CLC 2003 Judgments

2003 C L C 87

[Board of Revenue N.‑W.F.P.]

Before Syed Mazhar Ali Shah, Senior Member

SHAMSUL HAQ‑‑‑petitioner

Versus

AURANGZEB and others‑‑‑Respondents

Case No.31 of 2002, decided on 29th August, 2002.

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

‑‑‑‑Ss. 135, 141 & 164‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Application ‑by respondents for partition of ancestral property‑‑­Petitioner sought stay of partition proceedings because of pendency of suit for declaration in Civil Court‑‑‑Revenue Officer on production of status quo order from High Court initially stayed proceedings, but later on reviewed its order and did not stop proceedings on the ground that any joint owner could file application for partition‑‑‑Validity‑‑‑Partition of agricultural land was within jurisdiction of Revenue Officer‑‑­Respondents were recorded as joint owners in Revenue Record, the validity of which had not been challenged‑‑‑Petitioner in plaint of civil suit had admitted the property to be ancestral having devolved upon parties in equal shares after death of their father‑‑‑Petitioner had not' challenged title of respondents to property under partition‑‑‑Respondents were co‑sharers in joint property having right to separate their share under law‑‑‑Alleged civil suit for declaration being not with regard to property subject‑matter of partition, proceedings had no relevancy with partition case‑‑‑Stay of partition proceedings was not justified in eyes of law‑‑‑Board of Revenue rejected revision petition in circumstances.

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

‑‑‑‑S. 141‑‑‑Question of title means a dispute as to ownership of property.

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

‑‑‑‑S. 141‑‑‑Stay of partition proceedings‑‑‑Precondition‑‑‑Question of title‑‑‑Duty of Revenue Officer‑‑‑Principles.

Partition proceedings can only be stayed when Revenue Officer, after examining the case, decides that question of title is involved. Partition proceedings cannot be stayed merely on the assertion of party that such a question exists, neither in law nor in equity is there any warrant for proposition that partition proceedings must be stayed the moment a party utters that a question of title is involved. Revenue Authorities being in possession of Revenue Record, wherein a party has been recorded as co‑sharer are bound to proceed with application for partition of joint land in accordance with law.

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

‑‑‑‑S. 163‑‑‑Review‑‑‑Revenue Officer was competent to review his own order in the best interest of justice.

Waris Khan for Petitioner.

Gul Sadbar for Respondent

2003 C L C 603

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

LAL DIN and 5 others‑‑‑Petitioners

Versus

KARAM DIN through Legal Heirs and 2 others‑‑‑Respondents

R.O.R. No.3453 of 1986, decided on 27th June, 2001.

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

‑‑‑‑Ss. 10, 19‑A & 30‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.164‑‑‑Allotment of land under Ejected Tenants Scheme‑‑­Succession of tenancy‑‑‑Land in dispute was allotted to predecessor‑in ­interest of parties under Ejected Tenants Scheme and proprietary rights in respect of land were also conferred on him‑‑‑After death of original allottee/predecessor‑in‑interest, only two of his legal heirs who allegedly were in cultivating possession of land in question applied for grant of proprietary rights to them‑‑‑Tehsildar recommended transfer of tenancy under S. 19‑A of Colonization of Government Lands (Punjab) Act, 1912 to all the legal heirs of the deceased original allottee‑‑‑District Collector transferred the land to all the legal heirs of the deceased in view of recommendation of Tehsildar‑‑‑Two applicants/legal heirs of deceased who sought transfer of land only in their favour, filed appeal against order of District Collector contending that they being actual cultivators of the land in question and paying Lagan, were entitled to transfer of entire land in their names only‑‑‑Appeal filed by said applicants was accepted by Additional Commissioner‑‑‑Validity‑‑‑In view of policy letter dated 20‑1‑1960 of the Board of Revenue, tenancy under Ejected Tenants Scheme had to devolve on heirs of deceased allottee provided that they did not cultivate any other areas in the lifetime of original allottee; that family entirely lived on allotted area and that no other land was acquired by them‑‑‑In a subsequent policy letter dated 30‑11‑1963 issued by Board of Revenue it was further decided that proprietary rights had to be conferred on all heirs of deceased allottee‑Additional Commissioner, in circumstances, had erred in setting aside order of District Collector‑‑‑All legal heirs being equally entitled to inheritance of deceased allottee according to policy, order of Additional Commissioner transferring inheritance to only two legal heirs of deceased and depriving the other legal heirs, could not be upheld‑‑‑Order passed by Additional Commissioner in appeal was set aside.

Mansoor‑ul‑Islam for Petitioners.

Muhammad Iqbal Representative of D.C., Sheikhupura.

Shahzad Shaukat for Respondents.

Petitioner in person

Respondent in person.

Date of hearing: 15th March, 2001.

2003 C L C 1896

[Election Tribunal Punjab]

Before Justice Sayed Zahid Hussain, Election Tribunal

Mst. ASIF NAWAZ FATIANA---Petitioner

Versus

WALAYAT SHAH---Respondent

Election Petitions Nos. 13, 40, 77, 88, 106 and 165 of 2002, decided on 8th September, 2003.

(a) Representation of the People Act (LXXXV of 1976)---

----Ss. 52, 53, 54, 55, 56, 57, 62 & 64---Scope and application of Ss.52, 53, 54, 56, 57, 62, & 64, Representation of the People Act, 1976.

(b) Representation of the People Act (LXXXV of 1976)---

----Ss. 62---Procedure before Election Tribunal---Election Tribunal, which seized of an election petition is vested with the powers of Civil Court trying a suit under Civil Procedure Code, 1908 and an added emphasis has been laid down qua the procedure to be followed by the Tribunal, vide S.62, Representation of the People Act, 1976, import whereof cannot be overlooked.

(c) Representation of the People Act (LXXXV of 1976)---

----Preamble---Object, scope and application of Representation of the People Act, 1976.

The Election Tribunal while seized of an election petition is vested with the powers of Civil Court trying a suit under the Code of Civil Procedure an added emphasis has been laid down qua the procedure to be followed by it, vide section 62 import whereof cannot be overlooked.

The Representation of the People Act, 1976 is a Special Act which provides for the establishment of Special Tribunals for resolving election disputes. A particular period of limitation for an election petition i.e. 45 days has been prescribed by the Legislature. The Act is a complete and self-contained Code. It is a special law dealing with the essential aspects of the election disputes and petitions and the procedure to be followed by the, Tribunal. Though the Tribunal is vested with all the powers of a Civil Court available to the said Court under the Code of Civil Procedure, 1908 yet the provisions of the Representation of the People Act, 1976 have to be kept in view and wherever there be any inconsistency or overlapping the provisions of the later Special Act, would prevail.

Where general Act is incorporated with a Special Act subsequently passed relating to a particular subject-matter, a provision in the Special Act prevails over an inconsistent provision in the general Act.

(d) Interpretation of statutes---

----Provision of Special Act to prevail over an inconsistent provision in the general Act.

Where general Act is incorporated with a Special Act subsequently passed relating to a particular subject-matter, a provision in the Special Act prevails over an inconsistent provision in the general Act.

Understanding Statutes, Canons of Construction by S.M. Zafar, Second Edn., p.307 quoted.

(c) Representation of the People Act (LXXXV of 1976)---

----Ss. 62 & 64---Procedure before and powers of the Election Tribunal---Election Tribunal shall have all the powers of a Civil Court under Civil Procedure Code, 1908 except for the trial of Election Petitions, wherein the Election Tribunal shall follow the procedure prescribed by the Election Commission.

Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426 ref.

(f) Representation of the People Act (LXXXV of 1976)----

----Ss. 62 & 64---Procedure before Election Tribunal---Framing of issues by the Election Tribunal was not a mandatory requirement of law.

Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426 ref.

(g) Representation of the People Act (LXXXV of 1976)---

----Ss. 56, 63, 62, 52 & 53---Election petition---Dismissal of petition during trial---Contention was that once the election petition had been referred for trial to the Election Tribunal, the same could not be dismissed for non-observance of procedural requirements---Validity--­Election Commissioner had though been empowered under S.56, Representation of the People Act, 1976 td dismiss the election petition forthwith in case the provisions of Ss.52, 53 or 54 had not been complied with yet the Election Tribunal was also vested with such power by virtue of S.63 of the Act to dismiss an election petition during the trial if the provisions of S.54 or S.53 had not been complied with or the petitioner had failed to make further deposit required under S.62(4) of the Act.

(h) Representation of the People Act (LXXXV of 1976)---

----Ss. 63 & 55(3)---Dismissal of election petition during trial ---Non-verification of election petition, its schedule and annexures---Effect--­Consequences for non-verification of election petition as contemplated by S.55(3) of the Representation of the People Act, 1976 having been mentioned under S.63 of the said Act, election petition would be dismissed for such defect and question of curability of non-verification or that such a requirement was of directory nature would not assume any significance---Law itself having taken care of the situation i.e. dismissal of the petition for non-verification in terms of lave the requirement had to be regarded as of mandatory nature.

Muhammad Ibrahim v. Muhammad Arif Sardar 1986 CLC 2050; Peter John Sahotra v. Returning Officer and others 1995 CLC 394; Syed Iftikhar Hussain Gillani v. Anwar Kantal Khan and 3 others 1997 CLC 1724; Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134; Major Shajat Ali v. Mst. Surraya Begum PLD 1978 SC (AJ&K) 118; Muhammad Ismail v. Haji Muhammad and Sons PLD 1978 Kar. 926; Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250; Muhammad Azad Gul v. Said Muneer Said and 11 others 1997 CLC 1132; Alam Zaib Khanu v. Muhammad Nawaz Khan and 2 others 1998 CLC 83 and Khawaja Muhammad Awan v. Alim Adil and 19 others 1998 CLC 272 ref.

(i) Representation of the People Act (LXXXV of 1976)---

----Preamble & S.62---Provisions of the Representation of the People Act, 1976, insofar as these relate to the election disputes, providing particular forum (Election Tribunal) and procedure are of special nature and will have primacy and overriding effect in case of any inconsistency and conflict with any other law of general nature.

(j) Representation of the People Act (LXXXV of 1976)---

----Ss. 63 & 55(3)---Dismissal of petition during trial---Contents of petition---Provisions of S.55(3) read with S.63 of the Representation of, the People Act, 1976 are of mandatory nature and non-verification or defective verification as contemplated by S.55(3) of the Act would entail the consequence of dismissal of election petition.

(k) Administration of justice---

---- Where the law prescribes the method of doing a thing in a particular manner, the same has to be done in that manner failure whereof may ensue the legal consequence.

(l) Representation of the People Act (LXXXV of 1976)---

----Ss. 55, 53, 52 & 62---Election petition---Pleadings are to be verified on oath and the. oath is, to be administered by a person who is duly authorized in that behalf.

2000 SCMR 250 ref.

(m) Representation of the People Act (LXXXV of 1976)---

----Ss. 54, 55 & 63---Election petition---Scrutiny of election petition by the Election Commission and its reference, to the Election Tribunal does not demand the Tribunal of the power to dismiss the same for non­observance of S.54 or 55 of Representation of the People Act, 1976, otherwise the provisions of S.63 of the said Act would he rendered redundant and nugatory.

(n) Representation of the People Act (LXXXV of 1976)---

----Ss. 62 & 64---Election petition---Election Tribunal though had the powers of a Civil Court under the Code of Civil Procedure, 1908 yet for the trial of election petition, the Tribunal was to follow the procedure by the Election Commission.

1996 SCMR 426 ref.

(o) Representation of the People Act (LXXXV of 1976)--­

----Ss. 55(3) 54 & 63---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Non-compliance of provisions of S.55(3) of the Representation of the People Act, 1976 which related to the manner of verification---Verification had not been attested or verified by any Oath Commissioner or a person duly authorized to administer the oath--­Effect---Such a verification being violative of S.55 of the Act, the petition was liable to be dismissed---Petitioners in the present cases, though had placed on record their affidavits which did not fulfil the requirements of O.VI, R.15, C.P.C. inasmuch as the same did not specify by reference to the numbered paragraphs of the petition what he verified of his own knowledge and what he verified upon information received and believed to be true, but failure to verify the petition as mandated by law could not be cured by filing affidavit nor non-compliance of law could be overlooked or condoned.

Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250 and Syed Iftikhar Hussain Gillani v. Anwar Kamal Khan and 3 others 1997 CLC 1724 ref.

Hafiz Khalil Ahmad for Petitioner (in Writ Petition No.13 of 2002).

Inayat Ullah Cheema, S.M. Masood, Shahzad Shaukat, Muhammad Saeed Ansari, Ijaz Akbar and Muhammad Younas Khan for Petitioners (in other Cases).

Riaz Hussain Khan for Respondent No. 1.

Ahsan Bhoon, Hasnat Ahmad, Fiza Ullah and Kashif Nawaz Bajwa for Respondents (in other Cases).

Dates of hearing: 18th April; 21st,.30th May; 6th, 11th June; 7th, 11th, 21st and 22nd July, 2003.

2003 C L C 1224

[Election Tribunal Sindh]

Before Justice Amir Hani Muslim, Election Tribunal

MUHAMMAD AHMED SIDDIQUI---Petitioner

Versus

ZAMIR AHMED TUNIO and 20 others---Respondents

Election Petition No. 8 of 2002, decided on 25th March, 2003.

(a) Representation of the People Act (LXXXV of 1976)---

----S. 78---Election petition---Election of returned candidate was challenged on the ground of rigging by him and his agents in connivance with the Returning Officer and the other election staff---Petitioner examined himself and had not examined any other witness to substantiate averments made in his petition as well as in his affidavit-in-evidence and had chosen not to produce his polling agents or any official of the Election Authority to prove those allegations---Petitioner, under S.55 of the Representation of the People Act, 1976, was required to plead precise statement of material facts with full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed including as full a statement as possible of the names of the parties alleged to have committed such corrupt practices and the date and place of the commission of such practice---In absence of material facts in terms of S.55, the statement with regard to the alleged practice made in the petition and in the affidavit-in-evidence was of general nature which could hardly be made a ground to declare an election void or to unseat a returned candidate.

(b) Representation of the People Act (LXXXV of 1976)---

----S. 52(2)---Mere difference of number in votes after re-count of ballot papers of certain polling stations, on Election Tribunal's order was not by itself sufficient to pass further order of re-count of the entire constituency in absence of sufficient material.

(c) Representation of the People Act (LXXXV of 1976)---

----S. 78---Evidence required to prove corrupt practice must be restricted to the charges or instances mentioned in the petition and each ingredient of corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial---Where the evidence was wholly circumstantial, the Election Tribunal before finding a corrupt practice as proved must exclude all reasonable hypothesis which were consistent with the corrupt practice having not been committed.

Muhammad Saeed v. Election Petition Tribunal PLD 1957 SC (Pak.) 91 and Abdul Hafeez Khan v. Muhammad Tahir Khan Loni 1999 SCMR 284 fol.

Khawaja Sharful Islam for Petitioner.

Qazi Khalid Ali for Respondent No.2.

Date of hearing: 25th March, 2003.

2003 C L C 1961

[Election Tribunal Sindh]

Before Justice Amir Hani Muslim, Election Tribunal

MUHAMMAD AHMED SIDDIQUI‑‑‑Petitioner

Versus

ZAMIR AHMED TUNIO and others‑‑‑Respondents

Election Petition No.8 of 2002, heard on 25th March, 2003.

Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss. 52, 55 & 64‑‑‑‑Election petition‑‑‑Unsuccessful candidate had challenged the election alleging that election was rigged by the Returned Candidate and his agents in connivance with Returning Officer and other Election Staff and thus corrupt and illegal practices had been committed in the election‑‑‑Validity‑‑‑Petitioner, under S.55 of Representation of the People Act, 1976 was required to plead precise statement of material facts with full particulars of any corrupt or illegal practices or other illegal acts alleged to have been committed including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of commission of such practice or acts, but said facts were missing in the election petition‑‑‑Petitioner had neither provided in the election petition nor in his affidavit, in evidence, the instances of alleged corrupt practices‑‑‑Petitioner had failed to examine his Polling Agents who were present at the time of polling or any other person accompanying him during his visit to polling station to substantiate alleged corrupt practice‑‑‑Statement in regard to alleged illegal practices made in election petition as well as in affidavit‑in‑evidence, which was of general nature, could hardly be made a ground to declare election void on to unseat the returned candidate‑‑‑Petitioner had not examined any official of Election Authority against whom he had alleged corrupt practices‑‑‑No fresh ground was available to petitioner which could have warranted Election Tribunal even to order further re‑counting of votes of entire constituency‑‑‑Mere difference of number in votes after re‑count made‑on order of Election Commission, would not ipso facto be made a Sufficient ground to order further re‑count of entire constituency‑‑‑Petitioner having failed to produce any evidence to establish alleged corrupt practice against Returned Candidate or against Election Authorities, election petition filed by him was dismissed.

Sheela B. Charles v. Qaisar Ifraeem Soraya 1996 SCMR 1455; Muhammad Saeed v. Election Petitions Tribunal PLD 1957 SC (Pak.) 91 and Abdul Hafeez Khan v. Muhammad Tahir Khan Loni 1999 SCMR 284 ref.

Khawaja Sharful Islam for Petitioner.

Qazi Khalid Ali for Respondent No.2

Date of hearing: 25th March, 2003.

2003 C L C 38

[Karachi]

Before Shabbir Ahmed, J

Mrs. ANWAR JEHAN QURESHI‑‑‑Plaintiff

Versus

TRUSTEES OF THE PORT OF KARACHI through Chairman‑‑‑Respondent

Suit No. 1255 and Civil Miscellaneous Application No.7342 of 1999, decided on 23rd May, 2000.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Specific Relief Act (I of 1877), Ss. 12, 42 & 54‑‑‑Karachi Port Trust Act (VI of 1886), S.18‑‑‑Transfer of Property Act (IV of 1882), Ss. 112, 113 & 116‑‑‑Temporary injunction, grant of‑‑­Suit for declaration, specific performance and injunction‑‑‑Defendant (lessor) through its letter accepted plaintiff's offer for renewal of lease, but demanded security and increase in rental at excessive rate‑‑‑Plaintiff as tenant holding over .filed suit for determination of reasonableness of rental and security as she was ready for increase at reasonable rate to be determined by Court‑‑‑Plaintiff also prayed for interim restraint order against defendant‑‑‑Validity‑‑‑Defendant had accepted rent even after expiry of lease and issuance of such letter, thus, position of plaintiff could not be equated with tenant in possession without consent of landlord‑‑‑Plaintiff was running warehouse in premises and had opted for renewal of lease in terms of lease deed‑‑‑Terms and conditions to be settled were at variance‑‑‑Plaintiff's plea was that same were to be settled mutually, whereas defendant's plea was that Karachi Port Trust Board under S.18 of Karachi Port Trust Act, 1886 had unilateral power to fix terms and conditions‑‑‑Plaintiff had made out prima facie case in her favour and if she was ejected from premises, then she could not be compensated in term of money‑‑‑High Court accepted application for interim injunction, provided plaintiff continued to deposit rent in terms of expired lease agreement.

Mst. Sakina v. Karachi Metropolitan Corporation 1996 CLC 1080; Abdul Aziz Tayeb v. Trustees of the Port of Karachi 1984 CLC 2393 and Hayee Commercial Industrial Corporation v. Trustees of Karachi Port PLD 1986 Kar. 229 ref.

Nadeem Akhtar for Plaintiff.

Arif Khan for Defendant.

2003 C L C 53

[Karachi]

Before Shabbir Ahmed, J

Mst. HAMEEDA SHAMIM‑‑‑Plaintiff

Versus

DEPUTY COMMISSIONER, KARACHI SOUTH, KARACHI and 7

others‑‑‑Respondents

Suit Nos.1316, Civil Miscellaneous Application No.6870 of 1997 and 9950 of 1998, decided on 28th August, 1999.

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

‑‑‑‑Ss. 8, 39, 42 & 54‑‑‑Civil Procedure Code (V of 1908), SS. 11, 35‑A & O.VII, R.11‑‑‑Limitation Act (IX of 1908), Art.120‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 10 & 20(3)‑‑‑Suit for declaration, possession, injunction and cancellation of documents‑‑‑Rejection of plaint being hit by principle of res judicata and barred by time‑‑‑Plaintiff's claim was based on agreement of association dated 30‑7‑1967, whereby defendant (ZH) after getting allotment of property in "lieu certificate", surrendered his rights in her favour, when prior thereto, High Court by order dated 14‑12‑1965 passed in Constitutional petition had directed Settlement Authority to dispose of property by public auction‑‑‑Letters Patent Appeal filed against such order of High Court, wherein plaintiff and defendant (ZH) also joined as party, was dismissed with observations that Settlement Authority could not act in variation of such order of High Court, whereby property had been ordered to be put to public auction‑‑‑Plaintiff challenged such order passed in High Court appeal before Supreme Court by filing civil petition, which was dismissed as withdrawn‑‑‑Revision application filed by plaintiff under S.20(3) of Displaced Persons (Compensation and Rehabilitation) Act, 1958 was rejected‑‑‑Plaintiff then filed Constitutional petition, but same was dismissed‑‑‑Plaintiff then filed civil petition before Supreme Court, which was dismissed‑‑‑Contention of plaintiff was that after passing of order dated 14‑12‑1965 by High Court, property was available and could be disposed of by way of any method permissible under Settlement Laws, Rules including against "lieu certificate Validity‑‑‑Plaintiff had in fact reiterated same pleas, which had not found favour with High Court as well as the apex Court‑‑‑Plaintiff after having litigated twice up to Supreme Court in respect of subject‑matter, had turned again by presenting plaint in respect of matter, which had already been conclusively adjudicated between the parties‑‑‑Suit of plaintiff was hit by principle of constructive res judicata‑‑‑Order of Settlement Authority had attained finality, which had been challenged after expiry of limitation, as such suit was barred by limitation‑‑‑High Court rejected plaint with special costs of Rs.25,000.

Abdul Majeed and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146; Pir Bux v. Chairman, Allotment Committee PLD 1987 SC 145; Jan Muhammad v. Muhammad Khan AIR 1941 Lah. 169; Shaikh Barkat Ali v. M.S. Zaman PLD 1968 Lah. 770 and Messrs Pakistan Tobacco Co. v. Pakistan Cigarette Labour Union PLD 1964 Kar. 33 ref.

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

‑‑‑‑O. VII, R.11‑‑‑Rejection of plaint‑‑‑Duty of Court‑‑‑Provisions of O.VII, R.11. C.P.C. enjoin upon Court to bury a stillborn child at earliest stage.

M.M.K.A. Zai for Plaintiff.

Ch. Muhammad Rafiq, Addl. A.‑G. for Defendants Nos. 1 to 4.

Akhtar Mehmood and Nadeem Akhtar for Defendant No.6.

2003 C L C 96

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

Mrs. SALMA HAQUE‑‑‑Appellant

Versus

Mir MUHAMMAD ABDUL HAQ AWAN‑‑‑Respondent

First Rent Appeal No.659 of 1998, decided on 7th October, 2002.

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

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑ ‑‑Expression "good faith"‑‑‑Connotation‑‑‑Expression "good faith" could not be given any rigid definition, but same had to be decided keeping in view facts and circumstances of each case‑‑‑Landlord in order to establish good faith was required to prove that he had a genuine need of premises, which should certainly be more than a mere wish or desire‑‑‑Good faith and reasonableness were the matters to be inferred from circumstances of each case‑‑‑Reasonableness, good faith and bona fide requirement had to be judged from objective view‑point and not on mere assertion or denial of parties.

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

‑‑‑‑S. 15(2 )(vii)‑‑‑Bona fide personal need of landlord‑‑‑Determination of‑‑‑Criteria.

If a premises in possession of landlord is not suitable in peculiar facts and circumstances at the time of seeking ejectment of tenant, then requirement of landlord would be deemed to be bona fide, genuine, reasonable and in good faith entitling him to get premises in possession of tenant. However, if premises in possession of landlord is found suitable in given circumstances, then requirement of landlord would not be treated as bona fide and in good faith.

Rajab Ali v. Darius B Kandawala PLD 1984 Kar. 14 ref.

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

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord on ground of expansion or shrinking of his family‑‑‑Principles.

If landlord is living in a premises, which has become insufficient because of growth in family and day to day requirements of family members, then landlord is entitled to have possession of bigger house occupied by tenant.

If family of landlord had expanded and grown or landlord had genuine desire to live in better surroundings, it shall be treated as bona fide personal requirement in good faith and landlord shall be entitled to get the tenant ejected. Conversely, there could be no reason to discard plea of landlord that with the shrinking of family, a bigger and spacious house had become unsuitable to them and an unnecessary liability and therefore, a family comprising of two old persons require a smaller premises, which was manageable by them.

Abdul Rehman v. Mst. Ilyasee Begum 1989 CLC 536 ref.

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

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Family of landlady consisted of two old persons i.e. landlady and 'her husband‑‑­Landlady was living in a house owned by her husband and constructed over an area of 1000 sq. yds. and it was difficult for two old persons to manage and maintain such a big house‑‑‑Plea of landlady was a single unit house constructed by her on 81 sq. yds. having two bed rooms on first floor and drawing/dining room and kitchen on ground floor was suitable for their requirement‑‑‑Rent Controller dismissed ejectment application with observations that there appeared no transparent need for tenement as landlady was residing with her husband in a better accommodation than she was asking for tenement for personal need in good faith; and that landlady might have good faith for tenement, but she had not proved personal need‑‑‑Validity‑‑‑Such plea of landlady could not be held to be in bad faith‑‑‑Rent Controller had misdirected himself in giving such observations‑‑‑Rent Controller after observing that landlady may have good faith, was not justified in holding that landlady had not proved her personal need‑-High Court accepted appeal, set aside impugned findings of Rent Controller and directed tenant to vacate premises within two months.

Syed Hamid Hussain v. Mst. Humaira Ghias 1986 CLC 1973; Muhammad Abdul Rauf v. Mst. Mahmooda Begum 1985 SCMR 1960 and Anwar Ahmed v. Ghulam Qadir 1988 CLC 2338 ref.

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

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Prerogative of landlord to determine his personal bona fide requirement‑‑‑Not for tenant to determine as to what is suitable and reasonable for landlord.

Mrs. Mumtaz Sultana Begum v. Mrs. Ishrat Jehan 1989 CLC 639; Rajab Ali v Darius B. Kandawalla PLD 1984 Kar. 14 and Karimuddin Shad v Mst. Fatima Mian Ahmed 1989 CLC 545 ref.

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

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Mere getting evaluated premises from an Architect would not disentitle landlord from obtaining ejectment of tenant.

Rajab Ali v. Darius B. Kandawalla PLD 1984 Kar. 14 ref.

Zamiruddin Ahmed for Appellants.

Respondent in person.

Date of hearing. 16th September, 2002.

2003 C L C 132

[Karachi]

Before Zia Perwez, J

ABDUL SATTAR‑‑Plaintiff

Versus

PORT QASIM and others‑‑‑Defendants

Suits Nos. 1033, 1034 of 1998, 344 of 1999 and Civil Miscellaneous Applications Nos.8267, 8270 and 8273 of 2001, decided on 13th December, 2001.

(a) Words and phrases‑‑‑

‑‑‑‑"Quality"‑‑‑Meaning.

Concise Oxford Dictionary ref.

(b) Words and phrases‑‑‑

‑‑‑‑"Evaluate"‑‑‑Meaning.

Oxford Encyclopaedic English Dictionary ref.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 41 & Second Sched.‑‑‑Civil Procedure Code (V of 1908), S.75(b) & O.XXVI, R.9‑‑‑Commission for local investigation, issuance of‑‑­Object‑‑‑Issuance of‑‑‑Commission for more than once‑‑Power of Court‑‑‑Scope.

The object of issuance of a commission for local investigation under provisions of section 41 and read with Second Schedule to Arbitration Act, 1940, is to seek elucidation of facts in dispute and commissions are issued in all cases where local investigation deemed requisite or proper for such purpose. This power is not restricted under the law in any way and commissions may be issued more than once, that be requisite or proper, and no bar to production of such evidence as may be admissible under the law is attracted to restrain arbitrators from taking the same into consideration in pursuance of the terms of contract.

Akbar Ali and others v. Province of Punjab and others 1990 CLC 718; Zaheer‑ud‑Din and others v. Mst. Khurshida Begum 1996 CLC 580; Muhammad Nisar Dossa and 5 others v. Muhammad Hussain Dossa and 16 others PLD, 2000 Kar. 283; Muhammad Ali v. Malik Bashir Ahmed and 2 others 1997 SCMR 622; Rashid Khan v. Karachi Development Authority PLD 1989 Kar. 75; Marsden Urban District Council v. Sharp and another (1893), 9 TLR (sic) and Cunliffe v. The Hampton Wick Local Board (1893) 9 TLR 378 ref.

Bilal A. Khawaja for Plaintiff.

Arif Khan for Defendants.

Date of hearing: 13th December, 2001.

2003 C L C 152

[Karachi]

Before Wahid Bux Brohi, J

MUNIR HASSAN KHAN---Appellant

Versus

Syed AZIZ AHMED ‑‑‑Respondent

First Rent Appeal No.268 of 2001, decided on 28th August, 2002.

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

‑‑‑‑Ss. 6‑A & 17‑‑‑Ejectment application decided, by Additional ‑‑‑Original application had been signed by an endorsement about its presentation to concerned official of Controller of Rents‑‑‑Controller of Rents was competent to assign the case to an Additional Controller for hearing and disposal‑‑‑No infringement of any provision of lave had occasioned in circumstances.

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

‑‑‑‑S. 17(2)(i)‑‑‑Ex parte ejectment order‑‑‑Validity‑‑‑Notice could not be served on tenant through ordinary mode of service and same was ultimately published in newspaper‑ ‑‑Tenant's counsel thereafter appeared in Court and filed Vakalatnama and received copy of ejectment application‑‑‑Tenant, in spite of availing several opportunities, failed to file written statement whereas on the last date, he was also absent‑‑‑Rent Controller then closed his side of filing written statement and passed ex parte ejectment order, which was wholly justifiable in such circumstances‑‑‑Contention as to non‑compliance of S.17(2)(i) of the Act was misdirected and had no force.

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

‑‑‑Ss. 17 & 23‑‑‑Ejectment order passed in a second case‑‑‑Doctrine of res judicata‑‑‑Applicability‑‑‑Landlord withdrew application for execution of ejectment order passed in first case after tenant executed new agreement agreeing to pay monthly rent and also arrears of rent on intervals specified therein‑‑‑Tenant defaulted in fulfilling terms of new agreement, over which landlord filed ejectment application, which was allowed‑‑‑Contention of tenant was that second rent case was hit by S.23 of the Cantonments Rent Restriction Act, 1963‑‑‑Validity‑‑‑Earlier eviction order had been passed against tenant for his failure to comply with tentative rent order and his defence had been struck off under S.17(9) of the Act‑‑‑Execution of earlier eviction order had been withdrawn after execution of new agreement‑‑‑Circumstances of the case and cause of action were altogether different and premised on different sets of facts‑‑‑Default in payment of rent was not only in respect of current rent but also with regard to arrears‑‑ ‑Additional ground of default had resulted from non‑payment of utility bills‑‑‑Period and nature of default was wholly new‑Decision in the earlier case could not be final in respect of subsequent defaults, thus, bar contained in S.23 of the Act was not applicable.

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

---Ss. 17 & 27---Ex parte ejectment order against tenant on his failure to pay current rent arrears of rent and utility bills—Contention of tenant was that such order was violative of provisions of S. 27 of the Act—Validity—Tenant had not referred to any material for proving that Rent Controller had violated any provision of law—Sufficient opportunity had been afforded to tenant but he had failed to avail the same, thus on the basis of affidavit filed in ex parte proof, eviction order had been passed—Tenant failed to produce any document to show that he had made payment of current rent, arrears and utility charges in terms of agreement---Default in payment of rent had been clearly made out---Order passed by Additional Rent Controller was legal and perfectly justified and called for no interference.

M.A. Tariq Qureshi for Appellant.

Badrul Alam for Respondent.

2003 C L C 163

[Karachi]

Before S. Ahmed Sarwana, J

PARYAL and others‑‑‑Applicants

Versus

SHER MUHAMMAD and others‑‑‑Respondents

Civil Transfer Application No.2 and Civil Miscellaneous Application No.39 of 2002 (Suk), decided on 3rd May, 2002:

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

‑‑‑‑S. 16‑‑‑Territorial jurisdiction of Trial Court‑‑‑Extent‑‑‑Residence of defendant and location of suit property‑‑‑Suits relating to rights to or any interest in immovable property are to be instituted in Court‑‑‑Within the local limits of whose jurisdiction the property is situated‑‑‑Place of residence of defendant is immaterial in such cases.

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

‑‑‑‑Ss. 16 & 24‑‑‑Transfer of appeal‑‑‑Territorial jurisdiction‑‑‑Creation of new district‑‑‑At the time when the original suit was filed, the property in dispute was situated within the territorial limits of District Sukkur and was accordingly filed in the proper Court‑‑‑Territorial limits for the purpose of jurisdiction were changed several years later‑‑‑Appellants sought transfer of appeal from Sukkur District to Shikarpur District on the ground that the place where the suit property was located had been included in Shikarpur District‑‑‑Validity‑‑‑Such change of District would not affect the competence of the original Court to try the suit‑‑‑Appellants had rightly filed appeal before the appropriate Court in Sukkur and subsequently they were not allowed to blow hot and cold in one breath on the same point at their sweet‑will‑‑‑Creation of new Districts took place in the year 1983, and appeal was filed in the year 1991, where it was still pending‑‑‑High Court declined to transfer the appeal as the request was mala fide and vexatious‑‑‑Application was dismissed in circumstances.

Maqbool Ahmed Awan for Applicants.

A.M. Mubeen Khan for Respondents.

G. D. Shahani, Addl. A.‑G.

Date of hearing: 3rd May, 2002.

2003 C L C 171

[Karachi]

Before Zia Perwez, J

MUHAMMAD SALEEM‑‑‑Applicant

Versus

ABDUL MAJEED and another‑‑‑Respondents

Revision Application No. 196 of 1993, decided on 4th February, 2002.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court‑‑‑Concurrent findings of fact by the Courts below‑‑‑Reappraisal of evidence‑‑‑Scope‑‑‑Powers of High Court in revisional jurisdiction under S.115, C.P.C. are very limited‑‑‑On reappraisal of evidence even if a different view is possible. High Court cannot substitute its own view and upset the finding of facts concurrently arrived at by the Courts below‑‑‑Such findings can only be interfered with if the Courts below have misread the evidence on record or have. committed any jurisdictional error.

Haji Zareen Khan and 11 others v. Mureed Khan and 4 others 1998 CLC 1794 and Abdul Khaliq v. Rashim Ahmad 1999 MLD 2156 ref.

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

‑‑‑‑S. S4‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Revisional jurisdiction of High Court‑‑‑Two cross‑suits were filed by the parties against each other‑‑‑Suit filed by the petitioner was dismissed by Trial Court and appeal was also dismissed by the Appellate Court‑‑‑Contention of the petitioner was that the evidence and documents produced by him were not considered by the Courts below‑‑‑Validity‑‑‑No case of misreading or non‑reading of evidence was made out in the case as additional evidence was recorded and the matter was reconsidered on the basis of additional evidence‑‑‑Both the Courts below had rightly decided the issues which did not affect the validity of their decisions‑‑‑Both the Courts below arrived at concurrent findings of fact after considering the evidence available on record which had the effect of turning down the case and documents of the plaintiff while only one set of document could be sustained‑‑‑Evidence against the petitioner showed that in arriving at the conclusion, both the Courts below had considered the relevant evidence available on record and was supported by the respective concurrent findings‑‑‑Petitioner failed to make out any ground for interference and exercise of discretion under S.115, C.P.C.‑‑‑No case having been made out on the ground of any material irregularity or exercise of jurisdiction not vesting in the Courts or failure to exercise of jurisdiction vesting in them, judgments and decrees passed by the Courts below did not call for any interference or exercise of discretion on any point of law in the case of concurrent finding.

Kamal‑ud‑Din v. Abdul Hamid and others 1989 ALD 251; Muhammad Shah v. Aziz Akbar and 4 others PLD 1985 Pesh. 142; Zar Shah v. Fazal Ahmad PLD 1986 Pesh: 159; Haji Ilahi Bakhsh v. Noor Muhammad and others PLD 1985 SC 41; Kazim Ali Shah v. United Bank Limited 1988 CLC 913; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153 distinguished.

Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Mst. Sharifan through Legal Heirs and another v. Nazimuddin and another PLD 1994 Kar. 135; Miss Faryal Wali and others v. District Magistrate and others 1993 CLC 60; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PL,D 1970 SC 139; Haji Zareen Khan and 11 others v. Mureed Khan and 4 others 1998 CLC 1794 and Abdul Khaliq v. Rashim Ahmad 1999 MLD 2156 ref.

Mirza Saeed Baig for Applicant.

S.M. Aamir Naqvi for Respondents Nos. 1 and 2.

Nemo for Respondent No.3.

Date of hearing: 22nd October, 2001.

2003 C L C 180

[Karachi]

Before Sahibuddin Ahmad and Zia Perwez, JJ

GOVERNMENT OF SINDH and others‑‑‑Appellants

versus

TAUSIF ALI KHAN‑‑‑Respondent

High Court Appeal No. 158 of 2002, decided on 9th July, 2002.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 33‑‑‑Arbitration agreement‑‑‑Allegation of fraud‑‑‑Effect‑‑‑Where such allegation is made, the party against whom the allegation is made may successfully resist the reference to arbitration.

Russel v. Russel (1880) 14 Ch. D 471 ref.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 20, 33 & 39‑‑‑Reference to arbitrator‑‑‑Plea of fraud‑‑‑Matter between the parties was referred to arbitrator on the basis of presence of arbitration clause in the agreement between the parties‑‑‑Appellant resisted the reference on the plea of fraud‑‑‑Although, in the present case, a show‑cause notice had been issued but no finding of guilt against any officer, any prosecution nor even F.I.R.. was available on record‑‑­Allegation of fraud had not been substantiated in the case ‑‑‑Effect‑‑­Merely on allegation of fraud by the appellant, the respondent could not be deprived of his right to have the dispute resolved through arbitration‑‑­Question of fraud could be considered on its own merits even at later stage if sufficient material to make out a prima facie case was available‑‑‑High Court (Division Bench) declined to interfere with the order passed by the Judge in Chambers of High Court whereby reference was made to arbitrator‑‑‑Appeal was dismissed in circumstances.

Osenton & Co. v. Johnston 1942 AC 130; Manindra Chandra Nandy v. H.V. Low & Co. Ltd. AIR 1924 Cal. 796; Narsingh Prasad v. Dhanraj Mills ILR 21 Pat. 544; AIR 1943 Pat. 53; Union of India v. Firm Vishydha Ghee Vyopar Mandal ILR 1 All. 423. AIR 1951 All. 541; Sudhangsu Bhattacharjee v. Rupllekha Pictures AIR 1954 Cal. 281; Abdul Kadir v. Madhav Prabkhakar AIR 1962 SC 406 and Hub Power Company Ltd. v. Pakistan WAPDA through Chairman and others PLD 2000 SC 841 ref.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 3 & First Sched.‑‑‑Implied conditions of arbitration agreement ‑‑Applicability‑‑‑Number of Arbitrators‑‑‑Arbitration clause in agreement in question was silent as to the number of Arbitrators‑‑­Effect‑‑‑Same attracted the provisions of First Sched. to Arbitration Act, 1940, providing for implied conditions of arbitration agreement‑‑‑In pursuance to the first condition, the reference was to be made to a sole Arbitrator accordingly.

Muhammad Jamil v. Iqbal Ahmed PLD 1977 Kar. 886 ref.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 20(4)‑‑‑Referring matter to arbitrator without having arbitration agreement filed by the parties‑‑‑Validity‑‑‑Where contract and arbitration clause therein were admitted by the parties and the execution thereof was not in dispute, order for filing of the arbitration agreement was a mere formality and no prejudice was caused to either of the parties‑‑‑Matter was rightly referred to the arbitrator in circumstances.

Abbas Ali, Addl. A.‑G. with Suleman Habibullah, A.A.‑G. for Appellants.

Safdar Baig for Respondents.

2003 C L C 189

[Karachi]

Before Shabbir Ahmed, J

Mst. RUKHSANA TABASSUM SHAIKH ‑‑‑Plaintiff

Versus

KAZIM IMAM JAN and others‑‑‑Respondents

Suit No. 515 of 1993, decided on 15th January, 2001.

(a) Res judicata‑‑‑

‑‑‑‑Principle of‑‑‑Object and scope‑‑‑Principle is based on the need of giving a finality to judicial decisions‑‑‑Principle of res judicata says that once a res judicata, it should not be adjudged again‑‑‑Primarily the principle applies as between past litigation and future litigation‑‑‑When a matter whether on a question of fact or on a question of law has been decided between two parties in final, either because no appeal has taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party would be allowed in a future suit or proceedings between the same parties to canvass the matter again‑‑‑Principle of res judicata applies also as between the two stages in the same litigation to this extent that a Court whether the Trial Court or a higher Court having at an earlier stage decided a matter in one way does not allow the parties to re‑agitate the matter again at a subsequent stage of the proceedings.

Arjun Singh v. Mohindra Kumar and others AIR 1994 SC 993 ref.

(b) Res judicata‑‑‑

‑‑‑‑Principle of‑‑‑Applicability‑‑‑Interlocutory order‑‑‑Scope‑‑­Interlocutory orders are of various kinds, some like orders of stay injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take‑‑‑Such orders do not in that sense, decide in any manner the merits of the controversy in issue in the suit and do not put an end to it even in part‑‑­Interlocutory orders are capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge‑‑‑Interlocutory orders, as do not impinge upon the legal rights of parties to the litigation, the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the Court would' be justified in rejecting the same as an abuse of the process of Court.‑‑­[Interlocutory order].

Arjun Singh v. Mohindra Kumar and others AIR 1994 SC 993 ref.

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

‑‑‑‑S. 11 & O. XXXIX, Rr. 1, 2‑‑‑Interim injunction ‑‑‑Res judicata, principle of‑‑‑Applicability‑‑‑Plaintiff's case was based on declaration of gift and mutation which was effected in favour of the plaintiff and was in violation of order passed earlier by High Court‑‑‑Defendants were in possession of the suit property at the time of gift/declaration of gift and no allegation of damage, alteration and addition was alleged by the plaintiff‑‑‑Contention of plaintiff was that the original documents were in her possession‑‑‑Validity‑‑‑Declaration of gift was void for want of possession‑‑‑when the original owner had denied the execution of power of attorney in favour of the plaintiff and had appointed one of the defendants as his attorney, then the possession of original documents did not make a prima facie case for grant of interim injunction in favour of the plaintiff‑‑‑Even otherwise if any change was effected in respect of the suit property during the proceedings, the principle of lis pendens would come into play as envisaged under the provisions of S.52 of Transfer of Property Act. 1882‑‑‑High Court declined to pass restraint order in favour of the plaintiff‑‑‑Application was dismissed in circumstances.

Muhammad Sharif for Plaintiff.

Sajjad Ali Shah for Defendants Nos. 3 and 4.

2003 C L C 200

[Karachi]

Before Wahid Bux Brohi, J

KAZIM IMAM JAN‑‑‑Plaintiff

Versus

MUHAMMAD JAWAID and 4 others‑‑‑Respondents

Civil Suit No. 493 of 2001, decided on 17th July, 2002.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 14‑‑‑Specific Relief Act (I of 1877), Ss.8, 35 & 42‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11 ‑‑‑Rejection of plaint‑‑‑Period of limitation, extension of‑‑‑Plea of proceedings before wrong forum‑‑­Direction of Supreme Court‑‑‑Effect‑‑‑Suit for possession, cancellation of document and declaration was filed by the plaintiff after 30 years‑‑­Earlier proceedings under rent laws were initiated and the matter went up to Supreme Court, where the Court directed the parties to approach Civil Court as the issue of title could not be deciced by Rent Controller‑‑‑Suit was filed in the light of the direction of Supreme Court‑‑‑Plaintiff contended that as the matter had been proceeded before wrong forum and the direction of Supreme Court had condoned the delay, therefore, the suit was within time‑‑‑Validity‑‑‑Order of Supreme Court provided guidance to the parties to seek redressal of their grievance in accordance Svith the law and so also the relevant Court was expected to decide the case in accordance with law‑‑‑Supreme Court had not extended the period of limitation enabling the party to prosecute a time‑barred claim relief which was absolutely not an issue before Supreme Court‑‑‑No party could be allowed to raise a presumption from an order of Supreme Court when something was not expressly observed or stated therein‑‑‑Vested rights were created on account of limitation in favour of opposite‑party, therefore, determination of such rights could not be subjected to presumptions and self‑conceited inferences‑‑‑Plaintiff had to face the consequences of limitation on the merits of his own case and could not seek refuge under the observations made either by the Supreme Court or even by High Court in its rent appellate jurisdiction‑‑‑Court, in order to extend benefit of S.14 of Limitation Act, 1908, for the purpose of exclusion of time, could exclude the time during which the plaintiff had been prosecuting with due diligence other civil proceedings whether in a Court of first instance or in a Court of appeal against the defendants when such proceedings were founded upon the same cause of action and the plaintiff had prosecuted in good faith in a Court which from the lack of jurisdiction or other cause of like nature was unable to entertain it‑‑‑Plaintiff was not entitled to exclusion of time of limitation within the meaning of S.14 of Limitation Act, 1908, and the suit was thus time‑barred‑‑‑Plaint was rejected in circumstances.

C.P.L.A. No. 287‑K of 2000; 1975 SCMR 304; 1982 SCMR 285 And Ghulam Ali v. Akhter PLD 1991 SC 957 ref.

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

‑‑‑‑S. 8‑‑‑Limitation Act (IX of 1908), Art. 142‑‑‑Recovery of possession of immovable property‑‑‑Limitation‑‑‑Plaintiff sought recovery of possession after 30 years‑‑‑Validity‑‑‑Relief of possession after 30 years was barred within the meaning of Art. 142 of Limitation Act, 1908 as the same provided a period of 12 years from the period of discontinuance of the possession‑‑‑Suit was barred by limitation in circumstances.

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

‑‑‑‑S. 42‑‑‑Limitation Act (IX of 1908), Art. 120‑‑‑Suit for declaration‑‑­Limitation‑‑‑Plaintiff was divested of his title through registered sale deed on 22‑11‑1972 and again in the year 1980 the property was gifted away to the defendant whereafter even mutation of gift was effected suit was filed to the year 2001, wherein the plaintiff sought declaration to the title‑‑Validity‑‑‑Declaration for title to property was barred by time within he purview of Art. 120 of Limitation Act, 1908.

S. Riaz Hussain Shah for Plaintiff.

Syed Sajjad Ali Shah for Defendants Nos. 1 to 4.

2003 C L C 215

[Karachi]

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

TRUSTEES OF PORT OF KARACHI‑ ‑Appellant

Versus

MUHAMMAD ATHAR HUSSAIN and another‑‑‑Respondents

High Court Appeal No. 51 of 1998,. heard on 8th October, 2002.

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

‑‑‑‑S. 1‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑‑Contributory negligence, plea of‑‑‑Defendant denied any negligence on its part and alleged contributory negligence on the part of the deceased‑‑‑Defendant admitted in evidence that while a number of persons had to cross the railway lines, neither protective measures even by way of construction of overhead bridge had been undertaken by the defendant nor there was anyone from the defendant to control the pedestrian traffic in order to avoid any incident or any warning sign was placed‑‑‑Effect‑‑‑No measures to prevent such incidents having been taken by the defendant, deceased could not be held to have acted negligently‑‑‑High Court declined to interfere with the judgment and decree passed by the Judge in Chambers of High Court ‑‑‑Intra‑Court Appeal was dismissed in circumstances.

Jawaid Farooqui for Appellant.

Nasir Maqsood for Respondents.

Date of hearing: 8th October, 2002.

2003 C L C 224

[Karachi]

Before Zia Perwez, J

GULSHAN‑E‑FAISAL COOPERATIVE HOUSING SOCIETY LIMITED‑‑‑Plaintiff

Versus

MUHAMMAD ARIF and others‑‑‑Defendants

Suit No. 1639 of 1999 and Civil Miscellaneous Application No.3083 of 2002, decided on 5th July, 2002.

Cooperative Societies Act (VII of 1925)‑‑‑-

‑‑‑S. 70‑A‑‑‑Sindh Buildings Control Authority Ordinance (V of 1979), S.20‑A‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11 ‑‑‑Plaint, rejection of‑‑‑Bar to jurisdiction of Civil Courts under S.70‑A, C. P. C.‑‑­Scope‑‑‑Dispute in the plaint related to creation of new plots, registration of sub‑lease without permission of the lessor and approval of building plan of the sub‑lessee by the Authorities‑‑‑Parties to suit did not fall within the purview of provisions of Cooperative Societies Act, 1925‑‑‑ Term of lease spelled out in the original deed called for consideration in view of the building bye‑laws‑‑‑Building Control Authority as well as Development Authority were parties to the proceedings‑‑‑Defendant filed application under O. VII, R.11, C.P.C. for rejection of the plaint in view of the bar contained in S.70‑A, C.P.C.‑‑‑Validity‑‑‑Matters were only to be decided after some evidence was adduced by the parties and the case was examined in the light of proper evidence‑‑‑Power to reject the plaint under the provisions of O. VII, R. 11, C.P.C. is a penal provision which is to be considered strictly after considering the statements made in the plaint in the light of law applicable‑‑‑As such the provision of .O.VIL R.11, C.P.C. cannot be resorted to unless conditions for exercise for such drastic power are fully satisfied‑‑‑High Court declined to reject the plaint in circumstances.

Muhammad Akhtar and others v. Abdul Hadi and others 1981 SCMR 878; Metro Cooperative Housing Society Limited v. Bonanza Garments Industries (Pvt.) Limited and 3 others 1996 MLD 593; N.E.D. University of Engineering and Technology v. Tari Ali and 2 others PLD 1993 Kar. 626 and Civil Aviation Authority, Karachi v. Data International (Data Baggage House), Karachi and 2 others PLD 1993 Kar. 700 distinguished.

Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 rel.

H.A. Rehmani for Plaintiff.

Muhammad Sharif for Defendant No. 1.

Date of hearing: 4th February, 2002.

2003 C L C 245

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

DIN MUHAMMAD QURESHI‑‑‑Petitioner

Versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑446 of 1997, decided on 22nd August, 2001.

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

‑‑‑‑S. 6(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Vacation of building for demolition‑‑‑Report submitted by Authority in Court showed that, ejectment notices had been issued to occupants of building before causing demolition, but occupants had not vacated the same‑‑‑In absence of occupancy certificate under S.6(2) of Sindh Buildings Control Ordinance, 1979, occupation of any part of building would be illegal‑‑‑No interim or final order protecting occupation of occupants of building had been passed by any Court‑‑‑Three months' time was given to Authority by the High Court to eject occupants of building, if necessary, by force and to perform its duties according to law.

Muhammad Muzaffarul Haq for Petitioner.

Hafiz‑ur‑Rehman Kardar for Respondent No.2.

Shahid Jamiluddin Khan for Respondent No.3.

2003 C L C 250

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafferi, JJ

RAZA HUSSAIN ‑‑‑Appellant

Versus

MUHAMMAD KHAN and others‑‑‑Respondents

High Court Appeal No.3 of 1974, decided on 19th November, 2001.

Specific Relief Act (I of 1877)‑‑‑-

‑‑‑‑S. 12‑‑‑Transfer of Property Act (IV of 1882), S.52‑‑‑Transfer of Property and Registration (Sindh Amendment) Act (XIV of 1939), S.18‑‑‑Civil Procedure Code (V of 1908), O.XXIII. R.3‑‑‑Suit for specific performance of contract of sale‑‑‑Compromise between the parties‑‑‑Subsequent transferee of suit land‑‑‑Entitlement of‑‑‑Suit having been dismissed, plaintiff filed appeal against dismissal order‑‑‑During pendency of appeal compromise was arrived at between the parties‑‑­Defendants having sold suit property to subsequent transferees, during pendency of suit said transferees were also arrayed as defendants in the suit‑‑‑Plaintiff had urged that subsequent sale of suit land in favour of subsequent transferees during pendency of suit was hit by doctrine of lis pendens envisaged by S.52 of Transfer of Property Act, 1882 and said subsequent transferees did not acquire any legal interest in the suit property‑‑‑Subsequent transferees had pleaded that they were bona fide purchasers of the property for value without notice of alleged agreement of sale executed in favour of plaintiff by defendants‑‑‑Said transferees had further claimed that they were not party to compromise arrived at between the plaintiff and defendants‑‑‑Subsequent transferees had further contended that by virtue of Transfer of Property and Registration (Sindh Amendment) Act, 1939 bar on transfer in terms of S.52 of Transfer of Property Act, 1882 was attracted only if notice of pendency of suit was registered under S.18 of Transfer of Property and Registration (Sindh Amendment) Act, 1939, but no such notice had been so registered‑‑­Oompromise arrived at between plaintiff and defendants was binding on ,hem, but subsequent vendees who wen; not parties to such compromise were entitled to contest suit on basis of their plea of being bona fide purchasers for value without notice.

Faisal Khalid Daudpota for Appellant.

G.M. Qureshi for Respondents Nos. 1(a), (c), 2 and 4.

2003 C L C 256

[Karachi]

Before Ghulam Rabbani and Anwar Zaheer Jamali, JJ

Syed ALI NAWAZ SHAH‑‑‑Petitioner

Versus

ELECTION TRIBUNAL‑I‑‑‑Respondent

Constitutional Petitions Nos.D‑1674, D‑1675 and Miscellaneous No.427 of 2002, decided on 30th September, 2002.

Representation of the People Act (LXXXV of 1976)‑‑‑--

‑‑‑‑S. 99(1‑A)(h)‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.25‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Rejection of nomination papers by Returning Officer on the ground that petitioner was convicted by Accountability Court on his plea of bargain‑‑‑Election Tribunal dismissed appeal filed by petitioner‑‑‑Validity‑‑‑Petitioner was. a convict and his conviction was deemed to be on the charge of corrupt practices, and his appeal challenging his conviction had also been , dismissed‑‑­Petitioner was, thus, disqualified to participate in election‑‑‑No illegality was found in concurrent findings of facts rendered by both the lower forums‑‑‑High Court dismissed Constitutional petition being not maintainable.

Abdul Ghafoor Mangi for Petitioner.

S. Zaki Muhammad, Dy. A.‑G. for Respondent.

Muhammad Sarwar Khan, Addl. A.‑G.

Date of hearing: 25th September, 2002.

2003 C L C 264

[Karachi]

Before Muhammad Mujeebullah Siddiqui and S.A. Sarwana, JJ

ZAKARIA and another‑‑‑Petitioners

Versus

DISTRICT JUDGE AND APPELLATE AUTHORITY LOCAL GOVERNMENT

and another‑‑‑Respondents

Constitutional Petition No.920 of 2001, decided on 24th May, 2001.

Sindh Local Government Elections Ordinance (X of 2000)‑‑‑--

‑‑‑‑S. 14(g)‑‑‑Sindh Local Government Elections Rules, 2000, R.18(4)‑‑­Election of Nazim‑‑‑Nomination Papers, rejection of‑‑‑Disqualification of candidate‑‑‑Returning Officer after scrutiny accepted the Nomination Papers of candidate and no objections were filed before Returning Officer either by opposing candidates or by any other person against such acceptance‑‑‑After acceptance of Nomination Papers, opposing candidate filed appeal under R.18(4) of Sindh Local Government Elections Rules. 2000 assailing acceptance of Nomination Papers of candidate on ground that candidate was employee of Sugar Mill and being so was debarred from contesting election and Appellate Authority rejected Nomination Papers of candidate on that ground‑‑‑Opposing candidate could not produce, evidence to establish that candidate was in employment of Sugar Mill within six months of filing of Nomination Papers‑‑‑Order rejecting Nomination Papers of candidate passed by Appellate Authority, was not sustainable on facts and, law‑‑‑Order of Appellate Authority was set aside and that of Returning Officer accepting Nomination Papers of candidate, was restored.

Moula Bux Khoso for Petitioner.

Ali Ahmad Junejo for Respondent No.3.

Abbas Ali, A.A.‑G. with Niaz Ali, Manager, Corporate Affairs, Sindh Sugar Corporation.

2003 C L C 272

[Karachi]

Before Zahid Kurban Alavi, J

MEHMOOD ALI ‑‑‑Plaintiff

Versus

K.D.A.‑‑‑Defendant

Suit No.994 of 1980, decided on 22nd September, 2000.

Specific Relief Act (I of 1877)‑‑---

‑‑‑‑Ss. 8, 12 & 42‑‑‑Suit for specific performance, declaration, and possession‑‑‑Suit plot was sold by defendant‑ Authority through public auction to the plaintiff‑‑‑Plaintiff deposited two instalments of sale price and balance amount was payable in two equal yearly instalments from the date of issuance of possession order by defendant‑‑‑Subsequently suit plot stood cancelled by decision of Court‑‑‑Plaintiff requested defendant Authority that he could be allotted another commercial plot of equal size in the same locality in place of plot sold to him‑‑‑Defendant instead advised plaintiff to apply for refund of amount already deposited by plaintiff‑‑‑Plaintiff had filed suit for specific performance, declaration possession and in alternate to allot another plot or for damages‑‑‑Held, plaintiff was entitled to suit plot and in case it had been cancelled .or disposed of by defendant‑Authority, then plaintiff was entitled to allotment of similar type of plot in the same scheme or in an identical scheme.

Plaintiff in person.

Muzaffar Imam for Defendant.

Date of hearing: 15th September, 2000.

2003 C L C 278

[Karachi]

Before Zia Pervaiz, J

AZIM KHAN through General Attorney‑‑‑Petitioner

Versus

MUHAMMAD HUSSAIN and 5 others‑‑‑Respondents

Constitutional Petitions Nos.S‑368, S‑369 and S‑370 of 2002, and Miscellaneous Application No.Nil of 2001, decided on 6th September, 2002.

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

‑‑‑Ss. 15 & 21‑‑‑Constitution of Pakistan (1973), Art.199‑‑­.Constitutional petition ‑‑‑Ejectment proceedings‑‑‑Concurrent findings of fact‑‑‑Interference by High Court in Constitutional jurisdiction ‑‑‑Scope‑‑Held: Scope of interference was very limited and confined only to ascertaining, whether Appellate Court (District Judge) had not flouted provisions of relevant statute or had failed to follow law relating thereto as laid down by superior Courts.

Muhammad Shareef v. Muhammad Afzal Suhail PLD 1981 SC 246 and Mrs. Anees Manzar Kazmi v. Mst. Amir Jehan Begum 1989 SCMR 235 ref.

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

‑‑‑S. 21(1‑C) [as amended by Sindh Rented Premises (Amendment) Ordinance (XIV of 2001)]‑‑‑Provisions of S.21(1‑C) of the Ordinance, whether directory or mandatory‑‑‑Non‑compliance of such provisions‑‑Effect‑‑‑Such provisions are directory in nature and not mandatory‑‑‑No penalty, adverse conclusion, inference or action has been provided against any party or regarding conduct of proceedings for non‑compliance thereof‑‑‑Such provisions are required to be complied with in letter and spirit‑‑‑Appellate Courts are expected to make an attempt to effect a compromise between parties‑‑‑Mere fact of not setting dispute by litigants or conduct of parties in not arriving at a compromise cannot render an order of Appellate Court illegal.

Niaz Muhammad v. Fazal Raqib PLD 1974 SC 134; Abdul Waheed v. Settlement Department 1999 CLC 470; Muhammad Ismail v. Haji Muhammad & Sons PLD 1978 Kar. 926; Syed Iftikhar Hussain Gilani v. Anwar Kamal Khan 1997 CLC 1724; Muhammad Sarwar v. Judge, Family Court No. 11, Sadiqabad 1999 CLC 1578; Farid‑un‑Nissa v. Chairman, Federal Land Commission, Rawalpindi PLD 1984 Kar. ‑199; Muhammad Sadiq Hussain v. Mst. Khursheed Fatima and another 1978 SCMR 130 and Bharoo v. Civil Judge/Family Judge and another 1985 CLC 806 ref.

Faiz Muhammad Qureshi for Petitioners.

Hakim Ali Siddiqui for Respondents Nos. 1 to 4.

2003 C L C 288

[Karachi]

Before Syed Zawwar Hussain Jafri, J

MUNAWAR ISANI and 4 others‑‑‑Applicants

Versus

BARKAT ISANI and 9 others‑‑‑Respondents

Civil Revision No.28 of 2002, decided on 6th August, 2002.

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

‑‑‑‑O. IX, Rr.2 & .4‑‑‑Dismissal' of suit in consequence of plaintiffs' failure to deposit publication charges for service of notice upon defendants living abroad‑‑‑Trial Court dismissed application for restoration of suit ‑‑‑Validity‑‑‑Trial Court had directed plaintiffs two times to deposit such cost, but instead of making compliance, they had kept on making applications for getting such orders, set aside or seeking extension of time to deposit publication charges and condonation of delay‑‑‑Publication of charges was required within time fixed, but due to non‑compliance of such direction by plaintiff to proceed the case to be decided on merits, Trial Court had no option, but to dismiss the suit‑‑­Direction given by High Court for decision of present suit within six months had already expired and plaintiffs had delayed the matter on one ground or the other‑‑‑Plaintiff had remained indolent to pursue the matter delinquently ‑‑‑Plaintiffs had not shown sufficient cause for setting aside impugned order‑-‑High Court dismissed revision petition in limine.

(b) Administration of justice‑‑‑-

‑‑‑‑ Cases should be decided on merits and not on technical grounds.

Gural Das M. Chhabria for Applicants.

Respondent No. 1 in person.

2003 C L C 300

[Karachi]

Before Ghulam Rabbani, Anwar Zaheer Jamali and S. Ali Aslam Jafri, JJ

Pir MAZHAR‑UL‑HAQUE‑‑‑Petitioner

Versus

ELECTION TRIBUNAL‑I‑‑‑Respondent

Constitutional Petition No. 1673 and Miscellaneous Application No.4271 of 2002, decided on 25th September, 2002.

Representation of the People Act (LXXXV of 1976)‑‑‑-

‑‑‑‑S. 99(1‑A)(h)‑‑‑Conduct of Elections Order [Chief Executive's Order No.7 of 2002], Art.8D‑‑‑Ehtesab Act' (IX of 1997). S.4‑‑‑Nomination papers, rejection of ‑‑‑Ehtesab Court had convicted petitioner in two Ehtesab References on the charge of corruption‑‑‑Supreme Court in appeals filed against such conviction and sentences had suspended only sentence of imprisonment of petitioner‑‑‑Petitioner was, thus, not qualified to be elected as member of Majlis‑e‑Shoora or any Assembly in view of Art.8D of Conduct of Elections Order, 2002 and S.99(1‑A)(h) of Representation of the People Act, 1976‑‑‑Rejection of nomination papers of petitioner by Election Tribunal was, held, to be legal.

Abdul Ghafoor Mangi for Petitioner.

2003 C L C 310

[Karachi]

Before Amir Hani Muslim and Maqbool Baqar, JJ

MOULA BUX‑‑‑Petitioner

Versus

MUHAMMAD RAHIM‑‑‑Respondent

Constitutional Petition No.D‑224 and Miscellaneous Application No. 1068 of 2002, decided on 3rd October, 2002.

Sindh Local Government Elections Rules, 2000‑‑‑-

‑‑‑‑Rr. 40(6) & 70‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Recounting of votes‑‑‑Order of Election Tribunal for recounting of votes without recording any evidence‑‑‑Validity‑‑­Scrutiny of each ballot paper by Election Tribunal in order to examine and verify as to whether the Presiding Officers of all polling stations had correctly counted ballot‑papers or not, would be entirely in the interest of justice‑‑‑Election Tribunal could pass such an order without recording any evidence‑‑‑Tribunal had yet to pass final order on the basis of proposed recount‑‑‑Impugned order was of interim nature, which could not be challenged by invoking Constitutional jurisdiction‑‑‑Recount would not prejudice either party‑‑‑Impugned order was in consonance with Election Laws‑‑‑High Court dismissed Constitutional petition in limine.

Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 fol.

Iftikharuddin v. District Judge, Bahawalpur and others 2002 SCMR 1523; Dr. Liaquat Ali and another v. District Returning Officer and others 2002 SCMR 1632 and Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Laskhari Khan Riasanand 11 others 1998 SCMR 1597 ref.

Jhamat Jethanand for Petitioners.

Salahuddin Panhwar for Respondents Nos.1 and 2.

Masood A. Noorani, Addl. A.‑G.

2003 C L C 414

[Karachi]

Before S.A. Rabbani, J

ZAHEER AHMED ---Appellant

Versus

MUHAMMAD AHMED and others---Respondents

First Rent Appeal No.210 of 1999, decided on 12th March, 2001.

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

----Ss. 15(2)(vii) & 21---Bona fide personal need of landlord---Landlady who filed ejectment application having died during pendency of the proceedings, attorney of legal heir of deceased filed amended ejectment application which was accepted by the Rent Controller directing tenant to hand over vacant' possession of shop to the applicant---Brother of deceased landlady in his application before Appellate Authority had prayed to treat the power of attorney executed in favour of attorney of legal heirs of deceased as cancelled---Tenant had also moved application with a prayer to set aside ejectment order against him as he had surrendered possession of shop in dispute to the brother of deceased and had obtained fresh tenancy from him under the agreement and that ejectment order passed against him had become infructuous---Validity--­If tenant had surrendered possession of shop in violation of ejectment order passed by Rent Controller, he was not entitled to take its benefit in appeal filed against order of Rent Controller---Since tenant- had sought decision of appeal, appeal was dismissed as the same itself had become infructuous because tenant/appellant had surrendered possession of the shop in dispute to one of respondents/landlords in compliance with order of Rent Controller, it was not the impugned order, but appeal itself that had become infructuous.

B.N. Bangash for Appellant.

Miss Hafiza Usman for Respondents.

Date of hearing: 28th January, 2001.

2003 C L C 416

[Karachi]

Before Syed Saeed Ashhad, C. J. and Musheer Alam, J

Messrs MUSLIM COMMERCIAL BANK LIMITED---Appellant

Versus

TAHIR EDIBLE OIL (PVT.) LTD. and others---Respondents

High Court Appeals Nos.28 and 41 of 2001, decided on 6th December, 2001.

Jurisdiction---

---- once challenge to jurisdiction was raised, then before embarking on merits or taking any decision in the matter, Court as a rule of propriety, should first decide question of its jurisdiction---Said rule of propriety was fully applicable in all cases where challenge to jurisdiction was posed and in such a situation it was incumbent upon the Court to first advert to question of jurisdiction---Only when Court would come to a conclusion that it had jurisdiction, then Court could proceed to pass appropriate order.

Qatar Airways PLC v. ANZ Grindlays Bank 2000 'CLC 1455; Mst. Yasmeen Nizhat v. National Bank of Pakistan PLD 1998 SC, 391 and Asadullah Rashid v. Muhammad Munir 1998 SCMR 2129 ref.

Sohail Muzaffar for Appellant.

Lari & Co. for Respondents.

Date of hearing: 28th September, 2001.

2003 C L C 607

[Karachi]

Before Shabbir Ahmed, J

PAKISTAN EMPLOYEES' COOPERATIVE HOUSING SOCIETY‑‑‑Plaintiff

Versus

Messrs AWAMI CONSTRUCTIONS CO. LTD, and another‑‑‑Defendants

Judicial Miscellaneous No.61 of 1987, decided on 29th August, 2002.

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

‑‑‑‑S. 12(2) [as inserted by Code of Civil Procedure (Amendment) Ordinance (X of 1980)]‑‑‑Order/decree obtained by fraud, misrepresentation and want of jurisdiction, setting aside of‑‑­Providing remedy to aggrieved person by filing application in same proceedings instead of filing separate suit‑‑‑Background and purpose of enacting subsection (2) of S.12, C.P.C. elaborately stated.

Forlcoomany Dasi v. Woody Chunder Biswas ILR 25 Cal. 649; Barhandas Parsad v. Banarsi Parsad (1906) 3 CLJ 119; Mst. Gulbkoer v. Bashah Bahadur 13 CWN 1197; J.G. Galstaur v. Pramatha Nath Roy AIR 1929 Cal. 470; Grindlays Bank Ltd. v. Murree Bravery Co. Ltd. PLD 1995 Lah. 745 and Muhammad Yousaf v. Tajammul Hussain PLD 1972 Lah. 565 ref.

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

‑‑‑‑S. 12(2)‑‑‑Term "person" used in S.12(2), C.P.C.‑‑‑Not confined to parties to proceedings‑‑‑Such term would include any person, who was aggrieved by decree, though he might or might not be a party to such proceedings.

Munir Ahmad Khan v. Samiullah Khan and another 1987 SCMR 171; Allah Wasaya and 5 others v‑. Irshad Ahmad and 4 others 1992 SCMR 2184 and Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662 ref.

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

‑‑‑‑S. 12(2) [as inserted by Code of Civil Procedure (Amendment) Ordinance (X of 1980) w.e.f. 26‑3‑1980]‑‑‑Limitation Act (IX of 1908); Art.95‑‑‑Application for setting aside decree‑‑‑Limitation‑‑‑Period of limitation provided for setting aside a decree had already expired‑‑‑New remedy provided under S.12(2), C.P.C., could not give a fresh limitation for such application.

Hitendra Singh v. Ram Eswar AIR 1925 Pat. 625 ref.

(d) Arbitration Act (X of 1940)‑‑‑--

‑‑‑‑Ss. 21 & 24‑‑‑Arbitration in suit‑‑‑Term "matters in difference between them" used in S.24 of the Arbitration Act had wider connotation than the term "any matter in difference between them in the suit" used in S.21 of the said Act.

Jummo Khan v. Muhammad Khan 1973 SCMR 289; Pars Ram Gangadas v. Topandas Dholandas AIR 1928 Sindh 81 and Muhammad Ramzan v. Nazir Ahmed 1979 CLC 95 ref.

(e) Islamic Law‑‑‑

‑‑‑‑ Mosque (Masjid)‑‑‑Madrassa‑‑‑Educational institution to impart religious instructions did not have the same importance as a "mosque"‑‑­Where construction of mosque and its 'user was unathorised and not religious, then construction of unauthorized Madrassa would not create any right or interest in the Anjuman (body of persons).

Anjuman Arain, Behra v. Abdul Rashid and 5 others PLD 1973 Lah. 500 fol.

(f) Islamic Law‑‑‑

‑‑‑‑ Mosque (Masjid)‑‑‑Place at which Namaz offered, whether attains status of "Masjid"‑‑‑Society had erected 20/25 years ago a platform on a portion of its office premises for purpose of offering facilities for its employees and members to offer Namaz thereat‑‑‑Applicant (Anjuman Masjid‑e‑Akbar) claimed right in respect of such platform ‑‑‑Validity‑‑­Namaz could be offered at any place, but such place could not be treated as "Masjid", unless owner dedicated such land or same had been purchased from its owner‑‑‑Applicant could not claim to own the portion or any part of such platform.

Sh. Nanki Devi v. Habib Ullah and others AIR 1936 Lah. 876 ref.

Khalilur Rehman for Applicant.

Nemo for Plaintiff.

Iqbal Kazi for Defendants.

Date of hearing: 15th August, 2002.

2003 C L C 627

[Karachi]

Before Sabihuddin Ahmad and S. Ali Aslam Jafri, JJ

Sh. MUHAMMAD NASEEM and others‑‑‑Petitioners

Versus

AL‑MURTAZA SOCIETY and others‑‑‑Respondents

Constitutional Petitions Nos.D‑615 of 1991 and 632 of 1993, decided on 31st October, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199(1)(a)(i)‑‑‑Constitutional petition‑‑‑Writ of prohibition and mandamus‑‑‑Issuance of‑‑‑Lessees on the plot leased out to them which allegedly was‑ meant for residential purpose, had constructed building where they proposed to open a school‑‑‑Petitioners had sought direction to the Authorities to carry out their statutory duties to cancel building plan on the plot and restrain the respondent from taking steps to start school or any educational institution and to close down the same, if already opened‑‑‑Plot in question had been converted from residential to amenity plot for being used as school/educational institution validly and lawfully‑‑‑Under one of the clauses of lease deed a residential plot could not be used for any other purpose, unless such express permission was granted in writing by the lessor and in the present case such necessary permission had been accorded by the lessor as well as the Competent Authority‑‑‑Evidence on record ,had shown that a number of educational institutions/schools and colleges were functioning in the vicinity‑‑­School, in question being a girls school grievance of petitioners that their privacy 'was being adversely affected and that their Pardanasheen ladies were facing inconvenience, was devoid of any force‑‑‑Necessary permission having been accorded for conversion of plot from residential to amenity (plot) and school was being run in larger interest of persons residing in neighbourhood, Constitutional petition, held, was without any substance and was liable to be dismissed.

Khalil ‑ur‑Rehman for Petitioners.

Ms. Sana Minhas (in Constitutional Petition No.D‑632 of 1993) and Tufail H. Ebrahim (in Constitution Petition No.D‑615 of 1991) for Respondent No. 1.

Sarwar Khan Addl. A.‑G. for Respondent No.4.

Syed Jamil Ahmed for Respondent No.5.

Date of hearing: 31st October, 2001.

2003 C L C 632

[Karachi]

Before Shabbir Ahmed, J

Mst. SEEMA and others‑‑‑Plaintiffs

Versus

Messrs MILLENNIUM DEVELOPERS and others‑‑‑Respondents

Suit No. 1249, and Civil Miscellaneous Applications Nos.6801, 6965 and 8308 of 2001, heard on 8th March, 2002.

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

‑‑‑‑O. I, R.8‑‑‑Representative suit, filing of‑‑‑Prescribed conditions‑‑­Underlying principle incorporated in provisions of O.I, R.8, C.P.C.‑‑­Proper stage for obtaining leave. of Court‑‑‑Different circumstances stated.

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

‑‑‑‑O. I, R.8‑‑‑Representative suit‑‑‑Obtaining permission of Court under O.I, R.8, C.P.C. by person suing or defending the suit is mandatory otherwise his action would have no binding effect upon person(s), whom he had chosen to represent.

Shri Ram Krishna Mission v. Parmanand and others AIR 1977 All. 421; Mukaramdas v. Chhagan Kisan AIR 1959 Bom. 491; Ghulam. Muhammad and another v. Irshad Ahmed and another PLD 1982 SC 282; Khukutty Kunhali's v, Pakkath Enu AIR 1965 Ker. 2001; Muthaukaruppa v. Appavoo AIR 1943 Mad. 161 and Kalyan Singh v. Chhote and others AIR 1990 SC 396 ref.

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

‑‑‑‑O. I, R. 8‑‑‑Representative suit‑‑‑Claim for damages‑‑­Representative suit could be filed with relief of damages amongst other reliefs.

Odia Goundar and another v. Velandi Goundar and others AIR 1955 Mad. 281 ref.

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

‑‑‑‑S. 91‑‑‑Public nuisances, suits relating to‑‑‑Provisions of S.91, C. P. C.‑‑‑Applicability‑‑‑High Court desired the need to amend S.91 in the line of Indian provisions relating to public nuisances to facilitate person interested in public interest litigation.

When original provisions of section 91, C.P.C. as applicable to Courts in Pakistan are compared with provisions of section 91, C.P.C. applicable to Indian Courts there is noticeable departure, whereby in addition to Advocate‑General, two or more persons can file a suit with leave of Court instead of the permission from the Advocate‑General, not only in respect of nuisance, but for other wrongful acts affecting or likely to affect the public. Therefore, section 91, requires amendment in the line of Indian provisions to facilitate the person interested in public interest litigation.

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

‑‑‑‑S. 91‑‑‑Sindh Buildings Control Ordinance (XVII of 1979), S.6(2)‑‑­Easements Act (V of 1882), S.15‑‑‑Suit relating to public nuisance filed without permission of Advocate‑General‑‑‑Maintainability‑‑‑Construction of high rise building consisting of ground floor plus loft and seventeen upper floors‑‑‑Plaintiffs being residents of adjoining building alleged blockade of their easement rights of air, light and privacy apart from public nuisance in shape of pollution, traffic jam and shortage of amenities‑‑‑Held: objection as to maintainability of suit on account of bar under S.91 would not be valid‑‑‑Plaintiffs could maintain cause without seeking permission of Advocate‑General.

Kajjam Lakshminarasamma v. Tanniru Seshayya and others AIR 1951 Mad. 491 and Naz Shaukat Khan v. Mrs. Yasmin R. Minhas 1992 CLC 2540 ref.

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

‑‑‑‑S. 91‑‑‑Easement rights, such as light, air and right of privacy‑‑‑Such rights fall under definition of nuisance‑‑‑Suit in respect of such rights could be brought before Court without recourse to provisions of S.91, C.P.C.

Kajjam Lakshminarasamma v. Tanniru Seshayya and others AIR 1951 Mad. 491 and Naz Shaukat Khan v. Mrs. Yasmin R. Minhas 1992 CLC 2540 ref.

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

‑‑‑‑O. I, R.8 & S.99‑‑‑Representative suit‑‑‑Obtaining leave of Court to sue in representative capacity‑‑‑Mandatory‑‑‑Failure to comply with such mandatory requirement could not be condoned under S.99, C.P.C.‑‑­Proper course and stage for obtaining such permission stated.

The leave to sue in a representative capacity, under Order I, Rule 8, C.P.C., is mandatory.

The proper course is to obtain permission before the suit is instituted, but if that is not done, the Rule does not forbid leave being granted afterwards. The Rule is mandatory and that failure to comply with its requirement cannot be condoned under section 99, nevertheless, if the suit is laid in representative character, leave can be granted under this Rule even at the stage of appeal, but even then all the formalities prescribed in the Rule should be observed.

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

‑‑‑‑O. I, R.8‑‑‑Permission to sue in representative capacity, grant of Plaint contained community interest affecting neighbours as well as general public‑‑‑Court granted permission to plaintiffs to sue in representative capacity.

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

‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Interim injunction, grant of‑‑‑Pre­conditions‑‑‑Prima facie case‑‑‑Balance of convenience‑‑‑Irreparable loss likely to be caused‑‑‑Such pre‑conditions must be in favour of plaintiff.

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

‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Sindh Buildings Control Ordinance (XVII, of 1979), S.6(2)‑‑‑Karachi Building and Town Planning Regulations, 1979, Regln. 29(3)‑‑‑Easements Act (V of 1882), S.15‑‑‑Interim injunction against construction of high‑rise building consisting of more than seventeen floors‑‑‑Entitlement‑‑‑Plaintiffs as residents of adjoining building had alleged blockage of their easementary rights of air, light and privacy apart from public nuisance in shape of pollution, traffic jam and shortage of amenities‑‑‑One of the plaintiffs and another person had filed Constitutional petition against defendant‑construction company, K.B.C.A., K.E.S.C. and Sui Southern Gas Company in respect of the same project and Division Bench of the High Court had negated all the grounds presently 'taken in support of application for interim injunction with reference to provisions of Sindh Buildings Control Ordinance and Karachi Building and Town Planning Regulations‑‑‑Plaintiffs, in such circumstances, could not be said to have prima facie case‑‑‑Plaintiffs had claimed easement rights of light, air and privacy in terms of S.15 of Easements Act, 1882, which attached conditions to such right and which being of fact needed trial‑‑‑Without proving such easements right, merely on basis of violation thereof, defendants could not be restrained from raising construction being raised strictly under approved plan‑‑­Construction so raised would be subject to plaintiffs' such right to be proved at trial‑‑‑Any construction raised by defendants would be at their risk and costs‑‑‑Court restrained defendant‑construction company from handing over possession in violation of S.6(2) of Sindh Buildings Control Ordinance, 1979‑‑‑Application for interim injunction was allowed with such observations.

Zhehla Zia v. WAPDA PLD 1994 SC 693; Continental (Pvt.) Ltd. v. Government of Sindh 1996 CLC 417; Excel Builders v, Ardeshir Cowasjee PLD 1990 SC 2089; Naz Shaukat v. Yasmeen 1992 CLC 2540; Abdul Razaq v. K.B.C.A. PLD 1994 SC 512 and Multiline Associates v, Aredeshir Cowasjee PLD 1995 SC 421 ref.

C. P. No. 1775 of 2001 fol.

(k) Precedent‑‑‑

‑‑‑‑Single Bench was bound by opinion expressed by Division Bench except on point, which had not been raised.

Naeemur Rehman for Plaintiffs.

Farogh Naseem for Defendants.

Date of hearing; 8th March, 2002.

2003 C L C 649

[Karachi]

Before Ata‑ur‑Rehman, J

Messrs H.A. RAHIM & SONS (PVT.) LTD. ‑‑‑Plaintiff

Versus

PROVINCE OF SINDH and another‑‑‑Defendants

Suit No.764 of 1999, decided on 27th May, 2000.

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

‑‑‑‑S. 42‑‑‑Sindh Finance Act (XIII of 1994), S.9 [as amended by S.5 of Sindh Finance Act (XV of 1996)], & S.10‑‑‑Sindh Development and Maintenance of Infrastructure Fee Rules, 1994, R.3‑‑‑Civil Procedure Code (V of 1908), O.VII, R.7 & S.9‑‑‑Suit for declaration ‑‑‑Vires of Legislation levying a fee ‑‑‑Jurisdiction of Civil Court‑‑‑Plaintiff had challenged vires of Ss.9 & 10 of Sindh Finance Act, 1994 whereby Government had imposed a levy known as `infrastructure fee'‑‑‑Plaintiff had called in question Sindh Development and Maintenance of Infrastructure Fee Rules, 1994 in particular R.3 thereof and other rules, orders, notifications and demands issued by Government in respect thereof‑‑‑Maintainability of suit was objected to by defendants contending that validity of laws could not be tested by a Civil Court in a civil suit filed under S.9 of C.P.C. as correct remedy for challenging any law would be a Constitutional petition under Art.199 of Constitution of Pakistan‑‑‑Validity‑‑‑Section 9, C.P.C. had clearly stated that a Civil Court had jurisdiction to try all suits of civil nature unless expressly or impliedly barred‑‑‑No bar either in C.P.C. or in Constitution of Pakistan existed with regard to filing or maintainability of a civil suit challenging the vires of law‑‑‑Challenging the vires of law would be a matter of civil nature which would come squarely within the parameters of S.9, C.P.C.

PLD 1996 Sindh Statutes 135; PLD 1996 Sindh Statutes 435; Hamid Hussain v. Government of Pakistan 1974 SCMR 356; Malik Khizar Hayat Tiwana v. Punjab Province PLD 1955 Lah. 88; Chief Administrator Auqaf v. Pir Rashidud Daula PLD 1961 Lah. 993 ; Pakistan Investment Limited v. Pakistan PLD 1980 Kar. 275; Mondi's Refreshment Rooms and Bars v. Islamic Republic of Pakistan PLD 1983 Kar. 214; Hirjina & Co. v. Islamic Republic of Pakistan 1993 SCMR 1342; Mirpurkhas Sugar Mills Limited v. Consolidated Sugar Mills PLD 1987 Kar. 225; Arif Builders and Developers v. Government of Pakistan PLD 1997 Kar. 627; Mulji Haridas, v. Ibrahim Rahimtullah AIR 1932 Born. 166; Bhaira Bendara Narayan Bhup v. State of Assam AIR 1953 Asam 162; United Provinces v. Mst. Atiqa Begum AIR 1941 FC 16: PIDC v. Pakistan 1992 SCMR 891,; Syedna Taher v. State of Bombay AIR .1958 SC 253 and Shankar Roy Chowhdryv. HEA Cotton AIR 1925 Cal. 373 ref.

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

‑‑‑‑S. 42‑‑‑Sindh Finance Act (VIII of 1994), S.9 [as amended by S.5 of Sindh Finance Act (XV of 1996)]‑‑‑Civil Procedure Code (V of 1908), S.9 & O.VII, R.7‑‑‑Suit for declaration‑‑‑Maintainability‑‑‑Plaintiff in substance had claimed that it was not obligatory to pay a certain amount of money as fee under an alleged invalid law and had claimed that it was entitled‑ to be dealt with in accordance with Constitution, which was a valuable property right as a citizen of the country, though intangible in nature‑‑‑Traditionally the Courts had construed S.42 of Specific Relief Act, 1877 very strictly resulting in non‑suiting litigants on mere technicality‑‑‑Courts had developed techniques to defeat the technicalities and provide substantial justice to litigants through the process of construction and interpretation of law‑‑‑Where declaration sought by plaintiff fell outside the purview of S.42 of Specific Relief Act, 1877, same could be governed by the general provisions of C.P.C. like S.9 or OVII, R.7 thereof‑‑‑Section 42 of Specific Relief Act, 1877 was not exhaustive of the circumstances in which declaration was to be given‑‑­ Declaration could well be given in circumstances not covered by S.42 of Specific s Relief Act, 1877 in which case general provisions of law would give the declaration sought‑‑‑Court in substance had to see whether the plaintiff in facts and circumstances of case should or should not be granted a declaration‑‑‑Suit filed by plaintiff, in circumstances, was maintainable.

Muhammad Farooq Khan v. Sulaiman A.G. Punjurani PLD 1979 Kar. 88; T.J. Trust Bombay v. CIT (Appeal) PLD 1958 SC (Ind.) 140; Ahmed Arif v. CWT (1969) 2 CC 471; Ahmed Ali v. The State PLD 1957 Lah. 207; Muhammad Ilyas Hussain v. Cantonment Board PLD 1976 SC 785; Hyderabad Municipal Corporation v. Fateh Jeans Ltd. 1991 MLD 284; ICP v. S. Ahmed Sarwana, Advocate 1987 MLD 2442; Shahid Mahmood v. KESC 1997 CLC 1936; Robert Fischer v. Secretary of State of India ILR 22 Mad. 270; Shri Krishina Chandra v. Mahabir Parsad AIR 1933 All. 488; Vangipuram Venkatacharyulu v. Shri Rajah Vasireddi AIR 1935 Mad. 964; Desu Reddiar v. Srinivasa Reddi AIR 1936 Mad. 605; Sisir Kumar Chandra v. Smt. Monorama Chandra AIR 1972 Cal. 283; Ramasraghava Reddy v. Sheshu Reddy AIR 1967 SC 436; Salimulldh Beg v. Motia Begum PLD 1959 Lah. 429 and Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 ref.

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

‑‑‑‑S. 42‑‑‑Sindh Finance Act (XIII of 1994), S.9 [as amended by S.5 of Sindh Finance Act (XV of 1996)]‑‑‑Sindh Development and Maintenance of Infrastructure Fee Rules, 1994, S.3‑‑‑Constitution of Pakistan (1973), Arts.141, 142, 151 & Fourth Sched., Federal Legislative List, Entry No.27‑‑‑Suit for declaration‑‑‑Levy of Infrastructure fee‑‑‑Validity‑‑­Plaintiff had challenged levy of infrastructure fee charged on goods entering or leaving the Province‑‑‑Article 151(3)(a) of Constitution of Pakistan prohibited imposition of any restriction by Provincial Legislation/Executive order in relation to inter‑Provincial trade, i.e. movement of goods from one Province to another and any fiscal measure being a tax or a fee would amount to a restriction on such inter ­Provincial trade‑‑‑Impugned levy being a fee directly imposed on movement of goods from one Province to another, would militate against Art.151(3)(a) of the Constitution‑‑‑Any mode of taxation/fiscal measure would impair freedom of trade, commerce and intercourse because tax was a restriction on enjoyment of property and a deterrent against free flow of trade‑‑‑Impugned levy, though a fee, was directly chargeable on the exit or entry of goods from/in the Province‑‑‑Fact that basic character of said levy was a fee, was absolutely irrelevant since any fiscal measure, whether a fee or a tax, would hamper free flow of trade‑‑‑Even otherwise since power to legislate in relation to inter‑Provincial trade could only be resorted to by Federation; any legislation on inter‑provincial trade, could be resorted to by Federation‑‑‑Impugned levy which was fee imposed by Provincial legislation on movement of goods from one Province to another was violative of Item 27 of Federal Legislative List read with Art. 142 of Constitution of Pakistan and was unconstitutional‑‑‑Impugned levy of fee could only be recovered if commensurate services were' provided, but in the present case no services relatable to said levy had been provided‑‑‑Suit was decreed and all orders, notifications, rules, demands notices and drives for recovery of said fee, were declared to be unconstitutional, ultra vires, unlawful, void ab initio and of no legal effect‑‑‑Permanent injunction was also granted restraining defendants from effecting recoveries under provisions of law which had been declared to be ultra vires.

Mir purkhas Sugar Mills Ltd. v. District Council, Tharparkar 1990 MLD 317; Mirpurkhas Sugar Mills Ltd. v. District Council, Tharparkar 1991 MLD 715; Saphire Textile v. Government of Sindh PLD 1990 Kar. 402; Asia Flour Mills v. Director of Food PLD 1996 Lah. 133; Star Flour Mills v. Province of Punjab PLD 1996 Lah. 687; Abdul Majid v. Province of East Pakistan PLD 1960 Dacca 502; Nishat Tek Ltd. v. Federation of Pakistan PLD 1994 Lah. 347; Collector of Customs v. Sheikh Spinning Mills 1999 SCMR 1402; Excise and Taxation Officer v. Burmah Shell. 1993 SCMR 338; Pakistan Tobacco Company Ltd. v. Federation of Pakistan 1999 SCMR 382; and Buxa Dooars Tea Company Ltd. and others v. State of West Bengal and others 1989 SCC (Tax) 394 ref.

Dr. Farogh Naseem for Plaintiff.

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

Zia‑ul‑Haq Makhdoom Amicus curiae.

2003 C L C 670

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

MUHAMMAD AMANULLAH KHAN and 346 others‑‑‑Petitioners

Versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑221 of 2002, heard on 23rd August, 2002.

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

‑‑‑‑S. 19(4)‑‑‑Constitution of Pakistan (1973), Arts.4, 24 & 199‑‑­Constitutional petition‑‑‑Encroachment on Government land‑‑‑Petitioners who claimed to be inhabitants of various pieces of land situated in the area had constructed Katcha and Pacca houses there‑‑‑Petitioners having apprehended demolition of their properties in violation of provisions of Arts.4 & 24 of Constitution of Pakistan had prayed that proposed action of Authority to demolish their properties be declared without lawful authority and of no legal effect‑‑‑Case of petitioners was not covered under Sindh Katchi Abadis Act, 1987, but they were encroachers who had raised construction on Government land without any right, title or ownership‑‑‑Constructions raised by petitioners were in violation of Rules and Laws and 'without approval of construction plan from the Competent Authority‑‑‑Petitioners who had not been able to establish any legal right or title in the property in question and being encroachers had already enjoyed undue benefit of their illegal and unauthorized possession‑‑‑Said property was being taken over not for benefit any individual, but was being taken for construction of a very important and useful bridge for public purpose by Authority concerned‑‑‑Constitutional petition meriting no consideration was dismissed.

Fazle Ghani Khan for Petitioner No. 1.

Raja Qureshi, A.‑G., Sindh.

Manzoor Ahmed for Respondents Nos.2, 4,6 and 7.

S. Jamil Ahmad for Respondent No.8.

Dates of hearing: 20th March; 16th April; 18th June; 13th, 20th and 23rd August, 2002.

2003 C L C 682

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

JAMIA MASJID MUHAMMADIA AND MADRASSA FAIZIA‑‑‑Petitioner

Versus

SHAMSHER KHAN and others‑‑‑Respondents

Civil Revision Application No.73 of 2001, decided on 28th October, 2002.

Specific Relief Act (I of 1877)‑‑‑--

‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), Ss 92 & O.VII, R.11‑‑‑Suit for declaration and permanent injunction‑‑‑Rejection of plaint‑‑‑Plaint was concurrently rejected by Trial Court as well as Appellate Court and suit was dismissed holding that suit fell within the ambit of S.92, C.P.C. and permission of Advocate General was necessary for filing the suit and that suit was not maintainable owing to non‑compliance with provisions of S.92, C.P.C.‑‑‑Validity‑‑‑Suit under S.92, C.P.C. was of special nature which proposed the existence of a public trust of a religious or charitable character‑‑‑Such suit could proceed only on the allegations that there was a breach of such a trust or that directions from the Court were necessary for administration of Trust‑‑‑None of reliefs claimed by plaintiff fell within ambit of S.92, C.P.C. as declaration which was sought by the plaintiffs could not possibly attract applicability of S.92, C.P.C.‑‑‑Non‑compliance of S.92, C.P.C. in the present case would not affect the maintainability of the suit‑‑‑Two Courts, in circumstances, had illegally and wrongly found that the' suit fell within the ambit of S.92, C.P.C.‑‑‑Concurrent orders and judgments passed by two Courts, were set aside in revision by High Court and case was remanded to Trial Court to decide on merits.

Trustees of Jamia Masjid Haft Sultan v. Zakir Hussain and others Civil Appeal No.12/K of 1992; Herendranath Bhatacharia and others v. Kaliramdas and others AIR 1972 SC 246 and 2000 CLC 1182 ref.

Mahmood Ahmed Khan for Petitioner.

Muhammad Aslam Chaudhry for Respondents.

Date of hearing: 17th October, 2002.

2003 C L C 695

[Karachi]

Before Sabihuddin Ahmed and Zahid Kurban Alvi, JJ

Mst. MALAK SULTAN and others‑‑‑Plaintiffs

Versus

TWIN STAR (PVT.) LTD ‑‑‑‑Respondent

High Court Appeal No.243 of 1997, decided on 26th January, 2001.

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

‑‑‑‑S. 8‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & O.VII, R.11‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Suit for possession, mesne profits and compensation.‑‑Interim relief, grant of‑‑­Plaintiffs were legal heirs of partners of a firm which subsequently was formed as a limited company‑‑‑Said company having suffered financial difficulty and having become indebted to Bank, application was filed for winding up of company which was granted‑‑‑Pending winding up proceedings, company and defendant despite being fully aware of pending of winding up proceedings, entered into an agreement of lease of company for three years‑‑‑Pursuant to said agreement defendants took possession of the company premises including plant and machinery‑‑­Defendant having failed to return company premises etc. despite expiry of stipulated period of three years, plaintiffs filed suit for possession alongwith application for interim relief which application was dismissed by the Court holding that plaintiff had no prima facie case and also on ground of laches‑‑‑Validity‑‑‑Court was persuaded by consideration that suit was filed after more than two decades of the making of the agreement, but in that case proper course ought to have been to examine the question of limitation and reject the plaint in case Court found the suit to be barred by limitation‑‑‑Power to reject the plaint, no doubt could have been exercised suo Motu, but on no principle of law could the Court hold that a prima facie case did not exist without properly examining the question of limitation‑‑‑Consideration of laches did not apply in civil suits covered by statutory provisions of Limitation Act, 1908‑‑‑When the transaction was prima facie shown to be void the same needed to be considered whether statutes of limitation were at all applicable.

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

‑‑‑‑O. VI, R. 17‑‑‑Amendment of plaint‑‑‑Amendment of the plaint could always be sought and technical objection in that respect was not of much consequence.

Gulam Bibi v. Sarsa Khan PLD 1985 SC 345 ref.

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

‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Interim relief, grant and object of‑‑­Respondents were in possession of disputed property and were making full use of the same‑‑‑Applicants had not sought to deprive respondents to such use, but all that they had prayed for in their application was that respondents be restrained from transferring assets or creating‑third party interest thereon‑‑‑Principal object of granting interim relief was to preserve the corpus of the dispute and ensure that in case the suit was decreed in favour of the plaintiffs, execution thereof would not become impossible or extremely difficult‑‑‑Interim relief was granted to applicants, in circumstances.

Iqbal Kazi for Appellants.

Iqbal Ahmad for Respondent.

2003 C L C 719

[Karachi]

Before Sabihuddin Ahmed and Zia Perwez, JJ

THE COMMANDING OFFICER, NATIONAL LOGISTIC CELL and another‑‑‑Appellants

Versus

RAZA ENTERPRISES and others‑‑‑Respondents

High Court Appeal No.88 of 2001, decided on 24th January; 2002.

Specific Relief Act (I of 1877)‑‑--

‑‑‑Ss. 42 & 54‑-‑Sindh Urban Estate Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance (III of 2001), Ss.3 & 4‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑‑Suit for declaration and permanent injunction‑‑‑Allotment of land‑‑‑Cancellation of allotment‑‑‑Plaintiff had sought declaration of title in respect of property which‑ he had purchased from its allottee‑‑‑Authorities resisted suit contending that suit‑land which was transferred to the Authority was in occupation of plaintiff but the Authorities were unable to place any document establishing their right to occupy the suit‑land‑‑‑Court accepting application of plaintiff for interim injunction, restrained defendants (Authorities) from taking any coercive action so as to disturb possession of plaintiff over the suit‑land‑‑‑Defendant had contended that lease in favour of original allottee having been cancelled in. terms of S.3 of Sindh Urban Estate Land (Cancellation of Allotments. Conversions and Exchanges) Ordinance, 2001, injunction granted to plaintiff had become infructuous‑‑‑Validity‑‑‑Provisions of S.3 of Sindh Urban Estate Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001 no doubt had provided that allotment of State land at rates lower than market value would stand cancelled but under S.4(2) of said Ordinance required a committee to make an enquiry for determining whether allotment was actually made at a rate less than the market value‑­‑Provisions of S.3 of Sindh Urban Estate Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001, prima facie, could take effect after market value at the relevant time had been determined by Committee‑‑‑Under provisions of S.4(2) of Sindh Urban Estate Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001, even if allotment was found to be in violation of law or a bar on allotment, Committee was still empowered to determine amount of loss caused to Government and would call upon the person concerned to pay such amount within a specified time‑‑‑Allotment, in such cases, was not to be treated as void ab initio, but allottee could acquire ownership rights after payment of amount and to make up the loss to the Government within time specified by the Committee‑‑­Plaintiff/vendee was not divested of interests in suit property upon promulgation of Sindh Urban Estate Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001, especially when plaintiff had undertaken that Committee would determine market value of suit property 'at the time of allotment and how much it was higher than amount paid by him and he would pay the difference‑‑‑Interim order protecting possession of plaintiff over the suit‑land passed in favour of plaintiff was eminently just and fair which could not be interfered with.

Abdul Rauf Khan‑and G.M. Qureshi for Appellants.

Dr. Farough Naseem and Gohar Iqbal for Respond No. 1

Saulleman Habibullah, Addl. A.‑G., Sindh.

Date of hearing: 24th January, 2002.

JUDGMENT

SABIHUDDIN AHMED, J.‑‑‑ This appeal is directed against an order of learned Single Judge, whereby the appellants have been restrained from disturbing the possession and interfere with the works of the respondent with respect to certain lands in Deh Khanput, National Highway, District Malir and the respondents have also been restrained from parting with possession or creating any third party interest in the aforesaid land.

1. It appears that there is some dispute over the land in question between the parties and the respondents filed Suit No. 1201 of 1998 seeking declaration of title having purchased the same from the previous allottee and permanent injunction against the appellants from interfering with their possession. The case of the appellant on the other hand has been that the land was occupied by 153 Engineering Battalion and 101 Transport Battalion of the National Logistics Cell (N.L.C.) in 1983 and 1985 respectively. The appellants, however, were unable to place any document before the Court establishing their right to occupy the land whereupon the impugned order was passed. The appellant case appears to be that the two battalions were in possession of 87 acres of land and in 1992, 10 acres were leased out to one Abdul Rasheed Jatoi for industrial purposes in contravention of Rules and at a rate far below the market price. The aforesaid Abdul Rasheed Jatoi sold it to Muhammad Hanif one of the partners of the respondent in violation of the ban imposed by the Provincial Government.

2. The respondent No.1 alongwith the plaint moved an application for interim injunction against dispossession and interference with work on the disputed relief whereby interim property on the part of the appellant was sought. The learned Single Judge passed an order restraining the defendants (including the appellants herein) their agents or officers from "taking any adverse, coercive or other action so as to disturb the possession and ‑interfere with the work of the plaintiff on the land ...." At the same time it was ordered that the respondent No.1, if in possession shall not part with possession or create any third party interest in the property. The appellants have impugned this order in appeal.

3. Messrs G.M. Qureshi and Abdul Rauf Khan learned counsel for the appellants have raised a two‑fold contentions before us. In the first place it is urged that the lease in favour of the aforesaid Abdul Rasheed Jatoi stands cancelled in terms of section 3 of the Sindh Urban Estate hand (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001 (hereinafter mentioned as the Ordinance) and therefore, the injunction granted in favour of the respondents has become infructuous. Secondly it is contended that the findings of the learned Single Judge to the effect that the possession of the appellants and the restriction against raising of construction imposed upon the respondents is prima facie unlawful and is not sustainable in law.

4. In support of the first contention Mr. G.M. Qureshi learned counsel for the appellants has argued that upon the enforcement of the Ordinance w.e.f. 3‑1‑2001 the leases for 4 acres of land executed in February, 1992 and for 6 acres in July, 1993 stood cancelled.

5. Dr. Farogh Naseem learned counsel for the respondent No. 1 on the other hand has contended that assuming that the Ordinance is applicable to the land in dispute, the respondent has submitted in writing before the learned Single Judge that in case the Committee required to be appointed under section 4(1) of the Ordinance determines the market value of the property at the time of allotment to be higher than the amount paid by the aforesaid respondent, the latter will pay the difference within the specified time. He has further contended that the cancellation of allotment in favour of the respondent No.1 cannot be deemed to have become effective merely upon the promulgation of the Ordinance but could only take effect after the Committee in question has performed its functions according to law and the allottee has failed to comply with its directions.

6. At this stage‑it may be pertinent to examine the provisions of the Ordinance, which only comprises of 6 sections. Its purpose as the preamble states is to "provide for cancellation of certain allotments, conversions or exchanges of urban State land obtained or granted for residential commercial or industrial purposes, at rates lower than the market value in violation of law or ban …………………. "

7. Sections 3 and 4 of the Ordinance, which are the operative provisions may be reproduced as follows:‑‑

"3. Notwithstanding anything contained in any law for the time being in force or any agreement or judgment or order of a Court, but subject to other provisions of this Ordinance, the allotments conversions or exchanges of urban State land obtained or granted for residential, commercial or industrial purpose at the rates of lower than the market value in violation of law or ban from 1st January, 1985 shall stand cancelled.

4(1) Government may appoint a Committee for carrying out the purposes of this Ordinance.

(2) Where the Committee, after making such enquiry as deemed fit is satisfied that the allotments, conversions or exchanges of urban State land are obtained or granted for residential, commercial or industrial purposes at the rates lower than the market value in violation of law or ban, it shall determine the amount of loss caused to Government and call upon the person concerned to pay such amount within the specified time."

1. Indeed the above provisions, in accordance with well‑settled principle of interpretation of statutes need to be read together. Section 3 no doubt provides that allotments of State land at rates lower than the market value shall stand cancelled, but section 4(2) requires a Committee to make an enquiry for determining whether the allotment was made at a rate less than the market value which has been defined to mean under section 2(6) as the value of the land at the time of allotment. In other words the cancellation under section 3, could, prima facie, take effect after market value at the relevant time has been determined by the Committee. It is equally important .to keep in view that under section 4(2) even if the allotment is found to be in violation of the law or a ban on allotments the Committee is still empowered to determine the amount of loss caused to the Government and call upon the person concerned to pay such amount within a specified time. It, therefore, appears that even in such cases the allotment is not to be treated as void ab initio but the allottee can acquire ownership rights after payment of the amount of loss caused to the Government within the time specified by the Committee.

2. In view of the above, it is difficult to subscribe to the proposition that the respondent No. 1 stood divested of all interests in the property upon mere promulgation of the Ordinance. The law appears to confer upon him the right to acquire ownership rights and valid title to the property after having made up the losses sustained by the Government. We are, therefore, unable 4o be persuaded by the contention that the respondent No. 1 lost all interests in the property.

3. Major Abdul Rauf Khan learned counsel for the appellant further argued that the allotment in favour of the predecessor‑in‑interest of the respondent No.1 was even otherwise illegal as such the aforesaid respondent could not be said to have acquired any legal interest in the property. He relied upon the observations of the Honourable Supreme Court in Lamvin Traders v. Deputy Administrator, Evacuee Trust Properties 1993 SCMR 1707 for the proposition that a sale in violation of the prescribed method did not confer vested rights in the property. Indeed the proposition of law is well‑established but in our humble view the judgment cited is of little help to the learned counsel. In the aforesaid case allotment of land under M.L.R. 57 in favour of the appellant after inviting bids under sealed cover was held illegal as the law required disposal through open auction. Nevertheless, upon an offer by learned counsel for the respondent, their Lordships, remanded the case to the High Court for determination of its current market value granting an opportunity to the appellant to pay the same and get the property transferred in his favour. In the instant case such an opportunity is to be given by the mandate of the Ordinance itself. Moreover the Ordinance expressly covers illegal allotments or those made in violation of a lawful ban on transfers. imposed by the Government. .

4. Mr. Abdul Rauf Khan next argued that the appellant was a branch of the Pakistan Army and restrictions on the use of the property in where the appellant was operating could always be imposed even upon a lawful owner under the provisions of the Works of Defence Act, 1903 and the Defence of Pakistan Rules, 1971. In this context, we are prima facie of the view that the N.L.C. is not a part of the Pakistan Army and have discussed this aspect of the controversy in some detail in our order in H.C.A, 87 of 2001, which was heard alongwith this appeal. Secondly even if the occupation of the respondent be treated as a work of defence for the purpose of the Works of Defence Act, 1903, it appears that section 3 of the Act no doubt enable the Federal Government to impose restrictions upon the use and enjoyment of land in the vicinity of such work, but such restriction can only be imposed upon compensating the owner or user of such land. The Act provides a detailed, mechanism for determination of compensation on patterns similar to the Land Acquisition Act and contemplates issuance of notifications by the Federal Government. Admittedly no such notification was ever issued. As regards the Defence of Pakistan Rules, it might suffice to say that though the Defence of Pakistan Ordinance, 1971 and the Rules made thereunder no doubt conferred certain emergency powers on the Federal Government to requisition private property, but the Ordinance was repealed way back in 1977 through Ordinance XXXII of 1977. At the same time, the Requisitioned Land (Continuance of Powers) Ordinance was promulgated which allowed the Government to exercise certain powers over requisitioned land, but obviously no further land could be requisitioned after the repeal of the Ordinance. Therefore, with profound respects to Mr. Abdur Rauf Khan's industry in preparing an elaborate argument, we regret we are unable to subscribe to his views.

5. In any event while our above-observations are only tentative and intricate legal questions ought to be resolved at the trial, it is not possible to say that the respondent did not have a prima facie case. In such matters the dominant requirement for grant or refusal of temporary injunction is to preserve the corpus of the dispute so as to ensure that the interests of both parties are duly protected. In the above circumstances, we are of the considered opinion that the interim order protecting the possession of the respondent at the same time restricting them from parting with possession or creating third party interest is eminently just and fair, and there is no reason to interfere with the exercise of judicious exercise of discretion on the‑part of the learned Single Judge. Therefore, we dismissed this appeal vide our short order dated .24‑1‑2002. However, keeping in view the importance of the matter, we would direct that the suit may be disposed of as expeditiously as possible and preferably within six months from today.

H.B.T./C‑62/.K Appeal dismissed.

2003 C L C 739

[Karachi]

Before Ghulam Rabbani and Syed Ali Aslam Jafri, JJ

IMTIAZ AHMED SHEIKH‑‑‑Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and 5 others‑‑‑Respondents

Constitutional Petition No.D‑1830 of 2002 decided on 8th November, 2002.

Representation of the People Act (LXXXV of 1976)‑‑‑--

‑‑‑‑Ss. 52, 68, 69 & 103(AA)‑‑‑Jurisdiction of Election Tribunal‑‑­Election dispute within the meaning of S.52 read with Ss.68 & 69 of Representation of the People Act, 1976 would fall within the exclusive jurisdiction of Election Tribunal to be appointed for the said purpose by the Election Commission‑‑‑Mistake whether bona fide or unintentional on the part of the Returning Officer or any other functionary of Election Commission if found apparent on record tending to defeat the object of holding just, fair and transparent election and resulting in disclosing incorrect result would not be deemed to be an election dispute‑‑‑Election Commission had jurisdiction to correct or rectify such mistake apparent on face of record.

Emmanual Masih v. The Punjab Councils Election Authority and others 1985 SCMR 729; Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447; Shaikh Mushtaq Ali, Advocate v. Khalid Anwar and others 1988 CLC 1138; Muhammad Yousaf v. The Government of Pakistan and others 1992 SCMR 1748; Gholam. Mustafa Jatoi v. Additional District Judge. and others 1994 SCMR 1299; Ch. Nazir Ahmed and others v. Chief Election Commissioner and others PLD 2002 SC 184; Government of Pakistan v. Sikandar Khan and others PLD 1987 Pesh. 68; Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396; Messrs Middle East Bank Ltd. v. Zubair Ahmed Khan Afghani 1990 MLD 908; Syed Muhammad Khalilur Rehmati Chishti v. Shamshad Khan and others 1993 MLD 1225; Muhammad Ayoob v. Election Commission of Pakistan PLD 1991 Quetta 51; Darayus Pestonjj v. Namsing and 2 others 1998 CLC 921 and Abdul Waheed Zaman Qureshi v. The Election Authority and others 1999 CLC 112 ref.

Muhammad Akram Shaikh, Abrar Hassan and Fareed A. Dayo for Petitioner.

Nadeem Azhar Siddiqui, Dy. A.‑G. for Respondent No.2.

Raja Qureshi, A.‑G., Sindh for Respondents Nos.3 to 5.

Aitzaz Ahsan and Raza Ali Hashmi for Respondent No.6.

2003 C L C 766

[Karachi]

Before Sabihuddin Ahmed and Zia Perwez, JJ

COMMANDING OFFICER, NATIONAL LOGISTIC CELL and another‑‑‑Appellants

Versus

RAZA ENTERPRISES and others‑‑‑Respondents

High Court Appeal No.87 of 2001, decided on 24th January, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of.1908), O.VII, R.11‑‑‑Constitution of Pakistan (1973), Art.245‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Suit for declaration‑‑‑Rejection of plaint‑‑‑National Logistic Cell (N.L.C.), whether a branch of Pakistan Army‑‑‑Plaintiffs in their suit had sought declaration of title with respect to certain pieces of land‑‑­Defendants raised objection to the maintainability of the Suit contending that National Logistic Cell (N.L.C.) being part of Pakistan Army, suit against the cell was barred by law‑‑‑Application filed by defendant under O.VII, R.11, C.P.C. for rejection of plaint was dismissed by the Court against which High Court appeal had been filed‑‑‑National Logistic Board was constituted by a Notification from Cabinet Division, Government of Pakistan, for the management of transportation/projects which were entrusted to the Board from time to time‑‑‑Board was to be headed by Federal Secretary, Finance Division and comprising of Federal Secretary, ‑Planning and Development Division and Quarter Master‑General, General Headquarters was to act as members‑‑‑Contention of defendants was that since Quarter Master‑General who was the Operational Head of National Logistic Cell was a serving Army Officer subject to Army Act and number of officers and other subordinates were working under him, therefore, National Logistic Cell ought to be treated as a Department of Army‑‑‑Contention was repelled because mere fact of some Army Officer being required to work in an organization, could never by itself make such Organization a part of Army.

Aon Muhammad Khan v. Saeed Qadir PLD 1987 SC 490; Muhammad Aslam v. Incharge N.L.C. Centre Khairpur PLD 2001 Kar. 35; Liaqat Hussain's case PLD 1999 SC 504; Shahida Zahir Abbasi v. president of Pakistan PLD 1996 SC 632 and Force Commander, A.S.F. v. Muhammad Rashid 1996 SCMR 1614 ref.

Abdul Rauf and G.M. Qureshi for Appellants.

Dr. Farough Naseem and Gohar Iqbal for Respondent No. 1.

Sullemah Habibullah, Addl. A.‑G.

Date of hearing: 24th January, 2002.

2003 C L C 771

[Karachi]

Before Shabbir Ahmed and Azizullah M. Memon, JJ

HUSSAIN. A. HAROON and others---Appellants

Versus

Mrs. LAILA SARFRAZ and others---Respondents

High Court Appeals Nos.315, 318 of 2000 and 3 of 2001, decided on 20th November, 2002.

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

----Ss. 96 & 104---Appeal by a stranger to, suit or proceedings--­Provisions of Ss. 96 and 104 do not in term say as to who was entitled to prefer appeal ---Civil Procedure Code, 1908, however, provides that if decree or order appealed against adversely affects a person he can challenge the same 'in appeal even if he is not made a party to the original suit or proceedings---Stranger to a suit or a proceedings is not prohibited by Code of Civil Procedure, 1908 from filing an appeal against an order whereby he was aggrieved.

H.M. Saya & Co. v. Wazir Ali Industries Ltd., Karachi and another PLD 1969.SC 65; Q.B.E. Insurance Limited v. The Trustees of the Port of Karachi 1992 CLC 804 and S. Musarrat Hussain Zaidi and another v. S. Salim Jawaid Zaidi and another PLD 1993 Kar. 548 ref.

(b) Natural justice, principles of---

--- Proceedings by whomsoever held, whether judicial or administrative, principles of natural justice had to be observed if the proceedings might result in consequences affecting "the person or property or other rights of the parties concerned "---Rules of natural justice would apply even though there could be no positive words in the statute or legal document whereby the power was vested to take such proceedings, for, in such cases that requirement was to be implied into it as the minimum requirement of fairness.

Sindh Industrial Trading Estates v. Mst. Qamar Hilal and 5 others 2001 SCMR 1680; Philippine Airlines Inc. v. Paramount Aviation (Private) Limited and others PLD 1999 Kar. 227; Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45; The University of Dacca v. Zakir Ahmed PLD 1965 SC 90; Faridsons Limited v. Government of Pakistan PLD 1961 SC 537; Abdur Rahman v. Collector and Deputy Commissioner, Bahawalnagar and others PLD 1964 SC 461; Industrial Development Bank of Pakistan v. Saadi Asmatullah and others 1999 SCMR 1874; General Biscuits v: Messrs Diamond Food Industries (Pvt.) Limited 1999 YLR 305 and Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9 ref.

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

----Ss: 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Interim injunction, grant of---Principles that party seeking injunction has to establish prima facie case, that balance of convenience lies in favour of grant of injunction and possibility of irreparable loss existed in case of refusal that cannot be compensated in terms of money; that Court has inherent power to grant injunction, in a fit case even if case would not fall within four corners of well-settled principles for grant of injunction under O.XXXIX, Rr.1 & 2, C.P.C. and that if the facts of the case so demanded in order to foster the cause of justice---Ad interim injunction during the pendency of suit could not be granted in absence of relief in shape of perpetual injunction.

Muhammad Saleem and 5 others v. Administrator, K.M.C. and 2 others 2000 SCMR 1748; Industrial Development Bank of Pakistan v. Saadi Asmatullah and others 1999 SCMR 2874; General Biscuit v. Messrs Diamond Food Industries (Pvt.) Ltd. 1999 YLR 305; Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9; Marghub Siddiqi v. Hamid Khan and 2 others 1974 SCMR 519; Muhammad Abid v. Nisar Ahmed 2000 SCMR 780; United Bank Ltd. v. Muhammad Hafeez Shakir 1998 CLC 1822; Zeenat Begum and another v. Jan Mir Khan and 8 others 1986 CI.C 2923; Mir Qamar-ul-Zaman v. Agricultural Development Bank of Pakistan 1995 CLC 1982; Mrs. Shahzadi Baber v. Hina Housing Project (Pvt.) Ltd. and others 1994 CLC 1601; American Cyanamid Co. v. Ethican Ltd. (1975) 1 All ELR 504; Mst. Hawa Bai v. Haji Ahmad and another 1987 CLC 558; Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540; Dorab Cawasji Warden v. Coomi Sorab Warden and others AIR 1990 SC 867; Balagarwab Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. and 2 others PLD 1990 Kar. 1; Mst. Salma Jawaid and 3 others v. S.M. Arshad and 7 others PLD 1983 Kar. 303; Ghazi Nasiruddin v. Seth Hashim Dawood Divan and others PLD 1962 (W.P.) Kar. 59 and Azhar Wali and others Bell Hellicopter Textran Inc. and others 1987 MLD 1336 ref.

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

----O. VII, Rr. 1 & 7---Prayer clause in the plaint---Prayer clause was not to be read in isolation and divorced from the case set up by the plaintiff in plaint---Prayer-clause was the substance of plaint which was to be looked at and not the form in which it was drafted---Court was not restricted to the consideration of the prayer clause of the plaint---Court while granting relief, could dispense with the technicalities and could mould the relief according to requirement, if dictates of justice so demanded---Beneficiaries, in the present case, had filed suit alleging mismanagement on the part of the Mutawallis by acting contrary to the Wakf, as such prayer in the plaint was inclusive of perpetual injunction against the Mutawallis restraining them from functioning in said capacity, which included all acts, deeds by Mutawalli in dealing with the Wakf property---Contention that relief granted by Court was beyond the scope of the suit, was not tenable.

Fazalur Rehan v. Younus Ali Gilani and 9 others 1999 MLD 1565; Mardan Ali v. Rabnawaz 1991 CLC 82; Hitachi Limited and another v. Rupali Polyester and others 1998 SCMR 1618 and Wali Dad v. Mst. Tasneem Kausar and another 1999 CLC 163 ref.

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

----Art. 114---Estoppel---Principles recognized for giving effect to estoppel ---Four principles had been recognised for giving effect to estoppel; firstly, that the fact recited should be essential for the deed creating the rights and obligations; secondly, the suit must be based on the deed or concerning a right of it; thirdly, that it should have prompted the other side to an action to its prejudice; and fourthly that the estoppel should not be utilized for making something legal, which in fact was illegal offending against a statutory provision concerned with public policy.

Messrs Dadabhoy Cement Industries Limited and others v. Messrs, National Development Finance Corporation 2002 CLC 166 and Muhammad Ahmad v. Mrs. Qamar Anwar Sheikh 1980 CLC 664 ref.

(f) Islamic Law---

----Waqf---Rights of Mutwallis/beneficiaries---Scope---Once the property was dedicated, the right of "Waqif" was extinguished and the ownership was transferred to God ---Mutawallis could not deal with the property as owners, but only as Managers to act in accordance with the mandate given to them by the deed---Act of Mutawalli in the present case, in gifting property or abandoning it or the act of the Mutawalli in amalgamation of property kept for residential purposes under the deed, were the acts of Mutawalli beyond his mandate/power---Neither Mutawalli nor the beneficiaries could claim ownership of a Waqf property which had been dedicated to God---Person could waive his right even under the law provided he was possessed of that right--­Beneficiaries' right in Wakf being the "usufruct" of the Waqf property, actions on part of beneficiary with regard to amalgamation or correspondence exchanged by one of beneficiaries with other for construction would not be an estoppel against them nor waiver of their right.

(g) Islamic Law---

---- Trusts Act (II of 1882), S.1---Wakf-alai-aulad---Applicability of Trusts Act, 1882---Scope---Provisions of Trusts Act, 1882 were not applicable to Wakf-alal-aulad in view of S. 1 of the said Act.

Muhammad Ali Khan v. Ahmed Ali Khan and others AIR 1945 All. 261 ref.

(h) Islamic Law---

----"Wakf under Islamic Law" and a "Trust under Trusts Act, 1882"--­Distinction---No religious motive was necessary in a Trust, whereas a Waqf was generally made with a pious, charitable or religious purposes---Trust could be for any lawful object, whereas ultimate object for a Waqf must be benefit to mankind---Trust property would vest in the Trustees, whereas Waqf would vest in God---Trustee had got a larger power than a Mutawalli of a Waqf, who was only a Manager or Superintendent---Not necessary that a Trust must be perpetual, irrevocable or inalienable, whereas a Waqf was perpetual, irrevocable and inalienable---Trust was regulated by the provisions of Trusts Act, 1882, but the provisions of Trusts Act, 1882 were not applicable to Muslim Waqf---Muslim Waqf would owe its origin to a rule laid down by Prophet Muhammad (p.b.u.h.) and would mean "the tying up of property in the ownership of God and the devotion of the profits for the benefit of human beings"---Once it was declared that particular property was Waqf or any such expression was used which implies Waqf or the tenor of the document showed that a dedication to pious or charitable purposes was meant, the right of the Waqif was extinguished and the ownership was transferred to God---Donor could name any meritorious object as the recipient of the benefit---Manager of Waqf was the Mutawalli, the Governor, Superintendent or Curator and could be called as prosecutor" ---Perpetuity was the essential trial of a Waqf--If from change of circumstances and lapse of time or for some other proper reasons, it had become impossible to apply the property in the manner directed by Waqif the Court could apply it for similar purpose by different means as near as possible to the original intention of the grantor by varying the scheme by applying "Cypres doctrine" which had received judicial recognition.

Salibai v. Bai Safiabeen ILR 36 Bom. 111 ref.

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

----S. 104 & O.XXXIX---Appeal against interlocutory order---Appellate Court in appeal against the interlocutory orders, would not substitute its own discretion for that of trial Judge except where discretion was exercised by trial Judge arbitrarily, perversely, contrary to legal principles and on the basis of assumptions not borne out by record.

Khairati v. Aleemuddin PLD 1973 SC 295 and Eckhardt & Co. Marrine GMBH. West Germany and another v. Muhammad Hanif PLD 1986 Kar. 138 ref.

(j) Islamic Law---

---- Waqf-alal-aulad--- Case pertained to "Waqf-alai-aulad" which was based on the principle arising from the concept that supporting oneself and one's kith and kin, who were needy, was also a noble and charitable act, because Holy Prophet (p.b.u.h.) had said "where a Muslim bestows on his family and kindred hoping for reward in the next world, it becomes alms although he had not given to the poor, but to his family and children "---From principle of Waqf-alal-aulad had developed as a means of dedicating property in favour of oneself and one's lineal descendants, as a pious act and sometimes directing a major or minor portion of the usufruct towards other religious or charitable objects, in the name of Allah---Extension of the institution of Waqf-alal-aulad, having nothing to serve for public charity, till the whole line of the Waqif and his children and their descendants stands extinguished, or having little to serve for public charity, but the bulk of the usufruct being directed for the benefit of the Waqif and his descendants, and the office of Mutawalli being confined to the Waqif and/or his legal descendants alone---Whether there was a Waqf for a purely religious, pious or charitable object or one for the support of a Waqif and his kith and kin, with some religious, pious or charitable objects added to it, the corpus of the Waqf could not be allowed to be usurped or eroded, but the usufruct could be used or applied to the objects of the Waqf.

Khalid Javed and others v. Qazi Masood-ur-Rehman, Additional District and Sessions Judge, Sialkot and 2 others PLD 1988 Lah. 541 ref.

(k) Doctrine of Cypres---

---- Explained.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), Ss. 94(e), 151 & O. XXXIX, Rr.1, 2---Law Reforms Ordinance (XII of 1972), S.3---Suit for declaration, account and permanent injunction---Interim relief, grant of---High Court appeal---Suit was filed by beneficiaries against Mutawallis and their servants to restrain them from carrying out any development or construction in respect of Trust property---Application for grant of interim injunction was also filed alongwith the suit by plaintiffs which application was granted by High Court in original jurisdiction and contract for construction of property arrived at between Mutawalli and the builder was suspended ---Mutawallis had filed High court Appeal against order of Single Judge of High Court---Plaintiff had alleged mismanagement of the Trust properties---Act of Mutawalli in amalgamation of suit properties with other property was against the object/intention expressed by donor in the-deed ---Even if it was accepted that mode of use of suit properties by lapse of time or non-existence of lineal male descendants was capable of being carried out that would not give the Manager of properties to use the same in any other form except with the leave of the Court under Doctrine of Cypres---Suit properties had been demolished for construction whereby nature of properties and mode of use was being changed by converting same for commercial project which use would be against the wishes of donor of said property---Majority decision or beneficial nature of proposed project would not bring actions of defendants/Mutawallis within mandate of law---High Court in order to preserve suit property from further erosion, had suspended operation of contract---Discretion had been exercised by Single Judge who had not only inherent power to grant injunction in fit case even if case did not fall within the four corners of principles for grant of injunction under O.XXXIX, Rr.1 & 2, C. P. C. to prevent the ends of justice from being defeated by an order specified in S.94(e), C: P.C. but had also such power in its disciplinary jurisdiction over the Waqf properties---Order of Single Judge could not be interfered with in High Court Appeal.

Shaharyar and Farooq H. Naek for Appellant (in High Court Appeal No.315 of 2000).

Rasheed A. Rizvi for Appellant (in High Court Appeal No-318 of 2000).

Mushtaq A. Memon for Appellant (in High Court Appeal No.3 of 2001).

Naimur Rehman for Respondents Nos. 1 to 6.

Yawar Farooqui for Respondent No.7.

Dates of hearing: 1st, 3rd and 4th October, 2002.

2003 C L C 799

[Karachi]

Before Muhammad Sadiq Laghari, J

ALLAUDDIN and 17 others through Legal Representatives--- -Applicants

Versus

DISTRICT MANAGER, WAQF PROPERTIES, MIRPURKHAS, SINDH and 3 others---Respondents

Civil Revision Application No.234 of 2000, decided on 5th March 2003.

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

----S. 2(f)(j)---Landlord and tenant, relationship of---Tenant is estopped from challenging the landlord'stitle or 'his entitlement to receive the rent after acknowledging him as landlord and paying the rent to him ---Only exception is the event when landlord claiming title was stripped off the title finally.

T. Motandas v. Anis Ahmed PLD 1987 Kar. 159 ref.

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

----S. 42---Declaration, grant of---Requirement of S.42 of Specific Relief Act, 1877 is the existence of a legal character or a legal right ---Where suit was not based on legal character or legal right, discretionary relief of declaration could not be granted---Courts were also required to look into the conduct and behaviour of parties while considering the prayer for declaration.

Muhammad Ismail H. Memon for Applicants.

Anwar H. Ansari, State Counsel.

Date of hearing: 23rd January, 2003.

2003 C L C 892

[Karachi]

Before S.A. Sarwana, J

SAMSON SIRCAR---Appellant

Versus

REHMAN KHALIL and another---Respondents

First Rent Appeal No. 1 of 2002, decided on 3rd February, 2003.

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

----Ss. 17(2) & 27---Default in payment of rent by the tenant---Payment of rent pursuant to the order of Rent Controller---Appeal being continuation of original proceedings tenant has to continue either to deposit the rent with the Court or to pay the same to the landlord--­Tenant having failed to prove the payment of arrears and future rent, had, committed further default in payment of rent and was liable to be ejected on such score also.

1992 MLD 801 distinguished.

Province of East Pakistan v. Muhammad Hossain Mia PLD 1965 SC 1 ref.

Ibrahim Raees for Appellant.

Arshad Mobin Ahmed for Respondent.

2003 C L C 930

[Karachi]

Before S. Ahmed Sarwana, J.

PORT SERVICES (PVT.) LTD. ---Plaintiff

Versus

TRUSTEES OF THE PORT OF KARACHI---Defendant

Suit No.8 of 1995, decided on 16th September, 2002.

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

----O. I, R. 10(2)---Addition of a party in suit by Court---Guiding principles stated.

Any person who ought to have been joined or whose presence before Court is essential to enable it to effectually and completely adjudicate upon and settle all the questions involved in suit, may be added by Court at any stage of proceedings. The requirement of addition of a party is that his presence should be necessary to completely and effectually determine judicially all the questions involved in suit; meaning thereby that if such person is not joined in the proceedings, the Court would not be able to completely and effectually determine the rights of parties and settle all the issues involved in the legal proceeding. The provision does not mean that any person, who has any distant or indirect relationship or connection with either the plaintiff or defendant ought to be joined as a party to the proceedings. It means that the person must be directly and substantially connected with the issues, which have to be adjudicated by the Court. A remote connection with the issue or party would not, make that person a necessary party without whose presence the issue cannot be adjudicated and settled.

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

---Ss. 42 & 54---Civil Procedure Code (V of 1908), O. I, R. 10(2)---Suit for declaration, injunction and damages---Joining of applicant as defendant in suit---Plaintiff (contractor) filed suit against defendant (Karachi Port Trust) seeking declaration that encashment of Bank guarantee and termination of contract by defendant was without lawful authority, and a permanent injunction restraining defendant from awarding dredging contract to any one else, and in alternative claimed damages---Applicant's claim as asserted in application under O.I. 10. C.P.C. for recovery of certain amount from plaintiff as costs of mobilization charges of dredger---Applicant's claim appeared to be for breach of some contract entered into with plaintiff, which was an independent dispute between them---Such dispute of applicant with plaintiff had no bearing on dispute of plaintiff with defendant---Relief claimed in suit did not even remotely require presence of applicant--­Court could fully and completely adjudicate upon and settle all questions arising from alleged termination of contract by defendant without joining any third party---Application tinder O.I, R.10, C.P.C. was dismissed being misconceived.

Anwar Mansoor Khan and Yawar Farooqui for Plaintiff.

Atizaz Ahsan and Hassan Azhar for K.P.T.

Farrukh Zia Shaikh for Applicant/Intervenor.

Date of hearing: 28th June, 2002.

2003 C L C 969

[Karachi]

Before Zia Perwez, J

ASIAN FOOD INDUS-TRIES and others---Plaintiffs

Versus

Messrs ISMAIL INDUSTRIES and others---Defendants

Suit No.918 and Civil Miscellaneous Applications Nos.6369, 6370, 6371 and 6173 of 2002, decided on 6th November, 2002.

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

----O. 11, R. 2 & O. XXXIX, Rr. 1, 2---Splitting of claims--­Omission of claim---Plaintiff in earlier suit omitted the claim and interim relief was refused---Plaintiff again prayed for interim relief in subsequent suit, which was based on same cause of action---Such relief could not be made subject-matter of subsequent suit---Splitting of claims arising out of same cause of action was not permissible as a party could not be vexed twice for same cause of action----Suit being hit by provisions of 0.11, R.2, C.P.C., was dismissed.

M.K. Abbasi v. United Bank Ltd. 1983 CLC 482; Muhammad Khalil Khan and others v. Mahboob Ali Mian and others PLD 1948 PC 131 and Abdul Hakim v. Saadullah Khan PLD 1970 SC 63 rel.

Khurram Gul Ghory for Plaintiffs.

Salim Ghulam Hussain for Defendant.

Date of hearing: 9th October, 2002.

2003 C L C 987

[Karachi]

Before Sabihuddin Ahmed and Ali Aslam Jafri, JJ

NOOR MUHAMMAD and others---Petitioners

Versus

KARACHI BUILDINGS CONTROL AUTHORITY, K.M.C. through Chief Controller, Karachi and 6 others---Respondents

Constitutional Petition No-.3306 of 1993, decided on 31st January, 2003.

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

----Arts. 204 & 199---Contempt of Court Act (LXIV of 1976); Ss.3 & 4---Withdrawal of Constitutional petition by petitioner under bona fide belief that respondent was alive to and interested in performing its duty---Such belief had been caused by a false statement---High Court allowed petitioners' application recalled order of withdrawal for decision of case on merits and directed contemnor to show cause for making deliberately a false statement in parawise comments.

Saalim Salam Ansari for Petitioners.

Rasheeduddin Ahmed for. Respondent No. 1.

Suleman Habibullah A.A.-G.

2003 C L C 999

[Karachi]

Before Zia Perwez, J

Dr. SyedRAZA ALI GARDEZI---Plaintiff

Versus

ADDITIONAL REGISTRAR---Defendant

Suit No.508 of 2000, decided on 16th September, 2002.

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

----R. 14(2)---Application for grant of certified copy of judgment and decree passed .in a suit---Applicant had. contended that he was resident of Pakistan Employees Cooperative Housing Society and that he wanted to prefer an appeal against judgment and decree copies of which had been sought by him---Property holders within parameters of the Housing Scheme and even permanent residents thereof could have either vested rights or at least some interest in the observance of necessary features of the relevant claim---Application was resisted on ground that judgment and decree passed in suit had attained finality and same could not be disturbed lightly and that application should have been supported by applicant by specific material to establish existence of substantial rights or material. on record justifying for grant of certified copy of judgment and decree--­Applicant who was permanent resident of the Housing Scheme, concerned, prima facie had some interest---As to finality of order, vested right of decree holder and question of maintainability of appeal which applicant intended to file, were questions to be considered and decided by the Appellate Court and it would not be appropriate for the High Court at the stage, while dealing with application of grant of certified copies, to examine the details and merits of appeal proposed to be filed---Prima facie case having been made out by applicant for grant of certified copies, his application in that respect was allowed.

Suleman Mala v. Karachi Buildings Control Authority 1990 CLC 448; Mirpurkhas Sugar Mills Ltd. v. Consolidated Sugar Mills Ltd. PLD 1987 Kar. 225; Fazal Din v: Lahore Improvement Trust, Lahore PLD 1969 SC 223 and H.M. Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 ref.

H.A. Rehmani for Plaintiff.

Naeem-ur-Rehman for Applicant.

Date of hearing: 16th September, 2002.

2003 C L C 1016

[Karachi]

Before Shabbir Ahmed, J

MIR SHAH MUHAMMAD GABOL --- Plaintiff

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others ---Defendants

Suit No. 1507 of 2000, decided on 27th August, 2002.

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

----0. XXXIX, Rr. 1 & 2---Temporary injunction, grant of ---Encroacher has no right to approach Court for grant of discretionary relief---Balance of convenience for grant of injunction does not lie in favour of such person.

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

----0. VIII, R. 10 & 0. IX, R. 7---Written statement, failure to file--­Recalling of order of ex parte proceedings---Defendant's plea was that non-filing of written statement was neither deliberate nor intentional as sanction to defend suit had been received late from Solicitor Department---Validity---Law leans adjudication of dispute on merits--­Suit was still at the stage of hearing interlocutory application and had not reached to stage of issues---High Court recalled such order and allowed defendant to file written statement.

(c) Administration of Justice---

---- Law leans adjudication of dispute on merits.

Mustafa Lakhani for Plaintiff.

Abbas Ali, Add1.A.-G.

Mr..Irfan for Defendant No.5.

2003 C L C 1038

[Karachi]

Before Khilji Arif Hussain, J

LYALLPUR ICE FACTORY through Partner Muhammad Hussain Chaudhry

Karachi---Plaintiffs

Versus

KARACHI ELECTRIC SUPPLY CORPORATION LTD. and another---Defendants

Suit No.556 of 1983, decided on 12th September, 2002

(a) Electricity Act (IX of 1910) -----

----S. 24---Disconnection of electric supply---Validity---Electric supply restored by Authority in terms of consent order was disconnected again on account of alleged non-payment of current bill---Authority did not put any question to the consumer in cross-examination that supply had been disconnected on account of non-payment of current bill nor produced the alleged unpaid bill---No notice was served upon the consumer before disconnection of supply nor any intimation or application was made in Court pointing out that consumer had failed to pay outstanding due--­Disconnection of electric supply by Authority was without any justification and lawful authority.

(b) Contract Act (IX of 1872)---

----S. 73---Electricity Act (IX of 1910), S.24---Suit ' for recovery of compensation for damage caused, on account of unlawful disconnection of electric supply---Plaintiff/consumer's factory remained without production for eight days---Plaintiff produced extract of sales for disputed period to show that no sale could take place due to non­availability of electric supply---Plaintiff also claimed salary of labour and loss for diversion of clients due to closure of the factory---Documents produced by plaintiff in support of its claim were exhibited without any objection by defendant (Authority)---Validity---Plaintiff was not entitled for loss of customers for not having examined any customer in support of its claim---Plaintiff was also not entitled for loss of salary for not having examined any labourer---Defendant (Authority) in its evidence had not stated a single word that plaintiff had not suffered loss on account of disconnection of electric supply---Plaintiff's claim regarding loss of production and loss of customers were too remote and could not be granted under S.73 of Contract Act, 1872 as law did not recognize any loss not naturally flowing from the breach of contract---Plaintiff's suit to the extent of damages claimed for period during which its factory remained out of production was decreed in circumstances.

(c) Contract Act (IX of 1872)---

----S. 73---Loss not naturally flowing from breach of contract---Not recognized by law.

Sajjad Ali Shah for Plaintiff.

M. Ikram Siddiqui for Defendant.

Date of hearing: 5th September, 2002

2003 C L C 1044

[Karachi]

Before Saiyed Saeed Ashhad, C.J. and Ghulam Rabbani, J

MARIAM --- Petitioner

Versus

UNIVERSITY OF KARACHI through Vice-Chancellor---Respondent

Constitutional Petition No.204 of 2002, decided on 15th January, 2003.

University of Karachi Act (XXV of 1972)--------

---S. 22---Constitution of Pakistan (1973), Art.199---Constitutional petition---Educational institutions---Admission Policy---Petitioner, though eligible to admission in two faculties applied for, was declined the same for having submitted more than one form for admission on merits---Validity---Petitioner had secured more marks than other students, who were awarded admission to faculties in question--­Eligibility of petitioner to admission to any of the two faculties for which she had submitted forms was not denied---Relevant para. of Procedure for Admission was not thoroughly clear to enable young students like petitioner with little knowledge to understand full import of its language---Petitioner had fallen prey to honest yet mistaken belief and there was no element of malice on her part---High Court accepted Constitutional _ petition declaring petitioner entitled for admission in University according to merits in subjects applied for.

Khalid Javed for Petitioner.

Nadeem Azhar Siddiqui for Respondent.

Muhammad Sarwar Khan, Addl. A.-G., Sindh.

Date of hearing; 25th April, 2002.

2003 C L C 1078

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

Messrs SHAHMURD SUGAR MILLS LTD. through Deputy General Manager

and others---Petitioners

Versus

GOVERNMENT OF SINDH through Secretary, Agriculture and Food Department, Sindh Secretariat, Karachi and others---Respondents

Constitutional Petitions Nos.1364 to 1'369, 1385 to 1389 of 1998, 1421, 1266 and 1267 of 1999, decided on 27th March, 2003.

Sugar Factories Control Act (XXII of 1950)---

----S. 16(v) [as added by Sugar factories Control (Sindh Amendment) Ordinance (11 of 1,985)]---Notification No.8(142) SO(Ext)89--­Constitution of Pakistan (1973), Ans.199, 2A, 3, 4. 18, 25, 38 & 227--­Constitutional petition---Payment of "quality premium" to the growers in the Province of Sindh under S. 16(v) of the Act ---Vires of S.16(v), Sugar Factories Control Act, 1950 [as amended in Sindh]---Contentions of the Mill Owners were that although the Sindh (Amendment) Ordinance, 1985 . by virtue of which the payment of "quality premium to the growers" was made leviable, had expired by efflux, of time and thereafter there had been no Legislation authorizing the Provincial Government of Sindh to collect "quality premiums or to direct Sugar .Mills for payment of the same to the growers but they were being compelled to pay the same withbut lawful authority; that the delegation of authority to the Provincial Government in S.16(v) of the Act suffered from excessive delegation and was arbitrary because no guidelines were specified; that Provincial Government was intending to issue fresh notifications containing directions for payment of similar "quality premium" to the growers; that similar provision in the Punjab Province had been struck down by the High Court in the case of Fauji Sugar Mills v. Province of the Punjab 1996 CLC 592 and thus no "quality premium" was levied in the Province of Punjab and the insistence of Provincial Government of Sindh on the payment of such levy by the Sugar Mills in Sindh was discriminatory, un-Islamic and thus violative of Arts.2A, 3, 4, 18, 25, 38 & 227 of the Constitution of Pakistan for Sugar Mills in the Province of Punjab stood on better footing than the ones in the Province of Sindh--­Validity---Provincial Government was empowered to fix the minimum price of the sugarcane under S. 16(i) of the Act either generally or related to the sugar contents of the cane---Provision of S. 16(v) of the Act specifically empowered the Provincial Government to direct the Sugar Mills to pay "quality premium" at the end of crushing season at such rate 'as may be prescribed by the Provincial Government in proportion to the sucrose recovery of each Mill in excess of base level sucrose contents determined by the Provincial ' Government from time to time---Such power of the Provincial Government contained sufficient criteria and Was linked to the recovery of sucrose in excess of the base level and not otherwise and such _was .not an excessive delegation of authority to the Provincial Government---Direction for payment of "quality premium" thus was, part of single consolidated contract and no separate transaction totally independent and separate of the settlement of minimum price which took, place and consequently did not amount to interference with a concluded contract---Provisions of SA.6(v) of the Sugar Factories Control Act, 1950 .were neither contrary to any Injunctions of Qur'an and Sunnah nor the Constitution---Principles.

Ellahi Cotton Mills Ltd. and others v. Federation of Pakistan and others (1976) 76 Tax 5; 1991 SCMR 1041; Pakistan Tobacco Company Ltd.'s case 1999 SCMR 382 and Inamur Rehman v. Federation of Pakistan 1992 SCMR 563 fol.

Fauji Sugar Mills v. Province of Punjab 1996 CLC `592; Commissioner of Income-tax v. Seimen A.G. PLD 1991 SC 368; I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Inamur Rehman v. Federation of Pakistan 1992 SCMR 563; Muhammad Bashir PLD 1982 SC 139; Mian Aziz A. Shaikh PLD 1989 SC 613; Said Kamal Shah's case PLD 1986 SC 360; Bokhari: Kitabul Baua No.3709; Abu, Daud; Kitabul Aiara No.3442; Qazilbash Waqf v. Chief Land Commissioner PLD 1990 aC 99; Elahi Cotton Mills Ltd. and others v. Federation of Pakistan and others (1997) 76 Tax 5; Government of Pakistan and others v. Muhammad Ashraf and others PLD 1993 SC 176; Pakistan Tobacco Company Ltd.'s case 1999 SCMR 382; Shervani Sugar -Syd:-ate Ltd. v. 'Union of India and another AIR 1979 All. 394; Express Newspaper (Pvt.) Ltd. v. Union of India AIR 1958 SC 578; Stone v. Farmers Loan and Trust & Co. (1885) 116 US 307; Ontario v. Attorney­ General for the Dominion 1896 AC 348; Saghir Ahmed v. State of U.P. AIR 1954 SC 728; Black's Law Dictionary; Legal Thesaurus by William C. Burton; Ballentine's Law Dictionary; Messrs Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh and others AIR 1954 SC 224 and Government of Pakistan and others v. M. Ashraf PLD 1993SC 176 ref.

Farogh Naseem and Fazle Ghani Khan for Petitioners.

Syed Tariq Ali, Federal Counsel and Raja . Qureshi, A.-G., Sindh for Respondents.

Naraindas C. Motiani and Muhammad Farid for the Intervenor.

Date of hearing: 27th March. 2003.

2003 C L C 1125

[Karachi]

Before Sabihuddin Ahmed and Syed Ali Aslam Jafri, JJ

Mst. AMINA BAI and others---Petitioners

Versus

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

Constitutional Petition No.3306 of 1993, decided on 31st January, 2003.

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

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recalling of earlier order---Misstatement before High Court--­Contempt of Court proceedings, initiation of---Authorities filed written statement wherein misstatement had been made by them ---Effect--­Petitioner might have withdrawn the petition under the bona fide belief that the Authorities were alive to and interested in performing their duty, and such belief was caused by a false statement---High Court directed that the earlier order needed to be recalled and the case be decided on merits---High Court further directed the official condemner to appear in person and show cause why action under the Contempt of Court Act, 1976, not be taken against him for making a deliberately false statement in the parawise comments before the High Court.

Saalim Salam Ansari for Petitioners.

Rasheeduddin Ahmed for Respondent No. 1.

Suleman Habibullah, A.A.-G.

Date of hearing; 31st January, 2003

2003 C L C 1139

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

NAMA LIKA SILK INDUSTRIES---Plaintiff

Versus

Messrs ULTIMATE DRIVING MACHINE and others---Respondents

Suit No.517 of 2001,.decided on (sic).

(a) Civil Procedure Code (V of 1908)---0

----O. VIII, Rr. 1 & 9---Written statement can be filed in three situations---.Defendant can file three types of written statements: as of right without any formal permission of Court; when required by Court to be filed and by leave of Court.

Sardar Sakhawatuddin v. Muhammad Iqbal 1987 SCMR 1365 and Secretary, Board of Revenue, Punjab v. Khalid Ahmed Khan 1991 SCMR 2527 fol.

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

----O. VIII, R. 10 & O. XVII, R.3---Interpretation---Order VIII, R.10, C.P.C. is a penal provision, which would be strictly construed and its requirements would have to be established like those of O.XVII, R.3 being similarly penal in nature---Reasonable doubt arising regarding its interpretation or implementation, would be resolved in favour of the victim of its application.

Sardar Sakhawatuddin v. Muhammad Iqbal 1987 SCMR 1365 and Industrial Sales and Service, Karachi and another v. Archifar Opal Laboratories Ltd., Karachi PLD 1969 Kar. 418 fol.

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

----O. VIII, R. 10---Written statement required by Court---Failure to file same---Effect---Judgment would be pronounced against defendant only, if same could be done under the law---Examples illustrated.

Sardar Sakhawatuddin v. Muhammad Iqbal 1987 SCMR 1365 and Secretary, Board of Revenue, Punjab v. Khalid Ahmed Khan 1991 SCMR 2527 fol.

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

----O. VIII, R. 10---Before making a written statement---Penal consequences---Pre-conditions---Before making a written statement subject to penal R.10, O.VIII, C.P.C., there must be proof on record that Court had "required" same by application of mind to the need and that too by a speaking order---Adjournments granted for production of written statement, which could be filed as a right under O. VIII, R.1, C.P.C. or which was permitted under R.9 of O.VIII, C.P.C. would not satisfy the law regarding the "requirement" of Court---Only written statement required by the Court would entail penal consequences of O.VIII, R. 10, C.P.C.

Sardar Sakhawatuddin v. Muhammad Iqbal 1987 SCMR 1365 and Secretary, Board of Revenue, Punjab v. Khalid Ahmed Khan 1991 SCMR 2527 fol.

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

----O. VIII, R. 10---Sindh Chief Court Rules (O.S.), R.157---Written statement---Failure to file written statement within four weeks time allowed by Court---Plaintiff on account of such failure of defendants sought pronouncement of judgment against them---Held: Requirements for pronouncement of judgment under O.VIII, R.10, C.P.C., not fulfilled---Not a fit case for exercise of discretion by pronouncing judgment against defendants---High Court dismissed plaintiff's application.

Sardar Sakhawatuddin v. Muhammad Iqbal 1987 SCMR 1365 and Secretary, Board of Revenue, Punjab v. Khalid Ahmed Khan 1991 SCMR 2527 fol.

Faisal Daudpota for Plaintiff.

A. Haleem Siddiqui for Defendants Nos. 1 and 2.

Abdul Qayoom Abbasi for Defendant No.3.

2003 C L C 1156

[Karachi]

Before Shabbir Ahmed, J

BEGUM HAFIZUNNISA QURESHI and others---Plaintiffs

Versus

Shaikh MUHAMMAD HUSSAIN and others---Defendants

Suit No.333 of 1992, decided on 31st December, 2001.

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

----O. VII. R.11---incompetent suit---Duty of parties of draw Court's attention to same by way of application to reject plaint---Principles.

It is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent the parties to the suit are at liberty to draw Court's attention to the same by way of an application. The Court can and in most cases hear counsel on the point involved in application.

The principles involved are two-fold, in the first place, it contemplates that a still born suit should be properly buried, at its inception, secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may find a properly constituted suit.

One of the objects of exercise of powers in terms of O.VII, R.11 is that an incompetent suit should be laid to rest at the earliest moment, so that no further time is wasted on the matter, which is bound to collapse being not permitted by law.

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

----S. 92---Trusts Act (II of 1882), S.6---Private and public trust--­Distinction---Beneficiaries in private trust are specific individuals i.e. ascertained persons or capable of being ascertained---Beneficiaries in public trust are general public or a class thereof incapable of ascertainment.

Deok Nandan v. Murlidhar AIR 1957 SC 133; Haji Muhammad Nabi Shirazi and others v. Province of Bengal and others AIR 1942 Cal. 343 and Umesh Chandra Banik and others v. Rai Shahed Abinash Chandra Bhattacherjee and others PLD 1968 Dacca 124 fol.

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

----S. 92---Trusts Act (II of 1882), S.6---Private or public trust---Test to determine its nature---One has to refer to the object of trust contained in deed of trust.

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

----S. 92---Proceedings involving trust or its property---Permission of Advocate-General in terms of S.92, C.P.C.---Mandatory--­Absence of such permission would render suit ab initio incompetent.

Pramatha Nath Mullick v. Pradhyumma Kumar Mullick and another AIR 1925 PC 139; Janaki Bai Animal v. Sri Triuchitrambala Vinayakar of Melman AIR 1935 Mad. 825; Raje Anandrao v. Shamrao AIR 1961 SC 1206: Mehboob Elahi v. K.K. Idrees PLD 1955 Lah. 242; Charan Singh and another v. Darshan Singh and others AIR 1975 SC 371 and Mulvi Muhammad Ishaq and another v. The P.O.F. Cooperative House Building Society, Wah Cantt 1989 SCMR 1052 ref.

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

----S. 92---Suits for enforcement of private rights---Not governed by S.92, C.P.C.---Private rights beyond scope of S.92, C.P.C. illustrated.

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

----S. 92---Suit relating to public charities---Maintainability---Whether suit or proceedings fall under S.92, C.P.C., depends not upon character in which plaintiff sues, but upon nature of relief sought---Substance and not the form of suit must be looked at for such purpose---Contents of plaint would determine maintainability of suit and attraction of bar contained in S.92, C.P.C.

Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD 1989 SC 283 fol.

(g) Limitation---

----Question of---Mixed question of law and fact---Could not be resolved without evidence.

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

----S. 11 & O. VII, R.11---Second application for rejection of plaint--­Principle of res judicata---Applicability---First application not disposed of on merits, but dismissed for non-prosecution---Such dismissal could not be a bar for second application on ground of constructive res judicata.

Tariq Mahmood Chaudhry, Kamboh v. Najam-ud-Din 1999 SCMR 2396 ref.

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

----S. 92---Constitution of Pakistan (1973), Art. 185(3) & 199---Suit relating to public trust---Maintainability---Contention that matter remained subject-matter of Constitutional petition and petition for leave to appeal before Supreme Court, wherein observations had been made that controversy raised being subject-matter of suit should be decided therein, thus, suit should proceed on merits---Validity---Observations for decisions on points raised in Constitutional petition would not make suit maintainable, if same was otherwise not maintainable.

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

----O. VII, R.11(d)---Rejection of plaint---Recording of evidence--­Necessity---Where suit was barred for want of mandatory requirement of law, then exercise in recording evidence would be an exercise in futility.

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

----S. 92---Maintainability of suit in terms of S.92, C.P.C. must be examined to avoid further delay and provide an opportunity to plaintiff to retrace and if permissible in law, to file a properly constituted suit.

(l) Estoppel---

----No estoppel against statute.

(m) Administration of justice---

---- If it is found by Court that a party, which law and is openly a stranger and comes to matter, then he cannot be allowed to lay following requisite course.

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

----S. 92---Suit relating to public charities---Essential conditions to be fulfilled stated.

In order to file a suit under section 92, C.P.C., these conditions must be fulfilled: (i) there must exist a trust for a public purpose of a charitable or religious nature; (ii) the suit must be a representative one' on behalf of the public and not for the assertion of personal rights of plaintiff; (iii) the relief claimed must be one of the reliefs enumerated in section 92; (iv) the suit filed without consent/permission of Advocate-General is not competent, plaint is to be rejected/suit is to be dismissed.

Fakir Shah and others v. Mehtab. Shah Pir Bukhari Masjid Committee and others PLD 1989 SC 283; Kathiawar Cooperative Housing Society Limited through General Secretary v. Macca Masjid Trust through Secretary and 9 others 2000 CLC 1182 and Mian Jan v. Fakir Muhammad PLD 1960 Kar. 420 fol.

M. Aziz Malik for Plaintiffs.

Khalid Javed Khan for Defendants.

Date of hearing: 20th December, 2001.

2003 C L C 1183

[Karachi]

Before Shabbir Ahmed, J

GULFAM and others---Plaintiffs

Versus

BIBI QUDSIA BEGUM---Defendant

Suit No.813 of 1992 and Suit No.776 of 1990, decided on 27th January, 2003.

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

----Ss. 7 & 18(1)(a) [as amended by Sindh Civil Courts (Amendment) Ordinance (XXX of 2002), Ss.2 & 3]---Civil Procedure Code (V of 1908), S.24---Sindh Civil Courts (Amendment) Ordinance (XXX of 2002), S.5---High Court of West Pakistan (Establishment) Order (XIX of 1955), Para.5---Consolidated suits pending in High Court---Transfer of one suit having valuation of Rs.4,50,000 to District Court by virtue of S.5 of Sindh Civil Courts (Amendment) Ordinance, 2002---Scope---Suit having such less jurisdictional value pending in Civil Court was transferred to High Court to be tried with a suit having jurisdictional value of Rs.37,20,000 pending in respect of same property---Both suits would retain their identity notwithstanding consolidation---Former suit would not be affected by S.5 of Sindh Civil Courts (Amendment) Ordinance, 2002, which had been transferred to High Court due to pendency of later suit in High Court only to avoid conflict of decisions from a Court of still having unlimited pecuniary jurisdiction---High Court would try both such suits.

(b) West Pakistan Civil Courts Ordinance (II of 1962)---

----Ss. 7 & 18(1)(a) [as amended by Sindh Civil Courts (Amendment) Ordinance (XXX of 2002), Ss. 2 & 3]--- High Court of West Pakistan (Establishment) Order (XIX of 1955), para. 5---Amendment introduced in Ss.7 & 18(1)(a) of Vest Pakistan Civil Courts Ordinance, 1962 by Sindh Civil Courts (Amendment) Ordinance, 2002---Scope and effect--­Original pecuniary jurisdiction of District Judges and Civil Judges at Karachi and also- appellate jurisdiction of District Judges against decree/order passed by Civil Judges at Karachi had been raised up to Rs.30,00,000---Appellate jurisdiction of District Judge other than Karachi against decree/order passed by Civil Judge was unlimited---All suits, appeals and other proceedings of valuation above Rs.30,00,000 pending in High Court including its Benches, would stand transferred to respective Courts conferred with jurisdiction.

(c) High Court of West Pakistan (Establishment) Order (XIX of 1955)---

----Para. 5---Civil Procedure Code (V of 1908), Ss. 16, 17, 20 & 120--­Original civil jurisdiction, of High. Court Bench at Karachi---Provisions of Ss.16, 17 & 20, C.P.C., not applicable to High Court in exercise of such jurisdiction.

(d) High Court of West Pakistan (Establishment) Order (XIX of 1955)---

----Para. 5---Sindh Courts Act (II of 1926), S.8---Original civil jurisdiction of High Court Bench at Karachi---Not an ordinary civil original jurisdiction, but of a special nature---Extends to Civil District of Karachi.

Firdous Trading Corporation and others v. Japan Cotton General Trading Co. PLD 1961 Kar. 565; Pakistan Fisheries Ltd. v. United Bank Ltd. PLD 1993 SC 109; West Pakistan Industrial Development Corporation v. Messrs Fateh Textile Mills PLD 1964 Kar. 11; Messrs Agricides (Pvt.) v. Messrs Ali Agro Supply Corporation 1988 CLC 59 and Mahboob Ali Soomro v. Sindh Road Transport Corporation 1999 CLC 1722 ref.

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

----Ss. 120, 16, 17 & 20---Original civil jurisdiction of High Court--­Subject to discretion of Court itself, technicalities in Ss. 16, 17 & 20, C.P.C., could not be pressed into service to divest High Court of its original civil jurisdiction---Ingredients necessary to attract such jurisdiction stated.

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

----S. 24---Consolidation of suits---Effect---Both suits would retain their identity notwithstanding consolidation.

Iqbal Kazi for Plaintiff (in Suit No.776 of 1990).

Jhamat Jethanand for Plaintiff (in Suit No.813 of 1992).

Date of hearing: 13th January, 2003.

2003 C L C 1196

[Karachi]

Before Shabbir Ahmed and Muhammad Sadiq Leghari, JJ

Messrs AHMED CLINIC---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No.D-3228 of 1993, decided on 14th January, 2003.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Alternate remedy, availing of---Principles---Where impugned actions are completely without jurisdiction, mala fide, unlawful and passed in flagrant disregard of the law and principles of natural justice, the same amount to denial of justice---Not necessary to avail alternate remedies in such matters---Aggrieved party can invoke the Constitutional jurisdiction in circumstances.

Subedar (Retd.) Malik Ghulam Hussain v. Jamil Ahmed Khan 1993 MLD 521; St. Jude's Secondary School and others v. Employees Old Age Benefits Institution and another 1988 PLC 746 and Mst. Karim Bibi and another v. Deputy Commissioner/Collector, Rahimyar Khan and 8 others 1999 SCMR 2774 ref.

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

----Art. 199---Constitutional jurisdiction of High Court---Judicial review---Object and scope---Judicial quest, in administrative matters had to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy---Such matters were not essentially justiciable and the need to remedy any unfairness was set right by judicial review---Restraint on judicial review had two contemporary manifestations: One was the ambit of judicial intervention and the other covered the Court's ability to quash an administrative decision on its merits---Restraints bear hallmarks of judicial control over administrative action---Judicial review was concerned with reviewing not merits of decision, but the decision making process itself---Judicial review was a protection and not a weapon---Duty of Court was to confine itself to the question of legality and to see whether a decision making Authority exceeded its powers; committed an error of law, committed a breach of rules of natural justice; reached a decision which no reasonable Tribunal would have reached or had abused was not to determine whether a particular decision was fair---Court was only concerned with the manner in which those decisions had been taken---Extent of duty to act fairly vary from case to case---Grounds upon which an administrative action was subject to control by judicial review could be classified as illegality which meant that the decision-maker must understand correctly the law that regulated his decision making power and must give effect to the irrationality, namely, unreasonableness and procedural impropriety.

Nottinghamshir County Council v. Secretary of State for the Environment (1986) All ER 199 ref.

(c) Administration of justice---

----"Principle of fair-play"---Defined---Where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without such person being given an opportunity of being heard and of making representation on his behalf.

Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. D. 149 ref.

(d) Maximum---

---"Audi alteram partem"---Applicability---Authorities had passed order of cancellation of plots after the same had been allotted and subleases had been executed in favour of the petitioners---No notice was issued to the petitioners before passing of order of cancellation of the allotments--­Validity---Principle of natural justice enshrined in audi alteram partem had been violated in circumstances.

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

----Art. 199---Specific Relief Act (I of 1877), S.39---Constitutional jurisdiction---Scope---Maintainability---Cancellation of instrument---Any person desiring cancellation of an instrument should file suit for the purpose in terms of S.39 of Specific Relief Act, 1877---If the cancellation is otherwise than as provided under the law, that aggrieved party is entitled to invoke the Constitutional jurisdiction of High Court.

The Majlis-i-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore PLD 1963 SC 109 and Mrs. Zaibun Nisa v. Karachi Development Authority PLD 1998 Kar. 348 ref.

(f) General Clauses Act (X of 1897)---

----S. 21---Principle of locus poenitentiae---Object and scope--Existence of such power is necessary with all Authorities empowered to pass orders to retrace the wrong steps taken by them---Authority that has power to make an order has also the power to undo it---Such power is 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 cannot be withdrawn or rescinded to the detriment of those rights---Principle of locus poenitentiae, like principle of natural justice, is principle of equity---Once it is established that a decisive step has been validly taken by the Authority/Executive Functionaries which are un-retraceable then right in favour of such person cannot be withdrawn or rescinded to the detriment of those rights.

Chairman, Selection Committee/Principal, King Edward Medical College v. Wasif Zamir 1997 SCMR 15 ref.

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

----S. 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Principle of locus poenitentiae---Applicability---Cancellation of allotment---Grievance of the petitioners was that after allotment of plots, sub-leases had been executed in their favour and possession was handed over to them when the Authorities had cancelled the allotments---Further plea of petitioners was that registration of sub-leases on valuable consideration by the Authorities, vested right was created in favour of the petitioners and Authorities could not withdraw such right subsequently even on the rule of locus poenitentiae which was principle of equity---Actions/orders could not be undone or withdrawn if had taken legal effect and had created certain rights in favour of individual---Order of cancellation of allotment was set aside by High Court in exercise of jurisdiction under Art. 199 of the Constitution---Petition was allowed in circumstances.

Habib Bank Limited v. Board of Trustees of Abandoned Properties, Cabinet Division, Government of Pakistan 1994 MLD 751; Sartaj Hussain v. Assistant Administrator, Evacuee Trust Property, Hyderabad and others 1994 MLD 2195; Basanka Lal Bank v. Islamic Republic of Pakistan PLD 1958 SC 187; Federation of Pakistan and 2 others v. Maj. (Retd.) Muhammad Sabir Khan PLD 1991 SC 476 and Samit Ali Khan v. Dr. Mrs. Zainab Irshad and 6 others PLD 1997 Kar. 450 ref.

Miss Sana Minhas for Petitioners.

Abbas Ali, Addl. A.-G. for Respondent No.2.

Arif Bilal Sherwani for Respondent No.3

Muneer A. Malik on behalf of Farooq H. Naek for Respondent No.4.

Dates of hearing: 22nd October and 14th November, 2002.

2003 C L C 1216

[Karachi]

Before S. Ali Aslam Jaffery, J

MUHAMMAD AFSAR KHAN and 2 others---Plaintiffs

Versus

Dr. GHAFOOR MEDICAL CENTRE through Medical Director and 2 others---Defendants

Suit No.510 and Civil Miscellaneous Application No.2628 of 2003, decided on 12th May, 2003.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Suit for recovery of damages on account of professional negligence and medical malpractice committed by defendant--­Application by plaintiff praying for giving direction to Nazir of Court to attach and take into custody documents mentioned therein lying in possession of defendant and keep them in safe custody for being produced in Court at time of evidence or as and when required---Plaintiff in his affidavit also stated that his case was mainly based on such documents, which were necessary for its effectual decision, thus,, he apprehended tampering or misplacement of such documents at the hands of defendant in order to defeat plaintiff's case---High Court allowed application and directed Nazir of the Court to attach and take into custody such documents and to seal them and keep them in safe custody till further orders.

Civil Suit Nos. 1329 of 2001 and 495 of 2003; Hajra Begum v. Agha Khan University Hospital PLD 1995 Kar. 603 and Raghunath G. Raheja v. Maharashtra Medical Counsel and others AIR 1996 Bom. 198 ref.

Nasir Maqsood for Plaintiffs.

2003 C L C 1333

[Karachi]

Before Mushir Alam, J

ABDUL KARIM --- Plaintiff

Versus

Messrs NOORI TEXTILE MILLS LTD. and another---Defendants

Suit No. 540 of 2002, decided on 11th December, 2002.

Civil Procedure Code (V of 1908)---

----O. XL, R. 1---Appointment of receiver sought in respect of property already subject-matter of mortgage decree passed in favour of Bank--­Validity---Official Assignee had already been appointed to take over possession of mortgaged property and to dispose the same in terms of order passed in execution of such decree---Plaintiff's right in suit was subservient to right and interest of mortgagee particularly holding a mortgage decree ---Intervenor had claimed only damages for breach of contract---Application for appointment of receiver being frivolous was dismissed with costs.

Luqman-ul-Haque for Plaintiff.

Muhammad Sharif and Adnan Karim for Defendants.

Date of hearing: 11th December, 2002.

2003 C L C 1360

[Karachi]

Before Anwar Mansoor Khan, J

MUHAMMAD ABDULLAH and another---Plaintiffs

Versus

Messrs KARACHI CUSTOMS AGENTS GROUP, CUSTOM HOUSE, KARACHI and 3 others---Defendants

Suit No.1227, Civil Miscellaneous Applications Nos.7810 and 8034 of 2000, decided on 27th October, 2000.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and injunction---Election dispute--­Last date for filing of nominations was 4-9-2000---Meeting of Scrutiny Committee of defendant was to be held on 5-9-2000---Final list of valid nominations was to be displayed on 8-9-2000---Last date for withdrawal of nominations was 13-9-2000---Plaintiffs by letter dated 5-9-2000 withdrew their nomination papers, but subsequently sought withdrawal of such letter through letters dated 6-9-2000 and 8-9-2000---Defendant displayed final list, wherein against plaintiffs' names was stated "Nomination withdrawn on 5th September, 2000 vide written request"--Aggrieved with such act of defendant, plaintiffs filed suit contending that subsequent letters seeking withdrawal of earlier letter dated 5-9-2000 were within time as being prior to 13-9-2000 (last date of. withdrawal of nominations), thus, their names should have been appeared in final list as valid nominations---Validity---Withdrawal of nominations made by letter dated 5-9-2000 had been considered and accepted by Scrutiny Committee---Subsequent letters for withdrawing letter dated 5-9-2000 were not valid as same would amount to filing a fresh nomination, which might not be allowed after last date of nominations---High Court directed that election be held on existing final list.

Sultan Mawjee and 3 others v. Federation of Pakistan Chamber of Commerce and Industry, Karachi and 3 others PLD 1982 SC 174; Muhammad Bakhsh Rind and another v. Government of Sindh and others PLD 1984 Kar. 334; Abdul Razzique Khan v. Government of Sindh PLD 1994 SC 79 and Abdul Razzique Khan v. Government of Sindh PLD 1993 Kar. 286 ref.

Khalid Latif for plaintiff.

Munir A. Malik alongwith Ziaul Haq Makhdoom for Defendants Nos. 1, 2 and 3.

Khalid Javed for Defendant No.4.

2003 C L C 1461

[Karachi]

Before Saiyed Saeed Ashhad, C. J. and Ghulam Rabbani, J

MUHAMMAD ALTAF NIZAMI---Petitioner

Versus

FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN through Secretary Defence and 5 others---Respondents

Constitutional Petition No. 1219 of 2002, decided on 16th August, 2002.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Complicated questions---Scope--­High Court while exercising jurisdiction under Art. 199 of the Constitution could not resort to decide intricate, complicated and disputed questions of facts, nor would proceed to record evidence in the case.

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

----Art. 199---Constitutional petition---Prayer in Constitutional petition for re-induction into shop from which petitioner had been dispossessed--­Maintainability---Petitioner had adequate remedy under other laws for seeking such relief---Constitutional petition would not serve the purpose---High Court dismissed petition in limine being not maintainable.

Nisar Ahmed for Petitioner.

Muhammad Sarwar Khan, Addl. A.-G

2003 C L C 1470

[Karachi]

Before Muhammad Roshan Essani and Mushir Alam, JJ

Mst. KULSOOM BANO---Petitioner

Versus

ADAM and others---Respondents

Constitutional Petition No. D-2056 of 2002, decided on 7th February, 2003.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O.XVII, R.3---Specific Relief Act (I of 1877), Ss.8 & 54---Constitution of Pakistan (1973), Art.199---Constitutional petition---­Suit for possession, permanent injunction and mesne profits---Closing of evidence---Plea of fraud and misrepresentation-- -Respondent, the owner of house in question asked petitioner to vacate house, but petitioner not only declined to vacate the house, also filed a suit against respondent which suit was dismissed by Trial Court under O.XVII, R.3, C.P.C.--­Respondent also filed suit against petitioner for possession, permanent injunction and mesne profits which suit was decreed by the Trial Court--­Petitioner did not file any appeal against judgment and decree passed against her in either of the suits and instead filed application under S.12(2), C.P.C. which also was dismissed by the Trial Court and revision filed by petitioner against judgment of Trial Court was also dismissed on ground of limitation---No plausible explanation was put forth by the petitioner as to why appeal against judgment and decree passed against her were not filed---Provisions of S.12(2), C.P.C. were not to be resorted as a substitute of an appeal when petitioner was very much a party to the proceedings before the Trial Court---Petitioner's case was not that she was not served or that judgment and decree was obtained by respondent behind the petitioner---Constitutional petition by petitioner against judgment and decree of Courts below, being not maintainable, was dismissed.

Muhammad Ismail v. Fazal Zada PLD 1996 SC 246 ref.

Muhammad Kalim Ahmed and Fahmida Khatoon for Petitioner.

Nemo for Respondents.

Date of hearing: 7th February, 2003.

2003 C L C 1481

[Karachi]

Before Khilji Arif Hussain, J

Haji GHOURI---Applicant

Versus

YAR MUHAMMAD CHANDIO and 16 others---Respondents

Judicial Miscellaneous No.45 of 2000 and Civil Suit No. 1005 of 1996, decided on 20 November, 2002.

Civil Procedure Code (V of 1908)---

---S. 12(2)---Fraud and misrepresentation---Application against--­Applicants claimed interest in respect of suit-land in their possession on basis of Sanad issued by Competent Authority in favour of the applicants---Suit filed by respondent in respect of land in question was decreed in absence of applicants---Decree in respect of suit-land apparently having been obtained by respondent by misrepresentation, same was liable to be set aside---Application filed by applicants under S.12(2), C.P.C. was granted and judgment and decree passed was set aside---Respondent was directed to file amended plant joining applicants as defendants who would file written statement within specified period.

Muhammad Ikram Siddiqui for Applicant.

Zahid Sohrab Khan for Respondents.

2003 C L C 1492

[Karachi]

Before Muhammad Ashraf Leghari, J

GHULAM MUHAMMAD ---Petitioner

Versus

ANSAR AHMED and others---Respondents

Civil Petition No.395 of 2000, decided on 7th March, 2003.

(a) Guardians and Wards Act (VIII of 1890)---

----Ss. 25 & 47---West Pakistan Family Courts Act (XXXV of 1964), Ss.5, 14(1)(b) & Sched.---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Custody of minor---Order passed by Family Court/Senior Civil Judge---Appeal against such order would lie before District Judge and not before the High Court as provisions of West Pakistan Family Courts Act, 1964 had overriding effect upon provisions of Guardians and Wards Act, 1890---Even under new proviso to S.47 of Guardians and Wards Act, 1890, such appeal would lie before the District Court---Constitutional petition would not lie before High Court in any manner.

Mst. Zubeda Naz v. Asif Rashid Minhas and another PLD 1999 Quetta 29 ref.

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

----S. 9---Specific Relief Act (I of 1877), S.42---Guardians and Wards Act (VIII of 1890), S.25---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Custody of minor (girl)---Dispute with regard to parentage of minor---Question whether the matter fell within the jurisdiction of Civil Court or Family Court---Declaration on the correct parentage of minor could be given by civil Court after examining evidence of both the parties---Custody of minor would be decided on the basis of ha age by proper forum-If minor had become major or was sufficiently grown up, then in such event, question of custody would be resolved upon her statement.

Ashraf Ali Butt for Petitioner.

Dilawar Hussain for Respondents.

Date of hearing: 5th March, 2003.

2003 C L C 1505

[Karachi]

Before Muhammad Ashraf Leghari, J

Syed ZAFAR ALI SHAH---Petitioner

Versus

ASIF JATOI---Respondent

Senate Appeal, decided on 3rd February, 2003.

Conduct of General Elections Order, 2002 [Chief Executive's Order No.7 of 2002]----

----Arts. 8-A & 11(2)(e)---Senate (Election) Act (LI of 1975), S.13(5)(6)---Senate election---Educational qualification of candidate--­Acceptance of nomination papers of respondent on the basis of a letter issued by a foreign school of communication---Contention of appellant was that such letter could not be termed as degree of B.A., rather same was mere an intimation---Validity---Educational qualification of candidate was prerequisite for contesting senate election---Contention of respondent that simple statement by candidate for educational qualification would be sufficient to fulfil requirement of law and no certificate was required to be produced, had no force---Higher Education Commission (University Grants Commission) had opined that status of degree could not be authenticated through a letter in absence of degree---Such letter postulated that respondent had completed requirement of B.A. Degree in communication, and diploma would be awarded within six months---Such letter nowhere mentioned that respondent had cleared his graduation and was possessing Degree of Bachelor in any subject---Respondent showed his inability to produce at least a letter from the University to the effect that he had cleared his graduation certificate in this regard would be issued to him in due course time---Respondent was not possessing a Graduation Degree as required by law, thus, was disqualified under Art. 8A of Conduct of General Elections Order, 2002---Election Commission set aside impugned order and rejected nomination papers of respondent.

Ejaz Ahmed Shaffi v. Federation of Pakistan and others C.P. No.1615 of 2002; Zafarullah Khan Domki v. Saleem Jan Khan Mazari and others C.P. S. No 1658 of 2002; Syed Ali Bux Shah v. The Election Tribunal and others C.P. No.1626 of 2002; Abubakar Shekhani v. The Election Tribunal and others C. P. No. 1673 of 2002; Ghulam Akbar Lasi and others v. Returning Officer for NA-270 Awaran-cum-Lasbella at Uthal and another PLD 2003 Quetta 1 and Waqas Akram v. Dr. Muhammad Tahirul Qadri and others 2003 SCMR 145 distinguished.

S. Zafar Ali Shah for Appellant.

Agha Faisal for Respondent No.1.

S. Zaki Ahmed, D.A.-G.

Date of hearing: 3rd February, 2003.

2003 C L C 1521

[Karachi]

Before Gulzar Ahmad, J

Mrs. SHAMIM AKHTAR and others---Appellants

Versus

Mrs. SULTANA MAZHAR BAQAI and 5 others---Respondents

Revision Application No.40 of 2001, decided on 31st March, 2003.

(a) Islamic Law---

----Succession---Gift---Making nomination in respect of property--­Validity---Nomination, unless amounted to a valid gift inter vivos, cannot pass title in property to nominee nor can give right to nominator to change Law of Succession, which would be applicable in case of his death---Nomination cannot operate as a valid gift under Islamic Law as gift, in order to confer title on donee, must be accompanied by delivery of possession of the property gifted--- Nomination does not stop succession of estate of deceased to his legal heirs as per succession law applicable to him.

Mst. Amtul Habib v. Mst. Musarrat Parveen PLD 1974 SC 185 ref.

(b) Limitation Act (IX of 1908)---

----Arts. 120 & 142---Specific Relief Act (I of 1877), S.42---Suit for declaration and possession---Limitation---Plaintiff in order to get relief of possession had to secure relief of declaration of ownership---Such suit would be governed by Art. 120 of Limitation Act, which applied to declaration of ownership---Main relief in suit was not for possession, thus, Art. 142 of Limitation Act, 1908 providing twelve years time for filing suit, would not be applicable to such case.

Dehli Cloth and General Mills Company Ltd. v. Federation of Pakistan PLD 1964 Lah. 444; Chandi Prasad v. Awadh Narain Jal AIR 1952 Pat. 143; Pun Aung v. Briajlal AIR 1923 Rang. 11; Randutt Ramkissen Dass v. E.D. Sassoon & Company AIR 1929 PC 103 ref.

Muhammad Akbar Shah v. Muhammad Yousuf Shah PLD 1964 SC 329 fol.

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

----S. 42---Limitation Act (IX of 1908), Arts. 120 & 142---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration of ownership and possession---Rejection of plaint being time-barred--­Plaintiff claimed transfer of shop in his favour as nominee of his deceased brother, while defendant being daughter of deceased asked for its transfer to her as heir of deceased-- -Housing Society gave award in favour of defendant, over which plaintiff filed such suit---Trial Court on application filed by defendant under O.VII, R.11, C.P.C., rejected plaint being time-barred---Appellate Court set aside such order--Validity--­Main claim of plaintiff was of ownership and claim for possession was merely consequential relief---Until right to possession was established, no question of allowing relief of possession would arise---Limitation period for filing suit for declaration of ownership of disputed shop would be governed by Art. 120 of Limitation Act, 1908 providing six years from the date when right to sue accrued---Right to sue had accrued to the plaintiff on 27-1-1969, when his brother died or on 19-3-1969 when---Society refused to transfer shop in his favour on basis of inheritance or further on 25-3-1969, when Society asked for production of Letter of Administration and finally on 27-3-1969, when possession of shop was transferred to defendant---Plaintiff had himself claimed in plaint that cause of action had accrued to him on 25-3-1969---Suit filed by plaintiff in year 1991, thus, was hopelessly-time-barred---Appellate Court without examining contents of plaint or discussing its effect had decided matter merely on basis of case-law without at all examining whether such case­-law was applicable to the facts of the case or not---High Court accepted revision petition, set aside impugned judgment and restored that of trial Court.

Muhammad Akbar Shah v. Muhammad Yousuf Shah PLD 1964 SC 329; Muhammad Mubarak Hu6sain Siddiqui v. Saajjad Hussain PLD 1992 Kar. 167; Asghar Ali v. P.K. Shahani 1992 CLC Shafaatullah Qureshi v. Federation of Pakistan 1999 CLC 364; State Insurance Corporation of Pakistan v. Mst. Safia Begum 2001 CLC 408; Raja Karamatullah v. Sardar Muhammad Aslam Sukhera 1999 1892; 1999 YLR 1694; AIR 1935 Bom. 91 and Allah Bux v. Dr. Waheed PLD 1996 Kar. 458 ref.

Tasawar Ali Hashmi for Applicants.

Shahanshah Hussain for Respondents Nos. 1 to 4.

Nemo for Respondents Nos.5 and 6.

Date of hearing: 7th November, 2002.

2003 C L C 1551

[Karachi]

Before Saiyed Saeed Ashhad, C. J. and S. Ali Aslam Jafri, J

TEXTILE PLAZA OWNERS ASSOCIATION ---Petitioner

versus

KARACHI BUILDING CONTROL AUTHORITY---Respondent

Constitutional Petition No.D-1813 of 2002, decided on 21st January, 2003.

Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance (VIII of 2002)---

----S. 5---Sindh Buildings Control Ordinance (V of 1979), S.6--­Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Notices for removal of unauthorized construction---Petitioner prayed for giving direction to respondent to receive its application for grant of permission to construct shed for car parking---Respondent made statement in writing that building in question had been constructed before enforcement of Sindh Building Control Ordinance, 1979; and if revised building plan for any fresh construction was filed by petitioner, same would be decided as per rules and regulations after demolition of present unauthorized construction as Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 did not provide for any relief in respect of new/fresh construction raised in violation of or without approved plan---Petitioner did not controvert such statement of respondent---High Court dismissed Constitutional petition with observation that petitioner would be at liberty to avail the offer made by respondent, who would perform their statutory duties without creating unnecessary delay in the matter.

Nisar A. Mujahid for Petitioners.

Shahid Jamiluddin Khan for Respondent.

Rashiduddin Ahmad Khan for Contemners.

Date of hearing: 21st January, 2003.

2003 C L C 1559

[Karachi]

Before S. Ali Aslam Jafri, J

Mst. SHAHANA KHAN---Petitioner

versus

Mst. KHALIDA PARVEEN---Respondent

Revision Application No. 33 of 2002 , decided on 14th April, 2003

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

----S. 115---Revision---Scope---Revision petition against judgment/decree passed in appeal---Non-filing of certified copy of decree---Legal defect would result in dismissal of revision, unless exempted or time extended by Court to file same under circumstances of a particular case.

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

----Ss. 2(2), 96 & 100---Decree---Operative part of a judgment in civil suit or civil appeal---Appeal is to be filed against decree.

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

----S. 115---Court Fees Act (VII of 1870), S.4---Revision petition not filed with proper court-fee during specified time of 90 days would not be maintainable.

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

----Ss. 8 & 12---Qanun-e-Shahadat (10 of 1984), Arts. 17(2) & 117---Suit for possession---Agreement to sell---Proof---Plaintiff filed such suit. on defendant's refusal to vacate suit house occupied as licensee--­Defendant's plea was that her husband had orally gifted suit house to her, who was in possession thereof in part performance of agreement to sell executed in his favour by plaintiff---Trial Court decreed the suit, which was upheld by Appellate Court---Validity---Plaintiff had denied execution of agreement to sell---Burden was, thus, lying on defendant to prove execution of agreement, which she had failed to discharge---Defendant was not party to agreement---Defendant's husband as D.W. had admitted not to have filed suit for specific performance of agreement against plaintiff---ion-filing of suit for specific performance was a very important and relevant factor, which could not be ignored---Attesting witnesses of agreement had not been examined---View of Courts below that execution of alleged agreement by plaintiff was not proved, was unexceptionable---No right had, thus, accrued to the defendant's husband entitling him to alienate suit house by way of gift in her favour---High Court dismissed revision petition with costs.

Muslim Commercial Bank Ltd. and 2 others v. Muhammad Umar Malik PLD 1993 Lah. 281; Gul Muhammad Shah and another v. Shahak Dad 1993 CLC 1547; Muhammad Amin v. Muhammad Yasin and another 2002 CLC 231; Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 and Tanveer Mahboob v. Haroon and 12 others 2002 MLD 1901 ref.

(e) Court Fees Act (VII of 1870)---

----Ss.4 & 6---Court-fee payable on suits or appeals---Duty of Ministerial Officer of the Court to check suit or appeal in all respects before putting up same before Judge for admission or otherwise.

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

----0. XX, R.6(2) & XLI, R.35(3)---Non-preparation of decree in suit and appeal for a long time---Non-appending memo. of costs at the time of preparation of such decree---Such course violative of statutory provisions of Appendix "D" to O.XX, R.6(2) & O.XLI, R.35(3), C.P.C.

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

----Ss. 96 & 115---Sindh Chief Court Rules (O.S.), Chapt. XII, 8.188--­Court Fees Act (VII of 1870), S.12---Non-payment of court-fee on appeal---High Court in revision proceedings detected such fact---High Court directed the Appellate Court to check its record, and if found that no court-fee or deficient Court-fee had been paid on appeal, then invoke provisions of S.12 of Court Fees Act, 1870 and take disciplinary action against the concerned officials---High Court advised the Deputy Registrar of the Court to be careful in future to see that court-­fee had been calculated and affixed on memo. of appeals and revisions etc.

S. Abdul Waheed for Petitioner.

S. Muhammad Haider for Respondent.

Dates of hearing: 14th and 27th November, 2002.

2003 C L C 1581

[Karachi]

Before Atta-ur-Rehman, J

Mst. NAZIRA BIBI---Petitioner

versus

VTH ADDITIONAL DISTRICT JUDGE, KARACHI EAST and 2 others---Respondents

Constitutional Petition No.618 of 2002, decided on 24th October, 2002

Sindh Rented Premises Ordinance (XV1l of 1979)---

----S. 15---Bona fide personal need of landlady ---Ejectment application was filed by landlady through her son as attorney and she also thumb ­marked the same---Attorney was co-owner and had stepped into witness­-box to lead evidence on behalf of his mother---Rent Controller dismissed the application being incompetently filed and the order passed by the Rent Controller was maintained by the Appellate Court---Tenant had not suggested in the cross-examination that either the power of attorney was forged or the landlady had deliberately and with mala fide intention failed to appear in the Court and/or that the power of attorney was used to file false case on behalf of the landlady/mother---Effect---Courts below having not discussed the merits of the case there was no reason to hold that the application as filed by the landlady was not maintainable---High Court set aside the orders passed by-the Courts below and remanded the case to Rent Controller for deciding the same on merits after hearing the parties.

Mehmood Alam v. Tehseen Asghar PLD 2001 SC 238 and Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525 ref.

Abdul Aziz Khan assisted by Abdul Qadir for Petitioner.

S.A. Ghaffar for Respondents.

2003 C L C 1616

[Karachi]

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

Agha FAKHRUDDIN KHAN---Appellant

Versus

Messrs RUBY RICE AND GENERAL MILLS---Respondent

High Court Appeal No. 11 of 2000, decided on 10th April, 2003.

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

----O. XXI, R.85---Law Reforms Ordinance (XII of 1972), S.3---Intra­-Court Appeal---Sale in execution, setting aside of---Failure to deposit auction money---Auction of mortgaged property was confirmed in favour of appellant subject to deposit of partial amount within 15 days and to furnish solvent security within the same period of time for the balance amount to be paid within three months from the date of the order--­Appellants, in spite of extension of time by High Court for the payment of balance amount, failed to pay the same---Bid of appellant was accepted conditionally but he failed to fulfil the conditions, therefore, High Court recalled the bid and directed the official liquidator to re­-advertise sale of the property---Plea raised by the appellant in the Intra­-Court appeal was that after acceptance of bid, the appellant had acquired right in the property---Validity---Bid having been accepted conditionally and the appellant having failed to fulfil the conditions, the appellant had not acquired any right or interest in the property so as to question the order passed by High Court---High Court, in Intra-Court appeal, declined to interfere with the order passed by High Court ---Intra-Court appeal was dismissed.

Feroze Din Faiz v. Chaman Lal and others PLD 1953 Lah. 83 ref.

(b) Practice and procedure---

---- Presence, of parties in Court---Non-appearance of case in cause list--­Previous order was passed in presence of appellant and next date was fixed by the Court---Counsel for the appellant was on general adjournment before the next date of hearing, therefore, office did not list the case in the cause list---Effect---Previous order having been passed in presence of the appellant, it was his duty to be present in the Court on the date fixed by Court, even if the case had not appeared in the cause list.

Rashid Akhtar Qureshi for Appellant.

S.I.H. Zaidi for Respondents.

Bashir Ahmad Memon, Official Assignee.

Date of hearing: 10th April, 2003.

2003 C L C 1631

[Karachi]

Before S. Ali Aslam Jafri, J

Mst. KHALIDA FAROOQ---Petitioner

Versus

Mst. MARIAM YOUSUF---Respondent

Constitutional Petition No.S-963 of 2002, decided on 5th April, 2003.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction of High Court is not an alternate of second appeal or revision.

(b) Discretion---

----Discretion of Court or Tribunal---Scope---If a Court or Tribunal has jurisdiction to decide certain issue; the discretion so vested in it should be exercised in accordance with the settled principle of law.

Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246 and Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

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

----Art. 199---Constitutional jurisdiction of High Court ---Scope--­Erroneous decision of Tribunal---Scope---Where Tribunal makes an error of law in deciding matter before it, such matter goes outside the jurisdiction of the Tribunal and, therefore, determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under Constitutional jurisdiction on the ground that the same is in excess of its jurisdiction.

Muhammad Hussain Munir's case PLD 1974 SC 139 and Zulfiqar Khan Awan's case 1974 SCMR 530 ref.

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

----Art. 199---Constitutional petition---Maintainability---Non-availability of right of second appeal---Effect---Where, in appropriate cases, it is shown that determination of Tribunal is erroneous on the point of law, arbitrary or result of non-reading of material on record, High Court can exercise its jurisdiction under Art.199 of the Constitution.

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

----S. 15---Bona fide personal need of landlady--Rent Controller allowed the ejectment petition but the Appellate Court dismissed the same--­Tenant agreed to pay enhanced rent but the landlady declined to accept the same and stated before High Court that the demised shop was required by her for personal bona fide use by her husband---Landlady showed before High Court, her willingness to pay Rs.3,00,000 to the tenant on account of security deposit and payment of electricity charges etc. though she was not liable to pay anything in excess to the amount of security deposit---High Court made the landlady understand the implications of S. 15-A of Sindh Rented Premises Ordinance, 1979, relating to imposition of fine---Effect--Landlady had no intention to re­-let the demised shop to anybody else or to its use for purpose other than that for which she wanted to eject the tenant---High Court in exercise of constitutional jurisdiction set aside the judgment passed by Appellate Court and passed eviction order against the tenant in circumstances.

Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246; Noor Ali and others v. Mst. Sayeda Parveen Iqbal and others 2000 MLD 695; Mst. Hums and another v. Muhammad Ashfaque and others 2001 PLC 325; Suleman Mala and others v. Khawaja Muhammad Ramzan and others 2003 YLR 226 and Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

S.M. Afzal and Tughral Khan Yousuf Zai for Petitioner.

S. Fazalur Rehman for Respondent No. 1.

Dates of hearing: 20th January; 3rd, 17th February and 31st March, 2003.

2003 C L C 1670

[Karachi]

Before Gulzar Ahmed, J

ARBAB ALI and 4 others through Legal Heirs---Petitioners

Versus

NOOR BAKHSH and 4 others---Respondents

Civil Revision No.57 of 1999, decided on 3rd April, 2003.

(a) Colonization of Government Lands (Punjab) Act (IV of 1912)---

----S. 19---Execution of agreement to sell prior to obtaining proprietary rights---Scope---Specific performance of agreement to sell was postponed to a date when the grantees would acquire the proprietary rights--­Effect---Such a reservation in the deed itself showed the awareness of the prohibition, the recognition of its legal effect and an effort on the part of contracting parties to keep themselves well within the confines of law and to act in accordance with the requirements of law---Such agreement to sell was not violative of either the express provisions of S.19 of Colonization of Government Lands (Punjab) Act, 1912, or of the public policy behind such statutory provisions.

Muhammad Sadique v. Muhammad Ramzan 2002 SCMR 1821 rel.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 79---Transfer of Property Act (IV of 1882), S.53-A---Civil Procedure Code (V of 1908), O.VIII, R.1---Specific performance of agreement to sell---Agreement to, sell, proof of---Non-signing of agreement to sell by purchaser---Labelling agreement to sell as forgery in written statement---Plaintiffs asserted that the defendants had received full and final consideration and possession was also handed over to them---Defendants denied execution of the agreement and stated the same as forgery in their written statement--­Trial Court dismissed the suit on the ground of lack of jurisdiction whereas Appellate Court dismissed the appeal holding that agreement was invalid on the ground that it was not signed by the purchaser and there was no acceptance by the purchaser to constitute the agreement--­Validity---Condition prescribed by law for proving the attested document stood fulfilled as both the attesting witnesses' were produced and they admitted execution of the agreement in their presence---Finding of Appellate Court was based on misunderstanding of law and non­-appreciation of evidence on record---Execution of the agreement was proved and its terms and conditions amply demonstrated that the agreement was accepted by the purchaser---Contract for transfer of immovable property under the provisions of S.53-A of Transfer of Property Act, 1882 required signing of the same only by the transferor or on his behalf---Law did not require that the contract should also be signed by the purchaser---Labelling of the agreement as forgery in written statement was not enough as the written statement was not an evidence in law---Judgments and decrees passed by the Courts below were set aside and the suit was decreed by the High Court in revision.

Mrs. Rahat Ali v. Dr. Saeeda Rehman 2002 CLC 96 ref.

(c) Administration of justice---

---- Court has jurisdiction to decide the case rightly and has no jurisdiction to decide wrongly.

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

A.M. Mobeen Khan for Petitioners.

Qalandar Bux Phulpoto for Respondents Nos.1 and 2.

Date of hearing: 27th January, 2003.

2003 C L C 1699

[Karachi]

Before Mushir Alam, J

TAHIR JAHANGIR and another----Plaintiffs

Versus

DON WATERS---Defendant

Suit No.248 of 1999, decided on 21st March, 2003.

(a) Libel---

--- Meaning and applicability---Scope---Insinuation expressed and communicated to third person by written word, sign or picture tantamounts to undermining, tarnishing and blotting the goodwill and reputation of a person is libel---To constitute libel, it is necessary that insinuation is communicated to third person---Libel is a defamatory statement or representation, communicated, transmitted or conveyed to a person other than the defamed through any medium of expression may it be in the form of printing, writing, image or other form comprehensible through sight or touch.

Black’s Law Dictionary, Sixth Edn. ref.

(b) Libel---

----Damages---Disputed communication was addressed by the defendant to Chamber of Commerce and Industry containing allegations against plaintiffs---Chamber in turn forwarded the letter to plaintiffs for their comments----Plaintiffs in their letter to the Chamber, refuted the allegations contained in the letter---Suit for recovery of damages was filed by plaintiffs alleging the communication in question as libel--­Validity---No libel was committed if it was addressed to the person concerned only---Communication containing adverse comments against plaintiffs made to a representative trade body itself was sufficient to establish that a libelous act was committed---Once it was established that a wrong had been committed, injury was presumed howsoever trivial it might be---Libel is actionable per se and wrongdoer is exposed to its consequences, may it be in the form of special damages and/or general damages---Communication in question having not been circulated amongst the general body of traders or businessmen and it was only forwarded by the Chamber of Commerce to plaintiffs to clarify their position no further action was taken by the Chamber against plaintiffs--­No repetition or circulation amongst other members or business community or social circle where plaintiffs were stated to move was made---Every person is entitled to protect his goodwill, image, reputation, and status in society---Goodwill, image, reputation and status acquires significant importance in commercial world, any bad word may ruin a person's business---Plaintiffs failed to place on record any material to show their respective reputation, status, financial or otherwise in the trade, commercial, business or social circle---Since .defendant chose not to defend the cause, such non-appearance went against him to presume that he had no defence to offer---High Court looking at all factors, while assessing injury or general damages to the goodwill, esteem, status, reputation of plaintiffs, allowed only Rs.1,000 as token of general damages to plaintiffs---Suit was decreed accordingly.

(c) Damages---

-----"Special damages" and "general damages"---Distinction---Special damages means material and actual loss capable of assessment in terms of money, resulting as a natural or proximate consequences of wrongful act like loss of business etc.---Special damages must not only be pleaded with certainty and detail but are also required to be proved at trial---General damage is loss or injury sustained or caused as a direct or proximate consequence of a wrongful act not capable of exact assessment in terms of money---Such loss or damages under law are presumed and implied like loss of goodwill reputation and mental torture etc.

(d) Damages---

---- Recovery of special damages---Principles---Where a person claims special damages then it is incumbent upon him to show as to under which head of account and how such damages have been sustained---In absence of such proof, special damages cannot be allowed.

(e) Libel---

---- Recovery of damages---Quantum of damages---Determining factors--­In order to assess a fair quantum of general damages. Court must keep in view the nature of publication/communication, to whom it is made, quantum circulation, range, extent and medium of publication/communication, status and reputation of a person in the community or society and impact of libel on the person targeted in such publication/ communication---Each of such variable factors have its own impact on the assessment of injury, loss or damage caused to such person.

Muneer A. Malik and Zia-ul-Haq Makhaoom for Plaintiffs.

Nemo for Defendant.

Date of hearing: 17th February, 2003.

2003 C L C 1721

[Karachi]

Before Muhammad Ashraf Leghari, J

NOOR HUSSAIN ---Appellant

Versus

MUHAMMAD TAJ---Respondent

First Appeal No.9 of 1993, decided on 2nd April, 2003.

Civil Procedure Code (V of 1908)---

----Ss. 12(2), 96 & O.XXXVII, R.4---Ex parte decree, setting aside of---Affidavit in evidence---Defendant was proceeded against ex parte and the suit was decreed on the basis of ex parte proof given by plaintiff by way of affidavit---Validity---No specific order was passed by Trial Court to the effect that ex parte proof should be given by way of affidavit--­Affidavit of plaintiff had no evidentiary value in absence of any specific order by the Trial Court---Plaintiff should have come in witness-box to support the avertnenrs of the plaint but he did not get himself examined--­Judgment and decree passed by the Trial Court were set aside and application under O.XXXVII, R.4, C.P.C. read with S.12(2), C.P.C. was remanded to the Trial Court for decision afresh---Appeal was allowed accordingly.

Muhammad Suleman v. Habib Bank Limited, Hyderabad 1988 CLC 969 and Bashir Ahmed v. Abdul Waheed PLD 1995 Lah.

Akhtar Hussain for Appellant.

2003 C L C 1860

[Karachi]

Before Saiyed Saeed Ashhad, C.J, and Ghulam Rabbani, J

RAHAT HUSSAIN---Petitioner

Versus

COLLECTOR OF CUSTOMS (PREV.), CUSTOMS HOUSE, KARACHI and 2 others---Respondents

Constitutional Petition No.D-3388 of 1993, decided on 3rd April, 2002.

(a) Establishment of the Office of Wafaqi (Ombudsman) Order (1 of 1983)---

---Art. 32---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Review by Wafaqi Mohtasib of his order---Validity--­Contention of the petitioner that Establishment of Wafaqi (Ombudsman) Order, 1983 had not conferred on the Wafaqi Mohtasib any power of review of his orders which could not be exercised in the absence of specific conferment of the power, was correct but order ought to have been challenged by way of representation to the President of Pakistan as required by Art.32 of the Establishment of Wafaqi Order, 1983--­Petitioner did not resort to the remedy made available to him by the Legislature---Invocation of Constitutional jurisdiction of High Court under Art. 199 of the Constitution of Pakistan, 1973 was not permitted on the established principle that in the presence of alternate and efficacious remedy available to an aggrieved party he would not be permitted to invoke the Constitutional jurisdiction of High Court but should resort to the remedy available to him under statutory law.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 rel.

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

----Art. 199--Establishment of Office of Wafaqi (Ombudsman) Order (1 of 1983)---Constitutional petition ---Wafaqi Mohtasib's order was challenged without joining Federation of Pakistan---Validity---Petitioner had challenged the order of Wafaqi Mohtasib which required to join Federation of Pakistan as one of the respondents in the petition---Failure to join Federation of Pakistan as a respondent had rendered the petition as defective and liable to be dismissed.

Haji Abdul Aziz v. Government Blochistan 1999 SCMR 16 rel.

Attaur Rehman for Petitioner.

Raja Muhammad Iqbal for Respondents.

Date of hearing: 3rd April, 2002.

2003 C L C 1879

[Karachi]

Before Sarmad Jalal Osmany, J

MUHAMMAD FAROOQ and others---Plaintiffs

Versus

ABBAS LAKADWALA and others---Defendants

Suit No. 1636 of 1998, decided on 8th August, 2001.

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

----O. XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), Ss.7 & 9---Suit for recovery of money on the basis of dishonoured cheques issued by the defendant---Application for leave to defend suit---Defendant had categorically admitted before the Court of District Magistrate that he owed the amount claimed in the suit to the plaintiffs---Defendant could not be heard to say anything to the contrary at the present stage so as to non-suit the plaintiffs---Defendant having not been able to raise any triable issue which would merit a detailed hearing in the matter as regards the amount of the cheques given to the plaintiff under his signature, suit was decreed alongwith mark up to 6% per annum on the amount from the date of filing the suit tilt payment.

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

----O.XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), Ss.7 & 9---Limitation Act (IX of 1908), Art.64-A---Suit for recovery of money on the basis of dishonoured cheque---Limitation---Period prescribed under Art.64-A, Limitation Act, 1908 for filing of a suit based on a negotiable instrument was three years to begin from the date the money became due, when the cause of action would first accrue to the plaintiff---Cheques in question, in the present case, were admittedly issued in June/July 1995 and notice of dishonour was sent by the Banks on 8-8-1995---Period of three years would begin from 8-8-1995 and would expire on 7-8-1998---Defendant had given undertaking through a consent order before the District Magistrate to pay the agreed amount to the plaintiff within three months by 28-12-1995 which, in circumstances, gave the plaintiff a fresh cause of action and period of three years would begin from that date and consequently suit filed on 26-12-1998 was within time.

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

----O. XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), Ss.7 & 9---Suit for recovery of money on the basis of dishonoured cheques issued by the defendant---Application for leave to defend the suit by the defendant ---Triable issue had been raised by the defendant inasmuch as the nexus between the plaintiffs had yet to be established which would thereafter enable them to become the holders in due course of said cheques---Defendant, in circumstances, .was given unconditional leave to defend the suit as far as the amount of these cheques was concerned.

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

----O.XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), Ss.7 & 9---Suit for recovery of money on the basis of dishonoured cheques issued by the defendants---Application for leave to defend the suit by the defendants---Defendants had neither admitted their liability in the suit amount nor had issued the cheques under their own signatures--­Nonetheless defendants were admittedly the Directors and shareholders of the Company and as far as their case was concerned, it was yet to be seen whether they would be liable for the dishonoured cheques issued by the said Company---Said defendants, in circumstances, were given unconditional leave to defend the suit---Liability of the said defendants under the cheques could be established in their capacity as Directors/share-holders of the Company, if the Company was also joined as defendant as ordered by the High Court.

Khawaja Shamsul Islam for Plaintiffs.

Arshad Tayebally for Defendants.

2003 C L C 1889

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

IMAM DINO and others---Applicants

Versus

NAWAZ ALI SHAH---Respondent

Civil Revision Application No.234 of 1993, heard on 19th August, 2002.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 31---Judgment of Appellate Court, requirements of--­Failure to observe---Trial Court while deciding case had given elaborate findings on each issue framed by it, but Appellate Court disposed appeal against judgment of Trial Court by a summary and slipshod order ---Non­compliance of provisions contained in O.XLI, R.31, C.P.C., had rendered the judgment of Appellate Court unsustainable in law---Appellate Court was required to give its decision with regard to each and every point for determination and contentions raised for and against should be disposed of by a speaking order---Appellate Court was further required to discuss all the grounds on which finding of Court below was based---Judgment of Appellate Court being not in accordance with law, High Court set aside said order in revision and, remanded the case to Appellate Court for re­hearing and fresh decision in accordance with law by recording speaking judgment.

K.B. Bhutto for Applicants.

Fahim Riaz Siddiqui for Respondent.

2003 C L C 1914

[Karachi]

Before Shabbir Ahmed, J

NABI BUX and others---Appellants

versus

LAND ACQUISITION OFFICER and others---Respondents

First Appeals Nos.30; 31 and 32 of 2003; decided on 6th May, 2003.

(a) Words and phrases---

----"Merger"---Connotation.

The verb `to merge' has been defined as meaning to sink or disappear in something else, to be lost to view or absorbed into something else, to become absorbed or extinguished, to be combined or be swallowed up.

`Merger' is defined generally as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased, an absorption or swallowing up so as to involve a loss of identity and individuality.

Corpus Juris Secundum, Vol. 57, p.1067 quoted.

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

----S. 2(2) & (9)---Trial Court ceased. to have jurisdiction to amend the decree when it has been affirmed by the Appellate Court---Once an appeal is filed the matter becomes sub judice and when the Appellate Authority passes an order, the order of the original authority disappears and merges in the order of the Appellate Authority so that there remains in existence only the Appellate order---After affirmation of the decree of Trial Court, the decree in existence is only that of the Appellate Court--­Original order merges in the Appellate order.

Lala Brij Narain v. Kunwar Tejbal Bikram Bahadur 37 IA 70; Harilal Dalsukhram Saheba v. Mulchand Asharam AIR 1930 Bom. 225; Saeed Ahmed v. Messrs Indo Enamel Works Limited,. Lahore PLD 1954 Lah. 490; F.A. Khan v. Government of Pakistan PLD 1964 SC 520; Moulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 and Glaxo Laboratories Limited v. Inspecting Assistant Commissioner of Income-tax and others PLD 199 SC 549 . ref.

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

----Ss. 11 & 18---Nature of proceedings by Collector under S.11 and proceedings of the Court .under S.18 of 'the Land Acquisition Act, 1894 and character of awards by both the said forums- -Proceedings taken by the Collector were not the judicial proceedings and its award was not a decree, whereas the proceedings under S.18, Land Acquisition Act, 1894 before Court were not in the nature of appeal from the award but were special proceedings in the nature of a suit---Award by the Collector could be appropriately described as a tender or offer made by the Collector on behalf of the Government to the owner of the property for his acceptance---Collector acts in matter of enquiry and valuation of the land only as an agent of the Government and not as a Judicial Officer---If the owner would not accept the offer of the Collector, S.18 of the Act provided him the statutory right of having the question determined by the Court---Amount of. compensation determined by the Court would be a judicial determination which would bind both the owner and the Collector and such determination. would conclude the acquisition proceedings--­Principles.

Dinshan Italia v. State of Hyderabad AIR 1955 Hyd. 203; Special Land Acquisition Officer, Railways v. Rama Rao and another AIR 1974 Karnatak 50; Bansi Lal v. Collector of Saharanpur 4 AWM 88 and Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and another AIR 1961 SC 1500 ref.

(d) Land Acquisition Act (I of 1894)---

----Ss. 26 & 23---Civil Procedure Code (V of 1908), S.2(2) & `(9)---Form and nature of award by Civil Court---Only the .award specifying the amounts (if any) awarded under each of the clauses of S.23 of Land Acquisition Act, 1894 with grounds (reasons) of awarding, each of the said amounts, shall be deemed to be the decree and the statement of grounds of every such award, a judgment within the meaning of Ss.2(2) & 2(9), C.P.C. respectively---Any order passed by the Court short of the requirements of S.26(1) of the Land Acquisition Act, 1894 shall not be deemed to be decree.

(e) Land Acquisition Act (I of 1894)---

----Ss. 11, 18 & 26---Merger, principle of---Applicability---Award passed by the Land Acquisition Officer in terms of S.11, Land Acquisition Act, 1894 does not merge .in the order passed by the Court rejecting the reference under S. 18(3) of the said Act---Principles.

The proceedings of the Court under section 18 of the Land Acquisition Act, 1894 is not Appellate proceedings against the proceedings of the Collector culminating in "award" which is an offer. The execution proceedings for realization of the amount awarded by Land Acquisition Officer cannot be taken before the Court under the cover of an order rejecting the reference on the principle of merger of order/decree, such principle is applicable where the order passed by original Court is appealed against and the Appellate Authority passes an order. The order of original authority disappears and merges in order of Appellate Authority and the order in existence is that of the Appellate Authority.

The proceedings by the Acquisition Officer under section 11 of the Act are not the judicial proceedings but inquiry. Such officer is not a judicial officer but an agent of the Government.

The Award passed by the Collector is an offer, tender and not a legal decision.

The proceedings under section 18 before the Civil Court are special proceedings and such proceedings are in nature of a suit.

The proceedings before the Court is not an appeal against the Award.

The Award by the Civil Court is to be deemed to be a decree

Every order short of requirement of subsection (1) of section 26 is not an Award.

The invocation of the principle of merger in the present case was misconceived.

Corpus Juris Sccundum, Vol. 57, p.1067; Lala Brij Narain v. Kunwar Tejbal Bikram- Bahadur 37 (A 70; Harilal Dalsukhram Saheba v. Mulchand Asharam AIR 1930 Bom. 225; Saeed Ahmed v. Messrs Indo Enamel Works Limited, Lahore PLD 1954 Lah. 490; F.A. Khan v. Government of Pakistan PLD 1964 SC 520; Moulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241; Glaxo Laboratories Limited v. Inspecting Assistant Commissioner of Income-tar and others PLD 1992 SC 549; Dinshan Italia v. State of Hyderabad AIR 1955 Hyd. 203; Special Land Acquisition Officer, Railways v. Rama Rao and another AIR 1974 Karnatak 50; Bansi Lal v. Collector of Saharanpur 4 AWM 88 and Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and another AIR 1961 SC 1500 ref.

(f) Merger, doctrine of---

----Applicability---Scope.

Ghulam Rasool Qureshi for Appellants.

Date of hearing: 6th May, 2003.

2003 C L C 1933

[Karachi]

Before Ghulam Rabbani and S. Ali Aslam Jafri, JJ

MUHAMMAD ZULFIQAR‑‑‑Petitioner

Versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑1249 of 2001, heard on 13th November, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Factual controversy was involved in the present case, needing its resolution by way of a detailed enquiry, by recording evidence as to the allegations and counter‑allegations of the parties‑‑‑Constitutional petition was not maintainable.

Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Syed Ghulam Abbas Bokhari v. Government of the Punjab and others 1997 CLC 1330 and Messrs Arshad & Company v. Capital Development Authority; Islamabad 2000 SCMR 1557 ref.

Amir Azam for Petitioner.

Sohail H.K. Rana for Respondent.

Muhammad Sarwar Khan, Addl. A.‑G.

Date of hearing: 13th November, 2001.

2003 C L C 1947

[Karachi]

Before Dr. Ghous Muhammad and Mushir Alam, JJ

Mst. ZULEKHA BAI nun others‑‑‑Appellants

Versus

Mrs. AZRA MANSOOR and others‑‑‑Respondents

High Court Appeal No.6 of 1999, decided on 4th June, 1999.

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

‑‑‑‑O. XXXIX, R. 3, first proviso‑‑‑Injunction, grant of‑‑‑Requirement of prior notice‑‑‑Nature—Audi alterem partem, principle of‑‑‑Provision of O.XXXIX, R.3, C.P.C. provided the principle of audi alteram partem which was not rigid but flexible as the operative part of the said Rule which required issuance of notice before granting injunction was relaxed in the first proviso to R.3 of O.XXXIX, C.P.C. and strict adherence to issuance of notice before exercise of authority to issue injunctive order could not be pressed into service.

Ata Muhammad Qureshi v. Settlement Commissioner, Lahore and others PLD 1971 SC 61 distinguished.

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

‑‑‑‑O. XXXIX, R. 3, first proviso‑‑‑Injunction, grant of‑‑Requirement of prior Notice‑-‑First proviso to R.3 of O.XXXIX, C.P.C. had relaxed the requirement of issuance of prior notice, before injunctive order, where it appeared to the Court that object of grant of injunction would be defeated by the delay while exercising such power.

Maulvi Abdul Muzaffar and others v. Sasanka Shekhar Gupta and others PLD 1966 Dacca 468 and Dr. Ahad Ali Khan and others v. Inayatullah Maudal and others PLD 1964 Dacca 624 ref.

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

‑‑‑‑O. XXXIX, R. 3, Ss. 129 & 131‑‑‑Sindh Chief Court Rules (O.S.), R.76‑‑Order XXXIX, C.P.C. was a complete Code in itself‑‑‑High Court, in exercise of its original jurisdiction, may pass ex parte injunction order without notice to the other party provided the case falls out of the purview of exception contained in first proviso to R.3, O.XXXIX, C.P.C.

Sindh Madrassatul Islam Board Society v. Shamim 1982 CLC 2242 ref.

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

‑‑‑‑O. XXXIX, R. 3, proviso‑‑‑Object of O.XXXIX, R.3, first proviso, C.P.C. was to give relief against ex parte orders passed under O.XXXIX, R.3, C.P.C. or when it was necessary, on account of subsequent change in circumstances, to vary or modify or set aside an interim order which had become final.

Sindh Madrassatul Islam Board Society v. Shamim 1982 CLC 2242 ref.

(e) Appeal (civil) ‑‑

‑‑‑‑‑High Court appeal‑‑‑Interim order, its scope and effectiveness‑‑­Order impugned, in the present case was an interim order which was being continued by consent, land still had not been made absolute, as application was still pending‑‑‑Where the Court was seized of a matter within its jurisdiction, Appellate Court would not intervene at such a stage merely on the ground that some rules of procedure were not followed.

Muhammad Sharif for Appellants.

Abid S. Zuberi for Respondents

Date of hearing: 3rd June, 1999.

2003 C L C 1

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD SADIQ‑‑‑Petitioner

Versus

Dr. SABIRA SULTANA‑‑‑Respondent

Civil Revision No.31 of 2001, heard on 2nd May, 2002.

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

‑‑‑‑O. XXI, R.54‑‑‑Execution of decree ‑‑‑Attachment of property‑‑­Objections relating to attachment‑‑‑Executing Court, jurisdiction of‑‑­Acquiring of title in the property attached‑‑‑Scope‑‑‑Where the claim ox objection has not been designedly or unnecessarily delayed the execution proceedings, the Executing Court under the provisions of O.XXI, R.54, C.P.C. is competent to examine objections to execution of decree‑‑­Objector during such proceedings has to prove that he has acquired the title in good faith and for consideration.

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

‑‑‑‑O. XXI, R.54‑‑‑Attachment of property‑‑‑Right of judgment‑debtor in the property attached‑‑‑Operation of attachment order ‑‑‑Effect‑‑­Attaching decree‑holder attaches not the physical property but only the right of judgment‑debtor in the property‑‑‑Attachment of property operates only when it is actually made and not from the date when the order for attachment is made‑‑‑Only a. transfer made subsequent to the actual attachment is hit and not the one which has been made prior to the effecting of an attachment though an order of attachment had been passed earlier.

Jaggannath Prasad v. Mahabbir Ram Kumar and another AIR 1955 Pat. 231 and Kala v. Sarkar PLD 1969 Azad J&K 65 ref.

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

‑‑‑‑O. XXI, R.54‑‑‑Attachment of property‑‑‑Issuance of notice‑‑‑Object and scope‑‑‑Object of O.XXI, R.54, C.P.C. providing attachment is to give notice not only to judgment‑debtor but also to public not to accept any alienation from him‑‑‑Attachment prohibits judgment‑debtor from selling the property and such attachment is effective only after order of attachment is served on him.

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

‑‑‑‑O. XXI, R.54‑‑‑Attachment of property‑‑‑Failure to make proclamation by beating of drums‑‑‑Effect‑‑‑When other 'requirements had keen made for service of order of judgment‑debtor and pasting of notice on a conspicuous part of the property, then mere non‑indication that proclamation was also made by beating of drums would not render the attachment invalid and non‑publication of sale by beat of drum was not fatal to sale‑ ‑‑Substantial compliance with provisions of O.XXI, R.54, C.P.C. were enough as the same were not mandatory in circumstances.

Syed Ashad Ali Sadiq v. Pakistan International Airlines Corporation and another 1992 CLC 1323 and Ghulam Abbas v. Zohra Bibi and another PLD 1972 SC 337 ref.

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

‑‑‑‑O. XXI, R.54‑‑‑Attachment of property‑‑‑Proceedings‑‑‑Non‑affixing of order of attachment on conspicuous part of court‑house ‑‑‑Effect‑‑­Where all formalities required by O.XXI, R.54, C.P.C. were admitted except affixing of the order on conspicuous part of court‑house, the attachment was presumed to be valid.

Lachman Singh v. Firm Dasuandhi Ram Babu Ram AIR 1938 Lah. 16 and Muhammad Akbar Khan v. Mian Musharaf Shah and another AIR 1934 PC 217 ref.

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

----‑O. XXI, R.54‑‑‑Execution of decree‑‑‑Attachment of property owned by judgment‑debtor‑‑Objection‑‑‑Petitioner claimed to be bona fide owner of the property under attachment as he had purchased it from the judgment‑debtor‑‑‑Record revealed that the petitioner was a close relative of the judgment‑debtor and the property was sold in his favour after the property had been actually attached by the Executing Court‑‑‑Both the Courts below had dismissed the objection filed by the petitioner‑‑­Validity‑‑‑Petitioner should have acquired rights of ownership and title in the property before the order passed by Executing Court regarding attachment of property became effective and the property could not have been proceeded against and sold as property of judgment‑debtor in execution of decree‑‑‑Executing Court, in the present case, had rightly attached the property and rejected the objection filed by the petitioner‑‑­High Court declined to interfere with the orders passed by the Courts below in circumstances.

Noor Muhammad v. Mst. Zainab Bibi and others 1992 CLC 1470; T. K. P. L. M. Muthiah Chetti v. Palanippa Chetti and others AIR 1928 PC 139. and Lakhmichand v. Amirchand AIR 1932 Sind 164 distinguished.

Monoharlal Banerjee v. Bengal Immunity Co: Ltd. and another AIR 1945 Cal. 308; Mohiuddin Molla v. The Province of East Pakistan and others PLD 1962 SC 119; Madan Mohan De Sarkar and others v. Rebati Mohan Poddar and others AIR '1916 Cal. 927; State Life Insurance Corporation of Pakistan v. Dr. A.M.J. Shirazee and 9 others PLD 1983 Kar. 112; Chiranji Lal and others v. Ramji Lal and another AIR 1939. Lah. 285; Zeal Pak Cement Factory Ltd. and another v. Farid Enterprises and 3 others.1993 MLD 654; Habib Bank Limited v. Messrs Ajma Corporation and others 2000 CLC 1425; Messrs Ashrafi (Private) Ltd. through Managing Director Sharafat Ali Abbasi v. Abdul Majeed Bawany through L.Rs. 1991 MLD 1101 and Messrs Ashrafi (Pvt.) Ltd. and another v. Messrs Karachi Transport Syndicate Ltd., Karachi and another PLD 1973 Note 119 at p.184 ref.

Syed Iftikhar Ahmad for Petitioner.

G. K. Imtiaz for Respondent.

Date of hearing: 2nd May, 2002.

2003 C L C 10

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. ARSHAD BIBI‑‑‑Petitioner

Versus

ALI MUHAMMAD and another‑‑‑Respondents

Civil Revision No.2527 of 1996, heard on 13th June, 2002.

Civil Procedure Code (V of 1908)‑‑­

‑‑‑‑Ss. 47 & O.XXI, Rr.100, 103‑‑‑Execution of decree‑‑‑Objection petition‑‑‑Decree was put to execution to which objection petition was filed‑‑‑Pending objection petition, decree was executed, possession of property in dispute was delivered to the decree‑holder‑and file relating to execution was consigned to record‑‑‑Executing Court dismissed objection petition after noting that decree had been satisfied and file of execution having been consigned to records, objection petition had been rendered infructuous‑‑‑First appeal against order of Executing Court was dismissed by Appellate Court‑‑‑Validity‑‑‑Executing Court, under provisions of S.47 & O.XXI, Rr.100 & 103, C.P.C., was bound to decide questions pertaining to execution and satisfaction of decree‑‑‑Order XXI, Rr.100 & 103, C.P.C. had further provided that all questions pertaining to title and possession were also to be decided by Executing Court and a separate suit had been expressly barred‑‑‑Courts below, in circumstances, had acted without lawful authority and without jurisdiction refusing to decide objection petition only on ground that possession had been delivered and decree had been satisfied‑‑‑High Court in exercise of revisional jurisdiction set aside orders of both Courts below with direction that Executing Court would requisition record of case and decide objection petition in accordance with law.

Mian Muhammad Yasin on behalf of S.M. Nasim for Petitioner.

Nemo for Respondent No. 1.

Respondent. No. 2 in person.

2003 C L C 12

[Lahore]

Before Ch. Ijaz Ahmad, J

Major (Retd.) HABIB‑UR‑REHMAN KHAN‑‑‑ Petitioner

Versus

RETURNING OFFICER, HALQA

N.A. 139, KASUR and another‑‑‑Respondents

Writ Petition No. 17389 of 2002, decided on 23rd September, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑Arts. 199 & 225‑‑‑Constitutional petition‑‑‑Election‑‑‑Matter of allotment of election symbol‑‑‑Petitioner candidate had prayed in election petition that order of Returning Officer whereby symbol (book) was allotted to respondent be withdrawn and said symbol be allotted to petitioner as he being candidate of Muthida Majlis‑e‑Amal was eligible for the same‑‑‑Matter pertained to election and election schedule had already been issued‑‑‑High Court had no jurisdiction to take cognizance of the matter in view of bar contained in Art.225 of Constitution of Pakistan (1973).

Ch. Nazir Ahmad and others v. Chief Election Commissioner and others PLD 2002 SC 184; Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396; N.P. Ponnuswami v. Returning Officer, Namakkal AIR 1952 SC 64 and Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman AIR 1985 SC 1233 ref.

Ch. Muhammad Zahoor Nasir for Petitioner.

2003 C L C 14

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD BASHIR‑‑‑Petitioner

Versus

MUHAMMAD MALIK and another‑‑‑Respondents

Civil Revision No. 1052 of 1989, decided on 9th May, 2002.

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

‑‑‑‑O. VI, R. 17‑‑‑Amendment of pleadings‑ ‑‑Maxim: Secundum allegata et probata (party to litigation can only succeed according to what was alleged and proved)‑‑‑Applicability‑‑‑Concurrent findings of fact by the Courts below‑‑‑ Evidence beyond pleadings‑‑‑Plaintiff throughout the pendency of proceedings before the Courts did not make any attempt to amend the pleadings‑‑‑Suit filed by the plaintiff was dismissed by both the Courts below‑‑‑Plaintiff contended that he had been non‑suited by the Courts below just for the reason that necessary pleadings were not made‑‑‑Validity‑‑‑No foundation had been laid down in the plaint for the case sought to be set up in the course of evidence‑‑‑In the matter of civil proceedings governed by C.P.C. no party was allowed to be permitted to lead evidence in respect of facts which were not pleaded and even if such evidence had come on record, the same was not to be looked into‑‑‑No evidence was produced in support of the case pleaded in the plaint and as such no case was made out to enable High Court to interfere with the judgments and decrees within the parameter of S.115, C. P.C. ‑‑‑Both the Courts below had rightly discarded the evidence adduced by the plaintiff as the same was beyond the pleadings.

Amir Shah v. Ziarat Gul 1998 SCMR 593 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court, exercise of--‑­Principles‑‑‑Errors made by parties ‑‑‑Revisional jurisdiction is exercised to correct errors made by subordinate Judges while deciding matter‑‑­Revisional jurisdiction cannot be extended to correct errors made by the parties or on their behalf.

Ch. Abdul Rasheed Gujjar and Ch. Iqbal Ahmad Khan for Petitioner.

Ch. M. Tufail for Respondent No. 1.

Ustad M. Iqbal and Ch. M. Akram for Respondent No.2.

Date of hearing: 9th May, 2002.

2003 C L C 17

[Lahore]

Before Jawwad S. Khawaja, J

FOZIA MUNIR‑‑‑Petitioner

Versus

DIRECTOR, EXCISE AND TAXATION REGION, LAHORE DIVISION, LAHORE and 3 others‑‑‑Respondents

Writ Petition No. 14783 of 2002, heard on 16th October, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 9 & O. XXXIX, Rr. 1, 2‑‑‑Constitution of Pakistan (1973) Art. 199‑‑‑Constitutional petition‑‑‑Dispute between parties was in respect of a vehicle‑‑‑Petitioner and respondent claimed to be owners of said vehicle‑‑‑Held; Trial Court would decide such issue and any decision rendered by Trial Court would be binding on Vehicle Registration Authority‑Trial Court was also competent to pass any interim order on application moved by either party‑‑‑If petitioner was aggrieved of any order passed by the Authority, it would be within his rights to make application to Trial Court and seek interim order.

Imran Raza Chadar for Petitioner.

Zahid Aslam Khan, A.A. ‑G. for Respondents Nos. 1 and 3.

Malik Amir Muhammad Khan for Respondent No.2.

Date of hearing: 16th October, 2002.

2003 C L C 44

[Lahore]

Before Farrukh Lateef J

SARFRAZ AHMAD KHAN‑‑‑Petitioner

Versus

DISTRICT JUDGE, MULTAN and 2 others‑‑‑Respondents

Writ Petition No.7471 of 2000, decided on 26th June, 2002.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistani (1973), Art.199‑‑‑Constitutional petition ‑‑‑Ejectment of tenant‑‑‑Striking off defence‑‑‑Ex parte proceedings against tenant‑‑‑Plea of non‑service of summons and fraud‑‑­Tenant was represented by counsel in the proceedings and the counsel after obtaining four adjournments for filing reply to the petition defaulted in filing the same, whereafter defence of the tenant was struck off‑‑­Evidence of landlord was recorded in presence of the counsel of the tenant who did not cross‑examine the witnesses, in spite of opportunity was provided to him for cross‑examination‑‑‑Eviction order was passed by the Rent Controller and the same was maintained by the Appellate Court‑‑‑Tenant contended that summons was not served on him and fraud was committed‑‑‑Validity‑‑‑If the counsel for tenant chose not to cross­examine the witnesses in spite of opportunity provided to him, no inference of fraud could have been drawn by the fact of not diligently conducting the case‑‑‑Fact of not cross‑examining the witness by a counsel did not lead to an inference or conclusion that fraud was committed by the opposite‑party‑‑‑Rent Controller had jurisdiction to decide ejectment petition under the West Pakistan Urban Rent Restriction Ordinance, 1959, and appeal against order of Rent Controller was provided under the law before the District Court‑‑‑Tenant had himself invoked the appellate jurisdiction of District Judge, hence failing there it did not lie in his mouth to say that the order passed by the Appellate Court was without lawful authority‑‑‑Orders passed by the Rent Controller and Appellate Court were not without jurisdiction or without lawful authority‑‑‑Constitutional petition was dismissed in circumstances.

Muhammad Lehrasab v. Mst. Aqeei‑un‑Nisa and 5 others 2001 SCMR 338; Assistant Commissioner and others v. Abdul Ghaffar and others PLD 1994 Pesh. 161; Haji Usman v. Haji Shafiur Rehman 1988 CLC 1443 and Haji Faqir Muhammad v. Hazratullah 1989 CLC 252 distinguished.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Ejectment of tenant‑‑‑Ex parte proceedings‑‑‑Striking off defence‑‑‑Ex parte proceedings were initiated against tenant and eviction order was passed against him‑‑‑Tenant in his application for setting aside ex parte proceedings did not mention that he had not appointed counsel or power of attorney submitted by the counsel did not contain his signatures and of the counsel or that the signatures of the tenant on the power of attorney were forged‑‑‑Rent Controller declined to set aside ex parte proceedings and defence of the tenant was struck off‑‑‑Validity‑‑‑As no such allegation was mentioned in application for setting aside of ex parte proceedings, the Rent Controller had rightly dismissed the application in circumstances.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Ejectment of tenant‑‑‑Ex parte proceedings‑‑‑Striking off defence‑‑‑Counsel and client‑‑‑Plea raised by the tenant was that the power of attorney submitted on his behalf before Rent Controller did not contain signatures of the counsel‑‑‑Effect‑‑‑As the counsel for the tenant had been appearing before the Rent Controller, therefore, non‑signing of power of attorney by the counsel was not of much significance‑‑‑When power of attorney contained signature of the tenant, then any omission on the part of counsel in signing the power of attorney was of no legal consequences‑‑‑Rent Controller had rightly not set aside the ex parte proceedings.

(d) Affidavit‑‑‑

‑‑‑‑ Certificate of Oath Commissioner‑‑‑Value‑‑‑Affidavit did not bear requisite certificate of Oath Commissioner certifying that contents of the document were stated on oath or solemn affirmation before him by deponent and that the deponent was either personally known to him or was identified before him by a person known to him (Oath Commissioner)‑‑‑Without such certificate, and without appearance of the deponent before Court, the affidavit could not be deemed as an affidavit in the eye of law and had no legal value in circumstances.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Evidence recorded by Rent Controller‑‑‑Non‑filing of the copy of evidence with Constitutional petition‑‑‑Effect‑‑‑High Court refused to give any observation on the quality or quantity of evidence in circumstances.

(f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Ejectment of tenant‑‑‑Landlord and tenant, relationship‑‑­Proof‑‑‑Title of landlord, establishing of‑‑‑Defence of tenant was struck oft' for not filing reply to the ejectment petition‑‑‑Counsel who appeared on behalf of the tenant before Rent Controller had not cross‑examined the witnesses produced by the landlord‑‑‑No evidence about version of the tenant regarding title of landlord and denial of relationship between the parties was available on record‑‑‑Effect‑‑‑In absence of such material, the Rent Controller 'could not ask the landlord to have his title established from the Civil Court before seeking eviction of the tenant‑‑‑Landlord, in such a case was not supposed to prove his title in the ejectment petition but he had only to prove that the respondent was his tenant and was liable to be evicted on the grounds mentioned in the ejectment petition‑‑‑Rent Controller had rightly accepted the ejectment petition on the basis of evidence produced by the landlord in circumstances.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Limine stage‑‑‑Filing of written statement by respondent‑‑‑Scope‑‑‑When Constitutional petition is at limine stage there is no occasion of submitting written statement.

Haq Nawaz and others v. Province of Punjab and others 1997 MLD 299 distinguished.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Powers of High Court in Constitutional jurisdiction are not analogous to those exercised by it in appeal‑‑‑High Court cannot sit as Court of Appeal in the exercise of Constitutional jurisdiction which can only be exercised if the lower Court has not exercised its jurisdiction or acted without jurisdiction.

Syed Kabeer Mahmood for Petitioner.

Syed Athar Hussain Bokhari for Respondent No.3.

Date of hearing: 18th June, 2002.

2003 C L C 64

[Lahore]

Before Abdul Shakoor Paracha and Tanvir Bashir Ansari, JJ

Sahibzada FAROOK ANWAR ABBASI and another‑‑‑Petitioners

Versus

APPELLATE AUTHORITY/DISTRICT AND SESSIONS JUDGE, BAHAWALPUR and 9 others‑‑‑Respondents

Writ Petitions Nos.3829 and 3834 of 2001/BWP, decided on 27th July, 2001.

(a) Interpretation of statutes‑‑‑

‑‑‑‑ No provision of enactment should be considered meaningless‑‑‑Whole statute is to be read in its context.

(b) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 16‑‑‑Punjab Local Government Elections Rules, 2000, R.16(6)‑‑­Nomination papers:‑‑Filing of .more than one nomination papers‑‑‑Object and scope‑‑‑Candidate can tile more than one nomination papers under the provisions of S.16 of Punjab Local Government Elections Ordinance, 2000; so that. in case one is not entertained on account of some technical flaw the candidate does not suffer‑‑‑Filing of more than one nomination papers does not mean to permit a candidate to file nomination papers having different candidates as Naib‑Nazim‑‑‑ If such construction is given to R.16(6) of Punjab Local Government Elections Rules, 2000, the same would defeat the very purpose of S.16 of the Ordinance‑‑‑Two nomination papers with two different Naib‑Nazims thus cannot be filed.

(c) Punjab Local Government Elections Rule, 2000‑‑‑

‑‑‑‑Rr. 2(xxvi), 16(3)(iii) & 18(3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑ ‑‑Election of Nazim and Naib‑Nazim‑‑­ Joint candidature‑‑‑Filing of more than one nomination papers‑‑‑Two different Naib‑Nazims with one Nazim‑‑‑Dispute was with regard to filing of three nomination papers by the candidate for the seat of Nazim an in each nomination paper, candidate for the seat of Naib‑Nazim was a different person‑‑‑In one set of nomination papers, the candidate for Naib‑Nazim withdrew his candidature while in the other set Nazim was willing to contest the elections but Naib‑Nazim in the third set refused to withdraw his candidature‑‑‑Both the nomination papers were rejected by Returning Officer and appeals against the same were also dismissed by the Appellate Authority‑‑‑Plea raised by the petitioners was that such filing of nomination papers was not a disqualification as mentioned‑under R.18(3) of Punjab Local Government Elections Rules, 2000‑‑‑Validity‑‑­Candidates by submitting two different nomination papers having one Nazim with different Naib‑Nazims had violated the provisions of R.16 of Punjab Local Government Elections Rules, 2000, and provisions of disqualification to contest the elections by the petitioners‑‑‑As one Naib­Nazim had declined to withdraw his nomination papers, the petitioners were not validly nominated candidates within the meaning of S.2(xxvi) of Punjab Local Government' Elections Rules, 2000, and since both the nomination papers were mutually destructive, the same were rightly rejected at the time of scrutiny while exercising jurisdiction under R.18 of Punjab Local Government Elections Rules, 2000, by the Authorities below‑‑‑Constitutional petition was dismissed in circumstances.

Writ Petition No.3883 of 2001 distinguished.

Muhammad Jafar Hashmi for Petitioners (in Writ Petition No.3829 of 2001).

Syed Munawar Hussain Naqvi for Petitioner (in Writ Petition No.3834 of 2001).

Sardar Masood Khan and Mumtaz Hussain Bazmi for Respondents.

2003 C L C 71

[Lahore]

Before Ch. Ijaz Ahmad and Sakhi Hussain Bokhari, JJ

TOWN COMMITTEE, JUHARABAD through Tehsil Nazim, District

Khushab‑‑‑Appellant

Versus

FALAK SHER ‑‑‑Respondent

Regular First Appeal No. 177 of 1993, heard on 16th April, 2002.

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

‑‑‑‑O. XLI, R.27‑‑‑Additional evidence, production of ‑‑‑Principles‑‑­Application for additional evidence was filed in High Court alongwith appeal‑‑‑Validity‑‑‑Nobody was allowed to fill up lacuna at belated stage specially when several opportunities were granted by Trial Court‑‑Application was dismissed in circumstances.

Ali Muhammad and others v. Mehnga 1991 CLC 1574 and Ghulam Muhammad and others v. Shah Wali PLD 1956 Lah. 756 ref.

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

‑-‑S. 115‑‑‑Revisional jurisdiction of High Court‑‑‑ Misreading and non-­reading of evidence‑‑‑Operative paragraphs of judgment and decree passed by Trial Court were not in consonance with each other ‑‑‑Effect‑‑­Trial Court did not apply its mind nor appreciated evidence on record in its true perspective‑‑‑Judgment and decree passed by Trial Court were set aside in circumstances.

Mullah Ejahar Ali. v. Government of East Pakistan and others PLD 1970 SC 173 and Messrs Friend Engineering Corporation, The Mall, Lahore v. Government of Punjab and 4.others 1991 SCMR 2324 ref.

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

‑‑‑‑O. XX, R.16‑‑‑Preliminary decree‑‑‑Rendition of accounts‑‑‑Plaintiff was given a contract by defendant for collection of octroi duty and toll tax‑‑‑Grievance of the plaintiff was that due to change in policies of the defendant after awarding of the contract, the plaintiff had suffered loss‑‑­Trial Court passed preliminary decree in favour of plaintiff and basing on report of Local Commissioner final decree was passed ‑‑‑Validity‑‑­Liability to render accounts was the foundation for maintainability of a suit for rendition of accounts‑‑‑Such liability existed when there was fiduciary relationship between the parties like in cases of partners of a firm, guardian and ward, principal and agent, trustee and beneficiary of the trust‑‑‑Where the Trial Court should feel necessary to ascertain the amount due to one party from the other, the accounts should he taken‑‑­Court was empowered to pass a preliminary decree in the case‑‑‑High Court upheld the preliminary decree passed by the Trial Court but final decree was set aside to the extent of determination of accounts as the report of the Local Commissioner was sketchy‑‑‑High Court directed the Trial Court to appoint Local Commissioner for proper determination of liability and the cape was remanded.

Syed Manzoor Ali Shah and Syed Zafar Ali Shah for Appellant.

Muhammad Farooq Qureshi Chishti for Respondent

Date of hearing: 16th April, 2002.

2003 C L C 81

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs PAKISTAN RAILWAY ADVISORY AND CONSULTANCY SERVICES

(PRACS) RAILWAY BURT INSTITUTE through Managing Director and

2 others‑‑‑Petitioners

Versus

Ch. MUHAMMAD HUSSAIN ‑‑‑Respondent

Civil Revision No.932 of 2002, decided on 2nd May, 2002.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Time‑barred appeal‑ ‑‑Condonation of delay‑‑‑Retirement of Officer concerned‑‑­Government official had retired and appeal was belatedly filed when new officer had taken the charge in his place‑‑‑Validity‑‑‑Delay of each day must be properly and satisfactorily explained and retirement of the officer was not a valid ground for extension of period of limitation and did not constitute sufficient ground for condonation of delay in circumstances.

(b) Limitation‑‑‑

‑‑‑‑ Condonation of delay‑‑‑Government enjoys unusual facilities for preparation and conduct of their cases and its sources are much larger than those possessed by ordinary litigants‑‑‑Government cannot claim to be treated in any manner differently from an ordinary litigant.

Province of East Pakistan v. Abdul Hamid Darji and others 1970 SCMR 558; Government of Balochistan v. Muhammad Ibrahim 2000 SCMR 1028; Government of N.‑W.F.P. and others v. Abdul Malik 1994 SCMR 833; The Deputy Director Food v. Syed Safdar Hussain 1979 SCMR 45 and Custodian of Enemy Property v. Hoshang M. Dastur and others 1979 SCMR 191 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑Void order‑‑­Suit for damages was instituted against Government in the name of official‑‑‑Suit was decreed in favour of plaintiff and Government filed appeal which was dismissed‑‑‑Plea raised by the defendant was that the judgment and decree passed by the Trial Court was a void order as the suit was instituted against official by name‑ ‑‑Appellate Court decided the case against the defendant (Government) on merits after applying its independent mind and after reappraisal of evidence‑‑‑Validity‑‑‑No piece of evidence was misread and non‑read by both the Courts below or violated any principle laid down by the superior Courts‑‑‑Judgment passed by the Trial Court did not fall within the definition of word "void"‑‑‑Such plea was not taken by the defendant in written statement filed in Trial Court‑‑‑High Court declined to interfere with the judgments and decrees passed by the Courts below‑‑‑Revision was dismissed in circumstances.

Government of Balochistan and others v. Ghulam Muhammad and 4 others 2001 SCMR 19; Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 and N.S. Venkatagiri Ayyangar v. Hindu Religious PLD 1949 PC 26 ref.

(d) Void order‑‑‑

‑‑‑‑ Orders not falling within definition of "void order"‑‑‑Mere irregular, incorrect, erroneous or an illegal order does not fall within definition of word "void".

Aftab Mustafa for Petitioner.

2003 C L C 91

[Lahore]

Before Muhammad Akhtar Shabbir, J

GHULAM MUSTAFA and another‑‑‑Petitioners

Versus

BASHIR AHMAD and another‑‑‑Respondents

Writ Petition No.210 of 1990/BWP, heard on 12th March, 2002.

(a) Punjab Agricultural ‑ Produce Markets Ordinance (XXIII of 1978)---

‑‑‑‑S. 24‑‑‑Arbitration ‑ Board‑‑‑Jurisdiction‑‑‑Arbitration Board has ,jurisdiction only to entertain the disputes relating to or connected with agricultural produce including allowance of wrapping for containers for dirt or for impurities etc.

(b) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)‑--

‑‑‑‑Ss. 2(a) & 24‑‑‑Constitution of Pakistan (1973). Art.199‑‑­Constitutional petition‑‑‑Arbitration Board‑‑‑Jurisdiction‑‑‑Agricultural produce‑‑‑Agricultural machinery‑‑‑Including agricultural machinery in definition of "agricultural produce"‑‑‑Validity‑‑‑Petitioners filed two suits before Arbitration Board for recovery of amounts‑‑‑Stand taken by the respondent was that he. had given a tractor trolley to petitioners and deducting the amounts claimed by the petitioners out of the price of the tractor trolley, the remaining be given to him‑‑‑Board after arbitration under S.24 of Punjab Agricultural Produce Markets Ordinance, 1978, decided claims of both the parties and directed the petitioners to return the balance amount out of price of the tractor to the respondent‑‑‑Plea raised by the petitioners was that the Board had no jurisdiction to entertain the matter relating to the price of tractor as the same did not fall under the definition of agricultural produce‑‑‑Validity‑‑‑Tractor trolley being a machinery/equipment for the purpose of cultivation and transportation of agricultural produce it was not covered by the definition of agricultural produce‑‑‑Award had been issued against the petitioners with regard to the balance amount of tractor trolley and the dispute was not triable by the Arbitration Board‑‑‑Board in the present case, had exceeded its jurisdiction by entertaining the suit therefore the judgment/award passed by the Board was without lawful authority and of no legal effect‑‑‑Judgment/award to the extent of recovery of price of tractor trolley was set aside‑‑‑Constitutional petition was allowed accordingly.

Manzoor Hussain v. Board of Arbitratrors, Market Committee, Khanewal and another 1984 CLC 1585 and Mehr Sakhi Muhammad v. Board of Arbitrators and another 1990 SCMR 1595 ref.

Aejaz Ahmad Chaudhary for Petitioners

Qazi Muhammad Mukhtar for Respondents.

Date of hearing: 12th March, 2002.

2003 C L C 106

[Lahore]

Before Syed Zahid Hussain, J

PROVINCE OF PUNJAB through Member Board of Revenue (S&R)/Chief

Settlement Commissioner, Punjab, Lahore‑‑‑Petitioner

Versus

ADDITIONAL COMMISSIONER (REVENUE)/SETTLEMENT

COMMISSIONER (LAND), GUJRANWALA DIVISION, GUJRANWALA and 2

others‑‑‑Respondents

Writ Petitions Nos.49/R and 50/R of 2000, heard on 21st May, 2002.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑

‑‑‑‑S. 2‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 78 & 84‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Allotment, cancellation of‑‑‑Authenticity of signatures‑‑‑Proof‑‑‑Allotment was cancelled by the Authorities just for the reason that the officer who confirmed the allotment was one out of those 303 civil servants who had been removed from service by the Government for having bad reputation‑‑‑Validity‑‑‑Merely for the reason that the officer was removed from service, his statement could not be brushed aside which had been made on oath‑‑‑In case of any doubt about credibility and correctness of such statement same could have been resolved by comparison of signatures and the report of Handwriting Expert which would have been consistent with the provisions of Arts.78 & 84 of Qanun‑e‑Shahadat, 1984‑‑‑As the order passed by the Notified Officer did not proceed on correct premises and relevant considerations germane to the issue involved, the order passed by the Notified Officer was set aside by High Court and the matter was remanded to the Authorities to re­determine the same afresh‑‑‑Constitutional petition was allowed accordingly.

­Ch. Mushtaq Masood for Petitioner.

A.R. Shaukat for L.Rs. of Respondent No.3.

Date of hearing: 21st May, 2002.

2003 C L C 110

[Lahore]

Before Nazir Ahmad Siddiqui, J

ABID HUSSAIN ‑‑‑Petitioner

Versus

Mst. KALSUM‑‑‑Respondent

Civil Revision No. 689 of 1986, decided on 7th May, 2002

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

‑‑‑‑O. VII, R.1(i),‑ O.VI, R.17 & S.115‑‑‑Addition of new ground‑‑­Valuation of suit‑‑‑Determination‑‑‑Petitioner moved application under O.VI, R.17, C. P. C. for addition of new ground regarding determination of valuation of suit‑‑‑Issue with regard to valuation of suit was framed by the Trial Court‑‑‑Onus of proving issue regarding valuation of court‑fee was on the petitioner but he could not succeed to have the same decided in his favour‑‑‑Issue in question was not urged before Appellate Court, so the judgment passed by the Appellate Court remained confined discussing other issues‑‑‑Application was filed 14 years after filing of the present revision with ulterior motive to prolong the litigation‑‑‑Application was dismissed in circumstances.

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

‑‑‑‑S. 122‑‑‑Gift‑‑‑Consideration‑‑‑Scope‑‑‑Generally transfer of property by way of gift takes place in favour of donee by donor out of love and affection or because of the services sincerely tendered to the donor by the donee.

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

‑‑‑‑Ss. 122 & 123‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.45‑‑‑Mutation of gift‑‑‑Onus to prove‑‑‑Beneficiary of mutation of gift was under heavy obligation to prove valid execution of the same.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court ‑‑‑Concurrent findings of fact by the Courts below‑‑‑Effect‑‑‑Such findings supported by evidence are immune from further scrutiny in a petition filed under S.115, C. P. C.

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

‑‑‑‑Ss. 122 & 126‑‑‑Gift‑‑‑Plea of revocation of gift‑‑‑Plaintiff assailed gift mutation of land owned by her made in favour of defendant on the ground of fraud and misrepresentation‑‑‑Trial Court having found the gift based on fraud and misrepresentation decreed the suit in favour of plaintiff and judgment and decree passed by the trial Court were maintained by Appellate Court‑‑‑Defendant contended that the, gift. was originally, made in his favour which was later on revoked‑‑‑Validity‑‑­Plea of revocation of gift might be effective only in those cases where gift had been made validly and lawfully without being tainted with malice, fraud and misrepresentation‑‑‑Plea of revocation of gift was of no weight at all as it had been held that no valid gift had ever taken place in favour of the defendant‑‑‑Plaintiff having been deprived of her property by the defendant in clandestine manner suit was rightly and justly decreed against the defendant by the Courts below‑‑‑Revision was dismissed in circumstances.

Khalil Ahmad v. Australasia Bank and another 1979 CLC 494 distinguished.

Fazal Muhammad and others v Mst. Zainab Bibi and other 2001 MLD 2012; Muhammad Azeem and others v. Mst. Zohran and others 2002 MLD 500 and Muhammad Latif Kardar and others v. The President, L.D.A. and others 1985 CLC 2845 ref.

Mian Arshad Latif for Petitioner.

Athar Rehman Khan for Respondent.

Date of hearing: 3rd May, 2002.

2003 C L C 122

[Lahore]

Before Abdul Shakoor Paracha, J

FAQIRULLAH and 8 others‑‑‑Petitioners

Versus

KHADIM HUSSAIN ‑‑‑Respondent

Civil Revision No.240‑D of 1993, decided on 16th April, 2002

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 8‑‑‑Civil Procedure Code (V of 1908), Ss.75, & O.XXVI, R.12‑‑­Recovery of possession of immovable property‑‑‑Demarcation‑‑‑Local Commissioner‑‑‑Delegation of judicial functions‑‑‑Report of Local Commissioner‑‑‑Value‑‑‑Disputed property was evacuee property and the plaintiff claimed possession of the same as being its lawful owner on the basis of purchase from the allottee while the defendants claimed to be owners on the basis of registered sale‑deed executed in favour of their predecessor‑in‑interest‑‑‑Dispute was with regard to demarcation of the property as the one purchased by the plaintiff was an evacuee property and the same was duly demarcated by the Settlement Authorities while one owned by the defendants was not an evacuee property‑ ‑‑Trial Court appointed Local Commissioner for demarcation of the property but not accepting his report dismissed the suit of plaintiff for the reason that the property owned by defendants was different from the one claimed by the plaintiff‑‑‑Appellate Court relying on the report of Local Commissioner accepted the appeal and judgment and decree passed by the Trial Court were set aside‑‑‑Validity‑‑‑Settlement Authorities had jurisdiction to demarcate the property before the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975‑‑‑Since the matter was a past and closed, the plaintiff filed the suit‑‑‑Appellate Court itself had not examined the documents and relied on the report of Local Commissioner‑‑‑Local Commissioner could be appointed and had power to visit the site and made the measurement but the Court could not delegate its power to decide the question of title‑‑‑ Appellate Court ipso facto relied on the report of Local Commissioner which was not warranted under law‑‑‑Report of Local Commissioner was a piece of evidence‑‑‑Defendants being owners of the area claimed by the plaintiff, judgment and decree passed by the Appellate Court was set aside while that of the Trial Court was restored in circumstances.

Rehmat Ullah's case 1983 SCMR 1064; 2002 SCMR 338; PLD 1976 Lah. 109; PLD 1978 Lah. 31; Muhammad Bashir v. Mst. Nasiran and another 1987 SCMR 999 and Muhammad Rashid and 3 others v. Saeed Ahmad 1995 SCMR 1069 ref.

Uzair Karamat Bhandari for Petitioner

Hamid Ali Mirza for Respondent

Date of hearing: 19th March, 2002.

2003 C L C 138

[Lahore]

Before Abdul Shakoor Paracha, J

SANA ULLAH and 17 others‑‑‑Petitioners

Versus

MUHAMMAD RAFIQ and 10 others‑‑‑Respondents

Civil Revision Petition No.2805‑D of 1996, decided on 23rd May, 2002.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 188‑‑‑Authority of attorney‑‑‑Extent‑‑‑If power of attorney is given for various purposes, governing object of which being power to sell, all other purposes must be read as ancillary to such governing object.

U. P. Government in Nazul Department, Lucknow v. Church Missionary Trust Association Ltd., London and Allahabad AIR 1948 Oudh 54 ref.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 188 & 196‑‑‑Ratification of agreement by attorney‑‑‑Statement of counsel appointed by general attorney‑‑‑Agreement to sell was executed by one of the co‑owners on his behalf as well as on behalf of the other co‑owners without any authority‑‑‑Subsequent to execution of the agreement, the other co‑owners appointed the executant of the agreement, as their general power of attorney regarding the property in question‑‑ Suit was filed against the owners of the property and the "counsel appointed by the general attorney made statement before the Court of execution of sale‑deed in terms of the agreement‑‑‑Validity‑‑‑Other co-­owners though were not party to the contract but the statement made by their counsel could be construed a ratification of agreement to sell on their behalf‑‑‑Agreement executed by one of the co‑owners was ratified‑ in circumstances.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 197‑‑‑Implied ratification‑‑‑Silence of principal‑‑‑Effect‑‑‑In the case of‑agent exceeding his authority, ratification may be implied from mere silence or acquiescence of the principal.

Ramasamy Chetty v. Karuppan Chetty and others AIR 1916 Mad. 1133 and Bank of Montreal v. Dominion Gresham. Guarantee and Casualty Co. AIR 1930 PC 278 ref.

(d) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 196 & 197‑‑‑Ratification of contract—Binding adoption‑‑­Necessary ingredients.

To constitute a binding adoption of prior unauthorized acts, the following conditions must exist:‑‑

(i) Acts must have been done for and in the name of supposed principal and

(ii) there must be a full knowledge of what those acts were, or such an unqualified adoption that the inference may properly be drawn that the principal intended to take upon himself the responsibility for such act, whatever they were.

Surendra Nath Roy v. Kedar Nath Bose and others AIR 1936 Cal. 87 ref.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 117 & 120‑‑‑Transaction made by Pardahnashin lady‑‑‑Onus to prove‑‑‑When such transaction is made, then onus would be always on the person claiming advantage of such transaction to show that the same was made with freewill of the Pardahnashin lady

Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Fazal Jan v. Roshan Din PLD 1990 SC 661 and Nasreen v. Fayaz PLD 1991 SC 412 ref.

(f) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 55‑‑‑Time as essence of contract‑‑‑Transaction of immovable property‑‑Time in such transaction is not of the essence of contract.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 ref.

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

‑‑‑‑S. 27(b)‑‑‑Qanun‑e‑Shahadat (10 of 1984). Arts.117 & 120‑‑‑Plea of bona fide purchaser for valuable consideration without notice of prior agreement to sell‑‑‑Onus to prove‑‑‑Onus in case of such a plea is always on the subsequent purchaser‑‑‑If the purchaser appears and states on oath that he had no knowledge of the agreement, the burden shifts to the person claiming prior agreement‑‑‑Such person has to show that the subsequent vendee had the knowledge of the previous agreement between the parties.

Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishque and 2 others PLD 1972 SC 25 ref.

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

‑‑‑‑Ss. 12 & 27(b)‑‑Specific performance of agreement to sell‑‑‑Plea of bona fide purchaser for valuable consideration without notice‑‑‑Plaintiff assailed sale of suit property on the basis of having prior agreement to sell executed in their favour by the owners of the property‑‑‑Defendants raised the plea of being bona fide owner for valuable consideration without knowledge of prior agreement to sell but it had come on the file that the Registrar objected to registration of sale‑deed in favour of defendants for reason that there existed a prior agreement‑‑‑Case set up by the defendants was destroyed by statement of one of the witnesses produced by them who admitted that before registration of sale‑deed the defendants had come to know about the execution of earlier agreement‑‑‑Trial Court dismissed the suit but Appellate Court declined to give the benefit of S.27(b) of Specific Relief Act, 1877 to the defendants and appeal was allowed resultantly the suit was decreed in favour of the plaintiffs‑‑‑Validity‑‑‑Protection of bona fide purchaser who had no knowledge of the agreement was provided only under S.27(b) of Specific Relief Act, 1877‑‑‑Defendants being the subsequent vendees had the knowledge of the prior agreement to sell between the owners and the plaintiffs‑‑‑Appellate Court on the basis of evidence, had rightly, reversed the findings on the issue of bona fide purchasers and declared the defendants as not bona fide purchasers without notice‑‑‑High Court declined to interfere with the judgment and decree passed by the Appellate Court in circumstances.

PLD 1964 SC 807; AIR 1923 Cal. 694; AIR 1937 Mad. 596; AIR 1925 Lah. 465; PLD 1994 SC 674 and PLD 1973 Note 119 at p.184 ref.

Ch. Hameed‑ud‑Din for Petitioners.

Jehangir A. Jhoja for Respondents.

Date of hearing: 24th April, 2002.

2003 C L C 149

[Lahore]

Before Sayed Zahid Hussain, J

ATTA MUHAMMAD and 8 others‑ ‑Petitioners

Versus

MEMBER, BOARD OF REVENUE/CHIEF SETTLEMENT COMMISSIONER, LAHORE and 5 others‑‑‑Respondents

Writ Petition No. 160/R of 2000, heard on 14th June, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 190 & 199‑‑‑Constitutional petition‑‑‑Judgment in personam‑‑­Effect‑‑‑Authorities, on the basis of judgment and precedent rendered by Supreme Court in other cases declined to give effect to the judgment passed by Supreme Court inter se parties‑‑‑Validity‑‑‑Inter parties direction in a judgment in personam was binding upon the parties which the Authorities were bound to obey and carry out‑‑‑Legal efficacy of judgment passed in personam could neither be stultified nor ignored by the parties‑‑‑Such judgments and directions inter se the parties could not be ignored by invoking judgments and precedents rendered in other cases‑‑‑Authorities were bound to comply with and give effect to the directions of Supreme Court faithfully which they were bound under Art. 190 of the Constitution‑‑‑High Court directed the Authorities to implement the directions of Supreme Court and settle the claim of the petitioner‑Petition was disposed of accordingly.

Muhammad Ramzan and others v. Member (Revenue)/CSS and others 1997 SCMR 1635; Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 and Pir Bukhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.

Mian Muhammad Aslam Arain for Petitioners.

Ch. Mushtaq Masood for the Settlement Department.

Date of hearing: 14th June, 2002.

2003 C L C 156

[Lahore]

Before Ch. Ijaz Ahmad, J

Dr. KHALIDA PERVEZ‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN through Ministry of Defence, Islamabad and 4

others‑‑‑Respondents

Writ Petition No. 12390 of 2000, decided on 11th June, 2002.

(a) Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1965)‑‑‑

‑‑‑‑S. 5(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Show‑cause notice‑‑‑Government property‑‑­Recovery of possession‑‑‑Grievance of the petitioner was that she was bona fide owner of the bungalow in possession and had reconstructed the same after spending huge amount‑‑‑Federal Government issued notice under S.5(2) of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1968 for vacating the property ‑‑‑Vires of show-­cause notice was assailed in the Constitutional petition ‑‑‑Validity‑‑Constitutional petition is riot maintainable against show‑cause notice Petitioner was well within her right to, raise all legal and factual pleas before the Authorities by filing a reply to the notice and the Authorities were bound to consider the case and pass a speaking order including assuming jurisdiction‑‑‑High Court, in view of controversial issues' regarding factual inquiry involved in the case, advised the petitioner took raise all objections to the jurisdiction of Authorities and also against maintainability of proceedings or issuance of notice under S.5(2) of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1968 before the Authorities and directed that the Authorities decide the matter after giving opportunity of hearing to the petitioner in accordance with law on its merits‑‑‑Petition was disposed of accordingly.

Muhammad Sharif v. Chief Administrator Auqaf 1975 SCMR 104; M.C. Leiah v. Sheikh Zafar Iqbal NLR 1986 CLC 2306; Asiatic Chemical Industries v. Punjab Agriculture Research 1997 CLC 1606; Shagufta Begum's case PLD 1989 SC 360; Messrs Central Insurance Co v. C.B.R. 1993 SCMR 1232; Messrs Pakistan Tobacco Co. Ltd. v. Government of Pakistan 1993 SCMR 493; Al‑Ahram Builders v. Income­tax Appellate Tribunal 1993 SCMR 29; Commissioner of Income‑tax v. Jennings (Pvt.) School 1993 SCMR 96; Income‑tax Officer v. Messrs Chappal Builders 1993 SCMR 1108; Abdul Rehman's case 1988 SCMR 1711; Messrs Pak Arab Fertilizer v. D.C. Income‑tax 2000 PTD 263 and Muhammad Muzaffar Khan's case PLD 1959 SC 9 ref.

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

‑‑‑‑Art 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Availability of special remedy‑‑‑Effect‑‑‑Party cannot be allowed to bypass jurisdiction vested by law in Special Tribunal and Constitutional jurisdiction cannot be invoked when special remedy is available.

Messrs Bashir & Company's case 1968 SCM997 ref.

Syed Muhammad Kaleem Ahmad Khrushid for Petitioner.

Rana Nasrullah Khan for Respondents Nos.2 and 3.

Muhammad Nawaz Bhatti, Deputy Attorney‑General for Pakistan.

2003 C L C 161

[Lahore]

Before Shaikh Abdur Razzaq, J

MUHAMMAD TAHIR‑‑‑Petitioner

Versus

JUDGE, FAMILY COURT, MINCHINABAD DISTRICT BAHAWALNAGAR and

2 others‑‑‑Respondents

Writ Petitions Nos.3711 and 3712 of 2001/BWP, decided on 9th August, 2001.

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

‑‑‑‑S. 5 & Sched.‑‑‑Arbitration Act (X of 1940), S.14‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Recovery of dower and dowry articles‑‑‑Report of referee appointed by Court‑‑‑Suit for recovery of dower and dowry articles was decreed by Family Court in favour of wife and appeal was filed before Appellate Court‑‑‑During pendency of appeal, with the consent of the parties, the dispute was referred to Referee‑‑‑Relying on the report submitted by the Referee, Appellate Court dismissed the appeal‑‑‑Husband contented that the Appellate Court had not recorded the statement of the Referee thus, the report amounted to be an award of Arbitrator‑‑‑Validity‑‑‑Referee had given his report as per direction of the Court and as such it could be considered to be a statement by the Referee‑‑ ‑Referee was not bound to appear in the Court and to make statement‑‑‑Referee could give his decision either by making a statement or by tender in the same in writing‑‑‑Referee chose to submit his decision in the form of report which had been brought on record and the decision in the report was based on his own knowledge and investigation‑‑‑Decision of the Referee could not be considered a decision of Arbitrator‑‑‑Judgment and decree passed by Appellate Court containing no illegality or jurisdictional defect, High Court declined to interfere with the same.

PLD 1970 SC 241; PLD 1970 SC 331 and PLD 1978 Lah. 672 distinguished.

Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763 and Wajid Ali and others v. Liayat Ali and others 2000 YLR 2484 ref.

Muhammad Akhtar Munir Pirzada for Petitioner.

2003 C L C 166

[Lahore]

Before Ch. Ijaz Ahmad, J

LAL DIN‑‑‑Petitioner

Versus

MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE and

others‑‑‑Respondents

Writ Petition No. 19140 of 2001, heard on 11th June, 2002.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Findings of fact, substituting of‑‑‑Scope‑‑‑Board of Revenue had passed the order after proper appreciation of evidence on record‑‑‑High Court had no jurisdiction to, substitute its own findings in place of findings of the Tribunal below.

M. Musaadaq's case PLD 1973 Lah. 600 ref.

(b) Land Reforms Regulation, 1972 [M.L.R.115]‑‑‑

‑‑‑‑Para. 7‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Substantial justice‑‑‑Transaction violative of the provisions of M. L. R. 115‑‑‑Scope‑‑‑Petitioner assailed the transaction made by the predecessor‑in‑interest of respondents being violative of M.L.R. 115‑‑­Deputy Commissioner allowed application filed by the petitioner and revision against the order was dismissed by the, Additional Commissioner‑‑‑Board of Revenue accepted the revision filed by the respondents and set aside the orders passed by the forums below‑‑­Validity‑‑‑Neither a Civil Court nor Revenue Officer had jurisdiction to declare a transaction to be, violative of provisions of M.L.R. 115‑‑­Substantial justice having been done by the order passed by the Board, High Court declined to exercise discretion in favour of the petitioner‑‑­Petition was dismissed in circumstances.

Muhammad Yaqoob and another v. Shah Nawaz and 2 others 2002 CLC 84; Mst. Aisha Bibi v. Nazir Ahmad and 10 others 1994 SCMR 1935; Mst. Hajiani and others v. West Pakistan Land Commissioner and others PLD 1966 SC 114 and Nawab Syed Raunaq Ali's case PLD 1973 SC 236 ref.

Ch. Amir Hussain for Petitioner.

Mian Javed Iqbal Arain for Respondents.

Date of hearing: 11th June, 2002.

2003 C L C 169

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL KHALIQ‑‑‑Petitioner

Versus

IRSHAD ULLAH KHAN SIAL, ADDITIONAL DISTRICT JUDGE, LAHORE and 5 others‑‑‑Respondents

Writ Petition No.20635 of 2000, heard on 14th May, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 91 & O.VII, R. 11‑‑‑Constitution of Pakistan (1973), Art. (1973), Art. 199 Constitutional petition‑‑‑Rejection plaintiff‑‑‑Public street—Plaintiff claimed the disputed street to be his personal property‑‑‑Defendant objected to the claim of the plaintiff and asserted the same to be a public street‑‑‑Application under O.VII, R.11, C.P.C. was filed by the defendant for rejection of the plaint on the ground that no permission as required under S.91; C.P.C. was sought by the plaintiff‑.‑Both the Courts below dismissed the application as well as the revision respectively‑‑­Validity‑‑‑Appellate Court while dismissing the revision had wrongly observed that is required evidence to prove as to whether the street was public or private and further observed that the plaintiff had claimed right of easement and `necessity‑‑‑Such observations of the Appellate Court were result of a misreading of record‑‑‑Plaint stated that the street was a public street and there was no case of easement either by prescription or of necessity‑‑‑As the plaintiff did not allege any special damage, the orders passed by the Courts below were passed without lawful authority and the same were set aside by High Court‑‑‑Plaint was rejected in circumstances.

S. Ijaz Ahmed for Petitioner.

M. Baqir Gardezi for Respondents Nos.3 to 6.

Date of hearing 14th May, 2002.

2003 C L C 176

[Lahore]

Before Abdul Shakoor Paracha, J

SHAHID MEHMOOD KHAN‑‑‑Petitioner

Versus

RETURNING OFFICER, MIAN NASIR HUSSAIN, ADDITIONAL DISTRICT

AND SESSIONS JUDGE, KHANPUR and another‑‑‑Respondents

Writ Petition No. 3848 of 2001/BWP, decided on 31st July, 2001.

(a) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 2(10)‑‑‑Term peasant',‑‑‑Pre‑conditions‑‑‑Practising lawyer qualified to contest election for a seat reserved for peas ants‑‑‑Validity‑‑­Only a landless farm‑worker or a person owing less than five acres of land and dependant entirely. on the same for subsistence was a peasant' under S.2(10) of Punjab Local Government Elections Ordinance, 2000, qualified to contest election for a seat reserved for peasants‑‑‑Practising Advocate was not qualified for the seat reserved for peasants.

Ahmad Bakhsh v. The District Judge/Election Tribunal and others PLD 1986 SC 223 rel.

(b) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑Ss. 2(10) & 14‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Election for seat reserved for peasants‑‑‑Pre­requisites‑‑‑Respondent was a practising lawyer and voter member‑ of Bar, Association‑‑‑Returning Officer accepted the nomination papers of the respondent for the seat reserved for peasant‑‑‑Validity‑‑‑Direct dependence upon the land for subsistence was a condition precedent for a candidate to be declared as peasant‑‑‑Condition precedent was missing as the respondent was not the owner of land less than five acres and he was earning his livelihood by practising as a lawyer‑‑‑Order passed by the Returning Officer accepting the nomination papers of the respondent was without lawful authority and of no legal effect‑‑‑Constitutional petition was allowed in circumstances.

Ahmad, Bakhsh v. The District Judge/Election Tribunal and others PLD 1986 SC 223 and Mst. Razia Sultana v. Returning Officer, Sialkot and others 2001 CLC 932 rel.

Sardar Hussain Amin Khan Lodhi for Petitioner.

Respondent No.2 in person.

2003 C L C 185

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD YASIN and another ‑‑‑Petitioners

Versus

CIVIL JUDGE IST CLASS, KABIRWALA and 2 others‑‑‑Respondents

Writ Petition No. 4177 of 1995, decided on 5th June, 2002.

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

‑‑‑S.115‑‑‑Revision‑‑‑"Case decided"‑‑‑Refusal to admit document in evidence amounts to "case decided".

Feroze Din v. Muhammad Amin and 4 others PLD 1993 Lah. 774 distinguished.

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

‑‑‑S. 11, O. VII, Rr. 14 & 18‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.76 & 77‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Principle of res judicata‑‑‑.Applicability‑‑‑Proving of notice through secondary evidence‑‑ ‑Refusal to admit .document in evidence‑‑­Pre‑emptor, in a pre‑emption suit, filed an application to produce postal envelopes containing notice of Talb‑I‑Ishhad but the application was dismissed by the Trial Court‑‑‑Subsequently the pre‑emptor filed another application to prove notice of Talb‑I‑Ishhad by secondary evidence in shape of photocopy of the said documents‑‑‑Second application was allowed by the Trial Court and the Appellate Court dismissed the revision filed against‑the order‑‑‑Plea raised by the petitioner was that when earlier application was dismissed, the subsequent application could not be all6wed‑Validity‑Where the provision of S.11, C.P.C. did not in its terms apply, the principles underlying the rule of res judicata could be invoked‑‑‑Earlier decision of the Trial Court on the application for admitting documents was a bar to the subsequent application based on the same grounds‑‑‑When permission to produce original documents was refused, production of their photocopy by way of secondary evidence could net be .allowed‑‑‑Trial Court allowed production of photocopy of the, notice in non‑compliance of the statutory provisions of law and the same was illegal, without lawful authority and of no legal effect‑‑‑High Court set aside the orders passed by both the Courts below resultantly the application for seeking permission to produce secondary evidence was dismissed‑ Petition was allowed in circumstances.

Khizar Hayat Khan Punian for Petitioners.

Mirza Aziz Akbar Baig for Respondent No.3.

Date of hearing: 23rd May, 2002.

2003 C L C 197

[Lahore]

Before Shaikh Abdur Razzaq, J

NAASIR MEHMOOD‑‑‑Petitioner

Versus

MANAGER, AGRICULTURAL DEVELOPMENT BANK BRANCH MINCHINABAD, DISTRICT BAHAWALNAGAR and 3 others‑‑‑Respondents

Writ Petition No. 3003 of 2001, decided on 26th June, 2001.

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

‑‑‑‑S. 82‑‑‑Recovery of arrears of land revenue‑‑‑Detention beyond ten days‑‑‑Order of detention not passed by Collector‑‑‑Detention order was passed by Extra‑Assistant Commissioner/Magistrate ‑‑‑Validity‑‑­Detention after expiry of ten days was not valid as the Extra‑Assistant Commissioner/Magistrate was not competent to grant the extension and =he same could only be granted by Collector as required by S.82 of West 'Pakistan Land Revenue Act, 1967.

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

‑‑‑‑Ss. 81 & 82‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Arrears of land revenue, recovery of‑‑‑Detaining guarantor instead of original loanee‑‑‑Validity‑‑‑Dispute was with regard to recovery of loan advanced to mother of the detenu‑‑‑Authorities instead of initiating action against the original loanee/defaulter, initiated action against some other member of the family or guarantor without complying with codal formalities‑‑‑Loanee had pledged her land with the Bank and instead of dealing with her property, the Bank Authorities had chosen to make the detenu as a scapegoat of the original loanee‑‑­Effect‑‑‑As the record regarding detention was not prepared by the Authorities in accordance with law, therefore, detention was illegal and the detenu was set at liberty‑‑‑Constitutional petition was allowed in circumstances.

Mian Noor Ali Wattoo for Petitioner.

Mushtaq Parvez Abbasi for Respondents.

2003 C L C 209

[Lahore]

Before Maulvi Anwarul Haq, J

Malik MUHAMMAD HUSSAIN and 2 others‑ ‑‑Petitioners

Versus

THE MEMBER, BOARD OF REVENUE (COLONIES), BOARD OF REVENUE, PUNJAB, LAHORE and others‑‑‑Respondents

Writ Petitions Nos. 15690, 17064, 17065 and 16458 of 1995, heard on 23rd May, 2002.

Constitution of Pakistan (1973)‑‑‑-

‑‑Art. 199‑‑‑Constitutional petition‑‑‑Administration of justice ‑‑‑Non­ existing order‑‑‑Illegal occupation of State land‑‑‑Dispute between the parties was regarding occupation of State land‑‑‑Petitioners claimed to be in possession of the land as lawful lessees whereas the respondents alleged that they were the highest bidders and were granted lease of the ;and in question‑‑‑Respondents had relied on Revenue Record whereby the petitioners were illegal and unauthorized occupants‑‑‑Petitioners led to place on record any document to support that they were in lawful occupation of the land as lessee or otherwise‑‑‑Reliance of the petitioners was on certain reports filed by Revenue Officers in High Court wherein it was stated that possession of the land in question was handed over to the petitioners in compliance of the order passed by High Court‑‑‑No such order was passed by High Court for delivery of possession to the petitioners‑‑‑Effect‑‑‑High Court took serious notice of the manner in which law and particularly the process of High Court had been wantonly abused by the petitioners as well as the official which was deplorable‑‑‑As no order had been passed‑ by High Court which was stated to be complied with by the officials, High Court was of the view that if such a conduct was to be permitted to continue then all hell would break loose‑‑‑Such behavior of Government officials was criticized by Supreme Court in terms that all that a police officer or. an executive officer required would be to get a petition filed in High Court and thereafter file a compromise report of non‑existing orders to the detriment of the citizens of the country‑‑‑As the respondents were the highest bidders, High Court directed the Authorities to restore the Possession to them‑‑‑Petition was disposed of accordingly.

Ch. Muzamal Khan for Petitioner No. 1 (in Writ Petition No. 15690 of 1995).

Sh. Abdul Aziz for Petitioners Nos. 2 and 3 (in Writ Petition No. 15690 of 1995).

Dr. A. Basit for the Private Respondents (in Writ Petition No. 15690 of 1995).

Fozi Zafar, A.A. ‑G. (in Writ Petition No. 15690 of 1995).

Dr. A. Basit for Petitioners (in Writ Petition No. 17064 of 1995).

Ch. Muzamal Khan for Respondent No.4 (in Writ Petition No. 17064 of 1995).

Fozi Zafar, A.A. ‑G. (in Writ Petition No. 17064 of 1995).

Writ Petition No. 17065 of 1995

Dr. A. Basit for Petitioners.

M. Ashraf, A.A.‑G.

Ch. Muzamal Khan for' Respondent No.3.

Sh. Abdul Aziz for Petitioner (in Writ Petition No. 16458 of 995).

Fozi Zafar, A.A.‑G. (in Writ Petition No. 16458 of 1995).

Dr. A. Basit for Respondents Nos.3 to 12 (in. Writ Petition No. 16458 of 1995).

Date of hearing: 23rd May, 2002.

2003 C L C 217

[Lahore]

Before Ch. Ijaz Ahmad, J

MOTHADA MAHAZ RICKSHAW AND TAXI DRIVERS UNION, LAHORE through General Secretary and another‑‑‑Petitioners

Versus

CHIEF SECRETARY PUNJAB, GOVERNMENT OF THE PUNJAB, CIVIL SECRETARIAT, LAHORE and 2 others‑‑‑Respondents

Writ Petition No. 7316 of 2002, heard on 24th May, 2002.

Provincial Motor Vehicles Ordinances (XIX of 1965)‑‑‑-

‑‑‑‑S. 35‑‑‑Provincial Motor Vehicles Rules, 1969, Rr.35, 35(9), 35(a), 35(b) , and 35(c)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional jurisdiction of High Court‑‑‑Inter‑departmental affairs‑‑­'Motor Vehicles Examiner licence, grant of‑‑‑Proposed amendments ‑‑­Summaries of proposed amendments had been submitted to Governor but none of the summaries was approved by the Authorities‑‑‑Petitioners assailed the proposed amendments in the petition‑‑‑Validity‑‑‑High Court does not favour interference with inter‑deputmental affairs‑‑‑As no final order .had been passed and approved by the Governor, High Court declined to interfere in the matter‑‑‑In the interest of justice and fairplay, copy of the Constitutional petition was sent to the Authorities for their consideration‑‑‑High Court directed the Authorities to place on record all the previous summaries before the Governor so that Competent Authority be in a position to have a complete picture before him at the time of passing the final order so that law should be framed in accordance with the provisions of Provincial Motor Vehicle­ Ordinance, 1965‑‑‑Constitutional petition was disposed of accordingly

Amin Jan v. Director‑General, T & T and others PLD 1985 Lah. 81 rel.

Aftab Gull for Petitioners.

Maqbool Elahi Malik, A.G. with Kamran Shuja for Respondents.

Date of hearing: 24th May, 2002.

2003 C L C 229

[Lahore]

Before M. Javed Buttar, J

JAMEEL AHMAD‑‑‑Petitioner

Versus

LIAQAT ALI ‑‑‑Respondent

Regular Second Appeal No. 76 of 1996, decided on 24th May, 2002.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

-----S. 35(2)‑‑‑Right of pre‑eruption, exercise of‑‑‑Interregnum‑‑‑Sufficient for pre‑emptor under S.35(2) of Punjab Pre‑emption Act, 1991, to establish making of Talb‑i‑Ishhad in presence of two truthful witnesses.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑--

‑‑‑‑S. 13‑‑‑Pre‑emption suit‑‑‑Necessary Talbs (demands) making of‑‑‑ Talb‑i‑Ishhad‑‑‑Duty of witnesses of the notice of Talb‑i‑Ishhad‑‑‑Non ­mentioning of details of making Talb in plaint‑‑‑Offer of price to vendee by pre‑emptor ‑‑‑Both the Courts below had dismissed the suit and appeal respectively filed by pre‑emptor on the ground that witnesses produced by the pre‑emptor had failed to prove making of Talb‑i‑Ishhad‑‑­Validity‑‑‑Pre‑emptor could prove making of necessary Talb through evidence and each and every detail of making such Talb need not to be given in the plaint‑‑‑First Appellate Court had wrongly found that mere offer of price was not a sufficient prove of Talb‑i‑Ishhad‑‑‑Judgment passed by the First Appellate Court suffered from non‑reading of evidence and illegality in the regard that the witnesses of Talb‑i‑Ishhad had not alleged superior right of pre‑emption of the pre‑emptor ‑‑‑It was not requirement of law that the witnesses of Talb‑i‑Ishhad had to allege superior right of pre‑emption of the pre‑emptor ‑‑‑Such witnesses were merely witnesses of making of Talb by the pre‑emptor to vendee ‑‑‑High Court set aside the judgments and decrees passed by both the Courts below and remanded the case to the Trial Court for decision afresh.

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Bashir Ahmad v. Nazir Ahmad Khan 2000 SCMR 1850; Bashiran Bibi v. Muhammad Kashif and others PLD 1995 Lah. 200; Muhammad Usman and another v. Khushi Muhammad and 2 others 2001 YLR 2908 and Nadir Khan v. Itebar Khan 2001 SCMR 539 ref.

Muhammad Iqbal Mohal for Petitioner.

Ahmad Waheed Khan for Respondent.

Date of hearing: 15th May, 2002.

2003 C L C 240

[Lahore]

Before Farrukh Lateef, J

HAKAM DAD‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB‑‑‑Respondent

Civil Revision No.556‑D of 1993, decided on 18th September, 2002.

(a) Words and phrases‑‑‑-

‑‑‑‑ "Acted illegally" and "acted with material irregularity", meaning of‑‑‑Term "acted illegally" would mean acting in breach of some provision of law and words 'acted with material irregularity" would refer to committing of some error of procedure in the course of trial which was material and could affect the ultimate decision.

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

‑‑‑‑Ss. 10 & 30‑‑‑Proprietary rights, grant of‑‑‑Petitioner who claimed to tie in possession of State land as its lessee for five years, had prayed for grant of proprietary rights in respect of such land ‑‑‑Jamabandi showed that almost the whole land was "Bunjar Qadeem"-‑‑Cultivation of land by lessee himself was a necessary prerequisite for grant of proprietary rights under notification‑‑‑Lease of petitioner stood expired, but after expiry of ;ease, petitioner did not apply for extension of lease period and ,consequently it was resumed by order of District Collector and said order of resumption had attained finality‑‑‑Petitioner, in circumstances, was not lessee of land in dispute at the time he applied for grant of proprietary ‑fights in respect thereof‑‑‑Petitioner, in circumstances, was not eligible `or grant of proprietary rights in respect of land in dispute‑‑‑Conclusion arrived at by Courts below that petitioner was not entitled to grant of proprietary rights being based on sound and plausible reasoning, could not be interfered with by High Court in exercise of its revisional jurisdiction‑‑‑Petitioner having failed to point out any breach of any provision of law or commission of any error of procedure by Courts below, revision against order of Courts below, was dismissed.

Mian Muhammad Siddique Kamiana for Petitioner.

Tariq Mahmood Khan Malazai for Respondent.

Date of hearing: 12th September, 2002.

2003 C L C 246

[Lahore]

Before Abdul Shakoor Paracha, J

MEHTAB AHMED ‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Government of Pakistan, Islamabad and 3 others‑‑‑Respondents

Writ Petition No.2630 of 2002, decided on 26th September, 2002.

Exit from Pakistan (Control) Ordinance (XLVI of 1981)‑‑‑

‑‑‑‑S. 2‑‑Constitution of Pakistan (1973), Arts. 199 & 15‑‑‑Constitutional petition‑‑‑Placing name on Exit Control List‑-‑Name of petitioner who allegedly was member of Liberation Front was placed on Exit Control List merely on the ground that he had obtained passport and had tried to get No‑Objection Certificate‑‑‑No material was on record which could show that petitioner was involved in a criminal case or that he could leave country in order to escape any criminal liability ‑‑‑Effect‑‑­Government could prohibit citizen under S.2 of Exit From Pakistan (Control) Ordinance, 1981 from proceeding abroad to destination outside Pakistan as it was provided therein that powers had been granted to Government to place restriction on movement of any person from Pakistan to outside Pakistan‑‑‑Such powers were wide enough whereby it would not be necessary for Government to afford opportunity of show cause against such order and also to specify grounds on which order was proposed to be made‑‑‑Such powers, however, should not be exercised wildly, arbitrarily or capriciously, but should be exercised in accordance with Constitution‑‑‑Such absolute powers were to be examined with caution and care and judicious application of mind‑‑‑Mere placing name of petitioner on report of police, was not proper exercise of jurisdiction by Government‑‑‑Mere apprehension that a citizen could be involved in any criminal liability, was not sufficient to place his name on Exit Control List and deprive him from his fundamental right of liberty inclusive of right to travel abroad‑‑‑Citizens could not be deprived of their fundamental rights without any concrete evidence or complaint brought against him‑‑‑Authorities had placed name of petitioner on Exit Control List without application of mind and without any material available against him‑‑‑Authorities, in circumstances, having failed to exercise jurisdiction vested in them under law, their action could not be sustained‑‑‑High Court set aside 'action of Authorities, in exercise of its Constitutional jurisdiction with directions that name of petitioner be deleted from the Exit Control List.

Wajid Shams‑ul‑Hassan v. Federation of Pakistan and others PLD 1997 Lah. 617 and Arshad Sami Khan v. Federation of Pakistan 1998 MLD 490 ref.

Sardar A. Majeed Khan for Petitioner.

Sultan Mansur, Dy. A.‑G.

2003 C L C 254

[Lahore]

Before Sayed Zahid Hussain and Tanvir Bashir Ansari, JJ

MUHAMMAD IFTIKHAR and another‑‑‑Appellants

Versus

DSTRICT AND SESSIONS JUDGE, FAISALABAD and 7 others‑‑‑Respondents

Intra‑Court Appeal No.739 of 2002 in Writ Petition No. 17499 of 2002, decided on 26th September, 2002.

Punjab Local Government Elections Rules, 2000‑‑‑--

‑‑‑‑Rr. 39(5) & 40(6)‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑­Intra‑Court Appeal ‑‑‑Examination of record and recount of votes ‑‑­Jurisdiction of Election Tribunal‑‑‑Order of Election Tribunal whereby it ordered examination of record and recount of votes was assailed in Constitutional petition on ground that Election Tribunal had no jurisdiction to make such order‑‑‑Constitutional petition having been dismissed, said order was assailed in Intra‑Court Appeal ‑‑‑Validity‑‑­Election Tribunal on scrutiny of record, after hearing parties found that sufficient justification existed for scrutiny and re‑counting of votes of the parties and ordered accordingly‑‑‑Contention that Election Tribunal had no power to order examination of record anal re‑counting of votes, was repelled, in view of the fact that when such power was conceded to Presiding Officer in view of R.39(5) and to Returning Officer under R.40(6) of Punjab Local Government Elections Rules, 2000, such a power could not be denied to Election Tribunal who while hearing Election Petition was empowered to declare election as a whole to be void‑‑‑Such a power was ancillary and incidental to main jurisdiction of Election Tribunal‑‑‑Election Tribunal could not be denied exercise of such power nor denuded of the same.

Muhammad Tayyab Tahir and another v. Muhammad Khalid Sardar and others 1999 SCMR 1126 ref.

Zafar Iqbal Chohan for Appellants.

2003 C L C 259

[Lahore]

Before Ch. Ijaz Ahmad, J

ABDUL RAUF through General Attorney‑‑‑Petitioner

Versus

ABDUL AZIZ through his Legal Heirs and 4 others‑‑‑Respondents

Writ Petition No.21115 of 2001, heard on 24th July, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑Scope‑‑‑Constitutional jurisdiction is discretionary in character‑‑‑High Court has no jurisdiction to substitute its own findings in place of findings of Tribunal below.

Asim Akram for Petitioner.

Mian Muzaffar Hussain, Legal Advisor for Respondent No.4.

Date of hearing: 24th July, 2002.

2003 C L C 269

[Lahore]

Before Ch. Ijaz Ahmad, J

LAHORE DEVELOPMENT AUTHORITY through Director‑General, L.D.A. Plaza, Lahore and another‑‑‑Petitioners

Versus

Messrs SEA HAWK INTERNATIONAL (PVT.) LTD., LAHORE‑‑‑Respondent

Civil Revision No.2017 of 2001, decided on 8th October, 2002.

Civil Procedure Code (V of 1908)‑‑‑-

‑‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), Ss.5 & 29(2)‑‑‑Revision petition‑‑‑Delay in filing of ‑‑‑Condonation‑‑‑Petitioner which was a Statutory Body had filed revision against judgment of Trial Court after a considerable delay of 121 days‑‑‑Effect‑‑-Government/statutory bodies were at par with general public‑‑‑Grounds mentioned in application for condonation of delay that record of petitioner was misplaced, was not sufficient ground for condonation of delay‑‑‑Even otherwise S.5 of Limitation Act, 1908 was not applicable in the revision proceedings‑‑­Revision petition was dismissed as time‑barred.

Allah Dino and another v. Muhammad Shah 2001 SCMR 286; Izzat Khan v. Mst. Insha Allah Begum and others PLD 2001 Kar. 396; Mughla and others v. Jaffar and‑others 2001 CLC 1410; Government of the Punjab v. Syed Khizar Abbas 1999 SCMR 2260; Evacuee Trust Property Board v. Abdul Aziz Khan 2000 SCMR 1371; Central Board of Revenue v. Messrs Raja Industries 1998 SCMR 307; Government or Pakistan v. Messrs Rafi Associates Ltd. 1985 CLC 2234 and Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 ref.

Ch. Muhammad Rashid Ahmad for Petitioners.

Muhammad Salim Chaudhry for Respondent.

2003 C L C 276

[Lahore]

Before Ch. Ijaz Ahmed and Sayed Zahid Hussain, JJ

MUHAMMAD IQBAL KHOKHAR‑‑‑Appellant

Versus

Messrs AZIZSONS GROUP and 2 others‑‑‑Respondents

Regular First Appeal No.79 of 1993 and Civil Miscellaneous No.584‑C of 2002, decided on 7th May, 2002.

Court Fees Act (VII of 1870)‑‑‑--

‑‑‑‑S. 13‑‑‑Court‑fee, return of‑‑‑Appeal dismissed as not pressed‑‑­Appellant sought return of court‑fee affixed on memorandum of appeal on the ground that the matter was compromised between the parties out of the Court and accordingly the appeal was dismissed as not pressed‑‑­Effect‑‑‑Court, in the present case, had not to apply its mind as the controversy was finalized between the parties outside the Court‑‑‑High Court directed the office to issue necessary certificate authorizing the appellant to recover the amount incurred by him on payment of court‑fee on memorandum of appeal‑‑‑Application was allowed accordingly.

Sh. Riaz‑ud‑Din v. Aqil‑ur‑Rehman Siddiqui and 4 others PLD 1993 SC 76; Messrs Hussain' Paper and Board Mills (Pvt.) Ltd. and 4 others v. Habib Credit and Exchange Bank Ltd. 2002 CLD 605; Pakistan Burmah Shell Ltd. v. Tariq Brothers 1997 CLC 761; Muhammad Afzal v. Muhammad Aslam 1994 CLC 1277; Nabi Bux Khan Bhurgari v. National Bank of Pakistan. PLD 1988 Kar. 24 arid Muhammad Chottey Khan Muhammad Munir Khan and 2 others PLD 1992 Kar. 160 ref.

Muhammad Naazar Khan for Applicant.

Maqbool Ellahi Malik, A.‑G., Punjab.

2003 C L C 282

[Lahore]

Before Pervez Ahmad, J

ALI MUHAMMAD ‑‑‑Petitioner

Versus

GHULAM MUHAMMAD ‑‑‑Respondent

Civil Revision No.933/D of 2002, decided on 3rd July, 2002.

(a) Words and phrases‑‑‑--

‑‑‑‑ `Immediate', meaning and scope explained.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑--

‑‑‑‑Ss. 6 & 13(1)(a)‑‑‑Suit for pre‑emption ‑‑‑Making of Talb‑I-­Muwathibat‑‑‑Revisional jurisdiction, exercise of‑‑‑Incumbent upon a pre‑emptor to make 'Talb‑i‑Muwathibat' at once without losing any moment on coming to know of sale wherein he was interested to exercise his right of pre‑emption ‑‑‑Pre‑emptor having failed to make 'Talb‑i­-Muwathibat' in accordance with S.13 of Punjab. Pre‑emption Act, 1991, he was not entitled to pre‑empt sale‑‑‑Courts below had rightly dismissed the suit and appeal in circumstances.

Monajal Huq v. Shafiullah PLD 1964 Dacca 640; Smt. Sundri Bai v. Ghulam Hussain 1982 CLC 2441 and Budho through Legal Representatives v. Karim Bux and 5 others 1985 CLC 1037 ref.

Sardar Muhammad Ramzan for Petitioner.

2003 C L C 294

[Lahore]

Before Abdul Shakoor Paracha, J

Dr. AMEER AHMED KHAN‑‑‑Appellant

Versus

SAFEER AHMED ‑‑‑Respondent

Second Appeal from Order No. 10 of 2001, heard on 20th June, 2002.

(a) West, Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑-

‑‑-‑Ss. 13(3)(a) & 15‑-‑Bona fide personal need of landlord‑‑‑Landlord had sought ejectment of tenant on the ground that he intended to establish a clinic for his own use being a doctor and also for use of his sons and wife who .also were doctors‑‑‑Landlord appeared in Court and made statement on oath with regard to his personal need in respect of the premises‑‑‑Statement of landlord neither was shaken in cross‑examination nor it had been shown that plea taken by landlord was inconsistent with his pleadings or that application for ejectment had been filed mala fide‑‑­While adjudging personal bona fide need of landlord, the statement on Oath of landlord was found consistent with ejectment petition which was not shaken during cross‑examination, and had to be accepted‑‑‑Sons of landlord for whom ejectment of tenant was sought by landlord could not have been asked to come to Pakistan from abroad without any established business or at least before making some arrangement in that regard‑‑‑If sons of landlord were settled abroad or were doing any job there even then, they had a right to come to Pakistan and settle here‑‑‑Requirement of law was not that sons of landlord should appear as witness in support of their demand‑‑‑Landlord could file ejectment application against tenant to the effect that premises were required for his personal use or for the use of his children in good faith.

Hassan Khan v. Munawar Begum PLD 1976 Kar. 832; Fazal Aziz and another v. Tariq Mahmood and another PLD 1982 SC 218 and Musarrat Amin v. Muhammad Mobin 1985 CLC 2033 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(3)(4)‑‑‑Rona fide personal need of landlord‑‑‑Assertion of landlord that he required the premises for his personal use, should be determined in context of provisions contained in S.13(4) of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Said provisions of law enabled a tenant to regain possession from the landlord who had obtained it on a false plea of bona fide personal need, but had failed to occupy premises within one month of date of obtaining possession or who re‑let it within two months of said date to any person other than the tenant.

Muhammad Siddique v. Mistri Muhammad Aslam PLD 1975 Lah. 308 ref.

Ahmad Waheed Khan for Appellant.

Ms. Farzana Shahzad Khan for Respondent.

Date of hearing: 20th June, 2002.

2003 C L C 301

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD AKRAM and 5 others‑‑‑Petitioners

Versus

Haji MUHAMMAD ALI ‑‑‑Respondent

Civil Revisions Nos. 137 and 121 of 1995, heard on 9th April, 2002.

(a) Islamic Law‑‑‑-

‑‑‑‑Gift‑‑‑Constructive possession, delivery of‑‑‑Land which was jointly owned by donor was transferred in favour of donee and constructive possession was delivered to the donee ‑‑‑Validity‑‑‑Such gift was complete in all respects as all the three ingredients i.e. declaration, acceptance and delivery of possession were fulfilled‑ ‑‑Gift was valid in circumstances.

(b) Islamic Law‑‑‑

‑‑‑‑ Gift‑‑‑Hibba‑bil‑Musha‑‑‑Donee was daughter of donor and total share of donor in the joint property was gifted in favour of the donee ‑‑‑When the gift was made, the same was jointly owned by the donor with respondent‑‑‑Gift in the present case was a valid gift in spite of the fact that it was Hibba‑bil‑Musha.

Mohammadan Law by D. F. Mulla, paras.158 to 160; Muhammadan Law, by Tayyab Ji, 3rd Edn. paras.374 to 382; Digest of Muhammadan Law by Baillie, p.523; Hedaya by Hamilton, p.486; Aurangzeb and others v. Daud Khan and others PLD 1957 Pesh. 85; Nazir Din and others v. Muhammad Shafi AIR 1936 Lah. 1992; Saif Shafiullah v. Ghulam PLD 1955 Lah. 191; Hamidullah v. Ahmadullah AIR 1936 All. 473; Kanij Fatima v. Jai Narain (1944) 23 Pat. 216; 218 IC 443; (44) AP 334 and Bahadur Khan v. Jan Muhammad PLD 1960 Kar. 742 ref.

(c) Islamic Law‑‑‑--

‑‑‑‑Gift‑‑‑Doctrine of Musha‑‑‑Applicability‑‑‑Joint undivided property‑‑­Out of more than 100 Kanals of land, the plaintiff owned 19 Kanals and 3 Marlas‑‑‑Land was joint between the plaintiff and defendant‑‑‑One of the plaintiffs gifted her share in favour of her daughter, the other plaintiff vide registered gift deed‑‑‑Both the Courts below concurrently dismissed the suit and appeal of the plaintiffs on the ground that doctrine of Musha was applicable in the case‑‑‑Where it was proved that out of total land of more than 100 Kanals, land measuring 19 Kanals and 3 Marlas was the subject‑matter of the gift as such the gift made in favour of the donee was not hit by the principle of Musha‑‑‑Both the Courts below had misread the documentary evidence in favour of the plaintiffs, misinterpreted the law of Musha, fell in error and committed material irregularity and illegality in non‑suiting the plaintiffs‑‑‑Though there was concurrent finding of fact, yet the same were not correct interpretation of law‑‑‑High Court by exercising revisional jurisdiction under S.115, C.P.C. set aside judgments and decrees of both the Courts below and the suit of the plaintiffs was decreed.

Muhammadan Law by D.F. Mulla, paras. 158 to 160; Said Hassan v. Shah Hussain 47 All 272; PLD 1960 (W.P.) Kar. 745 and Hakam Khan v. Aurangzeb and others PLD 1975 Lah. 1170 ref.

Arif Chaudhry for Petitioners.

Mian Israr‑ul‑Haq for Respondent.

Date of hearing: 9th April, 2002.

2003 C L C 315

[Lahore]

Before Ch. Ijaz Ahmad, J

MUNICIPAL CORPORATION, FAISALABAD through Nazim (City), Tehsil Administration, Faisalabad ‑‑‑Petitioner

Versus

JAIMS MASIH‑‑‑Respondent

Civil Revision No.836 of 2002, decided on 22nd April, 2002.

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

‑‑‑‑O. VII, R. 2‑‑‑Suit for recovery of amount‑‑‑Contributory negligence, principle of‑‑‑Applicability‑‑‑Concurrent findings of fact by the Courts below‑‑‑Recovery suit‑‑‑Authorities had entered wrong date of birth of the plaintiff in their record‑‑‑Due to such error in the record, the plaintiff had been working even after his date of retirement‑‑‑Authorities recovered the amount of salary paid to the plaintiff after the period of his retirement‑‑‑Suit for recovery of the amount was filed against the Authorities‑‑‑Suit was decreed by the Trial Court and appeal against the judgment and decree was dismissed by the Appellate Court ‑‑‑Validity‑‑­Authorities having not terminated the plaintiff according to the date of birth, those were also liable for contributory negligence qua the action taken by them against the plaintiff subsequently‑ ‑‑Both the Courts below had given concurrent finding of fact against the Authorities‑‑‑High Court declined to interfere with the judgments and decrees passed by both the Courts below in circumstances.

Mehr Khan v. Executive Engineer 1998 SCMR 613 distinguished.

Jalal‑ud‑Din's case PLD 1992 SC 207; Ahmad Latif's case PLD 1994 Lah. 3 and Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayat Ullah Farukhi PLD 1969 SC 407 ref.

(b) Administration of justice‑‑‑-

‑‑‑‑Nobody should be penalized by inaction of public functionary.

Chairman, B.I.S.E. v. Suleman Mansoor Ahmad 1981 SCMR 481 ref.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Scope‑‑‑Concurrent findings of fact‑‑‑High Court has very limited jurisdiction while exercising its powers under S.115, C.P.C. to set aside the concurrent findings of facts unless and until the same are the result of misreading and non‑reading of record.

Tahir Munir Malik for Petitioner.

2003 C L C 328

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASLAM and 13 others‑‑‑Appellants

Versus

SARDAR KHAN and 9 others‑‑‑Respondents

Regular Second Appeal No.55 of 1995, heard on 4th September, 2002.

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

‑‑‑‑S. 39‑‑‑Specific Relief Act (I of 1877), Ss. 12 & 42‑‑‑Suit for possession and declaration‑‑‑Status of tenant, determination of‑‑­Plaintiffs had claimed that suit land was owned by them while defendants were non‑occupancy tenants‑‑‑Defendants denied the claim of plaintiffs contending that they had become owner of the suit‑land by adverse possession‑‑‑Defendants were recorded as non‑occupancy tenants in column of possession under plaintiffs‑‑‑Defendants had themselves admitted that suit land was recorded 'to be owned by plaintiffs in cultivation column; but they had tried to state that they were in occupation as occupancy tenants‑‑‑Entries in column of "Lagan" which were not otherwise corroborated by any evidence could not take precedence over entries in column of cultivation‑‑‑Mere non‑payment of rent by tenant as mentioned in `Lagan' column by, itself would not change his character as tenant, if he was recorded as tenant in cultivation column‑‑‑Order dismissing suit by. Trial Court, was rightly set aside by Appellate Court whose judgment was in perfect accord in matter of reading the entries in Revenue Record.

Shad Muhammad v. Khan Noor PLD 1986 SC 91 ref.

Ch. Muhammad Saeed for Appellants.

Malik Moor Muhammad Awan for Respondents.

Date of hearing: 4th September, 2002.

2003 C L C 331

[Lahore]

Before Ch. Ijaz Ahmad, J

SULEIMAN KHAN & CO. ‑‑‑Petitioner

Versus

PAKISTAN RAILWAYS through General Manager, Railways Headquarters, Empress Road, Lahore and 2 others‑‑‑Respondents

Writ Petitions Nos.921, 922, 923, 924, 925, 926, 927, 928, 929, 930, 931, 932, 933, 934, 228, 2591, 2592, 2593, 2594, 2595, 2596, 2597, 2598, 2599, 1647, 1957, 1646 of 2002, 8677, 8678, 9666, 9067, 9068, 10273, 10292, 10295, 10305, 10306, 15649, 15650, 16308, 18477 of 2001, heard on 22nd July, 2002.

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

‑‑‑‑S.105‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑‑Constitution of Pakistan (1973), Arts.4 & 199‑‑‑Constitutional petition‑‑‑Lease of property‑‑‑Enhancement of rent/fee of leased property‑‑‑Duty of public functionaries‑‑‑Rent/fee of leased properties having been enhanced by the Authorities, petitioners/lessees filed representation before the Authorities against such enhancement, but same was rejected by the Authorities without any reason and without applying their independent mind‑‑­Authorities being public functionaries, were duty bound to take action on said representation keeping in view principle of fair play‑‑‑Public functionaries were duty bound to decide representation of petitioners after applying their independent mind with reasons, without fear, favour, nepotism and within reasonable time as envisaged by Art.4 of the Constitution of Pakistan (1973) and under S.24‑A of General Clauses Act, 1897‑‑‑Order on representation of petitioners passed by Authorities without hearing petitioners was not sustainable in the law as the same was passed in violation of principles of natural justice‑‑‑High Court set aside order passed by Authorities anti remanded case to decide afresh in accordance with law after providing proper hearing to all concerned including petitioners.

Messrs Airport Support's case 1998 SCMR 2268; Zain Yar Khan’s case 1998 SCMR 2419; Zahid Akhtar's, case PLD 1995 SC 530; Zakir Ahmad's case PLD 1965 SC 90; Pakistan and others' case PLD 1987 SC 304 and Pakistan Chrome Mines case 1983 SCMR 1208 ref.

Ch. Hamid‑ud‑Din and Ch. Aitzaz Ahsan for Petitioner.

Irfan Masood Sheikh, Legal Advisor and Jehangir A. Jhojha for Respondent.

Date of hearing: 22nd July, 2002. ,

2003 C L C 335

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD TARIQ MAHMOOD and 2 others‑‑‑Petitioners

Versus

ANJUMAN KASHMIRI BRADARI KHISHT FAROSHAN through President Abdul Ashfaq and 21 others‑‑‑Respondents

Civil Revision No. 815 of 2000, heard on 22nd May, 2002.

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

‑‑‑‑O. VII, R. 11‑‑‑Rejection of plaint‑‑‑Principle‑‑‑While considering application under the provisions of O.VII, R.11. C.P.C., the Court has to simply examine the statement made in the plaint.

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

‑‑‑‑O. VII, R. 11‑‑‑Term `cause of action'‑‑‑Connotation‑‑‑Cause of action is bundle of facts, which have been alleged by the plaintiff in the plaint‑‑‑To ascertain cause of action only the facts stated in the plaint are to be construed to determine whether such facts constitute a cause of action‑‑‑Facts constituting a cause of action are the whole of the material facts which are necessary for the plaintiff to allege and prove in order to succeed.

National Development Finance Corporation v Messrs Leepa Shoes Ltd., Mirpur 1992 MLD 474 rel.

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

‑‑‑Ss.35 & 42‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑‑Interim injunction‑‑‑Stay of legal proceedings‑‑‑Contention of the defendant was that the suit had been filed with mala fide intention to frustrate the ejectment order passed by the Rent Controller ‑‑‑Validity‑‑­Mere filing of suit challenging the sale‑deed would not be helpful to the tenant/plaintiff, unless and until the ejectment order passed by competent Court of law against tenant was stayed by the Court of competent jurisdiction by issuing stay order under O.XXXIX, Rr.1 & 2 read with S.151, C.P.C.

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

‑‑‑O. VII, R.11 & O.XXXIX, Rr.1 & 2‑‑‑Proceedings under O.VII, R.11 & O.XXXIX, Rr.1, 2, C.P.C.‑‑‑Object and scope ‑‑‑Distinction‑‑­Lot of difference exists between the scope of proceedings in application under O.XXXIX, Rr.1 & 2, C.P.C. filed by plaintiff or grant of temporary injunction in pending proceedings and rejection of plaint under O.VII, R.11, C.P.C. on account of failure to disclose cause of action in plaint or plaint being barred under some provision of law‑‑‑ court in case of proceedings under O.XXXIX, Rr.1 & 2, C.P.C. while Deciding application for grant of temporary injunction ascertains existence or otherwise of prima facie case, balance of convenience and :possibility of irreparable loss/injury to the party seeking injunction in the case if the relief is withheld‑‑‑While considering existence or otherwise of a prima facie case in proceedings under O.XXXIX, Rr.1 & 2, C. P. C., The Court is only entitled to look into the pleadings of the plaintiff and lie documents filed by him in support of his case but it can also take into consideration the documents and pleadings filed by the defendant‑‑‑Court while rejecting a plaint under O.VII, R.11, C.P.C. on the ground that the plaint failed to disclose any cause of action or the suit is barred under some provisions of law the extent of examination of the relevant facts by the Courts to reach a conclusion has to be only the basis of averments made in the plaint and any other material or document which is admitted by the plaintiff.

Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 and Mst. Azra Mansoor and others v. Mst. Zulakha Bai and others 2001 MLD 1469 ref.

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

‑‑‑‑Ss. 35 & 42‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑­Plaint, rejection of‑‑‑Allegations in plaint requiring inquiry after recording of evidence‑‑‑Suit property was alleged to be a joint property between Beradri (fraternity) of the parties and was inalienable and indivisible‑‑‑Defendants sold a portion of the property vide registered sale‑deed‑‑‑Plaintiffs assailed declaration and cancellation of registered sale‑deed‑‑‑Defendants filed application under O.VII, R.11, C.P.C. for rejection of plaint which was accepted by the Trial Court and the plaint was rejected‑‑‑Appellate Court allowed the appeal against judgment and decree passed by Trial Court and application was dismissed‑‑‑Contention of the defendants was that the plaintiffs were tenants in the suit property and to frustrate the execution proceedings before Rent Controller against them, the suit was filed with mala fide intention‑‑‑Validity‑‑‑Allegations made in the plaint required a full‑fledged inquiry after recording evidence‑‑‑On the basis of the facts mentioned in the plaint and the documents relied upon by the plaintiffs, the provisions of O. VII, R.11, C.P.C. were not attracted and the plaintiffs could not be non‑suited‑‑­Defendants could raise all the objections at the time of final adjudication of the suit including the objection of grant of temporary injunction against the execution of the ejectment order if occasion had arisen‑‑‑Trial Court fell in error while rejecting the plaint by applying provisions of O.VII, R.11, C.P.C. and Appellate Court had rightly reversed the judgment and decree of the Trial Court.

Khadim Hussain v. Jamal Hussain and 2 others 1997 MLD 2952 and N.A. Shahryar v. Messrs Conforce Limited, Lahore 1981 CLC 1009 ref.

C. M. Sarwar for Petitioners.

Rashid Akram Rana and Nisar Ahmad Beg for Respondents.

Date of hearing: 22nd May, 2002.

2003 C L C 344

[Lahore]

Before Ch. Ijaz Ahmad, J

Dr. KHALID AZIZ, ASSISTANT PROFESSOR OF FORENSIC MEDICINE AND TOXICOLOGY, K.E. MEDICAL COLLEGE; LAHORE and 10 others‑‑‑Petitioners

Versus

VICE‑CHANCELLOR, UNIVERSITY OF THE PUNJAB, LAHORE and 5 others‑‑‑Respondents

Writ Petition No. 6888 of 1993, decided on 11th July, 2002.

(a) Educational institution‑‑‑

‑‑‑‑Admission in M. Phil Forensic Medicine‑‑‑Principle of locus poenitentiae‑‑‑Applicability‑‑‑University of Punjab Introduced course of M. Phil Forensic Medicine‑‑‑Candidates joined said course, completed the same, were permitted to take part in examination and were declared successful by University vide its Notification‑‑‑Pakistan Medical and Dental Council, took decision not to recognize arrangements . at Department of Forensic :,Medicine at the Medical College for qualification of MPhil Examination and it was decided that University of Punjab had no; authority to admit candidates in M. Phil Forensic Medicine unless and until, Pakistan Medical and Dental Council had recognized the same under provision of law‑‑‑Candidates had contended that as they had secured admission on advertisement made by University of Punjab qua admission in said course and had completed same, principle of locus poenitentiae was attracted in their case and University of Punjab had no authority to wriggle out from that situation‑‑­Contention was repelled as principle of locus poenitentiae was not attracted in their case ‑‑‑Affiliation/recognization to University of Punjab could not be granted with Pakistan Medical and Dental Council as of right.

Pakistan through Secretary v. M. Himayatullah PLD 1969 SC 407; Nazir Ahmad v. Pakistan and 11 others PLD ,1970 SC 453; Rahimyar Khan College of Education's case PLJ 1981 Pesh. 55; Jilal‑ud­-Din's case PLD 1992 SC 207; Rahimyar Khan College of Education v. Islamia University, Bahawalpur 1996 CLC 64; Noor Muhammad Khan v.' Vice‑Chancellor, Gomal PLD 2001 SC 219 and Rahimyar Khan College's case 1996 SCMR 341 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑High Court had no jurisdiction to resolve question of fact in its Constitutional jurisdiction.

Ch. Muhammad Younus Khan's case 1993 SCMR 618 ref.

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

‑‑‑‑Art. 4‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑‑Duty and obligation of public functionaries‑‑‑Duty and obligation of public functionaries was to decide representations of citizens without fear, nepotism and within reasonable time.

Messrs Airport Support Service's case 1998 SCMR 2268. ref.

Petitioner No. 1 in person.

Miss Alia Fatima on behalf of Dr. A. Basit, Legal Advisor of the Punjab University.

Date of hearing: 11th July, 2002.

2003 C L C 348

[Lahore]

Before Maulvi Anwarul Haq and Pervaiz Ahmad, JJ

Mian NAVEED AHMAD and 3 others‑‑‑Appellants

Versus

Haji MUHAMMAD SHAFI and 2 others‑‑‑Respondents

Regular First Appeal No.244 of 1994, decided on 6th June, 2002.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑--

‑‑‑‑Ss. 2(a), 5, 6 & 13‑‑‑Suit for pre‑emption ‑‑‑Maintainability of‑‑‑Suit was resisted by defendant on the ground that since suit land was located within urban area, it stood excluded from definition of immovable property contained in S.2(a) of Punjab Pre‑emption Act, 1991 and was not subject to pre‑emption ‑‑‑Contention of plaintiffs was that S.2(a) of Punjab Pre‑emption Act, 1991 which had effect of excluding right of pre‑emption in the land located within urban area having been declared to be repugnant to Injunctions of Islam‑‑‑Suit could not be dismissed on that ground‑‑‑Validity‑‑‑Sale in respect of suit land which undoubtedly was located within urban area, had taken place on 9‑5‑1992 and suit was filed by plaintiffs on 8‑9‑1992 whereas judgment of Supreme Court declaring S.2(a) of the Act as repugnant to Injunctions of Islam had taken effect on 31‑12‑1993 that is subsequent to filing of suit ‑‑‑Pre‑emptor had to establish that he was vested with right of pre‑emption on three crucial dates, date of sale, date of filing of suit and date when decree was passed ‑‑‑Pre‑emptors, in case, were not vested with right of pre‑emption in respect of suit land on date of sale as well as on date of institution of suit‑‑‑Plaint filed by plaintiff, in circumstances was rightly rejected by Trial Court.

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 ref.

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

‑‑‑‑Art. 203‑D(2)‑‑‑Declaration of law as repugnant to Injunctions of Islam‑‑‑Where Court would decide that any law or provision of law was repugnant to Injunctions of Islam, it would specify day on which decision of Court would take effect.

Ch. Shahbaz Khurshid for Appellants.

Nemo for Respondents.

Date of hearing: 6th June, 2002.

2003 C L C 351

[Lahore]

Before Sayed Zahid Hussain, J

Subedar FATEH KHAN through his Legal Heirs‑‑‑Petitioner

Versus

MEMBER, BOARD OF REVENUE (CHIEF SETTLEMENT COMMISSIONER), PUNJAB, LAHORE‑‑‑Respondent

Writ Petition No. 15‑R of 1996, heard on 29th April, 2002.

Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑--

----Ss. 10 & 11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.3, proviso‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Cancellation of allotment‑‑‑Land in dispute was cancelled under Ss.10 & 11 of Displaced Persons (Land Settlement) Act, 1958, being in excess of the entitlement of the petitioners‑‑‑Chief Settlement Commissioner while deciding the matter found four petitioners as entitled to acquire land on payment of price at the rate of Rs.100 per produce index unit while the remaining petitioners were not found entitled to purchase the land on payment of market price‑‑‑Validity‑‑‑Predecessor‑in‑interest of the petitioners who had alienated the land to them was eligible at least to purchase land up to subsistence holding i.e. 12‑1/2 acres, and the remaining petitioners who were ladies could have legitimate claim to the extent under S.3 of Evacuee Property and Displaced Persons Law (Repeal) Act, 1975‑‑­Where the remaining petitioners were not found to have fulfilled the criteria of possession as per S.3 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, view of the Chief Settlement Commissioner‑ could not be discredited‑‑‑Order passed by the Chief Settlement Commissioner needed to be modified to the extent that the remaining petitioners would be given benefit of S.3 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, to the extent of their predecessor‑in‑interest was entitled‑‑‑High Court declined to interfere with the. order passed by the Chief Settlement Commissioner‑‑‑Petition was disposed of accordingly.

Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 and Lt.-Col. (Rtd.) Munir Hussain and others v. The Chief Settlement commissioner/Member Board of Revenue and others 1987 SCMR 1240 ref.

Malik Noor Muhammad Awan for Petitioners.

M.Z. Khalid for Respondents.

Dates of hearing: 26th and 29th April, 2002.

2003 C L C 355

[Lahore]

Before Karamat Nazir Bhandari, J

PROVINCE OF PUNJAB through Secretary to Government of Punjab, Housing and Physical Planning Department, Lahore and another‑‑‑Petitioners

Versus

Sufi ABDUL HAMEED‑‑‑Respondent

First Appeal from Order No.213 of 1992, decided on 17th July, 2002.

Arbitration Act (X of 1940)‑‑‑

‑‑‑Ss. 20, 30 & 39‑‑‑Application for filing arbitration agreement in Court‑‑‑Award, objection to‑‑‑Making award rule of the Court‑‑­Appeal‑‑‑Respondent filed application under S.20 of Arbitration Act, 1940 seeking direction for filing of 'arbitration agreement in Trial Court and for initiating arbitration proceedings‑‑‑Trial Court without deciding application, nominated two Arbitrators to give award‑‑‑Arbitrators filed ward in Trial Court which was in favour of respondent to which objections were filed by the appellant‑‑‑Trial Court overruled objections and made award the Rule of the Court‑‑‑Trial Court had fell into error in proceeding to appoint Arbitrators without directing filing of agreement in court and without even deciding application filed under S.20 of Arbitration Act, 1940‑‑‑Only after agreement had been filed that the Court could have ascertained whether dispute between the parties was covered by arbitration clause or not‑‑‑After such finding Court could proceed to direct reference to arbitration in accordance with terms of arbitration agreement, but in the present case Court had straightaway proceeded to appoint Arbitrators and directed them to file the award which procedure was illegal and had vitiated all proceedings‑‑‑Neither Court nor parties themselves could circumvent mandatory provisions of S.20(4) & (5) of Arbitration Act, 1940‑‑‑High Court allowing appeal, set ,side decree/award and remanded case to Trial Court to decide afresh in accordance with law‑‑‑Trial Court would proceed to decide question of ding arbitration agreement in first instance before making reference to Arbitrators.

Suleman Haji Muhammad & Co. v: State Bank of Pakistan PLD 1960 (W.P.) Kar. 78; University of the Punjab v. Perfect Electric. Concern PLD 1980 Lah. 305 and Union of India v. Muhammad Usman AIR 1965 All. 269 ref.

Muhammad Amin Lone, Asstt. A.‑G., Punjab assisted by Mian Ghulam Hussain for Appellants.

Riaz Karim Qureshi for Respondent.

Date of hearing: 12th July, 2002.

2003 C L C 359

[Lahore]

Before Ch. Ijaz Ahmad, J

NAZIR AHMAD‑‑‑Petitioner

Versus

FAISALABAD DEVELOPMENT AUTHORITY, FAISALABAD through Director‑General and 7 others‑‑‑Respondents

Writ Petition No. 13901 of 2002 decided on 1st August, 2002.

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

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), Ss.9, 91. 92 & O.I, R.8‑‑‑Constitutional petition ‑‑‑Maintainability‑‑‑Procedure‑‑­Applicability of provisions of C.P.C.‑‑‑Principles of Civil Procedure Code were applicable to Constitutional jurisdiction‑‑‑Petitioner had filed the Constitutional petition in a representative capacity without fulfilling mandatory requirements of 0.1, R.8, C.P.C. and without adopting proper procedure prescribed under Ss.91 & 92, C.P.C.‑‑­Constitutional petition was not maintainable in circumstances and was liable to be dismissed.

Hussain Bakhsh's case PLD 1970 SC 1 and Anjuman Araian Bhera's case PLD 1973 Lah. 500 ref.

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

‑‑‑‑Art. 199‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration and Constitutional petition‑‑‑Distinctive feature in their respective scope‑‑‑Constitutional jurisdiction was not a substitute of suit for declaration‑‑‑Constitutional jurisdiction was discretionary in character and could not be exercised in favour of petitioner who had concealed certain facts from the ,Court.

Nawab Raunaq Ali's case PLD 1973 SC 236; Abdul Rashid’s case 1969 SCMR 141 and Rana Muhammad Arshad's case 1998 SCMR 1462 ref.

Rustam Ali Baloch for Petitioner.

Ali Akbar Qureshi, Legal Adviser for Respondent No. 1.

2003 C L C 361

[Lahore]

Before Mian Nazir Akhtar, J

Mrs. PARVEEN QAMAR‑‑‑Petitioner

Versus

SECRETARY TO GOVERNMENT OF PAKISTAN, MINISTRY OF FINANCE, ISLAMABAD and 4 others‑‑‑Respondents

Writ Petition No.2072 of 1996, decided on 21st March, 2002.

(a) Special Savings Certificate Rules, 1990‑‑‑-

‑‑‑‑R. 14‑‑‑Constitution of Pakistan (1973), Arts.23, 24 & 199‑‑­Constitutional petition‑‑‑Request for cancellation of Special Saving Certificates (bearer) and issuance of fresh/duplicate certificates as the original certificate were robbed‑‑‑Investor who was predecessor‑interest of the petitioners, purchased Special Saving Certificates hearer), but same were robbed and investor immediately informed the concerned National Savings Authorities about the occurrence and a criminal case was got registered in that respect‑‑‑Investor requested the Authorities that robbed certificates be cancelled and fresh/duplicate certificates be issued to her, nut her request was turned down in view of R.14(3) of Special Savings Certificate Rules, 1990‑‑‑Validity‑‑‑Special Savings Certificates Rules, .1990 had not peen framed under any statutory authority and could be treated to be mere administrative instructions‑‑‑Even R.14(3) of Special Savings Certificates Rules, 1990 merely forbade issuance of duplicate certificates and investor though could not be entitled to claim duplicate certificates, but she was still within her right to claim return of investment made by her with profits, particularly when robbed certificates had not been got encashed by anyone‑‑‑Authorities had not sustained any pecuniary loss as they were holding investment made by investor which was in nature of a trust with them‑‑­Authorities were bound under law to refund the amount of investment with profits earned thereon under provisions of the Scheme to successor‑in‑interest of deceased investor‑‑‑Successors‑.in‑interest of deceased investor could not be deprived of their property in view of Constitutional guarantees enshrined in Arts.23 & 24 of Constitution of Pakistan (1973)‑‑‑Authorities were directed by High Court to refund entire investment made by deceased predecessor‑in‑interest of petitioners to his successors‑in‑interest on the basis of Special Saving Certificates with interest on furnishing bond by the petitioners.

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

‑‑‑‑Arts. 23 & 24‑‑‑Protection of property rights‑‑‑Government was supposed to be a fair litigant and was not expected to take up a position so as to deprive a citizen of his or her legitimate rights qua the property.

Mian Qamar‑ud‑Din Ahmad for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G. for Respondents.

Date of hearing: 21st March, 2002.

2003 C L C 367

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. REHMAT BIBI and 2 others‑‑‑Petitioners

Versus

A.C., MANDI BAHA‑UD‑DIN and 3 others‑‑‑Respondents

Writ Petition No. 10352 of 1992, decided on 30th July, 2002.

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

----‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Petitioners having not approached High Court with clean hands, discretion could not be exercised by High Court in favour of petitioners‑‑‑High court had no jurisdiction to substitute its own findings in place of findings of Courts below‑‑‑Constitutional petition was not maintainable against concurrent findings of fact arrived at by Tribunal below.

Sher Afzal Khan v. Haji Razi Abdullah and. others 1984 SCMR 228; Muhammad Hussain v. Additional District Judge, Gujranwala 1988, SCMR 1937; Kh. Bashir Ahmad v. The Additional Settlement Commissioner Rawalpindi and others 1991 SCMR1604; Muhammad Din and others. v. Ghulam Muhammad Naseem Sitidhuand others PLD 1991 SC 1; Syed Wajih‑ul‑Hassan Zaidi v. Government of Punjab and other, 1997 SCMR 1901; Ghafoor Bukhsh v. Haji Muhammad Sultan and others PLD 2000 SC 1933; Nawab Syed , Raunaq Ali's case PLD 1973 SC 236; Musaddaq's case PLD 1973 Lah. 600; Qaisar Shafiq Ullah's case 1994 SCMR 859 and Khuda Bukhsh v. Muhammad Sharif and another 1974 SCMR 279 ref.

(b) Practice and procedure‑‑‑

‑‑‑ Criminal proceedings as well as departmental proceedings could continue side by side.

The D. I.‑G. of Police, Lahore v. Anis‑ur‑Rehman Khan PLD 1985 SC 134 and Talib Hussain's case 1993 SCMR 2177 ref.

Ch. M. Abdullah for Petitioner.

M. Hanif Khatana. Addi. .A.‑G. for. Respondents.

Date of hearing: 30th July, 2002.

2003 C L C 370

[Lahore]

Before Muhammad Akhtar Shabbir, J

Malik GHULAM NABI JILANEE‑‑‑Petitioner

Versus

Mst. PIRZADA JAMILA JILANEE and 7 others‑‑‑Respondents

Writ Petition No. 1470 of 2002, decided on 28th May, 2002.

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

‑‑‑‑S. 5 & Sched.‑‑‑Dissolution of marriage on ground of khula'‑‑­Wife seeking dissolution of marriage on ground of Khula' had. deposed in her statement that she wanted divorce even at cost of her life, meaning thereby that she would prefer to die than to go and live with husband‑‑‑Genuine cause existed for their separation on basis of Khula' in view of such unhappy relationship and difference of temperaments between the parties‑‑‑Spouses could not be forced to live together in a hateful union and within limits ordained by Almighty Allah‑‑‑Court, in such situation was bound to terminate marriage tie between husband and wife‑‑‑Marriage is a civil contract between two opposite sexes for procreation of children and for social set‑up and any condition imposed on wife restraining her from exercising her, right of claiming divorce would be void ab initio‑‑‑No restriction could be imposed on wife contrary to principles of Islam and Sunna‑‑‑Holy Prophet (p.b.u.h.) had directed Muslim woman to get divorce on basis of Khula' if she was not able to lead her present life within the limits prescribed by Almighty Allah‑‑‑Wife could again and again take plea of Khula' if she established a case for grant of dissolution of marriage‑‑‑Family Court, in circumstances, had rightly decreed the suit filed by wife on ground of Khula'‑‑‑Prayer of defendant that plaintiff be restrained from re‑marrying any other person, could not be accepted as it was against principles of Qur'an and Sunna and Allah Almighty had given right to every body to contract marriage.

Petitioner in person.

2003 C L C 374

[Lahore]

Before Ch. Ijaz Ahmad, J

BASHIR AHMED and 5 others‑‑‑Petitioners

Versus

Mst. HAMIDA BEGUM and 5 others‑‑‑Respondents

Civil Revision No.739‑D of 1997, heard on 20th June, 2002.

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

‑‑‑‑S. 11‑‑‑Res judicata‑‑‑Once the matter had been concluded up to the Supreme Court then no Court would have jurisdiction to open the same on well‑known principle of res judicata.

Abdul Majid's case 1995 SCMR 429; Asif Jan Siddiqui v. Government of Sindh and others PLD 1987 SC 46 and Abdul Majeed and others v. Abdul Ghafoor Khan PLD 1982 SC 146 ref.

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

‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑High Court had very limited jurisdiction to interfere in findings of Courts below while exercising revisional jurisdiction under S.115, C.P.C., unless and until same was result of misreading or non‑reading of record.

N. S. Venkatagiri Ayyangar v. The Hindu Religious Endowment Board PLD 1949 PC 26 ref.

Muhammad Nawaz for Petitioners.

Syed Kaleem Ahmad Khurshid for Respondents.

Date of hearing: 20th June, 2002.

2003 C L C 379

[Lahore]

Before Maulvi Anwarul Hail, J

GHULAM HUSSAIN ‑‑‑Petitioner

Versus

IMAM DIN and 2 others ‑‑‑Respondents

Writ Petition No. 3079 of 1999, heard on 13th June. 2002.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 6 & 13‑‑‑Civil Procedure Code (V of 1909) , O. VII, R.11‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Suit for pre‑emption ‑‑‑Making of Talbs‑‑‑Rejection of plaint‑‑­Plaintiff on acquiring knowledge of sale of suit property made Talb‑i­-Mwasabit and after getting copies of relevant record issued notice to defendant under registered cover acknowledgment due, eight days after making Talb‑‑i‑Mwasabit‑‑‑Defendant filed application under O.VII, R.11, C.P.C. for rejection of plaint alleging that notice was not issued by plaintiff immediately after making Talib‑i‑Mwasabit‑‑­Trial Court rejected application. but Appellate court allowed the same in revision filed by defendant against order of Trial Court‑‑­Notice of Talb‑i‑Ishhad under S.13(3) of Punjab re‑emption Act, 1991, was to be sent as soon as possible after making Talb‑I-­Mwasabit, but not later than two weeks from date ‑ of the knowledge‑‑‑Notice of Talb‑i‑Ishhad was not issued by plaintiff later than two weeks of making of first Talb and acquisition of knowledge of sale, as same was issued after eight days‑ Appellate Court, in circumstances had acted without lawful authority while rejecting plaint of plaintiff on application filed by defendant ‑Order rejecting plaint passed by Appellate Court below was set aside by High Court.

Mir Sahib Khan v. Muhammad Rauf Khan 1992 SCMR 1780; Muhammad Gul v. Muhammad Afzal 1999 SCMR 724 and Sher Khan v. Baz Khan and others 1999 SCMR 2338 ref.

Nemo for Petitioner.

M. Sharif‑I for Respondent No.1.

Date of hearing: .13th June, 2002.

2003 C L C 382

[Lahore]

Before Ch. Ijaz Ahmad, J

HAIDER ZAMAN KHAN‑‑‑Petitioner

Versus

SECRETARY, IRRIGATION AND POWER, GOVERNMENT OF THE PUNJAB, CIVIL SECRETARIAT, LAHORE‑‑‑Respondent

Writ Petition No. 13282 of 2002, decided on 24th July, 2002.

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

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), S.11‑‑‑Second Constitutional petition qua the same subject‑matter and relief‑‑­Maintainability‑‑‑Principle of res judicata, applicability of‑‑­Principles of Civil Procedure Code, 1908 being applicable in Constitutional proceedings, second Constitutional petition qua the same subject‑matter and relief in view of S.11, C.P.C. was not maintainable.

Hussain Bakhsh's case PLD 1970 SC 1 and Pir Bakhsh's case PLD 1987 SC 145 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑Nature of‑‑‑Constitutional remedy is discretionary in character‑‑‑Petitioner having concealed material facts from High Court, its discretionary power could not be exercised in favour of petitioner.

Abdul Rashid v. Pakistan and others 1969 SCMR 141 and Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 ,ref.

Sheikh Munir Ahmad for petitioner.

Malik Khizar Hayat Khan, Asstt. A.‑G. (on Court's call).

2003 C L C 385

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD AKRAM through General Attorney‑‑‑Appellant

versus

Mst. NAEEMA IRSHAD and another‑‑‑Respondents

First Appeal from Order No.363 of 2002, decided on 8th August, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑O. VIII, R. 10‑‑‑Closing right of defendant to file written statement‑‑‑Defendant could not file written statement as copy of the plaint was not provided to him by the plaintiff‑‑‑Trial Court adjourned hearing of case for filing written statement as a last opportunity‑‑‑On adjourned date of hearing defendant filed application praying that plaintiff be directed to deliver copy of plaint so that he could file written statement‑‑‑Trial Court rejected application filed by defendant and closed right of defendant to file written statement‑‑‑No specific order was passed for filing written statement except one when case was adjourned for filing written statement as a last opportunity as previous orders were passed in routine as on three dates of hearing Presiding Officer was either on leave or was on some duty‑‑‑At no point of time copy of plaint was handed over to defendant which though was not always sufficient ground for non‑filing of written statement, but plaintiff was to some extent, under obligation to deliver copy of plaint to the defendant‑‑­Defendant having not been provided sufficient opportunity for filing written statement, order passed by Trial Court whereby right of defendant to file written statement was closed, was not sustainable in law‑‑‑Defendant was provided further opportunity to file his written statement.

Westinghouse Electric Corporation, The Quardangle, 4400 Alafaya Trial Orlando Florida U.S.A. and 3 others v. Wak Orient Power and Light Limited, Gulberg‑III. Lahore PLD 2001 Lah. 143 ref.

Shahid Iqbal Mian for Appellant.

Qamer Nazir Bhatti for Respondent No. 1.

Syed Khalid Hassan Naqvi for Respondent No.2.

2003 C L C 389

[Lahore]

Before Tassaduq Hussain Jillani, J

M.D. TAHIR, ADVOCATE‑‑‑Petitioner

versus

FEDERAL GOVERNMENT through Cabinet Division, Islamabad and another‑‑‑Respondents

Writ Petition No. 13051 of 2002, decided on 19th July, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 41, 51, 91 & 199‑‑‑Constitutional petition‑‑‑General election‑‑‑Prescribing minimum educational qualification for voter and for President and Prime Minister‑‑‑Petitioner had sought two directions: Firstly that Government should be directed to prescribe Matriculation as minimum education qualification for a voter in general election and secondly a minimum qualification not less than a Ph.D., Barrister‑at‑Law or LL.M. for office of President and Prime Minister‑‑‑Validity‑‑‑Right to vote is a fundamental right recognized in all established democracies‑‑‑Constitution of Pakistan had envisaged a democratic and Federal Republic and Art.51 thereof had prescribed qualification of voter‑‑‑Attempt to prescribe electoral. qualification for a voter or for Head of State and Government was based on a presumption that only literates could make right kind of choices and that they were more honest, but that presumption was belied by historical experience‑‑‑Democracy is a form of Government which was of the people, by the people and for the people‑‑‑Said system of governance was based on faith in the collective wisdom of the people‑‑‑Voters through their elected parliamentarians express what is their interest, what ails the Society and how they would like to resolve the issues‑‑‑In present age of electronic and print media one need not necessarily require any educational qualification to understand the common problems‑‑In a country where only about 35 % of the population could read or write, any attempt to prescribe matriculation as a minimum educational qualification for a voter would tantamount to disfranchise a great majority of the people which would not be in accordance with the spirit of Constitution‑‑‑To prescribe educational qualification for President and Prime Minister of the, kind which had been prayed for by petitioner would limit choice of electoral college and would restrict the offices only to a privileged few which was antithesis of what democracy stood for.

M.D. Tahir Petitioner (in person).

2003 CLC 391

[Lahore]

Before Ch. Ijaz Ahmad. J

FAZAL MEHMOOD and another‑‑‑Petitioners

versus

TEHSIL MUNICIPAL ADMINISTRATION through Tehsil Nazim, Okara and 2 others‑‑‑Respondents

Writ Petition No. 13991 of 2002. decided on 2nd August. 2002.

(a) Punjab Local Government Ordinance (XIII of 2001) ‑‑‑

‑‑‑‑S. 190‑‑‑Constitution of Pakistan (1973). Art. 199‑‑‑Constitutional petition‑‑‑Petitioner had alternative remedy under provisions of Punjab Local Government Ordinance. 2001 and rules framed thereunder‑‑‑Constitutional petition was not maintainable in circumstances.

Sh. Abdul Rahim v. Federation of Pakistan PLD 1999 SC 670; Muhammad Suleman v. Abdul Ghani PLD 1978 SC 190: A1­Jehad Trust v. Federation of Pakistan PLD 1997 SC 84, B.P. Biscuit Factory v. Wealth Tax Officer 1996 SCMR 1470: Raja Muhammad Ramzan v. Zila Council PLD 1992 Lah. 324: Raja Mehmood's case 1994 SCMR 1484; Raja Ramzan's case 1994 MLD 930; ICI Pakistan's case 1993 MLD 32; Kh. Abdul Waheed's case PLD 1978 Lah. 811; 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; Rifaat Askari v. The State PLD 1997 Lah. 285 and Zahid Akhtar's case PLD 1995 SC 530 ref.

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

‑‑‑‑Arts. 189 & 190‑‑‑Judgment of Supreme Court‑‑‑Judgment of Supreme Court had binding effect on each and every organ of the State.

Mian Ashiq Hussain for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G. (on Court's call).

2003 C L C 394

[Lahore]

Before Maulvi Anwarul Haq, J

Mian MUHAMMAD ASIF‑‑‑Petitioner

versus

Mst. FARKHANDA ANWAR and 5 others‑‑‑Respondents

Civil Revision No. 1222 of 2002, heard on 29th June, 2002.

Partition Act (I of 1893)‑‑‑

‑‑‑‑S. 4‑‑=-tamp Act (II of 1899), S.29 & Art.45, Sched.1 ‑‑‑ Partition suit‑‑‑Stamp duty‑‑‑Payment of‑‑‑Execution of decree‑‑‑Every party, in a partition suit, would be a decree‑holder and judgment‑debtor at the same time or in other words every party to a partition suit would be plaintiff or defendant‑‑‑Decree in a partition suit could not be executed without payment of stamp duty as same could not be deemed to be a money decree‑‑‑Partition decree would be treated as instrument of partition and burden to pay stamp duty was to be shared by all the parties to the suit‑‑‑Stamp duty under Art.45. Sched. I of Stamp Act, 1999, was payable at Rs.3 % for the amount or value of separated share or shares of property.

Mrs. Sahib‑un‑Nisa and others v. Mrs. Mehmood Begum PLD 1959 (W.P.) Lah. 511 and Popi Mal v. Vidya Wanti and others AIR 1942 Lah. 260 ref.

Muhammad Ahmad Qayyum for Petitioner.

Muhammad Anwar (Attorney) of Respondent No. 1.

Nemo for the Remaining Respondents.

2003 C L C 397

[Lahore]

Before Ch. Ijaz Ahmad, J

KISHWAR BANOO and 2 others‑‑‑Petitioners

versus

METROPOLITAN CORPORATION, LAHORE through Administrator and another‑‑‑Respondents

Civil Revision No. 1571 of 2002, decided on 15th July, 2002.

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

‑‑‑‑O. XXVI, R. 9‑‑‑Local Commission, appointment of‑‑­Discretionary with the Court whether to appoint a Local Commission or not and Court was not bound to so appoint in all cases‑‑‑Where controversy could be resolved by producing evidence by parties, then spot inspection through Local Commission was not permissible‑‑‑Court has to decide necessity of local investigation‑‑‑Court with within its discretion to directing the holding of local investigation and also was justified in directing the parties to pay fee of the Commissioner‑‑‑Belated application to appoint local Commissioner was not permissible.

Zahooruddin v. Haji Hussain and others PLD 1991 Kar. 205; P. Moosa Kutty's case AIR 1953 Mad. 717: Ghulam Rasool and others v. Khuda Bakhsh and others 1995 CLC 26; Ghulam Rasool v. Canal Authorities 1995 MLD 999; Dharmodas Mondal v. Kashi Nath De AIR 1959 Cal. 243; 20 DLR 301 and Waleed Haider v. Additional District Judge and others 1994 MLD 1246 ref.

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

‑‑‑‑O. XXVI, R. 9‑‑‑Local Commissioner, appointment of‑‑‑Local Commissioner could not be appointed by Appellate Court just in routine without judicial application of mind to facts of a particular case.

Muhammad Khalid v. Sabir Hussain and 12 others 1994 CLC 1343 ref.

Khan Wafadar Khan for Petitioner.

Kh. Muhammad Afzal, Legal Advisor of M.C.L.

2003 C L C 400

[Lahore]

Before Mrs. Nasira Iqbal, J

MUHAMMAD ASHIQ---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, OKARA and 2 others---Respondents

Writ Petition No.24841 of 2000, decided 22nd May, 2002.

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

----S. 5, Sched. & S,9---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Suit for recovery of dower amount--­Defendant resisted the suit contending that Rs.50,000 was fixed as deferred dower in Nikahnama and Rs.500 was fixed as prompt dower and that prompt dower (Rs.500) was paid to the plaintiff at the spot and deferred amount of Rs.50,000 was also paid to plaintiff regarding which plaintiff had signed a written receipt/agreement in presence of witnesses---Family Court dismissed the suit, but Appellate Court setting aside judgment of Family Court decreed the, suit--- Document/receipt, relied upon by defendant was neither appended by defendant with his written statement nor it was mentioned in the list of reliance---Defendant also had not produced marginal witnesses of the said alleged receipt/agreement---Defendant had not complied with provision of S.9 of West Pakistan Family Courts Act, 1964 and did not even confront the plaintiff with alleged receipt/agreement relied upon by him when plaintiff appeared in Court and plaintiff had no opportunity to deny execution of alleged receipt/agreement--­Document relied upon by defendant which was produced belatedly was written on paper which was purchased and executed at the time when no dispute existed between the parties and no specific mention of said document was made by defendant in his written statement--­No plausible explanation was given by the defendant for producing the said document belatedly--Possibility that document was a product of fraud and forgery, could not be excluded---Appellate Court, in circumstances, had rightly set aside judgment and decree of Family Court and had rightly decreed the suit filed by plaintiff for recovery of amount of dower---Judgment and decree passed by Appellate Court, could not be interfered with by High Court.

Syed Qamar Ahmad and another v. Anjum Zafar and others 1994 SCMR 65 and Sikandar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 730 ref.

Arif Chaudhry for Petitioner.

Zafar Iqbal Chohan for Respondent No.3.

Date of hearing: 22nd May, 2002.

2003 C L C 405

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD JAHANGIR---Petitioner

versus

POSTMASTER-GENERAL PUNJAB, LOWER MALL. LAHORE and 2 others---Respondents

Review Petition No. 1328 of 2002 decided on 14th June. 2002.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54-Civil Procedure Code (V of 1908), O. XXXIX, Rr.l & 2---Suit for declaration and permanent injunction---Stay order, grant of---Plaintiff who was employee of defendant filed application for allotment of house to him, but his application was rejected and plaintiff filed suit for declaration and permanent injunction---Plaintiff alongwith suit also filed stay application under O.XXXIX, Rr.l & 2, C.P.C. which was concurrently dismissed by Trial Court and Appellate Court---Validity---Applicant who was expelled from his employment of daily wages had also filed a case before Labour Court with regard to his retaining the flat on basis of his employment--­Labour Court having turned down plea of applicant, he filed appeal before Labour Appellate Tribunal where the same was pending--­Applicant could not invoke jurisdiction of two Courts at one time especially when he was no more in service of the defendants--­Plaintiff/applicant, in circumstances, neither had a cause of action nor locus standi to institute suit---Applicant having no prima facie case. his stay application as well as plaint were rightly dismissed--­Concurrent judgments of Courts below not suffering from any illegality or irregularity, could not be interfered with by High Court.

Shahzada Muhammad Umar Beg v. Sultan Mehmood Khan and another PLD 1970 SC 139; Estate Officer, Government of Pakistan v. Syed Tahir Hussain PLD 1962 SC 75; Iris Sammuel Gill v. Government of Punjab PLD 1979 Lah. 467; Dr. Manir Ahmad, M.B.,B.S., Medical Officer v, Chairman House Allotment Committee and others 1983 CLC 1783 and Imtiaz Hussain v. Government of Pakistan and 2 others 1992 CLC 1122 ref.

Asmat Kamal Khan for the Petitioner.

2003 C L C 419

[Lahore]

Before Muhammad Akhtar Shabbir, J

S.M.I. BROTHERS through Managing Partner---Appellant

Versus

MUNICIPAL COMMITTEE, MURREE through Administrator-- -Respondent

First Appeal from Order No.71 of 2002, heard on 13th June, 2002.

(a) Arbitration Act (X of 1940)---

----Ss. 14(2), 17, 30 & 33---Award, setting aside of---Jurisdiction of Civil Court---Scope---While making award rule of the Court, the Court has to examine the validity of award within a limited scope and from the contents of award itself, without going deeply through evidence recorded by Arbitrator or undertaking reappraisal thereof to discover any error or infirmity in the award---If it was intended to ascertain whether any error was apparent on the face of award or that any intentional disregard of law had taken place, every reasonable and lucid intendment should be rendered as far as possible, in favour of the award rather than vitiating the same---Arbitrator being a forum of first instance to appraise evidence, his finding need not be set aside - simply on the basis of meritless formal objection.

Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1984 SCMR 597 ref.

(b) Arbitration Act (X of 1940)---

----Ss. 16, 30 & 33---Award, setting aside of---Grounds enumerated.

Following are the grounds on which an award could be set aside:--

(i) That an Arbitrator or umpire has misconducted himself;

(ii) that an Arbitrator or umpire has misconducted the proceedings;

(iii) that the award is made after the proceedings had become invalid under section 35 of Arbitration Act, 1940;

(iv) that the award is made after the award is superseded;

(v) that the award is improperly procured; and

(vi) that the award is otherwise invalid.

Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1984 SCMR 597 ref.

(c) Arbitration Act (X of 1940)---

----Ss. 14(2), 17, 30, 33 & 39---Appeal---Setting aside of award--­Contractor claimed compensation for loss caused by replacement of the cable laid by him for Municipal Committee---Dispute was referred to the Arbitrator who found that the replacement of the cable under the direction of the Municipal Committee had caused loss to the Contractor---Arbitrator, after hearing the objections of the Municipal Committee and recording oral as well as documentary evidence passed award in favour of the contractor---Application under S.140 read with S.17 of Arbitration Act, 1940, was filed by the contractor---Process was issued by the Trial Court- and objections were filed by the Municipal Committee---Trial Court accepted the objections and the application filed by the contractor was dismissed with the result that the award was rejected---Validity---Trial Court while setting aside the award had not taken into consideration the settled proposition of law laid down by superior Courts and had passed the award in violation of provisions under Ss.14(2), 17, 30 & 33 of Arbitration Act, 1940---Order passed by the Trial Court was set aside and the application filed by the contractor under Ss.14(2) & 17 of the Arbitration Act, 1940, was accepted and the award was made rule of the Court.

Ashfaq Ali Qureshi v. Municipal Corporation, Mtfltan and another 1984 SCMR 597; Lahore Development Authority v. Messrs Khalid Javed & Co. 1983 SCMR 718; Zaka Ullah Khan v. Government of Pakistan through Secretary, Building and Roads Department, Lahore PLD 1998 Lah. 132; Messrs Alpha Insurance Co. Limited v. Messrs Ch. Nizam Din & Sons and another 2001 CLC 289; Amin Jute Baling Co. Limited v. Arninpur Union Cooperative Multipurpose Society Ltd. PLD 1961 Dacca 102; Altaf Hussain v. Duty Free Shop (Pvt.) Limited 2000 YLR 2021; Champsey Bhara & Co. v. Jivraj Balloo Spinning and Weaving Company Ltd. AIR 1923 PC 66; Saleh Mahmood Dossal v. Seth Nathoomal AIR 1927 PC 164; Suleman Haji Muhammad & Co. v. State Bank of Pakistan PLD 1960 (W.P.) Kar. 78 and Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1985 SCMR 597 ref.

Riaz Karim Qureshi for Appellant.

Muhammad Shoaib Abbasi for Respondent.

Date of hearing: 13th June, 2002.

2003 C L C 430

[Lahore]

Before M. Javed Buttar, J

UMAR MUJEEB SHAMI---Petitioner

Versus

DISTRICT MAGISTRATE/DEPUTY COMMISSIONER, ISLAMABAD and 2 others---Respondents

Writ Petitions Nos.2271 and 2351 of 2001, heard on 30th July, 2002.

(a) General Clauses Act (X of 1897)---

----Ss. 6 & 24---Constitution of Pakistan (1973), Arts.89 & 264---Repeal of temporary legislation---Effect on permanent legislation ---Principle--­Repeal effected by temporary legislation is only a temporary repeal and a permanent enactment revives on the expiry of the repealing Ordinance.

Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26 and Pir Sabir Shah . v. Shad Muhammad Khan, Member, Provincial Assembly, N.-W.F.P. and another PLD 1995 SC 66 rel.

(b) West Pakistan Press and Publications Ordinance (XXX of 1963)---

----Preamble---Registration of Printing Press and Publications Ordinance (XLVIII of 1997), Preamble---Constitution of Pakistan (1973), Arts.89 & 264---Repeal of Registration of Printing Press and Publications Ordinance, 1997---Revival of West Pakistan Press and Publications Ordinance, 1963---Validity---On the expiry of Registration of Printing Press and Publications Ordinance, 1997, the West Pakistan Press and Publications Ordinance, 1963, being the permanent legislation having been approved by the Assembly, stood revived---West Pakistan Press and publications Ordinance, 1963, was thought revived, yet the same was no more effectively in existence because a large number of its provisions were declared to be against the Injunctions of Islam by Supreme Court in case titled Federation of Pakistan and others v. Public-at-large and others, reported as PLD 1988 SC 202 and ceased to have effect from 30-9-1988.

Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26; Federation of Pakistan and others v. Public-at­-large and others PLD 1988 SC. 202 and Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another PLD 1995 SC 66 . ref.

(c) West Pakistan Press and Publications Ordinance (XXX of 1963)----

----Ss. 4, 9, 10, 12, 23, 24, 48 & 49---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Scope---Law making power and incorporating proposed amendments in the statute--­Validity---High Court had no law-making powers and jurisdiction to incorporate amendments proposed by Supreme Court. in Ss.4, 9, 10, 12, 23, 24, 48 & 49 of West Pakistan Press and Publication Ordinance, 1963---High Court could not declare that amendments proposed by Supreme Court had become part of the statute.

(d) West Pakistan Press and Publications Ordinance (XXX of 1963)-----

----Ss. 4, 9, 10, 12, 23, 24, 48 & 49---Registration of Printing Press and Publications Ordinance (XLVIII of 1997), Ss.7 & 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Declaration, cancellation of---District Magistrate initiated proceedings under Registration of Printing Press and Publications Ordinance, 1997, against petitioner while proceeding ex parte against the petitioner, his declaration was cancelled---Contention of the petitioner was that as the Registration of Printing Press and Publications Ordinance, 1997, was repealed and West Pakistan Press and Publications Ordinance, 1963, had been revived, the proceedings by the District Magistrate were unlawful---Validity---Provisions of Ss.4, 9, 10, 12, 23, 24, 48 & 49 of West Pakistan Press and Publications Ordinance, 1963, being no more part of the statute the District Magistrate acted illegally in assuming jurisdiction under the same or the similar provisions of Registration of Printing Press and Publications Ordinance, 1997, which had lapsed long ago; High Court clarified that as there was vacuum in law, the Federal Government being the Constitutional Authority, had the jurisdiction to settle the disputes in accordance with the Islamic Common Law---Order passed by the District Magistrate was set aside in circumstances.

Muhammad Akhtar Hussain and 4 others v. Government of West Pakistan through the Chief Secretary to Government of West Pakistan, Lahore and 454 others PLD 1970 SC 146; Mahmood Hassan Harvi v. Federation of Pakistan through Secretary Interior, Government of Pakistan, Islamabad and 3 others PLD 1999 Lah. 320; Rehmat Khan v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and 3 others PLD 1993 Lah. 70; Noor Muhammad and others v.. Ghulam Mustafa and others 1999 SCMR 264; Riaz Ahmed v. The State 1998 SCMR 1729; Federation of Pakistan and another v. N.-W.F.P. Government and others PLD 1990 SC 1172; PLD 1989 SC 633; AI-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379; Human Rights' cases 1993 SCMR 2001; Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602; Shah Jahan and others v. Syed Amjad Ali Hawaldar and others 2000 SCMR 88 ref.

Muhammad Akram Sheikh and Muhammad Kamran Sheikh for Petitioner.

Maqbool Elahi Malik, A.-G., Punjab and Kh. Saeed-uz-Zafar, Dy. A.-G. for Pakistan for Respondents.

Habib-ul-Wahab Al-Khairi for Respondent No.4.

Date of hearing: 30th July, 2002.

2003 C L C 442

[Lahore]

Before Tassaduq Hussain Jilani and Abdul Shakoor Paracha, JJ

Ch. NISAR ALI KHAN---Appellant

Versus

GHULAM SARWAR KHAN and 3 others---Respondents

Election Appeals Nos.103/A and 159/A of 2002, heard on 11th September, 2002.

(a) Conduct of General Elections Order [Chief Executive's Order No.7 of 2002]---

----S. 8A---Representation of the People Act (LXXXV of 1976), Ss.14(5), (5-A) & 99(1)(cc)---Representation of the People (Conduct of Election) Rules. 1977, Rr.4-A & 4-B---Nomination papers, objection against---Mode of disposal---Appellant's plea was that respondent had procured a Bachelor's Degree on the basis of a forged F.A. Certificate--­Returning Officer accepted nomination papers of respondent ---Validity--­Duty of Returning Officer was to see as to whether respondent was in possession of a Bachelor's Degree in terms of S.8A of Conduct of General Elections Order, 2002---Bachelor's Degree in favour of respondent was intact---Vice-Chancellor of University had so far not responded appellant's letter regarding invalidity of ,such Degree.--­College record showed difference of parentage of respondent---Not fair to give finding without detailed scrutiny, recording of evidence, hearing other examinee, examining F.A. Certificate submitted by respondent before University as such finding would have two-fold penal consequences i.e. disqualification for election and criminal offence---If respondent was allowed to contest election and if he succeeded, then appellant would still have a remedy to challenge election by way of election petition and by then Vice-Chancellor of University would have passed some order on appellant's letter and Election Tribunal would be in a better position to record evidence and pass appropriate order---If present appeal was allowed, same would oust respondent from election arena, which would be an irreparable loss---Wisdom of summary inquiry contemplated under S.14(5-A) of the Representation of the People Act, 1976 had such rationale behind---Issue raised was serious one, which High Court, because of having limited jurisdiction, left for resolution by appropriate forum under law---Appeal was dismissed being devoid of merits.

Waqar Hussain Butt v. District Returning Officer 2001 CLC 902; Ghulam Mustafa v. Returning Officer 2001 CLC 924; Sarfraz Khan v. Returning Officer 2001 MLB 788; Writ Petition No. 1968-D of 2001; Malik Abrar Ahmad v. Returning Officer and others Election Appeal No.181-R of 2002; Ch. Muhammad Aslam Sindhu v. Tariq Mehmood and others Election Appeal No.311(A) of 2002; Election Appeals Nos.36(A) and 5(A) of 2002; Pir Allay Immrawan and others v. Mian Muhammad Nawaz Sharif and another 1991 CLC 1 and Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736 ref.

(b) Representation of the People Act (LXXXV of 1976)----

----Ss. 14(5-A) & 99(1)(cc)---Income Tax Ordinance (XXXI of 1979), S.12(18)---Nomination papers, objection against---Non-disclosure of source of income to purchase plot---Respondent in column of liabilities of nomination papers showed certain amount taken by him as loan, with which he had purchased the plot---Appellant's plea that such amount if not received through cross-cheque would be deemed to be personal income of respondent in terms of S.12(18) of Income Tax Ordinance, 1979, could be an issue before Assessing Officer under the Income Tax Ordinance. 1979 but not before the Election Tribunal---High Court dismissed appeal being devoid of-merits.

Waseem Sajjad for Appellant (in Election Appeal No.103(A) of 2002).

Sardar Muhammad Latif Khan Khosa for Respondent.

Syed Mohsin Abbas for Appellant (in Election Appeal No. 159(A) of 2002).

Waseem Sajjad for Respondent candidate.

Naseem Sabir, Addl. A.-G. (on Court's call).

Shahid Waheed for the Board.

Date of hearing: 11th September, 2002.

2003 C L C 450

[Lahore]

Before Maulvi Anwarul Haq, J

Ch. SHABBIR HUSSAIN ‑‑‑Petitioner

Versus

ELECTION TRIBUNAL (MANZOOR HUSSAIN MALIK), DISTRICT AND SESSIONS JUDGE, ATTOCK CAMP AT RAWALPINDI and 10 others‑‑‑Respondents

Writ Petitions Nos.2622 and 2637 of 2002, decided on 17th September, 2002.

(a) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14(d)‑‑‑Character of candidate‑‑‑Registration of criminal cases against the candidate‑‑‑Denial of candidate qua registration of any criminal case or conviction in any case‑‑‑Record proved that the candidate had been convicted by Customs, 'Court on the charge of smuggling of goods and many F.I.Rs. had been registered against him‑‑­Effect‑‑‑Persistent denial of the candidate when confronted with the evidence on record, the Election Tribunal had rightly concluded that the candidate, was not a man of good character within the meaning of S. 14(d) of Punjab Local Government Elections Ordinance, 2.000‑‑‑Candidate, in the present case, aspired for the office of Nazim of Union Council, which was the basic structure of local/District Government, thus by virtue of that office, Nazim was automatically a member of District Assembly and so on‑‑‑Facts emanating from the documents and the conduct of the candidate during the course of election petition did nor qualify him to hold the office of Nazim‑‑‑Candidate was not qualified in circumstances.

Muhammad Iqbal v. D.R.O. and others NLR 2002 Civil 59 and Muhammad Shabbir Abbasi v. Abdur Rashid Mughal 1984 CLC 27 ref.

(b) Punjab Local Government Elections Ordinance (V of 2000)‑-----

‑‑‑Ss. 14(d), 16(1)(2) & 18‑A(2) [as added by Punjab Local Government Elections (Second Amendment) Ordinance (VII of 2000)]‑‑‑Punjab Local Government Elections Rules, 2000, Chap. X [Rr.70 to 92] & Rr.16, 18, 80 & 81‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Election of Nazim and Naib‑Nazim as joint candidate‑‑­Declaring election of returned candidates as void‑‑‑Allegations were made against the character of candidate elected as Nazim‑‑‑No allegation was raised against the candidate elected as Naib‑Nazim and no disqualification was attributed to him‑‑‑Allegations against Nazim were proved during the proceedings and Election Tribunal declared the election of Nazim and Naib‑Nazim as void and the contesting candidates were declared as returned candidates‑‑‑Validity‑‑‑Provisions made in the Punjab Local Government Elections Ordinance, 2000, would have to take precedence over Rr.16 & 18 of Punjab Local Government Elections Rules, 2000‑‑‑Order passed by Election Tribunal to the extent of Naib‑Nazim was set aside and regarding Nazim was maintained.

Tariq Mahmood v. District Returning Officer, District. Faisalabad and 3 others 2001 SCMR 1991; Ghulam Mustafa and another v. Returning Officer, Union Council No.71‑78/Assistant Commissioner, Daska 2001 CLC 924 and Liaquat Ali Ranjha and another v. District Judge, Mandi Bahauddin 2001 MLD 864, ref.

(c) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 16(1)(2) & 18(3), proviso‑‑‑Nomination papers of Nazim or Naib­ Nazim as join candidates‑‑‑Effect‑‑‑In case of rejection of nomination papers of either of the joint candidates, the nomination as a whole of both the candidates stands rejected under R.16(1)(2) read with R.18(3), proviso of Punjab Local Government Elections Rules, 2000.

(d) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Chap. X, [Rr.70 to 92] R.81‑‑‑Election of Nazim and Naib‑Nazim as joint candidates‑‑‑Allegation against both the candidates, a necessary requirement‑‑‑Validity‑‑‑Election of returned candidates is to be called in question by election petition made by a candidate for that election but there is no mandate or directive in Chap. X of Punjab Local Government Elections Rules, 2000, that in the matter of challenging the election of Nazim or Naib‑Nazim, both Nazim and Naib­Nazim are to be the petitioners or that election of both the persons is to be challenged compulsorily‑‑‑While assailing election of Nazim or Naib ­Nazim, the grounds as mentioned in R.81 of Punjab Local Government Elections Rules, 2000, are not to be alleged against both the office­holders.

Ch. Sultan Mansoor and Mahmoodul Hassan Awan , for Petitioner.

Muhammad Ilyas Sheikh for Respondents Nos. 10 and 11.

Date of hearing: 17th September, 2002.

2003 C L C 456

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar and Sayed Zahid Hussain, JJ

Mst. SATTO alias SATTAN‑‑‑Appellant

Versus

GAMAN through Legal Heirs and 8 others‑‑‑Respondents

Regular First Appeal No.23 of 1993, decided on 24th September, 2002.

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

‑‑‑‑O. VI, R.1‑‑‑Pleadings, proof of ‑‑‑Procedure‑‑‑Averments made in pleadings have to be proved by producing supportive evidence in accordance with law.

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

‑‑‑‑Ss. 8 & 42‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑‑Possession of immovable property‑‑‑Seeking of possession without declaration‑‑‑Disputed mutation, non‑assailing of‑‑‑Claim of the plaintiff was that she was in joint possession of the suit land through tenants and mutation of sale of the suit‑land attested in year 1967, was based on fraud‑‑‑Defendant contended that the plaintiff had validly sold the land in his favour and later on he participated in family partition proceedings regarding the land‑‑‑Plaintiff failed to substantiate her plea by producing evidence of any credible quality‑‑‑Preponderance of evidence available on record belied her assertion‑‑‑Plaintiff did not produce any tenant in the Trial Court and thus failed to prove that she ‑ had remained in possession and paid the share of the produce by the tenants‑‑‑Simply suit for possession was filed without assailing the mutation and no proceedings at any stage were taken by the plaintiff against the mutation either in the statutory hierarchy or before Civil Courts well in time‑‑­Plaintiff was not ignorant of the mutation attested in the year 1967, and the suit was filed in the year 1988, without having declared herself as owner‑‑‑Trial Court having not been satisfied with the evidence produced by the plaintiff dismissed the suit‑‑‑Validity‑‑‑Some irregularities pointed out in the proceedings of Revenue Authorities in sanctioning the mutation were of no material effect particularly in view of the conduct and long silence of the plaintiff in assailing the same‑‑‑Trial Court had rightly dismissed the suit.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990‑‑SC 1; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Mst. Amir Bibi v. Ata Muhammad Khan and 14 others 1992 SCMR 553; Muhammad Ishaq and 2 others v. Ghafoor Khan ‑and another 2000 SCMR 519; Muhammad Ishaq and others v. Ghafoor Khan and others 1999 YLR 1956 and Mst. Balqis Begum v. Ali Sher 1986 MLD 608 ref.

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

‑‑‑‑O. XX, R. 5‑‑‑Judgment, contents of‑‑‑Failure to refer specific number of issues in the judgment‑‑‑Judgment and decree passed by the Trial Court was assailed on the ground that the Trial Court did not make specific reference to issue regarding limitation‑‑‑Although no such reference was made, yet discussion in the judgment proceeded on the premises that the Trial Court was conscious of the issue and found that the suit was barred by time‑‑‑Validity‑‑‑No material difference would result. in non‑mentioning of the number of the. issues as the judgment of the Trial Court was fully supported by the evidence on record‑‑‑High Court declined to interfere with the judgment and decree passed by the Trial Court in circumstances.

Ch. Inayat Ullah Khan for Appellant.

Sh. Naveed Shaheryar for Respondent No. 1.

Ch. Hamid Mahmood Inayat for Respondents Nos.3 to 9.

Date of hearing: 16th September, 2002.

2003 C L C 462

[Lahore]

Before Mian Saqib Nisar, J

Mrs. ANIS HAIDER and 3 others‑‑‑Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 6 others‑‑‑Respondents

Writ Petition No. 15365 and Civil Revision No.631 of 2000, heard on 14th November, 2002.

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

‑‑‑‑S. 115‑‑‑Constitution of Pakistan (1973), Art.199 ‑‑‑ Constitutional petition‑‑‑Revision‑‑‑Pecuniary jurisdiction‑‑‑Less jurisdictional value‑‑­Assumption Of jurisdiction by High Court‑‑‑Validity‑‑‑Direct revision petition against the order of Civil Judge having jurisdictional value less than Rs.2,500,000, in ordinary course should have been decided by District Judge concerned but because of the connected Constitutional petition and also on account of the concurrence of the counsel for the parties, the same was disposed of by the High Court.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑Ss, 30, 32, 33 & 41‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑Award, setting aside of‑‑‑Provisions of S.12(2), C.P.C.‑‑­Applicability‑‑‑Award cannot be set aside except on the grounds enumerated either under S.30 or on the basis of S.33 of Arbitration Act, 1940‑‑‑Institution of suit on the ground whatsoever qua the decision of, upon existence, effects or validity of arbitration agreement or award is barred under S.32 of Arbitration Act, 1940‑‑‑Only because of provisions of S.41 of Arbitration Act, 1940, which makes the Civil Procedure Code, 1908, applicable to the proceedings before the Court in which the matter relating to arbitration are being adjudged, the application under 5.12(2); C.P.C. is not competent‑‑‑If the question arises that the proceedings and the orders of the Court may be in relation to the proceedings under Arbitration Act, 1940, have been procured through fraud and misrepresentation, such is not a question falling within the domain of Arbitration Act, 1940‑‑‑Bar contained under Ss.32 & 33 of Arbitration Act, 1940 would not be attracted rather the question would be connected with the proceedings of the Court independently and in order to seek setting aside of the same on the ground enunciated in S.12(2), C.P.C. only such application would be competent.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14, 30, 32, 33 & 41‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Setting aside of award‑‑‑Assailing arbitration proceedings on the basis of fraud and misrepresentation‑‑‑Remedy‑‑‑Application under S.12(2), C.P.C. was filed on the ground that predecessor‑in‑interest of the parties did not appoint any counsel or signed any pleadings to initiate the application under S.14 of Arbitration Act, 1940, furthermore signatures of the predecessor‑in‑interest of the parties was also missing on the arbitration application‑‑‑Petitioners challenged in application under S.12(2), C.P.C., the basis of the proceedings which had culminated into final decision of the Court making the award as a rule of Court‑‑‑Validity‑‑‑Only remedy against such dispute was applicable under S.12(2), C.P.C.

Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197; Muhammad Baran and another v. Islam‑ud-­Din and another 1989 MLD 1402 and Mian Muhammad Akram and others v. Muhammad Rafi 1989 CLC 15 ref.

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

‑‑‑‑S. 12(2) & O.VII, R.11‑‑‑Rejection of application under S.12(2), C.P.C. without holding proper inquiry‑‑‑Application under S.12(2), C . P.C. was filed on the basis of fraud and misrepresentation‑‑‑Effect‑‑‑To dismiss such application which required adjudication of factual controversy, based upon evidence to be led by the parties, the Court below had committed illegality and error of jurisdiction to allow the application under O.VII, R.11,. C.P.C. without holding proper inquiry.

(e) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14, 30, 32, 33. & 41‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Setting aside of award‑‑‑Plaint, rejection of‑‑‑Absence of cause of action‑‑‑Suit property was owned by the predecessor‑in‑interest of the parties‑‑‑During the lifetime of the predecessor‑in‑interest of the parties, the defendants initiated arbitration proceedings and award was made in their favour which was later on made rule of the Court‑‑‑Plaintiffs filed administration suit regarding the suit property and also filed application under S.12(2), C.P.C. against the award on the ground that predecessor-­in‑interest of the parties did not appoint any counsel nor signed any pleadings to initiate the application under S.14 of Arbitration Act, 1940, furthermore signatures of the predecessor‑in‑interest of the parties was also missing on the arbitration application‑‑‑Defendants moved application under O.VII, R.11, C.P.C. for rejection of the plaint mainly on the ground that the suit property was not part of the estate left by the deceased predecessor‑in‑interest of the parties and the plaintiffs had no cause of action‑‑‑Trial Court dismissed the application under O.VII, R.11, C.P.C. but the Appellate Court allowed revision petition and the plaint was rejected, resultantly the application under S.12(2), C.P.C. stood dismissed‑‑‑Validity‑‑‑In order to find out, if the application disclosed ' the cause of action, the contents of the application under S.12(2), C.P.C. read with S.33 of Arbitration Act, 1940, were to be looked into‑‑‑From the facts stated in the application, which if not controverted by the defendants, the plaintiffs would be entitled to the relief prayed for, the application could not be rejected for the lack of cause of action‑‑‑When the matter fell within the realm of factual controversy between the parties, though it was not always necessary for the Court td frame the issues and record evidence but in the present case, such controversy could only be decided, if the procedure was followed‑‑­Appellate. Court on assumption of certain facts had wrongly held the application incompetent and the plaintiffs lacking locus standi mainly on the reasoning that the predecessor‑in‑interest of the parties had never challenged the award during his lifetime and the plaintiffs being his successors were precluded to do so‑‑‑Appellate Court had lost sight of the fact that it was not yet proved on the record if the predecessor‑in­-interest of the parties in fact was the person who has moved application under S.14 of Arbitration Act, 1940, he was aware of the proceedings and the order making the award rule of the Court and had acknowledged the defendants as the owners of the property on account of award and the decree‑‑‑If the facts as alleged by the plaintiffs were proved, not only that their application would be competent, they would have locus standi and their case would not be hit by rule of past and closed transaction‑‑‑Order passed by the Appellate Court, was a result of erroneous exercise of jurisdiction and the same was set aside‑‑‑Case was remanded to the Trial Court for deciding application under S.12(2), C.P.C. afresh, after framing of issues and recording of necessary evidence.

(f) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14, 30, 32, 33 & 41‑‑‑Limitation Act (IX of 1908), SA ‑‑‑ Civil Procedure Code (V of 1908), S.12(2),‑‑‑Award, setting aside of‑‑­Application under S.12(2), C.P.C.‑‑‑Limitation‑‑‑Plea of fraud‑‑‑Award was assailed in application under S.12(2), C.P.C. on the ground that the predecessor‑in‑interest of the parties did not enter into arbitration agreement, valid award was not given by the Arbitrator, no application under S.14 of Arbitration Act, 1940, was filed by the predecessor‑in-­interest of the parties and he was also not aware of the decree passed in arbitration proceedings and the same was a result of fraud and misrepresentation‑‑‑Effect‑‑‑If the grounds were proved, the application under S.12(2), C.P.C. would be out of limitation but if it was otherwise, the provisions of S.18 of Limitation Act, 1908, would come to the rescue of the petitioners and their limitation would commence from the date of attaining the knowledge of fraud and not from the date when the order was passed‑‑‑Question of limitation was not a matter simpliciter of law, rather it was the question which was based upon factual determination‑‑­Application under S.12(2), C.P.C. was not barred by limitation in circumstances.

Dr. A. Basit, Saqib Saleem and Jahangir A. Jhoja for Petitioners.

Maqbool Elahi Malik and Mirza Hafeez‑ur‑Rehman for Respondents.

Date of hearing: 14th November, 2002.

2003 C L C 471

[Lahore]

Before Karamat Nazir Bhandari, J

ABDUL RASHID ‑‑‑Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) through Chairman, and 2 others‑‑‑Respondents

Writ Petition No.24937 of 1997, decided on 28th August, 2002.

(a) Procedure for WAPDA Bonds 6th Issue Bearer/Registered Regulations, 1994‑‑‑

‑‑‑‑Cl. 8‑‑‑Pakistan Water and Power Development Authority Act (XXXI of 1958), S.29‑‑‑Contract Act (IX of 1872), S.23‑‑‑Constitution of Pakistan (1973), Arts.23, 24(1) & 199‑‑‑Constitutional petition‑‑‑Loss of Bonds and issue of duplicates‑‑‑Petitioner lost Bonds alongwith profit coupons‑‑‑Clause 8 of Regulations prohibited issue of duplicates in event of loss, theft, confiscation of bearer Bonds‑‑‑Petitioner's request for issuing duplicate bonds was declined by WAPDA on the ground that such Bonds were bearer thus, their duplicates could not be issued‑‑­Validity‑‑‑Clause 8 of the Regulations was ‑one of the conditions under which WAPDA had proceeded to sell bonds to public‑‑‑Such clause was one of the conditions of transaction between parties and was in the realm of contract‑‑‑If such clause/condition was allowed to prevail, petitioner would be deprived of his money for all time to come, unless by a stroke of luck, he was able to retrieve the lost Bonds‑‑‑Such condition was expropriatory in nature and as such Court would not lean in favour of its validity‑‑‑Such clause saved the issuer from fare claim‑‑‑Nobody had claimed profit against Bonds lost by petitioner, but his genuine claim was being denied on the basis of C1.8 on alleged risk of a false claim being put up‑‑Clause 8 was inequitable as the same gave undue advantage to issuer of Bonds over purchaser thereof‑‑‑Issuer could not refuse to pay money to purchaser of Bonds, when Bonds were lost/destroyed permanently through fire, flood, earthquake, war and other calamities over which purchaser had no control, but. which were inherent risks of human living‑‑‑Record had. not established that petitioner had ever learnt of or was made aware of ‑conditions of transaction particularly C1.8‑‑‑Regulations were not statutory in nature, thus, C1.8 thereof had no statutory force‑‑‑Article 23 of the Constitution would not be attracted‑‑‑Such condition was, violative of protection provided under Art.24(1) of the Constitution‑‑Bonds were a property and petitioner could be deprived of such property only in accordance with law‑‑‑Clause 8 did not amount to law, rather same was a condition of sale, which being onerous, highly inequitable and opposed to public policy, could not be given effect to by Court‑‑‑High Court accepted Constitutional petition and directed the respondents to issue duplicates or fresh Bonds in lieu of lost Bonds within specified time.

The Pakistan General Insurance Company Ltd. v. Fazal Ahmad PLD 1960 (W.P.) Lah. 135 and Hakim Ali v. Muhammad Salim and another 1992 SCMR 46 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Criminal cannot and must not be allowed to reap fruit of his crime as he deserves to be punished rather than rewarded.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 2(h) & 23‑‑‑Contract containing an unusual and onerous condition‑‑‑Effect‑‑‑Court would not permit one of the contracting parties to take ‑advantage of an unusual and onerous condition and thus deprive the other party from its legitimate right/property.

The Pakistan General Insurance Company Ltd. v. Fazal Ahmad PLD 1960 (W.P.) Lah. 135 and Hakim Ali v. Muhammad Salim and another 1992 SCMR 46 ref.

Mirza Mehmood Baig and Malik A.R. Arshad for Petitioner.

Khawaja Muhammad Saeed and Muhammad Ilyas Khan for Respondents Nos. 1 and 2.

Nemo for Respondent No.3.

Dates of hearing: 31st July; 9th and 16th August, 2002.

2003 C L C 478

[Lahore]

Before Mian Saqib Nisar and Mian Hamid Farooq, JJ

MUHAMMAD HUSSAIN ‑‑‑Appellant

Versus

KHUSHI MUHAMMAD through L.Rs. and 5 others‑‑‑Respondents

Regular First Appeal No.270 of 1994, decided on 13th June, 2002.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑----

‑‑‑‑Art. 31‑‑‑Civil Procedure Code (V of 1908), O.VI, Rr.1 & 2‑‑­Admission made in plaint‑‑‑Could not be ignored or lost sight of by Court.

(b) Pleadings‑‑‑

‑‑‑‑ No person could be allowed to lead evidence beyond the scope of his pleadings‑‑‑If such evidence was produced, same would be ignored by Court.

Jarri Ullah Khan for Appellant.

Syed Riazul Hassan Gillani with Idrees Ahmad Sheikh for Respondent.

Date of hearing 29th April, 2002.

2003 C L C 485

[Lahore]

Before Mian Nazir Akhtar, J

Ch. MUHAMMAD BOOTA‑‑‑Petitioner

Versus

Mst. BANO BEGUM‑‑‑Respondent

Civil Revision No. 1912‑D of 1998, decided on 7th August, 2002.

(a) Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑‑Gift‑‑‑Contest between brother and sister‑‑‑Brother claiming entire property to the exclusion of his sister on the basis of gift made by his mother‑‑‑Proof‑‑‑Mother ordinarily is much more concerned about welfare of her daughter and is not expected to deprive her daughter of her share in inheritance without exceptionally strong reasons‑‑­Exceptionally strong reason must exist to satisfy judicial conscience that daughter had rightly been disinherited by mother.

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

‑‑‑‑Ss. 39 & 42‑‑‑Limitation Act (IX of 1908), Art.144‑‑‑Suit for declaration and cancellation of gift deed made by donor (mother) in favour of defendant (her son) excluding plaintiff (her daughter)‑‑‑Suit was dismissed by Trial Court, but decreed by the Appellate Court‑‑­Validity‑‑‑Donor was an old, ailing and illiterate lady, who died after few months of alleged gift‑‑‑Not proved on record that contents of gift deed were read out to donor and she after hearing and understanding its contents had admitted correctness thereof‑‑‑Original gift deed placed on record during pendency of revision petition before High Court contained thumb‑impressions of donor at four places and each thumb‑impression appeared to be different to naked eye‑‑‑Perhaps for such reason only attested photo copy of gift deed had been exhibited in evidence in which thumb‑impressions were not clear for purpose of comparison‑‑‑Such exhibit was a suspect document and Appellate Court had rightly not relied upon the same and had rightly reversed findings of Trial Court‑‑­Donor (mother) had no knowledge about real nature of document got prepared by defendant, rather she was duped and her thumb‑impression had been obtained through misrepresentation‑‑‑Donor had never consciously made the gift of property in. favour of defendant‑‑­Mere signatures or thumb‑impressions on a deed were not sufficient to prove execution thereof in each and every case without regard to its peculiar facts and circumstances‑‑‑Plaintiff had bona fidely believed that she was a co‑sharer in inheritance left by her mother and waited for about eleven years in the hope that she would be given her share, but on being disappointed, she ultimately filed suit against the defendant.

Shamir through Legal Heirs v. Faiz Elahi through Legal Heirs 1993 SCMR 145; Muhammad Nawaz v. Mst. Ahmad Bibi and others 1995 SCMR 466; Mst. Badshah Begum v. Ghulam Rasul and 4 others PLD 1991 SC 1140; Raja Muhammad Yasin v. Zaitoon Begum and others 1993 CLC 2448; Mst. Hawa v. Muhammad Yousaf and others PLD 1.969 Kar. 324; Mst. Hamidan Begum v. Mst. Murad Begum and others OLD 1975 SC 624; Zafar Iqbal and others v. Yaqoob and 5 others 1995 CLC 7 and Mst. Ghulam Sarwar Naqvi's case PLD 1990 SC 1 ref.

(c) Civil Procedure Code (V of 1908)‑‑---‑‑Ss. 96, 100 & 115‑‑‑Findings of fact recorded by First Appellate Court at variance with that of Trial Court‑‑‑Effect‑‑‑Findings of First Appellate Court ordinarily would prevail, unless same were not supported by evidence on record or Appellate Court had failed to consider material evidence on record.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; U. Rai Gyaw Thoo & Co. Ltd. v. Ma Hala U Pru AIR 1940 Rang. 126; Administrator, Corporation of City of Lahore v. Sampuran Singh Chawla and another AIR 1947 Lah. 172; Mst. Choori v. Ghulam Hussain 1978 SCMR 404 and Hafiz Muhammad Hussain and another‑ v. Abbas Khan. and another 1981 SCMR 1233 , ref.

(d) Islamic Law‑‑‑

‑‑‑‑ Gift‑‑‑ Burden of proof‑‑‑Gift by mother in favour of her son while leaving out her daughter‑‑‑Proof‑‑‑Donor (mother) through such document was not only depriving herself from ownership in property, but also her real daughter with whom she had cordial relations‑‑‑Burden would heavily lie on the beneficiary of document i.e. brother to prove gift in his favour by clear and reliable evidence.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Findings of fact‑‑‑Appellate Court had properly appreciated evidence on record and had given sound .reasons for recording findings of fact on crucial issue involved in the case‑‑‑Such findings would not call for any interference in exercise of revisional jurisdiction under S.115, C.P.C.

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

‑‑‑‑Ss. 8, 39 & 42‑‑‑Limitation Act (IX of 1908), Art.144‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17‑‑‑Suit for possession‑‑­Amendment of plaint‑‑‑Prayer for declaration and cancellation of gift deed, addition of‑‑‑Effect‑‑‑Suit for possession was within time under provisions of Art.144 of Limitation Act, 1908‑‑‑Plaintiff after having learnt about gift deed, got plaint amended by adding therein prayer to the effect that gift deed be declared to be void and be cancelled ‑‑‑Validity‑‑­Plaintiff's suit in substance was for possession‑‑‑Prayer for declaration had been made by way of super arrogation which had not made suit time ­barred merely because of making prayer for a declaration in respect of gift.

(g) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 78 & 79‑‑‑Document, execution of‑‑‑Proof‑‑‑Mere signatures or thumb‑impressions on a deed would not be sufficient to prove execution thereof in each and every case without regard to its peculiar facts and circumstances.

(h) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Validity of gift, onus to prove‑‑‑Not for plaintiff to prove alleged misrepresentation/fraud‑ ‑‑Defendant was bound to prove validity of gift, as he was its beneficiary.

R.S. Masood Gangohi for Petitioner.

Zafar Ali Raja for Respondent.

Date of hearing: 26th June, 2002.

2003 C L C 496

[Lahore]

Before Main Saqib Nisar and Mian Hamid Farooq, JJ

HAMID ALI KHAN‑‑‑Appellant

Versus

KHALID MUMTAZ ‑‑‑Respondent

Regular First Appeals Nos.197 of 1998 and 268 of 1999, decided on 13th June, 2002.

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

---S. 12‑‑‑Contract Act (IX of 1872), Ss. 55 & 62‑‑‑Limitation Act (IX of 1908), Art. 1 13‑‑‑Suit for specific performance of agreement to sell‑‑­Novation of contract‑‑‑Defendant received earnest money on 4‑4‑1981, when agreement to sell was executed, whereas balance consideration was payable till 12‑10‑1981‑‑‑Defendant attempted to take forcible possession of suit house in September, 1981, over which plaintiff's wife initiated criminal proceedings‑‑‑Defendant was sentenced in such proceedings and he filed criminal appeal in the High Court‑‑‑Defendant was acquitted by the High Court in pursuance of compromise/agreement made between parties on 23‑4‑1989 to the effect that defendant would execute‑ sale‑deed in favour of plaintiff till 28‑4‑1989‑‑‑Plaintiff purchased stamp paper before 28‑4‑1989 for execution of sale‑deed, but defendant commenced performing his "Ehtikaf" on 28‑4‑1989‑‑‑Defendant thereafter refused to execute sale‑deed, over which plaintiff filed contempt application. against him and then the present suit‑‑‑Trial Court decreed the suit ‑‑‑Validity‑‑­Defendant had neither asserted nor established to have contacted plaintiff from 23‑4‑1989 till Maghrab of 28‑4‑1989‑‑‑Time could not be construed to be essence of agreement/compromise dated 23‑4‑1989,‑‑Defendant himself was in Ehtikaf for ten days and then there were Eid Holidays‑‑­Fact of filing contempt application against defendant coupled with purchase of stamp paper would show that plaintiff was ready and willing to perform his part of agreement‑‑‑If defendant had intention to perform agreement by receiving balance consideration, then nothing much had developed in between 28‑4‑1989 and filing of contempt proceedings, when time was not the essence .of contract‑‑‑Defendant could easily finalize the transaction by accepting balance payment at the time of initiation of contempt proceedings, but he had tried to wriggle out of the contract by contesting the matter‑‑‑Agreement dated 23‑4‑1989 was a compromise between the parties entered in the backdrop of earlier agreement for resolving their outstanding dispute‑‑‑Agreement dated 23‑4‑1989 was a total substitution of earlier agreement with new terms and conditions and parties were not obliged to perform stipulations of agreement dated 4‑4‑1981‑‑‑Such fact had constituted a valid novation‑‑­Defendant could not prove failure of plaintiff to perform second agreement in letter and spirit‑‑‑Suit filed within three years from 23‑4‑1989 was not time‑barred‑‑‑No illegality or factual infirmity was found in impugned judgment and decree‑‑‑High Court dismissed appeal in circumstances.

PLD 1961 Kar. 599; PLD 1969 Journal 17 and PLD 1974 Note 53 at p.92 ref.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 55‑‑‑Time ordinarily not the essence of contract for sale of immovable property.

Dr. Hameed Ahmad Ayaz and Mian Hameed‑ud‑Din Kasuri for Appellant.

Khalid Iqbal Mian for Respondent.

Date of hearing: 13th May; 2002.

2003 C L C 504

[Lahore]

Before Abdul Shakoor Paracha, J

PROVINCE OF THE PUNJAB through Secretary, Irrigation and Power Department, P.W.D., Secretariat Old Anarkali, Lahore and 3 others‑‑‑Petitioners

Versus

Ch. MEHRAJ DIN & CO. through Proprietor‑‑‑Respondent

Civil Revision No.515 of 1999, decided on 28th August, 2002.

(a) Practice and procedure‑‑‑

‑‑‑‑ Plaintiff should stand upon his own legs and should not take benefit of weaknesses of defence evidence.

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

‑‑‑‑O. XIII, R.4‑‑‑Endorsement on document without proving same‑‑­Validity‑‑‑No provision existed in law to mark document‑‑­Provisions of O.XIII, R.4, C.P.C. were mandatory‑‑‑Mere marking of a document as an exhibit would not dispense with requirement of proving same‑‑‑Document should not be exhibited unless same was proved.

Feroz Din and others v. Nawab Khan and others AIR 1928 Lah. 432 and Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182 rel.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 76‑‑‑Photo copy of receipt‑‑‑Evidentiary value‑‑‑Admitting photo copy of receipt in evidence and reading the same in evidence without observing legal requirement of Art.76 of Qanun‑e‑Shahadat would be illegal.

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

‑‑‑‑O. XIII, R.4‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.76‑‑‑Documents not copies of judicial record‑‑‑Witness examined in Court was neither author of such documents nor he was witness thereof nor such documents in original were produced in Court for its inspection‑‑‑Such documents, if exhibited in evidence without formal proof, could not be relied upon.

Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160 rel.

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

‑‑‑‑O. XVIII, R.3‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.133‑‑‑Giving evidence in rebuttal, where several issues were framed‑‑‑Principles.

Under Order XVIII, rule 3, C.P.C. evidence in rebuttal can only be given on the issues, burden of proving which is on defendant. Such procedure will be followed in a case, where there are several issues and burden of proving some of them lies on the party other than the party beginning. The plaintiff has two alternatives. In the first place, it may lead its entire evidence on all the issues, whereafter the other party will produce its entire evidence. In the alternative, the party may, in the first instance, produce evidence only on such issues, the burden of proving which lies on other party and to disprove such issues by leading evidence in rebuttal after the other party had produced its evidence on all the issues.

Barrister Ch. Muhammad Abdus Saleem and 4 others v. Mst. Tanveer Mirza and 3 others 1996 SCMR 351 and Allah Yar and others v. Ghulam Jeelani and others 1996 SCMR 662 rel.

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

‑‑‑‑O. XLI, R.31‑‑‑Judgment of Appellate Court‑‑‑Essentials‑‑‑Such judgment should state points for determination, its decision thereon and reasons for its decision.

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

‑‑‑‑O. XLI, R.31 & S.115‑‑‑Judgment of Appellate Court passed in violation of provisions of O. XLI, R.31, C.P.C.‑‑‑Validity‑‑‑Appellate Court disposed of appeal without passing a speaking order and discussing evidence produced by respondent‑‑‑Appellate Court did not give any reason for its decision as required by provisions of O.XLI, R.31, C.P.C.‑‑‑High Court accepted revision petition, set aside impugned judgment and remanded case to Appellate Court for its decision afresh within specified time.

Askar Ali and others v. The State PLD 1959 SC (Pak.) 251 and Muhammad Tufail v. Mst. Sardar Bibi and 2 others 1998 CLC 1969 rel.

Ms. Roshan Ara Begum, A.A.‑G. for Petitioner.

Nemo for Respondent.

Date of hearing: 28th August, 2002.

2003 C L C 513

[Lahore]

Before Ch. Ijaz Ahmad and Sayed Zahid Hussain, JJ

SEVEN‑UP BOTTLING COMPANY (PVT.) LTD, ‑‑‑Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY (L.D.A.), LAHORE through Managing Director, WASA and its Deputy Director Revenue (South), WASA, LDA and another‑‑‑Respondents

Writ Petitions Nos.5683, 5680, 5783, 5707, 4524, 5655, 4525, 5646, 5831, 6007 of 1988; 5262, 1734, 311, 314, 315, 4305, 1743, 7149, 359, 382, 4922, 312, 313 of 1989; 9245, 4091, 11091, 2164, 8987, of 1991; 2.159 of 1992; 4088 of 1993; 4566, 6121 of 1994; 11607, 11609, 17753, 11612 of 1995;11613, 11608, 11610, 11611 of 1996; 4595, 9564, of 1998; 14790, 14960, 14647, 13457, 14959, of 1999; 13548, 21816, 1913, 1597, 4588, 10738, 1533, 8782, 1912, 4162, 8424 of 2000 and 20024 of 2001, decided on 12th September, 2002.

(a) Words and phrases‑‑‑

------“Charge” ----Meaning.

Webster's Unabridged Dictionary of English Language; Black's Law Dictionary, 5th Edn.; The Oxford Dictionary, Fourth Edn. and Mian Ejaz Shafi and others v. Federation of Pakistan and others, PLD 1997 Kar. 604 ref.

(b) Words and phrases‑‑‑

‑‑‑‑"Rate"‑‑‑Meaning.

Webster's Unabridged Dictionary of English Language; Black's Law Dictionary, 5th Edn.; The Oxford Dictionary, Fourth Edn. and Mondi's Refreshment Room and Bar, Karachi v. Islamic Republic of Pakistan and another PLD 1983 Kar. 214 ref.

(c) Words and phrases‑‑‑

‑‑‑‑"Fee"‑‑‑Meaning.

Webster's Unabridged Dictionary of English Language; Black's Law Dictionary, 5th Edn.; The Oxford Dictionary, Fourth Edn.; Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West Pakistan and 2 others PLD 1968 SC 171 ref.

(d) Words and phrases‑‑‑

‑‑‑‑"Tax"‑‑‑Meaning.

Webster's Unabridged Dictionary of English Language; Black's Law Dictionary, 5th Edn.; The Oxford Dictionary Fourth Edn. and Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West Pakistan, Lahore and 2 others PLD 1968 SC 171 ref.

(e) Words and phrases‑‑‑

‑‑‑‑"Aquifer"‑‑‑Meaning.

(f) Words and phrases‑‑‑

‑‑‑‑"Public water supply"‑‑‑Meaning.

Words and Phrases Permanent Edn., Vols. 35‑A and 44‑A ref.

(g) Words and phrases‑‑‑

‑‑‑‑"Land"‑‑‑Meaning.

American Jurisprudence, Second Edn., Vols.63A and Words and Phrases, Permanent Edn., Vol.24 ref.

(h) Words and phrases‑‑‑-

‑‑‑‑"Water and water rights"‑‑‑Meaning:

Words and Phrases, Permanent Edn., Vol.34A ref.

(i) Maxim‑‑‑

‑‑‑‑"A coelo usque and centrum" (from the heavens to the centre of the earth).

Trayner's Latin Meoims ref.

(j) Interpretation of statutes‑‑‑

‑‑‑‑Court cannot supply casus omissus, in other words, Court is not competent to fill up omission on part of Legislature.

Imam Bakhsh v. Government of Balochistan PLD 1993 Quetta 24; Muhammad Ayyub. v. Abdul Khaliq 1990 MLD 1293; Messrs Chitagong Jute Co. v. Province of East Pakistan and others PLD 1966 Dacca 117; Rehmat Ullah Khan and others v. The State PLD 1965 Pesh. 162 and Excise and Taxation Officer v. Barmashell Storage Co. and others 1993 SCMR 338 rel.

(k) Interpretation of statutes‑---

‑‑‑‑ Special provision in a statute excludes application of general provision.

Ch. Pervaiz Elahi v. The Province of Punjab and others PLD 1993 Lah. 595 and Zia‑ur‑Rehman's case .PLD 1973 SC 49 rel.

(l) Interpretation of statutes‑‑‑

‑‑‑‑ Taxing statute‑‑‑Conflict between charging section and another section‑‑‑Charging section would hold the field.

Barmashell Storage Company's case 1993 SCMR 338 fol.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ If language of enacting part 'of statute does not contain the provisions, which should occur in it, then Court cannot derive. those provisions by implication in statute.

Governor‑General of Council v. Municipal Corporation, Madras PLD 1948 PC 211 fol.

(n) Interpretation of statutes‑‑‑

‑‑‑‑Court has no power to fill any gaps disclosed in an enactment.

Khizar Hayat and others v. Commissioner, Sargodha PLD 1965 Lah. 349 rel.

(o) Interpretation of statutes‑‑‑

‑‑‑‑ Fiscal statute‑‑‑Ambiguity should be resolved in favour of subject‑‑‑If there is doubt about meaning of any provision in such a statute, Courts are to lean against a construction, which imposes a burden on the subject.

Muhammad Aslam's case PLD 1993 Kar. 280; Ghulam Mustafa Jatoi's case 1994 SCMR 1299; Mirpur Khas Sugar Mills case 1993 SCMR 920; Mst. Amina and others' case PLD 1993 Kar. 5; In re: Successsion Certificate of Mst. Parveen Akhtar's case PLD 1993 Kar. 280 and Muhammad Afzal's case 1994 CLC 1465 ref.

(p) Interpretation of statutes‑‑‑-

‑‑‑‑ Not within domain of Court to depart from plain meaning of the expressions used in the statutes.

Rehmat Khan's case 1993 CLC 412 and Imam Bakhsh's case PLD 1993 Quetta 24 ref.

(q) Interpretation of statutes‑‑‑

‑‑‑‑ While examining vires of provisions of statute, Court should make effort to uphold them as valid.

Karachi Buildings Control Authorities' case PLD 1993 SC 210 ref.

(r) Interpretation of statutes‑‑‑

‑‑‑‑ Pith and substance of the enactment should be considered to find out its true nature and character.

Syed Ghulam Ali Shah v. The State. through A.D.M. and Tribunal, Sanghar PLD 1970 SC 253; Pir Rashid ud Daula and 3 others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 401; Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506; Central Provinces v. Babar Sales of Motor Spirit AIR 1939 FC 1; The Progress of Pakistan Co. Ltd. v. Registrar, Joint Stock Companies, Karachi and another PLD 1958 Lah. 887; The Pracha Textile Mills Ltd. v. Pakistan and others PLD 1963 Kar. 319; Haji Multan Zareen and 56 others v. Government of N.‑W.F.P. and another PLD 1980 Pesh. 137; Nishat Mills Ltd., Nishatabad, Faisalabad v. The Federation of Pakistan through Secretary, Ministry of Food and Agriculture and 4 others PLD 1994 Lah. 175; United Province's case AIR 1941 FC 16 and Shamim‑ur­-Rehman's case PLD 1983 SC 457 rel.

(s) Interpretation of statutes‑‑‑

‑‑‑‑ Intention of Legislature is primarily, gathered from language used by Legislature in the contents of statute.

Iqbal Muhammad Khan's case 1992 PLC 549 rel.

(t) Interpretation of statutes—­

‑‑‑‑ Best rule of interpretation is plain reading of the provisions of statute.

Trustees of the Port of Karachi v. Gujranwala Steel Industries and another 1990 CLC 197 rel.

(u) Interpretation of statutes‑‑

‑‑‑‑ Fiscal statute‑‑‑Provisions of a statute must be read as a whole‑‑‑No tax or fee to be levied twice on same goods as per golden rule of interpretation of fiscal statute.

Fauji Sugar Mills' case 1996 CLC 592 rel.

(v) Interpretation of statutes‑‑‑

‑‑‑‑ Law cannot be interpreted in different way simply on ground of hardship‑‑‑Intention of statute must be gathered from plain and unambiguous expression used therein rather than from any notion.

Muhammad Ayyub v. Abdul Khaliq 1990 MLD 1293 ref.

(w) Interpretation of statutes‑‑‑

‑‑‑‑Preamble‑‑‑Function‑‑‑Conflict between preamble and enacting part of statute‑‑ Preamble of statute is the key to understand the statute‑‑‑If enacting part of statute goes beyond preamble, then it is the enacting part, which prevails and not preamble‑‑‑Enacting part is not controlled by its preamble‑‑‑Statement in preamble is not a binding authority‑‑‑If enactment is clear or unambiguous, preamble cannot qualify or cut down enactment, in other words, preamble does not overrule plain provisions of statute.

Sh. Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504;, Bashir Ahmad v. Mst. Zubaida Khatoon 1983 CLC 390; Mating Pyu's case AIR 1940 Rang. 84; Powel v. Kampton Park Race Course 1899 AC 143 and Divisional Superintendent, Pakistan Railways v. Sindh Labour Court 1988 PLC 648 fol.

(x) Interpretation of statutes‑‑‑--

‑‑‑‑ Taxing statute‑‑‑Charging provision relating to levy of charge of fee is a penal statute‑‑‑Words in a statute must first be given their ordinary and natural meaning as per general rule.

Government of Pakistan v. Messrs Hashwani Hotel PLD 1990 SC 68 rel.

(y) Interpretation of statutes‑‑‑

‑‑‑‑Court has no power to refuse to give effect to language of enactment only because that some financial loss may in certain circumstances be caused to the State.

(z) Interpretation of statutes-----‑

‑‑‑‑ Fiscal statute‑‑‑One must look to words of statute and interpret them in the light of what is clearly expressed‑‑‑Nothing can be implied, which is not expressed.

PLD 1986 Kar. 211 rel.

(aa) Interpretation of statutes‑‑‑

‑‑‑‑ Taxing statute‑‑‑Modern attitude of Courts‑‑‑Revenue from taxes/ fees is essential for running the State‑‑‑Heavy duty is cast upon Court to aid its collection while remaining fair to the subject.

I.R.C. v. Berrill (1981) 1 WLR 1449 rel.

(bb) Interpretation of statutes‑‑‑-

‑‑‑‑ Intention of Legislature, ascertaining‑‑‑Prior legislation may in case of ambiguity materially assist in ascertaining intention of Legislature.

State Bhar v. S.K. Roy AIR 1966 SC 1995 rel.

(cc) Interpretation of statutes‑‑

‑‑‑‑ Ejusdem generis, doctrine of‑‑‑Meaning and, application, Word "ejusdum generis" means of same kind or nature.

Ejusdem generis doctrine means that where general words immediately follow or are closely associated with specific words, their meaning must be limited by reference to preceding word.

Municipal Corporation's case AIR 1942 Rang. 70 and PLD 1989 SC 128 rel.

(dd) Words and phrases‑‑‑-

‑‑‑"Sewer"‑‑‑Connotation‑‑‑Sewer is a local improvement within the laws authorizing Authorities for local improvements.

Ryder's Estate v. City of Alton 51 NE 821, 823, 175 III‑94 rel.

(ee) Words and phrases‑‑‑

‑‑‑‑"Water works system"‑‑‑Connotation.

Hughes v. City of Momence 45 NE 302, 164 III 16 ref.

(ff) Public utility‑‑‑

‑‑‑‑ Rates fixed for public utilities‑‑‑Reasonableness of‑‑‑Criteria for determination stated.

A public utility is entitled to reasonable compensation in return for service furnished, and that it may exact reasonable charges in accordance with services provided or the rates established therefor.

A public utility may, in absence of a legislative prescription or limitation of rates, fix and exact reasonable rates for service furnished, in which respect reasonableness of rate is to be considered in relation to value of property used by utility in public service. Thus, in absence of legislation, carriers are ordinarily entitled to establish such rates and adopt such policy of rate making as they may deem best. They may voluntarily render service for less than they could be compelled to accept.

(gg) Lahore Development Authority Act (XXX of 1975)‑‑‑

‑‑‑‑Ss. 28 & 29(2) [as amended by Lahore Development Authority (Amendment) Act (VI of 1976)]‑‑‑Notification No.DR/230, dated 25‑2‑1988, Cl.4‑‑‑Constitution of Pakistan‑ (1973), Art. 199‑‑­Constitutional‑ petition‑‑‑Aquifer charges, levy of‑‑‑Validity‑‑‑Power initially given to Authority to impose aquifer charges under S.29(2) of Lahore Development Authority Act, 1975 had been taken away through Lahore Development Authority (Amendment) Act, 1976, such being special provision excluded general provisions‑‑‑Term "other charges" mentioned in S.28(1) of Lahore Development Authority Act, 1975 must be read keeping in view the principle of ejusdem generis‑‑‑Authority could not impose aquifer charges in view of "other charges" mentioned in S.28(1)‑‑‑Law applicable did not support levy of aquifer charges‑‑‑High Court accepte9 Constitutional petition in circumstances.

(hh) Lahore Water and Sewerage Authority Act (XXIX of 1975)‑‑‑-

‑‑‑‑Ss. 21 & 22‑‑‑Lahore Development Authority Act (XXX of 1975), S.28‑‑‑Notification No.DR/230, dated 25‑2‑1988, Cl.2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Levy of sewerage charges on private tubewells‑‑‑Validity‑‑Authority had lawful authority to impose sewerage charges as they had floated sewerage system in whole of notified area‑‑‑Petitioners were taking benefit and making use of sewerage scheme provided by the Authority‑‑‑No service could be provided without fee and charges, otherwise the State or its agencies would crumble down‑‑‑Authority was providing facilities to people of notified area with regard to sewerage i.e. pipelines, drainage system etc., even to people, who had installed their own private tubewells and their waste water fell in sewerage and pipelines of the Authority‑‑‑Authority was well within its right to impose sewerage charges.

Mian Ejaz Shafi and others v. Federation of Pakistan and others PLD 1997 Kar. 604; Ayaz Textile Mills Ltd. v. Federation of Pakistan through Secretary, Commerce and another PLD 1993 Lah. 194; Sindh Glass Industries Limited v. Chief Controller of Import and Export, Islamabad and 2 others 1990 CLC 638; Rahim Ullah Khan and 65 others v. Government of N..‑W.F.P. through Secretary, Agricultural Forest and Cooperation Department, Peshawar and 5 others 1990 CLC 550; Trustees of the Port of Karachi v. Gujranwala Steel 'Industries and another 1990 CLC 197; Mehboob Yar Khan and another v. Municipal Committee, Mian Channu and 2 others PLD 1975 Lah. 748; Abdul Majid and another v. Province of East Pakistan and others PLD 1960 Dacca 502; Mondi's Refreshment Room and Bar; Karachi v. Islamic Republic of Pakistan and another PLD 1983 Kar. 214; Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West Pakistan, Lahore and 2 others PLD 1968 SC 17,1; Sheikh Muhammad Ismail & Co. Ltd., Lahore v. The Chief Cotton Inspector, Multan Division, Multan and others PLD 1966 SC 388; Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; Malik Muhammad Saleem and another v. Commissioner, Rawalpindi Division, Rawalpindi and 3 others PLD 1976 Lah. 1233; Lt.‑Col. Muhammad Amin Khan v. Government of West Pakistan and others PLD 1966 Lah. 111; M. Afzal & Son and others v. Federal Government of Pakistan and another PLD 1977 Lah. 1327; Messrs Dean Textile Mills Limited, Karachi v. Pakistan through Ministry of Finance and 3 others 1984 CLC 1740; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582; Government of Pakistan and others v. Muhammad Ashraf and others PLD 1993 SC 176; Messrs Sh. Abdur Rahim, Allah Ditta v. Federation of Pakistan and others PLD 1988 SC 670, Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others PLD 1983 SC 358; The Province of East Pakistan v. Sirajul Haq, Patwari PLD 1966 SC 854; Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119; Province of Punjab through Secretary, Irrigation and Power Development,: Lahore v. Deputy Settlement Commissioner, Lahore and others 1991 SCMR 1592; Ardeshir Cowasjee, Karachi and 4 others v. Messrs Multiline Associates, Karachi and 2 others PLD 1993 Kar. 237; Biafco Industries v. Federation of Pakistan 2000 CLC 170; Messrs Nishat Mills v. Federation of Pakistan 1997 MLD 3194; Shahtaj Sugar Mills v. Province of Punjab 1998 CLC 1912; Nishat Tek Limited v. Federation of Pakistan PLD 1994 Lah. 347; Saif Textile Mills v. Pakistan through Secretary PLD 1998 Pesh. 15; Muhammad Ismail v. Chief Cotton Inspector PLD 1966 SC 388; Sohail Jute Mills v. Federation of Pakistan PLD 1991 SC 329; Pakistan Industrial Development Cprporation v. Pakistan through Secretary 1992 SCMR 891; Province of Punjab v. NICCC 2000 SCMR 567; Assistant Collector Customs v: Gadoon Textile Mills 1994 SCMR 712; Gadoon Textile Mills v. Assistant Collector and others PLD 1992 Pesh. 191; Br[g. (Retd.) F.B. Ali v. The State PLD 1975 SC 506; Muhammad Nufullah v. Municipal Corporation, Karachi PLD 1960 SC 24; Muhammad Ismail v. The State PLD 1969 SC 241; Dehli Transport Corporation, v. D.T.C. Mazdoor Congress AIR 1991 SC 101; K. Anjaiah and others v. K. Chandraiah and others (1998) 3 SCC 218; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; C.B.R. v. Sheikh Spinning Mills 1999 SCMR 1442; Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1042 and Niaz Ahmed Khan v. Province of Sindh and others PLD 1977 Kar. 604 ref.

Zahid Hamid, Mian Nisar Ahmad, Syed Mansoor Ali Shah, Raza Farooq, Faisal Zairian, Malik Bashir Ahmad, Muhammad Tufail, Ch. Mustafa Ahmad, Malik Amjad Pervez, Mian Maqsood Ahmad, Muhammad Sultan Dar, Haji Qulzar Hussain, Muhammad Islam, Sh. Mahmood Rashid and Javed Iqbal for Petitioners.

Sh. Zia Ullah, Mahboob Ahmad and Malik Azam Rasool for WASA.

Mian Muzaffar Hussain for L.D.A.

Maqbool Elahi Malik, A.‑G.

Dates of hearing: 25th, 26th, 27th June; 1st, 2nd, 3rd and 4th July, 2002.

2003 C L C 547

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

SYED MUHAMMAD and another‑‑‑Petitioners

Versus

Mst. AMEER KHATOON‑‑‑Respondent

Civil Revision No.979 of 2002, decided on 31st October, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XIII, R. 4‑‑‑Non‑signing of document; by the Trial Court which were exhibited during the evidence‑‑‑Appellate Court remanded case to Trial Court only on the ground that documents exhibited during evidence were not duly signed by Trial Court‑‑‑Validity‑‑‑Such was mere procedural irregularity which was curable and there was no justification to remand the case on that account alone‑‑‑None should suffer on account of act of Court‑‑‑Judgment of Appellate Court was not sustainable in eyes of law and same was liable to be set aside‑‑‑High Court directed that appeal be disposed of by the Appellate Court on merits and in accordance with law.

Pribhadinomal Methumal and others v. Mt. Chuti and others AIR 1933 Sind 379; Talehmand and others v. Mst. Aisha Bibi PLD 1994 Lah. 399; Hakim Khan v. Aurangzeb and another PLD 1975 Lah. 1170 and Muhammad Siddique and 2 others v. Faqir Muhammad and another 1993 CLC 1158 ref.

Hatiz Abdur Rehman Ansari for petitioners.

M. Zubair Saeed Awan for Respondent.

Date of hearing: 31st October, 2002.

2003 C L C 550

[Lahore]

Before Maulvi Anwarul Haq, J

Ch. KHURSHED AHMED, ADVOCATE‑‑‑Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary, Local Government and Rural

Development Department, Punjab, Lahore and 5 others‑‑‑Respondents

Writ Petitions Nos.19765 of 2000 and 4794 of 2001, heard on 2nd September, 2002.

(a) Punjab Local Councils (Audit) Rules, 1981‑‑‑-

‑‑‑‑R. 27‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Initiation of pre­ surcharge proceedings against lawyer of Zila Council‑‑‑Validity‑‑‑High Court keeping in view rule of consistency had disposed of Constitutional petition of Zila Council in presence of its lawyer (petitioner) on same terms on which an earlier Constitutional petition had been decided‑‑‑Such decision of High Court withstood scrutiny of Supreme Court on the touchstone of fairness of conditions laid down therein and stated to be agreed by petitioner (lawyer)‑‑‑Supreme Court found such agreement to be just and fair to both the parties and that its terms could‑ be acted upon‑‑‑No Court, much less an Audit Officer of Zila Council, had lawful authority to overrule such observation of Supreme Court, unless a case of fraud, misrepresentation or lack of jurisdiction was made out in properly constituted proceedings‑‑‑No application under S.12(2), C.P.C. had been filed either in High Court or Supreme Court to question the order on such grounds‑‑‑Nothing was on record to show as to how petitioner (lawyer) was responsible, when he had joined office of Zila Council long after such order had been implemented‑‑‑High Court accepted Constitutional petition and declared proceedings initiated against petitioner (lawyer) to be without lawful authority.

(b) Counsel and client‑‑‑-

‑‑‑‑ Compromise or agreement by counsel‑‑‑Validity‑‑‑Counsel has complete authority under terms of his power of attorney to act in the interest of his client and even to enter into a compromise or agreement for decision of a given case.

(c) Punjab Local Councils (Audit) Rules, 1981‑‑‑

‑‑‑‑R. 27(1)‑‑‑Pre‑surcharge certificate issued to lawyer of Local Council‑‑‑Validity‑‑‑Term "acting on behalf of the Local Council" as used in sub‑clause (iv) of R.27(1) of Punjab Local Councils (Audit) Rules, 1981 would be read ejusdem generis with earlier three terms as used in sub‑clauses (i) to (iii) of R.27(1)‑‑‑Person falling in such three categories, if acting on behalf of Local Council could be proceeded against under the Rules‑‑‑Lawyer acting on behalf of Local Council would fall within mischief of R.27 of the Rules.

K h. Muhammad Farooq for Petitioner.

Maqbool Ellahi Malik, A.‑G.

Barkat Ali Dogar for Respondent No.6.

Date of hearing; 2nd September, 2002.

2003 C L C 559

[Lahore]

Before Abdul Shakoor Paracha, J

AL‑Haaj MUHAMMAD RAFIQUE‑‑‑Petitioner

Versus

Mst. KHALIDA SHEHZADI‑‑‑Respondent

Civil Revision No. 1764 of 1997, heard on 30th July, 2002.

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

‑‑S. 115‑‑‑Revision petition admitted for regular hearing ‑‑‑Non a­ppearance of petitioner or his counsel despite that the name of his counsel appeared in the cause‑list‑‑‑Effect‑‑‑Such revision petition could of be dismissed for non‑prosecution.

Muhammad Siddique v. Mst. Bashiran and 9 others PLD 2000 SC 820 fol.

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

‑‑S. 115‑‑‑Revision‑‑‑Appreciation of evidence‑‑‑Scope‑‑‑Where two courts below had recorded divergent findings on disputed question of fact, then Revisional Court could appreciate evidence.

Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim 2001 SCMR 1493 fol.

(c) Benami transaction‑‑‑

‑‑‑Benami character of a transaction‑‑‑Determining factors‑‑‑Onus to prove‑‑‑Principles.

Whosoever asserts Benami nature of sale has to prove same.

AIR 1926 Nag. 109 rel.

Following factors /considerations are relevant for deciding Benami character of a transaction:

(i) Source of consideration and its payment.

(ii) Motive for Benami transaction.

(iii) Real intention of parties.

(iv) Possession and production of original title deed.

(v) Possession and use of property in dispute.

(vi) Subsequent conduct of parties including any act done in exercise of right of ownership.

Yeleswarapu Ganjamma's case AIR 1925 Mad. 9.80; Mst. Zohra Begum and 6 others v. Muhammad Ismaeel 1995 CLC 242; Muhammad Sajjad Hussain v. Muhammad Anwar Huss4in 1991 SCMR 703; Jane Margrate William v. Abdul Hamid Khan 1994 CLC 1437 and Muhammad Zaman v. Sheikh Abdul Hameed 2002 CLC 1209 rel.

(d) Benami transaction‑‑‑

‑‑‑‑ Benami character of a transaction‑‑‑Onus to prove‑‑‑Suit property was standing in the name of wife since 1974, whereas her marriage was dissolved in year 1987 through decree of Court‑‑‑Wife claiming to be real owner of suit property filed suit for possession against husband alleging that he had forcibly dispossessed her tenant‑‑‑Suit was dismissed by Trial Court, but decreed by Appellate Court‑Validity‑‑‑Husband had not produced witness, before whom he alleged to have paid sale price to the vendor‑‑‑Husband had neither proved s3urce of purchasing plot nor produced in evidence a single receipt or draft showing amount sent by him from abroad to wife‑‑‑No reason whatsoever had been asserted by husband for getting sale deed registered in the name of wife‑‑‑Had husband invested money in year 1974, either he had not obtained sale­ deed in favour of wife or had not waited to claim ownership till dissolution of marriage and he would have not withdrawn suit for declaration filed by him claiming that wife was Benamidar and he was real owner‑‑House was constructed in absence of husband, which was rented out by wife and remained in possession of tenant‑‑‑Electricity and water charges bills had been produced by wife‑‑‑Statement of wife that original sale‑deed was taken from her by husband for attestation of mutation, had not been challenged in cross‑examination‑‑‑Husband had not produced original title documents‑‑‑Relation between parties remained cordial till 1987, and wife had not filed suit till then claiming ownership‑‑‑Wife, in circumstances, novas‑not Benamidar of suit house, hat was its real owner‑‑‑Appellate Court had rightly reversed findings of Trial Court, which were against evidence and law of Benami transaction.

(e) Benami transaction‑‑‑-

‑‑‑‑ Source of consideration and its payment to vendor‑‑‑Onus to prove‑‑­Person alleging Benami character of transaction must prove the same.

(f) Motive‑‑‑

----Motive of a person for doing something was the basic reason as to why he had committed that act‑‑‑Act done without motive would be deemed to have been done without any reason.

Muhammad Zaman v. Abdul Hameed 2002 CLC 1209 rel.

(g) Benami transaction‑‑‑

‑‑‑‑Motive‑‑‑Onus to prove‑‑‑Person claiming to be real owner must prove motive for alienation in favour of Benamidar.

Nemo for Petitioner.

K. Jan Khattak for Respondent.

Date of hearing: 30th July, 2002.

2003 C L C 568

[Lahore]

Before, Ijaz Ahmed Chaudharv, J

SHAHID WAQQAS TRADERS through Abdul Waheed, Partner‑ ‑‑Petitioner

Versus

PAKISTAN AGRICULTURAL STORAGE AND SERVICES CORPORATION LTD. (PASSCO) through Managing Director and others‑‑‑Respondents

Writ Petition No. 13858 of 2002, decided on 29th August, 2002.

Tender‑‑‑

‑‑‑‑ Raising of bid through negotiation‑‑‑Validity‑‑‑Petitioner having participated in bid was not highest bidder‑‑‑Authority decided to negotiate with participants including the petitioner‑‑‑Petitioner had joined negotiation but his offer was not accepted being conditional and also on lesser rate than respondents‑‑‑Authority had not acted against interest of public exchequer, but had tried their best to get lifting of wheat on highest rate‑‑‑Contention raised by petitioner that he was highest bidder and was ready to pay highest rates than respondents was not established on record‑‑‑Record showed that contract concluded between Authority and respondents had partly been acted upon‑‑ ‑Contract could not be set aside on suspicion alone, unless illegalities or malpractices were apparent from record‑‑‑Respondents had given undertaking that they would pay over and above the rates settled in negotiation ‑Wheat, if not lifted, might be wasted in rainy se‑,on, which could cause huge loss to the public exchequer‑‑‑High Court declined to interfere in contract already awarded to respondents for lifting of wheat‑‑‑Constitution of Pakistan (1973), Art. 199.

PLD 2001 SC 116 fol.

PLD 1994 Lah. 315; 1998 SCMR 2268; PLD 1973 SC 733; AIR 1988 SC 157; 2000 CLC 535; PLD 1983 Lah. 86; 1998 CLC 1890 and 1994 SCMR 55 ref.

Muhammad Shahzad Shaukat and Sardar Tariq Mehmood for Petitioner.

Muhammad Akram Khawaja for Respondents Nos. 1 to 3.

Muhammad Iqbal Akhtar and M. Nawaz Awan for Respondent No.4.

Kh. Saeed‑uz‑Zafar and Sh. Abdul Manan for Respondent No.5.

2003 C L C 576

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD YOUSAF and 15 others‑‑‑Petitioners

Versus

PROVINCE OF THE PUNJAB through Secretary, Local Government and 6 others‑‑‑Respondents

Writ Petition No. 20406 of 1998, heard on 30th September, 2002.

(a) Pakistan Environmental Protection Act (XXXIV of 1997)‑‑‑

‑‑‑‑Ss. 2(xxxiii), 12 & 16‑‑‑Constitution of Pakistan (1973), Arts. 9, 14 & 199‑‑‑Constitutional petition‑‑‑Dignity of man and privacy of home‑‑­Constitutional guarantee‑‑‑Site located in vicinity of the city being used by Municipal Corporation City District Government for dumping of solid waste‑‑‑On account of dumping of solid waste, there were heaps of garbage and area was full of dirty material‑‑‑Hundreds of people had died in locality due to various diseases caused by dumping of solid waste‑‑‑Enormous difficulties faced by people of locality could not be imagined‑‑‑People of such locality being citizens of the country were entitled to equal protection of law‑‑‑Pollution in the form of slow poisoning was being faced by people of the said locality since long‑‑­Duty of City District Government was to redress grievance of people of such locality‑‑‑High Court treated Constitutional petition as public interest litigation and directed the City District Government to make alternative arrangement and select suitable place for dumping of solid waste away from residential areas within one year, and till then take all necessary possible steps to minimize effects of dumping ground‑‑‑Constitutional petition was disposed of accordingly.

Mrs. Anjum Irfan v. L.D.A. Writ Petition No.25084 of 1997; PLD 2002 Lah. 555 and Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 rel.

(b) Pakistan Environmental Protection Act (XXXIV of 1997)‑‑‑

‑‑‑‑Preamble, Ss. 2(xxxiii), 12 & 16‑‑‑Constitution of Pakistan (1973), Art's. 9, 14 & 25‑‑‑Po.iution free environment, necessity of‑‑­Responsibility of citizens and public functionaries to reduce pollution, emphasized.

It is a matter of common knowledge that pollution creates dangerous gases etc. which are injurious not only to human life, but also to lives of animals, birds and plants.

Pollution is the form of slow poisoning.

Problem of pollution is more dangerous as compared to destruction by hydrogen bomb. It is proper and high time to implement law in letter and spirit without discrimination as life of human being is more precious. In fact, every one is not saved from attack of pollution. In this view of the matter, each and every citizen, public functionary, authority and body must discharge its responsibility to reduce this problem at any rate at any costs.

Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 fol.

Aitzaz Ahsan for Petitioners.

Ch. Muhammad Bashir, A.‑A.G. for Respondents Nos. 1 to 4.

Kh. Muhammad Afzal for Respondent No.5.

Nawaz Anjum, Director Legal on behalf of Respondents Nos. 6 and 7.

Date of hearing: 11th September, 2002.

2003 C L C 587

[Lahore]

Before M. Javed Buttar, J

Mst. RAZIA BEGUM and 6 others‑‑‑Appellant

Versus

PAKISTAN, (for purposes of service through Chief Settlement and Rehabilitation Commissioner, 11‑Egerton Road, Lahore) and 15 others‑‑‑Respondents

Regular Second Appeal No. 5 of 1992, heard on 10th October, 2001.

(a) Hindu Inheritance (Removal of Disabilities) Act (XII of 1928)‑‑‑--

‑‑--S. 2‑‑‑Inheritance, exclusion from‑‑‑Scope‑‑‑Persons governed by Hindu Law could be excluded from inheritance, if they were lunatics or idiots from birth, but not otherwise‑‑‑Supervening lunacy was not a ground of exclusion from inheritance.

Parameswaram Pillai Velayudham Pillai represented by Next, Friend Neelamma Pillai Lakhshmi Pillai v. Parameswaram Pillai Narayana Pillai alias Kesava Pillai AIR 1961 Mad. 345 rel.

(b) Hindu Inheritance (Removal of Disabilities) Act (XII of 1928)‑‑‑-

‑‑‑‑S. 2‑‑‑Inheritance, exclusion from‑‑‑Legal heirs of Hindu landlord sold his property treating him as lunatic‑‑‑Validity‑‑‑Persons governed by Hindu Law could be excluded from inheritance, if they were lunatics or idiots from birth, but not otherwise‑‑‑Supervening lunacy was not a ground of exclusion from inheritance‑‑‑No evidence was available on record to establish lunacy of Hindu landlord by birth, rather he became insane in later stage of his life‑‑‑Hindu landlord could not .be disinherited on such basis under S.2 of the Act‑‑‑No valid title vested in ,legal heirs of Hindu landlord during his lifetime to competently and validly enter into sale transactions regarding property belonging to their such predecessor‑‑‑Sale deeds executed by legal heirs (vendors) being illegal were void ab initio and no valid title thereunder was created in favour of vendee.

Parameswaram Pillai Velayudham Pillai represented by Next Friend Neelamma Pillai Lakhshmi Pillai v. Parameswaram Pillai Narayana Pillia, alias Kesava Pillai AIR 1961 Mad. 345 rel.

Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Hardayal Mal v. Mulk Raj and another AIR 1928 Lah. 911; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Muhammad Hussain v. Waheed Ahmad and 3 others 2000 MLD 281; Messrs Canal Breeze Cooperative Housing Society Limited v. Agricultural and Transport Development Corporation (Pvt.) Limited 2000 SCMR 506 and Muhammad A iwar v. Muhammad Siddiq Hashim PLD 1992 SC 838 ref.

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

‑‑‑‑Ss. 3 & 20‑‑‑Evacuee property‑‑‑Confirmation of sale‑‑‑Sale by or on behalf of an evacuee would be ineffective, unless confirmed by Custodian on or before 1‑3‑1947 under S. 20 of the Act.

Maj. Mehtab Khan v. The Rehabilitation Authority and another PLD 1973 SC 451 rel.

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

‑‑‑‑Ss. 6, 7 & 20‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.3‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), S.4‑‑‑Evacuee property‑‑‑Confirmation‑ of sale‑‑­Scope‑‑‑Evacuee. property, once, validly acquired by Government through notification—Right title and interest of any evacuee or person claiming under him in property specified in notification would stand extinguished from date of its publication‑‑‑Property would vest wholly' and absolutely in Central Government free from all encumbrances and would cease to be evacuee‑‑‑Such acquired property would pass into compensation pool‑‑Jurisdiction of all other authorities including 'Custodian of Evacuee Property would stand excluded.

Maj. Mehtab Khan v. The Rehabilitation Authority and another (PLD 1973 SC 451) rel.

Kh. Muhammad Farooq Mehta for Applicants.

Kh. Ghulam Abrar Majal for Respondent Nos. 2 to 16

Altaf Ahmed Khan for Respondent No.7.

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

2003 C L C 598

[Lahore]

Before Farrukh Lateef, J

SHAFIQ AHMED ‑‑‑Petitioner

Versus

MEPCO WAPDA and others-----Respondents

Writ Petition No.6931 of 2002, decided on 2nd September 2002.

Electricity Act (IX of 1910)‑‑‑

‑‑‑‑Ss. 26‑A, 39, 39‑A & 44‑‑‑Constitution of Pakistan (1973), Art. petition‑‑‑Disconnection of electric supply and removal of electric meter on allegation of tampering with the meter‑‑­ Petitioner had alleged that the Authority without prior notice to him had disconnected electric supply in his premises and had removed his electric meter with mala fide intention‑‑‑Authority had opposed the petition contending that petitioner was served with a notice to the effect that on checking meter installed in his premises, was found tampered with and that petitioner was called upon to show cause within seven days as to why his premises should not be disconnected and meter removed‑‑­Evidence on record had proved that premises of petitioner was disconnected and meter was removed before issuance of said notice and even the notice did not relate to disconnection or removal of the meter‑‑‑Service of notice according to which petitioner was directed to show cause against issuance of detection bill and he was further asked to associate with the Detection Committee with all relevant record in connection with preparation of detection bill, was also not proved‑‑­Detection bill in circumstances, was prepared without service of notice on the petitioner and without his association in Detection Committee‑‑­Detection bill did not disclose as to on what basis it was prepared and to which period it related‑‑‑Action of the Authority‑in disconnecting premises of petitioner, removing of meter, lodging F.I.R,. against petitioner and issuing detection bill to him without notice to petitioner, were against mandatory provisions of law, without justification and without lawful authority‑‑‑High Court accepting petition directed the Authority to reconnect petitioner's premises and to instal meter.

Muhammad Arif Alvi for Petitioner.

Malik Haider Jamal for Respondents Nos. 1 to 3 and 5.

Date of hearing: 2nd September, 2002.

2003 C L C 665

[Lahore]

Before Muhammad Sair Ali, J

BARKAT ALI ‑‑‑Petitioner

Versus

ALLAH DITTA‑‑‑Respondent

Civil Revision No. 1829 of 1997, heard on 30th July, 2002.

Specific Relief Act (I of 1877)‑‑‑--

‑‑‑‑Ss. 42 & 54‑‑‑Suit for declaration and injunction‑‑‑Plaintiff had claimed that he being real brother of the deceased owner of suit land was legally competent to challenge gift‑deed allegedly executed by deceased owner in his lifetime in favour of defendant‑‑‑Trial Court found that plaintiff was not legal heir of the deceased owner and being a stranger neither could inherit suit property of the deceased nor could challenge gift‑deed executed by deceased in favour of defendant‑‑‑Findings of Trial Court. were reversed by Appellate Court and the case remanded to Trial Court with direction to decide the same on other issues involved in the case, but issue with regard to plaintiff being one of the legal heir of deceased owner and entitlement of plaintiff to share of inheritance from property of deceased owner, which issue had been decided by Appellate Court in favour of plaintiff, would not be touched by Trial Court‑‑‑Said judgment of .Appellate Court attained finality as same was not challenged‑‑‑Trial Court on remand dismissed suit on all other issues, except issue which was finally decided by Appellate Court in favour of the plaintiff‑‑‑Appellate Court, on appeal by plaintiff against judgment of Trial Court passed on remand of case, despite finality was attached to the earlier judgment of Appellate Court, with regard to status of plaintiff as one of legal heirs of deceased owner, proceeded to re‑decide the said issue and found that deceased was not real brother of plaintiff and that he could not ask for cancellation of gift‑deed executed in favour of defendant‑‑‑Validity‑‑‑Appellate Court had exceeded its jurisdiction by re‑deciding the issue which stood finally decided and settled in favour of plaintiff as Appellate Court had no jurisdiction to re­open finding on said issue‑‑‑Judgment and decree passed by Appellate Court in post remand proceedings were set aside by the High Court and in interest of justice, equity and fairness, case was remanded to Appellate Court to decide the appeal in accordance with law.

Raja Abdul Razzaq for Petitioner.

Nemo for Respondent.

Date of hearing: 30th July, 2002.

2003 C L C 676

[Lahore]

Before Tanvir Bashir Ansari, J

MUTTALI and another‑‑‑Petitioners

Versus

MUHAMMAD ALI ‑‑‑Respondent

Civil Revision No.2221 of 1995, heard on 26th July, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 8 & 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.100‑‑‑Suit for possession and declaration‑‑‑Presumption as to document of thirty years old‑‑‑Trial Court dismissed suit, but Appellate Court decreed the same‑‑­Appellate Court considered oral and documentary evidence produced by parties and came to the conclusion that plaintiff had been able to prove his ownership in respect of suit property through oral statements of witnesses and unregistered sale‑deed executed in his favour more than thirty years back‑‑‑Consideration of sale as mentioned in the said deed being less than Rs.100, same did not require compulsory registration‑‑­Nothing had been brought out to rebut said document by defendants ‑‑­Evidence on record had fully proved that exclusive owner of suit property had validly sold the same in favour of the plaintiff‑‑‑Appellate Court, in circumstances, had rightly set aside judgment and decree of Trial Court and had decreed the suit ‑‑‑in absence of any misreading, or non‑reading of evidence on record and irregularity of jurisdiction, judgment and decree passed by Appellate Court could not be interfered with by High Court in exercise of revisional jurisdiction.

Malik Abdul Wahid for Petitioners.

Muhammad Nisar Arshad Kotla for Respondent.

Date of hearing: 26th July, 2002.

2003 C L C 688

[Lahore]

Before Mian Saqib Nisar, J

MEHFOOZ ALI and 10 others‑‑‑Petitioners

Versus

MUHAMMAD MUNIR‑‑‑Respondent

Civil Revision No. 1587 of 1999, heard on 3rd July, 2002.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 6 & 24‑‑‑Suit for pre‑emption ‑‑‑Dispute with regard to determination of decretal amount‑‑‑Defendant claimed that sale price of suit‑land was fixed and paid Rs.1,00,000, whereas according to plaintiffs sale price was Rs.40,000‑‑‑Trial Court decreed the suit determining the sale price as Rs.40,000 as asserted , by the plaintiff‑‑‑Appellate Court reversed the finding of Trial Court holding that defendant had successfully proved the sale price as Rs.1,00,000 and suit was dismissed on account of deficiency in payment of court‑fee on plaint‑‑‑High Court remanded case to Appellate Court with direction to allow reasonable opportunity. to plaintiff to make up deficiency in court‑fee‑‑‑High Court specifically directed in .the remand order that Appellate Court would decide appeal afresh without reopening issues with regard to determination of sale price of suit‑land which Appellate Court had already decided as Rs.1,00,000‑‑‑Plaintiff having provided court‑fee on the plaint, suit was decreed by Appellate Court in post remand proceedings‑‑‑Issue of sale price of Rs.1,00,000 having finally been settled and plaintiffs having already deposited Rs.40,000, plaintiffs were bound to deposit Rs.60,000 as balance sale price for execution of decree, but instead of depositing the same, they distributed the decretal amount‑‑‑Plaintiffs having neither deposited balance decretal amount nor being prepared to pay the same, decree passed in their favour could not have been executed‑‑‑Plea of plaintiffs that as no time was specified in the decree directing them to deposit balance amount, they had been prevented to deposit balance amount, was repelled, because said plea of plaintiffs was inconsistent and destructive of their stand in reply to objection petition filed by judgment‑debtor and that Trial Court while decreeing suit of plaintiffs had granted 15 days for deposit of sale price and when sale price was modified by Appellate Court, even if no date was fixed by Appellate Court, plaintiffs were obliged to make payment in terms of first decree wherein 15., days were provided‑‑‑Plaintiffs/decree‑holders at no stage having applied to any forum including executing Court to permit them for deposit of balance amount and on the contrary raised frivolous plea, offer made by plaintiffs at later stage for deposit of decretal amount, was of no value because decree in their favour already stood annulled, frustrated and nugatory‑‑‑Execution application, in circumstances, was rightly dismissed by Executing Court‑‑‑In absence of any error either legal or factual in orders passed by Courts below, same could not be interfered with in revisional jurisdiction of High Court.

Shaukat Ali Mahr for Petitioners.

Kanwar Saeed Ahmed with Syed Iftikhar Shah for Respondent

Date of hearing: 3rd July, 2002.

2003 C L C 699

[Lahore]

Before Syed Jamshed Ali, J

MUHAMMAD BAKHSH‑‑‑Petitioner

Versus

MEMBER, BOARD OF REVENUE and others‑‑‑Respondents

Writ Petition No. 182/R of 1999, decided on 9th February, 2002.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑--

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Allotment of land against unsatisfied units‑‑‑Petitioner had sought direction to Authority to provide record of allotment of land made in his favour and also sought direction to allot him land against his unsatisfied claim alleging that his units had partly been satisfied‑‑­Irrespective of question whether any units of petitioner were pending satisfaction, the fact remained that first application in that respect was made by petitioner before the Authority long after repeal of Settlement laws‑‑‑Pending claim could not be said to be "pending proceedings" within meaning of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 whereas first application was made by petitioner in that respect on 21‑9‑1982‑‑‑Directions sought by petitioner for satisfaction of his alleged outstanding claim, if any, could not be issued.

M.M. Alam Chaudhry and N.A. Butt for Petitioner.

2003 C L C 706

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD KHAN‑‑‑Petitioner

Versus

MUHAMMAD ARIF ‑‑‑ Respondent

Civil Revision No. 1980‑D of 1993, decided on 22nd July, 2002.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 6 & 13‑‑‑Suit for pre‑emption ‑‑‑Making of Talbs' proof of‑‑‑Trial Court dismissed the suit holding that plaintiff though had proved the making‑ofTalb‑e‑Muwathibat', but he did not make Talb‑e‑Ishhad' in accordance with law‑‑‑Appellate Court decreed the suit holding that since Trial Court had determined thatTalb‑e‑Muwathibat' was made' in accordance with law, it was a contradiction in terms to hold that notice of Talb‑e‑Ishhad was not given within prescribed time‑‑‑Validity‑‑‑Plaintiff had himself stated that he came to know about sale in dispute three months before filing of suit and witnesses produced by him had stated that Talb‑e‑Muwathibat' was made by plaintiff not on the very day he came to know about sale, but, was made on the following day‑‑‑When date of knowledge of sale had not specifically been proved and making of validTalb‑e‑Muwathibat' had not been established, performance of Talb‑e‑Ishhad could not be established within framework and period as provided in S.13 of Punjab Pre‑emption Act, 1991‑‑­Plaintiff having failed to establish date of knowledge and performance of Talb‑e‑Muwathibat', notice of Talb‑e‑Ishhad even . if proved to have been sent, would not fulfil requirement of S.13(3) of Punjab Pre‑emption Act, 1991‑‑‑Plaintiff having failed to prove bothTalb‑e‑Muwathibat' and `Talb‑e‑Ishhad', judgment and decree passed by Appellate Court were set aside and suit filed by plaintiff was dismissed.

Ghulam Jilani and 3 others v. Ghulam Muhammad and 7 others 1991 SCMR 2001 ref.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑--

‑‑‑----S. 13‑‑‑Talb‑e‑Muwathibat', meaning of‑‑‑Talb‑e‑Muwathibat' would mean immediate demand by a pre‑emptor in the sitting or meeting (Majlis) in which he had come to know of sale declaring his intention to exercise his right of pre‑emption.

Syed Asghar Haider for Petitioner.

Dr. Shaukat Hussain for Respondent.

Date of hearing: 18th July, 2002.

2003 C L C 710

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AMIN KHAN‑‑‑Appellant

Versus

MUHAMMAD ISHAQUE and another.‑‑‑Respondents

Regular Second Appeal No.49 of 1997, decided on 1st August, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement of sale‑‑‑Plaintiff by producing oral as well as documentary evidence on record had proved execution of agreement of sale by defendant and receipt of earnest , money‑‑‑Defendant had also admitted execution of agreement of sale in favour of plaintiff and receipt of earnest money and that on his request, plaintiff had extended date for performance of agreement‑‑‑Pending suit another person claimed that prior to the plaintiff he had entered into agreement of sale of suit property with the defendant‑‑‑Said other person had also filed suit for specific performance of agreement‑‑‑Trial Court consolidated two suits and after recording evidence. decreed suit filed by plaintiff and dismissed suit filed by the other person‑‑‑Appellate Court also dismissed suit filed by said other person and upheld judgment and decree of Trial Court‑‑‑Plea of plaintiff. that agreement of sale allegedly executed in favour of said other person had been fabricated to defeat his suit, found support from evidence on record and Courts below in circumstances had rightly decreed the suit filed by plaintiff and dismissed the suit filed by said other person.

Abdul Aziz Qureshi for Appellant.

Date of hearing: 1st August, 2002.

2003 C L C 718

[Lahore]

Before Mian Saqib Nisar, J, WALI MUHAMMAD ‑‑‑Appellant

Versus

MUHAMMAD RAFIQ and others‑‑‑Respondents

Regular Second Appeal No. 181 of 1986, decided on 6th December, 2000.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 6, 34(2) & 35‑‑‑Suit for pre‑emption ‑‑‑No decree having been passed in favour of pre‑emptor before 31‑7‑1986 his suit was dismissed on that account by Trial Court and appeal against such judgment also failed‑‑‑Plaintiff had contended that in view of Ss.34(2) & 35 of Punjab Pre‑emption Act, 1991, his suit could not have been dismissed and that he could always seek revival of his case under S.35 of Punjab Pre­emption Act,' 1991‑‑‑Validity‑‑‑Contentions of plaintiff were repelled because provisions of Ss.34(2) & 35 of Punjab Pre‑emption Act, 1991 were not applicable to his case.

Abdul Waris v. Muhammad Yousaf 1997 PSC 858 and Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129 ref.

Kh. Mushtaq Ahmad for Appellant.

Zahid Hussain Khan for Respondents.

Date of hearing: 6th December, 2000.

2003 C L C 725

[Lahore]

Before Jawwad S. Khawaja, J

KHADIM HUSSAIN through Legal Heirs‑‑‑Petitioner

Versus

Mst. RASHIDA KHANUM and another‑‑‑Respondents

Civil Revision No. 1846‑D of 1998, heard on 9th July, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 12‑‑‑Suit for specific performance of agreement of sale‑‑‑Plaintiff had claimed that defendants had entered into an agreement to sell land in his favour and defendants denied the execution of agreement as alleged by the plaintiff‑‑‑Receipt on record was signed by husband of one of the defendants and brother of other, but same was‑not executed by him in his capacity as attorney of defendants‑‑‑Execution of alleged oral agreement of sale had not been proved from evidence on record, 6ut.there appeared to be an agreement‑in respect of only one Kanal out of 4 Kanals and 16 Marlas which had been admitted by defendants in their written statement‑‑‑Plaintiff, in circumstances, at best was entitled to the specific performance of agreement in respect of one Kanal only for consideration‑‑‑Decree in favour of plaintiff was passed for one Kanal only which was in possession of the plaintiff‑‑‑Trial Court would refund balance amount which had been deposited by plaintiff pursuant to decree passed by Trial Court in his favour.

Atta‑ul‑Mohsin Lak for Petitioners.

Khan A. Hameed Khan for Respondents.

Date of hearing: 9th July, 2002.

2003 C L C 727

[Lahore]

Before Malik Muhammad Qayyum and Karamat Nazir Bhandari, JJ

ZAWAR HUSSAIN SHAH‑‑‑Appellant

Versus

GOVERNMENT OF THE PUNJAB and others‑‑‑Respondents

Intra‑Court Appeals Nos.48, 49, 50 and 51 of 1995 (in Writ Petition No.4191 of 1994), decided on 14th May, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199(1)(a)(i)‑‑‑ Law Reforms Ordinance (XII of 1972), S.3‑‑‑Writ of mandamus, issuance of‑‑‑Petitioner alongwith others sought direction in Constitutional petition in the nature of mandamus to Authority to allot residential plot at the old Thal Development Authority rates‑‑‑High Court had come to the conclusion that in view of the Policy, petitioner could not be held to he entitled to grant of allotment of plot in question‑‑‑According to Policy referred by High Court, land, building and plots in Thal Mandi Towns in occupation of Government were to be transferred free of costs to occupants thereof while some quarters in various towns were to be transferred free of costs to District Administration for pool accommodation and remaining plots/houses were to be disposed of through open auction‑‑‑Policy seemed to be fair and did not infringe any principle of law or equity‑‑‑Petition otherwise filed after 13 years of unexplained delay, suffering from laches, was rightly dismissed by High Court.

Zahid Hussain Khan for Appellant.

2003 C L C 733

[Lahore]

Before Muhammad Sair Ali, J

SULTAN through Legal Heirs‑‑‑Appellants

Versus

MUHAMMAD FAROOQ and another‑‑‑Respondents

Regular Second Appeal No. 19 of 1994, heard on 5th July, 2002.

Specific Relief Act (I of 1877)‑‑‑-

‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement of sale‑‑‑Trial Court dismissed the suit after recording of evidence of the parties holding that documents relied upon by plaintiffs were not validly executed by executant, but Appellate Court decreed the suit holding that agreement to sell and receipt of earnest money had properly been executed‑‑‑Appellate Court which had placed heavy reliance on statement of scribe who stated that earnest money was purportedly made to vendor/executor by plaintiffs, but had failed to deal with his admission in cross‑examination that he did not know the executant personally‑‑‑Such factor would reflect adversely upon case of plaintiffs‑‑‑Stamp vendor from whom stamp papers were purchased had not been produced for evidence by plaintiffs‑‑‑Payment had not been made in presence of the Petition‑Writer as stated by him and other witnesses‑‑‑Trial Court had rightly dismissed the suit in view of material contradictions in statements of witnesses and plaintiffs with regard to material fact‑‑‑Appellate Court had failed to appreciate evidence on record correctly‑‑‑Judgment and decree passed by First Appellate Court suffering from misreading and misinterpreting of evidence on record, were set aside in second appeal and that of Trial Court were restored.

Syed Zain‑ul‑Abidin and Malik Rehmat Khan for Appellants.

S.M. Tayyab for Respondents.

Date of hearing: 5th July, 2002.

2003 C L C 737

[Lahore]

Before Parvez Ahmad, J

WAPDA through Chairman, Lahore‑‑‑Petitioner.

Versus

MUHAMMAD SANAULLAR KHAN through Legal Heirs and another‑‑‑Respondents

Civil Revision No.3225 of 1996, heard on 22nd July, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XLI, Rr. 17(2) & 21‑‑‑Ex parte decree passed by Appellate Court‑‑‑Application for setting aside of ex parte decree‑‑‑Appellate Court allowing appeal against the judgment and decree passed by Trial Court, decreed the suit by way of ex parte proceedings against respondent and application for setting aside ex parte order/decree filed by respondent was also dismissed by the Appellate Court‑‑‑Respondent in his application for setting aside ex parte order/decree against him had alleged non‑service of notice on him and had claimed that in circumstances there was sufficient cause to set aside ex parte order/decree passed by Appellate Court below‑‑‑Question raised by respondent in his application for setting aside ex parte order/decree could be determined after framing of issues and recording of evidence‑‑‑Such course having not been adopted order, dismissing application of respondent suffered from material irregularity‑‑­Order of Appellate Court dismissing application of respondent for setting aside ex parte order/decree, was set aside by High. Court and case was remanded to the Appellate Court with direction to frame issues arising out of pleadings with regard to application of respondent filed for setting aside ex parte order and to decide the matter afresh after giving opportunity to parties to produce their evidence and .to dispose of application of respondent in accordance with law.

Aurangzeb Mirza for Petitioner.

Awan Muhammad Hanif for Respondents.

Date of hearing: 22 d July, 2002.

2003 C L C 750

[Lahore]

Before Syed Jamshed Ali, J

ARSHAD ALI ‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE SHAKARGARH and others‑‑‑Respondents

Writ Petition No.11260 of 2002, decided on 28th June, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Specific Relief Act (I of 1877), S.54‑‑‑Suit for permanent injunction against co‑sharers of property‑‑‑Validity‑‑‑Trial Court granted temporary injunction to plaintiff relying on Khasra Girdawari for the year 1995‑96, but ignored subsequent events particularly the ejectment of plaintiff from the land in dispute‑‑‑Suit filed by plaintiff was for permanent injunction simpliciter and it was doubtful whether such a suit was maintainable against co‑sharers‑‑‑Grant or refusal of temporary injunction essentially lay in the discretion of Court and in the present case Appellate Court had rightly exercised its discretion in recalling injunction order passed by Trial Court.

Pervaiz Inayat Malik for Petitioner.

Date of hearing: 28th June, 2002

2003 C L C 752

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Mst. SHAGUFTA NAAZ‑‑‑Petitioner

Versus

LAHORE METROPOLITAN CORPORATION, LAHORE through Town Planner, Lahore and 2 others‑‑‑Respondents

Writ Petition No.9981 of 2002, decided on 12th August 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199(1)(a)(i)‑‑‑Constitutional petition‑‑‑Writ of mandamus, issuance of‑‑‑Petitioner had sought issuance of writ of mandamus to the Authority to prevent private respondent from constructing illegal basement from the foundation of building of the petitioner‑‑ ‑Private respondent and the Authority had stated that construction in dispute was being made according to the site plan and that apprehension of petitioner that it would be used for commercial purposes was unfounded‑‑‑ Question as to whether construction in dispute was raised according to th. site plan or not needed factual determination which could not be resolved in Constitutional jurisdiction of High Court.

Qadar Zaman Shah Temori for Petitioner.

Iqbal Ahmad Qureshi for Respondent No.2.

M. Bilal Khan, Addl. A.‑G. for Respondents Nos. 1 and 3.

Date of hearing: 12th August, 2002.

2003 C L C 760

[Lahore]

Before Abdul Shakoor Paracha, J

ALLAH DAD‑‑‑Petitioner

Versus

LAL KHAN and another‑‑‑Respondents

Civil Revisions Petitions Nos.392 and 393 of 1997, heard on 6th August, 2002.

Specific Relief Act (I of 1877)‑‑‑--

‑‑‑‑Ss. 42 & 54‑‑‑Suit for declaration and permanent injunction‑‑‑Both defendants and plaintiff purchased separately their respective lands from joint Khata‑‑‑Defendants who purchased their land earlier to the plaintiff, had alleged that plaintiff who purchased land subsequently had encroached upon land purchased by them‑‑‑Revenue Officer, on demarcation, reported that plaintiff had encroached upon the land of defendants. while Local Commissioner had proved the report of Revenue Officer by site‑plan‑‑‑Trial Court on the basis of said evidence on record had rightly proceeded to dismiss the suit filed by the plaintiff and decreed the suit filed by defendants and Appellate Court had rightly upheld judgment of Trial Court‑‑‑Concurrent findings of fact against plaintiff based on unrebutted evidence on record, could not be interfered with by High Court in exercise of its revisional jurisdiction.

Muhammad Hussain Awan for Petitioner.

Malik Abdus Sattar Chughtai for Respondents.

Date of hearing: 6th August, 2002.

2003 C L C 803

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD NAZIR --- Petitioner

Versus

MUHAMMAD KHAN and another---Respondents

Civil Revision No.965 of 1994, heard on 16th January, 2002.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.114---Suit for specific performance of agreement of exchange ---Estoppel by contract---Case of plaintiff was that, defendant through agreement, had agreed to exchange his land with his land and defendant on basis of the said agreement sold/exchanged land of plaintiff to another person, but defendant did not abide by agreement to give possession of his land to the plaintiff--­Defendant had resisted the suit contending that un-partitioned land could not be exchanged and that said agreement in that respect was void--Contention was repelled because once having taken benefit and premium of agreement by alienating land owned by plaintiff, defendant was estopped by his conduct from taking plea of invalidity of the agreement--­Concurrent judgment and decree regarding enforcement of agreement of exchange, were upheld by High Court.

Abdul Basir Khan and others v. Sanaur Rehman and others PLD 1994 Pesh. 197; Noor Rehman and others v. Muhammad Yousat 2000 CLC 1138 and Muhammad Sadiq and another v. Abdul Aziz and another 1990 CLC 1387 ref.

Sheikh Naveed Shahar Yar for Petitioner.

Muhammad Anwar Sipra for Respondents.

Date of hearing: 16th January, 2002.

2003 C L C 807

[Lahore]

Before Mian Hamid Farooq, J

FAZAL MUHAMMAD ---Petitioner

Versus

GHULAM SHABBIR---Respondent

Civil Revision No. 1062 of 1996, decided on 4th July, 2002.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Suit for pre-emption ---Making of Talbs---Proof of---Trial Court in its well-reasoned and speaking judgment, after discussing each and every witness and document produced by parties, had rightly come to conclusion that plaintiff had performed his Talb-e-Muwathibat as well as Talb-e-Ishhad according to law---Plaintiff had fully proved the attestation of notice by two truthful witnesses---Even if plaintiff had not stated in the plaint with specific reference to the date, time and place of making of Talb-e-Muwathibat and Talb-e-Ishhad, he could not be non-suited on such ground---Trial Court, in circumstances, had rightly decreed the suit and Appellate Court was not justified to set aside judgment and decree passed by Trial Court holding that plaintiff had not stated in plaint with specific reference to date, time and place of making declaration with regard to Talbs---Judgment of Appellate Court below passed contrary to law as declared by Supreme Court, was not sustainable in law and was set aside in circumstances.

Abdul Qayum Khan v. Mussa Khan and 5 others 1995 CLC 729 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 and Haji Noor Muhammad v. Abdul Ghani and 2 other 2000 SCMR 329 ref.

A. Karim Malik for Petitioner.

Anwar Bhinder Chaudhary for Respondent.

Date of hearing: 17th June, 2002.

2003 C L C 812

[Lahore]

Before Maulvi Anwarul Haq and Mian Hamid Farooq, JJ

Mst. AISHA BIBI---Appellant

Versus

ABDUL HAMEED and others---Respondents

Regular First Appeal No.32 of 1991, heard on 14th January, 2002.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement of sale---Alleged executor of agreement had totally denied execution of agreement and receipt of any part of consideration as earnest money from the plaintiff/vendee and had explained that plaintiff who was his son got his thumb-impression on plain papers to settle the matter of encroachment challan and that he had never purchased stamp paper for the agreement--­Validity---Executor who denied execution of agreement was 100 years of age and no reason was brought on record as to why should a 100 years old man decide to sell his property and that too to his son at the fag end when he had another son and a wife---No thumb-impression of purchaser of stamp paper was found at the back of said document---Scribe of alleged agreement on his own showing had been convicted at least twice for forging agreements and he had not at all explained as to how he knew the executor---Valid execution of alleged agreement to sell, and receipt of any part of consideration as earnest money, having not been proved, Trial Court was not justified in decreeing the suit---Judgment and decree passed by Trial Court were set aside by High Court in appeal.

Muhammad Sharif Chohan for Appellant.

Muhammad Yaqoob Sabir for Respondents.

Date of hearing: 14th January, 2002.

2003 C L C 819

[Lahore]

Before Mian Saqib Nisar and Mian Hamid Farooq, JJ

MAQSOOD AHMAD KHAN and another---Appellants

Versus

MUHAMMAD SAEED and 3 others---Respondents

Regular First Appeal No.56 of 1994, heard on 3rd April, 2002.

Specific Relief Act (I of 1877)---

----S. 8---Transfer of Property Act (IV of 1882), - S.54---Suit for possession---Agreement of sale---Proof of execution---Plaintiff in his suit had challenged agreement of sale of the suit property in favour of defendants alleging that defendants had procured agreement through fraud and misrepresentation---Evidence on record had proved that plaintiff had entered into agreement to sell the suit property with defendants for consideration---Execution of agreement had been proved by marginal witnesses---Plaintiff had received amount from, defendants as earnest money and balance amount was payable at the time of finalization of transaction---Receipt of earnest money had also been proved---Plaintiff had executed the agreement to sell, had appeared before the Sub-Registrar, received money of consideration, and delivered possession to the defendant---Fact that amount in question deposited in the name of plaintiffs' nephew who was marginal witness at the time when sale-deed was presented and said amount was misappropriated by nephew of plaintiff, would not make the sale-deed void or ineffective ---Trial Court, in circumstances, had rightly dismissed the suit.

Muhammad Iqbal Ghaznavi for Appellants.

Ch. Nazeer Ahmed Bhutta for Respondents.

Date of hearing: 3rd April, 2002.

2003 C L C 825

[Lahore]

Before Tanvir Bashir Ansari, J

PROVINCE OF PUNJAB through District Collector, District Khushab and another---Petitioners

Versus

ABDUR RASHID ---Respondent

Civil Revision No.291-D of 1998, decided on 30th July, 2002.

Specific Relief Act (I of 1877)---

----S. 42---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.10 & 30---Suit for declaration---Grant of proprietary rights in respect of land under 15 Years Lease Scheme---Application of allottee for grant of proprietary rights in respect of land allotted to him under 15 Years Lease Scheme, was concurrently rejected by District Collector and on appeal by the Commissioner on ground that land in dispute had already been reserved for allotment to Armed Forces Personnel ---Allottee without availing remedy of approaching Board of Revenue filed suit for declaration in Civil Court which was dismissed by Trial Court, but Appellate Court set aside judgment and decree of Trial Court and decreed the suit holding that defendants had not produced sufficient evidence to prove that land in dispute was reserved for Armed Forces Personnel and that plaintiff was entitled to grant of proprietary rights in respect of suit­-land---Validity---Defendants had produced on record sufficient evidence to prove that land in dispute was reserved for Military Personnel but Appellate Court did not carefully appreciate the same decree passed by Appellate Court were set aside and case was remanded to Appellate Court to decide the specific question as to whether land in dispute did or did not fall within the Scheme reserved for Personnel of Armed Forces after appreciation of evidence on record and after given opportunity of hearing to the parties.

Mian Muhammad Attier for Petitioners.

Sh. Naveed Shaharyar and Abid Saqi for Respondent.

Date of hearing: 25th July, 2002.

2003 C L C 830

[Lahore]

Before Jawwad S. Khawaja and Abdul Shakoor Paracha, JJ

ANWAR IQBAL---Appellant

Versus

Mian TUFAIL AHMED and another---Respondents

Regular First Appeal No.27 of 1995, decided on 21st February, 2002.

(a) Adverse possession---

---- Plea of adverse possession in, respect of immovable property was declared as un-Islamic in terms of judgment of Shariat Appellate Bench reported as 1991 SCMR 2063, which was to take effect from 31-8-1991---Said judgment would not in any manner affect rights of parties which had matured prior to the date of its effectiveness---Party claiming to be owner of land vide sale-deed, could not simultaneously raise plea of ownership on basis of adverse possession since such pleas were mutually contradictory and destructive---In order to establish adverse possession one had to specify date of possession, nature in which it was acquired and overt act committed by him to show open and hostile possession and right against legal owners of the land.

Mst. Asghari Bibi and 3 others v. Settlement Officer, Kotli PLD 1992 Azad J&K 29; Abdul Latif v. Abdul Qayyurn PLD 1992 Pesh. 103; Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063; Abdul Rehman and 12 others v. Muhammad Akram and 79 others 1999 SCMR 100 and Khuda Bakhsh and others v. Mureed and others 1999 SCMR 996 ref.

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

----S. 8---Suit for Possession---Plaintiffs had proved that they were legal heirs of deceased owner of suit-land being the sons of real maternal uncle of deceased owner---Plaintiffs, in circumstances, were entitled to possession of suit-land being lineal descendants of its deceased owner.

Qazi Khurshid Alam for Appellant.

M.A. Zafar for Respondents.

Date of hearing: 10th January, 2002.

2003 C L C 838

[Lahore]

Before Abdul Shakoor Paracha, J

UMAR KHAN---Petitioner

Versus

ABDUL GHAFFAR---Respondent

Civil Revision No.578 of 2001, decided on 4th March, 2002.

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

---O. V. R. 10-A---Punjab Pre-emption Act (IX of 1991), Ss.6 & 13--­Suit for pre-emption ---Service of defendant through registered post--­Registered post would be presumed to have been received by defendant if his address on envelop was correct.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Civil Procedure Code (V of 1908), O.V, R. 10-A --- Suit for pre-emption---Making of Talbs---Defendant had not denied his address on which notice was sent to him by plaintiff to establish Talb-e-­Ishhad---Trial Court as well as Appellate Court, in circumstances, had misread documentary as well as oral evidence produced by plaintiff to establish Talb-e-Muwathibat and Talb-e-Ishhad--- Concurrent findings of fact of Courts being result of complete misreading of evidence, same were set aside in revision by High Court and suit for possession through pre-emption filed by plaintiff having superior right of pre-emption, was decreed.

Muhammad Ajaib and another v. Muhammad Afzal and 2 others 1998 SCMR 2396 and Pir Walayat Shah v. Muhammad Shafi and another 1968 SCMR 1304 ref.

Kh. Abdul Hameed Butt for Petitioner.

Muhammad Hussain Awan and Raja Shafqat Khan Abbasi for Respondents.

Date of hearing: 4th March, 2002.

2003 C L C 844

[Lahore]

Before Tassaduq Hussain Jillani, J

Mst. PATHANI and 6 others---Petitioners

Versus

PROVINCE OF PUNJAB through District Collector, Bhakkar and 9

others---Respondents

Civil Revision No.272 of 1995, heard on 25th July, 2002.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), Ss.108 & O.XLI, Rr.23, 28---Suit for declaration---Remand of case by Appellate Court for framing additional issue---Suit was decreed by Trial Court, but Appellate Court setting aside judgment and decree of Trial Court remanded case to Trial Court for framing additional issue and for determining whether auction in dispute with regard to suit-land was in accordance with the procedure --Vires of auction in question not only could have been gone into by the Appellate Court while deciding with the relevant issue framed by Trial Court in the suit filed by plaintiff, but issue in that respect was also framed and decided in the rival suit filed by defendants which suit was dismissed---Appellate Court could not frame an issue which, in pith and substance was, the issue framed by Trial Court in both the suits--­Appellate Court though could direct framing of additional issue in terms of S.108 & O.XLI, R.28, C.P.C. but in the present case it should have rendered judgment and decree on issues already framed in the case by Trial Court in rival suits and Appellate Court could go into legality or otherwise of the auction in question as well---Judgment and decree passed by Appellate Court below were set aside by the High Court and the case was remanded to be decided on merits after hearing parties.

Abdul Sattar Chughtai for Petitioners.

Ghulam Farid for Respondents.

Date of hearing: 25th July, 2002.

2003 C L C 846

[Lahore]

Before Jawwad S. Khawaja and Abdul Shakoor Paracha, JJ

Messrs SIMPEX TRADING CORPORATION and another---Appellants

Versus

PROVINCE OF THE PUNJAB through Secretary, Home Department, Lahore and another---Respondents

Regular First Appeal No. 152 of 1992, heard on 26th February, 2002.

Contract Act (IX of 1872)---

----Ss. 182, 186 & 226---Civil Procedure Code (V of 1908), O.VII, R.2---Suit for recovery of amount for short supply of goods on basis of contract---Suit was resisted by defendant contending that it was mere agent acting for and on behalf of International Telecommunication System, a foreign company, and was not independent contractor--­Contract on basis of which suit was filed bad shown that defendant­-Corporation was contracting party and International Telecommunication System was only mentioned in one of the clauses of the contract which stipulated merely mode of making payment of contract price---Nothing was in the contract to suggest even remotely that defendant was acting as an agent of said foreign company---Defendant-Corporation was liable under law to pay amount for short supply of goods made by it under contract---Plaintiffs, in circumstances, were rightly found entitled to recover suit amount from defendants---Judgment and decree passed by Trial Court, could not be interfered with in appeal.

Syed Asghar Haider for Appellants.

Zahid Aslam Khan, A.A.-G. for Respondents.

Date of hearing: 26th February, 2002.

2003 C L C 849

[Lahore]

Before Tanvir Bashir Ansari, J

INAYAT ALI through Legal Heirs and others---Petitioners

Versus

NAZIR BEGUM and another---Respondents

Civil Revisions Nos. 1928 to 1930 of 1994, decided on 18th July, 2002.

Islamic Law---

----Inheritance---Plaintiff's plea was that she, as sole widow of deceased, was entitled to inherit 1/4th share in his estate as he had died issueless and he after divorcing his first wife had contracted second marriage with her---Defendant (legal heirs of first wife) claimed that she survived deceased as his wedded wife---Defendants in written statement admitted plaintiff as second wife of deceased, but denied that deceased had earlier divorced his first wife---Suit was decreed by Trial Court and was upheld by Appellate Court---Validity---None of defendant's witnesses had categorically denied suggestion that deceased had married plaintiff after divorcing his first wife---Courts below after reviewing entire evidence on record had come to concurrent conclusion that first wife had been divorced by deceased before contracting marriage with plaintiff--­Conclusion drawn by Courts below that plaintiff was only surviving widow of deceased and thus, was entitled to her Muslim Law share of 1/4th in his estate, was neither fanciful nor arbitrary---Courts below were justified in reaching such conclusion on basis of facts such as admitted residence of plaintiff with deceased prior to his death; performance of Hajj by deceased and plaintiff together, and the fact that the other wife had died in house of her parents instead of in the house of deceased---No misreading or non-reading of evidence on record or any material irregularity in exercise of jurisdiction was indicated---High Court dismissed revision petition in circumstances.

Muhammad Akram Javed for Petitioners.

Mian Abdur Rashid for Respondents.

Date of hearing: 16th July, 2002.

2003 C L C 869

[Lahore]

Before Mian Saqib Nisar, J

Syed ZAFAR ALI SHAH---Petitioner

Versus

Haji SANA ULLAH and another---Respondents

Civil Revision No. 1244-D of 1999 heard on 15th October, 2002.

Punjab Local Government Ordinance (VI of 1979)---

---S. 3(xivi) & Second Sched.---Right to collect entry fee---Right to collect entry fee was given to petitioner, but subsequently by virtue of another agreement between petitioner and respondent, such right was taken by respondent and said agreement was endorsed and signed by the Chairman. Town Committee who issued the certificate exonerating petitioner from any liability under the earlier agreement---Agreement was also arrived at between the respondent and the Town Committee whereby' amount due to Town Committee was agreed to be recovered from the respondent---Town Committee subsequently Issued notice to petitioner for recovery of outstanding amount on account of contract--Another such notice was also issued to respondent--Validity---Town Committee could not seek to recover amount both from petitioner and respondent separately---Either it had to be recovered from the petitioner or from respondent, but when respondent had asserted that it was he who was the contractor and that position was admitted by the Town Committee as well. Committee could not issue any recovery notice to the petitioner---In view of conspicuous omission and non-reading of evidence, judgment and decree of Appellate Court could not sustain and thus were set aside.

Ch. Inayatullah for Petitioner.

Syed Suleman Haider and Mian Muhammad Hanif for Respondents.

Date of hearing: 15th October, 2002.

2003 C L C 872

[Lahore]

Before Abdul Shakoor Paracha, J

KHURSHID BIBI and 7 others---Petitioners

Versus

SARDAR MUHAMMAD---Respondent

Civil Revision No.3221-D of 1991, heard on 31st July, 2002.

(a) Settlement Scheme No. I---

----Surrender of rights in property through agreement of association--­Where agreement of association was arrived at between the parties with regard to surrender of rights in property, recording of statements of parties by Settlement Authority was a condition precedent for acceptance of said agreement of association and if statements of parties were not so recorded, no agreement existed in eyes of law.

Mst. Amina Begum v. Additional Settlement Commissioner and others 1981 SCMR 228 ref.

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

---Ss. 42 & 54.--Civil Procedure Code (V of 1908), S.11--- Settlement Scheme No.1-.-Suit for declaration and permanent injunction---Principle of res judicata, applicability of---Question as to whether or not plaintiffs had executed agreement of association with defendant and had surrendered their rights in property to defendant had already been considered by High Court in Constitutional petition filed by the plaintiffs---Plaintiffs had re-agitated the matter of execution of agreement in suit filed before Civil Court---Civil Court, in circumstances; had rightly dismissed suit holding that it was hit by principle of res judicata and judgment of Trial Court was upheld in appeal by Appellate Court--­Concurrent findings of fact by two Courts below of competent jurisdiction could not be interfered with by High Court in exercise of its revisional jurisdiction.

Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647 ref.

Mian Iqbal Hussain Kalanauri for Petitioners.

Ch. Muhammad Bakhash for Respondent.

Date of hearing: 31st July, 2002.

2003 C L C 876

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

NASEER AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 15817 of 2001, decided on 25th February, 2003.

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

----Ss. 5 & 15---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Claim of dower and maintenance by wife---Marriage between the spouses had already been dissolved through Khula by the Family Court by way of a decree in favour of wife wherein it had been found that she was not entitled to claim maintenance or the dower amount---Wife-respondent in circumstances, had not come to the Court with clean hands as she was very much aware of the fact that marriage between the spouses stood dissolved and she had forgone the claim in lieu of Khula'---Constitutional petition of the husband was accepted in circumstances.

Abdul Rashid Randhawa for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Mrs. Shaista Qaiser for Respondent No.3.

Date of hearing: 25th February, 2002.

2003 C L C 882

[Lahore]

Before Nasira Iqbal, J

SHAUKAT ALI --- Petitioner

Versus

Mst. NUSRAT SULTANA and 3 others---Respondents

Writ Petition No.8895 of 2001, decided on 26th August, 2002.

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

----S. 5 & Sched.---Civil Procedure Code (V of 1908), O. VIII, R.11--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Maintenance allowance---Maintenance allowance was concurrently allowed by the Courts---Contention of the husband was that the wife stood divorced on 16-7-1998 and she was not entitled to maintenance allowance---Validity---Husband, petitioner for the first time had asserted that he had divorced his wife on 16-7-1998 during the proceedings before Guardian Judge while in the written statement of the husband it was stated that he was willing to reconcile with his wife if she came to his house---Held, any evidence in contradiction to the pleadings could not be entertained---Wife, in circumstances, was entitled to the maintenance allowance decreed in her favour till such time that she was divorced by the petitioner and the said divorce had attained finality.

Malik Muhammad Imtiaz Mohal for Petitioner.

Syed Waseem Haider for Respondent.

Date of hearing: 26th August, 2002.

2003 C L C 885

[Lahore]

Before Jawwad S. Khawaja and Abdul Shakoor Paracha, JJ

SABRAN BIBI and 7 others---Appellants

Versus

WAPDA through Chairman, WAPDA House---Respondent

Regular First Appeal No.249 of 1992, heard on 10th April, 2002.

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

----S. 1---Fatal accident---Suit for recovery of damages---Principle of "res ipsa loquitur", meaning and applicability of---Plaintiff, in a suit for recovery of damages under Fatal Accidents Act, 1855, was to prove negligence of defendant---Such principle, in some cases, could cause hardship to plaintiff because true cause of accident lay solely within knowledge of defendant who caused the accident---Such hardship could be avoided to a considerable extent by maxim "res ipsa loquitur" which meant that `the things speak for themselves'.

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

----S. 1---Death caused by accident due to broken electricity wire---Suit for recovery of damages---Defendants having denied the alleged occurrence, it was for the plaintiff to prove negligence of defendants to put responsibility of death of deceased upon defendants, but plaintiffs neither had produced Death Certificate of deceased nor its post-mortem report---Report of death of deceased though was lodged, but neither informant was produced nor record of Police Statements was summoned---Plaintiffs, in circumstances, were not able to discharge initial onus of proving that death of deceased was the result of electric shock caused by electric wire lying broken---Had it been proved, the burden would have been shifted to defendants who were duty bound to make repairs of broken electric wire and for maintenance of electric wire installed---Plaintiffs having failed to prove negligence of defendants in causing death of deceased, suit for damages, was rightly dismissed by Trial Court.

Iftikhar Hussain and another v. Karachi Electric Supply Corporation Ltd. PLD 1959 Kar. 550 and Pakistan Steel Mills Corporation and others v. Malik Abdul Habib and another 1993 SCMR 848 ref.

Zahid Saleem and Muhammad Yaqub Chatha for Appellants.

Ch. Ghulam Hassan Gulshan for Respondents.

Date of hearing: 10th April, 2002.

2003 C L C 890

[Lahore]

Before Jawwad S. Khawaja, J

ASHIQ HUSSAIN and others---Petitioners

Versus

MUHAMMAD YASIN---Respondent

Civil Revision No.379 of 1992, decided on 14th November. 2001.

Civil Procedure Code (V of 1908)---

----O. XXVI, R. 9---Appointment of Local Commission---Dispute between parties was with regard to a wall which was dividing respective shops of the parties---Claim of respondent was that the wall was owned exclusively by him and was entirely situated within area owned by him--­Petitioners also, claimed ownership of the said wall---Local Commission appointed with consent of parties, after spot inspection submitted his report which was prepared by him on basis of site inspection in presence of parties who did not raise any objection to report of Local Commission---Courts, on the basis of report of Local Commission, accepted claim of respondent with regard to wall in dispute---Petitioners subsequently had contended that report of Local Commission was not clear and Court should have proceeded to record evidence to give its decision separately on each of the issues framed by the Court---Validity---Contention was repelled, because parties had themselves agreed to the appointment of a Local Commission and had also agreed that they would be bound by report submitted by the Local Commission---Even after submission of report, parties did not raise any objection to the same---Not necessary for the Trial Court to record evidence or to give findings on issues framed by it---Concurrent judgments and decrees rendered by Courts below on basis of report of Local Commission, were not open to exception.

Khan Zahid Hussain Khan for Petitioners.

M. Farooq Qureshi Chishti for Respondent.

Date of hearing: 14th November, 2001.

2003 C L C 897

[Lahore]

Before Syed Jamshed Ali, J

SHAMSHER and others---Petitioners

Versus

MUHAMMAD DIN and others---Respondents

Civil Revision No.1550 of 1991, decided on 4th April, 2002.

Islamic Law---

----Inheritance---Original owner of property in dispute died unmarried and his mother after death of her husband/father of deceased owner, married with brother of her deceased husband/uncle of the original owner---Mutation of inheritance was attested in favour of the mother, real sister and five uterine brothers and sisters of deceased original owner---Mother of deceased owner was thus entitled to 1/6th share, his real sister was entitled to 1/2 share while his uterine brothers and sisters were collectively entitled to 1/3rd as sharers---Entire estate of deceased owner, in circumstances, was devolved on mother, real sister and uterine brothers and sisters of deceased as sharers---Since nothing was left after satisfying claim of sharers, residuaries would .not be entitled to inherit estate of deceased.

Muhammad Farooq Qureshi Chishti for Petitioners.

Zahid Hussain Khan for Respondents.

Date of hearing: 4th April, 2002.

2003 C L C 899

[Lahore]

Before Mian Saqib Nisar and Muhammad Sair Ali, JJ

KHURAM BASHIR---Appellant

Versus

Chaudhry MUHAMMAD KHALID---Respondent

Regular First Appeals Nos.80 of 1995 and 288 of 2002, decided on 21st May, 2002.

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

----O. VII, R. 2---Contract Act (IX of 1872), S.2(h)---Suit for recovery of amount on basis of contract---Suit on basis of an oral agreement to construct a shop for defendant at agreed rate---Plaintiff after date of completion of shop and after submission of final bill had received the amount through three cheques---Plaintiff, in circumstances, had received total amount from defendant in full and final settlement of his claim--­Trial Court had rightly dismissed the suit.

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

----O. VII, R. 2 & O. VIII, Rr. 6, 7---Contract Act (IX of 1872), S.2(h)---Suit for recovery of amount on basis of contract---Set-off, claim for---Claim of set-off raised by defendant against plaintiff was an afterthought and same was pleaded by defendant as a counterblast in his written statement---Defendant had tried to support his claim in respect of set-off on basis of two entries in the bill given by plaintiff to defendant for the work done by him---Entire bill had been written in black ink with one flow and by one hand, while the two entries in the said bill were with black ink and were entirely different and appeared to have been incorporated subsequent to submission of the bill-­-Defendant at no stage prior to date of submission of his written statement had raised claim of set-off against plaintiff---Defendant, in circumstances had failed to support his claim of set-off through any cogent evidence.

Muhammad Saleem Shahnazi for Appellant.

Ch. Muhammad Sadiq for Respondent.

Date of hearing: 21st May, 2002.

2003 C L C 905

[Lahore]

Before Mian Hamid Farooq, J

YOUSAF MASIH---Petitioner

Versus

Ch. ABDUL HAMEED HAJI---Respondent

Civil Revision No. 1554 and 1634 of 1990, decided on 17th July, 2001.

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

----O. VII, R. 2---Arbitration Act (X of 1940), S.20 --- Suit for recovery of amount---Referring dispute to referee---Suit was decreed on statement of a person who purported to be a referee and got recorded his statement before Court to the effect that demand of plaintiffs for recovery of amount was correct---Judgment and decree passed by Trial Court were affirmed by Appellate Court---Nothing was on record to show that either of the patties had shown their intention to refer the dispute to said person and no documentary evidence was on record indicating that parties in fact had referred dispute to that person who had purportedly acted as a­ referee---Orders of both the Courts did not manifest any such agreement between the parties whereby they consented to refer their dispute to arbitrator or even to referee---When a matter/dispute was to be decided by a referee, it presupposed that parties with their mutual consent/ agreement had referred their specified dispute to a person who could be named either as an arbitrator or a referee, but that fact was lacking in the case---Basic ingredient of consensus of the parties to the suit to refer their dispute/subject-matter of suit to be resolved by a person named as referee, being lacking, proceedings before Court were non-existent under the law---Concurrent judgments of Courts below passed illegally and with material irregularities, were set aside by High Court in exercise of its revisional jurisdiction.

Muhammad Akbar Cheema for Petitioner.

Zahid Hussain Khan for Respondent.

Date of hearing: 17th July, 2001.

2003 C L C 917

[Lahore]

Before Mian Hamid Farooq, J

Ch. SHAHBAZ BABAR---Appellant

Versus

REHMANA MIRZA---Respondent

Second Appeal from Order No.62 of 2001, heard on 14th January, 2003.

(a) New plea---

---- Plea not raised and made ground of defence before Trial Court cannot be allowed to be raised in appeal.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1989)----

----Ss. 13(3)(ii)(a) & 15---Bona fide personal need of landlady for her husband---No bar on the landlady for filing ejectment application on ground that premises was required for the use and occupation of her husband as he was doing business in a rented premises---Word "husband" though had not been used in S.13(3)(ii)(a) of West Pakistan Urban Rent Restriction Ordinance, 1959, but need of the husband would include in the words "his own use" and a landlady could legitimately file an ejectment application in respect of non-residential building, if she was able to prove that she required the same in good faith for the use of her husband---Both Courts below had concurrently found on the basis of evidence on record that landlady required the shop bona fide for personal need of her husband and that she wanted to start business in the premises through her husband to earn livelihood of her family and that husband of landlady had been proved to be the only earning male member Concurrent findings of fact of both Courts below based .on proper appreciation of evidence on record, could not be interfered with by High Court in second appeal.

Muhammad Younus v. Iqbal Begum PLD 1980 Lah, 577: Muhammad Umar and others v. Dr. Amina Ashraf 1982 CLC 410; Ghulam Mohyddin v. Mst. Nazir Bibi 1983 SCMR 715: Masood Ahmad v. Mst. Anwar Begum 1983 CLC 1139; Abdul Rashid v. Mst. Adila Musarrat 1982 CLC 149: K.H. Hiramnek v. Shafqat Aslam and others 1997 MLD 1800; Haji Gul Baran and another v. Mst. Rehana Mushtaq 2001 YLR 2451; Adamali Hasanali v. Mst. Rubah Bai 1965 (W.P.) Kar. 408 and Ghulam Mohyuddin v. Mst. Nazir Bibi 1983 SCMR 715 ref.

Rass Tariq Chaudhary for Appellant.

Pervaiz Inayat Malik for Respondent.

Date of hearing: 14th January, 2003.

2003 C L C 923

[Lahore]

Before Abdul Shakoor Paracha, J

KANIZ FATIMA and another----Appellants

Versus

Sh. MUHAMMAD SOHAIL and 7 others---Respondents

Regular Second Appeal No.74 of 1999 and Civil Revision No.987 of 1996, heard on 8th May, 2002.

(a) Contract Act (IX of 1872)-

-----S. 55---Specifc Relief Act (I of 1877) S.12---Suit for specific performance of agreement to sell immovable property---Time of the essence of the contract---Period fixed in agreement for registration of sale-deed was extended on two occasions with mutual consent of parties---Refusal of defendant thereafter to complete sale on the ground that agreement had come to an end as time was of the essence of the contract---Suit for specific performance of agreement was decreed by Trial Court and upheld by Appellate Court---Validity---Time in view of such facts was not of the essence of the contract---Normally in sale of immovable property, time was not of the essence of the contract----Courts below had not committed any illegality or irregularity while decreeing suit of plaintiff---High Court dismissed second appeal filed by defendants.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 rel.

(b) Contract Act (IX of 1872

----S. 55---Time of essence of the contract---Sale of immovable property­--Time ordinarily in such transaction not considered as being the essence of the contract---Mere mention of time in contract for its performance would not mean that time was of the essence of the contract---Intention of parties in such behalf could be gathered from terms of contract and circumstances of case.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 fol.

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

----S. 115---Revision---Concurrent findings of fact---Could not be interfered in revisional jurisdiction of High Court.

Ch. Ghulam Hussain for Appellant.

Khawaja Saeed-uz-Zafar for Respondents.

Date of hearing: 8th May, 2002.

2003 C L C 936

[Lahore]

Before Mian Saqib Nisar, J

GHULAM MUHAMMAD and others---Petitioners

Versus

ALI ASGHAR and others---Respondents

Civil Revision No. 1526 of 1990, heard on 18th October, 2002.

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 4---West Pakistan Rehabilitation and Settlement Scheme, 1956, paras. 4-A and 31, cl.(ix)---Punjab Tenancy Act (XVI of 1887), S.114--­Civil Procedure Code (V of 1908), S.9 and O.II, R.2---Specific Relief Act (I of 1877), S.42---Conferment of ownership rights on petitioners' predecessor in year 1952 in respect of land, over which he was earlier occupancy tenant under non-Muslim landlord---Respondent got allotment of such land in year 1962 as claimant displaced persons, when same was not part of compensation pool and could not be treated as evacuee--­Petitioners' predecessor filed suit against respondents confining his claim only to 1/6th share in produce, but did not agitate against allotment--­Such suit was withdrawn later on with permission to file fresh suit--­Petitioners challenged original allotment in favour of respondents by filing suit for declaration in year 1980---Trial Court dismissed the suit, which judgment was upheld by the Appellate Court---Validity---Allotment in favour of respondents was invalid---Petitioners having full knowledge about such allotment had not challenged same by asserting their ownership right at appropriate time before proper forum under evacuee laws---Petitioners had not filed fresh suit till 1980---Petitioners were not permitted to sleep over their right and to choose their own time and form for challenging allotment on the ground that same was void and thus no limitation would run against them---Suit was barred by time---Order II. R.2. C.P.C. would also be applicable to the present case precluding petitioners to claim relief relinquished voluntarily by their predecessor--­Where jurisdiction of Civil Court was expressly barred under special law, after repeal of such law civil Court would have no jurisdiction, even if orders were without jurisdiction---Judgments of Courts below was not suffering from any error warranting interference in revisional jurisdiction---High Court dismissed revision petition in circumstances.

PLD 1995 Lah. 462; 2000 CLC 1651: PLD 1974 SC 193; Civil Appeals Nos.323 to 326 of 1983; PLD 1993 SC 147 and 2001 SCMR 1062 ref.

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

----S. 115---Revision---Pure question of law---Plea not set up in defence by defendant---Duty of Court to apply correct law and decide lis between parties.

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

----S. 9---Jurisdiction of Civil Court---Scope--Civil Court had jurisdiction to set aside orders passed without jurisdiction or lawful authority and mala fide in nature---Where jurisdiction of Civil Court was expressly barred under special law, then after repeal of such law, Civil Court would have no jurisdiction, even if the orders were without jurisdiction.

A.R. Shaukat for Petitioners.

Ch. Asghar Ali for Respondents.

Date of hearing: 18th October, 2002.

2003 C L C 941

[Lahore]

Before Mian Hamid Farooq, J

SALEEM AHMAD---Petitioner

Versus

TAHIR HUSSAIN ---Respondent

Civil Revisions Nos.2559 to 2562 of 2001, decided on 25th January, 2002.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Qanun-e-Shahadat (10 of 1984), Art.117---Suit for recovery of borrowed money---Burden of proof---Plaintiff had claimed that defendant had admitted suit amounts through acknowledgment executed in presence of witnesses- --Defendant denied execution of said acknowledgment and alleged that it was a forged one---Trial Court decreed all suits and Appellate Court despite coming to the conclusion that alleged acknowledgment had not been duly proved, maintained judgment and decree of Trial Court---Validity---Acknowledgment relied upon by plaintiff which was the only basis for claiming different amounts, was specifically denied by defendant---Plaintiff after said denial, in order to discharge onus, was under obligation to prove execution of said document by producing cogent evidence, but he had failed to prove the same by producing marginal witnesses---Appellate Court had given definite findings against plaintiff to the effect that alleged acknowledgment had not been proved by the plaintiff by producing marginal witnesses,- but plaintiff had neither tiled appeal against said findings nor had filed cross-objections---Both said remedies available to plaintiff having not been availed by him, he could not challenge findings of Appellate Court in revision filed by defendant against concurrent judgment and decree of the Courts---Appellate Court though initially proceeded in the right direction when it found that acknowledgment was not proved in accordance with law, but in latter portion of its judgment fell into legal error while dismissing the appeals filed by defendant completely for getting that in view of non-proving acknowledgment suits filed by plaintiff were' not maintainable and even were barred by time---In view of said contradictory findings, both judgments and decrees of Courts could not be maintained--­High Court in exercise of its revisional jurisdiction, set aside the concurrent judgments and decrees.

Malik Mumtaz Ahmad for Petitioner.

S. Ijaz Ahmad for Respondent.

Date of hearing: 25th January, 2002.

2003 C L C 945

[Lahore]

Before M.A. Shahid Siddiqui, J

ADIL through Legal Heirs and others---Appellants

Versus

ASHIQ HUSSAIN and others---Respondents

Regular Second Appeal No.53 of 1991, decided on 10th June, 2002.

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

----Preamble---Enactment of Civil Procedure Code, 1908---Object and scope---Provisions of Civil Procedure Code, 1908, do not relate to substantive rights of the individuals---To consolidate the procedure of the Civil Courts, the Civil Procedure Code, 1908, has been enacted--­Procedural laws prescribe method of enforcing rights and it is simply a machinery to achieve an end---Court has to administer the machinery for enforcing rights and duties recognized by substantive law---Procedural law is a means to an end and not an end in itself.

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

----O. XXXII---Suit by or against minors and persons of unsound mind--­Object and purpose---Departure from the procedure prescribed under O.XXXII, C.P.C.---Object of the rules is to ensure due and proper representation on behalf of a minor defendant, if it affects the interest of the minor adversely, any departure from such rules would not be condoned by the Courts but if no prejudice is caused to the minor, then the non-compliance of the rules would be inconsequential.

(c) Punjab Pre-emption Act (I of 1913)---

----S. 21---Civil Procedure Code (V of 1908), O.XXXII, Rr.1 & 4--­Pre-emption suit against minors---Failure to appoint guardian ad litem--­ Pre-emptors impleaded minor defendant through his father as guardian who was otherwise his natural guardian---Father of the minor defendant contested the suit, filed written statement and produced evidence not only on his behalf but also on behalf of his minor son---Suit was decreed in favour of the pre-emptors and the judgment and decree passed by the Trial Court was maintained by the Appellate Court---Contention of the defendants was that as no guardian ad litem was appointed by the Trial Court, therefore, the minor was not properly represented in the proceedings---Validity---Plaintiffs not only sued the minor through his father but also made application for the appointment of the guardian of minor---Trial Court was obliged under O.XXXII, R.1, C.P.C. to appoint a proper person to be guardian of minor and under O.XXXII, R.4, C.P.C. the Court could ask the plaintiff to furnish such a list of relatives of the minor who were capable of acting as guardian for minor defendant and in default of compliance the Court had discretion to reject the plaint---When no prejudice was shown to have been caused to the minor, omission on the part of Trial Court to formally appoint a guardian ad litem was not fatal to the case of pre-emptors ---High Court declined to interfere with the judgment and decree passed by the First Appellate Court.

PLD 1978 SC (AJ&K) 40; PLD 1986 Lah. 373 and AIR 1927 Lah.861 rel.

Shaukat Ali Mehr for Appellant.

Khizar Abbas for Respondent.

Date of hearing: 23rd April, 2002.

2003 C L C 955

[Lahore]

Before Ch. Iftikhar Hussain and Raja Muhammad Sabir, JJ

Messrs COLONY TEXTILE MILLS LTD., MULTAN through Factory

Manager‑‑‑Appellant

Versus

CHIEF EXECUTIVE, MULTAN ELECTRICITY POWER COMPANY LTD.

(MEPCO), MULTAN and 2 others‑‑‑Respondents

Intra‑Court Appeal No.83 of 2002, decided on 10th July, 2002.

Civil Procedure Code (V of 1908)‑‑‑‑

‑‑‑‑O. VI, R.17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Amendment in pleadings‑‑‑Pursuant to order of Supreme Court proceedings against the petitioner were pending adjudication with the Authority for a considerable long period and petitioner was associated in the said proceedings and submitted written statement and case was decided by the Authority‑‑‑Petitioner, on the same date when the case was decided by the Authority, instituted Constitutional petition seeking therein a direction for restraining the Authority from proceeding with the said case and by an amended Constitutional petition order passed by the Authority was also challenged‑‑‑Validity‑‑‑Petitioner could challenge the order passed by the Authority only through independent proceedings as prayer in the Constitutional petition and application for amendment, were contrary to each other and changing the nature of proceedings was not permissible under law‑‑‑Amendment in pleadings was only permissible when same did not change the character of original petition.

Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 and A.R. Niazi, Advocate and others v. Pakistan and others PLD 1968 SC 119 ref.

Raja Muhammad Akram and Ms. Aniqa Mughis Sheikh for Appellant.

Muhammad Qasim Khan, A.A.‑G. for Respondents.

Date of hearing: 9th July, 2002.

2003 C L C 962

[Lahore]

Before Pervez Ahmad, J

Mst. MASOOMA BEGUM -and 9 others---Petitioners

Versus

Mst. RIAZ FATIMA and 11 others---Respondents

Civil Revision No.639 of 1996, heard on 4th October, 2002

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

----S. 8---Suit for possession---Encroachment, proof of---Plaintiffs had alleged that defendant was an encroacher and was in illegal possession of suit property and had prayed that decree for possession of property be passed directing defendant .to deliver possession of property to them and also to remove superstructure raised thereon--­Trial Court after recording evidence of the parties and hearing arguments of parties dismissed the suit, but Appellate Court set aside judgment passed by Trial Court---Earlier, suit in respect of same land was compromised between the predecessors of the parties---Local Commissioner who dealt with . the matter of demarcation of suit property had reported that no encroachment had been made . by defendant over suit property---Even report of Tehsildar available on record had given no finding of any encroachment allegedly made by the defendant---Property claimed by plaintiff and., the one purchased by defendant were .situated in different khasra numbers---Trial Court in absence of any, cogent evidence in support of plea of plaintiffs, had rightly dismissed their suit while the Appellate Court had misread evidence on record---Judgment of Appellate Court suffering from illegality and material irregularity, was liable to be set aside and that of Trial Court was to be maintained---High Court set aside the judgment and decree passed by Appellate Court in circumstances.

Taqi Ahmad Khan for Petitioners.

Muhammad Tufail for Respondents

Date of hearing: 4th October, 2002.

2003 C L C 966

[Lahore]

Before M.A. Shahid Siddiqui, J

GHULAM QADIR and 8 others---Petitioners

Versus

MUHAMMAD SAEED and 3 others---Respondents

Civil Revision No. 1957-D of 1996; decided on 12th August, 2GU2

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

---S. 42---Transfer of Property Act (IV of 1882), Ss.58 & 60--­Limitation .Act (IX of' 1908), Art. 148---Suit - for declaration--­Redemption of mortgage---Limitation---Starting point of---Suit-land was mortgaged by, predecessor-in-interest of defendants through registered deed in 1926 in favour of mortgage---Legal heirs of deceased mortgage transferred their rights by way of sale in year 1961 through mutation---Suit for declaration was filed by plaintiffs in 1989 claiming to have become full owners after expiry of statutory period of 60 year$ from date of first registered mortgage in 1926--­Period of limitation of 60 years for redemption of mortgage would be reckoned from 1961 when plaintiffs occupied land as mortgages in second mortgage and not from 1926 which- was ' the year of first registered mortgage.

Muhammad Azam Khan and 18 others v: Mst. Bani Begum 2000 MLD 612; Muhammad Akram and others v. Arsalla Khan. 1997 MLD 138; Faqir Gul and others v. Abdul Rehman and others 1999 CLC 346; Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063; PLD 1992 SC 225; 1993 SCMR 92; PLD 1966 SC 267; PLD 1983 Pesh. 58 and Ismail and 22 others v. Rehmat Ali and 15 others 1983 SCMR 92 ref.

Muhammad Arif Raja for Petitioners.

Ch. Muhammad Rafiq Warraich for Respondents

Date of hearing: 12th August, 2002

2003 C L C 972

[Lahore]

Before Tanvir Bashir Ansari, J

EVACUEE TRUST PROPERTY BOARD through Secretary and another---Petitioners

Versus

LIAQAT ALI and another---Respondents

Civil Revision No. 2041 of 1991, heard on 31st July, 2002.

Evacuee Trust Properties (Management and Disposal) Act (X111 of 1975)---

----Ss. 8, 10 & 17---Settlement Scheme No.VI---Transfer of Property. Act (IV of 1882), S.52---Transfer of evacuee property ---Lis pendens, principle of---Applicability---Property which in fact was Evacuee Trust Property was transferred by Settlement Authority under Settlement Scheme No.VI---Deputy Administrator, Evacuee Trust Property under S.8 of Evacuee- Trust. Properties (Management and Disposal) Act, 1975, challenged the order transferring said property---Chairman, Evacuee Trust Property Board despite holding the status of the property as Evacuee Trust Property, , validated P T.D. issued in favour of the transferee of property---Two private persons filed revision against order of the Chairman, Evacuee Trust Property Board before Secretary, Ministry of Religious Affairs, which, was considered as suo motu revision and was accepted, holding that P.T.D. issued in 1974 after the target date which was 30-6-1968, could not be validated under S.10 of Evacuee Trust Properties (Management and Disposal) Act, 1975 and order of Chairman, Evacuee Trust Property Board was set aside ---Vendee of property in dispute which had purchased' property during pendency of revision before Secretary, Ministry of Religious Affairs, filed suit for declaration in which he had claimed that he was bona fide purchaser for value without notice of such - dispute respecting the property and that orders passed in revision were illegal and ineffective upon his rights---Validity---Property in dispute having been purchased by plaintiff during pendency of proceedings in revision, plaintiff on principle of lis pendens was bound by orders passed in .revision against his vendor---Plaintiff could not claim better title in property than his vendor/transferor---Revision petition was filed by two individuals before Secretary, Ministry' of Religious Affairs which would tantamount to setting in motion suo motu revisional jurisdiction of Secretary---Mere fact that revisional jurisdiction was exercised upon intimation of two individuals would not detract nature of suo motu jurisdiction of revisional Court---Both forums having not decided controversy on merits, case was remanded to Trial Court for decision on merits.

Ch. Munir Ahmad for Petitioners.

C.M. Latif Rawn for Respondents.

Date of hearing: 31st July, 2002.

2003 C L C 977

[Lahore]

Before Syed Jamshed Ali,.J

Mst. RAZIA BEGUM and others---Petitioners

Versus

ZAHOOR AHMAD and others---Respondents

Civil Revision No. 1304-D of 1992, decided on 30th May, 2002.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)------

----S. 2-A [as inserted by West Pakistan Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance (XIII of 1983)]--­Original owner owned land in two Revenue Estates and after his death in 1947 mutation of inheritance in respect of one estate was attested in favour of two widows, one son and four daughters.of the deceased while mutation of inheritance in the second estate was attested in 1958 exclusively in favour of the only son of deceased under Custom---One of widows of the deceased alongwith others challenged the two mutations of inheritance by filing a suit--­Mutation in one revenue estate was challenged alleging that other lady (wife) and her two daughters had wrongly been allowed to inherit the shares in the said estate of deceased as they had no relationship whatsoever with the deceased---Mutation in respect of second revenue estate was challenged on the ground that the family of deceased being governed by personal law and not by Custom mutation exclusively in favour of the son of deceased was illegal--­Validity---Plaintiffs who alleged in the suit that other widow and her two daughters were not entitled to inherit estate of deceased, did not impiead the said three ladies in the suit despite they were necessary parties---Without impleading said three ladies, relief claimed by plaintiffs qua mutation in respect of first estate, could not be granted-- -Suit filed by plaintiffs to the extent of mutation in respect of first estate was dismissed---Mutation in .respect of second estate was attested at the instance of son of deceased himself---Neither any pedigree-table was drawn on the said mutation nor question whether family of deceased was governed by custom, was considered by the Revenue Officer---Son in whose favour mutation in respect of second estate was attested under custom, had never agitated against mutation in respect of first estate which was attested under personal law---Son thus could not claim that mutation in his favour with regard to second estate was rightly attested under custom---Situation would be anomalous and unacceptable if in case of one revenue estate inheritance of deceased was settled in accordance with personal law which was accepted by defendant while in other revenue estate his claim that it should be settled according to custom be accepted---Suit of plaintiffs was decreed to the extent of mutation in respect of first estate.

Ch. Zafar Iqbal for Petitioners..

Sh. Abdul Aziz for Respondents.

Date of hearing: 30th May, 2002.

2003 C L C 984

[Lahore]

Before Jawwad S. Khawaja, J

BABU---Appellant

Versus

GHULAM RASOOL---Respondent

Regular Second Appeal No.96 of 2000, heard on 5th June, 2002.

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

----S. 12---Suit for specific performance of agreement of sale--­Plaintiff had claimed that an agreement of sale of suit-land was arrived at between him and defendant owner of land---Plaintiff had contended that defendant had received some amount as earnest money in remaining amount was to be paid on registration of sale-deed in his favour---Defendant had not expressly denied execution of agreement, but had simply stated that same was not authentic one--­Plaintiff had proved execution of agreement of sale in his favour by producing scribe of agreement and one of marginal witness of agreement---Second marginal witness could not be produced as he was stated to have died---Defendant had not expressly denied his thumb-mark on the agreement of sale, but had made vague assertions that a fraud had been committed against him---Defendant had not given any particular aspect of alleged fraud---Execution of agreement of sale had fully been proved---Courts below, in circumstances, had rightly decreed the suit concurrently and said findings could not be interfered with.

Rao Munawar Khan and M. Ibrahim Khalil for Appellant.

Mian Muhamma Nawaz for Respondent.

Date of hearing: 5th June, 2002.

2003 C L C 988

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD ASLAM KHAN, ADVOCATE---Appellant

versus

SALAH-UD-DIN and 4 others---Respondents

Regular Second Appeals Nos.37 and 39 of 2002, decided on 30th July, 2002.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Ex parte proceedings---Setting aside of, application for---Dismissal of application---Trial Court dismissed application filed by defendants for setting aside ex parte proceedings on the ground that they had failed to pay costs imposed upon them--­First appeal filed against order of Trial Court was also dismissed by Appellate Court---Evidence on record had established that amount of costs had been paid by the defendants in compliance with order of Appellate Court---Plaintiffs had also conceded that order dismissing application for setting aside ex parte proceeding was passed by Trial Court either under a misapprehension of proceedings or misconception of order itself-7- Parties, in circumstances, had fairly and candidly requested for setting aside orders of Trial Court and Appellate Court---Orders of Courts below were set aside in second appeal and case was remanded to Trial Court for fresh decision of application for setting aside ex parte order.

Muhammad Iqbal for Appellant (in Regular Second Appeal No.37 of 2002).

Ghulam Nabi Awan for Respondents Nos.l and 2 (in Regular Second Appeal No.37 of 2002).

Jehangir A. Jhoja for Appellant (in Regular Second Appeal No.39 of 2002) for Respondent No.3 (in Regular Second Appeal No.37 of 2002).

Date of hearing: 30th July, 2002.

2003 C L C 991

[Lahore]

Before Mian Hamid Farooq and Pervez Ahmad, JJ

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Defence, Rawalpindi and 2 others---Appellants

Versus

Sheikh NAWAB DIN & SONS---Respondents

Regular First Appeal No. 1.43 of 1995, decided on 2%h July, 2002.

(a) Contract Act (IX of 1872)--------

--------S.7---Civil Procedure Code (V of 1908), O.VII, R.2--- Suit for recovery of amount---Acceptance of proposal---Proof of acceptance---Contract earlier executed between the parties for supply of goods having been completed by plaintiffs firm, defendants again sent message to the plaintiffs to supply more goods on reduced rate--­Plaintiffs in response to message of defendants, showed -their inability to reduce rate and through their letter proposed to supply goods on previous rates and further requested defendants to convey their willingness regarding their counter-proposal of previous rates---Said letter of plaintiffs was never replied by the defendants and instead sent two copies of draft contracts for signatures of plaintiffs for finalization of contract, but plaintiffs returned the said contracts without signing the same with assertion that matter had already stood closed---Despite the fact that no written agreement was entered between the parties, defendants, through their letter intimated plaintiffs that as they had failed to fulfil their contractual obligation, contract for supply of more goods had been cancelled and amount of Rs.8,69,000 incurred in re-purchasing said goods from other firm was to be borne by plaintiffs and said amount was deducted by defendants from bills of the plaintiffs---Validity---Offer made by defendants to supply more goods on reduced rate having never been accepted by plaintiffs no valid contract ever came into existence between the parties---Question of cancellation of contract as claimed by defendants would not at all 'arise---According to S.7 of Contract Act, 1872 in order to convert a proposal into a promise, acceptance should be absolute and unqualified---Letter written by plaintiffs in response .to message of defendants with regard to supply of goods on reduced rate, did not constitute an absolute- and unequivocal acceptance of proposal made by defendants---Defendants alleging breach of contract by plaintiffs and wanting to enforce claim of damages/compensation had to prove existence of a concluded contract, but defendants had failed to prove same---Defendants, in circumstances, were not entitled to recover suit amount from bill of plaintiffs---Suit for recovery of amount deducted from bill of plaintiffs; was rightly decreed by Trial Court---Speaking judgment passed by Trial Court backed by reasons and. evidence on record could not be interfered with in appeal.

(b) Administration of justice-----------

----No body could be a judge of its own cause.

Sher Zaman Khan, Dy. A.-G. for Appellants

Ch. Abdul Rab and Abdul Hameed Cheema for Respondents.

Date of hearing: 10th July, 2002.

2003 C L C 1001

[Lahore]

Before Tanvir Bashir Ansari, J

JUNAID QURESHI---Petitioner

Versus

JUDGE, FAMILY COURT---Respondent

Writ Petition No. 169 of 2003, decided on 8th April, 2003.

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

----S. 10---Reconciliation proceedings--- Held, as to how and in what manner the conciliation proceedings were to be conducted by the Family Court was a matter within the exclusive jurisdiction of the said Special Tribunal.

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

----S. 10(4) [as amended by Family Courts (Amendment) Ordinance (LV of 2002)]---Constitution of Pakistan (1973), Arts. 199, 2A, 227 & 203-D---Constitutional petition ---Repugnancy to Injunctions of Islam---Section 10(4), proviso [as amended] of the West Pakistan Family Courts Act, 1964 could not be established to be. repugnant to Injunctions of Islam---Federal Shariat Court under Art. 20-D, Constitution of Pakistan (1973) may either of its own motion or on the petition of a citizen of Pakistan or the Federal Government examine and decide the question whether or not any law or provision of law was repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah---Even if there was any force in the contention about the repugnancy of S. 10(4) [as amended], the appropriate remedy lay before the Federal Shariat Court.

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

----S. 10(4) [as amended by Family Courts (Amendment) Ordinance (LV of 2002)]---Provision of S. 10(4) of the Act [as amended] being a procedural law was retrospective in nature and procedure provided in the amended section 10(4) of the Act would be applicable to the suit for dissolution of marriage filed before the introduction of the amendment in S.10(4).

M. Kowkab Jqbal for Petitioner.

Abdul Rehman Siddiqui for Respondent

Date of hearing: 8th April, 2003.

2003 C L C 1006

[Lahore]

Before Muhammad.Sayeed Akhtar, J

SIKANDAR HAYAT and 3 others---Petitioners

Versus

AHMED SHER and 5 others---Respondents

Civil Revision No. 941-D of 1995, heard on 25th February, 2003.

(a) Islamic Law---

----Gift---Property gifted by husband to the wife was a share to Khata--­Delivery of possession---Proof---Strict proof of delivery of possession in favour of wife was not required.

Waheed Gul v. Mst. Saida Jan 1998 MLD 3 ref.

(b) Islamic Law---

---Gift---Delivery of possession---Where the shares given to the donees be equal or unequal, if the donor had parted with complete possession in favour of the donees, the donees became the transferee of the property and the gift was complete.

Noor Muhammad Khan and 3 others v: Habibullah Khan and 27 others PLD 1994 SC 650 ref.

(c) Islamic Law---

---Gift---Mushaa, principle of---Applicability.

The principle of Mushaa has been apptied liberally more suited to practicability, justice and equity. Its rigidity has been relaxed. The strict principle of Mushaa could be applied only to gifts which are vague, incomplete or uncertain. According to the Muslim Law though there is difference of opinion between the doctors as to the validity of a gift to two persons, such a gift is not void, and possession cleats the defect arising from the shares of the donees not having been defined.

Noor Muhammad Khan and 3 others v. Habibullah Khan and 27 others PLD 1994 SC 650 ref.

(d) Islamic Law---

----Gift---Delivery of possession---Donor having admitted in his lifetime about the gift in favour of the donees and having done all he could do to perfect the gift by placing the donees in a position to take possession of the property---Gift stood proved in favour of donees in circumstances.

Saida v. Pinnu and another PLD 1979 SC (AJ&K).245 and Munawar Hussain Shah and 2 others v. Mst. Bilora Bi and 3 others PLD 1978 SC (AJ&K) 33 ref.

(e) Islamic Law---

----Gift---Delivery of possession---Validity---Locus standi to challenge--­Donor or 'any heir claiming through him (and not against him) has the locus standi to challenge the gift deed for want of delivery of possession but when a presumptive heir challenges the gift on the basis of non­delivery of possession in exercise of his independent right, he could have . no locus standi to challenge the. gift on that score as such challenge is not through the djpnor but in spite of and against him---Where the sons of the donor challenged the gift during the lifetime of the donor, their father, and were not claiming through the donor but against him, they had no locus standi to- file suit against the donor, their father, during his lifetime.

Muhammad Sarwar and 6 others v. Muhammad Iqbal and 2 others 1997 MLD 130 ref.

Ch. Abdur Rashid Gujjar for Petitioners.

Maqbool Elahi Malik and Zahid Farani Sheikh for Respondents.

Date of hearing: 25th February, 2003.

2003 C L C 1011

[Lahore]

Before Muhammad Akhtar Shabbir, J

Syed SAJJAD HUSSAIN SHAH---Appellant

Versus

Messrs FEDERATION OF EMPLOYEES COOPERATIVE HOUSING SOCIETIES LTD. through General Secretary---Respondent

First Appeal from Order No. 57 of 2002, heard on 20th August, 2002.

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

----O. V, Rr. 9, 10, 10-A, 16, 20 & O.IX, R.13---Setting aside ex parte decree---Service of summons---Trial Court without waiting for report of process-server on summons issued to defendant in ordinary way, proceeded mechanically, assuming that registered envelope had been received by defendant---Trial Court without being satisfied by assigning reasons that defendant had been served under postal certificate and without applying mind whether it was a proper and valid service upon defendant, mechanically proceeded to pass order for taking ex parte proceedings against defendant---Court had not made any effort nor satisfied itself while proceeding against defendant and had also failed to adopt service against defendant through substituted mode of service as provided under R.20 of O.V, C.P.C---Decree for recovery of amount as damages/compensation had been passed in favour of plaintiff without providing an opportunity of being heard to defendant and he had been condemned unheard in violation of principles of natural justice---Law was not intended to ' thwart adjudication of a lis on mere technicalities of procedure but would favour decision of cases on merits rather stifling the matter on fetish pleas---Legal aspect of case having not been adverted to by Courts below, High Court set aside ex parte proceedings, judgment and decree passed against defendant in circumstances.

Zuifiqar v. Muhammad Jan 2000 CLC 932; U.B.L. v. Messrs S.G. Rauf & Company PLD 1990 Kar. 312 and Pervaiz M. Khan v. Mrs. A.H. Kishwar and another 1991 CLC Note 296 at p.226 ref.

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

----O. V, Rr. 9, 10, 10-A .& 0. IX, R. 13---Service through registered post---Ex part proceedings, setting aside of---Object of service through registered post was that proceeding in suit might continue and same might not be defeated merely because defendant could not be served due to his avoiding process of Court---Notice of proceedings was a basic right of party and ex parte proceeding could not be initiated against him unless Court would come to conclusion that party was served in a valid manner or that it had avoided service.

WAPDA v. Ghulam Hussain 2000 CLC 530 ref.

(c) Administration of justice-----

Law does not intend to thwart adjudication of a 4is on mere technicalities of procedure---Law favours decision of cases on merits rather stifling the matter on fetish pleas.

Noor Muhammad Niazi for Appellant.

Nazir Ahmad Bhutta for Respondent

Date of hearing: 24th August, 2002.

2003 C L C 1018

[Lahore]

Before Ch. Ijaz Ahmad, J

KHALID HUSSAIN ---Petitioner

Versus

MUHAMMAD SABIR JAVED ---Respondent

Civil Revision No. 1062 of 1998, heard on 7th October, 2002.

Arbitration Act (X of 1940) ---

----Ss. 14. 17, 30 & 33---Specific Relief Act (I of 1877), S.42---Suit for declaration---Arbitration proceedings---Objections to award---Dismissal of suit---During pendency of suit, parties agreed to appoint three arbitrators who submitted award in the Court---Trial Court accepted objections of defendant against award and order of Trial Court -was upheld by Appellate Court---Parties again compromised to settle dispute through arbitrators appointed with consent of parties---Arbitrators so appointed submitted award before Court to which defendant raised objections which objections were dismissed and award was made rule of the Court---Appellate Court, on filing appeal by defendant against judgment of Trial Court, dismissed suit with costs and directed the Police concerned to register a criminal case against plaintiff under Ss.420/406/468/471, P.P.C.---Validity---Judgments of Trial Court and Appellate Court were at variance---If award had been made rule of the Court by Trial Court in haste in a summary manner without adverting to objections filed by defendant or without adjudicating upon in a judicial manner in that eventuality the only course open to Appellate Court was to remand the case to Trial Court to decide objections filed by defendant in accordance with law after proper hearing of parties---Judgment of Appellate Court, in circumstances, was not in accordance with law--­Appellate Court having committed material illegality, High Court set aside judgments of both the Courts below and remanded case to be decided afresh after deciding objections to award filed by defendant in accordance with law.

The Chief Administrator Auqaf, Punjab and another v. Mst. Nazir Fatima 1998 MLD 176; Knawal Nain's case PLD 1983 SC 53 and Shaukat Nawaz's case 1988 SCMR 851 ref.

Ch. M. Hassan for Petitioner

Ch. M. Anwar Ghuman for Respondent.

Date of hearing: 7th October, 2002.

2003 C L C 1022

[Lahore]

Before Maulvi Anwarul Haq and Pervez Ahmad, JJ

Rai MUHAMMAD KHAN and 4 others- -Appellants

Versus

Rai BAHAWAL KHAN and 4 others ---Respondents

Regular First Appeal No. 123 of 1993, decided on 3rd September,. 2002.

Specific Relief Act (I of 1877)---

----Ss. 12 &- 42---Civil Procedure Code (V of 1908), O.XXXII, R.7--­Suit, for possession and declaration---Reference of case to referee--­During pendency of suit one of the plaintiffs alongwith their counsel and one of the defendants and his counsel made statements that entire dispute in suit be referred to one of the defendants as referee and that whatever statement said referee would give regarding dispute would be accepted and suit be decided accordingly---Trial Court directed the referee to appear in Court and to make statement and referee made the statement--­Trial Court disposed of the suit in accordance with the statement of referee---Plaintiffs challenged the judgment of Trial Court contending that statement of referee could not bind other plaintiffs. that there being a minor defendant, entire agreement to refer matter, was void against all parties and that statement inasmuch it exceeded the dispute in suit, could not have been binding upon the parties and could not have formed part of judgment and decree---Statements on the basis of which suit was disposed of were made by one of the plaintiffs as well as one of the defendants alongwith their respective counsel---No plea was taken to the effect that counsel for, parties were not competent to agree to make the reference---Minor in question had not sought to avoid said agreement and guardian ad litem of minor. was referee himself---Entire statement of referee was strictly confined to dispute ween the parties---Plaintiffs could not prove that referee had travelled beyond dispute between the parties---Contention raised by plaintiffs were repelled, in circumstances---Suit was rightly disposed of by Trial Court, on basis of statement of referee.

Chhabba Lai v. Kallu Lal and others AIR 1946 PC 72 and Jaffar Abbas and others v. Ahmed and another PLD 1991 SC 1131 ref.

Talib H. Rizvi for Appellants.

Khan Khizar Abbas Khan for Respondents.

Date of hearing: 3rd September, 2002. .

2003 C L C 1026

[Lahore]

Before Sayed Zahid Hussain, J

MUHAMMAD SADIQ and others---Petitioners

Versus

AHSAN MOHY-UD-DIN and others---Respondents

Writ Petition No.243-R of 1997, heard on 1st October, 2002.

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) ---

----Ss. 2(6) & 10---Settlement Scheme No.VlI---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss. 2 & 3--­Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Transfer of property---Petitioners being occupants of disputed residential site since partition, applied for its transfer under Settlement Scheme No.VII---After prolonged litigation, High Court directed that officer competent to decide matter under Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Displaced Persons (Land Settlement) Act, 1958 would decide matter after hearing the parties---Notified Officer after hearing the parties transferred property in dispute to petitioner under Settlement Scheme No.VII---Entries appearing in Revenue Record had proved that property in- dispute was used and occupied by petitioners for residential purposes---Property in dispute could not be given any other status except what was described in Revenue Record and it could not be held subservient to agricultural purposes as claimed by respondents---Claim of petitioners fell well within ambit of Settlement Scheme No.VII and they were entitled to the same---Contention of respondents that occupation of petitioners over the property in dispute was permissive one, did not find support from record and could not be given much weight.

Syed .Shaukat Hussain Rizvi v. K.B. Dr. Yar Muhammad Khan -and another PLD 1974 SC 276; Capt. Asmat Hayat and others v. Yousaf Masih and others 1994 SCMR 456; Zafar Niazi v. Qazi Sayed Shujaatullah and others PLD 1965 (W.P.) Kar. 52; Agha Shaukat Ali v.. Settlement and Rehabilitation Commissioner, Lahore and another PLD 1965 (W.P.) Lah. 445; Mst. Ambo Jan and 2 others v. Assistant Settlement Commissioner and 6 others PLD 1975 Pesh. 244 and Nafeesa Bano and others v. Chief Settlement Commissioner, West Pakistan, Lahore and another PLD 1969' Lah. 480 ref.

S.M. Tayyab for Petitioners.

Ch. Muhammad Bakhali for Respondents.

Date of hearing: 1st October, 2002.

2003 C L C 1030

[Lahore]

Before Ch. Ijaz Ahmad, J

JAVED IQBAL BUTT---Petitioner

Versus

TEHSIL NAZIM/TEHSIL COUNCIL, DASKA and 2 others---Respondents

Writ Petition No. 11186 of 2002, decided on 20th November, 2002.

Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 67, 190 Second Sched,.---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction---Enhancement of ' Adda fee'--­Alternate remedy of appeal---Non-availing of----Petitioners had challenged enhancement in rate of `Adds fee' to be charged from vehicles operating from General Bus Stand---Validity---Petitioner had alternative remedy of appeal under S.190 of Punjab Local Government. Ordinance, 2001 against order of enhancement of rate passed by Authority concerned---Constitutional petition was not maintainable, in circumstances---Petitioner was directed to avail the alternative remedy of appeal within 20 days by filing appeal before Appellate Forum.

Muzaffar Khan v. Evacuee Trust Property 2002 CLC 1819; Glaxo Laboratories Ltd. v. Union Council and others 1991 CLC 354; Sahibzada Sharafuddin v. Town Committee Pindighee 1984 CLC 1517; Raja Mehmood's case 1994 SCMR 1484; Raja Ramzan's case 1994 MLD 930; ICI Pakistan's case 1993 MLD 32; Kh. Abdul Waheed's case PLD 1978 Lah. 811; 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; Riffat Askari v. The State PLD 1997 Lah. 285 and Messrs Aslam Traders v. Asghar Ali Tahir and others 2000 SCMR 65 ref.

Ch. Sadaqat Ali for Petitioner.

Muhammad Hanif Khatana, Add]. A.-G. for Respondents.

ORDER

The brief facts, out of which the present writ petition arises are that respondent No. l enhanced the rate in question. In case of Wagon Rs.3 per day to Rs.20 per day whereas in case of Bus from Rs.8 per day to As.30 per day. The petitioner being aggrieved filed this writ petition.

1. The learned counsel of the petitioner submits that competent authority is Regional Transport Authority therefore, rates in question revised by respondent No.l is without lawful authority. In support of his contentions, he relied upon an unreported judgment of this Court passed in Writ Petition No.8715 of 1995 dated 10-4-1998. He further submits that respondents enhanced the rates in question without providing proper hearing to the petitioner in spite of the fact that the petitioner submitted objections in view of the advertisement of respondent No.l. He further submits that respondents secured approval from the District Regional Transport Authority after filing the writ petition by the petitioner on 25-6-2002. The Regional Transport Authority approved the proposal of respondent No.l without providing proper hearing to the petitioner. He further submits that rates were enhanced by the respondents arbitrarily in a very excessive side, therefore, action of the respondents is not sustainable in the eyes of law. In support of his contentions, he relied upon the following judgments:--

(1) Muzaffar Khan v, Evacuee Trust Property 2002 CLC 1819.

(2) Glaxo Laboratories Ltd. v. Union- Council and others 1991 CLC 354.

(3) Sahibzada Sharafuddin v. Town Committee Pindighee 1984 CLC 1517.

1. The learned counsel of the respondents Nos. l and ,2 submits that respondent No. l had issued a public notice qua the increase of the rates in question in Daily Newspaper "Khabra'in" on 22nd September, 2001 which is attached with the report and parawise comments as Annexure R/l. The.petitioner and other aggrieved persons filed objections before respondent No.l. Respondent No.l/competent authority. considered the objections of the petitioner and others after providing proper hearing to all the concerned including the petitioner. Originally the proposal of increase was in case of Wagon Rs.3 per day to Rs.25 per day and in case of bus Rs.8 per day to Rs.50 per day. The same were reduced from Rs.25 to 20 and Rs.50 to Rs.30 per day respectively. Respondent No.l also got the approval from the District Regional Transport Authority on 25-6-2002. The contentions of the learned counsel of the petitioner that approval was secured after filing the writ petition, has no force as the petitioner filed the writ petition before this Court on .26-6-2002. He further submits that the District Regional Transport Authority has also taken a stand in report and parawise filed by the District Regional Transport Authority in para. 5 that the competent authority i.e. D.C.O./Chairman of the District Regional Transport Authority, Sialko', has approved to enhance the rate of Adda fee to be charged from the vehicles operating from the ' C' Class General Bus Stand, Daska keeping, in view the recent wave of increasing the rates of essential commodities, wages of labourers and particularly the increasing of raw materials for the provision of amenities at the said General Bus S f, . ' .: the larger interest of general travelling public.

2. Mr. Muhammad Hanif Khatana, Additional advocate-General submits that competent authority approved the enhanced rates on the request of respondent No.l after; applying his independent mind. Respondent No.l has pxovided proper hearing to the petitioner and disposed of the objections as is evident from reply of para. 6 filed by respondent No.l. He further submits that petitioner has alternative remedy to file an appeal against the order of respondent No.l before the higher authorities under the provisions of the Punjab Local Government Ordinance, 2001 by raising all legal and factual objections.

3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

4. Without adverting to the contentions of the learned counsel of the parties, the preliminary objection raised by the learned Additional Advocate-General has a force and the writ petition is not maintainable in view of the alternative remedy available to the petitioner. In arriving to this conclusion, I am fortified by the following judgments:--

Raja Mehmood's case 1994 SCMR 1484, Raja Ramzan's case 1994 MLD 930, ICI Pakistan's case 1993 MLD 32, Kh. Abdul Waheed's case PLD 1978 Lah. 811, Muhammad Ismail's case PLD 1996 SC 246.

The aforesaid proposition of law was considered by my learned brother the then Mr. Ehsan-ul-Haq Chaudhry, J. in Writ Petition N.o.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.

The judgments cited by the learned counsel' of the petitioner are distinguished in facts and law as the question of maintainability was not raised and decided in the cited judgments.

1. In view of what has been discussed above, this writ petition is not maintainable. The Hon'ble Supreme Court has decided the controversy in somewhat similar circumstances the Honourable Supreme Court has laid down the following principle -in the case Messrs Aslam Traders v. Asghar Ali Tahir and others 2000 SCMR 65. The relevant observation is as under:--

"In consequence, .the petitioners are allowed to avail remedy of appeal before the proper forum within 20 days from today, which, if filed, the said forum shall given benefit as regards delay of the period during which writ petitions remained pending before the High Court and shall decide the appeal on merits as well as the prayer for interim relief Meanwhile, no coercive measures will be `taken against the petitioners for a period of 20 days from today to enable them to approach the appropriate forum. "

1. Keeping in view the guidelines , by the Honourable Supreme Court in the aforesaid judgment, the petitioner is directed to avail the alternative remedy within 20 days from today, by filing the appeal before the Appellate Forum/Competent Authority and the Appellate Forum/Competent Authority is directed to decide the appeal of the petitioner after providing proper hearing to all the concerned including the petitioner strictly in accordance with law on merits and shall not dismiss the appeal of the legal heirs of petitioner as time­barred.

With these observations the writ petition is disposed of.

H. B. T./J-7111 Order accordingly

2003 C L C 1034

[Lahore]

Before Maulvi Anrvarul Haq, J

MUHAMMAD LATIF---Petitioner

Versus

ELECTION TRIBUNAL FOR RAWALPINDI (ADDITIONAL DISTRICT JUDGE, ATTOCK) and 2 others---Respondents .

Writ Petition No. 3116 of 2002, heard on 30th October, 2002

(a) Representation of the People Act (LXXXV of 1976)---

----S. 52---Constitution of Pakistan (1973), Arts.199 & 225--­Constitutional petition---Re-counting of votes---Petitioner having been declared returned, respondent who remained unreturned only by one vote challenged elections through election petition---Election Tribunal ordered recounting of votes and as a result of recount number of votes of respondent/unreturned candidate were found to be 494 while those of petitioner/returned candidate found to be 457 after rejection of respective votes and consequently respondent candidate was declared elected instead of petitioner who initially was declared elected---Validity---No reason was recorded by Election Tribunal either in daily order-sheet or in the judgment itself as to why Election Tribunal proceeded to reject five votes of respondent and 43 votes of the petitioner---Election Tribunal had proceeded in a very casual and callous manner while deciding such a sensitive question and did not adopt proper procedure for recounting votes---High Court set aside judgment of Election Tribunal with direction that election petition filed before Election Tribunal would be deemed to be pending and Election Tribunal after summoning the parties would conduct recount of votes in the manner as directed by superior Courts.

(b) Representation of the People Act (LXXXV of 1976)---

----S. 52---Recounting of votes---Requirements.

Following are the requirements for recounting of votes:-.

(i) The relevant records (bags) to be summoned and to be opened in presence of the parties and their counsel unless the counsel or the party makes an express statement that the process be continued in absence of the counsel or the parties as the case may be.

(ii) The outcome of the recount to be noted in detail in daily order-­sheet.

(iii) If a valid ballot paper is determined to be an invalid by the Election Tribunal, the reason to be stated. as to why it has been so declared invalid.

(iv) If an invalid ballot paper is determined to be a valid ballot paper, the reason to be stated fdr the said determination.

(v) Upon. conclusion ,of the said proceedings, the counsel as well as the. parties-present to be asked to sign the proceedings and to record objections if any thereon, (vi) Thereafter the result to be tabulated on the order-sheet itself and if further proceedings are not required, judgment be recorded accordingly.

Malik Waheed Anjum for Petitioner.

Malik Itaat Hussain for Respondent No.2.

Date of hearing: 30th October, 2002.

2003 C L C 1041

[Lahore]

Before Maulvi Anwarul Haq, J

MEHDI ABBAS KHAN---Petitioner

Versus

SECRETARY; ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and 8 others ---Respondents

Writ Petition No.3111 of 2002, heard on 28th October, 2002.

Representation of the People Act (LXXXV of 1976)---

----S. 52---Constitution of Pakistan (1973), Arts.199 & 225---. Constitutional petition---Petitioner was declared elected as per result tabulated by Returning Officer, but subsequently result was revised by the Returning Officer anti according to the revised statement of count opposing candidate who got more votes was declared successful and Election Commission of Pakistan issued a notification declaring him to be returned candidate---Petitioner contended that Election Commission of Pakistan could not have directed the Returning Officer to retabulate the results and only recount could have been ordered---Validity---Election Tribunals having been constituted, all matters pertaining to the result of election were to be dealt with 'by Election Tribunal so constituted as ordained under Art. 225. of Constitution of Pakistan (1973)---Pure question of fact being involved in the case, same could better be resolved in the election petition before Election Tribunal---Constitutional petition was disposed of with observation that petitioner could approach Election Tribunal by filing election petition in which he could raise all legal and factual objections including one raised by him in the Constitutional petition.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer 1994 SCMR .1299; Sardar M. Jamal Khan Leghari v. Sardar Zulfiqar Ali Khan Khosa PLD 1997 Lah. 250; Ch. Nazir Ahmed. and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184 and Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396 ref.

Muhammad Ahm-ed Qayyum for Petitioner.

Iftikhar Hussain Shah, S.O. for Respondent No. 1.

Sh. Muhammad Akram for Respondent No.2

Date of hearing: 28th October, 2002.

2003 C L C 1049

[Lahore]

Before Sayed Zahid Hussain, J

ABDUL SATTAR---Petitioner

Versus

MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB through Secretary to Government Punjab Colonies Department, Lahore and another ---Respondents

Writ Petition No.4595 of 1988, heard on 10th September, 2002

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

----Ss. 10 & 30---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Land reserved as "Charagah" land was meant for extension of ' Abadi Deh'---Temporary lease of land for a fixed period---Proprietary rights---Claim for---Land in question was reserved as Charagah' land meant for extension ofAbadi Deh' and for projects of general welfare of the community---Said land was leased out to lessee for temporary cultivation for a fixed period only and lessee through an affidavit had undertaken that he would surrender land as and when required by Government for public purpose---Said land having been transferred to Education Department for construction of building of a school, lessee had assailed order of transfer claiming that he being a landless occupant of the said land was entitled. to grant of proprietary rights thereof and that same could not be transferred to Education Department---Lessee, who had undertaken to surrender'land as and when required by Government for public purpose, had no locus standi to challenge transfer of land to Education Department for construction of a school which was public purpose and lessee had not acquired any indefeasible right to acquire proprietary rights in respect of said land.

Mian Muhammad Waheed Akhtar for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.-G. for Respondents.

Date of hearing: 10th September, 2002.

2003 C L C 1050

[Lahore]

Before Farrukh Lateef, J

GUL MUHAMMAD TABASSAM---Petitioner

Versus

Mst. GULSHAN ARA and others---Respondents

Writ Petition No. 1957 of 2002, decided on 20th August, 2002

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

----Art. 199---Constitutional jurisdiction---Scope---Concurrent findings of Courts below could not be successfully assailed in Constitutional jurisdiction of High Court, unless Courts had exceeded jurisdiction, acted without jurisdiction or findings were based on no evidence--­Constitutional petition would not lie to challenge an order on the ground that evidence in the case was not correctly appreciated because findings of facts recorded by Courts of competent jurisdiction could not be 'disturbed simply on ground that another view could be possible on the same evidence---High Court in its Constitutional jurisdiction could not sit as a Court of appeal and could not substitute findings of fact recorded by Courts below-as such matter should be decided by Courts invested with jurisdiction to decide.

Anwarul Haq Bari for Petitioner.

Muhammad Sadiq Chughtai for Respondent No. 1.

Date of hearing: 7th August, 2002.

2003 C L C 1052

[Lahore]

Before Maulvi Anwarul Haq and Pervez Ahmad, JJ

MUHAMMAD LATIF---Appellant

Versus

MUHAMMAD LATIF and another---Respondents

Regular First Appeal No. 176 of 1993, heard on 13th August, 2002

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

----Ss. 42 & 12---Suit for specific performance of agreement to sell and declaration---Plaintiff had claimed that defendant who was owner of suit land agreed to sell the land to plaintiff vide agreement and that plaintiff had paid entire amount to the defendant who had also execued registered general power of attorney in his favour---Plaintiff had alleged, that the defendant, in breach of said agreement sold suit land in favour of another person vide registered sale-deed which was illegal, void and ineffective upon rights of the plaintiff ---Vendee had resisted suit contending that he was a bona fide purchaser of suit land for value and without notice and that he had no knowledge of agreement arrived at between plaintiff and the defendant--- Trial Court decreed the suit ---Vendee had pleaded and also stated on oath that he 'was not aware of the agreement allegedly arrived at between plaintiff and defendant---Plaintiff himself neither pleaded nor stated in evidence that he had informed the vendee of the said agreement or for that matter vendee was in any manner aware of said agreement at the time of sale in his favour---Trial Court, in circumstances, was not justified to decree suit---Findings recorded by Trial Court were reversed in appeal---No allegation against vendee that he had committed any fraud or was a party to alleged fraud---Defendant was proved to have fraudulently received amount from the plaintiff under agreement---High Court setting aside judgment and decree of Trial Court also passed decree for recovery of amount in favour of plaintiff and against the defendant who had fraudulently received same from plaintiff.

Mst. Surraya Begum and others v. Mst. Subhan Begum and others 1992 SCMR 652; Ramdeni Singh v. Gumani Raut AIR 1929 Pat. 300 and Mst. Khairul Nisa's case PLD 1977 SC 25 ref.

Alamgir for Appellant.

Ch. Ijaz Akbar for Respondent No.1

Nemo for Respondent No.2.

Date of hearing: 13th August, 2002.

2003 C L C 1057

[Lahore]

Before Farrukh Lateef; J

Brig. (R.) AZIZ MUHAMMAD KHAN---Petitioner

Versus

SECRETARY, MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN---Respondent

Writ Petition No. 7170 of 2002, decided on 3rd September, 2002.

Constitution of Pakistan (1973)---

----Art. 199(1)(a)(i)---Writ of mandamus, issuance of ---Requirements--­ Existence of a legal right is the foundation of writ of mandamus and the petitioner has to be an aggrieved person---Petitioner, in order to succeed in obtaining relief by way of writ of mandamus must satisfy the Court that he, had a legal right to compel the performance of the duty and the, person against whom right was sought was under a legal obligation to perform that duty---Discretion in Constitutional jurisdiction could not be exercised in favour of a petitioner who could not himself take benefit of order given by the Court---Petitioner being not aggrieved party within meaning of Art.199(1)(a)(i) of Constitution of Pakistan, petition filed by him was not maintainable.

Petitioner in person.

2003 C L C 1058

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD RIAZ and 6 others---Petitioners

Versus

MUMTAZ ALI ---Respondent

Civil Revision No. 1315 of 1995, heard on 5th September, 2002

Specific Relief Act (I of 1877)---

----S. 12---Guardians and Wards Act (VIII of 1890); S.29---Suit for specific performance of agreement of sale---Suit plot was owned by three minors---Father of minors who subsequently was appointed their guardian, entered into agreement for sale of suit plot with plaintiff after receiving amount as earnest money---Suit for appointment of guardian by father of minors being pending, according to agreement of sale all expenses of said litigation were to be borne by plaintiff and father of minors after having been appointed as guardian of minors was to execute sale deed in favour of plaintiff after recurring balance amount---Father of minors was appointed guardian of minors and he also obtained permission to alienate suit plot---Father of minor thereafter not only did not perform agreement arrived at between him and plaintiff, but also proceeded to sell suit plot to another person vide attested mutation--­Plaintiff filed suit for specific performance which was resisted by defendant/father of minors inter alia on the .ground that agreement was violative of S.29 of Guardians and Wards Act, 1890---Courts concurrently decreed the suit---Validity---Execution of agreement of sale and receipt of earnest money had not specifically been denied by defendant/father of minors---Even otherwise said agreements were proved by evidence of scribe and marginal witnesses---Provisions of S.29 of Guardians and Wards Act, ' 1890, though had placed an embargo upon certified guardian in the matter of alienation of property of minors except with prior permission of Guardian Court, but in the present case agreement was executed by father of minors claiming to be natural guardian and he after having been appointed as guardian, had also obtained certificate from the Court to alienate suit plot---Subsequent vendees of suit plot did not even care to call upon father of minors to produce said certificate---Courts below, in circumstances, had not committed any jurisdictional error in decreeing the .suit and in disbelieving .bona fides of subsequent transactions of suit plot in favour of the other vendees.

Khalid Javed Abbasi v. Sharafat Ali Abbasi and 4 others 1984 CLC 1803 and Messrs Vaseem Construction Co. v. Province of Sindh through Secretary to Government of Sindh, Communication and Works Department, Karachi and 4 others 1991 CLC 640 ref.

M. Zainul Abidin for Petitioners.

Tafaazal H. Rizvi for Respondent., Date of hearing: 5th September, 2002.

2003 C L C 1062

[Lahore]

Before Farrukh Lateef, J

GUL MUHAMMAD TABASSAM---Petitioner

Versus

GULSHAN ARA and 2 others---Respondents

Writ Petition No. 1958 of 2002, decided on 20th August, 2002.

Constitution of Pakistan (1973)---

----Art. 199---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched. & S.14---Constitutional jurisdiction of High Court ---Scope--­Concurrent findings of Family Court and Appellate Court could not be successfully assailed in Constitutional jurisdiction of High Court unless said Courts had exceeded jurisdiction, acted without jurisdiction or findings were based on no evidence---Constitutional petition also would not lie to challenge an order on ground that evidence in the case was not correctly appreciated because findings of facts recorded by Courts of competent jurisdiction could not be disturbed simply on ground that another view could be possible on the same evidence---High Court in its Constitutional jurisdiction could not sit as a- Court of Appeal and could not substitute findings of facts recorded by Courts below invested with jurisdiction to decide the matters---In absence of any misreading or non-reading of any material piece of evidence on record by Courts below, Constitutional petition filed against their judgment was dismissed.

Anwarul Haq Bari for Petitioner.

Muhammad Sadiq Chughtai for Respondent No. 1.

Date of hearing:r7th August, 2002.

2003 C L C 1064

[Lahore]

Before Sayed Zahid Hussain, J

MUHAMMAD LATIF---Petitioner

Versus

MEMBER, BOARD OF REVENUE/CHIEF SETTLEMENT COMMISSIONER, PUNJAB, LAHORE and 9 others---Respondents

No. 92/R of1997, heard on 16th August, 2002

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

----O. XX, R. 1---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Pronouncing judgment---Limitation---Member, Board of Revenue, after hearing case, reserved the same for orders and passed order after about ten months of hearing of the case---Contention was that order was liable to be declared as illegal and of no effect as the same was passed long after hearing of case--­Statutory obligation under O.XR, R.1; C.P.C. was to decide matters within thirty days of hearing of case---Decision of cases had to be taken within a reasonable time after hearing thereof---Order passed by Member, Board of Revenue, even otherwise being violative of principles of natural justice, was not sustainable and same was declared as of no effect.

Muhammad Ibrahim through his Legal Heirs v. Sindh Industrial Trading Estate Ltd. and 3 others PLD 1985 Kar. 95 and Crescent Sugar Mills & Distillery Ltd., Faisalabad v. Central Board of Revenue, Islamabad and 2 others PLD.1982 Lah. 1 ref.

(b) Natural justice, principles of---

--- Material likely to be made basis for a decision/order against a party, should be made known to party concerned affording opportunity of explanation and rebuttal and no extraneous material could be made use of for any such order---Concept of adjudication of matters and dispensation of justice would rest upon prolnciples of natural justice.

Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531 ref.

(c) Practice and urocedure---

----Search for the material/evidence in the case made after hearing thereof, was unwarranted by law---Mere length and breadth of an order, was not the determining factor as to its validity or otherwise when question of exercise of judicial powers was raised before Court.

Sh. Muhammad Hanif for Petitioner.

Rana Muhammad Nawaz for Respondents Nos. l to 3

Muhammad Yousaf for Respondent No.5.

Amjad Hussain Syed for Respondent No. 10.

Date of hearing 16th Augusi, 2002.

2003 C L C 1068

[Lahore]

Before Ch. Ijaz Ahmad, M. Javed Buttar and Syed Jamshed Ali, JJ

NAJAF ABBAS SIAL---Petitioner

Versus

Kh. HASSAN WALI KHAN, ADDITIONAL DISTRICT JUDGE/RETURING OFFICER PP-83, JHANG and another---Respondents

4os.16694 16729 and 16653 of 2002, decided on 16th

Constitution of Pakistan (1973)---

----Arts. 199 & 225---Constitutional petition---Election---Acceptance of Nomination Papers---Maintainability of Constitutional petition--­Article 225 of the Constitution having barred Constitutional petition, against acceptance of Nomination Papers was not maintainable--­Controversy with regard to genuineness or otherwise of Degree of contesting respondent, involving resolution of disputed question of fact, could not be undertaken in proceedings under Art.199 of the Constitution---Voter who was not an aggrieved person, his Constitutional petition was also not maintainable.

Ghulam Mustafa Jatoi v. Additional District Judge/Returning Officer 1994 SCMR 1299; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazal Khan and others PLD 1975 SC 331; Tariq Mehmood v. The District Returning Officer, Faisalabad and 3 others 2001 SCMR 1991; Lt.-Col. Farzand Ali and others v. Province of the West Pakistan PLD 1970 SC 98; Baqra v. Muhammad Yousaf and another PLD 1966 (W.P.) Lah. r49; Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396 and Chaudhry Nazir Ahmad and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184 ref.

Dr. A. Basit and Malik Noor Muhammad Awan for Petitioner.

Sardar Muhammad Latif Khan Khosa for Respondent No.2.

Syed Mohsin Abbas for the University.

2003 C L C 1073

[Lahore]

Before Muhammad Khalid Alvi and- Nazir Ahmad Siddigui, JJ

MUHAMMAD HASSAN and others---Appellants

Versus

MUKHTAR AHMAD and another---Respondents

Regular First Appeal No.94 of 1985, heard on Ist August, 2002.

(a) Punjab Pre-emption Act (I of 1913)---

----Ss. 4, 15 & 21---Suit for pre-emption ---Superior right of pre­emption ---Principle of "sinker", applicability of---Suit by plaintiff claiming to be co-sharers and owners of estate in locality, was resisted by defendants/vendees on the ground that they being tenants of suit-land at the time of sale thereof, had preferential right of pre­emption as against the plaintiff---In one of the Jamabandis out of thirteen vendees, twelve were recorded as tenants in suit-land while thirteenth was not recorded as tenant and in another Jamabandi only three of them were recorded as tenants ---Defendants/vendees having joined strangers with them, they were hit by principle of "sinker" and could not claim any competitive right of pre-emption as against plaintiffs, especially when defendants could not prove that sale was divisible.

1993 SCMR 1486; 1998 CLC 1935; PLD 1968 SC 140 and 199SCMR 1419 ref, (b) Punjab Pre-emption Act (I of 1913 ---

Ss. 4, 15(c), thirdly & 21---Suit or pre-emption Superior right of pre-emption ---Suit was resisted by defendants alleging that land purchased by plaintiffs on basis of which plaintiffs had claimed superior right of pre-emption, being not assessed to land revenue, could not clothe plaintiffs with a status of owner in estate and they could not claim superior right of pre-emption---Contention of defendant was repelled because it was not always necessary that agricultural land must be assessed to land revenue---In some eventualities a particular area might ,not be under assessment for any reason for a particular period or under S.56-A of West Pakistan Land Revenue Act, 1967 some land could be exempted from land revenue---Two big chunks of land purchased by plaintiffs in village by no stretch of reasoning could be said to be non­agricultural land as no evidence was on record that said land was being used for any purpose other than agricultural---If a land was assessed, to land revenue, but was ultimately being used for a non-agricultural purpose and had lost its agricultural character and was so established on record; person owning such land would not be entitled to a right of pre­emption ---As against that a person owning a piece of land not being assessed to land revenue, but otherwise ascertainable as having agricultural status, would be, entitled on basis of such ownership to a right of pre-emption ---Object was only to exclude non-proprietors from the estate---Plaintiffs having become owner in estate by purchasing big chunks of agricultural land in village before sale of suit-land, were owners in estate and had, superior right of pre-emption in respect of suit­ land.

PLD 1989 SC 373; 1989 CLC 195 and 1977 SCMR 297 ref.

Ch. Qadir Bakhsh and Kanwar Akhtar Ali for Appellants.

Sh. M. Zafar Iqbal and Bashir Ahmed Choudhry for Respondents.

Date of hearing: 1st August, 2002.

2003 C L C 1150

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD IBRAHIM ---Petitioner

Versus

HUSSAIN BAKHSH --- Respondent

Civil Revision No.433-D of 1993/BWP, decided on 2nd September, 2002.

Punjab Pre-emption Act (IX of 1991)-----

----S. 6---Transfer of Property Act (IV of 1882), S.54---Pre-emption suit---Plaintiff claimed to be a co-sharer in the Khata on the basis of an oral sale---Said oral sale was invalid because the provisions of S.54 of the Transfer of Property Act, 1882 were applicable to, the area concerned and no pre-emption action could sustain on the basis of an oral sale---Validity---Being co-sharer in Khata claim of superior right of pre-emption could not sustain---Suit was dismissed in circumstances.

Muhammad Ashraf v. Haji Muhammad Hanif 2002 CLC 31 ref.

Nadeem Iqbal Chaudhry for Petitioner.

Malik M. H. Zafar Misson for Respondent.

Date of hearing: 2nd September, 2002.

2003 C L C 1172

[Lahore]

Before Maulvi Anwarul Haq, J

ILYAT KHAN and 10 others---Petitioners

Versus

BEZAD KHAN through Legal Heirs and others---Respondents

Civil Revision No. 490/D of 1997, heard on 17th December, 2002.

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

----S. 42--Transfer of Property Act (IV of 1882), S.52---Declaratory suit---Lis pendens, principle of---Applicability---Concurrent findings of facts of Courts below to the effect that predecessors-in-interest of the defendants had got themselves wrongly entered in the Jamabandi as occupancy tenants of the suit property---Petitioners who were bona fide purchasers of the suit property while not impugning the decision of the Courts below on merits, had filed civil revision contending that they could not be dispossessed of the suit property being bona fide purchasers and that the suit was barred by time---Validity---Petitioners had not questioned the findings recorded by the Courts below to the effect that entries in Jamabandi for the year 1952-53 showing predecessor-in-­interests of the defendants as occupancy tenants were illegal---Admittedly petitioners had purchased suit-land during pendency of suit and proceedings arising out of it ---Transactions in their favour were squarely hit by the principles of lis pendens as contained in S.52 of the Transfer of Property Act, 1882---High Court refused to interfere in the findings of the Courts below---Revision petition was dismissed in circumstances.

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

----S. 42---Limitation Act (IX of 1908), Art.120---West Pakistan Land Revenue Act (XVII of 1967), S.53---Declaratory suit ---Limitation--­Petitioner had contended that limitation would start from the date of attestation of mutation in question and not from the date when title to the suit property was assured by defendants and that the suit was barred by time as having been filed beyond a period of six years as prescribed by Art.120 of the Limitation Act, 1908---Validity---Mere wrong entries in the Jamabandi or attestation of mutation would not make the limitation start to run against the plaintiff in the suit---No overt act was attributable to the defendants in the suit prior to the institution of suit---Contention of the defendant that there was no evidence that the plaintiffs had been in receipt of the rent from the said non-occupancy tenant was without force as mere non-payment of rent by tenant for any length of time would not change nature of his possession---Contention of the petitioners as regards limitation was without force.

Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLD 1994 SC 245 and Mst. Rasul Bibi and others v. Manzoor Ahmad and others 1985 CLC 2268 ref.

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

----S. 53---Entry in Revenue Record proved to be illegal---Effect---Once it was found that the entries were wrong and had been unlawfully changed, it would be deemed that the old entries were continuing.

Allah Dad v. Muhammad Ali and others PLD 1956 Lah. 245 and Nisri through L.Rs. and others v. Muhammad Sharif and others 1997 SCMR 338 rel.

Sh. Zamir Hussain for Petitioners.

Agha Tariq Mehmood for Respondents.

Date of hearing: 17th December, 2002.

2003 C L C 1179

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD YAQOOB---Petitioner

Versus

REHMATULLAH---Respondent

Civil Revision No.971-D of 1997, decided on 10th May, 2002.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Suit for pre-emption ---Making of Talbs---Proof--­Plaintiff had taken contradictory stand during trial of case with regard to making of Talbs---Plaintiff had asserted in the plaint that he came to know about sale and made Talb-e-Muwathibat and that a notice was sent to defendant which was received by him---Plaintiff did not make Talb-e-­Muwathibat at the same time when he gained knowledge, of sale, but he had himself sated that he went to defendant alongwith 3/4 persons at about 6 p.m. on relevant date and asked defendant to return the suit-land ---Talb-e-Muwathibat, in circumstances, had not been performed by plaintiff---Plaintiff had stated in the plaint that he sent notice for Talb-e-Ishhad, in that respect to defendant, which was received by him, but while appearing in the Court he had not stated about sending of the said notice---Plaintiff had himself admitted that there was no Post Office in his village---Plaintiff, in circumstances, had taken contradictory stand regarding performance of Talb-e-Ishhad also---Appellate Court below, in circumstances, had rightly reversed finding of Trial Court regarding making of Talb-e-Muwathibat and Talb-e-Ishhad which was arrived at by the Trial Court by misreading the evidence on record---In absence of any illegality or irregularity, in judgment and decree passed by Appellate Court dismissing suit of plaintiff, same could not be interfered with in revision by High Court.

Muhammad Sadiq v. Mst. Bashiran and others PLD 2000 SC 820 ref.

Nemo for Petitioner.

N.A. Butt for Respondent.

Date of hearing: 10th May, 2002.

2003 C L C 1218

[Lahore]

Before Sayed Zahid Hussain, J

Ch. MUHAMMAD ALI---Appellant

Versus

Haji FEROZ DIN---Respondent

Second Appeal from Order 23 of 1995 and Civil Miscellaneous Application No. 1087 of 2002, decided on 19th March, 2003.

Civil Procedure Code (V of 1908)---

----O. XLI, R.19---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.15(6)---Limitation Act (IX of 1908), S.5, Arts. 168 & 181--­Restoration of appeal dismissed in default of appearance--­Condonation of delay---Non-supply of cause list---Appeal was dismissed on 22-5-2000---Application for restoration was filed on 24-6-2002 and application under S.5 of Limitation Act, 1908 was filed on 12-10-2002--­Plea of applicant was that on account of non-supply of cause .list to his counsel, dismissal of appeal would be treated to be without notice to him; and that Art.181 and not 168 of Limitation Act, 1908 would apply in the present case---Validity---Name of applicant's counsel had duly appeared in cause list for 22-5-2000---As to supply of cause list to his counsel, there was presumption---Respondent through counter-affidavit had controverted affidavits filed by applicant and his counsel--No explanation was given for taking such a long time in filing restoration application and then application for condonation of delay---Applicant had not explained each day's delay, which he was obliged to do--­All such matters smacked of indolence, indifferent attitude and conduct of applicant in pursuing appeal---Applicant, in circumstances, was not prevented by any sufficient cause from appearing on 22-5-2000---Article 168 and not Art.181 of Limitation Act, 1908 would apply to facts and circumstances of such case---High Court dismissed both such applications.

Lal Dino and others v. Deputy Commissioner and others 1982 SCMR 201 and Sindh Industrial Trading Estates v. West Pakistan Water and Power Development Authority PLD 1991 SC 250 rel.

Saleem Anwar Khan for Applicant:

M. Iqbal and Saif-ud-Din Chughtai for Respondent.

2003 C L C 1220

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD BAKHSH---Petitioner

Versus

KHUDA BAKHSH and others---Respondents

Civil Revision No. 894 of 1990, decided on 11th March, 2003.

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

----S. 8---Suit for possession on the basis of title---Suit was decreed by Trial Court but decree was upset by the Appellate Court--­Maintainability---Plaint did not show that possession of the land was also delivered to the plaintiffs under the allotment order---Document produced by the plaintiff in support of his claim did not contain any description and location of the plot so allotted---Neither copy of allotment order, nor any certificate showing allotment was produced indicating that Ahata in question was allotted to him---Oral evidence of the plaintiff was not supported by any document ---Patwari Halqa admitted in cross-examination that the land was a part of Abadi Deh which was not State land; and that the said land could not be identified at the spot because there was neither any mutation nor any record of delivery of possession of the alleged allotted land--­Held, since neither any order of allotment, nor that of delivery of possession under the alleged allotment was produced, finding of Appellate Court that petitioner had failed to prove his case was unexceptionable.

(b) Suit---

---- Plaintiff has to stand on his own legs and it is for him to prove his case.

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

----S. 115 & O. XLI, R. 27---Acceptance of application for additional evidence by Appellate Court---Contention was that application was accepted without allowing the petitioner to produce evidence in rebuttal to the additional evidence---Neither copy of order accepting application for additional evidence nor any other order of Appellate Court was annexed with the revision petitions nor any material had been placed on record at any subsequent stage to show that the right of rebuttal was refused to the petitioner---Such bald assertion of the petitioner was not sustainable.

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

----S. 115---Revisional jurisdiction---Scope---Said jurisdiction is directed against irregular exercise non-exercise or illegal assumption of jurisdiction and not against conclusion of fact or law not involving question of jurisdiction.

Mirza Aziz Akbar Baig for Petitioner.

Khizar Hayat Khan Punian for Respondents.

Date of hearing: 17th February, 2003.

2003 C L C 1231

[Lahore]

Before Sayed Zahid Hussain, J

AMIR SHEIKH---Petitioner

Versus

Mst. RIFFAT ARA and 2 others---Respondents

Writ Petition No.410 of 2003, heard on 2nd April, 2003.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Right to challenge order of the Rent Controller by way of an appeal before the District Judge---Conditions---Dismissal of objection petition by the Rent Controller during execution proceedings---Dismissal of appeal against such order by the District Judge on the ground that the order before the Rent Controller was an interlocutory and not final in nature---Validity---Mere fact that the execution application was not disposed of while dismissing the objection petition would not detract from the finality of the order qua the rights of the petitioner nor could the same be considered interim or interlocutory in nature---With the dismissal of the objection petition, an order of final nature was passed qua the petitioner---Such a disposition of the matter could not be construed as of interim or of interlocutory nature---Order of District Judge was declared as of no legal effect and appeal filed by the petitioner would be deemed to be pending.

Meraj Din and 3 others v. Additional District Judge, Gujranwala and 2 others 1993 CLC 1872 fol.

Ch. Muhammad Bakhsh for Petitioner.

Gulsher Mir for Respondents.

Date of hearing: 2nd April, 2003.

2003 C L C 1236

[Lahore]

Before Tanvir Bashir Ansari and Mian Muhammad Jahangier, JJ

PAKISTAN TOBACCO COMPANY LIMITED, ISLAMABAD---Petitioner

Versus

MUNICIPAL COMMITTEE, JHELUM through Administrator and

another---Respondents

Intra-Court Appeal No. 74 of 1999, heard on 26th March, 2003.

(a) Constitution of Pakistan (1973)---

----Art. 199---West Pakistan Municipal Committees (Octroi) Rules, 1964---Constitutional petition---Maintainability---Demand of excessive octroi made by contractor to whom collection rights of octroi had been leased out---No alternate remedy by way of appeal or representation being available to the petitioner, Constitutional petition was competent.

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

----O. XIV, Rr. 1 & 2---Issues of law, and fact---Classification of goods was not always a pure question of fact.

(c) West Pakistan Municipal Committees (Octroi) Rules, 1964---

----Chap. IV---Constitution of Pakistan (1973), Art.199---Constitutional petition ---Octroi Schedule---Classification of un-manufactured and manufactured tobacco in octroi Schedule---Continuous payment of Octroi on dried tobacco under classification of un-manufactured tobacco by the petitioner---Shifting of position regarding the classification of product in Octroi Schedule by the Authority---Validity---Authority could not be allowed shifting of its position regarding same product particularly when such change of practice and version acted to an unprecedented benefit to the charging Authority to the disadvantage to the taxpayer.

Al-Hamza Ship-Breaking Co., Karachi v: Government of Balochistan and 2 others 1997 MLD 635; Collector of Customs, Customs House, Lahore and 3 others v. Messrs S.M. Ahmed & Company (Pvt.) Limited, Islamabad 1999 SCMR 138; Commissioner of Income tax. v. Lucky Mineral (Pvt.) Ltd. 1999 PTD 1004; Malik Akbar Khan and another v. Zila Council, Sargodha and another 1989 MLD 4761; ICT Pakistan Ltd. Soda Ash Works, Khewra, District Jhelum v. Zila Council, Chakwal through Chairman and another 1993 MLD 32 and Messrs Shifa Medico v. The Metropolitan Corporation of Lahore and another 1990 SCMR 639 ref.

Super Industries (Pvt.) Ltd. v. Central Board of Revenue and others 2002 PTD 955 rel.

Farrukh Javed Panni for Petitioner.

Mehmood Ahmed Chaudhry and Syed Younis Ali Shah Bokhari on behalf of Tehsil Municipal Administration.

Date of hearing: 26th March, 2003.

2003 C L C 1241

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD UMAR---Petitioner

Versus

Mst. ZAINAB MAI and others---Respondents

Writ Petition No. 950 of 2003, decided on 11th March, 2003.

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

----S. 5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for dissolution of marriage---Suit was decreed on the, basis of Khula' on the condition that dower would not be claimed---No issue regarding Khula' was framed by the Family Court but evidence recorded was produced on record---Effect---Ground of Khula' having been taken up in the plaint and evidence on that ground having been produced, Family Court was empowered to consider whether on the basis of said evidence, marriage could be dissolved on the principle of Khula'---Dissolution of marriage on the ground of Khula' on the basis of evidence on record, in spite of the fact that specific issue regarding Khula' was not framed, was valid.

(b) Islamic Law---

----Application for dissolution of marriage on the ground of Khula'--­Puberty of wife---Determination---Husband requesting the Court to get the wife medically examined---Wife showing unwillingness to get herself medically examined---Unwilling person could not be legally compelled to undergo medical examination, at the most an adverse inference could be drawn on account of such unwillingness.

(c) Islamic Law---

----Divorce---Dissolution of marriage on ground of Khula'---Wife is entitled to Khula' as of right, if she satisfies the Court that she had developed fixed aversion towards the husband---Refusing the dissolution of marriage would mean forcing her into a hateful union.

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

---S. 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Findings recorded by the Family Court on the issue of jurisdiction as well as on other issues, after having examined and assessed the evidence and based on sound and plausible reasoning---Such findings could not be successfully assailed in Constitutional jurisdiction.

Waseem Shahab for Petitioner.

2003 C L C 1245

[Lahore]

Before Ch. Ijaz Ahmad and Ali Nawaz Chowhan, JJ

ZAHIDA PERVEEN and 3 others ---Appellants

Versus

MUHAMMAD SALEEM and another---Respondents

Regular First Appeals Nos.28 and 29 of 2001, decided on 26th February, 2003.

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

----Ss. 9 & 18---Pecuniary jurisdiction---Court lacking pecuniary jurisdiction, order/judgment passed by such Court would be void.

D.A. Gill's case 1986 MLD 942 and Ghulam Mohy-ud-Din Khan's case 1984 CLC 1171 ref.

(b) West Pakistan Civil Courts Ordinance (II of 1962)---

----Ss. 9 & 18--Pecuniary jurisdiction---Appellate Court having no pecuniary jurisdiction, any adjudication made by it would amount to nullity.

Ghulam Mustafa's case 1987 CLC 1999 and Ghulam Mohy-ud­-Din Khan's case 1984 CLC 1171 ref.

(c) West Pakistan Civil Courts Ordinance (II of 1962)---

----Ss. 9 & 18 [as amended by Punjab Civil Courts Ordinance (LV of 2002]---Civil Procedure Code (V of 1908), S. 24---Limitation Act (IX of 1908), Ss. 5 & 14---Appeal filed in the High Court by mentioning wrong valuation for the purposes of court-fee and jurisdiction-- Transfer of appeal to the District Judge by the High Court---Contention was that the appeal having not been properly instituted, High Court had no jurisdiction to transfer the appeal to District Judge but had to return the same to the appellant for filing the same before competent Court---Validity---Memo. of appeal was returned to the appellant for presentation before competent Court---Appellant may file application under S. 5 read with S. 14 of Limitation Act for condonation of delay which would be considered by the Court in peculiar circumstances of the case.

Shireen's case 1995 SCMR 584; Ghulam Nabi's case 1994 MLD 576; Razia Shafi's case PLD 1971 SC 247; Ghulam Nabi v. Moeen-ud-Din 1996 MILD 576 and Dawood Baig's case 1987 SCMR 1161 ref.

Kazim Khan for Appellants

S.M. Masud for Respondent No. 1.

Khalil Ahmed Naqvi for Respondent No.2.

2003 C L C 1248

[Lahore]

Before Farrukh Lateef, J

GHULAM MUHAMMAD ---Petitioner

Versus

NOOR MUHAMMAD and others---Respondents

Writ Petition No. 3487 of 1992, decided on 11th March, 2003.

(a) Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Rural Water Supply Scheme in the Thobai Area of the Punjab was completed in the year 1990 and at the time of initiating the said scheme it was decided and settled by the Local Authority that the post of Caretaker shall be given to the owner of the water-spring---Petitioner was appointed as Caretaker of the tank by the Public Health Engineering Department and another claimant of the said post, challenged the said appointment whereupon matter was referred to Political 'Assistant for verification of ownership of spring, who obtained a report in that behalf from Political Naib Tehsildar which was in favour of petitioner---On subsequent inquiry by Political Tehsildar, it was found that contesting respondents were owners of the spring---Political Assistant found that there was no reason for disturbing the appointment of the petitioner---Appeal of the contesting respondents was dismissed by Commissioner, while the revision filed by the contesting respondents was accepted by the Secretary Law---Validity---At the time of initiating the water supply scheme it was agreed and settled between the Public Health Engineering and the people of the said tribal area that post of caretaker of the water tank shall be given to the owner of water-spring; such crucial point was not adverted to by the Political Assistant and Commissioner End report of Political Tehsildar that respondents were owners of the spring was completely overlooked and ignored---Said issue was properly dealt with by Secretary Law---No interference in the impugned order was made by the High Court.

(b) Practice and procedure---

----Satisfactory performance of duty by a person who is otherwise not eligible for appointment cannot make his appointment lawful.

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

----Art. 199---Constitutional jurisdiction of High Court ---Scope--­Objections not raised in other forums---Objection of the petitioner that matter being administrative in nature, appeal and revision were not competent, could not be entertained as the said objection was not raised in the other forums.

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

----Art. 199---Constitutional jurisdiction of High Court---Relief under Constitutional jurisdiction is based on the principle of equity, discretion under said jurisdiction is not exercised where substantial justice has been done though impugned order may be technically incorrect and thus setting it aside would be iniquitous.

Muhammad Naveed Hashmi for Petitioner.

Muhammad Ashraf Qureshi for Respondents Nos. 1 and 2.

Muhammad Jehangir Arshad, A.A.-G. for Respondents Nos.3 and 4.

Date of hearing: 19th February, 2003.

2003 C L C 1252

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ISMAIL ---Petitioner

Versus

Raja MUHAMMAD YOUNIS ---Respondent

Civil Revision No. 353 of 1996, heard on 3rd March, 2003.

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

----O. XXI, R. 32, Ss. 47 & 104---Decree in a suit for injunction--­Disobedience---Appeal---Maintainability of---Application alleging disobedience of decree was allowed by Executing Court---Appeal against such order was dismissed by Additional District Judge holding that it was not maintainable---Validity---Order of the Executing Court was passed in relation to execution of decree---Order was squarely covered by S.47, C.P.C. being a lis between the parties to the suit---Such being so the order of the Executing Court was appealable under S.104(1)(ff), C.P.C.

Muhammada and 3 others v. Allah Bakhsh and others 1998 CLC 757 ref.

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

----Ss. 47, 104(1)(ff) & O.XXI, R.32---Appeal against order passed under O.XXI, R.32, C.P.C.---Maintainability---First Appellate Court came to the conclusion that no appeal was maintainable against an order passed under O.XXI, R.32, C.P.C.---Validity---Appeal was maintainable and First Appellate Court by refusing to exercise jurisdiction vesting in it had acted illegally---Order of the Executing Court was squarely covered by S.47, C.P.C. and is appealable under S.104(1)(ff), C.P.C.

Malik Mahmood Sultan Kalyami for Petitioner.

Muhammad Ilyas Sheikh for Respondent

Date of hearing: 3rd March, 2003.

2003 C L C 1254

[Lahore]

Before Sayed Zahid Hussain, J

Mst. MUSARAT BIBI---Petitioner

Versus

GHULAM MUSTAFA and others---Respondents

Civil Revision No. 839 of 1998, heard on 24th January, 2003.

Specific Relief Act (I of 1877)---

----Ss. 18 & 42---Civil Procedure Code (V of 1908), S.11 --- Suit for declaration---Defendant sold land to plaintiff out of land, which she claimed to have inherited from her deceased father as his sole daughter--­Defendant's entitlement and sale in favour of plaintiff was challenged by collaterals of deceased on the ground that neither deceased was "Shia" by faith nor she was his daughter---Supreme Court on 18-8-1991 had declared defendant to be entitled to half of inherited land---Plaintiff filed suit on 19-12-1991 seeking declaration that he was owner of suit-land by virtue of sale-deed executed by defendant---Defendant while denying factum of sale raised plea of limitation and res judicata---Trial Court dismissed suit, but Appellate Court decreed same---Validity---Parties had jointly contested earlier suit filed by collaterals---Defendant had not denied factum of sale in favour of plaintiff in written statement jointly filed by them in collaterals' suit, wherein she while appearing as witness had admitted such sale---Suit instituted by plaintiff for recognition and perfection of his right and title on basis of sale-deed could not be regarded as time-barred as same had been filed just after passing of judgment by Supreme Court in collaterals' suit---Principle of res judicata could not be applied to parties---Appellate Court had, on correct appreciation of evidence, decreed suit, which judgment did not warrant interference by High Court in revisional jurisdiction---High Court dismissed revision petition in circumstances.

Mst. Hussain Jan and 5 others v. Mst. Channo Bi 1990 CLC 1591; Manzoor Ahmed v. Haji Hashmat Ali through Legal Heirs 2000 CLC 419; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Muhammad Arshad and another v. Mst. Firdausia Begum and 4 others 1994 CLC 1967; Zaighum Salim Khan v. Muhammad Salim Khan and another 1992 MLD 1338; Ziauddin Rafi v. Muhammad Khan and others PLD 1962 (W.P.) Lah. 321 and S. Sibtain Fazli v. Star Film Distributors and another PLD 1964 SC 337 ref.

Syed Sohail Abbas and Ghulam Sabir for Petitioner.

Ch. Abdul Majid for Respondents.

Date of hearing: 24th January, 2003.

2003 C L C 1258

[Lahore]

Before Farrukh Lateef, J

Khan MUHAMMAD SABIR LAL through Legal Heirs and others---Petitioners

Versus

SETTLEMENT COMMISSIONER, MULTAN DIVISION, MULTAN and 2 others---Respondents

Writ Petition No. 11-R of 1984, decided on 23rd October, 2002.

(a) Settlement Scheme No. VI---

----Constitution of Pakistan (1973), Art.199---Civil Procedure Code (V of 1908), S.11---Constitutional petition---Transfer of evacuee property--­Principle of res judicata, applicability of---Order of Settlement Commissioner whereby he remanded the case was challenged by petitioner earlier in Constitutional petition which was dismissed by High Court after holding that Settlement Commissioner was justified in remanding the case on limited question of facts---Said remand order passed by Settlement Commissioner having attained finality, could not be challenged again in subsequent Constitutional petition on principle of res judicata.

(b) Settlement Scheme No. VI---

----Constitution of Pakistan (1973), Art.199---Constitutional petition--­Transfer of evacuee property---Decision on remand of case---Case was decided by Deputy Settlement Commissioner on remand---Petitioner had challenged order passed by Deputy Settlement Commissioner contending that he had passed order without adverting to evidence on record and without inspecting site and that said order was passed on erroneous assumption of facts, surmises, conjectures and was passed beyond the scope of remand order---High Court declined to consider contentions of petitioners because Constitutional petition filed by petitioner was incompetent inasmuch as petitioner had the remedy of assailing the order of Deputy Settlement Commissioner before Additional Settlement Commissioner or Settlement. Commissioner which remedy was not availed of by petitioner---Constitutional petition was also barred by time as it was filed after a period of about two years from passing of impugned order without assigning any reason for the said delay---High Court in its extraordinary jurisdiction, refused its aid to stale claim where claimant had acquiesced by sleeping over his right for such a long period.

Ch. Ehsan Ullah for Petitioners.

Syed Mohtashim-ul-Haq for Respondents Nos. 1 and 2

Kanwar Akhtar Ali for Respondent No.3.

Date of hearing: 25th September, 2002.

2003 C L C 1262

[Lahore]

Before Muhammad Khalid Alvi, J

Mst. MUAZAMA BATOOL---Petitioner

Versus

DISTRICT JUDGE, D.G. KHAN and 2 others---Respondents

Writ Petition No. 4213 of 2001, heard on 28th November, 2002.

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

----S. 5, Sched. & S.14---Dissolution of-Muslim Marriages Act (VIII of 1939), S.2---Dissolution of marriage on ground of Khula' --­Consideration of Khula'---Appeal, competency of---Suit for dissolution of marriage filed by wife against husband was decreed by Family Court on basis of Khula' and consideration of Khula' was found to be the house which was purchased by husband in the name of wife as her dower---Family Court held that husband would be considered the owner of said house---Judgment and decree passed by Family Court were assailed by wife through appeal, but her appeal was dismissed on the ground that same was not maintainable---Appeal was not available in a case of a decree for dissolution of marriage except in case falling under cl. (d) of Item No.(viii) of S.2 of Dissolution of Muslim Marriages Act, 1939, but present case of wife did not fall in the said category---Family Court having attached a condition, whereby a house given by husband to wife in consideration of her dower had also been adjudicated upon and same had been determined as a consideration of Khula', to that extent order of Family Court would fall within parameter of S.14(1) of West Pakistan Family Courts Act, 1964 which had provided appeal against judgment and decree passed by Family Court---Decree of dissolution of marriage was not being challenged through appeal in the present case, but it was only the condition which was being assailed through said appeal---Case, in circumstances would not fall under S.14(2)(a) of West Pakistan Family Courts Act, 1964---Dower was a right of wife and she could claim if not paid or given to her, through a separate suit and if such a suit for recovery of dower was decreed or dismissed, same was appealable.

PLD 1976 Lah. 1327; 1989 ALD 330(1); 1991 CLC 1328; 1999 MLD 3090 and PLD 1980 Pesh. 246 ref.

Muhammad Amir Bhatti for Petitioner.

Syed Muhammad Amin Shah for Respondent No.3.

Date of hearing: 28th November, 2002.

2003 C L C 1265

[Lahore]

Before Sayed Zahid Hussain, J

MUHAMMAD LATIF---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SHORKOT, DISTRICT JHANG and another ---Respondents

Writ Petition No. 1443 of 2003, decided on 10th March, 2003.

(a) Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan (1973), Act. 199---Constitutional petition---Custody of minor---Welfare of minor---Guardian Judge handing over custody of minor boy to his father, on the ground that father being natural guardian of the minor, right to custody vested in him as the minor had crossed the age of seven years---Appellate Court reversed findings of the Guardian Judge and handed over the custody of minor to his mother taking the view that the minor was obtaining worldly as well as religious education and was deeply associated with his mother for the last so many years and that it would not be in the welfare of the minor to separate him from his mother--­Validity---Supreme consideration in a matter/dispute of custody of minor was welfare of the minor---Minor in custody of mother was acquiring good education with distinction in the class having good physique and health and responded to the Court questions with confidence---Order of handing over custody of minor to his mother, by Appellate Court was neither perverse nor illegal---Constitutional petition was dismissed.

Surraya Bibi v. Abdur Rashid 1980 CLC 785; Faiz Bakhsh v. Mst. Sakina 1980 CLC 1989; Mst. Rashida Bibi v. Muhammad Ismail 1981 SCMR 744; Mst. Naheed Abbas v. Syed Zubair Hussain Shah and others 1989 ALD 446; Mst. Zahran v. Umaar Draz and others NLR 1993 Civil 125; Muhammad Iqbal v. Additional District Judge, Bhalwal and 2 others 2000 CLC 108 and Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838 ref.

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

----Art. 199---Guardians and Wards Act (VIII of 1890), S.25--­Constitutional petition---Evidence recorded in the case by Guardian Judge was not placed on record---Effect---Was not possible to examine correctness of order of Appellate Court whether the same was result of any misreading or non-reading of evidence.

(c) Guardians and Wards Act (VIII of 1890)---

----S. 25---Custody of minor---Welfare of minor---Minor (boy) was being brought up by his mother properly and adequately---Minor quite vehemently expressed his desire and preference to continue to live with his mother---Preference of minor being one of considerations in such cases, mother was not deprived of his custody.

(d) Guardians and Wards Act (VIII of 1890)---

----S. 25---Custody of minor---Father of minor had not so far taken another wife---Father should nave access to the minor son and contribute in his bringing up---Personal grudges and differences in the parents should not be allowed to have adverse effects on the future of minor--Parties were living in the neighbourhood---In the interest and welfare of minor, minor-would visit his father on the weekend, who should return the minor next evening voluntarily.

Javed Mahmood Pasha for Petitioner.

Malik Abdul Khaliq Awan for Respondents.

2003 C L C 1268

[Lahore]

Before Farrukh Lateef, J

NOOR MUHAMMAD----Petitioner

Versus

DISTRICT JUDGE and others---Respondents

Writ Petition No.2998 of 1991, decided on 12th March, 2003

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.2(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Relationship of landlord and tenant denied by the petitioner---Petitioner's case was that he had been in possession of property on the basis of registered deed executed by a person who had been issued the Permanent Transfer Deed---Registered deed pertained to a different house .having nothing to do with the disputed house--­Petitioners were not in possession of the disputed house as tenants within the meaning of S. 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and had been paying rent to the Settlement Authorities or any other officer authorized or permitted by the Central or Provincial Government---Impugned judgment suffering from misreading of evidence, erroneous assumption of facts, misconstruing and misinterpretation of law, was quashed.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----S.2(6)---Tenants of an evacuee property---Only such occupant of evacuee house would be deemed to be a tenant of that transferee who had obtained possession of that house in pursuance of an order passed on or before 20th day of December, 1958 by the Rehabilitation Authority or any other officer authorized or permitted by the Central .or Provincial Government.

Sardar Tariq Sher Khan for Petitioner.

Athar Rehman Khan for Respondents

Date of hearing: 19th February, 2008

2003 C L C 1272

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

NUSRAT BIBI and others---Petitioners

Versus

NAILA HANIF and others---Respondents

Writ Petition No. 1130 of 2003, decided on 24th April, 2003.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Eviction petition---Power of attorney showed that special attorney was delegated with the powers to engage a counsel in eviction petition; to pursue the eviction petition; to draw the rent submitted by the tenant; to file an appeal or revision but no power was delegated to the special attorney to appear and give statement in evidence on behalf of the principal---When no authority was given to the attorney to appear and give statement in evidence on behalf of the principal he had specifically been debarred to do so and he had rightly admitted in his cross­-examination that he was appearing as an independent witness---Rent Controller could not restrain a party to appear as his or her witness when no delegation of power was given to anyone to make a statement on his/her behalf.

Qamar Zaman v. Municipal Corporation, Mirpur and others PLD 2001 SC (AJ&K) 18) distinguished.

Ch. Mubashar Nisar Khan and Mian Maudood Akbar for Petitioners.

2003 C L C 1274

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SHAFIQUE---Petitioner

Versus

SAEED AKTHAR---Respondent

Civil Revision No. 446 of 1991, heard on 15th February, 2002.

Civil Procedure Code (V of 1908)---

----Ss. 115, 12(2), 104 & O.XLIII, R.1---Application under S.12(2), C.P.C. having been dismissed for non-prosecution, application for restoration was also dismissed---Applicant filed appeal against dismissal order passed by Trial Court---Appellate Court dismissed appeal holding that appeal was not competent---Applicant requested for conversion of appeal into revision, but request of applicant was turned down holding that even if the decision of Trial Court was incorrect, revision was not competent---Validity---Trial Court having dismissed application for restoration of application filed under S. 12(2), C.P.C., such order of dismissal was not appealable under S.104, C.P.C. read with O.XLIII, R.1, C.P.C. as appeal was provided only against an order refusing to restore the suit and not an application---Judgment of Appellate Court to that extent was correct, but order of Appellate Court whereby request of applicant for conversion of appeal into revision was turned down holding that incorrect decision of Trial Court could not form subject of revision petition, was incorrect and liable to be struck down for the reason that right to invoke exercise of revisional jurisdiction, was not a privilege, at the most a valuable right---Appellate Court ought to have first converted appeal into revision and then should have decided as to whether interference with order before it was possible or not--­Finding of Appellate Court that incorrect decision of Court below could not form subject-matter of revision, was wholly unfounded--­Order, of Appellate Court being not sustainable, was set aside in revision by High Court with direction that appeal filed before Appellate Court would be treated as revision and would be decided accordingly.

Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139 and Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

Nemo for Petitioner.

Masood Abid Naqvi for Respondent No. 10.

Nemo for the Remaining Respondents.

Date of hearing: 15th February, 2002.

2003 C L C 1278

[Lahore]

Before Muhammad, Khalid Alvi, J

FARVA SAEED---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Health, Civil Secretariat, Lahore and 2 others---Respondents

Writ Petitions Nos. 9070, 9090, 9047, 9064, 9083, 9058, 9115 and 9126 of 2002, heard on 19th November, 2002.

(a) Educational institution---

---- Admission in Medical Colleges---Equal protection of law--­Candidates appeared in F.Sc. Pre-Medical Examination and had qualified their examination by securing either 65% or more marks, but less than 70% marks---Authorities issued a Prospectus for admission in Medical Colleges in Punjab on specified date and a prerequisite was also given in the said Prospectus that only those candidates who had secured 70% or more marks in F.Sc. Pre-Medical Examination would be entitled to appear in entry test---Said change in requirement of 65% to 70% having been brought in after candidates had appeared in F.Sc. Examination, they had been taken by surprise after announcement of their result in Examination---Chairman, Admission Board had given concessional statement before the High Court whereby some candidates having less marks than 70% up to range of 65% had been granted permission to join entry test---Such concessional statement which had brought a change in Policy should have been given a wide publicity through Press, radio and television so that every candidate could have fair opportunity to compete with the others, but same had not been done---Depriving some candidates due to certain managerial problems of Authority, could hardly be a judicial decision---Last year target for appearance in entry test was 65% and no change was brought in that target throughout the year---Bringing about change after examination, would entirely affect rights of candidates as they were not apprised of any change to be brought in the admission policy---If said policy was to be changed, it could have been changed well in time so that candidates could know as to what target they were required to achieve---Admission in medical college though was not a right, but to compete for admission, was a right and laying down certain criteria/qualification to compete, was -the right of Authority, but that right should only be exercised in accordance with law, fairplay and well in time giving proper notice to competitors/candidates---Authorities were directed by High Court to fix a reasonable date through wide publicity calling upon all eligible candidates who had secured 65% or more marks to submit their application forms for appearance in entry test to be held on specified date.

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

----Arts.4 & 25---Protection of law---Rights of citizen---Not necessary for every citizen to approach the Court for any relief or his right---Entire structure of State was built with a sole object to protect the rights of citizen of the country---Every citizen should be given his due right at his door-step and it was only when a right was denied, then he had to approach the Court---Such course would create a bad impression on the new generation that they could not get their right as a matter of right, but for every right they would have to knock at the door of the Court---Even otherwise discriminative decisions were violative of principle of good governance.

Sardar Altaf Hussain Khan for Petitioner.

Malik Muhammad Qasim Khan, A.A.-G. for the State.

Date of hearing: 19th November, 2002.

2003 C L C 1284

[Lahore]

Before Abdul Shakoor Paracha, J

Sheikh MUHAMMAD AKHTAR---Appellant

Versus

SHAHAB-UD-DIN---Respondent

Regular Second Appeal No. 1 of 1998, heard on 22nd October, 2002.

(a) Interpretation of documents---

---- No clause of agreement arrived at between parties would be read in isolation, but agreement was to be read as a whole---Court had to keep document alive and binding according to the intention of parties---In case of inconsistency, effect must be given to that part which was calculated to carry into effect the real intention of the parties as gathered from the instrument as a whole and that part which would defeat it, must be rejected.

House Building Finance Corporation v. Shahinshah Humaymi Cooperative House Building Society and others 1992 SCMR 19 and Mst. Aisaha Bibi and 5 others v. Ghulam Abbas and 5 others 1993 SCMR 804 at 805 ref.

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

---Ss. 12 & 17---Suit for specific performance of agreement of sale--­Agreement of sale, enforcement of---Where agreement was not treated as an agreement to sell, no question would arise of its enforcement in its entirety or in parts under S.17 of Specific Relief Act, 1877.

Mst. Noor Jehan and others v. Muhammad Rafique and others 1995 CLC 43 ref.

Sh. Nasir Saeed for Appellant.

Raja Khalid Ismail Abbasi for Respondent.

Date of hearing: 22nd October, 2002.

2003 C L C 1288

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. QUDRAT BIBI and 6 others---Petitioners

Versus

GHULAM SHABBIR HUSSAIN SHAH---Respondent

Civil Revision No.234/D of 1996, heard on 31st October, 2002.

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

----S.8---Qanun-e-Shahadat (10 of 1984); Art. 47---Suit for joint possession---Plaintiff had claimed that 1/6th share of the suit-land was mutated to favour of one 'S' misrepresenting her to be the mother of the predecessor-in-interest of the parties to the suit and had prayed that gift made by said 'S' in favour of one of the defendants be declared illegal--­Appellate Court had decreed the suit of the plaintiff which had been dismissed by the trial Court---Validity---Onus to prove in affirmative that mother of the predecessor-in-interest of the parties was one 'S' was upon the defendants who had claimed so---One of the defence witnesses expressed his ignorance of this fact while the other was effectively rebutted by the two prosecution witnesses including the plaintiff---Impugned document which was the previous statement of a defendant in a former judicial proceedings, was produced by the counsel for the plaintiff without any objection from the defence---Defence witness examined subsequently was duly confronted with the said document and had admitted that another civil suit had been filed and was proceeded within the civil Court, wherein his brother to whom the said former statement was attributed, pursuing the case for all the present defendants, appeared as a defence witness and had stated before the Court, 'C' was real mother of the said predecessor-in-interest of the present parties--­Defence had withheld this witness without any explanation and did not produce him before the Court---Impugned statement fully qualified to be relevant under Art.47 of the Qanun-e-Shahadat, 1984---Order of the Appellate Court did not suffer from any legal infirmity and was consequently maintained.

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

----Art.47---Scope and applicability.

Article 47 of the Qanun-e-Shahadat, 1984 provides that the evidence given by a witness in judicial proceeding is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of facts which it states, when the witness, inter alia, is kept out of the way by the adverse party, provided, that the proceeding was between the same parties or their representatives-in-interest, the adverse party in the first proceeding had the right and opportunity to cross-examine and that the question in issue were substantially the same in the first as in the second proceeding.

Hafiz Saeed Ahmed Sheikh for Petitioners.

Nemo for Respondent.

Date of hearing: 31st October, 2002.

2003 C L C 1292

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

MUHAMMAD LATIF---Petitioner

Versus

MUHAMMAD AZAM --- Respondent

Civil Revision No.648 of 2003, decided on 24th April, 2003.

(a) Stamp Act (II of 1899)---

----Ss. 33 & 35---Qanun-e-Shahadat (10 of 1984), Art.91---Examination and impounding of instrument----Instrument not duly stamped was inadmissible in evidence---Object of Ss.33 & 35, Stamp Act, 1899 elucidated.

The very objective of S.33 of the Stamp Act, which is kept in view is to stop an individual to escape from the responsibility which the law imposed upon the executant of the instrument to stamp duty and the officer should keep that object in view when dealing with all instruments coming before him and should not admit an improperly stamped paper in evidence and this is also the object of section 35-A. While reading both these sections 33 and 35-A it becomes clear that intention of Legislature is not to make an instrument invalid. The intention is merely to protect the public revenue' and not to interfere in the commercial dealings and rules by invalidating instrument which is vital to the smooth flow of trade and commerce. As a document is admitted in evidence only when it is proved in accordance with the provisions of Article 91 of the Qanun-e­-Shahadat 1984, mere placing a document does not mean that the document has been admitted in evidence, therefore, the matter is within the exclusive jurisdiction, of the concerned Judicial Officer to impound the same.

Habib Bank Ltd. v. Shahbaz Dino Soomro NLR 1989 TD 539 distinguished.

(b) Stamp Act (II of 1899)---

----Ss.33 & 35---Stamps which were visibly crossed; only the middle stamp which was crossed but line was not in the middle by itself was not sufficient to invalidate the instrument.

Habib Bank Ltd. v. Shahbaz Dino Soomro NLR 1989 TD 539 distinguished.

Malik Noor Muhammad Awan for Petitioner.

2003 C L C 1294

[Lahore]

Before Farrukh Lateef, J

ABDUL SATTAR and others---Petitioners

Versus

Mst. SARDAR BEGUM---Respondent

Civil Revision No. 25 of 1990, decided on 11th March, 2003.

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

----S. 8---Suit for possession on the basis of title ---Demarcation--­Encroachments by the defendant---Plaintiff had purchased a piece of land vide registered sale-deed and the transaction was entered in the Revenue Record vide mutation---Allegedly the defendant trespassed and unlawfully occupied a portion of the said land--Suit for possession of the plaintiff was decreed by Trial Court and decree was affirmed by Appellate Court---Contention was that mutation did not create title in favour of plaintiff and the mutation was not sanctioned according to registered sale-deed; 'Tattima' was prepared at a belated stage and the report of Local Commissioner who was a Patwari was allegedly not considered by the Appellate Court---Validity---Mutation was sanctioned according to registered sale-deed and 'Tattima' was prepared at its back from the beginning and the report of Local Commissioner was prepared without locating any permanent point (Pukhta Mauqa) without consulting any 'Mausaavi' or 'Shajrah Parchi' but was approximately made on the basis of photocopies of few pieces of 'Shajrah Parchi' and ultimately no definite finding was given therein---Concurrent findings of Courts below which were not only based on evidence but were also supported by sound and plausible reasoning, were not interfered with by the High Court.

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

----Art. 132---Examination-in-chief---Cross-examination---Witness not cross-examined at all, implies that his testimony stood admitted.

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

----S 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of fact by two Courts below regarding encroachment on a land which are based on evidence cannot be successfully assailed in revision.

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

----O. XLI, R.27.---Application for additional evidence to produce a copy of Jamabandi---Non disposal of said application by the Appellate Court---Validity---Till the final arguments on the case, counsel had not requested the Court for disposal of the said application nor anything was said about the same at the time of addressing final arguments on the appeal---Such conduct of petitioners, implied that they were not interested in pursuing the same---No allegation was levelled in revision that during final arguments the petitioner's counsel had also drawn the attention of the Appellate Court towards that application but the Court did not take notice of the same ---Jamanbandi sought to be produced was in respect of, a different Khasra number and the Khata in which encroachment was made ---Effect---Jamanbandi in question was irrelevant and no prejudice was caused to the petitioner by non-consideration of said document by the Appellate Court.

Amin ud Din Khan for Petitioners.

Nemo for Respondent.

Date of hearing: 18th February, 2003.

2003 C L C 1301

[Lahore]

Before Ch. Ijaz Ahmad, J

HOMOEOPATHIC DOCTORS PHARMACEUTICAL AND CHEMIST ASSOCIATION OF PAKISTAN, LAHORE---Petitioners

Versus

GOVERNMENT OF PAKISTAN MINISTRY OF HEALTH through Federal Secretary, Islamabad and 2 others---Respondents

Writ Petition No. 2449 of 2002, heard do 6th March, 2003.

Unani, Ayurvedic and Homoeopathic Practitioners Act (II of 1965)---

----S. 5(a)---Unani, Ayurvedic and Homoeopathic Practitioners Rules, 1980, R. 32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Name of nominees forwarded by the Department to the concerned Ministry after expiry of stipulated period through two letters, recommending and forwarding the names through the first letter and forwarding but not recommending the names through the second one--­Ministry appointed the member on the basis of the second letter--­Validity---Violation of stipulated period as prescribed by Provisions of S.5(a) of Unani, Ayurvedic and Homoeopathic Practitioners Act, 1965 read with R.32 of Unani, Ayurvedic and Homoeopathic Practitioners Rules, 1980, which was mandatory in nature, was against the principle of law that `when a thing was to be done in a particular manner it must be don: in that way'---Appointment made in such a manner was against the spirit of law.

Dr. Haq Nawaz v. Balochistan Public Service Commission 1996 CLC 58 fol.

S.M. Masud for Petitioner.

Shaukat Ali Maher for Respondent No.3.

2003 C L C 1306

[Lahore]

Before Sayed Zahid Hussain, J

KHAAVIR SAEED RAZA---Petitioner

Versus

WAJAHAT IQBAL---Respondent

Civil Revision No. 83 of 2003, heard on 6th Mach, 2003.

Civil Procedure Code (V of 1908)---

---S. 36---Execution of decree---Provisions regarding execution of decree---Applicability to orders---Scope---Suit for rendition of accounts was disposed of in terms of a compromise deed and no decree sheet was prepared---Execution petition was dismissed by Executing Court---First Appellate Court set aside the order and directed the Executing Court to proceed with the execution proceedings in accordance with law--­Compromise was admitted which became part of the order which stipulated the withdrawal of the suit by the respondent---Section 36, C.P.C. relating to the execution of decree was also applicable to the order---Even if there was no decree in existence an order disposing of the suit in terms of the compromise was very much binding and operative qua the parties.

Sindh Road Transport Corporation v. Major (Retd.) S.M. Ali Zaheer Khan 1991 SCMR 425; (Babu) Sheonandan Prasad Singh and others v. Hakim Abdul Fateh Muhammad Raza and another AIR 1935 PC 119; Laraiti Devi v. Sia Ram AIR 1957 Allahabad 820; Hassan Masud Malik v. Dr. Muhammad Iqbal and others 1995 SCMR 766; Mehar Zulfiqar Ali Babu and 3 others v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and others 1997 SCMR 117; West Pakistan Paint Mills (Pvt.) Ltd. v. Muhammad Ashraf Shaqufta, Additional District Judge, Lahore and others 1998 SCMR 380 and Muhammad Ibrahim v. Muhammad Munir Bhutta C.P.L.A. No. 1985 of 1996 ref.

(b) Jurisdiction ---

----If the Court had jurisdiction to make an order it had necessarily the power and jurisdiction to enforce the same and the law does not allow its machinery to be clogged in this respect.

Kilachand Devchand and Co. v. Ajodhyaprasad Sukhanand and others AIR 1934 Bombay 452 and Ranjit Singh Hazari and others v. Juman Meah and another PLD 1961 Dacca 842 ref.

Muhammad Shahzad Shaukat for Petitioner.

Muhammad Javed Hafeez for Respondent.

Date of hearing 6th March, 2003.

2003 C L C 1310

[Lahore]

Before Farrukh Lateef, J

Dr. RUQIA SHAUKAT---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE and others---Respondents

Writ Petition No. 948 of 2003, decided on 12th March, 2003.

(a) Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Maintainability---Custody of minors---Father's application regarding custody of minor son and daughter aged 14 and 11 years respectively under S.25 of Guardians and Wards Act, 1890 was allowed by Guardian Judge and his order was affirmed by the Appellate Court--­Validity---Assessment of evidence and determination of the interest and welfare of the minors regarding their custody was the function of the Guardian Court and Appellate Court which were vested with exclusive jurisdiction to decide such matters---Power of High Court under Constitutional jurisdiction was not analogous to those of Appellate Court---High Court could quash an order passed by the subordinate Court as without lawful 'authority but could not substitute its own judgment for that of the subordinate Court by re-apprising and re­examining the evidence on the ground that another view was possible on the same evidence---Constitutional petition was dismissed in circumstances.

Mst. Salima Bibi v. Sharif Hussain 1979 CLC 417; Abdur Rashid v. Tasneem Qausir NLR 1980 Civil Lah. 64; Kalsoom Bibi v. Muhammad Saeed NLR 1980 AC 483 Lah. and Bashir Ahmad v. Mst. Rehana 1978 SCMR 192 SC. ref.

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

----Art.199---Constitutional Jurisdiction of High Court ---Scope--­Findings on question of fact recorded by Courts below could neither be substituted nor opinion regarding adequacy of evidence could be given in Constitutional jurisdiction and concurrent findings could not be successfully assailed under Constitutional jurisdiction.

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

----Art. 199---Constitutional petition---Non-filing of copy of evidence with the writ petition---Effect---Not possible to consider if any material piece of evidence was overlooked or misread by any of the two Courts below.

(d) Guardians and Wards Act (VIII of 1890)---

----S. 25---Custody of minors--Default of mother---Maternal grandmother is entitled to the custody of a girl who has not attained puberty while father is entitled to the custody of a male child over the age of 7 years and welfare of the minor is to be presumed with the person who is entitled to the custody---Such presumption is rebuttable and it can be shown that in fact, welfare of minors lay with the person other than the one who is entitled to the custody under Personal Law and Court can refuse custody to the person who is entitled to it---Right of custody is not an absolute right and welfare of minor is of paramount consideration---Guardians and Wards Act, 1890 does not provide that custody of minors be decided on the basis of different schools of jurisprudence with reference to their age and custody.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---High Court is not competent to undertake the exercise of reappraising the evidence in order to come to its own conclusion---Finding on question of fact recorded by Courts below cannot be substituted.

(f) Guardians and Wards Act (VIII of 1890)---

----S.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Choice of the minors---Objection was that the Courts below did not obtain preference or choice of the minors--­Validity---Section 17(3) of Guardians and Wards Act, 1890 provides that if the minor is old enough to form an intelligent preference the Court may consider that preference---Further held by using the word "may" in Legislature has indicated that it is not imperative to consult the minor.

(g) Words and phrases---

------ May consider"--Connotation.

(h) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction of High Court ---Scope--­Interference in Constitutional jurisdiction is not warranted if the impugned orders were passed by Courts of competent jurisdiction, it was within their exclusive jurisdiction to believe or disbelieve evidence and plausible reasons are given in the impugned order and the judgment.

Mian Habid ur Rehman Ansari for Petitioner.

2003 C L C 1315

[Lahore]

Before Sayed Zahid Hussain, J

Mirza BASHIR MUHAMMAD and 10 others through Legal Heirs---Petitioners

Versus

DEPUTY COMMISSIONER/DISTRICT COLLECTOR OKARA and 6 others---Respondents

Amended Writ Petition No. 15579 of 1996, heard on 11th March, 2003.

Constitution of Pakistan (1973)---

----Arts. 24 & 199---Constitutional petition---Protection of property rights---Land of the petitioners was proposed to be utilized for constructing a Stadium by the Government---Petitioners agreed for giving their land subject to the grant of alternate land---Exchange of land was said to have been agreed between the District Administration and the petitioners but was not given effect to in the Revenue Record despite the affirmative report by the field staff---Constitutional petition---Deputy Commissioner admitted the acquisition of land but contended that there was nothing on the record to show as to whether any commitment for providing alternate land or compensation with regard to standing crops etc. was ever made by the Competent Authority---Claim of the petitioner for the grant of alternate land in lieu of his ownership, however appeared to be justified---Board of Revenue was of the view that the petitioners should get in touch with the Provincial Sports Board for finalizing the acquisition proceedings and compensation to be determined by the District Collector---Validity---Course envisaged in Art.24 of Constitution of Pakistan, was not adopted and process was not followed for taking over the property---Petitioners were paid no compensation whatsoever for the same---Deputy Commissioner had recommended the case of the petitioners while the petitioners had been clamouring that there was understanding and promise held out to them for alternate land to be given in lieu of their land used for the construction of Stadium--­View of Board of Revenue was purely unrealistic and technical and it could not be conceived that Board of Revenue would be helpless in resolving such an issue---Constitutional petition was allowed and the case was entrusted to Board of Revenue (Colonies Department) for resolving the matter.

Syed Kaleem Ahmed Khurshid for Petitioners.

Muhammad Hanif Khatana, Addl.-A.-G. for Respondents.

Date of hearing: 11th March, 2003.

2003 C L C 1318

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD AFZAL KHAN---Petitioner

Versus

MUHAMMAD SADIQ ---Respondent

Civil Revision No. 4 of 2003, decided on 21st February, 2003.

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

----O. XXI, R. 32---Specific Relief Act (I of 1877), S.42---Execution of decree passed in a declaratory suit---Objection petition---Suit of the plaintiff for declaration regarding suit property was disposed of on the statement of the defendant that he would not make any construction on the suit property---Application of the plaintiff moved under O.XXI, R.32, C.P.C. was accepted up to the First Appellate Court---Contention of the defendant was that no decree was ever passed against him and order of execution was illegal---Validity, only a .decree for specific performance of the contract or injunction if passed by the Court was to be executed provided the judgment-debtor wilfully failed to obey the same---Proceedings could be initiated only where a party against whom a decree had been passed, and in the present case no such decree against the defendant had been passed and in fact the defendant had made a statement and on his undertaking the suit was disposed of---Contention of the defendant was upheld in circumstances.

Muhammad Ashiq v. Razia Begum PLD 1982 Lah. 459 and Muhammad Fazil's case 1999 YLR 350 distinguished.

Razzaq A. Mirza for Petitioner.

Sh. Zakir Hussain for Respondent.

2003 C L C 1328

[Lahore]

Before Maulvi Anwarul Haq, J

Hakeem ABDUL AZIZ KHAN---Appellant

Versus

DOST MUHAMMAD and others---Respondents

Regular Second Appeal No. 17 of 1985, decided on 17th April, 2002.

Specific Relief Act (I of 1877)---

----S. 12---Transfer of Property Act (IV of 1882), S.41---Suit for specific performance of agreement, of sale---Claim of plaintiff was that defendant being owner of suit-land had executed an agreement whereby he agreed to sell the suit-land to him for a consideration and after receiving earnest money had delivered possession of suit-land to the plaintiff and had promised that he would execute sale-deed after receiving balance amount---Plaintiff had alleged that defendant having failed to perform his promise, he had to file suit for specific performance of agreement---Defendant denied execution of sale agreement, receipt of earnest money and handing over possession of suit-land to the plaintiff--­Another person had claimed that he was bona fide purchaser of suit-land from the defendant---Suit was decreed by the Trial Court, but judgment and decree passed by Trial' Court was set aside in appeal by Appellate Court holding that existence of agreement to sell was not proved by the plaintiff---Plaint did not refer at all to any oral or written agreement arrived at between plaintiff and defendant---In absence of any explanation on the part of plaintiff in that respect, Appellate Court had rightly concluded that plaintiff had failed to prove any sale agreement in his favour---Contention of plaintiff that sale of suit-land in favour of another person by defendant was void as the other person was aware of the sale agreement arrived at between plaintiff and defendant, was repelled because plaintiff, could not prove execution of sale agreement in his favour---Plaintiff had himself admitted that at the time of filing the suit, the other person was in possession of suit-land and it was not his case that possession was taken over by the said other person from him, ---Other person therefore, had no knowledge of alleged sale agreement---Appellate Court, had rightly dismissed the suit of the plaintiff.

Ch. Khursheed Aimed for Appellant.

M. Zain-ul-Abidin and Saif-ul-Haq Ziay for Respondents.

Date of hearing: 17th April, 2000.

2003 C L C 1339

[Lahore]

Before Sayed Zahid Hussain, J

AHMAD DIN---Petitioner

Versus

SHAMA BIBI and 3 others---Respondents

Writ Petition No. 110 of 2002, heard on 25th March, 2003.

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

----Preamble---Object of establishment of Family Courts was to achieve the expeditious settlement and disposal of disputes relating to "marriage" and "family affairs".

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

----S. 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles by the lady against a person in whose house she and her husband lived for some time immediately after their marriage---Person against whom the suit was filed (petitioner) had stated that he had only arranged their marriage and that later on his relations having become strained with the spouses, they shifted to the house of their parents and also took away the articles of cowry--­Petitioner contended that the two Courts below had acted illegally who had ignored the admitted fact of the matter that the petitioner had no connection whatsoever with the spouses except that he had arranged their marriage by spending lot of money from his pocket and submitted that the findings by the two Courts below in the matter had hardly any sanctity which needed to be reversed---Validity---Testimony of the plaintiff lady was vague, fraught with inconsistencies and lacked necessary supporting proof---Preponderance of the evidence, the totality of the circumstances and the background of the case when kept in view, the inevitable conclusion was that it was a move designed by the spouses on their relations becoming sour and strained with the petitioner--­Husband of the lady was not impleaded though in the context and the peculiar background he was a necessary party and no effective determination could be made in his absence---Suit of the lady thus could have been dismissed for that reason alone but High Court, in order to bring an end to the litigation between the parties and solve the controversy, while entertaining the Constitutional petition suspended the operation of the impugned judgment and decree of the lower Courts subject to making deposit of specified amount by the petitioner with the observation that the lady should feel content with the amount offered to her---Constitutional petition was disposed of accordingly.

Messrs Sima Fabrics Ltd. v. Authority under Payment of Wages Act, Gujranwala and 3 others 1981 PLC 498 ref.

Muhammad Faiz Kharal for Petitioner

Muhammad Khalid Dogar for Respondent No 1.

Nemo for the Remaining Respondents.

Date of hearing: 25th March, 2003.

2003 C L C 1353

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL REHMAN and others---Petitioners

Versus

ALLAH DITTA---Respondent

Civil Revision No.350 of 1995, heard on 15th October, 2002.

Punjab Tenancy Act (XVI of 1887)---

----Ss. 6 & 38---Specific Relief Act (I of 1877), S.42---Suit for declaration---Claim of plaintiffs was that suit-land was owned by them and that defendant had nothing to do with the same---Plaintiffs had alleged that mutations attested in respect of suit-land for conferment of proprietary rights in favour of defendant were illegal and void--­Defendant refuted the claim of plaintiffs contending that mutations had been validly attested---Trial Court, after framing issues and recording evidence of parties dismissed the suit and order of Trial Court was affirmed by the Appellate Court---Evidence on record had shown­ that at least for three generations records were amended to enter defendant, his father and his grandfather to be tenant in suit-land--­Defendant was continuously recorded as occupancy tenant and no plea or evidence was on record to the effect that he or his predecessors-in­interest ever abandoned tenancy within meaning of S.38 of Punjab Tenancy Act, 1887---No ground having been made out by petitioner for interference with concurrent judgments and decrees of Courts within ambit of S.115, C.P.C., revision filed against concurrent judgments and decrees of Courts below, was dismissed in circumstances.

Fateh Khan through his Legal Heirs v. Mst. Begum Jan and others 1993 SCMR 135 and Baz and others v. Yar Muhammad 1981 SCMR 569 ref.

Muhammad Ilyas Sheikh for Petitioners.

Sh: Istajabat Ali for Respondent.

Date of hearing: 15th October, 2002.

2003 C L C 1367

[Lahore]

Before Sayed Zahid Hussain, J

Messrs ILAM DIN ABDUR RAHMAN KARYANA MERCHANTS and 12 others---Petitioners

Versus

Dr. IBRAR ELAHI MALIK and 2 others---Respondents

Writ Petition No.361/R of 1986, heard on 26th March, 2003.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----Ss. 3(1) & 2---Scheme for the Management and Disposal of Available Urban Properties, 1977, para. 31(1) [as amended on 28-7-1984]--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Auction of available urban property---Revision against the order of Notified Officer was only competent qua an order of confirmation or rejection of an auction---Notified Officer, in the present case, had passed an order in pursuance of the direction of the Supreme Court which was neither revisable nor any revision was competent against the same after the repeal of Evacuee Laws---Order passed in revision having been passed in an incompetent proceedings, was wholly without jurisdiction and without lawful authority.

Ch. Shahbaz Khurshid for Petitioners.

Nemo for Respondents.

Date of hearing: 26th March, 2003.

2003 C L C 1373

[Lahore]

Before Jawwad S. Khawaja, J

NOOR DIN and 2 others---Petitioners

Versus

SALEEM AHMED and 6 others--- Respondents

Civil Revision No. 1000 of 1999, heard on 15h April, 2003.

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

---Art. 89(5)---Public document of foreign country ---Proof--Essential--­Conditions set out in Art. 89(5) of the Qanun-e-Shahadat, 1984 must be satisfied before a copy of the foreign public document becomes admissible in evidence before a Court in Pakistan.

Muhammad Usman v. Lal Muhammad and others PLD 1975 Kar. 352; Fazal Hussain and others v. Sawar and others 1985 CLC 1157 and Mahboob Ali and others v. Sharifan Bibi and others 1991 CLC 1201 fol.

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

----Art.89(5)---Public document---Admissibility ---Trial Court should have decided the question of admissibility of the documents, under objection, at the time when objection was raised by the respondents---If Trial Court had given its decision holding that the documents were inadmissible in evidence on account of non-fulfilment of the conditions laid down in Art. 89(5) of Qanun-e-Shahadat, 1984 the petitioners could have sought time to produce admissible copies of documents. "

Sh. Fazal Elahi Shahid for Petitioner.

Ayub Hassam for Respondent No. 1.

Respondents Nos.2 to 7: Ex parte.

Date of hearing: 15th April, 2003.

2003 C L C 1377

[Lahore]

Before Mian Hamid Farooq, J

GHULAM MUHAMMAD ---Petitioner

Versus

Syed FARRUKH ANWAR---Respondent

Civil Revision Petition No.593/D of 1991, heard on 18th April, 2003.

(a) Adverse possession---

---- Defendant taking plea of allotment as well as of adverse possession regarding title of the property---Both pleas being contradictory and irreconcilable to each other, suit was liable to be decreed on this short ground.

(b) Adverse possession---

---- Pleas of ownership and adverse possession could not stand together, a person who asserts ownership over a certain property by purchase, would not be legally justified at the same time to say that his occupation of the property was hostile or adverse against the real owner.

Mira Khan v. Ghulam Farooq and others 1988 SCMR 1765; Ghulam Qadir v. Ahmad Yar and others PLD 1990 SC 1049 and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 ref.

(c) Judgment---

---- Judgment which was neither contrary to the evidence nor in violation of the principle of administration of justice, should ordinarily be preferred.

Mir Muhammad, alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202 and Ilamuddin through Legal Heirs v. Syed Sarfraz Hussain through Legal Heirs and 5 others 1999 CLC 312 ref.

Mirza Israr Beg for Petitioner.

Respondent: Ex parte.

Date of hearing: 18th April, 2003.

2003 C L C 1381

[Lahore]

Before Maulvi Anwarul Haq, J

Malik TAHIR MAHMOOD and another---Petitioners

Versus

ELECTION TRIBUNAL FOR RAWALPINDI, DISTRICT ATTOCK and 6 others---Respondents

Writ Petition No.602 of 2003, decided on 7th May, 2003.

Punjab Local Government Elections Rules, 2000---

----R. 80---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Declaration of unsuccessful candidates as returned candidate--­Prerequisites---Unsuccessful candidates came to know about the disqualification of returned candidates only after the elections were over---Plea raised by unsuccessful candidates was that in place of returned candidates, they should be declared as returned candidates--­Validity---Votes cast by majority could be considered to be thrown away votes only if the disqualification suffered by winning candidate was so notorious that it could, be safely assumed that the majority in spite of being fully aware of the disqualification proceeded to return such candidate---If the unsuccessful candidates, who were in direct contest with the returned candidates, were not aware of the disqualification then it could not be assumed that majority voters were aware of the same--­Once process of election was completed and majority had expressed confidence in the candidates then unless and until disqualification was attributed to the returned candidates or such other grounds as were prescribed by law, were made out, the election of the returned candidates could not be declared to be void---High Court declined to declare the unsuccessful candidates as returned candidates---Petition was dismissed in limine.

Syed Saeed Hassan v. Pyar Ali PLD 1976 SC 6; Lal Muhammad v. Muhammad Usman 1975 SCMR 409 and Muhammad Ilyas v. The Returning Officer and others 1981 SCMR 233 ref.

Shoukat Aziz Siddiqui for Petitioner.

2003 C L C 1389

[Lahore]

Before Maulvi Anwarul Haq, J

SAFDAR HUSSAIN---Petitioner

Versus

ELECTION TRIBUNAL and others---Respondents

Writ Petition No. 1123 of 2002, heard on 15th April, 2003.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Election of union council--­Petitioner's election was challenged on the ground that he being a retired person from Pakistan Air Force he was disqualified on the date of nomination from contesting election---Election Tribunal, while accepting the election petition declared the election of petitioner void and respondent was declared to be elected---Neither any plea nor any evidence was available on record that the disqualification of the petitioner was notorious and the judgment was silent as to why the Tribunal treated the votes cast in favour of the petitioner by a majority as against respondent had been treated by him as thrown away votes---Constitutional petition, in circumstances, was allowed partly and impugned judgment of the Election Tribunal was declared to be without lawful authority inasmuch as the same purported to declare the respondent as a returned candidate---Competent Authority, was directed to hold a fresh election on the said seat.

Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 ref.

Ms. Zahida Ameen for Petitioner.

Malik Aziz-ud-Din Ahmad for Respondent No.2.

Date of hearing: 15th April, 2003.

2003 C L C 1391

[Lahore]

Before M. Javed Buttar, J

TAHIR MUHAMMAD alias TARIQ KHALID and 9 others---Petitioners

Versus

MEMBER, BOARD OF REVENUE/CHIEF SETTLEMENT COMMISSIONER, PUNJAB, LAHORE and another---Respondents

Writ Petition No. 153/R of 1996, decided on 15th October, 2002

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----Ss. 10 & 11---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss.2(2) & 3(1)(a)---Scheme for the Management and Disposal of Available Urban Properties, 1977, Para. 6(1) --- Constitution of Pakistan (1973), Art. 199---Constitutional petition---Pending proceedings, principle of---Mukhbari application---Right of occupant---Allotment was alleged to be a result of fraud---Proceedings on Mukhbari application filed by respondent were pending at the time when settlement laws were repealed in the year 1975---Respondent was found to be in possession of disputed shop before 1960---Settlement Authorities allowed the application, cancelled the allotment and the property was allotted in the name of respondent in the year 1983---Plea raised by the petitioners was that after repeal of settlement laws, the Permanent Transfer Deed could not be cancelled in the year 1983---Validity---Respondent had been agitating the matter throughout and the proceedings before Settlement Authorities were deemed to be pending proceedings saved by S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975--­-Chief Settlement Commissioner was competent to pass the order of cancellation of Permanent Transfer Deed as the present proceedings were not affected due to the repeal of settlement laws---Respondent was entitled to the transfer of the shop in. terms of para. 6(1) of Scheme for Management and Disposal of Available Properties, 1977; issued by Government of Punjab under S.3(1)(a) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Chief Settlement Commissioner on availability of the shop; after cancellation of Permanent Transfer Deed from the name of allottee had correctly ordered the transfer of the same in the name of the respondent on the basis of being informer and also on the basis of being occupant--- Petition was dismissed in circumstances.

The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106; Syed Ali Shah v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 504 and S. Anwar Hussain Sani v. Sarfraz Ahmed and 2 others PLD 1971 SC 669 ref.

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

----Art. 199---Constitutional jurisdiction of High Court, invoking of--­Principles---Such jurisdiction cannot be invoked in aid of injustice to retain ill-gotten gain.

Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106. Begum Shams-un-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Qutabuddin and others v. Sardar Hidayatullah Khan Mokal and another 1976 SCMR 524 and Muhammad Hanif v. Sabir and another 1980 SCMR 568 ref.

(c) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----Ss. 10 & 11--- Transfer of Property Act (IV of 1882), S.41--­Permanent Transfer Deed, cancellation of---Purchase from ostensible owner---Protection of S.41 of Transfer of Property Act, 1882---Scope--­Petitioners were vendee s from allottee who obtained the allotment through fraud, misrepresentation and impersonation---Permanent Transfer Deed issued in favour of the vendor was cancelled resultantly the property was transferred to other persons---Petitioners claimed protection of S.41 of Transfer of Property Act, 1882---Validity---Petitioners might be bona fide purchasers but could not claim a better title than their predecessor, as against the person who had been asserting his right for the transfer since 1972---Petitioners were not protected under S.41 of Transfer of Property Act, 1882 in presence of proceedings pending under Ss. 10 & 11 of Displaced Persons (Compensation and Rehabilitation) Act, 1958.

Muhammad Yasin and others v. Settlement Commissioner and others 1976 SCMR 489; Bashir Ahmed and others v. Additional Commissioner with Powers of Settlement Commissioner (L) and others 1983 SCMR 1199; Manzoor Hussain v. Fazal Hussain and others 1984 SCMR 1027; Gul Muhammad and others v. Additional Settlement Commissioner and others 1985 SCMR 491 and Ejaz Ahmed Khan v. Chahat and others 1987 SCMR 192 ref.

Khan Muhammad Bajwa and Malik Abdul Wahid for Petitioners.

Shehzad Jehangir for Respondent No.2.

Date of hearing: 15th October, 2002.

2003 C L C 1404

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SHAFI---Petitioner

Versus

MUHAMMAD SHARIF---Respondent

Civil Revision No. 898-D of 1999, decided on 11th April, 2003.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 19--Agreement to sell---Permission from Collector---Necessity--­Permission from the Collector for agreement to sell under S.19, Colonization of Government Lands (Punjab) Act, 1912 is not mandatory.

Ghulam Rasool's case 1969 SCMR 254; Muhammad Iqbal's case PLD 1986 SC 70; Akhtar Ali's case 1981 SCMR 604; Muhammad Afzal's case 1991 SCMR 1785; Mushtaq Hussain's case 1999 MLD 384 and Mubarik Ali's case 2000 YLR 652 ref.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 19---Specific Relief Act (I of 1877), S.12---Bar prescribed in S.19, Colonization of Government Lands (Punjab) Act, 1912, is against the alienation and not against the agreement---Agreement could be enforced through the specific performance after the grant of proprietary rights.

Mst. Rehmat Bibi's case 1992 SCMR 1510; Waris Ali's case PLD 2000 SC 792; Hakim Ali v. Atta Muhammad 1981 SCMR 993; Muhammad Iqbal v. Muhammad Hussain PLD 1986 SC 70; Rehmat Bibi v. Jhando Bibi 1992 SCMR 1510; Sher Muhammad Khan v. Ilam Din 1994 SCMR 470; Abdul Ghani v. Fatima Bibi 1994 SCMR 1786; Mehr Bakhsh's case 1999 YLR 958 and Abdul Hameed's case 1992 CLC 1504 ref.

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

----O. XXIII, R. 1---Party filed a suit for cancellation of agreement and same was subsequently dismissed as withdrawn---Party was estopped to wriggle out from the execution of the agreement between the parties on well-known principle of approbate and reprobate, waiver, res judicata and estoppel.

Haji Ghulam Rasool v. The Chief Administrator PLD 1971 SC 376 and Pir Bakhsh v. The Chairman Allotment Committee PLD 1987 SC 145 ref.

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

----S. 96---Reversing the findings of Trial Court---First Appellate Court to meet the reasoning of the Trial Court first, then reverse the findings of Trial Court.

Madan Gopal's case PLD 1969 SC 617 ref.

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

----S. 115---Revision---Reversal, of findings of facts---High Court's jurisdiction---Where decision on facts was based on no evidence or inadmissible evidence or was so perverse that grave injustice would result, therefrom, in such circumstances High Court had ample jurisdiction to reverse the findings of facts of the First Appellate Court while exercising power under S.115, C.P.C.

Knawal Nain's case PLD 1983 SC 53; Shaukat Nawaz's case 1988 SCMR 851 and Muhammad Bakhsh's case 2003 SCMR 286 ref.

Khalid Ikram Khatana for Petitioner.

Arshad Malik Awan for Respondent.

Date of hearing: 11th April, 2003.

2003 C L C 1411

[Lahore]

Before Maulvi Anwarul Haq, J

PAKISTAN through Secretary, Ministry of Religious Affairs, Government of Pakistan, Islamabad---Petitioner

Versus

DALLAH REAL ESTATE AND TOURISM HOLDING COMPANY---Respondent

Civil Revision No.616 of 2000, decided on 2nd May, 2003.

(a) Arbitration Act (X of 1940)---

----Ss. 33 & 35---Arbitration agreement---Scope---Implementing award against a person not a party to arbitration agreement---Validity---Person who was not party to arbitration agreement could not be proceeded against under the arbitration agreement.

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

----S. 115---Limitation Act (IX of 1908), S.5---Condonation of delay--­Act of Court---Originally revision petition was filed before Appellate Court within limitation---Objection against the pecuniary jurisdiction of Appellate Court was dismissed and the petition was found to be competently filed---Dismissal of objection was assailed before High Court and the matter was remanded for decision afresh---Appellate Court, in post remand proceedings, returned the petition to be filed before competent forum---Plea raised by the petitioner was that it was a bona fide mistake and delay in filing of the petition before High Court was to be condoned---Validity---Lapse of time was not wholly attributable to the petitioner and an act of Court was involved---Delay in filing of the petition was condoned in circumstances.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 fol.

(c) Arbitration Act (X of 1940)---

----Ss. 33 & 35---Awami Hajj Trust Ordinance (LXXXI of 1996), Ss.3 & 5---Civil; Procedure Code (V of 1908), S.115---Arbitration agreement--­Implementation of award---Respondent initiated arbitration proceedings against Awami Hajj Trust---By virtue of S.5 of Awami Hajj Trust Ordinance, 1996, certain Federal Government officials were managing the affairs of the Trust---Government of Pakistan filed application under S.33 of Arbitration Act, 1940, against the claim of the respondent---Trial Court dismissed the application on the ground that the Government had no locus standi to file the application as after repeal of Awami Hajj Trust Ordinance, 1996, the Trust was no more in existence, and Government of Pakistan was not a party to the agreement---Validity---Judgment of Trial Court was in favour of the Government of Pakistan which could not be termed to be a person aggrieved of the judgment---High Court declined to interfere with the judgment and decree passed by Trial Court---Revision was dismissed in circumstances.

Messrs Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd., PLD 1970 SC 43 distinguished.

Saleem Sehgal for Petitioner.

Ch. Naseer Ahmad for Respondent.

Date of hearing: 2nd May, 2003.

2003 C L C 1423

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD YOUSAF---Petitioner

Versus

DISTRICT NAZIM, ATTOCK and 5 others---Respondents

Writ petition No.3356 of 2002, heard on 8th May, 2003.

Societies Registration Act (XXI of 1860)---

----S. 13---Punjab Local Government Ordinance (XIII of 2001), S.18--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Dissolving society registered under Societies Registration Act, 1860--­Jurisdiction of District Nazim and Registrar appointed under Companies Ordinance, 1984---Grievance of petitioner was that District Nazim and Registrar had appointed administrator to manage the affairs of the mosque which was being managed by a Society registered under Societies Registration Act, 1860---Validity---Power and function of Nazim were defined in S.18 of Punjab Local Government Ordinance, 2001, and the provision did not authorize him to pass the order for appointment of administrator---Even Registrar did not have power either to dissolve the Society registered under Societies Registration Act, 1860, or to appoint administrator---Order passed by the Authorities was without lawful authority and was set aside---Petition was allowed accordingly.

Malik Shahzad Ahmad for Petitioner.

S.M. Ayub Bukhari for Respondents Nos. 1, 2 and 6.

Sh. Ijaz Ali Siddiqui for Respondents Nos.3 to 5.

Date of hearing: 8th May, 2003.

2003 C L C 1425

[Lahore]

Before Ch. Ijaz Ahmad, J

EGYPT AIR---Petitioner

Versus

SARFRAZ AHMAD TARAR---Respondent

Civil Revision No.377 of 2003, decided on 20th March, 2003.

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

----O. VII, R. 11 & S.151---Suit for damages---Defendant had filed written statement along with preliminary objection that the plaint was liable to be rejected under O.VII, R.11, C.P.C.---Issues had been framed and case was fixed for evidence when the defendant filed application under O.VII, R.11 read with S.151 of C.P.C., for rejection of plaint which was dismissed by the Trial Court on the basis of averments of the plaint---Validity---Contents of the plaint were to be taken into consideration at the time of deciding the application under O.VII, R.11, C.P.C.

Kamal-ud-Din v. Province of Punjab and another 1977 MLD 21 rel.

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

----O. VII, R. 11 & S. 151---Defendant filed application under O.VII, R.11 read with S.151, C.P.C, on the grounds already taken in written statement at the stage when issues had already been framed, statement of plaintiff had been recorded and defendant reserved his right to cross-­examine him---Such fact revealed that defendant had filed the said application mala fide to prolong the litigation and same was rightly dismissed by the Trial Court.

Principal, Government Higher Secondary School, Oghi v. Mir Afzal and 2 others 1995 CLC 525 rel.

Syed Hamid Ali Shah for Petitioner.

2003 C L C 1430

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. MARRYAM KHAN and 3 others---Petitioners

Versus

MEMBER (JUDICIAL III), BOARD OF REVENUE PUNJAB, LAHORE and 7 others---Respondents

Writ Petition No. 1520 of 1999, heard on 7th May, 2003.

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

----Ss. 7, 9 & 164---Revision---Jurisdiction of Additional Commissioner---Scope-- Additional Commissioner was appointed under S.9 of West Pakistan Land Revenue Act; 1967, and he exercised functions throughout the Division under the provisions of West Pakistan Land Revenue Act, 1967, subject to general supervision and control of the Commissioner of the Division---Additional Commissioner was a Revenue Officer within the meaning of S.7 of West Pakistan Land Revenue Act, 1967.

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

----S. 164---Civil Procedure Code (V of 1908), O. IX, R.13--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Revision petition under S.164 of West Pakistan Land Revenue Act, 1967---Dismissal in default---Provisions of Civil Procedure Code, 1908--­Applicability---Revenue Officer after publication in press decided the revision petition ex parte against respondents---Application filed by respondents to set aside the ex parte order was dismissed by Revenue Officer---Validity---West Pakistan Land Revenue Act, 1967 did not contain any provision empowering Revenue Officer to dismiss a revision petition for default or to proceed against a party ex parte---Revenue Officer having passed the ex parte order with reference to Civil Procedure Code, 1908, same was to be set aside with reference to the said Code, upon Revenue Officer being satisfied that the respondents had not been served with the process ---Revenue Officer acted without lawful authority while passing the ex parte order and the same was set aside--­Case was remanded to the Revenue Officer for decision afresh---Petition was allowed accordingly.

Mian Inamul Haq and Zaheer Bashir Ansari for Petitioners.

Abdul Qayyum for Respondent No. 1.

Nemo for the Remaining Respondents.

Date of hearing: 7th May, 2003.

2003 C L C 1434

[Lahore]

Before Muhammad Akhtar Shabbir, J

MAHRAM KHAN---Petitioner

Versus

FATEH KHAN and 3 others---Respondents

Civil Revision No. 604/D of 1996, heard on 11th March, 2003.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 24---Pre-emption suit---Period for deposit of one-third (Zar-e­-Soim) of the sale price of property not to be more than 30 days from the date of filing of the suit---Said period having been fixed by the statute itself could not be extended by the Court.

Muhammad Ismail v. Jamil-ur-Rehman and 6 others 1995 MLD 1011 and Mst. Wafa Jan v. Mahram Zed 1995 CLC 2002 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 24---Civil Procedure Code (V of 1908), S.11 & O.XXIII, R.1 ---Pre-emption suit---Trial Court directed the plaintiff to deposit one­-third (Zar-e-Soim) of the sale price---Plaintiff adopted the way of withdrawing the suit for filing a fresh one due to non-deposit of one-third Zar-e-Soim and the suit was dismissed as withdrawn for his default--­Effect---Enforcement of pre-emption right according to S.13 of the Punjab Pre-emption Act, 1991 could only be made once and dismissal of suit for non-deposit of Zar-e-Soim of the sale price had the effect of barring a fresh suit---Dismissal of suit under S.24 of Punjab Pre-emption Act, 1991 finally determined the right of the parties subject to the decision of the appeal or revision.

Haji Janat Gul Khan v. Haji Faqir Muhammad Khan PLD 1993 SC 204 ref.

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

----S. 115---Revision---Scope---High Court in exercise of its revisional jurisdiction is competent to take suo motu notice of the legal defect even if the party had not filed cross-objection.

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

----S. 100---Second appeal ---Suit against respondent having been dismissed by Courts below he was entitled to support the decree even by attacking points decided against him.

Salahuddin Butt v. Punjab Service Tribunal PLD 1989 SC 597; Munir Hussain v. Abdul Hameed 1995 MLD 1596; Syed Mustafa Kamal Shah v. Syed Feroze Shah 1992 CLC 355 and Syed Ali Raza v. Aurangzeb Khan 1987 CLC 1829 ref.

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

----O. XLI, R. 22---Cross-objection---If the respondent had not taken cross-objection to urge in opposition of the appeal, objection if accepted would result in total dismissal of the suit---Question of jurisdiction or limitation, however, could be raised at any stage.

Khairati and 4 others v. Aleemuddin PLD 1973 SC 295 rel.

(f) Punjab Pre-emption Act (IX of 1991)---

----S. 24---Civil Procedure Code (V of 1908), S.11---Non-compliance with the order of the Trial Court for the deposit of one-third pre-emption money within a period of thirty days under S.24 of the Punjab Pre-emption Act, 1991, would debar the pre-emptor from filing a subsequent suit for pre-emption on the same subject-matter and on the same cause of action.

Muhammad Munir Peracha for Petitioner.

Muhammad Munir Kiyani for Respondents.

Date of hearing: 11th March, 2003.

2003 C L C 1443

[Lahore]

Before Syed Jamshed Ali, J

BASHIR AHMED and another---Petitioners

Versus

Mst. ZAKIA JABEEN and 7, others---Respondents

Civil Revisions Nos.256 to 259 of 1995 and Civil Miscellaneous Nos.771/C to 774/C of 2001, decided on 22nd April, 2003.

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

----Ss. 151 & 152---Correction of clerical mistakes---Failure to mention new Khasra number in judgment---Dispute between the parties was related to demarcation of suit property---Local Commission was appointed for demarcation of suit property---Old and new Khasra numbers of disputed property were mentioned in pleadings and in judgments and decrees passed by the Courts below but inadvertently the Local Commission mentioned only the old Khasra number and the same was mentioned by High Court while deciding the revision petition--­Grievance of the applicant was that omission of new Khasra number being a clerical mistake be corrected---Validity---High Court did not intend demarcation of Khasra numbers as the same were not in dispute in the suit---High Court directed insertion of new Khasra number in the relevant paragraph of the judgment passed in exercise of revisional jurisdiction---Application was allowed.

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

----S. 152---Accidental slip in judgment ---Correction---Scope--­Jurisdiction to direct correction of accidental slip, omission or clerical mistake vests only in the Court passing the judgment---Such jurisdiction can be exercised at anytime.

Ch. Ishtiaq Ahmad for Petitioner.

Malik Waqar Saleem for Respondents.

2003 C L C 1447

[Lahore]

Before Ch. Ijaz Ahmad, J

CHAIRMAN, FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, ISLAMABAD through Deputy Secretary Legal---Petitioner

Versus

UMAR SAEED SADAL---Respondent

Civil Revision No.606 of 2003, decided on 18th April, 2003.

($) Limitation Act (IX of 1908)---

----Ss. 5 & 29---Application for condonation of delay---By virtue of S.29, Limitation Act, 1908, S.5 of the Limitation Act, 1908 is not applicable where the time is prescribed in the statute itself.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 ref.

(b) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)---

----S. 29---Bar of S.29 of Punjab Board of Intermediate and Secondary Education Act, 1976 on jurisdiction of Civil Court to entertain suit for declaration for the change of name---Scope---Civil Court had jurisdiction to entertain such suit.

Zafar-ul-Ahsan's case PLD 1960 SC 113 and Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mahmood 1985 CLC 657 fol.

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

----S. 115---Concurrent findings of fact by lower Courts---Petitioner failed to point out any piece of evidence which was misread by the Courts below ---High Court dismissed the revision petition.

Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431 fol.

Sardar Muhammad Arshad Dogar for Petitioner.

2003 C L C 1452

[Lahore]

Before Mian Muhammad Jahangier, J

Mst. BASHIR BIBI and 4 others---Petitioners

Versus

Mst. MEHRAN BIBI and another---Respondents

Civil Revision No 778-D of 1.997, heard on 21st February, 2003.

(a) Limitation Act (IX of 1908)---

----S. 5---Civil Procedure Code (V of 1908), S.115---Islamic Law--­Condonation of delay---Matter relating to inheritance---Effect---Such disputes should be disposed of on merits---Delay in filing of revision petition was condoned by High Court in circumstances.

(b) Islamic Law---

----Gift---Proof---Essential ingredients---Three essentials of valid gift, firstly, there must be a declaration of gift by donor, secondly, acceptance of gift express or implied by or on behalf of donee and thirdly, delivery of possession of the subject of gift---Besides offer made by donor and acceptance by donee, delivery of possession should be in such a way or naked that it should come into the knowledge of other legal heirs--­Delivery of such possession is possible only when physical or constructive possession is transferred at the spot to donee, otherwise, the transaction would be void ab initio and an outcome of concealment.

(c) Islamic Law--

----Gift---Land---Transfer of possession---Proof---Transfer of possession should be such that when donor dies other legal heirs must know that the donee is physically cultivating the land so given---Such change must reflect from Revenue Record as well.

(d) Islamic Law---

----Gift---Land---Onus to prove---Depriving other legal heirs of their legal share---Concealing gift deed---Plaintiffs assailed the gift deed on the ground that the same was act of concealment, result of fraud and they had been cultivating the suit-land since the very beginning---Trial Court decreed the- suit but Appellate Court allowed the appeal and the suit was dismissed---Validity---Onus had shifted on the donee ---Donee having failed to discharge the onus upon her and it seemed as if the gift deed was an act of concealment to deprive the other legal heirs, judgment passed by trial Court was in accordance with evidence on record and relevant law---Gift made by a father to a major son or daughter---Fact of delivery of possession should come into existence in such a way that it was an open transaction---Delivery of possession was not essential in case the gift deed was made in favour of a minor son---Findings of Appellate Court were set aside by High Court and those of, the Trial Court were restored.

Mst. Qabal Jan v. Mst. Habab fan and 9 others 1992 SCMR 935; Ghulam Hussain and another v. Faiz Muhammad and 7 others PLD 1991 SC 218; Mst: Farida Sajid v. Syed Muhammad Baqir Ali Shah and others 2000 MLD 1729; Muhammad Yaqoob through Legal Heirs v. Feroze Khan and others 2003 SCMR 41; Mitho Khan and another v. Abdul Jabbar and 9 others 2003 SCMR 46; Azim Khan v. Malik Mobeen Khan and others 2001 SCMR 34; Mst. Khalida Bibi v. Mst. Daryan Khanum 1995 PLR 267; Mir Haji Ali Ahmad Khan Talpur and 9 others v. Government of Sindh and 2 others PLD 1976 Kar. 316; Abdul Karim v. Muhammad Ibrahim 1976. SCMR 79; Haji Rehmdil v. The Province of Balochistan and another 1999 SCMR 1060 and Gatron (Industries), Limited v. Government of Pakistan and others 1999 SCMR 1072 ref.

Mst. Farida Sajid v. Syed Muhammad Baqir Ali Shah and others 2000 MLD 1729 rel.

Ch. Ali Muhammad for Petitioners.

Rana Qadeer Ahmad for Respondents.

Date of hearing: 21st February, 2003.

2003 C L C 1458

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

ABDUL MATLOOB---Petitioner

Versus

ZARQA KALSOOM and others---Respondents

Writ Petition No. 6082 of 2003, decided on 13th May, 2003.

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

----Ss. 13(3), 13(4) & 17---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Execution of money decree passed by Family Court---Contention of the petitioner was that such decree could only be executed and recovered as arrears of land revenue by a Court established under the West Pakistan Land Revenue Act, 1967, in view of S.13(3) read with S.17 of West Pakistan Family Courts Act, 1964---Validity--­Section 13(4) of West Pakistan Family Courts Act, 1964, clearly provided that decree shall be executed by the Court passing the same while S.13(3) of the said Act provided that it was the discretion of Executing Court that on refusal by judgment-debtor to pay decretal amount, Court may, if so directed could recover the same and assess it as arrears of land revenue---Implementation of the decree by the Court of Tehsildar was not mandatory.

(b) Jurisdiction---

---- No Court can take away the jurisdiction which is given to a Court by law and, no Court is competent to pre-empt legal jurisdiction of a competent Court under the law.

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

----S.13(4)---Execution of money decree passed by Family Court--­Section 13(4) of West Pakistan Family Courts Act, 1964, provides that decree shall be executed by the Court which has passed the same or by some other Civil Court directed by special or general order of the District Judge.

Saif-ul-Haq Ziay for Petitioner.

2003 C L C 1463

[Lahore]

Before Ch. Ijaz Ahmad, J

FAHEEM MUNAWAR KHAN ---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Health and another--Respondents

Writ Petition No. 4523 of 2003, decided on 20th May, 2003.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational institution--­Admission in medical college---Failure to deposit requisite fee and documents within the prescribed period---Authorities denied admission to candidate oil such failure---Effect---Petition was liable to be dismissed in circumstances.

Muhammad Zubair v. Principal, Hailey College of Commerce 1997 MLD 946 ref.

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

----Arts. 2A, 4, 5(2), 20, 22, 25, 37, 38 & 199---Constitutional jurisdiction of High Court---Scope---Framing of policy---Judicial review---Grievance of petitioner was that different educational institutions were claiming/demanding different amount in Self-Finance Scheme --­Validity ---Even though it was the prerogative of policy makers to frame policy, High Court had ample jurisdiction to take notice of action which would be taken on the basis of the policy---Claiming/demanding of different amounts, in Self-Finance Scheme by different institutions was not in accordance with Art. 25 of the Constitution---High Court directed the Federal Government to look into the matter and to formulate a uniform policy otherwise the private institutions would play havoc with people of Pakistan which was not in accord with the mandate of the Constitution in view of Arts. 2A, 4, 5(2), 20, 22, 37 & 38 ---Petition was disposed of accordingly.

Zohra v. Government of Sindh PLD 1996 Kar. 1 ref.

G. Farid Ahmad for Petitioner.

Muhammad Hanif Khattana, Add1.A.-G. with Muhammad Khan Ranjha, Section Officer (ME), Health Debarment.

2003 C L C 1466

[Lahore]

Before Sayed Sakhi Hussain Bukhari, J

GHULAM GHOUS ZULFIQAR ---Petitioner

Versus

CANTONMENT BOARD, BAHAWALPUR and others---Respondents

Writ Petition No. 3617 of 2002, heard on 9th May, 2003.

(a) Cantonments Act (II of 1924)---

----Ss. 114 & 115---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Cantonment Board had invited parties to join auction proceedings for contract of collection rights of transfer tax--Petitioner participated in the auction proceedings and was declared highest the bidder---Cantonment Board informed the petitioner for approval of his contract and he was required to submit non-judicial stamp paper for execution of agreement and to deposit the requisite amount--­Petitioner supplied non-judicial stamp paper, deposited requisite amount and started the work of collection of transfer tax---Petitioner's contract was suspended by the Board and petitioner assailed the suspension of contract through Constitution petition---Petitioner had not produced any agreement allegedly executed between the parties and Cantonment Board had mentioned that no written agreement had been executed between the parties---No contract having been entered between the parties according to the provisions of Ss.114 & 115 of the Cantonments Act 1924, claim of the petitioner, therefore, was baseless.

Dr. Fazal Din v. Municipal Committee, Lyallpur PLD 1956 (W.P.) Lah. 916 rel.

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

----Art. 199---Constitutional petition--- Maintainability--- Factual controversy---Factual controversy could not be resolved by the High Court in Constitutional jurisdiction, same being not possible without recording the evidence---Constitutional petition was dismissed.

Mumtaz Hussain Bazmi and Bilal Ahmad Qazi for Petitioner.

Ahmad Nadeem Arshad for Respondents.

Date of hearing: 9th May, 2003.

2003 C L C 1472

[Lahore]

Before Maulvi Anwarul Haq, J

JAVAID IQBAL RAJA ---Petitioner

Versus

MUHAMMAD ISHAQ BHATTI and another---Respondents

Civil Revision No. 444 of 2002, heard on 29th April, 2003.

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

----Ss. 12(2) & 115---Decree, setting aside of---Plea of fraud and collusion---Petitioner and one of the respondents were partners and were tenants in the suit shop---Trial Court passed eviction order against them---Appeal against the said order was dismissed by Appellate Court--­Petitioner filed application under S.12(2), C.P.C. and sought setting aside of the eviction order---Appellate Court dismissed the application--­Plea raised by the petitioner was that the Appellate Court was supposed to frame issues and thereafter should have decided the application--­Validity---No collusion or fraud was made out on the face of the record---Partner of the petitioner contested the ejectment suit, filed appeal, also took chance before High Court and after having failed therein the petitioner appeared on scene with the present application---No necessity existed at all for factual inquiry into the allegations made in the application---High Court declined to interfere with the order passed by the Appellate Court---Revision was dismissed in circumstances.

Sub. Muhammad Hussain v. Mst. Shah Begum and others 1990 MLD 2100 and Mst. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another 1999 SCMR 1696 ref.

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

----S. 12(2)---Setting aside of decree under S.12(2), C.P.C.---Framing of issues, a .mandatory requirement---Validity---Not obligatory for Court in every case to frame issues, record evidence of parties and follow the procedure prescribed for decision in the suit---Matter is left to the discretion of the Court which had to regulate its proceedings and keeping in view the nature of allegations in application under S.12(2), C.P.C., the Court may adopt any mode for its disposal.

Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46; Amiran Bibi and others v. Muhammad Ramzan and others 1999 SCMR 1334 and Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 rel.

Ibad-ur-Rehman Lodhi for Petitioner

Raja Muhammad Hanif Satti for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 29th April, 2003.

2003 C L C 1476

[Lahore]

Before Abdul Shakoor Paracha, J

SARDAR ALI and 4 others---Petitioners

Versus

TANVIR-UL-HAQ and 5 others---Respondents

Civil Revision No. 281 of 1997, heard on 7th April, 2003.

(a) Limitation Act (IX of 1908)---

----S. 19---West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), S.3---Property was mortgaged in 1896, mortgagees sold their rights of mortgaged land through mutation in 1950 which referred that vendors sold their mortgage rights which acknowledgement showed that they were the mortgagees---Fact of mortgage having been acknowledged in 1950, period of 60 years for redemption was thus far away---Mortgagee was entitled to redeem the land on payment of the mortgage amount.

Samar Gul v. Central Government and others PLD 1986 SC 35 and Faqir Gul and others v. Abdul Rehman 1999 CLC 46 fol.

(b) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----S. 17---Limitation Act (IX of 1908), S.19---Additional Commissioner and Member, Board of Revenue misinterpreted the principle of acknowledgement contained in S.19 of Limitation Act, 1908--­Proceedings before both the forums had been rightly challenged before Civil Court being Court of ultimate jurisdiction---Section 17 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 protected only the proceedings conducted in accordance with law and in good faith.

(c) Limitation Act (IX of 1908)---

----S. 19--- Civil Procedure Code (V of 1908), S.115---Concurrent finding of fact recorded by two Courts below on the question that period of limitation had not expired being based on evidence could not be interfered by High Court in exercise of revisional jurisdiction.

Ch. Muhammad Tufail for Petitioners.

Ch. Nusrat Javed Bajwa and M. Aslam Malik, A.A.-G. for Respondents.

Date of hearing: 7th April, 2003.

2003 C L C 1479

[Lahore]

Before Sayed Zahid Hussain, J

YAHYA QURESHI---Petitioner

Versus

ABDUL RASHID and 3 others---Respondents

Civil Revision No. 1763 of 1993, heard on 6th May, 2003.

Civil Procedure Code (V of 1908)---

----S. 115---Specific Relief Act (I of 1877), S.12---Revision, limitation for---Suit for specific performance filed by petitioner having concurrently been dismissed by Trial Court and Appellate Court---Petitioner had assailed such judgments in revision---Revision which was to be filed within a period of 90 days, having been filed about 27 days after the prescribed period was barred by time and was liable to be dismissed on that ground when no justification was brought forth by the petitioner explaining such delay---Adjudication was to be made on merits as far as possible but with expiry of period of limitation valuable rights would come to accrue in favour of other side which could not be trampled upon or rendered nugatory, for no just cause---Revision was dismissed as time­-barred.

Haji M. Ilyas and 2 others v. Mir Habib Jan 1997 MLD 551; Nasir-ud-Din v. Muhammad Bashir and another 1999 MLD 2999; Ajbar Khan and others v. Said Hakim Khan and others 1999 CLC 362 and Allah Yar and another v. Faiz Ahmad and 5 others 1999 CLC 713 ref.

Tipu Sultan for Petitioner.

Munawwar-ul-Islam for Respondents Nos.2 and 3.

Date of hearing: 6th May, 2003.

2003 C L C 1482

[Lahore]

Before Muhammad Javed Buttar and Syed Jamshed Ali, JJ

GHULAM MUHAMMAD ---Appellant

Versus

COMMISSIONER, LAHORE DIVISION, LAHORE and 66 others---Respondents

Intra-Court Anneals Nos. 240 to 251 of 1994, heard on 1st April, 2003.

(a) Punjab Acquisition of Land (Housing) Act (VIII of 1973)--

----Ss. 3 & 14---Punjab Acquisition of Land (Housing) (Repeal) Act (XII of 1985), S.3---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Acquisition of land---Failure to pay compensation---Pending proceedings---Land was acquired by Development Authority under Punjab Acquisition of Land (Housing) Act, 1973---Award was rendered but dispute between the parties had arisen regarding ownership of the acquired land and litigation was decided in favour of the respondents up to Supreme Court---Development Authority did not pay compensation to landowners because of the litigation---Respondents having been successful up to Supreme Court applied the Commissioner for amendment of award on the basis of Civil Court decree---Award was amended and the respondents were found entitled to compensation---Appellants preferred Constitutional petition against the amendment of the award and an arbitrator/mediator was appointed to settle the dispute--­Arbitrator/mediator decided the matter in favour of the respondents and the Constitutional petition was disposed of accordingly---Plea raised by the appellants was that arbitration proceedings were not applicable to Constitutional petition---Further plea raised by the appellants was that Commissioner cold not amend the award in view of repeal of Punjab Acquisition of Land (Housing) Act, 1973---Validity---Even if the case stricto senso did not fall in the saving clause contained in S.3 of Punjab Acquisition of Land (Housing) (Repeal) Act, 1985, the direction of Commissioner for amending the award in accordance with the decree of Civil Court was only a consequential order---Lahore Development Authority was otherwise bound to act in accordance with determination of title by the decree of Civil Court---Entire effort of appellants was to reopen the controversy and defeat the judgments and decrees passed in civil litigation between the parties---Interference by High Court in Intra-­Court Appeal would bring about a patently unjust consequence i.e. the judgments and decrees passed in civil litigation would be reduced to nullity---Appellants having themselves elected a special mode of decision and also undertook that they would be bound by the decision of arbitrator/mediator, therefore, High Court in Intra-Court Appeal declined to exercise their discretion in the matter---Decision against the appellants having been given, they could not be permitted to resile from their undertaking to be bound by the decision of the arbitrator/mediator---High Court in Intra-Court Appeal declined to interfere with the judgment passed by Single Judge of the High Court ---Intra-Court Appeal was dismissed in circumstances.

Abdul Qayyum Khan v. Government of Punjab through Secretary, Local Government and Rural Development Department and another PLD 1995 Lah. 205; Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and 4 others PLD 1985 SC 376; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Syed Ali Shah v. Abdul Saghir Khan Sherwani PLD 1990 SC 504 ref.

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

----Ss. 30 & 31---Payment of compensation---Right of owners of land, protection of---Provisions of Ss. 30 & 31 of Land Acquisition Act, 1894 are intended to protect the interest of rightful owner of the land entitled to compensation---By virtue of decree passed by Civil Court declaring a party as rightful owners such owners were entitled to compensation.

Dr. A. Basit for Appellant.

Umar Atta Bandial for Respondent.

Date of hearing: 1st April, 2003.

2003 C L C 1489

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

ABDUL RASHID ---Appellant

Versus

NAZIR AHMED and others---Respondents

Regular Second Appeal No. 88 of 1996, decided on 5th May, 2003.

Civil Procedure Code (V of 1908)---

----S. 100---Concurrent finding of facts by lower Courts---Appellant had failed to prove any material mistaken assumption by the lower Courts and to convince that the fallacy of lower Courts in appreciating the evidence was fatal in the eye of law---High Court had no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross and inexcusable the error might seem to be unless there was an error or defect which was materially and legally fatal to the decision of the case on merits.

Abdul Majid and others v. Khalil Ahmed PLD 1955 FC 38 ref.

Ijaz Feroze for Appellant.

Irshad Ahmed Qureshi for Respondent.

Date of hearing: 29th April, 2003.

2003 C L C 1498

[Lahore]

Before Sayed Zahid Hussain, J

MUHAMMAD HAYAT KHAN and 2 others---Petitioners

Versus

Rana SAFDAR ALI and 5 others---Respondents

Civil Revision No. 263 of 1995, heard on 25th April, 2003.

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

----S. 115---Revision---Scope---Findings concurrently recorded by the two Courts/were ordinarily considered as sacrosanct unless suffering from patent illegality---Reappraisal and appreciation of the evidence was not the function of High Court unless gross misreading and non-reading of the evidence was established.

(b) Settlement Scheme No.VII---

----Specific Relief Act (I of 1877), S.42---Suit for declaration--­Possession of the, plaintiff of the suit property on the target date i.e. 1-1-1961 as contemplated by Settlement Scheme No.VII --- Both the Courts had relied on the entries of Jamabandi and view formed by them was consistent with the documentary evidence which supported the case of the plaintiff as at the relevant time i.e. 1-1-1961 he was in possession of the property and had become owner of the said property by operation of law under Settlement Scheme No.VII---Objection as to the lack of jurisdiction of the Civil Court and the maintainability of the suit had also been duly attended to and answered by the Courts---Contention of the defendants about the non-consideration of the evidence led by them thus had no substance in view of the fact that on the material date the plaintiff was found in possession of the suit property---Possession of the property at any subsequent period was of no avail and report of the spot inspection lost its significance in the context of real controversy viz. the possession on the target date---No illegality having been committed by the Courts in arriving at their concurrent view in the matter, High Court declined interference in circumstances.

Muhammad Hussain v. Muhammad Hussain and others 1982 SCMR 1163 and Hav. Muhammad Akbar and others v. Adalat Khan and another 1985 SCMR 169 ref.

Shahid Ihsan Siddiqui for Petitioner.

Rizwan Mushtaq and Ch. Zafar Iqbal for Respondents.

Date of hearing: 25th April, 2003.

2003 C L C 1500

[Lahore]

Before Mian Saqib Nisar, J

RAFIQUE AHMED through Legal Heirs and 10 others---Petitioners

Versus

MUHAMMAD ANWAR ---Respondent

Civil Revision No. 1321 of 1996, heard on 20th November, 2003.

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

----Ss. 8 & 42---Suit for possession and specific performance of agreement---Plaintiff had filed suit for possession in respect of suit-land and defendant filed suit for specific performance of agreement which allegedly was executed by plaintiff in his favour---Trial Court allowed suit for possession and dismissed suit for specific performance of agreement---Appellate Court reversed findings of Trial Court holding that defendant had proved execution of agreement of sale of suit-land in his favour---Defendant had produced two witnesses to prove agreement of sale in his favour, but major contradictions existed in the statements of said witnesses about the manner in which agreement was drafted and was allegedly thumb-marked by all those who were shown to have executed and witnessed said document---Stamp paper on which said agreement was executed, had been purchased from the district other than the district where land in dispute was situated and both districts were at distance of about 40 miles---Stamp paper was also not shown to have been directly purchased by the executant himself, but was purchased through another person---Defendant had neither examined stamp vendor nor the person named at the back of stamp paper who had purchased the same on behalf of the executant---Reasons given by Trial Court for dismissing suit filed by defendant for specific performance of agreement which were based on record were more weighty than Appellate Court---Appellate Court without considering facts on record, in a sketchy and for unfounded reasons and without applying mind, decreed the suit for specific performance of agreement---Judgment and decree passed by Appellate Court, could not be sustained and would be viewed to have been passed with material irregularity and erroneous exercise of jurisdiction---High Court set aside judgment and decree passed by Appellate Court and upheld judgment and decree passed by the Trial Court.

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

----S.115---Revision---"Case decided" by subordinate Court was to be assailed in revision unlike the decree in appeal and if decision was set aside, the decree based thereupon would automatically go away.

Ch. Muhammad Maqsood Ahmed for Petitioners.

S.M. Tayyab for Respondent.

Date of hearing: 20th November, 2002.

2003 C L C 1510

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. SURAYYA AZIZ---Petitioner

Versus

COLLECTOR, LAHORE DISTRICT, LAHORE and 2 others---Respondents

Writ Petition No.5599 of 1989, heard on 9th April, 2003.

Land Acquisition Act (I of 1894)---

----Ss. 4 & 17(4)---Privately Managed Schools and Colleges (Taking Over) Regulation, 1972 [M. L. R. 118 of 1972]---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss.13 & 15---Civil Procedure Code (V of 1908), S.11---Qanun-e-Shahadat (10 of 1984), Art. 114--­Constitution of Pakistan (1973), Arts. 199, 4, 5, 23 & 24---Constitutional petition---Petitioner being owner of the property in question rented out the same to a school which was nationalized under the provisions of M.L.R.118 of 1972---Authorities filed ejectment petition against the management of the school before Rent Controller on the ground of default which was accepted and upheld uptill High Court---Authorities' second appeal was dismissed and Government filed Constitutional petition on the ground that land in question was requisitioned under the provisions of M. L.R.118 of 1972, therefore, Rent Controller had no jurisdiction to take cognizance of the matter, and thus ejectment order passed by the Rent Controller alongwith the judgment of Additional District Judge judgment of High Court in second appeal were not sustainable in the eyes of law---Petitioner also challenged the vires of requisition order of the property in question but the petition was dismissed---Petitioner file Intra-Court Appeal which was accepted---Authorities having no challenged the judgment passed in second appeal in ejectment proceeding and judgment in Intra-Court appeal were estopped to initiate proceeding under the provisions of Land Acquisition Act, 1894 on the basis of principles of waiver, estoppel and res judicata---Authorities, thereafter initiated proceedings to acquire the land in question under the provisions of Land Acquisition Act, 1894 and through the said proceedings possession of the land was taken by the Authorities---Validity--­Authorities having failed in the litigation had initiated proceedings under the provisions of Land Acquisition Act, 1894, which manner of exercising power was mala fide---Public functionaries were duty bound to act in accordance with law in view of Art. 4 of the Constitution--­Respondents could acquire the land/property of any citizen subject to the condition that acquisition proceedings must be in accordance with law in view of Arts. 23 & 24 read with Arts. 4 & 5 of the Constitution---Requisition order having been set aside by High Court in Intra-Court appeal Authorities had no lawful right to initiate proceedings under the provisions of Land Acquisition Act, 1894 in the garb of public interest and purpose, as once the action of the public functionaries was based on malice the same was not sustainable in the eyes of law.

Agha Shorash Kashmiri's case PLD 1969 SC 14; Saeed Ahmad Khan's case PLD 1974 SC 151: Aman Ullah Khan's case PLD 1990 SC 1092; Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Mst. Nasreen Zohra v. Multan Development Authority 1991 CLC 1001; Pir Bakhsh v. The Chairman, Allotment Committee PLD 1987 SC 145 and Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf West Pakistan PLD 1971 SC 376 rel.

Mian Nisar Ahmad for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. for Appellant.

Date of hearing: 9th April, 2003.

2003 C L C 1516

[Lahore]

Before Mian Saqib Nisar, J

Munshi KHIAL MUHAMMAD ---Appellant

Versus

ABDUL REHMAN and others ---Respondents

Regular Second Appeal No. 24 of 1989/BWP, decided on 19th August, 2002.

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

----S. 54---Sale---Oral sale---Validity---Once sale had been mutated and due effect had been given to it in Jamabandi, vendee, to all intents and purposes, legally acquired right of ownership in the estate---Oral sale was permissible under law.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 6---Pre-emption suit---Superior right of pre-emption ---Plaintiff claimed superior right of pre-emption on two counts, firstly being a co-­owner in Khata and secondly, being owner in the estate---Suit was resisted by defendant/vendee claiming that he being tenant of the suit-­land had superior right of pre-emption qua the plaintiff---Suit was decreed by Trial Court holding that plaintiff though had failed to prove being co-owner of Khata, yet had established his ownership in the estate---Claim of defendant/vendee about his tenancy of suit land was not accepted by Trial Court---Appellate Court allowing appeal against judgment and decree of Trial Court, set aside findings of Trial Court holding that plaintiff had failed to prove being an owner in the estate and that defendant had established being tenant of suit property at the time of sale---Plaintiff by producing unquestioned Jamabandi in respect of suit land had proved that he had acquired right of ownership in the estate--­Oral sale in favour of plaintiff having been mutated and due effect having been given -in the Jamabandi for the relevant year, plaintiff had legally acquired right of ownership in the estate---Plaintiff having become owner in the estate, Appellate Court, in circumstances, had taken erroneous view that plaintiff was not the owner in the estate---Defendant, however, had proved that he was tenant of suit land---Plaintiff had himself produced Khasra Girdawari of relevant period which had shown that at the time of sale of suit land defendant was tenant thereof---Defendant had also led oral evidence to establish his tenancy at the time of sale--­Plaintiff who had himself placed on record Khasra Girdawari for the relevant period which in unequivocal terms had shown that defendant was tenant, could not wriggle out from the effect of his documentary evidence, especially when no evidence had been produced by plaintiff to disprove said document ---Defendant having fully been proved to be tenant of suit land at the time of its sale, he was rightly found having superior right of pre-emption---Suit of plaintiff, was rightly dismissed by Appellate Court.

Rasool Bakhsh v. District Judge, Dera Ghazi Khan and 15 others 2000 YLR 1513; Chaudhry Muhammad Saeed Mujheana, Advocate v. Muhammad Anwar-ul-Haq and others 2000 YLR 280; Muhammad Bakhsh v. Zia Ullah and others PLD 1971 BJ 42; Muhammad v. Zia Ullah and others 1983 SCMR 988 and Muhammad Iqbal Legal Heirs v. Bashir Ahmed and 19 others PLD 2002 Lah. 88 ref.

Sardar Muhammad Hussain Khan for Appellant.

Nadeem Iqbal Chaudhry and Rana Sher Afghan for Respondent No. 1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 19th August, 2002.

2003 C L C 1529

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. SARDARAN and 4 others---Petitioners

Versus

Mst. RASOOLAN and others---Respondents

Civil Revision No. 2397 of 1995, heard on 17th March, 2003.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 119, 122 & 133---West Pakistan Land- Revenue Act (XVII of 1967), R. 42----Suit for declaration­--Mutation of gift in favour of wife by husband---Plaintiffs (other legal heirs of donor) had alleged that the gift was made during Marz-ul-Maut-- ­Trial Court decreed the suit, but Appellate Court dismissed the same--­Validity---Plaintiffs had brought on record sufficient material from operative part of examination-in-chief of their witnesses that donor was not in senses---Defendant had not cross-examined plaintiff's witnesses with regard to ailment of donor---Defendant's witnesses had admitted that age of donor was 65 years, gift mutation-was sanctioned in village, where donor was not residing, and Patwari of both villages were different--­Defendant had not produced Revenue Officer to prove factum of gift and mutation---Statements of defendant's witnesses were contradictory in nature and had failed to prove contents of impugned mutation of gift in terms of law---Appellate Court had not adverted to reasoning of Trial Court in impugned judgment---High Court accepted revision petition, set aside impugned judgment/decree of Appellate Court and restored that passed by Trial Court with observations that defendant would be entitled to portion of disputed property in accordance with Injunctions of Islam.

Naseer Ahmed v. Arshad Ahmad PLD 1984 SC 403; Muhammad Bakhsh v. Nisar Ahmad 1985 CLC 1974; Mrs. J.C. Rehman v. Mrs. Sultan Ahmad 1985 CLC 2271; Muhammad Sadiq v. Fakhari Pasha 1985 CLC 2211; Luqman v. Yar Muhammad 1985 CLC 2327; Mst. Sikandar Jan v. Abdul Ghani 1985 CLC 2582; Syed Iqbal Ahmad v. Mst. Sarwari Begum PLD 1967 Lah. 1138; Mst. Mahmood Khatoon v: Muhammad Khan 2000 YLR 534(2); Mohammadan Law by D.F. Mulla, paras. 139, 152(3), 153; Rashid-ud-Din v. Nazir-ud-Din AIR 1929 Lah. 721 and Mst. Ghulam Sughran's case PLD 1986 Lah. 194 ref.

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

----Art. 133---Specific assertion made by witness in examination-in-chief substantially relevant to controversy of case---Such assertion was not challenged in cross-examination by putting contrary suggestion---Held, such assertion would be given full credit and accepted as true unless displaced by reliable, cogent and clear evidence.

Mst. Noor Jehan Begum 1991 SCMR 2300 and Luqman's case 1985 CLC 2327 fol.

(c) Islamic Law---

---- Gift---Marz-ul-Maut--- Test to determine, whether donor was suffering from Marz-ul-Maut at the relevant time---Factors relevant to be considered by Court stated.

A Marz-ul-Maut is malady which induces an apprehension of death in the person suffering from it and which eventually results in his death. The Court in all these cases is to find out the state of mind of the deceased in order to ascertain whether there was such a preponderance of apprehension of death at the time of, execution of the deed in question that the death seemed to him more, probable than life. The right test is whether the deed of gift was executed by the donor under apprehension of death. The following are the tests for determining whether the donor was suffering from Marz-ul-Maut (i) that the donor was suffering at the time of deposition from a disease, which was the immediate cause of his death; (ii) that the disease was such as to engender in him the apprehension of death, and (iii) that the illness incapacitated him from the pursuit of his ordinary avocation and prevented him from saying his prayers while standing.

Following are the principles to be kept in view for the determination of Marzul Maut by the donor:--

(i) Was the donor suffering at the time of gift from a disease which was the immediate cause of his death?

(ii) Was the disease of such a nature or character as to induce in the person suffering the belief that death would be caused thereby, or to engender in him the apprehension of death?

(iii) Was the illness such as to incapacitate him from the pursuit of his ordinary avocations---a circumstance which might create in the mind of the sufferer an apprehension of death?

(iv) Had the illness continued for such a length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady?"

Mulla's Mohammadan Law, para. 135 ; Jehan Khan's case PLD 1951 Lah. 433; Fatima Bibi's case 35 IA 67; Abdul Ahad Khan's case ILR 12 Lah. 683 and Noor Muhammad Khan's case PLD 1994 SC 650 rel.

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

----Arts. 119 & 122---Gift---Burden of proof---Where a party maintains that no gift deed was ever executed, then anus to prove the gift lies on person asserting that gift deed was validly executed.

Qabool Muhammad Shah's case 1992 MLD 833; Shamshad Ali Shah's case PLD 1964 SC 143; Muhammad Akram's case 1994 CLC 185 and Hakim Ali's case 1994 SCMR 1939 rel.

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

----S. 96---First appeal---Appellate Court reversed finding of Trial Court without meeting its reasoning in impugned judgment---Validity---Such judgment of Appellate Court would be in violation of law laid down by superior Courts.

Madan Gopal's case PLD 1969 SC 617 rel.

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

----Ss. 96 & 115---Judgment of First Appellate Court based on no evidence or inadmissible evidence or so perverse as to cause injustice--­Validity---Appellate Court had committed material, irregularity---High Court under S.115, C.P.C. had ample jurisdiction to disturb findings of fact in such a situation.

Kanwal Nain's case PLD 1983 SC 53 rel.

Aftab Iqbal for Petitioners.

Ata-ul-Mohsin Lak for Respondents.

Date of hearing: 17th March, 2003.

2003 C L C 1539

[Lahore]

before Muhammad Khalid Alvi and M.A. Shahid Siddiqui, JJ

PUNJAB ROAD TRANSPORT CORPORATION through District Manager, PRTC, D.G. Khan and another---Petitioners

versus

MUHAMMAD IQBAL LODHI and another---Respondents

Civil Revisions Nos.456-D, 457-D of 2000, 1024-D, 1025-D, 1026-D, 1027-D and 1028-D of 2001, heard on 21st May, 2003.

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

----S. 115---Limitation Act (IX of 1908), Ss.12(2) & 29(2)---Revision--­Limitation---Exclusion of time spent in obtaining copy of impugned judgment---Provisions of S.12(2) of Limitation Act, 1908 would apply to application/civil revision filed under 5.115, C.P.C.---Principles.---[Said Muhammad v. Sher Muhammad and 2 others 2001 MLD 1546 and Tahirali and others v. Chief Judge, Karachi Small Causes Court, Karachi and another PLD 1960 (W.P) Kar. 795 overruled].

Section 29(2) of Limitation Act, 1908 describes applicability of sections 9 to 18 of said Act to suits, appeals and "applications" under special or local law. The "civil revision being an application" arising out of a special law is not specifically provided in the Schedule of Limitation Act, 1908. Such application would be covered under section 12(2) of Limitation Act, 1908, which cannot be read in isolation from provisions of section 29(2) of said Act.

Clause (a) of subsection (2) of section 29 of the Limitation Act, 1908 provides applicability of section 12 as a whole for all, types of "applications" arising out of any special or local law, therefore, the restrictions contained in section 12(2), Limitation Act, 1908 with respect ~to review applications and leave to appeal applications is only applicable to cases coveted under the Schedule of Limitation Act, 1908 and is not applicable to cases of any special or local law.

Except as a title of section 115, C.P.C , the word "revision" is nowhere used in the body of said section. Basically the power conferred on High Court under said section is a suo motu power under subsection (1), but under first proviso thereof, this power can also be exercised by High Court on an "application" made by a person. Although commonly such petitions are known as "civil revisions", but for all practical purposes,' in the words of section 115 itself, this is an "application". Limitation of 90 days for such an "application" is provided in second proviso. Therefore, since a special law provides a limitation for an application and applicability of sections 9 to 18 of Limitation Act, 1908 has not been expressly excluded by special law i.e. section 115, C.P.C., therefore, under section 29(2)(a) of said Limitation Act, 1908, provisions of section 12(2) thereof would be applicable.

For special or local laws, the governing section for the purposes of limitation is section 29. Its subsection (2) includes any suit, appeal or "application" arising out of any special or local laws. Since an "application" under section 115, C.P.C., is arising out of a special law providing its own limitation, therefore, if an application is to be filed under a law, which provides its own limitation different from the period prescribed, therefore, by First Schedule of Limitation Act, 1908 'the computation of limitation will necessarily be made under the provisions of section 29(2) of Limitation Act, 1908. Thus, in such a case, the restriction contained in section 12(2) with respect to applications for leave to appeal and applications for review of judgment would not be -applicable and benefit of this subsection will have to be extended to all applications arising out a special or local law. Thus, provisions of section 12(2) of Limitation Act are applicable to applications/civil revisions filed under section 115, C.P.C.

Said Muhammad v. Sher Muhammad and 2 others 2001 MLD 1546 and Tahirali and others v. Chief Judge, Karachi Small Causes Court, Karachi and another PLD 1960 (W.P.) Kar. 795 overruled.

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

----S. 115---Revision---Limitation of 90 days---Starting point---Whether such limitation would start running from supply of copy of decision by Subordinate Court within 3 days---Direction of supply of copy within 3 days and disposal of application by High Court within 3 months as contained in second proviso to S.115, C.P.C, were of regulatory nature---Many orders passed by Trial Court might fall within category of “decision" or "case decided"---Not necessary for Trial Court to provide copy of each such order to the aggrieved party and every such order would not necessarily be challenged tinder S.115, C.P.C.---Period of 90 days' limitation, thus, could not be attached with condition of supply of copy within 3 days.

Abdul Majid v. Muhammad Afzal Khokhar 1993 SCMR 1686 and Namdar Khan v. Muhammad Akram Khan and 14 others 1993 SCMR 434 ref.

Chaudhry Saghir Ahmed for Petitioners.

Ghazi Raza for Respondents.

Date of hearing: 21st May, 2003.

2003 CLC 1547

[Lahore]

Before Mian Saqib Nisar, J

Mian REHMAT ALI and others---Petitioners

versus

SAFIA REHMAT and others---Respondents

Civil Revisions Nos. 6962 of 2002 and 959 of 2001, decided on 5th April, 2002.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.IX, R.6---Suit for declaration---Ex parte proceedings, setting aside of---Case of defendants who were proceeded ex parte was that date on which evidence had been recorded in ex parte proceedings was not the date of hearing because on that date case was fixed for filing of written statement and in case written statement was not filed, ex parte proceedings could not have been ordered, but at the most defence of defendants could be struck off---Validity---Plaintiffs, conceded to set aside ex parte orders passed against defendants subject to payment of some reasonable costs--­Ex parte orders were set aside by imposing heavy costs, in circumstances.

Muhammad Shahzad Shaukat for Petitioners.

N.A. Butt for Respondent No. 1.

Nadeem-ud-Din Malik for Respondent No.2.

Date of hearing: 5th April, 2002.

2003 C L C 1548

[Lahore]

Before Sayed Zahid Hussain and Syed Sakhi Hussain Bukhari, JJ

BAYER AG and another ---Appellants

versus

PHARMEDIC (PVT.) LIMITED through Chief Executive ---Respondent

Regular First Appeal No. 326 of 1997, heard on 9th June, 2003

Civil Procedure Code (V of 1908)

----Ss. 148 & 149---Enlargement of time for making good the deficiency in court-fee---Scope---Application made under S.148, C.P.C, showed that extension of time was sought for depositing court-fee, pleading therein that "the plaintiff was considering the amicable settlement of the mattes by way of compromise under the changed circumstances of the case"--­Said application was rejected without seeking reply from the other side on the ground that time already granted had expired---Validity---Such approach of the Court was untenable inasmuch as the time could be extended by the Court if the same had expired and Court was still possessed of power and jurisdiction to order making good of the deficiency in court-fee under Ss. 148 & 149, C.P.C.---No prejudice would have been caused to the other side even in case the extension in time, in making good the deficiency in court-fee had been granted to the plaintiff.

Sultan A.'nmad and others v. Khuda Bux and others 1986 SCMR 1005; Ata Muhammad v. Abdul Aziz and others 1988 SCMR 759; Allah Yar v. Muhammad Riaz and others PLD 1981 SC 489; Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 and Abdur Rahim alias Reheema v. The State 1986 SCMR 105 ref.

Hassan Irfan Khan for Appellants.

Shoaib Saeed for Respondent.

Date of hearing: 9th June, 2003.

2003 C L C 1555

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

MUHAMMAD KHAN ---Petitioner

versus

MUHAMMAD ALSAM---Respondent

Civil Revision No. 1893 of 2001, decided on 5th May, 2003.

Specific Relief Act (I of 1877)---

----S.42---Qanun-e-Shahadat (10 of 1984), Art.85---Suit for declaration--­Absence of description of boundaries of disputed shop in the sale-deed--- Plaintiff, in order to prove location of shop produced certified copy of site plan from record of pre-emption suit---Trial Court dismissed the suit, which judgment was upheld by Appellate Court---Validity---Such site plan without scale had been produced in a suit for pre-emption filed by a stranger, wherein defendant was not a party---Disputed shop was in Abadi Deh---How such site plan without scale had been prepared. by its author and from where the same had been taken was not explained--­Plaintiff had not produced the author of site plan---High Court declined to interfere with concurrent findings of Courts below and dismissed revision petition.

AIR 1930 All. 26; Messrs Bangal Friends & Co., Decca v. Messrs Gour Benode Saha & Co., Calcutta PLD 1969 SC 477 and Seraj­ud-Din Kazi v. Rairaman Sen and others PLD 1958 Dacca 490 ref.

Muhammad Hanif Niazi for Petitioner.

Inayat Ullah Khan Niazi for Respondent.

Date of hearing: 28th April, 2003.

2003 C L C 1568

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J .

IZHAR-UL-HAQ ---Petitioner

versus

Mst. SHAMEEM ---Respondent

Writ Petition No. 13398 of 2002, heard on 23rd May, 2003.

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

----S. 5 & Sched.---Civil Procedure Code (V of 1908), S.11--­Constitution of Pakistan (1973), Art.199---Constitutional petition ---Res judicata, principle of---Applicability---Scope---Dissolution of marriage on the basis of Khula'---Allegation of misappropriation of dowry articles of the lady---Lady filed fresh suit for recovery of dowry articles which was decreed---Validity---Petitioner/man contended in his Constitutional petition that the lady had filed a suit for dissolution of marriage, where issues regarding maintenance allowance and misappropriation of dowry articles were framed and were decided against the lady and marriage was dissolved in consideration of maintenance allowance and also articles of dowry vide judgment and decree, therefore, the present suit was incompetent under the principles of res judicata and that in the earlier suit for dissolution of marriage she had failed to prove her case about the misappropriation of dowry articles---Validity---Judgment of Family Court in suit for dissolution of marriage could not be treated as res judicata as previous suit was a suit for dissolution of marriage and in the case of marriage dissolved on the basis of Khula' the consideration, could never be the recovery of articles of dowry or the maintenance allowance, which were independent rights of the marital spouses; Zar-e-Khula' could only be those benefits which the lady received and while claiming Khula' was bound to return---Maintenance allowance was an independent right which a party to wedlock attained by virtue of marriage and the suit rested on entirely different legal grounds and similar was the case of articles of dowry---Judgment of the Trial Court that the lady had foregone her right on articles of dowry while asking for Khula' was legally wrong and suffered from legal infirmity and non-suiting the lady/plaintiff on the basis of finding on issue of misappropriation of dowry articles in a suit for dissolution of marriage was the outcome of error of law and was rightly set aside in appeal by the Appellate Court.

Akhtar Masood Khan for Petitioner.

Ejaz Ahmad Chaudhry for Respondent.

Date of hearing: 23rd May, 2003.

2003 C L C 1572

[Lahore]

Before Rustam Ali Malik, J

GHULAM RASUL --- Petitioner

versus

Syed ALI HUSNAIN ASIM and another ---Respondents

Civil Revision No. 2535 of 2001, decided on 4th April, 2002

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

----S. 12(2)---Fresh petition under S.12(2), C.P.C.---Would not be competent after dismissal of previous petition for non-prosecution and withdrawing application for its restoration.

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

-----Ss. 12(2) & 115---Revision petition against order dismissing petition under S.12(2), C.P.C., for non-prosecution---Maintainability=--Obvious remedy available to petitioner was to file an application for restoration of such petition---Revision petition would not be competent in any manner.

C.M. Latif Rawn for Petitioner.

Syed Mukhtar Abbas for Respondents

Date of hearing: 4th April, 2002.

2003 C L C 1574

[Lahore]

Before Muhammad Akhtar Shabbir, J

WATER AND POWER DEVELOPMENT AUTHORITY through Chairmanand 2 others---Petitioners

versus

Mian SHAUKAT HAYAT---Respondent

Civil Revision No.797 of 2003, decided on 13th May, 2003.

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

----S. 42---Electricity Act (IX of 1910), Ss.20, 2.4, 26, 39 & 44---Suit for declaration---Issuance of detection bill for slow running of meter having been tampered---Plaintiff challenged validity of such bill---Trial Court decreed the suit, which was upheld by Appellate Court ---Validity--­Issuance of notice before issuing detection bill was mandatory requirement of law---Authority had not proved as to when meter had been checked, and that before or at the time of its checking, any notice had been issued to petitioner as per requirement of S.20 of Electricity Act, 1910---Nothing was available on record to prove that any officer of Authority or its team had checked meter by associating the plaintiff--­Determination of period for charging of slowness of meter was arbitrary---Meter had not been sent to Electric Inspector to find out the defect therein---Plaintiff had been penalized without getting meter determined as tampered---Authority could not ignore or violate law and become Judge in its own cause to deprive consumer of his rights---Plaintiff had not received any complaint or intimation .from Authority about slowness or tampering of his meter---Authority had not pointed any defect in meter by issuing notice under law--- Courts below had not overlooked any part of record from their judicious consideration---High Court dismissed revision petition in limine.

Mian Muhammad Munir v. WAPDA and others 1983 CLC 211; Dr. Muhammad Rafiq Chaudhry v. WAPDA and others 1983 CLC 2397 and Shafiq Ahmad v. MEPCO, WAPDA and others 2003 CLC 598 rel.

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

----Ss 42---Electricity Act (IX of 1910), Ss.24„ 26, 39 & 44---Civil Procedure Code (V of 1908), Ss.9 & 115---Suit for declaration---Issuance of detection bill for slow running of meter as. being tampered---Trial Court decreed the suit filed by consumer, which was upheld by Appellate Court---Objection of Authority was that consumer without availing remedy before Electric Inspector had approached the Civil Court, thus, same had no jurisdiction---Validity---Authority in its written statement had not raised such objection, thus, same could not be raised at present late stage.

(c) Electricity Act (IX of 1910)---

----Ss. 20 & 24---Issuance of notice before charging of detection bill--­Mandatory requirement of law.

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

----S. 115---Concurrent findings of facts and law---Validity---Where such findings were based on proper appreciation of evidence on record, then same would not be suspectible to review to be upset or substituted in revisional jurisdiction.

Guldar Khan v. Isa Khan 1993 SCMR 2099; Nazir Ahmad v. Boota 1989 SCMR 450; Riaz v. Muhammad Saleem 1989 SCMR 1491 and Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 rel.

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

----S. 115---Concurrent findings on question of fact could not be upset merely on ground that another view of evidence was possible on reappraisal.

Mian Khurshid Alam Ramay for Petitioner.

2003 C L C 1579

[Lahore]

Before Farrukh Lateef, J

FIRHAN FAHEEM---Petitioner

Versus

DISTRICT JUDGE and others---Respondents

Writ Petition No.2536 of 2000, decided on 30th May, 2003.

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

----O. XIII, Rr. 1, 2 & S.115---Specific Relief Act (I of 1877), S.42--­Suit for declaration---Application for permission to produce documents in evidence---After affirmative evidence of plaintiffs was concluded, defendants moved an application for seeking permission to produce in evidence some documents---Said application was accepted by Trial Court, but in revision filed against order of Trial Court, application for production of documents was dismissed by Appellate Court---Trial Court had allowed application for production of documents on two grounds, firstly that many of documents sought to be produced by defendants had come into existence during proceedings of suit which were not in existence previously and secondly that said documents were required by Court for just decision of the case---Trial Court while allowing application of defendants had also found that plaintiffs would be at liberty to produce evidence in rebuttal of said documents---Appellate Court in revision had reversed order of Trial Court on ground that documents were disputed and application for producing said documents was made at belated stage---Validity---Delayed production 'of documents by itself should not have been a ground for refusing permission to produce documents as documents could be produced even at appellate stage--­Evidence of defendants, having not yet commenced, that stage could not be said to be as belated---No prejudice was caused to plaintiffs as they were allowed to produce, evidence in rebuttal---Even otherwise order admitting documents not amounting to "a case decided", it was not amenable to revisional jurisdiction of Appellate Court---Order in revision, in circumstances was passed by Appellate Court in violation of law and in arbitrary exercise of its powers---Improper or wrong exercise of discretion was not open to revision unless same was contrary to principles regulating exercise of such discretion or Court exercising discretion had acted perversely---Improper exercise of discretion could be corrected in appeal---Reasons given for allowing application of defendants for production of documents, hardly called for interference in revisional jurisdiction.

(h) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction, exercise of---Scope---Order passed in revision by Appellate Court below being in violation of law and passed in arbitrary exercise of its power, was declared to have been passed without lawful authority and of no legal effect by High Court in exercise of its Constitutional jurisdiction.

Muhammad Tufail Alvi for Petitioner.1

Respondents: Ex parte.

Date of hearing: 22nd May, 2003.

2003 C L C 1584

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD HABIB SUBHANI---Appellant

versus

MUHAMMAD AMEEN---Respondent

Second Appeal from Order No.26 of 2001, decided on 20th June, 2003.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 15---Default in payment of rent---Proof---Evidence on record had proved that despite demand, tenant had failed to pay rent for alleged period of four months and also had failed to pay enhanced rent at rate of 25 % payable after three years as provided under S.5-A of West Pakistan Urban Rent Restriction Ordinance, 1959---Attorney of landlord deposed on oath that tenant had not paid disputed rent despite demand--­aid attorney was not cross-examined by tenant---After said unrebutted statement of attorney of landlord, onus was shifted on tenant to prove that e had paid rent due to landlord---Tenant could not prove that on refusal of landlord to accept disputed rent he sent the same through money order and that landlord also refused to accept said money order---Tenant further made a vague statement that rent for disputed period stood paid to landlord, but nothing was produced by tenant on record to show as to how rent stood paid---Even witness produced by tenant had admitted --During cross-examination that rent in dispute was not paid by tenant to landlord in his presence---Willful default in payment of disputed rent, in circumstances stood proved on the record---Reasoning of Appellate Court in support of its finding that default in payment of rent by tenant was not proved, was that landlord could not prove rent deed and that he had failed to produce counterfoils of receipts of payment of rent--­Said reasoning was neither plausible nor logical and was based on erroneous assumption of law and fact inasmuch as the fact of relationship of landlord and tenant and rate of rent was admitted by tenant which did not require to be proved---Payment of rent for disputed period having specifically been denied on oath by special attorney of landlord, there was no occasion for landlord to have produced counterfoils of receipts of payment of rent---Concurrent orders of Rent Controller and Appellate Court below whereby rent petition and appeal of landlord were dismissed, were not sustainable--­Same were set aside and rent petition filed by landlord was accepted.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

--S. 5-A---Automatic increase in rent---Notice in respect of demand of such increase---Service of notice under S.5-A of West Pakistan Urban Rent Restriction Ordinance, 1959 by landlord to tenant for statutory increase of rent at rate of 25%, was not a condition precedent to invoke jurisdiction of Rent Controller---Said increase would 11ecome due on expiry of three years and would be deemed to be a rent due ---Duty was enjoined upon Rent Controller to examine each case whether default in payment of statutory increase was wilful or otherwise.

2001 SCMR 31 and Muhammad Irfan v. Muhammad Zahid Hussain Anjum 2000 SCMR 207 ref.

Mian Shamsul Haq Ansari for Appellant.

Respondent: Ex parte.

Date of hearing: 13th June, 2003.

2003 C L C 1589

[Lahore]

Before Muhammad Khalid Alvi and Nazir Ahmad Siddiqui, JJ

LIAQAT ALI ---Appellant

versus

TOWN COMMITTEE through Administrator and 5 others---Respondents

Intra-Court Appeals Nos.203 and 208 of 2002, decided on 30th April. 2003.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Contempt of Court Ordinance (X of 1998), Ss.21 & 23---Intra­Court appeal---Maintainability---Contempt of Court---Registered sale­-deed having not- been executed in favour of appellants despite concessional statement of Chief Officer of respondent-Authority in their favour, appellants filed criminal original applications in their pending Constitutional petitions, which were dismissed by High Court--­Appellants had filed Intra-Court appeals against said order of High Court contending that they had filed Intra-Court appeals under S.21 of Contempt of Court Ordinance, 1998 as S.23 of said Ordinance had repealed Contempt of Court Act, 1976 and in the alternative it was contended by the appellants that appeals filed by them were also maintainable under S.3 of Law Reforms Ordinance, 1972---Contempt of Court Ordinance, 1998 had lived its life of four months only as it could not become an Act of Parliament and by virtue of Art.89 of Constitution ceased to exist as it stood repealed---Appeals filed by appellants under repealed Ordinance of 1998, were not maintainable---Such appeals were also not maintainable under S.3 of Law Reforms Ordinance, 1972 because under said provision of law an appeal was maintainable in two eventualities; firstly, if a decree or final order was passed by High Court in exercise of its original civil jurisdiction and secondly if an order was passed by a Single Judge of High Court under cl. (1) of Art.199 of Constitution---Case of appellants not falling in either of said two categories appeals` filed by them were not maintainable under S.3 of Law Reforms Ordinance, 1972.

PLD 1979 SC 912; PLD 1995 SC 66; PLD 2000 SC 26 and 2003

Mian Muhammad Ashraf Saleemi for Appellant

Muhammad Jahangir Arshad, A.A.-G

2003 C L C 1593

[Lahore]

Before Farrukh Lateef, J

MUSA and others---Petitioners

versus

Mst. MARYAM and others---Respondents

Civil Revision No. 1188 of 2002, decided on 12th June, 2003.

(a) Islamic Law---

----Inheritance---Devolution of property would take place through inheritance immediately without any other intervention irrespective of the fact whether mutation of inheritance was recorded or not or was incorrectly recorded---Wrong mutation would confer no right in property as Revenue Record was maintained only for the purposes of ensuring realization of land revenue---No question of limitation in inheritance suits ---Co-heirs-co-sharer who was in possession, would be deemed to hold possession on behalf of other co-sharers---Persons in possession of land being in constructive possession on behalf of other co-sharers, mere omission by them to pay their share of produce would not constitute their ouster.

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

----S. 115---Revision---Objection not raised either in grounds of appeal or before Appellate Court, could not be agitated at revisional stage.

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

----S. 115---Revision---Petitioner had contended at revisional stage that issues were not properly framed by Trial Court---Contention was repelled as said objection was neither taken before Trial Court nor it was mentioned in the grounds of appeal and it was also not agitated before Appellate Court during final arguments.

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

----O. XX, R.5---Failure to discuss appeal issue-wise---Contention was that Appellate Court by not discussing appeal issue-wise, had rendered judgment in violation of provisions of O.XX, R.5, C.P.C.---Contention was devoid of any force inasmuch as when finding on certain issues was sufficient for disposal of case, Appellate Court could not dilate upon other issues, especially when it was not alleged that by such dealing with the appeal any prejudice was caused to appellants.

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

----S. 115---Revi§ional jurisdiction, exercise of ---Scope---Revisional jurisdiction could be exercised against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusions of fact or law not involving question of jurisdiction---Concurrent findings of facts recorded, by Courts below were based on evidence and supported by sound and plausible reasoning---Such findings could not be interfered with by High Court in exercise of its revisional jurisdiction in absence of any jurisdictional error.

Muhammad Fazil for Petitioners.

Zafar Ullah Khakwani for Respondents.

Date of hearing: 5th June, 2003.

2003 CLC 1597

[Lahore]

Before Muhammad Khalid Alvi. J

IMRAN AHMAD and another-Petitioners

versus

THE DISTRICT JUDGE, DERA GH AZI KHAN and 2 others---Respondents

Writ Petition No.9400 of 2000, decided on 7th May, 2003

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 24---Suit for pre-emption ---Deposit of 1/3rd of sale price-­Limitation---Duty of Court---Plaintiff could not deposit 1/3rd of sale price as required by S.24, Punjab Pre7emption Act, 1991---Duty of the Court was to pass an order under S.24(1) of the said Act before any responsibility could be fixed on the plaintiff---Court was required to pass order under S'^24(1) of Punjab Pre-emption Act, 1991 on the day when suit was filed by the plaintiff---If no such order was passed on the very first day of the institution of suit, that was a lapse on the part of the Court and a contribution towards non-compliance of statutory provision of law---Subsection (1) of S.24 of Punjab Pre-emption Act, 1991 had made it obligatory on the Court to pass anorder and fix a time for deposit of 1/3rd sale price---If in terms of order of Court a deposit was made by plaintiff within the time fixed by the Court, he could not be non­suited--Primarily; it was duty of Court to go by provisions of law and if h litigant was misled by a wrong order on the basis of miscalculation of time by the Court, then litigant could not be penalized for a contributory lapse on the part of the Court.

1992 SCMR 746; PLD 1993 SC 204 and PLD 1997 Lah. 549 and NLR 2000 Civil 410 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 24---West Pakistan General Clauses Act (VI of 1956), Ss.8 & 9---Suit for pre-emption---Deposit of i/3rd of sale price ---Limitation--­Suit was filed by plaintiff on 30-9-1999 and Trial Court under provisions of S.24(1) of Punjab Pre-emption Act, 1991 was required to pass order for deposit of 1/3rd of sale price of suit-land on same date, but Trial Court ordered to deposit said price on next date on 1-10-1999 within 30 days---Date of 30-9-1999, could not be counted in 30 days period as on said date no order was passed by Court---Date of 1-10-1999 when order for deposit of 1/3rd of sale price was passed, was also to be excluded under S.8 of West Pakistan General Clauses Act, 1956---If date of 1-10-1999 was excluded then 30th day would fall on 31-10-1999---Since date of 31-10-1999 was a public holiday being Sunday,, plaintiff made deposit on 1-11-1999---Delay of one day in depositing 1/3rd sale price, in. circumstances, was protected under S.9 of West Pakistan General Clauses Act, 1956---Deposit made on 1-11-1999 would not entail dismissal of suit under S.24(2) of Punjab Pre-emption Act, 1991.

Muhammad Ameer Bhatti for Petitioners

2003 C L C 1602

[Lahore]

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

ABDUL RAUF and 10 others---Petitioners

Versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No.D-811 of 1999, decided on 8th April, 2003.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition--- Maintainability--- Disputed question of fact---Failure to file rejoinder affidavit---Grievance of the petitioners was that lease of disputed land was illegally cancelled by the Authorities---Petitioners had failed to produce application by which it was alleged that they had applied for renewal of the lease---Authenticity of the application was questioned by the Authorities---Petitioners also failed to produce any document on record that they had not committed breach of any terms and conditions of the lease and were entitled for the renewal of the lease in their favour---Record from the Authorities was also not called for, particularly the alleged application for renewal of lease so as to ascertain whether in fact such application was filed or the same had been manipulated in order to get extension in the period of lease---Respondents had filed detailed counter-affidavit and had made serious allegations of forgery and manipulations in the record---Such allegations had not been denied by the petitioners by filing rejoinder affidavit, as such the same went without any rebuttal---Effect---Points raised by the petitioners were disputed questions of fact which could not be adjudicated in Constitutional jurisdiction and to decide the same recording of evidence was required---Petition was dismissed in circumstances.

Aleem Akbar M. Shaikh for Petitioners.

Muhammad Sarwar Khan, Additional Advocate-General, Sindh for Respondents Nos.1 to 6.

Abdullah Chandio for Respondents Nos.7, 9, 11 and 12.

2003 C L C 1606

[Lahore]

Before Farrukh Lateef, J.

MUHAMMAD HUSSAIN ---Petitioner

Versus

ABDUL JABBAR and others---Respondents

Writ Petition No.4585 of 2002, decided on 11th June, 2003.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 17---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Execution of ejectment order---Objection petition ---Ejectment order having finally been passed against tenant he was ordered to vacate the shop---Petitioner, who was not tenant under respondent/landlord, filed objection petition in which he claimed that portion in his possession was not part of the shop which had been ordered to be vacated, but it was an independent portion which had been rented out to him by the respondent---Said objection petition was concurrently dismissed both by Rent Controller as Executing Court and Appellate Authority---Petitioner/objector had failed to produce any rent note, rent-deed or receipt duly executed by respondent---Site-plan annexed with objection petition itself had shown that place in possession of petitioner was in fact a portion of shop regarding which ejectment order was passed---Place in possession of petitioner was fully proved to be a portion of shop regarding which ejectment order was passed---Rent Controller and Appellate Authority below, in circumstances, had rightly dismissed the objection petition---Concurrent findings of fact of two Courts below that petitioner was not tenant of respondent and that he was in possession of a portion of disputed shop and not of any independent shop, were based on plausible reasoning---Courts below having neither exceeded jurisdiction nor acted without jurisdiction, concurrent judgments of Courts below could not be interfered with by High Court, in exercise of its Constitutional jurisdiction.

Abdul Rehman Madni for Petitioner.

Malik Muhammad Latif Khokhar for Respondent No. 1.

Date of hearing: 5th June, 2003.

2003 C L C 1609

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J.

Mst. TAYYIBA SHEHZADI---Petitioner

Versus

ASAD ALI SHAH---Respondent

Writ Petition No.2086 of 2003, heard on 13th June, 2003.

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' --­On filing suit for dissolution of marriage by plaintiff (wife) against defendant (husband), marriage was dissolved by Family Court on ground of Khula' subject to return of gold ornaments weighing 12 Tolas to defendant which allegedly were given to plaintiff by him at the time of marriage---Judgment and decree passed by Family Court was upheld by Appellate Court below---Plaintiff (wife) had categorically denied receipt of gold ornaments from defendant (husband) as claimed by him---No mention of any ornaments or any other item against columns provided in Nikahnama for the such purpose were found---No independent supporting or best evidence was produced by defendant to prove that he gave 'said ornaments to the plaintiff---Even receipt of said ornaments was not produced by defendant---Plaintiff had succeeded in establishing her entitlement to dissolution of marriage on ground of cruelty and non­-maintenance----Courts below thus could not dissolve marriage on basis of Khula' when no demand was made by defendant (husband) for return of benefits obtained by plaintiff (wife) during subsistence of marriage and when Courts had failed to formulate an issue on that point---Concurrent judgments of Courts below dissolving marriage on basis of Khula' in lieu of 12 Tolas of jewellery, were not only void but also were unfair, unjust and based on misreading of evidence---Courts below while deciding issues regarding non-payment of maintenance to plaintiff (wife) and her hatred towards her husband, having travelled beyond their jurisdiction, their concurrent judgments suffered from legal infirmity and were liable to be interfered with by High Court in exercise of its Constitutional jurisdiction.

Farida Khanum v. Maqbul Ilahi and 2 others 1991 MLD 1531; Quetta Hindu Panchayat v. Mst. Dilshad Akhtar and 5 others 1993 SCMR 21 and Sh. Muhammad Arif and others v. Deputy Settlement Commissioner, Lahore and another 1993 CLC 872 ref.

Ch. Azmat Ullah for Petitioner.

Anwaar ul Haq Pannu for Respondent.

Date of hearing: 13th June, 2003.

2003 C L C 1614

[Lahore]

Before Farrukh Lateef, J

KHALID SAEED and others---Petitioners

Versus

NADEEM AHMAD KHAN and others---Respondents

Writ Petition No. 323 of 2003, decided on 11th June, 2003.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 2(c)(i) & 13(6)---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Default in payment of rent---Relationship of landlord and tenant---Tentative rent order---Respondent, who claimed to be landlord of the premises in question, filed ejectment application against the petitioners on ground of default in payment of rent of the premises---Petitioners resisted ejectment application and filed application in which they claimed to be co-owners of property in question and that they had filed suit for declaration and partition in respect of said property which was pending in Civil Court---Rent Controller dismissed said application filed by petitioners and on same day passed tentative rent order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 directing petitioners to deposit arrears of rent and future monthly rent---Validity---Order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, could be passed by Rent Controller only when relationship of landlord and tenant was shown to be existing or was admitted to be existing, but in the present case petitioners had not admitted such relationship and had claimed to be co-owners in premises in question---Petitioners had not filed reply to ejectment application, but had filed application for rejection of said ejectment application---Order to deposit rent of premises passed by Rent Controller prior to determining relationship of landlord and tenants between the parties, was manifestly without jurisdiction and a nullity in the eye of law and order without jurisdiction could be assailed in Constitutional jurisdiction of High Court---Order passed by Rent Controller was declared to have been passed without jurisdiction and without lawful authority and of no legal effect---Rent Controller was directed to obtain reply from petitioner and to frame issue about existence of relationship of landlord and tenant and to decide same in accordance with law after affording opportunity to parties to produce evidence on said issue.

Ch. Abdul Ghani for Petitioners.

Saghir Ahmad Bhatti for Respondent No. 1.

Date of hearing: 4th June, 2003.

2003 C L C 1620

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J.

BAHADUR KHAN---Petitioner

Versus

KANEEZ FATIMA and others---Respondents

Writ Petition No.5624 of 2003, decided on 17th June, 2003.

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

----S. 13---Enforcement of decree for recovery of amount of dowry articles---Executing Court in such a decree issued warrant of arrest against judgment-debtor and sent him to civil imprisonment---Surety stepped into shoes of judgment-debtor and undertook to pay decretal amount if judgment-debtor would not pay the said amount and on said undertaking judgment-debtor was released from jail---Judgment-debtor having failed to pay decretal amount, notices were issued to surety and judgment-debtor was again sent to civil imprisonment and Trial Court sent warrant of attachment and auction against surety of judgment­-debtor---Validity---Surety having voluntarily stepped into the shoes of judgment-debtor and having undertaken to pay decretal amount if judgment-debtor failed to pay his warrant of attachment had rightly been issued.

Mushtaq Ahmad Mohal for Petitioner.

2003 C L C 1622

[Lahore]

Before Farrukh Lateef, J

KHIZAR YASIN and others---Petitioners

Versus

Mst. KHADIJA BIBI and others---Respondents

Civil Revision Nb.616 of 2003, decided on 20th June, 2003.

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

----O. XLI, R. 27---Additional evidence, production of---Power under O.XLI, R.27, C.P.C. was discretionary in nature and could be invoked when additional evidence was required by Appellate Court itself and not by a party to patch up weaker points of the case or filling up omissions--­Mistaken legal advice, inadvertence of the counsel or the fact that case was badly conducted in the lower Court or that documents sought to be produced were public record and were material to the determination of controversy, were no grounds for allowing additional evidence---Where party had opportunity, but had not elected to produce the said evidence in the Trial Court, it could not be allowed to give evidence that could have been given in the lower Court---Mere discovery of fresh evidence at later stage was also not a ground for allowing additional evidence.

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

----S. 115---Revisional jurisdiction---Scope---Limitation on exercise of--­Interference in revision with decisions regarding matters which were within the discretion of subordinate Court was unwarranted unless the order was contrary to the principles governing the exercise of such discretion or the Court had acted perversely or arbitrarily---Improper exercise of discretion could be corrected in appeal---Where impugned order was entirely reasonable and did not suffer from any jurisdictional error, same could not be interfered with in revision.

Rana Abdul Majid Shaheen for Petitioner

2003 C L C 1624

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

SAID BIBI---Petitioner

Versus

MUHAMMAD ARIF---Respondent

Writ Petition No. 11958 of 2002, heard on 13th June, 2003.

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

----S. 5 & Sched---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for maintenance allowance---Suit was filed on ground that Nikah of plaintiff was performed during her minority in exchange (Watts Satta), her Rukhsati did not take place, she kept waiting for her Rukhsati by defendant who without her permission had re­-married and that plaintiff had reached age of 40 years and that she was still sitting as legally wedded wife of defendant who had threatened her that he would keep her sitting in such position all her life---Family Court decreed the suit of plaintiff in sum of Rs.1,000 per month from date of her marriage till persistence of her marriage, but Appellate Court reversed the judgment and decree of Family Court---Validity---Marriage solemnized during minority, was not registered arid evidence on record had established that defendant had not made any effort to restitute his conjugal rights---Bad blood existed between the parties as exchange marriage had ended into divorce on the other side---No eventuality, in circumstances, existed that plaintiff could go and live with defendant especially when defendant had remarried without consent of plaintiff--­Such circumstances had shown that plaintiff had sound reasons not to live with defendant- --Judgment of Appellate Court, in circumstances, was entirely erroneous as it was hasty and was not based on evidence on record---Past maintenance could not be allowed beyond period of six years, rate of maintenance of Rs.1,000 per month as allowed by the Family Court; was modified to Rs.500 per month for a period of six years from the date of institution of suit and at rate of Rs.1,000 per month in future from date of decision of suit till subsistence of marriage---Judgment of Appellate Court suffering from legal infirmity was set aside and judgment of Family Court was restored with said modification.

M. Mukhtar Ahmad Talokar for Petitioner.

Imtiaz Hussain Khan Baluch for Respondent.

Date of hearing: 13th June, 2003.

2003 C L C 1628

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ZAMAN---Petitioner

Versus

NAZIR AHMED and 2 others---Respondents

Civil Revision No.64-D of 1995, heard on 24th April, 2003.

Specific Relief Act (I of 1877)---

----S. 8---Limitation Act (IX of 1908), Arts. 142 & 144---Suit for possession---Adverse possession, plea of---Trial Court dismissed suit as time-barred after finding plaintiff to be owner of suit-land and rejected defendant's plea of adverse possession as not proved---Appellate Court dismissed plaintiff's appeal---Validity---Defendant had not questioned findings of Trial Court about his plea of adverse possession and ownership of plaintiff before Appellate Court or High Court---Article 142 of Limitation Act, 1908 would not apply as plaintiff had proved neither his possession over suit-land nor his dispossession by defendant---Starting point of limitation under Art. 144 of Limitation Act, 1908 was when possession of defendant became adverse to plaintiff---Finding of Courts below was that possession of defendant was not adverse---Courts below had, thus, acted without jurisdiction in finding suit to be barred by time---Possession of defendant not being adverse, whatever length of same might be, would not result in extinguishment of plaintiff's title---So long as title vested in the plaintiff, he would be entitled to get possession of land on basis of title---High Court accepted revision petition, set aside impugned judgments/decrees and decreed the plaintiff's suit.

Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 and Alam Din alias Alam Sher and 3 others v. Alam Din PLD 1990 SC (AJ&K) 1 ref.

Ch. Naseer Ahmad Tahir for Petitioner.

Muhammad Younas Bhatti for Respondents.

Date of hearing: 24th April, 2003.

2003 C L C 1640

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD IQBAL and 2 others through Legal Heirs---Appellants

Versus

MUHAMMAD LATIF and others---Respondents

Regular Second Appeal No.44 of 1992, heard on 15th April, 2003.

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

----S. 100---Second appeal lies only on grounds mentioned in S.100, C.P.C., but not on question of fact.

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

----S. 100---Concurrent findings of fact---No error of law committed by Courts below in arriving at such findings---Same would not call for any interference by High Court in second appeal.

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

----S. 100---Concurrent findings of fact---Not liable to be interfered with by High Court in exercise of appellate jurisdiction under S.100, C.P.C.

Abdul Ghani v. Muhammad Akhtar 1988 SCMR 801; Muhammad Shafi and another v. Sher Ali 1970 SCMR 510; Maran Bepari v. Madan Gopal and 4 others PLD 1969 SC 617 and Tassawar Shah and others v. Mst. Sadiqan and others 2001 CLC 1698 rel.

Muhammad Shahzad Shaukat for Appellants.

Rana Abdul Rahim Khan for Respondents.

Date of hearing: 15th April, 2003.

2003 C L C 1652

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD SHAIQ HUSSAIN----Petitioner

Versus

SAMIR MANZOOR KHOKHAR---Respondent

Civil Revisions Nos.454-D and 455-D of 2001 decided on 19th May, 2003.

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

----O. XX, R.5---Inter-connected issues---Disposal of such issues together would not cause any prejudice to a party.

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

----S. 115 & O. XVIII, R. 5---Qanun-e-Shahadat (10 of 1984), Art.2(1)(e)---Reproduction of evidence of one case in other---Raising such objection for the first time in revision before High Court---Validity---Evidence in both cases had been recorded on same dates---At conclusion of each statement, there was endorsement "ﺎﻴﻜﻢﻴﻠﺳﺘﺖﺴﺭﺩﺭﻜﻥﺳ" which had been duly singed by Trial Judge---Petitioner (defendant) had fully participated in proceedings before Trial Court, but had not raised any objection nor pointed to any defect in procedure---Petitioner did not contend that he was not present before Court or that such endorsement under his statement was incorrect---Petitioner had not raised such objection in memo of appeal---No prejudice had been caused to petitioner by alleged irregularity in procedure---No equity existed in favour of petitioner---Such objection raised in revision was an afterthought and not in good faith---High Court dismissed revision petition.

Shamsul Haq and 3 others v. Muhammad Jamil PLD 1996 Lah. 235; Shabbir and 2 others v. Mst. Ghulam Fatima 1987 CLC 1407; Nazir Ahmad v. Mst. Ghazala Bashir 2001 CLC 468 and Muhammad Younas v. The Crown PLD 1953 Lah. 321 distinguished.

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

----Art. 129(e)---Presumption of correctness attaches to all judicial and official proceedings, unless contrary is proved.

(d) Administration of Justice---

---- All procedures are basically meant for advancement of substantial justice---Law never favours making, of a fetish of a technicality.

Messrs Bisvil Spinners (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others PLD 1992 SC 96 rel.

(e) Administration of justice---

---- In order to seek justice, one must be fair and should do justice himself.

Sardar Muhammad Aslam for Petitioner.

Sh. Zameer Hussain for Respondent.

Date of hearing: 9th May, 2003.

2003 C L C 1661

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

GHULAM MUSTAFA KHAN---Petitioner

Versus

ASHIQ HUSSAIN and others---Respondents

Writ Petition No. 16498 of 2002, decided on 20th June, 2003.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 24(1)---Limitation Act (IX of 1908), Ss.4, 5 & 12--­ Constitution of Pakistan (1973), Art. 199---Suit for pre-emption-- -Deposit of `Zar-e-Soim", limitation for---Suit filed on 15-3-2002 was fixed before Court on 16-3-2002 as Court-time was over---Court, on 16-3-2002, directed plaintiff to deposit Zar-e-Soim within 30 days and plaintiff deposited amount of Zar-e-Soim on 15-4-2002---Defendant in his application filed for rejection of suit had contended that as 30th day of filing of suit, fell on 13-4-2002, deposit of Zar-e-Soim by plaintiff on 15-4-2002 was patently beyond limitation prescribed by law and that such deposit was in contravention of provisions of S.24(1) of Punjab Pre­-emption Act, 1991---Application filed by defendant was concurrently dismissed by Courts below---Validity---Suit though was filed on 15-3-2002, but as on that day Court time was over, no order for deposit of Zar-e-Soim was made on that day and was made on 16-3-2002---If date of institution of suit was excluded then limitation period of 30 days was to expire on 14-4-2002, but on that date it was Sunday and Courts were closed---According to S.4 of Limitation Act, 1908 whenever a limitation expired on day when Courts were closed of limitation would expire on the day when Courts would re­open----Deposit of Zar-e-Soim on 15-4-2002 when Court re-opened, was lawful as same was within time---Courts below rightly dismissed application of defendant filed for rejection of suit---Concurrent findings of Courts below being unexceptional, could not be interfered with in Constitutional petition.

(b) Limitation Act (IX of 1908)---

----Preamble---Object of Limitation Act, 1908---Object of law of limitation was to regulate the Courts and manners for providing relief or remedy within a certain regulated period by the Statute which governed the suit---If in the relevant Statute there was a legal vacuum not providing the manner as to how the statutory period would be computed in fulfilling a statutory legal formality or obligation within the specific time, then it was always the wisdom under law to meet the legal requirements under the general law which was co-related with the statute.

Hamid Ali Mirza for Petitioner.

Mian Maqsood Ahmad for Respondent No. 1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 16th June, 2003.

2003 C L C 1665

[Lahore]

Before Maulvi Anwarul Haq and Tanvir Bashir Ansari, JJ

BEGUM ZAIBUN NISA KURESHY and 5 others---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Rawalpindi and 2 others---Respondents

Intra-Court Appeal No. 161 of 2001 in Writ Petition No.707 of 1996, heard on 7th May, 2003.

Cantonment Code, 1899---

----S. 259---C.L.A. Rules, 1937, Sched. VIII---Cantonment Code Lease, Form B, Condition II---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Regularization of sub-division of site for construction of additional building under Condition II of Cantonment Code Lease dated 6-4-1905---Petitioner sought such permission on payment of enhanced rent without payment of premium---Authority on 26-5-1982 offered to regularize sub-division of site subject to conversion of lease into Schedule VIII of C.L.A. Rules, 1937 on payment of prevalent rate of rent and premium---Petitioner, after accepting such offer through letters addressed to Authority, again sought permission without payment of premium, but same was refused---High Court in Constitutional petition allowed sub-division of site subject to payment of land rent with premium at prescribed rate prevailing during year 1982--­Validity---According to Condition II of Cantonment Code Lease, proposed construction could be made with written permission of Competent Authority, but subject to any condition to be agreed between Authority and lessee---Offer made by Authority through letter, dated 26-5-1982 was in clear and unambiguous terms, which had been categorically and repeatedly accepted by petitioner through his letters--­Such conduct of petitioner would amount to condition agreed upon between Authority and lessee as contemplated in such Condition II--­Impugned order had safeguarded interest of petitioner---Intra-Court appeal was dismissed.

Riffat Saghir Kureshy for Appellants.

Mrs. Nabila Mehboob Elahi for Respondents.

Date of hearing: 7th May, 2003.

2003 C L C 1681

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

MUHAMMAD SADIQ---Petitioner

Versus

PROVINCE OF PUNJAB---Respondent

Civil Revision No.2124 of 1995, heard on 17th June, 2003.

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

----Ss. 10 & 30---Allotment of land---Proprietary rights, grant of--­Allottee of land in dispute under Temporary Cultivating Scheme of 1979 as a landless tenant, applied for proprietary rights under said Scheme, but he was refused said rights on ground that he was not a continuous cultivator of land in dispute from Rabi 1977---During pendency of earlier application of allottee, another Scheme carne in 1983 wherein target date for cultivation was Rabi 1980---Allottee could not apply for grant of proprietary rights under said later Scheme of 1983 as his earlier application was pending adjudication---Subsequently he filed application under later Scheme after decision of his earlier application, but same was dismissed on ground that it was filed after a delay of long time--­Evidence on record had proved that allottee was in continuous cultivating possession of suit-land and that he had developed same spending a huge amount of money and he had installed a tubewell there---Eligibility of allottee for proprietary rights under later Scheme of 1983, was according to terms and conditions of the said Scheme---Revenue Courts had not taken into consideration fact that it was not the fault of allottee in not filing of application for conferment of proprietary rights in time as he was waiting the decision of his earlier application filed under Scheme of 1979---Unless and until that was decided allottee could not apply under the second Scheme---Land in dispute was still available for allotment and allottee had fulfilled all obligations of terms and conditions of conferment of proprietary rights---Judgment and decree passed by Court below and orders of Revenue Authorities were set aside and allottee was directed to move District Officer Revenue who would hear and decide matter afresh.

Mirza Mehmood Baig for Petitioner.

Akhtar Ali Qureshi, Asstt. A.-G., Punjab for Respondent.

Date of hearing: 17th June, 2003.

2003 C L C 1684

[Lahore]

Before Abdul Shakoor Paracha, J

CAPITAL DEVELOPMENT AUTHROITY, ISLAMABAD---Petitioner

Versus

Sheikh MUHAMMAD HANIF---Respondent

Civil Revision No.599/D of 2001, heard on 9th June, 2003.

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

----S. 115 & O. XIV, Rr. 1, 2---Non-framing of issue---Raising such objection of first time before High Court in revision---Validity---Issue was correctly worded and framed by Trial Court---Both parties throughout trial were fully cognizant of such issue, which had really arisen out of their pleadings and they had adduced evidence in respect thereof---No prejudice had been caused to petitioner on account of failure of Trial Court to frame proper issue in suit---Petitioner had not raised such objection during trial or in memo. of appeal before Appellate Court---High Court repelled contention of petitioner in circumstances.

Mehr Din v. Dr. Bashir Ahmad Khan and 2 others 1985 SCMR 1 rel.

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

----O. XIII, Rr.1, 4 & S.115---Capital Development Authority Ordinance (XXIII of 1960), S.49-F---Internal office noting---Objection as to its admissibility in evidence not raised at time of its production in evidence, but raised in revision before High Court---Objection so raised was of no substance.

Malik Din and another v. Muhammad Aslam PLD 1969 SC 136 fol.

(c) Capital Development Authority Ordinance (XXIII of 1960)---

----Preamble---Capital Development Authority---Duty of---Authority being a statutory body was expected to deal with citizens fairly, and honestly and conduct its all actions transparently.

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

----O. XLI, Rr. 30 & 31---Rule laid down in O.XLI, R. 31 is mandatory and should be followed to enable Appellate Court to decide matter in accordance with law.

Iftikharuddin Haider Gardezi and 9 others v. Central Bank of India Limited 1996 SCMR 669; Jumma Khan v. Mst. Shamim and 3 others 1992 CLC 1022 and Malik Din and another v. Muhammad Aslam PLD 1969 SC 136 ref.

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

----S. 115---Concurrent findings of fact recorded by competent Court on basis of evidence---Validity---Such findings could not be interfered with by High Court in exercise of revisional jurisdiction.

Malik Muhammad Nawaz for Petitioner.

Syed Najamul Hassan Kazmi for Respondent.

Date of hearing: 9th June, 2003.

2003 C L C 1692

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. REHMAT JAN and 24 others---Petitioners

Versus

MUHAMMAD JAHANGIR and 7 others---Respondents

Civil Revision No.69 of 2000, heard on 13th May, 2003.

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Ss.20, 28 & Art. 148---Suit for declaration---Acquisition of title by prescription---Plaintiff filed suit on 19-1-1987 claiming to have become owner of mortgaged land on account of defendants' failure to redeem same within sixty years expiring on 4-3-1979---Trial Court on 3-3-1991 partly decreed the suit declaring plaintiff to be mortgagee of suit-land, but refused to grant declaration of title as S.28 of Limitation Act, 1908 had been declared repugnant to Injunctions of Islam by the Supreme Court---Appellate Court upheld such decree---Validity---Suit could not be dismissed on the basis of the judgment of Supreme Court as it had no retrospective effect, rather same was having effect on the date specified therein---Plaintiff had repeatedly averred in plaint to be mortgagee in possession of suit-land---Equity of redemption, thus, could not be said to have extinguished---High Court dismissed revision petition.

Maqbool Ahmad v. Hakmoomat-e-Pakistan 1991 SCMR 2063; Samar Gul v. Central Government and others PLD 1986 SC 35; Abdul Haq v. Ali Akbar and 12 others 1998 CLC 129 and 1999 SCMR 2531 rel.

Muhammad Yaqub Malik for Petitioners.

Munir Ahmad Kiani for Respondents.

Date of hearing: 13th May, 2003.

2003 C L C 1695

[Lahore]

Before Abdul Shakoor Paracha, J

KHURSHID ANWAR JALIL and 6 others---Petitioners

Versus

MUHAMMAD HAFEEZ MIRZA and 14 others---Respondents

Civil Revision No.351 of 2002; heard on 13th May, 2003.

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

----O. XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Necessary ingredients; prima facie case, irreparable loss and balance of convenience---Such ingredients must co-exist in favour of party king restraining order in his favour.

Umer Baig's case PLD 1970 SC 139 fol.

(b) Co-sharer---

----Joint immovable property ---Co-sharer's right---Extent---Every joint owner shall be deemed to be in possession of each and every inch of joint property---If strong co-sharer after taking possession of more valuable part of joint property either alienates same or changes its character, then it cannot be said that weak/poor co-sharer may file suit for partition and till its decision, strong co-sharer may alienate same or change its character and throw his adversary into ditches or barren land by taking commercially valuable land abutting on road side or more fertile land--­Such course cannot be allowed under principles of equity and justice.

Muhammad Muzaffar Khan .v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9; Ali Gohar Khan v. Sher Ayaz and others 1989 SCMR 130; Atta Muhammad v. Sahibzada Manzoor Ahmad and others 1992 SCMR 138; PLD 1988 SC 1509 and Muhammad Abid and 2 others v. Nisar Ahmad 2000 SCMR 780 rel.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Prayer for temporary injunction to restrain defendant (co-sharer) from alienating joint property---Trial Court refused to grant such temporary relief, but Appellate Court granted the same---Validity---All ingredients for grant of temporary injunction co-existed in favour of plaintiff---Non-passing of order to restrain defendant from alienating joint property would have resulted in multiplicity of proceedings---Appellate Court had not committed any irregularity or illegality in setting aside order of Trial Court---High Court dismissed revision petition.

Kashori Lal and others v. Khair Din and others AIR 1937 Lah. 288; Muhammad Abid and 2 others v. Nisar Ahmad 2000 SCMR 780 and Zulfiqar and others v. Noor Muhammad and others 2002 CLC 711 ref.

Maulvi Ijaz-ul-Haq for Petitioner.

Noor Muhammad Niazi for Respondents.

Sh. Ijaz Ali Siddiqui on behalf of Sh. Zameer Hussain for Respondent.

Date of hearing: 13th May, 2003.

2003 C L C 1705

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. SULTANA BEGUM---Petitioner

Versus

Mst. SADIQA BEGUM---Respondent

Civil Revision No. 148 of 2002, heard on 16th May, 2003.

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

----S. 12---Civil Procedure Code (V of 1908), S.148---Decree in suit for specific performance of agreement to sell fixing time for payment of balance price---Extension of time---Court has power to enlarge such time after objectively assessing merits of application.

Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others PLD 1997 Lah. 177 ref.

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

----S. 12---Civil Procedure Code (V of 1908), S.148---Decree in suit for specific performance of agreement to sell---Time fixed in decree for payment of balance price---Trial Court extended such time on application of decree-holder contending that due to certain difficulties, she could not deposit amount---Validity---Not a single reason had been stated in application for extension of time nor particulars or details of such difficulties were given therein---Impugned order was also without any reason---Sine qua non for grant of discretionary relief of specific performance that party must always be ready and willing to perform his part of contract---Part to be performed by decree-holder was payment of balance price---Prayer made in application was negation of condition precedent for grant of such relief---Trial Court had acted without jurisdiction to allow application, when no ground had been either stated or made out for extension of time---High Court accepted revision petition and set aside impugned order, resultantly application for extension of time stood dismissed.

Asraf Ali alias Asrafuddin Mondal and another v. Bayla Hasda and others PLD 1967 Dacca 557; Asim Hussain Qadri v. Muhammad Umar 1999 MLD 1466; Nasir Ahmad v. Muhammad Yousaf PLD 1994 Lah. 280; Muhammad Riaz Qamar v. Umar Din and others 1985 CLC 474 and Nizam-ud-Din and 13 others v: Ch. Muhammad Saeed 1987 CLC 1682 ref.

Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others PLD 1997 Lah. 177 rel.

Raja Imran Aziz for Petitioner.

Sana Ullah Zahid for Respondent.

Date of hearing: 16th May, 2003.

2003 C L C 1711

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs JAMIL & CO. through Proprietor---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary, Communication and Works Department, Civil Secretariat, Lahore and 4 others---Respondents

Writ Petition No. 19154 of 2002, heard on 21st May, 2003.

(a) Approbate and reprobate---

---- No one is allowed to approbate and reprobate.

Ghulam Rasool's case PLD 1971 SC 376 fol.

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

----Art. 199---Constitutitinal petition---Rescission of contract by Authority without notice to the petitioner---Objection of Authority was that petitioner had alternative remedy to invoke arbitration clause, thus, Constitutional petition was not maintainable---Validity---Such objection had no force.

Messrs Wak Orient v. Government of Pakistan 1998 CLC 1178 and Shaukat Ali's case PLD 1997 SC 342 fol.

(c) Administrative decisions---

---- Public functionaries are duty bound to act justly, fairly, equitably, reasonably and without discrimination.

Messrs Airport Sport Services' case 1998 SCMR 2268 fol.

(d) General Clauses Act (X of 1897)---

---Duty of public functionaries to take action against a person with reasons.

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

----Art. 199---General, Clauses Act (X of 1897), S.24-A---Constitutional was that notice sent by the Authority was received by him on the date on which contract was rescinded, thus, such action of Authority was without notice to him---Validity---Impugned order did not contain any reason and was also hit by principle of natural justice as petitioner had not been properly served---High Court set aside impugned order with directions to Authority to pass fresh order after providing proper hearing to all parties including petitioner, and in case any officer/official was found responsible for any mischief, then take action against him under Efficiency and Disciplinary Rules and initiate criminal proceedings against him.

I.C.A. No.780 of 1998; C.P. No.279/L of 2000 and Messrs Wak Orient v. Government of Pakistan 1998 CLC 1178 ref.

University of Dacca v. Zakir Ahmad PLD 1965 SC 90; Pakistan and others v. Public at Large PLD 1987 SC 304 and Pakistan Chrome Mines Limited v. Inquiry Officer 1983 SCMR 1208 rel.

(f) Administrative decisions---

---- Nobody should be penalized by act of public functionaries.

Ahmad Latif Qureshi's case PLD 1994 Lah. 3 fol.

(g) Natural justice, principles of---

----Principles of natural justice must be read in each and every statute, unless and until same is prohibited by wording, of statute.

Commissioner of Income-tax v. Fazal-ur-Rehman PLD 1964 SC 410 fol.

Ashtar Ausaf Ali for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. for Respondent.

Date of hearing: 21st May, 2003.

2003 C L C 1715

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD NAWAZ and others---Petitioners

Versus

MUHAMMAD RAMZAN and others--Respondents

Civil Revisions Nos.87-D and 88-D of 2003, decided on 12th June, 2003.

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

----S. 54---Transfer of immovable property---Agreement of sale---Mere agreement in writing would not create any right, title or interest in immovable property irrespective of the fact that instalments of price of the property in dispute had been paid---Contention that agreement deeds were sufficient to prove title in respect of property, was repelled because transfer of immovable property, worth Rs.100 or more, could only be transferred by a registered instrument of transfer.

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

----Ss. 42, 54 & 55---Civil Procedure Code (V of 1908), O.VI, R.17 & O.XLI, R.27---Suit for declaration, prohibition and mandatory injunction---Amendment in plaint---Additional evidence, production of--­Plaintiffs, who had filed suit for declaration; prohibition and mandatory injunction, filed application seeking amendment in their plaint so as to include plea of adverse possession---Said application was rightly rejected by Appellate Court as plea of adverse possession was available to plaintiffs at the time of the filing of the suit.

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

----S. 115---Revisional jurisdiction, exercise of ---Scope---Revisional jurisdiction was to be exercised against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusions of fact or law not involving question of jurisdiction---Findings of both Courts below were based on evidence and were supported by sound and plausible reasoning---Such findings could not be interfered with in revisional jurisdiction of High Court.

Kh. Noor Mustafa for Petitioner

Syed Hamid Ali Shah Mir for Respondents.

Date of hearing: 5th June, 2003.

2003 C L C 1718

[Lahore]

Before Ch. Ijaz Ahmad, J

Professor YAMEEN-UD-DIN, ADVOCATE---Petitioner

Versus

LAHORE GRAVEYARD COMMITTEE through Deputy Commissioner/Chairman and another---Respondents

Writ Petition No. 18706 of 1998, heard on 29th May, 2003.

(a) Constitution of Pakistan (1973)---

----Art. 4---General Clauses Act (X of 1897), S.24-A---Duty of public functionaries is to act justly, fairly, without any element of discrimination and squarely within parameters of law as envisaged by Art. 4 of the Constitution.

Shaukat Ali's case PLD 1997 SC 342 and Messrs Airport Support Service's case 1998 SCMR 2268 rel.

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

----Preamble---Constitution is a social binding between Legislature, executive, judiciary and citizens---Constitution is based on trichotomy of power---Jurisdiction of Court is to interpret law and not to take role of Legislature or policy-maker.

Zia-ur-Rehman and others' case PLD 1973 SC 49 and Mian Muhammad Nawaz Sharif’s case PLD 1993 SC 473 rel.

(c) Miani Sahib Graveyard Ordinance (XLIV of 1962)---

----S. 6---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Encroachment on land of graveyard---Petitioner's grievance was that Lahore Graveyard Committee was reluctant to initiate proceedings against encroachers on his complaint---High Court directed Committee, Municipal Corporation, Provincial Government and Inspector-General of Police to perform their duties in accordance with law keeping in view provisions of Punjab Local Government Ordinance, 2001 and Miani Sahib Graveyard Ordinance, 1962 and initiate civil as well as criminal proceedings against encroachers.

Civil Petition for Leave to Appeal No.305 of 2002 ref.

Dr. Hameed Ahmad Ayaz for Petitioner.

M. Hanif Khatana, Addl. A.-G. for Respondent No. 1.

Kh. M. Afzal, Legal Adviser, for Respondent No.2.

Date of hearing: 29th May, 2003.

2003 C L C 1724

[Lahore]

Before Abdul Shakoor Paracha, J

Syed MUNAWAR HUSSAIN SHAH---Petitioner

Versus

YAR MUHAMMAD KHAN and 5 others---Respondents

Civil Revision No.659 of 2001, heard on 12th May, 2003.

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

----S. 47, O. XX, R.1 & O.XXI, R.35(2)---Punjab Pre-emption Act (IX of 1991), S. 5---Execution of decree in pre-emption suit for a share in joint property---Executing Court dismissed execution petition on the ground that pre-emptor was entitled to issuance of warrants of symbolic joint possession to the extent of his share and not for delivery of actual possession by partition of joint property---Appellate Court upheld such findings---Validity---Subject decree was not regarding a definite property, but was for a share in joint property, thus, O.XXI, R.35(2), C.P.C., would apply thereto ---Vendee had not purchased specific Khasras numbers out of joint property and had not entered into possession of a definite property ---Pre-emptor would be entitled to issuance of warrants of symbolic possession of land to the extent of share regarding which suit had been decreed, but not for physical possession thereof---High Court dismissed revision petition.

Messrs Woolyways, Shop-cum-Office, Chandigarh and others v. Central Bank of India AIR 1990 Punj. & Har. 92 ref.

Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640; Ali Shah v. Allah Ditta and 6 others 1994 CLC 800 and Muhammad Inayat v. Ghulam Murtaza PLD 1987 Lah. 537 rel.

(b) Execution---

----Executing Court could not go beyond decree.

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

-----S. 115---Concurrent findings of fact recorded by two Courts of competent jurisdiction---Validity---Such findings could not be interfered with by High Court in exercise of revisional jurisdiction under S.115, C.P.C.

Mujeebur Rehman Kiani for Petitioner.

Malik Muhammad Kabir for Respondents.

Date of hearing: 12th May, 2003.

2003 C L C 1730

[Lahore]

Before Ch. Ijaz Ahmad and Abdul Shakoor Paracha, JJ

Ch. RIYASAT ALI, ADVOCATE---Appellant

Versus

RETURNING OFFICER and 2 others---Respondents

Intra-Court Appeal No.213 of 2001 in Writ Petition No.25101 of 2000 decided on 8th May, 2003.

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

----Ss.5-C & 16---Constitution of Pakistan (1973), Arts. 199 & 260---Law Reforms Ordinance (XII of 1972), S.3---Constitutional petition---Election of Bar Council---Respondent was declared as returned candidate, but later on, he was appointed as Head of Prosecution and Monitoring Cell in Law Department on contract, basis---Chairman, Bar Council dismissed petitioner's application seeking to be declared as returned candidate in place of respondent, who ceased to be Member of Bar Council after accepting such assignment---Order of High Court dismissing Constitutional petition of petitioner was challenged in Intra-Court Appeal---Respondent thereafter resigned from said post---Petitioner later on applied to Chairman Bar Council to declare him as returned candidate in place of another Member of Bar Council appointed subsequently as Assistant Advocate-General---Contention of respondent was that Intra-Court Appeal had become infructuous on account of such subsequent events---Validity---Petitioner had produced copy of subsequent application and order passed thereon--­Intra-Court appeal had become infructuous---High Court, while taking notice of such subsequent event directed the Chairman Bar Council to notify the petitioner as Member of Bar Council in place of Member of Bar Council, who had been subsequently appointed as Assistant Advocate-General.

Brother Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543; Messrs Modern Continental Business (Pvt.) Limited v. Government of Pakistan and others 2002 CLC 233; Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32; Syeda Abida Hussain v. Tribunal for N.A. 69, Jhang IV PLD 1994 SC 60; D.R. Gurushanthappa v. Abdul Khuddus. Aware and others AIR 1969 SC 744; Understanding Statutes, Canons of Construction of Second Edition by Mr. S. M. Zafar Advocate; Muhammad Khursheed Khan v. Returning Officer 1998 SCMR 425; Sabru Din v. Mushtaq Hussain Bhatti and 2 others PLD 1993 SC 412; Muhammad Shafiq v. Returning Officer 1983 SCMR.105; Muhammad Hussain Shah v. Muhammad Shafiq 1983 SCMR 172; Abdul Majeed Khan v. The Chief Settlement Rehabilitation Commissioner PLD 1968 SC 154 and Saif Ullah v. Selection Committee for Admission 2001 YLR 2014 ref.

Muhammad Khursheed Khan v. Returning Officer 1998 SCMR 425 fol.

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

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Constitutional petition ---Intra-Court appeal---Subsequent events---Powers as well as duty of Court to take notice of such events---Scope and purpose--­Discussed.

Court is entitled to take notice of subsequent events for purpose of doing full and complete justice to parties and for giving effective relief to petitioner/appellant. In appropriate cases, it is not only the power, but duty of the Court to consider changed circumstances, where it is shown that original relief claimed by petitioner/appellant has, by reason of subsequent change in circumstances, become useless or inappropriate or where it is necessary to take notice of changed circumstances to shorten litigation or a new relief may serve the purpose better or that a relief is required to be re-shaped or moulded in the light of change in facts or in law to do complete justice between parties, the Court is bound to depart from the general rule and mould the relief in. the light of altered circumstances.

Similarly, if during pendency of petition/appeal for getting admission, the petitioner/appellant himself has obtained admission elsewhere, the Court taking into such subsequent event may not grant relief in-his favour.

Mst. Ameena Begum v. Mehr Ghulam Dastgir PLD 1978 SC 220; Lakshmi Animal and others v. Narayanaswami Naicker and others AIR 1950 Mad. 321; Ashish Sharma's case (1986) SCC 1; Pasu Palti's case (1975) 1 SCC 770; Dr. Habib Ullah's case PLD 1973 SC 144; Smt. Swarnalata Biswas v. State of West Bengal and others AIR 1952 Cal. 687; Kanaya Ram v. Rajendra Kumar AIR 1985 SC 371; Muhammad Rashid's case 2001 MLD 548; WAPDA's case 2001 PLC 304 and Muhammad Nazir's case 2001 CLC 767 rel.

Appellant in person.

Hamid Khan for Respondents.

Syed Shabbar Raza Rizvi, A.-G.

Hafiz Abdul Rehman Ansari.

2003 C L C 1742

[Lahore]

Before Farrukh Lateef, J

Mst. KANIZ MAI and others---Petitioners

Versus

Mst. ALLAH JEWAI ---Respondent

Civil Revision No.618 of 2003, decided on 20th June, 2003.

Civil Procedure Code (V of 1908)---

----S.115---Revisional jurisdiction, exercise of---Scope---Interference with decisions regarding matters which were within discretion of subordinate Court, was not warranted in revision unless order was contrary to the principles governing exercise of such discretion or the Court had acted perversely or arbitrarily---Improper exercise of discretion could be corrected in appeal, but not in revision---Revisional jurisdiction was directed against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusions of law or fact not involving question of jurisdiction, however, erroneous they might be---Concurrent orders of Courts below, supported by plausible reasoning and not suffering from any jurisdictional infirmity, could not be interfered with in revisional jurisdiction of High Court.

Azmat Ali Khan Taga for Petitioner.

2003 C L C 1744

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs ROYAL FLYING COACH (PVT.) LTD. through Director---Appellant

Versus

Messrs TOYOTA TSUSHO KAISHA LTD. and another---Respondents

First Appeal from Order No. 108 of 1997, heard on 22nd May, 2003.

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

----O.XVIII, Rr. 2 & 3---Right of rebuttal was not availed by plaintiff--­Effect---Not open to plaintiff to contend that he had not been provided opportunity to lead evidence in rebuttal.

Jhanda v. Muhammad Younas PLD 1994 Lah. 100 fol.

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

----S. 20(1)(c), Expln. II & O. VII, R.10---Suit for recovery of amount as damages on account of breach of contract filed at place L, where agreement for supply of vehicles was allegedly signed by plaintiff and defendant (supplier)---Return of plaint by Trial Court---Validity--­Plaintiff had not proved execution of agreement at place L, which was primary evidence to prove his case---Presumption would be that there was no such agreement on the basis of which suit could be filed at place L---Plaintiff had opened letter of credit in favour of defendant (manufacturer) at place F, where goods were also to be supplied from place K---Money had to be received at place K---Plaintiff had not rebutted defendants' evidence to the effect that defendant (supplier) was not carrying on any business at place L---Nothing was available on record to show that even a fraction of cause of action had accrued at place L, which was condition precedent to file suit at place L in terms of S.20(1)(c), Expln. II, C.P.C.---Trial Court had rightly returned plaint for its presentation before competent Court at place K---High Court dismissed appeal.

Sh. Muhammad Sharif Uppal v. Sh. Akbar Hussain and others PLD 1990 Lah. 229; Jamia Masjid, Sharif Pura v. Mufti Khalil-ur-Rehman 1999 CLC 954; Mian Fazal Muhammad Nizam-ud-Din Baig & Co. v. The Province of West Pakistan and others PLD 1969 Lah. 453; Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494; Bishan Das v. Gurbakhsh Singh and another AIR 1934 Lah. 63(2); Puran Das Chela v. Kartar Singh and others AIR 1934 Lah. 398; Messrs Kadir Motors (Regd.) Rawalpindi v. Messrs National Motors Ltd., Karachi 1992 SCMR 1174; WAPDA and 2 others v. Mian Ghulam Bari PLD 1991 SC 780 and Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63 ref.

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

----O.VII, Rr. 1, 14 & O.XIII, R.1---Documents could be used against that party, who had produced the same.

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

----S. 20, Expln. II---Two parts of Expln. II of S.20, C.P.C., were intended to be distinctive as made out by use of word "or".

Parkash Road Lines Private Limited's case AIR 1985 Mad. 84 fol.

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

----S. 20---Contract Act (IX of 1872), S.213 --- Suit for accounts by principal against the agent-Place of suing---Cause of action in such suit arises at the place, where contract of agency was made or where same was to be performed or where refusal to account took place.

Ram Das Utam Chand's case AIR 1925 Lah. 387; Rowther's case AIR 1920 Low. Bur. 48; Bhag Singh v. Labh Singh and others AIR 1917 Lah. 12; Mul Chan Sanwal Das's case AIR 1919 Lah. 272 and Haji Karamat Hussain v. Naik Khan Muhammad 1986 CLC 6 fol.

Mian Nisar Ahmad for Appellant.

M. Saleem Sehgal for Respondent No. 1.

Muhammad Iqbal Hashmi for Respondent No.2.

Date of hearing: 22nd May, 2003.

2003 C L C 1754

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD RAMZAN and others---Petitioners

Versus

MUHAMMAD MURAD---Respondent

Civil Revision No.234 of 1990, decided on 11th June, 2003.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13 & O. XXXVII, Rr. 2, 3 & 4---Suit for recovery of amount on basis of pronote---Application to appear and defend suit---Ex parte decree, setting aside of---Ex parte decree for recovery of money was passed---Defendants/judgment-debtors filed an application for setting aside the ex parte decree on ground that their service on the summons was not effected and alongwith said application they also filed application for seeking leave to appear and defend the suit---Application for setting aside ex parte decree having been dismissed by Trial Court, defendants had assailed said order in revision---Ex parte decree for recovery of amount was passed on the basis of a pronote and receipt purporting to be executed by defendants---Even if it was accepted that defendants were not served, no defence was disclosed by them in their application on which required investigation in the suit, after setting aside ex parte decree, could take place---Application for seeking leave to appear and defend suit, annexed with application for setting aside ex parte decree also did not disclose any defence---Ex parte decree could be set aside under R.4 of O.XXXVII, C.P.C., under special circumstances and leave to defend suit could be granted to defendants who would be able to show special circumstances warranting setting aside of ex parte decree---Term 'special circumstances' was stricter than the terms "good cause" or "sufficient cause" and would include merits of the case---Defendants having failed to disclose any defence either in their application for setting aside ex parte decree or in their application for seeking permission to appear and defend suit, there was no sense in setting aside ex parte decree with the object of granting leave, to defendants .to appear and defend suit.

Syed Muhammad Ali Gillani for Petitioners.

Muhammad Zafar Khan Sial for Respondent.

Date of hearing: 2nd June, 2003.

2003 C L C 1756

[Lahore]

Before Ch. Ijaz Ahmad, J

AMIR--- Petitioner

Versus

FALAK SHER and another ---Respondents

Civil Revision No.2664 of 1996, heard on 21st May, 2003.

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

----Art. 2(1)(c)---Evidence in civil matters---Rule of preponderance would prevail.

Mst. Zainab v. Majeed Ali and another 1993 SCMR 356 and Muhammad Luqman v. Bashir Ahmad PLD 1994 Kar. 492 fol.

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

----O.XLI, R.33---Duty of Appellate Court---To decide controversy between parties after applying its judicial mind.

Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 fol.

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

----O.XLI, R.22---Without filing cross-objection, respondent could support judgment.

(d) Punjab Pre-emption Act (IX of 1991)---

----Ss.5, 13 & 30---Pre-emption suit---Sale through registered deed--­Talbs---Proof---Dismissal of suit by Trial Court and Appellate Court--­Validity---Evidence as to date of knowledge of sale was contradictory to averments of plaint---Plaintiff's plea was that he .had sent written notice to defendant through registered post, but instead of original copy of notice, he had placed- on record its photo copy, which was not admissible in evidence---Plaintiff could not prove Talbs within prescribed period from date of knowledge in terms of mandatory provisions of S.13 of Punjab Pre-emption Act, 1991---Plaintiff had failed to prove Talb-i-Mowasibat on the basis of evidence on record, which was a condition precedent to file pre-emption suit--­Factum of making Talb-i-Mowasibat was primarily a question of fact, which had been concurrently found against plaintiff---No misreading of evidence by Courts below or jurisdictional defect in impugned judgments had been pointed out---High Court dismissed revision petition.

(e) Registration Act (XVI of 1908)---

----Ss. 47---Punjab Pre-emption-Act (IX of 1991), S.30(a)---Sale effected through registered deed---Effect---Such deed would be a notice qua sale transaction to the whole world---Such presumption was rebuttable, but rebuttal must be based on strong evidence.

(f) Punjab Pre-emption Act (IX of 1991)---

----Ss. 5 & 30---Pre-emption suit---Limitation---Where sale transaction was kept in dark, then suit would be within time from date of knowledge.

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

----S. 115---Concurrent findings of fact---High Court had no jurisdiction to interfere with such findings, unless same were result of misreading or non-reading of evidence or suffering from jurisdictional defect, illegality or material irregularity.

N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 fol.

Badar-ul-Ameer Malik for Petitioner.

Syed Zafar Ali Shah for Respondents.

Date of hearing: 21st May, 2003.

2003 C L C 1764

[Lahore]

Before Muhammad Khalid Alvi, J

ABDUL MAJEED KHAN---Petitioner

Versus

ABDUL QADEER ---Respondent

Civil Revision No. 949-D of 1994, heard on 16th April, 2003.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Limitation Act (IX of 1908), S.12---West Pakistan General Clauses Act (VI of 1956), S.8---Suit for pre-emption---Making of Talb-e-Ishhad--- Limitation---Plaintiff who acquired knowledge of sale of suit-land on 23-6-1992, had dispatched notice of Talb-e-Ishhad on 7-7-1992---Both Courts below dismissed suit 'on ground that Talb-e-­Ishhad had been dispatched by plaintiff after expiry of one day from period of two weeks as provided under S.13, Punjab Pre-emption Act, 1991---Validity---If the day of acquiring knowledge of sale which was 23-6-1992 was excluded, notice issued by plaintiff on 7-7-1992 would come to be on the fourteenth day which would fall within two weeks as provided under S.13(3) of Punjab Pre-emption Act, 1991--­Subsections (1) & (2) of S.12 of Limitation Act, 1908 had provided that for computing period of limitation, the day on which the impugned judgment was pronounced, would be excluded from counting towards period of limitation---Subsection (3) of S.13 of Punjab Pre-emption Act, 1991 also had provided that the day of knowledge of sale was not to be included towards count of two weeks time for the performance of Talb­e-Ishhad---Notice of Talb-e-Ishhad issued on 7-7-1992, in circumstances, was within prescribed period of two weeks---Concurrent judgments and decrees passed by two Courts below were set aside by High Court in Revision.

Muhammad Yousaf and others v. Zafar Ullah 1992 SCMR 117 and Manzoor Hussain Shah v. Fazal Dad and another 2000 SCMR 216 ref.

Kanwar Akhtar Ali for Petitioner.

M. R. Khalid for Respondent.

Date of hearing: 16th April, 2003.

2003 C L C 1768

[Lahore]

Before Tanvir Bashir Ansari, J

NIAZ ALI --- Petitioner

Versus

MUHAMMAD NAZIR and 7 others ---Respondents

Civil Revision No.269-D of 1996, heard on 30th April, 2003.

(a) Witness---

----Fact admitted by witness---Leading of documentary evidence regarding such admitted fact---Relationship of pre-emptor with vendor was admitted by witness of vendee himself---Contention of vendee was that pedigree-table should have been produced to prove the relationship--­Validity---Pedigree-table was not necessary to prove the relationship in view of such circumstances.

Rehmat Ullah v. Abdul Karim 1994 SCMR 399 distinguished.

(b) Punjab Pre-emption Act (I of 1913)---

----Ss.4 & 21---Right of pre-emption, devolving on legal heirs of pre­emptor---Sale price/market price of suit land, enhancing of---Power of High Court in exercise of revisional jurisdiction---Pre-emptor had succeeded in proving her superior right of pre-emption ---After the death of the pre-emptor, her legal heirs were impleaded as pre-emptors---Trial Court dismissed the suit on the ground that the superior right of pre­emption was not inheritable---Appellate Court reversed the finding of Trial Court and allowed the appeal for this reason that the right of pre­emption was inheritable and the case was remanded to Trial Court for deciding the sale price/market value of the suit land ---Plea raised by vendee was that superior right of pre-emption was not inheritable--­Validity---Pre-emptor had succeeded in establishing on record her superior right of pre-emption and after her death the same rights devolved upon her legal heirs---Land in question was sold in the year 1969 for a sale consideration of Rs.4,600, it was against equity if, while awarding a decree for pre-emption the aspect of suitable enhancement in price of the land was not considered---Vendee having admitted that value of the land was not less than Rs.1,00,000 at present---While maintaining decree for pre-emption in favour of pre-emtpors, the sale consideration for the suit land was enhanced to Rs.1,00,000---High Court directed the pre-emptors to deposit the enhanced amount in the Executing Court minus the amount already deposited as Zar-e-Panjum of the original sale-price--­Vendee failed to point out any infirmity or irregularity of procedure in the judgment of Appellate Court warranting interference by High Court in exercise of revisional jurisdiction which was dismissed accordingly.

Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

Abdul Rasheed Awan for Petitioner.

Manzoor Ahmed Rana for Respondent.

Date of hearing: 30th April, 2003.

2003 C L C 1773

[Lahore]

Before Farrukh Lateef, J

MEHR DIN and others---Petitioners

Versus

PROVINCE OF PUNJAB and others ---Respondents

Review Application No. 15 of 2003, decided on 20th June, 2003.

Civil Procedure Code (V of 1908)---

----S. 114 & O. XLVII, R. 1---Review---Main aim of review---Main aim of review was correction of errors not involving process of reasoning or appreciation of law and facts and not for correcting wrong decisions--­While exercising power of review, Court could not hear the matter as an appeal against its own judgment---Review petitioners, in wanted to re-open a finally decided matter and desired the merits involving questions of law and facts---Such review petition being misconceived, was dismissed.

Ch. Abdul Ghani for Petitioner.

2003 C L C 1775

[Lahore]

Before Tanvir Bashir Ansari, J

AMIN-UD-DIN---Petitioner

Versus

Mst. ZARINA---Respondent

Civil Revision No.461-D of 1996, heard on 22nd May, 2003.

(a) Punjab Pre-emption Ad (IX of 1991)--

----S. 13---Right of pre-emption, exercise of ---Talb-i-Muwathibat—­Proof---Failure produce the person who first informed the pre-emptor about the sale---Trial Court decreed the suit in favour of pre-emptor but Appellate Court dismissed the suit on the ground that the pre-emptor had failed to prove Talb-i-Muwathibat as the pre-emptor did not produce the person who first informed him about the sale---Plea raised by the pre­ emptor was that Talb-i-Ishhad had been proved and failure to produce the first informant could not affect the case of the pre-emptor ---Validity--­Pre-emptor had not mentioned any reason in his statement as to why he was unable to produce the witness who first informed him about the sale--- Pre-emptor had stated before High Court that the first informant was attesting witness of the sale-deed and it was for such reason that he was not produced as a witness---Such submission of pre-emptor before High Court was belied by his own evidence recorded in Trial Court wherein he had not stated so---High Court declined to interfere with the judgment and decree passed by Appellate Court.

(b) Punjab Pre-emption Ad (IX of 1991)---

----S. 13---Talb-i-Ishhad---Proof---Truthful witness---Determination--­Principle--- Talb-i-Ishhad cannot be rejected on the ground that the witnesses who signed the notice of Talb-i-Ishhad were not actually described as truthful witnesses by pre-emptor ---Whenever witness makes a statement on oath, such statement is to be recorded as that of a truthful witness unless contrary is proved through cross-examination or by any other evidence in rebuttal.

Haji Moor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Altaf Hussain v. Abdul Hameed 2000 SCMR 314; Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235; Sana Ullah Khan v. Hassan Khan and another 1999 CLC 1735 and Muhammad Anwar and 12 others v. Mahmooda Begum and 5 others 1998 CLC 1190 ref.

Raja Muhammad Hanif Satti for Petitioner.

Syed Qalab-i-Hassan for Respondent.

Date of hearing: 22nd May, 2003.

2003 C L C 1780

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

PROVINCE OF PUNJAB---Appellant

Versus

Sh. FAZALUL HUSSAIN ---Respondent

First Appeal from Order No. 185 of 1997, heard on 14th May, 2003.

(a) Arbitration Act (X of 1940)---

----Ss. 17, 20 & 30---Award, setting aside of---Principles---Dispute between the parties was settled by arbitration and the award was made rule of the Court---Authorities assailed the award on the ground of misconduct but failed to point out any misconduct committed by the arbitrators---Effect---If the arbitrators had adequately considered and decided every item of claim made by the parties and no misconduct was established against them, then law would lean in favour of to holding of award and not vitiating the same---High Court declined to interfere with the award which was made rule of Court.

Sheoram Prasad Ram Narayanlal Bania v. Gopal Prasad Parrneshwardaval Shula and others AIR 1959 Madh. Pra.102; Hitachi Ltd. and another v. Rupali Polyester and others 1998 SCMR 1618; Lahore Development Authority v. Messrs Khalid Jived & Co. 1983 SCMR 718; Zaka Ullah Khan v. Government of Pakistan through Secretary, Buildings and Roads Department, Lahore PLD 1998 Lah. 132; Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1985 SCMR 597; Abdul Rauf v. Muhammad Saeed Akhtar PLD 1958 (W.P.) Kar. 145 and M. A. Ali Mian v. Green & Co. White Ltd. PLD 1964 Dacca 527 ref.

(b) Arbitration ---

---Award, construction of---Principles---Rule of construction of award is that the same should be constructed liberally and in accordance with common sense---Award should be so read that it can be given effect to and not so that it would nullify the efforts of arbitrators appointed by the parties themselves.

Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1985 SCMR 597; Abdul Rauf v. Muhammad Saeed Akhtar PLD 1958 (W.P.) Kar. 145 and M. A. Ali Mian v. Green & Co. White Ltd. PLD 1964 Dacca 527 ref

(c) Arbitration Act (X of 1940)---

----Ss. 14 & 17---Filing of award in Court---Territorial jurisdiction of Court---Tender of work was accepted at place 'L' and all work functionaries of the Government Department had their head offices at place 'L'---Authorities remained silent on the point of jurisdiction during the proceedings before Court at place 'L', and the Court made the award as rule of Court---Authorities having refrained to challenge the jurisdictional point of Court at the right time and right place, they could not agitate the same at appellate stage before High Court---Court below had rightly decided the issue relating to the jurisdiction while making the award rule of the Court.

Muhammad Riaz Lone for Appellant.

Riaz Karim Qureshi for Respondent.

Date of hearing: 14th May, 2003.

2003 C L C 1785

[Lahore]

Before Maulvi Anwarul Haq, J

AKBAR---Petitioner

Versus

MEHR KHAN and 25 others---Respondents

Civil Revision No.346-D of 1996, heard on 7th May, 2003.

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

----Ss. 39 & 44---Entries in Periodical Records---Columns---Proof of ownership---Presumption of correctness is attached only to Column No.3 of ownership and Column No. 4 of possession---Entries in Column No.9 of Periodical Records pertaining to Lagan are not to take precedence over any of the other two columns unless and until its entries are independently proved by the person who claims benefit of the same.

Shad Muhammad v. Khan Poor PLD 1986 SC 91 ref.

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

----S. 42---Punjab Tenancy Act (XVI of 1887), Ss.38 & 114---West Pakistan Land Revenue Act (XVII of 1967), Ss.39 & 44---Title on the basis of adverse possession---Termination of occupancy tenancy---Entries in Record of Rights---Petitioner claimed his ownership over the suit-land on the basis of adverse possession as he was continuously being recorded as a non-occupancy tenant in columns of possession and he had not been paying any rent to the respondents---Validity---Such entry in the Record of Rights would not make possession of the petitioner adverse to the respondents---Title stood vested in the respondents by operation of S.114 of Punjab Tenancy Act, 1887---Respondents were occupancy tenants in the disputed land---Even if recorded owners of the land would have taken over the possession, the occupancy tenancy would not extinguish unless and until abandonment was proved in terms of S.38 of Punjab Tenancy Act, 1887---High Court declined to interfere with the judgments and decrees of the Courts below.

Syed Abdul Aziz Shah for Petitioner.

M. Amir Butt for Respondents.

Date of hearing: 7th May, 2003.

2003 C L C 1787

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

MUHAMMAD AKRAM---Petitioner

Versus

Mst. SHAKEELA BIBI and others ---Respondents

Writ Petition No.7012 of 2003, decided on 28th May, 2003.

(a) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2(vii)---Muslim Family Laws Ordinance (VIII of 1961), S.8---Option of puberty---Plea of Khula', non-exercise of---Effect---Family Court can decree the suit for dissolution of marriage even on exercise of option of puberty without dissolving the marriage on the basis of Khula'.

(b) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2(vii)---West Pakistan Family Courts Act (XXXV of 1964), S.5--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Dissolution of marriage---Exercise of option of puberty---Duties of Family Court---Non-pleading of plea of Khula'---Plaintiff was married to respondent when she was three months old---On attaining the age of puberty, the plaintiff exercised her right and repudiated Nikkah--­Defendant already had two wives and two children---Family Court dissolved the marriage on the ground of Khula' and decreed the suit in favour of plaintiff---Plea raised by the defendant was that the Family Court could not dissolve the marriage as the plea of Khula' was not pleaded by the plaintiff---Validity---Family Court, in a suit for dissolution of marriage, had to consider whether the spouses could live within the limits prescribed by God---If Family Court was convinced that marriage could not subsist, then the Court could always dissolve the marriage on the basis of Khula', even if it was not pleaded in the plaint---Defendant was already having two wives and two children and had ulterior designs for capturing property inherited by the plaintiff---Family Court had rightly dissolved the marriage of the plaintiff---High Court declined to interfere with the judgment and decree passed by the Family Court---Constitutional petition was dismissed in circumstances.

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

----S. 7(2)---Additional evidence, production of---Restraints on such procedure-- Principles---Family Court is restrained by law under the provisions of S.7(2) of West Pakistan Family Courts Act, 1964, not to allow additional evidence or add names of witnesses in schedule--­Schedule cannot be amended and the names of witnesses cannot be added under S.7(2) of West Pakistan Family Courts Act, 1964.

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

----S. 7(2), proviso---Calling of witness at any later stage---Jurisdiction of Family Court ---Scope---Provisions of proviso to S.7(2) of West Pakistan Family Courts Act, 1964, do not mean that Family Court can reopen the schedule to allow the parties to produce additional witnesses.

Khizer Abbas Khan for Petitioner.

2003 C L C 1792

[Lahore]

Before Maulvi Anwarul Haq, J

Hafiz MUHAMMAD ISLAM---Petitioner

Versus

MUHAMMAD BASHIR and another---Respondents

Civil Revisions Nos.62 and 63-D of 1994, heard on 3rd April, 2003.

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

----O. XXXII, R.3(5)---Guardian ad litem, discontinuation of---Minor attaining majority---Effect---Attaining of majority by minor is not a reason for discontinuation of appointment of guardian ad litem---Minor, on attaining of majority is to approach the Court and to make a report and opt to continue with the suit himself as major---On failure to adopt such procedure the authority of guardian ad litem continues and minor is bound by act of the guardian.

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

----O. XXXII, R.7---Compromise by guardian ad litem---Recording of compromise without leave of the Court---Validity---Such compromise is not an absolute nullity but same will not be binding on the minor who has option either to affirm and ratify or avoid---Minor upon attaining majority can challenge the decree passed on such compromise.

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

----O. XXXII, Rr.3 & 7---Compromise of suit by guardian ad litem--­Failure to obtain leave of Court before entering into compromise of suit---Petitioner was minor at the time of compromise and her mother was guardian ad litem and four other sisters of the petitioner were also party---Suit was compromised by the guardian as well as by the other sisters as the interest of all was identical---No allegation was made and no evidence was on record showing that the guardian ad litem acted fraudulently in the matter---Petitioner did not challenge the decree and the proceedings for 10 years after the event and had sold away the house and received the money paid in Court by the purchaser---Plea raised by the petitioner was that she was minor at the time of compromise and no leave of the Court was obtained in terms of O.XXXII, R.7, C.P.C.---Validity---High Court after examination of the entire evidence on record did not find any force in the plea taken by the petitioner and declined to set aside the sale of the share of the minor.

Mst. Sahib-un-Nisa and others v. Mst. Mehmooda Begum PLD 1959 Lah. 511; Ittoli Moidin Koya's son Koyatti and others v. Imbichi Koya and others AIR 1946 Mad. 534; Mst. Afzal Begum and others v. Y.M.C.A. PLD 1979 SC 18 and Jafar Abbas and 2 others v. Ahmad and another PLD 1991 SC 1131 ref.

Ibad-ur-Rehman Lodhi for Petitioners.

Manzoor Ahmad Rana and Malik Muhammad Nawaz for Respondents.

Date of hearing: 3rd April, 2003.

2003 C L C 1798

[Lahore]

Before Sayed Zahid Hussain, J

COMMUNICATION AND WORKS DEPARTMENT through Secretary ---Petitioner

Versus

Messrs PAVITAL/PIVATO JOINT VENTURE and 2 others---Respondents

Civil Revision No. 852 of 2003, decided on 11th June, 2003.

Arbitration Act (X of 1940)---

----Ss. 5, 11, 30 & 33---Qanun-e-Shahadat (10 of 1984), Art. 114--­Setting aside of arbitration proceedings---Principle of estoppel--­Applicability---Remarks by Trial Court---Petitioner had chosen and appointed arbitrator unconditionally, without any reservation and then participated in the proceedings---Petitioner subsequently sought revocation of authority of arbitrators and setting aside of arbitration proceedings---Validity---Conduct of the petitioner did not permit it to resile from its contractual commitments and obligations---Trial Court had rightly applied the principle of estoppel in dismissing the application filed by the petitioner---Mere observation/remarks made in his order that one of the arbitrators, belonged to the superior judiciary would not impair the legal efficacy of the order---High Court declined to interfere in the order passed by the Trial Court as the Court had not acted illegally.

West Pakistan through the Executive Engineer, Rawalpindi v. Messrs Azhar Brothers PLD 1977 Lah. 1013; Province of Punjab and another v: Messrs Industrial Machine Pool, Lahore PLD 1978 Lah 829; Province of Sindh and another v. Haji Khan PLD 1983 Kar. 621; Project Director, Balochistan and Minor Irrigation and Agricultural Development, Quetta Cantt. v. Messrs Murad Ali & Company 1999 SCMR 121; Pakistan Refinery Ltd. v. Pakistan National Shipping Corporation and 2 others 1986 CLC 644; Hasan Amin v. The Capital Development Project Authority, Islamabad through its Chairman 1979 CLC 565 and Messrs Haji Muhammad Sharif Atta Muhammad v. Messrs Khoia Mithabhai Nathoo and others PLD 1960 (W.P.) Kar. 10 ref.

Azmat Saeed for Petitioner.

Bilal A. Khawaja and Aurangzeb Mirza for Respondents.

2003 C L C 1801

[Lahore]

Before Maulvi Anwarul Haq, J

Syed HEHAN SHAH and 2 others- --Petitioners

Versus

Syed KAFAIT HUSSAIN SHAH and 3 others---Respondents

Civil Revision No. 327-D of 1996, heard on 8th May, 2003.

Specific Relief Act (I of 1877)---

---S. 42---Transfer of Property Act (IV of 1882), S.53-A---Title over suit-land---Delivery of-possession in part performance of agreement to sell---Plaintiff claimed to be owner in possession of suit-land on the basis of agreement to sell executed in his favour by the defendant---Plaintiff further alleged that the defendant had received full consideration amount and possession of the suit-land was handed over to the plaintiff in part performance of the agreement---Suit was dismissed by the Trial Court while the Appellate Court allowed the appeal and decreed the suit in favour of plaintiff---Validity---Suit-land was lying vacant and it abutted on the house of defendant---No construction on the land was made and even a boundary wall was raised thus the same did not make out the case of delivery of possession in part performance of agreement---Protection of S.53-A of Transfer of Property Act, 1882, was subject to the condition of a document in writing executed by or on behalf of the transferor and delivery of the possession under the same---Only such unregistered document fulfilled the condition which entitled a transferee to protection---Plaintiff had neither proved any agreement nor its performance including payment of consideration or delivery of possession---Judgment and decree passed by Appellate Court were set aside while one passed by the Trial Court dismissing the suit of plaintiffs was restored.

Fazla v. Mehr Din and 2 others 1997 SCMR 837 ref.

Syed Zulfiqar Abbas Naqvi for Petitioners.

Ch. Afrasiab Khan for Respondents.

Date of hearing: 8th May, 2003.

2003 C L C 1805

[Lahore]

Before Sayed Zahid Hussain, J

IJAZ BAIG and 16 others---Petitioners

Versus

IRSHAD BAIG and 2 others---Respondents

Civil Revision No. 1575-D. of 1993, decided on 20th May, 2003.

(a) Limitation Act (IX of 1908)---

----Ss. 5, 14 & Art. 120---Condonation of delay---Exclusion of time spent in prosecuting time-barred appeal---Validity---Period so spent cannot be excluded while computing period of limitation under Art. 120 of Limitation Act, 1908.

Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762; Langer and others v. Ch. Muhammad Shafi 1994 MLD 2169; Zil Muhammad and 3 others v. Mst. Hayat Bibi and 2 others 1971 SCMR 514 and Mst. Rasul Bibi v. Mst. Rehmat Bibi 1987 SCMR 2036 ref.

(b) Limitation Act (IX of 1908)---

----S. 5---Condonation of delay---Explaining each day's delay---Object and scope---With lapse of time valuable rights accrue in favour of other side that is why a litigant is required to explain each days' delay in approaching Court.

(c) Transfer of Property Act (IV of 1882)---

----S. 41---Transfer by ostensible owner---Entries in Revenue Record--­Effect---Where revenue entries show a person as a sole proprietor of certain land and there are no other circumstances leading the purchasers to go behind the Revenue Records and make any further inquiry, such purchasers are fully protected by the principle underlying S.41 of Transfer of Property Act, 1882.

Dost Muhammad through Legal Heirs .v. Jahangir Khan and another 2000 CLC 1745 ref.

(d) Transfer of Property Act (IV of 1882)---

----S. 41---Transfer by ostensible owner---Concurrent findings of fact by the Courts below---Inquiring from Revenue Authorities before purchase---Plaintiffs assailed mutation of sale on the ground that the same was a result of fraud---Defendant prior to purchase of land, inspected the Revenue Record and entries existing therein where the vendor was shown as owner of the suit property---Trial Court having found the defendant as vigilant purchaser, having purchased the suit property from ostensible owner, dismissed the suit---Judgment and decree passed by the Trial Court was upheld by Appellate Court---Plea raised by plaintiffs was that the vendor being their brother had misused his authority and deprived them of their legal share as nothing was paid to them out of the sale proceeds---Validity---Remedy of plaintiffs lay against the vendor for redressal of their grievance but an innocent purchaser could not be made to suffer---Findings in favour of defendant were concurrent which were duly supported by the evidence on record and could not be disturbed.

Fida Muhammad v. Pir Muhammad Khan through Legal Heirs and others PLD 1985 SC 341; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811; Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489; Muhammad Aslam and another v. Abdul Hamid and others 1991 SCMR 552; Muhammad Yaqoob v. Muhammad Yaqoob Arif and another 1988 CLC 2341; Abdur Rehman v. Abdul Haq and others PLD 1960 (W.P.) Kar. 625; Badaruddin v. Aymana Khatun PLD 1956 Dacca 274; Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Gulab Din v. Muhammad Bashir and another 1986 MLD 877; 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; Muhammad Akram and 2 others v. Muhammad Ashraf and 5 others 1998 CLC 555; Jane Margrete William v. Abdul Hamid Mian 1994 CLC 1437 and Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555 distinguished.

Ahmad Din v. Muhammad Shafi and, others PLD 1971 SC 762; Langer and others v. Ch. Muhammad Shafi 1994 MLD 2169; Muhammad Bashir v. Mst. Sattar Bibi PLD 1995 Lah. 321; Rehman Shah v. Muhammad Shah and others 1974 SCMR 255; Officer on Special Duty, Central Record Officer and others v. Bashir Ahmad and 9 others 1977 SCMR 208; Mukhtar Ahmed v. Bashir Ahmad and others PLD 1994 SC 674; Muhammad Din and another v. Mst. Sardar Bibi and others AIR 1927 Lah. 666; Mulchand v. Smt. Indra and others PLD 1985 Kar. 362; Ismail and 5 others v. Mst. Umar Bibi and 12 others 1982 SCMR 871; Ghulam Haider v. Muhammad Ayub 2001 SCMR 133 and Syed Shaukat Ali Shah v. Additional District Judge, Camp at Shakargarh, District Narowal and 2 others PLD 2003 Lah. 192 ref.

Ch. Ali Muhammad for Petitioners.

Syed Kaleem Ahmad Khurshid for Respondents.

Dates of hearing: 18th, 22nd, 30f, April; 8th and 20th May, 2003.

2003 C L C 1812

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

MUHAMMAD ASLAM and 12 others---Petitioners

Versus

FAISAL NADEEM, and 3 others---Respondents

Civil Revision No.824 of 2003, decided on 13th June, 2003.

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

----S. 115---Limitation Act (IX of 1908), S.5---Revision---Condonation of delay---Revision was filed beyond the period prescribed in S.115, C.P.C.---Petitioner had filed application under S.5 of Limitation Act, 1908, and sought condonation of delay---Validity---Such application was not maintainable as the provisions of S.5 of Limitation Act, 1908, were not applicable to the proceedings under S.115, C.P.C.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 fol.

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

----S. 8---Recovery of possession---Plea of oral gift ---Proof---Concurrent findings of fact by the Courts below---Plaintiff claiming to be owners of the suit property sought recovery of its possession---Defendants asserted that the suit property had been given to them by the predecessor-in-­interest of the plaintiffs as gift---Defendants failed to produce evidence on record in support of their version---Both the Courts below had concurrently decided the matter in favour of the plaintiffs ---Validity--­Claim of the defendants was baseless and both the Courts below had rightly decided the matter in favour of the plaintiffs after appraisal of entire material available on record---Since there was neither any misreading nor non-reading of evidence, nor any jurisdictional defect in the judgment and decree passed by the Appellate Court---High Court declined to disturb concurrent findings recorded by the Courts below.

Sher Muhammad v. Said Muhammad Shah 1981 SCMR 212; Muhammad Ramzan and 4 others v. Settlement Authorities and 2 others 1981 SCMR 194 and Jhanda v. Maqbool Hussain and others 1981 SCMR 126 ref.

Dr. Muhammad Akmal Saleemi for Petitioners.

2003 C L C 1815

[Lahore]

Before Sayed Zahid Hussain, J

MUHAMMAD ILYAS and 4 others---Petitioners

Versus

MUNSHI KHAN---Respondent

Civil Revision No.2781 of 2000, heard on 25th June, 2003.

(a) Punjab Pre-emption Act (IX of 1991)---

---S. 24---Deposit of Zar-e-Soem (pre-emption money)---Failure to deposit Zare-e-Soem within prescribed time---Mistake of Court---No order was passed by Trial Court on the first day of presentation of the plaint while the order for deposit of the money was passed two days later---Trial Court on the later date, directed the pre-emptor to deposit Zare-e-Soem within one month---On the last day of direction, the Trial Court dismissed the suit for non-deposit of Zare-e-Soem while the pre-emptor filed review application before Trial Court on the same contending that the time for deposit had not yet expired when the suit was dismissed---Application was dismissed by the Trial Court but Appellate Court allowed the appeal and remanded the case to Trial Court for decision on merits---Contention of the vendee was that Zar-e-Soem was to be deposited within thirty days from the filing of suit---Validity-If the Trial Court had failed to adhere to and keep in view the relevant provisions of law and the party concerned was misled by its order, such party was not to be made to suffer for such act or omission on the part of Trial Court---Order passed by the Trial Court did not make it clear that the money was to be deposited within thirty days from filing of the suit, rather the direction was to make deposit Zar-e-Soem within one month which was to be computed thenceforth onward---If the intention of Trial Court was to direct the computation of the period from the date of filing of the suit the order should have been clear and unambiguous to such effect---Appellate Court in accepting the appeal did not commit any illegality rather it cured a manifest injustice---High Court declined to interfere with the order passed by Appellate Court in circumstances.

Awal Noor v. District Judge, Karak and 8 others 1992 SCMR 746; Muhammad Ismail v. Jamil-ur-Rehman and 6 others 1995 MLD 1011; Jamshaid Ali and 2 others v. Ghulam Hassan 1995 CLC 957; Riaz Ahmed v. Additional District Judge, Sargodha and another 1999 YLR 336; Afajuddin Molla and others v. Abdur Rahman Sk. and another PLD 1959 Dacca 454; Muhammad Ramjan Sawdagar v. A.H.M. Fazlul Haq PLD 1963 Dacca 987; Holy Trinity Church Trust, Lahore v. Ansari Brothers PLD 1963 (W.P.) Lah; 489; Muhammad Hayat v. Ahmed Yar PLD 1986 Lah 270; Allah Ditta and another v. Saeed Ahmad 1991 MLD 581; Ghulam Muhammad v. Ghulam Hussain 2001 YLR 2343 and Mian Muhammad Lutfi v. Mian Muhammad Talha Adil NLR 2000 Civil 422 ref.

(b) Administration of justice---

----Act of Court---Effect---Party cannot be penalized or made to suffer for any wrong order passed by the Court.

(c) Punjab Pre-emption Act (IX of 1991)---

---S. 24---Zar-e-Soem (Pre-emption money), deposit of---Extension of time---Principle---Court, in an appropriate case for valid reasons and justification shown, can relieve the party concerned from oppression or unforeseen eventuality or circumstances beyond control---Period can be extended in exceptional circumstances.

Abdul Wahid and others v. Sardar Ali and others 2000 SCMR 650 rel.

Pervez Inayat Malik for Petitioners.

Jehangir A. Jhoja for Respondent

Date of hearing: 25th June, 2003.

2003 C L C 1819

[Lahore]

Before Maulvi Anwarul Haq, J

Raja HASSAN ALI KHAN--- Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ISLAMABAD and 2 others---Respondents

Writ Petitions Nos. 1176 and 1177 of 2003, heard on 2nd June, 2003.

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 1(2), 2(k) & 7---Notification S.R.O. 83(Re)/02, dated 19-7-2002---Ejectment petition---Maintainability---Jurisdiction of Rent Controller---Issuance or notification under S.1(2) of Islamabad Rent Restriction Ordinance, 2001, during pendency of ejectment proceedings---Contention of the tenant was that the Rent Controller had no jurisdiction as the ejectment petition was filed prior to the issuance of the notification---Validity---Disputed property was situated in the area declared as urban area specified in terms of S.1(2) read with S.2(k) of Islamabad Rent Restriction Ordinance, 2001---Rent Controller who took cognizance of the matter, was validly appointed in terms of S.7 of Islamabad Rent Restriction Ordinance, 2001, therefore, institution of the application before Rent Controller, was in accord with S.7(3) of Islamabad Rent Restriction Ordinance, 2001---Ejectment petition was maintainable in circumstances.

(b) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Petitioner's conduct---Relevancy and effect---Bona fide personal need of landlord---Default in payment of monthly rent---Tenants failed to deposit rent even after orders were passed by the Courts below directing them to deposit rent in the Court ---Ejectment petition was allowed by the Rent Controller and the eviction order was maintained by Appellate Court---Validity---Such conduct of tenants disentitled them to call upon High Court to exercise discretionary jurisdiction in their favour---Constitutional petition was dismissed in circumstances.

Zaheer Bashir Ansari for Petitioner.

Hafiz-ur-Rehman for Respondents.

Date of hearing: 2nd June, 2003.

2003 C L C 1823

[Lahore]

Before Ch. Ijaz Ahmad, J

Sheikh FAZAL REHMAN & SONS LIMITED and another---Petitioners

Versus

GHEE CORPORATION OF PAKISTAN through Chairman and 2 others---Respondents

Writ Petition No. 919 of 1995, heard on 13th June, 2003.

(a) Constitution of Pakistan (1973)---

----Art. 199---Privatization Commission Ordinance (LII of 2000), Ss.28 & 31---Constitutional petition---Pending Constitutional petition, Competent Authority had issued Privatization Commission Ordinance, 2000 and Ss.28 & 31 thereof covered the matter involved in the said Constitutional petition---Contention of the petitioner was that the proceedings be converted into a petition under S.28 of the Privatization Commission Ordinance, 2000 as the Constitutional petition could be converted and question of law could be raised at any stage---Validity---Court, with a view to foster justice could take appropriate action or to adopt a procedure which was not provided for if it was not expressly prohibited by any provision of law---No express prohibition existed against the conversion of a Constitutional petition into appeal, etc., High Court had inherent power to adopt a procedure in a fit case in the interest of justice---Technicalities were not to defeat the ends of justice--­Contention of the petitioner was allowed and Constitutional petition was converted into petition under S.28 of the Privatization Commission Ordinance, 2000.

Collector of Customs v. Messrs Flying Kraft Paper Mills PLJ 1995 SC 795; Mst. Akhtar Naseem's case PLD 1982 Kar. 130; Saleh's case PLD 1982 Kar. 542; Khuda Yar's case PLD 1975 SC 678; Sher Muhammad's case PLD 1989 SC 532; Mst. Sardaran's case 1993 SCMR 363; Alam Din's case 1999 MLD 2146 and Messrs Gee Constructions Company Ltd.'s case 1999 MLD 2202 ref.

(b) Privatization Commission Ordinance (LII of 2000)---

----Ss. 28 & 31---Constitution of Pakistan (1973), Art. 199---Civil Procedure Code (V of 1908), O.VII, R.7---Subsequent events---Court was entitled to take notice of the subsequent events for the purpose of doing full and, complete justice to the parties and for giving the effective relief to the petitioner/appellant---Court was not only empowered but was duty bound, in appropriate cases, to consider the changed circumstances, where it was shown that the original relief claimed by the petitioner/appellant, had, by reason of subsequent changes in the circumstances, had become useless or inappropriate or where it was necessary to take notice of changed circumstances to shorten the litigation or a new relief may serve the purpose better or that a relief was required to be re-shaped or moulded in the light of change in facts or in law to do the complete justice between the parties, the Court was bound to depart from the general rule and mould the relief in the light of altered circumstances---Principles.

The ordinary rule is that a Court should give its decision on the facts and circumstances as they existed at the date of institution of the suit or at the date of any subsequent amendment of pleadings and should not take notice of events or decision which have happened after such date.

Ordinary decree in a suit should accord with the rights of the parties as they stood at the date 'of its institution: But where it is shown that original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to have the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. it is incumbent upon a Court of justice to take notice of subsequent events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stood at the time when the decree was made.

A discretion is vested in this behalf in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice.

The Court is entitled to take notice of the subsequent events for the purpose of doing full and complete justice to the parties and for giving effective relief to the petitioner/appellant. In appropriate cases, it is not only the power but duty of the Court to consider the changed circumstances, where it is shown that the original relief claimed by the petitioner/appellant, has, by reason of subsequent change in the circumstances, become useless or inappropriate or where it is necessary to take notice of changed circumstances to shorten the litigation or a new relief may serve the purpose better or that a relief is required to be re-shaped or moulded in the light of change in facts or in law to do the complete justice between the parties, the Court is bound to depart from the general rule arid mould the relief in the light of altered circumstances.

Similarly, if during the pendency of petition/appeal for getting admission, the petitioner/appellant himself has obtained the admission elsewhere, the Court taking into account that subsequent event, may not grant relief in his favour.

It is basic to the processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the Tribunal, it cannot blink at it or be blind to events which stultify or render inapt the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors or just circumstances. Nor can one contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the judgment pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are in legion, even as situations for applications of this equitable rule are myriad. For making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed.

Where the petitioner aggrieved, by Selection by the Public Service Commission, participated in another selection subsequently, the petitioner cannot challenge previous selection as the previous matter would be deemed to be past and closed.

The High Court is entitled to take notice on subsequent events for the purpose of giving complete and effective relief to the petitioner in Constitutional jurisdiction.

Court must take into account subsequent events and mould relief accordingly.

In view of subsequent events the well known principles of approbate and reprobate, estoppel and waiver could be applied.

Mst. Ameena Begum v. Mehr Ghulam Dastgir PLD 1978 SC 220; Lakshmi Ammal and others v. Narayanaswami Naicker and others AIR 1950 Mad. 321; Commentary under Rule 7 of Order 7 of C.P.C. by Mulla, 12th Edn.; Ashish Sharma's case 1986 SCC 1; Pasu Palti's case (1975) SCC 770; Dr. Habib Ullah's case PLD 1973 SC 144; Smt. Swamalata Biswas v. State of West Bengal and others AIR 1952 Cal. 687; Kanaya Ram v. Rajendra Kumar AIR 1985 SC 371; Muhammad Rashid's case 2001 MLD 548; WAPDA's case 2001 PLC 304; Muhammad Nazir's case 2001 CLC 767 and Ghulam Rasool's case PLD 1971 SC 376 ref.

Raja Muhammad Akram for Petitioners.

Sher Zaman Khan, Dy. A.-G, for Respondent No.1.

S.M. Nasim for Respondent No.2.

Date of hearing: 13th June, 2003.

2003 C L C 1837

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

ZULFIQAR ALI ---Petitioner

Versus

SHAMSHAD BEGUM and 10 others---Respondents

Civil Revision No.220-D of 1999, heard on 10th June, 2003.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Defendant, who was in possession of suit land having failed to pay price of the same, was declared defaulter and Settlement Authorities, after informing the defendant, resumed the land under Settlement Scheme No. VIII---Said resumed plot was placed in auction pool which was purchased by plaintiff in open auction who paid its price and which was confirmed in his name---Defendant filed appeal against resumption order without bringing on record legal heirs of the plaintiff as respondents as plaintiff had died in the meantime and Settlement Authorities set aside resumption order and allotted the plot in favour of defendant after receiving price from him without hearing the legal heirs of the plaintiff---Settlement Authorities had transferred suit plot in favour of plaintiff through open auction and he had paid its total sale price---It was necessary, in circumstances, to issue notice to plaintiff or his legal heirs and to hear them before deciding appeal of defendant against resumption order, but Settlement Authorities passed the order in their absence---Validity---Order passed by Settlement Authorities was illegal having been passed in violation of principles of natural justice--­Trial Court, in circumstances, was not justified to dismiss suit of the plaintiff against illegal order of Settlement Authorities---Appellate Court had rightly accepted appeal against judgment and decree of Trial Court---Appellate Court had decided appeal after appraisal of entire material available on record---No illegality or infirmity was found in the judgment of Appellate Court---In absence of any misreading or non­-reading of evidence and jurisdictional defect, judgment of Appellate Court could not be interfered with by High Court in its revisional jurisdiction.

Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 ref.

Mian Sarfraz-ul-Hassan for Petitioner.

Waseem Mumtaz Malik for Respondents Nos. 1 to 7.

Najamul Hassan Gill, A. A.-G. for Respondents Nos.8 and 9.

Date of hearing: 10th June, 2003.

2003 C L C 1841

[Lahore]

Before Ch. Ijaz Ahmad, J

MERAJ DIN---Petitioner

Versus

SAFDAR KHAN and 4 others---Respondents

Writ Petitions Nos.8207 and 8208 of 2003, decided on 16th June, 2003.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 6---Civil Procedure Code (V of 1908), S.151 & O. IX, Rr.6 & 7--­Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for pre-emption---Failure to file written statement---Ex parte order, setting aside of---Summonses issued by Trial Court were not received by defendants as they had gone abroad before issuance of summonses or filing suits against them---Summonses were received by father of the defendants and the counsel who appeared on behalf of the defendants, was granted three opportunities to file written statements on behalf of the defendants---Said counsel having failed to file written statement, defence of defendants was struck off and ex parte order was passed by the Trial Court against them---Application filed by defendants under S.151, C.P.C. for recalling ex parte order was dismissed by Trial Court, but same was accepted in revision---Validity---Report of process-server had revealed that defendants had left the country before issuing them summonses or filing suits against them---Service of defendants was not effected in accordance with law---Trial Court had erred in law to dismiss application for setting aside ex parte order, whereas revisional Court had passed order after applying its independent mind and on proper appreciation of evidence---Whenever defendants were absent for indefinite period, they would be said to be not found at the residence in the meantime in title of the suit---No power of attorney or written statement having been filed on behalf of the defendants by the counsel who had entered appearance without securing power of attorney from defendants, ex parte order passed by Trial Court was not proper and it was sufficient ground to set aside same---Substantial justice having been done between the parties, High Court declined to exercise its discretion in favour of the plaintiffs.

Nawab Raunaq Ali's case PLD 1973 SC 236 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---High Court had no jurisdiction to substitute its own findings for the findings of Courts below while exercising its discretionary Constitutional powers.

Massaddaq's case PLD 1973 Lah. 600 ref.

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

----Art. 2A---Administration of justice---After addition of Art.2A in the Constitution superior Courts have insisted that controversy must be decided on merits instead of technicalities.

Said Muhammad's case PLD 1989 SC 532 rel.

(d) Principal and agent---

----Agent----Agent must be duly authorized to accept the notices and authority to accept the service of notice as agent, must be in writing.

Hazari Dasi v. Daiba Charan Mandal and others 1971 DLC 663; Mst. Razia Sultana v. Chairman, Evacuee Trust Property Board, Lahore 2002 CLC 1257; Ms. Idrees Barry & Co. v. Commissioner of Income-­tax, West Pakistan PLD 1960 Lah. 852; Muhammad Idress Barry & Co., Lahore v. Commissioner of Income-tax, Punjab and N.-W.F.P. PLD 1957 Lah. 270 and Qasim Ibrahim Saleji v. Johurmul Khemka AIR, 1916 Cal. 191(2) ref.

Haji Muhammad Ashraf Butt for Petitioner.

2003 C L C 1845

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL MALIK and another---Petitioners

Versus

FIDA HUSSAIN ---Respondent

Civil Revisions Nos.428-D and 429-D of 1996, heard on 6th May, 2003.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 2(a), 6 & 13---Civil Procedure Code (V of 1908), O. VII, R.11--­Suit for pre-emption---Right of pre-emption in respect of urban immovable property---Rejection of plaint---Suit land admittedly was urban immovable property located within urban area of the town---Said land was purchased by defendant vendee respectively on 21-9-1993 and 3-11-1993 vide sale-deeds---Plaintiffs who claimed to be co-sharers in the suit properties, owners of adjacent land and sharers of amenities, filed suits on 20-1-1994 and 3-3-1994 respectively---Defendant resisted suits contending that suit land being urban, located within urban area, suits filed by plaintiffs were not competent---Defendant had also filed an application under O.VII, R.11, C.P.C. for rejection of plaints which application was accepted and plaints were concurrently rejected both by Trial Court and the Appellate Court---Validity---Plaintiffs had contended that S.2(a) of Punjab Pre-emption Act, 1991 being repugnant to Injunctions of Islam, suits filed by them in respect of suit-land Were competent and their plaints could pot have been rejected---Sales of suit land in the present case had taken place prior to crucial date i.e. 31-12-1993 on which date provision of S.2(a) of Punjab Pre-emption Act, 1991 ceased to have effect as same were declared to be repugnant to Injunctions of Islam by Shariat Appellate Bench of Supreme Court vide its judgment reported as PLD 1994 SC 1---Plaintiffs on dates when sales of suit-land had taken place, having not been vested with right of pre-emption in respect of suit-land which were situated in urban area, could not file the suits---Plaints of plaintiffs were rightly rejected concurrently by Courts below and said orders could nut be interfered with in revision by High Court.

Rana Ghulam Shabbir's case PLD 1994 SC 1; Haji Muhammad Shabbir Ahmed Khan v. Federation of Pakistan PLD 2001 SC 18 and Faqir Muhammad v. Government of Punjab PLD 1988 FSC 35 ref.

Raja Amir Akbar for Petitioners.

Raja Abdul Rehman for Respondent.

Date of hearing: 6th May, 2003.

2003 C L C 1848

[Lahore]

Before Ch. Ijaz Ahmad, J

COOPERATIVE MODEL TOWN SOCIETY (1962) LTD., MODEL TOWN, LAHORE through Secretary---Petitioner

Versus

SECRETARY, COOPERATIVE DEPARTMENT, GOVERNMENT OF THE PUNJAB, CIVIL SECRETARIAT, LAHORE and 2 others---Respondents

Whit Petition No.3775 of 2003, decided on 28th May, 2003.

(a) Cooperative Societies Act (VII of 1925)---

----Ss. 54 & 64---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appeal against decision of Senior District Cooperative Officer--Limitation---Senior District Cooperative Officer, after having arguments in petition filed by respondent under S.54, Cooperative Societies Act, 1925 reserved the order---Senior District Cooperative Officer had claimed that parties were informed on telephone by his office on 11-9-2001 that decision of petition would be announced on 13-9-2001---Petitioner-Cooperative Society which allegedly had not received any information from the Senior District Cooperative Officer its representative visited his office on 16-1-2002 to enquire whether judgment had been passed by him or not---After getting information that judgment had been passed on 13-9-2001, petitioner-Cooperative Society after receiving certified copy of-the order filed appeal before Secretary, Cooperative Department within prescribed period of two months, but same was dismissed as barred by time---Validity---Office notings of Senior District Cooperative Officer did not reveal the person who had received alleged telephonic message on 11-9-2001 as claimed by the Senior District Cooperative Office qua the announcement of impugned order passed by him on 13-9-2001---Such fact had clearly shown that impugned order was not communicated to the petitioner-Society as alleged---Even otherwise alleged communication by telephone did not fall within parameters of S.64 of Cooperative Societies Act, 1925, because word "communication" would means communicated to the petitioner through written letter and not on telephone---Petitioner-Society having filed appeal within two months from date of knowledge/alleged communication, was not time-barred---Cases must be decided on merits instead of technicalities--Order dismissing appeal of petitioner-Society passed by the Appellate Authority, was set aside by High Court and case was remanded for decision afresh on merits in accordance with law after hearing the parties.

Said Muhammad's case PLD 1989 SC 532 ref.

(b) Words and phrases---

----"Communicate"---Defined and explained.

Nawab Begum's case PLD 1974 Lah. 344 and Shanti Parsad v. Competent Authority AIR 1965 Punj. 315 ref.

Muhammad Rashid Vohra for Petitioner.

Muhammad Nazir Janjua for .Respondents.

Date of hearing: 28th May, 2003.

2003 C L C 1853

[Lahore]

Before Raja Muhammad Sabir, J

NADEEM SADIQ DOGAR---Petitioner

Versus

T.M.O. and others---Respondents

Writ Petition No.5394 of 2003, decided on 13th May, 2003.

Punjab Local Government Ordinance (XIII of 2001)---

----S. 67---Punjab Local Government Elections Rules, 2000, Rr.37, 39 & 41---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Election for Chairman, Monitoring Committee---Petitioner and respondent were main contestants for the Office of Chairman, Monitoring Committee in the election---Result declared by the Returning Officer showed that each of said contestants having got 60 votes and Returning Officer, therefore, decided to hold draw of lot---Toss fell in favour of the petitioner, but toss was repeated for second and third time in which respondent was declared successful by the Returning Officer--­Representation submitted by petitioner before the Chief Officer was dismissed and respondent was finally declared successful---Petitioner had alleged that in fact he had secured 61 votes whereas respondent got 59 votes, but in order to get favour of Chairman Group, two votes of petitioner were allegedly declared invalid and were excluded from count and that the first toss fell in his name, but in order to ensure victory of respondent coin was tossed for the second and third time in violation of the relevant rules---Opening of sealed record in presence of parties showed that one ballot-paper despite containing stamp of voter in column of the petitioner, was rejected by the Returning Officer and other was rejected by the Appellate Authority without any cogent and valid reason---While considering number of valid votes of the contesting parties, it was clear that petitioner got 61 votes as against 59 votes of the respondent---Petitioner who had secured more votes than the respondent was illegally declared as defeated candidate---Punjab Local Government Elections Rules, 2000 and Bye-Law No.7 provided that decision in case of equality: of votes would be by draw of lot---First fall of lot was in favour of petitioner and there was no provision for second and third draw of lot either in any rule or in the bye-laws---Returning Officer by drawing second and third lot, had malafidely adopted a device for success of the respondent---Petitioner having secured highest votes, stood elected as Chairman, Monitoring Committee and would be notified as such by the Competent Authority---Order passed by Returning Officer and Appellate Authority, were declared illegal, collusive and without lawful authority by High Court in exercise of its Constitutional jurisdiction.

Dr. M. Mohay-ud-Din Qazi for Petitioner.

Hafiz Abdur Rehman Ansari for Respondent No.2.

Farooq Hassan Naqvi for Respondent No. 1.

Date of hearing: 13th May, 2003.

2003 C L C 1858

[Lahore]

Before Mian Muhammad Jahangier, J

MUHAMMAD ABRAR---Petitioner

Versus

JUDGE, FAMILY COURT, GOJRA and another---Respondents

Writ Petition No.6466 of 2003, decided on 6th June, 2003.

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'---­Defendant husband who admittedly had married another woman in the United Kingdom, had contended that since he had to go abroad, he had simply performed paper marriage which was false and designed to facilitate his stay there---Performance of paper marriage in foreign country and marriage with a lady in Pakistan was an act of cheating on the part of, husband which was sufficient for the satisfaction of judicious conscience of the Court---Family Court was fully competent to dissolve marriage on basis of Khula', and had rightly done so in circumstances--­-Evidence on record had shown that it was not a case of misreading and non-reading of evidence on record and findings of fact recorded by Family Court were in accordance with law---Findings of Family Court could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Jabbar Qadir for Petitioner.

Jaffar Hussain Jafferi for Respondent.

2003 C L C 1863

[Lahore]

Before Mian Saqib Nisar, J

FAIZ AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE and others---Respondents

Writ Petition No.2032 of 2002/BWP, decided on 22nd July, 2002.

Civil Procedure Code (V of 1908)---

----O. VII, R.2, O. VIII, Rr. 1, 10 & O. IX, Rr. 6, 7, 13---Suit for recovery of amount---Ex parte decree, setting aside of---Striking off defence---Ex parte decree passed in suit was set aside by Trial Court on application of defendant and case was adjourned for filing written statement by defendant---Defendant having failed to file written statement despite obtaining several adjournments, his defence was struck off--­Validity---In spite of some slackness shown by the defendant in filing written statement, one more opportunity could have been given to him, for filing his written statement---Defendant was directed to file written statement on next date of hearing subject to payment of Rs.1,000 as costs---In case of non-payment of said costs petition would be deemed to have been dismissed.

Nadeem Iqbal Chaudhry for Petitioner.

Zulfiqar Ali for Respondents.

2003 C L C 1868

[Lahore]

Before Jawwad S. Khawaja, J

HASSEB WAQAS SUGAR MILLS ---Petitioner

Versus

SECRETARY FOOD---Respondent

Writ Petition No.7559 of 2061, decided on 29th January, 2002.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Default in payment of sugar cess---Imposition of penalty---Criteria---Authority had framed a policy setting out objective criteria on basis of which penalty could be imposed on sugar mills defaulting in payment of sugar cess---Said policy had been sent to the Government for approval---Authority contended that pending approval by Government, Sugar Mills could be dealt with in accordance with terms of the said policy--Validity---High Court directed that pending approval by Government, all Sugar Mills in Punjab would be dealt with in accordance with terms of said policy and in order to ensure transparency, in all cases where Cane Commissioner relaxed any provision of policy in exercise of his powers his decision would be communicated to all Sugar Mills and to all industry-wise associations of Sugar Mills in Pakistan.

Muhammad Ibrahim Khalil for Petitioner.

Zahid Aslam Khan, Asstt. A.-G. for Respondent.

2003 C L C 1874

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

Dr. NOOR MUHAMMAD RAJA---Petitioner

Versus

DEPUTY MANAGER, FESCO and others---Respondents

Writ Petition No. 1654 of 2003, decided on 21st July, 2003.

Constitution of Pakistan (1973)---

----Arts. 199, 25, 8 & 4---Constitutional jurisdiction of High Court--­Scope---Enforcement of fundamental rights---Supply of electricity, a vested right of citizens---Equality amongst different classes and sections of the society---All persons similarly situated must be treated alike and every body was to be treated in accordance with law---State functionaries acting otherwise; Court, would redress the grievance of an aggrieved person and provide remedies to the citizens and positively enforce their fundamental rights to enable them to lead comfortable life---Domestic consumers of electricity according to law had to be treated at par with other residential colonies in the matter of electricity charges---Action of Authority charging higher rates of electricity, being in conflict with the vested and fundamental rights of the citizens, could be struck down under judicial review by the High Court---Constitutionally guaranteed fundamental rights were positive commitment towards citizens which had to be made real and meaningful by the Courts to enforce them---If the petitioner's claim rested upon Constitutionally guaranteed fundamental rights the superior Court enjoyed two-fold jurisdiction if the petitioner was aggrieved by an act of the State functionaries invading his fundamental rights and such action had no backing of law or taken under the law which was void in terms of Art. 8 of the Constitution, Court could strike down that action and direct the State functionaries to redress the grievance of the person and also direct that such law be treated to be void.

Government of West Pakistan and another v. Begum Agha Karim Shorish Kashmiri PLD 1969 SC 14; Darshan Masih alias Rehmatey and others v. The State PLD 1990 SC 513; Mrs. Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 SC 66 and State of Punjab and others v. Mohinder Singh Randhawa and another AIR 1992 SC 473 ref.

Ch. M. Arshad Virk for Petitioner.

Misbah-ul-Islam, A.A.-G. for Respondents Nos. 1 to 4.

Mrs. Tayyiba Ramzan Ch. for Respondents Nos.5 and 6.

2003 C L C 1885

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD NAZIR and 2 others---Appellants

Versus

Mst. KHADIJA BIBI and 4 others---Respondents

Regular Second Appeal No.28 of 1996, heard on 29th January, 2003.

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

----S. 12---Suit for specific performance of agreement of sale---Plaintiffs had filed suit claiming that defendant lady through her attorney executed sale agreement with regard to suit-land in favour of plaintiffs for consideration and had also received considerable amount from the plaintiffs---Defendant denied execution of sale agreement and receipt of amount from plaintiffs---Trial Court decreed suit, but same was dismissed by Appellate Court---Validity---Alleged agreement of sale-cum-receipt had not been proved in accordance with law as said document was neither mentioned in the plaint nor appended therewith nor relied upon--­Plaintiffs, even earlier, had filed a suit for permanent injunction, but said document was never mentioned therein---Marginal witnesses of said document had not been examined by plaintiffs without any good reason---Alleged agreement of sale was unstamped, was, not registered with Sub-Registrar and was not incorporated in any register of professional licensed deed-writer---Signature attributed to attorney of defendant when compared with signature of attorney on general power of attorney, did not tally---Handwriting Expert had also deposed that signatures attributed to attorney of defendant, were not in his handwriting---No evidence was on record to prove as to in which year, month, the day, the time and venue, the alleged agreement to sell was negotiated between the parties---Receipt of amount by defendant from plaintiffs had also not been proved---Appellate Court, in circumstances, had rightly dismissed the suit filed by plaintiffs against defendant.

Sh. Khurshid Iqbal for Appellants.

Malik Amjad Pervaiz for Respondents.

Date of hearing: 29th January, 2003.

2003 C L C 1892

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD RAMZAN and another---Petitioners

Versus

MUHAMMAD ASHIQ and 9 others---Respondents

Civil Revision No. 1514 of 1999, heard on 10th February, 2003.

Specific Relief Act (I of 1877)---

---S. 12---Suit for possession through specific performance of agreement of sale---Both Courts below after proper and due evaluation of evidence had found that deceased owner of suit-land, upon receipt of earnest money, had executed agreement to sell in favour of plaintiffs and that said agreement was duly acknowledged by legal heirs of deceased---Legal heirs of deceased received further amount as earnest, money from the plaintiffs and undertook to execute necessary sale-deed in favour of plaintiffs upon award of Guardianship Certificate and decision of certain litigation before Board of Revenue---Legal heirs of deceased in breach of their undertaking sold the suit-land to the subsequent vendees---Trial Court adjudged existence and execution of agreement to sell in favour of plaintiffs, but refused to pass decree for specific performance in favour of plaintiffs on ground that suit was time-barred and that subsequent vendees were bona fide purchasers without notice of earlier agreement of sale in favour of plaintiffs---Subsequent vendees having not fixed any definite date, taking date of sale to plaintiffs as hate of refusal to perform, plaintiffs were well within their rights and time to file suit to avoid subsequent safe mutation---Appellate Court had validly found the suit to be within time---Appellate Court on due and proper analysis of evidence, validly found that subsequent vendees had knowledge of agreement in favour of plaintiffs particularly in view of their possession of suit-land---No cogent and specific evidence was led by subsequent vendees on their bona fide purchase without notice of agreement to sell in favour of plaintiffs---Question of fact had been adjudged by Appellate Court below on basis of due and proper analysis of evidence---In absence of any misreading, non-reading or any excess of authority or material irregularity, such findings could not be interfered with in revisional jurisdiction of High Court.

Mian Muhammad Aslam Arain for Petitioners.

Sardar Dilshad Ahmad for Respondents Nos. 1 to 3

Respondents Nos.4 to 10: Ex parte.

Date of hearing: 10th February, 2003.

2003 C L C 1922

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD ZAFAR and 23 others‑‑‑Petitioners

Versus

YOUSAF ALI and 9 others‑‑‑Respondents

Civil Revisions Nos.3016 and 3177‑D to 3184‑D of 1996, heard on 25th April, 2003.

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

‑‑‑‑O. XLI, R. 22‑‑‑Non‑filing of cross‑objections by respondent not having appealed from any part of decree‑‑‑Effect‑‑‑Such respondent could not attack decree or ask for variation to decree otherwise than by way of cross‑objections.

Mst. Jantan and others v. Khan Muhammad and others PLD 1954 Lah. 371; Messrs Yousuf & Co. v. Mst. Rasheeda Begum PLD 1975 Kar. 684; The Directorate of Industries and Mineral Development and others v. Messrs Masood Auto Stores PLD 1991 Lah. 174; Khairati and 4 others v. Aleemuddin and another PLD 1973 SC 295; Kanwal Nain and others v. Fateh Khan and others PLD 1983 SC 53 and Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah and 3 others 1996 SCMR 1862 rel.

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

‑‑‑‑S. 36‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Jurisdiction of Civil Court in matters arising under Colonization of Government Lands (Punjab) Act, 1912‑‑‑Scope‑‑‑Civil Court would ordinarily have jurisdiction to decide, whether or not an act having been done purportedly in exercise of powers conferred by such Act, could be validly done thereunder‑‑‑Section 36 of the Act did not divest jurisdiction of Civil Court to decide, 'what legal effect an order of Revenue Officer validly passed under the Act would have on the rights of parties‑‑‑Section 36 of the Act did not oust jurisdiction of Civil Court to examine correctness and legality of order passed by Collector.

Secretary of State v. Mask & Company AIR 1940 PC 105 rel.

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

‑‑‑‑S. 9‑‑‑Exclusion of jurisdiction of Civil Court‑‑‑Effect‑‑‑Such exclusion not to be readily inferred, but must, be explicitly expressed or clearly implied‑‑‑Where jurisdiction was excluded, even then Civil Court would have jurisdiction to examine cases, where provisions of the Act had not been complied with or statutory Tribunal had not acted in conformity with fundamental principles of judicial procedure.

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

‑‑‑‑S. 36‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Suit challenging the very authority to pass order under Colonization of Government Lands (Punjab) Act, 1912‑‑‑Section 36 of the Act would not be a bar to such suit.

Khadim Hussain and 3 others v. Ata Muhammad and 7 others PLD 1967 Lah. 915 and Khadim Hussain and 3 others v. Ata Muhammad and 7 others 1970 SCMR 127 fol.

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

‑‑‑‑Ss. 8, 42 & 54‑‑‑Colonization of Government Lands (Punjab) Act (V of 1912), Ss.10, 32, 34 & 36‑‑‑Suit for declaration and injunction‑‑‑Suit for possession‑‑‑Plaintiff was in possession of disputed Ahata since 1947‑‑‑Defendant through order, dated 16‑7‑1974 passed by Collector on basis of false report of Revenue Staff got proprietary rights in respect of Ahata at the back of plaintiff and initiated proceedings under Ss.32/34 of Colonization of Government Lands (Punjab) Act, 1912‑‑‑Plaintiff after having failed in revenue hierarchy, filed suit for declaration/injunction, over which defendant also filed suit for possession‑‑‑`trial Court consolidated both suits, but dismissed suit filed by plaintiff and decreed suit filed by defendant for possession‑‑‑Appellate Court accepted appeal filed by plaintiff and set aside decree of Trial Court observing that there was no mention of disputed Ahata in sale‑deed in favour of defendant's predecessor‑in‑interest‑‑‑Validity‑‑‑Defendant on basis of documents placed on record could not be considered as owner‑in‑possession of disputed Ahata‑‑‑Collector, before passing order dated 16‑7‑1974, had not granted opportunity of hearing to plaintiff‑‑‑Plaintiff's possession was being disturbed by ejecting him in exercise of powers under Ss.32/34 of the Act‑‑‑Provisions of S.32 of the Act neither excluded right of hearing to person likely to be affected nor any determination thereunder could be made at the back of person in possession‑‑‑Order of Collector regarding grant of proprietary rights to defendant was void‑‑?Revenue Authorities had dismissed appeal and revision filed by plaintiff without proper exercise of jurisdiction ‑‑‑Section.36 of the Act did not oust jurisdiction of Civil Court to examine correctness and legality of order passed by Collector‑‑‑Trial Court by misreading evidence on record had dismissed suit of plaintiff and granted decree for possession to defendant, which had rightly been set aside by Appellate Court‑‑‑No illegality or irregularity had been committed by Appellate Court in accepting appeal and decreeing suit for, declaration and injunction filed by plaintiff‑‑‑High Court dismissed revision petitions.

Col. Mahboob Khan v. Abdur Rashid and another 1993 MLD 1959 rel.

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

‑‑‑‑S. 32‑‑‑Right of hearing under provisions of S.32 of Colonization of Government Lands (Punjab). Act, 1912‑‑‑Scope‑‑‑Such provisions neither exclude right of hearing to person likely to he affected nor determination thereunder can be made at the back of person in possession.

Muhammad Sharif and others v. A.C. Samundri and others 1990 ALD 152(1); Madad Ali Shah v. Revenue Minister and others 1991 MLD 2394 and Fateh Muhammad v. Dilawar Khan and 3 others 1989 SCMR 1145 rel.

(g) Natural justice, principles of‑‑‑

‑‑‑‑Such principles ought to be read as part of every statute unless specifically excluded.

Muhammad Yaqub Chatha for Petitioners.

Syed Aal‑e‑Ahmad for Respondents.

Date of hearing: 25th April, 2003.

2003 C L C 1936

[Lahore]

Before M. Javed Buttar, J

OAISAR RASHID BHATTI and 3 others‑‑‑Petitioners

Versus

SECRETARY, GOVERNMENT OF THE PUNJAB, LOCAL GOVERNMENT COMMISSION, LAHORE and 3 others‑‑‑Respondents

Writ Petitions Nos.2778 and 5216 of 2003, heard on 19th May, 2003.

(a) Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑Ss. 152(1)(p)(2) & 161‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition ‑‑‑Absence of Naib‑Tehsil Nazim from three consecutive meetings of Council‑‑‑Effect‑‑‑Council through resolution declared Naib‑Nazim as disqualified on ground of such absence‑‑­Validity‑‑‑Only Chief Election Commissioner, either on his own motion or on application of a person, could pass order of removal of Naib Nazim on ground of absence after following procedure laid down in S.161 of Punjab Local Government Ordinance, 2001‑‑‑Tehsil Council on its own, could not treat Naib‑Nazim as having ceased to be member and Naib ­Nazim on said ground‑‑‑High Court declared such resolution to be ineffective against Naib‑Nazim.

(b) Punjab Local Government Ordinance (XIII of 2001)‑‑‑‑‑‑‑

-----Ss. 65(3) & 69(4)‑‑‑Conduct of business of Tehsil Council‑‑‑Council could not lawfully hold meeting, which had not been convened by Naib Tehsil Nazim‑‑‑Council could ratify only in lawfully convened meeting a business transacted and resolution passed in any previous meeting which was not lawfully convened.

(c) Punjab Local Government Ordinance (XIII of 2001)‑‑--

‑‑‑‑S. 69(5)‑‑‑Presiding over the meetings of Tehsil Council by panel of Presiding Officers in absence of Naib‑Tehsil Nazim‑‑‑Scope‑‑‑Presiding Officers could preside over only such meetings, which had been lawfully convened by Naib‑Tehsil Nazim, but not over those which were not, lawfully convened.

(d) Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑S. 69(5)‑‑‑Motion for recall of Naib‑Tehsil Nazim‑‑‑Presiding over meeting of Tehsil Council by panel of Presiding Officers in presence of Naib‑Tehsil Nazim‑‑‑Scope‑‑‑Presiding Officers could not preside over such meeting not lawfully convened by Naib‑Tehsil Nazim ‑‑‑Presiding Officers could preside over meetings of Tehsil Council, if initially m a lawfully convened meeting, even in presence of Naib‑Tehsil Nazim, a motion for his recall was moved‑‑‑Where Naib‑Tehsil Nazim deliberately declined to convene meeting, wherein such motion was proposed to be moved, then aggrieved person/member could approach Court of law for forcing Naib‑Nazim to convene meeting.

(e) Punjab Local Government Ordinance (XIII of 2001)‑‑‑--

‑‑‑‑S. 169(2)‑‑‑Framing of bye‑laws by Tehsil Council‑‑‑Scope‑‑‑Rules, regulations, and, bye‑laws made under Punjab Local Government Ordinance, 1979 have been saved and continued to the extent not inconsistent with provisions of Punjab Local Government Ordinance, 2001‑‑‑Tehsil Council can formulate bye‑laws in accordance with provisions of Ordinance, 2001‑‑‑Government may frame model bye‑laws for providing guidance to Tehsil Council.

(f) Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑S. 65(2)‑‑‑Meeting of Tehsil Council‑‑‑Statutory duty of Naib‑Tehsil Nazim to convene meeting at least once in every month.

Ch. Hameed‑ud‑Din for Petitioners.

Syed Muhammad Jalal‑ud‑Din Khalid, A.A.‑G. for Respondent No.1.

Mian Sarfraz‑ul‑Hassan for Respondent No.3

Ch. Amer Rehman for T.M.O.

Date of hearing: 19th May, 2003.

2003 C L C 1954

[Lahore]

Before Mian Muhammad Jahangier, J

ZULFIQAR AHMAD‑‑‑Petitioner

Versus

JUDGE, FAMILY COURT and 2 others‑‑‑Respondents

Writ Petition No. 11625 of 2002, heard on 5th June, 2003

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

‑‑‑‑S. 5 & Sched.‑‑‑Dissolution of marriage on ground of Khula'‑‑­Essential conditions‑‑‑Duty of Family Court‑‑‑Mere statement of wife that she was not prepared at all to live with her husband would not be sufficient to dissolve marriage on ground of Khula'‑‑‑Wife was bound to bring on record some reasons for hatred developed in her mind‑‑‑Reasons for hatred might be collected from pleadings of parties, evidence and attentive hearing of parties by Judge himself during reconciliation proceedings‑‑‑Duty of Family Court to collect such reasons in order to satisfy its judicious conscience that grounds for dissolving marriage on basis of Khula existed‑‑‑Exercise of discretion by Family Courts with closed eyes would encourage stereotype pleadings written by experts and tutored dialogue to express hatred against husband‑‑‑Wife on account of her negative conduct would not he entitled to dissolution of marriage on basis of Khula.

Dr. Akhlaq v. Kishwar Sultana PLD 1983 SC 169; Jindan v. Rahim Bakhsh 1985 CLC 2539 and Aali v. Additional District Judge‑I, Quetta and others 1986 CLC 27 rel.

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

‑‑‑‑S. 5 & Sched.‑‑‑Dissolution of Muslim Marriages Act (VIII of 1939), S.2(v), second proviso, cl. (c) & S.2(viii)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for dissolution of marriage‑‑‑Plea of wife was that husband's attitude was cruel towards her, that he was physically weak, which fact was not told to her earlier as such fraud had been committed with her; that she was entitled to divorce on basis of Khula' for having developed hatred against him being a vagabond‑‑‑Family Court decreed suit on ground of Khula' subject to payment of Rs.10,000 as Zar‑e‑Khula'‑‑‑Validity‑‑‑Wife had alleged in plaint cruel attitude of husband without mentioning any of his specific habit or any incident in which he had given her physical or mental torture‑‑‑Husband's offer made in written statement and also in evidence to get him medically examined had not been responded‑-‑Physical weakness would not reflect on impotency, thus ground of impotency as given in S.2(v) of Dissolution of Muslim Marriages Act, 1939 was not available to wife‑‑‑Plea of physical weakness of husband taken by wife was either due to defective drafting of plaint by her counsel or same might reflect on her Character as how she could claim that before marriage, her parents or somebody else should ensure that husband was physically strong‑‑‑Such plea taken by wife was against the tradition of culture and society‑‑‑Family Court had observed that wife was not willing to live with husband at any cost, thus, peaceful living was not possible‑‑‑High Court disposed of Constitutional petition while maintaining such observations of Family Court with directions that wife instead of Rs.10,000 would pay Rs.40,000 as Zar‑e‑Khula to the husband.

(c) Dissolution of Muslim Marriages Act (VIII of 1939)‑‑‑

‑‑‑‑S. 2(v)‑‑‑"Impotency" and "physical weakness" of husband‑‑­Distinction‑‑‑Impotency means that husband is not in a position to perform sexual intercourse‑‑‑Physical weakness does not reflect on potency‑‑‑Physical weakness is not provided anywhere in Dissolution of Muslim Marriages Act, 1939 as ground for dissolution or marriage.

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

‑‑‑‑S. 5 & Sched.‑‑‑Family matters given in Sched. of West Pakistan Family Courts Act, 1964‑‑‑Inconvenience and discomfort being faced by both parties in prevailing circumstances, particularly by ladies during their appearance before Family Courts‑‑‑Disposal of such matters by imam of mosque of concerned Union Council, who performed Nikah of parties suggested.

M.D. Tahir for Petitioner.

2003 C L C 78

[Peshawar]

Before Mrs. Khalida Rachid, J

Mst. SAID KHOBAN and others‑‑‑Petitioners

Versus

MOMIN KHAN and others‑‑‑Respondents

Civil Revision No.443 of 1995, decided on 16th May, 2002.

Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 79‑‑‑Evidence Act (I of 1872), S.68‑‑‑General Clauses Act (X of 1897), S.6‑‑‑Document, proof of‑‑‑Procedure‑‑‑Failure to produce two attesting witnesses‑‑‑Effect‑‑‑Execution of disputed sale‑deed and filing of suit, prior to promulgation of Qanun‑e‑Shahadat, 1984‑‑‑Piea raised by the petitioner was that the respondent failed to produced two attesting witnesses thus the disputed sale‑deed was not proved in terms of Art.79 of Qanun‑e‑Shahadat, 1984‑‑‑Validity‑‑‑To prove execution of document/deed under S.68 of Evidence Act, 1872, examination of one attesting witness was required‑‑‑Repeal of any law under S.6 of General Clauses Act, 1897 does not affect anything not in force or existing at the time when the repeal had taken place‑‑‑‑New law of evidence i.e. Qanun­e‑Shahadat, 1984, came into existence in the year 1984, disputed sale-­deed was scribed in the year 1963 and the suit was filed in the year 1983‑‑‑Disputed sale‑deed having been scribed and the suit filed prior to the promulgation of Qanun‑e‑Shahadat, 1984, execution of the deed was to be proved in the light of S.68 of Evidence Act, 1872, and not under Art. 79 of Qanun‑e‑Shahadat, 1984‑‑‑Both the Courts below had rightly relied upon the disputed sale‑deed‑‑‑High Court declined to interfere with the judgments and decrees passed by both the Courts below in circumstances.

Civil Petition No. 557/L of 1999 ref.

Ghulam Naqashband Khan for Petitioner

Gulsadbar for Respondents.

Date of hearing: 9th May, 2002.

2003 C L C 116

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

GUL ROZ and another‑‑‑Petitioners

Versus

SARGAND and others‑‑ ‑Respondents

Civil Revision No.649 of 2000, decided on 9th September, 2002.

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

‑‑‑‑S. 42‑‑‑Declaration of title‑‑‑Ownership of suit‑land ‑‑‑Proof‑‑­Concurrent findings of fact by Courts below‑‑‑Plaintiffs asserted that they were the owners of suit‑land and the defendant had refused to hand over the possession to them‑‑‑Both the Courts below had concurrently dismissed the suit as well as appeal‑‑‑Validity‑‑‑Mere assertion of the plaintiffs that they were owners of suit‑land without a positive attempt on their part to substantiate the same was of no consequence‑‑‑Evidence produced by the plaintiffs fell short of the required standard and had been rightly discarded by the Courts below‑‑‑Plaintiffs were unable to show that there was any misreading or non‑reading of evidence‑‑‑Both the Courts below after due appraisal of the evidence on record, for the cogent reasons, decided all the issues and dismissed the suit and appeal‑‑­High Court declined to interfere with the concurrent findings of fact by the Courts below‑‑‑Revision was dismissed in circumstances.

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

‑‑‑S. 115(1)‑‑‑Provisions of S.115(1), C.P.C.‑‑‑Applicability‑‑‑Pre­conditions‑‑‑To attract the provisions of any of the! clauses of S.115(1), C.P.C., the petitioner is legally obliged to make out a case for exercise of its jurisdiction by High Court‑ ‑‑Petitioner's burden is to prove that either appellate forum was not possessed of the jurisdiction to decide the matter or that it has declined to exercise jurisdiction vested in it or that it has acted in the exercise of its jurisdiction illegally or with material irregularity‑‑‑In absence of either of the three conditions, the revisional forum can ill‑afford to reverse the findings of the appellate forum‑‑­Provisions of S.115, C.P.C. apply to cases involving illegal assumption, non‑exercise or irregular exercise of jurisdiction‑‑‑Such jurisdiction cannot be invoked against conclusions of law or fact, which do not in any way affect the jurisdiction of the Court no matter how erroneous, wrong or perverse the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction‑‑‑Erroneous conclusion of law or fact is liable to be corrected in appeal but revision is not competent on such ground, unless in arriving at such conclusion an error of law has been committed.

Muhammad Nasir Mahmood and others v. Mst. Rashida Bibi 2000 SCMR 1013 and Abdur Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346 ref.

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

‑‑‑‑O. VI, R.17‑‑‑Pleadings, amendment of‑‑‑Principles‑‑‑Amendment which would displace the plaintiff's suit or would introduce new and wholly inconsistent case cannot be allowed despite the fact that powers of High Court to allow amendment at any stage are fairly wide‑‑‑Where amendment sought to be made was likely to change the whole complexion of the case, such amendment was rightly disallowed by the Courts below.

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

‑‑‑‑O. XXIII, R.1(2)(a)‑‑‑Expression "formal defect"‑‑‑Connotation‑‑­Expression "formal defect" has not been defined anywhere in Civil Procedure Code, 1908, but its plain meaning appears to be that the defect should be only in plaint or form of the suit‑‑‑‑Such kind of defect does not affect the merits of the case‑‑‑If defect is a material and substantial one and affects the merits of the case or goes to the root of the claim, such defect would not be a formal defect ,within the scope of O.XXIII, R.1(2)(a), C.P.C.

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

‑‑‑‑O. XXIII, R.1 & S.115‑‑‑Withdrawal of suit‑‑‑‑ Revision petition‑‑­Maintainability‑‑‑If order allowing withdrawal of a suit is based oh grounds which are not contemplated under O.XXIII, R.1, C.P.C. that would be an irregular exercise of jurisdiction vested in the Court‑‑‑Where the ground is of a kind which is within the purview of O.XXIII, R.1, C.P.C. then whether in the circumstances it is sufficient or not the revisional Court cannot go into the matter.

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

‑‑‑‑O. XXIII, R.1(2)(b) & S.115‑‑‑Words "other sufficient grounds" in O.XXIII, R.1(2)(b), C.P.C.‑‑‑Connotation‑‑‑Withdrawal of suit with permission to file fresh suit ‑‑‑Revisional jurisdiction of High Court, exercise of‑‑‑Suit filed by the plaintiff was dismissed and Appellate Court dismissed the appeal as well‑‑‑During pendency of the revision petition, the petitioner applied for withdrawal of the suit with permission to file fresh one‑‑‑Validity‑‑‑Words "other sufficient grounds" used in O.XXIII, R. 1(2)(b), C.P.C. meant ground other than the different‑.from "formal" defect and the matter was within the discretion of the Court‑‑‑In order to induce the High Court to interfere in revision with matters mostly within the discretion of Trial Court it was necessary that it should be perfectly satisfied that the order was not supported by any consideration of justice or by any provision of law‑‑‑Power given by Civil Procedure Code, 1908, to the Court to give permission to withdraw was to be governed by certain considerations and if it appeared that those considerations were not present in a certain case, it must be held that the order was passed without jurisdiction in restricted manner‑‑‑Where no formal defect was pointed out warranting withdrawal of the suit with permission to bring fresh suit, High Court declined to give permission to withdraw the suit in circumstances.

Petitioner No. 1 in person.

Fazalur Rehman for Respondents.

Date of hearing: 1st July, 2002.

2003 C L C 235

[Peshawar]

Before Ijaz‑ul‑Hassan, J

Malik NASRULLAH‑‑‑Petitioner

Versus

Mst. MUMLIKAT BEGUM‑‑‑Respondent

Civil Revisions Nos.49 and 50 of 2002; decided on 4th November. 2002.

(a) North West Frontier Province Pre‑emption Act (X of 1987)‑‑‑--

‑-----S. 24(1) [as amended by North‑West Frontier Province Pre‑emption (Amendment) Act (X of 1992))‑‑‑Pre‑emption suit‑‑‑Direction by Trial court to pre‑emptor to deposit 1/3rd of pre‑emption money within thirty days otherwise his suit would stand dismissed‑‑‑Trial Court dismissed suit for non‑compliance of such order, but in appeal filed by pre‑emptor. Appellate Court allowed extension in time for deposit‑‑‑Validity‑‑‑No statutory limit under amended S.24 of the Act for making such deposit, but matter had been left to discretion of Court to fix time for the same and its failure must result in dismissal of suit‑‑‑Once a time was fixed, then pre‑emptor would be bound to comply with the time so fixed and neither he would be allowed to apply for further extension nor Court would be competent to allow the same‑‑‑Appellate Court had no power to extend time‑‑‑Impugned order had materially prejudiced interest of defendant‑‑‑High Court accepted revision petition, set aside impugned judgment and restored that of Trial Court, resultantly suit stood dismissed.

Wahid Bakhsh v. Abdul Qayum and another 1997 MLD 2945; Mst. Mah Jehan v. Abdul Maroof 2000 MLD 814; Muhammad Iqbal v. Jehanzeb Khan 1999 MLD 2475; Jehanzeb Khan v. Muhammad Iqbal 2000 SCMR 365 and Muhammad Sultan v. Muhammad Ali Raja. 2002 3CMR 1108 ref.

Khalid Mehmood v. Abdur Rashid and another 2000 YLR 1249 distinguished.

(b) Pre‑emption‑‑‑

‑‑‑ Right of‑‑‑Nature‑‑‑Duty of pre‑emptor, while exercising such right, rated.

Undoubtedly, the pre‑emption right being a feeble right, pree­mptor seeking to exercise such right is bound to perform and fulfil its requirements meticulously and any failure in that behalf would deprive him of success in getting a pre‑emption decree.

Wahid Bakhsh v. Abdul Qayum and another 1997 MLD 2945 ref.

(c) Act of the Court‑‑‑

‑‑Expression "the act. of the Court"‑‑‑Connotation‑‑‑One of the first and highest duties of all Courts is to take care that act of the Court does not use injury to any of the suiters‑‑‑Such expression does not mean act of primary Court or of any intermediate Court of Appeal, but act of the Court as a whole lowest Court, which entertains jurisdiction over the matter up to the highest Court, which finally disposes of the case.

Syed Sardar Hussain for Petitioner.

Mazullah Barkandi for Respondent.

Date of hearing: 27th September, 2002.

2003 C L C 319

[Peshawar]

Before Malik Hamid Saeed and Ejaz Afzal Khan, JJ

Miss GUL ROOKH SARFARAZ and 8 others‑‑‑Petitioners

Versus

GOVERNMENT OF N.‑W.F.P. through Chief Secretary and 45 others‑‑‑Respondents

A.W.P. Nos.1270, 1287; 1324 and 1417 of 2000, decided on 13th December, 2000.

(a) Educational institution‑‑‑

‑‑‑‑ Admission to medical college‑‑‑Candidates of Federally Administered Tribal Areas‑‑‑Admission Policy to Medical College‑‑‑Scope‑‑‑Under the Federal Rules of Business as well as North‑West Frontier Province Rules of Business, the SAFRON and Home Department of North‑West Frontier Province both are concerned with nomination and admission of Federally Administered Tribal Areas candidates on reserved seats respectively‑‑‑ Total 111 seats had been reserved for Federally Administered Tribal Areas candidates throughout the country out of which 85 seats had been allocated in the various medical colleges of North‑West Frontier Province whereas the remaining 26 seats had been reserved in other medical colleges of the three Provinces‑‑‑Prerogatives had been given to the Home and Tribal Affairs Department to make and finalize admissions on the 87 reserved seats in the medical colleges of North‑West Frontier Province through Joint Admission Committee and to recommend the list of those seats to SAFRON which are available in the medical colleges of the other Provinces for disposal at their end ‑‑‑SAFRON as well as the North‑West Frontier Province Home and Tribal Affairs Department both agreed to change the criteria for admission on Federally Administered Tribal Area reserved seats in future and the Joint Admission Committee was nominated to go through the whole process of admission‑‑‑Medical Colleges, in the North‑West Frontier Province, are under the control of the Provincial Government‑‑‑Being controlled and run by its Health Department, the Provincial Government is thus competent to make admission policies for admission in the colleges.

Miss Uzma Sabir Qureshi and others v. Government of Balochistan through Secretary, Health Department, Quetta and others 1999 YLR 1326 and Gul Khan v. Government of Balochistan through Secretary Education and 4 others PLD 1989 Quetta 8 ref.

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

‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Educational Institution‑‑‑Vires of Admission Policy with regard to admissions in medical colleges for Federally Administered Tribal Area reserved seats‑-‑Scope‑‑‑Petitioners were candidates for admission in Medical College on the Federally Administered Tribal Areas reserved seats and were aggrieved of the admission policy whereby it had been decided that 5096 Federally Administered Tribal Area seats would be allocated to those Federally Administered Tribal Area candidates who had studied and passed their F.Sc. or equivalent examination from educational institution. located in the said Area‑‑‑Validity‑‑‑Main purpose behind the reservation of the seats w1ts to extend protection to those Tribal Area students who were at a disadvantage as compared to the students of other areas keeping in view the difference between the educational facilities available in the other educational institutions outside the tribal belt‑‑‑Students who received education in schools/colleges located in tribal territory could not compete with those students who received their education in developed areas of the country‑‑‑If a child received his education in institutions of developed areas like Peshawar due to the reasons that his parents were residing at Peshawar or they had migrated their child to Peshawar or any other educationally developed city of the Province for the purpose of receiving education, in that case when the question of admission in the professional colleges would come between the two tribal children, having received their education quite in different atmosphere, then seemingly the child who received his secondary and intermediate level education from the school/college located in the Tribal Agencies would not be able to get admission in a professional college‑‑‑Such child required some protection in this regard and if it was not provided, the result would be that the child educated from institutions/schools outside the tribal agency would be higher in merit than the child educated from the institutions/schools located in the tribal agency‑‑‑Public interest was greater than private, as the development of remote and backward areas as a whole was to be kept in view and not the interest of a child who not only received his education outside the tribal agency but after becoming a professional, would also not want to serve in the tribal territory‑‑‑On the other hand it was expected that a child who from the start received education in the tribal area schools and colleges and did not leave his abode in the tribal area would certainly serve the same area even after getting degree from a professional institution‑‑‑Such criteria adopted by the professional colleges was reasonable and not in conflict with the provisions of the Constitution‑‑‑As such the policy having been based on positive approach to the overall interest of Federally Administered Tribal Area students/candidates was neither illegal not violative of the fundamental right as enshrined in the Constitution‑‑­Petition was dismissed in circumstances.

(1990) 3 SCC 130 and 1995 SCMR 711 ref.

Mian Fasihul Mulk for Petitioner.

Imtiaz Ali, Addl. A.‑G. for Respondents Nos. 1 to .3.

Salahuddin Khan, Dy. A.‑G. II for Respondent No.4.

Abdul, Latif Afridi for Respondents Nos.20, 22, 23 and 24.

Wasimuddin Khattak for Respondent No.5.

Saeed Baig for the Remaining Respondents.

Date of hearing: 12th December, 2000.

2003 C L C 679

[Peshawar]

Before Mrs. Khalida Rachid and Ijaz‑ul‑Hassan, JJ

HAZRAT ZAMAN and another‑‑‑Petitioners

Versus

SENIOR MEMBER, BOARD. OF REVENUE N.‑W.F.P., PESHAWAR and 4 others‑‑‑Respondents

Writ Petition No. 1222 of 2001, decided on 16th October, 2002.

(a) North‑West Frontier Province Tenancy Act (XXV of 1950)‑‑‑--

‑‑‑‑S. 56‑‑‑Board of Revenue ‑‑‑Revisional jurisdiction‑‑‑Scope--- Revisional power once exercised by Commissioner would not be available to Board of Revenue under the Act.

(b) North‑West Frontier Province Tenancy Act (XXV of 1950)‑‑‑--

‑‑‑‑Ss. 49. & 56‑‑‑Constitution of Pakistan (1973), Art.1.99‑‑­Constitutional petition‑‑‑Suit for recovery of produce‑‑‑Defendants denied their possession over the suit‑land‑‑‑Decree passed by Revenue Officer was upheld by Collector, but was set aside by Commissioner remanding the case to Revenue Officer with a direction to depute a Commission to visit spot and verify physical possession of the defendants over the suit­ land‑‑‑Board of Revenue in further revision petition filed by plaintiff set aside remand order‑‑‑Validity‑‑‑Impugned order of the Board of Revenue was without jurisdiction as revisional power once exercised by Commissioner was not available to the Board of Revenue under the Act‑‑­Remand order passed for verification of physical possession of defendants over suit‑land was quite lawful as their plea of not being in possession of suit‑land could not be properly determined without deputing a Commission‑‑‑Nothing on record was available to show that defendants had remained in possession of suit‑land as tenants of .plaintiff‑‑­Mere assertion of plaintiff regarding‑ recovery of produce without a positive attempt on her part to substantiate the same would be of no consequence‑‑‑High Court accepted Constitutional petition and declared the impugned order and decree passed by Collector and Revenue Officer as without lawful authority and of no legal effect.

(c) North‑West Frontier Province Tenancy Act (XXV of 1950)‑‑‑

‑‑‑‑S. 49‑‑‑Suit for recovery of produce‑‑‑Proof‑‑‑Mere assertion of plaintiff regarding recovery of produce, without a positive attempt to substantiate the same, would be of no consequence.

Mazullah Khan Barkandi for Petitioner.

Haji Muhammad Zahir Shah for Respondent No.5.

Date of hearing: 8th October, 2002.

2003 C L C 702

[Peshawar]

Before Malik Hamid Saeed and Ijaz‑ul‑Hassan, JJ

AQAL ZAMAN‑‑‑Petitioner

Versus

Mst. AZAD BIBI and 2 others‑‑‑Respondents

Writ Petition No.953 of 2001, decided on 17th December, 2002.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition ‑‑‑Suit for recovery of dower‑‑‑Plea of defendant was that dower was paid at the time of marriage by his father to plaintiff's father according to Riwaj of the area‑‑‑Decree passed by Family Court was upheld by Appellate Court‑‑‑Validity‑‑‑Nothing on record was available to show that dower had been paid at the time of marriage and defendant had discharged his liability‑‑‑No irregularity or jurisdictional defect calling for interference of High Court was pointed out by the defendant‑‑‑Courts below had rightly appreciated evidence and material on record‑‑‑High Court dismissed Constitutional petition in circumstances.

Abdur Rahim Bajwa v. Sultan and 9 others PLD 1981 SC 522 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Such jurisdiction was discretionary in, nature and could be declined in appropriate cases‑‑‑While exercising the jurisdiction, High Court had to see, if the Tribunal or Court had acted without jurisdiction or in violation of any relevant statute or law‑‑‑.High Court in such exercise could not embark upon reappraisal of evidence which was the job of Appellate Court.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199 ‑‑‑ Findings of fact recorded by Family Court‑‑‑Not challengeable before High Court in exercise of its Constitutional jurisdiction.

Muhammad Yaseen v. Mst. Razia Begum 1986 CLC 1996 and Muhammad Aslam v. Kausar Parveen and another 1987 CLC 256 rel.

(d) Islamic Law‑‑‑

‑‑‑‑ Marriage, purpose of‑‑‑Duties of husband‑‑‑Spouses transgressing limits of Islam‑‑‑Islam suggests separation with kindness.

The marriage under Islamic law is a civil contract and not a sacrament. It is ordained by Almighty Allah in Holy Qur'an and it is for comfort, love and compassion. It is the bounden duty of a husband to keep his Wife with love and affection, respect and provide her maintenance during subsistence of marriage. Islam has laid down parameters for spouses to live within those bounds and if parties transgress those parameters, they should relieve each other i.e. they may break matrimonial tie with kindness.

(e) Islamic Law‑‑‑---

‑‑‑Dower‑‑‑Dower is a debt and husband is under obligation to pay the same on demand.

Amanullah Khan Khattak for Petitioner.

Jan Lal Khattak for Respondent

Date of hearing: 17th December, 2002.

2003 C L C 713

[Peshawar]

Before Malik Hamid Saeed and Ijaz‑ul‑Hassan, JJ

MUMTAZ BAIG and 5 others‑‑‑Petitioners

Versus

SARFRAZ BAIG‑‑‑Respondent

Writ Petition No.511 of 2002, decided on 19th December, 2002.

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

‑‑‑‑O. VI, R. 17‑‑‑Amendment of pleadings‑‑‑Delay alone in applying for amendment could not be considered a good ground for refusing amendment, if same was necessary for arriving at correct decision and determination of real controversy between parties.

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

‑‑‑‑O. VI, R. 17‑‑‑Amendment of pleadings‑‑‑Amendment can be allowed at any stage, if same would neither cause prejudice to other side nor change cause. of action of suit, but was necessary for accurate decision of case.

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

‑‑‑‑O. VI, R. 17‑‑‑Amendment of pleadings‑‑‑Amendment can be allowed to seek consequential relief arising from cause of action originally incorporated in the plaint.

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

‑‑‑‑O. VI, R. 17‑‑‑Amendment of plaint‑‑Amendment can be allowed to add additional relief available to, plaintiff even before higher Courts.

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

‑‑‑‑O. VI, R. 17‑‑‑Amendment of plaint‑‑‑Amendment can be allowed to convert a suit from one relief to another.

Amendment can be allowed for converting a suit from one relief to another i.e. if suit had been filed for declaration, same can be converted into for possession etc.

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

‑‑‑‑O. VI, R. 17‑‑‑Amendment of plaint ‑‑‑Where mala fides on part of plaintiff was explicitly visible in pleadings, then amendment could not be allowed.

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

‑‑‑O. VI, R. 17‑‑‑Amendment of plaint‑‑‑Amendment can be allowed to raise a plea of Tact derogatory to plea already taken up in plaint, when such fact amounts to admission in favour of other side.

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

‑‑‑‑O. VI, R. 17‑‑‑Amendment of plaint‑‑‑Amendment can be refused to substitute cause of action or introduce a new cause of action not available at time of filing of suit.

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

‑‑‑‑O. VI, R. 17‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Amendment of plaint‑‑‑Suit for declaration and injunction‑‑‑Plaintiff after partial‑ recording of his evidence sought amendment in plaint to‑‑correct boundaries of disputed property and share of defendant‑-‑Trial Court disallowed such amendment, but Revisional Court allowed the same‑‑­Validity‑‑‑Proposed amendment had neither changed cause of action or subject‑matter in lis nor prejudiced cause of defendant, rather same had been allowed to do complete justice between the parties and avoid further litigation High Court dismissed Constitutional petition in circumstances.

Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322; Muhammad Samiullah Khan v. Additional District Judge, Sargodha PLD 2002 Lah. 56; Muhammad Khan and 6 others v. Mst. Ghulam sand 12 others 1991 SCMR 970; PLD 1985 SC 345; Ghularm Nabi v. Sardar Nazir Ahmad 1985 SCMR 824; Ali Hussain v. Late Ali Ahmad Khan 1983 SCMR. 1178 and Ahmad Din v. Muhammad Shafi PLD 1971 SC 762 ref.

Muhammad Saeed Khan for Petitioner.

Date of hearing: 19th December, 2002.

2003 C L C 729

[Peshawar]

Before Malik Hamid Saeed and Ijaz‑ul‑Hassan, JJ

Mst. NAJMA YASMIN and other‑‑‑Petitioners

Versus

JAVED AKHTAR and 2 others‑‑‑Respondents

Writ Petition No.284 of 2002, heard on 19th December, 2002.

(a) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑S. 25‑‑‑Constitution of Pakistan 1973), Art. 199 ‑‑‑ Constitutional petition‑‑‑Custody of minor son‑‑‑Father sought custody of minor son after 12 years, during which period minor remained in custody of mother without payment of maintenance by father and was getting education in 6th Class in an English Medium School‑‑‑Father's application was accepted by Family Court and Appellate Court without giving an opportunity to minor to make his intelligent preference in Court‑‑­Validity‑‑‑Mother had .not contracted second marriage‑‑Minor was studying in the school, wherein his mother was serving as Teacher in BPS‑17‑‑‑Father was serving as Engineer, having a sister in his house and intended to admit minor in another school in a different city‑‑‑Father would remain out of house for considerable time, and his sister could not give such love and affection to minor, which his mother could‑‑‑Present educational institution was more suitable to the minor, who was not only having company of his mother both in school and at home, but father could meet minor at place P and such meeting would not be possible to him regularly at place A‑‑‑Minor in unequivocal terms with a firm decision refused to go with his father‑‑‑Welfare of minor in such circumstances would lie in custody of mother instead of father‑‑‑Father had not shown that mother had ever remained negligent in case of minor‑­‑Conduct of father neglecting minor for 12 years was sufficient to disentitle him to custody of minor‑‑‑Father's right to get custody of minor after 7 years was not absolute‑‑‑Findings of Courts below were not only based on misreading and non‑reading of evidence, but were in deviation of the provisions of Guardians and Wards Act, 1890‑‑‑High Court accepted Constitutional petition and set aside impugned judgments with observations that minor would remain , in custody of mother and father could meet minor once in a week.

Mst. Firdous Iqbal v. Shifaat Ali 2000 SCMR 838 fol.

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

‑‑‑‑S. 25‑‑‑Custody of minor son‑‑‑Right of father to get custody of minor son after 7 years age‑‑‑Not an absolute right‑‑‑Paramount consideration should be welfare of minor, while determining question of his custody.

Mst. Firdous Iqbal v. Shifaat Ali 2000 SCMR 838 fol.

Abdul Samad Khan for Petitioner No. 1.

Aamir Javed for Respondents.

Date of hearing: 19th December, 2002.

2003 C L C 753

[Peshawar]

Before Nasirul Mulk and Ijaz‑ul‑Hassan, JJ

NOOR MUHAMMAD KHAN and 2 others‑‑‑Petitioners

Versus

PRINCIPAL, AYUB MEDICAL COLELGE, ABBOTTABAD, and 4 others‑‑‑Respondents

Writ Petitions Nos. 772, 854 and 730 of 2002, decided on 31st December, 2002.

(a) Prospectus of North‑West Frontier Province Medical/Dental Colleges [2001‑2002]‑‑‑--

‑‑‑‑Cl. 9‑‑‑Pakistan Medical and Dental Council Rules, 1962, R.18‑‑­Pakistan Medical and Dental Council Ordinance (XXXII of 1962), S.33‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Failure of petitioners to pass 1st Professional (Part I) Annual Examination‑‑‑Refusal of respondents to allow petitioners to attend class of 1st Professional (Part II) and appear in examination ‑‑‑Validity‑‑­Prospectus framed in the light of the Rules was approved by the Provincial Government‑‑‑First Professional Examination had been bifurcated into two parts‑‑‑Petitioners after having failed in any of its parts were not entitled for promotion to next higher class in view of cl.9 in Prospectus‑‑‑Clause 9 had been rightly incorporated in Prospectus in order to raise standard of education‑‑‑Petitioners at the time of admission had agreed to conform to all provisions of the statute of College or statutes and rules framed thereafter by appropriate Authorities‑‑­Petitioners, thus, could not be allowed to turn around and assail incorporation of cl.9 in Prospectus and term the same as un­ Constitutional and whimsical‑‑‑Action of respondent was in accordance with law-‑‑High Court dismissed Constitutional petition as non ­maintainable.

Miss Dur‑e‑Nayab Shama v. Principal, Khyber Medical College and others Writ Petition No.750 of 2001 distinguished.

PLD 1971 Lah. 972; PLD 1992 SC 221; 1984 CLC 378; PLD 1974 SC 151; PLD 1990 SC 1092 and 1996 SCMR 616 ref.

(b) Practice and procedure‑‑‑

‑‑‑‑ Judgment of equal Bench in High Court on same point‑‑‑Binding on second Bench‑‑‑In case of taking contrary view, request for constitution of a larger Bench should be made.

(c) Mala fides‑‑‑

‑‑‑‑ Meaning of‑‑‑Onus to prove, lies on person alleging mala fides‑‑p­resumption of regularity attached to official acts is rebuttable ‑‑‑Mala fides must be pleaded with particularity‑‑‑Once one kind of mala fides is alleged, then proof of another kind cannot be adduced‑‑‑Person alleging mala fides cannot be, allowed a roving enquiry into files‑of Government for purpose of fishing out some kind of a case‑‑‑Principles.

Mala fides is one of the most difficult things to prove and the onus is entirely upon person alleging main fides to establish it, because there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides ‑‑‑Mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any inquiry be launched upon merely on the basis of vague and indefinite allegations, nor should proof of any other kind of mala fides be allowed to be adduced nor should any inquiry be launched upon merely on the basis of vague and indefinite allegations nor should the person alleging mala fides be allowed a roving inquiry into the files of Government for the purpose of fishing out some kind of a case, "Mala fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person against whom the action is taken or to benefit oneself. A person alleging that an action has been taken mala fide is required to show that the person responsible for taking the action has been motivated by anyone of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people.

PLD 1974 SC 151 fol.

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

‑‑‑‑Art. 199‑‑‑Relief under jurisdiction of High Court‑‑‑Discretionary‑‑­Such relief could be claimed by a person having bona fide claim and coming to Court with clean hands for enforcement of a legal right obtained in a lawful manner‑‑‑Discretion should be exercised in accordance with son and on sound judicial principles.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope‑‑­Administrative Executive Officer acting under a law‑‑‑If such Officer went out of law in exercising jurisdiction not vesting in him by law, the High Court would control such action by an appropriate order.

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

‑‑‑Art. 199‑‑‑Constitutional' petition would be competent against action found in violation of law laid down by superior Courts.

Syed Asif Ali Shah for Petitioner (in Writ Petition No.772 of 2002).

Muhammad Jamil Khan for Petitioners (in Writ Petitions Nos.730 and 854 of 2002).

Wasimuddin Khattak for Respondent No.2.

Jehanzeb Rahim, A.‑G. for Respondent No. 3.

Date of hearing: 7th November, 2002.

2003 C L C 817

[Peshawar]

Before Ijaz-ul-Hassan, J

KHAWAS KHAN and others---Petitioners

Versus

GOVERNMENT OF N.-W.F.P. through Secretary for Local Bodies and Rural Development Department, Peshawar and others---Respondents

Writ Petition No. 151 of 2001, decided on 5th July, 2001.

North-West Frontier Province Local Government Elections Ordinance (VI of 2000)---

----S. 13---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Delimitation of Union Council---Petitioners had prayed that Notification whereby delimitation of Union Council 'G' was changed and its component villages were attached to Union Council 'NT' being illegal, unjust, without jurisdiction and without lawful authority, be set aside and Status of old Union Council as it existed prior to issuance of the said notification be restored---Authorities in their comments had admitted that inhabitants of the locality had shown their confidence in initial delimitation process that the Patwar Circle in old Union Council which had population of 9765 could not be constituted as separate Union Council---Validity---Grievance of the petitioners was genuine as impugned notification to the extent of Union Council 'G' had prejudiced their interests---High Court allowed Constitutional petition and sent back case to Delimitation Officer with direction to resolve controversy afresh in accordance with law on the point by providing an opportunity of hearing to the parties.

Aurangzeb Mughal for Petitioners.

Muhammad Ayub Khan, Dy.A.-G. for Respondents.

Dated hearing: 5th July, 2001.

2003 C L C 837

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

MUHAMMAD JALAT KHAN---Petitioner

Versus

FAISAL HAYAT KHAN and 4 others---Respondents

Writ Petition No.84 of 2001, decided on 16th April, 2002.

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

----S. 161---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner who had already impugned order of Additional Commissioner by filing appeal under S.161 of West Pakistan Land Revenue Act, 1967, had sought to challenge the same order by a Constitutional petition---Petitioner could not advance any justification for bypassing highest forum in Revenue hierarchy which was seized of the matter and had not passed any final order so far, particularly when resort to Constitutional jurisdiction of High Court could be taken even after the decision of his appeal by Member, Board of Revenue---High Court under Constitutional jurisdiction, would not step in where an adequate remedy me to aggrieved person was available by way of appeal and a full-fledged machinery for redressal of grievances was provided under West Pakistan Land Revenue Act, 1967.

Dost Muhammad Khan for Petitioner.

Shujaullah Khan Gandapur and Shaukat Hayat Khan Khakwani for Respondent.

Date of hearing: 16th April, 2002.

2003 C L C 857

[Peshawar]

Before Talaat Qayyum Qureshi, J

Syed SARDAR SHAH and 2 others---Petitioners

Versus

Qazi MASOOD ALAM and 5 others---Respondents

Civil Revision No.45 of 1996, decided on 21st February, 2003.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), Ss.42 & 172---Suit for declaration---Mutation entered on basis of registered sale-­deed was cancelled by Revenue Officer, which order was upheld up to Board bf Revenue---Plaintiffs claiming ownership in land on basis of sale-deed, filed suit for declaration regarding their rights---Defendant's plea was that the suit was barred by S.172 of West Pakistan Land Revenue Act, 1967---Validity---Jurisdiction of Civil Court under S.172 of West Pakistan Land Revenue Act, 1967 had not been fully ousted, but same had been ousted only to the extent of correction of entries made by Revenue Officer in performance of his duty without touching rights of persons recorded in land record or record of rights--­Ownership of property in dispute had been claimed on basis of registered sale-deed and not on basis of mutation---Cancellation of mutation would not alter position as sale-deed was intact---Such plea had no force at all.

Rastamal Khan and others v. Nabi Sarwar Khan and others 1996 SCMR 78; Sardar and 5 others v. Rashid Ahmad and 12 others 1994 SCMR 1454 and Mst. Gul Pari alias Gulbaro v. Zarin Khan and others PLD 1994 Pesh. 249 rel.

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

----S. 172---Specific Relief Act (I of 1877), S.42---Exclusion of jurisdiction of Civil Court---Scope---Functions assigned to Revenue Courts and methodology adopted for discharge of such functions are beyond jurisdiction of Civil Court---Function of Revenue Court is to prepare Revenue Record in light of evidence with regard to one's title or interest---Finality is attached to orders passed by Civil Court, which ultimately determines civil rights.

(c) Land Reforms Act (II of 1977)---

----S. 6--Sale of land left with owner after surrendering surplus land--­Validity---Landowner could rightly sell any portion 'of property, which had been left with or retained by him after surrendering excess area--­Such sale would not be hit by S.6 of the Act.

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

----S. 115---Revision---Plea neither raised in written statement nor in memo of appeal before Courts below---Such plea could not be allowed to be taken up, for the first, time before Revisional Court.

(e) Practice and procedure---

---- Raising self-contradictory pleas---Effect---Party could not be allowed to blow hot and cold in same breath.

(f) Punjab Court of Wards Act (II of 1903)---

----Ss. 6, 4, 8 & 9 [as made applicable to North-West Frontier Province Court of Wards Regulation (V of 1904)]---Notification issued in exercise of powers conferred by S.6 of the Act---Property of major shareholders was placed under superintendence of Court of Wards as their property was joint with that of minors---Major shareholder sold his own share out of joint land without permission of Court of Wards---Validity---Order giving property of deceased under, superintendence of Court of Wards to the extent of minors was valid as they were incapable of managing affairs with regard to their properties---Order giving property of major share­holders not under such infirmity or incapacity, in the superintendence of Court of Wards was not proper---Major co-sharer could not be stopped from alienating/transferring his/her share---Sale by major shareholder to the extent of his share would be legal and he would not be required to obtain any permission from Court of Wards for alienating his share.

(g) Pardahnashin lady---

---- Sale by---Proof---Such lady had not only executed sale-deed before Sub-Registrar, but had not challenged same till her death, which took place four years thereafter---Husband of the lady was present at time of execution of sale-deed and was one of marginal witnesses---Lady through publication in newspaper had warned public in general that any deed allegedly executed by her would not be acceptable to her unless same had been verified by her counsel or attorney---Counsel of the lady as witness had supported sale on payment of consideration---Lady had independent and disinterested advice not only of her husband, but also of her counsel---Dispute between parties started not with regard to genuineness of sale-deed, but over an order of Revenue Officer, whereby mutation entered on basis of sale-deed was cancelled---Sale-deed was still subsisting, which had not been challenged in her lifetime-Held, evidence on record showed that she had complete knowledge and full understanding about the contents of sale-deed.

Amirzada Khan and others v. Itbar Khan and others 2001 SCMR 609 fol.

(h) Transfer of Property Act (IV of 1882)---

----Ss. 54 & 55(4)(b)---Sale---Non-payment or short payment of sale consideration would not render the sale void---Unpaid portion of sale price would be a charge on property and could be recovered through process of law.

Sarfaraz Ahmad and others v. Mst. Sakina Bibi and others PLD 1985 Jour. 121 rel.

(i) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Mutation---Does not create any title.

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

----S. 115---Revision---Concurrent findings of fact---No misreading or non-reading of evidence or any material irregularity or any jurisdictional error or defect warranting interference in impugned judgment and decree was found---High Court dismissed revision petition.

Col. (R.) Abdul Qadoos Khan for Petitioner.

Fida Muhammad Khan and Muhammad Wajid Khan for Respondents.

Date of hearing: 17th February, 2003.

2003 C L C 878

[Peshawar]

Before Malik Hamid Saeed and Ijaz-ul-Hassan, JJ

MUHAMMAD ANWAR ---Petitioner

Versus

TAHIRA JABEEN and 3 others---Respondents

Writ Petition No.940 of 2002, decided on 12th December, 2002.

(a) Constitutes of Pakistan (1973)--

----Art. 199---Constitutional jurisdiction of High Court---Nature, completely discretionary.---Writ proceedings not a substitute for an appeal---Reappraisal of evidence ---Job-of Appellate Court and not that of High Court under Art. 199 of the Constitution---Principles.

Jurisdiction under Article 199 of the Constitution is completely discretionary in nature and may be declined in appropriate case. While exercising Constitutional jurisdiction, High Court had to see, if the Tribunal or Court has acted without jurisdiction or in violation of any relevant statute or law. High Court in such cases cannot embark upon a reappraisal of evidence and proceed as if it was hearing an appeal from -a subordinate Court. It is the job of Appellate Court to appraise evidence.

In writ proceedings, High Court cannot make a reappraisal of evidence led in suit and come to a different conclusion on question of fact, because such is actually the function of an Appellate Court and High Court cannot take upon itself such a function nor can writ proceedings be regarded a substitute for an appeal.

Mst. Mehmooda Begum v Chief Settlement Commissioner PLD 1962 Lah. 911; Muhammad Hussain Munir v. Sikandar PLD 1974 SC 139 and Zulfiqar Khan Awan v. Secretary of Punjab, Lahore and 8 others 1973 SCMR 530 rel.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199--Constitutional petition---Suit for recovery of dower (gold ornaments)--­Suit decreed by Family Court and upheld by Appellate Court ---Validity--­Appellate Court had appraised evidence in accordance with law---No irregularity or jurisdictional defect had been pointed out in impugned Judgment---Husband was reluctant to discharge his liability by way of returning fourteen Tolas gold ornaments---Such conduct of husband was not appreciable---High Court refused to accept prayer of husband and dismissed Constitutional petition.

(c) Islamic Law---

---Marriage---Purpose----- Duty of husband---Parties transgressing parameters laid down in Islam, should relieve each other with kindness--Principles.

Marriage under Islamic Law is a civil contract and not a sacrament. It is ordained by God in Holy Qur'an and it is for comfort, love and compassion. It is the bounden duty of husband to keep his wife with love and affection, respect and provide her maintenance during subsistence of marriage. Islam has laid down parameters for spouses to live within those bounds and if parties transgress those parameters they should relieve each other i.e. they may break matrimonial tie with kindness.

Adus Sattar Khan for Petitioner.

Muhammadullah Khan for Respondents Nos. 1 and 2.

Date of hearing: 12th December 2002.

2003 C L C 909

[Peshawar]

Before Talaat Qayyum Qureshi, J

Mst. BIBI JAN and another---Petitioners

Versus

MIR ZAMAN and 19 others---Respondents

Civil Revision.No.40 of 1996, decided on 21st February, 2003.

(a) Co-sharer---

----Sale by, co-owner ---Validity---Co-owners in possession of specific area can alienate same subject to final adjustment at time of actual partition.

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9; Zardad Khan v. Mst. Safia Begum 1998 CLC 2006; Syed Jamal Shah v. Abdul Qadir Shah and others PLD 1955 Pesh. 26; Muhammad Shaft and others v. Mirza and others PLD 1959 (W.P.) Lah. 398; Saad Ullah v. Ibrahim AIR 1925 Lah. 518; Harnam Singh v. Jagat Singh AIR 1929 Lah. 168 and Sukhdew v. Parsi AIR 1940 Lah. 573 ref.

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

----S. 12(2)---Application under S.12(2), C.P.C.---Framing of issues--­Court not bound in each and every case to frame issues, record evidence of parties and fully adopt procedure prescribed for decision in a suit--­Such matter has been left to the satisfaction of Court, which has to regulate its proceedings---Court while keeping in view the nature of allegations in application may in its discretion adopt any mode for disposal of suit.

Nazir Ahmad v. Muhammad Sharif and others 2001 SCMR 46 and Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi 2002 SCMR 1761 ref.

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

-----Ss. 12(2) & 115---Decree, setting aside of---Dismissal of application under S.12(2), C.P.C. without framing of issues---Validity---Allegations levelled in application were of the nature, which did not require inquiry---Court below had not committed any illegality by not framing issues and inviting evidence of parties---No illegality or material irregularity or any jurisdictional error or defect warranting interference in impugned order, was found---High Court dismissed revision petition.

Mushtaq Ali Tahirkheli for Petitioners.

Malik Fazal-e-Hussain for Respondents.

Date of hearing: 18th February, 2003.

2003 C L C 951

[Peshawar]

Before Shahzad Akbar Khan and Fazlur Rehman Khan, JJ

Syed UMER AYAZ SHAH---Petitioner

Versus

Syed QAD ANAD SHAH and others---Respondents

Writ Petition No. 18 of 2002, decided on 5th March, 2003.

Civil Procedure Code (V of 1908)---

----O. XX, R.18---Limitation Act (IX of 1908), S.4---Constitution of Pakistan (1973) Art.199---Constitutional petition---Decree in suit for partition of property---Last date for deposit of decretal amount to be paid by defendants as share of plaintiffs was 3-8-1999---Defendants made application on 1-9-1999 seeking permission to deposit amount---Trial Court dismissed application, which order was upheld by Appellate Court---Validity---Trial Court was closed from 1-8-1999 till 31-8-1999 for summer vacation---Defendants under S.4 of Limitation Act; 1908 was entitled to get permission on 1-9-1999 to deposit amount, when Court re­opened for business---Impugned orders were wrong and illegal---High Court accepted Constitutional petition, set aside impugned orders and allowed one week's time to defendants to deposit required amount in Court as per application dated 1-9-1999.

2000 SCMR 254 rel.

Khuda Bakhsh Baloch for Appellant.

Allah Nawaz Khan Baloch for Respondent.

Date of hearing: 24th January, 2003.

2003 C L C 1118

[Peshawar]

Before Shahzad Akbar Khan, J

GHULAM AKBER and others---Petitioners

Versus

MUQARAB KHAN and others---Respondents

Civil Revision No.7 of 1996, decided on 18th February, 2003.

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

----S. 42---Specific Relief Act (I of 1877), Ss.12 & 55-Suit for declaration and permanent injunction qua ownership of land---Mutation. attestation of---Mutation having not been attested could not transfer any right---Unattested mutation had no validity in the eyes of law---Burden of proving the transaction embodied in the mutation was on the person acquiring title through the mutation.

PLD 1990 SC 1049 and 1991 SCMR 829 ref.

Abdul Sattar Khan for Petitioners.

Walayat Khan for Respondents.

Date of hearing: 18th February, 2003.

2003 C L C 1121

[Peshawar]

Before Ijaz-ul-Hassan, J

BAKHT ZAMIN SHAH---Appellant

Versus

FAIZ MUHAMMAD KHAN---Respondent

Second Appeal from Order No. 15 of 2000, decided on 27th April, 2003.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(3)(a)(ii)---Bona fide need of landlord---Essentials for determination---Landlord was primarily responsible for establishing his claim through cogent and reliable evidence---Need of the landlord has to be reasonable and bona fide and not actuated by bad faith and ulterior motive---Good faith meant doing a thing honestly and not motivated by oblique motive---Fundamental importance was to be attached to the statement of, the landlord himself in determining whether a particular premises was required by him for his personal use----Provision of S.13(4), West Pakistan Urban Rent Restriction Ordinance, 1959 was an adequate safeguard against abuse of provisions of S.13(3)(a)(ii) of the Ordinance by the landlord---Where the statement of the landlord was confidence-inspiring and no material was on the record to detract from, the veracity, such statement was to be 'given full weight and not to be treated as statement of an interested person---Findings of Trial Court against the tenant on the issues were supported by evidence on record .and no misreading or non-reading of evidence had been pointed out--­Question of bona fide requirement was purely a question of fact and where two Courts had concurrently found that the premises was required by the landlord bona fide for personal use, High Court declined interference in second appeal.

1992 SCMR 437 fol.

Mst. Saira Bai v. Syed Anisur Rehman 1989 SCMR 1366; National Travels v. Abdul Qayyum and another 1988 SCMR 261 and Ghulam Muhammad Khan v. Muhammad Khalid 2000 CLC 764 distinguished.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Bona fide personal need of landlord ---Ejectment of tenant--­Contention of the tenant was that he had spent substantial amount over repair and renovation of the premises with the consent and permission of the landlord and in case of eviction he was entitled to have the cost of improvements in the premises---Validity---Contention of the tenant was repelled on the ground that he had failed to bring evidence on record to establish that the premises was repaired or renovated with the consent and permission of the landlord.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Bona fide personal need of landlord and need for reconstruction of the premises---Plea of personal requirement and reconstruction were not mutually destructive and both could be pleaded contemporaneously---Landlord's claim for reconstructing his premises was not necessarily inconsistent with his claim of requirement of despised premises for his personal use.

PLD 1976 Lah. 275 ref.

H. Muhammad Zahir Shah for Appellant.

Saeedullah for Respondent.

Date of hearing: 27th April, 2001.

2003 C L C 1127

[Peshawar]

Before Shahzad Akbar Khan, J

GUL MUHAMMAD ---Petitioner

Versus

JAVED AHMAD and others---Respondents

Civil Revision No.301 of 1996, decided on 3rd March, 2003.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption, right of---Requisite Talbs are sine qua non for enforcing pre-emption rights and the failure of plaintiff in making either of the Talbs would entail the consequences of extinguishments of his right as pre-emptor.

For the purpose of enforcing the right of pre-emption under the N.-W.F.P. Pre-emption Act, 1987 as well as under the Islamic Law the requisite 'Talbaat' i.e. 'Talb-i-Muwathibat' and 'Talb-i-Ishhad' are considered as sine qua non and the failure of plaintiff in making either of the 'Talbs' would entail the consequences of extinguishments of the right of the plaintiff-pre-emptor.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13.--Making of Talbs by the pre-emptor ---Essentials---Making of Talbs being an essential requirement of law had to be proved explicitly through positive legal evidence and could not be inferred by interpreting the circumstances indirectly---Record of the present case, indicated that neither the plaintiff in his statement before the Trial Court nor his witnesses had spoken a single word about the making of "Talb-I-­Muwathibat"---Examination of the statement of the plaintiff indicated that after gaining knowledge of the sale he immediately sent the notice through postal process to the vendor---Record showed that one notice of "Talb-i-Ishhad" was sent to the vendor on 29-9-1992 through his counsel and another notice in the form of reply was sent again. through counsel on 3-11-1992---Need of sending the second notice was felt when the plaintiff was informed that the impugned sale was made on 30-9-1992 and not on 28-9-1992---Considering the first notice to. be premature the second notice was sent not to the vendor but to his counsel---Neither in the first notice the facturn of making of "Talb-i-Muathibat was mentioned nor in the second notice there was any indication that the said Talb was made---No attesting witness was recorded either to the first notice or to the second notice which undermined the legal worth of the notice of Talb-i-Ishhad---Plaintiff, in circumstances, failed in establishing the making of essential Talb of Muwathibat.

Azim Dad Khan for Petitioner

Nasir Mahfooz Khan for Respondent

Date of hearing: 3rd March, 2003.

2003 C L C 1130

[Peshawar]

Before Malik Hamid Saeed and Shah Jehan Khan, JJ

Mst. SHAUKAT ARA ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, PESHAWAR and 3 others---Respondents

Writ Petition No.899 of 1993, decided on 25th March, 2003.

(a) North-West Frontier Province, Pre-emption Act (X of 1987)-----

----Preamble---Object behind the promulgation of the Act was to bring the pre-emption laws in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 2(d)---"Sale"---Connotation---"Sale" means permanent transfer of the ownership of an immovable property in exchange for valuable consideration and includes transfer of immovable property by way of Hiba-bil-Iwaz or Hiba-bil-Shart-al-Iwaz.

(c) North-West Frontier Province Pre-emption Act (X of 1987)--

----S. 13---Pre-emption under Islamic law--Pre-emptor, of the time of the purchase, must have ownership in the mansion, on account of which he claims the right of pre-emption.

Ballie's Digest quoted.

(d) North-West Frontier Province Pre-emption Act (X of 1987)---

----S.13---Constitution of Pakistan (1973), Art.199---Constitutional petition ---Pre-emption suit by a person having contiguous property in the shape of "Balakhana Jaat" with the property of another person consisting of shops and "Balakhana"; both having no full proprietary rights over the respective- properties and in occupation of the same as lessees--­Maintainability---Nature of the property in question was such that the same was commercial property and could be resumed on the expiry of the lease period or even prior to the expiry of the lease period if any default was committed by the lessee---Leasehold rights in a property would not give freehold right to a person to exercise his right of pre­emption unless ownership was shown with respect to the said property--­Property; in the present case, was admittedly in the ownership of the Government and had been only leased out to the lessees for a fixed period on payment of annual rent, the essential ingredients as required under the law for exercise of the right of pre-emption was missing and no suit could be brought by the pre-emptor in that regard.

Ballie's Digest; AIR 1921 Pat. 164; AIR 1941 Bom. 262; AIR 1955 All. 698; AIR 1968 SC 450; Syed Saeed-ud-Din v. Haji Yunas Mia PLD 1960 Dacca 416; Sikandar v. Sultan Muhammad PLD 1974 SC 11 and PLD 1990 Kar. 387 ref.

PLD 1991 FSC 80 distinguished.

Abdul Samad Khan for Petitioner.

M. Sardar Khan for Respondents.

Date of hearing: 27th February, 2003.

2003 C L C 1144

[Peshawar]

Before Malik Hamid Saeed and Ijaz-ul-Hassan, JJ

Mst. NASIM AKHTAR and 2 others---Petitioners

Versus

FAZAL RABI and 21 others---Respondents

Writ Petition No. 1274 of 2002, decided on 17th December, 2002.

(a) Constitution of Pakistan (1973)---

----Art, 199---Constitutional jurisdiction of High Court ---Scope--­Discretionary relief under Constitutional jurisdiction can only be claimed by a person having a bona fide claim and coming to the Court with clean hands for enforcement of a legal right obtained in a lawful manner--­Jurisdiction possessed by the High Court in such matters, is discretionary which must, like all other judicial discretions, be exercised in accordant with reason and on sound judicial principles.

(b) Partition suit---

----Suit was decreed on the basis of the report of Local Commissioner appointed by the Court---Petitioners assailed the judgment and decree of the Court on a variety of grounds and contended, inter alia, that the matter had been dealt with in a cursory and mechanical manner and without application of judicious mind which had materially prejudiced the rights of the petitioners; that the Local Commissioner had not made the partition. of suit property in accordance with law; that one of the petitioners had been denied her entitlement although she was the owner of greater share in suit property as per the Goshwara placed on record; that the Commissioner had recorded no evidence on the spot and the entire proceedings were conducted at the back of the petitioners; that the Commissioner had taken the thumb-impressions and signatures on a white paper and the alleged statement recorded by him as a. compromise was not made with the consent of the petitioners and they had given no such statement to the Commissioner and that the Commissioner had not divided the share of each owner on the spot and had not given the front portion to each owner and the entire front of the suit property had been given to one person's legal heirs--Validity---Petitioners had filed objection petition and evidence was recorded by the Trial Court regarding the report of the Commission---Report was accepted and appeal was filed against the same which was converted into revision and dismissed- Petitioners having accepted the report of the Commission through their joint statement and raising no objection regarding its authenticity, could not be allowed to a somersault and agitate that the report of the Commission was prepared in their absence without recording evidence and that their signatures had been obtained on a blank paper which was subsequently written in accordance with the wishes of the respondents---No illegality or irregularity had been pointed out and petitioners had failed to demonstrate the existence of circumstances justifying the interference of the High Court under Art.199 of the Constitution.

Haji Zahir Shah for Petitioner.

Nemo for Respondents. .

Date of hearing: 17th December, 2002.

2003 C L C 1147

[Peshawar]

Before Talaat Qayyum Qureshi, J

BAGHI GUL and others---Petitioners

Versus

ALI WAZ KHAN and others---Respondents

Civil Revision No.295 of 2002, decided on 24th March, 2003.

Civil Procedure Code (V of 19088)---

---O. XXXII, R. 3---Appointment of guardian for minor defendants by the Court---More persons, including three minors, . were added as defendants in the suit after amending the plaint---Said added defendants including the minors did not file any written statement but filed only Special Power-of-Attorney---Court failed to take pains to see that the interest of the .minors was properly safeguarded and protected by appointing guardian ad litem---Effect---Held, it was mandatory under O.XXXII, R.3, C.P.C. that guardian ad litem of the minors should have been appointed---If minor defendants were not represented properly by the guardian ad litem, a decree obtained against such minors without guardian ad litem would be nullity in the eye of law---High Court, set aside the judgment and decree by the Appellate Court and remitted the case back to it to decide the same afresh strictly in accordance with law after appointing, guardian. ad litem for the minors accordingly.

Mashal Khan v. Fazal Karim and another PLD 1963 (W.P.) Pesh. 93 and Mst. Rooh Afza v. Sher Aman Khan and others PLD 1993 Pesh.49 fol.

Aziz Akhtar Chughtai for Petitioner.

Muhammad Ajmal Khan for Respondents.

Date of hearing: 24th March, 2003.

2003 C L C 1151

[Peshawar]

Before Dost Muhammad Khan, J

JEHAN BANG---Petitioner

Versus

ATHAR TAQWEEM and others---Respondents

Civil Revision No.368 of 1999, decided on 17th April, 2003.

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

----S. 48, O.XXVI, R.1, O.XX, R.5 & O.XLI, R.31---Oaths Act (X of 1873), S.8---Suit for possession---Appointment of Local Commissioner and dismissal of execution petition on the ground that the same was time­ barred and had become non-executable because of the subsequent agreement between the parties---Local Commissioner appointed for the purpose 'had dealt with the entire process off handedly and entirely in illegal manner---Statements of witnesses were recorded without cross-examination by the other side---Proceedings of oath had not be!-n. conducted in the laid down manner and the requirements had not be properly satisfied---Mode of taking oath by the judgment-debtor had n been reproduced to highlight as to how and in what manner he took the­ oath ---Validity---Executing Court was supposed to have recorded evidence for and against itself and should not have delegated such judicial function/obligation to a Commission---Provision of O.XXVI R.1, C.P.C. regarding Commission was a qualified provision and laid down certain conditions which were not existing, in the present case at the time of passing such order---Judgments/orders, in the present. Case were based on such proceedings which were entirely illegal and unwarranted in law besides the Courts had passed the impugned orders in a manner not recognized by O.XX, R.5 & O.XLI, R.31, C.P.C. and had failed to comply with the statutory requirements and on that score the impugned orders were nullity in the eyes of law---Impugned judgment ­and orders were set aside and the, case was remanded to the executing Court with direction to, administer oath, if the parties so agreed to the major legal heirs of the deceased judgment-debtor in the prescribed manner, and if the mode and manner in which the oath was to be taken was disputed then the evidence was to be recorded both oral an:; documentary, where after a proper, speaking and elaborate judgment tie given strictly in accord with O.XX, R.5, C.P.C. accepting the order to be passed on the basis of compromise.

Muhammad Alain for Petitioner

Muhammad Aman Khan for Respondent.

Date of hearing: 17th April, 2003.

2003 C L C 1153

[Peshawar]

Before Shah Jehan Khan and Ijaz-ul-Hassan, JJ

ABDUL KABIR KHAN---Petitioner

Versus

RAHAM ZEB KHAN and 4 others---Respondents

Writ Petition No.357 of 2003, decided on 4th April, 2003.

Civil Procedure Code (V of 1908)---

----O. III, R. 4---Oaths Act (X of 1873), S.8---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court ---Scope--­Suit for recovery of money was decreed by the revisional Court on the basis of Special Oath offered by the attorney---Contention of the petitioner was that the Special Power of Attorney did not empower the attorney to have made the offer of Special Oath and to have decided the main case on the basis of Special Oath through the revisional Court; that the matter should have been decided on merits; that the conditions for Special Oath by themselves were not understandable to reason and reflected mala fides and that a false claim could not be proved through Special Oath and the revisional Court had no jurisdiction to have passed the impugned decree on the basis of oath---Validity---Offer for decision of the matter on oath had been made by attorney of the petitioner which was binding on the petitioner and he could not wriggle out of the same--­Whether the attorney was competent to make such offer or not, was a question of fact which could not be resolved through Constitutional petition---High Court, in exercise of its powers under Art.199 of the Constitution, would not, ordinarily, embark upon an exercise to determine intricate, contested and complicated questions of fact--­Resolution of such-like controverted issues was ordinarily left to the proper forums, prescribed by any given law because in indulging in such an exercise would have the effect of pre-empting and enforcing upon the jurisdiction lawfully vesting in the competent officers and Courts.

Ahmad Khan and others v. Jewan PLD 2002 SC 655 and Inayat Ali v. Muhammad Yaqoob PLD 1999 Lah. 328 ref.

Mian Iqbal Hussain for Petitioner

Nemo for Respondent.

Date of hearing: 4th April, 2003.

2003 C L C 1168

[Peshawar]

Before Abdul Rauf Khan Lughmani, J

MUHAMMAD IRSHAD---Petitioner

Versus

MIR ZAMAN and others---Respondents

Civil Revision No.74 of 2003, decided on 2nd April, 2003.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 13 & 31---Pre-emption suit ---Talb-i-Muwathibat--- Limitation-- ­Object of mentioning date and time in the plaint was to reckon limitation and the plaintiff to build his case regarding Talb-i-Muwathibat on the lines set up in the plaint---Plaintiff could not be permitted to deviate from the plaint which was the foundation of a civil suit---Contradictions between the plaint and the evidence regarding Talb-i-Muawthibat was fatal to the suit.

Taj-ul-Mulk v. Mst. Zaitoon Bibi PLD 1994 SC 356 distinguished.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 13 & 2(d)---Making of Talb-i-Muwathibat--- Conditions ---Talb-i­-Muwathibat had to be made the moment the plaintiff came to know about the sale and the "sale" as defined under S.2(d) of the Act had no reference to attestation of mutation or registration deed or any deed.

Taj-ul-Mulk v. Mst. Zaitoon Bibi PLD 1994 SC 356 distinguished.

(c) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 31---Provision of S.31 of the Act deals with limitation for filing of a suit i.e. in case of attestation of mutation, registered deed or otherwise.

Taj-ul-Mulk v. Mst. Zaitoon Bibi PLD 1994 SC 356 distinguished.

Fazal Gul for Petitioner.

2003 C L C 1170

[Peshawar]

Before Abdul Rauf Lughmani, J

MUHAMMAD ARIF --- Petitioner

Versus

MUHAMMAD SHAHZADA---Respondent

Civil Revision No. 118 of 1998, decided 3rd April, 2003.

North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 5---Suit for pre-emption ---Sale consideration of the land in question---Burden of proof---Market value, determination of---Sale consideration of the land entered in the mutation was Rs.10,000 but the vendee contested the suit by filing written statement pleading to have purchased the suit-land for a consideration of Rs.83,000---Trial Court, on assessment of evidence decreed the suit in favour of plaintiff on payment of Rs.10,000 against the vendee ---Appellate Court enhanced the market value of the suit-land to Rs.83,000---Validity---Pre-emptor had to shoulder the responsibility of proving the payment of consideration of sale of the property---Market value was to be determined on the factors i.e. location, fertility etc. and vendor was to cross-examine the Patwari Circle about the location of land in the relevant mutation ---Vendee, in the present case, had appeared as witness and disclosed that he had paid Rs.18,000 to the vendor at the time of transaction and Rs.65,000 after the attestation of mutation through cheque in presence of a witness, who deposed that Rs.5,000 were paid after encashing the cheque---Leaving aside the apparent contradictions, the vendee had best way of proving by production of Bank record which he did not choose to do---When the best possible evidence was available and that too in the shape of documentary evidence maintained by Bank, the oral evidence which was discrepant and infirm could not be relied upon---Judgment and decree of the Appellate Court was set aside and that of the Trial Court was restored in circumstances.

Khan Bahadur Khan for Petitioner.

Khalid-ur-Rehman Qureshi for Respondent.

Date of hearing: 3rd April, 2003.

2003 C L C 1176

[Peshawar]

Before Talaat Qayyum Qureshi, J

TAJ MUHAMMAD KHAN and others---Petitioners

Versus

BAKHT SHERY and others---Respondents

Civil Revision No.201 of 2001, decided on 19th March, 2003.

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

----O. XVII, R.5 & S.115---Date of hearing---Application for setting aside ex parte decree---Record showed 'that the case was fixed for 12-1-2000 on which date the Presiding Officer was on leave, thus the case was adjourned on the note of the Reader for 28-1-2000 on which date the Trial Court dismissed the application for setting aside ex parte proceedings which had been filed on 17-7-1999 on which date the ex parte proceedings had been initiated---Date of adjournment noted by the Reader and not by the Court itself, could not be called a "date of hearing" and proper course for the Trial Court, in circumstances, was to adjourn the date and then proceed further---Dismissal of application for setting aside the ex parte proceedings on 28-1-2000 was, therefore, not in accordance with law as the Courts below had failed to appreciate the law applicable to the case.

Nowsheri Khan v. Said Ahmad Shah 1983 SCMR 1092 ref.

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

----Ss. 96 & 115---Dismissal of appeal as time-barred ---Validity--­Appellate Court, in the present case, had not appreciated the proper law because the impugned order had been passed on 20-7-2000, whereby application for restoration of the earlier application dated 17-7-1999 and for setting aside the ex parte decree dated 19-2-2000 was dismissed; appeal was filed on 8-9-2000 against the order dated 20-7-2000, which was quite in time---Appellate Court had erred in dismissing the appeal being barred by time---High Court set aside the judgment of the Appellate Court in revision.

Syed Sardar Hussain for Petitioner.

Said Tahar Khan for Respondent.

Date of hearing: 19th March, 2003.

2003 C L C 1189

[Peshawar]

Before Dost Muhammad Khan, J

GOVERNMENT OF N.-W. F. P. ---Petitioner

Versus

Haji ARSALA KHAN and others---Respondents

Civil Revision No.392 of 2000 and Civil Miscellaneous No.181 of 2003, decided on 12th March, 2003.

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

----S 151---Inherent powers of High Court under S.151, C.P.C.--­Scope---Powers of High Court under S.151, C.P.C. are undefined and S.151 can be pressed into service for securing the ends of justice where there is no express provision to meet any eventuality, however, in presence of express prohibition contained in any other provision of the C.P.C. such powers cannot be exercised.

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

---S. 152---Modification of judgment---Scope---Provision of S.152, C.P.C. confines itself to exercising of power to correct only the clerical or arithmetical mistakes in such judgment, decree or order which have w occurred due to accidental slip or omission---Provision of S.152, C.P.C. cannot be stretched nor its scope can be widened to an extent thereby defeating the manifest intent of the Legislature---Prayer for the amendment in the judgment was to the effect that the time given by the High Court for taking certain steps by the party be extended further for one month---Such prayer was of the nature which in substance was beyond the permissible parameters envisaged by S.152, C.P.C.

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

----S. 151---Object and scope of S.151, C.P.C.

The provision of section 151, C.P.C. has been enacted by the Legislature conferring authority on the Court to meet any unforeseen eventuality and to do justice in a case where injustice or unbearable hardship would be caused if the remedy sought is not provided when there is no express provision available in the Code to remedy the wrong. The sense of the law on the point, therefore, is that the Court may adopt any procedure and may pass order to secure the ends of justice which procedure or step to be taken is neither prohibited expressly nor impliedly by the different provisions of the Code. However, such prohibition on the principle of law cannot be presumed or inferred unless it can be comprehended by bare reading of any provision of law to that effect.

The object of the entire scheme of the Civil Procedure Code is not only to regulate the procedure of the Courts for trying any lis but the basic purpose is to streamline, channelize and ensure the doing of justice by the Court of law in a laid down manner, therefore, no procedural impediment shall thwart the doing of justice in a given case if the facts and circumstances so require.

The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy---Any system which by giving effect to the form and not the substance defeats substantive rights and is defective to that extent.

Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 3 fol.

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

----S. 151, O. XX, R.5, O. XLI, Rr. 30, 31, Ss.12, 114 & O.XLVII--­Modification of judgment---Scope and extent---Once a Court/Judge signs and pronounces the judgment in open Court then it/he ceases to exercise jurisdiction in the same matter as he becomes functus officio---Firm and unequivocal insistence of law particularly O.XX. R.5 & O.XLI, Rr.30 & 31. C.P.C. is with the object that while drawing a judgment the Judge must apply his judicial mind with a reasonable depth so that the points in controversy are fairly determined with reasons therefor and the parties while leaving the Court carry an impression that justice has been done--­Any alternation and amendment thereafter in the judgment is, therefore, not permissible in law in a routine manner because such practice if allowed would bring the system of justice into disarray---Exceptions however, have been allowed by the law itself under the provisions of Ss.114, 12 & O.XLVII, C.P.C. but that jurisdiction can only be exercised when the essential prerequisites contained therein are available in a given case. [p. 11921 E

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

-----S. 151, 152, 114 & O. XLVII---Application under S.151, C.P.C. seeking extension of time given by the High Court for taking certain steps by a party---Validity---Relief sought, in the present case, was of a nature not covered by the provision of S.151, C.P.C. nor for exercising powers under S.114 & O.XLVII, C.P.C. nor the essential prerequisite existed---Judgment in question, therefore, could not be modified to the extent as prayed.

Abdul Aziz Kundi for Applicant/Respondent No. 1/Plaintiff.

Miss Mussarrat Hilali, A.A.-G, for the Government of N.-W. F.P./Petitioners (in the main Civil Revision).

Nazirullah Qazi for P.S.O./Respondent No.5.

Respondent No.6 in person.

2003 C L C 1193

[Peshawar]

Before Malik Hamid Saeed, J

DILAWAR, KHAN and another---Petitioners

Versus

ABU-UL-KALAM and others---Respondents

Civil Revision No.410 of 2000, decided 27th March, 2003.

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

----O. IX, R.6---Power of Court in the matter of passing ex parte decree without recording evidence was discretionary ---Defendants, in the present case, though were present on the previous date, but could not make themselves available before the Court on the date when the case was fixed only for filing the list of witnesses---Trial Court on the said date decreed the suit of the plaintiff ex parte on account of absence of the defendants---Validity---Incumbent on the Trial Court to have recorded reasons whether it should decree the claim against the defendant after recording evidence or without recording evidence---No such decision being available on the record, the Court seemed to have exercised its discretion not in a judicial manner and the passing of ex parte decree was indicative of inflicting a punishment on the defendants for their failure to appear before the Court without forming a conclusion that such an absence was either the result that the defendants were having nothing in rebuttal to the claim of the plaintiff or otherwise---Impugned judgments/orders/decrees of the Courts below were liable to be reversed in circumstances.

PLD 1978 SC 89 and PLD 1986 Pesh. 19 ref.

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

----O. IX, R. 13---Limitation Act (IX of 1908), S.5---Application for setting aside the ex parte decree was delayed for 4 days---Contention of the defendants was that the attorney had gone to K on the date fixed hence the default in appearance in the Court---Defendants produced the travelling tickets of the attorney to substantiate their plea---Trial Court, in circumstances, should have offered an opportunity to the defendants to lead evidence in support of their contention, but the application was straightaway rejected---Validity---Trial Court had not properly dealt with the case in accordance with law---Judgments/orders/decrees of the Courts below were reversed in circumstances.

Jan Muhammad Khan for Petitioner.

Ziaur Rehman for Respondent.

Date of hearing: 27th March, 2003.

2003 C L C 1213

[Peshawar]

Before Shah Jehan Khan and Ijaz-ul-Hassan, JJ

ZAFAR IQBAL---Petitioner

Versus

Mst. UZMA NOSHEEN and 2 others---Respondents

Writ Petition No.336 of 2003, decided on 4th April, 2003.

(a) Islamic Law---

----Maintenance allowance---Nature---Wife is entitled to claim maintenance for herself if she is forced to live apart from the husband on account of the acts of cruelty attributed to the husband---Maintenance is neither a nature of a gift or a benefit but is an undeniable legal obligation of the husband to maintain his wife who is not staying away from him without just cause.

(b) Islamic Law---

----Marriage---Islamic Law ordains that in order to constitute a valid marriage there should always be a consideration made by the husband in favour of wife---Marriage being a settlement, consideration was a precondition of a valid marriage.

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

----S. 5 & Sched., Items. 1, 2, 3---Constitution of Pakistan (1973), Art. 199-- Constitutional jurisdiction of High Court---Scope---Dissolution of marriage, recovery of dower and maintenance allowance---Valid and cogent reasons had been given for dissolution of marriage, recovery of dower and maintenance allowance---Petitioner had not been able to make out a case of misreading or non-reading of material evidence---Object of taking away right of appeal under family matters specially against dissolution of marriage was meaningful---If the Constitutional jurisdiction of High Court would take place of appeal, then the intent and purpose of Legislature would be frustrated---Finding of fact recorded by the competent lower Court would not be open to interference by the High Court in exercise of its Constitutional jurisdiction under Art.199 of the Constitution unless the same was mala fide, arbitrary, perverse or the Court had acted in excess of its jurisdiction.

Muhammad Tariq Afridi for Petitioner.

Date of hearing: 4th April, 2003.

2003 C L C 1233

[Peshawar]

Before Fazlur Rehman Khan, J

Haji MUHAMMAD ALI ---Petitioner

Versus

MUHAMMAD RAMZAN---Respondent

Civil Revision Petition No. 45 of 2002, decided on 7th March, 2003.

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

----O. XXXVII, R.2---Limitation Act (IX of 1908), Art.159---Suit for recovery of amount on the basis of pronote---Application to appear and defend the suit---Trial Court allowed application of defendant to appear and defend the suit---Plaintiff challenged such order of Trial Court on two grounds, firstly; that application filed by defendant was barred by three days and for condonation of said delay no plausible explanation was offered by the defendant and secondly; that said application was not supported by any affidavit---First ground taken by the plaintiff was without force for the reasons; that service of summons on defendant through substituted service in a newspaper, was a weak type of service and could not be equated with personal service---Words "when the summons is served" appearing in Column No.3.of Art. 159 of Limitation Act, 1908, apparently would mean personal service for purpose of O.XXXVII, R.2, C.P.C. and giving it here any other meaning would lead to miscarriage of justice---Publication of summons in the daily newspaper had shown that same did not substantially conform to summons in Form No.4 of AppendixB', C.P.C.---Procedure under O.XXXVII, C.P.C. was of summary nature for which Special Form of summons had been prescribed by. O.XXXVII, R.2, C.P.C. vide Form No.4, Appendix `B', C.P.C. and provisions of said rule were mandatory in nature and for non-compliance of which by Court, defendant could not be punished---Where law had prescribed a thing to be done in a particular manner, doing of that act in any other manner would amount to illegality---Other ground of plaintiff that application to appear and defend suit was not supported by any affidavit, was also without force, because though said application was not supported by an affidavit but later on defendant had filed same without any objection from plaintiff---Defect, if any, stood cured, in circumstances---Application to appear and defend suit, in circumstances, was rightly accepted by Trial Court.

PLD 1984 Kar. 252 and PLJ 2002 Pesh. 17 ref.

(b) Practice and procedure---

---Where law had prescribed a thing to be done in a particular manner, doing of that act in any other manner would amount to illegality.

Akbar Ali Khan for Petitioner.

Mansoor Abbas for Respondent.

Date of hearing: 7th March, 2003.

2003 C L C 1321

[Peshawar]

Before Malik Hamid Saeed and Qazi Ehsanullah Qureshi, JJ

ZIAULLAH---Petitioner

Versus

MUHAMMAD HUSSAIN AFZAL and 3 others---Respondents

Writ Petition No.68 of 2003, decided on 24th February, 2003.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Civil Procedure Code (V of 1908), S.144---Constitution of Pakistan (1973), Art.199---Constitutional petition ---Ejectment application on ground -of default in monthly payment of rent of the shop---Rent Controller, after substituted service and proclamation in a daily newspaper, proceeded against the tenant ex parte followed by ejectment order---Landlord filed execution petition for possession of the shop which was processed and possession of shop in question was delivered to him despite no personal service was effected on the tenant---Notice was returned un-served even then the executing Court issued warrant of possession on which the Bailiff submitted a report that tenant refused to accept the notice and was not ready to hand over the vacant possession of the shop in question to the landlord---No witness was cited on the warrant that in whose presence tenant refused to accept the notice--­Forcible warrant of possession, however, was ordered by breaking the locks and doors of the suit shop with the aid of the Police---Whole exercise of ejectment application arid possession order consumed about two months---Rent Controller while dealing with the application for setting aside the ex parte order also conducted in the manner not warranted under law and handled the matter just on presumptions and probabilities and dismissed the application for setting aside the ex parte order with the remarks "that in spite of several modes of service the applicant failed to appear in the Court, no sufficient cause of non­-appearance was shown and disputed property was already handed over to the decree-holders "---Appellate Court, in appeal observed that "the execution was already satisfied, the possession was taken over by landlord, the appeal had become infructuous and now it was a matter of civil litigation" and dismissed the appeal---Validity---Observation of the Appellate Court as to the satisfaction of the execution was not only illegal but showed the lack of legal knowledge on the part of the Presiding Officers of both the Courts---Civil Court was competent to recall, review and cancel its order if subsequently found to be illegal, perverse or there was any error on the face of record---In case ex parte decree was set aside the executing Court under S.144, C.P.C. could restitute the possession so taken in pursuance to the execution and no civil suit for possession lay in the circumstances of the case and possession could be restored in original condition as existing at the time of taking the possession---If after forced possession the property was rented out to the other tenant, the person put into possession after dispossession of the original tenant also be liable to ejectment and possession had to be restored to the original tenant---Conduct of proceedings on the application for setting aside the ex parte order on the part of the Courts below was void ab initio and illegal who had not taken the pains to proceed with the matter according to law---Both the Courts did not afford opportunity to the tenant to prove his stance which was rightly deplorable and amounted to condemning a party unheard and also tantamounted to playing with the valuable rights of the affected party--­High Court accepted the Constitutional petition of the tenant and remanded the ejectment petition to the Rent Controller to adjudicate upon the matter strictly according to law with the direction that shop in question shall be, restored to the tenant through the process of the Court forthwith under S.144, C.P.C. in the position existing at the time of taking over the possession of the shop---If the shop had further been rented out to a new tenant, the third party, despite being no party in the case, was also liable to be ejected and to face the consequences arisen out of ex parte decree---High Court further ordered that present judgment be placed on the service record of the Appellate Judge for consideration of the Administration Committee of the High Court at proper time.

S.A. Latif v. J.B. Dubash and 5 others PLD 1970 Kar. 220; Messrs Southern Commercial Corporation, Karachi v. Abdul Hussain and another PLD 1976 Kar. 918 and 1980 CLC 44 rel.

Malik Zab Khan for Petitioner

Abdul Mahboob Khattak for Respondents.

Date of hearing: 24th February, 2003.

2003 C L C 1336

[Peshawar]

Before Talaat Qayyum Qureshi, J

NASIB KHAN---Petitioner

Versus

INAYAT JAN and another --- Respondents

Civil Revision No.521 of 2002, decided on 24th March, 2003.

North-West Frontier Province Pre-emption Act (IV of 1987)---

----Ss. 6 & 13---Suit for pre-emption ---Suit was filed through an attorney, but no power of attorney was annexed with the plaint and was later on placed on the record by the plaintiff---Power of attorney executed by the plaintiff though was duly attested, but no specific powers in the said power of attorney had been given by principal/plaintiff to the attorney---Attorney was not specifically authorized to raise Talb-e-­Muwathibat and Talb-e-Ishhad, though power to raise `Talb-e-Khusumat' was very much mentioned in the said power of attorney---Attorney of the plaintiff being not authorized to raise Talb-e-Muwathibat and Talb-e-­Ishhad, said Talbs, made by him, were without any lawful authority--­Power of attorney must be construed strictly---Courts having failed to appreciate said legal aspect of the case in decreeing the suit their concurrent judgments and decrees were set aside by the High Court and suit filed by plaintiff was dismissed in revision.

Muhammad Mehraban v. Sadaruddin 1995 CLC 1541; Muhammad Aslam and another v. Mst. Inayat Bibi and 4 others 1995 CLC 1572; Murid Hussain v. Muhammad Sharif through L.Rs. 1996 CLC 161 and Eagle Star Insurance Co. Ltd. v. Usman Sons PLD 1969 Kar. 123 ref.

(b) Power of Attorney---

-----Terms of powers of attorney must be construed strictly.

Muhammad Mehraban v. Sadaruddin 1995 CLC 1541; Muhammad Aslam and another v. Mst. Inayat Bibi and 4 others 1995 CLC 1572; Murid Hussain v. Muhammad Sharif through L.Rs. 1996 CLC 161 and Eagle Star Insurance Co. Ltd. v. Usman Sons PLD 1969 Kar. 123 ref.

Sh. Wazir Muhammad for Petitioner.

Qazi Zakiuddin for Respondents.

Date of hearing: 24th March, 2003.

2003 C L C 1342

[Peshawar]

Before Ijaz-ul-Hassan, J

ALI RAZIQ---Petitioner

Versus

SABAR KHAN---Respondent

Civil Revision No.296 of 2001, decided on 25th April, 2003.

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

----S. 96 & O.XLI, Rr.1 & 31---Appeal from original decree---Appellate judgment---Requirements---Judgment of Appellate Court had shown that appeal was dealt with by Appellate Court in a very cursory manner--­Neither issue-wise findings were given by the Appellate Court nor points for determination as envisaged under O.XLI, R.31, C. P. C. were set out and decision given thereon---Statutory right of appeal had conferred a right of hearing the whole dispute on the parties unless expressly restricted and Appellate Court had to consider the controversy entirely afresh, both as regards facts and law and to substitute its own judgment for that of subordinate Court---Appellate judgment should state points arising for determination, decision thereon and reasons for its decision--­Appellate Court need not deal with grounds of appeal which were abandoned by' the counsel during arguments` as term "points for determination" referred to all important questions involved in the case and did not include points which had been abandoned or which were not necessary for disposal of case or which were not urged at hearing of appeal---Appellate Court was to record points for determination, so that it could be determined whether Court had dealt with all the points-­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---Where provisions of O.XLI, R.31, C.P.C. were not complied with, judgment, would not be in accordance with law--­Judgment should have made evident that Court was conscious of the matter, involved and that decision had been pronounced on basis of record---Where a judgment did not substantially comply with requirements of O.XLI, R.31, C.P.C., it was -a bad judgment in the eye of law---Judgment of Appellate Court being violative of provisions of O.XLI, R.31, C.P.C. and passed in a cursory manner without application of judicious mind, was set aside by the High Court and case was remanded to for re-writing the same in accordance with law after hearing the parties again.

Muhammad Qasim and 6 others v. Muhammad Hussain and eight others PLD 2001 Lah. 9; Suleman and others v. Dadoo and others 2001 YLR 764; Mehraban v. Hamid Khan 1985 CLC 1780; Noor Muhammad v. Din Muhammad and others 1986 CLC 2337; Muhammad Saghir Bhatti and Sons v. The Federation of Pakistan and another PLD 1958 SC (Pak.) 221; Syed Ghulam Mustafa Shah and 2 others v. Syed Muhammad Hussain Shah and others PLD 1993 Kar. 369; Ali Muhammad v. Muhammad Hayat and others 1982. SCMR 816; Akhtar Ali Khan and another v. Settlement Commissioner, Peshawar and 4 others 1989 SCMR 506; Mst. Sardar Bibi v. Muhammad Bakhsh and others PLD 1954 Lah. 480; Muhammad Azam Khan and others, v. Rehmat Ali Khan and others PLD 1993 Lah. 836; Haji Khan Baz Khan and 8 others v. Abdur Rahim and 5 others PLD 1993 Pesh. 36; Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others PLD 1970 Lah. 412; Mst. Aisha v. Mst. Fatima and others 1991 CLC 1499; Muhammad Mustaqeem v. Abdul Haleem 1992 CLC 435; Executive Engineer, C&W, Mansehra and 2 others v. Muhammad Nasim Khan and 4 others 2002 CLC 427 and Faridoon v. Shafiullah Khan and others 2002 CLC 1262 ref.

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

----O. XLI, Rr.1 & 2---Courts were duty bound to consider and discuss evidence of both the parties satisfactorily so that it could be visible that Courts had applied their mind and that they had based their findings an proper appraisal of evidence---Courts under law were required to give issue-wise findings in order to ensure that substantial justice had been done and no material prejudice had been caused to parties.

Mazullah Barkandi for Petitioner.

Zafar Javed Durrani for Respondent.

Date of hearing: 2nd April, 2003.

2003 C L C 1348

[Peshawar]

Before Shah Jehan Khan and Ijaz-ul-Hassan, JJ

Syed MUFEED SHAH and another---Petitioners

Versus

PRINCIPAL, KHYBER MEDICAL COLLEGE, PESHAWAR and 4 others---Respondents

Writ Petition No.308 of 2003, decided on 27th March, 2003.

(a) Educational institution---

----Expulsion from Medical College---Candidates who were admitted in Medical College, had passed Ist Professional M.B.,B.S. Examination, but despite availing three chances could not clear one paper of `Anatomy Theory' in 2nd Part of Ist Professional M.B.,B.S. Examination and consequently their names were struck off from college roll and they were expelled from college---Prospectus of college had provided that no candidate would be promoted to the 3rd year M.B.,B.S. Class without passing 1st Professional M.B.,B.S. Part I and Part II University Examination in Anatomy, Physiology and Biochemistry---Regulation embodied in Prospectus had also provided that any candidate who-failed to pass 1st Professional M.B.,B.S. Part I and Part II Examination in three chances, would not avail further chances despite being eligible for such examination and would cease to pursue further medical examination in Pakistan---Action of Authorities not allowing candidates to appear in Ist Professional Part II M.B.,B.S. Supplementary Examination and ­issuing expulsion letters to them was in consonance with various regulations contained in the Prospectus of the College and grievance of candidates, was not well-founded especially when they could not point out any regulation in the Prospectus having element of harshness or violative of Constitution of Pakistan---Mere assertion of candidates that they had been treated differently qua other candidates placed in similar situation, without a positive attempt on, their part to substantiate the same, was of no consequence when uniform regulations were adopted in all Medical Colleges throughout the country and no distinction in that respect was made---Candidates who at the time of obtaining admission in Medical College had given undertaking that they would abide by all rules and regulations contained in Prospectus, could not say that regulation regarding promotion was harsh and not binding on their rights.

Muhammad Afzal Khan v. Principal, Khyber Medical College, Peshawar and 5 others 2002 CLC 49 and Sameen Akbar and 4 others v. Principal and Chairman, Joint Admission Committee, Khyber Medical College, Peshawar and 4 others 2002 CLC 338 ref.

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

----Art. 199---Constitutional jurisdiction, exercise of---Aggrieved person---Only a person whose rights had been infringed could file a petition, under provisions of Art. 199 of the Constitution of Pakistan (1973), except the writ of habeas corpus and writ of quo warranto which could be invoked by any person---Person aggrieved must be a man who had suffered a legal grievance; a man against whom a decision had been pronounced which had wrongfully deprived him of something, or was wrongfully refused of something, which he had a right to demand or which had wrongfully affected his title in something---In order that a person be considered an aggrieved person' within meaning of Art. 199 of the Constitution, he must show that his legal rights had been violated or that he had been deprived of fundamental rights guaranteed under the Constitution on that he sought performance of legal duty by State functionaries and that non-performance of such duty was to result in loss of some personal benefits or advantage or curtailment of a privilege.

M.S.H. Qureshi for Petitioners.

Sabahuddin Khattak for Respondents

Date of hearing: 27th March, 2003.

2003 C L C 1355

[Peshawar]

Before Talaat Qayyum Qureshi, J

SALMA BEGUM---Petitioner

Versus

COLLECTOR, LAND ACQUISITION and others---Respondents

Review Petition No. 11 of 2003, decided on 28th April, 2003.

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

----S. 114 & O.XLVII, R.1---Review of judgment---Conditions---Review of judgment under S.114 read with O.XLVII, C.P.C. could be sought on discovery of new and important matter or evidence which after exercise of due diligence was not within knowledge of the person seeking review or he could not produce the same at the time when decree was passed or order made or on account of some mistake or error apparent on face of record or for any other sufficient reason.

Mobile Eye Service of Pakistan; Karachi v. Director, Social Welfare/Registration Authority, Government of Sindh, Karachi and another PLD 1992 Kar. 183 ref.

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

----Ss. 12(2), 114 & O.XLVII, R.1---Review---Treating review petition as application under S.12(2), C.P.C.---Compromise effected by the counsel of the petitioner---Petitioner, who had sought review of judgment, had prayed that in case review petition filed by him was not maintainable, then the same be treated as application under S.12(2), C.P.C. for setting aside impugned judgment and order because same had been obtained through misrepresentation---Validity---Prayer of petitioner could not be accepted because petition for review which lay under O.XLVII, C.P.C. was entirely different remedy whereas application under S.12(2), C.P.C. was a separate remedy---Application under S.12(2), C.P.C. lay on plea of fraud, misrepresentation or want of jurisdiction, whereas in the present case there was neither any allegation of fraud nor question of jurisdiction of Court had been raised---Only ground for treating petition for review as application under S.12(2), C.P.C. was that there was misrepresentation, but said ground also was not available to the petitioner; firstly because there was no specific bar for counsel for petitioner to effect compromise; secondly said counsel had been authorized through his Wakalatnama to make such a statement---Distinction between fraud and misrepresentation was one of knowledge and intention, for whereas fraud proceeded on basis of a fact or assertion or omission to assert such fact with knowledge as to its falsity, in the context of misrepresentation, assertion or its omission could lack both knowledge or intention---No misrepresentation was found to be existing in the prosecution---Both review petition and application under S.12(2), C.P.C. were dismissed in circumstances.

Messrs Azhar Asia Shipping Agency and another v. Ghaffar Corporation P.E.C.H. Society, Karachi PLD 1995 Kar. 205; Mobile Eye Service of Pakistan, Karachi v. Director, Social Welfare/Registration Authority, Government of Sindh, Karachi and another PLD 1992 Kar. 183 and Mst. Dilbar Hamid v. Dr. Ghulam Bheekh Khan and others 1997 SCMR 610 ref.

Hamid Farooq Durrani, D.A.-G. for Petitioner.

2003 C L C 1370

[Peshawar]

Before Ejaz Afzal Khan, J

TOWN MUNICIPAL ADMINISTRATION, TOWN-1, PESHAWAR---Appellant

Versus

RIFAT HUSSAIN --- Respondent

Regular First Appeal No.49 of 2002, decided on 28th February, 2003.

Civil Procedure Code (V of 1908)---

----S. 80 & O.VIII, R.10---Limitation Act (IX of 1908). S.5---Time-barred appeal---Condonation of delay---Principle---Summonses, in the present case, were issued only . in the name of Administrator of the Municipal Committee notwithstanding the fact that the Secretary, Local Government was also a party---Without service of the Secretary, Local Government, there was absolutely no justification to strike off defence or close his right to cross-examine the witnesses---Appeal; in the present case, though was time-barred and delay had not been explained in accordance with law, the Court could not shut its eyes and allow injustice to reign supreme---High Court, in circumstances, exercised its suo motu revisional jurisdiction to prevent the abuse of the process of the Court and consequent injustice---State, though could not be given different or preferential treatment in a row between citizens and the State, but at the same time it could not be allowed to be treated in a manner defying all the dictates of procedural law meant to protect its rights as litigant.

Sabahuddin Khattak for Appellant.

Abdul Sattar Khan for Respondent.

Date of hearing; 28th February, 2003.

2003 C L C 1383

[Peshawar]

Before Talaat Qayyum Qureshi, J

GHULAM AHMAD and others---Appellants

Versus

GOVERNMENT OF N.-W.F.P. and others---Respondents

Regular First Appeals Nos.85, 97 and 98 of 1997, decided on 30th May, 2003.

Land Acquisition Act (I of 1894)---

----Ss. 4, 9, 10, 11, 23 & 54---Acquisition of land---Market value/compensation, determination of---Both Land Acquisition Collector and Referee Court fixed amount of compensation of acquired land on the basis of one year average without taking into consideration the other factors which were relevant for determining amount of compensation--­Land in question was situated in thickly populated area, on the main road surrounded by market and other shops---Land not only had potential value for commercial purposes, but had also a lot of potential for residential purposes---Not only Collector Land Acquisition, but also the Referee Judge had ignored the Revenue Record as well as potential value of the acquired land---Both Land Acquisition Collector and Referee Court ad also failed to take into consideration the sales of adjacent land made shortly before and after notification with regard to acquisition of land in question--­Appellate Court accepting appeal enhanced compensation of acquired land holding owners to be entitled to 15% compulsory acquisition charges accordingly.

Government of N.-W.F.P. through Collector, Mardan and others v. Abdul Samad Khan and others PIED 2002 SC 422; Nisar Ahmad Khan and others v. L.A.C., Swabi and others PLD 2002 SC 25; Province of Punjab through Collector, Attock v. Engr. Jamil Ahmad Malik and others 2000 SCMR 870 and Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and others 1999 SCMR 1647 ref.

Muhammad Alam Khan and Muhammad Aman Khan for Appellants.

Miss Musarat Hilali, A.A.-G. for Respondents.

Date of hearing: 12th May, 2003.

2003 C L C 1401

[Peshawar]

Before Shahzad Akbar Khan, J

AJAB KHAN---Petitioner

Versus

PARVEZ---Respondent

Civil Revision No.365 of 2002, decided on 31st March, 2003.

North-West Frontier Province Pre-emption Act (X of 1987)---

---Ss. 6 & 13---Suit for pre-emption---Suit was filed on two grounds, viz. being Shafi Khalit' andShafi Jar'---Suit was, however, concurrently decreed by Courts below on the ground of plaintiff being a co-sharer in the suit land which ground was neither taken by him in his plaint nor he had produced any evidence in that respect---Plaintiff also did not file any application for amendment of the plaint within period of limitation to add new ground of co-sharership in the plaint---Evidence produced by plaintiff was purely on ground of co-sharership in the suit land; but he did not speak a single word about two grounds i.e. 'Shafi Khalit' and "Shafi Jar" which were taken in the plaint ---Factuin of co­sharership having not been pleaded in the plaint, plaintiff could not get any benefit from it---Without amendment in the plaint neither additional qualification could be pleaded nor evidence on such qualification could be adduced---Plaintiff having failed to get necessary amendment in his plaint, he was not entitled to any relief on a ground which was not pleaded by him---Evidence recorded on such ground also could not be considered in favour of the plaintiff---Concurrent judgments and decrees of Courts below were set aside in revision being contrary to law.

1984 CLC 3379; 1991 CLC 140; 1992 CLC 15; PLD 1997 Lah. 93; 2002 MLD 967 and Budho and others v. Ghulam Shah PLD 1963 SC 553 ref.

Maazullah Barkandi and Gul Sadbar Khan for Petitioner.

Javaid A. Khan for Respondent.

Date of hearing: 21st February, 2003.

2003 C L C 1420

[Peshawar]

Before Malik Hamid Saeed and Ijaz-ul-Hassan, JJ

SAJJAD AHMAD---Petitioner

Versus

Mst. NAEEMA SHAFIQ and 3 others---Respondents

Writ Petition No.423 of 2003, decided on 14th April, 2003.

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

----Ss. 12 & 14---Constitution of Pakistan (1973), Art. 199--­Constitutional jurisdiction of High Court---Scope---Matter related to recovery of dower, possession of house and recovery of maintenance allowance by the wife and suit for restoration of conjugal rights by the husband---Both Family Court and Appellate Court had given plausible reasons in support of conclusions arrived at by them and no case of misreading or non-reading of evidence had been made out---Concurrent findings of Courts below could not successfully be challenged in Constitutional jurisdiction unless Courts below were found to have exceeded, jurisdiction, acted without jurisdiction or findings were shown to have been based on no evidence---Constitutional petition also would not lie to challenge an order on ground that evidence in the case was not correctly appreciated because finding of facts recorded by Courts of competent jurisdiction could not be disturbed simply on ground that another view was possible on the same evidence---High Court in its Constitutional jurisdiction could not sit as a Court of Appeal and could not substitute findings of facts recorded by Courts below on such matters---Appraisal or evaluation of evidence usually was not made in Constitutional petition---Such exercise was essentially undertaken by Trial Court---High Court would not interfere with judgment and decree passed by a Court of competent jurisdiction since it was within its exclusive jurisdiction to believe or not to believe evidence; and that Court had given reasons in support of conclusions arrived at by it--­Constitutional petition would not lie to challenge an order in appeal on ground that evidence in the case had not been properly appreciated---In absence of any flaw in concurrent findings of fact's recorded by Courts below, Constitutional petition was dismissed.

Khalil Ahmad v. Allah Rakhi and another 1994 MLD 119 and Muhammad Ibrahim v. Mst. Farzana and another PLD 1994 Kar. 255 ref.

Muhammad Zahir Shah for Petitioner.

Date of hearing: 14th April, 2003.

2003 C L C 1428

[Peshawar]

Before Talaat Qayyum Qureshi, J

MIR NAWAZ KHAN and others---Petitioners

Versus

GUL AYUB KHAN and another---Respondents

Civil Revision No. 78 of 1997, decided on 13th May, 2003.

Civil Procedure Code (V of 1908)---

----S. 35-A, O.II, R.2 & O.XLI, R.33---Imposition of special costs--­Jurisdiction of Appellate Court---Suit was dismissed by Trial Court holding that the same was hit by provisions of O.II, R.2, C.P.C.--­Appellate Court on appeal not only upheld judgment of Trial Court, but also directed the plaintiffs to pay special costs and counsel's fee to the defendants---Validity---To award compensatory/special costs under S.35-A, C.P.C., it was necessary that Court should reach to the conclusion that claim or defence was false or vexatious to the knowledge of parties asserting the same---Objection to such claim or defence had to be taken at the earliest possible opportunity and such claim or defence should not be disallowed, withdrawn or abandoned wholly or in part, but said factors were to be seen by the Trial Court---If Trial Court had come to the conclusion that said conditions were fulfilled, then compensatory/special costs could be awarded to the other party--­Appellate Court under proviso to O.XLI, R.33, C.P.C. was precluded from making such an order for payment of compensatory/special costs--­Imposition of special costs by Appellate Court and its direction for payment of ,counsel's fee, in absence of any material with regard to payment of said fee by defendants to their counsel, was unjustified---Order of Appellate Court with regard to imposition of special costs and payment of counsel's fee, were set aside by, High Court in revision.

Sharaf Din and 7 others v. Mst. Maqbool Jan 1995 MLD 1602 and Azad Government v. Afzal Shah 1996 MLD 260 ref.

Muhammad Amin Khattak for Petitioners.

2003 C L C 1439

[Peshawar]

Before Talaat Qayyum Qureshi, J

SHAIBAR---Petitioner

Versus

BABU---Respondent

Civil Revision No.478 of 1998, decided on 13th May, 2003.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13 & 32---Suit for pre-emption ---Making of Talbs, proof of--­Plaintiff had failed to mention; the date, time and place where Talb-e­-Muwathibat was made, not only in his plaint, but also in his statement before the Court---Suit could be dismissed on that score alone---Talb-e-­Ishhad was also not made by plaintiff according to law because notice of Talb-e-Ishhad was attested by two witnesses, but plaintiff had examined only, one witness and other witness was not examined---Non-examination of second witness of Talb-e-Ishhad was fatal to the case of plaintiff---Suit filed by plaintiff was also barred by time as it was filed after four and half months from registration of sale-deed---Contention of plaintiff that period of limitation be counted from the date of attestation of mutation because . Sub-Registrar had failed to give notice as required by S.32 of North-West Frontier Province Pre-emption Act, 1987, was repelled because sale transaction had taken place through registered sale-deed and thus, time for filing suit would start from the day the sale-deed was registered---Trial Court had rightly dismissed the suit and Appellate Court was not justified to set aside the same---Judgment and decree of Trial Court were restored and that of Appellate Court were set aside by High Court in revision.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Mst. Umatul Latif v. Mst. Zaitoon Bibi 2001 MLD 335 and Maulana Noorul Haq v. Ibrahim Khalil 2000 SCMR 1305 ref.

Muhammad Waris Khan for Petitioner.

Abdul Latif Afridi for Respondent.

Date of hearing: 13th May, 2003.

2003 C L C 1450

[Peshawar]

Before Malik Hamid Saeed and Ijaz-ul-Hassan, JJ

ABDUL FAHIM---Petitioner

Versus

Mst. SHAHNAZ BEGUM and another---Respondents

Writ Petition No.407 of 2003, decided on 14th April, 2003.

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

----S. 14(2)(c)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Taking away right of appeal in family matters---Object of taking away right of appeal in family matters being meaningful--­Constitutional jurisdiction of High Court could not take place of appeal--­Constitutional petition was not maintainable.

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

----S. 5 & Sched.---Maintenance---Entitlement---Wife was entitled to claim maintenance for herself if she was forced to live apart from husband on account of acts of cruelty attributed to him---Maintenance was neither in nature of gift nor a benefit, but was an undeniable legal obligation of husband to maintain his wife when she was not staying away from him without just cause.

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

----Ss. 5, Sched., 10 & 11---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Appraisal of evidence by Family Court--­Scope---Appraisal of evidence was the function of Family Court which had exclusive jurisdiction in the matter---Finding of fact recorded by Family Court could not be interfered with in Constitutional jurisdiction unless the same was shown to be based on misreading or non-reading of material evidence and no reasons had been given in support of conclusion arrived at---Order passed by the Family Court could not be interfered with in Constitutional jurisdiction by the High Court unless same was mala fide, arbitrary, perverse or Court had acted in excess of its jurisdiction.

Amin Khattak for Petitioner.

Date of hearing: 14th April, 2003.

2003 C L C 1645

[Peshawar]

Before Nasirul Mulk and Ijaz-ul-Hassan Khan, JJ

Haji MUHAMMAD NAQEEB KHAN and another---Petitioners

Versus

Haji ZAFAR KHAN and 6 others---Respondents

Writ Petition No.710 of 2002, decided on 22nd May, 2003.

(a) North-West Frontier Province Local Government Elections Rules, 2000---

-----R. 40(6)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Recount of votes by Returning Officer---Scope---Making application to Returning Officer was a prerequisite for ordering recount---Duty of Returning Officer to make speaking order on such application giving grounds regarding its reasonableness---In absence of application for recount, Returning Officer had no authority to undertake exercise of recount of votes.

(b) North-West Frontier Province Local Government Elections Rules, 2000---

----Rr. 40(6). 81(d) & 84(a)---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Election of Nazim and Naib-Nazim--- Change of result by Returning Officer after recount of votes in absence of application by any contesting candidate---Election Tribunal declared election void and ordered re-election instead of declaring petitioners as duly elected, who had been declared as returned candidates after original count---Validity---Returning Officer had no authority to order recount the votes in absence of any application for the same---In absence of such application and order of Returning Officer thereon, conclusion of Tribunal that there was no application within meaning of R.40(6) of North-West Frontier Province Election Rules, 2000, would not warrant any interference in Constitutional jurisdiction---Generally, first result should have been declared as valid, if recount was to be declared void--­Tribunal had detected flaws in original count and at the time of recount---­Statement of Returning Officer showed that many changes had been made in recount of most of the polling stations---Margin of difference in votes between winner and runners-up in first count and in recount being very small, Tribunal in all fairness had rightly declined petitioners as returned candidates---Decision of Tribunal to declare election as a whole void did not call for any interference---High Court dismissed Constitutional petitions.

S. Masood Kausar, Bar-at-Law for Petitioners.

Qazi Muhammad Anwar and Muhammad Alam Khan for Respondents.

Date of hearing: 1st April, 2003.

2003 C L C 1658

[Peshawar]

Before Talaat Qayyum Qureshi, J

IBRAHIM SAID---Petitioner

Versus

ZAHID SHAH---Respondent

Civil Revision No.79 of 2003, decided on 13th June, 2003.

Civil Procedure Code (V of 1908)---

----S. 96 & O.XLI, R.1---Court Fees Act (VII of 1870), Ss.6 & 28--­Appeal against original decree---Affixation of court-fee on memo. of appeal---One of the grounds on which appeal was dismissed was that appellant had failed to affix court-fee on memo. of appeal---Appeal remained pending for more than two and half years, but during that period, Appellate Court did not give any direction to the appellant to affix court-fee on memo. of appeal---Appeal would be deemed to have been filed on date of its original presentation notwithstanding the fact that court-fee was supplied after period of limitation---If court-fee was later on affixed, that would not render appeal barred by time---Since Appellate Court had failed to provide specific time for appellant to affix court-fee on memo. of appeal and had dismissed his appeal without giving such specific time, it had failed to properly exercise jurisdiction vesting in it--Judgment and decree passed by Appellate Court, were set aside by High Court and case was remitted with direction to provide specific time to appellant to affix court-fee on memo. of appeal and then to decide appeal on merits in accordance with law.

Mirza Ghulam Hussain v. Muhammad Bashir 1981 CLC 1689; Wilayat Khatoon v. Khalil Khan and others PLD 1979 SC 821; Muhammad Sharif v. Maqsood Ali and others 1984 SCMR 90; Hashmat Ali v. Muhammad Sharif and others 1986 SCMR 405; Siddique Khan and others v. Abdul Shakoor Khan and others PLD 1984 SC 289; P.M. Amir v. Qabool Muhammad Shah 1999 SCMR 1049, and Sikandar Khan v. Muhammad Ashraf PLD 2003 Lah. 398 ref.

Abdul Latif Afridi for Petitioner

Qazi Zakiuddin for Respondent.

Date of hearing: 13th June, 2003.

2003 C L C 1864

[Peshawar]

Before Mian Shakirullah Jan, C.J., and Shahzad Akbar Khan, J

FAZAL MUHAMMAD ---Appellant

Versus

LAND ACQUISITION COLLECTOR/A.C., SWABI and another---Respondents

Regular First Appeal No.28 of 1997, decided on 25th June, 2003.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 30---Acquisition of land---Compensation, determination of--­Claim of higher price by the landowners---Burden of proof---Contentions of the landowners were that the compensation determined by the Collector and upheld by the lower Courts was not fair as the potential value of the land was not taken into consideration and that acquired land being located at a short distance from the village was fit for the purpose of construction and could fetch higher price ---Validity---Patwari Halqa was examined who produced the relevant record including the one about yearly average---Photostat copies of certain mutations were also produced by the said witness who admitted that the suit-land was "Barani" and not irrigated through canal or tubewell---Another witness stated that he had sold land in the said Wand' at the price as claimed by the landowners but no mutation or other document could be produced by him nor any party to the .transaction was examined to substantiate the version of the said witness---Mutations which had been produced by the landowners could not be taken into consideration for the reasons that most of them were photostat copies and being secondary evidence, could not be admitted to evidence as no permission was obtained from the Trial Court for the production of secondary evidence and that no party to the transaction was produced---Mere production of a mutation as evidence was not sufficient to believe that the price mentioned therein was entered correctly and bona fide as owners of the lands were burdened with the duty to produce same party to the transaction on which the reliance was placed---Compensation had been fixed by the Collector on the basis of one yearly average which was one of the legal modes of determining the compensation---Land was admittedlyBarani' and un-irrigated and no request by the landowners was made to the Trial Court for appointment of Local Commission to ascertain the location or any potential value of the suit-land---High Court, on existing evidence and the Revenue Record upheld the price of the land fixed as compensation by the Collector and the Trial Court considering the same to be proper.

PLD 1976 Pesh. 50 ref.

Ghulam Ali for Appellant.

Malik Ahmad Jan, D.A.-G. for Respondent No. 1.

M. Alam Khan for Respondent No.2.

Date of hearing: 21st May, 2003.

2003 C L C 1870

[Peshawar]

Before Ejaz Afzal Khan, J

Haji ABDUL SATTAR---Appellant

Versus

Dr. SHAHID INAYAT and another---Respondents

First Appeals from Order Nos.44 to 32 and 53 to 60 of 2001, decided on 12th May, 2003.

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

----S. 17(8)---Ejectment of tenants---Tenants, appellants had denied their relationship of landlord and tenant with the respondents and averred that they being tenants of T and A, the other successor-in-interest of the deceased landlord had been paying rent to them even during the lifetime of their predecessor-in-interest and as such the respondents had no locus standi much less a cause of action to institute the ejectment petitions--­Rent Controller without framing a preliminary issue and handing down a verdict about the relationship of landlord and tenant directed the tenants to deposit the rent and on failure of the tenants to deposit the rent their defence was struck off and ordered their ejectment ---Validity---Such denial by the tenants being not frivolous, Rent Controller was bound to. frame a preliminary issue about the existence of such relationship because the same being a foundational fact and a condition precedent for the exercise of jurisdiction vested in the Rent Controller was to be determined first---Rent Controller, without determining the jurisdictional fact directed the tenants to deposit rent and in the wake of their failure proceeded to strike off their defence---Rent Controller in circumstances had not acted in accordance with law---High Court allowed the appeal of the tenants, set aside the impugned orders and sent the case back to the Rent Controller for decision afresh after framing preliminary issue.

Muhammad Ashraf v. Mst. Qamar Sultana PLD 2003 SC 228 and Ghulam Rasool v. Mian Khursheed Ahmad 2000 SCMR 632 distinguished.

Mst. Razia Begum and another v. Senior Civil Judge/Rent Controller, Charsadda and 2 others PLD 1996 Pesh. 8; Ahmad Shah v. Mst. Bibi Sakhia and another PLD 1990 Lah. 48; Rehmatullah v. Ali Muhammad and others 1983 SCMR 1064 and Muhammad Daud v. Mst. Surrya Iqbal and another PLD 2000 Pesh. 54 ref.

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

----S. 17(8)---Ejectment---No right of appeal from an order passed under S.17(8), Cantonments Rent Restriction Act, 1963 having, been provided any illegality in passing the said order could be urged as a ground in appeal from the first order before the High Court.

Mian Muhammad Abdullah v. Sheikh Nabuddin 1971 SCMR 336 and Messrs Asad Brothers v. Ibadat Yar Khan 1991 SCMR 986 ref.

Qamar Zaman Tangi for Appellant.

Abdul Samad Khan for Respondents.

Date of hearing: 12th May, 2003.

2003 C L C 18

[Quetta]

Before Aman Ullah Khan and Fazal‑ur‑Rehman, JJ

MUHAMMAD AKRAM and others‑‑‑Petitioners

Versus

SELECTION COMMITTEE FOR ADMISSION IN FIRST YEARS M.B.B.S.

BOLAN MEDICAL COLLEGE and others ‑‑‑Respondents

Constitutional Petitions Nos.44, 220, 225 256 and 262 of 2002, decided on 9th September, 2002.

(a) Educational institution‑‑‑

‑‑‑ Admission to Medical College‑‑‑Quota system‑‑‑Object and scope—­No. 1 repugnant to the concept of equality before law‑‑‑Object of allocating seats on quota basis for every district is to bring the backward areas at par with the developed areas of the Province where better facilities of getting education are available‑‑‑Classification of students, on district quota is not repugnant to the concept of equality before law, rather legal protection has been accorded to the quota system‑‑‑Such classification is meant to foster the object of Art.37(c) of the Constitution‑‑‑State is under obligation to promote higher education amongst the people of backward areas on merits and simultaneously, also to accommodate the interests of socially or economically disadvantaged sections of the people for the purpose of nurturing genuine rather than ostensible equality.

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

‑‑‑‑Arts. 22(4), 25, 37 & 38‑‑‑Equality of citizens‑‑‑Scope‑‑‑Justifiable classification‑‑‑Principles of equality as enshrined in Art.25 of the Constitution, emphasize that amongst the equal class, law should be equally administered‑‑‑Denial to enjoy such rights impinges upon the guarantees contained in Art.4 of the Constitution‑‑For the purpose of justifiable classification, provisions of Art.25 of the Constitution have to be read with Ars.22(4), 37 & 38 of the Constitution.

Mst. Attiya Bibi and others v. Federation of Pakistan and others 2001 SCMR 1161 ref.

(c) Interpretation of Constitution‑‑‑

----Principles‑‑‑Elementary rule of interpreting the provisions of the Constitution is to give effect to every part and every word of the Constitution‑‑‑Courts have to reconcile Constitutional provisions harmoniously, instead of pointing out inconsistencies and contradictions between the different provisions‑‑‑Courts have to avoid interpretation which renders any article meaningless or inoperative and should construe the provisions in a manner which renders every word operative rather than leaning in favour of one which may render some words idle and inoperative.

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

‑‑‑‑Art. 25‑‑‑Equality of citizens‑‑‑Reasonable classification‑‑‑Principles.

Following are the principles relating to reasonable classification:‑‑

(i) Equal protection of law does not envisage that every citizen is to be treated alike in all circumstances but it contemplates that persons similarly placed are to be treated alike.

(ii) Reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis.

(iii) Different law can validly be enacted for different sexes, persons in different age groups, persons having different financial standings and persons accused of heinous crimes.

(iv) No standard of universal application to test reasonableness of classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances.