by allowing this appeal, the impugned judgment and decree of the trial Court is set aside with the result that the suit of the respondent is dismissed.

Q.M,H./M.A.KJS‑335/L????????

Appeal allowed.

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2002 C L C 1606

[Lahore]

Before Syed Jamshed Ali and Syed Zahid Hussain, JJ

CHIRAGH‑‑‑Appellant

Versus

MEMBER, BOARD OF REVENUE (COLONIES), PUNJAB, LAHORE and 3 others‑‑‑Respondents

Intra‑Court Appeal No.209 of 2002, decided on 14th March, 2002.

Law Reforms Ordinance (XII of 1972)‑‑‑

‑‑‑‑S. 3(2), proviso‑‑‑West Pakistan Board of Revenue Act (XI of 1957), S. R‑‑‑Intra‑Court Appeal‑‑‑Maintainability‑‑‑Expression 'original order' as mentioned in S.312) of Law Reforms Ordinance, 1972‑‑‑Meaning, import and scope‑‑‑Power of review‑‑‑Extent‑‑‑Proprietary rights were declined to the appellant by the Deputy Commissioner‑‑‑Appeal against the order was dismissed by the Commissioner but the Board of Revenue allowed the revision filed by the appellant and the orders passed by the Authorities below were set aside‑‑‑Board of Revenue. in exercise of review jurisdiction under S.8 of the West Pakistan Board of Revenue Act, 1957, recalled the order passed in revision‑‑‑Order passed in review petition was passed on the application tiled beyond the period prescribed in S.8 of the West Pakistan Board of Revenue Act, 1957, and the same was assailed before High Court in Constitutional jurisdiction by the appellant‑‑‑Single Judge of High Court declined to interfere with the, order passed in review resultantly the petition was dismissed‑‑‑ Ple, raised by the appellant was that as the order passed in review was the original order, therefore, proviso to S.3(2) of the Law Reform Ordinance, 1972, was not applicable‑‑‑Validity‑‑‑Application of the proviso to S.3(2) of the Law Reforms Ordinance, 1972 was sought to be avoided by assuming that the order passed by the Board of Revenue, it review jurisdiction was the 'original order' out of which the Constitutional petition had arisen‑‑‑Order passed by the Deputy Commissioner had been described as one refusing to grant proprietary rights to the appellant the order passed on the revision application and the same was appeal-able ‑‑‑Where the appeal was filed before the Commissioner by the appellant and the same was dismissed,. the order passed by the Deputy Commissioner had to be treated as 'original order' for determining the competency of the Intra‑Court Appeal which was barred by proviso to S.3(2) of the Law Reforms Ordinance, 1972‑‑‑Intra­Court Appeal was dismissed in limine.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 eel.

Qazi Misbah‑ul‑Hassan for Appellant.

ORDER

Order, dated 20‑2‑2002, passed by the learned Single Judge dismissing the writ petition of the appellant, has been assailed in this appeal.

1. Land measuring 108 Kanals, was leased out in favour of the appellant for temporary cultivation for 5 years from Rabi 1979 to Kharif 1984. He applied for the grant of proprietary rights but his application was refused vide order, dated 18‑1‑1.984 of the learned Collector. He filed an appeal before the learned Commissioner which was dismissed vide order dated 5‑10‑1986. However, on a miscellaneous application, which was treated as .an appeal by the learned Member, Board of Revenue, he restored the lease of the appellant till 1995 vide order, dated 30‑9‑1993 with the observation that the appellant would be at liberty to apply for, the proprietary rights of the land in dispute if and when a new scheme is invoked. Meanwhile, the land in dispute had been allotted for temporary cultivation to Khan, respondent No.4 herein. He filed an application before the learned Member (Colonies). Board of Revenue for review of order, dated 30‑9‑1993 which was allowed vide order, dated 4‑10‑1995 on the ground that the land has been in possession of Khan, respondent No.4, and that the lease of the appellant had been cancelled in 1984. The said order was assailed in the Constitution petition which has been dismissed by the learned Single Judge.

2. Learned counsel for the appellant contends that against the order, dated 30‑9‑1993, the review petition, filed by the respondent, No.4. before the learned Member (Colonies), Board of Revenue. Punjab was barred by time and, therefore, the learned Member, Board of Revenue had no jurisdiction to recall the order, dated 30‑9‑1993. It is next contended that the assumption to the order of the learned Member. Board of Revenue that the lease of the appellant was cancelled, is against facts. He also contended that' lease of respondent No.4 was up to Rabi 1993 and. thereafter a Superdar was appointed and, therefore, the finding in the order, dated 4‑10‑1995 that respondent No.4 was in possession of the land in dispute was also against the record.

3. We have considered the submissions made by the learned counsel for the appellant. When confronted as to the maintainability of this appeal, he contended that the order, dated 4‑10‑1995 was passed in exercise of review jurisdiction and against the said order no appeal or revision was maintainable. Application of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 is sought to be avoided by assuming that order dated 4‑10‑1995 passed by the learned Member, Board of Revenue, was the "original order". In fact order, dated 8‑1‑1984 was the "original order" out of which, the writ petition arose. In the order dated 30‑9‑1993, the order dated 18‑1‑1984 has been described as one refusing to grant proprietary rights to the appellant, while in the order. dated 4‑10‑1995, it has been noted that it was an order cancelling the lease of the appellant. The orders dated 18‑I‑1984 and 5‑10‑1986 have not been placed on record of this appeal. However, irrespective of the fact whether the order dated 18‑1‑1984 directed cancellation of the lease of the appellant, or it refused to grant proprietary rights to him, it was appealable. An appeal was filed before the learned Commissioner by the appellant which was dismissed on 5‑10‑1986. Therefore the order dated 18‑1‑1984 has to be treated as "original order" for determining the competency of this Intra‑Court Appeal. It is, therefore, barred by proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972. In this view, we are fortified by the judgment of the Honourable Supreme Court in Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344.

4. For what has been stated above, this appeal is dismissed in limine.

Q.M.H./M.A.K./C‑164/L

Appeal dismissed.

2002 C L C 1642

[Lahore]

Bore Ch. Ijaz Ahmad and

Mian Saqib Nisar, JJ

AMEER‑UR‑REHMAN KHAN

and 6 others‑‑‑Appellants

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman and 3 others ‑‑‑ Respondents

Intra‑Court Appeal No.656 in Writ Petition No. 1231 of 2001, decided on 1st November, 2001.

(a) Federal Public Service Commission Ordinance (XLV of 1977)‑‑‑

‑‑‑Ss 7‑A & 10‑‑‑Law Reforms Ordinance (XII of 1972), S.3(2)‑‑‑Intra­-Court Appeal‑‑‑Maintainability‑‑‑Objection was raised to maintainability ‑of appeal on the ground that the appellant could maintain a representation against decision of Federal Public Service Commission ‑‑‑Validity‑‑‑Appellant had assailed rules framed by Federal Public Service Commission in terms of Ss.7‑A & 10 of the Federal Public Service Commission Ordinance, 1977‑‑‑Such rules could not be deemed to be a decision within the purview of the provision of the Federal Public Service Commission Ordinance, 1977, conferring upon an aggrieved person a right of representation or review ‑‑‑Intra‑Court Appeal was maintainable in circumstances.

(b) Law Reforms Ordinance (XII of 1972)‑‑‑

‑‑-‑S. 3‑‑‑Competitive Examination Rules, 2001, R.8(vi)‑‑‑Intra‑Court Appeal Competitive examination‑‑‑Age limit, reduction of‑‑‑Vested right‑‑‑Candidate assailed the act of reduction in upper age limit on the ground that in the previous examination when he appeared, the upper age limit for Government employees was 35 years which was reduced to 30 years, thus he was debarred from taking another chance‑‑‑Validity‑‑‑By virtue of having once participated in examination, no right was created in favour of a candidate that he would essentially be given further chances o f clearing the examination and that the maximum age limit could not be reduced under the rules‑‑‑For each years, separate and independent rules were framed prescribing the age limit and such rules were replaced by the subsequent year rules‑‑‑Rules for the year 2000, or previous year under which the candidate appeared for the fiat time would not be germane for the purpose of enabling him to participate in the future examination to complete three chances‑‑‑Where the rules framed for the year, 2001, were not ultra vires of any law the High Court declined to interfere with the judgment passed by the Single Judge in Chambers‑‑‑ Intra‑Court Appeal was dismissed in circumstances.

Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 and 1999 SCMR 1072 ref.

(c) Federal Public Service Commission Ordinance (XL of 1977)‑‑‑

‑‑‑‑Ss. 7 & 10‑‑‑Competitive Examination Rules, 2001. R.8(vi)‑‑‑Rules framed for competitive examination were executive orders‑‑‑Nature‑‑‑Where the rules have been framed under Ss.7 & 10 of Federal _ Public Service Commission Ordinance, 1977, and these are in exercise of delegated authority of Legislature, as such the same cannot be treated as executive order of the Federal Public Service Commission.

A. K. Dogar for Appellants.

Sher Zaman Khan, Dy. A.‑G. for Respondents.

ORDER

Through the Writ Petition No. 12351 of 2001, the appellants impugned the Notification No.F.2/1/2001‑CSS‑III, issued by the Federal Public Service Commission, reducing the age of the candidates desiring to participate in the CSS competitive examination for the year 2001 from the earlier age limit prescribed for the examination held in the year, 2000 and before. The case of the appellants is that the appellants Nos. l to 3 are functioning as employees of Provincial and Federal Government, whereas other appellants are not employed anywhere. According to the previous Rules, the appellants Nos.1 to 3 were entitled to appear in the CSS Examination up to 35 years of age, while in the case of other candidates, the maximum age limit was 30 years, but by virtue of the impugned notification, the age has been reduced for the Government employees to 30 and for the others to 28. Thus for the next examination, which is to be held in 2001, the present appellants have been rendered ineligible and they have lost their right to appear in the coming examination because of the reduction in the maximum age limit. The appellants asserted that as they had earlier appeared in the CSS Examination and at the, relevant time, as per rule 8(vi) had three chances to clear the above examination, thus by reducing the age, the appellants have been denied such chances and this is in breach of their vested right.

1. This writ petition has been dismissed by the learned single Judge in chamber vide impugned judgment, dated 4‑7‑2001, holding that the rules on the basis of which, the appellants primarily claim their right of three chances are the rules applicable only for the year 2000. These rules do not provide that future .competitive examination would also lie held under the aforesaid rules. Merely by appearing in the examination 2000 or 'before, no vested right in favour of the appellants to appear in the future examination according to the previous rules had been created. The learned Judge also held that the appellants have failed to demonstrate that they have vested right or even have a , right of appearing in the competitive examination up-till a particular age, therefore, it was found that the appellants are not the aggrieved persons and could not maintain the writ petition, which was dismissed.

2. Learned counsel for the appellants has reiterated the. same arguments and has submitted that according to the rules for the year 2000 and before under which the appellants appeared for the first time, the upper age limit for the participants was 30 and 35 years, respectively thus according to rule 8(vi), a vested right had been created in their favour to clear such examination in three attempts. .By relying upon Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223, it is argued that for the purpose of maintaining a writ petition, it is not necessary that a right must be in strict juristic sense, but it is sufficient, if the petitioner discloses a personal interest in the performance of the legal duty, which has not been performed in the manner required by the law. Further by drawing support from 1999 SCMR 1072, it is submitted that the beneficiary of an executive order acquires a vested right and such right cannot be superseded by a subsequent executive order, though so can be done through a legislative measured, which is conspicuously missing in the present case.

3. The learned Dy. A.‑G. appearing on behalf of the Commission at the very. outset has objected to the maintainability of this appeal, based upon the amendment made in section 7 of the Federal Public Service Commission Ordinance, 1977 acid submitted that the appellants could maintain a representation against the decision of the FPSC within 15 days of the decision impugned and such decision was further subject to a review, therefore, in view of section 3(2) of the Law Reforms Ordinance, where a right of review is available, I.C.A. is incompetent.

4. We have considered this objection and find no merit, for the reasons that it is the decision in individual cases, where the right of representation and review has been provided, but where the rules have been framed in terms of sections 7‑A and 10 of the Federal Public Service Commission Ordinance, 1977 (XLV of 1977), such rules cannot be deemed to be a "decision" within the purview of the aforementioned section conferring upon an aggrieved person a right of representation or review, therefore, we hold that the present appeal is maintainable and is not hit by the Law Reforms Order, 1972.

5. Coming back to the merits of the case, we have heard the learned counsel for the parties and find no force in the submissions made by the learned counsel for the appellants, because admittedly, for each year, specific rules are framed for the conduct of examinations to be held for that year under Ordinance XLV of 1977. Eligibility/qualifications of the candidates for such examination are defined and determined. The rules are confined to the year for which those are framed, and have no relevance for the subsequent year. Thus neither the provisions of rule 8(vi) of the previous rules have any application for the examinations to be conducted for the year 2001 nor in any manner creates a vested right in favour of the candidates to avail three chances of clearing the CSS in the future examinations. Rule 8(vi) mentioned above, rather places a limitation upon a candidate; who within the prescribed qualification of age for each year can only attempt thrice. For example, if a candidate had appeared for the first time in the year 1998, but failed to clear the examination and at the relevant time, he was of the age‑of 22 years, subject to the maximum age limit prescribed in the rums for the next year, can avail the remaining two chances. But by virtue of having once participated in the examination, no right is created in favour of a candidate that he would essentially be given further chances of clearing the examination, and that the maximum age limit cannot be reduced under the rules.

6. As mentioned above, for each year, separate and independent rules are framed prescribing the age limit and such rules are replaced by the subsequent year rules, therefore, the rules for the year 2000 or previous, under which the appellants appeared for the first time would not be germane for the purpose of enabling them to participate in the future examination to complete three chances. The learned counsel for the appellants has not been able to show, if the rules framed for the year 2001 are ultra vires of any law.

7. As regards the argument that the executive order, which creates a vested right in favour of a person, cannot be taken away by another executive order, suffice it to say that the impugned rules have been C framed under sections 7 and 10 of the FPSC Ordinance, and these are in the exercise of delegated Authority of the Legislature, resultantly those cannot be termed as the executive order of the respondents.

In the light of above we do not find any substance in this Intra-­Court Appeal, calling for interference in the impugned order of the D learned Single Judge in Chambers, therefore, the same is hereby dismissed.

Q. M. H. /M. A. K./A‑360/L

Appeal dismissed.

2002 C L C 1657

[Lahore]

Before Shaikh Abdur Razzaq, J

ALAF DIN‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB through

Collector, Gujranwala and

3 others‑‑‑Respondents

Civil Revision No.621 of 1991. heard on 6th November, 2001.

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)----

‑‑‑‑S. 11‑‑‑Allotment of land for maintenance of family‑‑‑Concurrent findings of fact by Courts below‑‑‑Petitioner claimed himself to be entitled to allotment of the suit land in his name after the death of the original allottee‑‑‑Both the Courts below had concurrently dismissed the suit of the petitioner‑‑‑Validity‑‑‑Land in question being of the nature of temporary allotment the same was not heritable‑‑‑Petitioner could not claim himself to be a beneficiary of tire original allottees of the suit land as he had not been a member of the allottee family‑‑‑Land in the present case, had rightly been allotted and mutated in the name of the respondent who survived the original allottee‑‑‑Both the Courts below had rightly non‑suited the petitioner.

Feroze Bibi v. Settlement Commissioner (Land) and another NLR 1980 UC 128; Raisham Bibi v. Umar Din 1986 CLC 2354; Shadi Khan v. Additional Commissioner (Consolidation) and others 1989 SCMR 1942, Haji Muhammad Zaman v Zafar Ali Khan and others PLD 1986 SC 88 and Abdul Hameed v. Ghulam Muhammad and others 198 7 SC M R 1005 ref.

Syed Farooq Hassan Naqvi for Petitioners Nos. 1 to 3.

Mian Shahid Rasool for Respondents 1 to 3.

Ch. Amir Hussain for Respondent No.4.

Date of hearing: 6th November, 2001

JUDGMENT

Briefly stated the facts are that the plaintiff/petitioner Alaf Din claims himself to be a Jammu and Kashmir refugee and asserts that land measuring 26 Kanals, 14 Marla; described in para. No.2 of the plaint was allotted to him in 1954, that the said allotment was for the maintenance of persons namely the plaintiff/petitioner, Saif Ali and Habib Ali son of Bhali, that Saif Ali, was named as head of family and on his death Habib Ali succeeded who also died on 17‑11‑1977 and now he is the only surviving beneficiary and holder of the allotted land, that Government offered the disputed land to the temporary allottees so he (plaintiff/petitioner) deposited Rs.1,340 on 5‑11‑1979 with the Assistant Commissioner, Gujranwala/defendant/respondent No.1 who confirmed proprietary rights, that on 10‑12‑1979 Tehsildar, Gujranwala/defendant/ respondent No.2 ordered that the suit land be mutated in the name of said Habib Ali and finally Mutation No.402, dated 29‑1‑1980 was sanctioned in his (&bib Ali) favour, that the order of Assistant Commissioner (D.S.C. and) dated 5‑11‑1979 and Mutation No.402, dated 19‑1‑1980 is void, illegal, without jurisdiction and mala fide as mutation could not be sanctioned in the name of deceased's head of family that he moved several applications to the defendants/ respondents but no action whatsoever was taken, hence he filed the instant suit for declaration that he (plaintiff/petitioner) is the only beneficiary and is entitled to land measuring 26 Kanals, 14 Marlas and orders, dated 5‑I1‑1979, 10‑12‑1979 and 29‑1‑1980 are illegal, void and have no effect on his rights. He further prayed that during the pendency of the suit the defendants/respondents be permanently restrained from allotting the suit land to any other person.

1. The suit was resisted by the defendant/respondent No.4 Mst. Begum Bibi who raised three preliminary objections and asserted that she being daughter of Saif Ali is only entitled to the allotment of land O1 the plaintiff/petitioner has no locus standi to file the suit:

2. Divergent pleadings of the parties gave rise to the following issues:

(1)??????? Whether the plaintiff has no locus standi? OPD

(2)??????? Whether the suit is not maintainable'? OPD

(3)??????? Whether the Civil Court has no jurisdiction" OPD

(4)??????? Whether plaintiff is the sole person entitled for the disputed land and the disputed orders are ineffective upon the rights? OPP

(5)??????? Relief.

1. In support of his stand the plaintiff/petitioner examined P. W.1 Zia‑ud‑Din P.W.2 Peer Muhammad, P.W.3 Abdul Rehman and recorded his own statement as P.W.4. He also produced documents Exhs.P.l to P.10. In rebuttal the defendant/respondent No.4 Mst. Begum Bibi recorded her own statement as D.W.1 and examined Jamal Hussain D. W.2. She also produced documents Exhs. P.D. 1 to D.5 and then closed her evidence.

2. After going through the evidence produced by the parties the learned Senior Civil Judge, Gujranwala dismissed the suit vide judgment and decree, dated 12‑11‑1987. The plaintiff/petition felt aggrieved of the said judgment and challenged the same which came up for hearing before Mr. Fakhar Hayat, the then Additional District Judge, Gujranwala who accepted the same and remanded the suit vide judgment, dated 13‑3‑1989. After the remand of the suit it was again dismissed by the learned Senior Civil Judge, Gujranwala vide judgment and decree, dated 7‑7‑1990. The plaintiff/petitioner again felt aggrieved of the said judgment and decree and filed an appeal which has again been dismissed by the .learned Additional District Judge, Gujranwala vide judgment and decree, dated 13‑2‑1991. Hence the instant civil revision.

3. Arguments have been heard and record perused.

4. It is submitted by the learned counsel for the plaintiff/petitioner that initially land has been allotted for three persons of a family headed by Saif Ali, that the said three persons included Saif Ali, Habib Ali and Alai, Din Plaintiff/petitioner). that the plaintiff/petitioner though was not brother of Sail Ali and Habib Ali but he had been adopted as a son by Saif Ali and as such was one of the three members of his family that Saif Ali was allotted land measuring 26 Kanals, 14 Marlas (suit land) on 21‑12‑1954 as maintenance allowance, that Habib Ali had been residing with Saif Ali and so also the plaintiff/petitioner, that Saif Ali died in 1961 and was survived by his other brother Habib Ali who also died on 17‑11‑1977, that after the death of Saif Ali and Habib Ali it is the plaintiff/petitioner who has been coming in possession of the suit land, that it is he who moved an application for allotment of the land and deposited the sale price in the name of Habib Ali and as such the proprietary rights were conferred on 10‑9‑1979 that Mutation No.402 was sanctioned in the name of Habib Ali on 29‑1‑1980. that, as he has deposited the amount in question for acquiring proprietary rights and was the only surviving member of the family who had been allotted the suit land so he was entitled to proprietary rights of the suit land, that as his said. request was not accepted so he filed the instant suit, that initially the suit was filed against the defendant/ respondents Nos.1 to 3 and later on Mst. Begum Bibi was impleaded as defendant/ respondent No.4 on the basis of an application moved by her on 4‑1‑1980, that Mst. Begum Bibi was not daughter of Saif Ali, as such was not entitled to claim ownership in the suit land, that Mst. Begum Bibi was married with one Sain alias Nizam Din and was not daughter out of Sail Ali but was daughter of Shah Wah, ex‑husband of Mst. Bano who was married with Saif Ali before partition and had been murdered prior to partition. He thus submitted that Mst. Begum Bibi in no way is entitled to claim the suit land. He further contended that even if it is assumed that the plaintiff is not the member of the family of Saif Ali yet he being nearer in degree of Saif Ali shall exclude Mst. Begum Bibi being remoter in degree 'and even on this score is entitled to the suit land. He thus submitted that both the Courts below have not returned the findings in accordance with law.

5. Conversely the impugned judgment of the Courts below have been supported by the learned counsel for the defendant/respondent No.4. To supplement his contentions he referred to the statement of P. W .3 Abdul Rehman who admitted that at the time of Partition, Sail' Ali, Habib Ali and Mst. Begum Bibi came to Pakistan and had been obtaining "Rashan", that it has also been admitted by P.W.2 Peer Muhammad that Saif Ali. Habib Ali and Mst. Begum Bibi have been obtaining "Rashan" that Saif Ali died earlier to Habib Ali, as such Mst., Begum Bibi being the third member of the family is entitled to the suit land, that there is no evidence on record to show if Alaf Din (plaintiff/petitioner) ever accompanied Habib Ali and Saif Ali at the time of Partition, that even in Nikahnama EXh.D.I Mst. Begum Bibi has been shown to be daughter of' Sail' Ali, that as suit land had been allotted for subsistence purposes so it is not inheritable and placed reliance upon Feroze Bibi v. Settlement Commissioner (Land) and another NLR 1980 UC 128. that land allotted for maintenance can be retained by any other eligible person after death of an allottee who was a 'permit holder and heir of deceased allottee has no vested right to such property and placed reliance upon Raisham Bibi v. Umar Din 1986 CLC 2354, that the plaintiff/petitioner being not entitled to allotment has no locus standi to file the suit and placed reliance upon Shadi Khan v. Additional Commissioner. (Consolidation) and others 1989 SCMR 1942. He further contended that both the Courts below have returned concurrent findings which are not revisable except in cases where decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result there from and placed reliance upon Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88 and Abdul Hameed v. Ghulam Muhammad and others 1987 SCMR 1005. He thus submitted that there is no force in this revision and the same be dismissed.

6. The only‑ point which requires determination is, if the plaintiff/petitioner is entitled to claim the suit land being beneficiary of a member of the family who was allotted this land. According to the plaintiff/petitioner he is one of the three members family headed by Sail' ,iii who was allotted this land in 1954. His stand is that after the death of' Sail Ali and Habib Ali he being the third member of the family is entitled to claim the suit land His further contention is that Mst. Begum Bibi defendant/respondent No.4 is not daughter of Saif Ali and as such is not entitled to claim the suit land.

7. The evidence discussed above clearly reveals that it has been admitted by P.W.2 Peer Muhammad and P.W.3 Abdul Rehman, that Mst. Begum Bibi accompanied Sail' Ali and Habib Ali at the time of Partition and all of them have been getting "Rashan" from the concerned department. There is no evidence on record to prove if the plaintiff/petitioner accompanied Saif Ali and Habib Ali at the time of Partition. Mst. Begum Bibi has also been shown to be daughter of Saif Ali as per Nikahnama Exh. D.I. The land in question being of the nature of temporary allotment is not heritable as held in the authorities referred above. Thus, by no stretch of imagination the plaintiff/petitioner can claim himself to be a beneficiary of the A original allottees of this land as he has never been a member of the said family headed by Sail Ali who was allotted the suit land in 1954. The land has rightly been allotted in the name of Habib Ali who survived Saif Ali and has finally been mutated in his name. The plaintiff/petitioner having no concern with the suit land has rightly been non‑suited by the Courts below. There is no force in this civil revision and tile same is hereby dismissed.

Revision dismissed.

2002 C L C 1670

[Lahore]

Before Muhammad Sayeed Akhtar, J

Messrs NOBLE (PVT.) LTD., KARACHI‑‑‑Appellant

Versus

FEDERAL GOVERNMENT EMPLOYEES

HOUSING FEDERATION, SHAHEED‑E‑ MILLATE

SECRETARIAT, ISLAMABAD‑‑‑Respondent

First Appeals from Order Nos. 18, 19, 20 and 21 of 1996, heard on 4th October, 2001.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 28 & 39‑‑‑Appeal‑‑‑Maintainability‑‑‑Extension of time for making of award‑‑‑Competency‑‑‑Arbitrator failed 'to finalize award within four months‑‑‑Application for extension of time was allowed by the Trial Court, which was challenged in appeal‑‑‑Contention of the appellant was that the Trial Court could riot extend the time ‑‑‑Validity‑‑‑Trial Court was vested with the power under S.28 of the Arbitration Act, 1940, to extend time for making of award‑‑‑Such enlargement of time was in the discretion of the Court and the same had to be exercised after taking all the circumstances into consideration‑‑‑Power to enlarge time under S.28 of the Arbitration Act, 1940, was very wide and the same had conferred absolute discretion on the Court to enlarge the time limit for making the award at any time‑‑‑Such power was to be exercised judiciously and not in arbitrary manner and after considering all the circumstances of the case‑‑‑Where order of Trial Court extending time did not fall in any of the clauses mentioned in S.39 of the Arbitration Act, 1940, appeal against such order was not maintainable.

Shiv Omkar Maheshwari v. Bansidhar Jagannath 1956 AIR Bom. 459; WAPDA and another v. Messrs Khanzada M. Abdul Haque Khan Khattak & Co. PLD 1990 SC 359: PLD 1966 Dacca 54; AIR 1957 Cal. 658 and 1985 SCMR 1975 ref.

Sardar Zaheer Ahmad Khan for Appellant.

Ch. Abdul Aziz with Malik Zafar Abbas, Law Officer for Respondent.

Date of hearing: 4th October, 2001.

JUDGMENT

By this single order, I propose to decide F. A. O. Nos. 18 of 1996, 19 of 1996. 20 of 1996 and 21 of 1996, as identical questions of law and facts are involved in the same.

1. The facts succinctly stated that the Federal Government Employees Housing Foundation/respondent floated a scheme to construct 1791 housing units for its members under an ownership scheme at Islamabad. The appellants were pre‑qualified for submission of tender documents for the construction of the above-said project. The appellants were awarded the contract for building the said housing units. Allegedly, the appellants started the construction work at the site but the respondent changed the designs frequently. Resultantly, the appellants suffered huge financial loss. The respondent stopped the payment of running bills and tried to take the possession of the site forcibly. The appellants filed civil suits in the Court of Civil Judge, Islamabad. The matter was referred to the Arbitrator. The Arbitrator entered the reference but could not make his award within the prescribed period of four months in para.3 'of the 1st Schedule to the Arbitration Act. The Arbitrator applied to the Court for extension of the period and the learned Civil Judge, Islamabad by an order; d dated 9‑I‑1996 extended the time for making award. Through this appeal, the order, dated 9‑1‑1996 passed by learned Senior Civil Judge extending the time for making the award is assailed.

2. The learned counsel for the appellants contended that the learned Senior Civil Judge could not extend the time for making the award without hearing the appellants, the same being passed behind the back of the appellants, was void.

3. Conversely, learned counsel for the respondent raised a preliminary objection about the maintainability of the appeals. He further submitted that the learned trial Court had the jurisdiction to extend the time and he in extending time committed no illegality. Reliance was placed on Shiv Omkar Maheshwari v. Bansidhar Jagannath AIR 1956 Born. 459.

4. Section 39 of the Arbitration Act reads as under: ‑‑

"39. Appeal-able orders.‑‑‑ (1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorized by, law to hear appeals from original decrees of the Court passing‑the order

An order‑‑‑

(i)???????? Superseding an arbitration;

(ii)??????? On an award stated in the form of a special case;

(iii)?????? Modifying or correcting an award;

(iv)?????? Filing or refusing to file an Arbitration Agreement;

(v)??????? Staying or refusing to stay legal proceedings where there is an Arbitration agreement.

(vi)?????? Setting aside or refusing to set aside an award;

Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court."

The contention of the learned counsel for the respondent that this appeal is not maintainable is not devoid of force. The said section clearly enjoins that an .appeal shall lie only from order mentioned in section 39 of Arbitration Act, 1940, "and from no others". See WAPDA and another v Messrs Khanzada M. Abdul Hague Khan Khattak & Co. PLD 1990 SC 359. The words "and from no others are significant. Under the present section no appeal shall lie from an order of the nature which is not included in the clauses (i) to (vi). The order of the trial Court extending the time, in my opinion, does not fall in any of the clauses mentioned therein. In the case AIR 1956 Born. 459 (supra), it was held as under:‑‑

"the contention that extension of, time should not have been allowed by the learned Judge cannot, in our opinion, be made by the appellant because under section 39, Arbitration Act, an order passed by the trial Judge extending time is not appealable. Legislature has clearly contemplated that the question as to whether time should be extended should be left entirely to the discretion of the trial Judge and the, order that the trial Judge may pass in the exercise of his discretion should be regarded as final."

Specific provisions have been made, for appeals against decrees or orders passed under the provisions of this Act. This leaves no doubt in my mind that the present appeals are not maintainable.

Section 28 of the Arbitration Act vests the Court with power to extend the time for making of an award. The enlargement of time is in the discretion of the Court and has. to be exercised after taking all the circumstances into consideration. The language of section 28(i) is very wide and confers absolute discretion on the Court to enlarge the time limit for making the award at any time. However, the power is to be exercised judicially and not in an arbitrary manner and on consideration of all the circumstances .of the case. See PLD 1966 Dacca 54, AIR 1957 Cal. 658 and 1985 SCMR 1975 where the time was extended even after the time for making the award had already expired. In the case in hand the Arbitrator (Secretary, Housing and Works) vide his dated 13‑12‑1995 prayed for extension of time up to 31-1-1996 for making the award on the ground that the order, dated 13‑11‑1995 trial Court inadvertently mentioned paragraph 44 which was typographical mistake and correction was sought by making application. It was further stated that he being pre‑occupied governmental affairs was unable to finalize the award. In circumstances, the power was exercised judicially by the Court and I find no flaw in it.

As far as notice to the appellants is concerned, they were the plaintiffs/applicants before the trial Court and they were supposed to be present on all the dates as such question of notice to them did not arise. Admittedly, the award has been filed in the Court. Learned counsel for the appellants raised objections on the award and also led evidence. The objection being taken before this Court can be raised before the learned trial Court.

1. For what has been stated above, these appeals have no merit and are dismissed with no order as to costs.

Q.M.H./M.A.K./N‑138/L ??????

Appeal dismissed.

2002 C L C 1683

[Lahore]

Before Muhammad Sair Ali, J

PROVINCE OF PUNJAB through

Collector, Sialkot and 2 others‑‑‑Appellants

Versus

Haji MUHAMMAD SIDDIQUE

and 10 others‑‑‑Respondents

First Appeal from Order No.82 of 1993, decided on 2nd November, 2001.

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

‑‑‑‑S. 54‑‑‑Appeal‑‑‑Right to file‑‑‑Necessary parties‑‑‑Appeal filed Ion behalf of local authority or company i.e. the beneficiary of land acquisition‑‑‑Validity‑‑‑Such appeal was incompetent as only parties to proceedings under S. 18 of the Land Acquisition Act, 1894, were competent to file appeal.

Pit Khan v. Military Estate Officer and others PLD 1987 SC 485 eel.

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

‑‑‑‑Ss. 34 (as applicable to Punjab) & 54‑‑‑Civil Procedure Code (V of 1908), S.151‑‑‑Compound interest, awarding of‑‑‑Waiving of such interest‑‑‑Contention of the authorities was that despite the landowners had waived claim of compound interest, the Trial Court had awarded the same‑‑‑Validity‑‑‑Award of compound interest from the date of possession till payment or deposit was mandatory upon the Collector under S.34 of the Land Acquisition Act, 1894, as the Collector was duty bound to grant the same‑‑‑Landowner had no right to waive the compound interest‑‑‑Any waiver or agreement of waiver was void under the express statutory injunction contained in S.34 of the Land Acquisition Act, 1894‑‑‑Even if the compound interest was not claimed or demanded in any proceedings by the landowners plea of waiver or estoppel could not be raised against them‑‑‑Landowners were not debarred from claiming interest under S.151, C.P.C. read with S.34 of the Land Acquisition Act, 1894‑‑‑Compound interest awarded by Trial Court did not suffer from any legal infirmity‑‑‑Appeal was dismissed in circumstances.

Mst. Fahmida Khatoon v. Additional Deputy Commissioner (Consolidation), Lahore and another PLD 1975 Lah. 942 ref.

Muhammad Akbar Tarar. A.A.‑G. for Appellants.

Ch. Muhammad Khan for Respondents.

Date of hearing: 10th October, 2001.

JUDGMENT

Upon acquisition of land of the predecessors‑in‑interest of the respondents, compensation under section IS of the Land Acquisition Act was determined by the learned Senior Civil Judge, Sialkot on 24‑7‑1984 but 15 % compulsory acquisition charges were awarded on 14‑12‑1988. The Court omitted to grant 8% compound interest as imperatively enjoined by section 34 of the Land Acquisition Act. The respondent, therefore, filed a review application on 5‑7‑19.89 claiming compound interest @ 8% and also seeking enhancement of the compensation. By order dated 26‑11‑1992 learned Senior Civil Judge, Sialkot held as under:‑‑

(i) Review against enhancement was not competent and was thus disallowed;

(ii) Application under Order XLVII was compositly treated also as an application under section 151, C.P.C. and was held to be within time in the matter of grant of interest: and

(iii) Compound interest a 8% from the date of possession of the land till deposit or payment of compensation was allowed to the respondents.

1. The abovesaid order, dated 26‑11‑1992 has been challenged through this F.A.O. by three parties i.e. Province of Punjab through Collector, WAPDA (the beneficiary of the land) and Land Acquisition Collector, WAPDA.

2. The learned A.A.‑G. contended that the review filed by the respondents was time‑barred as well as incompetent and the respondents were estopped to claim compound interest as throughout they had omitted to make claim for interest.

3. Learned counsel for the respondents contended that WAPDA's appeal was incompetent and that respondents had filed a composite application to enhance the compensation in review of the award and also for grant of interest under section 151, C.P.C. in terms of mandatory provisions of section 34 of the Land Acquisition Act. And that since the compulsory charges were granted and finally determined in favour of the petitioners on 24‑12‑1988, where for this application under section 151, C.P.C. read with section 34 of the Land Acquisition Act, filed on 5‑7‑1989 was within three years under residue Article 181 of the Schedule to Limitation Act.

4. I have considered the arguments and examined the record. As held by the Honourable Supreme Court of Pakistan in the case of Pir Khan v. Military Estate Officer and others PLD 1987 SC 485 an appeal on behalf of a local authority or a company i.e. the beneficiaries of land acquisition is incompetent as only parties to proceedings under section 18 of the Land Acquisition Act were competent to file an appeal. In view thereof, appeal on behalf of WAPDA and its officers (appellants Nos.2 and 3) is incompetent. However, appellant No.1 can competently maintain an appeal from an award under section 18 or even otherwise under the provisions of Civil Procedure Code, if an appeal is otherwise competent.

5. Examination of the impugned order, dated 26‑11‑1992 passed by the learned Senior Civil Judge, Sialkot, shows that he dismissed the review seeking enhancement of compensation but allowed compound interest (& 8% in terms of section 34 of the Land Acquisition Act by invoking provisions of section 151, C.P.C. in reliance upon the judgment of Mst. Fehmida Khatoon v. Additional Deputy Commissioner (Consolidation), Lahore and another PLD 1975 Lah. 942. An order passed under section 151, C.P.C. is not an appeal-able order under rule I of Order XLIII, C.P.C. As such even appellant No. 1 could not have tiled the present appeal against the impugned order.

6. Be that as it may application under section 151, C.P.C. was obviously within time from the date of award of 15% compulsory acquisition charges through order, dated 14‑12‑1988 as the application was filed within three years on 26‑11‑1999. The provisions of section 34 read with Punjab Amendment of the Land Acquisition Act provides as under: ‑‑

“34 Payment of interest.‑‑‑When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount award with compound interest thereon at the rate of eight per centum per annum from the time of so taking possession until it shall have been so paid or deposited:

Provided that any waiver of the above right by the landowner shall be void and he shall be entitled to the said interest notwithstanding any agreement to the contrary."

Under the provisions of above reproduced section 34 award of compound interest from the date of possession till payment or deposit is mandatory upon the Collector who is thereby duty bound to grant the same. A landowner has no right whatsoever to waive the same and any waiver or agreement of waiver thereof has been‑held to be void under the express statutory injunction contained in the above reproduced section. In view thereof even if the same was not claimed or demanded in any proceedings by the respondents, a plea of waiver or estoppel cannot be raised against them and the respondents were not debarred from claiming interest under section 151, C.P.C. read with section 34 of the Land Acquisition Act. As such there is no legal infirmity in the impugned order. This appeal is, therefore, dismissed for being without merit. There shall, however, be no order as to costs.

Q.M.H./M.A.K./P‑63/L

Appeal dismissed.

2002 C L C 1697

[Lahore]

Before Muhammad Akhtar Shabbir, J

Dr. MUHAMMAD AZAM KHAN‑‑‑Petitioner

Versus

DIRECTOR‑GENERAL, EXCISE AND TAXATION, LAHORE and 2 others‑‑‑Respondents

Writ Petition No.5208 of 2001/BWP, decided on 28th January, 2002

(a) Punjab Excises Act (I of 1914)‑‑‑

‑‑‑‑S. 36‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Principle of audi alteram partem‑‑‑Applicability‑‑‑Licence, cancellation of‑‑‑Physical condition of licence holder ‑‑‑Relevancy‑‑­Petitioner was licence‑holder of alcohol to be used in his pharmacy for the manufacture and production of different medicines‑‑‑Authorities without checking the pharmacy and in the absence of the petitioner levelled false allegations and malafidely declared the petitioner physically unsound to possess the licence for homoeopathic medicines, resultantly the licence was cancelled‑‑‑Validity‑‑‑Licence or permit could be cancelled or suspended if the conditions laid down in S.36 of Punjab Excises Act, 1914, were contravened‑‑‑Authorities in the cancellation order did not mention as to which condition mentioned in S.36 of Punjab Excises Act, 1914, had been violated by the petitioner‑‑ ‑Power for cancellation of licence or permit had been conferred on the Government under S.36 of Punjab Excises Act, 1914‑‑‑Physical condition of licence­ holder was not a condition for grant of licence or for cancellation of the same‑‑‑Licence having been granted to the petitioner on fulfilment of the conditions, the Government had no power to cancel the same‑‑­Authorities in the present case, failed to show that while cancelling the licence of the petitioner, he was issued a show‑cause notice with regard to violation of any of the conditions of the permit or provisions of S.36 of the Punjab Excise Act, 1914‑‑‑Order passed by the authorities was in violation of principle of natural justice i.e. audi alteram partern ‑‑‑ High Court in exercise of Constitutional jurisdiction set aside the order passed by the authorities and case was remanded for decision afresh‑‑‑Petition was allowed accordingly.

Pakistan and another v. S. Hussain Ali Shah A. Fazlani PLD 1960 SC 310; Province of East Pakistan and another v. Nur Ahmad and another PLD 1964 SC 451 and Murree Brewery Company Limited v. Director‑General Excise and Taxation 1991 MLD 267 ref.

(b) Natural justice, principles of‑‑­

‑‑‑‑Opportunity to show‑cause, non‑affording of‑‑‑Effect‑‑‑Such opportunity must be, afforded to the affected party and in case of non‑compliance of principle of natural justice, the action taken or order passed by judicial, non‑judicial, quasi‑judicial and executive authority tantamount to order passed illegally and without lawful authority.

Saiyyid Abul A'la Maudoodi and 2 others v. Th Government of West Pakistan and another PLD 1964 SC 673 rel.

Rana Muhammad Yaqub Khan for Petitioner.

Mian Muhammad Bashir, A.A.‑G. for Respondents.

2002 C L C 1738

[Lahore]

Before Ali Nawaz Chowhan, J

SHAH NAWAZ BEGUM‑‑‑Petitioner

versus

MUHAMMAD RAMZAN‑‑‑Respondent

Civil Revision No. 1926 of 1988; heard on 16th July, 2002

Punjab Tenancy Act (XVI of 1887)‑‑‑

‑‑‑‑Ss. 77(2)(i), (3) & 4(5)‑‑‑Civil Procedure Code (V of 1908), O.VII, R.10‑‑‑Suit between landlord and tenant arising out of the lease and condition on which tenancy was held‑‑‑Interpretation of S.77, Punjab Tenancy Act, 1887‑‑‑Jurisdiction of Civil Court‑‑‑Scope‑‑‑Civil Court having no jurisdiction in the matter, instead of dismissing the suit, it return the plaint for presentation to the Collector under O.VII, R.10, C.P.C.

Muhammad Hafeez v. Additional Commissioner (Revenue), Sargodha and others 1981 SCMR 1171 ref.

Muhammad Ahmad Ahsan for Petitioner

Younas Ali Sulehria for Respondent

Date of hearing: 16th July, 2002.

2002 C L C 1741

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD ZAFAR IQBAL‑‑‑Petitioner

versus

DIRECTOR, SECONDARY EDUCATION, MULTAN‑‑‑‑Respondent

Writ Petition No.3918 of 1995, decided on 28th March, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.199 & 212(2)‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Civil service‑‑‑ Withdrawal of appointment letter‑‑‑Incorrect particulars‑‑‑ Petitioner, did not mention correct particulars at the time of his appointment, he claimed to have the B.S.Ed. degree in the subject of biology, required for the vacancy whereas during inquiry by the Authorities it transpired that the petitioner was B.S.Ed. not in the required subject but in some other subject‑‑‑Authorities withdrew the appointment letter issued to the petitioner‑‑‑Validity‑‑‑Matter relating to appointment or withdrawal of appointment pertained to terms and conditions of service and a dispute with regard thereto fell within the exclusive jurisdiction of Service Tribunal under Art.212(2) of the Constitution‑‑‑High Court declined to interfere with the order passed by the Authorities‑‑‑Constitutional petition was dismissed in circumstances.

Ch. Abdul Ghani for Petitioner.

Mehar Muhammad Saleem Akhtar for Respondent.

Date of hearing: 28th March, 2002.

2002 C L C 1746

[Lahore]

Before Maulvi Anwarul Haq, J

GHULZAR AHMAD KHAN and 2 others‑‑‑Petitioners

versus

DEPUTY COMMISSIONER, HAFIZABAD and 2 others‑‑‑Respondents

Writ Petitions'Nos.2357, 2211, 2212 and 8325 of 2001, decided on 17th October, 2001.

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

‑‑‑‑Ss. 44 & 47‑‑‑Constitution of Pakistan (1973), Art.19g‑‑­Constitutional petition ‑‑‑Mutation, review of‑‑‑Petitioners had alleged that mutations in respect of land purchased by them were reviewed by Authorities and mutations earlier attested in their favour were cancelled without issuing them any notice or hearing them‑‑‑Petitioners had claimed that notwithstanding, sanction of review by Competent Authority, review itself had to be conducted by concerned Revenue Officer in an open assembly after notice to the parties and after hearing them, but that had not been done in the present case‑‑‑Constitutional petitions were allowed, orders reviewing mutations were set aside and case was remanded to be decided afresh after hearing petitioners and adopting proper procedure in accordance with law.

Abdullah and A.K. Dogar for Petitioner.

Date of hearing: 17th October, 2001.

2002 C L C 1748

[Lahore]

Before Farrukh Lateef, J

M. JAVED IQBAL‑‑‑Petitioner

versus

Mst. TAHIRA NAVEED‑‑‑Respondent

Writ Petition No.6321 of 2001, decided on 10th April, 2002.

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

‑‑‑‑S. 5 & Sched.‑‑‑Recovery of maintenance‑‑‑Jurisdiction of Family Court ‑‑‑Scope‑‑‑ Family Court has the jurisdiction to entertain and adjudicate upon the matters specified in Sched. of West Pakistan Family Courts Act, 1964‑‑‑Maintenance is specified in the Sched. and the Family Court has jurisdiction to adjudicate the matter.

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

‑‑‑‑Ss. 5 & 14‑‑‑Recovery of maintenance‑‑‑Suit decreed by Senior Civil Judge and appeal decided by District Judge‑‑‑Validity‑‑‑If the Family Court was not presided over by the District Judge, under S.14 of West Pakistan Family Courts Act, 1964, the decision given or decree passed by Family Court was appealable to District Judge‑‑‑Judgment and decree was passed by Senior Civil Judge and appeal was heard by District Judge both the Courts below thus had lawful authority to pass judgments and decrees respectively.

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

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973); Art.199‑‑‑Constitutional petition‑‑‑ Maintenance and delivery expenses‑‑‑Determination‑‑‑Wife sought recovery of maintenance for the minors and herself and also sought recovery of delivery expenses‑‑‑Suit was decreed in favour of the wife at the rate of Rs.500 each per month and a sum of Rs.22,797 as delivery expenses‑‑‑Appeal against the judgment and decree passed by the Family Court was dismissed by the Appellate Court‑‑‑Validity Assessment of evidence or determining the amount of maintenance is the function of Family Court which had the exclusive jurisdiction to decide such matters‑‑‑While determining the amount of maintenance and assessing the expenses incurred by the wife on the ,delivery/birth of son, the Family Court had neither misread any evidence nor any material piece of evidence was overlooked‑‑‑High Court declined to interfere with the judgments and decrees passed by the Courts below‑‑‑Constitutional petition was dismissed in circumstances.

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

‑‑‑‑S. 17‑‑‑Qanun‑e‑Shahadat (10 of 1984), Preamble‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑‑Proceedings before Family Court‑‑­Provisions of Civil Procedure Code, 1908, and Qanun‑e‑Shahadat, 1984‑‑‑Applicability‑‑‑Such provisions do not apply to proceedings before Family Court.

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

‑‑‑‑S. 18‑‑‑Appearance through agent‑‑‑Non‑appearance of plaintiff‑‑­Defendant raised an objection that the plaintiff did not appear herself in the suit but had produced her father as special attorney in the Family Court‑‑‑Validity‑‑‑Appearance through agent was legally permissible under S.18 of West Pakistan Family Courts Act, 1964‑‑‑Family Court had rightly not drawn adverse inference from non‑appearance of the plaintiff in the witness‑box in support of her claim.

(f) West Pakistan Family Courts Art (XXXV of 1964)‑‑‑

‑‑‑‑S. 14(2)(c)‑‑‑Appeal‑‑‑Maintainability‑‑‑Appeal against judgment ‑and decree granting maintenance to the extent of Rs.500 per month was not competent under S.14(2)(c) of West Pakistan Family Courts Act, 1964.

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

‑‑‑‑S. 14‑‑‑Appeal‑‑‑Condition of furnishing of surety bond ‑‑‑Non­compliance‑‑‑ Recovery of maintenance and delivery expenses were sought by the wife for the minors and herself‑‑‑Suit was decreed in favour of the wife at the rate of Rs.500 for each per month and a sum of Rs.22,797 as delivery expenses‑‑‑Appellate Court imposed condition of furnishing of surety bond before adjudicating the appeal against the judgment and decree passed by the Family Court‑‑‑Appellate Court dismissed the appeal on account of non‑compliance of the condition so imposed‑‑‑Validity‑‑‑Furnishing of the surety bond was a condition precedent for the admission of appeal; default of the appellant led to the legal consequence of dismissal of appeal‑‑‑Appeal was rightly dismissed by Appellate Court in circumstances.

1995 MLD 1057 ref.

Muhammad Naveed Hashmi for Petitioner

Islam Ali Qureshi for Respondents Nos. to 3

Date of hearing: 27th March, 2002

2002 C L C 1758

[Lahore]

Before Syed Zahid Hussain, J

CHIEF ADMINISTRATOR AUQAF, PUNJAB‑‑‑Appellant

versus

Syed GHULAM MOHY‑UD‑DIN through Legal Heirs‑‑-Respondents.

First Appeal from Order No.89 of 1995, heard on 31st March, 2001.

Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑‑‑Ss. 2(e), 7, 11 & 12‑‑‑Status of property as Waqf property‑‑­Determination of‑‑‑Chief Administrator Auqaf, Punjab vide a Notification took over and assumed administration, control, management and maintenance of `Khanqah Hazrat Shah Sideman' and attached properties described in the Schedule‑‑‑Respondents/claimants challenged the Notification under S.11, Punjab Waqf Properties Ordinance, 1979'on the ground that land mentioned in the Notification was owned and possessed by them as the same was gifted away by a Hindu owner to their predecessor‑in interest by a memorandum of gift and that they were owners of the same through succession‑‑‑Case of respondents/claimants was to the effect that property in dispute was not Waqf and that Notification issued by the Authority assuming same as Waqf property was illegal‑‑‑Validity‑‑‑Trial Court on basis of memorandum of gift by non­-Muslim in favour of predecessor‑in‑interest of respondents and evidence produced by witnesses produced by respondents/claimants found that property having been donated by a non‑Muslim to grandfather of respondent claimants could not be held Waqf property‑‑‑Deposition of witnesses was to the effect that property in dispute was owned by respondents claimants where neither any Urs was taking place nor any offering was being made by anyone and that there was no Mutawalli‑‑­Preponderance of material on record, in circumstances, did not establish that property in dispute was a Waqf property for control of which Notification under S.7 of Punjab Waqf Properties Ordinance, 1979 could be made‑‑‑Conclusion drawn by Court below that property in dispute was not a Waqf property, could not be regarded as illegal so as to warrant interference by High Court‑‑‑Appeal having no merit was dismissed, in circumstances.

Elahi Baksh v. Chief Administrator, Waqf Property 1982 SCMR 160; Mian Ahmad Ali, v. The Rehabilitation Authority through The Deputy Rehabilitation Commissioner, Sargodha PLD 1964 SC 229; Sajjad Hussain v. Musarat Hussain Shah and others 1989 SCMR 1826; Chief Administrator of Auqaf, Punjab, Lahore v. Koura alias Karam Ilahi and another PLD 1991 SC 596 and Chief Administrator Auqaf, Lahore v. Hassan Muhammad and 9 others 1988 SCMR 1269 ref.

Muhammad Arif Raja for Appellant.

C.M. Sarwar for Respondent.

Dates of hearing: 30th and 31st of March, 2001

2002 C L C 1768

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD ASLAM‑‑‑Petitioner

versus

DISTRICT JUDGE and others‑‑‑Respondents

Writ Petition No.588 of 2002, decided on 5th June, 2002.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973),Art. 199‑‑‑Constitutional petition‑‑‑ Suit for maintenance‑‑‑Quantum of maintenance‑‑‑Family Court and Appellate Court concurrently decreed the suit‑‑‑Defendant/petitioner in his Constitutional petition had challenged only the quantum of maintenance stating that he was willing to pay maintenance, but had urged that quantum of maintenance allowance as determined by the Courts was excessive which should be reduced‑‑­Validity‑‑‑Maintenance allowance fixed by Courts below was not excessive as the same was fixed after proper assessment, evaluation and appraisal of evidence available on record regarding means of the defendant/petitioner‑‑Assessment of evidence or to determine amount of maintenance was function of, Family Court which was vested with exclusive jurisdiction to decide such matters‑‑‑Powers of High Court in Constitutional jurisdiction were not analogus to those of an Appellate Court‑‑‑High Court could declare an order passed by Family Court as without lawful authority and of no legal 'consequence, but could not substitute its own judgment for that of Family Court by reducing quantum of maintenance allowance fixed by Family Court‑‑‑No legal infirmity or jurisdictional error could be pointed out in the judgments concurrently passed by two Courts below justifying interference in exercise of Constitutional jurisdiction of High Court.

Rana Abdul Majeed for Petitioner.

Zafar Iqbal for Respondents Nos. 3 to 6.

Date of hearing: 3rd June, 2002.

2002 C L C 1779

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

MUHAMMAD ANWAR WAHLA‑‑‑Appellant

versus

MUHAMMAD TARIQ TUNG ‑‑‑Respondent

Regular First Appeal No.590 of 2000, heard on 25th February, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXVII, Rr.2 & 3‑‑‑Suit for recovery of loan based upon promissory note‑‑‑Leave to appear and defend the suit‑‑‑" Qarz‑e‑Hasna", meaning and scope‑‑‑Suit was resisted by borrower/defendant contending that as amount was given to him by plaintiff/creditor as Qarz‑e‑Hasna, same could not be recovered from him by plaintiff, until defendant/borrower was in a position to repay the same‑‑­Defendant/borrower had not taken such plea either in application for leave to appear filed by him or in his written statement and had not asked for framing of any issue in that behalf nor any evidence had been led‑‑­Pronote, receipt and affidavit did not mention as if the amount was given to borrower as Qarz‑e‑Hasna‑‑‑Promissory note clearly mentioned that amount would be payable on demand which meant that repayment of amount was not left to the option of the borrower‑ ‑‑Borrower had contended that as plaintiff/creditor in his legal notice and plaint had described loan as Qarz‑e‑Hasna, it was sufficient to determine the nature of loan as Qarz‑e‑Hasna‑‑‑Validity‑‑‑Contention was repelled because merely stating loan amount as Qarz‑e‑Hasna would not mean that it was purely in the nature of Qarz‑e‑Hasna given for purpose of helping another with an object that it should be payable only when borrower was in a position to pay the same‑Description of loan as Qarz‑e‑Hasna was meant to be a loan given to a borrower simply without any interest, but not purely in nature of Qarz‑e‑Hasna‑‑‑Objection of defendant/borrower that no decree could be passed against him because of nature of loan being Qarz‑e‑Hasna, was also repelled‑‑‑Judgment and decree of Trial Court passed in favour of plaintiff/creditor and against defendant/borrower was absolutely in accordance with record and was legal‑‑‑In absence of any misreading or non‑reading of evidence on record, appeal against judgment and decree of Trial Court was dismissed.

Habib Bank v. Messrs Qayyum Spinning Ltd. 2001 MLD 1351 and Dr. M. Aslam Khaki v. Syed Muhammad Hashim and 2 others PLD 2000 SC 225 ref.

Ch. M. Wasi Zafar for Appellant.

Ch. M. Akbar Gill for Respondent.

Date of hearing: 25th February, 2002.

2002 C L C 1796

[Lahore]

Before Muhammad Akhtar Shabbir, J

BASHIR AHMAD and others‑‑‑Petitioners

versus

DISTRICT AND SESSIONS JUDGE and others‑‑‑Respondents

Writ Petition No.‑6606 of 1993, heard on 31st July, 2001.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4, 15 & 21‑‑‑Constitution of Pakistan (1973), Art.199‑Constitutional petition‑‑‑Suit for pre‑emption ‑‑‑Partial pre‑emption‑Plaintiff filed suit to the extent of 8 Kanals, 14 Marlas out of 14 Kanals, 14 Marlas sold by vendor to vendee‑‑‑Suit was resisted by defendants/vendees raising plea of partial pre‑emption contending that 6 Kanals of total land sold having not been pre‑empted suit was hit by part pre‑emption ‑‑‑Claim of plaintiffs was that said 6 Kanals of land had been decreed in favour of other vendee on his filing suit for specific performance of contract against the vendor‑‑‑Subject‑matter of suit for specific performance of contract was different than that of property in dispute and was not part of land sold by vendor to vendees‑‑‑Plaintiffs had not annexed with plaint any copy of record of rights to establish their claim and had not scrutinized decree passed in suit for specific performance of contract‑‑‑Evidence ,on record had fully proved that principle of partial pre‑emption was attracted to the case‑‑‑Case being hit by part pre‑emption, Trial Court was not justified to decree the suit and findings of Trial Court were rightly set aside by Appellate Court.

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

‑‑‑‑S. 115‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑ Constitutional petition would not lie against a judgment or order passed by a Court in exercise of its jurisdiction under S.115, C.P.C. unless it was established that said judgment or order passed in revision was illegal or without lawful authority.

Muhammad Swaleh v. United Grain and Fodder Agencies PLD 1964 SC 97; Sattan v. Waryam 1998 CU 59; Khawaja Sharif v. Additional District Judge 1991 CLC 254; Khadim Hussain v. Additional District Judge NLR 1991 Civil 354; Mamoon Rashid v. Kokub Noorani PLD 1999 Kar. 253; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 and Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65 ref.

S.M. Almas Ali for Petitioners.

Khan Khizar Abbas Khan for Respondents Nos.3 to 7.

Date of hearing: 31st July, 2001.

2002 CLC 1801

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

versus

GHULAM SABIR‑‑‑Respondent

Writ Petition No.3230 of 2002, decided on 17th July, 2002.

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

‑‑‑‑S. 5, Sched. & S. 7‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑­Qanun‑e‑Shahadat (10 of 1984), Preamble‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Review‑‑‑Suit for recovery of articles of dowry‑‑‑Documents containing list of dowry articles and receipts of dowry were exhibited as part of the record of the case‑‑­Husband moved application to de‑exhibit the said documentary evidence produced by the petitioner (wife) which was accepted by the Family Court and the documents were de‑exhibited‑‑‑Validity‑‑‑De‑exhibiting the documents, both the lists and the receipts, was entirely an action without lawful authority and jurisdiction‑‑‑Neither Civil Procedure Code, 1908 nor Qanun‑e‑Shahadat, 1984 applied to the proceedings under the West Pakistan Family Courts Act, 1964‑‑‑Family Court while de‑exhibiting the documents had recorded reasons which was completely a new anomaly where the Court reviewed its earlier order, which was not available to the Family Court under the West Pakistan Family Courts Act, 1964‑‑‑When a document was exhibited by the Family Court, same could not be de­-exhibited through review of the earlier order‑‑‑Order of the Family Court being patently illegal and without jurisdiction, High Court in the exercise of Constitutional jurisdiction had the power to set aside such order.

Anwar Masih v. Wilat and 2 others 1983 CLC 2365 and Mst. Zainab Khatoon v. Mian Ghulam Shabbir and others PLD 1965 SC 55 ref.

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

‑‑‑‑S. 5,‑ Sched. & S. 7‑‑‑Suit for recovery of dowry articles‑‑‑Provision of S.7, West Pakistan Family Courts Act, 1964 makes it mandatory upon the parties to give schedule of witnesses giving summary of evidence and also production of all the documents in possession of the parties‑‑‑Family Court, under S.7 is possessed with power to allow any witness to produce any document on record and pass order as the Court thinks expedient and just for the fair administration of justice.

Ijaz Ahmad Khan for Petitioner.

Abdur Razzaq Younas for Respondent.

Date of hearing: 17th July, 2002.

2002 C L C 1819

[Lahore]

Before Muhammad Saeed Akhtar, J

MUZAFFAR KHAN and others‑‑‑Petitioners

versus

EVACUEE TRUST PROPERTY through Deputy Administrator‑‑‑Respondent

Writ Petitions Nos.659, 506, 536, 537, 566, 567, 568, 664, 669, 688, 689, 690, 709, 710, 731, 754, 795, 802, 816, 821, 838, 841, 842, 873, 887, 906, 907, 937, 968, 973, 980, 998, 1039, 1077, 1148, 1159, 1160, 1162, 1203, 1215, 1249, 1292, 1311, 1318, 1418, 2941, 621, 622, 623, 624, 1437, 1391, 1515, 1642, 1739 and 1052 of 2002, decided on 26th June, 2002.

(a) Evacuee Trust Properties (Management and Disposal) Act XIII of 1975)‑‑‑

‑‑‑‑Ss. 3 & 4(f)‑‑‑Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977 framed under S.30 of Evacuee Trust Properties (Management and Disposal Act (XIII of 1975), Cl.(11) [as amended vide S.R.O.461(I)/2001, dated 14‑9‑2001]‑‑‑Constitution of Pakistan (1973), Arts.25 & 199‑‑‑Constitutional petition‑‑‑Enhancement of rent under amended Scheme‑‑‑Validity‑‑‑Amended C1.(11) of Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977, whereby rent of urban evacuee trust properties had been enhanced and had been challenged by tenants under Evacuee Trust Property Board‑‑­Evacuee Trust Property Board constituted under S.3 of Evacuee Trust Properties (Management and Disposal) Act, 1975, though had been conferred power by S.4(f) of Evacuee Trust Properties (Management and Disposal) Act, 1975 to assess or reassess rent or lease amount of evacuee trust property, but that discretion had to be exercised reasonably, justly and not arbitrarily‑‑‑Objections or proposals were not invited by Board or by Federal Government from the tenants and they were not associated in preparation of new formula for enhancement of rent‑‑‑Process of decision making by public `functionaries should exhibit transparency‑‑‑Failure to observe basic rules of natural justice or failure to act with procedural fairness towards persons who would be affected by decision, would render such decision susceptible to judicial review‑‑‑Replacement of Cl.(11) by new one enhancing rent under formula given therein amounted to unreasonableness‑‑ ‑Enhancement in rent under old Cl. (11) for each sub‑unit was 30% over rent assessed and periodical enhancement was to be made after every three years, whereas under new formula rent had been enhanced manifold from 150% to 2240.92%‑‑‑Classification of properties made by Board for purpose of determination of rent was not reasonable‑‑‑ Classification should be based on an intelligible differentia which would distinguish persons or things that were grouped together from those who had been left out; and differentia must have rational nexus to object sought to be achieved by such classification‑‑­Enhancement of rent at such an exorbitant rate was so outrageous that no prudent man could have arrived at it especially when Board had not spent even a single penny on maintenance of properties‑‑‑Amendment made in cl.(11) of Scheme was declared to be ultra vires of parent Act and without lawful authority and of no legal effect and also discriminatory by High Court in exercise of its Constitutional jurisdiction.

PLD 2001 SC 1; PLD 1997 SC 582; PLD 2002 Kar. 60; PLD 1988 Kar. 279; PLD 1986 Kar. 397; PLD 1988 SC 416; PLD 1989 SC 613; PLD 1982 SC 174; PLD 1991 SC 1034; PLD 1973 SC 49; PLD 1957 SC 157; PLD 1958 SC 41; 1999 SCMR 467; 1999 SCMR 1072; 1997 SCMR 1854; 1985 SCMR 365; 1993 SCMR 1533; 2002 SCMR 312; Jehanzeb Khan and another v. Federation of Pakistan through Secretary, Law Justice and Parliamentary Affairs, Islamabad and 5 others 1999 MLD 2505; I. A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Zaheerud Din and others v. The State and others 1993 SCMR 1718; Mst. Aziz Begum and others v. Federation of Pakistan and others PLD 1990 SC 899; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Council of Civil Service Unions v. Minister for the Civil Services (1984) 3 All ER '935; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd., Rawalpindi PLD 1991 SC 14; Collector of Customs, Excise and Sales Tax, Peshawar and 3 others v. Messrs Flying Kraft Paper Mills (Pvt.) Ltd. 1999 SCMR 709; Minister of Health v. R. Ex parte Yafee (1931) AC 494; Jamshed Waheed v. Government of Punjab through Secretary, Excise and Taxation, Lahore and 5 others PLD 2001 Lah. 395; Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 2 All ER 680 and M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Power to issue Notification, Orders, Rules or Bye‑laws would include power to add, amend, vary or rescind Orders, Rules or Bye‑laws‑‑‑Delegated Legislation could be described as orders, rules, regulations, schemes, licences and instruments‑‑‑Any nomenclature could be used by the enabling Act‑‑‑Term "scheme" was used where power was given to make detailed arrangements for some matter considered to be in need of general statutory administration‑‑‑Scheme/bye‑laws could be struck down as ultra vires on five main grounds if statutory procedure prescribed for making them, had not been followed; if they were repugnant to provisions of some other statute; if they conflicted with parent Act itself; if they were uncertain, and if they were unreasonable‑‑‑Item of delegated Legislation was, by a paradox, grant of executive power to a person or body under legislative powers conferred by enabling Act‑‑‑Vagueness, ambiguity, arbitrariness and uncertainty could render a regulation/ scheme void.

Saleh Muhammad v. Traffic Manager, Port Trust, Karachi PLD 1961 (W.P.) Kar. 349; S.M. Sharif v. Federation of Pakistan PLD 1981 Lah. 74 and Hashwani Sales anti Services Limited v. Karachi Building Control Authority PLD 1986 Kar. 393 ref.

Sh. Iftikhar Ahmad for Petitioner.

Babar Ali for Respondents.

Ch. Sultan Mansoor, Dy. A.‑G.

Dates of hearing: 29th May; 5th and 6th June, 2002.

2002 C L C 1838

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

Maj. (Rtd.).ISHTIAQ MAHMOOD‑‑‑Petitioner

versus .

Mst. ZAREEN GUL and others‑‑‑Respondents

Writ Petition No. 15390 of 1997, decided on 25th July, 2002.

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

‑‑‑‑S.17‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑High Court does not enjoy any supervisory jurisdiction under S.115, C.P.C. on the proceedings under West Pakistan Family Courts Act, 1964.

(b) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 9‑‑‑West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R.3‑‑‑Application for maintenance allowance before Chairman, Arbitration Council‑‑‑Chairman, Arbitration Council had no authority in law to grant maintenance beyond the period applied for.

(c) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 9‑‑‑West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R.3‑‑‑Constitution of Pakistan (1973), Art :199‑‑‑Constitutional petition‑‑‑Application for maintenance‑‑‑Divorce had taken place between the parties and both the parties had remarried‑‑‑All the three children from the wedlock were brought up by the father who had retired from service‑‑‑Nothing was available on record to show the reasonable and cogent proof of the income of the man who had been in critical financial position for sometimes and spouses during their married life had to sell some jewellery to overcome the financial crisis‑‑‑Chairman, Arbitration Council had not asked the parties questions to determine their means of income and fixed the maintenance allowance‑‑‑Validity‑‑‑Chairman of the Arbitration Council committed a glaring legal error which was apparent in his order‑‑‑High Court being the Court of equity and natural justice had to take note of illegalities committed by the Tribunal below and rectify the same beyond technicalities.

(d) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 10‑‑‑Dower‑‑‑If it is proved on record that the husband has refused to pay prompt dower after demand by wife she is justified to live separately.

Mst. Muhammadi v. Jamil‑ud‑Din PLD 1960 (W.P.) Kar. 663 ref.

(e) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑Ss. 9 & 10‑‑‑Maintenance‑‑‑Non‑payment of dower ‑‑‑Effect‑‑­Incumbent upon the husband to maintain his wife and he is not absolved of his liability to maintain her even though she be not residing with him provided she has a lawful excuse or a legal right to refuse to live with her husband on account of non‑payment of prompt dower.

Nur‑ud‑Din Ahmad v. Masuda Khanum PLD 1957 Dacca 242 ref.

(f) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑Ss. 8, 9 & 10‑‑‑Constitution of Pakistan (1973) Art.199‑‑­Constitutional petition‑‑‑. Khula' and "Mubaraat"‑‑‑Distinction‑‑­Maintenance‑‑‑Divorce on mutual decision of the parties is Khula' Mubaraat‑‑‑Non‑payment of prompt dower‑‑‑Effect‑‑‑Circumstances, in the present case, showed that dower was left by the wife in lieu of Khula' Mubaraat‑‑‑Wife was entitled for the maintenance for the period she was in the wedlock of her husband‑‑‑Maintenance was not to be determined without any proof of the income of the husband‑‑‑Principles‑‑‑Where the Chairman, Arbitration Council had determined the quantum of maintenance to be paid by the husband without any proof of his income, High Court modified the judgment and decree passed by the Chairman accordingly.

There is a difference between Khula' and Mubaraat and the main distinction between a Khula' and Mubaraat is that in the former the aversion is on the side of the wife and she desires a separation but in the latter the aversion is mutual and both sides desire separation. Secondly, in a divorce by Khula' some consideration must be given by the wife to the husband for her release from the marital tie. It is in effect an offer from the wife for her release on payment of compensation and, therefore, in the circumstances the divorce ultimately agreed upon by the parties' was only a Mubaraat and not Khula', then the wife is entitled for the half of the benefits and divorce takes place and it is also established that the wife was not paid the prompt dower. The circumstances show that the dower was left by the wife in lieu of Khula Mubaraat but she is entitled for maintenance for the period she was in the wedlock of her husband but the quantum of maintenance was determined without any proof of the income of Or husband, therefore, the judgment and decree passed by the Chairman, Arbitration Council was modified by the High Court from Rs.5,000 to Rs.2,000 and it was granted from the period 1‑1/2 years prior to the filing of the application till the divorce had become effective.

Mst. Sharifan Bibi v. The Chairman, Union Council Ram Thuman and 2 others PLD 1994 Lah. 20; Dr. Akhlaq Ahmad v. Mst. Kishwar Sultana and others PLD 1983 SC 169; Muhabbat Hussain v. Mst. Naseem Akhtar and others 1992 PSC 1034; Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Parveen Akhtar v. Muhammad Afzal and another 1987 CLC 1668; Muhammad Faryad v. Muhammad Asif PLD 1993 Lah. 469; Brig. (Retd.) Mazharul Haq and another v. Messrs Muslim Commercial Bank Ltd., Islamabad and another PLD 1993 Lah. 706; Muhammad Saleem v. Zeba Abdul Hameed and 2 others 1995 MLD 988; Muhammad Ashraf v. Mst. Bushra Shaheen and others 1994 Law Notes (Lahore) 1153; Muhammad Javed Akhtar v. Collector and others 1991 CLC 1356; Muhammad Khalid v. Shamsa Taskeen and others 1989 ALD 389(1); Tayyab Khan v. Nadia Khan 2000 CLC 558; Nur‑ud‑Din Ahmad v. Masuda Khanam OLD 1957 Dacca 242; Mst. Muhammadi v. Jamil‑ud‑Din PLD 1960 (W.P.) Kar. 663 and Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456 ref.

Muhammad Akbar Cheema for Petitioner.

Ijaz Ahmad Chaudhry for Respondent No. 1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 25th July, 2002.

2002 C L C 1850

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

DILNAWAZ‑‑‑ Petitioner

Versus

Miss AMBAR GULL KHAN ‑‑‑Respondent

Writ Petition No. 2781 of 2001, decided on 17th July, 2002.

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

‑‑‑‑Ss. 7, 14 & 2‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Suit for recovery of dower and maintenance‑‑‑Appeal‑‑‑Family Court is not possessed with the power to review or reopen the case on merits‑‑‑ Provisions of S.14, West Pakistan Family Courts Act, 1964 give one right of appeal to the aggrieved party against the judgment and decree or decision passes] by the Family Court‑‑‑Petitioner who had filed Constitutional petition against order of the Family Court was possessed with remedy of appeal and could not invoke the Constitutional jurisdiction of High Court through bypassing the remedy of appeal‑‑‑Provisions of West Pakistan Family Courts Act, 1964 do not furnish a remedy of review to the superior Courts‑‑‑High Court enjoys Constitutional jurisdiction to look into the matters, which are passed without lawful authority and jurisdiction but orders or judgments passed within lawful authority and jurisdiction are not open to Constitutional jurisdiction.

Taffazul H. Rizvi for Petitioner.

2002 C L C 1852

[Lahore]

Before Jawwad S. Khawaja and Abdul Shakoor Paracha, JJ

PRINCE FLYING COACH, FAISALABAD through Proprietor and 2 others‑‑‑Appellants

versus

MUHAMMAD IQBAL and 8 others‑‑‑Respondents

Intra‑Court Appeal No.716 of 2000 in Writ Petition No. 13515 of 1993, heard on 28th March, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑­Constitutional jurisdiction of High Court under Art. 199 of the Constitution‑‑‑Scope‑‑‑Authorities had totally denied construction of bus stand over the green belt which had polluted environmental atmosphere and stated that land in question was State land which earlier was in possession of Irrigation Department for use of silting Tank‑‑‑Land in dispute, according to Revenue Record was owned by the Provincial Government‑‑‑Issue as to whether construction of bus stand over the land in dispute had polluted environmental atmosphere and had frustrated use of green belt, was a disputed question of fact resolution whereof would entail a detailed enquiry‑‑‑Jurisdiction of High Court under Art. 199, Constitution of Pakistan (1973) would not be attracted and it would be for the Commissioner or Deputy Commissioner concerned to decide the said issue by giving opportunity of hearing to the parties‑‑‑Appeal against the order of High Court was dismissed.

Ahmad Waheed Khan for Appellants.

Maqbool Elahi Malik, A.‑G. and Badar‑ul‑Ameer for Respondents.

Date of hearing: 28th March, 2002.

2002 C L C 1862

[Lahore]

Before Muhammad Sair Ali, J

NAZIR AHMAD and 8 others‑‑‑Appellants

versus

Mst. MAJEEDA BEGUM and 12 others‑‑‑Respondents

First Appeal from Order No. 173 of 2001, heard on 25th February, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R.11‑‑‑]Rejection of plaint‑‑‑Trial Court after dismissal of plaintiff's application for restoration of suit, had also rejected plaint upon application of the defendants‑‑‑Counsel for defendants appearing at pre-admission stage of appeal had conceded that order passed by Trial Court was illegal to the extent of rejection of plaint and stated that application for rejection of plaint filed by defendants be dismissed as withdrawn‑‑‑In view of conceding statement of the counsel for defendants and withdrawal of application under O.VII, R.11, C.P.C., application for rejection of plaint would stand dismissed as withdrawn and observations qua rejection of plaint in order of Trial Court would stand deleted and modified.

Muhammad Nawaz for Appellants.

Ch. Muhammad Ashraf Wahla for Respondents.

Date of hearing: 25th February, 2002.

2002 C L C 1865

[Lahore]

Before Ch. Ijaz Ahmed and Mian Saqib Nisar, JJ

MUHAMMAD SARWAR and 3 others‑‑‑Appellants

versus

JAHANGIR AHMAD and 5 others‑‑‑Respondents

Regular First Appeals Nos. 157 of 1993 and 580 of 1999, heard on 17th January, 2002.

(a) Islamic law‑‑‑

‑‑‑‑Gift‑‑‑Gift of property‑‑‑Plaintiffs had claimed that defendant/alleges donor vide oral gift had gifted away suit property in their favour for services rendered by them to donor being his nephews by way of lookinj after him who was issueless and was about 85 years of age‑‑‑No written document was on record with regard to alleged gift except acknowledgment of gift‑‑‑Record had not proved that the factum of gift was given effect to by any official Department of the State and no entry of said gift was found in Revenue Record‑‑‑Validity‑‑‑For a valid gift, three factors must be established; firstly offer by donor; secondly acceptance by donee and thirdly delivery of possession‑‑‑Delivery of possession under gift which was sine qua non for a valid gift, had not been established‑‑‑Plaintiffs having failed to bring on record any confidence‑inspiring oral or documentary, evidence in proof of their claim, their suit was rightly dismissed by Trial Court.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑Ss. 122 & 123‑‑‑Gift, validity of‑‑‑Essentials‑‑‑For a valid gift, three factors must be established; firstly offer by donor; secondly acceptance by donee and thirdly delivery of possession of gifted property.

Ch. Ghulam Hussain for Appellants.

Masud Abid and Ch. Abdul Hafeez for Respondents.

Date of hearing: 17th January, 2002.

2002 C L C 1875

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASLAM through Legal Heirs and another‑‑‑Appellants

versus

ABDUL HAQ and 3 others‑‑‑Respondents

Regular Second Appeal No.44 of 2000, heard on 2nd April, 20002.

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

‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement‑‑‑Trial Court decreed the suit which was confirmed in appeal but none of the two judgments could be said to be speaking orders containing reasons for conclusion arrived at by the said Courts‑‑‑Question raised before Court of was question of law which could have been raised in first in second appeal and had to be decided in the light of after properly appraising the same‑‑‑No reading and evidence was available on record at all by any of the two Courts‑‑‑Case was remanded back to Trial Court by the High Court to decide afresh after framing additional issues and affording parties opportunity to produce. evidence on those issues and to decide matter according to law.

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

‑‑‑‑O. 1, Rr.2 & 10‑‑‑Impleading of party‑‑‑Fresh institution of suit against such added party‑‑‑Suit against added party was to be deemed to have been instituted only when it was impleaded.

Shahzad Shoukat for Appellant.

Arif Chaudhry for Respondents Nos.1 to 3

Nemo for Respondent No.4.

Date of hearing: 2nd April, 2002

2002 C L C 1887

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD ASLAM SHAH‑‑‑Petitioner

versus

PAK ELECTRON (PVT.) LTD. ‑‑‑Respondent

Civil Revision No.360 of 2002, decided on'18th April, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XVII, R.3 & O.XXXVII, Rr.2, 3 & S.115‑‑‑Suit for recovery of amount‑‑‑Closing of evidence ‑‑‑Revisional jurisdiction ‑‑‑Scope‑‑­Defendant, on the last date fixed for production of evidence requested for further adjournment for producing another witness whose particulars could not be disclosed by defendant‑‑‑Court declined request of defendant and closed his evidence‑‑‑Validity‑‑‑Court, in closing evidence of defendant neither had committed any illegality nor any irregularity‑‑­Jurisdiction under S.115, C. P. C. could not be invoked to interfere with discretion regarding matters which were within discretion of subordinate Courts‑‑‑Order closing evidence of defendant/petitioner passed by Court below had shown that it was neither a case of irregular exercise, non­-exercise or illegal assumption of jurisdiction‑‑‑No interference by way of revision was warranted in the case, in circumstances.

Asghar Ali Ansari for Petitioner.

2002 C L C 1894

[Lahore]

Before Tanvir Bashir Ansari, J

ALLAH DITTA‑‑‑Petitioner

versus

FAZAL MUHAMMAD and others‑‑‑Respondents

Civil Revision No. 386 of 1987, decided on 11th February, 2002

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 3(5)‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Registration Act (XVI of 1908), S.17‑‑‑Pre‑emption suit‑‑‑Oral sale‑‑‑Provisions of Transfer of Property Act, 1882 and Registration Act, 1908‑‑­Applicability‑‑‑Suit property was situated in the State of Bahawalpur‑‑­Pre‑emptor assailed the sale on the ground that the same was oral and since provisions of Transfer of Property Act, 1882 and Registration Act, 1908 were applicable to erstwhile State of Bahawalpur, the sale was not effective ‑‑‑Validity‑‑‑Pre‑emptor had filed the pre‑emption suit on the basis of sale which according to the pre‑emptor himself was evidenced by mutation‑‑‑Plea raised by the pre‑emptor was not accepted by High Court as the same would lead to non‑suiting the pre‑emptor himself on the ground that no valid sale through a registered sale‑deed was in the field‑.‑‑For the purpose of pre‑emption oral sale was pre‑emptible regardless of the provisions of S.54 of the Transfer of Property Act, 1882.

Muhammad Masud Khan Bhatti v. Mst. Ghulam Fatima 1987 SCMR 1206; Custodian, Evacuee Property, West Pakistan, Lahore v. Rats Ghazi Muhammad PLD 1973 SC 537; Barkat Ali v. The Custodian of Evacuee Property 1974 SCMR 69 and Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 ref.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 3(5)‑‑‑Sale subject‑matter of pre‑emption ‑‑‑Scope‑‑‑Sale which is subject‑matter of a suit for pre‑emption depends upon intention of the vendor and the vendee ‑‑‑If the parties intend a sale to be through oral transaction, such sale would be covered under the definition of "sale" as contemplated by the Punjab Pre‑emption Act, 1913, and is pre‑emptible.

Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 fol.

(c) Punjab pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 3(5)‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Word sale'‑‑­Sale subject to exercise of right of pre‑emption ‑‑‑Sale consideration partly paid‑‑‑Scope‑‑‑Definition ofsale' in Punjab Pre‑emption Act, 1913, is wider than definition given in the Transfer of Property Act, 1882‑‑‑Even in the latter Act sale means transfer of ownership in exchange for a price paid or promised or part paid and part promised‑‑­Where sale consideration was partly made, such sale would amount to "sale" susceptible to a right of pre‑emption.

(d) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 3(5) & 30‑‑‑Limitation Act (IX of 1908), Art.10‑‑‑Sale subject to pre‑emption ‑‑‑Consideration amount partly paid with delivery of possession‑‑‑ Limitation‑‑‑ Computation ‑‑‑Consideration amount was partly paid, possession was delivered to vendee on 12‑6‑1980, and mutation in the name of vendee was‑attested on 9‑8‑1980‑‑‑Suit for pre‑emption was held by Trial Court to be within limitation as the sale was not completed on 12‑6‑1980‑‑‑Appellate Court allowed the appeal and dismissed the suit being time‑barred‑‑‑Plea raised by the pre‑emptor was that as the sale was not complete on the day of delivery of possession, period of limitation would be calculated from the date of attestation of mutation‑‑­Validity‑‑‑Where the consideration amount was partly paid, such sale would be valid for the purpose of Art. 10 of Limitation Act, 1908 and S.30 of Pre‑emotion Act, 1913, if accompanied by delivery of possession to the vendee under the sale‑‑‑Period of one year was liable to be calculated from the date of delivery of possession‑‑‑Suit for pre‑emotion filed beyond one year of the transfer of the possession under the sale was barred by time‑‑‑Appellate Court rightly dismissed the suit being time­barred‑‑‑Revision was dismissed in circumstances.

Muhammad Inayat and 5 others v. Mst. Nisar Fatima PLD 1994 SC 120 and Abdul Haq and 4 others v. Sardar Shah and others 1994 SCMR 1238 ref.

Ch. Abdus Sattar for Petitioner.

Aejaz Ahmed Ansari for Respondents.

Date of hearing: 6th November, 2001.

2002 C L C 1900

[Lahore]

Before Mian Saqib Nisar, J

ALI MUHAMMAD and another‑‑‑Petitioners

versus

MUHAMMAD TUFAIL and 3 others‑‑‑Respondents

Writ Petition No.4316 of 1998, decide don 6th March, 2002

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Punjab Pre‑emption Act (IX of 1991), S.34(2)‑‑‑Pre‑emption suit‑‑‑ Proceedings under the provisions of repealed Punjab Pre‑emption Act, 1913‑‑‑Criteria.

For deciding pending proceedings after Punjab Pre‑emption Act, 1913, was repealed following questions were formulated:‑‑

(1) Whether a pre‑emption suit not decided by trial Court before 31st July, 1986, could be decreed after the said date?

(2) Whether plaintiff in a pre‑emption suit, having failed in trial forum and having remained unsuccessful in obtaining a decree in his favour even in appeal, revision or writ petition before 31st July, 1986 can be granted a decree by any of the higher forums including the Supreme Court where his case was pending on that date?

(3) Whether a plaintiff having failed to obtain a decree in the trial forum before 31‑7‑1986 and having challenged his failure in the higher forum where it was still pending without any decree in his favour till then, can be granted a decree for the first time?

(4) Whether a plaintiff having obtained a pre‑emption decree in the trial forum before 31‑7‑1986 and a challenge to such a decree was pending before Supreme Court from a lower forum in appeal, revision or writ petition, can (decree‑holder) be non‑suited on the ground that the relevant law ceased to have effect on 31st July, 1986?

(5) Whether a plaintiff, having failed in the trial forum had in appeal or other proceedings in a higher forum, succeeded in obtaining a decree before 31st July, 1986, can be non‑suited in the still higher forum including Supreme Court, on the ground that the relevant law had ceased to have effect on 31st July, 1986?

(6) Whether a plaintiff having obtained a decree for pre‑emption in the trial forum lost the case in higher forum, when pressing his appeal, revision or writ petition, can defend the decree granted in his favour before 31st July, 1986 and seek its restoration?

(7) Whether a plaintiff having obtained a decree before 31st July, 1986, a higher forum remanded the case for fresh decision, will be entitled to seek its restoration regardless of the fact, whether the matter is pending before the trial or any higher forum?

Sardar Ali's case PLD 1988 SC 287 ref.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 34(2)‑‑‑Punjab Pre‑emption Act (I of 1913), S.21‑‑‑Pre‑emption suit‑‑‑ Proceedings‑‑‑Repeal of Punjab Pre‑emption Act, 1913‑‑‑Decree passed without jurisdiction‑‑'‑Judgment by Supreme Court in Sardar Ali's case reported as PLD 1988 SC 287‑‑‑Applicability‑‑‑Protection was made available by Supreme Court in Sardar Ali's case to those decrees which were modified by higher forum under Punjab Pre‑emption Act, 1913‑‑‑‑ Decree passed without jurisdiction; however, did not fall within the category mentioned by Supreme Court in the judgment and the same could not be equated to the erroneous or illegal decree.

Sardar Ali's case PLD 1988 SC 287 distinguished.

(c) Punjab Pre‑emption Act (IX of 199I)‑‑‑

‑‑‑‑S. 34(2)‑‑‑Punjab Pre‑emption Act (I of 1913), S.21‑‑‑Civil Procedure Code (V of 1908), ONII, R.11‑‑‑Coqstitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Rejection of plaint ‑‑‑Pre‑emption suit‑‑‑Proceedings under the provisions of Punjab Pre‑emption Act, 1913‑‑‑Decree passed before 31‑7‑1986, by Court having no jurisdiction‑‑‑High Court in earlier round of litigation, set aside the decree passed by Trial Court as the same was passed without jurisdiction and the matter was remanded for decision afresh‑‑‑In post‑remand?/proceedings, vendor filed application under O. VII, R.11, C. P. C. on the ground that the earlier degree passed by the Trial Court was not a decree as mentioned in S.34 of Punjab Pre‑emption Act, 1991, therefore, the matter could not be proceeded‑‑‑Trial Court dismissed the application and the Appellate Court also declined to reject the plaint for the reason that High Court had remanded the case for decision afresh‑‑‑Validity‑‑‑Where decree had been declared to have been passed by the Trial Court having no jurisdiction, the same would not create any right in the decree‑holder to sustain any action under the previous law‑‑‑Decree which was without jurisdiction since its inception would be non‑existence altogether and would merely be a simple piece of paper‑‑‑High Court, in declaring such decree as non‑existent relied on the settled law where executing Court could not go behind a decree, but if a decree was void, on account of lack of inherent jurisdiction, the Court would refuse to execute the same‑‑‑Plea raised by the vendors in the application under O.VII, R.11, C.P.C. was never a moot point or was resolved by High Court, therefore, even if the case was remanded for retrial it would not preclude the, vendors from defending the cause on the legal ground‑‑‑Orders passed by the Courts below were set aside and the matter was remanded to the Trial Court for decision afresh on the application under O.VII, R.11, C.P.C.‑‑‑Constitutional petition was allowed in circumstances.

D.A. Gill and 3 others v. Lahore Diocesan Trust Association and 39 others 1986 MLD 942; Nazir Begum and others v. Fazal Dad and others 1999 SCMR 210; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Province of the Punjab and others and Abdul Majeed 1983 PSC 394; Chief Engineer Building Department v. Messrs Pakistan National Construction 1988 SCMR 723 and Sultan Khan alias Sultan Ahmed and others v. Mst. Sardar Bibi and other 1986 CLC 74 ref.

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

‑‑‑‑S. 47‑‑‑Execution of decree‑‑‑Powers of Executing Court‑‑‑Decree without jurisdiction‑‑‑Effect‑‑‑Executing Court cannot go behind a decree but if a decree is void, on account of lack of jurisdiction, the Executing Court can refuse to execute the same.

A.K. Dogar for Petitioners

Ch. Muhammad Aslam Sindhu for Respondents

Date of hearing: 1st February, 2002

2002 C L C 1964

[Lahore]

Before Ch. Ijaz Ahmad, J

Ch. ARFAN JABBAZ alias Ch. ZAFAR IQBAL‑‑‑Petitioner

versus

Mst. RIZWANA JABEEN and 2 others‑‑‑Respondents

Writ Petition No. 19665 of 2000, heard on 2nd August, 2002.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Raising of new plea‑‑‑Plea of lack of jurisdiction‑‑‑Failure to raise such plea in earlier proceedings‑‑­Effect‑‑‑As the petitioner did not raise point of jurisdiction in the contents of the revision petition filed by him, he was not permitted to argue the same before High Court.

John E. Brown Lee v. Vivan Mac Milian AIR 1940 PC 219 and Ashfaq Rehman Khan v. Ch. Muhammad Afzal PLD 1971 SC 766 ref.

(b) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑Ss. 1(2) & 9‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintenance, grant of‑‑‑Period of Iddat‑‑‑Duration‑‑‑Plea of lack of jurisdiction in Court raised‑‑‑Such plea was not raised before Revisional Court‑‑‑Effect‑‑‑Petitioner was a British national who had divorced the respondent‑‑‑Proceedings for recovery of past maintenance and that of the period of Iddat were initiated under S.9 of Muslim Family Laws Ordinance, 1961‑‑‑Both the Courts below granted past maintenance alongwith period of Iddat for 90 days‑‑‑Grievance of petitioner was that the Courts below had wrongly assumed jurisdiction in the matter as the petitioner was not a Muslim citizen of Pakistan and period‑of Iddat was 39 days which was wrongly fixed as 90 days‑‑‑Validity‑‑‑Petitioner did not raise point of jurisdiction in the contents of the revision petition filed below, therefore, he was not permitted to argue the same before High Court in exercise of Constitutional jurisdiction‑‑‑Judgments of both the Tribunals below to the extent of period of Iddat were not in accordance with the dictum laid down by Supreme Court in case titled Allah Dad v. Mukhtar reported as 1992 SCMR 1273‑‑‑High Court modified judgments passed by both the Tribunals below to the extent that instead of granting maintenance of Iddat period consisting of 90 days, the same was reduced to 39 days‑‑‑Petition was disposed of accordingly.

Sabohi Sarfraz's case 1994 MLD 1115 and Masood Ahmad Malik's case 1991 SCMR 681 ref.

Allah Dad v. Mukhtar 1992 SCMR 1273 fol.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Concurrent findings of fact by the Tribunals below‑‑‑Constitutional petition was not maintainable against such findings.

Khuda Bakhsh's case 1974 SCMR 279 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Substituting findings of Tribunals below with the findings of High Court ‑‑‑Validity‑‑­High Court has no jurisdiction to substitute its own findings in place of the findings of Tribunals below in exercise of its Constitutional jurisdiction.

M. Musaddaq's case PLD 1973 Lah. 600 and Qaisar Saif Ullah's case PLD 1994 SC 859 ref.

Qazi Misbah‑ul‑Hassan for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd August, 2002.

2002 C L C 1974

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

ALLAH DITTA and another‑‑‑Petitioners

versus

LAKHA ‑‑‑ Respondent

Civil Revision No.2607 of 1995, decided on 15th July, 2002.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 15‑‑Punjab Pre‑emption Act (IX of 1991), Ss.6 & 34(2)‑‑‑Words "owner of estate" and "owner in estate"‑‑‑Distinction‑‑‑Owner of estate‑‑‑Determining factor‑‑‑Superior right of pre‑emption, claim of‑‑‑Principles‑‑‑In deciding that a person is owner of estate for the purpose of pre‑emption, the determining factor is whether the area owned by him is or is not assessed to land revenue‑‑‑Words "owner of the estate" are not synonymous with the words "owner in estate"‑‑‑If a person owns property which is assessed to land revenue, and for which, as a owner, he is responsible to pay the amount assessed, such person is an owner within the meaning of S.15 of Punjab Pre‑emption Act, 1913‑‑‑In order to claim superior right of pre‑emption under S.15 of Punjab Pre‑emption Act, 1913, within the meaning of S.34(2) of the Punjab Pre‑emption Act, 1991, such person has to prove that he is owner of such piece of agricultural land in disputed village which is assessed to land revenue.

(b) Words and phrases‑‑‑

‑‑‑‑‑‑“Co‑sharer"‑‑‑Defined.

Ashiq Hussain v. Mst. Parveen Akhtar 1989 CLC 1557; Muhammad Alam Khan v. Muhammad Aslam Khan PLD 1984 (Azad J&K) 51 ‑ Ghulam Begum v. Muhammad Khan PLD 1984 SC (AJ&K) 38; Aiyar s Judicial Dictionary; Mohini Mohan Saha v. Meajan AIR 1926 Cal. 333; Inder Singh v. Om Prakash 1989 Punj. LR 754 P&H; Sher Singh v. Nandlal AIR 1947 Lah. 184 and Ghulam Hussain Arshad and others v. Allah Ditta and others 1993 SCMR 1486 ref.

(c) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 21‑‑‑Right of pre‑emption, exercise of ‑‑‑Co‑owner and co­ sharer in Khata‑‑‑Jamabandi, a proof of co‑ownership‑‑‑Non‑mention of assessment of land revenue ‑‑‑Pre‑emptors claimed their superior right of pre‑emption on the basis of being co‑sharer in the Khata with vendor‑‑­Trial Court decreed the suit in favour of the plaintiffs while Appellate Court allowed the appeal and dismissed the suit ‑‑‑Validity‑‑‑Pre‑emptors were mentioned in Jamabandi and appeared in the joint Khata of the vendor‑‑‑Assessment of land revenue was not mentioned against the names of the pre‑emptors in Jamabandi but such non‑mention could not debar the pre‑emptors from claiming their rights of ownership and co­-sharership in the Khata as even against vendor no mention of assessment of land revenue existed in the Revenue Record‑‑‑Appellate Court had wrongly decided the right of co‑sharership of pre‑emptors and had erroneously applied its own an4inoly of ownership in estate in agricultural land which was neither supported by law nor by the provisions of Punjab Pre‑emption Act, 1913‑‑‑High Court set aside the judgment and decree passed by the Appellate Court and maintained the judgment and decree passed by the Trial Court accordingly.

Qazi Khurshid Alam for Petitioners.

Allah Wasaya Malik for Respondent.

Date of hearing: 11th July, 2002.

2002 C L C 2001

[Lahore]

Before Tanvir Bashir Ansari, J

Mst. SHARAM‑‑‑Petitioner

versus

TAJ MUHAMMAD and others‑‑‑Respondents

Civil Revision No‑203‑D of 1990, heard on 17th March, 2002.

(a) Punjab Laws Act (IV of 1872)‑‑‑

‑‑‑‑S. 5‑‑‑Inheritance‑‑‑Custom, effect of‑‑‑Where the parties are Muslims, the Muslim Personal Law and Hindu Law in cases where the parties are Hindu is the rule of decision in matters relating to succession under S.5 of Punjab Laws Act, 1872‑‑‑Such decision is subject to any modification or alteration which may have effectively taken place through custom.

(b) Land Records Manual‑‑‑

‑‑‑‑Shart Wajibul Arz‑‑‑Islamic Law‑‑‑Inheritance‑‑‑Following of custom‑‑‑Exclusion of females‑‑‑Proof‑‑‑Divine Law of inheritance in, respect of Muslims has been acknowledged in the Wajibul Arz‑‑‑Neither it is permissible nor justifiable to whittle down the effect of Divine Law on the assumption of custom‑‑‑Where both the parties failed to indicate that any custom excluding the females was consistently followed in the Mauza (village), mere entry in Wajibul Arz, the genuineness of which was not above board and which was unsupported by any cogent and consistent evidence of custom, was not entitled to any credence.

(c) Land Records Manual‑‑‑

‑‑‑‑ Shart Wajibul Arz‑‑‑Right, subject‑matter of Wajibul Arz‑‑‑Scope‑‑­Custom relating to succession, a subject‑matter of Shart Wajibul Arz‑‑­Validity‑‑‑Shart Wajibul Arz under the Land Record Manual relates to terms and conditions as settled amongst the landowners or settlers in matters pertaining to the rights and liabilities in respect of the estate‑‑­Rights which properly be the subject‑matter of Wajibul Arz are the manner regarding which Shamlat Deh land is to be utilized, the manner of payment of produce, matters relating to irrigation, matters relating to rights of cultivators, grazing rights, whether there is any Nazool property in the estate and the like‑‑‑Custom relating to succession is not truly a subject‑matter of Shart Wajibul Arz.

(d) Custom (Punjab)‑‑‑

‑‑‑‑Rewaj‑i‑Am‑‑‑Proof‑‑‑Share of Muslim female in inheritance‑‑‑In order to rely upon a custom, it must be proved that the alleged practice has continued for such a length of time continuously and uninterruptedly, so as to confer upon the practice, the common will and intention of the entire body of the owners of the estate‑‑‑In absence of such evidence and particularly when no copy of Riwaj‑i‑Aam has been proved, a female heir of a propositus cannot be deprived of her Muslim Law share of inheritance, which vests in her automatically upon the death of propositus.

(e) Punjab Laws Act (IV of 1872)‑‑‑

---‑S. 5‑‑‑Muslim Personal Law (Shariat) Application Act (XXXVI of 1937), S.2‑‑‑Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)‑‑‑Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) [as amended by Act XI of 1951]‑‑‑West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) [as amended by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983)], S.2‑A‑‑‑Succession of deceased Muslim‑‑‑Replacing of custom by Islamic Law‑‑‑History discussed‑‑‑Muslim male, no matter when he died or whether his property was self‑acquired or ancestral is devolved upon all of his Muslim heirs in accordance with the Islamic Law of Inheritance.

(f) Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑‑Exclusion of daughter from inheritance‑‑‑Bar of limitation‑‑‑Plaintiff being real daughter of the deceased filed suit for declaration to the effect that she was wrongly excluded from the inheritance of her father‑‑‑Defendant being real brother of the plaintiff raised the plea of custom whereby daughters were not entitled to inheritance under Islamic Law‑‑‑Mutation of inheritance was attested including the plaintiff‑‑‑Trial Court found that the parties were bound by custom and the suit of the plaintiff was dismissed as time‑barred‑‑­Judgment and decree passed by the Trial Court was maintained by Appellate Court‑‑‑Validity‑‑‑Plaintiff, in the present case, was entitled to 1/3rd share by way of inheritance and was deemed to be a co‑owner in the estate immediately upon the death of the deceased‑‑‑Limitation was not a bar to her suit‑‑‑Defendant was only entitled to two‑third share in the estate of the deceased and he was entitled to have his share and any alienation was ineffective to the extent of 1/3rd share in the estate‑‑­judgments and decrees passed .by the Courts below were set aside and the suit of the plaintiff was decreed in her favour to the extent of her share in the estate.

M.A. Rasheed Chaudhry for Petitioner.

Ijaz Ahmad Chaudhry and Syed Muhammad Anwar Shah for Respondents.

Date of hearing: 12th March, 2002.

2002 C L C 1

[Peshawar]

Before Shahzad Akbar Khan and Ejaz Afzal Khan, JJ

AMINA NUZHAT BABAR‑‑‑Petitioner

versus

KHAN SHER ‑‑‑‑Respondent

Writ Petition No. 1886 of 1999, decided on 1st June, 2001.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Ejectment of tenant‑‑‑Bona fide personal need of landlord‑‑­Default in payment of monthly rent‑‑‑Requisite sanction by the Authorities for the reconstruction of the premises was placed on the record and default in payment of monthly rent was proved by the landlady‑‑‑Rent Controller and the Appellate Court dismissed the ejectment petition‑‑‑Validity‑‑‑Appellate Court despite being the first Court of appeal and final Court of fact had not considered the evidence of the landlady on either of the grounds urged by her namely default in payment of rent and personal use for reconstruction‑‑‑Appellate Court had based its findings without reading evidence, erroneous assumption of fact and misapplication of law which was without jurisdiction and lawful authority, because the very condition for the conferment of jurisdiction on a Court or Tribunal was that it should record .its finding on proper application of law and appreciation of evidence‑‑‑Where a finding by a Court or Tribunal was based on misreading, non‑reading of evidence, erroneous assumption of fact and misapplication of law, such finding was liable to be interfered with by High Court in exercise of its Constitutional jurisdiction‑‑‑Judgment and decree passed by the Appellate Court were set aside and the case was remanded to the Appellate. Court for decision afresh‑‑‑Constitutional petition was allowed in circumstances.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 and Muhammad Lehrasab Khan v. Mst. Aqeel‑un‑Nisa and 5 others 2001 SCMR 338 ref.

Iqbal Ahmad Durrani for Petitioner., Hamid Mughal for Respondent.

Date of hearing: 1st June, 2001.

2002 C L C 4

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

ABDUL ZAHIR‑‑‑Petitioner

versus

Haji GULAB ‑‑‑ Respondent

Civil Revision No.243 of 2000, decided on 14th March, 2001.

(a) Administration of justice‑‑‑

‑‑‑‑Judge‑‑‑Duties of‑‑‑Judge cannot evolve any method in discharge of his 'duties according to his own whims and choice or pleasure‑‑­Legislature has laid down and prescribed principles for the conduct of judicial proceedings‑‑‑Judge is not at liberty and free to exercise naked and unretained powers in a despotic manner‑‑‑Judge cannot go beyond his limits and has to perform his job within the four corners of law‑‑‑Judge is supposed to dispense justice and not to hamper justice, and for the sake of substantial justice, he has even to ignore technicalities.

(b) Civil Procedure Code (V of 1948)‑‑‑

‑‑‑‑S. 2(9), O.XX, Rr.1, 2, 3 & O.XLI, R.31‑‑‑Judgment‑‑‑Necessary ingredients‑‑‑Judgment can only be delivered after full hearing or otherwise the same is nullity in the eyes of law‑‑‑Judgment should contain a concise statement of case, the points raised before the Court for determination, detailed reasons for the decision‑‑‑Requirements for complete and valid judgment must be fulfilled even by an ex parte judgment‑‑‑Important ingredient of judgment is that it should be a speaking order consisting of statement of grounds of decision‑‑‑Such requirements are also required to be fulfilled by the Appellate Authority to state complete reasons and findings on each and every issues as framed thereunder‑‑‑Where the Appellate Court had acted as a jury member not discussing the factual and legal aspects of the case, such judgment was violative of O.XX, Rr.1, 2 & 3 etc.

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

‑‑‑‑O. IX, R.13=‑‑Ex parte decree‑‑‑Refusal to set aside the decree‑‑­Defendant's application under O. IX, R.13, C.P.C. was dismissed by the Trial Court and the Appellate Court summarily dismissed the appeal filed by the defendant‑‑‑Contention of the defendant was that the judgment passed by the Appellate Court was not in accordance with the principles of law and procedure‑‑‑Validity‑‑‑Courts were bound to adopt set principles of law and procedure given therein and were to decide the case on merit after affording opportunity to parties‑‑‑In no way and under no circumstances Courts were let free to make mockery and play with the rights of the parties guaranteed under the law and Constitution‑‑­Judgment and decree passed by the Appellate Court were set aside.

Mian Saadullah Jundooli for Petitioner. Maazullah Khan Barkandi for Respondent.

Date of hearing: 14th March, 2001.

2002 C L C 11

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

Syed YAQOOB SHAH and others‑‑‑Petitioners

Versus

ISLAMIC REPUBLIC OF PAKISTAN and others‑‑‑Respondents

Civil Revision No.249 of 1995, decided on 18th June, 2001.

Cantonment Land Administration Rules, 1937‑‑‑

‑‑‑‑Chaps. 1 & 2‑‑‑Land in Cantonment areas‑‑‑Ownership and management‑‑‑Land adjacent to holy shrine‑‑‑Plaintiffs asserted that the defendants were intending to encroach upon the land of the holy shrine which was under their possession since long‑‑‑Suit was decreed in favour of the plaintiffs but the Appellate Court set aside the judgment and decree passed by the Trial Court‑‑‑Disputed land was situated in Cantonment areas‑‑‑ Plaintiffs claimed right over the disputed land on the basis of entries in Revenue Record‑‑‑Validity‑‑‑Land in cantonment areas except the superstructure, vested and owned by the Government of Pakistan after the promulgation and enforcement of Cantonments Act, 1924, and Cantonment Land Administration Rules, 1937, and all land and property in such area had been taken over and acquired by the Ministry of Defence, Government of Pakistan‑‑‑Any previous title holder having right in the property had automatically vanished and land was now under the purview of the Government of Pakistan for fresh disposal‑‑‑High Court restrained the defendants from interfereing in the covered structure of the shrine already existing and directed the Authorities to correct and amend the General Land Register accordingly‑‑‑As a mark of respect and to keep and maintain the sanctity of the holy shrine, High Court further directed the Authorities to convert the disputed area for the purpose of welfare .project preferably for dispensary for the convenience of the inhabitants of the area‑‑‑Construction of the dispensary would be charitable and philanthropic step strictly for the larger interest of the community and would be continuing and everlasting charity on the part of the defendants whereby the defence personnel, civilians, needy persons/ passers‑by etc. could be treated in the event of emergency or in odd hours.

1992 SCMR 2093 and 1968 SCMR 213 ref.

Nasir Mehfooz Khan for Petitioners.

Abdul Hakeem Khan Kundi, Dy. A.‑G. for Respondents.

Dates of hearing: 11th December, 2000 and 25th May, 2001.

2002 C L C 20

[Peshawar]

Before Talaat Qayyum Qureshi, J

Syed RAHIM and others‑‑‑Petitioners

versus

MAZHAR ALI ‑‑‑Respondent

Civil Revision No. 168 of 1999, decided on 2nd April, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of fact recorded by Courts below‑‑‑Plaintiff filed a suit for the ejectment of defendants being tenants in the house owned by the plaintiff‑‑‑Defendants claimed to have purchased the disputed house on the basis of a sale‑deed‑‑‑Vendor from whom the defendants claimed to have purchased the property was not shown in the proprietary body of the village‑‑‑Defendants had failed to make a case as to how they became the owners of the suit property‑‑‑No evidence worth credence/reliance was produced to prove the deed‑‑­Plaintiff not only successfully proved the ownership through Revenue Record but also proved that the defendants were his tenants in the disputed house on payment of Khakshora (village customary rent)‑‑‑Trial Court decreed the suit and the appeal against the judgment passed by the Trial Court was dismissed by the Appellate Court‑‑‑Validity‑‑‑Where no misreading‑or non‑reading of evidence, illegality, material irregularity or mis-exercise or non‑exercise of jurisdiction vested in the Courts below was pointed .out, both the Courts below had rightly passed the decrees in favour of the plaintiff‑‑‑High Court declined to interfere with the, concurrent findings of facts recorded by the Courts below‑‑‑Revision was` dismissed in limine.

Abdul Kabir Tangi for Petitioners. Gul. Sadber Khan for Respondents (on Pre‑Admission Notice).

2002 C L C 28

[Peshawar]

Before Mian Shakirullah Jan and Abdur Rauf Khan Lughmani, JJ

AMIR NAWAZ and 4 others‑‑‑Petitioners

Versus

MEMBER, BOARD OF REVENUE, N.‑W. F. P., PESHAWAR and 11 others‑‑‑Respondents

Writ petition No.799 of 1995, decided on 31st January, 2000.

North‑West Frontier Province Tenancy Act (XXV of 1950)‑‑‑

‑‑‑‑S. 49‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Ejectment of tenant for default in payment of 'rent‑‑‑" Defaulter" and "wilful defaulter"‑‑‑Distinction‑‑‑Plea raised by the tenant was that he was not a "wilful defaulter"‑‑‑Validity‑‑‑Default in the rent was admitted by the tenant‑‑‑Where there was specific provision in .a special law viz. North‑West Frontier Province Tenancy Act, 1950, principles of other laws were not applicable‑‑‑No difference exists between defaulter and wilful defaulter under the provisions of North‑West Frontier Province Tenancy Act, 1950‑‑‑Failure to pay arrears of rent by tenant to his‑landlord, made him liable to eviction at the instance of landlord‑‑­High Court declined to interfere with the orders passed by the .Revenue Authorities‑‑‑Petition was dismissed in circumstances.

Qazilbash Wakf v. Chief Land Commissioner PLD 1990 SC 99; Haji Samad Khan and others v. Khalid Khan and others 1985 SCMR 770; Haji Jamroz Khan v. Wazir Muhammad and 16 others 1992 SCMR 2103 and Faiz Ahmad and 16 others v. Muhammad Sharif Khan and 8 others 1991 SCMR 689 ref.

Samar Khan and 6 others v. Safdar and 9 others PLD 1989 Pesh. 102 fol.

M. Yunas Shah for Petitioners.

Gul Sadber Khan for Respondents Nos.5 to 12.

Date of hearing: 27th July, 2000.

2002 C L C 49

[Peshawar]

Before Malik Hamid Saeed and Ejaz Afzal Khan, JJ

MUHAMMAD AFZAL KHAN---Petitioner

Versus

PRINCIPAL KHYBER MEDICAL COLLEGE, PESHAWAR and 5 others---Respondents

Writ Petition No.267 of 2001, decided on 20th September, 2001.

(a) Constitution of Pakistan (1973)---

----Arts. 25 . & 199---Equity before law---Constitutional petition--­Discriminatory use of a provision of law---Remedy---Statute cannot be struck down on the ground of its being used in a discriminatory manner, but a discriminatory action taken pursuant thereto can be struck down.

(b) Pakistan Medical and Dental Council Regulations---

S. IV(13)---Constitution of Pakistan (1973), Arts.25 & 199--­Constitutional petition---Educational institution---Discriminatory use of Regulations ---Regulations are not discriminatory, but they are capable of being used 'in a discriminatory manner---Absence of express provision in Regulations as to the date of its taking effect, consequences of neglect to comply therewith, lack of willingness on the part of Pakistan Medical and Dental Council to enforce it in its true letter and spirit have reduced same to a farce, which led College Authorities to take discriminatory action thereunder---Difference in number of chances for qualifying First Professional M.B.,B.S. Examination between Medical Colleges in N.-W.F.P. and other Provinces, enforcement of Regulations at the whim and pleasure of Principals of the Colleges and application of different yardsticks in like situations are the glaring instances of discriminatory action---High Court emphasized the need of uniform application of Regulations throughout the country to guard against any possible duality, discrimination and double standards in its application.

(c) Pakistan Medical and Dental Council Regulations---

---- S. IV(13)---Constitution of Pakistan (1973), Arts.25 & 199--­Constitutional petition---Educational institutions---First Professional M.B.,B.S. Examination---Number of chances to qualify, reduction of--­Effect---Petitioners were' expelled from Medical College for having failed to qualify First Professional Examination in three chances as provided in the Regulation reducing chances to qualify such examination from four to three---Contention was that. Regulation was harsh and violative of Constitutional provisions---Validity---Regulation was not discriminatory, but was capable of being used in a discriminatory manner and discriminatory action taken thereunder could not be allowed to stand--­Respondents had allowed other students of First Professional Part-I to attend classes of 2nd year M,B.,B.S. provisionally in violation of S.IV(3) of Regulation---High Court accepted Constitutional petition, struck down the impugned order and directed respondents to regularize the admission of petitioners to enable them to avail one more chance in the examination in line with Medical Colleges of other Provinces.

Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026 ref.

Abdul Sattar for Petitioner. Wasimuddin Khattak for Respondents Nos.1 and 2. Iqbal Ahmad Qureshi for Respondent No.3.

Rashidul Haq Qazi, A.A.-G. for Respondents Nos.4 to 6.

Dates of hearing: 18th and 19th September, 2001.

2002 C L C 300

[Peshawar]

Before Sardar Muhammad Raza Khan, CJ

Mst. BIBI SAYERA‑‑‑Petitioner

versus

MISRI KHAN and others‑‑‑Respondents

Civil Revision No.734 of 1994, decided on 22nd October, 2001.

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

‑‑‑‑S. 45‑‑‑Mutation‑‑‑Evidentiary value‑‑‑Mutation is not a deed of title and whosoever claims thereunder, has to‑ shoulder the burden to prove such mutation.

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

‑‑‑‑S. 45‑‑‑Mutation‑‑‑Onus to prove‑‑‑Transfer by Pardahnashin lady‑‑­Burden of proof lies on every vendee who claims title under mutation much less a Pardahnashin lady in whose case such burden is much aggravated.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Appreciation of evidence‑‑‑Concurrent findings of facts by the Courts below‑‑‑Petitioner, a Pardahnashin lady denied transfer of suit land in favour of the respondents‑‑‑Both the Courts below instead of discussing the evidence on record only relied upon report of Finger. Print Expert and dismissed the suit as well as the appeal‑‑­Validity‑‑‑By not dismissing the intrinsic value of as many as 14 witnesses, both the Courts below had failed to exercise the jurisdiction vested in them‑.‑Where the litigation had been lingering on since year 1978, High Court instead of remanding the case to the Trial Court, decided to remand the same to the Appellate Court as the Court was vested with the powers of Trial Court‑‑‑High Court directed the Appellate Court to make a complete appraisal of evidence on record and to answer thereafter all the questions raised by both the parties.

Miss Nusrat Yasmeen for Petitioner.

Sheikh Wazir Muhammad for Respondents.

Date of hearing: 22nd October, 2001.

2002 C L C 307

[Peshawar]

Before Tariq Parvez and Shahzad Akbar Khan, JJ

Mst. MAJABEENA‑‑‑Petitioner

versus

MUHAMMAD I13RAR and others‑‑ ‑Respondents

Writ Petition No.665 of 2000, decided on 29th October, 2001.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(2)(b)(vi)‑‑‑Ejectment of tenant‑‑‑Plea of reconstruction ‑‑‑Pre­conditions‑‑‑ Reasonableness and good faith are pre‑conditions for eviction of tenant under the provisions of S.13(2)(b)(vi) of the West Pakistan Urban Rent Restriction Ordinance, 1959, on the ground of reconstruction or erection of building‑‑Landlord is bound under law to prove that he requires the property in good faith for the said purpose.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(2)(b)(vi)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition ‑‑‑Ejectment of tenant‑‑‑Plea of reconstruction‑‑­Concurrent findings of facts by the Courts below‑‑‑Bona fides of landlord‑‑‑Proposed construction was not located in the Khasra No. which was mentioned in the approved site plan of the building‑‑­Validity‑‑‑Requirement of the landlord was neither reasonable nor in good faith‑‑‑Where both the Courts below had failed to touch such aspect of the matter, their findings were outcome of misappreciation of evidence and non‑appreciation of material on record which rendered their judgments and orders as without lawful authority‑‑‑Order of eviction passed by the Courts below was set aside‑‑‑Constitutional petition was allowed in circumstances.

Tajuddin for Petitioner.

Sh. Wazir Muhammad for Respondents.

Date of hearing: 29th October, 2001.

2002 C L C 315

[Peshawar]

Before Ijaz‑ul‑Hassan, J

Mst. IFTIKHARUN NISA‑‑‑Petitioner

versus

Mst. RAZIA BEGUM and 6 others‑‑‑Respondents

Civil Revision No.305 of 1994, decided on 8th June, 2001.

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

‑‑‑‑S. 115 & O.VI, R.17‑‑‑Amendment of plaint‑‑‑Appellate Court, jurisdiction of‑‑‑Omission of Appellate Court to decide application for amendment of plaint‑‑‑Suit filed by the plaintiffs was dismissed by Trial Court and during pendency of appeal before Appellate Court the plaintiffs filed application for amendment of plaint‑‑ ‑Without deciding the application, the Appellate Court dismissed the appeal ‑‑‑Validity‑‑­Omission on the part of Appellate Court to decide the application in one way or the other had materially prejudiced the rights of the plaintiffs and frustrated the ends of justice‑‑‑Having become seized of the application the Appellate Court should have disposed of the same before proceeding further in the matter‑‑‑Object of judicial function was to reach the truth and to do justice between the parties‑‑‑Judgment and decree passed by the Appellate Court were set aside and the case was remanded to the Appellate Court for its fresh decision after disposing of the application for amendment of plaint.

1993 CLC 334; PLD 1976 Kar. 1075; 1989 CLC 1819; PLD 1986 Pesh. 1 and 2001 MLD 125 ref.

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

‑‑‑‑O. XLI, R.23‑‑‑Remand of case‑‑‑Scope‑‑‑Remand of case should not be adopted as a matter of course to allow a party or an authority to fill in lacuna or to improve upon the case‑‑‑Where omission on the part of Appellate Court had materially resulted in miscarriage of justice, the case was remanded to the Appellate Court.

Alhaj Sardar Bahadur Khan for Petitioner.

Mehboob Ahmad Khan for Respondents.

Date of hearing: 29th May, 2001.

2002 C L C 338

[Peshawar]

Before Khalida Rachid and Ijaz‑ul‑Hassan, JJ

SAMEEN AKBAR and 4 others‑‑‑Petitioners

versus

PRINCIPAL AND CHAIRMAN JOINT ADMISSION

COMMITTEE, KHYBER MEDICAL COLLEGE, PESHAWAR and 4 others‑‑‑Respondents

Constitutional Petition No. 147 and Civil Miscellaneous No. 136 of 2001, decided on 6th July, 2001.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Object and scope‑‑‑Provision of Art.199 of the Constitution provides, inter alia, for a declaration, a prohibitory order, a mandatory order and order in the nature of quo warranto‑‑‑Jurisdiction possessed by High Court in such‑like matters is discretionary‑‑‑Object of such orders is to foster justice and to right a wrong‑‑‑Discretionary relief under Constitutional jurisdiction can only be claimed by a person having a bona fide claim and coming to Court with clean hands for enforcement of legal rights obtained in lawful manner.

(b) Educational institution‑‑‑

‑‑‑‑ Prospectus of educational institutions‑‑‑Value of‑‑‑Prospectus of an educational institution is a complete code in itself providing for the courses and other allied matters to regulate day to day affairs of the institution.

(c) Educational institution‑‑‑

Providing facility of promotion to unsuccessful students‑‑ ‑Grievance the students was that although they had failed to pass first professional examination of M.B.,B.S., yet they were not promoted to the next class‑‑‑Validity‑‑‑No provision existed under the college prospectus to provide to the failed students the facility of promotion to higher class‑‑‑In case the students ,were extended such facility, the same would disturb the whole academic system of the college which would adversely affect the other students‑‑‑Court declined to interfere in the educational affairs as in the present case, no violation of rules of the respective institution or discrimination of the students therein was established‑‑‑Where the students had been dealt with fairly by College Authorities, no case of interference had been made out for exercise of Constitutional jurisdiction.

Miss Sakina Begum v. Bolan Medical College, Quetta through Secretary and 3 others 1995 SCMR 334 ref.

S. Asif Ali Shah for Petitioner.

Adam Khan Jadoon and Waseem‑ud‑Din Khattak for Respondents.

Date of hearing: 6th July, 2001.

2002 C L C 366

[Peshawar]

Before Khalida Rachid and Nasirul Mulk, JJ

Haji TEHMASH KHAN KHALIL and 2 others‑‑‑Petitioners

versus

ELECTION TRIBUNAL FOR PESHAWAR LOCAL

COUNCILS through Presiding Officer, Peshawar and 9 others‑-‑Respondents

Writ Petition No. 1259 of 2001, decided on 11th October, 2001.

(a) North‑West Frontier Province Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑Ss. 8(2), 16 & 18‑A‑‑‑North‑West Frontier Province Local Government Elections Rules, 2000, R.88‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Filling up of a vacancy of Nazim‑‑‑Petitioners before Election Tribunal challenged election of returned candidates for Nazim and Naib‑Nazim seats having lost election just by one vote‑‑‑Elected Nazim, during pendency of election petition, after having been elected as member of Zila Council resigned from office of Nazim, for which Election Commission announced by‑election‑‑­Contention of the petitioners was that such resignation would automatically lead to resignation of Naib‑Nazim also for having been elected as joint candidates to office of Nazim and Naib‑Nazim, and in such eventuality election petition had to be dismissed as there remained no respondent to contest same‑‑‑Validity‑‑‑Such plea had not been taken before Election Tribunal‑‑‑Conditions of joint candidacy and elections, disqualification of one resulting in rejection of nomination papers . of both, failure or success in election as a team whole, would be applicable during initial stage of elections for Nazim and Naib‑Nazim seats‑‑­Vacancy of the office of Nazim, according to S. 18‑A of the Ordinance had to be filled up through by‑election, but till then, an officiating Nazim would be elected by majority votes of the members of the Council ‑‑‑Naib­Nazim had been expressly debarred from contesting by‑election of Nazim or that of an officiating Nazim, meaning thereby that he would retain his seat notwithstanding vacation of seat by Nazim‑‑‑No express provisions existed in Ordinance providing that with the vacancy of office of Nazim, the Naib‑Nazim would also vacate his seat and there would be by‑election for both the seats‑‑‑Since Naib‑Nazim retained his seat, therefore, election petition could not be dismissed under R.88 of North‑West Frontier Province Elections Rules, 2000, which otherwise provided that where there was no respondent left to contest an election petition, Tribunal would decide it ex parte leaving no room for its dismissal on such ground‑‑‑Contention of petitioners was not maintainable.

Muhammad Yousaf Khattak v. S.M. Ayub PLD 1972 Pesh. 151; Col. (R.) Mukhtar Hussain v. Wasim Sajjad and others 1986 SCMR 48; Ch. Muhammad Ali v. Government of West Pakistan PLD 1966 (W.P.) Lah. 335; Muhammad Abdullah Tahir v. Muhammad Usman Khan Abbasi 1998 CLC 612; Jalal Din v. Assistant Commissioner 1988 MLD 690; Muhammad Abdullah Khan v. Sahibzada Muhammad Usman Khan Abbasi 1997 'MLD 2983 and Muhammad Akhtar Butt v. The Election Tribunal 1999 MLD 2793 ref.

(b) North‑West Frontier Province Local Government Elections Rules, 2000‑ ‑

‑‑‑‑R. 79‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & S.151‑‑‑Temporary injunction‑‑‑Election Tribunal is empowered under R.79 of North‑West Frontier Province Local Government Elections Rules, 2000, to exercise all the powers of Civil Court trying a suit under Civil Procedure Code, 1908, which would include the powers under S.151 and O.XXXIX, Rr.1 & 2 of C. P. C.

(c) North‑West Frontier Province Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R. 79‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & S.151‑‑‑Grant of temporary injunction by postponing election‑‑‑Election Tribunals/Courts are slow in interfering with process of election and ordinarily would not postpone election already announced, but in appropriate cases, they can grant interim relief against the, process of election.

Shehzada Saeedur Rashid Mehmood Abbasi v. Nawab Salahuddin Ahmad Abbasi 1997 CLC 1716 ref.

(d) North‑West Frontier Province Local Government Election Rules, 2000‑‑‑

‑‑‑‑‑R. 79‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & S.151‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Election Tribunal restrained holding of by‑election till decision of election petition‑‑‑Validity‑‑‑Petitioners had lost election by one vote before Election Tribunal and had alleged corrupt practices‑‑‑Possibility of re‑count by Tribunal after recording of evidence could not be ruled out, even though not specifically prayed for in election petition‑‑‑In view of very narrow winning margin, there was every likelihood of change in ultimate result‑‑‑If by‑elections were allowed to take place, Election petition would become infructuous‑‑‑In case of dismissal of election petition, by‑election would eventually take place‑‑‑If elections were held, the inconvenience to petitioners before Election Tribunal would be far greater than it would be to petitioners in case of postponing elections‑‑­Election Tribunal had not committed any illegality in postponing by ­elections till decision of election petition‑‑‑No case was made out for interference with impugned order, High Court dismissed Constitutional petition in limine with direction to Election Tribunal to decide election petition within specified time.

Jehanzeb kahim for Petitioners.

Abdul Sarmad Khan for Respondents.

Date of hearing: 11th October, 2001.

2002 C L C 379

[Peshawar]

Before Ijaz‑ul‑Hassan, J

ROOH UL QADOOS‑‑‑Petitioner

versus

MUHAMMAD RAFIQUE and 2 others‑‑‑Respondents

Civil Revision No. 103 of 1997, decided on 8th June, 2001.

(a) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13(1)‑‑‑Pre‑emption suit ‑‑‑Talb‑e‑Muwathibat, making of‑‑­Principles ‑‑‑Talb means the jumping demand and provisions of S.13(1) of North‑West Frontier Province Pre‑emption Act, 1987, envisage firstly, the act of a prospective pre‑emptor coming to know of the factum of sale, ,secondly, such knowledge/information emanating from a sitting or meeting i.e. Majlis and thirdly, and foremostly declaration of his intention to exercise the right of pre‑emption immediately on gaining knowledge of the sale.

(b) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑Ss. 13 & 32‑‑‑Pre‑emption right, exercise of‑‑‑Making of mandatory demands (Talbs)‑‑‑Procedure stated.

A person who intends to pre‑empt a sale transaction by enforcing his right of pre‑emption shall make an immediate demand in the sitting or meeting in which he has come to know of the sale declaring his intention to exercise the right of pre‑emption technically called "Talb‑e­Muwathibat". He shall be thereafter required to make the demand of "Talb‑e‑Ishhad" by establishing evidence as soon as possible but not later than two weeks from the date of notice under section 32 of the N.‑.W.F.P. Pre‑emption Act, 1987 or knowledge whichever may be earlier, by sending a notice in writing attested by two truthful witnesses to the vendee under a registered postal cover with acknowledgment due confirming his intention to exercise the right of pre‑emption, then comes the demand for "Talb‑e‑Khusumat" by filing a suit in a competent Court for enforcing his right of pre‑emption.

(c) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Pre‑emption suit ‑‑‑Talb‑e‑Ishhad‑--‑‑Issuance of photostat notice to co‑vendees‑‑‑Validity‑‑‑Mere fact that one of the vendees was issued original notice whereas the remaining were served with photostat copies, the same by itself could not be considered a good ground to dislodge the pre‑emptor, who was co‑sharer in the suit property.

(d) North‑West Frontier. Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 15‑‑‑Pre‑emption right‑‑‑Waiver‑‑‑Onus to prove‑‑‑Onus to prove the act of waiver lies heavily on vendees.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of fact by the Courts below‑‑­Appraisal of evidence by High Court in exercise of revisional jurisdiction‑‑‑Scope‑‑‑In absence of any jurisdictional error or material irregularity, High Court in revisional jurisdiction under S.115, C.P.C. is not competent in undertaking its own appraisal of evidence in the face of concurrent findings of the two Courts below‑‑‑Where High Court is satisfied that the findings are based on misreading or non‑reading of evidence, the Court in such case is competent to set at naught the concurrent findings of the two Courts‑‑‑Such findings do not always stand in the way of High Court to set them at naught in appropriate cases‑‑‑If the Courts below commit an error in the mode prescribed for the exercise of jurisdiction then High Court has the power to interfere under S.115, C.P.C.

(f) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Pre‑emption suit‑‑‑Principle of waiver and estoppel‑‑­Applicability‑‑‑Onus to prove ‑‑‑Vendees raised the plea of waiver and asserted that the pre‑emptor had participated in the sale bargain‑‑‑Both the Courts below had concurrently dismissed the suit‑‑‑Validity‑‑‑Where the vendees failed to prove the plea of waiver, the onus of which was on them, judgments and decrees passed by the Courts below were set aside‑‑‑Suit was decreed in circumstances.

PLD 1993 Lah. 443; 1992 SCMR 1886; 1990 CLC 144; 1999 CLC 1878; 1991 MLD 1631; 1992 CLC 1304 and 2000 CLC 336 distinguished.

Abdul Latif Khan for Petitioner.

Fida Muhammad Khan for Respondents.

Date of hearing: 14th May, 2001.

2002 C L C 418

[Peshawar]

Before Khalida Rachid and Ijaz‑ul‑Hassan, JJ

SHAH NAWAZ SHAH‑‑‑Appellant

Versus

YOUNIS‑UR‑REHMAN and 3 others‑‑‑Respondents

Regular First Appeal No.35 of 2000, decided on 22nd November, 2001.

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 22 & Art.23‑‑‑Civil Procedure Code (V of 1908), S.96 & O.I, R.10‑‑‑Suit for damages for malicious prosecution ‑‑‑Impleading new defendant‑‑‑Addition beyond limitation‑‑‑Addition of defendant was made when the period of limitation had already expired‑‑‑Trial Court dismissed the suit being time‑barred‑‑‑Validity‑‑‑Where the application for adding party to suit was made after limitation, the same had affected the entire suit‑‑‑Suit was rightly dismissed by the Trial Court as barred by time.

Muhammad Yousaf v. Syed Ghayyur Hussain Shah and 5 others 1993 SCMR 1185; Malik Raza Khan v. Pakistan PLD 1965 (W. P.) Kar. 244; Muhammad Afsar and 6 others v. Shah Wali and 2 others PLD 1984 SC (AJ&K) 115; Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu and Kashmir and 13 others PLD 1985 SC (AJ&K) .102; Mst. Bibi Lal Bibi v. Mir Balouch Khan and another PLD 1962 (W.P.) Quetta 28; Shujaul Mulk v. Firm Abdul Ghafoor Abdul Qadeem PLD 1964 (W.P.) Pesh. 110; Northern Bank of India Ltd. v. Ramesh Chandar and another AIR 1932 Lah. 314; Devi Dayal v. Narain Singh and others AIR 1928 Lah. 33; Muhammad Khan v. Abdul Khaliq Khan PLD 1981 SC 155; Hayat. and others v. Amir PLD 1982 SC 167 and Chaudhry Abdul Ghani Guman v. Province of Punjab and 2 others. PLD 1975 Lah. 1238 ref.

Qazi Muhammad Ghazanfar for Appellant.

Muhammad Ismail for Respondents.

Dy.A.‑G. for Respondent No.4.

Date of hearing: 1st November, 2001.

2002 C L C 427

[Peshawar]

Before Ijaz‑ul‑Hassan, J

EXECUTIVE ENGINEER, C&W, MANSEHRA and 2 other‑‑ Petitioner

Versus

MUHAMMAD NASIM KHAN and 4 others‑‑‑Respondents

Civil Revision No.304 of 1994, decided on 5th November, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XX, R.5 & O.XLI, R.31‑‑‑Judgment passed by Appellate Court‑‑­Failure to state points for determination‑‑‑Non‑mentioning of evidence on record in judgment passed by Appellate Court‑‑ ‑Appellate Court in exercise of appellate jurisdiction set aside the judgment and decree passed by the Trial Court resultantly suit filed by the plaintiff was decreed‑‑‑Plea raised by the defendants was that the Appellate Court without independent exercise to review the evidence on record decided the matter against them‑‑‑Validity‑‑‑Judgment passed by Appellate Court should state the points for determination, its decision thereon and reasons for its decision‑‑‑Appellate Court was required to give its decision with regard to each point which should be self‑explanatory, illuminative and in nature of a speaking order‑‑‑Trial Court and Appellate Court were duty‑bound to consider and discuss the evidence of both the parties satisfactorily so that it might be visible that the Courts below had applied their mind and that they had based their findings on proper appraisal of evidence on record‑‑­Where the Appellate Court had not referred to the evidence of the parties and had disposed of the issues in a cursory and slipshod manner, the judgment passed by the Court was liable to be reversed in revision as the same was not in consonance with the requirements of O.XX, R.5, C.P.C. read with O.XLI, R.31, C.P.C.‑‑‑high Court remanded the case to the Appellate Court for decision afresh.

Manzoor‑ul‑Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 109; Muhammad Mustakeem through his Legal Heirs v. Abdul Haleem through his Legal Heirs 1992 CLC 435; Syed Hassan Shah v. Malook Shah and another 1983 CLC 2281; Mst. Salma Bibi v. Ali Sher and 2 others 1994 CLC 2189 and Mst. Aisha v. Mst. Fatima and others 1991 CLC 1499 ref.

Khan Afzal Khan for Petitioners.

Muhammad Aslam Khan Tanoli for Respondents.

Date of hearing: 22nd October, 2001.

2002 C L C 439

[Peshawar]

Before Ijaz‑ul‑Hassan, J

JAVED QAYYUM KHAN‑‑‑Appellant

Versus

MUHAMMAD ISMAIL SABRI‑‑‑Respondent

Regular First Appeal No.50 of 2000, decided on 22nd October, 2001.

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

‑‑‑‑O. XXXVII, R.3‑‑‑Leave to defend the suit, grant of ‑‑‑Principles‑‑­Grant of leave to defend a suit filed under O.XXXVII, C.P.C. is not a matter of course or right‑In 'order to be legible for such benefit, the defendant is liable to show such facts which may warrant proving of consideration by plaintiff or disclose a plausible defence which may give rise to triable issues which necessarily implies that granting of permission to defend the suit or refusal thereof is dependent on the attending circumstances of each case and no hard and fast rule can be laid for the purpose‑‑‑If no defence worth the name is made out on facts or in law in application for leave to defend the suit, the leave can be refused‑‑‑Leave can also be refused if the defence disclosed on affidavits is sham or colourable or illusory/imaginary and may not give rise to triable issues.

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

‑‑‑‑O. XXXVII, R.3 & S.96‑‑‑Leave to defend the suit, grant of‑‑­Substantial question of law and fact‑‑‑Defendant denied availing of any loan from the plaintiff‑‑‑Plea raised by the defendant was that the cheque was issued in favour of the plaintiff as security in respect of purchase of land‑‑‑Trial Court dismissed the application and did not grant leave to defend the suit‑‑Validity‑‑‑Where the controversy between .the parties could only be resolved through inviting evidence, the defendant should have been afforded an opportunity to do so‑‑‑Order passed by the Trial Court was set aside‑‑‑High Court remanded the case to the Trial Court for decision afresh.

Messrs Skyline Travels (Pvt.) Ltd v. Messrs Fly World Travels and another 1997 CLC 766; Sardar Abdur Rehman v. Fida Hussain 1996 CLC 1571; Habib Bank Ltd. v. Asghar Ali and others 1998 CLC 353; Abdul Karim v. United Bank Ltd, and 2 others 1984 SCMR 568; Messrs Karachi Bandid Stores Ltd. v. Trustees of the Port of Karachi 1999 MLD 3214; Rana Muhammad Ahmad Noon v. Muhammad Javed Khan 1999 SCMR 1845 and Raja Saeed Ahmad Khan v. Sabir Hussain 2000 CLC 199 ref.

Tahir Faraz Abbasi for Appellant.

Syed Farzand Ali Shah for Respondent.

Date of hearing: 22nd October, 2001.

2002 C L C 526

[Peshawar]

Before Ijaz‑ul‑Hassan, J

MUHAMMAD YOUSAF‑‑‑Appellant

Versus

NISAR AHMAD and another‑‑‑‑Respondents

First Appeal from Order No.57 of 2000, decided on 19th November, 2001.

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

‑‑‑‑S. 17‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 117 & 120‑‑‑Bona fide personal need of landlord‑‑‑Onus to prove‑‑‑Scope‑‑‑Person who asserted/alleged a particular fact and wanted the Court to believe existence of that fact, such person was required to prove the existence of that fact‑‑‑Where good faith and bona fides were pleaded, the same were to be established by some cogent and convincing evidence‑‑‑Once the tenant was able to put a dent in such claim, then it became all the more necessary to establish such fact‑‑‑Cumulative effect of the evidence was to be assessed objectively and collectively to decipher bona fide need‑‑‑If there was enough material that reflected adversely on the landlord, the ejectment could not be granted.

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

‑‑‑‑S. 17‑‑‑Ejectment of tenant‑‑‑Pleas of bona fide personal need, default in monthly rent and sub‑letting of premises‑‑‑Landlord during the ejectment proceedings, transferred certain shops in favour of his grand­sons in order to enable them to carry out business and earn their livelihood‑‑‑Rent Controller dismissed the ejectment application‑‑­Validity‑‑‑Element of good faith was wanting in the present case and nothing had been produced in support of accusation of default in monthly rent‑‑‑Mere assertion of landlord that the premises was sublet without his consent, suit premises were required for personal need or that the tenant was rent defaulter, without positive attempt on the part of the landlord to substantiate the same, was of no consequence‑‑‑High Court declined to interfere with the order passed by the Rent Controller in circumstances.

Mst. Khurshid Begum v. Dr. Khalid Masood and another 1996 CLC 646; Saeed Muhammad v. Mehrullah and another PLD 1996 Quetta 48; Mst. Mumtaz Begum v. Mst. Wazir Begum PLD 1997 Lah. 99; Mian Khadam Hussain v. Mehboob Ilahi Khawaja and another 1995 CLC 63 and Attiqur Rehman and others v. Muhammad Aslam 1995 CLC 66 distinguished.

Musharaf Khan v. Sherin Khan and another 1995 SCMR 1661; Muhammad Yousaf v. Mrs. Noor Jehan Bi 2000 CLC 1252; Muhammad Roshan Khan v. Ishtiaq Ali 1995 CLC 702; Gayoor Alam v. Muhammad Jamil 1983 CLC 1274 and Muhammad Zaman v. Hasbun Nisa 1991 SCMR 1307 ref.

Shakeel Ahmad Khan for Appellant.

Shaukat Khan Turk for Respondents.

Date of hearing: 16th November, 2001.

2002 C L C 545

[Peshawar]

Before Mian Shakirullah Jan, J

MUHAMMAD SALEEM‑‑‑Petitioner

Versus

MUHAMMAD AMIN ‑‑‑Respondent

Civil Revision No.64 of 2001, decided on 5th December, 2001.

North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 24(1)‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Deposit of pre­emption money (Zar‑e‑Soem)‑‑‑Limitation‑‑‑Delay of one day by Court staff in deposit of money in treasury‑‑‑Effect‑‑‑Plaintiff was required under S.24(1) of the North‑West Frontier Province Pre‑emption Act, 1987, to deposit 1/3rd of the amount "in such Court"‑‑‑Where the plaintiff came to the Court with the requisite amount and sought permission of the Court on 5‑1‑1998 (thirtieth day)in that respect, but Civil Nazir deposited the same in treasury on 6‑1‑1998‑‑‑Various endorsements made by the Civil Nazir, official of the Court, and the preparation of the voucher of the treasury on 5‑1‑1998 would be deemed that the plaintiff had deposited the amount on the same day and it was for the Civil Nazir to get it deposited might be with the assistance of the plaintiff whether on the same day or on the next day would make no difference as all the steps taken by the plaintiff Would be considered as valid tender of the amount in the Court and it accordance with the order of the Court in circumstances.

Shah Behram v. Akbar Khan PLD 1992 Pesh. 18; Haji Janat Gul Khan v. Haji Faqir Muhammad Khan PLD 1993 SC 204; Sherzada v. Zawar Din 1995 SCMR 90; Habibullah Khan v. Amir Zaman 1995 SCMR 135; Wahid Bakhsh v. Abdul Qayum 1997 MLD 2945 and Muhammad Iqbal v. Jehanzeb Khan 1999 MLD 2475 ref.

Abdul Aziz v. Aziz‑ul‑Haq 1972 SCMR 296 fol.

Malik Manzoor Hussain for Petitioner.

Sajjad Ahmed Abbasi for Respondent.

Date of hearing: 5th December, 2001.

2002 C L C 582

[Peshawar]

Before Ijaz‑ul‑Hassan, J

Qazi MUHAMMAD IFTIKHAR‑‑‑Petitioner

Versus

Sufi NOOR ELAHI‑‑‑Respondent

Civil Revision No.91 of 1995, decided on 5th October, 2001.

(a) Easements Act (V of 1882)‑‑‑

‑‑‑‑S. 4‑‑‑Right of easement‑‑‑Right of passage of water for irrigation‑‑­Plaintiff claimed right of easement on the ground that the defendants had no right to block the water channel which was passing through the land owned by the defendants, as the orchard of the plaintiff was being irrigated by the water channel‑‑‑Both the Courts below had concurrently decided the matter against the plaintiff‑‑‑Validity‑‑‑Where the plaintiff had alternate access to his orchard and he could use the same at his leisure, the right of easement had rightly been declined to the plaintiff for valid reasons due to lack of evidence on file‑‑‑No misreading or non­ reading of evidence warranting interference by High Court was found‑‑­Both the Courts below had dealt at length with the matter and discussed all the issues in a proper manner in the light of the material on file‑‑‑High Court declined to interfere with the judgments and decrees passed by the two Courts below in circumstances.

Anata Kumar Majumdar and others v. Gopal Chandra Majumdal and others PLD 1961 Dacca 65; Messrs Eastern Carpets (Pak.) Ltd. v Province of the .Punjab and another 1994 MLD 558; Saffatullah and others v. Munshi Ainuddin and others PLD 1.964 Dacca 52; Haji Khan Baz Khan and 8 others v. Abdur Rahim and 5 others PLD 1993 Pesh. 36 Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 Messrs Pakistan Warranted Warehouse Ltd. v. Messrs Sindh Industrial Trading Estate Ltd. and another 1991 SCMR 119; Qazi Muhammad Ishaq v. Abdul Waheed PLD 1975 Pesh. 82; Tai Muhammad v. Mst. Zaitoonay and another PLD 1995 Pesh. 135 and Zardad Khan v. Mst. Safia Begum 1989 CLC 2006 ref.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of fact by the Courts below‑‑­Appraisal of evidence by High Court in exercise of revisional jurisdiction‑‑‑Scope‑‑‑In absence of any jurisdictional error or material irregularity, High Court in its revisional jurisdiction under S.115, C.P.C. is not competent in undertaking its own appraisal of evidence in the face of the concurrent finding of the two Courts below‑‑‑Such powers are intended for correcting errors made by the subordinate Courts in the exercise of their jurisdiction‑‑‑Ordinarily erroneous decisions of fact are not revisable except in case where the decision is based on no evidence or inadmissible evidence has been relied upon or the order sought to be revised is so perverse that grave injustice may result therefrom‑‑‑If High Court is satisfied that the findings are based on misreading or non­reading of evidence, the Court, in exercise of its revisional jurisdiction can legally set at naught the concurrent finding of fact of two Courts below‑‑‑Concurrent finding of fact does not always stand in the way of High Court to displace them in the appropriate cases.

Muhammad Younis Khan Tanoli for Petitioner.

Khalid Rehman Qureshi for Respondent.

Date of hearing: 24th September, 2001.

2002 C L C 624

[Peshawar]

Before Tariq Parvez Khan, J

ALI MUHAMMAD KHAN‑‑‑Petitioner

Versus

KALU through Legal Representatives‑‑‑‑Respondent

Civil Revisions Nos. 135 of 1999 and 32 of 2000, decided on 26th June, 2001.

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

‑‑‑‑S. 2(2)‑‑‑Decree‑‑‑Definition and scope‑‑‑Definition of decree as given in S.2(2), C.P.C. would not exclude an ex parte decree nor it would indicate that the decree against minor or decree which was ab initio void would not be a decree.

Sardar Ali and others v. Muhammad Ali and others PLD .1988 SC 287 ref.

(b) North‑West Frontier Province Pre‑emption Act (XIV of 1950)‑‑‑

‑‑‑‑S. 12‑‑‑North‑West Frontier Province Pre‑emption Act (X of 1987), Ss. 13 & 35‑‑‑Civil Procedure Code (V of 1908), Ss.2(2) & 12(2)‑‑‑Suit for .pre‑emption‑‑‑Finality of judgment and decree‑‑‑Law applicable‑‑­Where the rights of the parties had been judicially determined with reference to the terms of a law in force at the time of adjudication, the finality of such a judgment would not be affected merely because the law on the basis of which that decision was based had been subsequently altered unless a provision was expressly made in the changed or modified law destroying the finality of said judgment‑‑‑Ex parte decree in suit for pre‑emption having been passed prior to target date i.e. 31‑7‑1986, as laid down by the Supreme Court; law applicable to the case of plaintiff would be North‑West Frontier Province Pre‑emption Act, 1950‑‑­Section 35 of North‑West Frontier Province Pre‑emption Act, 1987 would not qualify nature of the decree/judgment which was already in existence‑‑‑Such decree which was granted by Court of competent jurisdiction, be it an ex parte decree or any other decree, would fall within the definition of decree as given in S.2(2), C.P.C. and its validity or voidness could be‑‑challenged before a higher Court and it would become void after the higher Court would so declare, but before such declaration such decree would remain effective‑‑‑Object of S.35 of N.‑W.F.P. Pre‑emption Act, 1987 was to remove doubts and ambiguities as regards pending proceedings and proceedings which had attained finality‑‑‑Section 35 of the said Act had been enacted to protect the rights already acquired by the parties.

(c) Interpretation of statutes‑‑‑

‑‑‑‑ Legislature was always deemed to possess all wisdom and knowledge and when any bill was passed and enacted, it would be presumed that all previous enactments on the subject were within the knowledge of the Legislature and were considered.

(d) North‑West Frontier Province Pre‑emption Act (XIV of 1950)‑‑‑

‑‑‑‑S. 12‑‑‑North‑West Frontier Province Pre‑emption Act (X of 1987), Ss.13 . & 35: ‑‑Civil Procedure Code (V of 1908), Ss.2(2), 12(2) & O.XXXII, Rr.l, 2, 3‑‑‑Limitation Act (IX of 1908), Art.120‑‑‑Suit for pre‑emption ‑‑‑Decree, execution of‑‑‑Ex parte decree‑‑‑Decree against a minor‑‑‑Nullity in law‑‑‑Decree either ex parte or passed after contest, are both decrees as both were executable and the word "executable" was in the context of their legal force‑‑‑Even an ex pare decree, if not set aside by the same Court or Court of appeal or revision, was equally executable against the judgment‑debtor as would be a decree obtained after contest‑‑‑Decree against a minor if obtained without adopting procedure as laid down in O.XXXII, C,P.C. though would be nullity and void decree, but said nullity or voidness was to be taken up when said decree was put to execution and would become nullity and void when so declared‑‑‑For the purpose of S.35 of North‑West Frontier Province Pre­emption Act, 1987, it would be sufficient if there was a decree passed by Court of competent jurisdiction, irrespective of the fact whether such decree was void or not‑‑‑Ex parte decree passed would become null and void in the eyes of law when same was set aside on the application under S.12(2), C.P.C. but before setting it aside same would remain in existence‑‑‑In case of consent decree, limitation period would be under Art.120 of Limitation Act, 1908 which was six years but where North-­West Frontier Province Pre‑emption Act, 1950 was applicable to a case, then period of limitation would be one year for filing suit for pre­emption.

Bahadur Khan and others v. Muhammad Younus and another 1992 SCMR 2117; Mst. Rukh Afza v. Sher Aman Khan and others PLD 1983 Pesh. 49; Ghulam Hussain and others v. Ghaus Bakhsh and‑ others 1986 SCMR 491; Muhammad Din v. Sarfraz 1988 CLC 768; 1976 SCMR 90; Mst. Sardari Begum v. Atta‑ur‑Rehman 1997 CLC 1500 and PLD 1985 SC 677 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Findings recorded by Court below on proper appraisal of evidence both oral and documentary, would not require interference ‑ of High Court in its revisional jurisdiction.

S. Zafar Abbas Zaidi for Petitioner.

Mazhar Alam Khan Mian Khel for Respondents.

Date of hearing: 18th June, 2001.

2002 C L C 754

[Peshawar]

Before Sardar Muhammad Raza Khan, CJ

SAMEEN KHAN and 4 others‑‑‑Petitioners

Versus

Haji MIR AZAD and others‑‑‑Respondents

Civil Revision No.208 of 1996, decided on 1st November, 2001.

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

‑‑‑‑S. 44‑‑‑Limitation Act (IX of 1908), Art.142‑‑‑Specific Relief Act (I of 1877), Ss.8 & 42‑‑‑Suit for title and declaration‑‑‑Suit property owned by two brothers in equal shares was sold by one of the brothers fifty‑one years before filing of the suit by legal heirs of the other brother‑‑‑Other brother of vendor who was predecessor‑in‑interest of plaintiffs had remained alive for a period of thirty‑six years after sale of suit property and attestation of sale mutation thereof, without receiving either rent or produce of suit property and also had not resorted to any physical or legal action against the vendees of the suit‑land‑‑‑Predecessor‑in‑interest of the plaintiffs died fifteen years prior to institution of suit by his legal heirs and prior to his death neither predecessors‑in‑interest had filed suit nor his legal heirs had cared to file suit for title or for possession and kept silent for fifty‑one years and had not challenged the consistent entries in the Revenue Record since the date of mutation‑‑‑Plaintiffs had come to the Court challenging the entries of Revenue Record after a delay of fifty‑one years without being in possession and without proving to have received the share of Batai from the defendants/vendees‑‑‑Suit under Art.142 of the Limitation Act, 1908 being time‑barred, was rightly dismissed by Appellate Court.

Muhammad Hussain v. Khuda Bakhsh 1989 SCMR 1563 and Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 ref.

(b) Adverse possession‑‑

‑‑‑‑ Question of adverse possession. was not attracted when possession of any person was referable to a lawful title.

Khan Ghawas Khan for Petitioners.

Muhammad Alam for Respondents.

Date of hearing: 1st November, 2001.

2002 C L C 855

[Peshawar]

Before Sardar Muhammad Raza Khan, CJ

ASAL MARJAN and another‑‑‑Petitioners

versus

KHOL MARJAN‑‑‑Respondent

Civil Revision No.314 of 1998, decided on 9th October, 2001.

(a) Counsel and client‑‑‑

‑‑‑‑ If the counsel was present in Court without instructions from his client, Court should have at the most dismissed the suit in default which, however, could not be done unless Court allowed counsel to withdraw his power of attorney‑‑‑Better course would have been to adjourn the case and summon the petitioners.

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

‑‑‑‑O. XVII, R.3‑‑‑Dismissal of suit‑‑‑Proceedings under O.XVII, R.3, C.P.C. could only be taken when adjournment was granted on request of the party concerned.

Haji Muhammad Zahir Shah for Petitioners.

Mian Muhammad Younis Shah for Respondent.

Date of hearing: 9th October, 2001.

2002 C L C 879

[Peshawar]

Before Shahzad Akbar Khan, J

AMANULLAH KHAN‑‑‑Petitioner

versus

ABDUR REHMAN‑‑‑Respondent

Civil Revision No. 196 of 2001, decided on 28th September, 2001

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

‑‑‑‑O. XLI, R.27‑‑‑Additional evidence, production of ‑‑‑Principles‑‑­Appellate. Court can allow additional evidence under O.XLI, R.27, C.P.C. where the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted and, secondly where the Appellate Court requires any document to be produced or any witness to be examined to enable the Court to pronounce judgment or for any other substantial cause‑‑‑Provisions of O.XI, R.27, C.P.C. are exception to the principle that Appellate Court cannot record fresh evidence and additional evidence can be recorded under O.XLI, R.27, C.P.C. provided the situation attracts the applicability‑‑‑Power to allow additional evidence is discretionary in nature but such discretion is circumscribed by the limitations specified in the rule itself.

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

‑‑‑‑S. 107 & O.XLI, Rr.24, 33‑‑‑Appellate Court‑‑‑Jurisdiction‑‑‑Setting aside of judgment and decree passed by Trial Court‑‑‑Validity‑‑‑Judgment and decree of the Trial Court was the outcome of examining and evaluating the evidence before it‑‑‑Finding of Trial Court which was a legal forum vested with the powers to decide the lis, could not be set aside unless on evaluation of the evidence the Appellate Court was sure that the judgment placed before it for scrutiny demonstrated clear violation of the settled principles governing the appreciation of evidence.

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

‑‑‑‑O. XLI, R.27‑‑‑Expression "to enable it to pronounce judgment in R.27, O.XLI, C.P.C.‑‑‑Connotation‑‑‑Expression shows that where the Appellate Court feels any difficulty in pronouncing the judgment in absence of the solicited additional evidence, such evidence can be permitted‑‑‑Word "it" is further significant which makes reference to the Appellate Court in whose wisdom the judgment can only be pronounced after recording the additional evidence.

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

‑‑‑‑O. XLI, R.27‑‑‑Appeal‑‑‑Additional evidence, recording of‑‑‑Setting aside of judgment and decree passed by Trial Court‑‑‑Appellate Court found it necessary for the just decision of the case that additional evidence was to be recorded‑‑‑Judgment and decree passed by the Trial Court was set aside and the case was remanded to the Trial Court for recording of the additional evidence‑‑‑Validity‑‑‑Evidence was either to be recorded by the Appellate Court itself or it might have sent the case to the Trial Court only for the purpose of recording the additional evidence and after recording the evidence the Trial Court had to remit the memorandum to the Appellate Court and the, Court thereafter could pronounce its own judgment‑‑‑Lower .Appellate Court by setting aside the judgment and decree of the Trial Court had exercised the jurisdiction not vested in it by law‑‑‑Judgment and decree passed by the Trial Court could not be set aside for the recording of additional evidence‑‑‑High Court set aside the judgment and decree passed by the Appellate Court and remanded the case to the Appellate Court for recording the permitted additional evidence itself and then to, pronounce the judgment in circumstances.

Malik Rahim Bakhsh Awan v. Ejaz Mahmood and another PLD 1990 Lah. 37 and AIR 1940 Mad. 511 ref.

Abdul Sattar for Petitioner.

Mazullah Khan Barkandi for Respondent.

Date of hearing: 28th September, 2001.

2002 C L C 904

[Peshawar]

Before Mian Shakirullah Jan and Ejaz Afzal Khan, JJ

Messrs NOWSHERA BRICKS AND TILES (PVT.) LIMITED. and others‑‑‑Appellants

versus

REGIONAL DEVELOPMENT FINANCE CORPORATION‑‑‑Respondent

F.A.B. No.73 of 1996, decided on 31st October, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 47 & O. XXI, R.23‑A‑‑‑Execution proceedings‑‑-Decretal amount‑‑‑Objection‑‑‑Security for decretal amount, non‑furnishing of‑‑­Judgment‑debtor during execution of decree objected to the decretal amount and sought the same to be reduced‑‑‑Executing Court directed the judgment‑debtor to furnish security in accordance with O.XXI, R.23‑A, C.P.C.‑‑‑Judgment‑debtor did not furnish the security resultantly the objection was dismissed by the Executing Court‑‑‑Validity‑‑‑Objection petition was filed under S.47, C.P.C. which empowered the Executing Court to adjudicate upon the matters relating to execution, discharge or satisfaction of the decree and the Court could not go behind the same‑‑­Where the decretal amount had been challenged through the objection petition, the same under the law was not maintainable‑‑­Executing Court, in the present case had rightly dismissed the objection petition for not furnishing security in accordance with O.XXI, R.23‑A, C.P.C.‑‑‑High Court declined to interfere with the order passed by the Executing Court‑‑‑Appeal was dismissed in circumstances.

Muhammad Ali and others v. Ghularm Sarwar and others 1989 SCMR 640 ref.

Samiullah Jan for Appellant.

Salehuddin Khan, Dy.A.‑G.II and Hidayatullah Khan for Respondents.

Date of hearing: 24th May, 2001.

2002 C L C 932

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

ZULFIQAR‑‑‑Petitioner

versus

MUHAMMAD JAN‑‑‑Respondent

Civil Revision Petition No. 134 of 2001, decided on 21st January, 2002.

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

‑‑‑‑O. IX, R.13, Ss.12(2), 115 & O.V, Rr.16, 18, 19‑‑‑Limitation Act (IX of 1908), S.4 & Art. 181‑‑‑Ex parte decree, setting aside of‑‑­Limitation‑‑‑Respondent's suit was decreed ex parse‑‑‑Execution application was filed on 12‑7‑2000 and was fixed for hearing for 31‑7­2000‑‑‑Petitioner on coming to know about ex parte decree during execution proceedings, filed application for its setting aside on 1‑9­2000‑‑‑Trial Court dismissed said application and Appellate Court dismissed the petitioner's appeal‑‑‑Validity‑‑‑Endorsement on the back of summons did not show that service of summons had been effected in accordance with the provisions of O.V, Rr.16, 18 & 19, C.P.C.‑‑­Process‑server had not mentioned on the back of summons as to why petitioner could not be served at his home address given in the plaint; what were the circumstances, which had led him to locate the petitioner at a certain office; who had identified the petitioner at that office and in whose presence the service had been effected‑‑‑Trial Court before proceeding ex parte had not examined the process‑server on oath‑‑­Appellate Court had also treated the appeal off‑handedly without applying its mind to the mandatory provisions of law in this behalf‑‑‑Appellate Court was so careless that it had not even examined the provision of law under which the application for setting aside ex parte decree was made by petitioner‑‑‑Appellate Court had treated said application as under S.12(2), C.P.C. and dismissed the appeal, perhaps he was not conversant with the law on the subject that in case the application of petitioner had been filed under S.12(2), C.P.C., the time prescribed therefor under Art.181 of Limitation Act, 1908, was three (3) years and not thirty (30) days‑‑‑Both the Courts below had not appreciated the fact that the time (thirty days) had to be counted after excluding the intervening period of summer vacations‑‑‑Both the Courts below had not dealt with the matter from all legal angles, but had disposed it of against all the norms of justice‑‑‑High Court accepted the revision petition, set aside the impugned judgments and decrees and remanded the case to Trial Court for de novo trial on merits.

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

‑‑‑‑O. V, Rr.16, 18 & 19‑‑‑Service of summons‑‑‑Guidelines for the Courts and Process Serving Agencies as provided by mandatory provisions of O. V, Rr.16; 18 & 19, C.P.C. stated.

The bare reading of the mandatory provisions of Order V, rule 19 of the Code of Civil Procedure, 1908 provides complete guidelines for the Courts and Process‑Serving Agencies. It says that in all cases in which summons have been served under rule 16, C.P.C. the Process‑Server shall require the signature of the person to whom the copy is so delivered or endorse on the original summons his report thereon. Rule 18 further directs the manner of service in which the same is served, to mention the name and address of the person (if any) and identify the person served and witnesses of the delivery or tender of the summons. Similarly, rule 19, C.P.C. lays down the procedure for the Court that where a summon is returned under rule 17 aforesaid duly verified, the serving officer shall be examined on oath and may make such inquiry in the matter as it thinks fit and shall either declare that the summons is duly served or as it thinks fit and after his full satisfaction to proceed further.

(c) Administration of justice‑‑‑

‑‑‑‑ Courts are required to dispense substantial justice instead of disposal on mere technicalities.

Liaqat Ali Khan Marwat for Petitioner.

Abdul Aziz Khan Dalo Khel for Respondent.

Date of hearing: 21st January, 2002.

2002 C L C 1206

[Peshawar]

Before Shah Jehan Khan and Abdur Rauf Khan Lughmani, JJ

ABDUL MAJEED‑‑‑Petitioner

versus

IFTIKHAR AHMAD and 5 others‑‑‑Respondents

Writ Petitions Nos. 155, 156 and 172 of 2001, decided on 27th March, 2002.

(a) West Pakistan Urban Rent Restriction Ordinance (V of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), Preamble ‑‑‑Ejectment proceedings‑‑‑Provisions of Civil Procedure Code, 1908‑‑‑Applicability‑­Though the provisions of C.P.C. are not entirely applicable to the proceedings under West Pakistan Urban Rent Restriction Ordinance, 1959, yet the Courts dealing with the eviction petition have to follow C.P.C. as far as possible.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Finding of facts‑2‑ Interference of High Court in Constitutional jurisdiction‑‑‑Scope‑‑‑Failure to discuss the evidence of the parties by lower forum, High Court could interfere in the matter under its Constitutional jurisdiction‑‑‑Where the Lower Appellate Court without discussing the facts available on record and without giving reasons for his findings and without applying his judicious mind passed the judgment, such judgment was arbitrary and without lawful authority which was set aside by High Court.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Constitutipn of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Ejectment of tenant‑‑‑Finding of facts‑‑‑Interference by High Court in Constitutional jurisdiction‑‑‑Rent Controller dismissed the ejectment petition whereas the Appellate Court allowed the same‑‑‑Plea raised by the tenant was that the Appellate Court had set aside the order passed by the Rent Controller without discussing the evidence available on record‑‑‑Validity‑‑‑Appellate Court while accepting the appeal of the landlord had not applied its judicious mind to the facts and circumstances of the case by not discussing the evidence led by the parties, such judgment was set aside‑‑‑Matter was remanded to the Appellate Court for deciding the appeal afresh‑‑‑Constitutional petition was allowed in circumstances.

1998 CLC 1839 and 1984 CLC 938 ref.

Khalid‑ur‑Rehman Qureshi for Petitioner.

Sardar Aman Khan for Respondents.

Date of hearing: 27th March, 2002.

2002 C L C 1238

[Peshawar]

Before Shahzad Akbar Khan, J

MASHAL KHAN‑‑‑Petitioner

versus

Mst. NIAMAT JAN and 8 others‑‑‑‑Respondents

Civil Revision No. 214 of 1994, decided on 11th February, 2002.

(a) North-West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 5‑‑‑Right of pre‑emption arises in case of sale only‑‑­Element of sale is sine qua non for accrual of right of pre­emption.

(b) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 2(d)‑‑‑Sale‑‑‑Essential elements‑‑‑Permanent transfer of ownership of an immovable property and in exchange for a valuable consideration are two essential elements of sale.

(c) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 5‑‑‑Specific Relief Act (I of 1877), S.39‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑‑Civil Procedure Code (V of 1908), Ss.12(2) & 115‑‑‑Suit for pre‑emption based on mutation of sale‑‑­Vendee denied the sale and genuineness of the mutation‑‑‑Vendor in another suit filed against vendee got consent decree, whereby sale mutation was cancelled‑‑‑Decree in. pre‑emption suit passed by Trial Court and upheld by Appellate Court was set aside by High Court in revision and case was remanded for fresh trial ‑‑‑Pre‑emptor in compliance of remand order filed amended plaint impleading legal heirs of vendor as defendants‑‑‑De novo trial resulted into passing of decree and appeal of vendee was also dismissed‑‑‑Contention of vendee was that after cancellation of sale mutation, pre‑emptor was left with no cause of action to file suit and that factum of sale in favour of vendee had not been proved ‑‑‑Validity‑‑‑Pre‑emptor's basic and inescapable duty was to prove that sale of suit land had taken place ‑‑‑Pre‑emptor in support of his claim had examined himself and Patwari Halqa, but had not examined attesting witnesses of mutation‑‑‑Contradictions in pre‑remand and post‑remand statements of pre‑emptor on points of payment of sale price, time .and place of attestation of mutation had certainly reduced its evidentiary value to a cipher before a digit‑‑‑Subject mutation did not stand the test of S.42 of West Pakistan Land Revenue Act, 1967, as the same did not contain signature of .vendor, which spoke about his absence at the time of its attestation‑‑‑Payment of sale amount had not been proved ‑‑‑Factum of sale having been denied by both the‑vendor and vendee, could not be made the basis of pre‑emption suit ‑‑‑Pre‑emptor by filing application under S.12(2), C.P.C. had not challenged validity of consent decree, which was still alive and effectively holding the field‑‑‑No cause of action existed for pre‑emptor to file pre‑emption suit in view of non­existence of subject mutation‑‑‑High Court accepted revision petition and set aside impugned judgments and decrees of both the Courts below.

(d) Pre‑emption‑‑‑

‑‑‑‑ Sale‑‑‑Burden of proof ‑‑‑Pre‑emptor's basic and inescapable duty is to

prove that sale of suit land has taken place.

Mushtaq Ali Tahir Kheli for Petitioner.

Alhaj Sardar Bahadar Khan for Respondents.

Dates of hearing: 21st January and 11th February, 2002.

2002 C L C 1244

[Peshawar]

Before Talaat Qayum Qureshi, J

GHULAM SIDDIQUE‑‑‑Petitioner

versus

Mst. AJAIB and others‑‑‑Respondents

Civil Revision No. 158 of 1995, decided on 11th March, 2002

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

‑‑‑‑S. 8‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.72‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Recovery of possession of suit property‑‑­Concurrent findings of fact by the Courts below‑‑‑Forged receipt‑‑‑Onus to prove‑‑‑Plaintiff being owner of the suit property had sold the same to the defendants against a sum of Rs.20,000 out of which a sum of Rs.16,000 was received earlier and the remaining amount of Rs.4,000 was to be received after ten years‑‑‑Plaintiff asserted that the defendants failed to pay the balance amount of Rs.4,000, therefore, the possession of the property would be delivered to him‑‑‑Defendants produced a receipt according to which the plaintiff had received the balance amount‑‑­Plaintiff alleged that the disputed receipt was forged and fabricated‑‑­Original receipt was neither placed on record nor the plaintiff denied his signatures thereon during the cross‑examination‑‑‑Trial Court and Appellate Court dismissed the suit and appeal respectively ‑‑‑Validity‑‑­Onus was on the plaintiff to prove by positive evidence that the disputed receipt was forged and fabricated‑‑‑Mere denial of the plaintiff was not sufficient to set at naught the evidence produced by the defendants‑‑­Concurrent findings of fact by the Courts below of competent jurisdiction could not be set aside, in the absence of any jurisdictional error or defect or misreading or non‑reading of evidence or any other material irregularity warranting interference of High Court in exercise of revisional jurisdiction‑‑‑High Court declined to interfere with the judgments and decrees passed by the Courts below‑‑‑Revision was dismissed in circumstances.

Maung Ba Kyaw and another v. Nanigram Jaganath AIR 1934 Rang. 316 distinguished.

Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 SC (Pak.) 9; Feroz v. Sher and others PLD 1985 SC.254; Taus Khan v. Muhammad Shuaib 2002 MLD 651; Muhammad Amin v. Karam Das AIR 1924 Lah. 203; Sukh Dew v. Parsi AIR 1940 Lah. 475 and Saadullah v. Ibrahim AIR 1952 Lah. 518 rel.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 59 & 72 to 89‑‑‑Execution of document ‑‑‑Proof‑‑‑Procedure‑‑‑Executing a document is signing a document as consenting party thereto‑­‑Execution consists in signing a document written out, read over and understood by the person signing the same‑‑‑Execution can be proved by calling the person who has signed or has written the document or in whose presence the document has been signed or written or by calling Handwriting Expert who has examined the disputed signature‑‑‑ Execution can be proved by calling a person acquainted with the handwriting of a person who has signed or written the document‑‑‑Court can also compare the disputed signature or writing with some admitted signature or writing‑‑‑Even circumstantial evidence can be adduced in proof of execution of the document.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 59, 72 & 84‑‑‑Execution of document‑‑‑Proof‑‑‑Opinion of Handwriting Expert whether binding on Court‑‑‑Even if the opinion of Handwriting Expert is available on record, the same is a weak type of evidence and scarcely deserves serious consideration because the Courts of law are not under legal obligation to base their findings merely on Expert's opinion; there must be positive evidence available on record to prove a particular document.

Ch. Abdul Hamid v. Deputy Commissioner and others 1985 SCMR 359; Law of Evidence, Vol. I by M. Monir Khan, J. and Syed Shabir Hussain v. The State 1968 SCMR 1126 ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 72‑‑‑Civil Procedure Code (V of 1908), O.XIII, R.4‑‑‑Execution of document‑‑‑Failure to exhibit the original document‑‑‑Disputed document was produced three times before the Trial Court, the same was examined each time and returned to the person producing the same‑‑­Effect‑‑‑Where the Trial Court did not exhibit the original document and the same was returned each time, party producing the document was not at fault in circumstances.

Mirza Muhammad Sharif and others v. Mst. Nawab Bibi and others 1993 SCMR 462 ref.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 103‑‑‑Contradicting registered document through receipt‑‑­Validity‑‑‑Receipt being not an instrument/document, therefore, the registered documents cannot either be contradicted or varied through the same.

Goseti Sobba Raw and others v. Varigonda Narasimham 17 Mad. 368 ref.

(f) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑S. 17‑‑‑Receipt, registration of‑‑‑Receipt does not require registration under Registration Act, 1908.

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

‑‑‑‑S. 30‑‑‑Registration Act (XVI of 1908), S.49‑‑‑Document not registered‑‑‑Admissibility of such document in evidence ‑‑‑Validity‑‑­Where a document which requires registration but has not been registered, such document is admissible in evidence.

Muhammad Akram v. Syed Imrao Ali Shah 1988 CLC 2228 and Kalu and another v. Ghulam Siddiq and 4 others PLD 1991 Pesh. 111 ref.

Saeed Baig for Petitioner.

Sheikh Wazir Muhammad for Respondents.

Date of hearing: 4th March, 2002.

2002 C L C 1257

[Peshawar]

Before Ejaz Afzal Khan, J

Mst. RAZIA SULTANA and 2 others‑‑‑Petitioners

versus

CHAIRMAN, EVACUEE TRUST PROPERTY BOARD, LAHORE and 13 others‑‑‑Respondents

Writ Petition No.2 of 2000, decided on 19th February, 2002.

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

‑‑‑‑O. V, R. 9‑‑‑Service of process‑‑‑Object‑‑‑Proceeding against a person without effecting service on him‑‑‑Effect‑‑‑Purpose behind effecting service on a party being proceeded against is not a formality but a requirement of law inform the person about proceedings pending before a Court, Tribunal or persona designata and to provide such person opportunity to vindicate his position and voice its point of view about the matter forming subject‑matter of proceedings before it or him as the case may be‑‑‑Such object is envisaged in the principle of audi alteram partem.

(b) Maxim‑‑‑

‑‑‑‑"Audi alteram partam": No one shall be condemned unheard‑‑‑Where an order has been passed against a party without complying with fundamental principle, viz, audi alteram partem, such order is nullity and non‑entity notwithstanding the fact that the proceedings resulting in the order were sacred and sacrosanct.

(c) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)‑‑‑

‑‑‑‑Ss, 8, 10 & 17‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Adequate alternate remedy‑‑­Property in question was declared as an evacuee property by the Evacuee Trust Property Board and its allotment was cancelled from the name of the original allottee; resultantly transfer in the name of the petitioners was also cancelled‑‑Petitioners, instead of filing revision under S.17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, filed the Constitutional petition‑‑‑Contention of the respondent was that as the revision under S.17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, was adequate remedy, therefore, the Constitutional petition was not maintainable‑‑‑Validity‑‑‑Authority before whom the revision was to be filed was a functionary and part and parcel of the department, therefore, such Authority could not become a judge in its own cause and the remedy of revision could, not be an adequate one when it was not heard by an independent, impartial and non‑partisan forum‑‑‑Remedy of revision under S.17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, to the Federal Government, thus was neither effective nor adequate‑‑‑Such revision was prone to be influenced by the department and was incapable of infusing confidence into the minds of litigants that their grievances had been dealt with adequately, fairly, justly and in accordance with law‑‑‑Order passed by the Authorities was set aside and the case was remanded to the Authorities for decision afresh in accordance with law‑‑‑Constitutional petition was allowed in circumstances.

Rauf Ahmad v. Secretary to the Government of Pakistan, Ministry of Religious and Minority Affairs, Islamabad and 9 others PLD 1991 Lah. 33; Ataullah Malik v. Custodian, Evacuee Property West Pakistan, Karachi and others PLD 1964 SC 236 and Federation of Pakistan v. Iftikharuddin and another 2000 SCMR 1 ref.

Dost Muhammad Khan for Petitioners

Gohar Zaman Khan Kundi for Respondents

Date of hearing: 19th February, 2002.

2002 C L C 1262

[Peshawar]

Before Talaat Qayum Qureshi, J

FARIDOON‑‑‑Petitioner

versus

SHAFIULLAH KHAN and others‑‑‑Respondents

Civil Revision No. 249 of 2000, heard on 12th April, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑ O. XLI, Rr. 31, 33 & S. 115‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑‑Judgment of Appellate Court‑‑‑Points not determined in judgment‑‑‑Appellate Court while dealing with the appeal in cursory manner set aside the judgment and decree passed by the Trial Court‑‑‑Appellate Court neither gave the issuewise findings nor points for determination as envisaged under O.XLI, R.31, C.P.C. were set out and decision gave thereon‑‑‑Appellate Court was swayed with the impression that the Trial Court had decided all the issues in favour of plaintiff except two issues and the same could not be reopened‑‑­Validity‑‑‑Incumbent upon the Appellate Court under O.XLI, R.33, C.P.C. to have exercised its jurisdiction and finding given by the Trial Court on all the issues should have been thrashed out‑‑‑Judgment and decree passed by the Appellate Court was set aside in revision by the High Court and the case was remanded to the Appellate Court for decision afresh.

Mst. Namdara and 3 others v. Mst. Sahibzadi and 2 others 1998 SCMR 996; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Messrs S.M. Yusuf & Brothers v. Mirza Muhammad Mehdi Pooya and another PLD 1965 SC 15; Ahmad Khan v. Sattar Din PLD 1981 SC 148; Hakim Muhammad Nabi Khan and 2 others v. Warasatullah through his Legal Representatives 1987 SCMR 1698; Morio Goth Association v. Muhammad Bachal and 6 others 1985 CLC 1680; Executive Engineer, C&W, Mansehra and 2 others v. Muhammad Nasim Khan and 4 others 2002 CLC 427; Mst. Aisha v. Mst. Fatima and others 1991 CLC 1499 and Muhammad Mustaqeem through his Legal Heirs v. Abdul Haleem through his Legal Heirs and others 1992 CLC 435 ref.

Ghulam Nabi for Petitioner.

Abdul Bari and Muhammad Ismail Khalil for Respondents.

Date of hearing: 12th April, 2002.

2002 C L C 1267

[Peshawar]

Before Shah Jehan Khan Shahzad Akbar Khan, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA, WAPDA HOUSE, LAHORE‑‑‑Appellant

versus

SULTAN RAJA ERAJ ZAMAN. and 133 others‑‑‑Respondents

Regular First Appeal No.1, Civil Revisions Nos.89 of 1998 and 115 of 1996, decided on 10th April, 2002.

Limitation Act (IX of 1908)‑‑‑

‑‑‑S. 14‑‑‑Civil Procedure Code (V of 1908), O.XXI, R.10‑‑­Proceedings before wrong forum ‑‑‑Condonation of delay‑‑‑Filing of civil suit instead of execution petition‑‑‑Appellant conceded that the order passed by High Court earlier was required to be executed by making application but inadvertently or under wrong advice filed the suit‑‑‑High Court advised that the appellant could move proper application for the implementation of earlier order of High Court with an application for condonation of delay caused due to proceedings before wrong forum under misconception or wrong advice‑‑‑Appeal was dismissed accordingly.

Tahir Hussain Lughmani, S. Ghulam Mustafa and Abdul Qadir Khan for Appellant.

Khalid Rehman Qureshi for Respondent No. 1.

Date of hearing: 10th April, 2002.

2002 C L C 1269

[Peshawar]

Before Talaat Qayum Qureshi, J

M.E.O. and others‑‑ ‑Petitioners

versus

Mian SARDAR SHAH and others‑‑‑Respondents

Civil Revision No. 228 of 1994, decided on 18th March, 2002.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Condonation of delay‑‑‑Lengthy process of Government Department in disposal of litigation matters‑‑‑No ground for condonation of delay.

Lahore High Court, Lahore through Registrar v. Nazar Muhammad Fatiana and others 1998 SCMR 2376 and Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through Central Manager and 3 others 1998 SCMR 307 ref.

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

‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Revision‑‑‑Condonation of delay‑‑‑Unexplained delay of two days‑‑‑Period of limitation expired during Eid holidays and the revision petition was filed two days after the holidays and that too was incomplete in all respects and the office had to return the same‑‑‑Petition being time‑barred was dismissed in circumstances.

Lahore High Court, Lahore through Registrar v. Nazar Muhammad Fatiana and others 1998 SCMR 2376 and Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through Central Manager and 3 others 1998 SCMR 307 ref.

Salahuddin, Dy.A.‑G. for Petitioners.

Muhammad Najeeb Shah for Respondents

Date of hearing: 18th March, 2002.

2002 C L C 1272

[Peshawar]

Before Nasirul Mulk, J

IMTIAZ‑‑‑Petitioner

Versus

Mst. SHAGUFTA--Respondent

Civil Revisions Nos. 274 and 275 of 2001, decided on 25th January, 2002.

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

--Ss. 115 & 149—West Pakistan Family Courts Act (XXXV of 1964), S.14---Revision—Failure to make deficiency in court-fee---Suit for maintenance was decreed against the petitioner and Appellate Court directed the petitioner to deposit requisite court-fee---Despite many opportunities, the petitioner failed to deposit the court‑fee‑‑‑Appellate Court dismissed the appeal for non‑deposit of court‑fee‑‑‑Plea raised by the petitioner was that he did not know as to what amount of court‑fee was to be deposited‑‑‑Validity‑‑‑Such stand was no ground to set aside the order passed by the Appellate Court‑ ‑‑Revision was dismissed in limine.

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

‑‑‑‑O. XVII, .R. 5‑‑‑Adjournment‑‑‑Return of Presiding Officer from leave‑‑‑When the Presiding Officer returns from leave, the Court has to conduct the same proceedings for which the case was adjourned on the date prior to the leave.

Akhtar Ali for Petitioner.

Muhammad Alam for Respondent.

Date of hearing: 25th January, 2002.

2002 C L C 1391

[Peshawar]

Before Ijaz‑ul‑Hassan, J

Haji MUHAMMAD UMAR‑‑‑Appellant

Versus

FAZAL REHMAN‑‑‑‑Respondent

Second Appeal from Order No‑5 of 1999, decided on 29th March, 2002.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(3)(a)(ii)‑‑‑Bona fide personal need of landlord‑‑‑Good faith of landlord‑‑‑Proof‑‑‑Good faith had to be proved by landlord by clear and definite evidence which could inspire confidence and was primary duty of landlord to establish that premises in dispute were required by him in good faith for personal need and that ejectment application had not been filed for extraneous considerations.

Altaf Aussain v. Mst. Nuzhat‑un‑Nisa PLD 2000 SC 67; Khawaja Muhammad Abdullah v. Sufi Faiz Muhammad 1980 SCMR 974; Allah Rakha v. Muhammad Shafi 1978 SCMR 437; Nooruddin and others v. Asghar Ali and others 1968 SCMR 1087; M. Yazdan v. Mst. Zainab Bai 1984 CLC 2058; Muhammad Aslam v. Muhammad Younas and others 1928 CLC 163; Haji Majid v. Haji Imamuddin 1981 CLC 109; Muhammad Ramzan v. Abdul Razzaq 1982 CLC 1489 Muhammad Saeed v. Dr. Sultan Muhammad 1983 CLC 2407; Bata (Pakistan) Limited v. Tahir Mahmood 1994 CLC 337; Mushtaq Ahmad v. Additional District Judge and others 1986 MLD 428; Tahir Umar v Messrs Bata Shoe (Pakistan) Limited 1991 MLD 1236; Faqir Khan v Khalid Hussain and others PLD 2000 Pesh. 65; Samiullah v. Mst. Begum Jehan 1986 CLC 2628 and Malik Din v. Manzoor Ali PLD 1985 Quetta 142 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(3)(a)(ii)‑‑‑Bona fide personal need of landlord ‑‑‑Proof‑‑‑Ejectment of tenant was sought by landlord on ground that shop in question was required by landlord in good faith. for use of his son who was engaged in goldsmith business in a rented shop‑‑‑Burden to prove that fact was on landlord, but he had failed to discharge the same by producing satisfactory evidence to prove his good faith or his bona fides‑‑‑Evidence produced by landlord fell short of required standard which had rightly been ignored by lower forums‑‑‑Tenant had succeeded to show that landlord was in habit of filing such applications for enhancement of rent of premises‑‑‑Tenant had produced in evidence three other ejectment applications which were filed by landlord against other tenants simply for purpose of enhancement of rent and subsequently were withdrawn by landlord in view of willingness of those tenants to increase rent‑‑‑Rent Controller and Appellate Authority below had rightly dismissed ejectment application filed by landlord against tenant.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13(3)(a)(ii) & 15(4)‑‑‑Bona tide personal need of landlord‑‑­Concurrent findings of fact‑‑‑Rent Controller dismissed ejectment application filed by landlord against tenant on ground of his bona fide need in respect of shop in question and that dismissal order was upheld in appeal‑‑‑Validity‑‑‑Concurrent verdict of Courts below, in absence of any misreading or non‑reading of evidence, could not be interfered with in second appeal by High Court.

Allah Rakha v. Muhammad Shafi 1978 SCMR 437 ref.

M. Hazrat Usman for Appellant.

Mian Iqbal Hussain for Respondent.

Date of hearing: 15th March, 2002.

2002 C L C 1401

[Peshawar]

Before Nasirul Mulk and Malik Hamid Saeed, JJ

Mst. SHAMIM ARA ‑‑‑Petitioner

Versus

RAFIULLAH and 2 others‑‑‑Respondents

Writ Petition No.37 of 2002, decided on 8th May, 2002.

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

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Partial decree, execution of‑‑‑Powers of Executing Court‑‑­Family suit were decreed in terms of compromise between the parties whereby the wife had agreed to live with the husband and in return the husband was to shift the dowery articles to the house where the spouses were to live together‑‑‑Wife, refused to live with the husband, after disposal of the suits, and filed a suit for dissolution of marriage which was decreed by the Family Court and the decree was maintained by High Court‑‑‑Wife initiated execution proceedings for the recovery of dowry articles‑‑‑Husband raised objection to the maintainability of the proceedings on the ground that as the wife did not perform her part of agreement, therefore, the execution of compromise decree would be a partial execution‑‑‑ Family Court disallowed the objection, while the Appellate Court accepted the appeal and directed the Family Court to restore the suit for recovery of dowry articles‑‑‑Validity‑‑‑Execution of the decree in favour of the wife for the return of the dowry articles would amount to execution of a partial decree in her favour which was not just and proper as the Executing Court could not do the same, because the wife had released herself from performing her obligation on her side under the decree granted in favour of the husband‑‑‑If the wife would be allowed to execute the decree, the same would amount on the part of Executing Court to go behind the decree which could not be done‑‑­Seeking partial execution of decree by a person without fulfilling his own obligation under the same decree disentitled the person from seeking the requisite relief‑‑‑Order passed by the Appellate Court was not suffering from any illegality as the same was well‑reasoned and did not call for any interference by High Court‑‑‑Constitutional petition was dismissed in limine.

AIR 1956 SC 359 and AIR 1972 SC 726 ref.

M. Iqbal Hussain for Petitioner

Roohul Amin Khan for Respondents, Date of hearing: 8th May, 2002.

2002 C L C 1408

[Peshawar]

Before Sardar Muhammad Raza, C.J.

and Ijazul Hassan, J

HIDAYAT KHAN and another‑‑‑Petitioners

Versus

Mufti IBRAR AHMAD KHAN

and 3 others‑‑‑Respondents

Writ Petition No.306 of 2001, decided on 20th November, 2001.

(a) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑‑Suit for pre­-emption‑‑‑ Denial of sale‑‑‑Plaint, rejection of‑‑‑Prior to filing of written statement, vendor filed application under O.VII, R.11, C.P.C. wherein he denied any sale transaction of the suit property‑‑‑Trial Court as well as the Appellate Court dismissed the application concurrently ‑‑‑Validity‑‑­Denial of transaction by the vendor had made the sale a, question of dispute and being a question of fact, the same had to be proved by the party on .whom 'lay the burden‑‑‑Material question of fact going to the root of the case could not be taken for granted on mere application under O.VII, R.11, C.P.C.‑‑‑In order to resolve a question of fact some evidence was required to be adduced by the parties, the provisions of O.VII, R.11, C.P.C. could not be brought into play‑‑‑High Court declined to interfere with the orders passed by,.the Courts below‑‑­Revision was dismissed in limine.

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

‑‑‑‑O. VI, R.1 & O. VII, R.11‑‑‑Application under O. VII, R.11, C.P.C. is not pleading.

Mirza Abdullah Jan for Petitioners

2002 C L C 1416

[Peshawar]

Before Shakirullah Jan and

Talaat Qayum Qureshi, JJ

Mst. ABIDA BIBI‑‑‑Petitioner

Versus

ABDUL LATIF and 7 others‑‑‑‑Respondents

Writ Petition No.25 of 1999, decided on 6th April, 2000.

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

‑‑‑‑S. 25‑‑‑Custody of minor son‑‑‑Considerations and criteria for appointment of guardian‑‑‑Paramount consideration and basic criteria for appointment of guardian and restoration of custody was welfare of the minor‑‑‑Love and affection which mother could bestow upon the minor was incomparable to love and affection of other relatives of the minor‑‑­Mother of minor was earning her livelihood by working in embroidery school and her brothers were mechanics in local workshop and they would also help her in providing good education to the minor‑‑‑Even otherwise mother could not be refused custody of her minor son simply on ground that she was a poor woman‑‑‑Father of the minor was duty bound to provide the minor with all necessities of life and to maintain him wherever he resided‑‑‑Nothing was on record to indicate that mother of minor was a woman of bad character‑‑‑Father of minor had no interest in welfare of minor as he had not only neglected him, but had also failed to maintain his wife/mother of the minor‑‑‑Mother in circumstances was entitled to custody of minor son.

Syed Amjad Shah for Petitioner.

Qazi Muhammad Ghazanfar for Respondent.

Date of hearing: 29th March, 2000.

2002 C L C 1446

[Peshawar]

Before Tariq Parvez Khan

and Ijaz‑ul‑Hassan, JJ

SABIR REHMAN‑‑‑Petitioner

Versus

SECRETARY TO GOVERNMENT OF N.W. F. P., FORESTRY, FISHERIES, WILDLIFE DEPARTMENT AT CIVIL SECRETARIAT, PESHAWAR

and 7 others‑‑‑Respondents

Writ Petition No.531 and C. M. No.756 of 2002, decided on 31st May, 2002.

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

‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope­ Alternate remedy‑‑‑Jurisdiction conferred on High Court by Art.199 of Constitution of Pakistan (1973) is an extraordinary jurisdiction which could be invoked only to meet extraordinary situations‑‑‑Such jurisdiction was not meant to be treated as an additional or as "another" remedy provided by law‑‑‑High Court would have jurisdiction under Art. 199 of Constitution of Pakistan (1973) only when law from which a matter emanated did not provide any other adequate remedy to cater for the problem in issue‑‑‑Prime question in every case of Am. 199 of Constitution of Pakistan (1973) was whether an aggrieved person, who resorted to Constitutional jurisdiction of High Court, had or had not any other adequate remedy available to him under law.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope‑‑­Question of fact‑‑‑High Court in exercise of its powers under Art, 199 of Constitution of Pakistan (1973) would not ordinarily, embark upon an exercise to determine intricate contentions and complicated questions of fact‑‑‑Resolution of such controversial issues ordinarily was left to proper forums prescribed by law, because indulging in such exercise would have effect of pre‑empting and encroaching upon jurisdiction lawfully vesting in competent officers and Courts‑‑‑Involvement of High Court in matters which could be competently, properly and adequately dealt with by other forums prescribed by law, might have adverse effect on disposal of matters which had to be dealt with exclusively by High Court‑‑‑Disputed questions of fact which required recording of evidence being not the domain of High Court under Art. 199 of Constitution of Pakistan (1973), could not be decided in Constitutional jurisdiction of High Court.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope‑‑­Contractual rights were not enforceable by recourse to Constitutional jurisdiction of High Court.

Messrs Moman Motors Co. v. Regional Transport Authority PLD 1962 ‑SC 108; Jaiey & Company v. Union of India AIR 1972 Cal. 253 and M. Muzaffar Din Industries v. Settlement and Rehabilitation Department, Lahore 1968 SCMR 1136 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope‑‑­Jurisdiction under Art.199 of Constitution of Pakistan (1973) was to be exercised where no other adequate remedy was available and petitioner before seeking remedy under Art.199 of Constitution of Pakistan, 1973 had to show that he had no other adequate or efficacious remedy available to him‑‑‑Article 199(1) of Constitution of Pakistan (1973), conferred on High Court a discretion of fairly wide amplitude, but at the same time it imposed a responsibility on High Court to exercise discretion with some circumspection‑‑‑Satisfaction of High Court that no other adequate remedy provided in law was available to aggrieved party, was condition precedent for exercise of jurisdiction. under Art. 199 of Constitution of Pakistan (1973).

Mian Iqbal Hussain for Petitioner.

Date of hearing: 31st May, 2002.

2002 C L C 1517

[Peshawar]

Before Talaat Qayum Qureshi, J

MUHAMMAD NAZEEF and others‑‑‑Petitioners

Versus

Mst. MUMTAZ BEGUM‑‑‑‑Respondent

Civil Revision No.230 of 1998, decided on 29th April, 2002

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

‑‑‑‑O. VI, Rr.4 & 7‑‑‑Pleadings, proof of‑‑‑Plea not raised‑‑‑Effect‑‑‑Plea has to be taken in the pleadings before it can be allowed to be proved and if in a case the plea is not taken in the pleadings, the party would not be allowed to lead evidence in support thereof and even if some evidence is allowed, the same would not be looked into.

Amir Shah v. Ziarat Gul 1998 SCMR 593 and Siraj Munir through L. Rs. and 3 others v. Rai Sarwar Khan 2001 CLC 1059 ref.

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

‑‑‑‑Ss. 41 & 52‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.129‑‑‑Entries in record of rights as proof of title to immovable property‑‑‑Entries in Record of Rights are strong pieces of evidence in support of a person's title to immovable property and ought to be relied upon in absence of satisfactory evidence in rebuttal produced by opposite party.

Manzoor Hussain and 3 others v. Muhammad Siddique 2000 CLC 623 and Nooruddin and others v. Pakistan and others 1997 CLC 1971 ref.

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

‑‑‑‑S. 8‑‑‑Suit for recovery of possession‑‑‑Title over suit property‑‑­ Landlord and tenant‑‑‑Failure to prove relationship of landlord and tenant between the parties‑‑‑Effect‑‑‑Where the plaintiff could not prove that she had inducted the petitioners in the suit house as her tenant, but she successfully proved her ownership of the suit house, plaintiff was entitled for grant of decree for possession.

Mulibai v. Vassibai and another AIR 1926 Sind 98 ref.

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

‑‑‑S. 8‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss.41 & 52‑‑‑Recovery of possession of immovable property‑‑‑Title over suit property‑‑‑Proof‑‑‑Entries in Revenue Record‑‑‑Value‑‑‑Plaintiff had proved her ownership over the suit property through reliable oral and documentary evidence and the defendants had failed to rebut the same‑‑­Entries in Revenue Record were in the name of the plaintiff which were supported by the evidence of the Revenue Authorities in favour of the plaintiff‑‑‑Documentary evidence placed on record by the defendants was not relevant for the purpose of the present case‑‑‑Trial Court dismissed the suit on the ground that the plaintiff failed to prove the plea of induction of the defendants into the suit property as tenant on payment of "Khakshora" to her‑‑ ‑‑Appellate Court allowed the appeal and decreed the suit in favour of the plaintiff‑‑‑Validity‑‑‑Findings of the Appellate‑ Court were just, proper and based on proper appreciation of evidence and law applicable to the case‑‑‑High Court did not find any misreading of evidence or non‑reading of evidence, any jurisdictional error or material irregularity warranting interference in its revisional jurisdiction‑‑­Revision was dismissed in circumstances.

Muhammad Amin Khattak for Petitioners.

Ziaur Rehman for Respondent.

Date of hearing: 29th April, 2002.

2002 C L C 1523

[Peshawar]

Before Talaat Qayum Qureshi

and Muhammad Qaiser Khan, JJ

NASRULLAH JAN‑‑‑Petitioner

Versus

Mst. FARZANA BEGUM

and 6 others‑‑‑Respondents

Writ Petition No.330 and Civil Miscellaneous No.460 of 2002, decided on 15th April, 2002.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Bona fide personal need of landlord‑‑‑Choice of landlord‑‑­Landlord has a complete option to choose any of his properties occupied by tenants to avail for his personal requirement.

S. M. Nooruddin and 9 others v. SAGA Printers 1998 SCMR 2119 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑S. 13‑‑‑Bona fide personal need of landlord‑‑‑Jurisdiction of Rent Controller‑‑Scope‑‑ Rent Controller may pass eviction order on the ground of personal use in favour of landlord if claim of landlord is bona fide and his requirement is in good faith.

Jehangir Rustam Kalia u. State Bank of Pakistan 1992 SCMR 1296; F. R. Irani & Co. v. Begum Feroz 1996 SCMR 1178; Muhammad Shuaib Alam v. Muhammad Iqbal 2000 SCMR 903; Sardar Nabeel Wali v. Additional District Judge/Appellate Authority Sahiwal and others PLD 2000 SC 829 and Iqbal Book Depot v. Khatib Ahmad arid 6 others 2001 SCMR 1197 ref.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973) Art.199‑‑‑Constitutional petition‑‑‑Bona fide personal need of landlord‑‑‑Concurrent findings of fact by the Courts below‑‑‑Reappraisal of evidence by High Court in exercise : of Constitutional jurisdiction under Art. 199 of the Constitution‑‑‑Validity‑‑‑High Court does not sit as Court of appeal and cannot decide whether evidence sufficed for conclusion arrived by lower forum and is not at all obliged to go into the merits of the case de novo, reappraise and, assess evidence on question of personal need of landlord‑‑‑High Court, while exercising its Constitutional jurisdiction cannot disturb the concurrent findings of facts recorded by the Courts below on reappraisal of evidence unless it is shown that the Courts below have either misread the evidence or perversely appreciated the evidence‑‑‑Merely because that after fresh appraisal of evidence High Court can reach a different conclusion is no ground to disturb the concurrent findings of facts recorded by he Courts below‑‑‑Eviction orders passed by the Rent Controller as well as the Appellate Court was neither illegal nor perverse‑‑‑High Court declined to interfere with the orders passed by the Courts below‑‑‑Petition was dismissed in limine.

Messrs Muhammadia Medical Hall, Khan Arm Dealers through Khurshid Alam v. Mahmoodul Hassan and 3 others NLR 1982 SC1 23 fol.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(4)‑‑‑Bona fide personal need of landlord‑‑‑Protection to tenant‑‑­Scope‑‑‑Where landlord fails to occupy the premises within one month of the date of obtaining possession, the tenant who has been affected may apply to the Rent Controller under S.13(4) of West Pakistan Urban Rent Restriction Ordinance, 1959, for an order directing that the possession should be restored to the tenant‑‑‑Full protection to the tenant has been provided by S.13(4) of West Pakistan Urban Rent Restriction Ordinance, 1959.

Abdul Aziz Kundi for Petitioner.

2002 C L C 1527

[Peshawar]

Before Talaat Qayum Qureshi

and Ijazul Hassan Khan, JJ

SHER AZAM‑‑‑Petitioner

Versus

PRINCE AMIN COLONY through

Secretary and another‑‑‑Respondents.

Writ Petition No.322 of 2002, decided on 19th April, 2002.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Eviction proceedings before Rent Controller ‑‑‑Nature‑‑­Recording of evidence‑‑‑Principles‑‑‑Such proceedings are not in stricto senso judicial that evidence should be recorded in the same manner as in a civil suit‑‑‑Rent Controller being "persons designata" is required to satisfy himself about the ground in the ejectment petition and pass the orders in consonance with justice‑‑‑Principal object behind all legal formalities is to safeguard the paramount interest of justice‑‑‑Legal precepts are devised with a view to impart certainty, consistency and uniformity to the administration of justice to secure the same against arbitrariness, error of individual judgment and mala fides.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Eviction proceedings‑‑‑Procedure to be followed by Rent Controller.

Following are the guidelines to be followed by Rent Controller in eviction proceedings: ‑‑

(1) Affidavits of not more than two witnesses in support of the ejectment application shall be filed in the Court in addition to the affidavit of the petitioner himself in support of the contents of the ejectment petition.

(2) While replying to the ejectment application the respondent shall be similarly required to submit his own affidavit, and affidavit of two other witnesses in support of his affidavit on the date fixed in the notice served upon him.

(3) The parties shall be bound to produce their witnesses for purpose of their respective cross‑examination on the day fixed by the Court.

(4) A party obtaining affidavits of witnesses in support of his petition/reply would be bound to produce them in the Court for cross­-examination and in case of its failure to do so its evidence shall be excluded from consideration.

(5) Appeals against interim order of Rent Controller and resort to Constitutional jurisdiction against orders at intermediate stage arising out of the ejectment proceedings should be discouraged.

(6) Court to take serious view of, the situation when witnesses for cross‑examination in support of their affidavits deliberately avoid/ evade appearance in Court.

(7) Adjournment of ejectment petition should not be allowed except under unavoidable circumstances on an application moved by a party supported by affidavit. In such cases also adjournment should not be made for a period exceeding three days. Following the above procedure in ejectment matters appears to be necessary to achieve the goal of expeditious disposal of a case within a period of three months particularly in respect of residential tenements having regard to the decisions unanimously taken in the Chief Justices Committee meeting held on 26‑2‑2000.

(8) There is need for organization and methodical arrangement of supervision and control by the High Courts over the functioning of the subordinate Courts which will be in accord with the decision reached at the Chief Justice Committee meeting held on 26‑2‑2000. The District and Sessions Judges of all provinces would be responsible for the integrity and expeditious disposal of the cases and working of the subordinate courts within their respective jurisdiction.

Barkat Ali v. Muhammad Ehsan and others 2000 SCMR 556 fol.

(c) West Pakistan Urban Rent Restriction Ordinance (V1 of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Ejectment of tenant‑‑‑Concurrent findings of fact by the Courts below‑‑‑Failure to produce evidence‑‑‑Tenant did not comply with the order of the Rent Controller in furnishing the requisite affidavits despite passing of nine years of filing of the eviction petition‑‑‑On such failure of the tenant, the Rent Controller passed ejectment orders against the tenant‑‑‑Appeal against the order of the Rent Controller was dismissed by the Appellate Court‑‑‑Validity‑‑‑Rent Controller had properly appreciated the evidence available on record and the judgment was in line with the judgment of Supreme Court in case titled Barkat Ali v. Muhammad Ehsan and others reported as 2000 SCMR 556‑‑‑Appellate Court had also rightly concurred with the findings of the Rent Controller‑‑‑No illegality or perversity was found in the judgment of the Courts below warranting interference in exercise of Constitutional jurisdiction by High Court‑‑­Constitutional petition was dismissed in limine.

Barkat Ali v. Muhammad Ehsan and others 2000 SCMR 556 fol.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

---‑S. 13‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Relationship of landlord and tenant‑‑‑Reappraisal of evidence‑‑­Interference of High Court in concurrent findings of fact by the Courts below in exercise of its Constitutional jurisdiction‑‑‑Validity‑‑‑High Court in Constitutional petition does not sit as Court of appeal and cannot decide whether evidence sufficed for conclusion arrived at and is not at all obliged to go into the merits of the case de novo, reappraise and assess evidence on question of existence of relationship of landlord and tenant between the parties‑‑‑While exercising Constitutional jurisdiction, High Court cannot disturb the concurrent findings of facts recorded by the Courts below on reappraisal of evidence unless it is shown that the Courts below either misread the evidence or perversely appreciated the evidence‑‑‑Merely because of fresh appraisal of the evidence High Court can reach a different conclusion is no ground to disturb the concurrent findings of facts recorded by the Courts below.

Messrs Muhammadia Medical Hall, Khan Arm Dealers through Khurshid Alam v. Mahmood‑ul‑Hassan and 3 others NLR 1982 SCJ 23 ref.

Afridi Khan for Petitioner

2002 C L C 1533

[Peshawar]

Before Abdur Rauf Khan Lughmani

and Eajz Afzal Khan, JJ

MUHAMMAD IQBAL and 17 others‑‑‑Petitioners

Versus

GHAUNSULLAH KHAN and 17 others‑‑‑Respondents

Writ Petition No. 167 of 2000, decided on 8th March, 2002.

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

‑‑‑‑Arts. 203‑D & 264‑‑‑General Clauses Act (X of 1897), S.6‑‑Expressions "cease to have effect" as envisaged in Art.203‑D of the constitution and "effect of repeal of law"‑‑Distinction‑‑Declaration of a law repugnant to Injunctions of Islam‑‑Effect‑ Expression "ceased to have effect" cannot be said to be synonymous with repeal as is envisaged by Art.264 of the Constitution and S.6 of the General Clauses Act, 1897; in the former eventuality even pending cases cannot be dealt with in accordance with the law which has been held repugnant to the Injunctions of Islam and ceased to have effect after the date mentioned in the decision of Supreme Court while in the latter eventuality a proceeding pending in a Court or any such right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed are fully protected unless a different intention appears from repealing enactment.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 28‑‑‑Extinguishment of right to property‑‑‑Dictum laid down in case Maqbool Ahmad v. Government of Pakistan, reported as 1991 SCMR 2063‑‑ Applicability‑ Provision of S.28 of the Limitation Act, 1908, ceased to have effect after 31‑8‑1991 as laid down in 1991 SCMR 2063‑‑‑Where a suit instituted under S.28, Limitation Act, 1908 was decreed before the target date the same was considered a transaction past and closed but if not then it could not have been decreed thereafter.

Maqbool Ahmad v. Government. of Pakistan 1991 SCMR 2063 ref.

(c) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 58(d)‑‑‑Limitation Act (IX of 1908), 5.20(2) & Art.148‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑­Usufructuary mortgage‑‑‑Receipt of produce of mortgaged property‑‑­Redemption of mortgaged property‑‑‑Limitation‑‑‑Mortgaged property was in possession of the mortgagee and the mortgagor applied to the Revenue Authorities after sixty years for redemption of the property‑‑­Authorities decided the matter in favour of the mortgagor and redeemed the property‑‑‑Contention of mortgagee was that the orders passed by Revenue hierarchy were against' the provisions of Art.148 of the Limitation Act, 1908, as the application for redemption of the property was filed beyond sixty years‑‑‑Validity‑‑‑Where mortgagee was in possession of the mortgaged property and was in receipt of the usufructs, such receipt would be considered as an acknowledgement of mortgage and would be counted towards the payment of mortgage money within the terms of S.20(2) of the Limitation Act, 1908‑‑‑Every such receipt would give rise to a fresh period of limitation‑‑‑When the mortgage was usufructory in nature, the, question of extinguishments of title of the mortgagors and perfection of the title of the mortgagee through prescription would not arise‑‑‑Mortgagee, in the present case, did not challenge the judgment passed against him in the higher forum, thus the same had attained finality‑‑‑High Court declined to interfere with the judgment passed against the mortgagee‑‑‑Constitutional petition was dismissed in circumstances.

Abdul Haq v. Ali Akbar 1999 SCMR 2531 ref.

Gohar Zaman Khan Kundi for Petitioners

Rustam Khan Kundi and Karim Khan Marwat for Respondents

Date of hearing: 7th February, 2002.

2002 C L C 1539

[Peshawar]

Before Talaat Qayum Qureshi, J

Mst. ZARGOON and others‑‑‑Petitioners

Versus

Mst. SHADANA and others‑‑‑Respondents

Civil Revisions Nos. 183 and 200 of 1996, decided on 22nd April, 2002.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

----Art. 133‑‑‑Evidence‑‑‑Failure to cross‑examine on a fact‑‑‑Effect‑­‑If a witness is not cross‑examined on the fact and his statement goes un-rebutted and unquestioned, such statement can be taken as correct.

Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 and Haji Din Muhammad through legal heirs v. Mst. Hajira Bibi and others PLD 2002 Pesh. 21 ref.

(b) Qanun‑e‑Shahadat (l0 of 1984)‑‑‑

‑‑‑‑Art. 62‑‑‑Existence of any custom‑‑‑Proof‑‑‑Opinion of third person under the provisions of Art.62 of the Qanun‑e‑Shahadat, 1984, is relevant in respect of existence of any custom.

Mst. Sohab Kulli and others v. Mst. Balour Jan and others 1989 CLC 407 ref.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 26‑‑‑Custom‑‑‑Onus to prove‑‑‑Custom must be pleaded in specific terms and proved inductively by the person who pleads it‑‑‑

Where custom was pleaded but not substantiated by credible evidence, the same would be deemed to be disproved.

Zainul Hassan Mian, and others v. Mst. Khuwand Naka and others 1998 MLD 1857 and Amirullah through legal heirs v. Surat Ali and 17 others PLD 1991 Pesh. 29 ref.

(d) Islamic Law----

‑‑‑‑Succession‑‑‑Passing of title to legal heirs‑‑‑Principles‑‑‑As soon as a Muslim dies. succession of his property opens‑‑‑No State intervention or clergies intervention is needed for passing of title immediately to the heirs‑‑‑Muslim's estate legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

(e) Islamic Law‑‑‑

‑‑‑‑Succession‑‑‑Owners of the disputed property were two brothers‑‑­One died earlier leaving behind a widow and a son‑‑‑Widow contracted second marriage with the other brother of the deceased and from the wedlock plaintiff (daughter) was born‑‑‑Property owned by the step­father of the plaintiff was devolved upon his son and after the death of the son the property vested in the paternal‑uncle of the son‑‑‑Plaintiff asserted that the parties were governed by Islamic Law and not by the Custom, therefore, the mutation of inheritance in favour of the paternal uncle was illegal‑‑‑Suit as well as appeal were dismissed by the Trial Court and Appellate Court respectively‑‑‑Validity‑‑‑Where the inheritance of the deceased person was dealt with in accordance with Sharia (Islamic Law), half share out of the property left by the father of the plaintiff would devolve on the plaintiff, 1/8th share would go to the widow and the rest would devolve upon the son‑‑‑Plaintiff would also inherit her Shari share out of the property left by the widow (her mother) and the rest of the property left by the widow would devolve upon the son (uterine brother of the plaintiff)‑‑‑Son had three widows and one daughter but no male issue, therefore, after the death of the son, half of the property would devolve upon his daughter, 1/8th would go to three widows and the remaining 3/8th would go to the plaintiff as uterine sister‑‑‑Where two Courts below had failed to appreciate the evidence produced by the plaintiff and the legal matter involved properly judgments and decrees passed by the Courts were set aside and the suit was decreed in favour of the plaintiff in revision.

Muhammad Ismail v. Maqbool Ahmad 2002 CLC 252: Ghulam Hussain and others v. Muhammad Hussain 1986 CLC 770: Mst. Ghafoor Jan through Legal Heirs v. Muhammad Anwar Khan through Legal Heirs and 15 others 2001 CLC 1332 and Saleem Akhtar v. Nisar Ahmad. PLD 2002 Lah. 385 ref.

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

‑‑‑‑S. 45‑‑‑Mutation of inheritance‑‑‑Adverse entry, assailing of‑‑­Limitation‑‑‑Dispute was with regard to Shari share in the property left by father and uterine brother of the plaintiff‑Uterine brother who was also co‑sharer in the property left by the father of the plaintiff was holding the same for and on behalf of all the co‑sharers‑‑‑Contention of the defendants was that the suit was time‑barred‑‑‑Validity‑‑‑Assailing of adverse entry in Revenue Record was not barred by limitation and could not amount to ouster of a co‑sharer in the property‑‑‑Brother, on the basis of such entry, could not legally claim adverse possession against his sister‑‑‑Suit was not time‑barred in circumstances.

Mst. Namdara and 3 others v. Sahibzada and others 1998 SCMR 996 ref.

(g) Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑‑Plea of Custom (Rewaj)‑‑‑Owner having no male issue‑‑­Right of distant uncle to inherit the property‑‑‑Owner of the property had three widows, one daughter and a uterine sister‑‑‑ Distant uncle claimed inheritance in the property on the basis of plea of custom (Rewaj)‑‑­Validity‑‑‑Distant uncle failed to prove that any Rewaj/customary law regarding inheritance of deceased Muslim prevailed in the area, judgments and decrees passed by the two Courts were maintained by High Court‑‑‑Suit filed by the distant uncle was rightly dismissed in circumstances.

Abdul Samad Khan for Petitioner.

Abdul Marian Akhunzad and Mian Iqbal Hussain for Respondent No

Date of hearing: 3rd April, 2002.

2002 C L C 1686

[Peshawar]

Before Malik Hamid Saeed and

Muhammad Qaim Jan, JJ

MUHAMMAD AKRAM KHAN

and another‑‑‑Petitioners

Versus

AWAL ZAMAN and 4 others‑‑‑‑Respondents

Writ Petition No.306 of 2002, decided on 23rd May, 2002.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constituticnal petition ‑‑‑Ejectment of tenant‑‑‑Title of landlord disputed‑‑‑Stay of ejectment proceedings‑‑‑Petitioner during pendency of ejectment proceedings, claimed to have become the owner of the premises on the basis of agreement to sell, therefore,‑Rent Controller imp-leaded her as necessary party to the proceedings‑‑‑Prior to the filing of ejectment application against the tenant, the petitioner had also filed suit for specific performance of agreement to sell against the landlord which suit was also pending in the same Court‑‑‑Petitioner sought stay of ejectment proceedings till the final disposal of suit for specific performance of agreement to sell‑Rent Controller declined to stay the proceedings‑‑‑Validity‑‑‑Present case was not a simple case of denial of relationship of landlord and tenant between the parties but the ownership itself was in dispute between the petitioner and the landlord in which the tenant had no concern except his t6nancy rights‑‑‑Both the claimants were having documentary proof‑‑‑Matter being serious, the petitioners were entitled to interim relief of stay of proceedings before the Rent Controller till decision of the civil suit‑‑‑High Court set aside order of the Rent Controller whereby he refused to stay proceedings in the rent case and ejectment proceedings before the Rent Controller were stayed.

Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 and Fazal Baqi and another v. Rehmatullah 1995 MLD 303 rel.

Mrs. Annetta Haroon v. Mst. Sughran Bibi and others 2000 SCMR 716 and Muhammad Daud v. Mst. Surriya Iqbal and another PLD 2000 Pesh. 54 distinguished.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art.199 ‑‑‑ Constitutional petition ‑‑‑Maintainability‑‑‑Inerlocutory order‑‑‑Refusal to stay ejectment proceedings till decision of suit for specific performance‑‑‑Assailing such order of Rent Controller before High Court in exercise of Constitutional petition‑‑‑Validity‑‑‑Rent Controller instead of staying proceedings in the case had decided to continue the same along-with the civil suit for specific performance and the order being interlocutory in nature could not be assailed in appeal‑‑‑Petitioners had no other remedy against the order of the Rent Controller except to file, the Constitutional petition‑‑­Constitutional petition was maintainable in circumstances.

Muhammad Latif Khan for Petitioners.

R.B. Khattak for Respondents.

2002 C L C 1692

[Peshawar]

Before Mrs. Khalida Rashid

and Ejaz Afzal Khan, JJ

MUHAMMAD NAIMATULLAH‑‑--‑Petitioner

Versus

N.W.F. PROVINCE through Chief Secretary

to Government of N.W.F.P., Peshawar

and 2 others‑‑‑Respondents

Writ Petition No.96 of 1999, decided on 24th May, 2002.

(a) North‑West Frontier Province Public Service Commission Ordinance (XI of 1978)‑‑‑

‑‑‑-S. 7‑‑‑Public Service Commission‑‑‑Recommendations‑‑‑Effect‑‑­Recommendations made by the Commission are advisory in nature and as such are not binding on the Governor who is required to inform the Commission if he does not agree with its advice.

Dr. Habibur Rehman v. West Pakistan Public Service Commissioner, Lahore and 4 others PLD 1973 SC 144 and Bahadur Shah, Division Engineer Development and others v. Pakistan through Secretary, Ministry of Communication and another 1988 SCMR 769 ref.

(b) North‑West Frontier Province Public Service Commission Ordinance (XI of 1978)‑‑‑

‑‑‑‑S. 7‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Public Service Commission‑‑‑Recommendations‑‑‑Vested right, accrual of‑‑‑Petitioner being a candidate for a post of Agriculture Economist, appeared before North‑West Frontier Province Public Service Commission‑‑‑Commission recommended the petitioner for the post but the Government abolished the post‑‑‑Contention of the petitioner was that after recommendation of the Commission, the post could not be abolished and the Government was bound to implement the recommendation of the Commission‑‑‑Petitioner further contended that a valuable right had accrued to him after the recommendation and the same could be enforced through High Court in exercise of its Constitutional jurisdiction‑‑­Validity‑‑‑Post was abolished by the Governor which he was well within his rights to do so under the North‑West Frontier Province, Public Service Commission Ordinance, 1978‑‑‑After abolishment of the post by the Governor, the recommendation of Service Commission could not be enforced through Constitutional jurisdiction of High Court‑‑‑No valuable right had accrued to the petitioner, as the recommendation remained inchoate and unenforceable for want of acceptance by the Government‑‑‑Constitutional petition was dismissed in circumstances.

Sher Zaman Kundi for Petitioner

Miss Musarrat Halali, Asstt. A.‑G. for Respondents

Date of hearing: 4th April, 2002.

2002 C L C 1701

[Peshawar]

Before Malik Hamid Saeed

and Ijaz‑ul‑Hassan Khan, JJ

AZIZ‑UR‑REHMAN‑‑‑Petitioner

Versus

Syed MUHAMMAD HASNAIN and 2 others‑‑‑Respondents

Writ Petition No.515 with Civil Miscellaneous Application No.732/M of 2002, decided on 5th July, 2002.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑‑S. 13(3)(a)‑‑‑Bona fide personal need of landlord for his son ‑‑‑Non­appearance of son in witness‑box‑‑‑Failure to disclose business in ejectment application‑‑‑Effect‑‑‑Mere fact that the son of landlord had not appeared in the witness‑box or the nature of business had not, been disclosed in ejectment application, could not be considered a good ground to dislodge claim of landlord.

Juma Sher v. Sabz Ali 1997 SCMR 1062 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑‑S. 13(3)(a)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑ Constitutional petition‑‑‑Bona fide personal need of landlord for his son‑‑‑Concurrent findings of fact by the Courts below‑ Ejectment application was filed by landlord on the ground that the shop in question was required by his son for business‑‑‑Son of landlord was jobless and the shop was required for his personal need which assertion had not been rebutted‑‑‑Rent Controller allowed the application and the eviction order was maintained by the Appellate Court‑‑‑Validity‑‑‑Statement of landlord regarding his bona fide use recorded on oath inspired confidence which could not be brushed aside if the same was found consistent with the application of ejectment which was not shaken or disproved in cross­-examination‑‑‑Question of personal requirement had been independently proved and issue regarding personal requirement was rightly decided in favour of landlord‑‑‑No misreading or non‑reading of evidence on the part of the Courts below had been shown‑‑‑Concurrent findings of fact could not be upset in exercise of power under Art.199 of the Constitution‑‑‑Constitutional, petition was dismissed in limine.

Juma Sher v. Sabz Ali 1997 SCMR 1062 ref.

Mazullah Barkandi for Petitioner.

2002 C L C 1704

[Peshawar]

Before Ijaz‑ul‑Hassan, J

Syed KAMAL SHAH‑‑‑Petitioner

Versus

INAYAT MUHAMMAD and others‑‑‑Respondents

Civil Revision No.269 of 2002, decided on 24th June, 2002.

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

‑‑‑‑S. 45‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.117 & 120‑‑‑Mutation of inheritance, assailing of‑‑­Limitation‑‑‑Ownership on the basis of possession‑‑‑Onus to prove‑‑­Disputed mutation of inheritance was attested in the year, 1919,‑ while the same was assailed in the year, 1996‑‑‑Trial Court dismissed the suit being time‑barred and the judgment was maintained by Appellate Court‑‑­Validity‑‑‑Onus to prove factum of possession and suit being within limitation, was heavily placed on the plaintiff but he had failed to discharge the same through reliable evidence‑‑‑Solitary word of the plaintiff did not rehabilitate his case‑‑‑Mere assertion of the plaintiff that attestation of suit mutation was a result of conspiracy between Revenue Officials and predecessor‑in‑interest of the defendants and that the plaintiff had been receiving usufructs, without a positive attempt on his part to substantiate the same, was of no consequence‑‑‑Both the Courts below had rightly found that the suit was clearly barred by time‑‑‑Both the Courts having properly dealt with the matter and dismissed the suit of the plaintiff for valid reasons‑‑‑High Court declined to interfere with the concurrent findings of fact by the Courts.

Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816 and Irshad Ali and another v. Munawar Khan 2001 CLC 1899 ref.

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

‑‑‑‑O. XX, R.5 & O.XLI, R.31‑‑‑Judgment‑‑‑Non‑compliance of provisions of O.XX, R.5 & O.XLI, R.31, C.P.C. makes judgment and decree nullity‑‑‑Validity‑‑‑Court of law whether at trial or in appeal is to give its finding on each and every issue and the Appellate Court has to .give points for determination and has to address all the important questions involved in the case but O.XX, R.5 & O.XLI, R.31, C.P.C. are directory and not mandatory‑‑‑Omission of such details as required under O.XX, R.5 or O.XLI, R.31, C.P.C. does not make the judgment and decree a nullity.

Muhammad Hafiz v. Jalaluddin and others 1981 SCMR 1171; Mian Muhammad Latif v. Province of West Pakistan PLD 1970 SC 180; Muhammad Akbar v. Fateh Muhammad 1993 MLD 76 and Zardad Khan v. Mst. Safia Begum 1998 CLC 2006 ref.

Peer Bakhsh Mehtab for Petitioner.

Nemo for Respondent.

Date of hearing: 24th June, 2002.

2002 C L C 1709

[Peshawar]

Before Nasirul Mulk, J

BAIDULLAH KHAN and others‑‑‑Petitioners

Versus

MUMTAZ KHAN and of‑‑‑Respondents

Civil Revision No.298 of 1995, decided on 5th July, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Joint ownership‑‑‑Electricity connection, proof of ownership‑‑‑Disputed Hujra was owned by predecessor‑in-­interest of the parties‑‑‑Plaintiffs claimed to be the joint owners of the disputed Hujra‑‑‑Defendants denied right of plaintiffs on the ground that the Hujra was exclusively owned by their deceased father‑‑‑Trial Court dismissed the suit but the Appellate Court allowed the appeal and found the plaintiffs to be the joint owners of Hujra‑‑‑Defendants, in proof of ownership of Hujra, produced two old judgments, in one judgment Hujra was mentioned after the name of grandfather of the defendant while in the other it was mentioned after the name of the father of defendants‑‑­Validity‑‑‑Matter of common knowledge was that Hujra owned by families jointly‑ were called after the name of the eldest male member‑‑­Grandfather of the defendants was the eldest son, whereas father of the defendants was also the eldest son‑‑‑Reference to Hujra in their names would not necessarily mean that it was exclusively owned by them‑‑­Same was the case of electricity meter in the name of the defendant‑‑­Appellate Court had not fallen into any error by holding that Hujra was owned by predecessor‑in‑interest of the parties, and therefore, all his successor‑in‑interest would be entitled to their Shari shares in it‑‑­Judgment and decree of the Appellate Court was upheld by High Court in circumstances.

Jalal Din and another v. Nawab and others AIR 1941 Lah. 55 and Allah Dad v. Government of Pakistan 1989 MLD 4037 ref.

Muhammad Sardar Khan for Petitioners.

Sheikh Wazir Muhammad and M. Riaz Khan for Respondents.

Date of hearing: 24th June, 2002

2002 C. L C 1910

[Peshawar]

Before Sardar Muhammad Raza Khan and Mrs. Khalida Rachid, JJ

PAKISTAN TOBACCO CO. LTD. ‑‑‑Petitioner

versus

N.‑W‑F.P. through Secretary Law, Government of N.‑W.F.P., Peshawar and 9 others‑‑‑Respondents

Writ Petitions Nos.653 to 655, 728, 1239, 1371, 1372 of 1996 and 1448 and 1449 of 1997, decided on 20th October, 1997.

(a) Legislation‑‑‑

‑‑‑‑"Colourable legislation"‑‑‑Connotation‑‑‑Legislation is sometimes patently wrong, manifest or direct but sometimes is disguised, indirect and covert‑‑‑Legislation when is disguised, indirect and cover the same is dubbed as colourable legislation.

(b) North‑West Frontier Province Finance Act (I of 1996)‑‑‑

‑‑‑‑S. 11‑‑‑North‑West Frontier Province Finance Act (III of 1997), S.11‑‑‑Constitution of Pakistan (1973), Arts.25, 199 & Fourth Sched., Entry 49‑‑‑Constitutional petition‑ ‑‑Reasonable classification‑‑‑Principle of intelligible differentia ‑‑‑Tobacco Development Cess‑‑‑Vires of S.11 of North‑West Frontier Province Finance Act, 1996, and S.11 of North-­West Frontier Province Finance Act, 1997‑‑‑Contention of the petitioner was that the Tobacco Development Cess was ultra vires the Fourth Sched., Entry 49 of the Constitution‑‑‑Validity‑‑‑No tax or cess would be levied under S.11 of North‑West Frontier Province Finance Act, 1996, and .S.11 of North‑West Frontier Province Finance Act, 1997, if the consignment did not leave the boundaries of the districts mentioned therein‑‑‑Entry 49 of Fourth Sched. of the Constitution having no concern with the sales and purchases, was not at all applicable‑‑‑Tobacco Development Cess/tax was levied on the movement of tobacco from certain districts and was not at all a tax on the sales and purchases‑‑‑Tax was imposed not on the sale or purchase of tobacco but it was a tax on the movement of tobacco‑‑‑Districts which had exit to the Province of Punjab were only classified in the statute‑‑‑As the classification was based keeping in view the movement of goods towards the Province of Punjab, therefore, the classification was reasonable as well as intelligible and was thus based on intelligible differentia ‑‑‑Tobacco Development Cess was a tax on the movement, of tobacco from the Province of North­West Frontier to the Province of Punjab‑‑‑Provisions of S.11 of North­West Frontier Province Finance Act, 1996 and S.11 of North‑West Frontier Province Finance Act, 1997 were not ultra vires the Constitution‑‑‑Constitutional petition was dismissed in circumstances.

K.C. Gajapati Narayan v. State of Orissa AIR 1953 SC 375; Haji Multan Zarin and others v. Government of N.‑W.F.P. PLD 1980 Pesh. 137 and Kohi Noor Industries v. Government of Pakistan 1989 MLD 1 ref.

(c) Interpretation of statutes‑‑‑

‑‑‑‑ Speeches made by Members of legislature on the Floor of Houses‑‑­Interpretative value‑‑‑Such speeches during debate over a bill are inadmissible for interpreting the specific statutory provision‑‑‑Principles of interpretation of statute allow the reference to such speeches only to remove some ambiguity just like preamble which is also some time referred in order to explain the intention of the Legislature‑‑‑Speech of a mover of the bill can be referred to ascertain the mischief sought to be remedied.

K.P. Varghese v. Income‑tax Officer AIR 1981 SC 1922 ref.

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

‑‑‑‑Art. 25‑‑‑Classification‑‑‑Unreasonable classification ‑‑‑Scope‑‑­Classification is unreasonable only when within the range of its selection the law operates unequally which cannot be justified on the basis of any valid classification‑‑‑Mischief of unreasonable classification applies where equals are treated differently without any reasonable basis‑‑‑Such principle is not applicable where equals and unequals are treated differently.

Government of Pakistan v. Zafar Iqbal 1992 CLC 219; Harman Singh and others v. Regional Transport Authority AIR 1954 SC 190; Western India Theatres Limited v. Cantonment Board, Pona AIR 1959 SC 582; Messrs East India Tobacco Co. v. State of Andhra Pradesh AIR 1962 SC 1733 and Mineral Development Limited v. State of Bihar AIR 1960 SC.468 ref.

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

‑‑‑‑Art. 25‑‑‑Reasonablc classification—Intelligible differentia‑‑‑Scope‑‑­If the classification is reasonable, it can be intelligibly differentiated and vice versa‑‑‑If there is equality and uniformity within each group founded on intelligible differentia having rational nexus with the object sought to be achieved by the law, it cannot be treated as discriminatory‑‑­Reasonable classification is permissible provided the same is based on intelligible differentia which distincts the persons or things that are grouped together from those who have, been left out and that differentia must have rational nexus with the object sought to be achieved by such classification‑‑‑Criteria for reasonable classification is to see as to whether the basis of differentia has any rational nexus with its avowed policy and object and that the classification is rational and based on intelligible differentia.

Ellahi Cotton Mills v. Federation of Pakistan PLD 1997 SC 582 and Kangshari Haldar v. State of Bengal AIR 1960 SC 457 ref.

(f) North‑West Frontier Province Finance .Act (I of 1996)‑‑‑

‑‑‑‑S. 11‑‑‑North‑West Frontier Province Finance Act (III of 1997), S.11‑‑Constitution of Pakistan (1973), Art. 151 & Fourth Sched., Entry 27‑‑‑Tobacco Development Cess-‑‑Imposition of the cess by Provincial Assembly on movement of tobacco from one Province to another‑‑‑­Contention of the petitioner was that the cess was violative of Entry No.27 of Fourth Sched. of the Constitution‑‑‑Validity‑‑‑Entry 27 of the Fourth Sched. of the Constitution deals with the imports and exports across the borders of Pakistan and it demarcates legislation for the Parliament concerning inter‑Provincial trade and commerce, meaning thereby, that the Parliament can legislate laws concerning trade and commerce between the Provinces‑‑‑Same has no reference to the imposition of taxes under entries in the Fourth Sched. starting from Entry 43 onwards‑‑‑Subject of taxation not appearing in Entry of Fourth Sched. of the Constitution, it does not debar the Provincial Assembly from imposition of taxes on Inter‑Provincial Trade, provided always that it is not violative of Art. 151 of the Constitution.

Sayphire Textile Mills Ltd. v. Government of Sindh PLD 1990 Kar. 402 distinguished.

(g) North‑West Frontier Province Finance Act (I of 1996)‑‑‑

‑‑‑‑S. 11‑‑‑North‑West Frontier Province Finance Act (III of 1997), S.11‑‑‑Constitution of Pakistan (1973), Art. 151‑Tobacco Development Cess‑‑‑Inter‑Provincial Trade‑‑‑Prohibition contained in Art. 15,43)(a) of' the Constitution‑‑‑ Applicability‑‑‑ Spirit and essence of Art.151 of the Constitution is that it aims at the object of free trade and commerce throughout Pakistan‑‑‑No impediment on tree trade can he placed except in the manner provided by Art.151(2) of the Constitution which gives powers to the Parliament to make laws accordingly‑‑‑Provincial Assembly or Provincial Government under Art. 151(3)(a), of the Constitution is bereft of powers of making law or taking any executive action, prohibiting or restricting the entry into or the export from the Province of goods of any class or description‑‑‑Provincial Assembly by enacting S.11 of‑ North‑West Frontier Province Finance Act, 1996, has in no way prohibited or restricted the movement of goods of one class or description, it has only imposed a cess or tax which is covered by Art.151(3)(a) of the Constitution‑‑‑Prohibition contained in Art. 151(3)(a) of the Constitution is not attracted in circumstances.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 151(3(b)‑‑‑Imposing of tax creating discrimination between goods manufactured or produced in Province and goods not manufactured or produced in Province‑‑‑Production of tobacco in North‑West Frontier Province and Province of Punjab‑ ‑‑Provincial Assembly or Government under Art.151(3)(b) of the Constitution is restrained from imposing tax which discriminates between goods manufactured or produced in a Province and the goods not so manufactured or produced .outside the Province‑‑‑Imposition of tax is also allowed when it does not discriminate between the goods manufactured or produced outside the Province and the goods manufactured or produced in any area in Pakistan‑‑‑If tobacco had not been produced in the Province of Punjab and had it only been produced in the Province of North‑West Frontier Province, the imposition of tax on the movement thereof from North‑West Frontier Province to Punjab would have certainly attracted the prohibition and would have been un‑Constitutional‑‑‑If the tobacco would have been exported to many other Provinces but imposition of tax restricted to one Province alone, the same would have discriminated between the two other provinces and was un‑Constitutional‑‑‑Tobacco is also produced' in the Province of Punjab, hence the prohibition contained in Art.151(3)(b) of the Constitution is not attracted‑‑‑Logic behind the legislation is that had the tobacco not been produced in Punjab, it would have been a restriction towards. freedom of trade throughout Pakistan‑‑‑Such imposition of tax does not cause discrimination alluded to and prohibited by Art. 151(3)(b) of the Constitution‑‑‑Imposition of tax. on movement of tobacco from North‑West Frontier Province to Punjab is not violative of Art. 151 of the Constitution.

Sayphire Textile Mills Ltd. v. Government of Sindh PLD 1990 Kar. 402 distinguished.

(i) North‑West Frontier Province Finance Act (I of 1996)‑‑‑

‑‑‑S. 11‑‑‑North‑West Frontier Province Finance Act (III of 1997), S.11‑‑‑Constitution of Pakistan (1973), Art. 151(4)‑‑‑Tobacco Development Cess, imposition of‑‑‑Not violative of the provisions of Art.151(4) of the Constitution‑‑‑Contention of the petitioner was that as the same was made without the consent of the President, therefore, it was violative. of the Constitution‑‑‑Validity‑‑‑Imposition of tobacco cess neither relates to public health, public order or morality nor the same is for the purpose of protecting animals or plants from disease nor it relates to the serious shortage of any essential commodity‑‑‑Conditions laid down in Art.151(4) of the Constitution are not attracted, therefore, the imposition of tobacco development cess is not violative of the provisions of Art. 151(4) of the Constitution.

(j) Legislation‑‑‑ .

‑‑‑‑Fiscal laws‑‑‑Fixation of rate of duties‑‑‑Delegation of power to the Executive‑‑‑Principles‑‑‑Quantification of tax is also prerogative of Legislature‑‑‑No such delegation can be made so as to give unlimited powers to Executive to enhance the rate of tax according to its own whims and desires‑‑‑Such delegation can only be done by fixing certain parameters and guidelines, as for example, by fixing the maximum rate of tax‑‑‑Any power by Legislature delegated to Executive regarding fixation of rate of tax without fixing parameters or without fixing maximum limit is, therefore, void.

(k) North‑West Frontier Province Finance Act (III of 1997)‑‑‑

‑‑‑‑S.11‑‑‑Tobacco Development cess‑‑‑Fixation of rate of, cess‑‑­Excessive delegation of power to the Executive‑‑‑No maximum limit is provided in S.11 of North‑West Frontier Province Act, 1997, for the Executive to know where to stop‑‑‑Such delegation of power is excessive by all means.

Muhammad Aslam v. Government of Punjab 1996 MLD 685; Devi Dad Gopal Krishnan v. The State of Punjab AIR 1967 SC 1895 and Shamungha Oil Mill's case AIR 1960 Mad. 160 rel.

M..Sardar Khan and Syed Zahid Hussain for Petitioners.

Talaat Qayyum Qureshi, Addl. A.‑G. and Jehanzeb Rahim for Respondents. .

Date of hearing: 20th October, 1997

2002 C L C 1925

[Peshawar]

Before Nasirul Mulk and Abdur. Rauf Khan Lughmani, JJ

NASRULLAH and another‑‑‑Petitioners

versus

Haji USMAN GHANI and 5 others‑‑‑Respondents

Writ Petition No. 1111 of 2001, heard on 19th June, 2002.

(a) North‑West Frontier Province Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑S. 14(j)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Qualification of candidates‑‑‑Election of Nazim and Naib­-Nazim‑‑‑Nomination papers of respondent (candidate for seat of Nazim) were objected to on the ground of being defaulter of a Bank and WAPDA‑‑‑Validity‑‑‑Use of words "adjudged" and "wilful" in S. 14(j) of the North‑West Frontier Province. Local Government Elections Ordinance, 2000 being significant, simple default of any tax or other financial dues owed to Federal, a Provincial or a Local Government or any financial institution including utility bills outstanding for six months or more was not enough‑‑‑Intention of Legislature was clearly to disqualify those defaulters, who had been adjudged as wilful defaulter by a competent judicial forum‑‑‑Respondent had never been adjudged wilful defaulter by a Court of competent jurisdiction‑‑‑Objection was overruled in circumstances.

Writ Petition No. 1601 of 2001; Black's Law ‑Dictionary, Fifth Edn; Oxford English Dictionary; Vol. I; Ikramullah Shahid v. District Returning Officer, Mardan and others Writ Petition No.293 of 2001 ref.

(b) North‑West Frontier Province Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑S.14(e)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Qualification of candidates‑‑‑Election of Nazim and Naib-Nazim‑‑Objection as to nomination paper of respondent (candidate for seat of Nazim) was that his name in Matriculation Certificate was recorded to be "Usman Khan.", while his name was “Usman Ghani"‑‑Validity‑‑‑Paternity of respondent had been rightly mentioned in certificate‑‑‑Matter of common knowledge that horn‑a time full name was not mentioned, but that would not make any difference‑‑‑Year of birth in identity card was also same as mentioned in such certificate‑‑‑Objection was overruled in circumstances.

(c) North‑West Frontier Province Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑S. 14(1)‑‑‑Probation of Offenders Ordinance (XLV of 1960), S.11(2)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Qualification of candidates‑‑‑Election of Nazim and Naib‑Nazim‑‑‑Objection as to nomination papers of respondent (candidate for seat of Naib‑Nazim) that he was convicted and sentenced to 3 years' R.I. with fine of Rs.1,000 under S.13 of Arms Ordinance, 1965; and that period of five years had not elapsed‑‑‑Validity‑‑‑Such conviction would not make any difference as Trial Court instead of sentencing had released respondent on probation‑‑‑Offender placed on probation by virtue of S.11(2) of Probation of Offenders Ordinance, 1960, would be deemed to be discharged for purposes of any law imposing any disqualification or disability upon him‑‑‑Such provision of law removed such disqualification and respondent could contest election.

(d) North‑West Frontier Province Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑S. 14(o)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Qualification of candidates‑‑‑Election of Nazim and Naib-­Nazim‑‑‑Objection as to nomination papers of respondent (candidate for seat of Nazim) that he was enlisted Government Contractor involved ire transaction with Local Government‑‑‑Validity‑‑‑Nothing on record was available to establish that respondent had transaction involving pecuniary interest in the Union Council, for which he had been elected as Nazim‑‑­If the respondent was involved in any other Union Council, that would not cause any disqualification‑‑‑Objection was overruled in circumstances.

(e) Words and phrases‑‑‑

‑‑‑‑"Adjudged"‑‑‑Meaning.

Black's Law Dictionary, Fifth Edn. and Oxford English Dictionary, Vo1.I ref.

(f) Words and phrases‑‑‑

‑‑‑‑"Wilful"‑‑‑Meaning.

Oxford English Dictionary, Vo1.I ref..

Abdul Mehboob for Petitioner.

Masood Kausar for Respondents Nos. l and 2.

Jehanzeb Rahim, A.‑G., N.‑W.F.P. for Respondents Nos. 5 and 6.

Date of hearing: 19th June, 2002.

2002 C L C 1934

[Peshawar]

Before Malik Hamid Sated, J

NAUSHAD KHAN‑‑‑Petitioner

versus

ROZI MUHAMMAD ‑‑‑Respondent

Civil Revision No.280 of 2000, decided on 26th July, 2002.

(a) Words and phrases‑‑‑

‑‑‑‑"Muavin"‑‑‑Meaning.

Urdu‑English Dictionary by Dr. S.W. Fallon published by Urdu-­Science Board, Lahore ref.

(b) Shari Nizam‑e‑Adl Regulation (I of 1999)‑‑‑

‑‑‑‑Paras. 6, 7, 9 & 11(6)(7)‑‑‑"Muavin‑e‑Qazi" and "Musleh"‑‑­Functions, duties and roll, in administration of justice‑‑‑Principles.

Job of Muavin‑e‑Qazi is to assist the Court in matters requiring the expounding and interpretation of the Injunctions of Islam relevant to the proceedings of a pending case, whereas the job of the Musleheen, if appointed by the court with the consent of the both the parties, is to resolve a dispute between the parties in accordance with Shaira'h by recording their opinion with reasons therefor and the Court can make such opinion of the Musleh or Musleheen to a case referred to for Sul'h a rule of the Court, if it is in accordance with Sharia'h.

Under Para 6 of the Shari Nizam‑e‑Adl Regulation, the "Muavin‑e‑Qazi" is to assist the Court for expounding, and interpreting the Injunctions of Islam relevant to the proceedings of a pending case.

According to para. 6 of Regulation, the "Muavin‑e‑Qazi" can assist the Court in every case, irrespective of the fact whether it referred to Mushleheen for Sul'h or is being tried by the Court itself, however, such assistance is subject to the discretion of the Qazi keeping in view the necessity arising in pending proceedings with regard to the interpretation of the Injunctions of Islam. When a matter is referred to Musleheen, they shall be assisted by the “Muavineen-e-Qazi” in advisory capacity in each case with respect to Sharia’h during the course of Sul’h.

Muavineen‑e‑Qazi cannot resolve a dispute between the parties by taking any proceedings towards its settlement nor can make or submit any opinion before the Court with regard to factual controversy nor the Court can make such an opinion as rule of the Court.

Para. 9 of the Regulation provides that a Qazi shall provide facility to a Muavin‑e‑Qazi called for assistance of the Court to hear evidence and arguments; and to peruse the record of the case and the Qazi shall, before decision of the case or proceedings, hear him on the legal points involved in the case or proceeding in the light of Sharia'h.

(c) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 5‑‑‑Shari Nizam‑e‑Adl Regulation (I of 1999), paras.6 & 7‑‑‑Suit for possession through pre‑emption ‑‑‑Offer of Illaqa Qazi to refer the case to Musleh was not accepted by the parties‑‑‑Case was later on referred to "Muavin‑e‑Qazi" with consent of the parties‑‑‑Defendant made application showing no confidence on "Muavin‑e‑Qazi" before submitting his award in Court ‑‑‑Illaqa Qazi accepted such application and recalled the order of reference ‑‑‑Zila Qazi accepted plaintiff's appeal and decreed the suit on the basis of award of "Muavin‑e‑Qazi" already filed in Trial Court‑‑‑Validity‑‑‑Job of Musleheen had been entrusted to "Muavineen‑e‑Qazi" and that too when both parties had shown their unwillingness to resolve the dispute through Musleh/Musleheen‑‑‑Illaqa Qazi had erred in law while referring the matter of Muavineen‑e‑Qazi for resolution ‑‑‑Illaqa Qazi had recalled the order of reference and cancelled the award of Muavineen‑e‑Qazi by making orders to proceed with matter on merits‑‑‑Zila Qazi had again committed the same error by not only relying on award of Muavineen‑e‑Qazi but also making the same as rule of the Court and granted decree to plaintiff in an. appeal filed against an interlocutory order of Illaqa Qazi‑‑‑Zila Qazi had thus not only acted in violation of relevant provisions of law, but had also exceeded his jurisdiction by straightaway decreeing the suit without any decision of Illaqa Qazi, thereby taking away the substantive right of appeal from defendant‑‑‑High Court accepted revision petition, set aside impugned judgment/decree and remanded the case to Illaqa Qazi for its decision on merits within specified time.

Maazullah Khan Barkandi for Petitioner.

Haji Muhammad Zahir for Respondent

Date of hearing: 2nd July, 2002.

2002 C L C 1940

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

MUHAMMAD ASLAM KHAN and 5 others‑‑‑Petitioners

versus

GHULAM FAIRD and 23 others‑‑‑Respondents

Review Petition No.113 of 2000 in Civil Revision No.34 of 1994, decided on 16th Apri1, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 114, O. III, R.4 & O.XLVII, R.1‑‑‑Legal Practitioners and Bar Councils Rules, 1976, R.166‑‑‑Review of judgment‑‑‑Counsel not engaged for outstation‑‑‑Revision petition was allowed by High Court ex parte against the petitioners as their counsel endorsed on the summons issued to him by High Court that he was not counsel to defend the case at principal seat at place "P"‑‑‑Review application was filed to set aside the judgment passed in revision petition against the present petitioners‑‑­Validity‑‑‑Counsel was supposed to appear and it was his duty to inform his client about the date of hearing of the petition‑‑‑Not a valid ground for non‑appearance of the counsel that he was engaged only to appear before Bench of High Court at place "D"‑‑‑Appointment of an Advocate continues till it is terminated by either side but of course with the leave of the Court under O.III, R.4(2), C.P.C.‑‑‑Proper course for the counsel was to have applied in writing seeking permission to withdraw from the case‑‑‑High Court declined to interfere with the judgment passed against the petitioner in exercise of Revisional jurisdiction‑‑‑Review petition was dismissed in circumstances.

Rehmatullah v. Abdullah and others NLR 1980 UC 347 ref.

Nemo for Petitioner

2002 C L C 1942

[Peshawar]

Before Sardar Muhammad Raza Khan, C. J. and Shah Jehan Khan, J

Messrs SWABI MARBLES (PVT.) LTD. and others‑‑‑Appellants

versus

A.C., LAND ACQUISITION COLLECTOR, MARDAN and others‑‑‑Respondents

Regular. First Appeals Nos.71 and 89 of 1997, decided on 13th March, 2001.

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 4, 11, 18, 23 & 54‑‑‑Acquisition of land‑‑‑Determination of amount of compensation‑‑‑Reference to Court‑‑‑Proprietors of two acquired factories feeling dissatisfied with rate of compensation as fixed by Land Acquisition Collector, filed objection petition under S.18 of Land Acquisition Act, 1894 which was referred to Civil Court‑‑‑Chief Executive of National Consulting Engineers, who was a qualified Civil Engineer; inspected the site of two acquired factories and prepared a sketch and after considering all the facts, had drawn total estimated cost of damage caused due to demolishing superstructure of said two factories‑‑‑Referee Court on the basis of report submitted by the Chief Executive, fixed value of superstructure of two factories and gave its judgment and decree accordingly‑‑‑Deposition of the Chief Executive had‑ not been shattered despite he was subjected to lengthy cross‑examination‑‑‑Judgment and decree of referee Court based on report of a qualified Civil Engineer, not suffering from any illegality, misreading or non‑reading of evidence could not be interfered with by High Court in exercise of its appellate jurisdiction.

WAPDA v. Aurangzeb Khan PLD 1975 Pesh. 1; Province of Punjab v. Naseeruddin 1991 SCMR 2091; Pir Khan v. Military Estate Officer P.LD 1987 SC 485; Military Estate officer v. Assistant Commissioner‑cum‑Collector, Quetta and 4 others .1997 CLC 556; Muhammad Pervez v. Azizullah Khan PLD 1999 Pesh. 53; Abdul Samad Khan and others v. Project Director, Mardan Development Authority 2001 CLC 33 ref.

Samiullah Jan for Appellants.

M. Pervaiz Younas and M. Alam for Respondents Nos. l and 2.

Date of hearing: 16th January, 2001.

2002 C L C 1956

[Peshawar]

Before Talaat Qayum Qureshi, J

Mst. FARHAT BEGUM and others‑‑‑Petitioners

versus

SAID AHMAD SHAH and others‑‑‑Respondents

Civil Revision Nb.129 of 1995, decided on lath July, 2002.

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

‑‑‑‑S.12 & 42‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Qanun‑e­Shahadat (10 of 1984), Arts. 117 & 120‑‑‑Oral sale‑‑‑Onus to prove‑‑­Non‑appearance of owner of property in witness‑box‑‑‑Evidence of the owner through attorney‑‑‑Plaintiff sought declaration of the suit property on the basis of oral sale made by the owner of the property in favour of the plaintiff and possession was also delivered to him‑‑‑Defendant denied the sale and produced his attorney in the Trial Court in his place‑‑­Validity‑‑‑Incumbent upon the owner of the property in such transaction to have appeared in person and denied not only that he had transacted any sale in favour of the plaintiff but should have also denied the receipt of sale consideration and factum of handing over of possession to the buyer, which was not done by him‑‑‑Attorney could not affirm or deny about the oral transaction which took place between the parties because he was not present at the time when the owner orally sold the land in dispute to the plaintiff‑‑‑High Court did not accept the reason for non‑.appearance of the owner of the property on account of his ailment. as no efforts were made to get the statement of the owner through Local Commission‑‑‑Oral sale was proved in circumstances.

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

‑‑‑‑Ss. 12 & 42‑‑‑Declaration to title of property‑‑‑Oral sale agreement‑‑­Plaintiff ‑asserted that the defendant had orally agreed to sell the suit property to the plaintiff, whole consideration amount was received by the defendant and possession of the property was also handed over to him‑‑­Plaintiff after having the possession, raised huge construction on the suit property‑‑‑Neither any objection was ever raised by the defendant nor the plaintiff paid any rent of the property‑‑‑Trial Court decreed the suit in favour of the plaintiff and he was declared to be the owner of the suit property‑‑‑Appellate Court modified the judgment and decree and reduced the area of the property to the extent of the area admitted by the plaintiff and he was declared as the owner to the extent of admitted area‑‑‑Validity‑‑‑No declaration could be granted on the basis of agreement because agreement did not by itself create any right or interest or any charge on the property‑‑‑Agreement having been proved, the plaintiff was entitled to decree for specific performance of agreement to sell‑Decree for specific performance was granted in circumstances.

Mukhtar Baig and others v. Sardar Baig and others 2000 SCMR 45 ref.

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

‑‑‑‑O. XX, R.12‑‑‑Mesne profits‑‑‑Recovery‑‑‑Plaintiff was owner of land measuring 50 Marlas and the defendant was in possession of the same on the basis of oral agreement to sell‑‑‑Plaintiff claimed mesne profits of the land measuring 50 Marlas‑‑‑Record proved that 30 Marlas of land was orally sold to the defendant and remaining 20 Marlas was in the ownership of the plaintiff ‑‑‑Effect‑‑­Plaintiff was entitled to recover mesne profits only 'to the extent of 20 Marlas in circumstances.

Qamar Zaman Tangi for Petitioners.

Abdul Sattar Khan for Respondents.

Date of hearing: 1st July, 2002.

2002 C L C 209

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Tariq Mahmood, J

Mst. RAZIA‑‑‑Petitioner

versus

ABDUL HAMEED and another‑‑‑Respondents

Constitutional Petition No.513 of 2000, decided on 4th September, 2001.

(a) Dissolution of Muslim Marriages Act (VIII of 1939)‑‑‑

‑‑‑‑S. 2(ii) & (viii)‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.14‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Suit for dissolution of marriage on grounds of cruelty and non‑maintenance‑‑‑Dismissal of suit‑‑‑Appeal, maintainability of‑‑‑Suit having been dismissed by the Family Court, appeal was filed before the District Judge‑‑‑Counsel for the appellant, during pendency of appeal withdrew the same under some misconception of law stating that no appeal was competent against the decision of dismissal of suit for dissolution of marriage and that order of dismissal of suit passed by the Family Court would be challenged in High Court in Constitutional petition‑‑‑Such action was certainly an act of negligence or carelessness of the counsel and the plaintiff was not at fault‑‑‑Appellate Court passed a mechanical order while returning the memorandum of appeal with the observation that appellant could approach a competent Court of law subject to all just exceptions‑‑‑ Validity‑‑‑Appellate Court should not have dealt with the application filed by counsel for withdrawal of appeal merely from point of speedy disposal of the appeal, but should have used its judicial mind ‑‑‑Heavy responsibility lay on the Courts in dealing with the matters of oppressed class, particularly in remote and backward areas where the litigants could not have proper legal assistance‑‑­Administration of justice was the ultimate responsibility of the Court and it had to deliver the same in even‑handed manners‑‑‑Role of the Court was not limited to pass a mechanical order on the application submitted by a party, even if such party chose to withdraw the appeal on the ground not legally available‑‑‑Court had powers to mould the relief and grant same, in the interest of justice, even if not asked‑‑‑Act of the Court should prejudice no man‑‑‑Order passed by the Appellate Court was declared to have been passed without lawful authority by the High Court in exercise of its Constitutional jurisdiction‑‑‑Appeal filed before the Appellate Court which was competent would be deemed to have been validly instituted to be decided after providing parties opportunity of hearing.

PLD 2001 Lah. 365 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Heavy responsibility lay on the Courts in dealing with the matters of oppressed class, particularly in remote and backward areas where the litigants could not have proper legal assistance‑‑‑Administration of justice was the ultimate responsibility of the Court and it had to deliver the same in even‑handed manner.

(c) Act of the Court‑‑‑

‑‑‑‑ Act of the Court should prejudice no man.

Mohsin Javed for Petitioner.

Shaukat Rakhshani for Respondent.

2002 C L C 220

[Quetta]

Before Fazal‑ur‑Rehman and Ahmed Khan Lashari, JJ

NOOR AHMED ‑‑‑Petitioner

versus

RETURNING OFFICER, UNION COUNCIL

ZANDARA, JUDICIAL MAGISTRATE, ZIARAT and 3 others‑‑‑Respondents

Constitutional Petition No.521 of 2001, decided on 20th August, ,2001.

(a) Baluchistan Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑S. 14(b)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Election for the post of "Nazim"‑‑‑Rejection of nomination papers‑‑‑Nomination papers filed by the candidate were rejected on the ground that the candidate was under age as per provisions contained under S.14(b) of Balochistan Local Government Elections Ordinance; 2000‑‑‑School Certificate showed that candidate at time of filing nomination papers was under age and other documents produced by the candidate in proof of his eligibility of age for candidature proved to be forged‑‑‑Medical Certificate which was subsequently obtained by the candidate also did not indicate exactly that he was above 25 years of age and said certificate was not supported by other documents regarding assessment of age of the candidate‑‑‑Candidate having failed to prove that at the time of filing nomination papers he was at least 25 years of prescribed age, his nomination papers were rightly rejected.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑High Court in exercise of its Constitutional jurisdiction would not act in aid of injustice and to perpetuate a wrong‑‑‑Constitutional jurisdiction being extraordinary in nature, was to be exercised to foster the ends of justice and to right a wrong.

PLD 2001 SC 415; 1988 SCMR 516; PLD 1975 SC 331; PLD 1968 Lah. 1334; PLR 1969 (1) W.P. 342; PLD 1968 Lah. 166; 1973 SCMR 127; PLD 1991 SC 691; 1990 CLC 1174; 1984 CLC 1729; PLD 1984 Quetta 158; 1973 SCMR 127; 1986 CLC 54; \ PLD 1989 SC 166; 1987 MLD 1098; 1990 MLD 2192 and 1990 CLC 954 ref.

Shakeel Ahmed for Petitioner.

D.A.‑G. and A.‑G. for the Official Respondents Nos.1, 2 and 4"

Syed Ayaz Zahoor for Respondent No.3.

Date of hearing: 6th August, 2001.

2002 C L C 413

[Quetta]

Before Amanullah Khan, J

Syed DAWOOD SHAH‑‑‑Petitioner

Versus

ADNAN KAMAL and another‑‑‑Respondents

Constitutional Petition Nos.277 and 304 of 2000, decided on 19th September, 2000.

(a) Prospectus of Bolan Medical College, Quetta for Academic Year 1998‑99‑‑‑

‑‑‑‑Paras. 31 & 38‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Educational institution‑‑‑Admission in First Year M.B.B.S. Class‑‑‑Selection Committee granted admission to respondent against reserved seat of District Zhob by ignoring the report of District Magistrate to the effect that respondent did not belong to the said District‑‑‑Validity‑‑‑Selection Committee had overruled the report of District Magistrate without giving any cogent or substantial reason‑‑­Selection Committee was bound to have enquired, whether respondent actually belonged to District Zhob or not, because it was the status of candidate, which had to be determined‑‑‑Record did not show that respondent was born in Zhob or had lived there, rather it showed that respondent alongwith his family had been living in District Liyah for the last many y6ars‑‑‑Respondent's father was carrying on business in District Liyah, where the names of his family members had been entered in electoral roll‑‑‑Mere owning some immovable property in a District would not make the respondent permanent resident thereof‑‑‑Selection Committee had failed to consider as to why respondent had passed his Matriculation and F.Sc. Examinations from Liyah, when facility of School and College was also available at Zhob‑‑­High Court accepted Constitutional petition and cancelled the admission granted to respondent holding that he did not belong to District Zhob.

Miss Sameia Zareen v. Selection Committee 1991 SCMR 2099 and Miss Salma Mughal v. Selection Committee 1993 SCMR 2082 ref.

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

‑‑‑‑S. 17‑‑‑‑"Domicile Certificate issued under the Pakistan Citizenship Act, 1951" and "Local Domicile Certificate issued by District Magistrate" ‑‑‑Distinction between the two‑‑‑Local Domicile Certificate was more or less equivalent to Permanent Residence Certificate of a particular District.

Domicile Certificate issued under the Pakistan Citizenship Act, 1951 is not at par with the one issued from a particular District. The former is issued under a specific law, regarding intention on oath for permanently setting in Pakistan by the holder 'and by abandoning the domicile of origin from another country. The latter contemplates permanent residence in a particular District. Such‑like certificate is not issued under any statutory law, but is issued by the District Magistrate, in exercise of Administrative Authority. The purpose of issuance of such Local/Domicile Certificates is to get admission in any of the Educational Institutions. The issuance of such Certificate vests right in the holder of such Certificate to apply against the reserved seats of the District from where the said certificate is issued. The allocation of such certificate is to compensate the students, who belong to under‑developed areas; to bring them at par with the students of developed areas and the cancellation of the Local/Domicile Certificate, would not amount to cancellation of the Citizenship of the country‑‑‑Domicile Certificate issued was more or less equivalent to Permanent Residence Certificate of a particular District.

Shakeel Ahmed for Petitioner.

S.A. Zahoor for Respondents Nos.1 and 2.

Ashraf Khan Tanoli, A.‑G. for Respondent No.3.

Respondent No.4 in Person.

Date of hearing: 29th August; 2000.

2002 C L C 730

[Supreme Court (AJ&K)]

Present: Muhammad Younas Surakhvi, J

MUSHTAQ HUSSAIN KHAN---Petitioner

Versus

Mst. HAFEEZA AZIZ and 3 others----Respondents

Civil Petition for Leave to Appeal No.112 of 2001, decided on 15th August, 2001.

(On appeal from the judgment of Shariat Court, dated 18-5-2001 in Criminal Appeal No.8 of 2000).

(a) Azad Jammu and Kashmir Family Courts Act, 1993---

---S. 14(5)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Appeal to Supreme Court from judgment, decree or order of Shariat Court---Condition precedent---Appeal to Supreme Court from judgment, decree or order of Shariat Court would be only if Supreme Court was satisfied that case involved a substantial question of law of public importance---Question of law of public importance was that which affected and had its repercussion on public at large---Contention that judgments of Supreme Court which were precedents for other Courts, were of public importance, was repelled, because if said contention was accepted then all cases decided by Supreme Court were of public importance as they were precedents for other Courts---Matrimonial dispute between two parties could hardly be called a question of law of public importance.

(b) Words and phrases---

--Term "question of law of public importance"---Meaning and scope--- question of law of public importance is only That question which affects and has its repercussions on the public at large.

Imdad Ali Mallick, Advocate for Petitioner.

Date of hearing: 15th August, 2001.

2002 C L C 739

[Supreme Court (AJ&K)]

Present: Muhammad Younas Surakhvi and Khawaja Muhammad Saeed, JJ

MUHAMMAD YOUSAF KHAN‑‑‑Appellant

Versus

BOARD OF REVENUE and 12 others‑‑‑Respondents

Civil Appeal No.57 of 2001, decided on 31st July, 2001.

(On appeal from the judgment of the High Court, dated 1‑3‑2001 in Writ Petition No‑282 of 1996).

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

‑‑‑‑S. 141‑‑‑Question of title in respect of property to be divided‑‑­Determination‑‑‑Where question of title would arise in property to be partitioned, Revenue Officer could himself determine question of title or refer matter to Civil Court for its determination.

Ahmed Khan and 2 others v. Member, Board of Revenue, N.W.F.P., Peshawar and others PLD 1986 Pesh. 67; Ali Haider Khan v. Muhammad Aziz Khan and others 1993 SCR 170; Ali Haider Khan v. Sher Afzal Khan and others PLD 1983 SC (AJK) 5; Sadiq Khan and others v. Rehabilitation Department and others 1992 SCR 132; Khair Din v. I. U. Khan, C. S. P., Member, Board of Revenue, West Pakistan and others PLD 1968 Lah. 11 and Pakistan Electrical and Mechanical Insurance Ltd. v. Chairman, Industrial Relations Commission and another PLJ 1981 Kar. 420 ref.

(b) Adverse possession‑‑‑

‑‑‑‑ If a co‑sharer in possession could prove his open and adverse possession for a period of more than 12 years to the total ouster of other co‑sharers, his possession, would be deemed to be adverse against other co‑sharers.

Ali Haider Khan v. Muhammad Aziz Khan and others 1993 SCR 170 ref.

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

‑‑‑‑Ss. 7 & 161‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art.42‑‑‑Appellate jurisdiction of Supreme Court‑‑‑Extra­--Assistant Commissioner, Collector as well as Member, Board of Revenue having not attended to crucial points involved in the case and to the objections raised in proceedings and the case suffering from misreading d non‑reading of objections, concurrent findings of Revenue Authorities were set aside by Supreme Court in appeal.

(d) West Pakistan Land Revenue Act (XVII of 1967)‑‑-

‑‑‑‑S. 164‑‑‑Revisional jurisdiction, exercise of‑‑‑Wide powers had been given under S.164 of West Pakistan Land Revenue Act, 1967 to Board of Revenue for exercising its revisional jurisdiction.

Ahmed Khan and 2 others v. Member, Board of Revenue, N.‑W: F. P. , Peshawar and others PLD 1986 Pesh. 67 ref.

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

"S. 135‑‑‑Partition of property‑‑‑Basic principle‑‑‑Mode and procedure‑‑‑Every co‑sharer would be deemed to be owner of every part and parcel of land unless same was regularly partitioned‑‑‑Question as to whether by mutual arrangement, parties had already partitioned their land or not should also have been attended to by the Revenue Authorities.

Syed Muhammad Siddique Shah Bukhari, Advocate for Appellant.

M. Tabassum Aftab Alvi, Advocate for Respondents.

Date of hearing: 10th July, 2001.

2002 C L C 749

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

MUHAMMAD RASHID KHAN‑‑‑Appellant

Versus

NOOR MUHAMMAD KHAN and 2 others‑‑‑Respondents

Civil Appeal No.27 of 2001, decided on 9th July, 2001.

(On appeal from the judgment and decree of the High Court, dated 30‑10‑2000 in Civil Appeal No.34 of 1999).

(a) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.)‑ ‑

‑‑‑‑S. 14‑‑‑Civil Procedure Code (V of 1908), O.XIII, R.1‑‑‑Suit for pre-emption‑‑‑Non‑exhibiting of document which otherwise was admissible in evidence‑‑‑Copies of documents showing that plaintiff was co‑sharer in suit‑land were appended by plaintiff with plaint and defendant was fully aware of said documents ,placed on record by plaintiff‑‑‑Attested copies of said documents having been admitted and read into evidence by Trial Court and Appellate Court without any objection, same could not be excluded from evidence merely because same were not exhibited ‑‑‑Non-exhibiting of a document which was otherwise admissible in evidence, was merely an irregularity and would not render such a document as inadmissible in evidence‑‑‑Observations of High Court regarding inadmissibility of documents produced by plaintiffs along with plaint, were set aside by the Supreme Court.

Tariq Mehmood v. Muhammad Asghar 1990 CLC 1214; Natha Khan v. Mst. Rehmat Bibi PLD 1960 Lah. 96; Muhammad Ashraf v. Syed Ghulam Murtaza and others NLR 1992 CU 707 and Abdul Karim v. Muhammad Sughram and others Civil Appeal No.185 of 2000 ref.

(b) Question of fact‑‑‑

‑‑‑‑Proof‑‑‑Substantial question of fact which would go to the root of the case and stood admitted by opposite party, needs not be proved.

Ch. Abdul Karim and others v. Raja Muhammad Nisar and another 1998 SCR 296 ref.

(c) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.)‑‑

‑‑‑‑S. 14‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Suit for pre‑emption ‑‑‑Raising the point for the first time before Supreme Court‑‑‑Admissibility‑‑‑Contention raised by defendants/ appellants that it was enjoined upon plaintiffs/respondents to prove their right of prior purchase at three stages; at time of sale; at time of institution of suit and at time of passing of decree by Trial Court, could not be considered because such contention was never raised in any of Courts below nor before the High Court‑‑‑Effect‑‑‑Point which was not pressed before High Court, could not be allowed to be raised before Supreme Court.

(d) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.)‑‑‑

‑‑‑‑Ss. 6 & 14‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Suit for pre‑emption ‑‑‑Appellate jurisdiction of Supreme Court‑‑‑Scope‑‑‑All Courts below including the High Court had concurrently decided that plaintiffs had proved their plea of being co-­sharer with vendors and had preferential right of pre‑emption as compared with vendee ‑‑‑Judgments and decrees rightly passed in favour of plaintiffs by Courts below as well as High Court could not be interfered with in appeal before Supreme Court.

Imdad Ali Mallick, Advocate for Appellant.

Ashfaque Hussain Kiani, Advocate for Respondents.

Date of hearing: 6th July, 2001.

2002 C L C 913

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

BAQA MUHAMMAD KHAN ‑‑‑Appellant

versus

CUSTODIAN OF EVACUEE PROPERTY and 8 others‑‑‑Respondents

Civil Appeal 1o.186 of 2000, decided on 7th June, 2001.

(a) Pakistan (Administration of Evacuee Property) Act (XII of 1957)‑‑‑

‑‑‑‑S. 18‑B‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44‑‑‑Allotment of land‑‑‑Writ jurisdiction, exercise of‑‑­Custodian who had exclusive jurisdiction in the matter, after taking into consideration all documentary evidence produced on record, had found that petitioner had failed to prove that original allottee of land in dispute had ever surrendered land in dispute in his favour as claimed by him‑‑­Orders passed by Custodian in exercise of jurisdiction available to him under law were assailed by petitioner before High Court through writ petition, which was dismissed by High Court‑‑‑Whether original allottee of land had surrendered land in favour of petitioner was disputed question of fact and decision of Custodian on said question of fact was not amenable to writ jurisdiction of High Court because High Court, while exercising writ jurisdiction, could not assume role of a Court of appeal‑­[n absence of any misreading or non‑reading of evidence by Custodian. High Court rightly rejected writ petition against judgment of Custodian‑‑­Relief in writ petition being discretionary in nature would be granted in the light of circumstances of each case.

Azmatullah and another v. Ali Bahadur and another 1996 CLC 25d; Muhammad Naseer Jahangiri v. Abdus Sami Khan 1997 PLC (C.S.) 1115 and Sardar Muhammad Hanif Khan v. Raja Altaf Hussain Khan Rathore 2000 YLR 2386 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑Ss. 42 & 44‑‑‑Appellate jurisdiction of Supreme Court‑‑‑Scope‑‑‑Writ petition in which question of fact was challenged was dismissed by High Court ‑‑‑Supreme Court could not interfere when High Court had exercised its discretion on sound principles‑‑‑Supreme Court could interfere only when decision given by Tribunal of exclusive jurisdiction or High Court was patently erroneous or was based on no evidence.

Muhammad Siddique Shah Bukhari, Advocate for Appellant.

Ashfaque Hussain Kayani and Farooq Hussain Kashmiri, Advocate for Respondents.

Date of hearing: 15th May, 2001.

2002 C L C 1117

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Manzoor Hussain Gillani, J

MUHAMMAD ASHRAF and 6 others---Appellants

versus

ALAM DIN and 6 others---Respondents

Civil Appeal No.76 of 1997, decided on 27th March, 2000.

(On appeal from the judgment and decree of the High Court dated 19-9-1997 in Civil Appeal No.42 of 1995).

Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.)---

----Ss. 6 & 14---Civil Procedure Code (V of 1908), O.XXII, R.2---Suit for pre-emption ---Abatement of suit---Doctrine of partial pre-emption---Suit filed against two vendee having been dismissed by Trial Court, pre­emptors filed appeal against judgment of Trial Court---One of the vendees died during the pendency of appeal but legal representatives of deceased vendee were not brought on record within the period of limitation---Appellate Court after taking necessary proceedings in the matter found that appeal had abated---Pre-emptors who failed to implead legal representatives of the deceased vendee had contended that they consumed 41 days in finding out the addresses of legal representatives of the deceased, but the contention was not tenable ---Effect---Pre­emptors having been proved to be negligent in impleading legal representatives of deceased vendees, appeal was rightly found to have abated---Contention that suit would abate only to extent of share of deceased vendee was repelled because in that eventuality suit would be hit by doctrine of partial pre-emption which was not permissible in pre­emption cases.

Muhammad Aslam v. Custodian 1994 SCR 318; Tota Rarn v Kundan AIR 1 Lah. 784 nd h lath adir v. Ditta AIR 1946 Lah. 184 ref.

Ch. Muhammad Anwar, Advocate for Appellants.

Raja Hassan Akhtar, Advocate for Respondents.

Date of hearings 24th March, 2000.

2002 C L C 1121

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

MUHAMMAD AFZAL---Appellant

versus

ALI AKBER and 8 others---Respondents

Civil Appeal No. 116 of 2000, decided on 19th October, 2001.

(On appeal from the judgment and decree of High Court, dated 4-5-2000 in Civil Appeal No.38 of 1999).

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

----S. 42---Azad Jammu and Kashmir Alienation of Lands, Act, 1995 (B.K.), S.5---Suit for declaration---Restriction on transfer or alienation of more than 1/4th of total land---Plaintiff had claimed that he was owner of suit-land on the basis of mortgage deeds which as a matter of fact were sale-deeds, but were executed as mortgage deeds in view of law prohibiting sale for more than 1/4th of total estate and in proof of his claim plaintiff had relied on S-5 of Azad Jammu and Kashmir Alienation of Lands Act, 1995 (B.K.)---Provision of S.5 of the Act had not provided that alienation of more than 1/4th of land was prohibited in State of Jammu and Kashmir---Claim of plaintiff was rejected.

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

----S. 42---Transfer of Property Act (IV of 1882), S.58---Suit for declaration---Treating mortgaged deed as sale-deed---Plaintiff had claimed that mortgage deeds in respect of suit-land as a matter of fact were sale-deeds, but were executed as mortgage deeds in view of law prohibiting sale for more than 1/4th of total estate---Plea of plaintiff was rejected, in view of fact that conditions incorporated in mortgage deeds would not change their basic character.

Mir Matiullah and others v. Ch.. Ahmed Misri an of ors Civil Appeal No. 185 of 1998; Abdul Rehman and another v, Alif Din and others Civil Appeal No. 144 of 1998 and Maulvi Abdul Saboor v. Said Mir and 9 others PLD 1983 SC (AJ&K) 63 ref.

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

----Arts. 102 & 103---Proof of terms of disposition of property---No evidence could be given in proof of terms of disposition of property except document itself or secondary evidence of its contents in cases in which secondary evidence was admissible under Arts. 102 & 103, Qanun­-e-Shahadat, 1984---Basic requirement of law was to see terms incorporated in document.

(d) Transfer of Property Act (IV of 1882)---

----Ss. 122 & 123---Specific Relief Act (I of 1877), S.42---Suit for declaration---Gift---Suit-land being mortgaged, constructive possession was sufficient for satisfaction of necessary conditions required for a valid gift---Donor and donee also being owners in same Khewat, mortgagee had no legal right to challenge the gift deed---Contention that gift deed was not complete as possession was not delivered to the donee, was repelled because taking possession of subject-matter of gift by donee either actually or constructively would complete the gift.

Talib Hussain v. Babu Muhammad Shaft and 2 others PLD 1987 Lah. 4 ref.

(e) Transfer of Property Act (IV of 1882)---

----S. 63-A---Specific Relief Act (I of 1877), S.42---Suit for declaration---Improvement made in mortgaged property---Costs of improvements were to be awarded to a particular party which made improvements in good faith---Plaintiff, in the present case, on basis of mortgage deeds had asserted his title by .alleging that mortgage deeds in fact were sale-deeds and as such he could be declared to be owner of land mortgaged to him---Plaintiff, in circumstances, was not entitled to claim any costs for improvements on suit-land.

Fazal Haque and others v. M.D. Afan and another PLD 1971 Dacca 158; Maulvi Abdul Saboor v. Said Mir and 9 others PLD 1983 SC (AJ&K) 63; State Bank of Pakistan v. Khaledar M.A. and others PLD 1963 Dacca 844; Mir Matiullah and others v. Ch. Ahmed Misri and others Civil Appeal No. 185 of 1998 and Abdul Rahman and another v. Alif Din and others Civil Appeal No. 144 of 1998 ref.

Raja Muhammad Hanif Khan. Advocate for Appellant.

Ghulam Mustafa Mughal, Advocate for Respondents Nos. l, 2 and 7 to 9.

Date of hearing: 17th October, 2001.

2001 C L C 1130

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J., Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ.

Ch. MUHAMMAD YOUSAF---Appellant

versus

THE STATE and 4 others---Respondents

Civil Appeals Nos.50 and 52 of 2001, decided on 2nd August, 2001.

(On appeals from the judgment of the High Court, dated 30-5-2001 and 31-5-2001 in Writ Petitions Nos.332, 336, 77, 345 and 358 of 2001).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Ss. 4 & 44---Violation of Fundamental Rights---Writ jurisdiction, exercise of---Threatened violation of a Fundamental Right would also give a right to avail writ jurisdiction of High Court.

(b) Interpretation of statutes---

---- Where meanings of a word or term used in a statute were clear and unambiguous, Court could not go beyond such meanings and had to take them in their ordinary dictionary meanings.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 24---Qualifications and disqualifications of Members of Assembly---Power to provide disqualification under sub-clause (f) of subsection (2) of S.24 of Azad Jammu and Kashmir Interim Constitution Act, 1974, could be exercised by enacting law---Under Scheme of Azad Jammu and Kashmir Interim Constitution Act, 1974, law could be enacted either by Assembly or when it was not in session through promulgation of an Ordinance by President, if he was satisfied that circumstances existed which rendered it necessary to take immediate action in that behalf---"Qualifications" and "disqualifications" provided in S.24 of Azad Jammu and Kashmir Interim Constitution Act, 1974 by enacting law under authority of sub-clause (f) of subsection (2) of S.24 of the Constitution were two shades of the same picture and were so interchained to each other that both of them must be read together and not in isolation of each other---Person who fulfilled requirement of "qualifications" laid down under S.24(1) of the Constitution and also did not suffer from any of "disqualifications" laid down under the Constitution and the law enacted in exercise of powers under S.24(2)(f) of the Constitution, could contest election for legislative body of Azad Jammu and Kashmir.

Jammu and Kashmir Tehrik-e-Ammal Party v. The Azad State of Jammu and Kashmir PLD 1985 (Azad J&K) 95; Mian Shahbaz Sharif v. Chaudhry Muhammad Altaf Hussain PLD 1995 Lah. 541; Messrs S.A. Haroon and others v. The Collector of Custom, Karachi and another PLD 1959 SC (Pak.) 177; The Working Muslim Mission and Literary Trust, Lahore and another v. The Crown PLD 1956 FC 209; S.M. Ayub v. Syed Yusaf Shah PLD 1967 SC 486; Mian Shahbaz Sharif v. Muhammad Tariq Khan v. T]te State and another PLD' 1998 SC (AJ&K) 17, Raja Muhammad Niaz Khan v. Azad Government PLD 1988 SC (AJ&K) 53; Pir Sabir Shah v. Shad Muhammad .Khan PLD 1995 SC 66; Fauji Foundation and another v. Shamim-ur-Rehman PLD 1983 SC 457; Government of Pakistan v. Akhlaque Hussain PLD 1965 SC 527; Pir Shujaat Hussain Qureshi v. Alhaj Raees Ahmad Qureshi PLD 1988 SC 118; Muhammad Yousaf v. M. Irshad Sipra and others 1988 CLC 2475; The State of Bihar v. Reghunandan Singh and another AIR 1960 Pat. 530; Dr. Muhammad Akram v. Allotment Committee, Mirpur Development Authority PLD 1985 SC (AJ&K) 113 and Azad Government v. Genuine Rights Commission 1999 MLD 268 ref.

(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 4---Fundamental Right---Freedom of association---Every State subject had been given right to form an association of his choice---Such association would continue unless its activities were curtailed through reasonable restriction imposed by law in the interest of morality and public order---Contention that right to form an association would automatically, confer a right to contest elections for Legislative Assembly was repelled, Chief Secretary/Referring Authority, Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC (AJ&K) 95 ref.

(e) Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970---

----S. 5(2) & Chap. XXV---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.4---Fundamental Right 7---Right to contest election ---Qualification---Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970 allowed entry only of such persons in Legislative body who were either Matriculate or had equivalent qualification ---Such restriction would not come within mischief of Fundamental Right No.7.

(f) Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970---

----S. 5(2), cl.(xxv)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.4---Fundamental Rights, 7, 15 & 5.41---Right to participate in election had been made available to State subjects by a statute and not under any Fundamental Right conferred by Constitution--?Constitution had authorized Legislative Assembly to enact law relating to election of Legislative Assembly---Legislative powers could be exercised either by Assembly or under S.41 of Constitution by President ---Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970 promulgated by President had same force and effect as an Act of Assembly---President in the present case having competently promulgated Election Ordinance, 1970, it could not 'be said that same lacked legal competence---Contention that Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970 was opposed to F.Rrs.7 & 15 was repelled.

Raja Muhammad Niaz Khan, Ex-Chairman, Azad Jammu and Kashmir Mineral and Industrial Development Corporation v. Azad Government of the State of Jammu and Kashmir, Muzaffarabad PLD 1988 SC (AJ&K) 53 ref.

(g) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Ss. 4, 24 & 31---Law-making process---Scope---No law could be made against provisions of Azad Jammu and Kashmir Interim Constitution Act, 1974 and if any law was unreasonable and it offended against any of the Fundamental Rights same could be struck down.

(h) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Ss. 31 & 41---Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970, S.5(2) & Ch.XXV---Enactment of law--?Attributions of malice to Legislature---Malice could not be attributed to Legislature without any strong proof--Law could be enacted either by Assembly or by President in exercise of power available to hint under S.41 of the Constitution Act, 1974---Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970 promulgated by President had same force and effect as that of Act of Assembly---Presumption that law was made with bona fide reasons, would apply to such law which was enforced by the President through an Ordinance---Argument that Ordinance, 1970 had been enacted only with mala fide intention, could not be entertained in absence of any evidence in support of such allegations.

Raja Muhammad Niaz Khan, Ex-Chairman, Azad Jammu and Kashmir Mineral and Industrial Development Corporation v. Azad Government of the State of- Jammu and Kashmir, Muzaffarabad PLD 1988 SC (AJ&K) 53; K. Vecrabhadrayya's case AIR 1950 Mad. 243 and Fauji Foundation and another v. Shamim-ur-Rehman PLD 1983 SC 457 ref.

(i) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Ss. 22 (1)(c). & 24---Election of Legislative Assembly---Qualifications and Disqualifications of Members of Assembly---Qualification provided under S.22(1)(c) of the Constitution for an Aalam-e-Din and condition of being a Matriculate or having equivalent qualifications for contesting election to Legislative Assembly as incorporated in list of disqualification, could co-exist in one person.

Abdul Majeed Mallick, Advocate assisted by Mirza Mohammad Nisar, Advocate for Appellants (in both the Appeals).

Khawaja Attaullah, Additional Advocate-General for Respondents Nos. l and 2 (in Civil Appeal No.50 of 2000).

M. Tab assum Aftab Alvi, Advocate for Respondents Nos. 1 and 2 (in Civil Appeal No.51 of 2001).

Date of hearing: 6th June, 2001.

2002 C L C 1150

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

IBARAT HUSSAIN and another‑‑‑Appellants

versus

MIR AFZAL KHAN and 12 others‑‑‑Respondents

Civil Appeal No. 58 of 2001, decided on 11th October, 2001.

(On appeal from the judgment and decree of High Court, dated 18‑10‑2000 in Civil Appeal No.36 of 1998).

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

‑‑‑‑0. XLI, R.1‑‑‑Form of appeal‑‑‑Appeal before High Court ‑‑‑Non­filing of attested copy of judgment of Appellate Court below‑‑‑Appeal was dismissed by High Court on ground that attested copy of judgment of Appellate Court below was not filed by appellant alongwith memorandum of appeal‑‑‑Validity‑‑‑Requirement of law was that memorandum of appeal before High Court was to be accompanied by a certified copy of judgment and decree appealed from and the certified copy of judgment of Trial Court‑‑‑Appellant though did not file certified copy of judgment appealed from, but had filed attested copies of decree of Appellate Court below and of judgment of Trial Court‑‑‑Reader of High Court on the day of filing appeal, wrote note that appeal was within limitation and it was complete in every respect and on the same day Deputy Registrar issued process to respondent and called for record‑‑‑On the day appeal was admitted for regular hearing period for limitation was still subsisting and had the office pointed out the defect to appellants that appeal was not accompanied by judgment appealed from, appellants would have provided the same‑‑‑Appeal having been admitted without any objection, it would be deemed that copy of judgment appealed from was dispensed with by High Court while admitting appeal for regular hearing‑‑‑High Court, in circumstances, was not justified to dismiss appeal‑‑‑Judgment and decree of High Court were set aside.

Muhammad Amin Shah v. Mehtab Din and another 1995 SCR 390; Azad Government and others v. Syed Sajjad Ali Gillani and another 2001 SCR 134; Swar Khan and 2 others v. Noor Main and another 1985 CLC 1082; Ali Haider Shah v. Ghulam Muhammad 1981 CLC 359: Ajaib Hussain and another v. Mst. Zareen Akhter and 11 others 1999 YLR 1426; Province of Punjab and others v. Zahoorul Hassan Farooqi 1991 CLC 1288; Azad Government and others v. Syed Sajjad Ali Gilani and another 2001 CLC 1105; Muhammad Amin Shah v. Mehtab Din and another 1995 SCR 390 and Swar Khan and 2 others v. Noor Alam and another 1985 CLC 1082 ref.

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

‑‑‑‑O. XLI, R. 1‑‑‑Form of appeal‑‑‑Discretion of High Court‑‑­-Discretion was vested in Court to dispense with copy of judgment of Trial Court or judgment appealed from in appropriate case and condone delay in filing appeal.

Raja Muhammad Yunus Tahir and Abdul Hamid Khan Shahid, Advocate for Appellants.

Sardar Muhammad Arif Khan Abbasi, Advocate for Respondents.

Date of hearing: 9th October, 2001.

2002 C L C 1155

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ. and Muhammad Yunus Surakhvi, J

Mst. FARIDA BIBI ‑‑‑ Appellant

versus

SABIR HUSSAIN and 6 others‑‑‑Respondents

Civil Appeal No. 131 of 2001, decided on 4th December, 2001.

(On appeal from the judgment of the High Court, dated 8‑6‑2001 in Civil Revision No. 115 of 2000).

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & 54‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Suit for declaration and perpetual injunction‑‑­Advocate of the defendants, during pendency of the suit, made certain admission on behalf of defendants‑‑‑One of the defendants who was a Pardanashin illiterate married lady filed application for cancellation of alleged collusive, forged and fake admission contending that she had never engaged or executed any power of attorney in favour of any Advocate nor she was ever served in the case, but Trial Court dismissed her application without appreciating evidence in true perspective and revision filed against order of Trial Court was also dismissed by the High Court‑‑‑Plaintiff's case was not that when defendant affixed her thumb-­impression on alleged power of attorney, its contents were read over to her and she was made aware of the fact that on the basis of her thumb­-impression on power of attorney her rights in property could be given up or compromised with the plaintiff‑‑‑Defendant admittedly being a Pardanashin illiterate lady, it was enjoined upon plaintiff to prove that contents of documents adversely affecting her interest were duly read over to her and she was made to understand consequence of the same‑‑­Trial Court as well as High Court having misread the evidence brought on record and also having framed issues in violation of law and pleadings of the parties, judgment of High Court was patently illegal which was set aside in appeal by Supreme Court and case was remanded to be decided afresh after framing issues and affording opportunity to parties to lead evidence and to proceed with the case according to law.

Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642 and Baggu v. Mst. Rehman Bibi 1996 MLD 377 ref.

Ashfaque Hussain Kiani, Advocate for Appellant.

Syed Azad Hussain Shah, Advocate for Respondents.

Date of hearing: 28th November, 2001.

2002 C L C 1160

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

KHALID MAHMOOD‑‑‑Appellant

versus

NAJIB KHAN and 2 others‑‑‑Respondents

Civil Appeal No.75 of 2001, decided on 30th January, 2002.

(On appeal from the judgment and decree of the High Court, dated 25‑4‑2001 in Civil Appeal No.20 of 1999).

Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.)‑

‑‑‑‑‑Ss. 6, 14 & 20‑A‑‑‑Transfer of Property Act (IV of 1882), S.52‑‑­Civil Procedure Code (V of 1908), 0.1, RAO ‑‑‑Suit for pre‑emption ‑‑­Impleading of party‑‑‑Application for‑‑‑Pending suit, applicant moved an application for being impleaded in the line of defendants alleging that he had purchased the land in dispute from the original vendees through sale­-deed‑‑‑Trial Court decreed the suit and application filed by applicant for impleading him as party was dismissed holding that applicant was not a necessary party in view of the fact that alleged sale‑deed in his favour was executed by the first vendee during the pendency of suit and same was hit by principle of lis pendens‑‑‑Judgment of the Trial Court was upheld up to the High Court‑‑‑Validity‑‑‑Transfer made by the first vendee in favour of applicant was made after about seven years of expiry of the period of limitation prescribed for filing the pre‑emption suit against the first vendee ‑‑‑Applicant/alleged purchaser from the first vendee was hit by the principle of lis pendens envisaged under S.52 of Transfer of Property Act, 1882‑‑‑Applicant could resist the suit only if the land in dispute would have been transferred to him within the period of limitation prescribed for filing the pre‑emption suit against the first sale‑‑‑Applicant could not be said to have stepped into the shoes of first vendee and that he was competent to avail any of the defence which was available to the first vendee ‑‑‑Applicant was not a necessary party and that he should have not been impleaded in the suit as such.

Fazal Dad v. Khadim Hussain 1995 MLD 1299 and Muhammad Malik v. Haji Muhammad Bashir 1994 CLC 2020 ref.

Raja Muhammad Siddique Khan, Advocate for Appellant.

Ch. Mansif Dad, Advocate for Respondents.

Date of hearing: 28th January, 2002.

2002 C L C 1165

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

MANZOOR HUSSAIN ‑‑‑ Appellant

versus

MUHAMMAD FAZAL and 8 others‑‑‑Respondents

Civil Appeal No.58 of 2001, decided on 31st December, 2001.

(On appeal from the judgment of the High Court dated 19‑2‑2001 in Civil Appeal No.75 of 1998).

(a) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 60‑‑‑Civil Procedure Code (V of 1908), O.XXXIV, R.1‑‑‑Suit for redemption of mortgage‑‑‑Plaintiff by providing oral as well as documentary evidence on record had proved that land in dispute was mortgaged by his father to the father of the defendants after receiving amount from the mortgagee and that the plaintiff was entitled to obtain a decree for possession through redemption of mortgage‑‑‑Defendants had claimed that land in dispute was transferred by the father of the plaintiff to their father through an agreement to sell‑‑‑Defendants could not challenge the entries of Revenue Record showing that land in dispute was mortgaged and was not sold to the father of the defendants, nor they could prove any registered agreement to sell in favour of their father nor the transfer of the suit‑land in his favour on the basis of any agreement to sell‑Originally the title of suit‑land vested with the plaintiff which was admitted by the defendants‑‑‑Trial Court in circumstances, was not justified to dismiss the suit.

Ch. Liaqat Ali v. Mirza Abdul Aziz and 3 others 2001 CLC 1502 and Abdullah Bhatti and another v. Muhammad Din PLD 1964 SC 106 ref.

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 53‑A‑‑‑Part performance of contract‑‑‑Section 53‑A of Transfer of Property Act, 1882 was merely a shield which could be used in defence and not as a weapon to assert title over the property‑‑‑Section 53‑A could only be used as a defence in answer to claim of possession by the vendor or any other person claiming through or under him and is limited to cases where the transferee had taken possession in pursuance of any agreement to sell and same does not operate as a bar to the plaintiff against asserting his title which originally

Mumtaz Hussain Khan and 5 others v. Muhammad Hussain and 3 others 2001 CLC 946 ref.

(c) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑Ss. 17 & 49‑‑‑Documents which are to be compulsorily registered‑‑­Effect of non‑registration‑‑‑Under S.17 of the Registration Act, 1908 the documents mentioned in subsection (1), cl.(b) which create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees or upward are compulsorily registrable, and if not registered shall not operate to create, declare, assign, limit or extinguish whether in present or future any right title or interest to or in an immovable property‑‑‑Principles.

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

‑‑‑‑S. 3G‑‑‑Khasra Girdawari‑‑‑No presumption of truth is attached to Khasra Girdawari but the entries therein have much more evidentiary value than an oral evidence.

Zafar Hussain Mirza, Advocate for Appellant.

Ch. Muhammad Riaz Alam and. Liaqat Afzal, Advocates for Respondents.

Date of hearing. 27th December, 2001.

2002 C L C 1186

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. Muhammad Yunus Surakhvi, J

ABDUL HAMID‑‑‑Appellant

versus

CUSTODIAN OF EVACUEE PROPERTY and 29 others‑‑‑Respondents

Civil Appeal No. 202 of 1998, decided on 20th May, 1999.

(On appeal from the judgment of the High Court, dated 9‑10‑1998 in Writ Petition No.461 of 1997).

(a) Pakistan (Administration of Evacuee) Property Act (XII of 1957)‑‑‑

‑‑‑‑S. 43‑‑‑Azad Jammu and Kashmir Interim Constitution Act, 1974, Ss.42 & 44‑‑‑Writ jurisdiction exercise of ‑‑‑Finding of a Special Tribunal would not ordinarily be interfered with in exercise of writ jurisdiction of High Court‑‑‑Such findings could only be set aside if same were given on no material or there was gross misreading of evidence‑‑‑While exercising powers of review under S.43 of Pakistan (Administration of Evacuee Property) Act, 1957 it was not obligatory for the Custodian to record any, evidence‑‑­Custodian could do so only if circumstances of case so necessitated ‑‑‑High Court, while exercising writ jurisdiction, would not sit as a Court of Appeal on orders passed by a subordinate Court or Tribunal‑‑‑ Marked difference existed between jurisdiction which was available to High Court as a Court of Appeal and the one it exercised in case of a writ petition.

Saif Ali v. Custodian Evacuee Property 1993 SCR 39; Sardar Ali and others v. Karamat Ali Khan and others 1993 SCR 226; Lt.‑Col., Sanaullah Raja v. Muhammad Shafi and 2 others 1997 PCr.LJ 1527; Muhammad Shafi v. Mst. Jannat Bibi and others 1994 SCR 247; Mohtrama Benazir Bhutto v. Mr. Farooq Ahmad Khan Leghari, President of Pakistan and 2 others PLD 1998 SC 388; Muhammad Iqbal and others v. Custodian of Evacuee Property and others 1996 SCR 359; Zafar Iqbal v. Abdul Aziz and another 1998 CLC 286; Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355; Muhammad Subhan v. Muhammad Ibrahim and 3 others PLD 1994 SC (AJ&K) 41; Muhammad Shafi Khan v. Ghulam Din and 4 others PLD 1992 SC (AJ&K) 58; Mir Alam Khan v. Mst. Afsar Jan PLD 1982 SC (AJ&K) 107; Muhammad Jamil v. Muhammad Siddique and another 1999 YLR 1089 and Kh. Ghulam Qadir and another v. Custodian Evacuee Property and others Civil Appeal No. 10 of 1992 ref.

(b) Pakistan (Administration of Evacuee) Property Act (XII of 1957)‑‑‑

‑‑‑‑Ss. 18‑A(2), (3) & 18‑B‑‑‑Provisional proprietary rights transfer of‑‑­Custodian, under S.18‑A(2) of Pakistan Administration of Evacuee Property) Act, 1957 had to satisfy himself about genuineness of claim of allottee while transferring provisional proprietary rights on certificate of entitlement issued by Rehabilitation Commissioner‑‑‑If there was no objection regarding genuineness of allotment at the time of issuing transfer of proprietary rights, Custodian would ordinarily issue the same, in case of objection he could cancel allotment under S. 18‑B of the Act after holding an inquiry if found necessary, or without it‑‑‑Custodian, in the present case, transferred the proprietary rights and no objection was raised regarding allotment in question before the Custodian that same was not genuine‑‑‑Such transfer could not be assailed on ground that no inquiry was held by Custodian at time of transferring those rights‑‑‑While issuing a certificate of entitlement under S.18‑A(3) of the Act, it was necessary for Rehabilitation Commissioner to hold an inquiry even when no objection to such allotment was before him.

(c) Pakistan (Administration of Evacuee) Property Act (XII of 1957)‑‑‑

‑‑‑‑S. 18(7)‑‑‑Transfer of provisional proprietary rights, cancellation of‑‑‑Party opposing transfer of right in favour of allottee had not initiated proceedings for cancellation of allotment made in favour of allottee either before Government or Rehabilitation Authorities during the last 35 years‑‑‑Contention that inquiry should have been held by Revenue Authorities, under S.18(7), Pakistan (Administration of Evacuee property) Act, 1957 which otherwise was introduced by amendment long after transfer of proprietary rights was repelled in circumstances.

Muhammad Akram v. Mst. Saeeda Begum 1980 SCMR 327 and Abdul Majid Shaida v. Mst. Noor Jehan and another PLD 1967 SC 221 ref.

Ch. Abdul Aziz, Advocate for Appellant.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondents

For remaining respondents, ex parte.

Date of hearing: 12th May, 1999.

2002 C L C 1634

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J.

and Muhammad Yunus Surakhvi, J

QAMAR ZAMAN and 39 others‑‑‑Appellants

Versus

AURANGZEB and 2 others‑‑‑‑Respondents

Civil Appeal No. 114 and Civil Miscellaneous No. 50 of 2001, decided on 24th December, 2001.

(On appeal from the judgment of the High Court, dated 27‑4‑2001 in Writ Petition No.272 of 1999).

(a) Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985‑‑‑

‑‑‑‑Rr. 2(c), 3(4), 7, 8, 9 & 10‑‑‑Allotment of Khalsa land‑‑‑Setting aside order of allotment‑‑‑Land allotted to allottee was neither entered in the Revenue Record as "Ghair Mumkin Jheel" nor it was reported by the Revenue officials to be used for village common purposes‑‑‑Collector allotted the land after observing all the formalities required by law‑‑‑Land in question having rightly been allotted by the Collector, order of higher Revenue Authorities setting aside order of Collector without giving cogent reasons was violative of law and could not sustain‑‑‑Order was set aside.

Raja Muhammad Hayat Khan v. Board of Revenue and others 1999 YLR 147 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--‑‑

‑‑‑‑Ss. 42 & 44‑‑‑Appeal to Supreme Court‑‑‑Point not, raised before the High Court but raised in appeal before the Supreme Court, could not be allowed to be raised.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 44‑‑‑Writ jurisdiction‑‑‑Scope‑‑‑Being assumption of facts‑‑‑Orders by Authorities on wrong assumption of facts could be set aside by the High Court in writ jurisdiction, if the same seemed to be patently illegal and erroneous.

Raja Muhammad Hayat Khan v. Board of Revenue and others 1999 YLR 147 ref.

Abdul Rashid Abbasi, Advocate for Appellants.

Kh. Shahad Ahmed. Advocate for Respondent No. 1.

Muhammad Noorullah Qureshi, Advocate for pro forma Respondents.

Date of hearing: 12th December, 2001

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2002 C L C 1653

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi. Actg. C. J.

DEVELOPMENT AUTHORITY, MUZAFFARABAD through

Chairman, Muzaffarabad and 3 others‑‑‑Respondents

Versus

IQBAL HUSSAIN NIZAMI‑‑‑Respondent

Civil Petition for Leave to Appeal No.22 of 2002. decided on 4th March, 2002.

(On appeal from the judgment of the High Court. dated 29‑11‑2001 in Writ Petition No.269 of 2001).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 42(12)‑‑‑Petition for leave to appeal‑‑‑Delay, condonation of‑‑­Petition was barred by limitation of one day for which neither petitioner had furnished sufficient explanation nor had moved application for condonation of delay‑‑‑Delay of each and every day was to be explained by the petitioners for lodging petition after prescribed period of limitation‑‑‑Petition otherwise being incompetent and barred by time, was dismissed.

Mehboob and another v Muzaffar Din 1992 SCR 338; Azad Jammu and Kashmir Government v. Rashid Ahmed Katel Civil P.L.A. No.41 of 1987 and Azad Government of the State of Jammu and Kashmir v. Ch. Muhammad Latif PLD 1983 SC (AJ&K) 70 ref.

Raja Ibrar Hussain Khan, Advocate‑General and Khawaja Nazir Ahmed Wani, Advocate for Petitioners.

Raja Muhammad Hanif Khan, Advocate for Respondent

Date of hearing: 1st March, 2002.

2002 C L C 1662

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, Actg. C.J.

Khawaja Muhammad Saeed, J

AZAD JAMMU AND KASHMIR GOVERNMENT

through Chief Secretary, Muzaffarabad

and 10 others‑‑‑Respondents

Versus

ABDUL RASHID and 5 others‑‑‑Respondents

Civil Miscellaneous No.4 of 2002, decided on 14th March, 2002.

(Application for restoration of Appeal No. 140 of 2001 which was dismissed for non‑prosecution on 20‑12‑2001).

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

‑‑‑‑O. IX, R. 9‑‑‑Dismissal of case for default in appearance of party‑‑­Principle‑‑‑When a case was dismissed for default in appearance of a party or his counsel, it was duty of that party or counsel to show "sufficient cause" as to why case was not prosecuted on the relevant date‑‑‑If circumstances were beyond control of the party or his counsel then the same be considered to be "sufficient cause" for restoration of suit or appeal.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

‑‑‑‑S. 42(10)(11)‑‑‑Appeal before Supreme Court‑‑‑Dismissal in default‑‑­Restoration‑‑‑Nobody having appeared on behalf of appellants on the date fixed for hearing appeal was dismissed in default‑‑‑Counsel for appellants was duly served with a notice by Registry Officer that appeal would be heard on the fixed date‑‑‑After service of that notice upon counsel for appellants no justification was left to allege that counsel could not note in his diary. the date fixed for hearing arguments in appeal‑‑‑Contention that appeal should have been decided on merits as valuable rights of parties were involved, had not been recognized as a sufficient cause for restoration of appeal which was dismissed in default for non­appearance‑‑‑Appellants were to keep themselves informed from their counsel about the next date fixed for hearing appeal because there were as many as 11 appellants who though were Government officials, but they could not be absolved of their responsibility to contact their counsel to appear and argue appeal on date fixed‑‑‑Appellants or their counsel had failed to show any sufficient cause for restoration of appeal which was dismissed in default for non‑appearance of appellants as well as their counsel‑‑‑Application for restoration of appeal having no merits was dismissed.

Anjuman Masjid New Town v. Syed Muhammad Binhori PLD 1990 SC 753; Asghar Abbas v. Muhammad Ramzan and 4 others 1993 CLC 1313; Mst. Zubaida Mumtaz Begum and others v. Mst. Ikram Jan and another 1990 SCMR 1025; Muhammad Nazir and 9 others v. Muhammad Sadiq and 7 others PLD 1989 Azad J&K 28; , Khawaja Ghulam Qadir and another v. Muhammad Sharif and Il others 2000 MLD 2047; Muhammad Rafique v. Muhammad Shafi Dar and others 2001 PLC (C.S.) 202; Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 1999 YLR 1426; Qurban Ali and another v. The State PLD 1984 SC (AJ&K) 104; Zulfiqar Ali v. Lai Din SCMR 162; Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others 1974 SCMR 223 and Muhammad Yunas and 7 others v. Auqaf Department and others 2000 MLD 1668 ref.

Raja Muhammad Hanif Khan, Advocate for Petitioners

Abdul Rashid Abbasi, Advocate for Respondents.

Date of hearing: 6th March, 2002.

2002 C L C 1674

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, Actg. C.J.

and Khawaja Muhammad Saeed, J

AZAD GOVERNMENT OF THE STATE

OF JAMMU AND KASHMIR through

Chief Secretary, Muzaffarabad

and 8 others‑‑‑Appellants

Versus

MUMTAZ AHMED QURESHI‑‑‑Respondent

Civil Appeal No. 122 of 2001, heard on 27th February, 2002.

(On appeal from the judgment of the High Court, dated 12‑7‑2001 in Writ Petition No.382 of 2000).

(a) Azad Jammu and Kashmir Imposition of Restriction Ordinance, 1980‑‑‑

---‑S. 11‑‑‑Azad Jammu and Kashmir Rules of Business, 1985, R.7(c) & (d)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44‑‑‑Writ petition before High Court‑‑‑Construction of petrol pump‑‑­Respondent had claimed that he had obtained "No Objection Certificates" from the Authorities concerned for construction of petrol pump on the land owned by him‑‑‑Respondent was directed under the orders of Chief Secretary not to start construction work and on the representation by respondent and Chief Secretary, constituted a committee to look into the matter‑‑‑Committee in its report suggested that construction of petrol pump on the site not only would be dangerous to the locality but would be a violation of master plan and also a security risk‑‑‑Respondent was thus prohibited to raise construction of petrol pump‑‑‑Constitutional petition filed by respondent against prohibition order was accepted by High Court assuming that respondent had secured "No Objection Certificates" for the construction of petrol pump on the site whereas none of the Authorities had granted "No Objection Certificate" to the respondent‑‑‑Respondent in writ petition filed in High Court had never averred that he wanted to construct a petrol pump, but it was simply alleged by him that he wanted to dig land and raise certain construction‑‑­Judgment passed by High Court besides being outside scope of pleading of parties, was a result of non‑reading, misreading and non‑application of judicial mind and same could not be construed to be a judgment in eye of law‑‑‑Supreme Court accepting appeal set aside judgment of High Court.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 4: Fundamental Rights, 8, 14 & S.44‑‑‑Writ petition before High Court‑‑‑Fundamental rights, violation of‑‑‑Fundamental Rights 8 & 14 of the Azad Jammu and Kashmir Interim Constitution Act had provided that freedom of trade, business or profession and protection of property would be allowed save in accordance with law‑‑‑High Court allowed petitioner to raise construction of his land in accordance with map/plan subject to supervision of relevant Authorities, despite the fact that petitioner had neither obtained approved map/plan nor approval from the relevant Authorities‑‑‑Construction work, in circumstances could not have been carried in vacuum‑‑‑High Court was not justified to rely upon Fundamental Rights allowing petitioner to raise construction when said construction was not in accordance with law‑‑‑Azad Government of State of Jammu and Kashmir was necessary party in the case, but petitioner, without impleading that necessary party in writ petition, had obtained relief, which was ineffective and un-executable‑‑‑Writ petition was incompetent on account of non‑impleading of Government and Government having not been impleaded was not bound by judgment of High Court.

Raja Muhammad Hanif Khan, Advocate for Appellants.

M. Tabassum Aftab Alvi, Advocate for Respondent.

Date of hearing: 27th February, 2002.

2002 C L C 1947

[Azad J&K]

Before Syed Manzoor Hussain Gilani, CJ

Sardar NASIM AHMED SARFRAZ‑‑‑Petitioner

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary at Muzaffarabad and 2 others‑‑‑Respondents

Writ Petition No.404 of 2001, decided on 29th September, 2001.